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 ■v-: • 
 

 
 W. SILVER WOOD C0PCi^6. i"l^'-"i 
 
 6, NEW COURT, 
 
 ON 
 
 THE LAW 
 
 EXECUTORS AND ADMINISTRATORS 
 
 BY 
 THE RIGHT HONOURABLE 
 
 SIR EDWARD YAUGHAN WILLIAMS 
 
 (late one of the judges of her majesty's court of common pi.eas). 
 
 3inti) (B'hition 
 
 THE HONOURABLE 
 
 SIR ROLAND L. VAUGHAN WILLIAMS, KNT., 
 
 one of the justices of her majesty's hk;h court of justice. 
 
 IX TWO VOLUMES. 
 
 VOL. I. 
 
 LONDOX : 
 
 STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, 
 SWEET AND MAXWELL, LIMITED, 3, CHANCERY LANE, 
 
 ^ato |3ui)lislur3 anb poohscUcrs. 
 
 18;);].
 
 LONDON : 
 BRAUBLRY, AGNEW, Si CO. LD., PRINTERS, WHITEFEIARS. 
 
 T
 
 
 
 PKEFACE 
 
 T(J THE 
 
 NINTH EDITION. 
 
 It is with great diffidence that I offer to the Pro- 
 fession this Edition of my Father's groat Avork. 
 
 In the hist Edition, the Editors, in their desire to 
 leave as much as possible mi altered the text of the 
 Author, did not attempt to do more than note up the 
 cases and statutes which had been decided and passed 
 sijice the last Edition, for which Sir Edward Vaughan 
 Williams was personally responsible, was published. 
 What was done in the way of alteration was chiefly 
 the work of my late Brother, Walter Yerc Vaughan 
 Williams. 
 
 Tlie lapse of a quarter of a century since the last 
 Edition by Sir Edward Vaughan Williams has made 
 it impossible to avoid altogether alterations of and 
 additions to the text of the Author. It was impossible 
 to introduce into the new Edition, by means of notes 
 only, great changes, of which the Judicature Acts and 
 the Married Women's Property Acts are examples, and 
 the text, therefore, had necessarily to be somewhat 
 altered ; but feeling how much the authority of the 
 
 7Vno
 
 PREFACE. 
 
 book depends ou the maintenance of tlic old text, 1 
 have tried to make these alterations as small as- 
 possible, and I hope that critics Avill indulgentl}^ 
 remember that the problem how to maintain the text 
 and yet introduce the new matter was one of great 
 dithculty, and which could not be worked out with 
 absolute uniformity. Moreover, day by day, as the 
 work of this new Edition proceeded, I became more 
 and more filled Avith admiration for the original, and 
 more impressed witli my own inability as Editor to 
 supply my Father's place. This it is which makes me 
 ask the indulo-ence of the Profession towards what has 
 been a great effort on my part. I, personally, have 
 made every additifti and alteration, except that my 
 friend ]Mr. Eustace Smith, of the Chancery Bar, was 
 good enough to re-draft for me the Chapters upon 
 Equity Practice. 
 
 I have also to thank my friend and late pupil, Mr. 
 John Ogle, of the Inner Temple, for constant assistance 
 throughout the whole of the necessarily long period 
 devoted to the preparation of this Edition. Mr. 
 Wascy Sterry, of Lincoln's Inn, prej)ared the Index 
 for me and has also afforded me much assistance 
 by his conscientious work and lawyer-like accuracy 
 Avheu acting as my amanuensis. My friend and 
 late pupil, IMr. E. W. Hansell, of the Inner Temjjle, 
 also gave me his assistance, esjDccially with the 
 Chapters on Common Law Practice. In conclu- 
 sion I wish to say that I finished my work shortly
 
 PREFACE. V 
 
 before tlie Spring Circuit, and therefore, so far as I 
 am concerned, the cases and statutes only come down 
 to that date. 
 
 I am haj^py to say, however, that the Publishers 
 have arranged with my friend Mr. John Ogle to 
 prepare the Addenda, which will be found after the 
 Index of Cases. In this he has given references to all 
 the cases lately decided, and has also dealt with the 
 Trustee Act, 1893, which was passed during the 
 present Session of Parliament, and which comes into 
 force on January 1st, 1894. This Act, wdiile it in no 
 way alters the law affecting the powers and liabilities 
 of trustees, consolidates the various Statutes relating 
 to those subjects which have beej^ passed from time to 
 time. 
 
 A table will be found at the end of the Addenda 
 setting; out the short efiect of each section of the new 
 Act, and indicating the various sections of preceding- 
 Statutes repealed and re-enacted by it. 
 
 P. V. W. 
 
 Xovcinhrr, 1893.
 
 THE STATUTE 1 VICT. c. 26. 
 
 Meaning of 
 certain woixls 
 in tbis Act ; 
 
 ■ Will 
 
 12 Car. II. 
 c. 121. 
 
 14 &• ir, Car. 
 II. (I;. 
 
 'Keal estate: 
 
 "Personal 
 estate : " 
 
 An Act for the Amcnchnent of the Laws with respect 
 to WilU. [3rd July, 1837.] 
 
 Be it enacted, That tlie words and expressions herein- 
 after mentioned, Avhicli in their ordinary signification have 
 a more confined or a difierent 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 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 taldnrj away the Court of 
 Wards and liveries and tcn^ircs, in capite and hy knights 
 service, and iinrveyancc, and for scitUny a revenue upon his 
 Majestji in lien 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 iakiny aivaij the Court of Wards and liveries and tenures 
 in capite and h]i hnicjhts service, and to any other testa- 
 mentary disposition; and the words "real estate" shall 
 extend 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 
 undivided share thereof, and to any estate, right, or interest 
 (other than a chattel interest) therein ; and the words "per- 
 sonal estate " shall extend to leasehold estates and other 
 chattels real, and also to monies, shares of government and 
 other funds, securities for money (not being real estates), 
 debts, choses in action, rights, credits, goods, and all other
 
 THE WILLS ACT. vil 
 
 property -whatsoever which by law devolves upon the exe- i vict. e. 26. 
 
 cutor or administrator, and to any share or interest therein ; 
 
 and every word importing the singular number only shall Number -. 
 
 extend and be applied to several persons or things as well as 
 
 one person or thing ; and every word importing the masculine Gender : 
 
 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 Repeal of the 
 thirty-second year of the reign of King Henry the Eighth, wnis ^sVh. 
 intituled The Act of WUls, Wards, and Primer Seisins, ™\^: li ""'''^ 
 icherehi/ a Man may devise Tico parts of his Land ; and also "^'J^l- c. 5. 
 an Act passed in the thirty-fourth and thirty-fifth years of 
 the reign of the said King Henry the Eighth, intituled Tlie 
 Bill concerninq the explanation of Wills: and also an Act i^ Car. L 
 
 Sefts. 2, c. 2 
 
 passed in the Parliament of Ireland, in the tenth year of (i). ' 
 
 the reign of King Charles the First, intituled An Act how 
 
 Lands, Tenements, etc., may he disposed hy Will or otherwise, 
 
 and concerninq Wards and Primer Seisins ; and also so Sects. 5, 6, 12, 
 
 19 20 ■''I & 
 much of an Act passed in the twenty-ninth year of the 22'oftheStn- 
 
 reign of King Charles the Second, intituled An Act for 99* Car. n!"'"^'' 
 
 Prevention of Frauds and Perjuries, and of an Act passed c- " = 7^.0. 
 
 "^ ' ^ c. 12 (D. 
 
 in the Parliament of Ireland in the seventh year of the 
 
 reign of King William the Third, intituled An Act for Pre- 
 vention of Frands and Perjuries, as relates to devises or 
 bequests of lands or tenements, or to the revocation or 
 alteration of any devise in writing of any lands, tenements, 
 or hereditaments, or any clause thereof, or to the devise of 
 any estate j:)?;?" autre vie, or to any such estates 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 Sect. 14 of a k 
 and fifth years of the reign of Queen Anne, intituled An '' ""^' ^' 
 Act for the AmendmoU of the Law and tlie better Advance- 
 ment of Justice, and of an Act passed in the Parliament of 
 Ireland in the sixth year of the reign of Queen Anne, in- ^ '\""<^' c. 10 
 tituled An Act for the Amendment oj tlie Laiv and the letter
 
 vni 
 
 THE WILLS A(.:T. 
 
 1 Vict. c. 26. 
 
 Sect. 9 of U 
 G. n. c. 20. 
 
 25 G. IL c. 6 
 (except as to 
 colonies). 
 
 25 G. IL c. 11 
 (I). 
 
 55 G. in. 
 c. 192. 
 
 All property 
 may be dis- 
 posed of by 
 Will; 
 
 comprising 
 customary 
 
 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 George the Second, intituled An 
 Act to amend tlie Law concerning Common Ilecoveries, and 
 to cxjAain and amend an Act made ill the twenty -7iinth year 
 of the reign of King Charles the Second, intituled " An Act 
 for Prevention of Frauds and Perjuries,'* as relates to estates 
 2)ur 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 imtting an end to certain Doubts and 
 Questions relating to the Attestation of Wills and Codicils 
 concerning Real Estates in that inirt <f Great Britain called 
 England, and in His Majesty's Colonies and Plantations in 
 America, 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 imtting an end to certain Doubts and Questions 
 relating to the Attestations of Wills and Codicils concerning 
 Heal 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 tlic Disposition of Copyhold 
 Estates by Will, shall he and the same are hereby repealed, 
 except so far as the same Acts or any of them respectively 
 relate to any Wills or estates pur autre vie, to which this Act 
 does not extend. 
 
 III. And be it further enacted. That it shall be lawful for 
 every person to devise, bequeath, or dispose of, by his Will 
 executed in manner hereinafter required, all real estate and 
 all personal estate {a) 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 the power hereby given shall extend 
 
 (a) See infra, p. 2.
 
 THE WILLS ACT. IX 
 
 to all real estate of the nature of customary freehold or tenant i Vict. c. 26. 
 right, or customary or copyhold, notwithstanding that the freeholds and 
 testator may not have surrendered the same to the use of copyholds 
 
 "^ _ without sur- 
 
 his Will, or notwithstanding that, being entitled as heir, render and_ 
 devisee, or otherwise to be admitted thereto, he shall not tance, and 
 have been admitted thereto, or notwithstanding that the f.^° ^ 
 
 ' " them as can- 
 
 same, in consequence of the want of a custom to devise or "ot now be 
 
 devised ; 
 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 according to the power contained in this Act, if this Act 
 had not been made : and also to estates pur autre vie (b), estates pur 
 whether there shall or 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 incor- 
 poreal hereditament ; and also to all contingent, executory, 
 or other future interests in any real or personal estate (c), contingent 
 whether the testator may or may not be ascertained 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 rights of entry 
 
 and 23roperty 
 
 other rights of entry ; and also to such of the same estates, acquired after 
 interests and rights respectively, and other real and personal ^^g'^^Yill'^ ° 
 estate as the testator may be entitled to at the time of his 
 death, notwithstanding that he may become entitled to the 
 same subsequently to the execution of his Will (d). 
 
 IV. Provided always, and be it further enacted, That As to the fees 
 
 ■^ and fines pay- 
 
 where any real estate of the nature of customary freehold able by de- 
 
 . 1 1 1 1 • 1 1 1 visees of cus- 
 
 or tenant right, or customary or copyhold, might, by the tomaryand 
 
 {b) See ivfra, p. 60L (c) See infra, p. 771 et seq. 
 
 ((/) See infra, pp. 3, 4, 174.
 
 THE WILLS ACT. 
 
 1 Vict. c. ■2t3. 
 
 copyhold 
 estates. 
 
 AVills or ex- 
 tracts of Wills 
 of customary 
 freehoMs to be 
 entered on the 
 conrt rolls : 
 
 custom of the manor of which the same is holden, have been 
 sniTcuderecl 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 he entitled thereto by virtue of 
 such Will shall be entitled to be admitted, except upon pay- 
 ment of all such stamp duties, fees, and sums of money as 
 would have beeu lawfully due and payable 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 
 surrendered 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 Avliich 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 admittance of such person so entitled or claiuaiug to be 
 entitled to the same real estate as aforesaid. 
 
 Y. 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
 
 THE WILLS ACT. XI 
 
 SO much thereof as shall contain the disposition of such real i vict. c. 26. 
 
 estate, to he entered on the court rolls of such manor or 
 
 reputed manor : and when any trusts are declared hy 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 : and when any and the lord to 
 
 such real estate could not have been disposed of by Will if ^l^^ g^me fine, 
 
 this Act had not been made, the same fine, heriot, dues, &c. , when such 
 
 ' ^ ' ' estates are not 
 
 duties and services shall be paid and rendered by the devisee now devisable 
 
 . . as he would 
 
 as would have been due from the customary heir in case of the have been from 
 descent of the same real estate, and the lord shall as against of ^^lescent °'^^^ 
 the devisee of such estate have the same remedy for recovering 
 and enforcing such fine, heriot, dues, duties, and services as 
 he is 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 Estates ^itr 
 
 autre I'ie. 
 
 Will shall be made of any estate _2JU7' 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 assets by descent as in the case of freehold land in fee 
 simple ; and in case there shall be no special occupant of 
 any estate j^u^ autre vie, whether freehold or customary free- 
 hold, tenant right, customary or copyhold, or of any other 
 tenure, and whether a corporeal or incorporeal hereditament, 
 it shall go to the executor or administrator of the party that 
 had the estate thereof by virtue of the grant; and if the 
 same shall come to the executor or administrator 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 applied and 
 distributed in the same manner as the personal estate of the 
 testator or intestate (c). 
 
 VII. And be it further enacted, That no Will made by any No 'VYil] of a 
 
 , person nnder 
 
 person under the age of twenty-one years shall be valid (/). age valid ; 
 
 VIII. Provided also, and be it further enacted, That no 
 
 (e) See infra, pp. 601, 1540. ( f) See infra, p. 12.
 
 Xll 
 
 THE AVILLS ACT. 
 
 1 Vict. c. 26. 
 
 nor of a. feme 
 covert, except 
 such as might 
 now be made. 
 
 Every Will 
 sball be in 
 writing, and 
 signed by the 
 testator in the 
 presence of 
 two witnesses 
 at one time. 
 
 Appointments 
 by Will to be 
 executed like 
 other Wills, 
 and to be valid, 
 although other 
 required so- 
 lemnities are 
 not observed. 
 
 Soldiers' and 
 mariners' 
 Wills ex- 
 cepted. 
 
 Act not to 
 affect certain 
 provisions of 
 11 Geo. IV. & 
 1 Wm. IV. c. 
 20, with re- 
 spect to Wills 
 of petty offi- 
 cers and sea- 
 men and 
 marines. 
 
 AVill made by auy married woman shall be valid, except such 
 a "Will as might have beeii made by a married woman before 
 the passing of this Act (g). 
 
 IX. And be it further enacted, That no Will shall be valid 
 unless it shall be in writing and executed in manner herein- 
 after mentioned {}() ; (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 {hh), and such signature 
 shall be made or acknowledged 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 (i). 
 
 X. And be it further enacted. That no appointment made 
 by Will, in exercise of any power, shall be valid, unless the 
 same be executed in manner hereinbefore required; and every 
 Will executed in manner hereinbefore required shall, so 
 far as respects the execution and attestation thereof, be a 
 valid execution of a power of appointment by Will, notwith- 
 standing it shall have been expressly required that a Will 
 made in exercise of such power should be executed with 
 some additional or other form of execution or solemnity. 
 
 XI. Provided always, and be it further enacted. That any 
 soldier being in actual military service, or any mariner, or 
 seaman being at sea, may dispose of his personal estate as 
 he might have done before the making of this Act (k). 
 
 XII. And be it further enacted. That this Act shall not 
 prejudice 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 consolidate the Laws relating to the Pay offhelioyal 
 Navy, respecting the Wills of petty officers and seamen in 
 
 (o) See i7ifra, pp. 46, 179, 309. 
 (h) See infra, p. 63. 
 (/(/() See infra, pp. 64, 72. 
 
 (i) See infra, pp. 73, 81. 
 (Jc) See infra, pp. 63, 104 et seq.f 
 332.
 
 THE WILLS ACT. XUl 
 
 the royal navy, and non-commissioned officers of marines, i vict. c. 2G. 
 and marines, so far as relates to their wages, pay, prize 
 money, bounty money, and allowances, or other monies pay- 
 able in respect to services in her Majesty's navy. 
 
 XIII. And be it further enacted, That every Will executed Publication 
 
 not to be 
 
 in manner hereinbefore required shall be valid without any requisite. 
 other publication thereof (0- 
 
 XIV. And be it further enacted. That if any person who Will not to be 
 
 void on cic- 
 
 shall attest the execution of a Will shall at the time of the count of in- 
 execution thereof or at any time afterwards be incompetent !^t™st^*„^'^'^^ 
 to be admitted a witness to prove the execution thereof, such witness. 
 Will shall not on that account be invalid. 
 
 XV. And be it further enacted. That if any person shall Gifts to an 
 attest the execution of any Will to whom or to whose wife witness1;o be- 
 or husband any beneficial devise, legacy, estate, interest, ^°"^' 
 
 gift, or appointment, 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 appoint- 
 ment shall, so far only as concerns 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 null 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 Creditor 
 
 Till nil T-n -I ^ attesting to be 
 
 any real or personal estate shall be charged with any debt admitted a 
 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. 
 
 XVII. And be it further enacted. That no person shall, Executor to 
 
 be admitted a 
 
 on account of his being an executor of a Will, be incom- witness. 
 (/) See infra, pp. 0.3, 78. (m) See ivfra, pp. 898, 8.')9.
 
 XIV 
 
 TUE WILLS ACT. 
 
 1 Vict. c. 26. 
 
 Will to l.c 
 revoked by 
 jjiarriaire. 
 
 Xo "Will to 1)0 
 revoked liy 
 ^■resumption. 
 
 Xo "Will to Ije 
 revoked but 
 liy another 
 \\'i\\ or codicil, 
 or by a writing 
 executed like 
 a Will, or by 
 destruction. 
 
 Xo alteration 
 in a Will sball 
 have any eflect 
 unle-ss exe- 
 cuted as a 
 V\'ill. 
 
 petent to be admitted a witness to prove tlie execution of 
 such Will, or a witness to prove the validity or invalidity 
 thereof («). 
 
 XVIII. And be it further enacted, That every Will made 
 by a man or woman shall be revoked by his or her mar- 
 riage (o) (except a Will made in exercise of a power of 
 appointment, when the real or personal estate thereby ap- 
 pointed 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 by any presumption of an intention on the ground 
 of an alteration in circumstances (jj). 
 
 XX. And be it further enacted. That no Will or codicil or 
 anj' part thereof, shall be revoked otherwise than as afore- 
 said, or by another Will or codicil executed in manner here- 
 inbefore required, or by some writing declaring an intention 
 to revoke the same, and executed in the manner in which a 
 Will is hereinbefore required to be executed, or by the 
 burning, tearing, or otherAvise destroying the same by the 
 testator, or by some person in his presence and by his 
 direction, with the intention of revoking the same(r/). 
 
 XXI. And be it further enacted. That no obliteration, 
 interlineation, or other alteration made in any Will, after 
 the execution thereof, shall be valid or have any effect, 
 except so far as the words or effect of the Will before such 
 alteration shall 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 altera- 
 tion 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 
 
 (n) See infra, p. 284. 
 (o) See infra, p. 160. 
 (2)) See infra, pp. 156, 161. 
 
 (q) See infra, pp. 110, 111, 120, 
 125, 153.
 
 THE WILLS ACT. XV 
 
 end of or opposite to a memorandum referring to such altera- i vict. c. 26. 
 tion, and written at the end or some other part of the Will (7-). 
 
 XXII. And he it further enacted, That no Will or codicil, No Will re- 
 
 voked to be 
 or any part thereof, which shall he in any manner revoked, revived other- 
 shall he revived otherwise than hy the re-execution thereof, i-e-execution 
 or hy a codicil executed in manner hereinhefore required, or a codicil to 
 
 *^ -*■ revive lU 
 
 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 ex- 
 tend 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 (s). 
 
 XXIII. And be it further enacted, That no conveyance A devise not 
 
 to be rendered 
 
 or other Act made or done subsequently to the execution of inoperative by 
 a Will of or relating to any real or personal estate therein q"eXcon"- 
 comprised, except an act by which such Will shall be re- voyance or 
 yoked 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 Will shall ^ ^^i" ^I'all 
 
 be construed 
 
 be construed, with reference to the real estate and personal to speak from 
 estate comprised in it, to speak and take effect as if it had the testator. 
 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 A residuary 
 intention shall appear by the Will, such real estate or -ndude estates 
 interest therein as shall be comprised or intended to be comprised m 
 
 ■'• lapsed and 
 
 comprised in any devise in such Will contained, which shall void devises, 
 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, shall 
 be included in the residuary devise (if any) contained in 
 such Will (r). 
 
 (r) See infra, pp. 110, 111, 123. («) See infra, pp. 175, 1193, 
 
 (s) See infra, pp. 152, 163, 168, 1298. 
 
 172. (u) See infra, p. 1318. 
 (0 See infra, pp. 1192, 1193.
 
 XVI 
 
 THE WILLS ACT. 
 
 1 Vict. c. 26. 
 
 A general 
 devise of tlie 
 testator's lauds 
 shall inchulc 
 copyhold and 
 leasehold as 
 well as free- 
 hold lands. 
 
 A general gift 
 shall include 
 estates over 
 which the tes- 
 tator has a 
 general power 
 of appoint- 
 ment. 
 
 A devise wilh- 
 out any words 
 of limitation 
 shall be con- 
 strued to i)ass 
 the fee. 
 
 XXVI. And be it further enacted, That a devise of tlie 
 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 free- 
 hold estate which could be described by it, shall be construed 
 to include the customary, copyhold, and leasehold estates 
 of the testator, or his customary, copyhold, and leasehold 
 estates, or any of them, to which such description shall 
 extend, as the case may be, as w^ell 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 construed 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 contrary 
 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 construed to include any personal estate, or any per- 
 sonal 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 execu- 
 tion of such power, unless a contrary intention shall appear 
 by the Will (.r). 
 
 XXVIII. And be it further enacted. That where any real 
 estate shall be devised to any person without any Avords of 
 limitation, such devise shall be construed to pass the fee 
 simple, or other the whole estate or interest which the tes- 
 tator had power to dispose of by Will in such real estate, 
 iinless a contrary intention shall appear by the Will. 
 
 (ir) See infra, p. 929. 
 
 (.c) See infra, p. 1321 et seq.
 
 THE WILLS ACT. Xvii 
 
 XXIX. Ami be it further enacted, That in any devise or i vict. c. 2G. 
 bequest of real or personal estate the words "die without The words 
 issue," or "die without leaving issue," or "have no issue," issue'" or "db 
 
 or any other words which may import either a want or failure without leav- 
 ing issue, 
 of issue of any person in his lifetime or at the time of his shall be con- 
 death, or an indefinite failure of his issue, shall be construed [\iq ■without ' 
 
 to mean a want or failure of issue in the lifetime or at the ]f^^% '^yj"S at 
 
 the death [y). 
 
 time of the death of such person, and not an indefinite 
 failure of his issue, unless a contrary intention shall 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 otherwise : Provided, that this Act shall 
 not extend to cases where such words as aforesaid import if 
 no issue described in a preceding 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 No devise to 
 
 trustees or exe- 
 
 estate (other than or not being a presentation to a church) eutors, except 
 
 shall be devised to any trustee or executor, such devise sliall piesentation^ 
 
 be construed to pass the fee simple or other the whole estate *° a church, 
 ^ ^ shall pass a 
 
 or interest which the testator had power to dispose of by chattel in- 
 
 Will in such real estate, unless a definite term of years^ 
 
 absolute or determinable, or an estate of freehold, shall 
 
 thereby be given to him expressly or by implication (z). 
 
 XXXI. And be it further enacted. That where any real Trustees 
 
 under an un- 
 
 estate shall be devised to a trustee, without any express limited devise 
 
 limitation of the estate to be taken by such trustee, and the trust may 
 
 beneficial interest in such real estate, or in the surplus rents ?,"'^yf beyond 
 
 ' ■■• the life of a 
 
 and profits thereof, shall not be given to any person for life, person benefi- 
 
 . ciallv entitled 
 
 or such beneficial interest shall be given to any person for for life, to take 
 life, but the purposes of the trust may continue beyond the 
 life of such person, such devise shall be construed to vest in 
 such trustee the fee simple, or other the whole legal estate 
 
 (y) See infra, p. SGO, note ('/).• (;.) See ivfra, p. G04. 
 
 W.E. VOL. I. h 
 
 the fee.
 
 XVIU THE WILLS ACT. 
 
 1 Vict. c. 26. whieli the testator bad power to dispose of by "Will in sucb 
 real estate, and not an estate determinable when the purposes 
 of the trust shall be satisfied. 
 Devises of XXXII. And be it further enacted, That where any person 
 
 sSfnot"' to whom any real estate shall be devised for an estate tail or 
 lapse. ^j^ estate in quasi entail shall die in the lifetime of the testa- 
 
 tor leaving issue who would be iuhevitable under such entail, 
 and any such issue shall be living at the time of the death of 
 the 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, 
 (xifts to chii- XXXIII. And be it further enacted. That where any per- 
 
 iSetvlio^leavc SOU being a child or other issue of the testator to whom any 
 hsue living at ^.^^i q^. personal estate shall be devised or bequeathed for 
 
 The testator s ^ 
 
 death shall auy cstatc 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 immediately after the death of the tes- 
 tator, unless a contrary intention shall appear by the Will (a). 
 Act not to XXXIV. And be it further enacted, That this Act shall not 
 
 wm" made be- ^xtcud to any "Will made l:)efore the first day of January, one 
 fore 183S(/'), thousand eifi^ht hundred and thirty-eight, and that every "Will 
 
 nor to estates ^ . J o ' J 
 
 j,ur autre v'l" re-cxecuted or republished, or revived by any codicil, shall 
 
 die^before ^^ ' ^^^ the purposes of this Act be deemed to have been made 
 
 •^^■^^- at the time at which the same shall be so re-executed, repub 
 
 lished, or revived ; and that this Act shall not extend to auy 
 
 estate pur autre vie of any person who shall die before the first 
 
 day of January, one thousand eight hundred and thirty-eight. 
 
 Act not to XXX'W And be it further enacted. That this Act shall not 
 
 Satl extend to Scotland. 
 
 Act may be XXXYI. And be it enacted. That this Act may be amended, 
 
 session. ^^^ altered, or repealed by any Act or Acts to be passed in this 
 present session of Parliament. 
 
 («) See iafra, p. 1085. (/<) See infra, pp. G3, 112, lo3, 170, 179.
 
 TABLE OF CONTENTS. 
 
 PAET THE riEST. 
 
 OF THE APPOINTMENT OF EXECUTORS AND 
 ADMINISTRATORS. 
 
 PAET I. BOOK I. 
 
 OF THE ORIGrIN OF WILLS OF PERSONAL ESTATE; AXD OF 
 THEIR NATURE AND INCIDENTS. 
 
 €HAP. I.— Of the Origin of Wills of Personal Estate, p. 1. 
 €HAP. II.— Of the Nature and Incidents of Wills and Codicils 
 of Personal Propcrtj-. p. 4. 
 
 PAET I. BOOK 11. 
 
 OF THE JIAKING, REVOCATION, AND PUBLICATION oF 
 WILLS OF PERSONAL ESTATE. 
 
 €HAP. I. — Who is capable of making a Will of Personalty, 
 p. 9. 
 
 Skct. 1. — Persons incapahlefroia v:ant of Di'ia-eti(m. p. 12. 
 
 Sect. 2. — Persons incapuhlc from vant of Libertij or FreeiciU. 
 
 p. 36. 
 4SKCT. 3. — Persons incaiwhle from their Criminal Conduct. ]>. r>0. 
 
 h 2
 
 XX TABLE OF CONTENTS. [Pt. I. 
 
 CHAP. II.— Of the Form and Manner of Making a Will or 
 
 Codicil, p. 02. 
 
 Skct. 1. — Of the Signature hy the Testator, p. 64. 
 
 SicCT. 2.-0/ the Attestation of Wills and Codicils of Personal 
 
 Estate, p. 73. 
 Sect. 3.— The Form of a Will. p. 93. 
 Skct. 4. — The Lavguage of a Will. p. 97. 
 Skct. o.— Of the Materials u-ith tchieh a Will maij he vritten, anJ 
 
 of the Person who may he the Writer ; and hercvith of a 
 
 Will prepared hy a Legatee, p. 98. 
 Sect. C. — Of Nuncupative Wills and Codicils, p. 103. 
 
 CHAP. III.— Of the Eevocatiou of Wills of Personalty, 
 p. 107. 
 
 Sect. 1. — Ilerocation hy Destruction, Burning, Tearing, Cancellation 
 
 or Ohliteration. p. 111. 
 Sect. 2. — Eevocation by a subsequent Testamentary iJisposition. 
 
 p. 137. 
 Sect. 3. — By express Revocation, p. 1")3. 
 
 Sect. 4. — Pevocation hy the Republication of a prior Will. \\. ir>0. 
 Sect. 5. — Pevocation hy Marriage or other change of Circumstances; 
 
 and thereicith of Presumptive or Implied Ilerocation, 
 
 p. 15G. 
 
 CHAP. lY.— Of the Kepublication of Wills, p. 163. 
 
 Sect. 1. — Hoir a Will may he republished or revived, p. 1G3. 
 Sect. 2. — Of the Conseqiiences of Rcjnddicatioi}. p. 170. 
 
 PAliT I. BOOK III. 
 
 OF THE APPOLN'TMENT OF EXECUTORS, AND THE ACCEPTANCE 
 OR REFUSAL OF THE OFFICE. 
 
 CHAP. I. — Who is capable of being an Executor, p. 183. 
 CHAP. II. — Of the Appointment of Executors : — by what 
 
 words Executors may be appointed, p. 189. 
 CHAP. III. — In what ways the Appointment of Executor 
 
 may be qualified, p. 199.
 
 Bk. III. IV.] TABLE OF CONTEXTS, xxi 
 
 CHAP. IV. — In what cases tlie appointed Executor may 
 
 transmit bis appointment, p. 204. 
 CHAP, v.— Of an Executor de son tort. p. 208. 
 CHAP. VI, — Of the Executor's refusal or acceptance of the 
 
 Office, p. 225. 
 
 Sect. 1. — IVlien and how the Office may he refumd. p. 22d. 
 
 Sect. 2. — The Consequence of Renunciation h'j an Extcutor. p. 23.'3. 
 
 PAET I. BOOK IV. 
 
 OF TROCATE. 
 
 CHAP. I. — Of the necessity of obtainin^i( Probate in the Court 
 of Probate ; and of the Jurisdiction and Authority 
 of that Court : and therewith of the Acts and Lia- 
 bihties of an Executor before Probate, p. 236. 
 
 Sect. 1. — The Will must he proved in flu; Prohate Court, p. 236. 
 Sect. 2. — IVliat the Executor may do before Prohate. p. 249. 
 
 CHAP. 11. — Of the manner of obtaining Probate, and the 
 Practice of the Court of Probate with respect thereto- 
 
 p. 258. 
 
 Sect. 1. — By ivliom the Will should he proved; and hcrcxcith of fJie 
 Production and deposit of Testuiiientary Papers, p. 258. 
 
 Sect. 2. — When the Will is to he proved, p. 264. 
 
 Sect. 3. — Of the Practice of the Court of Prohate ; and hercicith of 
 Proof of Wills in Common Form. p. 266. 
 
 Sect. 4. — Proof of Wills in Solemn Form or per Testes, p. 274. 
 
 Sect. 5. — Evidence in Testamentary Causes, p. 284. 
 
 Sect. 6.— Of the Probate of Wills of Foreigners, tDc, and of British 
 Subjects domiciled out of the Jurisdiction of the Court. 
 p. 296. 
 
 Sect. 7. — Practice of the Cou.rt of Prohate in certain other particulars 
 as to granting Prohate. p. 310. 
 
 Sect. 8. — Of Mandamus to compel Prohate. p. 32."). 
 
 Sect. 9. — OfwJuct Instruments Prohate is necessary, and uhal Instru- 
 ments ought not to he proved, p. 326.
 
 xxii TABl.E OF CONTENTS. [Pt. T. 
 
 CHAP. III.— Of the making and Probate of tlie Wills of 
 Seameu and Marines, p. o;:32. 
 
 PART I. BOOK Y. 
 
 OF THE ORIGIN OF AD:\IINISTRATI0N ; AND OF THE 
 ArPOLXT.MENT OF ADMINISTRATORS. 
 
 CHAP. I. — In what Court Administration must be taken out ; 
 and therewith of Avliat may be done by the Adminis- 
 trator before Letters of Administration are granted, 
 p. 339. 
 
 Skct. 1. — In vJiat Court tJtc Letters of A<hninistrafio)i shall he 
 
 ohtaintd. p. 339. 
 Skct. •!. — IVhat may he done hij an Adminidrutor he/ore Letters of 
 
 Administration are granted, p. 342. 
 
 CHAP. II. — Of the grant of general original Administration 
 in cases of total Intestacy, p. 346. 
 
 Sect. 1. — To irltono general Administration is to he granted. 
 
 p. 346. 
 Sect. 2. — IFIio are ineapuhle nfheing Adnti/eistrators. p. 387. 
 Sect. 3. — Uf tlic Mode of granting Letters of Administration, and 
 
 the Praetive relating thereto, and the Form thereof, 
 
 p. 389. 
 Sect. 4. — ('/ Administration to the Effeets of Intestate Seamen, 
 
 Marines, and. Soldiers : and therewith of l'ersoncdt)j 
 
 fugahlc v-ithout representation obtained, p. 392. 
 
 CHAP. III. — Of Special and Limited Administrations, 
 p. 399. 
 
 Sect. 1. — Of Administrations enm testamcnto annr.ro. p. 399. 
 
 Sect. 2. — Of Administrations dc bonis non. p. 40s. 
 
 Sect. 3. — Of Limited Administrations — Administration durante 
 
 minore cctate. p. 41G. 
 Sect. 4. — Of Administration pendente lite. p. 427. 
 Sect. o. — Of Administration durante cchsentid. p. 433. 
 Sect. G.~Of other temporary and limited Administrations, p. 439. 
 
 CHAP. IV. — Of the Administration Bond. p. -152.
 
 Bk. VI. VII.] TABLE OK CONTENTS. XXili 
 
 PAET I. EOOK YI. 
 
 OF THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRATION 
 AS LONG AS THEY ARE UNREVOKED ; OF THE REVOCATION OF 
 THEM, AND OF THE CONSEQUENCES THEREOF. 
 
 CHAP. I. — Of tlie Effect of Probate and Letters of Adminis- 
 tration, as long as they remain unrepealed, p. 464:. 
 
 CHAP. II. — Of the Revocation of Probate and Letters of 
 Administration, p. 487. 
 
 CHAP. HI.— Of the Effect of Revocation of Probate, or 
 Letters of Administration, on the Mesne Acts of the 
 Executor or Administrator, p. 500. 
 
 PAET I. BOOK YIL 
 
 OF THE STAMP DUTIES ON PROBATES AND ON LETTERS OF 
 ADMINISTRATION, p. 508. 
 
 PAET TIE SECOND. 
 
 OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR. 
 
 PART II. BOOK I. 
 
 OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR ADMINIS- 
 TRATOR VESTS ; AND OF THE QUALITY OF THAT ESTATE. 
 
 CHAP. I.— Of the time when the Estate of an Executor or 
 
 Administrator vests, p. 551. 
 CHAP. II. — Of the Quality of the Estate of an Executor or 
 
 Administrator, p. 558.
 
 Xxiv TABLE OF CONTENTS. [Pt. H. 
 
 PART 11. BOOK II. 
 
 OF THE QUANTITY OF THE ESTATE IX POSSESSION OF AX 
 EXECUTOR OR AD^IINISTRATOR. p. 570. 
 
 CHAP. I.— Of the Interest of the Executor or Aclminisfcrator 
 in the Chattels Real of the Deceased, p. 592. 
 Sect. 1. — TJie Executor's or Administrator's EiijlU to Chattels Real, 
 
 (jcneralhj, p. 592. 
 Sect, 2. — Right of Executors and Administrators to Cluittels Real, 
 
 with Relation to EiLsband and Wife. p. 605. 
 Sect. 3. — Of the Estate of an Executor or Administrator in Cluittels 
 Real by Condition, Remainder or Limitation, p. G14. 
 
 CHAR II. — Of the Estate of an Executor or Administrator 
 in the Chattels Personal of the Deceased in Posses- 
 sion, p. 617. 
 Sect. I. — Of the Estate of an Executor or Administrator in Cliattels 
 
 animate, p. 617. 
 Sect. 2. — Of the Estate of an Executor or Administrator in Cluittels 
 
 vecjetable. p. 620. 
 Sect. 3. — Of the Estate of an Executor or Adminutrator in Cluittels 
 Personal inanimate; and thercicith of Heirlooms, Fixtures 
 and Paraphernalia, d-c. p. 632. 
 
 (1) Heirlooms and things in the natiore thereof. 
 
 pp. 633—640. 
 (2.) Fixtures, p. 640. 
 
 (3.) Parajjhernalia, separate Property, d-c. p. 659. 
 Sect. 4. — Of Donations mortis causa, p. 681. 
 
 PART IL BOOK III. 
 
 OF THE QUANTITY OF THE ESTATE IX ACTIOX OF AX EXECUTOR 
 OR .VDMIXISTRATOR. p. 693. 
 
 CHAP. I. — To what choses in Action the Executor or Ad- 
 ministrator is entitled, which the Deceased might 
 have put in Suit. p. 695.
 
 Bk. III. IV.] TABLE OF CONTENTS. XXV 
 
 Sect. 1. — The general Qnedion as to wliat Actions survive to the 
 
 Executor or Administrator, p. 695. 
 Sect. 2. — Particular instances where the Executor or Administrator 
 
 is entitled to Chases in Action which the deceased miyht 
 
 have jyut in suit, and where not. p. 718. 
 Sect. .3. — The Right of an Executor or Administrator to Glioses in 
 
 Action, as it respects Hashand and Wife. p. 736'. 
 
 CHAP. II. — To what clioses in Action tlie Executor or 
 Administrator is entitled, where the Action accrues 
 after the Death of the Testator or Intestate, p. 760. 
 
 CHAP. III. — Of the Title of an Executor or Administrator 
 to the executory and contingent Interests of the 
 Testator or Intestate, p. 771. 
 
 CHAP. IV. — Of the continuance by the Executor or Admi- 
 nistrator of Actions commenced by the Testator or 
 Intestate, p. 774. 
 
 PAET II. EOOK ly. 
 
 OF THE ESTATE OF SEVERAL EXECUTORS OR ADMINISTRATORS , OF 
 THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, AND OF AN 
 ADMINISTRATOR DE BONIS NON ; AND OF THE ESTATE OF AN 
 EXECUTRIX OR ADMINISTRATRIX WHO IS A FEME COVERT. 
 
 CHAP. I. — The Estate of an Executor or Administrator 
 considered, when there are several Executors or 
 Administrators, p. 785. 
 
 CHAP. II.— Of the Estate of an Executor of an Executor, 
 or of an Administrator clc bonis non ; and of the 
 Estate of a Feme Covert Executrix or Adminis- 
 tratrix, p. 788.
 
 XXvi TABLE OF CONTENTS. [Pt. III. 
 
 PART THE THIRD. 
 
 OF THE TOWERS AND DUTIES OF AN EXECUTOR OR 
 ADMINISTRATOR. 
 
 PAET III. BOOK I. 
 
 OF THE POWER AND AUTHORITY OF AN EXECUTOR OR 
 ADMINISTRATOR. 
 
 CHAP. I. — Of the Power and Authority of an Executor or 
 Administrator generally, p. 795. 
 
 CHAP. n. — Of the Power and Authority of one of several 
 Executors or Administrators, p. 816. 
 
 CHAP, in.— Of the Power and Authority of an Executor of 
 an Executor : of an Administrator de bonis non ; 
 and of a Limited Administrator, p. 829. 
 
 CHAP. lY.— Of the Power of a Feme Covert Executrix or 
 Administratrix, p. 833. 
 
 PAET III. BOOK II. 
 
 OF THE DUTIES OF AN EXECUTOR OR ADMINISTRATOR WITH RE- 
 SPECT TO THE FUNERAL; THE PROVING OF THE WILL, AND 
 THE TAKING OUT ADMINISTRATION ; THE INVENTORY ; AND 
 THE PAYMENT OF DEBTS. 
 
 CHAP. I.— Of the Funeral : of Pro^-ing the Will, and of 
 taking out Administration ; and of the Inventory. 
 p. 835. 
 
 Sect. 1. — Of the Funeral, p. 8.35. 
 
 Sect. 2. — Of imj-dnrj the Will and talcing out Administration. 
 p. 840. 
 
 Sect. 3. — Of the iiiaking an Inventory hj the Executor or Adminis- 
 trator, p. 840. 
 
 Sect. 4.—0f collectinej the Effects, p. 84!).
 
 Bk. ir. III.] TABLE OF CONTENTS. XXvii 
 
 CHAP. II.— Of the Payment of Debts by the Executor or 
 Administrator, according to their priority of Degree, 
 p. 850. 
 
 Sect. 1. — Of the Payment of the E.qicnscs of the Fuveral, and of the 
 Probate or Adminidration. 2. Of Debts due to the Croirn. 
 3. Of Debts to vhich jiarticulur Statutes give Priority of 
 Payment, p. 850. 
 
 Sect. 'i.— Of the Payment of Debt.i of liecord. — 1. Judgments. 2. 
 Decrees. 3. Statutes and Recognizances, p. 859. 
 
 Sect. 3. — Of Debts by Specialty, and by Simjile Contract, p. 8(5!). 
 
 Sect. 4. — Of the Payment of an inferior Debt hy an Executor or 
 Administrator before a sui')erior, v:itho%it notice; and of 
 suffering Judgment on an inferior Debt, without 'notice of 
 a swperior. p. 879. 
 
 Sect. 5. — (Jf the Poicer of Preference by an Executor or Administra- 
 tor among Creditors of ec[ual Degree, p. 881. 
 
 Sect. 6. — Of the Eight of the Executor or Administrator to retain a 
 Debt due to hitn from the Testator or Intestate, p. 884. 
 
 PART III. BOOK III. 
 
 OP THE DUTIES OF AN EXECUTOR WITH EESPECT TO LEGACIES. 
 CHAP. I. — AVho is capable of being a Legatee ; and here- 
 with of Bequests to Charitable Uses. p. 897. 
 
 Sect. 1. — IFho is ca'pablc of being a Legatee, p. 897. 
 
 Sect. 2. — Of Bequests to Superstitions and Charitable Uses. p. 901. 
 
 CHAP. II.— Of the Construction of Wills of Personalty, 
 p. 928. 
 
 Sect. 1. — Of the general Rules of Construction, p. 928. 
 Sect. 2.— Modes of Description of a Legatee, p. 940. 
 Sect. 3. — Of Sjiecifie Legacies, p. 10 19. 
 Sect. 4.— Of the Description of Legacies, p. 1040. 
 Sect. 5. — Of Legacies vested or contincjent. p. 1071. 
 
 (1) Legatee dying before Testator, p. 1072. 
 
 (2) Legatee dying after Testator, p. l(i8G. 
 
 (3) Of the Lapse of Legacies p'uyahle out of 
 
 the Real Estate, p. 1 1 17. 
 
 (4) Of the Lapse of Legacies charged on a 
 
 Mixed Fund of Realty and Personalty. 
 p. 1121.
 
 XXviii TABLE OF CONTENTS. [Pt. III. 
 
 Sect. G. — Of Legacies on conditions, p. 1122. 
 
 Skct. 7. — Of cumulative legacies, p. 115.5. 
 
 Sect. S.— 0/ the Hatisfadion of Belts and Portions hj Legacies. 
 
 ]). 1162. 
 Sect. 9. — Of the Eclease of Debts hj Legacies; and herewith of the 
 
 Effect of apiiointing a Debtor or a Creditor to be Execxitor. 
 
 p. 1 1 70. 
 
 CHAP. III.— Of the Ademption of Legacies, p. 1183. 
 Sect. 1.— Of the Ademption of S2)ecific Legacies, p. 118.3. 
 Sect. 2.— Of the Ademption of Legacies given as Portions, -p. 1194. 
 
 CHAP. lY.— Of the Payment of Legacies, p. 1202. 
 
 Sect. 1. — All Debts mvst be paid before ang Legacies are satisfied. 
 
 p. 1202. 
 Sect. 2. — Of the Abatement of Legacies, p. 1211. 
 Sect. 3. — Of Executofs Assent to a Legacy, p. 1225. 
 Sect. 4. — At vhat time Legacies are to be paid ; and herevith of 
 
 bequests for life, vAth remainder over. p. 1239. 
 Sect. 5. — To v:hom Legacies are to he paid; and hereieith of Legacies 
 
 to Infants and Married Women, p. 1261. 
 Sect. G. — Of Literest v/pon Legacies, p. 1285. 
 Sect. 7. — In v:hctt Currency Legacies are to be paid., p. 1296. 
 Sect. 8. — Of the Payment or Delivery of Sjiecific Legacies, p. 1298. 
 Sect. 9. —Of Election, p. 1304. 
 Sect. 10.— Of the Ilefunding of Legacies, p. 1312. 
 
 CHAP. Y.— Of Payment of the Ptesidue. p. 1316. 
 
 Sect. 1. — Of the Hesiduary Legatee, p. 1316. 
 
 Sect. 2, — Of the Right of the Executor to the Residue, in case there is 
 no Rr-siduary Legatee, -p. 1342. 
 
 TAET III. BOOK IT. 
 
 OF DISTRIBUTIOX. 
 
 CHAP. I.— Of Distribution under the Statute, p. 1352. 
 
 Sect. 1. — Of the Rights of a Husband and his Representatives v:it 
 respect to the Personal Property of his Intestate Wife, 
 p. 1357.
 
 Bk. IV. v.] TABLE OP CONTENTS. xxix 
 
 SfX'T. 2. — Of the Rvjlits of a Widow, in the Distribution of the 
 Effects of her Intestate Husband under the Statute. 
 
 p. I3r)9. 
 
 Skct. 3. — Of the Eights of the Children, and their Ilepresentatives, to 
 Distribution under the Statute, p. 1366. 
 
 Sect. 4. — The Eights of the Next of Kin of the Intestate under the 
 Statute of Distributions, p. 1377. 
 
 Sect. 5. — Of Distribution, rchcn the Intestate was dornicikd abroad. 
 p. 1387. 
 
 Sect. 6. — Of the Payment of the Eesidue. p. 1401. 
 
 CHAP. II. — Of Distribution under the Customs of London 
 and York, &c. p. 1403. 
 
 PAET III. EOOK y. 
 
 OF THE ST.VMP DUTIES ON LEGACIES AND SUCCESSIONS TO 
 PERSONAL ESTATES, p. 1405. 
 
 CHAP. I. — As to the Amount of Duties Payable on Legacies 
 and Successions, p. 1478. 
 
 CHAP. II. — Upon what Subjects the Duties are Payable, 
 p. 1480. 
 
 CHAP. III.— By whom the Duties are Payable, p. 1505. 
 
 PART THE FOTJETH. 
 
 OF THE LIABILITIES OF AN EXECUTOR OR 
 ADMINISTRATOR. 
 
 PAET IV. BOOK I. 
 
 OF ASSETS, p. 1517. 
 
 CHAP. I.— Of Personal Assets, Legal or Equitable, p. 1518.
 
 XXX TABLE OF CONTENTS. [Ft. V. 
 
 CHAP. II. — Of Keal Assets : and of the Exoneration of the 
 Keal Estate by the Personal : and here^Yith of the 
 Marshalling of Assets, p. 1553. 
 
 Skct. 1. — Of the Exoneration of the Heal Estate h'j the Personal. 
 
 p. 1553. 
 Sect. 2. — Of Marshalling the Assets in favour of Creditors and 
 
 Legatees, p. 1585. 
 
 PAET lY. BOOK II. 
 
 OF THE LIABILITY OF AN EXECUTOR OR ADMINISTRATOR IN RE- 
 SPECT OF THE ACTS OF THE DECEASED ; AND OF THE LIA- 
 BILITY OF AN EXECUTOR OR AD:MINISTRAT0R IN RESPECT OF 
 HIS OWN ACTS. 
 
 CHAP. I. — Of the Liability of the Executor or Administrator 
 in respect of the Acts of the Deceased, p. 1593. 
 
 >Sect. ] . — The general Question as to v:liat Claims upon the Deceased 
 survive against the Executor or Administrator, p. 1593. 
 
 Sect. 2. — Of particular Instances where the Executor or Adminis- 
 trator is liable with respect to the Acts of the Deceased. 
 p. 1614. 
 
 CHAP. II. — Of the Liability of Executor or Administrator 
 with respect to his own Acts. p. 1661. 
 
 Sect. 1. — Of the Liability of an Executor or Administrator on his 
 
 own Contracts, p, 1661. 
 •Sect. 2. — Of the Liahility of an Executor or Administrator in respect 
 
 of his ou:n tortious or negligent Acts; and herewith of 
 
 Devastavit, and of Executors^ Accounts and Allowances. 
 
 p. 1690.
 
 Bk. I. II.] TABLE OF CONTENTS. XXxi 
 
 PART THE FIFTH. 
 
 OF REMEDIES. 
 
 PAET V. BOOK I. 
 
 OF REMEDIES FOR EXECUTORS AND ADMINISTRATORS. 
 
 CHAP. I. — Of Remedies for Executors and Administrators 
 at Law. p. 1773. 
 
 CHAP. II. — Of Remedies for Executors and Administrators 
 in Equity, p. 1799. 
 
 PAET Y. BOOK II, 
 
 OF REMEDIES AGAINST EXECUTORS AND ADMINISTRATORS, p. 1827. 
 
 CHAP. I. — Of Remedies against Executors and Administra- 
 tors at Law. p. 1828. 
 
 CHAP. II. — Of Remedies against Executors and Adminis- 
 trators in Equity, p. 1876. 
 
 CHAP. III. — Of Remedies against Executors and Adminis- 
 trators in the Probate Division of the High Court 
 of Justice, p. 1950. 
 
 CHAP. IV.— Of Equitable Remedies against Executors and 
 Administrators in the County Court, p. 1954.
 
 TABLE OF COMPARATIVE REFERENCE 
 
 FOPw THE 
 
 OLD REPORTS and the REVISED REPORTS. 
 
 OLD REPORTS. 
 
 CASES FROM 
 
 Anstruther (Ex.), vol. i & 2 
 
 — ■ „ vol. 3 . 
 
 REVISED REPORTS, 
 
 CITED AS R. R. 
 
 vide R. R. vol 
 
 Ball & Beatty (CLy.) vol. i & 2 
 Blackstone, H. (C. P.), vol. 1 . 
 
 „ vol. 2 . 
 
 Bosanquet & Puller (C. P.), vol. i- 
 
 „ vol. 2 
 
 „ vol. 3 to 23. 309 ,', 
 
 „ vol. 3, p. 320 I 
 
 to end . J" 
 
 (N.E.) (C.P.), vol. 1 „ 
 
 — ■■ „ vol. 2 „ 
 
 Campbell (N. P.), vol. 1 .... . 
 
 „ vol. 2 to p. 599 . . 
 
 ,, vol. 2, p. 600 to end „ 
 
 Cox (Chy.), vol. 1 . „ 
 
 „ vol. 2 
 
 Durnford & East (T. R.) (K.B.), vol. 1-3 „ 
 
 „ vol. 4 & 5 „ 
 
 vol. 6 
 
 vol. 7 & 8 
 
 to p. 403 
 
 vol. 8, p 
 
 434 to end 
 
 East (K. B.), vol. 1 to p. 110 . 
 vol. 1, p. 139 to end 
 vol. 2 .... 
 vol. 3 to p. 221 . 
 vol. 3, p. 222 to end 
 vol. 4 & 5 . . . 
 vol. 6 & 7 . . . 
 vol. 8 & 9 . . . 
 
 5» 
 
 i J " 
 
 3 
 4 
 12 
 2 
 3 
 4 
 5 
 
 6 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 1 
 
 2 
 
 1 
 
 2 
 
 3 
 
 5 
 6 
 6 
 6 
 7 
 7 
 8 
 9
 
 OLD REPORTS. 
 
 CASES FROM 
 
 REVISED REPORTS, 
 
 CITED 'AS R. R. 
 
 East (K. B.), vol. 10 & 11 to p. 435 . vide R. R. vol. 
 
 ^^ ' vol. 11, p. 436 to end & vol. 12 „ 
 
 '/, vol. 13 & 14 to p. 440 . 
 
 Espinasse (N. P.), vol. i & 2 . . . 
 
 — „ vol. 3 & 4 ... ,, • „ 
 
 ,, vol. 5 „ .» 
 
 ,. vol. 6 „ V 
 
 Forrest (Ex.) . . 
 Peake(N.P.), vol. i 
 
 .. vol. 2 
 
 Schoales & Lefroy, vol. i & 2 . . . 
 Smith (K. B.), vol. 1 & 2 to p. 12 . . 
 
 „ vol. 2, p. 202 to end \ 
 
 of vol. 3 . . . j 
 
 Taunton (C. P.), vol. i to p. 400 . 
 
 „ vol. l,p. 401 to end 
 
 „ vol. 2 . . . . 
 
 ., vol. 3 . . . . 
 
 Vesey Jr. (Chy.),vol. itop. 226 . 
 
 „ vol. 1, p. 227 to end 
 
 „ vol. 2 to p. 518 . 
 
 „ vol. 2, p. 524 to end 
 
 „ vol. 3 to p. 299 . 
 
 „ vol. 3, p. 306 to end 
 
 „ vol. 4 . . . . 
 
 „ vol. 5 & 6 to p. 576 
 
 „ vol. 6, p. 617 to end 
 
 „ vol. 7 & 8 to p. 78 
 
 ,, vol. 8, p. 92 to end , 
 
 „ vol. 9 & 10 to p. 319 
 
 „ vol. 10, p. 381 to) 
 
 end of vol. 12 j 
 
 „ vol. 13 & 14 . 
 
 „ vol. 15 & 16 . 
 
 „ vol. 17 & 18 . 
 
 „ vol. 19 to p. 233 
 
 Vesey & Beames (Cliy.) vol. i 
 Wightwick (Ex.) 
 
 10 
 11 
 12 
 5 
 G 
 8 
 9 
 5 
 
 3 
 
 / 
 
 9 
 7 
 
 8 
 
 9 
 10 
 11 
 12 
 1 
 2 
 2 
 3 
 3 
 4 
 4 
 5 
 6 
 6 
 7 
 7 
 
 8 
 
 9 
 10 
 11 
 12 
 12 
 
 12
 
 INDEX OF CASES. 
 
 Aaron v. Aaron, 166 
 Abadam v. Abadam, 150S 
 Abbisf. Winter, 861, 8S0 
 Abbot V. Massie, 101:3, 1015, 1117 
 Abbott V. Abbott, 460, 1346 
 
 — V. Middleton, 928, 935 
 
 — V. Parfitt, 765, 1521, 1685, 1779, 
 
 1817 
 Ahhjv. Gilford, 1882 
 Abdul Messih r. Farra, 305, 1398 
 Abney v. Miller, 1192 
 Abram iJ. Cunningham, 501, 1176 
 Abrey v. Newman, 1329, 1386 
 Acastor v. Anderson, 841, 843 
 Acey V. Simpson, 1218 
 Acherley ■?;. Vernon, 164, 1070, 1291 
 Ackerley v. Oldham, 375 
 
 — V. Parkinson, 375 
 Ackers v. Ackers, 1949 
 Ackland v. Lutley, 604, f 05 
 
 — V. Pring, 601, 604, 1636 
 Ackroyd v. Smithson, 585 
 Ackworth v. Ackworth, 1167 
 Acton V. Acton, 1031, 1224 
 
 Adair v. Shaw, 431, 1613, 1742, 1743, 
 
 1876 
 Adam's Trusts, Ec, 1127 
 Adam v. Buckland, 411 
 
 — V. The Inhabitants of Bristol, 702, 
 
 1791 
 Adames' Trusts, F.e, 662 
 Adams, In the goods of, 99 
 
 — He, 1267 
 
 — and Kensington Vestiy, Ee, 98, 
 
 595 
 
 — V. Adams, 949, 1076 
 
 — V. Barry, 1914, 1924 
 
 — V. Beck, 949 
 
 — V. Bush, 950 
 
 ■ — V. Cheverel, 761 
 
 — V. Claxton, 1721 
 
 — V. Cole, 753 
 
 — V. Gale, 1752 
 
 W.E. — VOL. I. 
 
 Adams v. Gibney, 1632 
 
 — V. Jones, 1011 
 
 — r. Lavender, 751, 1164 
 
 — V. Meyrick, 1581 
 
 — V. Robarts, 949, 1096, 1108 
 Adamson, In the goods of, 113, 190 
 
 — V. Armitage, 1058 
 Addams v. Ferick, 1204, 1649 
 Addison v. Busk, 1093 
 Addy V. Grix, 82 
 Adnamt;. Cole, 919, 920, 1158 
 Advocate General v. Ramsay's Trustees, 
 
 1489 
 — V. Smith, 1488 
 
 Adye i;. Feuilleteau, 1707, 1749 
 Aikman v. Aikman, 1394 
 Ainsiie, Ee, 620, 622 
 Ainsworth, In the goods of, 68 
 Aird, In the goods of, 195 
 Aird's Estate, Ee, 939, 1069, 1171 
 Airey v. Bower, 176 
 Aislabie v. Eice, 1123, 1144 
 Aitchison v. Dixon, 745, 1393 
 Aitkin v. Ford, 380, 381, 460 
 Alton V. Brooks, 1136 
 Akerman, Ee, 1172 
 
 — V. Gybbon, 845 
 Akers v. Dupuy, 410 
 
 Alcock V. Sloper, 1038, 1039, 1252 
 Alder v. Lawless, 1327 
 Aldrich v. Cooper, 678, 1585, 1586, 1587, 
 
 1588 
 Aldridge v. Wallscourt, 1579 
 Alexander, In the goods of, 308 
 
 — V. Alexander, 1162 
 
 — V. Brame, 908 
 
 — V. Lady Gresham, 1522 
 
 — V. Lane, 220 
 
 — V. Mullins, 1877 
 
 — V. Sizer, 1671 
 Alford, Ee, 1272 
 
 — V. Alford, 173, 354 
 
 — V. Earle, 173 
 
 — V. Green, 1067 
 Alger V. Parrott, 992, 993
 
 XXXIV 
 
 INDEX OF CASES. 
 
 Alice Francis's case, 202 
 
 All Souls' College v. Coadriugton, 1299 
 
 Allan !•. Gott, loSS, 1584 
 
 Allardicp r. Onslow, 139S 
 
 AlKlav r. Fletcher, 1283 
 
 Allen, In the i^oods of, 79, 382 
 
 — j;c, 1270, 1271 
 
 — r. Allen, 462 
 
 — r. Anderson, 696, 1308 
 
 — r. Bradshaw, 50, 51 
 
 — r. Callow, 1158 
 
 — r. Coster, 1273 
 
 — r. Dmidas, 464, 466, 467, 478, 504, 
 
 171'5 
 
 — v. Hopkins, 502 
 
 — V. Humphreys, 349 
 
 — r. Jackson, 1141 
 
 — V. Jarvis, 1942 
 
 — r. McPherson, 38, 42, 293, 315, 
 
 468, 472, 473 
 
 — r. Maddock, 90, 180 
 
 — r. Story, 1803 
 
 -- V. Thorp, 988, 994, 998 
 
 — r. AVebster, 956, 957 
 .Vllevn r. Allevn, 1164 
 Ailhuseu v. AVhittell, 1247 
 Allnutt, In the goods of, 87 
 Allsop, He, 1272 
 
 AUuiu V. Fryer, 576 
 Almack r. Horn, 942 
 Almes r. Almes, 375, 413 
 Almosnino, In the goods of, 87, 190 
 Alsagerr. Rowley. 1916, 1917 
 Alston, In the goods of, 1073, Add. 
 
 — V. TroUope. 1700 
 Alton V. Medlicott, 1022 
 
 — V. Midland Railway Co., 709 
 Ambrose v. Kerrison, 1679 
 Ames, Re, 1762, 1942 
 
 — V. Cadogan, 1324 
 
 — r. Parkinson, 1717 
 Amies v. Skillern, 1328 
 Amis V. Witt, 688 
 
 Amiss. In the goods of, 65, 82 
 Amphlett r. Parke, 586, 1243 
 Amsinck v. Barkla)', 1932 
 Ancaster r. Mayer, 1568, 1569, 1576 
 Ancona t'. "Waddell, 1131 
 Anderson, In the goods of, 354 
 
 — r. Anderson, 899 
 
 — r. Caunter, 1915 
 - — V. Dawson, 991 
 
 — r. Guichard, 432 
 
 — V. Laneuville, 1392 
 
 — V. Martindale, 1774 
 
 — V. Welch, 290 
 Anderton v. Cooke, 1581 
 Andree v. Ward, 1319 
 
 ndrew's Will, iJc, 973 
 Andrew Ognel's case, 46, 732 
 
 — V. Andrew, 1084, 1094, 1113, 
 
 1253 
 
 — V. Clark, 1346 
 
 Andrew v. Wrigley, 806 
 Andrews v. Emmot, 1578 
 
 — V. Murphy, 379 
 
 — V. Partington, 944, 1272 
 
 — r. Turner, 170 
 Andres, He, 959 
 Androvin v. Poilblane, 190 
 Angell r. Dawson, 1709 
 Angermann v. Ford, 1151 
 Angerstein v. Martin, 1240, 1243, 1246 
 Ankerstein v. Clarke, 971 
 
 Ann (The), ca.se of, 1392 
 Ansley v. Cotton, 1506 
 Anstier, He, 1892 
 Anstrnther v. Chalmer, 376 
 Anthony, Me, 1575 
 
 — r. Rees, 574 
 Aplynt;. Brewer, 1729 
 Applebee, In the goods of, 130 
 
 — Re, 1177, 1180 
 Appleby V, Appleby, 419 
 Ai.pleton, Re, 1147, 1149, 1151] 
 
 — V. Doily, 799 
 
 — V. Rowley, 992, 1329 
 Apreece r. Apreece, 1022, 1220, 1286 
 Arberv v. Ashe, 31 
 
 Arbuckle, Re, 1271 
 Archer, In the goods of, 70 
 
 — V. Hudson, 44 
 ■ — V. Jegon, 1331 
 
 Arden r. Sullivan, 1642 
 Armitage v. Metcalfe, 1562, 1696 
 
 — V. Williams, 944, 1385 
 Armstrong r. Annstrong, 759, 947, 977, 
 
 "1326, 1328, 1341 
 
 — V. Burnet, 1647, 1649 
 
 — V. Clavering, 1008 
 Armvtage v. Wilkinson, 1122 
 Arnold's Estate, Re, 1122 
 
 — Trusts, Re, 937 
 
 Arnold r. Arnold, 220, 1042, 1043, 1047, 
 1214, 1296, 1499 
 
 — V. Blencowe, 206, 409 
 
 — V. Chapman, 907, 913, 923 
 
 — V. Preston, 954 
 Arrow v. Mellish, 1386 
 Arrowsmith's Trusts, Re, 1090, 1091 
 Arthur, In the goods of, 71 
 
 — r. Hughes, 1914 
 
 — r. Mackinnon, 1303 
 Amndell r. Arundell, 1260 
 Ash V. Ash, 983 
 
 Ashbee v. Pidduck, 1617 
 Ashburuer v. M'Guire, 1023, 1030, 1183 
 1185, 1187, 1189 
 Ashbumham v. Ashburnham, 1223 
 
 — r. Bradshaw, 149 
 
 — r. Thompson, 1750, 1751 
 Ashby V. Ashby, 744, 1544. 1582, 1662, 
 
 1663, 1664, 1833 
 
 — V. Costin, 1552 
 
 — r. James, 1838 
 Ashley, In the goods of, 883
 
 INDEX OF CASES. 
 
 XXXV 
 
 Ashley, Ex parte, 857 
 
 — V. Childers, 1182 
 
 — V. Pocock, 861. 
 
 — r. Waugli, 165 
 Ashling V. Knowles, 1078 
 Ashmore, In the goods of, 77, 82 
 Ashmore's Trusts, Re, 1098, 1101, 1102 
 Ashtou, In the goods of, 78, Add. 
 
 — V. Ashton, 1020, 1024, 1025, 1026 
 
 — V. Dawson, 687 
 
 — V. Langdale (Lord), 90S 
 
 — V. Sherman, 1678, 1679 
 Ashurst V. Eyre, 1S78 
 Ashwell's Will, He, 1926 
 Ashwell V. Lomi, 44 
 Ashworth v. Munn, 907, 908 
 Askew V. Askew, 459, 1334 
 
 — V. Woodhead, 1251 
 Aspinall r. Wake, 763, 764 
 Aspinwall v. The Queen's Proctor. 367 
 Aspland v. Watte, 1922 
 
 Astbury, Ex parte, 642 
 Astley V. Essex (Earl of), 1133 
 Astoii, In the goods of, 1054, 131S 
 Astor, In the goods of, 87, 300 
 Atcherley r. Du Moulin, 1109 
 
 — V. Yernon, 581 
 Atcheson v. Ateheson, 947, 1327 
 Atherton, lu the goods of. Add. 
 
 — V. Crowther, 996 
 Atkins, Re, 778 
 
 — V. Gardner, 733 
 
 — V. Hiccocks, 1092 
 
 — V. Hill, 1673 
 
 — V. Humphrey, 1637, 1665 
 
 — V. Smith, 301, 365 
 
 — r. Tredgold, 1841 
 Atkinson, In the goods of, 82 
 
 — V. Anderson, 1454 
 
 — V. Barnard, 354, 401 
 
 — V. Bradford, <fcc., Building Soc, 
 
 1787 
 
 — V. Henshaw, 432 
 
 — V. Hutchinson, 940 
 
 — V. Littlewood, 1163, 1166 
 
 — i\ Turner, 1095 
 
 — V. Webb, 1164 
 Atter V. Atkinson, 288, 316 
 Att.-Gen. v. Abdy, 1448 
 
 — V. Aberdare, 1446, 1477, 1477a, 
 
 1477b 
 
 — V. Ailesbury, 549, 590 
 
 — 0. Alford, 1751, 1755, 1756, 
 
 1758 
 
 — r. Bacchus. 1478 
 
 — V. Baker, 1448, 1455 
 
 — V. Barkham, 1582 
 
 — V. Baxter, 903 
 
 — V. Beatson, 1498 
 
 — V. Blucher de Wahlstatt. 1395, 
 
 1502 
 
 — V. Boultbee, 924 
 
 — r. Bouwens, 296, 366, 545 
 
 Att.-Gen. v. Bowles, 913 
 
 — V. Bowyer, 921 
 
 — V. Brackenbury, 1421, 1484 
 
 — V. Braybrooke, 1455 
 
 — r. Bright, 973 
 
 — V. Brunning, 540, 547, 549, 
 
 579, 1548, 1549 
 
 — V. Burnie, 1478 
 
 — V. Bury, 1299 
 
 — V. Campbell, 1446, 1502, 1503, 
 
 1504 
 
 — r. Cavendish, 1479 
 
 — V. Cecil, 1447, 1455, 1456 
 
 — V. Chapman, 1894 
 
 — V. Chester, Bishop of, 913 919 
 
 — V. Clarke, 917, 1009 
 
 — V. Cleave, 1455 
 
 — v. Cockerell, 296, 1498 
 
 — V. Comber, 918 
 
 — V. Cornthwaite, 1877 
 
 — V. Crispin, 943, 1105 
 
 — r. Dardier, 1410. 1423 
 
 — i;. Davies, 912, 913, 922 
 
 — V. Day, 1644 
 
 — V. Dillon, 1350 
 
 — V. Dimond, 300, 542, 1524 
 
 — V. Dowling, 1448 
 
 — r. Downing, 164 
 
 — V. Dunn, 1393, 1394, 1500 
 
 — V. Eastlake, 918 
 
 — V. Fishmongers' Co., 901, 903 
 
 — V. Fitzgerald. 1392, 1416, 1494 
 
 — r. Fitzjohn, 1459 
 
 — V. Fletcher, 1328 
 
 — V. Floysr, 1447, 1448 
 
 — V. Forbes, 1499 
 
 — V. Fowler, 903, 918 
 
 — V. Gardner, 1447, 1455, 1456 
 
 — V. Gell, 1447 
 
 — V. George, 1157, 1159 
 
 — V. Giles, 1412, 1417 
 r. Gladstone, 924 
 
 — V. Goddard, 915 
 
 — V. Goulding, 922 
 
 — V. Graves, 908 
 
 — V. Grote, 1029 
 
 — V. Haberdashers' Co., 921 
 
 — V. Hallett, 1461 
 
 — V. Hancock, 1478, 1491 
 
 — V. Harley, 907, 1065, 1158 
 
 — V. Heelis, 918 
 
 — V. Henniker, 1485 
 
 — V. Hertford, Lord, 1440, 1486 
 
 — V. Hickman, 903 
 
 — V. Higgins, 545 
 
 — V. Higham, 1703, 1717, 1894 
 
 — V. Hinxman, 922 
 
 — V. Hodgson, 913, 915 
 
 — V. Holbrook, 1073, 1479, 1492 
 
 — V. Holford, 1489 
 
 — r. Hooker, 1342 
 
 — V. Hope, 644, 545 
 
 — V. Hubbuck, 547, 549 
 
 c 2
 
 XXXVl 
 
 INDEX OF CASES. 
 
 Att.-Gen. ?•. ITudsou. 1-220 
 
 — V. Hull, 912 
 
 — r. Hyde, 913, 017 
 
 — V. Ironmongers' Co., 924 
 
 — V. Jackson, 1411, 1489, 1499, 
 
 1500, 1505 
 
 — r. Johnstone, 1325 
 
 — V. Jones, 8, 908, 1480, 1489 
 
 — r. Kent, 1392 
 
 — r. Kohler, 376, 377, 1387, 1751, 
 
 1755, 1810 
 
 — V. Lawes, 903, 918, 924, 1947 
 
 — V. Littledale, 1447, 1456, 1457, 
 
 1459 
 
 — V. Lloyd, 148 
 
 — V. Lomas, 548 
 
 — i". Loseonibe, 1478 
 
 — V. Malkin, 994, 998, 1003 
 
 — V. Mangles, 1488, 14S9 
 
 — V. Manners, 1478 
 
 — V. Metcalfe, 1488 
 
 — r. Mill, 921 
 
 — V. Mitchell,1421, 1448.1449,1459 
 
 — V. Monteiiore, 1446, 1458 
 
 — V. Mimby, 913, 921, 1417 
 
 — V. Napier, 1397, 1502 
 
 — V. Nash, 917, 1494 
 
 — V. Northumberland, 913 
 
 — V. Noyes, 1456, 14(36 
 
 — V. Parnther, 17, 18, 22 
 
 — V. Partington, 351, 465, 540, 
 
 755, 756, 758 
 
 — r. Pearce, 918 
 
 — v. Pearson, 903 
 
 — V. Pickard, 1440, 1484, 1485 
 
 — V. Potter, 1236 
 
 — V. Pratt, 542, 545 
 
 — V. Price, 918, 980 
 
 — V. Randell, 1731 
 
 — V. Robertson, 1447 
 
 — V. Robins, 1220, 1222 
 
 — V. Rowe, 1392 
 
 — V. Rushton, 1456 
 
 — V. Sefton, Lord, 1460 
 
 — V. Shore, 903 
 
 — V. Shrewsbury, Corporation of, 
 
 918 
 
 — V. Sibthorp, 1447, 1455, 1463 
 
 — V. Sibthorpe, 1011 
 
 — V. Simcox, 1488 
 
 — V. Smith, Add. 
 
 — r. Smythe, 1447 
 
 — V. Southgate, 1583 
 
 — V. Staff, 550 
 
 — T. Stepney, 922 
 
 — V. Stewart, 921 
 
 — V. Tancred, 921 
 
 — T. Tomkins, 908, 1347 
 
 — V. Upton, 1450 
 
 — V. Virginia College, 918 
 
 — r. Wahlstatt (Blucher de), 1395, 
 
 1502 
 
 — T. Wansay, 903 
 
 Att.-Gen. v. Ward, 150 
 
 — V. Weymouth, 907 
 
 — V. Whitchurch, 922 
 
 — V. Whorwood, 921 
 
 — V. Williams, 912 
 
 — V. Wilson, 903 
 
 — V. Wood, 1478 
 
 — V. Wyndham, 1487 
 
 — V. Wynford, 1413 
 
 — V. Yelyerton, 1447, 1448 
 Attree v. Attree, 929 
 
 — V. Hawe, 907, 908, 910 
 Attridge, In the goods of, 92 
 Attwateri?. Attwater, 1027, 1130 
 Attwood V. Alford, 1060 
 Aubin V. Daly, 719 
 
 Audsley v. Horn, 946, 967, 977 
 Austen, In the goods of, 106 
 
 — V. Graham, 31 
 
 — V. Halsey, 1146 
 
 — V. Willes, 92 
 Auster v. Powell, 1375 
 Anther r. Anther, 1025, 1211 
 Aveling v. Knipe, 572 
 
 Avelyn v. Ward, 1025, 1134, 1187 
 Ayery v. Cheslyn, 659 
 
 — r. Osborne, 1936 
 Avison V. Simpson, 984, 1317 
 Awdley v. Awdley, 589 
 Axford, Ee, 14 
 
 Ayles's Trusts, Be, 957 
 Avlesbury, Countess of, case of, 1041, 
 
 1043 
 Aylesford v. Poulctt, 1942 
 Ayliff V. Aylitf, 496 
 Ayliife I'. Murray, 1760 
 Adding, In the goods of, 272 
 Aylmer r. Hide, 1634 
 Aynsworth v. Pratchett, 1292 
 Ayres, In the goods of, 462 
 Ayrey v. Hill, 17, 35 
 Aytou V. Ay ton, 944 
 
 B 
 
 Bachelors. Beau, 1742 
 
 Bacon's Will, Ee, 1344, 1348, 1343 
 
 Bacon v. Bacon, 1721, 1732 
 
 — V. Clark, 1708, 1724 
 
 — V. Simpson, 343, 555 
 Badart's Trusts, Jl", 1446, 1502 
 Baddeley v. Baddeley. 670 
 
 — V. Curwen, 1917 
 Baden «. Earl of Pembroke, 581, 738 
 Badenach, In the gooils of, 228, 234 
 Badger v. Gregory, 1333 
 Badham v. Mee, 1155 
 Badrick-D. Stevens, 1C31, 1184 
 Bafield v. Collard, 717 
 Bagley v. Mollard, 954, 955, 957 
 Bagot V. Bagot, 1567 
 
 — V. Oughton, lf63
 
 INDEX OF CASES. 
 
 xxxvu 
 
 Bagsliaw v. Winter, 1281 
 Bagster v. Fackerell, 587 
 Bague V Dumergue, 1212, 1260 
 Bagwell V. Dry, 1080, 1326 
 Baigent v. Baigent, 260 
 Bailey, In the goods of, GO, 72 
 
 — v. Bailey, 578 
 
 — V. Boult, 1510 
 
 — V. Bristuvve, 845 
 
 — V. Finch, 1784, 1846 
 
 — V. Gould, 1704 
 
 — • V. Hammond, 1284 
 
 — V. Ploughman, 88S 
 
 — V. Wi-iglit, 983 
 Baillie v. Baillie, 1801 
 
 — V. Butteriield, 467, 1156, 1157 
 
 — V. Edwards, 1782 
 
 — V. Treharne, 759, 1341 
 Baily, In the goods of, 198 
 Bain v. Brand, 646 
 
 — r. Lescher, 946, 1081 
 
 — V. Sadler, 888, 1549 
 Bainbridge v. Bainbridge, 1064, 1065 
 Bainbrigge -y. Blair, 1761, 1762 
 Baines v. Dixon, 930 
 
 — V. Ottey, 995 
 Bainton v. Ward, 1550 
 Baird'scase, 1626, 1627, 1683 
 Baker, Ee, 888, 1206, 1739, 1859, 1912 
 
 — V. Baker, 1212, 1213, 1260, 1385 
 
 — V. Batt, 101 
 
 — V. Bayldon, 975, 1281 
 
 — V. Brooks, 455, 841 
 
 — V. Carter, 1936 
 
 — V. Dening, 64, 82 
 
 — V. Fanner, 1212, 1217 
 
 — V. Gibson, 1327 
 
 — V. Gostling, 727 
 
 — V. Hall, 750 
 
 — V. Hanbury. 1075 
 
 — V. Martin, 1153 
 
 — V. Kead, 1922 
 
 — V. Russell, 496 
 
 — V. Sutton, 915, 923 
 Balch V. Symes, 261 
 Balchen v. Scott, 1739 
 Baldwin v. Baldwin, 751, 915 
 
 — V. Church, 818, 1835 
 
 — V. Rogers, 988 
 
 — V. Thompson, 781 
 Baldwyn v. Johnson, 1339 
 Ikll's Trust, lie, 953 
 Ball, Ik, 937, 938 
 
 — V. Harris, 1558 
 
 — V. Mannin, 34 
 
 — V. Montgomery, 1279 
 
 — V. Oliver, 432 
 Ballard v. Marsden, 1232 
 Lallingall, In the goods of. 377, 459 
 Balls D. Westwood, 1604 
 
 Bally V. Wells, 1630 
 Balm V. Balm, 942 
 Balmain v. Shore, HOG 
 
 Bamfield v. Wyndham, 1582 
 Banfield v. Pickard, 259 
 Baugham, In the goods of, 87, 159 
 Bank of Australasia v. Nias, 1392 
 Bank of England v. Lunn, 721 
 
 — V. Motfat, 721 
 
 — V. Parsons, 721 
 Banks v. Goodfellow, 28, 33 
 
 — V. Sladeu, 1297 
 Bannatyne v. Bunnatyne, 20 
 Banner, Ex parte, 1219 
 Bannerraan's Estate, Re, 1503 
 Barber, Ex parte, 1057 
 
 — lu the goods of, 319 
 
 — Re, 756, 899, 988, 1762, 1942, 
 
 1943 
 
 — V. Barber, 1083, 1148, 1293, 1334 
 
 — V. Fox, 1670 
 
 — V. Mackrell, 1772, 1891, 1892 
 
 — V. Walker, 1914 
 Barclay v. Wainwright, 1158 ' 
 Jjaiden, In the goods of, 182, 327, 331 
 Barfordt-. Stuckey, 697, 1774 
 Barhamt; Lord Thanet, 1567, 1568, 1569 
 Barker's Estate, Re, 1324 
 
 Barker, In the goods of, 378, 386, 405, 
 
 406 
 
 — Re, 1448, 1450, 1924 
 
 — V. Barker, 1682 
 
 — V. Birch, 1917 
 
 — V. Hill, 581 
 
 — V. Lea, 1082 
 
 — V. Martin, 1922 
 
 — V. May, 579, 1549 
 
 — V. Rayner, 1184 
 
 — V. Talcot, 792, 1697 
 
 — -y. Young, 936 
 Barksdale v. Gilliat, 1507, 1509 
 Barlow v. Bateman, 983 
 
 — V. Bishop, 739 
 
 — V. Grant, 1154, 1264, 1274 
 
 — V. Orde, 953, 956, 957 
 Barnaby v. Tassell, 1045, 1084 
 Barnard v. Ford, 1279 
 
 — V. Pumfrett, 1228, 1671, 1673, 
 
 1893, 1894, 1895 
 Barnes's case, 825 
 Barnes v. Allen, 773 
 
 — V. Crowe, 164, 165 
 
 — V. Patch, 989, 1386 
 
 — V. Rowley, 1061 
 
 — V. Vincent, 50, 57, 308 
 Barnesly v. Powell, 468, 471, 472, 473 
 Barnett, Re. 903 
 
 — v. Blake, 1109 
 
 — V. Guildford, 557 
 
 — V. Sheffield, 1261, 1897 
 
 — V. Tugwell, 953, 1072 
 Barnwell v. Iremongcr, 1565, 1947 
 Barr v. Barr, 432 
 
 — V. Carter, 205 
 
 — V. Jackson, 466 
 Barraclough r. Greenhougli, 481
 
 XXXV 111 
 
 INDEX OF CASES. 
 
 Barrett, Ke, 1700, 1811 
 Uarriugtou r. Tristram, 943, 1285 
 Barrow v. Barrow, 132, 1278 
 Barrs v. Fewkes, 1346, 1349 
 Barryy. Butlin, 100, 103, 289, 290 
 
 — V. Harding, InjiO, 119(3, 1583 
 
 — V. Robinson, 1828 
 
 — V. Rusli, 1675 
 Bartholomew, Jlr, 1C97 
 
 — V. Henk'j', 95, 145 
 
 — V. May, 1563 
 Bartleman v. ilurchi.son, 937 
 Bartlett v. Dimon.l, 1830 
 
 — V. Gillard, 1164, 1165 
 Barton's Will, Jle, 759, 1341 
 Barton v. Barton, 1131 
 
 — V. Cooke, 1023, 1154, 1224 
 
 — V. Hassard, 1749 
 
 — V. Loudon k Xortli Western Rail- 
 
 way Company, 819 
 
 — V. Xorili Stall'ordshire Railway 
 
 Company, 819 
 
 — r. Robins, 14, 315 
 
 — r. Rock, 432 
 Barwick v. ^Mailings, 311 
 Basanr. Brandon,' 1031, 1188 
 Basham, Ee, 1938, 1939, 1940 
 Baskcomb v. Harrison, 279 
 Basset v. Percival, 1567 
 Bassett's Estate, Ilf, 1017, 1317 
 Batard v. Hawes, 1624, 1663 
 Bate, Re, 1592 
 
 — V. Payne, 1479, 1506 
 
 — V. Robins, 573, 1702 
 — • V. Scales, 1754 
 
 Batenian, In the goods of, 384, 385 
 
 — V. Grey, 944 
 
 — r. Hotchkiu, 1589 
 
 — V. Margerison, 342 
 
 — V. Roden, 1582 
 Bates V. Dandy, 608 
 
 — V. Mackiuley, 1248 
 
 — V. iloore, 1886 
 Bath T. Abney, 1657 
 
 Bathe c. Bank of England, 55, 794 
 Bathurst v. De Latouclie, 893 
 
 — V. Erringtou, 929 
 Batsfordr. Kebbell, 1102, 1107, 1109 
 Batt V. Anns, 1268 
 
 — V. Cuthbertson, 744 
 Batteley v. Windle, 1345 
 Batten, In the goods of, 272, 273 
 Batterbee, In the goods of, 385 
 Battei-sbee, In the goods of, 87 
 Batthvany v. Walfoid, 1593 
 Baud V. Fardell, 1710 
 Baugh V. Read, 1197 
 Baxter v. Burfield, 722, 1597, 1649, 1650 
 
 — V. Gray, 1657 
 
 — V. Losh, 1080, 1081 
 Bayard, In the goods of, 205, 406 
 Bayley's Settlement, Jle, 947, 949 
 Bayley v. Bishop, 1062 
 
 Bayleyv. Snelham, 956 
 
 Baylis, In the goods of, 190, 192, 198 
 
 — V. Att.-Gen., 1013 
 
 — V. Sayer, 93 
 Bayly v. Bayly, 1805 
 Bayne, In the goods of, 206 
 Baynton v. Collins, 662 
 Beach v. Clarke, 93 
 Beachcroft v. Beachcroft, 957 
 Beak's Estate, Ee, 689 
 
 Beal V. Simpson, 424 
 Beale v. Beale, 282, 950 
 
 — r. Symouds, 1560 
 
 Bealest'. Crisford, 947, 977, 989, 1052 
 Beall c. Hilliary, 1803 
 Beard v. Beard, 162, 327 
 Beardmore v. Gregory, 256 
 Beasney's Trusts, Ee, 264 
 Beauchanip v. Lord Huntley, 1911 
 Beaufort v. Duudonald, 1299 
 Beaufoy's Estate, Ee, 1251 
 Beaumont's Trusts, Ee, 915 
 Beaumont v. Oliveira, 918, 1590 
 — V. Squire, 1140, 1146 
 Beavan, In the goods of, 123, 124, 390 
 
 — V. Beavan, 1249, 1251 
 
 — V. Lord Hastings, 215 
 Bea,vevv. Nowell. 971 
 
 Beck V. Burn, 1096 
 
 — V. Pierce, 1654 
 
 — V. Rebow, 647 
 Beckett v. Howe, 75, 77, 90 
 Bcckford v. Parnecott, 164 
 
 — V. Tobin, 1287 
 Beckley r. Dorington, 1916 
 P.eckton v. Barton, 1197 
 Beckwith v. Beckwith, 1333 
 
 — V. Bullen, 1782 
 Bective v. Hodgson, 586, 587 
 Beddoe, Ee, Add. 
 
 Bedell v. Constable, 204 
 Bedford, In the goods of, 125 
 Bedsou's Trusts, Ee, 931, 932, 943 
 Beech v. Keep, 1658 
 Beeching v. Morphew, 1701 
 Beer, In the goods of, 204, 321, 408 
 Beeston v. Booth, 1222, 1223 
 Beeton v. Darkin, 1384 
 Beggia, In the goods of, 365, 376 
 Begley v. Cook, 1329, 1386 
 Belaney v. Belaney, 1544 
 Belbin v. Skeats, 269, 286 
 Belcher v. Belcher, 1908, 1909 
 
 — V. Maberly, 460 
 Be\chiev, Ex parte, 1721, 1722, 1723 
 Belk 1-. Slack, 1138 
 Bell, In the goods of, 190, 321, 350 
 
 — V. Armstrong, 277, 278, 279, 281 
 
 — V. Bell, 1173 
 
 — V. Fothergill, 116, 134 
 
 — V. Jackson, 1155 
 
 — V. Kennedy, 1393, 1394 
 
 — r. Tiuiiswood, 364
 
 IXDEX OF CASES. 
 
 XXXIX 
 
 Bellairsr. Bellairs, 1119, 1141, 1237 
 Bellamy, Re, 606, 613 
 Bellasisu Uthwatt, 1161, IKJS 
 Bellew V. Bellew, 429, 430 
 
 — V. Jucklcdon, 1861 
 Belt V. Slack, 1330 
 Belvidere v. Rouhfort, 1570 
 Bempde v. Johnstone, 1392 
 Benbow, In the goods of, 277 
 Benfield v. Solomons, 1917 
 Benham's Trusts, lie, 264 
 Beningfteld v. Baxte)-, 1918 
 Benn, Re, 1332, 1333, 1334 
 
 — V. Dixon, 1040, 1252 
 Bennet v. Batchelor, 1326, 1347 
 
 — V. Bennet, 1200, 1370 
 Bennett's Trusts, Re, 1079, 1108 
 Bennett, Re, 1922 
 
 — Re, Ex parte Kirk, 1171 
 V. Attkius, 1936 
 
 — V. Bennett, 966 
 
 — V. Hayter, 924 
 
 — V. Houldsworth, 1196 
 
 — V. Lytton, 1204 
 Bennison, In the goods of, 455 
 Benson v. Benson, 114, 125 
 
 — V. Maude, 1240, 1287 
 
 — V. Whittam, 1052 
 Bent V. CuUen, 1059, 1061 
 Bentham v. Wiltshire, 575, 576 
 Bentinck v. Portland, 1116 
 Bentley v. Meecli, 936 
 
 — V. OldHeld, 1583 
 Benyon v. Benyon, 1156, 1158 
 
 — V. Maddison, 1105 
 Beresford v. Browning, 1622 
 
 — V. Hobson, 1283 
 Bergman, In the goods of, 495, 497 
 Berkeley v. Swinburne, 943, 944, 1122 
 Bernal v. Bcrnal, 976 
 Bernard v. Minshull, 1320, 1321 
 
 — V. Montague, 974, 1090 
 Bernasconi t;, Atkinson, 1011, 1012 
 Berrington v. Evans, 1930 
 
 Berry v. Berry, 952 
 
 — V. Briant, 1332 
 
 — V. Gibbons, 803 
 
 — V. Taunton, 809 
 
 — V. Usher, 583, 1179, 1180 
 Beri'yman v. Peacock, 622 
 Bertie v. Chesterfield, 1655 
 
 Berwick v. Andrews, 699, 1601, 1865, 
 1867, 1868 
 
 — Mayor of, v. Murray, 1756 
 Besant v. Cox, 1126 
 
 Bescoby v. Pack, 1056 
 Best's Settlements, Re, 993 
 Best V. Argles, 744 
 Bethell-y. Abraham, 1707 
 
 — ■;;. Green, 1565 
 
 — V. Stanhope, 1535 
 
 Bethune-y. Kennedy, 1028,1035, 1039,1252 
 Betts, In the goods of, 197 
 
 Betts V. Kimpton, 755 
 
 Betty Smith's Trusts, Re, 1134 
 
 Bevan's Trusts, Re, 1104, 1113 
 
 Bevan v. Att.-Gen., 1022 
 
 Beverley's case, 12, 14 
 
 Bewick v. Whitfield, 622 
 
 Bewley, Re, 1629 
 
 Bewsher v. Williams, 313 
 
 Bianchi, In the goods of, 1395 
 
 Bibb V. Thomas, 116 
 
 Bibby v. Thompson, 977, 990 
 
 Bibin v. Walker, 96 
 
 Bick V. Motley, 1755 
 
 Bickham v. Cruttwell, 1563, 1569, 1578 
 
 Bicknel v. Page, 1582 
 
 Bide V. Harrison, 1063 
 
 Biederman v. Seymour, 1588 
 
 Biggar, In the goods of, 51 
 
 Biggs V. Andrews, 584 
 
 Bignell y. Harpur, 1666 
 
 Bilborougli v. Holmes, 1623 
 
 Bill V. Kinaston, 1253 
 
 Billing V. Billing, 1130 
 
 — V. Brogden, 1895 
 Billinghurst i'. Spearman, 601, 1637 
 
 — V. Vickers, 35, 36, 100, 288, 
 
 289, 316 
 
 — V. Walker, 1567 
 Billings V. Sandom, 1127 
 Billingsley v. Wills, 1107 
 Binckes, In the goods of, 442 
 Biudon, Viscountess of, 674 
 Bingham v. Bingham, 1357 
 Binniugton v. Harwood, 1758 
 Binns V. NichoUs, 1587 
 Biou, In the goods of, 446 
 Birch, Re, 1143, 1206, 1859 
 
 — V. Baker, 1185 
 
 — V. Birch, 113 
 
 — V. Dawson, 647, 1050 
 
 — V. Sherratt, 1212 
 
 — V. Wright, 1604 
 Bird, Re, 1721, 1814 
 
 — V. Bird, 33 
 
 — V. Hunsdon, 1143 
 
 — V. Le Fevre, 1319 
 
 — V. Luckie, 987 
 
 — v. Maybury, 1099 
 
 — V. Peagrum, 661, 755 
 
 — V. Ralph, 1610, 1612 
 
 — V. Webster, 973 
 
 — V. Wood, 988 
 Birkett, Re, 921, 925 
 
 — V. Vandercom, 205 
 Birks V. Birks, 138, 146, 293 
 Birt, In the goods of, 71 
 
 — Re, 887 
 Birtwhistle v. Vardill, 1388 
 Biscoe V. Jackson, 924 
 Bishop V. Church, 1621, 1846 
 
 — V. Curtis, 3, 812 
 
 — V. Elliott, 640, 648 
 
 — V. Wall, 59
 
 xl 
 
 INDEX OF CASES. 
 
 Bissell V. Axtell, 1877 
 Bissctt V. Antrobus, 838 
 l?ittleston t: Clark, 280 
 Uizzey i'. Fli-^ht, Srt, 87, 1307 
 lUadifoid. lie, 1928 
 Ulnck V. Jobliiis:!, 132 
 Blaokborough r. Davis. 355, 358, 359, 360, 
 493, 503, 570, 890, 1377, 
 1378, 1381, 1382 
 Blackett r. Blaokett, 1880 
 Blaekluiiu's oase, 477 
 Blackmail, Be, 1011 
 Blaekiiior r. fiercer, 1865, 1866 
 Blackniore i: Siiee, 1330 . 
 lilaokshaw v. Rogers, 1211, 1220 
 Blaokwell, In tlu- goods of, 198 
 
 — V. Bull 990 
 
 — r. Child, 1189 
 
 — V. Peniiant, 1008 
 Blackwood v. The Quceii, 854, 1531 
 Blades v. Free, 1656 
 
 — V. Higgs, 619 
 Blagrave, In the goods of, 382 
 Blagrove v. Coore, 178, 953 
 Blaiklock v. Grindle, 1308 
 Blainfield v. March, 252 
 Blair r. Bron)lcy, 1623 
 
 — V. Nugent, 1800 
 Blake, Be. 1949 
 
 — V. Blake, 74, 78, 90, 93, 1193, 1882 
 
 — V. Gale, 1314 
 
 — V. Gibbs, 628 
 
 — V. Knight, 75, 77, 91, 276 
 
 — V. Midland Railway Company, 704 
 
 — V. Shaw, 1051 
 Blakcley's case, 1627 
 Blakeley v. Blakeley, 1891 
 Blakemore's Settlement, Be, 1122 
 Blakesley r. Sniallwood, 1846 
 Blamire v. Geldart, 1105 
 
 Bland v. Davison, 1878 
 
 — t: Lamb, 1317, 1319, 1325 
 
 — V. Williams, 1111 
 Blandford v. Kackerell, 922 
 Blandy v. AVidmore, 1362, 1365 
 Blankard v. Galdy, 1532 
 
 Blaun v. Bell, 1040, 1058, 1252, 1584, 
 
 1591 
 Blasson v. Bla.sson, 1367 
 Blatchford v. Woolley, 1550 
 Blease v. Burgh, 942, 10S9, 1129 
 Bleckley, In the goods of, 132 
 Blenkinsop iJ. Foster, 1SS6 
 Blewitt, In the goods of, 82, 123 
 
 — V. Blewitt, 257, 1914 
 
 — V. Roberts, 1058, 1059, 1060 
 Bligh V. Brent, 720 
 
 — V. Lord Darnley, 1524, 1590 
 Blight V. HartnoU, 1059, 1060, 1061, 1320 
 Blinkhorne v. Feast, 1347 
 
 Bliss V. Putman, 1511 
 Blockley, 7fe, 1375, 1376 
 Blogg V. Johnson, 1751 
 
 Bloomfield, In the goods of, 1318 
 Blount, Ro, 19U7 
 
 — V. Bestland, 746 
 
 — V. Burrow, 682, 685 
 
 — V. Hipkins, 1582, 1649 
 Blower's Trusts, Be, 962, 963 
 Blower r. Monet, 1218, 1220, 1223- 
 Bloxam r. Favre, 10, 304, 309 
 Blue V. Marshall, 1697 
 
 Bluett V. Jessop, 1948 
 Bluiulcll's Trust, Be, 902 
 Blundell V. Chapman, 936, 978 
 
 — r. Dunn, 956 
 
 — V. Gladstone, 1011 
 Boardmau v. Stanley, 1054 
 Boatwright v. Boatwright, 1839, 1929' 
 Boddicott V. Dalzeel, 192, 402 
 Boddington, In the goods of, 1179 
 
 — Be, 1016, 1142 
 Boddy V. Dawes, 1292 
 Bodger v. Arch, 553 
 Bodnian, Be, 1056 
 Body V. Hargrave, 1520 
 
 — V. Kent, 1918 
 
 Boehm, In the goods of, 293, 316, 317 
 
 — V. Wood. 1933 
 Bolger V. ]\Iackell, 1089 
 Boliugbroke v. Kerr, 765 
 r.ollard r. Spencer, 760 
 Bolton, In the goods of, 300 
 
 — Be, 954, 957 
 
 — V. Powell, 458 
 Bonaparte, Napoleon, Be, 263, 32i 
 Bond, Ex jMrte, 1273 
 
 — V. Bond, 430, 462 
 
 — V. England, 1567 
 
 — V. Faikney, 200 
 
 — V. Graham, 297, 1914 
 
 — r. Nurse, 1830 
 
 — V. Seawell, 85 
 
 — V. Simmons, 751 
 
 — r. Walford, 1806 
 Bone V. Cook, 1074 
 
 — V. Whittle, 282 
 Bonifaut -y. Greenfield, 823 
 Bonithon v. Hockmore, 1768 
 Bonner, Be, 965 
 
 — V. Bonner, 1590 
 Bonney v. Ridgard, 806 
 
 Bonsor and Smith's Contract. Re, 1801 
 Booker r. Allen, 1161, 1195,'ll97, 119? 
 Boon's case, 843 
 Booth's Trusts, 299 
 
 Booth V. Booth, 1092, 1096, 1691, 1724, 
 
 1734 
 
 — V. Carter, 913 
 
 — V. Coultou, 1212, 1213, 12S9 
 
 — V. Dean, 1007 
 
 — V. Vicars, 988. 1001, 1385 
 Bootle, In the goods of, 182, 327 
 
 — 1-. Blundell, 1577, 1578, 1579, 1581, 
 
 1582- 
 Boraston's case, 1106
 
 INDEX OF CASES. 
 
 xli 
 
 Boreham v. Bignall, 961, 1109 
 Boiiase v. Borlase, 22 
 Borton-y. Borton, 744, 1131 
 
 — V. Dunbar, 1054, 1318 
 Bosanquet v. Bosaaquet, 7 7 
 Bostock V. Flover, 1720, 1723 
 Boston V. Fox," 281 
 Boswell, In the goods of, 323 
 Bosworth, Mc, 1891 
 
 Bothamley v. Sherson, 177, 1019, 1021, 
 1023,1024,1028,1301,1646,1018 
 Bothomly v. Fairfax, 865 
 Bouchier v. Taylor, 465 
 Boughey v. Moreton, 1 33 
 Boughtou v. Bonghton, 1308, 1584 
 
 — V. Knight, 29, 31, 312 
 Boulton r. Beard, 1109 
 
 — V. Canon, 1634 
 
 — V. Pilcher, lU99 
 Bourke t'. Ricketts, 1295 
 Bourne, Re, Add. 
 
 — V. Bourne, 604 
 
 — V. Fosbrook, 661 
 Bousfield V. Lawford, 1174 
 Bouts V. Ellis, 689, 690 
 Bouverie v. Bouverie, 1331 
 
 — V. Maxwell, 457, 1950 
 Bowaman v. Reeve, 1587 
 Bowden v. Bowden, 1039 
 Bovven, Re, 1892, Add. 
 Bowerbank v. Monteiro, 1671 
 Bovvers v. Bowers, 1126, 1330 
 
 — V. Littlewood, 1368, 1384 
 Bowes, Me, 1638 
 
 — V. Bowes, 165 
 Bowker v. Evans, 783 
 
 — V. Hunter, 1347 
 Bowles V. Bowles, 947 
 
 — V. Harvey, 844 
 Bowman, Re, 1333 
 
 — V. Hodgson, 286 
 Bowsher t;. Watkins, 1917, 1918 
 Bowyer tJ. GrifSn, 1939 
 
 Box, Re, 1649 
 
 — V. Barrett, 1305 
 
 — V. Box, 744 
 
 — V. Jackson, 744 
 Boxall V. Boxall, 501, 1278 
 Boyd V. Boyd, 1374, 1375, 137G 
 
 — V. Brooks, 893 
 
 — V. Buckle, 1260 
 Boydell v. Golightly, 638 
 Boyes, Re, 90, 330, 331, 1350 
 
 — V. Cook, 176, 1323 
 Boyle, In the goods of, 232 
 Boyntou v. Boynton, 778, 1789 
 
 — V. Richardson, 1936 
 Boyntun v. Boyntun, 678 
 Boys V. Boys, 1039, 1252 
 
 — V. Bradley, 986 
 
 — V. Morgan, 1317 
 
 — V. Williams, 1029, 1161 
 Boyse, Re, 1529, 1801 
 
 Boyse v. Rossborough, 41 
 Brace, Re, 1323 
 Bracebridge v. Cook, 612 
 Bracken, Re, 1207, 1822 
 Biackenbury, In the goods of, 378, 379 
 Bradbury v. Morgan, 1595, 1660 
 Braddock, In the goods of, 86, 93 
 Braddon v. Farrand, 1345 
 Bradford v. Young, 241, 465, 476, 487, 
 
 940, 1395 
 Bradley, In the goods of, 114, 191 
 
 — V. Peixoto, 1129 
 Bradly v. Heath, 1670 
 Bradshaw, In the goods of, 494 
 
 — V. Bradshaw, 1273 
 
 — V. Lancashire and Yorkshire 
 
 Railway Co., 709 
 
 — V. IVIelling, 975 
 
 — v. Tasker, 902 
 Bragner v. Langmead, 860 
 Braham v. Burchell, 54, 277, 278 
 Braine v. Braiue, 269 
 Braithwaite, Re, \-2i)7 
 
 — V. Britain, 1841 
 
 — V. Cooksey, 1872, 1873 
 
 — V. Skinner, 1829 
 Brake, In the goods of, 1012 
 Braniley -y. Bramley, 282, 312 
 Brand, In the goods of, 36, 136 
 Brandon v. Aston, 944 
 
 — V. Brandon, 976, 980, 985 
 
 — V. Robinson, 1130, 1131 
 Brandram, Re, 1886 
 
 Bransby v. Grantham, 564 
 
 — V. Haines, 46 
 Branstrom v. AVilkiuson, 1293 
 Brant v. King, 448 
 Bi-autom v. Grittits, 623 
 Biassey v. Chalmers, 825 
 Brassington v. Ault, 253, 569, 786, 1777 
 Brawley v. Wade, 936 
 
 Bray v. Tofield, 1907 
 
 Braybrooke, Lord, v. Att.-Geu., 1447, 
 1448, 1455, 1468 
 Brazier v. Hudson, 250 
 Bree v. Perfect, 1096, 1113 
 Breed's Will, Re, 1270 
 Breedou v. Tuginan, 1103 
 Bremer v. Freeman, 302, 304, 313, 1392 
 Brenchley v. Lynn, 151, 323, 328, 447 
 
 — V. Still, 326 
 Breton, Re, 670 
 
 — V. Mockett, 1253 
 Brett V. Brett, 898 
 
 — V. Cumberland, 609, 1631 
 
 — V. Horton, 1385 
 Brewer v. Pocock, 1204 
 Brewis, In the goods of, 87, 89 
 Brewster, In the goods of, 115 
 Briant, Re. 1172, 1175 
 
 Brice v. W^ilson, 1678, 1680 
 ]5rickenden v. Williams, 1322 
 Briden v. Hewlett, 988
 
 xlii 
 
 INDEX OF CASES. 
 
 Bridge V. Abbott, 1000, lOOG, 1075, 13C6 
 
 — r. Bridge, 1658 
 
 — V Brown, 839, 1275 
 
 — L\ Yates, 13-28 
 Bridger, In the guods of, 204 
 
 — Jic, 927 
 Bridges r. Brid^'es, 1064 
 
 — V. Duke of Newcastle, 374 
 
 — r. Smvth, 1604, 1784 
 Bridgmaii c. Dove, 1049, 1066, 1579 
 Bridguoith (Corporation of) v. Collins, 
 
 965 
 Brier, lie, 1720, 1721, 1722, 1892 
 liriers v. Goddard, 423 
 Brigden r. Farkes, 1664. 
 Briggs, Re, 1912 
 
 — V. Penuy, 90, 330, 1349, 1350 
 
 — V. Roope, 379 
 
 — V. Upton, 995 
 
 — V. Wilson, 1700, 1701 
 Bright's Trusts, Be. 1106, 1108, 1111 
 Bright V. Larcher, 1212, 1924 
 
 — r. Rowe, 1082, 1115, 1138 
 Bright Smith, He, 929 
 
 Brightman v. Keighley, 189, 193, 1537, 
 
 1696 
 
 Brighton, In the goods of, 349 
 
 Brine v. Ferrier, 1157 
 
 ]5riukman v. Brinkman, 680 
 
 Briusinead v. Harrison, 568 
 
 Bristol (Dean of) v. Guyse, 1778, 1883 
 
 Bristow v. Bristow, 1011, 1162, 1285. 
 
 1947 
 
 British Guardian Life Assurance Co., lie, 
 
 1600 
 
 British Museum v. White, 78, 918 
 
 British Mutual Investment Co. v. Smart, 
 1556, 1560, 1561 
 
 Britten v. Britten, 1280 
 
 Brittlebank v. Goodwin, 1922 
 
 Britton v. Batthurst, 880 
 
 — V. Jones, 1853 
 
 Broadhui'St v. 15alguy, 1724, 1728, 1729, 
 1730, 1732 
 Broadmead v. Wood, 947 
 Broadwood, Re, 1S86 
 Brock V. Bradlej', 1134 
 Brocksopp V. Barnes, 1759 
 Brodie v. Barry, 673, 1307 
 Brogden, He, 1313 
 
 — V. Brown, 17, 23, 290, 848 
 Broker v. Charter, 226, 232, 1239 
 Bromage v. Lloyd, 812 
 Bronifield v. Chichester, 1518 
 
 — v. Crowder, 1112 
 Bromhall v. Wilbrahani, 1580 
 Bromley v. Brunton, 689, 690 
 
 — V. Wright, 584, 1062 
 Bronsdon t'. Winter, 1021, 1188 
 Brook V. Badley, 907, 911 
 
 — V. Skinner, 1802 
 
 — V. Turner, 48 
 Brooke, In the «oods of, 124 
 
 Brooke v. Brooke, 668 
 
 — V. Haymes, 227, 233 
 
 — V. Kent, 112, 125 
 
 — -y. Lewis, 1240 
 
 — V. Turner, 48, 1042, 1046, 1048 
 Brookes v. Stroud, 1776 
 
 Brooking v. Jennings, 425, 881 
 Brooks V. Oliver, 1876 
 Brooksbank, He, 1304, 1305 
 
 — V. Smith, 1929 
 
 — r. Wentworth, 1051 
 Broome v. Monck, 1643, 1644 
 Brophy v. Bellamy, 1272 
 Broilierton v. Bury, 1127 
 
 — V. Harris, 417 
 
 — V. Hellier, 843, 846 
 Brougham (Lord) v. Poulett, 1927 
 Broughton v. Broughton, 1761, 1762, 1764 
 
 — V. Randall, 1073 
 Brouncker v. Bagot, 598 
 Brown's Trusts, He, 937, 957, 1319 
 
 — Will, He, 1143 
 Brown, Ex imrte, 1898 
 
 — In the goods of, 153, 190, 194, 
 
 319, 498 
 
 — V. Allen, 1223 
 
 — V. Brown, 134, 136, 137, 153, 286, 
 
 319, 1222 
 
 — V. Burdett, 1949 
 
 — V. Coates, 261 
 — • ^•. Dawson, 1162 
 
 — V. De Tastet, 1745, 1747, 1814, 
 
 1815 
 
 — v. Dowthwaite, 1916 
 
 — V. Farndell, 1316, 1367, 1402 
 
 — V. Gellatly, 1245, 1248, 1250, 1252 
 
 — V. Gordon, 1618, 1623, 1841 
 
 — V. How, 1936 
 
 — V. Lake, 1210, 1915 
 
 — V. Litton, 1705 
 
 — v. Nicholls, 404 
 
 — V. Oakshott, 1327, 1341 
 
 — 'c. Peck, 1129 
 
 — V. Pittman, 1878 
 
 — V. Poyns, 205 
 
 — V. Sclwyn, 1176, 1179, 1180 
 
 — i: Smitii, 1272, 1274, 1393, 1-397 
 
 — V. Southouse, 1750, 1753 
 
 — V. Spooner, 1771 
 
 — V. Temperley, 1291 
 
 — V. Wood, 359, 360, 492, 493, 984 
 
 — i\ Wooler, 1121 
 Browne v. Browne, 1113 
 
 — V. Collins, 1601 
 
 — V. Cross, 1922 
 
 — V. Elton, 1277 
 
 — V. Hammond, 943, 1086 
 
 — V. Hope, 1075 
 
 — V. Lord Kenyon, 1138 
 Browning, In the goods of, 352 
 
 — V. Budd, 288, 290 
 
 — V. Reane, 348 
 Brownrigg x. Pike, 50, 182, 327
 
 INDEX OF CASES. 
 
 xliii 
 
 Brownson v. Lawraiice, 1571 
 Bruce, He, 1392, 1393, 1496 
 
 — V. Bruce, 1397 
 
 — V. Chaiitou, 1094 
 
 — V. Morice, 156S 
 Brudael's case, 423 
 Bruen v. Brueii, 1167 
 Bruere v. Pembertoii, 1751 
 Bruin v. Knott, 1274 
 Brummel v. Prothero, 1579 
 Bruiuridge v. Brumridge, 1735 
 Brunei v. Brunei, 1395, 1396 
 Brunker v. Cook, 4 
 Brunsden v. Woolridge, 980 
 B)'unt I'. Brunt, 125 
 Bryan's Trusts, Ee, 961 
 Bryan, Ee, 1278, 1327 
 
 — V. Clay, 876 
 
 — V. Mansion, 1427 
 
 — i'. Twigg, 1327, 1329 
 
 — V. White, 82 
 Bryden v. Willett, 937, 975 
 Brydges v. Duchess of Chandos, 4 
 
 — V. Phillips, 1579, 1581 
 
 — V. AVotton, 1152 
 Bryon, Ec, 953, 957 
 Bubb's case, 581 
 
 Bubb V. Padwick, 1091 
 
 — V. Yelverton, 1150 
 Bubbers v. Harby, 388 
 Buchans case, 1628, 1629 
 Buck V. Norton, 930 
 
 — V. Robson, 1626 
 Buckeridge v. Ingram, 720 
 Buckinghamshire (Lord) v. Drury, 1361 
 Buckland, JEx jmHc, 857 
 
 — V. Butterfield, 656, 657 
 Buckle V. Fawcett, 933, 975 
 Buckley's Trusts, Ec, 1266, 1268, 1293 
 Buckley v. Barber, 224, 571 
 
 — V. Pirk, 1520, 1635, 1636, 1637 
 Buckmaster v. Harrop, 1644 
 Buckworth v. Simpson, 1642 
 
 Budd, In the goods of, 138 
 
 — V. Silver, 362 
 
 Buffar V. Bradford, 977, 1080, 1347 
 Buissieres v. Albert, 1381, 1382, 1384 
 Bulgen V. Sage, 1909 
 Bulkeley v. Wilford, 100, 468 
 Bull V. Bull, 247 
 
 — V. Pritchard, 1109, 1113 
 
 — V. Wheeler, 1860 
 Bullmore v. Wynter, 962 
 Bullock, In the goods of, 407 
 
 — V. Bennett, 176, 179, 1141,1143 
 
 — V. Downes, 983, 987, 1327, 1922, 
 
 1924, 1927 
 
 — V. Wheatley, 1708, 1718 
 Bulmer v. Buhner, 705 
 
 — V. Hunt, 665 
 
 — V. Jay, 996, 998 
 Bulstrode v. Bradley, 1891 
 Bulwer v. Bulwer, 630 
 
 Bunbury v. Bunbury, 1801 
 
 — V. Hewson, 1610, 1612 
 Bund V. Green, 1351 
 
 Bunn, Ee, 1099 
 
 — V. Markham, 684, 686, 691 
 Bunting, Ee, 826 
 
 — V. Marriott, 910 
 Bunyan v. Mortimer, 1932 
 Burch, In the goods of, 376 
 Burchett ■y. Woolward, 1128 
 Burchmore, In the goods of, 387 
 Burden v. Burden, 1752, 1760 
 Burdett, In the goods of, 381 
 Burdick v. Garrick, 1753, 1755, 1922 
 Burdon v. Dean, 753 
 
 — V. Morgan, 446 
 Burge V. Brutton, 891, 1761 
 Burges v. Mawbey, 1080 
 Burgess, In the goods of, 385 
 
 — V. Burgess, 1150 
 
 — V. Marriott, 842, 844 
 
 — V. Robinson, 1133, 1259 
 Burgoyne v. Showier, 77, 91 
 Burke v. Jones, 1923 
 Burleigh v. Stott, 1839 
 Burleton v. Humfrey, 1143 
 Burley v. Evelyn, 587 
 
 Burls V. Burls, 313, 318 
 Burn V. Burn, 1621 
 — V. Cole, 301, 365 
 Burnaby v. Barsby, 917 
 Burne v. Richardson, 801 
 Burnell v. Brown, 1295 
 Burnet v. Dixe, 892 
 
 — V. Mann, 1367, 1380, 1383 
 Burnett v. Holden, 777, 860 
 
 — V. Lynch, 1632 
 Burney v. Morgan, 1918, 1919 
 Burnham v. Bennett, 747 
 Burnie v. Getting, 1055 
 Pnirrage, Ee, 1899, 1900 
 Burrell, In the goods of, 385 
 
 — Ee, 1559 
 Burridge v. Bradyl, 1217 
 Burrough v. Moss, 739 
 
 — V. Philcox, 979 
 Burroughs v. Elton, 1917 
 
 — V. Griffiths, 280 
 
 — V. Stevens, 1859 
 Burrowes v. Gore, 1927 
 Burrows v. Burrows, 15 
 
 — V. Cottrell, 1513 
 
 — V. Walls, 1729, 1739 
 Burt V. Hellyar, 979, 989 
 Burtenshaw v. Gilbert, 126, 127 
 Burting v. Stonard, 802 
 Burton's Will, Ec, 1267 
 Burton v. CoUingwood, 157 
 
 — V. Knowlton, 1580, 1581, 1582 
 
 — V. Mount, 1039, 1252 
 
 — V. Newbery, 7, 166, 1307 
 
 — V. Pierpoint, 677 
 
 — V. Sharp, 360
 
 xliv 
 
 INDEX OF CASES. 
 
 Burtt, Ee, 830 
 
 liusfield, lie, 1806 
 
 Bush V. Cowan, 1319 
 
 lUishby v. Miuulay, 1801 
 
 Bu^hell, In the goods of, 294, 316 
 
 liustanl V. Saunders, 977 
 
 Bute, Marquis of, v. Cunj'ngh am p, 1 570, 1572 
 
 — V. Harmau, 1109 
 
 Butler, Ex parte, 5()0 
 
 — Re, 759, 1341 
 
 — V. Bernard, 791 
 
 — V. Bushnell, 988 
 
 — V. Butler, 539, 929, 1271, 1568 
 
 — V. Carter, 1928 - 
 
 — V. Dunconib, 950 
 
 — V. Freeman, ri'iS, 1292 
 
 — V. Gray, 1324 
 
 — V. Greenwood, 154 
 
 — i: Lowe, 942 
 
 — V. Strutton, 976, 1385 
 Butt's case, 596 
 
 Butters. Ommaney, 971, 1076 
 Butterworth v. Harvey, 110(5, 1138 
 Buxton j;. Buxton, 1703, 1718 
 Byam V. Sutton, 604 
 Byde V. Byde, 1166, 1167 
 Byne v. Currey, 1513 
 Byug V. Byng, 633, 946 . 
 
 — r. Lord Strafford, 933, 966, 1130 
 BjTchall V. Bradford, 1256 
 
 Byrd, In the goods of, 79, 83 
 
 — V. WiJford, 733 
 Byrn v. Godfrey, 1542 
 Byrne v. Norco'tt, 1724 
 Byron's Settlement, ife, 1322 
 Byron v. Brandreth, 1053 
 By«ater, Re, 290 
 
 Cabell f. Vaughan, 1176 
 Cable V. Cable, 987 
 Cadbury v. Smith, 1895, 1896 
 Cadge, In the goods of, 113, 1318 
 Caauan v. Cadman, 1271, 1275 
 Cadogan, Re, 1063, 1318 
 Cafe V. Bent, 1039, 1252 
 Cage V. Eussel, 1139 
 
 Caldecottv, Caldecott, 1040, 1245, 1246, 
 1249, 1252 
 — V. Harrison, 964 
 Calder v. Rutherford, 1615 
 Caldieot v. Smith, 1384 
 Caldwell v. Fellowes, 1341 
 Callaghan v. Callaghan, 1658 
 Callaway, In the goods of, 301 
 Callisher v. Bischoflsheim, 1219 
 Callow V. Callow, 1056 
 Calniady ■;;. Calmadj', 672, 675, 677 
 Calthorpe v. Gough, 1084 
 Calvert v. Sebbon, 1514 
 Caly V. Joslin, 1634. 1636 
 
 Cambiaso v. Negrotto, 459 
 Cambridge r. Kous, 1046, 1078, 1125, 1319, 
 
 1330 
 Camden v. Fletcher, 213 
 Camoys -y. Blundell, 1011 
 Campauari v. Woodburn, 1599 
 Camjibeirs Trusts, Re, 1385 
 Campbell, Ex parte, 1919 
 
 — In the goods of, 441, 461 
 
 — V. Beautoy, 303, 476, 1389 
 
 — V. Brownrigg, 1138, 1155 
 
 — %: Campbell, 886,1167,1200,1767 
 
 — V. French, 147, 1283 
 
 — V. Graham, 1031, 1171, 1297 
 
 — V. Luc}-, 479, 480 
 
 — 'V. Lord Netterville, 1145 
 
 — V. Prescott, 1040, 1048 
 
 — r. Radnor (Lord), 475, 1157, 
 
 1160, 1894 
 Camiiion v. Cotton, 665. 677 
 Candler r. Tillett, 1728, 1734 
 Candy v. CampViell, 966 
 Canning v. Hicks, 602 
 Cannings v. Flower, 1270 
 Cauterburj-, Alj^i. of, v. Hou.se, 404 
 
 — V. Robertson, 458, 
 
 1353 
 
 — V. Tappen, 1353 
 Capdevielle, Re, 1395, 1502 
 Capliu, Re, 981 
 
 Capion V. Capron, 731 
 Cardale v. Harvey, 413 
 Careless v. Careless, 1015 
 Carew v. Burgoyne, 741 
 Carey v. Askew, 1258, 1307 
 
 — V. Goodiuge, 1179, 1180 
 Carlyon, Re, 1904 
 
 Carmichael, In the goods of, 402, 1073 
 
 — V. Carmichael, 216, 219 
 
 — V. Gee, 1212, 1213, 1259 
 
 — V. Hughes, 1273 
 
 — V. WiLson, 1264, 1275 
 Carne v. Brice, 661 
 
 — V. Long. 920 
 Carpenter v. Bott, 982 
 
 — V. The Queen's Proctor, 463 
 
 — V. Shelford, 379 
 Carr's Trusts, Re, 1278 
 Carr, In the goods of, 414 
 
 — V. Carr, 1063 
 
 — V. Ea.stabrooke, 1163, 1279 
 
 — r. Loid Errol, 637 
 
 — V. Ingleby, 1221 
 
 — V. Roberts, 539, 541, 1794 
 
 — i;. Taylor, 753, 1175, 1283 
 
 Carron Iron Co. r. ilaclaren, 368, 853, 
 1389, 1801 
 Cart V. Hodgkin, 700 
 
 — V. Ree.s, 349, 755, 1358 
 Carte v. Carte, 1192 
 Carter v. Barnardiston, 605 
 
 — V. Bentall, 933, 975 
 
 — V. Crawley, 361, 1352, 1366, 1384
 
 INDEX OF CASES. 
 
 xlv 
 
 Carter v. Crofts, 296 
 
 — V. Green, 916, 922 
 
 — V. Taggiirt, 1281, 1320 
 Cartwright's case, 362, 416 
 Cartwright, Be, 1605 
 
 — V. Cartwright, 16, 18, 1129 
 
 — V. Shepheard, 1691 
 
 — V. Vawdry, 953, 957 
 Carver v. Bowles, 1194, 1302 
 
 — V. Burgess, 1330 
 Gary v. Abbot, 901, 902 
 
 — V. Appleton, 677 
 
 — V. Hills, 216, 1912 
 
 — V. Stephenson, 1785 
 Casement v. Fulton, 74, 79 
 Casmore, In the goods of, 69 
 Cassidy, In the goods of, 376, 407, 438 
 Casson v. Dade, 80 
 
 Castle i;. Fox, 178, 1069, 1302 
 
 — V. Warland, 1721, 1732 
 Castleton v. Fanshaw, 1699 
 Castrique v. luirie, 1392 
 Catchside v. Ovington, 848 
 Catherwood v. Chabaud, 569, 764, 792, 
 
 831, 1794 
 Catley v, Sampson, 1560 
 Caton V. Coles, 1605 
 
 — V. Rideout, 668 
 Cator V. Cator, 932 
 Catt's Trust, Ee, 1139 
 Cattell V. Simons, 1210, 1919 
 Cattlin V. Brown, 1116 
 Cattrall, In the goods of, 73 
 Cavan v. Pulteney, 1307 
 Cave V. Cave, 647 
 
 — V. Roberts, 370, 1360, 1387 
 Cavendish v. Cavendish, 1719 
 Caweth v. Phillips, 1173 
 Cawthorn, In the goods of, 153 
 Cawthorne, Ee, 1433, 1820 
 
 — V. Chalie, 380 
 Chadwick v. Doleman, 947, 948, 949 
 Chadwin, Ex parte, 1216 
 
 Chaffe V. Kelland, 1834 
 Chaffers v. Headlam, 1880 
 Challen v. Shippam, 1721 
 Challoner v. Challoner, 1866 
 Chalmer v. Bradley, 567 
 Chalmers v. North, 988 
 — V. Storil, 1064 
 Chamberlain, In the goods of, 498 ^ 
 
 — V. Chamberlain, 1205, 1313, 
 
 1797 
 
 — V. Williamson, 709, 710, 714, 
 
 715 
 Chambers, Ex parte, 1275 
 
 — V. Bicknell, 376, 377 
 
 — V. Brailsford, 933, 936 
 
 — V. Chambers, 1040, 1252 
 
 — V. Goldwin, 1269, 1291, 
 
 1292, 
 1767 
 
 V. Howell, 807 
 V. Kingham, 561: 
 
 Chambers v. Leversage, 1669 
 
 — V. Minchiu, 1730, 1731, 1732 
 
 — V. The Queen's Proctor, 20, 21, 
 
 29, 92 
 
 — V. Smith, 1759 
 Chamncy, In the goods of, 84 
 Champion, Ex parte, 1709 
 Champneyr. Davy, 913. 920, 1320 
 Chancellor, Ee, 1248, 1252 
 Chancey's case, 1164, 1166 
 Chandler v. Thompson, SOI 
 Chandos, Duke of, v. Talbot, 1119, 1121 
 Channels. Ditchburn, 1839 
 Channon v. Patch, 622 
 
 Chanter, In the goods of, 382, 447 
 Chapman's Trusts, Ee, 1450, 1455 
 Chapman, Ee, 1807 
 
 — V. Brown, 913, 925 
 
 — V. Chapman, 992. 993, 1045,1046 
 
 — V. Dalton, 767, 768, 769, 1519 
 
 — V. Day, 783 
 
 — V. Esgar, 1549 
 
 — V. Hart, 1041, 1190 
 
 — V. Mason, 1778, 1910 
 
 — V. Reynolds, 1052 
 
 — V. Rothwell, 706 
 
 — V. Turner, 888, 894 
 Chappell V. Chappell, 354 
 Chappie, Ee, 1762, 1942 
 Charge v. Goodyer, 965 
 
 Charitable Donations, Commissioners of, 
 V. Devereux, 1395, 1501 
 — V. Wybrants, 1927 
 Chariest". Burke, 1323 
 
 — V. Jones, 1938 
 
 Charlton^. Att.-Gen., 1447, 1448, 1450 
 
 — r. Coombes, 1743 
 
 — V. Durham, 816 
 
 — — V. Hindmarsh, 428 
 
 — V. Low, 1694, 1896, 1897 
 
 — V. West, 1163, 1166 
 
 — V. Wright, 1532 
 
 Charter v. Charter, 312, 1011, 1012, 1013, 
 
 1014 
 Chaston, Ee, 1082, 1090, 1091 
 Chatfield v. Berchtoldt, 1422, 1501, 1541 
 Chatteris v. Young, 1083, 1162, 1512 
 Chauncey v. Graydon, 772, 1146 
 Chaworth v. Beech, 1030 
 
 — V. Hooper, 1293 
 Checkley v. Checkley, 739 
 Cheese v. Lovejoy, 115 
 
 Chflsea Waterworks, Governors of, v 
 
 Cowper, 1206, 1857 
 Chennell, Ee, 1941 
 Cherry?;. Boultbee, 993, 1172, 1173 
 
 — V. Mott, 924 
 Chesham, Ee, 1307, 1311 
 ('heshire Banking Co., Ee, 1629 
 Chester's, Lady, ca.se, 331 
 Chester v. Chester, 1344 
 
 — V. Urwick, 109, 1171 
 Chesterfield's Trusts, Ee, 1249, 1251
 
 xlvi 
 
 INDEX OF CASES. 
 
 Clievalior r. Finnis. 1797 
 Chovaux r. Aislabif, 1096 
 Chevuev r. Sinitli, 1'234 
 Chichester r. Bickorstatl', 583 
 
 — V. Coventry, 1167, 1168, 1196 
 Chilcot V. Bromley, 1007 
 
 Child r. Gibh'tt, 1127 
 
 — r. Gibson. 1752 
 
 — r. Tliorley, 803 
 Childs r. iMonins. 1671 
 Chinery, He, 1077 
 Chipehase r. Simpson, 978 
 Chip]iendale v. Thurston, 1839 
 Chissuni r. Dewes, 887 
 Chittenden r. Knight, 363 
 Chohneley r. Cholmeley, 679 
 Cholmonileley, He, 1412, 1482 
 
 — V. Lord Aslibnrton, 983 
 
 Cholwill, In the goods of, 385 
 Christian, In the goods of, 82 
 
 — r. Devereux, 539, 1147, 1924 
 Christie v. Gosling, 638 
 
 Christmas, Se, 908 
 
 _ V. AVhinyates, 114, 122 
 Christophers r. "White, 1761 
 Christopherson r. Xaylor, 1076, 1077 
 Christ's Hospital r. Budgin, 669 
 Christy v. Courtenay, 1549 
 Church Building Society v. Barlow, 916 
 Church r. Kenible, 1305 
 Chm-chill, Me, 893 
 
 — v. Bank of England, 721 
 
 — r. Ik'rtrand, 1665 
 
 — V. Hobson, 1720,1728,1731,1740 
 Churchman r. Ireland, 1308 
 
 Cigala's Settlement. Be, 1446 
 Clabburn, He, 1937 
 Clack r. Carion, 1943 
 
 — r. Holland, 1702 
 Clancy, He, 912, 914 
 Clapton V. Bulmer, 988 
 Clare r. Clare, 1939 
 
 — V. Hedges. 433,438 
 Clarendon (Lord) r. Barbara, 1566 
 Clarges v. Albemarle, 679 
 Clark's Estate, He, 1323 
 
 — Tnist, He, 921, 1138 
 
 — In the goods of, 72, 265 
 
 — He, 899 
 
 — r. Browne, 1186 
 
 — r. Burgh, 611 
 
 — r. Clark, 807, 1748 
 
 — r. Hooper, 1787 
 
 — V. Ross. 1120 
 
 — r. Sewell, 1164, 1287 
 Clarke, In the goods of, 65, 298 
 
 — He, 729, 1275 
 
 — V. Berkeley, 1143, 114"5 
 
 — V. Bickers, 1615, 1622 
 
 — V. Burgoine, 1194 
 
 — r. Butler, 1035 
 
 — V. Clarke. 942, 944 
 
 — r. Colls, 953 
 
 Clarke r. Crofts, 783 
 
 — V. Franklin, 587 
 _ V. Gould, 1058 
 
 — V. Hayne, 988 
 
 — V. Hougham, 763, 766, 1707 
 
 — V. Lear, 22 
 
 — V. Lord Ormonde, 639, 1303, 1802 
 
 — r. Barker, 1142, 1143, 1146 
 
 — V. Scripps, 111, 116, 121 
 
 — v. Taylor, 924 
 Clarkington, In the goods of, 383 
 Clarkson v. Clarkson, 125 
 
 — V. Waterhouse, 313 
 Clavering v. Ellison, 1123, 1129 
 
 . — V. Yorke, 687 
 Clay V. Pennington, 973 
 
 — & Tetley, He, 575, 577, 1695 
 
 — V. Willis, 579, 1548, 1549 
 Clayton, In the goods of, 386 
 
 — V. Greshara, 1804 
 
 — r. Low, 1331 
 
 — r. Nugent (Lord), 1013, 1015 
 Cleare r. Cleare, 282, 288, 289, 312 
 Cleaver v. Spurling, 1139 
 
 Clegg r. Rowland, 1207, 1822, 1918 
 Cleland v. Cleland, 753 
 Clement v. Cheesman, 687 
 Clements v. Hall, 573 
 Clementson v. Gandv, 1305, 1306 
 Clennell r. Lewthwaite, 1347, 1348 
 Cleoburey v. Beckett, 154 
 Clerk r. Withers, 780 
 Gierke v. Gierke, 385 
 Clerkson v. Bowyer, 602 
 Cleverley v. Brett, 1857 
 Cleverly v. Gladdish, 458 
 Cliffs trusts. He, 482, Jdd. 
 Clifford V. Arundell, 1045 
 
 — r. Beaumont, 1140, 1146 
 Clifton v. Burt, 1211, 1224, 1588, 1592 
 
 — V. Good bun, 957, 958 
 Climie r. Wood, 642 
 Cline's Estate, He, 732 
 Clinton's Trusts, He, 938 
 Clive V. Clive, 1285, 1303, 1649 
 Clobeny r. Lampen, 1254 
 Clogstoun V. Walcott, 132 
 
 Clough V. Bond, 1708, 1709, 1723. 1743 
 
 — V. Wynne, 1058 
 Clowes, He, Add. 
 
 — V. Clowes, 1324 
 
 Cloyne, Bishop of, v. Young, 1348, 1349 
 
 Clufifu Clufi", 910 
 
 Clutterbuck v. Clutterbuck, 1582 
 
 — r. Edwards. 1114 
 
 Coales, He, 1500 
 Coates V. Coates, 1171 
 
 — V. Hart, 937 
 Cobb r. Carpenter, 1604 
 Cobbett V. Glutton, 795 
 Cobham v. Dalton, 1899 
 Cochrane v. Robinson, 1204 
 Cock V. Cooke, 94, 95, 96
 
 INDEX OF CASES. 
 
 xlvii 
 
 Cock V. Cross, 1181 
 Cockayne, In the goods of, 131 
 
 — V. Harrison, 1253 
 Cockburn v. Raphael, 1768 
 Cockcroft, He, 1573, 1575, 1643 
 Cocke V. Jenner, 1537, 1696 
 Cockerell v. Barber, 1150, 1297 
 Cockerill v. Kynaston, 760 
 Cocking V. Pratt, 1357 
 Cockraft i'. Eawles, 40 
 Cockran v. Cockran, 1024, 1252 
 Cockroft V. Black, 889 
 Cocksedge v. Cocksedge, 1129 
 Cogan V. Stephens, 585 
 
 Coghill V. Freelove, 1630, 1631, 1633 
 
 Coghlan v. Coghlan, 22 
 
 Cogswell V. Armstrong, 1319 
 
 Cohen v. Waley, 1138 
 
 Colberg, In the goods of, 118 
 
 Colborne v. AV right, 414 
 
 Cole V. Fitzgerald, 1045, 1048, 1050 
 
 — V. Miles, 817, 819, 1230 
 
 — r. Muddle, 806 
 
 — r. Rea, 379 
 
 — V. Scott, 175, 179, 1024, 1299, 1302 
 
 — V. Wade, 829, 939, 981 
 
 — V. Willard, 1163, 1166 
 Colebeck v. Feck, 777, 860 
 Coleby r. Coleby, 1572, 1681 
 Colegrave v. Dias Santos, 649 
 
 — V. Manby, 1192, 1657 
 Coleman, In the goods of, 116 
 
 — Ee, 1081 
 
 — V. Coleman, 1030 
 Coles's Will, Ec, 1510 
 
 Coles, In the goods of, 94, 96, 381 
 
 — V. Coles, 287 
 
 — i\ Haden, 781 
 
 — V. Trecothick, 66 
 Colgan, Ee, 1271 
 Collen V. AVright, 1603 
 Colleton V. Garth, 1190, 1361 
 Collett, In the goods of, 190 
 
 — r. Collett, 1144, 1146 
 
 — V. Lawrence, 939 
 Colley's Trusts, Ee, 1081, 1339 
 Collier, In the goods of, 437 
 
 — V. Rivaz, 304, 1387 
 
 — V. Squire, 1045 
 Colling, Ee, 1646 
 
 Collingwood v. Pace, 359, 984, 1381 
 
 — V. Stanhope, 947, 948, 950 
 
 Collins, In the goods of, 317 
 
 — Ee, 1270, 1271 
 
 — V. Carey, 1761 
 
 — V. Collins, 1039, 1054, 1252 
 
 — V. Crouch, 872, 1640 
 
 — V. Doyle, 1064 
 
 — V. Elstone, Add. 
 
 — V. Lewis, 1589 
 
 — V. Macpherson, 1087 
 
 — V. Martin, 1042 
 
 Collinson v. Lister, 806, 1690, 1724, 1897 
 
 Collinson v. Pater, 909 
 
 Collis V. Blackburn, 1268, 1273 
 
 — V. Robins, 1578, 1579, 1582, 1814 
 Collison, Ee, 1091 
 
 — V. Curling, 1029 
 
 — V. Girling, 1070 
 Colman, Ex parte, 1898 
 
 — In the goods of, SO 
 Coison's Trusts, Ee, 1255 
 Colston V. Morris, 1 242 
 Colverson •?). Bloomfiehl, 1931, 1933 
 Colvile V. Middleton, 1583 
 
 Colvin V. Eraser, 133, 134, 135, 314, 430. 
 
 498, 499 
 
 — V. Procurator-General, 1073 
 Colyer, In the goods of, 94 
 
 — V. Finch, 577 
 Combe's case, 33, 813 
 Combe v. Hughes, 947 
 Comber's case, 250 
 Comfort V. Brown, 967 
 Compton, Ec, 886, 891 
 
 — V. Bloxham, 483, 1147, 1150 
 
 — V. Collinson, 59 
 
 — V. Sale, 1163 
 Concha v. Concha, 465, 476 
 
 — V. Murrieta, 1879 
 Conduitt V. Soane, 1253 
 Congreve v. Congreve, 943 
 
 — V. Palmer, 1386 
 Counop V. Hayward, 1893 
 Connor v. Martin, 739 
 Conron v. Conron, 1033, 1584 
 Consett V. Bell, 622, 1917 
 Constable v. Bull, 1131 
 
 — V. Constable, 731 
 
 — V. Tufnell, 34, 39, 40 
 Constantine v. Constantine, 934 
 Conway v. Fenton, 1825 
 Conyers v. Kitson, 354 
 
 Goode, In the goods of, 300, 366 
 Cook V. Bolton, 1915 
 
 — V. CoUingi-idge, 1748, 1815 
 
 — r. Dawson, 576 
 
 — V. Gregson, 853, 854, 1548 
 
 — V. Lambert, 69 
 
 — V. Martyn, 1895 
 
 — V. Whitley, 956 
 
 Cooke, In the goods of, 121, 319, 384 
 
 — V. Bowler, 1058 
 
 — V. Colcraft, 1597 
 
 — V. Crawford, 830 
 
 — V. Dealey, 585 
 
 — u Farrand, 1303 
 
 — V. Fuller, 1276 
 
 — V. Mirehouse, 936 
 
 — V. Stationers' Co., 923 
 
 — V. Turner, 1138, 1739 
 
 — V. Wagster, 1052, 1054 
 Cookson V. Bingham, 1327, 1947 
 Coombe v. Trist, 1478 
 
 Coombs, In the goods of, 68, 259, 378 
 
 — V. Coombs, 378, 895
 
 xlviii 
 
 INDEX OF CASES. 
 
 Coope V. Cresswell, 1554, 1555, 1556, 1557, 
 
 1S39 
 Cooper's Trusts, He, 5S7 
 Cooper, In tlui gooils of, 4'', 159 
 
 — & Allen's Contract, Re, 1457 
 
 — r. Bookett, 7rt, 77, 79, 93, 102 
 
 — . v. Coopor, 1109, 1305, 1310, 1331 
 
 — V. Day, 116-2, 1511 
 
 — V. Dehison, 985, 988 
 
 — t'. Douglas, 1709 
 
 — r. Jarnmn, 1598 
 
 — V. Johnson, 782 
 
 — V. Macdonald, 348, 1195 
 _ V. Mantell, 1155, 1192 
 
 — V. Pitcher, 1313 
 
 — r. Simmons, 723, 1650 
 
 _ V. Thornton, 991, 1261, 1262, 1263 
 
 — V. Vesev, 806 
 
 — V. Wooititt, 627 
 
 — V. Worniald, 666 
 
 — r. AVyatt, 1131 
 Coore V. Todd, 1224 
 
 Coote r. Boyd, 1155, 1157, 1159 
 
 — r. Coote, 1578, 1582 
 
 — r. Wluttington,216, 1912,1914, 1915 
 Cope, In the goods of, 83, 458 
 
 — F.e, 423, 434, 1937 
 
 — V. Cope, 1562 
 Copeland v. Simister, Add. 
 
 — r. Stephens, 1659 
 Copley I'. Copley, 1167 
 Coppard, He, 943 
 
 — V. Allen, 1913, 1914 
 Coppin V. Coppin, 1219, 1312 
 
 — V. Dillon, 131, 363, 460 
 
 — V. Femyhough, 173 
 
 — V. Potter, 738 
 Corbett's Trusts, Ee, 1334 
 Corbvn v. French, 913, 993, 1074 
 Cord\'. Cord, 1801 
 
 Cordcr, lie, 72 
 
 Cordeux v. Trasler, 363 
 
 Cordwell's Estate, lie, 1171, 1278, 1846 
 
 Corlass, Be, 97 i 
 
 Cormack, In the goods of, 459 
 
 — V. Co pons, 947 
 Corneby v. Gibbons, 72 
 Corneck v. Wadman. 1330, 1331 
 Corner v. Shew, 1663, 1666, 1674, 1678, 
 
 1679, 1681 
 Comewall v. Cornewall, 1564 
 Cornfield v. Wyndham, 1062 
 Cornwall, Solicitor of Duchy of, r. Cann- 
 ing, 372, 458 
 
 — V. Cornwall, 1050 
 Comwallis, He, 638, 1139 
 
 — (Earl), Re, 1413 
 Corporation of Clergymen's Sons v. Swain- 
 son, 1894 
 
 Corrie's AVill, Re, 974, 975, 1079, 1162 
 CorselUs, Re, 1763, 1943 
 Corser, JEx parte, 857 
 
 — V. Cartwright, 577, 578 
 
 Cortr. AVinder, 1081 
 Corven's case, 635, 639 
 Coryton v. Lithebv, 1663, 1774 
 Cosnahan, In the goods of, 301, 306, 384 
 
 — V. Grice, 681 
 Costeker v. Horrox, 1883 
 Coswall V. Morgan, 445 
 Cother v. Merrick, 725 
 Cotteen v. Missing, 1658 
 Cottle V. Aldrich, 215 
 Cotton, Re, 1267. 1324 
 
 — V. Cotton, 996, 1001 
 
 — V. lies, 603 
 Cottrell's Estate, Re, 1274 
 
 — r. Cottrell, 141 
 
 — V. Hughes, 1543 
 Couch V. Stratton, 1364 
 Coulter's case, 217, 220, 222. 502 
 Coulthart 1'. Clementson, 1660 
 Coulthurst V. Carter, 1078 
 Court V. Buckland, 586 
 Courtenay v. Williams, 1171, 1172 
 Courtney v. Ferrers, 1302 
 Courtoy v. Vincent, 1509 
 Cousins, Fie, 573 
 
 — V. Paddon, 1847, 1862 
 
 — V. Schroder, 1105 
 Coussmaker v. Chamberlayne, 402, 403 
 Covell, In the goods of, 494 
 Coventry v. Chichester", 1167 
 
 — V. Coventry, 851, 941, 1255, 
 
 1565, 1583 
 
 — V. Higgins, 1290 
 
 — V. Williams, 96 
 Coward, In the goods of, 59 
 
 — -;;. Gregorv, 1601, 1872 
 Cowell V. Watts, 569, 763, 765 
 
 — V. Gatcombe, 1728 
 Cowley (Earl), Re, 1462 
 Cowling V. Cowling, 1053 
 Cowper V. Fletcher, 827 
 Cox's Trusts, Re, 729 
 Cox, Re, 913, 922 
 
 — Sir Charles, The creditors of, 1548 
 
 — V. Allingham, 1793 
 
 — V. Barnard, 870, 1658 
 
 — V. Bennett, 177, 1319 
 
 — V. Brown, 811 
 
 — V. Cox, 1249, 1250 
 
 — V. Dolman, 1927 
 
 — V. Godsalve, 628, 1051 
 
 — V. Joseph, 874 
 
 — V. Peacock, 1863 
 Crabb v. Crabb, 1305 
 Crabtree v. Bramble, 580 
 
 Crackelt v. Bethune, 1295, 1296, 1758 
 Cradocki;. Owen, 1342, 1346 
 
 — V. Piper, 1585, 1760, 1761, 1762, 
 
 1763, 1764, 1942, 1943 
 Craig V. Lester, 45 
 
 Craigie v. Lewin, 302, 1395, 1397, 1400 
 Craignish, Re, Add 
 Craik v. Lamb, 977, 9S2
 
 INDEX OF CASES. 
 
 xlix 
 
 Crallan v. Oulton, 1923 
 Cramer's case, 591 
 Cramp v. Playfoot, 925 
 Cranley v. Hale, 1345 
 Craumer's case, 615, 1163 
 Cransvvick v. Pearson, 1329 
 Crause, In tlie goods of, 351 
 
 — V. Cooper, 1079 
 Crawford's Trusts, Be, 993, 999 
 Crawford v. Forshaw, 235 
 
 — V. Trotter, 947, 967, 968, 971 
 
 — V. Whittal, 766 
 Crawhall's Trusts, Ee, 952, 1082, 1330 
 Crawshaw, Ee, la25, 1826 
 
 — V. Crawshaw, 1324 
 Crawshay, In the goods of, Add. 
 
 — V. Collins, 1521, 1745 
 Cray v. AVillis, 1230 
 
 Creed v. Creed 1021, 1022, 1032, 1033, 
 1220, 1223. 1224 
 — V. Perry, 744 
 Cremorne v. Antrobus, 1049 
 Cresswell, Be, 638 
 
 — V. Cheslyn, 1080 
 
 — V. Cresswell, 402, 898, 1157 
 Creswick v. Gaskoll, 1138 
 
 Crichton v. Symes, 1040 
 Cricketti;. Dolby, 1254, 1269, 1287, 1290, 
 
 1292 
 Cringan, In the goods of, 195 
 Cripps V. Wolcott, 1329, 1330, 1331 
 Crispin v. Doglioni, 279, 302, 306, 307, 
 
 940 
 Critchell v. Critchell, 313 
 Critchett v. Taynton, 943 
 Crockat v. Crockat, 1022 
 Crockett v. Crockett, 947, 977, 990. 
 Croft, Re, Add. 
 
 — V. Croft, 77, 78, 93 
 
 — V. Lyndsey, 1704 
 
 — V. Pyke, 251, 891 
 Crofts, In the goods of, 54 
 Croggan v. Allen, 1949 
 Croker v. Hertford, 88, 112 
 Croly V. Weld, 1212 
 Cromek v. Lumb, 1102, 1334 
 Crommelin v. Crommelin, 1145 
 Crompton v. Sale, 1197 
 Crone v. Odell, 932, 941, 943 
 Crook V. Hill, 953, 957, 958 
 
 — V. Whit-ley, 962 
 Crooke v. Brookeing, 952 
 
 — r. De Vandes, 978, 1326 
 Crookenden v. Fuller, 308, 1392, 1^95 
 Cropper v. Knapman, 1918 
 
 Crosbie v. McDoual, 7, 166, 171 
 (Jrosby v. Geeriug, 1868 
 Crosley, In the goods of, 164 
 (^rosman's case, 1178 
 Cross V. Cross, 314 
 — V. Miltby, 937 
 Crosse v. Cocke, 893 
 
 — V. Smith, 1535, 1704, 1733 
 
 W.E. — VOL. I. 
 
 Crossfield v. Such, 553, 570 
 Crosskey v. Mills, 502 
 Crosskill v. Bower, 1749 
 Crossley v. City of Glasgow Assurance Co., 
 
 1S80 
 Crossly v. Clare, 941, 976 
 Grossman v. The Queen, 519 
 Crosthwaite v. Dean, 147 
 Crow V. Robinson, 1413 
 Crowder v. Clowes, 1512 
 
 — V. Stewart, 885, 889, 891 
 
 — V. Stone, 744, 1082, 1334 
 Crowe V. Crisford, 1039, 1252 
 
 — V. Russell, 1910 
 Crowley v. Chipp, 458 
 Croxton v. May, 1279, 1281 
 Cruikshank ti Roberts, 1545 
 Crump, In the goods of, 443 
 Cruse V. Barley, 1094 
 Crusoe v. Bugby, 809 
 Cruwys v. Colman, 981, 989 
 Cubbidge v. Boatwriglit, 790, 806 
 Cubbon, In the goods of, 58, 182, 323, 
 
 327 
 Cuddon V. Cuddon, 1466 
 Culling V. Tuffnall, 641 
 Cumberland's (Couutess of) case, 622 
 Gumming v. Fraser, 464 
 Cummins v. Curnmins, 1691 
 Cunlitfe v. Cross, 288 
 Cunningham, Ex parte, Mitchell, Re, 139S 
 
 — V. Foot, 1923, 1927 
 
 — V. Ross, 1190, 1191 
 
 — V. Seymour, 261 
 Cuno, Re, 56, 664 " 
 
 Curlewis f. Lord Morniugton, 1790, 1S4-5 
 Curling v. Thornton, 303, 1399 
 Curnick v. Tucker, 990 
 Curre v. Bowyer, 582, 1645, 1911 
 Currey, In the goods of, 386, 449, 450 
 Currie v. Bircham, 369 
 
 — V. Gould, 1329 
 
 — V. Pye, 1158, 1159 
 Curry V. Pile, 1156 
 Cursham v. Newland, 973 
 Curteis v. Wormald, 585 
 Curtis V. Blow, 1894 
 
 — V. Curtis, 317, 942 
 
 — V. Fulbrook, 575, 576 
 
 — V. Hunt, 1855 
 
 — V. Hutton, 915, 921 
 
 — V. Lukin, 1255 
 
 — V. Price, 666 
 
 — V. Vernon, 218, 219, 220, 555 
 Curtius V. Caledonian Fire Insurance Co., 
 
 1880 
 Gust V. Goring, 696 
 Custance v. Bradshaw, 547, 548, 549 
 Cutbush V. Cutbush, 1688 
 Cuthbert v. Furrier, 1131, 1284 
 Cutler, Re, 1277 
 
 Cuttov, Gilbert, 138, 139, 142, 143, 144, 
 
 171
 
 INDEX OF CASES. 
 
 D. 
 
 Da Costa v. De Pas, 902, 901 
 Da Cuiiha (Countess), In the goods of, 
 306, 365, 388, 420 
 Da Sih-a, In the goods of, 159, 168 
 D'Aguil ir r. Diinkwater, 1145 
 Dabbs v. Cliisman, 280, 281, 362, 378, 
 
 382, 499 
 Dacrc v. Patricksou, 1344, 1345, 1572, 
 
 1576 
 Dadds, In the goods of. 120, 320 
 Dauy V. Hartridge, 1032, 1565 
 Da^ie}' i'. Tolfori-y, 1261, 1262 
 Daiiitree v. Fasulo, 74, 76, 77, 92 
 Dakin v. Cope, 1689 
 Dalby, Jic, 1874 
 
 Dalhousier. jM'Douall, 1393, 1398 
 Dallow, In the goods of, 70, 87, 89, 90 
 Dalryniple v. Hall, 953 
 Daltou V. Midland Counties Railway Com- 
 pany, 739 
 
 — r. South Eastern Railway Coni- 
 
 imnj', 704 
 Daly's Settlement, Ee, 1398 
 Dalzell V. Welch, 932, 974 
 Dampier v. Colson, 401 
 Dancer v. Crabb, 130 
 Dando v. Dando, 1882 
 Daniel, In the goods of, 87 
 
 — V. Dudley, 994, 997, 1003, 
 
 — V. Warren, 1039, 1252 
 Dan-ell v. Daniell, 1017 
 Darby v. Darby, 588 
 
 Darke, In the goods of, 184 
 
 — V. Martyn, 1721 
 Darkin v. Darkin, 668 
 Darley v. Darley, 1271 
 
 — v. Martin, 930 
 
 — V. Nicholson, 1933 
 Darling, In the goods of, 390 
 
 — V. Loveland, 103 
 Darlington, Lord, v. Pulteney, 8 
 Darlow v. Edwards, 1009 
 Darrant v. Field, 953 
 Darston v. Lord Oxford, SS2 
 Dar-hez v. Winter, 1878 
 Dashwood ■;;. Bulkeley, 1144, 1145 
 Davall V. New River Company, 720 
 Davenport v. Coltman, 587 
 
 — V. Hanbury, 974, 1386 • 
 
 — V. Moss, 887 
 
 — V. Stafford, 1750, 1927 
 Davenport's Trust, 1015, 1016 
 
 Davers v. Dewes, 1325, 1347, 1367, 1368 
 David, Me, 908 
 
 — V. Frowd, 1208, 1209, 1315, 1919 
 Davidson, He, 580 
 
 V. Dallas, 941, 1111 
 
 — V. Kimpton, 1334 
 Davie v. Beardsham, 581 
 Davies' Trusts, Me. 1322 
 
 — Will, Me, 1385 
 
 Davies, In the goods of, 77, 355 
 
 — Me, 1904, 1921, Add. 
 
 — (William), Me, 1807 
 
 — V. Ashford, 1575 
 
 — V. Austen, 1264 
 
 — V. Baily, 982 
 
 — V. Brecknell, 246 
 
 — V. Bush, 1219 
 
 — V. Churchman, 1561 
 
 — V. Davies, 134, 1606, 1917, 1918 
 
 — V. Fisher, 1096,1097,1100,1110,1111 
 
 — V. Fowler, 1024, 1027 
 
 — V. Gregory, 312 
 
 — V. Hodgson, 1739 
 
 — V. Huguenin, 947, 951 
 
 — V. Lowndes, 1788, 1845 
 
 — V. Monkhouse, 880 
 
 — r. Morgan, 1031 
 
 — V. Nicolson, 1202, 1209, 1314 
 
 — V. Queen's Proctor, 201, 321 
 
 — V. Kevnolds, 311 
 
 — ^■. Thorne, 1330 
 
 — V. Wattier, 1259 
 
 — V. Williams, 1804 
 
 Davis, In the goods of, 77, 84, 192 
 
 — Me, 1924, 1925, 1941 
 
 — V. Andrews, 780 
 
 — V, Angel, 1132 
 
 — V. Blackwell, 1206 
 
 — V. Chanter. 447, 449 
 
 — V. Davis, 226, 1312 
 
 — V. Dendy, 1768 
 
 — V. Eyton, 630 
 
 — V. Gardiner, 1563 
 
 — V. Jenkins, 903 
 
 — ■;;. Jones, 646 
 
 — to Jones, 574 
 
 — V. Powell, 618 
 — • V. Reyner, 1670 
 
 — V. Salter, 1875 
 
 — V. Sj)Ufling, 1727, 1733 
 
 — V. Topp, 1592 
 
 — V. Williams, 1795 
 
 — V. Wright, 1670 
 Davy V. Pepys, 1561 
 Davys t'. Boucher, 1197 
 Dawes, In the goods of, 428 
 
 — V. Scott, 1577 
 Dawkins v. Tatham, 1507 
 Dawley v. Ballfrey, 1261 
 Dawson r. Bourne, 947, 977 
 
 — V. Clark, 1345, 1343 
 
 — V. Dawson, 958, 1167, 1195 
 
 — V. Hearn, 1062 
 
 — V. Kearston, 870 
 
 — V. Killett, 1120 
 
 — V. Massey, 1750 
 
 — r. Oliver- Massev, 1143 
 
 — V. Small, 921, 925, 967 
 
 — V. Thorne, 1347 
 Day, In the goods of, 203 
 
 — V. Chatfield, 205 
 
 — V. Croft, 7, 1162
 
 IXDEX OF CASES. 
 
 Day V. Day, 937, 1062, 1649 
 
 — 11, Pargrave, 739 
 
 — V. Radclilie, 1115 
 
 — V. Smith, 80 
 
 — V. Thompson, 381 
 Dean v. Allen, 1204 
 
 — V. Crane, 1786 
 
 — V. Dalton, 1345 
 
 — V. Davidson, 264 
 
 — V. Gibson, 1046, 1048 
 
 — V. Russell, 311 
 Deane v. Test, 1027 
 Deardsley v. Fleming, 45 
 
 De Beaufort, In the goods of, Add. 
 De Beauvoir v. De Beauvoir, 9li7, 970, 971 
 Debenhani v. Mellon, 1656 
 Debeze v. Mann, 1199 
 De Blaquiere v. Blaquiere, 735 
 De Bode, In the goods of, 130 
 De Bonnevalw. Bonueval, 1393, 1394, 1395 
 De Chatelain v. Pontigny, 430 
 De Cordova v. De Cordova, 807, 815, 828, 
 1724, 1748, 1751 
 De Cosse Brissac v. Rathbone, 1392 
 Deeksu Striitt, 243, 1670, 1828, 1952. 
 Deering v. Torrington, 1542 
 Defflis V. Goldschinidt, 939, 944 
 De Fogassieras v. Dupont, 1388 
 Deg V. Deg, 1897 
 De Garasnol v. Liardet, 1334 
 D'Huart'v. Harkness, 308 
 Deichman, In the goods of, 197 
 Deighton's Settled Estates, Ee, 941 
 De la Farqne, In the goods of, 458 
 De la Garde v. Lempriere, 1281, 1282 
 De Lancey, Re, 547, 580, 1447, 1465, 
 
 1491 
 — V. The Queen, 1422 
 
 De la Rue, In the goods of, 301 
 De la Saussaye, lu the goods of, 7, 166, 
 
 171, 300 
 De la Viesca v. Lubbock, 376 
 De Lisle v. Hodges, 1033, 1214 
 De Mazer v. Pybus, 1346 
 Dembyn v. Brown, 741 
 De Mora v. Concha, 1879 
 Dempsey v. Lawson, 139, 143 
 Denby, Re, 1150 
 Dench v. Dench 113, 294 
 Denne v. Judge, 822 
 Dennis, In the goods of, 168 
 Denny v. Barton, 141 
 Dent V. Allcroft, 915 
 — V. I'epys, 938 
 Denton v. Davy, 1765 
 
 — V. Lord John Manners, 912 
 Depit V. Delerieleuse, 381 
 De Pradel, In the goods of, 323 
 De Reclibergw, Bceton, 1447, 1458 
 De Roehefort v. Davvcs, 1572 
 De Rosaz, In the goods of, 198, 1014 
 Desbody n. Boyville, 1145 
 Descrarabes V. Tomkins, 1268, 1292, 1291 
 
 Des Hais, In the goods of, 293 
 De Tastet v. Andrade, 1863 
 
 — V. Shaw, 889 
 
 De Themmines v. Bonneville, 902, 904 
 De TrafFonl v. Tempest, 1325 
 Devaynes v. Noble, 1063, 1618 
 
 — V. liobinson, 1613 
 Devese r. Pontet, 1164 
 
 De Visme, Re, 1200 
 Devisme v. Mellish, 980 
 
 — V. Mello, 943 
 
 Devon, Duke of, v. Atkius, 1224 
 
 Dew V. Clark, 23, 28 
 
 De Wall's, Count, case, 1398 
 
 Dewar -y. Brooke, 1101 
 
 Dewdney, Ex parte, 1700 
 
 Dewell, Re, 377 
 
 De Witte v. De Witte, 941, 947, 977 
 
 — V. Palin, 1271 
 
 De Zicliy Ferraris v. Lord Hertford, 87, 89. 
 112, 170, 302 
 Dias V. De Livera, 942, 961, 1327 
 Dick, Re, 1710, 1713 
 — V. Lacy, 972, 978 
 Dicken v. Clarke, 1136 
 Dickenson v. Lord Holland, 1922 
 
 — V. Naul, 502 
 Dickin v. Edwards, 1033, 1583 
 Dickinson, In the goods of, 353 
 
 — Re, 1811 
 
 — V. Blisset, 13 
 
 — V. Moss, 39 
 
 — - V. North Eastern Railway, 704 
 
 — V. Stidolph, 87, 90, 131, 142, 
 
 164 
 ^ V. Svvatman, 130, 131, 153 
 
 — V. Teasdale, 1923, 1927 
 Dicks -y. Lambert, 1056, 1317 
 Dickson, In the goods of, 272 
 
 — Re, 1266, 1267, 1291, 1820 
 Dickson's Trust, Re, 1138 
 
 Digby, Ex parte, 1566 
 
 — V. Boycatt, 1241 
 
 — V. Legard, 1192 
 Diggles, Re, 93 
 
 Dilkes, In the goods of, 68, 71 
 
 — V. Broadmead, 801, 1314, 1560 
 Dilley v. Matthews, 956 
 
 Dillon, Re, 688 
 
 — V. Coppin, 1372, 1374, 1658 
 
 — V. Harris, 87 
 
 — V. Parker, 1304, 1305, 1306, 1307, 
 
 1310 
 Dilner v. Leech, 1002 
 Dimes v. Dimes, 23 
 
 — V. Scott, 1243, 1244, 1245, 1715 
 Dimond v. Bostock, 1081 
 
 Dimsdale v. Duddiiig, 1893 
 Dingwell v. Askew, 1188 
 Dinning ■z'. Henderson, 1560 
 Dinsdale v. Dudding, 1927 
 Disney v. Crosse, 1022 
 Divcnny v. Carcoran, 300 
 
 d 2
 
 Hi 
 
 INDEX OF CASES. 
 
 Dixr.Burfunl, 12:31. 1703, 1727, 1735,1927 
 
 — r. Kecii, 1149 
 Diiou, hi tlie goods of, 970 
 
 — TiV, G62, 961, 1:^27, 1149 
 
 — V. Alliiisoii, 279 
 
 — r. Ihitler, 920 
 
 — 1'. Dawson, 587 
 
 — r. Dixon, 1284 
 
 — r. Gayfere, 580 
 Dobbs V. Brain, ^-Idd. 
 Dobson, In the goods of, 158 
 
 — r. Carpenter, V.iOi 
 Docterr. Somes, 1753, 1758 
 Dodds V. Tuke, 1940 
 Dodge V. Meech, 313 
 Dodgson, In the goods of, 444, 446 
 Dodgsou's Trusts, Ji'c, 938, 1091 
 Dodson r. Sannnell, 1204 
 Dodswell v. Earle, 74G 
 Doe r. Aldridge, 903, 918, 922 
 
 — V. Bennett, 1057 
 
 — V. Bevan, 809, 810 
 
 — V. Biggs, 934 
 
 — V. Birkhead, 1082 
 
 — r. Calvert, 477 
 
 — r. Cliichestcr, 1305 
 
 — V. Child, 933 
 
 — r. Clarke, 942 
 
 — r. Copestake, 903, 918, 923 
 
 — r. Cranstoun, 929 
 
 — V. Cross, 94, 96 
 
 — V. Davies, 91, 934 
 
 — r. Davy, 164 
 
 — r. Evans, 86, 148, 164, 540 
 
 — r. Ewart, 933 
 
 — r. Fallows, 805 
 
 — V. Featherstone, 931 
 
 — V. Fleniming, 991 
 
 — V. Gallini, 931 
 
 — V. Glenn, 343 
 
 — V. GoflF, 931 
 
 — r. Guy, 1231, 1232, 1312, 1S29 
 
 — V. Harris, 116, 922, 1229 
 
 — r. Harvey, 931, 932 
 
 — r. Haslewood, 929 
 
 — r. Hawthorn, 901, 902, 919 
 
 — V. Hicks, 154, 167 
 
 — r. Hiscocks, 1013, 1015 
 
 — r. Hole, 165 
 
 — V. Hughes, 576 
 
 — V. Jorse}', 178 
 
 — V. Jesson, 264, 931 
 
 — V. Lawson. 988 
 
 — V. Lj'de, 599 
 
 — V. Mabberley, 1228 
 
 — V. Manifokl, 80 
 
 — V. JIarchant, 164 
 
 — r. Micklem, 935 
 
 — V. Mills, 900 
 
 — V. Moore, 1112 
 
 — V. Nepean, 264 
 
 — V. Newel], 1112 
 
 — V Palmer, 112, 113, 294, 295 
 
 Doc V. Perkes, 118 
 
 — V. Perratt, 930 
 
 — V. Pitcher, 920, 922 
 
 — r. Polgrean, 613 
 
 — r. Porter, 599, 600, GC9, 762 
 
 — V. Pratt, 929 
 
 — r. Prigg, 1331 
 
 — V. liawding, 934 
 
 — r. Reade, 932 
 
 — r. Rouse, 1015 
 
 — V. Royle, 1329 
 
 — V. Scott, 1134 
 
 — V. Shipphard, 1136 
 
 — V. Shotter, 574 
 
 — V. Smith, 933 
 
 — V. Strickland, 133 
 
 — d. Strickland r. Eoe, 1832 
 
 — V. Sturges, 1233, 1234, 1235 
 
 — r. Tatchell, 1235, 1237 
 
 — T. Tofield, 929 
 
 — r. Tardill, 1388 
 
 — r. Walker, 164, 165, 169 
 
 — v. Ward, 1112, 1113 
 
 — V. Waterton, 907 
 
 — r. Westlake, 1013 
 — • V. Wheeler, 1777 
 
 — r. Wood, 533, 600 
 
 — V. Wright, 933 
 
 — V. Wriglite, 922 
 
 Doglioni v. Crispin, 940, 1387, 1391 
 
 Dolan V. Macdermot, 924 
 
 DoUen v. Batt, 597, 725 
 
 DoUoud V. Johnson, 861 
 
 Dolman r. Smith, 1577, 1579, 1580 
 
 Dolphin V. Robins, 1398 
 
 Dommett r. Bedford, 1131 
 
 Domvile v. Winnington, 948, 949 
 
 Donaldson, In the goods of, 105, 138 
 
 Donegal's, Lord, case, 38 
 
 Donn V. Penny, 598, 967, 971 
 
 Donne v. Hart, 60S 
 
 Donovan v. Needham, 1291 
 
 Doo V. Brabant, 1084, 1085, 1136 
 
 Doody V. Higgins, 969 
 
 Door v. Geary, 1067 
 
 Doran v. Simpson, 1916 
 
 Dorchester r. Webb, 235, 827, 1177, 1182 
 
 Dorin v. Dorin, 953 
 
 Dormer v. Burnett, 1299 
 
 Dormoy, In the goods of, 366 
 
 Dornfurd v. Doriiford, 1296, 1702 
 
 Dornforth v. Dornforth, 1751 
 
 Dorvillc V. Wolff, 1330 
 
 Dost Ali Khan, In tlie goods of, 306 
 
 Doucet V. Geoghegan, 1395 
 
 Douglas, lie, 918 
 
 — V. Andrews, 1082 
 
 — ■!•. Chalmer, 1127 
 
 — r. Congreve, 931, 1053. 1243, 
 
 1244, 1245, 1507, 1513 
 
 — V. Cooper, 51 
 
 — r. Dotiglas, 176, 179, 1301, 1302, 
 
 1395
 
 INDEX OF CASES. 
 
 liii 
 
 Douglas ^7. Fellows, 1011 
 
 — V. Forrest, 1!25, li.".;, 1841, 1812 
 Dove V. Everaid, 1737 
 
 Dover v. Alexander, 9u7 
 
 — V. Gregory, 1153 
 Dowbiggin v. Harrison, 777 
 Dowdale's case, 1524, 1525 
 Dowdeswell V. Dowdeswell, 448, 1912,1915 
 Dowding v. Sniitb, 1385 
 
 Dowleyi^. AVinlield, 12S4 
 Dowling's Trust, lie, 112(J 
 Dowling V. Tyrrell, 1287 
 Down V. Worrall, 830, 923 
 ©owne V. Morris, 1560 
 Downes v. Bullock, 983, 985 
 
 — V. Power, 806, 1897 
 Downing V. Townsend, 1052, 1299 
 Downs V. Collins, 1520, 1683 
 Downward v. Dickinson, 381 
 Dowse V. Coxe, 1661, 1666 
 
 — V. Gorton, 1684, 1772, 1815, 1816, 
 
 1817, 1901, 1902 
 
 — V. Percival, 1544 
 Dowset v. Sweet, 1080 
 Dowson V. Gaskoin, 1053, 1317 
 
 Doyle V. Blake, 225, 228, 1698, 1708, 1736, 
 
 17a 
 
 Doyley v. Tolferry, 1264 
 iJrage v. Hartopp, 1776 
 Drake t'. Att. -Gen., 550 
 
 — V. Drake, 1U12 
 
 — V. Martin, 1023, 1011 
 
 — V. Muiulaj', 725 
 Drakeford v. Drakefurd, 1081, 1330 
 Draper v. Hitch, 292 
 
 Drewry v. Thacker, 1802, 1862, 1893, 
 
 1911 
 Drinkwater, In the goods of, 385 
 
 — V. Falconer, 1027, 1030, 1137 
 Driver v. Ferrand. 1582 
 
 — V. Frank, 948 
 Drohan v. Drohan, 808 
 Drover V. Beyer, 1930, 1933 
 
 Druce v. Denison, 96, 611, 612, 753, 
 
 1361 
 Drue V. Baylie, 569, 790, 801 
 Drummond, In the goods of, 87, 327 
 
 — V. Parish, 104 
 Drury r. Smith, 684, 691 
 Drybutter ■;;. Bartholomew, 720 
 Dryden v. Foster, 1908, ]91ii 
 Duane, In the goods of, 293, 315 
 Duberley v. Day, 60S 
 
 Dubois V. Trant, 496 
 Duckworth v. Johnson, 704, 705 
 Dudley v. Warde, 640, 645, 648, 652 
 Dufaurt). Croft, 100, 289, 290 
 Dutf, In the goods of, 87 
 Duff's Plxecutors' case, 1629 
 DuHield v. Elwes, 164, 681 
 
 V. Hicks, 687 
 Duffort i;. Arrowsmith, 1908 
 Duffy's Trust, lie, 1283 
 
 Dufour V. Pereira, 107, 109 
 Dugdale, He, 1129, 1130 
 
 — V. Dugdale, 1385, 1589 
 
 — V. Meadows, 1470 
 Duggan V. Kelly, 1140 
 
 Du Hourraelin v. Sheldon, 174, ISl 
 Duke, lie, 936, 1089, 1104 
 
 — V. Doidge, 950 
 
 Dulwich College r. Johnson, 257, 1877 
 
 Dumble, F.e, 1267 
 
 Dummer 1'. Pitcher, 1024, 1305 
 
 Dumpor's case, 726 
 
 Dunboyne v. Brander, 1223 
 
 Duncan v. Cashin, 668 
 
 — v. Duncan, 1030, 1162 
 V. Lawson, 1388 
 
 — V. Watts, 1220 
 Duncombe v. Greenacre, 1278, 1279 
 Dundas, In the goods of, 87 
 
 — V. Dutens, 666 
 
 — V. Wolfe Murray, 1104, 1291 
 Dundee (Magistrates ofj t\ Morris, 925 
 Dungannon v. Smith, 1116 
 
 Dunk V. Fenner, 931, 967, 968, 1583 
 Dunkley v. Dunkley, 1278 
 Dunn, In the goods of, 35 1 
 
 — V. Bownas, 912, 913, 915 
 
 — V. Dunn, 168, 247 
 Dupleix V. De Roven, 860 
 Duppa -y. Mayo, 141, 157, 161, 174, 
 
 727, 
 1225 
 
 Duprez v. Veret, 307 
 Durance, In the goods of, 154 
 Diirant v. Prestwood, 1382 
 Durham, Lord, v. AVhartoii, 1195, 1197 
 Durkin v. Johnstone, 328 
 Durnell v. Corfield, 288, 2S;» 
 Durour v. Motteux, 919, ; 22 
 Durrant v. Friend, 1183 
 Dutton, In the goods of, 131 
 
 — r. Crowdy, 1082 
 
 — V. Tayley, 1594 
 Dye V. Dye, 46 
 
 Dyer v. Kearsley, 1911 
 Dyke, In the goods ot, 1G7 
 
 — V. Walford, 236, 340, 370 
 Dyose r. Dj'ose, 1215, 1216 
 Dyson v. Morris, 1878 
 
 Eagles v. Le Breton, 987 
 E.igleton !•. Kingston, 1717 
 Fames v. Hacon, 369, 376, 854, 1389, 
 1526, 1530 
 Earl, In the good.s of, 305, 306, 385 
 Earle, In the goods of, 455, 459 
 
 — V. Bellingharn, 1290 
 
 — V. Hinton, 1849 
 
 — V. Wilson, 958 
 Earle's Trust, lie, 164 
 
 Early v. Benbow, 7, 942, 1513
 
 liv 
 
 INDEX OF CASES. 
 
 Early r. MiiUUoton, 942 
 Eastr. East, 1702, 1710 
 Easton r. Carter, 25;') 
 Eastwood V. Lockwood, 938 
 
 — V. Yiiikc, 1104 
 
 Easum r. Applelonl, lOSO, l:V;0, 1321, 
 y.i-1'2, 1^24 
 Eatou V. Barker, 1120, 1330 
 
 — r. Jacqiies, 1635 
 
 — r. Saiixter, 581 
 
 — r. Sniitli, 825 
 
 — V. AVatts, 98 
 Eaves v. Hickson, 1701 
 Eavestatl'r. Austin. 1224 
 Eccard r. Brook, 036, 978 
 Eccles, In the goods of, 385 
 
 — V. Cheyiic, 1086 
 Ecclesiastical Commissioners v. ]*sortli 
 
 Eastern Railway Co., 1929 
 Eccleston v. Clipsham, 1775 
 Eckersley v. Piatt, 130, 135 
 Eddelsr. Johnson, 1012 
 Eddowcs r. Eddowes, 944 
 Eden r. Smyth, 1170 
 Edgar r. Reynolds, 377 
 Edington's trnst, lie, 987 
 Edmonds, Ex parte, 1682, 1900 
 
 ~ V. Peake, 1721 
 Edmondson's Estate, Re, 937, 1122 
 Edmunds v. Bird, 432 
 
 — V. Cox, 782 
 
 — r. Ees&cj', 95C, 057 
 
 — r. Low, 1160 
 
 — v. Wangh, 1068, 1928 
 Edrich's case, 798 
 
 Edwards r. Bates, 1830 
 
 — r. Edwaids, 838, 870, 887, ^75, 
 
 1126, 1885 
 
 — r. Freeman, 1352, 1369, 1370, 
 
 1371, 1373, 1376, 1565 
 
 — r. Grace, 763, 1689 
 
 — r. Hall, £09, 910, 912, 914, 915, 
 
 1022 
 
 — r. Hammond, 1112 
 
 — V. Harhen, 211 
 
 — r. J ones, 682, 683, 1329 
 
 — r. Lowndes, 1830 
 
 — r. Saloway, 1075 
 
 — r. Tuck, 585 
 
 — '/•. "Warwick (Countess of), 582 
 Eedesr. Eedes, 1280 
 
 Eeles. In the goods of, 130 
 
 — ' ^•. Lambert, 872, 1203 
 Egbert r. Butter, 1734 
 Egerton v. Lord Brownlow, 1123, 1129 
 Egg r. Devey, 1123 
 Eggington's Trusts, Re, 1331 
 Ekin.s' Tru.st.s, Re, 669 
 Eland v. Eland, 806 
 Eldenr. Keddell, 1794, 1795 
 Elderton, In the goods of, 376 
 Eldridge v. Burgess, 778 
 
 Elibank (Lady) v. Montolieu, 753, 1175, 
 1277, 1279- 
 Ellcock V. Mapp, 1345 
 Ellice, In the goods of, 132 
 
 — V. Goodson, 448 
 Elliott V. Bishop, 642 
 
 — V. Collier, 755, 1358, 1375 
 
 — r. Davenport, 1073, 1074, 1226 
 _ V. Dearsley. 1574, 1584 
 
 — r. Elliott, 943, 944, 1051, 1227, 
 
 1229, 1230' 
 
 — r. Gnrr, 347, 348 
 
 — V. Hoi well, 1894 
 
 — V. Kemp, 253, 556, 567, 569, 573, 
 
 78 
 r. Merriman, 806 
 
 — r. Smith, 1125 
 Ellis, In the goods of, 80 
 
 — '€. Bowen, 1662 
 
 — V. Eden, 1055 
 
 — r. Ellis, 1269, 1292 
 
 — V. Griffith, 1797 
 
 — r. Guavas, 602 
 
 — r. Houstoun, 954, 957 
 
 — T. Selby, 923, 924 
 
 — r. Smith, 74, 78 
 
 — r. AYalker, 1022, 1030 
 Ellison, Ex parte, 720 
 
 — r. Airey, 943 
 - — r. Elwin, 744 
 
 — r. Thomas, 951 
 Elme V. Da Costa, 378, 382 
 Elms V. Elms, 120 
 
 Elm.sley r. Young, 984, 985, 988 
 Elton V. Eason, 966 
 
 — r. Elton, 1096 
 
 — V. Shejipard, 1058 
 Elwell V. Quiish, 817, 1834, 1835 
 Elwes, Re, 1462 
 
 — r. Causton, 1033, 1214, 1224 
 
 — V. Elwes, 362 
 
 — V. Jlaw, 640, 641, 643, 645, 65.% 
 
 654, 655, 657 
 Elwin r. Elwin, 1090 
 Ehvood V. Christy, 250 
 Elworthy r. Sandford, 221, 222 
 Emanuel v. Constable, 898 
 Embrey r. ilartin, 1120 
 Emerson r. Emerson, 698, 700, 701 
 Emertcn v. Emerton, 489 
 Emery r. England, 950 
 Emery's Estate, Re, 942, 1019 
 Enies\". Hancock. 1120 
 Emmet's Estate, Re, 943 
 Emmius v. Bradford, 953 
 Emperor a\ Rolfe, 1114 
 Empson v. Soden, 625 
 Emuss r. Smith, 178 
 England, Re, 1264, 1275 
 
 — v. Tredegar, 12U4 
 English, In the goods of, 95, ^91 
 
 — V. Ord, 915 
 Eno r. Tatham, 1571
 
 INDEX OF CASES. 
 
 Iv 
 
 Enohin v. Wylie, 297, 301, 302, 305, 
 306, 307, 368, 'J40, 1387, 1389, 
 1390, 1391 
 Errat v. Barlow, 1270 
 Errington u Chapman, 1294 
 
 — V. Evans, 1179 
 Erskine's Trust, Ec, 127S 
 Ervingr. Peters, 1847, 1866, 1867 
 Escot, In the goods of, 385 
 Essington v. Vashon, 1064 
 Etheridge v. Wormsley, 1803 
 Eton Coll. V. Beauchainp, 1594 
 Eustace, In the goods of, 152 
 Eustou (Earl of), v. Seymour, 105 
 Evans, In the goods of, 428 
 
 — Jie, 1481,1488,1518,1682,1816,1901 
 
 — (Evan), lie, 1886, 1887 
 
 — V. Brown, 1560, 1592 
 
 — V. Burrell, 367 
 
 — V. Charles, 1002, 1366 
 
 — V. Davies, 956, 957 
 
 — V. Evans, 1082, 1331, 1332, 1582 
 
 — V. Harris, 944 
 
 — V. Jackson, 809 
 
 — V. Jones, 259, 974, 1320, 13S0 
 
 — V. Knight, 22 
 
 — r. Massey, 958 
 
 — V. Koberts, 623, 624, 625 
 
 — V. Rosser, 1141 
 
 — V. Scott, 1115, 1120 
 
 — V. Tripp, 1020 
 
 — V. Tweedy, 1923 
 
 — V. Tyler, 188, 442 
 
 — V. Walker, 1059, 1060 
 
 — V. Williams, 863 
 
 — V. Wyatt, 1573 
 Evelyn, Ex parte, 442 
 
 — V. Evelyn, 361, 1381, 1566, 1567, 
 
 1568 
 Everall v. Browne, 1048 
 Everett v. Everett, 175 
 Everley, In the goods of, Add. 
 Ewen V. Franklin, 86 
 Ewer V. Corbet, 802 
 Ewin, Re, 544, 1388, 1496, 1500, 1501 
 Ewing, In the goods of, 299, 400, 403, 
 418, 419, 542 
 
 — V. Orr-Ewing, 369, 1389. 1390, 
 
 1391, 1527, 1528 
 Exel V. Wallace, 1105 
 Exmouth, Re, 638, 1124, 1129 
 Explorer, The, 703 
 Evnon, In the goods of, 83 
 Eyre r. Cox, 1806, 1907 
 
 — V. Marsden, 937, 1082. 1946 
 
 — V. Lady Shaftsbury, 411 
 
 F. 
 
 Faircloxtgh v. Marshal], 1777 
 Fairer v. Park, 1034, 1165 
 Fairfax (Lord) v. Lord Derby, 798 
 
 Fairfield v. Busliell, 975 
 Fairland v. Percy, 1 682 
 Fairweather, In the goods of, 386 
 Falkner v. Butler, 962, 1320 
 
 — V. Grace, 1583 
 Fane v. Fane, 1949 
 Faraday, In the goods of, 349 
 Farhall v. Farhall, 1664, 1900 
 Faidey v. Briant. 1554 
 Farman, Re, 1658, 1903 
 Farmer v. Francis, 1089, 1113 
 
 — V. Mills, 1213, 1215 
 Farnham I'. Phillips, 1196 
 Farquhar, In the goods of, 106 
 
 — V. Haddon, 1647 
 Farquliarson v. Cave, 685, 1481 
 
 — V. Floyer, 1589 
 
 Farr r. Newman, 558, 559, 560, 561, 564, 
 801, 805, 1866 
 — V. Penrce, 1521 
 Farrands, In the goods of, 384, 386 
 Farrant r. Nichols, 975 
 Farrar v. Barraclough, 1705 
 Farrell v. Brownbill, 386 
 Farrer r. llarker, 1114, 1115 
 
 — v. St. Catharine's College, 96, 167, 
 
 171, 1011, 1013, 1515 
 
 — r. Winterton, 582, 1193, 1645 
 Farrington v. Knightly, 182, 1346 
 Farrow v. Austin, 1944 
 
 — V. Wilson, 697 
 Farwell v. Seale, 1506 
 Paulding's Trust, Re, 1078 
 Faulds V. Jackson, 77, 79 
 Faulkner v. Daniel, 448 
 
 Faversham (Mayor of) v. Ryder, 915, 918 
 Fawcett, In the goods of, 428 
 
 — v. Jones, 288, 292 
 Fawkener v. Jordan, 192, 402, 418 
 Fawkes V. Gray, 1241 
 
 Fawtry v. Fawtry, 353 
 Fazakerley V. GilUbrand, 1167 
 Fearns r. 'Young, 1242, 1248, 1815 
 Fearnside v. Flint, 1925 
 Fearon, Ex parte, 473 
 Featherstone's Trusts, 7^*% 1081 
 Featherstonhaugh v. Fenwick, 1521 
 FellT. Biddolph, 1081 
 
 — V. Lutwidge, 342, 1936 
 Fellows V. Thornton, 1798 
 Felthara's Trust, 1011, 1012 
 Feltham v. Feltham, 1254 
 Fidtom's Executors' Case, 1600 
 Fendall v. May, 781 
 
 Fenn v. Death. 952 
 
 Fenner v. Taylor, 1281 
 
 Fenton, In the goods of, 233, 445, 449 
 
 — V. Clegg, 251, 1233, 1238 
 
 — r. Wills, 1591, 1948 
 Fenwick, In tlie goods of. 138, 160 
 
 — V. Clarke, 1314, 1721 
 
 — v. Thornton, 179(5 
 Fernyos v. Robertson, 1577
 
 Ivi 
 
 INDEX OF CASES. 
 
 Ferguson v. Gikson. SSO, 803, ir)58 
 
 — r. Mahoii, 861 
 Fergiisoii-Davie r. Fcrgusoii-Davie, P5, 96 
 Fcrnaudes' Executors' case, 542, 1530 
 E'eriiamliv, In the goods of, 459 
 Fcrnie, In the goods of, 184 
 Ferrand r. Prentice, 1256 
 Ferrers v. Ferrers, 1290 
 Ferrey v. King, 282, 312 
 Ferrier, In the goods of, 493, 497 
 Ferris r. Goodburn, 1169 
 Festingr. Allen, 1101, n09, 1112,1113, 
 1290, 1292 
 — V. Taylor, 1508 
 Fettyplacc r. Gorges, 53, 347 
 Field i: iloore, 1565 
 
 — r. Mostin, 1166 
 
 — V. Peckett, 1048, 1070, 1698, 1759 
 Fieldeu v. Ashworth, 980, 1002 
 Fielder r. Hanger, 353, 413 
 
 Fielding r. Preston, 1037, 1221, 1224 
 Finch's (Sir iloyle) case, 424 
 Finch, Re, 1658 
 
 — V. Finch, 135, 615, 1167 
 
 — V. Hattersley, 578 
 
 — V. Hollingworth, 981 
 
 — V. Lane 1113 
 
 — V. Shaw, 1585 
 
 — V. Squire, 908, 910 
 Fincliam v. Edwards, 14 
 Findlav, In the goods of, 385 
 Finlason v. Tatlock, 969 
 Finlay v. Chirney, 709, 1597 
 Finney v. Grice, 1049 
 
 Finsbury Savings Bank, &c., Trustees of, 
 
 Ex parte, 1887 
 Finucane r. Gayfere, 276 
 Fischer v. Popham, 75, 78 
 Fish V. Richardson, 1669 
 Fisheri;. Brierley, 1162, 1288, 1512 
 
 — V. Dixon, 645, 653 
 
 — V. Fisher, 315, 1576, 1591 
 
 — V. Forbes, 631 
 
 — V. Hepburn, 1048 
 Fisk V. Att.Gen.. 924, 295 
 Fitch V. "Weber, 584 
 Fittock, In the goods of, 366 
 Fitzgerald i'. I>oehm, 787 
 
 — V. Field, 1050, 1115, 1579 
 Fitzherbert v. Shaw, 646 
 Fitzrov, In the goods of, 160 
 
 — " V. Howard, 1518, 1538, 1540 
 
 — r. Piichmond, 1081 
 Fitzsimons v. Fitzsimons, 1305 
 Fitzwilliam r. Kdlv, 1035, 1647 
 Flack i: Holm, 1933 
 Flamank, £v parte, 591 
 Flanders v. Clarke, 821 
 
 Fleck, Jle, 1574 
 Fleet V. Holmes, 843 
 
 — V. Perrins, 740, 756 
 
 Fleetwood, lie, 329, 330, 331, 1047, 1350, 
 
 1351 
 
 Fleming r. P.ronk, 1041. 1042, 1043 
 
 — r. Buchanan, 1550, 1558, 1592 
 
 — V. Burrows, 1046, 1317 
 
 — V. Fleming, 1013 
 
 — V. Pelham, 354 
 Flemings v. Jarrat, 214 
 
 Fletcher, Me, 1163, 1166, 1199, 1200 
 
 — V. Ashburner, 579 
 
 — V. Rodgers, 1801 
 
 — V. Stevenson. 12C4 
 
 — V. Walker, 1721 
 Flinn v. Jenkins, 1386 
 
 — r. Perkins, 777 
 Flint V. Warren, 584 
 Flockton V. Bunning, 1744 
 Flood V. Patterson, 1827, 1915 
 riorance v. Florance, 45 
 Flower, Ee, 1251 
 
 Find V. Rnmcey, 1179 
 Foden v. Finney, 1277 
 Foley V. Brogan, 282 
 
 — - V. Burnell, 938, 1253 
 
 — r. Hill, 1922 
 
 — r. Percival, 581 
 Foljambe r. Willoughby, 1273 
 Folkes V. Docminique, 457 
 FoUett V. Pettman, 7, 167, 171 
 Fonereau v. Fonereau, 1098 
 
 — V. Poyntz, 1212, 1215 
 Fontaine r. Tyler, 1020, 1028 
 Foord V. Ponirov, 742 
 
 Forbes v. Ball, 981 
 
 — r. Forbes, 830, 1393, 1394, 1595, 
 
 1397, 1398 
 
 — V. Gordon, 157 
 
 — V. Lawrence, 115G 
 
 — V. Moffat, 604 
 
 — V. Peacock, 575, 576, 825 
 
 — r. Phipps, 758 
 
 — V. Ross, 1708, 1750, 1752, 1754 
 
 — V. Smith, 1791 
 
 — r. Steven, 548 
 Ford V. Batley, 1062 
 
 — V. De Pontes, 154, 1193 
 ■ — V. Fleming, 1031 
 
 — V. Ford, 934 
 
 — r. Rawlins, 1096 
 
 — V. Ruxton, 1510 
 
 — V. Tynte, 619 
 Forest, In the goods of, 316 
 Forfar v. Heastie, 288 
 Forrest f. Prescott, 1576, 1582 
 Forrester v. Leigh, 1032 
 Forsbrook v. Forsbrook, 931 
 Forse and Hembling's case, 107 
 Forsight v. Grant, 1164 
 Forster v. Forster, 286 
 
 Forth V. Chapman, 933, 967 
 
 — V. Stanton, 1666, 1672 
 Fosbrooke v. Balgny, 1518, 1749 
 Foster, In the goods of, 197 
 
 — V. Banbury, 898 
 
 — V. Bates, 553
 
 INDEX OF CASES. 
 
 Ivii 
 
 Foster V. Blakelock, 1855 
 
 — V. Claggett, 781 
 
 — V. Cook, 1134, 15S9 
 
 — V. f]vans, 1163 
 
 — V. Foster, 135, 319, 1893 
 
 — V. Handley, 1559 
 
 — V. Jacksou, 1835 
 
 — V. Ley, 1427, 1492, 1510 
 Fotherby v. Pate, 425 
 Fothergill v. Kendrick, 865 
 Foubeit t'. Cresseron, 98 
 Fourdrin v. Gowdey, 1165, 1583 
 Fowler v. Davies, 1805 
 
 — V. Fowler, 925, 1163, 1164, 1169 
 
 — V. Garlike, 924 
 
 — r. Roberts, 1863 
 
 — V. Willoughby, 1021, 1032 
 Fowler's Trusts, He, 1305 
 Fowlis V. Davidson, 28, 322 
 
 Fox V. Fisher, 559 
 
 — V. Fox, 1098, 1099, 1100, 1101, 1102, 
 
 1370 
 
 — V. Garrett, 892 
 
 — V. Hawks, 670 
 
 — V. Lownds, 916 
 
 — V. Waters, 1796 
 Foxwist V. Tremaine, 185, 762 
 Foxwith V. Tremaine, 190 
 Foy V. Foy, 917 
 
 Fozard, la the goods of, 455 
 Francis', Alice, case, 202 
 Francis v. Grover, 1927 
 Franco v. Alvares, 1930 
 Franklin's Charity, He, 1493, 1494 
 Frankliu v. Bank of England, 721 
 
 — V. Frith, 1709, 1750 
 
 — V. South Eastern Kail way Co., 
 
 704 
 Franks v. Cooper, 889, 890 
 Fraser, In the goods of, 110, 192, 301, 384 
 
 — V. Byng, 1158 
 
 — V. Palmer, 1761 
 
 — ■;;. Pigott, 955 
 
 — r. Swansea Canal Co., 761 
 
 — V. Thompson, 665 
 Frayne v. Taylor, 1645 
 
 Freake r. Cranefeldt, 1843, 1923, 1929 
 Freakley v. Fox, 1179 
 Fream v. Dowling, 1583 
 Frederick v. Hall, 96 
 
 — V. Hook, 427 
 
 Freeman v. Fairlie, 1147, 1884, 1885, 
 1887, 1890, 1891 
 
 — V. Freeman, 139, 142 
 
 — r. Lomas, 1174 
 
 — V. Parsley, 974 
 
 — V. Simpson, 1238 
 Freeman tie r. Taylor, 941 
 Freer, Jie, 590, 1188 
 Freke v. Lord Carbery, 1388 
 
 — V. Thomas, 422 
 Freme v. Clement, 1319 
 French v. Chichester, 1575 
 
 French v. French, 478, 947 
 Frere v. Peacocke, 30, 312 
 Frewen v. Frewen, 582 
 — V. Relfe, 1339 
 Friswell v. Moore, 460 
 Frith, In the goods of, 83 
 
 — V. Cameron, 1825 
 Frogley v. Phillips, 964 
 Frost 1). Frost, 1909 
 
 — V. Ward, 1909 
 Frowd V. Baker, 1908 
 Fruen v. Porter, 1634, 1833 
 Fruer v. Bouquet, 1346 
 Fry, In goods of, 190 
 
 — V. Fry, 1701, 1704, 1721, 1725 
 
 — V. Tapson, 1722 
 Fryer, Ee, 1891 
 
 — V. Gildridge, 1178, 11 SI 
 
 — u Morland, 1447, 144S, ] 15S 
 
 — V. Morri-s, 1030, 1185 
 
 — V. Eanken, 1052 
 Fulleck V. Allinson, 25 
 Fuller, In the goods of. Add. 
 
 — Re, 1831 
 
 — V. Green, 1948 
 
 — V. Hooper, 6 
 
 — V. Redman, 1700 
 
 Fulton V. Andrew, 99, 100, 283, 289, 294, 
 
 318 
 Fulwood's case, 597, 733 
 Further v. Further, 1849 
 Futter V. Jackson, 1885 
 Fyson v. Chambers, 221, 556, 57 
 
 — V. Westrope, 283 
 Fytchev. Fytche, 1309, 1311 
 
 G. 
 
 Gabb v. Prendergast, 956 
 Gadd, Re, 1899 
 Gaitskell's Trusts, Re, 10S4 
 Gale r. Bennett, 952 
 
 ^_ Gale 1193 
 
 — V. Lutt'rell, 812, 845, 1846, 1903 
 Galland v. Leonard, 1126 
 Gallant r. Boutetlower, 1778, 1784 
 Galliers v. Moss, 1056, 1057 
 Gallini v. Noble, 1052, 1067 
 Gallivan v. Evans, 431, 432, 1751 
 Gaily, In the goods of, 309 
 Galton V. Hancock, 1561, 1562, 1563 
 Gamboa's Trusts, Re, 969 
 Gann v. Gregory, 112, 273, 484 
 Gardener v. Fenner, 1669 
 Gardiner's Estate, Re, 944 
 Gardiner, In the goods of, 387, 418 
 
 — Re, 1809 
 
 — V. Courthope, 132 
 
 — V. Fell, 1307, 1524 
 
 — V. Parker, 682, 687 
 
 — V. Slater, 1109 
 Gardner, In the goods of, 319
 
 Iviii 
 
 INDEX OF CASES. 
 
 Gardner x\ Baillic, 167" 
 
 — V. B;irkor, lir)5 
 
 — V. Gaiiliier, 6lil 
 
 — r. Garrett, 1911 
 
 — V. Halton. 1030, 1185 
 
 — r. James, 942 
 
 — r. London, Cliatliam and Dover 
 
 Kail way, 911 
 Garforth v. Bradley, 738, 751, 753 
 Garland, Ex parte, 559, 1519, 1682, 1688, 
 1816, 1900 
 
 — r. Beverley, 1011 
 
 — V. Littlcwood, 1771 
 Garner t'. Garner, 1011 
 
 — V. Holmes, 119G 
 
 — V. Moore, 1724 
 Garuett, Jie, 1658 
 Garrard v. Garrard, 232, 399 
 Garratt v. Niblock, 960 
 
 Garrett 17. Lister, 1233, 1234, 1795 
 
 — V. Noble, 1690 
 
 Garrick v. Lord Camden, 983, 984 
 Garter v. Dee, 506, 1837 
 Garth v. Baldwyn, 599, 968 
 
 — V. Meyrick, 1012, 1156 
 Garthsbore v. Chalie, 10S7, 1240, 1361, 
 
 1362, 1363 
 Garvey r. Hibhert, 1017 
 Gasco^Tie r. Chandler, 236, 278 
 Gaskell v Gaskell, 1480 
 
 — V. Harman, 1090 
 
 — V. Holmes, 1085, 1331 
 
 — V. Marshall, 562 
 Gaskill V. Hough, 1582 
 
 Gaunt V. Taylor, 851. 1802, 1936 
 Gausden, In the goods of, 69 
 Gawler v. Standerwick, 474, 475, 1119, 
 1254, 1256 
 Gaynon v. AVood, 1163 
 Gaynor, In the goods of, 409 
 Gay re v. Gay re, 1034 
 Gaze V. Gaze, 72, 77 
 Geale, In the goods of, 13 
 Geaiy r. Beaumont, 1898 
 Geaves v. Price, 138, 140 
 Gedge v. Traill, 1917, 1918 
 Gee V. Mahood, 1212 
 Gellard's Trusts, He, 1806 
 Genery v. Fitzgerald, 1119, 1267 
 Gent, In the goods of, 454 
 Gentili, In the goods of, 1388 
 Gentry, In the goods of, 130 
 George III., In the goods of, 11, 12 
 George, Ee, 1267, 1269, 1292 
 
 — V. Milbanke, 1550, 1552 
 Georges v. Georges, 261 
 Gervis v. Gervis, 1504, 1589 
 
 — V. Hallewell, 490 
 Ghost V. Waller, 1720 
 Gibbinsi'. fLyden, 1565, 1571, 1588 
 
 — V. Tavlor, 1725 
 Gibblett t>. Head, 1520 
 Gibbon v. Gibbon, 1064 
 
 Gibbons v. Dawley, 1877 
 
 — V. Gibbons, 942 
 Gibbs V. Rumsey, 923 
 
 — V. Tait, 972, 978, 1330 
 Giblett V. Hobson, 913 
 Gibson, F^, 1081, 108-3, 1339 
 
 — r. Bott, 1242, 1243, 1246, 1248, 
 
 1287 
 
 — V. Fisher, 1385, 1386 
 
 — V. Hale, 978, 1325 
 
 — V. Lord Montford, 164 
 
 — V. Scudamore, 588 
 
 — f. Seagrim, 1585 
 Giddings -v. Giddings, 1518 
 Gilbert v. Boorman, 944 
 
 — V. Piatt, 1787 
 
 — V. Wetherell, 1375 
 Gilbertson v. Gilbertson, 1581 
 Gilchrist, Ex parte, 1551 
 Giles, Re, 1821, 1905 
 
 — r. Dyson, 1698, 1768, 1857 
 
 — V. Gi'les, 1015, 1077 
 
 — r. ilelsom, 1019 
 
 — V. "Warren, 118 
 
 Gill, In the goods of, 87, 88. 234, 350, 355, 
 400, 401, 414 
 
 — r. Att.-Gen., 1728 
 
 — V. Barratt, 987 
 
 — V. Shelley, 954, 956 
 Gillam v. Taylor, 918 
 Giliaume v. Adderley, 1026, 1028 
 Gillespie v. Alexander, 1158, 1208, 1209, 
 
 1313, 1314, 1315 
 Gillett V. Gane, 1011 
 Gilliat V. Gilliat, 331, 1055 
 Gillies V. Smither, 1851, 1857 
 Gilly V. Burley, 1248 
 Oilman v. Daunt, 944 
 Gilmore v. Severn, 942 
 Gimblett v. Purton, 944 
 Giiigell V. Home, 471 
 Giraud v. Hanburj-, 1345 
 Gittings V. M'Dermott, 933, 936, 967, 969, 
 
 971, 1076 
 Gittins V. Steele, 1315, 1582, 1583 
 Gladding v. Yapp, 1345, 1349 
 Gladdon r. Stoneman, 188 
 Gladstone, Re, 1904 
 
 — V. Tempest, 141 
 Glaholm r. Rowntree, 1523 
 Glaister v. Hewer. 669 
 Glanvill v. Glanvill, 1122, 1294 
 Glanville v. Glanville, 1018 
 Glass V. Oxenham, 1913 
 Gleadow v. Atkin, 827, 1708 
 
 — V. Leetham, 1508 
 Glen V. "Webster, 1952 
 Glendening v. Glendening, 1054 
 Glengall, Lord, v. Barnard, 1169 
 Gloucestershire Banking Co. v. Edwards, 
 
 1603 
 Glover, In the goods of, 66 
 
 — V. Barlow, 1825
 
 INDEX OF CASES. 
 
 lix 
 
 Glover V. Hartcup, 116G, IIGS 
 Glynn v. Oglander, 97 
 
 — V. Thorpe, 865 
 Goate V. Fryer, 883, 1911 
 Godard v. Gray, 1392 
 Goddard v. Cressonier, 365 
 
 — V. Goddard, 354 
 
 — V. Ingram, 1839 
 — ■ V. Norton, 278 
 
 — i\ Smith, 278 
 Godfrey, In the goods of, 381 
 
 — V. Davis, 944, 957 
 
 — V. Hughes, 1141 
 Godkin v. Murphy, 1327 
 Godsden v. Dotterill, 1509 
 Godson V. Good, 1615 
 Godwin r. ilundav, 1120 
 Gofife V. Haywood," 1229 
 Goldicutt 1). Townshend, 666 
 Goldie V. Greaves, 975 
 
 — V. Murray, 313 
 Golding V. "Vaughan, 1774 
 Goldney v. Crabb, 973 
 Goldsborough, In the goods of, 377, 462 
 Goldsmid v. Goldsmid, 1146, 1363 
 Goldsmith v. Sidnor, 871, 874 
 Goldsworthy v. Crossley, 51, 328 
 
 — V. Southcott, 860 
 
 Gompertz v. Gompertz, 1155 
 Gooch V. Gooch, 942 
 Goodacre v. Smith, 100, 288 
 Goodall's case, 769 
 Goodchild v. Fenton, 1750 
 Goodenough, In the goods of, 167 
 
 — V. Tremamondo, 1039, 1252 
 
 Goodfellow V. Burchett, 1703 
 Goodladu Burnett, 176, 177, 179, 1023, 
 1067, 1301 
 Goodman's Trusts, Ec, 959, 1366, 1388,1454 
 Goodman v. Edwards, 929 
 Goodrich v. Jones, 431 
 Goodright v. Glazier, 152 
 
 — V. Harwood, 141 
 Goodtitle v. Meredith, 164 
 Goodwin's Trusts, He, 954, 957 
 Goodwin v. Finlayson, 1082 
 
 — V. Lee, 1563 
 Goodyar, In the goods of, 1047 
 Gorbell v. Davison, 988 
 Gordon, In the goods of, Add. 
 
 — Ee, 580 
 
 — V. Bowden, 1259, 170!) 
 
 — V. Calvert, 1596 
 
 — V. Duif, 1024 
 
 — V. Gordon, 928, 958, 059, 1070 
 
 — V. Hoffman, 1156 
 
 — V. Keay, 7, 166 
 
 — V. Trail, 1769 
 
 — - ?;. Whieldon, 947 
 Gore V. Gibson, 35 
 
 — V. Knight, 668 
 Goring V. Goring, 1670, 1696 
 Gornail v. Mason, 287 
 
 Gorton, Ec, 1901 
 
 — V. Dyson, 1830, 1875 
 
 — V. Gregory, 1859 
 Gosden v. Dotterill, 1052 
 Gosling, In the goods of, 110, 154 
 
 — V. Carter, 575 
 
 — V. Gosling, 1255 
 Goss, Re, 1944 
 
 Gotch V. Foster, 1268 
 Gott r. Nairne, 1255 
 Gough V. Bult, 1154, 1927 
 
 — V. Findon, 1481 
 
 — V. Gough, 632 
 
 — V. Howarde, 1229 
 Goulburn v. Brooks, 1120 
 Gould V. Fleetwood, 1760 
 
 — V. Kemp, 1339, 1340 
 
 — V. Lakes, 291, 318 
 Gout V. Zimmerman, 1398 
 Gouthwaite's case, 1627 
 Gove V. Gawen, 92 
 Gover u Davis, 1046 
 
 Governesses' Benevolent Institution' v. 
 Rushbridger, 1258. 
 Gowan v. Broughton, 1591, 1948 
 Gower v. Gower, 1045 
 Gowlinjj V. Thompson, 1076 
 Grabowski's Settlement, Re, 1250 
 Gradell v. Tyson, 1794 
 Gratltey v. Humpage, 993, 998 
 Graham, In the goods of, 52, 138, 140 
 
 — V. Graham, 1163, 1691, 1815 
 
 — V. Kcble, 1738 
 
 — V. Londonderry, 668, 674, 676, 
 
 677, 678, 679, 680, 94d 
 
 — V. Maxwell, 1911 
 
 — V. Paternoster, 915 
 Grainger v. Slingsby, 1055 
 Granard v. Dunkin, 1799 
 Grandison v. Dover, 492 
 Grant, In the goods of, 435 
 
 — V. Dver, 1144 
 
 — V. Grant, 429, 668, 670, 963 
 
 — V. Leslie, 190, 195 
 
 — V. Lvnam, 981, 989 
 Grantham v. Hawley, 629 
 Granville v. Beaufort, 1346 
 
 — V. M'Neile, 235, 823 
 Granwell r. Silby, 1835 
 Gratrix v. Chambers, 1221 
 Gratwick's Trusts, Re, 1324 
 Grave i'. Salisbury, 1194, 1200 
 Gravener v. Parker, 597 
 Graves v. Boyle, 944 
 
 — V. Griffith, 1931 
 
 — r. Hicks, 1566 
 
 — V. Hughes, 1186 
 
 — V. Weld, 624, 625 
 Gray, Re, 1025, 1187 
 
 — V. Garman, 1124, 1137 
 
 — V. Minnethorpe, 934, 1579, 1580 
 
 — V. Siggers, 1039, 1252, 1719 
 Grayburn V. Clarkson, 1C13, 1717
 
 Jx 
 
 INDEX OF CASES. 
 
 Gravilon v. Hicks, 1144, 1345 
 Graysbrook v. Fox, 222, 250, 253, 400, 
 
 501 
 Created v. Greato.l, 936, 1131 
 Greaves, In the goods of, 87 
 
 — Jie, 1915, 1922, 1930 
 Green's Estate, y.V, 1084, 1134 
 
 — Settlement, Y.V, 1073 
 Green, Ex parte, 1264, 1274 
 
 — Be, 1205 
 
 — V. Belcher, 1269 
 
 — V. Britten, 1039, 1245, 1252 
 
 — V. Cole, 1605 
 
 — V. Croft, 1410 
 
 — r. Dunn, 1319 
 
 — V. Green, 1144 
 
 — V. Harvev, 1129, 1131 
 
 — r. Howard, 980 
 
 — r. Jackson, 586 
 
 — V. Lord Listowell, 1636 
 
 — V. Otte, 1276, 1283 
 
 — r. Pert wee, 1325 
 
 — V. Pigot, 1119, 1256, 1257, 1258 
 
 — V. Salmon, 1681 
 
 — V. Skipworth, 39 
 
 — V. Smith, 581, 1644 
 
 — V. Symonds, 1034, 1041, 1190 
 
 — V. Tribe, 7, lf«, 171 
 Greene v. Greene, 15&i, 1582 
 CTreenhalgh v. Bates, 937, 1122 
 Greening v. Barker, 1288 
 Greenough v. Martin, 145, 166, 171, 291 
 Greenway r. Greenway, 936, 978 
 Greenwell v. Greenwell, 1273 
 Greenwood's Trusts, Be, 1327 
 
 — Will, Ec, 984, 988 
 
 — Case, 24 
 Greenwood, In the goods of, 71, 125 
 
 — iJe, 1218, 1219 
 
 — V. Greenwood, 1156 
 
 — V. Penny, 1311 
 
 — V. Taylor, 1587 
 Greer v. Pertwee, 1325 
 Greet r. Greet, 1104, 1255 
 Gregory v. Hariuan, 1829 
 
 — V. Lockyer, 1655 
 
 — V. The Queen's Proctor, 73, 85, 90 
 
 — V. Smith, 989 
 
 — V. AVilliams, 1668 
 Gregson, Ee, 1781, 1846 
 Gregson's P'state, I!c, 1331 
 Greig, In the goods of, 131, 132 
 
 — r. Somerville, 1210 
 Greisley v. Lord Chesterfield, 1247 
 Grettou r. Haward, 1311 
 Greville v. Tylee, 113 
 
 Grey's Trusts, ifc, 1388 
 Grey v. Pearson, 937 
 Grice V. Shaw, 603 
 Grieve v. Grieve, 946 
 Grieves v. Case, 915, 918 
 
 — V. Rawley, 963 
 Griffin v. Ashley, 1841 
 
 Grifiin v. Ferrard, 96 
 Grillith, In the goods of, 140 
 
 — y.V, 729, 731 
 
 — V. Hughes, 1740 
 
 — V. Morrison, 1243 
 
 — r. Porter, 1725 
 
 — V. Ricketts, 584 
 
 — V. Sheffield, 1668 
 Griffiths, He, 1495, 1940 
 
 — V. Anthony, 848 
 
 — V. Bennett, 846 
 
 — V. Evan, 989 
 
 — V. Gale, 1086 
 
 — V. Griffiths, 84, 93 
 
 — V. Hamilton, 464, 1340, 1345, 
 
 1346, 1347 
 
 — V. Porter, 1739 
 
 — V. Pruen, 1147 
 
 — V. Rogers, 1347 
 
 — V. Smith, 1241 
 Grimmett r. Grimmett, 915 
 Grimshaw's Trusts, Be, 1101, 1102 
 Grimstead v. Shirley, 760 
 
 Grim wood v. Cozens, 131 
 Griudall v. Grindall, 294 
 Grissell v. Swinhoe, 1310 
 Groom v. Thomas, 15, 25 
 Grove, Ee, 959, 
 Grove's Trasts, Be, 1099, 1100 
 Groves's Trust, He, 1059 
 Groves, Be, 1278 
 ~ r. Clarke, 1281 
 
 — V. Levi, 1879 
 
 — V. Perkins, 1281 
 
 — V. "Wright, 1x53 
 Grundy, In the goods of, 353, 385 
 Gryll's Trusts, Be, 984, 995, 1002 
 Grymes v. Boweren, 654, 657, 659 
 Guardhouse v. Blackburne, 293, 316 
 Gude V. Mumford, 1507, 1509 
 Guest V. "Willasey, 164 
 
 GuUan, In the goods of, 118 
 Gulliver v. Wickett, 1134 
 Gummoe v. Howes, 932 
 Gundry r. Pinniger, 986, 987 
 Gunn, In the goods of, 188, 271, 327, 331, 
 
 550, 580 
 Gunter v. Gunter, 1544 
 Gurly V. Gurly, 1361 
 Gurney, Be, Add. 
 
 — v. Gurne)', 899 
 Guthrie v. Walrond, 1041, 1310 
 Gutteridge r. Stilwell, 351, 755 
 Guyi-. Sharp, 1156, 1159, 1161 
 Gwillim r. Gwillim, 75, 77, 91 
 
 — V. Holland, 604 
 Gwyert'. Peterson, 1908, 1909 
 Gwynne v. Edwards, 1586 
 
 — V. Muddock, 970 
 Gyett V. "Williams, 1222 
 Gyhon, Be, 1812 
 
 Gyles V. Dyson, 1854 
 
 — V. Gyles, 1928
 
 INDEX OF CASES. 
 
 Ixi 
 
 H. 
 
 Habergham v. Ridelialgli, 1077, 1339^ 
 
 — V. Vincent, 86, 326 
 
 Hacker v. Newborn, 39 
 Hackman v. Black, 842 
 Haddelsey v. Adams, 1328, 1329 
 Haddon v. Fladgate, 54, 666 
 Haden v. Parsons, 1740 
 Hagger, In the goods of, 385 
 
 — V. Payne, 944 
 Haig V. Swiney, 1058 
 Haines v. Welch, 629 
 Hakewell, In the goods of, 88 
 Haldane v. Eckford, 1394, 1395 
 Haldenby v. Spofforth, 1940 
 Hale, In the goods of, 386 
 
 — V. Hale, 1116 
 
 — V. Tokelove, 168, 170, 181, 295 
 Hales V. Cox, 870, 1586 
 
 — V. Darell, 1163, 1166 
 
 — V. Freeman, 1441, 1506, 1507 
 Haley v. Bannister, 1162, 1270 
 Hall, In the goods of, 99 
 
 — Me, 953, 954, 957, 1899 
 
 — V. Andrews, 806 
 
 — V. Austin, 1913 
 
 — V. Brooker, 1580 
 
 — V. Elliott, 212, 215 
 
 — V. Fisher, 929 
 
 — V. Hall, 40, 1041 
 
 — V. Hallett, 807, 1702. 1748, 1750 
 
 — V. Hewer, 947, 951 
 
 — V. Hill, 1070, 1161, 1169, 1198, 
 
 1349 
 
 — V. Huffam, 1618, 1774, 1833 
 — ■ V. Hugoiiin, 744 
 
 — V. Luckup, 950 
 
 — V. LIcDonald, 887 
 
 — V. May, 830 
 
 — V. Robertson, 1142 
 
 — V. Severn, 6 
 
 — V. Tapper, 881 
 
 — V. Warren, 16, 17, 18, 922, 930, 934, 
 
 1134 
 
 — V. Wyborn, 1842 
 Hallett, lie, 567, 1896 
 
 — V. Hallett, 1781 
 
 Hallifax v. Wilson, 1105, 1108, 1138 
 Ilalliwell, In the goods of, 132, 455 
 
 — V. Tanner, 1564 
 Hallyburton, In the goods of, 303 
 Halton V. Foster, 984 
 
 Ham's Trust, 980, 1081 
 Hambly v. Trott, 1595, 1601, 1602, 1603, 
 
 1606 
 Hambrooke i: Simmons, 685 
 Hamer's Devisees' Case, 1560, 1596, 1626 
 Hames v. Hames, 1005 
 Hamilton, Jle, 1271 
 
 — V. Aston, 1792 
 
 — V. Dallas, 1398 
 
 — V. Incledon, 1672 
 
 Hamilton v. Lloyd, 1064 
 
 — V. Mills, 746 
 
 — V. Worley, 1564, 1563 
 Hammersley v. De Biel, 109 
 Hammond, In the goods of, 70, 78, 435 
 
 — V. Douglas, 1521 
 
 — V. Gatlille, 1601 
 
 — V. Maule, 1099, 1106 
 
 — V. Smith, 1163 
 Hamond v. Jethro, 571, 1615 
 Hampson, In tlie goods of, 437 
 
 — V. Brandwood, 975 
 Hanbury v. Hanbury, 1168 
 
 — V. Kirkland, 1732, 1735 
 
 — V. Spooner, 1147 
 Hanby v. Fisher, 15S8 
 
 — V. Roberts, 1587 
 Hance v. Truwhitt, 1308 
 Hancock v. Hancock, 603 
 
 — V. Podmore, 837, 838, 1679, 1860 
 
 — V. Prowd, 217, 885, 1702, 1859 
 Hancom v. Allen, 1709, 1724 
 
 Hancox v. Abbey, 1579, 1582, 1583 
 Hand, In the goods of, 1053, 1054 
 Handley v. Stacey, 35 
 Hands v. Hands, 1930, 1933 
 Hannam v. Mockett, 619 
 
 — V. Sims, 1084 
 Hannay v. Taynton, 437 
 Hansen v. Miller, 748, 993 
 
 Hanson v. Graham, 10S8, 1095, 1093, 1101 
 Harbert, Sir William's, Case, 1617 
 Harbin v. Darby, 1761, 1769, 1815, 1942 
 Harcourt v. ]\Iorgau, 1064, 1300 
 
 — V. White, 1928 
 Hardcastle v. Hardcastle, 1099, 1111 
 Harden v. Forsyth, 1873 
 
 — V. Parsons, 1708 
 Harding, In the goods of, 351, 755 
 
 — V. Edge, 864 
 
 — V. Glyn, 981 
 
 — V. Harding, 1451, IISS 
 
 — V. Salkill, 1835 
 Hardinge, In the goods of, 387 
 Hardstone, In the goods of, 443, 461 
 Hardwick v. Hard wick, 1070 
 
 — V. Thurston, 1083 
 Hardy, In the goods of, 295 
 
 — Me, 1220, 1221, 1222, 1223 
 Hare, Ee, 782 
 
 — In the goods of, 92, 272 
 Harecourt v. Wrenham, 1522 
 Harewood v. Child, 1579 
 Harford v. Browning, 1152 
 Hargrave's case, 1634 
 Hargreaves, Jie, 1904 
 
 — V. Michel], 1922 1923 
 
 Hargthorpe r. Millfortli, 1726 
 Harland v. Trigg, 991 
 Harley v. Bagsliaw, 133 
 
 — V. Moon, 1212, 1211, 1217 
 Harloe v. Harloe, 851 
 
 Harmaa v. Harman, 879
 
 Ixii 
 
 INDEX OF OA.SKS. 
 
 llaniionv (Tlic), case of, 1392 
 Hannooil v. Os^lander, 1591, 1592 
 llarrald. Be, 1903 
 Harries' Trust, i?<-, JI320, 1322 
 Harrington, ii'c, 1271) 
 
 — r. Howyer, 2S2 
 
 — r. Harrington, 638 
 
 Harris, In the coods of, 97, 117, 125, 138, 
 140, 201, 300 
 
 — Jlc, 909, 910, 1109 
 
 — V. r>errall, 1(5, 36, 125 
 
 — r. Havis, 967, lOSO, 1081, 1324 
 
 — r. Farwell, 1623 
 
 — r. Fer<;usson, 570 
 
 — r. Finch, 1294 
 
 — V. Gandy, 1908, 1909 
 
 — V. Ooodwvn, 1613, 1862 
 
 — V. Karl Howe, 1495 
 
 — V. Knii^ht, 92, 135, 318 
 
 — r. Lh.yd, 945, 957 
 
 — r. Wil'burn, 449, 450 
 
 — V. r-oyner, 1039, 1252 
 . ~ r. Saunders, 860 
 
 — V. AVutkins, 579 
 Harrison's case, 868, 872 
 Harrison, In the goods of, 435 
 
 — llr, 484, 486, 887, 894, 929, 
 
 1013, 1645, 1831 
 
 — 7\ All persons in general, 379 
 
 — V. Andrews, 745 
 
 — r. Barton, 572 
 
 — r. Beccles, 1860 
 
 — V. Klvin. 83 
 
 — V. Foreman, 1137 
 
 — r. Graham, 230 1737 
 
 — r. Grinnvood, lbw9, 1102, 1109 
 
 — t: Harrison, 82, 909, 1017, 1344 
 V. Jackson, 1186, 1187 
 
 — v. Naylor, 1119 
 
 — V. Rowley, 212, 1147. 1151 
 
 — V. Stone, 292 
 Harriss v. Fawcett, 1660 
 Harrod v. Harrod, 13, 35 
 Harrop's Estate, Jte. 591 
 Hart V. Middlehurst, 1552 
 
 — V. Minors, 1829 
 
 — V. Stephens, 739, 749 
 
 — V. Tribe, 990 
 
 Hart's Trusts, Jle, 1099, 1101, 1119 
 Harter v. Harter, 293, 294, 316 
 Hartland v. Murrell, 578 
 Hartley, Ee, 1133, 1930 
 
 — V. Hurle, 1579 
 
 — V. Tribber, 932, 956, 957 
 Hartop V. "Wliitmore, 1194 
 Hartoppr. Hartopp, 1195 
 Harlshorne r. Nicholson, 915 
 Hartwell v. Chitters, 1548 
 
 — V. Colman, 1208 
 
 — r. Colvin, 1922 
 Harvey's Estate, He, 1550, AdcL 
 HarA-cyr. Aston, 1123, 1128, 1129, 1142 
 
 — V. Cooke, 1064 
 
 Harvey r. Harvev, 648, 982, 1039, 1051, 
 1252, 1264, 1274, 1291, 1946 
 
 — r. Olliver, 1941 
 
 — V. Palmer, 1171, 1175 
 Harwood r. Baker, 34, 290 
 
 — V. Fisher, 744 
 
 — V. Goodright, 4, 152 
 
 — V. Hilliard, 1595 
 
 — V. Wrayman 1522 
 Haseldine, Me, 957 
 Haselinton v. Gill, 661 
 Haslewood r. Green, 970, 1224 
 
 — r. Pope, 1579 
 
 Hasluck V. Lehman, 1934 
 
 — V. Pedley, 729, 731 
 Hassall v. Smithers, 1544 
 Hassell v. Dawkins, 1163 
 Hastelow r. Stobie, 289 
 Hastie's Trusts, lie, 953, 958 
 Hastings, In the goods of, 3S2 
 
 — ifc, 869 
 
 — Lord, V. Sir Archibald Douglas, 
 
 635, 674, 677 
 
 — V. Hane, 1053, 1318 
 Hatch V. Searles, 1946 
 
 — V. Skelton, 1563 
 Hatchard v. Mege, 699, 700, 1799 
 Hatfield r. Miuet, 1374 
 
 — V. Pryme, 587 
 Hatherton, Lord, v. Bradburne, 725 
 Hathornthwaite v. Paissell, 187, 188, 1881 
 Hatton, In the goods of, 85, 86, 1284 
 Hauchet's case, 613 
 
 Haughton v. Harrison, 944, 1292 
 Havergal v. Harrison, 482, 1081 
 Havers v. Havers, 419, 1881 
 Hawarden v. Dunlop, 299 
 Hawes v. Leader, 211 
 
 — r. Smith, 1669 
 Hawke v. WedderLurne, 386 
 Hawkes r. Baldwin, 1133 
 
 — V. Barrett, 1908 
 
 — r. Hawkes, 99 
 
 — r. Saunders, 1228, 1661, 1667, 
 
 1673 
 Hawkins' Trusts, i.V, 913, 1147 
 Hawkins v. Allen, 912, 913 
 
 — V. Blewitt, 684 
 
 — T. Combe, 1293 
 
 — V. Day, 1203, 1205, 1727 
 
 — V. Hawkins, 950, 1058, 1648 
 
 — V. Lawse, 1522 
 
 — r. Watts, 1272 
 Hawksworth v. Hacksworth, 937 
 Haworth, lie, 1887 
 
 Hay, In the goods of, 349 
 
 — r. Coventry, 929 
 
 — V. Fairlie, 1497 
 Haydon v. Rose, 937. 1138 
 
 — V. "Wood, 576 
 Hayes, In the goods of, lOG 
 
 — V. Hayes, 1026 
 Haygartli's Trusts, lie, 1453
 
 INDEX OF CASES 
 
 Ixiii 
 
 Hayle v. Hasted, 280 
 Hayler v. Tucker, 720 
 Hayling v. Okey, 632 
 Haynes, In the goods of, 184 
 
 — V. Forshavv, 801, 806, 1585, 1664 
 
 — V. Haynes, 1212, 1222, 1224, 
 
 1510 
 
 — V. Hill, 88 
 
 — V. Matthews, 361, 386 
 
 — V. Mice, 1164 
 Haysleji v. Gymer, 691 
 Hayter v. Joinville, 991 
 
 — V. Moat, 1681 
 
 — V. Trego, 924 
 
 — V. Tncker, 910 
 Hayton v. Wolfe, 205 
 Hayward, He, 1125 
 
 — V. Constable, 1911 
 
 — V. James, 1138 
 
 — V. Kinsev, 849, 1702 
 Head v. Randall, 933, 974, 1386 
 Headington v. Holloway, 313 
 Heal V. Knight, 1489 
 
 Heard v. Stanford, 1652 
 
 Hearle v. Greenbank, 1269, 1292, 1308 
 
 Hearn v. Baker, 1330 
 
 — V. Wells, 567, 1943 
 
 Hearne-!;. Wiggington, 1040, 1317, 1319 
 Heasman v. Pearse, 975, 1328, 1331 
 J-leatli's Settlement, Jle, 975 
 Heath, In the goods of, Add. 
 
 — V. Atworth, 488 
 
 ■ — • V. Brindlev, 1873 
 
 — V. Chapman, 901, 902, 904, 919 
 
 — V. Chilton, 765, 786, 1777 
 
 — V. Dendy, 1217, 1218 
 
 — V. Lewis, 1141 
 
 — V. Nugent, 1221, 1507 
 
 - V. Percival, 1878 
 
 — V. Perry, 1269, 1290, 1293, 1294 
 
 — V. Samson, 1392 
 
 — V. Weston, 1062 
 Heathcote's Trusts, Jlc, 1126 
 Heathcote, In the goods of, 87, 89 
 
 — V. Hulme, 1295, 1752, 1753 
 Heathe v. Heathe, 1327, 1328 
 Heaton v. Hassell, 753 
 Hebblethwaite v. Peever, 1924 
 Hedgeley, Ite, 1557, 1652, 1654 
 Hedges' Trust, He, 1212 
 
 Hedges v. Harpur, 972, 1059 
 
 — V. Hedges, 681, 1568 
 Hedgman, He, 912, 915 
 Heighington u. Grant, 1758, 1759, 1764, 
 
 1936 
 Hele V. Stowell, 506 
 Helier v. Casbert, 1636, 1640 
 HellawcU v. Eastwood, 642 
 Hellier, Ux parte, 489 
 
 — V. Cashavd, 1631 
 
 — V. Hellier, 138, 430 
 Helyar v. Helyar, 137 
 Heming V. Clutterbuck, 1157 
 
 Hemingway, Re, 937 
 Hemming v. Gurrey, 1158 
 Hemmings i\ Munckley, 1140 
 Henchman v. Att.-Gen., 580, 923 
 Heuder v. Rose, 1374 
 Henderson, In the goods of, 366 
 
 — He, 992, 1003, 1880 
 
 — V. Cross, 1131 
 
 — V. Dodds, 1940, 1945 
 
 — V. French, 848 
 
 — V. Henderson, 1782 
 
 — V. M'lver, 1768 
 
 Henfrey v. Henfrey, 140, 153, 162, 189 
 Hengler, He, Add. 
 Henley v. Philipps, 48 
 Henningham's case, 1594 
 Henshall v. Matthew, 781 
 Henshaw v. Atkinson, 914 
 Hensler, He, 1086 
 Hensloe's case, 339, 340, 355 
 Hensmanr. Fryer, 1564, 1565, 1571, 1588, 
 1589, 1592 
 Henvell v. Whitaker, 578, 1153 
 Hepburn v. Skirving, 1302 
 Hepworth v. Heslop, 882 
 
 — V. Hill, 1567, 1572 
 Herbert's Trusts, He, 954, 956 
 Herbert v. Herbert, 54, 105 
 
 — V. Lowns, 34 
 
 — V. Pigott, 816 
 
 — V. Powis, 1667 
 
 — V. Reid, 1009 
 
 — V. Sheill, 459 
 Hereford v. Ravenhill, 585 
 Herefordshire Bank, Jie, 1628 
 Herlakenden's case, 621, 622, 644, 647 
 Herns v. Drake, 723 
 
 Heron v. Poole, 1576 
 
 — V. Stokes, 1124, 1385 
 Herons (Minors), He, 1272 
 Hen-enden v. Palmer, 1833 
 Herrick v. Franklin, 9(i7, 973 
 Hertford V. Lowther, 1041, 1043, 1157,1288 
 
 — (Lord) V. Zichi, 1916 
 Hervey, He. 1945 
 
 — ■;;. Fitzpatrick, 369, 1526 
 
 — V. McLaughlin, 1126, 1137 
 Heseltine v. Heseltine, 1190 
 Heslop, In the goods of, 497 
 
 Hesse, Elector of, In the goods of, 366, 
 
 376 
 Hetherington v. North Eastern Railway 
 (.'orapany, 704 
 — V. Oakman, 936 
 
 Heward v. Wheatley, 1627 
 Hewes v. Hewes, 1893 
 Hewett V. Foster, 1728, 1729, 1730, 1936 
 Hewit V. Wright, 587 
 Hewitt V. Jardine, 1370 
 
 — V. Kaye, 689 
 
 — V. Morris, 1243, 1246 
 Hewlins v. Shippam, 633 
 Hewson r. Reeil, 1069
 
 \xi\ 
 
 INDEX OF CASES. 
 
 Hewston r. Tbillips, 18;?0 
 Heyjjate r. Annesley, 751 
 Heylin v. Heylin, ICo 
 Hey ward's case, 1742 
 Heywood r. Heywood, PoS 
 Hibben v. Caleiaberg, 499 
 Hibbert v. Hibbert, 980 
 Hickey v. Hayter, 1857, 1869 
 Hickling v. Boyer, 1204, 1205, 156?., 
 
 1G47 
 Hickman v. Black, 418 
 
 — V. Upsall, 264, 1212, 1260 
 
 — r. AValker, 1785, 1786 
 Hicks, In the goods of, 111 
 
 — V. Keat, 1427 
 
 — V. Ross, 1059, 1062 
 Hide V. Haywood, 1936 
 Higgins's Trusts, He, 1847 
 
 Higgins, He, 1412, 1446, 1470, 1472, 
 
 1505 
 
 — r. Higgins, 845 
 Higgor V. Alortimer, 643 
 Higham v. Higharu, 1944 
 Hilbert v. Lewis, 1831 
 Hill's Trusts, Be, 907, 1126 
 
 — case, 1627 
 
 Hill, In the goods of, 105, 301, 306, 
 366 
 
 — r. Atkinson, 1410, 1478 
 _ V. Bird, 496, 497 
 
 — V. Crook, 953, 954, 956, 957 
 
 — V. Curtis, 214, 215, 216, 218, 219, 
 
 220, 344, 345 
 
 — V. Gomme, 1206 
 
 — r. Hill. 1026, 1037, 1291 
 
 — V. Eattey, 1059 
 
 — V. Simpson, 806 
 
 — r. AValker, 895, 1699, 1800 
 
 — V. Wilson, 1658, 1902 
 Hillam v. Walker, 311 
 Hilliard, i?<-, 1753 
 
 — V. Eifl'e, 482 
 
 — r. Fulford, 1947 
 Hills V. Hills, 684 
 
 — V. M'Rae, 1618 
 
 — v. Mills, 187, 188, 337, 441 
 Hilton V. Giraud, 910 
 Hinchcliff'e r. Hinchcliffe, 1163 
 Hinchliffe r. Westwood, 992 
 Hinckley, He, 404 
 
 — V. Maclarens, 984 
 
 — •?•. Simmons, 160, 1125 
 Hind V. Selbv, 1039, 1252, 1330 
 Hinde v. Blake, 1884, 1885 
 
 — V. Skelton, 1836 
 Hindle r. Taylor, 1212 
 Hintimarch, In the goods of, 113 
 Hindmarsh r. Charlton, 79, 82, 83 
 Hindslevr. Russell, 1856, 1862 
 Hindson r. 'Wetherill, 100, 468 
 Hingeston r. Tucker, 279 
 Hinings r. Hinings, 1285 
 Hinson v. Button, 1234 
 
 Hinton v. Parker, 848 
 Hinton v. Pinke, 1022 
 
 — V. Toye, 1550 
 
 Hinvest?. Hinves, 1038, 1039 1252 
 Hirst V. Smith, 789, 790 
 — V. Tolson, 1650 
 Hitchcock V. Beardsley, 742, 1073 
 Hitcheu v. Birks, 433 
 Hitchens v. Hitchens, 604 
 Hitchings v. Wood, 101, 136 
 Hitchins v. Bassett, 141 
 Hoare, In the goods of, 495 
 
 — V. Contencin, 1621 
 
 — V. Osborne, 918, 921, 1083 
 Hoath V. Hoath, 1098 
 
 Hobbs r. Knight, 112, 115. 117, 154. 
 
 170 
 
 — V. Parsons, 1099 
 Hobgen r. Neale, 973, 1078 
 Hobson, He, 1251 
 
 — r. Blackburn, 8, 109, 929 
 
 — r. Neale, 1488 
 Hoby V. Hoby, 15 
 Hockley i: Bantock, 1717 
 
 — V. Wyatt, 281 
 Hodge r. Foot, 1333 
 Hodges' Legacy, 1133 
 Hodges, He. 1272 
 
 — V. Grant, 1022, 1328 
 
 — V. Hodges, 1550 
 
 — V. Peacock, 1156, 1159 
 
 — V. Waddington, 1313, 1314 
 Hodgson, He, 1173, 1174, 1619, 1658, 
 
 1903 
 Hodgson's Trusts, He, 1323 
 Hodgson V. Ambrose, 930 
 
 — V. Bective, 1267 
 
 — V. Bibby, 1927 
 
 — r. Clarke, 1011 
 
 — V. De Beauchesne, 1095, 1397 
 
 — V. Halford, 1139, 1140 
 
 — r. Jex, 1040, 1048 
 
 — V. Rawson, 1120 
 
 — V. Smithson, 1078 
 Hodkinson v. Quinn, 576, 577 
 Hodsden v. Harridge, 1785, 1789 
 Hoe r. Nelthorpe, 1793 
 Hoffman r. Norris, 275, 277 
 Hogg V. Cook, 964 
 
 — V. Jones, 1139 
 Holden r. Kynaston, 1916 
 
 — V. Ranisbottom, 1065 
 Holderness v. Reyner, 1337, 1338 
 Holdernesse (Lady) v. Lord Carmarthen. 
 
 719 
 Holdsworth r. Davenport, 910, 912 
 Hole V. King, 761 
 Holfordv. Wood, 1156 
 Holgate V. Jennings, 987, 1039, 1079, 1245, 
 
 1252 
 Holl r. Bradford, 700, 1607 
 Holland r. Clark, 1828, 1895, 1924 
 
 — r. Hughes, 1248, 1709
 
 INDEX OF CASES. 
 
 Ixv 
 
 Holland V. King, 314 
 
 — V. Prior, 845, 1913 
 
 — V. Wood, 936, 952 
 Holliday v. Atkinson, 688 
 
 — V. Boas, 1177 
 
 — V. Bowman, 1582 
 -— V. Fletcher, 1833 
 
 Hollingshead, Ee, 1839, 1841 
 Ilollingshcad's case, 1801 
 Hollingsvvortli v. Grasett, 1152 
 Hoilingvvorth v. Ascue, 868 
 HoUiss case, 1922 
 Mollis V. Smith, 760, 761 
 Holloway v. Claikson, 994 
 
 — V. Collins, 1261 
 
 — V. Holloway, 969, 988, 
 
 — V. RadclifTe, 987 
 
 — v. Webber, 638, 1253 
 Holme V. Hammond, 1618 
 Holmes v. Coghill, 1552, 1592 
 
 — V. Dring, 1707 
 
 — V. Godson, 1131 
 
 — V. Holmes, 1197, 1297 
 
 — V. Tutton, 1797 
 Holniesdale v. West, 638 
 Holt, In the goods of, 139, 152 
 
 — V. Frederick, 1370 
 
 — V. Sindrey, 954, 957, 958 
 
 — V. AVinchester, Bishop of, 594 
 Hol3dand, Ex2iartc, 17 
 
 — V. Lewin, 1086 
 Human, In the goods of, 400 
 Home V. Pillans, 1126, 1331 
 
 — • V. Pringle, 1728 
 Homfrav, In the goods of, 323 
 Hone's Trnsts, lie, 1086 
 Hone V. Medcraft, 1032, 1192 
 Honner v. Morton, 744 
 Honywood, In tlie goods of, 317 
 
 — V. Foster, 1305 
 Hood V. Barrington, 299 
 
 — V. Clapham, 1040, 1252 
 
 — V. Oglander, 1130 
 
 — V. Pimm, 1804 
 Hooley V. Hatton, 1156, 1159 
 Hooper's Will, R", 1824 
 Hooper w. Goodwin, 1658 
 
 — V. Summersett, 210, 217, 
 
 Hope r. Bague, 1634, 1869 
 
 — V. Potter, 935 
 Ho))good V. Parkin, 1701 
 Hopkins, In the goods of, 385] 
 Hopkins' Trusts, Re, 952, 975, 1332 
 Hopkins v. Abbott, 1056 
 Hopkiuson v. Ellis, 585 
 
 — V. Forster, 690 
 
 — V. Leach, 894 
 
 — V. Roc, 1768 
 Hopton V. Dryden, 888, 891 
 Hopwood V. Hopwood, 165, 1191, 
 
 W.E. — VOL. I. 
 
 1000, 
 10U3 
 
 218, 
 1860 
 
 1195, 
 1197 
 
 Hopwood V. Whalev, 1638 
 Horde v. Lord Snflolk, 923 
 Hore V. Beclier, 747 
 
 — V. Woulfe, 751, 758 
 Horn V. Coleman, 1327 
 
 Hornbucklc, In the goods of, 50, 5=!. 1S2. 
 
 327, 328 
 Hornc v. Shepherd, 1940 
 Horner, Re, 582, 937, 953, 957, 993 
 Horner's Estate, Be, 1333, 1334 
 Horner v. Horner, 342 
 Hornidge v. Wilson, 1641 
 Horrell v. Witts, 430 
 Horridge v. Ferguson, 078 
 Horseman v. Abbey, 994 
 Horsepool v. Watson, 975, 1000 
 Horsford, In the goods of, 123, 125 
 Horsley x. Chaloner, 1893, 1896 
 Horton v. Brocklehurst, 1734, 1736 
 Horwoodt). Griffith, 1029, 1070 
 Hosier v. Arundell, 765, 1537 
 Hosking v. Nicholls, 1024, 1027, 1028, 
 
 i;51 
 Hoskins v. Camjibell, 1908 
 
 — V. Matthews, 1395 
 HosteiJ. Pratt, 942, 944. 1272 
 Hotchkin V. Humfrey, 1115 
 Hotchkiss's Trusts, Re, 1076 
 Hotchkys, Re, 1310 
 
 Hothami\ Sutton, 1025, 1042, 1016 
 Houblon, In the goods of, 167 
 Houel V. Barnes, 825 
 Houghton r. Franklin, 1242 
 Household, Re, 1807, 1825 
 Houston, In tlie goods of, 459 
 Hovendeii v. Annesley, 1922 
 Hovey r. Blakeraan, 1732, 1765 
 Howard, In the goods of, 7, 141 
 
 — V. Baillie, 1677 
 
 — V. Bank of England, G60, G63 
 
 — V. Conway, 1067 
 
 — V. Digby, 671, 673 
 
 — V. Howard, 1330, 1876 
 
 — V. Jemmet, 559 
 
 — V. Oakes, 740 
 
 — V. Papera, 188, 1881 
 
 — r. Wilson, 1008 
 Howarth, Re, 1275 
 
 — V. Kothwell, 1212 
 Howden, In the goods of, 87, 300 
 
 Howe V. Lord Dartmouth, 1028, 1034, 
 1038, 1039, 1248, 1249, 1251, 
 1709, 1710, 1717, 1719, 1724 
 
 — Earl, V. Lichheld, Earl oJ, 1459, 
 
 1475 
 
 — v. Whitcbank, 831 
 Howell V. Gayler, 994, 1052 
 
 — V. Price, 1563 
 
 — V. Metcalfe, 460, 461 
 Howells V. Jenkins, 1305, 1311 
 Howes V. Herring, 1090 
 Howgrave v. Cartier, 1114, 1115 
 Howkins v. Howkins, 1933 
 
 C
 
 I XVI 
 
 INDEX OF CASKS. 
 
 Howloy r. Kni,i,'lit, 733 
 Howmau v. Corie, 74',> 
 Howse r. Cliai>iiiau, 720, 918, 923 
 
 — V. Webster, 1036 
 Hoycs r. Kindeislev, 670 
 HiiUmck, Re, 885, "889, 891 
 Hubbard In tlu- goods of, 86, 111 
 
 — r. Alexander, 1160 
 
 — r. Young, 1039, 1252 
 Huble V. Clark. 319 
 Huckvalo, In the goods of, 69, 78 
 lluddlestoii. In the goods of, 294, 316 
 JIudlcston v. (touldsbury, 1056 
 
 — r. lludleston, 381 
 Hudson V. IJryant, 935 
 
 — r. Cook, 581, 1573 
 
 — V. Hudson, 411, 760, 761, 820, 
 
 821, 1178 
 
 — r. Parker, 75, 77 
 Hudson's Trusts, /.V, 1121 
 llutianir. Hubbard, 1330 
 Huggins v. Alexander, 843 
 Hughes, In the goods of, 68, 31 7j 
 
 — V. Coles, 1925 
 
 — r. Cooksoii, 418 
 
 — V. Ellis, 1131 
 
 — v. Enipson, 1718 
 
 — r. Hosking, 165 
 
 — r. Hughes, 942, 1352 
 
 — r. Jones, 176 
 
 — r. Pritehard, 1317 
 
 — r. Ricards, 419 
 
 — r. Tuiner, 150, 151, 165, 447 
 
 — r. "Wells, 1560 
 
 — V. Williams, 1927 
 
 — V. Wynne, 1923 
 Hugo, In the goods of, 158, 159 
 Huguenin v. Baseley, 40 
 Huish, Re, 1166 
 
 Hulrae V. Heygate, 164 
 
 Hulkes, Re, 1740, 1751, 1756, 1810 
 
 Hull's Estate, Re, 1018 
 
 Hull V. Hill, 1055 
 
 Huniberston r. Humberston, 1149 
 
 Humberstone v. Chase, 1227 
 
 — r. Stanton, 1084, 1085 
 
 Humbler. Bill, 802 
 
 — i: Langston, 1632 
 
 — V. Shore, 1324 
 Humer. Druyff', 1934 
 
 — V. Lopes, 1710, 1713 
 
 — v. Rundell, 476 
 Humfrey r. Humfrey, 1079 
 Humphrey f. Bullen, 346, 349, 755, 1358 
 
 — V. Humphrey, 1058 
 
 — r. Tayleur, i080 
 Humphrej-s, Re, Add. 
 
 — v. Howes, 1084 
 
 — v. Humphreys, 256, 342, 1024, 
 
 1215, 1803 
 
 — r. Ingledon, 249, 256, 343, 18U3 
 
 — V. Jloore, 1814 
 Humphrie.s, Rr, 953, 955, 956, 957 
 
 Humphries r. Huniplnies, 1186 
 Hunt's Trusts, Re, 1322, 1324 
 Hunt-Foulston v. Furber, 1130 
 Hunt V. Berkley, 1337, 1338 
 
 — r. Hort, inl3. 1066 
 
 — r. Hunt, 69, 724 
 
 — r. Scott, 1039, 1252 
 
 — V. Stevens, 253, 53S, 539, 1794 
 Hunter's Trusts, Re, 1098 
 
 Hunter, £.c parte, 1115, 1127 
 
 — V. P>axter, 1701 
 
 — r. Che.shire. 1076 
 
 — V. Judd, 1090, 1113 
 
 — r. Noekolds, 1927 
 
 — V. Rice, 609 
 
 — r. Young, 1207, 1313, 1314, 1822, 
 
 191S 
 Hunting v. Sheldrake, 1556 
 Huntley v. Giiffiih, 756 
 
 — T. Russell, 1609 
 Hurry r. Hurry, 1078, 1079 
 
 — V. Jlorgan, 937 
 
 Hurst tJ. Beach, 1157, 1158, 1159 
 
 — V. Hurst, 1948 
 Husband v. Pollard, 767 
 Hussey v. Berkeley, 959, 960 
 Hutcheon v. ilanuington, 1090, 1091 
 Hutcheson v. Hammond, 1145, 1258, 1709 
 
 — V. .Jones, 944 
 Hutchins V. Foy, 1120 
 
 — V. Smith, 744 
 Hutchinson's Trusts, Re, 1386 
 Hutchinson v. Barrow, 1302 
 
 — v. Lambert, 401, 403 
 
 — V. Savage, 564 
 
 — V. Sturges, 1781 
 Hutchinson and Tenant, Re, 98, 989, 990 
 Hutton, In the goods of, 264 
 
 — r. Rossi ter, 1894 
 Hyam v. Helm, 1801 
 
 Hyde v. Dean of Windsor, 1597, 1630 
 
 — r. Hyde, 119, 127, 130 
 
 — V. Haywood, 1759 
 
 — r. JIason, 127 
 
 — V. Xeate, 1170 
 
 — V Skinner, 1595 
 Hyett V. ]\Iekin, 580, 1S13 
 Hyues v. Redington, 1709 
 
 I. 
 
 Ibbktsox, In the goods of, 123 
 
 — V. Ibbetson, 1566 
 Ibbotson r. Elani, 1249 
 IckeringiU's Estate, Re, 1322 
 Ihlcr, In the goods of, 355 
 llchester, Lord, Ke parte, 127, 130 
 
 — r. Lord Carnarvon, 1566, 156S 
 Illidge, Re, 888, 889, 890, 893, 1558, 1559 
 llott V. Genge, 76, 77, 78 
 
 Ince, In the goods of, 167 
 Inchiquin v. French, 329, 1578, 1579
 
 INDEX OF OASES. 
 
 Ix 
 
 XVll 
 
 Iiicledou i'. Northcote, 678, 1291 
 Incorporated Church Building Society v. 
 
 Coles, 920 
 Ingery v. Hyde, ir.98 
 Ingle's Trusts, P.e, 1013 
 Ingle V. Richards, 243, 1179, 1929 
 
 — V. Partridge, 1705, 1723, 1884 
 Ingleby v. Dobsoii, 913 
 Inglesant v. Inglesant, 77 
 Iiigoldby V. Ingoldby, 88 
 Ingram v. WyaLt, 34, 40, 99, 100 
 
 — V. Soutten, 1126 
 
 — V. Strong, 157 
 
 Inland Revenue Commissioners v. 
 
 Harrison, 1457, 1168 
 Junes V. Johnson, 1022, 1030 
 
 — I'. Mitchell, 1061, 1220, 1221 
 
 — V. Sayer, 1029 
 Ion V. Ashton, 908, 1583 
 Ipswich, Bailiffs of, v. Martin, 1631 
 Irby V. Irby, 883, 1947 
 
 Iredalc v. Ford, 363 
 Iredell v. Iredell, 944 
 Ireland v. Bendall, 2'>2 
 Irons V. Smallpiece, 682, 68 1 
 Irvin V. Ironmonger, 1242 
 Irvine v. Sullivan, 330 
 Irving, In the goods of, 462 
 Isaac V. Defriez, 918 
 Isted V. Stanley, 205, 257 
 Ive V. King, lo78, 1084, 1328 
 Ives V. Dodgson, 1068 
 
 — V. Samnies, 1641 
 Ivison 1'. Gassiot, 1046 
 Ivory, Jle, 433, 465, 466 
 Izod V. Izod, 979 
 
 Izon V. Butler, 1073, 1226, 1491 
 
 Jack v. Fcatherston, 931 
 Jackson, In the goods of, Add. 
 Jackson, Jie, 1081, 1825 
 
 — V. Bowley, 1857 
 
 — V. Calvert, 973 
 
 — V. Dover, 1114 
 
 — V. Forbes, 1499 
 
 — '('. Hamilton, 1565 
 
 — V. Hurlock, 1('4 
 
 — -l: Jacksmi, 458, 460 1088, 1158, 
 
 1327 
 - r. Kelly, 1319 
 
 — V. Lyon, 1860 
 
 — V. Paulet, 197 
 
 — V. Pease, 1592 
 
 — V. Petrie, 1932 
 
 — V. Prudehome. 1380 
 
 — V. Tur([uand, 1628 
 
 — V. Whitehead, 227, 231 
 
 — V. Woolley, 1840, 1936, 1943 
 Jac(jb's Will, Jle, 1255 
 
 Jacobs r. Amyatt, 968 
 — I'. Jacobs, 969, 970 
 
 Jacobs V. Miniconi, 778, 860 
 
 Jacomb v. Harvvood, 411, 816, 821, 1619 
 
 Jacques v. Chambers, 1021, 1303, 1649 
 
 Jacquet v. Jacquet, 1923, 1927 
 
 Jagg.ird V. Jaggard, 951 
 
 James, In the goods of, 112, 123 
 
 — Ej: 'parte, 560, 1749 
 
 — V. Allen, 923, 924 
 
 — V. Dean, 1192, 1518, 1540 
 
 — V. Frearson, 1738 
 
 — V. Portmaii, 626 
 
 — V. Semmens, 1156, 1159 
 
 — '0. Slirini[)ton, 130 
 
 — V. Smith, 962 
 
 — V. Lord Wynford, 1117 
 Jansen v. Jansen. 156, 157 
 Jansou V. Bury, 1384 
 Jarman's Estate, Re, 924 
 Jauney v. Sealey, 296, 369 
 Jay V. Johnstone, 1924 
 
 — V. Robinson, 1652 
 Jeacock v. Falkener, 1164 
 Jeaffreson's Trusts, Re, 967, 1320 
 Jeale v. Tiickener, 1120 
 Jebb V. Tugwell, 1040, 1252 
 Jetfereys v. Small, 571 
 Jetferson v. Warrington, 1775 
 Jeiiery, i&, 1267 
 
 — r. Jellerv, 1115 
 
 — -v. De Vitre, 977 
 
 — -v. Honeywood, 947 
 Jefireson v. Mortou, 1553, 1868 
 Jeffreys v. Connor, 1251 
 
 — V. Jeffreys, 1026 
 Jeffries V. Alexanik-r, 911, 916 
 .lefts V. Wood, 1163, 1170, 1171 
 Jeniiigs v. Baily, 1058 
 Jenkins, In the goods of. 493 
 
 — Re, 752, 1821 
 
 — ('. Briant, 1881 
 
 — v. Gaisford, 65 
 
 — ('. Gething, 657 
 
 — '('. Go\ver,'983, 988, 1327 
 
 — V. Herries, 939 
 
 — V. Hughes, 931, 932 
 
 — V. Jones, 1188 
 
 — (7. Parkinson, 1930 
 
 — V. Plombe, 761, 1534, 1535, 1536, 
 
 1537, 1697, 1720 
 
 — V. Powell, 1194 
 Jenkinson, Re, 1448 
 
 — V. Harcourt, 1566 
 Jennerr.Ffinch,80,81, 144,145, 172,291,312 
 
 — V. Turner, 1140 
 Jennings, Re, 1812 
 
 — V. Gallimore, 999 
 
 — 0. Looks, 1119 
 
 — V. Newman, 988, 16G], 1664 
 
 — V. Kigby, 862 
 Jennisou v. Lexington (Lonl). 726 
 Jenny v. Andrews, 1550 
 
 .lepson V. Key, 176, 1302 
 Jcrnegan v. Glass, 1931
 
 Ixviii 
 
 INDEX OF CASES. 
 
 Jorningliam r. Glass, 1931 
 
 — V. Herbert, G96 
 Jcrvis •!'. Lawrence, 90S 
 
 — V. Wolferstan, 1203, 1312, 1313, 
 
 1315, 1(327 
 Jervois v. Silk, 1271 
 Jervoise v. Jervoise, 67G 
 Jesse i". Bennett, 1S7S 
 Jesson 1'. Jesson, l]ti7 
 
 — r. AV right, 931, 032, 931, 935, 9CS 
 Jessopp V. "Watson, 587, 13S0 
 
 Jevens 1'. Harridge, 1634 
 
 Jewis V. Lawrence, 1149 
 
 Jewsbury v. Munnner^-, 120G, 1S5S 
 
 Jcves I'. Savage, 1114, 1115 
 
 .Tickling v. BirchaTn, 843, 844 
 
 Job V. Job, 1535, 1705, 1733, 1772, 1891 
 
 Jobson, Me, 1095, 1097, 1104 
 
 — V. Palmer, 1722 
 Jodrell, He, 953 
 
 — V. Jodrell, 673 
 John V. Bradburv, 418 
 
 Johnson, In the goods of, 104, 197, 199, 
 
 272, 382 
 
 — Jlc, 1519, 1682, 1881, 1901, 1924 
 
 — r. Baker, 839 
 
 — i: Ball. 89, 330, 1350 
 
 — r. Child, 1564 
 
 — r. Crook, 1090 
 
 — r. De la Creuze, 1257 
 
 — r. Johnson, 74, 660, 752, 1040, 
 
 1086, 1252, 1351, 1828 
 
 — r. Le Garde, 1644 
 
 — r. Lyford, 134, 295 
 
 — r. Milkhopp, 1563 
 
 — r. Mills, 1257 
 
 — V. Kewton, 1718, 1721 
 
 — r. Oxenden, 1952 
 
 — r. Prendergast, 1750 
 
 — r. Simcock, 936 
 
 — r. Smith, 691 
 
 — r. Telford, 1305, 1308, 1760, 1942 
 
 — r. Warwick, 251 
 
 — r. Webster, 604 
 
 — r. Witchcott, 1669 
 
 — V. Woods, 583, 584, 585 
 Johnston, In the goods of, 366 
 
 — He, 638, 1190, 1506 
 
 — V. Aston, 1883 
 
 — V. Johnston, 161 
 
 — r. Swann, 908, 915 
 Johnstone's Settlement, He, 1168 
 John.stone r. Beattie, 1398 
 
 — r. Hamilton, 1342, 1345 
 
 — r. Lord Harrowby, 1157, 1162, 
 
 1512 
 JoUifle, Ex parte, 467 
 
 — V. Last, 1946 
 
 Jones, In the goods of, 69, 70, 77, 192, 
 385, 455, 841 
 
 — Me, 885, 887, 888, 1295, 1324, 1433, 
 
 1591, 1753, 1820 
 Jones" Trnsts, He, 974 
 
 Jones ^■. Aleiihsiii, 1931 
 
 — r. Beytagh, 378, 379 
 
 — t: Brain, 1911 
 
 — r. Bromley, 1137 
 
 — V. Bruce, 1034, 1582 
 
 — r. Carter, 1604 
 
 — V. Chernev, 815 
 
 — T. Colbeck, 939, 988 
 
 — V. Davies, 562 
 
 — r. Evans, 886 
 
 — V. Flint, 623 
 
 — r. Foxall, 1295,1296, 1753, 1755,1758 
 
 — r. Goodchiid, 370 
 
 — r. Goodrich, 431 
 
 — V. Green. 1188 
 
 — V. Hall, 1327 
 _ V. Hill, 1610 
 
 — V. Howells, 256, 342, 539 
 
 — V. Jones, 464, 479, 800, 1138, 1141. 
 
 1911 
 
 — V. Jukes, 883 
 
 — r. Lewes, 1535, 1705 
 
 — V. Mackihvain, 1092, 1096 
 
 — V. Mitchell, 1320 
 
 — V. Morrall, 1750 
 
 — r. IMossoj), 1782 
 
 — V. Nicholav, 95, 96 
 
 — r. Ogle, 729, 731 
 
 — r. Powell, 870, 1768 
 
 — r. Roe, 352 
 
 — V. Sefton, 1041, 1045 
 
 — V. Selbv, 686, 691 
 
 — V. Sime'.s, 703, 1799 
 
 — r. Soutliall, 1022, lOSO, 1186 
 
 — r. Strafford (Lord), 422. 423 
 
 — r. Tanner, 1828 
 
 — V. Torin, 979 
 
 — V. AVaite, 1129 
 
 — r. Waller, 504 
 
 — r. Westcombe, 1134 
 
 — V. Williams, 918 
 
 — r. Yarnold, 345 
 
 Jopp r. Wood, 1111, 1122, 1395, 1-393 
 Jordan, In the goods of, 182, 327 
 
 — V. Adams, 932 
 
 — r. Fortescue, 96, 1068 
 
 — V. Lowe, 973 
 Joseph, In the goods of, 442 
 Josepli's Will, He, 1818 
 Joseph and Webster, He, 1677 
 
 — V. Lyons, 806 
 Joslin V. Brewet, 1347 
 Josselyn v. Josselyn, 1255, 1272 
 Joy r. Campbell, 1733 
 
 Joys, In the goods of, 152 
 Jubber r. Jubber, 1142, 1153 
 Judd r. Judd, 1113 
 Judkin's Trusts, He, 1267 
 Juler r. Juler, 1344 
 Jul! V. Jacobs, 899, 1113, 1325 
 Jupp, In the goods of. 1040 
 
 — He, 961, 1327, 1449 
 Jurv r. Woodhouse, 1520
 
 INDEX OF CASES. 
 
 Ixix 
 
 K. 
 
 Kampf v. Jones, 1024 
 Kaue V. Reynolds, 370, 1387 
 Kavanagh v. Moiland, 97-j 
 Keane, In thu goods of, 382 
 
 — V. Dee, 554 
 
 — V. Robarts, 806 
 Kearaey v. Wliitaker, 379 
 Ivearsley v. Oxle}', 163G 
 Keates v. Burton, 235 
 Keating v. Brooks, 71 
 
 — V. Keating, 808 
 Keay v. Bonltou, 969 
 Kebble, Ex j)cirte, 1270 
 Keble v. Keble, 1836, 1837 
 Keeling v. Brown, 1588 
 Keen's Executor's case, 1627 
 Keen v. Keen, 295 
 
 Keene, In the goods of, 445 
 Kehoe, In the goods of, 87, 90 
 Keigwin v. Keigwin, 77 
 Keilway v. Keihvay, 1378, 1379 
 Kellick, In the goods of, 81 
 Kellovv V. Westcombe, 212, 1836 
 Kelly V. Hammond, 957 
 
 — V. Powlett, 1044, 1048, 1010 
 Kelsock V. Nicholson, 817, SIS 
 Kemble v. Church, 17 
 
 Kemp V. Andrews, 1774 
 
 — V. Waddingham, 863 
 
 — V. Westbrook, 769 
 Kempton v. Cross, 1793, 1794 
 Kendall, Exi3artc, 1621, 1623 
 
 — V. Granger, 923, 924 
 
 — V. Hamilton. 1618, 1619, 1620 
 
 — V. Kendall, 1040, 1046, 1052 
 
 — 17. Russell, 1260 
 Kendall's Trust, Re, 1048 
 Kendar v. Milward, 1897 
 Kennaway v. Kennaway, 274, 479 
 Kennedy v. Sedgwick, 937 
 
 — V. Stainsby, 1346 
 Kennelli7. Abbott,146, 1016, 1319 
 Kenny v. Jackson, 841, 843 
 Kenrick v. Burgess, 209, 344 
 Kent V. Pickering, 894 
 Kenworthy v. Ward, 1326, 132S 
 Kenyon v. Kenyon, 1909 
 Kermode v. Macdonald, 154, 1183 
 Kerr's Trusts, i&, 1080 
 Kerr v. Clinton. 145 
 — y. The Middlesex Hospital, 1058, 
 1059, 1062 
 Kerrich v. Bransby, 473 
 Kerri.son's Trusts, He, 1272 
 Kershaw, Re, 1572, 1591 
 Kevern v. Williams, 944, 1089 
 Key v. Key, 936 
 Kidney v. Coussmaker, 1307 
 Kilbee v. Sneyd, 1691 
 Kilcher, In the goods of, 83 
 Kildare v. Hopson, 1750 
 
 Kilford x\ Blaney, 1576, 1578 
 Killican v. Parker, 261 
 Kilvington v. Stevenson, 1781 
 Kimbcrley v. Tew, 1106, 1111, 1124, 
 1138, 1259- 
 Kimjiton, In the goods of, 70 
 Kincaid, Re, 1277, 1278 
 Kinch V. Ward, 968 
 Kinderley v, Jervis, 561, 1560 
 Kiudleside r. Cleaver, 412 
 
 — V. Harrison, 17, 33, 39 
 King (The) v. St. Dunstan, 649 
 King's Pi-octor v. Daines, 95, 96, 97 
 King, In the goods of, 116, 409 
 
 — V. Asgrave, 402 
 
 — V. liennett, 950 
 
 — r. Bryant, 19 i8 
 
 — V. Cleaveland, 979, 995, 996, 1078 
 
 — V. Cullen, 1122 
 
 — r. Denisun, 1927 
 
 — V. Eoxwell, 1395, 1396 
 
 — V. Frost, 1334 
 
 — V. George, 1047 
 
 — V. Gillard, 315 
 
 — V. Isaacson, 1096, 1104 
 
 — r. Jones, 712, 717 
 
 — V. King, 432, 1910 
 
 — V. Thorn, 764, 1671 
 
 — v. Tootel, 1162 
 
 — V. Wither.s, 771, 1120 
 
 — V. Wright, 1067 
 King's Mortgage, A'e, 1057 
 Kingdon, Re, 152 
 
 — V. Bridges, 609 
 
 — V. Nottle, 712, 
 
 •13, 714, 
 
 717 
 
 Kingliam v. Lee, 1743 
 Kings V. Hilton, 1742 
 Kingsbury v. Collins, 624 
 Kiugsley's Trusts, ifc, 1276 
 Kiusey X: Heyward, 17S7, 1788, 1789, 
 1790, 1844, 1845 
 Kipping V. Ash, 279 
 Kir by, AV, 72 
 
 — V. Potter, 1022, 1024, 1027 
 Kircudbright r. Kircudbright, 1370, 1371. 
 
 1372, 1374 
 Kirk, Ex imrtc, Bennett, A'c, 1171 
 
 — V. Eddowcs, 1194, 1198 
 
 — V. Todd, 1600, 1608 
 
 — v. Webb, 1897 
 Kirkbaiik v. Hudson, 915 
 Kirke v. Kirke, 130, 1583 
 Kirkman's Trusts, Re, 1079 
 Kirkman v. iJooth, 1688, 1764 
 
 — V. Miles, 58u 
 Kirk[)alrick v. Capel, 993 
 
 — r. Kirkpatrick, 935, 1023 
 
 Kirwan's Trust, AV, 308, 309 
 Kitclieu V. Dixon, 211 
 
 — V. Ibbetson, 559 
 Kitto, Re, 1941 
 Kiver v. Uldlield, 155
 
 Ixx 
 
 INDEX OF CASES. 
 
 Kia>i.p, 7?.-. s:.;i, ir.2<) 
 
 Kniipinan, 7iV. 1172. 190:1 
 Kuapp V. Niiyes, 114r>, 1155 
 
 — V. Wiiliams, 908 
 Knatchbull v. Fennihea.l, 1203, 120G 
 Knevett r. Pcol, ti2!\ 630 
 
 Knight. Ji<; 170. 178 
 Knight's Will, He, 1937, 1938 
 Knight?', lioughton, 97 
 
 — r. Cameron, 1096, 1146 
 
 — r. Cole. 564, 565 
 
 — r. Cook, 319 
 
 — V. Davi';, 164»i 
 
 — v. I\» IJlaiiuicrp. 1797 
 
 — r. Ellis, 599, 967, 972 
 
 — V. GouW, 10S2, 1083, 1337, T 
 
 1 
 
 — r. Knight, 97, 1054. 1103,1293,1 
 
 — V. Lord PIvmouth, 1720 
 
 — r. Poole, f330 
 
 — V. Robinson, 1057 
 Knights r. Quarles, 708, 713 
 ivniveton r. Latham, 1697 
 Knocker r. Ijuiihury, 575 
 Kuolle's case, 727 
 
 Knottr.Cottee, 1295, 1296,1717,17:5,] 
 Knowles, lie, 1114 
 
 Ivnox V. Hotham, 1154 
 Koeber r. Sturgis, 1278 
 Kooystra v. Buyskes, 404 
 JCoster V. Sapte, 492 
 Kramer v. Waymavk, 778 
 Kynaston r. Kynaston, 1582 
 
 L. 
 
 Labouchere v. Tnpper, 1CS3, 1816 
 Lacey r. Hill, 1309 
 Lachlan v. Reynolds, 936 
 Lacon v. Mertins, 1644 
 Lacroix, In the coods of, 309 
 Lacy V. Rhys, 530, 539 
 Laffer r. Edwards, 113S 
 Laidley v. Lord i^dvocate, 542 
 Lake v. Gibson, 572 
 Laker v. Hordern, 953, 957 
 Larabarde v. Older, 1781 
 Lambe v. Eames. 98, 989 
 Lambcll v. Lambell, 134, 354 
 Lambert, In the goods of, 121 
 
 — V. Austin, 798 
 
 — V. Lambert, 1028, 1224 
 Lambert's Estate, He. 323, 347, 348, 350, 
 
 606, 661, 664 
 Lamine v. Dorrell, 502 
 Laming v. Gee. 1771, 1772, 1892 
 Lamkin v. Babb, 39 
 Lampet's case, 615 
 Lamphier v. l3es]iard, 1045, 1582 
 Lampton v. Collingwood, 1616 
 Lancaster, In the goods of, 162, 180, 182. 
 
 Lancaster v. Evors, 1917 
 Lancaster Society, Ex 2wrfc, 857. 858 
 Lancefield v. Iggulden, 1565, 1588, 1592 
 Land v. Devaynes, 1034, 1191 
 Land Credit Company of Ireland, Re, 
 Markwell's case, 1207, 1822 
 Lander r. Weston, 1724 
 Lane, In the goods of, 196, 203 
 
 — Me, 1187 
 
 — V. Drinkwater, 1775 
 
 — r. Goiidge, 1095, 1099, 1106 
 
 — r. Green, 1018 
 
 — 1-. Lord Stanhope, 930 
 
 — V. Oakes, 660, 663 
 Lanenville r. Anderson, 306 
 Lang V. Lang. 1364 
 
 — V. Pugii, 1093 
 
 Langdale v. Briggs, 175, 176, 177, IGOl 
 
 — V. AVhitfield, 1054 
 Langford, In the goods of, 196 
 
 — V. Gascoyne, 1724, 1728, 1730 
 
 — V. Gowland, 924 
 
 — V. Mahony, 789 
 Langham, Me, 910 
 
 — V. Sanford, 1345,1346,1348, 1349 
 Langhorn, In the goods of, 139 
 Langlev, In the goods of, 491 
 
 — ' V. Hawke, 188 
 
 — V. Lord Oxford, 802 
 Langslow v. Langslow, 1305 
 Langstou v. Langston, 950 
 
 — v. Ollivant, 1708 
 Langton r. Higgs, 887 
 
 Lanoy r. Atholj 754, 1273, 1565 
 Lanphier v. Buck, 975, 1076, 1079, 1134, 
 
 1328 
 Lansdowne, Lord, In the goods of, 87 
 
 — V. Lansdowue, 1296, 1297,1607 
 
 Large's case, 1130 
 Lamer v. Earner, 1054 
 Larpent v. Sindry, 305, 306 
 Lasbury r. Newport, 988 
 Lnsoelles v. Jol)ber, 846 
 Lashbrook r. Cock, 1328 
 Lassence r. Tiernej', 1155 
 La«seur v. Tyrconnel, 297 
 La Terriere v. Buhner, 1243, 1245 
 Latimer's, Dame, case, 1051 
 Lauderdale Peerage Case, 1393 
 Laundv r. Williams, 1240, 1254, 1289 
 Laurie' r. Glutton, 1025, 1487 
 Laury r. Aldred, 220 
 Law, i?j' parte, 261 
 
 — r. Campbell, 405 
 
 — r. Law, 1918 
 
 — r. Thompson, 1087, 1090 
 Lawrence v. Beverley. 603 
 
 — V. Beverleigh, 738 
 
 — V. Lawrence, 732 
 Laws, In the goods of, 259 
 Lawson r. Crofts, 426, 506 
 Lawson V. Hudson, 1568 
 
 — r. Lawson, 689, 690
 
 IXDEX OF CASES. 
 
 Ix 
 
 XXI 
 
 Lawson v. Stitcli, 1022 
 Lawtonr.Lawton, 623,(526, 045,646, 651, 652 
 
 — V. Salmon, 646, 653 
 Laxton v. Eedle, 1096 
 
 Lay, In the goods of, 105 
 Laytield v. Laylield, 21 9 
 Lazonby v. Rawson, 1855, 1894 
 Lea V. Libb, »4 
 Leach, In the goods of, 405 
 
 — V. Jay, 930 
 LeacroftiJ. Maynard, 1102, 1512 
 Leak v. M'Dovvall, 1328, 1341 
 
 Leake v. Robinson, 947, 1093. 1096, 1101, 
 1104, 1113, 1116, 1117, 1319 
 Learoyd v. Whiteley, 1705 
 Leask, Ec, 1904 
 Le Bret v. Papillon, 1849, 1850 
 Le Breton i\ Fletcher, 32 
 Le Briton v. Le Quesne, 363, 405 
 Lechmere v. Brotheridge, 54 
 
 — V. Earl of Carlisl", 583, 603 
 
 — r. Lechmere, 583 
 Ledgard r. Garland, 323 
 Ledsome v. Hickman, 1083 
 Led ward r. Hassell, 1133 
 Leev. Brown, 1262, 1264, 1275 
 
 — V. Cox, andD'Aranda, 1362, 1364,1365 
 
 — V. Egremont, 1174 
 
 — V. Flood, 1208, 1623 
 
 — V. Lee, 988 
 
 — V. Moore, 242, 298 
 
 — V. Nuttall, 884, 892 
 
 — V. Pain, 1015, 1017, 1081, 1083, 1156, 
 
 1158, 1159, 1101 
 
 — V. Eisdon, 625 
 Leech v. Bates, 77, 91 
 
 Leeds Banking Company, 7?r, 1628, 16S3 
 Leeds, Dnke of, v. Aiulierst, 1066 
 Leeke, Mr parU, 1898 
 Leeke v. Bennett, 1253 
 Leeman v. George, 282 
 Leeming, Re, 590, 1566 
 
 — V. Sherratt, 1082, 1093, 1096, 
 
 1097, 1099, 1109, 1334 
 Lees V. Masse}-, 980, 988 
 
 — V. Moseley, 931, 973 
 
 — v. Sanderson, 1729 
 
 Leese, In the goods of, 140. 198, 327 
 Leeson, In the goods of, 377 
 Le Farrant v. Spencer, 1049 
 Legger. Asgill, 1052, 1317, 1319 
 Leggott V. Great Northern Railway Co., 
 
 707, 709 
 Legh V. Holloway, 1697 
 
 — V. Legh, 1585 
 
 Le Grice v. Finch, 1028, 1030, 1186 
 Leigh, In the goods of, 135 
 
 — V. Byron, 956, 957 
 
 — V. Green, Add. 
 
 — V. Leigh, 983, 1081 
 
 — V. Mosley, 1327 
 
 — V. Norbury, 974, 1386 
 
 — V. Thornton, 1640 
 
 Leighton v. B lillie, 1317 
 
 — V. Leighton, 843, 845 
 Le Jeune v. Budd, 1144 
 Lemage v. Goodban, 138, 139, 144, 153 
 Leman v. Newnham, 1568 
 Le Marchant r. Le Marchant, 990 
 
 — V. Commissioners of Iidand 
 
 Revenue, 1468 
 Le Mason v. Dixon, 696, 698, 1602 
 Lemayne v. Stanley, 66 
 Lemme, In the goods of, 299, 306 
 Lenden v. Blackmore, 1385 
 Lenox v. Lenox, 1136 
 Leonard r. Leonard, 1357 
 
 — V. Simpson, 1847, 1865, 1866 
 Leonine r. Leonino, 1572. 1573 
 Lepard v. Vernon, 817, 818 
 
 Lepine, Re, 1316 
 
 — V. Bean, 953 
 
 Le Sage v. C^oussmaker, 1656 
 Lesingham's Trusts, Re, 953 
 Leslie v. Baillie, 1388 
 
 — V. Leslie, 1291, 1292 
 Lethbridge v. Chapman, 1789 
 
 — V. Thurlow, 1166, 1508 
 Lett r, Randall, 1060, 1061, 1362 
 Le Vasseur v. Scratton, 744 
 Leven, In the goods of, 191 
 Leventhorp v. Ashb-re. 598 
 Leverington, In the goods of, 83, 84 
 Levy V. Sale, 1615 
 Lewes's Trust, Re, 265, 1234 
 Lewes v. Lewes, 1154 
 Lewin V. Lewin, 1022, 1221, 1222 
 Lewin's Trust, Re, 12S(i 
 Lewis, In the goods of, 118, 126. 134 
 
 — Re, 581 
 
 — V. AUenby, 915 
 
 — V. Duncombe, 1927 
 
 — V. Lewis, 83, 1572, 1769 
 
 — V. Mathews, 1151 
 
 — V. Morris, 1385 
 
 — V. Nangle, 1569 
 
 — V. Nobbs, 1731 
 
 — V. Bead, 33 
 
 — V. Templer, 1330 
 
 — V. Trask, 1938, 1939 
 Lev, In the goods of, Add. 
 L'Fitt V. L'Batt. 325, 482 
 Lichfield v. Baker, 1040, 1252 
 
 Life Association of Scotland v. Siddal, 
 1278, 1283 
 Liford's case, 621 
 Lightfoot V. Burstall, 1324 
 Lighten, In the goods of, 197, 199 
 Lilford (Lord) v. Att.-Gen., 1462 
 
 — V. Keck, 1302 
 Lill V. Lill, 1330 
 
 Lillcott V. Compton, 1044 
 Lillie V. Lillie, 134 
 Limbery ti. Mason, 127 
 Limbrey v. Gurr, 922 
 Limerick, In the goods of, 87
 
 Lxxi 
 
 ai 
 
 INDEX OF CASES. 
 
 Liininer r. Every, :20.", 110 
 Liiujms r. Arnold, 1^70 
 Liinver r. Evoric, 410 
 Lincoln r. Allen, l/i'O 
 
 — V. Fi'Uiani, 947, 13S6 
 
 — V. AVindsor, 1764, 11)43 
 
 — r. AVri-ht, 1734 
 Lindgron i\ Lindgron, 1067, lOGO 
 Lindsay r. Lindsay, 15S 
 
 Lingen i\ Sowray, fiSO 
 Linley r. Taylor, 910 
 Lintlnvaite v. Galloway, 403 
 Lipscomb r. Li|iscoinb, lf)72 
 Lister r. Bradlcv, 1099, 1104 
 
 — V. Smith," 9.';, 276, 284 
 
 — V. Tidd, 974 
 Little V. Plant, 1836 
 Littleliales c. Gascoyne, 1727. 1750 
 Littlejohns v. Household, 1330 
 Little-ton V. Hibbins, 854, 880 
 Liverpool Borough Bank v. "Walker, 1G18, 
 
 1619, 1621 
 Livesay v. Redfern, 1021, 1032 
 Livesey r. Livesey, 948, 950, 1313 
 Livock, In the goods of, 124 
 Llanwarne, In the goods of, 385 
 Llewelliu, Ite, 1941 
 Llewellvn. He, 1811 
 
 Llewellyn's Trusts, Ee, 1245, 1246, 1250 
 Lloyd, In the goods of, 331, 582, 1193 
 
 — He, 1819 
 
 — v. Branton, 1140, 1142 
 
 — r. Crispe 810 
 
 — V. Finlayson, 478 
 
 — V. Harvey, 1198 
 
 — r. Lloyd, 1100, 1109, 1119, 1131, 
 
 1141, 1324 
 
 — r. Mason, 854, 1282 
 
 — r. Ogleby, 779 
 
 — V. Pughe, 670 
 
 — V. Roberts, 76, 77, 91 
 
 — V. Tench, 1377, 1382, 1384 
 
 — V. Williams, 1281 
 Lloyd's V. Harper, 1660 
 Loane v. Casey, 889, 894 
 Lobley v. Stocks, 1155 
 Loch V. P.agley, 938 
 Lock V. Lake, 355, 358 
 
 — V. Loggin, 824 
 
 — V. Veuables, 1248 
 Locke V. Crosse, 1181 
 
 — V. Dunlop, 942 
 
 — V. James, 130 
 
 — V. Land), 1109 
 
 Locker r. Bradlej', 1106, 1111, 1138 
 Lockhart v. Hardy, 1563 
 Lockier v. Paterson, 698 
 
 — V. Smith, 1178 
 Loder v. Loder, 947 
 Lodge V. Pritchard, 1619 
 Loffus u Maw, 109, 476 
 Loftus, In the goods of, 234, 407 
 Logan V. Bell, 160 
 
 Logan r. Eairlie, 297, 1497, 1498 
 Lomas v. Wright, 870, 954, 1586 
 Lomax v. Holmden, 950 
 
 — V. Lomax, 1582 
 Londesborough, Lord, v. Somerville, 1514 
 London, Bishop of, r. M'Neil, 458 
 
 _ _ r. Webb, 621 
 
 — JLayor of, v. Russell, 1158 
 
 — University v. Yarrow, 915 
 London Chartered Bank of Australia i\ 
 
 Lempriere, 1550 
 London Provincial Bank v. Bogle, 1652 
 Long V. Aldred, 49 
 
 — V. Blackall, 987, 999 
 
 — V. Hughes. 1221 
 
 — V. Long, 1292 
 
 — V. Ricketts, 1143 
 
 — v. Short, 1032, 1565, 1589 
 
 — r. Symes, 227, 230, 231, 232 
 • - V. Wakeling, 466 
 
 — V. Watkinson, 999, 1003, lOOr 
 Longbottom v. Berry. 642 
 
 — v. Longbottom, 1830 
 
 Longchamp r. Fish, 14 
 Longdendale Cotton Co., Hr, 1908 
 Longmore v. Broom, 979, 1750 
 Longstafi' t'. Rennison, 912, 914 
 Longworth v. Bellamj-, 961 
 Lonsdale, Lo'd, v. Berchtoldt, 1154 
 Loomes v. Stotherd, 851, 889 
 Loosemore v. Knapman, 1565 
 Lopes V. Hartley, 492 
 Lord Advocate i: Roberts' Trustees, 144ff 
 Lord V. Godfrey, 1252 
 
 — V. Colvin, 1394 
 
 — r. Lord, 1644 
 
 — V. Purchase, 1884 
 
 — V. Sutcliffe, 1158 
 
 — V. Wightwick, 1583 
 
 — V. Wormleighton, 261, 1802 
 Lorenz, He, 1824 
 
 Lorimer, In the goods of, 226, 234 
 
 — He, 1820 
 
 — V. Lorimer, 669 
 Loringr. Thomas, 952, 1077, 1078 
 Loscombe v. AVintringham, 919, 92: 
 
 13 
 Louch r. Peters, 1507, 1508 
 Lougher r. AVilliams, 711 
 Lovat (Lord) v. Duchess of Leeds, l.'0& 
 
 — V. Lord Ranelagh, 811 
 Love, Hi; 1937, 1938 
 
 — V. Gaze, 1343, 1349 
 
 — V. Honeybourne, 1676 
 
 — V. L'Estrange, 1093 
 Loveday v. Hopkins, 933 
 Lovegrove v. Coojier, 1549 
 
 — V. Lewis, 414 
 Lovelace, He, 1449, 1450, 1502 
 Lovell and Brady r. Cox, 419 
 Lovesey v. Smith, 1658 
 Lovett, He, 1843, 1912. 1914 
 
 — V. Harkness, 281
 
 IXDEX OF CASES. 
 
 Ixxiii 
 
 Lovett V. Lovett, 40, 1281 
 Lovie's, Leonard, case, 598 
 Low V. Carter, 750 
 
 — V. Smith, 969 
 Lowe, In the goods of, 198 
 
 — V. Fairlie, 297 
 
 — V. Jolliffe, 32 
 
 — V. Peskett, 1181, 1536, 1549 
 
 — V. Thomas, 1053, 1054 
 Lowis V. Kumney, 1699 
 Lowndes v. Lowndes, 1287 
 
 — V. Stone, 970 
 Lowry, In the goods of, 192 
 
 — V. Fulton, 1708, 1724, 1737, 1912 
 Lowson V. Copeland, 1702 
 
 Lowthsr V. Cavendish, 1127, 1128 
 
 — V. Condon, 1120 
 Ley V. Duckett, 351, 756 
 Loyd V. Spillett, 1139 
 Lucas's Will, Ke, 1076 
 Lucas V. Brandreth, 984 
 
 — r. Carline, 1087 
 
 — V. Jenner, 1862 
 
 — V. King, 1273 
 
 — V. Lucas, 376, 668 
 
 — V. Williams, 1671 
 Lucena j;. Lucena, 937, 1332 
 Lucyr. Levington, 713, 716 
 
 — V. Walrond, 1678 
 Luddy, Ee, 1126 
 
 Ludlow, In the goods of, 1045 
 Luffman, In the goods of, 139, 272 
 Luke, In the goods of, 87 
 Lumley -y. Hutton, 1712 
 Lumsden v. Fraser, 581 
 Lush, In the goods of, 190 
 Lushington v. Boldero, 622 
 
 — V. Onslow, 114 
 
 — V. Sewell, 1067 
 
 Lutkins v. Leigh, 1562, 1563, 1564, 1587 
 
 Lutwyche r. Lutwyche, 1372 
 
 Lyairv. Lvall, 1446, 1503 
 
 Lyddall i;.' Dunlapp, 1635, 1639 
 
 Lyddon v. Ellison, 951, 1200 
 
 Lyde v. Russell, 658 
 
 Lygon V. Coventry, 1273 
 
 Lynall's Trusts, Jic, 913 
 
 Lynch v. Bellew, 195, 202 
 
 — V. Paraguay, Government of, 1387 
 Lyne's Estate, Re, 1214 
 
 Lyne's Trust, lie, 960 
 
 Lynn v. Beaver, 1347, 1348, 1349 
 
 Lyon V. Baker, 1764 
 
 — V. Colville, 1157, 1531, 1532 
 
 — V. Mitchell, 966, 972 
 
 Lyons (Mayor of) v. Adv.-Gen. of Bengal, 
 
 924 
 
 — (Mayor of) v. E. Ind. Co., 921 
 Lysaghty. Edwards, 1644, 1645, 1646 
 Lyse V. Kingdon, 1935, 1941 
 
 Lyth V. Ault, 1023 
 Lyttleton v. Cross, 882 
 Lywood V. Kimber, 976 
 
 M. 
 
 Maas v. Sheffield, 48 
 Mabbett, lie, 1061 
 Maberly v. Turton, 1272, 1273 
 M'Adam v. Walker, 22 
 ]\Iacartney v. Blundell, 1630 
 Macaulay v. Philips, 751, 752 
 M'Cabe, In the goods of, 125, 168 
 M'Carogher r. Whieldon, 1167, 1196 
 Machu, F.e, 1130 
 M'Cleland v. Shaw, 1579 
 M'Clellan, Ee, 1944 
 I\I'Clure V. Evans, 1199 
 M'Cormickt;. Garnett, 1175, 1283 
 
 — V. Grogan, 1350 
 M'CuUoch T. Dawes, 1699 
 McDermott v. Kealey, 1270, 1291 
 
 — V. AVallis, 1329 
 M'Donald v. Bryce, 1058, 1293, 1330 
 Macdonald v. Carrington, 767, 1782, 1833 
 
 — r. Irvine, 1038, 1039, 1040, 
 
 1251, 1252 
 
 — V. Walker, 830 
 M'Donnell r. Prendergast, 231, 390 
 M'Dougall r. Robertson, 783 
 McEwan v. Crombie, 1938 
 McGowan, In the goods of, 459 
 M'Gregor r. M'Gregor, 975, 1082, 1326, 
 
 1328 
 McHenry r. Lewis, ISOl 
 Mackay v. Mackreth, 717 
 McKechnie v. Yauglian, 1017 
 Mackellu Winter, 1090 
 Mackenzie v. Mackenzie, 998, 1156 
 
 — V. Taylor, 1715, 1947 
 
 — V. AViiitworth, 813 
 Mackett v. Mackett, 990, 1409 
 Mackie v. Mackie, 1039, 1247 
 Mackinnon !•. Peach, 1081, 1158 
 
 — V. Sewell, 1135 
 Mackintosh r. Barber, 807, 823 
 
 — V. Trotter, 658 
 M'Lachlan v. Taitt, 1106 
 MaclareniJ. Stainton, 1248, 1303, 1526 
 Maclean v. Dawson, 446, 1915 
 M'Lean v. Longlands, 670 
 
 M'Leod V. Annesley, 1705 
 
 — V. Drumnioud, 561, 802, S03, 806 
 M'Leroth r. Bacon, 984, 989 
 Macleur v. Macleur, 248 
 M'Mahoni'. Burchell, 1175 
 
 — r. Rawlings, 297 
 M'Murdn, In the goods of, 105 
 M'Myn, lie, 836, 1655 
 ^Macnamara v. Jones, 1769 
 M'Neillie v. Acton, 1689, 1816 
 Macnichol, Ee, 1530 
 Macnin v. Coles, 381 
 Macoubrey v. Jones, 951 
 
 Macpherson v. Macpherson, 1243, 1245, 
 1247, 1727 
 McRea, Ee, 1907, 1909, 1945
 
 Ixxiv 
 
 INDEX OF CASES. 
 
 Macrei£;lit, 7.V, 1307 
 M'Voagli, 7iV. 1887 
 M 'Vicar, In the goods of, IGO 
 Madan r. Taylor, 13;54 
 Maddison r. Alderson, 109 
 
 — r. Andrew, 773 
 
 — r. Cliapnian, 1305 
 Maddock, In the goods of, 83, 84 
 
 — V. Legg, 974 
 JIaggi, AV, 858, 8(31 
 JIahon r. Savage, 980, 981 
 ^Maiuwaring i: Baxter, 1284 
 
 — r. Beevor, 944 
 
 Maitland v. Adair, 1073 
 Major r. Lansley, 744 
 
 — r: Major, 851 
 
 — v. Williams, 168 
 Malcolm r. Jlalcolm, 937 
 
 — r. iMartin, r294, 1295, 1296, 1386 
 
 — r. O'Callaghan. 1142, 1143 
 JIalcn, In the goods of, 71 
 Maley, In the goods of, 121 
 
 Maltass r. Maltass, 304, 305, 1387, 1392 
 
 Manby v. Manby, 1843 
 
 Slanchester and Sonthport Railway, Ec, 582 
 
 Mander, AV, 18(3 
 
 Mangin r. Mangin, 1055 
 
 flange)' v. Hungerford, 672 
 
 Manly, In the goods of, 189 
 
 Mann, Ex parte , 1173 
 
 — In the goods of, 60, 301, 451 
 
 — V. Bnrlingliam. 915 
 
 — r. Copeland, 1021, 1032, 1533 
 
 — r. Fuller, 1157, 1162 
 
 — r. Lang, 1855 
 
 — r. Thompson, 941, 942, 944 
 Manners v. Furze, 1881 
 
 — V. Mew, 806 
 Manning's case, 615, 1253 
 Manning, Me, 1899 
 
 — r. Herbert, 1120 
 
 — f. Knap]), 370 
 
 — r. Purcell, 483, 1049. 1052, 1698 
 
 — f. Spooner, 1532, 1591, 1592 
 
 — V. Thesiger, 1156 
 Mannox r. Greener, 1584 
 Mansel, AV, 1899, 1941 
 I^Iansfield v. Shaw, 281 
 Mantonv. Tabois, 1045, 1186, 1187 
 Mapp r. Ellcock, 1345 
 
 Mara v. Quin, 1853, 1863 
 Maraver, In the goods of, 59, 303 
 March, lie, 961, 1327, 1449 
 
 — V. Att.-Gen., 909 
 
 — r. Fowke, 1581 
 
 — V. Head, 1280 
 
 — r. Ptussell, 1205, 1203, 1313, 1314 
 Marchant, In the goods of. Add. 
 Mardall r. Thellusson, 1781, 1846 
 Margary v. Robinson, 68, 71 
 Marlborough, Duke of, r. Godolphin, lOSO 
 
 — Executors of, v. 
 
 AVidmore, 1786 
 
 I^Iarples v. Bainbridge, 1141 
 
 ]Marrctt. AV. 1395 
 
 Marriot v. Marriot, 468, 474, 478 
 
 — r. Thompson, 889 
 Marriott r. Abell, 1330, 1331 
 Marris v. Burton, 1510, 1511 
 Marsden, Be, 1691, 1876, 1898 
 
 — r. Kent, 1718, 1719 
 
 — r. Saville Street Foundry Co., 
 
 724 
 Jlarsli. Ae, 1322 
 
 — r. Evans, 1222 
 
 — r. Hunter, 1717 
 
 — V. Marsh, 73, 85, 170, 317, 982 
 
 — T. Tyrrell, 34, 41, 53 
 Jlarshal r. Crutwell, 669 
 J!tlarshall, In the goods of, 444 
 
 — V. Baker, 975 
 
 — V. Blew, 679 
 
 r. Bremner. 1039, 1252 
 
 — V. Broadhurst, 763, 1597, 1689 
 
 — V. Collett, 1003, 1U04 
 
 — V. Crowther, 1247 
 
 — V. Holloway, 1270, 1647, 1648, 
 
 1765 
 
 — V. Winder, 1862 
 Marston v. Downes, 1858 
 
 — V. Roe dem. Fox, 161 
 :Martelli v. Holloway, 940 
 
 Martin, In the goods of, 58, 82, 158, 204, 
 
 323 
 
 — r. Crompe, 734 
 
 — r. Crump, 1774 
 
 — T. Drinkwater, 1157, 1161 
 
 — V. Fuller, 255, 342 
 
 — V. Glover, 1002, 1385 
 
 — r. Hobson, 1065 
 
 — V. Holgate, 975, 1079 
 
 — r. Baking, 319 
 
 — V. Lee. 940 
 
 — r. JIartin, 1090, 1269, 1273, 1291, 
 
 1292 
 
 — V. Rebow, 1346 
 
 — V. Robinson, 281 
 
 — V. Roe, 1612 
 
 — V. Swannell, 971 
 Martindale, In the goods of, 400 
 Martineau v. Rede, 379 
 
 — V. Rogers, 937 
 Marzetti v. Williams, 1632 
 Maskeline r. Harrison, 427 
 Mason's Will, He, 1056, 1086 
 Mason, Be, 1212, 1213 
 
 — v. Bateson, 957 
 
 — V. Biogg, 1587 
 
 — V. Broadbent, 1927 
 
 — V. Clarke, 947, 977 
 
 — V. Farnell, 1227 
 
 — r. Lambert, 1609 
 
 — r. Morgan, 739 
 
 Masonic & General Life Assurance Co., 
 He, 256, 1803 
 Massey r. Banner, 1704, 1721
 
 TNDEX OF CASES. 
 
 Ixxv 
 
 Massey r. Hudson, 770 
 Master v. Laprimaudaye, 1080, 1324 
 Masterman v. Maberley, 94, 95, 138 
 Masters v. Barnes, 1913, 1914 
 
 — r. Masters, 917, 1156, 1159, 1220 
 Matcliwick v. Cock, 941 
 
 Mather r. Fraser, 612, 646, 649, 653 
 
 — V. Scott, 914 
 
 — V. Thomas, 1057 
 
 Mathews r. Mathews, 1163, 1164, 1166 
 Matson v. Swift, 547, 548, 549, 580 
 Matthesoii v. Hardwicke, 1567 
 Matthews v. Brise, 1709, 1720 
 
 — V. Maude, 1302 
 
 — V. Newby, 1952 
 
 — r. Pahuer, 1909 
 
 — r. Paul, 947, 948, 949 
 
 — r. Phillips, 1788 
 Matthias, In the goods of, 88 
 Matthison r. Clarke, 1764 
 Mattison v. Tanfield, 1385 
 Maud v. Maud, 936, 978, 1123 
 Maundy v. Maundy, 38 
 Maxwell ■^^ Maxwdl, 1308, 1584 
 
 — V. Wettenhall, 1286 
 May, In the goods of, 167 
 
 — Jie, 884, 892 
 
 — V. Bennett, 1212, 1213, 1259 
 
 — V. Dowse, 1887 
 
 — V. Lewin, 1347 
 
 — V. Newton, 1920, 1921, 1922 
 
 — r. Wood, 1095 
 
 — V. Woodward, 1617 
 May bank v. Brooks, 1075 
 Maychell, In the goods of, 384 
 Mayd, In the goods of, 158 
 
 — V. Field, 1550 
 Mayer, In the goods of, 382 
 
 — r. Murray, 1772, 1891 
 Mayhew, T.c, 1936 
 
 — r. Newstead, 404 
 Maynard r. Wright, 937, 975 
 Mayor of Berwick v. Murray, 1756 
 
 — Favershani r. Ryder, 915, 918 
 
 — London r. Russell, 1158 
 
 — Lyons r. Adv. -Gen. of Bengnl, 
 
 924 
 
 — — V. E. I. Company, 921 
 Mayott V. Mayott, 965 
 
 Meaclier v. Young, 1272 
 Mead, Ee, 686, 689 
 
 — V. Orrery, 802, 1227, 1232 
 Meadows v. Duchess of Kingston, 470, 473 
 
 — V. Parry, 1134 
 Measure v. Carleton, 1024 
 Medland, Jlc, 1810 
 Medlicot v. ]5owes, 1903 
 Medlycott v. Asheton, 132 
 Meek v. Devenish, 580 
 
 — V. Kettlewell, 1658 
 Megit V. Johnson, 370, 1386 
 Megson v. Hindle, 954, 957 
 Meinertzagen v. Walters, 1197, 1371 
 
 Meldrum v. Scorer, 1917 
 Melhuish v. Milton, 474 
 Mellandr. Gray, 1751, 1753 
 Mellick V. Asylum, 920 
 Mellor V. Daintree, 933, 935 
 Mence v. Bagster, 1326 
 
 — V. Mence, 1348 
 Mendes 1'. Guedalla, 1721, 1730 
 Mendhain r. Williams, 1114 
 Mentney v. Petty, 360, 1382 
 Menzies v. Pulbrook, 280, 377, 378, 382 
 Mercer, In the goods of, 87 
 
 — V. Hall, 1144 
 
 — V. Morland, 363 
 Merchant v. Driver, 567, 1692, 1865 
 Merchants' Bank r. Birch, 1874 
 Meredith's Trusts, He, 1321, 1322, 1324 
 Meredith, In the goods of, 152 
 
 — v. Farr, 956 
 Merrick's Trusts, He, 1078, 1079 
 Merrill v. IMorton, 963 
 Merritt, In the goods of, 152 
 Merry r. Hill, 1109 
 
 — V. Ryves, 1144 
 ]\Ierryweather v. Turner, 276, 277 
 i\Iersey Steel and Iron Co. v. Kaylor, 858 
 Meryon r. Collett, 1005 
 
 Messenger v. Andrews, 1153 
 
 — V. Clarke, 661 
 Metcalfe, In the goods of, 441 
 
 — He, 1210 
 
 — v. Metcalfe, 1131 
 Metham v. Duke of Devon, 954 
 Methuen v. Methuen, 145, 171, 291 
 Methuen and Blore's Contract, lie, 1317 
 ilette V. Mette, 160 
 
 Metters v. Brown, 343 
 Meux V. Bell, 1727 
 Mews V. Mews, 668, 670 
 Meyer r. Montriou, 1883 
 
 — r. Simonsen, 1245, 1249 
 
 — V. Townsend, 1138 
 Meyrick ■!'. Anderson, 217 
 Michel's Trusts, Ee, 902 
 Michell V. Michell, 1581, 1582 
 
 — V. Wilton, 1212 
 ]\Iichlemore v. Mudge, 744 
 Micklethwaite, Ec, 1446 
 Middlehurst i: Johnson, 289 
 Middleton, In the goods of, 130, 131, 354, 
 
 414 
 
 — Ec, 1947 
 
 — V. Cater, 916 
 
 — V. Clitherow, 919 
 
 — V. Dodswell, 1881 
 
 — V. Messenger, 944 
 V. Middleton, 1564 
 
 — V. Poole, 1883 
 
 — V. Sherburne, 473 
 
 — V. Spicer, 1342 
 Middlcton's case, 343, 553 
 Mid Kent Railway, Ee, 1113 
 
 Midland Counties Railway v. Oswin, 591
 
 Ixx 
 
 XVI 
 
 INDEX OF CASES. 
 
 ^lilau Trannviiys Co., 7iV, 1780 
 ililes V. Duriiloril, 806, 827 
 
 — V. Harrison, 8;")! 
 
 — V. Miles, 177, 1302 
 Millar v. Sheppard, '287 
 Millard v. Bailey, 1070, 1303 
 Miller, In the goods of, 3-2-2 
 
 — r. Brown, 49 
 
 — V. Huddlestone, 1212, 1213, 1214, 
 
 1220, 1223 
 
 — V. James, 802 
 
 — V. Little, 1024 
 
 — V. Miller, 686, 687 
 
 — V. Race, 1042 
 
 — V. Sheppard, 322 
 
 — V. Thurgood, l'30:> 
 
 — V. Travers, 1013, 1067 
 
 — V. "Warren, 1083 
 
 — V. AVashington, 3G5 
 Milligan, In the goods of, 106, 460 
 Mills, Jle, 1324, 1811 
 
 — V. Brown, 1035, 1037 
 
 — V. Drewett, 1212, 1922 
 
 — V. Milhvard, 120 
 
 — V. Eobarts, 1291, 1293 
 Milltown r. Trench, 1288 
 Milne v. Gilbart, 983 
 
 Milner v. Harewood, 1002, 1542 
 
 — V. Mills, 1643 
 
 — V. Milner, 1068, 1127 
 Milnes, In the goods of, 441 
 
 — v. Fuden. 94, 96 
 
 — r. Slater,' 930, 1346 
 Milroy v. Lord, 670 
 
 — V. Milroy, 1099, 1100 
 Milward v. Moore, 825 
 Miner v. Baldwin, 1212 
 Minor's Trusts, Fie, lu96, 1108 
 Minors i: Battison, 1090, 1091 
 I^linshull, In the goods of, 385 
 :Minter v. Wraith, 988, 999 
 Mirehouse v. Scaife, 1588 
 Mitchell's Estate, lie, 910 
 Mitchell, In the goods of, 316 
 
 — IlC, Cunningham, Ex -farte, 
 
 1398 
 
 — r. Card, 312 
 
 — V. Holmes, 375 
 
 — V. Mitchell, 1048 
 
 — v. Moorman, 375 
 
 — v. Thomas, 290 
 Mitchelson v. Piper, 883, 884 
 Mitcheson, In the goods of, 130, 134 
 Mitford V. Mitford, 753 
 
 — V. Eeynolds, 918, 920, 921, 922 
 Mocattav. Lindo, 1114 
 
 Moert V. Moessard, 1830 
 Mofiat f. VanMillingen, 787 
 Molfett r. Bates, 1649 
 Moggiidge V. Thackwell, 902, 903, 924, 
 
 1157 
 Mole V. Mole, 1270, 1291 
 Molony v. Kennedy, 54, 661, 755 
 
 Molvneux v. Rowe, 154, 1047 
 Morick V. Monck, 1195, 1199 
 Monday, In the goods of, 323 
 Moneypeuny v. IJristow, 165 
 
 — V. Brown, 39 
 
 Monk, Be, 877, 1611 
 Monkhouse v. Holme, 1104 
 Jlonsell V. Armstrong, 423 
 Moutacute, Lady, v. Maxwell, 666 
 Montagu v. Nucella, 935, 978 
 Montagues Montague, 1194, 1195 
 
 — • v. Sandwich, 1054 
 Montefiore v. Guedalla, 1196, 1197 
 Montford r. Cadogan, 1613 
 Montgomerie v. Woodley, 1293 
 Montgomery v. Montgomery, 973 
 Monyiienny v. Bristow, 1604 
 Moodie v. Bannister, 1700, 1800 
 
 • — V. Garnance, 726 
 Mood)', Ex iKirte, 1898 
 Moons V. De Bernales, 477, 1803 
 Moort-. Barham, 358, 1:^82 
 — %: Raisbeck, 582, 1193 
 Moore, In the goods of, 349, 495, 1881, 
 1953, Add. 
 
 — Re, 1128, 1129 
 
 — v. Barber, 54, 666 
 
 — V. DarelL 1392, 1399 
 
 — V. Darton, 688, 692 
 
 — V. Frowd, 1760, 1942 
 
 — r. Godfrey, 1254 
 
 — V. Hudson, 1931 
 
 — V. King, 79, 83 
 
 — V. Meyuell. 1931 
 
 — V. Moore, 152, 670, 671. 088, 1034, 
 
 1041, 1042, 1186, 1571 
 
 — V. Petchell, 1923 
 
 — V. Prior, 1911 
 
 — V. Whitehouse, 319 
 Moorfoot t'. Chivers, 1869 
 Moorhouse v. Lord, 1394, 1396, 1397 
 Mordaunt v. Benwell, 585 
 
 — r. Clarke, 227, 261 
 
 — V. Hussey, 1348 
 Morant, In the goods of, 232, 234 
 More's, Sir "William, case, 811 
 
 — Trust, Re, 1086, 1125, 1162 
 Moresby, In the goods of, 147 
 Moretoii's case, 699, 700, 762 
 Moreton v. Hopkins, 1607 
 
 Morgan, In the goods of, 95, 97, 140, 366 
 
 — Re, 561, 562, 803, 806, 1519, 
 
 1683 
 
 — V. Aunis, 51, 477 
 
 — V. Earl of Abergavenny, 619 
 
 — r. Britten, 1327 
 
 — V. Knight, 573 
 
 — V. Malleson, 670 
 
 — V. Morgan, 1038, 1039. 1040, 
 
 1245, 1252 
 
 — V. Middlemiss, 1068 
 
 — V. Rarey, 1603 
 
 — V. Thomas, 345, 971, 973, 1186
 
 INDEX OF CASES. 
 
 lxx\ 
 
 ,'11 
 
 Morioe r. Disliop of Dnrliain, 922, 92:]. 
 
 924 
 Morier, Ex park, 1783, 1846 
 Morisou V. Morisoii, 1765 
 Moiley V. Bird, 1027, lOSO 
 
 — r. Polhill, 715, 716 
 
 — r. Reunoldson, 1141 
 iron-all V. Sutton, 934 
 
 Morrellr. Morrell, 106, 293, 315, 316 
 Morrice r. Aylnier, 176, 1056 
 
 — V. Bank of EiigUiud, 1549 
 Morriesoii, Be, 962 
 Morris's Estate, lie, 889 
 Morris, lu tlie goods oC, 418, 495 
 
 — ('. Barrett, 572 
 
 — r. Burroughs, 1139, 1376 
 
 — V. Freeman, 282 
 
 — r. Howes, 994, 998, 1001, 1006 
 
 — r. Livesay, 814 
 
 — r. Livie, 1217, 1261, 1507, 1897 
 
 — r. Morris, 1879 
 Morrison, In the goods of, 407 
 
 — V. Martin, 1017 
 jMorritt v. Douglas, 78 
 Morse's Trust, Jlc, 1122 
 Morse t'. Morse, 943, 947 
 
 — r. Tucker, 1554 
 j\Iortimer, lie, 1334 
 
 — V. Hartley, 936 
 
 — r. Ireland, 830 
 
 — V. Mortimer, 18S0 
 
 — V. Paull, 430 
 
 — V. West, 931, 957 
 
 — V. Slater, 9S7 
 Mortimore v. Mortimore, 987 
 Mortlock's Trust, Re, 1131 
 Mortloek t'. Leathes, 1883 
 Morton, In the goods of, 115, 031 
 
 — V. Hopkins, 700 
 Morwan r. Thompson, 58 
 Moseley's Trusts, Re, 1116 
 Moseley V. Rendell, 789, 1521, 1779 
 iloses V. Grafter, 540 
 
 — V. Levi, 343, 1731 
 JMosley v. AVard, 1295, 1755 
 Moss V. Bardwell, 192 
 
 — V. Cooper, 330, 331, 1350 
 
 — V. Dunlop, 987 
 
 — V. Harter, 1323 
 Mostyu u Mostyn, 1011 
 Moule V. Garrett, 1632 
 Moulson t'. Moulson, 1167 
 Mounsey v. Biamire, 970 
 Mountain v. Bennett, 33, 37, 40 
 Mountfordr. Gibson, 218, 221, 222. 22\ 
 
 344 
 Mousley r. Carr, 1751, 1752 
 Mdyle r. Movie, 1718 
 Mucklow r." Fuller, 1153, 16)1, 1703, 
 
 1735 
 Mudwayr. Croft, 31 
 Muggeridge, Re, 1626 
 Mules V. Jennings, 1489 
 
 Mnllic-k V. JluUiek, 839 
 
 Muliinsr. Smith, 1021, 1026, 1027, 1045 
 
 Munch w. Cockerell, 1724, 1755 
 
 Munday v. Slaughter, 285 
 
 Munn V. Dnnkin, 802 
 
 Munro v. Munro, 1393 
 
 Munroe v. Douglas, 1395, 1397 
 
 Munt V. Stokes, 766 
 
 Murguia, In the goods of, 205, 406 
 
 Murkin 1'. Phillipson, 1120 
 
 Murray v. Addenbrook, 1099 
 
 — r. Blatchford, 821 
 
 — v. E. I. Company, 552, 766, 1785 
 
 — r. Lord Elihank, 751, 1281, 1233 
 
 — V. J(mes, 939, 1134 
 
 — r. Tanered, 1096 
 Mursley v. Grandborough, 565 
 Murton v. Markby, 1040, 1252 
 Musgrove r. Brooke, 1130, 1139 
 Muskett V. Eaton, 1109, 1113 
 Musson V. May, 874 
 Mussoorie Bank v. Kaynor, 98 
 Mustapha, Re, 686 
 
 Mu.sther, Re, 1076, 1077 
 Mutlow V. Bigg, 580 
 
 — r. Mutlow, 1549 
 Myddleton v. Rusliout, 842, 843 
 Myei's V. Perigal, 910 
 
 Mynn r. Ptobinson, 41. 53, 287 
 Mytton r. Mytton, 1023 
 
 N". 
 
 Nanny v. Martin, 751 
 Napier, In the goods of, 499 
 Napoleon Bonaparte, Re, 263, 321 
 Nares, In the goods of, 355 
 Nash V. Nash, 749 
 
 — V. Morley, 923 
 
 — V. Yclloly, 312 
 
 Nation v. Tozer, 785, 7^6, 820, 1635, 
 
 1642 
 Natt, Re, 1368 
 Nayler, In the goods of, 350, 821 
 
 — r. CoUinge, 642 
 Naylor r. StainsOy, 1:,)3 
 
 — V. Wetherell, 1304 
 Neagle v. Castlehaven, 322 
 Neal V. Hanbury, 697 
 Neate v. Pickard, 169, 172 
 Neathwa}' u Keed, 1330 
 Nector r. Gennet, 1203 
 Needhani's case. 1176. 1178 
 Needham r. Croke, 762 
 Neeves v. Burrage, 812 
 Negus r. Coulter, 909 
 Neil, Re, 1899 
 
 Nelson V. Carter, 1031 
 
 — V. Oldfield, 37 
 
 — V. Page, 1573, 1574 
 
 — V. Serle, 214, 166,i 
 Nelthorpe r. Biscoe, 1312
 
 Ixxviii 
 
 INDEX OF CASES. 
 
 Nevill V. Ro(Uliun, 1330 
 
 — V. Nevill, 115-i 
 Neville r. Fortesouc, 1039, 12u2 
 Nevill r. Drysdale. 11G7 
 
 New ('. Bouaker, 924 
 — i: Jones, 1760 
 Newbegin i: IVll, 851, 1224 
 Nowbold, In the goods of, SoS 
 Newbolty. Price. 1011 
 Newcastle Banking Company v. Hymers, 
 
 1203 
 Newcome v. Beloe, 381 
 Newell f. National Pro V. Bank of England, 
 1781, 16-lG 
 
 — V. Weeks, 275, 277, 279 
 Newill r. Newill, 947, 977, 1327, 1409 
 Newland v. Att.-Gen., 1010 
 
 — V. Champion, 1916, 1917 
 Newman, In the goods of, 80 
 
 — V. P.arton, 1312, 1313 
 
 — r. Bateson, 1287 
 
 — V. Beaumond, 490 
 
 — v. Newman, 1045, 1109 
 
 — V. Nightingale, 977 
 
 — V. PieWey, 1018, 1019 
 Newmarch, lie, 1571, 1574 
 Newport v. Kynaston, 1156 
 
 New Sombrero Phosphate Co. r. Erlanger, 
 
 1600 
 Newton's Trusts, Ee, 969 
 Newton, In the goods of, 444, 495 
 
 — V. Bennet, 1751, 1752 
 
 — V. Clarke, SO 
 
 — V. Marsden, 1141 
 
 — V. Metropolitan Railway Com- 
 
 panj^, 252, 256 
 
 — V. Newton, 168 
 
 — V. Richards, 1869 
 
 — V. Sherry, 1207, 1822 
 
 — V. AValker, 783. 1873 
 Nicholls ';. Binns, 20, 22, 284, 311 
 
 — r. Judson, 1163, 1164, 1877 
 
 — V. Haviland, 984, 1075 
 
 — V. Nicholls, 95 
 
 — r; Osborn, 1124, 1293 
 Nichols V. Savage, 983 
 Nicholson, In the goods of, 324 
 
 — Jie, 1776 
 
 — V. Tutin, 1760 
 
 — V. Wilson, 988, 996 
 Nickalls, In the goods of, 138 
 Nicol V. Askew, 491 
 
 Nield V. Smith, 1658 
 Nightingale v. Goulburn, 923 
 
 — V. Lawson, 1815 
 
 — V. Lee, 1858 
 Nisbett V. iluiTaj", 1034, 1043 
 Noble V. Brett, 1313, 1314 
 
 — r. Cass, 732 
 
 — V. Phelps, 46, 47, 49, 52, 170, 179 
 
 — V. Stow, 1326 
 
 Noddings, In the goods of, 226, 234 
 Noel, In the goods of, 452, 461 
 
 Noel r. Lord Henley, 1514, 1566, 1582 
 
 — V. .Tones, 1154 
 
 — V. Noel, 1582 
 
 — V. Robinson, 1312, 1313, 1532 
 
 — V. Rochefort, 1297 
 
 — V. Wells 465 
 Noellt). Nelson, 1862 
 Nokes V. Seppings, 1883 
 Norbury V. Norbury, 1705, 1709 
 
 — V. Richards, 1381 
 Norcott r. Gordon, 1217 
 Norden r. Levit, 1537, 1697 
 NDrnian v. I'aldry, 1206 
 
 — V. Bourne. 382 
 
 — • V. Fraser, 1327 
 
 — • V. Kynaston, 154 
 Norman's Trust, lie, 953, 983 
 Norrington, lie, 1719 
 Norris v. Elsworth, 725 
 
 — V. Harrison, 1023, 1302 
 
 — V. Norris, 1190, 1191, 1284 
 North V. Baker, 1612 
 
 — Lord, V. Purdou, 1345, 1348 
 Northen's Estate, Ilr, 939 
 Northey v. Cock, 430 
 
 — V. Northey. 675, 676, 677 
 Northumberland's, Earl of, case, 636 
 Norton, Ex park ^ 1283 
 
 — V. Bassett, 81 
 
 — v. Frecker, 1699 
 
 — V. Glover, 738 
 
 — V. Molyneux, 411, 427 
 
 — V. Norton, 1374 
 
 — V. Relly, 40 
 
 — V. Turvill, 1893 
 Nothardi;. Proctor, 1880 
 Nott V. Stephens, 696 
 Nottley V. Palmer, 1275 
 Nourse v. Finch, 1348 
 No well r. Nowell, 1899 
 Nowlan v. Nelligan, 1127 
 Noyce, Re, 938, 1122 
 Noys -y. Mordaunt, 603 
 Nugee r. Chapman, 1046 
 Nugent r. Giffard, 801, 803 
 Nunn's Trusts, lie, 1011 
 Nunn V. Barlow, 883, 886 
 
 — v. Harve}', 1272 
 
 0. 
 
 Oakes v. Oakes, 1 1 88 
 Oakey v. Dalton, 699, 1799 
 Obee V. Bishop, 1922 
 Oble V. Dittleslield, 1672 
 O'Brien v. Tyssen, 920 
 O'Byrne, In the goods of, 459 
 Occleston v. Fullalove, 954, 957, 959 
 Oceanic Steamship Co. v, Sutherberry, 
 
 SOS 
 O'Connor r. Haslam, 1492, 1923 
 O'Dwyer r. Geare, 52, 182, 327
 
 INDEX OF CASKS. 
 
 Ixxix 
 
 Oddie V. Brown, 1104 
 
 — V. Woodford, 976 
 O'Ferrall, Ex parte, 1175, 1-2S;J 
 Offley V. Best, 493, 494 
 
 — V. Offley, 838 
 Oglander v. Baston, 752 
 Ogle V. Kiiipe, lOot) 
 
 — V. Morgan, 1009 
 Ognel's, Andrew, case, 4t), 732, 798 
 Oke V. Heath, lOSO, 108(5, 1320 
 Okeden v. CliCden, 178 
 Oldfield V. Colibett, 1805 
 
 — V. Preston, 1448, 1458 
 Oldham v. Carleton, 1348 
 
 — ^l Pickering, 1539 
 Olding, In the goods of, 79 
 Oldman v. Slater, 1347 
 Oliphaut, In the goods of, 100, 191, 2G9 
 Olivant v. Wright, 1120 
 Oliver, lie, 84 
 
 — v. Bricklaud, 1364 
 
 — V. Frewen, 1347 
 
 — V. Oliver, 1028, 1279 
 Olney v. Bates, 987, 1086, 1331 
 O'Longhlin, In the goods of, 1041 
 O'Mahoney v. Burdett, 1126 
 Ommaney r. Bevan, 1125 
 
 — V. Stihvell, 1073 
 Ommanneyf. Butcher, 923, 924,1052, 1318, 
 
 1347 
 Oneal v. Mead, 679, 1563 
 Onions v. Tyrer, 119, 126, 155 
 Onslow V. Cannon, 311 
 
 — V. South, 1093 
 Oppenlieim v. Henry, 483, 942 
 Ord, Ee, 175, 176, 177, 1060, 1302 
 
 — V. Fenwick, 762 
 
 Orford r. Churchill, 952, 959, 975 
 Oriental Bank, Ec, Ex 2Jartc The Crown, 
 
 858 
 Orleans, Duchess of, lu the goods of, 306, 
 
 388, 420 
 Orme v. Broughton, 713 
 Ormonde v. Kynnersley, 622 
 Orrnston, Ec, 1949 
 Orfien, Ee, 1173 
 Orr V. Kaines, 841, 1312, 1315 
 
 — V. Newton, 230, 1717, 1737 
 Orr-P:winfr, Er, 1528, 1529 
 Orrcll V. Orreli, 1305 
 
 Orton V. Smith, 312 
 Orton's Trust, Ee, 1079 
 Osborn v. Brown, 1145 
 
 — V. Morgan, 659, 738, 1279 
 Osborne to Kowlett, 830 
 
 — r. C'rosbern, 1615 
 
 — V. (iuy's Hospital, 1656 
 
 — r. Leeds. Duke of, 1158, 1159 
 
 — V. Rogers, 217, 218, 220, 221 
 Osmond v. Fitzrov, 34 
 
 — r. Tindail, 957 
 Oswald, In the goods of, 293, 315 
 Other V. Ivison, 1620, 1622 
 
 Otley Railwa}'-, Ee, 176 
 Ottley V. Gili.y, 1936 
 Oughton V. Seppings, 253 
 Ouseley V. Anstruther, 1034, 1049, 1008, 
 
 1582 
 Overend v. Gurney, 1162 
 Overend Gurney v. Gurney, 1000 
 Overhill's Trusts, Ec, 955, 957 
 Overington v. Ward, 1881 
 Overton v. Sydhall, 1633 
 Ovey, Ee, 924, 1019, 1035, 1576 
 Owen's Trusts, Ee, 947, 977 
 Owen V. Bryant, 956, 957 
 
 — V. Delamere, 1682, 1900 
 
 — V. Owen, 810, 1080, 1336, 1338, 
 
 1543 
 
 — V. Williams, 287 
 Owston, In the goods of, 13 
 Owthwaite, Ee, 1710 
 Oxenden v. Lord Compton, 590 
 Oxenhami'. Clapp, 218, 219, 223, 878, 881 
 
 Pack v. Bathurst, 1550 
 Packer v. Packer, 1280 
 Packham v. Gregory, 1087, 1096, 1099, 
 1106, 1107, 1108, 110S> 
 Packington v. Culliford, 1603 
 Packman's case, 425, 503, 1837 
 Padbury v. Clark, 1305 
 Paddon v. Eichardson, 1703 
 Paddy, E.v parte, 256 
 Padget V. Priest, 209, 216, 21S, 221 
 Padwick v. Scott, 1833 
 V&ge, Ee, Add. 
 
 V. Donovan, 67 
 V. Leapingwell, 
 
 1033, 1058, 
 
 1214, 
 121t> 
 
 — V. Maj', 1137 
 
 — V. Page, 1326, 1336, 1337, 1338 
 
 — V. Soper, 998 
 
 — V. Young, 1024, 1025, 1026, 1058 
 Paget V. Grenfell, 1168 
 
 — V. Huish, 1022 
 
 — V. Read, 1743 
 
 Paice V. Archbishop of Canterbury. 839 
 Pain V. Benson, 1082 
 Paine V. Hyde, 1132 
 
 — V. Wagner, 946, 947 
 Painter v. Salisbury, 1326 
 Palgrave r. Wyndhani, 699 
 
 Paliuy. Hills, ioOO, 1003, 1005, 1006, lOOJ 
 Palmer's Trusts, Ec, 937 
 Palmer v. Cohen, 778 
 
 — V. Craufurd, 1061 
 
 — 0. Dent, 274 
 
 — V. Geirard, 1367 
 
 — V. Jones, 1941 
 
 — V. Litherhani, 500 
 
 — V. Litherland, 425, 426 
 
 — V. Mitchell, 1714
 
 XXX 
 
 INDEX OF CASES. 
 
 rahner v. Newell, 1323 
 
 — V. Keitlensteiii, 7S4 
 
 — r. Trevor, 127 (i 
 
 — V. Waketielil, 17-12 
 
 — V. "Waller, ISGo 
 
 — V. "Wliitniore, 550 
 raiikluu-st V. Howell. 1-200 
 Paiinel v. Fen, 819, 1759 
 Paunell v. Hurlev, S(i() 
 
 — V. Taylor, 1930, 1931, 1932 
 Papillon V. Papilloii. 11(37 
 Paradiee v. SliepparJ, 1804 
 Paramour r. Yardley, 1228, 1231, 1237 
 Pai'do V. Bingham, 1842 
 
 Pardee v. Price, 1830 
 
 Parfittv. Lawless, 40, 44, 100 
 
 Parker's Will, Ee, 1821 
 
 Parker, In the goods of, IOC, 403, 1080 
 
 — lie, 911, 964, 905. 1100, 1495, 
 
 1881, 1953 
 
 — V. Atfield, 1S52 
 
 — V. Baylis, 1542 
 
 — V. Biscoe, 165 
 
 — V. lirooke, 661 
 
 — V. Clarke, 973 
 
 — V. Constable, 000 
 
 — V. Dee, 882, 1802 
 
 — V. Felgate, 289 ■ 
 ■- V. Golding, 1099 
 
 — V. Harvey, 1592 
 
 — V. Hickmoott, 319 
 
 — r. Hodgson, 1119 
 
 — V. Kett, 223, 502 
 
 — V. Lechmere, 670 
 
 — V. Marchant, 931, 1009. 1040, 1015. 
 
 1046, 1048, 1052, 1063, 1299 
 
 — V. Morley, 1208 
 
 — V. Nickson, 148 
 
 — V. Kingham, 883 
 
 — V. Tootal, 942 
 Parkin, Ee, Add. ^ 
 Parkin v. Bainbridge, 99 
 
 — V. Knight, 971, 978. 1106 
 Parkinson's Trusts, Jlc, 989. 990, 991 
 Parkinson r. Thornton, 26U 
 Parnall v. Parnall, 98 
 
 Parnellr. Lyon, 1143, 1145 
 Parnham's Tru.sts, Ee, 1131 
 Parr, In the goods of, 125 
 Parrott, He, 961 
 
 _ V. Worsfold, 1021, 1021, 102S 
 Parry v. Ashley, 1544 
 
 — V. Harbert, 809 
 
 — V. Warrington, 1217 
 Parry and Daggs, Ee, 1126. 1131 
 Parsons v. Coke, 979 
 
 — r. Freeman, 1570 
 
 — V. Gulliford, 1076 
 
 — V. Hancocke, 1861 
 
 — V. Lanoe, 157 
 
 — V. JIayesden, 215, 345 
 
 — r. Parsons, 719, 969 
 Partington, Ee, 1809 
 
 Partington v. Att.-Gen., 351, 540 
 Partridge's case, 327 
 Partridge v. Baylis, 1106, 1138 
 
 — V. Court, 764, 765, 1537 
 
 — V. Partridge, 1187, 1188 
 
 — V. Pawlet, 1340 
 Paske V. Ollat, 99, 100 
 Pass V. Diindas, 1735 
 Passmore v. Passmore, 97 
 Patch V. Graves, 154 
 Patching v. Barnett, 1947 
 Patersou v. Rolland, 1328 
 
 — V. Scott, 1589 
 Patience, Ee, 1394 
 Paton r. Sheppard, 1049 
 Patten r. Pauton, 256 
 
 — r. Patten, 554 
 
 — r. Poultou, 134 
 Pattison v Pattison, 1187, 1385 
 Patton V. Randal], 576 
 
 Paul r. Children, 957 
 
 — r. Compton, 944 
 
 — V. Nettleford, 843 
 
 — r. Wilkins, 581 
 Paule V. Moodie, 233 
 Paull V. Simpson, 214, 1636 
 Pawletti;. Pawlett, 1118 
 Pawson V. Pawsou, 1059 
 Paxton, In the goods of, 455, 458 
 
 — r. Douglas, 883, 1911 
 Payne r. Little, 1814, 1896 
 
 — V. Low, 1275 
 
 — V. i\Iortimer, 871 
 
 — V. Trappes, 133, 169 
 
 — V. AVebb, 1385 
 Peacock r. Colling, 1940 
 
 — r. Lowe, 346, 479 
 
 — V. ^lonk, 673 
 
 — V. Stoekford, 936 
 Peacocke v. Pares, 951 
 Peake v. Ledger, 1803 
 Pearce, Ee, 1495 
 
 — V. Carrington, 942 
 
 — r. Edmeade.s, 1329, 1386 
 
 — V. Vincent, 988 
 Peareth v. ^Marriott, 1508 
 Pearks v. Moseley, 1116 
 
 Pearman v. Peariuan, 1093, 1099, 1109 
 Pearn, In the goods of, 69, 78 
 Pears v. Wilson, 1831 
 Pearse, In the goods of, 86 
 
 — r. Pearse, 545 
 Pearson r. Arclideaken, 1203 
 
 — r. Bank of England, 721 
 
 — V. Casamajor, 1330 
 
 — V. Dolman, 1104 
 
 — v. Helliwell, 1212 
 
 — V. Henry, 1666, 1675, 1676 
 
 — V. Pearson, 76, 78, 1239, 1240, 
 
 1286, 1288 
 
 — r. Putter, 937 
 
 — V. Stephen, 972 
 Pease r. Mead, 697
 
 INDEX OF CASES. 
 
 Ixxxi 
 
 Pease v. Nay lor, 1852 
 
 — V. Pattinson, 921 
 Peat V. Chapman, 1080, 1326 
 
 — V. Crane, 1709, 1724 
 Pechell V. Hilderley, 308 
 
 — V. Jenkinsou, 64, 114 
 Peck, In the goods of, 385, 418 
 
 — V. Parrott, 772 
 Peckham's case, 506 
 Peek's Trusts, He, 1099 
 Peek V. Gurney, 1600 
 Peel V. Catlow, 975 
 Pegg V. Chamberlain, 446 
 Pelham v. Anderson, 917 
 
 — V. Newton, 329 
 Pell's Trusts, Ee, 1079 
 Pembertou v. Cony, 189 
 
 '— V. Pemberton, 133 
 
 — V. Topham, 1916 
 Pembrooke v. Friend, 1572 
 Penley v. Penley, 978 
 Pennant v. Kingscote, 79, 93 
 Pennington, In the goods of, 114 
 
 — V. Buckle}^, 351, 756 
 
 — V. Healey, 1697 
 Penny, In the goods of, 442 
 
 — V. Brice, 1787 
 
 — V. Clarke, 1328 
 
 — V. Penny, 851 
 
 — V. Turner, 979 
 
 — V. Watts, 1827, 1912, 1913, 1915 
 Penry v. Brown, 641 
 
 Penton v. Kobart, 624, 644, 653, 654 
 Pepper v. Bloomfield, 1222 
 Peppercorn v. AVayman, 822 
 Peppin V. Bickford, 960 
 Pei)pitt's Estate, lie, 1880 
 Percival v. Cooke, 1612 
 
 — V. The Queen, 513 
 Percy, Be, 1131 
 
 Peifect V. Lord Curzon, 1114 
 Perkins v. Baynton, 1296, 1326, 1566, 
 1567, 1752, 1753 
 
 — V. Cooke, 1212 
 
 — V. Micklethwaite, 173, 1082 
 Perkinson v. Gilford, 1601, 1603 
 Perrin v. Lyon, 1140 
 
 Perrot v. Austin, 1599 
 
 — V. Perrot, 127, 130 
 Perry, In the goods of, 227, 233 
 
 — Executors of, v. The Queen, 548, 
 
 1086 
 
 — V. Dorset, 1933 
 
 — V. Jenkins, 1785 
 
 — ■;;. Meddowcroft, 1303 
 
 — V. Mervitt, 1131 
 
 — V. Phelips, 883 
 
 — V. Whitehead, 1200 
 
 — V. Woods, 773 
 Perryman v. Westwood, 1871 
 Petchell, In the goods of, 138, 139, 144 
 Peterborough, Bishop of, v. Mortlock, 1220 
 Peters v. Dipple, 1105 
 
 W.E. — VOL. I. 
 
 Peters v. Tilley, 280 
 Peterson v. Peterson, 1315 
 Petit V. Smith, 1353 
 Petre, Lord, v. Heneage, 634 
 
 — V. Petre, 1033, 1214, 127S 
 Pett V. Pett, 1384 
 Pettifer v. James, 355 
 Pettinger v. Ambler, 1323 
 Petts, Ee, 1015, 1016 
 Petty V. Willson, 1053, 1063 
 Peytoe's case, 700, 702 
 Peyton, Be, 1460, 1467 
 
 — V. Bury, 1144 
 Phayre v. Peree, 1710 
 Pheasant i\ Pheasant, 742 
 Phelps, In the goods of, 88 
 Phene's Trusts, Ec, 264, 979, 1329 
 Philanthropic Society v. Hobson, 1893 
 Philipps V. Chamberlaine, 938, 1058 
 Philips V. Echard, 872 
 
 — V. Philips, 1074 
 
 — r. Thornton, 95 
 Phillipo V. Munnings, 1927 
 Phillii^s, In the goods of, 441, 443 
 
 — Ex parte, 590, 1898 
 
 — Be, 1322 
 
 — V. Barker, 1013 
 
 — V. Beal, 1253, 1700 
 
 — r. Bignell, 841, 842, 846 
 
 — r. Cay ley, 1322 
 
 — V. Everard, 810, 1643 
 
 — V. Garth, 930, 984 
 
 — r. Gutteridge, 1212 
 
 — r. Hartley, 342 
 
 — r. Homfray, 1593, 1602, 1604, 
 
 1605, 1799, 1879 
 
 — r. Jones, 1880 
 
 — r. Parry, 1591 
 
 — V. Phillips, 584, 1179, 1195, 
 1196, 1197, 1493, 1701, 1724, 1800 
 
 Phillipson v. Gatty, 1705, 1724 
 
 — V. Harvey, 842 
 Philliskirk v. Pluckwell, 739 
 Philpot V. Briant, 1667, 1874 
 Philpott V. St. George's Hospital, 914 
 Philps' Will, Be, 969, 979, 1077 
 Phiney v. Phiney, 1373 
 
 Phipps, In the goods of, 104 
 
 — V. Ackers, 1095, 1106, 1112 
 
 — V. Annesley, 1256, 1582 
 
 — r. Earl of Anglesea, 145, 751, 1297 
 
 — i\ Hale, 68, 86 
 
 — V. Steward, 257, 1877 
 
 — V. Williams, 1112 
 Picard v. Hine, 1906 
 Picken v. Matthews, 943 
 
 Pickering v. Pickering, 405, 461, 1037,. 
 1038, 1039, 1252 
 
 — V. Stamford, 902, 1361, 1362, 
 
 1770 
 
 — V. Towers, 192 
 Pickersgill v. Rodger, 1086, 130G 
 Pickford v. Hunter, 1909 
 
 /
 
 Ixx.^ 
 
 Xll 
 
 liNDEX OF CASES. 
 
 Pickup )•. Atkinson, 1035, 1010 
 Pickwick r. Gibbes, 1289 
 Pidgeon r. Pitts, 1181 
 Pierce r. Thonicly, 744 
 Piercy, In the goods of, 81 
 Pierson v. Garnet, 1296 
 Piety V. Stace, 1749, 1754 
 Pigg V. Clarke, 989 
 Piggottf. Green, 1148 
 
 — V. Jefferson, 1924 
 Piggot's case, Jle, 424 
 Pigot and Gascoigne"s case, 185, 416 
 Pigott V. Bagley, 1311 
 
 — V. Waller, 164 
 
 — V. Wilder, 6 
 Pike V. P>adniering, 92 
 
 — V. Fitzgibbon, 1551 
 Pile, In the goods of, 1328 
 Pimm V. Insall, 1560 
 Pinbiiry r. Elkin, 771 
 Piiichard r. Fellows, 1936 
 Pinchon's case, 558, 698, 869, 1666 
 Pinder v. Piuder, 987, 988 
 
 Pine, In the goods of, 385, 400 
 Pinede's Settlement, F,f., 1322 
 Pinney v. Hunt, 241, 487 
 
 — V. Pinney, 254, 1792 
 Piper V. Piper, 1572, 1573 
 Pipon V. Wallis, 406 
 Pistol- V. Dunbar, 1720 
 Pitcher v. Tovey, 1633 
 
 Pitt V. Bridgewater, 1672 
 
 — V. Camelford, 1030 
 
 — V. Pidgeon, 1156 
 
 — r. Pitt, 610, 839, 1522 
 
 — V. Woodham, 844, 847 
 Plant V. Taylor, 1543 
 
 Piatt V. Att.-Gen. of Xew South Wales, 
 
 1392 
 
 — V. Piatt, 1195 
 
 — r. Routh, 550, 1412. 1421, 1482, 
 
 1550 
 Player v. Foxhall, 890 
 Piayfair v. Cooper, 1927 
 I'lavne v. Scriven, 83 
 Plenty v. West, 139, 140, 143, 144, 1582 
 Plume V. Beale, 315, 467 
 
 — V. Plume, 1169 
 Plumer v. Marchant, 1599 
 Plunk et V. Penson, 1546 
 
 — V. Sharpe, 846 
 Plunkett V. Lewis, 1908 
 Plymouth's, Lord, case, 589 
 Pockley v. Pockley, 1562 
 Pocock V. Att.-Gen., 9241 
 
 — V. Reddington, 1754 
 Podmore v. Whatton, 135, 320 
 Pollard V. Doyle, 1762 
 
 — V. Gerard, 1952 
 Pollexfen v. Moore, 581 
 Pollock, Be, 1194, 1199, 1201 
 
 — V. Croft, 1144 
 Pomfret v. Perring, 1323 
 
 Ponton V. Dunn, 1041 
 I'oole's Estate, F.e, 660 
 Poole, Be, 1546 
 
 — V. Bott, 1122 
 
 — v. Terry, 1120 
 
 — V. Wishaw, 1381 
 Pooley, Be, 899, 1762, 1942 
 
 — V. Ray, 1357, 1770 
 Poor V. Myal, 913, 1129 
 Pope V. Pope, 975 
 — V. Whitcombe, 981 
 Popham V. Lady Aylesburj'', 1041 
 Poplar School, Be, *1819 
 Portal and Lamb, Be, 176, 177, 1302 
 Portarlington v. Damer, 1908 
 
 (Lord) V. Soulby, 1801 
 Porter's Trusts, Be, 969, 970, 1075, 1078 
 Porter, In the goods of, 158 
 
 — V. Baddeley, 1245, 1252 
 
 — V. Fox, 1117 
 
 — V. Smith, 173, 1192 
 
 — V. Tournay, 1044, 1049, 1051, 1253 
 Portland v. Prodgers, 59 
 
 Portlock V. Gardner, 1748, 1753, 1922, 
 
 1924 
 Portmore v. Bunn, 720 
 Postlethwaite v. Mounsey, 1895 
 Potinger r. Wightman, 1398 
 Potter V. Baker, 1059 
 
 — V. Chapman, 595 
 
 — ■ V. Commissioners of Inland Revenue, 
 
 1521 
 
 — V. Potter, 164 
 
 Potter's Trust, Be, 1070, 1077, 107S 
 Potts, Be, 1139 
 ■ — V. Leighton. 1759 
 
 — V. Potts. 639 
 
 — V. Smith, 1221 
 
 — V. Ward, 782 
 Poulet V. Poulet, 1118 
 Pountney, In the goods of, 351, 413 
 Powel V. Cleaver, 1200 
 
 Powell's Trusts, Be, 1052, 1321 
 Powell, In the goods of, 67 
 
 — V. Aiken, 1606 
 
 — V. Att.-Gen., 917 
 
 — i\ Evans, 1692, 1703, 1717, 1724 
 
 — V. Graham, 1599, 1662, 1663 
 
 16G4, 1666, 1673 
 
 — V. Hellicar, 684 
 
 — V. Lay ton, 1603 
 
 — V. MoVgan, 604, 1139 
 
 — V. Powell, 130, 131 
 
 — r. Rawle, 1133 
 
 — V. Rees, 1606, 1608 
 
 — V. Stratford, 190, 194 
 Power V. Hayne, 1062 
 Powers, Br, 1904, 1905 
 Powis, In the goods of, 459 
 
 — V. Andrews, 471 
 Powys r. Blagrave, 1605 
 
 — V. Mansfield, 1195, 1197, 1199, 
 
 1200, 1201
 
 INDEX OF CASES. 
 
 Ixxxiii 
 
 Prater, Re, 1042, 1043 
 Pratt V. Harvey, 913 
 
 — V. Jackson, 1044 
 
 — V. Mathew, 953, 957, 983 
 
 — 17. Pratt, 1371, 1372 
 
 — r. Sladden, 1345 
 
 — V. Stocke, 491 
 
 — V. Swaine, 553, 1785 
 Prendergast r. Lushingtoii, 1040 
 
 — r. Prendergast, 1039 
 
 Presant v. Goodwin, 1154 
 Prescott V. Bouclier, 800 
 
 — V. Long, 944 
 
 President of United States v. Drnnimond, 
 
 1392 
 Prestney v. Mayor of Colchester, 1887 
 Preston' r. Lord Melville, 368, 1389 
 Price, In the goods of, 323 
 
 — Re, 58,"l79, 1178, 1179, 193G 
 
 — V. Dewhurst, 297, 307, 468 
 
 — V. Lockley, 978 
 
 — V. Morgan, 1601 
 
 — V. Moulton, 765 
 
 — V. Page, 1013, 1015 
 
 — V. Parker, 49, 50, 58, 179, 503 
 
 — V. Powell, 117 
 
 — V. Price, 1560 
 
 — V. Strange, 992, 1000, 1366 
 Prichard v. Prichard, 1053, 1054 
 Pride V. Fooks, 936, 975, 1717 
 Pridie v. Field, 1511 
 
 Priestley v. Holgate, 1132 
 Priestman v. Thomas, 241, 470, 487 
 Primrose v. Broiiile}^ 1621 
 Prince's case, 185, 422, 423 
 Prince v. Hine, 1264 
 Pring, Ex -parte, 585 
 Pringle, Re, 1053, 1317 
 
 — V. Pringle, 746 
 
 Prinsep v. Dyce Sombre, 30, 32, 33, 312 
 Prior V. Henbrow, 1624 
 
 — V. Horniblow, 1924 
 Prison Charities, Re, 924 
 Pritchard's Trust, Re, 1330 
 Pritchard v. Arbouin, 913, 919 
 Probert r. Morgan, 678 
 Proctor (The King's) v. Daines, 95, 96, 97 
 Prole V. Soady, 744 
 Prosser v. Wagner, 466 
 Prothero, In the goods of, 444 
 Proud V. Proud, 1927 
 
 — V. Turner, 1370, 1371 
 Proudfoot V. Hume, 1883 
 Proudley v. Fielder, 755 
 Prowse V. Abingdon, 1119, 1121 
 
 — V. Sjnirgin, 1315 
 Pruen v. Osborne, 974, 975 
 Prytherch, Re, 949 
 Puddephatt, In the goods of, 69 
 Pugh V. Arton, 658 
 
 — V. Heath, 1176 
 PuUen V. Ready, 331 
 
 — V. Serjeant, 205 
 
 Pullen V. Smith, 1258 
 Pulling V. Great Eastern 1! ail way Com- 
 pany, 699, 700 
 Pulmaii, In the goods of, 201 
 Pulsfordv. Hunter, 944, 1101, 1102 
 Pulteney v. Darlington, Lord, 583 
 
 ~ V. Warren, 1604, 1607 
 Punchard, In the goods of, 192 
 Purchase r. Shallis, 1067 
 Purdew v. Jackson, 743 
 Purdon v. Purdon, 1786 
 Purefoy v. Rogers, 184, 615, 771 
 Purse V. Snaplin, 1212 
 Pusey V. Desbouverie, 1374, 1375 
 
 — V. Pusey, 636 
 Pybus V. Smith, 1891 
 
 Pye, Ex parte, 1194, 1195, 1200 
 Pyra V. Great Northern Railway Company, 
 
 704 
 
 — r. Lockyer, 1194 
 Pynchyn v. Harris, 594 
 Pyne v. Dor, 621 
 
 — V. Franklin, 946 
 
 — V. Woolland, 220, 1835 
 Pyot ■;;. Pyot, 982 
 
 Pytt V. Fendall, 229 
 
 Q. 
 
 QrATiLES V. Capell, 1561 
 Queade's Trusts, 7iV, 663 
 Queen, The, and Archbishop of Canter- 
 buiy's case, 592 
 Queensberrv 17. Shebbeare, 1800 
 Queen's College 1). Sutton, 1011, 1028 
 
 — Proctor V. Williams, 430 
 Quennell v. Turner, 1067, 1582 
 (^uick V. Ludborrow, 1596 
 
 — v. Quick, 295, 418 
 
 — V. Staines, 561, 562 
 Quicke v. Leach, 1134 
 Quinn v. Butler, 131 
 
 R. 
 
 Radcliffe, iJc, 883, 1850, 1937 
 
 — v. Buckley, 952 
 
 — V. D'Oyly, 1609, 1610 
 Radford «. Willis, 953, 961 
 Radnall, In the goods of, 383 
 Ratienel, In the goods of, 1395 
 Raikes v. Boneton, 1589 
 
 Raine, In the goods of, 8, 273, 316 
 Rains v. Commissary of Canterbury, 491 
 Rainsford v. Taynton, 438, 439 
 Ralph V. Carrick, 974, 975, 976 
 Ramsay v. Shelmerdine, 1081 
 
 — V. Thorngate, 710 
 Ramsay's Settlement, Re, 1443 
 Ramsbottom's case, 1793 
 Ramsbottom v. Buckhurst, 1794 
 
 f1
 
 XXXIV 
 
 INDEX OF CASES. 
 
 Eamsilcn r. Jackson, 1847 
 lianclilVe v. Parkins, 1305 
 Randal v. Randal, 767 
 Randall v. Bookey, 1316 
 
 — V. !Moi'gan, 666 
 
 — V. Payne, 1140 
 
 — V. Rigby, 1599 
 
 — V. Russell, 1051, 1253, 1518 
 Randfield r. Randtield, 155, 900, 1126 
 Rankin r. AVeguclin, 686 
 Kanking's Settlement, Jle, 1327 
 Ranking r. Barnard, 1175. 1281 
 
 Rann r. Hughes, 1666, 1667, 1673, 1833 
 Raphael r. P.oehm, 1296, 1692, 1757 
 Ratclifl'r. Davies, 769 
 Ratclitt'e's case, 359 
 Ratclille r. Barnes, 279, 315 
 
 — V. Winch, 1703, 1911 
 Raven v. Waite, 1288, 1291 
 Ravenscroft v. Frisby, 1927 
 
 — V. Jones, 1197 
 
 — V. Ravenscroft, 492 
 Rawlings v. Jennings, 1045, 1058 
 
 — V. Lambert, 1881 
 Rawlins v. Powel, 1163 
 
 — r. Rawlins, 942, 1291 
 Rawlinson v. Burnell, 380 
 
 — r. Rawlinson, 1191 
 
 r. Shaw, 235, 827, 1182 
 
 — V. Stone, 812 
 Raworth v. ISIarriott, 99 
 Rawson v. Samuel, 1783 
 Rawstone v. Parr, 1622 
 Ray V. Adams, 981 
 
 — V. Ray, 561, 562 
 Raymond v. Brodbelt, 1023, 1294 
 
 — V. De Watteville, 298, 847 
 
 — V. Fitch, 709, 715, 716, 717 
 Rayner v. Green, 229 
 
 — V. Koehler, 216, 1912, 1914, 1915 
 
 — 2;. Mowbray, 980 
 Ravson v. Par ton, 314 
 
 Read's case, 208, 209, 212, 1534 1535 
 Read, In the goods of, 305, 306 
 
 — V. Backhouse, 929 
 
 — V. Blunt, 872 
 
 — V. Brookman, 1703 
 
 — V. Great I]a stern Railway Co., 705 
 
 — V. Snell, 679 
 
 — V. Stedman, 1344, 1345 
 — ■ V. Strangeways, 1068 
 
 — V. Truelove, 228, 1736 
 
 — r. Willis, 946 
 Reddell v. Dobree, 684 
 Redding, In the goods of, 66 
 Redfern, Re, 935 
 
 Reece v. Steele, 931 
 
 — V. Strafford, 349 
 
 Reechr. Kennegal, 1667, 1670, 1673 
 Reed, In the goods of, 377, 459 
 
 — V. Braithwaite. 937 
 
 — V. Devaynes, 1147, 1150 
 
 — V. Harris, 1885 
 
 Rees, In the goods of, 91 
 
 — Jic, 987 
 
 — V. Keith, 747 
 
 — V. Perrot, 600 
 
 — V. Rees, 73 
 
 — r. Watts, 1781, 1846 
 Reeve's Trusts, Ee, 1149 
 Reeve v. Att.-Gen. 924 
 
 — V. Denny, 489 
 Reeves v. Brymer, 1273 
 
 — V. Freelins, 281, 842, 847 
 
 — V. Ward, 838, 1853, 1857 
 Reffell V. Reffell, 291 
 
 Regan, In the goods of, 74 
 
 Reg. V. Commissioners of Stamps, 143^ 
 
 — V. Price, 835, 1678 
 Eehden v. Weslev, 1721 
 
 Reid. In the goods of, 810, 493, 497 
 — ' r. Lord Tenterden, 1639, 1641 
 
 — V. Reid, 57, 660, 662, 1175, 1277,. 
 
 1278- 
 
 — V. Territt, 1908 
 Reitz, In the goods of, 376 
 Remington v. Savage, 615 
 Remnant v. Bremridge, 1638 
 
 — y. Hood, 1120 
 Rendall v. Andrece, 1635 
 Rennell v. Bishop of Lincoln, 593, 594, 
 
 1.'t38. 
 Rennie v. Massie, 313 
 Renvoise v. Cooper, 1057 
 Repington v. Tamwortli School, 594 
 Revel V. Watkinson, 1271 
 Rex V. Barnard Ca.stle, 565 
 
 — V. Barnes, 1792 
 
 — V. Bettesworth, 48, 400, 403, 417, 
 
 418 
 
 — V. Buttery, 477 
 
 — V. Chaplin, 1650 
 
 — • V. Collectors of Customs, 571, 1774: 
 
 — r. Crosse, 643 
 
 — v. Gibson, 477 
 
 — V. Great Glenn, 343, 565 
 — • v. Haines, 1793 
 
 — r. Hay, Dr., 1073 
 
 — v. Hebden, 1875 
 
 — T. Holland, 613 
 
 -- v. Horsley, 554, 556, 566 
 
 — V. Londonthorpe, 641 
 
 — r. Mann, 555 
 
 — r. Otley, 641 
 
 — V. Peck, 723. 1649, 1650 
 r. Rett, 1650 
 
 - V. Portington, Lad}', 901, 904r 
 
 — r. Raines, 187, 232, 1356 
 
 — V. Simpson, 187 
 
 — r. St. Dunstau, 649 
 
 — V. Stone, 250, 251, 565 
 
 — V. Sundrish, 565 
 
 — V. Uttoxeter, 565 
 
 — V. Vincent, 477 
 
 — V. Wade, 850, 1851 
 
 — r. Widwcrthv, 566
 
 INDEX OF CASES. 
 
 Ixxx 
 
 XV 
 
 Kex V. Wright, 35 
 Reynel's, Sir George, Case, 1538 
 Reynish v. Martin, 1119, 1142, 1143 
 Reynolds, In the goods of, 167, 168 
 
 — V. Goodlee, 585 
 
 — V. Kortright, 98, 1319 
 
 — V. Prosser, 1672 
 
 — V. "Wright, 602, 1541 
 Rhoades, In the g<jods of, 371 
 
 — lie, 1324 
 Rhodes, Ee, 264, 1886 
 
 — 17. Barret, 1909 
 
 — V. Haigh, 782 
 
 — V. Muswell Hill Company, 1138 
 
 — V. Rhodes, 294, 316, 929', 932 
 
 — V. Rudge, 1576, 1579, 1580 
 
 — V. Smethurst, 1842, 1843 
 Eice V. Gordon, 804, 1692 
 
 — V. Oatfield, 92 
 
 Rich V. Chamberlaj'ne, 418 
 
 — V. Cockell, 51, 54, 477, 661, 1308 
 
 — V. Frank, 1634 
 Richards, In the goods of, 323 
 
 — Ec, 1287 
 
 — V. Att.-Gen. of Jamaica, 582 
 
 — V. Brown, 1206, 1238, 1858 
 
 — V. Chave, 432 
 
 — V. Delbridge, 670 
 
 — V. Foster, 1492 
 
 — V. Humphreys, 312 
 
 — V. Moloney, llSl 
 
 — V. Perkins, 1881 
 
 — V. Queen's Proctor, 13S, 140 
 
 — V. Richards, 738, 1()20, 1022, 
 
 1903 
 Hichardson, In the goods of, 386, 407 
 
 — Kr parte, 1682, 1688 
 
 — Ec, 1907, 1945 
 
 — V. Bank of England, 1883 
 
 — V. Barry, 150 
 
 — r. Elphinstone, 1164 
 
 — r. Gilford, 1230 
 
 — r. Greese, 1163, 1161, 1166 
 
 — V. Horton, 1559, 1615 1621, 
 
 1622 
 
 — ^K Jenkins, 1559 
 
 — V. Power, 1122 
 
 — V. Richardson, 670, 1328, 1385 
 
 — v. Seise, 403 
 
 — v. Smallwood, 1545 
 
 — r. Spraag, 936, 978 
 
 — V. Youngp, 1839 
 
 — Ee Richerson, Add. 
 Eichmond v. Nicholson, 1608 
 
 — V. White, 887 
 Rickabe v. Garwood, 1385, 1386 
 Packard v. ]5arrett, 1589 
 
 — V. Robson, 921 
 Rickardsr. Muinford, 12G, 133, 134 
 Ricket, Ec, 1010 
 
 Rickets v. Ladley, 1583 
 Rickott V. Guilleinard, 1082 
 Eickctts V. Lewis, 803, 806 
 
 Ricketts v. Turquand, 1069 
 
 — V. Weaver, 716 
 Rickit's Trust, Ee, 1010 
 Rico V. Gualticr, 1932 
 Riddell t;. Sutton, 1676 
 Rider v. Kidder, 669 
 
 — V. Wager, 1171, 1184, 1226, 1563 
 Ridges r. Morrison, 1155, 1159 
 Ridgeway v. Munkittrick, 932, 975 
 Ridgway v. Clare, 1618 
 
 — V. Darwin, 33 
 
 — i: Newstead, 1314 
 
 — V. Woodhouse, 1129 
 Ridout V. Bristow, 1668, 1671 
 
 — V. Plymouth, 678, 680, 1592 
 Rigby, Ex parte, 816 
 
 — V. Strangways, 1908 
 Rigden v. Vallier, 690 
 Right V. Compton, 933 
 
 — V. Price, 81 
 Riky V. Kemmis, 1736 
 Ring 17. Hardwick, 1129 
 
 — V. Jarman, 1447 
 Riiigrose v. Bramham, 941, 942 
 Riordan v. Banon, 1351 
 Ripley, In the goods of, 295 
 
 — V. Moysey, 1946 
 
 — V. Waterworth, 1002, 1539, 1541, 
 
 1542 
 Rippeu V. Priest, 1057 
 Rippin, In the goods of, 124 
 Risdou, In the goods of, 378 
 Rishton v. Cobb, 1016, 1130, 1141, 1143 
 Ritchie v. Rees, 841, 844, 845 
 Rivers, Lord, In the goods of, 445 
 Roach V. Hammond, 979 
 Robarts, In the goods of, 322 
 Roberts, In the goods of, 385 
 
 — Ee, 983 
 
 — V. Burder, 1106 
 
 — V. CoUett, 1277 
 
 — V. Cooke, 1319 
 — - V. Cooper, 1283 
 
 — V. Hignian, 941 
 
 — V. Kuliin, 1048, 1064 
 
 — V. Phillips, 85 
 
 — V. Pocock, 1023, 1031, 1224 
 
 — V. Roberts,157,159,lo75,1583,1893 
 
 — V. Round, 133 
 
 — V. Walker, 1583, 15S4 
 
 — V. Wynn, 38 
 Robertson, Ee, 1820 
 
 — r. Broadbent, 1019, 1034, 1035 
 
 — V. Fraser, 1328 
 
 — V. Powell, 154 
 
 — V. Richardson, 1131 
 
 — V. Smith, 94, 95, 291 
 Robin's case, 208, 427 
 
 Robins 1!. Dolphin, 311, 1398 
 Robinson's Trust, Ee, 1818 
 Robinson, In the goods of. 96, 97, 158 
 
 — Ee, 1807 
 
 — V. Addison, 720, 1026
 
 XXX VI 
 
 IXDEX OF OASES. 
 
 Roluiison r. Bransby, 1171 
 
 — c. Clarke' 138 
 
 — V. Corbott, ISr.l 
 
 — r. Cuniniiiig, l/.'iU 
 
 — r. Davison, 15P7 
 
 — r. Elliott, lf»48 
 
 — r. Francis. 872 
 
 — V. Gee, 871, 1699 
 
 — V. Geldanl, 1021, 1224, 1590 
 
 — V. Governois of the London Hos- 
 
 pital, 584, 1583 
 
 — V. Hunt, 946, 1059 
 
 — V. Lo water, 575 
 
 — r. Ommannev, 109 
 
 — V. Pett, 1759, 1942 
 
 — r. Quidilingtoii, 1521 
 
 — v. Robinson, 931, 1709, 1717, 
 
 1719, 1753 
 
 — V. Shepherd, 1385, 1386 
 
 — r. Smith, 995 
 
 — V. Sykcs, 974 
 
 — r. Tavlor, 1345 
 
 — V. Tickell, 991, 1261. 1263 
 
 — V. Tonge, 1586 
 
 — r. Waddelow, 990, 991 
 
 — V. AVard, 1721 
 
 — V. "Webb, 1034, 1041 
 
 — V. Wheelwright, 1132 
 Robison r. Killey, 1264 
 Robley r. Robley, 1157 
 Robson, Be, 910, 911. 912, 916 
 
 — V. , 1675 
 
 — V. Francis, 871 
 
 — V. Robson, 314 
 Rochi\ Callen, 1158, 1926, 1927 
 Rock r. Hardman, 1259 
 
 — v. Leightou, 852, 879, 1847, 1848. 
 
 1864, 1867 
 Rocke V. Hart, 1750, 1751, 1752, 1753 
 
 — V. Rocke, 1255 
 Rodd V. Lewis, 16 
 Roddani v. Morley, 1839 
 Roddy v. Fitzgerald, 931. 971 
 Rodhouse r. Mold, 1565, 1571 
 Rodney v. Rodney, 1560 
 Rodwell V. Phillips, 620 
 
 R,oe V. Harrison, 810 
 
 — V. Nix, Add. 
 
 — V. Pattison, 929 
 
 — r. Summerset, 551 
 Roffey V. Greenwell, 1660 
 Rogers v. Acaster, 744 
 
 — V. Clarke, 1027 
 
 — V. Danvers, 868 
 
 — V. Frank, 1691, 1736 
 
 — V. Goodenongh, 153, 15.5, 168, 181 
 
 — V. James, 256, 539 
 
 — V. Jones, 1311 
 
 — r. Mutch, 941 
 
 — V. Pittis, 156, 165, 167, 170 
 
 — V. Price, 1679, 1681 
 
 — V. Soiitten, 1200, 1291, 1893 
 
 — V. Stanton, 783 
 
 Rogers v. Thomas, 1010, 1054, 1317 
 Rogerson, In the goods of, 306, 354, 366, 
 
 387 
 Eolfe V. Perry, 1573 
 Rolleston v. Dixon, 1787 
 Rolls V. Pearce, 689, 690 
 Rook V. AVarth, 732 
 
 — V. Att.-Gen., 984, 1385 
 Roome v. Roome, 1200 
 Roose, FlC, 628, 1051 
 Roper's Estate, He, 1334 
 Roper, Ee, 1550, 1947 
 
 — V. Holland, 1830 
 
 — V. Roper, 1218, 1222 
 Rose, In the goods of, 115 
 
 — V. Bartlett, 202 
 
 — V. Eowler, 1663, 1664 
 
 — V. Gould, 1171 
 
 — V. Poulton, 787 
 
 — V. Rose, 1319 
 
 — r. Sayory, 1830 
 Eosher, He, 1130 
 
 Roskelly v. Godolphin, 423, 889, 890 
 Ross's Trust, He, 1368 
 Ross, Ex parte, 857 
 
 — In the goods of, 462 
 
 — He, 1820 
 
 — V. Adcock, 1610 
 
 — V. Borer, 1059 
 
 — V. Ewer, 50, 93 
 
 — V. Ross, 975, 1131 
 Rosser, In the goods of, 232 
 Rossiter, Ee, 1572 
 Rotheram v. Rotheram, 1565 
 Rotherham I'. Fanshaw, 1262 
 Rothwell V. Rothwell, 1883 
 Round V. Bell, 1927 
 Roundel r. CuiTer, 1127 
 Rous V. Noble, 403 
 Rouse's Estate, He, 1291 
 Rouse V. Jones, 1911 
 
 Row V. Row, 851, 1592 
 Rowe r. Jackson, 1281 
 
 — v. Rowe, 1039, 1165. 1252 
 Rowland v. Cuthbertson, 1309 
 
 — V. Gorsuch, 1386 
 
 — V. Morgan, 638 
 
 — v. Tawuey, 1122 
 
 — V. Witherdeu, 1720, 1723 
 Rowley?;. Adams, 588,1631,1632,1694,1717 
 
 — r. Eyton, 164 
 Rownsnn, He, 895, 1699 
 Rowsell V. Morris, 1912, 1914 
 Rowth V. Howell, 1721 
 Roxburgh v. Lambert, 380 
 
 Roy V. Gibbon, 1883. 1884, 1885 
 Royle, He, 1904, 1908 
 
 — V. Hamilton, 952 
 Eoyston v. Cordrye, 1634 
 Ruhery v. Stevens, 1638 
 Ruck v. Barwise, 1329 
 
 Ruddy, In the goods of, 435, 437 
 Rudge V. Barker, 1082
 
 INDEX OF CASES. 
 
 Ik^ 
 
 XXXVIL 
 
 Rudge V. WiuiKill, 628, 1051, 1291 
 Ruding's Settleuient, lie, 1323 
 Rudstoue V. Anderson, 1032, 1192 
 Rule, In the goods of, 298 
 Rump V. Greenhill, 1908 
 Rush V. Peacock, 439 
 Russel V. Haddock, 1672 
 
 — V. Prat, 700 
 Russell's case, 698, 751 
 
 Russell, In the goods of, 160, 2M,^2i, Add. 
 
 — Re, 176 
 
 — V. Campbell, 966 
 
 — V. Clowes, 1342, 1344, 1345, 1347 
 
 — V. Dickson, 1157. 1158, 1291 
 
 — V. Kellett, 924 
 
 — V. Plaice, 803 
 
 — V. St. Aubyn, 1167 
 Rutherford v. Maule, 370 
 Rutland v. Rutland, 698, 1380 
 Ruttinger v. Temple, 1607 
 Ryall V. Hannani, 1010 
 
 — V. Ryall, 1897 
 Ryan v. Cowley, 973, 975 
 
 — V. Ryan, 355 
 Ryde, In the goods of, 299 
 Ryder, In the goods of, 195, 898 
 
 — V. Bickerton, 1707 
 Ryland v. Smith, 747, 748 
 Rymes v. Clarkson, 98 
 Ryvesi'. Ryves, 1328, 1591 
 
 — V. The Duke of Wellington, 243 
 
 S. 
 
 Sabeeton v. Skeels, 992 
 Sabin v. Heape, 576 
 Sacheverell v. Froggatt, 725 
 Sackvill V. Evans, 163i> 
 Sackville v. Smyth, 1571 
 Sadler v. Hobbs, 1728, 1740 
 
 — V. Rickards, 1508 
 
 — V. Turner, 1023, 1346 
 Saffery v. Elgood, 596 
 
 St. Helens, Lord, v. Lady Exeter, 167 
 Sale f. Bishop of Lichfield, 1538 
 Salisbury V. Petty, 978, 1120, 1124, 1126 
 
 — V. Salisbury, 1364 
 Salmon r. Green, 1106 
 Saloway v. Strawbridge, 830 
 Salt V. Chattaway, 586, 1583 
 Salter v. Codbold, 1634 
 
 — V. Sladen, 842 
 
 Saltmarsh v. Barrett, 1344, 1345, 1347, 
 1751, 1810 
 Salusbury v. Denton, 916, 923, 981 
 Saltown, Lord, v. Lord Ailvocate, 1447 
 Sal way •;;. Salway, 1721 
 Salwey v. Salwey, 741 
 Sammon, Jia, 1427, 1505 
 Samson, In the goods of, 186, 384 
 Samuel v. ^lorris, 218 
 — ■ V. Samuel, 1131 
 
 Samwell v. Wake, 1579 
 Sand's, Sir George, case, 347 
 Sandars v. Millar, 1269 
 Sandemau v. Mackenzie. 948, 951 
 Sander v. Heathfield, 889 
 Sanders' Trusts, Ite, 1137 
 Sanders v. Ashford, 1082 
 
 — V. Bhiin, 821 
 
 — V. Franks, 1003 
 
 — V. Kiddcll, 1510 
 Sandei'son v. Bayley, 959, 965 
 
 — V. Stoddart, 851 
 Sanderson's Trusts, Be, 1058, 1101 
 Sandford i'. Vaughan, 13S, 292 
 Sandilands v. Innes, 1526 
 Sandrey v. Michell, 456 
 
 Sanger v. Sanger, 1652, 1654 
 Sankey v. Lilley, 290 
 Sartoris, In the goods of, 417 
 Satterthwaite v. Powell, 351, 1072 
 — V. Satterthwaite, 276 
 
 Saul V. Wilson, 489 
 Saunders' Trusts, Re, 952, 953 
 
 — case, 1233 
 Saunders, In the goods of, 105 
 
 — V. Drake, 1296 
 
 — V. Drnce, 1917 
 
 — V. Saunders, 134 
 
 — V. Vautier, 1097, 1103, 1255 
 
 — V. Wakefield, 1674 
 Saunders-Davies, Re. 1564, 1589 
 Saurey v. Rumney, 1158 
 Savage, In the goods of, 132 
 
 — V. Blytiie, 375, 413 
 
 — V. Carroll, 947 
 
 — V. Lane, 1895 
 Savile v. Blacket, 1032 
 Saville v. Morgan, 847 
 Sawbridge v. Hill, 362 
 Sawer r. Shute, 1283 
 Sawtell, In th;- goods of, 385 
 Sawyer v. Birchmore, 1208, 1919 
 
 — V. Mercer, 880 
 
 Saxton V. Saxton, 176, 177, 178, 1193, 
 
 1302 
 Say r. Creed, 988 
 Sayer v. Bradley, 976, 986 
 
 — V. Sayer, 1022, 1034, 1211, 1299 
 Sayre v. Hughes. 1200 
 Scales V. Collins, 1590 
 Scammel v. Wilkinson, 47, 58 
 Scarborough, In the goods of, 1318 
 Scard v. Jackson, 812 
 Scarf i\ Jardine, 1623 
 Scarpellini v. Atcheson, 745 
 Scarsdale (Lord) v. Curzon, 638, 639 
 Scattergood v. Harrison, 1759, 1765 
 Scawen v. Blunt, 740 
 Schellinger ■;;. Blackerby, 1538 
 Schenk v. Agnew, 1125 
 Schloss V. Stiebel, 1017 
 Schnell v. Tyrrell, 1138 
 Schofield V. Corbett, 1781
 
 Ixx: 
 
 CXVlll 
 
 indp:x of cases. 
 
 Schofieldi;. Heap, 1196, 1197 
 Soholcy V. Walton, ] 796 
 Soliroder i: Schroder, 130S 
 Schweder"s Estate, lie, 12-20, 1223 
 Scliwerdfeger, In the goods of, 383 
 Score V. Ford, 1884, 1885 
 Scorell V. Boxall, 623 
 Seotney r. Lomer, 1099 
 Scott V. Becher, 187 
 
 — r. Beecher, 1566 
 
 — 1'. Bevau, 1297 
 
 — V. Briant, 1794 
 
 — V. CumberLand, 1948 
 
 — V. Harwood, 941 . 
 
 — V. Izon, 1683 
 
 — v. Jones, 1923 
 
 — V. Josselyn. 1131 
 
 — V. iloore, 988 
 
 — V. Salniond, 1214 
 
 — V. Scarborough (Lord). 944 
 
 — V. Scolt. 131, 946, 1588 
 
 — V. Spashett, 1278, 1283 
 
 — V. Stevens, 1670 
 
 — V. Tvler, 802, 803, 804, 806, 1140 
 
 — V. Wheeler, 1883 
 Scotton V. Scotton, 1194 
 Scriven v. Tapley, 1281 
 
 Scruby v. Fordhara, 21,. 36, 136, 320 
 Scrutton v. Fattillo, 745 
 Scvdthorpe i\ Tipper, 1717 
 Scurfield r. Howes, ll(i."> 
 Scurrah v. Scurrah, 844 
 Scurry v. Morse, 1878 
 Seager v. Bowie, 635 
 Seale v. Buller, 1208 
 Seale-Hayue r. Jodrell, 953 
 Seaman, In the goods of, 301 
 
 — r. P^verard, 1702 
 
 — i: Wood, 1116, 1307 
 Searle v. Law, 1658 
 Searson v. Robinson, 553 
 Seaton v. Sturch, 311 
 
 Secar v. Atkinson, 1662 
 Seccombe v. Evans, 937 
 See, In the goods of, 385 
 Seers v. Hind, 810, 1750 
 Sefton V. Hopwood, 34, 40 
 Segrave v. Kirwan, 100, 468 
 SeifiFerth v. Badham, 988 
 Selby V. Bowie, 1701, 1725 
 
 — V. Selb)', 15S6 
 Seley v. Wood, 1345, 1347 
 Sellon V. Watts, 1592 
 
 Selsey (Lord) v. Lake (Lord), 1018 
 
 Selwood r. Mildmay, 1067 
 
 Selwyn, In the goods of, 351, 402, 1072 
 
 Semine v. Semine, 504 
 
 Seuhouse r. ilawson, 1912 
 
 Sergeant, lie, 953 
 
 Serle v. Bradshaw, 1834 
 
 — V. St. Eloj', 1563 
 
 — V. Waterworth, 209, 213, 1668 
 Serocold v. Hemming, 164 
 
 Severs v. Severs, 1894 
 Sewell's Estate, £c, 1038, 1252 
 Seymour's Trust, 998 
 Seymour v. Xosworthy, 141 
 
 — V, Tresilian, 677 
 Shackleton v. Barrymore, 848 
 ShadboJt v. Wausrh, 292 
 
 — V. Woodfall, 1205, 1231 
 Shadforth r. Temple, 581 
 Sliafto r. Shafto, 1569 
 
 Shaftesbury v. Shaftesburv, 1034, 1188, 
 1190, 1191 
 — v. Marlborough. 1162, 1512 
 
 Shallcross r. Wright, 584, 1583, 1657, 
 
 1698 
 Shand v. Kidd, 936, 1386 
 Shard v. Shard, 1460 
 Sharland v. ilildon, 210, 220 
 Sharman, In the goods of, 93, 316, 317, 
 900, 1048, 1317 
 Sharp V. Lush, 851, 1679 
 Sharpe, Ik, 1922 
 
 — V. Crispin, 1397 
 
 — V. Lord Scarborough, 1548, 1586 
 Shattock V. Shattock, 1546, 1550 
 Shaw, Ex2Mrte, 1898 
 
 — In the goods of, 135, 136 
 
 — V. Cutteris, 61 
 
 — V. Ford, 1131 
 
 — V. Gould, 940, 953 
 
 — V. McMahon, 1080, 1081 
 
 — V. Marshal, 314 
 Shea V. Boschetti, 273, 483 
 Shearman. Re, 1905 
 Shears v. Rogers, 1545 
 Shearwood, Me, 1942 
 Sheddon v. Goodrich, 1307 
 Shee V. French, 1545, 1548 
 
 — V. Hale, 1131 
 Sheffield r. Lord Coventr}-, 1195, 1298 
 
 — V. Lord On-eiy, 933 
 
 Sheffield and South Yorkshire Permanent 
 Benefit Building Society r. Harrison, 
 642 
 
 Sheldon, Be, 1252 
 
 — V. Sheldon, 87 
 Shelley v. Bryer, 962 
 
 — V. Shelley, 638 
 Shelly's case, 836, 1S54 
 Shephard, He, 1616, 1797 
 Shepheard v. Beetham, 244, 909, 1034 
 Shepherd, In the goods of, 259 
 
 — V. Ingram, 1293 
 
 — V. Mouls, 1717 
 
 — V. Xottidge, 1344 
 
 — v. Shorthose, 325, 1793 
 
 — V. Towgood, 1891 
 Shepherdson r. Dale, 1 328 
 Sheppard v. Duke, 1924 
 Sheppard's Trust, lie, 1084, 1135 
 Sherer v. Bishop, 6, 941 
 Sheriff t-. Axe, 1764 
 
 Sherman v. Collins, 1120
 
 INDEX OF CASES. 
 
 Ixxxix 
 
 Sherratt v. Beiitley, 934, 93G 
 
 — V. Mountford, 963, 9G4 
 Sherrington v. Yates, 739 
 Sherwood, Kc, 1761 
 
 — V. Sanderson, 33 
 
 — V. Smith, 1273 
 Shewen v. Yandenhorst, 1700, 1905 
 Shield V. Shield, 93 
 
 Shilling, In the goods of, 1073 
 Shingler v. Pemberton, 97 
 Shipbrook r. Lord Hiuchinbiook, 1724, 
 1729, 1730 
 Shipley's, Mary, case, 1862 
 Shipman v. Thompson, 1781 
 Shipperdson v. Tower, 934 
 Shipton V. Rawlins, 448 
 Shipway v. Ball, 1280 
 Shires v. Glascock, 80 
 Shirley, In the goods of, 160 
 
 — V. Lord Ferrers, 1490 
 Shirt V. Westby, 1219, 1287 
 Shoman v. Allen, 784 
 Shore r. Weekly, 1055 
 
 — V. Wilson, 903 
 Short V. Smith, 130 
 Shovelton v. Shovelton, 990 
 Shrewsbury v. Hornby, 903 
 Shrimptou v. Shrimpton, 1088, 1099 
 Shudal V. Jekjll, 1200 
 
 Shum V. Hobbs, 1096 
 Shuttleworth, In the goods of, 317 
 
 — V. Garnet, 732 
 
 — V. Greaves, 749, 1024, 1074, 
 
 1081 
 
 — V. Howarth, 1946 
 Sibbering v. Balcarras, 1922 
 Sibley's Trusts, Jie, 1077 
 Sibley v. Cook, 1075 
 
 — V. Perry, 974, 1024, 1025 
 Siboni ■;;. Kirkman, 1597 
 Sibthorji, In the goods of, 87 
 
 — V. Moxom, 1226 
 Sidebotham v. Watson, 1030 
 Sidebottom r. Sidebottom, 938 
 Sikes V. Lister, 581 
 
 Sileox V. Bell, 358, 965 
 Sillick V. Booth, 1073, 1082, 1122 
 Silver v. Stein, 1880, 1S97 
 Sim V. Doughty, 934 
 Simmonds, In the goods of, 79 
 
 — V. Cocks, 1096, 1113, 1124 
 Simmons, Ex parte, 560 
 
 — V. Bolland, 1204 
 
 — D. Gutteridge, 1179 
 
 — V. Rose, 1583 
 
 — V. Simmons, 967 
 
 — V. Yallance, 1025, 1026, 1211 
 Simon v. Barber, 924 
 
 Simons v. Milman, 256, 342 
 Simpson v. Chapman, 1748 
 
 — v. Gutteridge, 817 
 
 — r. Henning, 1623 
 
 — V. Morley, 801, 863 
 
 Simpson v. Peach, 1122 
 
 — V. Yiekers, 1132, 1133 
 Sims L\ Doughty, 1171 
 Sinclair, In the goods of, 86 
 Sing V. Leslie. 948 
 Singleton v. Gilbert, 942 
 
 — r. Tomlinson, 87, 88, 314, 330, 
 
 1317, 1350 
 Sinnettr. Herbert, 912, 920, 1583 
 Sisson V. Giles, 580 
 
 — ^^ Shaw, 1272, 1273 
 Sitwell, Ex' parte, 1457 
 
 — V. Bernard, 1247, 125S 
 Skeffington r. ]^,add, 791 
 
 — r. White, 365, 382, 414, 450 
 
 — V. Whitehurst, 791 
 Skelton v. Hawling, 1866, 1867 
 Skeyy. Barnes, 1110, 1111, 1137, 1294 
 Skinner v. Ogle, 164, 166, 169, ISO 
 
 — V. Sweet, 1897 
 Skinner's Trusts, He, 1154 
 Skipper v. King, 1115 
 Skirrow v. Skirrow, 1947 
 Skirving v. Williams, 1039, 1252 
 Skottowe r. Young, 1454 
 Skrymsher v. Northcote, 1324 
 Slade's case, 699, 762 
 
 Slade V. Fooks, 965 
 
 Slanning v. Style, 187, 672, 873, 1044, 
 1U49, 1253 
 Slater r. Alvey, 247 
 
 — V. Daugerheld, 973 
 
 — V. Lawson, 1841 
 
 — V. May, 433, 439 
 
 — -v. Wheeler, 1615, 1620 
 Slatter v. Noton, 1192 
 
 — V. Slatter, 1360 
 Sleap V. Xewman, 1642 
 
 Sleech v. Thorington, 1026, 1030, 1224, 
 1278, 1285 
 Sleeman r. Y'ilson, 1740 
 Sleight V. Lawson, 1891 
 Slevin, Re, 924 
 Slingsby v. Grainger, 1055 
 Slinn, In the goods of, 94, 95 
 Sly r. Sly, 135 
 Smale v. Graves, 1521 
 Small V. Wing, 1769 
 vSmallman v. Goolden, 1299 
 Smallwood v. Bishop of Coventry, 699, 
 
 762 
 
 — V. Bishop of Lichfield, 595, 
 
 1538 
 Smart, In the goods of, 300 
 
 — V. Clark, 937 
 
 — V. Prujean, 87, 88 
 
 — V. Tranter, 324 
 
 S medley -y. Philpot, 1536, 1545 
 
 — V. Varley, 1743 
 Smee v. Bryer, 67 
 
 — i: Smee, 28 
 Smell V. Dec, 1094 
 Smethurst v. Tomlin, 186
 
 xc 
 
 INDEX OF CASES. 
 
 Smith's Estate, He, 920, 952, 1910 
 
 — Trusts, Fu, 1077, 1079, 1081 
 
 — (Betty) Trusts, 1134 
 
 Smith, 111 the goods of, 48, 54, 87, 159, 
 206, 273, 31 f5, 385 
 
 — r.c, 1C4, 944, 1265, 1294, 1571 
 
 — V. Actun, 1927 
 
 — V. Anderson, 1507 
 
 — V. Ai-mitafje, 1892 
 
 — r. Attersoi], 329, 330 
 
 — r. Barneby, 992, 999 
 
 — r. Butcher, 930, 967, 969, 970 
 
 — V. Campbell. 982, 984, 1011 
 
 — V. Cascii, 691 
 
 — V. Cbamljers, 1759 
 
 — r. Claxton, 587 
 
 — V. Conder, 1198, 1375 
 
 — V. Cowdery, 1145 
 
 — V. Crofts, 196 
 
 — v. Cunuinfjham, 126, 1G6 
 
 — V. Dale, 1938, 1039 
 
 — V. Davies, 837, 1854 
 
 — v. Day, 1206 
 
 — r. Dt-ainier, 165 
 
 — r. Dudley, 997 
 
 — v. Evans, 66 
 
 — V. Everett, 817, 821, 1521 
 
 — V. Eyles, 860, 864 
 
 — V. Fitzgerald, 1031, 1319 
 
 — V. Forty, 1838 
 
 — V. Guy, 1915 
 
 — V. Harris, 72 
 
 — V. Hibbert, 581 
 
 — V. Hopkinson, 311 
 
 — V. Horsfall, 975 
 
 — V. Jones, 352 
 
 — r. Langford, 1765 . 
 
 — V. Lidiard, 9t;3 
 
 — V. Lucas, 13i'6 
 
 — V. Lyne, 1163 
 
 — V. Matthews, 1279 
 
 — r. Milles, 243 
 
 — V. Morgan, 1796 
 
 — V. New South Wales Bank, 812 
 
 — V. Oliver, 922, 1074 
 
 — V. Osborne, 1334 
 
 — V. Palmer, 996, 1097, 1103, 1104, 
 
 1385 
 
 — r. Price, 842 
 
 — V. Pybus, 1081 
 Simonds, 715 
 
 ri6 
 
 — V. Smith, 
 
 77, 91, 282, 669, 686, 
 826, 988, 1078, 1116, 
 1118, 1171, 1204, 1205, 
 1278, 1372, 1571, 1727, 
 1743, 1776, 1S75, 1881 
 
 — ■;;. Spencer, 1127 
 
 — r. Streatlield, 939 
 
 — -V. Tebbitt, 28 
 
 — V. Tracey, 359, 1367 
 Smithby i: Hinton, 1878 
 Smither v. Willock, 1137 
 Smithley v. Cholmeley, 250 
 
 Smoutr. Ilbery, 1656 
 Smyth V. Smyth, 427, 1041 
 Snape v. Norgate, 779 
 
 — V. Webb, 380, 404 
 Sneesby v. Thorn e, 817 
 Snellgrove v. Baily, 687 
 Snelling's case, 340 
 
 Snelson v. Corbett, 678, 1044, 1564 
 Snow V. Booth, 1927 
 
 — V. Strutt, 842 
 
 — V. Teed, 989 
 
 Snowball v. Proctor, 946 
 
 Soady v. Turnbull, 189G 
 
 Soam V. Bowden, 1650 
 
 Soames v. Martin, 1155 
 
 Soar V. Dolman, 125 
 
 Sobey v. Sobey, 1930, 1933 
 
 Solicitor-General v. Law Eeversionary In- 
 terest Society, 1457 
 
 Sellers V. Lawrence, 1593, 1610 
 Solomon v. Solomon, 1572 
 Somerset, In the goods of, 444 
 Somerviller. Somerville, 1393, 1394. 139S 
 Soresby v. HoUins, 9u7, 915, 919 
 Sotheran v. Dening, 152, 153 
 South V. Bloxham, 1585 
 Southall V. Jones, 94, 158 
 Southby V. Stonehouse, 933 
 Southcot V. Watson, 1312, 1346 
 Southcote V. Hoare, 723 
 Southern v. WuoUaston, 1109 
 Southmead, In the goods of, 387, 442 
 Southouse v. Bate, 1058 
 Sowerby, In the goods of, 350 
 Sowerby's Trust, Be, 1074, 1493 
 Spackman v. Holland, 1769 
 
 — r. Tinibrell, 801, 1559 
 Sparke v. Sparke, 615, 616 
 Sparkes v. Crofts, 423, 424, 427 
 
 — V. Restal. 1537 
 Sparling v. Parker, 910, 946, 1247 
 SpaiTOW V. Josselyn, 1031 
 Speakman, He, 1076 
 
 — V. Speakman, 978 
 
 Speight V. Gaunt, 1701, 1720, 1721, 1722, 
 1723, 1733 
 Spence's case, 1684 
 Spencer's ease, 627, 1845 
 Spencer r. Spencer, 951. 1190 
 
 — V. Ward, 1017 ' 
 
 — V. Wilson, 1100, 1101 
 Spensley's Estate, Jlc, 1936 
 Spicer v. James, 891, 1521 
 Spiers v. Morris, 1875 
 Spinks V. Robins, 1197, 1200 
 Spire r. Smith. 1157 
 
 Spirett V. AViUows, 1278, 1279, 1281 
 Spirt V. Beuce, 933 
 Spode V. Smith, 1202 
 Spong V. Spong, 1033, 1584 
 Spooner's Trusts, He, 1321 
 Spooner v. Brewster, 635 
 Sprackling r. Rainier, 942
 
 INDEX OF CASES. 
 
 XCl 
 
 Spnitt V. llanis, '201, 300, 321, 544 
 Sprigge V. Sprigge, 125, 135 
 Spring V. Biles, 981 
 Springett v. Jeiiiugs. 1319 
 Spurrell v. Spuirell, 1330 
 Spurstow V. Prince, 699 
 Spurway v. Glynn, 128G, 1583 
 Spyer v. Hyatt, 1560 
 Squib V. Wyn, 349, 1353 
 Squire v. Mayer, 646 
 Squires v. Ashford, 1278 
 St. Albans, Duke of, v. Beauclerk, 1158 
 St. Helens, Lord, v. Lady Exeter, 167, 
 
 291 
 St. John V. Bawdripp, 1594 
 
 — Lord, V. Boughton, 1925, 1927 
 Stacev V. Elpli, 230, 1737 
 
 Stackpole r. Beaumont, 1140, 1280 
 Stackpoole, In the goods of, 455 
 
 — V. Howell, 1147, 1148 
 
 — V. Stackpoole, 836, 839, 1757, 
 
 1769 
 Stafford v. Buckley, 718, 719, 933 
 
 — V. Fiddou, 1750 
 Stag V. Punter, 837 
 Stahlschmidt v. Lett, 895, 1699, ISOO 
 Staines v. Morris, 1632 
 
 — V. Stewart, 295 
 Stainton, In the goods of, 362 
 
 — v. The Carron Coiuiianv, IS 8, 
 
 1917, 1918 
 Stair V. IMacgill, 1247 
 Stamford's case, 211 
 Stamford Society, Ex 2mrtc, 857 
 Stammers v. Halliley, 1222 
 Stamper v. Barker, 754 
 
 — V. Pickering, 1242 
 Standen v. Standen, 1011, 1578 
 Standley's Estate, Re, 953, 956 
 Stanford's case, 1785 
 Stanhope's Trusts, Re, 971, 1081 
 Stanilandt). Willott, 682, 687 
 
 Stanley v. Bernes, 303, 431, 459, 462, 821, 
 1392, 1395, 1399 
 
 — V. Potter, 1030, 1185 
 
 — V. Stanley, 293, 360, 1356, 1378, 
 
 1379 
 Stansfield, Re, 1081, 1086 
 Stanton v. Lambert, 348 
 Stanwix's case, 1073 
 Stapleton v. Cheales, 1094 
 
 — V. Colville, 1582 
 
 — V. Conway, 1294 
 
 — V. Stapleton, 937 
 
 — V. Tnielock, 202, 1178 
 Stark, In the goods of, 463 
 Starnes v. Marten, 32 
 
 Starr v. Newberry, 983 
 Stasby v. Poweli,''864 
 Statham r. Bell, 1134 
 Stead V. Hardaker, 1591 
 
 — V. Mcllor, 98 
 
 — V. Piatt, 1109 
 
 Steadman, In the goods of, 445, 450 
 
 — V. Powell, 46 
 Steam v. Mills, 1855 
 Stedham, In the goods of, 167 
 Steed V. Cragh, 612 
 
 Steele, In the goods of, 167, 163, 170, 181 
 Steer, Re, 1395 
 
 — V. Steer, 1880 
 Steevens' Trusts, Re, 969 
 Steinmetz v. Halthin, 1282 
 Stelfox V. Sugden, 1212, 1213 
 Stenhouse v. Mitciiell, 1064 
 Stent V. Robinson, 1288 
 Stephens v. Frost, 1099 
 
 — V. Hotham, 1643 
 
 — V. Lawry, 1273 
 
 — V. Stephens, 1305 
 
 — V. Taprell, 115 
 
 — V. Totty, 1276 
 
 — V. Venables, 1284, 1895 
 Stephenson, In the goods of, 349 
 
 — V. Dowson, 1020, 1029, 1063 
 
 — V. Heathcote, 1578, 1579 
 Sterudale v. Hankiusou, 1690, 1915, 1929 
 
 1930 
 Sterne, Ex parte, 599 
 Stert V. Plate], 988 
 Stevens' AVill, Re, 1057 
 Stevens v. Bagwell, 49 
 
 — V. Evans, 1651 
 
 — V. Trevor- Garrick, Add. 
 Stevenson v. Abingdon, 975 
 
 — V. Gullan, 1330 
 
 — V. Masson, 1195, 1395 
 
 — V. Mayor of Liverpool, 1229 
 
 — V. Wood, 489 
 SteArard v. Cotton, 1051 
 Stewart, Re, 582 
 
 — In the goods of, 88, 185, 192, 306, 
 
 366, 385 
 
 — V. Denton, 1647 
 
 — V. Edmonds, 345, 1796 
 
 — V. Jones, 1076 
 
 — V. Stewart, 1343, 1357, 1370,1371 
 Stickney v. Sewell, 1705, 1708 
 
 Stiffe V. Everitt, 744 
 Stiles V. Guy, 1691, 1703 
 Still V. Hoste, 1015 
 Stirling v. Lydiard, 1192 
 Stirling-Maxwell r. Cartwright, 3C9. 1390, 
 
 152t> 
 Stockdale v. Bushby, 1011 
 
 — V. Nicholson, 992, 995 
 Stocken, Re, 1812 
 
 — V. Dawson, 1760 
 
 — V. Stocken, 1169, 1272 
 Stocker v. Harbin, 1583 
 Stockil V. Punshon, 89 
 Stocks V. Barre, 1054 
 
 — V. Dodsley, 1004 
 Stockwell V. Ritherdon, 111, l',9, 291 
 Stoddartu Grant, 138, 139, 140 
 
 — V. Nelson, 964
 
 XCll 
 
 INDEX OF CASES. 
 
 Stoildcu V. Harvev, 706, 849 
 Stokes r. Cheek, 1062 
 
 — V. Heron, 946, 1059 
 
 — V. Porter, 208 
 Stone r. Forsyth, 50 
 
 — r. Greening, 929 
 
 — r. Parker, 1571 
 Stones V. Cooke, 735 
 Stoiior's Trusts, He, 663 
 Stopt'ord V. Lord Canterbury, 1273 
 >>torrs r. Benbow, 942, 1116 
 Story r. Fry, 1533, 1842 
 
 — V. Shcard, Add. 
 Stote r. Tynckll. 370 
 Stott V. Hollingworth, 1243 
 
 Stow V. Davenport, 1490, 1506, 1508, 1515 
 Strace}% In the goods of, 8 
 Straker r. Wilson, 1247 
 Strange v. Harris, 1882 
 
 — r. Smith, 1144 
 Strathmore r. Bowes, 165 
 Stratton v. Best, 1305 
 
 — V. Grimes, 1142 
 
 — V. Linton, 363 
 
 — V. Stratton, 430 
 Straus V. Goldsmid, 902 
 Strauss v. Schmidt, 157 
 Streaker, In the goods of, 114 
 Streatfield v. Cooper, 1 048 
 Streatley, In the goods of, 85, 93 
 Stretch i\ Pynn, 354 
 
 — V. Watkins, 1058, 1268 
 Strickland r. Strickland, 1588, 1878 
 
 — r.Symons, 1682, 1816,1900,1901 
 Stringer's Estate, Be, 1131 
 Stringer r-. Gardiner, 962, 1013 
 Strong V. Bird, 1180 
 
 — V. Ingram, 1158 
 
 — V. Teatt, 932 
 Strother v. Dutton, 1106 
 Stroud V. Dandridge, 1853 
 
 — V. Gwyer, 1249, 1744 
 
 — V. Stroud, 1206, 1S59 
 Stuart r. Bute, 1042 
 Stubbs' Estate, T^r, 1849 
 Stubbs V. Sargon, 1005 
 Stubs V. Stubs, 635 
 
 Studd V. Cook, 930, 940 
 
 Stukeley v. Butler, 621 
 
 Stumm V. Dixon, 1835 
 
 Sturge and Great "Western Eailway Co., 
 
 Ite, 987 
 Sturgess v. Pearson, 1137 
 Sturgis V. Corp, 54 
 
 — V. Darell, 1791, 1845 
 Style V. Tomsou, 829 
 
 Styles f. Guj', 1703, 1724, 1732, 1734 
 Styth V. Monro, 995, 996, 1001 
 Sudbury v. Brown, 1065 
 Suffolk V. Lawrence, 1807 
 Sugden v. Crossland, 1744 
 
 — V. Lord St. Leonards, 132, 134, 
 
 135, 136, 295, 318, 319, 490 
 
 Suggitt's Trusts, Ec, 1278 
 
 Suisse V. Lowthi'r, 1156, 1159, 1194, 1908 
 
 Summerell r. Clements, 2S2 
 
 Summers, In the goods of, 77 
 
 Sumner v. Powell, 1621 
 
 Sunderland, In the goods of, 87, 88, 90 
 
 Surman v. Wharton, 606 
 
 Surtees v. Parkin, 1589 
 
 Sutherland, In the goods of, 462 
 
 — V. Cooke, 1035, 1040, 1252 
 
 Sutton, Ec, 1054 
 
 — V. Drax, 313 
 
 — V. Sadler, 16, 289, 296 
 
 — V. Sharp, 1751, 1753 
 
 — V. Smith, 321 
 
 — V. Wilders, 1720 
 Suwerkrop v. Daj-, 407, 438 
 Swabey v. Goldie, 1386 
 
 — V. Swabey, 540, 1491 
 Swain, Be, 1928 
 
 Swaine v. Burton, 1327 
 
 — V. Kennerley, 954 
 Swainson v. Swainson, 1567 
 Swallow V. Bums, 1114, 18S0 
 
 — V. Emberson, 1831 
 Swan, Be, 1283 
 
 Sweet, In the goods of, 244 
 Sweeting v. Prideaux, 936 
 
 — V. Sweeting, 1485 
 Sweetland v. Sweetland, 67, 71 
 Swift, Ex -parte, 1275 
 
 — v. Swift, 302, 365, 929, 975, 1931 
 Swinburne, Be, 1324 
 
 SwindeU v. Bulkekv, 1788, 1845 
 
 Swindin, In the goods of, 113 
 
 Swinfen v. Swinfen, 34, 312, 1046, 1721 
 
 Swinford, In the goods of, 78, 92 
 
 Swinton r. Bailey, 122 
 
 Swire, Be, 1909 
 
 Sydney v. Vaughan, 1088 
 
 Syer v. Gladstone, 1310 
 
 Sykes, In the goods of, 113, 114, 294 
 
 — V. Jleynal, 754 
 
 — V. Xorth Eastern Railway Co., 704 
 
 — r. Sykes, 215, 1080, 1324, 1797 
 Sj'mers v. Jobson, 967, 968 
 
 Symes v. Green, 16 
 Symonds v. Marine Society, 908 
 Symons, Be, 1771, 1772. 1892 
 Sympson v. Hornsby, 1362 
 Synge v. Sjmge, 1305 
 
 T/VAFE v. Conmee, 1329, 1330, 1334 
 
 Tabor v. Grover, 602 
 
 Tagart v. Hooper, 132 
 
 Tait V. Lord Northwick, 1579 
 
 Talbot V. Andrews, 379 
 
 — V. Frere, 885 
 
 — V. Radnor, 1310 
 
 — r. Shrewsbury, 1162 
 Tankerville r. Fawcett, 1567
 
 INDEX OF CASES. 
 
 XCll 
 
 Tanner v. Byne, 870 
 
 — V. Dancey, 1936 
 
 — V. Tebbiitt, 1133 
 Tanqueray-Willaunie and Landau, Es, 577, 
 
 578, 1923 
 Tapley v. Eagleton, 1303 
 Tappenden v. Walsh, 54, 323 
 Tarbottom v. Earle, 1212 
 Tarn v. Commercial Bank of Sydney, 252, 
 
 255, 1780 
 Tatam v. Williams, 1922 
 Tate r. Clarke, 931, 972 
 
 — V. Hilbert, 681, 682, 687, 688, 689, 690 
 
 — V. Leithead, 682, 689, 690 
 Tatham v. Vernon, 975, 1099 
 
 — V. Williams, 1930 
 
 — V. Wright, 36 
 Tatlock V. Jenkins, 1583 
 Tatnall v. Hankey, 308, 323 
 Tattersall v. Howell, 1123 
 Taunton i'. Morris, 1278, 1283 
 Tawney v. Ward, 1115 
 
 Taylor's Estate, Ee, 935, 939, 1069, 1171, 
 1556, 1567 
 Taylor, In the goods of, 85, 386 
 
 — Fie, 582, 963, 966, 1012, 1761 
 
 — V. Beverlev, 992, 1330 
 
 — V. Clarke, '1243, 1245, 1250 
 
 — v. D'Egville, 95 
 
 — r. Diplock, 401, 402, 460, 1072 
 
 — V. Frobisher, 1113, 1122 
 
 — V. Gerst, 1751 
 
 — 11. Harris, 778 
 
 — i\ Hawkins, 806 
 
 — V. Haygarth, 580, 1342, 1 344, 1345, 
 
 1347, 1386 
 
 — V. Hibbert, 1243 
 
 — V. Holman, 1863, 1871 
 
 — V. Johnson, 1268, 1293, 1294 
 
 — V. Langford, 1105 
 
 — V. Newton, 426, 846 
 
 — V. Plumer, 1544 
 
 - V. Popham, 1132 
 
 — V. Richardson, 485 
 
 — V. Rundell, 1890 
 
 — V. Shore, 401, 496 
 
 — V. Shum, 1631 
 
 — V. Southgate, 1909 
 
 — V. Tabrum, 1701 
 
 -- V. Taylor, 432, 584, 585, 1035, 
 1203, 1212, 1374, 1375, 1376, 1627, 1629 
 
 Taynton v. Hannay, 434, 438 
 
 Teague v. Wharton, 386 
 
 Teape's Trusts, He, 1324 
 
 Tebbs r. Carpenter, 944, 1692, 1701, 1703, 
 1709, 1724, 1750, 1751, 1752, 1758 
 
 Tegetmeyer v. Lumley, 1781 
 
 Telford v. Morison, 848 
 
 Tempest v. Lord Camoys, 1899, 1900 
 
 — V. Tempest, 899, 1021, 1048, 
 
 1224, 1590 
 Temple v. Temple, 741 
 
 — V. Walker, 323 
 
 Templeman v. Warrington, 1110, 1138 
 Tenant v. Bray, 1129 
 Tench v. Cheese, 1584 
 Teunant v. Heathheld, 1134 
 Ternegan v. Glass, 1931 
 Terrell •;;. Mathew, 1728 
 Terrewest v. Featherby, 1802, 1911 
 Terrible, In the goods of, 169 
 Terry v. Terry, 1707 
 Terry's Will, Ee, 989 
 Tewtry v. O'Regan, 710 
 Teynham v. Webb, 947, 950 
 Thacker v. Wilson, 1545, 1643 
 Tharp, In the goods of, 52, 58, 323 
 Tharpe v. Stallwood, 553, 556 
 Thatcher's Trusts, Ee, 1122, 1266, 1270 
 Theebridge v. Kilburne, 598, 968 
 Theed's Settlement, Ee., 948, 1108 
 Thellusson v. Rendlesham, 976 
 
 — V. Woodford, 930, 939, 940, 
 
 1304 
 Therry v. Henderson, 1908 
 Thirlwall, Ee, 402 
 Thirt V. Robinson, 358 
 Thomas, Ee, 560, 1645 
 
 — V. Archbishop of Canterbury, 458 
 
 — V. Attorney-General, 1290 
 
 — V. Baker, 402 
 
 — V. Bennet, 1163 
 
 — V. Butler, 401, 496 
 
 — V. Dunn, 784 
 
 — V. Frazer, 1621 
 
 — V. Griffith, 1314, 1915 
 
 — V. Hole, 979, 1385 
 
 — V. Howell, 148, 924, 1128 
 
 — V. Jones, 47, 176, 179, 1907, 1944, 
 
 1945 
 
 — V. Kemeys, 604 
 
 — V. Ketteriche, 358, 1381 
 
 — V. Montgomery, 1241, 1261, 1479 
 
 — V. Thomas, 264 
 
 — V. Wilberforce, 1101 
 Thompson's Trusts, Ee, 970 
 Thompson, In the goods of, 76 
 
 Ee, 1650 
 
 — V. Advocate-General, 1501 
 
 — V. Andrews, 1688 
 
 — V. Beasley, 974 
 
 — V. Clive, 1947 
 
 — V. Cooper, 891 
 
 — V. Donaldson, 477 
 
 — V. Dunn, 1900 
 
 — V. Griffin, 1272 
 
 — V. Hempenstall, 167 
 
 — V. Percival, 1623 
 
 — V. Pinchell, 793 
 
 — r. Reynolds, 1779 
 
 — V. Robinson, 962, 963 
 
 — V. Shakespear, 920 
 
 — V. Stanhope, 1799 
 
 — V. Stent, 762 
 
 — V. Thompson, 720, 910, 1694 
 
 — V. Towue, 581, 1550
 
 XCIV 
 
 INDEX OF CASKS. 
 
 Thompson r. Watts, 1361 
 
 — r. Whitelock, 1068, 1074, 1320 
 Thomson, In the goods of, 77, 291 
 
 — r. Eastwood, 1927 
 
 — r. Grant, 8^1, 1531 
 
 — V. Hall, 91 
 
 — r. Harding, 223 
 Thornbsr v. Wilson, 918 
 Thornbrongh r. Baker, 602 
 Tliorncroft v. Lashmar, 96 
 Thorne, In the goods of, 105, 158 
 
 — v. Kerr, 1872, 1897 
 
 — V. Kooke, 146, 171, 1160 
 
 — V. 'Jhorne, Add. 
 
 — r. Watkins, 1388, 1389 
 Thornhill r. Thornhill, 1078 
 Thornton, In the goods of, 125 
 
 — r. Curling, 303, 475 
 
 — r. Kilis, 1040, 1248, 1252 
 
 — r. Howe, 901, 919 
 
 — V. Kempson, 908, 909 
 
 — r. Thornton, 1324 
 Thorold i: Thorold, 328 
 Thorpe v. Bestwick, 901 
 
 — r. Jackson, 1620 
 Threlfall v. Wilson, 314, 834 
 Thrupp V. Collett, 1008 
 
 — V. Harman, 673 
 Thruston's Will, He, 1122 
 Thruston v. Anstey, 1294 
 Thruxton i: Attorney-General, 1514 
 Thurshy r. Plant, 1631 
 
 — r. Thursby, 1252 
 Thursden r. AVarthcn, 1630 
 Thurston, He, 1322 
 Thwaites v. Foreman, 1223 
 Thynneu Glengall, 1163, 1164, 1167 
 
 — (Lord John) r. Stanhope, 127 
 Tichborne v. Tichborne, 428, 430 
 Ticknen-. Old, 1252 
 
 — V. Smith, 1936 
 Tiddr. Lister, 1283, 1584, 15S5 
 Tidswell v. Ankerstein, 1545 
 
 — V. Bowyer, 1392 
 Tidwell V. Ariel, 1074, 1075 
 Tiffin V. Longman, 980, 988 
 
 — V. Tiffin, 1544 
 Tilney v. Norris, 1635 
 Tilt V. Bartlett, 751 
 Timins v. Stackhouse, 1078 
 Timmis v. Flatt, 1787 
 Timms, Be, 1778, 1910 
 Timson v. Ramsbottom, 1727 
 Tindal, £x parte, 1599 
 Tindall's Trust, He, 264 
 Tingrey r. Brown, 204, 409 
 Tippett r. Tippett, 282, 312 
 Tipping r. Power, 851, 887, 1936 
 
 — V. Tipping, 635, 674, 677, 678, 1564 
 Tippins V. Coates, 1617 
 
 Titcomb v. Butler, 942 
 Titley v. Wolstenholme, 830 
 Todd V. Bielby, 1221 
 
 Toddr. Wilson, 1761 
 
 — r. Winchelsea, 80 
 Toldervy v. Colt, 1136 
 Toller V. Attwood, 931, 1109 
 ToUnerr. ]\Iarriott, 1133, 1930 
 Tolson V. Collins, 1166, 1169 
 Tombs V. Roch, 1564, 1589, 1592 
 Tomkins v. Blane, 1305 
 
 — V. Colthurst, 1589 
 
 — r. Tomkins, 1017 
 Tomlin V. Beck, 212, 215 
 
 — V. Tomlin, 1179 
 
 Tomlinson, In the goods of, 50, 182, 270, 
 
 327, 328 
 
 — r. Tomlinson, 910 
 Toner r. Thompson, 1936 
 Tooker v. Annesley, 622 
 Toomes v. Etherington, 781 
 Toomv, In the goods of, 192 
 Tootai's Estate, Be, 1035, 1214 
 
 — Trusts, Be, 305, 1398 
 Topham v. Morecroft, 1830 
 Toplisr. Baker, 1073, 1075 
 
 — V. Hurrell, 1728 
 Topping, In the goods of, 276 
 Torre v. Browne, 1289, 1290 
 Torres r. Franco, 1114 
 Toulmin v. Copland, 1883 
 Tourton v. Flower, 242, 293 
 Toussaint v. Hartop, 782 
 Tower v. Rous, 1579, 1581 
 Towers I?. Moor, 1615 
 
 Townend r. Townend, 573, 1745, 1757, 1894 
 Townley v. Bedwell, 918 
 
 — V. Watson, 124, 125 
 Towns V. Mead, 1842 
 
 — V. Wentworth, 930, 931, 933 
 Townsend v. Barber, 1727 
 
 — V. Deacon, 1791 
 
 — V. Martin, 1028 
 
 — V. Mostyn, 1568 
 
 — V. Townsend, 1908, 1909 
 Townshend, In the goods of, 273 
 
 — V. Cams, 923 
 
 — V. Early, 942 
 
 — V. Windham, 1007, 1550 
 To\vnson v. Tickell, 819, 1231, 1239 
 Tracy v. Butcher, 1109 
 
 Trafford r. Berrige, 1045 
 Trail v. Bull, 1234, 1238 
 Trappes v. Harter, 646 
 Trattle v. King, 557 
 Travers v. Townsend, 1936 
 Travis v. Milne, 1688, 1918 
 Treeby, In the goods of, 123 
 Trcharne v. Layton, 938 
 Treloar i;. Lean, 121, 122 
 Tremeere v. Morison, 1640, 1642 
 Trestrail ?>. Mason, 1572, 1573 
 Trethewy v. Ackland, 1617, 1849 
 
 — V. Helyar, 999, 1316, 1591, 1948 
 Trevanion, In the goods of, 84 
 Trevelyan v. Trevelyan, 135, 318, 319
 
 INDEX OF CASES. 
 
 XCV 
 
 Treves v. TownslienJ, 17.33 
 Trevor v. Trevor, 106S 
 Trewinian v. Howell, 1661, 1673 
 Trezevant v. Frazer, 1768 
 Tribe v. Newland, 1107, 1331 
 
 — V. Tribe, 81 
 Trick, Fi«, 1820 
 Trimlestown v. D' Alton, 38, 41 
 
 — V. Trimlestown, 494 
 
 Trimmell v. Fell, 58 
 Trimmers. Bayne, 1195, 1197, 1199 
 
 — V. Jackson, 78 
 Trinden;. Trinder, 176, 1302 
 Trinmel, In the goods of, 81 
 Triqnet v. Thornton, 580 
 Trott V. Buchanan, 1576, 1579, 1581, 1583 
 
 — V. Skidmore, 69 
 Troughton r. Binkes, 1916 
 
 — r. Troughton, 1550 
 Trower iJ. Butts, 942 
 
 — V. Cox, 498 
 Trufort, Fw, 1387, 1390, 1391 
 
 Truro, In the goods of, 87, 88, 89, ISO 
 Trutch V. Lamprell, 1724, 1732 
 Trye v. Corporation of Gloucester, 914 
 Tubby V. Tubby, 1560 
 Tucke, Sir Brian, case of, 1601 
 Tucker, In the goods of, 300, 366 
 
 — He, 662 
 
 — r. Boswell, 1247 
 
 — v. Burrow, 1200 
 
 — V. Harris, 1115 
 
 — V. Inman, 46, 48, 49, 50, 323 
 
 — V. Phipps, 331 
 Tuckey v. Hawkins, 1776 
 
 — V. Henderson, 1158 
 Tugman v. Hopkins, 52 
 Tugwell V. Heyraan, 1679, 1681 
 
 — V. Scott, 956 
 Tulk V. Houlditch, 1133 
 TuUett V. Armstrong, 665 
 Tunstall v. Brachan, 1120 
 Tupper V. Tupper, 131, 155 
 Turcan, Fve, 1904 
 
 Turing v. Turing, 1330 
 Turner's case, 608 
 
 Turner, In the goods of, 132, 264, 349, 
 
 385 
 
 — He, 862, 992, 993 
 
 — V. Buck, 1286, 1605 
 
 — V. Cameron, 642 
 
 — V. Cameron's Coalbrook Companv, 
 
 1604 
 
 — V. Capel, 972, 978 
 
 — V. Connor, 1911 
 
 — V. Cox, 852. 1179, 1533 
 
 — V. Crane, 756 
 
 — V. Davies, 506, 1793 
 
 — 'v. Dorgan, 1908 
 
 — V. Hardey, 817, 820 
 
 — V. Martin, 1074, 1219, 1493 
 
 — V. MuUineux, 1508 
 
 — V. Newport, 1249 
 
 Turner 
 
 Ogden, 917, 919 
 Turner, 718, 1270, 1292, 
 
 1702, 
 1750 
 
 1196. 
 1197 
 
 Turpine v. Forreyner, 932 
 Turquand v. Kirby, 1626 
 Turwin v. Gibson, 854 
 Tussaud's Estate, Be, 1168, 1170, 
 
 Tweedale, In the goods of, 114 
 
 — V. Tweedale, 1059, 1157 
 Twigg's Estate, Me, 1359, 1360 
 Twining v. Powell, 1196, 1199 
 Twisden v. Twisden, 1371 
 
 — V. Wise, 749 
 Twycross v. Grant, 699 
 Twyford v. Trail, 409 
 Tylden v. Hyde, 575, 831 
 Tyler v. Bell, 296, 297, 1827, 1915 
 
 — ■ 1!. .Jones, 783 
 
 — V. Merchant Taylors Co. , 114 
 Tvndale r. Wilkinson, 1385 
 Tynt V. Tynt, 678 
 
 Tja-one v. Waterford, 946, 1041, 104S 
 Tyrrell's, Ladv, case, 674, 677 
 
 — V. Tyrrell, 1290 
 Tyson r. Jackson, 1927 
 Tytherleigh v. Harbin, 1077 
 
 U. 
 
 Udny v. Udny, 1395 
 Umbers v. Jaggard, 1122 
 Underhill v. Devereux, 597 
 Underwood v. Hatton, 1208 
 _— V. Jee, 1909 
 
 — V. Morris, 1140 
 
 — V. Stevens, 1724,' 1730, 1735, 
 
 1736 
 
 — V. Wing, 351, 402, 1072, 1136 
 United States, President of, v. Drummond. 
 
 1392 
 Upfill V. Marshall, 172 
 Upton V. Brown, 953 
 
 — r. Ferrers (Lord), 636 
 
 — V. Prince, 1194 
 
 — ■!'. Vanner, 1212 
 Urquhart v. Butterfield, 1395, 1397 
 
 — V. Fricker, 281 
 
 — V. King, 1342, 1346, 1348 
 
 — V. Urquhart, 983 
 Usher, Ex imrte, 855 
 Utterson v. Mair, 187, 1916 
 
 — V. Utterson, 134 
 Uttertoun Robins, 86, 88, 164 
 
 V. 
 
 Vachell v. Roberts, 1039, 1252 
 Vaisey?;. Reynolds, 628, 1051, 1052 
 Vanbrough v. Cock, 489 
 Van Bunan v. Pitliird, 1909
 
 XCVl 
 
 INDEX OF CASES. 
 
 Vance v. Vance, 669, 671 
 V:\ndcleiir r. Vandeleur, 1582 
 A'audeuberg v. Palmer, 1481 
 Vandergucht v. Blake, 1082 
 
 — V. De Blaquiere, 735 
 
 Vanderplank v. King, 1329 
 A'andeizee v. Aclom, 1080 
 A'ane v. Eigden, 803 
 
 Van Gelder & Co. v. Sowerby Bridge, &c., 
 
 1777 
 Van niicluive v. Nerinckx, 862, 1819 
 Van Hagan, He, 1322 
 Vanquelin v. Bonard, 298, 567 
 Vanthienen v. Vantbienen, 298 
 A^an Stranbenzee v. Monck, 87, 88, 326 
 Vanzelbn- r. Vanzeller, 1933 
 Vardon's Trusts, Fte, 1306 
 Vavlev V. AVinn, 1084, 1290 
 Vauchamp v. Bell, 930 
 Vaughan, He, 918, 921, 925 
 
 — V. Browne, 220 
 
 — V. Buck, 1024, 1039, 1252, 1278 
 
 — V. Lord Headfort, 947 
 
 — r. Thurston, 1936 
 
 — V. A^anderstegen, 1550 
 Vaux V. Henderson, 969, 1006 
 
 Vawdrv r. Geddes, 1096, 1097, 1101, 1109, 
 
 1113 
 A'eal r. A^eal, 686, 1280 
 Veale v. Gatesdon, 1852 
 Veghelman v. Kighlej', 1696 
 A^'eiga, In the goods of, 231, 367 
 A'elho V. Leite, 201 
 A''enning v. Lloyd, 1801 
 Veret v. Du])rez, 433 
 A^'ernon v. Curtis, 892 
 
 — V. Egmont, 1204, 1208 
 
 — r. Man vers, 1583 
 A'erulam, Lord, v. Batburst, 599, 968 
 A''ez V. Emery, 1698 
 
 A'ezey v. Janison, 923, 924, 1345 
 Vibart r. Coles, 883, 1848, 1S50 
 A'ickers r. Bell, 229, 1804 
 
 — V. Cowell, 571 
 
 — V. Pound, 1032 
 
 — V. Scott, 1248 
 
 A'iesca r. D'Aramburu, 306, 366 
 Vigor V. Harvvood, 1247 
 A'^igrass v. Hinfield, 1707 
 A'incent, He, 1908 
 
 — r. Newcombe, 1024, 1252 
 
 — V. Sharpe, 1520, 1523 
 A'iner v. Francis, 941, 1081 
 Alnnicombe v. Butler, 77, 91 
 Vivian v. Campion, 711 
 
 — V. Mills, 1099 
 Vlze V. Stoney, 1093, 1099 
 
 A'on Buseck, In the goods of, 10, 309 
 A'on BrockdorfF v. ilalcolm, 1324 
 A'orley v. Piichardson, 1330 
 A'owles, He, 1939 
 Vulliamy r. Xoble, 1520, 1618, 1623 
 
 A''ynior's case, 8, 107 
 
 A'yse r. Foster, 1744, 1745, 1752, 1756 
 
 AV, 
 
 AVacher, He, 1888 
 AVade v. Marsh, 797 
 
 — V. Saunders, 1282 
 AVadesworth v. Andrews, 503 
 AVadley v. North. 1105 
 AVadsworth I'. Guy, 1649 
 AVagner v. Mears, 281 
 AVagstafft'. Crosby, 1137, 1330 
 
 — v. AVagstaff, 176, 1302 
 AVain v. AVarlters, 1674 
 AVainford r. Barker, 842 
 AVainwright, In the goods of 1073 
 
 — r. Bendlowes. 1581 
 
 AVaise v. AVhitfield, 1581 
 AVait, He, 1324 
 AVaite v. Combes, 1052, 1054 
 
 — V. Littlewood, 937, 1333 
 
 — r. Templer, 971 
 
 — r. AVebb, 907, 922 
 
 — V. AVhorwood, 1896 
 AVake v. A^arah, 937, 1333 
 AVakefield v. Maffet, 1114 
 A\^akeham, In the goods of, 202 
 AV'alcot r. Hall, 1315 
 
 AValdo V. Calev, 923 
 AValdron v. Boulter, 973, 974 
 AValkers Estate, He, 1333 
 
 — case, 1633 
 AValker, In the goods of, 69 
 
 — He, 264 
 
 — V. Lord Camden, 996 
 
 — r. Carless, 354, 418 
 
 — V. Cook, 1256 
 
 — V. Hardwicke, 1576 
 
 — V. Hull, 1650 
 
 — r. Jackson, 1579, 1582 
 
 — V. Main, 1084, 1105, 1120 
 
 — r. Milne, 910 
 
 — V. Mower, 1096 
 
 — v. Shore, 944 
 
 — V. Smith, 100, 468 
 
 — r. Symonds, 1707, 1739 
 
 — V. Taylor, 1680 
 
 — V. Tipping, 483 
 
 — V. AValker, 1128 
 
 — V. AVetherell, 1274, 1275 
 
 — V. AVitter, 860 
 
 — • V. AA'^oodvvard, 1757 
 
 — V. AVoollaston, 427, 431, 438 
 AValkers v. Thorn, 100 
 
 AN'all V. Bushbv, 1893 
 
 — V. Colshead, 587 
 
 — V. Tomlinson, 748, 750, 1137 
 
 — V. AVall, 1288, 1291, 1508 
 AVallace v. Att.-Gen., 1446, 1502 
 
 — r. Auldjo, 1282 
 
 — r. Pomfret, 1169
 
 INDEX OF CASES. 
 
 XCVll 
 
 Waller v. Barrett, 1204 
 
 — v. Chil<ls, 903, 918 
 
 — V. Drakeford, G.'.-l, 1792 
 
 — V. Heseltine, 362 
 AVallich, In the goods of, 201 
 Walliuger v. "Wallinger, l-']07 
 Wallis V. Brightwoll, 1297 
 
 — V. Hodson, 1367, 1383 
 
 — r. Taylor, 1004 
 Wallop's Case, 7tV, 1450 
 
 — Trusts, Jic, 1459, 1502 
 Wallop, JEx parte, 1016 
 
 — V. Hewett, 1156 
 
 Walmsley v. Milue, 642 643, 646, 653, 
 
 659 
 AValpoIe v. Aptliorp, 1033 
 
 — V. Cliolmoi)duly, 156 
 
 — V. Lord Odbrd. 109, 167 
 Walrond v. Walrond, 1757 
 Walsh, In the goods of. Add. 
 
 — v. Gladstone, 474, 1157 
 
 — V. Walsh, 1262, 1368, 1384 
 
 — V. Wason, 1279 
 Walsham r. Stainton, 1613 
 Walter v. Hodge, 669, 683 
 
 — V. Makin, 995 
 
 — V. Maunde, 830 
 Walters v. Pfeil, 1794 
 
 — V. Walters, 8SS, 155S, 1561 
 AValton, Re, 971, 978 
 
 — V. Jaeobson, 412 
 
 — V. Walton, 1370, 1376 
 AVankford v. Wanklord, 205, 249, 250, 
 
 251, 255, 257, 258, 322, 342, 
 408, 788, 789, 893, 1176, 
 1177, 1178, 1179, 1181 
 
 Wansborough v. Dyer, 1675 
 
 Wansbrough v. Maton, 642 
 
 Warbrick v. Varley, lolO 
 
 AVard V. Audland. 1658 
 
 — V. Bevil, 931, 966 
 
 — V. Devon, 576 
 
 — V. Grey, 898. 977 
 
 — V. Lant, 1194 
 
 — V. Turner, 684, 685, 686,687,688,691 
 
 — V. Ward, 1327 
 
 — V. Yates, 1278 
 Warden v. Jones, 666 
 Warder v. Saunders, 778 
 Ware v. Cann, 1130 
 
 — V. Kowland, 987 
 Wargent v. Hellings, 134 
 Waring v. Dewbnry, 555 
 
 — V. Lee, 959, 962 
 
 — V. AVard, 1570 
 
 — V. Warhig, 22, 27, 30, 312 
 Warner's Settled Estates, lie, 1470 
 Warren, In the goods of, 385 
 WaiTen's Trusts, lie, 974, 1305 
 Warren v. Consett, 1866 
 
 — V. Kelson, 495 
 
 — V. Posllcthwaite, 1029 
 
 — V. Rudall, 922, 1134, 1310 
 
 W.K. 
 
 -VOL. I. 
 
 AYarren v. Warren, 1167 
 AVarrender v. AVarrender, 1393 
 AVarriner v. Rogers, 671 
 AVarter ^•. Anon., 1268 
 AVartnaby, In the goods of, 317 
 Warwick a;. Greville, 340, 359, 362, 363, 
 
 821 
 
 — V, Hawkins, 7 
 
 — v. Richardson, 1708 
 AVasney r. Earushaw, 1830 
 AVasse v. Heslington, 579 
 AVaterhonse v. Holmes, 913 
 AVaters, In the goods of, 404 
 
 — V. AVood, 1068 
 AVathen v. Smith, 1163, 1166 
 AVatkins, In the goods of, 87, 89 
 
 — V. Brent, 321, 432, 1794 
 
 — V. Cheek, 806, 1120, 1121 
 
 — V. Alaule, 812, 1945 
 
 — V. AVeston, 1129 
 
 — V. AVilliams, 1131 
 AVatmougli's Trusts, lie, 913 
 AYatson, In the goods of, 405 
 
 — Re, 554, 1678, 1945 
 
 — V. Birch, 1924, 1930 
 
 — V. Brickwood, 1580 
 — • r. Dennis, 744 
 
 — V. England, 1330 
 
 — V. Hayes, 1095, 1096, 1100, 1101 
 
 — V. Lord Lincoln, 1194 
 
 — V. Parker, 1905 
 
 — V. Reed, 1156 
 
 — r. Row, 1938 
 
 — V. Saul, 1927 
 
 — v. Tcone, 807, 1748 
 
 — V. AYatson, 1105. 1195, 1197, 
 
 1200 
 AYatt V. AYatt, 347 
 
 AYatts, Lithe goods of, 31, 272, 405, 44-i, 
 
 445, 450 
 
 — Re, 907, 908, 911 
 
 — r. Crooke, 1383 
 
 — T. Girdlestone, 1717 
 v. Rees, 1781 
 
 AYaugh, Re, 1776 
 
 — V. AYaugh, 1077 
 AYay v. Bassott, 1841 
 AYeale v. Ollive, 1658 
 AYeall, Re, 1905, 1937 
 
 — r. Rice, 1161, 1167, 1168, 1169 
 AYearing r. AYeariiig, 1039, 1252 
 AYeaver, In the goods of, 301, 306 
 
 — Re, 1912 
 
 AYebb, In the goods of, 79, 387, 418 
 
 — r. Adkiiis, 252, 255, 1780 
 
 — r. Byng, 178, 946, 1069, 1302 
 
 — V. De Jjeanvoisin, 1583 
 
 — V. Grace, 1141 
 
 — V. Jones, 1582 
 
 — r. Kelly, 1293 
 
 -- v. Kirbv, 407, 434, 438 
 
 — V. Xeedham, 354, 364, 373 
 
 — r. Sadler, 1003 
 
 9
 
 XCVlll 
 
 INDEX OF CASES. 
 
 Webb V. Lord Shaftesbury, 1306 
 Webber r. Corbctt, 1013 
 
 — V. Stanley, 939, 1011, 1012, 1070 
 
 — V. Webber, 1258 
 Webster's Estate, Re, 107(3 
 Webster v. Blackmail, 1853 
 
 — V. Boddiiigtou, 1116 
 
 — V. British Empire Co., 1880 
 
 — r. Hale, 1022, 1025, 1287 
 
 — V. Southej-, 917 
 
 — V. Spencer, 320, 762, 1707 
 
 — V. Webster, 216, 1129, 1326, 1623, 
 
 1843, 1928 
 Weddall V. Nixon, 326 
 Wedderburn v. Wedderburn, 573, 1521, 
 1744, 1745, 1748, 1752, 1753, 1922 
 Wedgwood v. Denton, 178 
 Weeding r. Weeding, 582 
 Weeds v. Bristow, 963 
 Weekes v. Trussell, 1607 
 Weeks v. Gore, 891 
 Weigall r. Brome, 1538 
 Weir, In the goods of, 349, 417, 455 
 Weiss V. Dill, 1767 
 AVelby v. EockclilTe, 1582 
 
 — V. Welby, 1304 
 Welcden r. Elkingtou, 1237 
 Welch r. Phillips, 134 
 Welchman v. Sturgis, 554 
 Weldale v. Partridge, 579 
 Wellesley v. Beaufort, 1273 
 
 Wells, Re, 1266, 1268, 1273, 1701, 1881 
 Wells' Estate, Re, 956, 957 
 
 — r. Fvdell, 1848 
 
 — V. Malbon, 1264 
 
 — V. Wells, 963 
 AVenham, Ra, 1700 
 
 — V. Wenham, 361 
 Wenmoth, Re. 944 
 Wensley, In the goods of, 384 
 AVentworth v. Cock, 1597, 1598 
 Werderman v. Societe Generals d'Elec- 
 
 tricite, 1776 
 Werner r. Huraphrej-s, 763 
 West, Ex parte, 1082 
 
 — V. Blakeway, 657 
 
 — V. Cole, 1583 
 
 — r. Lawson, 1046 
 
 — i: Jliller, 938 
 
 — V. Moore, 627, C28, 1051 
 
 — v. Orr, 1076 
 
 — r. Shuttleworth, 901, 902, 903, 904 
 
 — V. West, 1092, 1093 
 
 — V. Willby, 374, 390, 404, 417, 419 
 West of England Bank, Re, 1654 
 
 — r. Murch, 577 
 
 Western v. Chapman, 1936 
 AVeston, In the goods of, 131 
 
 — V. James, 860 
 AVestover v. Chapman, 1753 
 AVestwoodf. Southey, 1103, 1107 
 AVetdrill v. AVright, 374, 400, 402, 403 
 AYetenhall v. Dennis, 1940 
 
 AVetherby r. Dixon, 1199 
 AVetherell r. Howells, 625 
 
 — V. AVetherell, 1058 
 AVeyland r. AVevland, 1374 
 
 AVhale r. Booth, 561, 564, 801, 804, 805 
 AVharram v. Broughton, 780 
 
 — V. AVharram, 136, 319 
 AVharton v. Barker, 987 
 AVhateley v. Spooner, 1054 
 AVhatford v. ilooie, 1115 
 AVhaLman, In the goods of, 167 
 AVheatlev, Re, 1306 
 
 — " V. Lane, 695, 1593, 1600, 1601, 
 
 1616, 1692, 1743, 1847, 
 1860, 1864, 1866,1872 
 AVheeler, lu the goods of, 352, 402, 1073 
 
 — V. Adams, 987 
 
 — V. Alderson, 29, 35, 288 
 
 — V. Bingham, 1142 
 
 — V. Colfier, 1672 
 
 — V. AVarner, 1145 
 AVheelwright, In the goods of, 234 
 AVheldale r. AVheldale, 1899 
 
 AVhicker r. Hume, 51, 302, 465, 919, 921, 
 940, 1392, 1395 
 AVhieldou v. Spode, 1582 
 AVhiucup V. Hughes, 1650 
 AVhistler, Re, 578, 1923 
 
 — V. AVebster, 1304 
 AVhitacres v. Onslev, 1601, 1614 
 AVhitaker, Re. 663 ' 
 
 — r. Rush, 1903 
 
 — r, Tatham, 1349 
 Whitbread v. St. John, 944 
 AVhitcher v. Penley, 978 
 AVhitcomb v. AVhifcomb, 1398 
 
 AVhite, lu the goods of, 83, 112, 384, 1053 
 
 131 
 AVhite's Trusts, Re, 924, 979, 1329 
 AVhite, Re, 1888, Add. 
 
 — V. Baker, 1331 
 
 — V. Barton, 1883 
 
 — r. Baugh, 1722 
 
 — V. Briggs, 989 
 
 — V. Chitty, 1131 
 
 — V. Driver, 17 
 
 — V. Evans, 1346, 1347 
 
 — V. Hight, 937, 938 
 
 — V. Hill, 937 
 
 — r. Lake, 1513 
 
 — V. Alullett, 254 
 ■ — V. Repton, 104 
 
 — f. Trustees of the British Aluseum. 74 
 
 — V. Tyndall, 1615, 1617, 1775 
 
 — V. AVhite, 43, 918, 980, 1579 
 
 — r. AVilliams, 1339, 1348 
 • — V. AVilson, 24 
 
 AVhitehall r. Squire, 221. 344, 345 
 AVhitehead, Eje parte, 1270 
 
 — V. Sampson, 221 
 
 — r. Taylor, 243, 250, 255, 552 
 
 — V. AVhitehead, 729, 1031 
 AVhitehouse r. Partridge, 1932, 1933
 
 INDEX OF CASES. 
 
 XCIX 
 
 Whiteley, Re, 1940 
 
 — 11. King, 135, 296 
 AVliitfiekl v. Clemment, 1069 
 
 — V. Langdale, 1070 
 Whitliara, In the goods of, 234 
 Whitley v. Whitley, 1305 
 Whitmore v. Craven, 932 
 
 — V. OxhoiTow, 1905 
 
 — V. Trelawney, 932 
 Whittaker, Re, 669, 1288, 1658 
 
 — V. Kershaw, 1203, 1313 
 
 — V. Whittaker, 16-i-l 
 Whittell V. Dudin, 1138 
 AVhitteni v. Sawyer, 1282 
 Whittle V. Henning, 744, 1894 
 Whitworth v. Whyddon, 1881 
 Whopham v. Wingtield, 1264 
 Whorwood, Re, 1075 
 
 Whyte V. Rose, 296, 297, 302 
 
 — f. Whyte, 1156 
 Widdowson v. Duck, 1707 
 Widger, In the goods of, 387 
 Widmore v. Woodrotfe, 919, 9S0 
 Wigan V. Rowland, 900 
 Wifhtmen v. Townroe, 1683 
 Wightwick V. Lord, 1316, 1535, 1716 
 Wigley i: Ashtou, 1637, 1665, 1674 
 Wilbruhani v. Scarisbrick, 950 
 
 — r. Snow, 252, 557, 761 
 Wilcocks' Settlement, Re, 1131 
 Wilcox V. Gore, 677 
 
 — r. Huggins, 1789 
 
 — V. Smith, 1447 
 Wild's Case, 967 
 Wilday v. Barnett, 1323 
 
 — V. Sandys, 1252 
 Wildboret;. Gregory, 1324 
 Wilde, In the goods of, 409 
 
 — V. Waters, 641 
 
 — V. Wilde, 669 
 Wildes V. Davies, 1150 
 
 — V. Dudiow, 893, 1891 
 Wildman's Trusts, Re, 1079 
 AVildman v. Wildman, 747 
 AViles V. Gresham, 1697 
 AVilford's Estate, Re, 1328, 1341 
 Wilkes V. Lister, 1690 ^ 
 
 — V. Saunion, 1815 
 
 — V. Steward, 1707 
 Wilkins, Re, 1091, 1221, 1507, 1945 
 
 — V. Fry, 1632 
 
 — V. Hogg, 1735 
 
 — r. Jodrell, 1127, 1155 
 
 — V. Knipe, 1132 
 
 — r. Stevens, 1897 
 Wilkinson, In the goods of, 123, Add. 
 
 — Re, 1323, 1416, 1493, 1494, 
 
 1495 
 
 — V. Adam, 88, 953, 954, 956, 
 
 958 
 
 — V. Barber, 915, 1515 
 
 — V. Cawood, 1639, 1782 
 
 — V. Cliarlesworth, 738, 1283 
 
 Wilkinson r. Corfield, 313 
 
 — V. Dent, i;J05 
 
 — V. Duncan, 1116, 1249, 1250 
 
 — i\ Garrett, 988 
 
 — V. Gordon, 349 
 
 — i: Henderson, 1618 
 
 — V. Joughiu, 1016 
 
 — V. Lindgren, 923, 924 
 V. Schneider, 1322 
 
 — V. Wilkinson, 958, 1130, 1768 
 Wilks I'. Bannister, 965 
 
 — V. Groom, 1721 
 Willand v. Fenn, 821 
 Willeter v. Dobie, 1655 
 Willett V. Blanford, 1744, 1748, 1753 
 Williams. Ex parte, 1271, 1272 
 
 — In tlie goods of, 68, 69, 354, 
 
 461, 841 
 
 — Re, 921, 925, 1115, 1324, 1801, 
 
 1908 
 
 — Estate, Re, 862, 1849 
 
 — V. Arkle, 1344 
 
 — V. Ashton, 112, 113, 984 
 
 — V. leaker, 53, 135 
 
 — V. pjosanquet, 1635 
 
 — V. Breedon, 700, 701 
 
 — V. Burrell, 1596, 1598, 1632 
 V. Cary, 698 
 
 — V. Clark, 1097, 1111 
 
 — V. Davies, 669 
 
 — V. Evans, 154 
 
 — V. Fowler, 1851, 1852 
 
 — V. George, 1651 
 
 — V. Goodtitle, 161 
 
 — l: Goude, 22, 40, 313 
 V. Haythorne, 1113 
 
 — V. Headland, 1204 
 
 — V. Heales, 214 
 
 — V. Henery, 312 
 
 — V. Heusnian, 1326, 1341 
 
 V. Hughes, 1021, 1033, 1513 
 
 — V. Innes, 1536, 1856 
 
 — V. Jones, 121, 1084, 1347, 1349, 
 
 1944, 1949 
 
 — V. Jukes, 381 
 
 — V. Kershaw, 924 
 
 — i: Lee, 1231, 1829 
 
 — r. Lewis, 966 
 
 — V. Llandaff (Bishop of), 1582 
 
 — V. Lonias, 1550 
 
 — V. Nixon, 1691, 1726, 1727, 
 
 1730, 1734, 1705 
 
 — ^•. Owen, 1302 
 
 — V. Powell, 1295, 1753, 1755, 
 
 1758 
 
 — V. Teale, 943, 975 
 
 — V. Tylev, 117, 131 
 
 — 11. Wilkins, 364 
 
 — v. Williams, 835, 989, 1054, 
 
 1055, 1679 
 Williamson v. Advocate-General, 1489 
 
 — %: Naylor, 1074, 1492, 1699 
 
 — V. Norwitch, 220 
 
 i/2
 
 IXDEX OF CASES. 
 
 203 
 
 Williiio-r. Baine, 1084 
 "Willis r. Curtois, lO-l'.), 100." 
 
 — r. Ivimblo, 1705 
 
 — r. Lowe, 67 
 
 — V. Plaslvett, 1053 
 "Willmott r. Jenkins, 1-217 
 ■\Villock r. Noble, 47, 48, 49, 58, 170 
 Willonghby i\ :Middleton, 1300 
 "Willonghby-Osborne r. Holyoake, 1022 
 Willoxr. Rhodes, 1021, 1033 
 
 Wills V. Ricli, 250, 255, 427, 431 
 
 — r. Wills, 938 
 "Willson r. Canuichacl, 1757, 1700 
 
 — V. Pack, 672 
 Wilmer v. Currey, 1021, 1022 
 Wilniot, In the goods of, 196, 
 
 — V. riewitt, 1331 
 
 — r. Wilmot, 030, 937 
 
 — r. Woodhouse, 1170 
 Wilniott's Trusts, He, 1114 
 Wilson's Trusts, He, 940, 953 
 Wilson, In the goods of, 93, 107, 293 
 
 — He, 1386, 1810, 1812, 1820, Add. 
 
 — r. Atkinson, 953 
 
 — r. Beddard, 64 
 
 — V. Bennett, 830 
 
 — r. Brownsmith, 1025 
 
 — r. Coxwell, 885, 886, 891 
 
 — r. Darlington, 1500 
 
 — r. Ladv i)unsany, 852, 853, 864 
 
 — r. Hobday, 1833 
 
 — r. Hodsoii, 214, 1872 
 
 — r. Knnbley, 698, 1554 
 
 — r. Maddison, 1058, 1287 
 
 — r. Jloore, 803, 8U0 
 
 — r. Morley, 1009 
 
 — r. Mount, 1136 
 
 — V. Ogle, 847 
 
 — 7\ O'Leary, 1157 
 
 — r. PauL 884 
 
 — r. Sqiiire, 1946 
 
 — r. Todd, 1914 
 
 — r. Townshend. 1300 
 
 — r. Tucker, 1504 
 
 — r. Wigg, 1039, 1040 
 
 — r. Wikon, 735, 1120 
 Wiltshear r. Cottrell, 042 
 Wiltshire r. Rabbits, 003 
 Wimbles r. Pitcher, 985 
 Winch r. Brutton, 1281 
 
 — r. Winch, 1831 
 Winchconibe r. Bishop 
 
 1201 
 
 1101, 151.: 
 
 of 
 
 Winchester, 
 871, 1099 
 AVinchelsea, Lord, v. Garetty, 1562 
 
 — — V. Xorcli'tfe, 589, 1381 
 
 — — f. AVauehope. 80 
 Winchester's, Wanpiis of. Case, 34 
 Winchester, Bishop of, r. Knight, 1006 
 Winchlow v. Smith, 842 
 Winckworth v. Winckworth, 1129 
 Windeatt r. Sliarland, 380 
 Windham v. Graham, 949 
 
 — r. Windham, 1156 
 
 AVing r. Angi-ave, 1072, 1134 
 
 Wingtield v. Wingfield, 936, 909, 979, 1077 
 
 Wingi'ove v. Thompson, 778, 1880 
 
 — r. Wingrove, 43 
 Winn, In the goods of, 157, 158 
 
 — • r. Ingilb}', 648 
 Winsor r. Pratt, 129 
 AVinter, In the goods of, 300 
 r. D'Eyreux, 711 
 
 — V. Easuni. 744 
 
 — v. Innes, 1018, 1623 
 AVintour v. Clifton, 1305 
 AVise r. Aletcall'e, 1612 
 AVithers r. Bircham, 1775 
 AA'ithorn r. Harris, 980 
 
 AVithy r. Mangles, 361, 374. 084, 985. 
 
 988, 1327 
 AMtt r. Amis, 687 
 AVitter r. AVitter, 589 
 AVoUaston i: Hakewill, 1635 
 
 — r. King, 1304. 1307 
 
 — r. AVoilaston, 1006 
 AA'olyerhampton Bank r. ^Marston, 801 
 AVolyeridge. r. Steward, 1032 
 AVoherton Estates, He, 1012 
 
 AVood, He, 939, 1069 
 
 — r. Cox, 1005 
 
 — r. Gaynon, 650, 1067 
 
 — r. Hewett, 640 
 
 — r. Hitchings, 432 
 
 — r. Medley, 498 
 
 — r. Ordish, 1591 
 
 — r. Penoyre, 1239, 1287, 128S 
 
 — r. AA'eightman. 1207, 1822 
 
 — r. AVes'tall, 1016 
 
 — r. AVood, 36, 310,310,947.080,1822 
 AVood.all, He, 779, 1707 
 
 AVooclbridge r. Spooner, 1481 
 AVoodcock V. Do?set, Duke of, 1114 
 
 — t: Hern, 872 
 
 — r. Renneck, 1080 
 AVoodgater. Field, 1802, 1905, 1908, 1916 
 
 — r. Unwin, 1328 
 AVoodhead v. Turner, 1582 
 AVoodhouse r. Balfour, 75, 77 
 
 — V. AValker, 1000 
 
 — r. AVoodhouse. 1022 
 AVoodhouselee r. Dalrymiile, 056 
 AVoodley, In the goods of, 67 
 AVoodman r. Chapman, 1052 
 Woodmeston )•. AValker, 1002 
 AA'oodroif r. AVinkworth, 1382 
 AVoods, In the goods of, 103 
 
 — r. Huntingford, 1507 
 
 — r. AVoods, 990 
 AA'oodward, In the goods of, 121, 122 
 
 — V. Gouldstoue, 130, 295, 318, 
 
 319 
 
 — V. Lord Darcy, 5, 884, 1177, 
 
 1181, 1182 
 AVoodvcr v. Grcsham, 758 
 AVookey r. Pole. 1042 
 AVooldridge v. Bishop, 342
 
 INDEX OF CASES. 
 
 Ci 
 
 "VVoolleyr. Clark, 221, 501, 506, 551, 552 
 
 — V. Giceii, 404, 446 
 Woolricli, lie, 1077 
 AV'ootou ('. Cooke, 711 
 ■\Voids\vorth v. Wood, 1330 
 Worley v. Worley, 1691 
 Woilidge V. Churchill, 1082 
 AVorinald v. iluzeen, 1212, 1213 
 Woruiaii, In the goods of. 55, 348 
 Wormsley's Estate, Jic, 1572 
 "Wonal V. Hand, 1521 
 "W'orsley v. Johnson, 982 
 
 "Worth ill gton v. Barlow, 1675, 1676 
 
 — V. Evans, 1143 
 
 Worts r. Culiitt, 956, 957 
 Wotton, In the goods of, 70 
 Wraiigham's Trust, Jic, 1095 
 Wray v. Field, 1156, 1159 
 Wren v. Kirton, 1721 
 Wrench r. Jutting, 1318 
 
 — V. Murray, 32 
 
 Wrey, lie, 1093, 1097, 1099, 1103 
 
 — V. Smith, 1247 
 Wride V. Ckrke, 1592 
 
 Wri^rht, In the goods of, 70, Add. 
 
 — V. Atkyus, 976, 98u 
 
 — V. Cadogan, 1159 
 
 — V. Calleiider, 1213, 1221 
 
 — V. Lambert, 1246, 1249, 1250 
 
 — V. Netherwood, 1073 
 
 — V. Rogei-s, 78, 92, 423 
 
 — V. Kose, 604 
 
 — v. Sanderson, 74, 76, 91 
 
 — V. Sarmuda, 1073 
 
 — V. Swindon Ey Co., 778 
 
 — V. Vanderplank, 1922 
 
 — V. Warren, 1303, 1649 
 
 — V. Weston, 1214, 1224 
 
 — V. Wilkin, 1125 
 
 — V. Wright, 74, 588 
 Wrightson v. Calvert, 1018 
 ^^'rigkyi'. Sykes, 575, 576 
 Wrotesley v. Adams, 613 
 "Wroughton v. Colquhoun, 1221 
 Wrout V. Dawes, 1781 
 Wyatt, Exparte, 1898 
 
 — In the goods of, ISO 
 
 — V. Berry, Add. 
 
 — V. Hodson, 1839 
 
 — r. Sharratt, 1884, 1885 
 Wycli V. East India Conipanv, 1801 
 Wyche, He, 1942 
 
 Wyckotr, In the goods of, 367, 333 
 
 Wykham v. Wykham, 934 
 
 Wylie V. Wylie, 1052 
 
 Wynch, Ex parte, 967, 971, 972, 973 
 
 — V. Wynch, 1269, 1291 
 Wyndham's Trusts, Re, 975, 992 
 Wymlham v. Way, 625 
 
 Wynn v. Heveringhani, 114 
 Wynne v. Hughes, 1908 
 
 AVynne v. Wynne, 1123 
 Wyrall v. Hall, 5 
 Wytcherley v. Andrews, 279 
 Wyth V. Blacknian, 952 
 Wythe V. Henniker, 1563, 1564 
 
 Yaites v. Gougli, 793 
 Yalden, Re, 1131 
 Yard v. EUard, 1696, 1697 
 Yardley v. Arnold, 218, 838 
 Yare r. Harrison, 1882 
 Yates I'. Compton, 235, 1061 
 
 — r. Finn, 1745 
 
 — r. iladdan, 1296 
 
 — X. Phettiplace, 1118 
 
 — v. Thompson, 307 
 
 — V. University College, Loudon. 1123 
 
 — V. Yates, 1062, 1245 
 Year worth v. Pierce, 643 
 Yeatmau '(•. Yeatman, 1918 
 Yeats V. Yeats, 1017 
 Yellowly v. Gower, 1605 
 Yeomans y. Haynes, 1946 
 Yockney r. Hansard, 1156, 1157 
 Yonge V. Furse, 1570 
 
 York, Re, 1912 
 
 — V. Brown, 1761 
 Young, In the goods of, 455 
 Young's Settlement, 7i!', 1255 
 Young V. Brown, 429, 430 
 
 — T. Cawdrey, 1854 
 
 — V. Cordery, 1854 
 
 — r. Davies, 1080 
 V. Dendy, 311 
 
 — r. Hassard, 1583 
 
 — r. Holmes, 122S. 1237 
 
 — c Hughes, 457 
 
 — 'c. Macintosh, 1095 
 
 — V. Munby, 1613 
 
 — V. Uxley, 457 
 
 — v. Fierce, 374, 412 
 
 — V. Radford, 610 
 
 — t. Ptiehards, 92 
 
 — r. Walter, 1893 
 
 — V. Waterpark, Lord, 1927 
 Younge v. Furse, 1132 
 Younghu.sband v. Gisborne, 1272 
 Youngs, Re, 1891 
 
 Ysted X. Stanley, 402 
 
 Z. 
 
 Z.VCHARIAS V. CoUis, 44, 45, 
 Zambaco v. Cassavelli, 1909 
 Zealley v. Veryard, 248 
 Zouch V. Forse, 601 
 — V. Lambert, 1347 
 
 200
 
 TABLE OF STATUTES, EULES AND 
 OEDEES CITED. 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 20 Hen. III. c. 2 . 
 
 . 631 
 
 5 W. & M. c. 21, s. 3 . 
 
 . 538 
 
 3 Eihv. I. c. 4 . . 
 
 . 735 
 
 9 & 10 Will. III. c. 25, s. 19 
 
 
 538 
 
 7 Edw. I. Stat. 2 [3fortmain] . . 718 | 
 
 c. 41, s. 6 
 
 
 44 
 
 13 Eihv. I. Stat. 1, c. 23 . 
 
 . 696 
 
 4 & 5 Ann. c. 16, s. 19 
 
 
 
 1842 
 
 4 Edw. III. c. 7 . 097 
 
 , 699, 702, 703 
 
 s. 27 . 
 
 
 
 1828 
 
 25 Edw. III. Stat. 5, c. 5 
 
 . 788 
 
 8 Ann. c. 14 . 
 
 
 
 1873 
 
 27 Edw. III. 3tat. 2, c. 9 
 
 . 866 
 
 3 Geo. I. c. 15, s. 8 
 
 
 
 1603 
 
 31 Edw. III. Stat. 1, c. 11 
 
 341, 346, 373, 
 
 5 Geo. II. c. 7, s. 4 
 
 
 
 1531 
 
 
 374, 695, 696 
 
 8 Geo. II. c. 13 . 
 
 
 
 724 
 
 1 Rich. II. c. 12 . 
 
 . 1601 
 
 c. 24, s. 4 
 
 
 
 1780 
 
 21 Hen. VIII. c. 4 . 
 
 . 821 
 
 9 Geo. II. e. 36 [Mortmaiii] 
 
 907, 908, 
 
 c. 5, s. 3 346, 352, 374 
 
 , 400, 452, 1358 
 
 
 917, 923 
 
 s. 8 . 
 
 . 225 
 
 14 Geo. II, c. 20, s. 9 . 
 
 . 1539 
 
 23 Hen. VIII. c. 6 . 
 
 . 867 
 
 17 Geo. II. c. 38, s. 3 
 
 
 
 856 
 
 24 Hen. VIII. c. 12, s. 5 
 
 . 488 
 
 19 Geo. II. c. 37, s. 4 
 
 
 
 813 
 
 25 Hen. VIII. c. 19 
 
 . 488 
 
 7 Geo. III. c. 38 . 
 
 
 
 724 
 
 28 Hen. VIII. c. 11 
 
 . 630 
 
 14 Geo. III. c. 78 . 
 
 
 
 1643 
 
 32 & 34 Hen. VIII. 
 
 . 1, 4, 717 
 
 17 Geo. III. c. 57 . 
 
 
 
 724 
 
 32 Hen. VIII. c. 28 
 
 . 741 
 
 20 Geo. III. c. 28 . 
 
 
 
 1409 
 
 c. 34 ... 
 
 . 1631 
 
 23 Geo. III. c. 58 . 
 
 
 
 1409 
 
 c. 37 
 
 757, 788, 797 
 
 29 Geo. III. c. 51 . 
 
 
 
 1409 
 
 33 Hen. VIII. c. 39 
 
 . 855 
 
 32 Geo. III. c. 57 . 
 
 
 723, 1650 
 
 34 Hen. VIII. c. 5 
 
 . 46 
 
 33 Geo. III. c. 54, s. 10 
 
 
 . 856 
 
 1 Ed. VI. c. 2 
 
 . 225 
 
 36 Geo. III. c. 52 {Legacy But 
 
 y ^rf, 
 
 c. 14 
 
 . 901 
 
 1796] 
 
 1410 ct sccj. 
 
 1 Eliz. c. 1 . 
 
 . 488 
 
 s. 32 . . 1253, 
 
 1263, 1818 
 
 13 Eliz. c. 5 . 
 
 . 503 
 
 37 Geo. III. c. 119 . 
 
 . 1531 
 
 c. 10, s. 2 
 
 . 1609 
 
 38 Geo. III. c. 87, s. 1 
 
 
 , 435 
 
 43 Eliz. c. 4 . 
 
 . 917 
 
 ss. 2, 3, 4, 5 . 
 
 
 . 436 
 
 21 Jac. I. c. 16 [LimUaiions] 1788, 1791, 
 
 s. 6 . 
 
 4 
 
 L7, 421, 424 
 
 
 1837, 1922 
 
 s. 7 . 
 
 
 . 421, 8.32 
 
 17 Car. II. c. 8, s. 2 
 
 . 779 
 
 39 & 40 Geo. III. c. 72, s 
 
 . 16 
 
 . 537 
 
 22 & 23 Car. II. c. 10 [Distriluiio7is] 347, 
 
 c. 88, s. 10 
 
 
 . 10 
 
 363, 416, 
 
 452, 840, 1353, 
 
 41 Geo. Ill, c. 86, s. 3 
 
 
 . 537 
 
 1356, 1377, 1378 
 
 43 Geo. III. c. 107 . 
 
 
 . 919 
 
 29 Car. II. c. 3 [Slatute of 
 
 Frauds] 62, 64, 
 
 c. 108 
 
 
 . 919 
 
 73, 78, 80, 82, 
 
 84, 85, 89, 104, 
 
 45 Geo. Ill, c. 28, s. 4 
 
 
 . 1440 
 
 111, 119, 163, 
 
 347, 601, 623, 
 
 s. 5 
 
 
 . 1441 
 
 666, 1 
 
 357, 1538, 1674 
 
 47 Geo, III. c. 74 . 
 
 
 . 1559 
 
 30 Car. II. c. 7 
 
 . 1867, 1872 
 
 48 Geo. III. c. 149 [Stamp Du 
 
 ly Act, 
 
 c. 12 
 
 . 1601, 1742 
 
 1808] 
 
 1442, 1487 
 
 1 Jac. II. c. 17 . 
 
 . 1378 
 
 s. 35 . . . 
 
 . 634 
 
 3 W. & M. c. 14 . 
 
 . 446, 1559 
 
 s. 36 . 
 
 . 635 
 
 4 & 5 W. & M. c. 20 
 
 . 862, 881 
 
 .s. 37 . . . 
 
 . 53G 
 
 c. 24, s. 12 
 
 . 1601, 1872 
 
 s. 44 , 
 
 
 
 . 1432
 
 civ TABLE OF STATUTES, RULES AND OKDEES CITED. 
 
 PAGE 
 
 53 Geo. in. c. 127 . . . 61, 225 
 
 54 Geo. III. c. 56 . . . . 724 
 
 55 Geo. in. G. 60, s. 4 . . . 44 
 
 c. ISi [Stamp Duty Ad. lSli>] . 1405 
 s. 8 . . . . 534, 538 
 s. 37 . . 227, 265, 526, 840 
 ss. 38 to 51 . . . 526 
 59 Geo. III. c. 12, s. 8 . 
 7 & 8 Geo. IV. c. 29, s. 23 . 
 9 Geo. IV. c. 14 [Lord Tentcrdcns 
 
 Ad] 1837, 1838 
 
 . 1533 
 
 c. 56 . 
 
 & 1 Will. IV 
 
 -533 
 917 
 636 
 
 c. 33 
 
 10 Geo. IT 
 
 11 Geo n' 
 
 c. 41, s. 5 
 c. 47 
 
 1 Will. IV. 
 
 c. 47, s. 2 
 s. 3 
 s. 4 
 s. 6 
 s. 8 
 s. 9 
 
 2 & 3 Will. l\ 
 
 s. 25 . 
 
 s. 26 . 
 
 s. 28 . 
 c. 93 
 c. 115 
 
 3 & 4 Will. IT 
 
 s. 6 
 
 s. 25 . 
 
 s. 40 . 
 
 s. 42 . 
 
 c. 42, s. 2 
 
 40 
 
 c. 20 
 
 19 
 
 . 856 
 44, 106 
 
 . 395 
 
 . 446 
 
 134.3, 1349 
 
 . 1555 
 
 . 1555 
 
 . 1556 
 
 . 1556 
 
 . 1557 
 
 . 1557 
 
 . 395 
 
 . 395 
 
 . 396 
 
 . 396 
 
 . 225 
 
 . 902 
 
 27 [Limitcdions] 
 
 . 557, 1801 
 . 1926 
 1924, 1925 
 . 1926 
 700, 702, 160n, 1603, 
 1607, 1799 
 s. 3 . . . 1791, 1845 
 
 s. 13 1828 
 
 s. 14 1828 
 
 s. 37 800 
 
 s. 38 800 
 
 c. 74 [Fines and llccovcrics] 
 
 s. 27 566 
 
 c. 92 490 
 
 c. 104 . 678, 1.558, 1585, 1586, 1587. 
 
 1589, 1596 
 
 c. 105 [Doiccr Ad] 
 
 s. 4 . 
 
 s. 7 
 
 1 Vict. c. 2(S [Wills Ad, 1837] 
 
 s. 7 
 
 s. 8 
 s. 9 
 
 s. 10 . 
 s. 12 . 
 c. 106 [Amendment 
 Inheritance] 
 s. 6 . 
 
 of Lav: of 
 
 6 & 7 TVill. IV. c. 32 
 c. 59 
 
 1 Vict. c. 26 [Wilis Act, 1837] 
 s. 1 . 
 
 s. 3 . . .3, 4, 174. 601 
 .s. 6 . . . . 601, 1540 
 
 1309 
 1309 
 1309 
 1309 
 1310 
 1219 
 
 1588 
 359 
 
 397 
 724 
 
 3, 63 
 
 s. 9 
 
 s. 10 
 s. 11 
 s. 13 
 s. 15 
 s. 17 
 s. 18 
 s. 19 
 .s. 20 
 s. 21 
 s. 22 
 s. 23 
 s. 24 
 
 s. 25 . 
 s. 26 . 
 s. 27 . 
 s. 29 . 
 s. 30 . 
 s. 31 . 
 s. 33 . 
 s. 34 . 63, 1 
 
 1 & 2 Vict. c. 110 . 
 
 2 & 3 Vict. c. 11, s. 4 
 
 c. 93 
 
 3 & 4 Vict. c. 88 . 
 
 c. 110, s. 11 . 
 c. 113, s. 42 . 
 
 5 & 6 Vict. c. 45 . 
 
 c. 79, s. 23 
 c. 82, s. 36 
 c. 100 
 
 6 & 7 Vict. c. 65 . 
 
 c. 73 [Solicitors Act, 
 s. 37 . 
 s. 38 . 
 
 7 & 8 Vict. c. 73 . 
 
 8 & 9 Vict. c. 76, s. 4 
 
 c. 112 
 
 9 & 10 Vict. c. 59 . 
 
 c. 93 [Lord CamjJbcU 
 s. 1 
 
 s. 2 . 
 s. 3 . 
 .s. 4 . 
 s. 5 
 10 k 11 Vict.'c. 96 [T, 
 Ad, 1847]. 
 
 12 & 13 Vict. c. 74 [Ti 
 
 Act, 1849]. 
 
 13 & 14 Vict. c. 35 
 
 c. 60 [Trustee Act, 1 
 
 12 
 
 46, 179, 309 
 
 63, 64, 72. 73, 75, 81, 104, 
 
 271, 294, 308 
 
 . 308, 309 
 
 63, 104, 332 
 
 63, 78 
 
 . 898, 1762 
 
 . 284, 1322 
 
 . 160 
 
 . 156, 161 
 
 10, 111, 120, 125, 131, 153 
 
 82, 110, 111, 123 
 
 152, 163, 168, 172 
 
 . 582, 1192, 1193 
 
 .46,47, 58, 175, 1023, 
 
 1192, 1193, 1298, 
 
 1.301 
 
 586, 1318, 1319 
 
 929 
 
 14 k 15 Vict. c. 25, s. 1 
 s. 3 . 
 c. 99, s. 2 
 
 -', 1 
 
 1813] 
 
 1.321, 1323 
 . 966 
 . 604 
 . 605 
 . 1085 
 53, 170, 179 
 . 862 
 . 863 
 909, 910 
 909, 910 
 . 397 
 . 595 
 . 724 
 . 533 
 . 538 
 . 724 
 . 724 
 
 . 1775 
 
 . 1776 
 
 . 909 
 
 1442, 1443, 
 1484, 1487 
 
 . 1543 
 
 . 902 
 
 's Act] 
 
 703 
 704 
 705 
 705 
 706 
 ustcc llclicf 
 
 1817, 1820 
 ustcc llclicf 
 
 . 1818, 1819 
 . 1824 
 850] 1887, 1S88, 
 1889 
 628 
 655 
 285
 
 TABLE OF STATUTES, RULES AND ORDERS CITED. 
 
 CV 
 
 15 Vict. c. 24 [Wills Act Amcnd- 
 
 20 & 21 Vict, c 
 
 . 77 [Court of Probate 
 
 oncnt Act] 
 
 Act, 1857] 
 
 s. 1 67 
 
 ss. 55, 56, 57. . . . 247 
 
 s. 2 71 
 
 s. 58 . 
 
 . 248 
 
 s. 3 72 
 
 s. 59 . 
 
 
 . 247 
 
 s. 4 72 
 
 s. 61 . 
 
 
 . 283, 478 
 
 15 & 16 Vict. c. 55 [Trustee Act Ex- 
 
 s. 62 
 
 
 . 283, 479 
 
 tension Act, 1852] . . 1889 
 
 s. 63 . 
 
 
 . 283, 480 
 
 c. 76 [Common Law Procedure 
 
 s. 64 
 
 
 . 263, 328, 481 
 
 Act, 1852] 
 
 s. 65 
 
 
 . 482 
 
 s. 11 1843 
 
 ss. 66, 6 
 
 7, QS 
 
 , 69 . . . 262 
 
 s. 18 459 
 
 s. 70 
 
 
 . 428, 432, 433 
 
 s. 55 1779 
 
 s. 71 
 
 
 . 429, 433 
 
 s. 129 1869 
 
 .s. 72 
 
 
 . 431 
 
 s. 136 1616 
 
 s. 73 
 
 .3*06, 353, 382, 383, 384 
 
 c. 86, s. 44 . . 1879, 1880 
 
 s. 74 
 
 
 . 435 
 
 16 & 17 Vict. c. 51 [Succession Dutij 
 
 s. 75 
 
 
 . 465, 487 
 
 Act, 1853] . . 1445 ct scq. 
 
 s. 76 
 
 
 . 505 
 
 c. S3 [Evidence Amendment Act, 
 
 s. 77 
 
 
 466, 500, 504, 506 
 
 1853] s. 1 . . . .285 
 
 s. 78 
 
 
 . 500 
 
 c. 137 [Gharitahlc Trusts Act, 
 
 s. 79 
 
 228 
 
 , 233, 409, 1176, 1239 
 
 1853] 926 
 
 s. 80 
 
 
 . 453 
 
 17 & 18 Vict. c. 47 . . . . 285 
 
 s. 81 
 
 
 454, 456, 458, 1950 
 
 c. 104 [Merchant Shipping Act^ 
 
 s. 82 
 
 
 . 454, 461 
 
 s. 199 394 
 
 s. 83 
 
 
 . 455 
 
 s. 201 395 
 
 s. 86 
 
 
 . 245 
 
 c. 113 [Loclx King's Act] . . 1570 
 
 s. 87 
 
 
 . 245, 457, 1950 
 
 c. 125, s. 27 . . . . 287 
 
 s. 88 
 
 
 . 245 
 
 18 & 19 Vict. c. 122 [Metropolitan 
 
 s. 91 
 
 
 . 264 
 
 Buildincj Act, 1855] . . 1643 
 
 c. 79, s. 95 
 
 . 296, 299 
 
 c. 124, s. 22 . . . . 1819 
 
 c. 85 [Matrimonial Causes Act, 
 
 19 & 20 Vict. c. 41, s. 5 . . . 395 
 
 1857] 
 
 c. 94 1403 
 
 ,s. 21 . . . 55, 348, 1276 
 
 c. 97 [Mercantile Law Amend- 
 
 s. 25 . . 55, 664, 672, 1276 
 
 ment Act] 
 
 21 & 22 Vict. c. 56, ss. 9, 12, 14 . 296, 
 
 s. 3 1674 
 
 298, 464 
 
 s. 10 . . . 1791, 1842 
 
 c. 95 [Court ofProiateAct,lS5S] 
 
 s. 13 1838 
 
 s. 10 . . . . 246, 247 
 
 s. 14 1839 
 
 s. 12 . 
 
 
 . 247 
 
 20 & 21 Vict. c. 57 [Mcdins Act] . 1281 
 
 s. 13 . 
 
 
 . 247 
 
 c 77 [Coicrt of Probate Act, 1857] 
 
 H. 14 . 
 
 
 . 239 
 
 s. 2 238 
 
 s. 15 . 
 
 
 . 457 
 
 s. 3 . 
 
 . 237, 241 
 
 s. 16 . 
 
 
 226, 232 
 
 s. 4 . 
 
 . 237, 241 
 
 s. 17 . 
 
 
 . 245 
 
 s. 13 . 
 
 . 266 
 
 s. 18 . 
 
 
 437, 438 
 
 s. 22 . 
 
 1792, 1793 
 
 s. 19 . 
 
 
 . 557 
 
 s. 23 . 238, 239 
 
 244, 1950, 1952 
 
 s. 20 . 
 
 
 . 245 
 
 s. 24 . 
 
 . 244 
 
 s. 21 . 
 
 
 . 429 
 
 s. 25 . 
 
 . 245 
 
 s. 22 . 
 
 
 . 429 
 
 s. 26 . 
 
 . 259 
 
 s. 23 . 
 
 
 , 260 
 
 s. 29 . 
 
 . 269 
 
 s. 25 . 
 
 
 . 268 
 
 s. 30 . 
 
 269, 270, 389 
 
 s. 26 . 
 
 
 . 267 
 
 s. 31 . 
 
 . 285 
 
 s. 29 . 
 
 
 . 296 
 
 s. 32 . 
 
 . 2S6 
 
 c. 108, s. 7 
 
 
 55, 794 
 
 .s. 33 . 
 
 . 284, 286 
 
 22 Vict. c. 30, s. 1 
 
 
 . 299 
 
 s. 46 . 
 
 . 266 
 
 22 & 23 Vict. c. 35 [Lord St. Leonard's 
 
 .s. 47 
 
 . 266 
 
 Act] 
 
 s. 48 . 
 
 . 266 
 
 s. 14 577 
 
 s. 49 . 
 
 . 266 
 
 s. 16 
 
 
 . 575, 577 
 
 s. 51 . 
 
 . 268 
 
 s. 26 
 
 
 . 784 
 
 s. 52 . 
 
 . 268 
 
 s. 27 
 
 
 1204, 1631, 1822 
 
 s, 53 . 
 
 . 496 
 
 s. 28 
 
 
 
 . 1594
 
 CVl TABLE OF STATUTES, RULES AND ORDERS CITED. 
 
 22 k 23 Vict. c. 35 [Lord St. Leonard's 
 Ad] 
 
 s. 29 . 1206, 1313, 1693, 
 
 1822 
 
 s. 30 
 
 1823 
 
 s. 31 . 1722, 1727, 1735, 
 
 1739 
 
 23 Vict. c. 5 
 
 302 
 
 c. 34 
 
 1437 
 
 23 & 24 Vict. c. 15, ss. 4, 5 . 
 
 550 
 
 c. 38, ss. 3, 4 . 
 
 862 
 
 s. 9 
 
 1824 
 
 s. 13 
 
 1925 
 
 s. 14 
 
 1781 
 
 c. 134 
 
 902 
 
 c. 145 [Lord Cramcortli s Act] 
 
 
 s. 26 
 
 1265 
 
 s. 30 
 
 1694 
 
 s. 34 
 
 1265 
 
 24 & 25 Vict. c. 92, s. 3 . 
 
 533 
 
 c. 97, s. 23 
 
 636 
 
 c. 114 [Lord Kinrjsdown' s Act] 
 
 
 s. 1 
 
 308 : 
 
 s. 2 . . . . 305, 309 
 
 s. 3 . . . . 302, 309 
 
 ss. 4, 5 
 
 310 I 
 
 c. 121 .. . 302, 367, 
 
 1400 
 
 25 & 26 Vict. c. 68 . 
 
 724 ! 
 
 c. 89 [Corapanics Act, 1862] 
 
 
 s. 16 
 
 1626 
 
 s. 22 
 
 720 
 
 s. 75 . 
 
 1626 
 
 s. 76 
 
 1626 
 
 .s, 78 
 
 1655 
 
 s. 99 
 
 1627 
 
 s. 105 
 
 1627 
 
 s. 165 
 
 1600 
 
 Articles 12, 13 . . 1627 
 
 1628 
 
 26 & 27 Vict. c. 57 . 
 
 857 
 
 ss. 15, 16 . 
 
 396 
 
 27 & 28 Vict. c. 36, s. 3 . 
 
 395 
 
 c. 56 
 
 813 
 
 ss. 4, 5 
 
 525 
 
 c. 95, ss. 1, 2 . 
 
 706 
 
 c. 114 [Improvement of Land Act, 
 
 
 1864] 
 
 
 s. 60 
 
 1714 
 
 28 & 29 Vict. c. 72, s. 2 . . 106, 332 | 
 
 s. 3 
 
 332 
 
 .ss. 4, 5 
 
 333 
 
 ss. 6, 7 
 
 334 
 
 c. 78 
 
 1714 
 
 c. 104, s. 55 . 
 
 1476 
 
 s. 57 . . . 265, 53 
 
 8, 840 
 
 c. Ill [Xavy and Ilarmcs (Pro 
 
 
 2>ertij of Deceased) Act] 
 
 
 ss. 3, 4 . 
 
 392 
 
 ss. 5, 6, 7 . 
 
 392 
 
 ss. 8, 9, 10, 11 . 
 
 393 
 
 ss. 13, 15 . . . 
 
 394 
 
 30 & 31 Vict. c. 23, ss. 3, 4 . 
 
 813 
 
 c. 69 [Loc7:e Kinrjs Act Amend 
 
 - 
 
 mcnt Act, 1867]. 
 
 1573 
 
 SI & 32 Vict. c. 109 
 
 1651 
 
 PAGE 
 
 31 & 32 Vict. c. 124, s. 9. . . 1439 
 b2 & 33 Vict. c. 46 [Hindc Palmer's 
 
 Act] 862, 865, 869, 885, 1549, 1849 
 
 c. 62 [Debtors Ad, 1869] 1930, 1931, 
 
 1933, 1934 
 
 33 & 34 Vict. c. 14 [Xaturalizatioa 
 
 Act, 1870] 
 s. 2 . . .9, 184, 309, 898 
 c. 20 [Mortgage Debenture Act, 
 
 1865, Amendment Act] . 1714 
 
 c. 23 [Felony Act, 1870] . 60, 61, 
 
 373, 558, 1276, 1284, 1285 
 
 c. 35 [Apiyortionment Act] 
 
 s. 2 . . . . 729, 1031 
 
 ss. 3, 4, 5 . . . . 730 
 
 ss. 6, 7 731 
 
 c. 71 [National Debt Act, 1870] 
 
 s. 23 . . . 722, 819, 1227 
 c. 93 [Married Women's Property 
 
 Act, 1870] . . . 660, 1276 
 
 34 & 35 Vict. c. 27 [Debenture Stock 
 
 Act, 1871]. . . . 1714 
 c. 43 [Ecclesiastical Dilapida- 
 tions Act] . . 876, 877, 1611 
 
 35 & 36 Vict. c. 44 [Chancery Funds 
 
 ^d, 1872] . . . 1263 
 
 36 k 37 Vict. c. 52 [Intestates- Widows 
 
 and Children Act, 1873] 
 s. 1 . . . . 248, 390 
 ss. 2, 3, 4 . . . 249, 390 
 ss. 5, 6, 7 . . . . 390 
 c. 66 [jitidicature Act, 1873] 
 
 s. 3 239 
 
 s. 4 239 
 
 s. 16 . . . 240, 342, 1474 
 s. 18 (subs. 4) . . . 1477 
 
 s. 19 490 
 
 s. 22 240 
 
 s. 23 240 
 
 s. 24 (subs. 7) . . . 433 
 
 s. 25 (subs. 2) . 1925, 1926 
 
 .(subs. 4) . . . 563 
 
 (subs. 6) . . 734, 818 
 
 (subs. 8) . 1952, 1953 
 
 (subs. 11) . 563, 806, 823, 
 
 1176,1535,1705,1850 
 
 s. 31 240 
 
 s. 34 . . . . 240, 244 
 
 37 & 38 Vict. c. 42 [Building Societies 
 
 Act, 1874] 
 
 .•=.7 397 
 
 s. 29 397 
 
 c. 57 [PmiI Property Limitation 
 
 Act, 1874] 
 
 s. 8 1924 
 
 s. 10 1925 
 
 38 & 39 Vict. c. 27 [Intestates' Widows 
 
 and Children Act Extension 
 Act, 1875] . 249, 391, 517 
 
 c. 60 [Friendly Societies Act, 
 1875] 
 s. 15 . . . . 397, 857
 
 TABLE OF STATUTES, RULES AND ORDERS CITED. CVll 
 
 38 & 39 Vict. c. 77 {Judicature Ad, 
 
 1875] 
 s. 10 . . 858, 861, 871, 884, 
 892, 1547, 1587 
 s. 11 . . . . 241, 244 
 
 s. 18 270 
 
 c. 83 [Local Loans Act, 1875J, s. 27 1714 
 c. 92 [Agricultural Holdings Act, 
 
 1875], s. 53 . . . 655 
 
 39 & 40 Vict. c. \S[Trcasury Solicitor 
 
 Act, 1876] 
 ss. 1, 2, 3, 4, 5 . 
 
 s. 9 
 
 , 371 
 , 372 
 
 2, 454 
 , 397 
 . 397 
 . 299 
 
 c, 22, s. 10 
 c. 45, s. 11 
 c. 70 
 
 40 & 41 Vict. c. 34 [Locke King's 
 
 Act Amendment Act, 1877]. 1574, 
 1643 
 
 42 & 43 Vict. c. 59, s. 3 . . .61 
 
 43 Vict. c. 14 [Customs and Inland 
 
 Revenue Act, 1880] 
 s. 9 508 
 
 . 508, 527, 841 
 
 509, 1417, 1436, 1469 
 
 . 510, 1410 
 
 . 510, 1405 
 
 s. 10 . 
 s. 11 . 
 s. 12 . 
 s. 13 . 
 
 43 & 44 Vict. c. 8 
 
 c. 42 [Employer 
 1880], 
 
 44 Vict. c. 12 [Customs and Inland 
 
 Itevenue A 
 s. 26 . 
 
 ■5' Liahilitji Act, 
 
 s. 27 
 s. 28 
 s. 29 
 ,s. 30 
 s. 31 
 s. 32 
 .s. 33 
 s, 34 
 s. 35 
 s. 36 
 s. 37 
 s. 38 
 s. 39 
 s. 40 
 s. 41 
 s. 42 
 s. 43 
 
 44 & 45 Vict. c. 41 [Conveyancing and 
 
 Law of Py 
 s. 3 (2) 
 s. 4 
 s. 6 
 .s. 14 
 .s. 30 
 .s. 37 
 K. 38 
 .s. 43 
 s. 50 
 
 1714 
 
 ro7 
 
 t, 1881] 
 
 . 510, 525, 538 
 . 511, 527 
 . 513, 836 
 . 514, 527 
 . 514, 538 
 . 514, 528 
 . 515, 529 
 . 516, 1406 
 . 517 
 , 518 
 . 518, 1405 
 . 518 
 518, 691, 1442, 1444 
 . 520 
 227, 26.5, 520, 529, 530 
 521, 1407, 1453 
 . 521, 1405 
 521, 1417, 1436 
 
 ■opcrty Act, 1881] 
 
 . 1266 
 
 1645, 1646 
 
 . 650 
 
 . 811 
 
 . 602, 1542, 1645 
 
 . 815, 1694, 1695 
 
 . 826 
 
 . 1265 
 
 . 1725 
 
 TAGE 
 
 45 & 46 Vict. c. 38 [Settled Land 
 
 Act, 1882] 
 
 s. 34 1251 
 
 s. 58 1631 
 
 c. Ql[Bills of Exchange Act, 1882] 
 s. 16(1) .... 1671 
 
 s. 26(1) 1671 
 
 s. 31 (4) . . . . 687 
 s. 31 (5) ... 812, 1671 
 s. 41 (1— c) .... 812 
 s. 41 (2— ft.) .... 812 
 
 s. 45(5) 1875 
 
 s. 45(7) . . . 813, 1874 
 s. 46(1) . . . 813, 1798 
 s. 49 (9) . . . . 1874 
 s. 61 1875 
 
 c. 75 [Married IFom.cn's Property 
 
 Act, 1882] 
 
 s. 1 (subs. 1; , 47, 56, 605, 606, 
 
 662, 736, 920 
 
 (subs. 2). 185, 793, 833, 1741 
 
 s. 2 . 56, 605, 662, 736, 1175 
 
 s. 4 56, 1551 
 
 s. 5 . . .56, 57, 607, 662, 736, 
 1175, 1277 
 
 s. 6 1742 
 
 s. 13 . . . 1652, 1655 
 
 s. 14 . . . . I6.5.3, 1655 
 s. 18 . . 186, 833, 1741, 1831 
 s. 19 . . 607, 663, 737, 1652 
 
 s. 22 607 
 
 s. 23 . . . . 57, 1742 
 s. 24 . . 185, 793, 833, 1741 
 
 46 & 47 Vict. c. 47, s. 8 . . . S98 
 
 c. 52 [Bankruptcy Act, 1883] 
 
 s. 4 (subs. 1) . . .1797 
 
 s. 10 1899 
 
 s. 30 1939 
 
 s. 40 858 
 
 s. 44 . . . 559, 560, 898 
 
 s. 47 . . . . 665, 696 
 
 s. 50 (5) . . . . 735 
 
 s. 125 .... 859, 1912 
 
 c. 57 [Patents Ad, 1883], s. 34 . 724 
 
 c. 61 [A(/rieultu7-al Holdings 
 
 Act. 1883] 
 
 s. 29 ■ 632 
 
 s. 34 655 
 
 47 & 48 Vict. c. 44 [JVaval Pensions 
 
 Act, 188^]. . . .394 
 c. 55, s. 4 . . . . 396 
 
 c. 71 [Intestates' Estates Ad, 188^1 
 
 .ss. 2, 3 372 
 
 ss. 4, 5, 6, 7, 8, 9 . . . 373 
 
 50 & 51 Vict. c. 40, s. 3 . . • 397 
 
 c. 55 [Sheriffs Act, 1887], s. 25. 1603 
 
 c. 67, s. 8 . . . . 397 
 
 c. 71 [Coroners Ad, 1887], s. 20 781 
 
 c. 73 [Co2)yhold Ad, 1887], s. 45 1543 
 
 51 & 52 Vict. c. 8 [Customs and In- 
 
 land, Itevenue Act, 1888] 
 s. 21 1406, 1440, 1442, 1453, 1487
 
 CVlll TABLE OF STATUTES, EULES AXU ORDEES CITED. 
 
 PAGE 
 
 51 & 52 Vict. c. 8 [Ciistoms and In- 
 land Revenue Act, 1888] 
 s. 22 . . . . 1461, 1516 
 c. 43 {County Courts Act, 1888] 
 
 s. 58 . 
 
 
 . 1830 
 
 s. 67 . 
 
 1830, 
 
 1831, 1906, 1954 
 
 s. 68 . 
 
 
 . 1955 
 
 s. 69 . 
 
 
 . 1906, 1955 
 
 s, 70 . 
 
 
 . 1955 
 
 s. 74 
 
 
 1906, 1956 
 
 s. 75 
 
 
 . 1957 
 
 s. 95 . 
 
 
 . 1798, 1872 
 
 s. 120 . 
 
 
 . 1958 
 
 Ft 
 
 ;. 42 {Mortmaiti and Cliuritablc 
 
 Uses Act, 1SS8] 
 II. s. 4 . . . . 904, 905 
 
 s. 5 906 
 
 Ft. III. s. 6 . . . 906, 912, 917 
 
 . 906 
 
 . 907, 921 
 
 . 907, 916 
 
 . 917 
 
 s. t 
 
 s. 11 . 
 s. 12 . 
 
 s. 13 (2) . 
 c. 59 {Trustee Act, 188S] 
 
 s. 1 (3) 1705 
 
 s. 2 1725 
 
 s. 4 1706 
 
 s. 5 1706 
 
 s. 6 1740 
 
 s. 7 1704 
 
 s. 8 . . 1843, 1844, 1928 
 
 c. 62 {Frcferential Payments in 
 Banbmptcy Act, 1SS8] . . 875 
 52 A'ict. c. 7 [Customs and lalancl 
 Revenue Act, 1889] 
 s. 5 . . 513, 515, 519, 521 
 
 s. 6 
 
 . 1446, 1477 
 
 524, 1477 (h) 
 
 524, 1477 {hj 
 
 524, 1477 (h) 
 
 1459, 1468, 1473 
 
 . 1444 
 
 1515 
 
 1515 
 
 1410, 1515 
 
 s. 8 
 &. 9 
 
 s. 10 . 
 s. 11 . 
 .s. 12 . 
 s. 13 . 
 s. 14 . 
 
 52 k 53 Vict. c. 32 {Trust Investment 
 
 Act, 1889] 
 s. 3 . . . . 1249, 1710 
 
 s. 4 1713 
 
 s. 5 1713 
 
 s. 6 1714 
 
 s. 9 1710 
 
 53 Vict. c. 5, ss. 117, 123 . . 590 
 
 c. 1 6 [ Working Classes LicclUngs 
 Act, 1890] . . . .907 
 53 & 54 Vict. c. 39 {Intestates' Estates 
 
 Act, 1890] . . . .370 
 ss. 1, 2, 3 . . . . 1359 
 ss. 4, 5, 6 . . . . 1360 
 
 c. 39 {FartnersM2J Act, 1890] 
 
 s. 9 . . . 1619, 1620 
 s. 14 (2) . . . . 1623 
 s. 18 1660 
 
 53 & 54 Vict. c. 39 {Partnership Act, 
 
 1890] 
 s. 22 . . . . 548. 588 
 s. 33 (1) . . . . 1624 
 
 s. 36(3) . . . . 1624 
 
 s. 39 1624 
 
 s. 42 1625 
 
 s. 43 1625 
 
 s. 48 1660 
 
 c. 71 {Bankru2)tcy Act, 1890] 
 
 s. 1 1797 
 
 s. 21 1912 
 
 54 & 55 Vict. c. 73 {Mortmain and 
 
 Charitahlc Uses Act, 1891] 
 s. 3 . . . . 925, 1591 
 
 s. 4 925 
 
 ss. 5, 6, 7, 8 . . . . 926 
 ss. 9, 10 . . . . 927 
 
 55 & 56 Vict. c. 11 {Mortmain and 
 
 CharitaMc Uses Ainenehnent 
 Act, 1892] . . . .906 
 c. 29, s. 10 . . . 907, 926 
 
 56 & 57 Vict. c. 53 {Trustee Act, 
 
 1893] see Add. 
 
 ORDER IN" COUNCIL {TFiUs of 
 Seamen] December 28, 1865 
 
 dSoetseq., 394 
 
 FROBATE RULES, 1862 
 {A'^ou- Contentious'] 
 
 i: 4 
 
 1'. 5 
 
 r. 6 
 
 r. 7 
 
 9, 10, 11 
 
 r. 15 
 
 r. 18 (A]. ill, IS 
 
 r. 28 
 
 rr. 29, 30 . 
 
 r. 31 
 
 r. 32 
 
 IT. 33, 34 . 
 
 rr. 35, 36 . 
 
 ir. 38, 39, 40, 41 
 
 r. 43 
 
 r. 44 
 
 r. 45 
 
 r. 50 
 
 rr. 59, 60, 61, 
 
 rr. 63, 64, 65, 66, G' 
 
 rr. 68, 69, 79 
 
 r. 71 
 
 r. 73 
 
 r. 75 
 {Contentious] 
 
 rr. 4, 5, 6 
 
 r. 41 
 
 r. 60 
 
 r. 76 
 
 r. 78 . . 
 
 82, 272 
 
 82, 272 
 
 82, 272 
 
 82, 272 
 
 . 272 
 
 53, 57, 323 
 
 53, 57, 323 
 
 . 362 
 
 . 416 
 
 . 385 
 
 . 376 
 
 . 419 
 
 . 420 
 
 . 463 
 
 . 266 
 
 . 390 
 
 266, 389 
 
 234, 407 
 
 . 496 
 
 . 496 
 
 261, 379 
 
 . 289 
 
 . 297 
 
 . 379 
 
 . 275 
 
 . 282 
 . 490 
 
 . 846 
 234, 480
 
 TABLE OF STATUTES, RULES AXD ORDERS CITED. cix 
 
 PAGE 
 
 
 
 
 TAflE 
 
 RULES OF THE SUPREME COURT, 
 
 OrcLXLI. 
 
 r. 4 
 
 . 782, 860 
 
 1883. 
 
 XLII. 
 
 r. 23 .'■ 
 
 05, 777, 779, 780, 1553, 
 
 
 
 1610 
 
 , 1619, 1797, 1869, 1870 
 
 Order II. r. 1 .... 274 
 
 
 r. 27 
 
 . 1798 
 
 III. r. 4 . 1778, 1831, 1832, 1920 
 
 XLV. 
 
 
 . 1863 
 
 VIIL r. 1 .... 1843 
 
 XLIX. 
 
 r. 5 ' 
 
 1778, 1910, 1911 
 
 XL r. 2 .... 4.^9 
 
 L. 
 
 r. 9 
 
 . 1241 
 
 XIV. .... 1832 
 
 LIL 
 
 rr. 19- 
 
 -22 . . . 1823 
 
 XV. r. 1 . ISn, 1892 
 
 LV. 
 
 r. 2 (1) to (9) . 1886 d scq. 
 
 XVI. r. 3 .... 1777 
 
 
 r. 2 (5 J 
 
 . 1820 
 
 r. 8 1778, 1S04, 1832, 1921 
 
 
 r. 3 
 
 1804, 1806, 1821, 1899, 
 
 r. 9. . 1804, 1920, 1922 
 
 
 
 1903 
 
 r. 11 479, 826, 1831, 1878 
 
 
 r. 4 
 
 1806, 1808, 1903 
 
 r. 32 1804, 1809, 1921, 1922 
 
 
 r. 5 
 
 . 1809 
 
 IT. 33—35 . . . 1921 
 
 
 r. 6 
 
 
 . 1809 
 
 r. 38 . . . . 1804 
 
 
 r. 10 
 
 
 . 1811 
 
 r. 39 . . . . 1922 
 
 
 r. lOrt 
 
 
 . 1812 
 
 r. 40 1804, 1919, 1920, 1922 
 
 
 r. 12 
 
 
 . 1899 
 
 r. 41 . . . . 1919 
 
 
 r. Von 
 
 
 1889, 1890 
 
 r, 46 . 446, 778. 1804, 1879 
 
 
 r. 15 
 
 
 . 1805 
 
 r. 48 . . . . 1831 
 
 
 r. 15« 
 
 
 , 1805 
 
 XVII. r. 1 505, 774, 783, 859, 1615, 
 
 
 ]•. 44 
 
 
 . 1822 
 
 1616, 1617, 1788, 1845 
 
 
 rr. 44- 
 
 -61 
 
 . 1693 
 
 r. 2 505, 774, 1617, 1788, 1845 
 
 
 r. 64 
 
 
 . 1241 
 
 r. 3 . . . . 505, 774 
 
 LVIII. 
 
 r. 1 
 
 
 . 1657 
 
 r. 4 438, 505, 774, 1615, 1617, 
 
 
 r. 3 
 
 
 . 490 
 
 1788, 1845 
 
 
 r. 15 
 
 
 . 490 
 
 r. 5 . . . 505, 775 
 
 LIX. 
 
 r. 1 
 
 
 1932, 1934 
 
 rr. 6, 7 . . . . 775 
 
 
 r. 4 
 
 
 . 248 
 
 r. 8 . . . 776, 778 
 
 
 rr. 10- 
 
 -17 
 
 . 1958 
 
 rr. 9, 10 . . . . 776 
 
 LXL 
 
 r. 31 
 
 
 . 1887 
 
 XVIIL r. 5 767, 1778, 1782, 1833 
 
 LXV 
 
 r. 1 
 
 282, 310, 1796, 1813, 
 
 XIX. r. 3 . . . 1780, 1846 
 
 
 
 1862, 1937, 1944 
 
 r. 4 ... 1851, 1858 
 
 LXV. 
 
 r. 6 
 
 . 314 
 
 r. 6 .... 1892 
 
 
 
 
 r. 13 . . . 1855, 1836 
 
 
 
 
 XXL r. 5 . . . 1792, 1920 
 
 SUPREME COURT FUND RULES, 
 
 r. 18 . . . 281, 314 
 
 
 
 1886. 
 
 r. 20 . . . . 1777 
 
 
 
 
 XXII. r. 17 . . . . 1713 
 
 
 r. 41 
 
 . 1819 
 
 XXIII. r. 2 .... 1772 
 
 
 r. 73 
 
 . 1263 
 
 r. 8 .... 1771 
 
 
 r. 76 
 
 . 1286 
 
 XXIV 1850 
 
 
 r. 99 
 
 . 1263 
 
 XXV. r. 2 1835 
 
 
 
 
 r. 5 .... 1824 
 
 
 
 
 XXXI. r. 14 . . . . 1887 
 
 COUNTY COURT RULES, 1889. 
 
 XXXIII. r. 8 .... 1814 
 
 
 
 
 XXXIV. r. 8 .... 1824 
 
 Order VI. 
 
 r. 6 
 
 . 1957 
 
 rr. 9—12 . . .1825 
 
 XXII. 
 
 r. 11 
 
 . 1958 
 
 XXXVII. r. 4 . . 1793, 1794 
 
 
 r. 12 
 
 . 1958 
 
 XLI. r. 3 ... 779, 860 
 
 XLIX. 
 
 r. 12 
 
 
 . 247
 
 ADDENDA AND CORRIGENDA. 
 
 54, 11. (/).— The will of a married woman \y1io dies in tlie lifetime of her husband 
 made during coverture and prior to the jMarried Women's Property- 
 Act, 1882, she having at the time capacity to make a will, is effectual 
 without re-execi;tiou'to pass separate property which she may acquire 
 under the provisions of the Act. Re Boium, (1892) 2 Ch. 2&1. 
 
 C7, n. (zO-— The whole of a disposing portion of a will was WTitten on the first 
 side of a sheet of foolscap, the second and third sides being blank ; and 
 the attestation clause with the signature of the testator and the witnesses 
 being on the fourth side. It was held that the will was duly executed. 
 In the goods of Fuller, (1892) R 377. 
 
 79^ n. (y).— See also JFyatt v. Berry, (1893) P. 5. 
 
 87, n. (c). — See also In the goods of Marchanf, (1893) P. 254. In that case a 
 testatrix left two testamentary documents of which only one was duly 
 executed. The first or unexecuted document made various specific 
 bequests and appointed an executor. The second, which was duly 
 executed, bequeathed all the property of the testatrix to her nephew 
 " for the purposes I require him to do absolutely." It was held that 
 the two documents could not be admitted to probate as together con- 
 stituting the will of the deceased, but that probate might be gi-anted 
 of the second or executed document tcilh directions to tJie 'executor to 
 o.dministcr tlie estate in conformity with the trusts of the first dociLmcnt. 
 
 114, n. (HO-— See In the goods of Heath, (1892) P. 253, in which a reference in a 
 codicil showed that an interlineation had been made prior to the execu- 
 tion of the codicil, and was therefore incorporated by it. 
 
 191 n. (^;). — Where a testatrix appointed A. and B. " trustees" of her will and 
 expressed her wish that they should pay her funeral and other debts, it 
 was held that they were constituted executors according to the tenor. 
 In the goods of Wilkinson, (1892) P. 227. See also In the goods of 
 FMssell, ibid. 380. 
 
 248, n. (c). — See also Copeland v. Simis ter, (1893) P. 16. 
 
 282 n. (y). — A party giving notice under this rule cannot be condemned in costs, 
 the power of the Court only existing where the party who gives the 
 notice has taken proceedings to call in the probate. Leigh v. Green, 
 (1892) P. 17 : Bccde v. Beale (L. R. 3 P. & D. 179) distinguL^hcd. 
 
 293, n. (?). — A testatrix left two wills and a codicil to the first will. The second 
 will, which disposed only of a small policy of insurance on her life, was 
 prepared for her on a printed form by one of her executors. The form 
 commenced with a clause revoking all previous testamentary disposi- 
 tions ; but, when this was read over to her, she objected to it, saying 
 that she did not wish to revoke her first will and codicil. The person 
 who prepared the will assured her that, as it only related to the insurance 
 policy, the words of revocation would not apjdy to her former testa- 
 mentary dispositions, and that to make an erasure might invalidate the 
 will. Being satisfied by this assurance, the testatrix duly executed the 
 will. It was held, on the authority of Morrcll v. Morrcll, that the 
 testatrix must be taken to have known and approved of these words of 
 revocation, and that they must be included in the probate of the last 
 will. Collins V. Elstonc, (1893) P. 1.
 
 ADDENDA AND CORRIGENDA. Cxi 
 
 PAGE 
 
 293, 11. {l).—A testatrix executed a will in 1887, and a subsequent will in 1889, 
 by which she revoked all previous wills. In 1891 she executed a codicil 
 which hij mistake was described as a codicil to the will of 1887. It was 
 held that probate might be granted of the codicil together with the will 
 (ji 1%^% with the reference to the will of l^d>7 omitted. In the qoocls of 
 Gordon, (1892) P. 228. See also In the goods of Moore, (1892) P. 378. 
 
 312, n. [d).—Roc v. Nix, (1893) P. 55. 
 
 315, n. (a-).— See also Collins v. Elstonc (1893), P. 1, in which Morrcll v. Morrell 
 was followed, and the cases of Guardhouse v. Blacktnirn, Alter v. 
 Atkinson, and Fulton v. Andrew were referred to. See also In the 
 goods ofMom-e, (1892) P. 378. 
 
 332, n. [m). — Grant of administration to a Peceiver appointed l)y the Chancery 
 Division. In the goods of Moore, (1892) P. 145. 
 
 384, n. {s). — AVhere an executor before the death of the testator left the country 
 under an assumed name, having sold all his effects, and there was 
 reason to believe that he did not intend to return, the Court, under 
 section 73, granted administration with the will annexed to the testator's 
 widow, who was sole beneficiary, without requiring the executor to be 
 cited. In the goods of Craivshay, (1893) P. Iu8. 
 
 384, 11. (s). — Grant made to a creditor, the sole executrix and universal legatee of 
 
 the testator (his widow) being a lunatic. In the goods of Atlicrton, 
 (1892) P. 104. 
 
 385, u. (s)-^Grant to Clerk of the Guardians of the Poor. In tlic goods of Everlcy, 
 
 (1892) P. 50. 
 
 Joint g\a,-a\. to next-of-kin and another 2)crson entitled in distribution. 
 In the goods of JFalsh, (1892) P. 230. 
 
 402, n. (r?).— See In the goods of Alston, (1892) P. 142. 
 
 403. — Grant of administration with the will annexed to a stranger, there being 
 no known relatives of the testator and no residuary legatee appointed, 
 In the goods of Jackson, (1892) P. 257. 
 
 404, n. (f^).— Where a sole executrix and legatee had not been heard of for forty 
 years, the Court granted administration with the will annexed to the 
 representative of the next-of-kin of the testatrix on proof that the 
 executrix had been cited by advertisement, subject to administration to 
 the next-of-kin being taken out. In the goods of ley, (1892) P. 6. 
 
 441, u. (c).— See also In the goods of Wright, (1893) P. 21. 
 
 456, n. (A). — As to breach of condition to well and truly administer under s. 81, 
 see Dohhs v. Brain, (1892) 2 Q. B. 207. 
 
 463, n. (t').— In the case of In the goods of Dc Beaufort, (1893) P. 231, an 
 administratrix on application for administration with will annexed was 
 allowed to give an administration bond with two foreign sureties where 
 the testator, being a French subject residenti in France, made a will 
 constituting a domiciled French subject his universal and residuary 
 legatee. 
 
 482, n. (I).— Re Cliff's Trusts is further reported in (1892) 2 Ch. 229. In this 
 case the report of L'Fit v. L'Batt is corrected. 
 
 511. — The incidence of the now duties imposed by s. 27 of this Act, and by s. 5 
 of the Customs and Inland Revenue Act, 1889 (see 2Mst, p. 521), is 
 governed liy the same principle as that which regulated tlie incidence of 
 the old probate duty — viz. that it .should bo ])orne by the general 
 residuary estate. Re Bourne, (1893) 1 Ch. 188 ; Re Croft, (1892) 1 Ch. 
 652, distinguished. 
 
 615, Uric 22. — " Person acting in the admini.stration of the estate." 
 
 A testator bequeathed certain pictures and other property to be held
 
 CXU ADDENDA AND CORRIGENDA. 
 
 PAGE 
 
 liy trustees as heirlooms. His executors caused a valuation to he made 
 lor probate ])urposes, aud delivered to the Couimissioners of Inland 
 Revenue an aliidavit of value witli an aceount on the basis of such valua- 
 tion duly stanijied in accordance with the provisions of the Customs and 
 Inland Kevcnue Act, ISSl. Upon this a certificate was issued, stating 
 the value as shown by the account, and 7)robate was granted. Some 
 time after the executors had finally Avound up the estate, it was dis- 
 covered that one picture had been omitted from the valuation, and that 
 the others had been considerably undervalued. No suggestion was made 
 of any negligence on the ]iart of the executors or of any incompetence on 
 the ]iart of the valuer. On an information, praying that the executors 
 might lie ordered to deliver a further affidavit aud account in accordance 
 with the provisions of s. 32, it was held bv the Court of Appeal, affirming 
 the decision of the Divisional Court, "(1892) 2 Q. B. 289, that the 
 executors, having coni]defed the duties of administration, were 7iot 
 '• -[lersons acting in the administration of the estate " within the meaning 
 of the section, and were not liable. Att.-Gcn. v. Smith, (1892) 2 Q. B. 
 289, affirmed, (1893) 1 Q. B. 239. 
 
 582, n. (2/).— See also Be Clowes, (1893) 1 Ch. 214. 
 
 588, u. (a).— See He Wilson, (1893) 2 Ch. 340, in which case the principle 
 regulating the devolution of land held for a iiaitnership or other common 
 object is discussed. 
 
 Ce3, n. (c).— In Slercns v. Trcvor-Gan-icJc, (1893) 2 Ch. 307, it was held that the 
 reasons given in Hancock v. JIancocJr, as to the effect of s. 19 on the 
 operation of s. 5 of the Act, were equally applicable to modify the opera- 
 tion of s. 2. 
 
 784.— Section 26 of 22 & 23 Yict., c. 35 is repealed by the Trustee Act, 1803 (5G 
 k 57 Vict., c 53), and is re-enacted by s. 23 of that Act. 
 
 802, u. (/i).— See TJiorne v. Thome, (1893) 3 Ch. 196. 
 
 815. — Section 37 of the Conveyancing and Law of Property Act, 1881, is repealed 
 by the Trustee Act. 1893 (56 k 57 Vict., c. 53), aud is re-enacted by s. 21 
 of that Act. 
 
 826. — Section 38 of the Conveyancing and Law of Property Act, 1881, is repealed 
 by the Trustee Act, 1893 (56 &: 57 Vict., c. 53), and is re-enacted by s. 22 
 of that Act. 
 
 923, n. {o).- — A berptest to a religious institution or for a religious purpose is 
 jjrimd fncie a bequest for a " charitable" jiurpose, and the law applic- 
 able to "charitable " bequests as distingttished from the law applicable 
 to ordinary bequests ought to be applied to a bequest to a religious 
 institution or for a religious purpose. Re White, (1893) 2 Ch. 41. 
 
 963, n. (;)).— See the late case oi In the goods of Ashton, (1892) P. 83, in which 
 the cases mentioned in this note are referred to and discussed. 
 
 1086, n. (r). — The rule that s. 33 of the "Wills Act does not apply to children or 
 grandchildren of the testator as a class is not affected by the fact that, 
 in the events which happened, the class consisted of but one individual. 
 Me Harvey's Estate, (1893) 1 Ch. 567. 
 
 1193, n. (s).— See also Ee Clowes, (1893) 1 Ch. 214. 
 
 1228, n. (i). — The mere fact, however, that an executor has made general pay- 
 ments to or for the benefit of a legatee of leaseholds and other property— 
 not specially out of or on account of the rents — is not, in the absence of 
 representations on the subject by the executor to the legatee, sufficient 
 to enable the Court to infer that the legacy has been assented to. 2'htrnc 
 V. Thome, (1893) 3 Ch. 196. 
 
 1249, n. ('/«).— Section 3 of the Trust Investment Act, 1889, is repealed by the 
 Trustee Act, 1893 (56 k 57 Vict., c. 53), and is re-enacted by s. 1 of 
 
 that Act. •
 
 ADDENDA AND CORRIGENDA. cxiil 
 
 1251, n. (o). — See also lie Ecngler, (1893) 1 Cli. 586, in which the principle of 
 Re ChcstcrfickVs Trusts and Bcavan v. Bcavan is applied. 
 
 12G3.— Section 32 of 36 Geo. III., c. 52, is repealed by the Trustee Act, 1893 
 (56 & 57 Vict., c. 53). Provisions for the payment into Court by 
 trustees are contained in s. 42 of the latter Act. 
 
 1266, n. (r). — For a case in which a " contrary intention" was expressed, see Ro 
 Humphreys, (1893) 3 Ch. 1. In this case Re Wells was approved. 
 
 1322, n. (A).— See Re Dames, (1892) 3 Ch. 63. 
 
 1392, n. {])). — The domicil of a person is that place or country in which his 
 habitation is fixed without any present intention of removing therefrom. 
 Re Craujiiish, (1892) 3 Ch. 180. 
 
 1396, n. (/).— Where the domicil of birth is changed during infancy by a change 
 of domicil of the father, semhle, the altered domicil cannot be regarded 
 as the infant's domicil of origin. Re Craignish, (1892) 3 Ch. 180. 
 
 1600, n. (^•). — Proceedings by a road authority under s. 23 of the Highways and 
 Locomotives (Amendment) Act, 1878, are in the nature of an action for 
 a personal tort, so that proceedings cannot be taken against the 
 executor of a person by whose orders the extraordinary traffic was 
 conducted. Story v. Sheard, (1892) 2 Q. B. 515. 
 
 1628, n. (p). — An executor is not entitled on behalf of the estate to take shares 
 in a building society or to make the estate liable for him as a share- 
 holder therein. Per Romer, J. Thorncw. Thome, (1893) 3 Ch. 196, 203. 
 
 1652, n. {r).—Re Parkin, (1892) 3 Ch. 510, 520, 
 
 1695. — Section 37 of the Conveyancing and Law of Property Act, 1881, is 
 repealed by the Trustee Act, 1893 (56 & 57 Vict., c. 53), and is re- 
 enacted by s. 21 of that Act. 
 
 1704, n. [x). — Section 7 of the Trustee Act, 1888, is repealed by the Trustee Act, 
 1893 (56 & 57 Vict., c. 53), and is re-enacted by section 18 of that Act 
 with the addition of a sub-section (3), declaring that the section 
 applies to trusts created before or after 1st January, 1894, but that 
 nothing " in this section shall authorise way trustee to do anything 
 which he is in express terms forbidden to do, or to omit to do anything 
 which he is in express terms directed to do by the instrument creating the 
 trust." 
 
 1706, n, («).— The Trustee Act, 1893 (56 & 57 Vict., c. 53), repeals the Trustee 
 Act, 1888, except as to ss. 1 and 8. Sections 4 and 5 of the Trustee Act, 
 1888, are re-enacted verbatim by ss. 8 and 9 of the Act of 1893. 
 
 1710 — 1714. — The Trust Investment Act, 1889, is repealed (with the exception 
 of sections 1 and 7) by the Trustee Act, 1893 (56 & 57 Vict., c. 53). 
 The sections set out in these pages are re-enacted by sections 1 to 4 
 inclusive, with merely the following additions, viz., in section 1 (j), 
 power is given to invest in " deferred anmtities comprised in the register 
 of holders of annuity Class D., and annuities comprised in the register of 
 annuitants Class C. of the East Indian Railway Company," and in 
 section 1 {k), power is given to invest in railway stock in India " upoji 
 the capital of which the interest is guaranteed by the Secretary of 
 State in Council of Indict.''^ 
 
 1714. — The provisions relating to investments authorised apart from the Trust 
 Investment Act, 1889, here referred to, are repealed by the Trustee 
 Act, 1893, and are re-enacted by s. 5 of that Act. That section, in 
 addition to such enactments, provides that a trustee having power to 
 invest in real securities, unless expressly forbidden by the instrument 
 creating the trust, may invest, and shall be deemed to have always had 
 the power to invest " o?i vtortgage of property held for an unexpired 
 term of not less than 200 years, and not subject to a reservation of rent 
 
 W.E. — VOL. I. h
 
 CXIV ADDENDA AND CORRIGENDA. 
 
 PAc.r, 
 
 greater than a tshilliny a year, or to any rigJit of redemption or to any 
 condition far re-entry cxce'ptfor non-payment of rent. " The Trustee Act, 
 1893, s. 6, gives a trustee power to invest in the purchase or on mort- 
 gage of any land, notwithstanding drainage charges, unless the terms of 
 the trust expressly provide that the land to be purchased or taken in 
 mortgage shall not be subject to any such prior charge. 
 
 , Bv s. 7, trustees, unless autliorised by the terms of their trust, are 
 forbidden to apply for or hold certifieates to bearer, issued under the 
 authoritv of the India Stock Certificate Act, 1863, the National Debt 
 Act, 1870, the Local Loans Act, 1875, or the Colonial Stock Act, 1877. 
 
 1725.— Section 2 of the Trustee Act, 1888, is repealed by the Trustee Act, 1893 
 (56 & 57 Vict., c. 53), and is re-enacted by s. 17 of that Act, with the 
 addition of a sub-section (5), which provides that ^'nothing in this 
 section afiall authorize a trustee to do anything which he is in express 
 terms forbidden to do or to omit anything which he is in exjjress terms 
 directed to do, by the instrument creating the trust.'''' 
 
 1735.— Section 31 of Lord St. Leonard's Act (22 & 23 Vict., c. 35) is repealed by 
 the Trustee Act, 1893 (56 & 57 Vict., c. 53), and is re-enacted by s.' 24 of 
 that Act. 
 
 1740.— Section 6 of the Trustee Act, 1888, is repealed by the Trustee Act, 1893 
 (56 & 57 Vict, c. 53), and is re-enacted by s. 45 of that Act. 
 
 1817, 1820.— The Trustee Act, 1850, is repealed by the Trustee Act, 1893 (56 k, 
 57 Vict., c. 53), except in so far as relates to the Court exercising juris- 
 diction in Lunacy in Ireland. The effect of the sections of the new Act 
 which take the place of the sections in the repealed Act is given in the 
 table hereafter set out. 
 
 1823.— Section 30 of Lord St. Leonard's Act (22 & 23 Vict., c. 35) is repealed by 
 the Trustee Act, 1893 (56 & 57 A^ict., c. 53). 
 
 1879.— V'hen an order is made under Ord. XVI. r. 46, R. S. C. 1883, it should 
 appear on the face of the order to render it binding on the estate of a 
 deceased person either that the Court having had its attention drawn to 
 this point has dispensed with the legal personal representative of the 
 deceased jaerson interested in the matter or has appointed some person to 
 represent the estate. Re Pdchcrson, (1893) 3 Ch. 146. 
 
 1887, 1888.— The Trustee Acts, 1850 and 1852, are repealed and practically re- 
 enacted by the Trustee Act, 1893 (56 k 57 Vict., c. 53). The table 
 hereafter set out shows the provisions of the new Act which take the 
 place of those in the repealed Acts. 
 
 1928, line 18. — The exception contained in this sub-section was held not to apply, 
 in the absence of fraud, where trust funds advanced on mortgage were 
 with the concurrence of the mortgagor applied in payment of a debt 
 previously charged on the mortgaged property in favour of a bank in 
 which the trustee was a partner. Mc Gurney, (1893) 1 Ch. 590. 
 
 1928, n. {oo).—Ee Page, (1893) 1 Ch. 304. 
 
 1938, n. (y).— Charles v. Jones, explained in JRe Beddoe, (1893) 1 Ch. 547. 
 
 1941, n. {u).—See Re Beddoe, (1893) 1 Ch. 547, 555.
 
 TRUSTEE ACT, 1893. CXV 
 
 TRUSTEE ACT, 1893. 
 
 This Act, described as "an Act to consolidate Enactments relating to Trustees," 
 repeals the various sections of Statutes naentioned in the Schedule, and re-enactt; 
 the repealed provisions. 
 
 The following table shows the various sections of the Trustee Act which 
 correspond with the repealed sections : — 
 Sect. 1. Autliorised Investvients .... 52 & 53 Vict., c. 32, s. 3. 
 
 ,, 2. Purchase at a premium of redeemable stocks . ■ s. 4. 
 
 ,, 3. Discretion of trustees ..... s. 5. 
 
 ,, 4. Ap2)liccction of Act ..... s. 6. 
 
 ,, 5. Enlargement of express x>oivers of investment 34 & 35 Vict., c. 27; 28 
 
 &29Vict.,c.78, .s. 40; 
 43&44 Vict.,c. 8,s. 7; 
 27 & 28 Vict, c. 114, 
 s. 60 ; 38 & 39 Vict., 
 c. 83, s. 27. 
 . ,, 6. Poiixr to invest notwithstanding drainacjc 
 
 charges 10 & 11 Vict., c. 32, s. 53. 
 
 ,, 7. Trustees not to convert inscribed stock into 
 
 certificates to hearer 26 & 27 Vict., c. 73, s. 4 ; 
 
 33 & 34 Vict., c. 71,' 
 s. 29 ; 38 & 39 Vict., 
 c. 83, s. 21 ; 40 & 41 
 Vict., c. .'9, s. 12. 
 
 8. Loans and investments hij trustees not charge- 
 able as breaches of trust . . . . 51 & 52 Vict., c. 59, s. 4. 
 
 9. Liability for loss by reason of im2}roper in- 
 vestments ..... 
 
 10. Foioer of appointing new trustees 
 
 11. Retirement of trustee .... 
 
 12. Vesting of trust property in nexo or continuing 
 
 trustees ...... 
 
 13. Power of trustee to sell by a^tction 
 
 14. Power to sell subject to depreciatory con- 
 
 ditions ....... 
 
 15. Poiver to sell under Stat. 37 & 38 Vict., c. 78 
 
 16. 3Iarried woman as bare trustee may convey 
 
 17. Power to authorise receijjt of money by 
 
 banker or solicitor ..... 
 
 18. Power to insure building .... 
 
 19. Power (f trustees of renewable leaseholds to 
 
 renew and raise money for the interpose . ss. 10, 11. 
 
 20. Power of trustees to give receipts . . . 44 & 45 Vict., c. 41, s. 36. 
 
 21. Power of executors and trustees to comimund, 
 
 ci-c s. 37. 
 
 22. Powers of tioo or more trustees . . . s. 38. 
 
 23. Exoneration of trustees in resixct of certain 
 
 piowers of attorney 22 & 23 Vict., c. 35, s. 26. 
 
 24. Implied indemnity of trustees . . . s. 31. 
 
 51 & 52 Vict., c 
 
 59, 
 
 s. 5. 
 
 44 & 45 Vict 
 s. 31 ; 45 & 
 c. 39, s. 5; 
 Vict., c. 13, £ 
 
 46 
 55 
 . 6. 
 
 ■ 41, 
 7ict., 
 & 56 
 
 44 & 45 Vict, c. 
 
 41, 
 
 s. 32. 
 
 s. 34. 
 
 
 
 s. 35. 
 
 
 
 51 & 52 Vict, ( 
 
 :. 59 
 
 , s. 3. 
 
 37 & 38 Vict, c 
 
 78 
 
 s. 3. 
 
 s. 6. 
 
 
 
 51 & 52 Vict, c. 
 
 59, 
 
 s. 2. 
 
 s. 7. 
 

 
 CXvi TRUSTEE ACT, 1893. 
 
 Sect. 25. Power of the Court to appoint ncio trustees , 13 & 14 Vict., c. 60, s. 32 ; 
 
 15 k, 16 Vict., c. 55, 
 ss. 8, 9; 46 & 47 Vict., 
 c. 52, s. 147. 
 
 ,, 26. Vesting orders as to land . 
 
 27. Orders as to contiagcat riglits of unborn 
 
 persoiis ....... 
 
 28. Vesting order in place of conveyance by 
 
 infant mortgagee 
 
 29. Vesting order injilace of conveyance by heir 
 
 or devisee of heir, d-c, or personal represen- 
 tative of mortgagee ..... 
 
 30. Vesting order consequential on judgme?it for 
 
 sale or mortgage of land .... 
 
 31. Vesting order consequential on judgment for 
 
 specific performance, d-c. .... 
 
 32. Effect of vesting order . . . • 
 
 33. Power to ai)2)oint p)er son to convey 
 
 34. Effect of vesting order as to co2njhold . 
 
 35. Vesting orders as to stock and choses in action 
 
 36. Persons entitled to appilyfor orders 
 
 37. Powers of new trustee ajipointcd by the Court 44 & 45 Vict., c. 41, s. 33. 
 
 38. Power to cJmrge costs on trust estate . . 13 &; 14 Vict., c. 60, s. 51. 
 
 39. Trustees of charities ..... s. 45. 
 
 40. Orders made upon certain allegations to be 
 
 conclusive evidence ..... 53 & 54 A'ict.,c. 5, s. 140. 
 
 41. Application of vesting order to land out of 
 
 Englcmd 13 & 14 Vict., c. 60, s. 54. 
 
 42. Payment into Court by trustees . . . 10 & 11 Vict., c. 96, s. 1 ; 
 
 12 & 13 Vict., c. 74. 
 
 43. Power to give judgment in absence of trustee 13 & 14 Vict., c. 60, s. 49. 
 
 44. Power to sanction sale of land or minerals 
 
 separately . . " . . . . 25 & 26 Vict., c. 108, s. 2. 
 
 45. Poioer to make beneficiary indemnity for 
 
 breach of trust 51 & 52 Vict., c. 59, s. 6. 
 
 46. Jurisdiction of Palatine and County Courts 17 & 18 Vict., c. 82, s. 11 ; 
 
 52&53 Vict.,c.47,s.8. 
 
 47. Application to trustees under Settled Land 
 
 Acts of provisions as to cqipointment of 
 trustees . 
 
 13 & 14 Vict., c. 60, 
 to 16 inclusive ; 
 16 Vict., c. 55, s. 
 
 ss. 7 
 15 & 
 2. 
 
 13 & 14 Vict., c 
 
 60, s 
 
 16. 
 
 s. 8. 
 
 
 
 s. 19. 
 
 
 
 s. 29. 
 
 
 
 s. 30. 
 
 
 
 ss. 33, 34. 
 
 
 
 s. 20. 
 
 
 
 s. 28. 
 
 
 
 ss. 22, 23, 24,25, 31, 
 35; 15 & 16 Vict., c. 55, 
 ss. 3, 4, 5, 6 ; 18 & 19 
 Vict., c. 91, s. 10. 
 
 13 & 14 Vict., c. 
 
 60, s 
 
 37. 
 
 48. Trtist estates not 
 a convict 
 
 affected by trustee becoming 
 
 ,, 49. Indemnity 
 ., 50. Definitions 
 51 — 54. Eepeal, extent of Act, short title and com- 
 mencement 
 
 53 & 54 Vict., c. 69, s. 17. 
 
 13 & 14 Vict, c. 60, ss. 
 
 46, 47. 
 15 & 16 Vict., c. 55, s. 7.
 
 PART THE FIRST. 
 
 OF THE APPOINTMENT OF EXECUTORS AND 
 ADMINISTRATORS. 
 
 BOOK THE FIKST. 
 
 OF THE ORIGIN OF WILLS OF PERSONAL ESTATE : AND OF 
 THEIR NATURE AND INCIDENTS. 
 
 CHAPTER THE FIRST. 
 
 OF THE ORIGIN OF WILLS OF PERSONAL ESTATE. 
 
 Although from the time of the Norman Conquest, until 
 the passhig of the Statute of Wills (32 & 34 H. VHI.), a 
 subject of this realm had, generally speaking, no Testamen- 
 tary power over Land ; yet the power of making a Will of 
 Personal Property appears to have existed and continued 
 from the earliest period of our Law. And, under the 
 description of personal property so disposable, are not only 
 to be considered goods and chattels, but also terms for years 
 and chattel interests in Land, which, on account of their 
 original imbecility and insignificance, were deemed personalty, 
 and as such were disposable by Will (a). 
 
 But this power, it seems, did not extend to the whole of At common 
 a man's personal estate, unless he died without either wife ^.q^ij n|ft"be- 
 or issue ; for by the common law, as it stood, according to ^^^^^^^ ^''<' 
 
 " whole of his 
 
 Glanvil, in the reign of Hen. H., a man's goods were to be personal es- 
 divided into three equal parts; one of which went to his ircdieawltL- 
 
 (a) Co. Lit. Ill, &. n, (1), by Hargrave. 
 W.E. — VOL. 1. B
 
 2 Origin of Wills of Personal ProjMirti/. [Pt. i. Bk. i. 
 
 out eitlier wifo heirs, or lineal descendants, another to his Avife, and the 
 
 01- children •' , . , 
 
 third was at his own disposal : or if he died without a wife, 
 he might then disjwse of one moiety, and the other went to 
 his children : and so, e converso, if he had no children, the 
 wife was entitled to one moiety, and he might bequeath the 
 other ; but if he died without either wife or issue, the whole 
 was at his own disposal (6). The shares of the wife and 
 children were called their reasonable parts : and the writ 
 de rationahili parte honorum was given to recover them (c). 
 writ de raiio- This Writ lay for the wife against the executors of her 
 lo7wrum: husbaud, and was founded on a complaint that the said 
 executors unjustly detained from the plaintiff her reasonable 
 part of the goods and chattels which were of the deceased, 
 and refused to render the same to her (d). And the sons and 
 daughters were entitled to the like writ against the executors 
 in case their third part was withheld (e). 
 controversy It must indeed be remarked, that there has been a con- 
 
 "\v)ictli6r tliis 
 
 was the geue- troversy whether this was the general law of the land, or 
 obtarnli'i-V"'^ ^^^y ^^^^^ ^^ obtained in particular places by custom (/) ; 
 particular the law, however, whether general or prevailing in particular 
 
 places Ly 
 
 custom. places only by custom, was altered by imperceptible degrees, 
 
 AlterHtion of aud b}' a succession of statutes the old common law was 
 
 tbe law : 
 
 utterly abolished throughout all the kingdom of England, so 
 that a man might devise the whole of his chattels as freely 
 as he formerly could his third part or moiety. 
 The Wills Act, And iiow by stat. 1 Tict. c. 20, (which, however, does not 
 
 Vict c 26 
 
 extend to any Will made before Jan. 1, 1838,) it is enacted 
 that it shall be lawful for every person to devise, bequeath 
 or dispose of, by his AYill executed as required by that 
 Act, all real estate and all personal estate which he shall be 
 
 (6) 2 Bl. Coram. 492. might join in the writ : Co. Lit. 
 
 (c) F. N. B. 122, L. 9th edit. ; 17(3 b. n. (3), by Hargrave. 
 
 2 Saund. 66, n. (9). (/) As to this controversy and 
 
 (d) F. N. B. ubi tupra. the gradual alteration of Law, see 
 
 (e) The word " pueri," was usetl the former Editions of this Work 
 in the writ, but was taken as and the authorities therein col- 
 meaning children of both sexes, it lected. Pt. i., Bk. i., Ch. i. 
 licing held that pons and dan ,c;h tens
 
 Ch. I.] Origin of Wills of Personal Property, 
 
 entitled to, either at law or in equity, at the time of his 
 death {g). 
 
 (g) See this enactment (s. 3), 
 verbatim. Preface. The Interpre- 
 tation Clause (s. 1 ), enacts that the 
 words " personal estate " shall ex- 
 tend to leasehold estates and other 
 chattels real, and also to monies, 
 shares of Government and other 
 funds, securities for money (not 
 being real estates), debts, choses 
 in action, rights, credits, goods and 
 all property ■whatsoever which by 
 law devolves upon any executor or 
 administrator, and to any share or 
 
 interest therein. But the third 
 section does not intend to make 
 any kind of personalty bequeath- 
 able which was not bequeathable 
 before, but only to regulate the 
 form of executing Wills : Bishop 
 V. Curtis, 18 Q. B. 878 ; by Lord 
 Campbell, 881. Therefore a tes- 
 tator cannot bequeath a promissory 
 note made to him, so as to pass the 
 right to sue in respect of it. Such 
 right is in the executor (ib.). 
 
 B 2
 
 Of the Nature of Wills and Codicils, &c. [Pt, i. Bk. i. 
 
 CHAPTEE THE SECOND. 
 
 P- fir.ition of r 
 ^''ill and Tes- 
 Ument. 
 
 OF THE NATURE AND INCIDENTS OF WILLS AND CODICILS OF 
 PERSONAL PROPERTY. 
 
 A LAST Will and Testament is defined to be " the just 
 sentence of our will, touching what we would have done after 
 our death " (a) ; and in strictness, perhaps, the definition 
 might be narrowed by adding "respecting personal estate : '* 
 For a devise of Lands is considered by our Courts not so 
 much in the nature of a Testament, as of a conveyance by way 
 of appointment of particular lands to a particular devisee (6) : 
 And upon that principle it was established that a man could 
 devise those lands only which he had at the time of the 
 date of such conveyance, and no after purchased lands would 
 pass, whatever words might be used (c) ; whereas a Will and 
 Testament would operate upon whatever personal estate a 
 man died possessed of, whether acquired before or since the 
 execution of the instrument. And now by stat. 1 Yict. c. 26, 
 s. 3, which, however, does not apply to any Will made before 
 
 (a) Swinb. Pt. 1, s. 2 ; Godolph. 
 Pt. 1, c. 1, 8. 2 ; 2 Black. Comm. 
 499. 
 
 (h) Harwood v. Goodright, Cowp. 
 90, by Lord Mansfield. 1 Saund. 
 277, e. note (4) to Duppa v. Mayo, 
 It is said by Lord Coke, Co. Lit. 
 Ill, a. that inlaw, most commonly 
 ultima voluntas in scriptis is used, 
 ■where lands or tenements are de- 
 vised, and testamentum, when it 
 concerneth chattels. See also to 
 the same effect, Godolph. Pt. 1, 
 c. 6, s 7. 
 
 (r) 1 Saund. 277, e.n. (4). "Wind 
 
 V. Jekyl, 1 P. Wms. 575. It did 
 not turn upon the construction of 
 the statutes of Wills (32 H. VIII. 
 c. 1, & 34 H. VIII. c. 5), which 
 say that any person having land 
 may devise (as it has sometimes 
 been said, see Toller on Executors, 
 p. 2) ; for the Sfime rule held 
 before the statute, where lands 
 were devisable by custom : Har- 
 wood V. Goodright, Cowp. 90, by 
 Lord Mansfield ; Bruuker v. Cook, 
 11 ]Mod. 122 ; Brydgea v. Duchess 
 of Chandos, 2 Ves. 427 ; 1 Wms. 
 Saund. 277, e. n. [4).
 
 Cli. II.] Of the Nature of Wills and Codicils, &c. ^ 
 
 1 Jan. 1838, the power of disposing by Will executed as 
 required by that Act is extended to all such real and personal 
 property as the testator may be entitled to at the time of his 
 death notwithstanding that he may become entitled to the 
 same subsequently to the execution of his Will. 
 
 In strictness, according to the older authorities of the 
 ecclesiastical law, the appointment of an executor was essen- 
 tial to a testament. "The naming or appointment of an 
 executor," says Swinburne {d), "is said to be the foundation, 
 the substance, the head, and is indeed the true formal cause 
 of the testament, without which a Will is no proper testament, 
 and by the which only the Will is made a testament." So 
 Godolphin observes (c), that " the appointment of an executor 
 is the very foundation of the testament, whereof the nomi- 
 nation of an executor, and the justa voluntas of the testator, 
 are two main essentials." And the common law judges, in 
 Woodward v. Lord Darcy (/), laid down that "without an 
 executor a Will is null and void." However, this strictness 
 has long ceased to exist {rj), as it will appear in the subse- 
 quent chapter, respecting the form and manner of making 
 the Will {h) . And even by the old authorities above men- 
 tioned, an instrument which would have amounted to a testa- 
 ment, if an executor had been nominated, was recognised as 
 obligatory on him who had the administration of the goods of 
 the deceased, under the appellation of a Codicil : which is Codicil. 
 accordingly defined by Swinburne (i) and Godolphin (j), to tionofword. 
 be " the just sentence of our will, touching that which we 
 would have done after our death, without the aj^pointing of an 
 executor : " and hence a codicil was called " an unsolemn last 
 Will" (k). It was termed codicil, codicillus, as a diminutive 
 of a testament, codex {I). 
 
 But although it appears that " codicils " might be made by 
 
 (d) Pt. 1, s. 3, pi. 19. (i) Pt. 1, s. 5, pi. 2. 
 
 (e) Pt. 1, c. 1, s. 2. (j) Pt. 1, c. 6, s. 2. 
 
 (/) Plowfl. 185. (/c) Swinb. Pt. 1, s. 5, pi. 4. 
 
 id) Wyrall v. Hall, 2 Clianc. Godolph. Pt. 1, c. 6, s. 2. 
 
 Eep. 112. (0 Godolph. Pt. 1, ch. 6, s. 1. 
 (h) Post, Pt. I. Bk. II. Ch. II. § III.
 
 6 Of the Nature of Wills and Codicils, &c. [Ft. t. Bk. i. 
 
 Codicil. those who died without testaments {m), yet the more frequent 
 
 Modern iiitev 
 
 pretation of use 01 a codicil was, as an addition made by the testator, and 
 annexed to, and to be taken as part of a testament, being 
 for its explanation or alteration, or to make some addition to, 
 or else some subtraction from, the former disposition of the 
 testator (??) : in which sense the term codicil is applied in 
 modern acceptation. 
 
 A codicil, in this latter sense of it, is part of the Will, all 
 making but one testament (o). A strong illustration of this 
 principle may be found in the case of Sherer v. Bishop (p)^ 
 where the testator gave the residue of his personal estate 
 among such of his relations only as ivere mentioned in that 
 Ids Will: he afterwards made a codicil which he directed to 
 be taken as part of his Will ; and a second, by which he gave 
 legacies to two of his relations, but gave no such direction : 
 and it was held by Lord Commissioner Eyre (duhitantiims 
 Ashhurst, J., and Wilson, J.), that as every codicil was a 
 part of the testamentary disposition, though not part of the 
 instrument, the relations named in the second codicil were 
 entitled to a share of the residue (q). But in Fuller v. 
 
 (m) Swinb. Pt. 1, s. 5, pi. 9 ; pecuniary legacies to persons, some 
 
 Godolpli. Pt. 1, c. 6, s. 3. of whom were legatees under his 
 
 (?i) Swinb. Pt. 1, s. 5, pi. 5 ; Will, and declared that the several 
 
 Godolph. Pt. 1, c. 6, s. 1. legacies mentioned in the codicil 
 
 (o) Fuller v. Hooper, 2 Ves. Sen. were given to the therein-men- 
 
 242, by Lord Hardwicke. tioned legatees in addition to what 
 
 ( p) 4 Bro. C. C. 55. he had given to them or any of 
 
 (q) This decision has been con- them by his Will : and the V.-C. 
 sidered as carrying the principle held, that none of the legatees 
 too far : and in Hall v. Severne, 9 iinder the codicil were entitled to 
 Sim. 515, 518, Shadwell, V.-C, share in the residue in respect of 
 said he could not accede to it. In their legacies under the codicil, 
 the latter case, the testator, by his Where a testator devised property 
 Will, gave pecuniary legacies to to the children of B. in like man- 
 several persons, and directed his ner as they were entitled under 
 residue to be divided amongst his the will of B., it was held that the 
 before-mentioned legatees in pro- testator referred to the Will and 
 portion to their several legacies codicils of B., as the whole together 
 therein before given : By a codicil, must be taken to be his Will : 
 which he dii-ected to be taken as Pigott v. Wilder, 26 Beav. 90. If 
 part of his Will, he gave several a man by codicil ratifies and con-
 
 CIi. ii.J Of the Nature of Wills and Codicils, dec. 
 
 Hooper (r), where a person by Will gave legacies to all her 
 nephews and nieces, except those thereinafter named, and 
 desired her executors to look upon all memoranda in her 
 handwriting as parts of, or a codicil to, her Will ; and then 
 bequeathed the residue to the children of her sisters ; and by 
 a codicil she gave legacies to some other nephews and nieces ; 
 I/Ord Hardwicke held, that the nephews and nieces mentioned 
 in the subsequent part of the Will, and not those mentioned in 
 the codicil, were excluded from the first mentioned legacies ; 
 because the testatrix meant to refer, not to her Will or 
 Testament, which takes in all the parts, but to the particular 
 instrument {s). 
 
 firms his last Will he ratifies and 
 conlu'ms it with every codicil that 
 has been added to it, and tliis even 
 though the Will be described by 
 its date : Green v. Tribe, 9 C. D. 
 231 ; Crosbie v. Macdoual, 4 Ves. 
 619 ; In the goods of De la Saus- 
 saye, L. R. 3 P. & D. 42 ; but 
 not necessarily it" the earlier codi- 
 cil through want of attestation or 
 otherwise has no proper vigour of 
 its own, but derives its force (if at 
 all) from the later codicil : Burton 
 V. NeAvbery, 1 C. D. 234, dis- 
 approving Gordon v. Reay, 5 Sim. 
 274. In the one case the fj[uestion 
 is whether the later codicil revokes 
 au earlier operative one : in the 
 other whether the later codicil sets 
 up an earlier inoperative one. The 
 intention to revoke a bequest once 
 operative must be clear : Follett v. 
 Pettman, 23 C. D. 337, 343. 
 
 (r) 2 Ves. Sen. 242, and Sup- 
 plement by Belt, 333. 
 
 (s) So, in Early v. Benbow, 2 
 Coll. 354, the testatcjr, by liis AVill, 
 directed that the legacies " herein- 
 before by me bequeathed " should 
 be paid free of legacy duty : By a 
 codicil which he directed might 
 
 be taken as part of his Will, he 
 gave other legacies : and Knight 
 Bruce, V.-C, held tliat the legacies 
 given by the codicil were not given 
 free of legacy duty, his Honor 
 being of opinion that the word 
 " herein" was meant to refer to no 
 more than the particular instru- 
 ment in which it was contained. 
 However, several cases may be 
 found, where an additional legacy 
 given by a codicil, tliough not so 
 expressed, has been held subject to 
 the same incidents as the original 
 legacy given by the Will : See 
 Day V. Croft, 4 Beav. 561 ; War- 
 wick V. Hawkins, 5 De G. & Sm. 
 481. See also the other decisions 
 with respect to the legacy duty, 
 collected t7(/ra,Pt. ill. Bk. v. Ch. iii. 
 Where a testator executed a codicil 
 to his last Will, and by such codicil 
 absolutely revoked and made voia 
 all bequests and dispositions in the 
 Will and nominated executors, but 
 did not in direct terms revoke the 
 appointment of executors and 
 guardians in the Will, it was held 
 by Lord Penzance that the Will 
 was not revoked : In the goods of 
 Howard, L. R. 1 P. & D. 63G.
 
 A Will is dif- 
 ferent in its 
 nature from a 
 deed : 
 
 in all cases 
 revocable : 
 
 there cannot 
 be a joint 
 Will. 
 
 0/ the Nature of Wills and Codicils, &c. [Pt. i. Bk. i. 
 
 A "Will is in its nature a different thing from a deed, and 
 although the testator happen to execute it with the formalities 
 of a deed ; e.g., though he should seal it, which is no part or 
 ingredient of a Will ; yet it cannot in such case he considered 
 as a deed {t). 
 
 It is also a peculiar property in a Will, as it will hereafter 
 more fully appear, that by its nature it is in all cases a re- 
 vocable instrument, even should it in terms be made irrevoc- 
 able (m) ; for it is truly said, that the first grant and the last 
 Will is of the greatest force (f). 
 
 Another essential difference between a Will and a deed 
 may be mentioned, that there cannot be a conjoint or mutual 
 Will : an instrument of such a nature is unknown to the 
 testamentary law of this country (,r). But there are several 
 authorities which appear to show that this doctrine does not 
 go further than to deny that a conjoint or mutual Will can 
 be made with the characteristic quality of being irrevocable, 
 unless with the concurrence of the joint or mutual testators. 
 Such a Will is certainly revocable {y). But if either of the 
 testators die without revoking it, the Will is valid and en- 
 titled to probate as far as respects his property (s). ^ATiere, 
 however, two testators made a joint Will containing devises 
 and legacies to take effect after the decease of both of them, 
 it was held that probate could not be granted of the Will 
 during the lifetime of either (a). 
 
 (t) Lord Darlington v. Pulteney, 
 1 Cowp. 260. Attorney- General 
 V. Jones, 3 Price, 368. See iwst, 
 Pt. I. Bk. II. Ch. II. § III., as to 
 what instruments are testamen- 
 tary. 
 
 (u) Vynior's case, 8 Co. 82 a. 
 See j)ost, Pt. I. Bk. ii. Ch. iii. 
 
 («) Co. Lit. 112 6. 
 
 (x) 1 Cowp. 268, in Lord Mans- 
 field's judgment. Hobson v. Black- 
 burn, 1 Add. 277 : but see posf, 
 Pt. I. Bk. II. Ch. III., as to the 
 validity of such a Will in Equity. 
 
 {y) But see j90s<, Pt. i. Bk. ii. Cli. 
 III., as to the irrevocability of such 
 a Will in Equity. 
 
 {z) In the goods of Stracey, Dea. 
 & Sw. 6. In the goods of Love- 
 grove, 2 Sw. & Tr. 453. 
 
 (a) In the goods of Raine, 1 Ssv. 
 & Tr. 144, coram Sir C. CressweU. 
 But quctre, whether the delay of 
 the effect of tlie Will interfered 
 with its title to immediate probate 
 as the Will of the deceased tes- 
 tator.
 
 BOOK THE SECOND. 
 
 OF THE MAKING, EEVOCATION AND REPUBLICATION OF WILLS 
 OF PERSONAL ESTATE. 
 
 CHAPTEE THE FIRST. 
 
 WHO IS CAPABLE OF MAKING A WILL OF PERSONALTY. 
 
 IT may be laid down generally, that all persons are capable 
 of disposing of their personal estate by testament, who have 
 sufficient discretion, their own free will, and who have not 
 been guilty of certain offences (a) . Wherefore there are three 
 grounds of incapacity ; 1, the want of sufficient legal discre- 
 tion; 2, the want of liberty or free will; 3, the criminal 
 conduct of the party. 
 
 This may be the proper place to mention two cases which 
 do not come, in strictness, under any one of these heads. 
 Formerly alien friends, or such whose countries were at peace Aliens. 
 with ours, might make Wills to dispose of their personal 
 estate (although being incapable of holding real property, 
 they were of course equally so of devising it) ; but alien 
 enemies, unless they had the king's licence, express or im- 
 plied, to reside in this country, were incapable of making any 
 testamentary disposition of their property (b). Now by sec. 2 33 & 34 Vict. 
 
 c. 14, 
 
 of the Naturalization Act, 1870, real and personal property 
 of every description may be taken, acquired, held and dis- 
 posed of by an alien in the same manner in all respects as by 
 a natural-born British subject (c). But although the words 
 
 (a) Swinb. Pt. 2, s. 1. sect. 3 of sect. 2, "that this sect. 
 
 (6) Wentw. c. 1, p. 35, 14th shall not affect any estate or 
 
 edit. ; Vin. Ahr. Devise, G. 17 ; interest in real or personal pro- 
 
 Bac. Ahr. Wills, B. 17. perty to which any person has or 
 
 (c) But it is provided hy suh- may become entitled, either me-
 
 10 Capacity to male a Will— The King. [^t. i. Bk. ii. 
 
 "disposed of by an alien in the same manner in all respects 
 as a natural-born British subject " include a disposition by 
 Will, they do not affect the form of the Will nor enable a 
 foreigner to make a Will which is not in conformity with the 
 law of his own country : and such a Will executed abroad 
 according to the formalities required by English Law is 
 invalid, notwithstanding the provisions of the Naturalization 
 Act, 1810(d). 
 The King or With respect to the power of the reigning Sovereign to 
 
 make a Will of his or her personal property ; — it appears by 
 the Rolls of Parliament, that in the sixteenth year of King 
 Richard the Second the Bishops, Lords and Commons, 
 assented in fall Parliament, that the king, his heirs and suc- 
 cessors, might lawfully make their testaments (e). And 
 the statute 39 & 40 George III. c. 88, s. 10, enacts, "that 
 all such personal estate of his Majesty, and his successors 
 respectively, as shall consist of monies which may be issued 
 or applied for the use of his or their privy purse, or monies 
 not appropriated to any public service, or goods, chattels or 
 effects, which have not or shall not come to his Majesty or 
 shall not come to his successors respectively, with or in right 
 of the crown of this realm, shall be deemed and taken to be 
 personal estate and effects of his Majesty and his successors 
 respectively, subject to disposition by last Will and Testa- 
 ment, and that such last Will and Testament shall be in 
 writing, under the sign manual of his Majesty and his suc- 
 cessors respectively, or otherwise shall not be valid ; and 
 that all and singular the personal estate and effects whereof 
 or whereunto his Majesty or any of his successors shall be 
 
 diately or immediately in posses- (e) 4 Instit. 335. "Whether 
 
 sion or expectancy in pursuance of kings and sovereign princes can 
 
 any disposition made before the make their testaments, says Godol- 
 
 passingof this Act, or in pursuance phin (Pt, 1, c. 7, s. 4), is resolved 
 
 of any devolution by law on the in the affirmative ; but of what 
 
 death oi" any person dying before things, is such a qucstio statAs, as 
 
 the passing of this Act." is safest resolved by a noli me 
 
 (d) In the goods of Von Buseck, tangere. See also Swinb. Pt. 2, 
 
 6 P. D. 211. See also Bloxam v. s. 27, 
 Favre, 8 P. D. 101 ; 9 P. D. 130.
 
 Ob. I.] Of the Capacity to make a Will — The King. 
 
 possessed or entitled at the time of his and their respective 
 demises, suhject to such testamentary disposition as afore- 
 said, shall be liable to the payment of all such debts as shall 
 be properly payable out of his or their privy purse, and that 
 subject thereto, the same personal estate and effects of his 
 Majesty and his successors respectively, or so much thereof 
 respectively as shall not be given or bequeathed or disposed 
 of as aforesaid, shall go in such and the same manner, on 
 the demise of his Majesty and his successors respectively, as 
 the same would have gone if this Act had not been made." 
 
 But it should seem that the Court has no jurisdiction 
 to grant any probate of the Will of a deceased Sovereign. 
 On one occasion (/), an application was made to the Preroga- 
 tive Court of Canterbury for its process, calling on the 
 Proctor of his Majesty, King George IV., to see and hear 
 an alleged testamentary paper of his late Majesty King 
 George III. propounded and proved : but the Court refused 
 the application, on the ground that in substance the process 
 was prayed, and a demand adversely made, against the reign- 
 ing Sovereign ; contrary to the established doctrine, that no 
 action or suit, even in civil matters, can be brought against 
 the king : The learned judge, Sir John Nicholl, in the course 
 of his judgment, observed, that the history of the Wills of 
 Sovereigns, from Saxon times, from Alfred the Great down 
 to the present day, had been diligently searched and ex- 
 amined ; but no instance had been produced of any Sovereign 
 having taken probate in the Archbishop's Court, or of any 
 Sovereign's Will having been proved there {(j) ; nor any in- 
 
 (/) In the goods of his late declined to act. It is then recited 
 
 Majesty George III., 1 Add. 255. that under tliese circumstances the 
 
 {g) One single instance occurs effects would be at the disposal of 
 
 in the Eolls of Par] lament of some- the Archbishop of Canterbury as 
 
 thing like a reference to this juris- Ordinary, who should direct them 
 
 diction in respect of a royal Will. to be sold. But Henry V., instead 
 
 In the 1st of Henry V. it is stated, of allowing the effects to be sold, 
 
 that Henry IV. having made a took to them, and agreed to pay 
 
 Will, and appointed executors their appraised value : 1 Add. 
 
 thereof, those executors, fearing 2G3 ; 4 Inst. 335. The only Will 
 
 the assets would be insufficient, of a sovereign deposited in the 
 
 11
 
 12 
 
 Caimcity to mahe a Will — Infants. [Pt. i. Bk. ii. 
 
 lufants. 
 
 Idiots. 
 
 Deaf and 
 dumb. 
 
 stance of any successor of any intestate Sovereign coming to 
 the Court for letters of administration ; wliicli the learned 
 judge considered as furnishing decisive evidence that the 
 Court had no jurisdiction \\hatever therein {h). This decision 
 was subsequently approved and acted on by Sir Cresswell 
 Cresswell (i). 
 
 SECTION I. 
 
 Persons incaiMhlefi'oimvant of Discretion. 
 
 In this class are to be reckoned infants, with respect to 
 whom it is enacted by stat. 1 Vict. c. 26, s. 7, which, how- 
 ever, does not apply to Wills made before 1 Jan., 1838, " that 
 no Will made by any person under the age of twenty-one years 
 shall be valid." 
 
 An idiot, that is, a fool or madman from his nativity who 
 never has any lucid intervals (k), is incapable of making a 
 Will. Such a one is described to be a person who cannot 
 number twenty, tell the days of the week, does not know 
 his own father or mother, his own age, &c. {I). But these, 
 though they may be evidences, yet they are too narrow, and 
 conclude not always {m) : for whether idiot or not is clearly a 
 question of fact referrible to the individual circumstances of 
 each particular case. If an idiot should make his testament 
 so well and wisely in appearance that the same may seem 
 rather to be made by a reasonable man than by one void of 
 discretion, yet this testament is void in law {n). 
 
 One who is deaf and dumb from his nativity is, in pre- 
 sumption of law, an idiot, and therefore incapable of making 
 
 registry of the Prerogative Court 
 is the Will of Henry VIII. That 
 is understood to be a copy merely, 
 and there is no appearance of any 
 probate of it having been taken. 
 It was probably deposited there 
 for safe custody, or as a place of 
 notoriety for such a purpose : 1 
 Add. 263. 
 
 (h) 1 Add. 262, 264, 265, 
 
 (i) In the goods of his late 
 
 Majesty Geo. III., 3 Sw. & Tr. 
 199. 
 
 (k) 1 Hale, P. C. 29. Bac. Abr. 
 Idiots, &c. A. 1. Beverley's Case, 
 4 Co. 124 b. 
 
 (I) 1 Hale, P. C. 29. Bac. Abr. 
 Idiots, &c. A. Swinb. Pt. 2, s. 4. 
 
 (m) 1 Hale, P. C. 29. 
 
 (?t) Swinb. Pt. 4, s. 4, pL 5, 7. 
 Bac. Abr. Wills, B. 12.
 
 Ch. I. § I.] Of the Capacity to make a Will — Blind. IS 
 
 a Will; but such presumption may be rebutted, and if it 
 sufficiently appears that he understands what a testament 
 means, and has a desire to make one, then he may by signs 
 and tokens declare his testament (o). One who is not deaf 
 and dumb by nature, but being once able to hear and speak, 
 if by some accident he loses both his hearing and the use of 
 his tongue, then in case he shall be able to write, he may 
 with his owa hand write his last Will and Testament (|j). 
 But if he be not able to write, then he is in the same case as 
 those which be both deaf and dumb by nature, i.e., if he 
 have understanding he may make his testament by signs, 
 otherwise not at all ((/). Such as can speak and cannot hear, 
 they may make their testaments, as if they could both speak 
 and hear, whether that defect came by nature or otherwise (/■). 
 Such as be speechless only, and not void of hearing, if they 
 can write, may very well make their testament themselves by 
 writing : if they cannot w^ite, they may also make their testa- 
 ments by signs, so that the same signs be sufficiently known 
 to such as then be present (s). 
 
 It is laid down in the old Text Books of the Ecclesiastical Blind persons. 
 Law, that although he that is blind may make a nuncupative 
 testament {t), by declaring his Will before a sufficient number 
 of witnesses ; yet that he cannot make his testament in 
 writing, unless the same be read before witnesses, and in 
 
 (o) Swinb. Pt. 2, s. 4, pi. 2. nature of the signs and motions by 
 
 Godolph. Pt. 1, c. 11. 4 Burn, E. which the instructions were com- 
 
 L. 60. See also Dickenson v. municated to him : In the goods of 
 
 Blisset, 1 Dick. 268 ; and the Owston, 2 Sw. & Tr. 461. In the 
 
 judgment of "Wood, V. C, in Har- goods of Geale, 3 Sw. & Tr. 431. 
 
 rod V. Harrod, 1 Kay & J. 4, 9. {p) Swinb. Pt. 2, s. 10, j)!. 2 ; 
 
 Where a testator, who was deaf Godolph. Pt. 1, c. 11. 
 
 and dumb, made his Will by com- (q) Swinb. Pt. 2, s. 10, pi. 2 ; 
 
 municating his testamentary in- Godolph. Pt. 1, c. 11. 
 
 structions to an acquaintance by (r) Ihid, 
 
 signs and motions, who prepared a («) Swinb. Pt. S,! s. 10, pi. 4 • 
 
 Will in conformity with such in- Godolph. Pt. 1, c. 11. 
 
 structions, which was afterwards {t) See post, Chap. ii. § vi. as to 
 
 duly executed by the testator, the the restrictions on nuncupative 
 
 Court required an affiilavit from Wills, 
 the drawer of the Will, stating the
 
 14 
 
 Capacitij to make a Will — Lunatics. [Pt. i, Bk. ii. 
 
 PjrsoTis wlio 
 ca inot rea'I. 
 
 Lunatic 
 
 their presence acknowledged by the testator for his last 
 Will (») : And that, therefore, if a writing be delivered to the 
 testator, and he not hearing the same read, acknowledged the 
 same for his Will, this would not be sufficient ; for it may be 
 that if he should hear the same he would not own it {x). And 
 the Civil Law expressly required that the Will should be 
 read over to the testator, and approved by him, in the 
 presence of all the subscribing witnesses. But in England 
 this strictness is not required, and it is sufficient if there is 
 satisfactory proof before the Court of the testator's know- 
 ledge and ajjproval of the contents of the Will which he 
 executed {y) : And it is not necessary to produce evidence that 
 the identical paper, which the testator executed as his Will, 
 was ever read over to him (z). 
 
 And what precautions are necessary for authenticating a 
 blind man's Will, seem in like degree requisite in the case of 
 a person who cannot read. For though the law in other cases 
 may presume, that the person who executes a Will knows 
 and approves of the contents thereof ; yet that presumption 
 ceases, where by defect of education, he cannot read or by 
 sickness he is incapacitated to read the Will at that time (a). 
 
 A lunatic, that is, a person usually mad, but having in- 
 tervals of reason {h), during the time of his insanity, cannot 
 make a testament, nor dispose of anything by Will (c). And 
 " so strong is this impediment of insanity of mind, that if 
 the testator make his testament, after his fui'or has overtaken 
 him, and while as yet it possesses his mind, although the 
 
 («) Swinb. Pt. 2,s. 11 ; Godolph. 
 Pt. 1, c. 11. 
 
 {x) Ibid. See also Barton v. 
 Eobins, 3 Phillim. 455, n. (6). 
 
 (y) 4 Burn, E. L. 60 ; Moore 
 Paine, 2 Cas. temp. Lee, 595. 
 See also Re Axford, 1 Sw. & Tr. 
 540. The single oatli of tlie writer 
 has been allowed sufficient by the 
 Court of Delec^ates to prove the 
 identity of the Will : Ibid. 
 
 (x) Fincham v. Edwards, 3 Curt. 
 63 : affirmed on appeal, 4 Moo. 
 P. C. 198. See also Longchamp v. 
 Fish, 2 Bos. & PulL N. R. 415. 
 Post, Pt. I. Bk. IV. Ch. III. § V. 
 
 (a) 4 Burn E. L., p. 61 ; Barton 
 V. Robins, 3 Phillira. 455, n. (b). 
 See post, Pt. I. Bk. iv. Ch. in. § v. 
 
 {b) Beverley's case, 4 Co. 124 b. 
 
 {(') Swinb. Pt. 2, s. 3 ; Godolph 
 Pt. 1, c. 8, s. 2. 
 
 i
 
 Ch. I. § 1.] Of the Capacity to make a Will — Lunatics. 15 
 
 furor after departing or ceasing, the testator recover his fornier 
 understanding, yet does not the testament made during his 
 former fit recover any force or strength thereby " (<Z). 
 
 If a party impeach the vaHdity of a Will on account of a 
 supposed incapacity of mind in the testator, it will be incum- 
 bent on such party to establish such incapacity by the clearest 
 and most satisfactory proofs (e). The burthen of proof rests 
 upon the person attempting to invalidate what, on its face, 
 purports to be a legal act (/). Sanity must be presumed till 
 the contrary is shown (^). Hence, if there is no evidence of 
 insanity at the time of giving the instructions for a Will, the 
 commission of suicide, three days after, will not invalidate 
 the instrument by raising an inference of previous derange- 
 ment (h). 
 
 But it must be borne in mind, that the presumption of rr-suiiiptioii 
 
 1 Til ■ ^ 1 ^"^ .sanity. 
 
 sanity is not to be treated as a legal presumption, but, at the 
 utmost, as a mixed presumption of law and fact (if not as a 
 mere presumption of fact), that is, an inference to be made 
 by a jury from the absence of evidence to show that the 
 testator did not enjoy that soundness which experience shows 
 to be the general condition of the human mind. If, there- 
 fore, a Will is produced before a jury and its execution 
 proved, and no other evidence is offered, the jury would be 
 properly told that they ought to find for the Will. And if 
 the party opposing the Will gives some evidence of incom- 
 petency, the jury may nevertheless, if it does not disturb their 
 belief in the competency of the testator, find in favour of the 
 Will. And in each case, the presumption of competency 
 
 (d) Swinb. Pt. 2, s. 3, pi. 2 ; constitutional insanity may be 
 Oodolph. Pt. 1, c. 8, s. 2. But a pleaded : Frere v. Peacocke, 3 
 Will is not revoked by the subse- Curt. 664. 
 
 quent insanity of the testator : (/) 2 Phill. Ev. 293, 7th edit. 
 
 Swin. Pt. 11, s. 3, pi. 3 ; 4 Co, (g) Groom v. Thomas, 2 Hagg. 
 
 61, b. Post, Pt. I. Bk. II. Ch. iir. 434. 
 
 § V. (h) Burrows v. Burrows, 1 Hagg. 
 
 (e) The law seems unsettled as 109. See also Hoby v. Hoby, 1 
 to how far, in cases of alleged 
 unsoundness of mind, hereditary
 
 16 
 
 Of the Capacity to make a Will. [Pt. i. Bk. ii. 
 
 would prevail. Still, the onus prohandi lies, in every case, 
 on the party relying on a Will, and lie must satisfy the jury 
 that it is the Will of a capable testator (?) : and when the whole 
 matter is before them on evidence given on both sides, if the 
 evidence does not satisfy them that the Will is the Will of a 
 competent testator, they ought not to affirm by their verdict 
 that it is so. Accordingly, where, in an action by heir-at- 
 law against devisees, — the question in issue being as to the 
 capacity of the testator to make a Will, — the judge in his 
 summing up told the jury " that the heir-at-law was entitled 
 *' to recover unless a Will was proved, but that, when a Will 
 " was produced, and the execution of it proved, the law pre- 
 " sumed sanity, and therefore the burthen of proof was 
 " shifted ; and that the devisee must prevail; unless the heir- 
 " at-law established the incompetency of the testator, and 
 " that if the evidence was such as to make it a measuring 
 " cast, and leave them in doubt, they ought to find for the 
 " defendants." This was held to be a misdirection (k). 
 Will made If ^ lunatic person have clear or calm intermissions (usually 
 
 during a lucid galled lucid intervals), then during the time of such quietness 
 and freedom of mind, he may make his testament, appointing 
 executors, and disposing of his goods at pleasure (Z). "If 
 you can establish," said Sir Wm. Wynne, in the case of 
 Cartwright v. Cartwj-ig]it(m), "that the party afflicted habi- 
 tually by a malady of the mind has intermissions, and if there 
 was an intermission of the disorder at the time of the act, 
 that being proved is sufficient, and the general habitual insanity 
 will not affect it ; but the effect of it is this, it inverts the order 
 of proof and of presumption ; for until proof of an habitual 
 
 transfer in 
 such case of 
 onusprobandi. 
 
 (t) And a fortiori when it ap- 
 pears that the testator was subject 
 to delusions : Smee v. Smee, 5 P. 
 D. 84. 
 
 i]i) Sutton V. Sadler, 3 C. B. 
 (N. S.) 87. See also Accord. 
 Symes v. Green, 1 Sw. & Tr. 401. 
 As to the onus of showing sanity 
 at the time of mutilation, in order 
 to set up a revocation, see Harris 
 
 V. Berrall, 1 Sw. & Tr. 153 ; post, 
 p. 36. 
 
 (0 Swinb. Pt. 2, s. 3, pi. 3. Go- 
 dolph. Pt. I, c. 8, s, 2. Wentw. 
 c. 1, p. 33, 14th ed. Hall t'. War- 
 ren, 9 Ves. 610. Eodd v. Lewis, 2 
 Cas. temp. Lee, 176. 
 
 (m) 1 Phillim. Eep. 100. See 
 the particulars of this case, post, 
 p. IS.
 
 oil. I. § i.j Of the Capacity to make a Will — Lunatics. 17 
 
 insanity is made, tlic presumption is that the party agent, 
 like all human creatures, was rational ; but where an habitual 
 insanity of the mind of the person who does the act, is estab- 
 lished, there the party who would take advantage of an 
 interval of reason must prove it " (;?). 
 
 But although the law recognises acts done during such What is suffi- 
 intervals as valid, yet it is scarcely possible to be too strongly i„ci'(i interval 
 impressed with the great degree of caution necessary to be 
 observed in examining the proof of a lucid interval (o) ; 
 and such proof is matter of extreme difficulty, for this, among 
 other reasons, viz., that the patient is, not unfrequently, 
 rational to all outward appearance without any real abatement 
 of his malady (jj). On the other hand, if the deceased was 
 subject to attacks producing temporary incapacity, and was 
 at other times in full possession of his mental powers, such 
 attacks may naturally create in those who only happen to see 
 him when subject to them, a strong opinion of his permanent 
 incapacity. These considerations, while they tend to reconcile 
 the apparent conti-adictions of witnesses, render it necessary 
 for the Court to rely but little upon mere opinion, to look at 
 the grounds upon which opinions are formed, and to be 
 guided in its own judgment by facts proved, and by acts 
 done, rather than by the judgments of others {q). 
 
 In Ex parte Ilolyland (r). Lord Eldon observed, that in 
 the case of the Attorncij -General v. ParntJier, " Lord Thurlow 
 
 (n) See also the same doctrine not set aside a Will on proof by 
 
 laid down by Lord Tburlow in interrogatories, but without plea, 
 
 Attorney-General v. Parnther, 3 that the deceased many years 
 
 Bro. C. C. 443, and Sir W. Grant before had been under an insane 
 
 in Hall v. Warren, 9 Ves. 611. delusion : Kemble v. Church, 3 
 
 See also Swinb. Pt. 2, s. 3, pi. 7, Hagg. 273. 
 
 where it is said, that if it be (o) By Sir John Nicholl in White 
 
 proved that the testator was once v. Driver, 1 Phillim. Eep. 88. 
 
 mad, the law presumeth him to (^i) By Sir John Nicholl in Brog- 
 
 continue still in that case, unless den v. Brown, 2 Add. 445, and in 
 
 the contrary be proved. See also Ayrey v. Hill, 2 Add. 210. 
 
 Godolph. Pt. 1, c. 8, s. 2. But ((/) By Sir John Nicholl in Kiii- 
 
 where the attesting witnesses, dis- dlesideu. Harrison, 2 Phillim. Ke^). 
 
 interested medical men, sjieak 459. 
 
 strongly to sanity, the Court will (r) 11 Ves. 11. 
 
 W.E. — VOL. I. G
 
 IS Oftlw, Cctpacity to make a Will. [Pt. i. Bk. ii. 
 
 said that where lunacy is once established by clear evidence, 
 the party ought to be restored to as perfect a state of mind 
 as he had before ; and that should be proved by evidence as 
 clear and satisfactory. I cannot agree to that proposition, 
 either as to property or with reference to such a case as this ; 
 for suppose the strongest mind reduced by the delirium of a 
 fever or any other cause, to a very inferior degree of capacity, 
 admitting of making a Will of personal estate (to which a 
 boy of the age of fourteen is competent), the conclusion is 
 not just that as that person is not what he had been, he should 
 not be allowed to make a Will of personal estate." It must 
 be observed that Sir W. Grant, in Hall v. Warren (s), does 
 not appear to have understood Lord Thurlow in the same 
 sense as Lord Eldon did in the preceding remarks, nor indeed 
 does the report in Broun of the Attorney-Generals . Parnther 
 bear any such construction. "If general lunacy," said Sir 
 W. Grant, " is established, they will be under the necessity 
 of showing, according to the Attorney-General v. Parnther, 
 that there was not merely a cessation of the violent symptoms 
 of the disorder, but a restoration of the faculties of the mind 
 sufficient to enable the party soundly to judge of the act." 
 Proof of lucul In the case of Carttcriyht v. Carticright{t), it appeared 
 from\'herct"f ^^at the testatrix was early in life afflicted with the disorder 
 t r'^Tw^ir °^ ^®^ mind. She afterwards was supposed to be perfectly 
 recovered, and continued for several years to conduct a house 
 and establishment of her own as a rational j^erson ; but her 
 habit and condition of body, and her manner for several 
 months before the date of her Will, were those of a person 
 afflicted with many of the worst sjTuptoms of insanity, and 
 continued so after making the Will. She was attended by 
 Dr. Battle, who desired the nurse and other servants to 
 prevent her from reading and writing, as such occupation 
 might disturb her head, and in consequence thereof she was 
 for some time kept from the use of books and writing ma- 
 terials. However, some time prior to writing the Will, she 
 
 (s) 9 Yes. 611. (J) 1 Pliillim. 90, 
 
 I
 
 Cli. 1. § I.] Of the Capacity to make a Will — Lunatics. 19, 
 
 became very importunate for the use of pen and paper, and 
 frequently asked for them in a very clamorous manner. Dr. 
 Battie, in order to quiet and gratify her, consented that she 
 should have them, telling her nurse and another servant that 
 it did not signify what she might write, as she was not fit to 
 make any proper use of them. As soon as Dr. Battie had 
 given permission, pen, ink, and paper were carried to her, 
 and her hands, which had been for some time kept constantly 
 tied, were let loose, and she sat down at her bureau and der 
 sired her nurse and servant to leave her alone while she wrote. 
 They went into an adjoining room and watched her. At first 
 she wrote upon several pieces of paper, and got up in a wild 
 and furious manner and tore the papers and threw them into 
 the fire one after another. After walking up and down the 
 room many times in a wild and disordered manner, muttering 
 to herself, she wrote the Will. She inquired the day of the 
 month, and an almanack was given to her by one of the 
 nurses, and the day pointed out to her. She then called for 
 a candle to seal the paper, which was given to and used by 
 her for that purpose, although they used generally to be 
 cautious not to trust her with a candle, and w^ere forced to 
 hold it at a distance from her if she read the newspaper. 
 The survivor of the two witnesses to the transaction deposed 
 that, in her opinion, the testatrix had not then sufficient 
 capacity to be able to know what she did, and that during 
 the time she was occupied in writing, which was upwards of an 
 hour, she by her manner and gestures showed many signs of 
 insanity. The Will was written in a remarkably fair hand, 
 and without a blot or mistake in a single word or letter : and 
 it tvas a 'proper and natural Will, and conformahle to what 
 her affections ivere proved to he at the time, and her executors 
 and trustees were very discreetly oj^pointed. Two months 
 after this writing of the Will, in a conversation with tbe 
 mother of the parties benefited by the Will, the testatrix 
 mentioned that she had made such a Will, and ordered her 
 servant to bring it, and she then delivered it to the mother,, 
 observing that there was no need of witnesses as the estate 
 
 G 2
 
 20' 
 
 Of the Capacity to make a WllL [Pt. i. Bk. ii. 
 
 was all personal, and the "Will in her own handwriting. Sir 
 Wm. Wynne pronounced the Will to he the legal Will of the 
 deceased, and further said, that in his apprehension the 
 forming of the plan, and pursuing and carrying it into effect 
 with propriety and without assistance, would have heen suf- 
 ficient to have established an interval of reason if there had 
 been no other evidence ; but it was further affirmed, by the 
 recognition and the delivery of the Will. From this sentence 
 an appeal was interposed to the High Court of Delegates 
 — who affirmed the judgment of Sir Wm. Wynne {u). That 
 very eminent judge, in the course of giving sentence below, 
 after remarking that the Court did not depend on the opinions 
 of the witnesses, but on the facts to which they deposed, 
 delivered the following observations : 
 
 " The strongest and best proof that can arise as to a lucid 
 interval is that which arises from the act itself of making the 
 Will. That I look upon as the thing to be first examined, 
 and if it can be proved and established that it is a rational 
 act rationally done, the whole case is proved. What can you 
 do more to establish the act? because, suppose you are able 
 to show the party did that which appears to be a rational act, 
 and it is his own act entirel}', nothing is left to presumption 
 in order to prove a lucid interval. Here is a rational act, 
 rationally done (r). In my apprehension, where you are able 
 completely to establish that, the law does not require you to 
 
 (u) 1 Phillim. 122. ton, referring to the alcove pas- 
 [v) It is not, however, to be sage in the judgment of Sir W. 
 supposed that the learned judge Wynne, said, "Though I cannot 
 here considers that every rational say I altogether agree to that 
 act rationally done is sufficient to dictum, still it is entitled to great 
 j)rove a lucid interval. It is the weight, and, to a certain extent, 
 particular manner in which the a rational act done in a rational 
 act was done in this case which manner, though not, I think, ' the 
 leads the judge to the conclusion strongest and best proof of a 
 that there was a lucid interval : 2 lucid interval, does contribute to 
 Curt. 447, by Sir H. Jenner Fust, the establishment of it." See also 
 in Chambers v. The Queen's Proc- the observations of Sir C. Cress- 
 tor. In Bannatyne v. Bannatyne, well, in Nicholls v. Binns, 1 Sw. & 
 2 Roberts. 472, 501, Dr. Lushing- Tr. 239,
 
 Gil. I. § I.] Oftlie Capacity to make a Will — Lunatics. 21 
 
 go further ; and the citation from Swinburne states it to be 
 so. The manner he has laid it down is (it is in the part 
 in which he treats of what persons may make a Will) (w) : 
 * The last observation is, If a lunatic person, or one that is 
 beside himself at some times but not continually, make his 
 testament, and it is not known whether the same were made 
 while he was of sound mind and memory or no, then, in case 
 the testament be so conceived as thereby no argument of 
 frenzy or folly can be gathered, it is to be presumed that 
 the same was made during the time of his clear and calm 
 intermissions, and so the testament shall be adjudged good, 
 yea, although it cannot be proved that the testator uscth to 
 have any clear and quiet intermissions at all, yet nevertheless 
 I suppose, that if the testament be wisely and orderly framed, 
 the same ought to be accepted for a lawful testament.' Un- 
 questionably there must be a complete and absolute proof 
 that the party who had so formed it did it without any as- 
 sistance. If the fact be so, that he has done as rational an 
 act as can be without any assistance from another person, 
 what there is more to be proved I don't know, unless the 
 gentleman could prove by any authority or law what the 
 length of the lucid interval is to be, whether an hour, a day, 
 or a month. I know no such law as that ; all that is wanting 
 is, that it should be of sulficient length to do the rational act 
 intended. I look upon it, if you are able to establish the 
 fact, that the act done is perfectly proper, and that the party 
 who is alleged to have done it was free from the disorder 
 at the time, that is completely sufficient." Accordingly, Sir 
 John Nicholl, in Scruhy v. Fordham (x), lays it down as a 
 general rule, that where a Will is traced into the hands of a 
 testator, whose sanity is fairly impeached, but of whose sanity 
 or insanity at the time of doing or performing some act with 
 relation to the Will there is no direct evidence, the agent is 
 to be inferred rational, or the contrary, from the character, 
 broadly taken, of his act (2/). 
 
 (1/)) SwinT). Pt. 2, ?. 3, pi. 14. (y) See also Chambers v. Queen's 
 
 (x) 1 A.M. !(). Proctor, 2 Curt. 41."<, 4.51, Accoi.l.
 
 2^ Of the Capacity to make a Will. [Pt. i. Bk. ii: 
 
 In the case of M'Adam v. Walker (z), Lord Chancellor 
 Eldon mentioned that he had been concerned as counsel, in 
 a cause where a gentleman who had been for some time in- 
 sane, and who had been confined till the hour of his death in a 
 madhouse, had made a Will while so confined. The question 
 was, whether he was of sound mind at the time of making 
 this testament. It was a Will of large contents, proportion- 
 ing the difi'erent divisions with the most prudent and proper 
 care, with a due regard to what he had previously done to the 
 objects of his bounty, and in every respect pursuant to what 
 he had declared, before his malady, he intended to have done. 
 It was held, that he was of sound mind at the time. 
 
 In the cases above stated, the act was not only done and 
 completed by the testator himself, hut tltc Will icas proper and 
 natural. In another case, Clarice v. Lear and Scarwell [a), 
 •where the instrument, although written with great accuracy 
 by the testator him&elf, was made in favour of a person to 
 whom he had no good cause whatever to give a benefit, it 
 was held that the act of framing such an instrument furnished 
 no proof of the existence of a lucid interval. That was the 
 case of a man who had been certainly disordered in his mind 
 for a length of time. He went to Little Hampton to bathe 
 in the sea, and there he saw a young woman at the house 
 where he boarded, of whom he had no prior knowledge, and 
 wanted to marry her, at a time when he was insane ; and 
 being brought to London in a strait waistcoat, he there wrote 
 a paper, by way of ccdicil, giving her a legacy {h). 
 
 Distinction, as With respcct to the comparative facility of proving a lucid 
 to proof of 
 
 Hc-e al?o the address of Sir C. ence of lucid intervals, at the time 
 
 Ciresswell to the jury in Nicliolls of doing testamentary acts, see 
 
 V. Binns, 1 Sw. & Tr. 239. Attorney- General v. Pamther, 3 
 
 («) 1 Dow. 178. Bro. C. C. 441 ; Coghlan v. Cogh- 
 
 . (a) March, 1791, cited in 1 Lm, cited in 1 Phillim. 120. 
 
 Phillim. 119, by Sir Wm. Wynne. Williams v. Goude, 1 Hagg. 577. 
 
 ih) See also the observations of Borlase v. Borlase, 4 Notes of 
 
 Sir J. NichoU, in Evans v. Knight, Cases, 106 ; and Lord Brougham's 
 
 1 Add. 237, 238 ; and for further observations in Waring v. Waring, 
 
 cafiea aa to the proof of the exist- 4 Moo. P. C. 351.
 
 Cli. I. § I.] Of the Capacity to make a Will — Lunatics. 23 
 
 interval, there is a great distinction to be observed, with re- lucid interval 
 spect to a case of dehrium, set up in opposition to a Will, as delirium and 
 contradistinguished from fixed mental derangement, or per- '"^'^^"i^y- 
 manent proper insanity. The reason for this is given with 
 peculiar force and precision of language, by Sir John Nicholl, 
 in Brogden v. Broicn (c). " In cases of permanent proper 
 insanity, the proof of a lucid interval is matter of extreme 
 difficulty, as the Court has often had occasion to observe, and 
 for this, among other reasons, namely, that the patient so af- 
 fected is not unfrequently rational to all outward appearance, 
 without any real abatement of his malady : so that, in truth 
 and substance, he is just as insane, in his apparently rational 
 as he is in his visible raving fits. But the apparently rational 
 intervals of persons, merely delirious, for the most part are 
 really such. Delirium is a fluctuating state of mind, created 
 by temporary excitement, in the absence of which, to be as- 
 certained by the appearance of the patient, the patient is, 
 most commonly, really sane. Hence, as also, indeed, from 
 their greater presumed frequency in most instances in cases 
 of delirium, the probabilities, a priori, in favour of a lucid in- 
 terval are infinitely stronger in a case of delirium, than in one 
 of permanent proper insanity ; and the difficulty of proving 
 a lucid interval is less, in the same exact proportion, in the 
 former, than it is in the latter case, and has always been so 
 held by this Court" {d). 
 
 The great case of Deiv v. Clark {c), which obtained the Partial in- 
 most complete and solemn consideration, led to a full investi- '^''^^^^^' 
 gation of that which has often been called " Partial Insanity," 
 but which would, perhaps, be better described by the phrase 
 " insanity, or unsoundness, always existing, although only 
 occasionally manifest" (/). There the case pleaded by an Dew v. Clark, 
 only daughter in a resj)onsive allegation, in the Prerogative 
 
 (c) 2 Add. 445. also Dr. Haggard's Report from 
 
 (o!) See also the observations of the judge's notes. 
 
 Dr. Lushington in Dimes v. Dimes, (/) 6 Moo. P. C. 350, by Lord 
 
 10 Moo. P. C. 422, 426. Brougham. 
 
 («) 1 Add. 279 ; 3 Add. 79. See
 
 24 
 
 Of the Capacity to mah a Will. [Pt. i. Bk. ii. 
 
 Court, in oi:)position to licr father's 'Will, was, that besides 
 labouring under mental jierversion in some other particulars, 
 especially on religious subjects, the deceased had an insane 
 aversion to his daughter, and was actuated solely by that illu- 
 sion to dispose of his property in the manner in which it was 
 purported to be conveyed by the contested Will. This alle- 
 gation was opposed, as inadmissible, on behalf of residuary 
 legatees named in the Will, But Sir John Nicholl admitted 
 it ; and after remarking that the case set up was one of 
 partial insanity — of insanity qiiod hoc, upon a particular sub- 
 ject, or rather, perhaps quod hcinc, as to a particular person, — 
 and that the possible occurrence of such a case of partial 
 insanity, and the consequent invalidity of a Will, which is 
 fairly presumable to have been made under its operation, 
 must be admitted on the authority of Greenn-ood's ca,se(g); 
 the learned judge proceeded to observe, with respect to the 
 daughter, " She must be apprised, however, as Avell that the 
 burthen of proof rests with her, as that this burthen, in my 
 judgment, is from the ver}- nature of the case, a jiretty heavy 
 one. The j)resent, indeed, may be less difficult to make out 
 than Greeiucood's case, in one respect, as the delusion under 
 which the deceased is charged to have laboured towards the 
 complainant is alleged to have been coupled with something 
 of insane feeling in other particulars, especially on the subject 
 
 ((/) The following statement of him; under the influence of which 
 this case is to he found in Lord (so said) he disinherited him. On a 
 Erskine's speech on the trial of trial in the Court of King's Bench 
 Hadtield : " The deceased, Mr. upon an issue devisavit lel non. 
 Greenwood, whilst insane took the jury found against the Will : 
 up an idea that his brother had Lut a contrary verdict was had in 
 administered poison to him, and the Court of Common Pleas : and 
 this became the prominent feature the suit ended in a compromise." 
 of his insanity. In a few months. See also Sir John Nicholls state- 
 however, he recovered his senses, ment of GreeuAvood's case, 3 Add. 
 and returned to his profes-sion, 96, 97, and Lord Eldon's in White 
 which was that of a barrister, &c., v. Wilson, 13 Ves. 89, and the 
 but could never divest his mind summing up of Lord Kenyon in 3 
 of the morbid delusion that his Curt. Appendix, pp. i — xxxi. 
 brother liad attempted to poison
 
 Ch. I. § I.] Of the Capacity to make a Will — Lunatics. 25 
 
 of religion ; although here, as in GreenicoocVs case, the 
 general csipacity is, in substance, unimpeached. But she 
 must understand that no course of harsh treatment — no 
 sudden bursts of violence — no display of unkind, or even un- 
 natural feeling, merely, can avail in proof of her allegation — 
 she can only prove it by making out a case of antipathy 
 clearly resolvable into mental perversion, and plainly evincing 
 that the deceased was insan3 as to her, notwithstanding his 
 general sanity " (//). After the evidence had been gone 
 through on both sides, the same learned judge delivered his 
 judgment : that the Will being proved to be the direct un- 
 qualified offspring (?) of a morbid delusion, as to the character 
 and conduct of the daughter, being the very creature of that 
 morbid delusion put into act and energy, the deceased must 
 be considered insane at the time of making the Will, and 
 consequently that the Will itself was null and void in law (/c). 
 In the course of his judgment the learned judge made the 
 following remarks, on the subject of partial insanity : "It was what is meant 
 said that 'partial insanity' was unknown to the law. The ^^y partial in- 
 
 ■^ '' samty. 
 
 observation could only have arisen from mistaking the sense 
 in which the Court used that term. It was not meant that 
 a person could be partially insane and sane at the same 
 moment of time : to be sane, the mind must be perfectly 
 sound; otherwise it is unsound. All that was meant was, 
 that the delusion may exist only on one or more particular 
 subjects. In that sense, the very same term is used by no 
 less an authority than Lord Hale, who says, ' There is a 
 partial insanity of mind and a total insanity. The former is 
 
 ill) 1 Add. 284. See also Ful- avoided canuot be connected with 
 
 ieck V. Allinson, 3 Hagg. 527. the influence of the insanity, and 
 
 (t) It must, however, be ob- may be proper in itself : Groom i'. 
 
 served that the rule of law is that, Thomas, 2 Hagg. 436. 
 
 in civil suits, it is not necessary to {k) 3 Add. 208. This judgment 
 
 trace or connect the morbid imagi- was afterAvards confirmed by the 
 
 nation with the act itself. If the Court of Delegates. A commission 
 
 mind is unsound, the act is void. of review was then applied for 
 
 The law avoids every act of the before the Lord Chancellor, but 
 
 lunatic during the period of the refused. See 5 Russ. Chan. Cas, 
 
 lunacy, altlidugli tlie act to be 1G3.
 
 26 
 
 Oftlie Capacity to mahe a Will [Pt. i. Bk. li. 
 
 eitlier in respect to tilings quod lioc vel illud insanire. Some 
 persons, that have a competent use of reason in respect of some 
 subjects, are yet under a particular dementia in respect of 
 some particular discourses, subjects or applications. Or else 
 it is partial in respect of degrees ; and this is the condition 
 of very many, especially melancholy persons, who, for the 
 most part, discover their defect in excessive fears and 
 griefs, and yet are not wholly destitute of the use of reason ; 
 and this partial insanity seems not to excuse them in the 
 committing of any offence for its matter capital ; for doubt- 
 less, most persons that are felons of themselves, and others. 
 are under a degree of partial insanity, when they commit 
 these offences. It is very difficult to define the invisible line 
 that divides perfect and partial insanity ; but it must rest 
 upon circumstances duly to be N\'eighed and considered both 
 by judge and jury, lest on the one side there be a kind of 
 inhumanity towards the defects of human nature ; or, on the 
 other side, too great an indulgence given to great crimes ' " (^. 
 
 (l) Dr. Haggard's Report from 
 the judge's notes, pp. 11, 12. The 
 Lord Chancellor (Lyndhurst), on 
 refusing a commission of review, 
 thus commented upon the judg- 
 ment of Sir John Nicholl : — 
 
 " In this case I do not find any 
 error in law : I do not find any 
 <loubtful or important question of 
 Jaw, which requires to be decided 
 in any solemn form. The only 
 point of law which has been agi- 
 tated has arisen out of an expres- 
 sion made use of by the learned 
 judge in the Court below. He 
 speaks of partial insanity y and it 
 was contended at the bar, that a 
 case of partial insanity would not 
 be a sufficient ground to lead a 
 Court to set aside, or to justify a 
 Court in setting aside a Will ; 
 and that the doctrine of partial 
 insanity is not known to the law 
 
 of England. I think I am stating 
 correctly the argument of counsel 
 with respect to this point, accord- 
 ing to the apprehension Avhich I 
 entertain of it, at the time when 
 the term partial insanity was re- 
 iterated, over and over again, as 
 expressing the ground of Sir John 
 NichoH's judgment. But I think 
 the argument, founded u))on that 
 jihrase, proceeds upon a misappre- 
 hension of what was meant by the 
 learned judge who occasionally 
 used it. I have read his judgment 
 with, great attention, and I collect 
 from it that his meaning is this : 
 that there must be unsoundness of 
 mind in order to invalidate a Will, 
 but that the unsoundness may be 
 evidenced in reference to one or 
 more subjects. ' It seldom liap- 
 pens,' he says, ' that a person wlio 
 is insane, displays that insanity
 
 Cli. I. § I,] Of the Capacity to make a Will — Lunatics. 27 
 
 These doctrines, and the subject of " Partial Insanity " (or, 
 as it has been more usually called of late, "Monomania,") 
 generally, were fully commented on and explained with great 
 ability by Lord Brougham, in delivering the opinion of the 
 Privy Council in Warinfi v. Warhuj ijn). His Lordship, after 
 demonstrating that no confidence can be placed in the acts, 
 or any act, of a diseased mind, however apparently rational 
 that act may appear to be, or may in reality be, proceeded to 
 observe, that " we are wrong in speaking of partial unsound- 
 ness ; we should say that the unsoundness always exists, but 
 it requires a reference to a peculiar topic, else it lurks and 
 appears not. But the malady is there ; and as the mind is 
 one and the same it is really diseased, while apparently 
 sound, and really its acts whatever appearances they may 
 put on, are only the acts of a morbid or unsound mind." 
 Accordingly, it was an established principle of law, that to 
 show unsoundness of mind it was not required that it should 
 be general ; it was sufficient if proved to exist on one or more 
 points, though in all other respects the man might conduct 
 
 with reference to every question apprehension, and as if his atten- 
 and every subject ; it shows itself tion had been directed to the very 
 with reference to particular sub- point, he himself, in the course of 
 jects, and sometimes with refer- his judgment, explains in distinct 
 ence to only one individual sub- terms what he meant by the term 
 ject ; it sometimes displays itself ^mrtial insanity. [His Lordship 
 with leference to one subject very here read the passage al>ove cited 
 decidedly, and very generally, per- in the text, and then continued :] 
 haps, with reference to other sub- I think, therefore, the learned 
 jects.' All that the learned judge judge has sufficiently explained 
 meant to convey was, that it was what he meant by the occasional 
 no objection to the imputation of use of the term fartial insanity ; 
 unsoundness, that it manifested and with the explanation he has 
 itself only, or principally, with re- thus in terms given, and with the 
 ference to one particular question whole of his argument, and the 
 or one particular jjerson : and he illustrations he has used, and the 
 illustrates his position by a variety cases to which he has referred in 
 of cases, some of them of public support of that argument, I con- 
 notoriety and known to us all. fess I entirely agree."— 5 Russ. 
 This construction does not rest on Chanc. Cas. 166 — 167. 
 any general reasoning, because, (to) 6 Moo. P. C. 341. 
 for the purpose of avoiding mis- ■,
 
 28 Of the Capacity to make a Will. [Pt. i. Bk. ii. 
 
 himself with the utmost propriety (n). The recent case, 
 however, of Banks v. Goodfellow (o) seems to establish that 
 partial unsoundness not affecting the general faculties and not 
 operating on the mind of a testator in regard to testamentary- 
 disposition will not he sufficient to deprive a person of the 
 power of disposing of his property. But just as partial 
 insanity does not necessarily negative testamentary capacity 
 so a man may he capable of transacting business of a 
 complicated and important kind, involving the exercise of 
 considerable powers of intellect, and yet may be the subject 
 of delusions so as to be unfit to make a Will. The result 
 would seem to be that a person subject to delusions may 
 make a valid "Will if the delusions under which he labours 
 be such that they could not reasonably be supposed to have 
 affected the dispositions made by the Will (p). 
 
 The following observations of Sir John Nicholl, made in 
 the course of his judgment in Dew v. Clark, relating to the 
 proper test of the absence or prfisence of insanity, are so 
 important and valuable, that it may be expedient to present 
 them in the very words in which they have been reported (pp). 
 
 Criterion of " The first point for consideration, and which should be 
 insanity. .. ., „ . -i n -i ■ t ■ 
 
 distmctly ascertamed, as tar as it can be fixed, is, what is 
 
 the test and criterion of unsound mind, and where eccen- 
 tricity or caprice ends, and derangement commences. De- 
 rangement assumes a thousand different shapes as various as 
 the shades of human character. It shows itself in forms 
 very dissimilar both in character and in degree. It exists 
 in all imaginable varieties, from the frantic maniac chained 
 down to the floor, to the person apparently rational on all 
 subjects and in all transactions save one ; and whose dis- 
 order, though latently perverting the mind, yet will not be 
 called forth except under particular circumstances, and will 
 
 (n) Fowlis r. Davidson, 6 Notes in Bougliton v. Knight, L. E. 3 P. 
 
 of Cas. 473, 474, by Sir H. Jenner & D. 64. 
 
 Fust ; Smith v. Tebbitt, L. R. 1 (p) Smee r. Sraee, 5 P. D. 84. 
 
 P. & D. 398. ( pp) Dr. Haggard's Report, from 
 
 (o) L. R. 5 Q. B. 549, followed the judge's notes, pp. 5—10.
 
 Cli. I. § I.J Of the Co^iyacity to maize a Will — Lunatics. 29 
 
 show itself only occasionally. We have heard of persons at 
 large in Bedlam, acting as servants in the institution, showing 
 other maniacs and describing their cases, yet being them- 
 selves essentially mad. We have heard of the person who 
 fancied himself Duke of Hexham, yet acted as agent and 
 steward to his own committee. It is further observable, 
 that persons under disorder of mind have yet the power of 
 restriction from respect and awe. Both towards their keepers 
 and towards others in different relations they wdll control 
 themselves. There have been instances of extraordinary 
 cunning in this respect, so much as even to deceive the 
 medical and other attendants, by persons who, on effecting 
 their purpose, have immediately shown that their disorder 
 existed undiminished. 
 
 "It has probably happened to most persons who have 
 made a considerable advance in life, to have had personal 
 opportunities of seeing some of these varieties, and these 
 intermediate cases between' eccentricity and absolute frenzy, 
 — maniacs who though they could talk rationally, and con- 
 duct themselves correctly, and reason rightly, nay, with force 
 and ability, on ordinary subjects, yet on others were in a 
 complete state of delusion, — which delusion no arguments 
 or proofs could remove. In common parlance, it is true, 
 some say a person is mad when he does any strange or absurd 
 act, others do not conceive the term ' madness ' to be properly 
 applied unless the person is frantic. 
 
 "As far as my own observations and experience can direct Absence or 
 me, aided by opinions and statements I have heard expressed delusion th 3 
 in society, guided also by what has occurred in these and in *''^^ test ot 
 
 J ^ <^ J , insanity {q). 
 
 other Courts of justice, or has been laid down by medical 
 and legal writers, the true criterion is — where there is delu- 
 sion of mind there is insanity; that is, when persons believe 
 things to exist which exist only, or at least in that degree 
 exist only, in their own imagination, and of the non-existence 
 
 (7) See Wlieeler v. Alderson, Fust in CliaiaLers v. T]ie Qm^eu's 
 .3 Hag^'. 598. Aec. But see also Proctor, 2 Curt. 448, 449. 
 the okservatioiis of Sir H. Jenner
 
 30 
 
 Of the Capacity to make a Will. [Pt. i. Bk. ii. 
 
 of which neither argument nor proof can convince them, they 
 are of unsound mind : or, as one of the counsel accurately 
 expressed it, ' It is only the belief of facts which no rational 
 person would have believed, that is insane delusion ' (r). 
 This delusion may sometimes exist on one or two particular 
 subjects, though generally there are other concomitant cir- 
 cumstances — such as eccentricitj', irritability, violence, sus- 
 picion, exaggeration, inconsistency, and other marks and 
 symptoms which may tend to confirm the existence of delu- 
 sion and to establish its insane character. 
 
 "Medical writers have laid down the same criterion by 
 which insanity may be known. Dr. Battle, in his celebrated 
 Treatise on Madness (s), thus expresses it. After stating 
 what is not properly madness, though often accompanying 
 it, namely, either too lively or too languid a perception of 
 things, he proceeds : — 
 
 " ' But rj'rti species alias veris cajnet conimotiis hahehitur ; 
 and this by ail mankind, as well as the physician ; no one 
 ever doubting whether the perception of objects not really 
 existing, or not really corresponding to the senses, be a 
 certain sign of madness: therefore "deluded imagination,'' 
 is not only an indisputable, but an essential character of 
 madness ' (t). 
 
 "Deluded imagination, then, is insanity. 
 
 " Mr. Locke, who practised for a short time as a physician, 
 
 (r) This passage Avas cited Avitli tioii of the patient. " The frame, 
 approhation by Sir H. Jenner Fust or state of mind," saitl his Lord- 
 in Frere v. Peacocke, 1 Eobert. 444. ship, " which, indicates his inca- 
 But Lord Brougham remarked, in pacity to struggle against such an 
 AYaring r. AYaring, 6 Moo. P. C. errone'ous belief constitutes an 
 3.53, that, perhaps, in a strictly 'imsound frame of mind.'" See 
 loc'ical view, the definition is liable further as to the ditferent kinds of 
 to one exception, or at least, ex- insane delusion, the judgment of 
 posed to one criticism, viz., that it Dr. Lushington, in Prineep v. Dyce 
 gives a consequence for a defini- Sombre, 10 Moo. P. C. 232, 247 ; 
 tion, and that it might be more S, C, Dea. and Sw. 22. 
 strictly accurate to term "delusion" (s) London, 1758. 
 tlie belief of things as realities, (t) S. 1, p. 5. 
 which exist onlv in the imagina-
 
 Ch. I. § I.] Of the Capacity to make a Will— Lunatics. 31 
 
 though more distinguished as a philosopher, thus expresses 
 himself in his highly esteemed work on the Human Under- 
 standing : ' Madmen having joined togethei* some ideas very 
 wrongly, mistake them for truths. — By the violence of their 
 imaginations, having taken their fancies for realities, tliey 
 make right deductions from them.' Hence it comes to pass, 
 that a man who is of a right understanding in all other 
 things, may, in one particular, be as frantic as any in 
 Bedlam. — * Madmen put wrong ideas together, and so make 
 wrong propositions, but argue and reason right from 
 them' {u). 
 
 "Here again, the putting wrong ideas together, mis- 
 taking them for truths, and mistaking fancies for realities, 
 is Mr. Locke's definition of madness ; and he states, that 
 insane persons will reason rightly at times, and yet still 
 are essentially mad : and that they may be mad on one 
 particular subject only " {x). 
 
 Although in the case of a person who is sometimes sane, Case of a Will 
 and sometimes insane, if there is no direct proof of his state foiu""^ '"^' 
 when he wrote his Will, and there be in it a mixture oi' 
 wisdom and folly, it is to be presumed that the same was 
 made during the testator's phrenzy, even if there be but one 
 word " sounding to folly " {y) ; yet the Court of Probate will 
 not at once reject an allegation propounding a Will, whicli 
 even strongly "sounds to folly" when facts are pleaded, 
 showing that the deceased up to his death conducted himself 
 in the ordinary concerns of life as a sane man [z). 
 
 In a case where a woman made a Will, under a power A Will may be 
 authorising her to dispose of certain property by a Will tiIough"both ^^ 
 attested by two witnesses, the Will was pronounced for, *''.: ^^westing 
 
 '' ^ witnesses 
 
 [u) Locke on the Human Under- nientary capacity. See also Austt-n 
 
 standing, Book 2, c. 11, s. 13. v. Graham, 8 Moo. P. C. 49?, ; 
 
 [x) See the judgment of Sir H. Boughton v. Knight, L. E. 3 P. tsi 
 
 Jenner Fust in Mudway v. Croft, D. 64. 
 
 3 Curt. 671, as to the criteria by {y) Swinb. Pt. 2, s. 3, pi. If.. 
 
 which to test and ascertain whether See In the goods of Watts, 1 Curt. 
 
 natural or innate eccentricity lias 594. 
 
 exceeded tlie bounds of legal testa- [z) Arbery v. Ashe, 1 Hnfg. 214.
 
 32 
 
 Of Vac Capacity to make a Will. 
 
 [Pt. 1. Bk. II. 
 
 depose to tlie 
 testator's in- 
 capacity, 
 because the 
 Court disbe- 
 lieved them on 
 other evidence. 
 
 Effect of com- 
 mission of 
 lunacy. 
 
 Inofficious 
 Testaments 
 
 though both the ^Yitnesbcs deposed to the deceased's inca- 
 pacity (a). 
 
 The presumption of law is, that a verdict of a jury under 
 a commission of lunacy, that the party, the subject of the 
 commission, is of unsound mind, is well founded, and if the 
 commission remained unsuperseded, that the party continued 
 a lunatic to his death. Such presumption, however, may be 
 rebutted and displaced by positive proof of entire recover}^ 
 or possession of a lucid interval when a testamentary instru- 
 ment was executed (6). 
 
 By the Koman law testaments might be set aside as being 
 inoj/iciosa, deficient in natural duty, if they totally passed by 
 (without assigning a true and sufficient reason) any of the 
 children of the testator : though if the child had any legacy, 
 however small, it was a proof the testator had not lost his 
 memory or his reason, which otherwise the law presumed. 
 But the law of England makes no such constrained suppo- 
 sitions of forgetfulness or insanity ; and therefore, though 
 the heir or next of kin be totally omitted, it admits no querela 
 inofficiosa to set aside such testament (c). The modern doc- 
 trine requires only that there should be satisfactory proof 
 of some kind of the testator's knowledge and approval of the 
 contents of the ^Yill (d). 
 
 Persons who 
 from old age 
 or other caus-es 
 Lave outlived 
 their under- 
 stand ing. 
 
 Besides the two classes of persons 7ion compotes mentis 
 already mentioned, viz., idiots and lunatics. Lord Coke 
 mentions two more classes, viz., those who were of good 
 and sound memory, and by the visitation of God have lost 
 it ; and those who have become non compotes by their oami 
 act, as drunkards (e). In the former of these two latter 
 classes must be reckoned those who, from sickness, grief, 
 
 {a) Le Breton v. Fletcher, 2 Moo. P. C. 232, 239, 244, 245. 
 
 llagg. 558, S. P. in K. B., Lowe 
 V. Jolliffe, 1 W. Bl. 365. See 
 Starnes v. Marten, 1 Curt. 294 ; 
 •post, § 11. 
 
 [h) Prinsep v. Dyce Sombre, 10 
 
 (c) 2 Black. Comm. 503. Wrench 
 f. Murray, 3 Curt. 623. 
 
 (fZ) See fast, Pt. i. Bk. iv. Ch. ii. 
 §5. 
 
 (e) 4 Co. 124,6.
 
 Cli. I. § I.] Of the Capacity to make a Will — Lunatics, 33 
 
 accident, or old age, have lost their reason, who are not like 
 those classed hy Lord Coke, as " lunatici,'' sometimes having 
 their understanding and sometimes not : but whose under- 
 standings are defunct ; who have survived the period that 
 Providence has assigned to the stability of their minds (/). 
 
 But old age alone does not deprive a man of the capacity 
 of making a testament (r/) ; for a man may freely make his 
 testament how old soever he be ; since it is not the integrity 
 of the body, but of the mind, that is requisite in testaments. 
 Yet if a man in his old age becomes a very child again in his 
 understanding, or rather in the want thereof, or by reason of 
 extreme old age, or other infirmity, he is become so forgetful 
 that he knows not his own name, he is then no more fit to 
 make his testament than a natural fool, or a child, or lunatic 
 person (h). 
 
 "It is not necessary," observed Lord Chief Baron Eyre, Weakness of 
 in Mountain v. Bennett (t), " to go so far as to make a man ^' 
 
 absolutely insane, so as to be an object for a commission of 
 lunacy, in order to determine the question, whether he was 
 of a sound and disposing mind, memory and understanding. 
 A man perhaps may not be insane, and yet not equal to the 
 important act of disposing of his property by Will." 
 
 So it was agreed by the judges in Combe's case (k), that 
 sane memory for the making a Will is not at all times when 
 
 (/) Ejc ■parte Cranmer, 12 Ves. simply is, whether the mental 
 
 452, by Lord Erskine. Sherwood faculties retain sufficiejit strength 
 
 V. Sanderson, 19 Ves. 283. See fully to comprehend the testanien- 
 
 also Eidgway v. Darwin, 8 Ves. tary act about to be done. But 
 
 66. when lunacy or unsoundness of 
 
 (ry) Swinb. Pt. 2, s. 5, pi. 1. mind has previously existed, the 
 Godolph. Pt. 1, c. 8, s. 4. Bird v. investigation is of a totally differ- 
 Bird, 2 Hagg. 142. Lewis v. Pead, ent character : per Dr. Lushing- 
 1 Ves. Jun. 19. Extreme old age ton, in Prinsep v. Dyce Sombre, 
 raises some doubt of capacity, but 10 Moo. P. C. 278. Banks v. Good- 
 only so far as to excite the vigi- fellow, L. R. 5 Q. B. 549. 
 lance of the Court : Kindleside v. (h) Swinb. uhi supra. Godolph. 
 Harrison, 2 Phillim. 461, 462. And uhi supra. 
 in cases where no insanity has (i) 1 Cox, 356. 
 either existed or been supposed to (/c) Moor, 759. Vin. Abr. tit. 
 exist, the inquiry as to capacity Devise, A. 22, 4 Burn, E. L. 49. 
 W.E. — YOL. I. D
 
 .34 Of the Capacity to make a Will. [Pt. i. Bk. ii. 
 
 tlic party can speak " yea or no," or had life in liim, nor 
 when he can answer to anything with sense : but he ought 
 to have judgment to discern, and to be of perfect memory. 
 And it is said by Lord Coke, in the Marquis of Winchester's 
 case (/), that it is not sufficient that the testator be of 
 memory when he makes his "Will to answer famihar and 
 usual questions, but he ought to have a disposing memory 
 so as to be able to make a disposition of his property with 
 understanding and reason ; and that is such a memory which 
 the law calls sane and perfect memory (??(). So it is laid 
 down by Erskine, J., in delivering the opinion of the Judicial 
 Committee of the Privy Council, in Haricood v. Baker (n), 
 that in order to constitute a sound disposing mind the tes- 
 tator must not only be able to understand that he is by his 
 Will giving the whole of his property to the objects of his 
 regard, but must also have capacity to comprehend the extent 
 of his property and the nature of the claims of others whom, 
 by his Will, he is excluding from participation in that pro- 
 perty (o). 
 
 On the other hand it must be observed, that mere weakness 
 of understanding is no objection to a man's disposing of his 
 estate by Will ; for Courts cannot measure the size of people's 
 understandings and capacities ; nor examine into the wisdom 
 or prudence of men in disposing of their estates (j)). "If a 
 man," says Swinburne {q), " be of a mean understanding 
 
 (/) G Co. 23, a. 4 Burn, E. L. imbecility of mind will be fouml. 
 
 49. For an instance, wliere weakness 
 
 (r;/ j See further, Herbert v. of mind and forgetfulness will not 
 
 Lowns, 1 Chanc. Eep. 24. Dyer, constitute incapacity, see Constable 
 
 27, a, in marg. Ball r. Mannin, 3 v. Tufnell, 4 Hagg. 465 : affirmed 
 
 Bligh, N. S. 1. See also the judg- on appeal, 3 Knapp, 122. 
 
 nient of Sir John NichoU, in (n) 3 Moo. P. C. C. 282, 290. 
 
 Marsh v. Tyrrell, 2 Hagg. 122, as (o) See also Sefton v. Hopwood, 
 
 to the rules by which the compe- 1 Fost. & F. 578. Swinfen v. Swin- 
 
 tency of the mind must be judged ; fen, 1 Fost. & F. 584. 
 
 and see further the judgment of (/)) Osmondr.Fitzroy, 3P.Wms. 
 
 the same learned judge in Ingram 129. 
 
 V. Wyatt, 1 Hagg. 401, where some {q) Pt. 2, s. 4, pi. 3. 
 valuable remarks on the subject of
 
 Oh. I. § I.] Of the Capacitij to uKikr a Will — Lunatics. 35 
 
 (neither of the wise sort or the foolish), but indifferent as 
 it were, betwixt a wise man and a fool, yea, though he rather 
 incline to the foolish sort, so that for his dull capacity 
 he might worthily be termed (frossum caput, a dull pate, 
 or a dunce, such a one is not prohibited from making his 
 testament " (r). 
 
 As to the last of the classes of 7ion compotes mentioned by rersons 
 Lord Coke; ''He that is overcome by drink," says Swin- 
 burne (s), " during the time of his drunkenness is compared 
 to a madman {t), and therefore, if he make his testament at 
 that time, it is void in law ; which is to be understood, when 
 he is so excessively drunk, that he is utterly deprived of the 
 use of reason and understanding ; otherwise, albeit his under- 
 standing is obscured, and his memory troubled, yet he may 
 make his testament, being in that case"(M). In a case 
 where it appeared that the testator was a person not properly 
 insane or deranged, but habitually addicted to the use of iiaLitual 
 spirituous liquors, under the actual excitement of which he 
 talked and acted in most respects like a madman, it was held 
 that as the testator was not under the excitement of liquor, 
 he was not to be considered as insane at the time of making 
 his Will ; and the Will itself was accordingly established (,r), 
 and the Court pointed out the difterence between the present 
 case and one of actual insanity ; inasmuch as insanity may 
 often be l<itent, whereas there can scarcely be such a thing 
 as latent ebriety; and consequently, in a case like the one 
 under consideration, all which requires to be shown is, the 
 absence of the excitement at the time of the act done ; or at 
 least the absence of excitement in any such degree as would 
 vitiate the act done (y). 
 
 (r) See also Harrod v. Harrod, 1 (x) Ayrey v. Hill, 2 Add. 206. 
 
 Kay & J. 4. See also Billingliurst v. Vickers, 1 
 
 (s) Pt. 2, s. 6. Phillim. 191. Handley v. Staci-y, 
 
 (0 See Gore v. Gibson, 13 M. & 1 Fost. & F. 574. 
 
 W. G23. {y) 2 Add. 2 1 0. See also Wlieeler 
 
 {u) See also Godolpb. Pt. 1, c. 8, v. Alderson, 3 Hagg. 602, 608. In 
 
 3. 5. the case of Rex v. Wright, 2 Burr 
 
 D 2
 
 86 
 
 Of the Capacity to make a Will [Pt. i. Bk. ii 
 
 A \Yill defacea 
 by the testator 
 while 11011 
 compos. 
 
 Onus of show- 
 ing sanity at 
 the time of 
 mutilation. 
 
 Insanity super- 
 vening between 
 the instruc- 
 tions for a 
 Will and its 
 execution. 
 
 Effect of, 
 before the 
 ^Yills Act. 
 
 Letters written 
 to testator not 
 evidence of his 
 .sanity. 
 
 If a Will be executed by a testator of sound mind at the 
 time of execution, and be afterwards wholly or partially de- 
 faced by him, while of unsound mind, such Will is to be 
 pronounced for as it existed in its integral state, that being 
 ascertainable (.?). Accordingly, where a testatrix having 
 duly executed her Will, subsequently became insane, and 
 shortly before her death, it was discovered that the Will had 
 been mutilated by her ; but it was proved to have been in 
 her custody for a short time subsequent as well as prior to 
 her insanity : it was held by Sir C. Cresswell that the onus 
 of showing her to have been of sound mind when she muti- 
 lated it was on the party alleging the revocation ((f)- 
 
 Before the Wills Act when signature was not essential 
 to the execution of a Will questions used to arise as to 
 mental incapacity supervening between instructions for a 
 Will and its execution, and it was held that part of a Will 
 might be established and part held not entitled to probate if 
 actual incapacity were shown at the time of the execution of 
 the latter part (h). 
 
 It was decided by the House of Lords in the great case of 
 Doe dem. Tatham v. Wright (c), that letters written to the 
 testator, and not acted upon, or indorsed, or answered by 
 him, are not evidence of his sanity. 
 
 SECTION II. 
 
 Persons IncapaUe from want of Liberty or Free-Will. 
 
 Such persons as are intestable for want of liberty or free- 
 dom of will are, by the civil law, of various kinds, as 
 
 1099, a rule was obtained to show 
 cause why a criminal information 
 could not be exhibited against 
 certain persons, for a misdemea- 
 nour in using artifices, in order to 
 obtain a Will from a woman ad- 
 dicted to, and almost destroyed by, 
 liquor. 
 
 "74 In the goods of Brand, 3 Hagg. 
 754. 
 
 (a) Harris v. Berrall, 1 Sw. & Tr. 
 153. 
 
 (b) Billinghurst v. Tickers, 1 
 Phil. 187 ; Wood r. Wood, ib. 
 357. 
 
 (c) 4 Bing. N. C. 489. See Rose. 
 
 (a) Scruby v. Fordham, 1 Add. Evid. 14th edition, 973.
 
 Cli. I. § II.] Force — Fear — Fraud. 37 
 
 prisoners, captives, and the like {<!). But the hiw of England 
 does not make such persons absolutely intestable, but only 
 leaves it to the discretion of the Court to judge upon the 
 consideration of their particular circumstances of duress, 
 whether or no such persons could be supposed to have 
 liherum anhmim testandi (e). 
 
 If it can be demonstrated that actual force was used to Wi'l obtained 
 compel the testator to make the Will, there can be no doubt, 
 that although all formalities have been complied with, and 
 the party perfectly in his senses, yet such a Will can never 
 stand (/), 
 
 So, if there were, at the time of bequeathing, a fear upon by fear: 
 the testator, it could not be, as it ought, libera voluntas (g). 
 Yet it must be understood, that "it is not every fear, or a 
 vain fear that will have the effect of annulling the Will ; 
 but a just fear, that is, such as that indeed without it the 
 testator had not made his testament at all, at least not in 
 that manner (li). A vain fear is not enough to make a 
 testament void ; but it must be such a fear as the law 
 intends when it expresses it by a fear that may cadere in 
 constantem viriuu (i) : as the fear of death, or of bodily hurt, 
 or of imprisonment, or of loss of all or most part of one's 
 goods, or the like {k) : whereof no certain rule can be de- 
 livered, but it is left to the discretion of the judge, who 
 ought not only to consider the quality of the threatenings, 
 but also the persons as well threatening as threatened ; in the 
 person threatening, his power and disposition ; in the person 
 threatened, the sex, age, courage, pusillanimity and the 
 like " (0- 
 
 Fraud is no less detestable in law than open force. Where- l^j' fraud : 
 
 {(l) Swinb. Pt. 2, s. 8. Godolph. (A) Goaolpli. Pt. 3, c. 25, s. 8. 
 
 Pt. 1, c. 9. (i) Godolph. Pt. 3, c. 25, s. 8. 
 
 (e) 2 Black. Coinm. 497. Swinb. Pt. 7, s. 2, pi. 7. 
 
 (/) Mountain v. Bennett, 1 Cox, (k) Swinb. Pt. 7, s. 2, pi. 7. 
 
 355, by Eyre, C.B. (/) Swinb. Pt. 7, s. 2, pi. 7. See 
 
 ((j) Godolph. Pt. 3, c. 25, s. 8. Nelson v. Oldfield, 2 Vein. 76. 
 Swinb. Pt. 7, s. 2, pi, 1.
 
 38 
 
 Of the Capacity to make a Will [Pt. i. Bk. ii. 
 
 fort', ^vllen the testator is circumvented by fraud, the testa- 
 ment is of no more force than if he were constrained by 
 fear (//;)• "With regard to what deceit shall annul a testament 
 on the ground of fraud, as in the case of a Will made under 
 fear, it is left to the discretion of the judge, comparing the 
 deceit to the capacity or understanding of the person deceived 
 to discern whether it be such as may overthrow the testa- 
 ment or not (n). If a part of a "Will has been obtained by 
 fraud, probate, it should seem, ought to be refused as to that 
 part, and granted as to the rest (o). 
 
 It was settled by the case of Allen v. McPherson (p) that 
 a AVill, whether of personal or real property, could not be set 
 aside in equity on the ground that the Will was obtained by 
 fraud and imposition ; because a Will of personal estate might 
 be annulled for fraud in the Court of Probate, and a Will of 
 real estate might be set aside at law ; for in such cases, as 
 the aniintis testatidi is wanting, it cannot be considered as a 
 Will (7). 
 Yy iuiportu- If a man (said Eolle, C.J., at a trial at bar) makes a Will 
 
 in his sickness, by the over-importunity of his Wife, to the 
 
 (m) Swinb. Pt. 7, s. 3, pi. 1. jurisdiction to relieve against fraud 
 
 Fraud and imposition upon weak- in obtaining Wills, as in Maundy 
 
 ness is a sufficient ground to set v. Maundy, 1 Ch. Rep, 123 ; in 
 
 aside a Will of real, much more of otlier cases, disclaiming such juris- 
 
 personal estate, though such weak- diction, though the fraud was gross 
 
 ness is not sufficient to ground a and palpable, as in Roberts v. 
 
 commission of lunacy : By Lord Wynn, 1 Ch. Rep. 236 ; and in 
 
 Hard wicke, in Lord Donegal's case, other cases, steering a middle 
 
 2 Ves. Sen. 408. course, by declaring the party who 
 
 {a) Swinb. Pt. 7, s. 3, pi. 3. See practised the fraud a trustee for 
 
 also the cases cited by Lord Lynd- the party prejudiced by it : Her- 
 
 hurst, in Allen v. McPherson, 1 H. bert v. Lowns, 1 Chanc. Rep. 22. 
 of L. 207, 208, of Wills obtained (q) As to how far the jurisdiction 
 
 by false representations. of the Probate Division is exclusive 
 
 (o) Allen r. McPherson, 1 H. of in respect of the grant or revocation 
 
 L. 19L Trimlestown r. D'Alton, f)f probate, see post Pt. i. Bk. iv. 
 
 1 Dow, N. S., stated post, p. 4L Ch. i. § i. The Chancery Division 
 
 (jo) 1 H. L. 19L In some has, since the Judicature Act, com- 
 
 earlier cases we find the Court of plete jurisdiction to establish or 
 
 Chancery distincth asserting its set aside a Will of real property. 
 
 Hity
 
 Oh. I. § II.] litiportunity — Influence. 39 
 
 end lie may be quiet, this shall be said to be a Will made 
 by constraint, and shall not be a good Will (r). 
 
 Importunity, in its correct legal acceptation, must bo in 
 such a degree as to take away from the testator free agency ; 
 it must be such importunity as he is too weak to resist ; such 
 as will render the act no longer the act of the deceased ; not 
 the free act of a capable testator ; in order to invalidate the 
 instrument {s). 
 
 A Will made by interrogatories is valid : but undoubtedly 
 when a Will is so made, the Court must be more on its guard 
 against importunity, more jealous of capacity, and more strict 
 in requiring proof of spontaneity and volition than it would 
 be in an ordinary case {t). 
 
 With respect to a Will obtained by influence, it is not un- by iadueuce. 
 lawful for a man, by honest intercession and persuasion, to 
 procure a Will in favour of himself or another person («) : 
 Neither is it to induce the testator, by fair and flattering 
 speeches {x) : for though persuasion may be employed to 
 influence the dispositions in a Will, this does not amount to 
 influence in the legal sense ; and whether or not a capricious 
 partiality has been shown, the Court will not inquire. But 
 where persuasion is used to a testator on his death-bed, 
 when even a word distracts him, it may amount to force and 
 inspiring fear (y). 
 
 (r) Hacker r. Newborn, Styles, he given at the commencement of 
 
 427. See ali^o Moneypenny v. suck a transaction, provided it be 
 
 Brown, 8 Vin. Abr. 167, tit. Devise proved that the deceased coni- 
 
 (Z 2), pi. 7. Lamkin v. Babb, 1 pletely understood, adopted and 
 
 Cas. temp. Leo, 1. sanctioned the disposition proposed 
 
 (s) By Sir John Nicholl, in to him, and that the instrument 
 
 Kindleside v. Harrison, 2 Phillim. itself embodied such disposition : 
 
 551, 552. By Sir J. Nicholl, in Constable v. 
 
 (t) Green v. Skipworth, 1 l^hil- Tufnell, 4Hagg. 477 ; affirmed on 
 
 lim. 58. appeal, 3 Knapp, 122. 
 
 (w) Swinb. Ft. 2, s. 4, pi. 1. It (x) Swinb. Pt. 7, s. 4, pi. I. 
 
 is no part of the testamentary law (ij) By Sir Wm. Wynne, in 
 
 of this country, that the making a Dickinson v. Moss, Prerog. T. 1790. 
 
 Will mwsionyirt«ie with a testator ; MS. 4 Burn, 58, Tyrwhitt's Edit. 
 nor is it required that proof should
 
 ^0. Of the Capacity to male a Will [Pt. i. Bk. ii. 
 
 The sort of influence which will invalidate a Will is thus 
 described by Eyre, C.B., in Mountain v. Bennett (z) : " There 
 is another ground, which though not so distinct as that of 
 actual force, nor so easy to be proved, yet if it should be made 
 out, would certainly destroy the Will ; that is, if a dominion 
 was acquired by any person over a mind of sufficient sanity to 
 general jmrposes, and of sufficient soundness and discretion to 
 regulate his affairs in general; yet if such a dominion or 
 influence were acquired over him as to prevent the exercise of 
 such discretion, it would be equally inconsistent with the idea 
 of a disposing mind." 
 
 But the influence to vitiate an act must amount to force and 
 coercion, destroying free agency ; it must not be the influence 
 of afi'ection and attachment ; it must not be the mere desire 
 of gratifying the wishes of another, for that would be a very 
 strong ground in support of a testamentary act ; further, there 
 must be proof that the act was obtained by this coercion ; by 
 importunity which could not be resisted ; that it was done 
 merely for the sake of peace ; so that the motive was tanta- 
 mount to force and fear {a). 
 
 In two important cases, in the Prerogative Court, Wills 
 made by persons of sufficient capacity, but of weak minds, 
 have been set aside on the ground of improper influence. 
 The Will, in one of these cases, was made in favour of the 
 attorney and agent of the testator (/>), in the other, by a wife 
 
 (;i) 1 Cox, 355. 94. The judgment of Sir J. NiclioU 
 
 (a) Williams v. Goude, 1 Hagg. in this celebrated case was re- 
 
 581. Constable v. Tufnell, 4 Hagg. versed by the Delegates ; 3 Hagg. 
 
 485. Sefton v. Hopwood, 1 Fost. 466 : not, however, on any point 
 
 & F. 578. Lovett v. Lovett, Ibid. of lau', but on a view of the e\'i- 
 
 581. Hall V. Hall, L. R. 1 P. & dence of the cause. Tlie correct- 
 
 D. 481. As to undue influence, ness of Sir- J. Nicholl's judgment, 
 
 dependent on religious feelings, so far as regards his exposition of 
 
 see Norton v. Relly, 2 Eden. 286. the law on the subject of improper 
 
 Huguenin v. Baseley, 14 Ves. 273. influence, was recognised by the 
 
 Parfitt V. Lawless, L. R. 2 P. & D. Judicial Committee of the Privy 
 
 462. Council in the case of Cockraft r. 
 
 {h) Ingram v. Wyatt, 1 Hagg. Rawles, 4 Xotes of Cas. 237.
 
 Cli. I. § II.] Imj^ortuniti/ — Injiucnce. 41 
 
 in favour of her husband (c). And in another case in the 
 House of Lords (d), on an appeal from the Irish Chancery, 
 it was hekl, that ^Yhere undue influence is exercised over the 
 mind of the testator in making his Will, the provisions in the 
 Will, in favour of the person exercising that influence, are 
 void ; but the Will may be good, as far as respects other 
 parties ; so that a Will may be valid as to some parts, and 
 invalid as to others ; may be good as to one party, and bad as 
 to another (c). 
 
 The subject of undue influence received full consideration 
 in a case in the House of Lords (/), on which occasion Lord 
 Cranworth made the following observations : " Li a popular 
 sense, we often speak of a person exercising undue influence 
 over another, when the influence certainl}^ is not of a nature 
 which would invalidate a Will. A young man is often led 
 into dissipation by following the example of a companion of 
 riper years, to whom he looks up, and who leads him to 
 consider habits of dissipation as venial, and perhaps even 
 creditable ; the companion is then correctly said to exercise 
 an undue influence. But if in these circumstances the young 
 man, influenced by his regard for the person who has thus 
 led him astray, were to make a Will and leave to him 
 everything he possessed, such a Will certainly could not be 
 impeached on the ground of undue influence. Nor would the 
 case be altered merely because the companion had urged, or 
 even importuned, the young man so to dispose of his property: 
 
 (c) Marsh v. Tyrrel, 2 Hagg. 84. tremely weak state, nine days 
 
 In tliis case there was an appeal to before death, by the active agency 
 
 the Delegates ; but the case was of the husband, the sole executor 
 
 afterwards compromised ; 3 Hagg. and universal legatee, wholly de- 
 
 471. parted from a former Will, delibe- 
 
 {(l) Trimlestown v. D'Alton, 1 rately made a few months before, 
 
 Pow (New Series), 85. the presumption was strong against 
 
 (e) See further, on the subject the act ; and the evidence not being 
 
 of influence, Mynn v. Robinson, 2 satisfactory, the Will was pro- 
 
 Hagg. 179 ; in which case Sir nounced against, and the husband 
 
 .John Nicholl held that when the condemned in the costs. 
 
 Will of a married woman, ob- (/) Boyse v. Rossborough, 6 H. 
 
 tained while she was in an ex- of L. G.
 
 42 Oftlte Capacity to make a Will. [Pt. i. Bk. il. 
 
 Provided only, that in making such a Will, the young man 
 was really carrying into effect his own intention, formed with- 
 out either coercion or fraud. I must further remark, that all 
 the difficulties of defining the point at which influence exerted 
 over the mind of a testator becomes so pressing as to be pro- 
 perly described as coercion are greatly enhanced when the 
 question is one between husband and wife. The relation con- 
 stituted by marriage is of a nature which makes it as difficult 
 to inquire, as it would be impolitic to permit inquiry, into all 
 which may have passed in the intimate union of affections 
 and interests which it is the paramount purpose of that 
 connection to cherish." 
 
 " In order therefore, to have something to guide us in our 
 inquiries on this very difficult subject, I am prepared to say 
 that influence, in order to be undue within the meaning of any 
 rule of law which would make it sufficient to vitiate a AVill, 
 must be an influence exercised either by coercion or by fraud. 
 In the interpretation, indeed, of these words some latitude 
 must be allowed. In order to come to the conclusion that a 
 Will has been obtained by coercion, it is not necessary to es- 
 tablish that actual violence has been used, or even threatened. 
 The conduct of a person in vigorous health towards one feeble 
 in body, even though not unsound in mind, may be such as to 
 excite terror and make him execute as his Will an instrument 
 which, if he had been free from such influence, he would not 
 have executed. Imaginary terrors may have been created 
 sufficient to deprive him of free agency; a Will thus made 
 may possibly be described as obtained by coercion. So as to 
 fraud, if a wife, by falsehood, raises prejudices in the mind of 
 her husband against those who would be the natural objects of 
 his bounty, and by contrivance keeps him from intercourse 
 with his relatives, to the end that these impressions which she 
 knows be had thus formed to their disadvantage may never be 
 removed ; such contrivance may, perhaps, be equivalent to 
 positive fraud, and may render invalid any Will executed under 
 false impressions thus kept alive {g). It is, however, extremely 
 
 {(j) Pee Ace. Allen v. McPherson, 1 H. of L. 207, per Lord Lynd-
 
 Ch. I. § II.] Importuuliy — Injiuence. 
 
 difficult to state in the abstract Avhat acts will constitute 
 undue influence in questions of this nature. It is sufficient 
 to say, that, allowing a fair latitude of construction, they must 
 range themselves under one or other of these heads — coercion 
 or fraud." 
 
 After observing, that where it has been proved that a Will 
 has been duly executed by a person of competent under- 
 standing and apparently a free agent, the burthen of proving 
 that it was executed under undue influence is on the party 
 who alleges it, his Lordship thus proceeded : "In order to set 
 aside the Will of a person of sound mind, it is not sufficient 
 to show that the circumstances attending its execution are 
 consistent with the hypothesis of its having been obtained by 
 undue influence : It must be shown that they are inconsistent 
 with a contrary hypothesis. The undue influence must be 
 an influence exercised in relation to the Will itself, not an 
 influence in relation to other matters or transactions. But 
 the principle must not be carried too far. Where a jury sees 
 that, at and near the time when the Will sought to be im- 
 peached was executed, the alleged testator was, in other 
 important transactions, so under the influence of the person 
 benefited by the Will, that as to them he was not a free agent, 
 but was acting under undue control, the circumstances may 
 be such as fairly to warrant the conclusion, even in the ab- 
 sence of evidence bearing directly on the execution of the 
 Will, that in regard to that also the same undue influence was 
 exercised." To be undue influence in the eye of the law 
 there must be coercion. It is only when the will of the 
 person who becomes a testator is coerced into doing that 
 which he or she does not desire to do that it is undue 
 influence igg). 
 
 In the case of gifts or other transactions inter vivos, it 
 
 hurst. White v. White, 2 Sw. & plea of undue influence. 
 
 Tr. 505 ; in which last case Sif C ((jg) Wingrove v. Wingrove, II 
 
 CresSwell held that a fraud of this T. D. 81. 
 
 kind could not he set up under a 
 
 43
 
 u 
 
 Of the Capacity to maJ:e a Will [Pt. i. Bk. ii. 
 
 ^Yills of sea- 
 men : 
 
 made on the 
 same instru- 
 ment with a 
 warrant of at- 
 torney invalid , 
 
 is cousidered by Courts of Equity that the uatural influence 
 which rehations such as those of solicitor and client, guar- 
 dian and ward, physician and patient, tutor and pupil, in- 
 volve, exerted by those who possess it to obtain a benefit 
 for themselves, is an undue influence. Gifts or contracts 
 brought about by it are therefore set aside unless the party 
 benefited by it can show affirmatively that the other party 
 to the transaction was placed in such a position as would 
 enable him to form an absolutely free and unfettered judg- 
 ment (/;). The law regarding Wills is very different from 
 this, and the mere proof of the existence of such a relation is 
 no evidence of undue influence, and the party relying thereon 
 must give some evidence of coercion or dominion exercised 
 over the testator against his will or of coercion so strong 
 that it could not be resisted (i). 
 
 Persons in the sea service are frequently under the pres- 
 sure of urgent wants, and to procure an immediate supply of 
 those wants (such as an outfit, or the like) they will, without 
 thought, comply with almost any condition proposed to them. 
 These temporary necessities have been considered to operate 
 on them as a sort of duress, on the part of those who are to 
 furnish the supply : and it is partly on this consideration, 
 that the policy of the law has been extended to guard the 
 testamentary acts of this class of persons (J). 
 
 By statute 9 & 10 Wm. III. c. 41, s. G (now repealed, but 
 re-enacted) {k), it is provided, " that no Will of any seaman 
 
 (/(.) Archer v. Hudson, 7 Beav. 
 557. 
 
 (i) Parfitt V. Lawless, L. E. 2 P. 
 & D. 462 ; see also Aslnvell v. 
 Lomi, reported in the note there- 
 to. 
 
 ( j) Zachariasi'. CoUis, 3 Phillini. 
 177. 
 
 {h) The Stat. 9 & 10 W. 3, c. 41, 
 s. 6, was repealed and re-enacted 
 by the stat. 55 G. 3, c. 60, s. 4. 
 The latter statute was itself re- 
 pealed by the Stat. 11 G. 4 and 
 
 1 W. 4, c. 20, which last Act pro- 
 vides that no Will of any petty 
 officer, seaman, non-commissioned 
 officer of marines, or marine, shall 
 be deemed good or valid in law, to 
 any intent or purjiose, which shall 
 be contained, printed, or written 
 in the same instrument, paper, or 
 paichment, with a power of attor- 
 ney. A similar enactment is con- 
 tained in Stat. 28 & 29 Vict. c. 72, 
 s. 4, which supersedes 11 G. 4 and 
 1 W. 4, c. 20, now repealed.
 
 oil. I, § II.] Importunity — Lifluence. 45 
 
 contained, printed or written in the same instnunent, paper, 
 or imrchmoit, Kitli a warrant or letter of attorney, shall be 
 good or available in law to any intent or purpose whatsoever." 
 Soon after the passing of this statute, the case of Craig v. 
 Lester was decided upon its construction. There Sir Charles 
 Hedges held, and his sentence was confirmed by the Dele- 
 gates, that the Will was invalid, though executed on a dif- 
 ferent instrument from the power of attorney (Z). This 
 decision, although it may not have gone beyond the spirit of 
 the Act, must, it should seem, be considered as a bold stretch 
 of the words of it. 
 
 The case of Craig v. Lester has been followed by numer- wills of sea- 
 ous others in the Prerogative Court, fully establishing, that ™c"i.it'^'for^'' 
 Wills made by mariners as securities for debts are void. 'l^'A invalid : 
 But neither the statute nor these decisions must be under- 
 stood as making the relation of agent and seaman, or the 
 circumstance of the seaman being indebted to his agent, an 
 absolute defeasance to the Will, so that it could, in no case, 
 be valid. The proper result to be deduced is, that when the 
 relation of agent and seaman exists, there must be clear 
 proof, not only of the subscription of the deceased to the 
 instrument, but also of his knowledge of its nature and 
 effect : that wherever it is executed merely as a security for a 
 debt, it shall not operate as a testamentary disposition of the 
 whole property; but, on the other hand, though there may 
 be a debt, yet if there be satisfactory evidence that the testator 
 intended to dispose of his property by Will, the instrument 
 shall be valid (ni). 
 
 The equity of these statutes cannot be extended beyond Scoi-f, as to 
 the Wills of mariners, so as to invalidate the Wills of other persons. ° 
 persons given to secure debts (n). 
 
 {I) Delegates, lltli June, 1714, Inn. 202, 203, 204. See also 
 
 cited by Sir John Nicholl, in Deardsley v. Fleming, 2 Cas. temp, 
 
 Zacharias v. Collis, 3 Philliiu. Lee, 98. 
 l!^9. (h) Florance v. Florance, 2 Cas. 
 
 (m) Zacharias r. ("'ullis, 3 Phil- temp. Lee, 87,
 
 46 
 
 Of the CajKiciti/ to maha a Will. [Pt. i. Bk. ii. 
 
 Before jiassing 
 of Mairiod 
 Womeu's 
 Property Act 
 feme covert 
 generally iii- 
 capable of 
 making a Will 
 
 Before the passing of the Married Women's Property 
 Act, 1882, 45 & 46 Vict. c. 75, the capacity of a married 
 woman to dispose of her real and personal estate by Will was 
 limited. This statute does not apply to any Will made before 
 1 Jan., 1883. It is therefore necessary to consider the 
 law as applicable to Wills on which the statute cannot 
 operate. A married woman was not only utterly incapable of 
 devisinj]: lands (o) (being excepted out of the Statute of Wills, 
 34 & 35 Hen. VIII. c. 5) (;;), but also she was incapable of 
 makinsf a testament of chattels, without the license of her 
 husband ; and such a Will, being considered a mere nullity, 
 was not admitted to probate in the Court of Probate (q) : 
 For all her personal chattels were absolutely his; and he 
 might dispose of her chattels real, or have them to himself, 
 if he survived her : It would therefore have been extremely 
 inconsistent to have given her a power of defeating that 
 provision of the law, by bequeathing those chattels to 
 another (r). The stat. 1 Vict. c. 26, made no alteration 
 in the law with respect to the testamentary capacity of a 
 feme covert ; for by sect. 8, it was provided and enacted, that 
 " no Will made by anj^ married woman shall be valid, except 
 such a Will as might have been made by a married woman 
 before the passing of this Act." But this section does not 
 exclude the Wills of married women from the operation of 
 the 24th section (s), as to a Will speaking, as to the real and 
 personal estate comprised in it, as if executed immediately 
 
 (r>) Tbisincajiacity to devise real 
 estate does not arise from the hus- 
 band's interest in her property, and 
 consequently cannot be cured by 
 liis renunciation of interest : Dye 
 V. Dye, 13 Q. B. D. 147. 
 
 (jp) Impliedly repealed by M. 
 W. P. A. 1882, in so far as it dis- 
 abled married women from devil- 
 ing lands. 
 
 (g) Steadnian v. Powell, 1 Add. 
 58. Bransby v. Haines, 1 Cas. 
 temp. Lee, 120. Tucker v. Inman, 
 4 M. & Gr. 1076. 
 
 (?•) Andrew Ognel's case, 4 Co. 
 51 h. 2 Black. Comm. 498. 
 
 (s) Noble r. Phelps, L. R. 2 P. 
 & D. 276. See post, Pt. i. Bk. ir. 
 Ch. IV. § II. Pt. III. Bk. III. Cb. 
 
 IV. § VIII.
 
 Ch. I. § II.] Wills of Married Women. 47 
 
 before the testator's death (0, — or of the 27th section, as to a 
 general gift being an execution of a power (n). 
 
 Since the husband had no beneficial interest in the per- except of pro- 
 sonal estate which the wife took in the character of executrix, fhe was^el-'^' 
 and as the laAV permitted her to take upon herself that office, *'*'j^!^ ^.^-f 
 It enabled her, even before the Married Women's Property ^^ executrix. 
 Act, 1882, in exception to the general rule that a married 
 woman could not dispose of property, to make a AYill in this 
 instance, without the consent of her husband ; restricted, 
 however, to those articles to which she was entitled as 
 executrix (./•)• The effect of such an instrument is merely to 
 pass, by a pure right of representation, to the testator or prior 
 owner, such of his personal assets as remained outstanding, 
 and no beneficial interest which the wife might have in any 
 part of them : and with respect to the assets which might 
 have been received by the feme executrix during the marriage, 
 and not disposed of, they immediately became the husband's 
 property, and were not affected by the Will (y) . 
 
 But as the husband could always waive the interest which Husijaini may 
 the law bestowed on him, he might empower the wife to make ^v\{Jr'. Will • 
 a Will to dispose of her personal estate. Thus a husband 
 might assent to his wife's Will, and such assent entitled 
 the wife's executor to claim such articles of her personal 
 
 (t) Thomas v. Jones, 1 De G. J. pertv which she fhenha.s ; and that 
 
 6 Sm. 63. But the 24th sect, does consequently, not withstanding sect. 
 not speak from the death of a 24 of the Wills Act, her Will made 
 married women so as retroactively during coverture is not, unless it is 
 to give effect to her Will made re-executed after she has become 
 during coverture as to property discovert, effectual to dispose of 
 acquired after the death of her property which she acquires after 
 husband : Willock v. Noble, L. E. the coverture has come to an end : 
 
 7 H. L. 580, affirming S. C. L. R. 8 Ee Price, 28 C. D. 709. 
 
 Ch. 778, and this case was held by (u) Thomas v. Jones, 1 De G. 
 
 Pearson J., to be untouched by the J. & S. 63 ; Noble v. Phelps, L. R. 
 
 Married Women's Property Act, 2 P. & D. 276. 
 
 1882, sect. 1 (sub-s. 1), on the (x) Scammell v. Wilkinson, 2 
 
 ground that such sub-section applies East, 552. 
 
 only to a disposition by a married (y) Hodsden v. Lloyd, 2 l>ro. 
 
 •woman during coverture of pro- C. C. 534, 543.
 
 48 
 
 Of the Capacity to male a Will. [Pt. i. Bk. ii. 
 
 he must assent 
 to the particu- 
 lar Will : 
 
 estate, which would have been her husband's as her adminis- 
 trator {z). 
 
 But in order thus to establish the Will, a general assent 
 that the wife might make a Will was not sufficient ; it should 
 be shown that he had consented to the particular Will that 
 she had made (a), and his consent should have been given 
 when it was proved ih). He might, therefore, revoke his 
 consent at any time during his wife's life, or after her death 
 what was suffi- before probate (c). But this consent might be implied from 
 circumstances ; and if after her death he acted upon the Will, 
 or once agreed to it, he was not, it seems, at liberty to retract 
 his assent, and oppose the probate {d). And when the Will was 
 made in pursuance of an express agreement or consent, it was 
 said that a little proof would be sufficient to make out the 
 continuance of the consent after her death {c). 
 
 This assent on the part of the husband was no more than 
 a waiver of his rights as his wife's administrator (/). It 
 therefore could only give validity to the instrument, in the 
 
 cient assent : 
 
 husband's 
 assent only 
 available if he 
 survivefl. 
 
 (;i) Tucker v. Inmaii, 4 M. & Gr. 
 1076. As to wliat such articles 
 are, see i:iost, Pt. ii. Bk. iii. Ch. i. 
 §111. 
 
 (ft) Rex V. Bettesworth, 2 Stra. 
 891. Willockv. Noble, L. R. 7 H. 
 L. 580. 
 
 {})) Henley r. Philips, 2 Atk. 
 47. 
 
 (c) Swinb. Pt. 2, s. 9, pL 10. 4 
 Burn, Ecc. L. 52. Brook v. 
 Turner, 2 Mod. 170. 
 
 {J) Brook V. Turner, ^lbi supra. 
 Accordingly in Maas v. Sheffield, 
 Prerog. M. T., 1845, 4 Notes of 
 Cas. 350, S. C, 1 Robert. 364, it 
 was held by Sir H. Jenner Fust, 
 that if, after the death of the wife, 
 the husband does assent to a parti- 
 cular "Will, he is bound by that 
 assent. Where a wife made a Will, 
 disposing of a fund over -which she 
 had a power, and also of a fund 
 
 over which she had no power, and 
 made her husband her executor, 
 and he proved her Will generally. 
 Sir L. Shadwell, V.-C, held that, 
 as to the latter fund, the Will was 
 valid, as being made ex assensA 
 viri : Ex parte Fane, 16 Sim. 406. 
 And in the case of a Will made by 
 a married woman who appointed 
 her husband an executor and he 
 assented to the making of the Will, 
 and after her death expressed his 
 intention to take probate, but died 
 before so doing without withdraw- 
 ing his consent, it was held that he 
 had assented to the Will : In the 
 goods of Cooper, 6 P. D. 34. 
 
 (f) Brook V. Turner, 2 Mod. 
 17.3. 
 
 (/) In the goods of Smith, 1 
 Sw\ & Tr. 127, per Sir C. Cress- 
 well.
 
 Ch. I. § II.] Wills of Married Women. 49 
 
 event of his being tlie survivor. Hence it follows, that if he 
 died before his wife, her Will was void against her next of 
 kin, so far as it derived its effect from his consent ; and it, 
 therefore, did not pass the right of property bequeathed to 
 her during the coverture {cj). 
 
 If the circumstances took place before the 1st of January, A widow 
 1838 (and consequently the case did not fall within the to 1838, by 
 operation of the stat. 1 Vict. c. 26), a widow after the death I^pEwiir*' 
 of her husband might, without any formal republication, '^^'^'^ during 
 
 _ coverture, or 
 
 recognize her Will made during her coverture ; and the one made when 
 instrument by such a recognition, operated as a new Will Qi). 
 So, a woman by recognition, without any formalities, might 
 republish, during her widowhood, a Will that she had made 
 when a feme sole, and such Will was then equally valid, as to 
 personalty, as if made in her widowhood [i). But by reason 
 of the stat. 1 Vict. c. 26, no such recognition made on or 
 after the 1st January, 1838, can be effectual, notwithstanding 
 the Will itself w"ere made before that date (A). 
 
 Hitherto the subject has only been considered with respect 
 to cases of Wills, which were merely valid by the husband's 
 consent to waive his rights as administrator. But it often Willof/fm« 
 occurred that the Will of a married woman was made in p^rsuanc^e of"^ 
 pursuance of an agreement before marriage, or of an agree- -^greement be- 
 
 _ . 10''^ marriage, 
 
 ment made after marriage, for consideration. Wills of or by virtue 
 married women made under such circumstances, fall under ° ^ ^'"^'^^ ' 
 the same rules as those made by a. feme covert, by virtue of a 
 power {I) ; concerning which it is thought more advisable to 
 refer the reader to the several able Treatises on that subject, 
 than to enlarge this work by a farther discussion of it (;»). 
 
 (fif) Stevens r. Bagwell, 15 Ves. 209. 
 
 156. Price v. Parker, 16 Sim. (t) Long v. Aldred, 3 Add. 48. 
 
 198. Noble v. Phelps, L. R. 2 P. [k) See i^st, Pt. i. Bk. ii. Ch. 
 
 & D. 276—283. Willock v. Noble, iv. 
 
 L. R. 7 H. L. 580. As to the (/) Tucker v. Inman, 4 M. & Gr. 
 
 assent of the husband, see generally 1077. 
 
 Roper on Husband and Wife, 2 ed {m) Sugden on Powers, chap, 
 
 pp. 170—189. 3. As to tlie husband's right to 
 
 Qi) Miller v. Brown, 2 Ilagg. administration, cccterorum, see iJost, 
 
 W.E. — VOL. I. E
 
 50 Of tlie Capacity to male a Will. [Pt. i. Bk. ir. 
 
 not available It must still be remarked, that although a different rule 
 
 vithout pro- /. , ., , • , , i> i 
 
 bate : formerly prevailed, a testamentary appomtment ol such a 
 
 nature by a wife cannot now be made available, either at law 
 or equity, without probate {n), but a Will of a married woman 
 made during coverture under a power and disposing of real 
 property only, is not entitled to probate though there is an 
 appointment of executors (o). Where, however, a married 
 woman having a power of appointment over real property 
 executed the power in favour of herself, and afterwards made 
 a Will directing that a portion of the property should be sold 
 to pay legacies and erect a memorial window, it was held that 
 as she possessed the property as separate estate, and had 
 appointed an executor and directed him to pay the legacies, 
 &c., and as the arrears of rent were part of her personal 
 estate, the Will was entitled to probate {p). And the Court 
 
 probate may q£ Probate would allow such appointment to be proved 
 
 be obtameil ^ -"^ ^ 
 
 ofsnchaV/iii without the husbaud's consent (the probate being limited to 
 
 witbout Lns- .,., , \ ^ ^ i • p 
 
 band s con- the property comprised m the power {q) although its lormer 
 practice was to require the husband's concurrence before it 
 would admit the instrument to probate. Formerly the Court 
 of Probate did not take upon itself to enter with any great 
 minuteness into the construction of the powers, under which 
 Wills of this kind were executed, or as to the due compliance 
 with their conditions. But according to the more modern prac- 
 tice, until the decision of the case oi Barnes v. Vincent (here- 
 after mentioned), the Court of Probate considered itself bound 
 to decide in the first instance, not only whether there was a 
 power authorizing the testamentary act, but also whether the 
 power had been duly executed, before it gave the instrument 
 the sanction of its seal (r). Yet if the Court felt any real 
 
 Pt. I. Bk. IV. Ch. II. § VII. ; Bk. v. (p) B^o^^^r^igg v. Pike, 7 P. D. 
 
 Ch. II. § I. 61. And see In the goods of 
 
 (n) Boss V. Ewer, 3 Atk. 160. Hornbuckle, 15 P. D. 149. 
 
 Stone V. Forsyth, Dougl. 708. {q) See post, Pt. i. Bk. iv. Ch. 
 
 Sugden on Powers, 332, 4th edit. in. § vii. 
 
 Tucker v. Inman, 4 M. & Gr. 1049. (r) Allen v. Bradshaw, 1 Curt. 
 
 (o) In the goods of Tomlinson, 110, 121. 
 6 P. D. 209. 
 
 &eut
 
 Cb. I. § II. J Wills of Married Women. 51 
 
 doubt on the point, it was always deemed the safer course to 
 
 admit the paper to probate : inasmuch as the production of 
 
 such a probate will not alone be sufficient to induce a Court 
 
 of Equity to act upon it; for, with respect to other special 
 
 circumstances which may be required to give the instrument 
 
 effect as a valid appointment, viz., attestation, sealing, 
 
 &c., the Temporal Courts were never contented with the 
 
 judgment of the Spiritual Court (s) : whilst on the other 
 
 hand, if the Court of Probate should reject the paper, its 
 
 decision would be final ; as the Court of Construction will not 
 
 proceed to the consideration of the effect of any testamentary 
 
 paper, till it has been proved in the Probate Court (i). But without any 
 
 at last, in the case of Barnes v. Vincent (ii), it was held by whether tt is* 
 
 the Judicial Committee of the Privy Council (reversing a'lthonz^a by 
 
 ■^ ^ the power and 
 
 the decision of the Prerogative Court of Canterbury) that the its execution. 
 proper course for the Ecclesiastical Court is to grant probate 
 wheresoever the paper professes to be made and executed 
 under a power, and is made by one whose capacity and testa- 
 mentary intention are clear, and no other objection occurs 
 save those connected with the power (for example, no objection 
 on the provisions of the Wills Act), and to leave the Court 
 which has to deal with the rights under that instrument, to 
 decide whether or not it is authorized by that power and by 
 its execution. Their Lordships appear further to have been 
 of opinion, that, on a power being alleged, the Ecclesiastical 
 Court should grant probate, without going into any question 
 as to the existence of the power. The decision in this case 
 
 (5) Rich V. Cockell, 9 Ves. 376. 144. But see Morgan v. Annis, 
 Prices. Parker, lb Sim. 198. How- 3 De G. & Sm. 461. 
 ever, if the instruuieiit has been {t) Allen v. Bradshaw, 1 Curt, 
 admitted to probate, a Court of 121,122. In the goods of Biggar, 
 Equity is precluded from question- 2 Curt. 336. See post, Pt. i. Bk. iv. 
 ing it OS a Will; and the only Ch. iii. § ix. But see also Golds- 
 office of that Court is to see that it worthy v. Crossley, 4 Hare, 140, 
 has been duly executed and at- 145. 
 
 tested according to the power : («) 4 Notes of Cas. Suppl. xxi. 
 
 Douglas r. Cooper, 3 M. & K. 378. S. C, 5 iloo. P. C. 201. 
 Whicker v. Hume, 7 H. of L. 124, 
 
 E 2
 
 52 
 
 Of the Capacity to make a Will. [Pt. i. Bk. ii. 
 
 Executor:! of 
 the Will of a 
 inarricJ »'om;m 
 made inuler a 
 power take 
 nothing /'(/re 
 
 tlmiii. 
 
 was declared Ly their Lordships to be a restoration of " the 
 ancient and laudable practice " of the Ecclesiastical Court (x). 
 The question as to the jurisdiction of the Probate Division 
 and the limit in practice of its exercise (which is wholly 
 diifereut from the question of the jurisdiction and practice of 
 the Ecclesiastical Courts and the Probate Court), has been 
 recently before the Courts in the case of In the goods of 
 Tharp (j/) in which Banics v. Vincent was commented on in 
 the Court of Appeal, and it was pointed out that such case 
 was decided at a time when the then Court of Probate, being 
 an Ecclesiastical Court, was a Court of very limited jurisdic- 
 tion, and could not decide the question of the sufficiency of 
 the execution of the power and also that since the passing of 
 the Judicature Act everyone of the Divisions of the High 
 Court of Justice, and every judge, has now jurisdiction to do 
 that which might be done by any other Division or any other 
 judge. Thus in the present day it would seem that, in a case 
 of a Will of a married woman made under a power, it would 
 not only be competent to, but also incumbent upon, the 
 Probate Division, if the Court had all persons interested 
 before it, to decide the question not only whether there was a 
 power, but whether it was well executed. 
 
 In cases where a Will is made by a married woman under 
 a power, her executors do not take jure repj'csoitationis, but 
 merely under the power which she was authorised to exercise 
 by making a Will as to particular property. And, conse- 
 quently, the title of her executors did not extend beyond 
 the property the subject of the power (s). 
 
 (x) Where the Will of a married 
 woman recited a power to bequeath 
 certain property in case of her dy- 
 ing without issue, the Court re- 
 fused to grant administration witli 
 the Will annexed to one of her 
 children, but granted a general ad- 
 ministration founded on an atfi- 
 davit that the testatrix left no Will 
 
 operative at law. In the goods of 
 Graham, L. R. 2 P. & D. 385. 
 Noble f. Phelps, L. R. 2 P. & D. 
 276. 
 
 (j/) 3 P. D. 76. 
 
 (:;) Tugman v. Hopkins, 4 M. & 
 Gr. 389. O'Dwyer v. Geare, 1 Sw. 
 & Tr. 465. And, consequently 
 there would have been an intes-
 
 Ch. T. § II.] Wills of Married Women. 53 
 
 According to the old practice, in granting probate of a Grant of pro- 
 married woman's Will made by virtue of a power, or ad- practice to 
 ministration with such Will annexed, the power under which ^P^^'^y ^^^ 
 
 ' '■ power. 
 
 the Will purported to have been made must have been 
 specified in the grant (a). 
 
 It need hardly be observed, that if a Will of a married "Will unduly 
 
 obtained or 
 
 woman, made under a power, be obtained by the husband by unduly de- 
 undue influence and marital authority, contrary to her real ^arittl '^ 
 wishes and intentions, such Will will not be admitted to pro- authority, 
 bate {b) . So if a wife have power to dispose of property by 
 her Will, makes her Will, and afterwards destroys it by the 
 compulsion of her husband, it may be established, upon 
 satisfactory proof of its having been so destroyed, and also of 
 its contents and execution (c). 
 
 Besides the case of a Will, made by a married woman by Willof/cme 
 
 covert of per- 
 
 virtue of a power, there were, even before the Married Women's sonaity settled, 
 
 Property Act, other circumstances under which a will made by gettkj^to her^ 
 
 her was valid without the assent of her husband, viz., where separate use : 
 
 personal property was actually given or settled, or was agreed 
 
 to be given or settled, to the separate use of the wife. In 
 
 such a case it has been established, since the case of Fctti- 
 
 •place V. Gorges (d), that she may dispose of it as a feme 
 
 sole, to the full extent of her interest, although no particular 
 
 form to do so is prescribed in the instrument by which the 
 
 settlement or agreement was made. The principle upon 
 
 which that decision was founded is this ; that when once the 
 
 tacy as to property not disposed of under which the Will has been, or 
 
 Ly the power. purports to have been, made. The 
 
 (a) Rule 15, 1862, P. R. (Non- probate shall take the form of 
 
 Contentious Business). This rule ordinary grants of probate without 
 
 was repealed in April, 1887, and any exception or limitation and 
 
 by the rule (18) substituted for it issue to the executor, 
 
 it is enacted that in the grant of (h) Marsh v. Tyrrell, 2 Hagg. 84. 
 
 probate of the Will of a married Mynn v. Robinson, 2 Hagg. 179. 
 
 woman it shall not be necessary (c) Williams v. Baker, Prerog. 
 
 to recite in the grant, or in the Trin. Term. 1839. 
 
 oath to lead the same, the (ri) 1 Ves. Jun. 46. S. C, 3 Bro. 
 
 separate personal estate of the C. C. 8. 
 testatrix or the power or authority
 
 54 
 
 Of the CajKtcitij to make a Will. [Pt. i. Bk. ii. 
 
 good, of pro- 
 perty ill rever- 
 sion as well as 
 possession : 
 
 xtends to 
 accretions. 
 
 Statutory 
 testaineiitaiy 
 I>owers of 
 
 wife is permitted to take personal property to her separate 
 use as a feme sole, she must so take to it with all its privileges 
 and incidents, one of which is the jus dhponendi (e). And 
 it may be stated as a general rule, that personal property 
 which has been acquired by a married woman under such 
 circumstances, that it became her separate estate, may be 
 dealt with by her as if she were a feme sole (/). And this 
 rule prevailed without regard to the circumstance, whether the 
 property were in possession or reversion (g), and whether it 
 were vested or contingent (li). And when she has such a 
 power over the principal, it extends also to its produce and 
 accretions, e.g., the savings of her pin-money (/). Nor did it 
 make any difference whether the property were given to trustees 
 for the wife's separate use, or without the intervention of 
 trustees, to the wife herself, for her own separate use and 
 benefit (/>•) ; for in the latter case a Court of Equity would 
 decree the husband to stand as a trustee to the separate use 
 of the wife (kk). 
 
 Even before the Married Women's Property Act, 1882, 
 the Legislature had by statute given married women testa- 
 
 (e) Rich V. Cockell, 9 Ves. 369. 
 But in the case of such property 
 the title to which accrued to a 
 married woman before the com- 
 mencement of the Married Women's 
 Property Act, 1882, if she dies in- 
 testate, the property will belong to 
 her husband jure mariti : Molony 
 V. Kennedy, 10 Sim. 254. 
 
 (/) As to what before the 
 ifairied Women's Property Act, 
 1882, was considered as such 
 separate estate, see Haddon v. 
 Fladgate, 1 Sw. & Tr. 48. In the 
 goods of Smith, ibid. 125. In the 
 goods of Croft?, L. B. 2 P. & D. 18. 
 The old cases have, however, lost 
 their importance since the passing 
 of the Married Women's Property 
 Act, 1882 (45 & 46 Vict. c. 75). See 
 post, Pt. II. Bk. II. Ch. II. § III., 
 
 where the general subject of tlie 
 separate property of a widow as 
 against her husband's executors is 
 considered. x/^JZ- o-o(^<u_ci^ 
 
 (g) Sturgis v. Corp, 13 Ves. 190 
 
 (h) Lechmere v. Brotheridge, 32 
 Beav. 353. 
 
 (i) Herbert v. Herbert, Prec. 
 Ch. 44. 1 Eq. Ca. Abr. 66, 68. 
 Accordingly, she could dispose by 
 Will, as against her husband, of 
 the savings out of her alimony : 
 Moore v. Barber, 34 L. J., N. S., 
 Ch. 667 : coravi Stuart, V. C. 
 
 (k) See the judgment of Sir John 
 NichoU, in Braham v. Burchell, 3 
 Add. 263. 
 
 {kk) Tappenden v. Walsh, 1 Phil- 
 lim. 352, and the authorities there 
 cited.
 
 oil. I. § II.] Wills of Married Women. 55 
 
 mentary powers under special circumstances, for the Divorce married women 
 
 Act (1857), 20 & 21 Vict. c. 85, sect. 21, enacts that a wife Married 
 
 who has obtained a protection order by reason of her husband ^^rJ^^Act^"^"' 
 
 having deserted her shall, during the continuance thereof, be I'^S'i. 
 
 and be deemed to have been, during such desertion of her, in covert ot^ 
 
 like position in all respects, with regard to property, as she Property ac- 
 
 would be if she had obtained a decree of judicial separation, protection 
 
 And by sect. 25, referring to property acquired by the wife . '.,.., 
 •' is L i J 1 J after a judicial 
 
 from the date of the sentence of judicial separation, it is pro- separation. 
 vided that " such property may be disposed of by her in all 
 respects as a feme sole, and on her decease the same shall, in 
 case she shall die intestate, go as the same would have gone 
 if her husband had been then dead." Under these enact- 
 ments a woman having been deserted by her husband obtained 
 a protection order by reason of his desertion. On her death, 
 in the life of her husband, intestate, the Court decreed letters 
 of administration, limited to such personal property as she 
 had acquired, or become possessed of, since the desertion, 
 without specifying of what that property consisted, to be 
 granted to one of her next of kin (I). 
 
 The law as to the testamentary powers of married women. Testamentary 
 and as to their rights of property generally, has been com- married 
 pletely altered by the Married Women's Property Act, 1882 ™lm"e!r 
 (45 & 46 Vict. c. 75), which repealed the Married Women's Women's 
 Property Act, 1870 (33 & 34 Vict. c. 93). The earlier statute ^^p'"^^' "^'^ 
 only affected testamentary powers of married women in so 
 far as it brought within separate property the wife's personal 
 earnings, and generally gave her a right of acquiring property 
 independently of her husband. The Act of 1882 expressly 
 gives married women testamentary powers. The material 
 sections of this Act are the following : — 
 
 (Z) In the goods of Worman, 1 the wife becomes entitled as execu- 
 
 Sw. & Tr. 513. The requirement trix or administratrix since the 
 
 in the statute as to the entry of sentence of separation or com- 
 
 the protection order with the menceinent of desertion, see stat. 
 
 registrar is directory only : In 21 & 22 Vict. c. 108, s. 7 ; Bathe 
 
 the goods of Faraday, 2 Sw. & Tr. v. Bank of England, 4 K. & J. ,564. 
 
 369. As to the property to which Post, Pt. ii. Bk. iv. Ch. ri.
 
 56 Of the Capacity to make a Will [Pt. i. Bk. ii. 
 
 Sect. 1 (sub-8. 1). "A married woman shall in accordance 
 A\itli the provisions of this Act be capable of acquiring, hold- 
 ing, and disposing by will or otherwise of any real or personal 
 property as her separate property in the same manner as if she 
 were afemc sole, without the intervention of any trustee " (11). 
 
 Sect. 2. " Every woman who marries after the commence- 
 ment of this Act " (1 Jan., 1883) " shall be entitled to have and 
 to hold as her separate property, and to dispose of in manner 
 aforesaid " (i.e., by will or otherwise as if she were a feme 
 sole), "all real and personal property which shall belong to her 
 at the time of marriage, or shall be acquired by or devolve 
 upon her after marriage, including any wages, earnings, 
 money and property gained or acquired by her in any employ- 
 ment, trade, or occupation in which she is engaged, or which 
 she carries on separately from her husband, or by the exercise 
 of any literary, artistic, or scientific skill." 
 
 Sect 4. " The execution of a general power by Will of a 
 married woman shall have the effect of making the property 
 appointed liable for her debts and other liabilities in the same 
 manner as her separate estate is made liable under this 
 Act." 
 
 Sect. 5. "Every woman married before the commencement 
 of tliis Act " (1 Jan., 1883) " shall be entitled to have and to 
 hold and to dispose of in manner aforesaid " {i.e., by Will or 
 otherwise as if she were a feme sole) "all real and personal 
 property, her title to which, whether vested or contingent, 
 and whether in possession, reversion, or remainder, shall 
 accrue after the commencement of this Act (m), including any 
 
 (11) It is only in accordance with married before the commencement 
 
 the provisions of the Act that tliis of the Act in accordance with 
 
 suh-section gives power to a mar- section 5 of the property in that 
 
 ried woman to dispose of her section mentioned. Fie Cuno, 43 
 
 property by Will as her separate CD. 12. 
 
 property, that is to say, in the (m) Property, the title to which, 
 
 case of a woman married after the whether vested, or contingent, in 
 
 commencement of the Act, in reversion, or remainder, is ac- 
 
 accordance with section 2, of the quired before the commencement 
 
 property in that section men- of the Act, does not come within 
 
 tioned ; in the case of a woman this section though it falls into.
 
 Ch. I. § II.] Wills of Married Women. 57 
 
 wages, earnings, money and property so gained or acquired 
 by her as aforesaid" {i.e., in sect. 2). 
 
 Sect. 23. "For the purposes of this Act the legal personal 
 representative of any married woman shall, in respect of her 
 separate estate, have the same rights and liabilities and be 
 subject to the same jurisdiction as she would be if she were 
 living." 
 
 The general effect of this Act on the testamentary capacity 
 of women married on or after the 1st January, 1883 {mm), 
 would seem to be that a married woman can, during coverture, 
 dispose by Will of all property which she then (during cover- 
 ture) ill) has, whether real or personal, as if she were a feme 
 sole, and the property limited to her separate use ; while with 
 regard to women married before that date their testamentary 
 capacity is limited to property to which their title accrues 
 after that date, including any wages, earnings, money or pro- 
 perty gained or acquired by her as aforesaid in the Act {im) . 
 
 One consequence of the change in the capacity of married 
 women to acquire property and hold it as separate property 
 and dispose of it by Will has been that the old rule as to 
 specifying in the grant of probate, or administration with the 
 Will annexed, the power under which the Will purported to 
 have been made, has been repealed (except in so far as concerns 
 anything done or proceeding taken in accordance with it) by 
 Rules 15 and 18, April, 1887, P. R. (Non-Contentious Busi- 
 ness), which enact that it shall not be necessary to recite in 
 the grant the separate personal estate of the testatrix or the 
 power or authority under which the Will has been or purports 
 to have been made. The probate, or letters of administration 
 with Will annexed, shall take the form of ordinary grants of 
 probate or letters of administration with Will annexed, 
 without any exception or limitation (o). 
 
 possession after the Act. Eeid v. would seem to be her personal 
 
 Reid, 31 C. D. 402. earnings after marriage as defined 
 
 (mm) See section 2 above. in sect. 2 of the Act. 
 
 (n) Be Price, 28 C. D. 709. (o) Re Price, 12 P. D. 137. 
 
 (nn) Sect. 5. " As aforesaid "
 
 58 Of the Capacity to make a Will. [Pt. i. Bk. ii. 
 
 It has been pointed out (j)) that since the Judicature Act 
 the jurisdiction of the Probate Division is not limited by the 
 rule established by the case of Barnes v. Vincent (q) by the 
 Judicial Committee of the Privy Council in respect of the 
 Ecclesiastical Courts, and in 1878 it was decided that when 
 the Will of a married woman is tendered for probate on the 
 ground that she had separate property and the probate is 
 contested, if the Court is satisfied that there is separate 
 property it has power to grant probate of all such property as 
 the testatrix has power to dispose of, without deciding what 
 that property is, but it is in general the duty of the Court, so 
 far as the evidence and pleadings enable it to do so, to decide 
 judicially of what such property consists (r). 
 
 The Will of a married woman dealing only with realty, but 
 
 appointing executors, is entitled to probate where a portion of 
 
 the estate consists of personalty vested in her by virtue of the 
 
 Married AVomen's Property Act, 1882 (s). 
 
 Property ac- jf ^ wife acquired any property after her husband's death, 
 
 quired by the 
 
 wife cafter bus- it could not pass by a Will made during her coverture, though 
 by the consent of her husband : for at the time of making the 
 Will she was intestable as to that property (/)• And the law 
 in this respect remained, it should seem, unaltered, not- 
 withstanding that, by the 24th section of the Wills Act 
 (1 Yict. c. 26), every Will is to be construed to speak and 
 take effect as if it had been executed immediately before the 
 death of the testatrix, unless a contrary intention shall appear 
 by the Will : for the effect of that is not to make a Will valid 
 which was invalid in its inception, but to give a rule for the 
 construction of a valid testamentary instrument (w). Neither, 
 it would seem, is it altered in this respect by the Married 
 Women's Property Act, 1882 (.r). 
 
 [p) Ante, p. 52. (f) Scammell v. Wilkinson, 2 
 
 Iq) 5 Moo. P. C. 201. East, 556. Swinb. Pt. 2, s. 9, pi. 5. 
 
 (r) In the goods of Tharp, 3 (w) Price v. Parker, 16 Sim. 198, 
 
 P. D. 76. 202. WiUock v. Noble, L. R. 7 
 
 (s) In the goods of Cubbon, 11 H. of L. 580. See ayite, p. 47, 
 
 P. D. 169. And see In the goods ii. (0- 
 
 of Hornbuckle, 15 P. D. 149. (x) Re Price, 28 C. D. 709. 
 
 band's death.
 
 Cli. I. § III.] Persons Incaixi.hk' from Criminal Conduct. 59 
 
 If sifeyne sole makes her Will, and afterwards marries, such win made i)y 
 subsequent marriage is a revocation, and entirely vacates the "j^,7rn1,(r'e '^**^ 
 Will : and although she should survive the husband, a Will 
 made before marriage will not revive upon his death, without 
 a republication (ij). 
 
 A Will of a. feme corcrt, made during coverture, in virtue of Will made by 
 powers vested in her under her marriage settlement, is not re- marriage m^t 
 voked by her surviving her husband (z). •^'^°!''.^ ^{ ''"" 
 
 •' o ^ ' surviving her 
 
 A woman whose husband is banished by Act of Parliament liusband. 
 may make a Will, and act in every respect as a feme sole (a). ^ woman whose 
 So where a married woman, whose husband was a convict, I'anished, or 
 made a Will, probate thereof was granted, on proof given that 
 the property bequeathed was acquired by her subsequently to 
 her husband's conviction, though he had received a conditional 
 pardon from the governor of the colony whither he had been 
 transported for life (h). And the Queen consort is an excep- The Queen 
 tion to the general rule ; for she may dispose of her chattels 
 by Will without the consent of her lord (c). 
 
 Where a married woman was a native of Spain, and domi- Will of mar- 
 
 . lied vi'oman, 
 
 ciled there, and it appeared, upon affidavit, that, by the law of native of, and 
 Spain, she had full power and authority to bequeath, as afeme l°fOTel"n ^"' 
 sole, the property she brought her husband on her marriage, ^'^""t'T- 
 probate was granted of her Will, made according to the law of 
 that country (d). 
 
 SECTION III. 
 
 Persons incaj^ahle from their Criminal Conduct. 
 
 Formerly traitors and felons were from their criminal Traitors and 
 conduct incapable of making Testaments from the time of 
 
 {y) Post, Pt. I. Bk. 11. Ch. iii. (6) In the goods of Martin, 2 
 
 § V. Robert. 405. In the goods of 
 
 (s) Morwan v. Thompson, 3 Coward, 11 Jur. (N, S.) 569. 
 
 Hagg. 239. Trimmell v. Fell, 16 S. C, 34 L. J. (N. S.) P. M. & A. 
 
 Beav. 537, 541. Bishop v. Wall, 120. 
 
 3 C. D. 194. {c) 2 Black. Coram. 498. 
 
 (a) Portland v. Prodgers, 2 Vern. {iJ) In the goods of Maraver, 1 
 
 104. Comptoni). Colliason, 2 Bro. Hagg. 498. See 'post, Pt. i. Bk. iv. 
 
 C. C. 385. Ch.iv. § VI.
 
 ^^ Of the Capacity to make a Will [Pt. i. Bk. ii. 
 
 their conviction : for then their goods and chattels were no 
 longer at their own disposal, but forfeited to the King {e). But 
 if a convict, traitor, or felon obtained the King's pardon, and 
 was thereby restored to his former estate, then he might make 
 his Testament, as if he had not been convicted (/). And if he 
 had goods as executor to another the same were not forfeited 
 by conviction, whence it followed of such goods he might make 
 his Will {(j). Xow, however, that forfeiture of lands and goods 
 for treason and felony has been abolished by stat. 33 & 34 
 Vict. c. 23, it would seem to follow that traitors and felons 
 are no longer incapacitated from making "Wills. 
 Felo dc se. Neither could a felo de se make a Will of goods and 
 
 chattels ; for they were forfeited by the act and manner 
 of his death (Ji) ; although he might make a devise of his 
 lands, for they were not subjected to any forfeiture (?). 
 But though the goods were forfeited so that the Will could 
 not operate on them, it did not follow that he was incapable 
 of making a Will and appointing an executor ; and Sir C. 
 Cresswell granted probate of the Will of a person who had 
 been found felo de se by a coroner's inquest, acting, it should 
 seem, on the distinction between the operative effect of a 
 testamentary paper and its title to probate {k). Indeed, pro- 
 bate may have been requisite in such a case, not only for the 
 purpose of passing property held by the deceased in aiiter 
 droit, but also to enable the executor to exercise his un- 
 doubted right to traverse the inquisition {I). But now it 
 would seem to follow from the above statute that a felo de se 
 
 (e) 2 Black. Comm. 499. Swinb. versing an inquisition or present- 
 
 Pt. 2, ss. 12, 13. Godolph. Pt. 1, ment oifelo de se. 
 
 c. 12. {i) 3 Inst. 55. 4 Burn, Ecc. L. 62. 
 
 (/) Swink Pt. 2, s. 12, pi 3. (k) In the goods of Bailey, 2 Sw. 
 
 Godolph. Pt. 1, c. 12, pi. 1. & Tr. 156. 
 
 (cj) Godolph. Pt. 1, c. 12, s. 2. 4 (l) See post, Pt. ir. Bk. iii. Ch. 
 
 Burn, Ecc. L. 61. iv. as to the executors or adminis- 
 
 (h) 2 Black. Comm. 499. Swinb. trators of the deceased traversing 
 
 Pt. 2, s. 20. 8eepost, Pt. ii. Bk. iii. an inquisition or presentment of 
 
 Ch. IV. as to the execiitors or ad- felo de se. 
 ministrators of the deceased tra-
 
 Cb. I. § III.] Persons Incapctblefrom Criminal Conduct. 61 
 
 is no longer incapacitated from making a Will of goods and 
 chattels. 
 
 Outlaws are incapable of making a Will (??i), as long as Outlaws. 
 the outlawry subsists ; for their goods and chattels are for- 
 feited during that time {n). But a man outlawed in a per- 
 sonal action may, it is said, in some cases make executors : 
 for he may have debts upon contract which are not forfeited 
 to the King : and those executors may have a Writ of Error 
 to reverse the outlawry (o). 
 
 Before the stat. 53 Geo. III. c. 127, there was some doubt Persons ex- 
 whether an excommunicate person could make a Will {p) ; '^""^"^'^^'^^-^ ®' 
 but, by that statute, excommunication is not to be pronounced, 
 except in certain cases ; and by section 3, in those cases, 
 parties excommunicated shall incur no civil incapacity what- 
 ever. As for persons guilty of other crimes, short of felony, Pei'sons guilty 
 
 1 T ,1 • -1 1 1 1 T (> 1 . of crimes short 
 
 who are by the civil law precluded irom making testaments, of felony, 
 (as usurers, libellers, and others of a worse stamp), by the 
 common law their testaments are good ('2). 
 
 (;n) See stat. 33 & 34 Vict. c. 23, (o) Shaw v. Cutteris, Cro. Eliz. 
 
 s. 1. 851. 4 Burn's Ecc. L. 62. Wentw. 
 
 (?0 2 Black. Comm. 499. Go- c. 1, p. 37, 14tli edition. Outlawry 
 
 dolpli. Pt. 1, c. 12, s. 8. Swinb. in civil proceedings has now been 
 
 Pt. 2, s. 21, pi. 4. But it seemeth, abolished. 42 & 43 Vict. c. 59, 
 
 that he who is outlawed in an s. 3. 
 
 action, personal may make his tes- {p) Swinb. Ft. 2, s. 22. Wentw 
 
 tament of liis lands ; for they are c. 1, p. 38. 4 Burn's Ecc. L. 62. 
 
 not forfeited : Swinb. Pt. 2, s. 21, {q) 2 Black. Comm. 499. 
 pi. 7.
 
 C2 
 
 CHAPTER THE SECOND. 
 
 OF THE FOEM AND MANNER OF MAKING A WILL OR 
 CODICIL. 
 
 BeFOEE tlie passing of the statute 1 Yict. c. 26 (Act for 
 the Amendment of the Laws icith respect to Wills), no solem- 
 nities of any kind were necessary for the making of a Will of 
 personal estate. The fifth section of the Statute of Frauds, 
 which required the formalities of signature and attestation 
 for a devise of lands, did not extend to "Wills of personal pro- 
 perty. The nineteenth section made it necessary that they 
 should, generally speaking, be reduced into writing in the 
 testator's lifetime ; inasmuch as it was thereby enacted, that 
 no nuncupative Will (where the estate thereby bequeathed 
 exceeded the value of 30/.) should be good, except under cer- 
 tain circumstances which will be hereafter pointed out (a). 
 But no other formality whatever was necessary to give them 
 effect and operation. Whence it often happened that a Will, 
 intending to dispose of both real and personal estate, was 
 inoperative as to the former, and at the same time a perfect 
 disposition of the latter. 
 1 Vi.t. c. 26 The Wills Act repeals the Statute of Frauds, so far as 
 
 relates to Wills {viz. sects. 5, 6, 12, 19, 20, 21, 22, and 23), 
 and contains enactments, the result of which is, that, on or 
 after the first day of January, 1838, the solemnities prescribed 
 by the Act are required to render valid any Will or other 
 testamentary disposition of every description of property 
 without distinction ; so that the same formalities of execu- 
 tion and attestation are necessary, whether the instrument 
 disposes of real or of personal estate. 
 
 (rt) Post, sect. VI.
 
 Cli. II.] Of the For7n, dc. of making a Will. G^ 
 
 These enactments are contained in the following sections 
 of the Statute of Victoria. 
 
 Sect. 9. "No Will [or codicil, or other testamentary dis- Every Will 
 
 position] (h) shall be valid, unless it shall be in writing, and writing and 
 
 executed in manner hereafter mentioned; (that is to say,) it testator fn the 
 
 shall be signed at the foot or end thereof (c) by the testator, r';esenceof two 
 
 '^ \ / ^ ' witnesses at 
 
 or by some other person in his presence and by his direction ; one time : 
 and such signature shall be made or acknowledged 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." 
 
 Sect. 11. "Provided always, and be it further enacted, exceptions as 
 
 1 ,,. , . , .,. . to Wills of 
 
 that any soldier being m actual military service (a), or any soldier.-; and 
 mariner or seaman being at sea (c), may dispose of his "''^'"^'^^■'' • 
 personal estate as he might have done before the making of 
 this Act." 
 
 The construction of this section will be considered here- 
 after (/). 
 
 Sect. 13. "Every Will executed in manner heretofore publication not 
 required, shall be valid without any other publication ^ 
 thereof." 
 
 It must, however, be observed, that this statute does not The statute 
 extend to any Will made before January 1, 1838 {(/). As to to Wilis made 
 the law with respect to Wills made at an earlier date, see the j^^"g° °' ^' 
 former editions of this work, Pt. i. Bk. ii. Ch. ii. 
 
 It may here be remarked, that where a Will without date Pre^iumption as 
 
 to tlie time 
 
 is properly executed according to the former law, but not when a Will 
 executed pursuant to the new Act, and the case is altogether ^alTuaie**^*^ 
 
 (6) See the Interpretation clause, (/) See j^ost, ■p-p. lOi, et seq. 
 
 sect. 1, Preface. See also 3 Curt. {(j) But every Will re-executed 
 
 478, 479. or republished or revived by any 
 
 (c) A statutory construction ha.s codicil is, for the purposes of tlm 
 been put upon these words by Act, to be deemed to have been 
 stat. 15 Vict, c 24, See post, made at the time the same was si* 
 p. 67. re-executed, republished, or rc- 
 
 (d) See post, p. 104. vived (sect. 34), 
 (f ) See post,' J). 1 05
 
 64 Of the Form, &c. of making a Will [Pt. i. Bk. ii. 
 
 bare of circumstances Avliicli can afford the Court any informa- 
 tion as to the time when the Will was made, it has been held, 
 that the presumption is, that it was made before the Act 
 came into operation ; inasmuch as every one is presumed to 
 know the law, and the Court, in the absence of evidence 
 tending to a contrary conclusion, is bound to presume that 
 the Will was executed according to the law as it stood at the 
 time the instrument n-as written (//). 
 
 SECTION I. 
 
 Of the Signature hy the Testator. 
 
 Signature of With respect to the signature of a Will, made (or re- 
 
 WiUsmade executed or republished) (/) on or after the 1st day of 
 
 £iit6r J till, ij 
 
 1838 : January, 1838 (k), it is required by the stat. 1 Yict. c. 26, 
 
 1 A ict. c. 26, g_ g^ ^^^^ j^ a g|-j^2j |jg signed at the foot or end thereof by the 
 testator, or by some other person in his presence and by his 
 direction." 
 signature by It seems clear that the making of a mark by the testator is 
 
 a sufficient signing to satisfy the statute. It was held by the 
 Court of Queen's Bench, in Baker v. Dening (l), that under 
 the Statute of Frauds (s. 6), the making of a mark by a 
 devisor, to a Will of real estate, is a sufficient signing; ayid 
 that is sufficient, tcithout reference to any question whether he 
 could icrite at the time. 
 
 So in Wilson v. Bcddard (m), on the trial of an issue 
 devisavit vel non, directed by the Court of Chancery, 
 Parke, B., said, that it was necessary, under that statute, 
 that the Will should be signed by the testator, but not with 
 his name, for his mark was sufficient if made by his hand 
 
 mark suffi 
 cieut, 
 
 {h) Pechell v. Jenkinson, 2 Curt. and authorities as to Wills made 
 
 273. As to the presumption in prior to this date, see the former 
 
 the case of alterations appearing on Editions of this Work : Pt. I. Bk. ii. 
 
 the face of a Will, see post, Pt. i. Ch. ii. § i. 
 
 Bk. II. Ch. III. § I. (I) 8 A. & E. 94. 
 
 (i) See supra, p. 63, note (^r). (m) 12 Sim. 28. 
 
 (k) For a statement of the Law
 
 oil. II. § l] Of Signature hy the Testator 
 
 65 
 
 though that hand was guided by another person ; and Su* 
 L. Shadvvell, V. C, afterwards held, that this proposition was 
 correct. 
 
 These decisions appear to be equally applicable to the 
 statute of Victoria as to the Statute of Frauds, for the 
 language of both Acts in this respect is almost identical, the 
 words of the latter being that all devises and bequests of 
 lands 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, &c." {n). Accordingly it has been held in 
 the construction of the statute of Victoria, that when, in the 
 testator's presence, and by his directions, another person 
 stamped the "Will, by way of signature, with an instrument on 
 which the testator has had his usual signature engraved, 
 so that it might be stamped on letters or other documents 
 requiring his signature, this was a due execution of the 
 Will (o). 
 
 Again, Wills have been admitted to probate which have Signature 
 
 (n) See Accord. In the goods 
 of Bryce, 2 Curt. 325 ; in which 
 case a Will made since Jan. 1, 
 1838, was admitted to probate, on 
 motion, the testatrix having signed 
 it with a mark, and notwithstand- 
 ing her name did not appear on the 
 face of the instrument. See also 
 In the goods of Amiss, 2 Eobert. 116, 
 post, p. 82. So where one Thomas 
 Donee pnt his mark to a testa- 
 mentary paper in which he was de- 
 scribed throughout as John Douce, 
 the Court, on being satisfied on 
 affidavit that Thomas Douce duly 
 executed the paper, granted probate 
 thereof as his Will : In the goods 
 of Douce, 2 Sw. & Tr. 593. Again, 
 where a Will purporting to be 
 that of S. Clarke, and delivered hj 
 her as such for safe custody to 
 one of her executors shortly before 
 her death, was executed by mark 
 
 W.E. — VOL. I. 
 
 against which appeared the name 
 of S. Barrell (her maiden name), 
 it was held, that there being no 
 doubt of the identity of the testa- 
 trix, her execution by mark was not 
 vitiated by another person having 
 written the wrong name against 
 it : In the goods of Clarke, 1 Sw. & 
 Tr. 22. But where the deceased who 
 resided with her sister, prepared 
 two Wills for their respective exe- 
 cution, the legacies in each and the 
 disposition of the residue being 
 almost identical, and by mistake 
 executed the Will prepared for her 
 sister, the Court held that the 
 deceased did not know and approve 
 of the contents of the document 
 she executed, and refused probate 
 of it. In the goods of Hunt, 
 L. R. 3 P. & D. 250. 
 
 (o) Jenkins v. Gaisford, 3 Sw. & 
 Tr. 93. 
 
 F
 
 66 
 
 Of the Form^ &c. of making a Will [Pt. i. Bk. n. 
 
 uniler an as- been Signed by tbe testator under an assumed name, the' 
 
 sumed name. . „".. , , -i.-j 
 
 Court bemg of opinion that such assumed name might stand 
 
 for, and pass as, the mark of the testator (p)- 
 Sealing not a In the construction of the Statute of Frauds, it was once 
 nature. °' Considered that the putting of a seal by the testator was a 
 
 sufficient signing ; for that sigmim was no more than a mark,. 
 
 and sealing is a sufficient mark that it is his Will (q). 
 
 But this doctrine has bean since overruled (r). Whence it 
 
 appears to follow, that sealing would not be regarded as a 
 
 signino; within the statute of Victoria. 
 The signature The Will is required by that Act to be signed " at the foot 
 
 underthe Wills , , /-., mi o, , , p -n ^ i • Ji i 
 
 Act is required 07' end thcreoj. Ihe btatute ot jbrauds merely requires tnat 
 foowfend! t^ie ^^'ill shall be " signed ; " and it was held, that a Will in 
 the testator's own handwriting commencing, " I, John Styles, 
 do declare this to be my last Will, &c." was sufficiently 
 " signed " within that statute, although not subscribed with 
 his name (s). With a view, perhaps, to prevent future 
 controversy, as to whether a Will so signed is a complete 
 and perfect instrument, the statute of Victoria required that 
 the signature of the testator shall be at the foot or end 
 of the Will. 
 
 But questions of this kind do not appear to be altogether 
 excluded by the operation of this enactment : And a new 
 ground of contest arose out of it, as to what maybe considered 
 a signing of the Will at the end or foot thereof. 
 
 Doubts arose whether a signature by the testator in the 
 body of the testimonium or attestation clause was sufficient ; 
 and also, whether a signature below the latter clause, when it 
 runs beneath the conclusion of the Will, was a compliance 
 with the Act. On the question, whether the Will was well 
 executed, if there was a blank space between the conclusion 
 of the Will and the signature of the testator, a lamentably 
 large number of points and decisions occurred. In the earlier 
 
 (p) In the goods of Glover, 5 1. 
 
 Notes of Cas. 553. lu tlie goods (r) Smith f. Evans, 1 "Wils. 313. 
 
 of Redding, 2 Robert. 339. (s) Coles v. Trecothick, 9 Ves. 
 
 (7) Lemayne v. Stanley, 3 Lev. 249.
 
 Cb. II. § I.] Of Signature hy tlic Testator 
 
 07 
 
 cases Sir H. Jeuuer Fust put a very liberal construction on 
 this part of the Act. But afterwards that learned judge, in 
 concurrence with the Judicial Committee of the Privy 
 Council {t), felt it necessary to take a more rigid view of 
 this enactment, on the ground that it was intended to prevent 
 any addition being made to the Will after the deceased had 
 executed it. And accordingly probate was refused in a great 
 number of subsequent cases on this objection, and the inten- 
 tion of a great many testators unfortunately defeated. 
 
 This led to the passing of the stat. 15 Vict. c. 24, which, 
 after reciting that, by the stat. 1 Vict. c. 26, it had been 
 enacted that no Will shall be valid unless 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, proceeds to enact, stat. 15 Vict. 
 by sect. 1, that " every Will shall, so far only as regards the '" ' . 
 
 •^ ^ _ ' _ -^ ' JO When signa- 
 
 position of the signature of the testator, or of the person tme to a Will 
 signing for him as aforesaid, be deemed to be valid within the ^^11(1. 
 said enactment, 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 (.r), that it shall be apparent 
 
 (<) Willis V. Lowe, 5 Xotes of 
 Cas. 428. S. C. 1 Robert. 618, 
 note (J)). Smee v. Bryer, 6 Notes 
 of Cas. 20, Snppl. xii. S. C. 1 
 Robert. 616. 6 Moo. B. C. 404. 
 
 (u) A signature written cross- 
 ways on the second page of a paper, 
 on the first and third pages of 
 which the will was written, was 
 held sufticient. In the goods of 
 Powell, 4 Sw. & Tr. 34. AVliere 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 
 ktter which touched the last line, 
 it was held that the will was signed 
 at the foot or end thereof: In the 
 goods of Woodley, 3 Sw. & Tr. 420. 
 The same was held under the stat. 
 
 15 Vict. c. 24, of a Will made in 
 France, and signed not at the end 
 of the Will, but at the end of a 
 notarial minute which followed in 
 the same sheet. Page v. Donovan, 
 Dea. & Sw. 278. A signature at 
 the end of several sheets of the 
 Will except the last has been held 
 insufficient, the signature not being 
 at the end of the Will. Sweetland 
 r. Sweetland, 4 Sw. & Tr. 6. A 
 Will ended on the second page of 
 a folded sheet of paper, and the 
 rest of the page was in blank. 
 The attestation clause and signa- 
 tures of the testator and the at- 
 testing witnesses were written on 
 the third page : the signature of '-^2e CK^d-O^dety. 
 
 (x) For note see next page. 
 F 2
 
 68 
 
 Of the Form, &c. of making a Will. [Pt. i. Bk. ii. 
 
 ou the face of the Will that the testator intended to give effect 
 hv 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 follow 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 
 
 the testator being opposite the 
 clause appointing executors, the 
 attestation clause being written 
 beneath the signatures and ending 
 opposite to the concluding words 
 of the Will, and the signatures of 
 the attesting witnesses being at the 
 bottom of the attestation clause : 
 It was held that the signature was 
 so placed beside or opposite to the 
 end of the Will that it was ap- 
 parent on the face of the Will that 
 the testator intended to give effect 
 by his signature to the writing as his 
 will, and that the Will was therefore 
 entitled to probate. In the goods of 
 Williams, L. E. 1 P. & D. 4. A Will 
 filled the first and third pages of a 
 sheet of foolscap paper, leaving no 
 room at the bottom of the third 
 page for the signatures of the 
 testator and attesting witnesses, 
 which were written crossways on 
 the second page. It was held that 
 the Will was duly executed. In 
 the goods of Coombs, L. R. 1. P. & 
 1>. 302. Where in a testamentary 
 paper executed by tbe deceased 
 the last sentence commenced im- 
 mediately above the signature of 
 the deceased, and was continued in 
 three abort lines to the left of it, 
 the two last lines being somewhat 
 below the signature, and this sen- 
 tence was written before the de- 
 c>iased si''ned hi;r name, it was 
 
 held that the execution was valid, 
 and that the last sentence should 
 be included in the probate. In 
 the goods of Ainsworth, L. R. 2. 
 P. & D. 151. A duly attested 
 signature on the earlier pages of a 
 Will has been held insufficient in 
 cases where an imattested signature 
 appeared on later pages. In the 
 goods of Dilkes, L. R. 3 P. & D. 164 ; 
 Phipps V. Hale, L. R. 3 P. & D. 
 166. A mark made on his deathbed 
 by a paralysed man in the middle of 
 a testamentary paper duly witnessed 
 was held insufficient, not being 
 signed at the foot or end. Margarv 
 V. Robinson, 12 P. D. 8. A codicil 
 on the third sheet of a duly exe- 
 cuted Will executed by the signa- 
 ture of the testator and attesting 
 witnesses in the margin of the first 
 sheet of the Will was held insuffi- 
 cient, Sir J. Haiinen saying that 
 "the Legislature has never departed 
 from this standard that the execu- 
 tion of a testamentary paper must be 
 signed at the foot or end thereof." In 
 the goods of Hughes, 12 P. D. 107. 
 {x) Where a Will was written 
 on a piece of parchment, and at 
 one corner at the bottom of the 
 parchment a piece of paper was 
 pasted, and a stamp impressed on 
 it, upon which paper the signa- 
 tures of the testator and the at- 
 testing witnesseswere subse juently
 
 Cli. II. § I.J Of Signature hy the Testator. 
 
 69 
 
 clause of attestation (?/), or shall follow or be after or under f^tat. 15 Vict. 
 
 c. 24. 
 
 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 (s), 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 (a), or by the 
 
 made ; it was held by Sir C. Cress- 
 well, that the signature must be 
 accepted as a signature on part of 
 the Will, so as to be witliin the 
 Stat. 15 Vict. c. 24 : In the goods 
 of Gausden, 2 Sw. & Tr. 362. And 
 this decision was followed by a 
 similar one in another case before 
 the same judge, in Cook v. Lam- 
 bert, 3 Sw. & Tr. 46 ; and see In 
 the goods of Horsford, L. R. 3 P. 
 & D. 211. 
 
 (ij) It is to be observed that 
 questions may still arise, as to the 
 validity of a signature placed 
 among the words of the testimo- 
 nium clause, or the clause of at- 
 testation, where the testator has 
 only written his name, without 
 otherwise subscribing the Will, so 
 that it may be contended that it 
 does not appear whether he in- 
 tended it or not for his signature 
 to the Will. In the following 
 cases the Court, being satisfied that 
 the deceased intended by signing 
 his name in the attestation clause 
 to execute his Will, granted pro- 
 bate. In the goods of Walker, 2 
 Sw. & Tr. 354. In the goods of 
 Casmore, L. R. 1 P. & D. 653. 
 In the goods of Iluckvale, L. R. 1 
 P. & D. 375. In the goods of 
 Pearn, 1 P. D. 70. Tlie Court 
 will in some cases presume that 
 the testator has signed his n^ime 
 
 prior to the attestation, althougli 
 there be no direct proof of tliat 
 fact. In the goods of Huckvale, 
 L. R. 1 P. & D. 375. In the goods 
 of Pearn, 1 P. D. 70. Where the 
 AVill of the deceased had an im- 
 I^erfect attestation clause, and the 
 name of the deceased appeared 
 written beneath the signatures of 
 the attesting witnesses, and the 
 witnesses were both dead, and no 
 evidence could be given as to 
 the order in which the signatures 
 were made, the Court nevertheless 
 decreed probate of the Will : In 
 the goods of Puddephatt, L. R. 2 
 P. & D. 97. See also in the Goods 
 of Jones, 46 L. J. P. & M. 80. 
 Where the Will was in the hand- 
 writing of the testator and his 
 name formed the concluding words 
 of the last clause of the Will, it 
 was admitted to probate, the Court 
 (Sir C. Cresswell) being satisfied 
 that the name loas intended to he a 
 signature : Trott v. Skidmore, 2 
 Sw. & Tr. 1 2. As to what the Act 
 means by " among the words of 
 the testimonium clause," see In 
 the goods of Mann, 28 L. J., P. M. 
 & A. 50. 
 
 (z) In the goods of Jones, 4 Sw. 
 & Tr. 1. 
 
 (a) In the goods of Williams, 
 L. R. 1 P. & D. 4. Hunt r. Hunt, 
 L. R. 1 P. & D. 20!). In the goods
 
 70 
 
 Of the Form, &c. of mall ng a Will. [Pt. l. Bk. Ii. 
 
 circumstance that there sliall appear to be sufficient space ou 
 or at the hottom of the preceding side or page, or other 
 portion of the same paper on which the Will is written to 
 contain the signature {h) ; 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 (o), or which follows it (d), nor shall it 
 
 of Jones, 4 Sw. & Tr. 1. In the 
 goods of Wright, 4 Sw. & Tr. 35. 
 
 (/)) A Will was written across 
 the second and third sides of a 
 sheet of note-paper, the lower part 
 of such sides being left blank, the 
 attestation clause and signatures 
 of the testator and witnesses were 
 written at the back of the Will 
 across the top of the first and 
 fourth sides of the paper. The 
 testator wrote the Will in the pre- 
 sence of the witnesses immediately 
 before he e.xecuted it. The Court, 
 being satisfied that the paper was 
 written before the signatures were 
 put there, granted probate (distin- 
 guishing the case- from In the 
 goods of Hammond, 3 Sw. & Tr. 
 90, in which there was no evidence 
 of the paper Iteing written before 
 the signatures). In the goods of 
 Archer, L. R. 2. P. & D. 252. 
 
 ((■) A Will contained a reference 
 to " executors hereafter narae<l,'' 
 but did not appoint e.xecutors. A 
 clause appointing executors was 
 written immediately irnderneath 
 the testator's signature. It was 
 held that this clause being under- 
 neath the signature, the probate 
 must go without it. In the goods 
 of Dallow, L. R. 1 1\ & D. 189. 
 Where from the obvious sequence 
 and sense of the context it appears 
 to the satisfaction of the Court 
 
 that the signature of the deceased 
 really follows the dispositive part 
 of a testamentary instrument, 
 though it may occupy a place on 
 the paper literally above the dis- 
 positive parts or part thereof, such 
 testamentary instrument will be 
 entitled to probate. In the goods 
 of Kimpton, 3 Sw. & Tr. 427. A 
 Will was written on the second 
 and third sides of a sheet of fools- 
 cap, on the first side of which 
 there was a lithographed form of 
 Will. The deceased signed her 
 name in the presence of witnesses 
 at the foot of the lithographed 
 form, and it was held that the first 
 page might be treated as the last 
 page of the Will, and that the 
 paper was entitled to probate. In 
 the goods of Wotton, L. R. 3 P. & 
 D. 159. The deceased in his Will, 
 which was written by himself on 
 the first side of a half-sheet of 
 paper, gave his property to his 
 wife for life, and then intending to 
 dispose of certain freehold cottages 
 on the death of his wife, com- 
 menced a sentence which he left 
 incomplete. After the incomplete 
 sentence was an asterisk and the 
 words " see over." The Will which 
 covered the whole of the first side 
 was executed at the bottom of that 
 
 (d) For note see opposite page.
 
 Cli. II. § l] Of Signature hij the Testator. 
 
 71 
 
 give effect to any disposition or direction inserted after the 
 signature shall be made (c). 
 
 Sect. 2. " The provisions of this Act shall extend and be Stat. 16 Vict, 
 applied to every Will already made, where administration or .' ' 
 
 ^ ^ "^ .; ' Act to extend 
 
 probate has not already been granted or ordered by a Court of to certain Wills 
 competent jurisdiction in consequence of the defective execu- 
 tion 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 consequence 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 
 
 side, and at tlie top of the second 
 side was another asterisk and a 
 devise of the cottages to his 
 <taughter. This bequest was writ- 
 ten before the Will was executed. 
 It was held that the words on the 
 •second side were in the nature of 
 an interlineation, and formed part 
 of the Will. In the goods of Birt, 
 L. R. 2 P. D. 214. See also In 
 the goods of Malen, 54 L. J., P. & 
 M. 91. In the goods of Green- 
 wood [1892] P. 7. See jjosi!, Alter- 
 ations and Interlineations, p. 122 
 «i seq. 
 
 (d) In order to get rid of the 
 objection that the Will was not 
 signed at the foot or end, the Court 
 has formerly, in some cases, thought 
 itself justified in regarding a por- 
 tion running below the signature as 
 forming no part of the Will, and 
 granting probate exclusive of that 
 portion. Keating r. Brooks, 4 Notes 
 of Cas. 2.5.3, 260. But in the more 
 modern case of Sweetland v. Sweet- 
 land, 4 Sw. & Tr. 6, it is laid down 
 that "the Court would not be 
 justified in fixing upon a signature 
 in the midst of what the testator 
 intended as his Will, and treating 
 
 it as an execution of all that pre- 
 ceded, and granting probate of so 
 much of the Will to the disregard 
 of the remainder. This in many- 
 cases might produce a testamentary 
 result far from the testator's wishes. 
 It does not become the Court in a 
 laudable anxiety to give effect to 
 the document to twist or distort 
 the plain meaning of the statute 
 by ingenious construction, and 
 virtually break the law to mend 
 the testator's blunder " — by Lord 
 Penzance. This has been followed 
 in the cases of In the goods of 
 Dilkes, L. R. 3 P. & D. 164 ; and 
 Margary v. Robinson, 12 P. D. 8. 
 
 (e) Where the testator, after 
 signing his name to his Will in 
 the presence of two witnesses, 
 added a clause to it, the writing 
 being squeezed into the space 
 above and beside the signature, 
 and immediately afterwards the 
 witnesses signed their names, the 
 Court held that the testator did 
 not sign or acknowledge his signa- 
 ture to the Will, as containing such 
 clause, and that probate should 
 issue without it : In the goods of 
 Arthur, L. R. 2 P. & D. 273.
 
 72 Of the Form, &c. of mahimj a Will [Pt. i. Bk. ii, 
 
 juvistlictioii, in consequence of the defective execution of 
 such Will." 
 ^?*TIItm*,^*'°" Sect. 8. " The word ' will ' shall, in the construction of 
 
 of •' Wi]l. 
 
 this Act, be interpreted in like manner as the same is directed 
 to be interpreted under the provisions in this behalf contained 
 in the said Act of the first year of the reign of Her Majesty 
 (Jucen Victoria." 
 
 Short title of Sect. 4. "This Act may be cited as 'The Wills Act 
 
 Amendment Act, 1852.' " 
 
 Blank spaces in It should be observed that there is no provision in either of 
 
 t'le hody of a , 
 
 Will are un- these Acts that the Will shall be written continuously. There- 
 objectionable, ^^^.g -^ j^j^g ^gg^ j^gj^ ^^^^ .^ ^ ^y .jj .g otherwise duly executed, 
 
 it is no objection that it contains blank spaces in the body 
 of it (/). 
 Whatisasuffi- The stat. 1 Vict. c. 26, s. 9, enacts that the Will may be 
 
 cient signing . ^ . ^ ^ ^ • " i • 
 
 by "some Signed either by the testator, or some other person m his 
 
 oiher person :" presence and by his direction." 
 
 The signature by the direction of the testator, may it 
 appears notwithstanding the contrary view expressed by Lord 
 St. Leonards in his essay on the Law of Wills, p. 38, be by 
 one of the attesting witnesses (_r/), and if the person signing 
 for the testator, signs in his own name and not in that of the 
 testator, such signature is sufficient {li). 
 
 Wliether the Where it is proved that the testator duly acknowledged a 
 
 acknowJedg- . ... 
 
 ment by the Signature to the attesting witnesses, it has been considered 
 sfcniature suf- Sufficient, 2mmdfade, without proving that the signature is in 
 fices, without iiis handwriting, or that it was made "by some other person 
 
 showing who _ ° •/ r 
 
 wrote it. in his presence and by his direction " (i). 
 
 Signature It is not uccessary that all the sheets or papers of which a 
 
 consists of ^iW consists should be signed by the testator : or that they 
 
 several sheets : g}ioui(j r{[\ \^q connected together : It is enough if they were in 
 
 (/) Corneljyv. Gibbons, 6 Notes Eobert. 262. 
 of Cas. 679. Ee Corder, 1 Robert (/t) In the goods of Clark, 2' 
 
 669. Re Kirby, 6 Notes of Cas. Curt. 329. 
 693. {i) Gaze v. Gaze, 3 Curt. 45G, 
 
 {q) In the goods of Bailej', 1 -per Sir H. Jenner Fust. 
 Curt. 914. Smith v. Harris, 1
 
 Ch. II. § II.] Tlie Attestation of Wills. 73 
 
 the same room where the execution took place ; and it must be 
 presumed, prima facie, that they were so {k). 
 
 So where a duly executed Will followed by several additions or of several 
 and alterations, at the end of which appeared the signature of ^t several 
 the testator and attesting witnesses, it was held that the *'™^- 
 signature and attestation clause applied to all the dispositive 
 clauses written above them, although these had been apparently 
 written at different times (/). 
 
 SECTION II. 
 
 Of the Attestation of Wills and Codicils of personal estate. 
 
 The stat. 1 Vict. c. 26, s. 9 {m), enacts, that no Will (or As to Wills, 
 
 testament or codicil, or any other testamentary instrument), or after Jan. l, 
 
 shall be valid unless the signature shall be " made or -^^^^ ■ 
 
 acknowledged by the testator in the presence of two or more mustTe^made 
 
 witnesses present at the same time, and such witnesses shall °^' acknow- 
 ledged in the 
 attest and shall subscribe the Will in the presence of the presence of two 
 
 testator, but no form of attestation shall be necessary." nesses present 
 
 The Statute of Frauds required, with respect to a Will of ^^j'l^g^™^',^]! 
 
 lands, that it should be "attested and subscribed in the attest and sub- 
 
 scribe the Will 
 
 presence of the devisor, by three or four credible witnesses." in testator's 
 It will be observed, that besides the change from three to 1''"'^'^^°^^ • 
 
 two in the number of witnesses, there are several important 
 
 differences between the exigencies of the two statutes. 
 
 The Statute of Frauds merely required, that the witnesses what is a suffi- 
 
 1 IT -I ^ •^ 1 TTT-77 T • ITT- 1 clout acknow- 
 
 snould attest and subscribe mg W lii ; and it was held m the ledgmentof 
 construction of this enactment, that it was unnecessary for gjgnatj^r^^to'' 
 the testator actually to sign his Will in the presence of the ^^^ witnesses : 
 
 (Ji) Gregory v. The Queen's (m) As to the law with respect 
 
 Proctor, 4 Notes of Gas. 620, 6.39. to Wills made before 1 Jan., 1838, 
 
 Post, p. 85. Marsh v. Marsh, 1 the date of the commencement of 
 
 Sw. & Tr. .528. Rees v. Rees, L. R. the AVills Act, see former editions 
 
 3 P. & D. 84. of this work. Pt. i. Bk. ii. Ch. ii. 
 
 [1) In the goods of Cattrall, 3 § ii. 
 Sw. & Tr. 419.
 
 74 
 
 Oftlic Form, dec. ofmak'mg a Will. [Pt. i. Bk. ii. 
 
 three witnesses who subscribed the same ; but that any 
 acknowledgment before them, that it was his Will, made 
 their attestation and subscription complete («)• It was 
 further held, that it was sufficient if the testator acknow- 
 ledged 171 fact, though not in words, to the witnesses that 
 the instrument was his "Will, even though such acknowledg- 
 ment conveyed no intimation whatever, or means of know- 
 ledge, either of the nature of the instrument or the object 
 of signing ; and consequently, that if the witnesses sub- 
 scribed their names as witnesses, at the testator's request, 
 icithout scciufj his s /^» a ?» re, or being informed of the nature of 
 the instrument, the statute was satisfied (o). But the statute 
 of Victoria requires further, that the sirjnature of the testator 
 "shall be made or acknowledged by the testator" in the 
 presence of the two attesting witnesses. Soon after the Act 
 came into operation, a doubt appears to have been sug- 
 gested (j)), whether an acknowledgment of the signature 
 was intended to be effectual in any other case than where 
 the signature had been made "by some other person" by 
 the direction of the testator : But Sir H. Jenner Fust was 
 clearly of opinion, that the statute meant, that whether the 
 signature be made by the testator, or by some other person, 
 if it be acknowledged by the testator in the presence of the 
 two witnesses, the execution shall be good. A more difficult 
 question hereupon arises, in cases where the signature is 
 made by the testator, but not in the presence of the attesting 
 witnesses, as to what shall be a sufficient acknowledgment 
 of it by him in their presence {q) . The result of the cases 
 
 (n) Ellis V. Smitli, 1 Yes. Jun. sufEcieut ackuowledgment of a 
 
 11. Casement v. Fulton, 5 Moo. signature, not written by the testa- 
 
 P. C. 1.38, by Lord Brougham. tor in the presence of the wit- 
 
 (o) White V. Trustees of the nesses, has recently been very fully 
 
 British Museum, 6 Bing. 310. discussed in the cases of Blake v. 
 
 Wright V. Wright, 7 Bing. 457. Blake, 7 P. D. 102; Wright v. 
 
 Johnson v. Johnson, 1 Cr. & M. Sanderson, 9 P. D. 149, and 
 
 140. Daintree v. Fasulo, 13 P. D. 67, 
 
 (j)) In the goods of Regan, 1 102, and the result seems to be 
 
 Curt. 908. that where the evidence is such 
 
 (7) The whole law as to what is a that the Court concludes that
 
 Cli. II. § II.] Of the Attestation of Wills. 
 
 75 
 
 appears to be, that where the testator produces the Will, with 
 his signature visibly apparent on the face of it, to the wit- 
 
 the witnesses (or either of them) 
 did not see the signature, the fact 
 that the testator spoke to the wit- 
 nesses of the attested document as 
 his Will, or stated that he had 
 signed the Will, but the witnesses 
 were not able to see his signature 
 that is not a sufficient acknowledg- 
 ment. In Blake v. Blake, it was 
 ■decided that to constitute a suffi- 
 ■cient acknowledgment, within sect. 
 9 of the Wills Act, the witnesses 
 must at the time of acknowledg- 
 ment see, or have the opportunity 
 of seeing, the signature of the 
 testator, and if such be not the 
 case it is immaterial whether 
 the signature be, in fact, there 
 at the time of attestation, or 
 whether the testator say that the 
 paper to be attested is his will, 
 or that his signature is inside 
 the paper. In this case, Jessel, 
 M.R., after expressing his ap- 
 proval of the law as laid down by 
 Dr. Lushington in Hudson v. 
 Parker, I Eob. 14, discusses the 
 judgment of Sir C. Cresswell in 
 Gwillim V. Gwillim, 3 Sw. & Tr. 
 200, and dissents from the view 
 of Lord Penzance, expressed in 
 Beckett v. Howe, L. R. 2 P. & D. 1, 
 that Sir C. Cresswell meant to Jay 
 down the doctrine that, if the wit- 
 nesses were unable to see the 
 signature, the testator saying he 
 had signed would be sufficient. 
 But it is to be observed that in 
 the absence of affirmative proof 
 that the witnesses did not see, or 
 could not have seen, the signature 
 of the testator, the Courts will, 
 {unless there is evidence to the 
 contrary), in the absence of fraud, 
 presume in a case where there is 
 
 a proper attestation clause, or where 
 the evidence shows that the testa- 
 tor knew the law, that the attesting 
 witnesses saw the acknowledged 
 signature. Woodhouse v. Balfour, 
 13 P. D. 2 ; not so, however, where 
 there is no formal attestation 
 clause and no affirmative evidence 
 that at the time of attestation the 
 deceased's name was on the paper; 
 for the mere production of it to 
 the witnesses with a request that 
 they will sign it as a paper, is not 
 in itself sufficient to justify the 
 Court in drawing the inference 
 that it was already signed by the 
 deceased : Fischer v. Popham, L. 
 R. 3 P. & D. 246. In Blake v. 
 Knight, 3 Curt. 547, 561, in deal- 
 ing with the question of what 
 evidence should lead the Court to 
 pronounce for or against the va- 
 lidity of a Will duly attested on 
 the face of it. Sir H. Jenner Fust 
 said : " The first point to consider is 
 whether it is absolutely necessary 
 to have positive affirmative testi- 
 mony by the subscribed witnesses 
 that the Will was actually signed 
 in their presence or actually ac- 
 knowledged in their presence 1 is 
 it absolutely necessary under all 
 circumstances that the witnesses 
 should concur in stating that these 
 facts took place ? or is it absolutely 
 necessary where the witnesses will 
 not swear positively that the Court 
 should pronounce against the 
 validity of the Will. I think these 
 are not absolute requisites to the 
 validity of a Will. I think the 
 Court must take into considera- 
 tion all the circumstances of the 
 case and judge from them collec- 
 tively whether there was not at
 
 76 
 
 Of the Form, etc. ofmahng a Will [Pt. i. Bk. 
 
 II. 
 
 nesses, and requests them to subscribe it, this is a sufficient 
 
 least an acknowledgment of a 
 signature already existing on the 
 face of the Will at the time of 
 attestation ? The testator must 
 have knoMTi how to give validity 
 to a testamentary paper in the 
 year 1838. No doubt the memory 
 of the witnesses fails them with 
 reference to circumstances happen- 
 ing nearly four years ago. The 
 Court cannot safely trust to the 
 memory of witnesses imder such 
 circumstances : it must attend to 
 the facts of the case, and say 
 whether it is satisfied that the 
 name of the deceased was written 
 to the Will when the witnesses 
 signed it, whether it was signed 
 in their presence, or signed before- 
 hand and acknowledged in their 
 presence." And the same learned 
 judge in Cooper v. Bockett, 3 Curt. 
 659, 663 (affirmed in the Privy 
 Council), said that " where the res 
 (jestm do not confirm the impres- 
 sions of the witnesses the Court 
 must look at the circumstances of 
 the case as it is always at liberty 
 to do." In Wright r. Sander- 
 son {uhisup.), Lord Selbome, after 
 quoting these two judgments of 
 Sir H. Jenner Fust, and after 
 stating that the reasons given by 
 Dr. Lushington for the decision 
 of the Judicial Committee in Lloyd 
 V. Roberts, 12 Moo. P. C. 165, 
 proceed on the same principles 
 and upon the presumption of the 
 due execution of a holograph will 
 on the face of which everything is 
 regular, and where there is no cjues- 
 tion of fraud, affirms the judgment 
 of Sir J. Hannen, pronounced for 
 the validity of a holograph codicil 
 in a case in which neither of the 
 attesting witnesses could say anv- 
 tliing as to what writing was on 
 
 the paper, nor as to whether the 
 testator's signature was there when 
 they signed, and where both said 
 that they did. not see him sign. 
 Lord Justice Fry in the same case 
 held that as the codicil ex facie 
 appeared to be properly executed 
 and the presvimption omnia rite 
 esse acta was strengthened by the 
 conduct of the testator, which, 
 showed an anxious and intelligent 
 desire to do everything regularly, 
 that presumption was not rebutted 
 by the evidence of the witnesses- 
 who appeared to have been nerv- 
 ous and confused on the occasion 
 of the attestation, and whose recol- 
 lection of w'hat took place was 
 evidently imperfect. So, too, in 
 Daintree v. Fasulo, 13 P. D. 67, 102, 
 Butt, J., in holding that a codicil 
 was entitled to probate in a case 
 in which the witnesses were not 
 aware that the paper was a testa- 
 mentary paper, and had no clear 
 recollection as to the signature, 
 points out that his decision is in 
 accordance with that of Sir H. 
 Jenner Fust in the case of In the 
 goods of Thomson, 4 Not. of Cas. 
 643, and that that case notwith- 
 standing the observations of Lord 
 Penzance in Pearson v. Pearson, 
 L. E. 2 P. & D. 451, was not in- 
 consistent with the decision of the 
 Privy Council in Ilott v. Genge, 
 4 Moo. P. C. 265, because the 
 leading feature in Ilott v. Genge, 
 viz., that the witnesses were not 
 allowed to see the testator's signa- 
 ture, which was covered up, did 
 not exist in the case of In the 
 goods of Thomson. This view 
 was affirmed in the Court of 
 Appeal. 
 
 It will be observed that, in tlie 
 case (if Blake r. Blake also, the
 
 CIj. II. § 11. J Oftlic Attestation of Wills. 
 
 acknowledgment of liis signature (/■) : But not where tkey 
 are unable to see the signature, and the testator merely calls 
 them in to sign, without giving them any explanation of the 
 instrument they are signing (s). So in a case before Sir C. 
 Cresswell, the witnesses were invited by the testator to mtness 
 his signature on a paper which appeared to them to be a blank : 
 They saw no writing whatever on it, and the signature they 
 witnessed was on the fourth side of a sheet of paper folded in 
 the middle : On the first side of that sheet, when the paper 
 was produced for probate, there appeared to be a codicil ; but 
 there was no evidence that anything was written on the paper 
 
 77 
 
 signature was covered up. It 
 may Le that there is a distinction 
 between the rule in the cases where 
 the testatoracknowledges his signa- 
 ture, and in cases where he signs 
 in the presence of the witnesses, 
 as to what opportunity or possi- 
 bility there must be of the witnesses 
 seeing what it is that is written. 
 See Smith v. Smith, L. E. 1 P. & D. 
 143. On tlie application of the 
 maxim " omnia pnesumuntur rite 
 esse acta," see Woodhouse v. Bal- 
 four, 13 P. D. 2, and^^os^ 2'- 91. 
 
 (r) In the following cases there 
 Avas held to be a sufficient acknow- 
 ledgment : Gaze v. Gaze, 3 Curt. 45 1 . 
 Blake v. Knight, ib., .547. Keigwin 
 V. Keigwin, ib., 607. In the goods 
 of Davis, ib., 748. In the goods 
 of Ashmore, ib., 756. Cooper v. 
 Bockett, 3 Curt. 649 ; 4 Moo. P. C. 
 419. In the goods of Thomson, 
 4 Not. of Cas. 643. Leech v. Bates, 
 Not. of Cas. 704. Faulds v. 
 Jackson, 6 Not. of Cas. Supp. 1. 
 Burgoyne v. Showier, 1 Rob. 12. 
 Bosanquet v. Bosanquet, 2 Rob. 
 577. Lloyd v. Roberts, 12 Moo. 
 P. C. 158. Gwillim v. Gwillim, 3 
 Sw. & Tr. 200. Yinnicoinbe v. 
 Butler, 3 Sw. & Tr. 580. Beckett v. 
 Howe, L. R. 2 P. & D. 1. Inglesant 
 V. Inglesant, L. R. 3 P. & D. 172. 
 
 Daintree v. Fasulo, 13 P. D. 67, 
 102. It is not necessary that a tes- 
 tator should state to the witnesses 
 that it is his signature : the produc- 
 tion of a Will by a testator, it hav- 
 ing his name upon it, and a request to 
 the witnesses to attest it, would be a 
 sufficient acknowledgment of the 
 signature under the statute : Ilott 
 V. Genge, 3 Curt, 172, 175, j^er Sir 
 H. Jenner Fust. See also Blake 
 V. Knight, ibid. 563, 564. In the 
 goods of Thomson, 4 Notes of Cas. 
 643. Leech v. Bates, 6 Notes of 
 Cas. 704, by Sti- H. Jenner Fust. 
 The like was held where the testa- 
 tor had intimated to the same 
 eft'ect by gestures : In the goods of 
 Davies, 2 Robert. 337. The request 
 of another person in the presence 
 of the testator may be equivalent 
 to a request by the testator him- 
 self. Faulds V. Jackson, 6 Notes 
 of Cas. Suppl. 1. Re Jones, Dea. 
 & Sw. 3. Inglesant v. Inglesant, 
 L. R. 3 P. & D. 172. 
 
 (s) In the following cases there 
 was held to be vo sufficient ac- 
 knowledgment; Ilott V. Genge, 3 
 Cart. 160 (affirmed in Privy 
 Council, 4 Moo. P. C. 265). Hud- 
 son V. Parker, 1 Rob, 14. In the 
 goods of Summers, 2 Rob. 295. 
 Croft V. Croft, 4 Sw. & Tr. 10. In
 
 78 
 
 Of the Form, dec. oj making a Will. [Pt. i. Bk. il. 
 
 the attestiition 
 must be after 
 the testator 
 has signed or 
 acknowledged 
 his signature 
 to both the 
 
 before the signatures were put there : And on that ground, the 
 learned judge, after consideration, refused to admit the paper 
 to probate {t). 
 
 It may here be observed, that the Wills Act further enacts, by- 
 sect. 13, " that every will executed in manner hereinbefore men- 
 tioned shall be valid without any other publication thereof.'^ 
 And it has been said (u), that the result of this enactment 
 that the testator need not inform the witnesses of the 
 
 IS 
 
 nature of the instrument they are attesting, and that even if 
 he deceives them and leads them to believe that it is a deed, 
 and not a Will, the execution is good notwithstanding. 
 
 Again, in the construction of the Statute of Frauds, it was- 
 held that the Act did not require that the witnesses should 
 subscribe in the presence of each other, but that they might 
 attest the execution separately, at diflerent times (r). But 
 
 the goods of Swinford, L. R. 1 P. 
 & D. 630. Pearson v. Pearson, 
 L. K 2 P. & D. 451. Morritt v. 
 Douglas, L. Pv. 3 P. & D. 1. 
 Fischer v. Popham, L. R. 3 P. & 
 D. 246. Bhxte v. Blake, 7 P. 
 D. 102. It is not sufficient merely 
 to produce the paper to the wit- 
 nesses where it does not appear 
 that the signature of the testator 
 was affixed to it at the time. 
 Ilott V. Genge, 3 Curt. 160, 181, 
 per Sir H. Jenner Fust. In tlie 
 goods of Ashton, 5 Not. of Cas. 548. 
 (i) In the goods of Hammond, 
 3 Sw. & Tr. 90. It will he seen 
 from the cases cited above that 
 evidence is admissible as to 
 whtther the signature of the testa- 
 tor was on the Will at the time of 
 attestation. But sometimes it 
 happens that no direct evidence is 
 forthcoming. In such cases the 
 Court is at liberty to judge from 
 the circumstances of the case 
 ■whether it was probable that the 
 nr.me of t' e testator was on the 
 
 "Will at the time of attestation* 
 In the goods of Huckvale, L. R. 
 1 P. & b. 375. In the goods of 
 Pearn, 1 P. D. 70. The fact that 
 there is an attestation clause in 
 the proper form would seem itself 
 to be some evidence that the name 
 of the testator was on the Will at 
 the time of attestation. In the 
 goods of Huckvale (ubi svp.). In 
 the goods of Pearn {tibi sup.). 
 Wright r. Rogers, L. R. 1 P. & D. 
 678. Woodhouse v. Balfour, 13- 
 P. D. 2. See further on this point,. 
 Smith V. Smith, L. R. 1 P. & D. 
 143. But the existence of an 
 attestation clause is not conclusive. 
 In the goods of Swinford, L. R. 1 
 P. & D. 630. Croft v. Croft, 4 
 Sw. & Tr. 10. Fischer v. Popham, 
 L. R. 3 P. & D. 246. 
 
 («) Sugden' Essay, p. 140, citing 
 Trimmer r. Jackson, 4 Burn, E. L. 
 130. British Museum v. White, 3 
 Moo. & P. 689. 
 
 (r) Ellis V. Smith, I Yes. Jun. 
 12.
 
 Ck. II. § II.] Of the Attestation of Wills. 79 
 
 the Wills Act makes it necessary that both the witnesses witnesses being 
 
 to the Will shall be present, at the same time, when the samrtime \ ° 
 
 signature is made or acknowledged by the testator. And they and they must 
 
 must attest in the presence of the testator, though not of each presfnJe of the 
 
 other (x). And it appears to be now fully established that tf^tator, 
 
 though not of 
 
 the Act is not complied with, unless both ivitnesses shall each other : 
 attest and subscribe after the testator's signature shall have 
 been made or acloiowledged to them when hoth are actually 
 present at the same time {y). And if one of the witnesses 
 has subscribed before the testator signs or acknowledges his 
 signature in the presence of both, and the other witness alone 
 then subscribes in the presence of the former witness and the 
 testator, this is not sufficient even though the former witness 
 then expressly acknowledges the signature which he has 
 previously made : For the Act says that the testator may 
 acknowledge his signature ; but does not say that the witnesses 
 may acknowledge their subscriptions. Thus, in Moore v. 
 King (z), a testator signed a codicil in the presence of a 
 witness (his sister) who, at his desire, attested and subscribed 
 it : On a subsequent day, when the sister and another person 
 were present, he desired her to bring him the codicil, and 
 requested the other person present to attest and subscribe it, 
 saying in the presence of both parties and pointing to his 
 signature, " This is a codicil signed by myself and by my 
 sister, as you see ; you will oblige me, if you will add your 
 
 (x) Cooper v. Bockett, 3 Curt. of Allen, 2 Curt. 331. In the 
 
 659, per Sir H. Jenner Fust. goods of Olding, 2 Curt. 865. In 
 
 Faulds V. J ackson, 6 Notes of Cas. the goods of Simmonds, 3 Curt. 
 
 Suppl. 1. In the goods of Webb, 79. In the goods of Byrd, 3 Curt 
 
 Dea. & Svv. 1. In Casement v. 117. Pennant v. Kingscote, 3 
 
 Fulton, 5 Moo. P. C. (1 130, the Curt. 643, 647. Hindmarsh v. 
 
 same Court held (without advert- Charlton, 8 H. of L. 160. The 
 
 ing to their previous decision) that words of the Act are prospective, 
 
 the witnesses must attest in the such witnesses "shall attest and 
 
 presence of each other. This case, shall subscribe the Will in tlie 
 
 however, has not been followed. presence of the testator : " 3 Curt. 
 
 (y) Moore v. King, 3 Chirt. 243. 660, per Sir H. Jenner Fust. S^jU A^Tt/yi^.v /^a^ 
 Cooper V. Bockett, ihul. 648. 4 Moo. (2) 3 Curt. 243. '(/S9t) "^^ 
 
 P. C. 419. See also In the goods
 
 BO Of the Form, &c. of making a Ti^ill [Pt. i. Bk. ii. 
 
 signature, two witnesses being necessary : " That party then 
 subscribed in the presence of the testator and his sister, the 
 latter who was standing by him, ijointlng to her signature and 
 saying, " There is my signature, you had better place yours 
 underneath : " She did not, however, re-subscribe : And it was 
 held by Sir H. Jenner Fust, that the instrument was not suffi- 
 ciently attested under the new statute, 
 vhat is to Le It will be observed that the provision of the Statute of 
 
 considered as 
 
 the presence of Frauds, requiring that the witnesses shall attest and subscribe 
 in the presence of the testator, is continued in the statute of 
 Victoria, and as the language in both the Acts is the same 
 in this respect, it should seem that the decisions which have 
 taken place as to the former will govern the construction of 
 the latter. The result of them is, that it is not requisite that 
 the testator should actually see the witnesses sign, but that it 
 is sufficient if he might have seen them if he chose to look (a). 
 Thus where a Will was executed by the testatrix in her 
 carriage and the witnesses subscribed in the attorney's office, 
 opposite to the window of which the carriage was, so that she 
 might have seen them through the window while subscribing, 
 it was held that the statute was satisfied (h). But where the 
 witnesses signed in an adjoining room to that in which the 
 testator was, and the door between them was open, but he 
 was not in such position that he could see them, it was held 
 that the attestation was ill (c). In a case in the Prerogative 
 Court (d), where the question arose on a Will made after 
 the Wills Act came into operation, the witnesses had attested 
 in the room where testator was lying in bed with the bed- 
 curtains closed around him, so that he could not, for that 
 
 (a) SHres v. Glascock, 2 Salk. Enss. 441. Held, .4 ccord since the 
 
 G88. Day ij. Smith, 3 Salk. 395. WillsAct, In the goods of Newman, 
 
 Todd r. Winchelsea, M. & Malk. 1 Curt. 914. In the goods of 
 
 ] -2. Ellis, 2 Curt. 395. In the goods 
 
 (6) Casson v. Dade, 1 Bro. C, C. of Colman, 3 Curt, 118. Jenner 
 
 99. V. Ffinch, 5 P. D. 106. 
 
 (c) Doe V. Manifold, 1 M. & S. (d) Newton v. Clarke, 2 Curt. 
 
 249. Winchelsea v. "Wauchope, 3 320.
 
 Ch. ir. § II.] Oftlic Attestation of Wills. 81 
 
 reason, have seen the witnesses while they were subscribing ; 
 Sir H. Jenner Fust was of opinion that where a paper is exe- 
 cuted by the deceased in the same room where the witnesses 
 are, who attest it in the same room where the testator was at 
 the time, they do attest it in the presence of the testator, 
 though he may not actually see them sign : The Will was 
 accordingly admitted to probate. But in a subsequent 
 case in the same Court (e) , where the testatrix lay with the 
 curtain closed, and her back to the attesting witnesses when 
 they subscribed, and it appeared that she could not by pos- 
 sibility have seen them do so, even if the curtains had not 
 been closed, by reason of her inability, from her state of 
 weakness, to have turned herself in her bed into a position 
 in which she could have seen them sign, the same judge held 
 that the statute was not complied with, and he distinguished 
 the case from the former one where the testator could have 
 seen but that the curtains were closed ; And the learned 
 judge added that in the present case there would have been 
 no difference, in principle, if the witnesses had signed the 
 Will down-stairs. Sir John Dodson held that where the 
 subscription of the witnesses takes place in a different room 
 from that in which the testator is, he must be proved to have 
 been in a position whence he could have seen the witnesses 
 as they subscribed their names (/). 
 
 Though the testator was blind, yet it must be shown that 
 he could have seen the witnesses sign, had he had his eye- ■ 
 sight {g). 
 
 The Wills Act provides ( r/r/) that "no form of attestation "«' ^orm of 
 
 '■ w^/ ^ ^ attestation 
 
 shall be necessary." It is, therefore, sufficient if the wit- necessary. 
 
 {c) Tribe v. Tribe, 7 Notes of The testator must, it would seem, 
 
 Cas. 132. S. C. 1 Robert. 775. be conscious of the presence of the 
 
 (/) Norton v. Basset, Dea. & Sw. attesting witnesses : Right v. Price, 
 
 259. In the goods of Trinmel, 11 Doug. 241. In the goods of Kel- 
 
 Jurist, N. S. 248, 249, Sir J. P. lick, 3 Sw. & Tr. 578 ; Jenner v. 
 
 Wilde laid it down that the true Ffinch, 5 P. D. 106. 
 test is, whether the testator might {g) In the goods of Piercy, 1 
 
 have seen, not whether he did see Robert. 278. 
 the witnesses sign their names. {(j(j) Section 9. 
 
 W.E. — VOL. I. G
 
 82 0/ the Form, &c. of making a Will. [Pt. i. Bk. ii. 
 
 nesses, without any attestation clause of any description, 
 merely subscribe their names (h). But it must be observed, 
 that unless there is an attestation clause, reciting that the 
 formalities prescribed by the Act have been complied with, 
 the executor cannot obtain probate in the usual way on his 
 own oath alone ; but must produce an affidavit from one of 
 the attesting witnesses, or some other satisfactory evidence 
 showing that the solemnities have been performed as required 
 by the statute (/)• 
 the witnesses The decisions (k) on the construction of the Statute of 
 
 nitiv subscril'G 
 
 by mark : Frauds appear to make it clear that in the case of the 
 
 witnesses, as well as of the testator (0, a subscription by 
 mark is sufficient, notwithstanding the witness be able 
 to write. And these decisions have been followed, in the 
 Ecclesiastical Court, in the construction of the Wills Act (m). 
 or with a So where a Will was attested by one witness in his own 
 
 guided hand : i^andwriting, and he also held and guided the hand of a 
 second witness, who could not write or read, and in this 
 way the second witness's name was written as attesting 
 witness, the testator having desired the two to attest; 
 this was held a sufficient attestation under the Wills 
 
 (h) Bryan v. White, 2 Robert, Cas. 274. See also Hindmarsli v. 
 315. An attestation clause forms Charlton, 8 H. of L. 160. The 
 no part of a [Will or] codicil even initials of the witnesses may con- 
 when written by the testator, and, stitute a sufficient subscription and 
 therefore, a recital by mistake in attestation, if made by them for 
 an attestation clause to a codicil their signatiu-es as attesting the 
 that a former codicil was cancelled execution : In the goods of Chris- 
 does not revoke that codicil : In tian, 2 Robert. 110. So also the 
 the goods of Atkinson, 8 P. D. 165. initials of a testator and the attest- 
 
 (i) See }wst, Pt. i. Bk. iv. Ch. ii. ing witnesses in the margin of the 
 
 § III. : and see the Rules of 1862 & will opj^osite interlineations are 
 
 1871 (non-contentious), Nos. 4, 5, sufficient to render the interlinea- 
 
 6 and 7. tions valid under Section 21 of 
 
 {k) Harrison v. Harrison, 8 Ves. the Wills Act ; In the goods of 
 
 185. Addy v. Grix, ibid., 504. Blewitt, 5 P. D. 116 ; though the 
 
 (I) See Baker v. Dening, 8 A. & initials of the witnesses in the 
 
 E. 94, ante, p. 64. margin, if merely placed to attest 
 
 (m) In the goods of Ashmore, 3 the alteration, will not serve as an 
 
 Curt. 756. In the goods of Amiss, attestation to the will itself : In the 
 
 2 Robert. 116. S. C. 7 Notes of goods of Martin, 1 Robert. 712.
 
 Ch. II. § II.] Of the Attestation of Wills. 
 
 83 
 
 Act (w). But an attestation by sealing will not satisfy the 
 statute (o). 
 
 It has been decided several times that, in the case of a 
 witness, an acknowledgment by him of his previously sub- 
 scribed signature is not a sufficient compliance with this 
 Act {p). Accordingly where an attesting witness to a Will, 
 on the re-execution thereof by the testator, merely traced 
 over his previous signature with a dry pen. Sir H. Jenner 
 Fust held that this amounted to no more than to an acknow- 
 ledgment of the signature, which had been held not to be a 
 sufficient compliance with the statute, inasmuch as it requires 
 the witness to subscribe the Will (q). And it is now settled 
 by the decision of the House of Lords (r), that to make a 
 valid subscription and attestation there must be either the 
 name of the witness, or some mark intended to represent 
 it (s). It was further held in that case that a correction of 
 
 but not by 
 seal : 
 
 acknowledg- 
 ment of signa- 
 ture not suffi- 
 cient : 
 
 tliere must be 
 either the 
 name of the 
 witness or a 
 mark intend- 
 ing to repre- 
 sent it : 
 
 (n) Harrison v. Elvin, 3 Q. B. 
 117. In the goods of Frith, 1 Sw. 
 & Tr. 153. Lewis v. Lewis, 2 Sw. 
 & Tr. 153. But the one witness 
 cannot subscribe for the other : In 
 the goods of White, 2 Notes of Cas. 
 461. In the goods of Leveriugton, 
 11 P. D. 80. The desire that 
 another shoiild sign for a witness 
 cannot be construed to be a sub- 
 scription by that witness, even 
 though he cannot write ; for he 
 might make his mark : In the 
 goods of Cope, 2 Robert. 335. So 
 in a case where the two attesting 
 witnesses, who were able to write, 
 hekl the top of the pen, whilst 
 another person (the di-awer of the 
 Will} wrote their names, Sir H. J. 
 Fust rejected the motion for Pro- 
 bate, and observed, that where a 
 person's hand is guided, tlie act is 
 his own, but that here another 
 person signed the names of the 
 witnesses : In the goods of Kilcher, 
 6 Notes of Cas. 15. 
 
 (o) In the goods of Byrd, 3 Curt. 
 117. 
 
 (j)) Moore v. King, 3 Curt. 253. 
 
 (q) Playne v. Scriven, 1 Robert. 
 772 : In the goods of Maddock. 
 L. R. 3 P. & D. 169. Where the 
 deceased executed his Will in the 
 presence of two witnesses, one of 
 whom also made his mark in 
 attestation of the signature of the 
 deceased, and the second witness 
 then wrote the names of the 
 deceased and the witness opposite 
 their respective marks, and also the 
 word " witness," but did not sub- 
 scribe his own name, the Court 
 held that he did not by any word 
 he wrote attest the signature of the 
 deceased, and that the execution 
 was invalid : In the goods of 
 Eynon, L. R. 3 P. & D. 92. 
 
 (r) Hindmarsh v. Charlton, 8 
 H. of L. 160, affirming the decision 
 of Sir 0. Cress well, 1 Sw. & Tr. 433. 
 
 (s) A witness need not sign his 
 o.vn name if the name actually 
 G 2
 
 84 
 
 Of the Form, &c. ofmcd-inga Will [Pt. i. Bk. ii. 
 
 in xvlmt part of 
 the Will tliey 
 must fub- 
 sciibe : 
 
 an error in the previous writing of his name, or his acknow- 
 ledgment of it, or the adding a date to it, will not be 
 sufficient for this purpose (t). 
 
 The Act, though it requires that the testator shall sign the 
 "Will at the foot or end of it, is silent as to the part of the 
 instrument where the witnesses shall subscribe. It was said 
 by Dolben, J., in Lea v. Lihh (ii), with reference to the Statute 
 of Frauds, that if a Will is written on different sheets of 
 paper, and each of the three wdtnesses subscribe on a different 
 sheet, it is a good subscription within that statute. If this 
 be good law, it should seem to be equally applicable to the 
 Statute of Victoria. And it has been held, accordingly, 
 in several cases in the Ecclesiastical Court that it matters not^ 
 under that statute, in what part of the "STill the attesting 
 witnesses sign their names ; provided it appears that the 
 signatures were meant to attest the requisite signature of the 
 testator (a-) . The same question was decided, after full con- 
 sideration, by the Court of Queen's Bench, in the case of 
 
 subscribed be intended to repre- 
 eent his name : He Oliver, 2 
 Eccl. & Adm. 57. But a "Will 
 signed by the deceased in the pre- 
 sence of two persons, one of whom 
 subscribed it with his own name, 
 and the other with the name of her 
 husband was refused probate : In 
 the goods of Leverington, 11 P. 
 D. 80. The signing of a Christian 
 name if not intended as a perfect 
 signature is not sufhcient : In the 
 goods of Maddock, L. K. 3 P. & D. 
 169. But where the witness sub- 
 scribed "Servant to Mrs. Sper- 
 ling," but without any name ; this 
 was held a sufficient attestation : In 
 the goods of Sperling, 3 Sw. & Tr. 
 272. See further as to what is a 
 sufficient attestation, Griffiths v. 
 Griffiths, L. R. 2 P. & D. 300. 
 
 (() And in a case where an 
 attesting witness to a Will which 
 had once been duly executed. 
 
 attested a second execution of the 
 same Will by no other act than by 
 writing the word "Bristol" (the 
 name of the city), at the end of her 
 name and the name of the street in 
 which she dwelt (wliich she had 
 written when she attested the 
 former execution), it was held by 
 Sir H. Jenner Fust that the latter 
 attestation was insufficient : In 
 the goods of Trevanion, 2 Bob. 
 311. 
 
 (it) Garth. 37. 
 
 (x) In the goods of Davis, 3 
 Curt. 748. In the goods of Cham= 
 ney, 1 Bobert. 757. But where 
 there were two testamentary instru- 
 ments, it was held not sufficient 
 for the witnesses to subscribe their 
 names at the end of the first of 
 them alone, notwithstanding they 
 were both written on the same 
 sheet of paper : In the goods of 
 Taylor, 2 Bobert. 411. And where
 
 Oh. II. § II.] Of the Attestation of Wills. 85 
 
 lioberts v. Pliilllps (i/), upon the language of the Statute of 
 Frauds, which requires that a Will of lands shall be "attested 
 and subscribed" by the witnesses: It was thereupon con- 
 tended, that the primary meaning of the word "subscribed" 
 is icritten under and that it must here mean written under the 
 concluding words of the Will, and signature of the testator, 
 and so preventing any spurious additions after the execution : 
 But the Court held that the word " subscribed " might 
 well be understood as merely denoting a signing of the name 
 without any reference to the part of the paper on which the 
 name is to be written ; and that the requisition as to the 
 Will being subscribed by the witnesses was complied with> 
 where the witnesses, who saw it executed by the testator, 
 immediately signed their names on any part of it at his 
 request with the intention of attesting it. — This decision is 
 plainly applicable to the construction of the word "subscribe" 
 in the Wills Act. 
 
 No provision is contained in the Act as to Wills written on attestation of 
 several sheets. And, therefore, in this respect also, the de- ^^ soverid"^"^ 
 cisions on the construction of the Statute of Frauds appear ^l^eets : 
 to be authorities : And, they have established that if a Will be 
 written on several or even separate sheets, and the last alone 
 be attested, the whole Will is well executed, provided the 
 whole be in the room, and although a part may not have been 
 seen by the witnesses ; and that it is a question for a jury 
 whether all the papers constituting the Will were in the 
 room ; and further, that the presumption is in the affirma- 
 tive (s). But where a Will was signed by the testator and 
 
 an intended Will was written in where the attesting witnesses to a 
 
 duplicate, one copy of which was will signed their names in the 
 
 signed only by the testator, and the margin of the first and second 
 
 other only by the attesting wit- sheets opposite to certain amend- 
 
 nesses, it was held that neither ments. 
 
 paper was entitled to probate : In (z) Bond t). Seawell, 3 Burr. 1773. 
 
 the goods of Hatton, 6 P. D. 204. Gregory v. The Queen's Proctor, 4 
 
 (y) 4 E. & B. 450. This case Notes of Cas. 620, 639. Marsh v. 
 
 was followed in the case of In the Mai'sh, 1 >Sw. '-t Tr. 528. In cases 
 
 goods of Streatley [1891] P. 172, where the attestation is not on the
 
 86 
 
 Of the Form, d-c. of making a Will. [Pt. i. Bk. ii. 
 
 also by two witnesses in the margin of the first four sheets, 
 but in the fifth and last sheet the signature of the testator 
 alone appeared, probate of the Will was refused, the Court 
 (Sir J. Dodson) being of opinion that the signatures on the 
 earlier sheets were intended merely to guard against other 
 sheets being interpolated, and there being nothing to show- 
 that the signatures in the margin were intended to attest that 
 sisfuature of the testator which alone would give efl"ect to the 
 paper as a Will {a). 
 
 Again, the authorities with respect to the Statute of Frauds 
 appear to apply to the Wills Act, upon the question, whether 
 to V a Will or an unattested Will or other paper may be rendered valid as a 
 testamentary disposition, by being referred to and adopted by 
 a Will or codicil properly attested. Those authorities have 
 established, that if the testator, in a Will or codicil or other 
 testamentary paper duly executed, refers to an existing un- 
 attested Will or other paper, the instrument so referred to 
 becomes part of the Will {li). But the reference must be 
 
 in what cases 
 unattesterl 
 papers referred 
 
 executed be- 
 come a part 
 of it. 
 
 same sheet of paper as the signature 
 of the testator the attestation must 
 be on a paper physically cf^nnected 
 ■with that sheet : In the goods of 
 Braddock, 1 P. D. 433. At all events 
 this must be so where the paper, 
 which has not on it the attestation, 
 is a codicil or other testamentary 
 document complete in itself : In 
 the goods of Pearse, L. R. 1 P. & D. 
 382 ; In the goods of Hatton, 6 P. 
 D. 204. 
 
 (a) Ewen v. Franklin, Dea. & 
 Sw. 7. See Accord. Phipps v. 
 Hale, L. R. 3P. & D. 166. 
 
 (6) Habergham r. Vincent, 2 Ves. 
 228. Utterton v. Robins, 1 A. & E. 
 423. Doe v. Evans, 1 Cr. & M. 42. 
 The intention to incorporate must 
 be clear and the document, it would 
 seem, should be of a testamentary 
 character : In the goods of Hub- 
 bard, L. R. 1 P. & D. 53, but 
 
 comp. Bizzey v. Flight {uhi infra). 
 Where a Will (dated in 1841) re- 
 voking all former AVills referred to 
 a clause in a former Will, Sir H. 
 Jenner Fust refused to grant pro- 
 bate of so much of the former 
 Will as was necessary to explain 
 the latter Will : In the goods of 
 Sinclair, 3 Curt. 746. However, 
 where a Will expressly annulling 
 all former Wills nevertheless 
 referred to a prior Will put up in 
 the same box with the present, 
 " that in so far as any of the pro- 
 visions therein contained may 
 be applicable to existing circum- 
 stances at the time of my death, 
 they may be carried into effect, 
 and I recommend them accord- 
 ingly with this view to the con- 
 sideration of my executors," the 
 same learned judge held that pro- 
 liate must be taken of the two
 
 CIi. II. § II.] Of the Attestation of Wills. 
 
 87 
 
 distinct, so as, with the assistance of parol evidence when 
 necessary and properly admissible, to exclude the possibility 
 of mistake {c) ; and the paper referred to must be already 
 written {d). Accordingly, in De Zichy Ferraris v. Lord 
 
 papers as together containing the 
 Will : In the goods of Duff, 4, 
 Notes of Cas. 274. See also, In 
 the goods of Bangham, 1 P. D. 
 429. The principles and practice, 
 as to incorporating, m the probate of 
 Wills of personalty, papers suffi- 
 ciently referred to by such Wills 
 but not per se testamentary, are 
 fully discussed and explained in 
 the judgment of Dr. Lushington, 
 in Sheldon v. Sheldon, 1 Robert. 
 81 ; Bizzey v. Flight, 3 C. D. 269 ; 
 In the goods of Howden, 43 L. J. 
 P. & M. 26. In theory the incor- 
 porated document should always 
 be included in the probate, but in 
 practice the Court does not always 
 insist on this, notably where the 
 paper referred to is in the hands of 
 another party who will not part 
 with it, and the Court has no 
 power to order its production : In 
 the goods of Battersbee, 2 Rob. 
 439 ; In the goods of Sibthorp, L. 
 R. 1 P. & D. 106 ; or where the 
 document is bulky : In the goods 
 of Lanadowne, 3 Sw. & Tr. 194 ; 
 In the goods of Dundas, 32 L. J. 
 P. & M. 16j ; nor does it insist on 
 including the whole where part 
 only is material : In the goods of 
 Limerick, 2 Rob. 313. As to the 
 incorporation of foreign Wills, see 
 In the goods of Howden, 43 L. J. 
 P. & M. 26 ; In the goods of Astor, 
 1 P. D. 150. 
 
 (c) Where a Will refers to a 
 paper, such paper cannot be in- 
 corporated with the Will unless it 
 be clearly identified with the 
 
 description of it given in the Will 
 and be shown to have been in 
 existence at the time the Will was 
 executed. Both these matters 
 must be established, and though 
 there may be no doubt about the 
 former, unless the latter also is 
 proved there can be no incorpora- 
 tion of the paper with the Will : 
 Singleton v. Tomlinson, 3 App. 
 Cas. 404 ; In the goods of Kehoe, 
 13 L. R. Ir. 13, Prob. The follow- 
 ing are some of the principal cases 
 on the sufficiency of the proof of 
 identity : Smart v. Prujean, 6 Ves. 
 565 ; Dillon v. Harris, 4 Bligh, N. 
 S. 321. In the goods of Smith, 2 
 Curt. 796. In the goods of Greaves, 
 1 Sw. & Tr. 250. In the goods of 
 Almosnino, 1 Sw. & Tr. 508. In 
 the goods of Drummond, 2 Sw. & 
 Tr. 8. In the goods of AUnutt, 3 
 3 Sw. & Tr. 167. In the goods of 
 Brewis, 3 Sw. & Tr. 473. Dickin- 
 son V. Stidolph, 11 C. B., N. S. 
 341. In the goods of Luke, 34 
 L. J., P. & M. 105. Van Strau- 
 benzee v. Monck, 3 Sw. & Tr. 6. 
 In the goods of Sunderland, L. R. 
 1 P. & D. 198. In the goods of 
 Lady Truro, ibid. 201. In the 
 goods of Watkins, L. R. 1 P. & 
 D. 19. In the goods of Dallow, 
 ibid. 189. In the goods of Gill, L. 
 R. 2 P. & D. 6. In the goods of 
 Mercer, L. R. 2 P. & D. 91. In 
 the goods of Heathcote, 6 P. D. 30. 
 In the goods of Daniel!, 8 P. D. 
 14. /i" -<> ':..:U. 
 
 ((/) The following are some of tlie 
 cases as to the necessity of the in-
 
 88 
 
 Of the Form, etc. of makiny a Will. [Pt. i. Bk. ii. 
 
 Hertford {c), where a testator by Will, duly executed, directed 
 his executors to pay legacies which he should give by any 
 testamentary writing signed by him, whether witnessed or not, 
 it was held that such a clause could not give effect to legacies 
 bequeathed by an unattested paper made after the Wills Act 
 came into operation. — Again, in the same case, it appeared 
 that the testator, before Jan. 1, 1838 (at which date the Wills 
 Act came into operation) had made a Will and several codicils, 
 some duly executed, others only signed by the testator : After 
 Jan. 1, 1838, he made and signed a codicil (B), but the same 
 was not duly attested : Afterwards, by a codicil (C), duly 
 executed and attested, he ratified and confirmed his Will and 
 ''codicils :'' And it was held that the unattested codicil (B) 
 was not so identified with the duly attested codicil (C) as to 
 be ratified by, or incorporated with it; the word " codicils" 
 being more completely and properly applicable to the codicils 
 which had been made before Jan. 1, 1838 (/). But in 
 Ingoldhy v. Ingoldhy (g), where a testator made a codicil to 
 
 corporated paper being already in 
 (existence. Wilkinson, v. Adam, 1 
 Ves. & B. 445. Uttertonu Kobins, 
 1 A. & E. 423. In the goods of 
 Gill, L. R. 2 P. & D. 6. Singleton 
 V. Tomlinson, 3 App. Gas. 404. A 
 testamentary paper duly executed 
 in order to incorporate another 
 must refer to it as a written instru- 
 ment then existing in such terms 
 that it may be ascertained. Smart 
 V. Prujean, 6 Ves. 56.5. Van 
 Straubenzee v. Monck, 3 Sw. & Tr. 
 (). In the goods of Sunderland, 
 L. E. 1 P. & D. 198. The republi- 
 cation of a Will by the execution of 
 a codicil will not of itself entitle an 
 unexecuted paper written or signed 
 between the date of the Will and 
 the date of the codicil to probate. 
 But where the WiU, if read as 
 speaking at the date of the exe- 
 cution of the codicil, contains 
 
 language which would operate as 
 an incorporation of the document 
 to which it refers, such document 
 although not in existence until 
 after the execution of the Will is 
 entitled to probate by force of the 
 codicil. In the goods of Truro, L. 
 R. 1 P. & D. 201. In the goods ot 
 Stewart, 3 Sw. & Tr. 192. In the 
 goods of Matthias, 3 Sw. & Tr. 100. 
 
 (e) 3 Curt. 468. S. G., on appeal, 
 4 Moo. P. G. 339, nomine Groker 
 V. Lord Hertford. 
 
 (/) See also Accord. Haynes v. 
 Hill, 1 Robert. 795. In the goods 
 of Phelps, 6 Notes of Gas. 695. In 
 the goods of Hakewell, Dea. & Sw. 
 14. In the goods of Matthias, 3 Sw. 
 & Tr. 100. 
 
 {g) 4 Notes of Ga-s. 493. Just as 
 a codicil which republishes a 
 former Will, mar, if the words of 
 reference are sufficiently clear.
 
 Cli. II. § II.] Oftlic Attestation of Wills. 89 
 
 his Will in 1845, attested by one witness, and the day before 
 his death dictated a paper (which was afterwards duly exe- 
 cuted according to the Wills Act) as " another codicil to my 
 Will," without more specifically referring to the defectively 
 executed instrument, it was held that both codicils were en- 
 titled to probate : And Sir H. Jenner Fust distinguished, in 
 delivering his judgment, this case from that of Lord Hertford, 
 where there were codicils duly executed and codicils not duly 
 executed ; there being in the present case only one paper 
 which came under the description of codicil, and no other 
 paper to which the testator could have referred under that 
 description. 
 
 The decision in Lord Hertford's case of the former of the A Will cannot 
 points above mentioned appears to have applied, under the of disposition'^ 
 existing law, to testamentary dispositions of all kinds, the ^^ 'V"t*^T 
 doctrine which had been already established as to devises of paper, 
 real estate under the Statute of Frauds, viz., that a testator 
 cannot by his Will prospectively create for himself a power 
 to dispose of his property by an instrument not duly executed 
 as a Will or codicil {h). 
 
 The doctrines above stated as to the incorporation of un- 
 
 incorporate not only the repub- was of opinion that the writing was 
 lished Will, but also documents not parcel of the Will, so as either 
 not in existence at the date of the to be part of that which was duly 
 execution of the republished Will, executed by the signature at the 
 so a later testamentary paper may foot or end thereof, or so part of it 
 entitle to probate a prior iniper- as to invalidate the execution as 
 fectly executed testamentary paper: not comislying with the Wills Act, 
 but this is, as appears from the see ante, p. 71, note {d). The fact 
 text, merely an instance of incor- that the codicil is on the same 
 poration, and subject to the same paper is not of itself sufficient to 
 rules, see In the goods of Truro, incorporate it. In the goods of 
 L. R. I P. & D. 201. The question Brewis, 3 Sw. & Tr. 473. In the 
 of incorporation may arise in respect goods of Watkins, L. R. 1 P. & D. 
 of testamentary writings appearing 19 ; nor are the words " This is a 
 on the duly executed paper, see fourth codicil to my Will," although 
 In the goods of Heathcote, 6 P. D. the unexecuted codicil commenced 
 30. In the goods of Watkins, " This is a third codicil " : Stockil 
 L. R. 1 P. & D. 19. In the v. Punshon, 6 P. D. 9. See how- 
 goods of Dallow, L. R. 1 P. & ever, In the goods of Heathcote, 
 I). 189, but this question in such 6 P. D. 32, per Hannen, P. 
 cf.se would only aii.-e if the Court (/)-) Johnson v. Ball, 5 De G. &
 
 90 
 
 Of the Form^ dec. of making a Will. [Pt. i. Bk. ir. 
 
 Parol evidence 
 admissible to 
 identify the 
 reference. 
 
 Will referring 
 to two memo- 
 randums and 
 where one only 
 can be found. 
 
 Effect of the 
 
 attested papers with duly executed "Wills and codicils were 
 fully confirmed, and very many of the cases which are col- 
 lected in the notes to the foregoing pages were cited and 
 discussed by Lord Kingsdown in delivering the opinion of 
 the Privy Council in the case of Allen v. Maddoch {i), and his 
 Lordship proceeded to state the law as follows : " The result 
 of the authorities, both before and since the late Act, appears 
 to be, that where there is a reference in a duly executed tes- 
 tamentary instrument to another testamentary instrument, 
 by such terms as to make it capable of identification, it is 
 necessarily a subject for parol evidence, and that when the 
 parol evidence sufficiently proves that, in the existing circum- 
 stances, there is no doubt as to the instrument, it is no objec- 
 tion to it that, by possibility, circumstances might have 
 existed in which the instrument referred to could not have 
 been identified " {h). 
 
 Where a Will referred to two memorandums and only one 
 could be found, it was held that effect must be given to that 
 which was found, — for either the ordinary presumption must 
 prevail, that the missing paper was destroyed by the testatrix 
 aniyno revocandi, or the principle must be applied that the 
 apparent testamentary intentions of a testator are not to be 
 disappointed, mereh' because he made other dispositions of 
 his property which are unknown by reason of the testamentary 
 paper which contained them not being forthcoming (l). 
 
 In acting upon the doctrines established by the authorities 
 
 Sm. 85, 91. See also Bric;gs v. 
 Penny, 3 De G. & S. 525. Ee Boyes, 
 26 C. D. 531. 
 
 (z) 11 Moore, P. C. 427, 461. 
 See also S. C, coram Sir J. Doclson, 
 Dea. & Sw. 325. 
 
 (A-) But the reference in a Will 
 may be in such terms as to exclude 
 parol testimony, as where it is to 
 papers not yet written, or where 
 the description is so vague as to be 
 incapable of being applied to any 
 instrument in particular : but the 
 authorities seem clearly to esta- 
 
 blish that where there is a reference 
 to any written document described 
 as tlien existing in such terms, that 
 it is capable of being ascertained, 
 parol evidence is admissible to 
 ascertain it. Allen v. Maddock, 
 11 Moore, P. C, at p. 454. In the 
 goods of Dallow, L. R. 1 P. & D. 
 189. In the goods of Sunderland, 
 L. R. 1 P. & D. 198. In the goods 
 of Kehoe, 13 L. R. Ir. 13. 
 
 {!) Dickinson v. Stidolph, 11 (J, 
 B., X. S. 341.
 
 Cli. II. § II.] Of the Attestation of Wills. 91 
 
 which there has been occasion to cite in the foregoing pages, evidence of tlie 
 
 BO little difficulty has occurred with respect to the evidence nesses as to the 
 
 given by the subscribed witnesses of the circumstances '^^tr^^tt^T^- 
 
 attending the attestation, particularly where the witnesses tion. 
 
 have been examined for the first time (as must very often 
 
 happen) at a period long after the transaction. For it may 
 
 be that they have no recollection at all on the subject, so that 
 
 they are quite unable to affirm that the Will was executed 
 
 according to the Statute : Or it may be that one affirms and 
 
 the other negatives, or that both negative, a compliance 
 
 with the statute. — The result of the cases on this subject 
 
 appears to be, that although, if a party be put to proof 
 
 of a Will, he must examine the attesting witnesses, it is 
 
 not absolutely necessar}^ for the validity of the AVill, to Not necessary 
 
 have their positive affirmative testimony that the W^ill was tive affirmative 
 
 actually signed or actually acknowledged in their presence •^^'^'^'J?^ °^ 
 
 •JO J o i execution. 
 
 before they subscribed (in). For if the Will on the Presumption. 
 face of it ai)pears to be duly executed, the presumption is 
 " omnia esse rite acta ; " even though there should be an 
 attestation clause, omitting to state some essential parti- 
 cular, e.f)., that the Will was signed in the joint presence of 
 both witnesses (u). So in a case where an affidavit was 
 
 (m) Blake v. Knight, 3 Curt. clause is incomplete. Vinnicombe 
 
 547. Gregory v. The Queen's Proc- v. Butler, 3 Sw. & Tr. 580. In the 
 
 tor, 4 Notes of Cas. 620. Thorn- goods of Rees, 34 L. J., P. & M. 
 
 son V. Hall, 2 Robert. 420. See 56. The maxim omnia prcesu- 
 
 further as to this point, Gwillim muntur rite esse acta is an expres- 
 
 V. Gwillim, 3 Sw. & Tr. 200. sion in a short form of a reasonable 
 
 Beckett D. Howe, L. R. 2 P. & D. I. probability and of the propriety 
 
 As to the meaning and autliority in point of law of acting on such 
 
 of these cases see, however, Blake probability. Thus, in the case of 
 
 V. Blake, 7 P. D. 102. Wright v. a lost Will, where it was proved 
 
 Sanderson, 9 P. D. 149 and ante, that a document purporting to be 
 
 p. 76. the Will of the deceased was signed 
 
 (n) Wright v. Sanderson, 9 P. D. by him, that two names of deceased 
 
 149. Lloyd v. Roberts, 12 Moo. friends of his were written under- 
 
 P. C. 158. Burgoyne v. Showier, neath, that one of the names was 
 
 1 Rob. 5. Smith v. Smith, L. a genuine signature, and there was 
 
 R. I P. & D. 143. Doe v. Davies, no evidence about the other name, 
 
 9 Q. B. 648. Leech v. Bates, 1 the Court drew the inference that 
 
 Rob. 714. The presumption the signature as to which there 
 
 applies tven where the attestation was no evidence was a genuine
 
 Of the Form, &c. of making a Will [Pt. i. Bk. ii. 
 
 Where attest- 
 ing witnesses 
 contradict 
 each other. 
 
 Where attest- 
 ing witnesses 
 state facts 
 showing that 
 will was not 
 duly executed. 
 
 required from the attesting witnesses (there being no attes- 
 tation clause) as to the due execution of the Will under the 
 statute, and one of them deposed that he saw the deceased 
 sign, in the presence of himself and the other witness, but 
 the latter could not recollect whether the deceased signed 
 her name in his presence or not, probate was allowed to pass 
 on motion (o). Again, it has been held, that where the at- 
 testing witnesses depose contrary to each other, (as where 
 one swears that they attested the Will in the presence of the 
 testator, and the other that it was attested in another room ; 
 or where one of three attesting witnesses swears that the 
 testator signed in their presence, and the two others swear 
 that he did not), the Court is not thereupon bound to pro- 
 nounce against the validity of the Will; but may either 
 examine other witnesses (who were present at the execution 
 though they did not subscribe the Will) in order to arrive at 
 the truth (2^), or may, upon the mere circumstances, give 
 credence to the affirmative rather than to the negative testi- 
 mony {q). And even where both the attesting witnesses 
 profess to remember the transaction, and state facts which 
 show that the "Will was not duly executed, (as that the tes- 
 tator did not make or acknowledge his signature in their 
 joint presence, or the like), not only may this negative evi- 
 dence be rebutted by the testimony of other witnesses, or 
 by the proof of circumstances showing that the attesting 
 witnesses are not to be credited (r) ; but in this case also the 
 Court may justly come to a conclusion from the facts and 
 circumstances which the attesting witnesses themselves state. 
 
 signature, and tliat all was done 
 properly, although there was no 
 attestation clause to say so. Harris 
 V. Knight, 15 P. D. 170. For a 
 case where the Court refused to 
 make such presumption, see : In 
 the goods of Swinford, L. R. 1 P. 
 & D. 630. 
 
 (o) In the goods of Hare, 3 Curt. 
 45. In the goods of Attridge, 6 
 Notes of Cas. 597. Daintree v. 
 Fasulo, 13 P. D. 67. 
 
 {}}) Young V. Richards, 2 Curt. 
 371. 
 
 {(l) Chambers v. The Queen's 
 Proctor, 2 Curt. 433. Gove v. 
 Gawen, 3 Curt. 151. "Wright v. 
 Rogers, L. R. 1 P. & D. 678. 
 
 (?•) See Accord. Austen v. Willes, 
 Bull. N. P. 264. Pike v. Badmer- 
 ing, cited 2 Stra. 1096, in Rice v. 
 Oattield, imt, Pt. i. Bk. iv. Ch. m. 
 §v.
 
 Cli. II. § III.] The Form of a Will. 93 
 
 that their memory fails them ; and so the Will may he ad- 
 mitted to probate, notwithstanding their testimony (s) . Thus, 
 in Cooper v. Beckett (t), a Will was held by Sir H. Jenner 
 Fust, upon the circumstances of the case, to have been 
 signed before the witnesses subscribed, although one witness 
 deposed that the testator signed after he and his fellow witness 
 had subscribed, and the other witness deposed that the j^art 
 of the Will where the signature of the testator was written 
 was blank when she, the witness, subscribed : And this deci- 
 sion was affirmed in the Privy Council {u). Where, however, 
 the attesting witnesses state facts (not contradicted by other 
 testimony) which demonstrate that the Will was not duly 
 executed, and there are no circumstances on which the Court 
 can found an inference that the recollection of the witnesses 
 is infirm on the subject, the Will must be pronounced 
 against, notwithstanding it should be all in the handwriting 
 of the deceased, and be signed by him and profess to be 
 duly attested (x). 
 
 Finally, it must be borne in mind that a testamentary Com-t must be 
 paper is not entitled to probate, unless the Court is satisfied ^t^'^'^ed that 
 that the names of the alleged witnesses were subscribed on names were 
 
 . . subscribed to 
 
 it for the purpose of attestmg the testator s signature (_?/). will for pur- 
 
 pose of attest- 
 ing testator's 
 signature. 
 
 SECTION III. 
 
 The Form of a Will. 
 
 " There is nothing that requires so little solemnity," said 
 Lord Hardwicke (z), "as the making of a will of personal 
 estate, according to the Ecclesiastical laws of this realm ; 
 
 («) Cooper V. Bockett, 3 Curt. P. D. 102. 
 663. See also Baylis v. Sayer, 3 {y) In the goods of Wilson, L. E. 
 
 Notes of Cas. 22. Shields. Shield, 1 P. & D. 269. In the goods of 
 
 4 Notes of Cas. 647. Braddock, 1 P. D. 433. In the 
 
 (t) 3 Curt. 648. goods of Sharman, L. R. 1 P. & D. 
 
 («) 4 Moo. P. C. 419. 661. Griffiths v. Griffiths, L. R. 
 
 (x) Pennant v. Kingscote, 3 Curt. 2 P. & D. 300. In the goods of 
 
 642. Beach v. Clarke, 7 Notes of Streatley [1891] P. 172. And see 
 
 Cas. 120. Croft v. Croft, 34 L. J. anf/', p. 86, note (a). 
 P. M. & A. 44. Llake v. Bkke, V (;.) In Ross v. Ewer, 3 Atk. 163.
 
 94 
 
 Oftlie Fovhi, dc. ofmaUnfj a Will [Pt. i. Bk. ii. 
 
 Testamentary 
 form not neces- 
 sary : 
 
 but it must be 
 intention of 
 deceased that 
 paper shall 
 operate after 
 Ills deatli. 
 
 The su]ipo8ed 
 exercise ot a 
 power may 
 operate as a 
 mere Will. 
 
 Principles on 
 ■which instru- 
 ments not pur- 
 porting to be 
 testamentary 
 may be 
 admitted to 
 probate : 
 
 for there is scarcely any paper writing which they will not 
 admit as such." Although much greater strictness seems to 
 have prevailed in earlier times, it has been decided in a 
 great variety of modern instances, that it is not necessary 
 that an instrument should be of a testamentary form, in 
 order to operate as a Will : Indeed it may be considered as a 
 settled point, that the form of a paper does not affect its title 
 to probate, provided it is the intention of the deceased that it 
 should operate after his death (a), and the paper is duly 
 attested in accordance with the Wills Act, 1 Vict. c. 26 {h). 
 
 [In the former editions of this work there were cited a large 
 number of cases as to the effect, as wills, of deeds, bonds, and 
 other documents not testamentary in form, but it has been 
 thought advisable, having regard to the improbability of such 
 documents complying with the requirements of the Wills 
 Acts in respect of attestation and otherwise, and to the lapse 
 of time since the passing of that Act, to omit these authorities 
 from the present edition.] 
 
 So if a man intends by Will to execute and purports to 
 execute a power, and it turns out that the power is not well 
 created, or does not exist, yet if he has a right to dispose of 
 the fund, the Will may operate, and ought to be admitted to 
 probate ; for in a Will no particular words are necessary to 
 pass the property, and his authority to give it shall come in 
 aid of his intended disposition of it {hh). 
 
 And it must be further observed, that it is not necessary 
 for the validity of a testamentary instrument, that the testator 
 should intend to perform, or be aware that he had performed 
 
 (rt) By Sir John Nicholl, in Mas- 
 terman v. Maberly, 2 Hagg. 248. 
 Doe V. Cross, 8 Q. B. 714. Cock v. 
 Cooke,lL.R.P.&D.241. Eobert- 
 son V. Smith, L. R. 2 P. & D. 43. In 
 the goods of Coles, 2 L. R. P. & D. 362. 
 
 (6) In the goods of Colyer, 14 P. 
 D. 48, where a paper executed in 
 the form of a deed, but bearing the 
 attestation of two witnesses, was 
 held entitled to probate. And in 
 the case of Mihu-s v. Foden, 15 P. 
 
 D. 105, two deed polls were held 
 entitled to probate. Thus in In 
 the goods of Slinn, 15 P. D. 156, 
 probate was granted of a deed poll 
 duly executed and attested by two 
 witnesses but containing no refer- 
 ence to the death of the testatrix, 
 and extrinsic evidence was ad- 
 mitted to shew that she intended 
 it to operate as a Will. 
 
 {hh) Southall v. Junes, 1 Sw. & 
 Ti-. 2U8.
 
 Ch, II. § III.] The Form of a Will. 
 
 95 
 
 a testamentary act (c) ; for it is settled law, that if the paper 
 contains a disj)osition of the property to be made after death, 
 though it were meant to operate as a settlement or a deed of 
 gift, or a bond ; though such paper were not intended to be a 
 Will or other testamentary instrument, but an instrument of 
 a different shape, yet if it cannot operate in the latter, it may 
 nevertheless operate, if duly executed, in the former cha- 
 racter {d). 
 
 But no case has gone the length of deciding, that because 
 an instrument cannot operate in the form given to it, it must 
 operate as a Will. The true principle to be deduced from 
 the authorities appears to be, that, if there is proof, either in 
 the paper itself, or from clear evidence dehors (e), first, that it 
 was the intention of the writer of the paper to convey the 
 benefits by the instrument which would be conveyed by it if 
 considered as a Will ; secondly, that death was the event that 
 was to give effect to it ; then whatever may be its form, it 
 
 (c) Bartholomew v. Henley, 3 
 Pbillim. 318. 
 
 (d) By Sir John Nicboll in 
 Masterman v. Maljerly, 2 Hagg. 
 247. In the goods of Morgan, L. 
 R. I P. & D. 214. In these cases 
 the instrument was intended by 
 the deceased to be operative, 
 though not in a testamentary way. 
 But a Will, though formally exe- 
 cuted as a Will, will not be valid 
 if there were no animus testandi ; 
 and therefore it may be shown in 
 evidence that it was written in jest, 
 or without any intention of mak- 
 ing an operative Will : Nicholls v. 
 Nicholls, 2 Pbillim. 180. Lister 
 V. Smith, 3 Sw. & Tr. 282. Fer- 
 guson-Davie v. Ferguson-Davie, 
 15 P. D. 109. See also, as to the 
 necessity of there being an animus 
 testandi: Sliep. Touch. 404. Swinb. 
 Pt. 1, s. 3, pi. 23. Taylor v. 
 D'Egville, 3 Hagg. 20G. But if an 
 instrument, upon the face of it, is 
 manifestly executed as a Will, the 
 
 Court of Probate cannot look at its 
 effect ; it must have legal opera- 
 tion, without regard to the inten- 
 tion as to effect : King's Proctor v. 
 Daines, 3 Hagg. 231. Philips v. 
 Thornton, 3 Hagg. 752. 
 
 (e) If the instrument be equi- 
 vocal or silent, it may be proved 
 by extrinsic circumstances to have 
 been intended to operate as a tes- 
 tamentary disposition : King's Proc- 
 tor V. Daines, 3 Hagg. 221. Jones 
 V. Nicholay, 2 Eobert. 292, where 
 Sir H. Jenner Fust said, "Evi- 
 dence to show quo intuitu has 
 always been received in a Court of 
 Probate. " In the goods of English, 
 3 Sw. & Tr. 586. Cock v. Cooke, 
 L. R. 1 P. & D. 241. Robertson t). 
 Smith, L. R. 2 P. & D. 43. In the 
 goods of Slinn, 15 P. D. 156. See 
 also i)ost, Pt. I. Bk. IV. Ch. ii. § v, 
 for other cases as to the reception 
 of parol evidence respecting the 
 testator's intention.
 
 96 
 
 OftheFonn,&c.ofinalin(ja Will [Pt. i. Bk. ir. 
 
 they must de- 
 pend on the 
 death of the 
 maker for ctn- 
 snmmation. 
 
 may, assuming tliat tliore is execution in compliance with the 
 Wills Act, be admitted to probate as testamentary (/). And 
 there seems to be this distinction in the consideration of 
 papers which are in their terms dispositive, and those which 
 are of an equivocal character ; that the first will be entitled 
 to probate, unless they are proved not to have been written 
 (inimo t e standi ; whilst, in the latter, the animus must be 
 proved by the party claiming under them (g). 
 
 It should be observed that if a document, although in the 
 form of a will, bears upon its face the positive assertion by 
 the person executing it that it is not meant to operate as a 
 legal will, it will not be held to be a valid testamentary 
 document (h). 
 
 If a testator by a subsequent paper say he has bequeathed 
 by a former instrument that which he has not bequeathed, 
 the subsequent paper would, it w^ould seem, be admitted to 
 probate, as being a declaration of his Will at the time he 
 made it, to dispose by the Will (i). 
 
 But it is essentially requisite that the instrument should 
 be made to depend upon the event of death, as necessary to 
 
 (/) King's Proctor v. Daines, 3 
 Hagg. 221. Jones v. Nicholay, 
 2 Robert. 288. In the goods of 
 Robinson, L. R. 1 P. & D. 384. 
 Milnes v. Foden, 15 P. D. 105, 
 107. It would seem that it is not 
 an objection to probate that it is 
 asked in respect only of part of a 
 document : Doe d. Cross v. Cross, 8 
 Q. B. 714. But see In the goods 
 of Robinson, uhi sup. : from 
 which case it would seem that no 
 part of an instrument which is 
 Avholly irrevocable can be treated 
 as testamentary. A duly executed 
 paper in these terms, " I wish my 
 sister to have my bank-book for her 
 own use," was held to be testamen- 
 tary, the Court being satisfied on 
 the evidence that the deceased at 
 the time of its execution intended 
 
 it to take effect after her death, and 
 not as a present deed of gift. Cock 
 V. Cooke, L. R. 1 P. & D. 241. Iii 
 the goods of Coles, L. R. 2 P. & D. 
 362. 
 
 {(J) King's Proctor v. Daines, 3 
 Hagg. 221. Griffin v. Ferrard, 1 
 Curt. 199. Coventry v. Williams,. 
 3 Curt. 790, 791. Thorncroft v. 
 Lashmar, 2 Sw. & Tr. 479. 
 
 (/i) Ferguson-Davie v. Ferguson 
 Davie, 15 P. D. 109. 
 
 (t) Druce v. Denison, 6 Ves. 397, 
 in the judgment of Lord Eldon, 
 C. Bibin v. Walker, Ambl. 661. 
 Godolph. Pt. 3, ch. 3, s. 3. Jordan 
 V. Fortescue, 10 Beav. 259. Farrer 
 V. St. Catharine's College, L. R. 16 
 Eq. 19. But see Frederick r. Hall, 
 1 Ves. 396.
 
 Ch. 11. § IV.] The Language of a Will. 
 
 97 
 
 consummate it ; for where a paper directs a benefit to be 
 conferred inter vivos, without reference, expressly or im- 
 pliedly, to the death of the party conferring it, it cannot be 
 established as testamentary (A:). 
 
 The Court does not confine the testamentary disposition Several mstru- 
 
 ^ '■ ments of aii- 
 
 to a single instrument : but will consider several, of different ferent natures 
 
 -in ,., ,. 1, ,T ,1 ^iT-n o ,1 may constitute 
 
 natures and lorms, as constitutmg altogether the vVul oi the altogether a 
 deceased {I). ^''''• 
 
 SECTION IV. 
 
 Tlte Language of a Will. 
 
 The rules of the Court are not more scrupulous with Language of a 
 respect to the language, than the nature, of instruments pape™^"^ ^^^ 
 which it allows to operate as testamentary. It is not 
 held necessary that the directions contained in them, how 
 property should be disposed of in the event of death, should 
 be in direct and imperative terms : wishes and requests have 
 been deemed sufficient (w). 
 
 ' ■ Wishes '" and 
 ' ' requests " 
 deemed sxiffi- 
 cient. 
 
 Qc) Glynn v. Oglander, 2 Hagg. 
 428. King's Proctor v. Daines, 3 
 Hagg. 218. Shingler v. Pember- 
 ton, 4 Hagg. 359. And see In 
 the goods of RoLinson, L. R. 1 P. 
 & D. 384. 
 
 (1) See 2^ost p. 138, as to the 
 admission of probate of two or more 
 instruments of diflferent date as 
 together containing the Will of the 
 deceased. Where probate is gran- 
 ted of two or more testamentary 
 papers, as together containing the 
 last Will of the deceased, it is the 
 practice to make the grant to all 
 the executors named in the several 
 papers. In the goods of Morgan, 
 L. E. 1 P. & D. 323. In the goods 
 of Harris, L. R. 2 P. & D. 83. 
 
 (m) Passmore v. Passmore, 1 
 Phillim. 218, in Sir J. NichoU'.s 
 
 W.E. — VOL. I. 
 
 judgment. Generally speaking 
 when property is given absolutely 
 to any person, and the same person 
 is by the giver " recommended,^' 
 or " entreated," or " requested," 
 or "wished" to dispose of that 
 property in favour of another, the 
 recommendation, request, or wish, 
 is held imperative and to create a 
 truist. (See the cases cited, in 
 Knight V. Knight, 3 Beav. 148, 
 and Knight v. Broughton, 11 CI. 
 & Fin. 513.) But this rule does 
 not apply, where it appears clearly 
 from the context that the first 
 taker is intended to have a dis- 
 cretionary power to withdraw any 
 part of tlie fund from the object of 
 the wish or reipiest, or that he i;; 
 in any way to have an option to 
 control or defeat the desire ox- 
 H
 
 98 
 
 Language of 
 Will imma- 
 terial. 
 
 Oftlie Form, cOc. of making a Will. [Pt. i. Bk. ir. 
 
 It is immaterial in what language a Will is written, whether 
 iu Latin, French, or any other tongue [n). If the testator 
 be a domiciled Englishman, the effect of the foreign tongue 
 employed can only be looked at in order to ascertain what are 
 the equivalent expressions iu English (o). 
 
 Pencil Will, or 
 altenitioiis iu 
 Will. 
 
 SECTION Y. 
 
 Of the Materials icith lohicli a Will may he Written, and of 
 the Person loho may he the Writer : and hereicith of a Will 
 inepared hy a Legatee. 
 
 There are scarcely any restrictions in the Ecclesiastical 
 Law, with respect to the materials on which, or by which, a 
 testamentary document may be executed {p). Thus a Will 
 or Codicil, or any part thereof, may be made or altered in 
 pencil as well as in ink {q). But when the question was, as 
 
 pressed : Eaton v. Watts, L. R. 4 
 Eq. 151. Lambe v. Eames, L. R. 
 6 Ch. 597. Stead v. Mellor, 5 C. 
 D. 225. Re Hutchinson and 
 Tenant, 8 C. D. 540. Parnall v. 
 Parnall, 9 C. D. 96. Re Adams 
 and Kensington Vestry, 24 C. D. 
 199, 27 C. D. 394. Mussoorie 
 Bank v. Raynor, 7 App. Cas. 321. 
 For the older authorities on this 
 subject, see former editions of this 
 work. The older authorities went 
 much further than the modern in 
 holding that trusts were created 
 by precatory M'ords. And in the 
 case of Lambe v. Eames, uhi sup. : 
 Lord Justice James said " In 
 hearing case after case cited, I 
 cannot help feeling that the 
 officious kindness of the Court of 
 Chancery in interposing trusts, 
 where in many cases the father of 
 the family never meant to create 
 trusts, must have been a very cruel 
 kindness indeed," and Lord Justice 
 Cotton in Re Adamsand Kensington 
 
 Vestry, uhi sup. : said, " I have no 
 hesitation in saying myself that I 
 think some of the older authorities 
 went a great deal too far in hold- 
 ing that some particular words in 
 a Will were sufficient to create a 
 trust . . . Having regard to the 
 late decisions, we must not extend 
 the old cases in any way or rely on 
 the mere use of any particular 
 words, but considering all the 
 words that are used we have to see 
 what is tlieir true effect, and what 
 was the intention of the testator as 
 expressed in his Will." See also 
 Re Diggles, 39 C. D. 253. 
 
 (n) Swinb, Pt. 4, s. 25, pi. 3. See 
 as to a Will in a foreign language, 
 Foubert v. Cresseron, Show. P. C. 
 194. 
 
 (o) Reynolds v. Kortright, 18 
 Beav. 417. 
 
 {})) Swinb. Pt. 4, s. 25, pi. 2. 
 
 {q) Rymes v. Clarkson, 1 Phil- 
 lim. 35.
 
 Ch, II. § v.] Of a Will written hy a Lerjalce. 99 
 
 before the Wills Act it often used to be, whether the testator 
 
 intended the paper as a final declaration of his mind, and as 
 
 testamentary, or whether it was merely preparatory to a more 
 
 formal disposition, the material with which it was written 
 
 became a most important circumstance. And it has been Presumption 
 
 held that the general presumption and probability are, that aitenltlons are 
 
 where alterations in pencil only are made, they are delibera- <iehberatiye 
 
 ■^ '' J ,1 j^m^j ,„]^ altera- 
 
 tive ; where in ink, they are final and absolute (r). And the tions are final. 
 
 same presumption prevails when the question arises as it 
 
 occasionally does in respect of Wills made since the Wills 
 
 Act {rr). 
 
 By the civil law, if a person wrote a Will in his own Where a Will 
 
 e ^ • TT'i/\mi ii^*^ written or 
 
 favour, the instrument was rendered void (s). ihat rule has prepared by a 
 
 not been adopted in its fullest extent by the law of England, ^'^n^f,^'vour- 
 
 which only holds that w^here the person who prepares the 
 
 instrument or conducts its execution, is himself benefited by 
 
 its dispositions, this circumstance creates a presumption 
 
 against the act, and renders necessaiy very clear proof of 
 
 volition and capacity as well as of a knowledge by the testator 
 
 of the contents of the instrument {t). Nor does the Law of 
 
 this realm determine that the act is absolutely void, even '^'len he is the 
 
 agent and at- 
 
 though the person making the Will in his own favour is the torney of the 
 
 tsstator. 
 
 (r) Hawkes v. Hawkes, 1 Hagg. ledge will, as in other cases prima 
 
 322. Parkin v. Bainbridge, 3 Phil, facie be presumed on proof of capa- 
 
 32 ] . city and execution : Barry v. But- 
 
 {rr) In the goods of Hall, L. E. lin, 2 Moo. P. C. 480. And even 
 
 2 P. & D. 256. In the goods of where there is affirmative evidence 
 
 Adams, L. R. 2 P. «& D. 367. of knowledge by reason of the will 
 
 (s) Dig. lib. 48, t. 10, s. 15, and having been read over to a testator, 
 
 lib. 34, s. 8. competent in mind, before execu- 
 
 {t) Paske V. Ollat, 2 Phillim. tion, there is no unyielding rule 
 
 324. Ingram v. Wyatt, 1 Hagg. of law (especially where the in- 
 
 391. But it must not be under- gredient of fraud enters into the 
 
 stood that the rule is that direct case) shutting out all further 
 
 evidence that the testator knew inquiry. Fulton v. Andrew, L. R. 
 
 the contents is necessary ; circura- 7 H, L. 465, fer Cairns, L. C. 
 
 stantial evidence may be sufficient Undue influence, if suggested, must 
 
 for this purpose : Raworth v. Mar- be supported by affirmative proof, 
 
 riott, 1 M. &K. 613. And know- Parfitt i'.Lawk'ss,L.R.2P.&D.462. 
 
 H 2
 
 100 
 
 Of the Form, tOc. of maJcincj a Will [Ft. i. Bk. ii. 
 
 Rule in Bai-ry 
 17. Butlin. 
 
 . Onus pro- 
 handi on 
 party pro- 
 pounding Will. 
 
 ii. The Court 
 t^hould be 
 vigilant in 
 cases where 
 the party 
 writing or pre- 
 Xiaring the 
 Will takes a 
 benefit there- 
 under. 
 
 agent and attorney of the testator; but the suspicion is 
 thereby, for obvious reasons, greatly increased (?/). 
 
 This doctrine was fully considered by the Lords of the 
 Judicial Committee of the Privy Council, in the case of 
 Barry v. Butlin {x). And it should seem that the terms, 
 in "u-hich the rule above stated has been laid down, require 
 some qualification. In delivering the judgment of their 
 Lordships in that case, Parke, B., made the following observa- 
 tions : " The rules of law, according to which cases of this 
 nature are to be decided, do not admit of any dispute, so far 
 as they are necessary to the determination of the present 
 appeal, and have been acquiesced in on both sides. These 
 rules are two ; the first is, that the onus prohandi lies upoD 
 the party propounding a Will, who must satisfy the con- 
 science of the Court that the instrument propounded is the 
 last Will of a free and capable testator ; the second is, that 
 if a party writes or prepares a Will, under which he takes 
 a benefit, that is a circumstance which ought generally ta 
 excite the suspicion of the Court, and calls upon it to be 
 vigilant and jealous in examining the evidence in support of 
 the instrument, in favour of which it ought not to pronounce 
 unless the suspicion is removed, and it is judicially satisfied 
 that the paper does express the true Will of the deceased. 
 These principles, to the extent that I have stated, are well 
 established : The former is undisputed ; the latter is laid 
 down by Sir John jSTicholl, in substance, in Pashe v. Ollat ; 
 Ingram v. Wycitt; and Billingliurst v. Vichers ; and is stated 
 by that very learned and experienced judge to have been 
 
 (u) Ingram v. Wyatt, 1 Hagg. 
 391. Dufaur v. Croft, 3 Moore, P. 
 C. C. 136. Parfitt v. Lawless, L. 
 R. 2 P. & D. 462. In some cases 
 the conduct of a professional man 
 who prepared a Will has been held 
 fraudulent, and the Will inopera- 
 tive, by reason of his allowing the 
 testator to remain in ignorance, 
 Avhich influenced the Will in favour 
 of himself See Segrave v. Kir- 
 
 wan, 1 Beat. 157. Hindson r. 
 Wetherill, 1 Sm. & G. 609. 5 
 De G., M. & G. 301. Walker v. 
 Smith, 29 Beav. 394. See alsc^ 
 Bulkelej v. Wilford, 2 CI. & F. 
 102. Walkers v. Thorn, 22 Beav. 
 547. Post, Pt. I. Bk. VI. Ch. i. 
 
 {x) 2 Moo., P. C. 480. Fulton 
 V. Andrew, L. R. 7 H. L. 448. 
 Goodacre v. Smith, L. R. 1 P. & D. 
 359.
 
 oil. II. § v.] Of a Will written hy a Legatee. 101 
 
 handed down to liim by his predecessors ; and this tribunal 
 has sanctioned and acted upon it in a recent case, that of 
 Bake?- v. Batt (y). Their Lordships are fully sensible of the 
 wisdom of this rule, and of the importance of its practical 
 application on all occasions. At the same time they think it 
 fit to observe, especially as there has been some discussion 
 upon this point towards the close of this inquiry, that some 
 of the expressions reported to have been used by Sir John 
 Nicholl, in laying down this doctrine, appear to them to be 
 somewhat equivocal, and capable of leading into error in the 
 investigation and decision of questions of this nature. It is 
 said that, where the party benefited prepares the Will, ' the 
 presumption and omis prohandi is against the instrument, 
 and the proof mast go not merely to the act of signing, but 
 to the knowledge of the contents of the paper : ' and that, 
 ^ where the capacity is doubtful, there must be proof of 
 instructions or reading over.' If by these expressions the 
 learned judge meant merely to say, that there are cases of 
 Wills prepared by a legatee so pregnant with suspicion, 
 that they ought to be pronounced against in the absence of 
 evidence in support of them extending to clear proof of 
 actual knowledge of the contents by the supposed testator, 
 and that the instructions proceeding from him, or the reading 
 over the instrument by or to him, are the most satisfactory 
 evidence of such knowledge, we fully concur in the pro- 
 position so understood. In all probability, the learned judge 
 intended no more than this. But if the words used are to 
 be construed strictly : if it is intended to be stated, as a rule 
 ■of law, that in every case in which the party preparing the 
 Will derives a benefit under it, the onus prohandl is shifted, 
 and that not only a certain measure, but a particular species 
 of proof is thereupon required from the party propounding 
 the Will, we feel bound to say that we conceive the doctrine 
 to be incorrect. The strict meaning of the term ' onus pro- Meaning of 
 landi' is this; that if no evidence is given by the party on i^""; j°'"" ^" "" 
 whom the burthen is cast, the issue must be found against 
 
 ,(j/) 2 Moore, P. C. C. 317. See also Hitcliings v. Wood, ibid. 355, 436.
 
 102 Of the Form, &c. of making a Will [Pt. i. Bk. ii. 
 
 Lim. In all cases, this onus is imposed on the party pro- 
 pounding a Will ; it is in general discharged hy proof of 
 capacity, and the fact of execution, from which the know- 
 ledge of and assent to the contents of the instrument are 
 presumed : and it cannot be, that the simple fact of the party 
 Avho prepared the Will being himself a legatee, is, in every 
 case and under all circumstances, to create a contrary pre- 
 sumption ; and to call upon the Court to pronounce against 
 the Will, unless additional evidence is produced to prove 
 knowledge of its contents by the deceased. A single 
 instance, of not vmfrequent occurrence, will test the truth of 
 this proposition : — A man of acknowledged competence and 
 habits of business, worth 100,OOOL, leaves the bulk of that 
 property to his family, and a legacy of 101. or 50/. to hi a 
 confidential attorne}', who prepared his Will : Would this- 
 fact throw the burden of proof of actual cognizance by the 
 testator of the contents of the Will on the party propounding 
 it, so, that, if such proof were not supplied, the Will would 
 be pronounced against ? The answer is obvious — it would 
 not. All that can be truly said is, that if a person, whether 
 attorney or not, prepares a Will with a legacy to himself, it 
 is at most a suspicious circumstance, of more or less weight 
 according to the facts of each particular case ; in some of no 
 weight at all, as in the case suggested ; varying according to 
 the circumstances, for instance the quantum of the legacy, 
 and the proportion it bears to the property disposed of, 
 and numerous other contingencies ; but in no case amounting- 
 to more than a circumstance of suspicion, demanding the 
 vigilant care and circumspection of the Court in investigating 
 the case, and calling upon it not to grant probate without 
 full and entire satisfaction that the instrument did express 
 the real intentions of the deceased. Nor can it be necessary 
 that in all such cases, even if the testator's capacity is 
 doubtful, the precise species of evidence of the deceased's 
 knowledge of the Will is to be in the shape of instructions 
 for or reading over the instrument ; they form, no doubt, 
 the most satisfactory, but they are not the only satisfactory.
 
 Ch. II. § VI.] Of Nancupative Wills. 103 
 
 description of proof by wliicli the cognizance of the contents 
 of the Will may be brought home to the deceased. The Court 
 would naturally look for such evidence ; in some cases it 
 might be impossible to establish a Will without it ; but it 
 has no right in every case to require it. I have said thus 
 much upon the rules of law applicable to this case, with the 
 concurrence of all their Lordships who heard the argument, 
 not particularly with a view to the decision of this case, but 
 in order to prevent any misconception upon a subject of 
 so great practical importance. At the same time their 
 Lordships wish it to be distinctly understood, that, entirely 
 acquiescing in the propriety of the rule so qualified and 
 explained, they should be extremely sorry if anything which 
 has fallen from them should have the efi'ect of impeding its 
 full operation." 
 
 In the subsequent case of Darling v. Loveland {z), Sir H. Rule in Barry 
 
 T -n p • • 1 • T <>''''• Butlin ap- 
 
 Jenner Fust, referring to these passages m the judgment oi proved in sub- 
 Mr. Baron Parke, observed that he acceded to every one of ^®'i"^'^ *^^^^^- 
 the doctrines and principles there laid down, but that he was 
 not aware that the Prerogative Court had ever acted on any 
 other or different {a). 
 
 SECTION YI. 
 
 Of Nuncupative Wills and Codicils. 
 A nuncupative testament is when the testator, without any All nurcupa- 
 
 tivG AVills 
 
 writing, doth declare his Will before a sufficient number of (made on and 
 
 witnesses (/j). Before the Statute of Frauds it was of as igss) Tre in- 
 valid : 
 (z) 2 Curt. 225, 227. burn, a nuncupundo, i.e. nomi- 
 
 (a) The doctrine laid down as nando, of naming ; because when a 
 above, in Barry v. Butlin, has been man maketh a nuncupative testa- 
 recognized and acted on in many ment, he must name his executor 
 subsequent cases. See the cases and declare his wliole mind before 
 collected in the 8th ed. of this witnesses : ibid. pi. 2. According 
 Work, p. 117, note {z). to the civil law, the appointment 
 
 [h) Swinb. Pt. 1, s. 12, pi. 1. of an executor was the essence of a 
 Godolph. Pt. 1, c. 4, s. 6. It is Will; and if he were appointed by 
 called Nuncupative, says Swin- word of mouth, although many
 
 10^ Of Nuncupative Wdls. [Pt. i. Bk. ii. 
 
 great force and efficacy (except for lands, tenements, and 
 
 hereditaments) as a written testament (c). But as Wills of 
 
 this description are liable to great impositions, and may 
 
 occasion many perjuries, that statute (29 Car. II. c. 3) laid 
 
 them under several restrictions ; except when made by " any 
 
 soldier being in actual military service, or any mariner or 
 
 seamen being at sea"(f^). And now by the Statute of 
 
 "Wills (1 Vict. c. 26), applying to all Wills made on or after 
 
 1 Jan., 1838, nuncupative Wills (or other testamentary 
 
 except those dispositions) are altogether rendered invalid (e). The excep- 
 
 solJiers or tiou, however, in favour of soldiers and mariners has been 
 
 manners. continued by the 11th section of the latter statute, which 
 
 provides and enacts that " any soldier being in actual military 
 
 service, or any mariner or seaman being at sea, may dispose 
 
 of his personal estate as he might have done before the 
 
 making of this Act." 
 
 Construction of This privilege, as it respects soldiers, has been held to be 
 this exception : „ ^ , , . . „ , -i ic i -i- 
 
 confined, by the insertion oi the words actual military 
 
 as to soldiers : service," to those who are on an expedition: And con- 
 sequently it has been decided, that the Will of a soldier 
 made while he was quartered in barracks, either at home (/) 
 or in the colonies {g) is not privileged. The same was held 
 as to the Will of a soldier made at Bangalore, in the East 
 Indies, whilst in command of the Mysore division of the 
 army there stationed, and who died whilst on a tour of 
 
 legacies were made and written in Englisli army the full benefit of 
 
 a Will, and many things were ex- the testamentary privileges of the 
 
 pressed to be dune, it was consi- Eoman army : 3 Curt. 531. 
 
 dered a nuncupative Will only : (e) Section 9. As to the law 
 
 Swinb. Pt. 1, s. 12, pi. 6. Godolpli. prior to the above date relating to 
 
 Pt. 1, c. 4, s. 7. nuncupative AVills, see the former 
 
 (c) Swinb. Pt. 1, s. 12, i^l. 3. editions of this Work, Pt. i. Bk. ii. 
 
 Godolph. Pt. 1, c. 4, s. 6. Ch. ii. § vi. 
 
 ((?) It appears from the Preface (/) Drummoudi-. Parish, 3 Curt, 
 
 to the Life of Sir Leoline Jenkins, 522. 
 
 that he claimed to himself some (^^) White y. Repton, 3 Curt. 818. 
 
 merit for having, during the pre- See In the goods of Pliipps, 2 Curt, 
 
 paration of the Statute of Frauds, 368. In the goods of Johnson, 2 
 
 obtained for the soldiers of tlie Curt. 341.
 
 Cli. II. § VI. J Oftlte Wills of Soldiers or Mariners. 105 
 
 insi)ection of the troops under his command (/t). But where 
 the deceased was on his way from one regiment to another, 
 both of which were in actual military service, it was held 
 that his Will was privileged (?')• (The term '"'soldier" 
 extended to persons in the military service of the East India 
 Company (A-).) 
 
 So, in the case of The Earl of Euston v. Seymour (I), the as to mariners. 
 testator, Lord Hugh Seymour, was commander-in-chief of 
 the naval force at Jamaica, but lived on shore at the official 
 residence with bis family : And it was held by Sir Wm. 
 Wynne, that the testator did not come within the exception ; 
 for that he was not "at sea" within the meaning of that 
 expression in the Act ; and consequently that a nuncupative 
 Will made by him on shore was invalid. But in a case on 
 motion (m), the unattested Will of a seaman, who, while on 
 board a vessel lying in the harbour of Buenos Ayres, on 
 the 4th of November, 1839, obtained leave to go on shore, 
 where he met with an accident, and was thereby so severely 
 injured, that he died on shore on the 9th, was admitted to 
 probate as being within the exception ; and the Court 
 distinguished the case from that of Lord Hugh Seymour, 
 who was living on shore at Jamaica, only occasionally going 
 on board his ship ; but this was to be regarded as the Will of 
 
 {h) In the goods of Hill, 1 2 Curt. .386. 
 
 Eobert. 276. (/) Cited fer curiam^ 2 Curt. 339. 
 
 (t) Herbert v. Herbert, Dea. & 3 Curt. 530. 
 
 Svv. 10. See also S. P. In the (in) In the goods of Lay, 2 Curt, 
 
 goods of Thorne, 29 Jur, 569. S. 375. So also a Will made by a 
 
 C. 24 L. J. (N. S.) P. M. ^& A. 131, mariner serving on board H.M.S. 
 
 where an officer went with his " Excellent " whilst she was per- 
 
 regiment to Africa, for the purpose manently stationed in Portsmouth 
 
 of joining a military expedition Harbour, was held to be the will of 
 
 into the interior, and hia Will was a " mariner or seaman being at sea " 
 
 made before the expedition left within Section II of the Wills 
 
 the British settlement. The affi- Act : In the goods of McMurdo, 
 
 davit on which the application for L. E. 1 P. & D. 540. See also In 
 
 probate is made must be explicit : the goods of Saunders, L. K. 1 P. 
 
 Ihid. & D. 16. 
 
 {k) In the goods of Donaldson,
 
 lOG 
 
 0/ Nuncupative Wills. [Pt. i. Bk. II. 
 
 Constnictinn (li 
 words " mari- 
 ner orseaiiMti." 
 
 Persons witliin 
 the exception 
 may make their 
 Wills thoiigli 
 under age. 
 
 Provisions of 
 Stat. 28 & 29 
 Vict. c. 72, 
 as to Wills of 
 seamen. 
 
 a seaman " at sea," although the deceased was not actually 
 on board ship at the time the Will was made. So where an 
 Admiral, though not actually at sea, was in a river on a naval 
 expedition, it was held that his case fell within the spirit of 
 the exception in the Act (n). 
 
 As to the construction of the words " mariner or seaman," 
 in the exception ; it has been held that the purser of a 
 man-of-war is within this description, and it should seem that 
 it includes the whole service, applying equally to superior 
 officers up to the commander-in-chief, as to a common 
 seaman, being at sea (o). And it has also been held to apply 
 to merchant seamen (j)). 
 
 It was held by Sir H. Jenner Fust, on motion (^7), that, 
 notwithstanding the general provisions of the Act, a minor 
 may make his Will if he falls within the exception as being 
 " in actual military service, &c. ; " the words of the clause 
 being " any soldier, &c." 
 
 With respect to the making and probate of the Wills of 
 j)etty officers and seamen in the Queen's service, and the 
 non-commissioned officers of marines, and marines serving 
 on board a ship in the Queen's service, several statutes have 
 been passed containing regulations calculated to counteract 
 the frauds and impositions to which they are liable. These, 
 however, have been repealed, and other provisions for the 
 same purpose substituted, by the statute 28 & 29 Vict. c. 72, 
 which will be pointed out, when the subject of the probate of 
 Wills occurs (/•)• 
 
 (11) In the goods of Austen, 2 
 Robert. 611. 
 
 (0) In the goods of Hayes, 2 
 Curt. 3.38. A surgeon in the 
 Navy is a " mariner or seaman " 
 within the section : In the goods 
 of Saunders, L. R. 1 P. & D. 16. 
 As to the meaning of the term 
 " seaman and mariner " in sect. 2 
 
 of Stat. 28 & 29 Vict. c. 72 : see 
 post, Pt. I. Bk. IV. ch. III. 
 
 (jj) Morrell v. Morrell, 1 Hagg. 
 51. In the goods of Milligan, 2 
 Robert. 108. In the goods of 
 Parker, 2 Sw. & Tr. 375. 
 
 (q) In the goods of Farquhar, 4 
 Notes of Cas. 651, 652. 
 
 (r) Saepost, Pt. i. Bk. iv. Ch.iv.
 
 107 
 
 CHAPTER THE THirtL). 
 
 OF THE REVOCATION OF WILLS OF PERSONALTY. 
 
 There has already been occasion to observe that a Will Ambulatory 
 
 •^ and revocable 
 
 is in all cases whatever a revocable instrument. For though nature of a 
 
 Will 
 
 a man make his Testament and last Will irrevocable in the 
 strongest and most express terms, yet he may revoke it ; 
 because his own act and deed cannot alter the judgment of 
 law to make that irrevocable which is of its own nature 
 revocable (a). A Will is, therefore, said to be ambulatory 
 until the death of the testator (h). 
 
 It has already been stated that a mutual and conjoint Will Mutual Will : 
 
 whether ever 
 
 is unknown to the testamentary law of this country (c). irrevocable in 
 One ground of objection to such an instrument as testa- ^'^^ ^' 
 mentary, is its irrevocability. However, such a Will may, 
 it should seem, in some cases, be enforced in Equity as a 
 compact. In Diifour v. Pereira (d), Mrs. Camilla Rancer, 
 the wife of Mr. Rancer, being entitled to a legacy under the 
 Will of her aunt, she and her husband agreed to make a 
 mutual Will, which they did, and both executed it ; the 
 husband died ; the wife proved his Will, and afterwards 
 made another Will. And the question was, whether it was 
 in the power of the wife to revoke the mutual AVill. Lord 
 Camden, C. " This question arises on a mutual Will of the 
 
 (a) Vynior's case, 8 Co. 82, a. ViUe exitum. Then it would be 
 
 Swinb. Pt. 7, s. 14, pi. 2. against the nature of a Will to be 
 
 {b) The making of a Will is but so a1)solutc, that lie who makes it 
 
 the inception of it, and it doth not cannot countermand it : Forse and 
 
 take effect till the death of the Hembling's case, 4 Co. 01 h. 
 
 testator : for omne testamentum {c) Ante, p. 8. 
 
 morte consummatum est, et voluntas (d) 1 Dick. 419. 
 est umbulatoria usque ad extreinum
 
 108 Revocation of Wills. [Pt. i. Bk. ii. 
 
 husband and wife ; the "SVill is jointly executed by them ; 
 what the wife disposes of, is the residue of her aunt's estate, 
 given to her hy her Will. I do not find the cases go so far, 
 as to consider a legacy to a wife, as excluding the husband by 
 implication : but there is no occasion to determine that 
 question : the question is, as the husband by the mutual 
 AYill assents to his wife's right, and makes it separate, 
 whether the second Will by the wife is to be considered as 
 void. It struck me at first, more from the novelty of the 
 thing than its difiiculty. The case must be decided by the 
 laws of this country. The Will was made here ; the parties 
 lived here ; and the funds are here. Consider how far the 
 mutual Will is binding, and whether the accepting of the 
 legacies under it by the survivor, is not a confirmation of it. 
 
 1 am of opinion it is. It might have been revoked by both 
 jointly, it might have been revoked separately, provided the 
 party who intended it had given notice to the other of such 
 revocation. But I cannot b'e of opinion, that either of them 
 could, during their joint lives, do it secretly; or that after 
 the death of either, it could be done by the survivor by 
 another Will. It is a contract between the parties, which 
 cannot be rescinded, but by the consent of both. The first 
 that dies, carries his part of the contract into execution. 
 Will the Court afterwards permit the other to break the 
 contract ? Certainly not. The defendant, Camilla Kancer, 
 hath taken the benefit of the bequest in her favour by the 
 mutual Will, and hath proved it as such ; she hath thereby 
 certainly confirmed it ; and therefore I am of opinion, the 
 last Will of the wife, so far as it breaks in upon the mutual 
 AVill is void. And I declare, that Mrs. Camilla Rancer, 
 having proved the mutual AYill, after her husband's death, 
 and having possessed all his personal estate, and enjoyed 
 the interest thereof during her life, hath by those acts bound 
 her assets to make good all her bequests in the said mutual 
 Will ; and therefore let the necessary accounts be taken " {<•). 
 
 (e) See this judgment also reported in 2 Hargr. Jurid. Arg. 272. 
 
 2 Hargr. Jurid. Exerc. 101.
 
 Ch. III.] RevocaUon of Wills. 109 
 
 This case was succeeded by that of Walpolc v. Lord 
 Orford (/), where the Will of George, Earl of Orford, made 
 in 1756, and Horace Lord Walpole's codicil of the same 
 date, made in concert, constituted, in effect, a mutual Will. 
 Horace Lord Walpole died in 1757, without revoking his 
 part of the mutual Will, namely the codicil of 1756 ; George 
 Earl of Orford died in 1791, when it appeared that he had 
 made a codicil in 1776 ; and this by reason of a reference 
 to his last Will, bearing date in 1752, was construed a 
 revocation of his part of the mutual Will, namely, the Will 
 of 1756. A case was then raised in Equity, that the mutual 
 Will of 1756 became irrevocable on the death of Lord 
 Walpole in 1757, though it was admitted to have been 
 revocable by either during the joint lives of Lord Walpole 
 and Lord Orford, with notice to the other. And the 
 judgment of Lord Camden in Dufoiir v. Pereira, was mainly 
 relied on in support of that position. Lord Loughborough, 
 however, refused to enforce the compact of the mutual Will ; 
 but this was chiefly, it seems, by reason of the uncertainty, 
 and, in some sense, unfairness, of the compact ; so that it 
 leaves the principle of Lord Camden's decision in Diifour v. 
 Pereira wholly unshaken {(j). 
 
 And here it may be right to mention that, although a will is Of contracts 
 always revocable notwithstanding a contract not to revoke it, 
 yet such a contract is not illegal and is enforceable if made for 
 good consideration and in such form as to comply with the 
 Statute of Frauds {h). But a mere representation of an 
 intention as distinguished from a contract cannot be enforced, 
 although such representation may have been intended to be 
 acted on and in fact have been acted on (i). 
 
 if) 3 Yes. 402. 407. 
 
 {(j) See 1 Add. 278, note by the (/i) Hammersley v. De Biel, 12 
 
 learned Eeporter to Hobson v. CI. & F. 45. Eobinson v. Om- 
 
 Blackburn, and also Mr. Har- manney, 23 C. D. 285. 
 
 p;rave's remarks on the case of (t) Maddison v. Aklerson, 8 A. 
 
 "Walpole V. Lord Orford, in 2 Jurid, C. 467, disapproving Loffus v. 
 
 Arg. 272. 2 Jurid. Ex. 101. See Maw, 3 GifF. 592, in which case 
 
 albo Chester v. Urwick, 23 Beav. Stuart, V.-C. held that, where a
 
 110 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 1 Yict. c. 26, 
 s. 20. No Will 
 to lie revoked 
 Imt l>y another 
 Will or codicil, 
 or by a writing 
 executed like a 
 Will, or by 
 destruction : 
 
 1 Vict. c. 26, 
 s. 21. No 
 alteration in a 
 Will shall have 
 any effect 
 unless executed 
 as a Will. 
 
 By stat. 1 Yict. c. 26, s. 20, it is enacted, " that no Will or 
 codicil, or any part thereof, shall be revoked otherwise than 
 as aforesaid, [i.e. by marriage under sect. 18,] or by another 
 "Will or codicil executed in manner hereinbefore required, or 
 by some writing declaring an intention to revoke the same (Ic) 
 and executed in the manner in which a Will is hereinbefore 
 required to be executed (l), or by the burning, tearing, or other- 
 wise destroying the same by the testator, or by some person 
 in his presence and by his direction, with the intention of 
 revoking the same." 
 
 And by sect. 21, it is further enacted, " that no oblitera- 
 tion, interlineation, or other alteration made in any Will 
 after the execution thereof shall be valid or have any effect, 
 except so far as the words or effect of the Will before such 
 alteration shall 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." 
 
 testator had induced his niece to 
 continue her services on the faith 
 that he woidd leave her certain 
 property, and took her to his soli- 
 citor's office to see a codicil to that 
 effect, the niece was entitled to 
 have the trusts in her favour, 
 thereby declared, performed, not- 
 withstanding the fact that the 
 testator had by a subsequent codicil 
 revoked the codicil in her favour. 
 {k) Where a testator had oblite- 
 rated the whole of a codicil, in- 
 cluding his signature, by thick 
 black marks, and at the foot of it 
 
 had written the words signed by 
 himseK and attested by two wit- 
 nesses, " we are witnesses of the 
 erasure of the above," it was held 
 that the codicil was revoked, for 
 the words were " a writing declar- 
 ing an intention to revoke " it 
 within this section. In the goods 
 of GosUng, 11 P. D. 79. 
 
 (l) There seems to be some 
 doubt as to whether a writing 
 which only revokes the will to 
 which it is attached ought to be 
 admitted to probate : In the goods 
 of Fraser, L. R. 2 P. & D. 40. See
 
 Cli. III. § I.] By Destruction, &c. Ill 
 
 It may here be observed that, by reason of the above A testator can- 
 enactment contained in the 20th section, a testator cannot wm to be 
 delegate his power of revoking the Will, by inserting in it a jjj2th '^^*^'^* 
 clause conferring on another an authority to destroy it after his 
 death (;m). 
 
 SECTION I. 
 
 Ixei'ocation by Destruction, Burning, Tearing, Cancellation, 
 or Obliteration. 
 
 It will be observed, that the 20th section of the Wills i Vict. c. 26, 
 Act confines the modes of total revocation by means of any 
 act done to the instrument itself, to " burning, tearing, or 
 otherwise destroying.'" 
 
 It is obvious, also, that a part only of a Will may be 
 revoked in the manner here described ; for the statute says 
 that " no Will, or any part thereof, shall be revoked otherwise 
 than, &c., or by the burning, tearing, or otherwise destroying 
 the same," &c. (?;). 
 
 And as to partial revocation, it is further enacted by s. 21 : 
 sect. 21, that no obliteration, interlineation, or other alteration, 
 made after the execution, shall be valid or have any effect, 
 (except so far as the words or effect of the Will before such 
 alteration shall not be apparent) unless such alteration shall 
 be executed in like manner as is required for the execution of 
 th3 Will. 
 
 By the sixth section of the Statute of Frauds, with statute of 
 respect to devises of lands, revocations of this nature were ''^^^'^^'^• 
 confined to "burning, cancelling, tearing, or obliterating the 
 same." 
 
 This section, however, did not extend to Wills of personal Statute of 
 
 Fraudi<, s. 22. 
 
 In the' Goods of Hicks, L. R. 1 Robert. 661, i^er Sir H. Jenner 
 
 P. & D. 683. In the Goods of Fust. 
 
 Hubbard, L. R. 1 R & D. 53. (n) Clarke v. Scripps, 2 Robert, 
 
 (m) Stockwell v. Ritherdon, 1 563, 567, by Sir J. Dodson.
 
 112 
 
 Revocatio7i of Wills. [Pt. i. Bk. ir. 
 
 To what cases 
 the Wills Act 
 extends : 
 
 every act done 
 to a Will after 
 Jan. 1, 183S, 
 must be in 
 compliance 
 with the 
 statute though 
 the Will be 
 made before 
 that date. 
 
 Presumption 
 as to when 
 alterations, 
 &c., shall be 
 presumed to 
 have been 
 made. 
 
 property ; "but with respect to them it was merely provided, 
 by sect. 22, that no Will concerning any goods or chattels 
 or personal estate should be repealed or altered "by any 
 words." 
 
 The 31th section of the Wills Act enacts, that " this 
 Act shall not extend to any Will made before the 1st day 
 of January, 1838; " but the interpretation of the Act, which 
 has been adopted by the Prerogative Court, and approved hj 
 the Privy Council, is, that the operation of the Act was meant 
 only to be suspended with respect to the execution of such 
 Wills as were already made at the passing of the Act and 
 those made between the passing of the Act and the 1st of 
 January, 1838, and that a Will made before the statute came 
 into operation is not exempted from the necessity of complj'- 
 ing with the provisions of the new law icith respect to any act 
 done to it after that pei'iod (o). 
 
 As to the question whether, in a case where unattested 
 alterations- appear on the face of a W^ill, and no infor- 
 mation can be given, and there are no circumstances, one 
 way or the other, to show when the alterations were made, 
 the presumption is, that they were made before or after 
 the execution of the Will, it has been established by the 
 judgment of the judicial committee of the Privy Council, 
 in Cooper v. Bockett (jj), (which has been confirmed by 
 severab subsequent cases (q) ), that the presumption in 
 such a case is that the alterations were made afte?' the 
 
 (o) HoLbs V. Knight, 1 Curt. 
 768. Croker v. Lord Hertford, 4 
 Moo. P. C. 339, 356. 
 
 (p) 4 Notes of Cas. 685. S. C. 
 4 Moo. P. C. 419. 
 
 (g) Gann v. Gregory, 3 De G. 
 M. & G. 780, by Lord Cranwortli. 
 Doe V. Palmer, 16 Q. B. 747. In 
 tlie goods of James, 1 S\v. & Tr. 
 238. In the goods of White, 30 
 
 L. J., P. & M. 55. But in Williams 
 V. Ashton, 1 Johns. & H. 115, 118, 
 Wood, V.C., said he did not think 
 it was quite a correct mode of 
 stating the law, to say that altera- 
 tions in a Will are presximed to 
 have been made at one time or at 
 another ; but that the correct view- 
 is that the onus is cast on the 
 party wlio seeks to derive an ad-
 
 Cli. iiL, § I.] By Destruction, &c. 
 
 113 
 
 execution (r). So where a Will 
 testator's custody, and the Will 
 
 and codicil were in the 
 is found mutilated after 
 
 Presumption in 
 absence of 
 
 his death, in the absence of evidence, the presumption is evidence where 
 that it was mutilated by the testator, after the execution of 
 
 vantage from an alteration in a 
 Will, to adduce some evidence 
 from which a jury may infer that 
 the alteration was made before the 
 Will was executed. 
 
 (r) In order to rebut this pre- 
 sumption, declarations of the tes- 
 tator, before the execution of his 
 Will, that he intended to provide 
 by his Will for a person who would 
 be unprovided for without the al- 
 teration in question, are admissible 
 evidence ; but not declarations, 
 after the execution, that the alter- 
 iition had been made previously : 
 Doe V. PalDier, 16 Q. B. 747. 
 Bench v. Dench, 2 P. D. 60. See 
 ^ost, Pt. I. Bk. IV. Ch. III. § V. 
 But where the deceased executed 
 a Will and codicil, the latter refer- 
 ring to the former by its date, the 
 name of the executor appointed by 
 the WiU being written on an era- 
 sure, the Court admitted the decla- 
 ration of the testator as to the 
 person he had appointed executor, 
 made before the execution of the 
 codicil, and granted probate of the 
 Will and codicil to such executor : 
 In the goods of Sykes, L. R. 3 P. 
 & D. 26. The fact that a date is 
 affixed to the alteration is not 
 evidence to rebut the presump- 
 tion : In the goods of Adamson, 
 L. R. 3 P. & D. 253. It is not 
 sufficient to prove that the testator 
 told the witnesses at the time of 
 attestation, that he had made some 
 alterations in his Will, but did not 
 allow them to see what the altera- 
 tions were : Williams v. Ashton 
 W.E. — VOL. I. 
 
 1 Johns. & H. 115. But when a 
 Will has been prepared in the first 
 instance with the amounts of the 
 legacies in blank, and the amounts, 
 involving, for want of space, some 
 interlineations and alterations, 
 have been afterwards filled in by 
 the testator himself, the Court 
 will presume that they were filled 
 in previous to execution : for it 
 cannot be supposed that the exe- 
 cution was prior to the insertion 
 of the legacies : Birch v. Birch, 1 
 Robert. 675. In the goods of 
 Cadge, L. R. I P. & D. 543. And 
 the mere circumstance of the 
 amount of a legacy, or name of a 
 legatee, being inserted in different 
 ink, and in a different handwriting, 
 does not alone constitute an obli- 
 teration, interlineation, " or other 
 alteration " within the meaning of 
 the statute ; nor does any presump- 
 tion arise against the Will having 
 been duly executed as it appear^^ : 
 Greville v. Tylee, 7 Moo. P. C. 
 320. See also In the goods of 
 Swindin, 2 Robert. 192. Where 
 some trifling alterations and inter- 
 lineations appeared on the face of 
 a holograph Will, and there was 
 no evidence whether they were 
 written before or after the execu- 
 tion, except the affidavit of an 
 expert that, in his opinion, they 
 were written at the same time as tlie 
 rest of the Will, on that evidence 
 the Coui't admitted them to pro- 
 bate : In the goods of Hindmarch, 
 L. R. 1 P. & D. 307. 
 
 mutilated after 
 
 testator's 
 
 death.
 
 114 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Presumption 
 as to altera- 
 tions in Will 
 dated on or 
 after 1 Jan., 
 1S3S. 
 
 Presumption 
 not altered by 
 fact that codi- 
 cil has been 
 duly executed. 
 
 No presump- 
 tion as to alter- 
 ations where 
 "Will is dated 
 before 1 Jan. 
 1838. 
 
 Presumption 
 iu absence of 
 evidence in 
 case of un- 
 attested 
 undated Wdl. 
 
 Act of Revo- 
 cation before 
 1 Jan. 1838. 
 
 the codicil (s). Consequently, if the Will is dated on or 
 after Jan. 1st, 1838, it is obvious that the alterations also 
 must be taken to have been made after the new Act came 
 into opei'ation. It has also been held, that this presump- 
 tion is not at all varied or altered by the circumstance 
 of a codicil to the Will having been duly executed : The 
 presumption of law must still be that the alterations were 
 made after the execution of the codicil {t) ; unless there 
 be proof or internal evidence to the contrary, in which case 
 the codicil, being a republication of the Will, would republish, 
 the Will with the alterations {tt). 
 
 But if the Will is dated before the 1st of Jan., 1838, 
 the point does not appear to be yet settled, whether the 
 presumption is that they were made before or after the Act 
 came into operation ; for though they must be taken to have 
 been made after the execution of the Will, it does not follow 
 that they were on or after Jan. 1st, 1838 {u). It may 
 be observed that in the instance of an unattested Will with- 
 out date, where the case is bare of circumstances from which 
 the time when it was made may be inferred, it has been held 
 that the presumption is that it was made before the Act 
 came into operation {v). 
 
 With respect to what shall amount to an act of destruction, 
 if done before January 1, 1838, sufficient to operate as a total 
 revocation, see the former Editions of this Work, Pt. I., 
 Bk. II., ch. 3, § 1. 
 
 is) Cliri-stmas v. Whinyates, 3 
 Sw. & Tr. 81. 
 
 {t) Lusliington v. Onslow, 6 
 Notes of Cas. 183. In the goods 
 of Bradley, 5 Notes of Cas. 186. 
 
 {tt) Tn the goods of Sykes, L. E. 
 3 P. & D. 26. Tyler v. Merchant 
 ^AJ^ <?<AAm^^. Taylors Co., 15 P. D. SIB./. 
 
 (u) See In the goods of Penning- 
 ton, 1 Notes of Cas. 399. Wynn 
 V. Heveringham, 1 Coll. 630. 
 
 (u) Pechell v. Jenkinson, 2 Curt. 
 273, ante, p. 64. And on the au- 
 
 thority of this case, and of In the 
 goods of Pennington, ante, note 
 ()t), Sir C. Cresswell held, liasitans, 
 that the presumption is the same 
 as to alterations : In the goods 
 of Streaker, 28 L. J., P. M. & 
 A. 50. See also Benson v. Ben- 
 son, L. E. 2 P. & D. 172. As 
 to presumptions in the case of 
 alterations in a will of an officer 
 in actual service, see In the goods 
 of Tweedale, L. E. 3 P. & D. 204.
 
 Cli. III. § I.] By Destruction, dc. 115 
 
 With respect to the acts of destruction or cancellation done What shall 
 after the Wills Act came into operation : It will be observed, a revocatory 
 that the words " cancelling" and "obliterating," which occur tJoViVdone"*^' 
 in the Statute of Frauds, are omitted in the 20th section of after i Jan., 
 
 , . , 1838. 
 
 the Wills Act, and that the words " otherwise destroymg,' jvieaningof 
 are substituted. It has been considered that these latter "otherwise 
 
 destroying. 
 
 words mean modes of destruction ejusdem generis, as 
 cutting, throwing into water, or the like, and, therefore, 
 exclude cancelling (w). And it has been argued, that a still 
 narrower construction ought to prevail, viz. that a revocation 
 of a Will under the new law, by any mode short of actual 
 destruction or annihilation, can only be by burning or tearing. 
 In Hobhs v. Kniglit (x), Sir Herbert Jenner Fust held, that 
 the excision of the name of the testator amounted to a revo- 
 cation of the Will under the terms " otherwise destroying " (y) ; 
 and that it was not necessary, in order to operate a revo- 
 cation, that the whole instrument should be destroyed ; it was 
 sufficient if the entirety or essence of the thing were destroyed : 
 In the present case, the name of the testator, an essential 
 part of the Will, had been removed : And the learned judge 
 proceeded to state that the inclination of his opinion was, 
 upon the same principle, that a testator might revoke his 
 Will by obliterating his signature to it, if the obliteration 
 amounted to a destruction ; if the testator had so carefully 
 obliterated it that it was perfectly illegible : And further, by 
 parity of reasoning, that if the names of the attesting wit- 
 
 (w) Sugden's Essay, p. 46. Can- ing in the world without intention 
 
 cellation by striking through with will not revoke a Will : nor all 
 
 a pen is not a revocation under the intention in the world without 
 
 the Wills Act : Stephens v. Tapp- destroying : there must be the 
 
 rell, 2 Curt. 458. Even though two : Per James, L.J., Cheese v. 
 
 the striking through be done Lovejoy, 2 P. D. 251 — 253. 
 
 animo revocandi : In the goods of (x) 1 Curt. 768. 
 
 Rose, 4 Not. of Cas. 101. In the (y) It is sufficient revocation 
 
 goods of Brewster, 29 L. J. P. & within the section if the signature 
 
 M. 69. A symbolical burning, of the testator is scratched out as 
 
 tearing, or destruction will not with a knife : In the goods of 
 
 do : there must be the act as well Morton, 12 P. D. 141. 
 
 as the intention. All the destroy- 
 
 I 2
 
 116 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Actual burn- 
 ing necessary : 
 intention and 
 attemjjt to 
 burn insuffi- 
 cient. 
 
 nesses were taken away by the testator animo revocandi, it 
 would be a good destruction of the Will under the Act : 
 The learned judge likewise observed, that if the signature 
 had been burnt or torn out, that would be clearly sufficient 
 to revoke : and that if it were necessary to determine the 
 point, he thought it would not be difficult to hold, that 
 cutting is equivalent to tearing. This decision was cited by 
 Sir John Dodson in Clarke v. So'ipps (z) ; And that learned 
 judge said, that he quite agreed with Sir H. J. Fust, that 
 cutting and tearing are equivalent acts (zz). 
 
 It was held, in the construction of the Statute of Frauds, 
 that in order to operate a revocation of a Will, it was not 
 necessary that the instrument itself should be consumed or 
 torn to pieces (a) . 
 
 It was decided, however, that there must be an actual 
 burning of the Will to some extent, in order to effect a 
 revocation of this nature ; and that an intention and attempt 
 to burn was insufficient (b). 
 
 There seems to be no reason why these decisions should 
 not be applied to the Wills Act. But assuming them to 
 be adopted as authorities in its construction, it is difficult 
 to state any precise rule with respect to the extent to which 
 the burning or tearing of the Will must go, in order to 
 
 (2) 2 Rob. 563, 570, 575. 
 
 (zz) Where, however, the Will 
 was found with the testator's ori- 
 ginal signature erased, but another 
 signature appeared at a short dis- 
 tance beneath, Dr. Lushington 
 held, on the facts and circum- 
 stances deposed to, that the origi- 
 nal signature had not been erased 
 animo revocandi as required by the 
 new Wills Act, and that in the 
 probate the original signature 
 must be restored, and the second 
 omitted : In the goods of King, 2 
 Robert. 403. See also In tlie goods 
 of Coleman, 2 Sw. & Tr. 314. But 
 
 A\'here on the death of the deceased 
 a will was found the signature to 
 which had been cut out but 
 gummed to its former place, it 
 was held that the presumption of 
 revocation was not rebutted al- 
 though there was evidence of de- 
 clarations by the deceased of in- 
 tention to benefit his wife bv 
 WiU : Bell v. FothergiU, L. R. 2 
 P. & D. 148. 
 
 (a) Bibb v. Thomas, 2 W. Black. 
 1043. 
 
 (6) Doe V. Harris, 6 A. & E. 
 209. S. C. 2 Nev. & P. 615.
 
 Cli. III. § I.] By Destruction^ &c. ' 111 
 
 effect a revocation : In giving judgment, in Doe v. Harris, 
 
 Lord Denman observed, that doubt might be entertained 
 
 now, whether the proof given in Bibb v. Tliomas would be 
 
 sufficient as to the acts of burning and tearing : Patteson, J., 
 
 said, " There must be, at all events, a partial burning of the 
 
 instrument itself: I do not say that a quantity of words 
 
 must be burnt ; but there must be a burning of the paper on 
 
 which the Will is : " Williams, J., said, " The Will must be 
 
 torn or burnt, and the question will always be whether that 
 
 was done with intention to cancel ; how much should be 
 
 burnt, or whether the Will should be torn into more or 
 
 fewer j)ieces, it is not necessary to lay down : " Coleridge, J., 
 
 said, " The question is put, whether the Will must be 
 
 destroyed wholly, or to what extent ? It is hardly necessary The burning 
 
 to say ; but there must be such an injury with intent to as to destroy 
 
 revoke as destroys the entirety of the Will : because it may *^® wiiT^*^ 
 
 then be said, that the instrument no longer exists as it 
 
 was : " And Sir Herbert Jenner Fust, in giving judgment 
 
 in Hobbs v. Knight {c)^ cited and adopted the view of the 
 
 question thus taken by Mr. Justice Coleridge as applicable 
 
 to the construction of the new statute. 
 
 The same view has been taken by the Courts in several Above view 
 
 approved in 
 
 subsequent cases ; as in Price v. Powell (d), where the Barons subsequent 
 of the Exchequer regarded the tearing off the seal of a W^ill 
 animo revocandi as amounting to a revocation of it by reason 
 of its being a destruction of its entirety. So in Williams v. 
 Tyley (e), where there was the usual statement in the wit- 
 nessing clause at the end of a Will that the testator had set 
 his hand to the preceding pages. Wood, V. C, held, that the 
 testator had thereby made the signatures on those pages a 
 part of his Will, and that the whole Will was revoked by 
 tearing them off, animo revocandi ; and his Honour relied on 
 the above-mentioned case of Price v. Porvell, and approved 
 of the principle on which it had been decided. Again, In 
 the goods of Harris {f), where a testatrix, having executed 
 
 (c) Ante, p. 115. (e) Johns. 529. 
 
 (d) 3 H. & N. 341. (/) 3 Sw. & Tr. 485.
 
 118 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Inclioate and 
 incomplete 
 cancellation 
 shall not 
 revoke. 
 
 her Will by signing her name at the foot of each sheet, 
 cut off the signatures on the first five sheets, and cancelled 
 her own signature at the end of the last sheet, writing 
 underneath that she had cancelled the "Will on a certain day : 
 The last sentence in her Will in effect referred to the signa- 
 tures she had cut off as giving validity to the Will : And it 
 was thereupon considered by Sir J. P. Wilde that the Will 
 was destroyed in its entirety, and could not be admitted to 
 probate. So In the goods of Lewis (g), the Will was held by 
 Sir C. Cresswell to be revoked by tearing off the signatures 
 and attestation. And in another case, before the same 
 judge, In the goods of Gidlan (li), where the testator had 
 subscribed each of the several sheets of -nhich his Will con- 
 sisted at the foot of each sheet in the presence of the attesting 
 witnesses, who thereupon also subscribed each sheet in his 
 presence, and on his death two of the middle sheets of the 
 Will only could be found ; it was held that the signatures 
 at the end of the Will, being the only ones made in 
 compliance of the statute, having been destroyed, the whole 
 Will was revoked, and the sheets that had been found, 
 though duly attested, could not be admitted to probate. 
 
 It must be here observed, that if the act of destruction or 
 cancellation be inchoate and incomplete, it will not amount 
 to a revocation. Thus in Doe v. Perkes (/), it appeared that 
 the testator, being moved with a sudden impulse of passion 
 against one of the devisees under his Will, conceived the 
 intention of cancelling it, and of accomplishing that object 
 by tearing : Having torn it twice through, his arms were 
 arrested by a bystander, and his anger mitigated by the 
 submission of the party who had provoked him : He then 
 proceeded no further, and after having fitted the pieces 
 together, and found that no particular word had been oblite- 
 rated, he said, " It is a good job it is no worse." Upon this 
 evidence, it was left to the jury to say whether the testator 
 
 [g) 1 Sw. & Tr. 31. 
 
 {h) Ibid. 125. 
 
 (i) 3 B. & A. 489. 
 
 See Accord. 
 
 In the goods of Colberg, 2 Curt. 
 832. Giles v. Warren, L. R. 2 P. 
 & D. 401.
 
 Ch. in. § I.] 
 
 By Destruction. 
 
 119 
 
 had done all he intended, or ^vllethe^• he was prevented from 
 •completing the act of destruction he intended : They found 
 that he was so prevented, and the Court of King's Bench 
 held, that their verdict was right, and that there was no 
 revocation of the Will {k). 
 
 cation will be complete ; but tlie 
 question which arises upon the 
 evidence, and which question alone 
 renders the subsequent declara- 
 tions of the testator admissible, is, 
 whether he had proceeded as far as 
 he intended in the destruction of 
 the Will. If, after he had torn the 
 Will in the manner in which it 
 appears from the evidence that he 
 did, he had thrown it upon the 
 ground, that might have been a 
 circumstance from which to have 
 inferred that the act of destruction 
 was complete. A case may be put 
 of a person throwing his Will on 
 the fire, with the intention of 
 burning it, and in consequence of 
 some observation made by a by- 
 stander snatching it off again before 
 it be burnt ; there, although the 
 Will be scorched, I do not appre- 
 hend that it would amount to a re- 
 vocation, since the act of destruc- 
 tion by the testator would not in 
 such a case have been completed. 
 The question of intention, however, 
 is purely a question of fact ; and 
 therefore, exclusively within the 
 province of the jury to decide. If 
 the jury think that what the testa- 
 tor intended at the time he tore 
 the Will was comjjleted, the heir 
 at law is entitled to recover ; but 
 if they think that his intention at 
 that time was not completed, the 
 question of law then arises ; and I 
 am of opinion that it will not in 
 point of law amount to a revoca- 
 tion." Gow. 186. 
 
 {k) Mr. Justice Holroyd, before 
 whom this case was tried, in sum- 
 ming up the evidence to the jury, 
 observed that the sixth section of 
 the Statute of Frauds does not 
 make a tearing merely and of itself 
 a revocation. " A tearing," said 
 the learned judge, " is not a revo- 
 cation since the statute, if the same 
 effect could not be ascribed to it 
 before the statute passed. In the 
 ■case of Hyde v. Hyde, (see post, 
 p. 127,) there was a tearing of the 
 Will ; but it was held not to amount 
 to a revocation, because there could 
 not, from the circumstances of that 
 case, be any inference of an inten- 
 tion to revoke. So the act of tear- 
 ing may be intentional, and yet 
 not amount to a revocation ; if, as 
 was the case in Onions v. Tyrer, 
 {j)Ost, p. 126,) the tearing be ascrib- 
 €d to mistake. This, however, 
 does not seem to be a case of mis- 
 take ; for the tearing was in some 
 ■degree, at least for some period of 
 time, with the intention of destroy- 
 ing the effect of the Will ; and if 
 the destruction was complete, the 
 subsequent declarations of the tes- 
 tator would be of no avail since 
 the Will could not be again set up, 
 •except by a codicil or republica- 
 tion of it, in the presence of three 
 witnesses. One question will there- 
 fore be, whether there has been 
 such a complete destruction of the 
 Will as to amount to a revocation ; 
 and that is purely a question of 
 fact. If the testator intended by 
 his acts wholly to revoke, the revo-
 
 120 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Act of revoca- 
 tion must take 
 place in 
 testator's 
 presence : 
 
 and by his 
 direction. 
 
 In accordance with this authority, the case of Elms v. 
 Elms (I) was decided. In that case the testator tore the 
 Will almost in two, hut was stopped hy the exclamations 
 of persons in the room as to the danger of destroying the 
 existing "Will before making another : Sir Cresswell Cresswell 
 laid down the law to he, that in order to revoke a Will by 
 tearing it, it is not necessary to rend the Will into more- 
 pieces than it originally consisted of, but that it is sufficient 
 if the testator intended the tearing actually done of itself to- 
 work a revocation without any further act — in other words^ 
 if when he ceased tearing, he had done all that he contem- 
 plated doing for the purpose of revoking : But the learned 
 judge, having regard to all the evidence in the case, was not 
 satisfied that the testator did so intend, and therefore held 
 that the Will was not revoked. 
 
 It should be borne in mind that to operate a revocation, 
 the act of " burning, tearing, or otherwise destroying," is 
 required by the 20th section to be done by the testator or 
 by some person in Jiis lyrcscncc, and hy his direction (?»)< 
 Therefore, in a case where a codicil had been burnt by the 
 testator's order with intent to revoke, hut not in his presence, 
 probate was decreed of a draft copy of the codicil (n). And 
 where the Will of a testatrix was destroyed in her presence, 
 but icitJiout her consent or authority, by a relative, and sub- 
 sequently the testatrix, though pressed to do so, refused tO' 
 make a new Will (saying that she could not bring her mind 
 to it, and that it must remain as it was), it was held, that 
 there was no sufficient evidence of a subsequent ratification 
 of the destruction of the Will so as to constitute it an act 
 done hy the direction and hy the authority of the testatrix (o). 
 
 (0 1 Sw. & Tr. 155. 
 
 (m) See ante, p. 110. 
 
 (n) In the goods of Dadds, Dea. 
 & Sw. 290. 
 
 (o) Mills V. Millward, 15 P. D. 
 20. Qurnre, liowever, whether 
 where a Will has been destroved 
 
 not only without the authority of 
 the testatrix, but against her wish, 
 any subsequent ratification of the- 
 act of destruction will make it a 
 revocation within sect. 20 of thet 
 Wills Act (J6).
 
 Ch. III. § I.] By Ohliteration, Alteration, &c. 121 
 
 It lias already been pointed out, that under the 20th sec- EfiFcct (under 
 tion of the Wills Act, a part only of a Will may be revoked s.^20) o/muti- 
 in the manner described («). Accordinffly, it has been held !t*'",lr-??''^*' °^ 
 
 ^-^ O J ' tJjg Will. 
 
 that if the testator after the execution of the Will destroy 
 part only of it, by tearing or cutting awa}', or cutting out 
 portions of it, animo revocandi as to the parts so removed, this 
 Avill amount to a revocation ^ro ^awio (r^). But with respect Intention of 
 to the destruction of a part, it should seem that the intention governs extent 
 with which the act is done must govern the extent of opera- °^q*^^ opera- 
 tion to be attributed to the act, and determine whether it 
 shall effect the revocation of the whole instrument, or only of 
 some and what portion of it (r). And the intention to revoke Evidence of 
 wholly, or only in part, may be evidenced either by proof of revoke' wholly 
 the expressed declaration of the testator of his intention in ^^' °"'^ '" ^^'^' 
 doing the act, or by proof of circumstances from which it 
 may be inferred, or by the state and condition to which the 
 instrument has been reduced by the act itself (s). Accord- 
 ingly, in Clarke v. Scripps {t), where a testator executed his 
 Will in 1843, and it remained in his custody until his death, 
 when it was found in a mutilated state, torn and cut, but 
 with the signatures of the testator and of the attesting wit- 
 nesses remaining at the end of the Will, it was held by Sir 
 J. Dodson, (after a full and able review of all the cases, and 
 a statement of the principles to be derived from them), that 
 in the absence of extrinsic evidence, it ought to be con- 
 sidered, from the peculiar manner in which the mutilations 
 were effected, that the testator (who died suddenly) did not 
 intend to revoke the whole Will, but to revoke it in part 
 only; and that the papers, as altered, were intended for a 
 draft of a new Will, and which should itself operate as his 
 
 {f) Ante, p. 111. L. R. 2 P. & D. 206. 
 
 (5) In the ^'oods of Lambert, 1 (s) Clarke v. Scripps, 2 Robert. 
 
 Notes of Cas. 131. In the goods 568. Williams v. Jones, 7 Notes 
 
 of Cooke, 5 Notes of Cas. 390. of Cas. 106. In the goods of 
 
 Clarke v. Scripps, 2 Robert. 563, Maley, 12 P. D. 134. 
 
 572. (0 2 Robert. 563. But see Tre- 
 
 (r) Clarke v. Scripps, 2 Robert. loar v. Lean, 14 P. D. 49. 
 567. In the goods of Woodward,
 
 122 
 
 Partial revoca- 
 tion by oblite- 
 ration, destruc- 
 tion, inter- 
 lineation or 
 other altera- 
 tion under the 
 old law. 
 
 Under Wills 
 Act, s. 21 ; 
 
 formalities 
 necessary for 
 obliterations 
 and other 
 alterations : 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Will, should he die without completing his object of making 
 a formal one. Accordingly, in Christmas v. miinyates{u), 
 where part of the top of the second sheet of a Will with a 
 codicil had been cut off, including the signature of the tes- 
 tatrix on the upper part of the second side, Sir Cresswell 
 Cresswell, judging from the manner in which the Will and 
 codicil had been cut, care having been taken to avoid cutting 
 off the names of the attesting witnesses on the sheet that 
 had been mutilated, and the signature and attestation of 
 the codicil being left untouched, that the intention of the 
 testatrix was only to revoke as much of the Will as had 
 been cut off, and to preserve the codicil and so much of the 
 Will as remained; and probate was accordingly decreed of 
 the Will as it then stood and the codicil (x). In a late case, 
 where a testator after duly executing his Will (which was 
 in five sheets, each of which was signed by himself and 
 initialled by the attesting witnesses,) took out three sheets 
 and substituted three new ones, which he signed, but w-hich 
 were not attested, and did not alter the date of the Will nor 
 resign it, nor was the Will re-attested ; it was held, that the 
 Will was not entitled to probate (y). 
 
 As to partial revocation by cancellation or obliteration prior 
 to the Wills Act, see the former Editions of this Work, Pt. I., 
 Bk. II., Ch. 3, § 1, and the case oi Sivinton v. Bailey{z). 
 
 With respect to alterations and obliterations made since 
 the Wills Act came into operation (1st Jan., 1838), it is 
 required (sect. 21), in order to give effect to any obliteration, 
 interlineation, or other alteration, that such alteration shall 
 be executed as is required for the execution of the Will, 
 with this difference, that the signature of the testator and 
 the subscription of the witnesses {a) need not be at the foot 
 
 {u) 3 Sw. & Tr. 81. 
 
 (x) See also in the goods of 
 Woodward, L. R. 2 P. & D. 206, 
 that the mere cutting off three 
 lines from the beginning of the 
 Will does not, without other cir- 
 
 cumstances, show an intention to 
 revoke the whole Will. 
 
 {y) Treloart'. Lean, 14 P. D. 49. 
 
 {z) 1 Ex. D. 110; 4 App. Cas. 
 70. 
 
 (a) The initials of a testatrix
 
 Cli. III. § I.] By Ohliteration, Alteration, &c. 
 
 123 
 
 or end of the Will, but may be made in the margin or 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 (/.). 
 
 The statute (sect. 21) contains an exception in this respect, 
 viz. ' ' except so far as the words and effect of the Will before 
 such alteration shall not be apparent." Consequently, if consequences 
 
 . 1 °^ complete 
 
 the words are completely obliterated, so that it cannot be obliteration: 
 made out what they originally were, the obliteration is valid, 
 and probate must then be granted, as if there were blanks 
 in the Will(c). 
 
 and the attesting witnesses in the 
 margin of a Will opposite inter- 
 lineations are sufficient to render 
 the interlineations valid. In the 
 goods of Blewitt, 5 P. D. 116. 
 
 (6) "Where a testator at the Le- 
 ginning of his Will disposed of 
 certain leasehold houses for the 
 benefit of his children, and the 
 words describing one of such 
 houses were struck through by a 
 pen, and at the end of the Will a 
 clause was interlined bequeathing 
 such house to his wife, and under 
 the signature of the deceased and 
 the witnesses a memorandum duly 
 signed and attested was added, to 
 the eff"ect that the above words had 
 been struck out for the benefit of 
 the testator's wife, Sir J. Hannen 
 held, that the memorandum re- 
 ferred to the interlineation as well 
 iis to the obliteration. In the goods 
 ofTreeby, L. E. 3 P. & D. 242. 
 See further as to the position of 
 the signature of the testator and 
 attesting witnesses. In the goods 
 of Wilkinson, 6 P. D. 100. 
 
 (c) In a case on motion, Sir H. 
 Jenner Fust ordered, that the era- 
 sures in a Will should be carefully 
 
 examined in the Registrj', with 
 the help of glasses, by persons ac- 
 customed to writing, to ascertain 
 whether they could be made out, 
 and directed that probate should 
 pass with the erased passages re- 
 stored, unless they could not be 
 made out, and then with those 
 parts in blank : In the goods of 
 Ibbetson, 2 Curt. 337. See also In 
 the goods of Beavan, 2 Curt. 369. 
 In the goods of James, 1 Sw. & 
 Tr. 238. But in a recent case Sir 
 J. Hannen refused to order a piece 
 of paper on which a new bequest was 
 written, and which was pasted over 
 a whole legacy, to be removed, and 
 directed probate to issue in blank 
 as to that legacy. In the goods of 
 Horsford, L. R. 3 P. & D. 211. 
 Generally speaking, the Court of 
 Probate will not, in the first in- 
 stance, take upon itself to decide 
 whether the words obliterated can 
 or cannot be made out. If it be 
 asserted in an allegation that they 
 are capable of being distinguished 
 on the face of the Will, the Court 
 will refer such an allegation to 
 proof, and then pronounce its judg- 
 ment according to the testimony
 
 124 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 evidence 
 aliunde inail- 
 inissible : 
 
 consequenncs 
 of complete 
 obliteration 
 
 The words in this exception " shall not be apparent " 
 seem to mean " apparent on an inspection of tbe instrument 
 itself;" and not "capable of being made apparent by 
 extrinsic evidence." And consequently it has been held that 
 the Court is not at liberty to resort to evidence aliunde; 
 e.g. to refer to a draft copy or to the instructions for the 
 Will {d). It was the intention of the Legislature in this 
 respect, that if a testator shall take such pains to obliterate 
 certain passages in his Will, and shall so effectually accom- 
 plish his purpose, that those passages cannot be made out 
 on the face of the instrument itself, it shall be a revocation as 
 good and valid, as if done according to the stricter forms 
 mentioned in the Act of Parliament {e). 
 
 And in the earlier view taken by the Prerogative Court 
 of this clause, it was considered as a consequence of this 
 withuDattested construction, that in a case where a legacy was given, and 
 
 substitution. ' o J o ' 
 
 the amount was afterwards obliterated by the testator and 
 another sum written by him over the obliteration, by way of 
 substitution, but without the attestation required by the Act, 
 although the alteration would be wholly ineffectual, and the 
 legacy would be pronounced for as originally given, should the 
 Will continue legible in this respect (/), yet if the oblitera- 
 tion should be such, that it could not be made out upon 
 inspection of the Will what was the amount of the sum 
 originally given, the legacy would be lost altogether, because 
 the unattested substitution was not a valid alteration, and 
 the original bequest was revoked by the obliteration which 
 had rendered it illegible {(j). 
 
 It was suggested, in a former edition of this Treatise, that 
 cases of this sort might admit of the application of the doc- 
 
 which may be offered at the hear- 
 ing. Townley r. "Watson, 3 Curt. 
 739. 
 
 {(l) Townley r. "Watson, 3 Curt. 
 761. 
 
 {e)Ih. 
 
 (/ ) In the goods of Beavan, 2 
 Curt. 369. 
 
 ((/) In the goods of Eippin, 2 
 Curt. 332. See also In the goods of 
 Brooke, Ibid. 343. In the goods of 
 Livock, 1 Curt. 906.
 
 Ch. III. § I.] By Obliteration, Alteration, &c. 125 
 
 trine of dependent relative revocations (/t), and it is now Case wbea 
 settled, that where a testator entirely erases the original Juundex^ 
 words, intending to revoke a legacy by substituting a different ^'I'^is'^ii^le. 
 sum from that originally given, and such substituted legacy 
 is not effectually given, the original legacy is not revoked, 
 and evidence aliunde is admissible to show what the words 
 were (i). 
 
 The statute provides (s. 20) that the acts prescribed for The acts pre- 
 the revocation of Wills must be done " with the intention of revocatiou 
 revoking the same." This enactment appears to have been ^lustbedone 
 
 "^ _ '■ '■ ammo revo- 
 
 unnecessary, inasmuch as the law was fully established to the candi. 
 
 same effect at the time of the passing of the Act. The act 
 
 done without the intention to revoke is wholly ineffectual (k). 
 
 It is clear that an insane person cannot have any intention. 
 
 Where there is proof that the Will was duly executed by a Mutilation by 
 
 testator who afterwards became insane, the onus of showing hTs become*' 
 
 that it had been mutilated by the testator when of sound i"^^^!^- 
 
 mind is on the party alleging the revocation (I), 
 
 All questions of revocation of Wills have ever been regarded 
 
 in the Ecclesiastical Courts as questions, to some degree, of 
 
 (h) See post, p. 126, et seq. And ton, 14 P. D. 82, where a testatrix 
 
 see Brooke v. Kent, 3 Moo. P. C. being under an erroneous impres- 
 
 334. sion that a codicil had not been 
 
 (i) Soar v. Dolman, 3 Curt. 121. duly executed, directed it to be 
 
 Townley v. Watson, ibid. 769. See torn up and sent to her solicitor to 
 
 In the goods of Bedford, 5 Notes of be recopied, but died before she 
 
 Cas. 188. In the goods of Harris, could re-execute it, it was held that 
 
 1 Sw. & Tr. 536. In the goods of probate of the codicil might be 
 
 Parr, 29 L. J., P. M. & A. 70. In allowed. 
 
 the goods of Horsford, L. R. 3 P. & (l) Harris v. Berrall, 1 Sw. & Tr. 
 
 D, 211. In the goods of Green- 153. See mite, p. 36. Sprigge v. 
 
 wood [1892] P. 7. The principle Sprigge, L. R. 1 P. & D. 608. 
 
 of dependent relative revocatiou Benson v. Benson, L. R. 2 P. & D. 
 
 applies to a case where a testator 172, 176. Where a person when 
 
 had so entirely erased the name suffering from delirium tremens 
 
 of a legatee that it was no longer tore up his Will, and on his 
 
 apparent, and had substituted recovery said that he was mad to 
 
 another name for it. In the goods do it, the Court held that there was 
 
 of McCabe, L. R. 3 P. & D. 94. no revocation. Brunt v. Brunt, L. 
 
 (Ic) Clarkson v. Clarkson, 2 Sw. R. 3 P. & D. 37. 
 & Tr. 497. In the "oods of Thorn-
 
 126 
 
 Revocation 0/ Wills. [Pt. i. Bk. u. 
 
 Presumption of 
 law as to acts 
 of amoellation 
 and oblitera- 
 tion. 
 
 Dependent 
 relative revo- 
 cations : 
 
 cancellation 
 dependent 
 upon the 
 efficacy of 
 another act. 
 
 intention, and every fact of revocation may in some sort be 
 said to be equivocal {m) : But cancelling and obliterating have 
 always been considered peculiarly as equivocal acts, wbich, in 
 order to operate a revocation, must be done with intention to 
 revoke. The presumption of law, immd facie, is that such 
 acts are done ammo rcvocandi (n). 
 
 But this presumption may be repelled by evidence, showing 
 that the animus did not exist. — As if a man was to throw ink 
 upon his Will instead of sand, though it might be a complete 
 defacing of the instrument, it would be no revocation : or 
 suppose a man, having two Wills of different dates by him, 
 should direct the former to be cancelled, and, through mis- 
 take, the person directed should cancel the latter, such an act 
 would be no revocation of the latter Will (0). 
 
 This principle, that the effect of the obliteration, cancelling, 
 &c., depends upon the mind with which it is done, having been 
 pursued in all its consequences, has introduced the doctrine of 
 dependent relative revocations, in which the act of cancelling, 
 &c., being done with reference to another act, meant to be an 
 effectual disposition, will lea revocation or not, according as 
 the relative act be efiicacious or not. 
 
 Thus, in Onions v. Tyrer {p), a man made a second Will, 
 to the use of the same person to whom he had devised the 
 land by the first Will, with a variation only in the name of 
 one of the trustees : but which second Will was not good, 
 because not duly attested according to the Statute of Frauds : 
 After so executing the second Will, he cancelled the first by 
 tearing off the seal : One question was whether the cancelling 
 of the former Will was a revocation thereof within the 
 Statute of Frauds and Perjuries : And it was held, that it 
 was not ; because there was no self-substituting independent 
 
 {rn) Smith f. Cimningliam, 1 Add. 
 455. 
 
 (n) Rickards r. Mumford, 2 
 Phillim. 28. In the goods of Lewis, 
 27 L. J., P. M. & A. 31. 
 
 {ft] OkIc ns V. Tyrer, 1 P. "Wms. 
 
 345, in Lord Cowper's judgment. 
 Bttrtenshaw r. Gilbert, Cowp. 52, 
 in Lord Mansfield's judgment. 1 
 Saund. 280, h. c. note to Duppa r. 
 Mayo. 
 
 if) 2 Vern. 742.
 
 Cli. III. § I.] Bij Ohliteratio7i, Alteration, &c. Ill 
 
 act, but done to accompany, or in way of affirmation of the 
 second Will : It was done from an opinion that the second 
 Will had actually revoked the first, which induced the testator 
 to tear that, as of no use : Therefore, if the first was not 
 effectually revoked by the second, neither ought the act of 
 tearing the first to revoke it ; for, though a man might, by 
 the Statute of Frauds, as effectually destroy his Will by 
 tearing or cancelling it, as by making a second Will, yet, 
 when he intended to revoke the first Will by the second, 
 and it was insufficient for that purpose, as in the principal 
 case, and the tearing and cancelling the first was only in 
 consequence of his opinion that he thereby made good the 
 second W^ill, the tearing and cancelling should not destroy 
 the first, but it ought to be considered as still subsisting 
 and unrevoked {q). And the principle of this decision was 
 recognized by Lord Mansfield in the case of Burtenshaw v. 
 Gilbert (r) ; by Lord Ellenborough in Perrot v. Perrot (s) ; 
 and by Sir John Nicholl in Lord John Thynne v. Stanliope (t). 
 So in the case of Hyde v. Hyde (u), where the testator, 
 having given instructions for some immaterial alterations in 
 a properly executed Will, read over a draft of a new Will 
 made according to such instructions, and having signed such 
 draft, tore the seals from his old Will, under the impression 
 that his new Will was completely executed so as to pass 
 lands ; this was held to have been done sine animo canccl- 
 landi, and therefore to be no revocation of the original Will. 
 
 Again in Hyde v. Mason (x) the testator duly, according 
 to the Statute of Frauds, made and executed his Will in 
 duplicate, and one of the duplicates was delivered to one 
 of the executors, — The testator, about three weeks before his 
 death, made several alterations and obliterations with his 
 
 (2) It would have made no differ- (s) 14 East, 440. 
 
 ence if the latter Will had Leen in {t) 1 Add. 53. 
 
 favour of another person from the (u) 1 Eq. Cas. Abr. 409. 
 
 former : See Sir Wm. Grant's (x) Vin. Abr. Devise (K. 2), pi. 
 
 judgment in E'a; 2^0,'i'te the Earl of 17, S. C. ■nomine Limbery v. Mason, 
 
 Ilchester, 7 Ves. 379. Com. Eep. 451. 
 
 (r) Cowp. 52.
 
 128 Revocation of Wills. [Pt. I. Bk. ii. 
 
 own hand, in the dupHcate remaining in his own custody, 
 making a new devise of his real estate, and a new residuary 
 legatee, and a new executor, entirely striking out the names 
 of the first devisees, residuary legatees, and executors, and 
 altered several of the former legacies, and inserted or inter- 
 lined new legacies. And soon after he wrote another Will 
 with his own hand, agreeable in great measure, but not 
 altogether, to the Will or duplicate so altered, with the 
 conclusion in these words : " In witness whereof I the said 
 testator have to each sheet set my hand, and to the top 
 where the sheets are fixed together, my hand and seal, and 
 to the last thereof my hand and seal, and to a duplicate of 
 the same tenor and date this day of 1730." But 
 
 there was no signing or fixing together. The testator soon 
 after began to write another will, word for w^ord with the 
 last, as far as it went, but proceeded no farther than devising 
 his lands. The testator lived six days after, and was in 
 good health, and might have finished and executed both or 
 either of the later Wills if he had thought fit. The testator 
 never sent to or called upon the executor for the duplicate 
 of the first Will in his hands, though the executor lived in 
 London, where the testator also resided. After the death of 
 the testator all the testamentary papers or schedules were 
 found lying all in loose and separate papers, upon a table 
 in his closet, not signed or executed, and the duplicate of 
 the first Will was found on the same table, altered and 
 obliterated {iit supra) with his name and seal thereto, whole 
 and uncancelled. In the Prerogative Court sentence was 
 given for the duplicate of the first Will in the executor's 
 hands : and upon aj^peal to the Delegates the sentence was 
 confirmed by Lord Raymond, Mr. Justice Probyn, Dr. Tyndall, 
 and Dr. Brampton. A commission of review was afterwards 
 applied for and obtained : and after further hearing, &c., 
 before the commissioners of review, the former sentence of the 
 Prerogative Court was again affirmed by all the Delegates, 
 except Dr. Pinfold, viz., by Pieynolds, C.B., Page, J., and 
 Comvns, B., and two doctors of the civil law, chiefly on the
 
 Ch. III. § I.] By Obliteration, Alteration, &c. 129 
 
 reason that the testator did not intend an intestacy ; and by 
 the alterations and obliterations in his own duplicate of the 
 first Will, he appeared only to design a new Will, which, as 
 he never i^erfectcd, the first ought to stand ; and his not calling 
 for the duplicate in the executor's hands strengthened the 
 presumption of his intent, not absolutely to destroy his first 
 Will till he perfected another, which he never did. 
 
 In the case of Winsor v. Pratt {y), the testator, in July, 
 1812, made his Will, by which he devised certain real estates 
 to his wife for life, and on her death to her mother, and on 
 the death of his wife and her mother to his executors, in fee 
 upon certain trusts. In November, 1816, he made various 
 interlineations and obliterations, the effect of which, as re- 
 garded his real estate, was, to confine the first devise to his 
 wife for her widowhood, and to strike out the devise to her 
 mother. The original date was struck out, and day 
 
 of Nov. 1816, was substituted. The Will was never re-signed, 
 republished, or re-attested, but in the following month the 
 testator caused a fair copy to be made, and added one inter- 
 lineation not affecting his real estate, but the copy was never 
 signed, attested, or published : and in Dec. 1816, the testator 
 died. The Court of Common Pleas were of opinion, that, 
 under such circumstances, the interlineations and obliterations 
 were inoperative, and that there was no revocation of the Will 
 as it originally stood : And Dallas, C.J., in giving his judgment, 
 observed : " The effect of cancelling depends upon the validity 
 of the second Will, and ought to be taken as one act done at 
 the same time ; so that if the second Will is not valid, the 
 cancelling of the first, being dependent thereon, ought to be 
 looked upon as null and inoperative." 
 
 In a case in the Prerogative Court, an executor, having, in 
 pencil, altered a Will (by the direction of the testator, who 
 approved of it when so altered), and then cancelled it, only in 
 order that another might be drawn up, the preparation of 
 which was prevented by the death of the testator, Sir John 
 
 (i/) 2 Brod. & Bing. 650. S. C. 5 Moore, 484. 
 W.E. — VOL. I. K
 
 130 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Cancellation 
 made under a 
 mistake of 
 law. 
 
 (General 
 principle of 
 the cases. 
 
 Niclioll held, that such cancellation, being preparatory to the 
 deceased making a new "Will, and conditional only, was not a 
 revocation {z). 
 
 Cancellation, under the influence of a mistake in point of 
 law, seems to be equally inoperative to revoke, as if made 
 under a mistake of fact. "If a man," said Lord Ellen- 
 borough, in the case of Perrott v. Perrott {a), " cancel his- 
 Will under a mistake in point of fact, that he has completed 
 another, when he really has not, as was the case in Hyde 
 v. Hyde, the cancellation is void : and if he cancel it, under 
 a mistake in law, that a second Will (complete as to the 
 execution) operates upon the property contained in the firsts 
 when from some clerical rule it really does not ; shall this be 
 deemed a valid cancellation ? " (b). 
 
 The general principle of the above cases was laid down by 
 Lord Alvanley in Ex parte Lord Ilchester (c), as completely 
 established, that, where it is evident that the testator, though 
 
 {z) In the goods of Applebee, 1 
 Hagg. 143. See also In the goods 
 of De Bode, 5 Notes of Cas. 189. 
 Accord. In the goods of Eeles, 2 
 Sw. & Tr. 600. In these cases the 
 parties interested consented. See 
 also for cases where the revocation 
 •\vas held to be absolute and not 
 dependent. In the goods of Mitche- 
 son, 32 L. J., P. M. & A. 202. In 
 the goods of Gentry, L. R. 3 P. & 
 D. 80. Eckersley v. Piatt, L. E. 1 
 P. & D. 281. For further cases 
 ■where the revocation was held to be 
 dependent, see Short v. Smith, 
 4 East, 419. Kirke v. Kirke, 4 
 Russ. Ch. C. 435. Locke v. James, 
 11 M. & W. 901. In the goods of 
 Middleton, 3 Sw. & Tr. 583. 
 Dancer v. Crabb, L. R. 3 P. & D. 
 98. Powell V. Powell, L. R. 1 P. 
 & D. 209, questioning Dickinson v. 
 Swatman, 30 L. J., P. &^M. 84. 
 
 (a) 14 East, 440. 
 
 (6) So in James v. Shrinipton, 
 
 1 P. D. 431, the testator having 
 duly executed a Will, subsequently 
 married, and on the day of, and 
 after, the marriage ceremony he exe- 
 ciited a codicil, by which he made 
 a provision for his wife, and in all 
 other respects revived, ratified, and 
 confirmed his Will ; his wife pre- 
 deceased him, and on his death 
 the codicil, which had been in his 
 possession, could not be found ; de- 
 clarations of the testator of a desire 
 to adhere to his Will were proved, 
 extending up to the latest period 
 of his life. Sir J. Hannen held 
 that the testator could not have in- 
 tended by the destruction of the 
 codicil to render his WiU inopera- 
 tive, and that the Court would 
 therefore grant probate of the Will 
 and of the codicil as contained in 
 a draft from which the original 
 was prepared. See also Dancer v. 
 Crabb, L. R. 3 P. & D. 98. 
 (f) 7 Yes. 372.
 
 Ch. III. § I.] By OhUteration, Alteration, do. 131 
 
 using the means of revocation, could not intend it for any 
 other purpose than to give effect to another disposition, 
 though, if it had heen a mere revocation, it would have had 
 effect, yet, the object being only to make way for another 
 disposition, if the instrument cannot have that effect, it shall 
 not be a revocation (d). 
 
 In connection with this principle, it has been established a "Will is rot 
 (as will hereafter fully appear) (e), that a subsequent Will subsequent^ 
 made under the impulse of a mistaken notion of facts will not ^''^ ^^^^ 
 
 under mistake 
 
 revoke a former one. of fact. 
 
 But where the second disposition fails for want of capacity rpjjg ^.^j^ 
 in the legatee to take, it appears to be established (though it '^^^^^^ "^^^^ 
 
 *= , . ^ '^ the gift fails 
 
 has been thought difficult to make a satisfactory distinction) by incapacity 
 that the revocation would be effectual (/). 
 
 A codicil is, prima facie, dependent on the Will ; and the When a de- 
 destruction or mutilation of the W^ill is an implied revocation mu'tHation'of 
 of the codicil (fj). But Lord Penzance appears to have taken ^^^ ^''' '^ ^ 
 
 '■ ^ : evocation of 
 
 a different view of this subject, and to have held that since the codicil, 
 the passing of 1 Vict. c. 26, s. 20 (see ante, p. 110), the 
 words of this statute are imperative, and, consequently, that 
 when a testator has once executed a testamentary paper, that 
 paper will remain in force unless revoked in the particular 
 
 (d) See also the same rule laid Powell v. Powell, ubi s^q). : qiies- 
 
 down by Sir Wm. Grant in the tioning on this point, Dickinson 
 
 same case, 7 Ves. 279. For other v. Swatman, 30 L. J., P. & M. 84. 
 
 cases illustrating this rule, see Compare In the goods of Weston, 
 
 Scott V. Scott, 1 Sw. & Tr. 258. L. R. 1 P. & D. 633, in which case 
 
 In the goods of Cockayne, Dea. & Lord Penzance refused to hold 
 
 Sw. 177. Dickinson v. Stidolph, that the revocation was dependent. 
 
 11 C. B., N. S. 341. Williams v. (e) Post, p. 146. 
 
 Tyley, Johns. 535, per Wood, V.C. (/) Tupper v. Tupper, 1 Kay & 
 
 In the goods of Middleton, 3 Sw. J. 665. Quinn v. Butler, L. R. 6 
 
 & Tr. 583. Powell v. Powell, L. Eq. 225. 
 
 R. 1 P. & D. 209. The rule (g) Coppin v. Dillon, 4 Hagg. 
 
 applies whether the revocation is 361. Grim wood v. Cozens, 2 Sw. 
 
 dependent upon the execution of & Tr. 364. In the goods ot Dutton, 
 
 a Will in substitution or upon the 3 Sw. & Tr. 66. In the goods of 
 
 erroneous assumption of the vali- Greig, L. R. 1 P. & D. 72. 
 dity of a will executed before : 
 
 K 2
 
 132 
 
 Duplicate 
 "Wills: 
 
 Revocation of Wills. [Pt. i. Bk. ii 
 
 manner named in tins section {h). But it may be doubted 
 whether the view above taken by his Lordship is correct (0, 
 and whether the destruction or mutilation of the Will 
 is not an implied revocation of the codicil by reason of 
 the very nature of the instrument, just as the mutila- 
 tion of the part of any duplicate Will in the testator's 
 own custody is a revocation of both duplicates. And, 
 independently of the view of Lord Penzance as to the 
 construction of this statute, there have been cases where 
 the codicil has appeared so independent of, and unconnected 
 with the Will, that, under the circumstances, the codicil 
 has been established, though the Will has been held 
 invalid. It was regarded as a question altogether of inten- 
 tion. Consequently the legal presumption in this case might 
 be repelled, namely, by showing that the testator intended 
 the codicil to operate, notwithstanding the revocation of the 
 
 If a Will be executed in duplicate, and the testator 
 
 (/i) III tlie goods of Savage, L. R. 
 2 P. & D. 78. Black v. Jobling, 
 L. R. 1 P. & D. 685. In the goods 
 of Turner, L. R. 2 P. & D. 403, 
 followed by Butt, J., in Gardiner 
 V. Courthope, 12 P. D. 14. 
 
 (i) Sugden v. Lord St. Leonards, 
 1 P. D. 154, 206; but see Gardiner 
 V. Courthope, 12 P. D. 14, in 
 which case, however, it was not 
 necessary for the decision that the 
 judge (Butt, J.) should hold that 
 the codicil could not be revoked 
 by the revocation of the Will since 
 he seems to have inferred as a fact 
 from the preservation of the codicil 
 that there was no intention to 
 revoke this, 
 
 {h) Barrow v. Barrow, 2 Cas. 
 temp. Lee, 335. Medlycott v. As- 
 sheton, 2 Add. 231. Tagart v. 
 Hooper, 1 Curt. 289. In the goods 
 of Hallivvell, 4 Notes of Cas. 400. 
 
 Clogstoun V. Walcott, 5 Notes of 
 Cas. 623. In the goods of Ellice, 
 33 L. J., P. M. & A. 27. Where 
 a Will and codicil had been in 
 existence, and the Will is after- 
 wards revoked, it must be shown 
 by the party applying for probate 
 of the codicil alone that it was 
 intended by the deceased that it 
 should operate separately from the 
 Will, otherwise it will be pre- 
 sumed that as the Will is de- 
 stroyed the codicil is also revoked : 
 In the goods of Greig, L. R. 1 P. tSc 
 D. 72. Gardiner v. Courthope, \1 
 P. D. 14. The question whether 
 the deceased, by revocation of a 
 Will, meant to revoke a codicil 
 depends upon intention to be 
 gathered from the circumstances 
 of the case : In the goods of 
 Bleckley, 8 P. D. 169.
 
 Cli, III. § I.] By Mutilation, Destruction, Alte ration, dc. 133 
 
 keeps one part himself, and deposits the other with some 
 
 other person ; and the testator mutilates or destroys the 
 
 part in his own custody, it is a revocation of both (/.). 
 
 The presumption of law in such case, liable of course to presumption 
 
 be rebutted by evidence, is, that the destruction or mutila- gtruction or 
 
 tion of the one duplicate was done cmimo revocandi as to "^"'-''''^tion of 
 
 •*• one revokes 
 
 both (m). the other: 
 
 And in Pcmhertoyi v. Pemhcrton (n), Lord Chancellor Same pre- 
 
 T-r T • 1 ' -\ ^ 1 1 -iiii sumption 
 
 Lrskme laid down that the same presumption holds, though where both 
 in a much weaker degree, where both the instruments are l^!y!!'?ri,^ 
 
 o ' are in testa- 
 
 in the testator's possession : And further, that in a third *°^'^ posses- 
 sion : 
 case, where the testator, having both duplicates in his 
 
 possession, alters one, and then destroys that which he 
 
 has altered, there also the same presumption holds, though 
 
 weaker still (o). 
 
 In another case under the old law, where a father, after an interiinea- 
 
 having made his Will, being displeased with his son, by an jicii'to tlie 
 
 interlineation of his Will, excluded him from all share in his f^™® ^'^®'r* ' 
 
 ' by cancelling 
 
 property but one shilling, and also by a codicil made for one, the other 
 
 is canceUed : 
 that purpose, declared his determination to the same effect ; 
 
 but afterwards being reconciled to his son, the testator 
 
 {I) Boughey v. Moreton, 2 Cas. custody, see Payne v. Trajipes, 1 
 
 temp. Lee, 532. S. C. 3 Hagg. 191. Robert. 583, 591. 
 Rickards v. Mumford, 2 Phillim. (n) 13 Ves. 310. And in that 
 
 23. Colvin v. Fraser, 2 Hagg. case it also appears that Lord 
 
 266. Ellenborough and Sir James 
 
 (?r) Swinburne seems to have Mansfield had each, in charging 
 
 been of opinion that it lay on the juries, stated the law to this 
 
 party relying on tlie revocation to effect. 
 
 prove the animus, otherwise the (o) It was urged by counsel in 
 
 cancellation of one duplicate would the course of the argument, that 
 
 not affect the other : See Pt. 7, s. 16, in this third case, as soon as one 
 
 pi. 4 : But the modern authorities, part has been altered, the two parts 
 
 cited in the preceding note, have cease to be duplicates, and the al- 
 
 now settled that the animus is to tered one then becomes a new AVill 
 
 be presumed, till the contrary is of the latest date, and revokes all 
 
 proved. As to the presumption, others. See further as to the revo- 
 
 ■when a testator destroys a dupli- cation of duplicates, Roberts v. 
 
 cate in the possession of his solid- Round, 3 Hagg. 548. Doe v. 
 
 tor, and preserves that in his own Strickland, 8 C. B. 724.
 
 134 
 
 Proof of luviti- 
 lation : 
 
 If a Will ill 
 testator's cus- 
 tody be found 
 mutilated, the 
 prcsumiition 
 is, that he 
 mutilated it 
 animo rcvo- 
 candi : 
 
 if it cannot he 
 found, the pre- 
 sumption is, 
 that he de- 
 stroyed it 
 animo mo- 
 candi : 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 cancelled the codicil, by drawing his pen across it, but the 
 interlineation was left standing in the Will ; it was held by 
 Sir W. Wynne, in the Ecclesiastical Court, and afterwards 
 by Sir W, Grant, M.R., that the cancellation of the codicil 
 had the effect of cancelling the interlineation {p). 
 
 If a testament was in the custody of the testator, and 
 upon his death it is found among his repositories mutilated 
 or defaced, the testator himself is to be presumed to have 
 done the act (</) ; and it has already appeared that the law 
 further presumes that he did it animo revocandi (r). So 
 where a testator has a Will in his own custody, and that 
 Will cannot be found after his death, the presumption is 
 that he destroyed it himself ; it cannot be presumed that the 
 destruction has taken place by any other person without his 
 knowledge or authority ; for that would be presuming a 
 crime (s). But this presumption may be rebutted by evidence 
 leading to the conclusion that the testator did not do that 
 which, in the absence of evidence to the contrary, it is pre- 
 sumed he had done (s-s). And this presumption holds with 
 
 {j}) Utterson v. Uttersoii, 3 Yes. 
 & Beam. 122. 
 
 (?) Swinb. Pt. 7, s. 16, pi. 5. 
 Davies v. Davies, 1 Cas. temp. Lee, 
 444. Lambell v. Lambell, 3 Hagg. 
 .568. In the goods of Lewis, 1 Sw. 
 & Tr. 31. 
 
 (r) Ante, p. 126. 3 Hagg. 568. 
 And the law is not different though 
 the testator appears to have 
 gummed the signature on again in 
 its original place : Bell v. Fother- 
 gill, L. R. 2 P. & D. 148. 
 
 (s) Eickards v. Mumford, 2 Phil. 
 23. Colvin v. Praser, 2 Hagg. 266. 
 Lillie V. Lillie, 3 Hagg. 184. 
 Wargent v. Hellings, 4 Hagg. 245. 
 Welch V. Phillips, 1 Moo. P. C. 
 299. Brown v. Brown, 8 E. & B. 
 882. In the goods of Mitcheson, 
 32 L. .J., P. M. & A. 202. 
 
 [ss) Thus this presumption may 
 be rebutted by showing that he 
 had no opportunity of so doing, or 
 that it has been lost or destroyed 
 without his privity or consent : 
 Lillie V. Lillie, 3 Hagg. 184, 185. 
 Wargent v. Hellings, 4 Hagg. 245, 
 249. Or by declarations by the 
 testator of goodwill towards the 
 parties benefited by the Will, or of 
 an adherence to the Will, and the 
 contents of the Will itself: Patten 
 V. Poulton, 1 Sw. & Tr. 55. Saunders 
 r. Saunders, 6 Not. of Cas. 518. 
 Johnson v. Lyford, L. R. 1 P. & 
 D. 546. Sugden v. Lord St. 
 Leonards, 1 P. D. 154. Or by a 
 consideration of the contents of the 
 Will itself: ihid. p. 176. For the 
 purjiose of rebutting the presump- 
 tion, declarations of the testator to
 
 Ch. III. § l] By Mutilation, do. 185 
 
 respect to duplicate Wills : Hence if a Will was executed in so where the 
 
 duplicate, and the testator has the custody of one part, and the custody of 
 
 it cannot be found after his death; the presumption of law ^""^ ^g, ^t^** 
 
 is, that he destroyed it animo revocandl ; and both parts ^^i'^^. 
 iire consequently to be considered revoked, unless such 
 presumption be rebutted {t). 
 
 There can be no doubt, that if a Will duly executed is ^n unrevoked 
 
 . . Will, which 
 
 ■destroyed in the lifetime of the testator without his authority, has been un- 
 it may be established, upon satisfactory proof being given of oj. destroyeV*^ 
 its having been so destroyed, and also of its contents (»)• "j^^j^'^j .****' 
 The law is the same, where a wife, having power to dispose 
 •of property by her Will, makes her Will and afterwards 
 -destroys it by the compulsion of her husband {x). So where 
 after the death of the testator, his Will and codicil were 
 wrongfully torn by his eldest son ; the Court, by means of 
 some pieces which were saved, and by oral evidence, having 
 Arrived at the substance of the instrument, pronounced for 
 them {y). So in Podmore v. Whatton {z), where there was 
 satisfactory evidence that the defendant (the brother of the 
 -deceased, who had taken out letters of administration) had 
 
 various members of his family down 1 P. & D. 371. The evidence to 
 
 to a few days before his death ex- rebut the presumption must be 
 
 pressive of his satisfaction at clear and satisfactory : Eckersley 
 
 having settled his affairs, and in- v. Piatt, L. R. 1 P. & D. 281. 
 
 timating that his Will was left See also In the goods of Shaw, 1 
 
 with his attorney, were held to Sw. & Tr. 62. Harris v. Knight, 
 
 liave been properly admitted : 15 P. D. 170. 
 
 Whiteley v. King, 17 C. B., N. S., (0 Colvin v. Eraser, 2 Hagg. 
 
 756. Sugden v. Lord St. Leonards, 266. 
 
 1 P. D. 154. This presumption {u) Trevelyan v. Trevelyan, 1 
 
 ■does not apply to a case where the Phillim. 149. Sugden v. Lord St. 
 
 testator became insane after the Leonards, 1 P. D. 154. Sly v. 
 
 -execution and continued insane Sly, P. D. 91. See jpost, Pt. i. 
 
 until his death : Sprigge v. Sprigge, Bk. iv. Ch. ii. § vii. 
 
 L. R. 1 P. & D. 608. See ante, (x) Williams v. Baker, Prerog. 
 
 p. 125. Nor does it arise unless the June 1, 18:j9. 
 
 Court is satisfied by unimpeachable {y) Foster v. Foster, 1 Add. 462. 
 
 evidence that the Will was not in In the goods of Leigh [1892], P. 82. 
 
 existence at the time of the testa- (2) 3 Sw. & Tr. 449. 
 
 tor's death : Finch v. Finch, L. R.
 
 13G 
 
 Revocation of Wills. [Pt. i. Bk. IL 
 
 So a Will 
 mutikited by 
 testator whilst 
 noil compos, 
 luay be esta- 
 blished. 
 
 The onus of 
 showing a can- 
 cellation to 1)6 
 the act of the 
 testator lies on 
 those who op- 
 pose the Will. 
 
 possessed himself of the Will after the death of the testator, 
 and had suppressed or destroyed it ; Sir J. P. Wilde granted 
 letters of administration with the draft of the Will annexed 
 to the residuary legatee. It should be observed that the same 
 judge, in WJiarram v. Wharrmn (a), appeared to doubt (but 
 it is submitted, without sufficient reason) (an), whether the 
 Courts have been justified in allovidng a Will to be proved by 
 parol evidence only, where it has been shown to be lost or 
 destroyed, and to doubt the soundness of the doctrine laid 
 down by the Court of Queen's Bench in Brown v. Broivn (h)^ 
 that parol evidence of the contents of a lost instrument may 
 be received as much when it is a Will as any other. This 
 question will be considered more fully hereafter {post, Pt. i. 
 Bk. IV. Chap. ii. § vii.), with the subject of the probate of 
 lost Wills generally. So if a Will be w^holly or partially 
 mutilated or destroyed by the testator whilst of unsound 
 mind, it will be pronounced for as it existed in its integral 
 state, that being ascertainable (c) . 
 
 It must be borne in mind that the onus of making out 
 that the cancellation of a Will Avas the act of the testator 
 himself, lies upon those who oppose the Will. Accordingly 
 where a holograph instrument, purporting to be a codicil,, 
 was sent anonymously by the post to one of the legatees 
 named therein, it was admitted to probate, though partially 
 burnt and torn across, the handwriting being satisfactorily 
 proved and the confirmatory and adminicular proof being- 
 sufficient to satisfy the Court that it was a genuine instru- 
 ment (d) . 
 
 (ft) Ibid. 301. 
 
 (««) This submission of Sir 
 Edward Vaughan Williams was 
 amply justified by the decision in 
 Sugden v. Lord St. Leonards, 1 
 P. D. 154. 
 
 (h) 8 E. & B. 876. Approved in 
 Sugden v. Lord St. Leonards, 1 P. 
 
 D, 154. Co7if. Woodward v, 
 Gouldstone, 11 App. Cas. 469. 
 
 (c) Scruby v. Fordham, 1 Add. 
 74. In the goods of Brand, 3 
 Hagg. 754. In the goods of Shaw,. 
 1 Curt. 905. 
 
 (d) Hitchins r. Wood, 2 Moore,, 
 P. C. C. 355—447.
 
 Ch. Ill, § II.] By a Subsequent Will. 137 
 
 SECTION II. 
 
 Revocation by a subsequent Testamentary Disjwsition. 
 
 " Concerning the making of a latter testament," says 
 Swinburne (e), " so large and ample is the liberty of making 
 testaments, that a man may, as oft as he will, make a new 
 testament even until his last breath ; neither is there any 
 cautel under the sun to prevent this liberty : But no man 
 can die with two testaments, and therefore the last and 
 newest is of force ; so that if there were a thousand testa- 
 ments, the last of all is the best of all, and maketh void the 
 former." 
 
 It is indeed a necessary consequence of the ambulatory Last Will 
 nature of a Will, that the last testamentary disposition of the exclusion 
 property by a testator shall be operative, to the exclusion of trary or ^ncon- 
 any previous contrary or inconsistent one. And this even sistent Will, 
 though the earlier will is contrary to or inconsistent with a re"o^ed by 
 later non-appearing will, the existence and contents of which subsequent 
 
 , . . non-appearmg 
 
 are proved by parol evidence. Accordingly in Helyar v. Will. 
 
 Helyar (i). Sir G. Lee held that the execution of a second 
 
 Will, with a different executor and residuary legatee, was by 
 
 law a revocation of the first, though the second did not 
 
 then appear {k). So in Brown v. Broivn (/), a testator, 
 
 after the Wills Act, executed a Will, and afterwards a 
 
 second one, which he took away with him : After his death 
 
 the earlier Will was found, but the second could not 
 
 be found : Secondary evidence was given which showed 
 
 that the second Will was inconsistent with the first and 
 
 revoked it : and it was held that the second Will must 
 
 be presumed to have been destroyed by the testator 
 
 animo revocandi (m), and that consequently, the first Will 
 
 (e) Pt. 7, s. 14, pi. 1. revived by the revocation of the 
 
 (i) 1 Cas. temp. Lee, 472. second. 
 
 (k) See post, p. 152, et seq., as to (l) 8 E. & B. 876. 
 
 ■whether the first Will would be (m) See ante, p. 134.
 
 138 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Evidence 
 must be most 
 clear and 
 satisfactory. 
 
 A prior testa- 
 mentarj- paper 
 not revoked by 
 a subsequent 
 one, unless 
 they be incon- 
 sistent : 
 
 having been revoked by it, the deceased died intestate. 
 But where the revocation of an existing Will is sought 
 to be established by the proof of the execution of a sub- 
 sequent Will, not appearing, the e\adence ought to be 
 most clear and satisfactory, and if parol evidence alone 
 be relied on, such evidence ought to be stringent and 
 conclusive {n). 
 
 But the mere fact of making a subsequent testamentary 
 paper does not work a total revocation of a prior one, unless 
 the latter expressly or in effect revoke the former, or the 
 two be incapable of standing together : for though it be a 
 maxim, as Swinburne says above, that "no man can die with 
 two testaments," yet any number of instruments, whatever 
 be their relative date, or in whatever form they may be 
 (so as they be all clearly testamentary), may be admitted to 
 probate as together containing the last Will of the de- 
 ceased (o). And if a subsequent testamentary- paper, whether 
 in form a Will or a Codicil, be partially inconsistent with one 
 of an earlier date, then such latter instrument will revoke the 
 former as to those parts only where they are inconsistent {p). 
 
 (ii) Cutto V. Gilbert, 9 Moo. P. 
 
 C. 131, 140, 141. See alsoHellier 
 V. Hellier, 9 P. D. 237. 
 
 (o) See a strong instance of this 
 in Mastermau r. Maberly, 2 Hagg. 
 235 ; Sandford v. Yaughan, 1 Phil. 
 39, 128; Harley v. Bagshaw, 2 
 Phil. 48. In the goods of Graham, 
 3 Sw. & Tr. 69. Geaves v. Price, 
 ibid. 71. In the goods of Budd, 
 ibid. 196. Birks r. Birks, 4 Sw. 
 & Tr. 23, in which last case, by a 
 blunder, clauses had been omitted 
 in a .subsequent copy made of a 
 Will, and the copy and the original 
 Will, having both been duly exe- 
 cuted, were admitted to probate as 
 together containing the Will. In 
 the goods of Fenwick, L. R. 1 P. & 
 
 D. 319. See also In the goods of 
 
 Nickalls, 4 Sw. & Tr. 40. In the 
 goods of Harris, L. R. 2 P. & D. 
 83. In the goods of Donaldson, L. 
 R. 3 P. & D. 45, in which cases one 
 of the papers related to property 
 abroad. 
 
 (p) In the goods of Petchell, L. 
 R. 3 P. »& D. 153, 156. Lemage r. 
 Goodban, L. R. 1 P. & D. 57. 
 Richards v. Queen's Proctor, 18 
 Jur. 540. Stoddart v. Grant, 1 
 Macq. H. L. 163. See also Hellier 
 V. Hellier, 9 P. D. 237, in which 
 case the second and partially in- 
 consistent Will which contained no 
 revocatory clause was not forth- 
 coming nor admitted to probate. 
 In Robinson v. Clarke, 2 P. D. 269, 
 it was held, in a suit where the 
 parties have come to an arrange-
 
 Ch. III. § II.] By a Subsequent Will. 
 
 139 
 
 Where, however, a testator by a paper purporting to be or unless the 
 ^'his last Will," and in which executors were appointed, substantive 
 disposed of a jpart only of his personal estate, and did not ^^^] ^^'^ 
 expressly revoke a former testamentary paper, it was held 
 by Sir Herbert Jenner Fust, in Plenty v. West (q), that the 
 earlier paper was nevertheless revoked by the later, not- 
 Avithstanding the two were not wholly inconsistent ; there 
 being nothing to show that he intended them to be taken 
 conjointly as his Will : And it was said by the judge that 
 he knew of no case where the testator called a Will ** his 
 last Will " in which the Court has held former papers to be 
 included. 
 
 But, as was pointed out by the Judicial Committee of the 
 Privy Council in Ciitto v. Gilbert (qq), the fact that the 
 testator called the second paper his " last will " was only one 
 circumstance with others on which Sir H. Jenner Fust founded 
 his decision, and not the sole ground of it, as Sir John Dodson 
 in his judgment in Ciitto v. Gilbert, in the Court below, 
 seems to have thought (r). 
 
 ment under the terms of which the 
 Court is applied to to grant pro- 
 bate of two testamentary instru- 
 ments, that the Court will do so, 
 provided the documents are not 
 entirely inconsistent with one 
 another. 
 
 (q) 1 Robert. 264. S. C. 4 Notes 
 of Cas. 103. S. C. Coram M. R. 16 
 Beav. 173. But instances may be 
 found where a paper calling itself 
 a last Will and Testament has been 
 admitted to probate as an addition 
 to a former Will : In the goods of 
 Luffman, 5 Notes of Cas. 183. In 
 the goods of Langhorn, 5 Notes of 
 Cas. 512. And see further In tlie 
 goods of Holt, 6 Notes of Cas. 93, 
 .96 ; 2 East, 494, 595, by Lord 
 EUenborough and Lawrence, J. 
 And on the whole the decision of 
 the Privv Council in Cutto v. Gil- 
 
 bert, 9 Moo. P. C. 131, post, p. 
 142, and of the Lords Justices in 
 Freeman v. Freeman, 5 D. G., M. 
 & G. 104, post, p. 142, together with 
 the cases cited above, appear to 
 render the authority of Plenty v. 
 West on this point at the least 
 doubtful. Indeed, in Lemage r. 
 Goodban, L. R. 1 P. & D. 57, Sir 
 J. P. Wilde regarded Plenty r. 
 West, so far as it supports the 
 doctrine that the use of the words 
 " last Will " in a testamentary 
 paper necessarily imports a revoca- 
 tion of all previous instruments, as 
 overruled by Cutto v. Gilbert and 
 Stoddart v. Grant {uhi infra). See 
 In the goods of Petchell, L. R. 3 
 P. & D. 153. 
 
 (qq) 9 Moo. P. C. 131. 
 
 (?•) See Dempsey v. Lawson, 2 
 P. D. 98.
 
 140 
 
 Revocation of Wills. [Pt. i. Bk. ir. 
 
 effect of ap- 
 pointment of 
 executors. 
 
 A paper dis- 
 posing of all 
 the estate, 
 without 
 making an 
 executor, 
 
 wholly revokes 
 a prior Will, 
 though 
 appointing 
 executors. 
 
 In Plenty y. West the judge further remarked that the 
 appointment of executors has always heen considered to effect 
 a complete disposition. But this, as it has been since held 
 by Sir John Dodson, is by no means conclusive of the 
 testator's intention to constitute a substantive Will(s). 
 Conversely, "svhcre by a testamentary paper, which was 
 executed as a "Will and not as a codicil, all the testator's 
 property is given to a particular person, without the appoint- 
 ment of any executor, such paper will operate as a total 
 revocation of a prior Will, even though an executor may 
 have been appointed by such prior Will. For the later 
 paper being, in fact, a Will disposing of all the property, 
 although there is no express revocation of the former Will 
 or of the appointment of an executor, is ex necessitate, a 
 revocation of the former (0 • 
 
 (s) Eicliards v. Queen's Proctor, 
 18 Jur. .540. Stoddart v. Grant. 
 1 Mac(i. H. & L. 163, 173. And 
 where a second Will appoints a 
 fresh, executor, if the AVills are 
 not inconsistent, probate may he 
 granted to both the executors : In 
 the goods of Leese, 2 Sw. & Tr. 
 442. In the goods of Graham, 3 
 Sw. & Tr. 69. Geaves r. Price, 3 
 Sw. & Tr. 71. In the goods of 
 Morgan, L. E. 1 P. & D. 323. A 
 testator executed a Will purport- 
 ing to dispose of, and in fact only 
 disposing of property in Tasmania 
 and appointed thereby execu- 
 tors resident in Tasmania. He 
 subsequently executed another 
 Will, disposing of his property in 
 England, and thereby ratified and 
 confirmed his Will relating to the 
 property in Tasmania. In this 
 last Will he appointed three exe- 
 cutors distinct from those named 
 in the earlier Will, and the Court 
 ordered probate to issue of both 
 papers as together containing the 
 
 Will of the testator. In the goods 
 of Harris, L. R. 2 P. & D. 83. Where 
 a second Will appoints no fresh 
 executor probate of both Wills 
 may be granted to the executor 
 named in the first Will. In the 
 goods of Griffith, L. K 2 P. & D. 
 457. 
 
 {t) Henfrey v. Henfrey, 2 Curt. 
 468 : affirmed in the Privy Coiincil, 
 4 Moore, P. C. C. 29. Where a 
 testator made two Wills, the first 
 in England according to English 
 Luv, by which he disposed of all 
 his realty and personalty, and ap- 
 pointed an executor ; the second 
 in Italy according to Italian law, 
 by which he appointed his wife 
 "universal heiress;" and this 
 AVill contained a revocatory clause 
 in the following terms : " I erase, 
 revoke, and annul every other act 
 or last Will which I may have 
 made." The Court held that the 
 Italian Will revoked the disposi- 
 tion of personalty and the appoint- 
 ment of executor contained in the
 
 Ch, III. § II.] By a Subsequent Will. 
 
 141 
 
 It may here be observed, that a Will of a date prior to a 
 Will with a revocatory clause, may be admitted to probate, 
 if there is any part of it which the Court is satisfied that 
 it was not the intention of the testator to revoke (ii). 
 
 Upon the same principles it has been decided, in the 
 Courts of Common Law, that a subsequent Will is no revo- 
 cation, unless the contents of it are known : and it is not to 
 be presumed, from the mere circumstance of another Will 
 having been made, that it revoked the former. As where it 
 was found by a special verdict that the testator after the 
 making of a former Will made another Will in writing, but 
 what the contents and purport were the jury did not know : 
 the second Will was holden not to be a revocation of the 
 first : for the other Will might concern other lands, or no 
 lands at all, or be a confirmation of the former (x). And 
 though a Will be expressly found to be difi"erent from a 
 former, yet if it be declared that it is not known in what that 
 difiference consisted, it will be no revocation in law thereof. 
 Thus where it was found by a special verdict (y) that the 
 
 Effect of 
 express revo- 
 catory clause 
 in subsequent 
 Will. 
 
 Mere fact of a 
 later Will 
 existing will 
 not operate a 
 revocation, at 
 least in the 
 Common Law 
 Courts : 
 
 though it be 
 expressly foinul 
 to be different 
 from a former 
 Will, if the 
 particulars be 
 unknown : 
 
 English. Will, and that the Italian 
 "Will alone was entitled to probate. 
 Cottrellv. Cottrell, L. E. 2 P. & D. 
 397. 
 
 (u) A codicil which absolutely 
 revokes and makes void all bequests 
 and dispositions in a Will and 
 nominates executors, but does not 
 in direct terms revoke the appoint- 
 ment of executors and guardians 
 in the Will does not revoke the 
 Will ; for the legal operation of a 
 codicil is to confirm such parts of 
 the wiU, to which it refers, as it 
 does not revoke. In the goods of 
 Howard, L. R. 1 P. & D. 636. See 
 to the same effect, Denny v. Barton, 
 2 Phil. 575, and Gladstone v. Tem- 
 pest, 2 Curt. 650 decided before the 
 Wills Act. 
 
 (x) Ilitchins v. Bassett, 3 Mod. 
 
 203, affirmed in the House of 
 Lords, Show. Cas. Pari. 146. 
 " Hence it seems to follow," says 
 Mr. Serj. WiUiams, in his note to 
 Duppa V. Mayo, 1 Saund. 279 h, 
 " that what Lord Hale is said to 
 have laid down in a former case 
 upon the same Will (Seymour v. 
 Nosworthy, Hard. 376), namely, 
 that ' a second substantive inde- 
 pendent Will, though it does not 
 by express words import a revoca- 
 tion of a former Will, or pass any 
 land, amounts in law to a revoca- 
 tion,' is either not correctly re- 
 ported, or if it be, is overruled by 
 Hitchins v. Bassett." 
 
 (y) Goodright v. Harwood, 3 
 Wils. 497, affirmed in the House of 
 Lords, 7 Bro. B. C. 344. 1 Saund. 
 279/1.
 
 142 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 a later Will, of 
 ■w-bich nothing 
 is known but 
 that it was 
 headed "last 
 Will," is no 
 revocation. 
 
 testator did make and duly publish another "Will in writing 
 in the presence of three subscribing witnesses who duly 
 attested the same ; that the disposition made by the testator 
 by the second Will was different from the disposition in the 
 former Will, but in what particular was unknown to the jury ; 
 but they did not find that the testator cancelled the second 
 Will, or that the devisee under the first Will destroyed the 
 same, but what was become of the second Will the jury could 
 not tell : it was adjudged in the King's Bench, on error, re- 
 versing the judgment of C. B. to the contrary, that the second 
 Will was no revocation of the first ; and the judgment of the 
 Court of King's Bench was affirmed in the House of Lords {z). 
 In ditto V. Gilbert {a), Sir John Dodson, in the Eccle- 
 siastical Court declined to recognize these doctrines of the 
 Common Law : In that case a testator, having duly executed 
 his Will, subsequently executed another testamentary paper, 
 which was not found at his death, and the contents of which 
 were unknown, save that it was headed " last Will ; " and that 
 learned Judge, held that the former Will was revoked by the 
 execution of the latter, being of opinion that the execution of 
 a Will of personalty amounts to a revocation of a former Will, 
 whether the contents of the later Will are known or not, pro- 
 vided there be, in substance and efi'ect, revocatory words. But 
 this decision was reversed in the Privy Council; their lord- 
 ships being of opinion that the words, " this is my last Will," 
 did not import that the paper contained a difi"erent disposition 
 of the property ; and that the mere fact of so calling it did 
 not render it a revocatory instrument (?^). Again, in Free- 
 man V. Freeman (c). Lord Justice Knight Bruce said, that 
 whatever might be the view of the Ecclesiastical Courts, he 
 did not think a temporal Court bound to say that when a 
 man in an instrument, containing temporary dispositions 
 by him describes it as his last Will and Testament, and other- 
 
 (z) See also Dickinson v. Sti- 
 dolph, 11 C. B., N. S. 357. 
 (a) 18 Jur. 560. 
 
 (6) 9 Moo. P. C. 131. 
 
 (c) 5 De G., M. & G. 704.
 
 Ch. III. § II.] By a Subsequent Will. 143 
 
 wise calls it his Will, be is to be taken prima facie as 
 meaning wboUy to annul any former testamentary instrument 
 made by him extending to matters to which the latter does 
 not extend. And accordingly the Lord Justices held that the 
 expression, "this is my last Will and Testament," does not 
 operate as a revocation of a former Will, without words to 
 that effect, at all events as regards real estate. 
 
 In the case of Dempseii v. Laivson id), Sir James Hannen, General rule 
 
 ^ -^ ^ ' . (leducible from 
 
 in reviewing the cases of Plenty v. West, Ciitto v. Gilbert, cases. 
 and the other cases since decided, in his judgment said, "it 
 becomes necessary to consider minutely the nature and extent 
 of the inconsistency of a later testamentary instrument which 
 will have the effect of revoking an earlier W^ill. In this in- 
 vestigation the Court is necessarily called upon to put a 
 construction upon the language of the instrument in question. 
 The intention of the testator conveyed in that language has 
 to be ascertained by reference to the facts in connection with 
 which it was used, but in seeking the true meaning of the 
 testator the substance and not the form of the instrument 
 must be regarded. If it can be collected from the words of 
 the testator in the later instrument that it was his intention 
 to dispose of his property in a different manner to that in 
 which he disposed of it by the earlier document, the earlier 
 document will be revoked, and this, although in some particu- 
 lars the later Will does not completely cover the whole subject 
 matter of the earlier. This is what was decided in Plenty v. 
 West. There the Court held upon all the facts before it that 
 it was the intention of the testator that the later paper should 
 stand alone, although that disposed of a part only of his per- 
 sonal estate, and therefore that in effect, though not in terms, 
 it revoked the earlier Will. . . . The case of ditto v. Gil- 
 bert (e), merely decides that the bare fact of a testator having 
 executed an instrument as his last Will and Testament the 
 contents of which are unknown, does not operate as a revoca- 
 tion of a previous Will, and this seems very obvious, for the 
 
 (d) 2 P. D. 98. (e) 9 Moo. P. C. 131.
 
 144 Revocation of Wills. [Pt. i. Bk. ii. 
 
 missiDg instrument may have been confirmatory of the first. 
 It certainly does not appear from the judgment in that case 
 that there was any intention to overrule the decision in Plenty 
 V. West. . . . The Judicial Committee appear to have ap- 
 proved of the decision in Plenty v. West, upon the ground 
 that the fact that the whole of the personal estate was not 
 disposed of by the second Will was not by itself a sufficient 
 reason for uniting the earlier with the later Will and admitting 
 both to probate, the Wills being in other respects essentially 
 different. And Lord Penzance, in Lemage v. Goodhan (/), does 
 not say that Plenty v. West is overruled, but with his accustomed 
 accuracy only says, * the case of Plenty v. West, so far as it 
 supjwrts the doctrine that the use of the words " last Will" in 
 a testamentary pajjer necessarily imports a revocation of all 
 previous instruments is, I think, overruled by Cutto v. Gilbert.' 
 Lord Penzance further says, ' the intention of the testator in 
 the matter is the sole guide and control.' But the intention 
 to be sought and discovered relates to the disposition of the 
 testator's property and not to the form of his Will. What 
 dispositions did he intend ? not w^hich or what number of 
 papers did he desire or expect to be admitted to probate ? is 
 the true question. I followed that decision in the case of In 
 the goods of Petchell " (g). 
 
 Where upon the face of a testamentary document and the 
 facts known to the testator at the time of its execution, it is 
 doubtful whether the testator intended altogether to revoke a 
 former Will, the Court will admit parol evidence to ascertain 
 the intention (Ii). 
 Two incon- ^^ ^^'^ inconsistent Wills be found of the same date, or 
 
 sistent Wills -^ithout any date, and no evidence can be adduced estab- 
 
 of the same 
 
 date, or with- lishiug the posteriority of the execution of either, both are 
 
 ^' ^ ^' necessarily void, and the deceased must be considered intes- 
 tate : But in every case the Courts will struggle to reconcile 
 them, if possible, and collect some consistent disposition from 
 
 (/) L. R. 1 P. & D. 57. (/i) Jenner r. Ffinch, 5 P. D. 
 
 (g) L. R. 3 P. & D. 153. 106.
 
 Ch. III. § II.] By a Sahsequent Will. 145 
 
 the whole (/). But if there is an express contradiction Clause in a 
 between two clauses in a Will, it is settled by law that the by subsequent 
 second part of the Will must take effect over the first part (k): inconsistent 
 but it was held by Lord Romilly, M. R., that this rule does 
 not apply where a second bequest is made by implica- 
 tion {!}, but it may be doubted whether this decision was 
 well founded (m). 
 
 It may sometimes become a question, in a case where Revocation of a 
 there are several codicils, or other testamentary papers, of H^^^ by a 
 
 different dates, whether the dispositions of the latter are to ^^'^^t^^f^^ °"® 
 ' ^ in a later 
 
 be considered as additional and cumulative to those of the instrument, 
 prior, or as a substitute for, and consequently revocatory of 
 them. And if a testator, by a codicil to his Will, should 
 direct a certain mode of making a provision for his wife, 
 and by another subsequent codicil should also direct a pro- 
 vision for her in another mode ; on the face of these instru- 
 ments it might be doubtful, whether by the latter codicil he 
 intended to increase the provision made by the former, or 
 to revoke it by substituting that contained in the latter. 
 In such cases, the Court will admit parol evidence, in order Parol evidence 
 to investigate the animus with which the act was done ; and investigate 
 if upon such evidence it should appear, that the latter animus oi a.ci. 
 codicil, although containing no revocatory words, was in- 
 tended by the testator as a substitute for the former, it 
 shall be thereby revoked, though it remain uncancelled {n). 
 However, the general principle is, that bequests are, prima 
 facie, to be taken cumulatively, when they are on separate 
 papers, unless they are revocatory of each other (o). And 
 
 (i) Swinb. Pt. 7, a. 11, pi. 1. lim. 416. Greenough v. Martin, 
 
 Godolph. Pt. 1, c. 19, 8. 3. Phipps 2 Add. 239. Jenneru. Ffincli,5 P. 
 
 V. Earl of Anglesea, 7 Bro. P. C. D. 106. See post, Pt. iii. Bk. iii. 
 
 443. Toml. Ed. Ch. ii. § vii. And as to the 
 
 (i) See post, Pt. III. Bk. iii. admissibility of parol evidence, 
 
 Ch. II. § 1, 4. see^josi, Pt. i. Bk. iv. Ch. ii. § v. 
 
 {I) Kerr v. Clinton, L. R. 8 Eq. (o) Bartholomew v. Henley, 3 
 
 462. Phillim. 316, by Sir John Nicholl. 
 
 (m) See^osf, 155. See infra, Pt. iii. Bk. iii. Ch. ii. § 
 
 (n) Methuen v. Methuen, 2 Phil- vii. as to cumulative legacies. 
 
 W\E. — VOL. I. L
 
 1-16 Revocation of Wills. [Pt. i. Bk. ii. 
 
 in a case ( p) in the Prerogative Court, it was said by Sir 
 Herbert Jenner Fust, that, whether the case is to be governed 
 by the old law, or by the Wills Act, parol evidence is not to 
 be admitted, unless there is such doubt and ambiguity on the 
 face of the jiapers as to require the aid of extrinsic evidence 
 to explain them {q). 
 
 A second Will If ^ ^^n executes a Will, erroneously supposing it to be a 
 executed under ^^ j^jg fQ^jj^gr Will, it will be no revocation as to the 
 
 an erroneous •■• '' 
 
 supposition parts Omitted in the supposed copy, and both instruments 
 
 that it was a , 
 
 copy of the Will be admitted to probate (r). 
 
 former Will is 
 no revocation. 
 
 Revocation of ^^ ^^ ^^-"^ revocation of a finished Will by a subsequent 
 finished Will by unfinished one (if made before Jan. 1, 1838), see the former 
 
 subsequent un- 
 
 finished Will Editions of this W^ork, Pt. I. Bk. II. Ch. 3, § 2. 
 
 under the Old 
 Law. 
 
 A subsequent ^^ ^^^ already appeared that a cancellation of a Will, 
 
 Will or codicil, under an erroneous assumption of facts, may not operate 
 
 made under -^ ./ j. 
 
 the impulse of as a revocation (s). Upon the same principle, if a man, by 
 notion of facts ^ Subsequent Will or codicil, make a disposition different 
 will not revoke fj-Q^^ a former one, under a false impression, the impulse of 
 
 a loimer one. i ' -i .' 
 
 ivliicli is the foundation of his wish to change his former 
 intent, such an act will be considered only as affecting a 
 contingent presumptive revocation, depending on the existence 
 or non-existence of that fact. As if one having previously 
 devised to A., afterwards by another Will, without destroying 
 the first, or by codicil, devise to B., stating her to be his 
 wife, so that it may be understood that he intended her to 
 be benefited in that character only, and it turn out that she 
 was married before, and had a husband living, neither of 
 which facts were in the devisor's knowledge {t), such devise 
 
 ip) Thome v. Rooke, 2 Curt. M. & A. 90. 
 
 799. (s) Ante,^. 131. 
 
 ('/) As to what is to be regarded [t) An appointment by a "Will 
 
 as such an ambiguity, see fost, to a husband, under circumstances 
 
 Pt. I. Bk. IV. Ch. II. § V. of this nature, occurred in Kennell 
 
 (r) Birks v. Birks, 34 L. J., P. v. Abbott, 4 Ves. 802.
 
 Ch. III. § II.] By a Subsequent Will li7 
 
 or codicil will not operate as a revocation of the former Will, 
 because it depends on a contingency which fails (?'). It has 
 been said, that care must be taken to distinguish between 
 cases, where the testator acts under a false impression, 
 originating from a deceit practised upon him, and those 
 where, although the reason which he gives for his subsequent 
 devise is false, yet no deceit is practised on him (x). But 
 there seem to be no grounds for any such distinction. 
 'Thus, where a testator gave legacies to the grandchildren 
 of his sister, and afterwards, by a codicil, revoked the legacies, 
 giving as a reason, that the legatees were dead ; upon its 
 being proved that the fact of their death was not true, Lord 
 Loughborough held, that the legacies were not revoked, on 
 the ground that the cause of the revocation was false ; and 
 said, whether it was by misinformation or mistake w^as per- 
 fectly indifferent (y). So in a case in the Prerogative Court (^), 
 the deceased supposing his Will, appointing his wife sole 
 executrix and universal legatee for life, to be lost, made, 
 in Peru, a nuncupative Will (not in conformity wdth the 
 Statute of Frauds) with a general revocation clause, and 
 appointing two executors, and his wife universal legatee, 
 absolutely : The. executors renounced, and she took probate 
 of that Will in Peru : The former Will being found (of which 
 
 (u) So where a testator, by Will death of Charlotte claimed the 
 
 dated in 1849, bequeathed the in- fund. It was held by Page Wood, 
 
 terest of a fund to Charlotte Lee, V.-C, that the circumstances were 
 
 " but in case the said Charlotte Lee sufficient to show that the testator, 
 
 should marry ordie unmarried, "the in 1849, believed his daughter's 
 
 fund was to go over. Charlotte husband to be dead, and that he 
 
 Lee was the maiden name of the intended that no husband of hers 
 
 testator's daughter, who had been should have the benefit of the fund; 
 
 married in 1828, and it was found and, accordingly, that on her 
 
 that the testator knew of her death it passed by the gift over : 
 
 marriage, but that it could not be Crosthwaite v. Dean, L. R. 5 Eq. 
 
 shown under what circumstances 245. 
 
 he knew it. It also appeared that (x) 1 Powell on Dev. 525. 
 
 Charlotte's husband had, in 1849, (y) Campbell v. French, 3 Ves. 
 
 not been heard of for many years. 322. 
 
 After the testator's death the (z) In the goods of Moresbv, 1 
 
 husband appeared, and on the Hagg. 378. 
 
 L 2
 
 148 Revocation of Wills. [Pt. i. Bk. ii, 
 
 fact he was ignorant at the time of his death), probate thereof, 
 at the wife's prayer, was granted to her: and Sir JohnNicholl 
 observed that it was unnecessary to decide the question (about 
 which there might be some doubt), whether the Statute of 
 Frauds would apply to the nuncupative Will made in Peru ; 
 because it appeared that the deceased did not intend to revoke 
 the former Will; but, supposing it to be lost and being- 
 unwilling to die intestate, he made the nuncupative WilL 
 Accordingly, in Doe v. Evans (a), where a testatrix by her 
 Will devised all her estate to L. E. for life, and to his sons 
 and daughters successively, in strict tail, and L. E. and his 
 only son died in the lifetime of the testatrix, but he left 
 a daughter E. E., of whose birth she knew nothing, and she 
 thereupon made a codicil, in which she recited her former 
 Will, and that L. E. had died without leaving any issue, 
 and then devised over: It was held, that, as this codicil 
 was made in ignorance of the existence of E. E., it was only 
 a conditional revocation {h). 
 Distinction But there does seem to be a distinction between cases, 
 
 between cases ^^jjgj.g ^]^q testator refers to a fact as having actually 
 
 where testator 
 
 refers to a fact happened, and where he merely expresses his doubt, sup- 
 actually'^ position or advice of the fact. Thus in the case of the 
 Srhe' '"'^ Attorney-General v. Lloyd {c), the testator, by his Will, 
 
 (a) 10 A. & E. 288. Westbury, to be an effectual gift 
 (6) Some time after making the to N., who was, in fact, neither 
 codicil, the testatrix was made heir nor next of kin of the testa- 
 acquainted with the existence of tor. The Will concluded, "N., 
 E. E., but made no further testa- my second cousin, is my next of 
 mentary disposition : It was held, kin and heir-at-law, as my brother 
 that this did not set up the codi- John is dead and has left no 
 cil : for, having been once in opera- issue. "^ .The testator had another 
 tive, it could only be republished brother, named William, and his 
 according to the Statute of Frauds. Lordship held, that these words 
 In Parker v. Nickson, 1 De G., J. must not be taken as proving that 
 & S. 117, the words in a Will, the testator was under the errone- 
 '•I acknowledge N., my second ous belief that his brother William 
 cousin, to be my next of kin and was dead without issue. 
 heir-at-law to all my real and (c) 3 Atk. 515, disapproved of 
 personal property, situate in the by Malins, V.-C. in Thomas u. 
 parish of M.," were held by Lord Howell, L. E. 18 Eq. 198, 211.
 
 €li. III. § II.] Btj a Subsequent Will. 149 
 
 dated Stli February, 1734, gave particular lands and his merely ex- 
 personal estate, to be laid out in lands, to charitable uses, supposition, or 
 He afterwards made a codicil, dated 12th July, 1736, in fal7t|'' °^ *''*" 
 which, after reciting his doubt whether such devise would 
 be good, he gave the lands to M. B. and his heirs, if by the 
 Mortmain Act they could not pass according to his Will. 
 'On 17th March, 1737, he made another codicil, the terms of 
 which were, that the testator, " being advised " that the 
 devise of his lands was void, and it being his intention that 
 the charity should be continued, and being advised that his 
 personal estate could be given, he did, by that codicil, give 
 his personal estate to the charitable uses, and his real estate 
 to M. B. The former part of this advice seems to have 
 been ill-founded ; for in Ashburnham v. Bradshaw (d), it had 
 been certified by the opinion of all the judges, to Lord 
 Hardwicke, that a devise of lands under a Will to charitable 
 uses, made before the Statute of Mortmain, (which was 
 enacted in 1736,) notwithstanding the testator survived the 
 -enactment, passed the land. But Lord Hardwicke observed, 
 that the testator had put the devise on the fact of his being 
 ■advised ; and that he was so advised was a fact in his own 
 knowledge ; and he had grounded his devise upon this 
 advice, and not upon the reality of the law, though that 
 should come out in the event one way or another; upon 
 that he made his determination, which he might do to quiet 
 a doubtful question, — " I will not have this litigated after 
 my death, but I will settle it myself, upon some certain 
 foundation " (e). His Lordship afterwards ordered a case 
 to be stated for the opinion of the judges of the King's 
 Bench, and they certified that the real estate was well 
 devised to M. B., under the second codicil. So in the 
 
 {d) 2 Atk. 36. the testator mipiht have been ad- 
 
 (e) His Lordship afterwards vised that his personal estate had 
 
 «aid, his principal doubt in this so much increased since making 
 
 case was, whether the new dispo- the Will as to be sufficient to sup- 
 
 sition by the second codicil was port the charity. 
 
 put singly upon the point of law ;
 
 150 Revocation of Wills. [Pt. i. Bk. ir. 
 
 Attorney- General v. Ward (/), the testatrix, having, by her 
 Will, given 300/., to be divided among such of the children 
 of E. D. as should be living, bj-a codicil gave to her brother's 
 son "the 300/. designed for E. D.'s children, as I know not 
 whether any of them are alive, and if they are well provided 
 for:" Lord Alvanley held that this operated as a complete 
 revocation of the legacy, though the children of E. D. were 
 alive and claimed the legacy : The learned judge observed,, 
 that it had been argued, and with some ground, that if it had 
 rested upon her not knowing whether they were living, there 
 would be good reason to contend, that it fell within the case 
 of " Pater credens Jilium siium esse mortuum, alterum instituit 
 Itceredem : fil'io domnm redeunte, hnjiis institutionis vis est 
 nulla ; " {(j) but she went further ; that she doubted, if they 
 were living, whether they might not be well provided for ; 
 and the Court would not inquire whether they were well 
 provided for or not. 
 
 Will executing In Ilicliardson v. Barry (Ji), (a case before the Wills Act) 
 
 a power when 
 
 revoked by sub- the deceased had power under a trust deed, to dispose ot 
 sequent Wii. ggj^tg^JQ effects by a Will, attested by two witnesses: And it 
 was held, that a Will, executed accordingly, was revoked 
 by a subsequent Will directly referring to the trust deed, and 
 containing an express revocatory clause duly executed, but 
 attested by one witness only. 
 
 In Hughes v. Turner (i), the testatrix, possessing a power 
 of appointment, duly by Will executed that power : By a 
 later Will duly executed and attested according to the power,, 
 but without any recital of, or reference to, the power, she- 
 disposed of a real estate over which the power extended , 
 bequeathed all the rest, residue and remainder of her estates- 
 and effects, real or personal, plate, &c. or other property,, 
 whether in possession, reversion, or expectancy, or held in 
 trust for her ; revoked and made void all and every other 
 
 (/) 3 Ves. 327. 
 
 ((j) Cicero de Oratore, lib. 1, c. 
 
 (h) 3 Hagg. 249. 
 (i) 4 Hagg. 52. 
 
 38.
 
 Cli. III. § II.] By a Suhsequeiit Will 151 
 
 Will and Wills by her at any time theretofore made, and 
 declared this only to be her last Will and testament : The 
 Court of Delegates, holding that the intention to revoke the 
 former Will was, taking all the contents of the later Will 
 together, clear, refused probate of the two papers as together 
 containing her Will, and granted probate of the later paper 
 alone. But it has been understood (k) that the ground of 
 this decision was, that the contents of the later Will taken 
 altogether clearly showed a departure from the original 
 intention of the prior one, and therefore revoked that Will, 
 but that the clause of revocation, taken ^jcr se, and without 
 a clear intention, would not have had that effect. It was 
 argued that by refusing probate of the earlier papers, the 
 question was shut out, whether they were not a good exe- 
 tion of the power (/). But it was holden, notwithstanding, 
 that the Court of Probate must decide, according to its 
 ordinary rules, whether the last paper was revocatory or not, 
 and decreed probate accordingly in the ordinary course (m). 
 
 Again, in Brencldey v. Lynn ()t), a woman, having a power 
 to appoint certain property by Will, made a Will previously 
 to her marriage in 1834, and by her marriage settlement, of 
 even date with her Will, covenanted not to revoke that Will : 
 After her marriage she executed man}' testamentary papers, 
 but did not, as alleged, thereby in any way revoke the Will : 
 Subsequently she executed " a codicil " to " her last Will," 
 whereby she revoked her "said Will in toto," "so that I 
 may die intestate : " And Dr. Lushington held that, not- 
 withstanding an averment of the necessity of probate being 
 granted of certain former testamentary papers in addition to 
 the last " codicil," in order that the Court of Equity might 
 construe them in reference to the covenant in the settlement, 
 the Ecclesiastical Court was bound, by the authority of the 
 above-mentioned case of Hughes v. Turner, to decree probate 
 
 (k) See 4 Hagg. 71. post, Pt. i. Bk. iv. Ch. ii. § ix. ; 
 
 {I) See post, Pt. 1. Bk. iv. Ch. ii. and also Pt. i. Bk. v. Cli. in. § vi. 
 §ix. (n) 2 Robert. 441. 
 
 (m) See this case again stated,
 
 152 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 of tlie last testamentary paper alone : For it appeared from 
 that case, that the duty of deciding, whether the " last codicil" 
 was meant to revoke all the other papers, was thrown on the 
 latter Court ; and upon the facts before him it could not be 
 doubted that it was so meant (o). 
 
 From these cases, Sir C. Cresswell in the case of In the 
 goods of Merritt (_/)), appears to have deduced the rule, and 
 acted upon it, that a general clause revoking all former "Wills 
 was not sufficient to manifest an intention to revoke a ^Yill 
 made in execution of a power. 
 
 Qviestiou prior 
 to Wills Act 
 whether on the 
 revocation of a 
 latter Will a 
 former uncan- 
 celled Will 
 reyived ? 
 
 Difference for- 
 merly existed 
 hetween doc- 
 trine of Eccle- 
 siastical and 
 Common Law 
 Courts on this 
 point. 
 
 1 Vict, c 26, 
 s. 22. 
 
 It was long a vexata qucestio, w'hether the principle of law 
 was, that, on the revocation of a latter Will, a former uncan- 
 celled Will should revive, or not. In the Common Law 
 Courts, it was certainly laid down as an absolute proposition, 
 excluding all questions of intention, that the former Will 
 should revive (g). 
 
 In the Ecclesiastical Courts, it seems that a different 
 doctrine from that laid down in the Common Law Courts 
 had prevailed ; for it had been decided in a variety of cases, 
 that the presumption was against the revival of the prior Will, 
 and that the onus was thrown on the party setting it up, to 
 rebut that presumption (/•)• 
 
 Now, however, wdth respect to Wills which are within the 
 operation of the stat. 1 Yict. c. 26, it is enacted by s. 22 of 
 
 (o) See In the goods of Holt, 6 
 Notes of Cas. 93. 
 
 (p) 1 Sw. & Tr. 112, IIG, 117. 
 See also In the goods of Meredith, 
 29 L. J., P. M. & A. 155. In the 
 goods of Joys, 30 L. J., P. M. & 
 A. 160. But the authority of this 
 rule may be doubted, and it would 
 rather seem that the rule is that a 
 general revocation of Wills does 
 not necessarily revoke an appoint- 
 ment by Will, but it must lie 
 shown that it is entirely unreason- 
 able that it should have that effect. 
 
 otherwise it will be a revocation 
 of the appointment : Sotheran v. 
 Dening, 20 C. D. 99. See also In 
 the goods of Eustace, L. R. 3 P. & 
 D. 183. Re Kingdon, 32 C. D. 
 604, which last case goes far to 
 negative Sir C. Cresswell's rule 
 altogetlier. 
 
 (q) Goodright v. Glazier, 4 Burr. 
 2512. Harwood v. Goodright, 1 
 Cowp. 91. 
 
 ('•) See the different cases cited 
 in Moore v. Moore, 1 Phillim. 412.
 
 Cli. III. § II.] By a Subsequent Will. 
 
 153 
 
 that Act, that " no Will or codicil, or any part thereof, which 
 shall be in any manner revoked, shall be revived otherwise 
 than by the re-execution thereof, or by a codicil executed as 
 required by the Act, and showing an intention to revive the 
 same," and the destruction of a second Will, itself revoking 
 one of prior date {s), cannot re-instate the first Will, even 
 though it may be in existence at the time of the testator's 
 death {t). 
 
 It may here be mentioned, that it has been held, that a a codicil re- 
 codicil which shows an ineffectual intention to revive an wiii"ckst°royed 
 earlier Will, which was destroyed, does not thereby revoke a \^ testator 
 
 ■^ " does not revoke 
 
 Will made subsequently to the destroyed Will {u). a later Will, 
 
 SECTION III. 
 
 By express Revocation. 
 According to the Statute of Wills (1 Vict. c. 26, s. 20), an Revoccations 
 
 ,-,_.,, . . after Jan. 1, 
 
 express revocation oi a Will or other testamentary mstru- i838 : 
 ment cannot be effectual, unless it be contained in a Will ^ 20^' ^' " ' 
 or codicil executed as required by the Act, or in " some 
 writing declaring an intention to revoke the same, and exe- 
 cuted in the manner in which a Will is hereinbefore required 
 to be executed " (x). 
 
 By sect. 34, it is enacted, that " this Act shall not extend 
 to any Will made before January 1, 1838 : " The construc- 
 tion of which clause has been understood to be, with reference 
 
 (s) A subsequent Will may re- 
 voke a prior disjiosition, not 
 only if it contains a revocatory 
 clause but also if it is inconsistent 
 with it, e.g., if the second Will 
 disposes of the whole estate : 
 Henfrey v. Henfiey, 4 Moo. P. C. 
 29. Lemage v. Goodban, L. R. 1 
 P. & D. 57. 
 
 (t) Brown v. Brown, 8 E. & B. 
 
 876. See also In the goods of 
 Brown, I Sw. & Tr. 32. Dickin- 
 son V. Swatman, 30 L. J., P. & M. 
 84. Sotheran v. Dening, 20 C. D. 
 99. 
 
 {ic) Rogers v. Goodenough, 2 Sw. 
 & Tr. 342. See post, Pt. i. Bk. n. 
 Ch. IV. § II. 
 
 (x) See this section verbativi, 
 ante, p. 110.
 
 154 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Declaration of 
 intention to 
 revoke within 
 sect. 20 ot 
 Wills Act. 
 
 To revoke a 
 clear devise, 
 the intention 
 to revoke must 
 be as clear as 
 the devise. 
 
 to the subject of the present inquiry, that the statute shall 
 not extend to any act of revocation done with respect to a 
 Will before January 1, 1838 (?/). 
 
 Where a testatrix devised real estates, and by a subse- 
 quent void deed, attested by two witnesses, conveyed them to 
 other trusts ; it was held by Romilly, M. R., that the deed 
 was not a writing declaring an " intention to revoke" within, 
 the 20th section of the Statute of Wills. Such a declara- 
 tion need not be in terms, i.e., " I do declare that I intend to 
 revoke my Will," but must be in equivalent terms amount- 
 ing to that {z). 
 
 In the case of Doe v. Hicks {a), it was stated by Tindal, 
 C. J., in delivering the opinion of the judges in the House 
 of Lords, that the principle on which that opinion proceeded 
 was, that where a devise in a Will is clear, it is incumbent 
 on those who contend that it is not to take effect by reason 
 of a revocation in a codicil, to show that the intention to 
 revoke is equally clear and free from doubt as the original 
 intention to devise (/>), And the law thus laid down has been 
 recognized and acted upon as an established rule in numerous 
 subsequent cases (c). 
 
 (y) HoLbs V. Knight, cmte, p. 
 112. As to the express revocation 
 of Wills prior to the above date, 
 see the former editions of this 
 work, Pt. I. Bk. ii. Ch. iir. § iii. 
 
 (2) Ford V. De Pontes, 30 Beav. 
 572, And where the testator had 
 obliterated the whole of a codicil, 
 including his signature, by thick 
 black marks, and at the foot of it 
 had written the words signed by 
 himself and attested by two wit- 
 nesses " we are witnesses of the 
 erasure of the above," it was held 
 that the codicil was revoked, for 
 the words above mentioned were 
 " a writing declaring an intention 
 to revoke " within the above sec- 
 tion : In the goods of Gosling, 11 
 P. D. 79. Where a testator sent 
 
 a letter signed bj'^ himself and at- 
 tested by two witnesses, desiring 
 the destruction of his will, the 
 letter was held to revoke the will : 
 In the goods of Durance, L. R. 2 
 P. & D. 406. 
 
 (a) 8 Bing. 479. 
 
 {b) See Accord. Cleoburey v. 
 Beckett, 14 Beav. 587, per Romilly, 
 M. R. Williams v. Evans, 1 E. & 
 B. 739. Kermode v. Macdonald, 
 L. R. 1 Eq. 457, 3 Ch. 584. 
 
 (c) Patch V. Graves, 3 Drew. 
 348, 376. Robertson v. Powell, 2 
 Hurl. & C. 762. Butler v. Green- 
 wood, 22 Beav. 303. Norman v. 
 Kynaston, 29 Beav. 96. S. C. 3 
 De G., F. & J. 29. Molyneux v. 
 Rowe, 8 De G., M. & G. 368.
 
 Ch. III. § III.] Bij express Revocation. 155 
 
 Indeed, it may be stated generally as a canon of construe- Rule that a 
 tion, that a clear gift cannot be cut down by any subsequent ca^nnotYe cut 
 words unless they show an equally clear intention ((0- But down by subse- 
 
 •' i. J ^ ' quent words 
 
 in applying this rule it is sufficient that the subsequent words unless they 
 
 . ,. . -I • I' -I -1 show equally 
 
 indicate the testator s intention to cut the gift down with clear intention. 
 
 reasonable certainty, and the rule does not mean that you Application of 
 
 are to institute a comparison between the two clauses as to 
 
 lucidity (e). 
 
 It may be deduced from the case of Onions v. Tyrer{ee), and Express revo- 
 
 the authorities which have been cited in a previous section, y^ent to 
 
 (with respect to the doctrine of cancellation, dependent on ^"?*'''er dispo- 
 
 tlie efficacy of another act), that even an express revocation 
 
 of all former Wills, though not wanting in any circumstance 
 
 for a revocation, will not operate as such, if only subservient 
 
 to another subsequent disposition, which fails (/). 
 
 Generally speaking, where a Will contains a general revo- Eflfect of a 
 
 . . general revo- 
 
 catory clause, it operates a revocation oi all prior testamentary catory clause 
 
 acts. But there has already been occasion to point out (</), '° ^ ' * 
 that probate may be granted of a paper of a date prior to such 
 a Will, provided the Court is satisfied that it was not the 
 intention of the deceased to revoke the particular legacy which 
 is the subject of the earlier paper. 
 
 A codicil, which ineffectually intends to revive a prior Will A codicil in- 
 which the testator has destroyed, does not operate as a revo- revive a de- 
 cation of an intermediate Will, if it is not inconsistent there- ^t^oyed Will no 
 
 ' revocation oi an 
 
 with, and does not show any intention to revoke (/<). intermediate 
 
 ^ Will. 
 
 (d) Kiver v. Oldfield, 4 De G. & (fc) 2 Vern. 742. 
 
 J. 30. (/) By Sir W. Grant, 7 Ves. 
 
 (e) Kandfield v. Eandfield, 8 H. 3T'J ; unless it fails by reason of 
 of L. 225, 235, 238, by Lords the incapacity of the legatee : 
 Campbell & Wensleydale. As to Tupper v. Tupper, 1 Kay & J. 665, 
 the latter clause prevailing when ante, p. 131. 
 
 two clauses are irreconcilable, see {(j) Ante, p. 141. 
 
 ante, p. 145, and jjost, Pt. iii. {h) Rogers v. Goodenough, 2 
 
 Bk. in. Ch. II. § I, 4. Sw. & Tr. 342, imt, p. 181.
 
 156 Revocation of Wills. [Pt. i. Bk. ii. 
 
 SECTION IX. 
 
 Revocation hi/ the Ixcpuhlication of a Prior Will. 
 
 If a man make a AVill, and at a future period republish it, 
 such republication will revoke auy Will intermediate to the 
 original date of the prior Will and the date of its republica- 
 tion (0- But this subject will be more conveniently discussed 
 hereafter, when the doctrine of republication, generally, is 
 considered [k). 
 
 SECTION V. 
 
 Revocalion hy Marriage or other change oj circumstances, 
 and therewitJi of Presumptive or Implied Revocation. 
 
 Presumed and The different methods of expressly revoking a Will having 
 implied revoca- , -ii-, •i^.j.p j 
 
 tion_ been now considered, it remains to treat oi presumed or 
 
 implied revocation. 
 1 Vict. c. 26, It is enacted by the Wills Act, (1 Yict. c. 26, s. 19) that 
 
 s. 19 : no Will 
 
 after Jan. 1, " no Will shall be revoked by auy presumption of an inten- 
 voked by pre-" ^ion on the ground of an alteration in circumstances." 
 sumption. iji^g general rule has been, from the earliest periods of the 
 
 Ecclesiastical law, in accordance with this enactment, that a 
 Will once executed remains in force, unless revoked by some 
 act clone by the testator, animo revocandi : such as burning, 
 cancelling, making a new Will, or the like. 
 Contingent Here it may not be improper to take notice of the case of 
 
 a contingent Will, where, whether it will eventually take place 
 as a Will or not, depends upon the happening or not happen- 
 ing of a certain event. As where a person intending to go to 
 Ireland, made his Will in these words : — " If I die before my 
 return from my journey to Ireland, that my house and land 
 at F., and all the appurtenances and furniture thereto 
 belonging, be sold as soon as possible after my death, and 
 
 (i) Rogers v. Pittis, 1 Add. 38. R. 138. 
 Jansen v. Jansen, ibid. 39. Wal- (k) Post, Pt. i. Bk. ii. Ch. iv, 
 
 pole V. Lord Cholmondeley, 7 T. § ii. p. 165, et seq.
 
 Cli. III. § v.] Bij Repuhlication of a Prior Will. 157 
 
 thereout all my debts and funeral charges be paid. Item, 
 1,0001. to A. out of the said money arising by the said sale, 
 and 1001. to B. : " The testator, after making the said Will, 
 went to Ireland, and returned to England, lived some years 
 afterwards and died : It was held by Lord Hardwicke that 
 the Will was contingent, depending upon the event of the 
 testator's returning to England, or not ; and that as he did 
 return, the Will could have no effect, but was void (I). The 
 Courts, however, are cautious how they construe conditions 
 of this sort. Therefore, where a testator by three letters 
 gave certain testamentary directions, " In case I should die 
 on my travels:" it was held, that, although he returned, 
 and lived many years afterwards, yet as, by subsequent acts, 
 he recognized the papers two years before his death, his 
 return was not such a defeasance as to invalidate the dis- 
 position of his property directed by them {m). In Burton 
 v. Colling IV ood {ii), a Will written eighteen years before the 
 testator's death, containing this passage, " Lest I die before 
 the next sun, I make this my last Will," was admitted to 
 probate, the Court holding the disposition not contingent ; 
 and adherence to it being shown by careful preservation (o) . 
 
 (Z) Parsons v. Lanoe, 1 Ves. Sen. "Wills have been held to he con- 
 
 190. 1 Saund. 279, d. note to tingent. A "Will containing the 
 
 Duppa V. Mayo. words " should anything happen 
 
 (m) Strauss v. Schmidt, 3 Phil- to me on my j)assage to Wales or 
 
 lim. 209. See also Ingram v. during my stay " : Eoherts v. 
 
 Strong, 2 Phillim. 294. In Forbes Roberts, 2 Sw. & Tr. 337. "Being 
 
 V. Gordon, 3 Phillim. 625, Sir John on the eve of embarking for San 
 
 Nicholl said that where a paper Francisco, South America, or 
 
 begins, " In case of my inability Mexico, I do hereby, in case of my 
 
 to make a regular codicil to my decease during my absence being 
 
 Will, I desire the following to be fully ascertained and proved, will," 
 
 taken as a codicil thereto," the &c. : In the goods of Winn, 2 Sw. 
 
 Court had in many instances de- & Tr. 147. " Being obliged to 
 
 cidcd that it means no more than, leave England to join my regi- 
 
 " Till I make a regular Will, so ment in China, I leave this paper 
 
 long I adhere to this paper." containing my wishes. Should 
 
 {n) 4 Hagg. 176. anything unfortunately happen to 
 
 (o) The following are cases de- me whilst abroad I wish every- 
 
 cided since the Wills Act in which thing that I may be in jwssessiou
 
 158 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Evidence of 
 adherence can- 
 not establish 
 a Will which 
 is in terms 
 conditional. 
 
 Since the Wills Act it is clear that no evidence of adherence 
 can establish the Will where it is in its terms conditional, 
 as where the Will is expressed to take effect "in case of 
 the testator's decease during his absence on a particular 
 voyage " {oo), or " should anything happen to me on my 
 
 of at that time, or anything apper- 
 taining to me hereafter to be 
 divided " : In the goods of Porter, 
 L. R. 2 P. & D. 22. " In case any- 
 thing should happen to me during 
 the remainder of the voyage to 
 Sicily and back to London " : In 
 the goods of Eobinson, L. R. 2 P. 
 & D. 171. A mariner's Will com- 
 mencing " Instructions to be fol- 
 lowed if I die at sea or abroad : " 
 Lindsay v. Lindsay, L. R. 2 P. & 
 D. 459. A joint Will containing 
 the words " In case we should be 
 called oiit of this world at one and 
 the same time by one and the 
 same accident : " In the goods of 
 Hugo, 2 P. D. 73. The follow- 
 ing are cases where Wills have 
 been held not to be contingent : 
 A Will purporting to be made in 
 the exercise of a power and on the 
 assumption that the nominal hus- 
 band of the testatrix would sur- 
 vive her : Southall v. Jones, 28 
 L. J., P. & M. 112. A Will con- 
 taining the words "In the pro- 
 spect of a long journey should 
 God not permit me to return to 
 my home I make this my last 
 Will." This Will was not exe- 
 cuted until after the return of the 
 testator from the journey referred 
 to : In the goods of Cawthom, 3 
 Sw. & Tr. 417. A Will made in 
 Africa and commencing "In the 
 event of my death while serving 
 in this horrid climate or any acci- 
 dent happening to me, I leave, 
 &c." : In the goods of Thorne, 4 
 
 Sw. & Tr. 36. A Will containing 
 the words, " In the case of any 
 fatal accident happening to me 
 being about to travel by railway, 
 I hereby leave, &c." : In the goods 
 of Dobson, L. R. 1 P. & D. 88. 
 This case was distinguished from 
 the case of In the goods of Winn, 
 ubi s^i.}}., as not being limited to a 
 particular journey but referring to 
 railway travelling generally. A 
 Will in these words, " I, W. M., 
 being physically weak in health 
 have obtained permission to cease 
 from all duty for a few days, and 
 I wish during such time to be 
 removed from the brig Ajyjyellina 
 to the floating hosi^ital ship Ber- 
 vnck Walls in order to recruit my 
 health, and in the event of my 
 death occurring during such time, 
 I do hereby will and bequeath, 
 &c." In the goods of Martin, L. R. 
 1 P. & D. 380. A Will containing 
 the words, "On leaving this station 
 for Thargomindah and Melbourne 
 in case of my death on the way 
 know all men that this is a memo- 
 randum of my last Will and testa- 
 ment : " In the goods of Mayd, 6 
 P.D. 17. This case is distinguished 
 from In the goods of Porter, uli sup. , 
 as not containing the words relied 
 on by Lord Penzance in that case, 
 viz., I wish everj^thing that I may 
 be in possession of at that time {i.e., 
 at the time of his death abroad) to 
 be divided. 
 
 (oo) In the goods of Winn, 2 Sw. 
 & Tr. 147.
 
 Cli. III. § v.] By ImjMed Revocation, 159 
 
 passage to Wales or during my stay " {p) ; for in such cases 
 if the testator's parol declarations were admitted, it would be 
 nothing less than making a Will by word of mouth ; and the 
 act of adherence cannot carry the case further than a parol 
 declaration. 
 
 If at the time of the death of the testator it is uncertain Where at 
 ■whether the condition, on which the Will is to take eifect, will tor the happen- 
 or will not happen, probate will, it would seem, be granted at |i°| "^ J^ ^^°g*. 
 once though it will only determine what is to be done with tain. 
 the property in certain events {q) . 
 
 A Will may be made contingent on the assent of a third 
 party : and such Will will only be admitted to probate on 
 the happening of the contingency on which it is dependent, 
 viz., the assent of the third party (r). 
 
 Generally a Will made contingent on an event which has Conditional 
 "become impossible at the death of the testator will not be admitted to 
 admitted to probate, but a contingent or conditional codicil Probate. 
 may, it should seem, operate as a republication of a Will, or 
 to make a Will valid if it has not been duly executed, and on 
 that ground entitled to probate (-s). 
 
 Under the old law if the testator had endorsed on his Will Condition nn- 
 after its execution a memorandum that it was only to take p^^ of duly 
 effect on the happening of a particular contingency, such an executed Will, 
 endorsement would have been in itself testamentary, and 
 would have expressed his intentions in a legal form, so as to 
 have given eifect to them. But since the Wills Act, such 
 a memorandum, unless it be duly executed and attested, is 
 wholly unavailing as part of the Will, and cannot be used as 
 evidence of the testator's intention that the Will should be 
 -contingent only {t). 
 
 (p) Eoberts v. Eoberts, 1 Sw. & Ch. iv. § i. But if a JVill be con- 
 
 Tr. 337. ditional the condition must attach 
 
 {q) In the goods of Cooper, Dea. to the whole document, and there- 
 
 & Sw. 9. In the goods of Bangham, fore a revocation contained therein 
 
 1 P. D. 429. will be subject to the happening 
 
 (r) In the goods of Smith, L. R. of the contingency : In the goods 
 
 1 P. & D. 717. of Hugo, 2 P. D. 73. 
 
 (.s) In the goods of Da Silva, 2 (0 Stockwell v. Ritlierdon, 1 
 
 Sw. & Tr. 315, post, Pt. i. Bk. ii. Robert. 661.
 
 160 
 
 Mutual Wills. 
 
 Imijlied revo- 
 cation before 
 the Wills Act. 
 
 1 Vict. c. 26, 
 s. 18: 
 
 every Will to 
 be revoked by 
 the man-iage of 
 the testator or 
 testatrix : 
 
 Revocation of Wills. [Pt. i. Bk. ii. 
 
 Where two sisters, being then unmarried, made mutual 
 Wills, and the Will of one of them was afterwards revoked 
 by her marriage, it was held that the other remained un- 
 revoked (»). 
 
 Before the Wills Act the marriage of a testator did not 
 work an implied revocation, but if a woman made a Will and 
 afterwards married, the marriage alone was a revocation of 
 the Will {x). 
 
 But now, by the 18th section of that Statute (1 Vict, 
 c. 26) it is enacted, "that every Will made by a man or 
 woman shall be revoked by his or her marriage {y) (except 
 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) " {z). 
 
 This section obviously puts to rest (with respect to Wills 
 within its operation) all questions as to implied revocations, by 
 marriage, and the birth of issue, by enacting positively that 
 marriage alone shall be an absolute revocation. 
 
 But it possibly might not apply to every instance of impHed 
 revocation by a change of condition in the testator ; because it 
 has been held, at least in the Ecclesiastical Courts, that the 
 
 {u) Hinckley v. Simmons, 4 Ves. 
 160. 
 
 (x) For a statement of the law 
 and authorities as to Implied Re- 
 vocation of Wills before the Wills 
 Act, see the former editions of this 
 Work : Pt. i. Bk. ii. Ch. iii. § v. 
 
 {y) Where the husband was do- 
 miciled in this country, and had 
 been naturalized, it was held that 
 his marriage with his deceased 
 wife's sister was void, and did not 
 revoke his Will under this enact- 
 ment : Mette v. Mette, 1 Sw. & Tr. 
 416. But from the terms of Sec- 
 tion 34, it would seem that this 
 Section has no application to Wills 
 
 made before the Act. In the goods 
 of Shirley, 2 Curt. 657. 
 
 {z) See Logan v. Bell, 1 C. B. 
 872. The reason for this exception 
 is, that a revocation of the Will in 
 a case to which the exception 
 applies, would operate only in 
 favour of those entitled under the 
 settlement in default of appoint- 
 ment, and the new family of the 
 testator would derive no benefit 
 whatever from it. See In the goods 
 of Fitzroj, 1 Sw. & Tr. 133. In 
 the goods of Mc Vicar, L. E. 1 P. & 
 D. 671. In the goods of Fen wick, 
 L. R. 1 P. & D. 319. In the goods 
 of Russell, 15 P. D. 111.
 
 Ch. III. § v.] Dij Implied Revocation. 161 
 
 concurrence of marriage is not essential for the presumption 
 of revocation in all cases. 
 
 All such cases, however, appear to he provided for by the s. 19 : 
 19th section, which enacts, that " no Will shall be revoked by ^°^^edby pre- 
 any presumption of an intention on the ground of an alteration sumption. 
 in circumstances." For although, after the passing of this 
 statute, it was held in Marston v. Roe d. Fox (a), that the 
 revocation consequent on marriage and the birth of issue was 
 not, in fact, grounded on " any presumption of an intention " 
 of the testator to revoke, but took place in consequence of a 
 rule or principle of law independently of any question of 
 intention ; yet in all cases of implied revocations in the 
 Ecclesiastical Court the basis of the revocation has always 
 been held to be the intention of the testator presumed from 
 the alteration in circumstances, and consequently the 19th 
 section of the statute will prevent such revocation in 
 future. 
 
 The enactments contained in these two sections lead to 
 consequences which may be considered as somewhat harsh : 
 for by reason of the former, a man's Will must be revoked 
 by his marriage without the birth of children, in a case 
 where he had no intention to revoke it, nor any testamentary 
 duty demanding the revocation ; whereas by the operation 
 of the latter, a Will made by a married testator must 
 stand unrevoked, notwithstanding that the subsequent birth 
 of children unprovided for, and other concurrent circum- 
 stances, may raise a case (as in Johnston v. Johnston (b) ) 
 of the strongest inference that the testator did not mean to 
 adhere to the Will. 
 
 There is another sort of implied revocation, in the nature of Implied revo- 
 
 tion by 
 emptiun. 
 
 ademption ; which arises either when the subject of the be- aJe*'" '^ 
 
 quest is altered or parted with, or when the purpose, for which 
 it was bequeathed, has been provided for by the testator by 
 other means. But it will be convenient to postpone treating 
 
 (a) 8 A. & E. 14. (b) 1 PhU. 447. 
 
 W.E. — VOL. I. M
 
 from the office 
 of executor. 
 
 162 Revocation of Wills. [Pt. i. Bk. ii. 
 
 of this mode of revocation, till the subject of legacies, gene- 
 rally, is considered (e). 
 Material diffe- It may be proper, however, here to point out a material 
 
 renee between . . 
 
 Wills of realty difference with respect to this species of revocation, between 
 ally arising Wills of realty and wills of personalty, arising from the ofl&ce 
 of executor. If the whole subject of a Will of realty be 
 adeemed, the Will is completely revoked, and is wholly 
 ineffectual : but should the same thing happen with respect 
 to a Will of personalty, in which an executor is appointed, 
 the Will must still be proved, as if its dispositions had never 
 been revoked (g). 
 
 (e) See 2:>osf, Pt. iii. Bk. in. Ch. P. C. C. 29, 32, ante, p. 140. See 
 
 III. In the goods of Lancaster, 1 Sw. 
 
 ((/) Beard v. Beard, 3 Atk. 72. & Tr. 464. 
 See Henfrey v. Henfrey, 4 Moore,
 
 I 
 
 Ch. iv. § l] OJ the Republication oj Wills. 163 
 
 CHAPTER THE FOURTH. 
 
 01 THE REPUBLICATIOX OF WILLS. 
 
 By Stat. 1 Vict. c. 26, s. 22, " no Will or codicil, or any i vict. c. 26: 
 
 part thereof, which shall be in any manner revoked, shall be ^^j^^j ^^ ^^ 
 
 revived otherwise than by the re-execution thereof, or by a j^JJ^^/JsS 
 
 codicil executed in manner hereinbefore required, and showing otherwise than 
 
 ^^„^ ,. .■■ by le-executiou 
 
 an intention to revive the same ; and when any Will or codicil or a codicil 
 which shall be partly revoked, and afterwards wholly revoked, -nt^tlon^to 
 shall be revived, such revival shall not extend to so much revive it. 
 thereof as shall have been revoked before the revocation of the 
 whole thereof, unless an intention to the contrary shall be 
 shown." 
 
 SECTION I. 
 
 How a Will may he Rcpublislicd or Revived. 
 By the law as it stood before the passing of the Wills Act, What 
 
 '' . amouiitei to 
 
 by reason of the enactments of the 5th section of the Statute a republication 
 
 of Frauds, no AVill of Lands could be republished, except by I'gfore the 
 
 re-execution in the presence of three attesting witnesses, or wnis Act. 
 
 by a codicil duly executed according to the statute. But as 
 
 that section did not apply to Wills of Personalty, such a Will 
 
 might be republished, not only by an unattested codicil, or 
 
 other writing, but by the mere parol acts or declarations of 
 
 the testator {a). A Will of Personalty stood nearly in the 
 
 same situation as a Will of Lands did before the Statute of 
 
 Frauds ; — it must have been in writing, by the provisions of 
 
 the Statute of Wills, but no other formalities were necessary ; 
 
 and we find that, before the Statute of Frauds, and after the 
 
 passing of the Statute of Wills, it was holden that a written 
 
 (a) Wentw. Off. Ex. cl'. 1, p. 60, 14th edit. 
 
 M 2
 
 RcpuWication 
 of a cancelled 
 or obliterated 
 Will. 
 
 164 Of the ReiouUication of Wills. [Pt. i. Bk. ii. 
 
 Will of Lauds might be republished by parol {h) ; as where, 
 after a "Will had been revoked by operation of law, the testator 
 alloiccd it to be his Will, without writing it anew, it was 
 held a republication, and that the land should pass by the 
 Will as much as if it had never been revoked ic). 
 
 Satisfactory proof of recognition, animo repuhlicancU, by 
 the testator, was sufficient republication even of a cancelled 
 or obliterated W^ill, if it continued legible (d). 
 Republication As to republication by codicil, the cases on Wills, made 
 ill case of Wills before the W^ills Act, show that a codicil will amount to a 
 Te Wiif Ad; I'epu^lication of the Will to which it refers, whether the 
 codicil be or be not annexed to the W^ill, or be or be not 
 expressly confirmatory of it ; for every codicil is, in construc- 
 tion of law, part of a man's Will whether it be so described 
 in such codicil or not ; and, as such, furnishes conclusive 
 evidence of the testator's considering his Will as then exist- 
 ing (e). But although the effect of a codicil, as to republica- 
 tion, is by no means dependent on its being annexed to the 
 
 (h) Jackson v. Hurlock, Amb. 
 494. Beckford v. Pamecott, Cro. 
 Eliz. 493. 1 Saiind. 277, c, d. 
 
 (c) 1 Roll. Abr. 617 (Z), pi. 2. 
 
 {d) Wentw. Off. Ex. ch. 1, p. 
 65, 14th edit. 
 
 (e) Acberley v. Vernon, 3 Bro. 
 P. C. 107. Potter v. Potter, 1 
 Ves. sen. 437. Jackson v. Hurlock, 
 Ambl. 487. Gibson v. Lord Mont- 
 ford, 1 Ves. sen. 485. Serocold v. 
 Hemming, 2 Gas. t. Lee, 490. Doe 
 V. Davy, Gowp. 158. Barnes v. 
 Growe, 1 Ves. 486 (overruling Att- 
 Gen. r. Downing, Ambl. 573. 
 Pigott i: Waller, 7 Ves. 98. Good- 
 title V. Meredith, 2 M. & S. 5. 
 Hulme V. Heygate, 1 Mer. 285. 
 Rowley r. Eyton, 2 Mer. 128. Duf- 
 lield r. Elwes, 3 B. & C. 705. 
 (Juest )•. Willasey, 2 Bing. 429 ; 3 
 Bing. 614. In the goods of Grosley, 
 2 Hagg. 80 ; 1 Saund. 278, h, et scq., 
 
 note to Duppa v. Mayo. "Williams 
 V. Goodtitle, 10 B. & C. 895. Doe 
 V. Walker, 12 M. & W. 591. 
 Skinner v. Ogle, 1 Rob. 363. Doe 
 V. Marchant, 6 M. & G. 813, 825. 
 Dickinson v. Stidolph, 11 G. B. X. 
 S. 341. Ee Earle's Trust, 4 K. 
 & J. 673. So a Will or codicil 
 containing a de\-ise of real estates, 
 but not duly attested, may be re- 
 published and made operative by 
 a subsequent codicil having the 
 requisite attestation, though the 
 latter document be in no way 
 annexed to the Will or codicil. 
 But it has been held that it must 
 distinctly refer to it : see Doe r. 
 Evans, 1 Gr. & M. 42. Utterton i: 
 Robins, 1 A. & E. 423. So in Ec 
 Smith, 45 G. D. 632, Stirling, J., 
 held, in reference to the Will of a 
 married woman, which purported 
 to dispose of property over wliich
 
 Ch. IV. § I.] By Codicil. 165 
 
 Will, yet if there are several Wills of different dates, and 
 
 there be a question to which of these the codicil is to be 
 
 taken as a codicil, the circumstance of annexation is most 
 
 powerful to show that it was intended as a codicil to the Will 
 
 to which it is annexed, and to no other (/). The authorities Oki cases as to 
 
 just cited would seem to apply to Wills made since the Wills by codicil not 
 
 Act, for although the 22nd section requires that in the case of ^>^^^'^^^^- 
 
 revoked Wills the codicil should show an intention to revive 
 
 the Will, this is no more than was necessarily implied by the 
 
 finding, that the codicil so referred to the Will it revived as 
 
 to become a part of it, which was an essential finding under 
 
 the old law. 
 
 But although the general rule as to the republishing opera- A codicil will 
 tion of a codicil is as above stated, yet in all cases of this "/a cXtra'iy 
 kind the question to be considered is, whether the particular intention 
 
 , , , . . appear on the 
 
 case is or is not within the general rule {g) : for if it appears face of it. 
 on the face of the codicil that it was not the intention of the 
 testator to republish, the ordinary presumption derived from 
 the existence of the codicil will be counteracted (li). 
 
 It remains to consider the effect of the Wills Act on the 
 mode of republication ( i) or revival of Wills. 
 
 she had no disposing power during (/) Rogers v. Pittis, Add. 41. 
 
 the lifetime of her husband, that a Barnes v. Crowe, 1 Yes. 490. 
 
 codicil executed after her hus- {g) By Lord Eklon, C, in Bowes 
 
 band's death, which contained no v. Bowes, 2 B. & P. 5(»6. 
 
 reference to her Will, did not con- {h) Strathniore v. Bowes, 7 T. 
 
 stitute a rej)ublication of that R. 482. S. C. sub. nom. Bowes v. 
 
 Will, and the learned judge said Bowes in Dom. Proc. 2 B. & P. 
 
 that the passage in the text must 500. See also Lord Mansfield's 
 
 be read as speaking of a codicil judgment in Heylin v. Heylin, 
 
 which refers to the Will. Though Cowp. 132. Parker v. Biscoe, 3 
 
 a codicil confirms a Will and for B. Moore, 24. Smith v. Dearmer, 
 
 certain purposes brings down the 3 Y. «& J. 278. Ashley v. Waugh, 
 
 Will to the date of the codicil, it cited in Doe v. Walker, 12 M. & 
 
 certainly does not make the Will W. 598, 601. Moneypenny u Bris- 
 
 necessarily operate as if it had tow, 2 Russ. & M. 117. Hughes 
 
 been originally made at the date v. Turner, 3 M. & K. 666. Doe 
 
 of the codicil : Hopwood v. Hop- v. Hole, 15 Q. B. 848. Hughes 
 
 wood, 7 H. of L. 728, 740, per Lord v. Hosking, 11 Moo. P. C. 1. 
 
 Campbell. (i) The Real Propt-rty Com-
 
 166 Of tin' BepuhUcation of Wills. [Pt. i. Bk. ii. 
 
 The only rcocb in \\\ii<i\\ since the Wills Act a Will which 
 has been revoked can be revived, is that pointed out by the 
 22nd section {a). There must be a re-execution {h), or a duly 
 
 missioners (4th Eeport, pp. 33, 34) 
 intimate that since publication is 
 no longer necessary for a "Will (see 
 sect. 13 of the stat. 1 Vict. c. 26) 
 it will be improper to continiTe the 
 expression republication. But it 
 may be observed that this expres- 
 sion has always been in use, as a 
 convenient term, with respect to 
 Wills of personal estate, although 
 no publication was ever necessary 
 for their validity. And the 34th 
 section (see imd, p. 179) of the 
 Act itself (as wa.s observed by Sir 
 H. Jenner Fust in Skinner v. Ogle, 
 4 Notes of Cas. 78) distinguishes be- 
 tween a republication and a revival. 
 («) A codicil reviving a revoked 
 Will will not necessarily revive 
 every codicil thereto. The prin- 
 ciple is thus stated by Fry, J., in 
 Green v. Tribe, 9 C. D. 231, 234 : 
 "On the one hand, where a testator 
 in a codicil uses the word' Will' ab- 
 stractedly from the context, it will 
 refer to all antecedent testamen- 
 tary di.spositions which together 
 make the Will of the testator ; and 
 consequently where a testator by 
 a codicil confirms in general terms 
 ' his will ' or ' his last \\\\\ and 
 testament,' the Will together with 
 all codicils is taken to be con- 
 firmed. On the other hand, the 
 testator may by apt words express 
 his intention, to revoke any codicil 
 already made and to set up the 
 original Will unaff'ectcd by any 
 codicil." The learned Judge goes 
 on to say that the reference to the 
 date of the original Will is not an 
 indication of the intention to de- 
 
 prive all instruments other than 
 the original Will itself of any force, 
 and cites Crosbie v. Macdoual, 4 
 Ves. 610 ; Smith v. Cunningham, 
 1 Add. 448 ; Greenough v. Mar- 
 tin, 2 Add. 239 ; In the goods of 
 de la Saussaye, L. R. 3 P. & D. 
 42 ; Gordon v. Lord Reay, 5 Sim. 
 274 ; Aaron r. Aaron, 3 De G. & 
 Sm. 475, as authorities for this 
 proposition ; and after pointing 
 out that in the last two cases the 
 codicil held to be republished was 
 a codicil which, from defective 
 execution, had no proper force of 
 its own, goes on to say that the 
 disapproval expressed by Sir G. 
 Jessel of Gordon t. Eeay in Bur- 
 ton V. Newbery, 1 C. D. 234, only 
 amounted to a decision, that where 
 recourse is had to a subsequent 
 codicil to give vigour to an earlier 
 one, a mere reference to the Will 
 by its date will not operate upon 
 the earlier and inoperative codicil 
 so as to set it up. The two classes 
 of cases differ essentially : in the 
 one the earlier codicil has a proper 
 force of its own ; in the other the 
 earlier codicil must, if left to itself, 
 fail : in the one class the question 
 is. Does the later codicil revoke 
 the earlier and operative one ; in 
 the other class you incj[uire. Does 
 the later codicil set up the earlier 
 and inoperative one : to the one 
 class the principle applies that a 
 clear disposition is not to be re- 
 voked except by clear words ; to 
 the other class this principle has 
 
 [h) See page 168.
 
 Ch. IV. § I.] 
 
 By Codicil. 
 
 167 
 
 executed codicil. There are no other means of showing an 
 intention to revive (hh). Destruction of the revoking instru- 
 ment is not sufficient (c). 
 
 no application. Doe v. Hicks, 8 
 Bing. 475. Farrerv. St. Catherine's 
 College, L. R. 16 Eq. 19. See 
 also Follett v. Pettman, 23 C. D. 
 337. The same principles were 
 applied by Sir J. Hannen, where 
 the question was whether a 
 codicil, referring to a will by date, 
 revived a revoked codicil to that 
 Will, in the case of In the goods 
 of Reynolds, L. R. 3 P. & D. 
 35, in which case the deceased 
 executed a will in 1866 and a 
 codicil to it in May, 1871, and 
 in November, 1871, he executed 
 a Will which revoked all pre- 
 vious testamentary papers. In 
 1872 he executed a paper which 
 was headed, " This is a codicil to 
 the Will of R., dated May, 1866." 
 It concluded with the appoint- 
 ment of the son as executor of the 
 Will and codicil, and the attesta- 
 tion clause commenced, " Codicil 
 to the Will of R., dated May, 
 1866, in the presence of," &c. It 
 was held that the only intention 
 to be gathered from the words of 
 the codicil was that the testator 
 intended to revive the Will of 
 1866 but not the codicil of May, 
 1871. 
 
 (hh) The intention to revive, and 
 "what is intended to be revived, 
 must be gathered from the con- 
 tents of the codicil itself, and 
 evidence is not admissible in the 
 absence of latent ambiguity to 
 show what it was to which the 
 testator intended to refer : In the 
 goods of Steele, L. R. 1 P. & D. 
 575, 576. Walpole v. Lord Orford, 
 3 Ves. 402. In the goods of 
 
 Goodenough, 2 S\v. & Tr. 141. A 
 codicil referring inaccurately to 
 a Will may republish it. See 
 Jansen v. Jansen, cited by Sir J. 
 Nicholl in Rogers v. Pittis, 1 Add. 
 38. In the goods of Houblon, 11 
 Jur. N. S. 549. Lord St. Helens 
 V. Lady Exeter, 3 Phillim. 461. 
 Thompson v. Hempenstall, 1 Rob. 
 783. A reference to a prior Will 
 by date may be shown to be a mis- 
 take by internal evidence gathered 
 from the contents of the codicil : 
 In the goods of Wilson, L. R. 1 P. 
 & D. 575, 582, read in the light of 
 surrounding circumstances : In the 
 goods of May, L. R. 1 P. & D. 
 575, 582. In the goods of What- 
 man, 34 L. J., P. & M. 17. Where 
 a codicil, by mistake as to the date 
 of a prior Will, refers to an earlier 
 Will than that intended to be 
 referred to, the codicil will not 
 revive the earlier Will to which 
 it so refers, and the codicil may be 
 admitted to probate together with 
 the later Will. In the goods of 
 Ince, 2 P. D. 111. But where the 
 codicil makes reference to the pro- 
 visions of the earlier Will such 
 earlier Will is confirmed and will 
 revive ; and the mistake cannot 
 be corrected otherwise than by 
 admitting the earlier Will to pro- 
 bate together with the codicil and 
 the later Will. In the goods of 
 Stedham, 6 P. D. 205. In the 
 goods of Dyke, ihid. The refer- 
 ence need not be by date, but 
 may be inferred from a reference 
 in the reviving codicil to the 
 
 ((■) See next page.
 
 JG8 
 
 Of the Repuhlication of Wills. [Pt. i. Bk. ii. 
 
 But it must be observed that the 22nd section, is confined 
 to Wills, kc, " wJiich shall he in any manner 7'evoked." It 
 is obvious, however, that, inasmuch as the old doctrine of the 
 republication of Wills by parol acts or declarations depends 
 on the principle that the Will so recognized becomes a new 
 Will of the date of the recognition, no such republication 
 can take place, in respect of any Will whatever, since the 
 statute came into operation, because no new Will can be made> 
 
 contents of the Will intended to be 
 revived : In the goods of McCabe, 
 2 Sw. & Tr. 478. It is to be ob- 
 served that even if a codicil refer 
 to a Will with the intention of 
 reviving it, and it turns out that 
 such Will has been entirely biirnt 
 or destroyed by the testator animo 
 revocandi, the codicil cannot effect 
 its revival : In the goods of Steele, 
 L. R. 1 P. & D. 575, 576. Hale v. 
 Tokelove, 2 Eob. .318. Newton v. 
 Newton, 5 L. T. (N. S.) 218. 
 Rogers v. Goodenough, 2 Sw. & 
 Tr. 342. When a testator refers 
 in a codicil to a last Will, and 
 there is nothing in the contents of 
 the codicil to point to any parti- 
 cular Will, it must be construed 
 to refer to the Will in legal exist- 
 ence as the last Will and not to a 
 revoked Will : Hale v. Tokelove, 
 ubi siq). : p. 326. A codicil which 
 is expressed to take effect only in 
 an event which does not happen 
 republishes it should seem a Will 
 to which it refers by date, and it 
 is on this ground entitled to pro- 
 bate : In the goods of Da Silva, 2 
 Sw. & Tr. 315. 
 
 (b) As to what amounts to a re- 
 execution, see Dunn v. Dunn, L. 
 R. 1 P. & D, 277. 
 
 (c) Major v. Williams, 3 Curt. 
 432. The above section was much 
 considered by Lord Penzance in 
 
 the case of In the goods of Steele, 
 L. R. 1 P. & D. 575, where it was 
 laid down by his Lordship that a 
 codicil may, by referring in ade- 
 quate terms to a revoked Will, 
 revive that Will if it be in exist- 
 ence, but the codicil must " show 
 an intention to revive the same," 
 according to the words of the sec- 
 tion ; and in order to satisfy those 
 words the intention must appear 
 on the face of the codicil, either 
 by express words referring to a 
 Will as revoked, and importing 
 an intention to revive the same, 
 or by a disposition of the testator's 
 property inconsistent with any 
 other intention, or by some other 
 expression conveying to the mind 
 of the Court, with reasonable 
 certainty, the existence of the in- 
 tention ; and that since the passing 
 of the statute, a Will cannot be 
 revived by mere implication. It 
 was also laid down in the above 
 case that references in codicils to 
 revoked Wills by their dates were 
 insvifficient to revive them, there 
 being no evidence on the faces of 
 such codicils of an intention to 
 revive the Will so referred to. 
 But the correctness of this ruling 
 may be questioned : In the goods 
 of Reynolds, L. R. 3 P. & D. 35. 
 See In the goods of Dennis [1 891 
 P. 326.
 
 Ch. IV. § I.] 
 
 By Codicil. 
 
 169 
 
 unless with the prescribed formalities. Again, it is clear that 
 no republication can now, in any case, be effected by a codicil, 
 unless the codicil be executed according to the exigencies 
 of the statute ; because such republication depends on the 
 codicil becoming a part of the Will ; and it cannot become a 
 part unless it be so executed. But if it be so executed, it will 
 still amount to a republication of the Will, according to the 
 old law, unless it appears, on the face of it, that it was not 
 the intention of the testator to republish {d) ; or unless the 
 Will has been in some manner revoked, in which case the 
 statute further requires that the codicil should show an inten- 
 tion to revive the Will (e). 
 
 {d) Doe V. Walker, 12 M. & W. 
 591, |)osi, p. 178. Skinner r. Ogle, 
 4 Notes of Cas. 74. Eepublication 
 of Wills which are unrevoked has 
 ceased to be a matter of so much 
 importance, since now, by sect. 24 
 of the Wills Act, every Will is con- 
 strued, with reference to the real 
 estate and personal estate comprised 
 in it, to speak and take effect as if 
 it had been executed immediately 
 before the death of the testator, 
 unless a contrary intention shall 
 appear by the Will. In the cases 
 above cited there was a Will made 
 before the Wills Act, disposing of 
 real property intermediately ac- 
 quired between the Will and re- 
 publication, and the question of 
 repiiblication was therefore im- 
 portant. 
 
 (e) A Will and codicil revoked, 
 under the Wills Act, by the mar- 
 riage of the testator, were held 
 to be revived by a codicil made 
 after the marriage and duly at- 
 tested, though it did not expressly 
 confirm or revive any particular 
 Will, but referred merely to " the 
 last Will of me," and " my said' 
 Will," (it not ajipearing that more 
 
 than one Will of the testator was 
 in existence) : Neate v. Pickard, 
 2 Notes of Cas. 406. See also 
 Accord. In the goods of Terrible, 
 1 Sw. & Tr. 140. Again, where 
 one part of a Will in duplicate 
 remained undestroyed in the 
 possession of the testator, but the 
 other part in the possession of his 
 solicitor had been destroyed by 
 the testator on the execution of a 
 subsequent Will made in 1S38, in 
 terms revoking the prior Will, 
 it was held that such prior Will 
 was revived by a codicil, made sub- 
 sequently to the second Will, 
 though referring to the prior Will 
 merely by date ; for that such 
 reference sufficiently showed " an 
 intention to revive : " Payne v. 
 Trappes, 1 Eob. 583. Lord Pen- 
 zance, however, said that the deci- 
 sion proceeded upon the ground 
 that the judge was convinced of 
 the testator's intention, not that 
 he felt bound by the language in 
 the face of an opposite conviction : 
 that there may be little beyond 
 the reference by date to show the 
 intention to revive, but the Court 
 did not in Payne v, Traj)pes (iihi
 
 170 
 
 Of the Repuhlication of Wills. [Pt. i. Bk. ii. 
 
 By section 34, — " This Act shall not extend to any Will 
 made before the first day of January, 1838." 
 llesuit. The result appears to be this : that a republication or 
 
 revival by parol acts or declarations, or by an unattested 
 codicil or other writing, according to the old law, shall be 
 valid, if it took place before the 1st of January, 1838 ; but 
 that, after the expiration of the year 1837, no republication 
 shall be effectual unless by re-execution, according to the 
 solemnities required by the statute of Victoria for an original 
 Will, or by a codicil executed in the same manner, notwith- 
 standing the Will itself may have been executed before the 
 1st of January, 1838 (/). 
 
 The Will re- 
 published is a 
 new Will of 
 the date of the 
 republication ; 
 
 it revokes any 
 other Will, of 
 a date prior to 
 that of repub- 
 lication : 
 
 SECTION II. 
 
 Of the Consequences of Rejmhlication. 
 
 It has long been settled law that the republication of a 
 Will is tantamount to the making of that Will de novo ; it 
 brings down the Will to the date of the republishing, and 
 makes it speak, as it were, at that time. In short the Will so 
 republished is a new Will. 
 
 Consequently, upon the ordinary and universal principle 
 that, of any number of Wills, the last and newest is that 
 in force, it revokes any Will of a date prior to that of the 
 republication {g). 
 
 sup.), say that the date alone was 
 sufficient : In the goods of Steele, 
 L. R. 1 P. & D. 575, 578. See 
 also Hale v. Tokelove, 2 Rob. 318, 
 2}ost, p. 181. But the physical 
 annexation (by a piece of tape, e.g.) 
 of a duly executed codicil of a later 
 date to testamentary papers duly 
 executed but revoked, is no ground 
 for inferring the " intention to re- 
 vive," required by the statute. 
 And it should seem that such 
 intention can onlybe shown by the 
 
 contents of the codicil itself : Marsh 
 V. Marsh, 1 Sw. & Tr. 528. 
 
 (/) Hobbs V. Knight, 1 Curt. 
 768, 774. De Zichy Ferraris v. 
 Lord Hertford, 3 Curt. 468, 512. 
 Noble V. Phelps, L. R. 2 P. & D. 282. 
 So, conversely, a Will of lands 
 made before January 1, 1838, and 
 revoked, may be republished after 
 that day by a codicil attested by 
 two witnesses only : Andrews v. 
 Turner, 3 Q. B. 177. 
 
 ((/) Rogers i'. Pittis, 1 Add. 38.
 
 Cli. IV. § II.] Of the Consequences of ReinMicaiion, 
 
 171 
 
 But there is a great distinction between Wills and codicils distinction 
 
 , . 1 T r T M • • 1 L- between Wills 
 
 as to what is revoked : lor as every codicil is, m construction and codicils. 
 
 of law, a part of the Will, a testator by expressly referring to, 
 
 and confirming the Will, will not be considered as intending 
 
 to set it up against a codicil or codicils, revoking it in part. 
 
 And, therefore, in a case where a testator made his Will, 
 
 and afterwards executed several codicils thereto, containing 
 
 partial alterations of, and additions to the Will ; and by a 
 
 further codicil, referring to the Will by date, he changed one 
 
 of the trustees and executors, and in all other respects 
 
 expressly confirmed the Will ; this confirmation of the Will 
 
 was held not to revive the parts of it which were altered 
 
 or revoked by the former codicils; Lord Alvanley, M.E., 
 
 observing, that if a man ratifies and confirms his last Will 
 
 he ratifies and confirms it with every codicil that has been 
 
 added to it (/<). 
 
 This proposition seems to 1)e true, 
 notwithstanding the fact that a 
 later Will is not necessarily a revo- 
 cation of earlier Wills, because, 
 where such "Wills are not incon- 
 sistent, the series of Wills may 
 together constitute the last Will 
 of the testator ; for it would seem 
 that, if a man republishes one of 
 the earlier Wills in a series, he 
 is either republishing a Will which 
 is inconsistent with tlie later Wills 
 in the series, or he is republishing 
 a part of a Will constituted by the 
 series to the exclusion of the later 
 parts, and qxiacnnqxie via the tes- 
 tamentary papers later than that 
 republished are revoked. 
 
 {h) Crosbie v. MacDoual, 4 Ves. 
 610 : In the goods of De La Saus- 
 saye, L. R. 3 P. & D. 42. It is to 
 be remembered that since the 
 decision in Cutto v. Gilbert, 9 Moo. 
 P. C. 131, the fact that the revoking 
 instrument is a Will does not neces- 
 sarily make it revoke prior testa- 
 
 mentary instruments. The ques- 
 tion as to what is revoked is 
 always a question of intention. 
 Farrer v. St. Catliarine's College, 
 L. E. 16 Eq. 19. Green v. 
 Tribe, 9 C. D. 231. FoUett v. 
 Pettman, 23 C. D. 337. Where 
 there are several codicils of dif- 
 ferent dates, it will always be a 
 question to be determined from 
 the contents of the codicils, and 
 (at all events, in a Court of Pro- 
 bate) from all other circumstances 
 of the case, whether the later are 
 cumulative to, or substituted for, 
 and revocatory of the former ; and 
 if upon the face of a testamentary 
 document and the facts known to 
 the testatrix at the time of its 
 execution, it is doubtful whether 
 the testatrix intended altogether 
 to revoke a former Will, the Court 
 will admit parol evidence to as- 
 certain the intention : Methuen v. 
 Methnen, 2 Pliil. 416. Greenough 
 V. Martin, 2 Add. 239. Thorne v.
 
 172 
 
 'Of the Republication of Wills. [Pt. i. Bk. ii. 
 
 1 Yict. c. 26, 
 s. 22. 
 
 Republication 
 extends the 
 operation of 
 the Will to 
 l>ersons to 
 whom the 
 description is 
 applicable at 
 date of repub- 
 lication. 
 
 In Ujifill V. Marshall {i), a Will (dated February, 1837) 
 disposed of real and personal estate : A codicil (dated June, 
 1837) partly revoked the disposition of the personalty : A 
 memorandum (dated July, 1838) formally republished the 
 Will : And it was held that parol evidence was admissible to 
 show quo animo the memorandum was made ; and upon that 
 evidence, that the codicil was not revoked by the republication 
 of the Will. 
 
 And now, by stat. 1 Vict. c. 26, s. 22, " 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." 
 
 In a case where a Will and codicil, which had been revoked, 
 under the Wills Act, by the testator's marriage, was re- 
 vived by a codicil referring to the Will, several alterations 
 appeared on the face of the Will : And it was held by Sir H. 
 Jenner Fust, that the codicil revived the Will as it stood at 
 the time of republication, being of opinion that it was the 
 intention of the deceased in the alterations to revoke the 
 altered legacies, and that therefore he could not have in- 
 tended to revive that part of the Will which he had revoked 
 before (A). 
 
 There is another consequence of a republished Will being 
 considered as a new Will of the date of the republication, 
 which though still important in the description of persons 
 mentioned in the Will used to be of further importance in the 
 description of the estate comprised in it when Wills of land 
 spoke as from the date of the Will and not from the death, 
 viz., that the operation of the Will is by republication 
 extended to subjects which have arisen between its date 
 and republication. As if one give to Sarah his wife a piece 
 
 Rooke, 2 Curt. 799. Jenner v. 
 Ffinch, 5 P. D. 106. Ante, p. 145. 
 See also infra, Pt. i. Bk. iv. Ch. ii. 
 §v. 
 
 {i) 3 Curt. 636. 
 
 (A:) Neate r. Pickard, 2 Notes of 
 Cas. 406.
 
 Cli. IV. § II.] Of tlie Consequences of liepuhllcation. 173 
 
 of plate, or other thing, and hath no such wife at the 
 time, but after marrieth one of that name, and then 
 publisheth the Will again ; now this shall be a good 
 bequest {I). So if one devise goods which he hath not, if he 
 after do purchase the same, and then say that his Will before 
 made shall stand or be his Will, it shall be a good Will and 
 bequest : for this in effect is a new making (??i). So where a 
 man had devised a lease to his daughter, and afterwards 
 renewed the lease, which was held to amount to a revocation 
 by ademption of the lease originally bequeathed ; it was 
 holden, that the renewed lease passed by means of a codicil 
 made after the renewal, which, although it took no notice of 
 the lease, operated as a republication of the Will (w). And 
 so far has the doctrine that a republication gives words, used 
 in the original Will, the same force and effect as they would 
 have had if first written at the time of the republication, 
 been extended, that it has been considered that a bequest 
 may extend to any i^erson to whom the description is appli- 
 cable at the period of republication, though not originally 
 intended (o). 
 
 But it has been held that in the case of a married woman, ^'icciis, as to a | 
 whose Will is only the exercise of a power, her republica- exercise of a 
 tion of it by a codicil made after her husband's death has ^°^''^' '''''^^'= 
 not necessarily the effect of extending the operation of the 
 Will so as to make it include that which was not included 
 in the power given to her to make the Will : Thus, where 
 a married woman, by her Will dated in 1824, and made in 
 exercise of a power, duly appointed and devised certain 
 hereditaments therein specified, and also all other the here- 
 ditaments, if any such there were, which she had any power 
 to appoint and devise, and afterwards, when a widow, in the 
 
 {I) 1 Went. Off. Ex. c. 1, p. 62, ford v. Alforcl, 3 P. Wms. 168. See 
 
 14th edition. also Uoppin v. Femyhough, 2 Bro. 
 
 (m) 1 Went. Off. Ex. c. 1, p. 62, C. C. 291. Porter v. Smith, 16 
 
 14tli edition. Sim. 251. 
 
 ()i.) Alford V. Earle, 2 Vern. 208. (o) Perkins v. Micklothwaite, 1 
 
 S. C. cited under the nane of Al- P. Wms. 275. See ■post, p. 179.
 
 17^ 
 
 Of the RepuUication of Wills. [Pt. i. Bk. ii. 
 
 distinction 
 between Wills 
 of realty and 
 personalty in 
 this respect. 
 
 1 Yict. c. 26, 
 s. 3: 
 
 year 1829, made a codicil, whereby she gave some legacies, 
 but did not dispose of the residue of her estate, and she 
 confirmed all Wills and codicils which she had theretofore 
 made, it was held by Sir J. Eomilly, that the Will, as 
 confirmed, passed only such hereditaments as were subject 
 to her power, and not certain other hereditaments to which 
 she had become entitled at the date of the codicil ; for that 
 the codicil did not extend or enlarge the appointment, so 
 as to make it a devise of that which was not contained in the 
 power ( jj). 
 
 This consequence of republication was not so important 
 with respect to personalty as it was with regard to realty, 
 before the passing of the Wills Act (1 Vict. c. 26) ; 
 because a Will of personalty, if it contained prospective 
 words sufficiently comprehensive, would operate on the 
 personal estate of the testator, to which those words applied, 
 although acquired since the making of the Will, without 
 any republication of it (q) : whereas no real estate which the 
 testator had not at the date of the Will would pass by it, 
 however express, comprehensive, and general the words, or 
 however manifest the intention of the testator might be (r). 
 Consequently no after-purchased lands could pass, nor any 
 ands which did not remain in the same condition from the 
 date of the Will to the death of the testator, unless there 
 were a republication, according to the solemnities required 
 by the Statute of Frauds ; for any the least alteration, or 
 new modelling of the estate after the Will, was an actual 
 revocation (.s). 
 
 But now, by stat. 1 Vict. c. 26, s. 3, the power of disposing 
 by Will executed as required by that Act is extended to all 
 such real estate as the testator may be entitled to at the 
 
 (p) DuHourmelin'y, Sheldon, 19 
 Beav. 389. 
 
 (q) See, as to the ademption of 
 legacies, and the revival of adeemed 
 legacies by republication, the sub- 
 sequent part of this Treatise, (Pt. 
 
 III. Bk. in. Ch, III.) 
 
 (;•) 1 Saund. 277, e, note to 
 Duppa V. Mayo. 
 
 (s) 1 Saund. 278, e, note to 
 Duppa V. Mayo.
 
 Ch. IV. § II.] Of the Time from which they sj^eaJc. 
 
 time of his death, notwithstanding that he may become 
 entitled to the same subsequently to the execution of his 
 Will. 
 
 It should further be observed that, by the 24th section of 
 the same statute, it is enacted, ''that every Will shall be 
 construed, with reference to the real estate and personal 
 estate comprised in it, to speak and take effect as if it had 
 been executed immediately before the death of the testator, 
 unless a contrary intention shall appear by the Will " (t). 
 
 175 
 
 (t) It is not at all necessary to 
 find this "contrary intention" ex- 
 pressed in so many words, or in 
 some way quite free from doubt. 
 It is enough if it be found, on the 
 fair construction of the Will, 
 adoptingthose rules of construction 
 which are usually adopted in con- 
 struing Wills, that the contrary 
 intention does appear. Accord- 
 ingly, where in a Will of real and 
 personal estate bearing a date, 
 which date was contrasted in the 
 gift itself with the time of the 
 testator's death, the testator gave 
 "all the estates of which I am 
 now seised and possessed," and 
 used the word " now " in other 
 parts of his Will, clearly alluding 
 to the period at which he was 
 making his Will, Lord Cotten- 
 ham held that the testator had 
 thereby indicated a contrary in- 
 tention, so as to take the case out 
 of the general rule that the Will 
 shall be construed to speak and 
 to take effect from the testator's 
 death, and that real estate acquired 
 after the date of the Will did not 
 pass by it. — In the course of the 
 argument, his Lordship said he 
 admitted the word " now " would, 
 under the Act, be the time of the 
 death if there was no date to the 
 
 1 Vict. c. 26, 
 s. 24 : 
 
 a Will shall be 
 construed to 
 speak from the 
 death of the 
 testator, unless 
 a contrary in- 
 tention shall 
 appear by the 
 Will : 
 
 Will : Cole v. Scott, 1 Mac. & G. 
 518, 16 Sim. 259. (See the obser- 
 vations on this case in Langdale v. 
 Briggs, 3 Sm. & G. 253, 254. 8 
 De G., M. & G. 437, and in Ee 
 Ord, 12 C. D. 22, 25.) But in a 
 case where a testator after reciting 
 that his son was " now indebted " 
 to him in various sums of money 
 in respect of advances, and that he 
 was desirous that his son should be 
 released from the said several sums, 
 released him from "all claims in 
 respect of the aforesaid moneys^ 
 and all other moneys due from 
 him to the testator," and by a codi- 
 cil released the son from another 
 specified debt for moneys mis- 
 appropriated by the son, it was 
 held that the " contrary intention " 
 did not appear, and that the son 
 was released from the repayment 
 of the money advanced to him by 
 the testator after the date of the 
 codicil. Everett v. Everett, 7 C. D. 
 428. The Court sometimes refuses 
 to find the ' contrary intention,' 
 unless very clearly expressed, even 
 though the bequest be specific, and 
 even though the words used in the 
 Will were originally or by the time 
 of the death of the testator by reason 
 of some change in the condition, 
 have become somewhat inapt to
 
 176 Of the Repuhlication of Wills. [Pt. i. Bk. ii. 
 
 The latter of these two enactments in effect puts the case 
 of real property on the same footing as that on which 
 
 describe the subject-matter of be- 
 quest, see Trinder v. Trinder, L. 
 R. 1 Eq. G95, where a testatrix 
 having bequeathed her shares iu 
 the Great Western Railway, and 
 having at the date of her Will had 
 no shares strictly speaking in the 
 Great Western or any other com- 
 pany, but possessing Wilts and 
 Somerset stock of the Great 
 Western Railway, and also other 
 stock which was increased between 
 the date of her Will and her death, 
 it was held that all the Great 
 Western and Wilts and Somerset 
 stock in the possession of the testa- 
 trix at her death passed under the 
 bequest. And see the remarks of 
 Cairns, C., in Morrice v. Aylmer, 
 L. R. 10 Ch. 148, deciding 
 that under a bec^uest of Railway 
 ' shares ' railway ' stock ' passed. 
 See further, as to the construc- 
 tion of this section : Douglas v. 
 Douglas, Kay, 400. Bullock v. 
 Bennett, 1 Kay & J. 315. 7 De G., 
 M. & G. 283. Goodlad v. Burnett, 
 1 Kay & J. 341. Jepson v. Key, 2 
 Hiu'l. & C. 873. Langdale v. 
 Briggs, 3 Sm. & G. 246. 8 De G., 
 M. & G. 391, 437. Re Otley Rail- 
 way, 34 L. J., Ch. 596. S. C. 11 
 Jul, N. S. 818. Wagstaff v. Wag- 
 staff, L. R., 8 Eq. 229. Re 
 Ord, 9 C. D. 667 ; 12 C. D. 22. 
 Saxton V. Saxton, 13 C. D. 359. 
 Re Russell, 19 C. D. 432. Re Portal 
 & Lamb, 27 C. D. 600, reversed 30 
 C. D. 50. Re Knight, 34 C. D. 
 518. Post, Pt. III. Bk. III. Ch. iv. 
 § viii. To prevent the applica- 
 tion of the sectfon, an intention 
 must be shown excluding the effect 
 given to the Will by the statute, 
 
 namely, the effect of a continuing 
 operation during the subsequent 
 life of the testator : By Lord West- 
 bury, in Thomas v. Jones, 1 De G., 
 J. & Sm. 83. As to whether the 
 section is to be applied to an 
 excepting clause, See Hughes v. 
 Jones, 1 Hemm. & M. 765, 770. 
 The fact that a will is made before 
 a settlement creating a power will 
 not afford ground for holding that 
 such contrary intention appears by 
 the Will as that it will not execute 
 the power created by the settle- 
 ment. Boyes v. Cook, 14 C. D. 53. 
 Airey v. Bower, 12 App. Cas. 263. 
 This section applies to a specific 
 bequest of a particular thing as well 
 as to a generic bequest. When a 
 bequest is of that which is generic, 
 of that which may be increased or 
 diminished, then the Wills Act 
 requires something more on the 
 face of the Will for the purpose of 
 indicating such contrary intention 
 than it does when the Will refers 
 to a particular thing, as " my ring " 
 or " my horse," Goodlad v. Burnett, 
 1 K. & J. 341. The section applies, 
 it will be seen, as well to personal 
 as to real estate. Even before the 
 Wills Act was passed, the Will 
 spoke as regards general personal 
 estate from the death, but a verj' 
 little was held to make the bequest 
 indicate an intention to pass the 
 specific property only which the 
 testator might have belonging to 
 him of the description in question 
 at the time of making his Will. 
 Now, however, since the Wills 
 Act has expressly enacted that a 
 WiU shall be construed with refer- 
 ence to personal estate to speak and
 
 Cli. IV. § II,] Of the T'unefroin luhich they speak. 
 
 177 
 
 personal property already stood : For the general rule, as to 
 Wills of mere personalty, established before the Wills Act 
 
 take effect as if it had been exe- 
 cuted immediately before the tes- 
 tator's death, unless a contrary 
 intention appears by the Will, 
 some more specific indication of 
 such "contrary intention" is re- 
 quired than was thought sufficient 
 before the Wills Act : Goodlad v. 
 Burnett, 1 K. & J. 341. It will be 
 seen that a great many of the 
 above cited cases although dealing 
 in a sense with the question of the 
 construction of the 24th section, 
 depended mainly upon the question 
 whether the description of the 
 property contained in the Will 
 sufficiently described the property 
 of which the testator died pos- 
 sessed : for, althovigh specific gifts 
 are within sect. 24, so as to make 
 the Will cover after-acquired pro- 
 perty if the description admits of 
 it, and a contrary intention does 
 not appear by the Will (Re Ord, 
 12 C. D. 22, 25), yet the words of 
 the specific devise might, from 
 inaptness of description, exclude 
 after-acquired property of the same 
 kind, even though no contrary in- 
 tention should appear by the Will. 
 Thus where A. devised " my cot- 
 tage and all my land at S." and A. 
 subsequently contracted to pur- 
 chase a large mansion house, it was 
 held that, construing the Will as 
 made immediately before the death 
 of the testator, the words used did 
 not sufficiently describe the big 
 ?iouse : but that if A. had simply 
 devised " all my land at S." then 
 the big house would have been in- 
 cluded. Re Portal & Lamb, 30 
 C. -D. 53. A bequest, if specific 
 under the old law, remains specific 
 W.E. — VOL. I. 
 
 but is enlarged as to its effect by 
 the operation of the enactment, not 
 that the nature of the bequest is 
 altered at all (Turner, L.J., in 
 Langdale v. Briggs, 8 D. G. M. & 
 G. 391, quoted with approval by 
 Jessel, M.R., in Bothamley v, 
 Sherson, L. R. 20 Eq. 304). But 
 Lindley, L.J., in Re Portal &Lamb 
 ubi suj}., expressed his opinion that 
 this section leaves open the ques- 
 tion whether a particular property 
 passes by the specific or the 
 residuary devise. 
 
 The difficulty arising from the 
 partial inapplicability of the words 
 of the Will to the condition or 
 form of the subject-matter of be- 
 quest at the time of the death often 
 arises when the testator at the date 
 of making his Will is possessed of 
 leasehold property, but before his 
 death may have purchased the 
 reversion, and the property may 
 thus have become freehold. The 
 construction will depend upon 
 whether the words of descrijjtion, 
 though partially inapt, sufficiently 
 identify the subject-matter of be- 
 quest. The clause in the statute 
 says that the Will is to pass sucli 
 estate or interest in such real or 
 personal estate as the testator shall 
 have power to dispose of at his 
 death, and if there is nothing in 
 the Will to confine its operation to 
 the interest which the testatur had 
 at the date of the ^\'ill, the mere 
 method which the testator adopts 
 of describing his property does not 
 bind him to that and notliing else. 
 Saxton V. Saxton, 13 C. D. 359 ; 
 Cox V. Bennett, L. R. 6 E.i, 422 ; 
 Miles V. Miles, L. R. 1 Eq. 462. 
 N
 
 178 
 
 Of the Republication of Wills. [Pt. i. Bk. ii. 
 
 passed, was, that they speak from the day of the testator's 
 death, and are uot referable to the state of the property 
 at the time of making the AVill, unless there are expressions 
 in the "Will showing it was intended to describe property with 
 
 The remarks of Malins, Y.-C, in 
 Saxton V. Saxton {uhi suj).), throw 
 doubt on the authority of Emuss 
 V. Smith, 2 De G. & Sm. 722 an 
 early case in which it was held that 
 a bequest of a leasehold garden, the 
 reversion of which was afterwards 
 purchased, was adeemed by the 
 subsequent conveyance of the fee 
 to the testator, and formed part of 
 hLs residuary estate. When, how- 
 ever, it is not merely that the 
 testator's description is inapt to 
 define the condition of the pro- 
 perty at the time of his death, but 
 the words coupled with the evi- 
 dence of the testator's surroundings 
 fail to identify the subject-matter 
 itself, it appears that the property 
 will not pass imder the bequest. 
 So where a testator gave the lease 
 of the house in which he should be 
 living at the time of his decease to 
 his wife, and at the date of the 
 Will he was living in a house he 
 held for a short time at rack rent, 
 and he subsequently bought and 
 went to reside in a freehold house 
 where he died, it was held that the 
 freehold house was not devised to 
 the testator's widow: Ee Knight, 34 
 C. D. 518. See also Blagrove v. 
 Coore, 27 Beav. 138. In the case 
 of Wedgwood v. Denton, L. E. 12 
 Eq. 290, it was held that a Will 
 bequeathing a house which a testa- 
 trix held for the life of T. K., and 
 the term of twenty-one years after, 
 passed a leasehold interest in the 
 same house for seventy-five years 
 which the testatrix had obtained 
 
 since the date of the Will on the 
 surrender of the original lease, or 
 at all events that an interest passed 
 for the period of twenty-one years 
 from the death of T. K. 
 
 As to what evidence is admis- 
 sible of the surroundings of the 
 testator, both at the date of his 
 Will and subsequently up to his 
 death, see Castle v. Fox, L. E. 11 
 Eq. 542. In that case the testator 
 de-vdsed " Cleeve Coui-t with the 
 appurtenances," and Malins, V.-C. 
 held that the whole of the evidence 
 showing what the testator treated 
 as part of the Cleeve Court estate, 
 not only before but between the 
 date of his Will and his death, 
 was as legitimate as any evidence 
 that could be given, for the purpose 
 of putting the Court in the position 
 of the testator. Where a testator 
 uses language which is not in 
 itself definite, but is to a certain 
 extent popular, and does not point 
 out the subject referred to by any 
 strict boundary, then the Court 
 will apply the knowledge, that it 
 may acquire from extrinsic circum- 
 stances, to the interpretation of the 
 words he has used in his Will, and 
 when the Comt arrives at anything 
 which completely exhausts the 
 whole of those words, then, and not 
 tiU then, is there a restriction in the 
 enquiry and examination into ex- 
 trinsic circumstances, Webb v. 
 Byng, 1 K. & J. 580. See also 
 Doe V. Jersey, 3 B. & C. 870 ; and 
 Okeden v. Clifden, 2 Euss. 309.
 
 Ch. IV. § II.] Of the Time from ivhich they si')eak. 179 
 
 reference to the day of the date of the Will, and not to the 
 day of the death («). 
 
 It has been decided that the effect of this section is not Effect of s. 24. 
 to make a will valid, which was invalid in its inception 
 (e.g. a Will of a married woman unauthorised by a Power), 
 but to give a rule for the construction of a valid testamentary 
 instrument {x). But the Will of a married woman is not ex- Will of married 
 eluded by the 8th section from the operation of this section {y). excluded 
 
 Upon this enactment it may be further remarked, that even J',[/;,|f^j![^°'"j^ 
 in the case of Wills within its operation, it has not rendered of s. 24 : 
 wholly inapplicable the doctrines which have just been stated 
 with respect to the consequences of the republication of Wills ; 
 because the statute does not enact absolutely that the Will 
 shall speak as if it had been made just before the death of the 
 testator, but only that it shall do so in respect of the property 
 comprised in it. Therefore, with respect to the description of 
 persons in the Will, the law remains as before the passing of 
 the Act (0). 
 
 It is further enacted by the 34th section, that " every Will 1 Vkt. c. 26, 
 re-executed, or republished, or revived by any codicil, shall a Will repub- 
 for the purposes of this Act be deemed to have been made at Xui be deemed 
 the time at which the same shall be so re-executed, re- *« h-ave been 
 
 made when 
 
 published, or revived." republished : 
 
 (it) Cole V. Scott, 1 Mac. & G. Act, 1882, altered the law in this 
 
 529. Post, Pt. III. Bk. III. Ch. iv. respect. Re Price, 28 C. D. 709. 
 § viii. See Douglas v. Douglas, [y) Thomas v. Jones, 1 De G., J. 
 
 Kay, 400, 404, and Goodlad v. & S. 62. Noble v. Phelps, L. R., 
 
 Burnett, 1 Kay & J. 341, 347, 2 P. & D. 276. See also Willock 
 
 348, as to the cases where the tes- v. Noble, L. R. 7 H. L. 590, per 
 
 tator bequeathed the whole of Cairns, C. See ante, p. 46. 
 some one genus of his property, as (z) Bullock v. Bennett, 7 De G. 
 
 " all debts due to me on bond," or, M. & G. 283. It must be remem- 
 
 all "mi/ stock." The effect of the bered that since the Wills Act 
 
 Wills Act on cases of this kind will nothing short of re-execution of 
 
 be considered hereafter. See Pt. the Will itself, or the formal execu- 
 
 III. Bk. III. Ch. IV. § VIII. tion, under the Act, of some docu- 
 
 (x) Price v. Parker, 16 Sim. ment affirming it, can be held to 
 
 198, 202, ante, p. 58. Noble v. confer any new testamentary vali- 
 
 Phelps, L. R. 2 P. & D. 276. Nor dity upon it. See ante, p. 166. 
 has the Married Women's Property 
 
 N 2
 
 180 
 
 Of the RepuUication of Wills. [Pt. i. Bk. ii. 
 
 A codicil may 
 give effect to 
 unattested 
 alterations or 
 additions to 
 the Will : 
 
 or may render 
 valid a pre- 
 vious unexe- 
 cuted Will, &c. 
 
 Effect of codicil 
 showing inten- 
 tion to revive 
 a destroyed 
 Will. 
 
 A codicil duly executed will give effect and operation to 
 unattested alterations in a Will {d) : or to unexecuted papers, 
 which have been written between the periods of the execution 
 of the Will and codicil, where the Will if treated as executed 
 on the date of the codicil and read, as speaking at that date, 
 contains language which within the principle of Allen v. 
 Maddock (e), would operate as an incorporation of the docu- 
 ment to which it refers. But, when this is not the case, 
 the mere fact of unexecuted papers having been written or 
 signed, between the date of the Will and that of the codicil, 
 will not suffice to add such papers to the Will by force of 
 republication, or to make that testamentary which would not 
 have been so, if the Will had been originally executed at the 
 later date (/). 
 
 The general question whether, and in what cases, an 
 unexecuted Will or other paper may be rendered valid as 
 a testamentary disposition by a subsequent duly executed 
 codicil, has been already considered in an earlier part of this 
 Work (g). 
 
 A testator having, after the Wills Act came into 
 operation, duly executed two wholly inconsistent Wills, 
 destroyed the earlier one aninio revocandi, and then duly 
 executed a codicil, showing an intention to revive it. 
 Dr. Lushington held that this codicil necessarily revoked 
 the later Will, though it might be inoperative to revive the 
 earlier one by reason of its having been so destroyed. The 
 learned judge further expressed the inclination of his opinion 
 (though it was not necessary to decide that question) that 
 probate could not be decreed of the draft of the destroyed 
 Will ; for that it was an unexecuted paper, not specifically 
 adverted to or recognised by the codicil. But he gave no 
 opinion on the point, (which indeed does not appear to have 
 
 (d) Per Sir H. Jenner Fust, in 
 Skinner v. Ogle, 4 Notes of Cas. 
 79. In the goods of Wyatt, 2 Sw. 
 & Tr. 494. 
 
 (e) 11 Moo. P. C. 427. 
 
 (/) In the goods of Truro, L. R 
 1 P. & D. 201. In the goods oi 
 Lancaster, 29 L. J. P. & M. 155. 
 
 {g) Ante, Pt. I. Bk. ii. Ch. il, 
 § II. p. 86.
 
 Cli. IV. § II.] Of the Consequences of Republication. 181 
 
 been raised,) wlietlier as in the case of a lost Will, or a Will 
 destroyed unduly or sine animo revocandi (li), probate might 
 have been granted of the Will itself, as contained in the 
 draft and the depositions of the witnesses (i). 
 
 This decision was approved and acted on by Sir C. Cress- 
 well as establishing the principle that where a Will had been 
 destroyed by the testator, or with his approval, it cannot be 
 revived by any intention of his manifested in a subsequent 
 codicil (k). 
 
 It has been already observed, that although a Will made Effect of repub- 
 
 . 1 , lication by a 
 
 by a widow before or during coverture, will not revive by the widow : 
 mere circumstance of her husband's death, yet if she repub- 
 lish it, it will become valid (^). Likewise, although if the by a person 
 
 forniGrlv oi 
 
 testator made his Will while non comjjos, and afterwards non-sane m?- 
 recover his understanding, the Will does not thereby obtain ™covered*hi'&^^ 
 any force or strength {m) ; yet if he should, after having nnderstanding. 
 regained a sound state of mind, republish the Will made 
 during his former insanity, it would doubtless become a valid 
 Will. 
 
 {h) See post, Pt. i. Bk. iv. Ch. mediate "Will, not being inconsis- 
 
 II. § VII. tent therewith and not showing 
 
 (i) Hale v. Tokelove, 2 Eob. any intention to revoke it. See 
 
 318. ante, p. 155. 
 
 (k) Rogers v. Goodenongh, 2 Sw. {I) Ante, pp. 49, 58. See Du 
 
 & Tr. 342. In the goods of Steele, Hourmelin v. Sheldon, cited ante, 
 
 L. R. 1 P. & D. 575. The learned p. 174. 
 
 judge, moreover, held that the (m) Swinb. Pt. 2. s. 3, pi. 2. 
 
 codicil did not revoke an inter- Godolph. Pt. 1, c. 8, pi. 2.
 
 182 
 
 BOOK THE THIRD. 
 
 OF THE APPOINTMENT OF EXECUTORS, AND THE ACCEPTANCE 
 OR REFUSAL OF THE OFFICE. 
 
 Definition of 
 term "execu- 
 tor." 
 
 Bare nomina- 
 tion of execu 
 tor entitles 
 Will to 
 probate. 
 
 JLHE word Executor, as the term is at present accepted, 
 may be defined to be, The person to whom the execution of a 
 last Will and Testament of personal estate is, by the testator's 
 appointment, confided (d). " To appoint an executor," says 
 Swinburne (<?), "is to place one in the stead of the testator, 
 who may enter to the testator's goods and chattels, and who 
 hath action against the testator's debtors, and who may dis- 
 pose of the same goods and chattels, towards the payment of 
 the testator's debts, and performance of his Will." 
 
 The bare nomination of an executor, without giving any 
 legacy, or appointing anything to be done by him, is sufficient 
 to make it a Will, and as a Will it is to be proved (/). 
 
 {(I) 2 Black. Comm. 503. Far- 
 rington v. Kniglitlj, 1 P. "Wins. 
 548, 549. Toller, 30. 
 
 (e) Swinb. Pt. 4, s. 2, pi. 2. 
 Brownri^^g v. Pike, 7 P. D. 61-64. 
 
 (/) Godolph. Pt. 2, c. 5, s. 1. 
 Brownrigg v. Pike, 7 P. D. 61-64. 
 In the goods of Lancaster, 1 Sw. 
 & Tr. 464. This seems to he so 
 even though the "Will deals only 
 with realty : In the goods of Jor- 
 dan, L. E. 1 P. & D. 555. But 
 such a W^ill cannot be proved if 
 no executor be appointed : In the 
 goods of Bootle, L. E. 3 P. & D. 
 177. Nor if the "Will be that of a 
 married woman in execution of a 
 jpoxuer which relates only to real 
 estate. O'Dwyer r. Geare, 1 Sw. 
 
 6 Tr. 4G5. In the goods of Bar- 
 den, L. E. 1 P. & D. 325. In the 
 goods of Tomlinson, 6 P. D. 209. 
 See In the goods of Hornbuckle, 15 
 P. D. 149, 151. But the Will 
 of a married woman dealing only 
 with realty, but appointing exe- 
 cutors, is entitled to jirobate where 
 a portion of the estate consists of 
 personalty vested in her by virtue 
 of the Married Women's Property 
 Act, 1882 : In the goods of 
 Cubbon, 11 P. D. 169. Or of pro- 
 perty to which she is entitled as 
 separate estate : Brownrigg v. Pike, 
 
 7 P. D. 61. See also lu the goods 
 of Hornbuckle, 15 P. D. 149. See 
 ante, p. 58, 162.
 
 183 
 
 CHAPTER THE FIRST. 
 
 WHO IS CAPABLE OF BEING AN EXECUTOR. 
 
 VJENERALLY speaking, all persons who are capable of wiio may be 
 making Wills, and some others besides, are capable of being ' ^^'^^ °'' 
 made executors (a). From the earliest time it has been a 
 rule, that every person may be an executor, saving such as 
 are expressly forbidden (b). 
 
 It seems to be admitted that the King may be constituted The King. 
 executor ; in which case he appoints such persons as he shall 
 think proper to officiate the execution of the Will, against 
 whom such as have cause of action may bring their suits : 
 also the King may appoint others to take the accounts of 
 such executors (c). Thus, Katherine, Queen Dowager of 
 England, mother of Henry the Sixth, made her last Will 
 and Testament, and, thereof constituted King Henry the 
 Sixth her sole executor : Whereupon the King appointed 
 Robert Rolleston, keeper of the great wardrobe, John Mers- 
 ton, and Richard Alreed, esquires, to execute the said Will, 
 by the oversight of the Cardinal, the Duke of Gloucester, and 
 the Bishop of Lincoln, or two of them, to whom they should 
 account (d). 
 
 Doubts have been entertained whether a Corporation Corporations. 
 aggregate can be executor; principally because they cannot 
 prove a Will, or at least cannot take the oath for the due 
 execution of the office {e). But there are authorities in 
 
 (a) 2 Black. Comm. 503. other grounds of the last author's 
 
 {b) Swinb. Pt. 5, s. 1, pi. 1. doubt are stated to be : 1st, Be- 
 
 (c) Godolph. Pt. 2, c. 1, s. 2. cause they cannot be feoffees in 
 
 (d) 4 Inst. 335. trust, to others' use : 2ndly, They 
 
 (e) 1 Black. Comin. 477. Com. are a body framed for a sjjecial 
 Dig. Admon. B. (2). Went. Off. purpose. 
 
 Ex. c. 1, p. 39, 14th edit. The
 
 18^ 
 
 Who is Capable ofheing an Executor.. [Ft. i. Bk. in. 
 
 A Partnersbij) 
 Firm. 
 
 Aliens. 
 
 Infants. 
 
 3S Geo. TIT. 
 c. 87 : sole 
 
 favour of the capability (/) ; and it is said to be now settled, 
 that on their being so named, they may appoint persons 
 styled Syndics, to receive administration with the Will 
 annexed, who are sworn like other administrators (/y). No 
 doubt appears ever to have been entertained, but that a 
 corporation sole may be executor {h). Where a testator in 
 India nominated his brother, and " Messrs. Cockerell & Co., 
 East India agents, London," and one A. B., to be his 
 executoi's, and before his death the firm of Cockerell & Co., 
 which consisted of four members, had been dissolved. Sir H. 
 Jenner Fust held that the appointment was not of the firm 
 collectively, but of the persons composing it individually, and 
 that each of the members was entitled to be joined in the 
 probate with the other executors (0- 
 
 By the " Naturalization Act, 1870," an alien has the same 
 capacity of taking, acquiring, holding and disposing of pro- 
 perty as if he were a natural-born British subject (A), and is 
 therefore capable of being an executor il). 
 
 An infant may be appointed executor, how young so ever 
 he be {m), and even a child in ventre sa mere (n), (who is 
 considered in law, to all intents and purposes, as actually 
 born) (o), inasmuch that when such is so appointed, if the 
 mother bring forth two or three children at that one birth, 
 they ai-e all to be admitted executors ( j;). But if an infant 
 
 (/) Swinb. Pt. 5, s. 9. Godolph. 
 Pt. 3, c. 1, s. 1. 1 Roll. Abr. tit. 
 Executors, T. 7, citing 12 E. 4, 
 9, b. 
 
 {g) 3 Bac. Abr. by Gwillim, p. 
 5, tit. Executors, A. 2. Toller, 30, 
 31. In the goods of Darke, 1 Sw. 
 & Tr. 516. But the grant will not 
 be made until the appointment of 
 Syndics is before the Court, ibid. 
 
 {h) Godolph. Pt. 2, c. 6. Wentw. 
 Off. Ex. p. 39, 14th edit. See In 
 the goods of Haynes, 3 Curt. 75. 
 
 (i) In the goods of Fernie, 6 
 Notes of Cas. 657. 
 
 (/:) See stat. 33 & 34 Yict. c. 14, 
 s. 2. See ante, p. 9. 
 
 (I) As to the question of the 
 capability of aliens to be executors 
 prior to the passing of the above 
 Act, see the former editions of this 
 work, Pt. I. Bk. iii. Ch. i. 
 
 (m) Wentw. Off. Ex. c. 18, p. 
 390, 14th edit. Swinb. Pt. 5, s. 1, 
 pi. 6. 
 
 (n) Godolph. Pt. 2, c. 9, s. 1. 
 
 (o) 2 Saund. 387, note to Pure- 
 foy v. Eogers. 
 
 (2^) Godolph. Pt. 2, c. 9, s. 1.
 
 Cli. I.J Mlio is Ctvpahlc ofheing an Executor. 185 
 
 be appointed sole executor, by statute 38 Geo. III. c. 87, executor can- 
 
 : ... ^ not act till 21 
 
 s. 6, he IS altogether disqualifiecl from exercising his otnce years old: 
 
 during his minority, and administration, cum testamento 
 
 annexo, shall be granted to the guardian of such infant, or to 
 
 such other person as the Court shall think fit, until such 
 
 infant shall have attained the age of twenty-one years {q). 
 
 This Act only applies in case of an infant being sole executor ; 
 
 for if there are several executors, and one of them is of full 
 
 age, no administration durante minore cetate ought to be 
 
 granted ; for he who is of full age may execute the Will (r). 
 
 It has been said, that if it be a woman infant who is made whether if an 
 
 T .„ 1 T , T , „ , , •. • -c infant execu- 
 
 executnx, and if her husband be ot age and assent, it is as it trix take has- 
 she were of age, and her husband shall have the execution of ^^e'[°*g^ali 
 
 the Will U) : and in Princes case it), it was resolved by the have the 
 
 execution, 
 justices of the Common Pleas, that if administration be com- 
 mitted during the minority of the executrix, and she take 
 husband of full age, then the administration shall cease. But 
 this has since been doubted (u). 
 
 Formerly a married woman could not by the Law of Faw covert : 
 England take upon her the office of executrix or administra- 
 trix without the consent of her husband. But now by the 
 Married Women's Property Act, 1882, [which came into force Married 
 
 ^ J ' '^ Women's Pro- 
 
 Jan. 1, 1883] it is enacted (sect. 1, sub-s. 2), "that a married perty Act, 
 
 woman shall be capable of entering into and rendering herself Yi(.t7c. 75. 
 
 liable in respect of and to the extent of her separate property s. l (sub-s. 2) : 
 
 on any contract .... as if she were a feme sole,'' and 
 
 also (sect. 24) " the word * contract ' in the Act shall include s. 24: 
 
 {q) See In the goods of Stewart, See furtlier, 'post, Pt. l. Bk. v. Ch. 
 
 L. K. 3 P. & D. 244. Post, iii. § iii. as to infant executors and 
 
 Pt. I. Bk. V. Ch. III. § III. Before administration durante minoritate. 
 
 the passing of this Act the law See also 2 Williams' Notes to 
 
 considered him capable of acting Saunders, 637. 
 
 as executor at the age of seventeen: (s) Wentw. Off. Ex. c. 18, p. 392. 
 
 Godolph. Pt. 2, c. 9, s. 2. Svvinb. Toller, 31. 
 
 Pt. 5, s. 1, pi. 6. (0 5 Co. 29, b. 
 
 (r) Pigot and Gascoigne's case, (u) See post, Pt. I. Bk. v. Ch. ill. 
 
 cited Brownl. 46. Foxwist v. Tre- § ill. 
 maine, 1 Mod. 47, by Twysden, J.
 
 186 
 
 \Viio is CajKthle ofheuuj an Executor. [Pt. i. Bk. lii. 
 
 8. 18. 
 
 Extent of 
 application of 
 Man-ied 
 Women's Pro- 
 perty Act. 
 
 Persons attaint 
 and outlaws. 
 
 the acceptance of any trust or of the oflBce of executrix or 
 administratrix . . . ." The Act also (sect. 18) enables 
 a married woman who is an executrix or administratrix alone 
 or jointly with any person or persons of the estate of any 
 deceased person to act in such office as if she were a, feme sole 
 for purposes of action, transfer of stock, t^c, without any 
 consent on the part of her husband. These sections would 
 seem to apply to any married woman whether married before 
 or after the commencement of the Act, and so since this date 
 (Jan. 1, 1883) it has become unnecessary to consider the 
 question as to the consent of the husband, as the wife as 
 such executrix or administratrix now acts independently of 
 him in all respects as if she were a feme sole. 
 
 There are few or none, who, by our law, are disabled, on 
 account of their crimes, from being executors : and therefore 
 it has always been holden, that persons attainted or outlawed 
 may sue as executors, because they sue in auter droit, and for 
 the benefit of the parties deceased (v). And it has been 
 decided that a person appointed executor, and after the 
 testator's death convicted of felony, is not thereby disentitled 
 to maintain a suit in a Court of Probate with a view of 
 establishing the validity of the Will by which he is appointed 
 executor ; for that his office being in auter droit was not 
 forfeited by the conviction (x). By the civil and canon law. 
 
 (v) Wentw. Off. Ex. 36, 14th 
 edition. Godolph. Pt. 2, c. 6, s. 1. 
 Vin. Abr. tit. Otlawiy, n. a. pi. 2. 
 So a villein was capable of being 
 an executor : Swiub. Pt. 5, s. l,pl. 3 ; 
 Off. Ex. 36, 14th edition : and the 
 lord could not seize those goods 
 which he had to the use of the 
 deceased ; and he might sue his 
 lord for a debt due to the testator : 
 Lit. B. 2, c. 11, s. 192. But it was 
 held that an outlaw could not 
 move to have an attorney's bill 
 taxed, where he (the outlaw) was 
 administrator, with the Will an- 
 
 nexed, by which all the personal 
 estate was bequeathed to him, 
 subject to payment of the debts, 
 &c., and one of the bills which he 
 sought to tax related to business 
 done for himself and the testatrix 
 j ointly, and the other to business 
 done for the testatrix alone : Ee 
 Mander, 6 Q. B. 867. 
 
 {x) Smethurst v. Tomlin, 2 Sw. 
 & Tr. US. Xor will the Court 
 pass over an executor by reason of 
 his bad character only. In the 
 goods of Samson, L. R. 3 P. & D. 
 48.
 
 Ch. I.] Who is CajJahle ofhemg an Executor. 187 
 
 indeed, not only traitors and felons, but heretics, apostates, 
 usurers, famous libellers, incestuous bastards, and many 
 others, are incapable of being executors {y). 
 
 The Court cannot refuse to grant the probate of a Will to a Persons in 
 person appointed executor, on account of his poverty or insol- "^'^^ P'' ^"^°^" 
 
 ^ i J vent circum- 
 
 vency. Therefore, where, to a mandamus to the judge of the stances: 
 Prerogative Court, to grant the probate of a Will to a person 
 named executor therein, the Ordinary returned that he was 
 an absconding person, and insolvent, and that he refused to 
 give caution to pay legacies bequeathed to some of the testa- 
 tor's infant relations ; a peremptory mandamus was granted ; 
 for the Ordinary has no authority to interpose and demand 
 caution of the executor when the testator himself required 
 none {z). 
 
 So where, after probate of the Will, the executor became bankrupt : 
 bankrupt, and a suit was commenced in the Ecclesiastical 
 Court to revoke the probate, and grant administration to 
 another ; the Court of Queen's Bench granted a prohibi- 
 tion {a). 
 
 The consequence of these decisions was, that the Court of when the Court 
 
 Chancery was forced to assume a new jurisdiction {h) : and controUedTn- 
 
 that Court restrained an insolvent or bankrupt executor, and •'^"l^^"* e^ecu- 
 
 ^ ' tors by the 
 
 appointed a receiver : and if it was necessary to bring actions appointment of 
 
 rccGivGrs ' 
 
 at law to recover part of the effects, since that must be in the 
 name of the executor, the Court compelled him to allow his 
 name to be used (c). 
 
 {y) Swinb. Pt. 5, s. 2, 3, 4, 7, 9, (c) Uterson v. Mair, 2 Ves. jun. 
 
 10. Godolph, Pt. 2, p. 6. 95. Scott v. Becher, 4 Price, 346. 
 
 (z) Rex V. Sir Eicliard Raines, In like manner it restrained the 
 
 1 Lord Raym. 361. S. C. 1 Salk. assignees of a bankrupt executor 
 
 299. 3 Salk, 162. 1 Stra. 672. from paying over the fund to him, 
 
 Carth. 457. Holt, 310. Hathorn- and tliis upon petition in the bank- 
 
 thwaite v. Russell, 2 Atk. 127. ruptcy, from the peculiar authority 
 
 S. C. Barnard. Chan. C. 334. See ifc had over them : Ihid. Possibly 
 
 also 3 P. Wms. 336, note to Slan- now, however, since the fusion by 
 
 ning V. Style. the Judicature Act of all the Courts 
 
 (a) Hills V. Mills, 1 Show. 293. into one, the Probate Division 
 
 {h) By Lord Mansfield, in Rex V. would refuse to grant ])robate in 
 
 Simpson, 1 W. Black. 458. any case where Equity would
 
 188 
 
 TTVio is cajxihle of being an Executor. [Pt. i. Bk. iii. 
 
 But if a person, known by the testator to be a bankrupt or 
 insolvent, be appointed an executor by bim, such person 
 cannot, on the ground of insolvency alone, be controlled by 
 the appointment of a receiver {d). It is not, however, to be 
 inferred from the circumstance of the Will having been made 
 some time before the commission, and not altered afterwards, 
 that the testator had a deliberate intention to entrust the 
 management of his estate to an insolvent executor {c). It 
 must be observed, finally, that the Court will certainly not 
 grant a receiver upon the single ground, that the executor is 
 in mean circumstances (/). 
 
 The general principle upon which the Court will restrain 
 executors and administrators by the appointment of receivers 
 will be pointed out hereafter (f/). 
 Nm compotes. By our law, as well as by the civil law, idiots and lunatics 
 are incapable of being executors or administrators ; for these 
 disabilities render them not only incapable of executing the 
 trust reposed in them, but also by their insanity and want of 
 understanding they arc incapable of determining whether 
 they will take upon them the execution of the trust or 
 not ill). 
 
 Therefore it has been agreed, that if an executor become 
 non compos, the Court may, on account of this natural dis- 
 ability, commit administration to another (i). 
 
 restrain the executor (if proloate 
 were granted to liim) and appoint 
 a receiver. See In the goods of 
 Gimn, 9 P. D. 242. As to the dis- 
 ability in former times of persons 
 excommunicated, Eoman Catholics, 
 persons denying the Trinity, &c., 
 and persons not qualifying for 
 office, see the former editions of 
 this Work, Pt. i, Bk. in. Ch. r. 
 
 {d) Gladdon v. Stoneman, 21st 
 March, 1808, coram Lord Eldon, 
 C, reported in a note to 1 Madd. 
 143. Langley v. Hawke, 5 Madd. 
 46. Stainton v. The Carron Com- 
 
 pany, 18 Beav. 146, 161. 
 
 (e) Langley v. Hawke, 5 Madd. 
 46. 
 
 (/) Hathornthwaite v. Russell, 
 2 Atk. 126. S. C. Barnard. Chanc. 
 Cas. 334. Anon. 12Ves.4. Howard 
 V. Papera, 1 Madd. 142. 
 
 (9) Infra, Pt. v. Bk. 11. Cli. 11. 
 
 {h) Godolph. Pt. 2, c. 6, s. 2. 
 Bac. Abr. Exors. (A.) 5. 2 Eobert. 
 
 133, 134. 
 
 (i) Hills V. Mills, 1 Salk. 36. 
 Evans v. Tyler, 2 Robert. 128, 
 
 134. See post, Pt. i. Bk. v. Ch. ni. 
 §vi.
 
 189 
 
 CHAPTEE THE SECOND. 
 
 OF THE APPOINTMENT OF EXECUTORS — BY WHAT WOEDS 
 EXECUTORS MAY BE APPOINTED. 
 
 An Executor can derive his office from a testamentary ap- 
 pointment only (a). 
 
 His appointment may either be express, or constructive ; Executor ac- 
 in which case he is usually called executor according to the llnoTf *° *^^ 
 tenor ; 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 appertain to 
 an executor, it amounts to as much as the ordaining or 
 constituting him or them to be executors (6). 
 
 As if he declare by his "Will that A. B. shall have his by words point- 
 goods after his death to "pay his debts, and otherwise to oShte^f^r 
 dispose at his pleasure," or to that effect, by this A. B. is executor: 
 made executor (c). So if the testator say, "I commit all 
 my goods to the administration of A. B." {d), or, to " the 
 disposition of A. B." (e) ; in this case he is made executor. 
 
 ((() A Will (says the author of said on his death-bed to his wife 
 the Office of Executor, p. 3, 14th that she should paij all and take all, 
 edit.) is the only bed where an by this she was executrix : Bright- 
 executor can be begotten or con- man v. Keighley, Cro. Eliz. 43. 
 ceived. According to the old (d) Godolph. Pt. 2, c. 5, s.J 3. 
 doctrine, an executor could not be Bro. Executors, pi. 73. 
 primarily appointed in a codicil. (e) Pemberton v. Conj^, Cro. 
 
 (5) Swinb. Pt. 4, s. 4, pi. 3. Eliz. 164. Godolph. Pt. 2, c. 5, s. 3. 
 
 Godolph. Pt. 2, c. 5, s. 2. Wentw, So if he says, " I will that A. B. 
 
 Off. Ex. 20, 14th edition. In the shall dispose of my goods which 
 
 goods of Manly, 3 Sw. & Tr. 56. are in his custody," he is thereby 
 
 (c) Hid. Henfrey v. Henfrey, 4 made executor of those parcels or 
 
 Muore, P. C. C. 33. So where one goods : Ibid.
 
 190 
 
 Of the A2'>pointment of Executors. [Pt. i. Bk. in. 
 
 And where certain persons were directed by the Will to pay 
 debts, funeral charges, and the expenses of proving the Will, 
 they were held to be clearly executors according to the 
 tenor (/). So where the testator in a codicil said, " I appoint 
 my nephew my residuary legatee, to discharge all lawful 
 demands against my Will," the nephew was admitted exe- 
 cutor (r/). So if the testator say, "I make A. B. lord of all 
 my goods " {h), or " I make my wife lady of all my goods " (i), 
 or " I leave all my goods to A. B." {!:), or " I leave A. B. 
 legatary of all my goods " (Z), or " I leave the residue of all 
 my goods to A. B." (m), it will amount to the appointment 
 of such persons respectively as executors according to the 
 tenor (h). And where by his W^ill a testator said, " I appoint 
 A. B. and C. D.," but did not state in what capacity he ap- 
 pointed them : and also bequeathed legacies to " each of my 
 executors," and gave to his " said executors " the residue of 
 his property, with certain directions as to it, the Court held 
 that by the words of the Will A. B. and C. D. were appointed 
 
 (/) In the goods of Fry, 1 
 Hagg. 80. See also In the goods 
 of Almosnino, 1 Sw. & Tr. 508. 
 In the goods of Collett, Dea. & 
 Sw. 274. In the goods of Baylis, 
 L. R. 1 P. & D. 21. In the goods 
 of Adamson, L. R. 3 P. & D. 253. 
 In the goods of Bell, 4 P. D. 85. 
 In the goods of Lush, 13 P. D. 20. 
 
 {g) Grant v. Leslie, 3 PhiUim. 
 116. 
 
 Qi) Godolph. Pt. 2, c. 5, s. 3. 
 Swinb. Pt. 4, s. 4, pi. 3. 
 
 (i) Swinb. Pt. 4, s. 4, pi. 3. 
 
 Ik) Godolph. Pt. 2, c. 5, s. 3. 
 Swinb. Pt. 4, s. 4, pi. 3. 
 
 (m) Ihid. " I devise all my per- 
 sonal goods to my two daughters 
 and my wife, whom I make execu- 
 trix ; " this was holden to appoint 
 them all three executrices : Fox- 
 
 with V. Tremaine, Ventr. 102. So 
 where a Will contained a clause to 
 the eifect " I appoint my sister 
 A. B. my executrix, only request- 
 ing that my nephews C. D. and 
 E. F. will kindly act for and with 
 this dear sister." C. D. and E. F. 
 were held to be executors accord- 
 ing to the tenor : In the goods of 
 Brown, 2 P. D. 110. See Powell 
 V. Stratford, 3 Phil. 118. 
 
 (h) In Androvin v. Poilblanc, 3 
 Atk. 301, Lord Hardwicke said, a 
 person named "universal heir," in 
 a Will, would have a right to go 
 to the Ecclesiastical Court for the 
 probate. But it has lately been 
 held otherwise as to a person 
 named universal legatee : In the 
 goods of Oliphant, 1 Sw. & Tr. 
 525. 
 
 I
 
 Ch. II.] Of the Appointment of Executors. 191 
 
 executors (o). Again, where a testator did not specifically 
 appoint any executor but nominated four persons to act as 
 his trustees, and bequeathed to them his residuary estate, 
 with power to receive any sums due to the residue, and to 
 give a discharge for the same, and in the Will gave directions 
 to his " executors," using the terms " trustees " and executors 
 indifferently, as referring to the same persons, it was held that 
 the trustees were executors according to the tenor, and entitled 
 to probate {p). But it appears that the practice of the Pre- 
 rogative Court has been to grant administration with the Will 
 annexed to the universal legatee of a testamentar}' paper, but 
 not to decree probate to him as executor according to the 
 tenor. And Sir C. Cresswell, on a late occasion, adhered to 
 this practice [q). 
 
 Where the testator gave divers legacies, and then appointed 
 that, his debts and legacies being paid, his wife should have 
 the residue of his goods, so that she put in security for the 
 performance of his Will, this was held by three common law 
 judges to make her executrix (r). Again, where the Will 
 said nothing of the testator's debts, but contained only 
 devises of real and] personal legacies, to be paid within 
 two months after his death, and concluded, without any 
 bequest of the residue or express appointment of executors, 
 in these words, " I appoint A. B., C. D., and E. F., to receive 
 and pay the contents above mentioned ; " Sir G. Lee held 
 that the persons so named were executors according to the 
 tenor ; for they could not receive and pay the legacies 
 without collecting in the effects ; and no one can assent to a 
 legacy but he that has the'management of the estate, because 
 legacies cannot be paid till after the debts, and he only who 
 
 (o) In the"goo(is of Bradley, 8 queath the residue of his goods 
 P. D. 215. the debts discharged, in this case, 
 
 (p) In the goods of Leven, 15 according to Swinburne, the uni- 
 P. D. 22. /^^ "^diu^jiK. . versal legatary doth still remain 
 
 {(l) In the goods of Oliphant, 1 >. legatary, and is to receive his 
 Sw. & Tr. 525. -t legacy at the hands of the execu- 
 
 (r) Wentw. Off. Ex. p. 20, 14th ^ tor or administrator: Swinb. Pt. 4, 
 edition. But if tlie testator be- '"* s. 4, pi. 7.
 
 192 
 
 Of the Apj)omtment of Executors. [Pt. i. Bk. iii. 
 
 ■Where persons 
 have been held 
 not to be exe- 
 cutors accord- 
 ing to the 
 tenor : 
 
 by necessary 
 implication. 
 
 lias the management of the estate knows whether the assets 
 are sufficient (s). 
 
 But where a testator, being entitled to many shares in the 
 Sun Fire Office, and in the mines of Scotland, and a lease 
 for years of a coal-meter's place, gave the same, by a Will 
 containing no appointment of an executor, to trustees in 
 trust for his daughter, and after several contingencies gave 
 the remainder thereof to his son, and if he should die in his 
 minority without issue, gave the remainder thereof to the 
 trustees for their own use, and gave all the residue of his 
 estate to the said trustees, to pay one moiety to his daughter, 
 and the other moiety to his son ; Sir G. Lee held that there 
 were no words in this Will that made the trustees executors ; 
 inasmuch as they had only power to pay what was vested in 
 them as trustees to the particular persons for whose use 
 they held it, but had not a general power to receive and pay 
 what was due to and from the estate, which is the office of 
 an executor (t). So where the whole personal estate was left 
 to a trustee on trust for a specific purpose, and no executor 
 was named in the Will, it was held by Sir C. Cresswell that 
 such trustee was not entitled to probate as executor according 
 to the tenor (ii). 
 
 An executor may be appointed by necessary implication : 
 
 (.s) Pickering v. Towers, 2 Cas. 
 temp. Lee, 401. 
 
 (t) Boddicott V. Dalzeel, 2 Cas. 
 temp. Lee, 294. See also Faw- 
 kener v. Jordan, ibid. 327 ; and 
 Moss V. Bardwell, 3 Sw. & Tr. 187, 
 as to the distinction between the 
 offices of trustee and executor. 
 
 (u) In the goods of Jones, 2 Sw. 
 & Tr. 155. Unless the Court can 
 gather from the words of the Will 
 that a person named trustee therein 
 is required to pay the debts of the 
 deceased, and generally to admi- 
 nister his estate, it will not grant 
 probate to him as executor accord- 
 ins to the tenor thereof : In the 
 
 goods of Pimchard, L. R. 2 P. & 
 D. 369. In the goods of Lowry, 
 L. R. 3 P. & D. 157. In the goods 
 of Baylis, L. R. 1 P. & D. 21. In 
 the goods of Stewart, L. R. 3 P. & 
 D. 244. But a direction in a Will 
 to a person to pay the testator's 
 debts or funeral expenses out of a 
 particular fund and not out of the 
 general estate, does not constitute 
 such person executor according to 
 the tenor : In the goods of Davis, 
 3 Curt. 748. In the goods of 
 Toomy, 3 Sw. & Tr. 562. In the 
 goods of Fraser, L. R. 2 P. & D. 
 183.
 
 CL ii.J Of the Appointment of Executors. 193 
 
 as where the testator says, " I will that A. B. he my exe- 
 cutor, if C. D. will not ; " in this case C. D. may he admitted, 
 if he please, into the executorship {x). So where the testator 
 gave a legacy to A. B. and several legacies to other persons, 
 among the rest, to his daughter-in-law, C. D. : immediately 
 after which legacies followed these words ; " but should the 
 within-named C. D. he not living, I do constitute and 
 appoint A. B. my whole and sole executrix of this my last 
 Will and Testament, and give her the residue; " probate was 
 decreed to C. D., as executrix by implication, according to 
 the tenor of the Will {y). Or if the testator supposing his 
 child, his brother, or his kinsman to be dead, say in his 
 Will, " Forasmuch as my child, my brother, &c., is dead, I 
 make A. B. my executor," in this case, if the person whom 
 the testator thought dead be alive, he shall be executor (-2'). 
 So where a man made his last Will, and did will thereby, 
 that none should have any dealings with his goods until 
 his son came to the age of eighteen years, except J. S,, by 
 this J. S. was held to be made executor during the minority 
 of his son (a) . 
 
 There is a great distinction between the office of coadjutor, What words 
 
 mi T appoint a 
 
 or overseer, and that oi executor, ihe coadjutor, or over- coadjutor or 
 
 {x) Godolph. Pt. 2, c. 5, s. 3. hold ; because an " executor may 
 Swinb. Pt. 4, s. 4, pi. 6. If the not be instituted, nor the office uf 
 testator makes A. B. or C D. his executor inferred, only by conjee- 
 executors, in this case they shall turals." Where a testatrix exe- 
 both be executors, for " or " shall cuted a Will containing these 
 be construed, " and : " Godolph. words : " I leave the sum of one 
 Pt. 2, c. 5, s. 3, c. 3, s. 1. sovereign each to the executor 
 
 {y) Naylor v. Stainsby, 2 Cas. and witness of my Will for their 
 
 temp. Lee, 54. trouble to see that everything is 
 
 (z) Godolph. Pt. 2, c. 5, s. 3. justly divided," but not naming 
 
 Swinb. Pt. 4, s. 4, pi. 6. any executor, and beneath the sig- 
 
 (a) Brightman v. Keighley, Cro. nature of the testatrix, and oppo- 
 
 EUz. 43. However, in Godolphin, site the names of the attesting 
 
 Pt. 3, c. 3, s. 5, it is laid down witnesses were the words " execu- 
 
 that if the testator say, " If my tors and witnesses," the Court held 
 
 son, A. B., marry with G. D., let that there was no appointment of 
 
 him not be my executor," or "one executors. In the goods of Woods, 
 
 of my * executors,' " this would not L. R. 1 P. & D. 556. 
 
 W.E. — VOL, I. O
 
 194 
 
 Of the Appointment of Executors. [Pt. i. Bk. ill. 
 
 overseer : 
 distinction 
 between his 
 office and that 
 of executor. 
 
 An executor by 
 the tenor may 
 be admitted to 
 probate jointly 
 with an execu- 
 tor expressly 
 Dominated. 
 
 seer, Las no power to administer or intermeddle otherwise 
 than to counsel, persuade, and advise ; and if that fail to 
 remedy negligence or miscarrying in the executors, he may 
 complain to the Court, and his charges in so doing ought 
 to be allowed out of the testator's estate (/>). It is there- 
 fore material to inquire what words in a Will amount only 
 to an appointment as coadjutor, or overseer. If A. be 
 made an executor, and B. a coadjutor, without more, he is 
 not by this made a joint executor with A. (c). But if A. be 
 made executor, and the testator after, in his Will, expresseth 
 that B. shall administer also with him, and in aid of him, 
 here B. is an executor as well as A., and may prove the Will 
 alone as executor, if A. refuse {d). W^here an infant was made 
 an executor, and A. and B. overseers, with this condition, that 
 they should have the rule and disposition of his goods, and 
 payment and receipt of debts unto the full age of the infant, 
 by this they were held to be executors in the meantime {e). 
 
 Although when there is an express appointment of an. 
 executor, it is less probable that there should be an indirect 
 appointment to the same office, yet there is no objection 
 either in principle or practice, to admit an executor accord- 
 ing to the tenor to probate, jointly with an executor expressly 
 nominated. Thus in Powell v. Stratford {f), the testator's 
 
 (5) Wentw. Off. Ex. 2, 14th edi- 
 tion. Sir Thomas Ridley takes 
 occasion to -wish that overseers 
 might be made of more use ; al- 
 though he says, they be looked 
 upon only as candle-holders ; 
 having no power to do anything 
 but hold the candle, while the exe- 
 cutors tell the deceased's money : 
 Ridley, Pt. 4, c. 2. 4 Bum, E. 
 Law, 126, 8th edition. 
 
 (c) Bro. Executors, pi. 73. 
 Wentw. Off. Ex. 21, 14th edition. 
 Godolph. Pt. 2, c. 2, s. 4. The 
 words in the year-book, 21 H. VI. 
 6, are, " I will that A. and B. shall 
 
 be my executors, and also that I. 
 and K. be coadjutors of the same 
 A. and B. to distribute my goods." 
 
 {d) Bro. Executors, pi. 73. 
 Wentw. Off. Ex. 21, 14th edit. 
 Where a testator willed that A. 
 and B. should be his executors 
 and that I. and K. should be the 
 executors of A, and B. to dispose 
 of his goods, they are all execu- 
 tors : Dyer, 4, pi. 10, in marg. 
 
 (e) Wentw. Off. Ex. 21, 14th 
 edit. 
 
 (/) 3 Phil. 118. In the goods 
 of Brown, 2 P. D. 110.
 
 Ch, II.] By what ivords Executors may he ap2)ointcd. 195 
 
 wife was expressly named as executrix ; and Lord H. was 
 to assist her, but be was not called executor ; tbe Court said 
 be might be so according to the tenor. So in another 
 case (g), the deceased left a Will and four codicils ; and in 
 tbe Will named certain persons executors, and bis nephew 
 residuary legatee : in the last codicil, dated at a time 
 when his nephew was on the point of attaining twenty- 
 one years, tbe words were, " I appoint my nephew my 
 residuary legatee to discharge all lawful demands against 
 my Will and codicils signed of different dates : " It was 
 held that the nephew should be joined in the probate. 
 And in a subsequent case, where an executor was expressly 
 nominated for general purposes, another person was held to 
 be executor, according to tbe tenor, for limited purposes (//). 
 
 Again, in a case where a person bad been expressly A general ap- 
 
 n T • -I • TTT-11 • pointmeat by 
 
 appomted executor lor a limited purpose m a Will, it was implication 
 
 held, that he was appointed general executor by a codicil, by fi^*jted 011^^^^ 
 
 implication merely, without express words (?)• 
 
 In another case, where a person by his Will directed that Appointee of 
 
 the legatees should appoint two persons to execute bis testa- '^ 
 
 mentary bequests, probate was granted in the Prerogative 
 
 Court to the nominees as executors ; and on that occasion 
 
 the Deputy Registrar informed the Court that, in practice, 
 
 instances bad frequently occurred of granting probates to 
 
 persons nominated by those authorized by the testator so to 
 
 nominate (k). And it has been held, that the Wills Act does 
 
 not preclude this practice (l). 
 
 An executor may be appointed solely, or in conjunction Several exe- 
 cutors : 
 
 (g) Grant v. Leslie, 3 Phillim. tliat sucli a provision, as to the ap- 
 
 116. pointment of executors, is not very 
 
 (h) Lynch v. Bellew, 3 Phillim. unusual in that country. See in 
 
 424. the goods of Ryder, 2 Sw. & Tr. 
 
 (i) In the goods of Aird, 1 127, where the person authorised 
 
 Hagg, 336. to nominate had nominated him- 
 
 (fc) In the goods of Cringan, 1 self, and probate was granted to 
 
 Hagg. 548 : The testator in this him. 
 
 case died in Scotland ; and Sir (I) Infra, p. 197, note (s). 
 John Nicholl eaid he was informed 
 
 2
 
 196 
 
 Of the Ap2:)ointme7it of Executors. [Pt. i. Bk. iii. 
 
 and iu several 
 
 decrees. 
 
 Substituted 
 executors. 
 
 If instituted 
 executor 
 accepts office 
 and dies intes- 
 tate the sub- 
 stitutes are all 
 excluded : 
 
 with others : but in the latter case they are all considered in 
 law in the light of an individual person (/»). Likewise a 
 testator may appoint several persons as executors in several 
 degrees : as where he makes his wife executrix, but if she 
 will not or cannot be executrix, then he makes his son 
 executor ; and if his son will not or cannot be executor, then 
 he makes his brother, and so on {n). In which case the wife 
 is said to be instituted executor in the first degree, B. is said 
 to be substituted in the second degree, C. to be substituted in 
 the third degree, and so on (o). It must be observed, that 
 if an instituted executor once accepts the office, and after- 
 wards dies intestate, the substitutes, in what degree soever, 
 are all excluded ; because the condition of law, (if he will 
 not or cannot be executor,) was once accompHshed by such 
 
 (??(,) Toller, 37. See ^jos^, Pt. iii. 
 Bk. I. Ch. II. 
 
 (n) Swinb. Pt. 4, s. 19, pi. 1. 
 Godolph. Pt. 2, c. 4, s. 1. So where 
 a testator appointed Lis son sole 
 executor, but in the event of his 
 going abroad, or being or remain- 
 ing abroad for upwards of two 
 calendar months, then he ap- 
 pointed B. his executor, and the 
 son after the death of the testator 
 went abroad without taking pro- 
 bate and there remained, Sir J. P. 
 Wilde granted probate to B., but 
 reserved power to the son to prove 
 the Will : In the goods of Lane, 33 
 L. J., P. M. & A. 185. 
 
 (o) The substituted executor 
 cannot propound the Will, till the 
 person first named executor has 
 been cited to accept or refuse the 
 office : Smith v. Crofts, 2 Cas. 
 temp. Lee, 557. But where a tes- 
 tatrix appointed her nephew 
 Charles her executor, " but in 
 case he shall happen at the time 
 of my decease to be abroad, or 
 from any other cause incapable of 
 
 acting as such executor, then and 
 in such case I appoint my nephew 
 Eardley executor, to act only 
 during such time as the said 
 Charles shall be resident abroad, 
 or otherwise incapable of acting," 
 and the nephew Charles died in 
 the lifetime of the testatrix, probate 
 was granted by Sir John Dodson to 
 the nephew Eardley, as executor : 
 In the goods of Wilmot, 2 Robert. 
 579. In the goods of Langford, L. 
 E. 1 P. & D. 458. In that case an 
 appointment of A. as executor, and 
 "in case of his absence on foreign 
 duty," of B. as executrix, was 
 held to be an appointment of B. as 
 substituted executrix in the event 
 of A.'s absence from the country 
 when the necessity for proving 
 the Will arose ; A. was in Eng- 
 land at the time of the testator's 
 death, but was absent on foreign 
 service in her Majesty's navy when 
 the application for probate was 
 made, and was likely to be absent 
 for some years ; probate was 
 granted to B.
 
 Cli. II.] By what ivoixls Executors may he appointed. 197 
 
 acceptance of the instituted executor (p). But where a 
 testator appoints an executor, and provides that in case of 
 his death, another should be substituted ; on the death of unless testator 
 the original executor, although he has proved the Will, the expressly pro- 
 executor so substituted may be admitted to the office, if it ^^' ^^" 
 appear to have been the testator's intention that the sub- 
 stitution should take place on the death of the original 
 executor, whether happening in the testator's lifetime, or 
 afterwards (q). 
 
 Where a testatrix appointed A. and B. executors of her last Several execu- 
 tors with power 
 Will, and "in case of the death of either of them," em- to survivor to 
 
 powered the survivor to appoint another, "so that there one?"^ 
 
 should continue to be two executors : " Upon the death of A., 
 
 B. appointed C. executor to act with him : C. did not take 
 
 probate during the lifetime of B. : And it was held by Sir H. 
 
 Jenner Fust, that probate might pass to C, and that he 
 
 might appoint another executor to act with him (?•). So 
 
 where a testator bequeathed his estate in trust to F. and G., 
 
 who were nominated executors, with directions conjointly 
 
 with the testator's wife to appoint a third person as trustee 
 
 and executor, it was held by Sir H. Jenner Fust that, though 
 
 there was no probability of agreement between F. and G., and 
 
 the testator's wife, in the choice of such third person, the 
 
 appointment of executors was not thereby void, but that F. 
 
 and G. were entitled to probate, with a power reserved for 
 
 the third person when appointed (s) . 
 
 (p) Swiiib. Pt. 4, s. 19, pi. 10. (r) In the goods of Deichman, 3 
 
 Godolph. Pt. 2, c. 4, s. 2. Curt. 123. 
 
 (<l) In the goods of Lighten, 1 (s) Jackson v. Paulet, 2 Robert. 
 
 Hagg. 235. In the goods of John- 344. It was objected that, under 
 
 son, 1 Sw. & Tr. 17. In the goods the Wills Act, probate could be 
 
 of Foster, L. R. 2 P. & D. 304. So decreed only to a person named in 
 
 he may be admitted if the intention a duly executed testamentary paper. 
 
 is that the substituted executor But the Court said, the case was 
 
 shall be executor, if the original not like one where a testator, in 
 
 executor cannot or will not act, and his Will, reserves to himself a 
 
 the latter dies in the testator's power to deal hereafter with his 
 
 lifetime : In the goods of Betts, 30 Will by writings not duly exc- 
 
 L. J., P. M. & A. 167. cuted. (See ante, p. 89.)
 
 198 
 
 Appointment 
 of executors, 
 in a Will re- 
 voked by codi- 
 cil naming a 
 "sole execu- 
 tor : " 
 
 appointment 
 bad for uncer- 
 tainty. 
 
 Of the Ajypointment of Executors. [Pt. i. Bk. iii. 
 
 Where the testator in his Will appointed two persons his 
 executors, and in a codicil named his wife " sole executrix 
 of this my Wiil," the Court held that the appointment of 
 executors in the Will was revoked {t). 
 
 An appointment of "A. as my executor with any two of 
 my sons," was held had, as to the sons, for uncertainty {u). 
 
 it) In tlie goods of Lowe, 3 Sw. 
 & Tr. 478. But a reappointment 
 in a subsequent Will of one of the 
 executors named in a former Will 
 witli a new co-executor is no revo- 
 cation of the appointment of exe- 
 cutors in the first Will : In the 
 goods of Lease, 31 L. .J., P. M. & A. 
 169. Where, however, in a similar 
 case, the word " sole " was used in 
 a subsequent Will, the first ap- 
 pointment was held to be revoked. 
 In the goods of Baily, L. R. 1 P. & 
 D. 628. 
 
 {n) In the goods of Baylis, 2 Sw. 
 
 & T. 613. Where a testator, having 
 three sisters living wlien he made 
 his Will, appointed " one of my 
 sisters " sole executrix, and two of 
 the sisters died in his lifetime. 
 Sir J. Hannen held that the ap- 
 pointment was void from uncer- 
 tainty. In the goods of Blackwell, 
 2 P. D. 72. As to the admis- 
 sion of parol evidence to correct an 
 imperfect description of the exe- 
 cutor contained in a Will, see In 
 the goods of De Rosaz, 2 P. D. 
 66. 
 
 I
 
 199 
 
 CHAPTER THE THIRD. 
 
 IN WHAT WAYS THE APPOINTMENT OF EXECUTOR MAY BE 
 QUALIFIED. 
 
 JLHE appointment of an executor may be either absolute Appointment 
 or qualified. It may be absolute, when be is constituted , , 
 
 \ , , . . absolute: 
 
 certainly, immediately, and without any restriction in regard qualified, 
 to the testator's effects, or limitation in point of time (a). 
 It may be qualified, by limitations as to the time or place 
 wherein, or the subject-matter whereon, the office is to be 
 exercised : or the creation of the office may be conditional. 
 
 It may be qualified by limitations in point of time, inas- I. Limitations 
 much as the time may be limited when the person appointed t^me^^ 
 shall begin, or when he shall cease, to be executor. Thus if as to when the 
 one appoint a man to be his executor at a certain time, as te<'in to exe- 
 at the expiration of five years after his death (h), or at an ^"*® ^'^ °*'^® • 
 uncertain time, as upon the death or marriage of his son (c), 
 this is a good appointment. Where the deceased appointed 
 two executors, and, in case of the death of either of them, 
 appointed two others to be executors in their stead ; on the 
 death of the original executor who had alone proved the Will, 
 the substituted executors were admitted to the office (d). 
 So if a man appoints his son to be executor when he shall 
 <;ome to full age (e), such qualified appointment is good : and 
 in the meantime he has no executor. Again, the testator 
 
 (a) Toller, 36. was exhibited from the original 
 
 (h) Swinlj, Pt. 4, s. 17, pi. 1. executor who had not proved. See 
 
 Wentw. Off. Ex. 22, 14th edition. also Accord. In the goods of John- 
 
 (c) Swinb. Pt. 4, s. 17, pi. 4. son, 1 Sw. & Tr. 17. 
 
 {d) In the goods of Lighten, (e) Wentw. Off". Ex. 22, 23, 14th 
 
 1 Hagg. 235 : A proxy of consent edition.
 
 200 
 
 Appointment of Executors. [Pt. i. Bk. iii. 
 
 as to when he 
 shall cease : 
 
 in these cases 
 an adminis- 
 trator may be 
 appointed till 
 there be an 
 executor, or 
 ;ifter the 
 executorship 
 is ended. 
 
 2. Limitations 
 in point of 
 place. 
 
 may appoint the executor of A. to be his executor : and 
 then if he die before A. he has no executor till A. die (/). 
 So a man may make A. and B. his executors, and appoint 
 that A. shall not intermeddle during the life of B., and by 
 this they shall be executors successively, and not jointly {g). 
 Likewise the testator may appoint a person to be his executor 
 for a particular period of time only, as during five years next 
 after his decease {h), or during the minority of his son, or the 
 widowhood of his wife (?), or until the death or marriage of 
 his son (/t). In a case (?) where a widow was appointed 
 executrix and residuary legatee for life, with remainder, as 
 to the residue, to the nieces of the testator, and by a codicil 
 it was provided, that, in case she thought proper to marry 
 again, she and the nieces should agree on proper persons to 
 be trustees, to whom she was directed to assign all the real 
 and personal estate, in trust for the uses of the Will, but so 
 as not to be liable to the debts, or subject to the power, of 
 her second husband, it was held that her executorship ex- 
 pired on her second marriage. 
 
 In these cases, if the testator does not appoint a person to 
 act before the period limited for the commencement of the 
 office on the one hand, or after the period limited for its 
 expiration on the other, the Court of Probate may commit 
 administration to another person, until there be an executor, 
 or after the executorship is ended {m). 
 
 In like manner, the appointment may be limited in point 
 of place : as thus, the testator may make A. his executor for 
 his goods in Cornwall, B. for those in Devon, and C. for those 
 
 (/) Wentw. Off. Ex. 22, 23, 
 14tli edit. Godolph. Pt. 2, c. 2, 
 s. 4. 
 
 ((/) Wentw. Off. Ex. 31, 14th 
 edition. Bro. Executors, 155. 
 
 (/i) Swinb. Pt. 4, s. 17, pi. 1. 
 
 (i) Wentw. Off. Ex. 29, 14tli 
 edition. Godolph. Pt. 2, c. 2, 
 s. 3. 
 
 {I) Swiub. Pt. 4, s. 17, pi. 4. 
 
 (/) Bond r. Faikney, 2 Gas. temp. 
 Lee, 371. 
 
 (m) Swinb. Pt. 4, s. 17, pi. 2. 
 Plowd. 279, 281 : This will be an 
 administration cum testamento an- 
 nexo, and the person entitled to it 
 will be discovered by referring to 
 the rules respecting that species of 
 administration : See post, Pt. i. 
 Bk. V. Ch. III. § I.
 
 Ch. III.] hi what ivays it may he" qualified. 
 
 201 
 
 in Somerset {n) : or he may make different executors for his 
 goods in different dioceses, or difterent provinces (o) : or, 
 which seems more rational and expedient, he may so divide 
 the duty when his property is in various countries {j>). 
 
 Again, the power of an executor may be Hmited as to the 3, Limitations 
 subject-matter upon which it is to be exercised. Thus the j'ect^matter ^' 
 testator may make A. his executor for his plate and house- 
 hold stuff, B. for his sheep and cattle, C. for his leases and 
 estates by extent, and D. for his debts due to him {q). So a 
 person may be made executor for one particular thing only, 
 as touching such a statute or bond, and no more (/'). And 
 
 (71) Swinb. Pt. 4, s. 18, pi. 1. 
 Godolph. Pt. 2, c. 2, s. 3. Wentw. 
 Off. Ex. 29, 14tli edition. Spratt 
 V. Harris, 4 Hagg. 408, 409. 
 
 (0) Swinb. Pt. 4, s. 18, pi. 4. 
 
 {fj Spratt V. Harris, Toller, 36. 
 4 Hagg. 408, 489. Where a testa- 
 tor appointed a man who was 
 resident in Portugal, to be his exe- 
 cutor "in Portugal," it was held 
 that the words " in Portugal " were 
 equivalent to " for Portugal," and 
 that such executor was not entitled 
 to probate in this country : Velho 
 V. Leite, 3 Sw. & Tr. 456. Again, 
 Where W. made a Will in Eng- 
 land in 1861, and appointed B. and 
 C. executors thereof, and in May, 
 1863, being in India, he made a 
 codicil, and on the 9th of June 
 executed a paper, whereby he 
 appointed E. & F. "my execu- 
 tors in this country : " The Court 
 held that the context of the paper, 
 giving the testator's reasons for the 
 appointment of E. and F., showed 
 that he did not mean them to have 
 any power over his property in 
 England, and granted probate to 
 B. and C. without reserving power 
 to E. and F. ; In the goods of 
 Wallich, 3 Sw. & Tr. 423. If 
 
 power had been reserved of making 
 a similar grant to them, this, it 
 would seem, would not affect the 
 validity of the probate. In the 
 goods of Pulman, 3 Sw. & Tr. 269. 
 But where a testator executed two 
 Wills, one disposing of property in 
 Tasmania, and appointing execu- 
 tors resident in Tasmania ; the 
 other disposing of property in Eng- 
 land, and appointing three execu- 
 tors distinct from those appointed in 
 the other Will, the Court granted 
 probate to issue of both Wills as 
 together containing the Will of the 
 testator. In the goods of Plarris, 
 L. R. 2 P. & D. 83. 
 
 {q) Dyer, 4, a. AVentw. Off. Ex. 
 29, 14th edition. Godolph. Pt. 2, 
 c. 3, pi. 2, 3. 
 
 (»•) Wentw. Off. Ex. 29, 14th 
 edition. Davios v. Queen's Proc- 
 tor, 2 Robert. 413. But when the 
 testator said, " I make my wife my 
 full and whole executrix of all my 
 cattle, corn, and movable goods," 
 and said nothing of what should 
 be done with the residue of his es- 
 tate, as leases and debts, Jones and 
 Croke, Justices, held that she was 
 sole and absolute executrix for the 
 whole estate, as well leases and
 
 ^^2 A2:>pointment of Executors. [Pt. i. Bk. in. 
 
 the same Will may contain the appointment of one executor 
 
 for general, and another for limited purposes (-s). But 
 
 Separate exe- although a testator may thus appoint separate executors of 
 
 cutorsmayall ,. . . 
 
 be sued as one distinct parts of his property, and may divide their authority, 
 yet quoad creditors, they are all executors, and as one execu- 
 tor, and may be sued as one executor (/). 
 
 Lastly, the appointment may be conditional : and the con- 
 dition may be either precedent or subsequent {ii). Thus it 
 may be, that he give security to pay the legacies, and in 
 general to perform the Will before he acts as executor {x). 
 In Alice Francis' case {y), the testator willed, that if his wife 
 suffered J. S. to enjoy Blackacre for three years, then she 
 should be his executrix ; but if she disturbed J. S., then he 
 made his son executor : It was held in C, B. by all the 
 Justices (The Lord Anderson at first dissentiente) that she 
 was executrix presently ; for this should not be construed a 
 condition precedent, but as a condition to abridge her power 
 to be executrix, if she perform it not. 
 
 4. The ap- 
 pointment 
 may be con- 
 ditional. 
 
 debts as other things : But Berke- 
 ley, Justice, thought that she was 
 a special executrix for the things 
 named, and not a general execu- 
 trix : Rose v. Bartlett, Cro. Car. 
 293. Where a testator by his Will 
 gave several specific legacies, but 
 did not dispose of the residue of 
 his personal estate, and appointed 
 his daughter executrix of all pro- 
 perty not named in his Will, the 
 Court refused to grant probate of 
 the Will to the daughter as execu- 
 trix thereof. In the goods of 
 Wakeham, L. E. 2 P. & D. 395. 
 
 (s) Lynch v. Bellew, 3 Phillim. 
 424. 
 
 (i) Rose V. Bartlett, Cro. Car. 
 293. 
 
 (u) Wentw. Off. Ex. 23, 14th 
 edition. Godolph. Pt. 2, c. 2, s. 1. 
 Should the executorship be deter- 
 mined by a breach of the condition, 
 
 yet all acts done by the executor 
 in pursuance of his office, before 
 such condition broken, are good : 
 Godolph. Pt. 2, c. 2,s. 1. See^jos^, 
 Pt. I. Bk. VI. Ch. III. 
 
 {x) Godolph. Pt. 2, c. 2, s. 1. 
 Wentw. Off. Ex. 28, 14th edition. 
 Where A. made B. and C. execu- 
 tors, and added, " I will that C. 
 shall pay my other executor all 
 sucli debts as he owes me, before 
 he meddle with anything of this 
 my Will, or take any advantage of 
 this my Will for the discharge of 
 the same debts, for that I have 
 made him one of my executors," it 
 was held that C. could not admin- 
 ister, or be executor, before he 
 paid the debts : Stapleton v. True- 
 lock, 3 Leon. 2, pi. 6. 
 
 {y) Dyer, 4, pi. 8, in margin. 
 Wentw. Off. Ex. 28, 14th edition.
 
 Ch. III.] In wliat ways it rttay he qualified. 203 
 
 In a case where an executor was appointed, provided he 
 proved the Will within three calendar months next after the 
 death of the deceased, it was held, that, in computing the 
 time, the day of the death was to be excluded (s). But if he 
 fails to prove the Will within three months, his appointment 
 is void (at all events if there be substituted executors) , though 
 the failure were through the inadvertence of his solicitor, and 
 though he has acted in the execution of the trust of the 
 Will (a). 
 
 It is not thought expedient to go further into the law of 
 conditional appointments of executors, which the reader will 
 find fully discussed in Swinburne (h) and Godolphin (c). 
 The parts of the subjects which seem necessary to be intro- 
 duced into this Treatise will be found subsequently, when 
 conditional legacies are considered {d). 
 
 [z) In the goods of Wilmot, 1 ante, p. 196, note (ri). 
 
 Curt. 1. (6) Pt. 4, s. 5—16. 
 
 (o) In the goods of Day, 7 Notes (c) Pt. 1, c. 13, 14. Pt. 2, c. 2. 
 
 of Cas. 553. See also In the goods {d) Post, Pt. iii. Bk. iii. Ch. ii. 
 
 of Lane, 33 L. J., P. M. & A. 185, § vi.
 
 204 
 
 CHAPTER THE FOURTH. 
 
 1. Where 
 
 there is a sole 
 
 executor, his 
 
 executor repre- testator (h). 
 
 sents the first 
 
 testator : 
 
 but his admin- 
 istrator does 
 not : 
 
 IN WHAT CASES THE APPOINTED EXECUTOR MAY TRANSMIT 
 HIS APPOINTMENT. 
 
 Although the executor cannot assign the executor- 
 ship (a), yet the interest vested in him by the Will of the 
 deceased may, generally speaking, be continued and kept 
 alive by the "Will of the executor ; so that if there be a sole 
 executor of A., the executor of such executor is, to all intents 
 and purposes, the executor and representative of the first 
 But if the first executor dies intestate, then his 
 administrator is not such a representative, but an adminis- 
 trator de bonis non of the original testator must be appointed 
 by the Court of Probate (c) ; for the power of an executor is 
 founded upon the special confidence and actual appointment of 
 the deceased ; and such executor is therefore allowed to trans- 
 mit that power to another, in whom he has equal confidence ; 
 and so long as the chain of representation is unbroken by 
 any intestacy, the ultimate executor is the representative of 
 every preceding testator : But the administrator of the exe- 
 
 (a) Bedell v. Constable, Vaugh. 
 182. 
 
 (6) Com. Dig. tit. Administra- 
 tion (G) tit. Administration (B. 6). 
 Touchst. 464. Stat. 25 Edw. 
 III. .St. 5, c. 5. Wentw. Off. Exe- 
 cutor, 46], 14th edition. 2 Bl. 
 Comm. 506. The rule is the same, 
 though the original probate was a 
 limited one : In the goods of Beer, 
 2 Robert. 349. See post, Ft. iii. Bk. 
 I. Ch. III. as to whether a power 
 given to an executor is transmis- 
 sible to his executor. 
 
 (c) Bro. Abr. Administrator, 
 
 pi. 7. Com. Dig. Administrator 
 (B. 6). 2 Bl. Comm. 506. See In 
 the goods of Martin, 3 Sw. & Tr. 
 1. In the goods of Bridger, 4 P. 
 D. 77. Thus it was held that the 
 aJministratrix of an executrix 
 could not sue for the double value 
 of lands held over, after notice to 
 quit under a demise from the tes- 
 tator, contrary to stat. 4 Geo. II. 
 c. 28, without taking out adminis- 
 tration de bonis non, even though 
 the tenant had attorned to her : 
 Tingrey v. Brown, 1 Bos. & Pull. 
 310.
 
 covert execii- 
 
 Cli. IV.] TransmissihiUty of the Office of Executor. 205 
 
 cutor is merely the officer of the Court of Probate and lias no 
 privity or relation to the original testator, being only com- 
 missioned to administer the effects of the intestate executor, 
 and not of the original testator {d) . 
 
 If the first executor should die, without having proved the ^^^ executor of 
 Will (e), the executorship is not transmissible to his executor, does not repre- 
 but is wholly determined, and an administrator cum testamento testator unLs 
 annexo must be appointed (/). Hence it follows that if the t^e first execu- 
 
 tor proves the 
 
 person appomted executor dies before the testator there must Will. 
 be administration cum testamento annexo (ff). 
 
 A married woman, being executrix, might, even before the 
 Married Women's Property Act, continue the chain of represen- 
 tation, by making her own executor (g). 
 
 In Barr v. Carter (h), Elizabeth Chapman, a married Transmission 
 
 . of executorship 
 
 woman, made a Will, merely executing a power given her by a feme 
 by the marriage settlement, but she also went on to appoint l°[^^ 
 Elizabeth Carter sole executrix of that her Will : She died 
 in the lifetime of her husband ; and the Ecclesiastical Court 
 granted probate of this Will in the general form : the Testa- 
 trix was herself the executrix of a former husband, Thomas 
 Hawley : And it was held that the general probate of her 
 
 {d) 2 Bl. Comm. 506. How- Not. Cas. 117, and a grant to the 
 
 ever, the administrator durante attorney of an executor does not 
 
 minore (state of the executor of an break the chain of representation, 
 
 executor is the representative of In the goods of Murguia, 9 P. D. 
 
 the first testator ; for such an ad- 236. 
 
 ministrator is loco Executoris: (/) Isted v. Stanley, Dyer, 
 
 Anon. 1 Freem. 287. Contra, 372 a. Hayton v. Woife, Cro. 
 
 Limmer v. Every, Cro. Eliz. 211, Jac. 614. Wentw. Off. Ex. 82, 
 
 as cited by C. B. Gilbert, in Bac. 14th edit. Day v. Chatfield, 1 
 
 Abr. Executors (B. 8). But see Vern. 200. AVankford v. Wank- 
 
 Mr. Smirke's note, in his valuable ford, 1 Salk. 308. Anon. 3 Salk. 
 
 edition of Freeman. 21. 
 
 (e) But if administration cum (ff) Brown v. Poyns, Sty. 147. 
 
 testamento annexo has been granted Pullen v. Sergeant, 2 Chan. Rep. 
 
 \inder his letter of attorney for his 300. 
 
 use or benefit to another, it is the (g) Birkett v. Vandercom, 3 
 
 same thing as if he had proved the Hagg. 750, ante, p. 47. 
 
 Will himself: In the goods of (/i) 2 Cox, 429. 
 Bayard, 1 Robert. 769. S. C. 7
 
 206 Trausmlssibility of the Office of Executor. [Pt.i.Bk.iii, 
 
 Will transmitted the representation to Elizabeth Carter, so 
 
 as to make lier the personal representative of the first testator 
 
 Thomas Hawley (i) . 
 
 If there are If there are several executors appointed, and one of them 
 
 tors.'^no^inTe^' ^ies, leaving one or more of his co-executors living, no 
 
 rest is trans- interest in the executorship is transmissible to his own 
 
 missible, 
 
 except to the executor, but the whole representation survives, and will be 
 surrivor. transmitted ultimately to the executor of the surviving exe- 
 
 cutor, unless he dies intestate. Thus, if A. makes B. and C. 
 executors, then B. makes J. S. executor and dies, and after- 
 wards C. dies intestate, the executor of B. shall not be exe- 
 cutor of A., because the executorship wholly and solely 
 vested in C. by the survivorship ; and so administration de 
 bonis non shall be committed (j). 
 
 The law was formerly the same where there were several 
 executors, and one alone proved the Will, and the rest re- 
 nounced before the Ordinary ; there, upon the death of him 
 who proved, no interest was transmitted to his executor, if 
 any of those who refused were surviving (A). But the law 
 is altered in this respect by the Court of Probate Act, 1857, 
 
 8.79(0. 
 
 The conditions under which the chain of executorship is 
 broken in law have been thus tersely enumerated in a recent 
 edition of a Text-book on Probate Practice (m) : — 
 
 1. When the immediate sole acting executor dies intestate 
 or testate without appointing an executor. 
 
 2. When the survivor of the immediate acting executors 
 dies intestate. 
 
 (i) But a limited probate will that in suck case, the representa- 
 
 not continue the chain of repre- tion would be unbroken, 
 
 sentation : In the goods of Bayne, (j) Wentw. Off. Ex. 215, 14th 
 
 1 Sw. & Tr. 132. The practice of edition. In the goods of Smith, 3 
 
 granting limited probate in the Curt. 31. 
 
 case of Wills of married women (k) Arnold v. Blencowe, 1 Cox, 
 
 has since the Married Women's 426. 
 
 Property Act, 1882, been altered {1} See post, ]^. 233. 
 
 and probate in the general form (m) Tristram & Coote's Probate 
 
 will now be granted (see ante, p. Practice, 10th ed. p. 173. 
 53, note (a) ), and it would seem,
 
 Ch. IV.] Transmissihility of the Office of Executor. 207 
 
 3. When the remote sole acting executor to whom an 
 executorship has been transmitted downwards, per catenam, 
 dies intestate. 
 
 4. "WTaen the survivor of the remote acting executors dies 
 intestate. 
 
 5. When the remote executor or executors renounce the 
 probate of their own testator's Will or have been cited and do 
 not appear. 
 
 6. When the remote executor or executors die without 
 having proved their own testator's Will. 
 
 7. When of two or more executors who have died after 
 probate taken by them, it is impossible to show which survived 
 the other or others. 
 
 8. When one of the executors, having renounced before 
 1 Jan., 1858, has survived the other executor or executors.
 
 208 
 
 CHAPTER THE FIFTH. 
 
 An executor 
 de son tort. 
 
 "VThat acts con- 
 stitute an exe- 
 cutor dc son 
 toH. 
 
 OF AN EXECUTOR DE SOX TORT. 
 
 JtlAVINGr thus considered the appointment of executors 
 by legal means, it remains to treat of a class who are in some 
 sort regarded as executors, but who assume the office by their 
 own intrusion and interference. 
 
 If one, who is neither executor nor administrator, inter- 
 meddles with the goods of the deceased, or does any other act 
 characteristic of the office of executor, he thereby makes him- 
 self what is called in the law, an executor of his own wrong, 
 or more usually, an executor de son tort (a) . 
 
 A very slight circumstance of intermeddling with the goods 
 of the deceased will make a person executor de son tort. 
 Thus it is said in Dyer, in margine (b), that milking the 
 cows, even by the widow of the deceased, or taking a dog, 
 Avill constitute an executorship de son tort. So in one 
 case the taking a Bible, and in another a bedstead (c), were 
 held sufficient, inasmuch as they were the indicia of the 
 person so interfering being the representative of the de- 
 ceased (d). So if a man kills the cattle (e), or uses or gives 
 away, or sells any of the goods (/), or if he takes the goods 
 
 {a) The definition of an execu- 
 tor de son tort, by S-ninburne, Go- 
 dolpbin, and Wentworth, is in the 
 same words, mz., " He who takes 
 iipon himself the office of executor 
 by intrusion, not being so consti- 
 tuted by the deceased, nor, for 
 want of such constitution, substi- 
 tuted by the [Ecclesiastical] Court 
 to administer;'" Swinb. Pt. 4, s. 23, 
 pi. 1. Godolph. Pt. 2, c. 8, s. 1. 
 
 Wentw. Oflf. Ex, c. 14, p. 320, 14th 
 edition. But the term is, in the 
 older books, sometimes applied to 
 a lawful executor, who mal-admin- 
 isters ; as by the Lord Dyer, in 
 Stokes V. Porter, Dyer, 167, a. 
 
 (b) P. 166, b. 
 
 (c) Eobin's case, Noy, 69. 
 
 (d) Toller, 38. 
 
 (e) Godolph. Pt. 2, c. 8, e. 4. 
 (/) Read's case, 5 Co. 33, h.
 
 Ch. v.] Of an Executor de son tort. 209 
 
 to satisfy his own debt or legacy (g) : or if the wife of the 
 deceased takes more apparel than she is entitled to, she will 
 become executrix de son tort (h). So there may be a tort 
 executor of a term for years : as where a man enters upon 
 the land leased to the deceased, and takes possession, claim- 
 ing the particular estate (i) : though with respect to a term 
 of years in reversion there can be no executorship of this 
 nature, because it is incapable of entry (A:). And if he that 
 has from the Ordinary letters ad colligendum, sell or dispose 
 of any goods, though otherwise subject to perishing, it makes 
 him executor of his own wrong ; even though, by the letters 
 ad colligendum, he be warranted thereunto ; for the judge 
 himself may not do so [l). 
 
 Again, if a man demands the debts of the deceased, or 
 makes acquittances for them, or receives them {m), he will 
 become executor de son tort. In the case of Padget v. 
 Priest (n), it was held, that if a man's servant sells the 
 goods of the deceased, as well after his death as before, by 
 the directions of the deceased given in his lifetime, and pays 
 the money, arising therefrom, into the hands of his master, 
 
 Padget V. Priest, 2 Term Eep. 97. Godolpb. Pt. 2, c. 8, s. 1. Swinb, 
 
 Godolph. Pt. 2, c. 1, s. 1. Swinb. Pt. 4, s. 23. In what cases the 
 
 Pt. 4, s. 23 : So if he gives them mere taking possession of the goods 
 
 away to the poor : Dyer, 166, h, in of the deceased will or will not 
 
 marg. create an executorship de son tort, 
 
 {cj) Godolph. Pt. 2, c. 8, s. 1. see Read's case, 5 Co. 33, h. 1 Roll. 
 
 Swinb. Pt. 4, s. 23. Ab. 918, pi. 5. Wentw. Off. Ex, 
 
 {h) "Wentw. Off. Ex. c. 14, p. 327, 14th edition. Swinb. Pt. 6, 
 
 325, 14th edition. Godolph. Pt. 2, s. 22, pi. 2. Serle v. Waterworth, 
 
 c. 8, s, 1. Swinb. Pt. 4, s. 23. 4 M. & W. 9, post, p. 213. Some 
 
 {i) Godolph. Pt. 2, c. 8, s. 5. possession is colourable, and still 
 And see 2 Prest. on Convey, p. 319 none in law to charge, &c., as in 
 et seq. Where the entry of the the case of an overseer or super- 
 wrongdoer is general, he is a dis- visor (see ante, pp. 193, 194), or 
 seisor of the fee-simple, and not one who is made executor by a 
 an executor de son tort : Ibid. See Will, which is afterwards dis- 
 also Bac. Abr. Executors (B. 3), 1. proved by the proving of one 
 
 (k) Kenrick v. Burgess, Moor. later ; Dyer, 166, b. 
 
 126. (m) Godolph. Pt. 2, c. 8, s. 1. 
 
 (0 Anon. Dyer, 256, a. Wentw. Swinb. Pt. 4, s. 23. 
 
 Off. Ex. c. 14, p. 324, 14th edition. (n) 2 T. R. 97. 
 
 W.E. — VOL. I. P
 
 210 Of an Executor de son tort. [Ft. i. Bk. iii. 
 
 this makes the master, as well as the servant, executor de son 
 tort. And it seems to he estahlished that the agent of an 
 executor de son tort collecting the assets, with a knowledge 
 that theyhelong to the testator's estate, and that his principal 
 is not the legal personal representative, may himself be treated 
 as an executor de son tort (o). 
 
 So if a man jwi/.s the debts of the deceased, or the fees 
 about proving his Will, this will constitute him executor de 
 son tort ij)) ; but it is otherwise if he pays the debts or fees 
 with his own money (q). 
 
 Living in the house, and carrying on the trade of the 
 deceased (a victualler), was held a sufficient intermeddling 
 to make the defendant executor de son tort, notwithstanding 
 his wife (the daughter of the deceased) proved the Will after 
 the action was commenced, and she and her husband were 
 acting together, and were in the house before the death of 
 the testator (r). 
 
 Likewise, if a man sue as executor, or if an action be 
 brought against him as executor, and he pleads in that 
 character, this will make him executor de son tort (s). 
 
 With respect to fraud, by the statute 43 Eliz, c. 8, after 
 reciting that "forasmuch as it is often put in ure to the 
 defrauding of creditors, that such persons as are to have the 
 administration of the goods of others dying intestate com- 
 mitted unto them, if they require it, will not accept the 
 same, but suffer or procure the administration to be granted 
 to some stranger of mean estate, and not of kin to the 
 intestate, from whom themselves or others by their means 
 do take deeds of gifts and authorities by letter of attorney, 
 whereby they obtain the estate of the intestate into their 
 hands, and yet stand not subject to pay any debts owing 
 by the same intestate, and so the creditors for lack of know- 
 
 (o) Sharland v. Mildon, 5 Hare, 14tli edition. 
 
 468. (r) Hooper v. Summersett, 
 
 (p) Godolph. Pt. 2, c. 8, s. 1. Wiglitw. 16. 
 
 Swinb. Pt. 6, s. 22. (s) Godolph. Pt. 2, c. 8, s. 1. 
 
 (q) Ibid. "Went. Off. Ex. 326, Com. Dig. Administrator (C. 1).
 
 Ch, v.] Of an Executor de son tort. 211 
 
 ledge of the place of habitation of the administrator, cannot 
 arrest him nor sue him ; and if they fortune to find him 
 €ut, yet for lack of ability in him to satisfy of his own goods 
 the value of that he hath conveyed away of the intestate's 
 goods, or released of his debts by way of wasting, the creditors 
 cannot have or recover their just and due debts," it is enacted 
 ** that every person and persons that hereafter shall obtain, 
 receive, and have any goods or debts of any person dying 
 intestate, or a release or other discharge of any debt or duty 
 that belonged to the intestate upon any fraud as is aforesaid, 
 ■or without such valuable consideration as shall amount to the 
 value of the same goods or debts, or near thereabouts, 
 (except it be in or towards satisfaction of some just and 
 principal debt of the value of the same goods or debts to 
 him owing by the intestate, at the time of his decease,) shall 
 be charged and chargeable as executor of his own wrong (f) ; 
 and so far only as such goods and debts coming to his 
 hands, or whereof he is released or discharged by such 
 administrator will satisfy, deducting nevertheless to and for 
 himself allowance of all just, due, and principal debts upon 
 good consideration, without fraud, owing to him by the 
 intestate at the time of his decease, and of all other payments 
 made by him which lawful executors or administrators may 
 and ought to have and pay by the laws and statutes of this 
 realm." 
 
 So, if in his lifetime the deceased made a deed of gift, or 
 bill of sale, of all his goods and chattels to another, in fraud 
 ■of his creditors, and the donee after the death of the donor 
 disposes of these goods and chattels, by these means he shall 
 be executor in his own wrong (u). 
 
 When the Will is proved, or administration granted, and 
 another person then intermeddles with the goods, this shall 
 
 (0 See Godolph. Pt. 2, c. 8, s. 2. 1 Sid. 31, pi. 9. 1 Roll. Abr. 549. 
 Swinb. Pt. 4, s. 23. Kitchen v. (C. 1), pi. 3. Stamford's case, 2 
 Dixon, Goldsb. 116, jd. 12. 2 H. Leon. 223. Hawes v. Leader, Cro. 
 Bl. 26, n. (6). Jac. 271. Edwarda v. Harben, 2 
 
 (u) Godolph. Pt. 2, c. 8, 8. 1. T. R. 587. 
 
 p 2
 
 212 
 
 Of an Executor de son tort. [Pt. i. Bk. iii. 
 
 What acts do 
 not make a 
 man executor 
 de son tort. 
 
 not make him executor de son tort, by construction of law, 
 because there is another personal representative of right 
 against whom the creditors can bring their actions ; and 
 such a wrongful intermeddler is liable to be sued as a 
 trespasser (x). But, though there be a lawful executor or 
 administrator, yet if any other take the goods claiming them 
 as executor, or pays debts or legacies, or intermeddles as 
 executor, in this case, because of such express claiming to be 
 executor, he may be charged as executor of his own wrong, 
 although there were another executor of right (?/). 
 
 But there are many acts which a stranger may perform 
 without incurring the hazard of being involved in such an 
 executorship ; such as locking up the goods for preserva- 
 tion {z), directing the funeral, in a manner suitable to the 
 estate which is left, and defraying the expenses of such 
 funeral himself, or out of the deceased's effects (a), making 
 
 (;c) Anonymous, 1 Salk. 313. 
 Godolph. Pt. 2, c. 8, s. 3 : but one 
 who gets the goods of the testa- 
 tor into his hands may be sued as 
 executor dc son tort, although after- 
 wards and before the writ brought, 
 administration be legally granted 
 to another : Ihid. Kellow v. West- 
 combe, 1 Freem. 122. 
 
 {y) Read's case, 5 Co. 34, a. 
 "Went. Off. Ex. 326, 14th edition. 
 Godolph. Pt. 2, s. 1. Swinb. Pt. 4, 
 s. 23. Com, Dig. Administrator 
 ^C. 1). However, this was denied 
 at N. P. in Hall v. Elliott, Peake, 
 N. P. C. 87, by Lord Kenyon, who 
 said it was impossible there should 
 be a lawful executor, and an exe- 
 cutor de son tort, at the same time. 
 Observations to the same effect 
 were also made by Sir T. Plumer, 
 M.R., in Tomlin v. Beck, 1 Turn. 
 & E. 438, where his Honor held, 
 that a person who was permitted 
 by an executor to possess himself 
 
 of part of the assets of a testator, 
 and who, after the executor's death, 
 and when there was no legal re- 
 presentative, either of the testator 
 or the executor, retained the assets, 
 and acted in the execution of the 
 trusts of the Will, was not execu- 
 tor de son tort to the original tes- 
 tator. 
 
 (z) Godolph. Pt. 2, c. 8, s. 6. So 
 if one do but take a horse of the 
 deceased, and tie him in his own 
 stable : Godolph, Pt. 2, c. 8, s. 3. 
 Wentw. OS. Ex. 385, 14th edition. 
 
 (a) Dyer, 166, b. in margin. 
 Fitzh. Executors, pi. 24. 1 Roll. 
 Abr. 918, Executors (C. 2), pi, 4, 
 Wentw, Off. Ex. c. 14, p. 323, 14th 
 edition. Godolph. Pt. 2, c. 8, r. 6. 
 Harrison v. Rowley, 4 Ves. 216, 
 So where a party receives a debt 
 due to the estate of a person de- 
 ceased, for the purpose of provid- 
 ing the funeral, he will not there- 
 by become chargeable as executor
 
 CIi. v.] Of an Executor de son tort. 
 
 an inventory of liis property (h), feeding his cattle (c), 
 repairing his houses, or providing necessaries for his 
 children (d) : for these are offices merely of kindness and 
 charity (e). 
 
 In the case of Serle v. Watencorth (/), the widow of a 
 hairdresser, one Joseph Waterworth, who died in October, 
 1836, continued to reside in his house and keep open the 
 shop (through which was the entrance to the house), but 
 there was no proof of any articles being sold : In December, 
 she received notice of a bond debt of 1001. due from him, 
 and had his goods valued : On January 3rd, 1837, on the 
 application of a creditor, to whom Joseph Waterworth, at 
 the time of his death, owed 241. for goods, she gave a pro- 
 missory note for that amount, payable to tlie creditor twelve 
 months after date : In March, she took out administration : 
 It was held, in an action against her on the promissory note, 
 that this was not evidence to charge her as executrix de 
 son tort {g). 
 
 213 
 
 de son tort; unless lie receive a 
 greater sum than is reasonable for 
 that purpose, regard being had to 
 the estate and condition of the de- 
 ceased ; which is a question for the 
 jury : Camden v. Fletcher, 4 Mees. 
 & W. 378. 
 
 (6) Godolph. Pt. 2, c. 8, s. 6. 
 
 (c) Godolph. Pt. 2, c. 8, s. 8. 
 
 (d) Godolph. Pt. 2, c. 8, s. 6. 
 
 (e) Swinb. Pt. 2, s. 23. Bac. 
 Abr. tit. Executors (B. 3), 1 Toller 
 40. 
 
 (/) 4 Mees. & W. 9. 
 
 ( g) The defendant had pleaded 
 that one Joseph Waterworth, be- 
 fore and at the time of his death, 
 was indebted to the plaintiff in 
 24^. for goods sold, wliich sum was 
 due to the plaintiff at the time of 
 the making of the note in the 
 declaration mentioned ; tliat the 
 idiiintifl, alter the death of Joseph, 
 
 applied to the defendant for pay- 
 ment ; whereupon in compliance 
 with his request, the defendant, 
 after the death of Joseph, for and 
 in respect of the death so remain- 
 ing due to the plaintiff as aforesaid 
 and for no other consideration 
 whatever, made and delivered the 
 note to the plaintiff; and that 
 Joseph died intestate, and that at 
 the time of the making and de- 
 livery of the note, no administra- 
 tion had been granted of his effects, 
 nor was there amj executor of Jtis 
 estate, nor any person liable for the 
 debt so remaining due to the plain- 
 tiff us aforesaid ; and the plea then 
 averred that tliere never was any 
 consideration for the said note ex- 
 cept as aforesaid : Tlie Barons of 
 the Exchequer held, after verdict 
 for tlie defendant, that the plea 
 was no answer to the declaration.
 
 214 Of an Executor de son tort. [Pt i. Bk. iii. 
 
 If another man takes the goods of the deceased, and sells or 
 gives them to me, this shall charge him as executor of his 
 own wrong, hut not me {h). Accordingly, where a lessee 
 died intestate during the term, and his widow entered, with- 
 out taking administration, and paid rent, and afterwards her 
 son-in-law took the premises, with her concurrence and with 
 the assent of the landlord, and paid rent and continued to 
 occup}' during the remainder of the term ; it was held that 
 he could not be considered as assignee in law of the lease ; 
 for though the widow might have been chargeable as executrix 
 de son tort, he had not made himself executor de son tort by 
 taking the premises from her (/). 
 
 Again, if a person sets up in himself a colourable title to 
 the goods of the deceased, as where he claims a lien on 
 them, though he may not be able to make out his title 
 completely, he shall not be deemed an executor de son 
 tort (k). So if a man lodge in my house, and die there, 
 leaving goods therein behind him, I may keep them, until I 
 can be lawfully discharged of them, without making myself 
 chargeable as executor in my own wrong (/). Or if I take 
 
 inasmuch as it did not negative 90. See also stat. 43 Eliz. c, 8, ante^ 
 
 every consideration for thepromis- pp. 210, 211. The executor of an 
 
 sory note, for that it did not allege executrix de son tort is not liable for 
 
 there were no assets ; and the effect a breach of contract committed by 
 
 ofgivingthenote was, at all events, the person with Avhose property 
 
 to preclude the plaintiff, for a year, the executrix de son tort has inter- 
 
 from suing the defendant, in case meddled : Wilson v. Hodson, L. E. 
 
 she should afterwards take out ad- 7 Ex. 84; unless indeed the execittor 
 
 ministration, which was a suffi- de son tort was guilty of a devasta- 
 
 cient consideration for the giving vit so as to bring the case within, 
 
 of the note : But this decision was 30 Car. ii. c. 7, s. 2, ib. 
 
 afterwards overruled in the Ex- (i) Paull v. Simpson, 9 Q. B. 365, 
 
 chequer Chamber : Nelson v. Serle, Comp. Williams v. Heales, L. R. 9 
 
 4 Mees. & W. 795. C. P. 177. 
 
 (/i) Godolph. Pt. 2, c. 8, s. 1. (k) Flemings v. Jarrat, 1 Esp. 
 
 Com. Dig. Administrator (C. 2). N. P. C. 336. 
 
 It might be otherwise, if a case of (0 Godolph. Pt. 2, c. 8, s. 3. 
 
 collusion could be made out, and Swinb. Pt. 4, s. 23. Com. Dig. 
 
 possibly he might be sued in Adn)inistrator (C. 2). 
 Equity, Hill v. Curtis, L. E. 1 Eq.
 
 Ch. Y.] Of cm Executor de son toii. 21f 
 
 the goods of the deceased by mistake, supposing them to be my 
 own, this will not make me executor of my own wrong {))i). 
 
 Likewise, a man who possesses himself of the effects of the 
 deceased, under the authority of and as agent for the rightful 
 executor, cannot be charged as executor de son tort {n). 
 But, although a person cannot, therefore, be charged as such 
 while he acts under a power of attorney, made by one of 
 several executors who has proved the Will, yet if he continues 
 to act after the death of such executor, he may be charged 
 as executor de son tort, though he act under the advice 
 of another of the executors, who has not proved or adminis- 
 tered (o). 
 
 In Bearau v. Lord Hastings (j)), an Englishman having 
 died intestate in Belgium, possessed of real and personal 
 property there, his brother went over from England and 
 obtained representation to him pur et simple, which by the 
 Belgian Law imposed upon him a personal obhgation to pay 
 all the debts of the intestate independently of the amount 
 of the assets : The intestate's brother afterwards returned 
 to this country, but did not take possession of any property 
 in England belonging to the intestate : A creditor of the 
 intestate obtained letters of administration to him in 
 England : And it was held by Wood, V.-C, that he could 
 
 (m) Ibid. sion of goods as the ageut of E. 
 
 (n) HalU-. Elliott, Peake,N. P. C. and by his order, and B. after- 
 
 87. A person who deals with the wards took out administration^ 
 
 goods of a testator, as agent of the agency and order prevented 
 
 executors who afterwards prove the act of A. from being the act 
 
 the Will, cannot be treated as ex- of an executor de son tort ; for 
 
 ecutor de son tort. Sykes v. Sykes, that the tort of B. was purged 
 
 L. R. 5 C. P. 113. It has been by his becoming administrator, 
 
 held, however, to be no defence and his order became rightful ab 
 
 that the goods were taken by con- initio, so that the agent's act was 
 
 sent of a person to whom admin- also purged. But see 2}ost, p. 220, 
 
 istration was afterwards granted : note (r). 
 
 Parsons v. Mayesden, 1 Freem. (o) Cottle v. Aldrich, 4 Maule & 
 
 152 ; But in Hill v. Curtis, L. R. Selw. 175. But see Tomlin v. Beck, 
 
 1 Eq. 90, it was lield by Wood, ante, p. 212, note (?/). 
 
 V.-C, that where A, took posses- (j)) 2 Kay & J. 724.
 
 216 
 
 Of an Executor de son tort. [Pt. i. Bk. iii. 
 
 (Question 
 whether man 
 is executor de 
 son tort one of 
 law ; whether 
 he did certain 
 acts question 
 of fact. 
 
 Liability of 
 executor dc 
 son tort; 
 
 in an action or 
 suit by a cre- 
 
 not sue the intestate's brother in equity in respect of the 
 personal liability which he had so incurred, but that his 
 remedy to recover his debt was at law. His Honor held also 
 that the intestate's brother, as he had not taken possession 
 of any of the English property of the intestate, was not an 
 executor de son tort. 
 
 The question whether executor de son tort, or not, is a 
 conclusion of law, and not to be left to a jury : whether the 
 party did certain acts is indeed a question for a jury; but 
 when these facts are established, the result from them is a 
 question of law (q). 
 
 When a man has so acted, as to become in law an executor 
 de son tort, he thereby renders himself liable, not only to an 
 action by the rightful executor or administrator, but also to 
 be sued as executor by a creditor of the deceased (?•), or by a 
 legatee (.s) : for an executor de son tort has all the liabilities, 
 though none of the privileges, that belong to the character of 
 executor (t). 
 
 In an action by a creditor he shall be named executor 
 
 {q) Padget V. Priest, 2 T. R. 99. 
 
 (r) Godolph. Pt. 2, c. 8, s. 2. 
 On this ground, in a case where 
 the defendant acted as executor, 
 but did not take out probate till 
 sixteen years after the testator's 
 death, the Lord Chancellor (Eldon) 
 allowed a plea of the Statute of 
 Limitations ; because he might 
 have been sued as executor de son 
 tort : Webster v. Webster, 10 Ves. 
 93. See also Coote v. Whittington, 
 L. R. 16 Eq. 534, from which case 
 it appears that an executor de son 
 tort is]iahle to an account in Ecjuity 
 for such assets as he has received, 
 and so far as you can state that he 
 has received a j^articular asset, but 
 he is not liable to a general account 
 unless he has received everything. 
 In such an action the personal re- 
 presentative is not a necessary 
 
 party. As to the personal repre- 
 sentative being a necessary party 
 in an administration action, see 
 post, Pt. V. Bk. II. Ch. 2. 
 
 (s) 1 Roll. Abr. 910, Executors 
 (F.), pL 1. Bac. Abr. Executors 
 (B,3),3. 
 
 (t) Carmichael v. Carmichael, 2 
 Phill. C. C. 103, per Lord Cotten- 
 ham. Rayner v. Koehler, L. R. 
 14 Eq. 262 ; Coote v. Whittington, 
 L. R. 16 Eq. 534. But see Cary v. 
 Hills, L. R. 15 Eq. 79. Notwith- 
 standing the above dictum of Lord 
 Cottenham, an executor de son tort 
 can discharge himself by account- 
 ing to the rightful executor, 
 although one executor cannot dis- 
 charge himself by accounting to a 
 co-executor. Hill v. Curtis, L. R. I 
 Eq. 90-98.
 
 Ch. v.] Of an Executor de son tort. 217 
 
 generally (») ; for the most obvious conclusion which ditor of the 
 strangers can form from his conduct is, that he has a Will party bene- 
 of the deceased, wherein he is appointed executor, hut has ^"^^'y '"*.®^' 
 
 ' '■ ^ ' ested in his 
 
 not yet proved it (r). And accordingly it has been held (a;), estate. 
 
 that if a man be sued as the executor of an executor for a 
 
 debt of the original testator, it is no answer to the action, 
 
 that he is only executor de son tort to the original rightful 
 
 executor. If there should be also a lawful executor, they Lawful execu- 
 
 may be joined in the suit, or sued severally : but it is other- ^^^ '^^ son tort 
 
 wise, if there be a lawful administrator, for he cannot be may be sued 
 
 jointly or 
 
 joined in a suit with the executor de son tort (y). severally: 
 
 And if the executor de son tort, being sued by a creditor, istrator cannot 
 should plead ne unques executor, on which issue should be executw-^czT*^^ 
 joined, this issue, on proof of acts by the defendant, such as ''o'* t'^^'^- 
 constitute in law an executorship de son tort, would be found 
 against him, and the judgment thereon would be, that the 
 plaintiff do recover the debt and costs, to be levied out of the 
 assets of the testator if the defendant have so much, but if 
 not, then out of the defendant's own goods (s). 
 
 However, though an executor de son tort cannot by his Executor do 
 o^n wrongful act acquire any benefit, yet he is protected in tected in'aU 
 all acts not for his own benefit, which a rightful executor may ^^^^ °ot fo'' ^ 
 
 " _ his own benefit 
 
 do. And, accordingly, if he pleads properly, he is not liable which rightful 
 beyond the extent of the goods which he has administered (a) . ^^^ 
 Therefore, in an action by a creditor of the deceased, under 
 a plea of j>?c?ie administravit, he shall not be charged beyond 
 
 (rt) Coulter's case, 5 Co. 31, a. edition. Godolph. Pt. 2, c. 8, s. 2. 
 
 Godolph, Pt. 2, c. 8, s. 2. 1 Saund. Com. Dig. Administrator (C. 3). 
 
 265, note (2) to Osborne v. Rogers. There cannot be an administrator 
 
 (v) 2 Black. Comm. 507, 8. The ch son tort : the law knows no 
 
 possession and occupation, or raed- such appellation : Godolph. Pt. 2, 
 
 dling with the goods, is that which c. 8, s. 2. 
 
 gives notice to creditors whom (s) Wentw. Off. Ex. c. 14, pp. 
 
 they are to sue as executor: By 331, 332, 14th edition. 1 Saund. 
 
 the Lord Dyer, Wentw. Off. Ex. 336, h. note (10) to Hancock v. 
 
 c. 14, 322, 14th edition. Prowd. Hooper v. Summersett, 
 
 (x) Meyrick v. Anderson, 14 Wightw. 19, by Thompson, B. 
 
 Q. B. 719. («) Godolph. Pt. 2, c, 8, s. 2. 
 
 (y) Wentw. Off. Ex. p. 328, 14t]i Wentw. Off. Ex. 331, 14tli edition.
 
 '218 
 
 Of an Executor de son tort. [Pt. i. Bk. iii. 
 
 the assets which came to his hands {h) : and in support of 
 this plea, he may give in evidence the payments by himself 
 of just debts of the deceased, of equal or superior degree to 
 that on which the action is brought, which have exhausted 
 such assets (c). So even after action brought, he may apply 
 the assets, which are in his hands, to the payment of a debt 
 of superior degree, and plead such payment in bar of the 
 action {d). So he may give in evidence, under the same plea, 
 that he has delivered the assets to the rightful executor or 
 administrator before action brought (e). An executor f/e so/i 
 tort may well plead ne unques executor and also plene adminis- 
 travit, and, although on the former issue he should be un- 
 successful, he may have a verdict on the latter (/). 
 
 But it is no defence either under a plea of plene adminis- 
 
 (&) Dyer, 166, h. in margin. 1 
 Saund. 265, note (2) to Osborne v. 
 Rogers. Hooper v. Summersett, 
 Wightw. 21, 'per curiam. Yardley 
 V. Arnold, Carr. & M. 434. 
 
 (c) Wentw. c. 14, pp. 333, 334, 
 14th edition. Mountford v. Gib- 
 son, 4 East, 454, in the judgment 
 of Le Blanc, J., 2 Black. Comm. 
 508. Bac. Abr. Executors (B. 3), 2. 
 
 {d) Oxenham v. Clapp, 2 Barn. 
 & Adol. 309. See further, post, 
 Pt. III. Bk. II. Ch. II. § III. 
 
 (e) Anon. 1 Salk. 313. Padget 
 V. Priest, 2 T. E. 97, in the judg- 
 ments of Ashurst, J., and Buller, 
 J. Curtis V. Vernon, 3 T. R. 590, 
 in Lord Kenyon's judgment. Hill 
 V. Curtis, ^jos^, p. 219, note (^■). In 
 Samuel v. Morris, 6 C. & P. 620, 
 which was an action of trover, the 
 plaintiff had pledged the goods in 
 question to a parish pauper for a 
 debt : On the pauper's death, the 
 defendants, who were the parish 
 overseers, took the goods, together 
 with those of the pauper, in order 
 to pay the expenses of his funeral j 
 
 When the bill for the coffin was 
 brought in by one Joseph, who 
 had made it by their order, they 
 proposed that he should have all 
 the goods, to make what he could 
 of them, if he would jjay the rent 
 due to the landlord of the house 
 in which the pauper had lived, 
 and all the funeral expenses : To 
 this proposal Joseph assented, and 
 took the goods and sold them : 
 And Parke, B., held, that although 
 the defendants, by taking the 
 goods on the death of the pauper, 
 had made themselves executors 
 de son tort, yet as the jury found 
 that the agreement with Joseph 
 amounted to a transfer of the 
 office, and not to a sale of the 
 goods to hioi by the defendants, 
 they were not liable to the 
 plaintiff, because, he being a 
 pawnor of the goods, a mere 
 seizure of them did not amount to 
 conversion. 
 
 (/) Hooper v. Summersett, 
 Wight. 20, byAVood, B.
 
 Cli. v.] Oj an Executor de mn. tort. 219 
 
 travit, or a special j^lea, that after action brought, and before 
 plea pleaded, the defendant delivered over the assets to the 
 rightful executor or administrator (g) : not even, though, in 
 fact, no administration was granted to any one till after the 
 action was brought (//). So payments made by an executor 
 de son tort, pending a suit in equity for an account of an 
 intestate's estate, to a person who took out administration 
 after the institution of the suit, and was thereupon made a co- 
 defendant, were not allowed (i). 
 
 And it has been said that a man who is sued in equity as 
 executor de son tort, jointly with the rightful executor, cannot 
 set up as a defence that he had, even before the bill was filed, 
 accounted for his receipts and payments to his co-defendant, 
 and paid over the balance ; for that an executor de son tort 
 cannot, by settling with the personal representative, discharge 
 himself from liability to the parties beneficially interested in 
 the testator's estate (/i). So the agent of an executor 
 de son tort, who has, by collecting the assets, made himself 
 also liable as executor de son tort, cannot discharge himself 
 by showing that he has duly accounted for his receipts to his 
 principal ; for the rule that the receipt of the agent is the 
 
 (g) Curtis v. Vernon, 3 T. E. L. R. 1 Eq. 90 : Lord Cotten- 
 
 587. S. C. affirmed in Error, 2 H. ham appears to have been influ- 
 
 Black, 18. The reason seems to enced by the reasoning that even 
 
 be that the creditor would thereby the rightful executor cannot dis- 
 
 be put into a worse situation ; he charge himself by settling accounts 
 
 would have to bring a second with a co-executor : But Wood, 
 
 action against the rightful execu- V.-C, pointed out the reason for 
 
 tor : Oxenham v. Claj^p. 2 B. & this, viz., that a rightful executor 
 
 Adol. 315. is bound to administer the assets 
 
 (h) Curtis V. Vernon, 3 Tr. 587. whicli he receives, and it is not 
 
 2 H. Bl. 18. enough simply to hand them over 
 
 (i) Layfield v. Layfield, 7 Sim. to his co-executor : But an execu- 
 
 172. But see Hill 1), Curtis, L. R. tor do son tort is not so bound; 
 
 1 Eq. 90, Seton on Decrees, 4th ed. and may discharge himself by 
 
 886. showing that he has delivered the 
 
 {k) Carmichael v. Carmicliael, 2 assets to the rightful executor be- 
 
 Phill. C. C. 101, 2Je»' Lord Cotten- fore action brought. Ante, pp. 
 
 ham. But this (toum was doubted 215,218. 
 by Wood, V.-C, in Hill r. Curtis,
 
 220 
 
 Of an Executor de son tort. [Pt. i. Bk. iii. 
 
 Executor dc 
 son tori cannot 
 plead a retainer 
 for his own 
 debt: 
 
 even tliougli 
 debt is of supe- 
 rior degree : 
 
 or thougli 
 rightful execu- 
 tor or adminis- 
 trator assent 
 to retainer : 
 
 but he may 
 retain if after- 
 wards he ob- 
 tain adminis- 
 tration. 
 
 receipt of the principal does not apply to the case of a 
 wrong-doer (/). 
 
 An executor de son tort cannot give in evidence, under 
 plene administravit, or specially plead, a retainer for his own 
 debt : for otherwise the creditors of the deceased would be 
 running a race to take possession of his goods, without taking 
 administration to him {m) . And it will make no difference 
 though the debt due to the executor de son tort be of a 
 superior degree to that of the creditor who brings the action 
 against him (n) : Nor though the rightful executor or 
 administrator has assented to such retainer (o). If the 
 executor de so7i tort should plead the retainer to satisfy his 
 own debt, the plaintiff, though he had sued the defendant as 
 executor generally, may reply, that he is executor de son 
 tort (p). If he attempts to give the retainer in evidence, 
 under 2)l<^ne administravit, the plaintiff must show the Will, 
 and who are the rightful executors (q). 
 
 Yet if an executor de son tort afterwards, even pendente 
 lite, obtains administration, he may retain ; for it legalises 
 those acts which were tortious at the time (r). And, there- 
 fore, if subsequently to the replication that he is executor 
 de son tort, he obtains administration, he may rejoin that fact 
 by way of plea _2^ias darrein continuance ; for it is consistent 
 with the retainer in the plea (s). 
 
 {I) Sharlancl v. Mildon, 5 Hare, 
 469. Unless the executor de son 
 tort, subsequently become adminis- 
 trator, Ibid : Hill v. Curtis, L. E. 
 1 Eq. 90, 100. 
 
 (to) Coulter's case, 5 Co. 30, a. 
 S. C. Cro. Eliz. 630. Wentw. Off. 
 Ex. c. 14, p. 333, 14tli edit. 
 
 (n) Curtis v. Veruon, 2 T. E. 
 587. 2 H. Bl. 18. 
 
 (o) Ilnd. 
 
 (p) Alexander v. Lane, Yelv. 
 137. 
 
 (q) Arnold v. Arnold, Buller, 
 N. P. 143. 
 
 (r) Pj-ne v. Woolland, 2 Ventr. 
 180. Williamson V. Norwitch, Sty. 
 337. 1 Saund. 265, note (2), to 
 Osborne v. Eogers. But if admin- 
 istration be granted to one after 
 be bath intermeddled wronglully 
 Avith the deceased's goods, this will 
 not purge the wrong done before ; 
 and, therefore, a creditor may sue 
 him as executor de son tort, or as a 
 lawful administrator, at his elec- 
 tion : Laury v. Aldred, 2 Brownl. 
 185. Godolph. Pt. 2, c. 8, s. 2. 
 Com. Dig. Administrator, C. 1. 
 
 (s) Vaughan v. Browne, 2 Stra.
 
 Ch. v.] Of an Executor de son tort. 221 
 
 With respect to the liahility of an executor de son tort at His liability ia 
 the suit of the lawful representative of the deceased, there are tl'lTightfuf 
 several authorities to show, that if the rightful executor or ^-'^°<^"'^o^"' 
 administrator bring an action of trover or trespass, the 
 executor de son tort may give in evidence, under the general 
 issue, and in mitigation of damages, payments made by him 
 in the rightful course of administration (t) : upon this 
 ground, that the payments which are thus, as it is termed, 
 re-couped in damages, were such as the lawful executor or 
 administrator would have been bound to make ; and, therefore, 
 it cannot be considered as any detriment to him, that they 
 were made by an executor de son tort (u). But the 
 executor de son tort cannot plead, in bar to an action by 
 the rightful executor or administrator, payments of debts, 
 &c., to the value of the assets, or that he has given the goods 
 in satisfaction of the debts (x) ; and, although the payments 
 proved, under the general issue, to have been made by the 
 executor de son tort amount to the full value of the goods 
 sought to be recovered in the action of trespass or trover, 
 the lawful executor or administrator shall not be nonsuited, 
 but will still be entitled to a verdict for nominal damages {y). 
 And in the case of Woolley v. Clark (z), a Will was proved 
 
 1106. S. C. Andr. 328. 1 Saund. ford v. Gibson, 4 East, 451. 
 
 265, note (2), to Osborne V. Rogers ; (x) Whitehall v. Squire,; Garth, 
 
 but see Whitehead v. Sampson, 1 104, by Holt, C.J. 2 Black. Comni. 
 
 Freeni. 265. 508. Elworthy v. ^Sandford, 3 
 
 (t) Padget V. Priest, 2 T. R. Hurl. & G. 336. 
 100, by Buller, J. Mountford v. (y) Anon. 12 Mod. 441. 2 Phil- 
 Gibson, 4 East, 454, by Le Blanc, lipps on Evid. 234, n. 6, 7th edit. 
 J. 2 Black. Goinm. 508. Bac. The contrary is laid down as to 
 Abr. Exors. (B. 3), 1. Fyson v. the action of trover, in Buller's 
 Ghambers, 9 M. & W. 468, ^jcr Nisi Prius, 48 ; butjhe [authority 
 Lord Abinger. It is said in Bull, cited for this position does not sup- 
 N. P. 48, that perhaps in trover port it, and it is, as it seems, incor- 
 he could not give in evidence pay- rect. See Mountford v. Gibson, 4 
 ment of debts to the value of such East, 447, by Lord Ellenborough. 
 goods as were still in his custody ; Roscoe on Evidence, 15th edit, 
 but only for such as he had sold : 1110. 
 sed quaere. (2) 5 B. & A. 744. 
 
 (u) By Lawrence, .L, in Mount-
 
 222 Of an Executor dc son toii. [Pt i. Bk. iii. 
 
 by the executor named in it, who, after probate, sold the 
 goods of the testator : At the time of the sale he had notice 
 of a subsequent Will, which was afterwards proved, and the 
 probate of the former Will revoked on citation : whereupon 
 the executor, under the latter Will, brought trover against 
 the executor under the former, for the goods sold : and it 
 was holden, that the action was sustainable to recover the 
 fall value, and that the defendant ivas not entitled, in mitiga- 
 tion of damages, to show that he had administered assets to 
 the amount (a). 
 
 Again, this re-couping in damages can only be allowed to 
 the executor de son tort in cases where there are sufficient 
 assets to satisfy all the debts of the deceased ; for otherwise 
 the rightful executor or administrator would be precluded, 
 not only from giving preference to one creditor over others 
 of equal degree, which is one of the privileges of his office, 
 but also from satisfying his own debt, in priority to all those 
 of equal degree, by way of retainer (h) . 
 What effect It remains to be considered, what effect the acts of an 
 
 the acts of an g^gg^tor de son tovt may have on the goods of the deceased, 
 
 executor de -^ " _ _ 
 
 son tort shall m.^ relation to the rightful executor or administrator and the 
 
 have on goods 
 
 aliened by alienee of the executor de son tort. 
 
 ^™- It is laid down in Coulter's case(c), that "it is clear 
 
 that all lawful acts, which an executor de son tort doth, are 
 good." So it was said in Grayshrook v. Fox {d), by Walsh, 
 quod alii duo Justiciarii concesscrnnt, that if an administrator 
 under a grant which is void (by reason of there being a 
 Will and executor) aliens the goods of the deceased to pay 
 the funeral, or debts, the sale is good and indefeasible. And 
 
 (a) It must be observed, that overriding them, 
 
 the authorities in favour of the (h) Wentw. Off. Ex. c. 14, p. 335, 
 
 right of an executor de son tort to 14th edit. Mountford v. Gibson, 
 
 re-coup, in damages, payments 4 East, 453, in the judgment of 
 
 made in a due course of adminis- Lawrence, J. 2 Black. Comm. 
 
 tration, were not cited in the argu- 507, 8. Elworthy v. Sandford, 3 
 
 ment of this case, nor was the Hurl. & C. 330. 
 
 point mentioned : Idea queerer (c) 5. Co. 30 b. 
 
 whether it must be understood as (d) Plowd. 282.
 
 Ch. v.] Of an Executor de son tort. 223 
 
 Lord Holt, in Parker v. Kett (e), laid down that a legal 
 act done by an executor de son tort shall bind the rightful 
 executor, and shall alter the property ; and that the reason 
 is, because the creditors are not bound to seek further than 
 him who acts as executor ; therefore, if an executor de son 
 tort pays lOOZ. of the testator's in a bag to a creditor 
 the rightful executor shall not have trover against the 
 creditor (/). 
 
 But when it is thus generally laid down, that payments 
 made in the due course of administration, by one who is 
 executor de son tort, are good, that must be understood of 
 cases where such payments are made by one who is proved to 
 have been acting at the time in the character of executor, and 
 not of a mere solitary act of wrong, in the very instance 
 complained of, by one taking upon himself to hand over the 
 goods of the deceased to a creditor. Thus in Mountford 
 V. Gibson (g), the goods in question had originally been sold 
 by the defendant to the intestate in his lifetime ; on his 
 death, they not having been paid for, on application to the 
 intestate's widow for that purpose, she delivered them back to 
 the defendant, in satisfaction of his demand : No other acts 
 appeared to have been done by the widow, to show that she 
 had before taken upon herself to act as executrix : The 
 administrator brought trover for the goods against the 
 creditor ; on whose behalf it was contended, that he had a 
 right to protect himself in the action under such payment 
 by the widow as executrix dc son tort : But the Court of 
 King's Bench held, on the ground above stated, that this was 
 no defence. Accordingly in Thomson v. Harding (h), it was 
 laid down in the judgment of the same Court that the law is 
 not that as against the true representative every payment from 
 the assets of the deceased shall be valid, if made by a person 
 
 (e) 1 Lord Raym. 661. S. C. in Oxenham v. Clapp, 1 B. & Ad. 
 
 12 Mod. 471. 313. 
 
 (/) See also the judgment of Le (g) 4 East, 441. 
 
 Blanc, J., in Mountford v. Gibson, (A) 2 E. & B. G30. 
 4 East, 454, and of Littledale, J.,
 
 221 
 
 Of an Executor de son tort. [Pt. i. Bk. in. 
 
 How far an 
 administrator 
 is bound by 
 his own acts 
 as executor de 
 son tort. 
 
 "n-ho has so intermeddled with the property of the deceased 
 as to render himself liable to be sued as executor de son 
 tort : But that where the executor de son tort is really 
 acting as executor, and the party with whom he deals has 
 fair reason for supposing that he has authority to act as 
 such, his acts shall bind the rightful executor and shall alter 
 the property. 
 
 It must further be observed that the act of an executor 
 de son tort is good against the true representative of the 
 deceased only where it is lawful, and such an act as the 
 true representative was bound to perform in the due course of 
 administration (?). 
 
 Where a man has acted as executor de son tort, and after- 
 wards obtains letters of administration, a question may arise, 
 how far he is bound, in his character of rightful adminis- 
 trator, by his own acts done while executor de son tort. This 
 subject will be considered hereafter, together with the question 
 as to what may be done by an administrator before letters of 
 administration are granted {k) . 
 
 (i) Buckley v. Barber, 6 Excb. 
 164. 
 
 Qc) Post, Pt. I. Bk. v. Cli. 
 §n.
 
 225 
 
 CHAPTER THE SIXTH. 
 
 OF THE executor's REFUSAL OR ACCEPTANCE OF THE OFFICE. 
 
 SECTION I. 
 WJieji and how the office may he refused. 
 
 1 HE office of executor being a private oue of trust, named Executors 
 
 to 
 the 
 
 office : 
 
 by the testator, and not by the law, the person nominated comp°ened 
 may refuse, though he cannot assign the office (a) ; and even '^^^'^p* *^® 
 
 if in the lifetime of the testator he has agreed to accept the 
 office, it is still in his power to recede {h). 
 
 But though the executor cannot be compelled to accept but might be 
 the executorship, whether he will or not, yet by stat. the Orclfna.7 
 21 Hen. VIII. c. 5, s. 8, the Ordinary might convene before *° ^'^"^p* °^ 
 
 refuse 
 
 him (c) any person made and named executor of any testa- 
 ment, " to the intent to prove or refuse the testament " and 
 if he neglected to appear, he was, previous to the stat. 53 
 Geo. III. c. 127, punishable by excommunication for a 
 contempt {d) ; and might subsequently be dealt with in the 
 mode substituted by that statute, s. 2, for excommunica- 
 tion (e). This power of citation to take or refuse probate 
 was, it is apprehended, transferred to the Court of Probate 
 by the 23rd section of the Court of Probate Act, 1857, and 
 now to the Probate Division of the High Court of Justice, 
 and a neglect to appear to the citation may be punished as for 
 a contempt of the Court under the 25th section. 
 
 {a) Bac. Abr. Exors. (E.) 9. See {d) Wentw. OS. Ex. 88, 14t1i 
 
 Douglas V. Forrest, 4 Bingh. 704, edit. Treat, on Eq. Bk. 4, Pt. 2, 
 
 in the judgment of Best, C.J. c. 1, s. 4. 
 
 (6) L)oyle v. Blake, 2 Sclio. & (c) See stat. 2 & 3 W. IV. c. 93. 
 
 Lef. 239. (Act for enforcing process upon 
 
 (c) See stat. 1 Edw. VI. c. 2, as contempts in the Courts Ecclesias- 
 
 to the form of the citation. tical.) 
 
 W.E. — VOL. I. Q
 
 226 
 
 Oftlie Executors refusal [Pt. I. Bk. III. 
 
 Letters ad 
 collif/enduin. 
 
 administration 
 cum testamento 
 annexo. 
 
 Ftat. 21 & 22 
 Vict. c. 95, 
 s. 16 : 
 
 executor not 
 acting or not 
 appearing to a 
 citation to be 
 treated as if 
 lie had 
 renounced. 
 
 In what cases 
 
 The time allowed to the person named executor, to 
 deliberate whether he will accept or refuse the executorship, 
 is uncertain, and left to the discretion of the judge, who 
 has used, at his pleasure, not only within the year, but 
 within a month or two, to issue his citation (/). 
 
 If he appear, either on citation or voluntarily, and pray 
 time to consider whether he will act or not, the Ordinary 
 might, though the practice seems now obsolete, grant letters ad 
 colligendum in the interim (g). But if he appear, and refuse to 
 act or fail to appear to the above-mentioned process, admin- 
 istration cum testamento annexo will be granted to another (h). 
 
 And by stat. 21 & 22 Vict. c. 95, s. 16, " 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 administration of his effects shall and 
 may, without any further renunciation, go, devolve, and be 
 committed in like manner as if such person had not been 
 appointed executor " (i). 
 
 Although, as above stated, an executor has his election 
 
 (/) Swinb. Pt. 6, s. 4. Godolph. 
 Pt. 2, c. 19, s. 1. 
 
 ((/) Broker v. Charter, Cro. Eliz. 
 92. Treat, on Eq. Bk. 4, Pt. 2, 
 c. 1, s. 4. Toller, 41. 
 
 (/i) Swinb. Pt. 6, s. 1, pi. 3,.s. 2, 
 pi. 3, 4. See as to administration 
 cum testamento annexo, generally, 
 post, Pt. I. Bk. V. Ch. III. § I. 
 
 (t) This enactment seems, in 
 effect, to extend the 79th section 
 of the Stat. 20 & 21 Vict. c. 77 
 {post, p. 233), to the case of a party 
 cited, who will not renounce or 
 take any step. Therefore, where an 
 executor to whom power has been 
 reserved survives his acting co- 
 executor, and does not appear to a 
 
 citation, the case will stand as if 
 his name had never appeared in 
 the Will, and the executor, if any, 
 of the acting executor will be the 
 representative of the original tes- 
 tator : In the goods of Noddings, 
 2 Sw. & Tr. 15. So on the death 
 of an executor, without having 
 either renounced or taken probate, 
 the executor of the survivor of two 
 acting executors becomes the per- 
 sonal representative of the original 
 deceased : In the goods of Lorimer, 
 2 Sw. & Tr. 471. The section ap- 
 plies where the executor is cited to 
 take probate of a copy of a Will, 
 and does not appear : Davis v. 
 Davis, 31 L. J., P. M. & A. 216.
 
 Cli. VI. § I.] or acceptance of tlie Office. 227 
 
 whether he will accept or refase the executorshii^, yet he an executor 
 may determine such election, by acts which amount to an ^^^ 
 administration. For if he once administer, it is considered l^e cannot if he 
 
 ii;ii IT iTPii ,1- Ti o'^'^s aclminis- 
 
 tnat he has already accepted oi the executorship, and the ter. 
 
 Court may compel him to prove the Will [j). And if Executor liable 
 
 , , 1 . p -. . -I • • . to penalty of 
 
 an executor take possession oi, and in any way administer, any double duty if 
 part of the personal estate, without obtaining probate of the obtai°rir°b t 
 will within six months of the death of the testator, or within within six 
 
 . . montlis of tes- 
 
 two months after the termination of any suit or dispute re- tator's death : 
 specting the will, if there be any such, which shall not be ^^ within two 
 
 months of ter- 
 
 ended within four months after the death of the testator, he mination of 
 is liable to a penalty of double the amount of duty chargeable, ^'^^ ''' ^ ^'^^ ' 
 which penalty becomes a debt due from him to the Crown, 
 recoverable by any of the ways or means in force for the 
 recovery of probate, legacy or succession duties (A). 
 
 If an executor of an executor intermeddle in the adminis- Nor can the 
 tration of the effects of the first testator, he cannot refuse the executor refuse 
 administration of the effects of the latter : And it has now ^^}^^- °^T 
 
 administer. 
 
 been decided in accordance with the practice of the Pre- 
 rogative Court that he cannot take upon himself the latter 
 and refuse the former (/). 
 
 Although there are old cases to the contrary, the law, The Court may 
 it should seem, is now taken to be, that the Court may execiitois^re- 
 (though perhaps it ought not) accept the executor's refusal, ^"thstandin 
 notwithstanding he has administered {m). So if the executor ^^ ^^^ aimm- 
 has acted, and the Court, not knowing it, commits administra- 
 tion to another, though the administration may be revoked, and 
 the executor compelled to prove the Will («), yet the grant 
 
 (i) Godolph. Pt. 2, c. 19, s. 2. Eq. 25. In the goods of Perry, 2 
 
 Swinb. Pt. 6, s. 2, pi. 6, s. 22, pi. 1. Curt. 655. 
 
 Bro. Exors. pi. 90. Long v. Synies, {m) 1 Roll. Abr. Exor. (C.) 2, 
 
 a Hagg. 774. Mordaunt V.Clarke, p. 907. Wentw. Off. Ex. 91, 14th 
 
 L. R. 1 P. & D. 592. edit. 2 Scho. & Lelr. 237. Factum 
 
 (k) 55 Geo. III. c. 184, § 37, valet, says Wentworth, quod fieri 
 
 amended by the Customs and In- non dehuit. See also Jackson v. 
 
 land Revenue Act, 1881. 44 Vict. Whitehead, 3 Phillim. 577. 
 c. 12, § 40. (n) Wentw. Off. Ex. 91, 14th 
 
 (l) Brooke v. Haymes, L. R. G edit. Godoljih. Pt. 2, c. 31, s. 3. 
 
 Q 2
 
 228 
 
 Of the Executor's refusal [Pt. i. Bk. in. 
 
 Renunciatiou 
 of one of 
 several execu- 
 tors after inter- 
 meddling 
 invalid. 
 
 The executor 
 is liable to be 
 sued, although 
 administration 
 be granted to 
 another, if he 
 has adminis- 
 tered. 
 
 Question of 
 liability to 
 creditors and 
 legatees of exe- 
 cutor renounc- 
 ing after acts 
 of administra- 
 tion. 
 
 What amounts 
 to an adminis- 
 tration. 
 
 of admiuistratiou cum testamento annexo, until so revoked, is 
 valid ; and, consequently, in neither of these cases can a 
 debtor to the testator, in answer to a suit by such administrator, 
 set up the act in pais of the executor against his renunciation, 
 in order to delay or prevent a recovery by the administrator (o). 
 
 If one of several executors, after intermeddling with the effects, 
 renounces, his renunciation is invalid, and the record of it on 
 the probate granted to his co-executors ought tobe cancelled {p). 
 
 The only sense in which the committing of the adminis- 
 tration under such circumstances can now be said to be void, 
 is, as far as respects the protection of the executor : for if he 
 has once administered, he will remain liable to be sued 
 as executor, both at law and in equity, in spite of his 
 renunciation, and the consequent appointment of an admin- 
 istrator (g). So if an executor administer to part of the 
 assets, he shall be charged with the receipts, as executor, 
 though he renounced the executorship, and paid the money to 
 the other executor who proved the Will (r). 
 
 The general question as to the liability, to creditors and 
 legatees, of an executor who renoances after an act of admin- 
 istration, or who proves the Will, and then professes to 
 renou7ice his representative character, will be considered at 
 large in a subsequent part of this Treatise (s). 
 
 With respect to what acts will amount to an administering, 
 such as to render an executor compellable to take probate, 
 two general rules may be laid down : 1st, That whatever the 
 executor does with relation to the goods and effects of the 
 testator, which shows an intention in him to take upon him 
 the executorship, will regularly amount to an administration. 
 2ndly, That whatever acts will make a man liable as au 
 
 (o) Doyle V. Blake, 2 Sclio. & liis renunciation on the groiuiil 
 
 Lefr. 237. 
 
 ( f) In the goods of Badenach, 3 
 Sw. & Tr. 465, in which case one 
 of several co-executors who had 
 renounced after intermeddling was 
 allowed, notwithstanding section 
 
 that the renunciation was invalid 
 after intermeddling. 
 
 {<l) Wentw. Off. Ex. 92, 14th 
 edit. 
 
 (?•) Read v. Truelove, Amhl. 41 7. 
 
 (s) Post, Pt. IV. Bk. II. Ch. n. 
 
 79 (jf 20 & 21 Vict. c. 77, to retract S ii.
 
 Ch. VI. § I.] or acceptance of the Office. 22 J 
 
 executor de son tort (t), will be deemed an election of the 
 executorship (u) , 
 
 Hence, it has been a^ljudged, that if the executor takes 
 possession of the testator's goods, and converts them to his 
 own use, or disposes of them to others, this is an adminis- 
 tration (x). So if he takes the goods of a stranger, under 
 an apprehension that they belonged to the testator, and 
 administers them, this amounts to an administration (y). As 
 where the testator being tenant at will of certain goods, his 
 executor seized the goods, supposing them to belong to the 
 testator, with an intent to administer ; it was holden, that his 
 intention appearing, this made him executor in law (z). 
 
 Where a man who was named as one of several executors, 
 in answer to an inquiry who were the executors, wrote a 
 letter, saying, that he and others were executors, this was 
 held to afford sufficient evidence that he had acted as 
 executor (a). 
 
 But if an executor seizes the testator's goods, claiming a 
 property in them himself, though afterwards it appears that 
 he had no right, yet this will not make him executor ; for the 
 claim of property shows a different view and intention in him 
 than that of administering as executor (b). 
 
 If an executor receives debts due to the testator, and, 
 especially if he gives acquittances for such debts, this amounts 
 to an election of the executorship ; so, if he releases a debt 
 due to the testator (c). 
 
 {t)Qeeante, C\i.\.Tp. 208, etseq., (y) 1 Roll. Abr. 917, pi. 12. 
 
 as to Avhat acts will constitute a Bac. Abr. tit. Executors (E.) 10. 
 
 man executor de son tort. (z) 1 Roll. Abr. 917, pi. 13. 
 
 («) Godolph. Pt. 2, c. 8, s. 1, Bac. Abr. tit. Executors (E.) 10. 
 
 and s. 6. Bac. Abr. tit. Executors (a) Vickers v. Bell, 10 Jur. N. S. 
 
 (E.) 10. Toller, 4.3. Rayner v. 376. 3 N. R. 624. 
 
 Green, 2 Curt. 248 ; but see (5) Bac. Abr. tit. Executors (E.) 
 
 Wentw. Off. Ex. c. 3, p. 94, 14th 10. 
 
 edit. (r) Wentw. Off. Ex. 94, 14th 
 
 (.r) Wentw. c. 3, p. 93, 14th edit. Swinb. Pt. 6, s. 22, pi. 2. 
 
 edit. : or even take them into his 1 Roll. Al)r. 917, pi. 7, 8. Pytt y. 
 
 hands, some say, without convert- Fendall, 1 Cas. leiiip. Lee, 553. 
 in;:' them : Ibid.
 
 230 Oftlie Executors refusal [Pt. i. Bk. iii. 
 
 So, if there are two executors, and one of them hath a 
 specific legacy devised to him, and he takes possession of it, 
 without the consent of his co-executor, this amounts to an 
 administration ; for a devisee cannot take a personal chattel 
 devised to him, without the assent of the executor {d.) 
 
 In the case of Long v. Sfjmes (e) the insertion of an ad- 
 vertisement 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 com- 
 pellable to take probate, and to subject them personally 
 to the costs occasioned by their resistance : the estate 
 being small, and left for two years and a half without a 
 representative. 
 
 An executor who has not proved is not to be considered as 
 acting by assisting a co-executor, who has proved, in writing 
 letters to collect debts, nor by writing directly to a debtor 
 of the testator, and requiring payment (/). But in Harrison 
 V. Graham (g), Barbara Graham by Will appointed her 
 mother, her sisters Margaret and Elizabeth, and her brother 
 Eobert, her executors, and died : Margaret alone proved the 
 "Will, and acted chiefly as executor, and was described as the 
 only acting one, in a letter of attorney executed by the others, 
 who were therein described as executors, to empower Margaret 
 to receive a quantity of stock : Eobert, by virtue of another 
 letter of attorney, executed by the other executors, transferred 
 a quantity of the testatrix's S. S. Stock, received the money, 
 and paid it over the same day to Margaret : After this 
 she and the mother died, making Eobert their executor : 
 It did not appear that Eobert had, under the first ex- 
 ecutorship, done any other act as executor, besides giving the 
 one letter of attorney, and receiving the other : But Lord 
 Hardwicke held that this was such an act of administra- 
 
 ((/) 1 Eoll. Abr. 917, tit. Exor. (/) Orr v. Newton, 2 Cox. 274. 
 
 (B.) pi. 9. Bac. Abr. tit. Exor. See also Stacey v. Eljili, 1 M. & K. 
 
 (E.) 10. See infra, Pt. ill. Bk. iii. 195. 
 Ch. IV. § III. (g) 3 Hill's MSS. 2.39. 1 P 
 
 (e) 3 Hagg. 771. Wms. 241, note {y) to Cth edit.
 
 Cli. VI. § I.] or acceptance of the Office. 231 
 
 tion iu Robert, as should make him chargeable as to his 
 own estate {h). 
 
 Taking the oath as executor is not to be considered as an An executor 
 intermeddling such as to preclude renunciation (/'). In a a'fte/he'is'^*^ 
 case indeed, decided 31 Car. II., the executor named in the ^worn. 
 Will had taken the usual oath, and then refused (but after a 
 caveat entered) ; and another endeavoured to obtain letters of 
 administration : the executor came afterwards to desire the 
 Will under probate, and contested the granting of admi- 
 nistration : and it was adjudged against him, supposing that 
 he was bound by the refusal : But after an appeal to the 
 Delegates, a mandamus was prayed, and granted by the 
 Court of King's Bench : for that, having taken the oath, ho 
 could not be admitted to refuse, and the Ecclesiastical Court 
 had no further authority (A) . However, if he has not ad- 
 ministered, the Court will now, upon his own application, 
 dismiss him, and allow him to renounce probate, even after 
 the usual oath, and an appearance given as executor. Such 
 a renunciation was permitted in the case of Jackson v. White- 
 head (1), in order that the executor might be examined as a 
 witness ; and Sir John Nicholl, in giving his judgment, 
 seemed to doubt the correctness of the report of the former 
 case, and said, that at most it only decided that a voluntary 
 renunciation is not so binding as to exclude an executor from 
 the duties of the executorship. 
 
 With respect to the mode of refusal by the executor, it is How an 
 laid down that refusal cannot be verbally, or by word, but it i-enounce : ' 
 must be by some act entered or recorded in the Spiritual 
 Court ; and therefore must be done before some judge 
 spiritual, and not before neighbours in the country {m). But the refusal 
 
 1 /^ T 1 1 • 1 1 must not be in 
 
 if the executor send a letter to the Ordmary, by which he pah, but in 
 
 the Sijiritual 
 
 Qi) The judgment in this case L. J., P. M. & A. 9. 
 
 •will he found fully stated, 2^osf, (k) Anon. 1 Ventr. 335. 
 
 Pt. IV. Bk. n. Ch. ii. § ii. (l) 3 Phillim. 577. See also 
 
 (i) jNIacdonell v. Prendergast, 3 Long v. Symes, 3 Hagg. 774. 
 
 Hagg. 216. But he cannot re- (m) Wentw. Off. Ex. 88, 14th 
 
 nounce after he has taken pro- edit. Long v. Synies, 3 Hagg. 
 
 bate : In the goods of Veiga, 32 77G.
 
 232 
 
 Of the Executors refusal [Pt. i. Bk, iii. 
 
 imtll refusal 
 recorded ho 
 one can take 
 administration: 
 
 before whom, 
 ■when the Or- 
 dinary himself 
 is executor : 
 
 form of renun- 
 ciation : 
 
 executor de- 
 clining the 
 iT.sual oath : 
 
 his renuncia- 
 tion cannot be 
 in part : 
 
 renounces, and the refusal be recorded, it is sufficient. As 
 in a case where Sir Ealph Rowlet made the Lord Keeper 
 Bacon, C. J. Catlin, and the Master of the Rolls, executors ; 
 they wrote a letter to the Ordinary, that they could not 
 attend the executorship, and therefore wished him to commit 
 administration ; who did so, making every one of their 
 refusals to he recorded ; and this was held good {n). And 
 accordingly it has been held that the renunciation need not be 
 under seal (o). 
 
 Until the refusal is recorded, no person can take adminis- 
 tration {p) . 
 
 In case the Ordinary himself were made executor, then he 
 might refuse before his own commissary (9"). 
 
 If a party renounce in person, he takes an oath that he has 
 not intermeddled in the effects of the deceased, and will not 
 intermeddle therein with any view of defrauding the creditors. 
 But he may renounce by proxy, and then the oath is dispensed 
 with (r). 
 
 If the executor refuse to take the usual oath, or being a 
 Quaker to make the affirmation, this amounts to a refusal of 
 the office, and shall be so recorded (s). 
 
 An executor cannot in part refuse. He must refuse 
 
 (n) Broker v. Charter, Cro. Eliz. 
 92. S. C. Owen, 44. Moor, 272. 
 1 Leon. 135. Wentw. Off. Ex. 88, 
 14th edit. Godolph. Pt. 2, c. 19, 
 s. 4. 
 
 (0) In the goods of Boyle, 3 Sw. 
 & Tr. 426. 
 
 [j)) Long V. Symes, 3 Hagg. 776. 
 And imtil the refusal has been 
 recorded, it can be withdrawn. In 
 the goods of Morant, L. E. 3 P. & 
 D. 151. Administration will not 
 be granted on the consent of the 
 executor. The executor must 
 either renounce jirobate or fail to 
 appear to citation under stat. 21 & 
 22 Vict. c. 95, sect. 16, ante, p. 226. 
 Garrard v. Garrard, L. E. 2 P. & 
 
 D. 238. 
 
 (g) Wentw. Off. Ex. 89. Bro. 
 Ordinary, pi. 13. The usual prac- 
 tice of the Eegistry has been to 
 require renunciation to be under 
 the hand of the party entitled to 
 the grant. But where he is out of 
 England, an authority to renounce 
 by power of attorney may sutSce : 
 In the goods of Eosser, 3 Sw. &, 
 Tr. 490. 
 
 (r) Toller, 42. 
 
 (s) Eex V. Eaines, 1 Lord Eaym. 
 363, per Holt, C.J. Toller, 41. 
 As to the effect of an executor not 
 appearing when cited to take pro- 
 bate, see ante, p. 226.
 
 Cli. VI. § II.] or acceptance of the Office. 233 
 
 entirely, or not at all (t) . An exception has been supposed to 
 exist in the case of his testator being executor to another 
 person ; for there, it has been said, he might well assent to 
 be executor to the one testator, and refuse for the other. 
 But it has now been decided in accordance with the estab- 
 lished practice of the Prerogative Court that he can not 
 do so (u) . 
 
 It was the practice of the prerogative office of Canterbury the renuncia- 
 
 , . . „ I'll tion will not 
 
 not to receive the renunciation oi a party, unless it be accom- iq received 
 panied by the original Will of the deceased, probate of which ^n^iJ^^ij^""^^^ 
 it purports to renounce (r). Will. 
 
 SECTION II. 
 
 The consequence of Renunciation hy an Executor. 
 
 Prior to the passing of stat. 20 & 21 Vict. c. 77, s. 79, Former prac- 
 it had been established, by the practice of the Prerogative traction by 
 Court and the decided cases, that the renunciation of an ^gQ°n*ktion. 
 executor might be retracted at any time before administration 
 granted, and that where there was a sole executor who 
 renounced or several who all renounced and administration 
 was granted, the renunciation could never be retracted ; but 
 that where there were several executors and some renounced 
 and others proved the Will the renunciation was not peremp- 
 tory, but might be retracted at any time before any actual 
 grant of administration de bonis non, but not afterwards {x). 
 
 But now by stat. 20 & 21 Vict. c. 77, s. 79, "where any Modem prac- 
 person, after the commencement of this Act, renounces pro- ^J^^^. 20 & 21 
 bate of the Will of which he is appointed executor, or one of V'^*- <=• ''^' 
 the executors, the rights of such person in respect of the Rights of an 
 
 executor re- 
 
 (0 Paule V. Moodie, 2 Eoll. Rep. Add. 35. 
 
 132. 11 Vin. Abr. 139, pi. 10. (a;) See as to the practice and 
 
 (m) Brooke v. Haymes, L. R. 6 authorities prior to 20 & 21 Vict. 
 
 Eq. 25. In the goods of Perry, 2 c. 77, s. 79, the former editions 
 
 Curt. 655. Ante, p. 227, note \l). of this Work : Pt. i. Bk. in. Ch. vi. 
 
 {v) In the goods of Fenton, 3 § il.
 
 •234 
 
 Of the Executors refusal [Pt. i. Bk. iii. 
 
 nouncing 
 probate to 
 cease as if he 
 had not been 
 named in the 
 WiU. 
 
 Rule 50, P. E. 
 No person 
 renouncing in 
 one charactei' 
 to take repre- 
 sentation in 
 another. 
 
 Whether exe- 
 cutors may, 
 after renounc- 
 ing, exercise a 
 power. 
 
 executorship shall wholly cease, and the representation of 
 the testator and the administration of his eifects shall and 
 may, without any further renunciation, go, devolve and be 
 committed in like manner as if such person had not been 
 appointed executor " {y). 
 
 " By rule 50, P. Pi. (non-contentious business), no person 
 w^ho renounces probate of a Will or letters of administration 
 of the personal estate and effects of a deceased person in one 
 character is to be allowed to take a representation to the 
 deceased in another character " (c). 
 
 It is said by very eminent writers, that where a power 
 is given to executors, they may exercise it, although they 
 renounce probate of the "Will (a). But with the greatest 
 deference to their authority, it may be doubted whether 
 the position is true, unless when the power is given them in 
 their proper names, and without reference to their of&ce as 
 executors {h). 
 
 {ij) See In the goods of Xod- 
 dings and In the goods of Lorimer, 
 ante, p. 226, note {i). There is 
 nothing in this enactment to pre- 
 vent the Court from allowing a 
 retractation of the renunciation 
 according to the old practice in a 
 case tit for it, e.g., where it has 
 taken place after an intermed- 
 dling : In the goods of Badenach, 
 3 S\v. & Tr. 465. But such re- 
 tractation will not he allowed un- 
 less it can be shown that it will be 
 for the benefit of the estate or of 
 those interested under the Will : 
 In the goods of Gill, L. R. 3 P. & 
 D. 113. In the goods of Loftus, 3 
 Sw. & Tr. 307. This section does 
 not apply to an executor who re- 
 nounced before the Act came into 
 force : In tlie goods of AVhitham, 
 L. R. 1 P. & D. 303. 
 
 (s) See In the goods of Loft us, 
 3 Sw. & Tr. 307, from which it 
 appears that this rule is capalde of 
 
 modification by the Court. See 
 also In the goods of Wheelwriglit, 
 3 P. D. 71. In the case of In the 
 goods of Russell, L. R. 1 P. & D. 
 634, the Court allowed one who 
 had been appointed executor and 
 renounced that office, to take ad- 
 ministration test, annexo as at- 
 torney of the other executors not- 
 withstanding rule 50. A renun- 
 ciation may be retracted at any 
 time before it is filed and recorded 
 in the registry : In the goods of 
 Morant, L. R. 3 P. & D. 151. As 
 to renunciation by a next of kin, 
 see j)o.sf , Pt. I. Bk. v. Ch. in. § i. 
 
 (n) 1 Sugden on Powers, 138, 6th 
 edit. 2 Prest. on Abstr. 264. 
 
 {h) See Perkins, No. 548, where 
 the distinction is thus taken : " If 
 a man will that A. and B., his exe- 
 cutors, shall sell, &c., and they re- 
 fuse before the Ordinary, yet it 
 seems they may sell, because they 
 are certainly named, so that it ap-
 
 Ch. VI. § II.] or acceptance of the Office. 
 
 235 
 
 If a power has been conferred on a party to a deed, liis 
 executors, administrators, and assigns, and lie dies, having 
 appointed several executors, one of whom renounces, the 
 others who act may well exercise the power (c). 
 
 If a debtor makes his creditor and another his executors. An executor 
 and the creditor neither intermeddles, nor proves the Will, may sue his 
 he may bring an action against the other executor (d). co-executor. 
 
 pears the Will of the testator is, 
 that they shall sell, whether they 
 refuse or not. But otherwise it 
 shall be (as it seems) if he will 
 that his executors shall sell, with- 
 out expressing their names, and 
 they all refuse before the Ordinary, 
 they cannot sell." See also the 
 cases of Yates v. Compton, 2 P. 
 Wms. 309, and Keates v. Burton, 
 14 Ves. 434 (which is cited by Sir 
 E. Sugden). In the latter case, a 
 power was given to "my said 
 trustees and executors," and one of 
 the executors died and the other 
 renounced, without exercising it : 
 Sir W. Grant observed, "The 
 power is given to the executors, 
 but they have not exercised it, and 
 they have renounced the only cha- 
 racter in which it was competent 
 
 to them to exercise it." Tlie view 
 taken by the Author in the text 
 has been confirmed by the decision 
 of the Court of Appeal in Craw- 
 ford V. Forshaw [1891], 2 Ch. 261 : 
 in which case it was held (re- 
 versing the decision of Kekewich, 
 J.) that an executor, who had 
 renounced probate, could not act 
 in the exercise of a power of 
 selecting charities and distributing 
 a residue amongst them : and that 
 the power was given to the execu- 
 tor in the character of executor, 
 and that the two who had proved 
 could exercise it alone. 
 
 (c) Granville (Earl) v. M'Neile, 
 7 Hare, 156. 
 
 (d) Dorchester v. Webb, Sir W. 
 Jones, 345. Rawlinson v. Shaw, 
 3 Term Ptep. 557.
 
 236 
 
 BOOK THE FOURTH. 
 
 OF PEOBATE. 
 
 CHAPTER THE FIRST. 
 
 OF THE NECESSITY OF OBTAINING PROBATE IN THE PROBATE 
 DIVISION OF THE HIGH COURT OF JUSTICE, AND OF THE 
 JURISDICTION AND AUTHORITY OF THAT COURT : AND 
 THEREWITH OF THE ACTS AND LIABILITIES OF AN EXE- 
 CUTOR BEFORE PROBATE. 
 
 The Ecclesi- 
 astical Court 
 was formerly 
 the only Court 
 in which the 
 validity of a 
 Will of per- 
 sonalty could 
 lie established 
 or disputed. 
 
 SECTION I. 
 The Will must he i^roved in the Probate Division. 
 
 JLT appears to have been a subject of much controversy, 
 whether the probate of Wills was originally a matter of 
 exclusive ecclesiastical jurisdiction (a). But whatever may 
 have been the case in earlier times, it is certain that, at the 
 time of the passing of the Court of Probate Act (stat. 20 & 21 
 Vict. c. 77), the Ecclesiastical Court was the only Court in 
 which the validity of Wills of personalty, or of any testa- 
 mentary paper whatever relating to personalty, could be 
 established or disputed (h). An exception to this general 
 rule was to be found in the case of certain Courts Baron that 
 had had probate of Wills time out of mind, and had always 
 continued that usa^e. 
 
 (a) Bac. Abr. Exors. (E.) 1. 
 Dyke v. Walford, 5 Moo. P. C. 
 434. 
 
 (b) Fonblanq. Treat, on Eq. Pt. 
 2, c. 1, s. 1, note (a). Bac. Abr. 
 Exors. (E.) 1. Post, Pt. i. Bk. v. 
 
 Cli. I. Gascoyne v. Chandler, 2 
 Cas. temp. Lee, 241. See post, 
 Pt. I. Bk. IV. Ch. II. § IX., as to 
 the general qnestion, of what in- 
 struments probate is necessary.
 
 Ch. I. § I.] Of the Probate of Wills. 237 
 
 Regularly the Court in which the testament of a deceased In which of the 
 person ought to have been proved was the Court of the coSrtsThe''''* 
 Ordinary of the place wherein the testator dwelt, i.e., generally ^^^' ^^^ *° ^^ 
 speaking the bishop of the diocese. 
 
 But if the deceased, at the time of his death, had effects to 
 such an amount as to be considered notable goods, usually 
 called hona notabilia, within some other diocese or peculiar (c) 
 than that in which he died, then the "Will must have been 
 proved before the Metropolitan of the province by way of 
 special prerogative {d) ; whence the Courts where the validity 
 of such Wills was tried, and the offices where they were 
 registered, were called the Prerogative Courts and the Pre- 
 rogative Offices of Canterbury and York {c). 
 
 But by stat. 20 & 21 Vict. c. 77 (intituled An Act to 20 & 21 Vict. 
 amend the Laiv relating to Probates and Letters of Adminis- Tevtamentar - 
 tration in England), after reciting that " it is expedient that and other ju- 
 
 . -^ risdictions of 
 
 all jurisdiction in relation to the grant and revocation of pro- Ecclesiastical 
 bates of Wills and letters of administration in England should couits ^^ 
 be exercised in the name of her Majesty in one court," it is ''^'^o^^^'^ed. 
 enacted by sect. 3, that " the voluntary and contentious juris- 
 diction and authority of all ecclesiastical, royal peculiar, 
 peculiar, manorial, and other courts and persons in England, 
 now having jurisdiction or authority to grant or revoke pro- 
 bate of Wills or letters of administration of the effects of 
 deceased persons, shall, in respect 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 le exercised by any such 
 court or person." 
 
 And by sect. 4, " The voluntary and contentious jurisdic- s. 4. Testa- 
 mentary 
 
 (c) "Peculiars were certain (c) With regard to the jurisdic- 
 
 districts exempt from the jurisdic- tion and autliority exercised prior 
 
 tion of the Ordinary of the Diocese to the jiassing of the Court of 
 
 in which they lay, and were so Probate Act by the Ecclesiastical 
 
 called because they had a 'peculiar Courts, see the former editions of 
 
 and special Ordinary of their own. this "Work : Pt. I, Bk. iv. Ch. i. 
 
 (d) 4 Inst. 335. § i.
 
 238 
 
 Of the Probate of Wills. [Ft. i. Bk. iv. 
 
 jurisdiction to 
 be exercised in 
 the Queen's 
 name by a 
 Court of 
 Probate. 
 
 S. 23. The 
 
 Court to have 
 throughout all 
 England the 
 same powers 
 as the Pre- 
 rogative Court 
 within the 
 province of 
 Canterbury. 
 
 tion and authority in relation to the granting or revoking 
 probate of "Wills and letters of administration of the effects of 
 deceased (/) persons now vested 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 {g), 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 and Middlesex as her Majesty in council 
 shall from time to time appoint." 
 
 And by sect. 23j, " 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 England of deceased persons, as the Prerogative Court of 
 the Archbishop 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 other- 
 wise 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 distribution of residue, shall be entertained by 
 
 (/) By the interpretation clause, 
 sect. 2, " ' Will ' shall comprehend 
 * Testament,' and all other testa- 
 mentary instruments of which 
 probate may now be granted, and 
 ' Administration ' shall compre- 
 hend all letters of administration 
 of the effects of deceased persons, 
 •whether with or without the WiU 
 
 annexed, and whether granted for 
 general, special, or limited pur- 
 poses." 
 
 {g) By the interpretation clause, 
 sect. 2, " ' Matters and causes tes- 
 tamentary' shall comprehend all 
 matters and causes relating to the 
 grant and revocation of probate of 
 Wills or of administration."
 
 Cli. I. § I.] In ivhat Court it must he obtained. 23i) 
 
 the Court or by any Court or person whose jurisdiction as to 
 matters and causes testamentary is hereby abolished." 
 
 Hence it appears that the exclusive jurisdiction in the Court of Pro- 
 probate of Wills and granting of administration, which formerly tutecffor\Vi 
 belonged to the Ecclesiastical Courts, was completely and Ecclesiastical 
 
 Courts 
 
 universally throughout England transferred to the newly universallj'. 
 
 created Court of Probate (//). 
 
 Now by the Supreme Court of Judicature Act, 1873 [which 36 & 37 Vict. 
 
 commenced on Nov. 1, 1875], the existing Courts therein '^' ' 
 
 -r> 1 Court of Pro- 
 
 named (of which the Court of Probate was one) were united bate to form a 
 
 and consolidated together as one Supreme Court of Judicature Hi^'h Comt of 
 in England (sect. 3). '^^'^^i'^e. 
 
 This Supreme Court consists of two Divisions : — 
 
 (1.) "Her Majesty's High Court of Justice," exercising 
 original jurisdiction. 
 
 (2.) " Her Majesty's Court of Appeal," exercising appellate 
 jurisdiction (sect. 4). 
 
 The "High Court of Justice" is a Superior Court of jurisdiction of 
 Record, and to it is transferred and in it is vested, amongst ?'^'"'^* °^ ^'"°" 
 
 ' <^ oate trans- 
 
 other jurisdictions, that which was vested or capable of being fei'^'i to High 
 
 exercised by the Court of Probate at the commencement of Justice. 
 
 the Act. The jurisdiction so transferred to the High Court 
 
 includes the jurisdiction which at the commencement of the 
 
 Act was vested in or capable of being exercised by the judge 
 
 of the Court of Probate sitting in Court, or Chambers, or 
 
 elsewhere, when acting as a judge in pursuance of any statute, 
 
 law, or custom, and all powers given to the Court of Probate 
 
 Qi) By sect. 23, all suits pend- to tlie Court of Probate, and all 
 
 ing at the time of the Act, in any oaths and honds sworn and exe- 
 
 Court in England, respecting any cuted as required by any Ecclesi- 
 
 grant of probate or administration astical Court in reference to such 
 
 shall be transferred to the Court of business, prior to Jan. 11, 1858 
 
 Probate (but this enactment is not (the day when the Court of Pro- 
 
 to apply to the Privy Council). bate Act, 1857, came into opera- 
 
 And by stat. 21 & 22 Vict. c. 95, tion) shall be as effectual as if 
 
 8. 14, in the same way all non- sworn or executed in pursuance of 
 
 contentious business also shall be the Court of Probate Act or this 
 
 deemed to have been transferred Act.
 
 240 
 
 Jurisdiction of 
 Probate Divi- 
 sion : how 
 exercised in 
 Procedure and 
 Practice. 
 
 Exclusive 
 jurisdiction of 
 Probate Di^i- 
 
 Of the Probate of Wills. [Pt. i. Bk. iv. 
 
 or to the judge of that Court hy any statute, and also all 
 ministerial powers, duties, aud authorities incident to any 
 and every part of the jurisdiction so transferred (sect. 16). 
 
 The jurisdiction of the Court of Prohate which by the Act 
 was transferred to and vested in the High Court from and 
 after the commencement of the Act, ceased to be exercised 
 except by the " High Court of Justice" as provided by the 
 Act (sect. 22). 
 
 The jurisdiction of the Court of Probate transferred to the 
 " High Court of Justice " is exercised (so far as regards pro- 
 cedure and practice) in the manner provided by the Act or by 
 such Rules and Orders of Court as may be made from time 
 to time pursuant to the Act, and where no special provision is 
 contained in the Act or in any such Rules or Orders of Court 
 with reference thereto, the jurisdiction is exercised as nearly 
 as may be in the same manner as the same might have been 
 exercised in the Court of Probate previously to the commence- 
 ment of the Act (sect. 23). 
 
 The " High Court of Justice " consists of three Divisions, of 
 which one is the '* Probate, Divorce, and Admiralty Division " 
 (sect. 31 ; Order in Council, 16 December, 1880). 
 
 To the "Probate, Divorce, and Admiralty Division" are 
 assigned all causes and matters which would have been within 
 the exclusive cognisance of the Court of Probate if the Act 
 had not passed (sect. 31). 
 
 Although all matters which prior to the passing of the 
 Judicature Act would have been within the exclusive cog- 
 nisance of the Court of Probate are assigned by that Act to 
 the Probate Division of the High Court, still, inasmuch as all 
 judges of the High Court by the powers given to them by 
 that Act have the same jurisdiction, it seems to follow that 
 any judge, whether of the Queen's Bench or Chancery 
 Division, may in his discretion exercise jurisdiction in any 
 matter which is assignable to the Probate Division. But, 
 although, according to this principle a judge in the Chancery 
 Division has jurisdiction to grant probate of a Will, it would 
 appear for many reasons to be so inconvenient that any judge
 
 Ch. I. § I.] In what Court it must he ohtained. 241 
 
 except a judge in the Probate Division should grant probate, 
 that the judge in the Chancery Division, if requested to 
 exercise such jurisdiction, would use a sound discretion in 
 refusing to do so, and in directing the parties to obtain probate 
 in the Division to which such matters have been assigned. 
 This view that the Chancery Division has jurisdiction, if it 
 thinks fit to exercise it, was adopted by Sir George Jessel, M.R., 
 in the case of Pinney v. Hunt (i), and followed by Pearson, J., 
 in Bradford v. Young (k). On the other hand, in the case of 
 Priestnian v. Thomas (l), Sir James Hannen in his judgment 
 is reported to have said: "It is further contended that the 
 plaintifi", if entitled to have the probate of the Will revoked, 
 ought to have claimed it in the action in the Chancery Divi- 
 sion. But I am of opinion that he could not properly have 
 done so, as the granting or revoking of probates was within 
 the exclusive cognizance of the Court of Probate, and is 
 therefore now assigned to this Division." And this view 
 seems to have met with the approval of Cotton, L.J., who in 
 his judgment in the same case when before the Court of 
 Appeal (ni) said, that " The object sought by that action (to 
 wit, a revocation of probate) was not within the jurisdiction of 
 the Chancery Division." 
 
 It is to be observed that section 11 of the Judicature 38 & 39 Vict. 
 
 c 77 s 11. 
 Act, 1875, which gives a person, commencing any action or " ' ' 
 
 matter in the High Court, liberty, (subject to the Kules 
 of Court and the provisions in the Judicature Acts, and 
 to the power of transfer) to assign the action to one of 
 the Divisions of the High Court "as he may think fit," 
 goes on to provide that if he assign the action to a Division 
 to which, according to the Rules of Court or the provi- 
 sions of the Acts, it ought not to be assigned to, a judge of 
 such Division, even though application is made to him to 
 direct a transfer of the action or matter to the Division 
 to which it ought to have been assigned, may retain the 
 
 {i) 6 C. D. 98. (0 9 P. D. 70, 210. 
 
 {k) 26 C. D. 656. (m) 9 P. D. 210, 214. 
 
 W.E. — VOL. I. R
 
 242 Of the Probate of Wills. [Pt. i. Bk. iv. 
 
 same, if lie think it expedient so to do, in the Division in 
 which it was commenced. The section further provides that 
 (suhject to the Rules of Court) a person commencing any cause 
 or matter shall not assign the same to the Probate, Divorce 
 and Admiralty Division, unless he would have been entitled to 
 commence the same in the Court of Probate, or in the Court 
 for Divorce and Matrimonial Causes, or in the High Court of 
 Admiralty, if the Judicature Act had not been passed. It 
 will be noticed that the section is silent as to the converse 
 proposition, viz., the commencing, in a Division other than 
 the Probate Division, of an action or matter which, before the 
 Judicature Acts, would have been commenced in the Court of 
 Probate, and in that Court alone ; and it may reasonably be 
 inferred that the Act advisedly left open such a course of 
 procedure, while specifically forbidding a person to commence 
 an action or cause in the Probate Division, of such a nature 
 as would not have come within the exclusive jurisdiction of 
 the Court of Probate in former days. 
 The executor The practical consequence is, that an executor cannot 
 
 cannot rely on , . . , . „ . , , . , 
 
 his title in any assert or rely on his right m any Court without showing that 
 out* th^ pro- ^^ ^^^ previously established it in the Probate Division : the 
 auction of the usual proof of which is, the production of a copy of the Will 
 
 1)T'003.XG. 
 
 by which he is appointed, certified under the seal of the 
 The Probate. Court. Tliis is usually called the probate, or the letters 
 testamentary. In other words, nothing but the probate, (or 
 letters of administration with the Will annexed, when no 
 executor is the^-ein appointed, or the appointment of executor 
 fails,) or other proof tantamount thereto of the admission of 
 the Will in the Probate Division is legal evidence of the 
 Will in any question respecting personalty (/t). The Will of 
 a deceased Sovereign of the realm is no exception to this rule, 
 
 (n) If a Will be made in a the Will here : Lee v. Moore, 
 
 foreign country, and proved there, Palm. 165. Tourton v. Flower, 3 
 
 disposing of goods in England, the P. Wms. 370. See fost^ Pt. i. 
 
 executor cannot have action on Bk. iv. Ch. ii. § vi. 
 such probate, but ought to prove
 
 Cli. I. § I.] Thi^ Prolate Division. 243 
 
 notwithstanding (as it has already appeared (o) ) no probate 
 of such a Will can be granted by the Court (jy). 
 
 The probate is, however, merely operative as the authen- An executor 
 ticated evidence, and not at all as the foundation, of the titirfrom tte 
 executor's title : for he derives all his interest from the Will V'^ ^'^,*^ ^°^ 
 
 the probate : 
 
 itself, and the property of the deceased vests in him from the 
 moment of the testator's death (q). Hence the probate, when U-elation of the 
 produced, is said to have relation to the time of the testator's 'fctator's° 
 death (r). 'leath. 
 
 It should further be observed that a Court of Equity con- Courts of 
 siders an executor as trustee for the legatees in respect to courts of 
 their legacies, and, in certain cases, as trustee for the next of '^on^tr'.iction 
 
 ° ' ' of W ills : 
 
 kin of the undisposed-of surplus : and as all trusts are the 
 
 peculiar objects of equitable cognizance. Courts of Equity 
 
 will compel the executor to perform these his testamentary 
 
 trusts with propriety. Hence, although in those Courts, as 
 
 well as in Courts of Law, the seal of the Court of Probate 
 
 is conclusive evidence of the factum of a Will (s), an 
 
 equitable jurisdiction has arisen of construing the Will, in 
 
 order to enforce a proper performance of the trusts of the 
 
 executor. The Courts of Equity are consequently sometimes 
 
 called Courts of Construction, in contradistinction to the Court 
 
 of Probate. 
 
 It should be observed, that as long as the' Ecclesiastical and so were the 
 
 Ecclesiastical 
 Courts had the exclusive testamentary jurisdiction, they were Courts : 
 
 also Courts of Construction as well as Courts of Probate, 
 
 because suits for legacies might have been brought therein. 
 
 Indeed, the cognizance of legacies in former times belonged 
 
 exclusively to the ecclesiastical j urisdiction ; for the Court of 
 
 Chancery, till Lord Nottingham extended the system of 
 
 equitable jurisprudence, administered no relief to legatees (/). 
 
 (o) Ante,]}. 11. edition. Whitehead v. Taylor, 10 
 
 (p) Kyves v. Duke of Welling- A. & E. 210. Ingle v. Richards, 28 
 
 ton, 9 Beav. 579. Beav. 366. 
 
 (q) Smith v. Milles, 1 T. R. 475, (s) Scc^wsi, Pt. r. Bk. vr. Ch. i. 
 
 480. (t) Decks v. Strutt, 5 T. R. 690, 
 
 (r) Went. Off. Ex. IIT), 14th 692. 
 
 R 2
 
 244 
 
 Of the Prolate of Wills, [Pt. i. Bk. iv. 
 
 but the Court 
 of Probate was 
 not : 
 
 nor is tlie Pro- 
 bate Division 
 of the High 
 Court of 
 Justice. 
 
 38 & 39 Vict. 
 c. 77, s. 11 
 (sub-s. 3). 
 
 21 & 22 Tict. 
 c. 77, s. 24. 
 Power of Court 
 of Probate to 
 examine wit- 
 nesses. 
 
 As to produc- 
 tion of deeds, 
 
 But the Court of Probate was not a Court of Construction ; 
 for, as it has already appeared (»), the 23rd section of the 
 Act by which it was created expressly prohibited it from 
 entertaining any such suit. The same observations would 
 seem to apply to the Probate Division of the High Court 
 of Justice, for by sect. 34 of the Judicature Act, 1873, 
 all causes and matters which would have been within the 
 exclusive cognizance of the Court of Probate are assigned to 
 the Probate Division of the High Court, and by the same 
 section all causes and matters " for the administration of the 
 estates of deceased persons." and for "the execution of trusts 
 charitable or private " are assigned to the Chancery Division 
 of the High Court. 
 
 And by sect. 11 (sub-s. 3) of the Judicature Act of 1875, it 
 was enacted that, subject to rules of Court, a person com- 
 mencing any cause or matter shall not assign the same to the 
 Probate Division, unless he would have been entitled to com- 
 mence the same in the Court of Probate. 
 
 By section 24 of the Court of Probate Act, " The Court of 
 Probate may require the attendance of any party in person, or 
 of any person whom it may think fit to examine or cause to 
 be examined in any suit or other proceeding in respect of 
 matters, or causes testamentary {x), and may examine, or 
 cause to be examined, upon oath or afiirmation, as the case 
 may require, parties and witnesses by word of mouth ; and 
 may either before or after, or with or without such examina- 
 tion, cause them or any of them to be examined on interroga- 
 tories, or receive their or any of their affidavits or solemn 
 affirmations, as the case may be ; and the Court may by writs 
 require such attendance, and order to be produced before itself 
 
 (u) Ante, pp. 238, 239. 
 
 (x) Where an executor was desi- 
 rous to propound in solemn form the 
 last Will of his testator, and cited 
 certain next-of-kin, but was unable 
 to ascertain what other persons 
 were entitled in the distribution, 
 the Court, under this section, 
 
 ordered a subpcena to issue for the 
 attendance of certain persons, to be 
 examined as to their knowledge of 
 the members of the family and the 
 other next-of-kin of the deceased. 
 Shepheard v. Beetham, L. R 2 P. 
 & D. 384. In the goods of Sweet, 
 [1891] P. 400.
 
 Cli. I. § I,] Powers, &c., of the Probate Division. 245 
 
 or otherwise any deeds, evidences, or writings, in the same 
 form, or nearly as may he, as that in which a writ oi subpoena 
 ml testificandum, or of suhpcena 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 Court, and also be liable to forfeit a sum 
 not exceeding one hundred pounds." 
 
 By section 25, " The Court of Probate shall have the like Sect. 25. 
 powers, jurisdiction and authority, for enforcing the attend- coiut to en- 
 ance of persons required by it as aforesaid ; and for punishing ^°'''^^ orders, 
 persons failing, neglecting, or refusing to produce deeds, 
 evidences, or writings, or refusing to appear or to be sworn, 
 or make affirmation 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 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." 
 
 By Stat. 21 & 22 Vict. c. 95, s. 17, "The Judge of the 21 & 22 Vict. 
 
 c 95 s. 17. 
 Court of Probate shall have and exercise the same power ju,ige of the 
 
 of altering and amending grants of probate and letters of P*^"'^* ° 
 
 o Ob 1 ),ate may 
 
 administration, made before January 11, 1858 (?/), as any amend grants 
 
 , , made before 
 
 Ecclesiastical Court had and exercised in respect of such Jan. 11, 1858. 
 grants." 
 
 In order to meet the case of grants made before the Act, biases of grants 
 
 void or void- 
 
 which were void or voidable by reason of the Courts not having able by reason 
 jurisdiction {z), and also of grants which, though not void or jj7j-a'ii^ade *" 
 
 voidable, were not sufficiently extensive by reason of not ^^°^^ ^^^e 
 
 ' •' , •^. Probate Act. 
 
 reaching property situate out of the jurisdiction of the Court 
 
 that made the grant, j^rovision is made by sections 86, 87 
 
 and 88 of the Probate Act, 1857 (20 & 21 Vict. c. 77). 
 
 By Stat. 21 & 22 Vict. c. 95, s. 20, "All second and 21 & 22 Vict. 
 
 c. 95, s. 20. 
 
 Second and 
 {y) The Day when the Court of ration. 
 Probate Act, 1857, came into ope- (2) See ante, p. 237.
 
 246 
 
 Of the Prohate of Wills. [Ft. i. Bk. iv, 
 
 subsequent 
 grants to lie 
 maile where 
 the original 
 Will or the 
 original letters 
 of administra- 
 tion are 
 deposited. 
 
 Jurisdiction of 
 County Courts 
 in contentious 
 business. 
 
 Stat. 21 & 22 
 Vict. c. 95, 
 s. 10. 
 
 Where per- 
 sonalty is 
 under 200?., 
 County Court 
 to have distri- 
 bution. 
 
 subsequent grants of probate or letters of administration 
 shall be made in the Principal Registry, or in the District 
 Registry where the original Will is registered or the original 
 grant of letters of administration has been made, or in the 
 District Registry to which the original Will or a registered 
 copy thereof, or the record of the original grant of adminis- 
 tration, have been transmitted by virtue of a requisition 
 issued in pursuance of section eighty-nine of ' The Court of 
 Probate Act,' and for and in respect of such second or sub- 
 sequent grants of probate or letters of administration to be 
 made in a district registry, it shall not be requisite that it 
 should appear by affidavit that the testator or intestate had a 
 fixed place of abode within the district in which the applica- 
 tion is made." 
 
 County Courts have jurisdiction in all contentious business, 
 i.e., grants or revocation of grants of probate or letters of 
 administration, provided (1) the deceased had at the time of 
 his death his fixed place of abode in the district of the 
 County Court to which application is made ; and (2) the 
 personal estate of the deceased (exclusive of property pos- 
 sessed by him as trustee and debts due from him) was at his 
 death under the value of 200/., and his real estate to which 
 he w^as beneficially entitled was under 300Z. (rt), for by stat. 21 
 it 22 Vict. c. 95, s. 10, it was enacted that where "it appears 
 by affidavit to the satisfaction of a registrar of the principal 
 registry, that the testator or intestate, in respect of whose 
 estate a grant or revocation of a grant of probate or letters 
 of administration is applied for, had at the time of his death 
 his fixed place of abode in one of the districts specified in 
 Schedule (A.) to the said ' Court of Probate Act,' and that 
 the personal estate in respect of which such probate or letters 
 of administration are to be or have been granted, exclusive of 
 what the deceased may have been possessed of or entitled to 
 as a trustee, and not beneficially, but without deducting any- 
 
 (a) i.e., the actual vahie of the other charges. Davies r. Breck- 
 property free from mortgages or nell, L. R. 2 P. & D. 177.
 
 Cli. I. § i.J In the County Courts. 247 
 
 thing on account of the debts due and owing from the deceased, 
 was at the time of his death under the value of 200Z., and 
 that the deceased at the time of his death was not seized or 
 entitled beneficially of or to any real estate of the value of 
 300/. or upwards, the judge of the County Court having 
 jurisdiction in the place in which the deceased had at the time 
 of his or her death a fixed place of abode shall have the 
 contentious jurisdiction and authority of the Court of Probate 
 in respect of questions as to the grant and revocation of 
 probate of the Will or letters of administration of the eflects 
 of such deceased person, in case there be any contention in 
 relation thereto." 
 
 The Probate Division has power in cases where, in any con- Power lo remit 
 tentious business arising out of an application for probate or court!" ^ 
 administration, it is shown that the state of property and 
 place of abode of the deceased were such as to give con- 
 tentious jurisdiction to the judge of a County Court, to send 
 the cause to such County Court, and the judge of such County 
 Court shall proceed therein as if such application and cause 
 had been made to, and arisen in, his Court in the first 
 instance {h). See 20 & 21 Vict. c. 77, s. 59 [extended to 
 applications for the revocation of a grant of probate or adminis- 
 tration, 21 & 22 Vict. c. 95, s. 12]. 
 
 Sections 55, 56, 57 and 59 of the Probate Act [stat. 20 & Stat. 20 & 21 
 21 Vict. c. 77], and sects. 10, 12 and 13 of the amending Act ss^^ss! 56,'5r, 
 [stat. 21 & 22 Vict. c. 95] relate to the jurisdiction of County ^^'^ ^'^• 
 Courts in contentious business. The rules of practice regu- yict. c. 95, 
 lating applications in respect of such contentious business in ^^'i^?.,^^' 
 County Courts are contained in Order XLIX. of the County County Court 
 Court Rules, 1889, and it is provided by rule 12 of this ^rd'^xS' 
 Order that in proceedings under this Order, for which no 
 Rules are hereby provided, the Rules and practice of the 
 High Court shall be followed as far as they are applicable. 
 
 (6) See Slater v. Alvey, L. R. 2 against the wish of all parties, see 
 
 P. & D. 154. As to the discretion Dunn v. Dunn, 1 Sw. & Tr. 521, 
 
 of the Court to direct a trial of a and Bull v. Bull, 30 L. J., P. & M. 
 
 probate cause in the County Court 40n.
 
 248 
 
 Of the Prolate of WiUs. [Pt. i. Bk. iv. 
 
 Stat. 20 & 21 
 Vict. c. 77, 
 3. 58. 
 
 Appeals from 
 County Court : 
 
 to Divisional 
 
 Court. 
 
 R. S. C, 1883, 
 
 Ord. LIX., 
 
 r. 4. 
 
 Jurisdiction of 
 County Courts 
 in non-conten- 
 tious business. 
 
 Stat. 36 & 37 
 Vict. c. 52, 
 s. 1 : 
 
 It should be observed that the above jurisdiction given to 
 County Courts, in instances to which it extends, is concurrent 
 with that of the Probate Division of the High Court, and not 
 exclusive. See 20 & 21 Vict. c. 77, s. 59, and 21 & 22 Vict. 
 c. 95, s. 12. 
 
 By sect. 58 of the Probate Act [stat. 20 & 21 Vict. c. 77] 
 it was enacted, that " any party who shall be dissatisfied with 
 the determination 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 Eules and 
 Orders to be made under this Act, and the decisions of the 
 Court of Probate on such appeal shall be final "(c). 
 
 The appeal from the County Court under this section is 
 now to a Divisional Court of the Probate, Divorce and 
 Admiralty Division of the High Court of Justice. R. S. C. 
 1883, Order LIX., rule 4. 
 
 As to the Probate Jurisdiction of County Courts in non- 
 contentious business, it has been enacted by stat. 36 & 37 
 Vict. c. 52, that— 
 
 " Where the whole estate and effects of an intestate shall 
 not exceed in value the sum of lOOL, his widow or any one or 
 more of his children, provided such widow or children respec- 
 tively shall reside at a distance exceeding three miles from 
 the Registry of the Court of Probate having jurisdiction in 
 the matter, may apply to the Registrar of the County Court 
 within the district of which the intestate had his fixed place 
 of abode at the time of his death, and the said Registrar shall 
 fill up the usual papers required by the Court of Probate to 
 lead to a grant of letters of administration of the estate and 
 effects of the said intestate, and shall swear the applicant and 
 attest the execution of the administration bond according to 
 the practice of the Court of Probate, and shall then transmit 
 
 (c) And see Zealley v. Veryard, 
 L. R. 1 P. & D. 195. Macleur v. 
 
 Macleur, L. R. 1 P. & D. 604.
 
 Cli. I. § I.] In the County Courts. 249 
 
 the said papers by post to the Registrar of the Court of 
 Probate having jurisdiction in the matter, who shall in due 
 course make out and seal the letters of administration of the 
 estate and effects of the said intestate, and transmit them by 
 post to the said Registrar of the County Court, to be by him 
 delivered to the party so applying for the same, without the 
 payment of any fee for the same, save as is provided by this 
 Act " (sect. 1). 
 
 " The Registrar of the County Court may require such s. 2 : 
 proof as he may think sufficient to establish the identity and 
 relationship of the applicant " (sect. 2). 
 
 " If the Registrar of the County Court has reason to s. 3 : 
 believe that the whole estate and effects of which the deceased 
 died possessed exceeds in value 100^., he shall refuse to 
 proceed with the application until he is satisfied as to the real 
 value thereof" (sect. 3). 
 
 By sect. 4, Registrars of County Courts may exercise the s. 4. 
 powers of Commissioners of the Court of Probate. 
 
 " And the Act of 1875 (stat. 38 & 39 Vict. c. 27), which is Stat. 38 & 39 
 to be read and construed along with and as part of the above Extension of 
 recited Act (sect. 2), extends the provisions of the above Act ^'^^^^^ ^°*- 
 to the surviving children of poor ividoics who die intestate ' 
 (sect. 1). 
 
 SECTION II. 
 
 What the Executor may do before Probate. 
 
 Upon the principles stated in the course of the preceding 
 
 section (p. 243), it has been held that the executor, before he » 
 
 proves the Will, may do almost all the acts which are 
 
 incident to his ofl&ce, except only some of those which relate 
 
 to suits {e). Thus he may seize and take into his hands any What executor 
 
 may do before 
 probate. 
 
 (e) Goilolph. Pt. 2, c. 20, s. 1. Wankford v. Waiikford, 1 Salk. 
 Wentw. Off. Ex. 81, 14th edition. 301. Humphreys v. Ingledon, 1 P. 
 Treat, on Eq. B. 4, Pt. 2, c. 1, 9. 2. Wnis. 753.
 
 250 
 
 Of the Probate of Wills. [Pt. i. Bk. iv. 
 
 These acts 
 stand good, 
 though he die 
 without prov- 
 ing the Will. 
 
 ; of the testator's effects (/), and be may enter peaceably into 
 tbe bouse of tbe beir, for tbat purpose, and to take specialties 
 and other securities for the debts due to tbe deceased ((/). He 
 may pay, or take releases of, debts owing from the estate (/?); 
 and he may receive or release debts which are owing to it {€) ; 
 -and distrain for rent due to tbe testator {k). And if, before 
 probate, tbe day occur for payment upon bond made by, or to, 
 the testator, payment must be made to, or by, tbe executor, 
 though tbe Will be not proved, upon like penalty as if it 
 .were {I). So he may sell, give away, or otherwise dispose, at 
 his discretion, of the goods and chattels of tbe testator, before 
 .probate {m) ; he may assent to, or pay, legacies {n) ; he may 
 enter on the testator's terms for years (o), and he may gain a 
 settlement by residing in the parish where tbe land lies {p). 
 
 And although be should die, after any of these acts done, 
 without proving the Will, yet do these acts so done stand 
 firm and good {q). Where a termor devised his term to 
 another whom he made his executor and died ; and the 
 
 (/) Godolph. Pt. 2, c. 20, s. 1. 
 Wentw. Off. Ex. 81, 14th edition. 
 
 {(j) Godolph. Pt. 2, c. 20, s. 3. 
 Wentw. Off. Ex. 81, 14th edition. 
 
 (/),) Godolph. Pt. 2, c. 20, s. 3. 
 Wentw. Off. Ex. 81, 14th edition. 
 
 {i) Co. Litt. 292, h. Grays- 
 brook V. Fox, Plowd. 281. Mid- 
 dleton's case, 5 Co. 28, a. Godolph. 
 Pt. 2, c. 20, s. 1. Wentw. Off. Ex. 
 81, 14th edition. Wankford v. 
 Wankford, 1 Salk. 306, 307. Wills 
 V. Rich, 2 Atk. 285. 
 
 {k) Whitehead v. Taylor, 10 A. 
 & E. 210. 
 
 (0 Godolph. Pt. 2, c. 2, s. 3, 
 Wentw. Off. Ex. 18, 14th edition. 
 The penalty is now saved by bring- 
 ing tlie principal and interest and 
 costs into Court, under stat. 4 Ann, 
 c. 3, 16, Ruff. § 13. 
 
 (m) Godolph. Pt. 2, c. 20, s. 3. 
 Wentw. Off. Ex. 82, 14th edition. 
 
 He may release or assign any part 
 of the personal estate before pro- 
 bate : By Lord ^Macclesfield, 1 P. 
 Wms. 768, Comber's case. It is 
 consequently no objection to the 
 title of an as.?ignee of a patent, 
 that the assignors, the executors 
 of the grantee, had omitted to re- 
 gister the probate until after the 
 date of the assignment ; El wood v. 
 Christy, 17 C. B., N. S. 754. 
 
 (n) Godolph. Pt. 2, c. 29, s. 1. 
 Wentw. Off. Ex. 82, 14th edition. 
 
 (o) Rex V. Stone, 6 T. R. 298. 
 Dyer, 367, a. And the executor 
 of the grantee of the next avoid- 
 ance of a church may grant the 
 advowson before probate : Smith- 
 ley r. Chomeley, Dyer, 135 a. 
 
 (p) Rex V. Stone, 6 T. R. 295. 
 
 (q) Wentw. Off. Ex. 82, 14th 
 edit. Brazier v. Hudson, 8 Sim. 67.
 
 Ch. I. § ii.'\Of the acts of an Executor before Prolate. 251 
 
 devisee entered and died without any probate ; it was held 
 that the term was legally vested in the executor by his entry, 
 and an execution of the devise, without any probate (r). So 
 if an executor assents to a legacy, and dies before probate, 
 yet the assent is good enough (s). So all payments made to 
 him are good, and shall not be defeated, though he dies and 
 never proves the Will (t). In a word, the executor's not 
 proving the Will does, upon his death, determine the 
 executorship, but not avoid it (ii). 
 
 It must, however, be carefully observed in this place, that If acts done by 
 although an executor may, before probate, by assignment of a before probate 
 term for years, or other chattel of a testator, or by an assent f^ ^?}^^'^ °" 
 
 •^ •'for title ov 
 
 to a specific legacy, give a valid title to the assignee or legatee ; sought to be 
 yet, if it be necessary to support that title by deducing it from subsequent 
 the assignment or assent, it also becomes requisite to show ^rshown""''^ 
 the right to make the assignment or give the assent ; which 
 can only be effected by producing the probate, or other evi- 
 dence of the admission of the Will in the Court : for, as it 
 has already appeared, the fact of a particular person having 
 been appointed executor to another can be proved by no other 
 means, either in courts of law or equity (x). If the executor 
 died after the assignment or assent, without having obtained 
 probate, letters of administration cum testamento annexo must 
 be produced instead (?/). 
 
 Again, although an executor can, before probate, make an 
 assignment and give a receipt for purchase-money, which are 
 binding, yet a purchaser is not bound to pay the purchase- 
 
 (7-) Dyer, 367, a. Rex v. Stone, after having intermeddled witli 
 
 6 T. R. 298. Fenton v. Clegg, 9 his goods, but before probate, and 
 
 Exch. 6S0. before any election made to retain, 
 
 (.s) Johnson v. Warwick, 17 C. B. the executor of the executor may 
 
 510. retain ; see Croft v. Pyke, 3 P. Wms. 
 
 it) Wankford v. Wankford, 1 182, and ^os<, Pt. ill. Bk. ii. Ch. ii. 
 
 Salk. 306, 507. § vi. 
 
 (m) By Lord Holt, in Wankford (a;) See ante, p. 242. 
 
 V. Wankford, 1 Salk. 309. Qiuere, (>j) Johnson v. Warwick, 17 C. 
 
 whether, when a debtor makes B. 516. 
 his creditor his executor, who dies
 
 •252 
 
 Of the Probate of Wills. [Pt. i. Bk. iv, 
 
 He cannot 
 maintain ac- 
 tions before 
 probate : 
 
 money till probate, because, till the evidence of title exists, 
 the executor cannot give a complete indemnity (z). 
 
 An executor cannot maintain actions before probate unless 
 such as are founded on bis actual possession : for in actions 
 where he sues in his representative character, he may be 
 compelled, by the course of pleading, to produce the letters 
 testamentary at the trial, or in some cases, by an application 
 to the Court, at an earlier stage of the cause {a) ; and in those 
 actions where he sues in his individual capacity, relying on 
 his constructive possession as executor, although he does not 
 name himself as executor in his declaration, nor make any 
 profert, yet, generally speaking, it will be necessary for 
 him to prove himself executor at the trial (h), w^hich he can 
 only do by showing the probate. For example, where an 
 executor brings trespass de bonis asportatis, or trover, upon 
 his testator's possession, and a conversion in his lifetime, he 
 necessarily describes himself as executor in his declaration, 
 and his character as such may be traversed : And w^here the 
 goods w^ere taken or converted after the testator's death, 
 although, since the property in the goods draws to it a pos- 
 session in law, he may declare on this constructive possession 
 of his own, notwithstanding he has never had actual 
 possession, without naming himself executor, still, if his 
 
 (z) Newton v. Metropolitan 
 Eailway Company, 1 Dr. & Sm. 
 583. 
 
 (a) Webb v. Adkins, 14 C. B. 
 401. This case was approved and 
 followed in the late case of Tarn r. 
 Commercial Bank of Sydney, 12 Q. 
 B. D. 294, where a testatrix having 
 endorsed and delivered a bill of ex- 
 change to her bankers for collection 
 at maturity, died before the bill be- 
 came due, and her executors, before 
 probate of the Will was granted, 
 issued a writ against the bankers 
 for the return of the bill or its 
 value. The bankers were always 
 
 willing to pay over the proceeds of 
 the bill to the executors ujDon 
 production of probate. Upon the 
 defendants taking out a summons 
 for an order that all proceedings 
 in the action should be stayed 
 on the ground that the same was 
 frivolous, vexatious, and an abuse 
 of the process of the Court, it was 
 held that all proceedings in the 
 action ought to be stayed until the 
 plaintiffs obtained probate. 
 
 {h) Blainfield v. March, 7 Mod. 
 1 4 1 , by Holt, C. J. 2 Saund. 47, s. 
 note to Wilbraham v. Snow.
 
 Oh. I. § ii.[OftJie acts of an Executor he/ore Probate. 253 
 
 title to the property should be put in issue by the pleadings, 
 he must show that title as executor at the trial by producing 
 the probate, in order to prove his constructive possession (c). 
 
 In cases, indeed, where the executor has actually been except where 
 possessed of the property which is the subject of the action, actual posses- 
 before it came to the hands of the defendant, such possession ^^°^^ • 
 is, according to the general principle, of itself sufficient, with- 
 out showing any title, to establish a prima facie case, either 
 in replevin, trover or trespass, when the property has come to 
 the defendant's hands, or been converted, by tort {d), or in 
 debt or assumpsit, when the defendant has acquired it by 
 a contract with the executor {e). In such case it is evident 
 that the actual possession of the plaintiff is a iirimd facie 
 title, without reference to the circumstances under which such 
 possession has been obtained, whether as executor or by any 
 other means (/). Accordingly, in the case of Oughton v. 
 Scppings (g), a sheriff's officer had seized and sold a pony, 
 claimed by the plaintiff, a widow, under an execution against 
 a third party, who lodged with her : The action was brought 
 against the officer for money had and received, to recover the 
 amount of the sale money : It appeared that the pony had been 
 bought by the lodger for the plaintiff with money provided 
 
 (c) Hunt V. Stevens, 3 Taunt. the goods were sold as the goods 
 113 : And any defect in the pro- of the testator : Brassington v. 
 bate, e.g., the want of a proper Ault, 2 Bing. 177. The distinc- 
 stamp, will be as fatal as the non- tion above pointed out might seem 
 production : Ibid. unnecessarily laboured in the pre- 
 
 (d) Wentw. Off. Ex. 84, 14th sent Treatise, had it not been laid 
 edit. Plowd. 281, in Graysbrook down in previous works on the 
 V. Fox. See Elliott v. Kemp, 7 M. same subject as an absolute propo- 
 & W. 306, 312, 314. sition that an executor may main- 
 
 (e) Wentw. Off. Ex. 84, 85, 14th tain actions of trespass or trover, 
 edition. before probate, for such of the 
 
 (/) On this principle in a case, effects of the testator as never came 
 where three out of four executors to his actual possession, taken or 
 made a sale of the goods of their converted after the testator's de- 
 testator, it was held that the three cease. See Toller, 47. 2 Roberts, 
 might sue without naming them- on Wills, 172, 173. 
 selves executors, and without join- (g) 1 B. & Adol. 241. 
 ing tlie fourth executor ; althoiigli
 
 254 
 
 Oftlie Prolate of Wills. [Pt. i. Bk. iv. 
 
 Tior can his 
 grantee : 
 
 Lut he may 
 commence an 
 action before 
 probate : 
 
 by lior, but at that time, and for several months afterwards, 
 her husband was alive : After his death, however, the 
 plaintiff fed the pony, and paid bills for its hay and shoeing, 
 though it was used as generally by the lodger as by her : 
 No probate of "Will or letters of administration were produced: 
 It was objected, that assuming even that the plaintiff might 
 have maintained trespass for the taking of the pony, she 
 could not maintain this action, which was founded on a 
 contract ; and that the pony having been the property of the 
 husband, passed on his death to his personal representative, 
 and it had not been shown that the plaintiff was either 
 executrix or administratrix. But it was held that there was 
 evidence, though perhaps slight, that the plaintiff w^as in 
 possession of the pony at the time it was seized ; and 
 if so, since she might clearly have maintained trespass 
 against a wrong-doer, she might waive the tort, and 
 maintain this action to recover the money produced by the 
 sale (h) . 
 
 And the law is the same with respect to the grantee of the 
 executor. Accordingly, in an action of trover for a horse 
 and gig, which the plaintiff claimed as the vendee of an 
 executor, it was held, that as at the time of the trial the 
 Ecclesiastical Court had not granted probate, and the 
 executor had never had actual exclusive possession of the 
 gig and horse, the plaintiff could not make out his title, 
 though he produced the Will appointing his vendor 
 executor (i). In this case, the plaintiff and defendant both 
 claimed title to the property ; and Lord Tenterden, in his 
 address to the jury, observed, that if the plaintiff had proved a 
 clear and undisputed possession, it might have been sufficient ; 
 but it appeared that the defendant, before and after the sale 
 to the plaintiff, used the gig and horse. 
 
 But although an executor cannot maintain actions before 
 probate, except upon his actual possession, yet he may 
 
 Qh) See also Accord. White r 
 Mullett, 6 Exch. 713, 715 ; and 
 see further Waller v. Drakeford, 1 
 
 E. & B. 749. 
 
 {{) Pinney v. Piuney, 8 B. & C. 
 335.
 
 Ch. I. § u.~\Of the acts of an Executor before Probate. 255 
 
 advance in them as far as that step where the production of 
 
 the probate becomes necessary, and it will be sufficient if 
 
 he obtains the probate in time for that exigency (A,-). Thus 
 
 where he sues as executor, he may commence the action 
 
 before probate {I) : for, as it has been before observed, the 
 
 probate, although obtained after action brought, shall, when 
 
 produced, have relation to the death of the testator, so as to 
 
 perfect and consummate the AYill from that period iin). So 
 
 where a reversion of a term comes to him, he may avow in some cases 
 
 before probate for such rent as hath accrued after the death of ^^ ,i^cLre bl- 
 
 the testator («), and if such an issue is joined that it becomes ^^'"^ probate : 
 
 necessary for him to prove his title by executorship (as for 
 
 instance, if non tenuit should be pleaded), it will be sufficient 
 
 if he obtains probate in time to produce it in evidence at the 
 
 trial. So in the cases above considered, where the executor 
 
 brings an action without naming himself executor, on his 
 
 constructive possession, he may declare before probate, and if 
 
 his title to the property be put in issue by the pleadings, he 
 
 may take probate at any time before the trial, and that will 
 
 enable him to support the action (o). 
 
 (k) Wills V. Rich, 2 Atk. 285. paying the executor, the executor 
 
 Easton v. Carter, 5 Exch. 8, 14. ought not to sue, and the Court 
 
 The Court may, however, make an will stay the action if he does, 
 
 order compelling him to produce See Tarn v. Commercial Bank of 
 
 the probate upon which he founds Sydney, 12 Q. B. D. 294. 
 
 his right to maintain the action (m) Plowden, 281. 1 Roll. Abr. 
 
 or stay proceedings until he places 917, A. 2. 
 
 himself in a situation to do so. (;i) Wankford v. Wankford, 1 
 Webb V. Adkins, 14 C. B. 401. Salk. 307, per Holt, C. J. White- 
 Tarn V. Commercial Bank of head v. Taylor, 10 A. & E. 210. 
 Sydney, 12 Q. B. D. 294. (o) It is said an executor may 
 
 (l) 1 Roll. Abr. 917, A, 2. maintain a quare impedit, if he be 
 
 Martin v. Fuller, Comb. 871. entitled to the next presentation 
 
 Wankford v. Wankford, 1 Salk. of a church, which became void, 
 
 302, 303. Webb v. Adkins, 14 C. without showing forth the Will : 
 
 B. 401. But in cases where the Wentw. Off. Ex. 84, 14th edition, 
 
 defendant does not dispute his But if by the course of the plead- 
 
 liability or the title of the execu- ings it should become a part of his 
 
 tors to probate but merely requires case to prove his title, he certainly 
 
 production of the probate before can only do so by producing the
 
 256 
 
 he may com- 
 mence action 
 in Chancery 
 Division before 
 probate : 
 
 he may be 
 l^etitioning 
 creditor in 
 bankruptcy 
 before probate: 
 
 and may 
 present wind- 
 ing- up petition; 
 
 Oftlic Frohate of Wills. [Pt. i. Bk. iv. 
 
 So an executor, before probate, may commence an action in 
 the Chancery Division (the bill, however, it was formerly 
 said, must allege that he has proved the Will) (p), and the 
 subsequent probate makes the action a good one, if obtained 
 at any time before hearing (q) . 
 
 An executor can be a petitioning creditor in bankruptcy, 
 but he must obtain probate before he can get a receiving 
 order (r). 
 
 It would seem also that the executor of a creditor of a 
 company may present a winding-up petition under the Com- 
 panies Act before he has obtained probate : it being suffi- 
 cient if he has obtained probate before the hearing of the 
 petition (s) . 
 
 probate ; and it may be doubtful 
 whether the passage above cited is, 
 in any case, law, inasmuch as it 
 should seem that executors must 
 show their title in the declaration 
 in quare impedit, 
 
 (p) Humphreys v. Ingledon, 1 
 P. Wms. 753. It seems, however, 
 that an executor may, pending an 
 application for probate, bring an 
 action to protect the estate, by ob- 
 taining an injunction or otherwise, 
 although he alleges in the state- 
 ment of claim that he has not yet 
 obtained probate. See Newton v. 
 Metropolitan Railway, 1 Dr. & Sm. 
 583, infra, note (q). 
 
 (q) Humphreys v. Humphreys, 
 3 P. Wms. 351. And in the case 
 of Patten, Executrix, v. Panton, in 
 the Exchequer, 1793, it was said, 
 arguendo, that it had been deter- 
 mined by that Court aboiit three 
 years ago, that it is sufficient if the 
 probate were obtained at any time 
 before hearing : 3 Bac. Abr. 53, 
 by Gwillim, Executors (E.) 14. 
 But a plea that the executor has 
 not obtained probate was allowed, 
 on the ground that the cause 
 
 must be considered as having 
 come on to be heard : Simons v. 
 Milman, 2 Sim. 241. See also 
 Jones V. Howells, 2 Hare, 353, per 
 Wigram, V.-C. Post, Pt. v. Bk. i. 
 Ch. II. In Newton v. Metropolitan 
 Railway Company, 1 Dr. & Sm. 
 583, a bill by executors for a spe- 
 cific performance alleged, as the 
 fact was, that the executors had 
 not proved. Notice of motion for 
 an injunction was given, and at 
 that time when the motion, but 
 for the press of business, would 
 have been heard, there was no pro- 
 bate : but when the motion was 
 actually heard, the probate was in 
 Court ; and it was held by Sir R. 
 Kindersley, V.-C, that the defen- 
 dants could not resist the motion 
 upon the ground of demurrer : See 
 also Beardmore v. Gregory, 34 L. 
 J., Ch. 392. 
 
 (r) See ex parte Paddy, 3 Madd. 
 241. Rogers v. James, 7 Taunt. 
 147, ca?es decided under the old 
 Bankruptcy Acts. 
 
 («) Re Masonic & General Life 
 Assurance Co., 32 C. D. 373.
 
 Ch. I. § ii.']Of the acts of an Executor he/ore Probate. 
 
 257 
 
 On the other hand, if he have elected to administer, he he may be 
 may also, before probate, be sued at law or in equity by the probate, 
 deceased's creditors, whose rights shall not be impeded by 
 his delay, and to whom, as executor de jure or de facto, he 
 has made himself responsible (t). So an action may be com- 
 menced against an executor, before probate, by a residuary 
 legatee, for an account of the estate and effects of the testator, 
 and to have the assets secured (it)- So, before probate, an 
 executor may be compelled to discover the personal estate of 
 his testator, though a suit be pending respecting the validity 
 of the Will (x). 
 
 If an executor die before probate, although, as already if he die be- 
 
 mentioned, the acts which he may legally do before probate ^rexecutor' 
 
 stand firm and ffood, yet his executor may not prove both ^^^^'^ °°* ^^ , 
 o ' J J i executor to the 
 
 Wills, and so become executor to both the testators {y). But first testator. 
 
 administration of the goods of the first testator, with the 
 
 Will annexed to it, is to be committed to the executor 
 
 of the executor, if the first executor be residuary legatee 
 
 of the first testator ; or to such other person as may be 
 
 so appointed ; otherwise to the next of kin of the first 
 
 testator (z). 
 
 (t) Wentw. Off. Ex. 86, 87, 14th 
 edition. Plowd. 280. Toller, 49. 
 It is clear upon the grounds which 
 have already been stated ("see p. 
 228), that if he has adminis- 
 tered, he will be liable, not only 
 before probate, but though he 
 should refuse to take probate, and 
 administration should be com- 
 mitted to another. See the obser- 
 vations of Best, C. J., in Douglas 
 V. Forest, 4 Bingh. 704. 
 
 (w) Blewitt V. Blewitt, 1 Younge, 
 41. 
 
 (x) Dulwich College v. Johnson, 
 
 2 Vern. 49. See also Phipps v. 
 Steward, 1 Atk. 285. Fonbl. 
 Treat, on Eq. Bk. 4, Pt. 2, c. 1, s. 
 2, n. b. Since the passing of the 
 Judicature Acts, actions for the sole 
 purpose of obtaining discovery 
 have become very rare. 
 
 (y) Wankford v. Wankford, 1 
 Salk. 308, in Lord Holt's judgment. 
 S. C, 1 Freem. 520. 
 
 (z) Isted V. Stanley, Dyer, 372, 
 a. WentAv. Off. Ex. 82, 14th edi- 
 tion. Godolph. Pt. 1, c. 20, 6. 2. 
 See post, Pt. I. Bk. v. Ch. iii. § i. 
 
 W.E. 
 
 -VOL. I.
 
 258 
 
 CHAPTER THE SECOND. 
 
 OF THE MANNER OF OBTAINING PROBATE, AND THE PRACTICE 
 OF THE COURT WITH RESPECT THERETO. 
 
 SECTION I. 
 
 By icliom the Will should he proved : and herewith of the 
 Production and Deposit of Testamentary Papers. 
 
 Executor alone J. HE person aloue by whom the testament can be proved is 
 can pi 1 . ^j^^ executor named in it (a), whom (as before stated) the 
 Court may cite to the intent to prove the testament, and take 
 The executor upon him the execution thereof, or else to refuse the same(&). 
 trprove'^ily the This may the Court do, not only ex officio, but at the instance 
 Ordiuaiy. ^f ^^^j party having an interest, which interest is proved by 
 
 the oath of the party. 
 Citation, A citation answers two purposes : it either compels a 
 
 representation to be taken by those who are primarily entitled 
 to it, or where they do not take it, the process provides a 
 substitute for a voluntary renunciation on their part. Avail- 
 ing himself, therefore, of the rule, a person having an inferior 
 interest, but unable to procure the renunciation of the persons 
 who have the superior interest, cites all those persons who 
 have such superiority to take the required grant, or show 
 cause why it should not be made to himself. 
 
 Thus in the case of a Will, the residuary legatee cites the 
 executor " to accept or refuse the probate and execution of 
 the testator's Will, or to show cause why letters of adminis- 
 tration with the Will annexed of the personal estate of the 
 testator should not be granted to him (the residuary legatee)." 
 And if there be also a residuary legatee in trust the party 
 citant cites him " to accept or refuse letters of administration 
 
 (a) Wankford v. Wankford, 1 Godolpli. Pt. 1, c. 20, a. 2. Ante, 
 Salk. 309. p. 225. 
 
 {h) Swinb. Pt. 6, s. 12, pi. 1. 
 
 purpose of.
 
 Cli. II. § I.J Citation to jjrodace the Will. 259 
 
 with the Will annexed of the personal estate of the tes- 
 tator." 
 
 A legatee or a creditor (c) similarly cites both the executor 
 and the residuary legatees or the testator's next-of-kin if the 
 residue has not been disposed of. 
 
 Before any citation can issue in respect of a Will, that Will 
 must have been filed. 
 
 The party citing must therefore have previously obtained 
 possession of the Will [d). 
 
 By the Court of Probate Act, 1857, s. 26, " The Court of 20 & 21 Vict. 
 
 Probate may, on motion or petition, or otherwise in a sum- Order to 
 
 mary way, whether any suit or other proceeding shall or shall f,™tramen7 
 
 not be pending in the Court with respect to any probate or purporting to 
 ... be testamen- 
 
 administration, order any person to produce and bring into tary. 
 
 the principal or any district registry, or otherwise 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 (c), 
 
 (c) A creditor may cite the Laws, L. R. 2 P. & D. 458. But 
 
 next of kin to accept administra- if he be proved by affidavit to be 
 
 tion though his right of action is unable from illness to attend to be 
 
 barred by the Stat, of Limita- examined in open Court,the Court 
 
 tions : In the goods of Cooml)!?, has power under this section to 
 
 L. R. 1 P. & D. 193. order his attendance to be exa- 
 
 (cZ) Tristram and Coote's Probate mined viva voce before a commis- 
 
 Practice, 10th edit. pp. 239, 240. sioner : Banfield v. Pickard, 6 P. 
 
 (e) See In the goods of Shepherd D. 33. The Court will not order 
 
 [1891] P. 323. The examination of the attendance for examination in 
 
 a, person respecting his knowledge open Court of the attesting wit- 
 
 of testamentary papers under this nesses to a Will because they may 
 
 section mixst be either in open Court have declined to give information 
 
 or on interrogatories, so there is no as to the circumstances attending 
 
 power to order his examination the execution of the same : Evans 
 
 before the Registrar of the district v. Jones, 36 L. J., P. & M. 70. 
 where he resides : In tlie goods of 
 
 S 2
 
 poenas. 
 
 iGO Of Prolate. [Pt. i. Bk. iv. 
 
 or upon interrogatories respecting the same, and such person 
 shall be bound to answer such questions or interrogatories, 
 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 proceed- 
 ing (/), shall be in the discretion of the Court." 
 21 & 22 Vict. Further, by stat, 21 & 22 Yict. c. 95, s. 23, it is enacted 
 a 9/i. p. 23. ^|^g^|. iij^ shall be lawful for a registrar of the principal 
 
 Registrar may ° 
 
 iRsue sub- " registry of the Court of Probate, and whether any suit or 
 other proceeding shall or shall not be pending in the said 
 Court, to issue a subpoena requiring any person to produce 
 and bring into the principal or any district registry, or other- 
 wise as in the said subpoena may be directed, any paper or 
 writing being or purporting to be testamentary, which may 
 be shown to be in the possession, within the power, or under 
 the control of such person ; and such person, upon being duly 
 served with the said subpoena, shall be bound to produce and 
 bring in such paper or writing, and shall be subject to the 
 like process of contempt in case of default as if he had been a 
 party to a suit in the said Court, and had been ordered by 
 the judge of the Court of Probate to produce and bring in 
 such paper or writing {g). 
 
 (/) On a motion for attachment therewith, the Court will not at 
 of a person served with a subpccna once order an attachment to issue 
 . under this section to bring in a against him, but will make a pre- 
 testamentary paper and failing to liminary order that he shall attend 
 comply with it, the party pro- in Court to be examined in refer- 
 ceeded against must receive notice ence to his possession of such 
 of the application in the first in- paper : Parkinson v. Thornton, 37 
 stance : Baigent v. Baigent, 1 P. L. J., P. M. 3. And where an 
 D. 421. executor who had intermeddled 
 ((/) Where a subpoena has been with the estate but did not take 
 personally served upon a person probate of the WiU, had been cited 
 to bring in a testamentary paper, to do so and had not obeyed the 
 and such person fails to comply citation, the Court refused to
 
 oil. II. § l] Deposit of Wills, &g. 261 
 
 The practice with regard to citations in non-contentious Practice witt 
 business is in all respects the same as that which prevailed timis'in non- 
 before the passing of the Judicature Acts. Not having been contentious 
 
 r ID o business, 
 
 afifected by them in any way it continues in force as before (/<). 
 For rules relating to the practice in this respect, see Probate 
 Rules of 1862 (Non-contentious), Eules 68 — 70, 
 
 It has been more than once laid down by Lord Eldon, that Solicitor who 
 the lien of an attorney or solicitor does not extend to the \vm i^as no 
 original Will executed by his client ; and that he cannot refuse ^'®" °^ '*■ 
 the production of it (?')• 
 
 In Brown v. Cuates (j), Sir John Nicholl strongly inclined Holder of a 
 to an opinion, that a mere holder of a Will, monished to allowed to 
 bring it into the Prerogative Court, could not be allowed to 3|J{^"*j^ •'^^^" 
 dispute the jurisdiction, and put the other party to proof of 
 bona notahilia, prior to giving up the Will. 
 
 Disputed Wills ought to be lodged in the Piegistry of the Disputed Wills 
 Court for custody. On one occasion Sir John Nicholl ob- i*o'd-ed in the 
 served (A;), "Practitioners have no right to keep Wills in ^^sistry. 
 their possession. I have, in several instances, stated, that 
 the expense necessary to get a Will out of the hands of a party 
 must fall upon those who withhold it." 
 
 It has been the constant practice of the Court, to order all o^^^^r to bring 
 
 in all testamea- 
 
 testameutary papers to be brought in when required. And a tary papers, 
 duplicate is a part of a Will, and to be considered a testa- 
 mentary paper within this rule (I). 
 
 Whether the Will respected personal estate only, or whether Deposit of 
 it was a mixed Will, concerning both lands and goods, it was, registry -. 
 
 order an attachment in the first Paiss. 87. He engages to make a 
 
 instance, but directed that a per- Will effectual for the purposes of 
 
 «mptory order should be served to the testator ; wliich it cannot be 
 
 take probate within ten days : unless it is produced elsewhere : 
 
 Mordaunt v. Clarke, L. R. 1 P. & D. Jacob. 581, See also Ex parte Law> 
 
 592. 2 A. & E. 45. 
 
 (h) Tristram and Coote's Probate (j) 1 Add. 345. 
 
 Practice, 10th edit. 246. (k) Cunningham v. Seymour, 2 
 
 (i) Georges v. Georges, 18 Ves. Phillim. 250. 
 
 294. Lord v. Womileighton, Jac. (/) Killican v. Parker, 1 Cas. 
 
 580. Balch V. Symes, 1 Turn. & temp. Lee, G62.
 
 2G2 
 
 Of Frohatc. 
 
 [Pt. I. Bk. IV. 
 
 when and how- 
 it can be got 
 out. 
 
 20 & 21 Vict. 
 c. 77, s. 66. 
 Place of 
 deposit of 
 original Wills. 
 
 after probate, deposited, together with all other testamentary- 
 papers, in the Registry of the Ecclesiastical Court in which 
 it had been proved. And now, by the 66th section of the 
 Court of Probate Act, 1857 (20 & 21 Yict. c. 77), "there 
 shall be one place of deposit under the control of the Court 
 of Probate, at such place in London or Middlesex as her 
 Majesty may by order in Council direct, in which all the 
 original Wills brought into the Court or of which probate or 
 administration with the Will annexed is granted under this 
 Act in the principal registry thereof, and copies of all Wills 
 the originals whereof are to be preserved in the district 
 registries, and such other documents as the Court may direct, 
 shall be deposited and preserved, and may be inspected under 
 the control of the Court and subject to the rules and orders 
 under this Act " (m). If it should be needed in order to be 
 
 (m) By sect. 67, " The judge 
 shall cause to he made from time 
 to time in the principal registry of 
 the Court of Probate calendars of 
 the grants of probate and ad- 
 ministration in the principal re- 
 gistry, and in the several district 
 registries of the Court, for such 
 periods as the judge may think 
 lit, each such calendar to contain 
 a note of every probate or admin- 
 istration with the Will annexed 
 granted within the period therein 
 specified, and also a note of every 
 other administration granted with- 
 in the same period, such respective 
 notes setting forth the dates of 
 such grants, the registry in which 
 the grants were made, the names 
 of the testators and intestates, the 
 place and time of death, the names 
 and descriptions uf the executors 
 and administrators, and the value 
 of the effects ; and the calendars to 
 be so made shall be printed as the 
 same are from time to time com- 
 pleted." 
 
 By sect. 68, " The registrars 
 shall cause a printed copy of every 
 calendar to be transmitted through 
 the Post or otherwise, to each of 
 the district registries, and to the 
 office of Her Majesty's Prerogative 
 in Dublin, the office of the Com- 
 missary of the county oi Midlothian 
 in Edinburgh, and such other 
 offices, if any, as the Court of 
 Probate shall from time to time 
 by rule or order direct ; and every 
 printed copy of a calendar so 
 transmitted as aforesaid shall be 
 kept in the registry or office to 
 Avhich it is transmitted, and may 
 be inspected by any person on 
 payment of a fee of one shilling 
 for each search, without reference 
 to the number of calendars in- 
 spected." 
 
 By sect. 69, " An official copy of 
 the whole or any part of a Will, or 
 an official certificate of the grant of 
 any letters of administration, may 
 be obtained from the registry or 
 district registry where the Will
 
 Ch. 11. § I.] Deposit of Wills. 263 
 
 put in evidence in some other judicial proceeding, the attend- 
 ance of the registrar, or other proper officer, wilh it must be 
 procured. In some cases, an order of the Court of Chancery 
 has been obtained that it shall be delivered out by the registrar 
 on giving security to return it {n). And the Ecclesiastical 
 Court itself has, on several occasions, ordered the Will to be 
 delivered out of its Registry for the legal purpose of its being 
 sent to the proper place for its custody (o). The last of 
 these orders {y) appears to have been a decree that the Will 
 and codicils of Napoleon Bonaparte should be delivered out 
 (after notarial copies had been made) in order to be sent to 
 the legal authorities in France to be recorded there in the 
 proper place. 
 
 But with respect to cases where it was formerly necessary Stat. 20 & 21 . 
 to produce the original Will, in order to establish a devise «. qI-^' 
 of real estate, it is enacted by stat. 20 & 21 Vict. c. 77 probate to be 
 
 evidence of the 
 
 (Court of Probate Act), s. 64, that on notice being given of wiu in suits as 
 intending to put the probate in evidence, the probate shall be ^^\l^^ l^^ ^' 
 sufficient evidence of the Will and its validity, unless the y.^}!,'^!*^,?* **^® 
 
 *' ' _ Will IS dis- 
 
 other party shall give notice that he intends to dispute the imteti. 
 
 validity of the Will. 
 
 This subiect, and the enactment contained in the 62nd sec- Stat. 20 & 21 
 
 Vict. c. 77, 
 tion of the same statute, that the probate shall be conclusive s. 62, 
 
 of the validity of the Will, in all proceedings affecting the 
 
 real estate, where the probate has been granted after proof in 
 
 solemn form, &c., will be considered hereafter {q), together 
 
 with the general doctrine of the effect of probate. 
 
 has been proved or the administra- (n) See post, § ix. 
 
 tion granted, on the payment of (o) Post, § vii. 
 
 such fees as shall be fixed for the {p) In re Napoleon Bonaparte, 
 
 same by the rules and orders under 2 Robert. 606. 
 
 this Act." {q) Post, Pt. I. Bk. vi. Ch. l
 
 264 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 A Will can- 
 not be proved 
 in the life- 
 time of the 
 testator. 
 
 20 & 21 Vict, 
 c. 77, s. 91. 
 As to deposi- 
 tories for safe 
 custody of the 
 Wills of living 
 persons. 
 
 Time within 
 which the Will 
 ought to be 
 proved. 
 
 SECTION II. 
 
 When tlic Will is to he proved. 
 
 I the testator be jei living, the judge may not proceed to 
 the proving of his testament ; because it is of no force as long 
 as the testator lives, ^vho also may revoke or alter the same 
 at any time before his death (/•). 
 
 Now by 91st section of the Probate Act, 1857, (20 & 21 
 Tict. c. 77,) it is enacted, that "One or more safe and con- 
 venient depository or depositories shall be provided, under 
 the control and directions of the Court of Probate, for all 
 such Wills of living persons as shall be deposited therein for 
 safe custody : and all persons may deposit their Wills in 
 such depository upon i^ayment of such fees and under such 
 regulations as the judge shall from time to time by any order 
 direct." 
 
 The time, after the testator's death (s) , when the Will is to 
 
 (?•) Swink Pt. 6, s. 13, pi. 1. 
 
 (s) If the (leatli of tlie jiarty 
 cannot be proved by sufficient wit- 
 nesses, recourse must be liad to 
 tbe presumption of law ; for which 
 see Swinb. Pt. 6, s. 13, pi. 2. Go- 
 dolph. Pt. 1, c. 20, s. 3. Dean v. 
 Davidson, 3 Hagg. 554. In the 
 goods of Hutton, 1 Curt. 595. Or 
 in the case of a person long ab- 
 sent, and in parts far remote, and 
 transmarine, to common fame : 
 Swinb. Pt. 6, s. 13, pi. 2. Godolph. 
 Pt. 1, c. 20, s. 3. In the Common 
 Law Courts, a jitry may presume 
 that a man is dead at the expira- 
 tion of seven years from the time 
 when he was last known to be 
 living : per Lord Ellenborough, in 
 Doe V. Jesson, 6 East, 84. See also, 
 as to this presumption, Doe v. 
 Nepean, 5 B. & Adol. 86. S. C. 
 on error, 2 M. & W. 894. Taylor 
 on Evid. 81h edit. 218 d Rcq. In 
 
 the goods of Turner, 3 Sw. & 
 Tr. 476. Re Tindall's Trust, 30 
 Beav. 151. Ee Beasney's Trusts, 
 L. R. 7 Eq. 498. Re Rhodes, 
 36 C. D. 586. Re Corbisliley, 14 
 C. D. 846. There is no legal pre- 
 sumption as to the time of his 
 death : Doe r. Xepean, uhi supra. 
 In the goods of Smith, 2 Sw. & Tr. 
 508. Thomas v. Thomas, 2 Dr. & 
 Sm. 298. Re Rhodes, 36 C. D. 
 586. Where a legatee has not 
 been heard of for seven years his 
 death will be presumed, and the 
 onus of proving that he sui'vived 
 the testator lies upon those who 
 claim under him. See Re Ben- 
 ham's Trusts, L. R. 4 Eq. 416. 
 Re Phene's Trusts, L. R. 5 Ch. 
 139. Re Walker, L. R. 7 Ch. 
 120. Hickman v. Upsall, L. R. 20 
 Eq. 136. Therefore in a case 
 where a legatee under the Will or 
 a tts'.atnr who died in February
 
 Cli. II. § II.] When the Will is to he proved. 265 
 
 be proved is somewhat uncertain, and left to the discretion 
 of the judge, according to the distance of the place, the weight 
 of the Will, the quality of the executors, the absence of the 
 witnesses, the imj^ortunity of creditors and legatees, and other 
 circumstances incident thereto. And by stat. 55 Geo. III. Penalty under 
 c. 184, s. 37, it is enacted, that " if any person shall take c. i84,"s. s't, 
 possession of, and in any manner administer, any part of the f„g^^""f^'^' 
 personal estate and effects of any person deceased, without obtaining pro- 
 
 ^ "^ -^ ... bate ur letters 
 
 obtaining probate of the Will or letters of administration of of administra- 
 the estate and efiects of the deceased, within six calendar 
 months after his or her decease, or within two calendar months 
 after the termination of any suit or dispute respecting the 
 Will or the right to letters of administration, if there shall be 
 any such, which shall not be ended within four calendar 
 months after the death of the deceased ; every person so 
 offending shall forfeit the sum of one hundred pounds, and 
 also a further sum, at and after the rate of ten pounds jKr 
 centum on the amount of the stamp-duty payable on the pro- 
 bate of the Will, or letters of administration of the estates 
 and effects of the deceased. 
 
 The penalty now substituted for that imposed by the above Penalty now in 
 section is one of double the amount of duty chargeable, which tutjon foi- 
 ls a debt due to the Crown, and is recoverable by any of the '^^o^e. 
 ways or means in force for the recovery of probate, legacy or 
 succession duty (f). 
 
 1860, left England in 1858, and ever, does not seem to have been 
 
 was last heard of by a letter from ever apphed to cases where the per- 
 
 Australia, dated in January, 1859, son whose death is to be presumed is 
 
 and where the legacy had been neither the person whose estate is 
 
 paid into Court, and in 1870 the to be administered nor a legatee, 
 
 residuary legatee petitioned for e.g. a husband who, if alive, would 
 
 payment to himself on the ground have been entitled to administra- 
 
 that in the absence of proof that tion as next of kin ol his deceased 
 
 the legatee had survived the testa- wife : In the goods of Clark, 15 
 
 tor, the legacy must be taken to P. D. 10. 
 
 have lapsed, Malins, V.C, ordered {t) Customs and Inland Revenue 
 
 the money to be paid to the re- Act, 1881, 44 Vict. c. 12, s. 40. 
 
 siduary legatee, and the Court of Proceedings may also be taken 
 
 Appeal affirmed the decision : Ee under stat. 28 & 29 Vict. c. 104, 
 
 Lewes' Trusts, L. R. 6 Ch. 35(5. s. 57, as to which see ^mst, Pt. i. 
 
 The doctrine of presumption, how- Bk. vii.
 
 2G6 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 Kale 43, F. E. 
 1862. 
 
 Rule 45. 
 
 By rule 43 of the " General Rules and Orders for tlie 
 Registrars of the Principal Registry (made in 1862)," "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." 
 
 And by rule 45, " in every case where probate or adminis- 
 tration 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." 
 
 SECTION III. 
 
 20 & 21 Vict, 
 c. 77. s. 13. 
 District Regis- 
 tries to be 
 established. 
 
 S. 46. 
 
 Probates and 
 administration 
 may be granted 
 in common 
 form by Dis- 
 trict Regis- 
 trars, if it shall 
 appear by affi- 
 davit that the 
 testator, &c., 
 had a fixed 
 place of abode. 
 
 Of the Practice of the Court of Prolate, and hereicith of 
 the Proof of Wills in Common Form. 
 
 By the Court of Probate Act, 1857, 20 & 21 Vict. c. 77, 
 s. 13, " There shall be established for each of the districts 
 specified in Schedule (A.j to this Act, and at the places 
 respectively mentioned in such schedule, a public registry 
 attached to and under the control of the Court of Probate, 
 heremafter referred to as ' The District Registry.' " 
 
 By the 46th section of the same statute, "Probate of a 
 Will or letters of administration may, upon application for 
 that purpose to the district registry, be granted in common 
 form by the district registrar in the name of the Court of 
 Probate, and under the seal appointed to be used in such 
 district registry, if it shall appear by afiidavit of the person or 
 some or one of the persons applying for the same that 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, and such place of abode being stated 
 in the affidavit, and such probate or letters of administration 
 
 1
 
 Ch. II. § III.] District Registries. 267 
 
 shall have effect over the personal estate of the deceased in all 
 parts oi England accordingly {a). 
 
 And by sect. 47, "Such affidavit shall be conclusive for S. 47. 
 the purpose of authorizing the grant by the district registrar conclusive for 
 of probate or administration ; and no such grant of probate ''^J^Jj^f'^fg. 
 or administration shall be liable to be recalled, revoked, or bate. 
 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 registrar shall effectually discharge and 
 protect all persons paying to or dealing with any executor 
 or administrator thereunder, notwithstanding the want of or 
 defect in such affidavit, as is hereby required." 
 
 By sect. 48, " The district registrar shall not grant probate S. 48. 
 
 , . . . . • 1 • 1 .1 • i i.' District Regis- 
 
 or administration in any case m which there is contention as tj-^r not to 
 
 to the grant, until such contention is terminated or disposed "^^^ fherels a 
 
 of by decree or otherwise, or in which it otherwise appears to contention. 
 
 him that probate or administration ought not to be granted in 
 
 common form." 
 
 And by sect. 49, " Notice of every application to any s. 49. 
 
 district registrar for the grant of probate or administration, mission of 
 
 shall be transmitted by such district registrar to the regis- '^^^'^^j °^ ^^ 
 
 trars of the principal registry by the next post after such grants of pro- 
 
 l^fitp &c to 
 
 application shall have been made ; and such notice shall District Regis- 
 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 {x) of one of 
 
 (w) It is not obligatory to apply to the principal registry. See sect. 
 
 for probate or administration to 59 oi' the Probate Act, 1857. 
 any district registry, but the appli- (x) By stat. 21 & 22 Vict. c. 95, 
 
 cation may, in every case, be made s. 2(), the certificate need not be 
 
 trar.
 
 268 
 
 S. 51. 
 
 District regis- 
 trars to trans- 
 mit lists of pro- 
 bates and ad- 
 ministrations 
 and copies of 
 Wills. 
 
 S. 52. 
 District 
 Registrars to 
 preserve origi- 
 nal \Yills, 
 
 0/ Probate. [Pt. i. Bk. iv. 
 
 the registrars of the principal registry', that uo other applica- 
 tion 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 applica- 
 tions in the district registries shall be filed and kept in the 
 principal registry, and the registrars of the principal registry 
 shall, with reference to every such notice, examine all 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 uo aj^plication for probate or adminis- 
 tration, in respect of the goods of the same deceased person, 
 may have been made in more than one registry, and shall 
 communicate with the district registrars as occasion may 
 require in relation to such applications." 
 
 And by sect. 51, " On the first TJiursday of every month, 
 or oftener, if required by any rules or orders to be made in 
 that behalf, every district registrar shall transmit to the 
 registrars of the principal registry a list in such form and 
 containing such particulars 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 2)receding 
 Saturday, and not included in a previous return, and also 
 a copy certified by the district registrar to be a correct 
 copy (ij), of every AVill to which any such probate or adminis- 
 tration relates." 
 
 And by sect. 52, " Every district registrar shall file and 
 preserve all original ^yills of which probate or letters ot 
 administration, with the Will annexed, may be granted by 
 him, in the public registry of the district subject to such 
 
 under the hand, but may be issued 
 under a stamp provided for that 
 purpose, and approved of by the 
 Jud"e of the Court. 
 
 (,!/) By Stat. 21 & 22 Vict. c. 95, 
 s. 25, these Ciipies may be certified 
 and transmitted under a stamp 
 provided for that purpose.
 
 Ch. 11. § III.] Practice of Court of Probate. 269 
 
 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." 
 
 By sect. 29, " The practice of the Court of Probate shall, Stat. 20 & 21 
 except where otherwise provided by this Act, or by the rules or s. 29. 
 orders to be from time to time made under this Act, be, so far court^ to be ac- 
 as the circumstances of the case will admit, according to the cording to the 
 
 present prac- 
 
 present practice in the Prerogative Court " (z). tice of the 
 
 By sect. 30, "And to the intent and end that the pro- Court! 
 
 cedure and practice of the Court may be of the most simple s. 30. 
 
 and expeditious character, it shall be lawful for the Lord orde^rs'to be 
 
 Chancellor, at any time after the passing of this Act, with ™^'^^ ^°^" ^"'^su- 
 
 , i t> J l^tjjjg the 
 
 the advice and assistance of the Lord Chief Justice of the procedure of 
 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 shall be deemed contentious, and what shall be deemed 
 non-contentious business, and, subject to the express pro- 
 visions 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 
 efi'ect ; 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 
 
 (z) Sir C. Cresswell appears to the goods of Oliphant, 1 Sw. Sc Tr. 
 
 have been of opinion that this sec- 525. See also Belbin v. Skeats, 1 
 
 tion applies to the procedure only Sw. & Tr. 148 ; 27 L. J., P. & M. 
 
 of the Court, and not to the prin- 56 ; Braine v. Braine, 1 Sw, & Tr. 
 
 ciples on which it is to act. In 271 ; 29 L. J., P. & M. 151.
 
 270 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 38 & 39 Vict. 
 c. 77, s. 18. 
 Rules of Pro- 
 bate, Divorce 
 and Admiralty 
 Courts to re- 
 main in force. 
 
 Jurisdiction of 
 President of 
 Probate, &c., 
 Division to 
 make rules as 
 to non-conten- 
 tious probate 
 business. 
 
 Justice named in this bt-lialf, to repeal, amend, add to or alter 
 any such rules and orders as to him, with such concurrence 
 as aforesaid, may seem fit." 
 
 And now by sect. 18 of the Judicature Act, 1875, it is 
 enacted that, " All rules and orders of Court in force at the 
 time of the commencement of this Act in the Court of 
 Probate, the Court for Divorce and Matrimonial Causes, and 
 the Admiralty Court, or in relation to appeals from the Chief 
 Judge in Bankruptcy, or from the Court of Appeal in 
 Chancery in bankruptcy matters, except so far as they are 
 expressly varied hy the first schedule hereto, or by rules of 
 Court made hy order in council before the commencement of 
 this Act {a), shall remain and be in force in the High Court of 
 Justice and in the Court of Aj)peal respectively until they 
 shall respectively be altered or annulled by any rules of Court 
 made after the commencement of this Act. 
 
 " The President for the time being of the Probate and 
 Divorce Division of the High Court of Justice shall have, 
 with regard to non -contentious or common form business in 
 the Probate Court, the powers now conferred on the judge of 
 the Probate Court by 20 & 21 Vict. c. 77, sect. 30." 
 
 Under the powers conferred by 20 & 21 Vict. c. 77, s. 30, 
 already referred to, a great many very copious, minute, and 
 explicit rules and orders were, in the years 1862 and 1863, 
 made for the guidance of practitioners in the Court of 
 Probate, both in respect of contentious and non-contentious 
 business, and for the instruction as well of the principal 
 registrars as of the district registrars, together with a very 
 large collection of forms. As to which it is thought more 
 expedient to refer to the books of practice (h), than, by 
 inserting them, to encumber this Treatise by such a very long 
 statement as would be requisite for that purpose (c). 
 
 (a) The words in italics are 
 repealed by the Stat. Law. Rev. 
 Act, 1883. 
 
 (b) Tristram & Coote's Probate 
 
 Practice, 10th edit. 
 
 (c) The Judicature Acts do not 
 appear to have altered the proce- 
 dure or pradice of the Court of
 
 Cli. II. § III.] In Common Form. 271 
 
 These rules, orders, and directions are for the most part 
 founded on the doctrines and practice previously established 
 in the Prerogative Court with regard to the making, &c. of 
 Wills, which have already been stated in the progress of this 
 work. 
 
 A testament may be proved in two ways ; either in Ways of 
 Common Form, or by Form of Law; which latter mode is Yriir°^* 
 also called the Solemn Form, and, sometimes, proving r>er i- Common 
 
 Form : 
 testes (d). ii. Solemn 
 
 A Will is proved in common form, when the executor 
 
 Common 
 
 presents it before the judge, and in the absence, and without form. 
 citing the parties interested, produces witnesses to prove the 
 same ; who testifying, by their oaths, that the testament 
 exhibited is the true, whole, and last Will and testament of 
 the deceased, the judge thereupon, and sometimes upon less 
 proof, does annex his probate and seal thereto (e). 
 
 If the Will be perfect on the face of it, and there is an Manner of 
 attestation clause, reciting that the solemnities required by °'^**\"'"S P™ 
 the statute 1 Vict. c. 26, s. 9, have been complied with (e.g. common 
 *' signed and declared by the above-named testator, as and for 
 his last Will and testament, in the presence of us present at 
 the same time, who, in his presence and in the presence of 
 
 Probate with respect to non-con- lish a different basis to that which 
 tentious business. Nor do they existed in the Probate Court. I 
 alter or enlarge the jurisdiction of am of opinion that where freehold 
 the Court of Probate in non-con- property has had impressed upon 
 tentious matters. In the goods of it a changed character by reason 
 Tomlinson, 6 P. D. 209. But in of the doctrine of equitable con- 
 In the goods of Gunu, 9 P. D. 242, version, it is to be treated as per- 
 244, Sir James Hannen said, " It sonalty, and probate duty is pay- 
 appears to me that a very great able, and it therefore follows that 
 change has been worked now by probate must be granted." 
 the fusion of all the Courts into (d) Swinb. Pt. 16, s. 14, pi. 1. 
 one. There is no difference be- Godolph. Pt. 1, c. 20, s. 4. 
 tween the law to be administered (e) Swinb. Pt. 6, 8. 14, pi. 2. 
 in this (Probate) Division and Godolph. Pt. 1, c. 20, s. 4. 
 elsewhere, but each Court is to (/) For practical directions for 
 ascertain what the law is, whether obtaining grant of probate in corn- 
 legal or equitable, and I think nion form, see Browne's Probate 
 therefore it is open to me to estab- Practice, rev. edit. 206, et seq.
 
 07Q 
 
 0/ Prolate. 
 
 [Pt. I. Bk. IV. 
 
 Where no or 
 imperfect at- 
 estation 
 clause. 
 
 Probate of 
 Wills exbibit- 
 ing alterations 
 and oblitera-j 
 tions. 
 
 eacli other, have hereunto set our names as witnesses thereto. 
 John Styles, Richard Nokes " ), probate in common form may 
 be obtained upon the oath of the executor alone. 
 
 But if there is no attestation clause, or if there is a clause 
 which does not state a performance of all the prescribed 
 ceremonies, an affidavit is required from one of the subscribing 
 witnesses, by which it must appear that the Will was executed 
 in compliance with the statute {g). But this rule may be 
 dispensed with, if the witnesses, after diligent inquuy, are not 
 forthcoming {h). 
 
 Where it appears from the affidavits, the attestation clause 
 being imperfect, that the Will was not properly attested by 
 the witnesses under the statute, the Court cannot decree 
 administration to pass to the effects of the deceased as dead 
 intestate ; for there might be collusion : All that the Court 
 will do in such cases is to reject the prayer for probate, leaving 
 the parties to take out administration if they think proper ; as 
 notwithstanding the Court declines to grant probate, the Will 
 might be propounded and established (i). 
 
 If a Will, bearing date on or after January 1, 1838, has 
 upon the face of it any unattested obliteration, interlineation, 
 or alteration, the practice is to require an affidavit, showing 
 whether they were made before or after the execution of the 
 Will (/c). 
 
 {g) In the goods of Johnson, 2 
 Curt. 341. In the goods of Bat- 
 ten, 7 Notes of Cas. 290. Rule 4, 
 P. R. 1862 and 1871 (Non-Con- 
 tentious Business). Where one of 
 the witnesses deposed that the 
 Will was signed in the presence of 
 himself and the other witness, the 
 other witness having no recollec- 
 tion as to the fact, prohate was 
 allowed : In the goods of Hare, 3 
 Curt. 54. See also ante, p. 91. 
 
 Qi) In the goods of Luffman, 5 
 Notes of Cas. 183. In the goods 
 of Dickson, 6 Notes of Cas. 278. 
 As to the course to be adopted 
 
 when no affidavit is obtainable, 
 see Rule 7, P. R. 1862 (Non-Con- 
 tentious). 
 
 (i) In the goods of AyUng, I 
 Curt. 913. See also In the goods 
 of Watts, 1 Curt. 594. Rule 5, 
 P. R. 1862 (Non-Contentious). If 
 on perusing the affidavit or affi- 
 davits setting forth the facts of the 
 case it appear doubtful whether 
 the Will or codicil has been duly- 
 executed, the registrar may require 
 the parties to bring the matter 
 before the Judge on motion. Rule 
 6. 
 
 {k) Rules 8, 9, 10, and 11, P. R.
 
 Cli. II. § III.] In Common Form. 273 
 
 Where alterations are satisfactorily shown to have been 
 made before the execution, it is usual to engross the probate 
 copy of the Will fair, inserting the words interlined in their 
 proper places, and omitting words struck through or obli- 
 terated. But in cases where the construction of the Will 
 may be affected by the appearance of the original paper, the 
 Court will order the probate to pass in fac simile (I) . And it Probate in 
 appears to have been sometimes supposed that the grant of 
 such a probate leaves it open to a Court of Construction to 
 inquire whether such alterations of the Will were made under 
 such circumstances as to be effectual (?n). But it is plain, it 
 should seem, that unless the Court of Probate had adjudged 
 that the obliterations or other alterations had been effectually 
 made, the decree would have been for probate of the Will in 
 its original state. A fac simile probate, therefore, of a Will 
 made after the Wills Act came into operation is conclusive 
 in the Temporal Courts, that the Will was in that state before 
 its execution, i.e. that the testator duly executed it with the 
 alterations or cancellations upon it (n). And the object of 
 the fac simile is that the alterations, &c., may possibly help 
 to show the meaning of the testator : As, for example, in a 
 case where a testator says, " I give A. B. an annuity of 500Z., 
 and I also give him 1,000L : " and the testator then strikes 
 out down to and including the words " 500Z." (o). 
 
 (Non-Contentious Business). One In the goods of Batten, 7 Notes of 
 
 of the subscribed witnesses will Cas. 290. See ante, p. 123, as to 
 
 suffice, if he can speak positively. probate where words are com- 
 
 But if none of them can do so, pletely obliterated, 
 
 they should all, whatever be their (l) See post, Pt. i. Bk. vr. Ch. i, 
 
 number, join in the affidavit : In In the goods of Raine, 34 L. J., 
 
 the goods of Townshend, 5 Notes P. M. & A. 125. In the goods ot 
 
 of Cas. 146. If none of them can Smith, 3 Sw. & Tr. 889. 
 
 depose negatively or affirmatively, (m) See the argument of Sir R. 
 
 the practice is for the executor to Bethell in Shea v. Boschetti, 18 
 
 join in the affidavit and depose Beav. 321. 3 De G. M. & G. 778, 
 
 that he cannot adduce any further 779. 
 
 or other evidence, and then pro- (n) Gann v. Gregory, 3 De G. 
 
 bate will be granted of the Will as M. & G. 777. Post, Pt. i. Bk. vi. 
 
 it originally stood. When two wit- Ch. I. 
 
 nesses join in one affidavit, both (o) Gann v. Gregory, 3 De G. M. 
 
 must depose to the due execution : & G. 780. Suppose, again, the 
 
 W.E. — VOL. I. T
 
 274 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 Trobate after In a case where a testator, having duly executed a Will,. 
 sons interested made a later one, betraying on the face of it insanity, the 
 to propound a ^.^eg^tors of the earlier Will took out a decree calling on all 
 
 later paper. " 
 
 persons interested in the later paper to propound it, with an 
 intimation that, on not appearing, the Court would decree 
 probate of the earlier Will : The persons cited, executed 
 proxies declining to propound the later paper, and consenting 
 to probate of the earlier one : And Sir H. Jenner Fust 
 accordingly decreed probate of it in common form, without 
 the later paper having been propounded at all, and said that 
 the course which had been taken was that which ought to be 
 adopted in all similar instances {i)). 
 
 Proof in 
 
 solemn form ; 
 
 contentious 
 
 business. 
 
 Action now 
 substituted for 
 former citation. 
 
 Proof in 
 solemn form 
 ijnder the old 
 practice : 
 
 SECTION IV. 
 
 Proof of Wills in Solemn Form, or per Testes. 
 
 This is a part of the "contentious business" of the 
 Court ijjp), which now commences by the issue of a writ of 
 summons in an action which is substituted for the citation 
 formerly used. 
 
 When a Will is to be proved in solemn form, it is now, in 
 accordance with the old practice, requisite that such persons 
 as have interest (that is to say, the widow and next of kin of 
 
 words " to be equally divided 
 amongst them " interlined (with- 
 out any caret to show where they 
 were intended to come in), and in 
 such a position that they are ap- 
 plicable to two sets of legatees : 
 In such a case, it should seem, 
 there must, of necessity, be a fac 
 simile probate. 
 
 (p) Palmer v. Dent, 2 Robert. 
 284. 
 
 (pp) R. S. C. 1883, Ord. ii. 
 Rule 1. The practice in Con- 
 tentious business seems now to be 
 fjoverned by the Judicature Acts 
 
 and Rules, together wath the Rules 
 and Orders of 1862 (Contentious 
 Business) made under the autho- 
 rity of the Probate Court Act and 
 the old practice inherited by the 
 Probate Court from the Preroga- 
 tive Court, save in so far as the 
 same have been altered by the 
 Judicature Acts and Rules : Ken- 
 naway v. Kennaway, 1 P. D. 148 ; 
 which case shows that notwith- 
 standing the substitution of a writ 
 of summons for the initial citation 
 the former practice as to citing to 
 see proceedings still obtains.
 
 Ch. II. § IV.] In Solemn Form. 275 
 
 the deceased, to whom the administration of his goods ought 
 to he committed, if he died intestate) should be cited to be 
 present at the probation and approbation of the testament. 
 
 According to the practice under the Court of Probate 
 Act, 1857, declarations and pleas were substituted for the old 
 modes of pleading. Now, by the new Judicature Acts, state- i«ider the new 
 ments of claim and defences are substituted for declarations 
 and pleas. 
 
 By Kule 4 of the Kules and Orders, 1862 (Contentious), 
 ** 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 circumstances, and with the same privileges, liabili- 
 ties, and effect, as heretofore." 
 
 Rule 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 Will in solemn form of law, shall continue to 
 possess the same rights and privileges, and be subject to the 
 same liabilities with respect to costs as heretofore." 
 
 Rule 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." 
 
 The difference between the common form and the solemn The executor 
 form, with respect to citing the parties interested, works this '"^•^'^ f^^^^^^. 
 diversity of effect : viz. that the executor of the Will proved "?"" ^°''«^' ^^ 
 
 . » „ . . , cited to prove 
 
 m common form may, at any time within thirty years, be the Will per 
 compelled, by a person having an interest, to prove it per 
 testes in solemn form (</). Thus, a probate of a codicil 
 
 {q) Godolph. Pt. 1, c. 20, s. 4. cal mistake for thirty : see 4 Burn, 
 Indeed, Swinburne, Pt. 6, s. 14, E. L. 318, Phillimore's edit. How- 
 pi. 4, seems to consider ten years ever, in Hoffman v. Norris (Pre- 
 as the limit within which the exe- rog. 1805), reported in a note to 
 cutor may Vje compelled to prove : Newell v. Weeks, 2 Phillim. 231, 
 but this probably is a typographi- Sir Wm. Wynne says, "I do not 
 
 T 2
 
 276 
 
 Of Probate. 
 
 [Pt. I. Bk. IV 
 
 but not wkea 
 already proved 
 in solemn 
 form. 
 
 granted iu common form 1808, was upon the citation of the 
 executor by a next of kin to prove it ^er testes iu due form of 
 law, revoked iu 1818 (r), and one granted in 1807, by a simi- 
 lar proceeding revoked in 1820 (s). So that if the witnesses 
 be dead in the meantime, it may endanger the whole testa- 
 ment. Whereas, the testament being proved in solemn form 
 of law, the executor is not to be compelled to prove the same 
 any more; and although all the mtnesses afterwards be dead, 
 the testament still retains its full force (f). 
 The executor Hence, not only are Wills proved in solemn form, at the 
 
 Limself may 
 
 prove the Will instance of persons who desire to invalidate them ; but the 
 
 in solemn form ^i-tp i- n d^ ■\ e ^ 
 
 in the first executor himseli may, and in prudence often does, tor greater 
 instance. security, propouud and prove the Will, in the first instance, 
 
 per testes, of himself, citing the next of kin, and " all others 
 pretending interest in general," to "see proceedings;" which 
 being done, the Will shall not be set aside afterwards (pro- 
 vided there be no irregularity in the process) when the wit- 
 nesses are dead {u). 
 
 know that there is any specific 
 time that limits a party." See 
 also Merryweather v. Turner, 3 
 Curt. 802, 817. In the goods of 
 Topping, 2 Robert. 620, by Sir J. 
 Dodson, Accord. But where a 
 party who is thus entitled to call 
 in the probate and put the execu- 
 tor to proof of the Will, chooses to 
 let a long time elapse before he 
 takes this step, he is not entitled 
 to any indulgence at the hands of 
 the Court : He is entitled to have 
 the law strictly administered and 
 to nothing beyond it : Blake v. 
 Knight, 3 Curt. 553. And under 
 such circumstances the Court 
 (ha\ang regard to the infirmity of 
 the witnesses' memory after the 
 lapse of time) is, it should seem, 
 somewhat astute to discover cir- 
 cumstances whereupon to found an 
 inference tliat tlie formalities re- 
 
 quired for a due execution of the 
 Will have been gone through. See 
 the cases collected, ante, p. 91. 
 
 (r) Satterthwaite v. Satter- 
 thwaite, 3 Phillim. 1. 
 
 (.s) Finucane v. Gayfere, 3 Phil. 
 405. 
 
 (0 Swinb. Pt. 6, s. 14, pi. 4. 
 
 (m) 1 Ought, tit. 6, s. 5, tit. 222, 
 s. 1, 2. Lister v. Smith, 3 Sw. & 
 Tr. 53. Where an executor has 
 proved the Will in Common Form, 
 a party desirous of putting him to 
 proof in Solemn Form commences 
 an action for revocation, having 
 first cited the executor to bring iu 
 tlie probate. If the executor 
 desires to sustain the Will, lie 
 must either plead and propound 
 it in the action for revocation, or 
 he must commence an action him- 
 self to obtaiu proof in Solemn 
 Form.
 
 Ch. II. § IV.] In Solemn Form. 277 
 
 But the executors cannot be allowed to issue a citation 
 against the legatees under a codicil, ■uliicli they do not believe 
 to be a true codicil of the deceased, calling on them to pro- 
 pound and prove it if they think fit. The proper course is 
 for the executors to prove the Will in solemn form, and cite 
 the next of kin and the asserted legatees under the codicil to 
 see the "Will proved {x). 
 
 The next of kin, as such merely, are entitled to call for The executor 
 proof in solemn form of the deceased's Will, of common peiied to prove 
 right. And the mere acquiescence of a next of kin to the !° s<^'iemn fo™ 
 
 ° -i by a next or 
 
 probate being taken in the common form is no bar to the kin, who has ■" 
 
 . acquiesced and 
 
 exercise of this right, even though he has received a legacy received a 
 as due to him under the Will ; for he is still at liberty to ^^^°-^ ' 
 call in the probate, and put the executor on proof of that 
 identical 'WiW per testes (y). A strong instance of this occurs 
 in the case of Core v. Spenser (which was decided in the 
 Prerogative Court of Canterbury, in 1796) (5^), where Spenser, 
 the executor, was cited to bring in the probate of a Will, 
 taken in 1788, eight years before, at the suit of Core, whose 
 mother had received an annuity under that Will for five of 
 the eight years ; and she. Core herself, her mother dying at 
 the end of the fifth year, for the remaining three : Spenser, 
 in that case, appeared under protest, and contended that Core 
 was barred from putting him on proof of the Will : But 
 the Court thought otherwise, and overruled the protest. 
 However, long acquiescence, unaccounted for by any special 
 circumstances, and acts done by a next of kin under the 
 provisions of the Will, may (if no fact appears which excites 
 a reasonable suspicion of the genuineness or validity of the 
 Will) amount to such a waiver of his rights, as to preclude 
 him from putting the Will in suit {a). But where a Will of 
 
 (x) In the goods of Benbow, 2 Armstrong. 
 
 Sw. & Tr. 488. (a) Hoffman v. Norris, 2 Phil- 
 
 (y) Bell V. Armstrong, 1 Add. lim. 230, in a note to Newell v. 
 
 370. Merryweather v. Turner, 3 Weeks. Braham v. Burchell, 3 
 
 Curt. 802. Add. 257, 258. See also Merry- 
 
 (z) 1 Add. 374, in Sir J.Nicholl's weather v. Turner, 3 Curt. 802. 
 judgment^ in the case of Bell r.
 
 278 
 
 Of Prohatc. 
 
 [Pt. I. Bk. IV. 
 
 but be must 
 bring his 
 legacy into 
 Court : 
 
 Legatee who 
 has renounced 
 administration 
 with the Will 
 annexed : 
 
 if the executor 
 himself pro- 
 pounds the 
 Will, a next of 
 kin, though 
 not cited, can- 
 not call for 
 proof, if privy 
 to the first 
 suit. 
 
 the deceased having heen found in which the plaintiff was 
 named executor, he gave notice thereof to the defendant, who 
 was about to obtain a grant in the goods of the deceased as 
 interested under a previous Will, and entered a caveat, and 
 before the caveat had been warned and therefore before con- 
 tentious proceedings had originated therefrom, he withdrew 
 it, and signified to the defendant that he did not seek to 
 establish his Will, and administration with the earlier Will 
 annexed issued to the defendant, and subsequently the plain- 
 tiff took out a citation calling upon the defendant to bring in 
 the administration and show cause why it should not be 
 revoked, the Court held that the plaintiff was not precluded 
 from continuing a suit to determine which was the last Will 
 of the deceased {h). 
 
 And before a legatee, who has received all or part of his 
 legacy, can be permitted thus to dispute the Will, he must 
 bring into Court the amount of the legacy paid to him, to 
 abide the event of the suit (c). 
 
 A legatee who has renounced administration cum testamento 
 annexo, as legatee and next of kin, whereupon it has been 
 granted to another, is not barred by such renunciation from 
 contesting the Will ; and he may therefore cite such adminis- 
 trator to bring the letters of administration into Court to 
 prove the Will by witnesses, or to show cause why the deceased 
 should not be pronounced to have died intestate, and why 
 administration should not be granted to himself {d). 
 
 But when the executor propounds and proves the Will, per 
 testes, of himself, duly citing the next of kin "to see proceed- 
 ings," all next of kin so cited are, generally speaking, thereby 
 for ever barred ; and if he so propounds and proves the Will 
 against certain only of the deceased's next of kin, without 
 having cited them all to see proceedings, the others, even 
 
 {h) Goddard v. Smith, L. R. 3 
 P. & D. 7. 
 
 (c) Bell V. Armstrong, 1 Add. 
 374. Braham r. Burchell, 3 Add. 
 256, 257. Secus, where the legatee 
 
 is a minor : Goddard v. Norton, 5 
 Notes of Gas. 76. 
 
 (rf) Gascoyne'v. Chandler, 2 Gas. 
 temp. Lee, 241.
 
 Ch. II. § IV.] In Solemn Form. 279 
 
 though uncited, if to a certain extent privy to and aware of 
 the suit, shall not put the executor on proof "per testes of the 
 Will, so once already proved, a second time {e). 
 
 It is clearly established that before a person can be per- 
 mitted to contest a Will, the party propounding has a right 
 to call on him to show that he has some interest (/). 
 
 Any interest, however slight, and even, it seems, the bare What interest 
 possibility of an interest, is sufficient to entitle a party to have to entitle 
 oppose a testamentary paper. Thus where a testator dis- ^"yi*i* "pp"**® 
 posed of all his personal estate by his Will and gave his real 
 estate, but none of his personal, to his brother's children, 
 and by a codicil he gave them pecuniary legacies, revoking 
 the devise to them of the real estate which was of greater 
 value than the legacies ; it was held that they might oppose 
 the codicil alone, notwithstanding their only right to a share 
 of the personalty was under it {cj). Though a next of kin 
 may, as such, oppose all the testamentary papers, he has 
 not a right to oppose any particular one he may think fit ; 
 for some interest in it, however remote, is necessary (Ji). 
 
 A creditor has only a right to have a constat of the estate A creditor can- 
 not dispute the 
 validity of a 
 
 (e) Newel] v. Weeks, 2 Pliillim. not apply to a case where the 
 
 224. Bell V. Armstrong, 1 Add. parties to the suit compromise it 
 
 372. Accordingly it was held by and the decree is founded on the 
 
 Sir C. Cresswell, that a next of compromise. Wytcherley v. An- 
 
 kin, though not cited to see pro- drews, L. R. 2 P. & D. 327. 
 
 ceedings, and not having inter- (/) Hingeston v. Tucker, 2 Sw. 
 
 vened, if in fact cognisant of a suit & Tr. 596. But when two persons 
 
 between the executor and another oppose a Will, one cannot call 
 
 next of kin, ending in the esta- upon the other to propound his 
 
 blishment of the Will, is not at interest. Ibid. 
 
 liberty in any way to oppose pro- {g) Kipping v. Ash, 1 Robert. 
 
 Tjate of such Will being taken : and 2V0. See also Dixon v. Allinson, 
 
 where on a verdict, the Court had 3 Sw. & Tr. 572. But see the 
 
 pronounced for a Will, and a next observations of Sir C. Creswell on 
 
 of kin so situated had entered a the first named case in Crispin v. 
 
 caveat, the Court directed probate Doglioni, 2 Sw. & Tr. 17. 
 
 to issue, in spite of the caveat, and {h) Baskcomb v. Harrison, 2 
 
 condemned the next of kin in Robert. 118. S. C. 7 Notes of Ca« 
 
 costs : Ratcliffe v. Barnes, 2 Sw. 275. 
 & Tr. 486. But this rule docs
 
 •280 
 
 Of Prolate. 
 
 [Pt. I. Bk. lY. 
 
 Will, uEless he 
 Las liad a 
 graut of ad- 
 ministration : 
 
 but when ad- 
 ministration is 
 granted to him 
 he may oppose 
 a Will : 
 
 and this with- 
 out costs. 
 
 Court not 
 obliged ex 
 officio to order 
 citation to next 
 of kin. 
 
 A legatee can- 
 not set up a 
 Will which has 
 been pro- 
 nounced 
 against after 
 being litigated 
 by next of kin, 
 or by the 
 executor of 
 another Will. 
 
 According to 
 old practice 
 next of kin 
 was not liable 
 to costs, when 
 he compelled 
 the executor to 
 prove per 
 testes : 
 
 of the deceased, to see whether there are assets sufficient to 
 pay the debts ; but he cannot controvert the validity of a 
 Will ; for it is indifferent whether he shall receive his debt 
 from an executor or an administrator ; and if a creditor was 
 admitted to dispute the validity of a "Will, it would create 
 infinite trouble, expense, and delay to executors (i). 
 
 But when administration has been granted to a creditor, 
 he may oppose a Will ; he is the same for this purpose as 
 the next of kin {k). 
 
 And he may contest a Will without costs ; because he is 
 the appointee of the Court and defends in that character, and 
 does not appear simply as a creditor (/). 
 
 If nobody, who has a right, aj^pears to oppose the Will, 
 the Court is not obliged, ex officio, to order a citation to issue 
 to call the next of kin (?»). 
 
 A legatee cannot set up a Will, after it has been litigated 
 between the executor and next of kin, or between the ex- 
 ecutor and the executor of another Will, and pronounced 
 against, unless he can show the parties agreed to set aside 
 the Will by fraud or collusion (n). But if he is afraid the 
 executor will not do justice, he may intervene for his interest 
 pending the suit (o), but apparently not after the hearing {p). 
 
 According to the old practice of the Prerogative Court, 
 when an executor had been called upon by a next of kin to 
 prove the Will }:)er testes, and had sufficiently proved it, if the 
 party who caused him to do this merely cross-examined the 
 witnesses produced in support of the Will, he was not subject 
 
 [i) Burrougbs v. Griffiths, 1 Gas. 
 temp. Lee, 544. Menzies v. Pul- 
 brook, 2 Gurt. 845. 
 
 {k) Dabbs v. Ghisman, 1 Pliillim. 
 159, 160, per curiam. 
 
 (Z) Menzies v. Pulbrook, 2 Gurt. 
 851. 
 
 (m) Burroughs v. Griffiths, 1 Gas. 
 temp. Lee, 544. 
 
 (n) Bittleston v. Clark, 2 Gas. 
 
 temp. Lee, 250. Hayle v. Hasted, 
 1 Gurt. 236 : or unless, as it is said, 
 there has been neglect or misma- 
 nagement in the conduct of the 
 suit : 1 Gurt. 240. 
 
 (o) Bittleston v. Glark, 2 Gas. 
 temp. Lee, 250. 
 
 {])) Peters v. Tilley, 11 P. D. 
 145. See the judgment of Butt, J. , 
 in this case, p. 149.
 
 Cli. II. § IV.] 1)1 Solemn Form. ' 281 
 
 to costs, generally speaking (q). A next of kin, might how- 
 ever, exercise his undoubted right in this matter so vexatiously, 
 as to make himself responsible, if not wholly, in part for the 
 costs of his opponent (/■)• And there was a difference between secus, of a 
 next of kin, who are favourites of the Court, and the legatees prio/will':^^ 
 under a former Will ; for, though such a legatee might call 
 for proof, per testes, of a Will, by which his interests under a 
 former Will were prejudiced, and might interrogate the wit- 
 nesses produced in sujjport of that Will, he did this at the 
 risk of being condemned in costs, if the Court had reason to 
 suspect him of undue litigation (s). 
 
 Where an executor, who had obtained probate of a former And so it was 
 Will, or a creditor who had a grant of administration, opposed tor who had 
 a later Will, he had the same right to do so without being £e'ori^'°' 
 subject to costs, as where a Will was opposed by next of former Will, or 
 
 , creditor who 
 
 kin (0- But costs might be decreed agamst a party who had had a grant of 
 taken probate of a Will which he knew was not the last Will ^ ™'"^^ 
 of the deceased (a). 
 
 By the Rules of the Supreme Court of Judicature, 1883, The practice 
 Order XXI., rule 18, which now govern the procedure and byll^S. C. 
 practice of the Probate Division upon this point, it is enacted ^^f' ^\f^\o 
 
 (q) 1 Ougliton, tit. 6, s. 7. Reeves per : Wagner v. Mears, 2 Hagg. 
 
 V. Freeling, 2 Phillim. 56. Urqu- 524. 
 
 hart V. Flicker, 3 Add. 56. (s) Urquhart v. Flicker, 3 Add. 
 
 (r) Urquhart v. Fricker, 3 Add. 58 : See also on this subject, Mans- 
 57 : As where a next of kin field v. Shaw, 3 Phillim. 22. Bos- 
 acquiesced in the probate, and re- ton v. Fox, 29 L. J., P. M. & A. 
 ceived his legacy, and then, after a 68, from which cases it appears 
 considerable interval, cited the that the executor of a former Will 
 executor to prove the Will : Bell has the same right as a next of 
 V. Armstrong, 1 Add. 375. And kin. This right, however, does not 
 where a next of kin and residuary extend to a residuary legatee under 
 legatee under a prior Will, suing a former Will. Hockley v. Wyatt, 
 in forma pauperis, put the execi;tor 7 P. D. 239. 
 
 of a later Will to proof per testes, (t) 1 Phillim. 160, note (e) to 
 
 after seven years' acquiescence in Dabbs v. Chisman. See also Lo- 
 
 the probate, and the proofs then vett v. Harkness, 1 Cas. temp. Lee, 
 
 adduced were perfectly clear and 332. 
 
 satisfactory ; the Court condemned (u) Martin v. Robinson, 2 Cas. 
 
 the party in costs, suspending the temp. Lee, 535. 
 taxation while he continued a pau- 
 
 XXI., rule 18, 
 as to costs.
 
 282 
 
 Of Prolate. [Pt. i. Bk. iv. 
 
 that " the party opposing a Will may with his defence give 
 notice to the party setting up the Will, that he merely insists 
 upon the Will being proved in solemn form, and only intends 
 to cross-examine the witnesses produced in support 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 Court of Probate," 
 
 This rule re-enacts Eule 41 (Contentious Business), the 
 practice under which was that a next of kin who availed 
 himself of this rule was in the same position {x) as a next of 
 kin in the Prerogative Court, i.e., not liable to costs {y) : But, 
 if he called witnesses in support of pleas of undue execution, 
 and incapacity, or the like, his liability to costs was in the 
 discretion of the Court, and he was not, generally speaking, 
 condemned in costs, if there was a reasonable ground for 
 litigation (^r). But a failure to establish pleas of undue in- 
 fluence and fraud was, as a general rule, followed by con- 
 demnation in costs {a). 
 
 But it should be observed that where an action in the 
 Probate Division is tried by a Jury, the costs follow the 
 event unless the judge by whom such action, cause, matter, 
 or issue is tried, or the Court, shall for good cause otherwise 
 order. E. S. C. 1883, Order LXV. rule 1 {h). 
 
 (x) If the party opposing a Will L. E. 3 P. & D. 179.-^««. a^4.u,dA.. 
 
 does not deliver the notice of hi:? (:) Bramley v. Bramley, 3 Sw. & 
 
 intention not to call witnesses until Tr.430. Ferreyv. King,3S\v. &Tr. 
 
 after he has delivered his plea, he 51. Tippett v. Tippett, L. E. I P, 
 
 loses the protection against con- & D. 54. Smith v. Smith, L. E. 1 
 
 demnation in costs given Ly the P. & D. 239. 
 
 above rule 41, and the question of (a) Summerell v. Clements, 3 
 
 costs is left to the discretion of the Sw. & Tr. 35. Bone v. "Whittle, L. 
 
 Court. Bone v. Whittle, L. E. 1 E. 1 P. & D. 249. See also Ire- 
 
 P. & D. 249. See also Leeman v. land v. Bendall, L. E. 1 P. & D. 
 
 George, L. E. 1 P. & D, 542. 194. Harrington v. Bowyer, L. E. 
 
 (»;■) Cleare v. Cleare, L. E. IP. 2 P. & D. 264. 
 
 & D. 655. There may he cases, (6) See Morris v. Freeman, 3 P. 
 
 however, where he will be con- D. 65 ; Foley r. Brogan, 11 L. E. 
 
 demned in costs. Beale v. Beale, Ir. Ch. D. 421.
 
 Ch. II. § IV.] In Solemn Form. 283 
 
 Very material alterations iu the law, with respect to pro- 20 & 21 Vict. 
 
 c 77 s 61 
 bate in solemn form of Wills relating to real estate, were Heir'&c. to 
 
 effected by the Court of Probate Act, 1857 (20 & 21 Vict. ^'\^\fj^!'' 
 
 •^ » ■ \ a Will affecting 
 
 c. 77). One of the great objects of that Act was to prevent the real estate is 
 
 proved in 
 
 possibility of a double trial on the same Will : And accord- solemn form. 
 ingly it is enacted by sect. 61, that where the validity of a 
 Will affecting real estate is disputed, on proving it in solemn 
 form or any other contentious cause, the heir-at-law, devisees, 
 &c., shall be cited. And by sect. 62, after proof in solemn S. 62. 
 form, or where the validity of the Will is otherwise decided validity of the 
 on, the decree of the Court shall be binding on all persons ^Yj^^/^ ^^' 
 
 ' ° •'• cided on, the 
 
 interested in the real estate. decree of the 
 
 But by sect. 63, it is provided that the probate, decree or binding on the 
 order of the Court shall not in any case affect the heir or ^eTtTdin'^he 
 any person in respect of his interest in real estate, unless ^^al estate : 
 such heir or person has been cited or made party to the proyj^jed thev 
 proceedings, or derives title under or through a person so ^F"^ ^^^"^ 
 cited or made party. 
 
 These sections and others connected with and following 
 them will be found stated verbatim, and the whole subject of 
 the probate of disputed Wills affecting real estate will be 
 considered, in a subsequent part of this Treatise (c), together 
 with the inquiry as to the effect of probate generally. 
 
 The position of an heir-at-law cited under the 61st section Liability to 
 is similar to that of the next of kin when cited to see pro- at-iaw when 
 ceedings in the Prerogative Court, and therefore, though if *^'^®*^" 
 he contents himself with putting the executor to proof of 
 the Will, and cross-examining the witnesses, is not liable to 
 costs ; if he places pleas of undue influence and fraud on the 
 record, and fails in proof of them, he is liable to costs {d). 
 
 The inquiry as to the cases in which costs will be decreed When costs 
 
 ,»i " i> ^ -i Til • decreed out of 
 
 cut 01 the estate oi the deceased, and the general question as the estate, 
 
 to when the unsuccessful party will be condemned in costs, ^^.<^i *» ^^^ 
 
 will be discussed hereafter (e). unsuccessful 
 
 party. 
 
 (r) Pt. I. Bk. VI. Ch. I., p. 478. Tr. 279. 
 
 \d) Fyson v. Westrope, 1 Sw. & {e) Ft. i. Bk. iv. Ch. ll. § vir.
 
 284 
 
 Of rrohate. 
 
 [Pt. I. Bk. IV. 
 
 Rule 78. 
 Order for cita- 
 tion of heir, 
 &c. 
 
 It remains to be mcntioucd iu this place that by Rule 78 
 (Contentious Business), it is ordered that "any person pro- 
 ceeding to prove a Will iu 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 or purport to affect the real estate, will make an order 
 authorizing the person applying to cite the heir or heirs-at- 
 law or other such person or persons as aforesaid ; provided 
 always, that the judge may give any special directions as to 
 the persons to be cited which he may think the justice of 
 the case requires " (/). 
 
 Court of Pro- 
 bate Act, 1857, 
 s. 33. 
 
 Rules of evi- 
 dence in com- 
 mon law 
 Courts to be 
 observed. 
 
 Competency of 
 executor. 
 1 Vict. c. 26, 
 s. 17. 
 
 SECTION V. 
 
 Evidence in Testamentarij Causes. 
 
 It is now proposed to consider some rules of evidence with 
 respect to the admission of disputed Wills to probate. 
 
 By the Court of Probate Act, 1857 (21 & 22 Vict. c. 77, 
 s. 33), " The rules of evidence observed in the Superior Court 
 of Common Law at Westminster shall be applicable to and 
 observed in the trial of all questions of fact in the Court 
 of Probate." 
 
 By stat. 1 Vict. c. 26, s. 17, it is enacted, "That no person 
 shall, on account of his being an executor of a Will, be in- 
 
 (/) "Where an executor pro- 
 pounds the latter of two Wills, the 
 Court will direct a citation to issue 
 against the devisees under the 
 earlier Will and against the heir- 
 at-law, although already before the 
 Court as defendant in the suit : 
 Lister v. Smith, 3 Sw. & Tr. 53. 
 The fact of one co-heir being an 
 
 infant and child of a plaintiff is no 
 ground for the Court refusing to 
 allow such co-heir to be cited : 
 Nichols V. Binns, 1 Sw. & Tr. 19. 
 In this case Sir C. Cresswell ob- 
 served, that the 61st and 63rd sec- 
 tions do not seem quite consistent : 
 The former is more imperative in 
 its terms than the latter.
 
 Cli. II. § v.] Evidence in Testamentary Causes. 285 
 
 competent to be admitted a witness to prove the execution 
 of such Will, or a witness to prove the validity or invalidity 
 thereof." 
 
 This section renders an executor, who is also entitled to a Executor who 
 legacy in that character, a competent witness to support the jg ^ competent 
 Will, if he has released his legacy (a). r*"T '^ ^i^ 
 
 7 o J \u ' fjag released 
 
 And now, by stat. 6 & 7 Vict. c. 85 (which was held to his legacy. 
 apply to proceedings in the Ecclesiastical Court) (/t), com- ^-^gg^'/J^ 
 petency is conferred on interested witnesses generally ; and parties under 
 
 6 & 7 Vict. 
 
 by stat. 14 & 15 Vict. c. 99, s. 2, on parties to suits ; and c. 85, 14 & 15 
 
 Vict c 99 
 
 by stat. 16 k 17 Vict. c. 83, s. 1, on husbands and wives of and 16 & 17 
 parties. ^^^'^*- "^^ ^'^• 
 
 By stat. 17 & 18 Vict. c. 47, " In any suit or proceeding 17 & 18 Vict. 
 depending in any Ecclesiastical Court in England or Wales, witnesses may 
 the Court (if it shall think fit) may summon before it and be summoned 
 
 ^ 'J and examined 
 
 examine, or cause to be examined, witnesses by word of mouth, ^'*'^« ^'^'^^• 
 and either before or after examination by deposition or affidavit ; 
 and notes of such evidence shall be taken down in writing by 
 the judge or registrar, or by such other person or persons, and 
 in such manner, as the judge of the Court shall direct." 
 
 By stat. 20 & 21 Vict. c. 77, s. 31, " Subject to the regula- Mode of taking 
 tions to be established by such rules and orders as aforesaid, contentious 
 the witnesses, and where necessary, the parties, in all con- matters under 
 tentious matters, where their attendance can be had, shall be Probate Act, 
 examined orally by or before the judge in open Court ; pro- ' 
 vided always, that, subject to any such regulations as afore- 
 said, the parties shall be at liberty to verify 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 afore- 
 said ; 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." 
 
 {g) Muuday v. Slaughter, 2 Curt. {h) This Act did not repeal any 
 
 72. of the provisions of the Wills Act.
 
 286 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 Sect. 32. 
 Court may 
 issue commis- 
 sions or give 
 orders for ex- 
 amination of 
 •witnesses 
 abroad or who 
 are unable to 
 attend. 
 
 Attesting wit- 
 nesses : 
 
 not necesfsary 
 to call botb. 
 
 And by sect. 32, it is 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 (i), 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 wdtness 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 thir- 
 teenth year of King George the Third, chapter sixty-three, 
 and of the first year of King \yilliam 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 examination, and all the provisions of the said Acts, 
 and of any other Acts for enforcing or otherwise, applicable 
 to such examination, 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." 
 
 Formerly the general rule was, that if a party be put to 
 proof of a Will, he must examine the attesting witnesses. 
 
 But since the passing of the Court of Probate Act, 1857, 
 section 33 {k), it has not been necessary to call both the 
 attesting witnesses to prove the execution ; for in the Courts 
 of Law the execution of a Will may be proved by calling one 
 only of the attesting witnesses {I). 
 
 (i) See Brown v. Brown, L. K. 
 1 P. & D. 720. 
 
 [k) See ante, p. 284. 
 
 (0 Belbin v. Skeats, 1 Sw. & Tr. 
 148. Forster v. Forster, 33 L. J., 
 P. M. & A. 113. BoA^-man v.
 
 Ch. II. § v.] Evidence in Testamentary Causes. 287 
 
 In the Ecclesiastical Courts on affidavit that an attesting Practice in 
 witness had been diligently sought, and could not be found, courts where 
 an executor might pray publication : but the other party had ^"s^t^^g ^i*- 
 
 o r J r ' r J ngss could not 
 
 a right to a monition against the witness to attend for cross- be found. 
 examination, if they could discover him (m). 
 
 There has already been occasion to show (n) that a Will 
 may be admitted to probate, as duly executed under the 
 Wills Act, notwithstanding the attesting witnesses may have 
 no recollection at all as to the circumstances attending the 
 execution, or notwithstanding one only should affirm and the 
 other negative, or even both should negative a compliance 
 with the statute, or the capacity of the testator (o). 
 
 The Ecclesiastical Court always allowed witnesses skilled Doctrine of 
 in the examination of handwriting and detection of forgeries Courts as to 
 to depose to their opinion, upon comparison of the writing in "p*^ ° ^^^^^i, 
 question with other documents admitted to be in the hand- writing : 
 writing of the party, or proved to be so by persons who saw 
 them written ; whereas, in the Common Law Courts, this in Common 
 mode of evidence was rejected until the passing of the stat. ^^^j. to"com- 
 17 & 18 Vict. c. 125 ( p). mo" i^aw Pro- 
 
 cedure Act, 
 
 Hodgson, L. R. 1 P. & D. 362. dence, 14tli edit. p. 131. In a 
 But where the party propounding suit for revocation of probate on 
 a Will, in a contested suit called the grounds of undue influence 
 one of the attesting witnesses who and incapacity where it appeared 
 gave evidence against the due that every effort had been made 
 execution, Sir C. Cresswell held to find one of the attesting wit- 
 that he was bound to call the nesses but without success, the 
 other attesting witness : Owen v. Court allowed the affidavit made 
 Williams, 32 L. J., P. M. & A. 159. by him eight years before at the 
 See also Coles v. Coles, L. E,. 1 P. time of proving the Will in the 
 & D. 70. District Registry to be admitted 
 (m) Mynn v. Robinson, 1 Hagg. as evidence of execution and capa- 
 68. Where the attesting witness city : Gomall v. Mason, 12 P. D. 
 is dead, or insane, or absent in a 142. See also Millar v. Sheppard, 
 foreign country, or not amenable 2 Cas. temp. Lee, 520, as tojjroving 
 to the process of the superior the handwriting of a witness when 
 Courts, or where he cannot be residing in an enemy's country.] 
 found after diligent enquiry, (n) Ante, p. 91, et seq. 
 evidence of the witness's hand- (o) See ante, p. 31, et seq. 
 writing has always been admis- ( p) By sect. 27, " Comparison 
 gible : Roscoe's Nisi Prius Evi- of a disputed writing witli aiiv 
 
 1854,
 
 '288 
 
 Rule that on 
 proof of sign- 
 ing, instruc- 
 tions and 
 knowledge of 
 the contents 
 shall be pre- 
 sumed : 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 Generally speaking, where there is proof of signature, 
 every thing else is implied till the contrary is proved ; and 
 evidence of the Will having been read over to the testator, 
 or of instructions having been given, is not necessary {q) : 
 for when an instrument has been executed by a competent 
 person, it must be presumed that the party so executing 
 knew the contents and the effect of the instrument, and that 
 he intended to give that effect to it (r). 
 
 wiitiBg proved to the satisfaction 
 of tte Judge to be genuine, shall 
 be permitted to be made by wit- 
 nesses ; and such, writings, and the 
 evidence of the witnesses respect- 
 ing the same, may be submitted to 
 the Court and jury as e-\ddence of 
 the genuineness, or otherwise, of 
 the waiting in dispute." 
 
 (g) Billinghurst r. Vickers, 1 
 Pliillim. 187, 191. Cleare v. Cleare, 
 L. R. 1 P. & D. 655. 
 
 (r) Fawcett v. Jones, 3 Pliillim. 
 476. Wheeler v. Alderson, 3 Hagg. 
 587. Browning v. Budd, 6 Moo. 
 P. C. 435. The burden of proof 
 that a testator knew and approved 
 of the contents of a Will pro- 
 pounded is upon the person who 
 propounds it : Cleare v. Cleare, L. 
 E. 1 P. & D. 655. And if it be 
 proved or admitted that a testator 
 is of sound mind, memory and 
 understanding, that a Will has 
 been read over to him, or that he 
 has read it to himself and that he 
 has put his signatiu'e to it, the 
 question whether he knew and 
 approved of the contents of such 
 Will must be answered in the 
 affirmative : Atter v. Atkinson, 
 L. R. 1 P. & D. 665. But there is 
 no unyielding rule of law (espe- 
 cially when the ingredient of 
 fraud enters into the case) that 
 when it has been proved that a 
 
 testator, competent in mind, has 
 had a Will read over to him and 
 has thereupon executed it, all 
 further enquiry is shut out : Fulton 
 V. Andrew, L. R. 7 H. L. 448. 
 See also on the question of testa- 
 tor's knowledge and approval of 
 the contents of a Will, the case of 
 Goodacre v. Smith, L. R. 1 P. 
 & D. 359. Approbation will 
 have the effect of prior instruc- 
 tions : Forfar v. Heastie, 2 Cas. 
 temp. Lee, 310. Durnell v. Cor- 
 field, 1 Robert. 56. Moreover, a 
 testator may, if he likes, authorize 
 another person to make a will for 
 him and may say, " I do not know 
 what you have put down, but I 
 am quite ready to execute it," and 
 such a Will would be admitted to 
 probate : p^r Sir C. Cresswell, 
 Cunliffe v. Cross, 3 Sw, & Tr. 38. 
 Accordingly that learned judge 
 held a plea that the alleged codicil 
 was not prepared in conformity 
 with the intentions of the deceased, 
 and the deceased, at the time of 
 the execution of the alleged codi- 
 cil, was ignorant of the contents 
 thereof, to be bad on demurrer : 
 CunUfte V. Cross, 3 Sw. & Tr. 37. 
 If a testatrix has given instruc- 
 tions for her Will and it is pre- 
 pared in accordance with them, 
 the Will will be valid, though at 
 the time of execution the testatrix
 
 Ch. II, § v.] Evidence in Testamentary Causes. 289 
 
 Thus, although the rule of the Koman Law that '' Qui se where the 
 scj'ijJsit h(e7'edem" could take no benefit under a Will, does writer of his 
 not prevail in the law in England, yet, where the person who ^'^o^'^^'- 
 prepares the instrument, or conducts its execution, is himself 
 benefited by its dispositions, that is a circumstance which 
 ought generally to excite the suspicion of the Court, and calls 
 on it to be vigilant and jealous in examining the evidence 
 in support of the instrument, in favour of which it ought not 
 to pronounce, unless the suspicion is removed, and it is judi- 
 cially satisfied that the paper does express the true Will of 
 the deceased (s). 
 
 Where the testator is blind, it must be proved that the where the tes- 
 contents of the Will were known to the deceased : for his or cannot read : 
 execution, or other acknowledgment of the Will, is not suffi- 
 cient, and the same, where from want of education, or from 
 bodily affliction, he is unable to read (t). 
 
 So it is an established rule in the Spiritual Court, that where the ca- 
 where the capacity of the testator is doubtful at the time testator is 
 of execution, there must be proof of instruction, or of reading '^°"'^* ' 
 over, or other satisfactory evidence, of some kind, that he 
 knew and approved of the contents of the Will (u). But this 
 
 merely recollects that she has allowed to confide in his friend or 
 
 given those instructions but be- solicitor, and depute him to draw 
 
 lieves that the Will is in accord- up his Will, and adopt it when so 
 
 ance with them : Parker v. Felgate, drawn up, without ascertaining 
 
 8 P. D. 171. See also Middlehurst what the contents of it are; par- 
 
 V. Johnson, 30 L. J., P. M, & A. ticularly in Wills containing com- 
 
 14. But see contra Hastelow v. plicated limitations it would seem 
 
 Stobie, L. R. 1 P. & D. 64. 35 to be unjust to require that the 
 
 L. J., P. M. & A. 18. S. C. 11 testator should understand each 
 
 Jul, N. S. 1039, where Sir J. P. limitation, which the solicitor, in 
 
 Wilde held a plea " that the de- whom he has confided, has thought 
 
 ceased did not know and approve proper to insert, 
 of the contents of the Will" to be (s) See ante, p. 99. Dufaur v. 
 
 good. See also Cleare v. Cleare, Croft, 3 Moore, P. C. C. 136. 
 
 L. R. 1 P. & D. 655. Sutton v. Durnell v. Corfield, 1 Robert. 51. 
 
 Sadler, 3 C. B. (N. S.) 88, 99. Barry v. Butlin, 2 Moo. P. C. 480. 
 
 But it may be doubted whether Fulton v. Andrew, L. R. 7 H. L, 
 
 the view taken by Sir C. Cresswell 448. 
 
 is not more correct. It is surely a (t) Ante, pp. 13, 14. See Rule 71, 
 
 somewhat harsh con-struction of P. R. 1862 (Non-contentious). 
 the law that a man shall not be (u) Ante, p. 100. Billinghurst 
 
 W.E. — VOL. I. U
 
 290 
 
 Of Probate. 
 
 [Pt. L Bk. IV. 
 
 seauian'.s Will 
 in favour of 
 his a^eut. 
 
 Proof of Will 
 by mere evi- 
 dence of hand- 
 writing of 
 attesting wit- 
 nesses. 
 
 rule only applies, or at least only applies with any stringency, 
 where the instrument is inofficious, i.e. not consonant to the 
 testator's natural affections and moral duties, or where it is 
 obtained by a party materially benefited {x). In a case where 
 a Will had been propounded in a condidit, and the three 
 attesting witnesses only had been examined : The testatrix 
 was upwards of eighty years of age and very infirm ; she was 
 deaf and almost blind ; and the instrument had been drawn 
 up from directions given by the executor, who was partially 
 the residuary legatee, and no instructions were proved to have 
 been given by the deceased : Sir H. Jenner Fust pronounced 
 against the validity of the Will, not on the supposition of 
 any fraud having been practised, but on the ground of failure 
 of proof (?/). 
 
 Where the alleged Will of a seaman is in favour of his 
 agent, there must be clear proof not only of the subscription 
 of the deceased to the instrument, but also of his knowledge 
 of its nature and effect {z). 
 
 Under certain circumstances, the validity of a Will may 
 be established by proving the handwriting of the attesting 
 witnesses, though no evidence can be given, either of instruc- 
 tions, or of the handwriting of the deceased (a) . 
 
 Parol evidence 
 respecting the 
 intention of 
 
 In a Court of Construction, when the factum of the 
 instrument has been previously established in the Court 
 to w*hat*suil^ o^ Probate, the inquiry is almost closely restricted to the 
 contents of the instrument itself, in order to ascertain the 
 intentions of the testator (h) : But in the Court of Probate 
 the inquiry is not so limited ; for there the intentions of the 
 deceased, as to what shall operate as, and compose his Will, 
 are to be collected from all the circumstances of the case 
 
 to what shall 
 operate as and 
 compose bis 
 Will : 
 
 V. Vickers, 1 Philliin. 193. Barry 
 V. Butlin, ante, p. 99. Mitchell 
 V. Thomas, 6 Moo. P. C. 137; 
 Browning v. Budd, 6 Moo. P. C. 
 430. 
 
 (x) Brogden v. Brown, 2 Add. 449. 
 
 (y) Sankey r. Lilley, 1 Curt. 402. 
 See also Harwood v. Baker, 3 Moo. 
 
 P. C. C. 282. Dufaur v. Croft, 3 
 Moo. P. C. C. 136. 
 
 (z) Zacharias v. Collis, 3 Phil- 
 liin. 202. 
 
 (a) Anderson v. Welch, 1 Cas. 
 temp. Lee, 577. 
 
 {b] See Re By water, 18 C D. 17. 
 
 I
 
 Ch, II. § Y.]) Evidence in Testamentary Causes. 
 
 291 
 
 taken together (c). They must, however, be circumstances 
 existing at the time the Will is made {d). 
 
 Therefore, if there is an ambiguity upon the factum of receivable if 
 the instrument, parol evidence may be admitted, under ambiguity on 
 some circumstances, in the Court of Probate, to explain the ^^^ /«c«Mm •• 
 intention of the testator. By ambiguity upon the factum is 
 meant, not an ambiguity upon the construction, as whether 
 a particular clause shall have a particular effect, but an 
 ambiguity as to the foundation itself of the instrument, or 
 a particular part of it : As, whether the testator meant a 
 particular clause to be part of the instrument, or whether 
 it was introduced without his knowledge : whether a codicil 
 was meant to republish a former or a subsequent Will (e) : or 
 whether a codicil, purporting on its face to confirm other 
 codicils of dates subsequent to that of its own execution, was 
 correctly dated (/) : these are matters of ambiguity upon the 
 factum of the instrument. 
 
 But it was considered as a rule in the Prerogative Court, 
 
 what is such 
 aa ambiguity : 
 
 (c) Greenougli v. Martin, 2 Add. 
 243. Methuen v. Metlmen, 2 Phil- 
 lim. 426. In the goods of English, 
 3 Sw. & Tr. 586. Eobertson v. 
 Smith, L. E. 2 P. & D. 43. Jenner 
 V. Ffinch, 5 P. D. 106. See also 
 the cases collected, ante, p. 95, 
 note (e). 
 
 {d) Stockwell v. Eitherdon, 1 
 Eobert. 661, 658. 6 Notes of Cas. 
 415, 'per Sir H. J. Fust : but in 
 Gould V. Lakes, 6 P. D. 1, it was 
 held that statements of a testatrix 
 whether made before or after the 
 execution of the Will are admissible 
 to show what papers constitute the 
 Will. 
 
 (e) Lord St. Helens v. Lady 
 Exeter, 3 Phillim. 461, note {g). 
 There the testator left a Will, 
 dated 13th Dec. 1800, and a codi- 
 cil all in his own handwriting be- 
 ginning, " This is a codicil to my 
 last Will and testament of the 
 10th Jan. 17.08, and I do hereby 
 
 ratify and confirm my said Will : " 
 On the part of the executors it was 
 alleged that at the time of the exe- 
 cution of the codicil the deceased 
 was at Burghley, and copied this 
 from a form which he had pro- 
 cured from his solicitor, and inad- 
 vertently copied the date from a 
 former Will, which it was to be 
 presumed had been destroyed, as 
 it could not be found : Parol evi- 
 dence was admitted to prove this 
 allegation, and show this mistake : 
 and the codicil was pronounced a 
 codicil to the Will of December, 
 1800. 
 
 (/) In the goods of Thomson, 
 L. E. 1 P. & D. 8. In the case of 
 EefTell v. Eeffell, L. E. 1 P. & D. 
 139, the Court held that parol 
 evidence is admissible to prove 
 that a Will was executed on a 
 date other than that which appears 
 upon the face of it. 
 
 u 2 
 
 the ambiguity 
 must be on the 
 face of the in- 
 strument :
 
 292 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 and be com- 
 pletely re- 
 moved by the 
 proposed proof : 
 when no 
 ambiguity on 
 face of the 
 instruTOPnt, 
 parol e^ idence 
 inadmissible. 
 
 Omissions can- 
 not be supplied 
 from the in- 
 
 tbat, in order to justify the admission of parol evidence 
 to explain an ambiguity upon the factum of an instrument, 
 the amhiguity must he upon the face of the imper ; and 
 further, the facts alleged and to be proved must completely 
 remove that ambiguity {g). When no ambiguity whatever 
 appears upon the face of the instrument, the Court will 
 not admit parol evidence : Thus in the case of Fawcett 
 V. Jones (h), the allegation stated in substance that the 
 residuary clause of the Will was not co-extensive with the 
 instructions given by the party deceased, and the allegation 
 also contained an averment, (which it was proposed to 
 support by parol evidence only), suggesting that such varia- 
 tion was not made by any directions received from the 
 deceased, nor with his privity or knowledge, but through 
 mere error and oversight of the drawer, and of the testatrix 
 herself ; and the Court was prayed to pronounce for the part 
 of the instructions so alleged to have been omitted as part of 
 the Will : But Sir John Xicholl, in a very elaborate judgment, 
 in which all the previous cases upon the subject are collected 
 and commented upon, refused to admit the allegation, on the 
 ground that the Will had been regularly executed, and there 
 was no ambiguity apparent upon the face of it. 
 
 It was said that as to undue omissions or insertions in 
 Wills, the result prior to the Wills Act of the authorities 
 connected with this subject is, that where these two conditions 
 are satisfied, viz. 1. Some absurdity or ambiguity on the face 
 of the Will ascribable to something either omitted or inserted ; 
 and 2. Clear and satisfactory proof that the insertion or 
 omission was contrary to the intention of the testator ; the 
 Court is at liberty, and even bound, to pronounce for the 
 Will, not in its actual state, but with such error first 
 reformed or corrected, either by the insertion of the passage 
 omitted, or by the omission of that inserted. 
 
 With respect to Wills made on and after January 1, 1838, 
 
 {g) Fawcett v. Jones, 3 Phillim. 
 434. Draper v. Hitch, 1 Hagg. 
 678. Harrison v. Stone, 2 Hagg. 
 550. Shadbolt v. Waugh, 3 Hagg. 
 
 570 : and see Sandford v. Vaughan 
 1 PhiUim. 128. 
 {h) 3 PhiUim. 434.
 
 Cli. I. § v.] Omissions, (&c., supplied in Wills. 
 
 293 
 
 it is i^lain that, by reason of the provisions of the stat, 
 1 Vict. c. 26, the whole of every testamentary disposition 
 must be in writing, and signed and attested pursuant to 
 the Act : Whence it follows, that the Court has no power to 
 correct omissions or mistakes by reference to the instructions 
 in any case to which that statute extends (i). The Court, 
 iowever, has power, if words have been inserted in a Will 
 by fraud {k), or by mistake, without the knowledge of the 
 testator (I) to correct the error by omission of words so 
 inserted and, to negative the knowledge of the testator, to 
 
 {i) 111 the goods of Wilson, 2 
 dirt. 853. Stanley v. Stanley, 2 
 Jolins. & H. 491. Harter'y. Harter, 
 L. R. 3 P. & D. 1 1 . See also Birks 
 u Birks, 4 Sw. & Tr. 23, 31 ; 34 L. 
 J., P. M. & A. 92, x>er Sir J. P. 
 Wilde. Guardhouse v. Blackburn, 
 1 Law Rep. P. & D. 109, where 
 that learned judge stated the 
 ■general rules which, since the 
 Wills Act, ought to govern ques- 
 tions of this nature. 
 
 {k) Allen v. McPherson, 3 Phil. 
 455. Guardhouse v. Blackburn, 
 L. R. 1 P. & D. 109, 116. 
 uLdu^dLtu. (') ^^ ^^^ goods of Duane, 2 Sw. 
 & Tr. 590. In the goods of Oswald, 
 L. R. 3 P. & D. 162. A testator, 
 in the instructions for his Will, 
 directed that all his B. shares 
 thould be given to his nephews, but 
 the word "forty" was inserted 
 several times in the Will before 
 the word " shares," and the Will 
 was executed with that word re- 
 peated several times before the 
 word " shares." The jury found 
 "that the word " forty " was intro- 
 duced by mistake, that the clauses in- 
 cluding the word were never read over 
 io the testator, anl that he only 
 approved of the Will on the suppo- 
 sition that all his B. shares were 
 given to his nephews, and there- 
 upon the Court ordered that the 
 
 structions iu 
 any case iu 
 Wills made 
 after Jan. 1, 
 1838. 
 
 1 Vict. c. 26. 
 
 Power of Court 
 to correct 
 error in case of 
 fraud or mis- 
 take without 
 knowledge of 
 testator. 
 
 word " forty " wherever it occurred 
 should be struck out. Morrell v. 
 Morrell, 7 P. D. 68. So where a 
 testator in giving instructions for 
 the preparation of his Will directed 
 that a bequest of .£10,000 should 
 be given to each of his unmarried 
 daughters " Georgiana " and " Flo- 
 rence," and the conveyancer who 
 prepared the Will by inadvertence 
 inserted the name " Georgiana" in 
 both clauses of the Will relating to 
 gifts to unmarried daughters and 
 omitted the name of " Florence " 
 altogether, it was held that probate 
 of the Will omitting the name of 
 " Georgiana " in the second clause 
 of the gift might be granted to the 
 executors. The draft was not read 
 over to the testator at any time, 
 but he did read what professed to 
 be an epitome of it, such epitome 
 being in accordance with the in- 
 structions. In the goods of Boehm 
 [1891], P. 247. Apart from fraud, 
 the fact that a Will has been duly 
 read over to a capable testator on 
 the occasion of its execution, or 
 that its contents have been brought 
 to his notice in any other way, 
 should, when coupled with its exe- 
 cution, be held conclusive evidence 
 that he approved of, as well as 
 knew, the contents thereof. Guard- 
 house V. Blackburn, L. R. 1 P. & 
 
 ^ 
 
 '^^(^^^^..cCcc
 
 294 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 refer to the instructions, but the Court has no power to 
 supply words accidentally omitted from a Will {m). 
 
 A verdict in an action of ejectment, brought for the purpose 
 of trying the validity of a Will as to realty, was not admissible 
 causef™^" '^^^ ^"^ ^^ allegation in a testamentary cause, respecting the same 
 Will, in the Ecclesiastical Court (??), 
 
 YeriHct in 
 ejectment : 
 inadmissible in 
 
 In -n-hat cases 
 the declara- 
 tions of the 
 testator are 
 admissible in 
 evidence. 
 
 Declarations 
 made before 
 execution of 
 Will admis- 
 sible. 
 
 Not only when the competency of the testator is in dispute, 
 but in all cases where there is any imputation of fraud in 
 the making of the Will, the declarations of the testator are 
 admissible in evidence respecting his dislike or affection 
 for his relations, or those who appear in the Will to be the 
 objects of his bounty, and respecting his intentions either to 
 benefit them or to pass them by in the disposition of his 
 property (o). So it was held by the Court of Q. B. in Doc 
 V. Palmer (p), that, in order to rebut the presumption which, 
 as there has already been occasion to mention (q), exists that 
 unattested alterations appearing on the face of a Will were 
 made after the execution, it is allowable to give evidence of 
 declarations of the testator, made before the execution, of 
 his intention to provide by his Will for a person who would 
 be unprovided for without the alterations in question (r) : 
 But that Court further held his declarations inadmissible, 
 which v.ere made after the execution, to the effect that the 
 
 D. 109, llfi. FultMU V. Aiulrew, 
 L. R. 7 H. L. 448. But where the 
 rejection of part alters the sense of 
 the remainder, qucere, whether 
 there is a valid Will within the 
 meaning of 1 Vict. c. 26, s. 9. 
 Rhodes v. Rhodes, 7 A. C. 192. 
 
 (m) Harter r. Haiter, L. R. 3 P. 
 & D. 11. But in the case of In the 
 goods of Bushell, 13 P. D. 7, Butt, 
 J., granted probate of a Will with 
 the word " Bristol " suhstitiited for 
 " British " inserted in the Will by 
 mistake in copying the Will : the 
 Will not having been read over to 
 the testator. And in In the goods 
 of Huddleston, 63 L. T. N. S. 
 255, the word '• including " was 
 
 substituted for " excluding." 
 
 (n) Griudallr. Grindall, 3 Hagg. 
 259. 
 
 (o) Doe V. Palmer, 16 Q.B. 747, 
 759. 
 
 (jO lb., 747. 
 
 (q) Ante, pp. 112, 213. 
 
 (r) See also Dench v. Dench, 2 
 P. D. 60. So where the name of 
 the executor appointed by a Will 
 was written on an erasure, the 
 Court admitted a declaration of the 
 testator as to the person he had 
 appointed executor, made before 
 the execution of a codicil which 
 referred to the Will. In the 
 goods of Svkes, L. R., 3 P. & D. 
 26.
 
 Cli. II. § v.] Evidence m Testamentary Causes. 
 
 295 
 
 alterations had been made previously : And Lord Campbell, 
 
 in giving the judgment, said, the Court could not be guided 
 
 alone by the consideration that both parties claimed under 
 
 the testator ; for his declarations, made after a time when a Declarations 
 
 controverted will is supposed to have been executed, would ^ecutwn of 
 
 not be admissible to prove that it had been duly signed ^'|' ina.imig- 
 
 and executed as the law requires (s). In many cases the 
 
 declarations of a testator made after a Will has been executed 
 
 are admissible and are most important, e.g., in questions as 
 
 to testamentary capacity and fraud {ss) . Declarations of the 
 
 testator have been deemed admissible to prove the fact of 
 
 the destruction of a Will, even in cases where no fraud or 
 
 misconduct is imputed {t). 
 
 Upon a question between heir and devisee as to the 
 competency of the testator at the time of making his Will, it 
 was held to be no misdirection to tell the jury that they 
 
 (s) Doe V. Paliucr, 16 Q. B. 747, 
 at p. 757. See Accord. In the 
 goods of Ripley, 1 Sw. & Tr. 68. 
 In the goods of Hardy, 30 L. J., P. 
 M. & A. 142. Staines v. Stewart, 
 2 Sw. & Tr. 320. The verbal and 
 written declarations or statements 
 made by a testator in and about 
 the making of his Will, when 
 accompanying acts done by him in 
 relation to the same subject, are 
 admissible as evidence of the con- 
 tents of the Will. Johnson v. 
 Lyford, L. R. 1 P. & D. 546. 
 Evidence, however, of the declara- 
 tions of a testator as to the contents 
 of his Will not forthcoming, 
 whether made before or after its 
 execution, are admissible to prove 
 its contents : Sugden v. Lord St. 
 Leonards, IP. D. 154, overruling 
 Quick V. Quick, 3 Sw. & Tr. 442. 
 Mellish, L. J., dissentiente. See 
 also Johnson v. Lyford, ubi sup., 
 and Woodward v. Gouldstone, 11 
 App. Cas. 469, in which case doubt 
 was expressed whether post-testa- 
 
 mentary declarations of a testator 
 as to the contents of a lost will are 
 admissible. 
 
 (s.s) Per Sir C. Cresswell, in In 
 the goods of Hardy, 30 L. J., P. 
 M. & A. 143. 
 
 (0 See Hale v. Tokelove, 2 
 Robert, 328, by Dr. Lushington. 
 Where evidence was produced of 
 declarations of a testator showing 
 an intention to adhere to a will in 
 order to rebut the presumption of 
 revocation, arising from its being 
 not forthcoming after his death, 
 Sir J. Hannen held that evidence 
 of declarations of an intention not 
 to adhere to the Will, produced by 
 the opponents to the Will, was ad- 
 missible to contradict the evidence 
 of adlierence, and that therefore a 
 declaration by the testator that he 
 had burnt his Will was admissible, 
 not as evidence of the fact of 
 destruction but as evidence of in- 
 tention. Keen v. Keen, L. R. 3 
 P. & D. 105.
 
 296 Of Probate. [Pt. i. Bk. iv. 
 
 might take into consideration statements made by the testator 
 as to the dispositions contained in his Will, and which, in 
 fact, corresponded therewith, as throwing back light on the 
 period at which the Will was executed (a year before), and as 
 aft'ording means of inferring what was the state of his 
 competency at that period («). 
 
 SECTION YI. 
 
 Of the Probate of Wills of Foreigners, cCc, and of British 
 Subjects domiciled out of the Jurisdiction of the Court. 
 
 If tlie ileceased If the testator died without leaving any personal property 
 
 sonalty in this in this country, generally speaking, his Will need not be 
 
 wm need not pi'o^ed in any Court of Probate here : and, therefore, where 
 
 be proved Lere: i]^q plaintiff, as administrator of 1. S., who died at Naples, 
 
 brought his bill to have a discovery of the intestate's personal 
 
 eflects, the defendant pleaded that the deceased had by his 
 
 Will made him, the defendant, his executor, and he had 
 
 proved the Will according to the law of the country ; and he 
 
 denied that the deceased had left any estate but what was at 
 
 Naples : and this plea was held good (.r)- 
 
 unless his exe- But if a foreign executor should find it necessary to insti- 
 
 cutor institute ^ 
 
 a suit : tuto a suit here, to recover a debt due to his testator, he must 
 
 prove the Will here also, or a personal representative must 
 be constituted by the Court of Probate here to administer 
 ad litem (y). So an executor having obtained probate in 
 Ireland could not bring an action here as executor, even to 
 recover Irish assets, without having obtained probate in 
 England also {z). For the Courts here will not recognize 
 
 (u) Sutton V. Sadler, 3 C. B., N.S. M. & W. 193. 
 
 99. See also Whiteley v. King, 17 {z) Carter v. Crofts, Godb. 33. 
 
 C. B. N. S. 756. Whyte v. Rose, 3 Q. B. 508, per 
 
 (j-) Jauncey v. Sealey, 1 Vein. Tindal, C. J. But now sealing an 
 
 397. Post, Pt. I. Bk. V. Ch. ii. Irish probate or a Scotch confirma- 
 
 § I. tion gives them a like force and 
 
 {y) Attorney-General v. Cocke- effect as if a Probate had been 
 
 rell, 1 Price, 179, by Richards, granted ; See 20 & 21 Yict. c. 79, 
 
 B. Mitf. PI. 177,4th edition. §95. 2 1 & 22 Vict. c. 95, § 29, and 
 
 Tyler r. Bell, 2 M. & Cr. 89. Rule 73, P. R. 1862 (Xon-Con- 
 
 Attorney-General v. Bouwens, 4 tentiousj, as to Irish probates : and
 
 Ch. 11. § vl] Oftlie Wills of Foreigners, cCr. 297 
 
 any Will of personalty except such as the Court of Probate 
 of this country has by the probate adjudged to be the last 
 Will (a). Therefore, if a testator die in India, and his 
 personal estate be wholly there, and his executor be resident 
 there, and the Will be proved there, yet if a part of the 
 assets remain in the hands of the executor unappropriated, 
 and come to be administered in England, and a legatee in 
 England institute a suit here for the payment of his legacy 
 out of such unappropriated assets, administration to the 
 testator ought to be taken out in this country, and the 
 administrator made a party to the suit Qj). So to a bill 
 which seeks an account of the assets of an intestate, who 
 died in India, possessed by a personal representative there, 
 a personal representative of the intestate, constituted in 
 England, is a necessary party, though it does not appear that 
 the intestate, at the time of his death, had any assets in 
 England (c). And it may be stated, as a fully established 
 rule, that in order to sue in any Court of this country, 
 whether of law or equity, in respect of the personal rights or 
 property of a deceased person, the plaintiff must, except in 
 the case of Irish probates and Scotch confirmations resealed, 
 appear to have obtained probate or letters of administration in 
 the Court of Probate of this country {(I) . 
 
 21 «& 22 Vict. c. 56, §§ 9, 12 & 14, note to the American edition 
 
 as to Scotch contirmations. of the present Treatise, (which 
 
 (a) Price v. Dewhuist, 4 M. & Mr. Francis I. Troubat has done 
 Cr. 80, 81. Bond v. Graham, 1 the author the honour of pub- 
 Hare, 484. Lasseur v. Tyrconnel, lishing at Philadelphia), that it 
 10 Beav. 28. has been established as a rule, 
 
 (6) Logan v. Fairlie, 2 Sim. & by repeated decisions in many of 
 
 Stu. 284. 1 Myln. & Cr. 59. See the States, that the executor or 
 
 also Lowe V. Fairlie, 2 Madd. administrator of a person who dies 
 
 101. domiciled in Great Britain, or any 
 
 (c) Tyler v. Bell, 2 Myln. & Cr, other foreign countiy, cannot 
 
 89. Bond v. Graham, 1 Hare, maintain an action in the United 
 
 482. See post, Pt. v. Bk. ii. Ch. States, by virtue of letters testa- 
 
 II. mentary or administration granted 
 
 {d) Whyte v. Rose, 3 Q. B. 507. to him in the country where the 
 
 See also M'Mahon v. Rawlin^s, deceased died : But that on the 
 
 'SO 
 
 16 Sim. 429. Enohin v. Wylio, ground of them, an ancillary pro- 
 10 H. of L. 19, '][)fir Lord Cran- bate authority or administration 
 worth. It appears from an able will be granted : And further.
 
 298 
 
 OfProhate. 
 
 [Pt. I. Bk. IV. 
 
 tut a "\Till 
 made abroad 
 of j)roj:erty in 
 this country 
 must be proved 
 here : 
 
 Stat. 21 k 22 
 Vict. c. 56, 
 .s. 12. 
 
 Scotch confir- 
 mation pro- 
 duced in Pro- 
 bate Court of 
 England, and 
 sealed tliere, 
 to have the 
 effect of pro- 
 bate or ad- 
 ministration. 
 
 Likewise, if a Will be made in a foreign country, and 
 proved there, disposing of personal property in this country, 
 the executor must prove the Will here also (e). And gene- 
 rally speaking, the Court of Probate in this country will 
 adopt the decision of the Court of Probate in the foreign 
 country in which the testator died domiciled (/). 
 
 And now by stat. 21 & 22 Vict. c. 56, s. 12, " When any 
 confirmation (which is the Scotch term for Probate) of the 
 executor of a person who shall in manner aforesaid be found 
 to have died domiciled in Scotland which includes besides 
 the personal estate situated in Scotland, also personal estate 
 situated in England, shall be produced in the principal Court 
 of Probate, in England, and a copy thereof deposited with 
 the registrar, together with a certified copy of the interlocutor 
 of the commissary, finding that such deceased person died 
 domiciled in Scotland, such confirmation shall be sealed 
 with the seal of the said Court and returned to the person 
 producing the same, and shall thereafter have the like force 
 and effect in England as if a probate or letters of administra- 
 
 that the rule just mentioned does 
 not apply, except where the party 
 sues in right of the deceased: If 
 he sues in his own right, although 
 that right be derived under a 
 foreign Will, no administration 
 need he taken out in the United 
 States. See also Story's Confl. of 
 L. Ch. viii. ss. 513, 516, 517, and 
 the note of Mr. Asa Fish to the 
 5th American edition of this work. 
 And see Accord. Vanquelin v, 
 Bouard, 15 C. B., N. S. 341. 
 
 (e) Lee v. Moore, Palm. 1G3. 
 TouTton V. Flower, 3 P. Wms. 369. 
 Vanthienen v. Vanthienen, Fitzgib. 
 204. 
 
 (/) See post, p. 302. See Ray- 
 mond V. De Watteville, 2 Cas. 
 temp. Lee, 358, as to the proper 
 authentication of a copy of a 
 "Will proved and deposited in a 
 Court of a foreign State. Before 
 granting probate of a foreign Will 
 
 the Court should be satisfied of 
 one of two things, viz., either that 
 the Will is valid by the law of the 
 country where the testator was 
 domiciled, or that a Court of the 
 foreign country has acted upon it 
 and given it efficiency. In the 
 goods of Deshais, 34 L. J. P. & M. 
 58. R. domiciled in Mexico made 
 a Will according to the law of 
 Mexico. The proper Court there 
 decreed probate of a Spanish 
 translation and not of the original. 
 It was held that the grant in this 
 country must be made upon the 
 production of an English transla- 
 tion of the Spanish copy and not 
 of a certified copy of the origi- 
 nal : In the goods of Rule, 4 
 P. D. 76. See also In the 
 goods of Clarke, 36 L. J. P. & M. 
 72. In a case where the Will of a 
 British subject domiciled abroad at 
 the time of his death had been
 
 Ch. II. § VI.] Of the Wills of Foreigners, d-c. 
 
 299 
 
 tion, as the case may be (//), had been granted by the said 
 Court of Probate " (A). 
 
 And as to Irish probates it is provided by 20 & 21 Vict. 20 & 21 \lct. 
 
 c, / y J s. y o« 
 
 c. 79, s. 95, " From and after the period at which this Act Probates 
 shall come into operation, when any probate or letters of Ireland to be 
 administration to be granted by the Court of Probate in °^ like force 
 Ireland shall be produced to, and a copy thereof deposited granted ia 
 with the registrars of the Court of Probate in England, such being re- 
 probate or letters of administration shall be sealed with the ^'^^ ^^ ' 
 
 proved in the Frencli Courts and 
 deposited with a notary who Ly the 
 law of France was forbidden to 
 allow it to be removed from his 
 custody, it was held that probate 
 might be granted of a copy of the 
 original Will properly proved, 
 limited to such time as might 
 elajise before the original itself 
 should be brought in. In the goods 
 of Lemme [1892J, P. 89. 
 
 {g) Where confirmation of the 
 executor of a person who has died 
 domiciled in Scotland has been 
 sealed with the Seal of the Court 
 of Probate, in manner provided by 
 this section, the executor has all 
 the powers of an ordinary English 
 executor, and may sell and dispose 
 of leaseholds in England, although 
 they are specifically bequeathed, 
 and although, by the law of Scot- 
 land, an executor cannot deal with 
 leasehold property in that country : 
 Hood V. Barrington, L. R. 6 Eq. 
 218. W. E. died possessed of 
 property of small value in this 
 country and entitled under tlie 
 Will of his uncle to large assets in 
 Scotland which were being duly 
 administered there. The execiitors 
 of W. E. proved his Will in Scot- 
 land only. A legatee under 
 W. E.'s Will applied for a grant 
 of administration of the estate of 
 W. E. in this country, whicli 
 
 application was opposed by the 
 executors. It was held (1) that 
 the Court is not bound to make 
 such a grant but that its power is 
 discretionary ; and (2), that, it 
 not having been shown that the 
 executors were not doing their 
 duty, there was no necessity for 
 any grant in this country : In the 
 goods of Ewing, 6 P. D. 19 ; see 
 also the cases therein cited. 
 
 (h) Further provisions as to 
 resealing confirmations and addi- 
 tional confirmations or eiks are 
 contained in 39 & 40 Vict. c. 70, 
 ss. 41 — 45. These sections meet 
 the difficulties raised in such cases 
 as In the goods of Ryde, L. R. 
 2 P. & D. 86. The object of the 
 section cited in the text is to 
 render unnecessary a second 
 application for probate, but the 
 Scotch confirmation is not conclu- 
 sive evidence of the domicil, if that 
 question has been raised in the 
 English Court : Havvarden r. 
 Dunlop, 2 Sw. & Tr. 340. Where 
 the proper duty has been paid in 
 Scotland, no further duty is payable 
 on resealing : Booth's Trusts, 
 1 Giff. 46. By 22 Vict. c. 30, s. 1, 
 payments made in reliance on any 
 instrument sealed under this Act 
 are protected, notwithstanding any 
 defect afi'ecting the validity of the 
 confirmation.
 
 300 
 
 OfPvohaU 
 
 [Pt. I. Bk. IV. 
 
 The rights of 
 the representa- 
 tive constituted 
 here of a person 
 domiciled here 
 extend to ■pev- 
 sonal property 
 abroad : 
 
 but the grant 
 of probate here 
 does not extend 
 to it : 
 
 seal of tlie last-mentioned Court, and being duly stamped shall 
 be of the like force and effect, and have the same operation in 
 England as if it had been originally granted by the Court of 
 Probate in England " {i). 
 
 All personal property follows the person, and the rights 
 of a person constituted in England representative of a party 
 deceased, domiciled in England, are not limited to the 
 personal property in England, but extend to such property, 
 wherever locally situate (A). 
 
 It must not be understood, however, that where a testator 
 dies domiciled in England, leaving assets abroad, the grant 
 of probate here can extend to them. For the probate was 
 never granted except for goods which at the time of the 
 death were within the jurisdiction of the Ordinary who 
 made the grant (?) : Though if it should become necessary 
 
 (i) See Divenny v. Corcoran, 
 32 L. J. P. & M. 26. 
 
 {k) Spratt V. Harris, 4 Hagg. 405. 
 
 {I) Attorney-General v. Dimond 
 1 Cr. & J. 356. A Will disposing 
 only of property in a foreign 
 country is not entitled to proLate 
 in this country : In the goods of 
 Coode, L. E. 1 P. & D. 449. In 
 the goods of Tucker, 34 L. J. 
 P. & M. 29. In the case of In 
 the goods of Winter, 30 L. J. 
 P. & M. 56, probate was granted 
 by Sir Cresswell Cresswell of a 
 Will purjiorting to deal only with 
 property out of the jurisdiction. 
 The authority of this decision 
 may, however, be doubted. See 
 fost, p. 544. At all events Sir 
 James Hanuen in In the goods of 
 Hovvden, 43 L. J. P. & M. 27, 
 approved the decision in In the 
 goods of Coode and pointed out 
 that in the cases of In the goods of 
 Harris, L. R. 2 P. & D. 83 (Lord 
 Penzance), and In the goods of 
 De la Saussaye, L. R. 3 P. & D. 
 42 (Sir James Hanneu), where 
 
 proliate was granted of a foreign 
 Will puiportiug to deal only with 
 property out of the jurisdiction 
 together with an English Will 
 dealing with property in England, 
 the English Will by reference 
 incorporated the foreign Will. 
 In the case of In the goods of 
 Bolton, 12 P. D. 202, probate was 
 granted of a Belgian Will pur- 
 porting to deal only with property 
 in Belgium together with an 
 English Will dealing only with 
 property in England, although 
 there do not seem to have been any 
 words of reference or incorpora- 
 tion. The grant to the executor 
 appointed by the English Will 
 was made however by the consent 
 of the Belgian executor who had 
 renounced. As to when it is 
 unnecessary to treat the foreign 
 Will as incorporated, see In the 
 goods of Astor, 1 P. D. 150. lu 
 the goods of Smart, 9 P. D. 64. 
 Again, a testator died in England 
 possessed of property in England 
 and South Africa. He executed 
 
 1
 
 Ch. 
 
 II. § vl] Of the Wills of Foreigners, &c. 
 
 301 
 
 that the courts of the foreign country where the assets were 
 situate should grant probate or administration for the purpose 
 of giving a legal right to recover and deal with them, such 
 courts, by the comity of nations, would probably follow the 
 decision of the Court of Probate in this country, as being the 
 country of domicil (?»). 
 
 Again, if a Will be made here and proved in the Court of nor to Will 
 Probate here, the probate will not extend to property in the Mo*^'ert^7n°th 
 colonies {n) ; though, if the testator was domiciled in this colonies, &c. 
 
 two Wills, one disposing of his 
 English estate and the other of 
 his South African estate : each 
 purporting to be independent of 
 the other and intended to have no 
 o]5eration on the property disposed 
 of by the other. It was held that 
 probate might be granted of the 
 English Will without requiring 
 the South African Will to be 
 brought in, on an affidavit being 
 filed exhibiting an attested copy of 
 it and a statement being inserted 
 in the probate that such affidavit 
 had been filed. In the goods of 
 Callaway, 15 P. D. 147. See also 
 In the goods of De la Eue, 15 P. D. 
 185, where the same principle was 
 applied to a case in which a 
 testator had executed separate 
 Wills relating respectively to his 
 English and Swiss property. See 
 also In the goods of Seaman [1891], 
 P. 253. In the goods of Eraser, ih., 
 285. So where the deceased left a 
 Will expressly limited to her pro- 
 perty abroad, which was proved by 
 lier executors in the foreign Court, 
 but she died intestate as to her 
 property in this country, it was 
 held that administration of her 
 property in this country might be 
 granted to her sole next of kin. In 
 the goods of Mann [1891], P. 29.3. 
 (m) See Story's Contt. of L. 
 Ch. xiii. ss. 512, 513, 518. The 
 
 Courts of the country where the 
 deceased was domiciled will ad- 
 minister the property wherever 
 situate; but if, in the course of 
 the administration, it becomes 
 necessary to take legal proceedings 
 to reduce the estate into posses- 
 sion, the representative constituted 
 by the Court of the domicil will 
 have to clothe himself with a title 
 from the Court where the ^jroperty 
 is locally situate : by the comity 
 of nations, however, the foreign 
 Court will, as a matter of course, 
 grant probate ancillary to that 
 granted by the Courts of the 
 domicil. In all matters, except 
 that of procedure, the foreign 
 Courts have no jurisdiction, unless 
 the representatives themselves 
 accept the jurisdiction of such 
 foreign Court, to determine ques- 
 tions of construction or adminis- 
 tration, and then the foreign 
 Court will apply the lex domicilii. 
 Enohin v. Wylie, 10 H. L. Cases, 
 p. 1. In the goods of Cosnahan, 
 L. R. 1 P. & D. 183. In the 
 goods of Hill, L. R. 2 P. & D. 89. 
 In the goods of Weaver, 36 L. J. 
 P. & M. 41. 
 
 (n) Burn v. Cole, Ambl. 416. 
 Atkins V. Smith, 2 Atk. 63. So a 
 defendant who had been arrested 
 in Ireland, by writ of ne exeat 
 regno issued out of Chancery there
 
 302 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 An executor 
 luaj' sue here 
 in resjiect of 
 foreign assets 
 without a 
 foreign pro- 
 bate. 
 
 The law of the 
 place of domi- 
 cil regulates 
 the decision as 
 to the validity 
 of the AYill : 
 
 with respect to 
 the validity of 
 the Will of a 
 foreisner domi- 
 
 country, the Judge of Probate in the Plantations is bound by 
 the probate here, and ought to grant it to the same person (o). 
 
 But though the executor of a man who has died domiciled 
 in England be not able to sue in a foreign Court by virtue of 
 an English probate (any more than he can sue in an English 
 Court by virtue of a foreign probate), yet for the purpose o^ 
 suing in an English Court, a probate obtained in the proper 
 Court here extends to all the personal property of the 
 deceased wherever situate at the time of his death, whether 
 in Great Britain or the colonies, or in any country abroad {j)). 
 So an executor having clothed himself with an English 
 probate, might, without having obtained probate in Ireland 
 also, sue in the Courts here to recover a debt which was bona 
 notahilia in Ireland (q). 
 
 It is now a clearly established rule, that the law of the 
 country, in which the deceased was domiciled at the time 
 of the death, not only decides the course of distribution or 
 succession as to personalty (r), but also subject in the case of 
 British subjects to the exceptions hereafter mentioned, regu- 
 lates the decision as to what constitutes the last Will, without 
 regard to the place either of birth or death, or the situation 
 of the property at that time. 
 
 Accordingly, if the deceased was a foreigner, domiciled 
 abroad, and his Will be brought into the Court of Probate 
 
 for a debt due to an intestate, was 
 discharged, on the ground that 
 the plaintiff had not obtained 
 administration in that country : 
 Swift V. Swift, 1 Ball & Beat. 326. 
 See Stat. 23 Vict. c. 5, s. 1, by 
 which probate here is to extend to 
 India Government notes, &c. 
 
 (o) By Lord Mansfield, Ambl. 
 416. 
 
 (p) Whyte V. Rose, 3 Q. B. 493, 
 507. 
 
 (q) Whyte v. Rose, 3 Q. B. 493. 
 It would, however, be a gootl 
 defence to such an action that the 
 debt had been paid to a personal 
 
 representative of the deceased duly 
 constituted in Irehind : ibid. 510. 
 
 (r) Craigie v. Lewin, 3 Curt. 
 435. De Zichy Ferraris v. Lord 
 Hertford, 3 Curt. 468, 486. Bre- 
 mer V. Freeman, 10 Moo. P. C. 
 306. Enohin v. Wylie, 10 H. of 
 L. 1. Crispin v. Doglioni, 3 S\v. 
 
 6 Tr. 96, 99. Whicker v. Hume, 
 
 7 H. of L. ' 124. Miller v. James, 
 L. R. 3 P. & D. 4. See, however, 
 as to Wills made by British sub- 
 jects dying after August 6, 1861, 
 Stat. 24 & 25 Vict. c. 114, s. 3, 
 pod, p. 309, and see stat. 24 & 25 
 Vict. c. 121.
 
 Cli. II. § VI.] Of the Wills of Foreigners, &c. 303 
 
 here for the purpose of being admitted to probate, the Court, ciled abroad, 
 in deciding whether the instrument be a vaHd Will or not, be guided by 
 will be guided not by our own law, but by the law of the pt'c^^f ''^ *^" 
 country where the deceased was domiciled (s). Thus in a f^omicil: 
 case, where the testatrix was a married woman, a native of 
 Spain, domiciled there, and it appeared upon affidavits, that 
 by the law of Spain she had power to bequeath, as a feme sole, 
 the property which she brought her husband on her marriage, 
 probate was granted of the Will, made according to the law of 
 that country {t). 
 
 And it was established by the determination of the Dele- tlie same witk 
 
 <-f 7 T-> \ 1 1 1 • 1 respect to the 
 
 gates m Stanley v. Bernes (»), that the same rule, in2., that wills of British 
 the question of the validity of a Will of a testator domiciled 'I'leJnn'forrign 
 abroad ought to be determined in our Courts of Probate stites, who 
 
 _ died before 
 
 according to the law of the country where the testator died Aug. 6, 1861 : 
 domiciled, extends to the case of a British subject domi- 
 ciled in a foreign state, notwithstanding the Will disposes of 
 property in England (.x). In that case the Delegates, reversing 
 a sentence of the Prerogative Court, refused probate to two 
 codicils, disposing solely of money in the British Funds and 
 made by a British born subject, domiciled in the Portuguese 
 dominions, on the ground that the instruments were not 
 executed according to the law of Portugal. 
 
 And it should seem that if a British subject, domiciled in AVill by British 
 
 .,, . subject domi- 
 
 a foreign country, by his Will appomts an executor, but died abroad 
 makes a disposition of his property, which, though valid by En^'iisif law 
 the law of England, is invalid by the laws of that foreign l'"*" i"/aii<i '>>' 
 
 *^ _ "^ _ ° law of conntiy 
 
 country, the Court of Chancery is at liberty, notwithstanding of domicil : 
 probate may have been granted to the executor in this country, 
 to hold that the Will has no operation beyond the appointing 
 of the executor (y) ; and, consequently, that he is a trustee 
 
 (s) Curling v. Thornton, 2 Add. (u) 3 Hagg. 374. 
 
 21. The French lawyers, it should (.r) But see now stat. 24 & 25 
 
 seem, acknowledge the same prin- Vict. c. 114, post, p. 308. 
 
 ciple : see Collectanea Juridica, (y) Thornton v. Curling, 8 Sim. 
 
 vol. 1, pp. 333, 331. 2 Add. 22. 310. See also Campbells. Beaufoy, 
 
 {t) In the goods of Maraver, Johns. 320. On the same prin- 
 
 1 Hagg. 498. ciple it would seem that a Will of
 
 304 Of Probate. [Pt. i. Bk. iv. 
 
 for the next of kin, and must distribute the property exactly 
 as if the deceased had died intestate, 
 meaning of the When it is said that the law of the country of domicil 
 
 term "iAe laiv ... 
 
 of the country must regulate the succession, it is not always meant to 
 oj oiiuci . gpgak of the general law, but, in some instances, of the par- 
 ticular law which the country of domicil applies to the case 
 of foreigners dying domiciled there, and which would not be 
 applied to a natural born subject of that country. Thus 
 in Collier v. Rivaz (0), the testator, an English born subject, 
 died domiciled in Belgium, leaving a Will not executed 
 according to the forms required by the Belgian law : But 
 by that law, the succession in such a case is not to be 
 governed by the law of the country applicable to its natural 
 born subjects, but by the law of the testator's own country : 
 and it was held that the Will, being valid according to the 
 law of England, ought to be admitted to probate (a). So in 
 Maltass v. Maltass (h), it appeared that by the law of Turkey 
 no subject of that country can make a Will : By treaty 
 between Great Britain and the Ottoman empire an English 
 domiciled subject may make a Will (c) : The deceased, John 
 Maltass, was born at Smyrna of English parents, his father 
 having been long settled as a merchant there ; The deceased 
 was himself a member of a commercial firm at Smyrna and 
 died there, having been constantly resident there, except 
 that he passed his boyhood in England for the purposes of 
 education : And it was held by Dr Lushington (sitting for 
 Sir H. Jenner Fust) that a Will made by the deceased in 
 
 a British subject which must be vening the law of the testator's 
 
 held by an English Court to be domicil. Dicey on the Law of 
 
 duly executed by reason of 2i Domicil, p. 306. 
 
 & 26 Vict. c. 114 {pott, 308), (2) 2 Curt. 855. 
 
 though not in the form required (a) See the observations made 
 
 by the law of the place of the on this case by Lord Wensleydale 
 
 testator's domicil, may still be in Bremer v. Freeman, 10 Moo. 
 
 invalid, either because the testator P. C. 374. See also the observa- 
 
 is according to the law of his tions of Sir J. Hannen in Bloxam 
 
 domicil incapable of making a v. Favre, 8 P. D. 103. 
 
 Will, or because the Will is (b) 1 Robert. 67. 
 
 materially invalid or inoperative (r) See 3 Curt. 231. 
 as containing provisions contra-
 
 Ch. IL § VI.] Of the Wills of Foreigners, &c. 305 
 
 1834, and which was good according to the law of England 
 as it then stood, was entitled to probate : For if the testator 
 •was to be regarded as domiciled, in the legal sense, in 
 Turkey, and if the law of domicil did prevail, the law of 
 Turkey, in conformity with the Treaty, says, that in such 
 case the succession to the personal estate shall be governed 
 hj the British law ; if he was not domiciled in Turkey, but 
 in England, then the law of England prevailed, proinia 
 v'lgore. — But in either point of view, the Will, in order to be 
 valid, must have been made according to the testamentary 
 law of England : And accordingly. Sir H. Jenner Fust refused 
 to admit to probate a Will of the same party deceased, which 
 had been made after the year 1837, and had not conformed 
 to the Wills Act {d). 
 
 Again, if the testator was a British subject, and at the t'^e rule is the 
 
 .., ,. „, -r-..-! sanie with 
 
 tmie 01 his death domiciled m some other part of the British respect to the 
 dominions, out of England, the Court, upon application for gubiects domi- 
 probate, has felt itself bound to defer to the law of the place ?^'?^ ^'^ *^® 
 
 ■*■ British domi- 
 
 where the deceased was domiciled {e). nions out of 
 
 Upon this ground it has been the practice, upon produc- died before 
 
 tion of an exemplified copy of the probate granted by the proper ^^°' ^' ^^^^ ' 
 
 Court in the country where the deceased died domiciled, for Court hereto^ 
 
 the Prerogative Court here to follow the grant upon the appli- ^ran^o^f^th 
 
 cation of the executor, in decreeing its own probate (/). Court of 
 
 AVhen the Court is satisfied that the testator died CourtwQi 
 
 grant ancillary 
 (c?) Maltass v. Maltass, 3 Curt. attach to him an English or Anglo- 
 231. There is no such thing as Egyptian domicil. Abdul Messih 
 domicil arising from society and v. Farra, 13 A. C. 431, a2:)provino- 
 not from connection with a locality. Re Tootal's Trusts, 23 C. D. 532. 
 Therefore where the testator, a (e) But see now stat. 24 & 25 
 member of the Chaldean Catholic Vict. c. 114, s. 2, ^os<, 308. 
 community having a Turkish (/) ^nfe, p. 298. The doubt on 
 domicil of origin, fixed his perma- this point exjjressed by Sir J. 
 nent residence in Cairo, where he NichoU in Larpent v. Sindrv, 
 acquired the status of a protected 1 Hagg. 382, and In the goods of 
 British subject, it was held that as Read, 1 Hagg. 474, is now re- 
 Cairo was not a British possession moved. See Enohin v. Wylie, 
 governed by English law, the 10 H. L. Cas. 14. Sir J. P. Wilde 
 testator's permanent abode therein in the case of In the goods of Earl, 
 under British protection did not L. R. 1 P. & D. 450, after re- 
 W.E. — VOL. I. X
 
 306 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 letters of pro- (domiciled ill a foreign country, and that his "Will, con- 
 bate in cases of . , 
 Will of testator taming a general appointment of executors, has been duly 
 
 abmd : authenticated by those executors in the proper court in the 
 
 foreign country, it is the duty of the Court in this country 
 
 to clothe the foreign executors with ancillary letters of probate 
 
 to enable them to get possession of that part of the personal 
 
 estate which was locally situate in England {cf). In Laneu- 
 
 ville V. Anderson (It), it was held that where in the case 
 
 of a domiciled Frenchman, the French Court had decreed 
 
 that the time limited by the French law for the execution 
 
 of the executorship thereby created had passed, and that the 
 
 executor had no more right to intermeddle in the estate of 
 
 the testator, and that the parties beneficially interested w^ere 
 
 the only persons who had a right to interfere, the Court held 
 
 itself bound by such decree, and refused to grant probate 
 
 (with respect to personalty in England) to such an executor. 
 
 So, in Crispin v. Doglioni (i), Sir C. Cresswell held, that 
 
 viewing the cases of Larpent v. 
 Sindry, In the goods of Read, 
 In the goods of the Countess Da 
 Cunha, 1 Hagg. 237 ; In the goods 
 of H.E..H. the Duchess of Orleans, 
 1 Sw. & Tr. 253 ; Viesca r. 
 D'Aramburu, 2 Curt. 277 ; In the 
 goods of Stewart, 1 Curt. 904 ; 
 In the goods of Eogerson, 2 Curt. 
 656 ; and citing the observations 
 of Lord Westbury in Enohin v. 
 Wylie, ubi sup., says : " I think 
 that the Court acting on the 
 special powers contained in the 
 73rd section of the 20 & 21 Vict. 
 c. 77, ought" in all cases of Wills 
 of persons having a foreign 
 domicil, "to make a grant to the 
 person who has been clothed by 
 the Court of the country of 
 domicil with the power and duty 
 of administering the estate, no 
 matter who he is, or on what 
 ground he has been clothed with 
 that power." As to the practice of 
 
 the Court to grant probate of a 
 copy of the original Will when it is 
 impossible to obtain such original 
 Will, see In the goods of Lemme, 
 [1892], P. 89, ante, p. 298, 
 note (/). The grant will not 
 necessarily be a grant of probate, 
 if the person to whom the foreign 
 Court has made the grant is a 
 person not entitled to the grant as 
 executor by the law of England ; 
 in such a case the grant wiU be 
 of administration with the Will 
 annexed. In the goods of Eai'l, 
 L. R. 1 P. & D. 450 ; In the goods 
 of Cosnahan, L. R. 1 P. & D. 
 183 ; In the goods of Weaver, 
 36 L. J. P. & M. 41 ; In the goods 
 of Hill, L. R. 2 P. & D. 89 ; In 
 the goods of Dost Aly Khan, 
 6 P. D. 6. 
 
 (g) Enohin v. Wylie, 10 H. of 
 L. 14, by Lord Westbury. 
 
 (h) 2 Sw. & Tr. 24. 
 
 (i) 3 Sw. & Tr. 96.
 
 Cli. II. § VI.] Of the Wills of Foreujners, t&c. 307 
 
 the judgment of the Court of Domicil of the deceased is 
 
 binding on the Court of a foreign counti-y, 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 Domicil. 
 
 When the deceased has left a Will, valid by the law of his duty of Court 
 
 domicil, and probate, either original or ancillary, has been -"^ property^ 
 
 obtained here, the duty of the Court in administering the 7!?®'!^?!^^^^^*','^ 
 
 , , . . ° left Will valid 
 
 property, supposing a suit to be instituted for its administra- by law of domi- 
 
 .. ,. 11,11 f -I • ■^ .11^11 and probate 
 
 tion, is to ascertain who by the law ot domicil are entitled has been ob- 
 under the Will, and that being ascertained to distribute the En^kmi^ 
 property accordingly. The duty of administration has to be 
 discharged by the Courts of this country, though in the 
 performance of that duty they will be guided by the law of 
 the domicil (k). 
 
 The rule above laid down (l) applies, lastly, to the case of the Will of a per- 
 instance of a person not a native of this country, but domi- native, but 
 oiled here at the time of his death : in this case, the law of ^o'^'^'^^d here. 
 England is to regulate the decision as to the validity of a Will 
 of personal estate, or what are the rights under it (m). 
 
 The rules of law for ascertaining the domicil are con- Rules for ascer- 
 sidered in a subsequent part of this Work, conjointly with the cu"'"^ 
 
 (k) Enohin v. Wylie, 10 H. according to the law of the domicile, 
 
 of L. 19, by Lord Cranworth. It is the true construction of the 
 
 appears to have been laid down by Will, and what are the rights of 
 
 Lord Westbury that the Court of the parties claiming to be inte- 
 
 the domicile is the/orum concursits rested in the estate in cases as well 
 
 to which legatees under the Will of intestacy as of testacy. As to 
 
 of a testator, or the parties entitled raising the question of domicil, 
 
 to distribution of the estate, are see Duprez v. Veret, L. R. 1 P. & 
 
 required to resort. (See also Oris- D. 583. 
 pin V. Doglioni, 3 Sw. & Tr. 99, (I) Ante, p. 302. 
 
 by Sir C. Cresswell.) But unless (m) Price v. Dewhurst, 8 Sim. 
 
 the point in dispute has been 279. S. C. 4 Mylne & Cr. 76, 82. 
 
 already decided by the Court of Yates v. Thompson, 3 CI. & Fin. 
 
 Domicil, it is apprehended that 544. See 2^ost, Pt. iii. Bk. iii. 
 
 the Court of this country in which Ch. ii. § i. as to the construction 
 
 an administration suit is insti- of the Will of a testator domiciled 
 
 tuted must decide for itself what, abroad. 
 
 X 2
 
 808 Of Prolate. [Pt. i. Bk. iv. 
 
 rules of law as to the distribution of the effects of deceased 
 persons, who have died domiciled in a foreign country (n). 
 Will made It must be here observed, that where a Will is made 
 
 nuder a iiower 
 
 conformably to disposing of personal property situate in this country, under a 
 
 the terms of p ., , ^ •!_ • -\ ^ .i- t 
 
 the power but power 01 appointment, and it is duly executed m compliance 
 "m ^'^t^^.^'^i' w^tli ^^6 requisites of the power, it has been held that such a 
 of the place of Will ought to be admitted to probate in this country, not- 
 withstanding it be not properly executed according to the 
 forms prescribed by the testamentary law of the country in 
 which the testator was domiciled at the time of his death (o). 
 But a power to appoint "by a Will duly executed," is well 
 exercised by a Will good according to the law of the country 
 of the testator's domicil, though ill executed according to the 
 law of England (_/?). The above rules as to the validity of 
 Wills in point of form were rendered to a great extent in- 
 applicable to Wills made by British subjects dying after 
 Gth August, 1861, by the statute 24 .^^ 25 Vict. c. 114. 
 As to "Wills By the first section of that Act, " every Will and other 
 
 subjects dying testamentary instrument {q) made out of the United Kingdom 
 after Aug. 6, |^y ^ British Subject (whatever may be the domicile of such 
 
 Stat. 24 & 25 person at the time of making the same, or at the time of his 
 
 Vict. c. 114. ^ 
 
 Wills made by ^^^^ p^^^^^ p^ ^^^^ ■gj,_ ^^^^ ^^^ j_ 201, which was subsequent to 
 
 S V. Tatnall v. Haukey {ubi sup.), and, 
 
 {()) Tatnall v. Hankey, 2 Moo. as he thought, inconsistent with 
 
 P. C. 342. The opinion to the the note to that case, the authority 
 
 contrary exj)ressed by Sir C. of which note he questioned. 
 
 Cresswell in Crookenden v. Fuller, ( 2^) D'Huart v. Harkness, 34 
 
 1 Sw. & Tr. 441, 454, was declared L. J. Ch. 311. In the case, how- 
 
 by that judge to be incorrect: ever, of a Will wliich is only valid 
 
 see In the goods of Alexander, by reason of 24 & 25 Vict. c. 114, 
 
 29 L. J. P. M. & A. 93. But Lord ss, 9 and 10, of the Wills Act 
 
 Penzance, although he followed must be complied with : Ee Kir- 
 
 In the goods of Alexander in the wan's Trust, 25 C. D. 373. 
 
 case of In the goods of Hally- (q) In determining the question 
 
 burton, L. E. 1 P. & D. 90, ex- what papers are testamentary 
 
 pressed a strong opinion that under the provisions of this statute 
 
 Crookenden v. Fuller expressed a the Court will have regard to the 
 
 truer view of the law and was law of one country only and v ill 
 
 more in accordance with thejudg- not mix up the legal precepts of 
 
 ment of the Privy Council in different countries : Pecliell v. 
 
 Barnes v. Vincent, 5 Moo. P. C. HQderley, L. R. 1 P. & D. 670.
 
 CIi. 11. § VI.] Oftlie Wills of Foreigners, &c. 309 
 
 or lier death), shall as regards personal estate, be held to be British sub- 
 well executed for the purpose of being admitted in England kingdom to be^ 
 and Ireland to probate, and in Scotland to confirmation, if ^^^njitted if 
 
 •■■ ' made according 
 
 the same be made according to the forms required either by to the hm of 
 
 ,,,„,, , T 111 t'^*5 pkce where 
 
 tne law oi tne place where the same was made, or by the law made, or where 
 of the place where such person was domiciled when the same domiciled or 
 was made, or by the laws then in force in that part of her ^:]'^ ^''^ '^°™i- 
 
 cile or origin. 
 
 Majesty's dominions where he had his domicile of origin (r). 
 
 Sect. 2. — "Every Will and other testamentary instrument S. 2. Wills 
 
 made within the United Kingdom by any British subject ™ibjects i "this 
 
 (whatever may be the domicile of such person at the time ^^^sj^lo™ *« ^e 
 
 '' ^ admitted if 
 
 of making the same, or at the time of his or her death), made accord- 
 shall, as regards personal estate, be held to be well executed, law. 
 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 " (s). 
 
 Sect. 3. — "No Will or other testamentary instrument shall S. 3. Change 
 be held to be revoked or to have become invalid, nor shall the to invalidate"" 
 construction thereof be altered by reason of any subsequent ^^^'" 
 change of domicile of the person making the same " (t). 
 
 (r) As to the application of this 10 of the Wills Act, that no ap- 
 
 section to a Will executed in pointment made by Will in the 
 
 France by a naturalised English- exercise of a power shall be valid 
 
 man, see In the goods of Lacroix, unless the same be executed in 
 
 2 P. D. 94. A Will, however, of the manner therein provided, i.e., 
 
 a foreigner executed abroad accord- in the presence of, and attested by, 
 
 ing to the formalities required by two witnesses : i?e Kirwan's Trust, 
 
 the English law is invalid, not- 25 Ch. D. 373. 
 
 withstanding the provisions of (s) A naturalised British subject 
 
 this statute, and of the Naturalisa- whilst domiciled in England, 
 
 tion Act, 1870, that property may made a Will according to the 
 
 be disposed of by an alien in the forms required by the law of Eng- 
 
 eame manner in all respects as by land. At the time of his death 
 
 a natural born British subject ; In he was domiciled in Italy. His 
 
 the goods of Von Buseck, 6 P. D. Will was admitted to probate 
 
 211. Bloxam v. Favre, 8 P. D. under this section : In the goods 
 
 101. 9 P. D. 1.30. This statute of Gaily, 1 P. D. 438. 
 
 does not touch or interfere with (t) A domiciled Scotchman made 
 
 the provisions of sections 8 and a Will and afterwards married in
 
 310 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 S. 4. Xotbing 
 in the Act to 
 invalidate 
 Wills otherwise 
 made. 
 
 S. f). Extent 
 of Act. 
 
 Sect. 4. — " Nothing in this Act contained shall invalidate 
 any "Will or other testamentary instrument, as regards 
 personal estate, which Avould have been valid if this Act had 
 not been joassed, 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." 
 
 Sect. 5. — "This Act shall only extend to Wills and other 
 testamentary instruments made by persons who die after the 
 passing of this Act " (Aug. 6, 1861). 
 
 Costs in the 
 Probate Divi- 
 sion : 
 
 now governed 
 by R. S. C, 
 1883, Ord. 
 LXV., r. 1. 
 
 SECTION VII. 
 
 Practice of the Court in certain other particulars as to 
 granting Probate. 
 
 Costs in the Probate Division are now governed, as in the 
 other Divisions of the High Court, by the Judicature Acts and 
 the Rules of the Supreme Court made thereunder, but, in- 
 asmuch as by those Acts and Piules for the most part, except 
 in cases where an action or issue is tried by jury, costs are in 
 the discretion of the Court, the result is that the rules as to 
 costs, which formerly obtained in the Court of Probate, are 
 still observed in the Probate Division, and that portion of 
 this Treatise which deals with such rules is therefore pre- 
 served, subject to such modifications as may have been in- 
 troduced by recent decisions. 
 
 By the Piules of the Supreme Court of Judicature by which 
 the question of costs in the Probate Division of the High 
 Court of Justice is now governed, it is enacted [Ord. LXV. 
 r. 1] , that " Subject to provisions of the Acts and these 
 rules the costs of, and incident to, all proceedings in the High 
 Court shall be in the discretion of the Court or Judge : but 
 
 Scotland. He sub.sequently ac- 
 quired an English domicil, which, 
 he retained till his death. It was 
 held that as the Will was valid as 
 long as he remained in Scotland, 
 
 it was not revoked by his subse- 
 quent change of domicil, and was 
 entitled to probate in England : 
 In the goods of Reid, L. R. 1 P. & 
 D. 74.
 
 Ch. II. § VII.] Practice of the Court. 311 
 
 nothing herein contained shall deprive an executor, adminis- 
 trator, trustee, or mortgagee, who has not unreasonably 
 instituted, or carried on, or resisted any proceeding, of any 
 right to costs out of a particular estate or fund to which he 
 would be entitled according to the rules hitherto acted upon 
 in the Chancery Division, provided that where any action or 
 issue is tried by a jury, the costs shall follow the event, unless 
 the judge by whom such action, cause, matter, or issue is 
 tried, or the Court, shall, for good cause, otherwise order." 
 
 The question of costs was in the discretion of the Judge 
 under the practice both of the Court of Probate and of the 
 Prerogative Court, its predecessor. 
 
 It was only under special circumstances that the Ecclesias- In wtat case 
 
 pi costs decreed 
 tical Court directed costs to be paid out oi the estate oi the out of the 
 
 deceased {u). It did not follow that a party was entitled to ^6^^°^.*^® 
 
 his costs out of the estate, because there was "justa causa 
 
 litigandi " (x) : but the principle which guided the Court in 
 
 decreeing such costs was, that the party was led into the 
 
 contest by the state in wh'ch the deceased left his papers (y), 
 
 or that the validity of the Will has been contested on a 
 
 doubtful point of law {2). 
 
 (m) Dean v. Russel, 3 Pliillim. pense of the estate. But the same 
 
 334, The Court has still no juris- judge refused to allow the next of 
 
 <liction to order costs to be paid kin their costs out of the estate, 
 
 out of the real estate. Young v. when they had chosen to raise a 
 
 Dendy, L. R. 1 P. & D. 344. question of domicile, which was 
 
 Davies v. Reynolds, L. R. 3 P. & D. likely to put the executors to 
 
 90. Except, it seems, by consent great expense : Onslow v. Cannon, 
 
 of the parties interested, in cases 2 Sw. & Tr. 136. See also Seaton 
 
 where the personal estate is in- v. Sturch, 29 L. J., P. & M. 195. 
 sufficient : Smith v. Hopkinson, (y) Hillam v. Walker, 1 Hagg. 
 
 4 P. D. 84. 75. 
 
 (x) Barwick v. Mullings, 2 (z) Robins v. Dolphin, 1 Sw. & 
 Hagg. 234. In Nicholls v. Binns, Tr. 518. And the general pro- 
 1 Sw. & Tr. 239, 241, Sir C. Cress- position, that where a party en- 
 well said that by the practice of the titled in distribution simply calls 
 Ecclesiastical Courts, where there for proof of a Will, and merely 
 was a fair case for inquiry, the next cross-examines the witnesses, with- 
 of kin might call on the executors out any misconduct in the suit, 
 to prove the Will in solemn form, he is entitled to have his costs out 
 and (jcneralhj sjoealcivg, at the ex- of the estate, is fully supported by
 
 812 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 Cases in 
 ■which executor 
 propounding a 
 Will will be 
 condemned in 
 costs. 
 
 Two rules were laid do-n-n by Sir J. P. Wilde for the 
 guidance of the Court of Probate {zz) : — First, if the cause of 
 litigation takes its origin in the fault of the testator (a), or 
 those interested in the residue (b), the costs may be properly 
 paid out of the estate ; secondly, if there be a sufficient and 
 probable ground, looking to the knowledge and means of 
 knowledge of the opposing party, to question either the 
 execution of the Will or the capacity of the testator (c), or to- 
 put forward a charge of undue influence or fraud, the losing 
 party may properly be relieved from the costs of his success- 
 ful opponent (d). 
 
 Although, generally speaking, an executor propounding a 
 Will will be entitled to his costs, yet sometimes he will be 
 condemned in costs, as where without explanation he con- 
 sented to a verdict against him on the morning of the 
 trial (c), or knowing that the Will had not been well exe- 
 
 tlie authorities : Prinsep r. Dyce 
 Sombre, 10 Moo. P. C. 232. But 
 it is otherwise where the proceed- 
 ings were not taken simjalyfor the 
 purpose of getting the opinion of 
 the Court on the Will, hut were 
 ancillary to another suit pending 
 in respect of the real estate : Swin- 
 fen V. Swinfen, 1 Sw. & Tr. 283. 
 For instances where the unsuccess- 
 ful party has not been condemned 
 in costs, see Ferrey r. King, 3 Sw. 
 & Tr. 51. Biamley v. Braniley, 
 ihid. 430. Tippett r. Tippett, L. 
 R. 1 P. & D. 54. See further as 
 to costs, Clears v. Cleare, 1 L. R. 
 P. & D. 655. 
 
 (zz) Mitchell c. Card, 3 Sw. & 
 Tr. 275. 
 
 (rt) See Accord. : Boughton r. 
 Knight, L. E. 3 P. & D. 64. 
 Charter v. Charter, L. E. 7 H. L. 
 364. Jenner v. Flinch, 5 P. D. 
 106. 
 
 (6) Williams v. Henery, 3 Sw. 
 & Tr. 471. 
 
 (c) Frere v. Peacock, 1 Eoh. 456. 
 
 Waring r. Waring, 5 Not, of Cas. 
 324. 
 
 (fZ) See Accord. Davies v. Gre- 
 gory, L. E. 3 P. & D. 28. Orton 
 V. Smith, Rid. 23. See further 
 Nash r. Yelloly, 3 Sw. & Tr. 59,, 
 where a plaintiff who was the 
 executor, was condemned in costs^ 
 the Will having been refused pro- 
 bate on the ground of undue in- 
 fluence. But in cases where 
 neither the testator by his own 
 conduct, nor the execiitors or per- 
 sons interested under the Will by 
 their conduct, have brought about 
 the litigation as to its validity, but 
 the opponents of the Will, after 
 due enquirj- into the facts, enter- 
 tained a bona fide belief in the exist- 
 ence of a state of things which, if 
 it did exist, would justify litiga- 
 tion and the opposition is unsuc- 
 cessful, each party must pay bis- 
 own costs : Davies v. Gregory^ 
 [uhi supra), ''^tt^-v ^Jr^[/(j^j 'P , 
 
 (e) Richards r. Humphreys, 2& 
 L. J., P. & M. 137.
 
 Cli. II. § VII.] Practice of the Court. 313 
 
 cuted (/), or where there is an inofficious instrument pro- 
 pounded by a person materially benefited {g). 
 
 The mere fact that a person who has improperly propounded 
 a testamentary paper is a nude executor, is no ground for re- 
 lieving him from his liability to condemnation in costs (/i). 
 
 A legatee, performing the duty of an executor in proving Legatee proving 
 the Will or codicil, is entitled to his costs out of the estate (t). costs out of 
 But the rule as to a legatee having his costs out of the estate *^^ estate. 
 on establishing a codicil, is not so general as in the case of a 
 Will (A;) : And if they are occasioned by his own delay in pro- 
 ducing the paper, he must pay his own costs (i). 
 
 Where an executrix through her negligence lost a Will, 
 and proved a draft of it, she was ordered to pay the costs of 
 the defendants, and was allowed out of the estate such costs 
 only as she would have been entitled to if she had proved the 
 original Will in solemn form (il). 
 
 Where a party propounding a Will became a bankrupt, the Security for 
 Court directed him to find security for costs {m). 
 
 The rule of the Common Law Courts as to the occasions 
 on which security for costs should be given, was adopted by 
 the Court of Probate, e.g., security for costs was required of a 
 plaintifi" to a suit when resident without the jurisdiction of 
 
 (/) Clarkson v. "Waterhouse, 29 sarum: Bremer v. Freeman, Dea. 
 
 L. J., P. & M. 136. & Sw. 258, See also Bewsher v. 
 
 (g) Dodge v. Meech, 1 Hagg. Williams, 3 Sw. & Tr. 62. So 
 
 612. a next of kin who had suc- 
 
 (/i) Rennie v. Massie, L. E. 1 P. cessfully opposed a Will pro- 
 
 & D. 118. pounded by the widow of the 
 
 (i) Williams v. Goude, 1 Hagg. deceased as sole executrix named 
 
 610. Sutton V. Drax, 2 Phill. 323. therein, the widow not being con- 
 
 And just as an executor who demned in costs, was held to be 
 
 proves a Will is entitled to take entitled to costs out of the estate : 
 
 the costs, which he has incurred, Critchell v. Critchell, 3 Sw. & Ti*. 
 
 out of tlie estate without any 41. 
 
 order of the Court, so a legatee, (k) Headington v. Holloway, 3 
 
 performing the duty of an execu- Hagg. 280, 283. 
 
 tor, will be entitled to an order (l) Ibid. 
 
 that his extra costs shall be {II) Burls v. Burls, L. R. 1 P. & 
 
 paid out of the estate. See Wil- D. 472. 
 
 kinson v. Corfield, 6 P. D. 27. (m) Goldie r. Murray, 2 Curt. 
 
 The order will be nomine expen- 797.
 
 314 
 
 Of Prolate, 
 
 [Pt. I. Bk. IV. 
 
 E. S. C. 1883, 
 Ord. LXV., 
 r. 6. 
 
 Liability of 
 married women 
 to give security 
 for costs. 
 
 Costs in case of 
 a party 
 opposing Will 
 after giving 
 notice under 
 R. S. C, 
 Ord. XXL, 
 r. 18. 
 
 Costs of inter- 
 veners. 
 
 Costs of party 
 calling on exe- 
 cutor to jjrove 
 a Will. 
 
 the Court, but was not required of a defendant in a similar 
 position : llohson v. Ilohson, 3 Sw. & Tr. 568. It should be 
 observed, that on the question as to the immunity of the 
 defendant from giving security for costs, the substantial, and 
 not only the nominal, position of defendant and plaintiff 
 respectively in the suit should be considered, as in certain 
 cases, in the Court of Probate, the nominal position of plaintiff 
 or defendant depends on the mode in which the cause com- 
 menced : Rohson v. Rohson, iihi sup. 
 
 This question of giving security for costs in the Probate 
 Division remains governed by the old Common Law rules. 
 The amount of the security to be given is in the discretion of 
 the Court. 
 
 Married women suing as plaintiffs without their husband's 
 being joined are not since the Married Women's Property 
 Act, 1882, liable to give security for costs (n). 
 
 As to the position of a party opposing a Will, and giving 
 notice under Pt. S. C. Order XXI., rule 18, with regard to 
 his liability to pay costs under the practice of the Prerogative 
 Court, the Court of Probate, and the Probate Division of the 
 High Court, respectively, see ajife, p. 281. 
 
 There is no definite rule as to the payment of the costs by 
 or to interveners. Each particular case depends on its own 
 circumstances (o). 
 
 By the practice of the Prerogative Court, as it has been 
 already pointed out (pp. 280, 281), the next of kin, a creditor 
 who had obtained a grant of administration, or an executor 
 under a former Will, had a right to call upon the executor to 
 prove the Will in solemn form, without being liable for 
 costs, provided that they did not do so vexatiously. If they 
 
 (}i.) ThrelfaU v. Wilson, 8 P. D, 
 
 18. 
 
 (o) For an instance in which 
 the interveners have been allowed 
 costs out of the estate, see Cross v. 
 Cross, 3 Sw. & Tr. 300, but see 
 contra. Colvin v. Fraser, 2 Hagg. 
 368. Shaw v. Marshall, 1 Sw. & 
 Tr. 129. An heir at law who in- 
 
 tervenes in a suit, not being cited, 
 and opposes a Will, is entitled to 
 costs, if the Will is pronounced 
 against : Rayson v. Parton, L. R. 
 2 P. & D. 38. And where he is 
 made a party by order of the 
 Court, even though he is ultimately 
 unsuccessful : Singleton v. Tom- 
 linson, 3 App. Cases, 404.
 
 Cli. II. § VII.] Practice of the Court. 315 
 
 exercised this right vexatiously, or pleaded, or attempted to 
 set up, a case of fraud, which they were not justified by the 
 evidence in doing, they were liable to be ordered to pay 
 costs. This right, however, does not extend to a residuary 
 legatee under a former Will. 
 
 If they put an executor on proof after he had taken probate 
 in common form, they did so at the risk of being condemned 
 in costs. 
 
 In a testamentary suit, condemnation in costs includes all What costs are 
 the charges of an administrator pending suit (p). mc u e . 
 
 The Court, in a case where a defendant had destroyed the Liability of 
 
 Will the subject of proof, held that it had power to condemn but who has 
 
 the party who had been cited, but had not appeared, in the °°* appeared 
 ^ -^ ^ -^ ' to pay costs. 
 
 costs of the suit {q), so too a person who has not been cited, 
 nor made himself a party to the suit, but who has entered a 
 caveat, may be condemned in costs (r). 
 
 It is a necessary consequence of some of those rules of the Probate of a 
 Court of Probate, which there has already been occasion to in pa™Tranted 
 notice, that a Will maybe in part admitted to probate, and in and m part 
 part may be refused. Thus, if the Court shall be satisfied 
 that a particular clause has been inserted in a Will, by fraud, 
 without the knowledge of the testator in his lifetime (s), or 
 by forgery after his death {t), or, it should seem, if he has 
 been induced by fraud to make it a part of his Will {u), 
 probate will be granted of the instrument with the reservation 
 of that clause. Again, where a clause is introduced in a 
 testamentary paper, i^r incuriam, and the deceased executes 
 the paper, not having given any instructions for such clause, 
 and it not having been read over to him, probate will be 
 granted of the remainder of the paper, omitting such clause (x). 
 
 ( p) Fisher v. Fisher, 4 P. D. 231. (u) Allen v. McPherson, 1 H. of 
 
 Iq) King v. Gillard, L. R. 1 P. L. 191. 
 & D. 539. (x-) In the goods of Duane, 2 Sw. 
 
 (r) Ratcliffe v. Barnes, 31 L. J., & Tr. 590. In the goods of Oswald, 
 
 P. & M. Gl. L. R., 3 P. & D. 162. See Morrell 
 
 (s) Barton v. Robins, 3 Phill. v. Morrell, 7 P. D. 68. The re- -^ O^du^^ 
 
 455, note (/>). quirements of the Court before it 
 
 (<) Plume V. Beale, 1 P. Wms. will exclude from proljate part of 
 
 388. a Will, and the onus probandi are
 
 316 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 but the Court 
 cannot ex- 
 punge. 
 
 So, since i^art of a Will may be established, and jjart held not 
 entitled to probate, if actual incapacity be shown at the time 
 of the execution of the latter part, the Will shall, in such case, 
 be engrossed without it, and so annexed to the probate {y) . 
 But the Court cannot, even by consent, order a passage of the 
 Will to be expunged, which the testator, being of sound 
 mind, intended to form part of it (z). But though the Court 
 
 mucli discussed in Alter v. Atkin- 
 son, L. R. 1 P. & D. 670. Guard- 
 house V. Blackburn, L. R. 1 P. & 
 D. 109, Fulton v. Andrew, L. E. 
 7 H. L. 448. In the goods of 
 Bushell, 13 P. D. 7. In the goods 
 of Hnddleston, 63 L. T. (N. S.) 
 255. In the goods of Boehm 
 [1891], P. 247. Sir J. Hannen 
 in Morrell v. Morrell, ubi supra, 
 ordered the word " 40 " to be 
 struck out of the four places in 
 which it occurred in the Will, and 
 in his judgment said, " In the case 
 of Harter v. Harter, L. R. 3 P. 
 & D. 11, I held that the lan- 
 guage of a Will could not be 
 changed where the testator had 
 seen the words and adopted them, 
 but in Fulton v. Andrew, where a 
 residuary bequest was introduced 
 into the Will without the know- 
 ledge of the testator, the clause 
 containing the bequest was re- 
 jected. If so, the principle may 
 be applied to a single word, and, 
 therefore, on the ruling of the 
 House of Lords in Fulton v. An- 
 drew (L. R. 7 H. L. 448) I hold 
 that the words may be struck out 
 which have been introduced with- 
 out the authority of the testator." 
 But where the rejection of part 
 alters the sense of the remainder, 
 qucere, whether there is a valid 
 Will within the meaning of 1 Vict, 
 c. 26, s. 9. Rhodes v. Rhodes, 7 
 A. C. 192. 
 
 (y) Billinghurst v. Vickers, 1 
 Phill. 187. Wood V. Wood, ibid. 
 357. Ante, p. 36. 
 
 (z) So where a legatee, at the 
 request of the testator, signed her 
 name to the Will, and the testator 
 subsequently duly executed the 
 Will in the presence of two wit- 
 nesses, who attested it, a motion 
 to strike out the name of the lega- 
 tee was rejected : In the goods of 
 Mitchell, 2 Curt. 916. In the 
 goods of Forest, 2 Sw. & Tr. 334. 
 In the goods of Raine, 34 L. J., 
 P. & M. 125. In the goods of 
 Smith, 3 Sw. & Tr. 589. In the 
 goods of Sharman, 1 L. R. P. & D. 
 661. Where a Will had been 
 executed in the presence of two 
 witnesses, and in addition to their 
 signatures the signature of a third 
 person, who was also residuary 
 legatee, appeared at the foot of the 
 W^ill, the Court received evidence 
 to explain why such signature was 
 written, and, being satisfied that it 
 was not written with the intention 
 of attesting the signature of the 
 testator, ordered it to be omitted 
 in the probate. This decision 
 does not seem quite consistent 
 with the earlier cases, and parti- 
 cularly not with In the goods of 
 Forest, ubi supra, in which case 
 Sir C. Cresswell pointed out that 
 if the signature were omitted in 
 the probate the next of kin would 
 be unable in a Court of Com^truc-
 
 Oh. II. § VII.] Practice of the Court. 317 
 
 cannot expunge any words from the original Will, it has, it 
 seems, allowed offensive passages, such as scurrilous imputa- 
 tions on the character of another man, to he excluded from 
 the prohate and copy kept in the Eegistry (a). 
 
 In a case where the executor and universal legatee had Probate 
 heen, by a mistake of the solicitor who drew the Will, de- fight name to 
 
 scribed therein by a wrong name: (viz. "my nephew Barton -'^^ s^^'^^to'^ 
 
 •^ ° ' ^ J r wrongly named 
 
 Nicholas Skuttleivorth" instead of "Barton Nicholas Bayley ") ii the Will : 
 probate was granted to him in his right name, the testator's 
 next of kin consenting {h). But the Court cannot, even by but the Will 
 consent, alter the Will by substituting one name for another, altered ■ ° 
 however cogent the evidence of mistake may be (c). 
 
 Nor has the Court, under any circumstances, power to nor cancelled 
 make any alteration in papers of which probate has been 
 granted. Therefore, where the Vice- Chancellor of England 
 had ordered, that two promissory notes, which, with certain 
 testamentary indorsements on them, had been admitted to 
 probate, should be paid in a certain way, and that having 
 been done, he further ordered that the notes should be 
 cancelled. Sir H. Jenner Fust refused to direct that this 
 order should be carried into effect {d). 
 
 It is laid down by Smnburne, that if a testament be made Probate of a 
 in writing, and afterwards lost by some casualty, if there be 
 two unexceptionable witnesses who did see and read the 
 testament written, and do remember the contents thereof, 
 
 tion to raise the question as to that case were in the Will of a 
 
 whether the signature was that of husband reflecting severely on the 
 
 a subscribing witness so that per- conduct of his wife. In the goods 
 
 sons signing would forfeit aU in- of Wartnaby, 1 Eobert. 423. Marsh 
 
 terest under the Will, whereas if v. Marsh, 1 Sw. & Tr. 528. In 
 
 the signature were retained it the goods of Honywood, L. R., 2 P. 
 
 might still be shown that the & D. 251. 
 
 signature was not that of a sub- (6) In thegoodsof Shuttleworth, 
 
 scribing witness. The case of In 1 Curt. 911. 
 
 the goods of Sharman {uhi sup.) (c) In the goods of Collins, 7 
 
 seems to have been followed in the Notes of Cas. 278. In the goods 
 
 case of In the goods of Smith, 15 of Boehm [1891], P. 247. 
 
 P- D- 2. (d) In the goods of Hughes, 2 
 
 (a) Curtis v. Curtis, 33. The Robert. 341. 
 words sought to be expunged in
 
 318 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 or of a Will 
 canfelled or 
 destroyed by 
 fraud, or be- 
 come illegible. 
 
 these two witnesses, so deposing to tlie tenor of the "Will, 
 are sufficient for the proof thereof in form of law (e). In 
 such cases the Court will grant probate of the Will " as 
 contained in the depositions of the witnesses" (/) : And, at 
 this day, it is quite clear that the contents or substance of a 
 testamentary instrument may he thus established, though the 
 instrument itself cannot be produced, upon satisfactory proof 
 being given that the instrument was duly made by the testa- 
 tor, and was not revoked by him {g). Thus, where the testator 
 had delivered his "Will to A. to keep for him, and four years 
 afterwards died, when the Will was found gnawn to pieces 
 by rats, and in part illegible ; on proof of the substance of 
 the Will, by the joining of the pieces, and the memory of 
 witnesses, probate was granted {h). So if a Will, duly 
 
 (e) Swinb. Pt. 6, s. 14, pi. 4. 
 
 (/) Trevelyan v. Trevelyan, 1 
 Phillim. 154. Where a Will has 
 been lost and evidence of its con- 
 tents is supplied by the production 
 of a draft and of the parol testi- 
 mony of persons who had read the 
 Will the parol evidence must be 
 placed side by side with the draft, 
 and out of them the Court will 
 extract the contents of the Will to 
 be proved : Burls v. Burls, L. E. 
 1 P. & D. 472. 
 
 {g) The contents of a lost Will, 
 like those of any other lost in- 
 strument, may be proved by 
 secondary evidence. Declarations 
 written or oral made by a tes- 
 tator both lefore and after the 
 execution of his Will are, in the 
 event of its loss, admissible as 
 secondary evidence of its contents : 
 Sugden v. Lord St. Leonards, 1 P. 
 D. 154. Gould V. Lakes, 6 P. D. 1. 
 
 In the case of Sugden v. Lord 
 St. Leonards, Mellish, L.J., dis- 
 sented from the judgment of the 
 other members of the Court as to 
 the admissiV)ilitv in evidence of 
 
 declarations made by the testator 
 after the execution of the Will, 
 and this same doubt was after- 
 wards expressed in the House of 
 Lords in the case of Woodward v. 
 Goulstone, 11 App. Cos., in which 
 the case of Sugden v. Lord St. 
 Leonards was considered. 
 
 The contents of a lost Will may 
 be proved by the evidence of a 
 single witness though interested, 
 whose veracity and competency 
 are unimpeached : Sugden v. Lord 
 St. Leonards, rid. sup. 
 
 See also the late case of Harris 
 V. Knight, 15 P. D. 170, where the 
 existence and contents of a lost 
 Will and the handwriting of testa- 
 tor and attesting witnesses who had 
 died sometime after the testator 
 were proved by parol evidence. 
 The circumstances of this case 
 were very peculiar, and Cotton, 
 L.J., dissented from the judgment 
 of the rest of the Court. 
 
 (h) Toller, 70. As a general 
 rule, the Court requires the draft 
 or copy of a lost or destroj-ed Will 
 to be propounded before admitting
 
 Cli. II. § VII.] Practice of the Court. 319 
 
 executed, is destroyed in the lifetime of the testator, without 
 his knowledge, it may he pronounced for, upon satisfactory 
 proof heing given of its having heen so destroyed, and also of 
 its contents (i). And where, after the death of the testator, 
 his Will and codicil were wrongfully torn by his eldest son, 
 the Court, having by means of some pieces which were saved, 
 and by oral evidence, arrived at the substance of the instru- 
 ments, pronounced for them {k). But when allegations of 
 this sort are made, they must be supported by the clearest 
 and most stringent evidence (^). In accordance with these Parol evidence 
 decisions, it was held by the Court of Queen's Bench, in te. its of a Will. 
 Brown v. Brown (ni), that parol evidence was sufficient to 
 prove the contents of a Will and thereby establish it, so as to 
 revoke a Will of earlier date. And Lord Campbell laid it 
 down generally that parol evidence of the contents of a lost 
 instrument may be received as much when it is a Will as if it 
 were any other. And this case was acted on on several occasions 
 by Sir C. Cresswell (n), and recently by the Court of Appeal 
 in Sugden v. Lord St. Leonards (o). But in Wharram v. 
 Wharram (p), Sir J. P. Wilde appeared to doubt the sound- 
 ness of the doctrine in Broivn v. Brown, by reason of the 
 
 it to probate ; but see In the goods house, 3 Sw. & Tr. 567. 
 
 of Barber, L. R, 1 P. & D. 267. {m) 8 E. & B. 876. 
 
 (i) Trevelyan v. Trevelyan, I (») In the goods of Gardner, I 
 
 Phillim. 149 : see also Parker v. Sw. & Tr. 109, where the Will had 
 
 Hickmoott, 1 Hagg. 211, as to been left, during the mutiny, in 
 
 granting probate, in its original India, and probate was granted of 
 
 state, of a Will altered without the the Will as contained in the affi- 
 
 testator's concurrence. See also In davits. See also In the goods of 
 
 the goods of Cooke, 3 Curt. 737. Brown, 1 Sw. & Tr. 32, where the 
 
 ijc) Foster v. Foster, 1 Add. 462. facts were the same as those in 
 
 Knight V. Cook, 1 Cas. temp. Lee, Brown v. Brown. Wood v. Wood, 
 
 413. In the goods of Leigh [1892], L. R., 1 P. & D. 309. 
 
 P. 82. See also Martin v. Laking, 1 (o) 1 P. D. 154. See ante, p. 
 
 Hagg. 244, where the widow, after 318. See also Woodward v. Gould- 
 
 the testator's death, caused his Will stone, 11 App. Cas. 469. 
 
 to be destroyed, and probate of the (i^) 3 Sw. & Tr. 301, which case 
 
 draft of such Will was granted. now seems to be overruled. See 
 
 {I) Huble V. Clark, 1 Hagg. 115. per Jessel, M.R., in Sugden v. 
 
 Wharram v. Wharram, 3 Sw. & Lord St. Leonards, 1 P. D. 154, 
 
 Tr, 301, 307. Moore v. White- at p. 239.
 
 320 
 
 Of Probate. 
 
 [Pt. I. Bk. IV. 
 
 Probate of Will 
 cancelled by 
 testator while 
 non comj)OS. 
 
 Double probate 
 where there 
 are several 
 executors. 
 
 "What is 
 "double pro- 
 bate." 
 
 provision in the 10th section of the Wills Act that '* no "Will 
 shall be valid," "unless it be in writing, &c." And the 
 learned judge seemed to think that the current of authorities 
 had somewhat hastily flowed on past the period of the Wills 
 Act, without any notice of that enactment. But with the 
 greatest deference it may be observed that it is somewhat 
 difficult to see how that enactment affects the question ; and 
 the learned judge himself on a subsequent occasion, where a 
 case of suppression, or if not of destruction, of the Will was 
 made out, granted administration with the Will annexed to the 
 residuary legatee {q). So where a codicil had been burnt by 
 the testator's order, but not in his presence, as required by 
 the statute. Sir J. Dodson decreed probate of a draft copy (r). 
 And it should seem, that unless in cases of this kind 
 secondary evidence of the Will were allowed to be sufficient, 
 much injustice and impunity for fraud would be permitted. 
 If a Will be wholly or partially cancelled, or destroyed, by the 
 testator whilst of unsound mind, probate will be granted of it 
 as it existed in its integral state, that being ascertainable (s). 
 Probate granted to one of several executors, enures to the 
 benefit of all (t). "WTiere there are several executors, upon 
 the grant of probate to one of them, it is usual to reserve 
 power of making a like grant to the others. But this 
 appears to be unnecessary, both because the probate already 
 granted enures to their benefit and because they have a 
 right to the grant, whether the power be reserved or not. 
 There is, however, what in the Spiritual Court was called a 
 double probate ; which is in this manner : The first executor 
 that comes in takes probate in the usual form, with reserva- 
 tion to the rest : Afterwards, if another comes in, he also is 
 to be sworn in the usual manner, and an engrossment of the 
 original Will is to be annexed to such probate in the same 
 manner as the first ; and in the second grant such first grant 
 
 {q) Podmore v. Whatton, 3 S\v. 
 & Tr. 449. y^ 
 
 (r) In the goods of Dadds, Dea. 
 & Sw. 290. 
 
 (s) Scruby v. Fordham, 1 Add. 
 74. 
 
 (0 Webster v. Spencer, 3 Barn. 
 & Aid. 363, by Bayley, J.
 
 Cli. II. § VII.] Practice of the Court. 321 
 
 is to be recited. And so on, if there are more that come in 
 afterwards {x). 
 
 If there be several executors appointed with distinct Probate where 
 
 there are seve- 
 
 powers, as one for one part of the estate, and another for rai executors 
 another, yet there being but one Will to be proved, one powers : 
 proving of it suffices {y). So if B. is made executor for ten "o^tioifg o*f"°* 
 years, and afterwards C. is to be executor, and B. proves the time. 
 Will, and the ten years expire, C. may administer without 
 any further probate {z). 
 
 The Court may grant a limited probate where the testator Limited pro- 
 has limited the executor {a). And it is laid down (h) that 
 if a man makes and appoints an executor for one particular 
 thing only, as touching such a statute or bond and no more, 
 and makes no other executor, he dies intestate as to the 
 residue of his estate, and as to this specialty only shall have 
 an executor, and must have a Will proved : but in case he 
 makes another Will for the residue of his estate, there must 
 be two Wills proved. However, where there is an executor 
 appointed without any limitation, the Court can only pro- 
 nounce for the Will, or for an absolute intestacy : It cannot 
 pronounce the deceased to be dead intestate as to the residue, 
 though the executor may eventually be considered only as a 
 trustee for the next of kin (c). 
 
 Where an executrix w^as appointed in a codicil, which An executor 
 gave her a legacy, and nominated her, together with an codicil may 
 executor named in a previous Will, executors of the Will E^'S^^^'' 
 and codicil, declaring it to be a part of the Will, and giving codicil. 
 them the residue in moieties, it was held that she had a 
 right to propound both the Will and codicil, if she thought 
 proper, though the other executor prayed probate, of the 
 
 (x) 4 Burn, E. L. .310, Pliilli- (a) 1 CasTtemp. Lee, 280. Davies 
 
 more's edition. la the goods of v. Queen's Proctor, 2 Robert. 413. 
 
 Bell, L. R., 2 P. & D. 247. In the goods of Beer, ihid. 349. 
 
 {y) Wentw. Off. Ex. 31, 14th {h) Wentw. Off. Ex. 30, 14th 
 
 edit. Bac. Abr. Exors. (C.) 4. edit. 
 
 {z) Anon. 1 Freem. 313. Anon. (c) Sutton v. Smith, 1 Gas. teinji. 
 
 1 Chan. Gas. 265. See Watkins* Lee, 275 : See Spratt v. Harris, 4 
 
 V. Brent, 1 Mylne & Cr. 104. Hagg. 408, 409. 
 
 W.E. — VOL. I. Y
 
 322 
 
 Of Prolate. 
 
 [Pt. 1. Bk. IV. 
 
 Probate of a 
 Will cannot be 
 had during a 
 lis pendens as 
 to a codicil : 
 
 unless by con- 
 sent. 
 
 Probate of 
 codicil where 
 Will has been 
 proved abroad. 
 
 Executor of 
 executor. 
 
 Probate of the 
 Will oifemc 
 overt liefore 
 Ma Tied 
 
 Will alone, and oi^posecl the codicil ; for if the codicil was 
 good, it was part of the Will, and gave her an immediate 
 interest in the Will ; and if she propounded and proved the 
 codicil alone, the next of kin might afterwards oppose the 
 Will, and force her into a second suit, which would be 
 unreasonable (d). 
 
 Probate of a Will cannot be granted to the executor while 
 a contest subsists about the validity of a codicil ; for that 
 being undetermined, it does not appear what is the Will, and 
 the executor cannot take the common oath (e). 
 
 In a case (/), however, where a question arose as to the 
 validity of a codicil revoking the appointment of a co-executor, 
 and the estate required an immediate representation, probate 
 of the undisputed instruments was granted to the other 
 executors, with consent of the co-executor, reserving all 
 questions (g). 
 
 If a Will has been proved abroad, probate of the codicils, 
 if any, must be granted by the Court which granted probate 
 of the Will (/i). 
 
 It has already appeared, that where there is a sole executor, 
 or sole surviving executor, the office is transmissible, and 
 his executor becomes the representative of the original testa- 
 tor (0 : and in such a case, no new probate of the original 
 Will is requisite (A.). 
 
 Where a married woman, before the Married Women's 
 Property Act, 1882, made a Will by virtue of a power, or of 
 
 id) Miller v. Sheppard, 2 Cas. 
 temp. Lee, 506. 
 
 (e) Neagle v. Castlehaven, 2 Cas. 
 temp. Lee, 246. 
 
 (/) Fowlisi;. Davidson, 4 Notes 
 of Cas. 149. 
 
 (y) Where, however, there is no 
 lis pendens, but the Court is in- 
 formed of the existence of codicils 
 abroad, which cannot be produced, 
 the Court will, under special cir- 
 cumstances, grant probate of papers 
 
 fonning part only of the Will, the 
 executor undertaking to prove the 
 other papers or authentic copies 
 thereof, when they arrive : In the 
 goods of Robarts, L. R., 3 P. & D. 
 110. 
 
 (/i) In the goods of Miller, 8 
 P. D. 167. 
 
 {%) Ant£, p. 204. 
 
 (k) Wankford v. Wankford, 1 
 Salk. 309. 
 
 i
 
 Ch. II. § VII.] Practice of the Court. 823 
 
 property enjoyed by her separately, such Will, as there has Women's Pro- 
 been already occasion to show, might be admitted to probate, issl. ^ ' 
 without the consent of her husband (/). Where the Will 
 sought to be established was made by her under a power, it 
 was held that the instrument creating the power must be 
 pleaded in the allegation of the executor, and exhibited (m). 
 The probate, however, of the Will of a feme covert before the Limited form 
 Act was not general, but limited to the property over which 
 she had a disposing power (n). And her husband was entitled 
 to have a grant of administration cceteroriim (o). 
 
 When the Will of a married woman, made before the 
 commencement of the Act is tendered for probate on the 
 ground that she had separate property, and the probate is 
 contested, if the Court is satisfied that there is separate 
 property it has power to grant probate of all such property as 
 the testatrix had power to dispose of without deciding what 
 that property is, although, in general, it is the duty of the 
 Court, so far as the evidence and pleadings enable it to do so, 
 to decide judicially of what such property consists {p). 
 
 Since the commencement of the Married Women's Property Probate of 
 Act, 1882, the limitation in the probate of the Will of a colertincQ 
 married woman, to which reference has been made above. ^^ Marne-i 
 
 " ' ^j Women s Pro- 
 
 is no longer required, and the Court will make a general perty Act, 
 
 , , . 1882: 
 
 grant {a). , 
 
 ° ■'■ no longer 
 
 (0 See ante, p. 50. Eichards, L. E., I P. & D. 156. liUti 'j?,, 
 
 (m) Templet;. Walker, 3 Phillim. In the goods of Ciibbon, II P. D. 
 
 394. In the goods of Monday, 1 169. 
 
 Curt. 590. And by Rule 15 (1862), (o) Brenchley v. Lynn, 2 Robert. 
 
 P. R. (Non-contentious) now re- 441, 471. See 4 M. & G. 398, fer 
 
 pealed, it must have been specified Tindal, C.J. 
 
 in the grant of the probate, &c. {p) In the goods of Tharp, 3 P. 
 
 See ante, p. 53. D. 76. 
 
 (?i) Tappenden v. Walsh, 1 {q) In the goods of Price, 12 
 
 Phillim. 352. Tucker v. Inman, P. D. 137. See also In the goods 
 
 4 M. & G. 1049. Ledgard v. of Homfray, t'6. ] 38 n. i2e Lambert, 
 
 Garland, 1 Curt. 286. See In the 39 C. D. 626. These cases were 
 
 goods of Boswell,3 Curt. 744. In decided upon the New Rules of 
 
 tlie goods of Martin, 3 Sw. & Tr. 1. April, 1887. Rules 15 and 18, 
 
 Inthegoods of De Pradel, L. R., 1 of which the following is the 
 
 P. & D. 454. In the goods of substance, as set out in In the 
 
 V 2 
 
 general grant.
 
 324 
 
 Of Prohate. 
 
 [Pt. I. Bk. IV. 
 
 The effect of tlie general probate is only to enable the 
 executor to get in all the assets of the wife whether she has 
 power to dispose of them or not, and it does not affect the 
 beneficial title to them (r). 
 
 In general cases, if the Will be limited to any specific 
 effects of the testator, the probate shall also be so limited, and 
 an administratio ccBterorum granted (s). 
 
 When the Will is proved, the original is deposited in the 
 
 registry it), and a copy thereof in parchment is made out 
 
 deposit of Will under the seal of the Court, and delivered to the executor, 
 
 together with a certificate of its having been proved ; and such 
 
 copy and certificate are usually styled the probate. 
 
 There has already been occasion to explain the nature of 
 a probate in facsimile, and the occasions on which such a 
 probate is granted {u} . The operation of it will be further 
 
 Administratio 
 cwtcroruvi. 
 
 Probate 
 makiiiff out 
 
 Probate in 
 fac simile. 
 
 goods of Price, uhi sup. : " In a 
 grant of probate of tlie "Will of 
 a married woman, or the Will of 
 a widow made during coverture, 
 or letters of administration with, 
 sucli Will annexed, it shall not be 
 necessary to recite in the grant, or 
 in the oath to lead the same, the 
 separate personal estate of the tes- 
 tatrix, or the power or authority 
 vnider which the Will has been, or 
 purports to have been, made. The 
 probate, or letters of administration 
 with Will annexed, in such cases 
 shall take the form of ordinary 
 grants of probate or letters of ad- 
 ministration with Will annexed, 
 without any exception or limita- 
 tion, and issue to an executor, or 
 other person authorised in usual 
 course of representation to take the 
 same : a surviving husband, how- 
 ever, being entitled to the same in 
 preference to the next of kin in 
 case of a partial intestacy." 
 
 (r) Smart v. Tranter, 43 C. D, 
 587. 
 
 (.>() Wentw. Off. Ex. 30, l-4th 
 edit. Toller, 67. 
 
 (0 See Stat. 20 & 21 Vict. c. 77, 
 s. 66, by which provision is made 
 for a place for the deposit of 
 original Wills when proved. Ante, 
 p. 262. On one occasion, an ori- 
 ginal codicil, of which probate had 
 been granted, containing an as- 
 signment of 10,000^. part of 15,000/. 
 secured by a heritable bond in 
 Scotland, was delivered out of the 
 Eegistry of the Prerogative Court, 
 in order to its being registered in 
 Scotland, and there finally de- 
 posited ; this being necessary to 
 carry the same into effect, and the 
 codicil itself (termed in Scotland 
 a deed of disposition or assigna- 
 tion) not relating to any property 
 of the testator in this country : In 
 the goods of Nicholson, 2 Add. 
 333. See also In the goods cf 
 Russell, 1 Hagg. 91. Be Napoleon 
 Bonaparte, 2 Robert. 290. 
 
 (u) Ante, p. 273. 
 
 i
 
 Ch. II. § VIII.] Of Mandamus to compel Probate. 325 
 
 considered hereafter, together with the subject of the effect of 
 probate, and letters of administration generally (x). 
 
 If a Will be in a foreign language, the probate is granted of Probate of Will 
 a translation of the same by a Notary Public (y). But it language." 
 should seem that the Temporal Courts are not bound by it, 
 and may themselves correct any inaccuracy in it {2). 
 
 "Where the probate is lost, the Spiritual Court never granted Lost probate. 
 a second, but merely an exemplification of the probate from 
 their own records, and such exemplification was evidence of 
 the Will having been proved (rt)' 
 
 The probate may be revoked either on suit by citation Revocation of 
 {e. g. where the executor, after proof in common form, is cited citation or 
 to prove the W^ill in solemn form, or even after proof in ^pp^'^'- 
 solemn form, where the probate is shown to have been 
 obtained by fraud, or the Will of which it has been granted is 
 proved to have been revoked, or a later Will made) {h), or on 
 appeal to a higher tribunal. But it will be more convenient 
 to consider the mode of such revocation, and its consequences, 
 at a future stage, conjointly with the revocation of grants of 
 administration {c). 
 
 SECTION VIII. 
 
 Of Mandamus to compel Prohate. 
 
 As matters testamentary in which, before the passing of No longer 
 the Judicature Act, the Court of Probate had exclusive perprobate"by 
 jurisdiction, are by that Act assigned to the Probate Division ii^andamus. 
 of the High Court, it seems clear that the power to compel 
 probate by Mandamus no longer exists. 
 
 The Queen's Bench Division in which, as the successors of 
 the old Court of Queen's Bench, the right to issue a Manda- 
 
 (x) Post, Pt. I. Bk. VI. Ch. I. Stra. 412. 
 
 ly) Toller, 72. Qj) Wentw. Off. Ex. Ill, 112, 
 
 \z) L'Fit V. L'Batt, 1 P. Wms. 14th edit. 
 526. Post, Pt. I. Bk. VI. Ch. i. (c) Post, Pt. I. Bk. vi. Cli. il. 
 
 (rt) Shepherd v. Shortliose, 1
 
 32G 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 mus is vested, is powerless to control by Mandamus the pro- 
 ceedings of any but an Inferior Court ; and thus it has no 
 power to superintend or control the Judges of another Division 
 of the same Court, should they exceed their authority or 
 decline to exercise the jurisdiction which they possess. 
 
 In the former Editions of this Work, Pt. I. Bk. IV. ch. 11. 
 § 8, will be found a reference to the power of the Temporal 
 Courts, formerly existing over the Ecclesiastical Courts exer- 
 cised by Mandamus or Prohibition. 
 
 Probate must 
 be obtained of 
 evei7 testa- 
 mentary in- 
 stmraent 
 operating on 
 personal estate, 
 but not neces- 
 sarily of one 
 which does not 
 operate on per- 
 sonal estate. 
 
 No probate of 
 paper neither 
 disposing of 
 property nor 
 appointing 
 executor. 
 
 A codicil, how- 
 ever, merely 
 revoking or 
 confirming 
 former Wills, 
 should be 
 proved. 
 
 A Will of lands 
 only ought not 
 to be proved in 
 the Probate 
 Court : 
 
 SECTION IX. 
 
 Of what Instruments Probate is necessary, and ichat 
 Instruments ought not to he jirovcd. 
 
 If an instrument be testamentary {d), and is to oj^eratc on 
 l)crsonal erAate, whatever may be its form, probate of it must 
 be obtained in the Court of Probate ; otherwise its existence 
 cannot be recognized in any Court of law or equity. 
 
 A paper which neither disposes of property nor appoints 
 an executor generally speaking has no testamentary character 
 so as to enable the Court to grant probate of it [e) . 
 
 But a codicil, not containing any disposition of property, but 
 simply revoking all former Wills, is of a testamentary nature, 
 and, if proved, ought to be admitted to probate (/). So if 
 the executor, after probate, discovers any testamentary paper, 
 he ought to bring it into the Court of Probate, even though 
 it be a mere confirmation of the Will already proved {ij). 
 
 Where, however, a Will clearly respects land only, and no 
 personal property, it ought not to be proved in the Court of 
 Probate {h). 
 
 [d) As to wLat is a testamen- (/) Brencliley f. Still, 2 Robert, 
 tary instrument, see i)ost, Pt. iii. 162. 
 
 Bk. V. Ch. II. and aide, pp. 93, {g) Weddall v. Nixon, 17 Beav. 
 
 94, et seq. 160. 
 
 (e) Van Straubenzee v. Monck, (h) Habergbam v. Vincent, 2 
 3 Sw. & Tr. 6. Ves. 230, by Buller, J. In the
 
 Cli. II. § IX.] Ofivliat Insti'uinents it is necessary. 327 
 
 But if a Will is a mixed Will concerning both lands and secus, of a 
 goods, it must be proved entirely in the Court of Probate (A), lands and 
 
 So the nomination of executors in a testamentary paper, ^°°^^ ' 
 purporting to dispose of real property only, entitles the executors are 
 document to probate (l). And this notwithstanding the re- wSfdlinds'' 
 nunciation of the executor {m). This rule, however, does not °^^y- 
 hold good in the case of the Will of a married woman made o/married ' 
 under a power of appointment, and disposing of real property ^'oman made 
 only : for the Will, although it is in the form of a Will as disposing only 
 required by the instrument giving the power, is, in fact, a perty : ^'^°' 
 conveyance by means of the appointment exercised, and, 
 although an executor is appointed, the executor takes nothing 
 in his character of personal representative. If, however, a exception to 
 married woman making a Will disposing of realty only, and 
 appointing executors {n), has not only a power of appointment 
 given her by the deed, but also a vested interest to her 
 separate use in the real property apart from that power, and 
 she really exercises, not only what rights she had under the 
 power, but the rights which she has beyond it, she is in the 
 position of a feme sole with regard to the real estate, and the 
 Will is entitled to probate (o). 
 
 In the case of such a mixed Will, if there be occasion to 
 prove the devise of the land, in an action concerning it, it 
 was formerly necessary to give the Will itself in evidence ; 
 but now if notice is given of the intention to put the probate 
 
 goods of Drummoiul, 2 S\v. & of Leese, 2 Sw. & Tr. 442. Brown- 
 
 Tr. 8. In the goods of Bootle, rigg v. Pike, 7 P. D. 61. In the 
 
 L. K, .3 P. & D. 177. A Will, goods of Cubbon, 11 P. D. 169. 
 
 however, disposing of freehold In the goods of Hornbuckle, 15 
 
 property which, by the doctrine of P. D. 149, 151. See also Beard v. 
 
 equitable conversion, is to be con- Beard, 3 Atk. 72, ante, ■p. 164. See 
 
 sidered as personalty, is entitled to further In the goods of Lancaster, 
 
 probate : In the goods of Gunn, 9 1 Sw. & Tr. 464. 
 P. D. 242. See In the goods of (7n) In the goods of Jordan, L. R., 
 
 Barden, L. R., 1 P. & D. 325. 1 P. & D. 555. 
 
 (k) Partridge's case, 2 Salk. 553. (n) In the goods of Tomlinscn 
 
 {I) O'Dwyer v. Geare, 1 Sw. & 6 P. D. 209. 
 Tr, 465, In the goods of Barden, (o) In the goods of Hornbuckle, 
 
 L. R, 1 P. & D. 325. In the goods 15 P. D. 149.
 
 328 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 protluctJOTi of 
 original Will : 
 how procured ; 
 
 ■where it is 
 doubtful 
 whether all 
 the property is 
 freehold, pro- 
 bate ought to 
 he granted. 
 
 "When probate 
 necessarj' of a 
 Will made in 
 execution of a 
 power. 
 
 in evidence, the probate is sufficient evidence of the Will and 
 its validity, unless the party, to whom such notice has been 
 given, shall himself give notice that he intends to dispute the 
 validity of the Will {j>). 
 
 When an original Will is required to be produced in Court, 
 the attendance with it of the proper officer, in whose custody 
 it is deposited, may be procured in the same manner as in 
 other cases where the production of an original record, or 
 instrument in the nature of a record, is required. 
 
 If it should be douhtfal whether some part of the property 
 be freehold, the Ecclesiastical Court always held, that it 
 ought to grant probate ; for the obvious reason that the 
 probate may be necessary to the purposes of justice, and no 
 evil can arise from the grant of it (?■)• 
 
 Where a AVill is made in execution of a power, if it 
 relates to personalty, it must be proved in the Court of 
 Probate (s). 
 
 There has already been occasion to show that this has 
 been determined, in regard to an appointment by the Will 
 of a married woman, which it is now settled, the Courts of 
 Equity will not read, until it has been duly proved as a 
 proper Will in the Court of Probate (t). But though a 
 Court of Equity cannot give effect to testamentary papers 
 without probate, it may, perhaps, when necessary, order an 
 enquiry for the very purpose of sending such papers to be 
 proved (//). 
 
 {'!>) Stat. 20 & 21 Vict. c. 77, 
 sect. 64. See ante, p. 2G3 ; j^o^t) 
 p. 481. 
 
 (r) By Sir John Nicholl, in 
 Tliorold V. Thorold, 1 PhilUm. 8, 9 : 
 See al.«o the case of Diirkin v. 
 Johnstone, Prerog. 1796, decided 
 by Sir W. Wynne, and reported in 
 a note to 1 Phillim. 8. 
 
 (s) See Sugd. on Pow. 21, 6th 
 edition. Tattnall v. Hankey, 2 
 Moo. P. C. 342, 351, 352, 353. 
 Goldsworthy v. Crossley, 4 Hare, 
 
 140. 
 
 (t) If, however, the "Will of a 
 married woman, made under a 
 power of appointment, disposes of 
 real property only, it is not en- 
 titled to probate, even though it 
 contains an appointment of execu- 
 tors : In the goods of Tomlinson,. 
 6 P. D. 209. But see In the goods- 
 of Hornbuckle, 15 P. D. 149, for 
 a cjualification of this rule. See 
 ante, p. 327. 
 
 (w) See Brenctley f. Lynn, 2
 
 Ch. II. § IX,] Of ivhat Instruments it is necessary. 329 
 
 However, a Will, simply in execution of a power affecting 
 realty, and not even appointing an executor, will be dealt 
 with in Chancery without the interference of a Court of 
 Probate {x). 
 
 In Pelham v. Newton (y), a testatrix directed her executor Probate of 
 to deliver certain parcels sealed up, and directed to certain directed by the 
 persons, which were in a small iron chest, to the persons to Y^}} *° ^^ 
 
 •■• ' ' ■■■ delivered un- 
 
 whom they were directed, unopened, and desired those persons opened to 
 
 . - . , . legatees. 
 
 would not tell one another what was contained m their respec- 
 tive papers : Sir G. Lee was of opinion that the executors 
 could not safely deliver them unopened ; for if they should be 
 called to an inventory, they could not give in one on oath, 
 without knowing what was contained in those parcels ; and if 
 they assented to them as legacies, and there should not be 
 assets sufficient to pay the debts, they would be guilty of a 
 devastavit : The learned Judge therefore decreed those parcels 
 to be opened in the presence of the Kegistrar, to see what 
 was contained in them : they were accordingly opened in 
 Court, and they contained bank-notes, some of 201. , and 
 some of 301. each, of which a schedule was made, of the 
 ^ames of the persons, and of the sum contained under each 
 person's name, to be added as a codicil to the Will : and pro- 
 bate was decreed of the Will, and all the aforesaid papers, to 
 the executors. 
 
 In Inchiqidn v. French (z), Lord Thomond by his Will Instruments of 
 
 which probate 
 
 gave 20,000L to Sir William Wyndham ; and by a deed poll is not neces- 
 
 of the same date, which referred to his Will, he declared that ^^'^^ ' 
 
 the legacy was given to him upon trust for Lord Clare : Sir Declaration of 
 
 trust : 
 
 William Wyndham died in the testator s lifetime, and the 
 
 Eobert. 458, et seq., by Dr. Lush- in 1 Cox, upon which Lord 
 
 ington. Giffard relied in his judgment in 
 
 (x) Per Bay ley, B., 4 Hagg. 64. Smith v. Attersoll, is incorrect in 
 
 (i/) 2 Cas. temp. Lee, 46. that the question of whether there 
 
 (z) 1 Cox, 1. This case is also was a trust was not really decided ; 
 
 reported in Ambler, p. 33, and but as Hall, V.-C, points out, 
 
 it would seem from the judgment Smith v. Attersoll has been re- 
 
 of Hall, V.C, in Ee Fleetwood, ferred to in subsequent cases. 
 
 (15 Ch. D. p. 603), that the report
 
 330 Of Prohafe. [Pt. i. Bk. iv. 
 
 deed poll was not proved : The question was, whether, though 
 the legatee named in the Will had died before the testator, 
 the person, who was the cestui que trust of the legacy, and 
 was substantially the legatee, was entitled to the 20,000/. 
 under the deed poll, which had not been proved as a testa- 
 mentary paper : Lord Hardwicke held, that the deed poll, 
 though never proved, sufficiently declared the trusts of the 
 legacy of 20,000/., and decreed accordingly. 
 
 In Smith v. Attersoll (a), a testator bequeathed a legacy to 
 A. and B., in trust for certain purposes, which the Will 
 stated to have been fully explained to them ; on the same 
 day a paper writing was signed by A. and B. in which they 
 declared that the bequest was upon trust for six persons, 
 whose names were stated ; and after their signature, some 
 lines were added in the handwriting of the testator, by which 
 a seventh person (an unborn child) was admitted to a share 
 of the legacy : Upon a bill, filed by one of the six persons 
 named in the body of the paper writing, Lord Gifford, M.R., 
 recognized the paper writing as a valid declaration of trust, 
 though it had not been proved as a testamentary paper. 
 
 A Will appoint- From the decisions which have taken place, it is quite 
 ing testamen- 
 tary guardians: 
 
 (a) 1 Eus5. Chanc. Cas. 26fi. not fully declared, no trust after- 
 
 As to the cases in which a Court wards declared by a paper not 
 
 of Equity will give effect to a executed as a Will could be 
 
 trust not disclosed, or not fully binding. Johnson v. Ball, o De G. 
 
 disclosed, in the testamentary & Sm. 85 ; Briggs r. Penny, 3 Mac. 
 
 instrument, and as to what evi- & G. 546 ; Singleton v. Tomlinson, 
 
 dence is admissible, see Moss r. .3 App. Cas. 404. But the legatee 
 
 Cooper, 1 J. & H. 352, 367 ; will not, in such a case, take a 
 
 Irvine v. Sullivan, L. E., 8 Eq. beneficial interest, but will be 
 
 673. The whole of the cases are treated as trustee for the next of 
 
 reviewed by Hall, V.-C, in Be kin. Re Boyes, 26 Ch. Div. 535. 
 
 Fleetwood, 15 C. D. 603. On the same principle the Court 
 
 The ground upon which effect is will enforce the trust where no 
 
 given to non-testamentary docu- trust appears on. the face of the 
 
 ments is not as acts of the testa- Will, provided the Court is satis- 
 
 tor, but rather as trusts binding fied that there has been a com- 
 
 on the conscience of the legatee. munication by the testator and 
 
 If the trust is expressed on the acceptance by the legatee. Be 
 
 face of the Will, but the trusts aie Boyes, 26 Ch. D. 531. And it
 
 per- 
 
 ch. II. § IX.] 0/ what Instruments it is necessary. 331 
 
 clear that it is not necessary that a Will simply appointing 
 testamentary guardians should be proved in the Court of 
 Probate (h). 
 
 Nor is it necessary to prove a Will in the Court of A Will giving 
 Probate, to entitle a legatee to recover a legacy out of real real estate : 
 estate (c). 
 
 As a Court of Equity considers money directed to be laid or disposing of 
 out in land, as land, the Court of Probate has no jurisdiction to be laid out 
 over a devise disposing of property so converted {d). '" 
 
 And where freehold property is by the doctrine of equitable But probate 
 
 ., T T TTT-n T • necessary of 
 
 conversion to be considered as personalty, a Will, disposing wm disposing 
 of it, is entitled to probate (e) : but the proceeds of real consTd^ered^ 
 property sold under the Settled Estates Acts, and not yet sonaityby 
 
 i- ^ -> ^ J equitable con- 
 
 converted into realty, have not become personal property in version. 
 respect of which the Court of Probate has jurisdiction (/). 
 
 would appear that a trust by trust mentioned on tlie face of the 
 
 communication with the legatee Will and a trust, the existence of 
 
 may t)e created by a communica- which is undisclosed, cannot be 
 
 tion subsequent to the Will. Moss supported. 
 
 V. Cooper, 1 J. & H. 352, 367 ; but {h) Gilliat v. Gilliat, 3 Phillim. 
 
 the trust must be communicated 222. Lady Chester's Case, 1 Ventr. 
 
 in the lifetime of the testator. 207. In the goods of Morton, 
 
 Be Boyes, 26 Ch. Div. 531. 3 Sw. & Tr. 422. 
 
 It was at one time supposed that (c) Tucker v. Phij)ps, 3 Atk. 
 
 parol e^ddence was not admissible 361. 
 
 to prove the trusts in cases where (d) By Lord Hardwicke, in 
 
 the trust is referred to in the Will, PuUen v. Ready, 2 Atk. 590. 
 
 and that such evidence was ex- (e) In the goods of Gunn, 
 
 eluded by the effect of the Wills P. D. 242. See In the goods uf 
 
 Act, but it would appear from Barden, L. R. 1 P. & D. 32^5. 
 
 Ee Fleetwood, vM suj)., that this (/) In the goods of Lloytl, 
 
 distinction between the case of a 9 P. D. 65.
 
 332 
 
 CHAPTER THE THIRD. 
 
 Wills of sea- 
 men and 
 marines. 
 
 1 Vict. c. 26, 
 s. 11 : 
 
 28 & 29 Vict. 
 c. 72. 
 
 28 & 29 Vict, 
 c. 111. 
 
 Stat. 28 & 29 
 Vict. c. 72, 
 s. 2. 
 
 Interpretation 
 clause. 
 
 Sect. 3. 
 Will made 
 before entry 
 ineffectual as 
 to wages, &c. 
 
 OF THE MAKING AND PROBATE OF THE WTLLS OF SEAMEN 
 AND MARINES. 
 
 1T' lias already been stated, that the Statute of Frauds 
 contains an exception as to Wills made by " any soldier 
 being in actual military service, or any mariner or seaman 
 being at sea" (a). This exception is continued by the 
 1 Vict. c. 26, by the 11th sect, of which it is provided and 
 enacted, " that any soldier being in actual military service, or 
 any mariner or seaman being at sea, may dispose of his 
 personal estate as he might have done before the making of 
 this Act" {h). 
 
 With regard to the Wills of seamen and marines and the 
 disposal of their effects, various statutes have been passed 
 from time to time. Those which are now in force are 28 & 
 29 Vict. c. 72, 28 & 29 Vict. c. Ill, and an Order in Council 
 of Dec. 28th, 1865. 
 
 By Stat. 28 & 29 Vict. c. 72, s. 2, the term " seaman or 
 marine " means a petty officer or seaman, non-commis- 
 sioned officer of marines or marine, or other person forming 
 part in any capacity of the complement of any of her 
 Majesty's vessels, or otherwise belonging to her Majesty's 
 naval or marine force, exclusive of commissioned, warrant, 
 and subordinate officers, and assistant engineers, and of 
 kroomen(fZ). 
 
 3. "A Will made after the commencement of this Act by 
 any person at any time previously to his entering into 
 
 (a) See ante, pp. 103, 104. been put upon the term "mariner 
 
 (h) See ante, pp. 63, 104, 105. or seaman" witMn sect. 11 of the 
 
 (rf) This definition is not so "Wills Act. See ante, p. 105. 
 ■wide as the meaning which has
 
 Ch. III.] Wills of Seamen and Man^nes. 333 
 
 service as a 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 Sect. 4. 
 
 ... . • 1 11 J. 1 Will iuvalid if 
 
 any person while serving as a seaman or marine snail not be combined with 
 valid for any purpose if it is written or contained on or in ^'^^^^.^g°^ 
 the same paper, parchment or instrument with a power of 
 attorney." (e) 
 
 5. "A Will made after the commencement of this Act by Sect. 5. 
 
 Regulations for 
 
 any person while serving as a seaman or marine, or when wills of sea- 
 he has ceased so to serve, shall not be vaHd to pass any tr'vagesj'&c. 
 wages, prize money, bounty money, grant, or other allowance 
 in the nature thereof, or other money payable by the Ad- 
 miralty, or any effects or money in charge of the Admiralty, 
 unless it is made in conformity with the following provi- 
 sions : — 
 
 (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 sub- 
 ordinate 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 in- 
 cumbent, curate, or minister of a church or place of 
 
 (c) See ante, p. 44.
 
 334 
 
 Of Prolate. 
 
 [Pt. I. Bk. IV. 
 
 ?ect. 6. 
 As to Wills 
 made by 
 prisoners of 
 war. 
 
 Sect. 7. 
 Pavment iimlei 
 Will not in 
 conformity 
 with Act. 
 
 worship iu 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 
 testator under such Will shall exclusively be deemed the 
 testator'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 signature 
 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 be- 
 longing 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 ; 
 
 (3.) If the Will is in writing and executed with the for- 
 malities 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 military service or a mariner or a 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
 
 Cli. III.] Wills of Seamen and Marines. 335 
 
 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 compliance with the require- 
 ments of this Act may be properly dispensed with." 
 
 By the Order in Council of Dec. 28th, 1865, it is provided : Order in 
 Sect. 3, that in the office of the inspector of seamen's Wills 28, 1865. 
 there shall be a repository for the Wills of seamen and S. 3 : 
 marines. Sect. 4, that such Wills intended to pass naval s. 4 ; 
 assets (defined by Sect. 2 to be all property affected by 28 & 
 29 Vict. c. Ill) may, as soon as practicable after execution, be 
 sent to the Secretary of the Admiralty to be examined by the 
 inspector. Sect. 5, that the Will is to be registered by the s. 5 : 
 inspector, together with certain particulars therein mentioned. 
 Sect. 6 provides for the return to the intending testator of a s. 6 : 
 Will, which appears to the inspector to be invalid on account 
 of any informality or of non-accordance in any respect with 
 28 & 29 Vict. c. 72, or otherwise, and for the statement in 
 writing of his objection and the mode of removing it. Sect. 7 »• 7 - 
 provides for the stamping of a Will which appears valid, for 
 its being placed under seal in the repository provided, and for 
 the issue of a receipt for it to the testator. Sect. 8 provides s. 8 : 
 that : " With reference to every such Will the inspector shall 
 also proceed as follows : — (1) He shall, with all convenient 
 speed, issue to the person appointed executor, if any, a cheque 
 of the will, not giving any information respecting the tes- 
 tator's disposition of his property, but containing directions 
 as to the steps to be taken on the testator's death. (2) If 
 there is not any person appointed executor, then, with the 
 assent of the testator, either implied by the mode of trans- 
 mission of the Will to the admiralty office or expressed, but 
 not otherwise, he shall with all convenient speed issue to the 
 residuary or the universal legatee, or other person most 
 beneficially interested under the Will, a cheque in lieu of the 
 Will, containing directions as to the steps to be taken on the 
 testator's death. (3) If in any such last mentioned case, by 
 reason of the absence of such assent, a cheque is not issued
 
 336 Of Prolate. [Pt. i. Bk. iv. 
 
 in the testator's lifetime then he shall, with all convenient 
 speed, after the testator's death issue to the residuary or the 
 universal legatee, or other person most beneficially interested 
 under the Will, a cheque in lieu of the Will, containing direc- 
 tions as to the steps to be taken in consequence of the tes- 
 tator's death." 
 
 ^- ^ * Sect. 9 provides for the case of a Will not deposited by the 
 
 testator in his lifetime that it shall be sent as aforesaid by 
 
 s. 10 : the executor or other person having possession of it. Sect. 10 
 
 contains the same provisions for Wills deposited after the 
 
 s. 11 : testator's death as Sect. 5. Sect. 11 provides in cases where 
 
 the Will appears invalid, as in Sect. 6, that the inspector 
 shall as soon as may be give notice in writing to the executor, 
 or if none to the residuary or universal legatee, or other 
 person most beneficially interested under the alleged Will, 
 informing him that it is stopped and stating the reason. 
 
 s. 12 : Sect. 12 provides that where the Will appears valid the 
 
 inspector shall have it stamped and issue to the executor, or 
 if none to the residuary or universal legatee, or other person 
 most beneficially interested under the Will, a cheque in lieu 
 of the Will containing directions as to the steps to be taken 
 
 6. 13: in consequence of the testator's death. Sect. 13. " Where a 
 
 seaman or marine dies leaving a Will, and a cheque has been 
 issued in pursuance of the foregoing provisions, the following 
 steps shall be taken (in cases where this course of proceeding 
 is applicable) by and with respect to the holder of the 
 cheque : — (1) The ofiiciating minister of the parish or dis- 
 trict parish wherein the holder of the cheque resides shall on 
 his request examine him and two inhabitant householders of 
 the parish produced by him for the purpose. (2) In the 
 presence of the minister, the holder of the cheque shall sign 
 the application, and the householders shall sign the certifi- 
 cate subjoined to the cheque (all blanks being first filled up 
 according to truth, and the minister having first read over to 
 the holder of the cheque and householders the caution printed 
 on the cheque), for which purpose the holder of the cheque 
 and householders shall attend at such time and place as the
 
 Ch. III.] Wills of Seamen and Marines. 337 
 
 minister appoints. (3) The minister being, on examination 
 of the holder of the cheque and householders, satisfied of the 
 truth of their statements, and of the holder of the cheque 
 being the executor, or other person therein described as 
 qualified to act, and of the persons certifying being inhabitant 
 householders of the parish, and having seen the parties sign 
 the application and certificate respectively, shall add a descrip- 
 tion of the height, complexion, colour of eyes and hair and 
 age of the holder of the cheque and of any observable pecu- 
 liarities of person about him, and shall certify to the several 
 particulars by subscribing his signature thereto. (4) The 
 holder of the cheque shall, before signing the application, 
 pay to the minister a fee of 2s. 6d. for his trouble in the 
 matter. (5) The application and certificates being completed, 
 the minister shall return them with the cheque addressed as 
 directed." 
 
 Sect. 14. " If the inspector, on the return of the cheque, s. H : 
 application, and certificates, is satisfied of the right of the 
 claimant he shall proceed as follows : — (1) In case repre- 
 sentation is required or intended to be taken out, he shall 
 indorse on the original Will a certificate (in such form and to 
 such effect as he thinks fit) to enable the claimant to take 
 out representation, and shall deliver the Will to the claimant ; 
 and probate, obtained in accordance with the certificate, being 
 produced to the inspector and registered and being indorsed 
 by him as available for receipt of naval assets, shall be so 
 available. (2) In case representation is not required or in- 
 tended to be taken out, the inspector shall issue to the 
 claimant a certificate, which shall be available for receipt of 
 naval assets, without probate." 
 
 Sect. 15. " If the inspector, on the return of the cheque, s. 15 : 
 application, and certificates, is not satisfied of the right or fit- 
 ness of the claimant, he may (by indorsement on the original 
 Will) certify to that efiect, and that he declines to interfere ; 
 or if he thinks fit, he may (by indorsement on the original 
 Will) certify his objections for the information of the Court 
 out of which representation would be taken, and if the Court 
 
 W.E. — VOL. I. Z
 
 338 Of Probate. [Pt. i. Bk. iv. 
 
 thinks fit to grant probate to the claimant, the same, being 
 produced to the inspector and registered, shall be indorsed by 
 him as available for receipt of naval assets and shall be so 
 available accordingly." 
 
 s. 16 : Sect. 16 provides that the minister shall advise the admi- 
 
 ralty by letter of his reasons if he is not satisfied that the 
 holder of the cheque is the person qualified to act according 
 to it. Sect. 17 provides that, where probate has been obtained 
 without the inspector's certificate, and naval assets form part 
 of the effects, the inspector may, if satisfied that representa- 
 tion has been obtained by the proper person, admit the pro- 
 bate as authority for the receipt of naval assets by indorsement 
 thereon, and that it shall be available accordingly. 
 
 For further information as to the disposal of money and 
 effects under the control of the admiralty belonging to de- 
 ceased officers, seamen, and marines of the Eoyal Navy, and 
 marines and other persons, see stat, 28 & 29 Vict. c. Ill, 
 the Order in Council just referred to and Tristram & Coote's 
 Probate Practice, Pt. I. Ch. IV. With regard to the Wills 
 
 17 & IS Vict of merchant seamen, the Merchant Shipping Act (17 & 18 
 Vict. c. 104) provides, by Sections 200 and 201, for the mode 
 of payment by the Board of Trade of the money and effects of 
 deceased seamen and apprentices. 
 
 I
 
 339 
 
 BOOK THE FIFTH. 
 
 OP THE ORIGIN OF ADMINISTRATION : AND OF THE 
 APPOINTiMENT OF ADMINISTRATORS. 
 
 CHAPTER THE FIRST. 
 
 IN WHAT COURT ADMINISTRATION MUST BE TAKEN OUT : AND 
 THEREWITH OF WHAT MAY BE DONE BY THE ADMINISTRATOR 
 BEFORE LETTERS OF ADMINISTRATION ARE GRANTED. 
 
 JLN case a party makes no testamentary disposition of his 
 personal property, lie is said to die intestate {a) : the conse- 
 quences of which it is now proposed to consider. 
 
 SECTION I. 
 
 In what Court the Letters of Administration shall be 
 obtained. 
 
 In ancient time, when a man died without making any 
 disposition of such of his goods as were testable, it is said 
 that the king, who is parens patrice, and has the supreme 
 care to provide for all his subjects, used to seize the goods 
 of the intestate, to the intent that they should be preserved 
 and disposed for the burial of the deceased, the payment of 
 his debts, to advance his wife and children, if he had any, 
 and if not, those of his blood (/;). This prerogative the King Ancient prcro- 
 continued to exercise for some time by his own ministers of ^1!*^!,^ .*^ ' ^^ 
 justice, and probably in the County Court, where matters 
 of all kinds were determined ; and it was granted as a fran- 
 
 (a) 2 Black. Comm. 494. (/;) Hensloe's case, 9 Co. 38, h. 
 
 I 2
 
 840 
 
 Of the Origin of Administration. [Pt. i. Bk. v. 
 
 transferred to 
 the prelates : 
 
 by stat. 
 Westmr. 2, 
 Ordinary 
 bound to pay 
 debts of in 
 testate : 
 
 chise to many lords of manors, and others, who had, until 
 the passing of the Court of Probate Act, a prescriptive 
 right to grant administration to their intestate tenants and 
 suitors in their own Courts Baron and other Courts (c). 
 Afterwards the crown, in favour of the Church, invested 
 the prelates with this branch of the prerogative : for it 
 was said, none could be found more fit to have such care 
 and charge of the transitory goods of the deceased, than 
 the Ordinary, who all his life had the cure and charge of his 
 soul. The goods of the intestate being thus vested in the 
 Ordinary, as trustee (cZ) to dispose of them in inos usus, it 
 has been said that the clergy took to themselves (under the 
 name of the church and poor,) the whole residue of the 
 deceased's estate, after the partes rationahiles of the wife 
 and children had been deducted, without paying even his 
 lawful debts and charges thereon : until by stat. Westm. 2, 
 (13 Edw. I. c. 19), it was enacted that the Ordinary should 
 be bound to pay the debts of the intestate as far as his goods 
 extended, in the same manner that executors were bound in 
 case the deceased had left a Will (c). However, in Snelling's 
 case, it was resolved that, if the Ordinary took the goods 
 into possession, he was chargeable with the debts of the 
 intestate at common law, and that the stat. West. 2 was 
 made in affirmance of the common law (/). But though 
 the Ordinary was (either at common law, or by force of this 
 
 (c) 2 Black. Comm. 494 ; see 
 ante, p. 236. 
 
 {([) The clergy had never, at any 
 time, in this country, by law, any 
 beneficial interest in the property 
 of intestates, but merely the right 
 or duty of jurisdiction and admin- 
 istration, and the right of posses- 
 sion for the latter purpose ; Dyke 
 t'. Walford, 5 Moo. P. C. 434. 
 
 (c) 2 Black. Comm. 495, The 
 32nd article of the Magna Charta, 
 extorted from King John, expressly 
 provides against these abuses ; but 
 
 it is a curious fact, and one which 
 strongly marks the influence of 
 the papal power in England at 
 that period, that this article was 
 wholly omitted in the Magna 
 Charta of Hen. III. : Note to 
 Warwick v. Greville, 1 Phillim 
 124, by the learned reporter. 
 
 (/) 5 Eep. 82, h. See also 
 Hensloe's case, 9 Rep. 39, h, where 
 Lord Coke lays down the same 
 law, and cites several authorities 
 in support of it : Com. Dig. 
 Administrator (A.).
 
 Cli. I. § I.] Of the Ovi'jia of Administration. 341 
 
 statute,) liable to the creditors for their just and lawful 
 demands, yet the residaum, after payment of debts, remained 
 still in his hands, to be applied to whatever purposes the 
 conscience of the Ordinary should approve. The flagrant 
 abuses of which power occasioned the Legislature to inter- 
 pose, in order to prevent the Ordinaries from keeping any 
 longer the administration in their own hands, or those of 
 their immediate dependents : and therefore the statute of 
 31 Edw. III. st. 1, c. 11, provides, " that in case where 31 Edw. III. 
 a man dieth mtestate, the Ordinaries shall depute of the next istration to be 
 and most lawful friends of the dead person intestate to g''=^nted to the 
 
 ^ next and 
 
 administer his goods : which persons so deputed shall have ™"st lawful 
 
 friends ; 
 
 action to demand and recover, as executors, the debts due to whence origi- 
 the said deceased intestate, in the King's Court, to administer "rotors.* "^"^^ " 
 and dispend^for the soul of the dead : and shall answer also 
 in the King's Court, to others to whom the said deceased 
 was holden and bound, in the same manner as executors 
 shall answer. And they shall be accountable to the Ordi- 
 naries as executors be in the case of testament, as well as of 
 the time past as the time to come." 
 
 This is the original of administrators, as they stood at the 
 time of the passing of the Probate Act (1857), 20 & 21 
 Tict. c. 77 {g). They were the officers of the Ordinary 
 appointed by him in pursuance of the statute {h), and their 
 title and authority were derived exclusively from the Eccle- 
 siastical Judge, by grants which are usually denominated 
 letters of administration. 
 
 But there has already (i) been occasion to show that by the I'^y t^ie Court 
 
 ^ ^ ^ "^ of Probate Act 
 
 3rd section of the Court of Probate Act (1857), the juris- (1857), s. 3, 
 diction of the Ecclesiastical and all other Courts to grant Ecdesksti&u 
 letters of administration of the effects of deceased persons Courts to gi-ant 
 
 ■^ administratioa 
 
 was abolished ; and by sect. 4 (k), that jurisdiction was to be is abolished. 
 exercised in the Queen's name by the Court of Probate. exercised in the 
 
 The jurisdiction of the Court of Probate is now exercised J°"J^ °* ^™" 
 
 and now exor- 
 
 {(j) 2 Black. Comm. 495. (i) Ante, p. 237, et seq. 
 
 (h) Ibid. {k) Ante, p. 237.
 
 342 
 
 What 7nay he done, before grant of Letters. [Pt. i. Bk. v. 
 
 cised by Pro- by the Probata Division of the High Court of Justice to 
 
 I'Ute Division ^ • ^ • n tiitt i 7\ 
 
 of High Court, 'whicb it was Iranslerrecl by the Judicature Act (t). 
 
 Generally an 
 administrator 
 cannot act 
 before letters : 
 
 Le cannot 
 commerce 
 action at law 
 
 although he 
 may commence 
 action in 
 Chancery 
 Division . 
 
 SECTION II. 
 
 What may he done hy an Administrator he/ore Letters of 
 Administration are granted. 
 
 It has been shown that an executor may perform most of 
 the acts appertaining to his office, before probate (???). But 
 with respect to an administrator, the general rule is, that a 
 party entitled to administration can do nothing as adminis- 
 trator before letters of administration are granted to him ; 
 inasmuch as he derives his authority, not like an executor 
 from the Will, but entirely from the appointment of the 
 Court (n). 
 
 Thus it was always held at Law that an executor might 
 commence an action before proving the Will, and it was 
 sufficient if he had probate in time for his declaration (o), 
 yet letters of administration must issue before the commence- 
 ment of a suit at Law by an administrator ; for he has no 
 right of action until he has obtained them [p). 
 
 In Chancery, however, the practice was not quite so strict^ 
 for a bill in Chancery could be filed before a plaintiff had 
 taken out letters of administration and it was sufficient to 
 have them at the hearing [q), but the bill had to allege that 
 
 {I) 36 & 37 Vict. c. 66, sect. 16. 
 See ante, p. 239. 
 
 {m) Ante, p. 249, et seq. 
 
 (n) Wankford v. Wankford, 1 
 Salk. 301, by Powys, J. 
 
 (o) See ante, pp. 254, 255. 
 
 {p) Martin r. Fuller, Comb. 
 371. Com. Dig. Admon. B. 9 ; 
 1 Salk. 303, by Powell, J. Wool- 
 dridge v. Bishop, 7 B. & C. 406. 
 An administrator with the Will 
 annexed has no more right in this 
 respect than any other adminis- 
 trator. Phillips V. Hartley, 3 C. 
 
 & P. 121. 
 
 (q) Fell V. Lutwidge, Barnard. 
 Chanc. Cas. 320, by Lord Hard- 
 wicke, who observed that it was 
 different at law. Horner v. Hor- 
 ner, 23 L. J. Ch. 10. See also as 
 to the relation of the letters 
 obtained after bill filed. Hum- 
 phreys i'. Humphreys, 3 P. Wms. 
 351 ; Bateman v. Margerison, 6 
 Hare, 496. But see Simons v. 
 Milman, 2 Sim. 241 ; Jones v. 
 Howells, 2 Hare, 353. See ante, 
 p. 256, note (5).
 
 Ch. I. § II.] Whatrmay he done before grant of Letters. 343 
 
 they were already obtained (/•)• This difierence of practice 
 seems to remain notwithstanding the Judicature Act. 
 
 So if an executor releases before probate, such act will bind A release i.y an 
 him after he has proved the Will (s) ; but if a man releases ]jefoie letters 
 and afterwards takes out letters of administration, it will not "°*' bii'^'n='- 
 bar him : for the right was not in him at the time of the 
 release {t). 
 
 So though an executor may assign a term for years of the Assignment or 
 testator, before probate, yet an assignment by an adminis- administrator 
 trator before letters is, it seems, of no validity (»). Again, ^^efore letters 
 if the deceased was a tenant from year to year, a surrender of 
 this leasehold interest cannot be made by a next of kin before 
 taking out letters of administration (r). 
 
 In Doe V. Glenn {x), the lessee of premises, under a con- 
 dition of re-entry if the rent should be in arrear twenty-eight 
 days, died in bad circumstances : his brother administered 
 de son tort ; and agreed with the landlord to give him pos- 
 session, and suffer the lease to be cancelled, on his abandon- 
 ing the rent, which was twenty- eight days in arrear : The 
 brother afterwards took out letters of administration : And 
 it was held, that his agreement as administrator de son tort 
 did not conclude him as rightful administrator, nor give a 
 right of possession to the landlord who had entered under 
 the agreement, but who had not made demand of the rent 
 according to the common law, or proceeded by ejectment 
 according to stat. 4 Geo. II. c. 28. 
 
 Accordingly it was held in a subsequent case (//), that an 
 administrator was not estopped by a mortgage he had made of 
 the premises in dispute at a time prior to his having become 
 administrator. 
 
 (r) Humphreys v. Ingledon, 1 87, ^^c Parke, B. 
 
 P. Wms. 753 ; Moses v. Levi, [v) Eex v. Great Glenn (Inhabi- 
 
 3 Y. & Coll. 359, 366. tants of), 5 B. & Adol. 188. 
 
 (s) Ante, p. 250. (x) 1 Adol. & Ell. 49. 
 
 (() Middleton's case, 5 Co. 28, h. (y) Metiers v. Brown, 1 Hurls. 
 
 {u) 3 Preston on Abst. 146. See & C. 686. 
 Bacon v. Simpfion, 3 Mees. & W.
 
 344 
 
 What may he done before gixmt of Letters. [Pt. i. Bk. v. 
 
 Notice to be 
 given as ad- 
 ministrator not 
 eflectually 
 given before 
 letters. 
 
 Instances of 
 valid acts, 
 though done 
 before admin- 
 istration 
 granted : 
 
 Where it bad been agreed by articles of partnership that 
 the executor or administrator of a deceased partner should 
 have the option of succeeding to the share of the deceased in 
 the partnership business and effects on giving notice within 
 three calendar months of the decease to the surviving 
 partners, it was held that a notice given by the administrator 
 of the deceased partner within the three months of his death, 
 but before taking out letters of administration, was not an 
 effectual notice within the meaning of the indenture, for that 
 the letters of administration had not relation back to the act 
 of giving notice, so as to clothe him with the character of 
 administrator at that time {z). 
 
 Yet cases may certainly be found, where the letters of 
 administration have been held to have a relation to the death 
 of the intestate, so as to give a validity to acts done before the 
 letters were obtained. Thus if a man takes the goods of 
 the intestate as executor de son tort, and sells them, and 
 afterwards obtains letters of administration, it seems the sale 
 is good (a). So in Whitehally. Squire {h), where an intestate 
 had delivered to the defendant a horse to depasture, and the 
 plaintiff, before administration granted, desired the defendant 
 to bury the intestate decently, who thereupon bui'ied him, 
 and the plaintiff agreed that the defendant should keep the 
 horse in part satisfaction of the charges ; and afterwards the 
 plaintiff took administration, and brought trover for the 
 horse ; it was held by Dolben and Eyre, Justices (Holt, C. J., 
 dissentiente,) that the plaintiff was bound by the agreement, 
 and could not maintain the action. The principle, however, 
 of this decision appears to have been, that the plaintiff, being 
 a yarticeijs criininis in the very act of which he complained, 
 should not be permitted to recover upon it against the person 
 with whom he colluded (c). 
 
 {z) Holland v. King, 6 C. B. 
 727. 
 
 (a) Kenrick v. Burgess, Moor. 
 126. Godolph. Pt. 2, c. 8, s. 5, 
 
 L. R. 1 Eq. 90, 100, ante, p. 215, 
 note (n). 
 
 {h) 1 Salk. 295. 
 
 (c) Mountford v. Gibson, 4 East, 
 
 p. 99, 4lh edition. Hill v. Curtis, 446, by Lord Ellenborougli. In
 
 Ch. I. § II.] What may he done before grant of Letters. 345 
 
 Other instances, of the relation of the letters of adminis- 
 tration to the death of the intestate, will be found in a 
 subsequent part of this Treatise (cZ). 
 
 But it may here be observed, that it has been lately laid only when done 
 
 . . 1 • 1 11^°^' *'l^^ benefit 
 
 down that such relation exists only m those cases where the of the estate. 
 act done is for the benefit of the estate : And accordingly, in 
 a case where the widow of an intestate had remained in the 
 possession of her husband's property for some time after his 
 decease, and the intestate's son had not interfered in any 
 way with the property, which was seized under a writ oifi.fa. 
 issued against the widow, and the son afterwards took out 
 administration, it was held that there was no evidence from 
 which the administrator's assent to the widow's taking the 
 property could be implied : And by Parke, B., even if there 
 had been, the estate was not bound by it, as the act to which 
 the assent was given did not benefit the estate {e). 
 
 Where a question was pending in the Ecclesiastical Court, Security de- 
 
 ■^ 1 o ... nianded by the 
 
 as to a party's right to a grant of letters of administration, Ecclesiastical 
 and such party possessed himself of a portion of the goods of parties possess- 
 the deceased before he had established his title. Sir G. Lee f f *^^® f ?*^ 
 
 beiore aclminis- 
 
 decreed that he should give such security for the safety of the tiation 
 
 granted . 
 
 goods as the Court should approve {j ). 
 
 Stewart v. Edmonds, Sittings after Excli. 305, by Parke, B. See also 
 
 Hil. Term, 1828, coram Abbott, Parsons v. Mayesden, 1 Freem. 
 
 C. J., the intestate had sent some 152, where it was laid down, that 
 
 plate to the defendant, a silver- if a man takes the goods of the 
 
 smith, for safe custody, and was deceased by the consent of him to 
 
 at the same time indebted to him whom administration is afterwards 
 
 in a sum exceeding the value of granted, this is no defence, if he is 
 
 the plate : The plaintiff, after the sued as executor de son tort. But 
 
 death of the intestate, and before see Hill v. Curtis, uU svp. 
 he obtained letters of adminis- {d) Post, Pt. ii. Bk. i. Ch. i. 
 
 tration, assented to the defendant As to the right, founded on mere 
 
 retaining the plate, in satisfaction possession, to bring actions against 
 
 of his debt ; he afterwards took wrong-doers, without producing 
 
 out administration, and brought letters of administration, see ante, 
 
 trover for the plate : For the p. 253. 
 
 defendant, Whitehall v. Squire (c) Morgan v. Thomas, 8 Exch. 
 
 was cited ; but the C. J. held that 302. 
 
 the assent was not binding upon (/) Jones v. Yarnold, 2 Cas. 
 
 the administrator. See further, temp. Lee, 570. 
 Accord. Morgan v. Thomas, 8
 
 346 
 
 CHAPTER THE SECOND. 
 
 OF THE GRANT OF GENERAL ORIGINAL ADMINISTRATION IN 
 CASES OF TOTAL INTESTACY. 
 
 Stat. 31 Edw. 
 III., Stat. 1, 
 c. 11, adminis- 
 tration to be 
 granted to the 
 near.st and 
 most lawful 
 friends : 
 
 Stat. 21 Hen. 
 
 viir. c. 5, 
 
 s. 3, to the 
 widow or next 
 of kin, or both 
 at discretion. 
 
 Exclusive right 
 of the husband 
 to be the wife's 
 adtninistrator : 
 
 SECTION I. 
 To whom General Administration is to he granted. 
 
 XT has already appeared that the stat. 31 Edw. III. stat. 1, 
 c. 11, provides, that, in cases of intestacy, " the Ordinaries 
 shall depute of the next and most lawful friends of the dead 
 person intestate to administer his goods" (a). The power of 
 the Ecclesiastical Judge was a little more enlarged by the 
 statute 21 Hen. VHI. c. 5, s. 3, which provides, that in case 
 any person die intestate, or that the executors named in any 
 testament refuse to prove it, the Ordinary shall grant admi- 
 nistration, " to the widow of the deceased, or to the next of 
 his kin, or to both, as by the discretion of the same Ordinary 
 shall be thought good : " and the same section goes on to 
 enact, that " where divers persons claim the administration 
 as next of kin, which be equal in degree of kindred to the 
 testator, or person deceased, and where any person only 
 desireth the administration, as next of kin, where indeed 
 divers persons be in equality of kindred as is aforesaid, that 
 in every such case the Ordinary to be at his election and 
 liberty to accept any one or more making request where 
 divers do require the administration." 
 
 Before inquiring into the rights of those persons expressly 
 pointed out in the above statutes, it is proper to consider the 
 right of the husband to be the administrator of his wife. 
 This right belongs to the husband exclusively of all other 
 persons (h), and the Ordinary has no power or election to 
 
 (a) Ante, p. 341. 
 
 (/») Humphrey v. Bullen, 1 Atk. 459.
 
 Ch. II. § I.] Of Gcnoxd Letters of Administration. 347 
 
 grant it to any other (^0 . The foundation of this claim has 
 been variously stated : By some it is said to be derived from 
 the statute of 31 Edw. III. on the ground of the husband's 
 being " the next and most lawful friend " of his wife ((/) : 
 while there are other authorities, which insist that the hus- 
 band is entitled at common law, jure mariti, and indepen- 
 dently of the statutes (e). But the right, however founded, 
 is now unquestionable ; and is expressly confirmed by the 
 statute 29 Car. II. c. 3, which enacts, that the Statute of 29 Car. II., 
 Distributions (22 & 23 Car. II. c. 10,) " shall not extend to '' 
 the estates of femes covert that shall die intestate, but that 
 tJieir husbands may demand and have administration of their 
 rights, credits, and other personal estates, and recover and 
 enjoy the same as they might have done before the making 
 of the said Act." 
 
 The Married Women's Property Act, 1882, has not altered unaltered by 
 the devolution of the undisposed of separate personalty of a Women's Pro- 
 married woman. Accordingly, on the death of a married ?g^9.^^*' 
 woman without disposing of her separate personalty, the 
 quality of separate property ceases, and the right of the 
 husband to such undisposed of personalty accrues as if the 
 separate use had never existed. 
 
 Thus, where a married woman, who had a power of ap- 
 pointment over certain trust funds, and was also possessed of 
 separate estate, her title to which had accrued before the 
 Married Women's Property Act, 1882, but including also a 
 considerable amount of savings of the income of such estate 
 accrued since the Act, died in 1887, having in the same year 
 made a Will, by which she exercised her power of appoint- 
 ment over the trust fund and appointed executors, but made 
 no disposition of her separate property, it was held that on 
 
 (c) Sir George Sand's case, 3 ministration was not necessary to 
 
 Salk. 22. enable the husband to take his 
 
 {d) 3 Salk. 22. Elliott v. Gurr, deceased wife's chattels or chattels 
 
 2 Phillim. 19 ; and it would real though it was necessary to 
 
 seem that this is the right view. enable him to take her outstanding 
 
 Fettiplace v. Gorges, 1 Ves. 46 ; choses in action. 
 
 Re Laml)ert'8 Estate, 39 C. D. 626. (e) Com. Dig. Administrator 
 
 It is to be remembered that ad- (B. 6). Wattu. Watt, 3 Ves. 247.
 
 MS 
 
 Of General Letters of Administration. [Pt. i. Bk. v 
 
 where the mar- 
 riage was void- 
 able the 
 husband is 
 entitled to 
 administra- 
 tion : 
 
 sccus, where it 
 was void. 
 
 Administra- 
 tion to wife 
 dying after a 
 protection 
 order. 
 
 the death of the testatrix the title of her hushand to her 
 undisposed of separate estate accrued, aud that the executors 
 of her Will hecame trustees for him, and not for the next of 
 kin of the testatrix (/). 
 
 The separate use, whether created by Statute or settlement, 
 is exhausted when the wife dies without making a disposi- 
 tion (^r). 
 
 This right of administration to the wife is not an eccle- 
 siastical, but a civil right of the husband, though it is a right 
 to be administered in the Court of Probate {h). 
 
 Though a marriage be voidable, by reason of some canoni- 
 cal disability {e. g. on account of corporal infirmities and 
 formerly as being within the prohibited degrees of consan- 
 guinity or affinity) yet the husband is entitled to the adminis- 
 tration of the wife, unless sentence of nullity was declared 
 before her death (i). But where the marriage took place 
 under one of the civil disabilities (such as prior marriage, want 
 of age, idiotcy, and the like, and since 5 & 6 Will. IV. c. 54, 
 by being within the prohibited degrees of consanguinity or 
 affinity), the contract of marriage is absolutely void ab initio; 
 and consequently the husband cannot be entitled to take ad- 
 ministration. Thus, where it appeared that the woman was 
 of unsound mind at the time of the celebration of the mar- 
 riage, the husband was refused administration of her efi"ects, 
 and condemned in costs {k). 
 
 Where a wife, having been deserted by her husband, has 
 obtained a protection order, uuder stat. 20 & 21 Vict. c. 85, 
 s. 21 (/), and afterwards dies in the lifetime of her husband, 
 intestate, the Court will decree administration, limited to such 
 personal property as she acquired since the desertion (without 
 specifying of what that property consisted), to the next of kin 
 of the wife {m). 
 
 if) Ee Lambert's E.state, 39 (i) Elliott v. Guit, 2 Phillim. 
 
 C. D. 626. 19. 
 
 {g) Cooper v. Macdonald, 7 C. D. (k) Browuing v. Eeane, 2 Phil- 
 
 288. lim. 69. 
 
 (/i) By Sir J. Nicholl, in Elliott (I) See ante, p. 55. 
 
 v. Gurr, 2 Phillim. 19, £0. (m) In the goods of TVorman
 
 Cli. II. § I.] To ivhom they should he grmited. 349 
 
 Upon the bankruptcy of the husband bis right to administer Husband a 
 to his wife's estate is not such a right as will vest in the '^^ ^ ' 
 trustee under his bankruptcy (m) . 
 
 Where a husband agreed by deed of separation that if his Administra- 
 wife died intestate her next of kin should be entitled to her nylnXpart 
 property, and she died intestate, leaving separate property of ^'■°™ husband 
 which she had become possessed by virtue of the deed, the tion deed. 
 Court, notwithstanding the husband objected, granted letters 
 of administration to her father limited to that property (o). 
 
 It should seem that a man convicted of bigamy, in respect Husband cou- 
 of his marriage with the intestate, may, nevertheless, pro- bigamy°- 
 pound his interest as the lawful husband of the deceased, 
 in a suit touching the administration of her effects in the 
 Ecclesiastical Court : and may succeed in such suit on proof 
 shown of his not having been guilty of the crime, notwith- 
 standing his said conviction be pleaded and proved {jp). 
 
 In case the wife died intestate, and afterwards the husband by the old 
 died without having taken out administration to her, the husband dieir 
 Ecclesiastical Court at one time considered itself bound by before he 
 
 '' obtained ad- 
 
 the statute to grant administration to the next of kin of the ministration, 
 
 .. , ,,,1 ,,• P.Tii 1 , s T^ it w^s granted 
 
 wiie, and not to the representatives oi the husband {q). But to the wife's 
 such administrator was considered in equity as a trustee for ^^^^ °^ ^'" 
 the representatives of the husband (r). 
 
 1 Sw. & Tr. 513. See also In the c. 85, sect. 21, 
 
 goods of Faraday, 2 Sw. & Tr. 369 ; {n) In the goods of Turner, 12 
 
 In the goods of Weir, 2 Sw. & Tr. P. D. 18. 
 
 451 ; In the goods of Stephenson, (o) Allen v. Humphry s, 8 P. D, 
 
 L. K. 1 P. & D. 289. It is 16. See also In the goods of 
 
 necessary, generally speaking, that Moore [1891] P. 299. 
 
 the husband should be cited : In (j:)) Wilkinson v. Gordon, 2 Add. 
 
 the goods of Brighton, 34 L. J., 152. See 1 Phillips on Evidence, 
 
 P. & M. 55. He has no right to 336 ct seq., 7th edition, 
 
 the administration if the marriage {q) Reece v, Strafford, 1 Hagg. 
 
 has been dissolved on the ground 347. See also the other cases 
 
 of his adultery and desertion. In reported in the Appendix to 2 
 
 the goods of Hay, L. R. 1 P. & D. Haggard. 
 
 51 ; 35 L. J., P. & M. 3. Nor (r) Cart v. Rees, cited in Squib 
 it seems, in cases where the wife v. Wyn, 1 P. Wms. 381. Hum- 
 Las obtained a decree of judicial phrey v, Bullen, 1 Atk. 458. 
 separation. See 20 & 21 Vict.
 
 350 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 but by the 
 modern prac- 
 tice, it sball 
 be granted to 
 tLe husband's 
 representative, 
 unless the pro- 
 perty belongs 
 to the wife's 
 next of kin ; 
 
 For according to the course of decisions of Courts of Equity, 
 and the practice of the Ecclesiastical Courts, and of the Court 
 of Prohate, the title of the hushand to the undisposed of per- 
 sonalty of the wife has uniformly prevailed (s). 
 
 In the case of In the goods of Gill (t), Sir John Nicholl 
 adverted to the inconvenience of this rule of granting admin- 
 istration to those who have no beneficial interest, and its 
 defiance of all principles : and added that he felt inclined, if 
 the point should come before the Court in a contested form, 
 to send it up to the Court of Delegates for a deliberate recon- 
 sideration. If the persons, who, at the time of the wife's 
 death, were her next of kin, die before the grant of adminis- 
 tration, it has always been held that the Court may exercise 
 its discretion, and grant administration to the party who has 
 the interest (u). 
 
 And in a subsequent case (x) that learned Judge granted 
 administration de bonis non of a feme covert to the repre- 
 sentatives of the husband, an appearance having been entered, 
 and administration prayed by the next of kin of the wife, and 
 observed that he should have done the same if the husband 
 had not taken out administration, unless it could be shown 
 that he had not the interest, but that the property belonged 
 to the wife's next of kin : And the learned Judge desired that 
 it might be understood in the Registry that this was to be 
 the rule for the future, unless special cause to the contrary 
 be shown (y). And the course in the Courts now is in all 
 
 (s) Ee Lambert's Estate, 39 
 C. D. 626, 635. 
 
 {t) 1 Hagg. 341. 
 
 (u) lb., 341, 344. 
 
 (x) Fielder v. Hanger, 3 Hagg. 
 769. 
 
 {y) Administi-ation of the effects 
 of a former wife was refused to the 
 representatives of a second wife 
 who had taken out administration 
 to her husband, the next of kin of 
 he husband not having been cited : 
 
 In tlie goods of Sowerby, 2 Curt. 
 852. See In the goods of Bell, 
 1 Sw. & Tr. 288. If the husband's 
 representatives are several adminis- 
 trators, they must all join in 
 taking out the administration to 
 the wife ; for it is not the practice 
 to make a subsequent grant to one 
 alone of co-administrators : Secvs 
 as to co-executor : In the goods of 
 Nayler, 2 Eobert. 409.
 
 Ch. II, § I.] To whom they should he granted. 351 
 
 cases where the wife has predeceased her husband, to grant 
 to the representatives of the husband alone letters of adminis- 
 tration to the wife {z). But if the next of kin are entitled to 
 the beneficial interest (as by settlement), the administration 
 is still to be decreed to them ; because the principle is that 
 the grant ought to follow the interest {a). 
 
 It must be observed, however, that the husband's next of husband's 
 kin must constitute themselves his legal personal representa- must "first "con- 
 tives before they have any claim to administer to the wife's «*'"''ite them- 
 
 •^ •' selves Uis legal 
 
 estate (/;). personal repre- 
 
 The case of Gutteridge v. Stilwell (c), in which Lord 
 Brougham appears to have acted inconsistently with this 
 doctrine, must be considered overruled (d). 
 
 It appears to have been ruled in the Prerogative Court, husband and 
 that where the husband and wife are drowned in the same i^'thesamT 
 ship, they must be presumed to have perished at the same '^'"P- 
 moment unless proof can be obtained as to the exact time 
 of the death of either (e). At all events, in such cases, in 
 order to entitle the husband to the wife's property it must 
 be proved that he survived her ; and consequently the ad- 
 ministration thereof must be granted to her next of kin, if his 
 representative cannot give any such proof (/). 
 
 (,:;) Per Lord Hatlierley in it would follow from Lord 
 
 Partington v. Att.-Gen., L. K. Brougham's that even where an 
 
 4 H. L. 100, 109. executor had assented to a legacy 
 
 (a) In the goods of Pountney, he might still sue for the fund out 
 
 4 Hagg. 289. of which the legacy was to be paid 
 
 (6) In the goods of Crause, I on the strength of his legal title 
 
 Sw. & Tr. 146. Attorney-General without making the legatee a party 
 
 V. Partington, 3 Hurlst. & C. 193, which would in fact be adminis- 
 
 206 ; L. R., 4 H. L. 100. In the tering the fund in the absence of 
 
 goods of Harding, L. R., 2 P. & D. the owner. See also Pennington v. 
 
 394. See post, Pt. ii. Bk. iir. Buckley, 6 Hare, 459, by Wigram, 
 
 Ch. I. § III. V.-C. 
 
 (c) 1 M. & K. 486. (e) In the goods of Selwyn, 3 
 
 (d) Partington v. Att.-Gen., Hagg. 784. 1 Curt. 705. But see 
 L. R., 4 H, L. 100. See also Underwood v. Wing, 4 De G. M. 
 Loy V. Duckett, 1 Cr. & Ph. 312. & G. 633. Post, Pt. iii. Bk. in. 
 His lordship there said that Sir J. Ch. ii. § v. where this subject is 
 Leach's view was more correct more fully considered. 
 
 than Lord Brougham's, because (/) Satterthwaite v. Powell,
 
 352 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 In what cases 
 Lefove the 
 Married 
 Women's Pro- 
 perty Act, 
 1882, the Will 
 of the wife 
 might control 
 the husbaniVs 
 right to admin- 
 ister : 
 
 law since 
 Married 
 Women's Pro- 
 perty Act : 
 
 administration 
 where wife is 
 executrix of 
 another. 
 
 It has already appeared that in several cases, even hefore 
 the Married Women's Property Act, 1882, a feme covert 
 might make a Will : and it remains to consider to what 
 extent her Will operated as a har to the husband's right to 
 be her administrator. 
 
 In such cases the husband's right was wholly or partially 
 barred according to the extent of the power, or the husband's 
 agreement as the case might be. 
 
 Since the passing of the Married Women's Property Act, 
 1882, these authorities have become of no moment except in 
 cases excluded from the operation of that Act {g). As has 
 been pointed out, a grant of Probate of the Will of a married 
 woman is now unlimited, and there is no cceterorum grant {K). 
 
 If the wife be executrix to another, and dies intestate, 
 then, as to the goods which she had in that capacity, admi- 
 nistration must not be granted, generally speaking, to her 
 husband (?')• In fact, in this case, the administration is not 
 of the goods of the wife but de bonis non of her testator, cum 
 testamento annexo. Consequently, the administration must 
 be granted according to the rules established with respect to 
 that species of grant, which will be explained in the subse- 
 quent chapter {k). 
 
 Of the right of 
 the widow : 
 
 The Ordinary 
 may grant ad- 
 ministration 
 to her or next 
 of kin, or to 
 them jointly : 
 
 The subject now proceeds to the right of the widow and 
 next of kin under the statutes. And first, as to the right of 
 the widow, the stat. 21 Hen. VIII. c. 5, s. 3, directs that the 
 Ordinary shall grant administration "to the widow or the 
 next of kin or to both " at his discretion (/) : Therefore, 
 
 1 Ciirt. 705. In the goods of 
 Wheeler, 31 L. J., P. M. & A. 40. 
 Post, Pt. I. Bk. V. Ch. III. § I. 
 
 {g) For those cases see Williams 
 Exors., 8th Ed., pp. 420 and 421. 
 
 Qi) See ante, p. 323. 
 
 [i) Smith V. Jones, Bulstr. 45. 
 Jones V. Roe, W. Jones, 176. 
 Anon. 3 Salk. 21. 
 
 (/:) Sections 1, 2, 
 
 (Z) Sir C. Cresswell in the case 
 of In the goods of Bro^vning, 
 2 Sw. & Tr. 634, held that the 
 Court is precluded by this statute 
 from making a joint grant to a 
 widow and one of the persons 
 entitled in distribution (but not 
 next of kin), even with the con- 
 sent of the next of kin, and of 
 all the other persons entitled in
 
 oil. II. § I.] To ivhom they should he gi^anted. 353 
 
 Vthere it was moved for a mandamus to the official of the 
 Bishop of Gloucester to commit administration 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 kin (m). 
 
 The statute further directs the Ordinary, in his discretion, administration 
 to grant administration to both the widow and the next of toThem^botb^ 
 kin ; — and it has been held that the grant may be to them •1°^"*'^ °^ ^°^^ 
 
 " "^ separately : 
 
 both jointly, or both separately, by committing several 
 administrations of several parts of the goods of the in- 
 testate (/i). Thus in a case where a man died intestate, 
 leaving a wife and brother, the Ordinary granted the adminis- 
 tration of some particular debts to the brother, and of the 
 residue to the wife : And a mandamus was moved for, to 
 grant administration to the wife : But by the Court : The 
 Ordinary may grant administration to the brother as to part, 
 and to the wife for the rest ; in which case neither can 
 complain, since the Ordinary need not have granted any part 
 of the administration to the party compkining : But if the 
 intestate leave a bond of lOOZ., the Ordinary cannot grant 
 administration of 50Z. to one person and 50Z. to another, 
 because this is an entire thing (o). 
 
 But the Court prefers a sole to a joint administration (j;), the election of 
 
 the Court is in 
 favour of the 
 distribution, and that the 73rd {m) Anon., 1 Stra. 525. widow : 
 
 section of the Court of Probate {%) 1 Roll. Abr. tit. Exor. (D.) 
 
 Act, 1857 (see fost, pp. 383, 384), pi. I, p. 908. 4 Burn, E. L. 361, 
 
 did not, under the circumstances of Phillimore's edition, 
 the case, enable him to do so. But (o) Fawtry v. Fawtry, 1 Salk. 
 
 in a later case Sir J. P. Wilde 36. 
 
 held that the Court had power {-p) Where a joint grant is made 
 
 under sect. 73 of the Probate Act, to the widow and one of the next 
 
 1857, to make a joint grant of of kin, all the other next of kin 
 
 administration to the next of kin must consent that the grant shall 
 
 and to a person entitled in distribu- be so made. In the goods of 
 
 tion, the next of kin consenting to Newbold, L. R. 1 P. & D. 285. 
 
 the grant, and there being special But the consent of a minor of 
 
 circumstances rendering such joint twenty years and six months was 
 
 grant convenient. In the goods of acted upon in In the goods of 
 
 Grundy, L. R., 1 P. & D. 459. Dickinson [1891], P. 292. 
 W.E. — VOL. I. A A
 
 354 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 widow set 
 aside for good 
 cause : 
 
 a divorce 
 according to 
 foreign law 
 allowed in a 
 question of 
 granting ad- 
 ministration 
 to a second 
 wife ; 
 
 and never forces a joint one : and the election of the judge is 
 in fcivour of the widow, under ordinary circumstances {q). 
 But the Court has always held that administration may he 
 granted to the next of kin, and the widow be set aside upon 
 good cause (r) ; for instance, if she has barred herself of all 
 interest in her husband's personal estate by her marriage 
 settlement (s), or where she is a lunatic {t), or where she has- 
 eloped from her husband, or cohabited in his lifetime with 
 another man {u), or has lived separate from her husband (x). 
 But the circumstance of the wife having married again is no 
 valid objection (?/). However, if the deceased left children, 
 one of whom, supported by the rest, applies for administra- 
 tion, the second marriage muiht induce the Court to prefer 
 the child {z). 
 
 Where the intestate had married a first wife in Denmark, 
 both parties being domiciled there, from whom he was divorced 
 by a contract of separation and other proceedings amounting 
 to a divorce a vinculo mairimonii according to the Danish 
 law, and then married a second wife ; such second wife was 
 
 [q) Stretch v. Pynn, 1 Cas. temp. 
 Lee, 30. Godtlard v. Goddard, 3 
 Phillim. 638. See also Atkinson 
 V. Barnard, 2 Phillim. 317. But 
 administration of the effects of a 
 domiciled Scotchman was granted 
 to the brother (the next of kin of 
 the deceased) without citing the 
 widow, a similar grant having 
 already been made in Scotland : 
 In the goods of Rogerson, 2 Curt. 
 656. 
 
 (r) See Accord. In the goods of 
 Anderson, 3 Sw. & Tr. 489. 
 
 (s) Walker v. Carless, 2 Cas. 
 temp. Lee, 560. 
 
 {t) In the goods of Williams, 
 3 Hagg. 217. In the goods of 
 Dunn, 5 Notes of Cas. 97. See, 
 however, Alford v. Alford, Dea. & 
 Sw. 322, where Sir J. Dodson held 
 
 the committee of a lunatic widow 
 entitled preferably, as the widow 
 herself would be, unless good 
 cause is shown by the next of 
 kin. 
 
 {u) Fleming v. Pelham, 3 Hagg. 
 217, note (6). Conyers v. Kitson, 
 3 Hagg. 556. It should be noticed 
 that where an application is mad^ 
 for a grant of administration to a 
 person other than the widow on 
 the ground of the widow's nii.s- 
 conduct, the Court will require the 
 widow to be cited. In the goods 
 of Middleton, 14 P. D. 23. 
 
 (x) Lambell v. Lambell, 3 Hagg. 
 568. See Chappell v. Chappell, 
 3 Curt. 429. 
 
 {y) Webb v. Needham, 1 Add. 
 494. 
 
 (~) Ibid. 496.
 
 Cli. II. § I.] To idiom they should be granted. 355 
 
 allowed by the Prerogative Court to take out administration 
 to the husband (a). 
 
 If a wife has been divorced a mensa et thoro, for adultery wife divorced 
 on her part, she forfeits, it should seem, her right to the </jo,.<,. 
 administration (h). 
 
 It now becomes necessary to inquire, who are the "next Of the right of 
 and most lawful friends," and the " next of kin," entitled to kin: 
 the grant of the administration under the statutes. 
 
 Lord Coke describes them to be, "the next of blood who Who are the 
 
 in PI 1 1 1 i> 1 next of kin 
 
 are not attamted oi treason, lelony, or have any other lawful entitled to al- 
 
 ,T^„T,;iU.rr " /^\ ministration 
 
 disability (C). ^ ^ ^ ^ under the 
 
 It may here be observed, that it is an established principle statutes. 
 in the Ecclesiastical Court, that the right to the administra- ,u^j|*t,ratton 
 tion of the effects of an intestate follows the right to the follows the 
 
 ° right to the 
 
 property in them (d). Whence it seems to follow, that all property. 
 the cases which have decided what persons are next of kin, so 
 as to be entitled to a share of the intestate's personal estate 
 under the Statute of Distribution, are authorities upon the 
 question, as to what parties are next of kin, so as to be 
 entitled to administration under the Statutes of Adminis- 
 tration. 
 
 It has been laid down, that the Statute of Distribution Construction of 
 
 1 / \ -KT Statute of Dis- 
 
 must be construed according to the common law {e). JNever- tribution by 
 
 theless, the more modern cases seem to have fully established "ecordlng^r 
 
 that its construction, as to the proximity of degrees of kindred '^^*'<^« o^ *^'vil 
 
 Law. 
 
 at least, shall be according to the rules of the civil law (/). 
 
 (a) Ryan v. Ryan, 2 Phillira. notice, pass over the widow who 
 
 332. has been legally separated from 
 
 (6) Pettifer v. James, Bunbury, her husband by reason of his 
 
 16. In the goods of Davies, 2 cruelty, in granting administration 
 
 Curt. 628. And as a divorced to his estate. In the goods of 
 
 wife has forfeited all interest in Ihler, L. R. 3 P. & D. 50. 
 
 the estate of the deceased, so there (c) Hensloe's case, 9 Co. 39, b. 
 
 is no necessity for citing her {d) By Sir John Nicholl, In the 
 
 before granting administration to goods of Gill, 1 Hagg. 342. 
 
 the next of kin. See In the goods (e) Blackborough v. Davie, 1 P. 
 
 of Nares, 13 P. D. 35. But the Wms. 50. 
 
 Court will not, at any rate without (/) Lock v. Lake, 2 Cas. temp. 
 
 A A 2
 
 356 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 Definition of 
 consanguinity. 
 
 Lineal con- 
 sanguinity. 
 
 Collateral con- 
 sanguinity. 
 
 Consanguinity, or kindred, is defined by the writers on 
 these subjects to be " vinculum jJersonarum ab eodem stipite 
 descendentium,^' the connection or relation of persons descended 
 from the same stock or common ancestor (g). The consan- 
 guinity is either lineal or collateral. 
 
 Lineal consanguinity is that which subsists between 
 persons, of whom one is descended in a direct line from the 
 other, as between the Propositus and his father, grandfather, 
 great-grandfather, and so upwards in the direct ascending line, 
 or between the Propositus and his son, grandson, great-grand- 
 son, and so downwards in 'the direct descending line. Every 
 generation, in this lineal direct consanguinity, constitutes a 
 difierent degree, reckoning either upwards or downwards : 
 The father of the Propositus is related to him in the first 
 degree, and so likewise is his son ; his grandsire and grand- 
 son in the second ; his great-grandsire and great-grandson 
 in the third. This is the only natural way of reckoning 
 the degrees in the direct line ; and therefore, universally 
 obtains, as well in the civil and canon, as in the common 
 law. This lineal consanguinity, it may be observed, falls 
 strictly within the definition of vinculum personarum ah 
 codem stipite descendentium ; since lineal relations are such 
 as descend one from the other, and both of course from the 
 same common ancestor i]i). 
 
 Collateral kindred answers to the same description : col- 
 lateral relations agreeing with the lineal in this, that they 
 descend from the same stock or ancestor ; but diflfering in 
 this, that they do not descend one from the other. Collateral 
 kinsmen are such, then, as literally spring from one and 
 the same ancestor who is the stirps, or root, the stipes, 
 trunk, or common stock, from whence these relations are 
 branched out. As if John Stiles has two sous, who have 
 each a numerous issue ; both these issue are lineally 
 descended from John Stiles as their common ancestor : and 
 
 I 
 
 Lee, 420. 4 Burn, E. L. 543, 
 Phillimore's edition. 
 
 {g) 2 Black. Conim. 203. 
 {h) Ibid.
 
 Cli. II. § I.] To ivhom they slioidd he granted. 
 
 357 
 
 they are collateral kinsmen to each other, because they are 
 all descended from this common ancestor, and all have a 
 portion of his blood in their veins, which denominates them 
 consanrjuineos (i). 
 
 It must be carefully remembered, that the very being of 
 collateral consanguinity consists in this descent from one 
 and the same common ancestor. Thus Titius and his brother 
 are related ; why? because both are derived from one father : 
 Titius and his first cousin are related ; why ? because both 
 are descended from the same grandfather ; and his second 
 cousin's claim to consanguinity is this : that they are both 
 derived from one and the same great-grandfather. In short, 
 as many ancestors as a man has, so many common stocks he 
 has, from which collateral kinsmen may be derived. And 
 as we are taught by Holy Writ, that there is one couple of 
 ancestors belonging to us all from whom the whole race 
 of mankind is descended, the obvious and undeniable con- 
 sequence is, that all men are in some degree related to each 
 other (k) . 
 
 The mode of calculating the degrees in the collateral line Mode of calcu- 
 
 » .. 1 ,^ ii?i' lating degrees 
 
 for the purpose oi ascertaining who are the next ot kin, so as of consan- 
 to be entitled to administration, conforms, as it has been foi\^tg^.a\°iiQe 
 above observed, to that of the civil law, and is as follows : 
 to count upwards from either of the parties related to the 
 common stock, and then downwards again to the other, 
 reckoning a degree for each person, both ascending and 
 descending (l) ; or, in other words, to take the sum of the 
 degrees in both lines to the common ancestor (w). 
 
 {{) 2 Black. Comm. 204. degree the two persons, or the 
 (k) 2 Black. Comm. 205. more remote of them, is distant 
 {I) 2 Black. Comm. 207. Toller, from the common ancestor, that is 
 88. the degree in which they are re- 
 (m) Ibid, and Mr. Christian's lated to each other. It is ohvious, 
 note to 2 Black. 207. According that the degrees by this calcula- 
 te the canon law, the mode of tion are fewer than by the mode 
 computation is to begin at the of the civilians : And Sir J. Jekyll, 
 common ancestor, and reckon in Free. Chanc. 5!J3, and Lord 
 downwards, and in wiiatsoever Ilardwicke, in 1 Ves. Sen. 335,
 
 358 Of General Letters of Adminlstmtlou. [Pt. i. Bk. v. 
 
 The Propositus and liis cousin-german are related in the 
 fourth degree — hecause, following the rule of computation, 
 from the Propositus ascending to his father, is one degree : 
 from him to the common ancestor, the grandfather, two : then, 
 descending from the grandfather to the uncle, three : and from 
 the uncle to the cousin-german, four. Again, the second 
 cousin of the Propositus is related in the sixth degree ; be- 
 cause, from the Propositus, ascending to his father is one 
 degree ; from his father to his grandfather, two ; from his 
 grandfather to his great-grandfather, the common ancestor, 
 three : then, descending, from the great-grandfather to the 
 great-uncle of the Propositus, four ; from the great uncle to 
 the great-uncle's son, five ; from his great uncle's son to his 
 second cousin, six. — It will be observed, that kindred are found 
 distant from the Propositus by an equal number of degrees, 
 although they are relations to him of very different denomina- 
 tions. Thus, a grand-daughter of the sister, and a daughter 
 of the intestate's aunt {I.e. a great-niece and a first cousin), 
 are in equal degree, being each four degrees removed (m). 
 
 In the further consideration of this mode of computing 
 proximity of kindred, and the rights to administration derived 
 from it, several remarkable distinctions may be observed, with 
 reference to the corresponding rules of the common law, 
 respecting succession to inheritances. 
 Relations by Ist. Relations by the father's side and the mother's side 
 
 mother's side . ,, . ^ ^ ijii> n 
 
 equally entitled are in equal degree ot kindred ; and, therefore, equally 
 
 r til rt"^^ °^ entitled to administration : for, in this respect, dignity of 
 
 blood gives no preference (o). Hence it may happen that 
 
 relations are distant from the intestate by an equal number of 
 
 attribute the establisliinent of the removed is in the same degree as 
 
 mode of canonists to this circum- a second cousin ; for they are both 
 
 stance ; inasmuch as the nearer in the sixth degree of consangui- 
 
 they brought the relation, the nity : Silcox v. Bell, 1 Sim. & Stu. 
 
 greater was their trade of dispen- 301. Lock v. Lake, 2 Cas. temp, 
 
 sations of marriage. Lee, 42L 
 
 {n) Thomas v. Ketteriche, 1 Ves. (o) Moor v. Barham, cited in 
 
 Sen. C33. Thirt v. Robinson, cited Blackborough v. Davis, 1 P. Wms. 
 
 Ambl. 192. So a first cousin twice 53.
 
 Ch. II. § I.] To ivliom they should be granted. 359 
 
 degrees, and equally entitled to the administration of his 
 effects, who are no relations at all to each other. 
 
 2ndly. The half-blood is admitted to administration as well Half-blood 
 as the whole ( p) ; for they are kindred of the intestate, and 
 liave been excluded from the inheritance of land only on feudal 
 reasons : Therefore, the brother of the half-blood shall exclude 
 the uncle of the whole blood {q) ; and the Ordinary may grant 
 administration to the sister of the half or the brother of the 
 whole blood, at his discretion (r). 
 
 Srdly. As younger children must stand in the same degree Primogeniture 
 ■of kindred as the eldest, primogeniture can give no right to fo^^reference! 
 preference in the grant of administration (s). 
 
 4thly. The right to administration will follow the proximity The rights of 
 of kindred, though ascendant : and, therefore, when a child 
 dies intestate, without wife or child, leaving a father, the 
 father is entitled to the administration of the personal effects of the father : 
 of the intestate as next of kin, exclusive of all others {t). 
 Indeed, anciently, that is, in the reign of Henry I., a sur- 
 Tiving father could have taken even the real estate of his 
 deceased child (?/) . But this law of succession was altered 
 soon afterwards ; for we find by Glanville, that in the time 
 of King Henry II. the father could not take the real estate 
 of his deceased child, the inheritance being then carried 
 over to the collateral line : and it was subsequently held an 
 inviolable maxim, that an inheritance could not ascend : But 
 this alteration of the law never extended to personal estate (.r). 
 So with respect to the mother, if a child dies intestate with- of the mother : 
 out a wife, child, or father, the mother is entitled to adminis- 
 tration {y) : and before the statute of 1 Jac. II. c. 17, she 
 
 {])) Smith V. Tracey, 1 Ventr. [t) RatcliftVs case, 3 Co. 40, a. 
 
 323. (m) Blackborongh v. Davis, 1 P. 
 
 {q) Collingwood v. Pace, I Ventr. Wms. 50. 
 424. {x) 1 P. Wms. 51. And now, 
 
 (r) Brown v. Wood, Aleyn, 36. Ly stat. 3 & 4 Will. IV. c. 106, s. 6, 
 
 2 Black. Comm. 505. But see every lineal ancestor shall be 
 
 post, p. 363. cai:)able of being heir to any of his 
 
 (s) Warwick v. Greville, 1 Phil- issue. 
 lim. 124 ; but see 'pod, p. 363. {y) Ratcliffe's ca^e, 3 Co. 40, a,
 
 360 
 
 gi-amlfatlicr 
 preferred to 
 the uncle. 
 
 Females 
 equally en- 
 titled with 
 males, at the 
 discretion of 
 the Court. 
 
 Exceptions in 
 our law to the 
 niles of 
 proximity of 
 blood : 
 
 Children of 
 intestate pre- 
 ferred to his 
 parents : 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 could claim as next of kin the whole personal estate ; but by 
 that statute, every brother and sister shall have an equal 
 share with her {z). Again, if a man dies intestate, leaving 
 no nearer relations than a grandfather or grandmother, and 
 an uncle or aunt, the grandfather or grandmother, being in 
 the second degree, though ascendant, will be entitled to 
 administration to the exclusion of the uncle or aunt, who are 
 related only in the third degree {a). So a great-grandmother 
 is equally entitled as an aunt {h). 
 
 However, though the Ecclesiastical Law of England 
 acknowledges the rights of ascendants generally, yet it does- 
 not recognise them to the extent of the civil law, according 
 to which, ascendants, of whatever degree, shall be preferred 
 before all collaterals, except in the case of brothers and sisters. 
 But our law prefers the next of kin, though collateral, before 
 one, who, though lineal, is more remote (c). 
 
 5thly. With respect to the right to administration, those 
 in equal degree are equally entitled, subject to the discre- 
 tionary election of the Court, whether males or females {d). 
 The preference of males to females, which exists in the suc- 
 cession to inheritances, seems to have arisen entirely from 
 the feudal law ; and has never been applied to rights respect- 
 ing personal estate (e). 
 
 It remains to notice certain exceptions to the rule of com- 
 putation, above stated, of the proximity of kindred and conse- 
 quent right to administration. 
 
 1st. The parents of an intestate are as near akin to him 
 as his children ; for they are both in the first degree : but in 
 
 I 
 
 where tlie well-known case of the 
 Duchess of Suffolk, Bro. Ailnior. 
 ]A. 47, was denied. 
 
 {^ See Ivfra, Pt. iii. Bk.iv. Ch. i. 
 § IV. 
 
 {a) Mentney v. Petty, Prec. 
 Chanc. 593. Blackborough v. 
 Davis, 1 P. Wms. 41. 
 
 Q)) Burton r. Sharp, cited 
 
 in 1 Lord Eaym. 68G. Lutw. 
 1055. 
 
 (c) 1 P. Wms. 51, by Lord Holt. 
 Stanley r. Stanley, 1 Atk. 458, by 
 Lord Hardwicke. 
 
 (f?) Brown v. Wood, Aleyn, ,36. 
 S. C. Style, 74. 
 
 (e) But see post, p. 363.
 
 Ch. II. § I.] To icliom they should he, (jrantcd. 361 
 
 our law children are allowed the preference (/), and so are 
 their lineal descendants to the remotest degree {(j). 
 
 2nd. Where the nearest relations according to the above Brother to 
 computation, are a grandfather or grandmother, and brothers ^'''^" ^ ^^' 
 or sisters of the intestate, although these are all related in 
 the second degree, yet the latter are entitled to the adminis- 
 tration to the exclusion of the former Qi). 
 
 To recapitulate, in the first place the children, and their Recapitula- 
 lineal descendants to the remotest degree : and on failure of ^^^^' 
 children, the parents of the deceased are entitled to the 
 administration : then follow brothers and sisters, then grand- 
 fathers and grandmothers, then uncles or nephews, great- 
 grandfathers and great-grandmothers, and lastly cousins (/). 
 A more particular discussion of some parts of the present 
 subject will be found in a subsequent part of this Treatise, 
 where the rights of the next of kin of an intestate, under the 
 Statute of Distributions, are considered {k). 
 
 If the sole next of kin is a married woman, and renounces, Right of hus- 
 the grant is made to the husband : — for he has an interest, orkin°who^ 
 and the grant must follow the interest, and the wife cannot, renounces, 
 by renouncing, deprive her husband of his right to the 
 grant {I). 
 
 Where two parties contest the right to administration Parties con- 
 before any grant has been made, both are to propound their nVhtTo^ad- 
 interests, and to proceed vari passu : and this whether the ministration 
 
 before any 
 
 mutual interests are denied, or whether an interest is denied grant, must 
 and a Will opposed : nor does the rule vary, whether the ^ass^L 
 asserted next of kin are in the same or different degrees of 
 
 (/) 2 Black. Comm. 504. But Ambl. 192. 
 
 by this preference it is not to be (h) Evelyn v. Evelyn, 3 Atk. 
 
 understood that they are not con- 762. 
 
 sidered as perfectly equal in degree (i) 2 Black. Comm. 505. 
 
 of proximity : Witliy v. Mangles, (/;;) Post, Pt. III. Bk. iv. Ch. i. 
 
 4 Beav. 358. S. C. in Dom. Proc. § iv. 
 
 10 CI. & Fin. 215. (/) Haynes v. Matthews, 1 Sw. 
 
 {g) Carter v. Crawley, Sir T. & Tr. 460. Wenham v. Wenham, 
 
 Raym. 500. Evelyn v. Evelyn, 6 Notes of Cases, 17.
 
 362 
 
 Of General Letters of Admiuistrat'ion. [Pt. i. Bk. v. 
 
 relationship (w). In Waller v. Heseltine (n) ; the Prerogative 
 Court decided that the question concerning a Will and the 
 question of interest between the Crown and the next of kin, 
 must all cfo on toG:ether. 
 
 "Where there 
 are several 
 next of kin in 
 equal degree : 
 
 the Court 
 grants admin- 
 istration to 
 liim whom the 
 majority of 
 l^u-ties inte- 
 rested desire : 
 
 Where there are several persons standing in the same 
 degree of kindred to the intestate, the statute, we have 
 seen, gives the Ordinary his election to accept any one or 
 more of such persons (o). It remains to inquire by 
 what principles and rules of practice his discretion, in 
 making such election, has been guided in the Ecclesiastical 
 Court. 
 
 The Court have considered it their first duty to place the 
 administration in the hands of that person who is likely best 
 to convert it to the advantage of those who have claims, 
 either in paying the creditors, or in making distribution : 
 the primary object being the interest of the estate (j))- But 
 where there is no material objection on one hand, or reasons 
 for preference on the other, the Court, in its discretion, puts 
 the administration into the hands of that person, amongst 
 those of the same degree of kindred, to whom the majority 
 of parties interested are desirous of entrusting the estate (q). 
 On this principle, in a case as early as 1678 (r), it was 
 
 (»i) Dabbs r. Chisman, 1 Phillini. 
 159. It is otherwise when a party 
 is in the possession of the ad- 
 ministration. See post, p. 378, 
 note (i). 
 
 (n) Cited by Sir John Nicholl in 
 1 Phillim. 159 ; reported 1 Phillim. 
 170. 
 
 (o) By rnle 28 P. R. 1862 (Non- 
 contentious) : " Where administra- 
 tion 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 regis- 
 trars may require proof by affida- 
 vit or statutory declaration that 
 
 notice of such application has 
 been given to such other next of 
 kin." 
 
 ('2^) Warwick v. GrevQle, 1 PhU. 
 125. 
 
 (q) Elwes V. Elwes, 2 Cas. temp. 
 Lee, 573. Budd v. Silver, 2 Phil- 
 lim. 115. However, administra- 
 tion is not always granted to the 
 majority of interests : WetdriU v. 
 Wright, 2 Phil. 248. See also In 
 the goods of Stainton, L. R. 2 P. 
 & D. 212. 
 
 (/•) Cartwright's ca3e, 1 Freem. 
 258. See also Sawbridge v. HU.], 
 L. R. 2 P. & D. 219.
 
 Ch. II. § I.] To ivhom tJieij should he granted. 363 
 
 decided by the two Chief Justices, tbe Chief Baron et aliis, 
 that, where the deceased left four grandchildren, whereof 
 one was of age and the other three minors, the administra- 
 tion should be granted to the mother as guardian to the 
 three durante minorc atate, in preference to the grandchild 
 who was of age : because, since the statute (22 & 23 Car. II. 
 c. 10), which entitled them all to distribution, the interest of 
 the three preponderated. 
 
 But, although, when the contest for an administration is whole blood 
 between two persons in equal degree of the whole blood, the ^^^^ material 
 
 general rule has been to grant it to that person in whom the objections can 
 ^ o 1 j)g proved : 
 
 majority of those entitled to distribution concur ; yet that 
 rule does not hold when the contest is between one of the 
 whole blood and one of the half blood ; for, in that case, the 
 whole blood is preferable in the grant of administration to 
 the half-blood, though the majority of interests concur in the 
 latter, unless material objections can be proved against him 
 of the whole blood (s) . 
 
 Primogeniture, as it has been already observed, gives no Primogeniture: 
 right to preference, so as to weigh against the wish of the 
 majority of interests ; yet if things are precisely equal, — if 
 the scale is exactly poised, being the elder brother would 
 incline the balance {t). 
 
 Again, by the practice of the Court, a son has the pre- Son preferred 
 ference to a daughter, unless there are material objec- '^ 
 
 tions to him ; and it has been held not enough to divest him 
 of that preference, to show that he has intermeddled with the 
 effects of the deceased without competent authority (m). 
 
 (s) Mercer v. Moorland, 2 Cas. females is not so stringent as the 
 
 temp. Lee, 499. Stratton v. Lin- rule that the grant will follow the 
 
 ton, 31 L. J., P. M. & A. 48. majority of interests : Iredale v. 
 
 (t) Warwick v. Greville, 1 Phil- Ford, I S\v. & Tr. 305. Again the 
 
 lim. 125. S. P. as to an elder of former rule may be met by an- 
 
 two sisters, Coppin v. Dillon, 4 other rule, viz., that the grant will 
 
 Hagg. 376. be made jn-iori petenti : Cordeux 
 
 (u) Chittenden v. Knight, 2 Cas. v. Trasler, 34 L. J., P. M. & A. 
 
 temp. Lee, 559. The rule that 127, 
 males are to be preferred to
 
 364 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 A man used to 
 business pre- 
 ferred : 
 
 next of kin 
 also creditor : 
 
 next of kill a 
 bankrupt : 
 
 husband a 
 bankrupt : 
 
 next of kin a 
 lunatic. 
 
 The Court pre- 
 fers a sole to a 
 joint adminis- 
 tration : 
 
 and never 
 forces a joint 
 administra- 
 tion. 
 
 When an 
 administrator 
 is once ap- 
 pointed, 
 another of 
 same degi'ee of 
 kindred cannot 
 come into the 
 administration 
 till the ad- 
 ministrator is 
 dead. 
 
 Cceteris paribus, a man accustomed to business is preferred 
 by the Court to be administrator (x). 
 
 The fact of one of several next of kin being also a creditor 
 is rather adverse to, than in favour of, his being preferred in 
 a contest for the administration (?/). 
 
 In a case where the administration was contested between 
 two in an equal degree of relationship, one of whom was 
 objectionable, but the other had been twice a bankrupt, the 
 Court granted the administration to the former, and con- 
 demned the latter in costs (z). 
 
 A husband's right to administration to his wife's estate 
 is not such a right as will vest in the trustee under his 
 bankruptcy (a). 
 
 Where the sole next of kin of an intestate was a lunatic, 
 and her committee renounced, the Court upon the consent of 
 the next of kin of the lunatic being filed, granted administra- 
 tion to a stranger in blood (h). 
 
 The Court prefers, cceteris jmrihus, a sole to a joint ad- 
 ministration, because it is much better for the estate, and 
 more convenient for the claimants on it (c) ; and, a fortiori, 
 the Court never forces a joint administration upon unwilling 
 parties {d). 
 
 When administration has been once committed to any of 
 the next of kin, others, even in the same degree of kindred, 
 have, during the life of the administrator, no title to a similar 
 grant ; so different in this case from that of an executor, who 
 has a right to probate, though it has been already taken out 
 by his co-executor. The maxim, "gui prior est tempore 
 potior est jure,'" applies in the former but not in the latter 
 
 {x) Williams v. "Wilkins, 2 Phil- 
 lim. 100. 
 
 {y) "Webb v. Needham, 1 Add. 
 494. 
 
 [z) Bell V. Timiswood, 2 Pliil- 
 lim. 22. 
 
 (rt) In the goods of Turner, 12 
 P. D. 18. 
 
 (6) In the goods of Hastings, 4 
 
 P. D. 73. 
 
 (c) War\\ack v. Greville, 1 Phil- 
 lim. 126. Stanley v. Bernes, 1 
 Hagg. 222. In the goods of 
 Nayler, 2 Eobert. 409. Ante, 
 p. 350, note {y). 
 
 (d) Bell V. Timiswood, 2 PhiUim. 
 22.
 
 Ch. II, § I.] To whom they should he granted. 365 
 
 instance (e). But a next of kin who lias even renounced 
 may, upon the death of the party appointed administrator, 
 come in and take administration de bonis non (/). 
 
 Where a person entitled to administration is resident in a where a party 
 foreign country, the Court will expect that due diligence adm*^*^-'^t'^° • 
 shall be used to give him notice of the application, before it i'' lesi.ient 
 
 •n 1 -I • • , • mi abroad. 
 
 Will grant administration to another party. Thus where the 
 intestate died in the department of Oise, in France, leaving a 
 widow resident there, and application was made for adminis- 
 tration by the next of kin, the Court held, that service of 
 the decree in the then usual manner on the Royal Exchange 
 was insufficient (g). 
 
 If the intestate left personal property, as well in the Colo- Administra- 
 nies as in this country, the grant of administration obtained pert/out of 
 here will not extend to the Colonies, though the intestate *^"^ country. 
 died and w^as resident here (h). So a defendant who had been 
 arrested in Ireland, by a writ of ne exeat regno issued out of 
 Chancery there, for a debt due to an intestate, was discharged, 
 on the ground that the plaintiff had not obtained administration 
 in that country {%). 
 
 In the case of a foreigner dying intestate within the British Administra- 
 dominions, it should seem, that if no question is raised, the etre'cte of^^ 
 Court will grant administration to the person entitled to the foreigner. 
 effects of the deceased, according to the law of his own 
 country {k). If the legal title be disputed, the question will 
 
 (e) Toller, 98. tend to the property there, if the 
 
 (/) Skeffington v. White, 1 Hagg. deceased was domiciled here : and 
 
 700, 702, 703. the judge of probate in the colo- 
 
 {(j) Goddard v. Cressonier, 3 nies ought to follow the English 
 
 Phillim. 637. The same, where grant. See ante, p. 302. 
 
 the next of kin is resident in the (i) Swift v. Swift, 1 Ball & Beat. 
 
 West Indies : Miller v. Washing- 326. 
 
 ton, 3 Hagg. 277. As to the pre- (/c) In the goods of Beggia, 1 
 
 sent practice of service of citations, Add. 340. In the goods of the 
 
 see fost, p. 379. Countess Da Cunha, 1 Hagg. 237. 
 
 (/i) Burn 17. Cole, Ambl. 416. Administration of the effects of a 
 
 Atkins V. Smith, 2 Atk. 63, by deceased, who died domiciled in 
 
 Lord Hardwicke. But the rights Scotland, was granted to a party 
 
 of such an administrator will ex- entitled to them according to the
 
 366 
 
 Of General Letters of Administration. [Pt. i. Bk. t. 
 
 Administra- 
 tion to a 
 person domi- 
 ciled out of 
 this country 
 of property 
 here. 
 
 depend on the fact whether the deceased was domiciled 
 within the British dominions, or only a temporary resident 
 there {I). 
 
 If the intestate was domiciled in a foreign country, or 
 within the king's dominions out of England, and left assets 
 in this country, administration must be taken out here, as 
 well as in the country of domicil (m). But if he left no assets 
 in this country, the Court of Probate has no jurisdiction to 
 make any grant of administration in respect of his estate {n). 
 If the party applying for administration here has already 
 obtained a grant in the proper Court of the country where the 
 domicil was, it should seem that the Court here, generally 
 speaking, would follow that grant (o) : But if an original 
 administration be applied for here, in such case, whether the 
 deceased were a British subject, or an alien, since, in either 
 event, the distribution of his personal property is to be 
 regulated according to the law of the country in which he was 
 a domiciled inhabitant at the time of his death {p), it appears 
 
 I 
 
 Scotch law, on proof of the law by 
 affidavit from a Scotch solicitor : 
 In the goods of Stewart, 1 Cmt. 
 904. See also In the goods of 
 Hill, L. R. 2 P. & D. 89. The 
 regular course seems to be that 
 the ambassador should certify the 
 law of the country he represents : 
 In the goods of Dormoy, 3 Hagg. 
 767. 
 
 (/) 1 Add. 342. And see ante, 
 p. 302, et seq., and infra, Pt. iii. 
 Bk. IV. Ch. I. § V. Where a party 
 applies for administration, as the 
 agent of a foreigner resident 
 abroad, and entitled to adminis- 
 tration, the application cannot be 
 supported, without exhibiting to 
 the Court a proper authority from 
 the person so entitled : In the 
 goods of the Elector of Hesse, 1 
 Hagg. 93. 
 
 (m) See anie, p. 298. Le Briton 
 
 V. Le Quesne, 2 Cas. temp. Lee, 261. 
 Attorney-General v. Bouwens, 4 
 Mees. & W. 393. 
 
 (?i) In the goods of Tucker, 3 
 Sw. & Tr. 585. Evans v. Burrell, 
 28 L. J., P. & M. 82. In the goods 
 of Fittock, 32 L. J., P. & M. 157. 
 See also In the goods of Coode, 
 L. R. 1 P. & D. 449. 
 
 (o) See ante, p. 305. Viesca v. 
 D'Aramburu, 2 Curt. 277. In 
 the goods of Rogerson, 2 Curt. 
 656. In the goods of Henderson, 
 2 Robert. 144. As to whether 
 the Court will grant administra- 
 tion limited to the pendency of 
 a suit in the foreign Court to a 
 person duly appointed by that 
 Court, see In the goods of Morgan, 
 2 Robert. 415. 
 
 (p) See post, Pt. III. Bk. iv. 
 Ch. I. § V.
 
 Cli. II. § I.] To whom then should he (/ranted. 367 
 
 to be a necessary consequence that tlie grant should be made 
 to the j)erson entitled to the effects of the deceased according 
 to the law of that country (</). 
 
 By stat. 24 & 25 Vict. c. 121, s. 4, *' Whenever a conven- stat. 24 & 25 
 
 tion shall be made between her Majesty and any foreign state, ^'";'" ^- ■^-^' 
 
 whereby her Majesty's consuls or vice-consuls in such foreign When subjects 
 
 state shall receive the same or the like powers and authorities states shall die 
 
 as are hereinafter expressed, it shall be lawful for her Majesty >°*^e^^''^ie''ty's- 
 
 by order in council to direct, and from and after the publication ^^^^^ ^^^^^^ ^'^ 
 
 no person to 
 
 of such order in the London Gazette, it shall be and is hereby administer to 
 enacted, that whenever any subject of such foreign state shall the"on^suls^of 
 die within the dominions of her Majesty, and there shall be '^"'^'^ foreign 
 
 ■^ '' states may 
 
 no person present at the time of such death who shall be admiaister. 
 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 
 administration of the effects of such deceased person, limited 
 in such manner and for such time as to such Court shall 
 seem fit." 
 
 It may here be remarked, that although it is fully settled RiL-iits and 
 
 liabilities of 
 
 (q) See In the goods of John- the next of kin appeared to show 
 
 ston, 4 Hagg. 182. But see also cause against it : Aspinwall v. 
 
 In the goods of Veiga, 3 Sw. & Tr. The Queen's Proctor, 2 Curt. 241. 
 
 13. But administration of the See In tlie goods of WyckofF, 3 
 
 effects of a domiciled American Sw. & Tr. 20. The law of tliis 
 
 dying in this country, in itinere, country will not, it should seeui, 
 
 limited to the purpose of paying recognise the right of a foreign 
 
 his debts, &c., and transmitting consul to take possession of the 
 
 the balance to the Treasury of the property of a foreigner dying here. 
 
 United States, was refused to the in itinere, domiciled in his own 
 
 American consul, the Crown op- country : 2 Curt. 247. See' stat. 
 
 posing the grant, tliough none of 24 & 25 Vict. c. 121, p. 4, supra.
 
 368 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 foreign :id- (as there will hereafter he occasion to show) (?■), that the 
 ministrators. ^.^^^^ ^^ successioii to the personal estate of an intestate is 
 to he regulated hy the law of the country in which he was 
 domiciled at the time of his death, yet the administration of 
 the estate must he in the country in which possession of it is 
 taken and held under lawful authority. Thus, hy the law of 
 England, the person to whom administration is granted by 
 the Court of Probate is by statute bound to administer the 
 estate, and to pay the debts of the deceased : The letters of 
 administration, under which he acts, direct him to do so, and 
 he takes an oath that he will well and truly administer all and 
 every the goods of the deceased, and pay his debts so far 
 as his goods will extend, and exhibit a full and true account 
 of his administration : And these duties remain the same, 
 notwithstanding the intestate may have died domiciled 
 elsewhere. — Accordingly, in Preston v. Lord Melville (s), the 
 persons named as trustees and executors in the Will of a 
 domiciled Scotchman having declined to act, his next of kin 
 obtained letters of administration of his personal estate in 
 England from the proper Ecclesiastical Court there, and 
 afterwards consented to the appointment, by the Court of 
 Session of Scotland, of other persons as trustees and executors 
 in place of those named in the Will, wdth all the powers 
 that had been thereby given to them : These trustees so 
 appointed raised an action in the Court of Session against the 
 administratrix, calling on her to transfer to them the 
 personal estate possessed by her under the administration, 
 and offering her a full release from liability ; and it was held 
 by the H ouse of Lords (reversing the decree of the Court of 
 Session), that the personal estate in England must be ad- 
 ministered there by the administratrix, by virtue of the letters 
 of administration (/)• 
 
 (r) Post, Pt. III. Bk. IV. Ch. I. wortli in Enoliin v. Wylie, 10 H. 
 
 S V. of L. 19. See also Lord St. Leo- 
 
 (s) 8 CI. & Fin. 1. nards' observations on this case in 
 
 (() See Accord, fer Lord Cran- the Carron Iron Company v. Mac-
 
 Cli. II. § I.] To whom tliey sliould he granted. 369 
 
 Again, with respect to all the property of which the intes- 
 tate died possessed in the Queen's dominions out of England, 
 the administrator, under the letters granted there, has, it 
 should seem, a right to hold it against an administrator under 
 a grant obtained in this country. Thus in Currie v. Bir- 
 cham {u), the widow of an officer who died intestate in India 
 obtained letters of administration of her husband's effects in 
 the Recorder's Court at Bombay, and remitted the proceeds 
 of the effects in government bills to her agent in England : 
 A creditor of the intestate took out letters of administration 
 to him in this country, and brought an action against the 
 widow's agent for money in his hands, part of such proceeds 
 so remitted : It was held that the wife was entitled to all the 
 effects of which the husband died possessed in India, by 
 virtue of the letters of administration granted to her in that 
 country, and that therefore no action lay against her agent at 
 the suit of the plaintiff, under the letters he had obtained in 
 the Prerogative Court here (x). However, in Hervcy v. 
 Fitzpatrick (y), it was held by Wood, V.-C, that where the 
 foreign administrator remits a part of the assets to England 
 to be sold and the proceeds to be carried to the account of the 
 intestate's estate, and comes himself to this country, he 
 may be sued in a Court of Equity here by a next of kin of 
 the deceased, who has taken out administration here, in 
 respect of those assets : and that the Court has a right to 
 deal with them, and to appoint a receiver, if there is danger 
 of their being taken out of the jurisdiction. 
 
 If a bastard, who, as nullius Jilius has no kindred, or any Administra- 
 other person having no kindred, die intestate, and without bastarVor 
 wife or child, it has formerly been holdcn, that the Ordinary °*'i<^i' person 
 
 •^ -^ without 
 
 laren, 5 H. of L. 456. Stirling to call on all limited administra- ^i'^'^^'^ed. 
 
 Maxwell v. Cartwright, 9 C. D. tors to pay over the net surplus. 
 
 173 ; 11 C. D. 522. Eames v. See Eanies v. Hacon {uhi sup.). 
 Hacon, 16 C. D. 407 ; 18 C. I!. (u) 1 Dowl. & Ryl. 35. 
 
 347. Ewingv. Orr-Ewing, 9 App. {x) See also Jauncey?;. Sealey, 1 
 
 Cas. 34 ; 10 App. Cas. 453. But Vern. 397. Story's Confl. of Laws, 
 
 the principal administrator, that Ch. xiii. s. 518. Ante, p. 296, 
 
 is to say, the administrator in the et seq. 
 country of the domicil, is entitled (y) Kay, 421. 
 
 W.E. — VOL. 1. B B
 
 370 Of General Ltttcrs of Adni'uiistration. [Pt. i. Bk. v. 
 
 could seize his goods, and dispose of them to pious uses ; hut 
 it is now settled that the king is entitled to them as idtimus 
 hares (z), not in a fiduciary character but beneficially (a) ; 
 subject, nevertheless, to the debts of the intestate (b). Yet 
 in such case it is the practice to transfer the royal claim by 
 letters patent, or other authority, from the Crown, with a 
 reservation, as it is said, of a tenth, or other small proportion 
 of the property, and then the Court of course grants to such 
 appointee the administration (c). It has indeed been asserted, 
 that such letters patent are merely in the nature of a recom- 
 mendation ; and that though it be usual for the Court to 
 admit such patentee, yet it is rather out of respect to the 
 king, than strictly of right (d). But if the Court chose to 
 grant administration to any other person, the right of the 
 Crown would remain the same. The administrator, whoever 
 he might be, would be a trustee for the Crown (e). 
 
 Where a bastard or other person having no kindred dies 
 
 intestate, leaving a widow but no children, the widow is not 
 
 entitled to the whole of his personal estate, but to one moiety 
 
 only, and the Crown is entitled to the other (/). 
 
 Where bastard Where a bastard having no relations makes a Will dispos- 
 
 tions disposes iug of a part only of his or her property, the Crown has a 
 
 by Will of part 
 
 only of his (z) Jones v. Goodcliild, 3 P. case is not within the Statutes of 
 
 property. Wnis. 33. Rutherford v. Maule, Administration, the Court, in the 
 
 4 Hagg. 213. Dyke v. Walford, 5 exercise of its discretion, usually 
 
 Moo. P. C. 434. In this last case grants the administration to the 
 
 it was held that the right of interest. See post, Ch. iii. § i. 
 
 administration to the goods of a p. 400. 
 
 bastard, who died intestate and (/) Cave v. Roberts, 8 Sim. 214. 
 
 unmarried, in the county of Lan- But it should be noticed that in all 
 
 caster, belonged to the Queen in cases where an intestate dies after 
 
 right of her Duchy of Lancaster 1st September, 1890, the provisions 
 
 and not in right of her Crown. of tlie Intestates Estates Act, 1890, 
 
 (a) Kane v. Reynolds, 4 De G. 53 & 54 Vict. c. 29, apply, and the 
 M. & G. 571, by Lord Cranworth. widow in the case of estates under 
 
 (b) Megit V. Johnson, 2 Dougl. „£500 takes the whole to the ex- 
 548, by Lord Mansfield. elusion of the Crown and in the 
 
 (c) Stote V. Tyndall, 2 Cas. temp. case of estates over ^500 a charge 
 Lee, 394. for £500 in addition to her share 
 
 (d) Manning v. Knapp, 1 Salk. 37. of the residue. 
 
 (e) 5 Moo. P. C. 495. Where a
 
 Ch. II. § I.J To whom tltey should be [/ranted. 371 
 
 right to a grant, save and except, or to a catcrorum grant, 
 but not to a general grant of administration, and tlie 
 legatees have a right to a grant of administration with 
 the Will annexed limited to the property disposed of by 
 the Will ig). 
 
 By Stat. 39 & 40 Vict. c. 18, The Treasury Solicitor Act, Rtat. 39 & 40 
 1876 [which by sect. 9 repeals the former statute, 15 Vict. j,. i.' ' ' 
 €. 3], the Treasury Solicitor is constituted a corporation sole 
 with certain powers and liabilities (sect. 1). 
 
 Where the Crown becomes entitled to the personal estate of Administra- 
 an intestate, and the Court has power to grant administration crown entitled 
 to a nominee of the Crown, and where the Crown nominates *» pei'^ona' 
 
 ' estate ot 
 
 for that purpose the Treasury Solicitor, the Court may grant intestate. 
 administration for the use of the Crown to the Treasury 
 Solicitor (by his official name) and his successors, or to some 
 person nominated by the Treasury Solicitor (sect. 2). 
 
 The administration, when granted to the Treasury Solicitor, 
 and the office of administration under such grant, and all the 
 estate, rights, duties, and liabilities of such administrator 
 vest in and are imposed on the Treasury Solicitor for the 
 time being without any further grant of administration {Ih.). 
 
 The Treasury Solicitor may be nominated as administrator 
 either in any particular case or class of cases, or in all 
 cases, and such nomination may be limited as to Her Majesty 
 may seem fit, and the Treasury Solicitor may be authorised 
 to nominate some other person to take out administration in 
 any particular case or class of cases. 
 
 The Treasury Solicitor notwithstanding that he does not 
 give the bond which, if such administration were granted to 
 him as a private individual, he would be required by law to 
 give, is subject as regards the administration to the liabilities 
 and duties imposed by such bond {Ih.). 
 
 Section 4 deals with the disposal of money and property Sect. 4. 
 received under an administration or forfeiture, and of un- 
 claimed grants. 
 
 Section 5 provides for the making of rules by the Treasury, sect. 5. 
 
 ig) In the goods of Rhoades, L. R. 1 P. & D. 119. 
 
 n Tt 2
 
 372 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 sect. 6. Section 6 applies the Act to previous administrations, &c. 
 
 sect. 9 (1). Section 9 (1) provides for the re-enactment of sect. 2 of stat. 
 
 15 & IG Vict. c. 3 (repealed as above stated) viz., that "where 
 the administration of the personal estate of any deceased 
 person has been granted to the Solicitor for the affairs of Her 
 Majesty's Duchy of Lancaster, for the use of Her Majesty, 
 that solicitor shall, notwithstanding that he does not give the 
 bond which, if such administration had been granted to him 
 as a private individual, he would be required by law to give, 
 be subject, as regards the administration, to the liabilities 
 and duties imposed by such bond." 
 
 Where a person died in Cornwall intestate without known 
 relations, the Court granted letters of administration of his 
 estate for the use of H.R.H, the Prince of Wales as Duke of 
 Cornwall, but without prejudice to the rights of the Crown (h). 
 
 Intestates" By the Intestates Estates Act, 1884, " where the adminis- 
 
 Estates Act, • ^ i 
 
 1884, 47 & 48 tration of the personal estate oi any deceased person is granted 
 
 g ^?/ ^' ' ' to a nominee of Her Majesty (whether the Treasury Solicitor 
 or a person nominated by the Treasury Solicitor, or any other 
 person) any action or proceeding by or against such nominee 
 for the recovery of the personal estate of such deceased person, 
 or any share thereof, shall be of the same character, and be 
 brought, instituted, and carried on in the same manner, and 
 be subject to the same rules of law and equity (including the 
 rules of limitation under the Statutes of Limitation or other- 
 wise) in all respects as if the administration had been granted 
 to such nominee as one of the next of kin of such deceased 
 person " (sect. 2). 
 
 sect. 3. Section 3 enacts that " after the passing of this Act an 
 
 information or other proceeding on the part of Her Majesty 
 shall not be filed or instituted, and a petition of right shall 
 not be presented in respect of the personal estate of any 
 deceased person or any part or share thereof, or any claim 
 thereon, except within the same time and subject to the same 
 rules of law and equity in and subject to which an action for 
 the like purpose might be brought by or against a subject." 
 
 {h) Sulicitor of tlie Duchy of Cornwall r. Canning, 5 P. D. 114.
 
 Ch. II. § I.] To 'whom tlieij should he granted, 373 
 
 Section 4 enacts that " from and after the passing of this sect. 4. 
 Act, where a person dies without an heir and intestate in 
 respect of any real estate, consisting of any estate or interest, 
 whether legal or equitable, in any incorporeal hereditaments, 
 or of any equitable estate or interest in any corporeal heredita- 
 ment, whether devised or not devised to trustees by the Will 
 of such person, the law of escheat shall apply in the same 
 manner as if the estate or interest above mentioned were a 
 legal estate in corporeal hereditaments." 
 
 Section 5 gives to the Court a power of sale of the interest sect. 5. 
 
 of the Crown in any hereditament corporeal or incorporeal, 
 
 and directs that the proceeds of such sale shall be paid, 
 
 invested, and disposed of in manner provided by sect. 4 of the 
 
 Treasury Solicitor Act, 1876. 
 
 It further applies the provisions of sect. 1 of the Trustee 15 & 16 Vict. 
 ^ ^ , , ^ c. 55, s. 1. 
 
 Act, 1850, to such sale. 
 
 Section 6 gives to the Crown power to waive its right to the sect. 6. 
 real estate of an intestate in certain cases. 
 
 Section 7 defines an intestacy for the purposes of the Act sect. 7. 
 as " where any beneficial interest in the real estate of any 
 deceased person, whether the estate or interest of such 
 deceased person was legal or equitable, is, owing to the failure 
 of the objects of the devise or other circumstances happening 
 before or after the death of such person in whole or in part 
 not effectually disposed of, such person shall be deemed to 
 have died intestate in respect of such part of the said bene- 
 ficial interest as is ineffectually disposed of." 
 
 Section 8 applies the Act to the Duchy of Lancaster. sect. 8. 
 
 Section 9 applies the Act to Ireland. sect. 9. 
 
 In the case of a felon convict, and of a felo de se, the Administra- 
 law of forfeiture being abolished by stat. 33 & 34 Vict. c. 23, 
 8. 1, administration is now no longer granted as formerly to a 
 nominee of the Crown, but follows the ordinary course of the 
 law of succession ah intestato. 
 
 It has always been considered, both in the Common Law Next of kin 
 •and Spiritual Courts, that the object of the statutes of admi- the adminis- 
 nistration (31 Edw. III. c. 11, and 21 Hen. VIII. c. 5) is to !r^^°"' '''''° 
 
 ^ ' / uw ^ii^y have no 
 
 interest.
 
 374 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 If the next of 
 kin die before 
 administration 
 granted, his 
 representative 
 is entitled to 
 it: 
 
 give the management of the property to the person who has 
 the beneficial interest in it (k). And the inclination has 
 been so strong to effectuate this object, by granting the 
 administration to the interest that, in some instances, not 
 only the practice of the Ecclesiastical Court, but the decisions 
 of the Judges Delegate, have not scrupled to disregard the , 
 express words of the statute {I). Thus in Bridges v. The 
 Duke of Xetccastle (Delegates, 1712), Lord Hollis died intes- 
 tate, and Bridges claimed administration as next of kin': 
 The effects were vested by Act of Parliament in the Duke of 
 Newcastle, to pay the debts of the deceased : The Judge of 
 the Prerogative Court (Sir Charles Hedges) and afterwards 
 the Delegates, held that the next of kin was excluded, 
 on the ground that he had no interest, and granted admi- 
 nistration to the Duke of Newcastle (m). So in Young v. 
 Pierce {n), administration w^as refused by the Prerogative 
 and the Delegates to a next of kin, on the ground that she 
 had released all her interest, and the letters were granted to 
 the party beneficially entitled to the personal estate (o). 
 Another strong instance will be found in the next section, 
 with respect to administration cum testamento annexo : in 
 granting which, it has been established by the decisions 
 both of common lawyers and civilians, contrary to the words 
 of the Act, that the next of kin is to be excluded from the ad- 
 ministration when there is a residuary legatee who desires it. 
 Again, the statutes of administration (31 Edw, III. c. 11, 
 and 21 Hen. YIH. c. 5) provide that the Ordinary shall grant 
 administration to the next of kin, or the widow, or to both : 
 and therefore these parties have a statutory right to the 
 administration. But the obligation of the statutes has, in 
 
 {k) Wetdrill v. AVright, 2 Phil- 
 lim. 248. 
 
 {I) See the judgment of Lord 
 Cottenhara, in "Withy v. Mangles, 
 10 CI. & Fin. 248 : Accord. 
 
 (m) Cited by the Court in West 
 V. Willby, 3 Phillim. 381. 
 
 {ri) 1 Freem. 49 o. 
 
 [o) This was a case of adminis- 
 tration de bonis nan : but it will 
 ajjpear in a subsequent section, 
 that, with respect to the obliga- 
 tion of the statute, there is no 
 diflerence between an administra- 
 tion de bonis non and an original 
 administration.
 
 CIi, II. § I.] To whom they should be granted. 375 
 
 several adjudged cases, as well as in practice, been considered 
 to extend only to such persons as are next of kin at the time 
 of the intestate's death (j)) ; and therefore the Court is not 
 bound to grant administration to one who is not entitled to 
 a beneficial interest in the effects, although by the death of 
 intermediate persons, he may have become next of kin at 
 the time the grant is required. Accordingly it was the 
 established practice and course of the Prerogative Office, that 
 if all those who were next of kin at the time of the death of 
 the intestate are dead, then the representative of such next of 
 kin, being entitled to the beneficial interest, is also entitled to 
 the administration, whether original or de bonis non : with 
 this limitation, however, in both cases, that a person origin- 
 ally in distribution is preferred to the representative of the 
 next of kin {q). 
 
 But it is no defence to an action brought by such repre- bat payment to 
 sentative, as administrator to the original intestate, against a is D^answer to 
 debtor to his estate, that the defendant paid the debt in ques- f° ^'^*"'" ^^ 
 
 '■ his representa- 
 
 tion to the next of kin, who died without taking out letters of tive as admin- 
 
 , . . , , . , , istrator to the 
 
 admmistration (r). original intes- 
 
 There is a distinction between a person appointed executor, *^**'' 
 
 1 ,.,, ,, ,.. . n 1 • .1-^ n^Tii of kin 
 
 and one entitled to the administration as next oi kin, with cannot be com- 
 respect to the obligatory consequences of administering the out admimV^ 
 goods of the deceased : An executor, it has been shown , after tration, though 
 
 he has inter- 
 
 au act of administration, cannot refuse to accept the executor- meddled with 
 ship, and take probate (s) : but although a next of kin may 
 have intermeddled with the eifects, and made himself liable 
 as executor de son tort, he cannot be compelled by the Court 
 to take upon himself the office of administrator {t). 
 
 {p) Savage v. Blythe, 2 Hagg. the grant of administration to the 
 
 Appendix, 150. Almes v. Almes, plaintiff be, in its terms, of the 
 
 ibid. 155; and see the observa- goods, &c., "left unadmimstered" 
 
 tions of the learned reporter, ibid. by the next of kin : Mitchell v. 
 
 p. 156. Moorman, uhi sup. 
 
 (q) 2 Hagg. Appendix, 157. (s) Ante, p. 227. 
 
 (r) Mitchell v. Moorman, 1 {f) Ackerley v. Oldham, 1 Phil- 
 Young & Jerv. 21 ; Mitchell v. lim. 248. Ackerley v. Parkinson, 
 Holmes, L. R. 8 Ex. 119 : and it 3 M. & 8. 411. In the goods of 
 shall make no difference, though Fell, 2 Svv. & Tr. 126.
 
 376 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 Aaministra- Administration may be ffrantecT to tlie attorney of all the 
 
 tiou granted to . "^ ° '' , 
 
 the attorney of next of kin, provided they reside out of the country ; and if 
 the effects are under twenty pounds, such administration may 
 be granted whether they are so resident or not {u). By 
 rule 32, P. R. 1862 (Non-contentious), " In the case of a 
 person residing out of England, administration, or adminis- 
 tration with the Will annexed, may be granted to his attorney 
 acting under a power of attorney." But where a person solely 
 entitled to the grant is resident in this country, and able to 
 take it himself, the Court will decline to decree it to his 
 attorney, for his use and benefit (.r). 
 
 On one occasion the Court granted, to the agent of the 
 Elector of Hesse, an administration limited to substantiate 
 proceedings in Chancery respecting a debt due to the late 
 Elector ; but declined to extend the administration to the 
 receipt of the debt, without a power of attorney from the 
 proper authorities {y). 
 
 AVhere letters of administration are granted to persons 
 under a power of attorney from the party entitled to the 
 representation, the letters express that they are granted 
 " for the use and benefit " of the latter {z). But these words 
 do not exclude the claim of other persons to share in the 
 personal estate {a). It was, indeed, held, in the case of De 
 la Viesca v. Lubbock (b), that where administration has been 
 
 (/') Toller, 108. As to what 629. 2 Hare, 537, note (a). See 
 
 shall constitute a proper authority also In the goods of Cassidy, 4 
 
 to apply for the grant, as the Hagg. 360. Post, p. 407. 
 
 attorney of the j^arty entitled to it, (a) Anstruther v. Chalmer, 2 
 
 see Lucas v. Lucas, 3 Cas. temp. Sim. 5. 
 
 Lee, 576. In the goods of Reitz, (h) 10 Sim. 629. The case of 
 
 3 Hagg. 766. In the goods of De la Viesca v. Lubbock was 
 
 Elderton, 4 Hagg. 210. approved by Jessel, M.R., in 
 
 (x) In the goods of Burch, 2 Eames v. Hacon, 18 C. D. 347, 
 
 Sw. & Tr. 139. 352, in the argument of which 
 
 (rj) In the goods of the Elector case. Chambers v. Bicknell, and 
 
 of Hesse, 1 Hagg. 93: see also In Att.-Gen. v. Kohler {ubi infr.), 
 
 the goods of Beggia, 3 Add. 340. were cited, but, as pointed out by 
 
 {;:) The form of such letters will Jessel, M.R., in his judgment, it 
 
 be found at full lenErth in 10 Sim. does not follow because such an
 
 Ch. II. § I.] I'o n^hom tlheij sliould he granted. 377 
 
 granted to the attorney of a person abroad for the use and 
 benefit of that person, the latter may sue the administrator 
 in this country without making the parties beneficially 
 interested parties to the suit, and without taking out letters 
 of administration in this country ; for that as the letters were 
 expressly granted to the administrator as the attorney of the 
 party abroad, he might safely pay over to that party the 
 moneys received under the authority of the letters. How- 
 ever, in the subsequent case of Cliamhers v. Bicknell (c), it 
 was held that such an administrator is liable to be sued, in 
 respect of the estate of the intestate, by the parties bene- 
 ficially interested in it, in the same way as if he had obtained 
 letters of administration in his own right ((7). 
 
 The general rule is, that where a person is authorized by a 
 simple power of attorney to take out administration, the 
 Court ought to decree him such administration as it would 
 have granted to the person who conferred the power, if he had 
 applied for it himself (c). 
 
 If the attorney be resident out of the jurisdiction, the 
 sureties to the bond must be resident within the kingdom (/). 
 
 If none of the next of kin will take out administration Administra- 
 a creditor may, by custom, do it {(j) : on the single ground ^ creditor : 
 
 administrator is liable to be sued sureties resident in Jersey where 
 
 by the next of kin that he cannot, the person to whom a limited 
 
 when he has not been sued, hand grant of administration was made 
 
 over the naoney to the person for was resident without the jurisdic- 
 
 whose iise and benefit the letters tion, and was unable to procure 
 
 were granted. The two proposi- justifying sureties within the juris- 
 
 tions are not correlative. diction. See also In the goods of 
 
 (c) 2 Hare, 536. Ballingall, ih. 441. Post, Pt. i., 
 
 {d) See also Accord. Re Dewell, Bk. v. Ch. iv. 
 Edgar v. Reynolds, 4 Drew. 2G9. {g) 2 Black. Comm. 505. He 
 
 Attorney-General v. Kohler, 9 H. has no right to the administration 
 
 of L. 654. except by the practice of the 
 
 (e) Inthegoodsof Goldsborough, Court. He is the appointee of 
 
 1 Sw. & Tr. 295. the Court : And if circumstances 
 
 (/) In the goods of Leeson, showed that the creditor was not a 
 
 1 Sw. & Tr. 463. But see In the proper person, non constat that the 
 
 goods of Reed, 3 Sw. & Tr. 439, in Court might not appoint another : 
 
 which case the Court accepted Menzies v. Pulbrook, 2 Curt. 850.
 
 Oil 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 even though 
 his right of 
 action be 
 statute barred ; 
 
 bond required 
 from creditor : 
 
 now required 
 in all cases : 
 
 citation }>y 
 creditor of next 
 of kin : 
 
 that he cannot be paid his debt until representation to the 
 deceased is made (//) ; and therefore administration is only 
 granted to him, faiKng every other representative (i). So 
 letters of administration may be granted to the executors of a 
 creditor (A-). 
 
 It was decided that a creditor is entitled to a grant of 
 administration, although his right of action is barred by the 
 Statute of Limitations, but the Court made it a condition 
 that he should give a bond to distribute the estate rateably 
 and without preference of his own debt (l) : and it is now the 
 practice that a creditor on taking out administration must in 
 all cases, whether other creditors are present or not to make 
 objection, enter into a bond conditional to administer the 
 estate rateably amongst the creditors of the deceased (m). 
 
 The necessary course is, when a creditor applies for 
 administration, to issue a citation for the next of kin in 
 particular, and all others in general, to accept or refuse 
 letters of administration, or show cause why administration 
 should not be granted to such creditor (n). In point of 
 practice it is not uncommon, upon a decree issuing to show 
 cause why administration should not be committed to A. B., 
 a creditor, to substitute C. D., another creditor, on the day 
 assigned for the appearance of the parties interested, and to 
 
 (h) Elme v. Da Costa, 1 Plaillim. 
 177. 
 
 {{) Webb r. Needbam, 1 Add. 
 494. A creditor cannot deny an 
 interest or oppose a Will : Dabbs 
 V. Chisman, 1 Pbillim. 159. Elme 
 V. Da Costa, 1 Phimm. 177. Men- 
 zies V. Pulbrook, 2 Ctirt. 845. 
 Ante, p. 280, post, p. 382. 
 
 {k) Jones v. Beytagh, 3 Pbillim. 
 635. The husband of a woman, 
 who before marriage has partly 
 administered as a creditor, on her 
 death, is not entitled in his own 
 right as creditor, but only as 
 representative of his wife. In the 
 
 goods of Eisdon, L. R. 1 P. & D. 
 637. 
 
 (/) Coombs V. Coombs, L. R. 
 1 P. & D. 288. 
 
 (m) In the goods of Bracken- 
 bury, 2 P. D. 272. 
 
 (n) Whenever a party has a 
 right to the administration, the 
 Court always requires that he 
 should be cited or consent : In the 
 goods of Barker, 1 Curt. 592. A 
 creditor may cite the next of kin 
 although his right of action is 
 barred by the Statute of Limita- 
 tions. In the goods of Coombs 
 L. R. 1 P. & D. 193.
 
 oil. II. § I.] To u'lioiii theij should he gfantcd. ^^79 
 
 suflfer aclmiuistration to pass to C, D,, though not the person 
 in whose name the decree originally went (o). The next of 
 kin may appear to the citation, and will then be preferred 
 to the creditor ; but if the next of kin has unduly delayed 
 to take out admuiistration (as where six months elapse from 
 the death of the intestate), the creditor will be allowed his 
 costs (2)). If there are no next of kin, as in the case of an 
 intestate bastard, notice of the application for letters of 
 administration must be given to Her Majesty's Procurator 
 General (q). 
 
 Citations must be served personally, when that can be done, citation mTist 
 
 .be personally 
 
 by leaving a true copy of the citation with the party cited, served if 
 
 and showing him the original, if required by him so to do. ^°^^^ 
 
 If a citation cannot be served personally, it must be served if not possible, 
 
 . T by advertise- 
 
 by insertion of the same, or of an abstract settled and signed ment in news- 
 
 by one of the Kegistrars of the Court as an advertisement in ^^^^^^ • 
 
 such morning and evening London newspapers and such 
 
 local newspapers and at such intervals as the Judge or 
 
 Registrar may direct (r). 
 
 The Court does sometimes grant administration to more one creditor 
 
 J preferred to 
 
 creditors than one, but it prefers that one should be nxed the rest upon 
 
 , , terms : 
 
 upon (s). 
 
 Before granting letters of administration to a creditor, the affidavit of tiie 
 
 ° ^ amount of pro- 
 
 Court always requires an affidavit as to the amount of the pei-ty, &c. -. 
 property to be administered : unless where there has been a 
 personal service of the usual citation on the parties entitled 
 to the administration in the first instance (t). An affidavit 
 
 (0) Talbot V. Andrews, 1 Hag<r. the preference of one creditor to 
 
 697. Andrews v. Murphy. 30 another, by reason of the superior 
 
 L. J., P. & M. 37. nature, or larger amount of the 
 
 {p) Cole V. Rea, 2 Phillim. 428. debt, Kearney v. Whitaker, 2 Cas. 
 
 See Jones r. Beytagh, 3 Phillim. temp. Lee, 324. Carpenter v. 
 
 635. Shelford, ibid. 502. As to the 
 
 (q) See rule 75, P. R. 1802 bond to be entered into, see In the 
 
 (Non-Contentious). goods of Brackenbury, 2 P. D. 
 
 (r) Rules 69 and 70, P. R. 1862 272, ante, p. 378. 
 
 (Non-C(.ntentious). (0 Martineau v. Rede, 2 Add. 
 
 (s) Harrison v. All persons in 455. Briggs v. Roope, 29 L. J., 
 
 general, 2 Phillim. 249. See as to P. & M. 96.
 
 380 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 creditor a 
 luortsagee 
 
 who is not to 
 be considered 
 a creditor : 
 
 creditor who 
 has bought up 
 debt after 
 
 is also necessary of the amount of the debt, and that the 
 creditor has no other security (it) ; and also of the time the 
 debt became due, in order that it may be seen that the debt 
 is not barred by the Statute of Limitations (x). 
 
 The Court will grant administration to a bond creditor, 
 who has also a mortgage on the leasehold property : but if 
 the grant were prayed by a mortgagee of real property, there 
 might be a reason why the administration should not pass 
 to him, because it would give him a priority, and exclude 
 simple contract creditors {y) . 
 
 A person who was joint assignee of the estate of a bank- 
 rupt with the deceased, out of which the latter had applied 
 a sum of money to his own use, for which he had not ac- 
 counted at the time of his death, is not a creditor to the 
 estate of the deceased so as to be entitled to pray adminis- 
 tration to him {z). 
 
 On one occasion (a) where a partner died leaving the 
 partnership accounts unsettled, an eminent civilian {h), 
 before whom a case was laid by the direction of Sir John 
 Leach, V.-C, gave his opinion that a person to whom one of 
 the surviving partners had assigned his share of the profits 
 of the partnership had not such an interest in the effects of 
 the deceased partner as would entitle him to be considered 
 a creditor, and in that character to cite the next of kin to 
 accept or refuse administration of his effects : but that the 
 Ecclesiastical Court would grant a limited administration to a 
 person nominated by him, for the purpose of substantiating 
 proceedings in Chancery, on the refusal of the next of kin 
 after citation, and upon showing the necessity for such a 
 representation. 
 
 It is the established practice of the Court of Probate to refuse 
 
 («) Aitkin v. Ford, 3 Hagg. 193. 
 
 (x) Rawlinson v. Burnell, 3 Sw. 
 & Tr. 479. 
 
 {y) Roxburgh v. Lambert, 2 
 Hagg. 557. But see now stat. 
 3 & 4 AV. 4, c. 104. Post, Pt. iv. 
 
 Bk. I. Ch. II. § I. 
 
 {z) Snape v. Webb, 2 Cas. temp. 
 Lee, 411. 
 
 (a) Casvthorn v. Clialie, 2 Sim. 
 & Stu. 129. 
 
 (5) Dr. Jenner.
 
 Cli. II. § I.] To whom tlcey should he granted. 381 
 
 to grant administration as creditor to a person who has death of debtor 
 bought up a debt after the death of the deceased (c). administration 
 
 But this practice is not inconsistent with a grant being ^^ creditor : 
 made to a creditor of the party beneficially entitled to an 
 interest in the estate of the deceased, who has assigned it, 
 by way of mortgage or otherwise, to the parties seeking the 
 grant {d). 
 
 It has been held, that a surety who, after the death of the secus, as to 
 principal, pays off the debt, is entitled to be regarded as a p^^ o/debt ^^ 
 creditor of the estate of the deceased, so as to be entitled to after death of 
 
 principal : 
 
 pray administration to him (<?). 
 
 In the case of Aitkin v. Ford{f), administration, as to a 
 creditor, was decreed to the mother of an intestate, who 
 had been advanced by her ; the father, though alive, having 
 been divorced in the Commissary Court of Scotland, and 
 married again. In Hudleston y. Hudleston(g), administra- 
 tion to the effects of a wife who had lived with her husband 
 until her death, was granted to an antenuptial creditor of 
 the wife (h). 
 
 When a creditor administrator has been duly appointed, next of kin 
 
 cannot oust a 
 
 (c) Depit V. Delerieleuse, 2 Svv. assigned. In the goods of Burdett, creditor 
 
 & Tr. 131. In the goods of Coles, 1 P. D. 427. As to administration 
 
 3 Sw. & Tr. 181. S. C. nomine being granted to an undertaker as 
 
 Macnin v. Coles, 33 L. J., P. M. & a creditor for funeral expenses, see 
 
 A. 175. Day v. Thompson, 3 Sw. Newcome v. Beloe, L. E. 1 P. & D. 
 
 k Tr. 169. Downward v. Dickin- 314. 
 
 son, 3 Sw. & Tr. 564. But where {d) In the goods of Godfrey, 
 a creditor who had obtained 2 Sw. & Tr. 133 ; In the goods of 
 administration of the estate of an Coles, 3 Sw. & Tr. 181. Down- 
 intestate died a bankrupt, with- ward v. Dickinson, ubi supra : nor 
 out having fully administered Avith a grant to the assignee of a 
 and leaving the debt due to him- creditor where he is assignee in 
 self still unsatisfied, and after his Bankruptcy, ibid. 
 death his trustee in Bankruptcy (e) Williams v. Jukes, 34 L. J., 
 assigned the unsatisfied debt due P. & M. 60. 
 to his estate from the intestate's (/) 3 Hagg. 193. 
 estate to one of his creditors ; the (g) 2 Robert. 424. 
 Court made a grant of administra- (h) A decree had been person- 
 tion de bonis non to such assignee ally served on the husband, but no 
 limited to the interest in tie appearance was given, 
 intestati's estate w'lich had been
 
 Of General Letters of Achnuti.stration. [Pt. i. Bk. v. 
 
 administrator 
 during his life: 
 
 a creditor in 
 possession of 
 administration 
 may oppose an 
 interest or con- 
 test a Will. 
 
 Wlien adminis- 
 tration may be 
 granted to a 
 person without 
 interest : 
 
 letters ad col- 
 ligetidum. 
 
 the next of kin cannot, during his lifetime, take the adminis- 
 tration from him : but upon his death they may come in, and 
 claim administration de bonis non (?'). 
 
 Although, before administration granted, a creditor cannot 
 deny an interest or oppose a Will, yet, when he has obtained 
 administration, he has a right to maintain it against the 
 executor or the next of kin ; and it is not to be revoked on 
 mere suggestion {k). And where administration has been 
 granted to a creditor, and a Will is afterwards produced, 
 he is entitled to contest it in the same manner that the next 
 of kin might have done, without being subject to costs {I). 
 
 For want as well of creditors, as of next of kin, desirous to 
 take out administration, the Court may grant it to any person 
 at its discretion {in). In a case where the brother and 
 only next of kin renounced, the Court granted adminis- 
 tration to the nephew, although he had no interest (n). Or 
 the Court may, ex officio, grant to a stranger letters ad 
 colligendum bona defuncti, to gather up the goods of the 
 
 ({) Skeffington v. White, 1 
 Hagg. 702, 703. 
 
 Qi) Elme v. Da Costa, 1 Phillim. 
 173. Menzies v. Pulbrook, 2 Curt. 
 851. Ante, p. 280. And he is 
 not boimd to bring in the adminis- 
 tration till an admissible allega- 
 tion has been brought in, either 
 propounding a Will, or pro- 
 pounding an interest: Dabbs v. 
 Chisman, 1 Phillim. 159, 160. 
 
 {I) Norman v. Bourne, 1 Phil- 
 lim. 160, note (c) to Dabbs v. 
 Chisman, 2 Curt. 851. Ante, 
 p. 280, note {!). 
 ■ (m) See the judgment of Sir H. 
 
 - V6.-W*, o.yy^rr:.^'^^^^^^ F"^*' 1 ^«^^^*- 274, 275. 
 
 ifi ft /Tv • • . In the goods of Chanter, Davis v. 
 
 ^ tU. '^«-«*^^"^— vChanter, 14 Sim. 212. In a case 
 
 k '** /i-*-^ -W m^xfy^, where the widow and all the next 
 
 ^^^J 'P ^'^S'. ' of kin and persons entitled in 
 
 distribution, having been cited, did 
 
 not appear, the Court made a 
 
 l*i>— u^ -9^ O^-^-t^'^iiy.jL^Ke-l J, 
 
 general grant of administration to 
 the receiver. In the goods of 
 Mayer, L. E. 3 P. & D. 39. Where 
 the sole next of kin of an intestate 
 was a lunatic, her committee having 
 renounced, a stranger in blood 
 applied for a grant of adminis- 
 tration. The Court, upon the con- 
 sent of the next of kin of the 
 lunatic being filed, ordered the 
 grant to be made, the Master in 
 Lunacy and the next of kin of the 
 lunatic approving of the applica- 
 tion. In the goods of Hastings, 
 4 P. D. 73. And see stat. 20 & 21 
 Viet. c. 77, s. 73, ipost, p. 384. 
 
 (?i) In the goods of Keane, 1 
 Hagg. 692. See also In the goods 
 of Blagrave, 2 Hagg. 83. In the 
 goods of Johnson, 2 Sw. & Tr. 595. 
 But see In the goods of Allen, 
 3 Sw. & Tr. 559.
 
 Cli. II. § I.J To ivhom they should be granted. 383 
 
 deceased. In a case, where a sole next of kin refused to 
 take administration, the Court decreed letters of adminis- 
 tration to a person who had been her agent, limited "to the 
 collection of all the personal property of the deceased, and 
 giving discharges for the debts which might have been due 
 to the estate on the payment of the same, and doing what 
 further might be necessary for the preservation of the pro- 
 perty aforesaid, and to the safe keeping of the same, to 
 abide the directions of the Court " (o). So, in a subsequent 
 case (p), the Court, under special circumstances, made a grant 
 to a creditor ad colligendum bona, limited to collect the per- 
 sonal estate of the deceased, to give receipts for his debts on 
 the payment of the same, and to renew the lease of his busi- 
 ness premises, which would expire before a general grant could 
 be made. But the Court refused to include in the grant 
 a power to dispose of the lease and good -will of the business, 
 or a power to carry on the business (q). Or the Court 
 may take the goods of the deceased into its own hands, to 
 pay the debts of the deceased in such order as an executor or 
 administrator ought to pay them ; but he, or the stranger who 
 has letters ad colligendum, cannot sell them without making 
 themselves executors of their own wrong : The Court has 
 only an authority, and no such power itself, and therefore it 
 cannot give that power to any other (r). 
 
 The power of the Court in making grants of administration, 20 & 21 Vict. 
 and in deciding to whom they should be granted, has been *^' ' ^' ' 
 much enlarged by the 73rd section of the Court of Probate 
 Act, 1857 (20 & 21 Vict. c. 77). 
 
 (0) In the goods of Radnall, 2 Sw. & Tr. 380. In the goods of 
 
 2 Add. 232. Where it is for the Ashley, 15 P. D. 120. 
 
 benefit of the absent or unknown (5) See also in the goods of 
 
 next of kin the Court will direct WyckhofF, 3 Sw. & Tr. 20, where 
 
 an administrator ad colligenda bona a similar grant was made under 
 
 to dispose of the property or of the 73rd section of the Court of 
 
 any portion of it by sale. In the Probate Act, 1857, infra. 
 
 goods of Schwerdtfeger, 1 P. D. (r) 11 Viu. Abr. 87, Exors. (K.) 
 
 424. pi. 19. 
 
 (|)) In the goods of Clarkington,
 
 384 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 where a pei-son It is thereby enacted, that "where a person has died or 
 
 teLite wTitli- shall die wholly intestate as to his personal estate, or leaving 
 out an executor 
 willing and 
 competent to 
 take probate : 
 
 or wliere the 
 executor is 
 resident out of 
 the United 
 Kingdom : 
 
 if it shall 
 appear to be 
 necessary, the 
 Court may 
 appoint a per- 
 son adminis- 
 trator who 
 would not be 
 otherwise 
 entitled to the 
 grant : 
 
 on giving 
 security, and 
 limited as the 
 Court shall 
 think fit. 
 
 a Will affecting personal estate, hut without having appointed 
 an executor thereof willing and competent to take probate, or 
 where the executor shall at the time of the death of such person 
 be resident out of the United Kingdom of Great Britain and 
 Ireland, and it shall appear to the Court to be necessary or 
 convenient in any such case by reason of the insolvency of the 
 estate of the deceased, or other special circumstances, to 
 appoint some person to be the administrator of the personal 
 estate of the deceased, or of any part of such personal estate, 
 other than the person who, if this Act had not been passed, 
 would by law have been entitled to a grant of administration 
 of such personal estate, it shall not be obligatory upon the 
 Court to grant administration of the personal estate of such 
 deceased person to the person who, if this Act had not 
 passed, would by law have been entitled to a grant thereof; 
 but it shall be lawful for the Court, in its discretion, to 
 appoint such person as the Court shall think fit to be such 
 administrator upon his giving such security (if any) as the 
 Court shall direct, and every such administration may be 
 limited as the Court shall think fit" (-s). 
 
 (.s) The Court will not make a 
 -''^'^mit under this section, unless 
 
 i-w-t-t -tr( /<« 4*-^(yjo-i there are special circumstances to 
 L, x--*:<^^; ^*^^ a. ^cJZjwi^tifj it : In the goods of 'White, 
 '^ ,^W, ^ ''aU^^^ Sw. & Tr. 457. It cannot pass 
 
 h?X) "^ ^°^. 
 
 A*- 0^iiju..J.c^. 
 
 over an executor Ly reason only of 
 his bad character : he must also 
 be resident out of the United 
 Kingdom. In the goods of Sam- 
 son, L. K 3 P. & D. 48. In order 
 to satisfy the Court that it is 
 "necessary and convenient" that 
 the extraordinary power given by 
 the section should be used by the 
 Court, a general statement that 
 " it is necessary for the preserva- 
 tion of the personal estate and 
 effects of the deceased that the 
 
 grant should be made " is not 
 sufficient : In the goods of Cooke, 
 1 Sw. & Tr. 267. In the goods of 
 Bateman, L. E. 2 P. & D. 242. 
 In the following cases, where the 
 Court has thought that the circum- 
 stances have warranted such a 
 grant, it has been made : i. To a 
 creditor. In the goods of Fraser, 
 L. R. 1 P. & D. 327. In the 
 goods of Farrands, 1 P. D. 439, 
 In the goods of Wensley, 7 P. D. 
 13. ii. To a trustee of the 
 marriage settlement of the sole 
 next of kin. In the goods of 
 Maychell, 4 P. D. 74. iii. To the 
 trustee appointed by the will. In 
 the goods of Cosnahan, L. R. 1
 
 Cli. 11. 
 
 §!•] 
 
 To ivhom they should he granted. 
 
 38j 
 
 By rule 31, P. R. (Non-contentious), " whenever the Court, Rule 31, P. R. 
 
 -' ' ^ . (Non contea- 
 
 under sect. 78, appoints an administrator other than the tioua.) 
 
 P. & D. 183. In tlie goods of 
 Stewart, 3 P. & D. 244. iv. To 
 the trustee in bankruptcy of sole 
 next of kin. In the goods of 
 Turner, 12 P. D. 18. v. To the 
 nominee of a married woman, on 
 the objection by her husband to 
 her taking probate or administra- 
 tion. In the goods of Warren, 
 L. R. 1 P. & D. 538 ; Gierke v. 
 Gierke, 6 P. D. 103. vi. To the 
 nominee of a married ivoman, re- 
 siduary legatee, without notice to 
 liusband. In the goods of Pine, 
 L. R. 1 P. & D. 388. vii. To the 
 <juardians of minors. In the goods 
 of Hagger, 3 Sw. & Tr. 65. In the 
 goods of Burgess, 4 Sw. & Tr. 188. 
 In the goods of See, 4 P. D. 86. 
 In the goods of Batterbee, 14 P. D. 
 39. viii. To a residuary legatee 
 test, annex. In the goods of Saw- 
 tell, 2 Sw. & Tr. 448. ix. To the 
 executor under a foreign Will. In 
 the goods of Earl, L. R. 1 P. & D. 
 450. X. To a sister of the intestate ; 
 limited until next of kin should 
 apply for administration. In the 
 goods of GholwiU, L. R. 1 P. & D. 
 192. xi. To a sister of the intes- 
 tate ; passing over the motlier who 
 was willing to renounce. In the 
 goods of Llanwarne, L. R. 1 P. & 
 D. 306. xii. To a sister of the in- 
 testate; without taking out per- 
 sonal representation to the father, 
 who also had died intestate. In 
 the goods of Peck, 2 Sw. & Tr. 506. 
 xiii. To th.& father in law of the sole 
 next of kin in Australia. In the 
 goods of Jones, 1 Sw. & Tr. 13. 
 xiv. To a mother; without re- 
 quiring her to take out adminis- 
 tration to the father. In the goods 
 of Smith, 2 Sw. & Tr. 508. 
 W.tc; VOL. T. 
 
 
 -Tl: 
 
 XV. To the step mother; for the 
 use and benefit of the sole next 
 of kin, a lunatic without com- 
 mittee. In the goods of Burrell, 
 1 Sw. & Tr. 64. xvi. To a cousin; 
 (limited to carry out certain direc- 
 tions contained in a letter). In 
 the goods of Drinkwater, 2 Sw. & 
 Tr. 611. xvii. To a cousin ; for the 
 nse and benefit of an aged aunt 
 and uncle, the only persons entitled 
 to distribul ion. In the goods of 
 Roberts, 1 Sw. & Tr. 64. xviii. To 
 the guardians of the poor ; limited 
 during the lunacy of the sole next ^ /^ ^^"^ ♦f ^A^ /?) 
 
 of kin, a pauper lunatic. In the 'P^^ <^^ f^-^^.^ (■ <km^ 
 
 goods of Findlay, 3 Sw. & Tr. 265. «^ o^^^ (^.^,,4^ ^^^ 
 
 In the goods of Eccles, 15 P. D. 1. ^^-'^X^ w <*-WULa. 
 
 xix. To the attorney in England of ^ ^^ (r^^ irf "'daJLJi / 
 
 the next of kin abroad; it being 
 
 unknown when he would return. 
 
 In the goods of Escot, 4 Sw. & Tr. 
 
 186. XX. To the next of kin and 
 
 to a person entitled in distribu- 
 tion—jointly ; there being special 
 
 circumstances rendering a joint 
 
 grant convenient. In the goods of 
 
 Grundy, L. R. 1 P. & D. 459. 
 
 xxi. To a stranger ; no next of kin 
 
 or creditor being willing, or able, 
 
 to take the grant. In the goods of 
 
 Bateman, L. R. 2 P. & D. 242. 
 
 xxii. To a stranger; there being 
 
 doubt as to the legitimacy of the 
 
 sole next of kin. In the goods 
 
 of Hopkins, L. R. 3 P. & D. 235. 
 
 xxiii. To a person applijing in pur- 
 suance of an agreement to divide 
 
 the estate ; where doubts had arisen 
 
 as to the legitimacy of the person 
 
 claiming to be next of kin. In 
 
 the goods of MinshuU, 14 P. D. 
 151. XX iv. To the partner of one 
 of the executors of the Will who was 
 mentioned by name in the Will 
 C C
 
 386 
 
 Of General Letters of Administration. [Pt. i. Bk. v. 
 
 person who, prior to the Court of Prohate 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." 
 
 Citation or con- 
 sent of party 
 having a prior 
 right requisite 
 before ail- 
 ministiation 
 granted to 
 another. 
 
 In concluding this subject, it may be expedient to advert 
 to an established rule of the Ecclesiastical Court, viz., that 
 wherever a party has a prior right to administer, the Court 
 requires that he should be cited or consent, before it will 
 grant administration to any other person. And the rule 
 will not be relaxed, notwithstanding the party who has the 
 right has no interest in the property in respect of which 
 the grant of administration is sought (i). But in cases 
 where the Court has a discretion, viz., in cases where the 
 party entitled in priority is so entitled by the practice of 
 
 and was therein requested to act 
 for sucli executor if he were absent 
 at the time of the testator's death. 
 In the goods of Taylor [1892], P. 
 90. Generally the Court will not 
 grant administration iinder this 
 section to a person entitled to a 
 grant in another character, e.g., as 
 a creditor : In the goods of Fair- 
 weather, 2 Sw. & Tr. 588. Nor to 
 the nominee of the person entitled 
 to the grant. Teague v. Wharton, 
 L. K. 2 P. & D. 360. In the 
 goods of Hale, L. R. 3 P. & D. 
 207. But in Farrell v. Brownbill, 
 3 Sw. & Tr. 467, the Court granted 
 administration under this section, 
 with the consent of all parties 
 interested, to their nominee, who 
 took no interest in the property 
 himself. See also In the goods of 
 Clayton, 11 P. D. 76. But see In 
 the goods of Richardson, L. R. 
 2 P. «& D. 244, in which it was held 
 that the consent of all persons 
 interested is not sufficient ground 
 for departing from the general 
 rules as to grants. The section is 
 
 wholly inapplicable where there is 
 no absence of persons entitled to 
 administration and no insolvency : 
 It would then be a mere arbitrary 
 selection on the part of the Court : 
 Haynes v. Matthews, 1 Sw. & Tr. 
 460. The Court will not exercise 
 the power conferred on it by the 
 above section by passing over a 
 person entitled to a grant of 
 admiiaistration in favour of a 
 creditor when the fact of the insol- 
 vency of the intestate is disputed : 
 Hawke r. Wedderburne, L. R. 
 1 P. & D. 594 : unless there is no 
 next of kin competent to take 
 administration : In the goods of 
 Farrands, 1 P. D. 439. 
 
 {t) In the goods of Barker, 1 
 Curt. 592. In the goods of Currey, 
 5 Notes of Cas. 54. When the 
 next of kin is of unsound mind, 
 the practice is that his next of kin 
 must also be cited, in order that 
 they may take administration for 
 his use and benefit if they think 
 proper : Windeatt v. Sharland, 
 L. R. 2 P. & D. 217.
 
 Cli. II. § II.] Who are iyieaiDoble of being Admliiistrators. 387 
 
 the Court, and not by statute, the Court will sometimes 
 dispense with the citation or consent of the party having the 
 prior claim (?<). 
 
 SECTION II. 
 Who are incapable of being Administrators. 
 
 A widow, or next of kin, who would otherwise be entitled, Widow or next 
 may be incapable of the office of administrator on account of hicapaWe of ^ 
 some legal disqualification. office of admin- 
 
 It will be shown in a subsequent part of this Treatise, to 
 whom, upon such an event, the administration is to be com- 
 mitted (x). 
 
 The incapacities of an administrator not only comprise Incapacities of 
 
 ,1 , , ^ n ^ -• j j- Tn 1 administrator.^ 
 
 those persons who have already been mentioned as disqualified 
 for the office of executor (y) but extend to outlawry (z), and 
 bankruptcy (a), or other lawful disability. But it is no 
 incapacity to be an administrator that the next of kin is an 
 alien (b). 
 
 If the next of kin be a minor, administration must be Infancy., 
 granted to another person during his minority ; which species 
 of administration will hereafter be considered separately (c). 
 But on one occasion, administration, limited to the receipts 
 of dividends in the English Funds, was granted by Sir John 
 
 (u) In the goods of Rogerson, estate and effects of the deceased 
 
 2 Curt. 656. In the goods of having been conveyed to her under 
 Southmead, 3 Curt. 28. In the a deed of separation : In the goods 
 goods of Widger, 3 Curt. 55. In of Hardinge, 2 Curt. 640. 
 
 the goods of Burchmore, L. R. (x) See j^osf, Pt. i. Bk. v. Ch. iii. 
 
 3 P. & D. 139. In the goods of § vi. 
 
 Gardiner, 9 P. D. 66. In the (y) See ante, pp. 186—188. 
 
 goods of Webb, 13 P. D. 71. Tlie (2) 1 Roll. Abr. 908. Bac. Abr. 
 
 Court granted administration to Exors. (G.) Toller, 93. 
 
 the sister of a bachelor intestate, (a) Hills v. Mills, 1 Salk. 36. 
 
 upon a proxy of renunciation from Com. Dig. Admor. (B.) 6. 
 
 the mother (a married woman) (6) Com. Dig. Admor. (B.) 6. 
 
 without her husband joining in Upon this subject, see ante, p. 184. 
 
 it, she living separate from her (f) Fast, Pt. I. Bk. V. Ch. III. 
 
 husband, and all right to the § iii. 
 
 c 2
 
 388 Who are mcapable ofhe{7ig Admi7iistr at ors. [I' ti.Bk.Y. 
 
 Nicboll to a minor residuary legatee, 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 {d). 
 
 However, in a subsequent case, Sir C. Cresswell refused to 
 
 grant administration to a minor, though by the law of the 
 
 country where the deceased was domiciled the minor was 
 
 entitled to the grant, and that learned judge appeared to be 
 
 of opinion, that the Court ought not to follow the practice 
 
 of the Court of Domicil, where it was in contradiction to 
 
 the English law, according to which the minor could not take 
 
 upon himself the liabilities which the law casts upon an 
 
 administrator — for instance, he could not execute a bond(e). 
 
 Feme covert : Coverture was no incapacity, even before the Married 
 
 Women's Pro- Women's Property Act, 1882, for the office of administratrix. 
 
 perty Act, Therefore, if a feme covert be next of kin to the intestate, 
 
 1882 : ' '' 
 
 administration shall be granted to her(/). But she could 
 not, before the Married Women's Property Act, take adminis- 
 tration without the consent of her husband (g), inasmuch, 
 among other reasons, as he was required to enter into the admi- 
 nistration bond, which she was incapable of doing. Yet if it 
 could be shown that the husband was abroad, or otherwise 
 incompetent, a stranger might join in the security in his 
 stead (h). In either case the administration was committed 
 to her alone, and not to her jointly with her husband : other- 
 wise, if he should survive her, he would be administrator, 
 contrary to the meaning of the Act (t). 
 since the Since the commencement of the Married Women's Property 
 
 Women's Pro- -^ct, 1882, a married woman may take administration without 
 
 1^""*^^ ^^S ,^ the consent of her husband, and in all respects act in the 
 1S82, 4o & 46 ^ 
 
 Vkt. c. 75. 
 
 (d) In the goods of the Countess (i) Anon. Style, 74. Toller, 91. 
 of Da Cunlia, 1 Hagg. 237. If it were committed to them 
 
 (e) In the goods of the Duchess jointly during the coverture it 
 of Orleans, I Sw. & Tr. 253. might perhaps be good, because, if 
 
 (/ ) Com. Dig. Admor. (B.) 6. committed to the Avii'e alone, the 
 
 Ibid. Admor. (D.) husband for such period may act 
 
 (g) See Bubbers v. Harby, 3 in the administration with or 
 
 Curt. 50. without her assent : Aleyn, 36. 
 
 (h) Toller, 91.
 
 Ch. II. § III.] Of granimg Admmistratio7i. 389 
 
 matter concerning the intestate's estate as if she were a. feme 
 sole. 
 
 SECTION III. 
 
 Of the Mode of granting Letters of Administration, and the 
 practice relating thereto, and Form thereof. 
 
 In pursuance of the authority conferred by the Court of Practice as to 
 Probate Act, 1857, sect. 30 (A'), a great many rules, orders, fJuers of ad- 
 and instructions as to grants of letters of administration were "unistration. 
 made in the year 1862, for the regulation of the practice and 
 of the fees of the Court, in respect both of contentious and 
 non-contentious business, and the guidance both of the prin- 
 cipal and district registrars. They run to so great a length 
 that it would be impracticable to insert them in a treatise 
 such as this. 
 
 It is, therefore, thought better merely to refer the reader 
 for them to the books of practice (l). But inasmuch as these 
 "orders, rules, and instructions" are in fact in a great 
 measure founded on the old practice of the Prerogative Court, 
 it is thought advisable to retain all the statements contained 
 in this and the preceding and some of the following sections 
 of the former editions of this work as to the then established 
 practice of that Court. 
 
 Administration is generally granted by writing under seal. By what in- 
 
 X, 11 • , , T T , • 1 • .1 Ktrument or 
 
 it may also be committed by entry m the registry, without form. 
 letters snh sigillo : but it cannot be granted by parol (/;i). 
 
 By rule 45, P. K. (Non-contentious Business), "In every Time of grant- 
 case where probate or administration is for the first time ^°° ^ "^" 
 applied for after the lapse of three years from the death of 
 
 (k) See aiiie, p. 269, to time further rules have been 
 
 (Z) Tristram and Coote's Practice, added wliich will be found set 
 
 10th ed., Browne on Probate. forth in the above books of prac- 
 
 Sonie further rules, relating prin- tice. 
 
 cipally to pleas to declarations (m) Anon. Show. 408, 409. 
 
 propounding Wills, were made Godolph. Pt. 2, c. 30, s. 5. Toller, 
 
 and issued (to take effect on and 119. 
 
 after 11 Jan. 1866', and fnm time
 
 390 
 
 Of granting Administoxition. [Pt. i. Bk. v. 
 
 Retracting 
 renunciation. 
 
 Intestates 
 Widows and 
 Children Act, 
 1873, Stat. 36 
 & 37 Vict, 
 c. 52: 
 
 the deceased, the reason of the delay is to be certified to the 
 registrars, and should the certificate be unsatisfactory, the 
 registrars are to require such proof of the alleged cause of 
 delay as they may see fit." In the case of a recent death, 
 if a party swear that he is one of the next of kin, the grant 
 will issue without inquiry as to the knowledge of the other 
 next of kin («), but where there are other next of kin equally 
 entitled thereto the registrars may require proof by aflfidaTit 
 that notice of the application has been given to them (nn). 
 
 The practice (by rule 44, P. R. (Non-contentious) is, that 
 letters of administration shall not issue until after the 
 expiration of fourteen days from the death of the intestate : 
 unless for special cause (as that the goods would otherwise 
 perish, or the like,) the judge or two of the registrars shall 
 think fit to order them sooner (o). 
 
 Where a party entitled to the grant of administration has 
 renounced, such renunciation may be retracted before the 
 administration has passed the seal (j^). 
 
 In the case of intestacies where the property of the person 
 dying intestate is of small amount, facility for taking out 
 letters of administration to his estate and effects is given by 
 the Intestates Widows and Children Act, 1873 (36 & 37 Yict. 
 c. 52). 
 
 This Act provides that where the whole estate and effects 
 of an intestate shall not exceed in value the sum of one 
 hundred pounds, his widow, or any one or more of his children, 
 provided such widow or children respectively shall reside at a 
 distance exceeding three miles from the registry of the Court 
 of Probate having jurisdiction in the matter, may apply to 
 the Registrar of the County Court within the district of 
 which the intestate had his fixed place of abode at the time 
 of his death, and the said Registrar shall fill up the usual 
 
 (n) In the goods of Darling, 3 
 Hagg. 565. 
 
 (nn) Rule 28, P. R. ayite, p. 362, 
 nute (n). 
 
 (o) 1 Ought. 323, tit. 219, s. 1, 
 
 note (a). 
 
 (p) West V. Willby, 3 Phillhn. 
 379. See M'Donnell v. Prender- 
 gast, 3 Hagg. 212. A7ite, p. 233.
 
 Ch. II. § III.] Of the Mode of Granting. 391 
 
 papers required by the Court of Probate to lead to a grant of 
 letters of administration of the estate and eflects of the said 
 intestate, and shall swear the applicant and attest the execu- 
 tion of the administration bond according to the practice of 
 the Court of Probate, and shall then transmit the said papers 
 by post to the Registrar of the Court of Probate having 
 jurisdiction in the matter, who shall in due course make out 
 and seal the letters of administration of the estate and effects 
 of the said intestate and transmit them by post to the said 
 Registrar of the County Court to be by him delivered to the 
 party so applying for the same, without the payment of any 
 fee for the same save as is provided by this Act. (Sect. 1.) 
 
 [The Schedule to the Act gives a scale of fees payable 
 according to the value of the estate to be administered. 5s. 
 on £20 or under, and the sum, in addition, of Is. for every 
 i'lO or fraction of ±'10 beyond ^^20.] 
 
 The Registrar of the County Court may require such proof s. 2 : 
 as he may think sufficient to establish the identity and 
 relationship of the applicant. (Sect. 2.) 
 
 If the Registrar of the County Court has reason to believe s. 3 : 
 that the whole estate and effects, of which the intestate died 
 possessed, exceeds in value one hundred pounds, he shall 
 refuse to proceed with the application, until he is satisfied as 
 to the real value thereof. (Sect. 3.) 
 
 The Registrars of County Courts may exercise for the s. 4 : 
 purposes of the Act the powers of Commissioners of the 
 Court of Probate. (Sect. 4.) 
 
 Power to frame rules, orders, &c., for carrying the Act s. 5 : 
 into operation. (Sect. 5.) 
 
 Nothing in the Act is to affect any duty payable on letters s. 6 : 
 of administration. (Sect. 6.) 
 
 The provisions of the Act apply to Ireland. (Sect. 7.) s. 7. 
 
 By the Amendment Act passed in the year 1875 (38 & 39 Amendment 
 Vict. c. 27), the provisions of the preceding Act were ylp^ c 27. 
 extended to children of poor intestate widows, and it was 
 provided that the amending Act shall be read and construed 
 along with and as part of the preceding Act.
 
 392 
 
 Of granting Administration. [Pt. i. Bk. y. 
 
 28 & 29 Vict. 
 c. 111. 
 
 Mode of ob- 
 taining ad- 
 ministration to 
 effects of 
 deceased sea- 
 men, &c. 
 
 Ss. 3, 4. 
 
 To whom Act 
 applies. 
 
 Where residue 
 above 100/. 
 
 S. 6. 
 
 No representa- 
 tion necessary 
 for sums 
 under lOOZ. 
 
 S. 7. 
 
 Where repre- 
 sentation 
 obtained by 
 creditor. 
 
 SECTION IV. 
 
 Of Administration to the effects of Intestate Seamen, Marines^ 
 and Soldiers ; and thereivith of personalty payahle icitli- 
 out representation obtained. 
 
 By Stat. 28 & 29 Vict. c. Ill [Navy and Marines (Property 
 of Deceased) Act, 1865], it is provided : Sects. 3 and 4, that 
 on the death of any person being or having been an officer, 
 seaman, or marine (q), or any person being or having been 
 employed in any of Her Majesty's dockyards or other naval 
 establishment, or in any of the civil departments of the Navy, 
 or entitled to an allowance from the Compassionate Fund, or 
 of any widow entitled to a pension on the establishment of 
 the navy, the amount due by the Admiralty (thereinafter 
 called the residue) shall be disposed of according to the pro- 
 visions of the Act. Sect. 5, that where the residue exceeds 
 1001. the Admiralty shall pay it to the representative of the 
 deceased. Sect. 6, that where the residue does not exceed 
 lOOL representation to the deceased shall not be necessary, 
 but the Admiralty may, if they think fit, require representa- 
 tion to be taken out, and in that case, or if representation is 
 taken out otherwise, shall pay the residue to the representa- 
 tive. Sect. 7, that in the case of a seaman or marine, the 
 Admiralty shall not be bound to pay the residue to his repre- 
 sentative if representation has been obtained by a creditor as 
 such, or by any person without complying with the regula- 
 tions made by Order in Council (Dec. 28, 1865), but shall 
 dispose of the residue under the Act as if representation had 
 not been obtained. 
 
 {q) By sect. 2, "officer" means 
 a commissionecl, warrant, or sub- 
 ordinate officer, or assistant en- 
 gineer in Her Majesty's naval or 
 marine force : " seaman " or " ma- 
 rine" means a petty officer or 
 seaman, non-commissioned officer 
 of marines, or marine, or any other 
 
 person farming part, in any capa- 
 city, of the complement of any of 
 Her Majesty's naval or marine 
 force (not being an officer within 
 the meaning of this Act) or a petty 
 officer or man of the Royal Naval 
 Reserve or Naval Coast Volun- 
 teers. 
 
 i
 
 oil. II, § IV.] I'o Seamen and Marines. 393 
 
 Sect. 8 i^rovides that : " When the residue does not exceed s. 8. 
 
 1 rvrvT 1 • • 1 • i. i ii Disposal of 
 
 lUUt., and representation is not taken out, then, subject to the residue under 
 
 other provisions of this Act, the Admiralty shall, as soon as Jg^presentaTion 
 may be, dispose of the residue as follows : — (1) They shall, if "o* taken out. 
 they think fit, pay the residue to any person showing herself 
 or himself to their satisfaction to be entitled to take out re- 
 presentation to the deceased (otherwise than as a creditor), 
 to the end that the residue may be applied by the person to 
 whom it is so paid in a due course of administration ; and 
 the same shall be so applied accordingly (for which applica- 
 tion the Admiralty may require such security as they think 
 fit) : (2) Or else the Admiralty shall, if they think fit, pay to 
 the persons (if any) beneficially interested in the residue their 
 respective shares thereof : (3) And in cases where the fore- 
 going provisions of the present section do not apply, and the 
 amount of the residue appears to the Admiralty insufficient 
 to cover the expense of representation, the Admiralty shall 
 dispose of the residue in manner prescribed by Order in 
 Council." 
 
 Sect. 9 provides that in the case of a seaman or marine the s. -9. 
 Admiralty shall not make payment to a nominee of the repre- pa^;^men/to be 
 
 sentative or of a person entitled to obtain representation un- ™''^^? ^° , 
 '■ ^ nominee oi 
 
 less in special circumstances it seems to them safe and proper, representative. 
 
 Sect. 10 provides that the Admiralty shall not dispose of S. 10. 
 the residue for three months from the receipt of notice of the disposal of 
 death except by payment to the representative of the deceased, |^^||^"fo*° '^^ 
 unless in special circumstances it seems to them safe and three months, 
 
 except to 
 proper. representative. 
 
 Sect. 11 provides that : " In the case of a seaman or marine S. 11. 
 
 • • T A 1 • ii 1 n Payment of 
 
 where representation is not taken out, the Admiralty shall debts by 
 before disposing of the residue or any part thereof satisfy out ™"^ *^' 
 of the residue (as far as the same will extend) any debt of the 
 deceased of which they have notice, subject to the following 
 conditions : 1st, That the debt accrued due within three years 
 before the death : 2nd, That payment of it is claimed within 
 two years after the death : 3rd, That the claimant proves the 
 debt to the satisfaction of the Admiralty : 4th, That six
 
 394 
 
 Of granting Administration. [Pt. i. Bk. v. 
 
 S. 13. 
 
 S. 15. 
 Exemption 
 from duty. 
 
 47 & 48 Vict, 
 c. 44. 
 
 Extension of 
 meaning of 
 certain words. 
 
 Order in 
 Council of 
 Dec. 28, 1865. 
 
 Proceedings to 
 be taken on 
 death of 
 seaman 
 intestate. 
 
 Procedure in 
 case of officei's, 
 &c., where 
 representation 
 not taken out 
 in England. 
 
 17 & 18 Vict. 
 c. 104, s. 199. 
 
 Where repre- 
 sentation to 
 merchant 
 seamen not 
 necessaiy. 
 
 months have elapsed from the receipt by the Admiralty of 
 notice of the death, and no person has shown herself or him- 
 self to the satisfaction of the Admiralty to be entitled to take 
 out representation to the deceased." And further that a cre- 
 ditor shall be only entitled to obtain payment out of such 
 residue by lodging a claim with the Admiralty and proceeding 
 thereon under the Act. 
 
 Sect. 13 extends the provisions of the Act to unsold effects 
 and money in charge of the Admiralty. Sect. 15 exempts 
 residues under 100/. administered under the Act without re- 
 presentation from probate duty, and from stamp duty on the 
 administration bond where the Admiralty requires such bond. 
 
 By 47 & 48 Vict. c. 44, s. 2, it is provided that all refe- 
 rences in this Act to a pension or naval pension, or to money 
 payable by the Admiralty, shall include a naval pension and 
 a Greenwich Hospital pension, gratuit}-, and allowance within 
 the meaning of the Greenwich Hospital Acts, 1865 to 1883, 
 and any sum due on account of such. 
 
 The Order in Council of Dec. 28, 1865, provides, by Sects. 
 XVIII., XIX., XX., XXI., XXII., for the proceedings to be 
 taken in the case of a seaman or marine dj-ing intestate 
 leaving naval assets to which any person makes claim as 
 widow or next of kin. They are similar to the proceedings 
 in the case of the death of a seaman or marine leaving a Will 
 required by Sects. XIII., XIY., XV., XVI., XVII., of the 
 Order in Council, which have been already referred to at 
 greater length (r). 
 
 Sects. XXIV., XXV., XXVI., and XXVII., provide for pro- 
 cedure in the case of ofl&cers or any person described in Sect. 4 
 of 28 & 29 Vict. c. Ill, dying and leaving naval assets not 
 exceeding lOOL where representation is not required or in- 
 tended to be taken out in England. 
 
 In the case of merchant seamen it is provided by 17 & 18 
 Vict. c. 104, s. 199 (Merchant Shipping Act, 1854), that 
 wages and property of seamen or apprentices not exceeding 
 
 (r) See ante, pp. 336, 337.
 
 Ch. II. § IV.] To Soldiers. 395 
 
 in value 501., subject to the provisions thereinafter contained 
 and to such deductions as the Board of Trade think proper to 
 allow, may be paid over by them to the persons entitled as 
 therein mentioned, without representation being obtained. 
 And by Sect. 201 provision is made for payment by the Board S- 201. 
 
 •^ ^ r J J Payment of 
 
 of Trade of just claims by creditors. debts. 
 
 By Stat. 19 & 20 Vict. c. 41, s. 5 (An Act to make farther 19 & 20 Vict. 
 
 Provision for the Establishment of Savings Banks for Sea- ^g gj^^g j^ 
 
 men), it is provided that moneys due from the Board of Trade savings banks 
 
 for seamen. 
 to the estate of any deceased depositor in any savings bank 
 
 established under the Act shall be paid and applied to the 
 
 same persons and in the same manner and subject to the 
 
 same conditions as provided by the Merchant Shipping Act, 
 
 1854. 
 
 By stat. 11 Geo. IV. & 1 Wm. IV. c. 41, s. 5, as amended n «■ IV. & 
 
 ^ ' ' 1 W. IV. c. 41, 
 
 by 26 & 27 Vict. c. 57, s. 3, the Commissioners of the Chelsea s. 5. 
 
 Hospital with respect to pension or prize money, may autho- Sums not 
 
 rise the agent for pensions, or other proper officer charged in respect of 
 
 with the payment thereof, to pay to any person or persons of soldiers 
 
 who shall prove him, her, or themselves, to the satisfaction of ^^^ be paid 
 
 r ' ' ' without ad- 
 such commissioners, to be the next of kin or legal repre- ministration 
 
 1 - 1 n -IT • 0'" probate. 
 
 sentative, or otherwise legally entitled to any pension, or 
 
 prize money, due to any deceased officer, non-commissioned 
 
 officer, &c., such pension, &c., provided the same does not 
 
 exceed 50/., although no administration or probate shall have 
 
 been obtained. 
 
 By Stat. 2 & 3 Wm. IV. c. 53, s. 19, provisions are made 2 & 3 W. IV. 
 
 C. OOj S. 1*7, 
 
 as to the payment of prize money to the representatives of Prize money of 
 
 , T , T . deceased 
 
 deceased soldiers. soldiers. 
 
 By 27 & 28 Vict. c. 36, s. 3, which is in lieu of Sect. 25 of 27 & 28 Vict. 
 
 c 36 s 3 
 
 2 & 3 Wm. IV. c. 53, it is provided that the Commissioners ^ ' .' . ' 
 
 ' ^ Commissioners 
 
 of Chelsea Hospital may in any case, if they think fit, autho- of Chelsea 
 
 . Hospital may 
 rize their treasurer or secretary to pay the share oi prize authorize the 
 
 money (s) not exceeding 501. belonging to any deceased officer, ghares"not 
 
 exceeding [lOI. 
 (s) "Prize money" by sect. 2, nature of prize or grant in the without repre- 
 includes bounty money, grant, or liantls of the Commissioners for sentation. 
 other allowance of money in the distribution.
 
 396 
 
 Of grayitmg Administration. [Pt. i. Bk. v. 
 
 2 & 3 W. IV. 
 c. 53, s. 26. 
 
 Claim of prize 
 money by the 
 next of kin of 
 foreigners to 
 be paid with- 
 out adminis- 
 tration, &c. 
 
 2 & 3 W. IV. 
 
 c. 53, s. 28. 
 
 Other cases 
 where repre- 
 sentation not 
 necessary. 
 
 soldier, or other person, to or among any person or persons 
 showing themselves entitled to the satisfaction of the Com- 
 missioners thereto or to shares thereof without representation 
 being obtained. 
 
 By 2 & 3 Wm. lY. c. 53, s. 26, it is enacted, that, in all 
 cases of claim for prize money made by the next of kin of 
 foreigners, who shall have been in the' pay of his Majesty as 
 non-commissioned officers or soldiers, and who shall have 
 died intestate, it shall be lawful, when such next of kin shall 
 reside out of his Majesty's dominions, for the treasurer or 
 deputy treasurer of the said Hospital for the time being to 
 pay such claims to such next of kin, or any person or persons 
 duly authorised by such next of kin to receive the same, 
 without the production of letters of administration ; and, in 
 all cases where such foreign non-commissioned officers or 
 soldiers shall have made Wills, it shall be lawful for the 
 treasurer or deputy treasurer, in like manner, to pay and 
 satisfy such claims to the person or persons who, by inspec- 
 tion of the original Will, or an authenticated copy thereof, 
 shall appear to be entitled thereto, or to such person or 
 persons as he, or she, or they shall duly authorise to receive 
 the same, without requiring the probate. 
 
 By s. 28, a creditor taking out administration, is entitled 
 only to the payment of the sum due to him at the time. 
 
 By Stat. 26 & 27 Vict. c. 57, s. 15, and 47 & 48 Vict. c. 55, 
 s. 4, special provisions are made for payment of the residue 
 of the estate of officers and soldiers where it does not exceed 
 lOOL without any representation being taken out to them. 
 And by s. 16 of the former Act provisions are made for the 
 disposal of the residue after the expiration of three months in 
 the case of an officer and one month in the case of a soldier, 
 where such residue does not exceed 100?. and representation 
 is not taken out. 
 
 These provisions of the Legislature for the payment of 
 small sums to persons interested in the estates of deceased 
 sailors and soldiers, without representation obtained, have 
 been extended by other statutes to cases of persons interested
 
 Ch. II. § IV.] Cases ivhere representation unnecessary. 397 
 
 in certain other small estates. Thus by 3 & 4 Vict. c. 110, 3 & 4 Vict, 
 s. 11, it is provided that in the case of the intestacy of a de- " ' • " 
 benture holder depositor or other claimant entitled to receive 
 any sum not exceeding 501. out of the funds of a Loan Members of 
 Society, entitled to the benefit of the Act, the same may be °^^ ^ °^ ^* 
 paid as provided without representation obtained. So by 37 & 38 Vict. 
 37 & 38 Vict. c. 42, s. 29, in the case of Building Societies Mg^j^gjig „/ 
 under the Act, it is provided that a sum not exceeding 50L buiidiug 
 
 societies. 
 
 due to any member or depositor who dies intestate may be 
 paid as provided without representation obtained. And simi- 
 larly in the case of Building Societies still governed by 6 & 7 6 & 7 W. IV. 
 Wm. IV. c. 32 (see Sect. 7 of 37 & 38 Vict. c. 42), sums not "" ^"* 
 exceeding 20Z. may be paid over. So in the case of depositors Depositors in 
 in Trustee or Post Office Savings Banks, it is provided by 
 
 the regulations made in accordance with 50 & 51 Vict. c. 40, ^0 & 51 Vict. 
 
 T . . ., . ' c. 40, s. 3. 
 
 s. 3 (which supersedes previous similar provisions), for the 
 
 nomination by depositors not under sixteen years of age of 
 any person to whom any sum, not exceeding in the aggregate 
 lOOZ., payable to such depositor at his decease, may be paid 
 at such decease, and in the absence of nomination for the 
 payment without representation obtained to the persons and 
 in the manner specified by the regulations. Similar provi- 
 sions for nomination or payment of sums not exceeding lOOZ. 
 without representation obtained have been made in the case 
 of members of Friendly Societies by 38 & 39 Vict. c. 60, 38 & 39 Vict. 
 
 , n -, c. 60, s. 15. 
 
 s. 15 ; in the case of members of registered Trade Unions by Members of 
 39 & 40 Vict. c. 22, s. 10 ; and in the case of members of socTetie^s. 
 Industrial and Provident Societies by 39 & 40 Vict. c. 45, 39 & 40 Vict. 
 
 c 2'^ s 10 
 
 s. 11, as extended in all three cases by 46 & 47 Vict. c. 7, Members of 
 
 „ o trade unions. 
 
 And lastly it is provided by 50 & 51 Vict. c. 67, s. 8, that g. 45, s. 11. ' 
 sums not exceeding 100^. due from a public department in l^e^ibers of 
 
 ° ^ ^ industrial and 
 
 respect of any civil pay, superannuation or other allowance, provident 
 annuity, or gratuity to any deceased person may, if the pre- cr, p, ri v' t 
 scribed public department so direct, but subject to any regu- c. 67, s. 8. 
 
 . Civil servants. 
 
 lations made by the Ireasury, pay over tlie same as there 
 directed without representation obtained.
 
 398 
 
 Of granting Administration. [Pt. i. Bk. v. 
 
 46 & 47 Vict, 
 c. 47, s. 8. 
 
 As to payment is provided 
 
 in certain 
 
 cases of sums 
 
 belonging to 
 
 illegitimate 
 
 persons 
 
 deceased. 
 
 It may here be noted that by 46 & 47 Vict. c. 47, s. 8 
 (Provident Nominations and Small Intestacies Act, 1883), it 
 " If a member of any society who is entitled to 
 make a nomination under this Act or the Acts hereby 
 amended {i.e. to say members of Friendly, Industrial and 
 Provident Societies, Trade Unions, and Savings Banks) is 
 illegitimate, and has died intestate, and without having made 
 any such nomination subsisting at his death, the directors 
 may pay the sum which such member might have nominated 
 to or among the person or persons who, in the opinion of the 
 majority of them, would have been entitled thereto if such 
 member had been legitimate, or, if there are no such persons, 
 then the deposits shall be dealt with as the Commissioners of 
 the Treasury may direct. 
 
 It has not been thought necessary in this Work to set out 
 the above enactments at any greater length ; for further in- 
 formation the reader should consult the Acts cited, and 
 Tristram & Coote's Probate Practice, Part I. Chap. IV. 
 
 \
 
 399 
 
 CHAPTER THE THIRD. 
 
 OF SPECIAL AND LIMITED ADMINISTRATIONS. 
 SECTION I. 
 
 Of Administrations cum testamento annexo. 
 
 xllTHERTO the subject has been confined to cases of Instances of 
 
 complete intestacy. But it often happens, that the deceased, tacy.' 
 
 although he makes a Will, appoints no executor, or else the 
 
 appointment fails : in either of which events, he is said to 
 
 die quasi intestatus (a). The appointment of executor fails, 
 
 1. Where the person appointed refuses to act. 2. Where 
 
 the person appointed dies before the testator, or before he 
 
 has proved the Will; or where, from any of the causes 
 
 specified in a former part of this work, he is incapable of 
 
 acting. 3. Where the executor dies intestate, after having 
 
 proved the Will, but before he has administered all the 
 
 personal estate of the deceased. In all these cases, as well 
 
 as where no executor is appointed, the Court must grant 
 
 an administration, which is called administration with the Administra- 
 
 Will annexed (h) ; and in the last instance it is also called will annexed : 
 
 administration de bonis nonic). The office of an admi- •i/immistratiou 
 
 ^ de boms non, 
 
 nistrator differs little from that of an executor (d) : and it is 
 plain that the Will to which it is annexed must be simi- 
 larly proved, as though probate were taken of it by an 
 executor (e). 
 
 (a) 2 Inst. 397. time : Garrard v. Garrard, L. R. 
 
 (6) See ante, Pt. i. Bk. iii. Ch. iv. 2 P. & D. 238. 
 p. 204, et seq., and notes. But the (c) Com. Dig. Administrator 
 Court ■will not grant administra- (B. 1). Administration de bonis 
 lion with the Will annexed to the non must also be granted, when- 
 residuary legatee with the consent ever an administrator dies before 
 of the executor. It can only do so he has administered all the effects, 
 on the renunciation of probate by See post, sect. 2, p. 411, et seq. 
 the executor, or, after citation has (d) 2 Black. Comm. 535. 
 been served on him, upon his non- (e) Such administration must 
 appearance within the prescribed also be granted, if one of two
 
 400 
 
 Cases not 
 within the 
 statute of ad- 
 ministration. 
 
 Practice to 
 grant adminis- 
 tration to him 
 who has the 
 gi'eatest 
 interest : 
 
 Of Special Administration. [Pt. i. Bk. v. 
 
 It is obvious that many of the cases above contemplated 
 are not within the statute of administration, 21 Hen. VIII. 
 c. 5 (/), which provides only for intestacy, and the refusal of 
 the appointed executor : Consequently in such instances 
 the Court is left to the exercise of its discretion in the choice 
 of an administrator, according to its own practice : and no 
 person has such a legal right to preference as can be enforced 
 by application to the Common Law Courts {g) . 
 
 The rule of practice in the Ecclesiastical Court, in a case 
 where the grant of administration is not within the statute, 
 was to consider which of the claimants has the greatest 
 interest in the effects of the deceased, and decree the 
 administration accordingly, if there are no peculiar circum- 
 stances (/i). Hence, in all cases where no executor is 
 appointed, or the appointed executor fails to represent the 
 
 executors proves the Will and dies, 
 and the other renounces : See ante, 
 p. 206, 233. Com. Dig. Adminis- 
 trator (B. 1) : So if a man name the 
 executor of B. to be his executor, and 
 die in the lifetime of B. ; for until 
 B.'s death, he is in effect intestate : 
 Grayshrcok v. Fox, 1 Plowd. 279, 
 281 : Or if a man name an executor 
 to have authority after a year from 
 his death ; for during the year he 
 is without an executor : 1 Plowd. 
 279, 281. And it seems that in 
 all cases where a man makes his 
 testament and executors, and there 
 is a mesne time in wliich the exe- 
 cutors cannot or wiU not execute 
 the ofi&ce, the Ordinary ought in 
 the mean time to grant adminis- 
 tration : Graysbrook v. Fox, 1 
 Plowd. 279. 
 
 (/) Seean^ff, p. 346. 
 
 {g) Rex V. Bettesworth, 2 Stra. 
 956. In the goods of Ewing, 
 6 P. D. 19. 
 
 1 {h) Wetdrill v. Wright, 2 Phil- 
 im. 243, 248. In fact, in all 
 
 cases, whether within the statute or 
 not (with the exception, according 
 to the old practice, of the single 
 instance of administration to a 
 wife's effects, whose husband has 
 died after her, but before her estate 
 is administered, see ante, p. 349), 
 the right of administration follows 
 the right to the property : In the 
 goods of Gill, 1 Hagg. 341. In a 
 contest for administration, with 
 the Will annexed, the Court pre- 
 ferred the sister of the testator to 
 the widow as it appeared that the 
 sister as a legatee had the larger 
 interest in the property to be 
 distributed : In the goods of 
 Homan, 9 P. D. 61. See ante, 
 p. 350, as to the grant being made 
 to the persons having an interest 
 under the Will of a married 
 woman in preference to her hus- 
 band. See also In the goods of 
 Martindale, 1 Sw. & Tr. 8. In 
 the goods of Pine, L. R. 1 P. & D 
 388.
 
 Cli. in. § I.] Administration cum testamento annexo. 401 
 
 testator, the residuary legatee, if there be one, is preferred residuary 
 
 to the next of kin, and entitled to administration cum ferred to next 
 
 testamento annexo (i). And so strong has been the effort °^^^' 
 
 of the Courts that the right of administration should follow 
 
 the right of property, that although in the case of the 
 
 appointed executor's renunciation, the letter of the statute 
 
 expressly directs the Ordinary to grant administration to 
 
 the next of kin, yet the spirit of the Act has been held, 
 
 both by common lawyers and civilians, to exclude the next 
 
 of kin where there is a residuary legatee; on the ground 
 
 that in such case the next of kin have no interest {k). " The 
 
 reason," said the Court, in Thomas v. Butler (I), "that the 
 
 statute 21 Hen. VIII. required that administration should 
 
 be granted to the next of kin, was, upon the presumption 
 
 that the intestate intended to prefer him : But now the 
 
 presumption is here taken away, the residuum being disposed 
 
 of to another : and to what purpose should the next of 
 
 kin have it, when no benefit can accrue to him by it ? and it 
 
 is reasonable that he should have the management of the 
 
 estate who is to have what remains of it after the debts and 
 
 legacies paid." 
 
 So the residuary legatee, even when there is no present even where 
 
 prospect of any residue, is entitled to administration in residue or 
 
 preference as well as to the next of kin (m), as also to legatees ^^^^^ ^^'^ 
 •■■ \ / ' o Qj^Iy trustee : 
 
 and annuitants (n). So he is entitled though only residuary 
 legatee in trust (o). 
 
 (i) The residuary legatee, it is 1 Hagg. 341, 342. See also ante, 
 
 said, is the testator's choice ; he p. 374. 
 
 is the next person in his election {I) 1 Ventr. 219. 
 
 to the executor : Atkinson v. Bar- (m) Thomas v. Butler, 1 Ventr. 
 
 nard, 2 Phillim. 318. If there are 219. Treat, on Eq. B. 4, p. 2, c. 1, 
 
 several entitled to the residue, s. 6 ; for, being once out of the 
 
 administration may be granted to statute upon the construction of 
 
 any of them : Taylor v. Sliore, the Will, there is nothing ex post 
 
 T. Jones, 162. Com. Dig. Admin- facto can bring him within it : 
 
 istrator (B. 6). Sec Dampier v. 1 Ventr. 219. 
 
 Colson, 2 Phillim. 54. (n) Atkinson v. Barnard, 2 
 
 (/f) Taylor v. Diplock, 2 Phillim. Phillim. 316, 
 
 276, 277. In the goods of Gill, (o) Hutchinson v. Lambert, 3 
 
 W.E. — VOL. I. D D
 
 402 
 
 Of Special Administration. [Pt. i. Bk. v. 
 
 but next of 
 kin have a 
 primd facie 
 right. 
 
 The represen- 
 tative of the 
 residuary lega- 
 tee has the 
 same right. 
 
 However, the next of kin lias a prima facie right, and 
 therefore, where a party claims as, or derivatively from, a 
 residuary legatee, the burden of proof lies on such party (_p). 
 Hence, where the husband appointed his wife executrix and 
 residuary legatee, and he and his wife were drowned in the 
 same ship, the Court granted administration to the next of 
 kin of her husband, on the ground that the next of kin of the 
 wife had not proved her survivorship {q). 
 
 Where the residuary legatee survives the testator, and has 
 a beneficial interest, his representative has the same right to 
 administration cum testamento annexo, as the residuary 
 legatee himself, and is therefore entitled to administration in 
 preference to the next of kin (/•), or to legatees (s). Thus, if 
 an executor be also residuary legatee, and die before probate, 
 or intestate, before he has fully administered the estate, 
 administration cum testamento annexo shall be granted to his 
 personal representative, and not to the next of kin of the first 
 testator (0- Hence, also, though generally speaking, if a 
 
 Add. 27. See, however, contra, 
 as to mere trustees, Coussmaker v. 
 Chamberlayiie, 2 Cas. temp. Lee, 
 243. Boddicott v. Dalzeel, ibid. 
 294. Fawkener i\ Jordan, ibid. 
 327. Post, p. 403 (.x) ; but in no case 
 will the Court decree adminis- 
 tration to substituted trustees as 
 such without the consent of all 
 parties beneficially interested in 
 the trust properties until the trust 
 properties are actually vested in 
 such substituted trustees. Cress- 
 well V. Cresswell, 2 Add. 342. 
 
 {p) The next of kin, as to 
 personalty, stands in the same 
 position as the heir-at-law as to 
 realty : Underwood r. Wing, 4 
 De a. M. & G. 633. 
 
 (q) Taylor V. Diplock, 2 PhilJim. 
 ,_ 261. In the goods of Selwyn, 3 
 
 uob ^ ^''^ ^'OMJ^-- jj^^gg 748. Underwood v. Wing, 
 4 De G. M. & G. 633. S. C. Wing 
 
 '/*'?i. f!/vi 
 
 V. Angrave, 8 H. of L. 183. In the 
 goods of Carmichael, 32 L. J., 
 P. & M. 70. In the goods of 
 Wheeler, 31 L. J., P. & M. 40. 
 See post, Pt. III. Bk. ni. Ch. ii. 
 § v., where the question of survivor- 
 ship among persons whose death is 
 occasioned by the same cause is 
 more fully considered. 
 
 (?•) Wetdrill v. Wright, 2 Phil- 
 lim. 243. See also Thomas v. 
 Baker, 1 Cas. temp. Lee, 341. 
 
 (.<?) Ee Tliirlwall, 6 Notes of 
 Cas. 44. 
 
 (t) Ysted V. Stanley, Dyer, 
 372 a, ex relatione Doctor Drury 
 (Judge of the Prerogative Court). 
 Went. Off. Ex. 82, 14th edition. 
 Godolph. Pt. 1, c. 20, 8. 2. 
 Where the testator made his wife 
 residuary legatee for life, and 
 substituted his daughter after her 
 deatli, and the widow proved the
 
 Ch. III. § I.] Administration cum testamento cuinexo. 403 
 
 feme covert executrix dies intestate, her husband cannot take 
 out administration de bonis non to the first testator, yet if 
 she be also residuary legatee, he may do so {u). But it 
 should seem that where the residuary legatee is a mere 
 trustee, it is the general rule of practice, upon his death to 
 grant the administration, not to his representative, but to 
 such person or persons as have the beneficial interest in the 
 residuary estate (.r). 
 
 Although it was the practice of the Spiritual Court, Although 
 grounded on the principle above stated, to grant administra- ^^xj^ni adminis- 
 tion to the residuary legatee, yet, as he had no legal right to ti'^tioa to 
 
 J o ' .; J o o iMsiduary 
 
 it under the statute, the Court was not hound (as in the case legatee, he 
 of the sole next of kin of a complete intestate) to grant it to i-igi^t to grant. 
 him. Thus, where the testator appointed two executors by 
 his Will, and left the residue of his estate to his son, the 
 executors renounced, and the son moved for a mandamus to 
 obtain administration cum testamento annexo : But the Court 
 refused to grant the writ, on the ground that none of the 
 statutes mentioned the residuary legatee ; and Lord Hard- 
 wicke adverted to a case in Chancery, before Lord Maccles- 
 field, between Wheeler and the Archhishop of Canterhury, 
 where it was held that this sort of administration is not 
 within the statute (^). 
 
 If the residuary legatee declines, it is usual to grant ad- If the resi- 
 
 ... P 1 • ■!-> duary legatee 
 
 ministration cum testamento annexo to the next of km : But declines, ad- 
 it is clear, that when he has no interest he may be excluded, JfsuaUyt ranted 
 and the administration granted to a person who has an interest *» ^i^xt of km : 
 
 Will, and then both she and her berlayne, 2 Cas. temp. Lee, 243. 
 
 daughter died ; it was held that (i/) Rex v. Bettesworth, 2 Stra. 
 
 the personal representative of the 956. In the goods of Evving, 
 
 daughter had a right to adminis- 6 P. D. 19, 25. But where the 
 
 tration cum testamento annexo, in same person is both next of kin 
 
 preference to the representative of and residuary legatee, neither law 
 
 the nifither : Wetdrill v. Wright, nor practice will warrant a refusal 
 
 2 Pliillim. 243. to grant administration cum tcda- 
 
 (u) Richardson v. Seise, 12 Mod. mento annexo to such person, wlien 
 
 306. Rous V. Noble, 2 Vern. 249. the executors renounce : Lin- 
 
 (x) Hutchinson v. Lambert, 3 tlnvuite v. Galloway, 2 Cas. temp. 
 
 Add. 27. Coussmaker v. Cham- Lee, 414. 
 
 I) D 2 
 
 A cU.d(L^JU.
 
 404 
 
 Of Special Administration. [Pt. i. Bk. v. 
 
 but he may lie 
 excluded if he 
 has no in- 
 terest. 
 
 If there is no 
 residuary 
 legatee, the 
 next of kin is 
 entitled ; if 
 the next of 
 kin decline, 
 it may be 
 granted to a 
 legatee or 
 creditor, upon 
 notice. 
 
 in the effects, e.g. a creditor {z). In Furlonger v. Cox (a), 
 the deceased left a widow and a son ; the widow was sole 
 executrix and universal legatee : She renounced probate, 
 and the son contended for the administration against a cre- 
 ditor (b) ; the Court held that the son was excluded, the 
 estate being insolvent, and gave the administration to the 
 creditor (c). 
 
 If the executor fails to take probate, and there is no resi- 
 duary legatee, the next of kin are entitled to administration 
 cum testamento annexo (d). If the next of kin decline it, 
 such administration may be granted to a legatee (e) or to a 
 creditor (/) ; but notice must be given of the application of 
 the legatee or creditor to the next of kin (g). 
 
 (2) West V. Willby, 3 Pbillim. 
 381. See Mayhew v. Newstead, 
 1 Curt. 593, in which case the 
 executor and residuary legatee 
 having assigned his interest to 
 trustees for the benefit of his 
 creditors, administration ■nath the 
 Will annexed was granted to two 
 of the trustees, he having been 
 first cited. 
 
 (a) Prerog. Jan. 1811 : cited by 
 Sir John Nicholl, in 3 Phillim. 
 381. 
 
 (6) But, unless in cases where 
 the next of kin has no interest in 
 the property, a creditor cannot be 
 allowed to contest the right to 
 administration. Ante, p. 386, 
 n. ({). And a residuary legatee, 
 who has renounced, may retract 
 his renunciation and claim the 
 administration in preference to 
 a creditor, though the estate is 
 alleged to be deeply insolvent : 
 In the goods of Waters, 2 Eobert. 
 142. 
 
 (c) Lord Mansfield, in The Arch- 
 hishop of Canterbury v. House, 
 Cowji. 140, said, that " no next of 
 kin ever struggled for the adminis- 
 
 tration of an insolvent estate with 
 an honest view." 
 
 (<T) Kooystra v. Buyskes, 3 Phil- 
 lim. 531. Administration with a 
 Will annexed, in which there was 
 no executor nor residuary legatee, 
 was decreed to two aunts of the 
 deceased, legatees in the Will, and 
 daughters of the next of kin, a 
 grandmother, she being nearly 
 ninety years of age, and incapable : 
 i?e Hinckley, 1 Hagg. 477. Ae^t^du.dA, 
 
 (e) If there be a legatee for 
 life and a legatee substituted, the 
 practice is to prefer the former. 
 But the Court viHl depart from 
 its practice, when, were it to be 
 followed, a question of construction 
 of the Will would, in efi"ect, be 
 determined, and will make such a 
 grant as will leave the question 
 open : Brown v. Nicholls, 2 Robert. 
 399. 
 
 ( / ) Kooystra v. Buyskes, 3 
 Phillim. 531. Snape v. Webb, 2 
 Cas. temp. Lee, 411. 
 
 (g) 3 Phillim. 531. Com. Dig. 
 Administrator (B. 6). See also 
 Woolley V. Green, 3 Phillim. 314.
 
 CL. III. § I.] Adininistratlon cum testamento annexo. 405 
 
 In all these cases, where a party has a prior title to a grant, What citations 
 
 , .,,„ ,.. ,. . •ij_ii ^^'^ necessary 
 
 he must be cited beiore administration is committed to any before grants 
 other person {h). Therefore the executor, if there bo one, ^im''"''"*'' 
 must be cited before a grant to a residuary legatee (i), a resi- 
 duary legatee before a grant to a specific legatee, and so on, 
 through all the gradations of priority. So if there is a testa- 
 mentary disposition without an executor, it has been laid 
 down that the party, in whose favour the disposition is made, 
 must cite the next of kin, before he can have administration 
 'Cum testamento annexo (k). 
 
 The Court will grant administration, with the Will annexed, 
 to one of two universal legatees, a decree with intimation 
 having issued in the name of the other, who is since dead (0- 
 So administration, with the Will annexed, in which there was 
 no executor, may be granted to one of two legatees, a decree 
 with intimation having issued in their joint names against a 
 residuary legatee (m). 
 
 When the executor resides out of the jurisdiction, adminis- Administra- 
 tion to attor 
 
 (/i) 111 the goods of Barker, 1 property than that specifically cle 
 
 Curt. 592. Ante, p. 386, note (t). scribed in the Will, Sir Cresswell 
 
 (i) If there be two executors, Cresswell held, that the next of 
 
 and one alone has proved the Will, kin ought to have been cited, but 
 
 power being reserved to the other, appears to have given the appli- 
 
 both the executors must be cited : cant his option of taking adminis- 
 
 In the goods of Leach, Dea. & Sw. tration limited to the property 
 
 294, See Le Briton v. Le Quesne, disposed of by the Will : In the 
 
 2 Cas. temp. Lee, 261, as to the goods of Watson, 1 Sw. & Tr. 110. 
 
 citation of an executor who has But on a subsequent occasion 
 
 already proved the Will in a court when this case was cited, the 
 
 out of the jurisdiction, in a case learned judge said that it was an 
 
 where administration is required exceptional case, and that the 
 
 by the residuary legatee, in order general rule was against such a 
 
 to recover a debt within the juris- grant, which should not be made 
 
 diction. unless some very strong reason be 
 
 {k) 3 Bac. Abr. 41, tit. Execu- given : In the goods of Watts, 1 
 
 tors (E. 8). Accordingly in a case Sw. & Tr. 538. 
 where an application was made (l) Law v. Campbell, 1 Hagg. 
 
 for a grant of administration with 55. 
 
 the Will annexed to the sole {in) Pickering v. Pickering, 1 
 
 legatee, on an affidavit, that the Hagg. 480. See ante, p. 378. 
 testator died possessed of no other
 
 406 
 
 Of Special Administration. [Pt. i. Bk. v. 
 
 Consequence 
 of tlie return 
 of the execu- 
 tor. 
 
 ney to execu- tration ciiDi testaiiiento annexo maybe granted to another 
 person under a letter of attorney from the executor for bis 
 use and benefit (/(). It should seem that a Will thus proved 
 by the attorney of the executor is the same thing as if actually 
 
 its effect : proved by himself. And, consequently, the chain of repre- 
 
 sentation is not broken by his death, if he has himself appointed 
 
 it is revocable, au executor (o). Again, the letter of attorney is revocable; 
 and when the executor revokes it and desires probate, the 
 Court is bound to grant it to him (p)- 
 
 On one occasion, administration, with the Will annexed, 
 had been granted for the use and benefit of the executor, 
 then at sea, to his attorney : The executor having returned 
 to England, and being desirous of probate, and the adminis- 
 tration with the Will annexed having been brought in by the 
 attorney, (with the usual affidavit, " that no action at law, or 
 suit in equity, had been brought by or against him as admi- 
 nistrator,") had been sworn as executor : And he prayed that 
 the administration should be declared to have ceased and 
 expired, and that probate should be granted to him : The 
 application, in respect to the letters of administration, was 
 objected to in the Registry, on the ground that in some 
 similar cases the administration had been expressly revoked : 
 In support of the motion, it was urged that the administra- 
 tion, having been rightly granted, ought not to be revoked : 
 A revocation which was unnecessary might possibly be inju- 
 rious ; for it might render some of the administrator's acts 
 void : and would certainly be inconvenient : for the probate 
 would be considered at the Stamp Office as an original, and 
 consequently probate duty required to be paid as for an ori- 
 ginal grant, and the duty, already paid on the administration, 
 could only be recovered upon a special application to the com- 
 missioners, supported by affidavit : whereas, if the adminis- 
 tration were declared to have ceased and expired, the probate 
 
 {n) See ante, p. 376. In the 
 goods of Barker [1891] P. 251. 
 
 (o) In the goods of Bayard, 1 
 Robert. 768. In the goods of 
 
 Murguia, 9 P. D. 236. 
 
 {'p) Pipon V. Wallis, 1 Cas. temp, 
 Lee, 402.
 
 Ch. III. § I.] Administration cum testamento annexo. 407 
 
 would pass at the Stamp Office upon a free stamp : The 
 Court (Sir John Nicholl) declared the administration cum 
 testamento annexo to h.3L\e ceased and expired; and directed 
 that, in future, grants, durante ahsentid, to attorneys, should 
 be limited " for the use and benefit of resident 
 
 at , and until the executor (or the party entitled 
 
 to the administration) should duly apply for, and obtain, pro- 
 bate or administration ((/)." 
 
 On the death of the executor the letters of administration Consequence 
 
 ,1 p n 1 xi i> J_^ T • • i J of the death of 
 
 cease to be ol any force ; and therefore the admmistrator ^i^g executor. 
 
 cannot make a good title, if he sells leasehold property of the 
 
 deceased, unless he can warrant to the purchaser that the 
 
 executor is alive (r). 
 
 It may here be observed, that a person who is entitled to The executor 
 
 probate as executor cannot be allowed to take out administra- to take ad- 
 
 tion cum testamento annexo (notwithstanding^ the inconvenient ™'iiis',ration 
 
 ^ o cum testamento 
 
 effect which the taking probate ma}^ in some cases have, by annexo. 
 reason of continuing the chain of representation to some other 
 party whose executor the testator happens to be). For if a 
 person be entitled to a grant in a superior character, the 
 Court will not make that grant to him in an inferior charac- 
 ter (s). Accordingly, by rule 50, P. R. 1862 (Non-contentious), A. person en- 
 
 1 ^ P TiTMi r. titled to the 
 
 Mo person who renounces probate of a Will or letters of giaut in a 
 administration of the personal estate and effects of a deceased gU^racter not 
 person in one character is to be allowed to take a representa- ^° t*^^ i* '"^ 
 
 an inferior. 
 
 tion to the same deceased in another character (f)." 
 
 {([) In tlie goods of Cassidy, 4 129. 
 
 Hagg. 360. Webb v. Kirby, 7 De {t) As to the construction of 
 
 G., M. & G., .381. As to tlie effect tliis rule, see In the goods of 
 
 of the death of tlie executor, see Loftus, 3 S\v. & Tr. 307, which 
 
 Suwerkrop v. Day, 8 A. & E. 624. decides that it is competent for 
 
 (r) Webb v. Kirliy, 7 De G., M. the Court to treat the rule as 
 
 & G. 376, reversing the decision of intended for the general guidance 
 
 the V.-C., 3 Sm. & G. 333. of the business in the Registry, 
 
 (s) In the goods of Bullock, and capable of modification by the 
 
 1 Robert. 273. In the goods of Court, if sufficient reason can be 
 
 Richardson, 1 Sw. & Tr. 515. In shown for departure from it. 
 he goods of Morrison, 2 Sw. & Tr.
 
 408 
 
 Of Special Administration. [Pt. i. Bk. v. 
 
 SECTION II. 
 
 1. Conse- 
 quences of the 
 death of an 
 executor : 
 
 ■where sole or 
 surviving 
 
 executor dies 
 after probate 
 intestate, 
 there must be 
 administration 
 de bonis non : 
 
 Of Administration de bonis non. 
 
 This subject may be treated witli reference, 1st, to the 
 death of an executor : 2ndly, to the death of an adminis- 
 trator. 
 
 1. With respect to the consequences of the death of an 
 executor. If a sole executor happens to die, without having 
 proved the Will, the executorship, as there has before been 
 occasion to observe («), is not transmissible to his executor, 
 but is wholly determined, and administration cam tcstamento 
 annexe must be committed to the person entitled, according 
 to the rules pointed out in the preceding section. 
 
 When the administration is granted under such circum- 
 stances, although the executor may have administered in 
 part by disposing of the testator's effects, &c., yet the 
 administration shall not be de bonis non administratis, but 
 an immediate administration : because, although the acts 
 done by the executor are good (x), the administering is an 
 act in imis, of which the Court of Probate cannot take 
 notice {y) . 
 
 If one of several executors dies before, or after, probate, 
 no interest is transmissible to his own executor, but the 
 whole representation survives to his companion {z). Where 
 such surviving executor, or where a sole executor, dies after 
 probate, having made a Will, appointing his own executor, 
 the entire representation of the original testator will be 
 transmitted to him {a). But where such surviving executor, 
 or sole executor, dies after probate, intestate, then no interest 
 is transmissible to his own administrator {b) : but administra- 
 tion of another sort becomes necessary, which is called ad- 
 
 1 
 
 (?0 Ante, pp. 205, 257. 
 (:r) See ante, p. 250. 
 (t/) Wankford v. Wankford, 1 
 Salk. 308, by Holt, C. J. 
 {z) Ante, p. 206. 
 
 (rt) Ante, i^p. 204, 206. The 
 rule is the same, though the 
 original Probate was limited : In 
 the goods of Beer, 2 Eobert. 349. 
 
 (6) Ante, p. 204.
 
 Cli. III. § II.] Of Administration de bonis non. 409 
 
 ministration dc bonis non, that is, of the goods of the original 
 testator left unadmiuisterecl hy the former executor (e). 
 
 So if the original testator dies abroad, or in the colonies, so where the 
 and his executor proves the Will there, and then dies, appoints his 
 having appointed his own executor, who proves the latter ?7" executor 
 
 ° ^ -"^ ^ if the original 
 
 Will in the Probate Court here, it has been held, that the Will was not 
 
 ,„ proved in this 
 
 executor oi the executor does not represent the first testator : country : 
 But that in order to constitute such a personal representative 
 liere, administration de bonis non must be obtained in the 
 Probate Court in this country {d). 
 
 In a case where the estate of a testatrix had been adminis- "wtere estate 
 
 , . . administered 
 
 tered except as to one legacy, the Court granted admmistra- except as to 
 tion with Will annexed de bonis non to the legatee without °"^ ^°*^^ " 
 requiring the representative of the executor, or residuary 
 legatees to be cited (e). Ancl upon an application for a grant 
 of administration de bonis non, where it appeared that the 
 residuary legatee, resident abroad, had had notice by letter, 
 and that he had no beneficial interest, there being actually no 
 residue, the grant was made to a specific legatee, without 
 requiring the residuary legatee to be cited or to renounce (/). 
 
 Again, before the Court of Probate Act (1857), 20 & 21 so where one 
 
 TT- • P T T 1 °* several 
 
 Vict. c. 77, if there were several executors, and one alone executors 
 proved the Will, and the rest renounced, upon the death of t^eTg^g't^^ 
 him who had proved, no interest was transmissible to his renounce, and 
 
 he who has 
 
 executor ; but the representation survived to the co-executors, proved dies : 
 who might retract their former renunciation, and assume 
 the executorship (g) ; but if they persisted in refusing to act, 
 the sort of administration just mentioned became necessary. 
 
 But now by the 79th section of that statute, " where any Stat. 20 & 21 
 person after the commencement of this Act renounces s. 79. ' ' 
 probate of the Will of which he is appointed executor or one 
 
 (c) Ante, p. 205. Tingrey v. 162. 
 
 Brown, 1 Bos. & Pull. 310. (/) In the goods of "Wilde, 13 
 
 (d) Twyford v. Trail, 7 Sim. 92. P. D. 1. 
 
 In the goods of Gaynor, L. R. 1 (g) Arnold v. Blcncowe, 1 Cox, 
 
 P. & D. 723. 420. Ante, pp. 206, 233. 
 
 (e) In the goods of King, 8 P. D.
 
 410 
 
 Of Special Administration. [Pt. i. Bk. v 
 
 Who is 
 
 entitled to ad- 
 ministration 
 de bonis non 
 cum testumento 
 annexo. 
 
 Administra- 
 tion de bonis 
 non not neces- 
 sary when 
 there is an 
 administration 
 durante 
 minoritate of 
 an executor of 
 an executor. 
 
 of the executors, the right of such person in respect of the 
 executorship shall wholly cease, and the representation to 
 the testator and the administration of his effects shall and 
 may, without any further renunciation, go, devolve and he 
 committed in like manner as if such person had not been 
 appointed executor " (//). 
 
 This administrator de bonis non will, when appointed, be 
 the only representative of the party originally deceased. 
 Such administration will evidently be committed cum testa- 
 mento annexo, and will be granted to the person entitled 
 according to the general principles already developed in 
 cases of administration cum testamento annexo. In many 
 instances, it is obvious, he will be a different person from 
 the representative of the deceased executor ; but if the 
 executor were also beneficially residuary legatee, his repre- 
 sentative will likewise be entitled to the administration de 
 bonis non to the original testator (0- 
 
 Where administration durante minoritate was in the first 
 instance granted to the mother of an infant, a part residuary 
 legatee, on the renunciation of the executor : The infant 
 died : By his death the administration ceased, and the 
 mother became entitled, as widow, to the lapsed residue 
 jointly with another infant : Under these circumstances, 
 administration de bonis non, with the "Will annexed, was 
 decreed to her (A) . 
 
 It has been said, upon the authority of Limmer v. Every, 
 as reported by Croke (l), that where an executor dies, having 
 appointed an executor, who is a minor, and an administrator 
 durante minoritate is appointed, he has no authority to 
 intermeddle with the e£fects of the original testator, but an 
 administration de bonis non must be granted (?;i). However, 
 as the case is reported by Leonard {n), the point decided was 
 
 (Ji) See ante, pp. 233, 234. 
 (i) See ante, p. 402. 
 {k) Akers v. Dupuy, 1 Hagg. 
 473. 
 
 (/) Cro. Eliz. 211. 
 
 (r/i) 3 Bac. Abr. 13, Exors. (B. 1). 
 Toller. 118. 
 
 (}i) 4 Leon. 58, nomine Limver 
 t'. Evorie.
 
 Cli. III. § II.] Of Admuust ration de honis non. 411 
 
 merely that such au administrator should sue as adminis- 
 trator of the first testator: And in a later case (o), it was 
 held, on an application for a prohibition, that although an 
 administrator of an executor is not an administrator to the 
 first testator, yet an administrator durante minorc atatc is 
 in loco executoris, and may be sued as the executor of an 
 executor may (p). 
 
 2ndly. With respect to the consequences of the death of 2. Conse- 
 quences of the 
 an administrator, or of one entitled to administration. It death of an 
 
 has already been shown, that if a party who, as next of kin ^'^f^ne'"^ °'"' 
 to the intestate at the time of his death, was entitled to entitled to aJ- 
 
 ministration : 
 
 administration, dies before letters of administration are ob- 
 tained, his representative is entitled to the grant in preference 
 to one who has no beneficial interest in the eff'ects, although 
 he may have become next of kin at the time the grant is 
 required ((^). 
 
 Where administration has been granted to two and one of one of 
 
 _ _ _ _ several ad- 
 
 dles, the survivor will be sole administrator (;•), for it is not ministrators : 
 
 like a letter of attorney to two, where by the death of one, 
 
 the authority ceases, but it is an office analogous to that 
 
 of executor, which survives (s). Upon the death of such of a surviving 
 
 _ _ _ or sole ad- 
 
 surviving administrator, or of a sole administrator, in order ministrator. 
 
 to eff'ect a representation of the first intestate, the Court, 
 whether the administrator died testate or intestate, must 
 appoint an administrator de hoiiis non ; for an administrator 
 is merely the officer of the Court, prescribed to it by Act 
 of Parliament, in whom the deceased has reposed no trust ; 
 and therefore on the death of the administrator, no autho- 
 rity can be transmitted by him to his executor or admi- 
 
 (o) Anon. 1 Freem. 288. Talbot, after liearing civilians. 
 
 (p) See also Norton v. Moly- Eyre v. Lady Shaftsbury, 2 P. 
 
 neux. Hob. 246 ; and Mr. Sinirke's Wms, 121. Com. Dig. Adminis- 
 
 note, in his edition of Freeman, trator (B. V). Jacomb v. Har- 
 
 p. 288. wood, 2 Ves. Sen. 268. 
 
 {q) Ante, pp. 374, 375. (.s) Adam v. Buckland, 2 Vern. 
 
 (r) Hudson v. Hudson, Cas. 514. 3 Bac. Abr. 56, tit. Execu- 
 
 temp. Talb. 127, decided by Lord tors (G).
 
 412 
 
 Of Special Administration. [Pt. i. Bk. v. 
 
 Who is en- 
 titled to ail- 
 niinistratiou 
 de honis noil 
 on the death 
 of the original 
 administrator : 
 
 Rule now 
 established. 
 
 nistrator, but it results to the Court to appoint another 
 officer (i). 
 
 It remains to be considered who, upon the death of the 
 administrator, is entitled to be appointed administrator de 
 honis noil to the original intestate. 
 
 The Ecclesiastical Judges have on several occasions laid 
 down, that in all that regards the obligation of the statutes of 
 administration on the Court, in the grant of administration, 
 no distinction exists between an original and a de bonis 
 non administration {u). And in Kindleside v. Cleaver, 
 the Common Law Judges Delegates expressed the same 
 opinion (x). Accordingly, upon the death of an original 
 administrator, a person who was next of kin at the time of 
 the death of the intestate, has been regarded as entitled, 
 under the statute of Hen. VIII., to the de bonis non grant, 
 in preference to the representative of the original adminis- 
 trator, or to the representative of any other next of kin at the 
 time of the death ; and hence, in the case where a husband 
 takes out administration to his wife, and dies, the Spiritual 
 Courts for a long time considered themselves bound by the 
 statute (in contravention of convenience, and of the general 
 principle that the right of administration shall follow the 
 right of property), to commit administration de bonis non 
 of the wife, if required, to the next of kin of the wife at the 
 time of her death, as having an absolute statutable right ; 
 although the beneficial interest in her effects be in the repre- 
 sentative of the husband (y). But the practice has been 
 altered in this respect : And the rule now established, on the 
 principle that the grant ought to follow the interest, is, that 
 
 (t) 2 Black. Comm. 506. 
 
 («) Dr. Bettesworth, in Kindle- 
 side V. Cleaver, 1 Hag,q. 345. 
 Dr. Hay, in Walton v. Jacobson, 
 1 Hagg. 346. 
 
 (x) See 2 Hagg. Appendix, 170. 
 
 (y) Kindleside v. Cleaver, 1 
 See atite, pp. 350, 351. 
 
 Yet instances may be found, where, 
 notwithstanding the statute, the 
 Court have denied administration 
 to the next of kin, on the ground 
 of his having no interest. See 
 Young V. Pierce, 1 Freem. 496, 
 Ante, p. 374.
 
 Ch. III. § II.] 0/ Administration de honis non. 413 
 
 the admiuistration will be granted to the representatives of 
 the husband, unless it can be shown that the next of kin of 
 the wife are entitled to the beneficial interest (z). 
 
 J^gain, it has been held that the statutes only regard the 
 next of kin at the time of the death of the intestate, and not 
 the next of kin at the time a second grant is wanted ; and 
 therefore when the next of kin, who were so at the time of 
 the deceased, are dead, the Court has power, independent 
 of the statute, to grant administration cle honis non, at its 
 discretion according to its own rules (a). Jn the guidance 
 of which discretion, the established principle is (as in the 
 case of administration cum testamento annexo), that if there 
 are no peculiar circumstances, the administration shall be Administra- 
 committed to him who has the greatest interest in the effects ,1°,^ granted to 
 of the original intestate (?>). Thus, in Savage Y.Blythe{c), the executor 
 the intestate died, leaving a brother and several nephews and administrator 
 nieces : Administration was granted to the brother, and at the gj-eatett inte- 
 end of the year he distributed, taking the securities of the 
 deceased upon himself : he afterwards died, leaving the secu- 
 rities due to the original deceased outstanding ; and having 
 made a Will, and appointed an executor : a decree was 
 taken out against the nephews to show cause why adminis- 
 tration de bonis non should not be granted to the executor 
 of the brother administrator: The nephews appeared, and 
 prayed administration as next of kin under the statute : But 
 Sir Wm. Wynne held that the statutable right was confined 
 to the next of kin at the time of the death, and granted the 
 administration de honis non to the executor of the deceased 
 administrator, on the ground that the interest was clearly in 
 him. In the subsequent case of Almes v. Almcs (d), the 
 same Judge again granted similar administration, under 
 nearly the same circumstances, upon the same grounds ; and 
 
 (a) Fielder v. Hanger, 3 Hagg. (6) But the Court is not obliged 
 
 769. In the goods of Pountney, to grant to the largest interest : 
 
 4 Hagg. 290. Ante, p. 351. 1 Cas. temp. Lee, 177. 
 
 (a) Cardale v. Harvey, 1 Cas. (c) 2 Hagg. Appt^'udix, 150. 
 
 temp. Lee, 179. (d) Ibid. 155. 
 
 rest in the 
 eiTects.
 
 -iU 
 
 Of special Administration. [Pt. i. Bk. v. 
 
 Citation of 
 next of kin 
 before grant 
 of administra- 
 tion dc bonis 
 non. 
 
 mentioned the case of Loregrove v. Lewis (e), decided by Sir 
 George Hay, and affirmed by the Delegates, where the ad- 
 ministration was granted to the executor of the original ad- 
 ministrator, to the exclusion of those who were next of kin 
 at the time of the grant (/). So in the instance of 
 administration de bonis non to the effects of the wife, 
 after the death of the husband administrator, if the persons 
 who, at the time of her death, were her next of kin are dead, 
 it has always been held that the Court may exercise its 
 discretion (f/). 
 
 The proposition, however, that if all who were next of kin 
 at the time of the death of the intestate are dead, then the 
 representative of such next of kin, being entitled to the 
 beneficial interest, is also entitled to administration de bonis 
 non, must, it appears, be understood with this limitation, viz., 
 that a person originally in distribution is preferred to the 
 representative of the next of kin (/?). 
 
 It has already been observed, that upon the death of a 
 creditor administrator, a party who was next of kin at the 
 time of the death of the intestate may come in and claim 
 administration de botiis non{i). And though all the next 
 of kin at the time of the death are dead, it should seem that 
 no Grant of administration de bonis non, however limited in 
 its object, can be obtained after the termination of the 
 creditor administration, without citing those who are next 
 of kin at the time the grant is required. Thus, in Skeffington 
 V. Wliite (k), the intestate died in 1790, leaving two sisters 
 entitled in distribution : They renounced, and administration 
 
 (e) S. C. 2 Hagg. Appendix, 
 152, n. (a). 
 
 (/) See also In the goods of 
 Middleton, 2 Hagg. 60. 
 
 (g) By Sir John NichoU, In the 
 goods of Gill, 1 Hagg. 344. 
 
 (h) See the Appendix to 2 Hagg. 
 p. 157. But this rule, in the dis- 
 cretion of the Court, may be varied 
 bv "rantincc the -administration to 
 
 the next of kin : In the goods 
 of CaiT, L. E. 1 P. & D. 291. 
 According to the general practice, 
 a party having a direct interest 
 is preferred to those entitled in a 
 rejiresentative character : In the 
 goods of Middleton, 2 Hagg. 61. 
 
 (i) Aiite, p. 382, note (i). 
 
 (k) 1 Hngg. 6.99.
 
 Cli. III. § III.] Of Limited Administrations. 415 
 
 was decreed in 1791, to a creditor, who administered the 
 estate till 1806, when he died : the sisters did not come 
 in and take administration de bonis non ; and from that 
 time no further representation was taken out till 1827, when 
 an administration de bonis non was granted, without citing the 
 then next of kin (the son of one of the sisters, who were 
 both dead), limited to assign a certain leasehold property of 
 the deceased, not severed in his lifetime, but mortgaged 
 during the original creditor administration : In March, 1828, 
 Sir Lumley Skeffington, the then next of kin in whom all 
 the beneficial interest in the deceased's estate was vested, 
 obtained a decree to show cause why the latter administration 
 should not be revoked, on the ground of his not having 
 been cited when the limited grant was made, and on a 
 suggestion that such grant had been surreptitiously obtained, 
 and that there was a surplus belonging to the deceased's 
 estate : Sir John Nicholl thought the citation under the 
 circumstances was not necessary, but that Sir Lumley was 
 barred by time, by events, and by his own laches ; and that 
 there was no ground for revoking the grant : However, on 
 appeal to the Delegates, the Court pronounced for the 
 appellant, directed a monition to issue to call in the 
 limited administration, and condemned the respondent in 
 costs (Z). 
 
 SECTION III. 
 
 Of Limited Administrations. 
 
 Besides the Administrations already discussed, which 
 extend to the whole personal estate of the deceased, and 
 terminate only with the life of the grantee, it is competent 
 to the Court to grant limited administrations, which are 
 confined to a particular extent of time, or to a specified 
 subject-matter. It will be the object of the present and 
 three following sections, to consider this species of grant. 
 
 (0
 
 416 
 
 Of Limited Administrations. [Pt. i. Bk. v. 
 
 Rule 29, P. R. 
 1862. 
 
 Consent or 
 citation of 
 persons en- 
 titled to 
 general grant. 
 
 Rule 30. A 
 person entitled 
 to general 
 grant not to 
 take a limited 
 
 By Rule 29, P. R., " 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." 
 
 By Rule 30, "No person entitled to a general grant of 
 administration of the personal estate and effects of the de- 
 ceased will be permitted to take a limited grant except under 
 the direction of the Judge." 
 
 "When neces- 
 sary : 
 
 Administration durante minore estate. 
 
 If the person appointed sole executor, or he to whom, in 
 case of intestacy, the right to administration has devolved 
 under the statutes, be within age, a peculiar sort of adminis- 
 tration must be granted, which is called an administration 
 durante minore estate. In the former case, it is obviously a 
 species of administration cum testamento annexo. 
 
 If there are several executors, and one of them is of full 
 age, no administration of this kind ought to be granted ; 
 because he who is of full age may execute the Will (m). 
 But it has been held differently in the case of several next 
 of kin in equal degree, entitled under an intestacy. In Cart- 
 rir/ltfs case (n), the intestate died leaving four grandchildren 
 whereof one was of age, and the other three were minors ; 
 and the administration was contested betwixt her that was 
 of age and the mother and guardian of the other three ; and 
 this case was argued at Serjeants' Inn, before the two Chief 
 Justices and the Chief Baron, ct al., who granted it to the 
 mother, as guardian to the three, durante minore estate; 
 though it was strongly urged, that she that was of age being 
 capable, and the others incapable, she ought to be preferred : 
 But, on the other hand, it was laid down, that since the 
 statute 22 & 23 Car. II. c. 10, which entitled them all to a 
 distribution, the interest of the three preponderated, and 
 
 (m) Pigot and Gascoigne's case, 
 Brownl. 46. yln<e,p. 185. There 
 are some authorities to the con- 
 trary : See Colborne v. Wright, 
 
 2 Lev. 240. Bac. Abr. Executors 
 (B. 1). 
 
 («) 1 Freem. 258. Ante,^.Zm.
 
 €h. III. § III.] Administration durante minore estate. 417 
 
 tlierefore that was to be regarded ; and they compared it to 
 the case of a residuary legatee who shall be preferred before 
 the next of kin (o). 
 
 This sort of administration has been frequently held not 
 to be within the statute of 21 Hen. VIII. c. 5. And conse- 
 quently, it is discretionary in the Court to grant it to such 
 person as it shall think fit (j)). Thus, in the case of Rex v. 
 Bettesivorth(q), a. majidamus -was moved for, to be directed no mandamus 
 
 ,,iTi piT-i '/^ ^^y *° grant it 
 
 to the Judge of the Prerogative Court, to grant administra- to a particular 
 tion to one Smith, during the mincTrity of his two infant ^®'^°"* 
 grandchildren : The Judge had approved of him as a proper 
 person, but insisted on his giving security to distribute the 
 effects in equal proportions among the creditors : The Court 
 were of opinion that the Judge had a discretionary power in 
 granting administration durante minore estate, and there- 
 fore that in this case he might insist upon reasonable or 
 equitable terms, or otherwise refus3 administration to the 
 claimant : But they said if a mandamus had been moved for, 
 to grant administration generally, they would have granted 
 it(r). 
 
 In the exercise of this discretion it was the practice of the Practice of 
 Spiritual Court to grant the administration to the guardian Court to grant 
 whom that Court had a right by law to appoint for a personal ^^ ^ijf'**'^'^*'*^'^ 
 estate (s). With respect to the appointment of guardian a guardian : 
 
 (o) See ante, p. 401. (70) to Co. Lit. 88, b, by Har- 
 
 (p) West V. Willby, 3 Phillim. grave, in which the right of the 
 
 379. Ecclesiastical Court to appoint a 
 
 iq) 1 Barnard, 370, 425. guardian for the personal estate is 
 
 (r) The discretionary power of doubted. In the case of In the 
 
 the Spiritual Court is also recog- goods of Sartoris, 1 Curt. 910, 
 
 nized in the statute 38 Ceo. III. administration, for the use and 
 
 c. 87, s. 6. See jjosi, p. 421. benefit of minor children of a 
 
 (s) In the goods of Weir, 2 Sw. Frenchman deceased, was granted 
 
 & Tr. 451. See also Brotherton to their guardian appointed by 
 
 V. Harris, 2 Cas. temp. Lee, 131 : the Frencli authorities. It has 
 
 In this case it was held that the been held that a testamentary 
 
 guardian appointed Ijy the Eccle- guardian of minor children is 
 
 siastical Court was to be preferred entitled to a grant of the adminis- 
 
 to the guardian appointed by the tration for their use and benefit 
 
 Court of Chancery. But see note preferably to a guardian elected 
 
 W.E. — VOL. I. E E
 
 418 
 
 Of Limited Administrations. [Ft. i. Bk. v 
 
 distinction 
 between infant 
 and minor : 
 
 the guardian 
 
 sometimes 
 
 excluded. 
 
 distinction exists between an infant and a minor. The former 
 is so denominated, if under seven years of age, the latter 
 from seven to twenty-one {t). The Court ex officio assigns a 
 guardian to an infant {u) ; the minor himself may nominate 
 his guardian, who is then admitted in that character by the 
 Judge {x) ; but if the minor makes an improper choice, the 
 Court will control it {y). According to the practice of the 
 Prerogative Court, the guardianship w^as granted to the next 
 of kin of the child, unless sufficient objection to him was 
 shown (2). 
 
 If a wife be the only next of kin, and a minor, she may 
 elect her husband her guardian, to take the administration 
 for her use and benefit, during her minority ; but the grant 
 ceases on her coming of age, when a new administration may 
 be committed to her (a). 
 
 But there are many instances where the Court has granted 
 the administration to persons not guardians of the minor. 
 
 by tlie children : In tlie goods of 
 Morris, 2 Sw. & Tr. 360. The 
 giiardian of an infant, sole next of 
 kin of an intestate, whose estate is 
 solvent, is entitled to take adminis- 
 tration of his effects, in preference 
 to creditors : John v. Bradbury, 
 L. R. 1 P. & D. 245. As to giving 
 justifying security in such a case, 
 see ibid. The general rule, how- 
 ever, is that the creditors as such 
 have no right to call upon the 
 next of kin to give justifying 
 security : Hughes v. Cookson, 1 
 Cas. temp. Lee, 386. Hickman v. 
 Black, 2 Cas. temp. Lee, 251. 
 
 it) Toller, 100. 
 
 {v) Sir G. Lee was of opinion, 
 that he could not assign a guardian 
 to an infant in ventre de sa mere ; 
 Walker v. Carles?, 2 Cas. temp. 
 Lee, 560. 
 
 (cc) Rich V. Chamberlayne, 1 
 Cas. temp. Lee, 134. 
 
 (y) Fawkener v. Jordan, 2 Cas. 
 temp. Lee, 330. This is men- 
 tioned by Lee, J., in Rex v. Bettes- 
 worth, Fitzg. 164, Mich. 4 Geo. II., 
 as being then the course of the 
 Spiritual Court. 
 
 (z) Toller, 100. In the goods 
 of Ewing, 1 Hagg. 381. But the 
 Court may, in its discretion, pass 
 by the next of kin : In the goods 
 of Ewing, 1 Hagg. 381, post, 419, 
 note (e). Quick v. Quick, 33 L. J., 
 P. & M. 177. In the goods of 
 Gardiner, 9 P. D. 66. In the 
 goods of Webb, 13 P. D. 71. 
 On one occasion a creditor was 
 appointed guardian to minors (the 
 only children of E. P.), who had 
 no known relations, for the pur- 
 pose of taking out administration 
 to the estate of E. P., who had 
 died intestate and insolvent : In 
 the goods of Peck, 1 Sw. & Tr. 141. 
 
 («) Toller, 92.
 
 Cli. III. § III,] Administration durante mmore cetate. 419 
 
 and refused to grant it to the person nominated by them. 
 Thus in Lovell and Brady v. Cox {h), Lovell and Brady 
 were appointed trustees by the deceased, and his heir, Anne 
 Cox, was executrix and residuary legatee : She was a minor, 
 and the father claimed the administration iiendente minori- 
 tate : The Court held that it had a discretionary power, 
 refused it to him, and gave it to the trustees (c). So the 
 administration may be granted to creditors, in exclusion 
 of the guardian of the minor, if the estate is insufficient 
 to pay the debts : And in many other cases it has been 
 laid down that the Court is not bound by the choice of 
 the minor (<?). Thus, where a grandfather, to whom, as 
 the next of kin, the administration durante minoritate would 
 in the ordinary course have passed, was turned eighty, it was 
 granted to an uncle, he giving full justifying security (c). 
 
 In Havers v. Havers (/), Lord Hardwicke, C, said, that 
 administration durante minor e cetate ought not to have been 
 granted to a person who was very poor, though the guardian 
 and next of kin of the infant. 
 
 The old practice above stated has been applied, and in some Rules P. R. 
 respects varied, by the rules, P. E. Non-contentious, as contentious) 
 
 follows :— -'^^ to grants t* 
 
 guardians. 
 
 By Rule 33, "Grants of administration maybe made to Rule 33. 
 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 will be 
 dispensed with." 
 
 34. " In cases of infants {i. e., under the age of seven years, Rule 34. 
 
 (6) Prerog. cited by Sir Jolm mentary trustee, in preference to 
 
 Nicholl in West v. Willby, 3 Phil- tlie mother, whom the minor had 
 
 lim. 379. chosen guardian. See also Hughes 
 
 (c) See also Ajjpleby v. Apjileby, -v. Eicards, 2 Cas. temp, Lee, 543. 
 1 Cas. temp. Lee, 135, where {d) West v. Willby, 3 Phillim. 
 
 administration cum testamento an- 374, 
 
 nexo was granted to a grand- (e) Li the goods of Ewing, 1 
 
 mother during the minority of an Hagg. 381, 
 executor, she being also testa- (/) Eaiuard, Chanc. Cas. 23. 
 
 E E 2
 
 420 Of Limited Administrations. [Pt. i. Bk. v. 
 
 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 Registrars ; the Regis- 
 trar's order is to be founded on an affidavit, showing that the 
 proposed guardian is eitlier 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.'' 
 
 Rule 35, 35. "Where there are both minors and infants, the guar- 
 
 dians 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 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. 36. " In all cases where grants of administration are to be 
 
 made for the use and benefit of minors or infants, the admi- 
 nistrators 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 admi- 
 nistrators are the guardians appointed by the High Court of 
 Chancery, or other competent Court, or are the testamentary 
 guardians of the minors or infants." 
 
 Administra- In a case in the Prerogative Court, the residuary legatee 
 
 tion grantei ^^^^ ^ minor, married to a husband who was also a minor, 
 
 To Si iiimoxj ci 
 
 foreigner, -bQ^i^ being subiects of, and resident in, Portugal : But it 
 
 entitled by the ^ i i i n i J ■, . • 
 
 law of bis own appeared that the husband, by reason of his holding a com- 
 coun ly. mission in the army, and being married, by the law of Portu- 
 
 gal was considered of full age, and that by her marriage, her 
 disabilities, as a minor, ceased : Under these circumstances, 
 administration with the Will annexed, limited to the receipt 
 of certain dividends in the English funds, was granted to the 
 wife(^). 
 
 [g) In the goods of tlie Countess contra, In the goods of Orleans, 
 Da Cunha, 1 Hagg. 237. But see 1 Sw, & Tr. 253, in wliich Sir C.
 
 Cli, III. § III,] Administration durante minore cetate. 421 
 
 Where an intestate left a widow and infant son, and admi- Administra- 
 nistration was granted to the widow, who soon after became the incapacity 
 noil comi^os, and the estate was small and unable to bear the and minority 
 expense of a commission of lunacy, and there were debts of l^^r son. 
 owing to it, which were in danger of being lost, if there was 
 no person to receive them ; Sir George Lee, without revoking 
 the administration granted to the widow, assigned (upon the 
 renunciation and consent of the grandmother), the infant's 
 aunt to be his guardian, and granted administration to her 
 also, for the use and benefit of the widow and infant, during 
 the incapacity of the widow, and the minority of the infant, 
 if the widow should not sooner recover her senses : And the 
 learned Judge directed the administration to be drawn up in 
 a special form, reciting the above particulars (/i). 
 
 It has already been pointed out (?) that formerly an infant When ad- 
 
 , •11 1 1 i> ii «? ij^ • • ministration 
 
 executor was considered capable oi the omce, on attammg durante minore 
 the age of seventeen : But now by statute 38 Geo. III. c. 87, f f ' '^J^^'l^® 
 
 ° '' determined. 
 
 s. 6 {k), after reciting that inconveniences arose from grant- gt^t. 38 Geo. 
 
 ing probate to infants under the age of twenty-one, it is ^^^■' ^' ^'' 
 
 enacted, " That where an infant is sole executor, adminis- 
 
 " tration 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." 
 
 And by the seventh section it is enacted, " That the person S. 7. 
 " to whom such administration shall be granted shall have 
 " the same powers vested in him as an administrator now 
 " hath by virtue of an administration granted to him durante 
 "minore cetate of the next of kin." 
 
 Before this Act there was a distinction between administra- 
 
 Cresswell held that the Court will (h) 1 Cas. temp. Lee, 625. 
 
 not follow the grant of the country (i) Ante, p. 185, n. {q). 
 
 of domicil when it would by so (/c) Extended to Ireland, Ly 58 
 
 doing be acting in contradiction to Geo. III. c. 81, ss. 1, 2. 
 
 the law of this country.
 
 422 Of Li irdted Administrations. [Pt. i. Bk. v. 
 
 tion granted during the niinoritv of an infant executor and an 
 infant next of kin : inasmuch as in the latter case the admi- 
 nistration has always been held to continue in force till the 
 next of kin attained the age of twenty-one [I). 
 
 It seems agreed, that if administration be granted during 
 the minority of several infants, it determines upon the coming 
 of age of any one of them. Thus if there be several infant 
 executors, he who first attains the age of twenty-one shall 
 prove the Will, and may execute it {m). 
 
 It was resolved, according to Lord Coke, by the justices of 
 the Common Pleas in Prince's Case (n), that if administra- 
 tion be committed during the minority of an executrix, and 
 she take husband of full age, then the administration shall 
 cease. But this has since been doubted, in the case of 
 Jones V. Lord Strafford (o), where Lord King, C, and 
 Raymond, C.J., strongly inclined against this opinion as 
 reported in Prince's Case, the same not being taken notice 
 of by other contemporary Pieporters, as 2 And. 132. Cro. 
 Eliz. 718, 719, and 3 Leon. 278, in all which books Prince's 
 Case is reported : Besides which it was extrajudicially 
 expressed, the question in the case being only whether such 
 a special administrator could assign over a term for years 
 which belonged to the testator : and it is remarkable that 
 the author of the Office of Executor, after mentioning the 
 proposition as stated in Prince's Case, proceeds, " Yet I do 
 a little marvel at these opinions, considering that these 
 things are managed in the Spiritual Court, and by that 
 law (the law spiritual) which intermeddles not with the 
 husband in the wife's case ; now by that law, and not our 
 common law, comes in this limit of seventeen years. And 
 I have seen it otherwise reported, in and touching the last 
 point " (p). 
 
 If administration be granted during the minority of several 
 
 (?) Freke r. Thoman, 1 Lord more's edition. 
 
 Raym. 667. 4 Bum, E. L. 384, (n) 5 Co. 29, h. 
 
 PhilHrnore's edition. {(>) 3 P. Wms. 88. 
 
 (m) 4 Burn, E. L. 385. Bliilli- (j*) Page 392, 14th edition.
 
 Cli, III. § III.] Administration durante Tiiinore estate. 423 
 
 infants, one of whom dies before he comes of age, this will not 
 determine the administration {q). If an administrator durante 
 minore (State recovered judgment, and then his time deter- 
 mined, the executor formerly might have had a scire facias 
 upon that judgment. As to the proceedings substituted in 
 lieu of scire facias by the Judicature Act, 1875, see jwsf, 
 Pt. II., Bk. II., Ch. 4. 
 
 Formerly questions seem to have been raised about the Administra- 
 power of an administrator durante minore atate, but it seems mhiorTmtate 
 now settled that the limit to his administration is the minority '™^* °^ " 
 of the person, but there is no other limit. He is an ordinary what acts such 
 administrator, appointed for the very purpose of getting in the may do. 
 •estate in the usual way, and the property vests in him (?•)■ A 
 power of sale given by a testator to his executors or adminis- 
 trators may be executed by an administrator durante minore 
 ^tate (s). 
 
 So he may assent to a legacy, if there are assets for the pay- 
 ment of debts (t). So he may be sued for the debts due from 
 the deceased : and if he give his bond for any of such debts, 
 he may retain goods to the value (u) : and if an action be 
 brought against him, and the administration determine pend- 
 ing the action, he ought to retain assets to satisfy the debt 
 which attached on him by the action (x) . Likewise he may 
 retain for his own debt (ij). 
 
 It has been said that he cannot do anything to the prejudice 
 of the infant ; and therefore he cannot sell the goods of the 
 deceased any farther than they are necessary for payment of 
 debts, nor can he otherwise sell a term for years during the 
 minority of the infant {z) . 
 
 (q) Anon. Brownl. 47. Jones r. 1 Freem. 288. 
 
 Strafford, 3 P. Wms. 89, overruling (u) Briers v. Goddard, Hob. 250. 
 
 the opinion in Brudnel's Case, 5 Com. Dig. Admon. (F.). 
 
 Co. 9, a. (x) Sparkes v. Crofts, Comberb. 
 
 (r) See Re Cope, IG C. D. 49. 465, by Lord Holt. 
 
 (s) Monsell v. Armstrong, L. R. (y) lloskelly v. Godolphin, T. 
 
 14 Eq. 423. Ilaym. 483. Com. Dig. Admon. (F.) 
 
 {t) Bac. Abr. Exors. (B. 1), 2. (z) Bac. Abr. tit. Exor. (B. 1), 
 
 Prince's case, 5 Co. 29, a. Anon. 2. But see Re Cope, 16 C. D.
 
 424 
 
 Of Limited Administ rations. [Pt. i. Bk. v. 
 
 In an action 
 by an adminis- 
 trator durante, 
 &c. , it must 
 have been 
 averred that 
 the infant is 
 within age. 
 
 Seciis, in an 
 action against 
 him. 
 
 Plea, by such 
 administrator, 
 if charged as 
 administrator 
 generally. 
 
 lu tlie case of an action brought by an administrator durante 
 minore (date, be must have averred in the declaration that 
 the infant was still under age {i.e., in all cases since the stat. 
 38 Geo. III. c. 87, s. 6, that he was within the age of twenty- 
 one years (a) ) ; because it is a matter within his conuzance, 
 and which entitles him to the action Qj). However, the de- 
 fendant must have taken advantage of this omission by way 
 of plea or demurrer, and could not object to it after he had 
 joined issue with the plaintiff on another point, which admits 
 the continuance of his authority (c). 
 
 But if an action were brought against such an adminis- 
 trator, the plaintiff in his declaration was not obliged to aver 
 that the infant was still under age ; for this is a matter more 
 properly within the conuzance of the defendant, and, if his- 
 power be determined, he ought to show it (d). 
 
 It was a good plea in abatement, where a defendant was 
 charged as administrator generally, that administration was 
 granted to him durante minore atate only: But it was neces- 
 sary that such a plea should aver that the infant was still 
 living and under age ; for though the defendant was a 
 special administrator at first, yet if that special administra- 
 tion w^ere determined, as by the death of the infant, 
 he might be administrator generally, as the declaration sup- 
 poses (e). 
 
 It is submitted that, although the forms of pleading 
 have been altered by the Judicature Acts, the averments 
 above alluded to would still be properly introduced in like 
 cases. 
 
 I 
 
 49, 52, as to the distinction Letween 
 administrator durante minore cetate 
 granted ad opus et commodum of 
 the infant and such administration 
 granted generally. See Sir Moyle 
 Finch's case, 6 Co. 67 b, and 
 Touchstone, p. 490. 
 
 (a) Previous to this statute the 
 administration determined on an 
 infant executor attaining the age 
 of seventeen, which explains what 
 
 was said by Treby, C.J., in the 
 case of Beal v. Simpson, 1 Ld. 
 Eaym. 408. 
 
 (b) Piggot's case, 5 Co. 29, a. 
 
 {<■) Bae. Abr. Exors. (B. 1), 2. 
 
 (d) Beal V. Simpson, 1 Lord 
 Eaym. 409, by Powell, J. 
 
 (e) Sparkes v. Crofts, 1 Lord 
 Eaym. 265. Bac. Abr. Exors. 
 (B."l),3.
 
 Cli. III. § III.] Administration durante minore cetate. 425 
 
 It has been laid clown, that if an executor durante minore Liability of 
 
 TIT'- TT 1 • ^ ii ''"C^' ^" admi- 
 
 (etate has duly administered the assets, and paid over tne nistrator after 
 surplus to the executor of full age, he is not chargeable to JelenuiS-"'' 
 creditors, and he may show this matter under a general plea 
 of plenc administravit (/) : but that if he has committed a 
 devastavit, be will be liable to creditors {g) ; even though to creditors : 
 he should obtain a release from the infant, when of full 
 age (h). 
 
 However, it is stated by Lord C. B. Gilbert (/), that such 
 an administrator is not chargeable at the suit of a creditor 
 after the infant comes of age : but such creditor may sue the 
 infant, who has his remedy against the executor (/t). And 
 it is said by Lord Hardwicke, in Fotherhy v. Pate {I), that 
 though an administrator durante minore cetate represents the 
 deceased while his administration subsists, yet when it is 
 determined, he has nothing more to do, nor can he be called 
 to account but by the executor : and that whatever he may 
 do during his administration, he is not liable to any other 
 person. 
 
 His Lordship proceeded to observe, that after such an 
 administrator has possessed himself of effects, if he is brought 
 before the Court, without the executor, he may demur for 
 that cause : but as the Court would allow a party to follow 
 assets into any hands, if it were shown by proper charges 
 that he had not accounted to the infant, but fraudulently and 
 by collusion detained any part, there was no doubt but that 
 such a bill might be maintained against an administrator 
 durante minore cetate (m). 
 
 It seems clear that an administrator durante minore estate, 
 who has wasted the goods of the deceased, cannot be charged 
 
 (/) Anon. 1 Freem. 150. See Di<,^ Admon. (F.). 
 
 also Brooking v. Jennings, 1 Mod. (i) Bac. Abr. Exora. (B. 1), 2. 
 
 174. (A) See also Ace. Brooking v. 
 
 ((/) Bull. N. P. 145, citing Pal- Jennings, 1 Mod. 175, by Vaughan, 
 
 mer v. Litherland, Latch. IGO. C. J. 
 
 Packman's case, 6 Co. 19, b. {!) 3 Atk. G03. 
 
 (/i) Anon. 1 Freem. 150. Com. (m) lb. 005.
 
 ^^26 Of Limited Administrations. [Pt. i. Bk. v. 
 
 by a creditor as executor de son tort, after the infant has 
 
 attained his majority ; because the administrator at the time 
 
 had hxwful power to administer (?()• 
 
 toasubsc- i]2 Tai/lor V. Ncicto7i (o), an administration had been 
 
 quent admi- 
 nistrator: granted to a guardian i)endente minoritate of a widow, and 
 
 on her coming of age, she renounced for herself and her 
 only child, an infant, and administration was granted to a 
 creditor, to whom the guardian refused to account : where- 
 upon he was called on by the creditor to give in an inventory 
 and account : The guardian appeared under a protestation, 
 because his administration was expired, and his counsel 
 insisted that he was not liable to account, now his adminis- 
 tration was expired : But Sir George Lee decreed him to 
 give in an inventory and account by a day specified, and con- 
 demned him in costs. 
 to the infant With respect to the liability of such an administrator to 
 
 when of age. 
 
 the infant, after he has come of age, it was laid down, that if 
 the administrator wasted the assets, the proper way for the 
 infant to charge him was by action on the case (p). Also 
 by some opinions the infant might bring detinue against him 
 for those goods which he still continued in his possession, or 
 he might oblige him to account in the Spiritual Court {q), 
 but could not bring a writ of account against him at law (r). 
 
 If an administration durante minore estate be repealed, and 
 another made administrator durante minore atate, and the 
 second administrator brings the first administrator to account, 
 and after releases to him, yet the infant at full age may 
 compel the first administrator to account again to him, and 
 the first account to the second administrator, and his release 
 shall not be any bar to it(.s'). 
 
 (n) Palmer v. Litlierland, Latch. {q) 1 Anders. 24. Com. Dig. 
 
 160, by Doddridrje and Jones, Administration (F.), Bac. Abr. 
 
 Justices. Lawson v. Crofts, 1 Sid. Exors. (B. 1), 2. 
 
 57. {r) 1 Anders. 34. Bac. Abr. 
 
 (o) 1 Cap. temji. Lee, 15. Exors. (B. 1), 2. 
 
 {f) Bac. Abr. Executors (B. 1), (s) Eoll. Abr. Exors. (M.), pi. 3. 
 2. Lawson v. Crofts, 1 Sid. 57.
 
 Ch. III. § IV.] Of Administration j^endente lite. 427 
 
 It was held that if a man obtained judgment against LiaLiiity of 
 
 T . . 7 • T f T ji infant &n judg- 
 
 an administrator durante minore (state, and aiterwards the ment against 
 
 executor or administrator came of age, a scire facias (t) lay ^ mimstrator. 
 against him, upon the judgment (ii). 
 
 Although an administrator of an executor is not adminis- Administrator 
 
 , T . . , . J durante minore 
 
 trator to the first testator, yet the administrator ciurantc atatc oi execu- 
 minore crtate of the executor of an executor is loco executovis, g°g°yto" 
 and the representative of the first testator {v). Therefore, 
 in an action by a creditor of the original testator, such an 
 administrator is properly charged as the administrator durante 
 minore estate of the second executor, and not as the adminis- 
 trator de bonis nan of the original deceased (to). And he might 
 formerly be sued in the Spiritual Court for a legacy bequeathed 
 by the latter (x). 
 
 SECTION IV. 
 
 Of Administration jiendcnte lite. 
 
 In case of a controversy in the Spiritual Court concerning 
 the right of administration to an intestate, it seems to have 
 been always admitted, that it was competent to the Ordinary 
 to appoint an administrator pendente lite : Yet where the 
 controversy before the Ordinary respected a Will, it was 
 once considered that a grant of this species of administration 
 was utterly void {y). But since the case of Walker v. JVoollas- 
 ton, decided in K. B., on error from C. P., Trin. T. 1731 (z), 
 it has been settled, that the Court has the power to grant 
 administration i)endente lite as well touching an executorship 
 as the right to administration {a). 
 
 {t) As to the proceedings now (x) Anon. 1 Freem. 288. 
 
 f5iibstituted in lieu of scire facias (y) Robin's case, Moore, 636. 
 
 by tlie Judicature Act, 1875, see Smyth v. Smyth, 3 Keb. 54. 
 
 post, Pt. IT. Bk. III. Ch. IX. Frederick v. Hook, Carth. 153. 
 
 (u) Sparkes v. Crofts, 1 Lord (z) 2 P. Wms. 589. 
 
 Eaym. 265. (a) S. P. Wills v. Rich, 2 Atk. 
 
 (v) Anon. 1 Freem. 288. 286. Maskeline v. Harrison, 2 Cas. 
 
 (w) Norton v. Molyneux, Hob. temp. Lee, 258. 
 246.
 
 428 
 
 20 & 21 Vict. 
 c. 77, s, 70. 
 Court may 
 grant adminis- 
 tration 'pen- 
 dcnte lite. 
 
 Of Limited Administrations. [Pt. i. Bk. v. 
 
 And now by the 70th section of the Court of Probate Act, 
 1857 (20 & 21 Yict. e. 77), it is enacted, that "pending any 
 suit touching the vahdity 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 administrator, other than the right of 
 distributing the residue of such personal estate, and every 
 such administrator shall be subject to the immediate contro-1 
 of the Court and act under its direction" {h). 
 
 [b) See Charlton r. Hindir.arsh, 
 1 Sw. & Tr. 519, where the 
 Court directed that the adminis- 
 trator shonld not di.-^charge claims 
 on the deceased's estate until they 
 had passed before the Eegistrar. 
 The Court has power, under this 
 section, to appoint an administrator 
 pendente lite in contested testa- 
 mentary and administration suits, 
 on the application of a person 
 who is not a party to the suit. 
 
 In an administration suit which 
 was likely to he protracted, the 
 Court appointed an administrator 
 pendente lite, at the instance of a 
 creditor who was not a party to 
 the suit. Tichbome v. Tichborne, 
 L. E. 1 P. & D. 730. In the 
 goods of Evans, 15 P. D. 215. 
 
 A suit having been instituted to 
 try the vo,lidity of the Will of the 
 deceased, and judgment having 
 been given to establish it, one of 
 the parties appealed from such 
 judgment to the House of Lords. 
 A difficulty having arisen in the 
 Court of Chancery as to the powers 
 of the executors to give a good 
 title to certain leasehold property 
 belonging to the deceased's estate, 
 under the probate and pending 
 
 the appeal, the Court ordered the 
 probate to be brought into the 
 Eegistry, and thereupon that 
 letters of administration pendente 
 lite should be granted to the 
 executors. Wright v. Rogers, 
 L. E. 2 P. & D. 179. 
 
 A married woman under a power 
 executed a Will, and her husband 
 by his Will made her universal 
 legatee and sole executrix. She 
 surviA-ed him but did not take 
 probate of his Will nor re-execute 
 her own. Litigation having arisen 
 on the question whether the wife's 
 executors were entitled to a limited 
 or general grant of probate, the 
 Court appointed an administrator 
 pendente life to the estate of the 
 husband, as well as one to the 
 estate of the deceased. In the 
 goods of Dawes, L. E. 2 P. & D. 147. 
 This case has been followed by 
 Butt, J., in the case of In the 
 goods of Fawcett, 14 P. D. 152, 
 where that learned Judge is re- 
 ported to have said that he was 
 " not altogether satisfied that in 
 that case the attention of the 
 Court had been sufficiently called 
 to the words of the 70th section."
 
 Ch. III. § IV.] Of Administration pendente lite. 429 
 
 And by stat. 21 & 22 Vict. c. 95, s. 22, " all the provisions 21 & 22 Vict. 
 
 c 95 « 22 to 
 
 contained in the Court of Probate Act, respecting grants of apply to ap- 
 administration pending suit, shall be deemed to apply to the P^**^^* 
 case of appeals to the House of Lords under the said Act." 
 
 Further, by the Court of Probate Act, 1857, s. 71, it is 20 & 21 Vict. 
 enacted, that " it shall be lawful for the Court of Probate to lieceiVerot* 
 appoint any administrator appointed as aforesaid, or any real estate pe/i- 
 
 . ^ CtCiiZC Ci/LCt 
 
 other person, to be receiver of the real estate of any deceased 
 person pending any suit in the Court touching the validity 
 of any "Will of such deceased person, by which his real estate 
 may be affected ; and such receiver shall have such power to 
 receive all rents and profits of such real estate, and such 
 powers of letting and managing such real estate, as the Court 
 may direct " (c). 
 
 By Stat. 21 & 22 Vict. c. 95, s. 21, " It shall be lawful for 21 & 22 Vict. 
 
 c. 95 s. 21. 
 the Court of Probate to require security by bond in such form a'he Court of 
 
 as by any rules and orders shall from time to time be ^™^'.**'® ^^^ 
 
 •^ -^ require secu- 
 
 directed, with or without sureties, from any receiver of the "*^y ^rom the 
 
 receiver of 
 
 real estate of any deceased person appointed by the said real estate. 
 Court, under section seventy-one of * The Court of Probate 
 Act,' and the Court may, on application made on motion or 
 in a summary way, order one of the registrars of the Court 
 to assign the same to some person to be named by such order ; 
 and such person, his executors or administrators, shall there- 
 upon be entitled to sue on the said security, or put the same 
 in force in his or their own name or names, both at law and 
 in equity, as if the same had been originally given to him 
 instead of to the judge of the said Court, and shall be entitled 
 to recover thereon, as trustee for all persons interested, the 
 full amount due in virtue thereof." 
 
 Before granting administration pendente lite the Court must Of what the 
 be satisfied as to the necessity of such an administrator {d), satisfied be- 
 
 (c) See Grant v. Grant, L. R. validity of the Will, c.fj., when the 
 
 1 P. & D. 654, where it was held only litigation is by petition in 
 
 that the Court has no jurisdiction reference to the individual ap- 
 
 to appoint a receiver of the real pointed executor, 
 
 estate of the deceased when there (cZ) Young v. Brown, I Har'n-. 
 
 is no suit pending touching the 54. Bellew v. Bellew, 34 L. J,
 
 4^0 
 
 Of Limited Administrations. [Pt. i. Bk. v. 
 
 fore granting 
 administration 
 paidtntc lite. 
 
 Administration 
 ptndente lite 
 granted though 
 receiver ap- 
 pointed by 
 Court of 
 Chancerv. 
 
 The adminis- 
 trator must be 
 an indifferent 
 person : 
 
 is not to be 
 considered as a 
 
 and also as to the fitness of the proposed administrator ; or 
 must be placed in a condition to determine between the two 
 (its most usual office upon such occasions), an administrator, 
 that is, being proposed by either party (e). The Court will 
 appoint an administrator i^endente lite if it is just and proper 
 to do so, although a receiver may have been appointed by the 
 Court of Chancery in a suit pending between the same parties 
 and affecting the same property as the testamentary or 
 administration suit (/). 
 
 The later practice of the Prerogative Court was to appoint 
 an administrator pendente lite in all cases where the Court 
 of Chancery would appoint a receiver (g). 
 
 On the other hand, it is the practice of the Court to decline 
 putting a litigant party in possession of the property, by grant- 
 ing administration pending suit to him, always granting it, 
 where requisite, to a nominee presumed to be indifferent 
 between the contending parties (h). 
 
 Administrators pendente lite are the appointees of the 
 
 P. M. & A. 125. But where the 
 estate of the deceased consi.-ts of 
 his share of a business wliicli he 
 was carrying on in partnership at 
 the time of his death, and wliich 
 is continued to be carried on by 
 the surviving partner, the Court 
 will not appoint an administrator 
 'pendente lite against the wish of the 
 surviving partner, unless a strong 
 case is made that he dealt im- 
 properly with the business. Hor- 
 rell V. Witts, L. R 1 P. & D. 103. 
 Neither will the Court appoint an 
 administrator pendente lite where 
 there is a person named in the 
 Will as executor, whose appoint- 
 ment is not questioned, and Avho 
 can discharge the duties of such 
 an administrator. Mortimer v. 
 Paull, L. R. 2 P. & D. 85. 
 
 (e) Xorthey v. Cock, 1 Add. 329. 
 
 (/) Tichborne v. Tichborne, 
 
 L. R. 1 P. & D. 730. 
 
 (f/) Bellew V. Bellew, 34 L. J. 
 P. & M. 125. 
 
 (/i) Northey v. Cock, 1 Add. 330. 
 Young V. Brown, 1 Hagg. 54. 
 Stratton v. Stratton, 2 Cas. temp. 
 Lee, 49. However, in Colvin v. 
 Fraser, 2 Hagg. 613, administra- 
 tion -pendente lite and limited to 
 certain property, was granted hy 
 consent, to one of the litigant 
 parties. De Chatelain v. Pontigny, 
 1 Sw. & Tr. 34. See further, as 
 to the practice relating to the 
 preference or rejection of nominees, 
 Hellier r. Hellier, 1 Cas. temp. 
 Lee, 381. Bond v. Bond, ibid. 
 333, 354. In The Queen's' Proctor 
 V. Williams, 2 Sw. & Tr. 353, a 
 person who had been receiver in 
 Chancery of the same estates was, 
 by consent, appointed adminis- 
 trator ^e^irfeyjfe Z»Ye,
 
 Cli. III. § IV.] Of Administration pendente lite. 431 
 
 Court, and are not to be merely considered as the nominees mere nominee 
 „ 1 , . , ... of the i^artics. 
 
 or agents oi the several parties on whose recommendation 
 
 they are selected {i). Therefore, in an administration pen- 
 dente lite, limited to recover certain sums, and granted jointly 
 to the nominees of the two parties in the suit, the Court 
 refused • o dispense with such administrators entering into a 
 joint bo .d (k). 
 
 By ^.Lat. 20 & 21 Vict. c. 77, s. 72, " the Court of Probate 20&21 Vict. 
 may direct that administrators and receivers appointed pend- ' ' ' ' 
 
 '' XXX Kemii aeration 
 
 ing suits involving matters and causes testamentary shall to administra- 
 tors ■pendente 
 race ve out 01 the personal and real estate ot the deceased lUe and re- 
 such reasonable remuneration as the Court think fit." ceivers. 
 
 Although doubts were entertained on the subject before the Power of ad- 
 ministrator 
 case of Walker v. Woollaston (I), it was settled, that the pendente lite : 
 
 administrator pendente lite might maintain actions for recover- 
 ing debts due to the deceased (m). So where a person, whether 
 he is heir-at-law or next of kin, or any other man whatsoever, 
 kept possession of the testator's leasehold estate, such an 
 administrator was held entitled to bring ejectments for the 
 recovery of the possession {n). But the nature of the autho- 
 rity conferred by such letters of administration was, before 
 the passing of the Court of Probate Act, merely to collect the 
 effects (0) ; and his power did not extend either to vest or 
 distribute them (jj). Therefore, even to enable him to lodge 
 money in Court, v/hich he was not called upon to do, it was 
 necessary for him to file a bill (q). And he had no authority 
 to pay legacies ; though if paid hondJi.de he would be allowed 
 for them (r). But now it will be seen that the Court of Pro- 
 
 (i) Stanley v. Bernes, 1 Hagg. (p) Gallivan v. Evans, 1 Ball 
 
 221. & Beatt. 192. 
 [k) Ihid. (q) Ibid. 
 
 {I) 2 P. Wms. 576. (r) Adaii' v. Shaw, 1 Sclio. & 
 
 (m) Ibid. Lefr. 254 : He has no business to 
 
 (n) Wills V. Rich, 2 Atk. 286. construe the Will ; he is only to 
 
 Jones V. Goodrich, 10 Sim. 328. hand over the assets to the person 
 
 (o) 1 Scho. and Lefr. 254, See entitled, or to dispose of them 
 
 also the observations of Sir H. pursuant to the directions of a 
 
 Jenner Fust in Goodrich v. Jones, Court of Equity : Ibid. 255, 256. 
 
 2- Curt. 457.
 
 432 
 
 Of Limited Administi'ations. [Pt. i. Bk. v. 
 
 Commence- 
 ment and 
 termination of 
 duties of 
 administrator 
 pendente lite. 
 
 A receiver 
 ■vronld formerly 
 have been 
 appointed by 
 the Court of 
 Chancery, not- 
 withstanding 
 an administra- 
 tion pendente 
 lite might be 
 also obtained ; 
 
 but Chancery 
 Division would 
 not now 
 afjpoint 
 receiver. 
 
 bate Act (s. 70) expressly enacts that he shall have all the 
 rights and powers of a general administrator, other than the 
 right of distributing the residue (s). 
 
 The duties of an administrator and receiver pendente lite 
 commence from the order of appointment, and, if the decree 
 in the action is appealed from, do not cease until the appeal 
 has been disposed of (t). 
 
 Such an administrator is not liable to interest rpon a 
 balance in his hands, during the pendency of the action (u). 
 
 During a litigation in the Ecclesiastical Court for probate 
 or administration, the Court of Chancery used to enterta u a 
 bill for the mere preservation of the property of the deceased, 
 till the litigation was determined, and appoint a receiver, 
 although the Ecclesiastical Court, by granting an administra- 
 tion pendente lite, might have provided for the collection of 
 the effects (v). 
 
 But although the Chancery Division of the High Court of 
 Justice has jurisdiction so to do, it would not now entertain 
 an application for the appointment of a receiver, but would 
 leave the matter to be dealt with by the Probate Division. 
 Thus in Barr v. Barr («), where there was a motion for the 
 transfer to the Probate Division of an action, which had been 
 commenced in the Chancery Division for the appointment of 
 a receiver of the rents and profits of a testator's real estate. 
 
 (s) See ante, p. 428. 
 
 (() Taylor v. Taylor, 6 P. D. 29. 
 
 (u) Gallivan v. Evaus, 1 Ball & 
 Beatt. 191. 
 
 (v) Mitf. PL 145, 136, 4tli edit. 
 King V. King, 6 Yes. 172. Ed- 
 munds V. Bird, 1 Yes. & Beam. 
 642. Atkinson v. Hensliaw, 2 
 Ves. & Beam. 85, Ball v. Oliver, 
 2 Yes. & Beam. 96. WatkiiiS v. 
 Brent, 1 Mylne & Cr. 102 (over- 
 ruling the distinction taken \>j 
 Lord Erskine in Eichards v. Cliave, 
 12 Yes. 462). Wood v. Hitchings, 
 2 Beav. 289. Such a suit need 
 
 not be brought to a hearing : 
 Anderson v. Guichard, 9 Hare, 
 275. In fact it never is brought 
 to a hearing. But after the litiga- 
 tion is over in the Probate Court, 
 the i)ractice is to discharge the 
 receiver and dispose of the costs. 
 And if it appears that there was 
 no reasonable ground for institu- 
 ting the suit at all, the Court will 
 order the defendant to pay all the 
 costs, though a receiver has been 
 appointed : Barton v. Eock, 22 
 Beav. 81. S. C, ibid. 376. 
 (.'■) ^y. X. 1876, p. 44. 
 
 1
 
 Cli. Ill, § v.] Of Administration duramte absentia. 433 
 
 pending proceedings in the Probate Division to determine the 
 validity of tiie Will, Sir George Jessel, M.R., made the order 
 for transfer, and pointed out that multiplicity of proceedings 
 vi^as one of the evils which the Judicature Acts was intended 
 to meet, especially as shown in s. 1\, sub-s. 7 of the Act of 
 1873. And in Re Ivory (y), a motion for the appointment of 
 a receiver and an injunction was refused, in an action in the 
 Chancery Division for the administration of the personal estate 
 of an intestate, against the defendant to whom letters of ad- 
 ministration had been granted. Indeed, even before the Judi- 
 cature Act, it was decided that having regard to the extended 
 powers of the Court of Probate under sects. 70 and 71 of the 
 Act of 1857, the Court of Chancery ought not, in cases where an 
 administrator jjencZenfc Ute had been appointed by the Court of 
 Probate, to continue its former practice as to the appointment 
 of receivers pending litigation in the Court of Probate {z). 
 
 SECTION V. 
 
 Of Administration durante ahsentid. 
 
 If the executor named in the Will, or the next of kin, be At common 
 out of the kingdom, the Ecclesiastical Courts always had the probate : 
 power, before probate obtained, or letters of administration 
 issued, of granting to another a limited administration durante 
 absentia (a). In the case of Clare v. Hedges, 3 Wm. & M. {b), 
 the Court held clearly that such administration was grantable 
 by law, and that it might be a great convenience to do so ; 
 for if the next of kin be beyond sea, and such administration 
 could not be granted, the debts due to the intestate might be 
 lost. So in Slater v. May, 3 Ann. (c), where an action was 
 
 (y) 10 Ch. Div. 372. Exors. (G.). 
 
 (z) Veret v. Duprez, L. R. 6 Ef^. {b) 1 Lutw. 342. 
 
 329. Hitchen v. Birks, L. R. 10 (c) 2 Lord Raym. 1071. See 
 
 Eq. 471. And see ante, p. mite, p. 376, as to administration 
 
 432 (v). to the attorney of the next of 
 
 (a) See 3 Bac. Ahr. 5G, tit. kin ; and ante, p. 405, as to ad- 
 
 W.K. — VOL. I. F F
 
 '^S^ Of Temporarij Administrations. [Pt. i. Bk. v. 
 
 brought by an admiuistrator cum testamento annexo, durante 
 ahscntid of the executor, Lord Holt said that it was reason- 
 able there should be such an administrator, and that this 
 administration stood upon the same reason as an administra- 
 tion durante m'lnore atatc of an executor, viz., that there 
 should be a person to manage the estate of the testator till 
 the person appointed by him is able. The absence of the 
 executor, or next of kin, to justify such an administration 
 must, it seems, be an absence out of the realm {d). 
 
 power of su;h Such an administrator is such a legal representative as to 
 entitle him to assign the leaseholds or other property of the 
 deceased {c), and his power differs in this respect from that of 
 an administrator durante minore estate (/). 
 
 after probate ^ut iclieu vTohate was oncc qranted, and the executor had 
 
 by stat 38 '' 
 
 Geo. III. c. 87. gone abroad, the Ecclesiastical Courts did not feel themselves 
 authorized to grant new administration on the ground that 
 the executor had left the kingdom. Nor could a Court of 
 Equity interfere by appointing a receiver : because, although 
 when oncc a person capable of sustaining the character of 
 legal representative had been brought into Court, Equity 
 could, in the case of his insolvency or misconduct, appoint 
 another person to manage the affairs of the testator, and 
 compel his legal representative to permit such person to sue 
 in his name ; yet, if the executor Avent abroad, a Court of 
 Equity could entertain no suit, there being no person to 
 stand in the situation of the testator {g). The consequence 
 of this defect of the authority of the Spiritual Court, was 
 
 ministration to the attorney of the durante minore afafe. 
 
 executor. (g) Taynton r. Hannaj, 3 Bos. 
 
 (d) Ibid. & Pull. 30. In the case of the 
 
 (e) Webb v. Kirby, 3 Sm. & G. estate of a deceased person who at 
 333. 7 De G. M. & G. 376. the time of his death was domi- 
 
 (/) See a7ite, p. 423. But see oiled within the jurisdiction a 
 
 Ee Cope, 16 C. D. 49, in which writ of summons can now by the 
 
 case Jessel, M.R., doubts the order of a Judge be served on an 
 
 authority of these limitations on executor out of the jurisdiction, 
 
 the power of an administrator See E. S. C, Order XL, Rule 1.
 
 Cli. Ill § v.] Of Administration durante absentid. 435 
 
 that there was no person existing within the jurisdiction of 
 
 the Courts of Law or Equity duly authorized to appear and 
 
 collect the dehts. To remedy this inconvenience, the statute Stat. 38 Geo. 
 
 38 George III. c. 87 (usually called Mr. Simeon's Act), was i^ at the' ^ ' 
 
 passed, whereby after reciting that the laws now existing are expiration of 
 
 , ... twelve months 
 
 not sufficient to enforce a speedy distribution of the assets of from a testa- 
 deceased persons, where the executor to whom probate of the the executor'to 
 Will hath been granted is out of the jurisdiction of his )^li°°i P^ff ^ 
 
 o J IS granted shall 
 
 Majesty's Courts of Law and Equity, it is enacted, "that at not reside 
 
 within the 
 
 the expiration of twelve calendar months Qi) from the death jurisdiction of 
 of any testator, if the executors or executor (i) to whom courts^rcredi- 
 probate of the Will shall have been granted, are, or is, then *°^'.&c-, may 
 
 ^ ^ ' ' ' obtain special 
 
 residing out of the jurisdiction of his Majesty's Courts of administration 
 Law and Equity, it shall be lawful for the Ecclesiastical stamp. 
 Court, which hath granted probate of such Will, upon the 
 application of any creditor (/r), next of kin or legatee (I), 
 grounded on affidavit hereinafter mentioned, to grant such 
 special administration as hereinafter is also mentioned ; which 
 administration shall be written or printed upon paper or 
 parchment, stamped only with one five shilling stamp, and 
 
 (/i) The Avords "at tlie expira- cases where letters of administra- 
 tion of twelve months " have been tion have been granted, and the 
 held when compared with the person to whom such administra- 
 words given in the form of the tion shall have been granted sliall 
 affidavit in sect. 2, and the grant be out of the jurisdiction of her 
 of administration in the 3rd sec- Majesty's Courts of Law and 
 tion, to mean at or after the expira- Equity." The provisions of the 
 tion of that period : In the goods above Acts apply to tlie case of an 
 of Ruddy, L. R. 2 P. & D. 330. executor of an executor. In the 
 
 (i) It will be observed that tlie goods of Grant, 1 P, D. 435. 
 
 statute applies to executors only, (Jc) A creditor in Equity, such as 
 
 and therefore administration could the assignee in bankruptcy of an 
 
 not be granted during the absence absent administrator indebted to 
 
 from the country of an adminis- the intestate's estate, is a creditor 
 
 trator cum testamento annexo : In within the meaning of this section. 
 
 the goods of Harrison, 2 Robert. In the goods of Hammond, 6 P. D. 
 
 184. But now by the Court of 104. 
 
 Probate Act, 1857 (20 & 21 Vict. (l) As to the construction of 
 
 c, 77, s. 74), the above statute these words, see 2'"^^ P- 437, 
 
 ehall apply in like manner to all note (n). 
 
 F F 2
 
 436 
 
 Sect. 2. 
 Form of 
 affidavit. 
 
 Sect. 3. 
 Form of grant. 
 
 Statute only 
 applied to 
 cases where 
 proceedings 
 in equity. 
 
 Stat. 21 & 22 
 Vict. c. 95, 
 s. 18. 
 
 Common ad- 
 ministrator's 
 oath substi- 
 tuted for 
 affidavit. 
 
 Stat. 38 Geo. 
 III. s. 87. 
 Sect. 4. 
 
 Stock belong- 
 ing to the 
 estate of the 
 deceased may 
 be transferred 
 into the name 
 of the account- 
 ant-general in 
 Chancery in 
 trust for such 
 purposes as the 
 Court shall 
 direct in any 
 suit. 
 
 Executor 
 returning to 
 reside within 
 ■jurisdiction of 
 the Court to be 
 made a party 
 in such suit. 
 
 Of Temporary Administrations. [Pt. i. Bk. v, 
 
 shall pay no fartlier or other duty to his jNIajesty, his heirs, 
 or successors." 
 
 Section 2 provided a form of affidavit to be made by the 
 applicant, which contained an averment that the deponent was 
 desirous of exhibiting a bill in Equity ; and section 3 con- 
 tained a form of grant, limited for the purpose of proceedings 
 in Equity ; and it was accordingly held that the statute 
 applied only to cases where there were proceedings in Equity, 
 but stat. 21 e^' 22 Vict. c. 95, s. 18, extended the operation of 
 stat. 38 Geo. III. c. 87, to all executors and administrators 
 residing out of the jurisdiction of Her Majesty's Courts of 
 Law and Equity, " whether it be or be not intended to insti- 
 tute proceedings in the Court of Chancery," and authorized 
 an alteration in the language of the grant, so as to make it 
 apply to grants under the last mentioned Act. 
 
 The common administrator's oath is now used in place of 
 the affidavit. 
 
 Section 4 which enabled a Court of Equity to appoint 
 persons, to collect outstanding debts, has been repealed by 
 stat. 42 & 43 Vict. c. 59, s. 2. 
 
 Section 5. " 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 Company 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 hath 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
 
 €h. III. § v.] Of Administixition durante ahsentid. 437 
 
 af sucli fund as the Court where such suit is depending shall 
 direct." 
 
 This statute applies to the case of an executor resident out Application 
 of the jurisdiction, and out of the reach of process of her 
 Majesty's Courts of Law and Equity, as, for instance, the case 
 of an executor residing in Scotland {m) . 
 
 The stat. 38 Geo. III. c. 87, applied only to cases where 
 there were proceedings in Chancery, hut this has been remedied 
 by the stat. 21 & 22 Vict. c. 95, s. 18, by which it is enacted, Sut. 21 & 22 
 
 Vict c 95 
 
 that the provisions of an Act passed in the 38th year of s. 18. * 
 Geo. III. c. 87, and of the Court of Probate Act, shall be 
 extended to all executors and administrators residing out of 
 the jurisdiction of her Majesty's Courts of Law and Equity, 
 whether it be, or be not, intended to institute proceedings in 
 the Court of Chancery, and to all grants made before and 
 subsequently to, the passing of the last-mentioned Act, and it 
 shall be lawful to alter the language of the grant prescribed 
 by the first-named statute, so as to make it apply to grants 
 made in the Court of Probate under the said last-mentioned 
 Act {n). 
 
 When the Probate Court in the exercise of its ordinary 
 jurisdiction grants administration during the absence of an 
 executor or next of kin, before probate, or administration Effect of the 
 taken out by him, such administration is at an end the gxecuLr * ^ 
 moment he returns (o). But under the statute of 38 Geo. III. 
 
 (??!) Hannay v. Tayntun, 2 Add. 1 P. & D. 1. Where the appli- 
 
 505. cant is residuary legatee, whose 
 
 {n) Under these Acts a limited interest is undetermined, the grant 
 grant of administration with the will he made under 38 Geo. 3, 
 Will annexed was made to the c. 87, hut where a particular sum 
 personal representative of a legatee, is set aside for and actually pay- 
 as being within the spirit, if not able to the applicant, the grant 
 the letter, of the statute of Geo. 3 : can be made under the 18th sec- 
 In the goods of Collier, 2 Sw. & tion of 21 & 22 Vict. c. 95 : In the 
 Tr. 444. A similar grant was goods of Ruddy, 2 L. R., P. & D. 
 made to a trustee substituted by 330. 
 
 the Court of Chancery for an (f ) Secas, as to an administration 
 
 executor who had gone abroad. granted, durante absentia, to the 
 
 In the goods of Ilampson, L. R. attorney of an executor : In the
 
 458 
 
 Of Temi)oi'ary Administrations. [Pt. i. Bk. v. 
 
 Effect of the 
 death of the 
 executor. 
 
 it was held that the administrator was not appointed for a 
 limited period, but for a limited purpose, viz., to become and 
 be made party to a bill or bills in equity, and to carry the 
 decree or decrees into effect. The suit so instituted was not, 
 therefore, to fall to the ground, and be at an end, by the 
 return of the executor, but to go on, he being made a 
 party in the usual course ; and then the temporary adminis- 
 trator might account, have his costs, and be discharged {jp). 
 
 It was held iu Clare v. Hedges (q), that in the case of a 
 common law administration durante absentia, if any of the 
 debtors of the deceased paid his debt to the temporary 
 administrator, though it was after the return of the executor 
 or next of kin, yet, if the debtor had no notice of such return, 
 it was a good payment. 
 
 It was held that when an administrator had been appointed 
 under the statute (38 Geo. III.)) if the executor died, the ad- 
 ministration did not thereby come to an end, nor the 
 authority of the administrator determine (r). There is no 
 provision made in the statute for the death of the executor : 
 but the proper course upon such an event seems to be, that 
 in case of his dying intestate, some j)erson should take out 
 general administration to the original testator, or if the former 
 executor made a Will appointing an executor capable of 
 acting, such executor should obtain probate, so as to repre- 
 sent the original testator ; and then such administrator or 
 executor, being considered within the true meaning, though 
 not the strict letter of the statute, may apply to be made a 
 
 1 
 
 goods of Cassidy, 4 Hagg. 360. 
 Ante, p. 407. The power of such 
 an administrator is wholly deter- 
 mined by the death of the execu- 
 tor : Webb v. Kirby, 7 De G. M. 
 & G. 377, ante, p. 407. Suwerkrop 
 V. Day, 8 A. & E. 624. 
 
 (p) Rainsford v, Taynton, 7 Ves. 
 46t\ But now, by reason of 21 & 
 22 Vict. c. 95, sect. 18, the purpose 
 ■would seem no longer so limited. 
 
 and the provisions of the Judica- 
 ture Acts and Rules prevent au 
 action in any case falling to the 
 ground. See R. S. C. 1883, 
 Ord. XYII., r. 4. 
 
 (q) 1 Lutw. 342. S. C. cited 
 from MS. in Walker v. Woollaston, 
 P. Wms. 579. 
 
 (r) Taynton c. Hannay, 3 Bos. 
 & PuU. 26.
 
 Ch. Ill, § VI.] Of Limited Administrations. 439 
 
 party to any pending action, and the matter can be dealt with 
 in the same way as if the original executor had returned to 
 this country (s). 
 
 In the case of an action brought by an administrator What adminis- 
 durante ahsentid, appointed independently of the statute, the aLentidmvsx 
 statement of claim must aver that the executor at the time of '^^'*^se i" his 
 
 statement of 
 
 the grant of administration was absent, and that his absence claim, 
 continues. If there is an averment of his absence, without 
 saying where, the Court will intend it to be in an absence 
 beyond the jurisdiction {t). 
 
 In an action on a policy of insurance, brought by an Admissions of 
 administrator appointed under the statute, evidence was evidence '^"'^ 
 tendered by the defendants of declarations made by the against the 
 
 administrator 
 
 executor, whilst he was executor and before the proceedings durante mino 
 
 had taken place for having the present plaintiff appointed 
 
 special administrator : But Lord Denman refused to receive 
 
 the evidence, saying that the acts of the original executor, 
 
 done by him in that capacity, might be admissible in evidence 
 
 against the plaintiff, who had succeeded durante ahsentid 
 
 to the office of executor ; but that, in his opinion, the mere 
 
 declarations of the executor did not stand on the same 
 
 footing (m). 
 
 SECTION VI. 
 
 Of other Temporarij and Limited Administrations. 
 
 There are several other instances of temporary adminis- Tempoiary 
 trations, granted as well cum testamento annexo as in cases tions'-'^*'^'^ 
 of complete intestacy. 
 
 It has already appeared that an executor may be appointed mm testamento 
 with limitations as to the time when he shall begin his office, 
 
 (.s) Rainsford v. Taynton, 7 Ves. 1071. 
 
 460 ; and see the judgment of {u) Rush v. Peacock, 2 Moo. & 
 
 Chambre, J., in 3 Bos. & Pull. 34. Rob. 1G:\ 
 
 (() Slater v. May, Lord Rayni.
 
 440 
 
 Of Temporary Admimstmtions. [Pt. i. Bk. v. 
 
 in case of an 
 executor 
 limited as to 
 time : 
 
 administration 
 limited till a 
 Will be trans- 
 mitted to 
 England : 
 
 as where a man is appointed to be executor at the expiration 
 of five years from the death of the testator {x). 
 
 So the testator may appoint the executor of A. to be his 
 executor : and then if he die before A. he has no executor 
 till A. die(?/). 
 
 In these cases, if the testator does not appoint a person 
 to act before the period limited for the commencement of 
 the office, the Court must commit administration limited 
 until there be an executor {z). It is plain, that this will be 
 an administration cum testamento aiinexo, and the appoint- 
 ment made according to the rules connected with that sort 
 of grant ((^(). 
 
 So it may be necessary to decree a limited administration 
 till the "Will of the deceased can be produced in order to be 
 admitted to probate. Thus where the deceased, a few days 
 before his death, stated that he had made his will whilst 
 in India ; and that the same was then remaining there ; 
 administration was applied for " limited for the purpose of 
 receiving and investing the interest and dividends due or to 
 become due on certain stock of the deceased, and for receiving 
 and investing the amount of an India Bill, and for otherwise 
 protecting the property of the deceased," " until the last 
 Will and testament of the said deceased, or an authentic 
 copy thereof, should be transmitted to this country : " Sir 
 John Nicholl, on the consent of all parties apparently 
 interested, granted the administration, and the learned Judge 
 observed, that the deceased could not be sworn to have died 
 intestate, having, according to his own declaration, left a 
 Will in India : An administration pendente lite was out of 
 the question, as no suit in the Spiritual Court was or ever 
 might be pending : nor could there be an administration as 
 durante absentia or minoritate of an executor ; for non constat 
 who the executor was : At the same time a long interval 
 must elapse before the Will would be forwarded from India, 
 
 {x) Ante, p. 199. 
 
 [y) Ante, ])p. 199, 200. 
 
 (i) Godolph. Pt. 2, c. 30, s. 5. 
 (rt) See ante, p. 399, et seq.
 
 Cli. III. § VI.] Of Limited Admiiiistrations. 441 
 
 in which interval it was material there should be some one 
 to protect and manage the property ; and, therefore, the 
 Court complied with the application {h). 
 
 Where a Will, proved to have been in existence after the limited till a 
 testator's death, is accidentally lost, and the contents foand: 
 unknown, the Court will grant administration limited until 
 the original Will he found, and brought into the registry (c). 
 
 If the executor be disabled from acting, as if he becomes limited during 
 lunatic, or incapable of legal acts, then on the principle of ne- of^thTexecutor 
 cessitv, there shall be a grant of a temijorary administration o^' admiDistra- 
 with the Will annexed {d). Where a sole executor or admi- kin, &c. 
 nistrator 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 {e). By the consent, given or 
 implied, of the committee of the lunatic, administration with 
 the Will annexed may be committed to a residuary legatee, 
 during the lunacy of the executor (/). 
 
 It was also the practice of the Ecclesiastical Court to grant 
 administration for the use and benefit of a lunatic, though the 
 person alleged to be so has not been found a lunatic by inqui- 
 sition. When such a case occurred, the Ecclesiastical Court 
 required affidavits, stating the fact of lunacy, and that no 
 inquisition has been had, and, of course, no committee 
 appointed : The Court then granted administration to the 
 next of kin of the lunatic, for the use and benefit of the 
 lunatic pending the lunacy, and it required sureties in double 
 
 Hags,'. 555. ^ ^^-^ "^(^^76 f/ ^/w^ C^^^h 
 ((/) Hills V. Mills, 1 Salk. 36. ^ 
 
 Q)) In the goods of Metcalfe, 2 Hagg. 555. ^ '^<^ A-^^W^^ »/ ^aL^ C/^93j ^^ 
 
 1 Add. 343. See also 1 Gibs. Cod. {u 
 
 574, where it is said that, though Toller, 99. Ante, \). 421. Tliese 
 
 there be no suit or ctjiitroveisy are termed in I Oughton, tit. 219, 
 
 depending touching the executor- s. 1, n. («), " Litene adminidra- 
 
 ship, and though there be an tionis durante Coiyoris aut Animi 
 
 executor, yet, if he does not come vitio." 
 
 in, the Ordinary may grant a {e) In the goods of Phillips, 
 
 temporary administration until the 2 Add. 336, n. (h). 
 
 executor comes in and proves the (/) In the goods of Milnes, 3 
 
 Will. Add. 55. 
 
 (c) In the goods of Campbell,
 
 442 Of Temporanj Administrations. [Pt. i. Bk. V. 
 
 the amount of the property, and such sureties must have 
 justified (;/). 
 
 Where administration had been granted of an intestate's 
 effects to a creditor for the use and benefit of the widow, a 
 lunatic, on the renunciation of her children ; on the death 
 of the creditor, leaving goods unadministered, the widow 
 surviving and still lunatic, the Court refused to grant admi- 
 nistration de bonis non to a son of the deceased, who had 
 retracted his renunciation ; but granted it to him for the 
 use and benefit of the widow, during her lunacy, he giving 
 justifying security to the amount of the goods unadmi- 
 nistered (//). 
 
 In another case {i), the deceased died intestate in October, 
 1826, leaving his widow and several children him surviving : 
 In the following November, administration was granted to 
 his widow, who, in November, 1832, became a lunatic : In 
 May, 1836, the Court was prayed to revoke the administra- 
 tion granted to the widow, and to grant an administration to 
 the son of the deceased : The Court declined to revoke the 
 administration ; but granted administration to the son, limited 
 during the lunacy of the widow, the letters of administration 
 theretofore granted to her being first brought in and im- 
 pounded in the Registry, in order to be re-delivered out in 
 case of her recovery. 
 
 (f/) See Ex parte Evelyn, 2 the goods of Joseph, 1 Curt. 907. 
 
 Mylne & K. 4, where the practice Administration with the Will 
 
 was laid down, as above stated, annexed de bonis non was granted 
 
 by Lord Brougham, C, from a to the executors of a sister, the 
 
 communication, made to him by administratrix, deceased, for the 
 
 Dr. Lushington. See also Evans use and benefit of the surviving 
 
 V. Tyler, 2 Robeit. 134. S. C. 7 sister, the sole next of kin, during 
 
 Notes of Cas. 305, 306. Adminis- her imbecility, without citing her 
 
 tration of the effects of a Jew was next of kin : In the goods of 
 
 <n'anted to the Secretary of the Southmead, 3 Curt. 28. 
 
 Great Synagogue, for the use and (/() In the goods of Penny, 4 
 
 benefit of the next of kin (a Notes of Cas. 659. 
 
 Jewess), who was of unsound (r) In the goods of Binckes, 1 
 
 mind, during her lunacy, her next Curt. 286. 
 of kin having been first cited : In
 
 Ch. III. § VI.] Of Limited Administrations. 443 
 
 If an executor, wlio is also residuary legatee in trust, be 
 incapable, and no committee is appointed, the cestui que trust 
 may obtain administration under certain circumstances (/t). 
 In a case where one or two executors had renounced, and 
 the other was a lunatic under confinement, and there was no 
 committee of her person and estate, the Court refused to 
 grant administration to the residuary legatee, the daughter, 
 during the lunacy of her mother, without the sureties in the 
 bond justifying ; no reason being giveii for the renunciation 
 of the co-executor, nor any obstacle assigned to the formal 
 appointment of a committee, to whom the administration for 
 the use of the widow would regularly be granted {I). 
 
 Until the year 1824, In the goods of Phillips {m) , no case Case of one of 
 of an application to the Court to supply a defect in the legal nisti-ators be- 
 representation of the party deceased, occasioned by the lunacy coming lunatic. 
 of one of his several administrators, is believed to have 
 occurred. In that case one of the three administrators, cum 
 testamento annexo, was found to be a lunatic under a commis- 
 sion from the Court of Chancery, and committees had been 
 appointed : There was standing in the name of the deceased, 
 in the books of the Bank of England, certain sums, his pro- 
 perty ; but of which neither the interest could be received, 
 nor the principal stock transferred, as directed by the Will, 
 in consequence of such lunacy : Under these circumstances, 
 the Court directed that upon the letters of administration 
 already granted being brought in by the two sane administra- 
 tors, and the committees of the third, letters of administration 
 de bonis non, &c., should by consent of the said committees, 
 issue de novo to the two former administrators only («). On 
 the authority of this decision, the Court ordered, in a case 
 where one of two joint administrators had become imbecile 
 and incapable of acting, that the joint letters of administra- 
 tion, having been brought into the Registry, should be re- 
 
 (/c) In the goods of Crump, .3 1 Hagg. 487. 
 Phillim. 497. (m) 2 Add. .335. 
 
 {I) In the goods of Hardstonc, («) 2 Add. 336.
 
 444 
 
 Administra- 
 tion limited to 
 a particular 
 subject : 
 
 if there is an 
 executor tbere 
 can be no ad- 
 ministrator : 
 
 Of Temporarii Admuust rations. [Pt. i. Bk. v. 
 
 vokecl, and special letters of administration granted to the 
 sane administrator, without justifying securities (o). On 
 another occasion {p), the deceased had appointed two execu- 
 tors, and prohate had heen granted to one, with a power 
 reserved of making the like grant to the other : The executor 
 who had obtained the grant became a lunatic, and a transfer 
 of the deceased's stock at the Bank could not, in consequence, 
 be obtained : A double probate was taken by the other execu- 
 tor, and the Court was prayed to revoke the probate granted 
 to the lunatic, it having become inoperative :The Court 
 directed both probates to be brought in, and then revoked 
 them, and granted a fresh probate to the other executor, and 
 therein reserved a power of making a like grant to the lunatic 
 executor, when he should become of sound mind and apply for 
 the same. 
 
 There may also be a grant of administration limited to 
 certain specific effects of the deceased ; and the general 
 administration may be committed to a different person. But 
 it should seem that this sort of grant is entirely exceptional, 
 and should not be made unless a very strong reason be 
 given {q). 
 
 Two administrations may well subsist together when there 
 is no executor : But it should be observed that, regularly, no 
 administration of any sort can be granted when there is an 
 executor appointed ; for he is univcrsi juris lueves to his tes- 
 tator : Therefore where A. made his Will, and appointed B. 
 
 (o) In the goods of Kewtun, 
 3 Curt. 428. 
 
 {■p) In tlie goods of Mai-.-Iiall, 
 1 Curt. 297. 
 
 {q) In the goods of Watts, 1 S\v. 
 & Tr. 538. In the goods of Somer- 
 set, 1 L. R. P. & D. 350. Where a 
 party applying for administration 
 has no direct interest in the personal 
 estate of the deceased, but only 
 as assignee of part of it, the grant 
 must be limited to the particular 
 
 fund to which he is entitled. In 
 tlie goods of Dodgson, 1 Sw. & Tr. 
 259. 
 
 Again the Court granted admin- 
 istration with a Will and codicil 
 annexed to a legatee of trust 
 property belonging to the deceased, 
 limited to such trust property, so 
 far as it was personally bequeathed 
 to him by the codicil. In the 
 goods of Prothero, L. E. 3 P. & D. 
 209.
 
 legacy : 
 
 Ch. III. § VI.] Of Limited Administrations. 445 
 
 his executor, and by deed gave part of his estate to C. : and 
 C. obtained in the Prerogative Court a limited administration 
 to the deed only ; the Judges Delegate set aside the grant of 
 this administration on appeal (r). 
 
 It frequently happens that the personal administration of administration 
 
 , -. ^ • ^ ^ t • i_ • ^ • limited to 
 
 a party deceased is broken, and its revival is necessary assit^n a trust 
 merely for the performance of a single act. In such cases, *^^™^ • 
 administration dc bonis nan will be granted, limited to that 
 particular object. For instance, when the representatives of 
 a trustee, in whom a term of years or charge was vested, are 
 dead, a limited administration to another trustee is requisite, 
 for the purpose of making an assignment, and will be granted 
 limited accordingly (s). So where a testator leaves the divi- to a particular 
 dends on certain stock in the public funds to a legatee for 
 life, and after his decease, the whole property to another, and 
 makes the legatee for- life executor, who dies intestate, admi- 
 nistration de bonis non, with the Will annexed, may be 
 obtained by the representative of the substituted legatee, 
 limited to the sum in the funds, and the dividends due 
 thereon since the death of the legatee for life {t). So admi- 
 nistration with a Will annexed was granted to the joint nomi- 
 nees of two charitable institutions to whom legacies, expectant 
 on life interests, had been bequeathed, but limited to a fund 
 
 (r) Coswall v. Morgan, 2 Cas. p. 444 {q). On one occasion it ap- 
 
 temp. Lee, 571. See^osf, p. 451. peared that a party had remitted 
 
 (s) In cases where the original from India a bill of exchange pay- 
 trustee died testate, it was not the ahle to the order of the deceased : 
 practice of the Prerogative Office The bill was accepted, but, pre- 
 to annex the Will to an adminis- vious to its arrival, the deceased 
 tration granted for this purpose : died intestate, and his widow and 
 In the goods of Fenton, 3 Add. 36, children renounced administra- 
 n. (a). It is not sufficient, in tion : A grant was applied for to 
 order to make out a title to the the nominee of the remitter of the 
 term, to refer to deeds deducing bill, limited to receive and give a 
 such title in affidavits : The deeds discharge to a third party for it : 
 themselves must be brought into But the Court refused the motion, 
 the Registry : In the goods of on the ground tliat it was in fact 
 Keene, 1 Sw. & Tr. 20.5. an application for a limited ad- 
 
 (i) In the goods of Steadman, ministration to be granted to the 
 
 2 Hagg. 59. But see in the goods nominee of a debtor : In the goods 
 
 of Watts, 1 Sw. & Tr. 539. Ante, of Lord Rivers, 4 Hagg. 355.
 
 446 
 
 Of Temporanj Administrations. [Pt. i. Bk. v. 
 
 limited to 
 proceedings 
 in Chancery 
 
 appropriated for payment of the legacies ; the parties entitled 
 to a general grant having been cited and not appearing («). 
 
 Again, an administration may be granted, limited to com- 
 mencing or substantiating proceedings in Chancery (.r). 
 
 Again, if a debt, by a covenant or obligation binding the 
 heir of the debtor, is demanded in Equity against the real 
 assets in the hands of a devisee, under the statute 3 W. & 
 M. c. 14, (repealed and re-enacted with additional provisions 
 by stat. 11 G. 4 & 1 W. 4, c. 47,) the personal representative 
 of the deceased debtor is generally a necessary party to the 
 suit, as a Court of Equity will first apply the personal in 
 exoneration of the real assets («/). And when there has been 
 no general personal representative, a special representative 
 by an administration limited to the subject of the suit has 
 been required (-). In other cases where a demand is made 
 against a fund entitled to exoneration by general personal 
 assets, if there are any such, a like limited administrator is 
 frequently required to be brought before the Court. This 
 seems to be required rather to satisfy the Court that there 
 are no such assets to satisfy the demand : for although the 
 limited administrator can collect no such assets by the autho- 
 rity under which he must act, yet as the person entitled to 
 general administration must be cited in the Ecclesiastical 
 Court, before such limited administration can be obtained, 
 and as the limited administration would be determined by a 
 subsequent grant of general administration, it must be pre- 
 
 (h) In the goods of Bioii, 3 
 Curt. 739. Where there are seve- 
 ral parties interested in the fund, 
 the grant will be limited to the 
 interest of the cestui que trust 
 making the application, unless 
 the other cestuis que trust assent 
 to the grant extending to their 
 respective interests : Pegg v. 
 Chamberlain, 1 Sw. & Tr. 527. 
 
 (x) Woolley r. Green, 3 Phil. 
 314. Maclean v. Dawson, 1 Sw. & 
 Tr. 425. In the goods of Dodgson, 
 1 Sw. & Tr. 259. Burdon v. 
 
 Morgan, L. R. 2 P. & D. 371. But 
 the appointment of an adminis- 
 trator ad litem is now in many 
 cases unnecessary ; for by R. S. C, 
 Ord. XVI., r. 46, the Court may 
 appoint some person to represent 
 the estate of the deceased, or pro- 
 ceed in the absence of any such 
 person. See jwsf, Pt. v. Bk. ir. 
 Ch. II. 
 
 (t/) See Mitford Plead. 176, 4th 
 edition. Post, Pt. iv. Bk. I. Ch. II. 
 
 §1- 
 
 (z) Mitf. Plead. 177, 4th edition.
 
 Ch. III. § VI.] Of Limited Administrations. 147 
 
 sumecl that there are no such assets to be collected, or a 
 general administration would be obtained (a). 
 
 So where a claim on property in dispute would vest in the 
 personal representative of a deceased person, and there is no 
 general personal representative of that person, an adminis- 
 tration limited to the subject of the suit may be necessary to 
 enable the Court to proceed to a decision on the claim. And 
 when a right is clearly vested, as a trust term, which is 
 required to be assigned, an administration of the effects of 
 the deceased trustee, limited to the trust term, is necessary 
 to warrant the decree of the Court for assignment of the 
 term {h). 
 
 But where a testatrix had a power of appointment, and a 
 general probate of her Will of 1829, and codicil thereto, 
 had been granted, the Delegates, reversing a Decree of the 
 Prerogative, held that the Court could not also grant an 
 administration with a Will of 1815, and codicils annexed, 
 limited to become a party to proceedings in Equity, touching 
 the execution of the power by such Wills : but must itself 
 decide whether the Will of 1815 was, under the circumstances, 
 revoked by the Will of 1829, and thereupon grant either a 
 probate of the Will and codicil of 1829 alone, or a probate of 
 those papers and the Will of 1815 and its codicils, as together 
 containing the Will (c). 
 
 It may be here observed, that in these cases the Court will 
 not grant a general administration, but only an administra- 
 tion limited for the purpose of substantiating and carrying on 
 the proceedings in Chancery. On one occasion {d) a defen- 
 dant in a suit in Equity having died intestate, Sir H. Jenner 
 Fust refused to make a general grant of administration to a 
 nominee of the plaintiffs in the suit, though the Vice-Chan- 
 ccllor (Sir L. Shad well) had held {e) that an administration 
 
 (a) Mitf. Plead. 177, 4th edition. ] 5.3. 
 
 {h) Ibid. 178. (d) In tlie goods of Chanter, 
 
 (c) Hughes V. Turner, 4 Hagg. 1 Robert. 273. 
 30. See also Breuchley v. Lynn, (e) Davis v. Chanter, 14 Sim, 
 
 2 Robert. 441. Accord, ante, 212. 
 pp. 328, 32[). See also pp. 152,
 
 448 
 
 Of Temporary Ad in 'mist rat ions. [Pt. i, Bk. v. 
 
 the estate of 
 the deceased 
 is properly 
 represented 
 ill a suit in 
 Chancery by 
 an administra- 
 tor limited to 
 substantiate 
 proceedings in 
 Equity : 
 
 power, kc. of 
 such an ad- 
 ministrator : 
 
 limited to substantiate proceedings (whicli bad been previously 
 granted) was insufficient, and bad directed tbe cause to stand 
 over to enable tbe plaintift" to cure tbe objection by obtaining 
 a general grant. 
 
 But tbe decision of tbe Yice-Cbancellor was afterwards 
 overruled by Lord Cottenbam, on a careful consideration of 
 tbe autborities (/) ; and it appears to be now settled, tbat if 
 tbe grantee of sucb limited letters is made a party to tbe 
 suit, tbe estate of tbe deceased is properly represented, so as 
 to enable tbe Court to proceed in tbe cause ; and a decree 
 obtained against sucb an administrator will be binding on any 
 future grantee of general letters of administration [g). 
 
 Witb respect to tbe power and interest of sucb adminis- 
 trators, a question arose in tbe case of Brant v. King (It), 
 before Sir Launcelot Sbadwell, Y.-C, Mai'cb 31, 1829 : In 
 tbat case a bill bad been filed by persons claiming certain 
 Bank Annuities standing in tbe name of a trustee, wbo, 
 pending tbe suit, died abroad, not leaving any j)ersonal 
 representative in tbis country : Administration was tberefore 
 granted by tbe Prerogative Court of Canterbury, to a person 
 residing in England, "limited for tbe purpose only to attend. 
 
 I 
 
 (/) 2 Phill. Ch. C. 545. 
 
 (g) See Accord. Faulkner i: 
 Daniel, 3 Hare, 199, ?.08. Ellice 
 V. Goodson, 2 Coll. 4. That is to 
 say, it binds the general adminis- 
 trator when appointed as to the 
 particular question involved in 
 the action, but, if the relief sought 
 for is general administration, a 
 general administrator has always 
 been required : and this rule has in 
 no way been altered by the Judi- 
 cature Act. Thus in Dowdeswell 
 V. Dowdeswell, 9 C. D. 294, 
 although the only object of the 
 suit was to establish the title of 
 the plaintiff as sole next of kin, 
 the Court held that a general 
 administrator of the intestate's 
 
 estate was a necessary party to the 
 suit and that the intestate was not 
 sufficiently represented by an ad- 
 ministrator ad litem. And an «c?- 
 ministrator ad litem of a married 
 woman does not sufficiently repre- 
 sent her separate estate, to enable 
 the Court to decide how far that 
 estate is liable in respect of her 
 acts as trustee : Shipton v. Eaw- 
 lins, 4 De G. & Sm. 477. 
 
 (h) Ex relatione Mr. Wilson, of 
 counsel in the cause. Asa general 
 proposition, an administrator ad 
 litem represents the estate to the 
 extent of the authority which the 
 letters of administration purport to 
 confer. See Daniell's Chancery 
 Practice, 6th ed., 207.
 
 Ch. III. § VI.] OJ Limited Administrations. 449 
 
 supply, substantiate, and confirm the proceedings already 
 had or that may be had in the cause, in the High Court of 
 Chancery, or any other cause which may be commenced, 
 touching the matters at issue in the cause, and until a final 
 decree shall be made therein, and the decree carried into 
 execution, and the execution thereof fully completed " (i). 
 On the petition of the plaintiff, the Vice-Chancellor made an 
 order that the Bank of England should pay to the limited 
 administrator (who had been made a party to the suit by 
 supplemental bill), the dividends in arrear, and that he 
 should pay thereout the costs of obtaining the administration 
 and of the order ; and that the limited administrator should 
 transfer (and the Bank permit the transfer) the stock to the 
 Accountant-Geueral in trust in this case : Mr. Home, for 
 the Bank, suggested a doubt whether an order for payment 
 and transfer could be made in the case of a limited adminis- 
 trator, it not having been the practice of the Bank to pay 
 dividends to, or permit a transfer by, such an administrator : 
 But the Vice-Chancellor thought the application proper, and 
 made the order, observing, that, otherwise a limited adminis- 
 tration would be useless (A). 
 
 In cases of such limited administrations, the parties cceterormn re- 
 
 presentation. 
 
 entitled to the general grant may take out a cceterorum repre- 
 sentation {I). 
 
 Further, such limited administrations in strictness ought Citation of 
 not to be granted without either the regular renunciation (jii) to the geneml 
 of the party entitled, according to the practice of the Court, ^.f^"^'"'^^!''^" 
 
 limited grant. 
 (i) This appears to be the usual (/) Harris v. Milburn, 2 Hagg. 
 
 form of letters of administration 62. But see In the goods of 
 
 limited to substantiate proceedings Currey, 5 Notes of Cas. 54. Infra. 
 in Chancery. See 2 Pliill. Ch. C. {m) In the goods of Fenton, 3 
 
 549, 550. Add. 35, where a renunciation was 
 
 (/c) This case was cited and considered insufficient, because un- 
 recognized by Lord Cottenham in accompanied by the original Will 
 Davis V. Chanter, 2 Phill. Ch. C. of the deceased. 
 551. 
 
 W.E, — VOL. I. G G
 
 '^^^ Of Temporary Ad7ninistrations. [Pt. i, Bk. v. 
 
 to the general grant ; or a citation of such party " to accept 
 or refuse : " But under peculiar circumstances this seems to 
 have been sometimes dispensed with {n). However, on one 
 occasion (t»), where a testator died in 1823, and no step was 
 taken to prove his Will till 1846, and in the meantime an ad- 
 ministration had been obtained limited to his interest in the 
 remainders of two terms, on an allegation that he was dead 
 intestate, without citation of, or renunciation by, the parties 
 entitled to the general grant ; the Court refused a cceteroriim 
 probate to the sole executrix, and stopped the practice of 
 making such grants of administration for the assignment of 
 terms without citation. 
 
 In the case of Harris v. Milhurn (p), the testator died in 
 March, 1827, having made a Will, appointing two executors, 
 and leaving his only two children, daughters, both married, 
 his residuary legatees : A suit in Chancery against the 
 deceased abated by his death : From time to time search was 
 made on the part of the suitor in Chancery, if any Will had 
 been proved, or administration taken, but without success : 
 and in October, 1827, his solicitor wrote to the husbands of 
 the daughters, inquiring whether they would take out adminis- 
 tration, and apprising them of the necessity of obtaining a 
 personal representative to the deceased's estate: Similar com- 
 munications had been made to the solicitor and nephew of the 
 testator ; apprising them also of an intended application to 
 the Court ; but no answers were returned : A decree with 
 intimation was then extracted, calling upon the daughters to 
 show cause why an administration should not be granted to 
 a nominee of the suitor in Chancery, limited to substantiate 
 
 (?i) SkefSngton v. White, 1 in number, and their residences 
 
 Hagg. 699. In the goods of Stead- were widely apart, and their ser- 
 
 man, 2 Hagg. 59. But see Skef- vice with a citation would be 
 
 tington V. White, 2 Hagg. 626. attended with great difficulty and 
 
 ^nfe, pp. 414, 415. See also In the expense. 
 
 goods of Watts, 1 Sw. & Tr. 538, (o) In the goods of Currey, 5 
 
 where a limited grant was refused, Notes of Cas. 54. 
 
 although the parties entitled to a (2?) 2 Hagg. 63, 
 general grant were more than nine
 
 Ch. III. § VI.] Of Limited Administrations. 451 
 
 proceedings there : Every reasonable effort was made to 
 serve the decree on the daughters, but the husband of one 
 would not permit access to his wife, and would give no 
 information as to the other sister, whose residence could not 
 be discovered: In December, 1827, the limited administra- 
 tion was decreed, and the proceedings in Chancery were 
 revived : In Easter Term, 1828, the executors, who at last 
 proved the Will, called in the administration, on the ground 
 that the decree was not personally served : But the Court, on 
 petition, directed it to be redelivered out, and condemned the 
 executors in costs ; observing that the regular course would 
 have been to take probate cceteroruin, and if there was any 
 fear of collusion, the executors might have intervened in the 
 Chancery suit. 
 
 Finally, an administration limited to the effects of the de- Administra- 
 tion limited 
 ceased in one country or place may be committed to one to a particular 
 
 administrator, and an administration limited to those in ^^^^' 
 
 another country or place to another (q). 
 
 It might happen, under the old practice, that a man dying 
 
 possessed of goods in two provinces made his Will of the 
 
 goods only in one of them, and died intestate as to the goods 
 
 in the other province ; and in such case administration 
 
 might have been granted as to the goods whereof he died 
 
 intestate (?')• 
 
 (q) Bac. Abr. Executor (C. 4). (r) Godolph. Pt. 2, c. 30, s. 5. 
 
 ToUei-, 106. See In the goods of Supra, 
 Mann [1891], P. 293 
 
 G f J 2
 
 452 
 
 CHAPTEE THE FOURTH. 
 
 Practice Tiefore 
 the Court of 
 Probate Act, 
 
 1857. 
 
 Bond to the 
 Ordinary by 
 administrator 
 under stat. 22 
 & 23 Car. II. 
 
 conditioned 
 
 to make a 
 true inven- 
 tory, kc. ; 
 
 OF THE ADMINISTRATION BOND TO THE ORDINARY. 
 
 In this Chapter it is proposed to consider the security 
 required of an administrator, upon administration being com- 
 mitted to him. 
 
 The statute 21 Hen. VIII. c. 5, s. 3, directs the Ordinary 
 to grant administration, " taking surety of him or them to 
 whom shall be made such commission : " and the statute 
 22 & 23 Car. II. c. 10, s. 1, further provides, that " all Or- 
 " dinaries, as well as the Judges 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, 1671, 
 " of the respective person or persons to whom any adminis- 
 " tration is to be committed, take sufficient bonds with two 
 " or more able sureties (a), respect being had to the value of 
 " the estate, in the name of the Ordinary, with the condition 
 " in form and manner following, mutatis mntaitdis, viz. 
 
 " The condition of this obligation is such, that if the 
 •'' 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 
 
 {a) By the practice of the Pre- 
 rogative Court of Canterbury, a 
 husband, taking administration to 
 
 his deceased wife, entered into 
 bond with one surety : In the 
 goods of Noel, 4 Hagg. 208.
 
 Cli. IV,] Of the Administration Bond. 453 
 
 " 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 to administer 
 " the goods, cbattels, and credits of the said deceased at the ^^ ^" ^^'^' 
 " time of his death, which, at any time after, shall come to 
 " the hands or possession of the said A. B., or into the hands 
 " and possession of any other person or persons for him, do 
 " well and truly administer according to law." 
 
 " And further do make or cause to be made, a true and to make a true 
 "just account of his said administration at or before the account of his 
 " day of : And all the rest and residue of admmistra- 
 
 " 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 pay to deliver and 
 " unto such person or persons respectively as the said Judge as^"theludge"^ 
 "or Judges by his or their decree or sentence, pursuant shall appoint : 
 " to the true intent and meaning of this Act, shall limit and 
 " appoint : " 
 
 " And if it shall hereafter appear, that any last Will and and to deliver 
 " testament was made by the said deceased, and the executor a Will shai/ 
 " or executors therein named do exhibit the same into the ^pp^^^- 
 " said Court, making request to have it allowed and approved 
 " accordingly, if the said A. B. within-bounden, being there- 
 " unto required, do render and deliver the said letters of ad- 
 " ministration (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 fores and 
 " virtue." 
 
 " Which bonds are hereby declared and enacted to be good 
 " to all intents and purposes, and pleadable in any Courts of 
 " Justice." 
 
 But by the 80th section of the Court of Probate Act (20 Repealed ly 
 & 21 Vict. c. 77), so much of the above statutes "as requires ^°'''^°^^'"'-
 
 454 Of Letters of Administration. [Pt. i. Bk. v. 
 
 bate Act, Stat. " any surety, bond or other security to be taken from a 
 20 & 21 Vict. d J J J 
 
 " person to Avhom administration shall be committed, shall be 
 
 //, s. 
 
 repealed." 
 
 Sect. 81. Per- And by sect. 81, "Every person to whom any grant of 
 grants of ad- " administration shall be committed shall give bond to the 
 ministration u j^^ ^f j.j^g (j^^j,^ ^^ Probate to enure for the benefit of 
 
 shall be made ° 
 
 shall give bond ' ' the Judge for the time being, and, if the Court of Probate 
 
 to the judge. ' T ■ • \ 1 
 
 *' or, (ill the case of a grant from a district registrar) 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, w^hich 
 
 *' 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 necessary for the solicitor for the affairs of 
 
 " the Treasury or the solicitor of the Duchy of Lancaster 
 
 " applying for or obtaining administration to the use and 
 
 " benefit of her Majesty to give any such bond as afore- 
 
 " said " (h). 
 
 Sect. 82. By sect. 82, " Such bond shall be in a penalty of double 
 
 bond. the amount under which the estate and efi"ects of the deceased 
 
 shall be sworn, unless the Court or district registrar, as the 
 
 case may be, shall in any case think fit to direct the same to 
 
 be reduced (c), in which case it shall be lawful for the Court 
 
 (6) Where, however, adminis- 15 & 16 Vict. c. 3, s. 2, repealed by 
 
 tration is granted to the Treasury 39&40Vict.c. 18,s. 9,and Sched. I., 
 
 Solicitor he shall, notwithstanding hut re-enacted by Sched. II. of 
 
 that he does not give the bond the same Act. See ante, p. 372. 
 which if sucli administration had (c) In a case where an intestate 
 
 been granted to him as a private left ^3,000, and £45 of debt, and 
 
 individual he would be required his mother solely entitled in 
 
 by law to give, be subject as distribution, the Court granted 
 
 regards the administration to the administration on the mother 
 
 liabilities and duties imposed by entering into a bond in the amount 
 
 such bond (Treasury Solicitor Act, of £100 with sureties. In the 
 
 1876), 39 & 40 Vict. c. 18. goods of Gent, 1 Sw. & Tr. 54. 
 
 And an exactly similar pro- Where administration was granted 
 
 vision with regard to administra- merely to enable a personal repre- 
 
 tion granted to the Solicitor of the sentative of the deceased to executi- 
 
 Duchy of Lancaster is contained in a formal release under a marriage
 
 Ch, IV.] Of the Administration Bond. 
 
 455 
 
 or district registrar so to do ; and the Court or district registrar 
 may also direct that more bonds than one shall be given (d), 
 so as to limit the liability of any surety to such amount 
 as the Court or district registrar shall think reasonable." 
 
 By sect. 83, " The Court may, on application, made on Sect. 83. 
 motion or petition in a summary way (e), and on being satis- courtto 
 fied that the condition of any such bond has been broken, ^^^^s^ ^°^^- 
 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 
 
 settlement the Court allowed the 
 property to be sworn under £20. 
 In the goods of Stacpoole, 2 Sw. & 
 Tr. 316, In a case where a cessate 
 grant was required for £300, the 
 value of two shares, the only 
 property not distributed, the whole 
 estate under the original grant 
 having been sworn under £3,000, 
 the Court accepted a bond in a 
 penalty of £600, being double the 
 value of the two shares. In the 
 goods of Fozard, 3 Sw. & Tr. 173. 
 
 "VVliere an estate had been partly 
 administered, and a furtlier bond 
 became necessary, the Court 
 allowed the administrator to take 
 the grant for the amount then due 
 to the estate, and to give security 
 only for double that amount. In 
 the goods of HalUwell, 10 P. D. 
 198. 
 
 And where an estate was being 
 administered in the Chancery 
 Division and an order had been 
 made that each individual share of 
 the estate should be jmid directly 
 to the parties entitled, the Court 
 allowed the penalty of the admin- 
 istration bond to be limited to 
 double the amount of the bene- 
 ficial interest of the applicant. In 
 the goods of Paxton, 14 P. D. 40. 
 
 In the goods of Bennison, ib. 
 
 (d) See In the goods of Weir, 
 1 Sw. & Tr. 506, where a sum of 
 money had been received by the 
 administrator which made it ne- 
 cessary to re-swear the amount for 
 which administration was taken 
 out, and the Court under this sec- 
 tion directed an additional bond, 
 which would, together Avith the 
 original one, be double the amount 
 under which the estate was to be 
 re-sworn. And in a case where 
 the property was large and the 
 risk small, the Court refused to 
 dispense with sureties to a bond 
 or to lessen the amount secured, 
 but allowed the security to be 
 made up of any number of bonds. 
 In the goods of Earle, 10 P. D. 
 196. 
 
 (e) See In the goods of Jones, 3 
 Sw. & Tr. 28. Baker v. Brooks, Ib. 
 32. In the goods of Young, L. K., 
 1 P. & D. 186, where it is decided 
 that the Court will allow an 
 administration bond to be assigned 
 upon being satisfied that the appli- 
 cation for the order is made bo7id 
 fide and that a prima facie case is 
 made out and that the applicant is 
 the proper iicrson to whom the 
 l)ond should be assigned.
 
 456 
 
 Creilitor who 
 is assignee of 
 bond may sue 
 in his own 
 name. 
 
 What is a 
 breach of the 
 condition of 
 such bond. 
 
 Of Lettei\s of Aduiuiidmtlun. | Tt. i. Bk. v. 
 
 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." As to differences existing between the new 
 form of bond, and that given under the Statute of Charles 
 and also as to the practice as established under the old law, 
 see the former editions of this work, and the authorities there 
 cited. Pt. I. Bk. V. Ch. 4. 
 
 In the case of Sandrcij v. Michell (/), the Court of Queen's 
 Bench appears to have been of opinion that the Court of Pro- 
 bate Act made no alteration in the law beyond this that it 
 enabled a creditor on having the bond assigned to him to sue 
 in his own name. 
 
 In that case the action was against sureties to a bond condi- 
 tioned according to the form given by the rule made in pur- 
 suance of the 81st section of the Court of Probate Act (g), 
 and which consequently contained, as part of the condition, the 
 terms (not to be found in the bond given under the statute of 
 Charles), that tlie adinin'istmtor sliall pay the debts which 
 the deceased owed at his death : The action was brought by a 
 creditor, to whom the bond had been assigned under sect. 83, 
 and the declaration alleged that assets came to the hands of 
 the administrator, and that he had wasted the same, and 
 did not pay the debt of the plaintiff : The plea was that the 
 only breach of the condition of the bond was the non- 
 payment of the debt to the plaintiff: The replication was, 
 that the administrator had wasted assets of the deceased 
 sufficient to pay the debt : And the Court of Queen's Bench 
 held, that the defendant was entitled to judgment, as the bond 
 could only be enforced for the general benefit of persons 
 interested in the estate of the intestate, and not for the non- 
 payment of a particular debt (Ji). 
 
 (/) 3 B. & S. 405. 
 ( r/) See ante, p. 454. 
 (/() The Court gave 
 
 amend the dechiration, so that the 
 plaintiff should sue as trustee 
 leave to uiKh'i- the S3rd section. * — ^ — -
 
 CIi. IV.] Of the Adiiuiilst ration Bond. 457 
 
 By Stat. 21 & 22 Vict. c. 95, s. 15, "bonds given before 21 & 22 Vict. 
 
 . c. 95 s. 15, 
 
 11 Jan. 1858, are to remain in force." bonds given' 
 
 It was held in Young v. Hughes {i) , i\\^i this enactment igs^g^/o'^re.'^^' 
 had not a retrospective effect, so as to enable the assignee of "^^i" i° ^°^^^- 
 a bond given to the Ordinary before the passing of the Court 
 of Probate Act to maintain an action commenced hy him 
 before the stat. 21 & 22 Vict. c. 95 passed. But although it 
 is plain that such a bond is not assignable under the 83rd 
 section of the Court of Probate Act, yet there seems to be 
 no doubt that, under the 15tli section of the Act above stated, 
 a bond given to the Ordinary prior to Jan. 11, 1858 (the 
 day on which the Court of Probate Act came into operation) , 
 may, at any time after the 15th section came into operation, 
 be assigned and proceeded upon by the assignee in all respects 
 as if it had been given to the Judge of the Court of Probate 
 subsequently to Jan. 11, 1858 (A;). 
 
 Where the administration is not within the statute 21 H. Breach of 
 Vin. as in the case of an administrator durante minore atate ^.j^J„ the ad- 
 with the Will annexed (0, or other grant of administration "iii'strationis 
 
 ^ ^' " not within 21 
 
 when the deceased dies intestate, and the Ordinary had taken Hen. viil. 
 a bond from the administrator, conditioned for the due payment 
 of debts and legacies, a breach might well be assigned that, 
 though he had more than sufficient to pay all the debts, he 
 has not paid a legacy (m). 
 
 (i) 4 H. & N. 76. See also r. Maxwell, L. E., 1 P. & D. 
 
 Young V. Oxley, 1 Sw. & Tr. 25, 272, where it was held that the 
 
 where Sir C. Cresswell directed Court of Probate had no juris- 
 
 an administration bond given in diction to compel administrators, 
 
 the Consistory Court of Chester to who had taken out administra- 
 
 be assigned, so that it might be tion in an Ecclesiastical Court, 
 
 put in suit at Common Law. to file inventories and accounts 
 
 (k) 4 H. & N. 84, by Pollock, in the Registry of the Court. 
 
 C. B. It seems to have been the Such inventories and accounts 
 
 opinion of Martin, B., and Chan- being by virtue of the 87th sec- 
 
 nell, B., that the 87th section of tion returnable only into the Court 
 
 the Court of Probate Act shows of Chancery, 
 
 an intention to transfer to the (Z) See cmte, pp. 400, 416. 
 
 Court of Chancery the jurisdiction {m) Folkes v. Docminique, 2 
 
 over such a bond: 4 11. & N. 84, Stra. 1137. 
 86. Sed (picere de hoc. See Bouverie
 
 458 
 
 Of Letters 0/ Administration. [Pt. i. Bk. v. 
 
 how many 
 breaches 
 might be 
 assiffnetl : 
 
 how far equity 
 will relieve 
 against for- 
 feiture of the 
 bond : 
 
 Stat. 20 k HI 
 Vict. c. 77, 
 
 s. 81. 
 
 dispensing 
 with sureties. 
 
 Where a party had obtained from the Prerogative Court a 
 general order to put the administration bond in suit against 
 the surety, the Court of Common Law, in which the action 
 was brought, could not restrain the party so empowered from 
 suggesting as many breaches as he chose, notwithstanding it 
 may appear, on affidavit, that the order was obtained from the 
 Spiritual Judge solely on one particular ground (w). 
 
 An administratrix entered into the usual bond in the 
 Prerogative Court to exhibit an inventory within a limited 
 time, &c. : The time having elapsed without an inventory 
 being exhibited, a creditor puts the bond in suit in the name 
 of the archbishop, and the administratrix filed her bill for an 
 injunction ; which was granted on the terms of her giving 
 judgment in the action, which was to stand as a security for 
 costs at law and in equity (but not for the debt) and amending 
 the bill by submitting to account (o). 
 
 It must be observed that under the 81st section of the Court 
 of Probate Act {p) the Court has power to dispense with sure- 
 ties altogether [q). 
 
 (?i) Archbishop of CauterbuT'y r. 
 Robertson, 1 Crompt. & M. 181. 
 See the observations of Sir H. 
 Jenner Fust in Crowley v. Chipp, 
 ] Curt. 460. The defendant cannot 
 plead payment of money into Court 
 as to some of the lareaches and 
 performance as to the rest : Bishop 
 of London v. McNeil, 9 Exch. 490. 
 
 (o) Thomas r. Archbishop of 
 Canterbury, 1 Cox, 399. See also 
 Bolton V. Powell, 2 De G. M. & G. 
 1,17. 
 
 {p) Ante, 1). 454. 
 
 (7) For instances where the 
 Court has exercised this power, 
 see Cleverly v. Gladdish, 2 Sw. & 
 Tr. 335, where the nnadmin- 
 istered estate of a testator had 
 been transferred to the Accountant 
 General of the Court of Chancery 
 
 and a bill filed praying for it to be 
 administered by that Court. And 
 in the case of In the goods of 
 De la Faique, ih. 631, where the 
 administrator was, in consequence 
 of sickness, in great poverty and 
 unable to induce any of his rela- 
 tions or friends to become sureties. 
 In the cases of Duchy of Cornwall 
 V. Canning, 5 P. D. 114, and In 
 the goods of Cope, 15 P. D. 107 
 tlie Court dispensed -n-ith sureties. 
 But in Jackson v. Jackson, L. R., 
 1 P. & D. 12, the Court declined 
 to dispense with justifying sureties 
 although a Receiver had been aji- 
 pointed by the Court of Chancery. 
 So in a late case of In the goods 
 of Paxton, 14 P. D. 40, the Court 
 refused to dispense with justifying 
 sureties, as being contrary to its
 
 Ch. IV.] Of the Administration Bond. 
 
 459 
 
 In an administration ])cndente lite, limited to recover certain 
 sums, and granted jointly to the nominees of the two parties 
 in the suit, the Court will not dispense with such administra- 
 tors entering into a joint bond (/•)• 
 
 If the administration he committed to a person out of Eng- 
 land, it is requisite that the sureties to the bond shall be 
 resident within the kingdom (s). 
 
 When this rule was established the assignee of the bond 
 could not have served the sureties out of England with process. 
 But since the Common Law Procedure Act, 15 & 16 Vict. 
 c. 76, s. 18, service of a person abroad may be effected. And 
 the rule has consequently been relaxed (t). 
 
 Where there has been an administration 'pendente minore 
 (State, and the minor coming of age takes upon himself the 
 
 Bond by ad- 
 ministrator 
 pendente lite. 
 
 Administra- 
 tion bond 
 when ad- 
 ministrator is 
 out of Eng- 
 land. 
 
 Whether in 
 such case the 
 sureties must 
 be resident 
 within the 
 kingdom. 
 
 Administra- 
 tion bond 
 when minor 
 comes of age. 
 
 practice, but, under the circum- 
 stances, as the estate was being 
 administered in tlie Chancery- 
 Division, the Court allowed the 
 security to be limited to twice 
 the amount of the applicant's 
 beneficial interest. And see In the 
 goods of Cormack [1891], P. 151. 
 Askew V. Askew, ih. 174. 
 
 The Court will not dispense 
 with sureties by reason ol' the 
 property being large and the risk 
 small. In the goods of Earle, 
 10 P. D. 196. In the goods 
 of McGowan, 10 P. D. 197. It 
 should be observed that the Court 
 has no power to dispense with the 
 bond : In the goods of Powis, 34 
 L. J., P. & M. 55. 
 
 (r) Stanley v. Bernes, 1 Hagg. 
 221. But see sect. 83 of the Court 
 of Probate Act, aide, pp. 455, 456. 
 
 (.s) In the goods of O'Byrne, 1 
 Hagg. 316. See also Cambiaso v. 
 Negrotto, 2 Add. 439, as to bonds 
 on grants of administration to 
 foreigners. 
 
 (() In the goods of Reed, 3 Sw. 
 
 & Tr. 439. In the goods of 
 Fernandez, 4 P. D. 229. But it 
 is still maintained as to sureties 
 resident in Scotland ; for the 
 Common Law Procedure Act, 
 s. 18, excepted jjlaces in Scotland 
 or Ireland : Herljert v. Sheill, 3 
 Sw. & Tr. 479, overruling In the 
 goods of Ballingall, ibid. 444, in 
 note. However, in the later case 
 of In the goods of Houston, L. R., 
 1 P. & D. 85, the Court accepted 
 sureties to an administration bond 
 resident in Scotland, on the ground 
 that the case was one in which 
 greater latitude miglit be allowed, 
 as the deceased had no creditors 
 and the administrator was the 
 only person beneficially interested 
 in the estate. The procedure as 
 to service of process out of the 
 jurisdiction is now governed by 
 R. S. C. 1883, Order XL, which 
 has taken the place of the pro- 
 visions of section 18 of the C. L. P. 
 Act, 1852, referred to above. As 
 to the exception of Scotland and 
 Ireland, see Order XL, r. 2.
 
 -1^0 of Letters of Admmistration. [Pt. i. Bk. v. 
 
 administration, he is obliged to give security to the same 
 amount that the administrator did in the first instance (u). 
 Justification of Justifying securities to the administration bond are called 
 
 sureties to the n ^ , t . t i • 
 
 bond : lor at the Court s discretion according to the circumstances 
 
 of each case ; except that there is one general rule, that Avhere 
 there is not a personal service of the decree on the party or 
 parties having a prior claim to the grant, justifying securities 
 are required (x). Where the securities are required to justify 
 in the ordinary course of practice, the Court will not dis- 
 pense with this, even partially, but under very special cir- 
 cumstances (y). 
 
 Where the application that the sureties may be directed 
 to justify, is made on behalf of a next of kin, the Court 
 feels bound to grant it ; but it may be sufiicient for the 
 sureties to justify in respect of the share of the party ex- 
 cluded from the administration (0). 
 
 next of kin Where administration ctim testamento annexo was granted 
 
 administrator . i ^ i i • 
 
 cum testamento to the uext of Kin, ou the grouud 01 there being no executor 
 annexo. ^^ residuary legatee who survived the testator, the party, 
 
 who had unsuccessfully claimed the administration deri- 
 vatively from the residuary legatee, prayed that the sureties 
 to the administration bond of the next of kin might be com- 
 pelled to justify ; but the Court rejected the application, as 
 contrary to the established practice {a). 
 residuary But a residuary legatee for life, taking administration with 
 
 the Will annexed, may be compelled to procure justifying 
 sureties (/>). On another occasion, the Court refused, on re- 
 
 («) Abljott r. Abbott, 2 Pliilliin. been appointed by the Court of 
 
 578. Chancery according to the practice 
 
 {x) Aitkin v. Ford, 3 Hagg. 194, before the Judicature Act, was 
 
 n. (a) : In the goods of Milligan, no ground for the dispensation : 
 
 2 Robert. 108. The Court will Jackson v. Jackson, L. R., 1 P. & 
 
 not dispense with this rule in D. 12 ; 3.5 L. J., P. & M. 3. 
 
 favour of the official assignee of a (;■ ) Coppin v. Dillon, 4 Hagg. 
 
 deceased bankrupt : Belcher r. 376. 
 
 Maberly, 2 Curt. 629. (a) Taylor i'. Diplock, 2 Phil- 
 
 {y) Howell v. Metcalfe, 2 Add. lim. 280. 
 
 348. The mere fact that a re- (/*) Friswell v. Moore, 3 Phil- 
 
 ceiver of the personal estate had lim. 139.
 
 Ch. IV.] Of the Administration Bond. 461 
 
 nunciation of a co-executor, to grant administration with the 
 Will annexed, without justifying securities, to the daughter, 
 the residuary legatee, during the lunacy of her mother, the 
 other executor and residuary legatee in trust (c). 
 
 Administration de bonis non with a Will annexed, in which legatee : 
 was no executor, was granted to one of two legatees, a decree 
 with intimation having issued in their joint names against the 
 residuary legatee ; the sureties justifying in the amount of 
 the surplus beyond the interest of the one legatee or (on a 
 proxy of consent from the other) beyond the joint interests, 
 and an affidavit of no outstanding debts being made {d) . 
 
 A husband, resident abroad, was directed, on the applica- husband resi- 
 tion of creditors, to give justifying security resident within 
 the jurisdiction, on taking a grant of administration to his 
 wife (e). 
 
 There may also be justifying sureties required to the ad- temporary aii- 
 
 • •,,•■> 1 • e . ^ 1 • • , ministrator : 
 
 mmistration bond m cases oi temporary general admmistra- 
 tion ; as durante minore cetate (/) ; or on a grant to a widow, 
 where there is a minor daughter entitled in distribution, 
 limited till a last Will is found ( g) ; or on a grant to the use 
 and benefit of a lunatic, pending the lunacy (h). 
 
 Under the old practice if the Court decreed a general grant, under the old 
 but, under special circumstances, required the sureties to Oourt would 
 justify only as to a j^art of the property, it would not allow "*''' *,'^°^, ^^'^^ 
 separate bonds, so that otlier securities than those who justi- 
 ^ed in the requisite amount entered into the common 
 administration bond, in the double amount of the wJioIe 
 property (;"). 
 
 In an administration iicndentc lite limited to recover certain 
 
 (c) In the goods of Hardstone, 350. 
 1 Hagg. 487. See also, In the ((/) In the goods of Caniijbell, 
 
 goods of Williams, 3 Hagg. 217. 2 Hagg. 555. 
 
 {d) Pickering v. Pickering, 1 (/t) /1;(^(', p. 441. 
 
 Hagg. 480. (i) Howell v. Metcalfe, 2 Add. 
 
 (e) In the goods of Noel, 4 348. But see now s. 82 of the 
 
 Hagg. 207. Court of Probate Act, ante, p. 454. 
 
 (/) Howell V. Metcalfe, 2 Add.
 
 462 
 
 Administra- 
 tion bond by- 
 attorney of 
 next of kin. 
 
 Administra- 
 tion bond by a 
 third person 
 for a wife en- 
 titled to ad- 
 ministration 
 ■n'lien the hus- 
 band refuses 
 to execute one. 
 
 Third person 
 allowed to file 
 affidavit of 
 increase and 
 execute bond. 
 
 Court will not 
 discharge 
 
 Of Letters of Administration. [Pt. i. Bk. v. 
 
 sums, and granted jointly to the nominees of the two parties 
 in the suit, the Court would not dispense with such adminis- 
 trators entering into a joint bond [h). 
 
 Where a person is authorised by a simple power of at- 
 torney to take out administration as agent for the use and 
 benefit of a party entitled to administration who is abroad, 
 the Court will only grant administration to the agent on the 
 same terms as it would have granted it to the party himself, 
 and, therefore, will not alter the usual conditions of the 
 administration bond or the terms of the ordinary administra- 
 tion oath {I). 
 
 In a case decided before the Married Women's Property 
 Act, 1882, the husband of a married woman who was entitled 
 to administration refused to execute the administration bond 
 or to assist in her obtaining the grant, and the Court granted 
 administration to her and allowed a third person to execute 
 the bond {m). Where the administrator was in Japan, and a 
 considerable sum became payable to the estate of the deceased 
 under an order of the Court of Chancery, the Court allowed 
 another person to file an affidavit as to the increase of property, 
 and to execute the bond to cover the increased duty (in the 
 place of the administrator), with two sureties on the under- 
 standing that as soon as possible the administrator should 
 execute a similar bond {n). 
 
 The Court will not discharge the original sureties to an 
 
 Qc) Stanley v. Bemes, 1 Hagg. 
 221. See furtlier as to the practice 
 respecting the sureties to adminis- 
 tration Londs, Bond r. Bond, 1 Cas. 
 temp. Lee, 429. Allen v. Allen, 
 2 Cas. temp. Lee, 244. See further 
 as to the practice with respect to 
 suing on administration bonds, In 
 the goods of Irving, L. K., 2 P. «& 
 D. 658. 
 
 (/) In the goods of Golds- 
 borough, 1 Sw. & Tr. 295. 
 
 {m) In the goods of Sutherland, 
 
 4 Sw. & Tr. 1 89. Since the Married 
 Women's Property Act, 1882, 
 however, when a married woman 
 is administratrix, it is not necessary 
 that her husband should join in 
 the administration bond ; the 
 husband incurring no responsi- 
 bility, and the grant conferring no 
 benefit upon him. In the goods 
 of Ayres, 8 P. D. 168. 
 
 {n) In the goods of Eoss, 2 P. D. 
 274.
 
 Ch. IV.] Of the Administration Bond. 463 
 
 administration bond and allow other sureties to be substituted original 
 
 sureties. 
 for them (o). 
 
 It remains to mention such rules of the Court of Probate 
 as apply to administration bonds. 
 
 By rule 38, P. K. (Non-contentious Business), " Admi- Rule 38, P. R. 
 nistration bonds are to be attested by an officer of the prin- \i^^^ B^si. 
 cipal registry, by a district registrar, or by a commissioner or °®^^^- ^^^° 
 other person now or hereafter to be authorised to administer the bond, 
 oaths under 20 & 21 Vict. c. 77, and 21 & 22 Vict. c. 95 ; 
 but in no case are they to be attested by a proctor, soli- 
 citor, 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" {p). 
 
 By rule 39, " In all cases of limited or special administra- Rule 39. 
 tion two sureties are to be required to the administration sureties and 
 bond (unless the administrator be the husband of the de- ^™°^^t °^ 
 ceased or his representative, 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 {q) . 
 The alleged value of such property is to be verified by affidavits 
 if required.' ' 
 
 By rule 40, " The administration bond is, in all cases of limi- Rule 40. 
 ted or special administrations, to be prepared in the registry." of^k)nd.^°° 
 
 By rule 41, " The registrars are to take care (as far as Rule 41. 
 possible) that the sureties to administration bonds are re- responsible 
 sponsible persons " (7-). persons. 
 
 (0) In the goods of Stark, L. R., (c) The " Guarantee Society " 
 
 1 P. & D. 76. has been accepted by the Court as 
 
 {jp) But this rule may be dis- surety to a bond given by an /-^ eL-d^eU^^e^, 
 
 pensed with : In the goods of administrator pending suit, even 
 
 Parker, L. R., 1 P. & D. 301. though the directors do not by 
 
 {q) As to reducing the penalty bond render themselves per- 
 
 of the bond, see ante, p. 454, and sonally liable. Ciarpenter v. 
 
 as to dispensing with sureties, see Queen's Proctor, 7 P. D. 235. 
 ante, pp. 454, 458.
 
 464 
 
 BOOK THE SIXTH. 
 
 OF THE EFFECT OF PROBATE AND LETTERS OF ADMIXISTRA- 
 TION, AS LOXG AS THEY ARE UNREVOKED :— OF THE REVO- 
 CATION OF THEM, AND OP THE CONSEQUENCES THEREOF. 
 
 CHAPTER THE FIRST. 
 
 As to what 
 facts probate, 
 kc, is con- 
 clusive. 
 
 OF THE EFFECT OF PPtOBATE AND LETTERS OF ADMINISTRATION 
 AS LONG AS THEY REMAIN UNREPEALED. 
 
 It is a legal cousequence of the exclusive jurisdiction of the 
 Probate Division in deciding on the validity of Wills of per- 
 sonalty, and granting administration, that its sentences pro- 
 nounced in the exercise of such exclusive jurisdiction, should 
 be conclusive evidence of the right directly determined (a). 
 Hence a probate, even in common form, unrevoked, is con- 
 clusive both in the Courts of Law and of Equity (&), as to the 
 appointment of executor, and the validity and contents of a 
 Will, so far as it extends to personal property : and it cannot 
 be impeached by evidence even of fraud (c). 
 
 Therefore, it is not allowable to prove that another person 
 was appointed executor, or that the testator was insane, or 
 
 (a) 1 Phil. Ev. 343, 7tli edit, 
 
 (b) Allen v. Dundas, 3 T. R. 125. 
 Griffiths V. Hamilton, 12 Ves. 
 298. Jones v. Jones, 3 Meriv. 
 171. All the cases on this sub- 
 ject will be found collected and 
 commented on with great ability 
 in Hargrave's Law Tracts, p. 459, 
 et seq. A probate obtained, as a 
 matter of course, on a Scotch 
 
 confirmation, under stat. 21 & 22 
 Vict. c. 56 (see ante, p. 298), stands 
 on the same footing ; and it makes 
 no difference that proceedings are 
 pending in Scotland for a reduc- 
 tion of the confirmation : Gum- 
 ming V. Fraser, 28 Beav. 614. 
 
 (c) Griffiths v. Hamilton, 12 Ves. 
 307. Ante, p. 38, n. (w). Post, 
 ])p. 472, 473.
 
 Ch. I.] Of the Efect of Probate, S:c. 
 
 465 
 
 that the Will of which the prohate has been granted was 
 forged : for that would be directly contrary to the seal of the 
 Court in a matter within its exclusive jurisdiction {d). So 
 the probate of a Will conclusively establishes in all Courts 
 that the Will was executed according to the law of the 
 country where the testator was domiciled (c). 
 
 In short, without the constat of the Court of Probate, no 
 other Court can take notice of the rights of representation to 
 personal property ; and when that Court has, by the grant of 
 probate or letters of administration, established the right, no 
 other Court can permit it to be gainsay ed (/). 
 
 By the Court of Probate Act (20 & 21 Vict. c. 77, s. 75), Stat. 20 & 21 
 
 Vict c 77 
 
 " After any grant of administration, no person shall have s. 75. 
 power to sue or prosecute any suit, or otherwise act as 
 executor of the deceased, as to the personal estate comprised 
 in, or affected by, such grant of administration, until such 
 administration shall have been recalled or revoked." 
 
 So, in Bouchier v. Taylor {g), it was decided by the House After sentence 
 
 of Ecclesiasti- 
 
 {(l) Noel V. Wells, 1 Sid. 359. 
 
 (e) Whicker v. Hume, 7 H. of 
 L. 124. A probate is conclusive 
 evidence that the instrument 
 proved was testamentary accord- 
 ing to the law of this country, but 
 it proves nothing else : Whicker 
 V. Hume, 7 H. of L. 124. There- 
 fore the fact that probate of a Will 
 has been granted by an English 
 Court is not conclusive that the 
 testator was domiciled in England, 
 even though the Will is in such 
 form that, though admissible as a 
 testamentary instrument accord- 
 ing to the English law, it would 
 not have been entitled to probate, 
 according to the law of the country 
 of the true domicil of the deceased : 
 Bradford v. Young, 26 C. D. 656 ; 
 29 C. D. 617. And it would seem 
 from the decision of the House of 
 Lords in Concha u Concha, 11 App. 
 W.E. — VOL. I. 
 
 Cas. 541, that even though the 
 facts had been such that the Court 
 in granting probate decided, and 
 necessarily decided, the question of 
 domicil (which was not the case in 
 Concha v. Concha), yet the judg- 
 ment would not have bound every- 
 body as a judgment in rem, but 
 would leave open the question of 
 domicil, so far as regards the 
 distribution of the residuary sum 
 of the testator's property after all 
 the creditors, who had a right to 
 come upon it, had been sufficiently 
 paid oft'. 
 
 (/ ) Attorney-GeneraU'. Parting- 
 ton, 3 Hurl. & C. 204. Re Ivory, 
 10 C. D. 372. 
 
 (y) 4 Bro. C. 708, Toml. edit. 
 See Hargrave's Law Tracts, 
 pp. 472-476. The case of Bouchier 
 V. Taylor was much discussed in 
 the House of Lords in Concha 
 ji n
 
 466 
 
 Of the Effect of Probate, dc. [Pt. i. Bk. vi. 
 
 ca.1 Court 
 iletermining 
 who are next 
 of kin no issue 
 can be directed 
 by Court of 
 Chancery to 
 try such 
 question. 
 
 Payment to 
 executor who 
 has obtained 
 probate of 
 forged Will is 
 good discharge 
 of debtor. 
 
 of Lords that after a sentence in the Ecclesiastical Court 
 determining the question who are the next of kin of the in- 
 testate, and granting letters of administration to the person 
 found to be such next of kin, the Court of Chancery is pre- 
 cluded from directing any issue to try that question. And 
 this decision was held by Lord Lyndhurst in Bar?' v. Jack- 
 son (li) (reversing the decree of Knight Bruce, V.-C.) (i), to be 
 a binding authority for the proposition, that if the sentence 
 of the Ecclesiastical Court, in a suit for administration, turns 
 upon the question of which of the parties is next of kin to 
 the intestate, such sentence is conclusive upon that question 
 in a subsequent suit in the Court of Chancery, between the 
 same parties, for distribution (A). 
 
 Upon this principle it was decided, that payment of money 
 to an executor, who has obtained probate of a forged Will, is 
 a discharge to the debtor of the deceased, notwithstanding the 
 probate be afterwards declared null in the Ecclesiastical 
 Court, and administration be granted to the intestate's next 
 of kin (l) : for if the executor had brought an action against 
 
 V. Concha (^ubi sup.), and distin- 
 guished on the ground, Istly, that 
 the question as to which the 
 residuary legatee u.nder the Will 
 of Alice Merchant was held bound 
 by reason of the decision against 
 his predecessor in title, was the 
 very point which had to be decided 
 by the Spiritual Court in the litiga- 
 tion between Dr. Bouchier and the 
 executors of Alice Merchant : and 
 2ndly, that at that time the 
 Spiritual Court was a Court of 
 distribution as well as a Court 
 merely to determine the question 
 of the validity of the testament, 
 and to grant probate or adminis- 
 tration. 
 
 (h) 1 Phill. C. C. 582. 
 
 (i) 1 Y. & Coll. C. C. 585. 
 
 {k) So long as letters of adminis- 
 tration remain in force they are 
 conclusive evidence that the 
 
 administrator to whom as next 
 of kin thej'- were granted, is in 
 fact such next of kin. Be Ivory, 
 10 C. D. 372, per Lush, J., 374. 
 In Long V. Wakeling, 1 Beav. 400, 
 where A. B. being entitled to a 
 fund in Court, died, and adminis- 
 tration was granted to a person, as 
 " the natural and lawful sister " 
 of A. B. ; and it appeared from 
 the proceedings in the cause, that 
 A. B. was illegitimate, the Court 
 refused to pay the fund to the 
 administratrix, but directed it to be 
 carried over to a separate account, 
 with directions that it should not 
 be paid out of Court without 
 notice to the Crown. 
 
 (l) Allen V. Dundas, 3 T. E. 125. 
 See also Prosser v. "Wagner, 1 C. B., 
 N. S. 289, and stat. 20 & 21 Vict, 
 c. 77, s. 77, 2^ost, p. 500.
 
 Ch. I.] How far conclusive. 467 
 
 the debtor, the latter could not have controverted the title of 
 the executor, as long as the probate was unrepealed : and the 
 debtor was not obliged to wait for a suit, when he knew that 
 no defence could be made to it {m). 
 
 When there is a question, whether particular legacies 
 given by a Will are cumulative or substituted, it is often 
 determined by the circumstance of the bequest having been 
 given by distinct instruments (w). In such a case, if the pro- 
 bate has been granted, as of a Will and codicil, this is con- 
 clusive of the fact of their being distinct instruments, though 
 written on the same paper {o). 
 
 The probate is also conclusive as to every part of the Will Probate con- 
 
 . , -if 1 • elusive as to 
 
 m respect ot which it has been granted : tor example, in every part of 
 Plume V, Bcale (p), where an executor proved a Will of ^ ' 
 personal property, and then brought a bill in equity to be 
 relieved against a particular legacy, on the ground of its 
 having been interlined in the Will by forgery, Lord Cowper 
 dismissed the bill with costs, observing, that the executor 
 might have proved the Will in the Ecclesiastical Court, with 
 a particular reservation as to that legacy (q). 
 
 But though Courts of Equity were bound to receive, as tes- In what cases 
 tamentary, a Will, in all its parts, which had been proved in Equity will 
 the proper spiritual Court, yet Courts of Equity, in certain I'^t'^'^*^'''^- 
 cases, affect with a trust a particular legacy or a residuary 
 bequest, which has been obtained by fraud (r). For instance, 
 if the drawer of a Will should fraudulently insert his own 
 
 (m) Allen v. Dundas, 3 T. R. did not authorize a payment to 
 
 129. Where, however, a sum of Sanders, and that a party giving 
 
 stock was standing in the name faith to the probate was bound to 
 
 of a testatrix, which her executors see that the person claiming under 
 
 overlooked, and, the dividends it was a real T. Hunt : Ex parte 
 
 remaining unclaimed, the stock Jolliffe, 8 Beav. 168. 
 was transferred to the National (h) See infra, Pt. in. Bk. in. 
 
 (Commissioners ; and afterwards, Ch. ii. § viii. 
 one Sanders procured a probate in (o) Baillie r. Butterlield, 1 Cox, 
 
 the name of T. Hunt, of a forged 392 . 
 Will of the testatrix, and obtained ( 2^) 1 !'• Wms. 388. 
 
 a transfer ; it was held by Lord (q) See ante, p. 315 {t). 
 
 Langdale, M.R., that the probate (r) Mitf. Plead. 257, 4th edit. 
 
 II II 2
 
 468 
 
 Of the Effect of Probate, &c. [Pt. i. Bk. vi. 
 
 name, instead of that of a legatee, lie would be considered in 
 equity as a trustee for the real legatee (s). And it has never 
 been thought that Courts of Equity, by declaring a trust, in 
 such cases, infringed upon the jurisdiction of the Ecclesiasti- 
 cal Courts (0. 
 
 Again, although it is now settled that a AVill cannot, either 
 before or after probate, be set aside in equity, on the ground 
 that tlie Will was obtained hj fraud on the testator, yet where 
 ■probate has been obtained hj fraud on the next of kin. Equity 
 interferes and either converts the wrongdoer into a trustee, 
 in respect of such probate, or obliges him to consent to a 
 repeal or revocation of it in the Court in which it was 
 granted (»). Thus in Barncshj v. Poiccll(c), the bill sought 
 to be relieved against a paper writing, purporting to be the 
 
 (s) Harriot v. Mariiot, 1 Stra. 
 666. Mitf. PI. 258, 4tli edir. See 
 post, p. 473, note (/). So in 
 Segrave r. Kinvaii, 1 Beat. 157, 
 the executor, who was a hairister, 
 had himself prepared the Will, 
 the rule of law at the time being, 
 that the executor was entitled to 
 the residue unless otherwise dis- 
 posed of, or imless a legacy was 
 beti^ueathed to him. (See post, 
 Pt. III. Bk. III. Ch. v. § II.) And 
 Sir A. Hart held that it was the 
 duty of the executor to have in- 
 formed the testator that such was 
 the rule, and that he could not be 
 allowed to profit from this omis- 
 sion, but must ])e decreed to be a 
 trustee for the next of kin. See 
 also Bulkeley v. Wilford, 2 CI. & 
 F. 102. S. C. 8 Bligh, 111. It 
 was held by Sir J. Stuart, Y.-C. 
 (notwithstanding the case of Allen 
 •I'. McPherson, post, p. 472, et seq.) 
 that the Court, under its equitable 
 jurisdiction, has authority to de- 
 clare an attorney a trustee for the 
 heir at law and next of kin of real 
 
 and personal estate given him by 
 a Will prepared by himself, where 
 he has improperly taken advan- 
 tage of the testator's ignorance, 
 or allowed him to remain imder 
 a mistaken impression which in- 
 fluenced the gift : Hindson v. 
 W^eatherill, 1 Sm. & G. 609. But 
 this decision was reversed on 
 appeal, on the facts, the Lords 
 Justices declining to give any 
 opinion on the law of the case : 
 Lord Justice Turner, however, 
 distinguished it from Segrave v. 
 Kirwiin, observing that in that 
 case the testator had no intention 
 to benefit Kirwan the counsel : 
 5 De G. M. & G. 301. See also 
 Walker v. Smith, 29 Beav. 394. 
 
 (0 1 Stra. 673. Gilb. Eq. Rep. 
 209. Fonbl. Eq. Bk. 4, Pt. 2, c. 1, 
 s. 1, n. (a). 
 
 (h) Mitf. PI. 357, 4th edition. 
 
 (i-) 1 Ves. Sen. 119, 284, 287. 
 2 Roper, Leg. 688, 3rd edition ; 
 recognized by Lord Cottenham in 
 Price r. Dewhurst, 4 M. & Cr. 85,
 
 Cli. I.] How far conclusive. 469 
 
 Will of tlio plaintiff's father, under which the defendant, 
 Mansel Powell, claimed, and which was not without evidence 
 to support it, although there was strong suspicion of forgery : 
 It was also sought to he relieved against several acts of the 
 plaintiff since his father's death ; such as the decree of the 
 Court of Exchequer against him and a sentence in the 
 Prerogative Court, wherein the plaintift"s consent to estahlish 
 that Will by a probate was obtained, and a conveyance and 
 assurances made by him : Lord Hardwicke, C, directed an 
 issue, with a special direction on the decretal order, to know 
 on what foundation the jury wont, if they found against the 
 Will, whether upon forgery, or any particular defect in the 
 execution ; and his Lordship, after making some observa- 
 tions, with respect to the relief against the decree of the 
 Court of Exchequer, proceeded to remark, " As to the 
 sentence of the Prerogative Court, as at present advised, that 
 will create no difficulty if the Will is found forged ; for then 
 the plaintiff's consent appearing to have been obtained by 
 the misrepresentation of that forged Will, that fraud infects 
 the sentence ; against which the relief must be here : This is 
 not absolute, but only to show the tendency of my opinion 
 upon the equity reserved after the trial ; for I should not 
 scruple decreeing the defendant, who obtained that probate, 
 to stand as a trustee in respect of the probate ; which would 
 not overturn the jurisdiction of that Court." After a very 
 long trial by a special jury, a verdict was brought in against 
 the Will, with an indorsement that it was grounded on 
 forgery, and not on any defect in the execution. Upon the 
 equity reserved. Lord Hardwicke admitted that undoubtedly 
 the jurisdiction of the Wills of personal estate belonged to the 
 Ecclesiastical Court, according to which law it must be tried, 
 notAvithstanding the Will is found forged by a jury at law, 
 upon the examination of witnesses ; but there was a material 
 difference between the Court of Chancery taking upon itself 
 to set aside a Will of personal estate on account of fraud or 
 forgery in obtaining or making that Will, and taking from 
 the party the benefit of a Will estal)lishcd in the Ecclesiasti-
 
 470 Of the Effect of Prolate, dec. [Pt. i. Bk. vi. 
 
 cal Court by his fraud, not upon the testator, but the person 
 disinherited thereby : That fraud in obtaining a Will infected 
 the whole ; but the case of a "Will, of which the probate was 
 obtained by fraud on the next of kin, was of another con- 
 sideration {x) : That, in the case before him, the plaintiff had 
 given a covenant to the defendant to do all acts which Powell 
 should require of him ; in consequence of which, a special 
 proxy under hand and seal was obtained from him, confessing 
 the allegations ; upon which sentence was pronounced of pro- 
 bate to the defendants, the executors : The probate depended 
 on that deed : and it was, therefore, proper for the Court to 
 inquire, and set it aside for fraud, if proved ; and that was 
 the ground of jurisdiction in the Court of Chancery, distinct 
 from the Will itself, and abstracted from the general juris- 
 diction of the Ecclesiastical Court to determine of a Will of 
 personal estate : On the whole circumstances of the case, 
 his Lordship decreed, that the defendants should consent (?/), 
 in the Ecclesiastical Court, the next term, to a revocation 
 of the probate, and that, after such revocation, the defen- 
 dants should have a fortnight's time to propound the paper 
 writing in the Ecclesiastical Court ; on failure of which, his 
 Lordship said he would compel the defendants to consent 
 to the granting administration to the plaintiff : and his 
 
 (x) The distinction here taken and judgment were taken for 
 
 by Lord Hardwicke was recog- establishing the earlier Will, 
 
 nized by Lord Apsley in Meadows Subsequently P. discovered that 
 
 V. Duchess of Kingston, Ambl. the earlier Will was a forgery, and 
 
 764. in action in the Chancery Division 
 
 (y) Even if tliere had been no to which T. and G. were parties 
 
 such decree and no consent by the obtained the verdict of a jury to 
 
 defendants, it would seem that in that effect and judgment that the 
 
 a suit for revocation the defen- compromise should be set aside, 
 
 dants would have been estopped In another action in the Probate 
 
 from denying that the Will was a Division for revocation of the 
 
 forgery. Thus in Priestman v. probate of the earlier Will it was 
 
 Thomas, 9 P. D. 210, in an action held, affirming the decision of the 
 
 in the Probate Division, T. and G. President of the Probate Division 
 
 propounded an earlier and P. a (9 P. D. 70), that T. and G. were 
 
 later Will. The action was com- estopped from denying the forgery, 
 promised, and by consent verdict
 
 Ch. I.] Hoiv far conclusive. 471 
 
 Lordship added, "I think I ought to go further; and 
 although I shall not yet decree a trust, yet even now I shall 
 be warranted to decree an account of the personal estate, to 
 be i?aid into the Bank, for the benefit of the parties entitled, 
 which for security was done in Poivis v. Andrews ; and the 
 present case, from all the ill practice that has been, is 
 stronger than that. This is the better method, to avoid any 
 jealousy of infringing on the Ecclesiastical Court." It being 
 insisted for the plaintiff, that the Court ought to direct no 
 examination of the said paper writing, but grant a perpetual 
 injunction, from the circumstances of its being produced 
 and found with the forged Will, and its reciting a forged 
 deed : his Lordship thought this would be a very good de- 
 fence in the Ecclesiastical Court, as they were circumstances 
 of suspicion ; but that it would be going too far to say, that, 
 because of ill practice in one Will, he should have no right as 
 to another. 
 
 The effect of this decision was considered in the case of 
 Gingell v. Home {z). There, after a Will of personalty had 
 been proved jier testes in the Ecclesiastical Court, a bill 
 was filed by the next of kin, alleging that the testator's 
 signature to the Will was obtained when he was not of sound 
 and disposing mind ; that his medical attendants were not 
 called as witnesses when the probate was obtained ; and that 
 the evidence of the testator's incompetency did not come to 
 the knowledge of the plaintifi"s until after the time allowed 
 for appealing from the sentence of the Ecclesiastical Court 
 had expired ; and praying that the Will might be declared 
 to have been fraudulently obtained, and that the residuary 
 legatee might be declared a trustee for the plaintiffs : A 
 demurrer to the bill was allowed by Sir L. Shadwell, V.-C. : 
 And his Honour said, he had long considered the law as 
 settled, that there is no method of escaping from the effect of 
 probate, unless in a case like Barnesly v. Powell: That in 
 the present case no fraud was practised on the plaintiffs in 
 
 (z) 9 Sim. 539.
 
 472 Of the Effect of rrohatc, &c. [Pt. I. Bk. vi. 
 
 obtaining probate ; and this bill, therefore, did not afford any 
 such materials for the interference of the Court as there were 
 in Barncsly v. PbwcU, in which Lord Hardwicke made a 
 decree which afforded an opportunity of having the matter 
 reconsidered in the Ecclesiastical Court. 
 
 The subject was much discussed in the case of Allen v. 
 Macphei'son (a). There the testator had by his Will and 
 subsequent codicils bequeathed considerable property to 
 the plaintiff, and made also other bequests to other relatives : 
 he afterwards, by a further codicil, revoked these bequests, 
 and in lieu of them made a small pecuniary provision 
 for the plaintiff: The bill alleged that this codicil was 
 obtained by false and fraudulent representations, made by 
 an illegitimate son of the testator, acting in confederacy 
 with the defendant, his daughter and residuary legatee, as 
 to the character and conduct of the plaintiff: In the 
 Ecclesiastical Court, the plaintiff had unsuccessfully resisted 
 the admission to probate of the revoking codicil, on the 
 ground that it had been obtained by undue influence : And 
 the bill further stated that the appellant was confined in that 
 Court to grounds of objection which affected the codicil as 
 an entire instrument, and was not permitted to go into 
 the case stated in the bill or into any other case solely re- 
 lating to the parts of the codicil which affected only the 
 appellant : To this bill the defendant demurred : Lord 
 Langdale, M.R., overruled the demurrer, being of opinion 
 that, by analogy to former decisions, as the bill alleged that 
 the revocation had been procured by the fraud of the de- 
 fendant, the Court of Chancery had jurisdiction to deprive 
 her of the benefit of it, and to declare her to be a trustee of 
 that to which the law entitled her for the benefit of the 
 person to whose prejudice the fraud was practised {h). But 
 this decision was reversed by Lord Lyndhurst, C, on appeal, 
 and his Lordship relied on the distinction taken by Lord 
 
 (a) 5 Beav. 469. 1 Phil. C. C. {h) 5 Beav. 469. 
 
 1.33, IH. ofL. 191.
 
 CIi. I.] How fat' convhidve. 473 
 
 Hai'dwicke (as above stated), in Barnesly v. Powell, and 
 recognised by Lord Apsley in Meadows v. The Duchess of 
 Kingston (c), between fraud on the testator and fraud upon 
 the person disinherited thereby : His Lordship further relied 
 on Kcrrich v. Bmushtj{d), as a decision of the House of 
 Lords established not merely that a Will cannot be set aside 
 in Equity for fraud (c), but further, that the Court of 
 Chancery has no jurisdiction to declare the fraudulent lega- 
 tee a trustee for the party defrauded. And this decision was 
 afterwards affirmed on appeal to the House of Lords ; their 
 Lordships holding that the Ecclesiastical Court had juris- 
 diction to refuse and ought to have refused probate of that 
 part of the codicil which affected the appellant, because, 
 giving credit to the facts stated by the bill and admitted by 
 the demurrer, that part of the codicil was not the will of 
 the testator, having been obtained by a fraud practised on 
 him ; but that the proper course would have been to appeal 
 to the Privy Council in order to set the matter right, and 
 not to file a bill in Equity, which was, in effect, an attempt 
 to review the decision of a Court of Probate by the Court 
 of Chancery (/). 
 
 (c) Ambl. 762. Ante, p. 470, with the history of the case, 
 note (x). expressly states in Barnesly v. 
 
 (d) 7 Bro. P. C. 437. Ante, Powell, that it was decided on 
 p. 464, n. (c). the question of jurisdiction. And 
 
 (e) But Lord Abinger, C.B., in Lord Eldon, in Ex ■parte Fearon, 5 
 his judgment in Middleton v. Ves. 63.3, 647, observed that it was 
 Sherburne, 4 Y. & ColL Exch. C. determined in Kerrich v. Bransby 
 358, argued with much pains that that the Court of Chancery could 
 in Kerrich v. Bransby, the bill was not take any cognizance of Wills 
 dismissed on the merits, and that of pei'sonal estate as to matter of 
 the case is, therefore, no authority fraud. 
 
 for the proposition that a Will (/) IH. ofL. 191. Lords Lynd- 
 
 cannot be set aside in equity for hurst, Brougham, and Campbell 
 
 fraud. — That, however (observed were of opinion that the decree 
 
 Lord Lyndhurst, in Allen v. Mac- should be affirmed, dissentientibus 
 
 pherson, 1 Phil. C. C. 146), has Lords Cottenham, C, and Lang- 
 
 not been the understanding of the dale, M.R. Lord Lyndhurst, in 
 
 profession, and Lord Hardwicke, the course of delivering his 
 
 who prolialily was acquainted opinion, observed as to the case
 
 474 Of the Effect of Probate, &c. [Pt. i. Bk. vi. 
 
 Further, the Court of construction, may, under particular 
 circumstances, so construe an instrument, of which probate has 
 been obtained, as to render it ineffectual. Thus in Gaicler 
 V. Standerwick (r/), a paper was proved in the Spiritual 
 Court as a Codicil of the testator, which was signed by the 
 executors and others, and purported to be an acknowledg- 
 ment of what they understood to be the will of the testator, 
 when he was unable to speak, in favour of certain legatees ; 
 and a bill having been filed in equity, a question was raised 
 whether they were entitled to their legacies under this 
 paper proved as a codicil : Sir Lloyd Kenyon, Master of the 
 Rolls, said that, as it had been proved in the Spiritual Court, 
 he was bound to receive it as a testamentary paper ; but 
 having so done, the Court of Equity was to construe it: Now 
 the effect of this codicil was only that the parties understood 
 it to be the Will of the testator that the asserted legatees 
 should have legacies, and the heir promised to perform 
 this ; but the Court could not convert the promise of the 
 heir into the "Will of the testator ; and his Honour, therefore, 
 thought that this paper, though testamentary, yet operated 
 nothing. 
 
 Again, in Walsh v. Gladstone (//), the testator had drawn 
 two cheques on his banker in favour of two of his servants, 
 with a direction that the cheques should be presented after 
 his death : about a year afterwards he made a formal Will, 
 in which, among other bequests, he gave an annuity to each 
 
 mentioned by Gilbert, C.B., in declared a legatee or executor to 
 
 Marriot r. Marriot {ante, p. 468, be a trustee for other persons, that 
 
 n. (s) ), of the drawer of the Will they have been either cj^uestious of 
 
 fraudulently inserting his own construction, or cases in which the 
 
 name instead of that of the legatee, party had been named as trustee, 
 
 that if probate were refused in or had engaged to take as such, 
 
 such a case, on account of the or in which the Court of Probate 
 
 fraud, the real legatee would lose could afford no adequate or proper 
 
 his legacy. And his lordship remedy. See also Melhuish r. 
 
 added, that he thought it would Milton, 3 C. D. 27. 
 be found, on examining the cases {g) 2 Cox, 16. 
 
 in which the House of Lords had (h) 1,3 Sim. 261.
 
 Ch. I.] How far co7iclusive. 475 
 
 of the two servants, and the residue of his personal estate 
 to certain other persons, and revoked all former Wills : After 
 his death all the three instruments were admitted to probate 
 as constituting, together, his last Will : and it was held by 
 Shadwell, V.-C, that, although he was bound by the deci- 
 sion of the Ecclesiastical Court, to consider the two cheques 
 as part of the Will, yet that nothing which that Court had 
 done in the way of construction, would bind the Court of 
 Chancery ; and his Honour proceeded to state that his 
 opinion, sitting in the Court of Construction, was that the 
 bequests made by the cheques were revoked by the AVill ; 
 and he decreed accordingly. This decision was afterwards 
 affirmed by Lord Lyndhurst, C. (i), who considered the 
 question as one of construction, which it was within the 
 competence of the Court of Chancery to determine, notwith- 
 standing the probate granted by the Ecclesiastical Court : 
 And his Lordship relied on the case above stated, of Gaaier 
 V. Standerwick, and also that of Campbell y. Lord Radnor (k), 
 in which it was declared that the first codicil, which had 
 been admitted to probate, was to be considered as virtually 
 revoked by the second (l). 
 
 Accordingly in Thornton v. Curling (m), Lord Eldon, C, 
 expressed his opinion that if a British subject domiciled in 
 a foreign country, by his Will appoints an executor, but 
 makes a disposition of his personal property, which, though 
 valid by the laws of England, is invalid by the laws of that 
 foreign country, the Court of Chancery is at liberty, not- 
 withstanding probate may have been granted in this country, 
 to hold that the Will has no operation beyond appointing 
 the executor : And his Lordship observed that although, 
 as the Ecclesiastical Court had granted probate of the Will, 
 he must take it to be a Will, yet what part of the con- 
 tents of that Will was effectual, and in what way the 
 
 (i) 1 Phill. C. C. 294. Ch. ii. § vii. 
 
 {};) 1 Bro. C. C. 171. {m) 8 Sim. 310. 
 
 (1) See Posf, Pt. III. Bk. iii.
 
 476 Of the Effect of Prolate, de. [Pt. i. Bk. vi. 
 
 Court should determine on the property, was quite a different 
 thing {n). 
 
 So in CamjyheU v. Bcaufoy (o), a plea hy an executor who 
 has proved a "Will, that " the testator was at the date of his 
 Will, and also at the time of his death, domiciled in France, 
 and that all the bequests of the personal estate affected to 
 be made by it are by the law of France null and void," was 
 held by Wood, V.-C, to be a good plea in bar to a suit by 
 a legatee under the Will for payment of his legacy and for 
 administration of the personal estate of the testator. 
 
 So in Lojf'us v. Maw (p), which there has already been 
 occasion to state, a revoking codicil, though it had been 
 admitted to probate, was not allowed under the circumstances 
 to have any revoking effect (g). 
 Cases where Under the law before the passing of the Court of Probate 
 
 fs'^nofcontlu- ^^^^ (1857), the jurisdiction of the Ecclesiastical Court was 
 si^e- confined to goods and chattels ; it had no power of admin- 
 
 istration over other property; and therefore its judgments 
 would bind those only Avho claim an interest in personal 
 property. Hence the probate was not conclusive evidence, 
 or even, it should seem, admissible evidence, that the instru- 
 ment was a Will, so as to pass copyhold or customary estate, 
 or so as to operate as a sufficient execution of a power to 
 charge land (r). 
 
 Again, it has already appeared (s), that to establish in 
 evidence the Will of a married woman made in execution of 
 a power, probate of it in the Court of Probate is first neces- 
 sary, in order to confirm judicially its testamentary nature : 
 But formerly the production of such a probate would not 
 alone have been sufficient to induce a Court of Equity to 
 act upon it ; for there were other special circumstances which 
 might have been required to give the instrument effect as a 
 
 (/i) See Concha v. Concha, 11 (q) Ante, p. 109, n. (i). 
 
 App. Cas. 541. Bradford v. (?•) Hume v. Rundell, Madd. & 
 
 Young, 29 C. D. 617. Geld. 331. 
 
 (o) Johns. 320. (s) Ante, pp. 50, 328. 
 
 (2)) 3 Giff. 592.
 
 Ch, I.] How far conclusive. 477 
 
 valid appointment, viz., attestation, sealing, &c., with which 
 circumstances the Temporal Courts did not trust the judg- 
 ment of the Spiritual Court. The witnesses, therefore, to 
 these facts, must have heen examined in chief to prove that 
 the Will was the wife's act, &c. ; and if an attestation were 
 not required hy the power, still her signature must have 
 been proved (t). But hv the 10th section of the Wills Stat, i Yict. 
 
 . . c. 26 s. 10. 
 
 Act all such additional varieties in the execution of testa- 
 mentary appointments have, in effect, been abolished. 
 
 Further, as the Court of Probate had no jurisdiction to 
 authenticate a Will, as far as it relates to real estate, it was 
 held that the probate was no evidence at all of the validity 
 or contents of a Will, as to such property (ii), not even 
 when the original Will was lost (.r), except indeed as a mere 
 copy. 
 
 So on an indictment for forging a Will, probate of that 
 Will unrepealed is not conclusive evidence of its validity so 
 as to be a bar to the prosecution (/;). 
 
 It must also be observed, that although the sentences of 
 the Court of Probate are conclusive evidence of the right 
 directly determined, yet they are not so of any collateral 
 matter, which may possibly be collected or inferred from the 
 sentence by argument (s). Therefore letters of administration 
 which have been granted to a person as administrator of the 
 effects of A. B. deceased, are not prima facie evidence of 
 A. B.'s death (rt). 
 
 (0 Rich V. Cockell, 9 Ves. 376. 389. 
 See also Morgan v. Annis, 3 De G. (;/) Rex v. Buttery, Russ. & Ry. 
 & Sm. 461, where Knight Bruce, C. C. R. 342. Rex v. Gibson, ibid. 
 V.-C., said he had no doubt the 343, n. («). It is said in Rex 
 Court of Chancery had jurisdic- v. Vincent, 1 Stra. 481, that the 
 tion to decide on the validity of probate was admitted as conchi- 
 the execution of a testamentary sive evidence on a similar prose- 
 power over personalty, with refer- cution : but that case must now l)e 
 ence to the donee's state of mind considered as overruled, 
 at the time of the alleged execu- (z) Blackhani's case, 1 Sulk, 
 tion. 290. 
 
 (m) Bull, N. P. 24o. (a) Thompson v. Donaldson, 3 
 
 (x) Doe V. Calvert, 2 Campl;. Esp. N. P. C. G3. Moons v. De
 
 478 
 
 Alterations in 
 tbe law as to 
 the effect of 
 probate as to 
 real estate. 
 
 Stat. 20 & 21 
 Vict. c. 71. 
 s. 61. Where a 
 Will affecting 
 real estate is 
 proved in 
 solemn form, 
 or is the sub- 
 ject of a con- 
 tentious pro- 
 ceeding, the 
 heir and 
 persons 
 interested in 
 the real estate 
 to be cited. 
 
 Oftlie Effect of Probate, &c. [Pt. i. Bk. vi. 
 
 Likewise, though no evidence was receivable to impeach 
 the probate or the letters of administration, being the 
 judicial acts of a Court having competent authority, yet it 
 might be proved that the Court which granted them had no 
 jurisdiction, and that therefore their proceedings were a 
 nulhty (/;). So it may be proved that the supposed testator 
 or intestate is alive : for in such case the Court of Probate 
 can have no jurisdiction, nor their sentence any effect (c). 
 And it may be shown that the seal attached to the supposed 
 probate has been forged; for that does not impeach the 
 judgment of the Court of Probate {d) : or that the letters 
 testamentary have been revoked ; for this is in affirmance of 
 its proceedings (e). 
 
 Very material alterations of some of the doctrines above 
 stated were introduced by the Court of Probate Act, 1857 
 (20 & 21 Vict. c. 77). 
 
 By sect. 61 of that statute, " Where proceedings are taken 
 " under this Act for proving a Will in solemn form, or for 
 " revoking a probate of a Will, on the ground of the in- 
 " validity thereof, or where in any other contentious cause or 
 " matter under this Act the validity of a Will is disputed, 
 " unless in the several cases aforesaid the Will affects only 
 " personal estate, the heir at law, devisees and other persons 
 " liavino- or pretending interest in the real estate affected by 
 " the Will shall, subject to the provisions of this Act, and 
 " to the rules and orders under this Act, be cited to see pro- 
 " ceedino-s, or otherwise summoned in like manner as the 
 " next of kin, or others having or pretending interest in the 
 
 Bernales, 1 Paiss. Clian. Cas. .301 
 (but see French v. French, Dick. 
 268, where Lord Hardwicke, under 
 particular cii'cunistances, admitted 
 the probate as proof of the testa- 
 tor's death). However, if the 
 plaintiff sues an executor or 
 administrator, and there is no 
 plea of ne unques executor or admin- 
 istrator, the plaintiffs right to sue 
 
 is admitted, and therefore no evi- 
 derice can be required of the death 
 of the testator or intestate : Lloyd 
 V. Fiulayson, 2 Esp. 564. 
 
 (/') Allen v. Dundas, 3 T. R. 
 130. 
 
 (c) Ibid. 
 
 (d) 3»Iarriot v. Marriot, 1 Stra. 
 671. 
 
 (e) Bull. N. P. 247.
 
 Ch. I.] How far conclusive. 479 
 
 " personal estate affected by a Will, should be cited or sum- 
 " moned and may be permitted to become parties, or inter- 
 *' vene for their respective interests in such real estate, subject 
 " to such rules and orders, and to the discretion of the 
 " Court "(/). 
 
 And by sect. 62, " Where probate of such Will is granted, Sect. 62. 
 " after such proof in solemn form, or where the validity of wm is proved 
 " the Will is otherwise declared by the decree or order in i" ^^^'^''■, 
 
 -J loim, or its 
 
 " such contentious cause or matter as aforesaid, the probate, validity other- 
 wise decided 
 " decree, or order respectively shall enure for the benefit of on, the decree 
 
 " all persons interested in the real estate affected by such to be binding 
 " Will, and the probate copy of such Will, or the letters of ?" the persons 
 
 ■"• '■ '' interested in 
 
 *' administration with such Will annexed, or a copy thereof, the real estate. 
 
 " respectively, stamped with the seal of her Majesty's Court 
 
 " of Probate, shall in all Courts, and in all suits and pro- 
 
 " ceedings affecting real estate of whatever tenure (save 
 
 " proceedings by way of appeal under this Act, or for the 
 
 " revocation of such probate or administration), be received 
 
 " as conclusive evidence of the validity and contents of such 
 
 " Will, in like manner as a probate is received in evidence in 
 
 (/) The affidavit on which an Will the Court refused to order 
 application to cite the persons the assignee of the heir at law of 
 interested in the real estate affected tlie testatrix to be cited as a person 
 by a Will in dispute is based, must lia%ang or pretending interest in 
 state not only that it disposes of the real estate affected by tlie Will : 
 real estate, but that it was exe- Jones v. Jones, 7 P. D. 66. The 
 cuted according to tlie law of provisions of the above section are 
 England and at a date since the not altered by the Judicature Acts 
 Wills Act came into operation : and the rules therein contained, 
 Campbell i\ Lucy, L. R. 2 therefore in order tliat a decree in 
 P. & D. 209. Where, in a suit a testamentary suit may bind the 
 commenced lay caveat, the party lieir at law or devisee of real 
 propounding a Will wishes to cite estate, a citation should be taken 
 the heir at law under this section, out against them under the pro- 
 before pleas have been filed con- visions of the above section, not- 
 testing the validity of the Will, he withstanding the directions of 
 must malie an affidavit that he R. S. C. 1883, Ord. xvi., rule 11 
 intends to proceed and prove the [R. S. C. 1875, Ord. xvi., rule 13]. 
 Will in solemn form : Peacock v. Kennaway v. Kennaway, 1 P. D, 
 Lowe, L. R., 1 P. & D. 311. In 148. 
 an action as to tlie validity of a
 
 480 
 
 Of the Effect of Probate, d'c. [Ft. i. Bk. vi. 
 
 Sect. 63. 
 Heir in cer- 
 tain ca.ses not 
 to 1)6 cited, 
 and where not 
 cited not to Le 
 affected by 
 probate. 
 
 " matters relating to tlie personal estate ; and where probate 
 " is refused or revoked on the ground of the invalidity of 
 " the "Will, or the invalidity of the Will is otherwise declared 
 " by decree or order under this Act, such decree or order 
 " shall enure for the benefit of the heir at law or other per- 
 " sons against whose interest in real estate such "Will might 
 " operate, and such Will shall not be received in evidence in 
 " any suit or proceedings in relation to real estate, save in 
 ** any proceeding by way of appeal from such decrees or 
 " orders " (g). 
 
 And by sect. G3, " Nothing herein contained shall make it 
 " necessary to cite the heir at law or other persons having or 
 " pretending interest in the real estate of a deceased person, 
 " unless it is shown to the Court and the Court is satisfied 
 " that the deceased was, at the time of his decease, seised of 
 " or entitled to or had power to appoint by Will some real 
 " estate beneficially, or in any case where the Will pro- 
 " pounded, or of which the validity is in question, would not 
 " in the opinion of the Court, though established as to pcr- 
 " sonalty, affect real estate ; but in every such case, and in 
 ** any other case in which the Court may, with reference to 
 " the circumstances of the property of the deceased or other- 
 " wise, think fit, the Court may proceed without citing the 
 " heir or other persons interested in the real estate: pro- 
 " vided, that the jirobate, decree or order of the Court shall 
 *' not in any case affect the heir or any person in respect 
 " of his interest in real estate, unless such heir or per- 
 " son has been cited or made party to the proceedings, or 
 " derives title under or through a person so cited or made 
 " party "(/O. 
 
 ((/) This clause, as likewise the 
 61st section, ante, p. 478, and sec- 
 tions 63 and 64, infra, are not appli- 
 cable to Wills executed before the 
 Wills Act, or which in whole or 
 in part have been executed not in 
 accordance with the requirements 
 of the Wills Act : Campbell r. 
 
 Lucy, 2L. R., P. & D. 209. 
 
 (h) See ante, p. 284, and the 
 Rule 78 (Contentious) there stated, 
 as to obtaining the requisite order 
 authorising the citation of the 
 heir, &c. See also the cases cited, 
 ibid., note (/), as to the constiuc- 
 tion of the rule. 
 
 !
 
 Ch. I.] How far conclusive. . 481 
 
 And by sect. 64, " In any action at law or suit in equity, Sect. 64. Pro- 
 
 ,, , ,, , . . , ., ,11 bate or office 
 
 where, according to the existing law, it would be necessary copy to be 
 " to produce and prove an original Will in order to establish ^IJ^ntufts^^ 
 " a devise or other testamentary disposition of or affecting concerning real 
 
 , estate, save 
 
 " real estate, it shall be lawful for the party intending to where the 
 
 " establish in proof such devise or other testamentary disposi- vTiii LVut in^ 
 
 *' tion, to give to the opposite party, ten days, at least, before i*^*'^^. 
 
 " the trial or other proceeding in which the said proof shall 
 
 " be intended to be adduced, notice that he intends at the 
 
 ** said trial or other proceding to give in evidence, as proof 
 
 ** of the devise or other testamentary disposition, the probate 
 
 ** of the said Will or the letters of administration with the 
 
 " Will annexed, or a copy thereof, stamped with any seal of 
 
 " the Court of Probate ; and in every such case such probate 
 
 " or letters of administration, or copy thereof respectively, 
 
 ** stamped as aforesaid, shall be sufficient evidence of such 
 
 " Will and of its validity and contents, notwithstanding 
 
 " the same may not have been proved in solemn form, or 
 
 *' have been otherwise declared valid in a contentious cause 
 
 *' or matter, as herein provided, unless the party receiving 
 
 " such notice shall, within four days after such receipt, give 
 
 " notice that he disputes the validity of such devise or other 
 
 " testamentary disposition " (i). 
 
 It will be observed, that unless the Will has been proved 
 in solemn form and its validity declared by decree or order, 
 so as to fall within the 62nd section, it will still be neces- 
 sary to produce the original Will, if notice of disputing the 
 
 (i) The true meaning of this the competence of the testator : in 
 
 provision appears to be that when other words the probate alone will 
 
 a notice has been given of the be sufficient evidence to go to the 
 
 intention to use tlie probate in jury of a devise of realty, but there 
 
 evidence, and the other side do not is nothing to prevent tlie other 
 
 give a counter notice within four side from showing by evidence that 
 
 days, the probate, without more, the Will is not valid, or that the 
 
 will be admissilile evidence of a testator was not competent : 
 
 Will and its contents as to realty, Barraclough v. Greenhough, L. E., 
 
 and will be prinid facie evidence 2 Q. B. G12 [reversing S. C, L. E., 
 
 of the validity of the Will and 2 Q. B. 1]. 
 
 W.E. — VOL. r. II
 
 482 
 
 Of the Effect of Prolate, &c. [Pt. i. Bk. vi. 
 
 Sect. 6;'). As to 
 costs of proof 
 of Will. 
 
 Bow far the 
 original Will 
 may he re- 
 ferred to, in 
 order to cor- 
 rect inaccura- 
 cies in the 
 X^robate. 
 
 validity be given under the 64th section. But such notice 
 will be given at the peril of having to pay the costs of the 
 production and proof of the Will (A). 
 
 For by sect. G5, it is enacted, that " In every case in 
 " which, in any such action or suit, the original Will shall 
 " be produced and proved, it shall be lawful for the Court 
 " or Judge before whom such evidence shall be given to 
 " direct by which of the parties the costs thereof shall be 
 " paid." 
 
 In L'Fit V. L'Batt (l), there was a French Will, the 
 original whereof was proved in French, and, under it in the 
 same probate, the Will was translated into English, but it 
 appeared to be falsely translated ; upon which it was ob- 
 jected, that the translation being part of the probate, and 
 allowed in the Spiritual Court, it must bind : and the appli- 
 cation must be to the Spiritual Court to correct the mis- 
 takes in the translation, which until then must be conclusive : 
 but, by the Master of the Bolls (m), nothing but the original 
 is part of the probate, neither hath the Spiritual Court 
 power to make any translation : and supposing the original 
 Will was in Latin (as was formerly very usual) and there 
 should happen to be a plain mistake in the translation of 
 the Latin into English, surely the Court might determine 
 according to what the translation ought to be : And so it 
 was done in that case. 
 
 In Havergal v. Harrison (ii), where the words in the pro- 
 bate were "brother and sister," and it was suggested that 
 in the original Will the words were " brothers and sister," 
 Lord Langdale, M.R., said, he was bound by the probate, 
 but if, on the production of the original Will, a doubt 
 
 (fc) The absence of notice may, 
 it would seem, be waived or the 
 (,'onrt may adjourn the case to 
 allow of the notice being given, 
 or to allow proof of the Will 
 2)er testes: Hilliard v. Eiffe, L. E., 
 7 H. L. 39-49. 
 
 l^^^: X,.^ ^ iLrf^ (0 1 P- Wms. 526. It seems 
 
 ^ ^^ (fqcjt) X <^ 2Z-^ 
 
 from Re CHlfe's Trusts, W. X. 
 1892, p. 66, that the Court of 
 Construction will look at the 
 foreign original even ■where an 
 English translation only is proved. 
 
 ()?i) Sir Josej^h Jekyll. 
 
 (?i) 7 Beav. 49.
 
 Ch. I.] How far conclusive. 483 
 
 existed as to the accuracy of the probate copy, the Court 
 would give an opportunity to the parties to apply to the 
 Ecclesiastical Court to set it right. Accordingly, in Oppen- 
 heim v. Henry (o), coram Wood, V.-C, where the probate 
 copy of a Will was in these words: "I release my sons 
 from all claims due to me by bonds on moneys advanced to 
 them by me," and his Honour was desired to look at the ori- 
 ginal Will, in order to ascertain whether the word written 
 " on" in the probate was not ^' or'" in the Will, the learned 
 Judge declined to do so, and said that looking at the Will 
 to ascertain the alleged inaccuracy of the probate was quite 
 different from the case of a question arising on the punc- 
 tuation of the Will, or on the introduction of a capital 
 letter, or other mark indicating where a sentence was in- 
 tended to begin, and which might affect its sense. — The law 
 seems not to be settled on the point last suggested by his 
 Honour, viz., whether, and in what cases, the Court will look 
 at the Will itself in order to derive aid in its construction 
 from the punctuation, or manner of writing, or from other 
 appearances on the face of it. In Compton v. Bloxham{p), 
 coram Knight Bruce, V.-C, his Honour relied, in construing 
 a Will, on the circumstance that certain words began an 
 entirely new sentence ; and he begged to have it observed, 
 that although it was a Will of personalty, he had sent for and 
 examined the original Will, and had been influenced by it in 
 his construction. Again, in Shea v. Boschetti (q), where a 
 facsimile probate of a Will, with certain passages of it struck 
 through, had been granted, Sir J. Komilly, M.K., expressed 
 his opinion that, whether the Court of Probate grants a 
 facsimile probate or not, the Court of Chancery is bound to 
 look at anything in the original Will itself which may aid 
 and assist it in coming to a correct conclusion as to the con- 
 struction to be put upon the contents of the Will. So in 
 Maiming v. Purcell (r), it appears that the Lords Justices 
 
 (o) 9 Hare, 802, note {!>) to (q) 18 Beav. 321. 
 
 Walker v. Tippin. (/) 7 De G. M. & G. 55. 
 
 {p) 2 Coll. 201. 
 
 I I 2
 
 484 Of the Effect of Probate , &c. [Pt. i. Bk. vi. 
 
 in construing a Will of personalty, ordered the original 
 AYill to be produced, and had regard to certain erasures 
 appearing therein, hut which had been omitted in the 
 probate, notwithstanding that counsel objected that the 
 probate copy could alone be looked at. And in the case of 
 Re Harrison (s), where a testatrix in making her Will used 
 a law stationer's form, which was partly in print, blanks being 
 left in it, which were to be filled up by the person who made 
 use of it, and after directing that her debts and funeral and 
 testamentary expenses should be paid by her executrix there- 
 inafter named gave all her property both real and personal 
 " unto to and for her own use and benefit absolutely, 
 
 ** and I nominate, constitute, and appoint my niece Catherine 
 " Hellard to be executrix of this my last Will and testament." 
 The Court of Appeal held that there was an effectual gift of 
 the residue to Catherine Hellard, and that for the purpose of 
 construing a Will the Court is entitled to look at the original 
 Will, as well as at the probate copy. In his judgment. Lord 
 Esher, M.E., says, "The main argument in this case is 
 " founded on there being a blank in the Will, and how can 
 " you tell that there is a blank without looking at the Will ? 
 " I know of no rule that for the purpose of construing a 
 *' Will you may not look at the original Will itself." In 
 this judgment Baggallay, L,J., concurred, who said, " I fully 
 " agree that, for many purposes, the first thing to be looked 
 " at is the probate copy of the Will. But when I look at the 
 " probate copy in this case, I find that there is a blank space 
 " in it. This is consistent either with an accidental omission 
 " to fill up the blank or with an intention not to fill it 
 " up. Then it becomes material to look at the original 
 " Will." But in Gann v. Gre/jory (t), cora?Ji Lord Cranworth, 
 C, where the Ecclesiastical Court had granted a facsimile 
 probate of a Will, made after the Wills Act came into 
 operation, with cross lines drawn in ink over the bequests 
 of certain legacies (the decree in the Prerogative Court 
 
 (s) 30 C. D. 390. (0 3 De G. M. & G. 777.
 
 Ch. I.] How far conclusive. 485 
 
 having been pronounced for the Will as contained in the 
 document, " with the several alterations, interlineations, and 
 erasures, appearing therein ") ; and it was suggested to his 
 Lordship, that if the original Will were looked at, it would be 
 seen that the pencil alterations made in the legacies contained 
 under the cross lines must have been made after those 
 lines were drawn, and it might thence be inferred that the 
 testator meant the legacies to remain part of the Will ; his 
 Lordship said that he was not of those who thought it was 
 competent for the Court of Chancery on every occasion to 
 look at the original Will, though he was aware Lord Eldon 
 did it in some instances, but in each there were particular 
 circumstances : And his Lordship proceeded to express his 
 opinion, that as probate had been granted of the Will, with 
 the alterations in it, it must be taken as conclusively settled 
 by the Ecclesiastical Court that the Will was at its execution 
 in its present state ; that is, that the testator executed the 
 instrument with the lines drawn over it, meaning thereby, 
 that the legacies were not to stand part of the Will. Again, 
 in Taylor v. Pdcliardson (ii), coram Kindersley, V.-C, where 
 the probate had been delivered out with blanks in the course 
 of the Will, and it was suggested that it might be construed 
 as if the words ran continuously, his Honour observed, that 
 the Ecclesiastical Court said that the Will was an instrument 
 in such and such words, and in certain places, such and such 
 blanks, and that the Court of Chancery was bound to look at 
 them as part of the Will. 
 
 In the earlier editions of this work Sir Edward Vaughan 
 Williams wrote as follows : — " On the whole, it may, perhaps, 
 " be doubted whether, in strictness, the Court of Chancery 
 " has not gone beyond its legitimate means for construing 
 " Wills of personalty even in the instances above mentioned, 
 " where it has sought aid from appearances in the Will itself 
 " not to be found in the probate, and whether the more proper 
 " course is not to apply to the Probate Court for a corrected 
 
 (u) Drewr. IG.
 
 486 
 
 Of the Effect ofProhate, dc, [Pt. i. Bk. Yi. 
 
 'facsimile probate, if it be desired to rely on stops or capital 
 ' letters, or any marks which, in truth, are apparent in the 
 ' AVill, though not in the probate. For until the Court of 
 ' Probate has sanctioned them as legal parts of the "Will, 
 ' noil constat, that they have not been introduced by a stran- 
 
 * ger, or by the testator himself after the Will was executed, 
 
 * or otherwise, so as not properly to form a part of it : And 
 ' this can only be decided in the Ecclesiastical Court, which 
 
 * is bound to exclude from its probate, whether a facsimile 
 ' probate or not, all such appearances on the face of the 
 
 * Will as do not legitimately belong to it as a testamentary 
 ' instrument." But the present practice would seem to be 
 
 to look at the original Will {x) . 
 
 (.r) See Be Harrison, 30 C. D. 389.
 
 487 
 
 CHAPTER THE SECOND. 
 
 OF THE REVOCATION OF PROBATE AND LETTERS OF 
 ADMINISTRATION. 
 
 By the Court of Probate Act, 21 & 22 Vict. c. 77, s. 75, Court of Pro- 
 
 " After any grant of administration, no person shall have After grant of 
 
 power to sue or prosecute any suit or otherwise act (a) as no'^ne'to^ have 
 
 executor of the deceased, as to the personal estate comprised power to sue, 
 
 &c., as ex- 
 
 in or affected by such grant of administration, until such ecutor until 
 administration shall have been recalled or revoked." recafTeTor^ 
 
 A probate or a grant of letters of administration may be revoked. 
 revoked in two ways : 1. On a suit by citation. 2. On an 
 appeal to a higher tribunal to reverse the sentence by which 
 they are granted. 
 
 A revocation by citation usually is, when the executor or Revocation 
 administrator is cited before the Judge by whom the pro- "^°° '^^ ^ '°°' 
 bate or letters of administration were originally granted, to 
 bring in the same, and to show cause why they should not 
 be revoked (/>). 
 
 (a) When administration has have now equal and concurrent 
 been granted, and another person jurisdiction in matters testa- 
 intermeddles with the goods, this mentary, still the question does 
 shall not make him executor de not appear to be of great practical 
 son tort, by construction of law. importance, inasmuch as in the 
 Ante, pp. 211, 212. event of a person commencing 
 
 (b) It was said in the judgment proceedings for revocation in any 
 both of Sir James Hannen and Division but the Probate Division, 
 Cotton, L.J., in the case of Priest- such proceedings would, upon 
 man v. Thomas, 9 P. D. 70, 210, application to the Judge, be trans- 
 that the Chancery Division has ferred into the Probate Division, 
 no jurisdiction to revoke a Will, as the Division which can more 
 but that the exclusive jurisdiction conveniently and appropriately 
 so to do is vested in the Probate deal with such matters. See 
 Division. Although, it is sub- Pinney v. Hunt, 6 C. D. 98, and 
 mitted, this proposition is too Bradford v. Young, 26 C. D. 656. 
 wide, inasmuch as all Divisions
 
 488 
 
 Revocation on 
 appeal : 
 
 Manner and 
 foria of ap- 
 peals, Stat. 24 
 H. 8. 
 
 Stat. 25 H. 8, 
 c. 19. Appeal 
 to the dele- 
 gates. 
 
 Of the Revocation of Prolate, &c. [Pt. i. Bk. vi. 
 
 An appeal under the old law was to be effected by demand- 
 ing letters missive, called Apostoli, from the Judge a quo, to 
 the Judge ad quern (c). 
 
 The manner and form of appeals were regulated by several 
 statutes. By stat. 24 H. YIII. c. 12, s. 5 (repealed by 1 & 2 
 Ph. & M. c. 8, and revived by stat. 1 Eliz. c. 1), the appeal, 
 where the cause was commenced before the Archdeacon, 
 lay to the Bishop ; and by sect. 6, where the cause was com- 
 menced before the Bishop, to the Archbishop of the pro- 
 vince ; — and by sect. 7, where the cause was commenced 
 before the Archdeacon of the Archbishop to the Court of 
 Arches (d), and from the Court of Arches to the Archbishop. 
 By statute 25 Hen. VIII. c. 19, an appeal was given from 
 the Archbishop to certain commissioners. 
 
 These commissioners were commonly called Delegates 
 (according to the language of the civil and canon law), on 
 account of the special commission or delegation they received 
 from the King (<?). 
 
 (c) Gibs. Cod. 1035. 
 
 (d) Com. Dig. tit. Prerogative 
 (D. 13), citing Heatli v. Atworth, 
 2 Dyer, 240, b. The person who 
 administers justice in the Court of 
 Arches, is the Official Principal of 
 the Archbishop : who was called 
 officialis dc arcubus, and the Court 
 itself curia de arcubus, from its 
 being anciently held in the Eccle- 
 sia B. MaricB de Arcubus, or Bow- 
 church, by reason of the Arch- 
 bishop's having Ordinary juris- 
 diction in that place, as the chief 
 of his Peculiars in London, and 
 being the church where the Dean 
 of those Peculiars (commonly 
 called the Dean of the Arches) 
 held his Court. And because these 
 two Courts were held in the same 
 place, and the Dean of the Arches 
 was usually substitiited in the 
 absence of the Official while the 
 
 offices remained in two persons, 
 and the offices themselves have in 
 many instances been united in 
 one and the same person, as they 
 now remain ; by these means a 
 wrong notion hath obtained, that 
 it is the Dean of the Arches, 
 as such, who hath jurisdiction 
 throughout the province of Can- 
 bury : whereas the jurisdiction 
 of that office is limited to the 
 thirteen Peculiars of the Arch- 
 bishop in the city of London ; and 
 the jurisdiction throughout the 
 province, for recei\dng of appeals, 
 from the sentences of inferior Ec- 
 clesiastical Courts and the like, 
 lielonged to him only as Official 
 Principal : Gibs. Cod. 1004. 
 
 (c) The king might appoint 
 whom he pleased as Delegates : 
 Com. Dig. Prerogative (D. 14). 
 And in the exercise of its discre-
 
 Ch. il] 
 
 On Ajypeal. 
 
 489 
 
 No appeal lay from a sentence in a Court of Delegates ; Commission 
 
 ot rGVicw 
 
 not even to the Lords in Parliament (/). But on a petition 
 to the King in council, a Commission of Review might be 
 granted under the great seal, appointing new Judges, or 
 adding more to the former Judges, to revise, review, and 
 rehear the cause (g) : for the King was not restrained by the 
 statutes 24 & 25 Hen. VIII,, and the Pope, as Supreme 
 head, whose authority is now annexed to the Crown by 
 
 tion the Court of Chancery would 
 either grant a full commission of 
 Delegates, i.e. to Lords Spiritual 
 and Temporal, Judges of the Com- 
 mon Law and civilians, or one to 
 judges and civilians only. When 
 the jurisdiction of Lishops was in 
 controversy, or a question depend- 
 ing that concerned the Canon and 
 Ecclesiastical law, a full commis- 
 sion was granted : Where it was 
 altogether a matter of law, as a 
 question on a Will, a commission 
 issued to judges and civilians only : 
 Ex parte Hellier, 3 Atk. 798. It' 
 any of the judges were in the com- 
 mission, the place of assembly was 
 usually appointed by one of them 
 at Serjeants' Inn : Com. Dig. Pre- 
 rogative (D. 14). If the Delegates 
 were equally divided in opinion, a 
 commission of adjuncts might issue 
 to add others to the Judges De- 
 legate : Emerton v. Emerton, T. 
 Raym. 475. 4 Burr. 2254. The 
 proceedings of the Delegates were 
 according to the rules of the civil 
 and Ecclesiastical law : Vanbrough 
 V. Cock, 1 Chan. Cas. 201, by tlie 
 Lord Keeper. And on that ac- 
 count it had been particularly ad- 
 judged, that a suit there did not 
 abate by the death of the parties ; 
 this being the course of the Eccle- 
 siastical Courts : 1 Burn. Ecc. L. 
 
 61, 62. Com. Dig. Prerogative 
 (D. 14). The Delegates could not 
 fine or imprison : 4 Inst. 334 : and 
 whether they had power to ex- 
 communicate has been doubted : 
 Stevenson v. Wood, 2 Bulst. 4 ; 
 though it seems to have been exer- 
 cised in practice : 2 Roll. Abr. 223, 
 Prerogative (G.), pi. 3. Wood's 
 Inst. 505. The Court of Dele- 
 gates, it should seem, had no ori- 
 ginal jurisdiction, but was only to 
 review, and to reverse or affirm, 
 the sentence appealed from. There- 
 fore, the better opinion apjiears to 
 be, that they could not grant letters 
 of administration or probate : Ste- 
 venson V. Wood, 2 Bulst. 4. Reeve 
 V. Denny, Latch. 85. Contra, 2 
 Roll. Abr. 223, Prerogative (G.), 
 pi. 4 : and see Com. Dig. Admin- 
 istrator (B. 2). It is said in 
 Toller, p. 75, that where probate 
 granted by the special court is 
 affirmed on an appeal to the 
 Arches or Delegates, the usage is 
 to send the caixse back : But when 
 the first sentence is reversed, the 
 Court below shall be ousted of its 
 jurisdiction, and the Court which 
 reverses it shall grant probate de 
 novo. 
 
 (/) Saul V. Wilson, 2 Vern. 118. 
 (cj) 1 Oughton, tit. 302, sect. 2 
 note (c), pi. 5.
 
 490 
 
 Of the Revocation of Prohrtte, S\ [Pt. i. Bk. vi. 
 
 Stat. 3 & 1 
 W. 4, c. 92. 
 Appeal to 
 Judicial 
 Committee. 
 
 Court of Pro- 
 bate Act, s. 30. 
 Appeal from 
 the Court of 
 Probate to the 
 House of 
 Lords. 
 
 By Judicature 
 Acts appeal 
 from Probate 
 Division to 
 Court of 
 Appeal. 
 
 Second grant 
 of administra- 
 tion or pro- 
 bate without 
 revoking the 
 first. 
 
 stat. 26 Hen. VIII. c. 1, and 1 Eliz. c. 1, had power to 
 do it (//). 
 
 But by Stat. 3 & 4 Will. IV. c. 92, the statute of 25 
 Hen. VIII. was repealed, and the power of the Court of 
 Delegates transferred to the Judicial Committee of the Privy 
 Council. 
 
 And by the 39th section of the Court of Probate Act, 1857 
 (20 & 21 Vict. c. 77), the appellate jurisdiction in matters 
 and causes testamentary was transferred from the Privy 
 Council to the House of Lords. 
 
 But now that by the Judicature Acts the jurisdiction of 
 the Court of Probate has been transferred to the Probate 
 Division of the High Court of Justice [see ante, p. 239], the 
 appeal from that Division is to the Court of Appeal as con- 
 stituted by those Acts (i). 
 
 The time within which an appeal must be brought is 
 twenty-one days from an interlocutory order, and a year from 
 a final judgment, unless the time be enlarged by the Court of 
 Appeal (k). 
 
 The notice of appeal must, in the case of a judgment final 
 or interlocutory, be a fourteen days' notice, and in the case of 
 an interlocutory order, a four days' notice (I). 
 
 Some authorities maintain that if the Ordinary committed 
 administration to the wrong party, and then committed it to 
 the right, the second grant was a repeal of the first, without 
 any sentence of revocation (m) ; but in other cases, it has 
 been held, that the first is not avoided except by judicial 
 
 (h) 4 Inst. 341. Gervis v. Hal- 
 lewell, Cro. Eliz. 571. 
 
 (i) See Judicature Act, 1873, 
 s. 19. When a cause in the Pro- 
 bate Division has been heard before 
 a judge without a jury, the e'V'i- 
 dence being given viva voce, the 
 parties may, if they please, apply 
 for a re-hearing under rule 60 of 
 the Probate Orders, July, 1862, 
 or they may appeal from the de- 
 
 cision of the judge, on the facts 
 as well as the law, to the Court 
 of Appeal. Sugden v. Lord St. 
 Leonards, 1 P. D. 154. 
 
 (k) See E. S. C. 1883, Ord. 58, 
 r. 15. 
 
 (0 See R. S. C. 1883, Ord. 58, 
 r. 3. 
 
 (m) Newman v. Beaumond, 
 Owen, 50. 4 Bum. E. L. 293. 
 Godolph. Pt. 2, c. 31, s. 4.
 
 Ch. II.] Of the gronnch of Revocation. 491 
 
 sentence {n). And the practice was, to call in and revoke 
 the first administration before the second was granted (o). 
 So, before revocation of a probate, the Court will not grant a 
 new one {p). 
 
 It remains to consider what are sufficient grounds for the What are suffi- 
 revocation of a probate or letters of administration. for the revo- 
 
 lt has already appeared, that where an executor obtains re*e°rL1'"- 
 probate of a Will in common form, he may be afterwards of probates : 
 cited by a next of kin, to prove it j:»er testes, or in solemn 
 form (q). And upon this citation, if the executor does 
 not sufficiently prove the Will, the probate will be revoked. 
 
 If the Will has been proved in solemn form, either by the 
 executor himself in the first instance, or upon citation as 
 above stated, and the next of kin have been cited to see 
 proceedings, they cannot afterwards, by a fresh citation, 
 again put the executor on proof of the Will (r). But if 
 fraud can be shown, or if a later distinct Will be set up, then 
 the parties ha\dng an interest under such later Will may 
 again cite the executor, who has succeeded in proving in 
 solemn form, and obtain a revocation of the probate (s). 
 
 It was held in Nieol v. Askew (t), that probate of a testa- 
 mentary paper, in the nature of a codicil, having been 
 granted by consent in common form, could not afterwards be 
 revoked on the allegation that the conditions on which such 
 consent was given had not been complied with, there being 
 no proof of fraud or circumvention practised either upon the 
 Court or the parties. 
 
 (n) Pratt r. Stocke, Cro. Eliz. to the lawful widow, notwithstand- 
 
 315. Toller, 126. ing the prior administration was 
 
 (o) Toller, 126. But see In the outstanding, 
 
 goods of Langley, 2 Robert, 407, (i^) Toller, 75. Rains v. Com- 
 
 where an administration granted missary of Canterbury, 7 Mod. 146, 
 
 to a woman, falsely swearing her- 147. 
 
 self to be the wife of the deceased, {q) Ante, p. 275. 
 
 ■was, after the necessary decrees (r) Ante, pp. 275, et acq. 
 
 had been taken out, and attempts (s) Wentw. Off. Ex. Ill, 112, 
 
 made to serve her, but without 14th edition, 
 
 success, declared to be null and (0 2 Moore, P. C. C. 88. 
 void and administration decreed
 
 492 
 
 Of the Revocation of Prolate, do. [Pt. i. Bk. vi. 
 
 of letters of 
 administra- 
 tion : 
 
 when granted 
 to next of kin 
 
 next of kin 
 7ion compos : 
 or beyond sea : 
 
 With respect to the question as to what shall be a just 
 ground for the revocation of letters of administration : it has 
 been said, that at common law the Ordinary might repeal 
 an administration at his pleasure (») : but now since the 
 statute 21 lien. YIII. c. 5, when it is granted, it cannot be 
 repealed, unless for a just cause {v). So where administra- 
 tion is granted without the obligation of the statute, as 
 administration durante minore cetatc, it was held that when 
 the Ordinary had once exercised his power by granting the 
 administration, he should not repeal it without due cause (zr)- 
 Again, though the Court has power to revoke a limited 
 administration, it is very unwilling to do so, unless there was 
 some misrepresentation in the first instance in obtaining the 
 grant (x). 
 
 It was at one time doubted whether the Ordinary could 
 revoke or repeal administration on any ground, but it is now 
 agreed that the administration, though granted to a next of 
 kin, may be repealed by the Court, not arbitrarily, yet where 
 there shall be just cause for so doing ; of which the Temporal 
 Courts are to judge (t/). 
 
 Therefore the administration may be revoked where it 
 was granted in an irregular manner, as where a next of kin 
 comes too hastily to take out the administration within the 
 fourteen days (s) : or where it has been granted 7ion vocatis 
 jure vocandis, without citing the necessary parties (a) : in 
 which cases, the administration, though not void, is void- 
 able. 
 
 Again, the administration may be revoked, if a next of 
 kin, to whom it has been committed, becomes non compos. 
 
 (u) Brown r. Wood, Aleyn, 36. 
 Godolph. Pt. 2, c. 31, s. 4. 
 
 {v) Treat, on Eq, Bk. 4, Pt. 2, 
 c. 1, s. 5. 
 
 (iv) Grandison v. Dover, Skinn. 
 155. 
 
 (x) Lopes V. Hartley, 7 Notes of 
 Gas, Supplement, p. xxxi. 
 
 (?/) Burn, E. L. 293. 3 Bac. 
 Abr, 50 tit. Executors (E. 3) 12. 
 .See Koster v. Sapte, 1 Curt. 691. 
 
 (;.) 3 Bac. Abr. ithi supra. 
 
 (a) Com. Dig. Administrator 
 (B. 8). Eavenscroft r. Ravens- 
 croft, 1 Lev. 305.
 
 Ch. II.] Of the grounds of Revocation. 493 
 
 or otherwise incapable (6), or, it has been said, if he goes 
 beyond sea (c). 
 
 A fortiori, the Court may repeal its grant of administration, when granted 
 when made to other than the next of kin, as if it be granted next of kin : 
 to a next of kin, together with one not of kin, as to a sister 
 and her husband {d) : or to one of kin, but not next of kin (<?) : 
 or to a creditor before the renunciation of the next of kin (/). 
 In these cases, the administration is not void, but voidable 
 only C^)- 
 
 In the case of In the goods of Ferrier (h), the tenant for life ^^''^^^ granted 
 
 cum testamento 
 
 of certain property having assigned over his interest to the annexo .- 
 remainderman, an administration with the Will annexed, 
 which had been granted to the tenant for life, limited to that 
 interest, was revoked, and a new administration, limited to 
 that property, decreed to the remainderman, then possessed 
 of the sole interest therein. 
 
 In another case a creditor, having obtained an administra- 
 tion cwn testamento annexo, and completely settled his own 
 debt, went away : Sir John Nicholl said, ho saw no other 
 remedy, than that the administration should be revoked, and 
 the executor should retract his renunciation, and be allowed 
 to take probate of the Will ; otherwise great loss might 
 accrue, and injustice be done ; and the learned judge observed, 
 that the Court has greater authority over an administrator 
 with the Will annexed, granted to a creditor, than over an 
 administration under the statute (i). 
 
 (6) Agreed by all the justices in trator (B. 6). 
 
 Offley V. Best, 1 Sid. 373. Bac. {g) Ibid. 
 
 Ahr. ubi supra. 4 Burn. E. L. 292. (h) 1 Hagg. 241. See In the 
 
 Com. Dig. Administrator (B. 8). goods of Reid, 11 P. D. 70. 
 
 See ante, pp. 441, 442. (^) In the goods of Jenkins, 3 
 
 (c) Bac. Abr. ubi supra. Phillim. 33. And where a grant 
 
 (d) Brown v. Wood, Aleyn, 36. of administration of the estate of 
 Com. Dig. Administrator (B. 8). an intestate was made to a creditor 
 Ante, p. 441. who, after his debt had been fully 
 
 (e) Blackborough v. Davis, 1 satisfied, absconded, and could not 
 Salk. 38. Anon. Hetlcy, 48. be found, the Court revoked the 
 
 (/) Ibid. Com. Dig. Adminis- grant to the creditor, without
 
 49-1 Of the Revocation of Probate, &c. [Pt. i. Bk. vi. 
 
 Administration cum testamento annexo, whether granted 
 to a next of kin, or one not next of kin, is voidable, and may 
 be repealed, if there be a residuary legatee {k). 
 
 Although it has always been the law that upon an executor's 
 renunciation, whereupon administration was committed to 
 another, the executor could not go back again and assume 
 the executorship, yet questions used to arise as to the revo- 
 cation of administration granted in the case of an executor 
 who would not renounce, or take any step. Such cases, how- 
 ever, cannot now arise since the passing of statutes 20 & 21 
 Vict. c. 77, s. 79, and 21 & 22 Vict. c. 95, s. 16, except 
 perhaps in a case where the Court grants administration 
 without knowing that the executor has acted and the Court 
 thinks fit to compel such executor to act (L). 
 
 In the case of Trimlestown v. Trimlestown (m), an ad- 
 ministration with a Will annexed, obtained after a caveat 
 entered had expired, but without notice to the adverse party, 
 and while the Will was in suit in Ireland — the forum domicilii 
 — was revoked, as surreptitiously obtained, and the party con- 
 demned in costs of a petition in support of it. 
 re-grant ad If administration be repealed quia improvide, that is, where 
 
 a revocation OH a false Suggestion in respect to the time of the intestate's 
 Vide Tc" "' death, it issued before the expiration of a fortnight from that 
 event, or where the Court in committing it took security in- 
 adequate to the value of the property, it shall be granted to 
 the same person (w). 
 
 The following grounds for revocation have also been held 
 to be sufficient (?t»). 
 
 citing liim, and made a new grant {m) 3 Hagg. 243. 
 to the sole next of kin of the de- (?i) Toller, 125. Com. Dig. Ad- 
 ceased. In the goods of Bradshaw, ministrator (B. 8). Offley v. Best, 
 13 P. D. 18. These cases have been 1 Sid. 293. 
 
 followed in the late case of In the {nn) See Tristram & Coote's 
 
 goods of Covell, 15 P. D. 8. Probate Practice, 10th ed., pp. 
 
 (fc) Godolph. Pt. 2, c. 31, s. 3. 198-204, where the following 
 
 Ante, p. 400. instances will be found set forth. 
 
 (0 See ante, pp. 226, 227.
 
 Ch. II.] Of the grounds of Revocation. 495 
 
 Where a woman claiming to be the widow of the intestate, Other j^rounds 
 but who had not been legally married, obtained administra- 
 tion to the deceased as her husband the grant was re- 
 voked (o) : and so in a case where persons who claimed to be 
 next of kin to the intestate but who were in reality only 
 illegitimate relatives had obtained administration {oo). The 
 fact that the person of whose estate administration has 
 been granted is still living is a sufficient ground for revo- 
 cation. 
 
 Where the Court of Chancery after grant made has difiered 
 from the Prerogative Court in its construction of the 
 Will {p). As in a case where the Prerogative Court had 
 granted letters of administration to the next of kin cum 
 testamento annexo, and refused it to the residuary legatee, on 
 the ground that the residuary bequest was void, and the 
 Court of Chancery subsequently held that the bequest was 
 good, and that the residuary legatee took a beneficial interest 
 under it. 
 
 Where administration has been granted to the elected 
 guardian of the intestate's children, there being a testa- 
 mentary guardian who had not renounced {q). 
 
 Where one of two or more administrators becomes incapable 
 and of unsound mind {r), or it has been said if he goes beyond 
 sea. 
 
 A creditor having been paid his debt was desirous io^i«^f?e 
 of retiring from the administration of the estate (s). 
 
 If administration (with a Will only annexed) has been 
 granted and a codicil afterwards found a separate grant can- 
 not be made of the latter, as in the case of a probate, but the 
 administration with the Will annexed must be revoked and a 
 
 (o) In the goods of Moore, 3 {q) In the goods of Morris, 
 
 Not. of Cas. GOl. 2 Sw. & Tr. 3G0. 
 
 ipo) In the goods of Bergman, (r) In the goods of Newton, 
 
 2 Not. of Cas. 22. 3 Curt. 428. 
 
 ( p) Warren v. Kelson, 28 L. J., (s) In the goods of Hoare, 2 Sw, 
 
 P. & M. 122. 1 Sw. & Tr. 29U. & Tr. 3G1, n.
 
 496 
 
 Oftlic Revocation of Probate , &c. [Pt. i. Bk. vi. 
 
 Caveat. 
 
 What is not 
 a ground for 
 revocation. 
 
 new administration taken with both the Will and codicil 
 annexed (t). 
 
 The Court requires the revoked grant to be produced and 
 delivered to the Registrar at the time of its revocation, so 
 that it may be cancelled. If, however, owing to the grantee 
 having left the country, it is impossible to compel the produc- 
 tion of the grant, the Court will revoke it though it cannot 
 cancel it (?/). 
 
 It is usual, where there is a question about a "Will, or 
 when the right of administration comes in dispute, to enter 
 what is called a caveat (which is a caution entered in the 
 Court of Probate to stop probates, administrations, faculties, 
 and such like from being granted without the knowledge of 
 the party that enters) {x). A caveat remains in force for six 
 months, and may be renewed {a). 
 
 If administration be granted to a younger brother, the 
 elder cannot have it repealed, unless it has been granted by 
 surprise (b). So if administration be granted to a creditor, 
 and afterwards a creditor to a larger amount appear, it shall 
 not be revoked for him (c). So also administration de bonis 
 non, with the Will annexed, granted to one where two had 
 equal right, is good and shall not be revoked (d). Nor can 
 the Court revoke the grant on account of abuse ; for it 
 ought to take sufficient caution in the first instance to 
 prevent maladministration [e) Nor can the Court revoke it 
 
 {t) Tristram & Coote's Pro- 
 bate Practice, 10th eel, p. 202. 
 
 (u) Baker v. Eussell, 1 Cas. 
 temp. Lee, 167. 
 
 {:,:) 3 Burn, E. L. 244, Philli- 
 more's edition. 
 
 (a) See P. R. 1862, Non-conten- 
 tious, Rule 60. The practice as to 
 caveats is now regulated by the 
 Stat. 20 & 21 Vict. c. 77, s. 53, 
 and the rules of 1862, P. R. 
 Nos. 59, 60, 61, 62, 63, 64, 65, 66, 
 67. It is not thought requisite 
 to do more than refer to tliis 
 
 enactment and these rules, as the 
 subject is not, it is considered, 
 properly within the scope of this 
 Treatise. 
 
 (A) Ayliff V. Ayliff, 2 Keb. 812. 
 So where a niece obtained admin- 
 istration, a nephew could not get 
 it repealed : Hill v. Bird, Sty. 
 102. Ante, p. 364. 
 
 (r) Dubois r. Trant, 12 Mod. 438. 
 
 {d) Taylor v. Shore, T. Jones, 
 161. 
 
 (0 Thomas r. Butler, 1 Vent. 
 219, by Hale.
 
 Ch. II.] Of the grounds of Revocation. 497 
 
 on account of the administrator's omission to bring an inven- 
 tory and account (/). 
 
 And if an administration has been properly granted, it 
 cannot be revoked, even on the application of the adminis- 
 trator himself, and although he has not intermeddled with 
 the effects ; at all events, unless some strong ground for the 
 revocation be shown. Therefore, where a party entitled in 
 distribution to an intestate's effects, took out administration 
 under a belief that she and her brother were the only next 
 of kin, but, finding there were other parties equally entitled, 
 and that the estate must be administered by the Court of 
 Chancery, and not having intermeddled with the effects, she 
 applied for a revocation of her grant and a new one to one 
 of the other parties who was willing to take it, the rest con- 
 senting ; the Court refused the application, on the ground 
 that an administration, properly granted, could not be revoked 
 on a mere suggestion that it would be for the benefit of the 
 estate (//). Administration with the Will annexed was granted 
 to a woman who intermeddled with the estate, and subse- 
 quently married. Her husband deserted her, and could not be 
 found. Upon an application for a revocation of the grant, and 
 a fresh grant to another person, it was held by the Court of 
 Appeal that where there has been a general grant of adminis- 
 tration, and the administratrix has intermeddled with the 
 general estate, the grant cannot be revoked (A). 
 
 As to revoking a grant limited to a particular property on 
 the application of the administrator, see In the goods of 
 Ferrier, ante, p. 493. 
 
 The Court cannot revoke at the application of a creditor, 
 whatever may be the merits of the case, because such creditor 
 cannot demand a grant to be made to himself of immediate 
 right (?■). 
 
 Nor will the Court revoke a grant limited to attending pro- 
 
 (/) Hill !;.Biixl, Sty. 102. P. D. 70. 
 
 (g) In the goods of Healop, 1 (i) In the goods of Borginaii, 
 
 Eobeit. 457. 2 Notes of Cases, 23. 
 
 (h) In the goods of Reid, 11 
 W.E. — VOL. 1. K K
 
 •198 Of the Revocation of Prolate, &C. [Ft. i. Bk. vi. 
 
 ceedings in the Court of Chancery before the suit is ended in 
 order to enable the next of kin to take a general grant {h). 
 
 How far a 
 party who has 
 once pro- 
 pounded a 
 AYill and 
 withdrawn is 
 barred. 
 
 Citation by 
 next of kin, 
 contesting a 
 "Will, of all 
 persons inter- 
 ested ' ' to see 
 proceedings." 
 
 In the case of Troicer v. Cox (l), the attorneys of an execu- 
 trix had withdrawn from the suit, after propounding an alleged 
 Will, and suffered a next of kin to take administration ; and it 
 was held, under the luirticular circumstances of the transaction, 
 that the executrix was not barred from calling upon the next 
 of kin to bring in the administration, and re-propounding the 
 alleged Will. But in ordinary cases, where the parties, 
 being present, declare they proceed no further, or duly autho- 
 rize a practitioner to take that step for them, the Court, as far 
 as it legally can, will hold them bound {ni). 
 
 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, there- 
 fore, to cite the persons interested under it, to propound it 
 in solemn form, or show cause why the probate in common 
 form should not be revoked. The executor of an executor 
 is in the same position in this respect as the original 
 executor {n). 
 
 AVhere a next of kin is cited by an executor to see a Will 
 propounded, and contends for an intestacy, he may take out 
 a decree, citing all persons interested under the Will, " to 
 see proceedings;" for although it is true, that the act of 
 the executor, being the appointee of the deceased, would, to 
 a certain extent, bind all persons interested under the Will (o), 
 yet some party might, perhaps, at a future time, allege col- 
 lusion {})). The decree in such a case should be framed in 
 the largest terms " against all persons in general," and if any 
 of the legatees happen to be dead, care should be taken to cite 
 their representatives {q). 
 
 (k) In the goods of Brown, 
 L. R., 2 P. & D. 455. 
 
 (i) 1 Add. 19. 
 
 (m) 1 Add. 225. 
 
 [n) In the goods of ChaniLer- 
 lain, L. E., 1 P. & D. 316. 
 
 (o) See Wood v. Medley, 1 
 Ilagg. 657, 658, 667, 668. 
 
 {•p) Colvin V. Eraser, 1 Hagg. 
 107. Ante, p. 280. 
 
 {([) Ik, 107, 109. See ante, p. 
 278.
 
 Cli. II.] Of the grounds of Revocation. 
 
 The parties thus cited need not appear at all ; and in 
 ordinary cases, if they intervene, when an executor, the 
 person entrusted hy the executor to see his Will executed, is 
 before the Court, they will not be allowed their costs out of 
 the estate (r). 
 
 Where two parties appear before any administration has 
 been granted, both are to propound their interests, and pro- 
 ceed _2Jfl?'iiwss«. (s). But where an administration has been 
 regularly obtained, the person in possession of it is not bound 
 to propound his interest, till the party calling it in question 
 has established his own {t). 
 
 499 
 
 Party in pos- 
 session of ad- 
 ministration 
 not bound to 
 propound his 
 interest till tlie 
 party calling 
 it in question 
 has established 
 his own. 
 
 When probate has been granted of the Will of an officer Revocation of 
 in the army, on the affidavit of his brother and executor, Wiii of one 
 that he had received intelligence that the testator had been 'osg/toYe 
 killed in battle, which he believed to be true, but which was ^^ad. 
 in fact unfounded, the proctor for the executor brought and 
 left in the registry the probate, and the Court, on motion of 
 counsel, by an interlocutory decree, revoked the same, and 
 declared it to be null and void to all intents and purposes : 
 At the same time the supposed deceased appeared personally, 
 and the judge, at his petition, decreed the original Will, 
 together with the probate first cancelled, to be delivered out of 
 the registry to him {u). 
 
 (r) Colvin v. Fraser, 2 Hagg. lim. 155. Hibben v. Caleraberg, 
 
 368. 1 Phillim. 16G. 
 
 (s) Ante, p. 361. {n) In the goods of Xapicr, 
 
 (i) Dabbs v. Chisman, 1 Phil- 1 Phillim. 83. 
 
 K K 2
 
 500 
 
 CHAPTEK THE THIED. 
 
 Stat. 20 & 21 
 Vict. c. 77, 
 s. 77. 
 Payments 
 under revoked 
 probates or 
 administration 
 to be valid. 
 
 Sect. 78. 
 Persons 
 making pay- 
 ments upon 
 probates or 
 administration 
 to be in- 
 demnified. 
 
 OF THE EFFECT OF REVOCATION OF PROBATE, OR LETTERS OF 
 ADMINISTRATION, ON THE MESNE ACTS OF THE EXECUTOR 
 OR ADMINISTRATOR. 
 
 It remains to consider what effect the revocation of probate 
 or letters of administration has on the intermediate acts of the 
 former executor or administrator. 
 
 Before dealing with the jirinciples governing the effect of 
 revocation, and the cases decided thereon, it seems desirable 
 to call attention to the statutory enactments which have, to a 
 large extent, rendered inapplicable the old principles and 
 cases. 
 
 By sect. 77 of the Court of Probate Act, 1857 (20 & 21 
 Vict. c. 77), it is expressly enacted that " where any probate 
 " or administration is revoked under this Act, all payments 
 " hond fide made to any executor or administrator under such 
 " probate or administration before the revocation thereof shall 
 " be a legal discharge to the person making the same, and 
 " the executor or administrator, who shall have acted under 
 " any such revoked probate or administration, may retain, and 
 " re-imburse himself in respect of, any payments made by 
 " him, which the person, to whom probate or administration 
 " shall be afterwards granted, might have lawfully made." 
 
 And by sect. 78 it is enacted that " all persons and corpo- 
 " rations, making, or permitting to be made, any payment or 
 " transfer hond fide, upon any probate or letters of administra- 
 " tion granted in respect of the estate of any deceased person 
 " under the authority of this Act, shall be indemnified and 
 " protected in so doing, notwithstanding any defect or circum- 
 " stance whatsoever affecting the validity of such probate or 
 " letters of administration."
 
 Ch. III.] Of the Consequences of Revocation. 501 
 
 The first important distinction on this subject is, between Where the 
 grants which are void, and such as are merely voidable. If 
 the grant be of the former description, the mesne acts of the 
 executor or administrator, done between the grant and its 
 revocation, except in so far as they are protected by the 
 above-mentioned statutes, shall be of no validity : As if 
 administration be granted on the concealment of a Will, 
 appointing executors, and afterwards a Will appear, inasmuch 
 as the grant was void from its commencement, all acts per- 
 formed by the administrator in that character shall be equally 
 void ; nor can they, although the executor should refuse to 
 act, be made good by relation {a) : So in Grayshrouk v. 
 Fox (b), an action of detinue was brought by an executor 
 against the defendant who had purchased goods belonging to 
 the testator, from one to whom the Ordinary had, imme- 
 diately after the testator's death, and before the executor had 
 proved the Will, granted administration ; and it was holdeu 
 that the executor who sued after probate might recover. So, 
 if administration be granted before the refusal of the executor, 
 a sale by the administrator of the testator's effects shall be 
 void, although the executor aforesaid appear and renounce (c). 
 So in the case of Woolley v. Clark {d) , a Will was proved 
 by the executor named in it, who after probate sold the 
 
 (a) Abram v. Cunningham, 2 siderecl that Abram v. Cunning- 
 Lev. 182. But a grant of letters ham, uhi sup., was decided on the 
 of administration obtained by ground that the concealed Will 
 suppressing a Will containing 710 had appointed executors, who, 
 appointment of executors is not therefore, had a right of property 
 void ah initio, and accordingly a vested in them before probate, and 
 sale of leaseholds by au adminis- not upon the fraud committed in 
 tratrix who had obtained a grant concealing the Will. 
 of administration under these {h) Plowd. 276. 
 circumstances to a purchaser who (c) Abram v. Cunningham, uhi 
 was ignorant of the suppression of supra. 
 
 the Will was upheld by the Court {d) 5 B. & A. 744. But this 
 
 although the grunt was revoked case would seem to be of doubtful 
 
 after the sale : Boxall v. Boxall, authority. See ante, p. 222, 
 
 27 C. D. 220. It is to be observed note (a), and p. 224. 
 that Kay, J., in this case con-
 
 502 Oftltc Revocation ofProhate, dec. [Pt. i. Bk. vi. 
 
 goods of the testator ; at the time of the sale he had notice 
 of a subsequent Will, which was afterwards proved, and the 
 probate of the former "\^'ilI revoked on citation : whereupon 
 the executor under the latter Will brought trover against 
 the executor under the former for the goods sold : and it was 
 holden, that the action was sustainable to recover the full 
 value, and that the defendant was not entitled, in mitigation 
 of damages, to show that he had administered assets to the 
 amount. 
 
 In these cases, when the wrongful executor or adminis- 
 trator has sold the property of the deceased, the rightful 
 representative may either, as in the case just mentioned, 
 maintain trover, or detinue ; or he may bring assumpsit 
 for the money produced by the sale, as so much money 
 received to his use, as executor or administrator ; for the 
 plaintiff may waive the tort, and suppose the sale made "with 
 his consent (e). 
 
 It should seem, however, that, as between the rightful 
 representative and a person to whom the executor or admi- 
 nistrator under a void probate, or grant of letters, has aliened 
 the effects of the deceased, the act of alienation, if done in the 
 due course of administration, shall not be void. Thus in the 
 case of Grayshrooh v. Fox, above mentioned, it was laid down 
 by the Court, that if the sale had been made to discharge 
 funeral expenses or debts, which the executor or administrator 
 was compellable to pay, the sale would have been indefeasible 
 for ever {f). 
 TVhere the If the grant were only voidable, then another distinction 
 
 grant is void- 
 
 abJe. 
 
 {r) Laiiiine v. Dorrell, 2 Lord j^ay on beincj allowed, to take away 
 Eaym. 1216. Where an auctioneer, the goods: Dickenson v. Naul, 4 
 employed by a supposed executrix, B. & Adol. 638. See also Cross- 
 sold goods of the testator, but key v. Mills, 1 Crompt. M. & E. 
 before payment, the real executrix 298. Allen v. Hopkins, 13 M. & 
 claimed the moneyfrom the buyer, W. 94. 
 
 it was held that the auctioneer (/) Plowd. 282, 283. See ante, 
 
 could not afterwards maintain an pp. 222, 223. Coulter's case, 5 Co. 
 
 action against the buyer, though 30, /). Parker r. Kett, 1 Lord Eaym. 
 
 the latter expressly promised to CGI.
 
 Ch. III.] Of the Consequences of Revocation. 503 
 
 arises between the case of a suit by citation, -wliich is to 
 countermand or revoke a former probate or former letters of 
 administration, and an appeal, which is always to reverse a 
 former sentence {g). In case of an appeal all intcrmediato 
 acts of the executor or administrator are ineffectual ; because 
 the appeal suspends the former sentence {h) ; and on its re- 
 versal it is as if it had never existed (/). 
 
 But if the suit be by citation, and the grant of adminis- 
 tration be voidable only (as where it has been granted to a 
 party not next of kin) {k), or on the refusal of an executor 
 who has before administered Q), or non vocatis jure vocandis, 
 without citing the necessary parties {m), all lawful acts done 
 by the first administrator shall be valid : as a honCi fide sale 
 or a gift by him of the goods of the intestate («), and such 
 gift shall be available, even if it were with intent to defeat 
 the second administrator, or were made pendente lite, on the 
 citation (o) ; although by stat. 13 Eliz. c. 5, it be void as to 
 a creditor {p). Again, if the administration be granted on 
 condition, all the acts which the administrator does before 
 the breach of the condition are good : so that the subsequent 
 administrator cannot avoid any gifts or sales before such 
 breach made by such conditional administrator {q). So if 
 administration be committed to a creditor, and after repealed 
 at the suit of the next of kin, the creditor shall retain 
 against the rightful administrator, and his disposal of goods, 
 even pending his citation, till sentence of repeal, is good (?•)• 
 And where there was a citation to repeal administration, 
 but the grant was affirmed and administration granted to 
 
 {g) Packman's case, 6 Co. 18, 6, cited Dyer, 166, /;, in marg. 
 
 ante, p. 487. (o) Bro. Abr. Administrator, 
 
 {h) Price v. Parker, 1 Lev. 158. pi. 33. Packman's case, 6 Co. 
 
 (i) 6 Co. 18, h. Many such 18, h. 
 
 intermediate acts are now protected (jp) 6 Co. 18,5. Treat, on Eq. 
 
 by the sections of 20 & 21 Vict. c. Pt. 2, c. 1, s. 5. 
 
 77, aboTB cited. (7) 6 Co. 19, a. Godolph. Pt. 2, 
 
 Qt) Ante, p. 493. c. 31, s. 5. 
 
 {I) Ante, p. 227. (r) Blackborough v. Davis, 1 
 
 (m) Ante, p. 492. Salk. 38. 
 
 (n) Wadcsworth t'. Andrews,
 
 504 
 
 Oftlie Revocation of Frohatc, tOc. [Pt. i. Bk. vi. 
 
 Test whether 
 administration 
 void or void- 
 able. 
 
 Payment to an 
 executor or 
 administrator 
 under a void 
 probate or ad- 
 ministration is 
 a discharge. 
 
 another, upon whicli an appeal was sued, and both sentences 
 repealed, an assignment of a lease, made by the first adminis- 
 trator in the meantime, was held good (s) : for the repeal was 
 merely of the sentence in the citation, and so it is all one as 
 if the administration had been avoided in the suit upon the 
 citation. 
 
 But where an administrator sold a term charged with a 
 trust, in trust for himself, although the administration was 
 revoked on a suit by citation, and not on an appeal, the 
 assignment was decreed to be set aside {t). 
 
 It may perhaps be laid down as a general test, whether an 
 administration is void or voidable, that, where the grant is in 
 derogation of the right of an executor, it is void : but where 
 the administration is granted by the proper jurisdiction, and 
 is only in derogation of the right of the next of kin, or 
 residuary legatee, it is merely voidable {u). 
 
 And even before the passing of 20 & 21 Yict. c. 77, it 
 was held that payment to an executor, Avho had obtained 
 probate of a forged Will, was a discharge to the debtor, 
 notwithstanding the probate was afterwards declared null 
 in the Ecclesiastical Court {x) ; on the principle that if the 
 executor had brought an action against the debtor, the latter 
 could not have controverted the title of the executor, as long 
 as the probate was unrepealed ; and the debtor was not 
 obliged to wait for a suit, w^hen he knew that no defence 
 could be made to it. 
 
 This, however, was to be understood only where the grant 
 was revoked on citation ; if it were reversed on appeal, the 
 administrator's or executor's authority was suspended by 
 the appeal, and of course such payments would have been 
 void {y). 
 
 (s) Semine v. Seniine, 2 Lev. 90. 
 
 {t) Jones V. "Waller, 2 Chanc. 
 Cas. 129. 
 
 (w) However, it has been sliown 
 that an administration is not 
 void, but voidable only, where 
 improperly committed after acts of 
 
 administration by an executor : 
 Ante, p. 227. 
 
 (.'•) Allen r. Dundas, 3 T. R. 
 125, 129. 
 
 {y) Toller, 131. But see stat. 
 20 & 21 Vict. c. 77. s. 77, srqira.
 
 Ch. III.] Of the Consequences of Revocation. 505 
 
 Whether the acTmiuistration be void or voidable, or be Abatement of 
 . • ^ • c ,• 1 111 ^"'* ^y admi- 
 
 revoked on citation or appeal, it an action was brought by nistrator by 
 
 the administrator, and while it was pending administration admTnttra" 
 
 was committed to another, the writ would formerly have t'o°- 
 
 abated {z). By sect. 76 of the Court of Probate Act (20 & 21 20 & 21 Vict. 
 
 Vict. c. 77), " where before the revocation of any temporary Suggestion to 
 
 administration any proceedings at law or in equity have been t^g'^j.gyoj.^'^ 
 
 commenced by or against any administrator so appointed, the 
 
 Court in which such proceedings are pending may order that 
 
 a suggestion be made upon the record of the revocation of such 
 
 administration, and of the grant of probate or administration 
 
 which shall have been made consequent thereupon, and that 
 
 the proceedings shall be continued in the name of the new 
 
 executor or administrator in like manner as if the proceeding 
 
 had been originally commenced by or against such new 
 
 executor or administrator, but subject to such conditions and 
 
 variations, if any, as such Court may direct." 
 
 And since the Judicature Acts proceedings commenced by, No abatement 
 
 of suit since 
 
 or against, any administrator, before revocation of the ad- Judicature 
 
 ministration, do not become abated, but upon such revocation 
 
 they may be continued by, or against, the person to whom the 
 
 new grant of administration is made. An order that the Modem 
 
 . . procedure. 
 
 proceedings shall be carried on by or against such new ad- 
 ministrator (as the case may be) may be obtained ex 'parte on 
 application to the Court or a judge upon an allegation of the 
 transmission of interest to the new administrator by such 
 grant of administration to him {a). 
 
 And if an administrator, before the repeal of the adminis- 
 tration, obtain a judgment for a debt due to the intestate, the 
 new administrator, upon the grant to him of administration, 
 may apply to the Court or a judge for leave to issue execution, 
 and the Court or a judge, if satisfied that he is entitled to 
 issue execution upon such judgment, may make an order to 
 that effect {h) . 
 
 (2) Bro. Administrator, pL 3. rr. 1-5. 
 Toller, 131. {h) 11. S. C. 1883, Ord. XLil., 
 
 (a) K. S. C. 1883, Ord. xvir., r. 23.
 
 50C) 
 
 Of the Revocation of Probate, cOe. [Pt. i. Bk. vi. 
 
 The adminis- 
 trator under a 
 void grant to 
 be recouped in 
 damages for 
 debts paid, 
 &c., in the 
 course of his 
 administra- 
 tion. 
 
 20 & 21 Vict. 
 
 Proper pica by 
 administrator 
 after adminis- 
 tration 
 revoked. 
 
 It was formerly held that Avlicre administration was 
 granted, and afterwards there appeared to be an executor, if 
 the administrator had paid debts, legacies, or funeral ex- 
 penses, which the law forced the executor to pay, the ad- 
 ministrator, in an action against him by the executor, should 
 recoup so much in damages, because he was compelled to pay 
 it, and the true executor had no prejudice by it, forasmuch as 
 he himself would have been bound to pay it (c). So it was 
 holden in equity, where a widow possessed herself of the 
 personal estate as an executrix, under a revoked Will, and 
 paid debts and legacies, but had no notice of revocation, that 
 she should be allowed those payments (cZ). And now by stat. 
 20 & 21 Vict. c. 77, s. 77, it is expressly enacted "that the 
 executor or administrator who shall have acted under any 
 such revoked probate or administration may retain and re- 
 imburse himself in respect of any payments made by him 
 which the person to whom probate or letters of administration 
 shall be afterwards granted might have lawfully made." 
 
 It was formerly held that a defendant sued as administrator 
 might plead, that, jjcndcnte hrevi, administration was com- 
 mitted to another (f). With respect to the proper plea, in a 
 case where the administration is revoked before the action 
 commenced; the defendant in Garter v. Dee (/), being sued 
 as administrator, pleaded, that before the date of the writ, his 
 administration was revoked and granted to another : Per 
 Wilde : He ought to have set forth that he had fully adminis- 
 tered all the goods in his hands, or else that he delivered them 
 over to the new administrator (r/). If he should be sued as 
 executor de son tort (li), and has delivered the assets over 
 
 (c) Peckliam's case, cited Plowd. 
 282. Bacon Abr. Exors. (E. 13) ; 
 and see the authorities mentioned, 
 ante, pp. 221, 222, with respect to an 
 executor de son tort. But the con- 
 trary seems to have been holden in 
 WooUey v. Clark, 5 B. & A. 744. 
 Ante, p. 222, note («). 
 
 {(1) Hele r. Stowel, 1 Chanc. 
 
 Cas. 126, Bac. Abr. Exors. (E. 13). 
 
 (e) Bro. Administrator, pi. 3. 
 
 (/) 1 Freem. 13. 
 
 (g) See also Palmer v. Lither- 
 ham, Latch. 267. Lawson i'. Crofts, 
 1 Keb. 114. 
 
 (/() See Turner v. Davies, 1 Mod. 
 63, by Kelynge, C.J.
 
 Ch. III.] Of the Consequences of Revocation. 
 
 507 
 
 before action brought, plcne adininistravit seems to have been 
 held to be the proper plea (i). 
 
 (i) See an<c, pp. 218, 219. These 
 cases are retained in this edition 
 of this work because, although 
 they relate to the system of 
 pleading as it existed before the 
 Judicature Acts, they would still 
 
 seem to be useful as indicatingwhat 
 facts will constitute a good defence 
 in an action against an adminis- 
 trator, in cases where the adminis- 
 tration is revoked before, or 
 pending, action.
 
 )08 
 
 BOOK THE SEVENTH. 
 
 Stat. 43 Vict. 
 c. 14. 
 Grant of 
 duties on 
 probates and 
 letters of 
 administra- 
 tion. 
 
 Account to 
 accompany 
 affidavit on 
 application 
 for probate or 
 
 OF THE sta:\ip duties ox probates, and ox letters of 
 
 ADMINISTRATION (fl). 
 
 JjY tlie Customs and Inland Revenue Act, 1880, 43 Vict, 
 c. 14, section 9, it is enacted that " On and after the first day 
 of April one thousand eight hundred and eighty, in lieu of 
 the stamp duties now payahle {h) upon prohates of Wills and 
 letters of administration in England and Ireland, and upon 
 inventories to be exhibited and recorded in any Commissary 
 Court in Scotland, there shall be charged and paid the duties 
 specified in the schedule to this Act (c) : Provided that an 
 additional inventory to be so exhibited or recorded of any 
 effects of a deceased person, where a former duly stamped 
 inventory of the estate and effects of the same person has 
 been exhibited and recorded prior to the first day of April 
 one thousand eight hundred and eighty, shall be chargeable 
 with the amount of stamp duty with which it would have 
 been chargeable if this Act had not been passed. 
 
 Sect. 10. — (1.) " Together with the affidavit to be required 
 and received from a person applying for a probate or letters of 
 administration in England, in conformity with section thirty- 
 
 (a) The subject of the stamp 
 duties on probates and letters of 
 administration before 1880 will be 
 found to be exhaustively dealt with 
 in Hanson's Probate, Legacy, and 
 Succession Duty Acts, 3rd ed., 
 and the law after 1880, in the 
 " Revenue Acts, 1880 and 1881," 
 by the same author. 
 
 (6) I.e., those imposed by 55 
 Geo. III. c. 184, as modified by 
 22 & 23 Vict. c. 36, and 27 & 28 
 
 Vict. c. 56. 
 
 (c) This schedule is here omitted, 
 as it is superseded by the scale of 
 duties contained in 44 Vict. c. 12, 
 s. 27, in resjiect of probates or 
 letters of administrations granted 
 on or after 1 June, 1881. It 
 should be observed that on and 
 after that date stamp duties on 
 affidavits of value are substituted 
 for stamps on the grants them- 
 selves.
 
 Ft. I. Bk. VII.] Of the Stamp Duties. 
 
 509 
 
 eight of the Act passed in the fifty-fifth year of the reign of letters of ad- 
 
 ° ^ ministration. 
 
 King George the Third, chapter one hundred and eighty-four, 
 
 there shall be delivered an account {d) of the particulars of the 
 
 personal estate for or in respect of which the probate or 
 
 letters of administration is or are to be granted, and of the 
 
 estimated value of such particulars. 
 
 (2.) " The account so delivered shall be transmitted to the 
 Commissioners of Inland Revenue, together with the docu- 
 ments mentioned in section ninety-three of the Act passed in 
 the twentieth and twenty-first years of her Majesty's reign, 
 chapter seventy-seven. 
 
 (3.) " A like account shall be annexed to the affidavit to be 
 required and received from the person applying for a probate 
 or letters of administration in Ireland, in conformity with 
 section one hundred and seventeen of the Act passed in the 
 fifty-sixth year of the reign of King George the Third, chapter 
 fifty-six, and such account shall be in lieu of, and in substitu- 
 tion for, the account annexed to the form of affidavit set forth 
 in Part III. of the schedule to the said Act. 
 
 (4.) *' Every account to be delivered in pursuance of this 
 section shall be in accordance with such form as may be 
 prescribed by the Commissioners of Her Majesty's Treasury. 
 
 Sect. 11. "Where any legacy duty or succession duty shall be Power to com- 
 presumptively payable in respect of any interest in expectancy ju^y ^j. gucces- 
 upon the determination of a life or other temporary interest ^^'^^ ^^^\. , 
 
 i i. J presumptively 
 
 in possession in a legacy, or residue, or in personal property payable in 
 
 certain cases. 
 
 comprised in a succession, and the duty (if any) payable upon 
 the life or other temporary interest shall have been fully paid 
 and satisfied, it shall be lawful for the Commissioners of 
 Inland Revenue, in their discretion, upon the application of 
 the executor or trustee or other person who would be account- 
 able for the duty in respect of such interest in expectancy, if 
 it were then in possession, to commute the duty (c) pre- 
 
 [d) For form of account, see 44 accept composition for legacy duty 
 Vict. c. 12, s. 29, post, p. 514. under a Will, see 44 Vict. c. 12, 
 
 (e) As to powers oi" tlie Commia- s. 43, post, p. 521. 
 aioners of Inland Revenue to
 
 510 
 
 16 & 17 Vict, 
 
 c. :.i. 
 
 Discharge of 
 executor, kc, 
 from claim to 
 duty on dis- 
 tribution of 
 fund. 
 
 Relief from 
 legacy duty 
 ■when whole 
 personal 
 estate is less 
 than lOOZ. 
 
 Stat. 44 Viet, 
 c. 12. 
 
 Stamp duties 
 to be under 
 
 Of the Stamp Duties. [Pt. i. Bk. vil. 
 
 sumptively payable for a certain sum to be presently 
 paid. 
 
 " For assessing the amount which shall be so payable the 
 Commissioners shall cause a present value to be set upon the 
 presumptive duty, regard being had to any contingencies 
 affecting the liability to such duty, and the interest of money 
 involved in the calculation being reckoned at the rate for the 
 time being allowed by the Commissioners in respect of duties 
 paid in advance under the Succession Duty Act, 1853. 
 
 " Upon the receipt of the certain sum the Commissioners 
 shall give a discharge for the duty accordingly. 
 
 Sect. 12. " When an executor, administrator, or trustee shall 
 have given notice in writing to the Commissioners of Inland 
 Revenue for any claim to legacy duty or succession duty in 
 respect of any fund in his hands which he intends to dis- 
 tribute, and shall have delivered to the Commissioners all 
 particulars which they may require in order to ascertain the 
 existence and extent of any such claim, he shall be at liberty 
 to distribute the fund amongst the parties entitled thereto, 
 after satisfaction of any claims to duty made by the Com- 
 missioners, and shall be entitled to receive from them a 
 certificate discharging him from his liability to any duty in 
 respect of the fund. 
 
 " Such certificate shall not in any way affect the liability of 
 any person other than the person in whose favour it is 
 expressed to be given. 
 
 Sect. 13. " Where it appears upon an examination of the 
 account rendered to the Commissioners of Inland Revenue 
 that the value of the whole of the personal estate of any 
 person dying after the passing of this Act does not amount to 
 the sum of one hundred pounds, no legacy duty shall be 
 charged in respect thereof or of any portion thereof." 
 
 And by the Customs and Inland Revenue Act, 1881, 44 
 Vict. c. 12, which, as will appear, repeals the scale of duties 
 imposed upon probates and letters of administration granted 
 on or after 1st June, 1881, it is enacted as follows : 
 
 Sect. 2G. (1.) " The stamp duties hereinafter imposed shall
 
 Pt. I. Bk. VII.] On P ivhate and Letters of Administration. 511 
 
 be under the care and management of the Commissioners of the care and 
 Inhind Revenue, who by themselves and their officers shall of the^Commis- 
 liave the same powers and authorities for the collection, i^^^^l °^ 
 recovery, and management thereof as are by law vested in Revenue, 
 them for the collection, recovery, and management of any 
 stamp duties, and shall have all other powers and authorities 
 requisite for carrying into eflect the provisions of this Act in 
 relation to such stamp duties. 
 
 (2.) " Such stamp duties may be denoted by impressed or 
 adhesive stamps, or partly by impressed stamps and partly 
 by adhesive stamps, as the said Commissioners may think 
 proper (/). 
 
 • (3.) '* As respects the duties imposed on affidavits in 
 substitution for the duties on probates or letters of ad- 
 ministration, the several provisions now in force {g) in re- 
 lation to the last-mentioned duties shall, so far as the same 
 are consistent with the provisions of this Act, be deemed to 
 be applicable to the said duties hereby imposed, and in the 
 application thereof a probate or letters of administration 
 having thereon such a certificate as is hereinafter mentioned 
 shall for all purposes be deemed to have been duly stamped 
 in respect of the value stated in the certificate. 
 
 Sect. 27. " The duties imposed by the Customs and Inland Grant of 
 Revenue Act, 1880, upon probates of Wills and letters of respect of 
 administration in England and Ireland shall not be payable P?.^^!'^ \^\ 
 upon probates or letters of administration granted on and ministration 
 after the first day of June one thousand eight hundred and ventories. 
 eighty-one ; and on and after that day in substitution for such 
 duties, and in lieu of the duties imposed by the said Act upon 
 inventories in Scotland, there shall, save as is hereinafter 
 expressly provided, be charged and paid on the affidavit (It) to 
 
 (/) As to cases in which aJ- (/(-) This is the affidavit required 
 
 hesive stamps may be used, see Ly 55 Geo. III. c. 184, s. 38, post, 
 
 Hanson on the Revenue Acta, p. 526. As to the transmission 
 
 1880, 1881, p. 22. of this affidavit to the Comrais- 
 
 {g) See the provisions of 55 sioners and penalty for neglect to 
 
 Geo. III. c. 184, post, pp. 520, et do so, see 55 Geo. III. c. 184, 
 
 seq. s. 39, post, p. 527. 
 
 /'-^« '»-c<«^«'n>5ttoi.
 
 512 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 be required and received from the person applying for the 
 probate or letters of administration in England or Ireland, or 
 on the inventory to be exhibited and recorded in Scotland, 
 the stamp duties hereinafter specified ; (that is to say,) 
 Where the estate and eifects 
 for or in respect of which 
 the probate or letters of 
 administration is or are 
 to be granted, or where- • 
 
 of the inventory is to be 
 exhibited and recorded, 
 exclusive of what the 
 deceased shall have been 
 possessed of or entitled 
 to as trustee, and not 
 beneficially, shall be 
 above the value of 
 100^. (0, and not above Duty. 
 
 the value of 500Z. . . At the rate of one pound 
 
 for every full sum of 50/., 
 and for any fractional 
 part of 50/. over any 
 multiple of 50/. ; 
 AYhere such estate and 
 effects shall be above 
 the value of 500/., and 
 not above the value of 
 
 1,000/ At the rate of one pound five 
 
 shillings for every full sum 
 of 50/., and for any frac- 
 tional part of 50/. over any 
 multiple of 50/. ; 
 
 (t) It follows by implication 
 from this provision that all estates 
 of or under the value of lOOZ. are 
 now free from dutv- Such estates 
 
 were before this Act exempt by 
 virtue of 27 & 28 Vict. c. 56, s. 5, 
 pest, p. 525.
 
 Pt. I. Bk. VII.] On Probate and Letters of Administration. 513 
 
 Where such estate and 
 
 eflfects shall be above the 
 
 value of 1,000/. (A) . . At the rate of three pounds 
 
 for every full sum of lOOL, 
 and for any fractional part 
 of lOOL over any multiple 
 of 100/. ; 
 
 " Provided that an additional inventory, to be exhibited or 
 recorded in Scotland, of any effects of a deceased person, 
 where a former inventory of the estate and effects of the same 
 person has been exhibited and recorded prior to the first day 
 of June, one thousand eight hundred and eighty-one, shall be 
 chargeable with the amount of stamp duty with which it 
 would have been chargeable if this Act had not been passed. 
 
 Sect. 28. " On and after the first day of June, one thousand Power to 
 
 .,,,,,., ., „ ,. deduct debts 
 
 eight hundred and eighty-one, m the case oi a person dying and funeral 
 domiciled in any part of the United Kingdom, it shall be deceased died'' 
 lawful for the person applying for the probate or letters of domiciled m 
 administration in England or Ireland, or exhibiting the in- Kingdom, 
 ventory in Scotland, to state in his affidavit the fact of such 
 domicile, and to deliver therewith or annex thereto a schedule 
 of the debts due from the deceased to persons resident in the 
 United Kingdom, and the funeral expenses, and in that case, 
 for the purpose of the charge of duty on the affidavit or 
 inventory, the aggregate amount of the debts and funeral 
 expenses appearing in the schedule shall be deducted from 
 the value of the estate and effects as specified in the account 
 delivered with or annexed to the affidavit, or whereof the 
 inventory shall be exhibited. 
 
 " Debts to be deducted under the power hereby given shall 
 be debts due and owing from the deceased and payable by 
 law {I) out of any part of the estate and effects comprised in 
 
 {]:) Where the estate exceeds words, which in effect appeared in 
 
 10,000^, see stat. 52 Vict. c. 7, 5 & G Vict. c. 79, s. 23, see Percival 
 
 s. f). r. Tlie Queen, 3 II. & C. 217. 
 
 (/) As to the meaning of these 
 
 W.E. — VOL. I. L I,
 
 ;i4 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 As to forms of 
 affidavit. 
 
 Probate or 
 letters of 
 administration 
 to bear a 
 certificate in 
 lieu of stamp 
 duty. 
 
 Provision for 
 return of duty 
 overpaid. 
 
 the affidavit or inventory, and are not to include voluntary- 
 debts expressed to be payable on the death of the deceased, 
 or payable under any instrument which shall not have been 
 hand fide delivered to the donee thereof three months before 
 the death of the deceased, or debts in respect whereof any 
 real estate may be primarily liable or a reimbursement may 
 be capable of being claimed from any real estate of the 
 deceased or from any other estate or person. 
 
 " Funeral expenses to be deducted under the power hereby 
 given shall include only such expenses are as allowable as 
 reasonable funeral expenses according to law (m). 
 
 Sect. 29. " The affidavit to be required or received from any 
 person applying for probate or letters of administration in 
 England or Ireland shall extend to the verification of the 
 account of the estate and effects, or to the verification of such 
 account and the schedule of debt and funeral expenses, as the 
 case may be, and shall be in accordance with such form as may 
 be prescribed by the Commissioners of Her Majesty's Trea- 
 sury {n) ; and the Commissioners of Inland Revenue shall 
 provide forms of affidavit stamped to denote the duties payable 
 under this Act. 
 
 Sect. 30. " No probate or letters of administration shall be 
 granted by the Probate, Divorce, and Admiralty Division of 
 the High Court of Justice in England, or by the Probate and 
 Matrimonial Division of the High Court of Justice in Ireland, 
 unless the same bear a certificate in writing under the hand 
 of the proper officer of the Court, showing that the affidavit 
 for the Commissioners of Inland Revenue has been delivered, 
 and that such affidavit, if liable to stamp duty, was duly 
 stamped, and stating the amount of the gross value of the 
 estate and effects as shown by the account. 
 
 Sect. 31. " If at any time after the grant of probate or letters 
 
 'm) As to wliat funeral expenses pp. 836 et seq. 
 are allowable to executors and (n For ibmis aiDproved bv the 
 
 administrators as against creditors, Treasury, see A2:>pendix to Hanson's 
 
 legatees, next of kin, see post, Revenue Acts, 1881) and 1881.
 
 Pt. I. Bk. VII.] On Probate and Letters of Administration. 515 
 
 of administration (o), and during the administration of the 
 estate, the value mentioned in the certificate of the officer of the 
 Court shall be found to exceed the true value of the personal 
 estate and efi"ects of the deceased, or if at any time within 
 three years after the grant, or within such further period as 
 the Commissioners of Inland Revenue may allow, it shall 
 appear that no amount or an insufficient amount was deducted 
 on account of debts and funeral expenses, it shall be lawful for 
 the said Commissioners, upon proof of the facts to their satis- 
 faction, to return the amount of stamp duty which shall have 
 been overpaid {j)), and to cause a certificate to be written by 
 an authorised officer on the probate or letters of administra- 
 tion setting forth such true value, or, as the case may be, the 
 amount, or corrected amount of deduction, and such certifi- 
 cate shall be substituted for, and have the same force and 
 effect as, the certificate of the officer of the Court. 
 
 Sect. 32. " If at any time it shall be discovered that the per- Provision for 
 
 payment of 
 
 sonal estate and effects of the deceased were, at the time of the further duty. 
 
 grant of probate or letters of administration, of greater value 
 
 than the value mentioned in the certificate, or that any 
 
 deduction for debts or funeral expenses was made erroneously, 
 
 the person acting in the administration of such estate and , ^.^ oui<^e^iA^ 
 
 eff'ects shall, within six months after the discovery {q), deliver 
 
 ar further affidavit (?•), with an account to the Commissioners 
 
 of Inland Revenue, duly stamped for the amount which, with 
 
 the duty (if any) previously paid on an affidavit in respect of 
 
 such estate and effects, shall be sufficient to cover the duty 
 
 chargeable according to the true value thereof, and shall at the 
 
 same time pay to the said Commissioners interest upon such 
 
 amount at the rate of five pounds per centum per annum 
 
 from the date of the grant, or from such subsequent date as 
 
 (o) Applications for return of (ij) For penalty of donLle duty 
 
 duty under 55 Geo. III. c. 184, for neglect, see post, section 40. 
 
 s. 40, had to b e made within si.\ (r) As to cases where the estat 
 
 months alter discovery of over- exceeds 10,000?., see stat. 52 Vict, 
 
 payment. c. 7, s. 5 (3). 
 
 {p) See Stat. 52 Vict. c. 7, s. 5 (6). 
 
 L L 2
 
 ilG 
 
 Provisions as 
 to obtaining 
 probate, iJic. , 
 where gross 
 value of estate 
 does not 
 exceed ?.00/. 
 
 Of the Stamp Duties. [Pt i. Bk. vii. 
 
 the said Commissioners may, in the circumstances, think 
 proper. 
 
 " The Commissioners of Inland Revenue, upon the receipt 
 of such afiidavit duly stamped as aforesaid, shall cause a 
 certificate to be written by an authorised officer on the probate 
 or letters of administration setting forth the true value of 
 the estate and effects as then ascertained, or, as the case may 
 be, the corrected amount of deduction, and such certificate 
 shall be substituted for, and have the same force and effect as, 
 the certificate of the officer of the Court, 
 
 Sect. 33. — (1.) "Where the whole personal estate and 
 efi'ects of any person dijimj on or after the first day of June one 
 thousand eight hundred and eighty -one (inclusive of property 
 by law made such personal estate and effects for the purpose of 
 the charge of duty, and any personal estate and efiects situate 
 out of the United Kingdom), without any deduction for debts 
 or funeral expenses, shall not exceed the value of three 
 hundred pounds, it shall be lawful for the person intending to 
 apply for probate or letters of administration in England or 
 Ireland, to deliver to the proper officer of the Court or to any 
 officer of inland revenue duly appointed for the purpose, 
 a notice in writing in the prescribed form (s), setting forth 
 the particulars of such estate and effects, and such further 
 particulars as may be required to be stated therein, and to 
 deposit with him the sum of fifteen shillings for fees of Court 
 and expenses, and also, in case the estate and efi'ects shall 
 exceed the value of one hundred pounds, the further sum of 
 thirty shillings for stamp duty. 
 
 (2.) " If the officer has good reason to believe that the 
 whole personal estate and efiects of the deceased exceeds the 
 
 {s) For the directions issued for 
 the guidance of the Inland Revenue 
 Officers appointed to receive notices 
 of application for grants of probate 
 and letters of administration with 
 or without the AYill annexed, as to 
 the particulars required to he 
 
 stated in such notices and regula- 
 tions with respect to the trans- 
 mission of the same and of the 
 neces.-ary forms and documents, 
 see the Appendix to Hanson's 
 Revenue Acts, 1880 and ISSl.
 
 Pt. I. Bk. vii.] On Pi'ohate and Letter.^ of Adminktration. 517 
 
 value of three hundred pounds, he shall refuse to accept the 
 notice and deposit until he is satisfied of the true value 
 thereof. 
 
 (3.) " The principal registrars of the Probate, Divorce, 
 and Admiralty Division of the High Court of Justice in 
 England, and of the Probate and Matrimonial Division of the 
 High Court of Justice in Ireland, in communication with the 
 Commissioners of Inland Kevenue, shall prescribe the form 
 of notice, and make such regulations as may be necessary 
 with respect to the transmission of notices by officers of 
 Inland Kevenue, the steps to be taken for the preparation 
 and filling up of forms and documents, and generally all 
 matters which may be necessary, so as to authorise the grant 
 of probate or letters of administration. 
 
 (4.) " Officers of Inland Eevenue are hereby empowered to 
 administer all necessary oaths or affirmations, and in the case 
 of letters of administration, to attest the bond and accept 
 the same on behalf of the President or Judge of the 
 Division. 
 
 (5.) " Where the estate and effects shall exceed the value 
 of one hundred pounds (i), the stamp duty payable on the 
 affidavit for the Commissioners of Inland Revenue shall be 
 the fixed duty of thirty shillings, and no more. 
 
 Sect. 34. — (1.) "The Intestates, Widows, and Children Provision as 
 (Scotland) Act, 1875, and the Small Testate Estate (Scotland) wherrgros"^'^ 
 Act, 1876, as amended by the Sheriffs Court (Scotland) Act, "XoennL^^T^ 
 1876, shall be extended so as to apply to any case where the ceed 300Z. 
 
 1 1 1 , , -. ^ . <: 1 . , 39 & 40 Vict. 
 
 whole personal estate and etiects oi a person dymg on or after c. 24. 
 
 the first day of June one thousand eight hundred and eighty- ^^7^^° ^^'^*' 
 
 one, without any deduction for debts or funeral expenses, 
 
 shall not exceed the value of three hundred pounds, whoever 
 
 may be the applicant for representation, and wheresoever the 
 
 deceased may have been domiciled at the time of death, and 
 
 (f) In cases where the whole (36 & 37 Vict. c. 52), extended by 
 
 estate does not exceed 100^., see 38 & 39 Vict. c. 27, ante, pp. 248, 
 
 the provisions of the intestates, 249. 
 Wiihnvs and Children Act, 1873
 
 518 
 
 Of the Stamp Duties. [Pt. I. Bk. vil. 
 
 Provision in 
 case of subse- 
 quent dis- 
 covery that 
 the value of 
 estate ex- 
 ceeded 300^ 
 
 Relief from 
 legacy duty 
 in cases under 
 300^. 
 
 Power to com- 
 missioners to 
 require 
 explanations 
 and proof in 
 support of 
 affidavit or 
 inventory. 
 
 Grant of duties 
 on accounts 
 of certain 
 Itrojierty 
 
 the fees payablo iiuder Schedule C. ol" each of the two first- 
 mentioned Acts shall not exceed the sum of fifteen shillings, 
 inclusive of the fee of two shillings and sixpence, to be paid 
 to the commissary clerk, or sheriff clerk. 
 
 (2.) " In any such case where the estate and effects shall 
 exceed the value of one hundred pounds, the stamp duty 
 payable on the inventory shall be the fixed duty of thirty 
 shillings, and no more. 
 
 Sect. 35. " Where representation has been obtained in con- 
 formity with either of the two preceding sections, and it shall 
 be at any time afterwards discovered that the whole personal 
 estate and effects of the deceased were of a value exceeding 
 three hundred pounds, then a sum equal to the stamp duty 
 payable on an affidavit or inventory in respect of the true 
 value of such estate and effects shall be a debt due to Her 
 Majesty from the person acting in the administration of such 
 estate and effects, and no allowance shall be made in respect 
 of the sums deposited or paid by him, nor shall the relief 
 afforded by the next succeding section be claimed or allowed 
 by reason of the deposit or payment of any sum. 
 
 Sect. 36. " The payment of the sum of thirty shillings for the 
 fixed duty on the affidavit or inventory in conformity with this 
 Act shall be deemed to be in fall satisfaction of any claim to 
 legacy duty or succession duty in respect of the estate or 
 effects to which such affidavit or inventory relates. 
 
 Sect. 37. "It shall be lawful for the Commissioners of Inland 
 Revenue at any time and from time to time within three 
 years after the grant of probate or letters of administration 
 or recording of inventory, as they may think necessary, to 
 require the person acting in the administration of the estate 
 and effects of any deceased person, to furnish such explana- 
 tions, and to produce such documentary or other evidence 
 respecting the contents of, or particulars verified by, the 
 affidavit or inventory as the case may seem to them to 
 require. 
 
 Sect. 38. — ( 1.) " Stamp duties at the like rates as are by this 
 Act charged on affidavits and inventories shall be charged and
 
 Pt. I. Bk. VII.] On Fi'ohate and Letters of Administ ration. 51'J 
 
 paid on accounts {a) delivered of the personal or moveable 
 
 property to be included therein according to the value 
 
 thereof. 
 
 (2.) " The personal or moveable property to be included in 
 
 an account shall be property of the following descriptions, 
 
 viz. : — 
 
 {a.) " xlny property taken as a donatio mortis causa made 
 by any person dying on or after the first day oi 
 June, one thousand eight hundred and eighty-one, 
 or taken under a voluntary disposition, made by 
 any person so dying, purporting to operate as an 
 immediate gift inter vivos, whether by way of 
 transfer, delivery, declaration of trust or otherwise, 
 which shall not have been bond fide made three (x-) 
 months before the death of the deceased. 
 ij).) " Any property which a person dying on or after such 
 day having been absolutely entitled thereto, has 
 voluntarily caused or may voluntarily cause to be 
 transferred to or vested in himself and any other 
 person jointly, whether by disposition or otherwise, 
 so that the beneficial interest therein, or in some 
 part thereof, passes or accrues by survivorship on 
 his death to such other person, 
 (c.) ''Any property passing under any past or future 
 voluntary settlement (tj) made by any person dying 
 on or after such day by deed or any other instru- 
 ment not taking efi'ect as a will, whereby an interest 
 in such property for life or any other period deter- 
 minable by reference to death is reserved either 
 expressly or by implication to the settlor, or whereby 
 the settlor may have reserved to himself the right, 
 by the exercise of any power, to restore to himself, 
 or to reclaim the absolute interest in such property. 
 
 (u) Where the value of the 52 Vict. c. 7, s. 11. 
 
 estate exceeds 10,000Z., see stat. [y) See Crossniau r. The QueeU; 
 
 52 Vict. c. 7, s. 5 (2). 18 Q. B. D. 256. 
 
 [X) Now " twelve " months. See
 
 520 
 
 Oftlic Stamp Duties. [Pt. i. Bk. vii. 
 
 Delivery of 
 accounts on 
 oath. 
 
 Double duty 
 payable in caf5C 
 of default. 
 
 Cesser of 
 legacy and 
 succession 
 duties at the 
 rate of one 
 per cent, in 
 certain cases. 
 
 (3.) ""Where au account delivered duly stamped comprises 
 property passing under a voluntary settlement, and, upon the 
 production of the settlement, it shall appear that the stamp 
 duty of live shillings jier centum has been paid thereon 
 according to the amount or value of the property so passing, 
 or any part thereof, the amount of such stamp duty shall be 
 returned to the person delivering the account. 
 
 S3ct. 39. "Every person who as beneficiary, trustee, or other- 
 wise, acquires possession, or assumes the management, of any 
 personal or moveable property of a description to be included 
 in an account according to the preceding section shall upon 
 retaining the same for his own use, or distributing or dis- 
 posing thereof, and in any case within six calendar months 
 after the death of the deceased deliver to the Commissioners 
 of Inland Revenue a full and true account, verified by oath, 
 of such property duly stamped as required by this Act. Any 
 officer authorised by the Commissioners for the purpose may 
 administer the oath. 
 
 Sect. 40. " If any person who ought to obtain probate or let- 
 ters of administration or deliver a further affidavit or to exhibit 
 an inventory or who is required to deliver such account as 
 aforesaid shall neglect to do so within the period prescribed 
 by law for the purpose, he shall be liable to pay to Her 
 Majesty double the amount of duty chargeable, and the same 
 shall be a debt due from him to the Crown, and be recoverable 
 by any of the ways or means now in force for the recovery of 
 probate, legacy, or succession duties. 
 
 Sect. 41. "In respect of any legacy, residue, or share of 
 residue payable out of, or consisting of any estate or effects 
 according to the value whereof duty shall have been paid on the 
 affidavit or inventory or account, in conformity with this Act, 
 the duty at the rate of one pound per centum imposed by the 
 Act of the fifty-fifth year of King George the Third, chapter 
 one hundred and eighty-four shall not be payable; 
 
 " And in respect of any succession to property according to 
 the value whereof duty shall have been paid on the affidavit 
 or inventory or account in conformity with this Act, the duty
 
 Ft I. Bk. VII.] On Prohafe and Letters of Administration. 521 
 
 at the rate of one pound per centum imposed by the Succes- i*5 & 17 Vict, 
 sion Duty Act, 1853, shall not be payable. 
 
 Sect. 42. " Subject to the relief from legacy duty given by Charge of 
 section thirteen of the Customs and Inland Revenue Act, legacies not 
 1880, every pecuniary legacy or residue or share of residue ^"00;"*'°^ 
 under the Will or the intestacy of a person dying on or after 
 the first day of June one thousand eight hundred and eighty- 
 one, although not of an amount or value of twenty pounds, 
 shall be chargeable to the duties imposed by the said Act of 
 the fifty-fifth year of King George the Third, chapter one 
 hundred and eighty-four, as modified by this Act. 
 
 Sect. 43. "It shall be lawful for the Commissioners of Inland Power to 
 
 T-, ., T J- p ,1 1- • iT Commissioners 
 
 Kevenue, upon the application 01 the person acting in tne to accept 
 execution of the Will of any deceased person, and upon the f "g'^Jy '^ut? ^°'' 
 delivery to them of an account showing the amount of the under a Will, 
 estate and effects in respect whereof legacy duty is payable, 
 together with the names or description of class of the persons 
 entitled thereto and every part thereof, in possession or 
 expectancy, and their degrees of consanguinity to the testator, 
 to assess the duty upon the amount shown by the said account 
 at such a sum by way of composition as, having regard to the 
 circumstances, shall appear to be proper, and to accept pay- 
 ment of the duty so assessed in full discharge of all claims 
 for legacy duty under such will. 
 
 " If the Commissioners are of opinion that an application 
 should receive the assent of any person, they shall refuse to en- 
 tertain the application until such assent shall have been given." 
 
 The provisions of the above Act have been supplemented 
 by those of the Customs and Inland Eevenue Act, 1889 (52 stat. 52 Vict. 
 Yict. c. 7), by section 5 of which it is enacted that : — ' ' " '*' 
 
 (1.) "Where, in the case of any person applying for pro- Estate duty 
 bate or letters of administration granted in England or Ireland p"opeX"^ 
 on or after the first day of June one thousand eight hundred P'^^ssing by 
 
 •^ ^ . Will or on 
 
 and eighty-nine, or in the case of any person exhibiting an intestacy. 
 inventory in Scotland on or after that day, the value of the 
 estate and cfiects in respect whereof duty is charged on the 
 affidavit or inventory by section twenty- seven of the Customs
 
 522 Oftlic Stamp Duties. [Pt. i. Bk. vii. 
 
 and Inland Eevenue Act, 1881, exceeds ten thousand pounds, 
 be shall together with such affidavit or inventory deliver a 
 statement of the value of such estate and effects. The state- 
 ment shall be transmitted with the affidavit or inventory to 
 the Commissioners of Inland Eevenue by the proper oflBcer of 
 the High Court of Justice in England or Ireland, or of the 
 proper Court in Scotland, and the certificate required under 
 section thirty of the said Act shall extend to, and include the 
 fact of the delivery of the statement. 
 
 (2.) " Where the value of the personal or moveable property 
 included in an account delivered according to section thirty- 
 eight of the Customs and Inland Eevenue Act, 1881, on or 
 after the first day of June one thousand eight hundi'ed and 
 eighty-uiue, exceeds ten thousand pounds, the person deliver- 
 ing the account shall also deliver together therewith a state- 
 ment of the value of such property. 
 
 (3.) " Where pursuant to the provisions of section thirty- 
 two of the Customs and Inland Eevenue Act, 1881, a further 
 affidavit is required to be delivered by any person, and Avhere 
 any person intromitting with, or entering upon the possession 
 or management of, any personal or moveable estate or effects 
 in Scotland of any person dying, is required by law to 
 exhibit an additional inventory, the follo^^dng provisions shall 
 
 apply :— 
 
 {(I.) "If the value of the estate and effects in respect 
 whereof duty was charged on the former affidavit 
 or inventory under section twenty-seven of the 
 Customs and Inland Eevenue Act, 1881, exceeded 
 ten thousand pounds, the person delivering the 
 further affidavit or exhibiting the additional inven- 
 tory shall deliver together therewith a statement 
 of the value of the estate and effects included 
 therein or of the increase of value of the estate and 
 effects included in the former affidavit or inventory, 
 as the case may be : 
 
 {]).) " If the value of the estate and efiects in respect 
 whereof duty has Deen charged under the Customs
 
 rt. I. Bk. VII.] On Probate and Letters of Administratioii. 526 
 
 and Inland Revenue Act, 1881, did not exceed ten 
 thousand pounds, and such value together with 
 the value of the estate and effects included in the 
 further affidavit or additional inventory delivered or 
 exhihited or the increased value, as the case may 
 be, exceeds ten thousand pounds, such person 
 delivering the further affidavit or exhibiting the 
 additional inventory shall deliver together there- 
 with a statement of the value of the estate and 
 effects included therein, and in the former affidavit 
 or inventory, or of the value as increased of the 
 estate and effects included in the former affidavit 
 or inventory, as the case may be. 
 (4.) " There shall be charged and paid on every statement 
 to be delivered in conformity with this section a duty of 
 one pound for every full sum of one hundred pounds, and 
 for any fraction of one hundred pounds over any multiple 
 of one hundred pounds of the value of the estate and 
 effects or of the personal or moveable property, as the case 
 may be. 
 
 (5.) " The duties respectively imposed by this section are to 
 be in addition to the stamp duties charged on the affidavit 
 required from persons applying for probate or letters of ad- 
 ministration in England or Ireland or on the inventory exhi- 
 bited and recorded in Scotland, and in addition to the stamp 
 duties charged on such accounts of personal and moveable 
 property as are specified in section 38 of the Customs and 
 Inland Revenue Act, 1881, as amended by this Act, but are 
 not to be deemed ' probate duties ' within the meaning as- 
 signed to that expression by section 21 of the Local Govern- 
 ment Act, 1888, or by section 5 of the Probate Duties 
 (Scotland and Ireland) Act, 1888. 
 
 (6.) " The provisions contained in section 31 of the 
 Customs and Inland Revenue Act, 1881, for the return of 
 stamp duty overpaid shall apply to the return of duty over- 
 paid on any statement delivered under this section, and in 
 Scotland a return of duty overpaid on any statement so
 
 524 
 
 Of the Stwnp Duties. [Pt. i. Bk. vn. 
 
 Duration of 
 charge of 
 estate duty. 
 
 Double duty 
 or interest 
 payable in 
 case of 
 default. 
 
 The duties to 
 be stamp 
 duties. 
 
 delivered shall bo made in like manner as a return is now 
 made of stamp duty overpaid on an additional inventory. 
 
 (7.) " Where a further affidavit or additional inventory is 
 delivered or exhibited of any estate or effects of a deceased 
 person after a former affidavit or inventory of the estate and 
 effects of the same person has been delivered or exhibited and 
 recorded prior to the 1st of June, 1889, it shall not be neces- 
 sary to deliver any statement of the value of the estate and 
 effects of such person under this section. 
 
 Sect. 7. " The duties hereinbefore imposed by this part of 
 this Act shall not be payable in respect of the value of the estate 
 and effects of any person dying on or after the first day of 
 June one thousand eight hundred and ninety-six, or of the 
 value of any personal or moveable property included in an 
 account by relation to the death of any person so dying, or in 
 respect of the value of any succession upon the death of any 
 person so dying, and statements of such values shall not be 
 i-equired. 
 
 Sect. 8. — (1.) " If any person who ought to deliver a state- 
 ment as required by this part of this Act shall neglect to do so, 
 he shall be liable to pay to Her Majesty double the amount of 
 duty chargeable, and the same shall be a debt due from him 
 to the Crown, and be recoverable by any of the ways or means 
 now in force for the recovery of probate, legacy, or succession 
 duties. 
 
 (2.) " In any case in which any duty hereinbefore imposed 
 by this part of this Act shall be in arrear, the person by 
 whom the arrears of duty may be payable shall be liable to 
 pay interest thereon at the rate of four pounds per centum 
 per annum, and such interest shall be recoverable by the 
 Commissioners of Inland Revenue in the same manner as the 
 arrears of duty and as part thereof: Provided always, that 
 the acceptance or recovery by the said commissioners of arrears 
 of duty, with interest thereon as aforesaid, shall be an absolute 
 waiver of the penalties (if any) which may have been incurred. 
 
 Sect. 9. — (1.) "The duties hereinbefore imposed by this part 
 of this Act shall be stamp duties, and shall be under the care
 
 Pt. I. Bk. VII.] Oil Probate, mid Letters of Administration. 525 
 
 and management of the Commissioners of Inland Kevenue, 
 who by themselves and their officers shall have the same 
 powers and authorities for the collection, recovery, and 
 management thereof as are vested in them for the collection, 
 recovery, and management of any stamp duties, and shall 
 have all other powers and authorities requisite for carrying 
 this part of this Act into execution. 
 
 (2.) " The statements required to be delivered under this 
 part of this Act shall be in such form as may be prescribed by 
 the Commissioners of Inland Revenue, who shall provide forms 
 accordingly, and the duty on the statement shall be denoted 
 in such manner as the commissioners may think proper." 
 
 It will be observed that by section 26 of 44 Vict. c. 12 
 above set out, the provisions then in force at the time of the 
 passing of that Act with regard to the duties on probate or 
 letters of administration, so far as the same are consistent 
 with the provisions of that Act, are to be deemed applicable 
 to the duties imposed on affidavits in substitution for the 
 duties on probates or letters of administration. It has 
 accordingly been thought convenient to print the former 
 provisions, giving references when necessary to the new Act. 
 
 By stat. 27 & 28 Vict. c. 56, s. 4, " The said stamp duties 27 & 28 Vict. 
 [on probates and letters of administration] shall be charged putfeVlin^* 
 and paid in respect of the value of any ship or any share of a ^'"l^^- 
 ship belonging to any deceased person which shall be regis- 
 tered at any port in the United Kingdom, notwithstanding 
 such ship at the time of the death of the testator or intestate 
 may have been at sea or elsewhere out of the United Kingdom ; 
 and for the purpose of charging the said duties, such ship shall 
 be deemed to have been at the time aforesaid in the port at 
 which she may be registered. 
 
 Sect. 5. "No stamp duty shall be chargeable on any such pro- Sect. C 
 bate, letters of administration or inventory as aforesaid in any exempted fmm 
 case where the whole estate and effects of the deceased person ^*'f"'i' "'"^^^ 
 
 ^ where the 
 
 dying after the passing of this Act (exclusive of what he shall effects do not 
 have been possessed of or entitled to as a trustee for any other 
 person or person, and not beneficially) shall be sworn not to
 
 526 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 55 Geo. III. 
 c. 184. 
 
 Exemptions of 
 "Wills and ;id- 
 ministrations 
 of seamen and 
 soldiers slain 
 in battle. 
 
 Sect. 37. 
 Penalty for not 
 proving Wills, 
 or taking 
 letters of ad- 
 ministration, 
 within a given 
 time, 100/., 
 and lOZ. per 
 cent, on the 
 duty. 
 
 Sect. 38. 
 Ecclesiastical 
 Courts not to 
 grant probates 
 or letters of 
 administration 
 without affi- 
 davit of the 
 value of 
 effects. 
 
 exceed, and shall not actually exceed, in value the sum of one 
 hundred pounds " {z). 
 
 Probate of Will, and letters of administration 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, 
 are exempt from all stamp duties. 
 
 By the 37th section, it is enacted, " That from and after 
 the thirty-first day of August, 1815, if any person shall take 
 possession of, and in any manner administer any part of the 
 personal estate and effects of any person deceased, without 
 obtaining probate of the Will or letters of administration of 
 the estate and effects of the deceased, within six calendar 
 months after his or her decease, or within two calendar 
 months after the termination of any suit or dispute respect- 
 ing the Will or the right to letters of administration, if there 
 shall be any such, which shall not be ended within four 
 calendar months after the death of the deceased; every person 
 so offending shall forfeit the sum of one hundred pounds, and 
 also a further sum, at and after the rate of ten pounds per 
 centum on the amount of the stamp duty payable on the pro- 
 bate of the Will or letters of administration of the estate and 
 effects of the deceased {a). 
 
 Sect. 38. " From and after the expiration of three calendar 
 months from the passing of this Act (11th July, 1815), no 
 Ecclesiastical Court or person shall grant probate of the 
 Will or letters of administration of the estate and effects of 
 any person deceased, without first requiring and receiving 
 from the person or persons applying for the probate or 
 letters of administration, or from some other competent 
 person or persons, an affidavit, or solemn affirmation in the 
 
 {z) And since the duties in force 
 on the passing of the Customs and 
 Inland Revenue Act, 1880 (43 
 Vict. c. 14), were by that Act 
 superseded, and since the Customs 
 and Inland Eevenue Act, 1881, 
 contains no provision lor charging 
 estates of lOOL and under, all 
 
 estates of or under the value of 
 lOOZ. are now exempt from duty 
 whatever may be the date of the 
 death of the testator or intestate, 
 as the case may be. 
 
 (a) See also stat. 5 &; 6 Vict, 
 c. 82, s. 35, as to Ireland.
 
 Pt. I. Bk, VII.] Oji Prohate and Letters of Admimstration. 527 
 case of Quakers, that the estate and effects of the deceased, ^^ Creo. III. 
 
 c. 184. 
 for or in respect of which the probate or letters of adminis- 
 tration is or are to be granted, exclusive of what the deceased 
 shall have been possessed of or entitled to as a trustee for 
 any other person or persons, and not beneficially, but includ- 
 ing the leasehold estates for years of the deceased, whether 
 absolute or determinable on lives, if any, and without deduct- 
 ing any thing on account of the debts due and owing from 
 the deceased, are under the value of a certain sum to be 
 therein specified, to the best of the deponent's or affirmant's 
 knowledge, information, and belief, in order that the proper 
 and full stamp duty may be paid on such probate or letters of 
 administration ; which affidavit or affirmation shall be made 
 before the surrogate or other person who shall administer the 
 usual oath for the due administration of the estate and effects 
 of the deceased {h). 
 
 Sect. 39. " Every such affidavit or affirmation shall bo Sect. 39. ' 
 exempt from stamp duty, and shall be transmitted to the ^^ frerof *° 
 said commissioners of stamps, together with the copy of the ^t*™? ^^^^^ 
 
 ^ ' '=' ^^ and to be 
 
 Will, or extract or account of the letters of administration transmitted to 
 
 to which it shall relate, by the registrar or other officer of ^f stamps. 
 
 the Court, whose duty it shall be to transmit copies of Wills, Penalty for 
 
 and extracts or accounts of letters of administration to the 
 
 said commissioners, for the better collection of the duties on 
 
 legacies and successions to personal estate upon intestacy; 
 
 and if any registrar or other officer whose duty it shall be, 
 
 shall neglect to transmit such affidavit or affirmation to the 
 
 said commissioners of stamps as hereby directed, every person 
 
 so oftending shall forfeit the sum of fifty pounds " (c). 
 
 By section 40, it is provided, " That from and after the gect. 40. 
 passing of this Act (11th July, 1815), where any person, on fhTcSrofToo 
 applying for the probate of a Will or letters of administra- high a stamp 
 
 '^luty being 
 
 tion, shall have estimated the estate and effects of the paid on pro- 
 
 , „. , . n bates, &c. 
 
 ih) As to form oi amdavit, see formerly payaljic on grants of jjro- 
 
 43 Vict. c. 14, s. 10, and 44 Vict. bate or letters of administration 
 c. 12, s. 29. is now payable on the attidavit of 
 
 (c) It will be observed that by value. 
 
 44 Vict. c. 12, s. 27, the duty
 
 528 
 
 Of the Stamp Duties. [Pt. i. Bk. vil. 
 
 55 Geo. III. 
 . 184. 
 
 Sect. 41. 
 Provision for 
 the case of too 
 little stamp 
 duty being 
 paid on pro- 
 bates, &c. 
 
 deceased to be of greater value tluiu the same shall have 
 afterwards proved to be, and shall iu consequence have paid 
 too high a stamp duty thereon, if such person shall produce 
 the probate or letters of administration to the said commis- 
 sioners of stamps within six calendar months after the true 
 value of the estate and effects shall have been ascertained, 
 and it shall be discovered that too high a duty was first paid 
 on the probate or letters of administration, and shall deliver 
 to them a particular inventory and account, and valuation of 
 the estate and effects of the deceased, verified by an affidavit, 
 or solemn affirmation in the case of Quakers ; and if it 
 should thereupon satisfactorily appear to the said commis- 
 sioners that a greater stamp duty was paid on the probate or 
 letters of administration than the law required, it shall be 
 lawful for the said commissioners to cancel and expunge the 
 stamp on the probate or letters of administration, and to sub- 
 stitute another stamp for denoting the duty which ought to 
 have been paid thereon, and to make an allowance for the 
 difference between them, as in the cases of spoiled stamps, 
 or if the difierence be considerable, to repay the same in 
 money, at the discretion of the said commissioners {d). 
 
 Sect. 41. "From and after the passing of this Act (11th 
 July, 1815), where any person, on apjjlying for the probate 
 of a Will or letters of administration, shall have estimated 
 the estate and effects of the deceased to be of less value than 
 the same shall have afterwards proved to be, and shall in 
 consequence have paid too little stamp duty thereon, it shall 
 be lawful for the said commissioners of stamps, on delivery 
 to them of an affidavit or solemn affirmation of the value of 
 the estate and effects of the deceased, to cause the probate 
 or letters of administration to be duly stamped, on payment 
 of the full duty which ought to have been originally paid 
 thereon in respect of such value, and of the further sum or 
 penalty payable by law for stamping deeds after the execu- 
 tion thereof, without any deduction or allowance of the 
 
 ((/) Since 1 June, ISSl, these applications will be governed bv 44 
 Yict. c. 12, s. 31.
 
 Pt. I. Bk. VII.] On Probate and Letters of Admlnistixition. 529 
 
 stamp duty originally paid on such probate or letters of -''^ Gfeo. III. 
 administration : Provided always, That if the application 
 shall be made within six calendar months after the true 
 value of the estate and effects shall be ascertained, and it 
 shall be discovered that too little duty w^as at first paid on 
 the probate or letters of administration, and if it shall appear 
 by affidavit or solemn affirmation, to the satisfaction of the 
 said commissioners, that such duty was paid in consequence 
 of any mistake or misapprehension, or of its not being knovv'n 
 at the time that some particular part of the estate and effects 
 belonged to the deceased, and without any intention of fraud, 
 or to delay the payment of the full and proper duty, then it 
 shall be lawful for the said commissioners to remit the before- 
 mentioned penalty, and to cause the probate or letters of 
 administration to be duly stamped, on payment only of the 
 sum which shall be wanting to make up the duty which 
 ought to have been at first paid thereon (e). 
 
 Sect. 42. " Provided always, That in cases of letters of Sect. 42. 
 administration, on which too little stamp duty shall have to give the 
 been paid at first, the said commissioners of stamps shall foXe'^Eccksf^ 
 not cause the same to be duly stamped in the manner afore- astical Court 
 
 .. •11 T • • before admin- 
 
 said, until the administrator shall have given such security istration is 
 to the Ecclesiastical Court or ordinary by whom the letters '^"'^ stamped. 
 of administration shall have been granted, as ought by law 
 to have been given on the granting thereof, in case the full 
 value of the estate and effects of the deceased had been then 
 ascertained, and also that the said commissioners of stamps 
 shall yearly or oftener transmit an account of the probates 
 and letters of administration, upon which the stamps shall 
 have been rectified in pursuance of this Act, to the several 
 Ecclesiastical Courts by which the same shall have been 
 granted, together with the value of the estate and effects of 
 the deceased, upon which such rectifications shall have pro- 
 ceeded. 
 
 (e) Since I June, 1881, these Vict. c. 12, s. 32. Aa to i)enalty, 
 applications are governet' by 44 see 44 Vict. c. 12, s. 40. 
 W.E. — VOL. I. M M
 
 )30 
 
 55 Geo. in. 
 c. ISi. 
 
 Sect. 43. 
 Penalty on 
 executors, kc, 
 not paying the 
 full duty on 
 probates, kc, 
 in a given time 
 after discovery 
 of too little 
 paid at first, 
 100/., and tea 
 per cent, on 
 the dutv 
 wanting. 
 
 Sect. 44. 
 Ecclesiastical 
 Courts not to 
 take sur- 
 renders of 
 probates, &c., 
 on the ground 
 only of wrong 
 duty paid 
 thereon. 
 
 Sect. 45. 
 Commis- 
 sioners of 
 stamps may 
 give credit 
 for the duty 
 on probates 
 and letters of 
 administra- 
 tion in certain 
 cases. 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 Sect. 43. " Where too little duty shall have been paid on 
 any probate or letters of administration, in consequence of 
 any mistake or misapprehension, or of its not being known 
 at the time that some particular part of the estate and effects 
 belonged to the deceased, if any executor or administrator 
 acting under such probate or letters of administration shall 
 not., within six calendar months after the passing of this Act 
 (11th July, 1815), or after the discovery of the mistake or 
 misapprehension, or of any estate or effects not known at the 
 time to have belonged to the deceased, apply to the said 
 commissioners of stamps, and pay what shall be wanting 
 to make up the duty which ought to have been paid at 
 first on such probate or letters of administration, he or she 
 shall forfeit the sum of one hundred pounds, and also a 
 further sum, at and after the rate of ten pounds .per centum 
 on the amount of the sum wanting to make up the proper 
 duty (/). 
 
 Sect. 44. " From and after the expiration of three calendar 
 months from the passing of this Act (11th July, 1815), it 
 shall not be lawful for any Ecclesiastical Court or person to 
 call in and revoke, or to accept the surrender of any probate 
 or letters of administration, on the ground only of too high 
 or too low a stamp duty having been paid thereon, as here- 
 tofore hath been practised : and if any Ecclesiastical Court 
 or person shall so do, the commissioners of stamps shall not 
 make any allowance whatever for the stamp duty on the 
 probate or letters of administration which shall be so 
 annulled. 
 
 Sect. 45. "And whereas it has happened in the case of 
 letters of administration on which the jDroper stamp dutj" 
 hath not been paid at first, that certain debts, chattels real, 
 or other effects due or belonging to the deceased, have been 
 found to be of such great value, that the administrator hath 
 not been possessed of money sufficient either of his own or 
 of the deceased to pay the requisite stamp duty, in order to 
 
 (/) See Lacy I'. Rhys, 4 Best & is now provided for by 44 Vict. 
 S. 873, fosf, p. 539. The penalty c. 12, s. 40.
 
 Pt. I. Bk. VII.] On Probate and Letters of Administration. 531 
 render such letters of administration available for the recovery ^5 Geo. ill. 
 
 c. 184. 
 thereof by law : And whereas the like may occur again, and it 
 
 may also happen that executors or persons entitled to take 
 out letters of administration may, before obtaining probate of 
 the Will or letters of administration of the estate and effects 
 of the deceased, find some considerable part or parts of the 
 estate and effects of the deceased so circumstanced as not to 
 be immediately got possession of, and may not have money 
 sufficient either of their own or of the deceased to pay the 
 stamp duty on the probate or letters of administration which 
 it shall be necessary to obtain : " it is enacted, " That from 
 and after the passing of this Act (11th July, 1815), it shall 
 be lawful for the said commissioners of stamps, on satisfactory 
 proof of the facts by affidavit or solemn affirmation, in any 
 such case as aforesaid which may appear to them to require 
 relief, to cause the probate or letters of administration to be 
 duly stamped for denoting the duty payable or which ought 
 originally to have been paid thereon, and to give credit for 
 the duty, either upon payment of the before-mentioned penalty, 
 or without, in cases of probates or letters of administration 
 already obtained, and upon which too little duty shall have 
 been paid, and either with or without allowance of the stamp 
 duty already paid thereon, as the case may require, under the 
 provisions of this Act ; provided in all such cases of credit 
 that security be first given by the executors or administrators, 
 together with two or more sufficient sureties to be approved 
 of by the said commissioners, by a bond to his Majesty, his 
 heirs or successors, in double the amount of the duty, for the 
 due and full payment of the sum for which credit shall be 
 given, within six calendar months, or any less period, and of 
 the interest for the same, at the rate of ten pounds j)er centum 
 per annum, from the expiration of such period until payment 
 thereof, in case of any default of payment at the time appointed : 
 and such probate or letters of administration, being duly 
 stamped in the manner aforesaid, shall be as valid and avail- 
 able as if the proper duty had been at first paid thereon, and 
 the same had been stamped accordingly. 
 
 M M 2
 
 532 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 55 Geo. III. 
 c. 184. 
 
 Sect. 46. 
 Comis- 
 sioners may 
 extend tl:e 
 credit, if 
 necessar}-. 
 
 Sect. 47. 
 Probate or 
 letters of ad- 
 ministration 
 stamped on 
 credit, to be 
 deposited with 
 the commis- 
 sioners. 
 
 Sect. 48. 
 Duty for ■which 
 credit shall be 
 given to be a 
 debt to the 
 Crown. 
 
 Sect. 49. 
 Provisions for 
 the case of 
 letters of ad- 
 ministration 
 de bonis non, 
 taken out be- 
 fore payment 
 of the duty for 
 which credit 
 shall be given. 
 
 Sect. 46. "Provided always, That if at the expiration of 
 the time to be allowed for the payment of the duty on such 
 probate or letters of administration, it shall appear to the 
 satisfaction of the said commissioners, that the executor or 
 administrator to whom such credit shall be given as aforesaid 
 shall not have recovered effects of the deceased to an amount 
 sufficient for the payment of the duty, it shall be lawful for 
 the said commissioners to give such further time for the paj-- 
 ment thereof, and upon such terms and conditions as they 
 shall think expedient. 
 
 Sect. 47. " Provided also, That the probate or letters of 
 administration so to be stamped on credit as aforesaid shall 
 be deposited with the said commissioners of stamps, and 
 shall not be delivered up to the executor or administrator 
 until payment of the duty, together with such interest as 
 aforesaid, if any shall become due : but the same shall 
 nevertheless be produced in evidence by some officer of the 
 commissioners of stamps, at the expense of the executor or 
 administrator, as occasion shall require. 
 
 Sect. 48. " The duty for which credit shall be given as 
 aforesaid, shall be a debt to his Majesty, his heirs or succes- 
 sors, from the personal estate of the deceased, and shall be 
 paid in preference to and before any other debt whatsoever due 
 from the same estate ; and if any executor or administrator of 
 the estate of the deceased shall pay any other debt in prefer- 
 ence thereto, he or she shall not only be charged with and be 
 liable to pay the duty out of his or her own estate, but shall 
 also forfeit the sum of five hundred pounds. 
 
 Sect. 49. " If before payment of the duty for which credit 
 shall be given in any such case as aforesaid, it shall become 
 necessary to take out letters of administration de bonis non 
 of the deceased, it shall also be lawful for the said commis- 
 sioners to cause such letters of administration de bonis non to 
 be duly stamped with the particular stamp provided to be used 
 on letters of administration of that kind, for denoting the 
 payment of the duty in respect of the effects of the deceased, 
 on some prior probate or letters of administration of the same
 
 Pr. I. Bk. VII.] On Probate and Letters of Administration. 533 
 
 effects iu such and the same manner as if the duty had heen ^^ ^e°- ^^I- 
 
 ... c. 184. 
 
 actually paid, upon having the letters of administration de 
 
 bonis non deposited with the said commissioners, and upon 
 
 having such further security for the payment of the duty as 
 
 they shall think expedient ; and such letters of administration 
 
 shall he as valid and available as if the duty for which credit 
 
 shall be given has been paid." 
 
 It has been decided that this section authorizes the com- 
 missioners of stamps to stamp letters of administration de 
 bonis non on security given, and without payment of the duty, 
 as well in cases where too low a duty has been paid on the 
 original letters of administration, as when such letters of 
 administration have been originally stamped on credit (r/). 
 
 By sect. 50, it is further enacted, in regard to probate of Sect. 50. 
 Wills and letters of administration, " That where any part of conceiniDg 
 the personal estate wdiich the deceased was possessed of or affidavits by 
 
 ■•• ■•■ executors, &c., 
 
 entitled to shall be alleged to have been trust property, if the residing out 
 
 . (¥» T • ^^ England, 
 
 person or persons who shall be required to make any affidavit relating to 
 or affirmation relating thereto, conformably to the provisions p^g"tv^™ 
 of the said Act of the forty-eighth year of his Majesty's 
 reign (h), shall reside out of England, such affidavit or 
 affirmation shall and may be made before any person duly 
 commissioned to take affidavits by the Court of Session or 
 Court of Exchequer in Scotland, or before one of his Majesty's 
 Justices of the Peace in Scotland, or before a Master in 
 Chancery, Ordinary or Extraordinary in Ireland, or before 
 any Judge or civil Magistrate of any other country or place 
 where the party or parties shall happen to reside ; and every 
 such affidavit or affirmation shall be as effectual as if the 
 same had been made before a Master in Chancery in England, 
 pursuant to the directions of the said last-mentioned Act." 
 
 The statutes 55 Geo. III. c. 184, s. 51 ; 5 & 6 Vict. c. 79, 
 s. 23 ; and 24 & 25 Vict. c. 92, s. 3, relate to the return of 
 duty to be made in respect of debts. Formerly the duty was 
 regulated by the gross amount or value of the estate, and the 
 
 (y) Doe I'. Wood, 2 l!;ini. .^ Aid. (A) See po.-7, pp. :):]4, riH"), ,530. 
 
 724.
 
 534 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 55 Geo. III. 
 c. 184, s. 8. 
 Powers and 
 
 provisions of 
 former Acts to 
 extend to this 
 Act. 
 
 48 Geo. III. 
 c. 149, s. 35. 
 Probates of 
 Wills and let- 
 ters of admin- 
 istration 
 valid as to 
 trust property, 
 although the 
 value thereof 
 be not covered 
 by the stamp 
 duty. 
 
 deduction in respect of debts could only be obtained in the 
 shape of a return of the duty. Under the existing Acts 
 (Customs and Inland Revenue Acts, 1880 and 1881), the stamp 
 need only be sufficient to cover the net value remaining after 
 deducting the debts and funeral expenses of the deceased, so 
 that there is no longer any occasion for a return of duty. 
 
 Besides these enactments, it is provided, by statute 55 
 Geo. III. c. 184, s. 8, "That all the powers, provisions, 
 clauses, regulations and directions, fines, forfeitures, pains 
 and penalties, contained in and imposed by the several Acts 
 of Parliament relating to the duties hereby repealed, and the 
 several Acts of Parliament relating to any prior duties of the 
 same kind or description, shall be of full force and effect with 
 respect to the duties hereby granted, and to the vellum, 
 parchment and paper, instruments, matters and things charged 
 or chargeable therewith, as far as the same are or shall be 
 applicable, in all cases not hereby expressly provided for, and 
 shall be observed, applied, enforced and put in execution, for 
 the raising, levying, collecting, and securing of the said duties 
 hereby granted and otherwise relating thereto, so far as the 
 same shall not be superseded by, and shall be consistent with, 
 the express provision of this Act, as fully and effectually to 
 all intents and purposes as if the same had been herein 
 repeated and specially enacted with reference to the said 
 duties hereby granted" {lih). 
 
 It is therefore necessary to recur to some of the provisions 
 of the earlier statutes. 
 
 By Stat. 48 Geo. III. c. 149, s. 35, it is enacted, that " The 
 probate of the Will of any person deceased, or the letters of 
 administration of the eifects of any person deceased, &c., &c., 
 shall be deemed and taken to be valid and available by the 
 executors or administrators of the deceased, for recovering, 
 transferring, or assigning any debt or debts, or other per- 
 sonal estate or effects, whereof or whereto the deceased was 
 possessed or entitled, either Avholly or partially, as a trustee, 
 
 (M) This section has been re- the provisions of former Acts saved 
 pealed by the Statute Law Re- liy it nevertheless continxie in 
 vision Act, 1870, but it seems that- force.
 
 Pt. I, Bk, VII.] On Prohate and Letters of Administration. 5r35 
 
 notwithstanding the amount or value of such debt or debts, 
 or other personal estate or effects, or the amount or value of 
 so much thereof, or such interest therein, as was trust 
 property in the deceased (as the case may be) shall not be 
 included in the amount or value of the estate in respect of 
 which the stamp duty was paid on such probate or letters of 
 administration." 
 
 And by s. 36 of the same statute, it is provided, that where 48 Geo. ill. 
 the executors or administrators of any person deceased shall ' > s- • 
 
 Where execu- 
 
 be desirous of transferring, or of receiving the dividends of tors, &c., al- 
 any share standing in the name of the deceased, of and in any p^perty waT 
 government or parliamentary stocks or funds, transferable at jested m the 
 
 o 1 ./ deceased, as a 
 
 the Bank of England, or of and in the stock and funds of the trustee, a spe- 
 Governor and Company of the Bank of England, or of and in thereof may be 
 the stock and funds of any other company, corporation or gg^e"^nn.'^ ^^^ 
 
 society whatever, passing by transfer in the books of such stances spe- 
 cified. 
 company, corporation, &c., under any such probate or letters 
 
 of administration, and shall allege that the deceased was 
 possessed thereof, or entitled thereto, either wholly or par- 
 tially, as a trustee ; the bank and any other corporation, &c., or 
 their officers may, for their indemnity, require an affidavit (?) 
 or affirmation of the fact, as in s. 37 is mentioned, if it shall 
 not otherwise appear, and thereupon may permit such execu- 
 tors or administrators to transfer the stock or fund in 
 question, and receive the dividends thereof, without regard to 
 the stamp duty on the probate or letters. And where the 
 executors or administrators of any person deceased shall have 
 occasion to recover any debt or other personal estate due to 
 the deceased, and shall allege that he was possessed thereof, 
 or entitled thereto, either wholly or partially, as a trustee ; 
 the person liable to pay such debt, may require a like affidavit 
 as aforesaid, and thereupon make over such debt or effects to 
 such executors, &c., regardless of such stamp duty as afore- 
 said ; and where the executors, &c., of any person deceased 
 shall have occasion to assign or transfer any debts due to the 
 
 (r) See ante, p. 533.
 
 ^36 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 deceased, or any chattels real, or other personal estate, whereof 
 or whereto the deceased was possessed or entitled, and shall 
 allege that the same were due to, or vested in him, either 
 wholly or partially, as a trustee, the person to whom or for 
 whose use such debts, chattels, real, &c., shall be proposed 
 to be assigned, may require such affidavit as aforesaid, and 
 thereupon accept such assignment or transfer, regardless of 
 such stamp duty as aforesaid. 
 S- 37. And by sect. 37 of the same statute, upon any requisition 
 
 Particulars to . 
 
 be stated in as in sect. 36, such executors or administrators, or some 
 by executors person to whom the fact shall be known, shall make a special 
 
 &c., respecting affidavit or affirmation of the facts, stating the property in 
 
 trust propel ty. _ . . 
 
 question, and that the deceased had not any beneficial interest 
 in the same, or no other than shall be therein set forth, but 
 w^as possessed of or entitled thereto, wholly or in part, in 
 trust for some other person, whose name or other description 
 shall be specified, or for such purposes as shall be therein 
 specified, and that the beneficial interest of the deceased, if 
 any, in the property in question, does not exceed a certain 
 value, also therein specified, according to the best estimate 
 that can be made thereof, if reversionary or contingent : and 
 that the value of the estate for which the stamp duty was 
 paid on the probate or letters is sufficient to cover all such 
 beneficial interest, as well as the rest of such personal estate 
 of the deceased, and for which such probate or letters have 
 been granted, as far as the same has come to the knowledge 
 of such executors or administrators ; and where such affidavit 
 or affirmation is made by any other person than the executors 
 or administrators of the deceased, they also shall make an 
 affidavit or affirmation that the same is true, to the best of 
 their knowledge, and that the property in question is intended 
 to be applied accordingly: which affidavits or affirmations 
 shall be sworn before a Master in Chancery, and shall be 
 delivered to the party requiring the same, and be sufficient 
 indemnity to them ; and if any person making such affidavit 
 or affirmation shall knowingly and wilfully make a false oath 
 or affirmation of the matters therein contained, such persons
 
 Pt. I, Bk. VII.] On Probate mid Letters of Administration, 537 
 
 shall, ou conviction, be liable to the pains inflicted on persons 
 
 guilty of perjury. 
 
 By stat. 39 & 40 Geo. III. c. 72, s. 16, Where due proof 39 & 40 Geo. 
 
 on oath is made to the commissioners of stamps, (which oath g jg " ' 
 
 one of such commissioners may administer) that any Will Commis- 
 
 •^ / ^ sioners of 
 
 has, through inadvertence, been proved, or that any letters stamps may 
 
 „ T . . . T , cancel useless 
 
 oi admmistration have been taken out on the same property, probates of 
 
 in more than one Ecclesiastical or Prerogative Court, or more ^^^.^ of^adm^n- 
 
 than once in any such Ecclesiastical Court, and by reason istration, and 
 
 •^ ' -^ allow such 
 
 thereof more than one stamp duty has been paid, such com- stamps. 
 
 missioners may, on delivery to them of the useless probate or 
 
 letters, to be cancelled, and on production of the valid probate 
 
 or letters granted on any such Will or property, cancel the 
 
 useless probate, &c., and stamp any vellum, &c., with stamps 
 
 of the like denomination and value as those cancelled, without 
 
 taking any money for the same. 
 
 By stat. 41 Geo. III. c. 86, s. 3, after reciting that " it is 41 Geo. HI. 
 
 expedient that the duties payable in respect of probates or pi-event the ° 
 
 letters of administration should not be paid more than once <^louble pay- 
 ment of duties, 
 
 on the same estate ; " it is enacted, " that it shall be lawful the stamp 
 
 n ,^ • ^ •• Pi 111 11 Office shall 
 
 tor the said commissioners 01 stamps, and they are hereby jMovidea 
 
 authorized and required to provide a stamp or mark distin- stamp for 
 
 ^ ^ *• marking 
 
 guishable from all other stamps or marks used in relation to probates of 
 
 any stamp duties, for the purpose of stamping or marking of administra- 
 
 any piece of vellum, parchment or paper, whereon any probate to°a'n'^\state 
 
 of any Will or letters of administration shall be engrossed, i" respect 
 
 whereof any 
 
 printed, or written, in relation to any estate in respect whereof probates, &c., 
 
 any probate or letters of administration shall have been before been before 
 
 taken out, and the full amount of the duties payable thereon, If^^^ out and 
 
 '■ -' ' the duties then 
 
 by any Act or Acts of Parliament then in force, according to payable dis- 
 the full value of such estate, shall have been duly paid and 
 discharged ; and in every case where any probate or probates, 
 or letters of administration, shall have been taken out, duly 
 stamped according to the full value of the estate in respect 
 whereof the same shall have been granted, then, and in such 
 case any further or other probate or letters of administration 
 as aforesaid, which shall be at any time thereafter applied for
 
 538 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 Probate, &c., 
 not properly 
 stamped, can- 
 not be given 
 in evidence : 
 
 the stamp 
 must cover the 
 claim on 
 which the 
 action is 
 brought. 
 
 or in respect of such estate, shall and may he issued and 
 granted upon any piece of vellum, parchment, or paper, 
 stamped or marked with the stamp or mark provided by 
 the said commissioners by virtue of this Act for such other 
 probates or letters of administration as aforesaid ; and every 
 such other probate or letters of administration, which shall 
 be duly stamped or marked with such stamp or mark as last 
 aforesaid, shall be as available in the law, and of the like 
 force and effect in all respects whatever, as if the vellum, 
 parchment or paper whereon the same shall be engrossed, 
 printed, or written, had been duly stamped with the stamp or 
 mark, denoting the full amount of the duties payable in 
 respect of the probate or letters of administration taken out 
 on the full value of such estate ; anything in any Act or Acts, 
 or this Act, before contained, to the contrary thereof in any- 
 wise notwithstanding" (A). The statute 28 & 29 Vict. c. 
 104, ss. 57 and 58, provided for summary proceedings for 
 payment of probate duties. 
 
 A very important regulation, as to the consequences of not 
 obtaining the requisite stamp, which was contained in the 
 former Stamp Acts, and re-enacted by section 8 of the stat. 
 55 Geo. III. c. 184, and all subsequent Stamp Acts, is that no 
 instrument not properly stamped shall be given in evidence (/). 
 Hence, where an executor or administrator brings an action, 
 in which it is necessary for him, at the trial, to prove his 
 representative character, if his case shows that he sues for a 
 greater value than is covered by the stamp of his probate or 
 
 (/.) See also stat. 5 & 6 Vict, 
 c. 82, s. 36. 
 
 {I) Hunt V. Stevens, 3 Taunt. 
 116. The old statute of 9 & 10 
 W. III. c. 25, s. 19, first contains 
 the clause enacting this prohibi- 
 tion, and it has been continued 
 through all the succeeding acts : 
 76. The first Act relating to 
 Probate Duty is the stat. 5 "W. & 
 M. c. 21, s. 3. Stat. 44 Vict. c. 12, 
 s. 30, substitutes for the stamp or 
 
 a grant a certificate under the 
 hand of the proper officer of the 
 High Court showing that the 
 aftidavit has been delivered duly- 
 stamped and stating the gross 
 value of the estate thereby shown, 
 and the grant bearing such certifi- 
 cate shall for all purposes be 
 deemed to have been duly stamped 
 in respect of such gross value 
 (s. 26(3)).
 
 defect of 
 stamps. 
 
 Pt, I. Bk. VII.] Oil: Frohate and Letters of Administration. 539 
 
 letters of administration, be cannot recover ; for the instru- 
 ment, not being properly stamped, cannot be given in 
 evidence ; and be is tberefore excluded from tbe only means 
 of sbowing tbe fact of bis being executor or adminis- 
 trator (ill). Nor will it make any difference, tbat be is suing 
 for a doubtful claim (/^). And it was formerly beld tbat in 
 a suit in equity a party suing as executor or administrator 
 could not sustain proceedings to recover a larger sum tban 
 tbat upon wbicb tbe probate duty was calculated (o). 
 
 But tbe grant is not void by reason of an original defect of Grant not 
 
 T T o ■ 11T1 •• PIT 'void by reason 
 
 stamp : and tberetore it was beld tbat a commission oi bank- of an original 
 rupt migbt be supported on a debt due to tbe petitioning 
 creditor in tbe cbaracter of executor, altbougb be bad not 
 obtained a probate on a sufficient stamp at tbe time wben tbe 
 commission issued, if be afterwards procured tbe proper 
 stamp to be affixed to tbe probate {p). 
 
 So wbere letters of administration bad been stamped under 
 tbe 41st section of 55 Geo. III. c. 184 {q) (tbe trial of tbe 
 cause baving been adjourned, in order to enable tbe plaintiff 
 to take advantage of tbat enactment), it was beld, tbat tbe 
 defendant could not object tbat tbey bad not been stamped 
 witbin six montbs after tbe discovery of tbe mistake, so tbat 
 a penalty bad been incurred under tbe 43rd section (r), and 
 tbe penalty bad not been paid (s). 
 
 Tbe executor or administrator, it sbould seem, is bound to Construction 
 take out tbe grant to tbe extent of tbe sum be expects to statutes : ° 
 receive {t). 
 
 (m) Hunt V. Stevens, 3 Taunt. until he had procured the letters 
 
 113. to be sufficiently stamped : Chris- 
 
 (rt) Ibid. Carr v. Eoberts, 2 B. tian v. Devereux, 12 Sim. 264. 
 
 & Adol. 906. Post, p. 541. See ( p) Rogers v. James, 7 Taunt. 
 
 infra, Pt. v. Bk. i. Ch. i. 147. 
 
 (o) Jones V. Howells, 2 Hare, (q) Ante, p. 528. 
 
 342. Where A. claimed a fund (r) Ante, p. 530. 
 
 in Court, as his father's adminis- (s) Lacy r. Rhys, 4 B. & Sm. 
 
 trator, but the letters of adminis- 873. 
 
 tration were not stamped to a (/) Butler v. Butler. 2 Phillim. 
 
 sufficient amount, the Court re- 39. 
 fused to grunt him a stop-order
 
 540 
 
 to what 
 amount the 
 grant should 
 be taken out : 
 
 as to debts due 
 to deceased : 
 
 mortgage debt 
 belonging to 
 the owner of 
 the mortgaged 
 estate : 
 
 the stamp 
 must be of an 
 amount suffi- 
 cient to cover 
 the value as it 
 stood at the 
 date of the 
 grant of Utters. 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 In the case of Moses v. Crafter (u), Lord Tenterden held 
 that desperate and doubtful debts need not be included in the 
 amount for which the probate duty is paid ; and that the 
 executor has a right to exercise his judgment fairly and bond 
 fide, Avhether a debt is doubtful or bad (.r). 
 
 In Sicaheij v. Sicahey (ij), on the death of a mortgagor, his 
 daughter became entitled, as his heir, to the equity of re- 
 demption of an estate which he had mortgaged to the trustees 
 of his own marriage settlement, and under that settlement 
 she also became entitled, as cestui que trust, to the mortgage 
 money : The trustees then conveyed the estate to her, subject 
 expressly to the equity of redemption, and did not release her 
 father's covenant for the repayment of the money : Afterwards 
 she granted an annuity, and as a security for it, conveyed the 
 estate and assigned the money to a trustee for the annuitant : 
 By her Will she devised the estate, but did not dispose of 
 her personal estate : and Sir L. Shadwell held, that though, 
 as between her devisee and her next of kin, the latter had no 
 claim to the stock, yet she was, when she died, cestui que 
 trust of her father's covenant for repayment ; and that, there- 
 fore, the debt remained, and probate as well as legacy duty 
 was payable on it. 
 
 The stamp must be of a sufficient amount to cover the 
 value of the assets as it stood, not merely at the time of the 
 death of the deceased, but also at the date of the grant of 
 administration. Thus, in the case of I'oe v. Evans (s), A. being 
 possessed of a term of years in a house and land, died intestate 
 in 1828 : In 1841, his next of kin took out administration to 
 him : In the meantime B. had been wrongfully in possession, 
 and had built a second house on the demised premises : And 
 
 (u) 4 C. & P. 524. 
 
 (z) But mere uncertainty as to 
 the amount is no ground for omis- 
 sion. See Att.-Gen. v. Brunning, 
 8 H. L. per Ld. Wensleydale, p. 
 262, 263. 
 
 {y) 15 Sim. 502. 
 
 (s) 10 Q. B. 476. See also At- 
 torney-General V. Partington, 1 
 Hurlst. & C. 457. Affirmed in 
 error, 3 Hurls. & C. 193, and sub- 
 sequently affimied in the House of 
 Lords. Sub nom. Partington v. 
 Att.-Gen., L. E. 4 H. L. 100.
 
 Ft. I. Bk. VII.] On Probate and Letters of Adimnistration. 541 
 
 it was held that the stamp on the letters, which was sufficient 
 to cover the value of the lease at the date of the death of the 
 deceased, but not the improved value at the date of the grant 
 of the administration, was insufficient. 
 
 If a married woman, entitled as next of kin to the estate Case where 
 
 . . husband's ad- 
 
 of an intestate, dies without assertmg her claim, leavnig her ministrator 
 husband surviving, who also dies without asserting his fo^ce^ ^'right 
 claim, it is necessary for the next of kin of the husband, in of his deceased 
 
 ' •> _ wife. 
 
 order to enforce the right of the wife and reduce it into 
 possession, to take out letters of administration to both 
 husband and wife, and pay stamp duty on the property for 
 each grant of administration (rt)- 
 
 It will be observed that under the existing statutes, as under What is trust 
 55 Geo. III. c. 184, the ad valorem duty is exclusive of what within the 
 the deceased shall have been possessed of, or entitled to, as a r,5^[^go'°"j[' 
 trustee and not beneficially (?;). In Carr, administratrix of c. 184: 
 Walker v. Roberts (c), an intestate had granted an annuity to 
 Ann Smith, and afterwards by deed conveyed his property to 
 the defendant, who covenanted to indemnify him against 
 the paj^ment of the annuity : Default having been subse- 
 quently made in the payment during the intestate's lifetime, 
 the annuitant sued his administratrix, and recovered judg- 
 ment for debt and costs exceeding 20/. : The administratrix 
 paid this, and then sued the defendant on his covenant for 
 the amount : It was held that the right to recover this sum 
 was a part of the intestate's estate, and rendered the 
 letters of administration liable to stamp duty ; and that the 
 intestate, if he had lived, could not have been considered, 
 in respect of this sum, as a mere trustee for the annuitant, 
 and having no beneficial interest : Lord Tenterden, in giving 
 judgment in this case, after stating the words of the Act, 
 observed, that this provision was made for the exemp- 
 tion of mere trustees, as where property is mortgaged in 
 trust ; in which case, if the mortgagee's representative were 
 bound to pay the whole amount of the duty, great injustice 
 
 (a) Ibid. (h) Ante, p. 512. 
 
 (c) 2 B. & Adol. 905.
 
 542 
 
 Of the Stcnyip Dntk's. [Pt. i. Bk. vii. 
 
 the probate 
 duty is to be 
 regulated by 
 the value of 
 such part of 
 the assets as 
 is within the 
 jurisdiction of 
 the Court 
 which grants 
 the probate or 
 letters of ad- 
 ministration : 
 
 the duty is 
 not payable in 
 respect of pro- 
 perty in a 
 foreign country 
 belonging to a 
 testator dying 
 in this 
 country al- 
 though the 
 property be 
 brought into 
 and adminis- 
 tered in this 
 country by the 
 executor : 
 
 would be done : Here Walker, the intestate, did not 
 stand in the position of a mere trustee ; for he had a 
 beneficial interest in the covenant, since he was liable in 
 the first instance to Smith, and had an interest in obtain- 
 ing payment of her annuity from the defendant, to relieve 
 himself. 
 
 The law appears to be now settled that, by the terms of the 
 Act of Parliament, the amount of the probate duty is to 
 be regulated, not by the value of all the assets which an 
 executor or administrator may ultimately administer by 
 virtue of the Wills or letters of administration, but hy the 
 value of such part as is at the death of the deceased ivithin 
 the jurisdiction of the Court hy which the probate or letters of 
 administration are granted {d). 
 
 Whatever may have been the origin of this jurisdiction (e), 
 it is clear that it is a limited one, and can be exercised in 
 respect of those efiects only which the Ordinary would have 
 had himself to administer in case of intestacy, and which 
 must therefore be so situated as that he could have disposed 
 of them in pios usus (/). 
 
 These principles have been adopted in several important 
 decisions respecting the liability to probate duty of the 
 personal property of the testator, which at the time of his 
 death, is in a foreign country, but which, after his death, 
 is brought into this country by his executor. The first of 
 these was the Att.-Gen. v. Dimond (g). In that case the 
 
 (d) Hence it follows that pro- 
 bate duty attaches on bona nota- 
 bilia in the place where the goods 
 happen to be situate, wholly irre- 
 spective of the question of the 
 domicil of the testator : Feman- 
 des' Executors' case, L. E., 5 Ch. 
 App. 314—317. And in In the 
 goods of Ewing, 6 P. D. 23, Sir J. 
 Hannen, in speaking of the share 
 of a deceased partner, stated that 
 in his view it was situate where 
 the business was carried on. As 
 to duty being payable upon assets 
 
 on the high seas at the time of 
 the testator's death, see Att.-Gen. 
 V. Pratt, L. E., 9 Ex. 140. The 
 question in each case would seem 
 to be whether an English or a 
 foreign probate is necessary to 
 enable the personal representatives 
 to recover the property on which 
 the duty is claimed. Laidlay v. 
 I.ord Advocate, 15 A. C. 468. 
 
 (e) See ante, p. 340. 
 
 (/) See ante, p. 340. 
 
 {(j) 1 Crompt. & Jervis, 356. 
 S. C. 1 Tvrwh. 243.
 
 Pt. I. Bk. VII.] On Probate and Letters of Administration. 543 
 
 testator died at Leicester on or about the 10th of May, 
 1828, and on the 28th June, 1828, the Will was proved 
 in the Prerogative Court of Canterbury, by the executor : 
 The personal property of the testator was sworn to be under 
 the value of 5000L, and a probate duty of 80^. only was 
 paid : The testator, at the time of his death, was a creditor 
 of the French Government, to the amount of the annual 
 sum of 32,727 francs, 5 per cent, consolidated, inscribed in 
 the great book of the debt public of France called rentes : 
 The personal property of the said testator not including 
 the said rentes, was under the value of 5,000^. : After the 
 death of the testator, in July, 1828, the executor executed 
 a power of attorney, authorizing Messrs. Mallet, a French 
 house, to sell out the rentes in question : This power of 
 attorney, together with a notarial exemplified extract of the 
 clause in the Will appointing the executors, and a notarial 
 copy of the Probate Act, and a notarial certificate of the 
 burial of Paul Francis Benfield, the testator, were produced 
 by Messrs. Mallet to the Bank of France, and the said rentes 
 were thereupon sold by them at Paris, under the said power 
 of attorney, and the produce was received by them and 
 transmitted by bills amounting to 27,183Z. 9s. ^d. sterling, 
 on account of the executor, to Messrs. Hammersley and Co., 
 bankers of London, and was placed by them to the account 
 of the executor, in his character of executor : and the said 
 Messrs. Hammersley, by his order, as executor, invested the 
 produce of the said bills in Bank Three per Cent. Annuities, 
 in the English funds, in the names of himself and a co-trustee 
 appointed by him, in the room of a co-executor, deceased, 
 where the same still continued : The testator, as well as the 
 executor, was at his death, and during his lifetime, an 
 English subject, and resident in England : The question for 
 the opinion of the Court was, Avhether the executor was 
 bound to pay a probate duty on the amount of the produce 
 of the said French rentes : And the Barons, after taking 
 time to consider, decided in the negative : Lord Lyndhurst, 
 C.B., in delivering the judgment of the Court, observed, 
 that, by the terms of the Act of Parliament, the amount of
 
 5-14 Of the Stamp Duties. [Pt. i. Bk. vir. 
 
 the duty is regulated hy the value of the estate and effects for 
 or in respect of which the probate is granted; and the 
 question therefore was, for or in respect of what estate and 
 effects was the probate granted in the present instance : that 
 it could not have been granted for or in respect of the 
 property in question, because, at the time of the death of 
 the testator, it was in a foreign country, and, consequently, 
 out of the jurisdiction of the Spiritual Court : And his 
 Lordship distinguished between the liability to probate 
 duty, and that to legacy duty (li), inasmuch as it is not 
 the administration of assets which renders the probate duty 
 payable, but the local situation of the assets at the testator's 
 death. 
 
 There was, in effect, an appeal from this judgment to the 
 House of Lords, in the case of The Att.-Gen. v. Hope (i), 
 where the same point arose with respect to moneys standing 
 in the testator's name in the public funds or stock of the 
 United States of America, and debts due to him from persons 
 in that country : But their Lordships, after hearing the 
 case very fully and ably argued, recognized and adopted 
 the decision of the barons of the Exchequer : And Lord 
 Chancellor Brougham, in delivering his opinion to the 
 House, stated that he had made inquiries of the judge of 
 the Prerogative Court (Sir J. Nicholl), and the King's 
 Advocate (Sir H. Jenner), and that they confirmed the 
 view he had taken of the jurisdiction and nature of the 
 Ordinary's office, r'l.:., that probate never has been granted 
 except for goods, which, at the time of the death of the 
 party, were within the jurisdiction of the Ordinary who 
 makes the grant (A) . 
 
 These two cases, in effect, have decided that French 
 rentes and American stock, which are part of the national 
 debt of France and America respectively, and are trans- 
 
 {h) The Court has decided that Infra, Pt. iii. Bk. v. Ch. ii. 
 foreign stock, the property of a (i) 1 Crompt. INI. & E. 530. 
 
 testator domiciled in this country, 2 CI. & Fin. 84. 
 ia liable to legacy duty: In re (A-) See, however, Spratt r. Harris 
 
 Ewin, 1 Crompt. & Jerv. 151. 4 Hagg. 405. Ante, p. 300.
 
 Pt. I. Bk. VII.] Oil Prolxde and Letters of Administration. 545 
 
 ferable there only, and debts due from persons in America, 
 are not assets locally situated here. So in Pearse v. 
 Pearse (Z), the testator, who was domiciled in England, 
 had, in the hands of his agents in India, certain securities 
 of the Indian Government, the principal and interest of 
 which were payable in India, either in cash or by bills on 
 the East India Company, at the option of the creditor ; 
 Shortly before his death, he accepted an offer made by the 
 Company to have his notes converted into stock, to be 
 registered in England, and to be saleable and transferable 
 there : The conversion was not completed at the testator's 
 death, nor until after his Will has been proved in England ; 
 but ultimately the stock was transferred to his executors : 
 And Sir L. Shadwell held, on the authority of the Att.-Gen. 
 V. Hope, that no probate duty was payable in respect either 
 of the notes or the stock {))i). 
 
 In the Att.-Gen. v. Hiiigliis (n), it was held that the 
 Crown could claim duty, payable in Scotland, under the 
 Stat. 48 Geo. III., c. 149, s. 38, in respect of shares in 
 certain public companies in Scotland, which belonged to 
 a testator who was domiciled in England and whose Will 
 had been proved there and the duty duly paid thereon. 
 This case proceeded on the ground that the shares were 
 assets in Scotland and not in England. 
 
 And in the Att.-Gen. v. Boincens (o), the Barons of the probate duty 
 Exchequer held that probate duty was payable upon the foreign state : 
 value of Russian, Danish and Dutch government bonds, 
 which were the property of the testatrix, and were, at the 
 time of her death, in the province of Canterbury : The 
 
 (l) 9 Sim. 430. favour of tlie testator's English 
 
 (m) Where a testator directed bankers, and the testator died 
 
 his banker."? in India to realize cer- while the bills were on their way 
 
 tain securities and to transmit the t(j En^dand, it was held that piu- 
 
 jiroceeds to his bankers in EiiLfland, bate duty must be paid on the 
 
 which tliey did by transmitting amount of the bills. Att.-Gen. v. 
 
 certain bills payable si-x; months Pratt, L. R. 9 Ex. 140. 
 
 after sight drawn by a bank in (/() 2 Hurls. & N. 339. 
 
 India upon a bank in London in (o) 4 Mees. & Wels. 171. 
 
 W.K. — VOL. I. N N
 
 o4G Of the Stamp Duties. [Pt. I. Bk. vil, 
 
 question was raised upon a special verdict, which gave a 
 description of the instruments, and found that they were 
 marketable securities within this kingdom, transferred by 
 delivery only, and that it never had been necessary to do 
 any act whatever out of the kingdom of England, in order 
 to make a transfer of any of the said bonds valid : And the 
 Barons held, that these securities were to be considered 
 as assets locally situate within the province of Canterbury 
 at the time of the testator's death, and were, therefore, 
 liable to the duty : Their Lordships, at the same time, 
 expressed their opinion that no Ordinary in England could 
 perform any act of administration within his diocese, with 
 respect to debts due from persons resident abroad, or with 
 respect to shares or interests in foreign funds payable abroad 
 and incapable of being transferred here, and therefore that 
 no duty would be payable on the probate or letters of 
 administration in respect of such effects : But that, on the 
 other hand, it was clear that the Ordinary could administer 
 all chattels within his jurisdiction : and if an instrument was 
 created of a chattel nature, capable of being transferred by 
 acts done here and sold for money here, there was no reason 
 why the Ordinary or his appointee should not administer 
 that species of property : That such an instrument was in 
 effect a saleable chattel, and followed the nature of other 
 chattels as to the jurisdiction to grant probate : Here were 
 valuable instruments in England the subjects of ordinary 
 sale ; the debtors by virtue of such instruments, if there 
 were any, resident abroad, out of the jurisdiction of any 
 Ordinary, and, consequently, there being no fear of conflicting 
 rights between the jurisdictions who were to grant pro- 
 bate ( p) . 
 
 the duty is not These principles were also recognized and acted on by 
 payable on 
 
 ( J)) It may be proper to remiiul where tlie land lies ; specialty debts 
 
 the reader, that judgment debts where the instrument happens to 
 
 are assets for the purposes of the be ; and simple contract debts 
 
 jurisdiction of the Ordinary, where where the debtor resides at the 
 
 the judgment is recorded ; leases time of the testator's death : (See
 
 Pt. I. Bk, VII.] Oil Probate and Letters of Administration. 547 
 
 Lord Langdale, M.R., in Matsoii v. Swift (q), where his laud directed 
 
 , ■ to be con- 
 
 Lordship held that no probate duty was payable in respect verted into 
 
 of land directed to be converted into money : And the °^°"®^ • 
 
 learned Judge adverted to the two-fold character of the 
 
 probate, which, besides granting administration, authenticates 
 
 the Will, and is evidence of the character of executor ; so 
 
 that the probate may be required for the purpose of proving 
 
 the executor's title to personal estate, which may not be 
 
 comprised in the grant of administration contained in the 
 
 same probate. This decision was relied on by Wigram, V.-C, 
 
 in Custance v. Braclshaw (r), where his Honour held that the 
 
 share of a deceased partner in the freehold and copyhold 
 
 estates of the partnership is not personal estate for the 
 
 purpose of being included in the value or amount in respect 
 
 of which probate duty is payable. 
 
 In supposed accordance with these decisions, the case of Secus, as to 
 the Attorney-General v. Brunning (s) was decided by the jand con- 
 Court of Exchequer. There a testator having by a valid ^^f;"^ *" ^^ 
 contract agreed to sell a freehold estate for 115,000L and 
 received a deposit of 15,000L in his lifetime, the contract 
 was specifically performed, and the remainder of the pur- 
 chase-money paid to his executor after his death : And the 
 Barons held that probate duty was not payable in respect of 
 any portion of the 115,000Z. as part of the personal estate of 
 the testator. 
 
 But this decision was reversed by the House of Lords {t), 
 
 1 Saund. 274 a, note (3):) The to be cited again as an autliority." 
 
 instruments in question were in- Att.-Gen. v. Hubbuck, 13 Q. B. D. 
 
 correctly called bonds, not being 275, 289. 
 under seal, but being merely cer- (.s) 4 H. & X. 95. 
 
 titicates of tlie rights of the liolders {t) 8 H. of L. 24.3. Re De 
 
 to claim the amounts therein speci- Lancey, L. R. 5 Exch. 102. Where 
 
 fied from the respective govern- a testator bequeathed his personal 
 
 ments. estate to his son, who died in his 
 
 {q) 8 Beav. 368. father's lifetime, leaving issue, who 
 
 (?•) 4 Hare, 315. But of this became entitled to the bequest under 
 
 case Brett, M.ll., said, " I am of sect. 33 of Wills Act, it Avas held 
 
 opinion that in a Court of Law that the executors of the son were 
 
 Custance v. Bradshaw ought never chargeable with probate duty on 
 
 X N 2
 
 548 Oftltc Stamp Dulioi^. [Pt. i. Bk. vii. 
 
 AvLo acted on the principle that all moneys recoverable by 
 the executors by virtue of the probate, in whatever form re- 
 covered, whether through the agency of a Court of Equity 
 or of a Court of Law, are part of the estate and effects of 
 the testator, and are liable to probate duty : and Matson v. 
 Sir-i/t and Ciistance v. Bra<Uhatr were distinguished on the 
 ground, that in neither of those cases was there any change 
 in the nature of the property created by the obligation of a 
 binding contract, and the property in question remained 
 real estate at the death of the testator ; — whereas in the 
 present case, there was a contract binding on the testator 
 and on the purchaser by virtue of which the former had a 
 right to the stipulated purchase-money on completing the 
 purchase, the latter had a like right to the estate ; so that 
 in equity, the testator at the time of his death had a claim 
 for 115,000/., in the event of a good title being made out, 
 and that claim devolved on the executor (?;). 
 
 In Att.-Gcn.\. Lomas [x) this case was followed, and it was 
 held that, when a Will contains an absolute trust for the 
 conversion of land, and, by reason of the failure of the limita- 
 tions of the proceeds contained in the Will, the testator's heir 
 takes the undisposed-of interest, he takes it as money, and on 
 his death probate duty is payable upon it, though the land 
 remains unsold. 
 
 the amount of the bequest in the nership Act, 1890 (53 & 54 Yict. 
 same manner as they would have c. 39, sect. 22), that where land or 
 l)een had the son actually survived any heritable interest therein has 
 the father : Executors of Perry v. become partnership property, it 
 The Queen, L. R. 4 Ex. 27. shall, imless the contrary intention 
 (!() See also Forbes v. Steven, appear, be treated as between the 
 L. R. 10 Eq. 178, in which case, partners (including the representa- 
 after consideration of the above tives of a deceased partner), and 
 cases, it was held that legacy duty also as between the heirs of a de- 
 was payable upon the share of a ceased partner and his executors 
 deceased partner in the proceeds or administrators as personal or 
 of freehold property used for the moveable, and not real or heritable 
 purposes of the partnership, and estate. 
 forming a partnership asset. And {x) L. R., 9 Exch. 29. 
 see the provision of the new Part-
 
 Pt. I. Bk. VII.] On, Prohafc ((ud Letters of Ad inuiist ration. 549 
 
 Again, in the case of Att.-Gen. v. Hahhuck {ij), it was and as to real 
 held that the shares of partners in realty forming part p^Xei-sMp.* 
 of partnership property, must be regarded as personal 
 estate in the absence of any binding agreement between the 
 partners to the contrary, and probate is payable on a deceased 
 partner's share in such realty irrespective of the question, 
 whether or not there is, in the event, any actual conversion 
 into personalty. In this case the learned Judges in the Court 
 of Appeal cite, with approval, the judgment of Lord Cran- 
 worth in Att.-Gcn. v. Brimning, when dealing with the cases 
 of Matson v. Sivift and Custance v, Bradshaw, and distin- 
 guishing them from that case. The principle contained in 
 the above cases seems to be that "the character that is 
 " impressed upon property by law at the time when the breath 
 " leaves the body of the owner is its character for the purpose 
 " of the fiscal duties which are alleged to attach upon 
 " it " {z). 
 
 In the case in the House of Lords of Att.-Gen. v. Ailes- 
 hury {a), money of a lunatic was invested by his committees 
 by order of the Lords Justices having jurisdiction in Lunacy, 
 in purchases of lands which, under their Lordships' direction, 
 were conveyed to the committees, " their heirs and assigns, 
 " upon trust for" the lunatic, "his executors, administrators, 
 " and assigns," with a declaration that the lands so conveyed 
 (and all others to be purchased in lieu of them) under any 
 exercise of certain powers of sale and reinvestment which 
 were contained in the deed should, " to all intents and pur- 
 " poses be considered as part of the personal estate of" the 
 lunatic. Upon the death of the lunatic, who never recovered, 
 it was held that the value of the lands was part of the j^ersonal 
 estate of the lunatic at his death and liable to probate duty. 
 
 Where freehold property is, by the doctrine of Equitable 
 Conversion, to be considered as personalty, it is liable to 
 
 (y) 13 Q. B. D. 275, aflirming (a) 12 App. Cas. 672, reversing 
 
 S. C, 10 Q. B. D. 488. the decision of the Court of Appeal, 
 
 (z) Per Lord Coleridge in Att.- 1 G Q. B. D. 408, and restoring the 
 
 Gen. V. Hubhuck, 13 Q. B. D. 275, decision of Mathew and A. L. 
 
 280. Smith, JJ., 14 Q. B. D. 895.
 
 550 
 
 Of the Stamp Duties. [Pt. i. Bk. vii. 
 
 23 & 24 Vict, 
 c. In, s. 4. 
 
 Personal es- 
 tate ayipointcd 
 by Will under 
 general powers 
 to be charge- 
 able with pro- 
 bate and in- 
 ventory duties. 
 
 Probate and 
 inventory du- 
 ties in respect 
 thereof to be a 
 charge on the 
 property. 
 
 probate duty, and a Will disposing of it is therefore entitled 
 to probate {}>). 
 
 By Stat. 23 & 24 Yict. c. 15, s. 4 (c), " The stamp duties 
 payable by law upon probates of Wills and letters of adminis- 
 tration with a Will annexed in England and Ireland, and 
 upon inventories in Scotland, shall be levied and paid in 
 respect of all the personal or moveable estate and effects 
 which any person hereafter dying shall have disposed of by 
 Will, under any authority enabling such person to dispose of 
 the same, as he or she shall think fit ; and for the purpose of 
 this Act such personal or moveable estate and effects shall be 
 deemed to be the personal or moveable estate and effects 
 of the person so dying in respect of which the probate of the 
 Will, or the letters of administration with the Will annexed, 
 of such person are or is granted, or the inventory is or is 
 required to he exhibited or recorded, as the case may be ; and 
 such estate and effects, and the value thereof shall accordingly 
 be included in the affidavit required by law to be made on 
 applying for probate or letters of administration, in order to 
 the full and proper stamp duty being paid." 
 
 Sect. 5. " The said last-mentioned duties shall be a charge 
 or burden upon the property in respect of which the same are so 
 payable, and shall be paid thereout by the trustees or owners 
 thereof to the person for the time being lawfully having or 
 taking the burden of the execution of the AVill or testamen- 
 tary instrument, or the administration or management of the 
 personal or moveable estate and effects of the deceased, for 
 the benefit of the persons entitled to the personal or moveable 
 estate and efiects of the deceased." 
 
 {h) In the goods of Ginin, 9 P. 
 D. 242. 
 
 (c) This statute applies to the 
 Wills of persons dying after 3 
 April, 1860. Prior to this statute 
 probate duty was not payable in 
 respect of property over which the 
 testator had merely a power of 
 
 a])pointment. Piatt v. Eouth, 6 
 M. & W. 756, affirmed in tlie 
 House of Lords, sub nom. Drake v. 
 Att.-Gen., 10 CI. & Fin. 257. The 
 contrary had previously been held 
 in Palmer v. Whitmore, 5 Sim. 
 178, and in Att.-Gen. v. Staff, 2 
 Vv. & M. 124. 
 
 END OF PART THE FIRST.
 
 551 
 
 PAKT THE SECOND. 
 
 or THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR. 
 
 BOOK THE FIEST. 
 
 OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR ADMINIS- 
 TRATOR VESTS : AND OF THE QUALITY OF THAT ESTATE. 
 
 In considering the nature of the estate which an executor 
 or administrator has in the property of the deceased, it is pro- 
 posed to inquire, 1. At what time his estate vests; 2. The 
 quahty of his estate. 
 
 executor. 
 
 CHAPTER THE FIEST. 
 
 OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR 
 ADMINISTRATOR VESTS. 
 
 As the interest of an executor in the estate of the deceased {Estate of 
 is derived exchisively from the Will {<(), so it vests in the 
 executor from the moment of the testator's death {h). Thus | 
 where the demise hy an executor, the lessor of the plaintiff 
 in ejectment, was laid two years before he had proved the 
 Will under which he claimed, it was held good (c). So where 
 a testator had given a bailiff authority to distrain, but died 
 almost immediately before the distress was taken : and, after 
 
 (a) Ante, p. 243. A. 745, 746. 
 
 {h) Com. Dig. Administration (c) Roe v. Summersett, 2 W. 
 
 (B. 10). AVoolley r. Clarlc, f) B. & ]51ack. 692.
 
 552 Of the Estate of an Exvcvtur, cDc. [Pt. 11. Bk. I. 
 
 it had been taken in his name, his executor ratified the 
 distress ; it was held that the plaintiff might well avow as 
 the bailiff of the executor : because the rent was due from the 
 estate, and the law knows no interval between the testator's 
 death and the vesting of the right in his executor : as soon as 
 he obtains probate, his right is considered as accruing from 
 that period {d). 
 Estate of ad- Qn the other hand, an administrator derives his title wholly 
 
 ministrator. ■-, ■, i r i • • 
 
 from the Court : he has none until the letters ot admmis- 
 tration are granted, and the property of the deceased vests in 
 him only from the time of the grant {c) . 
 
 Accordingly, no right of action accrues to an administrator 
 until he has sued out letters of administration. In an action 
 on a bill of exchange by an administrator, where the bill 
 was accepted after the death of the deceased, and the accept- 
 ance, and also the day of payment, was more than six 
 years before the commencement of the suit, but the granting 
 of administration was less than six years before, it was held 
 that the Statute of Limitations began to run from the date 
 of administration, and not from the day of payment, since 
 there was no cause of action until the administration was 
 granted (/). So where to a declaration in trover by an 
 administrator, alleging the grant of letters of administration 
 to the plaintiff, and that the defendant knowing the goods 
 to have been the property of the intestate in his lifetime, and 
 of the plaintiff as administrator since his death, afterwards, 
 and after the death of the intestate, to wit, on, kc, con- 
 verted the same goods, it was pleaded that the defendant 
 was not guilty of the premises within six years, such plea 
 was held bad upon special demurrer, on the ground, that 
 although it might be true that the defendant was not guilty 
 within six years, yet the cause of action might have accrued 
 
 (d) Whitehead r. Taylor, 10 A. (/) Murray r. E. I. Company, 
 & E. 210. 5 B. & A. 204. Post, Pt. v. Bk. i. 
 
 (e) Woolley r. Clark, 5 B. & A. Ch. i. 
 745, 746.
 
 Ch. I.J Of the time iv/ioi. it vests. 553 
 
 to the plaintiff by the grant of letters of administration ^Yithin 
 that period ([/). 
 
 The proposition, however, respecting the vesting of an 
 administrator's interest, must be taken with some qualifica- 
 tion ; for it seems clear that, for particular purposes, the 
 letters of administration relate back to the time of the death 
 of the intestate, and not to the time of granting them (h). 
 Thus, although it has been held that detinue cannot be 
 maintained by an administrator against a person who has 
 got possession of the goods of the intestate since his death, 
 but has ceased to hold them prior to the grant of adminis- 
 tration (?"), yet an administrator may have an action of tres- 
 pass (j) or trover for the goods of the intestate taken by one 
 before the letters granted unto him ; otherwise there would 
 be no remedy for this wrong-doing (A). So where goods had 
 been sold after the death of an intestate and before the grant 
 of letters of administration, avowedly on account of the estate 
 of the intestate, by one who had been his agent, it was held 
 that the administrator might ratify the sale and recover the 
 price from the vendee in assumpsit for goods sold and 
 delivered (l). And accordingly it should seem that when- 
 ever any one acting on behalf of the intestate's estate, and 
 not on his own account, makes a contract with another 
 before any grant of administration, the administration will 
 have relation back, in order not to lose the benefit of the 
 contract, so that the administrator may sue upon it, as made 
 to himself (w). And so if, during the time when there is no 
 personal representative of the estate of a deceased person, 
 
 ((/) Pratt V. Swaine, 8 B. & C. 825. 
 
 285. ij) Tharpe i: Stalhvood, 5 M. & 
 
 (h) Godolph. Pt. 2, c. 20, s. 6. Gr. 760. 
 
 2 lloll. Abr. 399, tit. Relation (A.), (k) Foster v. Bates, 12 M. & W. 
 
 pi. 1. 2 Roll. Abr. 544, Trespass 233, i^er Parke, B. Searson i'. 
 
 (T.), pi. 1. Middleton's case, 5 Robinson, 2 Fost. & F. 351. 
 
 Co. 28 h. Com. Dig. AdiViinistra- (/) Foster v. Bates, 12 M. & ^^'. 
 
 tion (B. 10). Wentw. Oft'. Ex. 22(i. 
 
 115, IIG, 14tli edition. {)ii) Bodger r. Arcli, 10 Exch. 
 
 (i) Crosslleld r. Sucl:, 8 Excli. 333.
 
 554 Of the Estate of a it Exccvtor, S:c. | Pt, ii. Bk. i. 
 
 services have been renclcrcd whieli uot ouly were for the 
 benefit of the estate, but also were rendered under a contract 
 with some one who subsequently by becoming administrator 
 became authorised to bind the estate, and ratified the con- 
 tract, the estate of such deceased person is liable for such 
 services (n). Further, it has been held on the bare doctrine 
 of relation, that in a case where the administrator might 
 maintain trover for a conversion between the death of the in- 
 testate and the grant of administration, he may waive the 
 tort and recover as on a contract : Thus, where money 
 belonging to an estate at the time of his death, or due to him 
 and paid in after his death, or proceeding from the sale of his 
 effects after his death, has, before the grant of administra- 
 tion, been applied by a stranger to the payment of the intes- 
 tate's debts and funeral expenses, the administrator may 
 recover it from such stranger as money had and received 
 to his use as administrator (o). So it should seem the grant 
 of administration will have the eftect of vesting leasehold 
 property in the administrator by relation, so as to enable 
 him to bring actions in respect of that property, for all 
 matters affecting the same subsequent to the death of the 
 intestate, and so as to render him liable to account for the 
 rents and profits of it from the death of the intestate ( j?) . 
 
 [n) Re Watson, Ex parte Phil- by an administrator, tlie demise 
 
 lips, 18 Q. B. D. 116, affirmed may be laid on a day after the 
 
 in the Court of Appeal, 19 Q. B. intestate's death, but before admi- 
 
 D. 234. See, however, the remarks nistration granted ; for the admi- 
 
 of Lord Esher, M.R., in his judg- nistration, when granted, will re- 
 
 ment on appeal, who doubted late back, and show the title to have 
 
 whether an administrator after be- been in the administrator from the 
 
 coming administrator, and while death of the intestate. This point 
 
 acting in the interests of other was expressly decided accordingly, 
 
 persons, could have ratified a prior by the Court of K. B. in Ireland, 
 
 contract made with himself. after a full consideration, in Patten 
 
 (o) Welchman v. Sturgis, 13 v. Patten, T. 3 W. 4. 1 Alcock & 
 
 Q. B. 552. Napier, 493 : and Bushe, C.J,, in 
 
 {p) Rex V. Horsley, 8 East, 410, delivering judgment, regards this 
 
 in Lord Ellenborough's judgment. decision as reconcileable ^vith that 
 
 So it is laid down in Sehv. N. P. ot Keane v. Dee (K. B. Ireland, 
 
 717, 6th edition, that in ejectment June, 1S21), 1 Alcock & Napier,
 
 Cli. I.] Of the time when it vests. 551 
 
 Again, although an executor de son tort cannot plead a 
 retainer of his own debt, yet if, even j^endciite lite, he obtains 
 administration, he may retain : for it legalizes those acts 
 which were tortious at the time (q). And there has been 
 already occasion (r) to point out other acts of an administra- 
 tor before administration granted, which the relation of the 
 letters in some measure renders valid. But the relation of 
 the grant of administration to the death of the intestate, shall 
 not, it is said, divest any right legally vested in another 
 between the death of the intestate and the commission of ad- 
 ministration. Thus, in Wari)ui v. Dewhury (s), a landlord 
 who had rent due to him, died intestate ; after which the 
 plaintiff in the action sued out execution against the defend- 
 ant, who was the tenant, and levied the debt upon him ; after 
 this, administration was committed to J. S. ; who thereupon 
 came into the Court, and moved for a rule on the sheriff to 
 pay him a year's rent out of the money levied, pursuant to 
 the 8 Ann. c. 17, urging, that though he was not administra- 
 tor at the time of serving the execution, yet as soon as the 
 administration was committed, it had relation to the death 
 of the intestate, and he might bring trover for goods taken 
 between the death of the intestate and commission of the 
 administration : But the Court held, that relations which are 
 
 496, note (1), in which case it had which case an administratrix, be- 
 
 been holden that an administrator fore she had taken out adminis- 
 
 coukl not justify a distress for tration, had contracted to assign a 
 
 rent (accrued out of a chattel term term for years of the intestate in 
 
 of the intestate after his death) a leasehold house ; and Parke, B., 
 
 made before the grant of the ad- was of opinion, that an allegation, 
 
 ministration, on the ground that that she was lawfully jwssessed of 
 
 although letters of administration the term at the time of the making 
 
 will operate by relation, to enable of the contract, could not be sup- 
 
 an administrator to recover a chat- jjorted. See also ante, jip. 342, 
 
 tel property from the time of the 343. 
 
 death of the intestate, yet it does (q) Curtis v. Vernon, 3 T. E. 
 
 not effectuate a legal proceed- 587, 590. 
 
 ing, taken before administration (r) Ante, pp. 344, 345. 
 
 granted, in order to recover sucli (.s) (jilb. Eq. Rep. 223, cited by 
 
 ]iroperty. See, however, Bacon v. Strange, arguendo, in Be.x r. Mann, 
 
 Simpson, 3 Mees, & Wels. 87, in S. ('. 1 Stra. 97.
 
 556 
 
 Relation back 
 of title where 
 the deceased 
 had only a 
 special pro- 
 perty. 
 
 3 & 4 Will. IV 
 c. 27. Admi- 
 
 Of the Estate of an Executor, &c. [Pt. ii. Bk. i. 
 
 but Ik'tions of law, should never divest any right legally 
 vested in another, between the death of the intestate and the 
 commission of administration ; and the plaintiff in the action 
 having duly served his execution, before the administrator had 
 a right to demand his rent, it was not reasonable the plaintiff 
 should be defeated by any relation whatsoever ; they did not 
 in that case deny the authorities which gave the administrator 
 trover, but went on a distinction between relations that are 
 to defeat lawful acts, and such as are to punish those that are 
 unlawful (0- 
 
 There appears, in some instances, to be the same relation 
 back of the title of the personal representative in cases where 
 the deceased had only a special property in the goods as 
 where he had the absolute property. Thus, if an uncertifi- 
 cated bankrupt acquired goods after his bankruptcy, and 
 died possessed of them, having been allowed to retain 
 possession by the assignees, his administrator might main- 
 tain trover against a third party who had sold the goods 
 between the period of the death of the intestate and 
 the grant of the administration ; for there was a good 
 title in the bankrupt as against all the world but the 
 assignees, and this title passes to his administrator (»)• 
 But there is no such relation back as to chattels in which 
 the deceased had no personal interest, but held merely as the 
 administrator of another : The bare circumstance of his dying 
 in possession will not enable his personal representative to 
 maintain trover even against a mere wrongdoer ; for it will be 
 a good defence that the right to the goods in question has 
 devolved on the administrator de honis non of the original 
 intestate {x). 
 
 By Stat. 3 & 4 Wm. IV. c. 27 (entitled An Act for the 
 
 (t) See also Eex v. Ilorsley, 8 
 East, 405, post, p. 566, note (m). 
 The rule that a party cannot be 
 made a trespasser by relation is 
 only applicable where the act com- 
 plained of was lawful at the time : 
 
 Tharpe v. Stallwood, 5 M. & Gr. 
 760. 
 
 (h) Fyson r. Chambers, 9 M. & 
 W. 460." 
 
 (./•) Elliot r. Kemp, 7 M. & ^Y. 
 .306.
 
 Cli. I.] Of the time wlien it vests. 557 
 
 Limitation of Actions and Suits relating to real property, cfc), nistrator to 
 
 n • • iii^ci f ^ • k T claim for pur- 
 
 s. D, it IS enacted, that tor the purposes ot tins Act an ad- poses of this 
 ministrator claiming the estate or interest of the deceased rektinK'^o*^"'^^ 
 person, of whose chattels he shall be appointed administrator, ^^^^ property, 
 
 as if he 
 
 shall be deemed to claim as if there had been no interval of obtained tlie 
 time between the death of such deceased person, and the interval after 
 ffrant of the letters of administration." death of de- 
 
 " ceased. 
 
 By 21 & 22 Vict. c. 95, s. 19, " From and after the decease ^^ ^ ^o yict 
 of any person dying intestate, and until letters of adminis- c. 95, s. 19. 
 
 Between the 
 
 tration shall be granted in respect of his estate and effects, death of the 
 the personal estate and effects of such deceased person shall the^^rant'of'^ 
 be vested in the Judge of the Court of Probate for the time administration 
 
 " property to 
 
 being in the same manner and to the same extent as here- vest in the 
 
 tofore they vested in the Ordinary." dinary: 
 
 All moveable goods, though in ever so many different and 
 
 distant places from the executor, vest in the executor in 
 
 possession, presently upon the testator's death (//) : for it is distinction be- 
 tween chattels 
 a rule of law, that the property of personal chattels draws real and per- 
 
 to it the possession (0). But it is otherwise of things im- time oTve'lsting 
 moveable, as leases for years of lands or houses : for of these '" possession. 
 the executor or administrator is not deemed to be in posses- 
 sion before entry {a). So of leases for years of a rectory, 
 consisting of glebe lands and tithes for years, it may be 
 doubtful if actual possession can be without actual entry 
 into the glebe land {})). But in case of a lease for years of 
 tithes only, it was held that the executor, though in never 
 so remote a place, should instantly, upon the setting out 
 thereof, be in actual possession to maintain action of trespass 
 for taking them away (r). 
 
 (//) Wentw. Off. Ex. 228, 14tli testator granted for a part of tlie 
 
 edit. 11 Vin. Ahr. 240. term, is in the executor imme- 
 
 (2) 2 Saund. 47, h. n. (1), to diately Ijy the death of the tes- 
 
 ■Will)raham v. Snow. tator : Trattle v. King, T. Jones, 
 
 (a) Wentw. Off. Ex. 228, 14tli 170. 
 
 edit. See the oLservations of (//) Wentw. Off. Ex. 229, 14th 
 
 Parke, B., in Barnett v. Earl of edit. 1 1 Vin. Abr. 240. 
 
 Guildford, 11 Exch. 32. But a (r) Ibid, 
 reversion of a term, wliich the
 
 558 
 
 CHAPTER THE SECOND. 
 
 The goods of 
 the deceased 
 not forfeited 
 by attainder of 
 executor, kc. 
 
 not applicalile 
 to the debts 
 •which the 
 executor owes 
 the Crown. 
 
 OF THE QUALITY OF THE ESTATE OF AN EXECUTOR OR 
 ADMINISTRATOR. 
 
 J- HE interest which an executor or administrator has in 
 the goods of the deceased is very different from the ahsolute, 
 proper, and ordinary interest which every one has in his 
 own proper goods (a) : For an executor or administrator 
 has his estate as such in aiiter droit merely, viz., as the 
 minister or dispenser of the goods of the dead (b). 
 
 Therefore, if before the Act 33 & 34 Vict. c. 23, for the 
 aboHtion of forfeiture for Treason and Felony, an executor or 
 administrator had been attainted of treason or felony, the 
 goods which he had as executor or administrator would not 
 thereby have been forfeited (c) : and though disabled by such 
 attaint from suing _p?'()p/'io jure, he might still have main- 
 tained an action in auter droit as executor or administra- 
 tor (fZ). 
 
 So, where an executor brought a quo minus in the Court of 
 Exchequer, stating that he was not able to pay the King's 
 debt, because the defendant detained from him lOOl. which 
 he owed to him as executor of J. S., it abated : because it 
 could not be intended that the King's debt could be satisfied 
 with that which the plaintiff should recover and receive as 
 executor (e). 
 
 (a) VVentw. Off. Ex. 192, 14tli 
 edit. 
 
 (//) Pinchon's case, 9 Co. 88, b. 
 2 Inst. 236. An executor has the 
 property only under a trust to 
 apply it for payment of the tes- 
 tator's debts, and such other 
 purposes as he ouglit to fulfil in 
 
 the course of his office as exe- 
 cutor : by Ashhurst, J., Farr v. 
 Newman, 4 T. E. 621, 645. 
 
 (c) 1 Hale, P. C. 251. Hawk. 
 P. C. Bk. 2, c. 49, s. 9. 
 
 (d) Ante, p. 186. 
 
 (e) Wentw. Off. Ex. 194, 14th 
 edit.
 
 Cli. II.] OfitsquaUty. 559 
 
 So though a lord of a villain might take all the villain's 
 own goods, yet he might not take those which the villain 
 held as executor (/). 
 
 Upon this principle also, if the executor or administrator Where the 
 
 GXGCutor 
 
 becomes bankrupt, with any property in his possession becomes bank- 
 belonging to the testator or intestate, distinguishable from of^he\estato/ 
 the general mass of his own property, it is not distributable ^^ not pass : 
 under the bankruptcy (r/). The trustee cannot seize even 
 money which specifically can be distinguished and ascer- 
 tained to belong to the deceased, and not to the bankrupt 
 himself (/(). But where a person entitled to take letters of 
 administration neglected to do so, yet remained in possession 
 of the goods of the intestate for twelve years, and being so 
 in possession became a bankrupt ; and a creditor of the 
 intestate afterwards took out letters of administration, and 
 claimed the goods from the assignees ; it was held that 
 these goods were within the stat. 21 Jac. I. c. 19, being 
 property in the possession, order, and disposition of the 
 bankrupt, with the consent of the true owner : and that the 
 assignees were therefore entitled to them (i). So where an 
 innkeeper, who was a widow, having died intestate, two of 
 her children, a son and daughter, took possession of her 
 furniture and stock in trade, and carried on her business in 
 their own names for two years after her death, during which 
 time they paid her funeral expenses and some of her debts, 
 but without taking out administration to her estate, and, at 
 the end of that time, became bankrupts, the daughter having 
 a few months previously retired from the business, and sold 
 
 (/) Lit. L. 2, c. 11, s. 192. sum to be paid to liim by the trus- 
 
 {(j) See Bankruptcy Act, 1883, tees for that purpose, the general 
 
 46 & 47 Vict. c. 52, § 44 (1). assets beyond that fund are not 
 
 (/i) By Lord Mansfield in How- liable : Ex "parte Garland, 10 Ves. 
 
 ardu.Jenimett, 3 Burr. 136i), cited 110. See post, Pt. iv. Bk. ii. 
 
 by Lord Kenyon, in Farr v. New- Ch. ii. § i. 
 
 man, 4 T. K. 621, 648. Under {%) Fox i;. Fislier, 3 B. & A. 135 ; 
 
 tlie bankruptcy of an executor and Kitchen v. Ibbetson, L. R, 17, Eq. 
 
 trustee, directed by the Will to 4G. 
 
 carry on a trade, and a liuuLed
 
 5G0 
 
 Oftlie Estate of an Executor, c^c. [Pt. ii. Bk. l. 
 
 proviso for 
 forfeiture of 
 lease, if lessee 
 or his executor 
 shall become 
 liankrupt : 
 
 receiver ax)- 
 pointed to 
 whom assig- 
 nees shall 
 account : 
 
 bankrupt 
 executor 
 residuary 
 legatee. 
 
 The goods of 
 the testator 
 cannot he 
 taken in 
 execution for 
 the debt of the 
 executor. 
 
 lier share of it to the son : Another of the children then took 
 out administration to the intestate, and claimed that part of 
 her furniture and stock in trade which still remained in 
 specie : But it was held that it belonged to the assignees, as 
 having been in the order and disposition of the son at the 
 time of his bankruptcy {k) . 
 
 It must be observed, that if the testator were a lessee for 
 j'ears, and the lease contained a proviso that if the lessee, 
 or Iris executors, administratorf!, or assifins, shall become 
 bankrupt, the lease shall become void, the bankruptcy of 
 the executor will operate as a forfeiture of the lease, not- 
 withstanding the lease itself does not pass to his as- 
 signees (l). 
 
 Where a trustee in bankruptcy possesses himself of effects, 
 which belong to the bankrupt as executor only, the Court, 
 upon application made to it, will order the return of such 
 effects to the bankrupt, or wdll, if necessary, appoint a 
 receiver (m). Where a bankrupt is an executor and residuary 
 legatee, and has paid the debts and particular legacies out of 
 part of the assets, if he refuses to collect the rest, notwith- 
 standing trustee in bankruptcy has not the legal interest 
 vested in him, the Court will assist him to get in the remainder 
 in the name of the executor {n). 
 
 Again, the goods of a testator in the hands of his executor 
 cannot be seized in execution of a judgment against the 
 executor in his own right (o). So if an executor dies 
 
 (/.) Re Thomas, ] Pliill. C. C. 
 159. It is to be observed tliat 
 uiuler the Bankniptcy Act, 1883, 
 § 44 (2), iii., reputed ownership is 
 limited to goods being at the com- 
 mencement of the bankruptcy in 
 the possession, order, or disposition 
 of the bankrupt in his trade or 
 business, by the consent or per- 
 mission of the true owner. It 
 must be noticed that things in 
 action, other than debts due or 
 growing due to the baukrujit in 
 
 tlie course of his trade or business, 
 are not "goods" witliin the 
 meaning of this section. 
 
 (1) 1 Cr. M. k R. 40.5. 
 
 (m) As to the powers exercise- 
 aljle by the Court as regards a 
 trustee in bankruptcy, see tlie 
 cases of Ex parte James, L. R., 
 9 Ch. 609, and Ex -parte Simmons, 
 16 Q. B. D. 308. 
 
 ('/() Ex parte Butler, 1 Atk. 213. 
 
 (o) Farr v. Newman, 4 T. R. 
 621, where all the former autho-
 
 Ch. II.] 
 
 Of its qiudifj/. 
 
 561 
 
 iudebted, leaving to his executor goods which he had as 
 executor, these are not assets liable to the payment of his 
 debts, but only for the payment of the first testator's (73). 
 But when an executrix used the goods of her testator as her 
 own, and afterwards married and then treated them as the 
 
 rities are collected and discussed. 
 Ill this case, BuUer, J., dissented 
 from the rest of the Court, viz. 
 Lord Kenyon, and Ashlmrst and 
 Grose, Justices. The action was 
 against the Sheriff for a false re- 
 turn, and the question was, whether 
 certain goods of the testator, which 
 had been seized by the sheriff 
 under an execution against the 
 husband of the executrix, in a 
 liouse in which tlie husband and 
 wife resided, and the testator had 
 resided, but which had not been sold 
 under the execution, were bound by 
 it. In a previous case, Whale v. 
 Booth, B. R. 25 Geo. III. 4 T. R. 
 625, note (a), where the goods of the 
 testator /lac? actually been sold under 
 a fieri facias against the executor 
 for his own debt, and the executor 
 joined in a bill of sale, it was held 
 by the Court of K. B. that tlie 
 property passed by the execution, 
 and could not afterwards be seized 
 under a writ sued out by a creditor 
 of the testator ; upon the principle 
 that the sale under the execution 
 could not be distinguished from 
 an alienation by the executor. But 
 although the two cases may thus 
 in some degree be reconciled. Eyre, 
 C.J., in Quick v. Staines, I Bos. & 
 Pul. 295, considers them as entirely 
 conflicting, and the law as still 
 unsettled. See also the observa- 
 tions of Sir Thomas Plumer, V.-C, 
 in Ray v. Ray, Coop. 2(i7. How- 
 ever, Lord Eldon, C, in M'Leod v. 
 W.E. — VOTi, I. 
 
 Drummond, 17 Ves. 168, adverts 
 to Farr v. Newman, as having 
 decided absolutely, that the eflects 
 of the testator cannot be taken in 
 execution for the debt of the exe- 
 cutor, and expresses his satisfac- 
 tion with that decision. See also 
 Kinderley v. Jervis, 22 Beav. 23, 
 2jer Romilly, M.R. See infra, 
 Pt. III. Bk. I. Ch. I., as to the 
 power of an executor to dispose by 
 sale of the goods of his testator. 
 If an executor, in pursuance of the 
 directions in the testator's Will, 
 carries on the testator's business 
 and in so doing contracts debts, 
 the fact that he has carried on tlie 
 business in his own name, and 
 that the testator's assets employed 
 in it are ostensibly the executor's 
 own property, will not entitle a 
 judgment creditor of the executor 
 to take in execution the testator's 
 assets. Lapse of time, and an en- 
 joyment of the assets in a manner 
 inconsistent with the trusts of the 
 Will, coupled with the consent of 
 the beneficiaries, may, however, 
 raise an inference of a gift of the 
 assets by them to the executor, 
 and entitle his judgment creditor to 
 take them in execution. But, when 
 the possession and the time which 
 has elapsed are in accordance with 
 the trusts of the Will, no such 
 inference can arise : Re Morgan, 
 18 C. 1). 93. 
 
 (/-) Wentw. Off. Ex. 194,14th 
 edit. 
 
 O
 
 562 Of the Estate of an Executor, tC'c. [Pt. ii. Bk. I. 
 
 property of her husband, it was held, that she could not be 
 allowed to object to their being taken in execution for her 
 husband's debt : for where an executrix or her husband have 
 converted the goods, it does not lie in the mouth of either of 
 them to say they are not the property of the husband, in a 
 case between the executrix and one of his creditors {q). So 
 after a lapse of six or seven years, equity will not restrain 
 by injunction a creditor of an executor from taking in 
 execution property of the testator which is assets in 
 equity (7-). However, where goods of an intestate had been 
 taken possession of, and used by an administrator, in the 
 house of the intestate, for three months after the death of 
 the intestate, Lord Tenterden held that they could not be 
 taken in execution for the administrator's own debt, the 
 time, in this case, not being sufficient to make the goods the 
 administrator's property (s) . 
 Merger : With reference also to the principle, that an executor or 
 
 administrator holds the property of the deceased in aider 
 droit merely, it has been laid down, that in respect to land, 
 no merger can take place of the estate held by a man as 
 executor in that which he holds in his own right {t). 
 However, in the former editions of this work the authorities 
 were referred to at length in support of an important distinc- 
 tion, apparently well sustained, between the cases in which 
 either of the two estates was an accession to the other by act 
 of lair, when no merger would take place, and those where the 
 accession was by act of the party, when the less estate would 
 merge. 
 
 [q) Quick v. Staines, 1 Bos. & (s) Gaskell v. Marshall, 1 Mood. 
 
 Pull. 293. & Rob. 132. S. C. 5 C. & P. 31. 
 
 (r) Ray v. Ray, Coop. Chanc. The learned judge, upon Quick v. 
 
 Cas. 264. Upon this case in his Staines being cited, observed that 
 
 judgment in Re Morgan, 18 C. D. the marriage in that case made all 
 
 93, 101, Fry, J., remarks that the difference. 
 
 " the Court thought the circuni- {t) 2 Black. Comm. 177. Jones 
 
 stances were such as to raise an v. Davies, 5 H. & X. 767. See 
 
 inference of a gift by the testator's Chambers v. Kingham, 10 C. 1). 
 
 creditor to the executor." 743.
 
 Ch. II.] Of its qiiaJity. 563 
 
 But with respect to assets the distinction was considered 
 immaterial. In case of purchase, as of descent, all, says 
 L. C. B, Gilbert, agree that the term would not be extinct 
 as to creditors. And as it would seem that in no case would 
 the term held by an executor or administrator have been con- 
 sidered to merge in equity, the learning on the subject appears 
 to be rendered obsolete by the Judicature Act, 1873, s. 25, 
 sub-sect. 4, which enacts that "there shall not after the com- 
 mencement of this Act, be any merger by operation of law 
 only of any estate the beneficial interest in which would not 
 be deemed to be merged or extinguished in equity." And 
 sub-sect. 11 provides that " generally in all matters not here- 
 inbefore particularly mentioned, in which there is any conflict 
 or variance between the rules of equity and the rules of com- 
 mon law with reference to the same matter, the rules of equity 
 shall prevail." 
 
 It may be observed in this place, with respect to the con- 
 tinuance of the privilege from merger, that, though a person 
 is originally entitled to a term, or to an estate of freehold, 
 as an executor or administrator, yet in process of time he 
 may become the owner of that estate in his own right («). 
 This happens in the case of executors when the executor is 
 also residuary legatee, and he performs all the purposes 
 of the Will, and holds the estate as legatee ; or when the 
 executor pays money of his own, to the value of the term, 
 in discharge of the testator's debts, and with an intention to 
 appropriate the term to his own use in lieu of the money : 
 And in the case of administrators, when the administrator 
 is the only person entitled to the beneficial ownership of the 
 intestate's property, or procures a discharge from those who 
 are to share that property with him, and all the debts of the 
 intestate are paid : Under these, and the like, circumstances 
 the executor or administrator will have the estate in his own 
 right ; and when he has the estate in his omu right, it will 
 be subject to merger (.r). 
 
 in) See jMst, p. 5G(), et seq. 
 
 (j:) 3 Preston on Cuiiv. '.iio, 311.
 
 ;64 Of the Estate of an Executor, &c. [Pt. ii. Bk. i. 
 
 Generally speaking, it is difficult to ascertain when the 
 character of executor or administrator ceases, and the owner- 
 ship, independent of that character, commences. Every case 
 must depend on its own circumstances. This only is certain, 
 that when the executor or administrator ceases to hold the 
 estate in that character, he will hold the same in his own 
 right, and it will be subject to merger {y). 
 
 An executor 
 cannot 
 bequeath the 
 goods of his 
 testator to a 
 legatee : 
 
 but an executor 
 in his lifetime 
 may alien the 
 assets, and 
 they cannot be 
 followed by the 
 creditors of the 
 deceased. 
 
 Grant of omnin 
 bona situ by an 
 executor : 
 
 release of all 
 demands. 
 
 Since no man can bequeath any thing but what he has to 
 his own use, an executor cannot by his Will dispose of any 
 of the goods which he has as executor to a legatee {z) : 
 although we have seen {a) that if an executor appoint an 
 executor, the goods will pass to him as the representative of 
 the first testator ; Avhile, on the other hand, an administrator 
 cannot transmit any interest in the property of the intestate 
 to his own personal representative. 
 
 But, generally speaking, an executor or administrator, in 
 his own lifetime, may dispose of and alien the assets of the 
 testator : he has absolute power over them for this pur- 
 pose, and they cannot be followed by the creditors of the 
 deceased {h). This rule, however, is subject to some qualifi- 
 cations, which will be pointed out when this Treatise arrives 
 at the general discussion of the power of executors and 
 administrators (c) . 
 
 With reference to the possession in auter droit, it has been 
 held, that if an executor or administrator grant omnia bona 
 sua, the goods of the deceased will not pass, unless the 
 grantor have no goods but as executor or administrator (d). 
 So if an executor releases all actions, suits and demands 
 
 (_!/) .3 Preston on Convey. .311. 
 
 (z) Branshy v. Grantham, 2 
 Plowd. 525. Godolpli. Pt. 2, c. 17, 
 s. 3. 
 
 (a) Ante, p. 204. 
 
 (6) By Lord Mansfield, in Whale 
 V. Booth, 4 T. R. 625, note to Farr 
 V. Newman. 
 
 (c) See^jos^ Pt. in. Bk. i. Ch. i. 
 
 (d) Hutchinson v. Savage, 2 
 Lord Raym. 1307. Wentw. Off. 
 E.x. 193, 14th edit. But an exe- 
 cutor may have trespass for taking 
 goods in his time, quare bona et 
 catalla sua, because of the posses- 
 sion : by Holt, C.J., in Knight r. 
 Cole, 1 Show. 155.
 
 C1i.il] Of its quality. 565 
 
 whatsoever, which ho had for any cause whatever, this ex- 
 tends only to such as he has in his own right, and not to 
 such as he hath as executor (r). 
 
 Since the passing of the Married Women's Proi^erty x\ct, since the 
 1882, a married woman can act as executrix or administratrix Womeu's Pro- 
 as if she were a feme sole without the control of her husband : P'^'^y ^<=*' 
 
 ' ... i;?82, no 
 
 the husband, therefore, of an executrix or administratrix has control of 
 
 .... , 1 , , husband over 
 
 smce that Act, no power oi disposition over the personal estate his wife if 
 so vested in his wife (/). Sr^- 
 
 trix. 
 
 With respect to the Poor Laws, it may be here observed. When an exe- 
 that an executor or administrator will gain a settlement by g^in k settle- 
 estate by a residence as such upon a leasehold property of ™^!|* ^^^^'^'^ 
 the deceased (g). And a settlement will equally be gained, leasehold (f 
 
 the testator, 
 
 although the tenement to which he comes as executor or &c. 
 administrator be under the value of 101. a year (Ji). So it 
 was held, that the husband of an administratrix, entitled to 
 the trust only of a term, gained a settlement by residence 
 thereon for forty days (0- And the executor to a tenant of 
 an estate under lOL a year gains a settlement by forty days' 
 residence, although he does not prove the Will ; because the 
 property vests in him from the death of the testator (k) : 
 but a next of kin of a lessee for years, in a case where 
 several are in equal degree of kindred, can gain no settle- 
 ment by residing on the land, if he does not take out letters 
 of administration ; because no right is vested in him till 
 that is done (l). Yet in the case of a sole next of kin, 
 exclusively entitled to the administration of the personal 
 
 (e) Knight v. Cole, 1 Show. purpose to create the settlement : 
 
 153, Rex V. Great Glenn, 5 B. & Adol. 
 
 (/) See ante, pp. 185, 186. 188. 
 
 (rj) Rex V. Sundrish, Burr. Sess. (i) Mursley v. Grandboroiigh, 
 
 Ca. 7. 1 i^tra. 97. 
 
 (/i) Rex V. Uttoxeter, Burr. Sess. (/.;) Rex v. Stone, 6 T. R. 295. 
 
 Ca. 538. Even though the letters (l) Rex v. Barnard Castle, 2 
 
 be taken out for a pauper ad- A. & E. 108, 
 ministrator by parish ollicers, on
 
 5GG 
 
 Of tin' Estate of an Executor, cCr. [Pt. ii. Bk. i. 
 
 3 k 4 W. IV. 
 c. 7-J. Execu- 
 tor not to be 
 protector. 
 
 estate, who had resided more tliau forty days in the parish 
 in which a k'asehokl tenement belonging to the intestate lay, 
 it was held, that she thereby gained a settlement, although 
 she had not then obtained a grant of the administration ; 
 upon the ground that the exclusive right to enforce the 
 proper means of acquiring the legal title to the property, 
 coupled with the actual enjoyment of it, gave so much 
 colour of right to reside, as to exempt such residence from 
 being considered a vagrant intrusion into a parish in which 
 the party has nothing of his oicn, within the purview and 
 scope of the Poor Laws {m). 
 
 By Stat. 3 & 4 Wm. IV. c. 74 {An Act for the Abolition of 
 Fines and Recoveries, and for the Substitution of more simple 
 modes of Assurance), s. 27, it is provided and enacted, " that 
 no bare trustee, heir, executor, administrator, or assign, in 
 respect of any estate taken by him as such bare trustee, 
 heir, executor, administrator, or assign, shall be the protector 
 of a settlement." 
 
 How the 
 effects which 
 an executor 
 takes as such 
 may become 
 his own. 
 
 It may be proper to conclude these doctrines as to the 
 difference between the interest which an executor or admi- 
 nistrator has in the goods of the deceased, and such as a 
 man has in his own proper goods, by considering more fully a 
 subject to which there has already been occasion to advert (»), 
 viz., how the property which the executor or administrator 
 has at first in his representative character, may become his 
 own to his own use, as his other goods which he has not as 
 executor or administrator (o). 
 
 As first, in regard to the ready money left by the testator ; 
 on its coming into the hands of the executor, the property 
 
 (m) Eex V. Horsley, 8 East, 405. 
 A grant of administration will not 
 operate by relation so as to vest a 
 term in the administrator from the 
 death of the intestate, and thus 
 make a person irremoveahle for a 
 time past, who during that time 
 
 was removeable : IbicJ. 409 ; and 
 see also Rex i-. Widworthy, Burr. 
 Sess. Ca. 109. 
 
 (n) Ante, p. 56.3. 
 
 (o) Wentw. Off. Ex. c. 7, p. 197, 
 14th edition.
 
 Ch. II.] 0/ iti^ qucditi/. 567 
 
 in the specific coin must, of necessity be altered : for wlien it 
 is intermixed with the executor's own money, it is incapable 
 of being distinguished from it, although he shall be account- 
 able for its value ; and therefore a creditor of the testator 
 cannot, by fieri facias on a judgment recovered against the 
 executor, take such money as de bonis testatoris in execu- 
 tion (j)). 
 
 So if the testator died indebted to the executor, or the 
 executor not having ready money of the testator, or for any 
 other good reason, shall pay a debt of the testator's with his 
 own money, he may elect to take any specific chattel as a 
 compensation ; and if it be not more than adequate, the 
 chattel by such election shall become his own (q) : Conse- 
 quently, if by such election he acquire the absolute owner- 
 ship of the chattel, and die, his executor may defend himself 
 in an action of detinue brought for the same by the sur- 
 viving executor of the first testator (/•). Hence, if an exe- 
 cutor pays with his own money the debts of the testator in 
 such order as the law appoints, to the value of the whole of 
 the personal assets, he acquires an absolute right to them ; 
 and he may dispose of them as he pleases, without being 
 guilty of any devastavit (s). 
 
 {])) Wentw. OfF. Ex. c. 7, p. 196, (s) Merchant v. Driver, 1 Saund. 
 
 14th edition. Toller, 238. It 307. Chalmer v. Bradley, 1 Jac. 
 
 would seem, however, that a credi- & Walk. 64. Vanquelin v. Bouard, 
 
 tor of the testator would be 15 C. B., N. S. 341, 372. However, 
 
 entitled, now that the Judicature in Hearn v. Wells, 1 Coll. 333, 
 
 Act has provided that where there Knight Bruce, V.-C, said he could 
 
 is a difference between the prin- not accede to the proposition that 
 
 ciples of Law and Ecjuity those of an executor has a right in equity 
 
 Equity are to prevail, to have the to acquire as a purchaser an abso- 
 
 judgment debt satisfied out of such lute title to specific chattels by 
 
 intermixed moneys to the amount intending so to deal with them, 
 
 of the testator's money : He and by paying the testator's debts 
 
 Hallett, 13 C. D. 696. to an amount exceeding the valuo 
 
 ((/) Wentw. Off". Ex. c. 7, pp. 196, of those chattels : Whatever might 
 
 199, 14th edition. Elliott v. be the rule of law upon a plea of 
 
 Kemp, 7 M. & W. 313, ^xr plejieadministravit, he a^-preliendcd 
 
 Parke, B. that not to be the rule in equity : 
 
 (r) Toller, 239. His Honour did not agree tliat in
 
 5G8 OftJic Edate of an Executor, &c. [Pt. II. Bk. i. 
 
 So, if the debt due to him from the testator amount to the 
 full value of all his effects in the executor's hands, there is 
 a complete transmutation of the property in favour of the 
 executor, by the mere act and operation of law : in the 
 former case, his election, and in the latter the mere operation 
 of law, shall be equivalent to a judgment and execution; for 
 he is incapable of suing himself {t). 
 
 So, in the case of a lease of the testator, devolved on the 
 executor, such profits only as exceed the yearly value shall 
 be held to be assets : it therefore follows, that, if the executor 
 pay the rent out of his own purse, the profits to the same 
 amount shall be his (»). 
 
 There are likewise other means of thus changing the pro- 
 perty : as if the testator's goods be sold under a fieri facias, 
 the executor, as well as any other person, may buy such 
 goods of the sheriff" ; and in case he does so, the property 
 which was vested in him as executor shall be turned into a 
 property m jure proprio {x). 
 
 Again, if the executor among the testator's goods find and 
 take some which were not his, and the owner recover damages 
 for them in an action of trespass or trover, and the judgment 
 is followed by satisfaction, in this, as in all similar cases, the 
 goods shall become the trespasser's property, because he has 
 paid for them {y). 
 
 If an executor or administrator makes an underlease of a 
 term of years of the deceased, rendering rent to himself, his 
 executors, &c., though he has the term wholly in right of the 
 intestate, yet, when he makes this lease, he has power to dis- 
 pose of the Avhole ; and by making a lease of part, he appro- 
 priates that to himself, and divides it from the rest, and has 
 
 equity, tlie executor liad, under {t) Plowd. 185. ToUer, 239. 
 
 such circiimstances, an absohite (m) Went. Off. Ex. c. 7, p. 2C0, 
 
 rigbt to the property. It may be 14th edition. Toller, 239. 
 that, since the Judicature Act, the (.') Ibid. 
 
 rule in Equity will prevail, and {y) "Went. Off. Ex. c. 7, p. 200, 
 
 the rule in law, established by the 14th edition. Toller, 239. Brins- 
 
 above cited cases, cease to be in mead v. Harrison. L. E., fi C. V. 
 
 force. .584.
 
 Cli. II.] Of its quality. 569 
 
 the rent in Lis own right : and if he dies, the rent will be 
 payable to his personal representative, and not to the adminis- 
 trator de bonis non of the original deceased (z). 
 
 As an executor, who is also a legatee, may, by assenting to 
 his own legacy, vest the thing bequeathed in himself in the 
 capacity of legatee (d), so an administrator, who is also entitled 
 to share in the residue as one of the next of kin under the Statute 
 of Distribution, may acquire a legal title, in his own right, to 
 goods of the deceased, either by taking them by an agreement 
 with the parties entitled to share with himself under the 
 statute, or even without such agreement, by appropriating 
 them to himself as his own share (h). 
 
 If one of several executors or administrators alone sell any 
 of the goods of the testator, he alone may maintain an action 
 for the price, not naming himself executor (c). 
 
 In a case where bills of exchange had been accepted by A., 
 for the accommodation of B., one of the executors of C, 
 it appeared that B., having considerable sums of money in 
 his hands belonging to C.'s estate, which were deposited in a 
 box in his possession, discounted the bills with such money, 
 by taking out of the box the requisite amount, deducting 
 the discount, and at the same time placing the bills in the 
 box : And it was held, by Alexander, C.B., that B, could 
 not sever his character of an accommodation holder of these 
 bills from his character of executor, so as to enable him and 
 his co-executor to sue as indorsees of the bills for a valuable 
 consideration (d). 
 
 (2) Drue V. Baylie, 1 Freem. 313, 2?fr Parke, B. See, however, 
 
 403. But see Cowell v. Watts, ante, note (s). 
 
 6 East, 405. Catlierwood v. Cha- (c) Godolph. Ft. 2, c. 16, s. 1. 
 
 baud, 1 B. & C. 150: infra, Ft. 11. Wentw. Off. Ex. 224, 14th edit. 
 
 Bk. III. Ch. II. ; Bk. iv. Ch. 11. Brassington v. Ault, 2 Bing. 177. 
 
 (a) See post. Ft. in. Bk. iii. S. C. 9 Moo. 340. 
 
 Ch. IV. § III. (d) V. Adams, 1 Younge, 
 
 (h) Elliott V. Kemp, 7 M. & W. 117.
 
 570 
 
 BOOK THE SECOND. 
 
 The estate of 
 an adminis- 
 trator is the 
 same as that 
 of an executor. 
 
 The whole per- 
 sonal estate of 
 the deceased 
 vests in the 
 executor : 
 
 Personal pro- 
 perty of which 
 the deceased 
 was joint 
 tenant shall 
 not go to the 
 executor : 
 
 ON THE QUANTITY OF THE ESTATE IN POSSESSION OF AN 
 EXECUTOE OK ADMINISTRATOR. 
 
 AfTEPi the administration is granted, the interest of the 
 adnainistrator in the property of the deceased is equal to and 
 with the interest of an executor (a). Executors and admi- 
 nistrators differ in little else than in the manner of their 
 constitution (/>). 
 
 The general rule is, that all goods and chattels, real and 
 personal, go to the executor or administrator (c). By the 
 laws of this realm, says Swinburne (d), as the heir hath not 
 to deal with the goods and chattels of the deceased, no more 
 hath the executor to deal with the lands, tenements, and here- 
 ditaments. In other words it may be stated, that, both at 
 law and equity, the whole personal estate of the deceased 
 vests in the executor or administrator. 
 
 The personal property in which the deceased had but a 
 joint estate or possession will survive to his companions, and 
 his executor or administrator will not be entitled to a moiety 
 of it ((•) : for a survivorship holds place regularly as well 
 between joint tenants of goods and chattels in possession or 
 in right, as between joint tenants of inheritance or free- 
 hold (/). But the wares, merchandise, debts, or duties, 
 
 (n) Touchs. 474. Blackboroiigh 
 V. Davis, 1 P. Wms. 43, by Holt, 
 C.J. 
 
 (b) Treat. Eq. Bk. 4, Pt. 2, c. 1, 
 
 s. 1. 
 
 (c) Com. Dig. Biens (C). Co. 
 Lit. 388, a. The hmres of the civil 
 law, answering to our executor or 
 administrator, succeeded in uni- 
 versum jus dtfuncti : Godolph. Pt. 2, 
 
 c. 1, s. 1. 
 
 (f?) Swinb. Pt. 6, s. 3, pi. .5. 
 
 (e) Swinb. Pt. 3, s. 6, pi. 1. See 
 fost., Pt. III. Bk. III. Ch. V. § I, as 
 to what constitutes a joint tenancy 
 in personal property. 
 
 (/) Co. Lit. 182, a. Harris v. 
 Fergusson, 16 Sim. 308. Cross- 
 held v. Such, 8 E.\ch. 825.
 
 Pt. II. Bk. II.] Partiu'i'sJnp Fropertif, 
 
 571 
 
 which joint merchants have, as joint merchants or partners, 
 shall not survive, but shall go to the executors of the 
 deceased ; and this is i^er legem mercatoriam which is part of 
 the laws of this realm, for the advancement and continuance 
 of commerce and trade, which is 2^^'o bono iiuhlico ; for the except in the 
 rule is, that jus accrescendi inter- mercatores ijro henejicio uers in trade, 
 commercii locum non liahct (g). And this part of the lex ^'^• 
 mercatoria has been extended to all traders (including manu" 
 facturers) (It), and as it should seem, to all persons engaged in 
 joint undertakings in the nature of trade (?). Thus, if two 
 take a lease of a farm jointly, the lease shall survive, but the 
 stock on the farm, though occupied jointly, shall not sur- 
 vive (j). So where two persons advance a sum of money by 
 way of mortgage, and take the mortgage to them jointly, and 
 one of them dies ; when the money is paid the survivor shall 
 not have the whole, but the representative of him who is 
 dead shall have his proportion (k). So if two or more make 
 a joint purchase of land, and afterwards one of them lays out 
 
 (g) Ibid. Rex r. Collectors of 
 Customs, 2 M. & S. 225. But with 
 respect to choses in action though 
 the right of the deceased joint 
 tenant devolves on his personal 
 representative, the remedy survives 
 to his companion, who alone must 
 enforce the right by action : See 
 post, Pt. II. Bk. III. Ch. I. § II. ; 
 Pt. V. Bk. I. Ch. I. And it has 
 been doubted whetlier the rule can 
 in any case be enforced but in a 
 Court of Equity. See Smith's 
 Mercantile Law, 149, 3rd edition. 
 Abbott on Shipping, 97, 7th edit. 
 But it was decided by the Court 
 of Exchefjuer, after full considera- 
 tion, that the title to partnership 
 chattels does not survive at law : 
 Buckley v. Barber, 6 Exch. 164. 
 In the same case it was argued 
 that the surviving partners have, 
 at law, at all evcut«, a jus din- 
 
 j)onendi as to the partnership 
 chattels, for the purpose of wind- 
 ing up the partnership debts : 
 The Court, however, doubted 
 whether they have a power to sell 
 and give a good legal title to the 
 share belonging to the executor of 
 the deceased partner when they 
 sell in order to pay the debts of 
 the partnership ; and the Barons 
 held that certainly the survivors 
 have no power to dispose of his 
 share otherwise than to pay such 
 debts. 
 
 (/i) Buckley v. Barber, 6 Exch. 
 164. 
 
 (i) Hamond v. Jetliro, 2 Brownl. 
 & Gold. 99. 
 
 (j) Jeffereys r. Small, 1 Vern. 
 217. 
 
 (/j) Fonl)l. Treat. B. 2, c. 4, s. 2, 
 note (f/). Vickers v. Cowell, 1 
 IJeav. r)29.
 
 572 Of the Quaidifi/ of an Executors Estntc. \Vt ii. Bk. ii. 
 
 a considerable sum in repairs and improvements and dies, 
 this shall be a lien on the land, and a trust for the represen- 
 tative of him who advanced it (/). But where two become 
 joint tenants, or jointly interested, in personal propertj^ by 
 way of gift, there the same shall be subject to all the conse- 
 quences of the law of survivorship {m). 
 
 In the case of Morris v. Barrett (//), the residue of real 
 and personal estates was devised by a testator to his two 
 sons as joint tenants ; and the two sons, after the father's 
 decease, and during the period of twenty years, carried on the 
 business of farmers with such estates, and kept the moneys 
 arising therefrom in one common stock, and with part of 
 such moneys purchased other estates in the name of one of 
 them, but never in any manner entered into any agreement 
 respecting such farming business, or ever accounted with each 
 other ; it was held, under the circumstances, that they con- 
 tinued, till the death of one of them, joint tenants of all the 
 property that passed by the Will of their father, but were 
 tenants in common of the after-purchased estates. 
 Eights of The general rule of law is, that on the death of one of 
 
 executor of one , . -xi i e j.'ix* t • 
 
 of several Several partners, m the absence ot express stipulation, his 
 
 partners. representative is entitled to have the whole concern wound up 
 
 and disposed of, and if the surviving partners continue the 
 trade, the representative of the deceased partner may elect 
 to take his share of the profits, or may charge the survivors 
 with interest on the amount of capital retained and used by 
 them. If the property of the partnership consists in part of 
 
 (/) Lake v. Gibson, 1 Eq. Cas. hokl in severalty : and l]is Honour 
 Alir. 291, pi. 3. See fiirther relied on the observation of Sir 
 Harrison v. Barton, 1 Johns. & H. W. Grant, in Aveling v. Knipe, 
 287, where, on the purchase by 19 Ves. 441, that equity will not 
 two persons contributing equally hold a purchase joint, if there are 
 to the costs of it, Wood, V.-C, any circumstances from wliich it 
 held that parol evidence of sur- can be collected that a joint ten- 
 rounding circumstances and of ancy was not contenijilated. 
 subsequent dealings was admis- (m) 1 Vern. 217. Post, Pt. III. 
 sible, notwithstanding the Statute Bk. in. Ch. v. § i. 
 of Frauds, to prove an intention to (n) 3 Youngc & Jerv. 384.
 
 Pt. II. Bk. II.] Partnership Pvopcvty. 673 
 
 leaseholds, the executor of the deceased partner may treat the 
 survivors as trustees, and if they renew the lease, they are 
 considered to do so for the benefit of the partnership (o) . 
 
 In some instances the title which the deceased had in In what cases 
 respect of a special property only in goods is transmissible to to the execu- 
 his personal representative. Thus if an uncertificated bank- ^?^' ^^^^^^'f 
 
 ^ '■ deceased had 
 
 rupt had acquired goods after his bankruptcy and died pos- ""'y ^ special 
 
 property. 
 
 sessed of them, having been allowed to retain possession by 
 the assignees, his executor or administrator might recover 
 them from a strangar ; for there was a good title in the 
 bankrupt as against all the world but the assignees, and this 
 title passed to his personal representative {p). But it should 
 seem that the bare circumstance of the deceased having died 
 in possession of goods will not give his executor or adminis- 
 trator a title to them even against a mere wrongdoer, if it can 
 be shown that, in truth, the title is elsewhere {q). 
 
 Where a person had the option upon the death of the 
 survivor of certain other persons, to purchase an hotel at a 
 given price, and before the death of such survivor, he died 
 leaving a Will and appointing executors, it was held that the 
 option to purchase the hotel was a right personal to the 
 testator, and could not be exercised after his death by his 
 executors (/■). 
 
 Besides the interest which an executor or administrator in An executor 
 all cases takes in the whole personal estate of the testator or ^Teaf ^^'^'^ 
 intestate, he may in some instances be seised of real property P^'^P^rty as 
 of the deceased as trustee, or be ex ofjiclo invested with a power 
 of disposing of it. The rule is that you must find out the rule that you 
 
 must find 
 
 (o) Clements v. Hall, 2 De G. 73. 
 & J. 173, 186. Townend v. Town- (^p) Fyson v. Chambers, 9 M. & 
 
 end,] Giff. 201. Wedderlmrn r. AV. 4fi0. Ante, ^. boQ. See also 
 
 Wedderbnrn, 22 Beav. 84, 8G. A.s :\Iorgan c. Knight, 15 C. B., N. S. 
 
 to the proper mode of taking tlie (j(39_ 
 
 partnership accounts of hankers, {q) Elliott v. Kemp, 7 ^I. & W. 
 
 as between a surviving partner 300. Ante, p. 556. 
 and the estate of a deceased part- (') lie Cousins, 30 C. D. 203. 
 
 ner, see Bate v. Robins, 32 Beav.
 
 574 
 
 Ojtlie Q'laiffitij o/aio Executors Estate. [Pt. ll. Bk. II. 
 
 intention of 
 testutor from 
 the wliole 
 Will taken 
 togalher : 
 
 intention of the testator from the whole Will taken together, 
 and, if it appears on the whole construction that you cannot 
 give effect to the Will, unless you give the executors a legal 
 estate, then you must hold that they have the legal estate. 
 Therefore, where a testator, after directing his debts to be 
 paid, and setting apart certain sums to provide annuities for 
 his two sons, devised and bequeathed all his real and personal 
 estate to his wife and his four daughters to be equally divided 
 between them : provided as follows, that the share of his wife 
 should be divided after her death between his four daughters, 
 or the survivors and their children : and the testator appointed 
 his wife and another executors to act jointly in carrying out all 
 the intentions of his Will, and to invest his daughters' shares 
 for their benefit and the benefit of their children ; it was 
 held upon an application under the Vendor and Purchaser 
 Act, that the legal estate in freeholds was vested in the 
 executors, who could make a good title to a purchaser (s). 
 in what cases It has been a subject of some discussion in what cases 
 the fee in trust exccutors take a fee simple, in trust to sell, under a Will, or 
 to sell, or ^^.^ invested merely with a power of disposition. The dis- 
 
 luerely a .^ i x 
 
 power of dispo- tiuctiou resulting from the authorities appears to be this : 
 that a devise of the land to executors to sell passes the 
 interest in it; but a devise that executors shall sell the land, 
 or that lands shall he sold hy the executors, gives them but 
 a power (f). An eminent writer has concluded from an 
 examination of all the cases, that even a devise of land to 
 he sold hy the executors, without giving the estate to them, 
 will invest them with a power only, and not give them an 
 interest (»)• 
 
 (s) Davies to Jones, 24 C. D. 190. 
 In Anthony v. Rees, 2 Cr. & J. 75. 
 Bayley, B., in his judgment says, 
 " when trustees are directed to do 
 anything for the performance of 
 which the legal estate is requisite 
 they are to have the legal estate." 
 
 (() All the cases will be found 
 in 1 Sugden on Powers, 128, rf seq., 
 
 Cth edit. See also Doe r. Shotter, 
 8 A. & E. 905. Accord. 
 
 (u) 1 Sug. on Povv. 133, 6th edit. 
 But see, on this subject, Co. Lit. 
 113, a, and Mr. Hargrave's note, 
 where that learned person inclines 
 to construe a devise that executors 
 shall .sell the land, as well as a 
 devise of lands to be sold bv exe-
 
 Pt. II. Bk. II.] Real Estate — Power of Sale. 
 
 575 
 
 It sometimes happens that a testator directs his estate 
 to be disposed of for certain purposes, without dechiring by 
 whom the sale shall be made. In the absence of such a 
 declaration, if the proceeds he distributable by the executor, he 
 shall have the power by implication. Thus, a power in a 
 Will to sell or mortgage, without naming a donee, will, if a 
 contrary intention do not appear, vest in the executor, if the 
 fund is to be distributable by him, either for the payment 
 of debts or legacies {x) ; and it seems, that whilst the chain 
 remains unbroken, the power, until exercised, Avill go from 
 him to his executors {y). 
 
 But in Bentham v. Wiltshire {z), where a testator be- 
 queathed an estate to his wife for life, and directed that 
 
 cutors, as investing them with a 
 fee simple, and not merely a power. 
 Powell on Devises, vol. 1, pp. 245, 
 et seq., 3rd edit., takes the same 
 view of the question as Edw. 
 Sugden. In Knocker v. Bunbury, 
 6 Bing. N. C, 306, a testator pos- 
 sessed of real and personal pro- 
 perty desired his executors, out of 
 such moneys of his as might come 
 to their hands, to purchase two 
 annuities for A. W. and her chil- 
 dren : And with regard to the rest 
 of his property, of what kind so- 
 ever, he desired his executors, after 
 payment of his debts and funeral 
 expenses, to pay and make over 
 the whole to his daughter, and to 
 the children of the said daughter 
 after her decease : The Court of 
 Common Pleas were of opinion 
 that the executors took no interest 
 in the freehold property : but that 
 they had a power to settle it upon 
 the daughter for life, witli remain- 
 der after her decease to her children 
 and their heirs. 
 
 (x) 1 Sug. on Pow. 238, 6th edit., 
 where all tlie cases are collected : 
 See also 2 Preston on Abstracts, 
 
 264. Curtis v. Fulbrook, 8 Hare, 
 278 (correcting the report of S. C. 
 8 Hare, 25) : And if the produce of 
 the real estate is blended with the 
 personal estate, the power to sell 
 will vest in the executors by im- 
 plication : Tylden v. Hyde, 2 Sim. 
 & Stu. 238. See also Forbes v. 
 Peacock, 11 Sim. 152. 12 Sim. 
 528. 11 M. & W. 630. Gosling 
 V. Carter, 1 Coll. 644. Robinson 
 V. Lowater, 17 Beav. 592. 5 De G. 
 M. & G. 272. Wrigley v. Sykes, 
 Rolls, 22 Jan. 1856, 20 Jurist, 78. 
 
 (y) 1 Sugd. on Pow. 138, 6th 
 edit. So it may be exercised by 
 the survivor of two or more exe- 
 cutors : Forbes v. Peacock, 11 M. 
 & W. 630. Where a testator directs 
 that his debts shall be paid by his 
 executors thereinafter named, and 
 in case his personal estate should 
 be insufficient charges his real 
 estate with the deficiency, an ad- 
 ministrator test, annex, has no power 
 to sell the real estate either under 
 tlie terms of the Will or by virtue 
 of 22 & 23 Vict. c. 35, s. 16. Jte 
 Clay and Tetley, 16 C. 1). 3. 
 
 (,:;) 4 Madd. 44. 
 
 executors shall 
 have a power 
 to sell land by 
 implication, 
 where the 
 proceeds are 
 distributable 
 by them : 
 
 secus, where 
 the manage- 
 ment of the 
 fund is not 
 given to them ;
 
 57G 
 
 Of the Qaantity of an Executor s Estate. [Pt. ii. Bk. ii. 
 
 whether a mere 
 charge of debts 
 on land gives 
 the executors 
 an implied 
 power of sale : 
 
 after her decease the estate should be sold to the highest 
 bidder by public auction, and the money arising from such 
 sale be disposed of among certain persons named in his Will, 
 and he appointed his wife and another person executors ; it 
 was held, that the power was not given by implication to the 
 executors ; because they had nothing to do with the produce 
 of the sale, nor any power of distribution with respect to 
 it [a). 
 
 In this case the Yice-ChaDcellor (Leach) said that the 
 power to the executors to sell is "necessarily to be implied 
 from the produce being to pass through their hands in the 
 execution of their office, as in the pajnnent of debts and 
 legacies." And accordingly before the case of Doe v. 
 Hughes (b), the law had, it appears, been considered to be 
 that the effect of a charge of the real estate with debts was to 
 give to the executors an implied power of sale (c), but in 
 that case the Barons of the Exchequer deliberately denied 
 this proposition (d). 
 
 (rt) See also Patton v. Randall, 
 
 I Jac. & Walk. 189. 1 Sugil. on 
 Pow. 138, 139, 6th edit. Alliun r. 
 Fryer, 3 Q. B. 442, 446. Accord. 
 But the aitthority of Bentham v. 
 Wiltshire was doubted by Shad- 
 well, V.-C, in Forbes v. Peacock, 
 
 II Sim. 152, 12 Sim. 528 : and his 
 Honour said (12 Sim. 536), that lie 
 did not think Sir John Leach 
 would have decided as he did in 
 that case if he had seen the 
 case of Ward v. Devon, which was 
 decided by Sir W. Grant (11 
 Sim. 160). See, however, Haydon 
 V. Wood, 8 Hare, 279, note («), 
 and Curtis v. Fulbrook, Ibid. 
 278 (correcting the report, Ibid. 
 25). 
 
 (h) 6 Exeh. 223. 
 
 (c) See 17 Beav. 601, by Eomilly, 
 M.R. 
 
 ((/) Where therefore there is a 
 
 general charge of debts, and no 
 distinct provision as to the person 
 by whom the sale is to be made, 
 then the executors take an implied 
 power to sell for the payment of 
 debts : Hodkinson v. Quinn, 1 
 Johns. & H. 309, by Wood, V.-C. 
 See also W'rigley v. Sykes, 21 
 Beav. 337. Sabin v. Heape, 27 
 Beav. 553. Cook v. Dawson, 29 
 Beav. 123, 126. See also S. C. 
 on appeal, 3 De G. F. & J. 127. 
 But see also Ibid. 128, by Lord 
 Justice Knight Bruce. But an 
 exception, it seems, prevails where 
 the direction that the debts shall 
 be paid is coupled with the direc- 
 tion that they are to paid by the 
 executor, for that in such case it 
 is assumed that the testator meant 
 that the debts should be paid only 
 out of the property which passes 
 to the executor : Cook r. Dawson,
 
 Pt. II. Bk. II. J Real Estate — Power of Sale. 
 
 517 
 
 With respect to all Wills which have come into operation ciiarge of 
 
 after 13th August, 1859, the power to sell is expressly con- legacies on 
 
 ferred on executors by Lord St. Leonards' Act [22 & 23 Vict. ""^^^-^'fH "°* 
 
 c. 35], where the testator has charged his real estate with the trustees gives 
 
 . execxitors 
 
 payment of his debts or legacies, and has not devised the power of sale. 
 hereditaments so charged to trustees. 22 & 2.3 Vict. 
 
 ^ . c. 35, ss. 14, 
 
 Even without a charge, express or implied, executors 16. 
 
 can make a good title to leaseholds, although specifically 
 devised, unless they have assented to the bequest : but in 
 this case the purchaser generally requires the concurrence of 
 the legatee (e). 
 
 Where executors in whom the legal estate is vested are 
 selling real estates charged with debts, a purchaser is not 
 bound or entitled to enquire whether debts remain un- 
 paid, unless twenty years have elapsed from the testator's 
 decease (/). 
 
 29 Beav. 126, 127. 3 De G. F. & 
 J. 127. So where the estate is de- 
 vised to another charged with the 
 payment of debts, the doctrine of 
 implying a power in the executors 
 does not apply ; for there the 
 money is to be raised through the 
 instrumentality of a sale by the 
 devisee, and that devisee is the 
 person and the only person that 
 can make a legal title : Colyer v. 
 Finch, 5 H. of L. 905 ; Corser v. 
 Cartwright, L. E., 7 H. L. 731. 
 West of England Bank v. Murch, 
 23 C. D. 138. So where a testator 
 after a charge of debts devised real 
 estates to trustees upon trusts for 
 his daughters and their families 
 and after the death of the surviving 
 daughter ujion trust to sell, with 
 power to give receipts, and to 
 apply the proceeds after satisfying 
 all incuml^rances affecting the said 
 real estates upon certain trusts ; 
 Wood, V. C, held, on demurrer, 
 that the trustees could make a 
 W.E. — VOX-. I. 
 
 good title without the concurrence 
 of the executors, though the 
 learned Judge appears to have 
 conceded that the executors would 
 have had the power to sell pre- 
 viously if they had chosen to do 
 so : Hodkinson v. Quinn, 1 Johns. 
 & H. 303. The powers, however, 
 conferred on executors by Lord 
 St. Leonards' Act (22 & 23 Vict. 
 c. 35, s. 16) do not apply to cases 
 in which the executor has re- 
 nounced and an administrator test, 
 annex, has been appointed. The 
 administrator who is not appointed 
 by the testator but is the officer of 
 the Court, has no power to sell the 
 real estate either under the terms 
 of the Will or under the above Act : 
 Be Clay and Tetley, 16 C. D. 3. 
 
 (e) Dart's Vendors and Pur- 
 chasers, 5th edit. 598. 
 
 (/) Re Tan(]^ueray Willaume 
 
 and Landau, 20 C. D. 465. The 
 
 executor who is also devisee of an 
 
 estate charged with the payment 
 
 P P
 
 578 Of the Quantity of an Executors Estate. [Pt. ii. Bk. II. 
 
 And there is no distinction whatever between a devise of 
 estates to executors subject to a charge of debts, with the 
 implied power of sale which follows from it, and a trust for 
 payment of debts where the legal estate is expressly devised 
 to trustees for the purpose of making such payment. In 
 neither case, where the death is recent, has a purchaser any 
 obligation to enquire whether the debts are paid or not, and 
 if he does not enquire, and has no notice that the debts are 
 paid, he is quite safe. 
 
 As to what words are sufficient to indicate an intention, 
 that real estate devised to executors shall be held charged 
 with the debts of the testator, by reason of a direction that 
 the executors shall pay the testator's debts, it has been held 
 that if there is a direction that the executors shall pay the 
 testator's debts, followed by a gift of all his estate to them, 
 either beneficially or on trust, all the debts will be payable 
 out of all the estate so given to them. The same rule applies 
 whether the executors take the whole beneficial interest as in 
 Henvell v. Widtaker (g), or only a life interest as in Finch v. 
 Hatte7'sley (/t), or no beneficial interest at all as in Hartland 
 v. Murrell (i). But this rule seems only to apply, where the 
 entirety of the liability has been thrown on the entirety of 
 the estate {gg). Generally the intention must be collected 
 
 of debts may be presumed by a Cartwright, L. E. 7 H. of L. 731. 
 
 loud fide purchaser or mortgagee The rule intimated in Re Tan- 
 
 of that estate to be dealing with it queray Willaume and Landau 
 
 for the purposes of the administra- {ubi sup.) that where an executor 
 
 tion and may give a valid title to is selling real estate after twenty 
 
 it. Such purchaser or mortgagee years have elapsed from the testa- 
 
 therefore will not be bound to tor's death, a presumption arises 
 
 look to the application of the that the debts have been paid and 
 
 money. Mere absence of state- the purchaser is therefore put 
 
 ment of the purpose for wliich the upon enquiry does not in general 
 
 money obtained by the sale is to apply to the case of an executor 
 
 be used will not make the pur- selling leaseholds of his testator, 
 
 chaser or mortgagee liable on the Re Whistler, 35 C. D. 561. 
 
 ground of a presumed knowledge {g) 3 Russ. 343. 
 
 that the money was to be applied (h) 3 Russ. 345n. 
 
 otherwise than for the payment of (i) 27 Beav. 204. 
 
 the testator's debts. Corser v. (i/jr) Bailey v. Bailey, 12 CD. 268.
 
 Pt. II. lik. 11. J Kqidtablc Co/ii'cr.sion. ^79 
 
 from the whole Will (hh), and it has been said that there is 
 an exception from the general rule, where there are two or 
 more executors to whom unequal benefits are given by the 
 Will {ii). 
 
 It is here necessary to observe, that a testator cannot alten A testator 
 
 .... cannot turn 
 
 the legal character of real property, by directmg, either im- his real estate 
 pliedly or expressly, that it shall be considered part of his p^^^soSf assets 
 personal estate. Accordin']cly, it may now be considered a' by directing it 
 settled rule, that where lands are devised to executors, to be otherwise. 
 sold for the payment of debts and legacies, the money arising 
 from the sale is to be considered equitable and not legal 
 assets (k). The distinction between these two kinds of assets, 
 and the consequences of that distinction, will be considered 
 hereafter, with the subject of assets generally. 
 
 It is, however, an established doctrine in Courts of Equity,|jDoctrine of 
 that things shall be considered as actually done, which ought conversion: 
 to have been done : and it is with reference to this principle, 
 that land is under some circumstances regarded as money, 
 and money as land. It was laid down by Sir Thomas Sewell, 
 M. R., in Fletcher v. Aslihurner (l), " that nothing was land con- 
 better established than this principle, that money directed to money, and 
 be employed in the purchase of land, and land directed to be ™^J7 ^^ 
 sold and turned into money, are to be considered as that 
 species of property into which they are directed to be con- 
 verted ; and this in whatever manner the direction is given ; 
 whether by Will, by way of contract, marriage articles, settle- 
 ment or otherwise, and whether the money is actually de- 
 posited or only covenanted to be paid, whether the land is 
 actually conveyed or only agreed to be conveyed. The owner 
 of the fund, or the contracting parties, may make land money, 
 or money land " {m). It follows, therefore, that every person 
 
 (hh) Wasse v. Heslington, 3 My. See Attorney- General v. Brunning, 
 
 & K. 495. 8 H. of L. 243, ante, p. 547. 
 
 (u) Harris v. Watkius, Kay, (l) 1 Bro. C. C. 497. 
 
 438. (m) See Weldale v. Partridge, 5 
 
 (k) Clay V. Willis, 1 B. & C. 3C4. Ves. 396, where Lord Alvanley 
 
 Barker v. May, 9 B. & C. 489. remarks the accuracy of thi:5 
 
 p p 2
 
 i580 Of the Qaautitij of an Executors Estate. [Pt. ii. Bk. ii. 
 
 claiming property under an instrument directing its conver- 
 sion must take it in the character which that instrument has 
 impressed upon it ; and its subsequent devolution and dispo- 
 sition will be governed by the rules applicable to that species 
 of property («). 
 
 statement of the doctrine. This 
 doctrine does not extend to the 
 interpretation of statutes imposing 
 duties on personal estate : Re 
 De Lancey, L. E., 4 Exch. 345, per 
 KeUy, C. B. 
 
 (?i) 2 Powell Dev. 61, Jarman's 
 edition. See also Sugden's Law 
 of Property, 460, and the cases as 
 to Legacy Duty collected jpost, 
 Pt. III. Bk. V. Ch. II. Where by a 
 marriage settlement freehold pro- 
 perty has had imposed upon it by 
 reason of the doctrine of equitable 
 conversion the character of per- 
 sonalty, a Will made under a power 
 contained in the settlement dis- 
 posing of it is entitled to probate 
 and the property is liable to pro- 
 bate and legacy duty : la the 
 goods of Gunn, 9 P. D. 242. An 
 absolute order for sale, made with- 
 in the jurisdiction of the Court in 
 an administration action, operates 
 as a conversion from the date of 
 the order and before any sale takes 
 place : Hyett v. Mekin, 25 C. D. 
 735. There is no equity for the 
 Crown to call for a conversion of 
 real property in order that it may 
 take the produce of it : Taylor v. 
 Haygarth, 14 Sim. 8. Henchman 
 V. Att.-Gen., 3 M. & K. 485. It 
 should be further observed that 
 though a new character may, by 
 this doctrine of equitable conver- 
 sion, have been impressed upon 
 the property, yet it is in the power 
 of any person (not personally in- 
 competent) Avho is entitled to it 
 
 absolutely, to elect to take it in its 
 actual state : Mutlow r. Bigg, 1 
 C. D. 385. Re Gordon, 6 C. D. 
 531. Meek v. Devenish, Ihid. 566. 
 Re Davidson, 11 C. D. 341. But 
 those electing must be absolutely 
 entitled ; if they have only a 
 defeasible interest in the proceeds 
 of the sale they cannot effect a 
 conversion : Sisson v. Giles, 32 
 L. J. Ch. 606. Slight circum- 
 stances, and even parol declara- 
 tions of such an intention, will be 
 sufficient for this election : (See 1 
 Roper on Leg. 473, 3rd edit. Matson 
 V. Swift, 8 Beav. 375, per Lord 
 Langdale, M. R. :) but they must 
 be unequivocaL Clianging the 
 security of the money to be laid 
 out in land will effectuate the pur- 
 pose : Lingen v. Sowray, 1 P. Wms. 
 172 ; or bequeathing it as person- 
 alty ; Triquet v. Thornton, 13 Ves. 
 345 ; or making a lease of the 
 estate directed to be sold : Crab- 
 tree V. Bramble, 3 Atk. 680. Pre- 
 serving the property in its actual 
 state may be sufficient : Dixon v. 
 Gayfere, 17 Beav. 433. Mutlow v. 
 Bigg, 1 C. D. 385. Re Gordon, 
 6 C. D. 531. But the mere cir- 
 cumstance of the funds remaining 
 unconverted in the hands of the 
 person entitled to it at all events 
 is not, unaccompanied by length 
 of time, evidence of his intention 
 to alter its new character : Kirk- 
 man V. Miles, 13 Ves. 338. Nor 
 is continued receipt of rent by the 
 testator's widow of property, let
 
 Pt. II. Bk. II.] Equitable Conversion. 
 
 581 
 
 Again, since equity looks upon things agreed to be done, land con- 
 as actually performed, it follows, that, when a real estate sold : 
 is contracted to be sold, the vendor is regarded in equity 
 as a trustee for the purchaser of the estate sold (o), and 
 the purchaser as a trustee of the purchase-money for the 
 vendor (p). Hence, the death of the vendor or vendee before 
 the conveyance {q), or surrender (r), or even before the time 
 agreed upon for completing the contract, is in equity im- 
 material (s). If the vendor die before the payment of the 
 purchase-money, it will go to his executors and form part of 
 his assets {t) : and even if a vendor reserve the purchase- 
 money payable as he shall appoint by an instrument executed 
 in a particular manner, and afterwards exercise his power, 
 the money will, as between his creditors and appointees, be , 
 assets (m). So if the contract be valid at the death of the' 
 vendor, but the purchaser loses his right to a specific per- 
 formance by subsequent laches, the estate belongs to the 
 
 for a term of years by a testator 
 by lease running for twenty years 
 after his death, evidence of an 
 election by the widow, who died 
 during the term, to take such pro- 
 perty as real estate, if the tenant 
 has by the lease an option to pur- 
 chase the reversion at any time 
 during the term : Re Lewis, 30 
 C. D. 654. 
 
 (o) Atcherley V. Vernon, 10 Mod. 
 518. Davie v. Beardsham, 1 Chan. 
 Cas. 39. Sugden's Vendors, &c., 
 Ch. 4, s. 1. 
 
 ( p) Green v. Smith, 1 Atk. 572. 
 Pollexfen v. Moore, 3 Atk. 272. 
 
 {q) Paul V. Wilkins, Toth. 106. 
 
 (r) Barker v. Hill, 2 Chanc. 
 Rep. 218. 
 
 (s) Sugden, uhi supra. In the 
 case of Hudson v. Cook, L. E., 13 
 Eq. 417, where an intestate was at 
 the time of his death under a 
 contract to purchase realty which 
 the vendor might have specitically 
 
 enforced, but which he afterwards 
 rescinded under a power thereby 
 reserved to him, it was held that 
 the heir-at-law of the intestate 
 was entitled to receive the pur- 
 chase money out of the intestate's 
 personal estate. 
 
 The rents which accrue between 
 the vendor's death and the time 
 for completing the contract belong 
 to the vendor's heir and not to his 
 executor : Lumsden v. Eraser, 12 
 Sim. 263. See also Shadforth v. 
 Temple, 10 Sim. 184. 
 
 {t) Sikes V. Lister, 5 Vin. Abr. 
 541, pi. 28. Baden v. Earl of 
 Pembroke, 2 Vern, 213. Bubb's 
 case, 2 Freem. 38. Smith v. Hib- 
 bert, 2 Dick. 712. Foley v. Per- 
 cival, 4 Bro. C. C. 429. Sugden, 
 uhi supra. Eaton v. Sanxter, 6 
 Sim. 517. 
 
 {u) Thompson v. Towne, 2 Vern. 
 319. Sugden, ?(6i supra.
 
 land: 
 
 582 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 next of kin and not to the lieir-at-law (r). Again, if a man 
 devises his real estate and afterwards sells it, and the pur- 
 chase is not completed until after his death, the purchase- 
 I money belongs to his personal representatives, notwithstand- 
 ing the stat. 1 Vict. 26, s. 23, and not to his devisee (?/). 
 So where after making a Will devising a specific estate and 
 bequeathing the personal residue to other persons, a testator 
 entered into a contract, giving an option of purchase over 
 part of the estate, which option was exercised after the death ; 
 it was held by Wood, V.-C, that the property was converted, 
 from the date of the exercise of the option, and went to the 
 residuary legatee {z). 
 money cove- « On the same principle, money covenanted to be laid out 
 
 nanted to be i i • / s -vt -n • 
 
 laid out in in land, will descend to the heir(rt)- -Nor will it make any 
 difference that the covenant is a voluntary one : Therefore, 
 if a man, without any consideration, covenant to lay out 
 money in a purchase of land to be settled on him and his 
 heirs, a Court of Equity will compel the execution of such 
 contract, though merely voluntary. But where a person 
 covenants to lay out money in land, and afterwards himself 
 becomes solely entitled to it, so that the obligation to lay 
 out, and the right to call for the money, centre in the same 
 
 (x) Curre v. Bowyer, 5 Beav. 6, 1 Siiiale & G. 32 ; Frewen v. 
 
 note [h). Frewen, L. E. 10 Ch. 610, and 
 
 (?/) Farrer v. Wintertun, 5 Beav. the cases cited jposi, p. 590. ^^ua^ "^C^^-JAi^ 
 1. See also Moor u. Eaisljeck, 12 (k) Weeding v. Weeding, 1 Johns, ' c^ ^,^ 
 
 Sim. 123. The law is the same & H. 424. 
 
 where the sale was by contract (a) Edwards i-. Countess of War- 
 under the compulsory powers of a wick, 2 P. Wins. 171. The jno- 
 Railway Company : Be Manches- ceeds of realty sold under the 
 ter and Southport Railway, 19 Settled Estates Acts, and not yet 
 Beav. 365. See also Richards v. converted into realty, have not 
 Attorney-General of Jamaica, 6 become personal property in re- 
 Moo. P. C. 381. On the general spect of which letters of adminis- 
 question whether the proceeds of tration can be granted, such pro- 
 compulsory sales, under Acts of perty being realty converted into 
 Parliament, are to be considered personalty to be again changed 
 real or personal estate, see Re into realty : In the goods of 
 Horner, 5 De G. & Sm. 483. Re Lloyd, 9 P. D. 65. 
 Tavlor. 9 Hare. 596. Ti"'- Stewart
 
 Pt. II. Bk. II.] Equitable Conversion. ^^^ 
 
 person, the money, it should seem, is considered as discharged; 
 as where a man, on his marriage, covenants to lay out a sum 
 of money in the purchase of lands to be settled for the use 
 of himself for life, remainder to his intended wife for life, 
 remainder to the first and other sons of the marriage in tail, 
 remainder to the daughters in tail, remainder to his own 
 right heirs, and the husband does not lay out the money, 
 and survives his wife, who dies without issue ; it has been 
 held that the money, though once bound by the articles, 
 became free again by the death of the wife without issue, 
 and the consequent failure of the objects of the several 
 limitations, and was, therefore, at the death of the settlor, 
 his personal estate {h). 
 
 So a testator has the power, by his Will, to change the conversion 
 
 T, . T "out and out'' 
 
 nature of his real estate, to ail mtents and purposes, so as by Will : 
 to preclude all questions between his real and personal 
 representatives after his death (c) : This has been some- 
 times described as "a conversion out and out " ((/) : And 
 when it clearly appears to have been his intention thus to 
 impress on it the character of personal estate to all intents 
 and purposes, the mere appointment of an executor will be 
 sufficient to carry that property to him {e), either for his own 
 benefit, in cases where he is beneficially entitled to the 
 personal estate ; or as a trustee for the next of kin, in cases 
 where he holds the personal estate on the like trust (/). But 
 this doctrine has been qualified by modern decisions ; and 
 it is now fully established, that in order to exclude the heir, 
 it is not enough that the testator shows an intention that 
 
 (6) Chichester v. BickerstaflP, 2 C. 530. Toml. edit. See 2 Powell, 
 
 Vera. 295. This decision was Dev. 73, Janiian's edition, 
 
 questioned by Lord Talbot in {<:) .Johnson v. Woods, 2 Beav. 
 
 Lechmere v. Lechiuere, Cas. temii. 409, 413, by Lord Langdale. 
 
 Talb. 90, and by Sir J. .Jekyll in (r/) As to this expression, see 10 
 
 Lechmere v. Earl of Carlisle, 3 P. Beav. 175; 12 Beav. 508. 
 
 Wms. 221 ; but confinned by Lord (e) By Sir Wni. Grant, in Berry 
 
 Thurlow, in Pulteney v. Lord Dar- v. Usher, 11 Ves. 91. 
 
 lington, 1 Bro. C. C. 238, and the (/) See infra, Pt. iii. Bk. iii. 
 
 determination of the House of Ch. v. j^ ii., and 1 Eop. Leg. 455, 
 
 Lords in the same casL*, 7 Bro. P. 3rd edition.
 
 584 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 his real estate should become money after his death ; it must 
 also be apparent that he meant it to be treated as if it had 
 been personal estate before his death : For if the property 
 in question was real estate at his death : the onus is on the 
 next of kin to show a devise of it in his favour : And though 
 the Will may determine in what quality the property shall 
 
 j, be taken by those on whom it may devolve, yet if it does 
 
 ' not also determine who are the persons to take, the original 
 right of the heir at law must prevail (//). Therefore, the 
 
 \ testator's declaration, however explicit, that the estate shall 
 be absolutely converted, p. g., a direction that it shall be 
 sold and deemed part of his personal estate, will not exclude 
 the heir ; because such a direction does not, generally 
 
 J speaking, amount to a gift by implication to the next of 
 kin {li) : And the law is the same, even where the direction 
 is accompanied by a declaration, that the proceeds of the 
 land to be converted shall not, nor shall any part thereof, in 
 any event lapse or result for the benefit of the heir (i), or 
 where the direction itself is, that the proceeds shall be con- 
 sidered, " to all intents and purposes," as part of the personal 
 estate (k) : except, perhaps, where there is no further dis- 
 position ; in which case it might be inferred that such a 
 direction was intended to operate as a gift to the next of 
 kin (/). 
 conversion for It is plain, therefore, that where the conversion of land 
 
 particular \ . . , . , , ' ' 
 
 purposes mto money is dn-ected by the testator for a particular 
 
 w ich fai : purpose, which J ails, (as in the case of the death of a party 
 
 intended to be benefited,) so much of the estate, or of its 
 
 (rj) Fitcli r. "Weber, 6 Hare, 145, 124. Fitcli v. Weber, 6 Hare, 145. 
 
 149. A different view must be Bromley v. Wriglit, 7 Hare, 334. 
 
 taken where the question arises on Shallcross v. Wright, 12 Beav. 505. 
 
 a deed which has altered the charac- Taylor v. Taylor, 3 De G. M. & G. 
 
 ter of the property before the death 190 (overruling Phillips v. Phil- 
 
 of the author of the deed : Griffith lips, 1 M. & K, 649). 
 
 V. Ricketts, 7 Hare, 299. Biggs v. (i) Fitch r. Weber, 6 Hare, 145. 
 
 Andrews, 5 Sim. 424. (k) Robinson v. Governors cf 
 
 (/^) Johnson v. Woods, 2 Beav. the London Hospital, 10 Hare, 19. 
 
 409. Flint r. Warren, 10 Sim. (/) TUd. 27.
 
 Pt. II. Bk. II.] Eqmtahle Conversion. 
 
 585 
 
 produce, as remains undisposed of, will result to the h eir {)n). 
 If, on the other hand, there is a conversion_of ^personal estate 
 into real estate, and there is an ultimate limitation which fails 
 to take effect, the interest which fails results for the benefit 
 of the persons entitled to the personal estate, i.e., the persons 
 who take under the Statute of Distributions as next of kin (w). 
 And it is further established, that where a testator directs '■ mixed fund 
 
 1 • 1 1 IT T,i • T e T • • c from produce 
 
 his real estate to be sold, and the mixed lund arising trom of sale of real 
 the produce of the real estate and tte personal estate to be ^g^^^^'^al"^ 
 applied to certain specified purposes; if any part of_the i estate, 
 d^osition fails, either by lapse or otherwise, then to the^ 
 proportional extent in which the real es tate would have con- 
 tributed to that disposition, it is to be considered as failing 
 for the benefit of the heir-at-law, and as so much real estate 
 in that evenVundisposed of (o). A different point arises, 
 
 (m) Ex parte Pring, 4 Y. & Coll. 
 Exch. 507. 
 
 {n) Hereford v. Ravenhill, 1 
 Beav. 481 ; 5 Beav. 51. Cogan v. 
 Stephens, 5 L. J. Ch. 17. If tlie 
 heir at law becomes entitled to an 
 undisposed-of interest in the shape 
 of personal estate, and dies, there 
 is no equitable reconversion as be- 
 tween his real and personal repre- 
 sentatives, and consequently his 
 executor takes it as part of his 
 personal estate. On the other 
 hand, if the next of kin having 
 become entitled to freehold estate 
 dies, there is no equity to change 
 the freehold estate into anything 
 else on his deatJi. It will go to 
 the devisee of the real estate or to 
 his heir at law if he has not de- 
 vised it, and will pass as real 
 estate. The principle is that where 
 you trace property into a man 
 there is no equity between his 
 different classes of representatives 
 as to altering the position in which 
 that property is. See Curtcis v. 
 
 Wormald, 10 C. D. 172, overruling 
 
 Reynolds v. Godlee, Johns. 582. 
 A decree for the sale of real estate 
 having been made in a partition 
 suit, the property was sold, and 
 the proceeds of the sale were paid 
 into Court. Three of the persons 
 entitled to shares in the property 
 died intestate before the money 
 was distributed, leaving their father 
 their heir at law and sole next of 
 kin. He took out administration 
 to each of them, and then died 
 intestate, and it was held that the 
 father took his children's shares 
 of the money as their heir at law, 
 but that he took them as juouey, 
 and that on his death they passed 
 to his personal representative and 
 not to his heir at law. Mordaunt 
 V. Benwell, 19 C. D. 302. 
 
 (o) Ackroyd v. Smithson, 1 Bro. 
 C. C. 503. Johnson v. Woods, 2 
 Beav. 409. Hopkinson v. Ellis, 10 
 Beav. 169. Taylor v. Taylor, 3 De 
 G. M. & G. 190. Cooke v. Dealey, 
 22 Beav. 19(). Edwards v. Tuck
 
 586 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 where there is a general residuary bequest of personal estate, 
 in the same Will in which there is a direction for the con- 
 j| version of the real estate. In such a case it should seem, 
 that if there is a declaration in the Will that the money to 
 arise from the sale shall be deemed part of the testator's per- 
 sonal estate, the undisposed of residue of the proceeds will 
 pass under the gift of the residue, but not, generally speaking, 
 wdthout such a declaration ( j>). As to specific sums given out 
 of the proceeds, it has been a subject of controversy, whether 
 the circumstance of the produce of the real estate being 
 blended by the testator with the general personal estate in 
 one residuary gift, constitutes a ground for excluding the heir 
 from lapsed or void legacies by applying to the mixed fund the 
 rule applicable to personalty {viz., that the residuary legatee 
 takes what is not effectually disposed to other persons) (7). 
 A very eminent writer (?) has expressed his opinion that it is 
 difficult to discover any solid reason why the blending of the 
 two funds should produce this consequence : But he further 
 observes that the state of the authorities is not such as to 
 justify the hope of all litigation being at an end on this per- 
 plexing subject. 
 
 Whether the property so resulting to the heir shall be 
 considered as land or money in his hands, is a question of 
 some nicety. The principle seems to be, that where the 
 purpose of the testator still requires a sale of the whole land, 
 and there is only a partial disposition of the produce, the 
 surplus belongs to the heir as money and not land, and will 
 go to his personal representative ; but where no purpose of 
 the devisor demands, in the events that have happened, that 
 
 23 Beav. 268. Bective v. Hodgson, Court v. Buckland, 1 C. D. 605. 
 
 10 H. of L. 656. Salt v. Chattaway, 3 Beav. 576. 
 
 {p) See 1 Jarman on Wills, 531, As to Wills made or republished 
 
 et seq., 2nd edit. See page 643, since tlie Wills Act, 1 Vict. c. 26, 
 
 4th edition. see sect. 25 of that statute. Ante, 
 
 (5) The principal modern cases Preface, 
 on the subject are Amphlett v. (r) Jarman on Wills, vol. i. pp. 
 
 Parke, 2 Russ. & M. 221. Green 636-644, 4th edition. 
 V. Jackson, ihid. 238. See also
 
 Pt. II. Bk. II.] Equitable Conversion. 
 
 587 
 
 the whole land shall be converted into money, there the heir 
 shall take the resulting property as land, and it shall descend 
 as such to his heir. Thus where a devisor directs his land 
 to be sold, and the produce divided between A. and B., the 
 obvious purpose of the testator is, that there shall be a sale 
 for the convenience of division ; and if A. dies in the life- 
 time of the devisor, and the heir stands in his place, the 
 purpose of the testator still applies to the case ; therefore the 
 heir will take the share of A. as money and not as laud : 
 But if A. and B. both die in the lifetime of the testator, and 
 the whole interest in the land descends to the heir, the pur- 
 pose of the testator, that there shall be a sale for the con- 
 venience of division, has no application, and the heir will, 
 therefore, take the whole interest as land (s). So where a 
 
 (s) Smith V. Claxtoii, 4 Madd. 
 492, 493. Davenport v. Coltman, 
 12 Sim. 610, 613. See also on 
 this subject, Hewit v. Wright, 1 
 Bro. C. C. 86. Wright v. Wright, 
 16 Ves. 188. Dixon v. Dawson, 2 
 Sim. & Stu. 340. Jessopp v. Wat- 
 son, 1 Myhi. & K. 665. Hatfield 
 V. Pryme, 2 Coll. 204. Burley 
 V. Evelyn, 16 Sim. 290. In re 
 Cooper's Trusts, 4 De G. M. & G. 
 757. Wall V. Colshead, 2 De G. 
 & J. 683. Clarke v. Franklin, 4 
 Kay & J. 237. Bagster v. Facke- 
 rell, 26 Beav. 469, in which last 
 case the testator expressly directed 
 a conversion for the purpose of 
 giving a life interest to his widow, 
 and after her death there was a 
 gift to a charity which was void, 
 and it was held, that the heir of 
 the testator took the produce (sub- 
 ject to the life estate) in the cha- 
 racter of personalty. It should 
 be observed tliat "conversion must 
 be considered in all cases to be 
 directed for the ])urposes of the 
 Will, and is liinitc(l liy ihc pnr- 
 
 poses and exigencies of the Will. 
 If therefore the real estate is di- 
 rected to be sold with a view to a 
 disposition made by a Will, and 
 that disposition fails, although the 
 real estate has de facto been sold, 
 yet the proceeds will retain the 
 quality of real estate for the pur- 
 pose of ascertaining the owner- 
 ship, i.e. the title of the heir, al- 
 though it is true that when you 
 pay it over to the heir, in the 
 hands of the heir it has the cha- 
 racter of money, and no longer the 
 character of real estate. So, in 
 like manner, if money is directed 
 to be invested in land, and the 
 land is disposed of by the Will, 
 and the money is so invested, but 
 the disposition fails, the invest- 
 ment thus made for the purposes 
 of the Will has no effect in alter- 
 ing the quality of the property ; 
 but the property, even in the shape 
 of lands, retained its pristine and 
 original quality of personal estate 
 for the purposes of determining 
 tlic owncisliii) : " Bective v. Hod<r-
 
 588 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 Real estate 
 purchased with 
 partnership 
 capital. 
 
 Property 
 altered in 
 nature by 
 trustees of an 
 infant : 
 
 testator devises his real estate in trust to be sold to pay 
 debts and legacies, and dies intestate as to the excess, his 
 heir will take it as land {t)-. In such a case also if any of the 
 legacies lapse, they will result to the heir as land ; for the 
 purpose of the testator does not require a sale of so much of 
 the real property (u). 
 
 It has been laid down that in equity all property, whether 
 real or personal, whatever may be its nature, purchased with 
 partnership capital for the purposes of the partnership trade, 
 continues to be partnership capital, and to have as between 
 the real and personal representative of a deceased partner the 
 quality of personal estate (.r) . Where, however, a new partner 
 was taken into the firm, and the real property continued to 
 be used for the partnership purposes, but a rent was paid for 
 it, under the terms of the partnership, to the old partners by 
 the new firm, it was held that, on the death of one of the old 
 partners, the property was to be considered as part of his real 
 estate {y). 
 
 Another example of laud being considered as money, and 
 vice versa, may be found in the cases where guardians or 
 trustees alter the nature of the property committed to them. 
 Thus the lands purchased by the guardian of an infant with 
 his personal estate will, in case of his death during his 
 minority, be considered still as his personal property {z). 
 So where the trustees of an infant's estate having a con- 
 
 son, 10 H. of L. 667, by Lord West- 
 bury, C. The cases cited in the 
 earlier part of this note appear to 
 establish the distinction, that if 
 all the purposes of an intended 
 conversion of land into money 
 fail, the conversion fails, and the 
 heir would take such unconverted 
 estate as land ; but that if there is 
 only a partial failure, the heir-at- 
 law would receive the benefit of 
 such partial failure and take the 
 property as moneys, and not as 
 
 (0 By Sir W. Grant, in Wright 
 V. Wright, 16 Ves. 191. 
 
 {u) See 1 Eop. Leg. 471, 3rd 
 edition. 
 
 (x) Darby v. Darby, 3 Drewr. 
 495. And see the express enact- 
 ment to this effect contained in 
 the new Partnership Act, 1890 
 (53 & 54 Vict. c. 39, s. 22), ante, 
 p. 548, note (w). <^ Aj-iu ^x 
 
 (i/) Rowley v. Adams, 7 Bear, 
 548. 
 
 (z) Gibson v. Scudamore, 1 Dick. 
 45.
 
 Pt. II. Bk. II. j Eqrdtahle Conversion. 589 
 
 siderable sum of money in their hands, out of the profits of 
 his estate, laid it out in a purchase of lands lying near the 
 estate, with the consent of his guardian, and by the con- 
 veyance to the trustees, it was declared that they stood 
 seised in trust for the infant, in case, when he came of age, 
 he should agree to it ; the infant dying within age, the 
 trustees were held accountable to the administrator of the 
 infant for the sum laid out, and his heir Avas declared to 
 have no title to the land {a). So where an executor in trust 
 for an infant of a lease for ninety-nine years, determinable 
 on three lives, on the lord's refusal to renew but for lives 
 absolutely, complied with his requisition, and changed the 
 years into lives ; on the infant's dying under twenty-one, this 
 was held to be a trust for his administrator, and not for his 
 heir (&). 
 
 Again, where the committee of a lunatic invested part of by committee 
 his personal estate in the purchase of lands in fee, it was 
 held that this should be taken as personal estate, and at his 
 death should not go to his heir-at-law (c). So where the 
 grantee of the custody of a lunatic, with the rents and 
 profits of the estate purchased lands, the lunatic dying, the 
 question w^as between the heir and administrator, who 
 should have the benefit of the purchase ; and the Court was 
 of opinion, that the administrator should have it, and not 
 the heir ; for if the money had not been laid out, it had 
 been clear that the administrator should have had it ; and 
 if laying out of the money would alter the case, then it 
 would be in the power of the grantee of the custody to 
 prefer the heir or the administrator as he pleased {d). But 
 it must be observed, that in the management of a lunatic's 
 estate, it is his benefit, solely, which is considered ; and, 
 therefore, if it be clearly for his advantage, that the nature 
 of one part of his estate should be altered for the improve- 
 
 (a) Lord Wincliolsea v. Nor- (c) AwJley v. Awdley, 2 A't'in. 
 
 clifle, 1 Vern. 435. 192. 
 
 {b) Witter v. Witter, 3 P. Wms. {d) Lord PI yiuouth's case, 2 
 
 99. Freem. 114.
 
 ;9o 
 
 Of the Qmintitifofati Kir.ottor's Estate. \ Pt. II. Bk. II. 
 
 ment of the other, such alteration will be directed by the 
 Court of Chancery (c) ; and when such alteration is made, 
 there is no equity between the real and personal represen- 
 tatives, at the lunatic's death, to have the nature of the 
 property restored (./'). 
 
 In the case of Att.-Gen. v. Aileshury (//), where money of 
 a lunatic was invested by his committees by order of the Lords 
 Justices having jurisdiction in lunacy, in purchase of lands, 
 which, under their lordships' directions, w'ere conveyed to the 
 committees, " their heirs and assigns upon trust for " the 
 lunatic, "his executors, administrators, and assigns," with a 
 declaration that the land so conveyed (and all others to be 
 purchased in lieu of them under any exercise of certain 
 powers of sale and re-investment which were contained in the 
 deed) should "to all intents and purposes be considered as 
 part of the personal estate of " the lunatic, it was held by the 
 House of Lords, upon the death of the lunatic, who never 
 recovered, that the value of the lands was part of the personal 
 estate of the lunatic, and liable to probate duty. 
 53 Vict. c. 5. By stat. 53 Vict. c. 5, s. 117, certain provisions are made 
 for the sale or mortgage or other disposition of the lunatic's 
 property for debts, maintenance, and other purposes. By 
 sect. 123 (1) it is provided that " The lunatic, his heirs, 
 executors, administrators, next of kin, devisees, legatees, and 
 assigns, shall have the same interest in any moneys arising 
 from any sale, mortgage, or other disposition, under the 
 powers of this Act, which may not have been applied under 
 such powers, as he or they would have had in the property 
 the subject of the sale, mortgage, or disposition, if no sale, 
 mortgage, or disposition had been made, and the surplus 
 moneys shall be of the same nature as the property sold, 
 mortgaged, or disposed of." And sub-sect. (2) provides for 
 
 (e) Ez parte PhiUips, 19 Ves. C. D. 622. 
 123. {g) 12 App. Cas. 672, reversing 
 
 (/) Oxenden v. Lord Compton, S. C. 16 Q. B. D. 895, and 
 
 2 Ves. Jun. 69. Ke Leeming, 3 affirming S. C. 14 Q. B. D. 408. 
 De G. F. & J. 43. Ee Freer, 22
 
 Pt. II. Bk. ii.J Eqiutahlc Conversioa. 591 
 
 the disposition of moneys arising in certain ways as between 
 the real and personal representatives of the lunatic. 
 
 In Ex parte Flamank (h), Lord Cranworth, V. C, held Compulsory 
 
 SSI 16 or 
 
 that money paid into court by a Kailway Company for land lunatic's land 
 taken under the Lands Clauses Act (7 & 8 Vict. c. 18), from clauses Act. 
 a person who was in a state of mental imbecility, and who 
 continued in that state till his death, but was not the sub- 
 ject of a Commission of Lunacy, was not to be reinvested 
 in or considered as land, but to be paid to his executors ; 
 for that the effect of the 7th section of the Act was to make 
 the contract as good as if he had been compos mentis. And 
 his Lordship distinguished the case from Tlie Midland 
 Counties Raihcay v. Oswin {i), where Knight Bruce, V, C, 
 had come to a contrary decision, inasmuch as his Honor's 
 decision turned on the express terms of the local Act on 
 which the case before him arose (k). 
 
 In pursuing the complicated inquiry, of what shall be What is per- 
 
 . ^ sonal estate. 
 
 accounted personal estate, it may be advisable to consider 
 the subject in the divisions employed by Godolphin and the 
 author of the Office of an Executor, viz., first to divide the 
 effects of the deceased into things actually in his possession, 
 and things not so, usually called Glioses in action ; — and 
 to subdivide the first class into chattels real, and chattels 
 personal. 
 
 (/t) 1 Sim. N. S. 260. 3 Drew. 726, for instances where 
 
 (i) 1 Coll. 80. money paid into Court under cer- 
 
 {k) See Cramer's case, 1 Smale tain local acta was treated as 
 
 & G. 32, and Re Harrop's Estate, realty.
 
 592 
 
 CHAPTER THE FIRST. 
 
 OF THE INTEREST OF THE EXECUTOR OR ADMINISTRATOR 
 IN THE CHATTELS REAL OF THE DECEASED. 
 
 WLat are 
 chattels real. 
 
 SECTION I. 
 
 The Executor's or Administrator's Bhiht to Chattels Heal, 
 
 generally, 
 
 JLHE general rule is, that chattels real shall go to the 
 executor or administrator, and not to the heir. Chattels 
 real are such as concern or savour of the realty [a) ; or, in 
 other words, they are chattel interests issuing out of, or 
 annexed to, real estates (h). Thus, while the military 
 tenures subsisted, wardship in chivalry was accounted such an 
 interest, and accrued to the executor or administrator, and 
 not to the heir ; because it uas in respect of a tenure of land 
 or other hereditament, and was for years, viz., during the 
 minority, or till marriage had (c). 
 
 Next presen- 
 tation to a 
 church. 
 
 If one be seised in his natural capacity of an advowson 
 in gross, or in fee appendant to a manor, and the church 
 becomes void, the void turn is a chattel personal, like rent 
 due, or any other fruit fallen ; and if the patron dies before 
 he presents, the avoidance does not go to the heir, but to the 
 executor {d) : And the heir in tail shall not have a pre- 
 sentment fallen in the life of the tenant in tail, but his 
 
 (a) Co. Litt. 118, 6. 
 
 (6) 2 Black. Comm. 386. 
 
 (c) Godolphin, Pt. 2, c. 13, s. 2. 
 Wentw. Off. Ex. 126, 14th edition. 
 So a villain for years (as by grant 
 fur a term from him that had the 
 
 inheritance) was a chattel real : 
 Ibid. 
 
 (d) F. N. B. 33, P. The Queen 
 and Archbishop of Canterbury's 
 case, 4 Leo. 109. Co. Litt. 388, a. 
 Wats. C. L. 72, 4th edition.
 
 w 
 
 Cli. I. § I.] Chattels Real — Church P rescntations. 593 
 
 executor (e). Again, if the patron, whether a natural or 
 politic person, grant the next presentation of a church before 
 avoidance, to D., in this case, if D. dies, his executor shall 
 have it as a chattel, and not the heir (/) ; for it is a chattel 
 real, till a vacancy has happened, and afterwards the vacancy 
 turns it into a chattel personal (//). Nor will it differ the 
 case, if the grant is to the grantee and his heirs ; for where 
 the thing is a chattel, the word "heirs " cannot make it an 
 inheritance (h). Likewise, if a man grants the two next 
 presentations of a church, those are chattels, and if the 
 grantee dies, the executor shall have them, and not the 
 heir (i). So of an advowson granted to one and his heirs for 
 100 years (k). Again, if a church become void during the 
 life of a husband, who is tenant by the curtesy, and he die 
 before the church is filled, the husband's executor shall have 
 the turn, and not the wife's heir (l). 
 
 And it is now settled that the executor has the same right, 
 where a person seised of an advowson in a j)olitic capacity 
 dies during a vacancy. Thus, in a case in K. B., in error 
 from the Common Pleas, it was held by Littledale, Holroyd, 
 and Bajdey, Justices, (Lord Tenterden, C. J., dis sentient e), 
 that where a prebendary, having an advowson of a rectory in 
 right of his prebend, died while the church was vacant, his 
 personal representative had the right of presentation for that 
 turn ; and the judgment of the Court of Common Pleas was 
 reversed {m). This decision of the K. B. was afterwards 
 affirmed in the House of Lords {n). 
 
 (e) F. N. B. 34. Godolph. Pt. 2, edition. 
 
 c. 13, s. 6. (l) Wats. C. L. 71, 4th edit. 
 
 (/) Godolph. Pt. 2, c. 13, p. 3 : (m) Rennell v. Bishop of Lin- 
 ad inittcd hy Lord Tenterden, in coin, 7 B. & C. 113. In the 
 Rennell v. Bishop of Lincoln, 7 Common Pleas, Gaselee, J., dis- 
 B. & C. 113, 193. sented from Burrough and Park, 
 
 (g) Wentw. Off. Ex. 131, 132, Jnstices, and Best, C.J. : see 3 
 
 14th edition. Bingh. 223. 
 
 (h) Bro. Chattels, jd. 6. (n) 8 Bingh. 490. 1 Clark & F. 
 
 (i) Bro. Chattels, pi. 20. 527. 
 
 {k) Wentw. Off. Ex. 130, 14th 
 
 W.E. VOL. I. Q Q
 
 594 Oj the Quantity of an Executor's Estate. [Pt. ii. Bk. il. 
 
 But if the incumbent of a church be also seised in fee of 
 the advowson of the same church and dies, his heir, and not 
 his executor, shall present ; for although the advowson does 
 not descend to the heir till after the death of the ancestor, 
 and by his death the church is become void, (so that the 
 presentation in this case may be said to be severed from the 
 advowson before it descends to the heir, and to be vested in 
 the executor), yet both the descent to the heir and this fall 
 of the avoidance happened all in one instant : and where 
 two titles concur, the elder right shall be preferred (o). In 
 the case of an advowson of a donative benefice where A. B., 
 being seised, the church in his lifetime became void; then 
 A. B. died, and the executors brought a quare impedit ; after 
 two arguments in C. B., the whole Court was clearly of 
 opinion that the right of donation descended to the heir of 
 A. B., and that the executor had no title, as he would have 
 had, if it had been a presentative benefice {p). So if the 
 parson of a church ought to present to a vicarage, if the 
 vicarage becomes void during the vacancy of the parsonage, 
 the patron of the parsonage, and not the executor of the 
 deceased parson, shall present {q). And in the case of a 
 bishop, the void turn of a church, the advowson whereof 
 belongs to him in right of his bishopric, by his death does 
 not go to his executor, although the church was void when 
 the bishop died, but the king shall present by reason of his 
 custody of the temporalities (r). 
 
 (o) Holt V. Bishop of Winches- case, for the distinction taken, nor 
 
 ter, 3 Lev. 47. Where a parson, is it easy to suggest one. See the 
 
 who had the inheritance of the ad- remarks of the Judges in Eenuell 
 
 vowson, devised that his executor r. Bishoj) of Lincoln, 7 B. & C. 
 
 should present after his decease, 113. 
 
 and devised the inheritance to {q) 2 Eoll. Abr. 346, tit. Pre- 
 
 another in fee, it was held that sentment (F.), pL 4. 1 Burn, 
 
 this was a good devise of the next E. L. 139, 8th edition, 
 
 avoidance : Pynchyn v. Harris, (r) 2 Eoll. Abr. Presentment, 
 
 Cro. Jac. 371. 345 (E.), pi. 4. Co. Litt. 90, a. 
 
 (jp) Eepington v. Tamworth Co. Litt. 388, a. Wats. C. L. 73, 
 
 School, 2 Wills. 150. No reason 4th edition. 
 18 assigned, in the report of this
 
 Cli. I. § I.] Cliatteh Real — Church Presentations. 595 
 
 If the testator presents, and (his clerk not being admitted 
 before his death) then his executors present their clerk, the 
 Ordinary is at his election, which clerk he will receive (s). 
 
 Every bishop, whether created or translated, was formerly The options of 
 bound, immediately after confirmation, to make a legal con- passed \oVis* 
 veyance to the archbishop of the next avoidance of one such ^-"^ecutors, &c. 
 dignity or benefice belonging to his see as the said archbishop 
 should choose or name, which was, therefore, commonly 
 called an option (t). And if the archbishop died before the 
 avoidance happened, the right of filling up the vacancy went 
 to his executors or administrators {u). 
 
 All leases and terms of lands, tenements, and heredita- Estates for 
 ments, of a chattel quality, are chattels real, and will go to ^'^^^'^ ' 
 the executor or administrator (r) ; but he has no interest in the 
 freehold terms or leases (x). The general rule for distin- 
 guishing these two kinds is, that all interests for a shorter 
 period than a life, or more properly speaking, all interests 
 for a definite space of time, measured by years, months or 
 days, are deemed chattel interests ; in other words, testa- 
 mentary, and of the nature, for the purposes of succession, 
 of other chattels or personal property {y). Thus not only 
 
 (s) Smallwood v. Bishop of is attached to the lease and passes 
 
 Lichfield, 1 Leon. 205. Wats. with it to the administrator as 
 
 C. L. 72, 225, 4th edit. part of an intestate's personal 
 
 (t) 1 Gibbs. Cod. 115. 1 Burn, estate. Re Adams and Ken- 
 
 E. L. 239, 8th edit. But it has sington Vestry, 24 C. D. 199 ; 27 
 
 been considered that such assign- C. D. 394. 
 
 ments have been rendered illegal {x) Estates for years have one 
 
 by reason of the stat. 3 & 4 Vict. quality of real property, viz. im- 
 
 c. 113, s. 42, and that the arch- mobility, but want the other, viz. 
 
 bishop's options have thus been a sufficient legal indeterminate 
 
 destroyed : at all events they are duration, the utmost period for 
 
 now obsolete. which they can last being fixed 
 
 (u) Potter V. Cliapmaii, Ambl. and determined : 2 Black. Comni. 
 
 98. 1 Burn, E. L. 240, 8th edit. 386. 
 
 (v) So it is with an option as an (i/) 1 Preston on Estates, 203. 
 
 incident of a lease. Thus an On the other hand, an estate of 
 
 option by the lessee to purchase freehold may be defined to be " an 
 
 the fee simple <d' the land demised estate in possession, remainder or 
 
 Q Q 2
 
 596 
 
 Of the Quantity of an Executor'' s Estate. [Pt. ii. Bk. ii. 
 
 Term for a 
 certain 
 number of 
 years if A. B. 
 so lont; live : 
 
 lease for life 
 made by lessee 
 for years : 
 
 lease for A.'s 
 life, and if he 
 die within a 
 certain time to 
 his executor 
 for the rest of 
 that terra. 
 
 an estate for one's own life, or for the life of another, is 
 deemed a freehold ; but if a man grant an estate to a woman 
 dum sola fiiit, or durante viduitate, or quamdiu se bene 
 gesserit, or to a man and woman during the coverture, or as 
 long as the grantee shall dwell in such a house, or so long 
 as he pays lOZ., &c., or until the grantee he promoted to a 
 benefice, or for any like uncertain time ; in all these cases 
 the lessee has an estate of freehold in judgment of law (s) ; 
 while a lease for 10,000 years is not a freehold, but chattel 
 interest. 
 
 If an estate be limited to A. B. and his assigns during 
 C. D.'s life, it is a freehold interest ; but if it be limited to 
 A. B. and his assigns for a certain number of years, if C. D. 
 shall so long live, it is a chattel, and will go to his executors 
 or administrators. 
 
 If a lessee for years of a carve of land grants to another 
 a rent out of the said carve for the life of the grantee, that 
 is a good charge during the term, if the grantee so long live ; 
 but in such a case the grantee hath but a chattel (a). 
 
 A. made a lease to B. for life by indenture, in which was 
 a proviso, that if the lessee died before the end of sixty years 
 then next ensuing, his executor should have and enjoy, as in 
 the right and title of the lessee, for term of so many of the 
 years as amounted to the whole number of sixty, so that the 
 commencement of the said sixty shall be accounted from the 
 date of the said indenture : The lessee made two executors, 
 and died : One of them entered into the land : And the 
 opinion of the Court was, that no lease for years was made by 
 this proviso in the lessee, nor by remainder in his executor ; 
 
 reversion, in corporeal or incorpo- 
 real hereditaments held for life or 
 for some uncertain interest, created 
 by Will or by some mode of con- 
 veyance, capable of transferring an 
 estate of freehold, which may last 
 the life of the devisee or grantee 
 or of some other person : " See 
 Watk. on Conveyancing, by Morley 
 
 and Coote, p. 63. 
 
 (;:) Co. Litt. 42, a. So where 
 A. leases to B., till A. makes J. S. 
 baily of his manor ; adjudged a 
 freehold : Ibid. Hal. MSS. See 
 also Beeson, App., Burton, Resp., 
 12 C. B. 647. 
 
 (a) Butt's case, 7 Co. 23, a. 
 Saffery v, Elgood, 1 A. & E. 191.
 
 Cli. I. § I.] Chattels Real — Leases for Years. 597 
 
 because nothing of the said term was limited to the lessee for 
 life as remainder to him and his executors {h). 
 
 There are certain interests in land, which although of an Estates by 
 uncertain duration, and therefore in that respect partici- gt^tute mer-^' 
 pating of the nature of freehold, are nevertheless chattels. cha,iit, and by 
 These are interests created by the statute law, and are secu- 
 rities for the payment of debts, namely, estates by statute 
 merchant, statute staple, and by elegit, the possessors of 
 which are said to hold their lands as freehold, but whose in- 
 terests are really chattel, and will go to their executors and 
 administrators (c). 
 
 Since an estate of freehold or inheritance cannot be de- a lease for 
 
 T,p, e ii?T*ix' years maile to 
 
 rived out oi a term tor years, no words oi nmitation can ^^^g j^^i j^js 
 alter the nature of the latter with respect to the purposes of J^^"!^ ^^''""^'^ '^° 
 
 ^ ^ '■ to tlie executor 
 
 succession. Thus if a lease for years be made to a man of the devisee : 
 and his heirs, it shall not go to his heirs but his exe- 
 cutors {(1). 
 
 So if a lease for years be made to a bishop, parson or other a lease for 
 sole corporation, and his successors, yet it will go to the exe- aTo?e "orp^ora- 
 cutors of the lessee : because a term for years being a chattel, *'"" *"<l ^i^.„ 
 
 '' successors will 
 
 the law allows none but personal representatives to succeed go to his 
 
 thereto, nor can this mode of succession be altered by any 
 
 limitation of the party {e). 
 
 Again, it is a principle of law, that a limitation of a per- lease for years 
 
 sonal estate to one in tail vests the whole in him. Therefore, ^l^^^ il\[ 
 
 where a term for years is devised to one and the heirs of his ^^^^^ s° to i^s 
 •^ _ executors : 
 
 body, or to the heirs male of his body, the term, at the death 
 
 (h) Gravener v. Parker, Anders. the land to A. and his heirs, the 
 
 19 : sed qucere ; and see ante, same shall go to the executor and 
 
 p. 557. not to the heir ; for being derived 
 
 (c) Co. Litt. 42, a. 2 Saund. 68, /. out of a chattel, it must be itself 
 note to Underbill v. Devereux. a mere chattel : Partus sequitur 
 Watk. on Conveyancing, by Mor- ventrem: Wentw. 136, 14th edit, 
 ley and Coote, 63. See also (e) Co. Litt. 46, 6. Fulwood's 
 Wentw. Off. Ex. 133, 4, 5, 14th case, 4 Co. 65, a. See Dollen v. 
 edition. Batt, 4 C. B., N. S. 760, as to what 
 
 (d) Co. Litt. 46, h. So if a ter- reservations make a freehold, and 
 mor for years grant a rent out of what a chattel lease.
 
 598 Oftlie Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 of the devisee, sliall go to the executor and not to the 
 lieir (/). 
 
 So if a lease for j^ears is given to A. and the heirs male of 
 
 his body, and for default of such issue, to B. and the heirs 
 
 male of his body, these words give to A. the absolute property 
 
 in the whole estate and interest transmissible to his personal 
 
 representatives (r/). In a case, where the testator devised 
 
 his real estates to A. for life, without impeachment, &c., 
 
 with remainder to trustees to preserve contingent remainders, 
 
 with remainder to the heirs of the body of A. and by codicil, 
 
 reciting the after-purchase of a leasehold estate, he devised 
 
 the same to the trustees named in his Will, " for such estate 
 
 and estates and in such manner and form " as his real estates 
 
 were given by Will : It was held that A., taking an estate tail 
 
 in the real estates under the Will, was nevertheless entitled 
 
 to the absolute interest in the leasehold bequeathed by the 
 
 codicil (//). 
 
 A lease for With respect to the limitation of real estates, where an 
 
 A.'^fo/iife" ° estate for life is given to the ancestor, followed by a sub- 
 
 and afterwards ggq^g^^it limitation to his heirs general or special, the subse- 
 
 general or quent limitation, as in the case just stated, vests in the 
 
 go to his ancestor, and the heir takes not by purchase. So in the 
 
 limitation of leasehold estates, generally speaking, if a term 
 
 for years be devised to one for life, and afterwards to the 
 
 heirs of his body, these words are words of limitation, and 
 
 the whole vests in the first taker, and is transmissible to his 
 
 executor. 
 
 Thus, in Theehridge v. Kilhurnc (/), where a term was 
 limited in trust for S. for life, and immediately from and 
 after her decease, to the heirs of the body of S. lawfully to 
 be begotten, if the term should so long endure, and in default 
 of such issue, then to B. : liOrd Hardwicke expressed himself 
 
 (/) Leonard Lovie's case, 10 Roll. Abr. 611 (L.), pi. 1. Dunn 
 
 Co. 87, h. Wentw. Off. Ex. 136, v. Penny, 1 Meriv. 20. 
 
 14th edit. 1 Prest. on Estates, 32. (Ji) Brouncker v. Bagot, 1 Meriv. 
 
 See 2^ost, Pt. in. Bk. iii. Ch. ii. 271. 
 
 § II. (B.) (0 2 Yes. Sen. 233. 
 
 {(J) Leventhorpe v. Aslibre, 1 
 
 executors.
 
 Cli. I. § I.] Chattels Real — Leases for Years. 599 
 
 of opinion that the whole term vested in S. Again in Gartli v. 
 Baldwyn {k), where real and personal estates were devised 
 to trustees, in trust to pay the profits to G. during his life, 
 and afterwards to pay the same to the heirs of his body. Lord 
 Hardwicke held, that the personal estate vested absolutely in 
 G. by this limitation. So in Verulani v. Bathurst {l), where 
 a testatrix bequeathed a leasehold house and 3,000Z. 
 stock to trustees, in trust to permit her daughter to re- 
 ceive the rents and interest for life for her separate use, 
 and, from and immediately after her daughter's decease, she 
 gave the rents and interest to the heirs of the body of the 
 daughter lawfully begotten, but in case her daughter should 
 happen to die without any lawful issue living at the time of 
 her decease, she gave the house and the stock over ; it was 
 held by Sir L, Shadwell, V. C, that the daughter took the 
 property absolutely. 
 
 However, if there appears any other circumstance or clause 
 in the Will, to show the intention that these words should be 
 words of purchase, and not words of limitation, then it seems 
 the ancestor takes for life only, and his heir will take by pur- 
 chase to the exclusion of his executor (m). 
 
 The chattels real which go to the executor or administrator Leases of 
 are not confined to terms or leases of lands, but extend to ji"red^°a-^ 
 chattel interests in incorporeal hereditaments, such as leases ments. 
 for years of commons, tithes, fairs, markets, profits of leets, 
 corodies for years, and the like (n). 
 
 In the case of a tenancy from year to year as long as both Estate of 
 
 parties please, since the death either of the lessor or lessee yearlo year 
 
 does not determine it, the interest of the tenant is transmis- ^oes to his 
 
 executor, &c. 
 
 sible to his executor or administrator (o). Therefore due 
 
 (k) 2 Yes. Sen. 646. Ch. ii. § ii. 
 
 (l) 13 Sim. 374. (n) Wentw. Off. Ex. 131, 14th 
 
 (m) See Fearne, Cont. Rem. 490, edition. Godolph. Pt. 2, c. 13, 
 
 et seq., 7th edition. Doe v. Lyde, s. 3. 
 
 1 T. R. 593. Kniglit v. Ellis, 2 (o) Doe v. Porter, 3 T. R. 13. 
 
 Bro. C. C. 570. Ex farte Sterne, James v. Dean, 11 Ves. 393. 
 
 6 Ves. 156. Pout, Pt. in. Bk. iii.
 
 GOO 
 
 Of the Quantitij of an Executor s Estate. [Pt. ii. Bk. ii. 
 
 Leases held in 
 joint tenancy 
 do not pass to 
 the executor, 
 &c. 
 
 Terms for 
 years vest in 
 the executor 
 though specifi- 
 cally devised : 
 
 ho cannot 
 waive a lease 
 though it be 
 ■worth nothing. 
 
 notice to quit must be given to the latter before tlie lessor or 
 his representative can recover in ejectment ( j)) ; and the exe- 
 cutor or administrator of the lessee may maintain ejectment ; 
 and it was held no objection that the demise in the declara- 
 tion was stated to be for seven years (q). So where W. H. 
 being tenant from year to year to Lady H,, died, leaving his 
 widow in possession ; and J. H. some time afterwards took 
 out administration to the deceased, but the widow continued 
 in possession, paying rent to Lady H. with the knowledge of 
 J. H., who never objected to such payment or made any de- 
 mand of rent ; it was held, that there was no evidence of a 
 determination of the tenancy from year to year by operation 
 of law, and that the administrator was entitled to recover pos- 
 session from the widow (r). 
 
 If a lease is made to several for a term of years, and one 
 of the joint tenants dies, his interest accrues to the sur- 
 vivors, and his executors or administrators shall take 
 none (s). 
 
 It may be advisable here to remark, that even when a term 
 for years is specifically devised, it will, in the first instance, 
 vest in the executor, by virtue of his office, for the usual pur- 
 poses to which the testator's assets shall be applied, and the 
 legatee has no right to enter without the executor's special 
 assent (0- 
 
 If the testator had a term for years, this vests in the 
 executor or administrator, and he cannot refuse it though it 
 
 {p) Parker v. Constable, 3 Wils. 
 25. But where a tenant from year 
 to year died, and a regular notice 
 to quit was served on the widow, 
 who remained in possession, it 
 was held by Littledale, J., that 
 the landlord might recover in 
 ejectment, unless it were shown 
 that some other person, and not 
 the widow, was the executor or 
 administrator of the tenant ; and 
 that it was not incumbent on the 
 
 landlord to show that the widow 
 was either executrix or adminis- 
 tratrix : Eees v. Perrot, 4 C. & P. 
 230. 
 
 {ti) Doe V. Porter, 3 T. R. 13. 
 
 (r) Doe V. Wood, 14 M. & \Y. 
 682. 
 
 (s) Co. Lit. 182, a. See ante, 
 p. 570, et seq. 
 
 (t) See infra, Pt. in. Bk. in. 
 Ch. IV. § III.
 
 Ch. I. § I.] Chattels Real — Estates pur autre vie. 601 
 
 be worth nothing ; for the executorship or administratorship 
 is entire, and must be renounced in toto, or not at all {u). 
 
 Generally speaking, the Courts of Equity follow the rules Equitable 
 of law in their construction of equitable interests ; and, teijus. 
 consequently, the beneficial interests in a term, where the 
 person entitled to it has no higher interest in the estate, is 
 treated as a chattel interest, and is transmissible to the per- 
 sonal representatives in the same manner as the legal estate. 
 For a statement of the interest of an executor or administrator 
 in estates, pur autre vie, by the Common Law and the Estates />«»• 
 statute 29 Car. II. c. 3, s. 12, and for the cases decided 
 thereunder, the reader is referred to the former editions of 
 this work (x). This statute was repealed by the Wills Act, Stat, i Vict. 
 
 c. 26, s. 3. 
 
 1837, 1 Vict. c. 26, s. 3 (which, however, does not extend to 
 any Will made before January 1, 1838), by which section 
 estates, |j?w autre vie, may be disposed of by Will, executed 
 as required by that Act, whether there shall or shall not bo 
 any special occupant thereof, and of whatever tenure they 
 shall be, and whether the same shall be a corporeal or in- 
 corporeal hereditament (y). 
 
 And with respect to the estate, ^9itr autre tie, of any deceased 
 person, who shall not have died before the 1st day of January, 
 
 1838, the same statute, (after repealing previous statutes 
 relating to estates pur autre vie) proceeds to enact, by sect. G, Stat.^ l Vict. 
 
 c 2(3 s 6 
 
 that if no disposition shall be made thereof by Will, and in ' 
 case there shall be no special occupant thereof, it shall go, 
 (whether freehold or customary freehold, tenant right, 
 customary or copyhold (z), or of any other tenure, and whether 
 a corporeal or incorporeal hereditament,) to the executor or 
 administrator of the party that had the estate thereof by 
 virtue of the grant ; and if the same shall come to the executor 
 
 (m) Billiiigliurst v. Spearman, 1 (x) Pt. il. Bk. ii. Ch. i. § i. 
 
 Salk. 297. Ackland v. Pring, 2 {y) See this enactment, verbatim, 
 
 Mann. & Gr. 937. As to liis in Preface, 
 
 liability to pay the rent and per- {z) The statute of Car. II. ditl 
 
 form the covenants of his lease, not extend to copyholds : Zoucli 
 
 notwithstanding he has no assets, v. Forse, 7 East, 186. 
 see pod, Pt. IV. Bk. ii. Ch. i. § ii.
 
 602 
 
 Of the Quantity of an Executoi^'' s Estate. [Pt. ii. Bk. ii. 
 
 Mortgacres ; 
 
 considered 
 part of the 
 jiersonal 
 estate : 
 
 44 & 45 Vict, 
 c. 41, s. 30. 
 
 or administrator, either by reason of special occupancy, or by 
 virtue of this Act, it shall be assets in his hands, and shall 
 go in the same manner as the personal estate (a). 
 
 With respect to the title of an executor or administrator 
 of a mortgagee to the mortgaged property, formerly, at law, 
 this depended on the fact whether the mortgage was in fee or 
 for 5'ears : in the former case the legal estate in the land 
 descended to the heir ; and in the latter, it W'ent, like any 
 other term for years, to the executor : But with regard to 
 the money due upon the mortgage, it was fully established in 
 equity, that, in every case, it was to be paid to the executor 
 or administrator of the mortgagee ; by reason of the rule of 
 equity that the satisfaction shall accrue to the fund that 
 sustained the loss {h). Consequently, if the mortgage were 
 in fee, the heir or devisee of the mortgagee was a trustee of 
 the land for the executor or administrator ; and would, upon 
 application, be directed to convey to him {e). So if the land 
 became irredeemable in the hands of the heir, either by the 
 length of possession, or by his purchasing the equity of 
 redemption, or foreclosing, it nevertheless belonged to the 
 personal representative, and the heir was considered a trustee 
 for him (/). And now in all cases of death after Decem- 
 ber 31, 1881, it is provided by the Conveyancing Act, 1881, 
 sect. 30, that all estates vested in any person solely by way 
 of mortgage shall on his death, notwithstanding any testa- 
 
 (a) See this enactment, verba- 
 tim, j)Ost, Pt. IV. Bk. I. Ch. I. In 
 the construction of it, in a case 
 where leasehold estates ^mr autre 
 vie were devised in trust for A., 
 his heirs, sequels in right, execu- 
 tors, administrators, and assigns, 
 and A. siirvived the devisor, and 
 being illegitimate, died without 
 heirs and intestate, living the 
 cestui qui vie, it was held that the 
 section applied to equitable estates 
 in land, and that the devised 
 estates passed under it to A.'s 
 
 administrator (the nominee of the 
 Crown) : Reynolds v. Wright, 2 
 Ue G. F. & J. 590. 25 Beav. 100. 
 
 (6) Thornbrough v. Baker, I 
 Chanc. Cas. 283. 
 
 (e) Ellis V. Guavas, 2 Chanc. 
 Cas. 50. 
 
 (/) Ibid. Canning v. Hicks, 2 
 Chanc. Cas. 187. Tabor v. Grover, 
 2 Vern. 367. But it should seem, 
 that if the heir chooses, he may 
 pay off the mortgage money to 
 the executor, and retain the land : 
 Clerkson v. Bowyer, 2 Yern. 66.
 
 Ch. I. § I.] Chattels Real—Mortrjafjes. 603 
 
 mentary disposition, devolve to and become vested in his 
 personal representatives as if the same were a chattel real, 
 and for the purposes of this section the personal representa- 
 tives of a deceased person are to be deemed his heirs and 
 assigns within the meaning of all trusts and powers. 
 
 But the mortgagee may, as between his real and personal in what case 
 representative, by a manifest declaration of his intent, con- eatitled: 
 vert the mortgage, as well as any other part of his personal 
 estate, into land, and make it pass accordingly (//). So if a 
 man purchase an estate, which afterwards proves to be subject 
 to an equity of redemption, and dies, the money will belong 
 to his heir, and not his executor Qi). Again, if mortgage 
 money be articled to be laid out in land and settled, the money 
 will be bound by the articles {%). So if the mortgagee in his 
 lifetime obtain a release of the equity of redemption, or obtain 
 an absolute decree of foreclosure, and enter into possession, 
 and after his death, the foreclosure shall be opened, or the 
 release set aside, the heir, and not the executor, will be 
 entitled to the money {k). 
 
 If the mortgagee becomes entitled to the land in fee simple, '^^'en a mort- 
 as if it descends upon, or is devised to him, a question may 
 arise between his heir and executors, whether the charge is 
 to be considered as subsisting for the benefit of his personal 
 representatives, or is merged for the benefit of the person 
 taking the land. The rule in these cases is, that if it be 
 indifferent to the party in whom this union of interest arises, 
 whether the charge be kept on foot, or not, it will be ex- 
 tinguished in equity upon the presumed intention, unless an 
 act declaratory of a contrary intention, and consequently 
 repelling such presumption, be done by him (l). But if a 
 
 {(j) Noys V. Mordaunt, 2 Vern. [l) 2 Powell Dev. 146, Jarman's 
 
 581. Ante, p. 579. edit. Grice v. Shaw, 10 Hare, 76. 
 
 (/(,) Cotton V. lies, 1 Vern. 271. When the owner of an estate has 
 
 Coote on Mortg., 5th ed., 1122. also a charge on it, and there is 
 
 [i) Lawrence v. Beverley, cited some intermediate charge or estate 
 
 3 P. Wnis. 217, in Lechmere v, between his own charge and his 
 
 Carlisle. ownership in fee, it may be reason- 
 
 (k) Ihiil. able to say that without some
 
 604 
 
 Of the Quantity of an Executor s Estate. [Ft. ii. Bk. ii. 
 
 title of execu- 
 tor of mortga- 
 gor in case of 
 a mortgage 
 with power of 
 sale. 
 
 Devise of land 
 to executors 
 for payment 
 of debts. 
 
 purpose, beneficial to the owner, can be answered by keeping 
 the charge on foot, so that the charge would be disposable by 
 him, though the land would not (;??) : or a beneficial use 
 might have been made of it against a subsequent incum- 
 brancer {n), or the other creditors of the person from whom 
 the party derived the onerated estate (o) : in these, and 
 similar cases, equity will consider the charge as subsisting, 
 notwithstanding that it may have been merged at law {p) : 
 and the rule is adopted in favour of the creditors of the 
 person in whom these interests centre {q). 
 
 Where a mortgage deed contains a power of sale, with a 
 direction that the surplus produce shall be paid to the mort- 
 gagor, his executors or administrators, if a sale takes place in 
 the lifetime of the mortgagor, the surplus is personal estate ; 
 but if after his death, it is real estate, as the equity of re- 
 demption descends to the heir-at-law (r). 
 
 At common law, where a man devised land to his executors 
 for payment of his debts, or until his debts were paid, or till a 
 particular sum should be raised out of the rents or profits, the 
 executors took thereby only a chattel interest, i.e. an estate for 
 so many years as were necessary to raise the sum required (s) : 
 and this interest determined when the rents or profits would 
 have raised the sum, although the executors might have mis- 
 applied them(0. But by stat. 1 Vict. c. 26, s. 30, where 
 
 Moffat, 18 Yes. 
 
 special act, no presumption can be 
 made of an intention to merge the 
 charge in fee ; for that might be 
 against the interest of the owner 
 by letting in the intermediate 
 estate or incumbrance : But where 
 the intermediate interest is created 
 by the act of the owner himself, 
 this reasoning has no application : 
 Johnson v. Webster, 4 De G. M. 
 & G. 474, 488, by Lord Cran- 
 worth. 
 
 (m) Thomas v. Kemeys, 2 Vern. 
 348. 
 
 (») Gwillim V. Holland, cited 2 
 Ves. Jun. 263. 
 
 (o) Forbes 
 384. 
 
 {xi) Powell, Dev. iihi siqna. 
 Byam v. Sutton, 19 Beav. 5.56. 
 
 {([) Powell V. Morgan, cited 2 
 Vern. 206. Powell, Dev. uhi supra. 
 
 (r) Wright v. Eose, 2 Sim. & 
 Stu. 323. Bourne v. Bourne, 2 
 Hare, 35. 
 
 (s) Hitchens v. Hitchens, 2 
 Vern. 404. Ackland v. Lutley, 
 9 A. & E. 879. Ackland v. Pring, 
 2 M. & Gr. 937. 
 
 it) Carter v. Barnadiston, 1 P. 
 Wms. 509, 519. Ackland v. Lut- 
 ley, 9 A. & E. 879.
 
 Ch. I. § il] Chatteh Real of Wife. 605 
 
 any real estate, (other than a presentation to a church), shall Stat, l Vict. 
 
 . c 26 s. 30 
 be devised to any trustee or executor, such devise [if the Will 
 
 be made on or after January 1, 1838] shall pass the fee simple 
 
 or other the whole estate of the testator, unless a definite 
 
 term of years, or an estate of freehold, shall thereby be given 
 
 to him expressly or by implication (w). 
 
 SECTION II. 
 
 Right of Executors and Administrators to Chattels Real, 
 with relation to Iliishand and Wife. 
 
 Before quitting the inquiry as to the interest which 
 executors and administrators have in the chattels real of the 
 deceased, it is j)roper to consider the subject as it bears on 
 the relation of husband and wife. It is therefore proposed 
 to investigate, 1st, when the wife survives, the rights of the 
 executor or administrator of the husband to her chattels 
 real : 2nd, when the husband survives, the rights of the 
 administrator of the wife to the same. 
 
 This subject has, however, become of much less practical 45 & 4g Vict. 
 importance than formerly by reason of the Married Women's '^' ' 
 Property Act, 1882 (45 & 46 Vict. c. 75). 
 
 By section 1 (1) of the Married Women's Property Act, 
 1882 (45 & 46 Vict. c. 75), it is enacted that " a married 
 woman shall in accordance with the provisions of this Act be 
 capable of acquiring, holding, and disposing by Will or other- 
 wise of any real or personal property as her separate property 
 in the same manner as if she were a feme sole without the 
 intervention of any trustee {x). 
 
 By section 2 of the Married Women's Property Act, 1882, 
 every woman who marries after the commencement of that 
 
 (h) See also 1 Vict. c. 20, s. 31. terms of this sub-section, it wduUI 
 (.t) NoLwitlistiUuling the wide seem that the devoluti(jn of the
 
 60G Of the Quantity of an Executors Estate. [Pt. ii. Bk. il. 
 
 Act [viz. January 1, 1883], is entitled to have and to hold as 
 her separate property, and to dispose of hy Will, or otherwise, 
 in the same manner as if she were a feme sole, all real and 
 personal property belonging to her at the time of marriage, 
 
 chattels real of the wife is unaltered, 
 and that the effect of the Act is 
 merely, 1. That the husband is de- 
 prived of the power of divesting his 
 ■nofe of her chattels real during 
 coverture, and 2. That if the wife 
 do not alien her chattels real in 
 her lifetime, or by her Will, and the 
 husband survive her, he will take 
 such chattels real as are affected 
 by the Act, not as a marital right, 
 but as the administrator of his 
 wife. In other words, this enact- 
 ment does not affect the devolu- 
 tion of the wife's property but 
 only the " jiis mariti," and it 
 would seem, therefore, that, al- 
 though under each of the above- 
 mentioned sections (2 and 5) the 
 married woman is entitled to 
 have and to hold the property as 
 her separate property, and to dis- 
 pose of it "in manner aforesaid," 
 i.e., "as if she were a feme soW' 
 (sect. 1 (1) ), the statute only 
 means that she is to have the 
 legal estate in the propeity, and 
 that, therefore, if she dies without 
 having aliened or disposed of it 
 by Will her husband will have no 
 right to it ^'■jure mai-iti," because 
 it never was his, yet he will still 
 have the right (continued to him 
 by the Statute of Frauds notwith- 
 standing the Statute of Distribu- 
 tions) to administration and en- 
 jojment of his wife's assets. The 
 question, however, remains whether 
 the M. W. P. A., 1882, affects 
 property acquired before 1 Jan., 
 
 1883, by a woman married before 
 that date. The only section that 
 could operate upon such property 
 would seem to be section 1, sub-s. 
 (1), above set out. The scope of 
 this sub-section seems to be to 
 declare the status of a married 
 woman. The Act nowhere con- 
 tains any provision divesting the 
 busband of the qualified interest 
 in his wife's chattels real vested 
 in him before the passing of the 
 Act. As to undisposed of separate 
 property accrued to a married 
 woman before the Act, it has been 
 held by Stirling, J., in Re Lambert, 
 39 C. D. 626, that the husband's 
 right to such property is unaffected 
 by sect. 1 (1) of the M. W. P. 
 Act, 1882. The learned Judge 
 points out that, even before the 
 Act, a married woman might al- 
 ways dispose of her separate pro- 
 perty by Will, but that, to the 
 extent that she did not, the hus- 
 band's right accrued on her death. 
 This right he held to be unaffected 
 by the Act. The result as to 
 chattels real acquired before 1 Jan. 
 1883, by a woman married before 
 that Act, would seem to be that 
 letters of administration are un- 
 necessary in cases where the hus- 
 band survives the wife, imless 
 indeed the interest of the wife 
 consists of a mere right of action. 
 See Be Bellamy, 25 C. D. 620. 
 Surman v. Wharton [1891], 1 Q. B. 
 491.
 
 Ch. I. § II.] Chattels Real of Wife. 607 
 
 or acquired by, or devolving on, lier after marriage, and by 
 sect. 5 every woman married before the commencement of the 
 Act [viz. January 1, 1883], is entitled to have and to hold, 
 and to dispose of by Will, or otherwise, in the same manner 
 as if she were a feme sole, as her separate property all real 
 and personal property, her title to which, whether vested, or 
 contingent, and whether in possession, reversion, or remainder, 
 accrues after the commencement of the Act (?/). 
 
 The eflfect of this Act is, it seems, to extend the power which 
 before the Act a married woman possessed to dispose of 
 such chattels real as were settled to her separate use, and to 
 give the same power to a woman married before January 1, 
 1883, in respect of any chattels real, her title to which accrues 
 to her after that date, and to a woman married on, or after 
 January 1, 1883, in respect of all chattels real, whensoever 
 and howsoever her title to them may accrue. 
 
 It follows that if the wife survive her husband his executor 
 or administrator has no right whatever to such chattels, 
 as by the statute are made the separate property of the 
 wife, but the property in them remains in, and survives to, 
 the wife. 
 
 And, if the husband survive the wife, it would seem that 
 in respect of those chattels real over which a wife by the 
 statute has a complete power of disposal as if she were a 
 feme sole, if she die intestate without disposing of them, her 
 husband has a right to them as her administrator, and to esta- 
 blish his title he must take out administration to her. 
 
 Having regard to the numerous cases which must arise in 
 the case of chattels real of the wife not affected by the Married 
 Women's Property Act, 1882, it is considered convenient to 
 
 (i/) Women, however, married (if married on or after 9 Aujr., 
 
 before 1 Jan., 1883, in addition to 1870) of chatteLs real acquired by 
 
 the powers conferred on them by them as next of kin of an intestate, 
 
 this Act still retain the same as they possessed at the commence- 
 
 power to dispose of chattels real ment of this Act : see sects. 19 and 
 
 settled to their " se])arate use," or 22.
 
 608 Of the Quantity of an Executor s Estate. [Pt. ii. Bk. ii. 
 
 reprint the text as it existed in the last edition of this work 
 prior to the passing of that Act. 
 
 1. The right of 
 the husband's 
 executor, &c., 
 to the wife's 
 chattels real : 
 
 if they remain 
 in statu quo, 
 and she sur- 
 vive, she will 
 be entitled, 
 and not her 
 husband's 
 executors : 
 
 what amounts 
 to a disposi- 
 tion of the 
 wife's chattels 
 real by the 
 
 Laiv as to Chattels Real of the Wife not affected hy the 
 Married Women'' s Property Act, 1882. 
 
 As to the law previous to the passing of the Married 
 Women's Property Act, 1882, the common law gives a quali- 
 fied interest to the husband in the chattels real of which the 
 wife is, or may be, possessed during marriage, viz., an interest 
 in his wife's right with a power of divesting her property 
 during the coverture. 
 
 1. If therefore he so disposes of his wife's terms, or other 
 chattels real, by a complete act in his lifetime, her right by 
 survivorship will be defeated {a) : but if he leave them in 
 statu quo, and the wife be the survivor, she will be entitled to 
 them, to the exclusion of the executors or administrators of 
 her husband (h). 
 
 It becomes, therefore, necessary to inquire what shall 
 amount to such a disposition of the wife's chattels real by 
 the husband, as will exclude her title by survivorship : and 
 as the object of this Treatise is merely to show what interest 
 the executor or administrator of the husband takes by the 
 
 (a) And since the same rule of 
 property must prevail in equity as 
 in law, if the wife in a case not 
 affected by the M. W. P. Acts 
 be entitled to a term for years, 
 held in trust for her benefit, tlie 
 assignment or alienation of it by 
 her husband will bind her sur- 
 viving him : Bates v. Dandy, 2 
 Atk. 207. 1 Bacon, Abr. Baron 
 and Feme (C. 2). 1 Roper, Husb. 
 and Wife, 177, 2nd edit. : unless 
 the husband, before marriage, con- 
 sent to the settlement of the term 
 for her benefit : Sir Edw. Turner's 
 case, 1 Vern. 7. (See as to trusts 
 for her separate use, post, Pt. ii. 
 
 Bk. II. Ch. II. § III.) So, apart 
 from the M. W. P, Acts, the con- 
 tingent reversionary interest of the 
 wife in the trust of a term for 
 years may be sold by the husband ; 
 and the wife sur\dving will be 
 bound by such sale though the 
 husband dies before the contin- 
 gency is determined or the rever- 
 sion falls into possession : Donne 
 V. Hart, 2 Russ. & M. 360. Secus, 
 where the interest cannot possi- 
 bly vest during the coverture : 
 Duberleyt'. Day, 16 Beav. 33. 
 
 (h) 1 Roper, Husb. and Wife, 
 173, 2nd edit.
 
 Ch. I. § II.] Chattels Real of Wife. 609 
 
 defeat of the wife's claim, the instances selected will be imsband, so 
 confined to cases where the question is between her and the right by sur- 
 executor or administrator, and not between her and an ^i^o^'^^ip- 
 alienee. The general principle is, that the transaction must 
 be of a description to effect a complete alteration in the . 
 nature of the joint interest of the husband and wife in the 
 wife's chattels real. 
 
 The Will of the husband cannot dispose of the chattels the husband's 
 real of the wife, against her surviving him ; for as that does 
 not take effect till after his death, the law takes precedence, 
 and vests the term in the wife immediately upon his 
 decease (c). 
 
 If the husband and wife be ejected of a term which he en- effect of hus- 
 
 T • 1 1 1 1 • p band's pro- 
 
 joyed m her right, and he commences an action of ejectment ceedings at law 
 in his oivn name, and obtains judgment, the recovery will name" for the 
 change the wife's property in the term, and vest it in the '^^'^^'^ ^'^^'^ '■ 
 husband (d). 
 
 It seems that if there is a dispute between the husband, effect of hus- 
 
 1 • - p • ' ^ c ^ • -X 1 band's sub- 
 
 claimmg a term of years in right of his wife, and another mittingthe 
 person, relative to the title, and they refer the matter to ^ife'sterm to 
 arbitration, and an award is made of the term to the arbitration: 
 husband, the property in it will be changed by the arbitra- 
 ment, so as to amount to a reduction of the term into 
 possession which will defeat the wife's right by survivor- 
 ship (e). 
 
 If the wife, at the time of her marriage, were a lessee for effect of the 
 years, and her husband purchases or takes a lease of the taking 
 lands for both their lives, that act will amount to a dis- 
 
 (c) 2 Black. Comm, 434. 1 of it, and brings his action, and 
 Roper, Husband and Wife, 174, recovers the same again, and hath 
 2nd edit. his judgment ; he shall have it in 
 
 (d) Co. Lit. 46, b. Com. Dig. statu quo." See also note (6) to 
 Baron and Feme (E. 2). Bacon, Co. Lit. 46, b. Hal. MSS. 
 
 Abr. tit. Baron and Feme (C. 2) ; (e) 1 Roll. Abr. 245, Arbitra- 
 
 Init see Brett v. Cumljerland, 1 ment (D.) : but see Mr. Roper's 
 
 Roll. Rep. 359, in which Coke, note, vol. i, 185, 2nd edit., and 
 
 C.J., says, "A man hatli a term Hunter v. Rice, 15 East, 100. 
 in right of his wife ; he is ousted 
 
 W.E. VOL. I. R R 
 
 a new 
 lease of the 
 land in which 
 the wife has 
 a term :
 
 6L0 
 
 Of the Quantity of an Executor s Estate. [Pt, ii. Bk. ii. 
 
 effect of an 
 alienation of 
 ■wife's term by 
 husband on a 
 condition 
 which is 
 broken and 
 the land re- 
 entered : 
 
 effect of hus- 
 band's mort- 
 gaging his 
 wife's chattels 
 real : 
 
 position of the term : because, by the acceptance of the 
 second lease the term is surrendered by operation of law, 
 which surrender the husband is enabled to make under his 
 general authority to dispose of the wife's leases in posses- 
 sion (/). 
 
 If the husband alone assign a term of which he is pos- 
 sessed in right of his wife, subject to a condition, and enter 
 for the condition broken during the coverture, the husband 
 will be again possessed in right of his wife as before ; and 
 the wife being the survivor may be entitled {(j). 
 
 But if the husband die before the condition broken, 
 his executors or administrators must enter for the breach 
 of the condition, and will hold discharged of the title of the 
 wife (/i). 
 
 If the husband mortgages the wife's term, and by payment 
 of the money at the day, the estate of the mortgagee ceases, 
 it seems that the interest of the wife in the term will not be 
 afiected(r). If the money be not paid at the day, the estate 
 of the mortgagee becomes absolute, and the alienation of 
 the term being complete at law, the wife's legal right by 
 survivorship is defeated ; and if the equity of redemption 
 were reserved to the husband alone, it has been said that her 
 right will also be defeated in equity, by analogy to the cases 
 in which it has been held that she is bound by the husband's 
 voluntary assignment of her equitable chattels real (A). But 
 if the equity of redemption were reserved to the husband 
 and wife she would be entitled to survivorship [1) : And 
 
 (/) 2 Roll. Abr. Surrender (F.) 
 p. 495, pi. 8. 1 Roper, Husband 
 and Wife, 183, 2nd edit. 
 
 {g) 1 Roll. Abr. 344, 1. 45—50. 
 Bac. Abr. tit. Baron and Feme, 
 (C. 2). 1 Prest. on Abstr. 345. 
 
 Qi) Co. Lit. 46, h. Bac. Abr. tit. 
 Baron and Feme (C. 2). 
 
 (i) Young V. Radford, Hob. 3. 
 1 Roper, Husband and Wife, 184, 
 Jacob's edit. 
 
 {k) 1 Roper, Husband and Wife, 
 184, Jacob's edition. 1 Prest. on 
 Abstr. 345. The latter writer adds 
 "seeZ quare." 
 
 (l) Pitt V. Pitt, 1 Turn. Chan. 
 Rep. 180 : In that case a feme sole 
 made a mortgage of a leasehold 
 house and afterwards married ; the 
 mortgage was then transferred ; 
 the husband joined in the transfer, 
 and covenanted to pay the money ;
 
 CIi. I. § II.] Chattels Real of Wife. CU 
 
 unless his intention to defeat her right can be collected from 
 the particular instruments of mortgage, it may bo doubted 
 whether it will be defeated by the reservation of the equity 
 of redemption to him alone ; for that this mere circumstance 
 is not enough to rebut the ordinary presumption that nothing 
 more is intended by the usual mortgage deed than that 
 which is necessary to make the estate a security for the 
 money advanced (»i). If in any case the husband, after the 
 estate of the mortgagee has become absolute, pays the money, 
 and takes an assignment to himself, the property will be 
 altered, and the term will go to the executors of the husband, 
 to the exclusion of the wife (n). 
 
 The power which the law gives the husband to divest the effect of hus- 
 whole interest of his wife, in her chattels real, necessarily arunderiease 
 authorizes him to divest it partially (o). If, therefore, the of the wife's 
 
 ■•• J '> / ' ^ term for years : 
 
 husband be possessed of a term for years in right of his 
 wife, and he alone grants an underlease for a portion of the 
 term reserving rent, he becomes the actual owner, to the 
 extent of the term so granted, and the rent will form 
 part of his executor's estate {p) ; but the residue of the 
 original term will belong to her, as undisposed of by her 
 husband {q). 
 
 Whether the husband's agreement to make an underlease effect of hus- 
 of his wife's term for years will produce the same effect as ,,j^J)j^ foTIn^' 
 
 underlease. 
 
 and the er|uity of redemption was Feme (C. 2). 
 
 reserved to the husband and wife, {jj) 6 Ves. 394, by Lord Eldon 
 
 their executors, administrators, and in Druce v. Denison. Had the 
 
 assigns: It was hehl that the wife's husband and wife joined in the 
 
 right by survivorship was not lease, the rent would have been 
 
 alfected : But on a bill by the wife incident to the reversion, as well 
 
 to redeem the mortgage, the re- after the death of the liusband as 
 
 dcmption was decreed on the terms, during his life, and would have 
 
 that the husband'rt estate should belonged to the wife : 1 Prest. on 
 
 stand in the place of the mort- Abs. 345. 1 Roper, Husband and 
 
 gagee, for sums paid by him out of Wife, 174, 175, 2nil edit, 
 
 liis property in reduction of tiie ((/) Co. Lit. 4G, h. See -post, 
 
 mortgage debt. Pt. ii. V>k. ill. Ch. I. § III. as to 
 
 {m) Clark v. Burgh, 2 Coll. 221. the party entitled to arrears of 
 
 {%) 1 Prest. on Abstr. 346. rent reserved on a lease of the 
 
 (o) Bac. Aljr. tit. Baron and wife's estate. 
 
 B, 11 2
 
 612 
 
 Of the Quantity of an Execut07''s Estate. [Pt. ii. Bk. ii. 
 
 2. Rights of 
 wife's admi- 
 nistrator to 
 her chattels 
 real : 
 
 those vested 
 during cover- 
 ture go to the 
 husband jure 
 rnnriti : 
 
 an actual lease, lias never been expressly decided. The 
 point was discussed in Druce v. Denison (r), though it became 
 unnecessary to decide it : But Lord Eldon (s), intimated 
 an opinion that the agreement would be good against the 
 wife, and that the rent would form part of the husband's 
 estate : He observed, that as to actual leases there was no 
 doubt that, to the extent of the terms granted the husband 
 became owner ; as to the agreements for leases his appre- 
 hension was, that in a Court of Equity the husband was to 
 be considered owner of those interests, and he compared it 
 to an assignment of the wife's choses in action, which, 
 though conferring no legal title, is supported in equity : On 
 the case coming on again, his Lordship said, that he should 
 wish a search to be made on the point, whether it had ever 
 been decided that an agreement would or would not bind 
 the wife ; and if it would, whether the rent was to be paid 
 to her or her husband : If that point was untouched by 
 decision, he thought it would be found, that the analogy to 
 other cases would make out that an assignment in equity was 
 to this purpose as good as an assignment at law, and he 
 referred to Steed v. Cragh {t), as stating the principle. 
 
 2. The rights of the administrator of the wife to her 
 chattels real when her husband survives. If the husband 
 do not alien them in her lifetime, and he survive her, the 
 law gives them to him, at least all those of which he had 
 possession jure uxoris during the coverture, not as the 
 administrator of his wife, but as a marital right (»)• No 
 administration to her, therefore, need be taken out by him for 
 this purpose (x). 
 
 (r) 6 Ves. 385. 
 
 (s) 6 Ves. 395. 
 
 (\) 9 Mod. 43. 
 
 (u) Secus, as to a ease whereof 
 the wife and another were joint 
 tenants ; for it shall survive to 
 her companion, inasmuch as he 
 has the elder title to that of the 
 husband : Co. Lit. 185, b. Brace- 
 bridge V. Cook, Plow. 416 418. 
 
 And if the husband in his lifetime 
 had granted a rent-charge out of 
 the term the wife survivor should 
 avoid the charge and all other 
 incumbrances, for she being the 
 survivor is remitted to the term 
 ■which the coverture does not 
 divert out of her: Bracebridge v. 
 Cook, Plow. 416, 418. 
 (i) 1 Koll. Abr. Baron and Feme
 
 Ch. I. § II.] Chattels Real of Wife. 613 
 
 Consequently, should the husband die without exercising 
 his exclusive right of taking out administration to her (y), her 
 chattels real in possession will go to his administrator, and 
 not to the administrator of his wife (2). 
 
 But to entitle the husband to the chattels real of the secus, of those 
 wife which were not vested in his possession in her right in 
 her lifetime, he must make himself her representative, by 
 becoming her administrator : As if a feme sole be possessed 
 of a chattel real, and be thereof dispossessed, and then take 
 husband, and die before recovery of possession, this right 
 will not survive to the husband, but go to the personal 
 representative of the wife (a). Therefore if the husband die 
 without obtaining letters of administration, the right will 
 not pass to his administrator, but to the administrator of his 
 wife (h). However, such administrator will be considered in 
 equity as a trustee for the representative of the husband (c). 
 
 If the husband be seised of an advowson in right of his 
 wife, and the church become vacant during the coverture, 
 the wife shall have the void presentation if she survive him, 
 and the husband if he survive her (d), even though, by reason 
 of her not having issue, he be not tenant by the curtesy (e) : 
 but if the church fell vacant before coverture, the husband 
 shall not have the turn (/) : i.e. it may be considered, he 
 shall not have it as a marital right ; but still it mil go to 
 
 (H. 8). Wrotesley v. Adams, is entitled to a term suliject to a 
 
 Plowd. 122. Hauchet's case, Dyer, life estate therein and predeceases 
 
 251, a. Co. Lit. 46, h. Ibid. her husband during the subsis- 
 
 351, a. Re Bellamy, 25 C. D. tence of the life estate, it is not 
 
 620. And the same of an equitable necessary for the husband to take 
 
 term : Rex v. Holland, Aleyn, 15, out letters of administration in 
 
 by Rolle. 1 Prest. on Abst. p. 343. order to complete his title to the 
 
 (y) See ante, p. 346. leaseholds : Re Bellamy, 25 C. D. 
 
 (z) Doe V. Polgrean, 1 H. Black. 620. See also Doe v. Polgrean, 
 
 535. 1 H. Black. 535. 
 
 (a) Co. Lit. 351, a. Theillustra- (h) Ante, pji. 349, 350. 
 
 tion refers to a mere right of (c) Aide, p. 349. 
 
 action and not to a case where the (d) Co. Lit. 351, h. 
 
 wife dies before the interest vested (c) Wats. C. L. 71, 72. 
 
 in possession. Thus where a wife (/) Co. Lit. 351, h.
 
 614 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 him as lier administrator (f/). It will be observed that the 
 ucxt presentations to vacant churches are not properly chattels 
 real, but chattels personal, and, therefore, in strictness do not 
 belong to this part of the subject of the estate of an executor 
 or administrator. 
 
 By condition. 
 
 By remainder. 
 
 Contingent 
 and executory 
 interests. 
 
 SECTION III. 
 
 Of the Estate of an Executor or Administrator in Chattels 
 Real hy Condition, Remainder, or Limitation. 
 
 An executor or administrator may become entitled to 
 chattels real by condition. As where a lease for years has 
 been granted by the testator, upon condition that if the 
 grantee did not pay such a sum of money, or do other acts as 
 the testator appointeth, &c., and the condition is not performed 
 after the testator's death, now is the chattel real come back to 
 the executor (li). So where the condition is, that the testator or 
 his executor shall pay the money to avoid the grant, as where 
 he mortgaged a lease for years and before the day limited for 
 redemption he dies, his executor is entitled to redeem at the 
 time and place appointed (i). 
 
 Likewise a chattel real may accrue to an executor or 
 administrator by remainder. Thus a remainder in a term 
 of years, though it never vested in the testator in possession, 
 and though it continue a remainder, shall go to his executor. 
 Where a lease for years is bequeathed by Will to A. for life, 
 and afterwards to B., who dies before A., although B. never 
 had the term in possession, yet it shall devolve on his exe- 
 cutors (A-). 
 
 With respect to contingent and executory interests, it is 
 established, that contingent and executory estates, and pos- 
 sibilities in chattels real, accompanied by an interest, are 
 
 (g) See infra, Pt. ii. Bk. in. 
 Ch. I. § in. 
 
 (h) Wentw. Off. Ex. 181, 14tli 
 edit. 
 
 (i) Wentw. Off. Ex. 181, 14th 
 edit. Toller, 164. 
 
 (k) Wentw. Off. Ex. 189, 14th 
 edit.
 
 Cli. I. § III.] Chattels Real by Remainder. 615 
 
 transmissible to the personal representative of a person dying 
 before the contingency upon which they depend takes effect {I). 
 Thus, in the case above put, where a lease for years is be- 
 queathed to A. for life, and after his death to B. for the 
 residue of the term, B. has only an executory interest during 
 the life of A.; but this interest is transmissible to B.'s execu- 
 tors or administrators {m). 
 
 Lord Coke says, that "if a man make a lease for life to Lease for life, 
 one, the remainder to his executors for twenty-one years, the the^executors 
 term of years shall vest in him ; for even as ancestor and °^ lessee. 
 heir are correlativa as to inheritance (as if an estate for life 
 be made to A., the remainder to B. in tail, the remainder to 
 the right heirs of A., the fee vested in A., as it had been 
 limited to him and his heirs), even so are the testators and 
 executors correlativa as to any chattel. And, therefore, if a 
 lease for life be made to the testator, the remainder to his 
 executors for years, the chattel shall vest in the lessee him- 
 self, as well as if it had been limited to him and his exe- 
 cutors (;n). 
 
 {l) Fearne, 554. 2 SaiuKl. 388, n. in the present edition than to 
 
 note (9), to Purefoy v. Eogers. See cite the conclusion arrived at by 
 
 2)ost, Pt. II. Bk. II. Ch. III. Mr. Serjeant Hill in his MS. 
 
 (m) Manning's case, 8 Co. 95. note above referred to in which he 
 
 Lampet's case, 10 Co. 46 : and see says : " On the whole the differ- 
 
 Mr. Eraser's notes in his edition of " ence seems to be this, that if a 
 
 Coke's Eeports. " lease be made for life or years, 
 
 (n) Co. Lit. 54, b. In the " with a remainder to the exe- 
 former editions of this work " cutors of the lessee, it shall be a 
 reference was made at length to " vested interest in the lessee, and, 
 the cases of Sparke v. Sparke " consequently, if he dies intes- 
 (Cro. Eliz. 663) ; Sparke v. Sparke " tate shall go to his adminis- 
 (Cro. Eliz. 840) ; Cranmer's Case " trator. But if there be a lease 
 (Dyer, 309); Finch v. Finch "for ninety-nine years, if the 
 (Moor. 339) ; and Remington v. " lessee live so long, with a pro- 
 Savage (Moor. 745), together with " viso that if he die within the 
 the MS. note by Mr. Serjeant " term it should be to his 
 Hill in his copy of Viner in " executors for forty years, this 
 Lincoln's Inn Library, with a "last term shall not vest in the 
 view to reconcile the conflicting "lessee but in his executors by 
 decisions on this subject. It is " purchase, because it is a condi- 
 not thought desirable to do more " tional limitation and a mere
 
 61G Of the Quantity of an Executor'' s Estate, [Pt. ii. Bk. ii. 
 
 Administrator It has been Several times laid down, that if a remainder be 
 assignee by limited to a man's executors and assigns, as purchasers, there 
 purchase. j^-g administrator cannot take as assignee (o). 
 
 "possibility to vest, for this is the " 1617." 
 
 "point agreed in Cro. Eliz. 841. (o) See Sparke r. Sparke, Owen, 
 
 " Qucere tamen whether it would 125. Sparke v. Sparke, Cro. Eliz. 
 
 "not now be considered as more 840, 841. 
 
 " than a possibility. See Feame,
 
 617 
 
 CHAPTER THE SECOND. 
 
 OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR IN THE 
 CHATTELS PERSONAL OF THE DECEASED IN POSSESSION. 
 
 Chattels personal are, properly and strictly speaking, 
 things moveable ; which may be annexed to, or attendant on, 
 the person of the owner, and carried about with him from 
 one part of the world to another. Such are animals, house- ■v^hat .are 
 hold stuff, money, jewels, corn, garments, and everything chattels 
 else that can be properly put in motion, and transferred 
 from place to place {a). All these, and other things of the 
 same nature, generally speaking, belong to the estate of the 
 executor or administrator. 
 
 It is proposed to consider this subject in the usual divisions ; 
 1. Chattels animate. 2. Chattels vegetable. 3. Chattels 
 inanimate. 
 
 SECTION I. 
 
 Of the Estate of an Executor or Administrator in Chattels 
 
 Animate. 
 
 Chattels animate may be sub-divided into such as arc Domiuc 
 domestic and such as are ferce naturcB. In such as are of a "'^^"''"^• 
 nature tame and domestic (as horses, dogs, kine, sheep, 
 poultry, and the like), a man may have an absolute property, 
 and they are therefore capable of being transmitted, like any 
 other personal chattel, to his executor or administrator (J)). 
 In those of a wild nature, i.e. such as are usually found at Ferccnaturcc. 
 
 (a) 2 Black. Comra. 387, 388. clear at tliis day, that tliey would 
 
 (b) 4 Burn. E. L. 297. It is go to the executor or adminis- 
 said, indeed, in Swinhume, Pt. 7, trator as chattels personal. " And 
 s. 10, pi. 8, p. 929, 7th edit., and why not 1 " says the author of the 
 in Noy's Maxims, p. 107, that Office of Executor (supposed to 
 hawks and hounds shall go to the be Mr. Justice Doddridge), " for 
 heir with the estate. ]'>nt it seems although hounds, greyhounds, and
 
 proiJcrty 2'>cr 
 indusiriuni in 
 animals fene 
 naturcc goes to 
 executors : 
 
 618 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 liberty and waudcring at large, generally speaking, a man can 
 have no property transmissible to bis representatives (c). 
 
 But a qualified property may subsist in animals of the 
 latter class, iicr indnstnam hominis, by a man's reclaiming 
 them and making them tame by art, industry, or education, 
 or by so confining them within his own immediate power, 
 that they cannot escape and use their natural liberty (rf)> 
 and the animals so reclaimed or confined belong to the 
 executor or administrator. Thus, if the deceased have any 
 tame pigeons, deer, rabbits, pheasants or partridges, they 
 shall go to his executors or administrators : So, though they 
 were not tame, yet if they were kept alive, in any room, 
 cage or such like place ; as fish in a trunk {e). But if at 
 any time they regain their natural liberty, the property 
 instantly ceases, unless they have animum revertendi, which 
 is only to be known by their usual custom of returning (/). 
 A qualified property may also subsist in animals fe7'(S naturcE 
 l^ropter imjjotentiam ; as in young pigeons, who though not 
 tame, being in the dove-house, are not able to fly out ; and 
 they shall go to the executors or administrators {g). 
 What animals The animals which a man has ratione privilegii are con- 
 the inherit- sidcrcd as incident to the freehold and inheritance, and do 
 ance and shall ^q^^ p^gg ^q ^]^q exccutor or administrator. Thus deer in a 
 
 not go to the '■ 
 
 executor: park (//) {i.e. as it should seem, in a park properly so called 
 
 Deer in a which must be either by grant or prescription) (i), conies in 
 
 property 
 propter impo- 
 tent iam in 
 them. 
 
 spaniels be for the most part but 
 things of pleasure, that hindereth 
 not but they may be valuable, as 
 well as instruments of music, both 
 tending to delight and exhilarate 
 the spirits : a cry of hounds hath, 
 to my sense, more spirit and 
 vivacity than any other." Wentw. 
 Off. Ex. 143, 14th edit. 
 
 (c) 2 Black. Comm. 390, 391. 
 
 (d) 2 Black. Comm. 390. 
 
 (e) Wentw. Off. Ex. 143, 14th 
 edit. 
 
 (/) 2 Black. Comm. 302. 
 
 (fj) Wentw. Off. Ex. 143, 14th 
 edit. 
 
 (/(,) Co. Lit. 8, a. Wentw. Off. 
 Ex. 127, 14th edition. 
 
 (i) Davis v. Powell, Willes, 46, 
 in which case it was held, that 
 deer in an enclosed ground, in 
 which deer had been usually kept, 
 and which was therefore called a 
 park, might be distrained for rent. 
 And it has been lately held that 
 deer in an ancient and legal i>ark 
 7)! 177/ be so tame and reclaimed from 
 their natural wild state as to pass
 
 Ch. 11. § I.] Of Chattels Animate. 619 
 
 a warren, doves in a dove-house, will not go to the executor Conie? in a 
 
 .. , ATT • TiTT warren : 
 
 or administrator (A;). And the reason assigned by Lord ^ 
 
 ^ ' o J Doves in a 
 
 Coke, is, because, without them, the inheritance would be dove-house: 
 incomplete. Another and more obvious reason mentioned 
 by Lord Coke in the same case, is, that the deceased had not 
 any property in them {I). 
 
 So, if a man buys fish, as carps, bream, tenches, &c., and Fisli -. 
 puts them into his pond, and dies, in this case the heir who 
 has the water shall have them, and not the executors ; but 
 they shall go with the inheritance ; because they were at 
 liberty and could not be gotten without industry, as by nets 
 and other engines {m), otherwise (as it has already been 
 said) («), if they are in a trunk, or in a net, or the like ; for 
 then they are severed from the soil (o). 
 
 But if the deceased has only a term for years in the lands but if tiie 
 in which the park, warren, dove-house, or pond is situate, termor for 
 the deer, conies, doves, and fish will go to the executor or j^^j^^'fl^jf ^^ 
 administrator as accessory chattels, following the estate of go to the 
 
 ,...,., , , , > executor : 
 
 their principal; viz., the park, warren, dove-house, or pond {irj. 
 
 It must, however, be understood, that the executor or ad- 
 ministrator can have no further interest than the deceased 
 
 to executors as personal property : 393. In Hannam v. Mockett, 2 
 
 Morgan v. Earl of Abergavenny, B. & C. 944, Baylej'-, J., says, that 
 
 8 C. B. 768. Ford v. Tynte, 2 bees are property, and are the 
 
 John. & H. 150. subject of larceny. The reader 
 
 (Ic) Com.Dig. Biens(B.),Wentw. is also referred on these matters 
 
 Olf. Ex. 127, 14th edition. generally, to the Treatise on the 
 
 {I) The case of Swans, 7 Co. Law of Fixtures, &c., p. 167, 
 
 17, 6. But though animals ferce et seq., by Messrs. Amos and 
 
 naturce are not, while living, the Ferard, from which excellent 
 
 personal chattels of the owner of work the author has derived great 
 
 the soil, yet if they are found and assistance in compiling tliis and 
 
 killed on the land by a trespasser, the following part of the present 
 
 the qualified property in them Book. 
 
 ratione soli becomes absolute in {m) Co. Lit. 8, a. 
 
 the owner of the soil : Blades v. (n) Ante, p. 618. 
 
 Higgs, 12 C. B., N. S. 501. 13 (o) Bac. Abr. tit. Executors 
 
 C. B., N. S. 844 : Affirmed in (IL 3), vol. iii. 64. 
 
 Dom. Proc, 11 Jurist, N. S. 701. (p) Wentw. Off. Ex. 127, 14th 
 
 As to Bees, see 2 Black. Comm. edit. Godolph. Pt. 2, c. 13, s. 4.
 
 620 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 bad in them, i.e. a right to take to his own use as many as 
 be pleases, during his term, provided be leaves enough for 
 the stores ; for if a lessee for years of a park, vivary, warren, 
 or dove-house, kills so many of the deer, fish, game, or 
 doves, that there is not sufficient left for the stores, it 
 is waste {q), and will be equally waste in bis executor or 
 administrator. 
 
 SECTION II. 
 
 Of the Estate of an Executor or Administrator in Chattels 
 
 Vegetable. 
 
 What growing Personal effects of a vegetable nature are the fruit or other 
 totheiieir:'' parts of a plant or tree, when severed from the body of it, or 
 the whole plant or tree itself, when severed from the ground (?•)• 
 But unless they have been severed, trees, and the fruit and 
 produce of them, from their intimate connexion with the soil, 
 follow the nature of their principal, and therefore, when the 
 owner of the land dies, they descend to his heir, and do not 
 Trees and fruit pass to bis executor or administrator (s). Hence apples, 
 no severe . pg^rs, and other fruits, if banging on the trees at the time of 
 the death of the ancestor, shall go to bis heir, and not to bis 
 executor or administrator {t). So it is of hedges, bushes, &c. ; 
 for all these are the natural or permanent profit of the earth, 
 and are reputed parcel of the ground whereon they grow, 
 certain cases Somc cascs, bowcvcr, exist, where even growing timber 
 
 t^eergo™o"the ^rees, are, owing to special circumstances, considered as 
 executor : chattels, and as such will pass to the executor or adminis- 
 
 trator. Thus, if tenant in fee simple grants away the trees 
 they are absolutely passed from the grantor and bis heirs, and 
 vested in the grantee ; and if the latter should die before they 
 are felled, they will go to bis executor or administrator : for 
 
 (g) Co. Lit. 53, a. (t) Swinb. Pt. 7, s. 10, pi. 8. 
 
 (r) 2 Black. Comm. 389. Wentw. Off. Ex. 146, 147, 14th 
 
 (s) Swinb. Pt. 7, s. 10, pi. 8. edit. RodweU v. PhUlips, 9 M. & 
 
 Ee Ainslie, 30 C. D. 485. W. 501.
 
 Cli. 11. § II.] In Chattels Vegetable— Trees. 621 
 
 in consideration of law, they are divided as chattels from the 
 freehold {u). So where tenant in fee simple sells the land 
 and reserves the trees from the sale, the trees are in property 
 divided from the land, although, in fact, they remain annexed 
 to it, and will pass to the executors or administrators of the 
 vendor {x). But if the person so entitled to the trees distinct 
 from the land, afterwards purchases the inheritance, the trees 
 will be re-united to the freehold in property, as they are 
 de facto, and descend to the heir {y). Yet if the tenant in 
 fee simple lease the land for years, excepting the trees, and 
 afterwards grants the trees to the lessee, they are not by this 
 means re-annexed to the inheritance, but the lessee has an 
 absolute property in them, which will go to his executors or 
 administrators {z). 
 
 So if tenant in tail sells the trees to another, they are a 
 chattel in the vendee, and his executors or administrators 
 shall have them ; and in such case also, fictione juris, they 
 are severed from the land ; but if the tenant in tail dies 
 before actual severance, as to the issue in tail, they are part 
 of his inheritance, and shall go with it, and the vendee or 
 his executor cannot take them {a). The law, it may be 
 presumed, is the same with respect to the vendee of a tenant 
 in tail after possibility of issue extinct, or a tenant for life 
 without impeachment of waste {li). And it seems that Equity 
 would not afford relief (c). 
 
 With respect to the property in trees and bushes when when trees, 
 severed, there seems to be a material difference between such severed go to 
 trees as, by the general law of the land, or by the custom of ^^^ executor. 
 
 (m) Stukeley v. Butler, Hob. be felled with a goose quill. 
 
 173. Wentw. Off. Ex. 148, 14th Qj) Pyne v. Dor, 1 T. R. 55. 
 
 edit. Com. Dig. Biens (H). Bishop of London v. Webb, 1 P. 
 
 (x) Herlakenden's case, 4 Co. Wms. 528. 
 
 G3, h. Wentw. uU supra. (c) See Treat, on Equity, B. 1, 
 
 ()/) 4 Co. 63, b. Anon. Owen. c. 4, s. 19, that no act of tenant in 
 
 49. tail shall be carried into execution 
 
 (,■:;) 4 Co. 63, b. in a Court of Eij[uity, any furtlicr 
 
 (a) Lif(jrd's case, 11 Co. 50, a : than at law : for this would be to 
 
 for, it was said, timber trees cannot repeal the statute de donis.
 
 G'22 
 
 Of the Qaantitij of an Execut07-^s Estate. [Pt. ii. Bk. ii. 
 
 Emblements 
 
 the country where they grow, are timber, and such as are 
 not. For if tenant in dower, or by the curtesy, or tenant for 
 life or years, unless he be so without impeachment of waste, 
 cuts down timber trees, or a stranger does so, or the wind 
 blows them down, the trees so severed shall not go to the 
 tenant, or to his executor, but to the owner of the first estate 
 of inheritance in the land {d). On the other hand, if such a 
 tenant cuts down hedges or trees, not timber, or they are 
 severed by the act of God, the tenant shall have them {e) : 
 and, consequently, his executor or administrator. So if trees 
 are blown down, which are in their nature timber, but are 
 dotards without any timber in them (/), or if such are wrong- 
 fully severed by the lessor, they belong to the tenant, and 
 will pass to his executors (g). 
 
 There are, however, certain vegetable products of the 
 earth, which, although they are annexed to and growing 
 upon the land at the time of the occupier's death, yet, as 
 
 ((/) Herlakenclen's case, 4 Co. 
 63, a. Bewick v. Whitfield, 3 P. 
 Wms. 268 ; in which case Lord 
 Chancellor Talbot said, that this 
 was so decreed upon the occasion 
 of the great windfall of timber on 
 the Cavendish estate. So if tenant 
 for life without impeachment of 
 waste commits equitable waste by- 
 cutting ornamental timber : Lush- 
 ington V. Boldero, 15 Beav. 1. 
 Ormonde v. Kynnersley, ibid. 10. 
 But a tenant for life, though sub- 
 ject to impeachment for waste, is 
 entitled to the interest of money 
 produced by the sale of timber 
 trees cut by order of the Court of 
 Chancery, on account of their being 
 in a decaying state, by reason of 
 standing too thickly : Tooker v. 
 Annesley, 5 Sim. 235. Consett v. 
 Bell, 1 Y. & CoU. C. C. 569. 
 
 (e) Com. Dig. Biens (H). Berry- 
 man V. Peacock, 9 Bingh. 384. A 
 
 testator de\d8ed estates on which 
 there were plantations of larch 
 trees. At the time of his death a 
 great number of the larch trees had 
 been more or less blown down by 
 extraordinary gales. The Court 
 of Appeal held tliat, having regard 
 to the maxim quidquid i)lantatur 
 solo, solo cedit, the principle 
 applicable was that, if a tree was 
 attached to the soil, it was real 
 estate, and if severed, personalty : 
 that the life and manner of growth 
 of any particular tree was no test 
 of its attachment to the soil, and 
 that the degree of attachment or 
 severance was a question of fact in 
 the case of each particular tree : 
 Re Ainslie, 30 C. D. 485. 
 
 (/) Herlakenden's case, 4 Co. 
 63, a. b. Countess of Cumber- 
 land's case, Moore, 812. 
 
 (g) Chaunon v. Patch, 5 B. & C. 
 897.
 
 Cli. II. § II.] In Chattels Vegetable — Emblements. 623 
 
 between the executor or administrator of the person seised 
 of the inheritance, and the heir, in some cases, and between 
 the executor or administrator of the tenant for life, and the 
 remainder-man or reversioner, in others, are considered by 
 the law as chattels (/t), and will pass as such. These are 
 usually called emblements. 
 
 The vegetable chattels so named, are the corn and other 
 growth of the earth, which are produced annually, not spon- 
 taneously, but by labour and industry, and thence are called 
 fructus indnstriales. When the occupier of the land, whether 
 he be the owner of the inheritance or of an estate deter- 
 mining with his own life, has sown or planted the soil with 
 the intention of raising a crop of such a nature and dies 
 before harvest time, the law gives to his executors or admi- 
 nistrators the profits of the crop Emhlavence de bled, or 
 Emblements, to compensate for the labour and expense of 
 tilling, manuring, and sowing the land (i). The rule is 
 established as well for the encouragement of husbandry and 
 the public benefit (k), as on the consideration, in the case 
 of tenant for life, that the estate is determined by act of 
 God, and that the maxim of law is, actus Dei nemlni facit 
 injuriam (l). 
 
 (h) They are in fact not only in Littledale, Justices, in Evans v. 
 this respect, but in most others Eoberts, 5 B. & C. 829 ; and of 
 looked upon as chattels : for the Hullock, B., in Scorell v. Boxall, 
 rule seems now to he established, 1 Younge & Jerv. 398. See also 
 that all those vegetables wliich go Jones v. Flint, 10 A. & E. 753. 
 to the executor, and not to the heir, In the case of Brantom v. Grifhts, 
 are for most purposes considered 1 C. P. D. 349, it was held that 
 mere chattels. They may conse- growing crops are not personal 
 quently be seized and sold under a chattels within the Bills of Sale 
 fieri facias; and the sale of them Act, 1854. Growing crops, how- 
 while growing is not a contract, ever, if separately assigned are 
 or sale of any lands, tenements, or personal chattels within the Bills 
 hereditaments, or any interest in of Sale Acts, 1878 and 1882. 
 or concerning them, within the 4th (i) Swinb. Pt. 7, s. 10, pi. 8. 
 section of the Statute of Frauds : (/c) 2 Black. Comm. 122, 
 but a sale of goods, wares, and mer- (I) By Lord Hardwicke, in Law- 
 chandize, within the 17th section : ton v. Lawton, 3 Atk. 1(5. 
 See the judgments of Bayley and
 
 624 Of the Quantity of an Executor'' s Estate. [Pt. ii. Bk. ii. 
 
 to what 
 produce the 
 doctrine of 
 emblements 
 extends : 
 
 corn, hemp, 
 Hax, saffron, 
 &c.: 
 
 melons : ho^js 
 potatoes : 
 
 not to frnits 
 growing : 
 
 or young trees 
 planted : 
 
 nursery 
 grounds, &c. : 
 
 The doctrine of emblements extends not only to corn and 
 grain of all kinds, but to every thing of an artificial and 
 annual profit, that is produced by labour and manurance {m) : 
 as hemp, flax, safiron, and the like (n) ; and melons of all 
 kinds (o) ; and hops also, although they spring from old 
 ; roots, because they are annually manured, and require culti- 
 vation (j9) ; and so of potatoes {q). 
 
 But the rule does not apply (as it has already appeared), 
 to fruit growing on trees (r) ; nor to the plantation of trees : 
 for the general rule is, quidquid ijlantatur solo, solo cedit ; 
 and when a man plants a tree, he cannot be presumed to 
 plant it in contemplation of any present profit ; but merely 
 t with a prospect of its being useful to him in future, and 
 to future successions of tenants (s). Therefore, if a man 
 sow the land with acorns, or plant young fruit trees, or oak, 
 elm, ash, or other trees, these cannot be comprehended 
 under emblements (t). The case of trees, shrubs, and other 
 produce of their grounds planted by gardeners and nursery- 
 men, with an express view to sale, may be mentioned as an 
 exception ; for they are removable by them or their executors, 
 as emblements are («). 
 
 (m) Co. Lit. 55, b. 
 
 (n) Ibid. Wentw. Off. Ex. 147, 
 14th edition. 
 
 (o) Wentw. Off. Ex. 153, 14th 
 edit. The author of that book ex- 
 presses his opinion, that artichokes 
 go to the heir, as they have not 
 that yearly setting or mannrance 
 as should sever them in interest 
 from the soil : Ibid, sed quwre. 
 
 {p) The authorities, however, 
 do not prove that the person who 
 planted the young hops, or his 
 personal representatives, will be 
 entitled to the first crop, whenever 
 produced : Graves v. Weld, 5 B. & 
 Adol. 105, 120. As to Teazles, see 
 Kingsbury v. Collins, 4 Bing. 202. 
 
 (g) Evans v. Eoberts, 5 B. & C. 
 832, by Bayley, J. It is said in 
 
 Godolphin, Pt. 2, c. 14, s. 1, that 
 things under ground, whether in 
 gardens or elsewhere, as carrots, 
 parsnips, turnips, or skerrets, shall 
 go to the heir ; and the same is 
 said in Wentw. Off. Ex. 152, 14tli 
 edit., on the principle that the 
 executors could not reach them 
 without digging and breaking the 
 soil. But Lord Coke says, that if 
 the tenant plant roots, his executors 
 shall have that year's crop : Co. 
 Lit. 55, h. : and probably at this 
 day it would be so holden. See 
 2 Black. Comm. 123. 
 
 (»•) Ante, ]x 620. 
 
 (*•) Gilb. Ev. 210. 2 Black. 
 Comni. 123. 
 
 (0 Co. Lit. 55 b. 
 
 (u) Penton v. Robart, 2 East, 90,
 
 Cli. 11. § II.] In Chattels Vegetahle — Emblements. 625 
 
 The growing crop of grass, even if sown from seed, and grass: 
 though ready to be cut for hay, cannot be taken as emble- 
 ments ; because, as it is said, the improvement is not dis- 
 tinguishable from what is natural product, although it may 
 be increased by cultivation {x). It seems, however, that the artificial 
 artificial grasses, such as clover, saint-foin, and the like, by 
 reason of the greater care and labour necessary for their 
 production, are within the rule of emblements (?/). 
 
 But the doctrine of emblements extends to a crop of that second year's 
 species only which ordinarily repays the labour, by which 
 it is produced, within the year in which that labour is 
 bestowed, though the crop may in extraordinary seasons be 
 delayed beyond that period (^). In Graven \. Weld {a), the 
 tenant for a term determinable upon a life sowed the land 
 in spring, first with barley and soon after with clover : The 
 life expired in the following summer : In the autumn the 
 tenant mowed the barley, together with a little of the 
 clover plant, which had sprung up : The clover so taken 
 made the barley-straw more valuable, by being mixed with 
 it : but the increase of the value did not compensate for the 
 
 in Lord Kenyon's judgment : Lee 655, that a tenant (not a gardener 
 
 V. Risdon, 7 Taunt. 191, in the by trade) cannot remove a border 
 
 judgment of Gibbs, C. J. : and see of box planted by himself on the 
 
 the remark of Lawrence, J., in demised premises : And in this 
 
 3 East, 44, note (c). But where a case Littledale, J., denied that the 
 
 tenant, not being a nurseryman tenant could remove flowers which 
 
 by trade, makes a nursery for he had planted, 
 
 fruit trees, for the purpose of trans- (.i) Gilb. Ev. 215, 216. See 
 
 planting to the orchards, he has no also Evans v. Roberts, 5 B. & C. 
 
 right to sell them : by Heath, J., 829, 832, in the judgment of 
 
 in Wyndham v. Way, 4 Taunt. Bayley, J. 
 
 316. Lord EUenborough held at {y) 4 Burn, E. L. 299. No case 
 
 Nisi Prius, that it was waste for an seems to have occurred wliere these 
 
 outgoing tenant of garden ground matters have come in question, 
 
 to plough up strawberry beds in The general right seems to have 
 
 full bearing, although when he been admitted in (iraves v. Weld, 
 
 came in he paid lor them at a uhi .vipra. 
 
 valuation : Wetherell v. llu wells, (;;) (Graves v. Weld, 5 B. & Adul. 
 
 1 Campb. 227. And it was held 105, 118. 
 
 in Empson v. Soden, 4 B. & Adol. {a) 5 B. & Adol. 105. 
 
 W.E. — VOL. I. S S
 
 626 
 
 In what cases 
 tbe executor is 
 entitled to 
 emblements : 
 
 as against tbe 
 heir: 
 
 Of the QiuDititij of an Executors Estate. [Pt. ii. Bk. ii. 
 
 expense of cultivating the clover, and a farmer would not 
 be repaid such expense in the autumn of the year in which 
 it was sown : The reversioner came into possession in the 
 winter, and took two crops of the same clover, after more 
 than a year had elapsed from the sowing : It was held that 
 the tenant was not entitled to emblements of either of these 
 two crops : first, because emblements can be claimed only in 
 a crop of a species which ordinarily repays the labour by 
 which it is produced within the year in which that labour 
 is bestowed ; and, secondly, because, even if the plaintiff 
 were entitled to one crop of the vegetable growing at the 
 time of the cesser of his interest, this had been already taken 
 by him at the time of cutting the barley. 
 
 It remains to consider in what cases the executor or 
 administrator is entitled to emblements. Where the deceased 
 was seised in fee simple of the land, his personal represen- 
 tatives are entitled to emblements as against the heir {b) : 
 though not as against a dowress (c). So if the deceased 
 was seised in fee tail, his executor or administrator is entitled 
 to the privilege as against the h^ir in tail ((7). But where a 
 man is seised of the soil as joint-tenant, and dies, the corn, 
 &c., sown, goes to the survivor, and the moiety shall not go 
 to the executors or administrators of the deceased (e) : Yet 
 if a joint-tenant agree that his companion shall occupy and 
 sow all the laud, who sows and dies before severance, his 
 executors shall have the emblements (/). 
 
 It must be observed, however, that if a man seised in fee 
 sows the land and then conveys it away, and dies before 
 severance, the crops will not go to the executor of him who 
 has conveyed away the land, but will pass with the soil 
 as appertaining to it (g). 
 
 (b) Lawton v. Lawton, 3 Atk. 16. 
 
 (c) Hee post, pp. 630, 631. 
 
 (d) Weiitw. Off. Ex. 14.5, 14th 
 edit. 
 
 (e) The reason for this is that 
 joint-tenants are supposed to carry 
 on the cultivation of the soil hy a 
 
 joint stock, and in all joint stock, 
 except merchants', there is a sur- 
 vivorship : Gilb. Ev. 212, 213 : 
 Lut see ante, pp. 570, et seq. 
 
 (/) James v. Portman, Owen, 
 102. 
 
 {(j) Gilb. Ev. 214.
 
 Cli. 11. § II.] In Chattels Vegetable — Emblements. 627 
 
 In like manner, the executor of a tenant in fee does not as against a 
 
 dGYlSGG * 
 
 enjoy tlie right to emblements as against a devisee ; for if 
 the land itself is devised, the growing crops pass to the 
 devisee, and the executor is excluded (li). And though the 
 devise was made before sowing, and the devisor afterwards 
 sows, and dies before severance, the devisee shall have them, 
 and not the executor (i). So, if the testator, being seised 
 in fee, sows the land, and devises it to A. for life, (without 
 any remainders over,) and the testator and A. both die 
 before severance, the executors of A. shall have the crop, 
 though A. did not sow (k). This rule is founded upon a 
 presumption that it is the will of the testator, that he who 
 takes the land should take the crops which belong to it ; 
 because every man's donation shall be taken most strongly 
 against himself (I). 
 
 However, this distinction between the heir and devisee, 
 though fully established, is mentioned by Lord EUenborough, 
 in TVest v. Moore (m), as capricious enough. And the pre- 
 sumption may be rebutted by words in the Will, that show 
 an intent that the executor shall have the emblements («). 
 Thus where the testator devised certain estates to A. in fee, 
 and to his executors all his money, &.C., stock upon his farm, 
 with the implements of husbandry, and all other his personal 
 estate of what nature or kind soever, in trust, to pay debts 
 and legacies, &c., it was held that the devise of the stock 
 upon his farm carried the standing crops of corn growing 
 there at the time of his death from the devisee of the land 
 to the executors ; although there were assets sufficient to 
 pay all the debts and legacies without that aid {o). So where 
 
 Qi) Cooper v. Woolfitt, 2 H. & dies before the severance, the wife 
 
 N. 122. shall have the corn, and not the 
 
 {i) Cora. Dig. Biens (G. 2). executors of the husband : for this 
 
 (k) Spencer's case. Winch. 51. is a disposition of the corn, being 
 
 Co. Lit. 55, h. note (2), from Hal. api)uitenant to the land : 1 IloU. 
 
 MriS. Abr. 727, pi. 18. Gilb. Ev. 214. 
 
 {1} (iilb. Ev. 214. On the same (m) 8 East, 339, 343. 
 
 ground, if a man seised in fee sows («) 8 East, 343, by Lord Ellen- 
 
 copyliold lands, and surrenders borough. 
 
 them to the use of his wife, and (o'> West v, Moure, 8 East, 339. 
 
 s s '2
 
 628 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 Right of 
 executor of 
 tenant for life 
 to emblements. 
 
 there is expressly a legatee of the growing crops, or any 
 specific bequest in the Will which can apply to emblements, 
 they will vest in the executor, and after his assent, in the 
 specific legatee ( li) . 
 
 The privilege of taking the emblements is by no means 
 confined to the case of the representatives of a person seised 
 of the inheritance, as against the heir ; but the rule is 
 general, that every one who has an uncertain estate or 
 interest, if his estate determines by the act of God before 
 severance of the crop, shall have the emblements, or they 
 shall go to his executor or administrator (q). Therefore, 
 the executor or administrator of a tenant for life is entitled 
 to emblements to the exclusion of the remainder-man or 
 reversioner : because in this case the estate of the tenant is 
 determined by the act of God (?•). So if tenant for years, si 
 
 Cox f. Godsalve, 6 East, 604, note. 
 Blake v. Gibbs, 5 Russ. 13, in notis. 
 Rudge V. Winnall, 12 Beav. 357. 
 lie Roose, 17 C. D. 696. See also 
 Godolphin, Pt. 3, c. 21, s. 14, 
 that by a bequest of "'Moveables" 
 the industrial fruits of the ground 
 will pass. But in Vaisey v. Rey- 
 nolds, 5 Russ. 12, Sir John Leach, 
 M. K, held that a gift of "all 
 farming stock " will not pass 
 crops on the ground as between a 
 particular and residuary legatee, 
 and that learned Judge observed 
 that in Cox v. Godsalve and West 
 V. Moore, the devisee was excluded 
 rather because the executor was 
 plainly meant to take the whole 
 personal estate than from the mere 
 force of the words " stock on my 
 farm." This case has, however, 
 been lately fully discussed by Sir 
 George Jessel, M. R., in his judg- 
 ment in lie Roose, vhi sup., and 
 disapproved by him. After citing 
 the older cases he comments upon 
 the distinction dra^vTi by Sir J. 
 Leach between Yaisey v. Reynolds 
 
 and those older cases and says : 
 "All I can say is, having read the 
 " case before Lord Ellenborough " 
 (West V. Moore), "I think Sir 
 " John Leach made a mistake. 
 " Lord Ellenborough says ' stock 
 " upon my farm ' in so many 
 " words passes the growing crops, 
 "showing that those were the 
 " words he relied upon. I am, 
 " therefore, of opinion that the 
 "distinction taken by Sir John 
 " Leach between those two cases " 
 (West V. Moore and Cox v. God- 
 salve), " and the case before him " 
 (Vaisey v. Reynolds), "is quite 
 " untenable." 
 
 (j)) Cox I". Godsalve, 6 East, 
 604, note to Crosby v. Wadsworth. 
 
 (q) Com. Dig. Biens (G. 2). 
 
 (?■) Co. Lit. 55, b. Where the 
 landlord is tenant for life, and by 
 his death the estate of his tenant 
 at rack-rent is determined, it is 
 enacted by stat. 14 & 15 Vict. 
 c. 25, 8. 1, that "instead of claims 
 " to emblements, the tenant shall 
 " continue to hold till the end of
 
 Ch. II. § II.] In Chattels Vegetable — Emblements. 
 
 629 
 
 tamdia vlxerit, sows, and dies before severance, his executor 
 shall have the corn, for the uncertainty of the determination 
 of his estate (s). 
 
 But there may be a case where the executor of the tenant 
 for life has no right to emblements, on account of the 
 deceased not having been the actual party who sowed the 
 land, and the consequent failure of the reason upon which 
 the right is founded. Thus if A., seised of land, sows it 
 and then conveys it or devises it to B. for life, remainder to 
 C. for life, and B. dies before the corn is reaped, in this 
 case B.'s executors shall not have the emblements, but 
 they shall go with the land to C. (t). And if A. seised in 
 fee, sows land and conveys it to B. for life, remainder to C. 
 for life, and both B. and C. die before severance, the crop 
 shall not go to the executors of either B. or C, but revert 
 to A. (;(). 
 
 " the then current year, and the 
 " new owner of the land shall 
 " be entitled to a proportion of 
 "the rent." Where H. held, as 
 tenant from year to year, of A., 
 tenant for life, a cottage with 
 about an acre of land, which was 
 partly cultivated as a garden, 
 and partly sown with corn and 
 planted with potatoes, and A. 
 died in the middle of a year of 
 H.'s tenancy, and M. tliereupon 
 became entitled to the reversion ; 
 and at the expiration of the then 
 current year of H.'s tenancy, dis- 
 trained for the proportion of tlie 
 rent due since the death of A., it 
 was held that the Act applied to 
 all tenancies in respect of whicli 
 there might be a claim to emble- 
 ments ; that, but for the Act, there 
 might have been a substantial 
 claim to emblements here, and that 
 the premises were, therefore, " a 
 farm or lands " within section 1 ; 
 and it was also held that that 
 section gave a right to distrain 
 
 for the rent, as well as to recover 
 it by action : Haines v. Welch, 
 L. R, 4 C. P. 91. 
 
 (s) 1 Eoll. Abr. Emblements 
 (A.) pi. 12, p. 727. 
 
 {t) Grantham v. Hawley, Hob. 
 135. So if a man sows land and 
 lets it for life, and the lessee for 
 life dies before the corn is severed, 
 his executor shall not have it, but 
 he in reversion. So if tenant for 
 life sows the land, and grants 
 over his estate, and the grantee 
 dies before the corn is severed, 
 his executor shall not have it : by 
 Popham and Gawdy, Justices in 
 Knevett v. Pool, Cro. Eliz. 464. 
 But if the devise be to B. for life, 
 without remainders over, and B. 
 dies before severance, the executor 
 of B. shall have the corn, though 
 B. did not sow : Winch. 51 Co. 
 Litt. 55, h. note (2), from Hal. 
 MSS. Ante, p. 627. 
 
 {u) Hobart, 132, in marcjine. 
 Gilb. Ev. 215 : but see the pre- 
 ceding note. •
 
 630 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 Right of 
 executors of 
 clergy to 
 emblements of 
 the glebe. 
 
 Dowress and 
 her executor!!, 
 when entitled 
 to emblements. 
 
 If a disseisor sow the land of tenant for life, and the tenant 
 for life die, the executors of the tenant for life shall have the 
 corn, and not the disseisor, nor he in reversion (x). 
 
 The executors or administrators of the incumbent of a 
 benefice would probably at common law be entitled to the 
 emblements of the glebe lands ; for the deceased had an 
 uncertain interest in the land, which was determined by the 
 act of God. The right, however, is fully established by the 
 statute 28 Hen. VIII. c. 11, which provides and enacts, that 
 in case any incumbent happens to die, and before his death 
 hath caused any of his glebe lands to be manured and sown 
 at his own proper costs and charges Anth any corn or grain, 
 that then in that case every such incumbent may make his 
 testament of all the profits of the corn growing upon the said 
 glebe so manured and sown {y). 
 
 If the successor be inducted before the severance of the 
 emblements from the ground, the successor shall have the 
 tithe thereof; for although the executor represents the person 
 of the testator, yet he cannot represent him as parson, 
 inasmuch as another is inducted {z) : Otherwise, if the parson 
 dies after severance from the ground, and before the corn is 
 carried off" {a). 
 
 If the husband sows the ground, and dies, and the heir 
 assigns the land sown to the wife for her dower, she shall 
 have the crop, and not the executors of the husband : for 
 she shall be in dc optima possessioue viri, above the title of 
 the executor [h). It was with reference to this especial 
 privilege of a dowress, that at common law she could not, 
 
 (,;;) Knevett v. Pool, Gouldsb. 
 146, by Popbani and Fenner. 
 
 {ij) This statute has been re- 
 pealed but the repeal probably 
 does not affect the rights of the 
 representative of an incumbent. 
 A person who resigns his living 
 is not entitled to emldements : 
 Bulwer v. Bulwer, 2 B. & A. 470. 
 The general rule of law is, that the 
 tenant shall not liave emblements 
 "wlu-n the teiiaiicv is determined 
 
 by his own act ; as where the 
 lessee surrenders, or a woman who 
 is tenant durante viduitate marries, 
 or the estate determines by for- 
 feitures, condition broken, &c. : 
 Com. Dig. Biens (G. 2). Davis v. 
 Eyton, 7 Bingh. 154. 
 
 \z) 1 Roll. Abr. 655. 
 
 (rt) Wats. C. L. 513, 4th edit. 
 3 Burn, El. 415, 8th edition. 
 
 (h) 2 Inst, 81.
 
 Cli. II. § II.] In Chattels Vegetable — Emblements. 631 
 
 according to the more general opinion, devise corn which 
 she herself had sown, nor did it go to her executors or 
 administrators (c) : hut by the statute of Merton, 20 Hen. 
 III. c. 2, the representatives of a tenant in dower, like those 
 of any other tenant for life, are entitled to emblements (d). 
 
 If tenant in dower sows the land, and takes husband, who Executor of a 
 
 , ,, , , husband of 
 
 dies before severance of the corn, the dowress shall have the dowress. 
 crops, and not the executor of the husband. 
 
 With respect to the executor of a man seised in right of his Executor of a 
 
 man seised iu 
 
 wife, the rule is, that if he sow and die before severance, his right of his 
 executors shall have the emblements (e). And if husband 
 
 Executor of 
 
 and wife are joint tenants lor life, and the husband sows, and husband when 
 the land survives to the wife, it is also said that she shall ^"^fg^^re jdut 
 have the corn (/). t*^"^"*^- 
 
 The executor or administrator of a jointress, like a tenant Right of 
 
 , , . executor of a 
 
 in dower, is entitled to emblements of the estate settled m jointress to 
 jointure ; but she is not entitled to them at her husband's emblements, 
 death to the exclusion of her husband's executors, as a 
 dowress is (g). 
 
 Upon the death of a tenant by the curtesy, like any other Right of 
 tenant for life, the emblements of the estate held by the tenant by the 
 curtesy will go to his executors or administrators (h). curtesy. 
 
 A tenancy at will (in the strict sense of the expression) is Right of 
 
 executor of 
 
 (c) Bract, lib. 2, fol. 96. 2 lust. s. 6, pi. 11, 253, 7th edition. All 
 
 81. questions, however, of the right of 
 
 {d) See Com. Dig. Biens (G. 2), the executor of a husband to the 
 
 that the statute was only in atfirm- emblements of his wife's land are 
 
 ance of the common law. If two comparatively unimportant since 
 
 be tenants in common of land in the passing of the Married 
 
 fee, and one of them takes a wife, Women's Property Act, 1882 : ior 
 
 and dies, and the wife is endowed, since that Act a husband can in 
 
 &c., and she and the other tenant no case be entitled in right of his 
 
 in common sow the land, &c., wife except where the marriage 
 
 and afterwards she makes her took place and the title to the 
 
 executors, and dies, the corn not property accrued before Jan. 1st, 
 
 being severed, now her executors 1883. 
 
 shall have the corn in common (/) Co. Litt. 5,^), h. 
 
 with him who held in common {(j) Fisher v. Forbes, 9 Vin. Abr. 
 
 with the tenant in dower : Perk. tit. Emblements, pi. 82, p. 373. 
 
 8. 523. (h) 1 Roper, Husband iind W'lie, 
 
 («) Co. Lit, 55, h, Swinlj. Pt. 3, 35, 2nd edit.
 
 C32 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 tenant at ■will 
 to emblements. 
 
 Entry, egress, 
 and regress, 
 to take the 
 emblements. 
 
 Eight of 
 executors of 
 tenant for life 
 to charge 
 holding with 
 compensation 
 jiaid under 
 46 k 47 Vict. 
 c. 61, s. 29. 
 
 determined by the death of the lessee, aud his executor or 
 administrator will be entitled to emblements (i). 
 
 When there is a right to emblements, the law gives a free 
 entry, egress, and regress, as much as is necessary, in order to 
 cut and carry them away [k). But the emblements do not 
 give a title to exclusive occupation ; and it is doubted in 
 Plowden's queries {l), whether the executors of a lessee for 
 life shall not pay rent for the land till the corn is ripe : though, 
 perhaps, says that author, the executors of tenant in fee simple 
 shall have the corn without paying for it. 
 
 Under the Agricultural Holdings Act, 1883, the executors 
 of a landlord tenant for life, who have been compelled under 
 the Act to pay compensation for improvements to an outgoing 
 tenant who had claimed compensation, and whose tenancy had 
 been determined before the death of the landlord, are entitled 
 to a charge upon the holding in respect of the amount which 
 they have so paid {II). 
 
 What chattels 
 personal 
 inanimate do 
 not pass to the 
 executor. 
 
 SECTION IIL 
 
 Of the Estate of an Executor or Administrator in Chattels 
 
 Personal Inanimate. 
 
 As to chattels personal inanimate : All these pass to the 
 executor and administrator : and although any one of them 
 should be specifically bequeathed to a legatee, it will not 
 vest in him till the executor has assented. 
 
 It is necessary to attend to three instances in which the 
 right of the executor or administrator to the chattels personal 
 inanimate of the deceased is barred, to some extent, in favour 
 of certain special claimants : 1. Heir-looms, and things in the 
 nature thereof, in respect of the heir or successor. 2. Fix- 
 tures, in respect of the heir or devisee, or in respect of the 
 remainder-man or reversioner. 3. Paraphernalia and the 
 like, in respect of the widow. 
 
 (i) Co. Lit. 55, h. 
 (k) Co. Lit. 56, a. See Hayliiij 
 V. Okey, 8 Exch. 5.31, 545. 
 
 (0 239th Query. 
 (U) Gougli V. Gough [1891], 2 
 Q. B. 665.
 
 oil. II. § III.] Of Heir-Looms. 633 
 
 1. Ilcir-looms and things in the nature thereof. 
 
 It is proposed to consider, 1, Heir-looms and things of 1. Heir looms : 
 the same nature, from which the executor or administrator 
 is excluded in favour of the heir or successor. Heir-looms 
 are such goods and personal chattels as shall go hy special 
 custom to the heir along with the inheritance, and not to 
 the executor or administrator of the last proprietor. The 
 termination " loom "is of Saxon original, in which language 
 it signifies a limb or member : so that heir-loom is nothing 
 else but a limb or member of the inheritance {m). An heir- 
 loom is also called *'principalium," a chief or principal, and 
 *' haereditarium " {n). 
 
 Brooke says (o), that heir-looms are those things which wiiat they are 
 have continually gone with the capital messuage, by custom, ^ "*^ ^ ' 
 which is the best thing of every sort, as of beds, tables, pots, 
 pans, and such like of dead chattels moveable. And Lord 
 Coke says {p), that heir-looms are due by custom, and not by 
 the common law, and that the heir may have an action for 
 them at common law, and shall not sue for them in the 
 Ecclesiastical Court. Also in Spelman's Glossary {q), an 
 heir-loom is defined to be " omne utensile robustius quod 
 ab gedibus non facile revellitur, ideoque ex more quorundam 
 locorum ad haeredem transit tanquam membrum hsereditatis." 
 And in Les Termes de la Ley (r), (a book of great antiquity 
 and accuracy) (s), an heir-loom is described to be "any piece 
 
 (m) 2 Black. Comm. 427. But it ; an interpretation hardly to be 
 
 in Byng v. Byng, 10 H. of L. 171, reconciled with an absolute gift to 
 
 Lord Cranworth, on the authority several persons as joint-tenants : 
 
 of Johnson and Webster, said, he 10 H. of L, 183. 
 
 believed the more correct expla- (n) Bro. Di scent, pi. 43. Co. Lit. 
 
 nation of the word is, that it is an 18, h. 
 
 old Anglo-Saxon word signifying (o) Discent. pi. 43. 
 
 goods or chattels. According to (j)) Co. Lit. 18, b. 
 
 either derivation, it must mean (g) Voce, Heir-loom, 
 
 something which, though not by (r) See Treat, on Fixtures, 162. 
 
 its own nature heritable, is to have (s) Per Bayley, J., in Hewlins 
 
 a heritalilc cliaractcr impressed on r. Shippam, 5 B. & C. 229.
 
 634 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 must go to 
 the heir by 
 custom : 
 
 semhic, must 
 be of a pon- 
 derous nature. 
 
 Crown jewels. 
 
 Ileir-looms are 
 nut devisable : 
 
 of liouscliold stuff (ascun parcel des utensils d'un mease,) 
 wliicli, hy the custom of some countries, having belonged to 
 a house for certain descents, goes with the house (after the 
 death of the owner) unto the heir and not to the executors." 
 Hence it seems to follow, that an heir-loom, in the strict 
 sense of the word, can only go to the heir by force of a 
 custom, and that in its nature it is a chattel distinct from 
 the freehold. Yet Blackstone (0 says that heir-looms are 
 " generally such things as cannot be taken away without 
 damaging or dismembering the freehold ; " and Lord Holt 
 is reported to have said at Nisi Prius, that goods in gross 
 cannot be an heir-loom, but they must be things fixed to the 
 freehold, as old tables, benches, &c. {u) ; which proposition 
 is not only adverse to the authorities above cited, with 
 regard to an heir-loom being a detached chattel, but is also 
 liable to the objection that the heir would not then take it 
 by custom, but as a thing annexed to the freehold at common 
 law. Moreover, in the report of Lord Petre v. Hen cage, by 
 Lord Raymond {x), Lord Holt merely says, "a jewel cannot 
 be an heir-loom, but only things ponderous, as carts, tables, 
 &c." (jj), which agrees with the above definition by Spelman, 
 " omne utensile rohiistius.'^ 
 
 The custom which entitles the heir must be strictly 
 proved (z). 
 
 The ancient jewels of the Crown are heir-looms, and shall 
 descend to the next successor (a). 
 
 If a man, says Lord Coke (h), be seised of a house, and 
 possessed of divers heir-looms that, by custom have gone 
 with the house from heir to heir, and by his Will deviseth 
 away the heir-looms, this devise is void ; for Littleton says. 
 
 (t) 2 Comm. 427. 
 
 (it) Lord Petre v. Heneage, 12 
 Mod. 520. 
 
 (x) Vol. i. p. 728. 
 
 (y) And Blackstone, in an earlier 
 part of his Commentaries, vol. ii. 
 p. 17, says, "an heir-loom or im- 
 
 plement of furniture, which by cus- 
 tom descends to the heir together 
 with a house, is neither land nor 
 tenements, hut a mere moveaLle." 
 
 (;.) 2 Black. Comm. 428. 
 
 (a) Co. Lit. 18, b. 
 
 (h) Co. Lit. 185, b.
 
 Cii. II. § III.] Of Ileir-Looms. ^<^^ 
 
 " the Will takes effect after his death, and hy his death the 
 heir-looms, by ancient custom, are vested in the heir, and 
 the law prefers the custom before the devise." And Lord 
 Coke, in another place observes, that the ancient jewels of 
 the Crown, being heir-looms, are not devisable by testa- 
 ment (c). So Lord Macclesfield in Tipping v. Tipping (d), 
 said, " I take it, bona paraphernalia are not devisable by the 
 husband from the wife, any more than heir-looms from the 
 heir " (e). Yet, during his life, the owner may sell or dispose but are aiien- 
 of them, as he may of the timber of the estate (/). ancestor in his 
 
 Besides heir-looms, properly so called, there are other lifetime, 
 instances of inanimate personal chattels, which the law gives jj^ture of heir- 
 to the heir, as part of his inheritance, and which may be 'o°"is • 
 considered as chattels in the nature of heir-looms. Thus 
 monuments, coat- armour, the sword, pennons, and other monuments. 
 
 Tin coat-armour, 
 
 ensigns of honour set up m memory ot the deceased, shall &c., &c., set 
 go to the heir of the deceased, as heir-looms in the manner "f jeceased"'" 
 of an inheritance (g) ; and it matters not that they are an- 
 nexed to the freehold, albeit that is in the parson (//). But coffin and 
 
 shroud : 
 
 the property of the shroud and coffin remains in the exe- 
 cutors or other person who was at the charge of the funeral : 
 and it may be laid to be theirs, in an indictment for stealing 
 them (i). 
 
 (c) Co. Lit. 18, b. (h) Co. Lit. 18, b. 1 Gibs. Cod. 
 
 ((/) 1 P. Wms. 730. 544. 2 Black. Comm. 429. 
 
 (c) See also to the same effect, (i) 2 Russell on Crimes, 5th 
 
 2 Black. Comin. 420. Com. Dig. edit. 256. If the executor lays a 
 
 Biens (B.). grave-stone on the testator in the 
 
 (/) 2 Black. Comm. 429. So the church, and sets up coat-armour, 
 
 king may dispose of the ancient and the vicar or parson removes 
 
 crown jewels Ly patent : Lord them or carries them away, an 
 
 Hastings v. Sir Archibald Doug- action on the case lies for either 
 
 las, Cro. Car. 344, by Berkeley the executor or the heir : Godb. 
 
 and Jones. 200, by Coke : i.e. (semble) if they 
 
 {(j) Corven's case, 12 Co. 105. were originally set up with a 
 
 See Stubs v. Stubs, 1 Ilurlst. & C. faculty: Seager v. Bowie, 1 Add. 
 
 257, as to the heir's riglit to a 541 : and see Spooner v. Brewster, 
 
 grant of arms I'rom the Heralds' 3 Bingh. 13(5. 
 ColU'ge.
 
 636 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii 
 
 Collar of S. S. 
 and garter. 
 
 ancient liom 
 
 Journals of the 
 House of 
 Lords : 
 
 Charters and 
 deeds belong- 
 ing to the in- 
 heritance, go 
 to the heir, 
 and not to the 
 executor ; 
 
 so of the box 
 in which they 
 are kept : 
 
 So though a testator devise all his jewels, kc, to his wife, 
 yet his garter and collar of S. S. shall go to his heir, in the 
 way of heir- looms (/.-). So where land is held by the tenure 
 of cornage, an ancient horn may go along with the inheri- 
 tance, as an heir-loom {I). 
 
 In the case of Upton v. Lord Ferrers (m), a question w-as 
 raised, whether the executor, or the heir-at-law of a peer of 
 Parliament having succeeded to the peerage, was entitled to 
 the Journals of the House of Lords, which are delivered to 
 peers ; The Master of the Piolls (Sir K. P. Arden) did not 
 determine the point ; but intimated an opinion that the heir- 
 at-law was entitled, observing, that a bishop gives a receipt 
 for the journals of his see : and upon the death of a peer, the 
 subsequent volumes only are delivered to the next lord. 
 
 Charters or deeds relating to the inheritance, are con- 
 sidered so much to savour of the realty, that the law for 
 some purposes does not account them to be chattels (n), but 
 provides, that they shall follow the land to which they relate, 
 and shall vest in the heir, as incident to the estate, to the 
 exclusion of the executor or administrator (o). So far has 
 the doctrine of charters and other written assurances con- 
 cerning the realty not being chattels been carried, that 
 larceny could not have been committed of them at common 
 law, the taking of them being considered (as of other things 
 which were part of the freehold), merely as a trespass and not 
 a felony (p). The very box or chest which has usuall}' been 
 employed for keeping them partakes of their nature, and goes 
 
 (/;) Earl of Northumberland's 
 
 case, Owen, 124. 
 
 (/) Pusey V. Pusey, 1 Yern. 273. 
 
 (m) 5 Ves. 801. 
 
 (n) By a grant of omnia bona d 
 catalla, charters concerning the 
 land shall not pass : Perk. s. 115. 
 Touchst. 97, 98. 
 
 (o) Godolph. Pt. 2, c. 14, s. 1. 
 Wentw. Ort. Ex, 153, 14th edition. 
 Co. Lit. 6, a, where Lord Coke 
 calls them the sinews of the land. 
 
 {]:>) 2 Eussell on Crimes, 141. 
 But this defect of the common law- 
 was remedied by stat. 7 &8 Geo. IV. 
 c. 29, s. 23, which, however, has 
 been rejiealed : and now by stat. 
 24 & 25 Vict. c. 97, s. 28, whoso- 
 ever shall steal or for any fraudu- 
 lent purpose destroy, cancel, obli- 
 terate or conceal the whole or any 
 part of any document of title to 
 lands, shall be guilty of felony : 
 2 Russell, 5th edit. 220.
 
 Cli. II. § III,] Of Heir-Looms. 637 
 
 to the heir, and not to the executor {q) ; and of that al?o, at 
 common law, no larceny could have been committed (r). 
 Some writers have taken a difference, that the executor shall 
 have the chest unless it be shut or sealed (s). But the weight 
 of authorities seems against any such distinction, and in 
 favour of the heir's general right {t). 
 
 But this rule applies to those deeds and writings only which 
 relate to the freehold and inheritance ; for such as regard 
 terms for years, goods, chattels, or debts, belong to the execu- 
 tor or administrator (»)• 
 
 Personal property may also be devised or limited in strict Chattels 
 settlement to one for life, with remainder to sons and devised as 
 daughters in tail, so as to be transmissible like heir- heir-looms, 
 looms (x). Thus a testator may devise or limit in strict , 
 settlement an estate and capital mansion, together with 
 personal property, as the plate, pjctures, library, furniture, 
 &c., therein, such plate, &c, to be enjoyed, together with the 
 house and estate, unalienable by the devisees in succession, 
 as far as the law will allow. But the chattels, whether 
 trustees be interposed or not, will be the absolute property 
 of the first person seised in tail, and on his death devolve on 
 his executors or administrators ; and be conformable to all the 
 other rules concerning executory devisees, so that the property 
 cannot be rendered unalienable longer than lives in being and 
 twenty-one years afterwards (?/). 
 
 If the chattels, therefore, which are intended to go as 
 
 {q) Godolpli. Pt. 2, c. 14, s. 1. pawned or pledged lor money, tliey 
 
 Wentw. Ott'. Ex. 156, 14th edit. are considered as chattels in the 
 
 Com. Dig. Biens (B.). hands of the creditor, and in case 
 
 (r) An action will, however, lie of liis decease, they Avill go to his 
 
 at common law fur detinue or personal representatives as tlie 
 
 trover of title-deeds. party entitled to the benefit accru- 
 
 (s) Swinb. Pt. 6, s. 7, pi. 5. ing from the loan : Touchst. 469. 
 
 (<) Godolph. Pt. 2, c. 14, s. 1. (x) Co. Lit. 18, h, note (103), by 
 
 Wentw. Oir. Ex. 156. Ilargrave 
 
 (m) Wentw. Off. Ex. 153, 14th (//) IhUl. Carr v. Lord Errol, 
 
 edit. Bac. Abr. tit. Exors. (H. .3), 14 Ves. 478. 
 If the writings of an estate are
 
 638 Of the Quantity of an Executors Estate. [Pt. ii. Bk. il. 
 
 heir-looms, are merely subject to the same limitations as 
 the real estate limited in strict settlement, they will vest 
 absolutely in the first tenant in tail, though he should die 
 within an hour after his birth, and will go to his personal 
 representative : Hence as the real estate in that event 
 passes over to the next remainder-man, a separation between 
 the two properties ensues. It has been a subject of much 
 discussion whether this will be obviated by a mere direction 
 that the chattels shall go together with the land, " for so 
 long a time as the rules of law and equity will permit." 
 But the point, it should seem, must now be considered as 
 settled, that this must be treated as a direct and not as an 
 executory gift, and that, consequently, the absolute interest 
 in the chattels will nevertheless vest in the first tenant in 
 tail(^). And accordingly in the case of Bowland v. Mor- 
 gan (a), it was ruled by Sir James Wigram, V.-C, and after- 
 wards Lord Cottenham, C, on appeal, that a direction an- 
 nexed to a bequest of chattels, that they shall go as heir- 
 looms, although accompanied by a direction to the executors 
 to make an inventory of them, does not render such bequest 
 executory, or give to a Court of Equity any power to modify 
 the legal effect of the bequest. In order, therefore, to pre- 
 vent the separation, it is usual, after subjecting the chattels 
 to the same limitations as the freehold which they are to 
 accompany as heir-looms, to add a declaration, that they shall 
 not vest absolutely in the tenant in tail by purchase until 
 twenty-one, or death under that age, leaving issue inheritable 
 under the entail {b). 
 
 (z) Scarsdale v. Curzon, 1 John. C. D. 388. In the case of Shelley 
 
 & Hem. 40. Harrington t^. Harring- v. Shelley, ubi siqh, it was held by 
 
 ton, L. E., 3 Ch. 5(54 ; L. E., 5 Wood, V.-C, that the objection, if 
 
 H. L. 87. Christie v. Gosling, L. any, to limiting personal estate as 
 
 R., 1 H. L. 279. Holmesdale v. heir-looms where there is no real 
 
 West, L. R., 3 Eq. 474. HoUoway estate to guide the limitations does 
 
 ■j;. Webber, L.R., 6 Eq. 523. Shelley not apply to the case oi" family 
 
 V. Shelley, L. R., 6 Eq. 540. Re jewels. 
 Exmouth, 23 C. D. 158. Be Cress- (a) 6 Hare, 4G3. 
 
 well, 24 C. D. 102. Be Johnston, (b) 2 Jarman on Wills, 548, 3rd 
 
 2G C. D. 538. Be Cornwallis, 32 edit. Eoydell v. Golightly, 14
 
 Cli. II. § ii[.] Of Heir-Looms. 639 
 
 Lord Eldon, iu Clarke v. Lord Ormonde (c), said that heir- Executors 
 
 1 ^ • -x f 1 ^ n • D OUgllt ^ot to 
 
 looms are a kind of property that are rather lavourites oi apply them 
 
 the Court :— and that, although no testator can in any way to"theTayment 
 
 exempt any part of his personal estate from applicability to of ^^hu. 
 
 the payment of his debts, nor can he put into the hands of 
 
 his executors the means of defending themselves at law ; 
 
 yet where a testator makes a will, providing that certain 
 
 portions of his effects shall be treated as heir-looms, it is the 
 
 duty of the executors, as far as possible, to preserve those 
 
 parts of his property, and unless compelled, they ought not to 
 
 apply them to the payment of debts {d) . 
 
 In the case of a corporation sole, as a bishop or parson, Chattels which 
 the general rule is, that chattels cannot go in succession : fl!° * ^ f^JiV 
 
 o ' o cessor oi a cor- 
 
 and there has already been occasion to point out a strong poration sole 
 
 in the manner 
 
 instance of this doctrine, viz., that though a lease for years of heir-looms, 
 be made to a bishop and his successors, yet it will go to his 
 executors (e). But there are some exceptions (not only in 
 cases of choses in action, which will hereafter be examined, 
 but) in cases of chattels personal, which shall go to the suc- 
 cessor of a corporation sole in the manner of heir-looms. 
 Thus it has been held, that the ornaments of the chapel of 
 a preceding bishop belong to the succeeding bishop, and are 
 merely in succession (/)• So if an incumbent enter upon 
 a parsonage-house in which are hangings, grates, iron backs 
 to chimneys, and such like, not put up there by the last in- 
 cumbent, but which have gone from successor to successor, 
 the executor of the last incumbent shall not have them, but 
 they shall continue in the nature of heir-looms ; but if the 
 last incumbent fixed them there only for his own conveni- 
 
 Sim. 346, ^Jcr Shad well, V.-C. See v. Curzon {tihi supra), where all 
 
 also Potts V. Potts, 1 XL of L. G71, the previous cases are fully and 
 
 for an example of a limitation of most ably reviewed. 
 
 chattels under which they do not (c) 1 Jacob, 114, 115. 
 
 vest in the tenant in tail on his (d) 1 Jacob, 108. 
 
 birth. See further the observa- (e) Ante, p. 597. 
 
 tions of Wood, V.-C, on tliis case (/) Corven's case, 12 Co. 105, 
 
 in liis jud'Miieut in Lord Scarsdale 106.
 
 640 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 ence, it seems they shall be deemed as furniture, or household 
 goods, and shall go to his executor (^). 
 
 2. Fixtures. 
 
 Fixtures. II. Fixtures, from which the executor or administrator is 
 
 excluded in respect of the heir or devisee, or in respect of 
 the remainder-man or reversioner. When persona] inani- 
 mate chattels are affixed to th3 freehold, they are usually 
 denominated fixtures (li) ; and the questions concerning them, 
 which form the present subject of inquiry, have arisen in the 
 General rule, nature of exception to the general rule of law with regard to 
 latiir"sulf "oh chattels in their condition, viz., quicquid i^lantatur solo, 
 "'^*^- solo cedit, i.e., whatever is affixed to the realty is thereby 
 
 made parcel of it, and partakes of till its incidents and 
 properties (i). 
 
 It will perhaps be convenient to consider in the first place, 
 what is such an annexation to the freehold as will bring a 
 chattel within the general rule : and then to proceed to 
 inquire, in what cases the rule is relaxed with respect to an 
 executor or administrator. — In order to constitute such an 
 annexation it is necessary that the article should be let into 
 or united to the land, or to substances previously connected 
 
 What is an 
 annexation of 
 a chattel to 
 the freehold : 
 
 {g) 4 Burn, E. L. 304, 8th edit. 
 
 (k) The word "fixture" is here 
 used to convey the idea simply of 
 annexation to the freehold : which 
 sense of the term is the most easy 
 of adaptation to the present Trea- 
 tise. For general purposes, the 
 definition given in the work of 
 Messrs. Amos and Ferui'd (3rd 
 edit, by Ferard & Roberts, p. 2) is 
 certainly the most convenient and 
 scientific, viz., "fixtures are those 
 personal chattels which have been 
 annexed to land and which may Ije 
 afterwards severed and removed 
 by the party who has annexed 
 
 them against the will of the owner 
 of the freehold." The general 
 question of the origin and extent 
 of the doctrine of " Fixtures " was 
 fully discussed in the case of 
 Bishop V. Elliott, 10 Exch. 496, 
 S. C. in Cam. Scacc. 11 Exch. 119. 
 (t) See the judgment of Lord 
 Hardwicke, C, in Dudley r.Warde, 
 Ambl. 113, and of Lord Ellen- 
 borough, in Elwes v. Maw, 3 East, 
 51. S. C. 2 Smith's Leading Cases. 
 This rule is always open to varia- 
 tion by agreement of parties : 
 Wood V. Hewett, 8 Q. B. 913.
 
 Cli. II. § III.] Of Fixtures. 641 
 
 therewith. It is not enough that it has heen laid upon the 
 land, and brought into contact with it : The rule requires 
 something more than mere juxta-position ; as, that the soil 
 shall have been displaced for the purpose of receiving the 
 article, or that the chattel should be cemented, or otherwise 
 fastened to some fabric previously attached to the ground {k). 
 As an illustration may be mentioned the case of Culling 
 V. Tujfnall (l) before Treby, C.J,, at Nisi Prius, where it was 
 holden that the tenant, who had erected a barn upon the 
 premises, and put it upon pattens and blocks of timber lying 
 upon the ground, but not fixed it in or to the ground, might 
 take it away at the end of his term (m). On the other hand, 
 where the tenant had erected a verandah, the lower part of 
 which was attached to posts which were fixed in the ground, 
 Abbot, J., held that the tenant could not remove any part 
 of it (n). In the case of IL v. Lo)idont}(orpe (o), where a 
 tenant had built on part of the land a post windmill con- 
 structed upon cross traces, laid upon brick pillars, but not 
 attached or affixed thereto ; the Court held, that the wind- 
 mill was a mere chattel, and not to be considered as connected 
 with the land ( p). And generally, where the buildings are 
 
 (/c) Amos & Ferard on Fixtures, ments, which might be erected 
 
 3rd edit. p. 3. Wilde v. Waters, thereon during the terms and yield 
 
 16 C. B. 637. up the same in good and sufficient 
 
 (0 Bull. N. P. 34. repair. 
 
 (m) In Buller, it is said to have (o) 6 T. E. 377. 
 
 been holden, that he might do so (j)) So in R. v. Otley, Suffolk, 1 
 
 by the custom of the country ; but B. & A. 161, a pauper rented a 
 
 Lord Ellenborough, in adverting to windmill, and a brickbuilt cottage 
 
 the case (in Elwes v. Maw, 3 East, and garden, at the rent of 201. 
 
 55), observes, that the tenant might per annum for six years, and dur- 
 
 have done so without any custom ; ing that time held and occupied 
 
 for the terms of the statement ex- the same, and actually paid that 
 
 elude the things from being con- rent, and was rated to and paid 
 
 sidered as fixtures, the rates for the relief of the poor : 
 
 (n) Penry v. Brown, 2 Stark. N. The cottage and garden, with tlie 
 
 P. C. 403. In this case the tenant mill, were together of more than 
 
 had cc)venaiited to repair and keep the annual value of lOl., but exclu- 
 
 in repair the premises, and all the sive of the mill, lliey were not of 
 
 erections, buildings, and iini)rove- that annual value : The mill wa3 
 
 W.K, — ViUi. I. 'J' T
 
 annexation. 
 
 642 Of the Quantify of an Executors Estate. [Pt. ii. Bk. ir. 
 
 not let into the soil, but merely rest upon blocks or pattens, 
 they continue mere chattels {q). It is obvious that, in similar 
 cases, where it is a conclusion of fact that the connection 
 with the soil does not amount to an actual annexation, the 
 property continues in every respect a mere chattel, and will 
 pass as such to the executors and administrators. 
 
 Moreover, the object and purpose of the annexation must 
 be regarded : For if a chattel be fixed to a building, merely 
 for the more complete enjoyment and use of it as a chattel, 
 it still, it should seem, remains a chattel, notwithstanding it 
 is annexed to the freehold ; and is never a part of it, any 
 more than a carpet which is attached to the floor by nails for 
 the purpose of keeping it stretched out : And on this prin- 
 ciple, it was held, that cotton spinning machines, screwed 
 into, and fixed firmly to, the floor, were chattels and dis- 
 trainable for rent (r). 
 constructive But there may be a sort of constructive annexation of a 
 
 chattel not actually affixed to the freehold : as if a man has 
 a mill, and the miller takes a stone out of the mill, to the 
 
 of wood, and had a foundation of weight alone ; and that he might 
 
 brick ; but the wood-work was maintain trover for such a bam. 
 
 not inserted in the brick-founda- See also Wiltshear v. Cotlrell, 1 
 
 tion, but rested upon it by its own E. & B. 674. 
 
 weight alone : No part of the ma- {q) Xayler v. Collinge, 1 Taunt, 
 
 chinery of the mill touched the 21. 
 
 ground or any part of the founda- (?■) Hellawell v. Eastwood, 6 
 
 tion : It was held that the wind- Excli. 295. Elliott v. Bishoj), 10 
 
 mill, not being affixed to the free- E.\ch. 508, 520. For cases in 
 
 hold, nor to anything connected which chattels annexed to the 
 
 with it, was not parcel of a tene- freehold passed with the freehold, 
 
 meat, and, consequently, that the see Longbottom v. Berry, L. E.., 
 
 pauper gained no settlement. 5 Q. B. 123. Turner v. Cameron, 
 
 Again in Wansbrough v. Maton, L. R., 5 Q. B. 306. Mather v. 
 
 4 A. & E. 884, it was held that a Eraser, 2 Kay & J. 549. Walmsley 
 
 tenant was entitled, at the expira- v. Milne, 7 C. B., N. S. 115. 
 
 tion of his term, to remove a barn Climie v. Wood, L. E., 4 Ex. 328. 
 
 which he had erected on a founda- Ex parte Astbury, L. R., 4 Ch. 
 
 tion of brick and stone, the lounda- 630. Sheffield & South Yorkshire 
 
 tion being let into the ground, but PermanentBenefitBuildingSociety 
 
 the barn resting upon it l)y its v. Harrison, 15 Q. B. D. 358.
 
 Ch. II. § III.] Of Fixtures. 6^3 
 
 intent to pick it, to grind the better ; although it is actually 
 severed from the mill, yet it remains parcel of the mill, and 
 will go to the heir : The same law of keys, and (in some sort) 
 of doors, windows, rings, &c., which, although they are 
 distinct things, shall go with the inheritance of the house (s). 
 So the sails of a windmill are parcel of the freehold, and shall 
 go to the heir, and not to the executor (t). 
 
 It has been laid down, that dung in a heap is a chattel, 
 and goes to the executors ; but if it lies scattered upon the 
 ground, so that it cannot well be gathered without gathering 
 part of the soil with it, then it is parcel of the freehold {u) . 
 
 The second branch of the inquiry respecting fixtures In what cases 
 remains to be investigated, viz., when chattels personal have entitled to 
 been affixed to the freehold, and have thus lost their chattel ^^^^r fixtures : 
 character, under what circumstances the executor or ad- 
 ministrator of the person who affixed them is entitled to 
 sever them, and reduce them again to a state of per- 
 sonalty, so as to form part of the estate of the personal 
 representative. 
 
 1. The subject will first be considered as between the i. Right of the 
 executor or administrator, and the heir of tenant in fee. tenantTn°fee 
 In this case, the old rule of law above mentioned, " quicquid *° fixtures as 
 
 _ against the 
 
 jdantatur solo, solo cedit," still obtains with some rigour in heir. 
 favour of the inheritance, and against the right to disannex 
 therefrom, and consider as a personal chattel, any thing 
 which has been affixed thereto ; whereas, in the case as 
 between the executors of tenant for life or in tail, and the 
 remainder-man or reversioner, the right to the fixtures is 
 considered more favourably for the executors ; and in the 
 case as between landlord and tenant (which, although foreign 
 to this Treatise, it will be necessary in some measure to 
 contemplate) still greater latitude and indulgence has been 
 allowed in favour of the tenant (.r). It must, therefore, 
 
 (s) Walmsley r. Milne, 7 C. B., (?() Yearworth v. Pierce, Aleyn, 
 
 N. S. 138, 2Je'' Crowder, J. .32. See Higgoii v. Mortimer, 5 
 
 (0 II. /'. (Jimse, 1 Sirl. 207, by C. & P. (516. 
 Cleiirli and Feniier, Jilstiee.s. (./) Elwes v. Maw, '.i East, 51, 
 
 T T 'J.
 
 644 
 
 OftJic. Qnanfitij of an Executors Estate. [Pt. ii. Bk. ii. 
 
 Old rule 
 l)etween the 
 executor and 
 lieir of tenant 
 in fee. 
 
 Relaxations 
 •with respect to 
 
 carefully be observed, that an instance of the right allowed 
 to a tenant as against his landlord, is no authority for 
 its allowance to an executor as against the heir, or the 
 remainder-man or reversioner : nor does it follow, because 
 the executor of tenant for life or in tail is entitled to 
 certain fixtures, that the executor of tenant in fee will also 
 be entitled. 
 
 The rule as anciently established, between the executor 
 and heir of tenant in fee seems to have had no exceptions ; 
 whatever was affixed to the freehold descended to the heir 
 as parcel of the inheritance. " The law is the same," says 
 Godolphin (^), "concerning all things fastened to the freehold, 
 or to the ground by mortar or stone, as tables, dormants, 
 leads, mangers, millstones, anvils, doors, keys, glass windows, 
 and the like ; for none of these be chattels, but parcels of 
 the freehold, and, therefore, belonging to the heir, not the 
 executor." So it is said in the Touchstone (2-), "the inci- 
 dents of a house, as glass windows annexed with nails or 
 otherwise to the windows, the wainscot fixed by nails, screws, 
 or irons put through the posts or walls, tables, dormants, 
 furnaces of lead and brass, and vats in a brew and dye-house 
 standing and fastened to the walls, or standing in or fastened 
 to the ground in the middle of the house (although fastened 
 to no wall), a copper or lead, fixed to the house, the doors 
 within and without that are hanging and serving to any part 
 of the house, shall not go to the executor or administrator 
 to be divided and sold from the house." So it is laid down 
 in Noy's Maxims (a), "all chattels shall go to the executors 
 as vats and furnaces fixed in a brew-house or dye-house by 
 the lessee ; but if they be fixed by tenant in fee, the heir 
 shall have them " (b). 
 
 But in modern times some relaxations of the rule have 
 
 in Lord Ellenborough's judgmeut. 
 See also Lord Kenyon's judgment 
 in Penton v. Robart, 2 East, 90, 91. 
 
 [y) Pt. 2, c. 14, 8. 1. 
 
 {z) P. 470. 
 
 (a) P. .51. 
 
 {h) See also Swinb. Pt. 6, s. 7, 
 ])1. 5. Wentw. Off. Ex. 149, 150, 
 151, 14th edit. llerlakenden's 
 case, 4 Co. 64, a.
 
 Cli. II. § III.] Of Fixtures. 645 
 
 obtained ; which may be considered, 1st, with respect to fix- executors 
 tures put up by the tenant in fee for the purposes of trade ; against the 
 and 2ndly, with respect to fixtures put up by him for orna- g*^""' *° ^^^"^^ 
 ment or domestic convenience. As to trade fixtures, the 
 first instance of departure from the old rigour was in the 
 case of a cyder-mill, before C. B. Comyns, at the assizes, at 
 "Worcester, where, upon an action of trover brought by the 
 executor against the heir, the cyder-mill, though deep in the 
 ground, and certainly affixed to the freehold, was held to be 
 personal estate, and the jury were directed to find for the 
 executor (c). This, in fact, is the only expressly decided 
 case in favour of the right of the executor of tenant in fee 
 to trade fixtures : although Lord Hardwicke, in Laivton v. 
 Laivton (d), alluding to fire-engines set up in a colliery, said, 
 " I think, even between ancestor and heir, it would be very 
 bard that such things should go in every instance to the 
 heir : " and Lord Ellenborough, in his judgment in Elwes v. 
 Maw (e), recognizes the principle of C. B. Comyns's decision. 
 Its authority, however, has been denied in the House of 
 Lords in Fislier v. Dixon (/) ; unless on the supposition 
 that the cyder-mill in question was not annexed to the free- 
 hold (which it has always been assumed to have been in all 
 the previous judicial discussions of the case). — The case of 
 Fislier v. Dixon has also negatived the doubt suggested by 
 the dictum of Lord Hardwicke above cited : For it was 
 there held by the House of Lords, that machinery affixed 
 to the freehold by the owner in fee of certain land (pur- 
 chased by himself) consisting of steam-engines, rails, and 
 other fixtures, erected and used by him in the course of 
 trade, for the purpose of working coal and iron mines in 
 the land, went to his heir as part of his real estate. And 
 
 (c) Ex relatione Wilbraham, in borougli in Elwes v. Maw, 3 East, 
 
 3 Atk. 14, Lawton v. Lawton. The 54. 
 decision was recognised by Lord (d) 3 Atk. 1.5. 
 
 Hardwicke in that case, and in (c) 3 East, 54. 
 
 Lord Dudley v. Lord Warde, (/) 12 CI. & F. 312, 325, 329, 
 
 Ambl. 114, and l)y Lord Ellen- 331.
 
 646 Of the Quantify of an Executor s Estate. [Pt. II. Bk. II. 
 
 several learned peers laid down that the principle on which 
 a departure has been made from the old rule in favour of 
 trade has no application to a case between the heir and the 
 executor (r/). 
 
 This decision is in accordance with that of Laivton v. 
 Salmon (//). 
 
 In 'Tra2)pcs v. Ilaiicr (i), the question was, whether the 
 machinery, which was the subject of the action, passed to 
 the mortgagee under a mortgage deed, or vested in the 
 assignees under a commission of bankruptc}- : Lord Lynd- 
 hurst, C.B., in delivering the judgment of the Court, 
 observed that it was clear, as between landlord and tenant, 
 it might be removed by the tenant, if put there by him : as 
 between heir and executor, it would pass to the executor. 
 His Lordship proceeded to observe, that, applying the 
 authorities of Laivton v. Latcton and Laicton v. Salmon, to 
 the present case, the Court thought that this machiner}-, 
 erected for the purposes of trade, in a neighbourhood where 
 machinery of such description was commonly removed, and 
 which was capable of removal without injury to the freehold, 
 was not to be considered as belonging to the inheritance, but 
 as part of the personal estate. 
 
 It seems to have been held, that the custom of the 
 country may extend the rights of the executor beyond the 
 rules above stated (A). 
 Kelaxation As to the right of the executor of tenant in fee to fix- 
 
 with respect to „ i • • i /. 
 
 executor's tures Set up lor ornament or domestic convenience, the first 
 
 again'sMhe infringement of the strict rule in favour of the heir, with 
 heir, to respect to fixtures of this sort, appears to be in Squire v. 
 
 fixtures put up , 
 
 for ornament Maijer, Trin. Term, 1701, where it was held by Lord 
 
 or coiivG"' ^ 
 
 nience : Keeper Wright, that a furnace, though fixed to the freehold 
 
 furnace: and purchased with the house, and also the hangings nailed 
 
 hangings : 
 
 {g) See post, p. 653. Mather v. Fitzherbert /•. Shaw. 
 
 Fraser, 2 K. & J. 536. Walmsley (■?') 2 Crompt. and Mees. 153. 
 
 V. Milne, 7 C. B., N. S. 115. Bain (/,) Yiner's Ahr. tit. Execntois 
 
 r. Brand, 1 App. Ca?. 762. (U.), 74. See also Davis v. Jont-s, 
 
 (/t) 1 H. Black. 259, in a note to 2 B, & A. 165.
 
 Cli. 11. § 111. J 0/ Fixfares. 
 
 047 
 
 to the walls, should go to the executor and not to the heir ; 
 and so determined, says the report, contrary to Herlakenden s 
 Case {I). 
 
 The next case on the subject was Cave v. Cave (m), decided pictures 
 by the same Judge, in Trin, Term. 1705. The Lord Keeper 
 was there of opinion, that " although pictures and glasses, pier-glasses 
 generally speaking, are part of the personal estate, yet, if 
 put up instead of wainscot, or where otherwise wainscot 
 would have been put, they shall go to the heir : The house 
 ought not to come to the heir maimed and disfigured : Her- 
 lakenden s Case : Wainscot put up with screws shall remain 
 with the freehold." 
 
 But in Beck v. Ilehow (n), determined in the subsequent 
 year, a bill was filed in Chancery, upon a covenant made by 
 a testator, to convey a house and all things affixed to the 
 freehold thereof : The bill alleged that the defendant, the 
 devisee in trust of the house, had taken away, among other 
 things, the pier-glasses, hangings, and chimney-glasses, and 
 it was urged for the plaintifi", that these hangings, pier- 
 glasses, and chimney-glasses, were as wainscot, being fixed 
 with nails and screws to the freehold : that there was no 
 wainscot under them ; and as they would have gone to the 
 heir and not the executor, a fortiori, they w^ould go to the 
 plaintiff who was as a purchaser of the house ; and Cave v. 
 Cave was cited : But Lord Keeper Cowper was of a difi'erent 
 opinion ; saying that hangings and looking-glasses were only 
 matters of ornament and furniture, and not to be taken as 
 part of the house or freehold (o) . 
 
 Perhaps a deduction may be made from these cases, 
 which may reconcile their apparent discrepancies, viz.., that, 
 generally, pictures and looking-glasses shall go to the executor 
 
 {l) 2 Ei[. Cas. Abr. 430. and nailed to the wall and a book- 
 
 (??i) 2 Vern. 508. case standing on, but not fastened 
 
 {n) 1 P. Wni8. 94. to, brackets and screwed to tlie 
 
 (o) In tlie case of liircli r. Daw- wall, passed Tinder a beiiuest of 
 
 son, 2 Ad. & Kll. .37, looking- " fixtures and fixed furniture." 
 
 glasses standing on chimney-pieces
 
 648 
 
 Of the (Jaaiititi/ of an Executors Estate. [Pt. ii. Bk. ii. 
 
 ornamental 
 chimney- 
 pieces : 
 
 tapestry 
 
 iron backs to 
 chimneys : 
 
 tables, ovens, 
 jacks, clock- 
 cases. 
 
 Contraiy dicta 
 of judges in 
 recent cases : 
 
 as personal estate, although strictly speaking, they may be 
 so fixed by nails and screws to the walls as to be attached to 
 the freehold : — but that if they are let into the ivainscot, so 
 as to take the place of panels of it, they shall go to the heir ; 
 because they could not be removed by the executor without 
 disfiguring the house. The true reason, why they have been 
 held to be removable, probably is that, on the principle 
 already stated {ante, p, 642), they were never part of the 
 freehold. 
 
 Lord Hardwicke in Lord Dudley v. Lord Warded)), 
 speaking of marble chimney-pieces, says, that as between 
 landlord and tenant, they are removable by the latter, if 
 erected by him, but this does not hold between the heir and 
 the executor. They are removable, it should seem, not 
 because they are marble, but because they are ornamental {q). 
 
 The cases of relaxation Avere followed by Liar vet/ v. 
 Harvey (r), in which it was held by C. J. Lee, at Nisi Prius, 
 in trover by an executor against the heir, that hangings, 
 tapestry, and iron backs to chimneys, belonged to the 
 executor, who recovered accordingly against the heir. 
 
 The inference drawn from these decisions, by a wTiter of 
 considerable accuracy (s), is this : The law seems now to be 
 held not so strict as formerly, and if these things can be 
 taken away without prejudice to the fabric of the house, 
 it seemeth that the executor shall have them : as tables, 
 although fastened to the floor ; furnaces, if not made part of 
 the wall ; grates, iron ovens, jacks, clock-cases, and such 
 like, although fixed to the freehold by nails or otherwise. 
 
 On the other hand, the common law Judges have, in 
 several modern instances, incidentally stated the old rule as 
 existing with scarcely any relaxation, between the executor 
 and the heir. Thus, in Win7i v. Ingilby (t), the question 
 was, whether the sheriff had a right to take in execution, 
 under a fieri faeias, some fixtures, in a house which was 
 
 (p) Ainbl. 113. 
 
 (q) Bishop ". Elliott, 11 .^r. & 
 W. 113. 
 
 (;■) 2 Stra. 1141. 
 
 (s) 4 Burn, E. L. 301, 8tli edit. 
 
 {t) 5 B. & A. 625.
 
 Cli. 11. § III.] Of Fixtures. 649 
 
 the plaintiff's freehold, consisting of set pots, ovens, and set pots, ovens, 
 ranges : The Court decided that the sheriff had no right : ^^^^^^ ' 
 For these were fixtures which would go to the heir, and not 
 the executor, and they were not liable to be taken as goods 
 and chattels under an execution (;/). So in Colegrave v. Dias 
 Santos {x), which was trover for articles of three classes ; the 
 first admitted to be clearly annexed to the inheritance : — 
 the second, consisting of stoves, cooling coppers, and blinds ; stoves, cooling 
 and the third, not fixtures at all ; Bayley, J., said, " The ijlfudr' 
 general rule relating to the right of fixtures, is that between 
 the heir and the executor ; and as between them, the second 
 class of articles would belong to the heir." In the same 
 case, Abbott, C.J., said, " The rule of law is most strict 
 between the heir and the executor : According to that rule, 
 the articles in the two first classes would be considered as 
 a parcel of the freehold." And in The King v. St. Dun- stoves, grates, 
 Stan (y), where in a settlement case, the question was whether 
 certain fixtures, consisting of a stove, cupboards, and grates, 
 (the stove and grates fixed with brickwork in the chimney 
 places, and the cupboards standing on the ground, and 
 supported by holdfasts, and all removable without doing 
 any injury to the freehold, except leaving a few marks of 
 nails) were parcel of a demised tenement ; the Court held 
 that they were, and Bayley, J., said, "Although these 
 fixtures, if they belonged to the tenant, might have been 
 removed by him during the term, yet, as they actually be- 
 longed to the landlord, they were parcel of the freehold, and 
 would have gone to his heir, and not to his executor." 
 
 From these cases, it should seem, that the law is by no 
 means clearly settled respecting the right of the executor 
 of tenant in fee to fixtures set up for ornament or domestic 
 convenience. 
 
 cupboards. 
 
 2. It is now proper to view the subject of Fixtures as 2. To what 
 
 fixtures an 
 executor is 
 
 between the executor and the devisee of a tenant in fee. 
 
 [ii) See Mather v. Frast'i', 2 Kay (./;) 2 B. & C 7(j. 
 
 & .J. 550, prr Wo.kI, V.-C. (//) 4 B. & C. (mi
 
 G50 
 
 entitled as 
 against a 
 devisee of 
 tenant in fee. 
 
 (>ftlie Qiiantitijofan Executoi-s Estate. [Pt. ii. Bk. il. 
 
 The general rule is, that a devisee shall take the land in the 
 same condition as it would have descended to the heir : and 
 consequently he will he entitled to all articles that are 
 affixed to the land, whether the annexation takes place 
 before, or subsequent to the date of the devise : and as to 
 those fixtures which the executor may claim against the 
 heir, he would be equally entitled against a devisee (s). 
 However, it will be recollected that in the analogous case 
 of Emblements, while the heir is excluded in favour of the 
 executor, the devisee has been held to be entitled to them 
 upon the presumed intention of the testator [a). 
 
 There seems no doubt but that if, from the nature or 
 condition of the property devised, it is apparent that the 
 intention was that the fixtures should go along with the 
 freehold to the devisee, they will pass to him, although they 
 are of such a sort that the executor might have been entitled 
 to them as against the heir. Thus, where the devise was of 
 the testator's copyhold estates, which consisted, inter alia, 
 of a brew-house and malt-house, let on lease, together with 
 the plant and utensils, it was held that the plant passed 
 with the brew-house, on the ground that the testator 
 intended to devise the plant as well as the shell of the 
 brew-house ; that without the plant, the walls would be of 
 no use : and that it was material that the whole was, at the 
 time of making the Will, in lease together Qj). 
 
 {z) Amos & Ferard on Fixtures, 
 3rd edit., 323. 
 
 {(i) See ante, p. 627. 
 
 {J>) Wood V. Gaynon, 1 Anibl. 
 39.5. In the case of a conveyance 
 of land by way of nioi'tgage, as 
 well as in that of a conveyance of 
 any other description, all thingr. 
 annexed so as to become fixtures 
 pass with the mortgaged jMvmises 
 as part of the mortgage security, 
 and that though the deed contains 
 no mention of fixtures. The Con- 
 veyancing and Law of Property 
 
 Act, 1881, sect. 6, enacts that a 
 conveyance of land made after the 
 commencement of the Act [1 Jan., 
 1882], "shall be deemed to include 
 and shall by virtue of the Act 
 (iperate to convey with the land 
 all . . . fixtures." This was the 
 law as established by decided 
 cases. These cases, which since 
 the above Act have become less 
 material (except as to mortgages 
 executed before 1 Jan., 1882), are 
 set out in the 8th edition of this 
 "Work, p. 74(3, note (i).
 
 Cli. II. § III.] Of Future,. G51 
 
 3. The subject now proceeds to the right to fixtures of 3. Rights to 
 
 fixtures of the 
 
 the executor of tenant for life or m tail, as against the executor of 
 reversioner or remainder-man : and the division employed in or'^T taigas' ° 
 considering the right of the executor of tenant in fee will against re- 
 
 ° ^ mamder-man : 
 
 here be resorted to : viz. 1. The claim to fixtures set up by 
 the particular tenant for purposes of trade. 2. The claim 
 to fixtures set up by him for ornament or domestic con- 
 venience. 
 
 Since the law is more indulgent in this respect to the 
 executor of the particular tenant, than to the executor of 
 the tenant in fee, it is clear that the authorities already 
 mentioned which are in favour of the executor's right as 
 against the heir are equally so in favour of it as against 
 the remainder-man or reversioner. In addition to these, as to trade 
 
 T ,. • 1 • 1 ii fixtures : 
 
 there are cases, with respect to trade nxtures, m which tne 
 rights of the personal representatives of the tenant for life 
 or in tail have been expressly considered. In Laicton v. 
 Lawton (c), it was held that a fire-engine, set up for the 
 benefit of a colliery, by the tenant for life, should be con- 
 sidered part of his personal estate, and go to his executor 
 for the increase of assets in favour of creditors : And Lord 
 Hardwicke, in giving his judgment, said, " It appears in 
 evidence that, in its own nature, the fire-engine is a personal 
 moveable chattel, taken either in part, or in gross, before 
 it is put up ; but then it has been insisted, that fixing it, 
 in order to make it work, is properly an annexation to the 
 freehold. 
 
 "To be sure, in the old cases, they go a great way upon 
 the annexation to the freehold ; and so long ago as Henry 
 the Seventh's time, the Courts of law construed even a 
 copper and furnaces to be part of the freehold. Since that 
 time the general ground the Courts have gone upon, of 
 relaxing the strict construction of law, is, that it is for the 
 benefit of the iwhlie to encourage tenants for life to do what 
 is advantageous to the estate during their term." 
 
 {<■) .3 Atk. i;}.
 
 652 Of the Qiiantitij of an Executor'' s Estate. [Pt. ii. Bk. ii. 
 
 In another part of his judgment, his Lordship observed, 
 "It is true the old rules of law have indeed been relaxed, 
 chiefly between landlord and tenant, and not so frequently 
 between an ancestor and heir at law, or tenant fur life 
 and remainder-man. But, even in these cases it does admit 
 the consideration of paliUc convettlency for determining the 
 question. 
 
 " One reason that weighs with me is, its being a mixed 
 case, between enjoying the profits of the land and carrying 
 on a species of trade ; and, considering it in this light, it 
 comes very near the instances in brew-houses, &c., of 
 furnaces and coppers." 
 
 The judgment concludes with these observations, " It is 
 very well known that little profit can be made of coal- 
 mines without this engine ; and tenants for lives would be 
 discouraged in erecting them, if they must go from their 
 representatives to a remote remainder-man, when the tenant 
 for life might possibly die the next day after the engine is 
 set up. These reasons of public benefit and convenience 
 weigh greatly with me, and are a principal ingredient in my 
 present opinion." 
 
 The decision was followed by the case of Lord Dudlcij v. 
 Lord ]]^ardc (d), which came before Lord Hardwicke a few 
 years after Lairton v. Latcton, and was very similar in its 
 circumstances. A bill was brought by the executor of 
 tenant for life (or tenant in tail, for it did not appear which 
 the testator was) against the remainder-man of the estate, to 
 have a fire-engine, which had been erected by the testator 
 for a colliery, delivered up as part of the personal estate : 
 and it was adjudged in favour of the executor : And his 
 Lordship, in reference to the point decided in Law ton v. 
 Latcton, says, "If it is so in the case of a tenant for life, 
 query, how would it be in cases of tenant in tail ? Tenant 
 in tail has but a particular estate, though somewhat higher 
 than tenant for life. In the reason of the thing there is no 
 
 ((/) 1 Ambl. 113.
 
 Ch. II. § III.] Of Fixtures. 6r,3 
 
 material difference : The determinations have hoen from a 
 consideration of the benefit of trade. A colliery is not only 
 the enjoyment of the estate, but in part carrying on a 
 trade. The reason of emblements going to the executor of 
 a particular tenant holds here, to encourage agriculture. 
 Suppose a man of indifferent health, he would not erect 
 such an engine, at a vast expense, unless it would go to his 
 family." 
 
 There appears to be no other express case in the books 
 upon this part of the subject : but these decisions of Lord 
 Hardwicke have been frequently recognized in the common 
 law courts, viz., by Lord Mansfield, in Lawton v. Salmon (e), 
 by Lord Kenyon, in Penton v. Iiobart{f), and by Lord 
 Ellenborough, in Eltces v. Maw {g). 
 
 It will be observed, that none of the arguments employed 
 by Lord Hardwicke respecting the benefit of the public, and 
 the encouragement of trade, appear to have any application 
 to the question as between heir and executor, where the 
 owner of the fee, being the absolute owner of the land as 
 well as the personal property which has been affixed to the 
 freehold for the purposes of his trade, may dispose of the 
 one as well as the other as he shall think fit for the benefit 
 of his family, and where, consequently, it is not at all 
 necessary, in order to encourage the erection of such works, 
 to make any departure, in his favour, from the old rule of 
 law {](). 
 
 With respect to the right of the executor of tenant for Rioht of 
 life, as against the remainder-man or reversioner, to fixtures f^'^'^"!'"T°^,.j. 
 
 ' ° ' tenant tor hie, 
 
 set up for ornament, or domestic convenience ; it is some- ^'^■■> *° 
 
 . . . oi'namental 
 
 what smgular, that not a single case is to be found in the fixtures, &c. 
 books relating expressly to this subject. Nevertheless, upon 
 
 (e) I H. Black. 260, in notis. 330, 331, and of Lord Brougluun, 
 
 (/) 2 East, 91. ibid. 332. See also the able and 
 
 {{/) 3 East, 54. elaborate judgment of Wood, V.-(,' , 
 
 (/(,) See tlie observations of Lord in Mather v. Eraser, 2 Kay & J. 
 
 Cottenhani in Fisher v. Dixon, 12 536 ; and Walmsley v. Milne, 7 
 
 CI. & F. 328, of Lord Campbell, ih. C. B., N. S. 115.
 
 654 
 
 Of the Qtiroifhi/ of an Executors Esfcfe. [Pt. ii. Bk. IT. 
 
 the grouiid tliat the law is more favourable in this respect 
 to the executor of tenant for life than to the executor of 
 tenant in fee, it is clear, a fortiori, that all the cases which 
 support the right of the latter to hangings, pier-glasses, 
 tapestry, pictures, iron backs to chimneys, furnaces, grates, 
 &.C., are express authorities in favour of the right of the 
 former ; and further, that the strong expressions of Judges 
 in favour of the heir, which, in the recent cases heretofore 
 mentioned, somewhat weaken the effect of the determinations 
 in favour of the claims of the executor of tenant in fee, do not 
 affect them with relation to those of the executor of tenant 
 for life or in tail. 
 
 4. Cases of 
 fixtures 
 between 
 landlord and 
 tenant. 
 
 4. With respect to the decisions between landlord and 
 tenant, it has been so repeatedly laid down by the highest 
 authorities that the right to fixtures is considered more 
 favourably to the tenant, as against his landlord, than to 
 the executors of tenant for life, or in tail (i), as against the 
 remainder-man or reversioner, that it would be wrong to 
 conclude that a fixture set up for ornament or domestic 
 convenience, by a tenant for life, &c., may be claimed as 
 personalty by his executor, from the fact that it has been 
 decided to be a removable fixture, as between landlord and 
 tenant. However, it is asserted in a work, in which this 
 subject has been very fully and ably treated (k), that it 
 cannot, upon authority, be affirmed of any specific article, 
 that it is removable as between landlord and tenant, but 
 that it is not removable as between the tenant for life and 
 the remainder-man. And Lord Hardwicke seems to treat 
 the tAvo classes much in the same light, considering their 
 claims to be founded on similar reasons : And although he 
 says, that the case of a tenant for life is not quite so strong 
 as that of a com-mon tenant, yet many of his arguments are 
 drawn from a close analogy between them (/). 
 
 (i) Penton v. Robart, 2 East, 91. 
 Elwes V. Maw, 2 East, 51. Grymes 
 r. Boweren, G Biugh. 439, 440. 
 
 (/.) Amos & Feraiil on Fixtures, 
 3rd edit., 17o. 
 (l) Ibid.
 
 Ch. II. § IK.] Of Fixtures. G55 
 
 But tins is perfectly clear with regard to the decisions, as 
 to fixtures, between landlord and tenant, that wherever it 
 has been decided that fixtures are not removable by a 
 common tenant, a fortiori, they are not removable by the 
 executor of tenant for life or in tail, or the executor of tenant 
 in fee. It will, therefore, be useful to point out some cases 
 Avhere the decisions have been against the right of removal 
 by a common tenant. 
 
 It was decided in a celebrated case, after much delibera Executors are 
 tion, that the privilege established in favour of tenants in entitled to 
 trade, does not extend to agric-ultural tenants, so as to entitle fi'^*"''^^ ^^^ 
 
 ' " ' up for 
 
 them to remove things which they have erected for the pur- agriculture : 
 poses of husbandry. In that case it was held that a tenant 
 could not remove a beast-house, carpenter's shop, fuel-house, 
 cart-house, pump-house, nor fold-yard wall, erected for the 
 use of his farm, even, tltniif/h lie left the premises exactly in 
 the same state as he found them on his entri/ {)n). Hence it 
 followed that the executors of tenants for life or in tail, or 
 in fee, were not entitled to remove, as trade fixtures, things 
 erected for the purposes of agriculture. 
 
 But by the stat. 14 & 15 Vict. c. 25, s. 3, it is enacted stat. u & 15 
 that if any tenant shall with the consent in writing of the J'g'" ^' ^^' 
 landlord, erect any farm building or put up any other build- 
 ing, engine or machinery, either for agricultural purposes or 
 for the purposes of trade and agriculture, they shall be the 
 property of the tenant and removable by him after giving the 
 landlord a month's notice in writing, unless the landlord 
 elects to purchase them, in which case the value shall be 
 ascertained by arbitration, as prescribed by the Act. 
 
 And this provision has been further extended to cases to 
 which the Agricultural Holdings Acts, 1875 and 1883, re- 
 spectively apply. The language of these Acts [38 & 39 Vict. Stats. 38 k nn 
 c. 92, s. 53, and 46 & 47 Vict. c. 61, s. 34] is almost identi- TsVami"' 
 cal, and by them it is provided, that " where after the com- '*^ * ^^ ^^''''^• 
 
 c. ol, s. 34. 
 
 " mencement of this Act a tenant affixes to his holding any 
 (v//) Ehvcs /I. :\riiw, 3 East, 28.
 
 G5G 
 
 Of the QiKiidifij of an Executors Estate. [Pt. ii. Bk. II. 
 
 Executors not 
 entitled tu 
 lemove a 
 fonservatoi-y, 
 kc. 
 
 " engine, macbineiy, fencing, or other fixture, or erects any 
 " building {n), for which he is not under this Act or other- 
 " wise entitled to compensation, and which is not so affixed 
 " or erected in pursuance of some obligation in that behalf, 
 " or instead of some fixture or building belonging to the 
 " landlord, then such fixture or building shall be the property 
 " of and be removable by the tenant before or icithin a reason- 
 ** able time after tlie termination of the tenancy.'" Then follow 
 certain provisoes as to (1) payment of all rent due before 
 removal: (2) the avoidance of or making good damage: (3) the 
 giving of one month's previous notice in writing to the land- 
 lord : and (4) the option in the landlord to purchase such 
 fixtures. 
 
 In the Act of 1875 (sect. 53), there was also a proviso that 
 " nothing in such section shall apply to a steam engine 
 " erected by the tenant if before erecting it the tenant has not 
 " given to the landlord notice in writing of his intention to 
 " do so, or if the landlord by notice in writing given to the 
 " tenant has objected to the erection thereof," 
 
 This proviso does not appear in the Act of 1883. 
 
 In Buckland v. Butterfield {o), a question arose whether a 
 tenant for years had a right to remove a conservatory and 
 pinery : The conservatory, which had been purchased by the 
 tenant and brought from a distance, was by him erected on a 
 brick foundation, fifteen inches deep ; upon that was bedded 
 a sill, over which was frame-work, covered with slate ; the 
 frame-work was eight or nine feet high at the end, and about 
 two in front : This conservatory was attached to the dwelling- 
 house by eight cantilevers let nine inches into the wall, which 
 cantilevers supported the rafters of the conservatory : Resting 
 on the cantilevers was a balcony with iron rails : The con- 
 
 (w) The words in italics are 
 those which appear in sect. 34 
 of the Agricultural Holdings Act, 
 1883, but which do not appear in 
 the corresponding section (53) of 
 the Act of 1875, which Act the 
 
 Act of 1883 repeals, reserving, 
 however, any right in respect of 
 fixtures affixed before 1 Jan., 1884. 
 (Sect. 62, d.) 
 (o) 2 Brod. & Bingh. 54.
 
 Oh. II. § III.] Of Fixtures. 667 
 
 servatory was coustincted with slidiug glasses, paved with 
 Portland stone, and connected with the parlour chimney by a 
 flue : Two windows were opened from the dwelling-house into 
 the conservatory, one out of the dining-room, another out of 
 the library: A folding door was also opened into the balcony; 
 so that when the conservatory was pulled down, that side of 
 the house to which it had been attached became exposed to 
 the weather : Surveyors who were called, stated that the 
 house was worth 50L a year less after the conservatory and 
 pinery had been removed : Dallas, C.J., in delivering the 
 judgment of the Court of Common Pleas, said, "Allowing 
 that matters of ornament may or may not be removable, and 
 that whether they are so or not, must depend on the particu- 
 lar case, we are of opinion that no case has extended the right 
 to remove nearly so far as it would be extended, if such right 
 were to be established in the present instance ; and we 
 agree with the learned judge who tried the cause (Mr. Baron 
 Graham), in thinking that the building in question must be 
 considered as annexed to the freehold, and the removal of it 
 consequently waste " {p). This case, therefore, is an autho- 
 rity that the executors of tenant for life, or in tail, or in 
 fee, are not entitled to remove a conservatory such as described 
 above {q). 
 
 In the case of Grymes v. Botceren (r), the question was Pumps. 
 
 {p) See also Accord. Jenkins v. Lord EllenLoi'ough, in Ehves v. 
 
 Gething, 2 Johns. & H. 520 ; in Maw, speaking of that dictum, 
 
 which case, Wood, V.-C, held said, that there certainly existed 
 
 that though greenhouses could not no decided case, and he believed, 
 
 be removed, nor the boiler put no recognized opinion or practice 
 
 into the masonry, the pipes con- on either side of Westminster Hall, 
 
 nected with screws were remov- to warrant such an extension ; 
 
 able. It is expressly said by And Dallas, C.J., in the above 
 
 Lord Kenyon, in Penton v. Robart, case of Buckland v. Butterfield, 
 
 2 East, 90, that where hothouses seems to approve Lord Ellen- 
 
 and greenhouses, and the like, borough's observation. 
 
 have been put up by nurserymen {q) See also West v. Blakeway, 
 
 and gardeners at their own ex- 2 M. & G. 729. 
 
 pense, such things might be taken (r) 6 Bingh. 437. 
 away at the end of tlie term : but 
 
 W.E. — VOL. I. U U
 
 658 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. n. 
 
 respecting a tenant's right to remove a pump which he had 
 erected on the demised premises at his own expense : It was 
 attached to a stout perpendicular plank : this plank rested on 
 the ground at one end, and at the other was fastened by an 
 iron bolt or pin to an adjacent wall, from which it was 
 distant about four inches : The pin, which had a head at one 
 end, and a screw at the other, passed entirely through the 
 wall : The tube of the pump passed through a brick flooring 
 into a well beneath : This well had originally been open, but 
 the tenant had arched it over when he erected the pump : 
 And in withdrawing the tube, four or five of the floor bricks 
 were displaced, but the iron pin which attached the perpendi- 
 cular plank to the wall was left in the wall when the plank 
 was removed : Under these circumstances the Court of 
 Common Pleas was of opinion, that the pump was removable 
 as a tenant's fixture. 
 The fixtures It may be observed that it has been decided, that a tenant 
 
 moved'befme must uso his privilege in removing fixtures, during the con- 
 the tenancy tinuance of kis term : for if he forbears to do so within this 
 
 expires : 
 
 period the law presumes that he voluntarily relinquishes his 
 claim in favour of his landlord (s). Hence it follows, that 
 if a tenant from year to year of a house dies, and his executor 
 or administrator gives a notice to quit, he should take care to 
 
 (s) Lyde v. Eussell, 1 B. & A. In cases witliin the Agricultural 
 
 394. The tenant's right has been Holdings Act, 1883, a tenant has a 
 
 defined to continue during his reasonable time after the termina- 
 
 original term, and such further tion of the tenancy to remove any 
 
 period of possession by him, as he engine, machiner}-, fencing, or 
 
 hokls the premises under a right other fixture aflixed by him or any 
 
 still to consider himself a tenant : building erected by him, if he is 
 
 Mackintosh v. Trotter, 3 M. & "W. not under the Act, or otherwise, 
 
 186. In the absence of special entitled to compensation therefor, 
 
 contract, tenants' fixtures cannot be or if he has not aflaxed or erected 
 
 removed after the termination of such fixture, or building, in pursu- 
 
 the lease, and this rule applies, ance of some obligation in that 
 
 whether the lease determines by behalf, or instead of some fixture 
 
 effluxion of time, or by re-entry on or building belonging to the land- 
 
 forfeiture. Pugh v. Arton, L. E., lord. 
 8 E<i. 626.
 
 Ch. IL § iii.J Separate Propciiij of Widow. 659 
 
 remove the fixtures, or dispose of the right of the deceased to 
 
 them, before such notice expires. In the case of a tenant for witLin a rea- 
 
 ,.„ . . , ,T , sonable time, 
 
 hie, or m tail, his executor must, it should seem, remove the in the case of 
 
 fixtures to which he is entitled within a reasonable time after *^"^'^*' "'' '*^- 
 the death of the testator. 
 
 In conclusion of the subject of the right of executors to General 
 fixtures generally, it may be observed, that, after all, the to "the right 
 question whether fixtures be removable or not in a great *° fixtureb. 
 measure depends on the individual circumstances of each par- 
 ticular case, with reference to the nature of the article, and 
 the mode in which it is fixed (t). 
 
 3. SejMrate Properti/, Parajjhcrnalia, and other Rights oj 
 the Widow. 
 
 3. Personal chattels inanimate in possession from which 
 the executor or administrator is excluded in favour of the 
 widow. 
 
 By reason of the provisions of the Married "Women's Pro- 
 perty Act, 1882, all gifts made to a married woman on or after 
 January 1, 1883, become her separate property as if she were 
 &feme sole. But inasmuch as questions may arise as to gifts 
 to the wife, and separate property accruing to her before that 
 date, it seems convenient to preserve in this edition the state- 
 ment of the Law on this subject in the shape in which it 
 appeared in the earlier editions. 
 
 Marriage was formerly an absolute gift to the husband, as 
 well of all the chattels of which the wife was actually and 
 beneficially possessed at the time he married her (n), as also 
 
 (t) By Tindal, C.J., in Grymes Avas no distinction in this respect 
 
 V. Boweren, 6 Bingli. 439. See between property to which the 
 
 also Avery v. Cheslyn, 3 A. & E. wife waf? entitled at Equity, and 
 
 75. Walmsley v. Milne, V C B., property to which she was entitled 
 
 N. S. 115. at Law : Osboin v. I\Iorgan, 9 
 
 (u) Co. Lit. 351, b. And there Hare, 432. 
 
 u u 2
 
 G60 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 of such as came to licr during marriage, whether she survived 
 him or not (,r). And consequently, though his wife outKved 
 
 {x) These rules of Ituv, liowever, 
 had been considerably modified by 
 the Married Women's Property 
 Act (33 & 34 Vict. c. 93), which 
 came into operation on the 9th 
 day of August, 1870. By that 
 Act (which, save in respect of 
 accrued rights and liabilities, is 
 repealed by the Married "Women's 
 Property Act, 1882), any married 
 woman became absolutely entitled, 
 independent of her hiisband, to — 
 a. Her earnings, made separately 
 from her husband, and invest- 
 ments thereof (s. 1). 
 h. Government annuities and de- 
 posits in savings banks in her 
 own name, whether before or 
 after marriage (s. 2). 
 
 c. Suras invested in certain secu- 
 rities, companies, or societies 
 (ss. 3, 4, 5), in respect of which 
 the married woman had ob- 
 tained the statutory order re- 
 quired by the Act. 
 
 d. Policies of insurance, and all 
 benefits thereof, eflected by her 
 on her own life or her husband's 
 for her separate use, if so ex- 
 pressed on the face of the policy 
 (s. 10). 
 
 e. Any property hers before mar- 
 riage, which her husband, by 
 writing under his hand, had 
 agreed with her should be her 
 separate property after marriage 
 (s. 11). And if married on or 
 after the 9th of August, 1870, 
 to— 
 
 f. Any personal property to which 
 a woman shall become entitled 
 during her marriage as next of 
 
 kin or one of the next of kin 
 of an intestate, or any sum 
 not exceeding £200 to which 
 she shall after her marriage 
 become entitled by deed or wUl 
 (sect. 7). Eents and profits 
 of real property descending on 
 any woman married after the 
 passing of the Act as heiress or 
 coheiress of an intestate (sect. 8). 
 In Johnson v. Johnson, 35 C. D. 
 345, it was decided that the 
 8th section of the Act does not 
 enable a woman to pass by an 
 unacknowledged deed the fee 
 simple of real estate descended 
 upon her. The words " shall 
 become entitled "' in these sec- 
 tions of this Act apply to a rever- 
 sion falling in after marriage. 
 Lane v. Oakes, 30 L. T. N. S. 
 726. Howard v. Bank of Eng- 
 land, L. E., 19 Ec[. 295. It is 
 otherwise under the words of 
 section 5 of the Act of 1882. 
 Eeid V. Eeid, 31 C. D. 402. 
 See post, p. 662 {h). All the Act 
 does is to create a statutory 
 separate use. It does not give a 
 legal separate property, nor give, 
 excepting under the 11th sec- 
 tion as between husband and 
 wife, a remedy to the wife ex- 
 cept through a Court of Equity 
 Her separate earnings, there- 
 fore, are under this Act equitable 
 assets, distributable amongst all 
 her creditors, and not legal assets 
 out of which her executor is 
 entitled to retain his own debt. 
 Be Poole's Estate, 6 C. D. 739. 
 This Act, it will be observed,
 
 Cli, II. § III.] Separate Projyerti/ of Widow. 
 
 661 
 
 property. 
 
 liim, they went to his executor, if he made a "Will, or to his 
 administrator if he died intestate. 
 
 But by conveying her property to trustees before marriage, Separate 
 the wife might, independently of the Married "Women's Pro- 
 perty Acts, preserve it, in cases clear of fraud, separate from 
 her husband, and those claiming from or through him, both 
 at law and in equity : for wherever the trust can be supported 
 in equity, the trustee will be entitled at law (/y). So that if 
 personal property was bequeathed to, or settled upon, a 
 married woman for her separate use, even without the pre- 
 caution of the intervention of trustees, the wife's separate 
 interest was protected in equity by the conversion of her 
 husband into a trustee for her (z) ; and consequently, upon 
 his death, the property did not form a part of the beneficial 
 estate of his executors or administrators («). 
 
 These rules will still govern all those cases which do not 
 
 Law since 
 M. W. P. Act, 
 1882. 
 
 contains no section like section 
 1 of tlie Act of 1882 affecting 
 the capacity of a married woman 
 to acquire, hold, and dispose by 
 Will or otherwise of all real or 
 personal property as if she were 
 ii feme sole. 
 
 (y) By Lord Mansfield, in Hase- 
 linton V. Gill, 3 T. R. 620. 
 
 (z) Parker v. Brooke, 9 Ves. 
 583. Rich v. Cockell, ibid. 375, 
 in Lord Eldon's judgment. Where 
 there is sufficient evidence to sliow 
 an intention on the part of the 
 wife tliat the husband shall em- 
 ploy the money for his own use, 
 or for the family expenditure, as 
 he might think proper, the assent 
 of the wife to such application of 
 the money puts an end to the trust 
 for her separate use : Gardner r. 
 Gardner, 1 Giff. 126. 
 
 (a) Tlius, according to tlie 
 equitable doctrine of separuk' use, 
 
 if the liusband survives and the 
 wife dies in actual possession 
 of her separate property without 
 having expressed her right of dis- 
 j)osing of it by deed or Will, the 
 (j^uality of separate property ceases 
 at her death, and the fund belongs 
 to the husband in his marital right, 
 so that he need not become her 
 administrator in order to entitle 
 himself to it : Molony v. Kennedy, 
 10 Sim. 254. See also Carne v. 
 Brice, V M. & W. 183. Messenger 
 V. Clarke, 5 Exch. 388. Bird v. 
 Peagrum, 13 C. B. 639. Bourne 
 V. Fosbrook, 18 C. B., N. S. 515. 
 The appointment by a married 
 woman of executors is not a dis- 
 position by her of her separate 
 estate so as to deprive her husband 
 of sejmrate estate imdisposed of by 
 her Will. Be Lambert's Estate 
 30 G. 1). 62G.
 
 662 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 fall within the Married Women's Property Act, 1882. The 
 Stat. 45 & iQ Married ^Yomen's Property Act, 1882 (45 & 46 Vict. c. 75), 
 s. 1.' ' ' by section 1, subs. (1), enacts that, "a married woman shall 
 " in accordance with the provisions of this Act be capable of 
 " acquiring, holding, and disposing by Will or otherwise of 
 " any real or personal property as her separate property in 
 " the same manner as if she were a feme sole without the 
 *' intervention of any trustee." 
 s. 2. By section 2 it is enacted, that " every woman who marries 
 
 " after the commencement of this Act" [January 1, 1883], 
 " shall be entitled to have and to hold, as her separate pro- 
 " perty, and to dispose of, in manner aforesaid, all real and 
 " personal property which shall belong to her at the time of 
 " marriage, or shall be acquired by or devolve upon her after 
 " marriage, including any wages, earnings, money and pro- 
 perty gained or acquired by her in any employment, trade, 
 " or occupation in which she is engaged, or which she carries 
 " on separately from her husband, or by the exercise of any 
 " literary, artistic, or scientific sldll." 
 S. 5. And by section 5 {h), it is enacted that " every woman 
 
 " married before the commencement of this Act shall be 
 " entitled to have and to hold, and to dispose of, in manner 
 " aforesaid, as her separate property, all real and personal 
 
 (6) It is to be oLserved that in remainder, to any proxDerty, such 
 
 Reid V. Eeid, 31 C. D. 402, property is not made her separate 
 
 follo'tt'ing Ee Tucker, 54 L. J., estate by sect. 5 (1) of the Act 
 
 Ch. 874, and Ee Adames Trusts, though it fall into possession after 
 
 54 L. J. Ch. 878, and overruling the commencement of the Act. 
 
 Ee Dixon, 54 L. J. Ch. 964, On the other hand, sect. 7 of the 
 
 Baynton r. Collins, 27 C. D. 604, Act of 1870, in which the words are 
 
 Thompson v. Curzon, 29 C. D. 177, "to icliich she shall become entitled " 
 
 it was decided that if a woman was held to include property to 
 
 married before the commencement wliich the married woman had a 
 
 of the Married Women's Propeity reversionary title before marriage 
 
 Act, 1882, has before the com- but which fell into possession after- 
 
 mencement of the Act acquired a wards. Lane v. Oakes, 30 L. T., 
 
 itle whether vested or contin- N. S. 726. Howard v. Bank of 
 
 gent, and whether in reversion or England, L. R. 19 Eq. 295, 300.
 
 Ch. II. § III.] Separate Property of Widow. 663 
 
 property, her title to which, whether vested or contingent, 
 and whether in possession, reversion, or remainder, shall 
 accrue after the commencement of this Act, including any 
 wages, earnings, money, and property so gained or acquired 
 hy her as aforesaid." 
 
 And further, by section 19, it is enacted, " that nothing in S. 19. 
 this Act contained shall interfere with, or affect, any settle- 
 ment, or agreement for a settlement, made or to be made, 
 whether before or after marriage, respecting the property 
 of any married woman, or shall interfere with, or render 
 inoperative, any restriction against anticipation at present 
 attached, or to be hereafter attached, to the enjoyment of 
 any property or income by a woman under any settlement, 
 agreement for a settlement, will, or other instrument : but 
 no restriction against anticipation contained in any settle- 
 ment, or agreement for a settlement, of a woman's own pro- 
 perty to be made or entered into by herself, shall have any 
 validity against debts contracted by her before marriage, 
 and no settlement, or agreement for a settlement, shall have 
 any greater force or validity against creditors of such 
 woman than a like settlement, or agreement for a settle- 
 ment, made, or entered into, by a man would have against 
 his creditors " (c). 
 The scope of section 1 seems to be to declare the status Application of 
 of a married woman, and not to deal with the kinds of pro- 
 perty affected by the Act, which latter are dealt with by 
 sections 2 and 5. 
 
 For it can hardly be that the statute intended to make all 
 
 (c) It may be obseivcd that Stoiiur's Trusts, 24 C. D. 195. lie 
 
 section 19 excludes from the opera- Whitaker, 34 C. 1). 227. Han- 
 
 tion of section 5 and the other cock v. Hancock, 38 C. D. 78. 
 
 sections, property the subject of See also Be Queade's Trusts, 54 
 
 any settlement, which would have L. J. Ch. 788, which seems to have 
 
 bound it if the Act had not been disapproved of by the Court 
 
 passed, even tliough such i)roperty of Appeal in Hancock v. Hancock, 
 
 may accrue to the wife after the uhi sup. /^ A*-^ iOu^c&x. . 
 counuencemeiit of the Act. lln
 
 C64 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 TVhat words 
 ■will give a 
 separate 
 estate : 
 
 property possessed, or acquired by, a married woman in her 
 own right her separate property, irrespective of the date of 
 her marriage and the date of the acquisition of that property : 
 otherwise section 2, subs. 1, and section 5 would be un- 
 necessary. And there seems to be no property to which 
 section 1 can apply besides the subject-matter of sections 2 
 and 5. It cannot apply to property which is separate 
 property by marriage settlement, because this is excluded 
 from the operation of the Act by section 19, nor to cJioses 
 in action not reduced into possession, because the Married 
 Women's Property Act does not affect devolution, nor to 
 property which has become the separate property of the wife 
 by virtue of the Act of 1870, because the interest given to 
 the wife under that Act is merely a beneficial interest, and the 
 Act of 1882 does not amend the Act of 1870, but repeals it, 
 and provides that such repeal shall not affect any act done or 
 right acquired while the Act of 1870 was in force (cc). 
 
 The Married "Women's Property Act, 1882, unlike the 2oth 
 section of 20 & 21 Yict. c. 85, does not affect the devolution 
 of property undisposed of by the married woman (d). 
 
 The inquiry as to what words are sufficient according to 
 the equitable doctrine to give the wife an interest separate 
 from her husband appears to belong more properl}^ to the 
 general Law of Husband and Wife, than to a work on the 
 Law of Executors and Administrators ; and it is not, there- 
 fore, deemed requisite to pursue it at any length in this 
 Treatise : However, it is to bo observed that questions as to 
 the construction of settlements on married women or women 
 about to be married may still not unfrequeutly arise, notwith- 
 standing the Married Women's Property Act, 1882, because 
 section 19 of that Act excludes such settlements from the opera- 
 tion of it. ludependently of the Married Women's Property 
 Acts, a gift to the separate use of an unmarried woman excludes 
 
 (cc) This seems to be the view (r/) I^e LLimbertV Estate, 3D 
 
 also taken in Ee Cuno, 43 C. D. C. D. 626. 
 12.
 
 Ch, II. § III.] Separate Property of Widow. 
 
 ens 
 
 the executors of a future husband {e), and an antenuptial settle- Antenuptial 
 
 settlement of 
 
 ment of money or jewels, furniture, or other movables, made money, jewels, 
 by the husband himself of his own property upon the wife, JilJsband! *° 
 will be valid, as well against the husband himself and 
 volunteer claimants from him, as also against his creditors. 
 Nor will it differ the case that the husband was indebted at 
 the time of making the settlement, and that his future wife 
 knew it : nor that the husband had the joint-possession, as 
 long as he lived, of the furniture, &c. (/) ; nor that the wife 
 brought him no portion. 
 
 The same principle of equity which secures the interest Antenuptial 
 of the wife in the case of a settlement or bequest, will writing. 
 protect it when the husband agrees before marriage, by 
 Avriting, that his wife shall be entitled to specific parts of 
 her personal estate to her separate use, although the legal 
 title becomes vested in him by the subsequent marriage : 
 
 (e) Tullett V. Armstrong, 4 
 I\Iylne & Cr. 377. 
 
 (/) Campion v. Cotton, 17 Vcs. 
 264. But Avliere the husband, 
 with the knowledge of the wife, 
 had committed an act of bank- 
 ruptcy before the execution of the 
 settlement, and an adjudication of 
 bankruptcy followed within twelve 
 months, the settlement, though 
 antenuptial, was, while such act 
 of bankruptcy was available for 
 adjudication, held invalid ; — for, 
 by relation, the property had 
 ceased to he the property of the 
 bankrupt hefore the settlement 
 was executed : Fraser v. Thomp- 
 son, 4 De G. & J. 659. In the 
 case of Bulmer v. Hunter, L. E., 
 8 Eq. 46, a man executed an ante- 
 nuptial settlement and married a 
 woman with whom he liad pre- 
 viously cohabited with intent to 
 dofnuid his creditors, tlie wife 
 
 being imj)licated in the trans- 
 action, and it was held that the 
 settlement was fraudulent and 
 void as against creditors. And by 
 section 47 (2) of the Bankruptcy 
 Act, 188.3, it is provided that " any 
 " covenant or contract made in 
 " consideration of marriage for the 
 " future settlement on or for the 
 " settlor's wife or children of any 
 "money or property wherein he 
 " had not at the date of his 
 " marriage any estate or interest 
 " whether vested or contingent in 
 " possession or remainder, and not 
 " being money or projierty of or in 
 " right of his wife shall on his 
 "becoming bankrupt before the 
 " property or money has been 
 "actually transferred or paid 
 " pursuant to the contract or cove- 
 "nantbevoid against the trustee 
 " in the bankruptcy."
 
 666 
 
 Of the QiKintitii of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 Postnuptial 
 
 settlement. 
 
 lu such a case the husband will be a trustee for the wife's 
 separate use, and the trust will bind his executors and 
 administrators {g). 
 
 Likewise a ^os^nuptial settlement of property by the 
 husband on the wife is obligatory upon himself and all 
 persons claiming as volunteers from or through him {h). 
 And such a settlement will protect the property even against 
 creditors, unless it can be considered, from the circum- 
 stances under which it was made, fraudulent as against 
 them ( . 
 
 ((/) But the agreement must be 
 in writing, by reason of the 4th 
 section of the Statute of Frauds, 
 enacting tliat no action shall be 
 brought whereby to charge ?i\\\ 
 person upon any agreement made 
 in consideration of marriage, unless 
 some memorandum or note thereof 
 shall be in writing, and signed l^y 
 the party to Ije charged therewitli, 
 or by some other person by him 
 lawfully authorized : Eandall r. 
 Morgan, 12 Ves. 74. Warden v. 
 Jones, 23 Beav. 487. S. C, 2 De G. 
 & J. 76. Goldicutt i'. Townshend, 
 28 Beav. 445. These and other 
 authorities have overruled Dun- 
 das V. Duters, 1 Yes. 199. But if 
 a man, on his marriage -with a 
 woman enters into a mere parol 
 agreement with her, that a sum 
 of money shall be transferred to 
 trustees upon trust for himsell", 
 his intended wife, and the children 
 of the marriage, and the money is, 
 before the marriage, actually trans- 
 ferred to the trustees, who hold it 
 solely upon the trusts agreed upon, 
 the fact that the instrument de- 
 claring the trusts is executed by 
 them sul'sefjuently to the marriage, 
 does not make it a voluntary 
 
 instrument, and enable creditors to 
 set it aside : Cooper v. Wormald, 
 27 Beav. 270. Indeed, if the non- 
 reduction into writing be owing 
 to the fraudulent conduct of the 
 husband, equity will relieve : Lady 
 Montacute v. Maxwell, 1 P, Wms. 
 620. 
 
 {Ii) See Curtis v. Price, 12 Ves, 
 89. 
 
 (i) The questions of the avoid- 
 ance of settlements as against 
 creditors under stat. 13 Eliz. c. 5, 
 and the avoidance of voluntary 
 settlements of lands, &c., as against 
 purchasers under stat. 27 Eliz. c. 4, 
 are so wide, and the authorities 
 upon them so numerous, that it is 
 considered better to refer the reader 
 to the text-books which deal exclu- 
 sively with the subject, and not to 
 undertake a detailed examination 
 of the law on a point whicli is 
 but distantly connected with the 
 subject-matter of this work. See 
 May on Fraudulent and Voluntary 
 Dispositions of Property, 2nd ed. 
 
 As to the effect of the bank- 
 ruptcy of a person making a post- 
 nuptial settlement upon such 
 settlement, see section 47 (1) oi 
 the Bankruptcy Act, 1883, by
 
 Ch. II. § III.] Separate Property of Widoiv. 667 
 
 Besides the meaus already described of the acquirement Separate 
 "according to the Equitable doctrine " of separate property, acquired by 
 by a wife, she, even before the Married Women's Property ^a^jn ^*^^^*'^*° 
 Acts, might also do so by carrying on trade apart from her 
 husband, on her separate account, either in consequence of 
 an express agreement between her and her husband before 
 marriage, or by his permission after marriage {k). There 
 was an important distinction, with respect to the estate of the 
 executor of the husband, between the wife's right to property 
 acquired in the two cases. When the agreement was made 
 previously to marriage, since the consideration was valuable, 
 the transaction was not only to be obligatory upon the husband 
 and his executors, but also binding upon his creditors ; when 
 the agreement originated during the marriage, it was void 
 against his creditors, but good against himself (/). 
 
 The savings arising from the separate property of the wife Savings, &c., 
 will not form a part of the estate of her husband's executor : ^^^ ^^^^'^ 
 
 J- separate 
 
 for "the sprout is to savour of the root and go the same property: 
 
 which " any settlement of property " claiming under the settlement 
 
 " not being a settlement made " can prove that the settlor was at 
 
 " before and in consideration of " the time of making the settle- 
 
 " marriage, or made in favour of "ment able to pay all his debts 
 
 " a purchaser or incumbrancer in " without the aid of the property 
 
 " good faith and for valuable '' comprised in the settlement, and 
 
 " consideration, or a settlement " that the interest of the settlor in 
 
 "made on or for the wife or " such property has passed to the 
 
 " children of the settlor of property " trustee of such settlement on the 
 
 " which has accrued to the settlor " execution thereof." 
 
 "after marriage in riglit of his As to post-nuptial settlements, 
 
 " wife, shall, if the settlor becomes see also Reed's Bills of Sale Act, 
 
 " bankrupt within two years after 7th ed., p. 53. 
 
 "the date of the settlement be (Ic) See Haddon v. Fladgate, 1 
 
 "void against the trustee in tlie Sw. & Tr. 48, ante, p. 54, note (/). 
 
 "banki'uptcy, and shall if the An agreement with, or permis- 
 
 " setthtr becomes bankrupt at any sion from, her husband has not 
 
 "subseciuent time within ten years been necessary, since the Married 
 
 "after the date of the settlement Women's Property Acts, 1870 and 
 
 " be void against the trustee in the 1882. See ante, p. 660, n. (.b). 
 
 "bankruptcy, unless the parties (/) 2 Hop. 165, 2nd edition
 
 668 Of the Quantity of an Executors Estate. [Pt. ii. Bk, ir. 
 
 way"(m)- And so jewels, or other things, bought by the 
 ■wife, with money arising out of her separate property, will 
 not be assets liable to the husband's debts (»). But as she 
 is entitled to deal with her separate estate as she pleases, if 
 she directly authorizes any moneys which form a part of it, 
 or the savings arising from it, to be paid to her husband, 
 he is entitled to receive them, and she can never recall 
 them (o). 
 gifts from tiie The general rule of law, before the Married Women's Pro- 
 wife ; pei'ty Act, derived from the unity of person, was that gifts 
 from the husband to the wife were void: "But in Courts of 
 Equity," Lord Hardwicke says in Lucas v. Lucas (jj), " gifts 
 between husband and wife have often been suj)ported, though 
 the law does not allow the property to pass." 
 
 For though the property did not pass at Law, yet in 
 Equity a husband, being the owner at Law, might become 
 a trustee for his wife, and if by clear and irrevocable acts 
 he made himself such trustee the gift to his wife was con- 
 clusive (q). 
 
 Thus in Lucas v. Lucas (r). Lord Hardwicke decreed that 
 the defendant in the cause, a widow, Avas entitled to £1,000 
 South Sea Annuities transferred by her husband, in his life- 
 time, into the name of his wife, as a valid gift against the 
 husband and his representatives. 
 
 ()/i) Gore r. Kniglit, 2 Yern. 535. could not recover back these 
 
 So as to her savings out of her savings ; for that the remittances 
 
 alimony : ^Moore v. Barber, 34 must, as against the husband, be 
 
 L. J., Ch. 667. treated as her separate estate. 
 
 («) Duncan v. Cashin, L. E., (o) Caton r. Rideout, 1 Mac. & 
 
 10 C. P. 554. Accordingly in G. 599. But see also Darkin v. 
 
 Brooke v. Brooke, 25 Beav. 342, Darkin, 17 Beav. 578. 
 
 husband and wife had for many (jj) 1 Atk, 271. Graham v. 
 
 years lived, and -were still living Londonderry, 3 Atk. 393. 
 
 separate : He remitted money for (q) Mews v. Mews, 15 Beav. 533. 
 
 her maintenance and support : Grant v. Grant, 34 L. J, Ch. G41. 
 
 She saved a considerable por- See ^josf, p. 670, as to imperfect 
 
 tion : — And it was held by gifts by husband to wife. 
 
 Bomilly, M.R., that the husban 1 (r) 1 Atk. 271.
 
 Cli. II. § III.] Separate Pnrperty of Widmv. 
 
 669 
 
 So stock purchased by a man in the names of himself and stock, &c., 
 
 1 1 1 T 1 1 TT' /ii 11 purchased by 
 
 his wife, was, on his death, held by the Vice-Chancellor husband in tiie 
 
 (Sir John Leach) to go to her as the survivor (s). And in a "^;"^'„,f J,;;™' 
 
 simikr case, Lord Eldon, C, said it was 7)?-ima facie a gift or in her 
 
 name : 
 to herself in the event of her surviving, unless evidence of 
 
 contemporaneous acts, showing a contrary intention, were 
 
 produced (0. So where the husband lends out money upon 
 
 securities taken in the names of himself and wife, and dies, 
 
 the wife is entitled by survivorship, if there are sufficient 
 
 assets without this money to pay debts («). And, generally, 
 
 where a husband purchases personal property in the name of 
 
 his w'ife, or in their joint names, it will be presumed, in a 
 
 case clear of fraud, to have been intended as an advancement 
 
 and provision for the wife, and on surviving her husband she 
 
 will be entitled, unless he has aliened the property in his 
 
 lifetime (x). 
 
 But where the widow seeks to establish a gift from her what is suffi- 
 
 husband in his lifetime, she must adduce evidence beyond ^^ ^ gjft ],y 
 
 suspicion {y) ; and nothing less will do than a clear irrevo- ^^"*^'^ 
 
 (.s) Lorimer v. Loiimer, MSS. paid theni to her, and in every 
 
 Mr. Beumes, n. (46), to Rider v. way treated the stock as her 
 
 Kidder, 10 Ves. 367, 2nd edit. separate property: it was held by 
 
 (0 Wilde V. Wilde, MS. 1 Rop. Sir Cresswell Cresswell, that the 
 Husband and Wife, by Jacob, 54. wife had acquired a separate estate, 
 Vance v. Vance, 1 Beav. 605. of which the husband had con- 
 Williams V. Davies, 33 L. J., P. & sidered himself trustee for her, 
 M. 127. Ee Ekin's Trusts, 6 and to which the jus disponendi 
 C. D. 115. attached : In the goods of Smith, 
 
 (u) Christ's Hospital v. Budgin, 1 Svv. & Tr. 125. 
 2 Vern. 683. (y) Walter v. Hodge, 2 Swanst. 
 
 (ic) Kingdon v. Bridges, 2 Vern. 92. Ee Whittaker, 21 C. D. 657 
 
 67. Glaister v. Hewer, 8 Ves. The wife making such a claim 
 
 129. But the presumption may comes within the well established 
 
 be rebutted : Marslial v. Crutwell, rule, that a person, making a claim 
 
 L. R., 20 Eq. 328, So where a against the estate of a dead man 
 
 man from time to time gave his cannot sustain that claim by his 
 
 wife sums of money, part of which or her own deposition : there must 
 
 accumulated as stock in his name, be some corroboration of it. 
 and he received the dividends and 
 
 husband to
 
 610 
 
 Of the Quant it 1/ of an Executor s Estate. [Pt. n. Bk. n. 
 
 cable gift, either to some person as trustee, or by some clear 
 and distinct act of his, by which he divested himself of the 
 property, and engaged to hold it as trustee for the separate 
 use of his wife (z). 
 
 (.v) M'Lean v. Longlands, 5 Ves. 
 T.9, by Lord Alvaiiley. See also 
 2 Swanst. 104. Mews v. Mews, 15 
 Beav. 329. Hoyes v. Kindersley, 
 2 Sin. & G. 195. Lloyd r. Pnglie, 
 L. K, 8 Ch. 88. Parker v. Lech- 
 mere, 12 C. D. 256. Ill Lloyd r. 
 Pnghe, an account in the name of 
 the wife was held to be a mere 
 agency account of the husband, 
 and on his death the credit balance 
 was held to be part of his estate 
 though the wife survived him. In 
 Parker r. Lechmere, the opening 
 of an account with money coming 
 to the wife in her own right, in 
 the name of the wife, was held to 
 be evidence of the gift to the wife. 
 If the husband makes an imperfect 
 gift to the wife the Court will not 
 in the case of a husband and wife, 
 any more than in any other case, 
 hold that the intending donor is a 
 trustee for the Avife. Re Breton, 
 17 C. D. 416. Moore v. Moore, 
 L. E., 18 Eq. 474. See, however, 
 the cases to the contrary cited by 
 Hall, V.-C, in his judgment in 
 Ee Breton, which the learned 
 Judge seems to have decHned to 
 follow. Grant v. Grant, 34 L. J. 
 Ch. 641. Fox V. Hawks, 13 C. D. 
 822. Baddeley r. Baddeley, 9 
 C. D. 113, in which imperfect 
 gifts by a husband to a wife 
 .seem to have been treated as not 
 governed by the rule, applying to 
 imperfect gifts to a stranger, laid 
 do\\^l in Milroy r. Lord, 4 De G. 
 F. & J. 264. Richards v. Del- 
 
 bridge, L. R., 18 Eq. 11. Cases 
 of imperfect gifts of a husband to 
 a wife will be less likely to arise 
 now that the wife can take a 
 gift as if she were a feme sole 
 (M. W. P. Act, 1882), but of 
 course may arise where the form 
 of instrument is not applicable to 
 transfer the property in question. 
 The groimd for supporting, as a 
 declaration of trust, an instrument 
 prior to the M. W. P. Act, 1882, 
 purporting to transfer property to 
 the wife directly, seems to have 
 been that the husband, if he knew 
 the law, could not have intended 
 the instrument to operate as a 
 transfer, and if the gift is intended 
 to be taken by transfer, the Court 
 Avill not hold the intended transfer 
 to operate as a declaration of trust, 
 for then every imperfect instru- 
 ment "would be made effectual by 
 being converted into a perfect 
 trust. It must be remembered 
 that, to constitute a gift, there must 
 be either a transfer of property or 
 a declaration of trust, for there is 
 no equity to perfect an imperfect 
 gift. See Milroy v. Lord, 4 De G. 
 F. & J. 264, 274. Richards v. 
 Delbridge, L. R., 18 Eq. 11. 
 Moore v. Moore, ibid. 474, and 
 conf. Richardson r. Richardson, 
 L. R., 3 Eq. 686, and Morgan v. 
 Malleson, L. R., 10 Eq. 475, dis- 
 approved in Richards v. Delbridge 
 {vide supra), but approved by 
 Bacon, V.-C, in Fox r. Hawks, 
 13 C. D. 822. As to what is
 
 Cli.ii.§iii.]*Se/jarafe PvoimrUj of Widow — Pin-moneij. G71 
 
 In a case, however, where a husband gave directions to 
 his bankers to invest a sum of money in the funds, in the 
 joint names of himself and wife, and their brokers accord- 
 ingly made the purchase : Lord Langdale, M,R., held that 
 the wife was entitled to the stock by survivorship, although 
 the husband died after the contract, but before the transfer 
 had been completed {a). 
 
 Those gifts of money by the husband to the wife for Pin-money : 
 clothes, or to purchase ornaments, or for her separate expen- 
 diture, which are usually called pin-money {h), will be good 
 in equity as against the husband, and all volunteer claimants 
 through him (c). 
 
 Similar allowances have been supported in equity ; as and similar 
 where the husband voluntarily allowed the wife to dispose from husband 
 and make profit of all such butter, eggs, poultry, pigs, fruit, *° ^"'^^ '• 
 and other trivial matters arising from a farm (over and 
 besides what was used by the family) for her own separate 
 use, called it her pin-money ; out of which the wife saved 
 100/. ; which the husband borrowed, and died ; Lord Chan- 
 
 necessary to constitute a declara- " entitle her to relief in respect of 
 
 tion of trust, see Warriner v. " these sums of stock founded on 
 
 Eogers, L. R., 16 Eq. 340, 348, "the alleged gift, and the case 
 
 where Bacon, V.-C, says, "the "must he tried and determined 
 
 " one thing necessary to give " exactly in the same Avay as it 
 
 " validity to a declaration of trust " would have been tried and deter- 
 
 " I take to he, that the donor or " mined if a hill had been filed hy 
 
 " grantor should have absolutely " the next friend of the wife in 
 
 " parted with that interest which " the lifetime of the husband 
 
 " had been his up to the declara- " against the husband." 
 
 "tion, should have effectually (a) Vance v. Vance, 1 Beav. 
 
 " changed his right in that respect, G05. 
 
 " and put the property out of his (6) As to the nature of piu- 
 
 " power, at least in the way of money, see the elaborate observa- 
 
 " interest," and in Moore v. Moore, tions of Lord Brougham, C, in 
 
 L. K. 18 Eq. 474, 481, Hall, V.-C, Howard r. Digby, 2 CI. & Fin, 
 
 says, " Though the case is one of 634. 
 
 " husband and wife, the onus pro- (c) 2 Roper, Husband and Wife, 
 
 " /xwidi rests upon the plaintiff to 132, 2nd edit. 
 " make out a satisfactory case to
 
 672 
 
 Of the Quantitij of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 property 
 acquired by 
 wife after a 
 protection 
 order under 
 DiTorce Act 
 
 savings out of 
 pin-money and 
 other allow- 
 ances, when 
 liable to hus- 
 band's debts : 
 
 cellor Talbot decreed, that there heing no deficiency of assets 
 to iHiij debts, the widow should come in as a creditor for 
 the 100/. ; and the Court mentioned the case of Calmady v. 
 Catnuidtj, where there was a like agreement made betwixt 
 husband and wife, that upon every renewal of a lease by a 
 husband, two guineas should be paid by the tenant to the 
 wife, and this was allowed to be her separate money (d). 
 
 See also in Mangey \. Ilinujerford (e), the wife had saved 
 a considerable sum of money out of housekeeping, and in a 
 suit instituted against her for a discovery of what she had 
 saved, she insisted by answer that she was not bound to 
 make such a discovery ; and upon exceptions to the answer, 
 it was held sufficient by Lord King. 
 
 There has already (/) been occasion to show that, under 
 the Divorce Act, 1857, s. 25, property acquired by a wifj, 
 after obtaining a protection order, may be disposed of by her 
 in all respects as a. feme sole, and will devolve on her death as 
 if her husband were then dead. 
 
 It often happens that pin-money is settled on the wife by 
 agreement previous to marriage ; in which case it falls under 
 a different consideration : and upon the principles already 
 explained, the savings by the wife out of it will be protected 
 as her separate property, not only against the husband and 
 volunteer claimants through him, but also from his creditors. 
 But if the wife, by good management, effect savings out of 
 her pin-money or other allowance made by the husband, not 
 in pursuance of an antenuptial contract, such savings, as well 
 as jewels so purchased by the wife out of them, will not, 
 it should seem, be exempt from the husband's debts, but 
 will be assets for the purpose of satisfying them, in the 
 hands of his executor {g), although protected from voluntary 
 claims. 
 
 (d) Skinning v. Style, 3 P. Wms. (/ ) Ante, p. 55. 
 
 339. (7) Willson v. Pack, Prec. CLan, 
 
 (c) 2 '£.([. Cas. Abr. 156, in mar- 297. 
 gine.
 
 Ch. II. § III.] Pa raphe rnalin. 673 
 
 If pin-money be in arrear, and the husband dies, the wife Arrears of pin- 
 may claim the arrears against her husband's representatives : recoverable. 
 though such claim cannot, generally speaking, be carried 
 further back than one year's income {li) : Which restriction 
 appears to have been founded partly on a supposed satisfac- 
 tion by acquiescence, on the notion of the consent of the 
 wife, to make it a common fund for the expense of the 
 family (?') ; and partly on the consideration, that the money 
 is meant for the dress and ornament of the wife, in a mode 
 suitable to the degree of the husband, so as to maintain his 
 dignity, and not for the accumulation of the fund ; so that 
 if the wife does not choose to expend the money for the pur- 
 pose to which it was appropriated, viz., to support his and 
 her rank in society, she cannot justly claim the arrears of 
 it (A). Again, if pin-money be in arrear, and the wife dies, 
 her representatives cannot sustain any claim for it whatever ; 
 the ground of which rule is, that the pin-money was not 
 meant for the sustentation of the wife, but for her dress and 
 ornament in a station suitable to the degree of her husband : 
 The authorities connected with this subject, and the nature 
 of pin-money in general, were fully discussed, and commented 
 on in the arguments of counsel and the judgment of Lord 
 Brougham in a case relating to the arrears of the pin-money 
 of the Duchess of Norfolk (/). 
 
 Another instance where the wife may acquire a property Paraplier- 
 in her husband's personal chattels, by gift from him, so as to 
 exclude his executors or administrators, is to be found in 
 her paraphernalia. The term is borrowed from the civil law, 
 and is derived from the Greek, -napa (f)€pvr], i.e. some- 
 thing to which she is entitled over and above dower, what are so 
 Our law uses it to signify the apparel and ornaments of 
 
 {h) Peacock v. Monk, 2 Ves. (k) Howard v. Digby, 2 CI. & 
 
 Sen. 190. Thnipp v. Harniiin, 3 Fin G34, 657. 
 
 M. & K. 513. (/) Ibid. G34. See also Jodrell 
 
 (i) Brodie v. Barry, 2 V. it B. v. Jo(h-ell, 9 Eeav. 45. 
 3(5. 
 
 W.E. — VOL. I. XX
 
 674 Of the Quantity of an Execidors Estate. [Pt. ii. Bk. II. 
 
 the wife, suitable to her rank and degree (»«)• ^Miat are to 
 be so considered, are questions to be decided by the 
 Court, and will depend upon the rank and fortunes of the 
 parties {n) . 
 
 Pearls and jewels, whether usually worn bj' the wife, or 
 only on birthdays, and other public occasions, are to be con- 
 sidered paraphernalia (o). In the reign of Queen Elizabeth, 
 the executors of Viscount Bindon brought detinue against 
 the widow of the deceased viscount, and declared upon the 
 detainer of certain jewels : The defendant justified the 
 detainer of them as her paraphernalia : It was said by Man- 
 wood, Chief Baron, that paraphernalia ought to be allowed 
 to a widow, having regard to her degree, and in this case the 
 husband of the defendant being a viscount, 500 marks was 
 but a good allowance for such a matter (_p). 
 
 In the reign of Charles I. a chain of diamonds and pearls 
 worth 370/., being usually worn by a lady, who was a 
 daughter of an earl of Ireland, and a baron of England, and 
 the wife of a knight and a serjeant-at-law of the king, were 
 considered bona i)araphernalia (q). In the year 1674, Lord 
 Keeper Finch said, he never knew any paraphernalia allowed, 
 but where the party was noble either by birth or marriage (r) : 
 but in the year 1721, Lord Macclesfield, in the case of 
 Tipping v. Tipping (s), decreed, that the widow of a com- 
 moner should have jewels, &c., to the value of 200?. and 
 
 {m) 2 Black. Connu. 436. A necessary for their own persons." 
 
 bed is also in some authors enu- Pt. C, s. 7, pi. 5. 
 
 merated among the parapherna- (/;) 2 Rop. Husband and Wife, 
 
 lia : Com. Dig. Baron and Feme 141, 2nd edit. 
 
 (F. 3). Nov enumerates " all her (o) Graham v. Londonderry, 3 
 
 apparel, her bed, her copher, her Atk. 394, by Lord Hardwicke. 
 
 chains, borders, and jewels." Max. (|)) Viscountess Bindon's case, 
 
 c. 49. And Swinburne mentions 2 Leon. 166, pi. 201. 
 
 the ancient and general custom, as (q) Lord Hastings v. Sir A. 
 
 to widows, of the province of York, Douglas, Cro. Car. 343. 
 
 as extending "not only to their (r) Lady Tyrrell's case, 1 Freem. 
 
 apparel, and a convenient bed, but 304. 
 
 a coffer with divers things therein (>) 1 P. Wms. 729.
 
 Cli. II. § III.] Paraphcnudla. 675 
 
 upwards, us her huna parapJieniaUa. Lord Talbot after- 
 wards allowed the widow of a private gentleman her gold 
 watch, and several gold rings given at the burials of rela- 
 tions (O- And in a case where a Mrs. Northey, in the life- 
 time of her husband, was possessed of jewels to the value of 
 3,000/. and upwards, which had been bought partly with her 
 own money, and partly her husband's, and had been worn by 
 her whenever she was dressed ; Lord Hardwicke held, that 
 she was entitled to them as paraphernalia, and said, that the 
 value made no alteration in the Court of Chancery (a). 
 
 The following case, as decided Mich. 5 Geo. I., is reported 
 in Viner's Abridgement (x) : Mr. Calmady having a crocheat 
 of diamonds^ which was his first wife's, in 1695 makes his 
 Will, and, amongst other things, devises this crocheat to his 
 eldest son, and that it should go in succession to the heir of 
 his family as an heirloom : Afterwards, in 1699, he marries 
 a second wife (the defendant), and turns this crocheat into 
 a necklace, and adds several new diamonds to it to the value 
 of 200L, which was more than the value of the crocheat: 
 The plaintiff, as heir to Mr. Calmady (though not the eldest 
 son to whom it was specifically devised), demands this cro- 
 cheat of the defendant, the widow of Mr. Calmady : Counsel 
 for the defendant insisted that the defendant was entitled to 
 it as part of her paraphernalia, which the husband cannot 
 give away from his wife by Will, though he may dispose of 
 it in his lifetime, and the wife shall retain it against the 
 devisee or executor of her husband, unless in the case of 
 creditors, who cannot otherwise have a satisfaction of their 
 debts : Counsel for the plaintiff said, that though formerly 
 it was a doubt whether the husband could devise any part 
 of the paraphernalia of the wife, yet of late it has been 
 holden, that the husband may devise specifically jewels of 
 his own which ho permitted his wife to wear, though they 
 shall not go to his executor, or to a general residuary legatee, 
 
 (t) 2 E(|. Cas. Abr. 150, in mar- 79. 
 gi7ie. (.r.) Calmady v. Calmad}', 11 
 
 {u) Northey v. Northey, 2 Atk. Viii. Abr. 181, pi. 21. 
 
 X X 2
 
 G7G Oftlie Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 and that, in this case, there being no direct proof of an 
 express gift to the wife, only a permission to wear them, they 
 are well devised to the heir as an heirloom and that the 
 altering and turning the crocheat into a necklace, and per- 
 mitting his wife to wear them, was no revocation of the 
 devise : Parker, C, seemed to doubt at first, that turning the 
 crocheat into a necklace, adding new diamonds to it, and 
 permitting his wife to wear it, was a revocation of the devise, 
 but at last ordered the Master to examine and separate the 
 old diamonds from the new, and decreed the diamonds of 
 the crocheat to the plaintiff as heir-at-law, and specifically 
 devised to him as an heirloom. 
 
 On the authority of this case it was ruled by Lord Romilly 
 in Jervoise v. Jervoise {y), that family jewels, which have 
 been handed down from father to son, do not constitute 
 paraphernalia, notwithstanding they may have been worn by 
 the wife at court and on other full-dress occasions, but that 
 jewels presented to a wife during coverture by a third person, 
 or by her husband for the purpose of ordinary use as befitting 
 her station in life, are properly paraphernalia. 
 
 By the custom of London, a citizen's widow may retain 
 some part of her jewels as paraphernalia, but not all {z). 
 
 It will make no difference as to the widow's right, that 
 
 the jewels, &c., were in the custody of the husband, if the 
 
 wife occasionally wore them {a) . 
 
 tlie wife can- There is an important distinction between gifts of the 
 
 them'by°gift husbaud to the wife for her separate use, and gifts by him to 
 
 or will Juring -j^gj. g^g paraphernalia ; for she may dispose absolutely of the 
 
 life : things given to her for her separate use ; but where the 
 
 husband gives them to her expressly for the ornament of 
 
 her person, she cannot, according to our law, dispose of them 
 
 by gift or Will during his life {h) : although by the civil 
 
 law, the wife had such an absolute property in them that 
 
 (y) 17 Beav. 566. But as to (a) Northey v. Nortliey, 2 Atk. 
 
 those presented to her by a third *i9. 
 
 person, see 'post, p. 679, contra. {h) Graham v. Londonderry, .3 
 
 (s) 11 Vin. Abr. 180, pi. 17. Atk. .394.
 
 Cli. II. ^ III.] Paraiihernalia. 677 
 
 she might alien them in vita mariti, invito marito (c). But the husband 
 
 . , . -..p may sell them 
 
 the husband may sell them or give them away m his liic- or give them 
 time {d), although he cannot dispose of them by Will during ^^^^ ' 
 
 but he cannot 
 her life {e). devise them : 
 
 By the civil law, bona iiarai)hernalia in all cases go to the 
 wife, to the exclusion of the executor, nor are they subject 
 to the payment of the husband's debts (/). But by our law they are 
 they are clearly liable to his creditors, and, therefore, the fiebirof the ^ 
 widow will not be entitled to them (except as far as her li'isband : 
 necessary apparel) (f/) in case of a deficiency of assets {h). 
 Nor are they to be allowed to her, where there are not assets 
 at the time of her husband's death, though contingent assets 
 afterwards fall in ; for the same might not have happened 
 until twenty or thirty years after the death of the testator, 
 nor possibly until after the death of the widow, when the 
 end and design of the widow's wearing her hona iiaraiilicr- 
 nalia, in memory of her husband, could not have been 
 answered, and, therefore, it was reasonable that this should 
 be reduced to a certainty, viz., that if there should not be 
 assets real and personal at the testator's death, or, at least, 
 at the time when the jewels were applied to debts, then the 
 jewels should be liable (i). 
 
 (c) Cro. Car. 344, by Berkeley Vin. Abr. 180, 181. See also 
 and. Jones, Justices. 3 Bac. Abr. Calmady v. Calmady, ibid. 181 : 
 66. Executors (H. 4). ante, p. 675, and 3 Bac. Abr. 66. 
 
 (d) Graham v. Londonderry, 3 Executors (H. 4), where the hus- 
 Atk. 394. band's power to dispose of them 
 
 (e) Gary v. Appleton, 1 Ctis. by Will is asserted. 
 
 Chan. 240. Godolph. Pt. 2, c. 15, (/) Swinb. Pt. 6, s. V, ph 5. 
 
 s. 1. Tipping V. Tipping, 1 P. Godolph. Pt. 2, c. 15, s. 1. 
 
 Wms. 730. Northey v. Northey, 2 (g) Noy's Maxims, c. 40, 2 
 
 Atk. 78, 79. Seymour I). Tresilian, Black. Comm. 436. 
 
 3 Atk. 358. 2 Black. Comm. 436. (h) Campion v. Cotton, 17 Ves. 
 
 This was denied by Richardson, 264. " It is not fit," said Lord 
 
 C.J., and Cooke, J., in Lord Keeper Finch, " that the widow 
 
 Hastings v. Douglas, Cro. Car. 345, should shine in jewels and the 
 
 though agreed to by Berkeley and creditors starve : " Lady Tyrrell's 
 
 Jones, Justices ; and Ilarcourt, C, case, 1 Freem. 304. 
 
 reserved the consideraticni of tlie (i) Burton v. Pierpont, 2 P. 
 
 point in Wilcox v. Gore, 11 Wms. 79.
 
 678 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 but not to his 
 legacies : 
 
 the widow is 
 entitled to 
 marshal the 
 assets against 
 the heir : 
 
 and against a 
 devisee in 
 trust : 
 
 Queer e, 
 whether 
 against a 
 devisee : 
 
 But the widow's cluim to her paraphernalia is preferred 
 to that of a legatee of her husband, and, therefore, they will 
 not be liable to satisfy the testator's legacies, or any of 
 them (Jc), either general or specific (/). 
 
 Likewise, where a creditor has a double fund, the widow's 
 claim to paraphernalia shall not be disappointed by the 
 effect of his option of resorting to the personal estate (»0- 
 Therefore, if the personal estate, including the parapher- 
 nalia, had been exhausted in payment of specialty creditors, 
 the widow, in equity, stood in their place as to so much upon 
 the real assets of the heir-at-law (n). So where there is a 
 real trust estate, charged with the payment of the husband's 
 debts, the wife may resort to the trust to be reimbursed to 
 the value of her paraphernalia, if the personal estate has 
 been exhausted by her husband's creditors (o). So a real 
 estate, charged with payment of debts, in aid of the personal 
 estate, shall be applied before the widow's paraphernalia (p). 
 
 But whether the widow shall stand in the place of credi- 
 tors for the amount of her paraphernalia against real assets 
 devised, unless in trust for payment of debts, appears doubt- 
 ful (q). According to Lord Hardwicke's decisions in Eidunt 
 V. Phjmoutli (r), and Prohert v. Morgan (s), she is not so 
 entitled; but the case of Tynt v. Tynt (t) is at variance 
 
 (k) Snelson v. Corbet, 3 Atk. 
 370. 
 
 (I) In Graham v. Lord London- 
 derry, 3 Atk. 395, Lord Haid- 
 wicke said that the right of tlie 
 wife was superior to tliat of any 
 legatee. 
 
 {m) Aid rich v. Cooper, 8 Yes. 
 397. 
 
 (n) Snelson v. Corbet, 3 Atk. 
 369. See also Tipping v. Tipping, 
 
 1 P. Wms. 729. Tynt v. Tynt, 
 
 2 P. Wms. 544. 
 
 (o) Incledon r. Northcote, 3 Atk. 
 438. 
 
 il^) Boyntun t\ Boyntun, 1 Cox, 
 106. 
 
 (q) See Cox's note to Tynt v. 
 Tynt, 3 P. Wms. 544. It has 
 been suggested by an able writer 
 (Joshua Williams on Eeal Assets, 
 p. 118), that since the stat. 3 & 4 
 Will. 4, c. 104, she may marshal 
 the assets in this case also ; lie- 
 cause she is, as to her parapher- 
 nalia, in a position similar to that 
 of a simple contract creditor, who, 
 by force of tliat statute, may come 
 ujion any part of the property of 
 the deceased. 
 
 (?•) 2 Atk. 105. 
 
 (s) 1 Atk. 440. 
 
 (0 2 P. Wms. 542, before tlie 
 Master of the Rolls, 1729.
 
 Ch. 11. § III.] Paixiphernalia. 679 
 
 with those decisions. It seems, however, that if the devised 
 estate be subject to a mortgage, or other specific incum- 
 brance, she would have a right to marshal the assets by 
 throwing the charge upon the estate, as a legatee might in 
 such a case ('/). 
 
 It has already appeared that the husband may alien the if the husband 
 wife's paraphernalia in his lifetime ; but if the alienation be paraphernalia, 
 not absolute, but as a pledge or security for money, the wife nlug^t'redeem 
 surviving him will be entitled to have them redeemed by his *^®"^ ^°'' *^° 
 
 ° _ •' widow: 
 
 executors out of her husband's personal estate, if sufficient 
 for that purpose, after payment of his debts {x). 
 
 The widow may bar her right to paraphernalia by settle- the widow- 
 men t before marriage : as in Cholmely v. Cholmely (y), where paraphernalia 
 the wife by her marriage articles agreed to have no part ^y mamage 
 of her husband's personal estate, but what he should 
 give her by Will ; and this was held to bar her of her 
 paraphernalia (s). 
 
 If the husband should bequeath to his wife all household 
 goods, furniture, plate, jewels, linen, &c., for life or widow- 
 hood, with the remainder over, this will not bar her of her 
 paraphernalia (a). But in such a case if the widow does by election to 
 
 . 1 T p . • f. 1 1 • take them as 
 
 not, by some act m her liietime, manifest her election to legatee. 
 take them by her elder and better title, her executor 
 or administrator cannot lay any claim to them after her 
 decease (h). 
 
 Paraphernalia are in their nature materially distinct from Jewels, &c , 
 gift of jewels, &c., to the wife, by third persons, for her sepa- separate nJcoi 
 rate use : as the latter may be aliened by the wife in the *1^° y^^® ^^ 
 
 ■^ "^ third persons, 
 
 lifetime of the husband, and are not liable to his debts. With not liable to 
 
 , 1 Ti T • T 1 • husband's 
 
 respect to what shall be considered as given to her separate debts : 
 use ; where some diamonds had been presented to the wife 
 
 (u) Oneal v. Mead, 1 P. Wins. (</) 2 Veni. 8,3. 
 
 693. 2 Koper, Husband and Wife, (.-;;) Read v. Snell, 2 Atk. 642. 
 
 146, note (a) by Jacob. See post, (a) Marshall v. Blew, 2 Atk. 
 
 Pt. IV. Bk. I. Ch. II. §§ I. & II. 217. 
 
 (;r) Graham v. Londonderry, 3 (/*) Clarges v. Alljeniarle, 2 
 
 Atk. 395. Vern. 247.
 
 680 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 by the husband's father, on her marriage with his son, they 
 were considered by Lord Hardwicke as a gift to the separate 
 use of the wife, and to which she was entitled in her own 
 right (f). So where certain pieces of plate were given to the 
 wife immediately after marriage, by the husband's father, 
 Lord Hardwicke decided that they were to be considered as 
 gifts to the wife for her separate use (d). And a present by 
 a stranger to the wife during coverture must be construed 
 as a gift to her separate use : as where the Regent of France 
 delivered to the husband, as a present for his wife, his 
 picture set about with diamonds (e). 
 
 But with respect to jewels, &c., presented to the wife by 
 the husband himself before marriage, there was before the 
 Married Women's Property Act no exemption from the 
 
 for immediately on the marriage. 
 
 secus, of jewels 
 presented by 
 the husband 
 before 
 marriage in 
 
 cases to which liability to his creditors 
 Act does not 'tbe law gave them to the husband, and he could not be 
 apply. considered as a trustee for them for her separate use 
 
 afterwards (/). 
 
 As we have already seen any woman married since the 
 Married Women's Property Act is entitled to hold and dispose 
 of, in the same manner as if she were a feme sole, as her 
 separate property, all personal property whensoever and from 
 whomsoever she may acquire it, and her husband has no 
 interest in such property, nor is such property liable to his 
 creditors. 
 
 (c) Graham v. Londonderry, 3 
 Atk. 393. 
 
 (d) Brinkman v. Brinknian, 3 
 Atk. 394, cited in Graham v. 
 Londonderry. 
 
 (e) 3 Atk. 393. Lord Hard- 
 wicke in this case mentioned the 
 case of Countess Cowper, in which 
 several trmkets (which it is pre- 
 sumed, were not intended to be 
 
 worn, like parajihemalia, as orna- 
 ments to her person) had been 
 given to her by Lord Cowper him- 
 self in his lifetime, and they were 
 held by Sir Joseph JekyU to be 
 her separate estate. See also this 
 case again noticed by his Lordship, 
 in 1 Atk. 271. Ante, p. 668. 
 
 (/) Eidout V. Lord Plymouth, 
 2 Atk. 105.
 
 Cli. II. § IV.] Of Donations MortU Caum. 681 
 
 SECTION IV. 
 
 Of Donations Mortis Causa. 
 
 It will be proper to close the subject of the estate of an 
 executor or administrator in the chattels personal of the 
 deceased in possession, by considering another species of 
 interest in the property of the deceased, which vests neither 
 in the personal representative, nor in his heir, nor in his 
 widow. This is called a Donatio Mortis Cansd, and is thus 
 defined in the civil law, from which both the doctrine and 
 the denomination are borrowed : Mortis causa donatio est, 
 qiKS 2^ropter mortis fit suspicionem ; cum quis ita clonat, ut si 
 quid humanitus ei contigisset, haheret is, qui accepit ; sin 
 autem supervixisset is, qui donavit, reciperet ; vel si eum 
 donationis pcenituisset ; aut prior decesserit is, cui donatum 
 sit (g). 
 
 To constitute a donatio mortis causa, there must be three Attributes of a 
 attributes: 1. The gift must be with a view to the donor's ca'Ld: 
 death. 2. It must be conditioned to take effect only on 
 the death of the donor by his existing disorder. 3. There 
 must be a delivery of the subject of the donation. 
 
 1. The gift must be made with a view to the donor's i. The gift 
 death (h). If a gift be not made by the donor in peril of by'the donor ^ 
 
 ((/) Inst. lib. 2, tit. 7. The this, if he dies, shall operate as a 
 
 correctness of this definition, and legacy ; hut if he recovers, then 
 
 the inaccuracy of that given by does the pz'operty thereof revert 
 
 Swinbourne, Pt. 1, s. 7, pi. 2, is to him : " Hedges v. Hedges, Prec. 
 
 noticed by Lord Loughborough, Chanc. 269. 
 
 in Tate v. Hilbert, 2 Ves. 119. (h) Dnffield v. Elvves, 1 Bligh, 
 
 The description of a donatio mortis N. S. 530. The evidence must be 
 
 causa given by Lord Cowper, is, clear that the donor gave it in 
 
 *' where a man lies in extnsmity, contemplation of death. The 
 
 or being surprised with sickness, burden of proof is necessarily on 
 
 and not having an opportunity of the donee, and no case ought to 
 
 making his Will ; but lest he prevail unless it is supported by 
 
 should die before he could make evidence of the clearest and most 
 
 it, he gives with his own hands unequivocal character. Cosnahan 
 
 his goods to his friends about him ; v. Grico, 15 Moo. P. C. 215.
 
 682 
 
 Oftlie Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 in peril of 
 death. 
 
 2. The gift 
 must be con- 
 ditioned to 
 take effect 
 only on the 
 death of 
 donor. 
 
 death, i.e. with relation to his decease by ilhiess affecting 
 him at the time of the gift, it cannot be supported as a 
 donation mortis causa (?)• Where it appears that the 
 donation was made whilst the donor was ill, and only a few 
 days or weeks before his death, it will be presumed that the 
 gift was made in contemplation of death (A), and in the 
 donor's last illness (l). 
 
 2. The gift must be conditioned to take effect only on 
 the death of the donor by his existing disorder (m). But, 
 although it is an essential incident to a donation mortis 
 causa that it be subject to a condition, that, if the donor 
 live, the thing shall be restored to him, yet it is not neces- 
 sary that the donor should expressly declare that the gift is 
 to be accompanied by such a condition : for if a gift be 
 made during the donor's last illness, the law infers the 
 condition that the donee is to hold the donation only in case 
 the donor die of that indisposition (n). Thus in Gardiner v. 
 Parker {o), A., being confined to his bed, gave to B. a bond 
 for 1800L two days before his death, in the presence of a 
 servant, saying, " There, take that, and keep it : " The 
 question was between the donee and executors of A. : 
 And Sir John Leach, V.-C, decided in favour of the dona- 
 tion, observing that the doubt originated in the donor not 
 having expressed that the bond was to be returned if he 
 recovered : but that the bond being given in the extremity 
 of sickness, and in contemplation of death, the intention of 
 the donor was to be inferred that the bond shall be holden 
 
 ({) Tate V. Hilbert, 2 Ves. 121. 
 Gardiner v. Parker, 3 Madd. 185. 
 See also Edwards v. Jones, 1 
 Myhi. & Cra. 236. Post, p. 683. 
 
 {k) Gardiner v. Parker, 3 Madd. 
 184. 
 
 (Z) 1 Eop. Leg. 21, 3rd edition. 
 In Blount v. Biu-row, as reported 
 in 1 Ves. 546, Eyre, C.B., seems 
 to he of opinion, that there must 
 be positive evidence that the gift 
 
 was made in the last illness : but 
 this dictum is not found in the 
 report of the case in 4 Bro. C. C. 
 72, and does not seem supported 
 by any other authorities. 
 
 (m) Irons v. Smallpiece, 2 Barn. 
 & Aid. 553. Tate v. Leithead, 
 Kay, 658. Staniland v. Willott, 
 3 Mac. & G. 664, 675. 
 
 (n) 1 Hop. Leg. 4, 3rd edit. 
 
 (o) 3 I\Iadd. 184.
 
 Cli. II. § IV,] Of Donations Mortis Caiisd. 683 
 
 as a gift only in case of bis death ; and that if a gift be 
 made in the expectation of death, there is an implied con- 
 dition that it is to be held only in the happening of that 
 event. 
 
 Still, if from all the circumstances of the gift, there is 
 sufficient evidence to rebut the ordinary presumption, and 
 to make it appear that the gift was unconditional, it cannot 
 be supported as a donation mortis causa (^^). Accordingly 
 in Edwards v. Jo7ies (q), Mary Custance, the obligee of a 
 bond given in the year 1819, for 300L, signed the following 
 indorsement not under seal, on the bond, five days before 
 her death : " I, Mary Custance, of the town of Aberystwith, 
 in the county of Cardigan, widow, do hereby assign and 
 transfer the within bond or obligation, and all my right, 
 title, and interest thereto, unto and to the use of my niece, 
 Esther Edwards, of Llanilar, in the said county of Cardigan, 
 widow, with fall power and authority for the said Esther 
 Edwards to sue for and recover the amount thereof, and all 
 interest now due or hereafter to become due thereon ; as 
 witness my hand, this 25th day of May, 1830 ; " Immediately 
 after the indorsement had been signed, Mary Custance 
 delivered the bond, or caused it to be delivered, to Esther 
 Edwards, and it remained in her hands : Mary Custance 
 died on the 30th of May, 1830, having in the year 1829 
 made her Will, in which she did not mention the bond, or 
 dispose of the residue of her estate, but she appointed an 
 executor : It was argued on the part of Esther Edwards 
 that if this gift could not be established as a donatio inter 
 vivos, by reason of the act being incomplete, it might still 
 take effect as a donatio mortis causa : But Lord Chancellor 
 Cottenham held, that in order to be good as a donatio 
 mortis causa, the gift must have been made in contempla- 
 tion of death, and intended to take effect only after the 
 donor's decease ; and that if it appeared from the circum- 
 
 (2^) See Walter r. no(l,t,'e, 2 (7) 1 Mylne & Cra. 22G. 
 
 Swanst. 92.
 
 684 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. ii. 
 
 3. There must 
 be a delivery 
 of the subject 
 of donation : 
 
 what consti- 
 tutes a 
 delivery : 
 
 stances of the transaction, that the donor intended to make 
 an immediate and irrevocable gift, that would destroy the 
 title of the party who claimed as a donee mortis causa : 
 His Lordship further observed, that a party making a 
 donatio mortis causa does not part with the whole interest, 
 save only in a certain event, and it is of the essence of such 
 a gift, that it shall not otherwise take place : Such a donation 
 leaves the whole title in the donor, unless the event occurs 
 which is to divest him : Here, however, there was an actual 
 assignment, by which the donor, Mrs. Custance, transferred 
 all her right, title, and interest to her niece ; which was in 
 itself sufficient to exclude the possibility of treating this as 
 a donatio mortis causa. 
 
 3. There must be a delivery of the subject of the donation. 
 The general rule upon this head is, that to substantiate the 
 gift, there must be an actual tradition or delivery of the 
 thing to the donee himself (r), or to some one else for the 
 donee's use (s). The possession of it must be transferred in 
 point of fact. The purse, the ring, the jewel, or the watch, 
 must be given into the hands of the donee, either by the 
 donor himself or by his order. Thus, in Bunn v. Mark- 
 ham{t), Sir G. Clifford had written upon the parcels con- 
 taining the property in question the names of the parties for 
 whom they were intended, and had requested his natural 
 son to see the property delivered to the donees : It was, 
 therefore, manifestly his intention that it should pass to 
 them : yet as there was no actual delivery, the Court of 
 Common Pleas held that it was not a valid gift. 
 
 A further requisite to give effect to the donation is, that 
 the deceased should, at the time of the delivery, not only 
 part with the possession, but also with the dominion over 
 the subject of the gift(;/). Thus, in Rcddcll \. Dohrcc (x), 
 
 (r) Ward v. Tui-ner, 2 Ves. Sen. 
 431. Irons v. Smallpiece, 2 B, & 
 A. 553. Powell v. Hellicar, 26 
 Beav. 261. 
 
 (s) Dniry v. Smith, 1 P. Wms. 
 
 404. 
 
 (0 7 Taunt. 231. 
 
 (h) Hawkins v. Blewitt, 2 Ei?p. 
 N. P. C. 663. 
 
 (.r) 10 Sim. 244.
 
 Cli. II. § IV.] Of Donations Mortis Causd. 635 
 
 A., the deceased, being in a declining state of health, the deceased 
 delivered to Charlotte R. a locked cash-box, and told her to wilh the^ 
 go at his death to his son for the key ; and that the box 'io«;'^'o° »« 
 
 '^ •' ' well as the 
 
 contained money for herself, and entirely at her disposal possession: 
 after he was gone, but that he should want it every three 
 months whilst he lived : The box was twice delivered to the 
 deceased by his desire, and he delivered it again to Charlotte 
 R., and it was in her possession at his death : The box was 
 afterwards broken open by her, and contained a cheque for 
 5001., drawn by a third party in favour of the deceased, 
 and enclosed in a cover, indorsed with the name of Charlotte 
 R., and the key (which the son of the deceased had refused 
 to deliver to her) had a piece of bone attached to it, with 
 her name written on it : Sir L. Shadwell, V.-C, held that 
 there was no donatio mortis causa ; for that there was 
 nothing more than that to a certain extent the deceased put 
 Charlotte R. in possession of the box, but retained to him- 
 self the absolute power over the contents. 
 
 But it is no objection that the gift was not made to the imt a trust 
 donee free from incumbrance, but charged with the perform- ^^tfexed to 
 ance of a particular purpose iy) . Accordingly it was held in ^^^ S'^*" • 
 the case of Hills v. Hills {z), that a gift may be good as a 
 donatio mortis causa, although it be coupled with a trust that 
 the donee shall provide for the funeral of the donor. 
 
 Again, though a delivery to a third party for the donee's a delivery to 
 
 1 - , , . . some one else 
 
 use may be good {a), yet a mere delivery to an agent, m the as agent /or 
 character of agent for the qiver, is not sufficient ih). 'f^"."''' '^ 
 
 " ^ "^ ' ^ ' insumcient : 
 
 But there are cases where the nature of the thing will not what is a 
 admit of a corporeal delivery ; and then, it should seem, deiiverrwhen 
 that a delivery of the means of coming at the possession or ^^^ sui'ject is 
 
 *' . , or incapable of 
 
 making use of the thing given will be sufficient (c). Thus actual 
 the delivery of the key of a trunk has been decided to ' " 
 
 {y) Blount v. Burrow, 4 Bro. {h) Farquharson v. Cave, 2 Coll. 
 
 C. C. 75. See Hambrooke v. Sim- 35G. 
 
 mons, 4 Russ. Ch. C. 25. (c) Ward v. Turner, 2 Yes. Sen. 
 
 (z) 8 M. & W. 401. 441. 
 
 (a) See suipra, note (s).
 
 686 
 
 there may be 
 a donatio 
 t/iortis causa 
 of bank notes : 
 
 or of other 
 negotiable 
 instruments 
 which pass by 
 delivery : 
 
 Of the Quantitu of an Executors Estate. [Pt. Ii. Bk. II. 
 
 amount to the delivery of a trunk and its contents {d). So 
 the delivery of the key of a warehouse or other place, in 
 which goods of hulk were deposited, has been determined to 
 be a valid delivery of the goods for the purpose of a donatio 
 mortis causa (e). But in these cases it is to be observed, 
 that the key is not to be considered in the light of a symbol, 
 in the name of the thing itself ; but the delivery of it has 
 been allowed as the delivery of the possession, because it is 
 the iraij of coming at the possession or to make use of the 
 thing (,/■). 
 
 Bank notes may be the subject of donatio mortis causa, 
 because the property is transferred by the delivery (g). And 
 on the same principle it should seem that all negotiable 
 instruments which require nothing more than delivery to pass 
 to the donee the money secured by them, may be the subjects 
 of donations mortis causa. For since it has been so adjudged 
 of bank notes, there appears no reason why exchequer notes 
 or promissory notes, payable to the bearer, or bills of exchange, 
 or exchequer bills, indorsed in blank should not have the 
 capability : for in all those cases the property passes to the 
 donee by delivery {h). 
 
 (d) Jones v. Selby, Prec. Chan. 
 300. Ward v. Turner, 2 Yes. Sen. 
 441. He Mu.staplia, Times L. R., 
 viii., IGO. 
 
 (e) Ward v. Turner, 2 Ves. Sen. 
 443. Smith v. Smith, 2 Stra. 955. 
 
 (/) Ward V. Turner, 2 Ves. Sen. 
 443. Bunn v. Markham, 7 Taunt. 
 224. 
 
 (y) Miller v. Miller, 3 P. Wms. 
 356. 
 
 (/t) 1 Pop. Leg. 16, 3rd edition. 
 Unendorsed negotiable instru- 
 ments payable to order may lie 
 the subject of a donatio mortis 
 causa. Thus, a promissory note 
 paj'able to order may be the sub- 
 ject of a donatio mortis causa, and 
 will lasstherehx though uncndorsed- 
 
 hy the donor : Veal v. Veal, 27 
 Beav. 303. See also Eankin v. 
 Wegnelin, 29 L. J., Ch. 323, 
 note. This was expressly fol- 
 lowed in the case of Be Mead, 
 15 C. J). 651, in which a testator 
 shortly before his death gave to 
 his wife two bills of exchange 
 which were payable to himself or 
 order : they did not fall due until 
 after his death, and they had not 
 been endorsed by him. It Avas 
 hehl that there had been a valid 
 donatio mortis causa of the bills. 
 A cheque payable to the donor or 
 order, and without having been 
 endorsed by him, given by the 
 donor during his last illness to his 
 son, stands on the same footing as
 
 Ch. II. § IV.] Of Donations Mortis Caiisd. 
 
 G87 
 
 So a bond may be a subject of donatio viortis causa, 
 because the property is considered to pass by the delivery (i). 
 
 It has been a matter of considerable discussion, whether a or of a mm-t- 
 mortgage can be the subject of a donatio mortis causa by ^"'^^ ' 
 delivery of the mortgage deeds : but the question may now be 
 regarded as settled in the affirmative by the decision of the 
 House of Lords in Diiffield v. Hicks {k), reversing the de- 
 cision of Sir J. Leach, who had held that there was no good 
 donatio mortis causa by the delivery of mortgage deeds. But 
 on appeal to the House of Lords, their Lordships held that 
 the property in the deeds and the right to recover the money 
 secured by them, passed by the delivery, followed by the 
 death of the donor, and that the real and personal representa- 
 tives of the donor were trustees for the donee to make the gift 
 effectual. The decree of his Honour was accordingly re- 
 versed (l). 
 
 And in the case of ]]ltt v. Amis (in), the Court of Queen's or of a policy 
 
 of insurance : 
 
 a promissory note or bill of ex- 
 change payable to the donor or 
 order : Clement v. Cheesnian, 27 
 C. D. 631. As to whether in snch 
 a case the donee must sue in the 
 name of the donor's executor or 
 whether he can compel the exe- 
 cutor to endorse to him as if he 
 had given value, 45 & 46 Vict. c. 
 61, s. 31 (4), Qucere. See Chalmers 
 on Bills of Exchange, 3rd edit., 
 p. 119. But the ground on which 
 unendorsed negotiable instruments 
 may be the subject of a donatio 
 mortis causa is not that a property 
 is transferred at law by delivery, 
 but tliat the property is so trans- 
 ferred by the delivery of the in- 
 strument as to give a title to the 
 donee to the assistance of a Court 
 of Equity to make the donation 
 complete. It is in accordance 
 with the principles laid down in 
 the decision in the ITonsc of 
 
 Lords in Duffield v. Hicks, 1 
 Bligh, N. S. 498, that unendorsed 
 negotiable instruments have been 
 held to be the subject of a donatio 
 mortis causa. At one time, how- 
 ever, a contrary opinion seems to 
 have prevailed. See Miller v. 
 Miller, 3 P. Wros. 356, and Tate 
 V. Hilbert, 2 Ves. 111. 
 
 (i) Ashton v. Dawson, 2 Coll. 
 363, n. (c). Snellgrove v. Baily, 
 3 Atk. 214. Ward v. Turner, 2 
 Ves. Sen. 441, 442. Gardiner v. 
 Parker, 3 Madd. 184, ante, p. 682. 
 But such a donation cannot be 
 regarded as a satisfaction of a debt 
 due from the donor to the donee : 
 Clavering v. Yorke (reported in a 
 note to 2 Coll. 363). 
 
 {k) 1 Bh'gh (N. S.) 408. 
 
 (I) See also Staniland v. Willott, 
 3 Mac. & G. 676. 
 
 (//;) I Best & Sm. 109.
 
 688 
 
 Of the Quantity of an Executor sEdate. [Pt. ii. Bk. ii. 
 
 or of a 
 banker's 
 deposit note 
 
 but not of 
 receipt for 
 stock : 
 
 Notes drawn 
 by the 
 deceased in 
 his last 
 illness : not 
 the subject of 
 donatio mortis 
 causa, nor 
 (generally 
 speaking) 
 cheques on 
 bankers : 
 
 Bench held, that there was no distinction between a policy of 
 insurance and a mortgage or bond, as regards its capability 
 of being made the subject of a donatio mortis causa, and, 
 therefore, that a policy may be the subject of a gift of that 
 nature. This decision was adopted by Romilly, M.R. (»), who 
 held also to the same effect as to money due on a banker's 
 deposit note (o). 
 
 But where no property, legal or equitable, is transferred to 
 the donee by delivery of the subject, there can be no valid 
 donatio mortis causa. Thus in Ward v. Turner (|j), Lord 
 Hardwicke held that the delivery of receipts for South Sea 
 annuities was not such a delivery of the annuities themselves 
 as to support the gift of them as a donatio mortis cansd : but 
 lie intimated that an actual transfer of the stock would have 
 been sufficient to effectuate the intended donation {q). 
 
 A promissory note made by a man in his last illness, can- 
 not operate as a donatio mortis causa to the payee (r), for it 
 has not that reference to the death of the donor which is 
 essential to such a gift (s). The same has been decided as 
 to a cheque on a banker ; which is an order for the payment 
 of money, that may take effect immediately, and in the life- 
 time of the donor ; so that is (generally speaking) alto- 
 
 (/i) Amis V. Witt, 33 Beav. 619. 
 
 (o) See Accord. Moore v. Moore, 
 L. R. 18 Eq. 474. Jle Dillon, 44 
 C. D. 76. See further Moore v. 
 Darton, 4 De G. & Sm. 517, in 
 which case a receipt had been 
 given by a borrower to a lender as 
 follows : " Received of D. ^500, to 
 bear interest at 4 per cent, per 
 annum." And Knight-Bruce, 
 V.-C, held that the delivery of 
 this receipt to an agent of the 
 borrower by the lender on his 
 death bed stating that he wished 
 the debt to be cancelled was a 
 sufficient donatio mortis causa, on 
 the "round, semhle that the docu- 
 
 ment was essential to the proof of 
 the contract of loan. 
 
 {■p) 2 Ves. Sen. 431. 
 
 {q) Railway stock cannot be the 
 .subject of donatio mortis causa. 
 Moore v. Moore, L. R. 18 Eq. 474. 
 
 (r) Tate r. Hilbert, 2 Ves. 
 111. HoUiday r. Atkinson, 5 B. 
 & C. 501. In the latter of these 
 cases Lord Tenterden expressed 
 his opinion that the intention to 
 avoid the legacy duty would not 
 be a sufficient consideration for a 
 promissory note ; for then the note 
 would not be payable till after the 
 donor's death : ib. 503. 
 
 (s) See ante, pp. 681, 682.
 
 Cli. ir. § IV.] Of Donations Mortis Causd. 
 
 689 
 
 gether inconsistent with the nature of a donation mortis 
 causa (t). 
 
 (t) Tate c. Hilbert, 2 Ves. 120. 
 See also Tate r. Leithead, Kay, 
 658. Ante, p. 082. However, 
 a cheque under some circum- 
 stances has been considered the 
 subject of a donatio mortis causd : 
 as where the testator in his illness 
 drew a bill on a goldsmith for the 
 payment of a sum to A. the wife 
 of B., and delivered it to A. with 
 a written indorsement to buy her 
 mourning : Lawson v. Lawson, 1 
 P. Wms. 441. (But see the remarks 
 of Lord Loughborough in 2 
 Ves. 121.) So in Bouts v. 
 Ellis, 17 Beav. 121 (affirmed on 
 appeal, 4 De G. M. & G. 249), 
 a testator, four days before his 
 death, said to his wife, " I am a 
 dying man ; you will want money 
 before my affairs are wound \ij> : " 
 On the following day he gave his 
 wife a crossed cheque, and on the 
 next day but one, remembering 
 that it was crossed, he asked a 
 friend who visited him to take it 
 and give the wife another for it, 
 which the friend did : The testa- 
 tor's cheque was paid before, and 
 the other cheque after his death : 
 And it was held by Romilly, M.R., 
 and by the Lords Justices, that 
 the transaction constituted a good 
 donatio mortis causd. But the 
 delivery of the donor's cheque on 
 his banker, which was not pre- 
 sented before the donor's death, was 
 held not a good donatio mortis 
 causd : Hewitt v. Kaye, L. R. 6 
 Eq. 198. Where the delivery by 
 a donor, in his last illness, of a 
 cheque on his bankers was accom- 
 panied by a delivery of his banker's 
 pass-book, and the cheque ivas not 
 W.K. — VOL. I. 
 
 jnesented until after the donor's 
 death, it was held by Bacon, V.-C, 
 tliat the gift was not a good donatio 
 mortis causd: Re Beak's Estate, 
 L. R. 1.3 Eq. 734. Re Mead 
 15 C. D. 651. Where a cheque 
 was given by A. to B., and pre- 
 sented without delay, and the 
 bankers had sufficient assets of 
 A., but refused payment because 
 they doubted the signature, and 
 the next day A. died, the cheque 
 not having been paid, it was held 
 to be a complete gift inter vivos 
 of the amount of the cheque : 
 Bromley v. Brunton, L. R. 6 Eq. 
 275. See also Rolls v. Pearce, 
 5 C. D. 730, where a cheque 
 drawn by a testator payable to 
 his wife or her order, and indorsed 
 by her and paid into a foreign 
 bank against the amount of which 
 she drew, was held to be a good 
 donatio mortis causd, although it 
 was not presented for payment at 
 the bank on which it was drawn 
 until after the testator's death. 
 The result of the cases on the 
 question how far the gift of a 
 cheque of the donor can be the 
 subject of a donatio mortis causd 
 would seem to be that the mere 
 delivery of a cheque which is not 
 paid in the donor's lifetime does 
 not constitute a donatio mortis 
 causd, for it is payment which 
 constitutes the necessary delivery : 
 Hewitt V. Kaye, L. R. 6 Eq. 198. 
 Re Beak's Estate, L. R. 13 Eq. 
 734. Whereas in the case of a 
 1)ill, promissory note, bond, I U, 
 or cheque of a third person, it is 
 the delivery of the instrument 
 itself which operates as a delivery 
 Y Y
 
 690 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 How a donatio 
 mortis causa 
 differs from a 
 legacy. 
 
 1. Probate 
 unnecessary ; 
 
 2. Executor's 
 
 assent 
 
 unnecessary. 
 
 How it differs 
 from a gift 
 inter vivos : 
 1. It is 
 
 revocable : 
 
 It may now be exjjedient to examine iu what respects a 
 donatio mortis causa differs from a legacy, and from a gift 
 inter vivos ; whence it will appear how important the distinc- 
 tion is between these three kinds of donations. 
 
 A donatio mortis causa differs from a legacy in these 
 respects, 1. Probate of it is unnecessary, for such a gift 
 takes effect from delivery ; so the donee claims the subject of 
 it as a gift from the donor in his lifetime, and not under a 
 testamentary act («)• 2. For the reason just given, no assent 
 or other act on the part of the executor or administrator is 
 necessary to perfect the title of the donee (x). In fact the 
 distinction between a donatio mortis causa, and a legacy 
 under a nuncupative Will, is, that the former is claimed 
 against the executor, and the other, from the executor (y). 
 
 A donatio mortis causa differs from a gift inter vivos, in 
 these respects (y), in which it resembles a legacy: 1. It is 
 
 of the money seciued by it. It is 
 to be observed in the case of Boiits 
 V. Ellis (uhi sup.), that the cheque 
 was paid before the death of tlie 
 donor, and in Lawson v. Lawson 
 (ubi sujx), the gift by delivery of 
 the bill was in the nature of 
 an appointment. Generally, the 
 giving of a cheque will not operate 
 as an appropriation inter vivos in 
 favour of the donee (Hopkinson v. 
 Forster, L. E. 19 Eq. 74), although 
 in Bromley v. Brunton {ubi sup.), 
 it was held on the facts of that 
 case that there was a complete gift 
 inter vivos of the amount of the 
 cheque. There seem, however, to 
 be some cases iu which the delivery 
 of a cheque which is not paid in 
 the donor's lifetiaae is allowed to 
 operate as a donatio mortis causa. 
 One of them would seem to Ije 
 the case where the cheque is in 
 the lifetime of the donor negotiated 
 or paid away by the donee fur 
 valuable coiisideration : EoUs v. 
 
 Pearce, 5 C. D. 730, or where the 
 money is received immediately 
 after the death of the testator 
 before the banker was apprized of 
 it: Tate v. Hilbert, 2 Ves. 111. 
 But the gift would in these cases 
 seem to be validated rather as a 
 mere donation than as a donatio 
 mortis causa. 
 
 («) 1 Kop. Leg. 12, 3rd edition. 
 Rigden v. Vallier, 2 Ves. Sen. 258 
 
 (x) Tate V. Hilbert, 2 Ves. 120. 
 
 {y) There was formerly another 
 point in wlrich a donatio mortis 
 causa differed from a gift inter 
 vivos, viz., that it might be made 
 to the wife of the donor. This 
 difference no longer exists, as since 
 the M. W. P. Act, 1882, a married 
 woman can receive and hold as 
 her separate property any gift 
 made to her, whether by her 
 husband or any otlier person. As 
 to former law, see Lawsuu v. 
 Lawson, 3 P. Wms. 356. Tate v. 
 Leithead, Kay, 658.
 
 Cli. II. § IV.] Of Donations Mortis Causa. 691 
 
 ambulatory, incomplete and revocable during the testator's 
 
 life. The revocation may either be affected by the recovery 
 
 of the donor from his disorder {z), or by resumption of the 
 
 possession of the subject {a). But he cannot revoke the 
 
 donation by a subsequent Will : for, on the death of the 
 
 donor, the title of the donee becomes, by relation, complete 
 
 and absolute from the time of delivery {h). It may, however, 
 
 be satisfied by a legacy given to the donee (c). 2. It is 2. Liable to 
 
 liable to the duties imposed on legacies, by the express pro- l^ft^^Y'lJ^'Q ' 
 
 visions of the stat. 8 & 9 Vict. c. 76, s. 4, which enacts that Vict. c. 76, 
 
 every gift which shall have effect as a donation mortis causa 
 
 shall be deemed a legacy within the meaning of those 
 
 Acts {d). 3. It is liable to the debts of the testator upon 3 t 1 bt 
 
 deficiency of assets (e). 
 
 In Hayslep v. Gymer (/), an action of debt was brought Evidence of a 
 
 p IT ^ •ij.j.i p l^ T • ,-rr donatio morlis 
 
 for money had and received to the use of the plamtiff : causd. 
 It appeared that the defendant was executor of a Mrs. Wil- 
 kinson, and the plaintiff lived in Mrs. Wilkinson's house till 
 the time of her death : On the reading of Mrs. Wilkinson's 
 Will, the defendant asked the plaintiff whether she had not 
 possession of something given to her by Mrs. Wilkinson, and 
 how she had obtained it : She produced a parcel, which con- 
 tained bank notes of the value of 220L, and said that Mrs. 
 Wilkinson had given them to her a fortnight before her death, 
 telling her they would be useful to her, after her (Mrs. Wil- 
 kinson's) death ; and that no one was present at the time : 
 
 (2) Ante, p. 682. property to be included in the 
 
 (a) Ward v. Turner, 2 Ves. Sen. account on which probate duty is 
 
 4.33. Bunn v. Markham, 7 Taunt. payable is " any property taken as 
 
 232, by Gibbs, C.J. " a donatio mortis causd made by 
 
 {b) Jones v. Selby, Prec. Clianc. " any person dying on or after 
 
 ,300. " 1 June, 1881." 
 
 (c) Jones V. Selljy, Prec. Chanc, (e) Smith v. Casen, mentioned 
 300. See Johnson V. Smith, 1 Vee. in Drury v. Smith, 1 P. Wms. 
 Sen. 314. 40(;. Ward v. Turner, 2 Ves. Sen. 
 
 (d) And by 44 Vict. c. 12, 434. 
 
 § 38 (2), amongst the persomil (/) 1 Adol. *Jc Ell. 1(;2. 
 
 Y V 2
 
 692 Of the Quantity of an Executors Estate. [Pt. ii. Bk. ii. 
 
 Accordmg to one witness, the defendant then said that he 
 should keep the parcel till the plaintiff required it : according 
 to another, simply that he should keep it : The plaintiff had 
 Mrs. Wilkinson's keys during her illness, and superintended 
 the economy of the house : other property of Mrs. Wilkin- 
 son's to a considerable amount was shown to have been in 
 the power of the plaintiff, which was found by the executors 
 undisturbed : Mrs. Wilkinson did not take to her bed more 
 than a week before her death : During that week the plaintiff 
 showed the notes, in her ovrn possession, to a witness : The 
 action was brought to recover back these notes : The defen- 
 dant's counsel objected that there was not evidence to go to 
 the jury, of the property of the notes being in the plaintiff: 
 The Judge having left the whole evidence to the jury, they 
 found a verdict for the plaintiff: A motion was afterwards 
 made to enter a nonsuit, because there was no evidence at all 
 of property in the notes, except the plaintiff's own account 
 of the matter : But the Court of K. B. refused to disturb the 
 verdict, on the ground that there was some evidence to go 
 to the jury, though slight, and that the declaration made by 
 the plaintiff herself was admissible evidence in her favour 
 by reason of acquiescence (though of trifling weight) in its 
 truth by the defendant, and also as being part of the res 
 ycstce, on the occasion of the defendant's obtaining the 
 notes ((/). 
 
 Donatio mortis It may be added in conclusion that the Wills Act (1 Yict. 
 
 causd not 
 
 abolished by c. 26) has uot, either in words or in effect, abolished such 
 donations (li). 
 
 {(j) In this case Littledale and absohitely, or a donatio mortis 
 
 Parke, JJ., expressed tlieir opinion causd. 
 
 tliat it made no difterence whether (h) Moore r. Darton, 4 De G. & 
 
 the delivery of the notes was a gift Sm. 517. 
 
 WiUs Act.
 
 693 
 
 BOOK THE THIRD. 
 
 OF THE QUANTITY OF THE ESTATE IN ACTION OF AN 
 EXECUTOK OK ADMINISTRATOR. 
 
 -tilTHERTO the subject as to the quantity of the estate of 
 an executor or administrator has been confined to personal 
 property of the testator or intestate in possessioji ; that is, 
 where he had not only the right to enjoy, but had the actual 
 enjoyment of the thing. But property in chattels personal 
 may also be in action ; that is, where a man has not the 
 occupation, but merely a right to occupy the thing in ques- 
 tion ; the possession whereof may, however, be recovered by 
 a suit or action, from whence the thing so recoverable is called 
 a thing, or chose in action. 
 
 Thus, if a man promises or covenants with me to do any 
 act, and fails in it, Vvhereby I suffer damage, the recompense 
 for this damage is a chose in action ; for though the right to 
 recover a recompense vests in me at the time of the damage 
 done, yet there is no possession of it till recovered by course 
 of law (a). 
 
 By the term Chose in Action, as used in this Treatise, is to 
 be understood a right to be asserted, or property reducible 
 into possession, either by action at law, or suit in equity (b). 
 
 (a) 2 Black. Comm. 3!)7. mortgage before A. did : And it 
 
 (b) A. testator bequeathed a washeldby Sir L. Sliad\vell,V.-C., 
 leasehold estate to trustees, upon that the annuity was a chattel 
 trust as therein mentioned ; and interest in equity and not a cJiose 
 first, lie charged the estate with in action, nor subject to any of 
 the payment of an annuity to Jiis the rules established with regard 
 daughter during all his interest in to assignment of cJioscs in action ; 
 the estate : The daughter after- and consequently that B. had 
 wards mortgaged her annuity, Hist not gained any priority over A. : 
 to A. and ul'lL-rwards to B. ; Imt Wiltsliire v. Bablnts, 14 Sim. 70. 
 15. L'avc th^' trustees iioliri' ol liis
 
 694 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. iii. 
 
 The object of the present Book will be to investigate what 
 clwses in action the estate of an executor or administrator com- 
 prises : and the subject may perhaps be separated conve- 
 niently into these four divisions ; 1st, to what c/toses in action 
 an executor or administrator is entitled, which the deceased 
 himself might have put in suit. 2ndly, As to the right of an 
 executor or administrator to clwses in action, where the action 
 accrues after the death of the testator or intestate. 3rdly, As 
 to the title of an executor or administrator to the executory 
 and contingent interests of the deceased. 4thly, What suits, 
 commenced by the testator or intestate, may be continued by 
 the executor or administrator.
 
 695 
 
 CHAPTER THE FIRST. 
 
 TO WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINIS- 
 TRATOR IS ENTITLED, WHICH THE DECEASED MIGHT HAVE 
 PUT IN SUIT. 
 
 It may be advisable to treat of the subject of this Chapter 
 in two subdivisions ; 1st, The general question as to what 
 actions survive to the executor or administrator ; 2ndly, 
 Particular instances where the executor or administrator is 
 entitled to Glioses in Action, which the deceased might have 
 put in suit, and where not. 
 
 SECTION I. 
 
 The General Question as to ivhat Actions survive to the 
 Executor or Administrator. 
 
 With respect to such personal actions as are founded upon All personal 
 any obligation, contract, debt, covenant, or other dut}j, the founded on 
 general rule has been established from the earliest times • contract or 
 that the right of action on which the testator or intestate survive : 
 might have sued in his lifetime survives his death, and is 
 transmitted to his executor or administrator {a). Therefore, 
 it is clear that an executor or administrator shall have actions 
 to recover debts of every description due to the deceased, 
 either debts of record, as judgments, statutes, or recog- 
 nizances, or debts due on special contracts, as for rents ; or 
 
 (a) 1 Sauiicl. 216, a. n. (1) to ministrators, by stat. ;U Edw. III. 
 Wheatley v. Lane. The right of k. 1, c. 11. 
 executor to sue i.« extended to ad-
 
 696 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. iii. 
 
 how far the 
 executor re- 
 presents the 
 testator in Lis 
 contracts : 
 
 representa- 
 tion of 
 deceased by 
 executor or 
 administrator 
 complete. 
 
 on bonds (/^), covenants, and the like, under seal; or debts 
 on simple contracts, as notes unsealed, and promises not in 
 writing, either express or implied (c). It is true that no 
 action of account lay for an executor at common law, upon 
 the principle that the account rested in the privity and 
 knowledge of the testator only (d) ; but this action is since 
 given to executors by the statute of Westm. 2 (13 Edw. I. 
 stat. 1, c. 23), to executors of executors by 25 Edw. III. stat. 
 5, c. 5, and to administrators by 31 Edw. III. stat. 1, c. 11. 
 So if the goods, &c., of the testator taken away continue in 
 specie in the hands of the wrongdoer, it has been long 
 decided that replevin and detinue will lie for the executor to 
 recover back the specific goods, Szc. (e) ; or in case they are 
 sold, an action for money had and received to recover the 
 value (/). So the executor of an assignee of a bail-bond might 
 have brought an action upon it ; for it was an interest vested 
 which went to the executor (_r/). 
 
 The executor or administrator is the only representative 
 of a deceased that the law will regard in respect of his per- 
 sonalties, and no word introduced into a contract or obli- 
 gation can transfer to another his exclusive rights derived 
 from such representation. 
 
 The representation of the deceased, in matters of contract, 
 by his executor or administrator is so complete, that, gene- 
 rally speaking, it is not necessary, in order to transmit to 
 the executor or administrator a right of enforcing a con- 
 tract, that he should be named in the terms of it. Thus if 
 money be payable to B., without naming his executor, yet 
 
 (h) A Scotch heritaljle bond, (B.). Toller, 157. 
 
 although it contain a personal ob- 
 ligation to pay the debt, descends 
 to the heir-at-law : Jerningham v. 
 Herbert, 4 Russ. Chanc. Cas. 388. 
 Allen V. Anderson, 5 Hare, 163. 
 See also Oust v. Goring, 18 Beav. 
 383. 
 
 (c) Wentw. Off. Ex. 159. 14th 
 edit. Com. Di'j;. Adiniiiistrnlinn, 
 
 (d) Co. Litt. 89, b. 2 In>t. 
 404. 
 
 (e) Le Mason v. Dixon, Sir "W. 
 Jones, 173, 174. 1 Saund. 217, 
 note (1). 
 
 (/) 1 Saund. 217, note (1). 
 
 (f/) Nott V. Stephens, Fortesc. 
 367. Com. Dig. Admini-^trntion 
 (V,. 13).
 
 Ch. I. § l] Of Chases in Action. 697 
 
 his executor or administrator shall have an action for it {h). 
 So if money be payable to A., or his assigns, his executor 
 shall take it : for he is assignee in law (i). But if one 
 enters into an obligation, conditional to pay 20L to such 
 person as the testator shall by his last Will appoint, and the 
 testator makes no particular appointment ; his executors 
 cannot maintain an action for this 20^. : for though they are 
 his assignees in law, yet the assignee here must be an 
 assignee in deed (k). So if an annuity be given to B. without 
 saying to his executors and administrators, during the life of 
 the testator's wife, upon condition that he be civil to the wife, 
 and B. dies before the wife, his executor shall not have it ; 
 for it was jiersonal to B. (1), 
 
 But it was a principle of the common law, that if an Ancient com- 
 injury was done either to the person or property of another, actio per- 
 for which damaqcs only could be recovered in satisfaction, ^"""^'S''^^'-^*"'- 
 the action died with the person to whom, or hy whom the 
 wrong was done. Thus where the action was founded on 
 any malfeasance or misfeasance, was a tort, arose ex delicto, 
 such as trespass for taking goods, &c., trover, false imprison- 
 ment, assault and battery, slander, deceit, diverting a water- 
 course, obstructing lights, escape, and many other cases of 
 the like kind, where the declaration imputes a tort done 
 either to the person or the property of another, and the x>lca 
 under the old pleading must have been " not guilty," the rule 
 was actio iiersonaUs moritur cnni iJcrsond. But this rule s^t. 4 Eilw. 
 received considerable alteration by the statute 4 Edw. III. ' '^' ' 
 c. 7, de bonis asportatis in vita testatoris, which reciting, 
 
 (/(.) Com. Dig. Adiiion. (B. 1 3). implied to the contrary : Farrow 
 
 Where, however, personal con- v. Wilson, L. R. 4 C. P. 745, 746. 
 sidei'ations are of the foundation (t) Pease v. Mead, Hob. 9. 
 
 of tlie contract, as in cases of prin- Went. Off. Ex. 215, 14tl) edit, 
 cipal and agent, and master and (A.) Hob. 9, 10. 1 Roll. Abr. 
 
 servant, the death of either party 915, E.xecutors (X.) pi. 2. Po.^f, 
 
 puts an end to the relation ; and Ch. ii. 
 
 in respect of service after the death, (I) Neal v. Hanbury, Prec. Chan, 
 
 the contract is dissolved unless 173. See also Barford v. Stuckey, 
 
 there lie a ^ti])nl:l1illll express or 1 ]'>in^h. 225.
 
 698 
 
 Of the Quantity of an Executor s Estate. [Pt. ii.Bk. iii. 
 
 Ftat. 25 Edw. 
 III. s. 5, c. 5. 
 
 The executor 
 may uow have 
 an action for 
 all injuries to 
 the personal 
 estate, where- 
 by it has 
 become less 
 beneficial to 
 him, whatever 
 the form of 
 action may be. 
 
 that in times past executors have not had actions for a trespass 
 clone to their testators, as of the goods and chattels of the 
 said testators carried away in their life, and so as such tres- 
 passes have remained unpunished, enacts, that the executors 
 in such cases shall have an action against the trespassers, and 
 recover their damages in like manner as they, whose executors 
 they be, should have had if they were living. And this remedy 
 is further extended to executors of executors, by 25 Edw. III. 
 stat. 5, c. 5, and to administrators by an equitable con- 
 struction of the former statute (m). The Act 4 Edw. III. 
 being a remedial law, has always been expounded largely : 
 and though it makes use of the word trespasses only, has 
 been extended to other cases within the meaning and intent 
 of the statute {n). Therefore by an equitable construction 
 of the statute, an executor or administrator shall now have 
 the same actions for any injury done to the pt^J'sonal estate 
 of the deceased in his lifetime, ivherehy it has become less 
 beneficial to the executor or administrator, as the deceased 
 himself might have had, whatever the form of action may 
 be (o). So that he now may have trespass or trover (p) ; an 
 action against the sheriff for a false return in the lifetime of 
 the testator (q) ; debt on a judgment against an executor sug- 
 
 (m) This is stated by Mr. Ser- 
 jeant Williams in 1 Saund. 217, 
 to be by the stat. 32 Edw. III. 
 c. 11 : But that statute only gives 
 an action to the administrator to 
 recover as executor the debts due 
 to the intestate. See Mr. Eraser's 
 note to Pinchon's case, 9 Co. 
 89, a. 
 
 (n) Emerson f. Emerson, 1 Ventr. 
 187. Le Mason v. Dixon, Sir W. 
 Jones, 174. So Lord Ellenborough 
 in Wilson v. Knubley, 7 East, 134, 
 says, " It is a very ancient statute 
 passed at a period when no great 
 precision of language prevailed, 
 and the bodv of the act does not 
 
 speak of actions on trespass, though 
 the instance put is proper for such 
 an action, but it speaks of actions 
 for a trespass done to the testator's 
 goods ; and it enacts that execu- 
 tors in such cases shall have an 
 action against the trespassers; appa- 
 rently using the word tresjiass as 
 meaning a wrong done generally, 
 and the trespassers as wrongdoers." 
 
 (f/) 1 Saund. 217, n. (1). See 
 Lockier v. Paterson, 1 Carr. & K. 
 271. 
 
 (jj) Russell's case, 5 Co. 27, a. 
 Rutland v. Rutland, Cro. Eliz. 377. 
 
 (q) Williams v. Gary, 4 Mod. 
 403 : for this was not properly an
 
 Cli. I. § l] Of Chases in Action. 699 
 
 gesting a devastavit {r) ; an action for removing goods taken 
 in execution before the testator (the landlord) was paid a 
 year's rent (s) ; an action to recover the price paid by the 
 intestate for valueless shares on the faith of a fraudulent pro- 
 spectus (t) : an action to restrain the infringement of a 
 registered trade-mark with the usual claim for an account of 
 profits and damages (u) : an action for falsely and maliciously 
 publishing a statement calculated to injure the right of 
 property of the testator in a trade-mark (v), and other actions 
 of the like kind for injuries done to the personal estate of the 
 deceased in his lifetime (x). But if the cause of action is in 
 substance an injury to the person, the personal representative 
 cannot maintain an action merely because the person so 
 injured incurred in his lifetime some expenditure of money in 
 consequence of the personal injury (y). 
 
 So an executor or administrator may have a quare impedit 
 for a disturbance in the time of his testator or intestate, by 
 the equity of the statute 4 Edw. III. c. 7 {z). So the personal 
 representative of a termor may maintain ejectment, where 
 the testator had a lease for years, or from year to year, 
 whether the ouster was before or after his death [a). So he 
 
 injury done to the person of the edit. Smallwood v. Bishop of Co- 
 testator, but it was an injury to ventry, Cro. Eliz. 207. S. C. Savil. 
 his estate : 3 Bac. Abr. 98, Exors. 94, 118. Owen, 99. 1 Lutw. 1. 
 (P. 2). See also Spurstow v. 1 And. 241. 1 Leon. 205. 4 Leon. 
 Prince, Cro. Car. 297. 15. It appears from the report of 
 
 (r) Berwick v. Andrews, 1 Salk. the case in Lutwiche, Anderson, 
 
 314. and Saville, that the testator had 
 
 {s) Palgrave v. Wyndham, 1 only a chattel interest in the ad- 
 
 Stra. 212. vowson : But, semble, that the law 
 
 (t) Twycross v. Grant, 4 C. P. ]). is the same where he was seised in 
 
 40. fee ; for the ground of the decision 
 
 (u) Oakey r. Dalton, 35 C. D. is, tluit the void term was a chattel 
 
 700. which Avould have gone to the exe- 
 
 (v) Hatchard i: Mege, 18 Q. B. cut or if the disturbance had not 
 
 D. 771. been : Cro. Eliz. 207. See mite, 
 
 (x) 1 Saund. 217, n. (1). pp. 592, 593, et scq. 
 
 (y) Pulling V. Great Eastern (a) Slade's case, 4 Co. 95, a. 
 
 Ry. Co., 9 Q. B. D. 110, 112. Moreton's case, 1 Ventr. 30. Doe 
 
 (,-) Wcntw. Off. Ex. ]()1, 14tli r. Porter, 3 T. R. 1,3. Tie was
 
 700 Of the Quantify of an Executor.^ Estate. [Pt. ii. Bk. iii. 
 
 might luive had debt on the statute for not setting out tithes 
 
 duo to the testator (h) . 
 Actions for But the statute of Edw. III. does not extend to injuries 
 
 J.ei?on°o?the ^^ono to the pcrson (c), or to the freehold of the testator, 
 freehold do Therefore an executor or admininistrator shall not have actions 
 
 not survive to . i-i i /7\ i i 
 
 the executor. of assault or battery, false imprisonment, libel {a), slander, 
 deceit, nor (unless by virtue of the stat. 3 & 4 Wm. IV. c. 42, 
 B. 2, hereafter to be mentioned) {c) for diverting a watercourse, 
 obstructing lights, or other actions of the like kind : for such 
 causes of action still die with the testator (/). 
 
 Since actions founded on wrongs to the freehold do not 
 survive, it is clear that the executor cannot (unless by virtue 
 of the statute just cited) maintain trespass quare clausum 
 frcr/it {[/), nor an action merely for cutting down trees (h), 
 or other waste in the lifetime of the testator on his 
 freehold (/'), So if a man cut the growing corn of the 
 testator and let it lie, no action can be maintained by the 
 executor (k) ; but if the corn be cut and carried away, 
 (although he cannot have an action of trespass quarc clausum 
 frc(jit and hlada asportavit (I) he may have trespass dc bonis 
 asjyortavit on the statute of Edward III. : And even where 
 the executor declared that the defendant hlada crescentia 
 upon the freehold of the testator mcssuit dcfalcavit et 
 
 held entitled to an ejcctione firmce : (/) 1 S;mnd. 217, a., n. (1). 
 
 Bro. Abr. Executors, 45. Eussell {(j) Bio. Executor, pi. 120. 
 
 V. Prat, cited 1 And. 243. Peytoe's {h) "Williams v. Breedon, 1 Bos. 
 
 case, 9 Co. 78 6. & Pull. 329. 
 
 (6) Holl V. Bradford, 1 Sid. 88. (/) Godolph. Pt. 2, c. 22, s. 2. 
 
 Morton v. Hopkins, 1 Sid. 407. The executor of the lessor clearly 
 
 Moreton's case, 1 Vent. .30. But could not have an action of waste 
 
 he could not enforce payment ot (now abolished), for waste com- 
 
 tithes such as his testator never initted in the lifetime of the tes- 
 
 claimed : Cart v. Hodgkin, 3 tator ; for he had no right to re- 
 
 Swanst. 160. cover tlie place wasted, the in- 
 
 (c) See Dennian, J., in Pulling heritance of which has descended 
 
 r. G. E. By. Co., 9 Q. B. D. 110 to the heir : Wentw. Off. Ex. 163, 
 
 113. 14th edition. 
 
 (rf) Hatcliard v. Mege, 18 Q. B (/.•) Emerson c. EnuTson, 1 A'ent 
 
 D. 771. 187. 
 
 (.-) 7V7, p. 702. (0 lUd.
 
 Ch. I. § I.] Of Choscs in Action. 701 
 
 asportdvit, it was held, in Emerson v. Emerson (m), that the 
 action well lay, and that the allegation of mess nit and dejal- 
 cavit only described the manner of taking the corn away. It 
 was said in that case, that if the f/rass of the testator he cut 
 and carried away at the same time, no action will lie for the 
 executor, because the grass is part of the freehold ; but corn 
 growing is a chattel (n) : and the like distinction is taken in 
 Wentwortli's Office of an Executor (o) between a trespass in 
 destroying or taking away corn growing, and a trespass in 
 grass or wood growing ; because though the testator should 
 have died before severance, the corn would have gone to 
 tha executor (2J), whereas the wood and grass would have 
 gone to the heir. However, it should appear from the case 
 of Williams v. Brccdon (q), that an action may be maintained 
 by an executor against the man who has cut down and carried 
 away the trees of the testator, for taking and carrying away 
 " the goods and chattels, to wit, the wood, timber, and boughs 
 of the deceased in his lifetime." So where grass is mowed 
 by a trespasser, and carried away as hay, an action of trover 
 and conversion for so many loads of hay is doubtless 
 maintainable by the executor (r). 
 
 (m) 1 Vent. 187. stranger jjut in a herd of cattle 
 
 (n) See mite, p. 623, et seq. which swallow np and tread down 
 
 (o) P. 166, 14th edit. this fruit of her womb before the 
 
 {'p) See ante, p. 62.3, et seq, mower with his scythe come as a 
 
 (q) 1 Bos. & Pull. 330. midwife to help her delivery, if 
 
 (r) Went. Off. Ex. 167, Utii then, by the hasty death of the 
 
 edit. Tlie author of that work ex- owner, before action brought, this 
 
 presses his opinion that the execu- great trespass should be dispunish- 
 
 tor ought to be able to maintain able, it were contrary, as methinks, 
 
 an action on the statute Edw. III. to the purpose of the said statute, 
 
 in the case of meadow-grass con- and a great defect in the law." 
 
 snmed by the mouths of the cattle The same author proceeds to dis- 
 
 of a trespasser, in the following tinguish the case of the testator 
 
 curious language, pp. 167. 168: dying before the time for mowing, 
 
 "When meadow-ground, whicli and his surviving till the hay-timi; 
 
 yearly conceiveth {Sol sine homine was clearly past : in the latter case, 
 
 (jenerat herham), shall be ready to it is said, the executor certainly 
 
 be delivered of her burthen, if a ought to have his action, because
 
 702 
 
 Of the Quantltij of aye Executor s Estate. [Pt. ii.Bk. ill. 
 
 Actions for 
 torts to 
 cliattcls real. 
 
 3 & 4 Will. IV. 
 
 c. 42, s. 2, 
 Executors, &c., 
 may within a 
 year after the 
 
 A distiuctiou is suggested by the author of the Office of an 
 Executor, with reference to the estate of the owner of land : 
 for assuming that where the land is his freehold or copyhold 
 inheritance, no action should be given to his executor for 
 wood or grass destroyed in his lifetime ; yet where he is 
 but tenant for years, or tenant by extent, so that the very 
 estate in the land was to come and is to come to the executor 
 (together with qiiicquid plautatur solo), the executor or admi- 
 nistrator, in the opinion of the author, ought to have, together 
 with the estate in the soil, the action to punish the trespasser 
 upon the soil (s). 
 
 In Adam v. The Inliahitants of Bristol (t) , a point was 
 raised with respect to this subject, which it ultimately became 
 unnecessary for the Court to decide : viz., whether the exe- 
 cutor of a lessee for years could in any case maintain an 
 action against the Hundred, upon the stat. 7 & 8 Geo. IV. 
 c. 31, s. 2, for an injury by rioters to the premises underlease 
 sustained in the lifetime of the testator (?t). 
 
 By stat. 3 & 4 Wm. IV. c. 42, s. 2, after reciting that no 
 remedy is provided by law for injuries to the real estate of 
 any person deceased, committed in his lifetime, for remedy 
 
 if tlie trespass had not been com- 
 mitted, the grass would have been 
 a chattel severed, and the per- 
 sonal estate would have been in- 
 creased. 
 
 (s) Wentw. Off. Ex. 169, 14th 
 edition. 
 
 (0 2 Adol. & Ell. 389. 
 
 (ti) It was urged by the counsel 
 for the plaintiff in this case, that 
 the authorities show that an exe- 
 cutor may sue for a trespass to a 
 chattel real of his testator, inas- 
 much as it has been held that an 
 executor may maintain ejectment, 
 or ejcctione firmce, on the ouster of 
 his testator (see ante, p. 699, and 
 note (a), which are, in fact, ac- 
 tions of trespass) : And Peytoe's 
 
 case, 9 Co. 78, 6, was cited. There 
 the Court referred to 7 H. IV., 6 h, 
 as having decided that by force of 
 the stat. 4 Edw. III. c. 7, which 
 gives an action of trespass de bonis 
 asportatis in vita testatoris, the exe- 
 cutors shall have ejedione firmce in 
 vitd testatoris, because that is an 
 action of trespass. On reference 
 to the Year Book itself, it appears 
 that, in fact, the argument for tlie 
 executor was that the statute enacts 
 that executors shall have action for 
 the goods taken from the posses- 
 sion of their testators, and the term 
 is nothing but a chattel : And by 
 Hankford : If tenant by elegit be 
 disseised and dies, his executor-^ 
 shall have an action for that.
 
 Ch. I. § l] Of Chases in Action. 703 
 
 thereof it is enacted, that an " action of trespass, or trespass death of the 
 
 on the case, as the case may be, may be maintained by the brinf^ actions' 
 
 executors or administrators of any person deceased, for any fo^ injuries to 
 
 injury to the real estate (x) of such person, committed in his committed 
 
 . . within six 
 
 htetime, for which an action might have been maintained mouths before 
 
 by such person, so as such injury shall have been committed "^'^^ '' 
 
 within six calendar months before the death of such deceased 
 
 person (7/), and provided such action shall be brought within 
 
 one year after the death of such person ; and the damages, 
 
 when recovered, shall be part of the personal estate of such 
 
 person." 
 
 A further most important alteration in this part of the law 9 & 10 Vict 
 has been effected by the stat. 9 & 10 Vict. c. 93 {eniitled An Act ^£0!^' q^^^. 
 for compensating the Families of Persons killed hy Accidents), '^^^^'^ ^'^^^ '■ 
 which, after reciting that " no action at law is now maintain- 
 able against a person who by his wrongful act, neglect, or de- 
 fault may have caused the death of another person, and it is 
 oftentimes right and expedient that the wrongdoer in such 
 case should be answerable in damages for the injuries so 
 caused by him:" enacts, ''whensoever the death of a an action to be 
 person (-2-) shall be caused by wrongful act, neglect, or ^aiSany ^ 
 
 (x) Qucere, whether these words it was held that though any action 
 
 apply to injuries to chattel inte- hj the executor for injury to the 
 
 rests in land, or whether a remedy plaintiff's real estate might under 
 
 is given hy the stat. 4 Edw. III. c. this section be limited to the six 
 
 7 : See siqwa, p. 702, and note {u). months prior to the lalaintiif 's 
 
 {y) In an action where a sole death, still he could recover 
 
 plaintiff in an action for a manda- damages to this extent. As to 
 
 tory injunction and damages for the claim for mandatory injunc- 
 
 obstruction to the access of light tion, it was held that this devolved 
 
 to a freehold house, had died more on the executor in his right as de- 
 
 than six months after the issue visee, and that consequently he 
 
 of the writ the executor and de- could maintain such claim : Junes 
 
 visee obtained the common order r. Simes, 43 C. D. G07. 
 to carry on proceedings. On (2) The Explorer, L. E. 3 Adm. 
 
 motion to discharge this order for 289 : where it was held that the 
 
 irregularity on the ground that i)rovision of the above Act ex- 
 
 the cause of action did not con- tended to a case where the jierson, 
 
 tinue, and tliat there was no trans- in respect of whose death damages 
 
 mission of interest to the executoi', were sought to be recovered, was
 
 "04 
 
 Of the Quantity of an Executor s Estate. [Pt. ii. Bk. iii. 
 
 person causing 
 <leath through 
 neglect, &c. , 
 iiotnithstaiui- 
 ing the death 
 of the person 
 injurei] : 
 
 action to be 
 lor the benefit 
 of certain 
 relations, and 
 shall be 
 brought liy 
 and in the 
 name of 
 
 default, and the act, neglect, or default is such as would (if 
 death had not ensued) have entitled the party injured to 
 maintain an action and recover damages in respect thereof, 
 then and in every such case the person who would have been 
 liable if death had not ensued shall be liable to an action for 
 damages, notwithstanding the death of the person injured, 
 and although the death shall have been caused under such 
 circumstances as amount in law to felony." 
 
 By sect. 2, " Every such action shall be for the benefit of the 
 wife, husband, parent, and child {a) of the person whose death 
 shall have been so caused, and shall be brought by and in the 
 name of the executor or administrator of the person deceased; 
 and in every such action the jury may give such damages (/>) 
 
 ail alien, and was at tlie time of 
 the wrongfnl act, neglect, or de- 
 fault which caused his death, on 
 board a foreign vessel on the high 
 seas. 
 
 (rt) This does not extend to a 
 bastard child : Dickinson v. Xorth- 
 Eastern Eailway, 2 Hurlst. & C. 
 735. 
 
 {h) The jury, in estimating the 
 damages, cannot take into conside- 
 ration mental suffering or loss of 
 society, nor expenses incurred by 
 the funeral or mourning : Dal ton 
 V. South-Eastern Eailway Com- 
 pany, 4 C. B., N. S., 296 : but 
 must give compensation for pecu- 
 niary loss only : Blake v. Midland 
 Railway Company, 18 Q. B. 93. 
 But legal liability alone is not the 
 test of injury, in respect of which 
 damages may be recovered : The 
 reasonable expectation of pecu- 
 niary advantage by the relation 
 remaining alive may be taken 
 into account by the jury, and 
 damages may be given in respect 
 of tluit expectation being disap- 
 pointed, and the probable pecu- 
 niary loss thereby occasioned : 
 
 Franklin 
 way, 3 H 
 
 . South-Eastern Rail- 
 & N. 211. Dahon /■. 
 South-Eastern Railway, 4 C. B., 
 X. S. 296. Duckworth v. Johnson, 
 4 H. & N. 653. Pym v. Great 
 Northern Eailway, 2 Best & Sm. 
 7o9. S. C. (in error) 4 Best & 
 Sm. 396. Sykes v. North-Ea'^tern 
 Railway Company, 44 L. .T. C. P. 
 191. Hetherington r. North-East- 
 ern Railway Company, 9 Q. B. D. 
 160. It sliould be observed that 
 the statute gives to the personal 
 representative a cause of action 
 beyond that which the deceased 
 would have, if he survived, and 
 based on a different principle : 
 for the condition, that the action 
 could have been maintained by the 
 deceased if death had not ensued, 
 has reference not to the nature 
 of the loss or injury sustained, 
 but to the circumstances under 
 which the bodily injuiy arose, 
 and the nature of the wrongful 
 act, neglect, or default complained 
 of: Pym v. Great Xortheru Eail- 
 way Company, 2 Best & Sm. 767. 
 4 Best & Sm. 406. It must be 
 I'urtlier observed, that the remedy
 
 Cli. I. § l] 
 
 OJ Chases in Action. 
 
 705 
 
 as they may think proportioned to the injury resulting 
 from such death to the parties respectively for whom and 
 for whose benefit such action shall be brought ; and the 
 amount so recovered, after deducting the costs not recovered 
 from the defendant, shall be divided amongst the before- 
 mentioned parties in such shares as the jury by their verdict 
 shall find and direct (c) . 
 
 Sect. 3. '* Not more than one action shall lie for and in 
 respect of the same subject-matter of complaint : and every 
 such action shall be commenced within twelve calendar 
 months after the death of such deceased person. 
 
 Sect. 4. "In every such action the plaintiff on the record 
 shall be required, together with the declaration, to deliver 
 to the defendant or his attorney a full particular of the 
 person or persons for whom and on whose behalf such 
 
 executor or 
 administrator 
 of the 
 deceased : 
 
 given Toy tlie statute is to iudi- 
 viduals, and not to a class ; and 
 therefore, on the death of a person 
 whose income arose from land and 
 personalty, independent of any 
 exertion of his own, no portion of 
 which was lost to his family by 
 his death, the action is maintain- 
 able, if, in consequence of that 
 death, the mode of distribution 
 among the members is changed : 
 4 Best & Sm. 396. If, however 
 there is no evidence of actual 
 pecuniary damage (in the sense 
 above explained), the action will 
 fail : Duckworth v. Johnson, 4 H. 
 & N. 652. If the personal repre- 
 sentative of a deceased person 
 brings an action under this Act, it 
 is a good defence that tlie defen- 
 dants paid to such deceased person 
 in his lifetime, and he accepted ii 
 sum of money in full sati sfaction and 
 discharge of all claims and causes 
 of action he had against the de- 
 fendants : the cause of action being 
 defendant's negligence, wliicli has 
 W.E. — VOL. I. 
 
 only one 
 action shall 
 lie, and to be 
 commenced 
 within twelve 
 months : 
 
 plaintiff to 
 deliver a full 
 particular of 
 the person for 
 whom such 
 damages are 
 claimed : 
 
 been satisfied in the lifetime of 
 the injured person, and his death 
 does not create a fresh cause of 
 action : Read v. Great Eastern 
 Railway, L. R. 3 Q. B. 555. 
 
 (c) In a case where a sum of 
 money was received from a rail- 
 way company by way of compen- 
 sation by the executors of a person 
 whose death had resulted from 
 injuries received in an accident on 
 the railway, no action having been 
 brought under Lord Campbell's 
 Act, the executors brought an 
 action in the Chancery Division, 
 to which all the relatives referred to 
 in section 2 of the Act were parties, 
 asking for a declaration as to the 
 persons entitled to the money. 
 Tlie Court held that it could dis- 
 tribute the fund amongst sucli of 
 the relatives of the deceased as 
 suffered damage by reason of the 
 death, in the same manner as a 
 jury could have done in an action 
 under the Act : Bulmer v. Bul- 
 raer, 25 C. D. 40.9. 
 
 Z Z
 
 706 
 
 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. iii. 
 
 construction 
 of Act. 
 
 27 & 28 Vict. 
 c. 95. Where 
 no action 
 brought by 
 the executor 
 within six 
 months, it 
 may be 
 brought by 
 the persons 
 beneficially 
 interested in 
 the result. 
 
 action shall be brought, and of the nature of the claim in 
 respect of which damages shall be sought to be recovered [d). 
 
 Sect. 5. *' The following words and expressions are intended 
 to have the meanings hereby assigned to them respectively, 
 so far as such meanings are not excluded by the context or by 
 the nature of the subject-matter : that is to say, words denot- 
 ing the singular number are to be understood to apply also 
 to a plurality of persons or things ; and words denoting the 
 masculine gender are to be understood to apply also to per- 
 sons of the feminine gender ; and the word ' person ' shall 
 apply to bodies politic and corporate ; and the word ' parent ' 
 shall include father and mother, and gi'andfather and grand- 
 mother, and stepfather and stepmother ; and the word ' child ' 
 shall include son and daughter, and grandson and grand- 
 daughter, and stepson and stepdaughter." 
 
 By stat. 27 & 28 Vict. c. 95, s. 1, it is enacted, that if it 
 shall happen that no action such as is mentioned in statute 
 9 & 10 Vict, shall be brought by the executor or adminis- 
 trator of the deceased within six months after the death, such 
 action may be brought by and in the name of the persons 
 for whose benefit such action would have been, if it had been 
 brought in the name of the executor or administrator {e) . 
 
 The question has been raised as to whether, in a case 
 where a person has brought an action as administratrix of 
 the deceased under Lord Campbell's Act, and has obtained 
 judgment and been paid damages as such administratrix in 
 full satisfaction, and discharge, of the judgment and causes of 
 action, the same administratrix is entitled to bring another 
 action as administratrix, outside the provisions of such Act, in 
 respect of the assets and estate of the deceased, and whether 
 an admission on the record made in the action under the Act 
 can be set up in the other action, so that the defendants, who 
 have submitted in the action under the Act, are to be precluded 
 from denying the facts alleged in the other action. It was 
 
 {d) See Chapman v. Eotliwell, 1 {e) By sect. 2, money may be 
 
 E. B. & E. 168, as to tlie form of paid into Court in one sum. 
 the declaration.
 
 Ch. I. § I.] Of Choscs in Action. 1Q1 
 
 decided in Leggott v. Great Northern Rail. Co. (/), that in- 
 asmuch as the entire object and effect of the two actions are 
 totally different and they are brought in different rights 
 (although the machinery nominally is the same), the adminis- 
 tratrix, in the action under the Act suing, not in respect of 
 anything which belonged to the deceased, but by force of the 
 statute which enacts that the deceased's death is to be made the 
 subject of an action, just as if he had lived, the second action 
 is not barred by the judgment and satisfaction in the action 
 under the Act, and that there is no estoppel of which either 
 party can take advantage. 
 
 Akin to the right of action by an executor or administrator Employers' 
 under this Act, is that of the legal personal representative of a isso/ ^ '^ ' 
 
 deceased workman against his employer under stat. 43 & 44 Stat. 43 & 44 
 
 . . Viet. c. 42. 
 
 Vict. c. 42 (Employers' Liability Act, 1880), which enacts 
 
 " where after the commencement of this Act personal injury 
 is caused to a workman " in any of the various ways men- 
 tioned in section 1, " the workman, or, in case the injury Sect. 1. 
 results in death, the legal personal representatives of the 
 workman, and any persons entitled in case of death, shall 
 have the same right of compensation and remedies against 
 the employer as if the workman had not been a workman of, 
 nor in the service of, the employer, nor engaged in his work. 
 
 Section 2, enumerates cases in which the workman shall not Sect. 2. 
 be entitled to any right of compensation or remedy under the 
 Act. 
 
 Section 3, limits the amount of compensation recoverable Sect. 3. 
 under the Act. 
 
 By section 4, an action under the Act shall not be main- Sect. 4. 
 tainable unless notice that the injury has been sustained is 
 given within six weeks, and the action is commenced within 
 six months from the occurrence of the accident causing the 
 injury, or, in case of death, witliin twelve months from the time 
 of death : provided always, that, in case of death, the want of 
 such notice shall bo no bar to the maintenance of such action 
 
 (/) 1 Q. E. D. 59D. 
 
 7, z 2
 
 708 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iii. 
 
 if the judge shall be of opinion that there was reasonable 
 
 excuse for such want of notice. 
 Sect. 5. By section 5, money payable under any penalty is to be 
 
 deducted from compensation awarded. 
 Sect. 6. Section 6, assigns the trial of actions under the Act to the 
 
 County Court (subject to removal into the Superior Court). 
 Sect. 7. Section 7, deals with the contents of the notice of injury 
 
 required by the Act, and the mode of service. 
 
 Actions ex It must be observed, that if the executor can show that 
 
 tractu. damage has accrued to the personal estate of the testator by 
 
 the breach of an express or implied promise, he may well 
 sustain an action, at common law, to recover such damage, 
 although the action is in some sort founded on a tort. Thus 
 in Knights v. Quarles (g), where an administrator declared 
 in assumpsit against an attorney for negligence in investi- 
 gating a title about to be conveyed to the intestate, and the 
 declaration went on to allege special damage to the personal 
 estate ; the defendant demurred ; and it was urged on his 
 behalf, that the action, though in form ex contractu, was in 
 substance ex delicto, the breach of promise complained of 
 being no more than a tort arising out of a neglect of duty : 
 But the Court were of opinion that there was no ground for 
 the demurrer, an express promise being alleged, a breach of 
 it in the lifetime of the intestate, and an injury to his per- 
 sonal property, the truth of which allegations was admitted by 
 the demurrer : that it made no difference in this case whether 
 the promise was express or implied, the whole transaction 
 resting on a contract ; that though, perhaps, the intestate 
 might have brought case or assum^isit at his election, 
 assuvipsit being the only remedy for the administrator, it 
 was very necessary the action should be maintained, or the 
 defendant might escape out of the consequences of his 
 misconduct, and the intestate's estate sufier an irreparable 
 injury : It was further observed, that if a man contracted 
 
 {cj) 2 Brod. & Bingh. 102.
 
 Ch. I. § l] Of Choses in Action. 709 
 
 for a safe conveyance by a coach, and sustained an injury 
 by a fall, by which his means of improving his personal 
 property were destroyed, and that property in consequence 
 injured — though it was clear, he, in his lifetime, might, at 
 his election, sue the coach proprietor in contract or in tortf 
 it could not be doubted that his executor might sue in 
 assumpsit for the consequences of the coach proprietor's 
 breach of contract (//) . 
 
 The above rule of the common law that actio ijcrsonalis Whether the 
 
 , 1 , , . T , rule actio per- 
 
 montur cum lyersona seems never to have been applied by sonalismoritur 
 the old authorities to causes of action on contracts: On the c"'«'i'«'"«««^ 
 
 can ever be 
 
 contrary, those authorities are uniform, that this maxim applied to 
 
 actions on 
 
 is always to be understood of a toi't, and that the personal contracts : 
 representative may sue, by the common law, not only for all 
 debts due to the deceased by specialty or otherwise, but for all 
 covenants and indeed all contracts with the testator broken in 
 Ids lifetime (i). And the reason appears to be that these are 
 Choses in Action, and are parcel of the personal estate, in 
 respect of which the executor or administrator represents the 
 person of the deceased, and is in law his assignee (j). But 
 these authorities have been limited by modern decisions here- 
 after to be mentioned, and must, at this day, be understood 
 with some qualification. 
 
 A qualification has, in the first place, been introduced by where the 
 the case of Chamberlain v. Williamson (k), which seems to tract was an ' 
 have established that no action is maintainable by the execu- ^"J"''^ *'° ^^'^ 
 
 •' person : 
 
 tor or administrator upon an express or implied promise to 
 
 (h) See Accord. Alton v. Mid- Bac. Abr. Exors. (N.). 
 land Railway" Company, 19 C. B., (j) Raymonds. Fitch, 2 Crompt. 
 
 N. S. 242, per Willes, J., and Mees. & Rose. 588, 597. Ante, 
 
 Bradshaw v. Lancashire and York- p. 69G. 
 
 shire Railway Company, L. R. 10 (k) 2 Maule & Selw. 408. For 
 C. P. 189 : but as to the latter the converse of this case, see Fin- 
 case, see the observations made by lay v. Chirney, 20 Q. B. D. 494, 
 Mellor and Qnain, J.J., in Leggott where it was held that an action 
 V. Great Northern Railway Com- for breach of promise of marriage 
 pany, 1 Q. B. D. 599. where no special damage is alleged, 
 
 (t) See Com. Dig. Administra- doesnotsurviveagainstthepersonal 
 
 tion (B. 13). Covenant (B. 1). representatives of the promisor.
 
 710 Of the Qxiantity of an Executors Estate. [Pt. ii. Bk. in. 
 
 the deceased, where the damage consisted entirely in the per- 
 sonal suifering of the deceased, without any injury to his 
 personal estate. " Executors and administrators," said Lord 
 Ellenhorough in that case, " are the representatives of the 
 personal property, that is, the dehts and goods of the deceased, 
 hut not of their wrongs, except where those wrongs operate 
 to the temporal injury of their personal estate." Accordingly 
 it was there held, that an executor or administrator cannot 
 have an action for a hreach of promise of marriage to the 
 deceased, where no special damage to the personal estate can 
 be stated on the record (?). So with respect to injuries 
 affecting the life and health of the deceased : all such as arise 
 out of the unskilfuiness of medical practitioners; the im- 
 prisonment of the party brought on by the negligence of his 
 attorney ; generally speaking, no action can be sustained by 
 the executor or administrator on a breach of the implied 
 promise by the person employed to exhibit a proper portion of 
 skill and attention : such cases being, in substance, actions 
 for injuries to the person (???). 
 actions upon ^ further qualification of the old authorities has taken 
 
 covenants place in respect to contracts relating to the freehold. 
 
 It has been settled, from the earliest times, that the right 
 to sue upon covenants real will in many cases descend to 
 the heirs of the covenantee, or go to his assignee, to the 
 exclusion of the executor. Thus, if a feoffment be made in 
 
 (?) Mr. Serjeant Peake, who such case had occurred in tlie 
 argued in Chaml jerlain v. Wil- Court of K. B. there, but that in 
 liamson, in support of the exe- the year 1813, a case of — Adniinis- 
 cutor's right, stated that a case of trator of Tewtry v. O'Eegan (in 
 the sort liad been lately before which he was counsel), had come 
 the K. B. in Ireland, in which the before the Court of Exchequer, 
 action had been held maintainable. and that Court held, that the 
 But that learned person did the action was not maintainable, 
 writer the favour of informing (m) Chamberlain v. Williamson, 
 him, tliat although he (Serjeant 2 M. & S. 415, 416. See ante, 
 Peake) was so instructed by his pp. 708, 709, as to the cases where 
 client, he afterwards received a actions of this kind are main- 
 letter from Mr. Gould, of the tainable. 
 Irish Bar, informing him that no
 
 Ch. I. § I.] Of Choses in Action. 711 
 
 fee, and tlie feoffor covenants to warrant the lands or other- 
 wise, to the feoffee and his heirs, in this case the heir of the 
 feoffee shall take advantage of the covenant {n). So the 
 interest in a covenant to levy a fine has been taken to be an 
 inheritance descending to the heir of the covenantee (o). And 
 the heir may have an action on a covenant real, although 
 nothing has descended on him from the ancestor, with which 
 the covenant can run : As if A. covenant with B. and his heirs 
 to infeofif B. and his heirs, and B. dies before it be done, in 
 this case his heirs shall take advantage of it {p). So where 
 three coparceners purchased land in fee and mutually cove- 
 nanted for them and their heirs, with them and every of them 
 and their heirs, that the survivors should convey to the heirs 
 of such as should die first, it was resolved that this was a real 
 covenant, and went to the heir of the covenantee {q). And a 
 covenant which runs with the land will go to the heir, not 
 only without naming him, but where it is made with the 
 covenantee and his executors (r). 
 
 But if such a covenant had been broken in the lifetime of 
 the testator, or intestate, it should seem, according to the old 
 
 (n) Touchst. 175. heir, it was a damage to the heir, 
 
 (o) Winter v. D'Evreux, 3 P. and the jury must give as much in 
 
 Wnis. 189, note (B). damages as will put the i^remises 
 
 {])) Fitz. N. B. 145, C. Touchst. into repair ; but that thereby no 
 
 175. damages are given in respect of 
 
 {q) Wooton v. Cooke, Jenk. 241. the time the premises continued in 
 
 if) Lougher v. Williams, 2 Lev. decay, but in respect of what it 
 
 92. So where the heir assigned a will cost at the time of action 
 
 breach in covenant, that the pre- brought to put the premises in 
 
 mises were out of repair tali die ct repair : wherefore per decern annos 
 
 per decern annos, which included was frivolous : Vivian v. Campion, 
 
 part of his ancestor's time ; after 1 Salk. 141. According to a 
 
 verdict for the plaintiff, it was report of this case in 11 Mod. 45 
 
 moved in arrest of judgment ihut (a book, it must be allowed, of 
 
 part of the ten years occurred in indifferent authority), Lord Holt 
 
 the life of the ancestor; but it added, that the heir ought not to 
 
 was laid down by Holt, C.J., that allege a breach in the ancestor's 
 
 if the premises were out of repair time, because that belongs to the 
 
 in the time of the ancestor, and executor. 
 
 continued so in the time of the
 
 12 
 
 Of the Quantity of an Executoi^'s Estate. [Pt. ii. Bk. iii. 
 
 where a formal 
 breach only 
 has taken 
 place in the 
 testator's life- 
 time, but the 
 substantial 
 damage has 
 arisen since 
 his death : 
 
 authorities before mentioned, that the rule was, that the 
 executor or administrator might sue upon it. Thus it is laid 
 down in Comyn's Digest (s), that if a man covenants with B., 
 his heirs and assigns uj^on a grant or conveyance of an in- 
 heritance, the executor or administrator may have covenant 
 for damages upon a breach in his lifetime {i). 
 
 This rule, however, has been directly qualified by the 
 decision of the case of Kingdon v. Nottle (u), followed by 
 that of King v. Jones (r), in which cases it was held that 
 where there are covenants real, that is which run with the 
 land, and descend to the heir, though there may have 
 been a formal breach in the ancestor's lifetime, yet if the 
 substantial damage has taken place since his death, the 
 real representative, and not the personal, is the proper 
 plaintiff. 
 
 In Kingdon v. Nottle, a grantor of an estate in fee had 
 covenanted with the grantee, that he was seised in fee and 
 had a right to convey, &c. : And it was held that the 
 executor of the grantee could not maintain an action, assign- 
 ing for breach that the grantor was not seised in fee and had 
 not a right to convey («,•)• In King v. Jones, a vendor had 
 covenanted with the vendee and his heirs for further assur- 
 ance on request, and a request was made by the vendee in his 
 lifetime to have a fine levied, but no such fine was levied, and 
 the vendee was not evicted during his lifetime, but his heir 
 was afterwards evicted : And it was held, that as the ultimate 
 
 (s) Tit. Covenant (B. 1). 
 
 (0 See also Went. Off. Ex. 160, 
 14th edition, where it is said, 
 "Perhaps some will doubt of co- 
 venant touching inheritance, viz., 
 the assurance of lands, or enjoy- 
 ment thereof free from this or that 
 incuml)rance, or the like ; yet 
 even in those cases, if the covenant 
 were broken in the testator's life- 
 time, I think clearly the action is 
 accrued to the executor, for that 
 his testator was to recover damages 
 
 in the action of covenant for that 
 breach ; and he being entitled to 
 these damages as principal, and 
 not any accessory thing in that 
 action, the law hath cast that 
 action upon the executor." 
 
 («) 1 M. & S. 355. 
 
 {v) 5 Taunt. 418 : affirmed in 
 error in 4 M. & S. 188. 
 
 (w) In another action of the 
 same name, in 4 M. & S. 53, it was 
 held that the action was properly 
 brought by a devisee.
 
 oil. I. § I.] OfChoses in Action. 713 
 
 damage had not been sustained in the time of the ancestor, 
 the action remained to the heir in preference to the executor, 
 although the breach accrued in the ancestor's lifetime by the 
 request and refusal (x). 
 
 But it was admitted by the Judges, in these cases, that 
 when the ultimate damage is sustained in the lifetime of the 
 ancestor, as where he is evicted, and the land, and conse- 
 quently the covenant, does not descend to the heir, there 
 the executor can only sue upon the covenant (?/), And the 
 Court, with this distinction, recognized the decision of Lucy 
 V. Lcvbujton (z), where it was held that the executor might 
 recover for a breach, in his testator's life, of a covenant for 
 quiet enjoyment. 
 
 In the before mentioned case of Knights v. Quarles (a), an actions on 
 
 ,. /. .. 1 111" -I • • , . . contracts not 
 
 action 01 assumpsit was brought by an administrator, against under seal re- 
 
 an attorney, for negligence in investigating a title about to l^tmg to land : 
 
 be conveyed to the intestate, by means of which the premises 
 
 were conveyed to him with a bad title ; and the declaration 
 
 went on to aver, that the testator was thereby unable to sell 
 
 the property, and alleged special damage to the personal 
 
 estate : It was objected, on demurrer to the declaration that 
 
 this was a contract regarding land on which an administrator 
 
 could not sue : But the Court of Common Pleas unanimously 
 
 held the action well brought. 
 
 In Orme v. Broughton (h) the declaration, in an action of 
 assumpsit by an administrator, alleged that in consideration 
 that the deceased had agreed to buy certain land of the 
 
 (x) It was lield by Mr. Justice that the ancestor having been 
 
 Bayley, in the case of Kingdon v. evicted in his lifetime, nothing 
 
 Nottle, 1 M. & S. 362, that if descended to the heir, does not 
 
 the executor could allege in his appear quite satisfactory, inas- 
 
 declaration that the testator was much as an heir may sue on a 
 
 prevented from selling the estate covenant real, though he takes 
 
 by the assigned breach of the cove- nothing by descent : See ante 
 
 nant, perhaps he might maintain p. 711. 
 the action. (;j) 2 Lev. 26. 
 
 [y) 1 M. & S. 365, 366. 5 Taunt. («) 2 Brod. & B. 102. Ante, 
 
 ATI. The reason assigned in tliis p. 708. 
 case for I'Xcludiiig the heir, (('.v., (/*) 10 Biiigli. ■^)33.
 
 714 Of the Quantity of an Uxecittor\s Estate. [Pt. ii. Bk. iii. 
 
 defendant at a certain price, and had paid him part thereof, 
 as deposit money, the defendant promised the deceased to 
 furnish an abstract of a good title to the land, in sufficient 
 time for the completion of the purchase by a day specified, 
 and that he was requested by the deceased to furnish it, and 
 failed ; by means whereof the deceased lost the benefit of the 
 purchase, and was put to expense in endeavouring to procure 
 the said title, and was deprived of the use of the money 
 deposited : To this declaration the defendant demurred : and 
 it was urged, in support of the demurrer, that the contract 
 was still open and existing, and that, though the intestate 
 had recovered damages, he might still have brought a second 
 action, or have proceeded in equity to enforce the perform- 
 ance : and that the damage, if any, was to the heir, and not 
 to the administrator : But the Court of Common Pleas held 
 that the plaintiff was entitled to judgment ; for that there 
 appeared on the face of the record a personal contract, a 
 breach of it in the lifetime of the intestate, and a loss to his 
 personal property : That after bringing an action in which 
 the grievance alleged was a loss sustained by breach of the 
 contract, it would be impossible to bring a second action, or 
 to resort to any other means to enforce the contract : And 
 that it was clear the heir could not sue the defendant ; for in 
 all the cases where the heir had sued, the action had been on 
 a covenant : but he could have no right of action on a mere 
 agreement to sell, 
 whether an The language of the Judges in the before-mentioned case of 
 
 suro"n°a™n^ ChamhevMn v. Williamson (c), seems to justify an inference, 
 tract broken in that the right of an executor or administrator to sue on a 
 
 the testator's ^ t n i • i ^ 
 
 life, where no breach of Contract made with the deceased is confined to cases 
 
 pereonal estate ^^ which such breach can be stated as a damage to the per- 
 
 can be stated : gonal estate : And although in the earlier case of Kingdon v. 
 
 Nottle (d), where the plaintiff sued as executor, it seems to 
 
 have been in some degree conceded by the Court that if (oiy 
 
 damage had accrued to the testator in his lifetime, by breach 
 
 (c) Ante, p. 709. (d) 1 M. & S. 355.
 
 Ch. I. § I.] Of Choses in Action. 715 
 
 of the covenant real, the executor might have maintained 
 the action : j'et Lord Ellenborough, when the case oi King don 
 V. Nottle was again brought before the Court (e) (the devisee 
 being then the plaintiff), appears to regard the intervening 
 case of Chamberlain v. Williamson, as having established 
 that the right to sue is so confined. 
 
 In a former edition of this Work, the writer ventured to 
 suggest a doubt, whether the law thus considered was not at 
 variance with two former decisions, viz., the case of Morley 
 V. Polhill (/), and that of S7nith v. Simonds (g), which did 
 not appear to have been noticed by the counsel or Court, 
 in any of the modern cases on the subject of the right of 
 an executor to sue on breaches of covenants, running with 
 the land, incurred in the lifetime of the testator. In the 
 former of these two cases, it was held that the executor of 
 a deceased bishop might bring an action against a lessee on a 
 breach, in the lifetime of the testator, of a covenant to repair 
 in a former bishop's lease : In the latter, an administrator de 
 bonis non brought covenant, and assigned for breach, in the 
 lifetime of his testator, that the laud was not discharged 
 of incumbrances ; and it was held on error that the action 
 well lay. 
 
 This doubt has been justified by the subsequent decision 
 of the Court of Exchequer in Raymond v. Fitch (li). In 
 that case, the question was, whether an executor could sue 
 the lessee of his testator on a breach of a covenant not to 
 fell, stub up, head, lop or top timber trees, excepted out of 
 the demise, such breach having been committed in the life- 
 time of the testator ; and no part of the timber, loppings or 
 toppings appearing to have been removed by the defendant : 
 And it was held in the affirmative : and Lord Abinger, in 
 delivering the judgment of the Barons, observed, that it had 
 been urged on the part of the defendant that the limitation 
 of the old authorites, eifectcd by the case of Chamberlain 
 V. Williamson, must be applied to all contracts except such 
 
 (e) 4 M. & S. 53. (r/) Comberb. 64. 
 
 (/) 2 Ventr. 56. (A) 2 Croinpt. M. & R. 588.
 
 716 Oftlie Qucmtity of an Executor's Estate. [Pt. ii. Bk. iii. 
 
 as directly relate to the personal estate, and the performance 
 of which would necessarily be a benefit, and the breach a 
 damage, to the personal estate of the testator, whether such 
 contracts are under seal or not : and that upon such con- 
 tracts the executor could not sue without alleging a special 
 damage to the personal estate : But that the case certainly 
 did not go that length ; and that he and the other Barons 
 (Parke, Bolland, and Gurney) thought that such an exten- 
 sion of the doctrine laid down in it was not warranted by 
 law, and that it could not be extended to a contract broken 
 in the lifetime of the deceased, the benefit of which, if it 
 were yet unbroken, would pass to the executor as part of the 
 personal estate ; at all events, not to such a contract under 
 seal ; that the present case was one of that description ; 
 that it was a case more favourable to the executors than 
 those of Morley v. Polhill (i), Smith v. Simonds (f), and 
 Lucy V. Levincjton (k), in which the covenant ran with the 
 land ; and that if the last case was to be considered as having 
 been decided, as was suggested in the argument, on the 
 ground that the loss of rents and profits by an eviction of the 
 testator was an injury to the personal estate (though such a 
 ground was not intimated in either report), it was difficult to 
 say that the loss of the shade and casual profits of trees was 
 not equally so. 
 
 It should be observed, that in the case of Raymond v. 
 Fitch, above stated, the covenant in question was purely col- 
 lateral, and did not run with the land ; for the trees, which 
 it was covenanted not to fell, &c., were excepted from the de- 
 mise ; and therefore the heir or devisee of the land, on which 
 the trees grew, could not sue for a breach of the covenant, 
 whether incurred before or after the death of the covenantee : 
 Unless, therefore, the executor had the power to sue, all 
 remedy was lost. 
 
 The authority of this decision was fully confirmed and 
 acted on in in the subsequent case of Ricketts v. Weaver (I), 
 
 (i) Ante, p. 715, (k) Ante, p. 713. 
 
 ( j) Ante, p. 715. (/) 12 M. & ^X. 718.
 
 Ch. I. § I.] OJ Choses m Action. 717 
 
 in which it was held that an executor of a tenant for life 
 may sue for a breach, incurred in the testator's lifetime, by 
 his lessee, of a covenant to repair, without averring any 
 damage to his personal estate : — And the result of the case 
 of Raymond v. Fitch was stated by Parke, B., to be, that 
 unless it be a covenant in which the heir alone can sue 
 (according to Kingdon v. Nottle (m), and King v. Jones (n) ) 
 for a breach of the covenant in the lifetime of the testator, 
 the executor can sue, except it is a mere personal contract, 
 in which the rule applies that actio personcdis morltur cum 
 persona. 
 
 An action will lie for an executor or administrator upon 
 a promise made to the deceased for the exclusive benefit of 
 a third party : Thus, where A. promised to B. that if B. 
 would pay 50/. to C, his son, who was married to D., the 
 daughter of A., that then he would pay 100/. to D., his 
 daughter, at such a time ; B. paid the 50/. to C, and A. 
 failed of the payment of the 100/. : B. died intestate ; E,, his 
 executor, brought an action upon the case upon assumpsit, 
 upon the promise made to B., the intestate ; and it was 
 adjudged that the action did well lie by the adminis- 
 trator, although he should have no benefit by it if he did 
 recover (o). 
 
 Wherever the reversion is for years, the executor or actions on 
 administrator is of course the only party capable of suing covenants by 
 
 'I i- '' i- o executor ot 
 
 on a covenant made with the lessor, whether it run with reversioner 
 the land or be in gross (2^). An executor of tenant for 
 years is expressly within the statute of 82 Hen. VIII. c. 34, 
 and may maintain covenant against the assignee of the 
 reversion. 
 
 (to) Ante, p. 712. (^) Roscoe on Actions, 442. 
 
 (n) Ante, p. 712. See Mackay v. Mackreth, 2 Chitt. 
 
 (o) Bafield V. Collard, Sty. 6. Rep. 461.
 
 718 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iii. 
 
 SECTION II. 
 
 Particular instances lohere the Executor or Administrator is 
 entitled to Choses in Action 2chic]i the Deceased -might 
 have put in Suit, and where not. 
 
 The cases hitherto collected on this subject have been 
 pointed out merely to develop the general principle as to 
 the right of executors and administrators to the choses in 
 action, on which the deceased himself might have sued. 
 It remains to advert to some particular instances respecting 
 this portion of an executor's or administrator's estate, as 
 well in which his title has been denied as where it has been 
 established. 
 Annuities : First, as to annuities. An annuity is a yearly payment of 
 
 a certain sum of money granted to another in fee, for life, or 
 for years, charging the person of the grantor only {q). As it 
 concerns no land, it is so far considered personal property, 
 that although granted to a man and his heirs or the heirs of 
 his body, it is not an hereditament within the Statute of 
 Mortmain, 7 Edw. I. stat. 2 (r), nor entailable within the 
 statute de donis (s) ; and Lord Coke calls an annuity granted 
 to a man and his heirs a fee simple iicrsonal (t). But in one 
 respect, most important to the present subject, an annuity 
 partakes of the nature of real property : viz., that when 
 granted with words of inheritance, it is descendible, and goes 
 to the heir, to the exclusion of the executor (»)• Unless, 
 however, words of inheritance are employed in the grant, it 
 has been held that the annuity will pass to the executors : 
 As where a testator gave his real and personal estate to his 
 wife, subject, amongst other bequests, to an annuity of 50/. 
 to A. B./or ever ; and it was held, that for the want of the 
 
 (q) Co. Litt. 144, h. (f) Co. Litt. 2, a. 
 
 (r) Co. Litt. 2, a. note (1), by (h) Turner v. Turner, AmLl. 
 
 Hargrave. 782, 783. Stafford v. Buckley, 2 
 
 (s) Co. Litt. 20, a. and note (4), Yes. Sen. 179. 
 by Hargrave.
 
 Cli. I. § II.] Choscs III Action — Annuities. 719 
 
 word heirs in the gift, the annuity passed, on A. B.'s death, 
 to his j)ersonal representative (r). 
 
 There have been some modern decisions on the question 
 whether annuities are to be considered real or personal 
 estate. In Lord Stafford v. Buckley {x), Lord Hardwicke 
 decided, that an annuity in fee of 1,000L, granted by King 
 Charles the Second out of the Barhadoes duties, was not a 
 realty within the statute de donis, or Statute of Frauds : 
 and his lordship said, it was a personal inheritance, which 
 the law suffers to descend to the heir (y). In Lady Holder- 
 ncsse V. Lord Carmarthen [z), Lord Thurlow held that an 
 annuity of 4,000L charged upon the Post Office, until a sum 
 of 100,000^ should be paid, in order to be laid out in land, 
 was a mere personal annuity. In Auhin v. Daly {a), it was 
 held by the Court of Queen's Bench, with respect to the 
 same annuity which was the subject of Lord Hardwicke's 
 decision in Lord Stafford v. Buckley, that the legal estate 
 and interest in it passed by a will, not executed according 
 to the Statute of Frauds, in which there was a residuary 
 clause bequeathing all the rest, residue and remainder of the 
 personal estate, of what kind and nature whatsoever, to the 
 executors {h). 
 
 These cases of personal annuities in fee seem to form an 
 exception to two general rules : the one, that, before the 
 Wills Act (1 Vict. c. 26) came into operation, what would 
 
 {v) Parsons v. Parsons, L. R. hold and enjoy the estates, and to 
 
 8 Eq. 260. receive the rents thereof for ever, 
 
 {x) 2 Ves. Sen. 170. but subject to the payment of 201. 
 
 (y) 2 Ves. Sen. 178. yearly for ever, to his niece, her 
 
 (2) 1 Bro, C. C. 377. executors, administrators, and as- 
 
 (a) 4 Barn. & Aid. 59. signs ; with the payment of whicli 
 
 (6) But where the testator de- sum the testator made chargeable 
 
 vised his freehold estates to A. and his said estates, in manner and 
 
 B. and their heirs in trust, to form aforesaid, immediately after 
 
 permit his wife to hold and enjoy the decease of his wife ; Shadwell, 
 
 the same, and to receive the rents V.-C, held, that the niece took a 
 
 thereof for her life ; and after her legal rent-chanje of 201. jjcr annum 
 
 decease, in trust to permit liis in fee : Ramsay v. Thorngate, 16 
 
 nephew, his heirs and ahsigns, to Sim. 575.
 
 720 
 
 Of the Quantit?j of an Executor,"^ Estate. [Pt. ii. Bk. iii. 
 
 Caual sliares, 
 
 Shares iinJer 
 
 Companies 
 
 Acts. 
 
 Stock in the 
 public funds 
 
 devolve upon tlie heir, could not be devised from him, but 
 by a Will attested according to the Statute of Frauds : and 
 the other, that though personalty be specifically bequeathed, 
 it will in the first instance vest in the executor, and form part 
 of his estate. 
 
 In the cases of annuities above mentioned, the foundation 
 of the decision that they were personal property, was, that 
 they were in no way connected with land. But where an 
 inheritance is granted, which arises out of land, it is con- 
 sidered real property, and a fortiori, will not go to the 
 executor. In Buckeridge v. Ingram (c), shares in the navi- 
 gation of the river Avon, under the statute 10 Anne, were 
 held real estate (d). So in Hoicse v. Chapman (e), a share 
 in the Bath Navigation was held to be real property, which 
 descended to the heir : and the same was holden as to a New 
 River share (/). But in BligJc v. Brent (g) the Court of 
 Exchequer held that shares in the Chelsea Water Works 
 were to be considered as personal property. And it has been 
 usual of late years when Acts of Parliament are obtained for 
 the making of Navigable Canals, and similar works, to pro- 
 cure a clause to be inserted, directing that the shares shall be 
 deemed to be personal estate (Ji). 
 
 So by the Companies Act, 1862, it is enacted that " the 
 " shares or other interest of any member in a company under 
 " this Act shall be personal estate capable of being transferred 
 " in manner provided by the regulations of the Company " (i). 
 
 It is here necessary to notice the rights of executors and 
 administrators with respect to property in the public funds. 
 
 (c) 2 Ves. 653. 
 
 {d) Portmore r. Bunn, 1 B. & C. 
 699, 702. 
 
 (e) 4 Ves. 543. 
 
 (/) Drybutter r. Bartliolomew, 
 2 P. Wms. 127. Davall v. New 
 River Comp., 3 De G. & Sm. 394. 
 A lease of a lightliouse, and the 
 tolls thereof, by the Corporation of 
 Trinity House, has been held to be 
 
 a chattel real : Ex parte Ellison, 
 2 Y. & Coll. Exch. 528. 
 
 (cj) 2 Y. & Coll. Exch. 268. See 
 Hayler v. Tucker, 4 Kay & J. 248, 
 2)er Wood, V.-C. 
 
 (/i) See Thompson v. Thompson, 
 
 1 CoU. 381. Eobinson v. Addison, 
 
 2 Beav. 515. 
 
 {i) 25 & 26 Vict. c. 89, sect. 22.
 
 CIi. I. § II.] Choses ill Action — Stocks in the Funds. 721 
 
 The statute 1 Geo. I. sect. 2, c. 19, after creating a capital 
 or joint-stock, on which annuities at the rate of 5 per cent, 
 ■were to be attending, declares (sect. 9), " that all persons 
 who shall be entitled to any of the said annuities, and all 
 persons lawfully claiming under them, shall be possessed 
 thereof, as of personal estate, and the same shall not descend 
 to the heir : " It then enacts (sect. 11), that no method of 
 assigning or transferring the stock, other than that pointed 
 out by the Act, shall be good and available in law ; and it 
 is provided by the 12th section, that any person possessed 
 of the stock, with the annuity attending the same, may 
 devise the same by writing, attested by two witnesses, but 
 that no such devisee shall receive payment, till so much of 
 the devise as relates to the stock be entered in the proper 
 oftlce at the Bank ; and in default of such devise, the stock 
 and annuities attending the same shall go to the executor 
 and administrator. 
 
 The other Acts creating new Stocks contain, almost all of 
 them, provisions nearly similar ; and these provisions have 
 created a doubt, whether it was not the intention of the 
 Legislature that stock should, by the Will, pass to the 
 devisee, without the assent of the executor, and without, in 
 the first instance, vesting in him, and being assets in his 
 hands (j). But a series of modern decisions seems now to 
 have established that stock, having been made personal 
 property by the statutes, is like all other personal property, 
 assets in the hands of the executor : and consequently, that 
 although specifically devised, it must, in the first instance, 
 devolve upon the executor : and, till he assents, the legatee 
 has no right to the legacy (k). And now by stat. 33 & 34 
 
 (j) Pearson v. Bank of England, Franklin v. Bank of England, 1 
 
 2 Bro. C. C. 529. Bank of Eng- Buss. Clianc. Ca. 575. 9 B. & C. 
 land V. Lnnn, 15 Ves. 572, 578. 156. See also Churchill v. Bank 
 
 (Ic) Bank of England v. IMoffat, of England, 11 M. & W. 323 : In 
 
 3 Bro. C. C 260. Bank of England that case A. being possessed of 
 V. Parsons, 5 Ves. 665. Bank of 12,058^. 6s. Sd. New Three-and-a- 
 England v. Lunn, 15 Ves. 569. Half per Cent. Stock, bequeathed to 
 
 W.E. — VOL. I. 3 A
 
 722 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iii. 
 
 Servants. 
 
 Apprentices. 
 
 Yict. c. 71, s. 23, it is expressly enacted that, " The interest 
 of a stockholder dying (before or after the passing of this 
 Act) in stock shall be transferable by his executors or 
 administrators notwithstanding any specific bequest thereof. 
 The Bank of England or of Ireland shall not be required to 
 allow any executors or administrators to transfer any stock 
 until the probate of the "Will or the letters of administration 
 to the deceased has or have been left with the Bank for 
 registration, and may require all the executors who have 
 proved the Will to join in the transfer." 
 
 By the death of a master, his servant is discharged : and 
 therefore the executors or administrators of the former can 
 bring no action to enforce the contract of service after his 
 death {I). Nor has the executor or administrator, generally 
 speaking, any interest in an apprentice bound to the deceased. 
 In the case of Baxter v. Burfield (m), Lee, C.J., held that 
 an executrix could not maintain the action for debt upon bond 
 for performance of indentures of apprenticeship on the grounds, 
 (1) that the covenant was only to serve the master, and there 
 was no mention of executors or administrators ; (2) that the 
 covenant was a personal covenant, and that the interest of the 
 master in his apprenticeship is an interest coupled with a 
 personal trust which cannot be assigned, and which determines 
 by his death like the case of a guardian ; and, lastly, that the 
 
 E. C. a certain interest in 5,000L 
 parcel thereof : A judgment having 
 been obtained against E. C, the 
 judgment creditor obtained a 
 Judge's order under 1 & 2 Vict, 
 c. 110, S3. 14 and 15, charging 
 this latter sum with the judgment 
 debt, which upon cause shown was 
 made absolute as to so much of the 
 dividends as were payable to E. C. 
 for her own use : These orders 
 having been served upon the Bank 
 of England, the Bank refused in 
 consequence to pay the dividends 
 upon the 1 2,058?. Os. 8d. to the 
 
 executors under A.'s Will, and 
 tliey brought an action against the 
 Bank to recover those dividends ; 
 and the Bank then applied for a 
 stay of proceedings on payment of 
 a portion of the di^^dends : — And 
 it was held that there was no 
 ground or necessity for the applica- 
 tion, the Bank being bound to pay 
 the dividend to the legal ow^lers, 
 the executors who were answerable 
 for their proper application. 
 (Z) Wentw Off. Ex. 141,14th edit 
 (/h) 1 Bott. P. L. pi. 696, 6th 
 edit.
 
 CIi, I. § II.] Chases m Action — jippreiitices. 723 
 
 covenant to instruct is personal and cannot extend to executors 
 who may not be capable of instructing. The interest the 
 master has in his apprentice is a right to his service only. 
 The case of Herns v, Drake (ii), was further cited by the 
 Chief Justice as confirmatory of his statement of the law upon 
 this point. So in Piex v. Peck (o), Eyre, J., said, " an appren- 
 tice is a personal trust between the master and servant, and 
 determines by the death of either of them : and by the death 
 of either of them the end and design of the apprenticeship 
 cannot be attained, and it may be the executor is of another 
 trade." 
 
 But in the case of Cooper v. Simmons {})), where, by 
 indenture an infant, with the consent of his father, bound 
 himself apprentice to a tradesman, his executors and adminis- 
 trators, such executors or administrators carrying on the 
 same trade or business, and in the town of W., and with him, 
 and them to serve for the term of seven years, and the 
 master, in consideration of the service of the apprentice, 
 covenanted to teach and instruct him or cause him to be 
 taught and instructed during the term : it was held, that on 
 the death of the master, the apprentice was bound to serve 
 his widow, who was his executrix, whilst she carried on the 
 same business in the town of W., and that she was bound to 
 teach the apprentice. 
 
 And with respect to parish apprentices, by stat. 32 Geo. III. Parish 
 c. 57, s. 1, after reciting that on the death of the master of 32 Geo. ill. 
 any parish apprentice during the term of apprenticeship, '^' ^''' 
 the agreement for service on the part of the apprentice is 
 at an end, but the covenant for maintenance on the part of 
 the master still continues in force as far as his assets will 
 extend, or doubts have arisen with respect thereto ; it is 
 enacted, that in case of the death of the master during the apprentice 
 term of such apprenticeship, upon which binding no larger miumdoes 
 sum than 51. shall be paid, any covenant for the maintenance ""t f ^ceed r./. 
 
 ^ "^ _ sliall serve the 
 
 of such apprentice, inserted in the indenture, shall not be in executors of 
 
 (n) H. T. 8 Anil. Not re- (0) 1 Sulk. (■(;. 
 
 ported. (p) 7 M. & N. 707. 
 
 A 2
 
 ■•24 
 
 Of the Quantity of an Executor s Estate. [Ft. ii.Bk.iii. 
 
 his master or 
 their appointee 
 for three 
 months : 
 or for the 
 remainder of 
 the term of 
 apprenticeship, 
 on application 
 to two 
 justices. 
 
 Copyright 
 
 Patent : 
 
 Caroome : 
 
 Rent: 
 
 force longer than three calendar montlis next after the death 
 of such master, &c. ; and that during such three months such 
 apprentice shall continue to live with and serve as an appren- 
 tice the executor, &c., of such master, kc, or his appointee. 
 Sects. 2, 3 : Within such three calendar months after the 
 death of such master or mistress, two justices, on the applica- 
 tion of the widow, kc, may order that such apprentice shall 
 serve the applicant during the residue of the term ; and after 
 such order shall be made, the executors, &c., and the personal 
 estate of the master, &c., shall be discharged from any cove- 
 nant in such indenture. 
 
 An interest in the testator's literary property and also 
 certain works of art may devolve on the executor pursuant 
 to several statutes {q). An interest may also vest in him by 
 virtue of a patent granted to the testator, for the invention 
 of a new manufacture within the realm (?•). It seems to 
 have been questioned whether a caroome, or a licence by 
 the Mayor of London to keep a cart, is a chattel interest, 
 and belongs to the executor, or whether it goes to the 
 heir (s). 
 
 \\Tien a man seised in fee makes a gift in tail, or lease for 
 life or for years, reserving rent, the whole rent which becomes 
 due after his death shall go with the reversion (as an incident 
 thereof) to his heir, and not to his executor : for since, during 
 
 (q) 5 & 6 Vict. c. 45, as to 
 Copyright in Books ; 54 Geo. III. 
 c. 56, as to Busts and Sculptures ; 
 8 Geo. II. c. 13. 7 Geo. III. c. 38. 
 17 Geo. III. c. 57. 6 & 7 Wni. IV. 
 c. 59, as to Engravings and Prints. 
 5 & 6 Vict. c. 100, 6 & 7 Vict. 
 c. 65, as to Printed Linens, Mus- 
 lins, &c., and 25 & 26 Vict. c. 68, 
 as to Paintings, Drawings, and 
 Photographs. 
 
 (r) Toller, 152. By the Patents 
 Act, 1883, 46 & 47 Vict. c. 57, 
 s. 34, if a person possessed of an 
 invention dies without making 
 application for a patent for the 
 
 invention, application may be 
 made by, and a patent for the 
 invention granted to, his legal 
 representative. Every such appli- 
 cation must be made within six 
 months of the decease of such 
 person, and must contain a declara- 
 tion by the legal representative 
 that he believes such person to be 
 true and first inventor of the 
 invention. This alters the law as 
 laid down in Marsden v. Saville 
 Street Foundry, 3 Ex. D. 203. 
 
 (s) Com. Dig. Biens (B). Hunt 
 V. Hunt, 2 Vern. 83.
 
 Ch. I. § II.] Chases in Action — Re?it. 725 
 
 the continuance of the particular estate, the reversioner loses 
 the profits of the land, the rent ought to be paid to him as a 
 compensation for the loss (t). And though the rent should 
 be expressly reserved to the lessor, his executors and assigns, 
 without naming the heir, the executors cannot have it, being 
 strangers to the reversion, which is an inheritance (u). On 
 the other hand, if a lessee for years makes an underlease, 
 reserving rent, the rent accruing after his death shall go to 
 his executor or administrator, and not to his heir, even though 
 the reservation were to him and his heirs, during the term, 
 without mentioning the executors (v). In these cases, if the 
 personal representative sues the under-lessee for rent due 
 since the death of the testator or intestate, it must be alleged 
 that he had a chattel interest ; otherwise it shall be intended 
 that he was seised in fee, and then the rents belong to the 
 heir, and not to the executor or administrator {w). 
 
 Again, if a man being seized in fee of one acre of land, 
 and possessed of another acre for a term of years, makes a 
 lease rendering one entire rent, and dies ; whereby the 
 reversion of one acre goes to his heir, and of the other to his 
 
 (t) Co. Lit. 47, a. Cotlier v. Sim. 599. 
 
 Merrick, Hardr. 95. 3 Bac. Abr. {u) Co. Lit, 47, a. Whether 
 
 62. Executors (H. 3). The hxw the heir shall have it, though not 
 
 is the same where the lea.se is of mentioned, or it shall altogether 
 
 a house, and certain household determine by the lessor's death, the 
 
 implements therein : Anon. Dyer, cases are discordant : See notes (2) 
 
 362, a. Godolph Pt. 2, c. 24, s. 13, and (3) to Sacheverell v. Froggatt, 
 
 p. 19L So if a person covenants, 2 Saund. 367, b, where all the 
 
 grants, and agrees that another authorities are collected. See also 
 
 shall have and enjoy Blackacre for DoUen v. Batt, 4 C. B., N. S. 760. 
 
 a certain time, and the other cove- But if the rent be reserved during 
 
 nants to pay, in consideration the term to the lessor, his executors, 
 
 thereof, to the testator, his heirs, administrators, and assigns, the 
 
 executors, and assigns, a sum heir or devisee shall have it : 2 
 
 annually, the executor cannot sue Saund. 367, h. 
 
 on this covenant, for a breach after {y) 2 Saund. 371, u. (7), to 
 
 the death of tlie testator : Drake v. Sacheverell v. Froggatt. 
 
 IMunday, ("ro. Car. 207. But see (?/)) Norris v. Elsworth, 1 Freem. 
 
 Lord liatlierton v, Bradburne, 13 463.
 
 726 Oftlie Quantity of cm Executor'.^ Estate. [Pt. ii. Bk. in. 
 
 executors : tlie rent accruing after shall be apportioned 
 between Lis beir and his executors {x). 
 
 "Where no reversion is left in the lessor, and the rent is 
 reserved to his executors, administrators, and assigns, it will 
 go to them and not to the heir (?/). Thus a tenant for three 
 lives, to him and his heirs, assigned over his whole estate, 
 reserving to himself, his executors, administrators, and as- 
 signs, a rent of lOZ. with a proviso, that upon non-payment 
 the assignor and his heirs might re-enter ; and the assignee 
 covenanted to pay the rent to the assignor, his executors and 
 administrators : The question was, whether this rent should 
 go to the heir or executor of the assignor : It was decreed by 
 Sir J. Jekyll, that the rent should go to the executor, as it 
 was reserved to him, and there was no reversion left in the 
 assignor, to which the rent was incident, so as to carry it to 
 the heir : It was also held, that the covenant to pay the rent 
 to the executors and administrators of the assignor was good 
 and binding, both in law and equity : And though the proviso 
 was, that in case of non-payment of the rent, the assignor 
 and his heirs might re-enter, yet the Court thought this im- 
 material, as in equity the heir must, in this case, be looked 
 upon as a trustee for the executor : This case came on again 
 before Lord King, who was of opinion that, there being no 
 reversion, the rent might be well reserved to the executors 
 during three lives ; and decreed accordingly {z). 
 
 If a lessee for a term of years under-leases for a term 
 exceeding in length that for which he himself holds, and the 
 under-lessee covenants to pay rent to such lessee, his executor 
 
 (.r) Gilb. Reiitfs, 188. Moodie ?■. or years, rendering rent with condi- 
 
 Garnance, 3 Bulstr. 153, where tion, and the lessor dies ; in this 
 
 the Court is said to have clearly case, by this descent, Avhich is act 
 
 agreed upon the apportionment, of law, the reversion, rent, and 
 
 that liy act of law this may well condition are divided: 4 Co. 
 
 he. It was agreed in Dumpor's 120, h, Co. Lit. 215, a. 
 
 case, that if a man seised of two (y) 3 Cruise's Dig. 321, 3rd edit. 
 
 acres, the one in fee, and the other (•.) Jennison r. Lord Lexington, 
 
 in Borough-English, has issue two 1 P. "Wnis. 555. 
 sons, and leases hotli acres for life
 
 Ch. I. § II.] Choses in Action — Eent. I'l'l 
 
 may sue the under-lessee for rent accruing during the con- 
 tinuance of the lessee's term (a). 
 
 If the rent be reserved for years, and be severed from the 
 reversion, it may then go to the executor or administrator, 
 although the reversion goes to the heir : Thus if a man, 
 seised of land in fee, makes a lease for years, reserving rent, 
 and afterwards devises the rent to a stranger and dies, and 
 the stranger is seised of the rent and dies, his executors shall 
 have this rent and not his heirs {h). 
 
 Again, though the whole rent, which accrues after the Arrears of rent 
 death of the lessor, shall, in the cases above mentioned, go exgcufor ° * ^ 
 with the reversion to the heir, yet the arrearages of rent, 
 which incurred and became payable in the lifetime of the \^ 
 testator or intestate, shall, in all cases, go to his executor or j j 
 administrator as part of his personal estate (c). 
 
 The executors or administrators of tenant for life of a 
 rent-charge, and of tenant pur autre vie after the death of 
 cestui que vie, might bring debt to recover the arrears of such 
 rent by the common law, although they could not formerly 
 distrain for them (a) : but before the statute 32 Hen. VIII. 
 c. 37, the executor or administrators of a man seised of a 
 rent-service, rent-charge, rent seek, or fee farm, in fee-simple 
 or fee-tail, had no remedy for the arrears incurred in the 
 lifetime of the testator or intestate (e). By that statute a 
 double remedy is provided for them, viz., either to distrain or 
 
 (a) Baker v. Gostling, 1 Bingli. take ; for, before the statute of 
 
 N. S. 19. Hen. VIII., if the lease was for 
 
 (6) Knolle's case, Dyer, 5, h. years or the life of the testator, 
 
 (c) 3 Bac. Abr. 63. Executors it should seem that the executor 
 (H. 3). Wentw. Off. Ex. 129, 14th might liave brought debt, and was 
 edit. Godolph. Pt. 2, c. 13, 8. 3. only remediless in the case of his 
 
 [d) Co. Lit. J 02, h, and liar- testator being seised of a rent in 
 grave's note. 1 Saund. 281, note fee-simple or fee-tail, or x>ur autre 
 (1). It is said in Bacon's Abr. me as long as the estate of freehold 
 tit. Executors (N.), tit. Debt. (C), continued : See Gilljcrt on Rents, 
 that at common law an executor 98. 1 Saund. 281, n. (l)toDuppa 
 had no remedy for recovering of v. Mayo. 
 
 rent arrear in the lifetime of the (e) Co. Lit. 102, a. 1 Saund 
 
 testator ; but tliis appears a mis- 282, note(l) to Duppa v. Mayo.
 
 administrator. 
 
 728 Of the Quantity of an Executors Estate. [Pt. ii. Bk. in. 
 
 have an action of debt (/). The statute also gives, in terms, 
 the same double remedy to the executors of tenant for term 
 of life of rent-charges, &c. ; from which, at first view, it 
 might be inferred that the executors of tenant for life could 
 not bring debt at common law. But these words have, by the 
 best authorities, been considered to refer only to tenants inw 
 autre vie so long as cestui que vie lives (g). 
 Formerly "With relation, then, to the title of the executor or adminis- 
 
 important to ^ . ^ 
 
 ascertain when trator, at common law, to the arrears of rent accrued m the 
 so"as^trKo"o lifetime of the deceased, it used to be important to ascertain 
 the executor or j^]^g precise period at which rent might be said to be due, so 
 as to go to the personal representative, because generally 
 there was no apportionment in his favour as against the heir 
 or remainderman. 
 
 Before the passing of any of the Apportionment Acts, the 
 non-apportionment of rent often worked great hardship. 
 Thus, if the testator died before midnight on the day on which 
 the rent was payable, no part of such rent was recoverable by 
 the executor, and, in the case of a rent continuing after the 
 death of the testator, the whole rent passed with the reversion 
 to the remainderman or the heir, and in the case of rents 
 reserved on leases determining on the death of the person 
 making them, or on the death of the tenant j;?«' autre vie, the 
 rent was lost altogether. Similar hardships arose in respect 
 of annuities and other payments such as pensions, dividends, 
 moduses, and compositions, coming due at fixed periods. 
 Most of these hardships were gradually remedied by legisla- 
 tion, which provided not only for the apportionment, but also 
 for remedies for the recovery of the apportioned parts by the 
 parties entitled thereto, notably by stats. 11 Geo. II. c. 19, 
 and 4 Will. IV. c. 22 ; but these statutes omitted to deal with 
 some cases, and questions were constantly arising as to what 
 cases fell within the enactments. Now, however, the Appor- 
 
 (/) Co. Lit. 162, a. See a more Lit. 162, a, 162,6. 1 Saund. 282, 
 
 particular exposition of this sta- note (1) to Dupjia v. Mayo. See 
 
 tute, infra, Pt. iii. Bk. I. Ch. i. section 4, of this statute, infra 
 
 {g) See Margrave's notes to Co. Pt. iii. Bk. i. Ch. i.
 
 Cli, I. § II.] Choses in Action — A^pportionment. 
 
 729 
 
 tionment Act, 1870 (33 & 34 Vict. c. 35), has been passed in 
 such comprehensive terms that the cases as to the construc- 
 tion of the former Acts have ceased to be of any importance : 
 and, therefore, that portion of former editions of this Work 
 relating to them has been omitted. 
 
 By Stat. 33 & 34 Vict. c. 35 (the Apportionment Act, 
 1870), after reciting that whereas rents and some other 
 periodical payments are not at common law apportionable 
 (like interest on money lent) in respect of time, and for 
 remedy of some of the mischiefs and inconveniences thereby 
 arising divers statutes have passed, viz., 11 Geo. II. c. 19, 
 4 & 5 Wm. IV. c. 22, 6 & 7 Wm. IV. c. 71, 14 & 15 Vict. 
 c. 25, and 23 & 24 Vict. c. 154, and whereas it is expedient 
 to make provision for the remedy of all such mischiefs and 
 inconveniences it is enacted : — 
 
 Sect. 2. From and after the passing of this Act, all rents, 
 annuities, dividends, and other periodical payments {m) in 
 
 Apportionment 
 Act, 1870, 
 33 k U Vict, 
 c. 35. 
 
 Kents, &c., to 
 accrue from 
 day to day, 
 and to be 
 apportionable 
 in respect of 
 time. 
 
 Apportioned 
 jiart of rent, 
 &c., to be 
 
 {m) Tlie " other periodical pay- 
 ments" must be payments recur- 
 ring at fixed times, not at variable 
 periods nor in the exercise of the 
 discretion of one or more indi- 
 viduals, but from some antecedent 
 obligation, and must be in the nature 
 of income, i.e., coming in from some 
 kind of investment. There must 
 be a change in ownership, a change 
 in investments is not sufficient to 
 bring it within the Apportionment 
 Act. Re Clarke, 18 C. D. 160. 
 
 The income of a share in a pri- 
 vate iron company regulated 1)y 
 a deed of partnersliip under which 
 the accounts were made up yearly, 
 the ])rofits for the previous year 
 ascertained and the dividend to be 
 paid decided by the managing 
 partner, is n(jt a dividend or a 
 periodical pajment within the 
 meaning of this section. Jones r. 
 O-lc, L. R. 8 Cli. V.)-l. 
 
 Nor are the " net profits of a 
 newspaper " (the mode and time of 
 ascertaining and dividing which 
 are wholly in the discretion of 
 trustees) : Re Cox's Trusts, 9 C. D. 
 159. But payments by way of 
 bonus or surplus profits to the 
 shareholders of a public company 
 (even though such payments may 
 be only occasional and the period 
 of payment may be varied by 
 resolution) are " dividends " within 
 this section. Re Grifiith, 12 C. D. 
 655. The income arising from 
 personalty specifically bequeathed 
 is not apportionable under this 
 Act as between the si)ecific legatee 
 and the estate of the testator : 
 Whitehead v. Wlutehead, L. R. 
 16 Eq. 528. This Act api^lies to 
 a specific as well as to a residuary 
 devise. Hasluck v. Pedley, L. I!,. 
 19 Eq. 271.
 
 Of the Quantity of an Executor s Estate. [Pt. ii. Bk. in. 
 
 payable ■wlicn 
 the next 
 entire portion 
 shall have 
 become due. 
 
 Persons shall 
 have the same 
 remedies for 
 recovering 
 apportioned 
 parts as for 
 entire 
 l^ortions. 
 
 Proviso as to 
 rents reserved 
 in certain 
 cases. 
 
 nterpretation 
 of terms. 
 
 the iiJiturc of income (whether reserved or made payable under 
 an instrument in ^Yriting or otherwise) shall, like interest on 
 money lent, be considered as accruing from day to day, and 
 shall be apportion able in respect of time accordingly. 
 
 3. The apportioned part of any such rent, annuity, dividend, 
 or other payment shall be payable or recoverable in the case 
 of a continuing rent, annuity, or other such payment, when 
 the entire portion of which such apportioned part shall form 
 part shall become due and payable, and not before, and in the 
 case of a rent, annuity, or other such payment determined by 
 re-entry, death, or otherwise, when the next entire portion of 
 the same Avould have been payable if the same had not so 
 determined, and not before. 
 
 4. All persons and their respective heirs, executors, 
 administrators, and assigns, and also the executors, adminis- 
 trators, and assigns respectively of persons whose interests 
 determine with their own deaths, shall have such or the same 
 remedies at law and in equity for recovering such apportioned 
 parts as aforesaid when payable (allowing proportionate parts 
 of all just allowances) as they respectively would have had 
 for recovering such entire portions as aforesaid if entitled 
 thereto respectively ; provided that persons liable to pay rents 
 reserved out of or charged on lands or other hereditaments of 
 any tenure, and the same lands or other hereditaments, shall 
 not be resorted to for any such apportioned part forming part 
 of an entire or continuing rent as aforesaid specifically, but 
 the entire or continuing rent, including such apportioned 
 part, shall be recovered and received by the heir or other 
 person who, if the rent had not been apportionable under this 
 Act, or otherwise, would have been entitled to such entire or 
 continuing rent, and such apportioned part shall be recover- 
 able from such heir or other person by the executors or other 
 parties entitled under this Act to the same by action at law 
 or suit in equity-. 
 
 5. In the construction of this Act — 
 
 The word " rents " includes rent service, rent-charge, and 
 rent seek, and also tithes and all other periodical pay-
 
 Ch. I. § II.] Clioses in Action — Ajyportioyime'nt . 731 
 
 ments or renderings in lieu of or in the nature of rent or 
 tithe. 
 
 The word *'' annuities " includes salaries and pensions. 
 
 The word " dividends " includes (besides dividends strictly 
 so called) all payments made by the name of dividend, 
 bonus, or otherwise out of the revenue of trading or other 
 public companies (/(), divisible between all or any of the 
 members of such respective companies, whether such pay- 
 ments shall usually be made or declared at any fixed times 
 or otherwise ; and all such divisible revenue shall, for the 
 purpose of this Act, be deemed to have accrued by equal 
 daily increment during and within the period for or in 
 respect of which the payment of the same revenue shall 
 be declared or expressed to be made, but the said word 
 "dividend" does not include payments in the nature of a 
 return or reimbursement of capital. 
 
 6. Nothing in this Act contained shall render apportion- Act not to 
 able any annual sums made payable in policies of assurance poiicies°of 
 
 of any description. assurance : 
 
 7. The provisions of this Act shall not extend to any case nor where 
 in which it is or shall be expressly stipulated that no appor- niad" to'tbe 
 tionment shall take place (o). contrary. 
 
 (n) This will include any public seised in fee devised real estate by 
 
 company, but not a private partner- a Will dated before tlie Act, and 
 
 ship :i?e Griffith, 12 CD. 655. Jones confirmed by a codicil dated after 
 
 V. Ogle, L.R. 14 Eq.419. 8 Ch. 192. the Act, the rents were apportion- 
 
 A life assurance society, unincor- able between the executor and 
 
 porated, but established by a deed devisee. It was also held by Jessel, 
 
 of settlement, with a board of M.R., in Hasluck v. Pedley, L. R. 
 
 directors, capital, and a list of 19 Eq. 271, that the Act applied to 
 
 shareholders, and possessing cer- a devise contained in a Will dated 
 
 tain powers and concessions under before the Act to which a codicil 
 
 a special Act of Parliament, is a was made after the Act, and, se??i/;/f, 
 
 "public company" within the the result would have been the same 
 
 meaning of this section : Re Grit- without the codicil. This was fol- 
 
 fith, 12 C. D. 6,"5. lowed in Constable v. Constable, 
 
 (o) As to whether the effect of 11 C. D. 681. "The Act in my 
 
 this Act is retrospective, the case " opinion appliestoallcaseswhether 
 
 of Capron v. Capron, L. R. 17 Efj. " the instrument under which the 
 
 288, decides tliat wliere a testator " ipiestidu arises came into ojiera-
 
 732 
 
 OftliL' Quantitu oj an Executor s Estate. [Pt. ii. Bk. iii. 
 
 Copyliold 
 fines, &c. 
 
 Reliefs. 
 Heriots. 
 
 ironey col- 
 lected on briefs 
 for charity : 
 
 damages 
 recovered Ly 
 trustees 
 during a 
 tenancy for 
 life belong to 
 the executor 
 of the tenant, 
 and not to the 
 inheritance. 
 
 If the lord of a manor admit a copyholder, whereupon a 
 fine is set, and the lord die before the fine be paid, it will 
 belong to his executors, who may bring an assumpsit or debt 
 for it(p): for it is a fruit fallen, and shall not go with the 
 inheritance. So also of reliefs and heriots (</). 
 
 A copyhold estate entailed, consisting principally of a 
 house, having been burnt down, a sum of money was col- 
 lected on briefs, towards the rebuilding, and paid by the 
 trustees of the charity, into the hands of the guardian of 
 tenant in tail, who was an infant, and died under age, with- 
 out its having been so applied : a question arose between the 
 personal representatives of the infant, and those entitled to 
 the estate under the settlement : and it was held that the 
 money should go to the latter ; but that allowance should 
 be made to the former for the amount of the interest of the 
 money, from the time it was paid to the guardian to the death 
 of the infant (r) . 
 
 In Nolle V. Cass (s), a testatrix devised to trustees and 
 their heirs upon trust for her daughter during her life ; and 
 after her decease on trust for her niece, for life ; and after the 
 decease of her niece on trust for the children of the niece in 
 fee : The testatrix had granted a lease of the premises devised 
 for a term still subsisting : After the death of the daughter, 
 and during the lifetime of the niece, the trustees brought an 
 action against the lessee for a breach of the covenants of 
 that lease, by reason of dilapidations, and recovered 500Z 
 damages : Afterwards the niece died : and it was held by Sir 
 L. Shadwell, V.-C, that the sum so recovered belonged to 
 her administrator. 
 
 Sole 
 corporation 
 
 In the case of a sole corporation, as a bishop, parson. 
 
 Garnet, 3 
 
 " tion before or not till after tlie 
 " passing of the Act," x>er ilalins, 
 V.-C, in Re Cline's Estate, L. R. 
 18 Ecj^. 213, 214 : a case decided ex 
 IMrte but followed and approved 
 by Pearson, J., in Lawrence v. 
 Lawrence, 26 C. D. 795. 
 
 [p] Sliuttleworth 
 Lev. 261, 262. 
 
 {q) Andrew Ognel's case, 4 Co. 
 49, b. Co. Lit. 47, 6, 83, a, b, 
 162, b. 1 Watk. Cop. 322, note (/). 
 
 (r) Rook?;.Warth,lVes.Sen.460. 
 
 (..') 2 Sim. 313.
 
 Cli. I. § II.] Chores in Actio}i — Aiiportiomncnt. 733 
 
 vicar, master of an hospital, &c., no cliose in action can go 
 in succession ; for the successors shall no more have them 
 than the heirs of a private man ; since succession in a body 
 politic is inheritance in case of a body private {t) . There- 
 fore a bond given by an administrator under the Statute 
 of Distributions to the Ordinary passed, on his death, to his 
 executor and not to his successor (w). But by custom a chose chose in action 
 
 , . . goes to his 
 
 tn action may go m succession to a sole corporation; as m executors, and 
 
 London, where the Chamberlain is a special corporation °°*' \'^ 
 
 for taking bonds for the benefit of the Orphanage Fund, 
 
 which has been frequently adjudged a good custom (y) : 
 
 But he cannot take a bond to himself or his successors for 
 
 any other purpose (x). By the charter granted to the 
 
 College of Physicians, and confirmed in Parliament, the 
 
 off'enders in practising physic in London without admission 
 
 by the College of Physicians shall forfeit 51. for every month, 
 
 unum climiclium regi ct alterum dimidliun clicto j^residenti et 
 
 collegio ; on this charter it was holden that if the President 
 
 of the College recovers in debt against an offender and dies, 
 
 the successor shall have a scire facias to execute it, and not 
 
 the executor ; for the predecessor recovered it as due to him 
 
 and the College {y). 
 
 There has already been occasion to observe, that survivor- interest in 
 ship holds place, as well between joint-tenants of chattel artion does 
 property in possession or in action, as between joint-tenants "°*g||^^r *'' 
 of inheritance or freehold {z). Hence the general rule is, 
 that the interest which the testator had in a cliose in 
 action jointly with another, shall not pass to his executor {a) : 
 yet jjcr lerjem mercatoriam, as formerly mentioned, an 
 exception was established in favour of merchants, which has 
 been extended to all traders, and persons engaged in joint 
 
 (0 Fulwood's case, 4 Co. 65, a. (x) 2 Black. Comm. 432. 
 
 (it) Howley v. Knight, 14 Q. B. {y) Atkins v. Gardner, Cro. Juc. 
 
 240. IM. 
 
 (v) Byrd v. Wilford, Cro. Eliz. (») Ante, p. r,70. 
 
 4G4, 682. Fulwood's case, 4 ('o. (a) See, Southcote v. Iloare, 3 
 
 65, a. Taunt. 87.
 
 '34 
 
 Of the Quantity of an Executors Estate. [Ft. ii. Bk. iii. 
 
 Chose s in 
 action vested 
 at law in the 
 executor, 
 though 
 assigned by 
 the deceased. 
 
 Now by the 
 Judicature 
 Act chases in 
 action asii;^n- 
 abJe. 
 
 undertakings in the nature of trade (h). But in these cases, 
 although the right of the deceased partner devolves on his 
 executor, it is now fully settled that the remedy survives to 
 his companion, who alone must enforce the right by action, 
 and will be liable, on recovery, to account to the executor 
 or administrator for the share of the deceased (o). This 
 question will be more fully investigated hereafter, together 
 with the subject of remedies by executors and administrators 
 generally ((/). 
 
 In conclusion, it may be observed, that according to the 
 old law, although the deceased had, in his lifetime, assigned 
 all his interest in his clioses in action, still upon his death 
 the}^ would vest, at law, in his executor or administrator ; be- 
 cause at law clioses in action were not assignable. But now, 
 by the Judicature Act, 1873, sect. 25, sub-sect. 6, it is 
 enacted that "Any absolute assignment by writing under 
 the hand of the assignor (not purporting to be by way of 
 charge only) of any debt or other legal cliose in action of 
 which express notice in writing shall have been given to the 
 debtor, trustee, or other person from whom the assignor 
 would have been entitled to receive or claim such debt or 
 chose in action, shall be, and be deemed to have been effec- 
 tual in law [subject to all equities which would have been 
 entitled to priority over the right of the assignee if this Act 
 had not passed], to pass and transfer the legal right to such 
 debt or chose in action from the date of such notice, and all 
 legal and other remedies for the same, and the power to give 
 a good discharge for the same without the concurrence of the 
 assignor : Provided always, that if the debtor, trustee, or 
 other person liable in respect of such debt or chose in action 
 shall have had notice that such assignment is disputed by the 
 assignor or any one claiming under him, or of any other 
 opposing or conflicting claims to such debt or cJtose in action, 
 he shall be entitled, if he think fit, to call upon the several 
 
 (/)) Ante, p. 571. 
 
 (c) Martin r. Crouipe, 1 Lord 
 
 Raym. 340. 
 
 ((/) Infra, Pt. V. Bk. I. Cli. I.
 
 Cli. I. § II.] Clioses in Action — Bankruptcy. 73£ 
 
 persons making claim thereto to interplead concerning the 
 same, or he may, if he think fit, pay the same into the High 
 Court of Justice under and in conformity with the provisions 
 of the Acts for the relief of trustees." 
 
 The executor of a bankrupt is not entitled to his choses Executor of 
 in action, iox they are vested in the trustee in the bankruptcy, 
 for, vN'here any part of the property of a bankrupt consists of 
 things in action, such things shall be deemed to have been 
 duly assigned to the trustee (c). 
 
 In cases of wreck, by the stat. Westm. I. (3 Edw. I. c. 4), WieckeJ 
 if any one proves property in the wrecked goods within & ° ' 
 year and a day, they shall be restored to him without delay. 
 The year and a day, within which the owner may prove his 
 property, shall be computed from the seizure, as tcrcck: 
 And if the owner dies within that time, his executor or 
 administrator may prove his property (/). 
 
 An instance occurs of a claim, founded on contract, which Instances of 
 might have been enforced by the deceased, while alive, and tllnsmis^sibie 
 yet is not transmitted to the executor or administrator in ^'^ executors : 
 the case of arrears of pin-money, to which the wife herself 
 may be, to some extent, entitled, but which, as there has 
 been already occasion to show (g), cannot be recovered, to 
 any extent whatever, by her personal representatives. Again, arrears of 
 it does not appear to be satisfactorily settled that the Court ,,. 
 will allow the personal representatives of a wife to enforce 
 payment of the arrears of alimony against the husband ; and 
 it has been held that they cannot sustain a bill in equity for 
 that purpose (//). 
 
 (e) Bankruptcy Act, 1883, 4G & iiote(^), where Lord Lyndlmrst 
 
 47 Vict. c. 52, s. 50 (5). reversed the decision of the V.-C, 
 
 (/) 2 Inst. 108. Com. Dig. 7 Sim. 22. De Blaquiere v. De 
 
 Wreck (A). This statute has now IJlaquiere, 3 Hagg. 322. Wilson 
 
 been repealed. v. Wilson, 3 Hagg. 329, note (c). 
 
 {g) Ante, p. (;73. Vandergucht v. De Bla(|uicre, 5 
 
 {h) Stones v. Cooke, 8 Sim. 321, M. & Cr. 229, 241.
 
 736 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iii. 
 
 SECTION III. 
 
 The Right of an Executor or Administrator to Choses in 
 Action, as it respects Husband and Wife. 
 
 In considering the right of an executor or administrator 
 to choses in action, as it concerns the relation of husband 
 and wife, it may be proper, although the subject has become 
 of less importance than formerly by reason of the Married 
 Women's Property Act, 1882, to pursue the course employed 
 in a previous part of this Treatise, with respect to chattels 
 real ; and to investigate, 1. The right of the executor or 
 administrator of the husband to the choses in action of the 
 wife, when the wife survives : 2. The rights of the adminis- 
 trator of the wife, when the husband survives. 
 
 Law since By the Married Women's Property Act, 1882, 45 & 46 Vict. 
 
 Womis cap. 75, sect. 1 (1), it is enacted : 
 
 Property Act, << X married woman shall, in accordance with the provisions 
 
 1882 
 
 Stat. 45 & 46 of this Act, be capable of acquiring, holding, and disposing, 
 
 s.'i (n '''' ^y "^ill or otherwise, of any real or personal property as her 
 separate property in the same manner as if she were a feme 
 sole, without the intervention of any trustee." 
 
 Sect. 2. By section 2 : 
 
 " Every woman who marries after the commencement of 
 this Act (1 Jan., 1883) shall be entitled to have and to hold 
 as her separate property and to dispose of in manner afore- 
 said {i.e. as in sect. 1 (1) ) all real and personal property 
 which shall belong to her at the time of marriage or shall be 
 acquired by or devolve upon her after marriage." 
 
 Sect. 5. By section 5 : 
 
 " Every woman married before the commencement of this 
 Act (1 Jan., 1883) shall be entitled to have and to hold and 
 to dispose of in manner aforesaid {i.e. as in sect. 1 (1) ) as 
 her separate property all real and personal property her title 
 to which, whether vested or contingent, and whether in 
 possession, reversion, or remainder, shall accrue after the 
 commencement of this Act" (1 Jan., 1883).
 
 Ch. I. § III.] Choses in Action of Wife. 737 
 
 And by Section 19 : Sect. 19. 
 
 ** Nothing in this Act contained shall interfere with, or 
 affect, any settlement, or agreement for a settlement, made, or 
 to be made, whether before or after marriage, respecting the 
 property of any married woman, or shall interfere with, or 
 render inoperative, any restriction against anticipation at 
 present attached, or to be hereafter attached, to the enjoyment 
 of any property or income by a woman under any settlement, 
 agreement for a settlement. Will, or other instrument." 
 
 The result of these four sections will be that with regard General effect 
 to such property as by sections 2 and 5 is made the separate Act. 1882. ' 
 property of the wife, the husband will not be able, if he 
 survive her, to claim such property jure mariti, but only as 
 administrator of his wife, and this equally, whether the 
 property consists of chattels in possession, or choses in 
 action, and whether or not the clioscs in action have been 
 reduced into possession : but inasmuch as, if a woman 
 married before the commencement of the Act has before 
 that date acquired a title, whether vested or contingent and 
 whether in reversion or remainder, to any property, such 
 property is not made her separate estate by section 5 of the 
 Act, it is thought convenient to reprint the substance of the 
 text as it existed in former editions. 
 
 Law as to choses in action of the ivife not affected by the Law prior to 
 
 Married 
 
 Married Women s ProjJerty Act, 1882. Women's 
 
 Property Act, 
 
 1. When the wife survives. ■^^^^* 
 
 Property falling under the description of choses in action When tlie wife 
 
 survives 
 
 of the wife are debts owing to her on bond or otherwise, 
 arrears of rent, legacies, trust funds, residuary personal estate, 
 money in the funds, and other property recoverable by action 
 or suit. 
 
 Marriaire is only a qualified gift to the husband of the General rule, 
 
 ° . . . that her c/io«cs 
 
 wife's choses in action : viz., upon condition that he reduce in action not 
 . , . , . . , , . !• • i- 1 1 reduced into 
 
 them into possession durmg its continuance ; tor it lie happen 
 
 W.E. — VOL. I. 3 b
 
 738 
 
 Of the Quantity of an Executor s Estate. [Pt. ii. Bk. iii. 
 
 possession 
 shall survive 
 to her : 
 
 Instances : 
 Bond to the 
 ■wife dum sole; . 
 
 bond tD hus- 
 band and wife 
 during cover- 
 ture : 
 
 to die before his wife, without having reduced such property 
 into possession, she, and not his executors or administrators, 
 will be entitled to it (t). 
 
 Accordingly, the general rule of law is, that clioses in 
 action, which are given to the wife, either- before or after 
 marriage, survive to her after the death of her husband, 
 provided he has not reduced them into possession : but with 
 this distinction, that as to those which come during the 
 coverture, the husband may, for them, bring an action in 
 his own name ; may disagree to the interest of the wife ; 
 and that recovering in his own name is equal to reducing 
 them into possession (k). 
 
 Thus, in Laivrence v. Beverleigh (J), a bond to the wife 
 diiiii sola was by the marriage articles to be paid to the 
 baron after twelve months, and he to purchase lands with 
 it, and settle it on himself and his wife, and the heirs of 
 their two bodies, remainder to the heirs of the baron : They 
 had issue a daughter : the husband died, and the daughter 
 died : The bond unaltered, being a chose in action, survived 
 to the wife, and was not liable at law to bond creditors, nor 
 was the interest due thereon. 
 
 So if an obligation be made during coverture to husband 
 and wife, and the husband dies, the wife shall have it by 
 survivorship, and not the executors of the husband (m). 
 
 {i) Co. Lit. 351, a. 1 Roper, 
 204. Osborn v. Morgan, 9 Hare, 
 432, 433. The rule applies to the 
 arrears of the wife's income, they 
 being choses in action : Wilkin- 
 son V. Charlesworth, 10 Beav. 324. 
 
 (k) Garforth v. Bradley, 2 Ves. 
 Sen. 676, 677. Richards v. Rich- 
 ards, 2 B. & Adol. 452. The law, 
 however, concerning a married 
 woman's property was somewhat 
 modified by stat. 33 & 34 Vict. c. 
 93. See ante, p. 660, note («). 
 
 (l) 2 Keb. 841, cited in Baden 
 V. Lord Pembroke, 2 Vern. 55. 
 
 (m) 1 Roll. Abr. 349, tit. Baron 
 and Feme (B.), pi. 1. Norton v. 
 
 Glover, Nov, 149. Coppin v. , 
 
 2 P. Wms. 497. Com. Dig. Baron 
 and Feme (F. 1). So if one is 
 bound to baron and feme in a sta- 
 tute merchant, and the baron dies, 
 the statute shall survive to the 
 feme, and she shall have execu- 
 tion, and not the executor of the 
 baron : Bro. Baron and Feme, pi. 
 24. So the feme shall have a 
 recognizance by survivorship : 1 
 Roll. Abr. 349, pi. 2.
 
 Cli. I. § III.] Chases in Action of Wife. ''"^^ 
 
 Again, if a bond is given to the wife alone during coverture, bond to wife 
 
 " ' *= . . , a'f'ne during 
 
 the bond, on the death of the husband, will survive to the coverture : 
 wife, and his executors shall not have it {n). 
 
 And it may be stated, generally, that a married woman, choses in ac- 
 
 . T 1 p 1 • tion, generally, 
 
 though mcapable of making a contract, is capable ot navmg given to wife 
 a cliose in action conferred on her, which will survive to her "^"^^^^^ '^°''*^'" 
 on the death of her husband, unless he shall have interfered 
 by doing some act to reduce it into possession (o). 
 
 If a feme sole be the payee or endorsee of a promissory bill or note 
 
 • ,11 given to feme 
 
 note or bill of exchange, and afterwards marry, it has been covert duvi 
 laid down, that by act of law it becomes the sole right and ^'^^"' • 
 property of her husband (;?), but a bill or note given to the 
 wife before marriage will survive to her, provided her husband 
 has not reduced it into possession [q). 
 
 Where a bill or note is made or endorsed to a feme covert bill or note 
 
 1 • 1 • • -I, ,-iiii/\ given to feme 
 
 during her coverture, it is said to vest m her husband (r). com-« during 
 Such a note or bill will pass by the indorsement of the coverture. 
 husband alone, during the coverture (s) : And the husband 
 may sue on it in his own name only [t) : He, however, may, 
 if he pleases, join his wife as a party in suing on the instru- 
 ment (w) ; and consequently, if he should in such case die 
 after judgment, and before execution, the judgment would 
 survive to her. But on the point whether, if he neglected to 
 sue upon it, the bill or note would go to his executors, or sur- 
 vive to his wife, the authorities were in some degree conflicting ; 
 but the more modern ones are conclusive in favour of her right 
 of survivorship, and the rule of law has been since considered 
 as fully settled, that if there be a bill or note made to a 
 
 (?i) Day V. Pargrave, cited by & W. 855. Hart v. Stephens, 6 
 
 Dampier, J., in Philli«kirk v. Q. B. 937. 
 
 riuckwell, -1 M. & S. 390, 397. 1 (r) Barlow v. Bishop, 1 East, 
 
 Boll. Abr. 345, tit. Baron and 433. See ante, p. 660, note (x). 
 
 Feme (H.), pi. 7. Checkley v. (s) Mason v. Morgan, 2 Adol. 
 
 Checkley, 2 Show. 247. & Ell. 30. 
 
 (o) Dalton v. Midland Counties (i) Burrough v. Moss, 10 B. & 
 
 Eailway Co., 13 C. B. 474, 478. C. 588. Ante, p. 738. 
 
 {}■)) Connor v. Martin, cited 3 (") Philliskirk v. Pluckwell, 2 
 
 Wils. 5. M. & S. 393. 
 
 (ry) Sherrington v. Yates, 12 M.
 
 740 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iii. 
 
 married woman during coverture, the husband might sue alone 
 upon it, or permit his wife to take an interest in it ; in which 
 latter case it stood on the same footing as if it had been made 
 to her before coverture (.r). 
 
 ^^°'^'' The rule above stated, as to the wife's title to her clioses 
 
 hi action by survivorship, may be further exemplified by the 
 instance of stock. Thus, in Scaicen v. Blunt (ij), A. was 
 entitled under the Will of C. to real estates for life, but if 
 she married, the fee simple was given to her : if she did not 
 marry, the property was given over after her death to B, the 
 wife of D., and her heirs : The estate was sold with the 
 consent of all parties interested in it, but in the conveyance 
 no trust was declared of the purchase money, which was 
 paid to A., and by her delivered to trustees, who invested 
 it in stock, and the interest of it was paid to A., who was 
 unmarried when the bill was filed : B. survived her husband 
 D., and bequeathed to A. all her personal estate : Sir William 
 Grant, M. E., determined, that the rights of the persons 
 named in the Will, in the stock, were the same as they had 
 in the land under the same Will, upon the doctrine of resulting 
 trusts ; that the stock was in the nature of a chose in action, 
 which not being reduced into possession by D., survived to 
 his wife B., and passed by her Will to A., who thereby 
 became entitled to the money absolutely (z). 
 
 Accordingly, as there has already been occasion to point 
 out (a), if a husband purchases stock in the funds, in the 
 joint names of himself and his wife, and dies, his wife is 
 entitled to it by survivorship, to the exclusion of her husband's 
 executors. 
 
 AiTears of Another strong illustration of the general principle is to 
 
 be found in the wife's right, in certain cases, to arrears of 
 rent accrued in the lifetime of her husband, in preference to 
 her husband's executors. Thus if the husband die before 
 
 (x) Howard v. Oakes, 3 Exch. (//) 7 Yes. 294. 
 
 136. Fleet v. Perrins, L. R. 4 Q. B. (z) See 1 Roper, Husb. & Wife, 
 
 500. See also notes to Saunders, 204, 2nd edit, 
 vol. i., p. 223, n. (a). (a) Ant-, p. 669. 
 
 rent.
 
 Ch. I. § III.] Choses in Action of Wife. '^^^ 
 
 tlie wife, and rent is in arrear, which was reserved to them 
 jointly on an underlease of the wife's leasehold estate, she 
 will not only, as it has before appeared (b), be entitled to the 
 accruing rent, but also to the arrears ; because they, remain- 
 ing in action, and being due in respect of the joint interest 
 of the husband and wife in the term, would, with their 
 principal, the term, survive to the wife (c). But if she were 
 not a party to the derivative lease, or if she were a party, 
 and the rent was reserved to the husband alone, then, as 
 well the arrears as the future rent will belong to the 
 executors or administrators of the husband ((7). So if a 
 lease be made by the husband and wife, of her freehold 
 estate, not conformable to the statute 32 Hen. VIII. c. 28, 
 and after his death she elects to confirm it, she is, it seems 
 entitled to the arrears of rent(e). Likewise, if a woman 
 leases her land, (for life or years,) reserving rent, and after- 
 Avards takes husband : after the death of the husband, the 
 wife shall have the arrearage of rent incurred during the 
 coverture, and not the executors of the husband (/). 
 
 So if a husband be seised of a rent-service, rent-charge, 
 or rent-seek, in the right of his wife, and the rent be in 
 arrear during the coverture, and then the husband dies, the 
 wife shall have the arrearage, and not the executors of the 
 husband (r/) ; because the principals which survived to her 
 carried also all that was due in respect of them (/i). So if 
 baron and feme are seised of a rent-service for their lives, 
 rent incurs, and afterwards the baron dies, the feme shall 
 have the arrearage during the coverture (i). 
 
 (h) See ante, p. 611, note (^j). j)!. 1. 
 
 (c) 1 Eoper, Husb. & Wife, 175, {h) Temple v. Temple, Cro. 
 2nd edit. Eliz. 791. Salwey r. Salwey, Anibl. 
 
 (d) Ante,ip. Gil. 1 Roper, Ilusb. 692. Carew f . Burgoyne, 1 Roll. 
 & Wife, 174, 2nd edit. Abr. 350. Baron and Feme (D.), 
 
 (e) 1 Roll. Abr. 350, tit. Baioii pi. 8. 1 Roper, Husband and Wife, 
 and Feme (D.), pi. 4. 201, 2nd edit. 
 
 (/) 1 Roll. Abr. 350, tit. Baron (i) 1 Roll. Aln-. 350. Baron 
 
 and Feme (D.), pi. 2, pi. 5. and Feme (D.), pi. 3. Teni]>le if. 
 
 (fl) (\>. Lift. .351, /;. 1 Roll. Temple, Cro. Eliz. 791. Dembyn 
 
 Abr. 350. B:iron ami Fciiio (I).), r. Brown, ]\[oor. 887.
 
 (42 
 
 Of the Quantity of an Executor's Estate. [Pt. ii.Bk. iii. 
 
 Tithes. 
 
 Estray. 
 
 Orjihan's 
 portion in 
 Chamber. 
 
 In these cases it should be observed, that if the rent had 
 been received during the coverture, it would have become 
 the absolute property of the husband ; Therefore, where a 
 feme leased for life, reserving rent, and took husband, and 
 during the coverture a receiver received the rent of the 
 lessee, (it does not appear by whom he was made receiver, 
 but it seems to be intended that he received it for the baron 
 and feme,) and after the baron died : it was held, that the 
 executors of the baron should have the writ of account 
 against the receiver and not the feme ; for this was a chattel 
 and duty in the baron by the receipt iji). 
 
 Where the husband was seised or possessed of tithes in 
 the right of the wife, or jointly with his wife, and the husband 
 died, it was held that the wife, and not the executors of the 
 husband, should have an action for the subtraction of such 
 tithes (I) ; but that if the tithes were once set out, and 
 severed from the nine parts, then they became a chattel vested 
 in the husband {m). 
 
 If any estray comes into the manor of the wife, and the 
 husband dies before seizure, the wife shall have it ; for that 
 the property was not in her before seizure {n). 
 
 The portion of an orphan of the Chamber of London, if 
 the husband dies without altering the property, shall go to 
 the feme (o). 
 
 Husband and 
 
 wife lost in 
 the same ship 
 
 In Hitchcock v. Bearchley (oo), a father, upon the marriage 
 of his daughter, gave a bill of exchange for 1,200L as a 
 marriage portion, and the husband agreed to settle it upon 
 the wife, within three or four years after the marriage : The 
 husband and wife, within three years after their marriage, 
 embarked in the same vessel for Corunna, and the vessel, 
 with all the crew and passengers, was lost on the voyage : 
 The question was whether the representative of the husband 
 
 (k) 1 Roll. Abr. 350, tit. Baron 
 and Feme (D.), pi. 6. 
 
 (I) roord V. Pomroy, Noy, 136. 
 (m) Anon. Ley. 70, 
 
 (n) Co. Lit. 351, 5. 
 (o) Pheasant v. Pheasant, 1 
 Chanc. Cas. 181. 
 
 (no) "West's Cas. temp. Hard. 445.
 
 Cli. I. § III.] Chose s in Action of Wife. 743 
 
 or of the wife was entitled to receive the 1,200L : Lord 
 Hardwicke, though it became unnecessary to decide the 
 point, inclined to be of opinion, that the husband having by 
 the bill of exchange the legal right to the money, and not 
 being obliged to settle it on his wife within three or four 
 years, and she dying within that time, the representatives of 
 the husband had the stronger right, and the rather, because 
 in order to make a trust arise for the wife, so as to give her 
 representatives any right to take away the legal interest, it 
 should be shown on their part that she survived ( j)). 
 
 Having thus brought forward examples of the rule that the What amounts 
 
 .„ , , . . -11 , .1111) . to reduction 
 
 wiie s ciwscs in action will not pass to her husband s executors, of the wife's 
 unless he reduced them into possession in his lifetime, it is cjio^^^ in action 
 
 ••■ ' into possession 
 
 now proposed to consider what will be such a reduction of '^y tte 
 
 husband : 
 
 them by the husband into possession, as will defeat the wife's 
 right to them by survivorship. 
 
 It must be observed, that all questions between the wife 
 and those who claim hy assignment from the husband relate 
 to the Law of Husband and Wife, and are foreign to the 
 Law of Executors and Administrators, The cases, which 
 properly belong to this Treatise, are confined to those, in 
 which the question is between the wife and the personal 
 representatives of her husband, where the latter claim to 
 exclude her right, as survivor, by some act which is asserted 
 to have reduced the choses in action into the x>osscssion of 
 the husband himself. But as the decisions, relating to the 
 validity of assignments by the husband of his wife's choses 
 in action, are illustrative of the rules established in respect 
 of the efficacy of acts amounting to reduction into his own 
 possession, some of the principal modern cases on the 
 former subject will be found collected in the note below {q). 
 
 ( 2?) As to the law respecting {q) It is now fully settled that 
 the question of survivorship in a the husband cannot, even for va- 
 case of this description, see post, luable consideration, assign or re- 
 Part III. Bk. III. Ch. II. § V. (1). lease the wife's reversionary clioses 
 Ree also the cases collected ante, in action, so as to bind her surviv- 
 p. 402, note {q). iiig : rurdew v. Jackson, 1 Russ.
 
 744 
 
 Of the Qucuttltii of an Executors Estate. [Pt. ii. Bk. in. 
 
 Mere 
 intention 
 insufficient ; 
 
 In the first place it must be remarked, that a mere 
 intention to reduce the wife's choses in action into possession 
 
 1. Honner v. Morton, 3 Russ. 05. 
 "Watson V. Dennis, 3 Russ. 90. 
 Crowder v. Stone, 3 Russ. 224. 
 Stifle V. Everitt, 1 M. & Cr. 37. 
 Rogers v. Acaster, 14 Beav. 445. 
 See also Winter v. Easum, 2 
 De G. J. & Sm. 272. And the 
 rule is the same thougli the wife 
 is ready to consent in Court : 
 Box V. Box, 1 Dru. 42. Box v. 
 Jackson, ibid. 48, coram Sugden, 
 C. of Ireland, who reviewed all 
 the previous authorities. This 
 rule has been understood to be 
 subject to the qualification that 
 if by any course of circumstances 
 the husband is afterwards in a 
 condition to reduce the assigned 
 chose in action into possession, 
 the assignment will then have 
 full eftect : on the equitable 
 principle of considering that as 
 actually done which the husband 
 has agreed to do by the assign- 
 ment : 3 Russ. 86. But it was held 
 by Shadwell, V. C, on several oc- 
 casions, that in case of an assign- 
 ment by the husband of a c]iose in 
 action of the wife, as well present 
 as reversionary, if the husband 
 dies before the chose in action has 
 actually been reduced into posses- 
 sion, the assignment will be inope- 
 rative as against the surviving 
 wife : Hutchins v. Smith, 9 Sim. 
 137. Ellison v. Elwin, 13 Sim. 
 309. Le Yasseur v. Scratton, 14 
 Sim. 116. Borton v. Borton, 16 
 Sim. 552. And these decisions have 
 been followed by a similar one of 
 Knight Bruce, V. C. : Ashby v. 
 Ashby, 1 Coll. 553. See also Mi- 
 chelmore v. Mudge, 2 Gift'. 183. 
 
 Prole V. Soady, L. R. 3 Ch. 220. 
 Where a married woman, who 
 was entitled to a trust-fund in 
 reversion, after a life-interest, had 
 had the life-interest assigned to 
 her, so that she had acquired the 
 whole absolute interest, Shad- 
 well, Y. C, ordered the fund to be 
 transferred to her husband, she 
 consenting. Hall v. Hugonin, 14 
 Sim. 595. Creed v. Perry, ihid. 
 592. But these cases were delibe- 
 rately overruled by Lord Cotten- 
 ham in Whittle v. Henning, 2 
 Phill. C. C. 731. Where a mar- 
 ried woman, to whom a rent- 
 charge for life in reversion was 
 devised to her separate use, without 
 the iiitervention of trustees, joined 
 with her husband in assigning it 
 for a valuable consideration ; it 
 was held that she was bound by 
 the assignment after the death of 
 her husband: Major r. Lansley, 2 
 Russ. & M. 355 : Seats, Avhere the 
 interest of the wife depends on the 
 contingency of her surviving her 
 husband : Batt v. Cuthbertson, 4 
 Dru. & War. 392, coram Sugden, 
 C. of Ireland. See stat. 20 & 21 
 Yict. c. 57, enabling married 
 women to dispose of reversionary 
 interests in personal estate. As 
 to the assignment by the husband 
 and wife of a legacy to her, see 
 Best V. Argles, 2 Crompt. & Mees. 
 394. As to the effect of an agree- 
 ment to assign, see Harwood v. 
 Fisher, 1 Y. & Coll. 110. As to 
 the effect of the bankruptcy of the 
 husband on his wife's choses in 
 action, see Pierce v. Thornely, 2 
 Sim. 167.
 
 Ch. I. § III.] Chases in Action of lI7/t^ 745 
 
 will be insufficient to defeat lier right to them by survivor- 
 ship. The acts to effect that purpose must be such as to 
 change the property in them, or, in other words, must be 
 something to divest the wife's right, and to make that of the 
 husband absolute, such as a judgment recovered in an action 
 commenced by him alone, or an award of execution upon a 
 judgment recovered by him and his wife, or receipt of the 
 money, or a decree in equity for payment of the money to 
 him, or to be applied to his use (/■). 
 
 Accordingly in the case of Scarydlini v. Atclieson (s), where, 
 in an action of assumpsit on a promissory note by payee 
 against maker, the defendant pleaded that, when the note was 
 made, the plaintiff was the wife of B., and that, after the 
 making, and while she was his wife, he elected to have and 
 take the said note in his marital right, and then cause the 
 plaintiff to endorse, and she, by his authority, did then endorse 
 the note to B., and B. then delivered it so endorsed to F. ; 
 that afterwards, and after the note was due, and before action 
 brought, B. died : and that afterwards and before action 
 brought, the note came to the plaintiff's possession by delivery 
 from F. ; it was held, on special demurrer, that the plea was 
 bad, because it did not clearly show such a reduction of the 
 note into possession by the husband as disentitled the wife to 
 sue upon it after his death. 
 
 So where a husband agreed that a legacy given to his wife 
 should be set off against a sum of the same amount which 
 he owed to the testator on his promissory note ; and he and 
 his wife signed a receipt for the legacy, but the executors 
 did not deliver up the note to him ; it was held, that she 
 surviving him was entitled to be paid the legacy (t). 
 
 Again, a mere appropriation of the fund will be in- mc-e 
 sufficient. Thus it was held, that a legacy to a married «j,'p;'oP!."'ation 
 
 ° "^ ot the fund 
 
 woman was not sufficiently reduced into possession, so as to insufficient : 
 
 (r) 1 Roper, Ilusb. & Wife, 208, 369. 
 
 2nd edition. See also Aitcliison (s) 7 Q. B. 864. 
 
 V. Dixon, L. R. 10 Eq. 589. (f) Harrison v. Andrew?, 13 Rim. 
 
 Scrntton v. Tattillo, L. R. 19 Kq. 59.'}.
 
 746 Oftlie Quantitij of an Executor's Estate. [Pt. ii. Bk. iii. 
 
 prevent her right by survivorship upon her husband's death, 
 by the appropriation by the executrix of a mortgage to the 
 same amount (»). 
 receipt by the It is clear, that if the husband receive the money, legacy, 
 
 husband : . i • i • , . . „ ■ p ^ ^ ^ 
 
 or duty which was owmg to his wife, or if he alone, or he 
 and his wife authorise a person to receive it who actually 
 obtains it, either of those receipts will change the wife's 
 interest in the property, and be a reduction of the cho$e in 
 action into the possession of her husband, divested of her 
 title to it upon surviving him : and his executors may 
 maintain an action for the money so received by the person 
 so authorized (j). 
 
 Thus in Dodsivell v. Eaiie (i/), A. the wife of B. was 
 entitled to 250^., under the Will of C, expectant upon the 
 death of D. : The executor of C, upon B.'s application, and 
 with the wife's consent, paid the money to B., he under- 
 taking to pay to D. the interest during her life : The vdie, 
 having survived D., who survived her husband, claimed by 
 bill in equity the 250/. against her husband's executors ; 
 but the bill was dismissed (z). 
 
 Accordingly it has been held, that the husband may 
 sufficiently reduce a mortgage debt due to the wife into 
 possession by receiving the mortgage money, notwithstanding 
 
 (u) Blount V. Best] and, 5 Yes. where the money was under the 
 
 515. control of the Court of Chancery, 
 
 (x) 1 Koper, Hnsb. & Wife, which, without any direction or 
 
 220, 2nd edition. See cmte, p. release or receipt from the hus- 
 
 742. Where money of a wife was, band, ordered the money to be 
 
 by the direction of lier husband, paid to the trustee of a settle- 
 
 who had the control of it, paid to ment approved of by the Court ; 
 
 the trustees of a post-nuptial set- and it was held that the money, 
 
 tlement, which was not binding on though held by the trustees, to 
 
 the wife, it was held that her right some extent, for the husband, could 
 
 by survivorship was destroyed, the not be considered as reduced into 
 
 property having by these means possession beyond the interest 
 
 been reduced into possession : given him by the settlement. 
 
 Hamilton v. Mills, 29 Beav. 193. (y) 12 Ves. 473. 
 
 This case does not conflict with (z) But see the cases, ante, p. 
 
 Pringle v. Pringle, 22 Beav. 631, 743, note {q).
 
 Ch. I. § III.] Glioses in Action of Wife. 747 
 
 he dies before the mortgage estate has been re-couveyed ; 
 and in such case the surviving wife will be a trustee of the 
 legal estate for the mortgagor {a). Again, if the husband 
 releases an annuity secured to the wife by bond, this will 
 bind her ; for as he could release the bond, so he may the 
 annuity (6). 
 
 It may be useful in this place to adduce some authorities, what does not 
 
 1 1 -iiiTiiT amount to a 
 
 as to what acts do not amount to a receipt by the husband receipt by the 
 or his appointee, so as to defeat the wife's title upon "^^^^°*l = 
 surviving him. 
 
 A transfer of the wife's stock into the husband's own 
 name will, it should seem, amount to such a receipt ; because 
 it is an act vesting the whole j)roperty in him (c) : But a 
 transfer of stock into the wife's name, to which she became 
 entitled during coverture, shall not be considered as a pay- 
 ment or transfer to the husband, so as to defeat her right 
 by survivorship {d). 
 
 In Ryland v. Smith (e), a married woman being entitled 
 under a Will to stock and to cash, forming part of a residue, 
 the husband wrote to one of the executors, requesting that 
 the stock should be transferred into the names of certain 
 trustees for the wife's separate use, and that the cash should 
 be paid to himself : These requests were complied with : 
 The husband employed part of the cash in increasing the 
 amount of the stock : He afterwards became bankrupt, and 
 died : It was held by Sir C. Pepys, M.K,, that the stock 
 transferred by the executors was not reduced into possession 
 by the husband, and therefore belonged to the wife by sur- 
 vivorship ; but that the assignees under the bankruptcy were 
 entitled to the increase made by the husband. 
 
 On the other hand, in Burnhaiii v. Bennett (/), by a post- 
 nuptial settlement, reciting that a sum of stock, originally 
 standing in the name of the wife, had been transferred into 
 
 (a) Rees v. Keith, 11 Sim. 388. (r?) Wildman v. Wildman, 9 Ves. 
 
 (6) Hore v. Becher, 12 Sim. 46.5. 174. 
 
 (c) 1 Roper, Husb. & Wife, 221, (e) 1 Mylne & Cra. 5,3. 
 
 2n(l edition. (/) 2 Coll. 254.
 
 '48 Of the Quantity of an Ejcecutoi-'s Estate. [Pt. ii. Bk. in. 
 
 the names of trustees, and that it had been agreed that a 
 promissory note of 500/., given to the wife by her brother, 
 should be cancelled, and that he should give his bond to the 
 trustees for the amount, it was witnessed, agreed and declared 
 that the trustees should stand possessed of these funds, in 
 trust to pay the interest and dividends to the husband for 
 life ; then to the wife for life ; and, upon the death of the 
 survivor, to transfer the funds to the children of the marriage, 
 and, in case there should be no children, then to such 
 persons as the wife should by deed or Will, during and 
 notwithstanding her coverture, appoint, and in default of 
 such appointment, to the husband, his executors, adminis- 
 trators, and assigns : There were no children of the marriage : 
 The wife survived the husband : And it was held by Knight- 
 Bruce, V.-C, that in the event of the death of the wife 
 without making a valid appointment, the fund would belong 
 to the husband's personal representative, as having been 
 reduced into the husband's possession by the settlement : 
 His Honour agreed, that in the case of a wife having a cJwse 
 i)i action, whether legal or equitable, the mere circumstance 
 of the legal title being changed does not, in general, aflect 
 her ; but considered, in the present case, that the whole of 
 the circumstances formed one entire transaction, as binding 
 and effectual as if the husband had received the money or 
 stock himself: and the learned Judge said, that he agreed 
 with the substantial result of Ilylnnd v. Smith (g), and Wall 
 V. TomUnson (//) ; for, as he understood them, the property 
 had been made to change hands, with a view to an intended 
 settlement ; in each case the change was such, the circum- 
 stances were such, that if the settlement were treated as 
 effectual the wife was entitled ; but if the settlement were not 
 effectual, then there was no trust, and nothing but the legal 
 title changed ; and, therefore in that view, the wife was entitled. 
 Again, in Hansen v. Miller (i), a married woman, an infant, 
 having become entitled to 900/. under the trusts of her 
 
 (g) See sv2)ra, p. 747. (/() 16 Yes. 413. 
 
 (i) 14 Sim. 22.
 
 Cli. I. § III.] Clioses in Action of Wife. '^"^''^ 
 
 mother's settlement, the trustees paid 400Z., part of it, to 
 her husband, upon the understanding that he should settle 
 the remaining 500L for the benefit of his wife in the manner 
 after mentioned : Accordingly the trustees paid the 500L to 
 M. and N., the husband's nominees ; and, by a deed made 
 between the husband and wife and M. and N., it was 
 declared that M. and N. should pay the income of the 500L 
 to the wife, for her separate use for life, and that after her 
 death, the principal should remain upon such trusts as she 
 should appoint by Will, and in default of appointment, in 
 trust for her next of kin, according to the Statutes of Dis- 
 tribution : The wife survived her husband : And it was held 
 by Shadwell, V.-C, that the settlement was binding on her; 
 and that, under it, she was entitled merely to the income of 
 the 500L for life, and not to the principal absolutely. 
 
 Where a. feme sole was entitled to a sum of money charged 
 on her brother's estate, who, in a settlement made on the 
 occasion of her marriage, covenanted to pay it to her 
 husband, and the husband received the interest, but died 
 without having got in the principal, it was held to vest in 
 the wife by survivorship (k). In the case of Nash v. Nash {I), 
 the receipt by the husband of part of the principal on the 
 promissory note made to the wife, and of the interest upon 
 the remainder, was held by Sir Thomas Plumer, V.-C, to be 
 no reduction into possession of such remainder, so as to bar 
 the wife's right by survivorship {m). So also where money 
 was left in the hands of trustees for the benefit of the wife, 
 and her husband died, she was declared to be entitled to it by 
 survivorship, her husband having made no disposition of it 
 during his life (w). 
 
 In Sliuttleworth v. Greaves (o), the wife of F. Shuttleworth 
 was the only child of a person who was entitled to certain 
 shares in the Nottingham Canal, which, upon that person's 
 
 (/c) Howman v. Corie, 2 Vern. G Q. B. 937. Accord. 
 
 190. («) Twisden r. Wise, 1 Vcrn. 
 
 (0 2 MikU. 1:53. 1(51. 
 
 (m) See also Hart v. Stephens, (0) 4 ]\Iylnc & Cr. 35.
 
 750 
 
 Of the Quantity of cm Executor s Estate. [Pt. ii. Bk. iii. 
 
 husband's 
 receipt as 
 trustee : 
 
 effect of 
 proceedings in 
 law and equity 
 on the wife's 
 choses in 
 action : 
 if the wife be 
 joined in an 
 action, the 
 judgment may- 
 survive : secu-i, 
 if the husband 
 sue alone : 
 
 death, were transferred into the names of " F. Shuttle worth 
 and wife," the wife having been her father's administratrix : 
 F. Shuttleworth was ever afterwards, until his death, treated 
 by the Canal Company as the proprietor of the shares, and 
 received the dividends upon them, and was elected to be and 
 acted as a member of a committee, which, by the canal Act, 
 was required to consist of proprietors of two or more shares : 
 Lord Cottenham said that it was not necessary to express 
 any opinion on the point, whether the transfer of the shares 
 into the names of the husband and wife was a reduction into 
 possession by the husband ; because if such transfer did 
 amount to a reduction into possession, so as to defeat the 
 title of the wife surviving, a new estate was thereby created, 
 under which she, as survivor of the two, would be entitled (j)). 
 
 The husband's receipt or possession of his wife's cJtoscs in 
 act 1071 must be in the character of husband in order to 
 defeat his wife's title by survivorship. Thus, in a case (q) 
 where a trustee and executor married one of the residuary 
 legatees named in the Will, it was determined that his 
 possession of the testator's personal estate was to be con- 
 sidered as that of trustee and executor, he having alone 
 proved : so that his wife's share of the residue could not be 
 regarded as sufficiently reduced into possession to prevent 
 its surviving to her upon his death (/•). 
 
 It remains to consider the effect of proceedings at Law 
 and in Equity, and submissions to arbitration, as to vesting 
 absolutely in the husband the wife's choses in action. 
 
 The naming or not naming the wife in an action is 
 attended with material consequences in relation to the 
 present subject ; for if she be a party, and the husband die 
 after judgment, and before execution sued out, the judg- 
 ment will survive to her, and she will be entitled to proceed 
 
 (p) See also Low v. Carter, 1 of himself and wife. 
 
 Beav. 426, and ante, p. 669, as to (5) Baker i-. Hall, 12 Ves. 497. 
 
 the effect of an investment in stock (r) See also Wall r. Tomlinson, 
 
 by the husband in the joint names 16 Yes. 413.
 
 Ch. I. § III.] Choses in Action of Wife. 751 
 
 upon such judgment (s). But if the action be brought by 
 the husband alone, and he die after judgment, his represen- 
 tatives, and not the wife, will be entitled to the benefit of 
 it {t). Costs ordered by rule of Court to be paid to the 
 husband and wife have been held to survive to the wife {ii). 
 
 If the husband alone prove the wife's debt under a effect of proof 
 
 . . under com- 
 
 commission of bankrupt against the debtor, it seems that mission of 
 her right by survivorship is not defeated {.x), bankrupt : 
 
 Decrees in equity so far resemble judgments at law in decrees and 
 
 orders in 
 
 this respect, that until the money be ordered to be paid, or equity : 
 declared to belong to the husband, the wife's rights will 
 remain undisturbed ; and as a joint judgment will survive to 
 the wife if her husband die before execution is awarded, so 
 will a joint decree until an order be obtained for payment, 
 or declaring the money to belong to the husband {y). An 
 order for a payment of a sum of money to the husband, in 
 right of his wife, changes the property, and vests it in him 
 freed from his wife's right by survivorship {z). 
 
 In another case the husband having assigned a fund in 
 Court belonging to the wife, an order was made, on her 
 examination and consent, that part of it should be paid to 
 the assignee, and that the interest of the remainder should 
 be paid to her for her life for her separate use, with liberty 
 for any persons entitled to apply at her death : This was 
 held not to aflect her right of survivorship, as to the 
 
 (s) As to the cases in which the (;/) Murray v. Lord Elibank, 10 
 
 husband and wife must join, and Ves. 91. 1 Koper, Husb. & Wife, 
 
 those in which he may sue alone, 216, 217, 2nd edit. See also Adams 
 
 or join with the wife, at his option, v. Lavender, 1 M'Clel. & Y. 41. 
 
 see Com. Dig. Baron and Feme Ilore v. Woulfe, 2 Ball & B. 424. 
 
 (v.) (x.). Nanny v. Martin, 1 Eq. Cas. Abr. 
 
 (0 Eussell's case, Noy, 70. Gar- 68. Philips v. Anglesea, 22 Nov. 
 
 forth V. Bradley, 2 Ves. Sen. 676,, 1738, MS. Bond v. Simmons, 3 
 
 677, in Lord Hardwicke's judg- Atk. 20. Macaulay v. Philips, 4 
 
 ment. 1 Roper, Husb. & Wife, Ves. 15. Baldwin v. Baldwin, 5 
 
 212, 2nd edit. De G. & Sm. 319. 
 
 {u) Tilt V. Bartlett, Hannier, {z) Ileygale /'. Annesley, 3 Bro. 
 
 104. C. C. 362. 
 
 {x) See also Anon. 2 Vern. 707
 
 752 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk. in. 
 
 EtTect of 
 arbitration on 
 the wife's 
 choscs in 
 action : 
 
 agreements 
 pendente lite : 
 
 remainder of the fand ; and on her death, she having sur- 
 vived her husband, a transfer to her administrator was 
 directed (a). 
 
 There has ah-eady been occasion to observe, that an award 
 in favour of the husband in regard to the wife's leasehold 
 interest will alter the property, and vest the term in him (h) : 
 and it has been so decided in regard to her other chattels (c). 
 
 However, a Court of Equity will not permit agreements 
 entered into between a married woman, or her friends act- 
 ing for her and her husband, jtcndente lite, to be obligatory 
 upon her ; so that any arrangement which, pending a suit, 
 may be so made, by which it is agreed that he, upon certain 
 terms, shall have the residue of her property, will not, with- 
 out the sanction of the Court, bind her : Notwithstanding 
 therefore, such an agreement, if the title of the husband's 
 representatives rest solely upon it, his wife's right by survi- 
 vorship will take place {d). 
 
 When execu- 
 tors are en- 
 titled to the 
 wife's chases 
 ■in. action by 
 reason of an 
 a?(<enupt:al 
 settlement. 
 
 The executors of the husband may be entitled to the 
 exclusion of the widow to her clioses in action, although not 
 reduced by him into possession, by reason of an antenuptial 
 settlement on the wife ; for the husband may entitle himself 
 to all his intended wife's personal estate, whether in jjosses- 
 sion or in action, or which she may afterwards acquire, by 
 becoming a purchaser of it previously to and in contemplation 
 of the marriage. 
 
 But a mere settlement will not entitle the husband or his 
 executors to the whole of the wife's fortune. There must 
 be an agreement for the purpose either expressed or implied : 
 for if the stipulation be for a part only of her property, that 
 necessarily excludes the residue ; or if the agreement extend 
 
 (a) Johnson v. Johnson, 1 Jac. 
 & Walk. 472. 1 Roper, Husb. & 
 Wife, 218, 2n(l edition. See also 
 Ee Jenkins, 5 Euss. 183. 
 
 (6) Ante, p. G09. 
 
 (c) 1 Roper, Husb. & Wife, 219, 
 
 2nd edition. Oglander i: Baston, 
 1 Vern. 396. 
 
 {(l) 1 Roper, Husb. & Wife, 21.9, 
 2nd edit. Macaulay r. Philips, 4 
 Ves. 15.
 
 Cli. I. § III.] Glioses m Action of Wife. 753 
 
 to the whole of the fortune she was tJien entitled to, her hus- 
 band or his executors will not be entitled to any personal 
 estate which may accrue to her during the marriage : And 
 it is presumed, that adequacy or inadequacy of the provision 
 is a consideration so indeterminate and capricious, that the 
 Court will not take that circumstance into consideration, 
 when nothing appears from the settlement of any agreement 
 or contract that the husband should, in consideration of it, 
 be the purchaser of, or entitled to the whole of his wife's pro- 
 perty, or what she may in future become entitled to during 
 the marriage (e). 
 
 In Druce v. Denison (/), Lord Eldon said, that, accord- 
 ing to the modern cases, it is established, that the settlement, 
 to be the purchase of the wife's fortune, must either express 
 it to be for that consideration, or the contents of the settle- 
 ment altogether must import that, and plainly import it as 
 much as if it were expressed : that such was the result of the 
 cases upon the subject, and that it was not worth while to 
 consider in what respect the older cases were unsatisfactory, 
 involving inquiries not very easy to execute. 
 
 The other principal decisions on this subject will be found 
 collected in the note below (g) : And the deductions drawn 
 from them by an able modern writer (h) are as follows : — 
 1. That a settlement, made before marriage in consideration 
 of the wife's fortune, without saying more, entitles the 
 husband to all her then personal property, and not to such 
 which afterwards accrues to her. 2. That if a part of her 
 fortune only appear to be stipulated for, the residue she 
 then has, or what may afterwards accrue to her, will not 
 
 (e) 1 Koper, Ilusb. & Wife, 298, 63. Garforth v. Bradley, 2 Ves. 
 
 2nd edit. Sen. 675. Burden v. Dean, 2 Ves, 
 
 (/) 6 Ves. 395. Jun. 607. Elibauk v. Montolieii, 
 
 {g) Heaton v. Hassell, 4 Vin. 5 Ves. 737. Mitford v. Mitford, 
 
 Abr., p. 40, tit. Baron and Feme, 9 Ves. 87. Carr v. Taylor, 10 Ves. 
 
 (D.) pi. 11, in margine. Adams 574. 
 
 r. Cole, Cas. temp. Talk 108, (/t) 1 Roper, Hnsb. & Wife, 298, 
 
 Cleland v. Cleland, Free. Clianc. 2nd edit. 
 
 W.E. — VOL. I. 3 C
 
 754 
 
 Of the Quantity of an Executors Estate. [Pt. ii. Bk.iii. 
 
 Executors of 
 husband not 
 entitled to 
 ■«-ife's choses 
 in action by 
 reason of a 
 postnuptial 
 settlement. 
 
 belong to the husband. 3. But when it appears from the 
 settlement, that it was the agreement between the parties 
 that he should not only have his wife's then present, but all 
 her subsequently acquired personal estate, he will in such cases 
 be entitled to the whole under the marriage contract. And 4. 
 That in instances where any of the wife's choses in action are 
 not purchased by the husband by settlement, they will be 
 subject to her rights of survivorship, which have been before 
 considered. 
 
 It has just been stated, that an actual agreement or con- 
 tract is necessary to give to the husband's executors his 
 wife's choses in action, in the event of her surviving him, in 
 consideration of the provision made by him for her : and it 
 seems a necessary consequence, that a settlement made after 
 the marriage by the husband upon his wife, even upon an 
 accession of fortune to her (not given to her separate use 
 and disposition) will not constitute the husband a purchaser 
 of such additional fortune, but the wife's title by survivor- 
 ship will prevail ; because as a. feme covert she was incapable 
 of contract, and especially of contract with her husband (i). 
 
 And it should seem, that the sanction of the wife's father, 
 guardian or trustee, could not give any additional effect to 
 such a settlement, as against her, in the event of her sur- 
 viving (A). 
 
 2. Rights of 
 administrator 
 of wife to her 
 choses in 
 action, when 
 her husband 
 survives. 
 
 2. It remains to consider, secondly, the rights of the ad- 
 ministrator of the wife to her choses in action, when the 
 husband survives. If the husband takes out letters of ad- 
 ministration to her, (to which, as it has already appeared (/), 
 he has exclusively the right,) he will be entitled, as such 
 administrator, to all her personal estate which continued in 
 action or unrecovered at her death. Therefore, where it was 
 stipulated in marriage articles, that money in the funds, the 
 
 (i) 1 Roper, Husb. & Wife, 303, 
 2nd edit. Lanoy v. Athol, 2 Atk. 
 448. See Sykes v. Meynal, 1 Dick. 
 368 contra. 
 
 (/.) Stamper v. Barker, 5 ^ladd. 
 157. 
 (l) Ante, pp. 346, 347.
 
 Cb. I. § HI.] Choses in Action of Wife. 755 
 
 property of tlie intended wife, should he for her sole and 
 separate use, as if she were sole and unmarried, and the 
 marriage took effect, and the wife died in the husband's life- 
 time without issue, and without having made any appoint- 
 meat of her separate property ; it was held by Sir John 
 Leach, M. R., that the husband was entitled to it, as her 
 administrator, and not her next of kin {m). 
 
 If the husband should die before he has obtained a grant 
 of the administration, or after having taken out letters, 
 before all her property in action has been reduced into 
 possession, such property cannot be recovered by his repre- 
 sentatives : but administration must be taken out to the 
 wife for that purpose, either generally, or de bonis non, as 
 the case may require (w) : Such administrator, however, will 
 be considered, in equity, as a trustee of what he receives for 
 the personal representatives of the husband (o). 
 
 Where there was a fund in the Court of Chancery, stand- 
 ing to the separate account of a married woman, whose 
 husband survived her, and died before administering to her 
 estate, it was held by Lord Brougham (reversing the decision 
 of Sir John Leach), that the fund ought to be paid out to the 
 wife's legal personal representative, without also taking out 
 administration to the estate of the husband {p). 
 
 (m) Proudley v. Fielder, 2 M. nedy, 10 Sim. 254. See also Bird 
 & K. 57. But where a husband v. Peagrum, 13 C. B. 650. 
 and wife lived separate from each {n) Betts v. Kimjjton, 2 B. & 
 other, and at her death she was Adol. 273. Att.-Gen. v. Parting- 
 possessed of cash and bank-notes, ton, 3 Hurlst. & C. 193, ante, p. 
 arisen from property settled to her 351. In the goods of Harding, 
 separate use, it was held by Sir L. L. K. 2 P. & D. 394. 
 Shad well, V.-C, that the husband (o) Cart v. Rees, cited in Squib 
 Avas entitled to them in his marital v. Wyn, 1 P. Wms. 381. Hum- 
 right ; for tliat as she had not dis- phrey v. Bullen, 1 Atk. 458. S. C. 
 posed of them, as she might have 11 Vin. Abr. 86. Elliott v. Collier, 
 done, by deed or Will, the quality 3 Atk. 526. See ante, jjp. 349, 
 of separate property ceased at her 350, as to the person entitled to 
 death, and her husband was en- the grant of such an administra- 
 titled jure mariti and need not tion. 
 
 become her administrator in order (j)) Outteridge v. Stilwell, 1 M. 
 
 to entitle himself : Molony v. Ken- & K. 486. Ante, p. 351. How- 
 
 3 2
 
 756 Of the Qiiantiti) of an Executor's Estate. [Pt. ii. Bk. iii. 
 
 It is obvious, that iu all the instances above stated; where 
 the wife's right by survivorship, in case of her outliving her 
 — husband, would be barred by his having reduced her choses 
 
 in action into possession in his lifetime, there, in the event 
 of his surviving her, he may bring an action respecting such 
 choses in action in his individual character, and must not 
 sue as the administrator of his wife. 
 
 Thus where on a bond to the wife, cluin sola, the husband 
 gives a letter to another to receive the money, who receives 
 it, and then the wife dies, the husband shall bring an action 
 to recover it from the receiver, individually, and not as his 
 wife's administrator {5). So where a legacy was left to a 
 feme sole, who afterwards married, and then the husband 
 and wife gave a letter of attorney to another to receive the 
 money, who received it, and afterwards the wife died, and 
 then the husband died ; it was held that the action was well 
 brought by the husband's administrator : because the receipt 
 changed the property to the husband alone (r). 
 
 If the wife be a mortgagee in fee, the husband surviving 
 her will be entitled to the mortgage, as her administrator, 
 and the heir will be a trustee for him. This was admitted 
 in Turner v. Crane (s), where, however, the heir was held 
 
 ever, in Loy v. Duckett, 1 Cr, & L. K 4 H. L. 100. Ante, p. 351. 
 
 Ph. 312, Lord Cottenham said that (q) Huntley v. Griffith, Moor. 
 
 Sir J. Leach's view was more cor- 452. So, Fry, J., following this 
 
 rect than Lord Brougham's ; be- case, held the receipt by an agent 
 
 cause it would follow from Lord appointed by the husband and 
 
 Brougham's, that even where an wife of money forming part of the 
 
 executor had assented to a legacy, estate of an intestate, of which the 
 
 he might still sue for the fund, out wife was administratrix, amounted 
 
 of which the legacy was to be paid, to a reduction into possession by 
 
 on the strength of his legal title, the husband of the wife's distribu- 
 
 without making the legatee a tive share of the money : Re 
 
 party ; which would, in fact, be Barber, 11 C. D. 442. See also 
 
 administering the fund in the ab- Fleet r. Perrins, L. R. 4 Q. B, 508. 
 
 sence of the owner. See also Pen- (;•) Ibid, 
 
 nington v. Buckley, 6 Hare, 459, (s) 1 Vern. 170. 1 Roper, Husb. 
 
 by Wigram, V.-C. Att.-Gen. v. & Wife, 205, 2nd edit. 
 Partington, 3 Hurlst. & C. 206,
 
 Cli, I. § III.] Choses in Action of Wife. 757 
 
 entitled, on the ground that there was no covenant for pay- 
 ment, a distinction which does not now prevail (t). 
 
 In a case where the wife and her second husband de- 
 mised lands, which she held in dower from her first husband, 
 for a term of years, reserving a rent; the rent became in 
 arrear, and the wife died ; her second husband was held 
 entitled to the arrears, and not the heir of the first husband, 
 who could not claim them, since he was a stranger to the 
 lease (u) . 
 
 It must be observed, that, at common law, if a feme sole 
 was seised of a rent service, charge, or seek, in fee, fee tail, 
 or for life, which was behind and unpaid; and she took 
 husband, and the rent was behind again, and then the wife 
 died; the husband should not have the arrears grown due 
 before the marriage, but for those become due during the 
 coverture, the husband might have had an action of debt {x). 
 But by the statute 82 Hen. VIII. c. 37, s. 3, if the husband 
 survive the wife, he shall have the arrears incurred, as well 
 before the marriage, as after {y). 
 
 So if a husband be seised of an advowson in right of 
 his wife, and the church become void during the coverture, 
 the wife shall have quare impedit, if she survive him, and 
 the husband, if he survive her (z) ; even though he, by 
 reason of her having had no issue, be not tenant by the 
 curtesy (a) : but if the church fell void before the cover- 
 ture, the husband cannot bring a quare impedit if he survive 
 her (b). 
 
 In these cases, when it is said, that the husband cannot 
 at common law recover the arrears of rent due before the 
 marriage, and that he cannot now have a quare iinjyedit for 
 a presentation which fell vacant before coverture, it must 
 
 (t) See ante, p. 602. the wife : Anon. Owen, 3. 
 
 (tt) 2 Bro. 204, b. tit. Rents, pi. (y) Co. Lit. 351, b. 
 
 10. 1 Roper, Husb. & Wife, 206, ('i) Co. Lit. 351, b. 
 
 2nd edit. («) Wats. C. L. 71, 72. 
 
 (a;) Co, Lit. 1G2, h. 351, h. So {h) Co. Lit. 351, k 
 
 fur till' arrears of ;in aimnilvto
 
 758 Oftlie Quantity of an Eaiecntor's Estate. [Pt, ii. Bk. iii. 
 
 be understood (it is submitted), that he cannot claim them 
 as a marital right in his individual character : because it 
 seems clear, that, as her administrator, he might at common 
 law have recovered the rent (as soon as the estate of freehold 
 was determined), in the former case, and may now maintain 
 a quare inipecUt in the latter. The reason given by Lord 
 Coke against the right of the husband, is, that the arrears 
 of rent and the void church were merely in action before 
 the marriage (c) : Hence it should follow, that, like all other 
 cJioses in action not reduced into possession, though they do 
 not belong to the surviving husband jure mariti, they will go 
 to him as his wife's administrator (r?). 
 
 If, iireviously to the marriage, the wife obtained a judg- 
 ment and then she and her husband sue out a scire facias 
 and have an award of execution, but, before execution, the 
 wife dies ; the husband shall not proceed as her adminis- 
 trator, but may sue out a new scire facias by survivorship 
 in his individual character {e). So in the case of Forbes 
 V. PJiipps (/), there was a decree of a Court of Equity, that 
 one-sixth share of a residue, to which the wife was entitled, 
 should be paid to her and her husband: The wife died before 
 the money was received, and her husband being the sur- 
 vivor, it was determined that he should take the money 
 under the decree by survivorship, and not as his wife's admi- 
 nistrator, so as to render the fund liable in his hands to 
 her debts. 
 
 Husband not A singular case arose as to the husband's rights, as sur- 
 
 entitleil where . ,..„, . , ... . 
 
 wife died vivor, to his Wife s reversiouary choscs in action. A woman 
 
 joint-tenant of ^^,-^q ^^,^g entitled to a pecuniary legacy, as one of several 
 
 chose inaction, joint-tenauts in reversion after the death of a tenant for life 
 
 of the fund, married, and then predeceased the tenant 
 
 for life : The question was, whether, on the death of 
 
 (c) Co. Lit. 351, b. iv. as to proceedings in lieu of 
 
 {d) Att.-Gen. v. Partington, 3 scire facias. 
 
 Hurlst. & C. 205. Accord. (/) 1 Eden, Rep. 502. See also 
 
 (e) Woodyer v. Gresham, 1 Salk. Hore ?•. AYoulfe, 2 Ball & Beat. 
 
 IK). See poM, Pt. IT. Bk. iii. Ch. 424.
 
 Cli. I. § III.] Glioses in Action of Wije. 759 
 
 the tenant for life, the wife's share should go to the surviv- 
 ing joint-tenants or to her husband: and Turner, V.-C, 
 decided in favour of the joint-tenants : His Honour held that, 
 as the wife's interest was reversionary, the title of the 
 husband could not arise till after her death in his lifetime ; 
 and that the case, therefore, did not fall within the principle 
 of the rule as to chattels personal, but within that as to 
 chattels real; and according to the latter rule {g), as the pro- 
 perty did not vest in the husband, the joint-tenancy was not 
 severed by the marriage, but continued till the death of his 
 wife ; and then the elder title of the other joint-tenants by 
 survivorship prevailed (//). 
 
 {(j) See ante, p. 612, note {u). sionaiy if it had not been reduced 
 
 (Ji) In the Trusts of Barton's into jDossession by the husband. 
 
 Will, 10 Hare, 12. Armstrong v. See Re Butler, 38 C. D. 286, dis- 
 
 Armstrong, L. R. 7 Eq. 518. And approving Baillie v. Treharne, 17 
 
 the same would be the case though C. D. 388. 
 
 the chose in action were not rever-
 
 760 
 
 Actions for 
 torts done in 
 the executor's 
 time. 
 
 CHAPTER THE SECOND. 
 
 TO WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINISTRATOR 
 IS ENTITLED, WHERE THE ACTION ACCRUES AFTER THE DEATH 
 OF THE TESTATOR OR INTESTATE. 
 
 It is now proposed to consider in ^vbat cases an executor or 
 administrator may sue, where the cause of action accrues after 
 the decease of the testator or intestate. 
 
 Upon the death of the testator or intestate, if any injury is 
 afterwards done to his goods and chattels, the executor or 
 administrator may bring an action for damages for the tort : 
 And, under such circumstances, he has his option, either to 
 sue in his representative capacity, and declare as executor or 
 administrator, or to bring the action in his own name, and in 
 his individual character. 
 
 This right of action, and option as to the form in which 
 it shall be brought, exists in the executor or administrator, 
 whether he has ever had actual possession of the property 
 or not. Mr. Justice Buller, indeed, in Cockerill v. Kynas- 
 ton (a), laid down, that if the goods, which were the subject 
 of the action, were never in the actual possession of the 
 executor or administrator, it is absolutely necessary for him 
 to declare in that character : But that opinion has been 
 since frequently overruled (b) : For it is a rule of law, that 
 the property of personal chattels draws to it the possession, 
 so that the owner may bring either trespass or trover at his 
 election against any stranger who takes them away (e) : 
 Now on the death of the testator or intestate, his executors 
 or administrators are, in point of law, the owners of the 
 goods which belonged to him ; and consequently whether in 
 actual possession of them, or not, before the tort committed. 
 
 (a) 4 T. E. 277, 281. 
 (6) Bollard v. Spencer, 7 T. E. 
 .358, Hollis r. Smith, 10 East, 294. 
 
 Grimstead r. Shirley, 2 Taunt. 117. 
 (c) Bro. Trespass, .303. Hudson 
 r. Hudson, Latch. 214.
 
 Ch. II.] Actions accvmng to the Executor. 761 
 
 they may declare, as any other person may, upon their own 
 property, when wrongfully damaged by another ((/). 
 
 Therefore executors or administrators may maintain tres- 
 pass for taking away the goods of the testator or intestate 
 after his death, either in their own name, or in their repre- 
 sentative character, whether they were ever actually pos- 
 sessed of them or not (e). And if they sue as executors or 
 administrators, they may either declare that the deceased was 
 possessed of the goods and the trespass committed after his 
 death to the damage of the executors or administrators (/) ; 
 or as the property in the goods draws to it the possession in 
 law, they may declare on their own possession as executors {g). 
 So with respect to the action of trover, if the goods of the 
 testator are taken and converted after his death, and before 
 the executor has obtained possession of them, he may either 
 bring an action in his own name, without alleging himself 
 executor {li), or he may sue as executor, and declare either 
 that the testator was possessed of the goods and the defendant 
 after his death converted them (i), or he may allege that he 
 himself was possessed as executor, and the defendant con- 
 verted them (A:). 
 
 {d) Hollis v. Smith, 10 East, longing thereto, died before the day 
 
 295. of redemption : After his death, 
 
 (e) Adams v. Cheverel, Cro. Jac. the mortgagor, who had remained 
 
 113. in possession, made default in the 
 
 (/) Cro. Jac. 113. payment of the mortgage debt, 
 
 {g) 2 Saimd. 47 n., note to "Wil- but was not dispossessed by the 
 
 braham v. Snow. administrator of the mortgagee : 
 
 {h) Hole V. King, Com. Rep. The mortgagor subsequently de- 
 
 163. Jenkins v. Plombe, 6 Mod. mised the mortgaged property to 
 
 181. a third party, who took possession 
 
 (i) Hudson v. Hudson, Latch. under such demise, and put his 
 
 214. name on the barges : During such 
 
 (/.) Anon. Comberb. 451. 2 possession, the barges, together 
 
 Saund. 47 «., note to Wilbraham with a quantity of coal, the pro- 
 
 %: Snow. Thus, in Fraser v. The duce of the colliery, were illegally 
 
 Swansea Canal Company, 1 Adol. seized by the defendants for tolls 
 
 & Ell. 354, the mortgagee of the due from the mortgagor's lessee : 
 
 lease of a colliery, together witli And it was held, that the plaintiff, 
 
 the machinery and barges be- as athuini.strator, had sutticient
 
 7G2 
 
 Oftlic Quftntitij of an Executor'' s Estate. [Pt.ii. Bk. iii. 
 
 It lias already appeared that an executor or administrator 
 may maintain these actions, although the injury was done 
 before probate or administration granted (1). 
 
 An executor, as such, may maintain quarc impedit, for a 
 disturbance in his own time (?n), or ejectment, where the 
 testator had a lease for years, or from year to year, upon an 
 ouster after his death {n). 
 
 Actions on So with respect to matters of contract, it has been de- 
 
 contracts . - ^ . 
 
 made with the cided, m a variety of modern cases, that an executor or 
 
 cxecu or. administrator may sue as surli, as well as in his own name, 
 
 upon a contract made with him in his representative cha- 
 racter : And this he may do, not only in cases where the 
 consideration flows from the deceased, but also in cases 
 where the consideration flows directly from himself as execu- 
 tor. Thus an executor may declare, as such, in assunqysit, 
 not only on an account stated with him as executor concern- 
 ing money due to the testator from the defendant, but also on 
 an account stated with him as executor, concerning money 
 due to him as executor (o). Again, an executor may maintain 
 an action, as such, for money lent by him as executor (j)). 
 So where money belonging to the estate of the testator is 
 received after his death, the executor may declare, on the 
 implied assumpsit, for money had and received to his use as 
 executor {q). So in Ord v. Fenicick (/■), it was held that an 
 administratrix, as such, may maintain assumpsit, for money 
 paid by her as administratrix to the use of the defendant : 
 And Lord Ellenborough laid down, that if an executor is 
 
 property in the coal raised from 
 the mines after he took out ad- 
 ministration, and in the barges 
 marked with tlie name of the 
 mortgagor's lessee, to maintain 
 trover. 
 
 (l) Ante, pp. 552, 553. 
 
 (m) Smallwood v. Bishop of 
 Coventry, Cro. Eliz. 207. 
 
 (n) Shade's case, 4 Co. 95, a. 
 
 Moreton's case, 1 Ventr. 30. Doe 
 V. Porter, 3 T. R. 13. 
 
 (o) Needham v. Croke, 1 Freeni. 
 538. Thomj^son v. Stent, 1 Taunt. 
 322. 
 
 (2)) Webster r. Spencer, 3 B. & 
 A. 365. 
 
 (q) Foxwist v. Tremaine, 2 
 Saund. 208. 
 
 (r) 3 East, 103.
 
 Ch. II.] Actions accruing to the Executo7\ 763 
 
 sued on the obligation of the tsstator, Avho had become 
 surety for a joint obligor, and is thus compelled to pay, an 
 action will lie by the executor, as such, to recover the money 
 so paid (s). So in Clarke v. Houfiham (t), it was held, that 
 where an administrator, in his representative character, has 
 paid that which he ought not, he may in the same character 
 recover it back again. Again, in Coicell v. Watts (u), it was 
 decided that an action may be maintained by an adminis- 
 tratrix, as such, for goods sold and delivered by her as 
 administratrix after the death of the intestate. So in the 
 case of Marshall v. Broadhurst {x), where the testator had 
 agreed to do certain work, and died before the work was 
 begun, and the executors did the work, using the materials 
 of the testator, and then brought an action, declaring in 
 their representative character for work and labour done, 
 materials found, and goods sold and delivered by the plaintiffs 
 as executors ; it was holden by the Court of Exchequer, that 
 they might recover the value of the materials ; and the 
 Court seemed to be further of opinion, that they might 
 recover also for the work and labour as executors. And in 
 Edivards v. Grace (?/), it was afterwards expressly decided in 
 the same Court, that an executor might sue, as such, for 
 work done by him as executor. So in the case of Asplnall 
 and others v. Wake {z), where the plaintiffs, being executors, 
 had continued to work the leasehold quarries of their testator, 
 and had shipped oft' for the defendant, from time to time, 
 cargoes of stone, partly dug before, and partly after the 
 testator's death, and the defendant had accepted bills, for 
 the price of some of the cargoes, drawn by the plaintiffs as 
 executors ; it was held that they might well sue, as executors, 
 for the price of the remainder of the cargoes. And, lastly, 
 in the case of Werner v. Ilumyhreys (a), where a coat had 
 been ordered by the defendant of a tailor, and had been cut 
 
 (s) 3 East, 105, 106. {y) 2 Mees. & W. 190. 
 
 (0 2 B. & C. 149. (a) 10 Bingh. 51. 
 
 (n) 6 East, 405. {a) 2 M. & Gr. 853. Moseley v. 
 
 (x) 1 Cromp. & Jerv. 403. Rcndfll, L. R., (\ Q. V,. 338.
 
 764 Of the Quant it 1/ of cm Executors Estate. [Pt. 11. Bk. iii. 
 
 out of the tailor's own cloth, tacked together and tried on in 
 his lifetime, but was finished and delivered after his death by 
 his administratrix ; it was held that she could not sue for the 
 price, as for goods sold and delivered by the intestate, but 
 that the proper form of action was for goods sold and delivered 
 by her as administratrix. 
 
 So with respect to negotiable instruments, it was decided 
 in King v. Thom {h), that if a bill be indorsed to A. and B. 
 as executors, they may declare as such, in an action against 
 the acceptor. So in Partridge v. Court (c), it was held that 
 an administrator may sue, as such, on a j)romissory note 
 given to him as administrator since the death of the intes- 
 tate. So where a bill of exchange was indorsed generally, 
 but delivered to S. C, as administratrix of J. C, for a debt 
 due to the intestate, and S. C. died intestate after the bill 
 became due, and before it was paid : it was held, in Cather- 
 wood V. Chabaud {d), that the administrator de bonis non of 
 J. C. might sue upon the bill, on the ground that, where the 
 cause of action is such that the first administrator may sue 
 in his representative character, the right of action devolves on 
 the administrator de bonis non. 
 
 The principle on which these cases was decided has not 
 been settled without conflict. Several old cases may be 
 found, in which it was considered that the contracts made 
 with an executor or administrator were personal to him, and 
 that he must sue for them in his own right, and not in his 
 representative capacity : and, particularly^, in the instance of 
 negotiable instruments, it was conceived, until very modern 
 times, that if an executor took a bill or note from a debtor 
 to the estate of his testator, a new debt was thereby created, 
 which must be declared on as such. However, the rule 
 may now be regarded as firmly established by the later 
 cases, that wherever the money recovered will be assets, the 
 
 (b) 1 Tr. E. 487, recognized Ijy (c) 5 Price, 41 2, confirmed in 
 
 Tyndall, C.J., in Aspinall r. Wake, error, 7 Price, 591. 
 10 Bingh. 55. (^) 1 B. & C. 150.
 
 Cli. II.] Actions accruinrj to the Executor. 7G5 
 
 executor may sue for it, and declare in his representative 
 character (e). 
 
 In the case of several executors, although it is established 
 by these authorities, that the circumstance of the money to 
 be recovered on a contract being assets warrants them in 
 suing for it in their representative character ; yet it is not 
 established that in all cases where the money recovered would 
 be assets, all the executors may join in suing on a contract, 
 whether they all made the contract or not. Thus in Heath 
 V. Chilton (/), where two or three executors (who had alone 
 proved the Will) authorized an attorney to receive rents 
 due to the estate of the testator, and to give receipts in 
 their names, and the rents were received, and receipts given 
 accordingly ; it was held, that the three executors could not 
 jointly sue the attorney for the money, unless it were found 
 by the jury, that the two contracted with him on account 
 of themselves and the other co-executor, or generally on 
 account of the estate, with a view to the interference of the 
 co-executor, in case he should choose to take a part in the 
 management of it. 
 
 It must be further observed, that if the executor or ad- 
 ministrator takes a bond from a simple contract debtor to the 
 estate of the deceased, though it be given to him as executor 
 or administrator, it should seem that he cannot sue in his 
 representative capacity on such bond ; because the effect of 
 the bond is to extinguish the simple contract debt, creating a 
 new and personal obligation of a higher nature {g). 
 
 "Where an agoit having property of his principal in his 
 hands, and being ignorant of the death of his principal, for 
 the purpose of transmitting the property, obtained a bill of 
 
 (e) Cowell V. Watts, 6 East, As to set off in these cases, see 
 
 410, 411, 412. Heath v. Chilton, -pofit, Vt. v. Bk. i. Ch. i. and ii. 
 
 12 M. & W. G37, per Parke, B. (/) 12 M. & W. G32. 
 
 Abbott V. Parfitt, L. R. G Q. B. {(]) Hosier v. Lord Aruiiclell, 3 
 
 346, distinguishing Bolingbroke ?;. Bos. & Pull. 7. Partridge v. Court, 
 
 Kerr, L. R. 1 Ex. 222, in whicli 5 Price, 419, 420, 421. Price v. 
 
 case the business was not carried Moulton, 10 C. B. 561. 
 on for the benefit of the estate.
 
 766 Of the Quantity of an Executors Estate. [Pt. ii. Bk. in. 
 
 exchange for the value, and indorsed it specially to his 
 principal ; it was held, that as the property, for which the 
 bill was remitted, belonged to the principal's estate, it was 
 competent to his administrator to elect to take the bill 
 as a mode of payment, that the property vested in him, 
 and that he acquired a right to sue upon the bill in that 
 character {h). 
 
 It was assumed by counsel, in arguing against the right 
 of the executor to sue as such, in Clarke v. Hougham (i) , that 
 where a payment by an executor or administrator is a devas- 
 tavit, the personal representative can only sue to recover it 
 back in his own name : But Mr. Justice Bayley, in delivering 
 his judgment, observed, " That is a principle to which I 
 cannot assent : on the contrary, when he discovers that he 
 has in his representative character paid that which he ought 
 not, he may in the same character recover it again. The 
 money was assets ; and if the suit be as executor or adminis- 
 trator, it will continue assets ; but if the suit be in the indi- 
 vidual capacity, the demand will be in the first instance 
 subject to a set-ofi", or when recovered will be liable to the 
 plaintiff's debts. A devastavit is a wrong, and the law will 
 not compel an executor to persevere in a wrong " {k). 
 
 An executor or administrator may bring an action on a 
 judgment recovered by him as executor or administrator: 
 and he may sue in this case either in his representative 
 character, or in his o^mi name {I). 
 
 Qi) ]\Iurray r. E. I. Company, 5 could not maintain an action for 
 
 B. & A. 204. money had and received to recover 
 
 {i) 2 B. & C. 149. Ante, p. 763. back this money, notwithstantling 
 
 {Jc) 2 B. & C. 155. But in the the defendants could not compel 
 
 case of Munt, Executors, &c., v. them to pay it ; and BuUer, J., 
 
 Stokes, the testator having bor- said, that even if the plaintifis 
 
 rowed money on a respondentia were entitled to recover, they 
 
 contract, prohibited by the laws of should have declared in their own 
 
 this country, his executors, the right, and not as executors : 4 
 
 plaintiffs, refunded the money to T. R. 561. 
 
 the lenders, the defendants ; the (/) Crawford i--. Whittal, Dougl. 
 
 Court held, that the executors 4, ii. (1).
 
 Cli. II.] Actions accruing to the Executor. 767 
 
 Claims by or against an executor or administrator as sucli, 
 may be joined with claims by or against him personally, 
 provided the last-mentioned claims are alleged to arise with 
 reference to the estate in respect of which the plaintiff or 
 defendant sues or is sued as executor or administrator (m). 
 
 In the above cases of contract, the promise sued upon by Suits accruing 
 the executor was expressly or impliedly made to himselt in executor on 
 his representative character; but it is clear, that in many ^y'ith'^testator/ 
 cases an action on which the deceased himself could not have 
 sued, may accrue to the executor or administrator in his own 
 time, upon a contract made with the testator or intestate in 
 his lifetime. 
 
 It has already appeared, that where a cause of action 
 accrued in the lifetime of the testator on a contract made 
 to him, without naming his executors, or to him and Jtis 
 assigns, such chose in action, generally speaking, is trans- 
 mitted to the executor (n) : And the executor will also be 
 entitled to sue on such a contract, although the action does 
 not accrue till after the death of the testator. Thus, if A. 
 covenants with B. to make him a lease of certain land by 
 such a day, and B. dies before the day, and before any lease 
 made, if A. refuse to grant the lease, when the day arrives, 
 to the executor of B., the executor shall have an action as 
 such on the covenant (o). So in the case of Husband v. 
 Pollard (p), a father possessed of a term for years, held of the 
 church, and renewable every seven years, assigned this lease 
 to his son in trust for himself for life, remainder in trust for 
 the son, his executors, administrators, and assigns, and the 
 father covenanted to renew the lease every seven years as 
 long as he should live ; tlie son died, and the seven years 
 
 (m) Rules of the Supreme Court, (o) Chapman v. Dalton, Plowd. 
 
 1883, Old. XVIII., rule 5. This 286. Wentw. Off. Ex. 188, 14th 
 
 rule, it seems, does not apply edit. 
 
 to counterclaiins. Macdonald v. (p) Cited in Randal v. Randal, 
 
 Carrington, 4 C. P. D. 28. 2 P. Wms. 467. 
 
 (h) Ante, p. 697.
 
 768 Ojthf Qaantihi of cm Exccuiors Estate. [Pt. ii. Bk. iii. 
 
 passed, upon which the executors of the son brought a bill 
 
 to compel the father to renew the lease at his own expense ; 
 
 and it was decreed accordingly. 
 
 on a contract So if A. covenant to grant a lease to I. S. and Jiis assigns 
 
 ;"^^V''^'' ?'' by Christmas, and I. S. dies before that time, and before the 
 
 testator antl •' ' ' 
 
 his assigns. grant of the lease, it must be made to his executors, as his 
 assigns, or they may bring covenant (q). So if a contract to 
 deliver a horse on a given day to B., or his assigns, if B. die 
 before the day limited for the delivery of the horse, his 
 executor may maintain an action on the contract, if A. 
 refuse to deliver the horse to him, because, by law, he is the 
 assignee of B. for such a purpose, and represents his person 
 as to receiving any chattels real or personal (r) : although if 
 A. in his lifetime had appointed I. S. to receive the horse, 
 I. S. would have been entitled as assignee in deed(s). So 
 if a man be bound to deliver a true rental, &c., to I. N., or 
 his assignee, at the end of twenty years, and he makes an 
 executor, and dies before the end of twenty years, there the 
 obligee is bound to deliver a true rental to the executor ; for 
 he is an assignee in law(0. So where one was bound to 
 stand to the award of two arbitrators, who awarded that the 
 party should pay unto a stranger, or his assigns, 200Z. before 
 such a day ; the stranger before the day died, and B. took 
 letters of administration : it was the opinion of the whole 
 Court that the money should be paid to the administrator ; 
 for he is assignee : and by Gawdy, J. : If the word assignee 
 had been left out, yet the payment ought to be made to the 
 administrator : quod Coke afirmavit {u). 
 
 But where the condition of an obligation is, that if the 
 obligor pay 20L to such a person as the obligee by his last 
 Will in writing shall appoint it to be paid, then the obliga- 
 tion to be void ; if the obligee appoint no person to whom 
 it shall be paid, but makes his last Will, and makes executors 
 
 Ul) Wentw. Off. E.x. 215, 14th 288. 
 
 edit. A'in. Abr. E.xecutois (X.), (s) Ihid. 
 
 pl- 10. (0 Bro. Abr. tit. Deputy. 
 
 (r) Cliapman v. Dalton, Plowd (h) Anon. 1 Leon. 316. 
 
 J
 
 Cli. II.] Actions accruiiKj to the Executor. '^^'^ 
 
 thereby, yet the 20L shall not be paid to the executors; 
 for here it appears that this was to have been paid to an 
 assignee in deed, to be made by the obligee by his appoint- 
 ment, and not to an assignee in law (x). The law will never 
 seek out an assignee in law, when there may be an assignee 
 in fact (y). 
 
 Likewise a right to sue, which never existed in the testator ^uits accruing 
 or intestate, may accrue to the executor or administrator {,°y ^remainder. 
 by remainder : as where a lease is made to B. for life, the 
 remainder to his executors for years (s), or where a lease for 
 years is bequeathed by Will to A. for life and afterwards to 
 B., who dies before A. ; although B. never had the term in 
 him, yet it shall devolve on his executors, who may maintain 
 an action in respect of it (a). 
 
 So a suit may accrue in the time of the executor or Suits accruing 
 administrator by reason of a condition made to the deceased. ^^^ reason of 
 —As where cattle, plate, or other chattels, were granted by ^°^jg^;°"' 
 the testator upon condition that if A. did not pay such a testator: 
 sum of money, or do some other act as the testator appointed, 
 &c., and this condition is not performed after the testator's 
 death, now is the chattel come back to the executor, and 
 he may maintain an action respecting it : So where the 
 condition is that the testator or his executors shall pay the 
 money to avoid the grant ; as where he pledges a jewel or a 
 piece of plate, and before the day limited for payment, he 
 dies, his executor is entitled to redeem at the day and place 
 appointed {h). 
 
 If no time be set for the redemption of the pledge, it has in what cases 
 been laid down that the pledgor must redeem during his of°the pledgor 
 life, and his executors cannot redeem (c). But the pledgor may redeem. 
 
 {x) 1 Roll. Abr. 915. Execu- (a) Wentw. Off. Ex. 181, 14th 
 
 tors (X.), pi. 2. edit. 
 
 (y) GoodaU's case, 5 Co. 97, a. ; (h) Wentw. Off. Ex. 181, Uth 
 
 but see Chapman v. Dalton, Plowd. edit. Toller, 164, Bac. Abr. Bail- 
 
 288. Ante, p. 768. ment (B.). 
 
 (z) Wentw. Off. Ex. 189, 14th (c) Eatcliff v. Davies, 1 Bulstr. 
 
 edit. Co. Lit. 54, b. Ante, p. 614, 29. Kemp v. Westbrook, 1 Ves. 
 
 etseq. Sen. 278, by Lord Hardwicke 
 
 W.E. — VOL. I. 3d
 
 770 
 
 Of the Quantity of an Executor s Estate. [Pt. ii. Bk. iii 
 
 is not confined to the lifetime of the pledgee {d) . The tender 
 should be to the executor of the pledgee (e). 
 
 Bac. Abr. Bailment (B.). But in 
 the book last cited a query is 
 added, whether Equity would not 
 relieve, unless it was clearly 
 proved that in case of death the 
 benefit of redemption was to be 
 lost. And it is laid down by an 
 eminent writer, that the personal 
 representatives of the pledgor may 
 
 redeem, unless he was called upon 
 by the pledgee to do so. Story's 
 Equity, § 1032. See also Story on 
 Bailments, § 348. 
 
 {cl) 1 Bulst. 29. Cro. Jac. 244. 
 3 Salk. 267. Bac. Abr. Bailment 
 (B.). 
 
 (e) Ihid.
 
 771 
 
 CHAPTER THE THIRD. 
 
 OP THE TITLE OF AN EXECUTOR OR ADMINISTRATOR TO THE 
 EXECUTORY AND CONTINGENT INTERESTS OF THE TESTATOR 
 OR INTESTATE, 
 
 Contingent and executory interests, whether in real or 
 personal estate, are transmissible to the representative of a 
 party dying before the contingency, upon which they depend, 
 takes effect (a). 
 
 Thus in Pinhury v. Elkin (b), the testator, in case his wife 
 should die without issue by him, then, after her decease, 
 gave SOL to his brother; after the testator's death, the 
 brother died in the lifetime of the widow, who afterwards 
 died without leaving any issue : The Court (Lord Maccles- 
 field) held that this possibility devolved to the executors of 
 the brother, though he died before the contingency happened ; 
 and decreed the legacy accordingly with interest from the 
 widow's death. 
 
 So in King v. Withers (c), the testator devised land to his 
 son B. ; but if he should die without issue male of his body, 
 then living, or which might be afterwards born, that then 
 his daughter should receive at her age of twenty-one, or day 
 of marriage, which should first happen, the sum of 3,500L 
 (over and above a portion bequeathed to her) ; but in case 
 the contingency of the said son's dying should not happen 
 before his daughter's said age, or day of marriage, that then 
 she should receive that sum whenever such contingency 
 might happen ; and charged the said legacy or portion on 
 
 (a) Fearno, Couting. Rem. 554. c. 26 (the Wills Act), s. 3. 
 2 Saund. 388 n., note to Purefoy {b) 1 P. Wins. 5G4. 
 
 V. Rogers. See also stat. 1 Vict. (c) Cas. temp. Talb, 117, 
 
 3 D 2
 
 772 Of the Quantity of an Executor s Estate. [Pt. ii. Bk. iii. 
 
 the real estate : The daughter married, having attained her 
 age of twenty-one, and died in the lifetime of her brother 
 B., who afterwards died without issue male : Lord Talbot 
 decreed, that the legacy should be raised for the benefit of 
 the administrator (the husband) of the daughter : and he 
 held, that though it did not absolutely vest, because it might 
 never arise, yet it so far vested as to be transmissible to the 
 representative. This decree was afterwards affirmed in the 
 House of Lords. 
 
 In Chaiincey v. Gray don (d), legacies were devised to 
 children, to be transferred to them at their respective ages 
 of twenty-one, or days of marriage ; and in case any of them 
 should die under that age, or marry without consent, &c., 
 his or her share should go to the others at their ages of 
 twenty-one : Lord Hardwicke held, that a share accruing 
 by the forfeiture of a child's marrying without consent vested 
 in another who attained twenty-one, but died before such 
 forfeiture, so as to entitle the personal representative of such 
 deceased child to an equal share thereof, with the other 
 surviving children ; for (said he) where either real or personal 
 estate is given upon a contingency, and that contingency does 
 not take effect in the lifetime of the devisee, yet if real, his 
 heir, and if personal, his executor, will be entitled to it : for 
 though in law a possibility is not assignable, yet in equity, 
 where it is done for a valuable consideration, it has been held 
 to be assignable, and is transmissible to the representative of 
 the devisee. 
 
 So in Peck v. Parrott (c), B., in consideration of natural 
 love and affection for her niece, and to secure to her separate 
 use her personal estate after her own decease, granted all her 
 personal estate to trustees in trust for herself during her 
 natural life, and after her decease, and payment of her debts 
 and funeral expenses in trust for the sole and separate use 
 of her niece alone, and not for her husband, or for such 
 person as she should appoint ; the niece died in the lifetime 
 
 (d) 2 Atk. 616. (e) 1 Yes. Sen. 236.
 
 Ch. III.] Contingent and Execittonj Interests. 773 
 
 of B. ; and after B.'s death, her (B.'s) executor and residuary 
 legatee filed his bill against the personal representative of 
 the niece, for this personal estate : Lord Hardwicke said, 
 that, under a trust, a contingent interest might go to the 
 executor or administrator, though not vested in the person 
 during his life ; and that in the same manner the contingent 
 interest here would go to the representative of the niece ; and 
 accordingly dismissed the bill. 
 
 These cases, and others referred to in the note below (/) 
 establish the principle, that contingent and executory inte- 
 rests, though they do not vest in possession, may vest in 
 right so as to be transmissible to executors or administrators. 
 But it is obvious that where the contingency, upon which 
 the interest depends, is, the endurance of the life of the party 
 entitled to it till a particular period, the interest itself will 
 be extinguished by the death of the party before the period 
 arrives, and will not be transmissible to his executors or 
 administrators. 
 
 This consideration leads directly to that portion of the 
 doctrine of Lapsed Legacies, which has reference to lapse 
 occasioned by the death of the legatee before the death of the 
 testator, or before any other period, upon the arrival of which 
 in the lifetime of the legatee, the right to the legacy depends. 
 But it will be convenient to postpone the investigation of this 
 doctrine, and to consider it hereafter, together with the 
 subject of Legacies generally. 
 
 It may be observed in this place, that the executor or The executor 
 administrator of the object of a power cannot be an appointee °f ^ power 
 under it : Thus where a husband gives his wife a power of cannot be an 
 
 '^ ^ appointee. 
 
 appointment of a fund in favour of his children, and a child 
 dies without any appointment having been made to him, no 
 part can be appointed to his executor or administrator (//). 
 
 (/) Barnes v. Allen, 1 Bro. C. C. Meriv. 130. 
 181. 3 Ves. 208. Perry v. Woods, (g) Maddison v. Andrew, 1 Ves, 
 
 3 Ves, 234. Massey v. Hudson, 2 Sen. 59.
 
 774 
 
 CHAPTER THE FOURTH. 
 
 OF THE CONTINUANCE BY THE EXECUTOR OR ADMINISTRATOR 
 OF ACTIONS COMMENCED BY THE TESTATOR OR INTESTATE. 
 
 JLhE practice with respect to the continuance of suits when 
 the cause of action survives to the executor or administrator 
 of the deceased is now regulated by Order XVII. of the Rules 
 of the Supreme Court, 1883, which enacts : — 
 Change of "Rule 1. A cause or matter shall not become abated by 
 
 death^&c. reason of the marriage, death, or bankruptcy, of any of the 
 parties if the cause of action survive or continue, and shall 
 not become defective by the assignment, creation, or devolu- 
 tion of any estate or title pendente lite, and, whether the cause 
 of action survives or not, there shall be no abatement by 
 reason of the death of either party between the verdict or 
 finding of the issues of fact and the judgment, but the judg- 
 ment may in such case be entered, notwithstanding the 
 death. 
 
 2. In case of the marriage, death, or bankruptcy, or devo- 
 lution of estate by operation of law, of any party to a cause 
 or matter, the Court or a Judge may, if it be deemed neces- 
 sary for the complete settlement of all the questions involved, 
 order that the husband, personal representative, trustee, or 
 other successor in interest (if any) of such party, be made a 
 party, or be served with notice in such manner and form as 
 hereinafter prescribed, and on such terms as the Court or 
 Judge shall think just, and shall make such order for the 
 disposal of the cause or matter as may be just. 
 
 3. In case of an assignment, creation, or devolution of any 
 estate or title pendente lite, the cause or matter may be 
 continued by, or against, the person to, or upon whom, such 
 estate or title has come or devolved. 
 
 4. Where by reason of marriage, death, or bankruptcy, or
 
 Cli. IV.] 0/tJie Continuing of Actions. 
 
 any other event occurring after the commencement of a cause 
 or matter, and causing a change or transmission of interest 
 or liability, or by reason of any person interested coming into 
 existence after the commencement of the cause or matter it 
 becomes necessary or desirable that any person not already a 
 party should be made a party, or that any person already a 
 party should be made a party in another capacity, an order 
 that the proceedings shall be carried on between the con- 
 tinuing parties, and such new party or parties, may be 
 obtained ex parte, on application to the Court or a Judge, 
 upon an allegation of such change or transmission of interest 
 or liability, or of such person interested having come into 
 existence. 
 
 5. An order obtained as in the last preceding rule men- 
 tioned shall, unless the Court or Judge shall otherwise direct, 
 be served upon the continuing party or parties or their solici- 
 tors, and also upon each such new party, unless the person 
 making the application be himself the only new party, and the 
 order shall from the time of such service, subject nevertheless 
 to the next two following Rules, be binding on the persons 
 served therewith, and every person served therewith who is 
 not already a party to the cause or matter shall be bound to 
 enter an appearance thereto within the same time and in the 
 same manner as if he had been served with a writ of 
 summons. 
 
 6. Where any person who is under no disability, or under 
 no disability other than coverture, or being under any disa- 
 bility other than coverture, but having a guardian ad litem in 
 the cause or matter, shall be served with such order as in Rule 
 4 mentioned, such person may apply to the Court or a Judge 
 to discharge or vary such order at any time within twelve 
 days from the service thereof. 
 
 7. Where any person being under any disability other than 
 coverture, and not having had a guardian ad litem in the cause 
 or matter, is served with any such order as in Rule 4 men- 
 tioned, such person may apply to the Court or a Judge to 
 discharge or vary such order at any time within twelve days 
 
 775
 
 776 0/ the Quantity oj an Executor's Estate. [Pt. ii. Bk. in. 
 
 from the appointment of a guardian ad litem for such party, 
 and until such period of twelve days shall have expired, such 
 order shall have no force or effect as against such last-men- 
 tioned person. 
 
 8. "SATien the plaintiff or defendant in a cause or matter dies, 
 and the cause of action survives, but the person entitled to 
 proceed fails to proceed, the defendant (or the person against 
 whom the cause or matter may be continued), may apply by 
 summons to compel the plaintiff (or the person entitled to 
 proceed), to proceed within such time as may be ordered ; and 
 in default of such proceeding, judgment may be entered for 
 the defendant, or, as the case may be, for the person against 
 whom the cause or matter might have been continued ; and 
 in such case, if the plaintiff has died, the execution may issue 
 as in the case provided for by Order XLII. rule 23. 
 
 9. Where any cause or matter becomes abated, or in the 
 case of any such change of interest as is by this Order pro- 
 vided for, the solicitor for the plaintiff or person having the 
 conduct of the cause or matter, as the case may be, shall 
 certify the fact to the proper officer, who shall cause an entry 
 thereof to be made in the cause-book opposite to the name of 
 such cause or matter. 
 
 10. Where any cause or matter shall have been standing 
 for one year in the cause-book marked as ' Abated,' or standing 
 over generally, such cause or matter at the expiration of the 
 year shall be struck out of the cause-book." 
 
 This order, so far as it relates to the death of a plain- 
 tiff or defendant, seems to be in substance a re-enactment 
 of the provisions of the Common Law Procedure Act, 1852. 
 Before that Act, if a sole plaintiff or defendant died before 
 verdict or judgment by default, the plaintiff or his executor 
 was obliged to commence a new action against the defendant 
 or his executor, provided the cause of action survived to or 
 against the executor. But by sect. 135 of the Common Law 
 Procedure Act, 1852, it was enacted that the death of a plain- 
 tiff or defendant should not cause the action to abate but that 
 it might be continued as provided by that Act. And by sect.
 
 Ch. IV.] Of the Continuing of Actions. 777 
 
 137, ill case of the death of a sole plaintiff or the sole surviv- 
 ing plaintiff, the legal representative of such plaintiJBf might, by 
 leave of the Court or a Judge, enter a suggestion of the death, 
 and that he was the legal representative, and the action there- 
 upon proceeded, and the truth of the suggestion was triable 
 thereat, and the judgment followed the verdict as if the person 
 making such suggestion was originally plaintiff. This section 
 did not apply to personal actions which would not survive to 
 the executor {a). 
 
 So also that part of the above Eule (1), which enacts that 
 there shall be no abatement by reason of the death of either 
 party between the verdict or finding of the issues of fact and 
 the judgment, but that the judgment may, in such case, be 
 entered, notwithstanding the death, takes the place of the pro- 
 vision of section 139 of the Common Law Procedure Act, 
 1852 (6), which was a re-enactment of the stat. 17 Car. II. 
 c. 8, sect. 1, which related to proceedings at Common Law, 
 and the 52nd section of 15 & 16 Vict. c. 86, which dealt with 
 the procedure in equity. 
 
 This portion of the rule extends, as did the old law, to all 
 personal actions, notwithstanding that the cause of action could 
 not have survived to the representative of the deceased, as for 
 a libel, negligence, &c. 
 
 Under the procedure in force before this Rule, in the case 
 of the death of a party between verdict and judgment, judg- 
 ment might be entered as if the party were still living, but 
 there must have been a revival by the executor to get execu- 
 tion (c). The statute of 17 Car. 11. referred to above was 
 held to make a judgment entered up under it equivalent to a 
 judgment entered up during the lifetime of the deceased 
 party {d). It did not apply to a non-suit (e), but, as it has 
 
 (a) Flinn v. Perkins, 32 L. J. r. 23. 
 
 Q. B. 10. (fO Colebeck v. Peck, 2 Ld. 
 
 (6) Repealed by stat. 46 & 47 Raym. 1280. Burnett v. Hokkn, 
 
 Vict. c. 49, sect. 3. 1 Lev. 277. 
 
 (c) A writ of revivor is no (e) Dowbiggin v. Harrison, 10 
 
 longer necessary, but leave must P.. &. C. 480. 
 be obtained under Order XLII.
 
 rr — i^ 
 
 t to 
 
 Of the Quantity of an Executor's Estate. [Pt.ii. Bk. iii. 
 
 Where sole 
 plaintift" dies ; 
 right of his 
 representa- 
 tive : 
 
 rights of 
 defendant. 
 
 Death of 
 plaintiff 
 between 
 verdict and 
 judgment. 
 
 already been shown, it did apply to actions which do not sur- 
 vive to the executor (/). The death of either party before the 
 assizes (g) was not remedied by the Act, but his death after 
 the assizes began (h), or after the first day of the sittings at 
 Xisi Prius though before the trial (i), was remedied, for the 
 assizes are but one day in law. 
 
 In the case of the death of a sole plaintiff or a sole surviv- 
 ing plaintiff it is necessary for the personal representative of 
 the plaintiff to get an order for leave to continue the action (k), 
 and if he does not do so, so that there is no person before the 
 Court in whom the action is vested, the action if called on for 
 trial will be struck out(Z). Or the defendant (or the person 
 against whom the cause or matter may be continued), may 
 apply by summons to compel the plaintiff (or person entitled 
 to proceed) to proceed within such time as may be ordered, and 
 in default of such proceeding, judgment may be entered for 
 the defendant (m), or it would seem the action may be dis- 
 missed for want of prosecution (n) ; but it would seem, in 
 such case, that the defendant must, before applying to dis- 
 miss, either get an order appointing some person to represent 
 the estate of the deceased, under Order XYI. rule 46, or, 
 where there is a personal representative, give notice to him. 
 Or the defendant may get an order staying the action (o). 
 
 An executor obtaining an order to continue an action even 
 after judgment becomes liable for costs ah initio in the same 
 manner as if the action had been commenced by him {j}). 
 If the plaintiff dies between verdict and judgment, judgment 
 may be entered notwithstanding the death, but where any 
 
 (/ ) Palmer v. Colien, 2 B. & Ad. 
 966. Kramer v. Waymark, L. E., 
 1 Exch. 241. 
 
 (rj) Taylor v. Harris, 3 B. & P. 
 549. 
 
 (/!,) Anon. 1 Salk. 8. 
 
 (i) Jacobs V. Miniconi, 7 T. R. 
 31. 
 
 (/:) Re Atkins' Estate, 1 C. D. 
 82. 
 
 (I) Eklridge v. Burgess, 7 C. D. 
 411. 
 
 (m) Ord. XVII. r. 8. 
 
 (n) Wright v. Swindon Ey. Co., 
 4 C. D. 164. AYingrove v. 
 Thompson, 11 C. D. 419. 
 
 (o) Warder v. Saunders, 10 
 Q. B. D. 114. 
 
 {p) Boyntonr. Boynton, 4 App. 
 Cas. 733.
 
 Ch. IV.] Of the Contimdng of Actions. 779 
 
 change has taken place, by death, or otherwise, in the parties 
 
 entitled to execution, the party alleging himself to be entitled Leave to issue 
 
 . - „ , execution. 
 
 to execution may apply to the Court or a judge lor leave to 
 issue execution accordingly, and such Court or a judge, if 
 satisfied that the party so applying is entitled to issue execu- 
 tion, may make an order to that effect, or may order an issue 
 to be tried {q). Where, after judgment, the plaintiff died, 
 having made a Will and appointed executors, an application to 
 the Court ex parte on behalf of the executors for leave to 
 issue execution was granted on production of the probate, and 
 unless the executor has obtained such leave he is not entitled 
 to issue a bankruptcy notice (r). Formerly the mode in which 
 an executor got execution, where a sole plaintiff died after final 
 judgment and before execution, was by reviving the judgment. 
 
 It should seem that no motion for a new trial can be New trial can- 
 made where the plaintiff has died since the trial, until pro- " °j. befonf ad- 
 bate or administration to the deceased has been obtained (s). ministration 
 
 granted. 
 
 The power (which formerly existed) of the Court or judge j-^^^y ^f 
 to order iudgment to be entered 7mnc pro tunc is confirmed by judgment nunc 
 
 Jo J- " jjj-0 tunc. 
 
 Order XLI. rule 3, of the Kules of the Supreme Court, 1883, 
 which now govern the procedure, whereby it is enacted that 
 where any judgment is pronounced by the Court or a judge 
 in Court, the entry of the judgment shall be dated as of the 
 day on which such judgment is pronounced, unless the Court 
 or judge shall otherwise order, and the judgment shall take 
 effect from that date, provided that by special leave of the Court 
 or a judge, a judgment may he ante-dated or post-dated. 
 
 At common law an administrator dc bonis non could not Revival by 
 
 . , ,i,-Ti ,T • • ^ L administrator 
 
 revive a judgment obtained by the original executor or dc bonis non: 
 administrator ; for he comes paramount the judgment, and 
 is no party thereto {t). But by statute 17 Car. II. c. 8, s. 2 17 Car. II. 
 (now repealed), the administrator de bonis non might revive a 
 judgment or decree obtained by an executor or administrator 
 
 (g) Ord. XLII. r. 23. N. S. 667. 
 
 (r) Ee Woodall, 13 Q. B. D. {t) Snape v. Norgate, Cro. Car. 
 
 479. 167. 
 (s) Lloyd i: Oglel.y, & C. B.
 
 780 
 
 UftJic Qufottittj of an Executors Estate. [Pt. ii. Bk. in. 
 
 Writ of./?. /rt. 
 issued in the 
 life of jiulg- 
 luent creditor 
 may be 
 executed after 
 his death. 
 
 After 
 
 judgment and 
 before 
 execution. 
 
 Where certio- 
 rari lies for 
 executors. 
 
 or perfect an execution already begun by the executor or 
 administrator. Such cases seem now to fall within the above- 
 mentioned Order. 
 
 If the plaintiff die after a feri facias sued out, the writ 
 may, notwithstanding, be executed, and his executor or 
 administrator shall have the money ; or if there be no exe- 
 cutor, and administration be not as yet granted, the money 
 shall be brought into Court, and there deposited until 
 some person appear to claim it as representative of the 
 deceased (u). 
 
 Formerly, where one of several plaintiffs in a personal action 
 died after judgment and before execution, execution could be 
 had by the survivors within a year after payment, without 
 reviving the judgment. But the execution in such case had 
 to be taken out in the joint names of all the plaintiffs, other- 
 wise it would not have been warranted by the judgment. 
 
 This case would now seem to be governed by Order XLII. 
 rule 23, since there has been a change in the parties 
 entitled to execution. 
 
 And where judgment has been given against two or more 
 defendants, if one or some of such defendants dies within six 
 years after judgment and before execution, execution may still 
 be issued against the estates of the survivors or survivor with- 
 out obtaining any order for that purpose ; but if it is desired 
 to enforce the judgment against the estate of the deceased 
 person or persons, an order under Order XLII. rule 23, Eules 
 of the Supreme Court, 1883, is necessary (x). 
 
 An inquisition oi felo de se, before the coroner siqyer visum 
 corporis (y), may be removed by the executors or administra- 
 
 (u) Clerk v. Withers, 2 Lord 
 Eaym. 1072. 1 Chit. Archb. 881, 
 14th edit. A writ of sequestra- 
 tion, however, is suspended by 
 the death of the person at whose 
 instance it issued, until it is revived. 
 "VMiarram v. Broughton, 1 Ves. 
 Sen. 183. 
 
 (x) Davis r. Andrews, W. N. 
 
 (84), 94. D. C. P., 6th edit., 
 p. 883. 
 
 (y) The coroner has no jurisdic- 
 tion if the body cannot be found, 
 as he can only hold an inquest 
 super visum corporis: see the 
 Coroners Act, 1887, 50 & 51 Vict, 
 c. 71, sect. 4.
 
 Ch. IV.] Of Warrants of Attorney. 
 
 781 
 
 tors of the deceased into the Queen's Bench Division by cer- 
 tiorari, and there quashed {z) ; or the inquisition may, after such 
 removal, be traversed by the executors or administrators {a). 
 
 Generally speaking, the death of the plaintiff countermands When an 
 a warrant of attorney to confess judgment (^). Yet, if the enter up 
 warrant of attorney be to enter up judgment at the suit of A., J^'^S'^ent on 
 
 •' i J o "^ ' a warrant or 
 
 his executors or administrators, it seems that on the death of attorney given 
 
 . to deceased. 
 
 A., the Court will give his executors or administrators leave 
 to enter up judgment thereon (c). But judgment cannot be 
 entered up after the death of the plaintiff, on a warrant of 
 attorney empowering him to enter up judgment to secure the 
 payment of a sum of money to the plaintiff, his executors 
 and administrators (d). 
 
 (z) In former tim^ inquisitions 
 were quashed for a variety of 
 technical defects usually of a trivial 
 character, but modern legislation 
 has rendered such objections im- 
 material. See 14 & 15 Vict, 
 c. 100, §§ 24, 25 and 30, and 
 24 & 25 Vict. c. 100, § 6. And 
 the new Coroners Act, 1887, 50 & 
 51 Vict. c. 71, § 20, enacts that 
 "if in the opinion of the Court 
 " having cognisance of the case an 
 " inquisition finds sufficiently the 
 "matters required to be found 
 " thereby, and where it charges a 
 " person with murder or man- 
 " slaughter sufficiently designates 
 " that person and the offence 
 " charged, the inquisition shall not 
 " he quashed for any defects, and the 
 " Court may order the proper 
 "officer of the Court to amend 
 " any defect in the inquisition and 
 "any variance occurring between 
 " the inquisition and tlie evidence 
 " offered in proof thereof, if the 
 "Court are of opinion that such 
 " defect or variance is not material 
 "to the merits of the case, and 
 " that the defendant or person 
 
 " traversing the inquisition cannot 
 " be prejudiced by the amendment 
 "in his defence, or traverse on the 
 " merits." 
 
 (a) 1 Saund. 363, note to Toomes 
 V. Etherington, S. P. 6 B. & C. 
 627, by Lord Tenterden. The 
 modern practice relating to applica- 
 tions by certiorari for the removal 
 of inquisitions for the purpose of 
 quashing them, the removal of 
 inquisitions for trial, and the 
 traverse of inquisitions is dealt 
 with in Messrs. Short & Mellor's 
 Crown Practice, pp. 106-113. 
 
 (6) Co. Lit. 52, b. Tidd's Pract. 
 551, 9th edit. If the warrant be 
 given to two or more, and one of 
 them die, the survivor may obtain 
 leave to enter up judgment at 
 his suit : Fendall v. May, 2 M. 
 & S. 76. 2 Chit. Arch. 13th edit. 
 pp. 768—769. 
 
 (c) Coles V. Haden, Barnes, 44. 
 As to the necessary affidavit of 
 execution in such a case, see Bald- 
 win V. Thompson, 2 Dowl. 591. 
 
 ((/) Henshall v. Matthew, 7 
 Biiigh. 337. Foster v. Claggett, G 
 Dowl. 524.
 
 782 
 
 Of the Quantitij of an Executors Estate. [Pt. il. Bk. ill. 
 
 When an 
 executor may 
 proceed on an 
 arbitration 
 commenced by 
 testator. 
 
 However, formerly, if the plaintiff died in vacation, within 
 a year after the giving of the warrant of attorney, judgment 
 might be entered up of course, at any time after, in that 
 vacation (e) ; and it would have been a good judgment at 
 common law, as of the preceding term, though it was not so 
 upon the Statute of Frauds, in respect of purchasers, but 
 from the signing (/). By rale 56, Practice Rules H. T., 
 1853, it was provided that all judgments should be entered of 
 record of the day of the month and year, whether in term or 
 vacation, when signed, and should not have relation to any 
 other day. Now, however, by Rules of the Supreme Court, 
 1883, Order XLI. rule 4, it is provided that in all cases where 
 the judgment has not been pronounced by a Court or a judge 
 the entry of judgment shall be dated as of the day on which 
 the requisite documents are left with the proper officer for the 
 purpose of entry, and the judgment shall take effect from that 
 date. 
 
 The authority of an arbitrator is determined by the death 
 of either party before award made : even where the sub- 
 mission is by order of nisi i^rms, and a verdict is taken for 
 the plaintiff, subject to the award (^). But it is now usual 
 to insert in the order of reference a clause providing, that in 
 the case of the death of either of the parties before the making 
 of the award, it shall be delivered to their personal repre- 
 sentatives (//). And where such a clause is inserted in the 
 order of nisi lyrius or rule of Court, or deed or other 
 
 (c) Tidd's Pract. 551, 9tli edit. 
 
 (/) Tidd's Pract. 551, 9th edit. 
 
 {g) Potts V. Ward, 1 Marsh. 366. 
 Toussaint v. Hartop, 7 Taunt. 571. 
 Cooper V. Johnson, 2 B. & A. 394. 
 Rhodes v. Haigh, 2 Barn. & Cress. 
 345. It is extremely questionable, 
 as a general proposition of law, 
 whether the death of one of the 
 parties on one side avoids an 
 award : Per Tindal, C. J., In re 
 Hare, 6 Bingh. N. C. 163. But 
 where an action would not abate 
 
 by reason of the death of one 
 party it seems probable that a 
 reference of that action is not 
 vacated by such death, but that 
 the power of the arbitrator re- 
 mains to bind the survivors thougli 
 not the personal representatives of 
 the deceased : Edmunds v. Co.x, 2 
 Chitt. 432. Russell on Arbitrators, 
 5th edit. 161. 
 
 [h) See the observations of Ab- 
 bott, C. J., in Cooper v. Johnson, 
 2 Barn. & Aid. 395.
 
 Cli. IV.] Arbitrations. 783 
 
 instrument under which the submission to arbitration is 
 effected, an award made after the death of either party 
 appears to be valid and available for or against the executors 
 or administrators {%). This, however, must be understood as 
 limited to an action in which the cause of action survives for 
 or against the personal representatives of the deceased party. 
 So where the parties to an action for a tort agreed before trial 
 to refer the matter in dispute to an arbitrator, the order of 
 reference containing a clause that the arbitrator should publish 
 his award, " ready to be delivered to the parties in difference 
 or such of them as require the same (or their respective per- 
 sonal representatives if either of the said parties die before the 
 making of the award)," and, where after the hearing of the 
 reference had been concluded, but before the award was made, 
 the plaintiff died, it was held that the cause of action, being 
 in tort, died with the plaintiff, and did not pass to his personal 
 representatives by force of the clause above-mentioned, which 
 in an action of tort was inoperative, and the executors who 
 took up the award were not entitled to be substituted for their 
 testator as plaintiff (k). 
 
 In an action where the cause of action survives for, and 
 against, personal representatives, if either party dies after the 
 award is made under an order of nisi prius, where a verdict 
 has been taken, subject to the award, judgment may be 
 entered notwithstanding the death, under the provisions of the 
 Kules of the Supreme Court, 1883, Order XVII. rule 1. The 
 power of the Court to order judgment to be entered 7iU7ic iiro 
 tunc has been already referred to ante, p. 779. 
 
 It may here be mentioned that the authority of an attorney The authority 
 in a cause is determined by the death of his client : conse- \^ a^causeTs^^ 
 quently, if, after a verdict for the plaintiff, and pending a rule <^ietermiijt>a hy 
 
 his client. 
 (i) Tyler v. Jones, 3 B. & C. & C. 146. 
 
 144. Clarke v. Crofts, 4 Bingh. {h) Bowker v. Evans, 15 Q. B. 
 
 143. Macdougall v. Kobertson, 2 D. 565. Aliter where, the cause 
 
 Y. & Jerv. 11. Rogers v. Stanton, of action has been determined and 
 
 7 Taunt. 575 (n). But it cannot the damages only are referred to 
 
 be enforced by attachment : New- an arbitrator for assessment : 
 
 ton V. Walker, Willes, 315. 3 B. Clhapman v. Day, 48 L. T. 907.
 
 784 
 
 Of the Quantity ofaii Executors Estate. [Pt. ii. Bk.iii. 
 
 22 & 23 Ylct. 
 c. 35, s. 26. 
 Executor 
 making pay- 
 ments under 
 power of 
 attorney not 
 to be liable by 
 reason of the 
 death of party 
 giving such 
 power. 
 
 for a new trial, the plaintiff dies, no cause can be shown 
 against the rule until there is a personal representative [1) : 
 Cause cannot be shown on behalf of the attorney who claims 
 a lien on the verdict for his costs {m). So where money is 
 paid into Court by a defendant who dies before verdict or 
 interlocutory judgment, if the suit abates, the money can be 
 paid out of Court, only to the personal representative of the 
 defendant ; and an application on the part of his attorney will 
 not be entertained (n). 
 
 *■ By stat. 22 & 23 Vict. c. 35, s. 26, no trustee, executor or 
 administrator making any payment or doing any act honCi 
 fide under any power of attorney shall be liable by reason that 
 the person who gave the power of attorney was then dead, or 
 had done some act to avoid the power without the knowledge 
 of the trustee, executor, or administrator. 
 
 hi. 
 
 (l) Shoman r. Allen, 1 Man. & 
 Gr. 96, note (c). But where after 
 a verdict for the defendant, lie 
 died, and then^ the plaintiff ob- 
 tained a rule for a new trial calling 
 on the " legal representatives of 
 the defendant or their attorneys," 
 to show cause, and it was served 
 on the latter ; it was held that 
 cause might be showTi by counsel 
 instructed by the attorneys acting 
 for the executors named in the 
 
 Win, though they had not proved 
 it ; and the Court distinguished 
 Shoman v. Allen, on the ground 
 that in that case there was no 
 person who could be served with 
 the rule ; in the present case there 
 was : Thomas v. Dunn, 1 C. B. 
 139. 
 
 (m) Shoman v. Allen, 1 M. & Gr. 
 96, n. (c). 
 
 (n) Palmer v. Reiffenstein, 1 
 Mann. & Gr. 94.
 
 785 
 
 BOOK THE FOURTH. 
 
 OF THE ESTATE OF SEVERAL EXECUTORS OR ADMINISTRATORS, OF 
 THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, AND OF AN 
 ADMINISTRATOR DE BONIS NON ; AND OF THE ESTATE OF AN 
 EXECUTRIX OR ADMINISTRATRIX, WHO IS A FEME COVERT. 
 
 CHAPTER THE FIRST. 
 
 THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR CONSIDERED, 
 WHEN THERE ARE SEVERAL EXECUTORS OR ADMINISTRATORS. 
 
 If there be several executors or administrators, they are Among several, 
 regarded in the light of an individual person (a). They have eacrhath the' 
 a joint and entire interest in the effects of the testator or ^^°^® estate, 
 intestate, including chattels real (b), which is incapable of 
 being divided ; and in case of death such interest shall vest 
 in the survivor (c), without any new grant by the Court (cl). 
 Consequently, if one of two executors or administrators grant 
 or release his interest in the testator's or intestate's estate to 
 the other, nothing shall pass ; because each was possessed of 
 the whole before (e). So, if one of several executors release 
 but his part of the debt, it has been held that the whole is 
 discharged (/). 
 
 (a) 3 Bac. Abr. 30, tit. Exors. Pt. in. Bk. i. Ch. ii. as to 
 
 (D. 1). the distinction taken by some 
 
 (6) Anon. Dyer, 23, b. Com. Dig. authorities between Executors and 
 
 Admon. (B. 12). Administrators. 
 
 (c) See the judgment of Parke, (e) Godolph. Pt. 2, c. 16, s. 1. 
 B., in Nation v. Tozer, 1 Cr. Mees. (/) Godolph. Pt. 2, c. 16, s. 1. 
 & R. 174. But if one executor of several 
 
 (d) Ante, p. 411. See infra alone Bell goods of the testator, 
 W.E. — VOL. I. 3 E
 
 786 Of the Quantity of an Executor's Estate. [Pt. ii. Bk. iv. 
 
 Again, if two men have a lease or term of years, as exe- 
 cutors, and the one of them grant all his right and interest, 
 and all that appertains to him by virtue of the lease, to A., 
 the whole term of years passes ; because every executor has 
 an entire authority and interest; otherwise of other joint- 
 tenants of a term {g). Therefore, if a lease of a thousand 
 acres of land comes to two executors, no partition or division 
 can be made between them, as between joint lessees of land, 
 where each hath but a moiety in interest, though possession 
 of and throughout the whole : but among executors each hath 
 the whole ; and, therefore, if he grants his part he grants the 
 whole (/i). Yet one executor may demise or grant the moiety 
 of the land for the whole term, and so may the other : And 
 by this means they may settle a moiety for each in some 
 third person intrusted for them (i). 
 
 Since several executors have a joint and entire interest in 
 all the goods of their testator, including chattels real, it 
 follows that the act of one, in possessing himself of the 
 effects, is the act of the others, so as to entitle them to a 
 joint interest in possession, and a joint right of action, if 
 they are afterwards taken aw^ay {k). 
 Several execu- Again, since several executors or administrators have a 
 on^a promLe"^ joint and entire interest in the estate in action of the de- 
 made jointly ceased, it follows, that they cannot maintain an action in 
 ■with one of "^ 
 
 them : right of the deceased, upon a contract made by the defendant 
 
 jointly with one of themselves {I). Therefore, to an action 
 
 he alone may maintain an action Heath v. Chilton, 12 M. & W. 632. 
 
 for the price, not naming himself Ante, p. 765. 
 
 executor : Godolph. uhi stq^ra. (g) Anon. Dyer, 23, b. 
 
 Wentw. Off. Ex, 224, 14th edit. (h) Dyer, 23, b. in margine. 
 
 Brassington v. Ault. 2 Bingh. 177: Godolph. Pt. 2, c. 16, s. 2. 
 
 So if goods be taken out of the (i) Godolph. Pt. 2, c, 16, s. 2. 
 
 possession of one of several execu- (k) Nation v. Tozer, 1 Cr. Mees. 
 
 tors : Godolphin and Wentworth, & R. 174. 4 Tyrwh. 563, by Parke, 
 
 uhi supra. And, generally, if one B. But see note (/) supra. 
 
 executor alone contracts on his (I) Godolph. Pt. 12, c. 6, s. 2. 
 
 own account, he mttsf sue alone on v. Adams, 1 Younge, 117. 
 
 such contract, notwithstanding the But see post, Pt. in. Bk. i. Ch. ii. 
 money recovered will be assets :
 
 Ch. I.] Of Several Executors, &c. 787 
 
 of assumpsit by several executors, it was held a good plea 
 in bar, that the promises were made by the defendant jointly 
 with one of the plaintiffs : And Mr. Justice Buller said, " the 
 promise was made jointly with one of the plaintiffs : How 
 can he sue himself in a Court of Law ? It is impossible to 
 say a man can sue himself" [m). 
 
 With respect to the power of one of several executors or Power of one 
 
 of S6VGr3il 
 
 administrators over the estate of the deceased, that sub- executors, &c 
 ject will be more conveniently further discussed hereafter "J^^^te 
 together with the power of executors and administrators 
 generally (/^). 
 
 (m) Moffat V. Van Millengen, of that executor who was a co- 
 
 2 Bos. & Pull. 124, note (c). Fitz- contractor with the defendant, see 
 
 gerald v. Boehm, 6 B. Moore, 332. Rose v. Poulton, 2 B. & Adol. 822, 
 As to bringing the action by tlie {n) Infra, Pt. ill. Bk. i. Ch. ii. 
 
 surviving executors after the death 
 
 3 E 2
 
 788 
 
 CHAPTEK THE SECOND. 
 
 Executor of 
 executor. 
 
 Administrator 
 lie bonis non. 
 
 OF THE ESTATE OF AN EXECUTOK OF AN EXECUTOR, OR OF AN 
 ADMINISTRATOR DE BONIS NON : AND OF THE ESTATE OF A 
 FEME COVERT EXECUTRIX OR ADMINISTRATRIX. 
 
 An executor of an executor, in however remote a series, 
 has the same interest in the effects of the first testator as 
 the first and immediate executor {a). With respect, indeed, 
 to dwses in action, it should seem to have been estabHshed, 
 at common law, that an executor of an executor could not 
 bring actions in respect of the original testator (6). But by 
 statute 25 Edw. III. st. 5, c. 5, it is enacted, that executors 
 of executors shall have actions of debts, accompts, and of 
 goods carried away of the first testators. An executor 
 of an executor is within the equity of the statute of 32 
 Hen. Vni. c. 37, with respect to remedies for rent arrear 
 in certain cases (c). 
 
 An administrator de bonis non is entitled to all the goods 
 and personal estate, such as terms for years, household 
 goods, &c., which remain in specie, and were not ad- 
 ministered by the first executor or administrator {d). Also 
 it is holden that if an executor receives money in right of 
 
 (a) Wentw. Off. Ex. c. 20, p. 462, 
 463, 14th edit. Com. Dig. Admi- 
 nistration (G.). 
 
 ih) Wentw. Off. Ex. c. 20, p. 
 
 461, 14th edit. It is difficult to 
 see on what principle this doctrine 
 rested ; especially as it was held 
 at common law, that execution 
 might be sued out on a judgment 
 or statute by an executor of an 
 executor : Ihid. 
 
 (c) Wentw. Off. Ex. c. 20, p. 
 
 462, 14th edit. Infra, p. 797. 
 
 (d) Wankford v. Wankford, 1 
 
 Salk. 306, by Lord Holt. Bac. 
 Abr. Executors (B. 2), 2. L. was 
 possessed of furniture and other 
 property, and on his death, intes- 
 tate, in 1827, the furniture was 
 removed by his widow to another 
 house, in whicli she resided, until 
 her death in 1 832, with her daughter 
 E., and continued during that 
 period to use the furniture : In 
 October, 1829, the widow caused 
 the furniture to be valued, in order 
 to her taking out administration 
 to L.J which she afterwards did :
 
 Ch. II.] Of an Administrator de bonis nan. 
 
 789 
 
 his testator, and lays it up by itself, and dies intestate, this 
 money shall go to the administrator de bonis non, being as 
 easily distinguished to be part of the testator's effects as 
 goods in specie (e). And wherever assets are in the hands 
 of a third person, at the death of an administrator, or exe- 
 cutor intestate, the administrator de bonis non may sue 
 for their recovery (/). 
 
 There is such a privity of estate between the former exe- 
 cutor or administrator, and the administrator de bonis non, 
 that, in assumpsit brought by the administrator de bonis non, 
 the promise may be laid to have been made to the former 
 executor or administrator {g). So if a former administrator 
 
 In 1838, the furniture was sold 
 by the defendant (who had 
 married another daughter of L.), 
 with E.'s concurrence : In 1840 
 (disputes having arisen about the 
 distribution of the proceeds), E. 
 took out administration to her 
 mother : It was held, that E. could 
 not maintain trover for the furni- 
 ture without having taken out 
 administration de bonis non to L. ; 
 Elliott V. Kemp, 7 M. & W. 306. 
 
 (e) Wankibrd v. Wankfoi'd, 1 
 Salk. 306. Bac. Abr. Executors 
 (B. 2), 2. 
 
 (/) Langford v. Mahony, 4 Dr. 
 & Warr. 81, 107. In that case a 
 firm of solicitors in Ireland were 
 employed by an administrator, to 
 recover a debt due to his intestate, 
 and they had a power of attorney 
 from the administrator, who was 
 resident in England, authorizing 
 them to receive moneys, and to act 
 generally for him in all matters 
 connected with the affairs of the 
 administration : The solicitors paid 
 over to the administrator certain 
 sums, which they received during 
 the course of the proceedings, and 
 retained the residue in payment of 
 
 their costs : the bill of costs was 
 not delivered to the administrator 
 during his lifetime, but, after his 
 death, an account was furnished 
 to his executors by the solicitors, 
 setting forth these costs, and ap- 
 plying in payment thereof the 
 sums which they had retained out 
 of the sums paid to them in the 
 course of the proceedings, and 
 from which it appeared that the 
 costs incurred exceeded the sum 
 retained by a sum of about lOZ. : 
 In this account the executors ac- 
 quiesced, although it did not ap- 
 pear that there ever had been any 
 formal settlement of it : and there 
 was no taxation of the costs : It 
 was held by Sugden, C, of Ireland, 
 affirming the order of the Master 
 of the Rolls, that an administra- 
 trix de bonis non of the intestate 
 was entitled to have the bill re- 
 ferred for taxation, and that, under 
 the circumstances, the settlement 
 with the executors of the ad- 
 ministrator was not a bar to such 
 right. 
 
 [(j) Hirst V. Smitl), 7 T. R. 182 
 Moseley v. Rendell, L. E. 6 Q. B 
 338 See ante, p. 764.
 
 '90 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iv. 
 
 enters into an agreement for the sale of a lease of a chattel 
 interest belonging to the intestate, and dies before the agree- 
 ment is completed, the administrator de bonis non stands in 
 such privity of estate that he will be compelled to carry the 
 agreement into execution Qi). 
 
 If the original executor or administrator has fraudulently 
 aliened the assets for his own use in collusion with the 
 vendee [i), such assets will be considered, in equity, as un- 
 administered, and will consequently pass as such to the 
 administrator de bonis non; who in that character may 
 apply to a Court of Equity to have the sale set aside, and 
 to have the legal estate conveyed to him. Thus where 
 a testatrix having directed that a leasehold should be 
 sold, and the money divided among five persons, the ad- 
 ministrator with the Will annexed, alleging that he had 
 become entitled to it by an agreement with the legatees, 
 assigned it over for valuable consideration : And it was 
 holden, that, at his death, it remained assets unadministered : 
 and that the purchaser must be directed to convey it to the 
 administratrix de bonis non, though the persons beneficially 
 interested were not all parties to the suit (k). It must how- 
 ever be observed, that if the administrator, in his character 
 of administrator, had sold the property, and the purchaser 
 had been ignorant of the real nature of the transaction, the 
 sale could not have been set aside (I). 
 
 If by some of the means specified in an earlier part of 
 this Work (m), the property in any of the eflfects of the de- 
 ceased has been changed by the original executor or admin- 
 istrator, and has vested in him in his individual capacity, 
 such effects will go to his own administrator or executor, 
 and not to the administrator de bonis non. Thus, in Drue 
 V. Baylie{n), an administrator made an underlease of the 
 
 [h) Hirst V. Smith, 7 T. R. 182, Russ. Chan. Cas. 549. 
 
 183, by Lord Kenyon. [1) See infra, p. 802, et seq. 
 
 (t) See infra, p. 804, et seq. (m) Ante, p. 566. 
 
 (k) Cubbidge v. Boatwright, 1 (») 1 Frecin. 462.
 
 Ch. II.] Of (ill Administrator cle bonis non. 
 
 intestate's term of years, reserving rent to himself, his execu- 
 tors, &c., with a covenant to pay the rent, and died : and it 
 was holden, that his executor, and not the administrator de 
 bonis non, should have the rent. So in Skeffington v. White- 
 hurst (o), it was holden hy Alderson, B., that upon the death 
 of an administrator, who has mortgaged the leasehold estate 
 of his intestate, reserving the power of redemption to him- 
 self, his executors, administrators, and assigns, the equity 
 of redemption vests in the personal representative of the 
 administrator, and not in the administrator cle bonis non of 
 the intestate. But on appeal to the House of Lords from 
 this decision, although it was affirmed on other grounds, 
 Lords Cottenham, Brougham, and Campbell, did not concur 
 with the view which the learned Baron had thus taken of 
 the case(_2j); for that although no action at law could be 
 brought on the mortgage deed, except in the name of the 
 personal representative of the administrator, yet when it is 
 clear that he has no claim on the estate, and that the admin- 
 istrator de bonis non is the person to whom a reconveyance 
 must ultimately be executed, there seems no reason why 
 the latter should not be allowed to file a bill against the 
 mortgagee to redeem (q). 
 
 Again, the administrator de bonis non is entitled to all 
 debts due and owing to the original testator or intestate ; 
 but in this instance also, the original executor or adminis- 
 
 {(/) 3 Younge & Coll. 1. when a reconveyance had been 
 (p) Skeffington v. Biuld, 9 CI. executed to him, he would not 
 & F. 220, 248. have been accountable to the 
 (q) The decision of Lord Not- administrator de horns non; and 
 tingham in Butler v. Bernard, 2 Lord Nottingham intimated no 
 Freem. 139, was considered by opinion that a bill to redeem may 
 Alderson, B., as one which not be maintained by the adminis- 
 governed the case before him. trator de bonis non, where the 
 But in the House of Lords it was representative of the administrator, 
 observed by Lord Campbell, that after the estate had been re- 
 in Butler V. Bernard it seems to conveyed to him, might himself 
 have been taken that the repre- be called on to convey to the 
 eentative of the administrator had administrator de bonis non. 
 Bome claim on the estate, so that. 
 
 791
 
 792 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iv. 
 
 trator maj', in some cases, have so altered tlie property in a 
 cliosc in action, as to transmit it to his own personal repre- 
 sentative, and not to the administrator de bonis non. Thus, 
 where A. died intestate, and his son took out administration 
 to him, and received part of a debt, being rent arrear to the 
 intestate, and accepted a promissory note for the residue, 
 and then died intestate ; it was held that this acceptance of 
 the note was such an alteration in the property as vested it 
 in the son, and, therefore, on his death, it should go to his 
 administrator, and not to the administrator de bonis non (r). 
 
 But it should seem from the case of Catlienvood v. Cha- 
 baud (s), that where the substituted cause of action is such 
 that the first executor or administrator may sue in his repre- 
 sentative character, the right of action devolves upon the 
 administrator de bonis non of the original deceased : for he 
 succeeds to all the legal rights which belonged to the first 
 executor or administrator in his representative capacity (t). 
 Therefore where a bill of exchange was endorsed generally, but 
 delivered to S. C, as administratrix of I. C, for a debt due 
 to the intestate, and S. C. died before the bill became due 
 and before it w^as paid ; it was held that the administrator 
 de bonis non of I. C. might sue upon the bill {u). In such 
 cases it does not follow, because the administrator de bonis 
 non may sue, that the representative of the original executor 
 or administrator may not sue : there may be instances where 
 the latter might and ought to sue : viz., if the first adminis- 
 trator or executor has made himself a debtor to the estate of 
 the original deceased for the amount of a bill received in pay- 
 ment of a debt due to that estate (x). 
 
 With respect to enforcing judgments obtained by the 
 original executor or administrator, the rights of the adminis- 
 trator de bonis non which were formerly governed by 17 
 
 (r) Barker v. Talcot, 1 Yern. (w) Catherwood v. Cliabaud, 1 
 
 433. Bac. Abr. Executors (B. 2), Barn. & Cress. 150. 
 2. (.,:) lb. 156, per Lord Teii- 
 
 (s) 1 Barn. & Cress. 150. terden. 
 
 (0 See ante, p. 764.
 
 Ch. II.] Of an Administrator de bonis nan. 793 
 
 Car. 11. c. 8, s. 2 (now repealed), would seem now to be 
 governed by Rules of the Supreme Court, Order XLII. r. 23. 
 
 If the original executor or administrator, in his own name, 
 brings trespass for goods taken out of his possession, which 
 were the testator's or intestate's and dies, his own executor 
 or administrator must take execution of the judgment ; but 
 in the case of an executor of an executor, he shall hold the 
 proceeds of the execution as assets of the first testator, and 
 in the case of an executor or administrator of an original 
 administrator, or of an administrator of an original intestate 
 executor, he shall be compelled in equity to pay them to the 
 administrator de bonis non (y). 
 
 Although marriage was before the passing of the Married Of the estate 
 Women's Property Act, 1882, an absolute unqualified gift by trix who is a 
 the wife to the husband of all the goods and personal chattels -^^'"^ '^°'''^''^' 
 which she was possessed of at that time, or became so 
 afterwards in Iter own right, yet the marriage made no gift 
 to him of the goods and chattels which belonged to his wife in 
 auter droit as executrix or administratrix : because such a 
 gift might prove disadvantageous to the creditors, &c., of the 
 testator or intestate : besides, since the wife took no bene- 
 ficial interest in the property, there was none which the law 
 could transfer to her husband {z). 
 
 Since the commencement of the Married Women's Property 
 Act, 1882 [i.e., 1 Jan. 1883], a married woman is by virtue 
 of the provisions of section 1 (2), capable of entering into and 
 rendering herself liable in respect of and to the extent of her 
 separate property on any " contract .... in all respects 
 as if she were Sifeme sole." 
 
 By section 24 of the Act it is provided that the word 
 "contract "in the Act shall include the acceptance of any 
 trust, or the office of executrix or administratrix. 
 
 This Act places a married woman, whenever married, in the 
 position of a feme sole, and as it is further provided by 
 
 (?/) Yaites v. Goiigli, Yelv. :^3. Piiicliell, 1 1 Mod. 178. 1 Eoper, 
 
 {z) Co. Lit. 351. Tliompson v. llusban<l and Wife, 187, 2ud edit.
 
 794 Of the Quantity of an Executors Estate. [Pt. ii. Bk. iv. 
 
 section 24 that the husband of an executrix or administratrix 
 shall not be subject to any liabilities incurred by his wife by 
 reason of any breach of trust or devastavit committed by her 
 as executrix or administratrix, either before or after her 
 marriage, unless he has acted or intermeddled in the trust or 
 administration, there ceases to be any reason for his ad- 
 ministering in his wife's right for his own safety, as there 
 was before the passing of the Act. 
 •21 & 22 Vict. By Stat. 21 & 22 Vict. c. 108, s. 7, it is enacted, that 
 c. 108. ,, ^^^ provision in this Act, and in the stat. 20 & 21 Vict, 
 
 c. 85, respecting the property of a wife who has obtained 
 a decree for judicial separation or an order for protection, 
 shall be deemed to extend to property to which such wife 
 has become or shall become entitled as executrix, adminis- 
 tratrix, or trustee, since the sentence of separation, or the 
 commencement of the desertion (as the case may be), and 
 the death of the testator or intestate shall be deemed to be 
 the time when such wife became entitled as executrix or 
 administratrix" {a). 
 The wife's As to the wife's power over her estate as executrix, it will 
 
 estete as^'^ ^^ ^^ proper to Consider the question hereafter (6), together 
 executrix. ^,j^]^ ^j^g subject of the power of a feme covert executrix or 
 administratrix generally. 
 
 (a) As to estate vested in a passing of this Statute, see Bathe 
 
 married woman as executrix, after v. Bank of England, 4 K. & J. 
 
 a protection order under the 564. 
 Divorce Act, but prior to the (6) Pt. iii. Bk. i. Ch. iv.
 
 PART THE THIRD. 
 
 OF THE POWERS AND DUTIES OF AN EXECUTOE OR 
 ADMINISTRATOR. 
 
 BOOK THE FIRST. 
 
 OF THE POWER AND AUTHORITY OF AN EXECUTOR OR 
 ADMINISTRATOR. 
 
 CHAPTER THE FIRST. 
 
 OF THE POWER AND AUTHORITY OF AN EXECUTOR OR 
 ADMINISTRATOR GENERALLY. 
 
 After the administration is granted, the power of an 
 administrator is equal to, and with, the power of an exe- 
 cutor (a). 
 
 It has ah'eady appeared in the course of the inquiry into Power of exe- 
 the quahty and quantity of the estate of an executor ministrator to 
 or administrator, that, as an executor or administrator ^""S action: 
 has the same property in the personal effects as the 
 deceased ha3 when living, so he has the same power to 
 bring actions to recover them {J>). It is clear that an 
 
 (a) Touchst. 474. to be delivered to the plaintiff, as 
 
 (6) Ante, p. 695, et seq. In executor, on his giving a schedule 
 
 Cobbett V. Glutton, 2 C. & P. 471, of the deeds contained in the box : 
 
 a relation of the defendants liad in The pUiintilf demanded tlie box 
 
 liis possession a box containing and its contents from the defen- 
 
 papers belonging to the deceased : dants, but they refused to deliver 
 
 The box, with its contents, was it up, unless the plaintiff would 
 
 sent by liim to the office of the give them a schedule of its con- 
 
 deffU'laut.-, wlio wcro solicitors, tents : And Lord Tentcrden held
 
 796 Of the Power of an Execvtor. [Pt. iii. Bk. i. 
 
 executor de son tort cannot bring any action in right of the 
 deceased (c). 
 
 Power of exe- Within a convenient time after the testator's death, or the 
 
 thVbousror ' grant of administration, the executor or administrator has a 
 
 the heir. right to enter the house descended to the heir, in order to 
 
 1 remove the goods of the deceased {d) ; provided he do so 
 
 ( without violence ; as, if the door be open, or at least the key 
 
 be in the door ; and, although the door of entrance into the 
 
 hall and parlour be open, he cannot therefore justify forcing 
 
 the door of any chamber, to take the goods contained in it ; 
 
 but is empowered to take those only which are in such rooms 
 
 as are unlocked, or in the door of which he shall find the 
 
 key (e). He has also, a right to take deeds and other 
 
 writings relative to the personal estate out of a chest in the 
 
 house if it be unlocked, or the key be in it ; but he has 
 
 no right to break open even a chest. If he cannot take 
 
 possession of the ef1:ccts without force, he must desist, and 
 
 resort to his action (/). On the other hand, if the executor 
 
 or administrator, on his part, be remiss in removing the 
 
 goods within a reasonable time, the heir may distrain them 
 
 as damage feasant (g). 
 
 Power of exe- Where a lessee for years underlets the land and dies, his 
 
 trahi/° ^^' personal representative may distrain, at common law, for 
 
 the arrears of rent which became due in the Ufetime of the 
 
 that the defendants had no right ceased, has sufficient title to main- 
 
 to insist on the inventory, before tain an action for taking them 
 
 they gave up the box : that the away, or injuring them, against a 
 
 plaintiff, as executor, was entitled mere wrongdoer. See ante, p. 253. 
 
 to the possession of the papers of {d) Wentw. Off. Ex. 202, 14th 
 
 Ithe deceased ; and that, being so, edit. 
 
 he was entitled to bring an action (e) Ibid. Toller, 255. 
 
 of trover, on the defendants' re- (/) Wentw. Oft'. Ex. 81, 202, 
 
 fnsal to give them up. 14th edit. 
 
 (c) Bro. Abr. Administration 8. (g) Wentw. Off. Ex. 202, 14t]i 
 
 It should, however, be observed, edit. Plowd. 280, 281. Stoddeu 
 
 that an executor de son tort, being v. Harvey, Cro. Jac. 204. 
 in possession of goods of the de-
 
 Cli. l] Of Distress. 797 
 
 deceased : because these arrears were never severed from the 
 reversion, but the executor or administrator has the rever- 
 sion, and the rent annexed thereto, in the same plight as the 
 deceased himself had it : and it is not like a reversion which 
 descends to the heir, while the arrears go to the executor or 
 administrator (/t). 
 
 But, at common law, the executors or administrators of a 
 man seised of a rent-service, rent-charge, rent-seek, or fee- 
 farm, in fee-simple, or fee-tail, or for his own life or "pur autre 
 vie, could not distrain for the arrears incurred in the lifetime 
 of the testator or intestate (i). To remedy this, the statute 
 32 Hen. VIII. c. 37, was passed, which, enacts that it shall 32 Hen. VIII. 
 be lawful to every executor and administrator of any person ^'^^.Qj.g ^^^' 
 or persons unto whom rent or fee-farm is or shall be due, and '^^y distrain 
 
 for rent due 
 
 not paid at the time of his death, to distrain for the arrear- to their 
 ages of all such rents or fee-farms, upon the lands, tenements, &c., in 'his 
 and other hereditaments which were charged with the pay- lifetime, 
 ment of such rents or fee-farms, and chargeable to the distress 
 of the said testator, so long as the said lands, tenements or 
 hereditaments continue, remain and be in the seisin or pos- 
 session of the said tenant in demesne, who ought immediately 
 to have paid the said rent or fee-farm so being behind, to the 
 said testator in his life, or in the seisin or possession of any 
 other person or persons claiming the said lands, tenements, 
 and hereditaments, only by and from the same tenant by 
 purchase, gift, or descent, in like manner and form as their 
 said testator might or ought to have done in his lifetime, 
 and the said executors and administrators shall, for the 
 same distress, lawfully make avowry upon their matter afore 
 said. 
 
 And by section 4, tenants pur autre vie, their executors or Power of execu- 
 
 -..,, Ti.-i- 11- ii tors of tenants 
 
 admmistrators may sue or distram tor arrears clue during tlie pur autre vie 
 life, and unpaid after the death, of the cestui que vie in like *° distrain, 
 manner as at Common Law they might have done during 
 his life. 
 
 {h) Wade V. Marsli, 1 Roll. Abr. Latch. 211. 
 672, tit. Distress (0.) 13. S. C. (t) Co. Lit. 1G2 a.
 
 798 Of the Power of an Executor. [Pt. iii. Bk. I. 
 
 The statute applies only to cases in which the owner of the 
 rent, if he had lived, might have distrained; and therefore, if 
 the rent be in arrear, and the owner grants away his interest 
 and dies, his executors or administrators shall have no 
 remedy for these arrearages (A). 
 
 The statute gives the power of distress upon the lands out 
 of which the rent is reserved, so long as they continue in the 
 hands of him from whom the rent is due, or of any person 
 representing or claiming title through or under him, by 
 purchase, gift, or descent, ad injinitum (l) : But they cannot 
 be distrained upon for such rent, if they be in the hands of 
 one claiming paramount to him ; and therefore, if the lord 
 enter upon the grantor for an escheat, the land shall not be 
 distrained upon for arrears of rent {m). So where a man 
 makes a lease for life, rendering rent, remainder for life, 
 remainder in fee, and after the accruing of rent from the 
 first tenant for life, the lord dies and then the tenant for life 
 dies, the executors cannot distrain upon the remainder-man ; 
 because he claims not by or from the tenant for life (n). And 
 if tenant in tail grant a rent for life, and die, the executor of 
 the grantee cannot distrain upon the issue in tail, who comes 
 in under the original gift in tail, and not under the grantor of 
 the rent (o). But if a man grant a rent- charge to A. for the 
 life of B., and lets the land to C. for life, the remainder to D. 
 in fee, the rent is in arrear for many years, B, dies, and after- 
 wards C. dies : A. may distrain D. in remainder for all the 
 arrears, by the statute (p). 
 
 All manner of arrears of rent issuing out of a freehold or 
 inheritance, whether they be in money, or in corn, cattle, 
 fowls, pepper, spurs, gloves, or any other profit to be delivered, 
 are within the statute, and that whether they be annual, or 
 
 (k) Co. Lit. 162, b. Ognel's (o) Lambert r. Austin, Cro. Elix. 
 
 case, 4 Co. 50 b. 333. Lord Fairfax v. Lord Derby, 
 
 (l) Co. Lit 162, b. Ognel's 2 Vern. 612. 
 
 case, 4 Co. 50, 6. (p) Co. Lit. 162,6. Edrich's 
 
 (m) Co. Lit. 162, b. case, 5 Co. 118. 
 
 (n) Co. Lit. 162, b.
 
 CL l] 
 
 Of DUtress. 
 
 799 
 
 every two, three or four years : But work-days, or any cor- 
 poral service or the like, are not within it {q) : Neither are 
 arrears of a nomine poence (r). 
 
 It has been holden that rents issuing out of freehold lands 
 are alone within the statute ; consequently that it does not 
 extend to enable executors or administrators to distrain for 
 the arrears of rents issuing out of copyhold (s). 
 
 {q) Co. Lit. 162, b. 
 
 (r) Ibid. 
 
 (s) Appleton v. Doily, Yelv. 135. 
 Bull. N. P. 57. But in Gilb. Ten. 
 186, 187, 188, there is the follow- 
 ing passage : "In the supplement 
 to my Lord Coke's Treatise of 
 Copyholds, (s. 21, Tracts 216,) it 
 is said that the 32 Hen. VIII. c. 8, 
 concerning remedies for arrears of 
 rent, extends not to copyholds. To 
 prove which, a case is cited in 2 
 Leon. 109, which is this : A lord of 
 a manor, whereof were divers copy- 
 holders, granted a rent-charge for 
 life, and afterwards made a feoff- 
 ment of the manor to J. S. in fee, 
 who granted a copyhold for life to 
 B. ; J. S. died, and the grantee of 
 the rent died, and his executors 
 distrained for the arrears in B.'s 
 copyhold lands ; and it is there 
 said, it was held by the Court that 
 the distress was not well taken ; 
 and the reason is, because the 
 words of the statute are claiming 
 only by and from him; and the 
 copyholder doth not only claim by 
 his grantor, but by custom. This 
 opinion, as it seems, was iipon the 
 first hearing of the cause ; for the 
 very case is reported quite con- 
 trary by the same reporter, 2 Leon. 
 152. 3 Leon. 59. Moor. 812 ; and 
 it is said to be resolved by all the 
 Judges but Fenner, that the copy- 
 hold should be charged with the 
 
 rent-charge ; for the custom is no 
 part of his title, but only appoints 
 how he shall hold : and since it 
 was charged in the lord's hands, 
 it is plainly within the intent and 
 meaning of the Act, as well as the 
 words, to be charged in the copy- 
 holder's hands ; and to this pur- 
 pose there is a case in Dyer, 270, b. 
 adjudged. But if the case were 
 adjudged, that the lands should 
 not be charged in the copyholder's 
 hands on that reason, that he doth 
 not claim only by and from, &c., 
 but by custom, yet that would 
 never warrant so general a con- 
 clusion, that the statute in no 
 other part should extend to copy- 
 holds, and that if a rent were 
 granted out of a copyhold in fee, 
 and the grantee died, that his exe- 
 cutors should not have debt or dis- 
 train. But turn the tables, and if 
 the Act of Parliament doth in point 
 extend to copyholds, as lands that 
 are claimed by, &c., and that which 
 in this case only doth make a 
 doubt, is overruled, then this is a 
 strong argument, that in other 
 cases, where that is not wliich oc- 
 casioned the doubt, the statute 
 shall extend to copyholds, espe- 
 cially since the Act was made to 
 remedy an apparent wrong, and 
 doth no harm either to lord or 
 tenant."
 
 800 
 
 Distress by 
 executor of 
 lessor -who has 
 leased for a 
 term or at 
 will: 
 
 3 & 4 Will. IV. 
 c. 42, s. 37. 
 
 Executors may 
 join in dis- 
 training or one 
 of several exe- 
 cutors may 
 distrain alone. 
 
 Executor of 
 administrator 
 who has 
 underlet. 
 
 Of the Power of an Executor. [Pt. iii. Bk. i 
 
 If a man makes a lease for life or lives, or a gift in tail, 
 reserving a rent, this is a rent-service within the statute of 
 Hen. YIII. {t). But whether if a person seised in fee of 
 land demises it for years, reserving rent, his executor or 
 administrators could, under this statute, distrain for arrears 
 of rent incurred in his lifetime, was a question which had 
 been much discussed, and was not settled until the cases 
 of Prescott v. Boucher («), and Joiies v. Jojies (x), which 
 decided the point in the negative ; on the ground that the 
 deceased was not tenant in fee simple, or indeed tenant at 
 all, of the rent. 
 
 But now by statute 3 & 4 Wm. IV. c. 42, s. 37, it is 
 enacted, " that it shall be lawful for the executors or admi- 
 nistrators of any lessor or landlord to distrain upon the lands 
 demised for any term, or at will, for the arrearages of rent 
 due to such lessor or landlord in his lifetime in like manner 
 as such lessor or landlord might have done in his lifetime." 
 
 By sect. 38, it is further enacted, " that such arrearages 
 may be distrained for after the end or determination of such 
 term or lease at will, in the same manner as if such term or 
 lease had not been ended or determined, provided that such 
 distress be made within the space of six calendar months 
 after the determination of such term or lease, and during the 
 continuance of the possession of the tenant from whom such 
 arrears became due : provided also, that all and every the 
 powers and provisions in the several statutes made relating 
 to distresses for rent shall be applicable to the distresses so 
 made as aforesaid." 
 
 Several executors or administrators may all join in dis- 
 training, or any one may distrain alone, for the whole rent due, 
 for they are regarded in the light of an individual j)erson {y). 
 
 If an administrator makes an underlease of a term of years 
 of the deceased, reserving rent to himself, his executors, &c., 
 
 {t) Co. Lit. 162, h. 
 («) 3 B. & Ad. 849. 
 (x) 3 B. & Ad. 967. 
 
 {y) 3 Bac. Abr. 30, tit. Exors. 
 (D.) 1.
 
 Ch. I.] 
 
 Of AlieniiKj the Assets. 
 
 801 
 
 it has been held that his executors, and not the administrator 
 de bonis non, shall have the rent : but it should seem that 
 they cannot distrain for it {z), because the reversion belongs 
 to the administrator de bonis non ; and a reversion is neces- 
 sary to found the remedy by distress {a). 
 
 It is a general rule of law and equity, that an executor 
 or administrator has an absolute power of disposal over the 
 whole personal effects of his testator or intestate ; and that 
 they cannot be followed by creditors {b), much less by legatees, 
 either general or specific, into the hands of the alienee (c). 
 The principle is, that the executor or administrator, in many 
 instances, must sell, in order to perform his duty in paying 
 debts, &c. : and no one would deal with an executor or 
 administrator, if liable afterwards to be called to account {d). 
 
 The executor 
 ha3 an abso- 
 lute power 
 over the whole 
 personal 
 estate : 
 
 the assets 
 cannot be fol- 
 lowed into the 
 hands of his 
 alienee : 
 
 {z) Drue v. Baylie, 1 Freem. 392, 
 403. See ante, pp. 790, 791. 
 
 (a) See Burne v. Richardson, 4 
 Taunt. 720. 
 
 (6) Nor can tliey be followed by 
 one who has paid off a debt of the 
 testator's or who has made ad- 
 vances to the executor to enable 
 him to do so : Haynes v. Forshaw, 
 11 Hare, 93. It is plain that a 
 creditor hasno specific right against 
 the leaseholds, or against any other 
 chattel of the deceased debtor of 
 which the executor may have 
 taken possession. He has a right 
 to sue the executor and to obtain a 
 decree against him. But it is 
 doubtful whether upon a common 
 decree for an account any right 
 would attach upon the leaseholds 
 or upon any specific chattels, unless 
 the decree also directed a sale of 
 such leaseholds or chattels : per 
 Wood, V.-C, in Simpson v. Mor- 
 ley, 2 Kay & J. 71, 75, 7G. 
 
 (c) Whale v. Booth, 4 T. R. 625, 
 note to Farr v. Newman. Nugent 
 V. Giffard, 1 Atk. 4G3. See also 
 
 W.E. — VOL. I. 
 
 Spackman v. Timbrell, 8 Sim. 2G0, 
 where a testator bequeathed lease- 
 holds to his son, and appointed 
 him and another person his exe- 
 cutors : Three years after the 
 testator's death, the son settled the 
 leaseholds, on his marriage : And 
 Sir L. Shadwell, V.-C, held that 
 as against the son's wife and chil- 
 dren, the property was not liable 
 to the testator's creditors. See 
 also Dilkes v. Broadmead, 2 De 
 a F. & J. 566, Accord. So 
 where an. executrix, after prol.vate 
 and after judgment recovered 
 against her for a debt due from 
 her testator, assigned all his pro- 
 perty and effects to trustees for the 
 benefit of his creditors, the assign- 
 ment was held valid as against 
 the judgment creditor : Wolver- 
 hampton Bank v. Marston, 7 H. & 
 N. 148. 
 
 {(1) By Lord Mansfield in Wliale 
 V. Booth. So if a temporary exe- 
 cutor or administrator has sold the 
 goods there is no remedy against 
 the vendees : Chandler v. TJiomp- 
 
 3 F
 
 802 
 
 even spRcific 
 legacies : 
 
 the executor 
 may mortg.ige 
 the assets : 
 
 Of the Power of an Executor. [Pt. iii. Bk. i. 
 
 The power of the executors to dispose of a chattel specifi- 
 cally bequeathed seems to have been formerly questioned {e) ; 
 but succeeding cases in modern times have established it 
 beyond dispute (/). 
 
 As an executor may absolutely dispose of the testator's 
 assets for the general purposes of the "Will, there seems no 
 good reason why, in the exercise of a sound discretion, and 
 presuming the language of the Will does not peremptorily 
 require an absolute sale, the executor may not raise the 
 money required by a partial sale or mortgage of the 
 assets (g). And, accordingly, the power of an executor or 
 administrator to mortgage the assets has been recognized 
 by high authorities on several occasions {h). The mortgage 
 
 son, Hoi). 266 : unless the transac- 
 tion be fraudulent, as where an 
 administrator durante minore cetate 
 sold East India stock, and the 
 buyer had full notice that it was 
 the stock of the infant : Munn r. 
 Dunkin, Finch. K. 298. See infra, 
 p. 804. 
 
 (e) Humble v. Bill, 2 Tern. 444. 
 (/) Ewer V. Corbet, 2 P. Wms. 
 149. Burting r. Stonard, 2 P. 
 Wms. 150. Langley v. Lord Ox- 
 ford, Ambl. 17. Lord St. Leonards 
 in his Treatise on Vendors and 
 Purchasers (vol. ii. p. 56, 9th edit.), 
 considers it doubtful whether it is 
 safe to take an assignment of a 
 specific legacy from the executor 
 without the concurrence of the 
 specific legatee, lest the executor 
 should have assented to the be- 
 quest : and he cites Tomlinson r. 
 Smith, Finch. 378. But Mr. Coote 
 (Mortg. 5tli ed. 309) observes that 
 that was a case of gross fraud ; 
 and concludes from all the cases, 
 that if a yjurchaser or mortgagee 
 shall bond fide deal with an. execu- 
 tor, within a reasonable time after 
 the testator's death, and obtain 
 
 possession of the muniments of 
 title, a specific legatee would never 
 be permitted, at law or in equity, 
 to set up the executor's assent 
 against the sale or mortgage ; for 
 by sale and delivery, the title of 
 the purchaser or mortgagee is com- 
 plete. However, the general rule 
 certainly is that, at law, the title 
 to any specific thing bequeathed, 
 vests, upon the assent of the exe- 
 cutor, absolutely in the legatee, so 
 as to enable him to bring an action 
 of ejectment for a chattel lease- 
 hold, or trover for the goods Avhich 
 are the subject of the legacy. (See 
 post, Pt. T. Bk. II. Ch. 1.) And 
 even in equity, if the legatee, after 
 the assent, were to assign to a 
 bond fide purchaser, the title of 
 such an assignee would, it should 
 seem, be better than that of any 
 subsequent purchaser from the exe- 
 cutors. See post, Pt. III. Bk. in. 
 Ch. IV. § III. 
 
 (g) Coote on Mortg. 5th ed. 309. 
 
 (/t) By Lord Hardwicke in Mead 
 
 r. Orrery, 3 Atk. 239 : by Lord 
 
 Thurlow in Scott v. Tyler, 2 Dick. 
 
 725 : and by Lord Eldon in M'Leod
 
 Cb. I.] 
 
 Of Aliening the Assets. 
 
 803 
 
 may be either of legal or equitable assets (i), or of mere 
 choses in action (k), and may be by actual assignment, or by 
 deposit (l), and it may properly give the mortgagee a power 
 of sale (m). So, the executor may pledge a part of the 
 assets for the purpose of better enabling him to administer 
 the estate ; and it should seem that the pledgee may sell the 
 things pledged, if they are not redeemed within the proper 
 time (?i). The power to mortgage is not taken away by the 
 mere commencement of an administration action, where no 
 receiver has been appointed and no injunction granted (nn). 
 
 Again, it is not incumbent on the purchaser or mortgagee a pmcliaser 
 of the assets to see the money properly applied, although he cutoVis not 
 
 "It is of great "t<>«fe 
 
 ° to the apph- 
 
 said Lord Thurlow, in Scott v. Tyler {p)/' that cation of the 
 
 purchase- 
 notice of the purpose for wliicli the "^^^^^ '• 
 money is raised : Ricketts v. Lewis, 
 20 C. D. 745. In the argument 
 in Re Morgan, 18 C. D. 93, Fry, J. 
 put three possible cases : (i) An 
 executoras executor borrows money 
 ostensibly for executorship pur- 
 poses on the security of the testa- 
 tor's assets ; that is a valid transac- 
 tion (Berry v. Gibbons, L. R. 8 Ch. 
 747) ; (ii) A man, known to 'be an 
 executor, borrows on the security 
 of the assets admittedly for his own 
 private purposes ; that is invalid. 
 (Wilson V. Moore, 1 M. & K. 337) ; 
 (iii) An executor, not known to be 
 such, borrows money for his own 
 private purposes on the security of 
 that which appears to be his own 
 property but which is really the tes- 
 tator's property. This last was the 
 case before Fry, J., and he hehl that 
 the transaction was invalid, and liis 
 decision was confirmeil by the 
 Court of Appeal, but the mortgage 
 was an equitable mortgage only by 
 deposit. The conflict here, it is to 
 be noted, was between two equi- 
 table titles. 
 
 (;?) 2 Dick. 725. 
 
 3 F 2 
 
 knew he was dealing with an executor (o). 
 consequence 
 
 V. Drummond, 17 Ves. 154. Child 
 
 iLr,^^ r. Thorley, 16 C. D. 151 
 
 "^ ^^'^3 (i) Nugent V. GiflFard, 1 Atk. 
 ^ '"iC- 463. Coote on Mortg. 5th ed. 310. 
 
 (k) Scott V. Tyler, 2 Dick. 724. 
 Vane v. Rigden, L, R. 5 Ch. 667. 
 
 (0 Ihid. Coote on Mortg. 5th 
 ed. 310. 
 
 (m) Russell y. Plaice, 18Beav.21. 
 
 (n) Russell v. Plaice, 18 Beav. 
 28, 29. 
 
 (nn) Berry v. Gibbons, L. R. 8 
 Ch. 747. 
 
 (o) M'Leod V. Drummond, 17 
 Ves. 154. Although an executor 
 or administrator, purporting to act 
 as such, will generally confer a 
 good title upon an alienee to whom 
 he conveys or transfers a legal es- 
 tate or title, and the alienee has no 
 (jbligation to see the consideration 
 money properly applied, yet as 
 the executor or administrator has 
 no right to raise money for his 
 own purposes or otherwise than for 
 the purpose of the performance of 
 the duties of administration, so a 
 mortgage for purposes foreign to 
 the administration will be set aside 
 as against a mortgagee who has
 
 804 Of tJie Power of an Executor. [PL in. Bk. i. 
 
 no rule should be laid down here wliicli may impede execu- 
 tors in their administration, or render their disposition of the 
 testator's effects unsafe or uncertain to a purchaser : His 
 title is complete by sale and delivery : icliat becomes of the 
 price is of no concern to him. This observation applies 
 equally to mortgages or pledges, and even to the present 
 instances where assignable bonds were merely pledged with- 
 out assignment." 
 exception In the caso of a legal transfer exceptions to the general 
 
 collusion be- powor of the executor or administrator to dispose of the estate 
 tween the pur- £ ^j^^ testator or intestate will be found in those cases only 
 
 chaser and •' 
 
 the executor : where coZ/usion exists between the purchaser, or mortgagee, 
 and the personal representative. That an executor may waste 
 the money is not alone sufficient to invalidate the sale or 
 mortgage ; it must further appear that the purchaser or 
 mortgagee participated in the devastavit, or breach of duty 
 in the executor (q). 
 
 Fraud and covin will vitiate any transaction, and turn it 
 to a mere colour. If, therefore, a man concerts with an 
 executor, by obtaining the testator's effects at a nominal 
 price, or at a fraudulent undervalue (r), or by applying the 
 real value to the purchase of other subjects, for his own 
 behoof, or in any other manner, contrary to the duty of the 
 office of executor, such concert will involve the seeming 
 purchaser or pawnee, and make him liable to the full 
 value (s). 
 
 Thus, where the person to whom the executor collusively 
 passes the property knows that the executor is acting in 
 violation of his trust, and in fraud of the persons interested 
 in the due administration of the assets, the fraud vitiates 
 the transaction, and the attempt to transfer the property is 
 
 (?) Whale V. Booth, 4 T. E. 625, deemed fraudulent and void : Rice 
 
 note. V. Gordon, 11 Beav. 265. 
 
 (r) Thus, a sale by an adminis- (s) By Lord Thurlow in Scott 
 
 trator to his brother and co- r. Tyler, 2 Dick. 725. See also 
 
 partner was set aside, it ajapearing the stat. 43 Eliz. c. 8, {ante, p. 
 
 to the Court, from the evidence, 210) as to treating the collusive 
 
 that the sale was made at an under- purchaser as an executor de son 
 
 value so gross, that it ought to be tort.
 
 Ch. I.] Of Aliening the Assets. 805 
 
 ineffectual and void : Therefore, in Doe v. Falloivs (t), where 
 an administratrix, being indebted to an attorney for rent, 
 executed to him a mortgage of leasehold property belonging 
 to her intestate, which falsely recited that 300^. was paid as 
 a consideration ; and the next of kin, not knowing the facts, 
 were induced, by misrepresentation, to execute the mortgage ; 
 and the jury at the trial found that the deed had not been 
 fairly obtained ; the Court of Exchequer held, that the mort- 
 gagee was not entitled to recover in ejectment against the 
 next of kin, because of the fraud ; nor against the administra- 
 trix, who was the v/idow of the intestate, as to her share of 
 the term, because, as the accounts of the estate had not been 
 wound up, it could not be ascertained whether there would be 
 any surplus, or any part which would belong to the widow {u) . 
 
 Formerly at Law (x), it was laid down, that the executor whether a sale 
 might make a valid sale of the effects in satisfaction of his "} an^execu-""^ 
 own private debt, although the purchaser knew the goods sold *°'''^ private 
 
 ^ ° '• ° aebt be valid : 
 
 were the goods of the testator or intestate (y). But in 
 Equity it seems to be established, that, generally speaking, 
 the executor or administrator can make no valid sale or j)ledge 
 of the assets as a security for, or in payment of his own debt : 
 on the principle that the transaction itself gives the purchaser 
 
 (0 2 Croinpt. & Jerv. 481. 2 Cr. & J. 483. 
 
 {u) It is submitted, with great (y) Whale v. Booth, 4 T. R. 625, 
 
 deference, that the correctness of in notis. Farr v. Newman, 4 
 
 this decision may he doubted. T. R. 642, 645. But Lord Mans- 
 
 Surely the assignment of the terui fiehl intimated in Whale v. Booth, 
 
 passed the legal estate from the that if the purchaser kriew the 
 
 administratri.x; to the lessor of the debts were unpaid, it would be a 
 
 plaintiff : and, therefore, he was fraud and vitiate the sale. The 
 
 entitled to recover at law, though rule, as laid down by Bay ley, B., 
 
 tlie assignment might be void at in delivering the judgment of the 
 
 laro with regard to the execution Court in Doe v. Fallows, 2 C. & J. 
 
 of the creditors of the intestate 483 ; 2 Tyrwli. 462, was that tlie 
 
 against the goods of the intestate : executor might make an eflcctual 
 
 or, in equity as against the next of disposal of the assets in considera- 
 
 kin. tion of a debt of his own, and to 
 
 (a;) See the observations of Loi-d discharge his own debt, if there 
 
 Mansfield, in Whale i;. Booth ; and were no fraud in the creditor in 
 
 of Bayley, 13., in Doe v. Fallows, accepting of such disposal.
 
 806 
 
 Of the Power' of an Executor. [Pt. iii. Bk. i. 
 
 ■where tlierc is 
 collusion lega- 
 tees as well as 
 creditors may 
 follow the 
 assets : 
 
 an executor 
 cannot pur- 
 
 01- mortgagee notice of the misapplication, and necessarily 
 involves bis participation in the breach of duty (z). 
 
 If the executor be also specific legatee, a sale or mortgage 
 from him of the specific legacy for satisfaction of his private 
 debt will be safe, unless it can be shown that the purchaser 
 or mortgagee knew there were debts unpaid (a). 
 
 AYhere there exists such collusion as to render the dealing 
 invalid, not only a creditor, but a legatee, whether general or 
 specific, is entitled to follow the assets (b). But they must 
 enforce their right within a reasonable time, or it will be 
 barred by their acquiescence (c). 
 
 An executor cannot be allowed, either immediately or by 
 
 {z) Bouney v. Eitlgard, 1 Cox, 
 145, 148. Scott V. Tyler, 2 Dick. 
 724. S. C. 2 Bro. C. C. 433. Hill 
 V. Simpson, 7 Ves. 152. Andrew 
 r. Wrigley, 4 Bro. C. C. 136, by 
 Lord Alvanley. M'Leod v. Drum- 
 mond, 17 Ves. 154, 170, by Lord 
 Eldon. Keane v. Kobarts, 4 Madd. 
 357, 358, by Sir J. Leacli. Wat- 
 kins V. Cheek, 2 Sim. & Stu. 205. 
 Cubbidge v. Boatwriglit, 1 Riiss. 
 Chanc. Cas. 549. Wilson v. Moore, 
 1 M. & K. 337. Eland v. Eland, 
 4 M. & Cr. 427, by Lord Cotten- 
 ham. Pannell v. Hurley, 2 Coll. 
 241. Haynes v. Forsbaw, 11 Hare, 
 99, by Wood, Y.-C. Cole r. Mud- 
 dle, 10 Hare, 186. Downes r. 
 Power, 2 .Ball & B. 491. Collin- 
 son V. Lister, 20 Beav. 356. Ee 
 Morgan, 18 C. D. 93, 98, per Fry, 
 J. Ricketts v. Lewis, 20 C. D. 
 745. And now since the Judica- 
 ture Act, 1873, it seems that the 
 rule established in Equity will 
 govern the case, as it is provided in 
 that Act (s. 25, sub-s. 11), that 
 generally in. all matters, in which 
 there is any conflict or variance 
 between the rules of Equity and 
 the rules of Common Law with re- 
 
 ference to the same matter, the 
 rules of Equity shall prevail. It 
 must not, however, be understood 
 from this that the legal and equi- 
 table rights should be treated as 
 identical, but only that the Court 
 should administer both legal and 
 equitable principles. Joseph v. 
 Lyons, 15 Q. B. D. 280. Cooper 
 V. Vesey, 20 C. D. 612. Manners 
 r. Mew, 29 C. D. 725. But it is 
 not enough to impeach a mortgage 
 by an executor that the advances 
 were originally made to him with- 
 out security and that the security 
 was afterwards added : Miles v. 
 Durnford, 2 De G. M. & G. 641. 
 
 (a) Taylor v. Hawkins, 8 Ves. 
 209. Hall V. Andrews, 27 L. T. 
 195 ; 20 W. R. 799. Coote on 
 Mortg. 5th ed. 311. 
 
 (6) Hill V. Simpson, 7 Ves. 152. 
 M'Leod r. Drummond, 17 Ves. 
 169. Wilson r. Moore, 1 M. & K. 
 337. 
 
 ((-) Elliott V. Merriman, 2 Atk. 
 41. Andrew v. Wrigley, 4 Bro. C. 
 C. 125. M'Leod v. Drummond, 
 before Sir W. Grant, 14 Ves. 353, 
 359, 363. S. C. before Lord Eldon, 
 17 Ves. 152.
 
 Ch. I.] Of Aliening the Assets. 807 
 
 means of a trustee, to be the purchaser from himself of any chase the 
 part of the assets, but shall be considered a trustee for the inmself : 
 persons interested in the estate, and shall account for the 
 utmost extent of advantage made by him of the subject so 
 purchased {d) . 
 
 But the executor of a deceased partner is warranted, in an executor of 
 equity as well as at law, in selling the share of the deceased to partner may 
 the surviring partners, if this can be done fairly and properly : ^^ii his share 
 Though when such a relation subsists between the parties, ving partners. 
 Courts of Justice will look at such transactions with close 
 attention ; for in dealings between the executor of a deceased 
 partner and the surviving partners there may be an inequality 
 in respect of knowledge, which may be taken advantage of in 
 such a way as to lead to inequitable and unfair results (e), 
 
 A sale is not avoided merely because, when entered upon, 
 the purchaser may at his option become trustee for the property 
 purchased {e.g. by proving a will under which he was named 
 executor), if in point of fact he never does become such. 
 Such a purchaser is under no disability, and, in order to avoid 
 such sale, it must be shown that he in fact used his power in 
 such a way as to render it inequitable that the sale should be 
 upheld (/). 
 
 It is a general rule, deducible from the principles which Power of exe- 
 have been above investigated, that executors and adminis- sign leases : 
 trators may, by virtue of their office, dispose absolutely of 
 
 (d) Hall V. Hallett, 1 Cox, 134. Act, govern the matter. 
 
 Watson V. Toone, 6 Madd. 153. Executors having been directed 
 
 It was held in the case of Mackin- by a will to sell the real estate, if 
 
 tosh V. Barber, 1 Bingh. 50, that they allow one of their number to 
 
 executors, to whom a power is hold buildings at less than a fair 
 
 "iven to sell, may at law sell to a occupation rent, are chargeable 
 
 trustee for themselves or may sell with what would have been a fair 
 
 to one of themselves. Wliether occupation rent : De Cordova v. 
 
 such a sale can be supported in De Cordova, 4 App. Cas. 692. 
 
 equity must depend upon the cir- {e) Chambers r. Howell, 1 1 Beav. 
 
 cuinstances under which it was 6. 
 
 made (1 Sugd. on Powers, 141, (/) Clark v. Clark, 9 App. Cas. 
 
 6th ed.) It seems that the rules 733. 
 of equity will, since the Judicature
 
 808 Of the Power of an Executor. [Pt. iii. Bk. i. 
 
 terms for years, which are vested in them in right of their 
 testators or intestates (</) ; and may make a good title, even 
 against a specific legatee, unless the disposition be fraudu- 
 and make lent : So an executor or administrator may make an under- 
 
 uiK ei u b h . jp,^gg Qf g^gl^ term by leasing it for a fewer number of years 
 and the rent reserved shall be assets in his hands, and go 
 in a course of administration (H) . 
 
 This, however, is an exceptional mode of dealing with the 
 assets, and those who accept the title in that way, must take 
 it subject to the question whether it was the best way of 
 administering the assets (i). 
 
 And although an executor or administrator may grant an 
 underlease, if necessary for the due administration of the 
 property, he cannot give an option of purchase at a future 
 time (A;) . 
 
 If the executor or administrator dies without having 
 administered the whole estate, it is not in the jjower of the 
 executor of such executor or the administrator de hoiiis non, 
 to avoid any such disposition made by the executor or 
 administrator during his life, 
 -what under- In a case in the Court of Chancery in Ireland (/) , where 
 
 cutm-s are good the children and widow of an intestate had agreed to divide 
 in equity : j-^^g persoual estate, including a lease of a farm for years, 
 according to the Statute of Distributions, and afterwards 
 the widow, not being disposed to abide by the arrange- 
 ment, took out administration, and leased the farm at an 
 undervalue to a person who had express notice of the 
 
 {(J) Bac. Abr. Leases, (I.) 7. acting in a due administration of 
 
 (/i) Ibid. the assets, but that a person could 
 
 (i) Oceanic Steam Co. v. Suther- not be permitted to hold a rever- 
 
 herry, 16 C. D. 236, by Jessel, sionary lease from an executor 
 
 M.R., ih., p. 243. In Keating v. with full notice, without showing 
 
 Keating, 1 Lloyd & Goold, 133, that Buch lease was properly 
 
 Sir E. Sugden, C, observed that granted in the due administra- 
 
 many circumstances would justify tion of the executor's office, 
 
 an executor in equity in granting {k) Oceanic Steam Co. f. Suther- 
 
 a lease instead of selling the pre- berry, 16 C. D. 236. 
 
 mises, and he would sustain such {I) Drohan v. Drohan, 1 Ball. 
 
 a lease by an executor simply & Beat. 185.
 
 Ch, I.] Of Assigning Leases and Underletting. 809 
 
 agreement between the widow and children, and that she 
 was by them called on to sell the intestate's interest in the 
 farm ; Lord Manners, C, set aside the lease on the appli- 
 cation of the children, and expressed his opinion that even 
 if the lease were at full value, yet, being taken by a person 
 having notice that a sale was called for, it could not be 
 sustained. 
 
 It should be observed, that it has been held that a bequest 
 of leaseholds to executors, tipon trust to sell, and to invest 
 the proceeds for the benefit of persons, some of whom are 
 infants, will not enable them to grant an underlease : And 
 the Court of Chancery will not enforce performance of an 
 agreement to take such underlease (m). 
 
 It remains to consider how far this power of the executor when the 
 or administrator to assign or underlet may be restrained by executor to" 
 the provisions contained in the lease itself. If a lease be ^^sign or 
 
 '■ underlet is 
 
 made for a term of years, npo7i condition, that if the lessee restrained by a 
 
 in • 1 • . • 1 <T , f ^ -I • 1 11 conditioa not 
 
 shall assign ms term without the assent ot the lessor, it shall to assign, &c. 
 be lawful for the lessor to re-enter, the term shall nevertheless 
 vest in the executor or administrator of the lessee without 
 any breach of such condition {n). But a question arises, 
 whether when a lease for years, with a condition or covenant 
 restraining alienation or underletting, comes into the hands 
 of the executor or administrator, he is warranted in assigning 
 or making an underlease of it. Where the executor or admi- 
 nistrator is named in the condition or covenant, he is bound 
 thereby : Therefore, if a lease contain a proviso, that the 
 lessee, his executors and administrators shall not set, let, or 
 
 (m) Evans v. Jackson, 8 Sim. princijile it would seem that the 
 
 217. opinion of Bayley, J., in Doe v. 
 
 (n) Parry t\ Harbert, Dyer, 45 b. Bevan, is correct, that assirjnment 
 
 It has been questioned whetlier a and such like words apply only to 
 
 bequest of a term by Will to a transfer inter vivos, and that if the 
 
 specific legatee is not a breach of a lessor desire to exclude a specific 
 
 condition not to alien : Berry v. devise of the term, he must do so 
 
 Taunton, Cro. Eliz. 331 : but see by ex))ress words: Woodfall on 
 
 Crusoe r. Bu^by, 3 Wills. 237. Landl'jrd and Tenant, 14Lh ed., 
 
 Doe V. Bevan, 3 M. & S. .IGl. On 081.
 
 810 Of the Power of an Executor. [Pt. iii. Bk. i. 
 
 assign over the whole or part of the premises, without leave 
 in writing, on pain of forfeiting the lease, the executor or 
 administrator of the lessee cannot assign or underlet, unless 
 by leave in writing, without incurring a forfeiture (o). So if 
 the lessee covenant that he, his executors or administrators, 
 shall not assign, without licence, except by his or their last 
 Will and testament, and the lessee makes his Will and dies, 
 the executors will be bound by the covenant, and cannot sell 
 the term for payment of debts without the licence of the 
 lessor (j)). But if the executors or administrators are not 
 named in the proviso or covenant, it may be doubted whether 
 the restriction will extend to them {q). Thus, in an anony- 
 mous case in Dyer (r), a question was asked upon these words 
 in a lease, " And it shall not be lawful for the lessee to give, 
 sell, or grant his estate and term to any person without the 
 leave of the lessor, upon pain of forfeiture of his said term ; " 
 the lessor and lessee die, and the executor sells the term 
 without the leave of the heir : And it was holden, that this is 
 out of the case of forfeiture, because the restraint was only 
 during the lives of the lessor and lessee : And yet it was 
 agreed in the bench, that the words above make a con- 
 dition (s). So in Seers v. Hind (t), a point arose whether 
 executors were warranted in disposing of a lease, as assets of 
 the testator, where there was a proviso against alienation by 
 the lessee : And Lord Thurlow said, *' if A. lets a farm to B. 
 with covenant not to alien, and B. dies, may not his executors 
 dispose of it ? I think it has been determined that they 
 may ; and I have always taken it as clear law. It is an 
 alienation by the act of God. I remember, Lord Camden 
 entered into the question much in the same way. He took 
 it to be clear law, that an alienation by death could not be a 
 
 (o) Roe V. Harrison, 2 T. R. 429, by Ashliurst, J. See also 
 
 425. See also Doe v. Bevan, 3 M. Phillips r. Everard, 5 Sim. 102, 
 & S. 357. (r) P. 66 a., pi. 8. 
 
 (P) Lloyd V. Crispe, 5 Taunt. (s) See also Touclist. 133. 
 
 249. (f.) 1 Ves. 294. 
 
 (q) Roe V. Harrison, 2 T. R.
 
 Cb. I.] Of Assigning Leases and Uiiderletting. 811 
 
 forfeiture. In case of a lease for years to A., it goes to Lis 
 executor, not by way of Hmitation as in tbe case of a 
 remainder over, &c., but as coming in the place of the lessee. 
 I understood it to be well settled, as I have stated." But 
 where a lease was made for years upon condition that the 
 lessee, his executors, or assigns, should not alien without the 
 consent of the lessor, an assignment by the administrator 
 of the lessee was held a breach of the condition; on the 
 ground of the administrator being an assignee within the 
 condition {u). 
 
 As to the question, whether, in case a term for years be 
 forfeited by reason of the executor or administrator assigning 
 or underletting without licence, relief can be obtained in 
 equity ; the general rule is, that a Court of Equity will not 
 atford any relief against a forfeiture occasioned by assigning 
 without licence {x). However, where a lease contained a 
 covenant, that if the lessee should let the premises for any 
 longer period than three years, except to the wife or children 
 of the lessee, "without licence of the lessor and his assigns 
 first had, then the said lease should be void, and the exe- 
 cutor of the lessee sold the lease for the payment of the 
 debts of his testator, the plaintiff, the purchaser, was relieved 
 against the forfeiture (?/). 
 
 This subject may be concluded, by observing that the The executor's 
 
 1 • • p T 1 power of dis- 
 
 executor s or administrator s power of disposal over the posal over the 
 assets is not at all controlled or suspended by the mere com- controlTed bv 
 
 mencement of an action, on the part of a creditor of the merely com- 
 mencing an 
 
 («) Sir Wm. More's case, Cro. breach of a covenant not to assign, 
 
 Eliz. 26. underlet, part with the possession, 
 
 (x) Lovat I'. Lord EaneLigh, 3 or dispose of the land leased (s. 14, 
 
 Ves. & Beam. 24. And in the sub-s. 6) ; against such a breach 
 
 Conveyancing and Law of Pio- the Act does not extend tlie power 
 
 perty Act, 1881 (44 & 45 Vict. c. 41 , of relief formerly exercised. 
 s. 14), where restrictions on, and re- (//) Cox v. Brown, 1 Chanc. Rep. 
 
 lief against, forfeiture of leases for 170 : but qucere, whether there was 
 
 the breach of certain covenants are any forfeiture in ihh case see ante, 
 
 given to the lessee, special exccp- p. 810. 
 tion is made for the case of a 
 
 administration 
 action.
 
 812 Of the Power oj an Executor. [Pt. iii. Bk. i. 
 
 deceased, for the administration of his estate : For the power 
 of the personal representative to aliene and make a good title 
 to any part of the assets continues until there has heen 
 judgment in the action {z). 
 
 Executor may A promissory note or bill of exchange made payable to 
 
 endorse a bill ■,■,-,. 
 
 of excbaDge. the deceased or his order, may be endorsed by his executor 
 or administrator {a). And, generally speaking, there is no 
 difference between an endorsement of a note by the deceased 
 and one by his personal representative {h). In a case where 
 the payee of a note, made payable to him or his order, had 
 endorsed it, but had died without having made any delivery 
 of it, and after his death his executors had merely delivered 
 it so endorsed to the plaintiff, it was held that he could not 
 maintain his action on the note : — for that the endorsement 
 of the testator was incomplete without a delivery by him, 
 and the delivery by his executors without any endorsement 
 by them was inefficacious (c). 
 
 Provisions of "Where the drawee of a bill is dead, presentment for accept- 
 
 BUls of . 
 
 Exchange anco may be made to his personal representative (cZ). The 
 
 holder now has an option, and presentment is excused, and a 
 bill may be treated as dishonoured by non-acceptance where 
 the drawee is dead {e). 
 
 Where the drawee or acceptor of a bill is dead and no 
 
 {z) Neeves v. Burrage, 14 Q. B. jjayable to drawer's order, insert 
 
 504. his own name as drawer, and can 
 
 {a) Eawlinson v. Stone, 3 Wils. enforce payment thereof against 
 
 1. Where a person is under obli- tlie acceptor : Scard v. Jackson, 34 
 
 gation to endorse a hill in the L. T. N. S. 65 ; 24 W. R. 159. 
 representative capacity, he may (h) AVatkius v. Maule, 2 Jac. & 
 
 endorse the bill in such terms as Walk. 243. 
 
 to negative personal liability. (c) Bromage v. Lloyd, 1 Exch. 
 
 Bills of Exchange Act, 1882 (45 32 : Bishop v. Curtis, 18 Q.B. 879. 
 & 46 Vict. c. 61), s. 31 (5). And {d) Bills of Exchange Act, 1882 
 
 if a person indebted to another (45 & 46 Vict. c. 61), s. 41 (I, c). 
 
 gives him a blank acceptance for a For the practice prior to this Act 
 
 certain sum, and the donee subse- see Smith v. -New South Wahs 
 
 quently dies, his administrator Bank, L. R. 4 P. C. 194, 208. 
 may fill up tlie paper as a bill {c) S. 41 (2, a). 
 
 Act, 1882,
 
 Ch. I.] Of Re-Assurance. 813 
 
 place of payment is specified, presentment for payment must 
 be made to a personal representative, if such there be, and 
 with the exercise of reasonable diligence he can be found (/). 
 Delay in making presentment for payment is excused when 
 the delay is caused by circumstances beyond the control of 
 the holder and not imputable to his default, misconduct or 
 negligence. When the cause of delay ceases to operate, pre- 
 sentment must be made with reasonable diligence {g). 
 
 Wherever a power is given, if a personal trust and con- Executor 
 
 „, T.,T •!• cannot exer- 
 
 fidence be thereby reposed in the donee to exercise his own cise a power of 
 judgment and discretion, he cannot refer the power to the ^^^ ^ ^ 
 execution of another ; for delegatus non 'potest delegare. 
 Therefore, where a power of sale is given to executors, they 
 cannot sell by attorney Qi). 
 
 By the statute 19 Geo. II. c. 37, s. 4, re-insurance on ships Power of exe- 
 was declared generally unlawful : but in case the assurer surer to re- 
 should die, his executors or administrators might make re- ^^^'^^'^• 
 insurance, to the amount of the sum before by him assured, 
 provided it was expressed in the policy to be a re-insurance. 
 The intention of the legislature, in making this exception in 
 favour of executors and administrators, seems to have been 
 to provide a fund to satisfy the assured in case of a loss, 
 without its falling on the estate of the deceased. 
 
 This was repealed, and re-insurance made lawful by statute 
 27 & 28 Vict. c. 5G. Both these enactments were repealed 
 by 30 & 31 Vict. c. 23, ss. 3, 4 (Sched. D), and thus re- 
 insurances are legal by virtue of the Common Law (i) with- 
 out any necessity for their appearing to be re-insurances on 
 the face of them (/c). 
 
 In the case of a person insured against fire, the policy of Tower of exe- 
 
 . . , -111 . cutors of ;is- 
 
 insurance and interest therein shall continue to his heir, sured to pro- 
 executor or administrator respectively, to whom the property i.l'JntTf poii'Jy. 
 
 (/) S. 45 (7). (i) ArnoukVs Marine Insurance, 
 
 in) S. 4G(1). 6th ed. 103. 
 
 {h) Combe's case, 9 Co. 75, h. (k) Mackenzie v. Whitworth, 1 
 
 1 Sugd. Powers, 222, Gth edit. Ex. Div. 36.
 
 814 0/ the Power of an Executor. [Pt. iir. Bk. I. 
 
 insured sliall belong, provided, before any new payment be 
 made, such heir, executor, or administrator, shall procure 
 bis right to be endorsed on the policy at the office, or the 
 premium to be paid in the name of the heir, executor or 
 administrator. 
 
 Power of elec- j^n executor may in some cases claim by election ; as where 
 tor. ^ the testator, at the time of his death, was entitled out of 
 
 several chattels to take his choice of one or more to his own 
 use {I). If the thing, of which the election is given, is to be 
 done unica vice, the election ought to be at the time {m). So 
 if nothing passed or vested in the grantee, &c., before his 
 election, it ought to be made in the life of the parties (n) : 
 As if a man gives to A. such of his horses, as A. and B. shall 
 choose, the election ought to be in the life of A. (o). But 
 where an interest vests immediately by the grant, &c., elec- 
 tion may be made by the heir or executor, as well as by the 
 party himself (p). As if a fine be of one hundred acres, and 
 the conusee renders fifty to the conusor for years, his exe- 
 cutor may choose which fifty he will have {q). If a man 
 gives one of his horses to A. and B., after the death of A., B. 
 may choose which he will take ; for an interest vested in 
 them immediately by the gift (r). So if the election deter- 
 mines only the manner or degree in which the grantee shall 
 have the thing, his heir or executor, as well as the party him- 
 self, may make it ; for in such case the interest vests imme- 
 diately (s) : As if a lease be granted to A. for ten or twenty 
 years, as he shall elect, the executor is entitled to the elec- 
 tion {t). So if A. makes a lease for years to B. of forty acres, 
 
 (Z) Toller, 174. tion (C.) pi. 4. Com. Dig. uU 
 
 (m) Com. Dig. Election (B.) Co. supra. 
 Lit. 145, a. ('•) 1 Roll. Abr. 725, tit. Elec- 
 
 (?i) lUd. tion (C.) pi. 5. Com. Dig. uhi 
 
 (o) Morris v. Livesay, 1 Eoll. supra. 
 Abr. 726, tit. Election (C.) pi. G, (s) Com. Dig. uhi supra. Co. 
 
 Com. Dig. Election (B.) Lit. 145, a. 
 
 [p) Com. Dig. Election (B.). (0 Toller, 174. 
 
 Iq) 1 Eoll. Abr. 725, tit. Elec-
 
 Cii. I.] Of Election. 815 
 
 parcel of sixty, the election may be made by B.'s executor (m). 
 
 So if the thing of which election is given, is annual, and 
 
 to have continuance, the heir or executor may make the 
 
 election {x). 
 
 An executor may pay or allow any debt or claim on any Power of exe- 
 
 evidence that he thinks sufficient. He may, if and as he composition^^ 
 
 thinks fit, accept any composition or any security, real or *''• 
 
 44 & 45 Vict 
 personal, for any debt or for any property real or personal c. 4i s. zi. ' 
 
 claimed, and may allow any time for payment of any debt, 
 
 and may compromise (y), compound, abandon, submit to 
 
 arbitration, or otherwise settle, any debt, account, claim or 
 
 thing whatever relating to the testator's estate, and, for any of 
 
 those purposes, may enter into, give, execute, and do such 
 
 agreements, instruments of composition or arrangement, 
 
 releases, and other things, as to him seem expedient, without 
 
 being responsible for any loss occasioned by any act or thing 
 
 so done by him in good faith iz). 
 
 («) Jones V. Cherney, 1 Freem. been effected : the other execu- 
 
 530. tors being held liable for so much 
 
 ix) Com. Dig. nhi supra. Co. of the said amount as might have 
 
 Lit. 145, a. come to their hands but for their 
 
 (y) As to the power of executors wilful default. 
 
 to compromise debts due from one (z) Conveyancing and Law of 
 
 of them to the estate, see De Cor- Property Act, 1881, 44 & 45 Vict. 
 
 dova V. De Cordova, 4 App. Cas. c. 41, s. 37. This section applies 
 
 692, where such a compromise was to executorshijis constituted or 
 
 set aside and the executor charged created either before or after the 
 
 with the full amount payable by commencement of the Act. 
 him if the compromise had never 
 
 Q<- <KJLdjt^ei«_
 
 816 
 
 Co-executors. 
 
 AreJease of a 
 debt by one of 
 two co-execu- 
 tois is valid. 
 
 CHAPTER THE SECOND. 
 
 OF THE POWEB AND AUTHOKITY OF ONE OF SEVERAL 
 EXECUTORS OR ADMINISTRATORS. 
 
 Oo-EXECUTORS, however numerous, are regarded in law 
 as an individual person ; and, by consequence, the acts of 
 any one of them, in respect of the administration of the 
 effects, are deemed to be the acts of all (a) ; for they have 
 all a joint and entire authority over the whole property {h). 
 Hence a release of a debt by one of several executors is valid, 
 and shall bind the rest {<■) . So one of several executors may 
 
 (o) Touchst. 484. 3 Bac. Al)r. 
 30. Exors. (C.) 1. Wentw. Off. 
 Ex, 206, 14th edition. Ex parte 
 Rigby, 19 Ves. 462. " As between 
 executors," says Lord Hardwicke, 
 "there can be no division of their 
 interest or authority : fur though 
 a man may appoint executors in 
 such a manner that their authority 
 may commence or determine at dif- 
 ferent times, yet he cannot nomi- 
 nate persons executors, and confine 
 one of tliem to one branch of his 
 estate, and another to anotlier ; for 
 they have a joint authority, which 
 extends to the testator's whole 
 estate, and cannot be divided into 
 distinct and separate powers : 
 Owen V. Owen, 1 Atk. 495, But 
 see ante, p. 201. 
 
 (6) 3 Bac. Abr. 30, tit. Execu- 
 tors, (D.) 1. Wentw. Off. Ex. 213, 
 14th edition. Owen v. Owen, 1 
 Atk. 495. 
 
 (c) Anon. Dyer, 23, h., in mar- 
 gine, Jacomb v. Harwood, 2 Ves. 
 
 Sen. 267. Where an action was 
 brought by two oiit of four exe- 
 cutors and the two executors who 
 were not joined in the action re- 
 leased the defendant, who pleaded 
 the release j^wt's darrein continu- 
 ance; the Court of Exchequer re- 
 fused to set aside the plea, the 
 jilaintiffs having failed to make 
 out a case of fraud : Herbert and 
 another v. Pigott, 2 Cr. & M. 384. 
 In Charlton v. Durham, L. R. 4 
 Ch, 433, a testator gave the re- 
 sidue of his estate to two executors 
 on certain trusts. Part of his 
 estate consisted of a bond given by 
 the trustees of a minor, who came of 
 age within a year after the death of 
 the testator, and the executors then 
 accepted his bond to them jointly in 
 the place of the bond given by the 
 trustees. Ten years afterwards a 
 part of the money was paid by the 
 obligor to one of the obligees vCsio 
 embezzled the money so paid, and 
 gave a receipt purporting to be
 
 Ch. il] 
 
 Of Co-Executors. 
 
 817 
 
 settle an account with a person accountable to the estate, 
 
 and in tlia absence of fraud, the settlement will be binding 
 
 on the others, though dissenting (d). So a grant or a sur- So is a grant 
 
 render of the term by one executor shall be equally avail- of a term. 
 
 able (e). So the attornment of one shall be the attornment So is an 
 
 of the other (f). And the sale or gift of one of several „ . 
 
 ^"^ ^ ° So IS a sale 
 
 executors, of the goods and chattels of the deceased, is the or gift of 
 sale and gift of them all (g). Again, it is said, in the mar- 
 ginal notes of Lord Chief Justice Treby to Dyer (li), that if 
 one of several executors confess the action, judgment shall 
 be given against all (i). But in a case decided, Mich. T. 
 3 Geo. I. {k}, there were three executors, one of whom gave 
 a warrant of attorney to confess a judgment against himself 
 
 signed by both the obligees, but 
 in fact signed by one only, the 
 signature of the other being a for- 
 gery. In a suit by the other 
 executor and cestuis que trustent 
 under the will against the obligor, 
 it was held that, though the obligor 
 intended to have the receipt of 
 both obligees, the receipt of one 
 was sufficient to discharge the ob- 
 ligor, as the obligees were execu- 
 tors. 
 
 (d) Smith V. Everett, 27 Beav. 
 446. And, where there are two or 
 more executors of a holder of a bill, 
 the endorsement of one is 'probahlij 
 sufficient to transfer the property 
 in the bill : Chalmers on Bills of 
 Exchange, 4th ed., 127. 
 
 (e) Dyer, 23, h., in margine, 
 Simpson v. Gutteridge, 1 Madd. 
 616. See Turner v. Hardey, 9 M. 
 & W. 770. Post, p. 820, n. (z). 
 
 (/) Dyer, 23, b., in margine, 1 
 Madd. 61(5. So if one executor 
 gets possession of the goods, and 
 pays debts with his own money as 
 far aa the amount of them, this is 
 a conversion of the goods of tlie 
 
 testator to his own use, and justi- 
 fiable by this executor against his 
 co-executor : Dyer, 23, b., in mar- 
 gine. 
 
 (g) Touchst. 484. Kelsock v. 
 Nicholson, Cro. Eliz. 478, 496, 
 Dyer, 23, b., in margine. A pur- 
 chaser of the subject of a specific 
 legacy from one of several executors, 
 who is also the legatee, is not bound 
 to enquire whether the other exe- 
 cutors have given their assent : 
 Cole V. Miles, 10 Hare, 179. But 
 where one of two executors, erro- 
 neously believing that he was acting 
 ivith the authority of the other, con- 
 tracted to sell a leasehold house, 
 part of the testator's estate, it was 
 held that the purchaser could not 
 enforce a specific performance of 
 the contract : Sneesby v. Thorne, 
 7 De G. M. & G. 399. 
 
 (h) P. 38, b. 
 
 {i) See also the judgment of Sir 
 John Leach, V.-C, in Simjison v. 
 Gutteridge, 1 Madd. 616 ; and Le- 
 pard V. Vernon, 2 V. & B. 54. 
 
 (k) El well V. Quash, Stra. 20. 
 
 W.E. VOL. I. 
 
 3 G
 
 818 Of the Power of an Executor. [Pt. iii. Bk. i. 
 
 and bis co-executors, pursuant to which a judgment was 
 entered against all the executors de bonis testatoris for the 
 debt, and against the executor who gave the warrant, de 
 bonis jJrojmis for the costs ; upon motion to set this aside, 
 it was held to be ill : for executors may plead different 
 pleas (/), and that which is most for the testator's advantage 
 shall be received (m). Further, it has been held that if one 
 of two executors appointed by the obligee delivers a bond to 
 a stranger in satisfaction of a debt due from himself and 
 dies, although the debt, as a chose in action, could not 
 then have passed by the assignment, yet by this delivery 
 the party had such an interest in the instrument, that he 
 might justify the detention of it as against the surviving 
 executor (n). 
 
 In a case (o), where one ot several executors assigned to a 
 creditor of the testator a debt due to the testator's estate, it 
 was holden by Sir W. Grant, that such an assignment was 
 not available against the dissent of the other executors : His 
 Honor observed, that if the single executor had parted with 
 any portion of the property to the particular creditor, who by 
 such an assignment had obtained a legal advantage, it could 
 not, perhaps, be taken from him ; but in the present case 
 there was merely an assignment of a chose in action, of which 
 no use could be made without the assistance of a Court of 
 Equity; and that a Court of Equity would not interfere to 
 give a particular creditor an advantage against the other 
 executors and the general creditors. 
 One of two j^^^ assent to a legacy by one of several executors is suffi- 
 
 cxj-executors ^ ./ ./ 
 
 may assent to 
 a legacy. 
 
 (/) See infra, Pt. v. Bk. ii. sides to pay all the debts and 
 
 Ch. I. legacies, there, perhaps the other 
 
 (?n) See Baldwin v. Church, 10 execiitor may have remedy in 
 
 Mod. 323. equity against his co-executor and 
 
 (n) Kelsock v. Nicholson, Cro. the creditor : Touchst. 484. See 
 
 Eliz. 478, 49G. Dyer, 23, h., in ante, p. 805 et seq. 
 
 margine. If there be any fraud (o) Lepard r. Vernon, 2 V. & B. 
 
 between the executor and the ere- 51. See Judicature Act, 1873, 
 
 ditor, and there be not assets be- s. 25, sub-s. 6.
 
 Ch. II.] • Of Co-Executors. 819 
 
 cient (_p). So, also, if one of several executors be a legatee, 
 his single assent to his own legacy will vest the complete 
 title in himself (5). Again, if the subject be entire, and be 
 given to all the executors, the assent of one of them to his 
 own proportion will be sufficient (r). 
 
 By stat. 33 & 34 Vict. c. 71, the Bank of England may 
 require all the executors, who have proved the will to join 
 and concur in any transfer of stock standing in the name of 
 their testator (s) . 
 
 Again, there has already been occasion to show {t), that How far the 
 the act of one of two executors, in possessing himself of the gxecutor^can 
 testator's effects, is the act of the other, so as to entitle him impose a 
 
 charge on his 
 
 to a joint interest in possession, and a joint right of action, companion, 
 if the effects are afterwards taken away : But it should be 
 observed, that the act of one in taking possession of a chattel 
 real or personal of the testator, cannot create a new liahiliiy 
 and impose a charge on the other personally, and in his own 
 individual character, which, without such act, would never 
 have existed. Therefore, if one executor takes possession 
 of and uses a personal chattel, the other is not liable to the 
 creditors for such act of his co-executor. So if one executor 
 enter and enjoy land demised, and take the profits beyond 
 the rent, the other executor will not be chargeable with the 
 amount as assets to the creditors ; but the one who actually 
 received will alone be responsible (u). Hence, it appears, 
 that with respect to the creditors, the actual possession and 
 use by one of two executors is not in law the possession and 
 
 (p) Godolph. Pt. 2, c. 30, s. 8, transfer b}"^ one of two executors of 
 
 p. 245. Wentw. Off. Ex. 413, railway shares or stock registered 
 
 ] 4th edition. Com. Dig. Adminis- inthenamesof both, of any validity, 
 
 tration (C. 8). since these are governed by the 
 
 (q) 1 Roll. Abr. 618, tit. Devise, Companies Clauses Act : Barton v. 
 
 (B.) pi. 2. Townson v. Tickell, 3 North Staffordshire Ry. Co., 38 
 
 B. & A. 31, 40. Cole v. Miles, 10 C. D. 464. See also Barton v. L. 
 
 Hare, 179. & N. W. Ry. Co., 24 Q. B. D. 77. 
 
 (r) Pannel v. Fen, 1 Eoll. Abr. (/) Ante, p. 786. 
 
 618, Devise, (B.) pi. 3. 1 Rop. (u) See post, Pt. iv. Bk. ii. Ch, 
 
 Leg. 734, 3rd edition. ii. § li. 
 
 (s) ee ante, p. 722. Nor is a 
 
 3 G 2
 
 820 
 
 Of the Power of an Executor. [Ft. iii. Bk. i. 
 
 One of several 
 executors can- 
 not bind the 
 others by his 
 contract. 
 
 Co-adminis- 
 trators. 
 
 use by both, so as to attach a Hability upon both : Accord- 
 ingly if, instead of disposing of a term of the testator, one of 
 the executors takes the actual possession of and enjoys the 
 land demised, such enjoyment is not by law the possession 
 and enjoyment by both, and it does not render both charge- 
 able to the lessor to pay a compensation to him for it, as 
 joint occupiers in their own right {x). 
 
 The question how far a devastavit or receipt of assets by 
 one of several executors can create a liability and impose 
 a charge on his companions, will be considered hereafter, 
 when the subject of the Liabilities of Executors occurs {y). 
 
 It should be further observed, that though one of several 
 executors may dispose of the assets so as to bind the others, it 
 is not to be inferred that one of several executors is the agent 
 of the others, so as to bind them by his several contracts {z). 
 
 A distinction was taken by Lord Hardwicke in Hudson v. 
 Hudson (a), between the power of one of several adminis- 
 trators, and one of several executors, with reference to the 
 latter arising wholly from the testator, and the former wholly 
 from the Ordinary : And his Lordship laid down, on the 
 authority of Lord Bacon (b), that as an administration was 
 in the nature of an office, so if granted to several, they must 
 
 (x) Nation v. Tozer, 1 Crompt. 
 M. & E. 172. 
 
 (y) Post, Pt. IV. Bk. II. § II. 
 
 {z) Turner v. Hardey, 9 M. & 
 W. 770. This was an action for 
 use and occupation, for a quarter's 
 rent from Lady-day to IVIidsum- 
 mer, 1841, to whicli the defendant 
 pleaded that by an agreement made 
 between the plaintiffs, executors 
 of T., and the defendant, the 
 defendant agreed to take of the 
 plaintiffs, executors as aforesaid, 
 the premises in question ; and that 
 it was afterwards agreed between 
 them and W., that W. should be- 
 come tenant to the plaintiffs from 
 Lady-day, 1841, and that the de- 
 
 fendant should be discharged from 
 all liability to subsequent rent ; 
 and that the defendant accordingly 
 gave up possession to W., and the 
 plaintiffs accepted him as tenant : 
 and it was held, that this plea was 
 not proved by evidence that one of 
 the plaintiffs had so agreed to ac- 
 cept W. as tenant in lieu of the 
 defendant. But this case must not 
 be understood as deciding that one 
 of several executors may not alone 
 accept a surrender of a term, the 
 reversion of which belongs to them 
 as executors. See ibid. 773, per 
 Parke, B. 
 
 (a) 1 Atk. 460. 
 
 (b) Elements, vol. iv. p. 83.
 
 Ch. II.] Of Co-Executors. 821 
 
 join in executing the acts of their office (c) ; and, therefore, 
 the release of one would not bind the others, as in the case 
 of co-executors. But in the subsequent case of Willand v. 
 Fenn (d), it was held in the King's Bench, after three argu- 
 ments, that one of several administrators stands on the same 
 ground and foundation with one of several executors. And 
 this decision was recognised by Sir John Strange, M.R., in 
 Jacomh v. Harwood (e). 
 
 The power of an executor is not determined by the death Survivor of 
 
 . several exe- 
 
 of his co-executor, but survives to him (/). And so likewise, cutorsor 
 if administration has been granted to two, and one dies, the ^^^^ 
 other will be sole administrator, and all the power of the 
 office will survive to him (g). 
 
 The ordinary functions incident to the office of executor Exercise of 
 may be exercised by one of several appointed executors, ^^ several 
 although the others renounce : Yet at common law, where a ggfi^an^-*" 
 power was given by Will to executors to sell land, and one of 
 them refused the trust, it was clear that the others could not 
 sell (/t). But the statute 21 Hen. VIII. c. 4, provides, that when one 
 where lands are willed to be sold by executors, and part of renounces: 
 them refuse to be executors, and to accept the adminis- 
 tration of the Will, all sales by the executors that accept 
 such administration shall be as valid as if all the executors 
 had joined. The terms of the statute are, that where part 
 of the executors named in a Will, declaring lands, tenements 
 
 (c) See also In the goods of Greville, 1 Phillim. 126. Stanley 
 Nayler, 2 Robert. 409, Ante, p. v. Bernes, 1 Hagg. 222. It lias 
 364. been held m America that a note 
 
 (d) Cited by Sir John Strange, executed to an intestate may be 
 M. R., in 2 Ves. Sen. 2G7. See a transferred by one of several ad- 
 MS. report of the case in Selw, ministrators : Sanders v. Blain, 6 
 N. P. 767, note (8), 6th edition. J. J. Marsh. 446 : 22 Amer. Dec. 
 
 (e) 2 Ves. Sen. 267, 268. See 86. Murray -y. Blatchford, 1 Wind. 
 also Touchst. 485, 486. Smith v. 583 ; 19 Amer. Dec. 537. 
 Everett, 27 Beav. 454, per Romilly, (/) Flanders i'. Clarke, 3 Atk. 
 M.R. However, Sir .John Nicholl, 509. 
 
 seems, on more than one occasion, (g) Hudson v. Hudson, Cas. 
 
 to have adverted to the distinction temp. Talb. 127. Aiite, p. 411. 
 as still existing: See Warwick v. (h) Co. Litt. 113, a.
 
 822 Of the Power of an Executor. [Pt. iii. Bk. i. 
 
 or hereditaments to be sold by executors, "do refuse to take 
 upon him or them the administration and charge of the 
 same testament and last Will, wherein they be so named to 
 be executors, and the residue of the same executors do 
 accept and take upon them the cure and charge of the same 
 testament and last Will, that then all bargains and sales of 
 such lands, tenements or other hereditaments so willed to 
 be sold by the executors of any such testator, as well here- 
 tofore made, as hereafter to be made by him or them only 
 of the said executors, that so doth accept, or that heretofore 
 hath accepted and taken upon him or them any such cure 
 or charge of administration of any such Will or testament, 
 shall be as good and as effectual in the law as if all the 
 residue of the same executors named in the said testament, 
 so refusing the administration of the same testament, had 
 joined with him or them in making of the bargain and sale 
 of such lands, tenements or other hereditaments so willed 
 to be sold by the executors of any such testator, which 
 heretofore hath made or declared, or that hereafter shall 
 make or declare any such Will of any such lands, tenements 
 or other hereditaments, after his decease, to be sold by his 
 executors." Upon this statute, Lord Coke observes (t) that 
 although the letter of it extend only to cases where executors 
 have a power to sell, yet being a beneficial law, it is by 
 construction extended to cases where lands are devised to 
 executors to be sold (j). It has also been held that the 
 statute extends to copyholds {k). 
 
 In the case of Denne v. Judge (/), a testator devised land 
 to five trustees to sell and apply the money to certain uses, 
 and afterwards made the same persons executors ; the ques- 
 tion was, whether the land passed under deeds of lease 
 and release, purporting to have been executed by all the 
 five trustees, but in fact executed by three of them only ; 
 and it was urged that the case was within the above statute 
 
 (i) Co. Litt. 113, a. De G. & Sm. 230. 
 
 0) See ante, p. 574. (l) 11 East, 288, 
 
 (/c) Peppercorn v. "Wayman, 5
 
 oil. ii.J Of Co-Executors. 823 
 
 of 21 Hen. VIII. c. 4 : But Lord Ellenborough said, that 
 the statute was passed to remedy the inconvemence where 
 some of the executors refuse to act ; but in the present case 
 there was no such refusal : Besides, the estate was not 
 devised to them as executors, to be sold, but as devisees, 
 though they were also appointed executors : They had 
 nothing to do with the land as executors {m). 
 
 If, however, the fund, when raised, had been distributable 
 by them in that character, it would have been otherwise, as 
 far as respects the latter objection to the application of the 
 statute. Thus in Bonifaid v. Greenfield (w), where the tes- 
 tator devised land to four persons and their heirs to sell, and 
 apply the money to the performance of the Will, and, in 
 the conclusion of the Will he appointed the four his execu- 
 tors, it was held, that, on the refusal of one of them to act, a 
 sale by the other three was good. 
 
 It is said by Lord Coke (o), that although one executor 
 refuses, the others cannot sell to him, because he is a party 
 and privy to the Will, and remains executor still. But that 
 position must now be considered as overruled by the decision 
 of the Court of Common Pleas, in Mackintosh v. Barber (j^) • 
 In which case it was further decided, that executors to whom 
 a power is given to sell may, at law, sell to a trustee for 
 themselves, or may sell to one of themselves ; and an appoint- 
 ment accordingly cannot be impeached at law. Whether such 
 an appointment can be supported in equity, must depend 
 upon the circumstances under which the sale was made (q). 
 
 In the case of Granville v. M'Neile (r), where a power. Exercise of 
 contained in a deed of settlement of real estate, enabled one poiT/anew' 
 
 (m) But taking the conveyance {(j) 1 Sugd. on Pow., 141, 6th ed. 
 
 to be by the three trustees only, it And now in this case, as in all 
 
 severed the joint-tenancy, and con- cases in wliich tliure formerly was 
 
 veyed three- fifths of the estate to any variance between the rules of 
 
 be held in common with the two equity and common law, it seems 
 
 remaining parts. that the rules of equity will pre- 
 
 (n) Cro. Eliz. 80. vail. Jud. Act, 1873, s. 25, sub-s. 
 
 (o) Co. Lit. 113, a. 11. 
 
 (p) 1 Bingli. 50. (r) 7 Hare, 15G.
 
 824 
 
 Of the Poiver of an Executor. [Pt. iii. Bk. i. 
 
 tnistee, given 
 to a man, and 
 his executors, 
 when he is 
 dead and one 
 of his execu- 
 tors renounces : 
 
 exercise of 
 power by sur- 
 viving execu- 
 tors : 
 
 liy a single 
 sinrvivor. 
 
 of tliG parties, bis executors, administrators and assigns, on a 
 vacancy to appoint a new trustee, and the party so empowered 
 died, having by his Will named three executors, one of whom 
 renounced probate, it was held by Wigram, V.-C, that a 
 vacancy in the trust having occurred, the two acting executors 
 had power to appoint the new trustee : And his Honor said 
 that, in all such cases, the question is, whether the confi- 
 dence is reposed in the individuals named or in the persons 
 who, de facto, fill the given office : and that, in the present 
 case, the intention plainly was, that those whom the party, 
 empowered in the first instance, trusted to administer his 
 property, should also be entrusted to exercise the power given 
 to him in the settlement ; and that those whom he trusted were 
 the persons who acted, and not those only whom he named. 
 
 Again, it has appeared that if one of two executors dies, 
 the office survives to his co-executor (s). But it is necessary 
 further to enquire, whether, if a power is given to several 
 executors, and one of them dies, the power can be exercised 
 by the survivors or survivor. It is regularly true at common 
 law, that a naked authority given to several cannot survive (/). 
 Therefore, if a man devise his lands to A. for life, and that 
 after his decease the estate shall be sold by the executors, 
 naming them, as by B. and C. his executors, or by B. and C. 
 who are not named executors, in that case, if one of them 
 die during the life of A., the other cannot sell; because the 
 words of the testator would not be satisfied (u). But where 
 this can be eff"ected, a Court of law will relax the rule. 
 Therefore, if three or more executors are appointed, and the 
 devise is, that the estate shall be sold by the executors 
 generally, there the survivors may sell because the plural 
 number of executors remains {v). 
 
 Again, although the authorities are conflicting {x), there 
 
 (s) Ante, p. 821. 
 (0 1 Sugd. Pow. 141, 6th edit. 
 (m) Co. Lit. 113, a. 1 Sugd. 
 Pow. 141, 6th edit. 
 
 (v) Co. Lit. 113, a. 1 Sngd. 
 
 Pow. 142, 6th edit. 
 
 (x) See a case in Dyer, 219, pi. 
 8, in margine. Lock v. Loggin, 1 
 And. 145.
 
 Ch. a] Of Co-Executors. 825 
 
 are not wanting cases to support the validity of the exercise 
 of a power given to executors by a single survivor (?/). 
 Mr. Hargrave in a note to Co. Lit. {z) strongly contends 
 that where a power of selling is given to executors, or to 
 persons, nominatim in that character, the survivor may sell, 
 as the power is annexed to them ratione officii ; and as the 
 office survives, by parity of reason the authority should also 
 survive. And the author of the " Treatise on Powers " (a) 
 observes that the liberality of modern times will probably 
 induce the Courts to hold, that in every case where the 
 power is given to executors, as the office survives, so may the 
 power (&). The same distinguished writer proceeds to state 
 as the result of the cases, that where the authority is given to 
 " executors," and the Will does not expressly point to a joint 
 exercise of it, even a single surviving executor may execute 
 it : But where the authority is given to them nominatim, 
 though in the character of executors, yet it is at least doubtful 
 whether it will survive. In the case on this subject of 
 Brassey v. Chalmers (c) a power to sell real estate had been 
 given by a testator "to my executors hereinafter named with 
 the approbation of my trustees for the time being : " And it 
 was held by Romilly, M.R., upon the context of the Will, 
 that the power could not be exercised by the survivor of the 
 two appointed executors : His Honor, after stating the rule 
 that a naked power given to several cannot be executed by the 
 survivors, laid it down as equally settled that if the power 
 be annexed to the office of executor, any persons who fill the 
 office will have the power ; but that the difficulty was, in cases 
 where the power is given to certain persons by name and 
 
 (y) Houel v. Barnes, Cro. Car. (a) 1 Sugd. Pow. 144, 6th edit. 
 
 382. S. C. nom. Barnes' case, W. {h) So where the power to exe- 
 
 Jones, 352, pi. 3. Anon. 2 Leon. cutors to sell arises by implica- 
 
 220, pi. 276. Milward v. Moore, tion, (see ante, p. 575,) the power 
 
 Sav. 72 : and see Anon. Dyer, to the survivor to sell will arise in 
 
 371, h., pi. 3. 1 Sugd. Pow. 142, the same way : Forbes v. Peacock, 
 
 6th ed. See also Eaton r. Smith, 11 M. & W. 630. 
 
 2 Beav. 236. (r) 16 Beav. 231. 
 
 (.) 113, a.
 
 826 
 
 Of the Power of an Executor. [Pt. in. Bk. i. 
 
 they are also appointed executors, to ascertain whether the 
 power is given to the executor or to the [person : In the 
 present case, the learned judge looking at the words used by 
 the testator, both in the passage which conferred the power 
 and in other parts of the Will, was of opinion that the power 
 was given to the two executors nominatim, and not in their 
 executorial capacity. But the Lords Justices, on appeal {d), 
 dissented from this oijinion. 
 /ex. CK^dv,^uiA. And now by section 38 of the Conveyancing and Law of 
 
 Property Act, 1881 (44 & 45 Vict. c. 41), where a power or 
 trust is given to, or vested in, two or more executors or trustees 
 jointly, then, unless the contrary is expressed in the instru- 
 ment (if any) creating the power or trust, the same may be 
 exercised or performed by the survivor or survivors of them 
 for the time being. This provision, however, applies only to 
 executorships and trusts constituted after, or created by 
 instruments coming into operation on or after, 1st Jan. 1882. 
 
 Fxeciitors 
 must all join 
 in bringing 
 actions. 
 
 If there are several executors appointed by the Will, they 
 must all join in bringing actions (c) ; even though some be 
 infants (/). 
 
 Where, however, one executor of several has alone proved 
 the will, he may sue without making the other executors 
 parties, although they have not renounced (r/). If one of 
 several executors who have all proved the will sue alone, the 
 defendant may apply to the Court for an order that the other 
 executor or executors may be joined as co-plaintiffs {h). 
 
 (d) 4 De G. M. & G. 528. 
 
 (e) Bro. Exors. 88. 
 
 (/) Smith V. Smith, Yelv. 130. 
 As to one of several executors 
 making a summary application to 
 the court, see Ee Bunting, 2 A. 
 & E. 467. 
 
 (g) D. C. P. 6th ed. 224. 
 
 (h) E. S. C. 1883, Ord. XYI. 
 r. 11. This procedure is substi- 
 tuted for the plea in abatement 
 and demurrer for Avant of parties 
 
 existing prior to the Judicature 
 Act. It is of course subject to the 
 same rules with respect to show- 
 ing that the party whose joinder 
 is claimed is alive and within the 
 jurisdiction as were in force with 
 regard to the old plea, and the 
 necessary facts should now be 
 shown by affidavit in support of 
 the application. And fui'ther by 
 Ord. XVI. r. 11, the consent of the 
 person added as plaintiff must be
 
 Ch. II.] Of Co-Executors. 827 
 
 Generally speaking, it is clear that one executor cannot When one exe- 
 
 ^ cutor may sue 
 
 sue or be sued by bis co-executor (0 : neither, after the the other : 
 death of one of several executors, can bis executor be sued 
 by the surviving co-executor for a debt due to their testa- 
 tor (/i). Nevertheless, if a debtor makes his creditor and 
 another his executors, and the creditor neither proves the 
 Will nor acts as executor, he may bring an action against 
 the other executor {I) : nor is it necessary to enable him so 
 to do, that he should renounce in the Court of Probate {m). 
 
 In a case where the survivor of two executors, who had on bond given 
 taken out administration to the other, filed a bill to set aside a on loan of as- 
 mortgage of part of the assets made by the deceased executor ^^2^0'^^°^'^^ *** 
 as having been a breach of trust, it was held that the fact of 
 the plaintiff having taken out the administration did not dis- 
 qualify him from maintaining the suit («). 
 
 In Gleadow v. Atkin (0) an action of debt, on a common 
 money bond, was brought by the executor of the obligee 
 against the executors of the obligor : And it was held by the 
 Court of Exchequer, on general demurrer, that the loan by 
 one of the executors to the other was a misappropriation of 
 the fund, of which the executor of the obligee was liable until 
 the money was laid out on real and sufficient security ; and 
 consequently that he had a right to sue on the bond to 
 protect himself. 
 
 Where there are several executors, they may agree that Demise by 
 one of them shall hold the land devised to them in trust their co- 
 at a fixed rent, and if the rent falls into arrear, he may be **^^'^"*°'^"- 
 distrained upon in respect of it (p). If, however, executors, 
 
 obtained, unless he is under dis- (m) Rawlinson v. Shaw, 3 T. R. 
 
 ability. Chitty's Archbold, 14th 557. 
 
 ed. 1019, 1020. (n) Miles v. Dumford, 2 De G. 
 
 (i) Wentw. Off. Ex. 75, 14th M. & G. 641, by the Lords Jus- 
 edit. Ante, Tp. 186. See also poj<, tices, overruling the decision of 
 Pt. V. Bk. I. Ch. ir. Kindersley, V.-C., 2 Sim. N. S. 
 
 (k) Wentw. Off. Ex. 75, 14th 234. 
 
 edition. (o) 2 Crompt. & Jerv. 548. 
 
 (l) Dorchester v. Webb, W. (p) Cowper d. Fletcher, 34 L. J. 
 
 Jones, 345. (N. S.) Q. B. 187.
 
 828 Of the Power of an Executor. [Pt. in. Bk. i. 
 
 having been directed by the will to sell the real estate, allow 
 one of their number to hold stores and buildings at less than 
 a fair occujjation rent, they are chargeable with what would 
 have been a fair occupation rent {q). 
 
 (q) De Cordova v. De Cordova, 4 App. Cas. 692.
 
 829 
 
 CHAPTER THE THIRD. 
 
 OF THE POWER AND AUTHORITY OF AN EXECUTOR OF AN EXE- 
 CUTOR ; — OF AN ADMINISTRATOR DE BONIS NON : AND OF A 
 LIMITED ADMINISTRATOR. 
 
 As to the power and authority of the executor of an exe- Executor of 
 cutor : In all cases, except of special trust and authority 
 without the office of executorship, the executor of an exe- 
 cutor, how far soever in degree remote, stands as to the 
 points both of being, having and doing, in the same state and 
 plight as the first and immediate executor (a). 
 
 " But where, by a Will,'' says the author of the Office of when he can 
 an Executor {h^" a special trust is recommended to an exe- po^er!^ 
 cutor, as to sell laud, this not performed in his lifetime 
 shall not be performable by his executor : contrariwise of 
 an interest, as to take the profits of lands for certain 
 years towards payment of debts and legacies" (c). In the 
 case of Cole v. Wade (d), real and personal estate were by 
 Will given to two trustees, who were appointed executors, 
 their executors, administrators, and assigns for the benefit of 
 such relations of the testator as the trustees and executors 
 in their discretion should think proper : And it was declared 
 that the disposition should be entirely in the discretion of 
 the said trustees and executors, and the heirs, executors, 
 and administrators of the survivor of them ; and the testator 
 gave power to his trustees and executors, and the survivor 
 of them, and the heirs, executors, and administrators of such 
 survivor, to sell or mortgage the estates ; and the trustees 
 (by name), or the survivor of them, or the heirs, executors 
 
 (a) Wentw. Off. Ex. c. 20,p. 4G2, tinction between an interest and 
 
 14th edit. an authority only, Style v. Tom- 
 
 (6) C. 20, p. 462, 14th edit. son, Dj-er, 210, a. 
 
 (c) See also as to this dis- (d) 10 Ves. 27.
 
 830 Of the Power of an Executor. [Pt. in. Bk. i. 
 
 or administrators of such survivor, were to convey and pay 
 the whole of the relations within fifteen years : The sur- 
 viving trustee, by his Will, devised the first testator's real 
 estate to A. & B., their heirs and assigns, and his personal 
 estate to them, their executors, administrators, and assigns, 
 upon the trusts of the first \Yill, and appointed them his 
 trustees for that specific purpose only : and it was contended, 
 that they might execute the power: The Master of the 
 Rolls {Sir W. Grant), decided the contrary : he said, that 
 wherever a power is of a kind that indicates a personal con- 
 fidence, it must prima facie be understood to be confined to 
 the individual to whom it is given, and will not, except by 
 express words, pass to others, to whom, by legal transmis- 
 sion, the same character may happen to belong : The power 
 was not appendant to the estate ; by itself it was incapable 
 of alienation : and it was only quasi personcB designates 
 that it could go to the heir : The devisees did not answer 
 that description : The power, therefore, was not vested in 
 them (e). 
 
 With respect, however, to a power to sell land, Hargrave, 
 in a note to Coke upon Littleton (/), cites some authori- 
 ties (g) to show that such a power given to the executors 
 shall pass to their executors or administrators (h). Again, 
 it has appeared in a former part of this Treatise, that a 
 
 (e) 1 Sngd. Pow. 148, 6th. edit. in principle overruled Cooke v. 
 Tills opinion of Sir W. Grant was Crawford. See Osborne to Row- 
 approved of by Lord Eldon, in lett, 13 CD. 774, 786, per Jessel, 
 Walter v. Maunde, 19 Ves. 425. M.R. Mortimer v. Ireland, 6 
 See further on the question, wlie- Hare, 196. Wilson v. Bennett, 5 
 ther the executor of an executor, De G. & Sm. 475. Macdonald r. 
 or the devisee of a trustee, can Walker, 14 Beav. 556. Be Burtt, 
 execute a power or trust originally 1 Drewr. 319. Forbes v. Forbes, 
 conferred on his testator, or whe- 18 Beav. 552. Saloway v. Straw- 
 ther it is a personal confidence l)ridge, 1 Kay & J. 371. Hall v. 
 whicb is not transmissible with the ]\Iay, 3 Kay & J. 590. 
 office or estate, Down v. Worrall, (/) 113, a. 
 1 M. & K. 561. Cooke v. Craw- (g) Kelw. 44. 2 Brownl. 194. 
 ford, 13 Sim. 91. Titley v. Wol- (/;) See also the cases collected 
 stenholme, 7 Beav. 425, 433, which siqmj, note (<?).
 
 Ch. III.] Of an Administrator de bonis non. 881 
 
 power in a Will to sell or mortgage, without naming a 
 donee, will, unless a contrary intention appear, vest in the 
 executor, if the fund is to he distributahle hy him (i) : And 
 it seems, that in such case, the executor of the executor may 
 sell, the intent being, that the power shall be executed by 
 him to whose hands the money is to come (k). 
 
 Where a power is annexed to an interest in the donee, a power an- 
 and is originally authorised to be executed by the donee of i^t^erest! ^° 
 the power and his assigns, the power will pass with the 
 interest to any person who comes to the estate under him, 
 although there be twenty mesne assignments ; and whether 
 the claimant is an assignee in fact, or an assignee in law, as 
 an heir or executor (l). In a case where, upon a fine, the 
 use of lands was limited to A. for eighty years, with a power 
 to A. and his assigns to make leases for lives ; and A. 
 assigned over to B., who died, and made C. his executor, and 
 then the executor assigned over to D. ; it was holden, that 
 D. might well exercise the power (m). 
 
 With regard to the power and authority of an adminis- Power of ad- 
 trator de bonis non ; By the grant of that species of admi- ^onis non 
 nistration, the administrator becomes the only personal 
 representative of the original deceased : and, with respect to 
 the estate left unadministered by the former executor or 
 administrator, he has the same power and authority as the 
 original representative ; for he succeeds to all the legal rights 
 which belonged to the former executor or administrator in his 
 representative character {n). 
 
 With regard to the power and authority of limited and of Power of 
 special administrators, it is difficult to lay down any general special ad- 
 proposition : and little more can be done than to refer to ""^I'^trators. 
 
 (i) Ante, p. 575. See also Tyl- (m) Howe v. Whitebauk, 1 
 
 den V. Hyde, 2 Sim. & Stu. 238. Freem. 476. 
 
 Qi) 1 Sugd. Pow. 134, 6th edit. (?i) Catherwood v. Cliabaud, 1 
 
 1 Pow. Dev. 243, Jarinan's edit. E. & C. \:a, by Bayley, J. See 
 
 (0 1 Sugd. Pow. 223, Gth edit. ante, p. 792, d seq.
 
 832 Of the Power of an Executor. [Pt. iii. Bk. i. 
 
 the authorities upon the subject which have already been 
 adduced, in treating of the constitution of these several 
 kinds of administration, with respect to the power of an 
 administrator appointed as the attorney of the party entitled 
 durante absentia (o), of an administrator durante minore 
 (State (p), of an administrator _2Je»(:Zeji<<3 lite (q), and of 
 an administrator limited to substantiate proceedings in 
 equity (r). 
 
 It is enacted by statute 38 Geo. III. c. 87, s. 7, that the 
 person to whom administration durante absentia (s) shall be 
 granted under the provisions of the Act, shall have the 
 same powers vested in him as an administrator hath by 
 virtue of an administration granted to him durante minore 
 estate of the next of kin. 
 
 (o) See ante, pp. 436, 437. (r) Ante, p. 446. 
 
 (p) Ante, p. 423, et seq. (s) See ante, p. 434. 
 
 (q) Ante, p. 430.
 
 833 
 
 CHAPTER THE FOURTH. 
 
 OF THE POWER OF A FEME COVERT EXECUTRIX OR 
 ADMINISTRATRIX. 
 
 DINCE the commeucement of the Married Women's Pro- Capability of a 
 
 » i -inofi -1 1 J J- married woman 
 
 perty Act, 1882, a married woman may be, and act as, ^^ ^^ j^j^ 
 executrix or administratrix of a deceased person as if she executrix or 
 
 ^ admiaistratrix: 
 
 were a feme sole, without the consent or control of her 
 husband. This power is given to her by sections 1 (2) and provisions of 
 24 of the Act, which provide: 1 (2) that "A married Women?So- 
 woman shall be capable of entering into and rendering pertyAct,i882, 
 
 ^ ° witli respect to 
 
 herself liable in respect of, and to the extent of, her separate such capability 
 property on any contract, and of suing and being sued either ^omen. 
 in contract, or in tort, or otherwise, in all respects as if she 
 were a feme sole, and her husband need not be joined with 
 her as plaintifif or defendant, or be made a party to any action 
 or other legal proceeding brought by, or taken against, her." 
 
 And 24, that " The word ' contract ' in this Act shall 
 include the acceptance of any trust or of the office of 
 executrix or administratrix, and the provisions of this Act 
 as to liabilities of married women shall extend to all liabili- 
 ties by reason of any breach of trust or devastavit committed 
 by any married woman being a trustee, or executrix, or 
 administratrix, either before or after her marriage, and her 
 husband shall not be subject to such liabilities unless he has 
 acted or intermeddled in the trust or administration." 
 
 And by section 18 of the same Act power is given to a 
 married woman who is an executrix or administratrix ulono 
 or jointly with any other person or persons of the estate of 
 any deceased person, to sue or bo sued, and transfer, or join 
 in transferring annuities, stocks, shares, debentures, &c., 
 
 W.E. — VOL. I. 3 11
 
 834 
 
 Of the Power of an Executor. [Pt. iii. Bk. i. 
 
 The law on 
 this subject 
 prior to the 
 Married 
 Women's Pro- 
 pertyAct,lS82. 
 
 A married 
 woman suing 
 without her 
 husband being 
 joined not 
 liable to give 
 security for 
 costs. 
 
 -without her husband as if she were a feme sole. This 
 enactment supersedes the old law by which a married woman 
 could not take upon herself the ofl&ce of executrix or adminis- 
 tratrix without the consent of her husband. By that law, 
 since the husband was answerable for the wife's acts, she was 
 not capable, though she had by his permission assumed the 
 office of executrix or administratrix, of doing any act of 
 administration to the deceased which might have been to the 
 prejudice of her husband, without his concurrence. The 
 reason for this is now at an end, since by the Act as above 
 stated, a husband is not subject to the liabilities incurred by 
 the mfe by reason of any breach of trust or devastavit either 
 before or after her marriage, unless he has himself acted or 
 intermeddled in the trust or administration. It also follows 
 that since the Act, as he is no longer under any liability for 
 his wife's breach of trust or devastavit as above stated, a 
 husband has no longer any power of disposition over the 
 personal estate vested in his Avife as executrix or adminis- 
 tratrix, inasmuch as such power of disposition which he had 
 prior to the Act, was given to him for the purpose of 
 administering in his wife's right for his own safety. 
 
 A married woman suing as plaintiff without her husband 
 being joined since the Married Women's Property Act, 1882, 
 is not liable to give security for costs (a). 
 
 The law on the subject of the power of a feme covert as 
 executrix or administratrix, and the power of the husband 
 of such executrix or administratrix, as it existed prior to the 
 Married Women's Property Act, 1882, is stated and discussed 
 with the authorities bearing upon it in the former editions of 
 this Work, Pt. iii. Bk. i. Chap. iv. 
 
 (rt) Threlfall v. AMlson, 8 P. D. 18.
 
 83^ 
 
 BOOK THE SECOND. 
 
 OF THE DUTIES OF AN EXECUTOR OR ADMINISTRATOR, WITH 
 RESPECT TO THE FUNERAL : THE PROVING OF THE WILL 
 AND THE TAKING OUT ADMINISTRATION : THE INVENTORY 
 AND THE PAYMENT OF DEBTS. 
 
 CHAPTER THE FIRST. 
 
 OF THE FUNERAL : OF PROVING THE WILL, AND TAKING OUT 
 ADMINISTRATION : AND OF THE INVENTORY. 
 
 SECTION I. 
 
 Of the Funeral. 
 
 iT is now proposed to consider the Duties of an executo r 
 or administrator. And first : He must hury the deceased in 
 a manner suitable to the estate he leaves behind him (a). 
 
 (a) 2 Black. Comm. 508. The 
 executors are entitled to the pos- 
 ession, and are responsible for the 
 burial, of a dead body. There is 
 no property in a dead body, and a 
 direction by ■will as to the dispo- 
 sition of the testator's body cannot 
 be enforced : Williams v. Williams, 
 20 C. D. 659. In that case, Kay, 
 J., doubted whether the burning of 
 a body is lawful. Tliis point was 
 decided by Stephen, J., in Reg. v. 
 Price, 12 Q. B. D. 247, wliere it 
 was held that it is no misdemean- 
 our to burn a dead body instead of 
 
 burying it, unless it is burnt in 
 such a way as to amount to a pub- 
 lic nuisance. It would seem from 
 the above decision, which estab- 
 lishes the legality of cremation, 
 that an executor who cremates the 
 dead body of his testator either in 
 accordance with directions con- 
 tained in the will or in the exer- 
 cise of his own discretion, is en- 
 titled to be paid the reasonable ex- 
 penses of so doing, in the same 
 manner as he would be entitled to 
 be paid the expenses of burial. 
 
 3 H 2
 
 836 
 
 Of the Duties of an Executor. [Pt. ill. Bk II. 
 
 What expenses Funeral expenses, says Lord Coke {h), according to the 
 as^a^aiiisr '^ degree and quality of the deceased, are to be allowed of the 
 creditors: goods of the deceased, before any debt or duty whatsoever. 
 
 But the executor or administrator is not justified in incur- 
 ring such as are extravagant, even as it resi3ects legatees or 
 next of kin entitled in distribution (c) : Nor, as against 
 creditors, shall he be warranted in more than are absolutely 
 necessary. In strictness, said Lord Holt, no funeral ex- 
 penses are allowed in the case of an insolvent estate, except 
 for the coffin, ringing the bell, and the fees of the parson, 
 clerk, and bearers : but not for the pall or ornaments [d). 
 And in the year 1695, it was stated that Baron Powel on 
 his circuit would allow but lis. &d. under a plea of pl^ne 
 administravit ; which he said was all the necessary charge (e). 
 However, it appears that Lord Holt, where under that plea, 
 150/. was charged for the testator's funeral, said that at least 
 
 (b) 3 Inst. 202. In the case of 
 persons dying domiciled in any 
 part of the United Kingdom on 
 and after 1st June, 1888, the 
 executor or administrator has 
 power to deduct debts and funeral 
 expenses from the value of the es- 
 tate and effects as specified in the 
 account delivered by him. The 
 funeral expenses to be deducted 
 " shall include only such expenses as 
 are allowable as reasonable funeral 
 expenses according to law." 44 
 Vict. c. 12, s. 28. 
 
 " It seems clear that expenses 
 not directly relating to the funeral, 
 such as for embalming the body 
 of the deceased and bringing it 
 home from abroad for burial in 
 this country, or for putting his 
 family and servants into mourn- 
 ing, or for erecting a monument 
 to liis memory, are not a proper 
 deduction mider this section, al- 
 
 though if an executor has incurred 
 them under the directions in the 
 will he may be entitled to retain 
 them out of the estate as against 
 the creditors." Hanson's Revenue 
 Acts, 1880 and 1881, p. 31. 
 
 (c) See Stackpoole v. Stackpoole, 
 4 Dow. 227. A husband, executor 
 of his wife's will made under a 
 testamentary power of appoint- 
 ment, is entitled to retain out of 
 her estate the expenses of her 
 funeral though such estate is in- 
 sufficient for creditors and her will 
 does not contain any charge for 
 debts and funeral expenses : Re 
 M'Myn, 33 C. D. 575. 
 
 {d) Shelly's case, 1 Salk. 296. 
 Perhaps, observes Dr. Burn, the 
 expenses of the shroud and dig- 
 ging the grave ought to have been 
 added : 4 Burn, E. L. 348, 8th 
 edit. 
 
 (e) Anon. Comberb. 342.
 
 Ch. I. § I.] Of the Funeral. 837 
 
 140/. ought to be deducted ; for lOL is enough to be allowed 
 for the funeral of one in debt (/). 
 
 Lord Hardwicke in Stag v. Punter (g), upon exceptions to 
 a Master's report for not allowing 60/. for the testator's 
 funeral, said, "At law, where a person dies insolvent, the 
 rule is, that no more shall be allowed for a funeral than is 
 necessary ; at first only 40s., then 5/., and at last 10/. (/i). 
 I have often thought it a hard rule, even at law, as an exe- 
 cutor is obliged to bury his testator before he can possibly 
 know whether his assets are sufficient to pay his debts : But 
 this Court is not bound down by such strict rules, especially 
 when a testator leaves great sums in legacies which is a 
 reasonable ground for an executor to believe the estate is 
 solvent : As this is the case here, I am of opinion that sixty 
 pounds is not too much for the funeral expenses, especially 
 as the testator had directed his corpse should be buried at a 
 church thirty miles from the place of his death." 
 
 In Hancock v. Podmore (r), issue was taken, in an action, 
 by a creditor against an executor, on a plea of j^/cnc admi- 
 nistravit, and it was proved that assets to the amount of 
 129/. had come to the hands of the defendant, and that he 
 had paid 55/. for probate duty, and 79/. for funeral expenses : 
 The deceased had been a captain in the army, and the 
 question was, whether the defendant could, as against a 
 creditor, apply so large a sum as 79/. to such a purpose : The 
 Court of King's Bench was of opinion that the sum was too 
 great to be allowed : But Mr. Justice Bayley, in delivering 
 the judgment of the Court, observed, that although the rule 
 is, that, as against a creditor, no more shall be allowed for a 
 funeral than is necessary, yet in considering what is necessary, 
 regard must undoubtedly be had to the degree and condition 
 
 (/) Tlml. a MS. case of Smith v. Davies, 
 
 (g) 3 Atk. 119. Middlesex Sittings after M. T. 10 
 
 (h) But in Buller's N. P. 143, Geo. II., is mentioned, where tliis 
 
 it is said that the usual method latter sum was allowed by Tyord 
 
 is to allow five pounds : and in Hardwicke himself. 
 
 Selwyn's N. P. 776, v. 18, 6th edit., (r) 1 B. & Ad. 260.
 
 838 Of the Duties of an JExecutor. [Pt. iii. Bk. ii. 
 
 in life of the party ; and his Lordship ohserved that the sum 
 of 10^,, mentioned hy Lord Hardwicke as the established 
 allowance in his time, might perhaps, at the present day, be 
 less than what should be reasonably allowed for a person of 
 condition : The learned Judge proceeded to intimate, that 
 the Court thought 201. would be a proper sum for the funeral 
 of a person in the degree and consideration of life of this 
 testator (k). 
 
 It must not, however, be understood that the Court, in 
 Hancock v, Podmore, laid it down as a rule, that even the 
 sum of 20Z. should be the limit of the allowance, where the 
 estate is insolvent ; but that it was the proper limit under 
 the circumstances of that case : 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 (l). 
 
 In Bissett v. Antrohus [m), Sir L. Shadwell, V.C., refused 
 to allow 2,210?. for the funeral expenses of a deceased noble- 
 man, whose personal estate was believed to be solvent at his 
 death, but ultimately, from unforeseen circumstances, proved 
 to be insolvent : And his Honor referred it to the Master to 
 inquire and state what sum ought to be allowed, 
 as against AVith respect to allowances for funeral expenses, where 
 
 legatees, &c. there are assets sufficient, as against other persons than 
 creditors: In OJfley v. Offley (ji), there had been 600Z. laid 
 out in Mr, OfBey's funeral and the Court decreed that sum 
 to be a debt to affect the trust estate, Mr. Offley being a man 
 
 (k) See Yardley v. Arnold, & M. 612. See also Eeeves v. 
 
 Carr. & M. 434, 438, per Parke, B. Ward, 2 Scott, 395. 
 
 Accord. (m) 4 Sim. 512. 
 
 (0 Edwards v. Edwards, 2 Cr. (n) Prec. Chan. 26.
 
 Ch. I. § I.] Of the Funeral 839 
 
 of great estate and reputation in his county, and being buried 
 there : but if he had been buried elsewhere, it seemed his 
 funeral might have been more private, and the Court would 
 not have allowed so much (o). 
 
 In Paice v. The Archbishop of Canterbury {ji), a payment 
 of 93?. 12-9. Qd. for mourning rings distributed among the 
 relations and friends of the deceased, was allowed by Lord 
 Eldon to the executors : The Will had not given any direc- 
 tions on the subject, but committed " any thing not speci- 
 fied " to the discretion of the executors {q). 
 
 In Mullick v. Mullick (r), on an appeal to the Privy 
 Council from an order of the Supreme Court of Bengal, it 
 was held, with respect to the expenses of the funeral obse- 
 quies of a Hindoo testator, that, as the Will gave no directions 
 how they were to be performed, the only question to be 
 considered was, whether the sums allowed for their per- 
 formance were more than had usually been expended at the 
 funerals of persons of the same rank and fortune as the 
 deceased. 
 
 The question of the liability of an executor or adminis- Liability of 
 trator, for the expenses of the funeral of the deceased, will funeral* ex°^ 
 be considered in a subsequent part of this Treatise (s). penses. 
 
 (o) See Stackpoole v. Stackpoole, law, on behalf of the executor in 
 
 4 Dow, 227. Bridge v. Brown, 2 an action brought against him for 
 
 Y. &, Coll. C. C. 181. the recovery of such demand. See 
 
 (p) 14 Ves. 364. also Bridge v. Brown, 2 Y. & Coll. 
 
 {q) In Johnson v. Baker, 2 Carr. C. C. 181, 186, as to the expense 
 
 & Payne, 207, Best, C. J., held of erecting a tombstone. In Pitt 
 
 that a demand for mourning, fur- v. Pitt, 2 Cas. temp. Lee, 508, Sir 
 
 nished to the widow and family of 0. Lee allowed a widow for her 
 
 the testator, is not a i'uneral ex- mourning, in her account, as ad- 
 
 pense, such as can be claimed ininistratrix, in the Ecclesiastical 
 
 against the estate by the executor, Court, 
 if lie gives the order for it ; and, (r) 1 Knapp, 24r). 
 
 consequently, that a legatee, who (s) Post, Pt. iv. Bk. ii. Ch. ii. 
 
 had not received his legacy, was a § i. 
 competent witness, under the old
 
 840 
 
 Of the Duties of cm Executor. [Pt. iii. Bk. ii. 
 
 55 Geo. III. c. 
 184. Penalty 
 for not proving 
 Wills or 
 taking letters 
 of administra- 
 tion, within a 
 given time. 
 
 Power of an 
 executor to 
 compel pro- 
 duction of 
 testamentary 
 papers. 
 
 SECTION n. 
 
 Of Proving the Will and taking out Administration. 
 
 By Stat. 55 Geo. HI. c. 184, s. 37, it is enacted, "that if 
 any person shall take possession of, and in any manner 
 administer, any part of the personal estate and effects of any 
 person deceased, without obtaining probate of the Will or 
 letters of administration of the estate and effects of the 
 deceased within six calendar months after his or her decease, 
 or within two calendar months after the determination of any 
 suit or dispute respecting the Will, or the right to letters of 
 administration, if there shall be any such, which shall not be 
 ended within four calendar months after the death of the 
 deceased ; every person so offending shall forfeit the sum of 
 one hundred pounds, and also a further sum, at and after the 
 rate of ten pounds per centum on the amount of the stamp 
 duty payable on the probate of the Will or letters of adminis- 
 tration of the estate and effects of the deceased." [See also 
 Stat. 28 & 29 Vict. c. 104, s. 57, ante, p. 538.] 
 
 The power of an executor to compel the production of Wills 
 and other testamentary papers, for the purposes of probate, 
 and the mode of doing so, when the instruments happen to 
 be in the custody of other persons, have been pointed out in 
 a previous part of this work {t). 
 
 SECTION III. 
 
 Of the making of an Inventory by the Executor or 
 Administrator. 
 
 The statute 21 Hen. YIII. c. 5, provides for the making 
 of inventories by executors and administrators of all the goods, 
 chattels, wares, merchandises as well moveable as not move- 
 able whatsoever that were of the deceased, and by stat. 22 5: 
 23 Car. II., c. 10, s. 1, an administrator must have entered 
 into a bond conditioned amongst other things for his ex- 
 
 {t) Ante, p. 258, et aeq.
 
 Ch. I. § III.] 
 
 Of the Invent07vj. 
 
 841 
 
 hibiting into the Eegistry of the Court, at or before a day 
 specified, a true and perfect inventory of the goods, chattels, 
 and credits of the deceased come to his possession (w). The 
 bond given under the Court of Probate Act is conditioned to 
 make the inventory when lawfully called on, and to exhibit 
 the same whenever required by law so to do (r). 
 
 The Ancient Ecclesiastical Law was very strict with respect 
 to the making of inventories (x) ; and it will be observed, that 
 that statute required executors or administrators to exhibit 
 inventories, as part of their duty, without any proceeding to 
 call upon them to do so (y). The old practice of the Prerogative 
 Court of Canterbury was to require an inventory to be exhi- 
 bited before probate was granted ; and this continued prevalent 
 in some country jurisdictions (z). 
 
 And according to the modern practice, neither the executor in what cases 
 
 , . . , , . 1 1 •! •, • , and by whom 
 
 nor admmistrator, m general cases, exhibits any inventory tjig exhibiting 
 whatsoever, unless he be cited for that purpose in the Spiritual ^" inventory 
 
 •'•-■'■ compellable. 
 
 Court, at the instance of a party interested (a). But, 
 
 («) As to the account of par- 
 ticiilars of personal estate, required 
 with the affidavit from the person 
 applying for probate or letters of 
 administration in England, see 
 43 Vict. c. 14, s. 10, ante, p. 503. 
 
 (v) See Probate Eules and 
 Orders, Form XVI. 
 
 (x) See Swinb. Pt. 6, s. 6, s. 8, 
 s. 9 : and the consequence of neg- 
 lecting to make one, seems to have 
 been to prevent the executor from 
 relying on want of assets : See 
 Ibid. Pt. 3, 8. 17, pi. 8. Even the 
 temporal Courts formerly consi- 
 dered the neglect of this duty in a 
 light unfavourable to the party, 
 especially where there was a defi- 
 ciency of assets ; and althougli not 
 conclusive on him, yet exposing 
 him to imputation : Orrr. Kaiiies, 
 2 Ves. Sen. 19.3. 
 
 (?/) An administrator wlio neg- 
 lected to exhibit his inventory liy 
 
 the time specified in the bond 
 given under the statute of Car. II. 
 thereby incurred a breach of the 
 condition without any citation. 
 See Eitchie v. Rees, 1 Add. 152. 
 Secus, as to the bond given under 
 the Court of Probate Act. In the 
 goods of Jones, 3 Sw. & Tr. 28. 
 Baker v. Brooks, ih, 32. 
 
 (2) Phillips V. Bignell, 1 Phil. 
 240, by Sir John Nicholl. 
 
 (a) Phillips V. Bignell, 1 Phil. 
 240. Toller 250. However, the 
 Court may, in some instances, re- 
 quire ex officio, that an inventory 
 shall be exhibited : 1 Phillim. 240. 
 In the goods of Williams, 3 Hagg. 
 217. Acastor v. Anderson, 1 Ro- 
 bert. 674. And in order to ex- 
 onerate himself from all liability, 
 it is always most prudent for the 
 executor or administrator to exhi- 
 bit it before a final settlement : 
 Kenny v. Jackson, ] Hagg. 106.
 
 842 Of the Duties of an Executor. [Pt. in. Bk. ii. 
 
 although inTentories are not now requh-ed in practice to be 
 exhibited ^yithout being so called for, yet still an executor or 
 administrator is compellable to exhibit one at the prayer of 
 any person having an interest, or even the appearance of an 
 interest {h). Thus, the personal representative of the 
 residuary legatee of him who was the residuary legatee of 
 the original testator has sufficient interest for the purpose of 
 calling on his personal representative to exhibit an inven- 
 tory (c). Again, it has been laid down in a variety of cases, 
 that a probable or contingent interest will justify a party in 
 calling for an inventory and account {d). 
 
 Thus, if a creditor swears to certain sums due from the 
 deceased to him, it is enough to entitle him to an inventory, 
 though the debt be contested {e). So where the assignees 
 of a bankrupt made an affidavit of a debt due from the 
 deceased to the bankrupt, the administrator was assigned 
 to exhibit an inventory, notwithstanding the Statute of 
 Limitations had run out since the administration was 
 granted {/). 
 
 So the Court will compel an executor to bring in an 
 inventory, &c., at the suit of a creditor by a bond of the 
 testator, notwithstanding its alleged invalidity; and though 
 a suit is actually commenced on the bond, and then depend- 
 ing at common law {g). And the Court will not notice the 
 
 (5) Phillips r. Bignell, 1 Phil. (/) Phillipson v. Harvey, 2 Cas. 
 
 241. Gale v. Luttrell, 2 Add. temp. Lee, 344. See also Wain- 
 
 236. ford v. Barker, 1 Ld. Kaym. 232. 
 
 (c) Winchlow v. Smith, 1 Gas. (f/) Gale v. Luttrell, 2 Add. 234. 
 
 temp. Lee, 417. See also Oughton, tit. 240, s. 9, 
 
 (rf) Salter v. Sladen, Prerog. M. 10. Accordingly, an inventory 
 
 T. 1792. Snow v. Strutt, Prerog. and account was ordered on the 
 
 H. T. 1793, cited 1 Phil 241, jjfr application of a party, who, 
 
 curiam. Myddleton v. Rushout, 1 twenty-four years after the death 
 
 Phil. 244. Reeves v. Freeling, 2 of the testator, had commenced an 
 
 Phil. 57. Burgess v. Marriott, 3 action against his executors on a 
 
 Curt. 424. covenant hy him by way of 
 
 (e) Smith v. Price, 1 Gas. temp. guarantee, the object of the appli- 
 
 Lee, 569. Hackman v. Black, 2 cant being to ascertain, whether 
 
 Gas. temp. Lee, 251. there were any assets before he
 
 Ch. I. § III.] Of the Inventor}/. 843 
 
 effect of any release which a legatee may have given (h). 
 Likewise, an executor who is also residuary legatee may call 
 on his co-executor for an inventory (?) : and so he may, 
 perhaps, without any special interest (k). 
 
 But in Boon's Case (/), where a legacy was to be paid at 
 three several payments, and the executor having made two, 
 and tendered the third, was cited by the legatee to bring in 
 an inventory, it was holden by the Delegates, and also on 
 a Commission of Keview, that there was no need of an 
 inventory at his instance. So in Fleet v. Holmes (m), in a 
 suit for the recovery of a legacy. Sir G. Lee refused to decree 
 an inventor^', thinking it useless ; because the executrix had 
 in her answers, confessed assets sufficient to cover the legacy, 
 and the interest claimed thereon and the costs of the suit. 
 Again in Leighton v. Leighton (n), where an executrix, being 
 cited to exhibit an inventory, gave in a declaration loco 
 inventorii, in which she declared that the deceased, by a bill 
 of sale, in consideration of a debt due to her had duly granted 
 to her all the personal estate of which he should die possessed, 
 Sir G. Lee held that the declaration was sulficient, and 
 refused to compel an inventory. So where a party showed 
 sufficient interest for calling on the executor to exhibit an 
 inventory, but not to see portions allotted and distribution 
 made, the Court would accept an admission of assets in lieu 
 
 incurred further expense : And (k) Huggins v. Alexander, Pre- 
 
 Sir H. Jenner Fust said it was rog. 1736. 2 Add. 238, note {a). 
 
 the duty of the executors, not- There is only one case in which 
 
 withstanding they insisted that the application of a party having 
 
 the estate of their testator was not any kind of interest in refused : 
 
 liable, either to exhibit an inven- vk., if a creditor has brought a 
 
 tory and account, or to admit suit in Chancery for the discovery 
 
 assets sufficient to answer the de- of assets, the party shall not pro- 
 
 mand : Jickliiig v. Bii'chani, 2 ceed in both Courts : Myddletou 
 
 Notes of Cas. 463. v. Rushout, 1 Phil. 247. ]5ro- 
 
 (/i) Kenny v. Jackson, 1 Hagg. therton v. Hellier, 2 Cas. temp. 
 
 105. See also Acastor v. Anderson, Lee, 134. 
 1 Robert. 672. (/) Sir T. Raym. 470. 
 
 (i) Paul V. Nettleford, 2 Add. (m) 2 Cas. temp. Lee, 101. 
 
 237. (w) 2 Cas. temp. Lee, 356.
 
 844 Of the Duties of an Executor. [Pt. iii. Bk. ii. 
 
 of an inventory, or any other admission which would enable 
 
 the Court to exercise a discretion and not to call for an 
 
 inventory (o). 
 
 After what Although no statute or rule of positive law has fixed any 
 
 an^inventoTy ^™® Certain, within which an inventory and account must be 
 
 may be com- sued, and time alone is not to be considered a bar ( p), still 
 
 liellcd, _ _ ^ J. " 
 
 reason and justice prescribe some limitation : And in cases 
 where there has been a great lapse of time between the death 
 of the party, and the citation calling for the inventory, the 
 Court has frequently refused to enforce the exhibition of an 
 inventory {q). Thus, it was held (r), that the lapse of forty- 
 five years in conjunction with circumstances, afforded a 
 reasonable presumption of the estate having been fully 
 administered ; and that therefore the inventory and account 
 might be dispensed with. So where, twenty-four years after 
 the death of the intestate, eleven years after the youngest 
 child attained twenty-one, and seven years after his insolvency, 
 his provisional assignee sued the administratrix for an in- 
 ventory and account ; and it appeared, that shortly after the 
 intestate's death, a valuation and inventory had been made, 
 and facts were shown from which it might be fairly presumed 
 that the insolvent had received more than his share ; the 
 Court refused the application (s). So in Boivles v. Harvey (t), 
 a party having, after a lapse of thirty-five years, called for an 
 inventory and account of an insolvent estate, the executor, 
 who appeared under protest, was dismissed with costs. Again 
 in Scurrah v. Scurrah {u), an apj)lication to compel an 
 administratrix to exhibit an inventory after the lapse of 
 eighteen years, was rejected and the applicant, under the 
 circumstances, was condemned in costs. And on another 
 
 (o) Burgess v. Marriott, 3 Curt, 426. 
 
 424. (r) Ritchie r. Rees, 1 Add. 144. 
 
 (2?) Jickliug?'. Bircham, 2 Notes (s) Pitt v. Woodham, 1 Hagg. 
 
 of Cas. 463, stated ante, p. 842, 247. 
 
 ry.ig). [t] 4 Hagg. 241. 
 
 {q) BnrgesR ?•. Mnrriott, 3 Curt. (»f) 2 Curt. 919.
 
 Cli. 1. § 111.] Of the luceutortj. 845 
 
 occasion (x), iu a case of inventory and account brought by a 
 legatee, a declaration (instead of an inventory) setting forth 
 desperate debts due to, and large debts due from the estate, 
 but annexing no vouchers nor accounts, was held sufficient 
 for a lapse of seventeen years : and Sir John Nicholl 
 laid down that in such a suit the Court cannot decide 
 whether debts alleged to be due from the estate are a legal 
 set- off {y). 
 
 The parties who may be cited to exhibit an inventory and ^^'^^ persona 
 
 are compel- 
 
 account are not confined to the executor or administrator jable to exhibit 
 himself, or even to those who, upon the death of the executor ^" ^"^^^"^ °^^' 
 or administrator, succeed to the representation of the original 
 testator or intestate. Thus, in Ritchie v. Rees (z), Sir John 
 Nicholl held, that the representatives of a deceased adminis- 
 trator cum Ustamento annexo, although not at the same time 
 those of the first testator, were liable to be called on for an 
 inventory and account, upon a reasonable presumption being 
 raised that any part of the eflects of the first testator had 
 travelled into their hands (a) : The learned judge was further 
 of opinion that a party, having an interest in the effects, was 
 entitled to call upon such representatives for the inventory, 
 without first taking a dc bonis non grant of the effects of the 
 first testator. So the executors of a deceased executor, 
 though not the personal representatives of the original 
 testator (there being an executor of the original testator still 
 surviving), are compellable to bring in an inventory of the 
 effects of the original testator {h). 
 
 An attorney who takes administration in the name of 
 another may be compelled by the latter to exhibit an inventory 
 and account (c). So an administrator durante minoi'itate may 
 
 (x) Higgins v. Higgins, 4 Hagg. p. 846, note (i). 
 
 242. (2) 1 Add. 158. 
 
 {y) See further, us to the ful- (a) See Holland v. Prior, 1 M. 
 
 ness requisite for a declaration, & K. 245, 246, 247, 
 
 Leighton v. Leightoii, 2 Cas. temp. (b) Gale v. LuttreU, 2 Add. 234. 
 
 Lee, 356. Akerman v. Uybbon, 2 (c) Bailey v. Bristowe, 2 Robert. 
 Cas. temp. Lee, 511 ; and j^'^^h . 145.
 
 846 
 
 Of the Duties of an Executor. [Pt. in. Bk. ii. 
 
 Consequences 
 of hanging 
 back when an 
 inventory as- 
 signed. 
 
 Form and con- 
 tents of an 
 inventory. 
 
 be compelled to give in an inventory, although his administra- 
 tion has expired {d). 
 
 An administrator _pewfZeni« lite might have been compelled 
 to exhibit an inventory, although a bill in Chancery for a 
 discovery had been filed against him by another party {e). 
 But his executors cannot be called on for such an inventory, 
 in a suit respecting his AVill by the representatives of a party 
 claiming an interest, not pronounced for in the suit pending 
 which he was appointed administrator (/). 
 
 The Ecclesiastical Court discouraged all hanging back ^vith 
 respect to the production of an inventory when called for ; 
 and generally condemned the parties who were guilty of it in 
 costs {g). AVhere probate of a Will had passed in August, 
 1815, and the inventory had been assigned since the first 
 session of Hilary Term, 1816, the Court in Easter Term of 
 that year pronounced the executrixes contumacious Qi). 
 
 The inventory exhibited by an executor or administrator 
 ou^ht to contain a full, true, and perfect description and 
 estimate of all the chattels, real and personal, in possession 
 and in action, to which the executor or administrator is 
 entitled in that character, as distinguished from the heir, 
 the widow, and the donee mortis causa, of the testator or 
 intestate (i). It must also distinguish such debts as are 
 
 ((/) Taylor v. Xewton, 1 Cas. 
 temp. Lee, 15. 
 
 (e) Brotherton i: Hellier, 2 Cas. 
 temp. Lee, L3L 
 
 (_/) Lascelles v. Jobber, 1 Cas. 
 temp. Lee, 443. 
 
 (g) Phillips V. Bignell, 1 Pliil. 
 241, 24.3. 
 
 (h) Griffiths V. Bennet, 2 Pliil. 
 364. 
 
 (i) Toller, 248. The usual form 
 of the heaci of the inventory was 
 stated by Sir G. Lee, in Plnnket 
 V. Sharpe, 1 Cas. temp. Lee, 624, 
 to be "a true and perfect inven- 
 tory of all the goods, chattels, and 
 
 credits of the deceased, that have 
 come to the hands, possession, or 
 knowledge " of the party. By 
 Rules and Orders, 1862, Conten- 
 tious Business, 76, " In conten- 
 tious business, inventories and not 
 merely declarations of the personal 
 estate and eftects of the deceased 
 are to be filed, unless by order of 
 the judge or of a registrar : " and 
 the form of an Inventory is given, 
 Ko. 27. See ante, p. 845, note 
 (y), fost, Pt. V. Bk. II. Ch. iii. as 
 to declarations in lieu of inven- 
 tories.
 
 Cli. I. § III.] Of the Inventory. 847 
 
 sperate from those which are doubtful or desperate {k). 
 But it was not necessary, according to the modern practice, 
 that the appraisement and inventory should be made pursuant 
 to the letter of the statute ; and it was sufficient if the goods 
 of the deceased should be appraised by any honest persons in 
 the neighbourhood, and reduced into an inventory {I), which, 
 when exhibited at the instance of a party interested, must be 
 verified by special oath, either personally or by virtue of a 
 commission ; for the formal general oath of the executor or 
 administrator will not be sufficient {m). 
 
 The Court can only require that all the deceased died 
 possessed of should be included in the inventory : It can- 
 not call for an account of the subsequent profits in his 
 business («). The Court has no jurisdiction over leaseholds 
 of the deceased for lives held by a creditor or mortgagee : 
 and therefore the inventory need not contain any refereuce to 
 such property, or the rents thereof (o). Again, it is not com- 
 petent for the Court of Probate to require an inventory of 
 personal estate situate in a foreign country; for foreign estates 
 are out of the jurisdiction and cognizance of the Court {jS) : 
 And the law is the same as to effects lying in Ireland (q). 
 In some instances, particularly in complicated cases, the 
 Court will exercise a discretion as to the sort of inventory it 
 will accept (r). 
 
 [These matters will be further considered hereafter (Pt. v. 
 Bk. II. Ch. III.), when the subject of Ptemedies against Ex- 
 ecutors and Administrators in the Court of Probate is con- 
 sidered.] 
 
 The Court of Queen's Bench has, on more than one Whether the 
 
 Spiritual Court 
 
 (/c) Toller, 248. temp. Lee, 4.31. 
 
 {I) 1 Oughtoii, tit. 233, s. 1, 2. (jj) KaymoiKU'. Von Watte vHle, 
 
 4 Burn, E. L. 310, 8tli edit. 2 Cas. temp. Lee, 551. 
 
 (m) 1 Oughton, ^lbi stqjra, note (q) Wilson v. Ogle, Prerog. 1737, 
 
 (d) 2. Toller, 250. cited 2 Cas. temp. Lee, 555. 
 
 (n) Pitt V. Woodliam, 1 Hagg. (r) Keeves v. Freeling, 2 Phil- 
 
 250. liiu. 50. 
 
 (o) l^a\ille V. Morgan, 1 Cas.
 
 848 Of the Duties of an Executor. [Pt. iii. Bk. ii. 
 
 could entert^vin occasioii, decided, that, after an inventory was exhibited, the 
 aiwuveutory. Ecclesiastical Court could entertain no objections to it (s). 
 
 Notwithstanding such decisions, it always continued the 
 practice of the Prerogative Court of Canterbury to entertain 
 objections to inventories (t). 
 
 But although the Ecclesiastical Court would allow an alle- 
 gation to be given in objection to an inventory, and answers 
 to be taken upon that allegation, yet it would not permit ^L■it- 
 ncsses to be examined upon that allegation, in order to falsify 
 the inventory (u). The foundation for this distinction is, that 
 if the answers confess more assets than were inserted in the 
 inventory, the Court may order the inventory to be amended 
 by the insertion of these ; but if further assets might be 
 established by witnesses in opposition to the answers, the 
 Court could not order them to be inserted in the inventory, 
 which is required by the statute to be upon oath ; nor could 
 it compel the executor or administrator to swear to assets, 
 the possession of which he has twice already upon oath 
 denied («). 
 
 Effects of in- -^^^ important question arises, with respect to the eflfect of 
 
 ventory in inventories in the Common Law Courts, viz., how far an in- 
 temporal 
 Courts. ventory exhibited by an executor or administrator in the Court 
 
 of Probate is evidence against him, as proof of assets. But it 
 
 will be more convenient to consider this point in a subsequent 
 
 part of this Treatise, together with the subject of Remedies 
 
 generally 0/). 
 
 (s) Hinton v. Parker, 8 Mod. {x) Hid. It is suggested in a 
 
 168. Catcliside v. Ovington, 3 note to Brogden v. Brown, 2 Add. 
 
 Burr. 1922. Henderson v. French, 340, by the reporter, that ivhere the 
 
 5 M. & S. 406. Griffiths v. An- executor is also the party before tlie 
 
 thony, 5 A. & E. 623. Court 'propounding the Will, the 
 
 {i) Telford v. Morison, 2 Add. Court might perhaps permit depo- 
 
 319. Shackleton v. Barrymore, sitions to be taken on the allega- 
 
 cited ibid., p. 329. tion, if the answers should prove 
 
 (n) TeKord v. Morison, 2 Add. unsatisfactory. 
 331. {y) See post, Pt. v. Bk. ii. Ch. i.
 
 Ch. I. § IV.] Of Collecting the Effects. 849 
 
 SECTION IV. 
 
 Of Collecting the Effects. 
 
 The next duty of the executor or administrator is to collect 
 all the goods and chattels so inventoried. For that purpose the 
 law invests him with large powers (as it has already appeared, 
 in considering the quantity of his estate, as well in action as 
 possession) : And it is incumbent on him to avail himself of 
 his authority with reasonable diligence in the collection of 
 the effects of the deceased. Therefore, if by unduly delay- 
 ing to bring an action, the executor or administrator has 
 enabled a debtor of the deceased to avail himself of the 
 Statute of Limitations, the executor or administrator will be 
 personally liable {z). So the executor or administrator 
 must, within a convenient time, remove all the personal 
 property of the deceased which he may have left on any 
 land which goes to the heir, or to a reversioner or remainder- 
 man : otherwise such property may be distrained damage 
 feasant (a). In the case of Stodden v. Harvey (b), a lessee 
 for life of a house and pasture land died ; his executors 
 suffered his cattle to go there for six days after his death, 
 and then removed them ; and in trespass justified for that 
 time, averring that in the space of six days they could not 
 procure any other land or place whereon to put the cattle : 
 The plaintiff demurred ; and whether that were a convenient 
 time to move them was the question : The Court inclined to 
 be of opinion that six days was but a convenient time for 
 removing, especially it being averred, that they had not any 
 other place to remove them to : but for a fault in the plea, 
 wherein the defendants pleaded a lease of the house, but not 
 of the laud in the declaration mentioned, it was adjudged for 
 the plaintiff. 
 
 (s) Hayward v. Kinsey, 12 Mod. (a) See ante, p. 796. 
 
 573, ^jos<, ]'t. IV. 13k. ir. Cli. ii. {b) Cro. Jac. 204. 
 
 w.E. — vol,. I. . 3 I
 
 850 
 
 CHAPTER THE SECOND. 
 
 OF THE PAYMENT OF DEBTS BY THE EXECUTOR OR ADMINIS- 
 TRATOR ACCORDING TO THEIR PRIORITY OF DEGREE. 
 
 SECTION I. 
 
 1. Of the Payjiient of the Exi^enses of the Funeral and of the 
 Probate or Administration. 2. Of Debts due to the Crown. 
 3. Of Debts to which particular Statutes give Priority 
 of Payment. 
 
 JblAVING considered in a previous part of this Treatise the 
 quantity of the estate of an executor or administrator, it is 
 now necessary to treat of his duty in the application of that 
 estate, according to the order prescribed by the law. 
 
 1. Funeral 
 expenses. 
 
 Expenses of 
 probate, &c. 
 
 Costs of ail- 
 ministration 
 suit. 
 
 1. Before any debt or duty whatsoever, funeral expenses, 
 with the proper limitation as to the amount, are, as it has 
 already appeared {a), to be allowed out of the estate of the 
 deceased. These expenses are to be preferred, even to a debt 
 due to the Cro-mi {b). 
 
 The next thing to justify and occasion expense is the 
 proving of the Will or taking out administration (c) : but a 
 greater disbursement, says the author of " The Office of an 
 Executor " {d), will not stand allowable, than is prescribed 
 by the statute of 21 Hen. VIII. c. 5 (f). ' 
 
 The costs of an action in Chancerv are to be considered as 
 
 (a) Ante, p. 835 et seq. 
 
 (b) R. V. Wade, 5 Price, 627, by 
 Richards, C. B. 
 
 (c) 2 Black. Comm. 511. 
 {d) P. 260, 14th edit. 
 
 (e) With respect to the proper 
 fees for probate and letters of 
 administration, see Burn's Eccles. 
 LaAv, tit. Fees, and tit. Wills, 
 vol. 4, p. 264, 291, 8th edit. " St. 
 
 Germaine (the author of the Doc- 
 tor and Student, dial. 2, c. 10), 
 who was no stranger to the canon 
 and civil law, as appears by his 
 book, saith, that the Ordinary 
 ought to take nothing for probate, 
 if the goods suffice not for funeral 
 and debts ; but he means only that 
 conscience is against it." Wentw. 
 Off. Ex. 260, 14th edit.
 
 Ch. IL § 1.] Funeral and Testamentary Ex2')enses. 851 
 
 expenses in administering the estate, and are the first charge 
 upon an estate, whether administered in or out of Court (/). 
 
 Where a AVill contains a direction that the testator's Testamentary 
 " testamentary expenses " shall he j)aicl out of a specified 
 part of his estate, the costs of an administration suit are 
 included under testamentary expenses {g). 
 
 T here is no distinction hetween "executorship expenses" 
 and "testamentary expenses" as regards what the phrase 
 includes Qi). 
 
 The term " executorship expenses " in a Will means Executorship 
 expenses incident to the proper performance of the duty of an ^^i^^"" 
 executor, and includes costs incurred hy executors in obtain- 
 ing the advice of solicitors or counsel as to the distribution of 
 their testator's estate : also the costs of the executors and other 
 parties in an action, whether instituted by the executors 
 themselves, or by a beneficiary, for the administration of the 
 testator's personal estate: also the testator's funeral expenses: 
 also expenses incurred by the executors for the protection of 
 specific legacies, e.g., for warehousing furniture specifically 
 bequeathed, pending the distribution of the assets and pay- 
 ments by the executors in discharge of debts falling due 
 from the testator's estate after his death, e.g., rent due after 
 the testator's death for a house of which he was tenant from 
 jear to year (i). 
 
 2. The third occasion of disbursement by the executor or 2. Payment of 
 
 debts. 
 administrator is the payment of debts ; and in such payment 
 
 (/) Loomes v. Stotherd, 1 Sim. Drewr. 281. 
 & Stu. 461, by Sir J. Leach. Tip- {g) Miles v. Harrison, L. R. 9 
 
 ])ing V. Power, 1 Hare, 405, 411. Ch. 316. Harloe r. Harloe, L, R. 
 
 Gaunt V. Taylor, 2 Hare, 413. 20 Eq. 471. Penny v. Penny, 11 
 
 Newbegin v. Bell, 23 Beav. 386. C. D. 410. The phrase "legal 
 
 Sanderson v. Stoddart, 32 Beav. expenses " includes the costs of an 
 
 15.5. And this priority will be administration suit : Coventry v. 
 
 allowed even over costs of litiga- Coventry, 2 Dr. & Sm. 470. Row 
 
 tion in tlie EcclosiasticLd Court v. Row, L. R. 7 Eq. 414. 
 incurred in determining which is {h) Sharp v. Lush, 10 C. D. 468, 
 
 the testator's Will, and ordered by 470, by Jessel, ]\I.Il. 
 the latter Court to be paid out of (i) Sharp v. Lush, 10 C. D. 468. 
 
 the estate : Major v. Major, 2 
 
 3 I 2
 
 852 
 
 Rules of 
 priority. 
 
 With respect 
 to foreign 
 assets. 
 
 Of the Duties of an Executor. [Pt. iii. Bk. ii. 
 
 he must be careful to observe the rules of priority ; for if he 
 pay those of a lower degree first, he must on a deficiency of 
 assets, answer those of a higher out of his own estate (A-). 
 So an executor or administrator is hound to plead a debt of 
 a higher nature in bar of an action brought against him for 
 a debt of inferior degree, and rieiis ultra, if he has not assets 
 for both ; otherwise it will be an admission of assets to 
 satisfy both debts {I). 
 
 It is obvious that it is beyond the power of a testator to 
 disappoint the rules of law as to the precedence of debts, by 
 directing his executors to make an equal distribution of the 
 assets among all his creditors {m). 
 
 A question of no little difficulty is raised in Story's Con- 
 flict of Laws, § 524, viz., Suppose a debtor dies domiciled in 
 England, and leaves assets in a foreign country by the law of 
 which all debts stand in an equal rank, and administration 
 is duly taken out in the place of his domicil, and also in the 
 place of the situs of the assets. ^Miat rule is to govern in 
 the administration of the assets ? The law of the domicil ? 
 or the law of the situs ? That eminent writer states his own 
 opinion to be (in accordance with the decisions of the American 
 Courts, though at variance, as he admits, with that of many 
 foreign jurists), that in regard to creditors the administration 
 of assets of deceased persons is to be governed altogether by 
 the law of the country where the executor or administrator 
 acts, and from which he derives his authority to collect them. 
 
 But in the case of Wilson v. Lady Dunsany (n), the 
 Master of the Rolls (Sir J. Eomilly) declined to adopt this 
 opinion, and held that the personal assets of a testator must 
 be administered on the principle of the law of his domicil. 
 In that case the testator had died domiciled in Ireland, 
 leaving personal assets partly there and partly in England ; 
 and, a question having arisen as to the priority of the claims 
 of his creditors, his Honor laid it down that he must treat 
 
 (/:) 2 Black. Comm. 511. 
 (0 Rock V. Leighton, 1 Salk. 
 310. 1 Saund. 333 a, note (8). 
 
 (77?) Turner v. Cox, 8 Moo. P. C. 
 288. 
 
 (n) 18 Beav. 293.
 
 Ch. ir. § I.] Of the Payment of Debts. 858 
 
 the case in the same way as if he were sitting in the Court 
 of Chancery in Dublin. In Cook v. Gregson (o), where the 
 testator had also died domiciled in Ireland, leaving assets 
 both in Ireland and England, and the same executors in both 
 countries, it was held by Kindersley, V.-C, that an Irish 
 judgment had priority over English simple contract creditors, 
 as against Irish assets remitted to England by the exe- 
 cutors and being there administered : His Honor said that 
 if the executors in the two countries had been different per- 
 sons, the duty of each would have been first to pay the debts 
 owing in the country in which he was executor, and then he 
 might send any surplus to the other country ; and that the 
 duty of the Irish executor was to pay the Irish debts first, 
 according to their order of priority ; and that, therefore, the 
 Irish assets remitted here ought to be administered here as if 
 they had remained and were being administered in Ireland. — 
 It will be observed that in this case the Irish judgment 
 creditor only sought to touch the Irish assets : And therefore 
 it was unnecessary to apply the law as laid down by the 
 Master of the Rolls in Wilson v. Lady Dunsany : But the 
 observations of the V.-C. appear to put the question as 
 though it were rather dependent on the situs of the assets 
 than on the domicil of the deceased ( p). 
 
 The view of the Vice-Chancellor seems to be the right one. 
 Thus in the late case of Re Kloehe (q), it is laid down that if 
 a man dies domiciled in England possessing assets in France, 
 the French assets must be collected in France and distributed 
 
 (o) 2 Drewr. 286. whether contracte:! in the juris- 
 
 {p) See Carron Iron Co. v. Mac- diction from which the grant 
 
 laren, 5 H. of L. 455, 456, by Lord issued, or out of it, and whether, 
 
 St. Leonards. And this view is owing to creditors domiciled or 
 
 borneoutbytheoLservationsof Mr. resident in that jurisdiction, or 
 
 Westlake in iiis work on Private out of it, in that ordei' of priority 
 
 International Law, 3rd edit, section which, according to the nature of 
 
 110, where he says that " every ad- the debts or of the assets, is jire- 
 
 niinistrator, principal or anciUary, scribed by the laws of the juris- 
 
 must apply the assets reduced into diction I'rom whicli the grant 
 
 possession under his grant in pay- issued." 
 
 ing all tlie debts of the deceased, (7) 28 (,'. 1). 175.
 
 854 Of the Duties of an Executor. [Pt. in. Bk. ii. 
 
 according to the law of France. If the French creditors are 
 entitled according to that law to be paid in priority, that rule 
 must be observed, because it is the lex fori and for no other 
 reason. But if it should happen that a man died domiciled 
 in France leaving assets in England, those assets can only 
 be collected under an English grant of administration, and 
 being so collected, must be distributed according to the law 
 of England .... the rule is, that all creditors are to be 
 treated equally, subject to what priorities the law may give 
 them, from whatever part of the world they come. In that 
 case Mr. Justice Pearson, after referring to the cases of Cook 
 V. Greg son (r), Eames v. Hacon (s), and Blackwood v. 
 The Queen (f), so far as such cases bear upon this question, 
 concludes his judgment by saying, " There seems to be some 
 mistake in the case of Wilson v. Lady Dnnsany (u) : it is 
 unfortunate that the case was ever reported." 
 
 Priority of It should be observed, that by the constant rule of the 
 
 solicitors hen. Qq^^.^ ^f Chancery, a solicitor, in consideration of his trouble, 
 and the money in disburse for his client, has a right to be 
 paid out of the duty decreed or fund recovered for the plain- 
 tiff, and a lien upon it, before the specialty creditors of the 
 deceased plaintiff; neither can his executor or administrator 
 controvert this rule, by insisting upon applying the assets 
 in a course of administration (x). 
 
 Debts due to To all other debts of whatever nature, as well of a prior as 
 
 the Crown, ^^ ^ subsequent date, such as are due to the Crown by record 
 or specialty, claim the precedence (y). So that if there be 
 not come to the executor or administrator goods of greater 
 value than will suf&ce for the satisfaction of these, he is not 
 to pay any debt to a subject : and if he be sued for any such, 
 he may plead in bar of this suit that his testator or intestate 
 
 (r) 2 Drewr. 286. (y) Magna Charta, c. 18. 2 Inst, 
 
 (.s) 18 C. D. 351. 32. Littleton r. Hibbins, Cro. Eliz. 
 
 (0 8 App. Cas. 92. 793. S\\nnb. Pt. 6, s. 16. Wentw. 
 
 (u) 18 Beav. 293. Off. Ex. 261, 14th edit. Com. 
 
 (x) Turwin v. Gibson, 3 Atk. Dig. Admon. (C. 2). 
 720. Lloyd v. Mason, 4 Hare, 132.
 
 oil. II. § I.] Of the Payment of Croivn Debts. 865 
 
 died thus mucli indebted to the king, showing how, &c., and 
 that he hath not goods surmounting the value of that debt {z). 
 
 But the debts due to the Crown, which are so privileged, 
 are confined to such as are due by matter of record or by 
 specialty, &c. (a), (which are of the same nature ; for by 
 statute 33 Hen. VIII. c. 39, it is enacted, that all obligations 
 and specialties, taken to the use of the king, shall be of the 
 same nature as a statute staple). And, therefore, sums of 
 money owing to the king on wood sales, or sales of tin, or 
 other his minerals, for which no specialty is given, shall not 
 be preferred to a debt due to a subject by matter of record {h). 
 So, though fines and amercements in the King's Court of 
 Record are clearly debts of record (c), and entitled to such 
 preference, yet amercements in the King's Courts Baron, or 
 Courts of his Honors, which are not of record, have no such 
 priority {d) : nor have fines for copyhold estate, nor money 
 arising from the sale of estrays within his manors or liberties ; 
 for these are not debts of record (e). 
 
 So, also, the arrears of rent due to the Crown, whether it 
 be a fee- farm rent, or a rent reserved on a lease for years, 
 shall, it appears, be regarded m the light of a debt by simple 
 contract (f). 
 
 Again, it was held, that a recognisance in the Court of 
 Chancery by a guardian in the matter of a minor, is not to be 
 considered a debt due to the Crown (g). 
 
 But it seems, that if the king's debt, and likewise that of a 
 subject, be both inferior to debts of record, the king shall be 
 preferred (h). 
 
 By statute 55 Geo. III. c. 184, s. 45, the commissioners of 
 stamps are authorized, in certain cases, to give credit for the 
 
 (z) Wentw. Off. Ex. 261, 14th edit. Com. Dig. Admon. (C. 2). 
 edit. Godolph. Pt. 2, c. 28, s. 3. 3 Bac. Abr. 80, tit. Exors. (L.) 2. 
 
 (a) Wentw. Off. Ex. 262, 14th (r) Ibid. 
 
 edit. Godolph. Pt. 2, c. 28, s. 3. (/) Com. Dig. Admon. (C. 2). 
 
 Com. Dig. Admon. (C. 2). AVentw. Ofl". Ex. 264. 14th. edit. ; 
 
 (b) Ibid. 3 Bac. Abr. 79, 80, but see infra, p. 8G9. 
 
 tit. Exors. (L.) 2. (g) Ex parte Usher, 1 Ball & 
 
 (c) Godolph. Pt. 2, c. 28, s. 3. Beat. 199. 
 
 {d) "Wentw. Off. Ex. 263, 14th (h) Bac. Abr. uhi aiipm, \i. {it).
 
 856 
 
 Of the Duties of an Executor. [Pt. iii. Bk. ii. 
 
 3. Debts to 
 which parti- 
 cular statutes 
 give priority: 
 
 money due to 
 parish by 
 overseers of 
 the poor. 
 
 Officers of a 
 
 Friendly 
 
 Society. 
 
 duties on probates and administration ; and by s. 48, it is 
 provided, that the duty for which credit shall be so given shall 
 be a debt to the Crown, and shall be paid in preference 
 to any other debt whatsoever. 
 
 3. Next in order are certain specific debts, which are, by 
 particular statutes, to be preferred to all others. Such were 
 formerly forfeitures for not burying in woollen under the 
 statute of Charles, now repealed by slat. 54 Geo. III. c. 108 ; 
 and such were debts for letters, not exceeding 5Z., to the Post 
 Office (i). 
 
 Again, by stat. 17 Geo. II. c. 38, s. 3, it is enacted, that if 
 any overseer shall die before the expiration of his office, " his 
 " executors, or administrators shall, within forty days after his 
 " decease, deliver over all things concerning his office to some 
 " churchwarden, or other overseer of the same place : and shall 
 " pay out of the assets left by such overseer all sums of money 
 " remaining due, which he received by virtue of his said 
 " office, before any of Ids other debts are paid and satisfied." 
 
 Likewise, it was provided by statute 33 Geo. III. c. 54, 
 s. 10 (k), that if any person appointed to any office by any 
 Friendly Society, and having in his hands any money, or 
 effects or securities belonging to the same, shall die, or 
 become a bankrupt or insolvent, his executors, administra- 
 tors, or assignees shall, within forty days after demand made 
 by the order of any such society, or the major part of them 
 assembled at any meeting, deliver all things belonging to 
 such societj' to such persons as they shall appoint, and shall 
 pay out of the assets or effects of such person all sums of 
 money remaining due, which such person received by virtue 
 of his said office, before any of his other debts are paid, and 
 all such assets and effects shall be bound to the payment 
 thereof accordingly. 
 
 This provision of the statute preferring the claim of 
 Friendly Societies to those of all other creditors, it should 
 
 (i) 9 Ann. c. 13, s. 30. 2 Black. 
 Comm. 511. Eepealed hy the 
 stat, 1 V'ict. c. 32. 
 
 (/.) Eepealed by the .«tat. 
 Oeo. IV. c. 5(3. 
 
 10
 
 Ch. II. § I.J Of Debts hy iMrticidar Statutes. 857 
 
 seem, is not favoured (l) : and it has been held to be con- 
 fined to persons duly and formally appointed officers of the 
 society ; and that it does not extend to any person to whom 
 the money of the society has been paid as banker, or to whom 
 the money has been lent upon security, paying interest (m). 
 And money lent to any officer of the society duly appointed, 
 or suffered to remain in his hands upon giving security, 
 has been determined not to be within the preference given 
 by the Act; the preference being given only in respect of 
 money which got into the hands of officers, independent of 
 contract (?i). 
 
 Notwithstanding the censures which this enactment has 
 met from eminent Judges, it has, in substance, been 
 continued in the subsequent Friendly Societies Acts, and is 
 contained in that now in operation (38 & 39 Vict. c. 60, s. 15, 
 sub-s. 7). 
 
 By stat. 26 & 27 Vict. c. 57, special and minute provisions Regimental 
 are made for the preferential payment of regimental debts, and 
 the distribution of the effects of officers and soldiers in case 
 of death. 
 
 Another instance may be adduced in the case of money Treasurer, &c. 
 due from the deceased as treasurer or collector to paving missioners. 
 commissioners under the Metropolis Act, 57 Geo. III. 
 c. 29, s. 51 (local Act), by which it was enacted, that the 
 executors or administrators, &c., of any treasurer, collector, 
 or other officer, &c., should out of the estate and effects pay 
 the commissioners, &c., all such sums of money as had been 
 collected by the deceased, and duo to the commissioners, in 
 preference to any other debt or debts {except debts due to the 
 king's majesty). 
 
 It may here be observed that the words of these Acts are Whether these 
 very large, sufficient, as it seems, to give to the debts, which j„.ccedence 
 
 of the Crown. 
 
 {I) S'^e the remarks of Lord Ves. 441. Ex parte Corser, ihid. 
 
 Eldon in Ex parte Koss, 6 Ves. Ex parte Ross, 6 Ves. 802. 
 
 804. Ex parte Stamford Society, (n) Ex parte Stamford Society, 
 
 13 Ves. 281. 15 Ves. 280. E.c parte P.uckland, 
 
 (m) 7i'x /;rn-/e Lancaster Society, Buck. 214. 
 6 Ves. 98. Ex imrte Ashley, 6
 
 858 Of the Duties of an Executor. [Pt. in. Bk. ii. 
 
 are the subject of them, precedence to those due to the 
 Crown : but, perhaps, they would not be so construed (o) . 
 
 It may be convenient here to notice an important provision 
 in section 10 of the Judicature Act, 1875, that " in the 
 administration by the Court of the assets of any person who 
 may die after the commencement of this Act, and whose 
 estate may prove to be insufficient for the payment in full of 
 his debts and liabilities, and in the winding up of any com- 
 pany under the Companies Acts, 1862 and 1867, whose assets 
 may prove to be insufficient for the payment of its debts and 
 liabilities, and the costs of winding up, the same rules shall 
 prevail and be observed as to the respective rights of secured 
 and unsecured creditors, and as to debts and liabilities prov- 
 able; and as to the valuation of annuities, and future, and 
 contingent liabilities respectively, as may be in force for the 
 time being under the Law of Bankruptcy wdth respect to the 
 estates of persons adjudged bankrupt, and all persons who in 
 any such case would be entitled to prove for and receive 
 dividends out of the estate of any such deceased person, or 
 out of the assets of any such Company, may come in under 
 the decree or order for the administration of such estate, or 
 under the winding up of such Company, and make such 
 claims against the same as they may respectively be entitled 
 to by virtue of this Act." (j))- 
 
 (o) 6 Ves. 99, by Lord Alvan- Maggi,20 C. D. 545. This decision 
 
 ley, in Ex imrte The Lancaster as to the rights of secured and un- 
 
 Society. secured creditors inter se, however, 
 
 ( p) This section does not intro- is not necessarily conclusive to 
 duce into the administration of in- show that section 10 does not im- 
 solvent estates of deceased persons port into administration proceed- 
 the provisions of s. 32 of the Bank- ings in Court so much of the 
 ruptcy Act, 1869 [s. 40 of the Act Bankruptcy Act, 1883, as relates 
 of 1883], that all debts, with cer- to the Crown's priority. Chitty, 
 tain exceptions, are to be paid pari J., in Re Oriental Bank Corpora- 
 2MSSU. It affects only the rights tion, £'a;^arfe The Crown, 28 C. D. 
 of the class of secured creditors as 643, 649, seems to treat the con- 
 conflicting with those of the class struction of this section on this 
 of unsecured creditors, and does point as an open question. See 
 not affect the rights inter se of the also the observation of Jessel, 
 members of those classes : Be M. R., in the Mersev Steel & Iron
 
 Ch. II. § II.] Of Debts of Record — Judgments. 859 
 
 SECTION II. 
 
 Of the Payment of Debts of Record — 1. Judgments. 
 2. Decrees. 3. Statutes and Recognisances. 
 
 Next in priority, in the order prescribed for payment of 
 debts, come those which are debts of record (q). And debts 
 of this nature are of two sorts, to which belongs a subdivision 
 of precedence. — 1. Judgments in Courts of Eecord ; 2. 
 Recognisances and statutes. 
 
 Judgments in Courts of Record (r), whether obtained com- i. Jiulgments : 
 pulsorily against the testator or intestate, or confessed by dence^to^re- 
 him, are in a precedent degree, not only to all debts, but to cognisances 
 
 ^ o ' J > a,nd other 
 
 recognisances and statutes (though the latter are also debts debts of re- 
 of record), and must be preferred by the executor or adminis- as to special- 
 trator, whether prior in point of time or not (s). Therefore, *'*^^' 
 he must discharge a later or more puisne judgment in pre- 
 ference to a statute or recognisance in time precedent (t). 
 
 The next consideration is, what shall be considered judg- What sort of 
 ments, so as to be entitled to this precedence. The privilege is entftied to 
 not confined to judgments of the Supreme Court of Judicature, ^^'^ ^\^'^^' 
 but extends itself to judgments in all other Courts of Record. 
 
 A judgment, which is entered up against the testator or 
 intestate after his death, when that happens between verdict 
 and judgment (u), shall be considered as if entered up in his 
 lifetime, and entitled to priority of payment by his executors 
 
 Co. V. Naylor, 9 Q. B. D. 648, 662. bankruptcy. 
 
 S. 125 of the Bankruptcy Act, (q) Wentw. Off. Ex. 265, 14th ed. 
 
 1883, provides for the administra- (?•) I.e., judgments docketed or 
 
 tion in bankruptcy of the insolvent entered according to the statutes 
 
 estate of a deceased debtor, upon now in force. See jwsf, p. 862, 
 
 the petition of a creditorwhose debt note (/). 
 
 would have l^een sufficient tf) sup- (.s) Wentw. Off. Ex. 266, 270, 
 port a bankruptcy petition against 14th edit. 1 Roll. Al)r. 926. 
 such debtor had he been alive, and Exors. (R.) pi. 1, 2. 
 that notice to the legal representa- (t) Wentw. Off. Ex. 267, 14th ed. 
 tive of a deceased person of the (m) R. S. C. 1883, Ord. xvii., 
 presentation by a creditor of a peti- r. 1, which on this point is founded 
 tion under this section shall, in the on s. 1.39 of the Common Law Pro- 
 event of an order for administra- cednre Act, 1852, which was a re- 
 tion being made thereon, be deemed enactment of 17 Car. II. c. 8, s. 1, 
 equivalent to a notice of an act of now repealed.
 
 860 Of the Duties of an Executor. [Ft. iii. Bk. ii. 
 
 or administrators accordingly {x). But where his death 
 happens between interlocutory and final judgment, it is other- 
 wise ; for such judgment is not to be entered against the 
 testator or intestate, but against his executor or adminis- 
 trator {y). And it is the same where the death happens after 
 the writ of inquiry is executed, and before final judgment {z). 
 Formerly, a judgment signed after the testator's death, at 
 any time during the term in which he died, or the subsequent 
 vacation, was, by relation, a judgment of the first day of the 
 term {a), and therefore it was considered that, if the defendant 
 died after the first day of the sittings and before the trial, the 
 case was within the remedy of the stat. 17 Car. II. c. 8 {aa). 
 But now, by K. S. C. 1883, Ord. XLI. r. 3, it is provided 
 that where any judgment is pronounced by the Court or a 
 Judge in Court, the entry of the judgment shall be dated as 
 of the day on which such judgment is pronounced, unless the 
 Court or a Judge shall otherwise order, and the judgment 
 shall take effect from that date : Provided that by special 
 leave of the Court or Judge a judgment may be ante-dated 
 or post-dated. And by r. 4 it is provided, that in all cases 
 not within rule 3, the entry of judgment shall be dated as of 
 the day on which the requisite documents are left with the 
 proper oflBcer for the purpose of such entry, and the judgment 
 shall take effect from that day {h). 
 what are uot. A judgment in a foreign country is considered, in our 
 
 Courts, merely as a debt by simple contract (c). And it 
 is settled that an Irish judgment is not, since the Union, 
 entitled to priority as an English judgment {d). 
 
 {x) Burnet r. Holden, 1 Lev. 2 Saund. 72 r, 6th edit. 1 Com. Dig. 
 
 277. Colebeck v. Peck, 2 Lord Pleader (2 D. 9). Smith v. Eyles, 
 
 Raym. 1280. It is presumed that 2 Atk. 386, by Lord Hardwicke. 
 
 these cases, which were decided on {z) Goldsworthy v. Southcott, 1 
 
 17 Car. II., will be authorities on Wils. 243. 
 
 the construction of the latter por- (a) Bragner v. Langmead, 7 
 
 tion of Ord. xvii. r. 1, not with- Term. Eep. 20. 
 
 standing the words of Ord. xli. rr. {aa) Jacobsr. Miniconi,7T. E. 31. 
 
 3 and 4, which are to the same (h) See ante, p. 782. 
 
 effect as r. 56 of the Rules of (c) Duplei.x r.De Roven, 2 Vem. 
 
 Hilary Term, 1853. 540. Walker v. Witter, Dough 1. 
 
 {y) Weston v. James, 1 Salk. 42. (rf) Harris v. Saunders, 4 B. &
 
 Ch. II. § II.] Of JJehts of Record— Judgments. 861 
 
 A judgment against the executor or administrator himself Effect of 
 is not to be considered within the same class as those which i^afn'sr'^ '^ 
 are recovered against the deceased {e). Such a judgment executors. 
 stands altogether on a different footing. It may be briefly 
 stated in this place, that, with respect to other creditors of 
 the deceased, a creditor, who has obtained a judgment against 
 the executor, has no priority, except with regard to debts of 
 equal degree with that upon which he has obtained judg- 
 ment (/), Among such, his debt is allowed the precedence, 
 because the executor ought to pay that creditor first who uses 
 the first diligence (f/). Therefore, the executor may plead in 
 bar to an action by a simple contract creditor, that there is 
 a judgment unsatisfied which another simple contract cre- 
 ditor has obtained against him, the executor, and that it will 
 exhaust the assets to satisfy that judgment : But such a 
 plea is not allowable in an action by a creditor of superior 
 degree, as upon a bond of which the executor had notice, or 
 a judgment which has been docketed or entered Qi). It 
 must, however, be observed, that, as between the executor 
 himself, and the creditor who has obtained judgment against 
 him, such judgment (except in the instance of judgment of 
 assets in futuro) must be satisfied, at all events, without 
 reference to the state of the assets, or the claims of superior 
 creditors : for, if the estate of the deceased is insufficient to 
 satisfy it, the executor may be compelled to do so de bonis 
 propriis (i). 
 
 C. 411. Ferguson v. Mahon, 11 only the rights of tlie class of se- 
 
 A. & E. 179 : that is no priority cured creditors as conflicting with 
 
 against Engli.sh assets ; fur a tlie class of unsecured creditors, 
 
 foreign judgment wouUl be allowed, and does not adect the rights inter 
 
 on an administration here, any pri- se of the members of those classes : 
 
 ority which it had by the law of lie Maggi, 20 C. D. 545. 
 
 the country under whose grant (cj) Ashley v. Pocock, 3 Atk. 208. 
 
 foreign assets have been remitted Dollond v. Johnson, 2 Sni. & Gitt'. 
 
 to England. 301. 
 
 (e) Wentw. Off. Ex. 270, 14th (h) S(ig infra. 
 
 edit. (i) See infra, Pt. V. Bk. it. , 
 
 (/) And thisis sonotwitlistand- Cli. i. Abbis u. Winter, 3 Swanst. 
 
 ing the ynovisions of 8. 10 of the 571), note. 
 Judic. Act, 1875, wliich affect
 
 862 
 
 Of the Duties of an Executor. [Pt. iii. Bk. li. 
 
 Stat. 23 & 24 
 Vict. c. 38, s. 
 3 : judgments 
 not docketed 
 to have no 
 priority. 
 
 Stat. 23 & 24 
 Vict. c. 38, s. 
 4 : judgments 
 as against 
 heirs and exe- 
 cutors to be 
 registered. 
 
 If a judgment be satisfied, and is only kept on foot to 
 wrong other creditors ; or if there be a defeasance of the 
 judgment yet in force ; then this judgment will not avail to 
 keep oft" other creditors from their debts (k). 
 
 It is enacted by stat. 23 & 24 Yict. c. 38, s. 3, " that 
 no judgment, which has not already been, or which shall 
 not hereafter be, entered or docketed under the several Acts 
 now in force {I), and which passed subsequently to the stat. 
 4 & 5 W. & M. c. 20, so as to bind lands, tenements and 
 hereditaments, as against purchasers, mortgagees or creditors, 
 shall have any preference against heirs, executors, or adminis- 
 trators in their administration of their ancestors', testators' 
 or intestates' estates," 
 
 It has been held, in conformity with the case of Gaunt v. 
 Taylor (m), decided on 4 & 5 W. & M. c. 20, that the 
 statute applies only to judgments against the testator or 
 intestate, and not to judgments obtained against the executor 
 or administrator {n). 
 
 This statute applies equally to judgments of County Courts 
 as to other judgments {o). 
 
 An unregistered judgment ranks only as a simple contract 
 debt (jj). 
 
 By the 4th section of the same statute, it is enacted, that 
 no judgments, which since the passing of the stat. 1 & 2 Vict, 
 c. 110, have been registered under the provisions therein 
 contained, or contained in the later Act 2 & 3 Vict. c. 11 (as 
 explained and amended by the stat. 18 & 19 Vict. c. 15), or 
 which hereafter shall be so registered, " shall have any pre- 
 ference against heirs, executors, or administrators in their 
 
 {k) Weutw. Off. Ex. 268, 14tli 
 edit. See infra, Pt. v. Bk. ir. 
 Ch. I. 
 
 (Z) viz., Stat. 1 Vict. c. 110, s. 
 19. Stat. 2 & 3 Vict. c. 11. Stat. 
 3 & 4 Vict. c. 82, and Stat. 18 & 
 19 Vict. c. 15. 
 
 (m) 3 M. & Gr. 886. 
 
 (n) Jennings v. Rigljy, 33 Beav. 
 198. Re Williams' Estate, L. R. 
 15 Eq. 270. In Avliich case it Avas 
 
 decided Ly Wickens, V.-C, that 
 the effect of the stat. 32 & 33 Vict, 
 c. 46 {post, p. 869), is to postpone 
 a specialty debt to a judgment, 
 though unregistered, obtained 
 against an executor for a simple 
 contract debt. 
 
 (o) Re Turner, 33 L. J. Ch. 232. 
 
 {p) Van Gheluive v. Xerinckx, 
 21 C. D. 189,
 
 Ch. II. § il] Of Debts of Record — Decrees in Equity. 863 
 
 administration of their executors' [/.c, ancestors' semhle], 
 testators' or intestates' estates, unless at the death of the 
 testator or intestate five years shall not have elapsed from the 
 date of the entry thereof on the docket, or from the only or 
 last re-registry thereof, as the case may he, which re-registry 
 from time to time is hereby authorized to be made, in manner 
 directed by the said Act of 2 & 3 Yict. (as explained and 
 amended by the stat. 18 & 19 Vict.) : but it shall be deemed 
 sufficient, to secure such preference as aforesaid, if such a 
 memorandum as was required in the first instance is again 
 left with the Senior Master of the Common Pleas (now with 
 the Central Office of the Supreme Court) within five years 
 before the death of the testator or intestate, although more 
 than five years shall have expired by effluxion of time since 
 the last previous registration before such last-mentioned 
 memorandum or minute was left, and so toties quoties upon 
 every re-registry." 
 
 By sect. 5, " In the construction of the previous provisions Sect. 5. 
 the term 'judgment ' shall be taken to include registered 
 decrees, order of Courts of Equity and Bankruptcy, and other 
 orders having the operation of a judgment." 
 
 It has been held that the 4th section of this statute (above 
 stated) is not retrospective (q). 
 
 The statute 2 & 3 Vict. c. 11, s. 4, directs, that all judg- stat. 2 & 3 
 ments registered pursuant to the provisions of the stat. 1 & 2 ^^f' '^' ^' 
 Vict. c. 110, shall, after the expiration of five years from the 
 former registration, unless re-registered within that time, "be 
 null and void against lands, tenements, and hereditaments as 
 to purchasers, mortgagees, or creditors^ It was held by 
 Wood, V.-C, that the word " creditors " referred only to 
 creditors who had some interest in the land ; and therefore, 
 that a judgment, though not duly re-registered, was not void 
 as against creditors generally (r). 
 
 {q) Evan.s v. Williams, 2 Dr. & held to be deprived, l)y sect. 3, of 
 
 Sill. 325. But a judgment signed priority in the administration of 
 
 before tlie passing of the Act, and his assets : Kemp r. ^^'ad(liI)gllam, 
 
 not regi.-^tered till altur the death L. \\. 1 Q. V,. 35."). 
 of the testator, -which happened (/•) Simpson /•. Morley, 2 Kay 
 
 after the passing of the Act, was & J. 71.
 
 864 
 
 Of the Duties of an Executor. [Pt. in. Bk. ii. 
 
 Judgments 
 have no prece- 
 dence among 
 themselves. 
 
 2. Decree in 
 Equity : 
 
 equal to a 
 judgment at 
 law : 
 
 the executor 
 could not plead 
 it at law, but 
 must have had 
 an injunction : 
 
 what sort of 
 decree entitled 
 to this prece- 
 dence. 
 
 3. Recogni- 
 sances and 
 statutes : 
 
 Between one judgment and another obtained against the 
 deceased, as they stand among themselves, precedency or 
 priority of time is not material, as far as regards the personal 
 estate (s). Nor is there preference to be claimed by the 
 creditor with respect to the original cause of action ; for a 
 judgment against the testator on a debt by simple contract, 
 is of the same nature as a judgment on a specialty {t). 
 
 Of several judgment creditors, therefore, he who first sues 
 out execution must be preferred ; and before any execution 
 sued, it is at the election of the executor or administrator to 
 pay whom he will first {u). 
 
 2. A decree in a Court of Equity, obtained against the 
 testator or intestate, was, in respect to the course of ad- 
 ministering assets, equivalent to a judgment at law against 
 him, and stood in the same order of payment. 
 
 However, an executor or administrator, if sued at law for a 
 debt of inferior degree, could not plead or give in evidence a 
 decree of a Court of Equity (x). But he might relieve himself 
 by a bill in equity, and have an injunction {y). 
 
 A decree not conclusive of the matters in question, as if 
 it be merely to account, and which does not ascertain the sum 
 to be paid, is no complete judgment until the account be 
 stated. Therefore, it was held, that, pending a bill in 
 equity, and after such decree against his testator, an executor 
 micht pay any other debt of a higher or equal nature, in case 
 the assets be legal, although he had no power to do so, as 
 against a final decree {z). 
 
 A common order in a foreclosure action gives no priority ; 
 for it is not an order for payment of money, but only in bar 
 of the equity of redemption {a). 
 
 3. Recognisances and statutes. Next in rank to judgments 
 and decrees are recognisances and statutes. 
 
 {$) Wentw. Off. Ex. 269, 14th ed. 
 (i) Toller, 264. 
 
 \u) Wentw. Off. Ex. 269, 14tlied, 
 (a;) Stasby v. Powell, 1 Freem. 
 334. 
 
 {y) Ibid. Harding v. Edge, 1 
 Vera. 143. 
 
 (z) Smith V. Eyles, 2 Atk. 385. 
 
 (a) Wilson v. Lady Dunsany 
 18 Beav. 293, 299.
 
 Cli. II. § II.] Debts of Record — Recognisances. 865 
 
 A recognisance is an obligation of record ; it may be entered recognisance : 
 into by the party before a Court of Eecord, or a magistrate 
 duly autborised, conditioned for the performance of a par- 
 ticular act ; as to appear at the assizes, to keep the peace, to 
 pay a debt or the like (/>). A recognisance is, in most 
 respects, like another bond. The chief distinction between 
 them is, that the latter is the creation of a new debt, or an 
 obligation de novo, the former is an acknowledgment on 
 record of a prior debt, of which the form is : " That A, B. 
 doth acknowledge to owe our lord the king (to the plaintiff, 
 to C. D., or the like), the sum of ten pounds," with condition 
 to be void on performance of the thing stipulated. And in 
 such case, the king (the plaintiff, or C. D.) is called the 
 cognisee, is ciii cognoscitur," as he that enters into the 
 cognisance is called the cognisor, " is qui cognoscit." This 
 instrument being either certified to, or taken by the officer of 
 some Court, is authenticated only by the record of such Court, 
 and not by the party's seal (c). 
 
 — A recognisance is not a record until it is enrolled (d), and 
 although the creditor claiming under a recognisance not 
 enrolled will still be considered as a bond creditor, the seal- 
 ing and acknowledging thereof supplying the want of 
 delivery {e), yet this will give it no preference since 32 & 33 
 Vict. c. 46. 
 
 If a recognisance be enrolled by special order of Court after 
 the time for the enrolling of it has] elapsed, that makes the 
 recognisance efi^ctual from the time of the date (/). But 
 whenever the Court permits the enrolling of a recognisance, 
 after the time elapsed, it always takes care not to hurt an 
 intervening purchaser {g). 
 
 Of securities by statute, there were three species ; statutes securities by 
 merchant, statutes staple and recognisance in the nature of ^ "^ ^ ^ ■ 
 
 {h) 2 Black. Comm. 341. Wins. 334, 340. 
 
 (c) Ihid. (/) Fothergill r. Keiidrick, 2 
 
 {(1) Glynn v. Thorpe, 1 Barn. & Vern. 234. 
 
 Aid. 158. iu) 1 l"*- Wnis. 340, 2 Vern. 234. 
 (f) liothomly r. Fairfax, 1 1'. 
 
 W.E. — VOL. I. 3 K
 
 866 Of the Duties of an Executor. [Pt. iir. Bk. ii. 
 
 statutes staple ; and though they are fallen into disuse and 
 the statutes on which the}' depended repealed, yet, as they are 
 frequently alluded to in argument, especially on this subject, 
 it seems necessary to give some explanation of them. 
 statute mer- A statute merchant is a bond of record acknowledged before 
 
 chant : 
 
 the Mayor of London, or chief warden of some other city or 
 town, or other discreet men, chosen and sworn for that pur- 
 pose, when the mayor or chief warden cannot attend, or before 
 one of the clerks of the statute merchant nominated by the 
 king, pursuant to the statute of Acton Burnell, 11 Edw. I. 
 (enforced and amended by statute 13 Edw. I. st. 3, de merca- 
 toribus). This recognisance is to be entered by the clerk on 
 a roll, which must be doubled, one part to remain with the 
 mayor or chief warden, and the other with the clerk, who 
 shall write with his own hand an obligation, to which the 
 debtor's seal, together with the seal of the king appointed for 
 that purpose, shall be affixed (Jt). The design of this 
 security w^as to encourage trade, by providing a sure and 
 speedy remedy for merchants, strangers as well as natives, to 
 recover their debts at the day assigned for payment. After- 
 ward, other persons, observing that it was much of the same 
 nature with a judgment, but obtained with infinitely less 
 trouble and expense, frequently entered into this species of 
 contract, until, by degrees, it became a common assurance, 
 as we find it at this day. The addition of the king's seal 
 was to authenticate the security, and to make it of so high a 
 nature, that, on failure' of payment by the debtor at the day 
 assigned, execution might be awarded without any mesne 
 process to summon him, or the trouble or charge of bringing 
 in proof of the debt. 
 
 statute staple : A statute staple is a bond of record, acknowledged before 
 the mayor of the staple, in the presence of the constables of 
 the staple, or one of them, pursuant to stat. 27 Edw. III. st. 2, 
 c. 9. To this end the statute requires, that there shall be a 
 
 seal ordained, which shall be affixed to all obhgations made 
 
 (/i) Bac. Abr. Execution, 331.
 
 Cli. II. § II,] Debts of Record — Recognisances. 867 
 
 on such recognisances acknowledged in tiie staple, and tlie 
 seal shall remain in the custody of the mayor of the staple, 
 under the seals of the constables (?'). This security was also 
 only designed for the merchants of the staple, and for debts 
 on the sale of merchandises brought there ; but, in time, 
 others began to apply it to their own ends : and the mayor 
 and constables would take recognisances from strangers, sur- 
 mising it was made for the payment of money for merchan- 
 dises brought to the staple. To prevent this mischief, the 
 Parliament, by statute 23 Hen. VIII. c. 6, s. 11, reduced the 
 statute staple to its former channel, and laid a penalty of 40L 
 on the mayor and constables who should extend the benefits 
 of the statute to any but those of the staple. 
 
 But though that statute deprived them of this benefit, yet Recognisance 
 it framed a new sort of security, to be used by all persons, statute^stapie • 
 known by the name of a recognisance on 23 Hen. VIII. c. G, 
 or a recognisance in the nature of a statute staple, so called, 
 because this Act limits and appoints the same process, execu- 
 tion, and advantage in every particular, as is provided for the 
 statute staple (k). A recognisance, therefore, in nature of a 
 statute staple, as the words of the Act declare, is the same 
 with the statute staple, only acknowledged before other per- 
 sons ; for, as the statute runs, the chief^stices of the King's 
 Bench and Common Pleas, or in tlielr absence out of term, 
 the mayor of the staple at Westminster, and the recorder of 
 London jointly together, shall have power to take recog- 
 nisances for payment of debts in the form set down by the 
 statute (which see in section 2 of the statute 23 Hen. VIII. 
 c. 6). In this, as in the former cases, the king appoints a 
 seal to attest the contract, and each of the justices has the 
 keeping of one such seal, and the mayor of the staple at 
 Westminster and recorder another, of the like print and 
 fashion ; and every obligation made and acknowledged before 
 either of the justices, or the mayor and recorder, must be 
 sealed with the seal of the conusor, the king's seal, and 
 
 (i) Bac. Abr. Execution, 331, 332. {!:) Bac. Abr. Execution, 332. 
 
 3 K 2
 
 868 Of tin; Dalles of an Executor. [Pi. ill. Bk. li- 
 
 the seal of the chief justice, or the seals of the mayor and 
 recorder, before whom it is taken, who are likewise obliged to 
 subscribe their names. 
 
 A statute, which is void for the want of the formalities 
 required by the Act of Parliament, shall be considered a 
 bond, and have the same rank among debts as to pay- 
 ment {I). 
 
 Although recognisances are entered on the rolls of the 
 King's Courts, while statutes are consigned to the custody of 
 the party, and hence are called pocket records {m), yet both 
 species of securities, having been entered into voluntarily 
 and privately, are regarded as equal in their nature, and pay- 
 able in the same order [n). Nor is it material, in regard to 
 payment by the executor, which of them are prior or subse- 
 quent in point of date : Therefore, where there are many 
 cognisees, he may prefer a subsequent to a prior statute or 
 recognisance ; for they all equally aflfect the personal estate, 
 although, as to lands, the first in point of time shall have the 
 preference (o). 
 
 If a statute be joint and several, the cognisee may elect to 
 sue either the surviving obligor, or the executor of him who 
 is dead, or both, in separate actions : If it be joint only, the 
 survivor alone is liable ( p) . And, therefore, the executor of 
 the deceased conusor cannot set up any payment of such a 
 statute. 
 
 With respect to recognisances and statutes for the payment 
 of money on a future day, or on a contingency, they will be 
 considered more conveniently hereafter together with debts by 
 specialty of the same nature (?•) . 
 
 {I) Hollingworth v. Ascue, Cro. (o) Wentw. Off. Ex. 273, 14th 
 
 Eliz. 355, 461, 494, . 544. S. C. edit. 3 Bac. Abr. 81, tit. Exors. 
 
 Moor. 405. 2 Roll. Abr. 140. Ob- (L. 2). Com. Dig. Admon. (C. 2). 
 
 ligation, (I.). {p) Rogers v. Danvers, 1 Mod. 
 
 (m) Harrison's case, 5 Co. 28, h. 165. S. C. 1 Freem. 127. 
 
 (n) Wentw. Off. Ex. 273, 14tli (r) Infra, p. 871. 
 edit. Toller, 275.
 
 Ch. II. § III.] Of the Payment of Debts. 869 
 
 SECTION III. 
 Of Debts by Specialty, and by Simple Contract 
 
 Formerly next in precedence in -the order of payment were 
 debts by special contract ; as on bonds, covenants, and other 
 instruments under the seal of the party : all these must have 
 been paid by an executor or administrator before debts by 
 simple contract (s). 
 
 But now by stat. 32 & 33 Vict. c. 46, after reciting " that Stat. 32 & 33 
 
 Vict. c. 46. 
 
 it is expedient to abolish the distinction as to priority of pay- au specialty 
 ment between specialty and simple contract debts of deceased ^"'Ir^/'i^v,*, 
 persons," it is enacted by s. 1, that in the administration of of deceased 
 
 persons to 
 
 the estate of every person who shall die on or after the stand in equal 
 1st day of January, 1870, no debt or liability of such person ist oTjanuary. 
 shall be entitled to any priority or preference by reason -^^''^* 
 merely that the same is secured by or arises under a bond, 
 deed, or other instrument under seal, or is otherwise made or 
 constituted a specialty debt : but all the creditors of such 
 person, as well specialty as simple contract, shall be treated 
 as standing in equal degree, and be paid accordingly out of 
 the assets of such deceased person, whether such assets are 
 legal or equitable, any statute or other law to the contrary 
 notwithstanding : Provided always that this Act shall not 
 prejudice or affect any lien, charge, or other security which 
 any creditor may hold or be entitled to for the payment of 
 his debt. 
 
 A debt for rent which also ranked in the same degree as a Rent. 
 debt by obligation, or other instrument under seal, has now no 
 preference (0- 
 
 A bond or covenant merely voluntary shall be postponed Voimitaiy 
 to simple contract debts, which are Ixmd fide owing for nants. 
 valuable consideration ; l)ut such bond or covenant, if not 
 
 (.s) Pinchon'.'? casp, 9 Co. 88, h. of a deceased tenant for rent in 
 
 {t) Re HastinfTs, 6 C. D. 610. A arrear at tlie death of the tenant 
 
 landlord has therefore no pre- as against the simple contract cre- 
 
 ferential claim against the 'estate ditora : ihid.
 
 870 Of the Duties of an Executor. [Pt. iii. Bk. ii. 
 
 to the prejudice of creditors, must be paid by the executor, 
 and in preference to legacies {u). For a bond or cove- 
 nant, however voluntary, transfers a right in the lifetime 
 of the obligor ; whereas legacies arise from the Will, which 
 takes effect only from the testator's death, and therefore 
 they ought to be postponed to a right created in his life- 
 time {x). 
 
 Accordingly it has been held, that the payment of the 
 expenses of the reconveyance of mortgaged premises to the 
 real representative, and the costs of an ejectment to recover 
 the mortgaged premises, ought to be postponed by an 
 executor to the payment of an annuity creditor by volun- 
 tary deed : And further, that an executor cannot, as against 
 such voluntary creditor, be allowed a payment made out of 
 the assets on account of a mortgage debt, created by an 
 ancestor of the testator, to whom the mortgaged estate had 
 descended (?/). 
 
 In the case of Tanner v. Byne {£), a husband made a post- 
 nuptial settlement of 4,000L in favour of his wife and chil- 
 dren ; and then, in consideration of the 4,O0OZ. expressed to 
 have been lent to him by the trustees of the settlement, he 
 made a mortgage to them of a real estate to secure that sum, 
 and covenanted to repay it : The husband never, in fact, paid 
 the 4,000/. to the trustees ; nevertheless, it was holden by Sir 
 John Leach, V.-C, that they were specialty creditors of the 
 husband. Further, it has been held that a voluntary bond, 
 assigned for value, ought, in the administration of assets, 
 to stand upon the same footing as a bond originally given for 
 value : And accordingly it was decided that the assignee for 
 value of an equitable interest in the money payable under 
 
 (?() Jones v. Powell, 1 Eq. CasJ. liave a riglit to stand in the place 
 
 \br. 84, pi. 2. Cox i: Barnard, of mortgagees : Lomas r. Wright, 
 
 8 Hare, 310. Hales i: Cox, 32 2 M. & K. 769. 
 
 Beav. 118. Dawson v. Kearston, (•'') Toller, 283. 
 
 3 Sm. & G. 314. Creditors by spe- (y) Edwards v. Edwards, 2 Cr. & 
 
 cialty, who are mere volunteers as Mees. 612. 
 
 at^ainst the devisees of the debtor, (~) 1 Sim. 160.
 
 Ch. II. § III.] Of the Payment of Debts. 871 
 
 a voluntary bond, was not postponed to simple contract 
 debts (a). 
 
 An executor has no authority to pay a bond founded on Bonds usurious 
 an usurious contract (given when by law usury was pro- ^^cmsd!'^^^^ 
 hibited) or a bond ex turpi causa : such payment will 
 amount to a devastavit, as well against legatees as against 
 creditors (h). 
 
 With regard to priorities of the different classes of debts a Future debts. 
 distinction has always been drawn between contingent securi- 
 ties and those for future debts. Thus it was held that if a 
 statute or recognisance were for the payment of a sum of 
 money at a day certain, although the day were not arrived, 
 yet it was a debt of the same class with other statutes ; for 
 it was a present and immediate duty to be discharged at a 
 future period (c). 
 
 But where there were two debts upon specialties, and of 
 one the day of payment was past, and of the other the day of 
 payment was not come, it was held that the executor might 
 not pay the latter debt before the former ((/). 
 
 With respect to contingent debts, the executor cannot gene- Contingent 
 rally pay anything until the contingency has occurred, and 
 could not formerly refuse to pay a simple contract debt on the 
 ground that he might have to provide for contingent specialty 
 debts. This latter proposition appears from the cases cited 
 below as they stood in former editions of this Work. ]iut 
 with regard to the former proposition it is to be observed that 
 inasmuch as, if the estate of the deceased is insolvent it is 
 provided by sect. 10 of the Judicature Act, 1875, that the 
 same rule shall prevail and be observed as to debts and 
 
 (rt) Payne t'. Mortuuer, 4 Dc G. V;iuj,'lian, C. J., Viui[j;li. J(>;3. 
 
 & Jones, 447. Uoldsmith v. Sidnor, 1 Roll. Aln-. 
 
 (?>) Winchcombe v. Bishop of !)25, 92(;, i)l. 4. S. C. do. Car. 
 
 Winchester, Hob. 167, cite<l 1 ;3G2. 
 
 Brownl. 33. liobinson v. Gee, 1 ((/) 1 Roll. Abr. !J27, tit. E.vors. 
 
 Ves. Sen. 254. (R-) pl- 5 (citing' Doctor and Stud. 
 
 (c) Robson V. Francis, 1 l!ull. 77, h. 9 E. 4, 13). Wentw. Off. 
 
 Abr. 925. Exors. (Q.) 2. 1 \hA\. Ex. Ch. 12, pp. 277, 278, 14th edi- 
 
 Rep. 405, pi. 36. S. C. cited l)y tion.
 
 872 Of the Duties of an Executor. [Pt. in. Bk. ii. 
 
 liabilities provable, and as to the valuation of annuities and 
 future and contingent liabilities, respectively, as may be in 
 force for the time being under the law of bankruptcy with 
 respect to the estate of persons adjudged bankrupt, it would 
 seem that in the case of insolvent estates a contingent creditor 
 may have his debt valued and prove immediately. 
 
 With respect to contingent securities, it was held that they 
 should not stand in the way of debts of inferior degree : There- 
 fore, if the condition of a recognisance were for the payment 
 of 100?. to an infant when he came to his full age, the recog- 
 nisance during the infancy was no bar to debt upon bond, 
 because it was uncertain whether ever anything should be paid 
 upon the recognisance; for the infant might die before his full 
 age, and then nothing should be paid {e). So the payment of 
 a simple contract debt before a bond conditioned for indemnity 
 used, when specialty debts had a preference, to be held good, 
 if no breach of the condition had taken place (/). And if 
 subsequently to the payment of the simple contract debt, the 
 contingency happened, and the bonds were put in suit, it was 
 a good defence for the executor that he had paid the simple 
 contract debt, and had no more assets whereTvith to satisfy 
 the bond {g) . 
 
 In the case o^ Read v. Blunt (h), the testator had entered 
 into a covenant with the plaintiff, for securing to him an 
 annuity for his life, and had executed a warrant of attorney, 
 as a further security, but judgment had not been entered up 
 
 (c) Eobinson v. Francis, Bridgm. ken, whereby suit is upon that 
 
 79. S. C. 1 RolL Abr. 925, tit. statute, payment of the debt upon 
 
 Exors. (Q.) pi. 3, 1 Roll. Rep. 405, the obligation, and that he hath 
 
 pi. 36. Harrison's Case, 5 Co. 28, h. no more in his hands of the testa- 
 
 (f) Eeles I'. Lambert, Aleyn, 40. tor's goods, is a good bar against 
 S. C. cited in 2 Vern. 101. the statute. However, in Wood- 
 
 (g) See Collins V. Crouch, 13 Q. cock r. Hern, Goidsb. 142, pi. 57, 
 B. 542. Accord. See also Philips the reporter assumes, that if the 
 r. Echard, Cro. Jac. 8, where all executor pays the debt and the 
 the Court agreed, that if an exe- statute is broken, he would be 
 cutor pay debts upon an obliga- chargeable by a devastavit of his 
 tion, before a statute is broken, own proper goods. 
 
 and afterwards a covenant is bro- (/;) 5 Sim. 567. 
 
 I
 
 Ch. IL § in.] Of the Payment of Debts. 873 
 
 under it : The bill prayed for an account of the testator's 
 assets, and that the defendants, his executors, might be ordered 
 to set apart a sufficient part of the assets, to answer the future 
 payments of the annuity : and that in the meantime they 
 might be restrained from parting with any of the assets, 
 either to the creditors or legatees of the testator : Some of 
 the testator's simple contract debts remained unpaid, but the 
 annuity was not in arrear, and the executors had a balance 
 in hand : And it was contended that the relief asked was 
 frequently granted in the case of legatees (i) : But Sir L. 
 Shadwell, V.-C, refused the motion for an injunction, and 
 said, that *' if there was anything like misapplication of 
 assets in this case, that would be a reason for the Court 
 interfering : The executors may, by law, the day before an 
 instalment of the annuity becomes due, apply the whole of 
 the assets to pay the simple contract debts {k) : The case of 
 a bond creditor is different ; for, when the condition of a 
 bond is broken, the whole penalty is due : Here no case has 
 been made out of probable misapplication of assets ; and 
 certainly none has been made out of the past misapplica- 
 tion." 
 
 However, where the contingency has taken place by a 
 breach of the condition, the securities will stand in the same 
 
 (i) Slanning v. Style, .3 P. Wms. ing till the day of payment ; and 
 
 330. The question, whether an the rase fell witli in the rule (above 
 
 annuitant under a Will, has a stated) as to the priority of simple 
 
 right to have an adequate portion contract debts payable in jji'msenti 
 
 of the assets set aside for the satis- to contingent debts by specialty, 
 
 faction of his legacy, turns on an But since the stat. 4 Wm. IV. 
 
 entirely different principle, con- c. 22, s. 2 and 33 & 34 Vict. c. 35, 
 
 nected with the appropriation of (see ante, p. 72!),) the claim of the 
 
 legacies payable in futuro. As to personal representatives of the an- 
 
 which, Bceposf, Pt. iii. Bk.iii. Cli. nuitantfor an apportionment may, 
 
 IV. § IV. ])erhap9, stand on a difierent foot- 
 
 (Ic) As the law stood, at the time ing, and be entitled so far as regards 
 
 of this decision, the annuity could the part apportionable to the past 
 
 not have been apportioned; and lo have it treated as a debt ?n ^n-rc- 
 
 therefore, the debt was confingenf senfi. 
 on the event of the annuitant liv-
 
 874 Oftlte Duties oj an Executor. [Pt. in. Bk. ii. 
 
 rauk as other debts, and tlie conusees, obligees, or cove- 
 nantees may enforce their claims under them, as debts 
 due %n 'pvtcscnti, whether the debt is ascertained, or the 
 damages are unliquidated ; Thus in Cox v. Joseph (/) , the 
 testator had executed a bond in 2,800^. conditioned to in- 
 demnify the obligee against another bond for 800/. which he 
 had executed jointly with the testator as surety for the debt 
 of the testator, in whose lifetime the 800L had become due, 
 and were still unpaid : And it was held a good plea in bar by 
 the executrix, to a simple contract creditor, that the bond 
 for 2,800L was unpaid, and that she had not assets more 
 than sufficient to satisfy the penalty of it. So in Musson v. 
 2Iay (m), the intestate and another were jointly indebted as 
 partners, and the intestate, for a valuable consideration, on 
 dissolving partnership, covenanted that he alone would pay 
 the joint debts, and indemnify his partner against them : 
 The intestate died, leaving partnership debts undischarged : 
 And Sir Wm. Grant held, that the covenantee was to be con- 
 sidered as a specialty creditor under the covenant, at the time 
 of the death of the intestate. 
 
 In an early decision (ii), the testator acknowledged a recog- 
 nisance in the nature of a statute staple, whereof the de- 
 feasance was, that, whereas the conusee and testator were 
 bound in a bond to B., a stranger, for the debt of the testator, 
 and as his surety, with condition for payment of 100/. at a day 
 yet to come, it was granted by the said defeasance, that if the 
 testator, his executors, or assigns, paid the 100/. to B. at the 
 day, then the statute should be void : And it was holden, 
 that, though in this case the day of payment was not yet come, 
 and though it was a collateral sum to be paid to a stranger to 
 the statute, and not to the conusee, and so no duty to the 
 conusee, and peradventure the heir of the testator would pay 
 the money at the day, yet, inasmuch as it was for payment of 
 the money certain, for which, by intendment, the executor 
 
 (0 5 T. E. 307. (■/() Goldsmith r. Sidnor, 1 Roll. 
 
 (7«) 3 V. & B. 194. Abr. 925, tit. Exors. (Q.) pi. 4.
 
 Ch. II. § III.] Of the Payment of Debts. 
 
 875 
 
 would be charged, the executor might plead this statute, in 
 bar of an action of debt upon a bond, before the day of pay- 
 ment came. 
 
 Last in order of payment came debts on simple contract ; D«bts by sim 
 as on bills or notes not under seal, and verbal promises, or 
 such as are implied in law. "~* 
 
 Of debts of this nature, those due to the King shall, it 
 seems, be satisfied before debts due to subjects (o). The wages, 
 also, of domestic servants and of labourers, are considered by 
 some authorities to be entitled to a preference (^0- 
 
 Co) 3 Bac. ALr. 80, tit. Exors. 
 (L.) 2. 
 
 {p) 2 Black. Com. 511. Tuller, 
 28G. It is difficult to point out any 
 lej^al ground on whicli such pre- 
 ference can Le claimed. Black- 
 stone refers to 1 Roll. Abr. 927, 
 where it is said that debts for ser- 
 vants' wages, within the Statute of 
 Labourers, shall be paid before 
 simple contracts, "come moi sem- 
 hle." This distinction as to wages 
 within the statute seems to refer 
 to the doctrine, that an action of 
 debt would lie for them, against au 
 executor, but not for other wages. 
 That difference, however, appears 
 to have ceased to be of any im- 
 portance, since it has been estab- 
 lished that assumpsit lies against 
 an executor on the simple contract 
 of his testator. See j^o^fj ^^- '^'• 
 Bk. II. Ch. I. With regard to the 
 payment of wages in the distril^u- 
 tion of the estate of a person dying 
 insolvent, the statute 51 & 52 Vict. 
 c. 62 should be noted. This 
 statute enacts : Sect. 1 (1) That 
 in the distrilmtion of the propeity 
 of a bankru]it and of tlie assets of 
 any company being wound up 
 under the Companies Act, 1862, 
 
 and the amending Acts, there shall 
 be paid, in j)riority to all other 
 debts, all wages or salary of any 
 clerk or servant in respect of ser- 
 vices rendered to the bankrupt or 
 the company during four months 
 before the date of the receiving 
 order, or, the commencement of 
 the winding-up not exceeding £50 ; 
 and all wages of any lal^ourer or 
 Avorkman not exceeding £25 
 whether payable for time or for 
 liiecework, in respect of services 
 rendered to the bankrupt or the 
 company during two months before 
 the dale of the receiving order or 
 the commencement of the wind- 
 ing-up ; with a proviso in the case 
 of a labourer in husbandry, who 
 has contracted for the payment of 
 part of his wages in a lump sum 
 at the end of tlie year of hiring, , 
 that he shall have priority for the 
 whole of such sum or .such jjvo- 
 ])ortional part as the Court decides 
 to be due. And sect. 1 (C) that 
 the above provisions shall apply 
 in the case of a ]»erson dying 
 insolvent, as if he weie a bank- 
 rupt, substituting the date of the 
 (Icatli for that of the receiving 
 order.
 
 876 
 
 OftJie Dutie!^ of an Executor. [Pt. in. Bk. n. 
 
 Damages for 
 injuries done 
 liy deceased to 
 the real or 
 personal jjro- 
 petty of 
 another. 
 
 The damages recovered in an action against an executor 
 or administrator, under the stat. 3 & 4 Wm. IV. c. 42, s. 2, 
 in respect of any injury by the deceased to the real or the 
 personal property of another {q), ai'e by that statute, directed 
 to be payable in like order of administration as the simple 
 contract debts of the deceased. 
 Dilapidations Formerly damages for dilapidations, payable by the exe- 
 
 cutors or administrators of the late incumbent of a benefice 
 to his successor, were postponed, in order of payment, to the 
 debts of the deceased of every description (r). 
 
 But now the amount and mode of payment of damages for 
 dilapidations payable by the executors or administrators of 
 the late incumbent of a benefice to his successor, are governed 
 by the provisions of the Ecclesiastical Dilapidations A^t, 
 1871 (s) (34 & 35 Vict, c. 43). The Bishop, •within three 
 months of the avoidance of the benefice, directs the diocesan 
 surveyor to inspect and report to him what sum is required to 
 make good the dilapidations to which the estate of the late 
 incumbent is liable, the executors or administrators of such 
 late incumbent having a right of entry with their surveyor 
 upon the premises of the vacated benefice until the final 
 settlement of the question of dilapidations. The surveyor 
 sends a copy of his report (when made) to the new incumbent, 
 and also to the executors and administrators of the late 
 \ incumbent, and to this report it is competent to such exe- 
 cutors and administrators, as well as to the new incumbent, 
 i within one mont h's time {t), to state in writing their objections 
 i and transmit them to the Bishop. The Bishop shall in un- 
 contested cases, as soon as conveniently may be after the 
 time for the transmission of objections has expired, and in 
 contested cases after consideration of the whole matter, make 
 an order stating the repairs and their cost for which the exe- 
 
 {q) See^wsf, Pt. IV. Bk. ii. Ch. i. 
 
 §1- 
 
 ()•) Degge's Parson's Counsel- 
 lor, p. 91. Bryan r. Clay, I E. .^ 
 B. .38. 
 
 (s) Sects. 29— 3G. 
 
 {t) The Bishop may, however, 
 if he thinks fit, for special 
 reasons, receive objections at a 
 later period, sect. .3.3.
 
 Cli. li. § in.] Oftlic Faijmcnt of JJehts. 877 
 
 cutors or administrators of the late incumbent are liable, and 
 shall send a copy of such order to the new incumbent, 
 another copy to such executors or administrators, and a third 
 copy to the registrar of the diocese ((/). 
 
 The sum stated in the order as the cost of the repairs, 
 is a debt due from the executors or administrators of the 
 late incumbent, and is recoverable as such at law or in \ 
 equity (x). 
 
 The sum so stated in the order made by the Bishop as the I 
 cost of the repairs, is a debt payable to the new incumbent /I 
 out of the assets of the late incumbent pari passu with the '* 
 debts of his other creditors (y). " 
 
 A very important question arises with respect to con- Paymeut of 
 tingent debts; viz., whether an executor or administrator can conUii''eiit °' 
 pay legacies, or deliver over a residue, where there is an out- "^lebts, or debts 
 
 r ^ o ' ^ ^ ' . ot which an 
 
 standing covenant, or like obligation of the testator, which executor has 
 may or may not be broken hereafter : And a further question 
 occurs, connected in some degree with the present inquiry, 
 viz., whether, under any circumstances, an executor can be 
 allowed payments made to legatees, as against creditors of 
 whose claims he had no notice. But it will be more con- 
 venient to consider these points hereafter, together with the 
 subject of the Payment of Legacies generally (z). 
 
 It may be proper, in conclusion, to consider the subject of Triority of 
 the priority of the debts of the deceased with reference to icspecrtoan 
 the character of an executor de son tort. It has appeared <^^<'fitQr dc su)i 
 
 ^ '■ tort. 
 
 in a former part of this Work, that if a creditor brings an 
 action against such an executor, the defendant may give in 
 evidence, under a plea of _2)Zewc administravit, payments by 
 himself of just debts of the deceased which have exhausted 
 all the assets which have come to his hands (a), although it 
 
 (u) Sects. 34, 35. (;.) Pod, Pt. ui. Bk. lu. Ch. iv. 
 
 (x) Sect. 36. § I. 
 
 (y) lie Monk, 35 C. D. 583. (a) Aiile, p. 218.
 
 I 
 
 878 Of the Payment of Bchts. [Pt. m. Bk. ii. 
 
 will afiford liim no defence, that after action brought and 
 before plea pleaded, he delivered over such assets to the 
 rightful executor or administrator (h). Nevertheless, he is 
 justified, even after action brought, in applying the assets 
 which are in his hands to the payment of a debt of a supe- 
 rior degree. Thus in the case of Oxenham v. Clapp (<:■), 
 the plaintiff declared in assumpsit against the defendant as 
 executrix for work and labour done by him as the attorney 
 of the deceased : The defendant pleaded, that since the 
 exhibiting of the bill she had exhausted the assets which had 
 come to her hands in the payment of a bond debt of her 
 testator : The plaintiff replied, that the defendant was exe- 
 cutrix of her own wrong, that she had never been called on 
 to pay, nor had paid the money due upon the bond, and that 
 at the time of exhibiting the bill she had sufficient assets 
 to satisfy the plaintiff: The defendant's rejoinder merely 
 repeated the allegation in the plea, that she had paid the 
 money due on the bond : Whereupon the plaintiff demurred ; 
 and, after argument, the Court of K. B. gave judgment upon 
 the demurrer for the defendant. 
 
 However, Lord Tenterden observed in this case that he 
 was not prepared to say, that if it had been alleged that the 
 payment had been voluntary, the defendant could have 
 justified paying a debt of equal degree with that of the 
 plaintiff: because that might have been taking an undue 
 advantage of her own wrong. 
 
 It may be inferred from that which has been shown in 
 this section with respect to a rightful executor, that when it is 
 laid down that an executor de son tort may defend himself, 
 in an action by a creditor, by showing that he has applied all 
 the assets come to his hands in the payment of debts, it 
 must be intended that such debts were of equal or superior 
 degree to those upon which the action is brought ((/). 
 
 {h) Ante, p 219. ('/) 2 Black. Comm. 507, SOS. 
 
 (r) 2 B. & Adol. 30!)
 
 Ch. II. § IV.] Inferior before Superior. 879 
 
 SECTION IV. 
 
 Of the payment of an inferior Debt hy an Executor or 
 Administrator before a superior, without notice ; and of 
 suffering Judgment, on an inferior debt, without notice 
 of a superior. 
 
 Having thus" considered tlie priority in degree of the dif- 
 ferent sort of debts due from the deceased, it remains to 
 point out more particularly how this precedence operates in 
 the course of administration of assets by the executor or 
 administrator {e). 
 
 It has already been stated generally, that if an executor An executor 
 or administrator pays a debt of a lower degree before one of ™f^ voiunta- 
 
 ^ '' ° rily pay an 
 
 a higher, he must, on a deficiency of assets, answer that of inferior debt 
 
 v-i LPT- / r\ -r-, • 1 before a supe 
 
 a higher out ot his own estate (/). But it must be under- rior without 
 stood, that at the time of such payment, he had notice of the "°*"^°" 
 existence of the superior debt : For an executor may volun- 
 tarily pay a debt of inferior nature before one of a superior, 
 of which he had no notice (g) : otherwise it would be in the 
 power of a superior creditor to ruin an executor, by sup- 
 pressing his security till all the assets were exhausted in 
 the payment of debts of an inferior degree (h). 
 
 Again, it is a general rule, that an executor or adminis- An executor 
 trator is bound to plead a debt of a higher nature in a bar of fc'ed'huiff- " 
 an action brought against him for a debt of an inferior '"cntonan 
 
 " ° inferior del>t, 
 
 nature, and rfc/is «Z^?vf, if he has not assets for both: other- without notice 
 wise it will be an admission of assets to satisfy both debts (i). may plead the 
 
 judgment in 
 bar to tlie 
 (e) This section has been re- (.7) Harnian r. Ilarman, 2 Show, superior credi- 
 
 tained substantially as it stood in 492 : Provided a reasonable time ^"''" 
 
 the former editions of tliis Worl<, has elai)sed since the testator's 
 
 though the principles laid down death ; for such jiaymcnt, if jire- 
 
 in it will be of much less frequent cipitate, would be; evidence of 
 
 application than formerly by reason fraud : Toller, 192. 
 
 of specialty debts having lost their {h) 3 Bac. Abr. 82, tit. Exors. 
 
 priority by 32 & 33 Alct. c. 40. (L.) 2. 
 
 (/) Ante, x>. 852. {i) liock /•. Leiglitcn, 1 Salk.
 
 880 
 
 Of the Payment of Debts. [Pt. in. Bk. i[. 
 
 What shall be 
 sufficient 
 notice to bind 
 the executor. 
 
 But it is obvious, that this must also be understood with 
 the qualification that the executor or administrator had 
 notice of the superior debt. Accordingly, it was established 
 that an executor or administrator might to an action by a 
 specialty creditor, plead a judgment recovered against him 
 on a simple contract, without notice of the specialty debt, 
 and riens ultra (j) : For, by reason of having had no notice, 
 it was not in the power of the executor or administrator 
 to prevent the recovery of such judgment, by pleading the 
 outstanding superior debt. But in the plea of judgment 
 recovered to the action by the superior creditor, it must be 
 expressly averred that the executor or administrator had no 
 notice of the superior' debt (k). 
 
 With respect to what shall be sufficient notice, there is a 
 distinction between debts of record and other debts. For of 
 debts of record, an executor or administrator is bound 
 to take notice at his peril ; on the principle that every one 
 is presumed to have cognisance of the proceedings in 
 the King's Courts. Thus, in Littleton v. Hihhins (/), 
 a scire facias was brought against executors, upon a judg- 
 ment against their testator in debt : They pleaded, that 
 before they had any conuzance of this judgment, they had 
 fully administered all their testator's goods in paying debts 
 upon obligations : And it was thereupon demurred ; and after 
 argument, adjudged for the plaintiff, that the plea was bad ; 
 for the executors at their peril ought to take conuzance of 
 debts upon record. 
 
 310. 1 Saiind. 333, a. note. The 
 law gives no opportunity of setting 
 up any debts of a superior nature 
 to that of an inferior, except before 
 a plea pleaded : Abbis v. Winter, 
 3 Swanst. 578, note. 
 
 (j) Davies v. Monkhouse, Fitz- 
 gib. 76. The executor, if he has 
 not assets to satisfy both judgments, 
 must plead as above ; for it is held, 
 that if ignorant of the existence of 
 a bond, an executor confess a judg- 
 
 ment on the simple contract, and 
 afterwards judgment be given 
 against him on the bond, he is 
 bound, however insufficient the 
 assets, to satisfy both judgments ; 
 since he might have pleaded the 
 first, if he had not assets for both : 
 Britton v. Batthm-st, 3 Lev. 114. 
 
 (k) Sawyer v. Mercer, 1 Term 
 Rep. (590. 
 
 (0 Cro. Eliz. 793.
 
 CIi. II. § v.] Of Preference hy the Executor. 881 
 
 The difficulty and hardship upon personal representatives, 
 of finding such judgments, was the occasion of the passing 
 of the statute of 4 & 5 Wm. & M. c. 20, which there has 
 lately been occasion to mention (?;i), respecting the docketing 
 of judgments entered in the Courts at Westminster. Of debts 
 by judgments docketed in pursuance of that statute, and of the 
 subsequent statutes now in force (it), and of debts by judg- 
 ments in inferior Courts of Record, of debts due by recog- 
 nisance or statute, and other debts of record, such constructive 
 notice to an executor or administrator is sufficient, and he 
 must at his peril give them precedence in payment to debts 
 of inferior degree (o). 
 
 It must here be observed, that where a judgment has not 
 been docketed pursuant to the statutes, the circumstance that 
 actual notice of it has been received by the executor or 
 administrator will not entitle it to any priority or preference 
 in administration ; because the effect of the statutes is, that a 
 judgment not docketed in pursuance of them is to be con- 
 sidered only as a simple contract debt (p). 
 
 But with respect to other species of debts, there must be 
 actual notice ; and it has been asserted that such notice must 
 be by suit (5). But it seems clear, that an executor, if he 
 be by any means apprised of a debt of a higher nature, would 
 not be justified in exhausting the assets in the discharge of 
 one which is inferior (r). 
 
 SECTION V. 
 
 Of the Power of Preference hy an Executor or Admmistrator 
 among Creditors of equal degree. 
 
 The situation of an executor or administrator is frequently 
 one of great difficulty. The law imposes on him the burthen 
 
 {ill) Ante, p. 862. {q) Brooking v. Jennings, 1 Mod. 
 
 (n) See ante, pp. 862, 863. 175. 
 
 (o) Toller, 278, 292. (/•) Toller, 292. Oxenham v. 
 
 Ijj) See ante, p. 862. Hall v. Clai)]), 2 B. & Adol. 312, p^-r 
 
 Tapper, 3 B. & Ad. 655. Tarke and Patteson, J.J. 
 
 W.E. — VOL. I. 3 L
 
 882 
 
 Of the Payment of Debts. [Pt. in. Bk. ii. 
 
 Of controlling 
 the executor's 
 preference by 
 proceedings at 
 law or in 
 equity. 
 
 Whether an 
 executor after 
 commencement 
 of an action 
 by a creditor 
 can voluntarily 
 pay another 
 creditor of 
 equal degree. 
 
 of paying the debts of the testator or intestate in a par- 
 ticular order. On the other hand, it confers on him certain 
 privileges. One of those privileges is, that among cre- 
 ditors of equal degree, he may pay one in preference to 
 another (s). 
 
 But this election may, in some measure, be controlled by 
 legal or equitable proceedings against him, of which it will be 
 proper to take notice in this place. 
 
 If one of several creditors of equal degree, suing for him- 
 self, sues the executor or administrator and obtains judgment 
 against him, whether in the Queen's Bench or Chancery Divi- 
 sion of the High Court, such creditor must be satisfied before 
 the rest, and thus the preference of the executor or adminis- 
 trator-is altogether precluded. 
 
 Before the Judicature Act the established rule was that if 
 an executor or administrator had notice of the commencement 
 of an action at law by a creditor, he was restrained from making 
 a voluntary payment to any other creditor of equal degree (t), but 
 if he had notice of the commencement of a suit in equity and 
 before decree he paid any particular creditor in preference, he 
 was allowed such payment in passing his accounts {u). 
 
 Since the Judicature Act the rule in equity and not at law 
 prevails (x), and the voluntary payment of a creditor by an 
 executor or administrator with notice of the commencement 
 of an action by another creditor whether in the Queen's 
 
 (s) By Abbott, C. J., in Lyttle- 
 ton V. Cross, 3 B. & C. 322. Where 
 an executor, having assets of his 
 testator, either in money or goods, 
 before any bill filed for the admi- 
 nistration of the estate, applied to 
 a creditor of the testator for a loan 
 of a sum equal to the amount of 
 his debt : and the creditor accepted 
 the personal security of the exe- 
 cutor for the amount, and released 
 the debt against the estate, it was 
 held by Wigram, V.-C, that the 
 executor having, by such substitu- 
 
 tion of his own security for that 
 of the estate, discharged the debt 
 as against the estate, should not 
 be treated as a mere purchaser 
 of the debt, but was entitled to be 
 allowed the amount of it as a debt 
 of the testator preferred and paid : 
 Hepworth v. Heslop, 6 Hare, 561. 
 
 (0 Parker r. Dee, 3 Swanst. 531. 
 
 (h) Darston v. Lord Orford, 
 Colles, 229. 
 
 (x) Judic. Act, 1873, sect. 25, 
 sub-s. 11.
 
 Ch. 11. § v.] Of Preference hy the Executor. 883 
 
 Bench or Chancery Division of the High Court and hcfore 
 judgment is a good payment, and will be allowed to him in 
 passing his accounts (/y) . 
 
 Where a creditor of the deceased sues the executor or An executor 
 administrator in the Chancery Division not for his own debt ''reJerence '" 
 alone, but /or himself and all other creditors, and a judgment after a decree 
 
 , . to account in a 
 
 IS obtamed for an account and a distribution ; this is con- suit by one 
 sidered as in the nature of a judgment for all the creditors {z) : St'eif and all 
 and after such a judgment although the legal priorities of others: 
 creditors are not affected thereby ((0> the power of preference, 
 which the executor or administrator enjoys at law among 
 creditors of equal degree, no longer exists ; for no payment 
 to any creditor, made after notice of the judgment, will be 
 allowed in his account (h). 
 
 It may here be observed that where an executor or admi- a creditor who 
 nistrator, before a suit has been commenced for the adminis- ^^id'^b'^'^an'*'^^^^ 
 tration of the estate of the deceased, has paid some of the executor shall 
 
 not receive 
 
 creditors a certain proportion of their debts, the Court will any further 
 not make any further payment to them, out of either the the Court '^""^ 
 legal or equitable assets, until all the other creditors are ""t'l ^-i' i^^ip 
 
 ^ -^ other creditors 
 
 paid proportionably ; This point was decided by Sir L. are paid pru- 
 Shadwell, V.-C, on the ground, that when a creditor goes 
 into the Master's Office to establish his debt, he must show 
 what was the amount due at the death of his debtor and 
 
 (y) Re Radcliffe, 7 C. D. 733: been obtained at the same moment, 
 
 approved by the Court of Appeal and the jud,L,'uient creditor had ob- 
 
 in the late case of Vibart v. Coles, taincd no priority : Parker i: Rin<r- 
 
 24 Q. B. D. 364. ham, 33 Beav. 535. 
 
 (z) Goate v. Fryer, 3 Bro. C. C. (a) Nunn v. Barlow, 1 Sim. & 
 
 22. S. C. 2 Cox, 202. Paxton v. Stii. 588. 
 
 Douglas, 8 Ves. 520. Perry v. (b) Jones v. Jukes, 2 Ves. 
 
 Phelips, 10 Ves. 40. Accordingly, 518. Mitclielson v. Piper, 8 Sim, 
 
 where a creditor obtained a judg- 04. Irby v. Irby, 24 Beav. 525. 
 
 ment against the executor, and on But in taking tlie account, tlie 
 
 the same day a decree was made executor or administrator has a 
 
 for the administration of assets, it right to stand in the place of the 
 
 was held that the judgment and 'creditor he has paid : Jones v. 
 
 decree ouglit to be deemed to have Jukes, 2 Ves. 518. 
 
 3 L 2 
 
 portionably.
 
 884 Of the Pcujmad of Belts. [Pt. iii. Bk. ii. 
 
 what he has received smce ; and as it is one of the leading 
 maxims of a Court of Equity, that equality is equity, the 
 creditors who have been paid in part ought not to receive any 
 further part either of the legal or equitable assets, until 
 the other creditors have been paid the same proportion of 
 their debts (c). 
 
 SECTION VI. 
 
 Of the Right of the Executor or Administrator to retain a 
 Debt due to him from the Testator or Intestate. 
 
 As an executor or administrator, among creditors of equal 
 degree, may pay one in preference to another, so it is 
 another of his privileges that he has a right to retain for his 
 own debt due to him from the deceased, in preference to all 
 other creditors of equal degree (d). 
 He cannot, in This remedy arises from the mere operation of law, on 
 
 any case, re- 
 tain against a the grouud that it were absurd and incongruous that he 
 
 superior de- should sue himself, or] that the same hand should at once 
 s^*^^' pay and receive the same debt : And, therefore, he may 
 
 appropriate a sufficient part of the assets in satisfaction of 
 his own demand : otherwise he would be exposed to the 
 greatest hardship ; for since the creditor who first com- 
 menced an action was entitled to a preference in payment, and 
 the executor can commence no action, he must, in case of an 
 insolvent estate, necessarily lose his debt, unless he has the 
 right of retaining. Thus, from the legal principle of the 
 priority of such creditor as first commences an action, the 
 doctrine of retainer is a natural deduction (e). But the 
 privilege is accompanied with this limitation, that he 
 
 (c) Wilson V. Paul, 8 Sim. 63. sect. 10 of the Jud. Act, 1875, and 
 Mitehelson v. Piper, ibid. 64. his right to retain is not affected 
 
 (d) Woodward v. Lord Darcy, by that section. Lee v. Xuttall, 
 Plowd. 184. An executor's right 12 C. D. 61. Ee May, 45 C. D. 
 to retain a debt due to himself 499, 502. 
 
 does not make him a "secured (e) 2 Black. Com. 511. 
 
 creditor" within the meaninfr of
 
 Ch. 11. § vl] 
 
 Of Retainer. 
 
 885 
 
 should not retain Ins own debt as against those of a higher 
 degree : for the law places him merely in the same situation 
 as if he had sued himself as executor, and recovered his 
 debt, which there could be no room to suppose during the 
 existence of those of a superior order (/"). The right of Right of re- 
 retainer by an executor has not been abolished by Hinde lboiished\y 
 Palmer's Act (32 & 33 Vict. c. 46), nor has it been enlarged Hinde Palmer's 
 so as to enable the executor to retain his debt against a cre- 
 ditor of higher degree than himself (^r). 
 
 It follows, therefore, that an executor who is only a simple 
 contract creditor of his testator cannot retain his debt as 
 against a specialty creditor Qi). 
 
 If an executor dies after having claimed a right of retainer When an 
 without having actually exercised it, leaving another executor 
 
 executor of an 
 executor may 
 retain. 
 
 (/) 3 Black. Com. 18. Com. Dig. 
 Admon. (C. 2.) 1 Saund. 333 
 (note (6), to Hancocke v. Prowd.) 
 Godolph. pt. 2, c. 11, s. 3. Toller, 
 295. However, according to the 
 opinion of other writers, the princi- 
 ple on which the executor's right 
 to retain is founded, is, " In equali 
 jure potior est conditio possidentis :" 
 Fonhlanq. Treat. Eq. B. 4, Pt. 2, 
 c. 2, s. 2, note {m). Where a mort- 
 gagor dies insolvent and the mort- 
 gagee then realises his security, and 
 after paying himself the mortgage 
 debt out of tiie proceeds has a sur- 
 plus in his hands, he cannot, al- 
 though he be executor of the mort- 
 gagor, retain that surplus in pay- 
 ment of a simple contract debt due 
 to himself from the mortgagor, and 
 so give himself a preference over 
 other creditors of a higher degree, 
 but must hand it over to the mort- 
 gagor's legal personal representa- 
 tive as part of his estate : Talliot 
 V. Frere, 9 C. D. 568. And see the 
 statement of the principle of " re- 
 tainer," by Jessel, M. 11., in tliis 
 
 case, p. 570. A balance order 
 under the Companies Act against 
 the personal representative of a 
 deceased contributory does not 
 constitute the liquidator a judg- 
 ment creditor so as to give him a 
 priority and to prevent the exer- 
 cise by the executor of his right of 
 retainer : Re Hubback, 29 C. D. 
 934. 
 
 {(j) Wilson V. Coxwell, 23 C. D. 
 764. Crowder v. Stewart, 16 C. D. 
 368. Re Jones, 31 C. D. 440. 
 
 {]}) Wilson V. Coxwell, 23 C. D. 
 764. In this case, where a right of 
 retainer was claimed on behalf of 
 the estate ofthe executor, the order 
 made was that (1) the costs be paid ; 
 (2) the remaining assets be appor- 
 tioned among all the creditors on 
 the footing of giving them all an 
 equal dividend ; (3) the dividend 
 be jiaid in full to the specialty cre- 
 ditor ; (4) the executor to retain 
 his debt out of the residue ; (5) 
 the surplus (if any) to be divided 
 equally among the other simple 
 contract creditors.
 
 886 
 
 Of the Payment of Debts. [Pt. iii. Bk. n. 
 
 Executor may 
 retain out of 
 assets received 
 after a judg- 
 iiient for an 
 account. 
 
 Right to retain 
 unaffectfd by 
 fact that exe- 
 cutor is suin^ 
 on behalt of 
 himself and 
 all other 
 creditors. 
 
 The ri-ht to 
 retain is not 
 
 of the testator surviving, the executors of the deceased exe- 
 cutor have the right of retainer for the benefit of his estate (i). 
 
 This principle has been subsequently affirmed subject to 
 this restriction, viz., that the executor's right to retainer is 
 limited to so much of the assets of his testator as come into 
 the possession or control of the executor or are paid into 
 Court during his lifetime, and, if after asserting in his life- 
 time a right of retainer he die without exercising it, it is only 
 in respect of these that his representatives may exercise that 
 right for the benefit of his estate {k). 
 
 This privilege of the personal representative to retain for 
 his own debt exists, notwithstanding a judgment for an account 
 has been made, in a suit by the other creditors, for the 
 administration of the assets : and not'^ithstanding the 
 assets out of which he seeks to retain his debt came to his 
 hands after the judgment : for the judgment does not aflfect 
 the legal priorities of creditors : and there is no distinction in 
 this respect between assets possessed prior to the judgment, 
 and subsequent to it (/)• And in the administration of a tes- 
 tator's estate, the right of an executor to retain for his own 
 debt is not affected by the circumstances that he is himself 
 the plaintiff suing on behalf of himself and all the other cre- 
 ditors, and that he has submitted to account in the ordinary 
 form of an administration decree (?n). 
 
 An executor who has acquired by bequest from a creditor a 
 debt which the creditor in his lifetime has proved in a suit for 
 the administration of the testator's estate, has no right of re- 
 tainer in respect of such debt, as if it had originally been due to 
 himself (m). 
 
 The right of retainer is not lost by the circumstance of 
 
 (i) Wilson V. Coxwell, 23 C. D. 
 764. 
 
 {k) Re Comptoii, 30 C. D. 15. 
 In this case Cotton, L. J., held that 
 unless the case of Wilson v. Cox- 
 well were restricted in this way, 
 that case must be treated as over- 
 
 Barlow, 1 Sim. & 
 
 ruled. 
 
 (?) Nunn 
 Stu. 588. 
 
 (m) Campbell r. Campbell, 16 
 C. D. 198. 
 
 {n) Jones v. Evans, 2 C. D. 420. 
 
 i
 
 Ch. IT. § yl] Of Retainer. 887 
 
 the executor or administrator having paid into Court, in a lost by pay- 
 creditor's suit, the money which has been received on ac- ^oney into 
 count of the assets of the deceased (o) : And where the fund ^°"^*- 
 in Court is insufficient to discharge the debt of the executor 
 or administrator, his right of retainer will prevail against 
 the plaintiff's right to have the costs of the suit satis- 
 fied (_p). And the right of retainer by an executor was held 
 to prevail against the plaintiff's right to the costs of the action, 
 and against the debts of the other creditors, in respect of 
 policy moneys paid into Court to the credit of the action by an 
 insurance company, in pursuance of an order made on the 
 application of the plaintiff and in the presence of the execu- 
 tor, on the ground that the payment into Court was in 
 substance a payment by the executor {q). 
 
 After a receiver is appointed in an administration action, if 
 assets are collected by the receiver, there is no right of 
 retainer by the executor ; but if before the appointment of 
 the receiver the executor has received assets, which he after- 
 wards pays over to the receiver, he has a right of retainer, 
 which he does not lose from the simple fact that the money 
 was paid to the receiver (r) . The reason for this seems to be 
 that when a receiver is once appointed, a debtor to the estate 
 may pay his money direct to the receiver and obtain a good 
 
 (o) Davenport v. Moss, 14 W. R. perfected. Edwards v. Edwards, 
 
 453. Re Harrison, 32 C. D. 395. 2 C. D. 291. But in a case where 
 
 {p) Chissum v. Dewes, 5 Russ. an administrator defendant in an 
 
 29. Langton v. Higgs, 5 Sim. 228. administration action was also 
 
 Tipping V. Power, 1 Hare, 405, solicitor to the plaintiff, it was held 
 
 411. Hall r. McDonald, 14 Sim. 1. that the defendant, between the 
 
 (5) Richmond I!. White, 12 C. D. time of the order of the appoint- 
 
 361 (reversing the decision of Hall, ment and the perfecting of the 
 
 V.-C. 10 C. D. 727). receiver's security, stood in no 
 
 (r) Re Harrison, 32 C. D. 395. better position than he wouhl have 
 Re Jones, 31 C. D. 440. Richmond <lone alter the receiver had per- 
 V. White, 12 C. D. 361. Generally fected his .security, and therefore 
 the appointment of a receiver takes could not exercise his right of re- 
 effect by the order of appointment tainer over moneys paid to him 
 upon his giving security, and is of during that time. Re Birt, 22 
 no effect until the security has been C. D. 604.
 
 Of the Payment of Debts. [Pt. iii. Bk. ii. 
 
 No retainer 
 allowed out of 
 equitable 
 assets. 
 
 Nor out of 
 estate devised 
 to executor as 
 trustee to pay 
 debts. 
 
 discharge, so that the appointment of a receiver prevents the 
 money actually or theoretically coming into the executor's 
 hands, and tcithout possession there can he no retainer (s). 
 
 It should seem, however, that an executor cannot retain, 
 out of such of the assets as are merely equitable, to pay the 
 whole of a debt due to him from the deceased, but only a 
 proportionable part with the other creditors (0 : For in 
 equity all debts are equal ; and a Court of Equity will 
 never assist a retainer {u). 
 
 A trustee of an estate, devised or conveyed to him for the 
 purpose of paying debts, has no right of retainer thereout 
 whether he is executor or not (x). 
 
 (5) Re Jones, 31 C. D. 440, 444, 
 per Kay, J. 
 
 {t) As to the distinction Ijetween 
 equitable and legal assets, see 
 post, Pt. IV. Bk. I. Ch. I. Real 
 estate is by the stat. 3 & 4 Will. 
 IV. c. 104, made assets for the 
 payment of debts only in equity 
 and an executor has no right of 
 retainer against it. Walters v. 
 Walters, 18 C. D. 182. Be lllidge, 
 24 C. D. 654, 658. 
 
 {u) Anon. 2 Cas. Chanc. 54. 
 Hopton V. Dryden, Prec. Chanc. 
 181. Bailey v. Ploughman, Mosely, 
 95. It was stated by Vemey, 
 M.R., that "the rule of this Court 
 in cases of retainer is, unless the 
 party can show a legal right to re- 
 tain, we never give it him : if he 
 can show a legal right, we never 
 take it away from him : " Chap- 
 man V. Turner, Vin. Abr. Exors. 
 (D. 2.) pi. 2. Ee Baker, 44 C. D. 
 272. 
 
 (x) Bain v. Sadler, L.E. 12 Eq. 570. 
 An heir-at-law or devisee has no 
 right of retainer either out of the 
 proceeds of sale of real estate, or out 
 of rents received bv him for a debt 
 
 due to him on simple contract from 
 the testator or intestate : but 
 semhle, an heir-at-law or devisee 
 when the estates are not charged 
 with debts, may, notwithstanding 
 Hinde Palmer's Act (32 & 33 Vict, 
 c. 46, see ante, p. 869), retain a 
 debt to which he is entitled by 
 specialty in which the heirs are 
 bound. Re lllidge, 27 C. D. 478 ; 
 reversing the decision of Chitty, J. 
 24 C. D. 654, as regards debts to 
 which an heir-at-law is entitled by 
 specialty in which the heirs are 
 bound. 
 
 A devisee who was surety for the 
 testator by specialty in which the 
 heirs were bound (who, if he had 
 paid off the debt would have had a 
 right to the benefit of the specialty) 
 not having paid it off, can only be 
 treated as a simple contract creditor 
 aiid has no right of retainer ; but 
 a devisee, who is a creditor by spe- 
 cialty in which the heirs are bound, 
 is entitled to retain, because, in the 
 latter case, there is a common law 
 right of action against the heir who 
 is allowed the right of retainer as 
 he cannot sue himself ; whereas.
 
 Ch. II. § VI.] 
 
 Of Retainer 
 
 889 
 
 An executoi* or administrator may retain not only for 
 debts which he claims beneficially, but also for those to 
 which he is entitled as trustee. Thus, in Plumer v. Mar- 
 chant (y), A., before his marriage, covenanted with B. and 
 C. to leave them by his Will, or that his executors, within 
 six months after his death, should pay them 700/., in trust 
 to pay the interest to his wife for life, and on her death, to 
 divide the principal among his children, and, in default of 
 children, as he should appoint, and bound himself, his heirs, 
 executors, and administrators, in a penalty for performance : 
 On his dying before his wife, without issue and intestate, it 
 was holden that B., in the character of administrator, might 
 retain assets to that amount during the life of the widow, 
 against a bond creditor who sued before the six months 
 were elapsed. 
 
 Conversely, the executor or administrator may retain for 
 debts due to another in trust for him {z). 
 
 The executor 
 may retain for 
 debts due to 
 him as trustee: 
 
 in the former case the simple con- 
 tract creditor could only obtain a 
 judgment as against the real estate 
 for the benefit of himself and all 
 other creditors. Hinde Palmer's 
 Act, although it takes away priority 
 of creditors by specialty, does not 
 take aM-ay the common law action 
 against the heir-at-law nor the con- 
 sequent right of retainer : ^jer 
 Cotton, L.J., in Pc lUidge (ubi 
 sup.) at p. 482, referring to and 
 approving the decision of Wickens, 
 V.-C, in Ferguson v. Gibson, 
 L. R. 14 Eq. 379. 
 
 The Courts of Common Law re- 
 cognized the executor's right of re- 
 tainer in respect of a debt due, to 
 him as cestui que trust: (Roskelley 
 V. Godolphin, T. Raym. 483 ; Mar- 
 riot V. Thompson, Willes, 186 ; 
 Loane v. Casey, 2 W. Bl. 965) ; 
 to the extent of debts which ac- 
 cording to the trust were payable 
 
 to the cestui que trust, and provided 
 that the debt or demand was one 
 of which account could be taken 
 by a jury : De Tastet v. Shaw, 1 
 B. & A. 664. However, in Courts 
 of Equity the right of retainer of 
 an executor was recognized in a 
 creditor's suit in respect of a debt, 
 the amount of which could only be 
 ascertained by a Court of Equity : 
 Re Morris's Estate, L. R. 10 Ch.68. 
 
 (?/) 3 Burr. 1380 (cited 3 A. & 
 E. 858, mr Curiam). Sander r. 
 Ileathfield, L. R. 19 Eq. 21. Crow- 
 dev V. Stewart, 16 C. D. 368. One 
 of several executors is entitled to 
 a right of retainer in respect of a 
 mortgage debt due from the testa- 
 tor to a Ijody of trustees of wlionr 
 tliat executor is one. lie Ilubliack, 
 29 C. D. 934. 
 
 (z) Cockroft V. Black, 2 P. Wms. 
 298 : Franks v. Cooper, 4 Yes^. 
 763 : Loomes v. Stotherd, 1 Sim. 
 
 he may retain 
 for debts due 
 to him as 
 cestui que 
 trust.
 
 890 
 
 Of the Payment of Debts. [Pt. in. Bk. ii. 
 
 Retainer hy an 
 administrator 
 durante 
 viiiuyritate : 
 
 1iy an ailnii- 
 nistrator du- 
 rante demen- 
 tia : 
 
 by a creditor 
 administrator 
 
 Where the person entitled to administration is an infant, 
 and an administration durante minoritate is granted, not 
 only may the administrator retain for his own debt (a), but 
 also if the infant in point of right has a title to retain for 
 a debt due to himself, the administrator may insist on 
 that right {h). So where the creditor is a lunatic, and 
 administration has been granted to the defendant for the 
 use of the lunatic, the right of retainer shall not be pre- 
 judiced {<:). 
 
 If administration be granted to a creditor, as such, and 
 afterwards be repealed, at the suit of the next of kin, such 
 creditor shall retain against the rightful administrator {d). 
 On the petition, however, of the other creditors, the Court, 
 on granting administration to a particular creditor, as such, 
 will compel him to enter into articles to pay debts of equal 
 degree in equal proportions, without any preference of his 
 own {e) ; and administration to a creditor is generally so 
 granted (/). But under the common decree against an 
 administrator, who has obtained the letters of administration 
 as a creditor, directing the accounts to be taken in the usual 
 way, and the assets to be applied in a due course of adminis- 
 tration in payment of the intestate's debts, the Master has 
 no authority to disallow the administrator's claim to retain, 
 on proof by aflS davits that there has been a waiver of the 
 right on his part, by arrangement with the other creditors : 
 In order to justify such a departure from the ordinary 
 course of administering assets in a Court of Equity, there 
 
 & Stu. 461, in wliicli last case Sir 
 J. Leach, V.-C, held that as an 
 executor may retain his own debt 
 or the debt of his trustee, so a de- 
 visee of the realty niay retain for 
 his own specialty debt or the debt 
 of his trustee. See further on the 
 right of the heir to retain, Player 
 V. Foxhall, 1 Russ. Chanc. Cas. 
 538. Re lUidge, 27 C. D. 478. 
 («) Roskelley v. Godolphin, T. 
 
 Eavm. 483. Com. Dig. Admon. 
 (F.) 
 
 (ft) Franks r. Cooper, 4 Ves. 
 764. 
 
 (f) Ihid. 763. 
 
 (rf) Blackborough v. Davis, 1 
 Salk. 38. 
 
 (f) Toller, 106. 
 
 (/) Fonbl. Treat, on Eq. Bk. 4, 
 Pt. 2, c. 2, s. 2, note (???).
 
 Ch. ir. § vl] 
 
 Of Retainer. 
 
 891 
 
 ought to be a specific instruction to the Master to that 
 efifect {g). 
 
 An executor of an executor is entitled to retain, out of 
 the assets, debts due from the testator, either in his own 
 right, or as the executor of the deceased executor (/i). So 
 where a bond creditor took out administration de bonis non 
 to his debtor, and died before he had made any election in 
 what particular effects he would have the property altered 
 by retainer ; it was held that the executor of the creditor, in 
 accounting for the assets of the debtor, might deduct the 
 debt (i). 
 
 One of three executors, who is also one of two joint 
 creditors, has a right of retainer in respect of his joint 
 debt {k). 
 
 But it was held (/), that the administrator cum testa mcnto 
 annexo of a deceased executor, in accounting for the execu- 
 tor's receipts of the assets, was not entitled, by way of 
 discharge, to the amount of a debt owing from the testator 
 to the executor jointly with another person as partner, the 
 
 by executor 
 of executor : 
 
 by executor of 
 administrator : 
 
 by executor 
 who is joint 
 creditor : 
 
 by adminis- 
 trator of 
 executor to 
 whom a debt 
 is due jointly 
 with another : 
 
 {g) Spicer v. James, 2 Myl. & K. 
 387. Thompson v. Cooper, 1 Coll. 
 81. 
 
 (/t) Hopton r. Dryden, Prec. Ch. 
 180. Thomson v. Grant, 1 Euss. 
 Chanc. Cas. 540, in notis : But not 
 the executor of one of several exe- 
 cutors, one or more of whom is 
 still living : Prec. Ch. 181. Nor 
 can the executors of an executor, 
 if they are not the personal repre- 
 sentatives of the original testator, 
 retain assets which never came in- 
 to the hands or under the control 
 of the original executor, an execu- 
 tor's right of retainer being limited 
 to 80 much of the assets of his tes- 
 tator as come into the possession 
 or under the control of the executor 
 or are paid into Court during his 
 lifetime. He Compton, .30 C. 1). 
 
 15. The judgment in this case 
 placed a restriction upon the case 
 of Wilson r. Coxwell, 23 C. D. 764, 
 a decision of Pearson, J., in which 
 Hopton V. Diyden was distin- 
 guished. 
 
 (i) Weeks v. Gore, 3 P. Wms. 
 184, note to Croft v. Pyke, in 
 which latter case a point arose, but 
 was not decided, viz. whether if a 
 delator dies, having made his credi - 
 tor executor, and tlien the executor 
 dies, having intermeddled witli tiie 
 goods, but before probate, and be- 
 fore any election made, his execu- 
 tor can retain. 
 
 (k) Crowder r. Stewart, 16 C. D. 
 368. Rr Hubback, 29 C. D. 934. 
 
 (/) Burge r. P.ruttnu, 2 Hare, 
 373.
 
 f 
 
 892 0/ the Payment of Debts. [Pt. iii. Bk. ii. 
 
 executor having predeceased such partner, without having, 
 in point of fact, done any act in the exercise of his right ot 
 retainer. It was not, however, at all questioned in this case, 
 but indeed conceded by the Court (Wigram, V.-C.) that one 
 of two partners to whom a debt is due, being made an exe- 
 cutor, might retain that debt. But it was ruled that if such 
 an executor dies, so that the interest in the debt wholly 
 devolves on his surviving partner, the right of retainer 
 ceases, and cannot be exercised by the representative of the 
 executor. 
 
 A widow, the administratrix of her late husband, whose 
 estate was insolvent, was allowed to retain out of the assets 
 come to her hands as administratrix the amount of a loan to 
 him in his business out of her separate estate (m). 
 
 It is clear, as there has already been occasion to show (n), 
 that an executor de son tort cannot retain for his own debt, 
 even of a superior degree to that upon which he is sued. 
 There is, indeed, one exception to this rule ; for a party who, 
 by stat. 43 Eliz. c. 8, becomes executor de son tort, in conse- 
 quence of a gift to him of the intestate's effects by an admi- 
 nistrator who has obtained the grant fraudulently (o), is, by 
 the express provision of that Act, allowed to retain (2?). 
 case where the If the same person be the personal representative both of 
 
 representative tpiti i • p ^ iv 
 
 of the creditor the Creditor and of the debtor, he may retam out 01 the enects 
 representative ^^ wliich he is possessed as the representative of the debtor 
 of the debior : ^q satisfy the debts due to him as the representative of the 
 creditor (q). 
 
 by executor de 
 
 son tort : 
 
 (m) Be May, 45 C. D. 499, in 
 which case the operation of sect. 10 
 of the Judicature Act, 1875, as in- 
 corporating the rules of adminis- 
 tiation in bankruptcy into the 
 administration of the insolvent 
 estate of a deceased person was 
 discussed. The ahove section does 
 not aifect the right of retainer, 
 Ih. p. 502, 503. See also Lee v. 
 Nuttall, 12 C. D. 61, 65. 
 
 (n) Ante, p. 220. 
 
 (0) Ante, p. 210. 
 
 (p) Com. Dig. tit. Administra- 
 tor, (C. 3). Wentw. Off. Ex. Ch. 14, 
 p. 336, 14th elit. Vernon v. Cur- 
 tis, 2 H. Black. 26, note (h). Tol- 
 ler, 366. 
 
 (q) Burnet v. Dixe, 1 Eoll. Ahr. 
 922. Exors. (L.) 2. Fox v. 
 Garrett, 28 Beav. 16 ; in which 
 last case both estates were being
 
 *-i*. 
 
 Ch. 11. § vl] Of Retainer. 893 
 
 If there are two joint and several obligors, and one of them if two are 
 
 T 1 . T 1 1 T 1 • • 1 l^^ jointly and se- 
 
 dies, having made the obligee his executor, m such case the veraily bound, 
 obligee, if he has not received satisfaction out of the assets tJig o°bi^„^^'^^^ 
 of the deceased obligor, may sue the survivor ; for, being bis executor, 
 
 _ he may either 
 
 jointly and severally bound, he may sue which of them he retain or sue 
 pleases, and though the debt be one, yet the obligations are 
 several ; and no assets appear of the value of the debt to 
 retain ; and there might be a judgment, against which he 
 could not retain (?•)• 
 
 So if the obligor appoint the obligee his executor, and 
 there are no assets out of which he may retain, the obligee 
 may sue the heir if he is bound (s). 
 
 If two are jointly bound in an obligation, the one as ^ surety, 
 
 executor of 
 
 principal, and the other as surety, and on the principal's principal who 
 death, the surety becomes his personal representative, and, jj^'ound. La 
 on forfeiture of the bond, discharges the debt, he has the ^etam. 
 ordinary right of retainer for that debt, in preference to all 
 other creditors of equal degree (t) . 
 
 If an executor who is a surety for a debt of a testator, pays 
 the debt, he has, as we have seen, a right of retainer ; but he 
 must have paid the debt as surety while he has the assets in 
 
 administered by the Court, and it entitled to the Crown's priority in 
 
 was. held that the administrator theadministrationof his principal's 
 
 was bound so to retain at the in- estate. Be Churchill, 39 C. D. 174. 
 
 stance of the parties interested in Where the wife of the testator hav- 
 
 the creditors estate. ing real estate settled on her for 
 
 (r) Crosse v. Cocke, 3 Keb. 116. life witli a general power of ap- 
 
 lafra, Pt. III. Bk. ill. Ch. li. § IX. pointment, had appointed it as 
 
 (s) Wanklbrd v. Wankford, 1 collateral security for a mortgage 
 
 Salk. 304. See further on this debt of the testator and had been 
 
 subject, infra, Pt. ill. Bk. iii. Ch. left by the testator as his execu- 
 
 III. § IX. trix, it was held that her right as 
 
 (<) Boyd V. Brooks, 34 Beav. 7, surety to be indemnified created a 
 
 affirmed on appeal, 34 L. J. Ch. simple contract debt only and did 
 
 605. Bathurst v. De la Touchc, not entitle her to retain as against 
 
 34 Beav. 9, note. Wildes v. Dud- specialty creditors. Ferguson v. 
 
 low, L. E. 19 Eq. 198. An exe- Gibson, L. 11. 14 Eq. 379. Tliis 
 
 cutor who was surety to the Crown, decision of Wickens, V.-C, was 
 
 for the testator and has paid the approved by Cotton, L. J., in Re 
 
 debt of his deceased prhicipal, is Illidge, 27 C. D. 478, 482.
 
 894 
 
 Of the Payment of Debts. [Pt. in. Bk. ii. 
 
 Damages which 
 are arbitrary 
 cannot be 
 retained. 
 
 An executor 
 cannot retain 
 against his co- 
 executor : 
 
 he may retain 
 out of a 
 balance found 
 to be due from 
 himself and 
 his co-executor 
 to the estate. 
 
 Retainer for 
 debt moie 
 than sis years 
 old. 
 
 his control ; and therefore where an executor did not make 
 the payment as surety till after the appointment of a receiver, 
 it was held that as at the time he paid the debt there was no 
 money in his hands he had no right of retainer (»)• 
 
 Damages, which in their nature are arbitrary, such as 
 damages founded on tort, cannot be retained {x). 
 
 Where there are co-executors or co-administrators, each 
 being a creditor of the deceased, the one cannot retain for 
 his own debt to the prejudice of the other ; for several 
 joint executors or administrators are considered but as one 
 person in law ; the possession of one is the possession of 
 the other ; the receipt of one is the receipt of the other ; 
 and, therefore, the retainer of one must be considered as 
 the retainer of the other, and must enure, for their mutual 
 benefit, in the discharge of the debts of both in propor- 
 tion {y). 
 
 In Kent V. Pickering {z), where, in a creditor's suit, a 
 balance had been found, by the Master's report, to be jointly 
 due from two executors to their testator's estate, and one of 
 the executors was a creditor, it was held by Lord Langdale, 
 M. K., that such executor had a right to retain his debt out 
 of the assets consisting of the balance due from himself and 
 his co-executor. 
 
 It should seem, that an executor or administrator may 
 retain for a d'ebt due to himself though it may be more than 
 six years old ; for as an executor may pay a debt to another 
 though he might have pleaded the Statute of Limitations, 
 why may he not pay himself ? (a). In Hopkinso7i v. Leach (b) 
 
 (u) Re Harrison, 32 C. D. 395. 
 
 (x) Loane v. Casey, 2 W. Black. 
 968, by Blackstone, J. Claims by 
 an executor for breach of a cove- 
 nant to assi,L,'n a policy and to re- 
 place furniture, if 8oJd, by other 
 furniture of like value, are claims 
 for damages for breach of pecu- 
 niary contracts for Avliich there is 
 a certain standard or measure, and 
 
 may therefore, on the authority ot 
 Loane v. Casey, be retained. Ee 
 Compton, 30 C. D. 15. 
 
 (ll) Chapman v. Turner, 1 1 Vin. 
 Abr. 72, tit. Exors. (D.) 2. 
 
 (s) 2 Keen, 1. 
 
 (a) Post, Pt. IV. Bk. II. Ch. ir. 
 §n. 
 
 (b) 7 May, 1819. :MS. Madd. 
 Pract. 583, 2nd edit.
 
 Cli. II. § VI J 
 
 Of Retainer. 
 
 895 
 
 Sir John Leach, V.-C, was of opinion that the executor 
 might retain in such a case : But his Honor directed the 
 opinion of a Court of Law to be taken. The right to retain 
 was confirmed in Stahlschmidt v. Lett (c). 
 
 An executor or administrator cannot, however, retain a 
 debt due to himself if it is such as he is prevented from 
 enforcing by reason of the Statute of Frauds (d). 
 
 (c) 1 Sm. & G. 415. See also 
 Hill V. Walker, 4 Kay & J. 166. 
 Accord. So the creditor of an 
 intestate is entitled to a grant of 
 administration, althougb. his right 
 
 of action is barred by the statute. 
 Coombs V. Coombs, L. E. 1 P. & D. 
 288. 
 (rf) Ee Rownson, 29 C. D. 358. 
 
 END OF VOLUME I. 
 
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