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[Second Edition nearly ready.] " The work is well done, and will be highly useful. The Practice and Procedure of the Divorce side of the Probate Division is skilfully and very fully handled. . . . The collection of Forms and Precedents in the Appendix is good and complete. In conclusion, Mr. Dixon deserves a word of praise for having always added dates to his reference to cases, a practice which we should be glad to see univers- ally followed." — Law Times on the 1st edit. The Coal Mines Regulation Act, 1887, and the Truck Acts, 1831 and 1887.— With Digest and Repiints of the Acts and practical Notes thereon. Official and Suggested Forms. Instructions to Candidates for Certificates under Mines Act, Summary of Decided Cases, &c. kc, with a general Index. By MASKELL WILLIAM PEACE. Po>/al Svo. 1888. Price 10s. 6d. DIVOECE AND PROBATE MANUAL : DESIGNED FOR LAW STUDENTS. BY W. JOHN DIXON, B.A., LL.M. (Cantab.), OF THE INNER TEMPLE, BAEKISTEE-AT-LAW, Author of Dixon'' s " Zaiv of Divorce," and "Zaiv of Probate" {2nd ed.). LONDON : EEEVES AND TUENEJl, 100, CIIANCEEY LANE AND CAEEY STEEET, I'nto ISookscIIcrg anti publisticrs. 1886 LONHOX • PEINTED BY C. F. EOWORTIf, GREAT NEW STREET, FETTER LANE, E.C. 5 ^ CO o CO %lfin Mh Maxl DEDICATED ALL STUDENTS OF THE LAW. 778796 PREFACE. The object of this little ^Manual is to place before the students of l)otli branches of the profession of the law, in a rudimentary, chro- nological, simple and inexpensive form, the Principles and Practice of English Divorce and Probate Law. The subjects are dealt with more fully in -the larger works ujion tliem by THE AUTHOR. TABLE OF CONTENTS. DIVORCE LAW. CHAP. I. Origin of the Divorce Division. Amalgamation of all Divorce, Probate and Admiralty Pro cedure in 1873 . . . . • Jurisdiction of the Divorce Division Bigamy The Locus delicti . The Marriage . English and Foreign Mar English Marriages Capable Parties . Civil Disabilities The Form of Marriage The Place of Marriage Consent of Parents Licences Foreign Marriages Lex loci contractus . The Law of the Domicile Law of Domicile overrides Law of Place of Marriage Domicile of Origin Choice Law . Domicile generally The Husband's Domicile The Wife's Domicile . CHAP. II. Dissolution of the Maeriage. The Husband's grounds The AVife's grounds Adultery . Incestuous Adultery Eigamy with Adultery Eape . Sodomy Adultery and Cruelty. Cruelty Kinds of Cruelty via TABLE OF CONTENTS — DIVORCE. CHAP. II. — continued. Constructive Cruelty Adultery coupled with Desertion Desertion .... Reasonable Excuse Desertion, meaning of the term . Desertion in Suits lor Judicial Separation Divorce .... Desertion, when excusable Deeds of Separation Dissolution, Defences Absolute Bars, why Discretionary Bars, why Denial of the Offences charged . Connivance .... Condonation .... Condonation by Husband and Wife . Distinction between Condonation and Conniv Collusion • . . . Intervention .... Grounds .... Costs .... Discretionary Bars Adultery . Effect of Delay . . " . " Cruelty ..... Cruelty, isolated and trifling . The result of Misconduct Wilful Neglect conducing to Adultery Conduct conducing to Adultery . Nullity of Marriage . Marriages void ab initio A previous Marriage Insanitj'" Consanguinity or Affinity . Public Policy Voidable Marriages . » . Impotence .... Evidence Voidable Marriages, when to be set aside Want of Age Nullity of Marriage, Defences . Judicial Separation . Desertion without reasonable Excuse Eestitution of Conjugal Rights Maintenance on Decree Object of the Court Petitioner Defences .... Jurisdiction .... Jactitation of Marriage TABLE OF CONTENTS — DIVORCE. IX CHAP. III. Alijioxy. The Amount .... Custody and Access Principles guiding the Court 'Co-respondents Damages .... •Settlements Protection Orders Suits for the Declaration of Legitimacy Acts on Petition CHA.P. IV. The Petition. Suing in Porma pauperis The verifying Affidavit The Citation The PraDcijae . Appearance and Non- Appearance Amendments . Proceedings by Default The Answer . Particulars Demurrers Purther Pleadings Joinder of Issue Mode of Trial Questions for the Jury Hearing and Trial Evidence Commissions Proof of Marriage Identity . The Decree New Trial and Ilearin Appeals The Decree Absolute Alimony Attachments Motions and Summonses Costs . Maintenance and Settlements TABLE OF CONTENTS — PROBATE. PROBATE LAW. CHAr. I. OPvIGI:^f OF THE Peobate Division. Business of the Probate Division Yoluntary Probate Business Eules in Non- Contentious Business . The Probate Eegistries Cases of Doubt CHAP. II. Who may make a Will, Persons lacking Testamentary Discretion The Animus testandi . A sound Mind Lucid Intervals Insanity, onus of Proof Lack of free will Undue Influence . Felons Wills, Execution . The Form Writing . The Language or Tongue Joint Wills are bad The Signature Acknowledgment . The Position of the Signature A Will need not be continuous Blanks in a Will Attestation Seamen's Wills Witnesses to Wills Eevocation Interlineations and Alterations Erasiu-es and Obliterations . Appearance of the Paper . Incorporation Or Eeyocation Eevival Wills, Contingent Duplicate Nuncupative . PAGE . 48 . 4» . 49 . 49 . 49 50 50 50 50 51 51 52 52 53 53 54 54 54 54 54 55 56 56 56 56 57 57 59 60 60 60 61 62 63 63 63- TABLE OF CONTEXTS — PROBATE. XI CHAP. III. Executors. Limited Execiitorsliips Legatees ..... Conditional Executorships Effect of Appointment as Executor The Chain of Eepresentation . An Executor cannot Assign his Office An Executor failing to Prove the Will Distinction between Probate and Administration Administration ^^■ith Will annexed . Eenunciation Eetractation . The Executor's rights Executors de son tort Administration Eorms of Grants The Principle of the Grant Commorientes Next of Kin Bankruptcy of Api:)licant Priori petenti Limited Grants Table of Succession under Litestacy Sub-division of an Intestate's Estate Distribution of Estate, when The President's Pdghts over Intestates' Estates Joint Administration Administration to Creditors . The Statute of Limitations PAGE m 66 66 66 67 67 67 67 68 68 68 68 69 70 0, 71 71 72 73 73 73 73 73 74 74 74 74 74 75 CHAP. IV. Testatoes axd Intestates Domiciled Abroad. Personalty free from Probate Duty . Wills of Realty ...... Unintentional Intestacies .... 79 79 CHAP. V. Probate, etc. Distinction between Probate or Administration in Solemn Eorm and Common Eorm . . . . . 80 Necessary Evidence in Common Eorm . . .81 Personalty in Scotland or Ireland . . . . 81 Citing the Queen's Proctor — Bastards . . .81 xu TABLE OF CONTENTS — PKOBATE. CHAP. V. — continued. Nature of Grants .... Tlio Administration. Bond County Court Jurisdiction — Contentious Business Hevocation of Grants in Common Form . Causes of Eevocation Rules — Eevocation Lost Grants . Motions Treasury Grants . Eights of Pelons . Lost Wills . Presumption of Death Advertisements General Grants Creditors Grants de novo Eevocation of Grants Temporary Grants Motions, Appeals Grants under Sjiecial Powers Contentious Motions . .Summonses Testamentary Papers . Production of Wills Motions . Affidavits in Probate Caveats The Heir-at-Law The Warning . Eules Appearance Non-appearance Suits in relation to Eealty Disputed WiUs . Attachments . Costs The Debtors' Act Citations . Administrators and Eeceivers pendente lite CHAP VI. Contentious Pkoceedings. Interpretation of Term I'robate Grants in Solemn Porm Probate Actions . •County Court Jurisdiction Probate Actions, where Tried TABLE OF CONTENTS — PROBATE. xni CHAP. YL— continued, PAGE Indorsement of Writ . . . . . !()(> Verif5-ing Affidavit . . ior> Service of Writ . . . . . lOG Appearance .... . . 106 Interveners . . . . . . 106 Parties ..... . . 106 Procedure . . . . . . 106 Proof in Solemn Fomi, -when requisite . . . 107 Executors may not Dispute the Will . 107 Citinj? tlie Heir-at-Law . . . 107 Eights of Creditors . . . . . 107 Pules as to Parties . . 107 Delivery of Claim . . . . . lo.s Eevocation .... . . 108. Scripts ..... . 108 Interest Causes .... . . 108 Pleas in Probate . 10f> Probate Action — Costs . . lot) Default .... . 109 Parties opposing Will, when liable for Costs of Probate . 10<> Discovery and Inspection . 110 Trial ..... . . 110 Evidence .... . 110 Witness as to Will . . 110 Executoi's . IKK Gifts to attesting Witnesses . . 110 Creditors as attesting Witnesses . Ill Ambiguities in Wills . . Ill Destroyed Wills . 112 New Trials .... . 112 Costs ..... . 112 Testator's capacity doubtful . . llo The Executor's Liabilities . 113 Next of Kin's Costs . . ii;} Notice as to Costs . 114 Creditor's Costs .... . . 114 Intervention .... . 114 The Heir-at-Law .... . 114 Costs generally . Uo THE INDEX. Divorce .... 117— 12,> Probate .... . 126—136 TABLE OF CASES. DIVORCE. A. PAGE A. r. B., 1 P. & D. 559 24 Adams v. A., 22 W. E. 192 ; 29 L. T.,N. S. G99 40 Alexander r. A., 2 P. & D. 167 19 Ambler v. A., 32 L. J., Mat. 6 35 B. Bacon t). B., 25 W. R. 560 18 Barnes v. B., 37 L. J., Mat. 4 22 Baring v. B., 33 L. J., Mat. 150 25 Bevan v. McMahon. 2 S. & T. 60 25 Billingay v. B., 35 L. J., Mat. 84 32 Birch V. B., 42 L. J., Mat. 24 14 Bird r. Bell, 1 Lee, 209 29 Blandford r. B., 8 P. & D. 19 18 Boardman v. B., 1 P. & D. 235 14 Bond f. B., 2 S. & T. 93 5 Boulting r. B., 3 S. & T. 335 17 Bowen v. B., 3 S. & T. 530 19 Boynton r. B., 30 L. J., Mat. 156 30 Briggs v. Morgan, 2 Hagg. C. C. 330 25 Brook V. B., 3 Sma. & G. 481 9, 23 Brownt'. B., 1 P. cfcD. 46; 33 L. J., Mat. 203 41 Browning v. Reane, 2 Phillim. 69 23, 24 Bunyard r. B.. 32 L. J., Mat. 176 ; 11 W. R. 990 38 Burroughs r. B., 2 S. & T. 574 27 C. C. V. C, 1 P. & D. 640 ; 38 L J., Mat. 37 40 Campbell r. Corley, 31 L. J., Mat. 60 28 Cargill r. C, 27 L. J., Mat. 70 25 Chamber.s v. C, 39 L. J., Mat. 56 ; 22 L. T., X. S. 727 ; 18W. R. 528 31 XVI TABLE OF CASES — DIVORCE. PAGE Chfcsnutt r. C, 1 E. & A. 205 14 Chetwynd v. C, 34 L. J., Mat. 131 ; 1 P. & D. 41 : 35 L. J., Mat. 21 30 Child V. C, 33 L. J., Mat. 156 37 Clark V. C, 31 L. J., Mat. 61 32 Cleavers. C, L.E,., 9 App. 631 43 Clements V. C, 33 L. J., Mat. 74 19 Cobbett V. C, 1 Curt. 678 14 Coleman t-. C, 1 P. & D. 81 20 Cook I'. C, 28 L. J., Mat. 37 37 Coni-adi v. C, 36 L. J., Mat. 68 19, 38 Conway v. Beazlev, 3 Hag-g. E. 639 4, 6, 9, 10 Cowing V. C, 33 L. J., Mat. 149 31 D. D'Aguilar r. D'A., 1 Hagg. E. E. Supp. 779 13, 14 D'Alton V. D'A., 47 L. J., Mat. 59 30 Deane «;. D., 1 S. & T. 90 36 Deck V. D., 29 L. J., Mat. 129 ; 2 S. & T. 90 3, 5 Dent V. D., 34 L. J., Mat. 118 18 Durham v. D., The Times, June, 1885 23 Dysartv. D., 2 N. C. 16; 3 N. C. 340 13, 33 E. E. r. T., 3 S. & T. 312 25 EUerton v. Gaskill, Banbury, 145 ; 1 Wms. 318 ; Gilbert's Equity, 156 23 Elsley y. E., 32 L. J., Mat. 145 36 F. Eirebrace v. E., 4 P. & D. 68 27 Forster v. F., 3 S. & T. 151 19, 31 Forth V. F., 36 L. J., Mat. 122 14 Fui-longer r. F., 5 N. C. 425 14 G. Gandy v. G., 7 P. & D 16 Gravest;. G., 33 L. J., Mat. 70 14 Green v. Dalton, 1 Add. 290 24 Griffiths r. G.. 33 L. J., Mat. 81 40 Guest i;. G., 2 Hagg. C. C. 321 25 TABLE OF CASES — DIVORCE. XVll H. PAGE H. i. C, 1 S. & T. GOo 25 Harris r. H., 2 P. & D. 77 42 Haswell V. H., 29 L. J., Mat. 21 lo Haydon r. Gould, 1 Salk. 119 24 Hayward v. H., 1 S. & T. 83 ; 28 L. J., Mat. 9 27, 29 Heaviside's Divorce, 12 CI. & F. 334 21 Herbert v. H., 2 Haa-jr. Con. 271 9 HiU V. H., 30 L. J.,^Mat. 197 41 Holden v. H., 1 Hagg. Con. 458 14 Hunt r. H., 26 W, R. Dig. 79 ; 47 L. J., Mat. 22 ; 39 L. T., N. S. 45 18 Keats r. K., 28 L. J., Mat. 57 17 Kirk V. Dolby, 6 M. & W. 639 36 L. Latham v. L., 30 L. J., Mat. 43 32 Leete v. L., 31 L. J., Mat. 121 39 Lempriere t-. L., 1 P. & D. 569 21 Le Sueur r. Le S., 45 L. J., Mat. 54 3 Lolley's case, Russell & Ryan, 237 4 Lovering v. L., 3 Hagg. E. C. 85 17, IS Ludlow V. L., 28 L. J., Mat. 5 36 Lutwyche r. L., 28 L. J., Mat. 56 35 M. Mattinson v. M., 35 L. J., Mat. 84; IP. & D. 221 ; 14 W. R. 978 ; 14 L. T., N. S. 636 31 March r. M., 1 P. & D. 439 oO Marsh v. M., 28 L. J., Mat. 13 ; 36 L. J., Mat. 65 .... 14, 32 Marshall r. M., 5 P. & D 25, 16, 28 Martin v. M., 29 L. J., Mat. 106 14 Masters r. M., 34 L. J., Mat. 7 19 Miles r. Chilton, 1 Rob. 698 ; 6 N. C. 636 ; 1 Rob. 700. .23, 44 JVIilford V. M., 1 P. & D. 715 ; 38 L. J., Mat. 63 ; 21 L. T., N. S. 155; 17 W. R. 1063 30 Mordauut v. MoncrieflPe, L. R., 2 Sc. & Div. Appeals, 374 34 Morgan r. M., 1 P. & D. 644 20 Muuro r. M., 7 CI. k Fin. 872 9 D. b XVlll TABLE OF OASES — DIVORCE. N. PAGE Neilcl V. N., 4 Hagg. Cons. 263 21 Newman v.'N., 2F. &T>. 58 21 NiboyetP. N., 4 P. & D. 18 3, 4, 10, 28 Noble t'. N., 1 P. & D. 81 20 North V. Seaton, 3 PbilKm. 147 24 0. Osborne v. 0., 33 L. J., Mat. 38 34 Ousey V. 0., 1 P. & D. 56 44 Palmer v. P., 29 L. J., Mat. 124 IS Peacock I'. P., 27 L. J., Mat. 71 17, 18 Pearman v. P., 29 L. J., Mat. 54 21 Pen-etz-. P., SSL. T., N. S. 910 37 Pirie v. Iron, 1 Dowl. 253 40 Pride v. Bath, 1 Salk. 120 24 Proctor t'. P., 34 L. J., Mat. 99 15 Q. Q. V. Mainwaring-, 26 L. J., M. C. 11 41 E. Radford v. R., 28 L. T., N. S. 279 28 Recs r. R., 3 Phillim. 389 29 R. r. Birmingham. 8 B. & C. 29, 35 7, 24 R. f. Brighton, 1 B. & S. 447 23 R. V. Harborne, 2 Ad. & El. 540 6 R. r. St. Giles, 11 Q. B. 173 23 Robinson r. R., 1 S. & T. 366 40 Rowley v. R., 29 L. J., Mat. 15 38 Rvder V. R., 2 S. & T. 227 ; 30 L. J., Mat. 44 ; 9 W. R. 440 ; 3 L. T., N. S. 678 30 TABLE OF CASES — DIVORCE. XIX S. PAGE Sarkiss f. S., June 27, 1884 13 Scott V. Jones, 2 N. C. 38 24 Scott V. S., 3 S. & T. 320 ; 33 L. J., Mat. 1 43 Seddon t). S., 31 L. J., Mat. 101 31 Sewell r. S., 28 L. J., Mat. 8 32 Sherwood v. Eay, 1 Moo. P. C. 385, 397 23, 24 Short v. S., 3 P. & D. 193 20 Sichel V. Lambert, 12 W. R. 312 41 Simonin v. Mallac, 2 S. & T. 77 ; 29 L. J., Mat. 97, lOJ. . 8, 9 Stone V. S., 31 L. J., Mat. 13G 40, 41 Sykes r. S., 2 P. & D. 163 32 T. Temple r. T., 31 L. J., Mat. 34 37 Thompson v. T., 27 L. J., Mat. 65 14 Turton v. T., 3 Hagg. 351 17 U. Udney v. U., 1 Scotch Appeals, 452 4, 10 Upton V. Att.-Gen., 32 L. J., Mat. 177 ; 6 Jur., N. S. 404 . . 33 W. Warrenden v. W., 2 CI. & Fin. 531 9 Webster v. W.. 31 L. J., Mat. 186 31 AVhitmore v. "W., 1 P. & D. 25 46 Williamson r. W., 46 L. T., N. S. 920 22 Wilson V. W., 2 P. & D. 441 20 Woodey i'. W., 31 L. T., N. S. 647 28 Yeatman t". Y., 1 P. & D. 489 15, 27 Yelverton v. Y., 1 S. & T. 574, 586 3, 28 b2 XX TABLE OF CASES — PROBATE. PROBATE. A. PAGE Abbott V. A., 2 Phillim. 578 71 Abbott i\ Massie, 3 Vesey, 148 112 Abud V. Eiches, 3 Ch. D. 529 100 Adamson, 3 P. & D. 253 66, 67 Anderson v. A., 13 Eq. 385 57" B. Baigent r. B., 1 P. & D. 421 94 Baker r. Denning, 8 A. & E. 97 54 Barber, 1 P. & D. 267 87, 102 Baylis v. Att.-Gen., 2 Atk. 239 Ill Belbin r. Skeates, 27 L. J., Prob. 56 Ill Bell V. Tinniswood, 2 Phillim. 22 73 Bellew i'. B., 4 S. & T. 58 102 Black v. Jobling, 1 P. & D. 690 62 Blewitt, 5P. &D. 116 59 Bloxani?'. Eavre, 52 L. J., Prob. 43 89 Booth, 3 P. & D. 177 79 Borlase i'. B., 4 N. C. 109 ; 4 N. C. 106 51, 59 Boughton V. Knight, 3 P. & D. 77 113 Boxley r. Stubbington, 2 Lee, 542 71 Brooks V. Barrett, 24 Mass. 98 51 Browning v. Sabine, 5 Ch. D. 511 . . „ 100 Brownrigg v. Pike, 51 L. J., Prob. 30 79 Burls V. B., 36 L. J., Prob. 125 ; 1 P. & D. 472 88 Butts, 2 E. & A. (Spiiiks), 58 87 C. Carneby v. Gibbons, 1 Rob. 705 ; N. C. 679 55, 56 Carr, 1 S. & T. Ill 85 Cartwright v. C, 1 Phillim. 99, 100 51 Chamberlain, 36 L. J., Prob. 52 107 Chanter, 1 Rob. 274 71 Charlton v. Hindmarsh, 1 S. & T. 519 103 Clark, 1 S. & T. 22 54 Clarkington, 2 S. & T. 382 71 Clayton v. Lord Nugent, 13 M. & W. 207 112 Cole V. Rea, 2 PhilUm. 29 75 Corder, 1 Rob. 671 56 Cordeux v. Trasler, 34 L. J., Prob. 127 73 Cunningham r. Seymour, 2 Phillim. 250 99- TABLE OF CASES — PROBATE. XXI D. PAGE Dabbs V. Chisman, 1 Phillim. 155, 160 107, 1 14 Dampicr v. Colson, 2 Philliin. 54 74 Darke, 1 S. & T. o7G 65 Day, 7 N. C. 553 6G Dean r. Russell, 3 Phillim. 334 113 Dunn r. D., 1 S. & T. 521 105 Dui-rance, 2 P. & D. 406 62 Dyke r. Walford, 5 Moo. P. C. 434 ; 6 N. C. 309 87 D}-mond v. Croft, 3 Ch. D. 512 108 E. Edwards, 6 X. C. 306 61 Edwards v. Harben, 2 T. R. 597 69 Elmer. Da Costa, 1 Phillim. 175 ,o„, 75, 107 Enohin v. Wylie, 10 H. L. 19 77 Evans r. BurreU, 28 L. J., Prob. 82 77,78 Evans t-. E., 1 Robert. 173 HI Evans t'. Tyler, 2 Rob. 132 ; 3 N. C. 296 65 F. Fairweather, 2 S. & T. 589 88 Farlowr. F., 27 L. J., Prob. 103 110 Farmer r. Brock, Deane & Swabey, 189 HI Fenwick, 1 P. & D. 319 62 Foster v. ¥., 33 L. J., Prob. 113 Ill Eraser, 2 P. & D. 186 66 Fry, 1 Haa-g. 80 66 Fyson v. Westrop, 1 S. & T. 279 114 G. Glover, N. C. 553 54 Grant f. G., 39 L. J., Prob. 17 HI Grant v. LesUe, 3 Phillim. 119 66 Graves, 1 Hagg. 313 103 Griffiths r. G., 2 P. & D. 303 57 Groom v. Thomas, 2 Hagg. 434 51 H. Habergham r. Vincent, 2 Vesev, jim. 220 53, 61 Hagger, 3 S. & T. 65 ." 71 Hale r. Tokelove, 2 Roberts. 318 63 Hall y. Wan-en, 9 Vesey, 610 51 Hayward v. Dale, 2 Lee, 333 68 Hillam r. Walker, 1 Hagg. 74 115 XXU TABLE OF CASES — PROBATE. PAGE Hobson r. Blackburn, 1 Add. 277 54 How, 27 L. J., Prob. 37 88 Hunt V. Hort, 3 Bro. C. C. 311 Ill Hunt V. H., 1 P. & D. 209 ; 35 L. J., Prob. 135 56 J. Jones V. Williams, 3i L. J., Prob. 102 106 LeaUey v. Veryard, 35 L. J., Prob. 127 ; 1 P. & D. 195. . 112 Leese, 31 L. J., Prob. 169 ; 2 S. & T. 442 66 Lemage v. Goodban, 1 P. & D. 57 61 Loftus, 3 S. & T. 311 ; 33 L. J., Prob. 59 107 Long V. Symes, 3 Hagg. 774 69 Lovegrove, 2 S. & T. 453 54 M. M'Donnelli'. Prendergast, 3 Hagg. 31 68 Main, 1 S. & T. 11 ; 27 L. J., Prob. 4 88 Martineau v. Rede, 2 Add. 455 74 Masterman v. Maberley, 2 Hagg. 247 53 Matthews v. Warner, 4 Ves. jun. 186 53 Medcalf v. James, 25 W. R. 63, P. D 108 Menzies v. Pulbrook, 2 Curt. 845 74, 107 Meryweather v. Turner, 3 N. C. 59 107 Miller V. James, 3 P. & D. 4 78 Milligan, 2 Roberts. 100 53 Moore, 3 N. C. 681 84 Morgan, 1 P. & D. 323 66 Morton v. Miller, 3 Ch. D. 516 108 Mountain v. Bennett, 1 Cox, Eq. C. 354 52 Mudway v. Croft, 2 N. C. 442 51 Munday v. Slaughter, 2 Curt. 76 110 Mundy, 2 S. & T. 149 ; 30 L. J., Prob. 85 54 Napier, 1 Phillim. 83 84 Newton V. N., 5 L. T., N. S. 218 63 Nickalls, 34 L. J., Prob. 103 1 1 1 North, 6 Jur. 564 59 O. Oliphant, 1 S. & T. 525 66 Onions v. Tyrer, 1 P. Williams, 343 63 TABLE OF CASES — PROBATE. XXlll P. PAGE Pallison r. Ord, Bunb. Exch. 166 71 Panchard v. Weger, 1 Phillim. 212 69 Parker, 28 L. J., Prob. 91 53 Parsons v. Lanoe, 1 Ves. sen. 198 63 Phillips, 2 Adams, 35 89 Prinsep v. Lombre, 10 Moo. C. 232 51 E. Rawlinson v. Burnett, 3 S. & T. 479 75 Redding, 2 Roberts. 339 54 Regan, 1 Curt. E. 908 55 Repington v Holland, 2 Lee, 106, 254 53, 72 Roberts v. Phillips, 4 E. & B. 453 56 Rogers v. Goodenough, 2 S. & T 342 ; 31 L. J., Prob. 49 63 Rose, 4 N. C. 101 59 Ruddy, 2 P. & D. 330 ; 41 L. J., Prob. 63 89 Rj'mes V. Clarkson, 1 Phillim. 35 54 S. Satterthwaite v. Powell, 1 Ciu-t. 705 73 Selw}ii, 3 Hagg. 784 72 Smith, 3 Curt. 31 67 Smith r. Tibbitts, 36 L. J., Prob. 99 50 Southmead, 3 Curt. 29 71 Stahlschmidt v. Lett, 1 Sma. & Giff. 415 75 Stracey, Deane & Swabey, 7 54 Stretch v. Pym, 1 Lee, 30 72 Sugden v. Lord St. Leonards, 1 P. & D. 154 ; 45 L. J., Prob. 49 59, 88 Summerell v. Clements, 3 S. & T. 35 114 Sutton V. Drax, 2 Phillim. 323 113 Sutton V. Smith, 1 Lee, 209 71 Taylor v. Diplock, 2 Phillim. 267 72 Theakston v. Marson, 4 Hagg. 314 Ill Thomas r. Evans, 2 East, 488 62 Thomas !'. Nurse, 39 L. J., Prob. 80 84 Thynue r. Stanhope, 1 Add. 53 59 Tomlinson, 50 L. J., Prob. 74 79, 85 Tree]v, 3 P. & D. 242 59 Trevelyan v. T.. 1 Phillim. 149, 153 58, 112 Tucker, 3 S. & T. 586 76 Turner, 2 P. & D. 403 62 XXIV TABLE OF CASES — PROBATE. V. PAGE Vallance v. V., 1 Hagg. 694 112 Von Buseck, G P. D. 211 ; 51 L. J., Prob. 9 ; 52 L. J., Prob. 42 77 W. Wheeler, 31 L. J., Prob. 40 72 William v. Goiide, 1 Hagg. E. R. 581 52 WiUs V. Rich, 2 Atk. 285 68 Wilson V. Beddard, 12 Sim. 28 54 Winsor v. Pratt, 2 Brod. & Bing. 655 61 T. Young V. Ferrie, 4 S. & T. 210 97 ABBEEVIATIONS. O. B. — Contentious Business. C. P. — Common Porm. ■C. P. A.— Court of Probate Act. Curt.— Curteis' E. R. D. & S. — Deane & Swabey. Hagg. — Haggard's E. R. In the goods of Smith, e.g. is cited Smith; and Smith v. Smith as Smith v. S. Jur. — Jurist. Xi. J. — Law Journal. Law Reports, Probate and Divorce, are cited P. & D. L. T., N. S.— Law Times. Non-C. B. — Non- Contentious Business. N. C. — Notes of Cases. P. R. and D. R. — Principal and District Registries. Rob. or Robert. — Robertson's E. R. R. S. C- — Rules of the Supreme Court. AV. N.— Weekly Notes. W. R.— Weekly Reporter. DIVORCE LAW. CHAPTER I. ORIGIN OF THE DIVORCE DIVISION. Divorce Jurisdiction since 1873. — All jurisdiction in divorce and matrimonial causes is now vested in the Probate, Divorce and Admii'alty Division of the High Court of Justice. Divorce (Turisdicf ion from 18o7 to 1873. — Prior to the creation of the High Coiu't of Justice in 1873, divorce jurisdiction was vested in the Divorce Court, a Court established in the year 1857, in accordance wath the provisions of the Matrimonial Causes Act of that year. Divorce Jurisdiction Jjcfore 1857. — Till 1857 the Eo clesiastical Courts exercised jurisdiction over all matri- monial suits between husband and wife, cxcejot those for dissolution of the marriage. Bills for Divorce. — In suits for dissolution of the marriage the remedy was by a bill in parliament, a proceeding costly even to the affluent, and to the poor impossible. Establishment of the Divorce Court. — The legislatm'e, in the year 1857, established a Court competent to deal with all matrimonial proceedings at a uniform and moderate expense, thus relieving the Ecclesiastical Courts of this branch of their jurisdiction, and abo- b D. B 4 DIVORCE LAW. lisliing the cumbrous and costly bill for divorce in parliament. Amalgamation of all Divorce, Probate and Aclmiralti/ Procedure in 1873. — The Divorce Court of 1857 was, in 1873, amalgamated with other Courts in the Probate, Divorce and Admiralty Division of the High Coui't of Justice. Matters Matrimonial. — The matters over which the Divorce Division has jurisdiction are, suits for — (i) Dissolution of marriage. (M. C. A. 1857, ss. 27 to 31 inclusive; see j)ost, p. 11.) (ii) Nullity of marriage. {Ibid., s. 6; see post, ip. 22.) (iii) Judicial separation. {Ibid., s. 7; see post, -p. 25.) (iv) Eestitution of conjugal rights. {Ibid., s. 6, and M. C. A. 1881 ; see^^osf, p. 26.) (v) Jactitation of marriage. (See^;o.s/, p. 28.) And also the following matters incidental to and arising out of the above proceedings : (vi) The allotment of alimony and maintenance, ac- cording to the circumstances, in the above suits. {See post, p. 29 ; M. C. A. 1857, ss. 17, 24, 32 ; M. C. A. 1866, ss. 1, 2 ; and M. C. A. 1881, ss. 2, 3, 4, 6.) (vii) Custody of children and access to them. (M. C. A. ] 857, s. 35 ; M. C. A 1859, s. 4 ; see post, p. 29.) (viii) The application of damages recovered from an adulterer. (M. C. A. 1857, s. 33; see post,. p. 31.) (ix) The settlement of property of the parties in cer- tain cases. (M. C. A. 1857, s. 45 ; and M. 0. A. 1859, s. 5 ; see post, p. 32.) (x) The protection of the wife's property in certain cases. (M. C. A. 1857, ss. 21, 25 ; M. C. A. 1858, ss. 6, 7 ; see post, p. 32.) DIVORCE JURISDICTION. 6 (xi) The reversal of the decree of judicial separation (M. 0. A. 1857, s. 23), and of the decree nisi for a divorce (M. C. A. 1860, s, 7), and of a similar decree of nullity of marriage (M. C. A. 1873, s. 1). Jurisdiction of tJie Divorce Division. The Divorce Acts apply in the matter of jurisdiction to England. {Le Sueur v. Le S., 45 L. J., Mat. 74.) England, in divorce suits, signifies England to Ber- ■wick-on-Tweed, and "Wales. {Yelverton v. Y., 1 S. & T. 586.) The first important questions necessarily arising in matrimonial suits relate to — (i) The marriage ; (ii) The place of marriage {locus contractus) ; (iii) The husband's domicile. Materiality of Allegiance questioned. — Allegiance has heen stated to be a material question in matrimonial suits, but its importance is not manifest upon consulting recent authorities. In Deck V. D. (29 L. J., Mat. 129 ; 2 S. & T. 90, 1860), allegiance was treated as material. That case was decided by the Divorce Court soon after its constitu- tion. Udncjj V. U., which is in direct conflict with it, and distinctly explains the effect of allegiance and domicile, was an appeal case decided by the House of Lords nearly ten years later. Still later, in 1878, Lord Jus- tice Brett, reviewing the decision in Deck v. Deck, dissented from it {Niboyet v. iV., 4 P. D. 18) : and sub- sequent decisions do not support it. Allegiance explained. — Allegiance regulates a person's political status, and is the public duty which he owes to the State of which he is a subject. A breach of that b2 DIVORCE LAW. duty renders him amenable to the criminal law only. {TJdneij v. Z7., 1 Scotch Appeals, 452.) Illustration. — An English subject married in Eng- land. His wife obtained a divorce in Scotland. He married again, treating the Scotch divorce as valid. It was held invalid, because the Scotch Court had no jurisdiction. His English marriage not having been dissolved he had committed a breach of public duty, or of allegiance, in contracting a bigamous marriage, for which he became liable to criminal proceedings for the crime of bigamy. [Lollofs case, Eussell & Ryan, 237.) Bigamy. Bigamy is of two kinds, criminal and civil. Cnminal Bigamy. — Criminal bigamy renders the offender liable to a prosecution. But there are defences to the charge. (See Archbold, "Bigamy.") With civil bigamy the Divorce Division has alone to do. Civil Bigamy. — Civil bigamy admits of no answer, and entitles the parties injured by it to certain remedies. If it be coupled with adultery, the two offences en- title the first wife to a dissolution, (^qq post, p. 11.) Bigamy also entitles the second wife to a decree of nullity of marriage. [Conway v. Beadcy, 3 Hag. E. C39.) The Locus delicti. — The locus delicti, or the place where the matrimonial offence occiuTcd, has also been treated as material. But in one case only has it been even dwelt upon {Nihoyet v. N., 4 P. D. 1). The authorities against that decision, upon this point, are almost without number. In addition, it is stated by a weighty authority upon. DnORCE JUKISDICTION. D "Marriage and Divorce" (Bisliop, § 740), that "The pLace where the offence was committed, whether in the country in which the suit is brought, or a foreign country, is quite immateriah" Illustrations. — An English husband obtained a divorce on the ground of his wife's adultery. The adultery took place in Scotland. {Wilson v. IF., 2 P. & D. 435.) A wife obtained a divorce in England on the ground of bigamy and adultery. The bigamy and adultery took place in America. {Deck v. D., 2 S. & T. 90 ; 29 L. J., Mat. 129.) A wife obtained a divorce on the ground of adultery and cruelty. The adultery took place in Ireland. {Bond V. B., 2 S. & T. 93.) In each case the locus delicti was beyond the jurisdic- tion of the Court, and being so it matters not how much or little beyond, whether at Paris or the Antipodes. These cases can be added to indefinitely upon this ques- tion. The Marriage. — The marriage is the first and most important question in matrimonial proceedings, because every subsequent matrimonial matter depends upon its validity. Marriage is "the conjunction of man and woman vowing to live inseparably together till death." (Justi- nian, bk. i. tit. 9, s. 1.) In English law it is a civil contract between man and woman to live inseparably and exchisivehj together till death. English and Foreign Marriages. Marriages must take place in England or abroad. Marriages in England are here called English mar- riages. 6 DIVORCE LAW. Marriages abroad are liere called foreign marriages. English Marriages. — English marriages must be be- tween caimhle parties, and the form, place, and time, of the ceremony must be according to English law. Capable Parties. Capable parties are those who labour under no civil disabilities. (1 Blackstone, 434.) Civil Disabilities. Civil disabilities are four in number — A previous marriage; Insanity ; Eelationship within the prohibited degrees of con- sanguinity or affinity; Minority. A previous Marriage. — "Where a party to a marriage is proved to have been a party to a previous existing marriage, such marriage is a civil disability, which pre- cludes him from marrying again during its continu- ance. {R. V. Sarborne, 2 Ad. & El. 540 ; Comcay v. Beazley, 3 Hagg. E. 639.) Insanity. — Insanity is an absence of mind, and creates an inability to consent to the marriage contract. (See also Stephen's, Comm. 7th ed. vol. ii. 241.) Relationship u-ithin the prohibited Degrees of Consan- guinity or Affinity. — Parties who are related within the prohibited degrees of consanguinity or affinity labour under the civil disabihty from contracting marriage created by such relationship. (Stephen's Commen- taries, 7th ed. vol. ii. 242. See 2)ost, Nullity of Marriage ; Void Marriages.) Minority. — Minors marrying without the consent of MARRIAGES. / their parents or guardians, or, if wards of court, without the consent of the Lord Chancellor, contract a marriage voidahle at their option on majority, (4 Geo. 4, c. 76, ss. 16, 17; Coke, Litt. 79a, 79b; B.y. Birmingham^ 8 B. & C. 35.) The Form of Marriage. The form of marriage must be either — By banns ; By common licence ; By special licence ; By registrar's certificate : With licence ; Without licence. (4 Geo. 4, c. 76 ; and 6 & 7 Will. 4, c. 85.) Marriage hij Banns. — The marriage ceremony must be performed by a clergyman, in a church, between 8 and 12 a.m., and attested by two other witnesses, and after the publication of banns on tkree successive Sundays previously. (4 Geo. 4, c. 76 ; and 6 & 7 Will. 4, c. 85, s. 2.) Marriage by Licence. — Marriage by licence is of two kinds — By common Hcence ; By special licence. Marriage by Common Licence. — A common licence is that of the ordinary of the place of marriage, or his sur- rogate. (10 & 11 Yict. c. 98, ss. 5, 10.) Marriage hij Special Licence. — A special licence is that of the Archbishop of Canterbury. (20 Hen. 8, c. 21 ; 4 Geo. 4, c. 76, ss. 10, 20 ; 6 & 7 Will. 4, c. 85, s. 1.) The Place of Marriage. — The place of marriage, if the O DIVORCE LAW. marriage be by licence, may be any registered place of worship, registered also for marriages (G & 7 Will. 4, c. 85, s. 11 ; 7 Will. 4 & 1 Vict. c. 22, s. 35) ; and on change of tlie place of worship, see 6 & 7 Will. 4, c. 85,. s. 19. Bf/ Iicgisfrar^s Certificate. — Marriage by registrar's certificate or civil ceremony, with or without a licence, must be according to the requirements of G & 7 Will. 4, e. 85 ; 1 Vict. c. 22 ; 3 & 4 Vict. c. 72 ; 19 & 20 Vict. e. 119 ; and 23 Vict. c. 18. The district registrar of births and deaths may register marriages. (G & 7 Will. 4, c. 85, s. 3.) Consent of Parents. — Consent must be obtained to the marriage of minors by parents or persons in loco parentis. (19 & 20 Vict. c. 119, s. 2.) The marriage must be between 8 and 12 a.m. with open doors, according to the form and ceremony chosen by the parties, and before the district registrar and two or more credible witnesses, a certain declaration speci- fied in the Act applying thereto being made. Licences. — Questions relating to licences are decided by applying to them the Acts of Parliament under which the licences are issued, or in accordance with the regulations of which the issue should be. Theii' legality is not tested in the Divorce Division. (M. C. A. 1857,. ss. 2, 6.) Foreign Marriages — Proof. — Foreign marriages must be proved to have been performed according to the law of the country in which they were celebrated. {Simoniii V. 3rallac, 2 S. & T. 77; 29 L. J., Mat. 105.) Illustration. — Domiciled English subjects, within the degrees of relationship prohibited by English law, but MARRIAGES, 9 not by Danish law, married in Denmark. But on suit in England, the marriage was held null and void. {Brook V. B., 3 Sma. & G. 481.) Foreign marriages contrary to the laws of the country of the domicile of the parties are held invalid. {See post, Nullity of Marriage; Void Marriages.) Lex loci contractus. — The place of the marriage, if it be abroad, is material, because the validity of the ceremony of marriage depends upon its being in accord- ance with the law of the place where it was performed^ namely, with the kx loci. {Simon in v. Mallac, 29 L. J., Mat. 97; ITerbert v. //., 2 Hag. 0. 271.) Illustration. — A marriage in Denmark between English parties who are within the degrees of relation- ship prohibited by English law, but permitted in Den- mark, is a marriage valid, kr/e loci contractus, but in- valid, lege domicilii. {Brook v. B., 3 Sma. & Gr. 481.) In such a case the lex domicilii prevails. Tlte Law of the Domicile. — The law of the place of domicile regulates the civil consequences of the mar- riage. {Brook V. B., 3 Sma. & Gr. 481 ; Conicay v. Beaz- ley, 3 Hagg. 639.) Law of Domicile overrides Lair of Place of Marriage. — When the law of domicile is in conflict with the law of the place of contract, the former prevails {Conn-ay v. Ikctzley, 3 Hagg. G39 ; Brook y. D., 3 Sma. & Gc. 481) ; because the former regulates the civil consequences of the marriage, the latter the validity of the ceremony only. {Munro v. M., 7 CI. & Fin. 872 ; irarrendcr v. jr., 2 Cl. & Fin. 531.) Domicile is of three kinds : domicile of origin ; do- micile of law ; domicile of choice. (See Phillimore and Dicey on Domicile.) 10 DIVORCE LAW. Domicile of Origin. — Domicile of origin or birth is the domicile of every male adult until it is changed, (Philli- more and Dicey on Domicile, JJclney v. Z7., 1 Scotch Appeals, 452.) Domicile of CJwice. — The domicile of choice is the domicile which a person acquires by residence, with an intention to constitute it his permanent home. {Ibid.) Domicile of Law. — Domicile of law is the domicile of the wife on her marriage, and also that of the children of the family under twenty-one years of age. (Ibid.) Domicile. — Domicile regulates a person's civil statics and rights only as a citizen of the state in which he is domiciled. {Ibid.) Illustration. — A domiciled English subject married a wife in England. She obtained a divorce from him in Scotland. He then married again. His first marriage could not, by the law of his domicile, be dissolved else- where ; he could not, therefore, legally contract a second marriage. His second wife obtained a decree of nullity of marriage on the ground of bigamy. {Comcay v. Bec(z- ley, 3 Hagg. E. E. 639.) The Husbancrs Domicile. — The husband's domicile is a question of fact. The eifect of that fact when found is a question of law. The Wife's Domicile. — The wife's domicile follows that of her husband (Phillimore and Dicey on Domi- cile) ; for modification of this rule see Nihoyet v. N., 4 P. D. 1. ( 11 ) CHAPTEE II. DISSOLUTION OF THE MARRIAGE, The grounds upon wliich husband and wife can severally obtain a divorce differ materially. (M. 0. A. 1857, ss. 27—31 inclusive.) The EushancVs grounds. — The husband must prove the adultery of his wife to obtain a divorce ; no other ground wiU suffice. (M. C. A. 1857, s. 27.) T/ie Wife's grounds. — The w'ife cannot proceed for a divorce on her husband's adultery alone ; she must establish either of the following grounds : — (i) Incestuous adultery ; (ii) Bigamy with adultery; (iii) Bape ; (iv) Sodomy or bestiality ; (v) Adultery and cruelty ; (vi) Adultery and desertion without reasonable excuse for two years or upwards. (M. C. A. 1857, s. 27.) Adultery. — Adultery is the act of sexual intercourse between two persons, one, or each, of whom is married to another ; or, sufficiently to satisfy the requirements of the Divorce Acts, it is the act of wrongful sexual inter- course by either husband or wife. IncesUioiis Adultery. — Incestuous adultery is adultery by the husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage, by 12 DIVORCE LAW. reason of her being within the prohibited degrees of consanguinity or affinity. (M. C. A. 1857, s. 27.) These degrees are set out in the " Table of Kindred and Affinity," wherein whosoever are related are for- bidden in Scripture and our laws to marry together. The table appears in the Book of Common Prayer of the Church of England. Bigamy with Adultery. — Bigamy, as defined by the Act, is " the marriage of any person being married to any other person during the life of the former husband or wife ; whether the second man-iage shall have taken place within the dominions of her Majesty or elsewhere." (Sect. 27.) Bigamy with adultery is bigamy with the person with whom the adultery is committed. . Rcqye. — Eape is the act of having carnal knowledge of a woman violently and against her will. (See Arch- bold's Criminal Pleading.) — Proof. — To prove the allegation of rape such evidence is requisite as would substantiate the criminal charge. Sodomy. — Sodomy is the unnatural carnal knowledge of any person. (See Archbold's Criminal Pleading, " Sodomy.") Bestiality is the imnatural carnal knowledge of any animal. {Ibid., " Bestiality.") — Proof. — To prove the allegation of sodomy or bestiality such evidence is requisite as would substantiate the criminal charge. Adultery and Cruelty. — Adultery and cruelty are " adultery coupled with such cruelty as without adultery would have entitled the party to a divorce a mensd et DISSOLUTION OF THE MARRIAGE. 13 tJtoro ; " or, since 1857, to a judicial separation. (M. C. A. 1857, s. 7.) Adultery has been already dealt with, ante, p. 11. Cruelty. — The cruelty set up must be such as to en- danger the life, limb, or health of the complainant. It m.ust be proved to have actually taken place, or the party setting it up must have an honest apprehension that it will take place if not prevented, an apprehension founded on previous threats or unsuccessful attempts to inflict it under cii'cumstances showing a danger of its recurrence if cohabitation continued. Illustration. — A man may strike or shoot at his wife without injuring her. The nest attempt might kill her. She is entitled if in fear of a repetition of such violence to protection from it. {D'Agidlar v. D'A., 1 Hagg. E. E. Supp. 779.) Cruelty is of various hinds, and not always Personal Violence. — Cruelty is of various kinds, and does not necessarily include personal violence. That which would be cruelty to a person in a high rank of life might not be so to a person in a humbler one. " A wife brought up as a gentlewoman would suffer in her health and constitution, nay, even her life might be endangered, by a mode of living which would be comfortable to a female in a different grade of life." {Dysart v. D., 3 N. C. 340.) The temperament of the parties too must be con- sidered. Coldness and indifference, constant and stu- died indignities to a lady of acute sensibility, may become cruelty, because of the injury to her health. {Sarldss V. S., June 27, 1884.) There are other forms of cruelty somewhat different from the above. 14 DIVORCE LAW. Illustrations. — Compelling the wife to lead tlie life of a prostitute is cruelty. Communicating a venereal disease to her knowingly is cruelty. {Boardman v. B., 1 P. & D. 235 (1866) ; Brown v. B., 1 P. & D. 46 ; Cohhett y. C, 1 Curt. 678.) Communicating a cutaneous disease is not cruelty. {ChesnuU v. C, 1 E. & A. 205 (1854).) Spitting on the wife is cruelty. {D'Aguilar v. D'A.y 1 Hagg. E. E. Supp. 776 (1794).) Delirium does not alter the nature of the act. {Marsh V. M., 28 L. J., Mat. 13 (1858).) Peril is the ground for the remedy, motives do not affect the question. {Holden v. H., 1 Hagg. C. 458 (1810) ; Martin v. il/"., 29 L. J., Mat. 106.) A wife may be violent to her husband. In defend- ing himself he may be tempted to retaliate with violence. In such a case the Court has found the wife guilty of cruelty. {Forth v. F., 36 L. J., Mat. 122 ; Furlonger v. F, 5 N. C. 425.) Constructive Cruelty. — Cruelty to a child of the mar- riage by one of the parents, which so wounds the feel- ings of the other as to be dangerous to health, will warrant the Court's intervention. {Birch v. B., 42 L. J., Mat. 24.) Adultery coupled with Desertion, 8^c. Adultery coupled with desertion without reasonable excuse for two years or upwards. Desertion. — Desertion is the wilful absence from cohabitation of one of the contracting parties without the consent of the other. {Thompson v. T., 27 L. J., Mat. 65 ; Graves v. G., 33 L. J., Mat. 70.) Reasonable Excuse. — Reasonable excuse arises on the commission, by the party subsequently deserted, of a DISSOLUTION OF THE MARRIAGE. 15 matrimonial offence, sucli as cruelty or adultery. {Teat- man V. Y., 1 P. & D. 489 (1868).) Desertion, meaning of the Term. — Desertion must be ■without cause, and for two years and upwards. (M. 0. A. 1857, s. 16.) "Whether coupled with the words " without cause," or " without reasonable excuse," it always means the same thing. {Yeatman v. Y., 1 P. & D. 489.) Desertion in Suits for Judicial SejMration. — Desertion when charged in a suit for judicial separation must be of two years' duration. — in Suits for Divorce. — Desertion may be pleaded in answer to a suit for dissolution immediately after it took place. It might be the cause of the adultery com- plained of. Illustration. — A gentleman married a prostitute. He had no means to support her. They separated by con- sent. She committed adultery. Her husband sued for a divorce. She pleaded desertion without effect. The Court granted him a decree. (Proctor v. P. et al., 34 L. J., Mat. 99.) Desertion,ivhen excusable. — Conclusive evidence of gross improprieties by the wife constitute a reasonable excuse for separating from her. [Haswell v. H., 29 L. J., Mat. 21.) Deeds of Separation. Deeds of separation, though not contemplated by the Matrimonial Causes Acts, nor the Ecclesiastical Courts, are now recognized in the Divorce Division, and are frequently resorted to, both to obviate litigation, and, when it has arisen, to close it. Hence, some knowledge of their effect in matrimonial suits is desirable. 16 DIVORCE LAW. A liusband or wife who is a party to a deed of sepa- ration is bound Iby its terms. {Marshall \. M., 5 P. D. ; Ganch/ V. G., 7 P. D. ; Besant v. Wood, 12 Ch. D.) But any matrimonial offence subsequently committed, and not contemplated on the execution of the deed, entitles the party wronged to the legal remedy applicable to the case. Bissohdion — Defences. — The defences to a suit for dissolution consist of — (i) Denial of the offences charged ; (ii) Connivance ; (iii) Condonation ; (iv) Collusion. (M. C. A. 1857, ss. 30, 31.) Absolute Bars, lelnj. — If either of these defences is established the petition fails, and hence they are called absolute bars. There are also certain other defences, as follows : — (v) The petitioner's adultery ; (vi) Unreasonable delay in presenting or prosecuting the petition ; (vii) Cruelty of the other party to the marriage ; (viii) Desertion, or wilful separation, from the other party before the adultery complained of, and without reasonable excuse ; (ix) Such wilful neglect, or misconduct, as has con- duced to the adultery. Biseretionary Bars, irhij. — These defences, if estab- lished, give the Court a discretion in the exercise of its power. In other words, the Court is not bound to make a decree in the petitioner's favour if either of these defences is proved. Where the offence is of a serious character, the Court in the exercise of its discretion DISSOIXTION OF THE MARRIAGE. 17 refuses a decree. Hence tliese latter are called discre- tionary bars. Denial of the Offences charged. This class of answer to the petition needs no comment. Its sufficiency depends solely on the facts proved. Connivance. — Connivance is a conspiracy between the parties to the suit that the act to be charged by the petitioner shall be committed by the respondent. It is an agreement between the parties for the respondent, to commit a matrimonial offence that the petitioner may obtain relief upon it. [BouUing v. i?., 3 S. & T. 335.) Volenti noil fit Injuria. — The phrase volenti non fit in/aria explains the position of the conniving i^arty. No wrong is done where he acquiesces in the conduct of the other party. (Ibid.) Connivance at one Adaltcry is Connivance at all. — Connivance at adultery with one person is a defence to a charge of adultery with another. [Levering v. L., 3 Hagg. E. C. 85.) Condonation. Condonation is a blotting out of the offence charged, so as to restore the oifending party to the position he occupied before the offence was committed. {Keats v. K. ^' J/., 28 L. J., Mat. 57.) Complete Knoictedge and Forgiveness are necessary. — In order to found it there must be a complete knowledge of the matrimonial offence, and a forgiveness subsequent to it. {Tarton v. T., 3 Hngg. 351.) A forgiveness with a full knowledge of all the circumstances. {Peacock V. P., 27 L. J., Mat. 71.) 1). c 18 DIVORCE LAW. Condonation hy Husband and Wife. — Condonation by the husband and Avife are different in their effects. A wife may condone her husband's conduct in the hope of his amendment. But his condonation of his wife's adultery might show insensibility to his own honour. {Peacock v. P., 1 S. & T. 184.) One matrimonial offence revives another condoned. Adultery revives cruelty ; cruelty revives adultery {Palmer v. P., 29 L. J., Mat. 124; Dent v. P., 34 L. J., Mat. 118) ; and adultery revives desertion. {Blandford v. P., 8 P. D. 19.) Distinction between Condonation and Connimnce. — Con- donation is quite distinct from Connivance. Condonation is forgiveness of a past offence with a due regard to the future. Connivance is an improper consent to the commission of a matrimonial offence. {Levering v. L., 3 Hagg. 86.) CoUasion. If the Court finds that the petition is presented in collusion with either of the respondents it shall dismiss it. (M. C. A. 1857, s. 30.) Collusion is an agreement between husband and wife, in a matrimonial suit, for the suppression of material facts from the knowledge of the Court. {Hunt v. II. 8f W., 26 W. E. Dig. 79 ; 47 L. J., Mat. 22 ; 39 L. T., N. S. 45 ; Bacon v. P. and another, 25 W. R. 560.) The material facts consist of an agreement between the parties, fraudulently suppressed from the knowledge of the Court, for one to commit, or appear to commit, a matrimonial offence, that the other may obtain a remedy as for a wrong. Wrong, of course, there is none. Therefore, the Court will not grant relief. Hence collusion is an absolute bar. DISSOLUTIOX OF THE MARRIAGE. 19 Intervention. — The suppression of material facts justi- fies intervention (23 & 24 Yict. c. 144, s. 7) ; but not ■withholding a decree, if the Court thinks the petitioner be entitled to it. {Alexander v. A., 2 P. & D. 164.) Grounds. — The grounds of intervention are two only — Collusion. Suppression of material facts. Either party may intervene. (22 & 23 Vict. e. 144, s. 7.) In practice the Queen's Proctor only does so on the ground of collusion, and in his official capacity. He must confine himself to collusion in suits for dissolution, but he may, as a member of the public, show cause against a decree nisi. {Masters v. 21., 34 L. J., Mat. 7.) Intervention, though dealt with here, is usually after the decree nisi, because, till the hearing, material facts are not usually known to have been suppressed. {Con- radi V. C, 36 L. J., Mat. 08.) The Queen's Proctor, or a member of the public, may intervene in a suit at any time before decree absolute {Clements v. C, 33 L. J., Mat. 74), and oppose the decree. {Boicen v. B., 3 S. & T. 530.) Costs. — Intervention is on peril of costs if unsuc- cessful. {Forster v. i^., 3 S. & T. 151.) Discretionary Bars. Adultery. Except under special circumstances of extenuation, the Court will not grant a divorce where the petitioner also has been guilty of adultery. Illustrations. — A petitioner believing his wife to be dead married again. He afterwards discovered that she was living in adultery, and sued for divorce charg- ing her with adultery. She answered charging him c2 20 DIVORCE I- AW. with adultery. The Court acquitted him of intentional or wilful adultery, and granted him a divorce. [Morgan V. i!/., 1 P. & D. G44.) A husband married again after the decree nini in his favour believing his marriage to be dissolved. Though this was not yet the case, the Court treated his conduct as innocent, and granted him a decree. [Nohle v. N., 1 P. & D. GQl.) A wife was compelled by her husband to lead a life of prostitution. The Court treated her adultery as enforced, and gave her a decree. {Colcjixtn v. C, 1 P. & D. 81.) As in the case of adultery, so with the other defences,, their sufficiency depends upon the circumstances under which they arise. If the conduct of the petitioner is wilful and without extenuation, the Court usually declines to grant him any relief. Effect of Dchu. Illustrations. — A husband discovered his wife's adul- tery fourteen years before he took proceedings for a divorce. In the interim he had accumulated ample means to defray the cost of the proceedings. lie sought to explain the delay as attributable to his want of means. Explanation rejected, and suit dismissed. [SJiort v. 8. ct al, 3 P. & D. 193.) A husband, whose pecuniary circumstances were em- barrassed, postponed proceeding until he could bring forward conclusive evidence of his wife's guilt. Delay held reasonable. {Wihon v. W., 2 P. & D. 441.) A desire to avoid a public exposure of the scandal at a mother's wish, and a forbearance from proceedings. DISSOIATIOX OF THE MARRIAGE. 21 for twenty years, though a long delay, have not been •considered sufficient grounds for barring a decree. {Nonuan. v. N., 2 P. & D. 58.) An impression that by the elopement of his wife to America, and her residence there, a divorce would be imnecessary, and mental prostration due to his wife's misconduct, have been held a sufficient explanation of the petitioner's delay, {lleaviside^s Dicorcc, 12 CI. & F. Crudfi/. Cruelty, isolated cnid triJJiii^i. — The cruelty of the hus- band may be isolated, and of such a character as not to raise an inference of future risk to the wife, in which case the Court will not take judicial notice of it. Illustration. — A petitioner committed a violent act which caused his wife pain and injiuy. It was not accompanied by threats nor intentional. The Court treated it as not raising an inference of future risk, and therefore immaterial. [Neild v. N., 4 Ilagg. Con. p. 263.) Cvucltij tlie remtt of Misconduct. — Again, it may be produced by the respondent's misconduct. Illustration. — A respondent wife, addicted to drink- ing, had, when under the influence of drink, been violent. Her husband, in restraining her, was also violent. {Peannan v. P., 29 L. J., Mat. 54.) A husband's cruelty preceded and conduced to his wife's estrangement and subsequent adultery. He sued -thereupon for a divorce. The Court refused him a decree. {Lcmpricre v. L., 1 P. & D. 569.) Bcscvtion. For desertion, see ant<-, p. 14. 22 DIVORCE LAW. Wilfid Neglect conducing to Adulter//. Illustration. — Taking a wife to a dancing-hall with another man, allowing her to dance with him constantly,, and then leaving her there in his care, night after night, is wilful neglect conducing to adultery. {Barnes v. £.y 37 L. J., Mat. 4.) Conduct conducing to Adulter//. Conviction and imprisonment of a party to a mar- riage does not justify desertion by the other. If such a desertion conduced to adultery no remedy could be obtained upon it. Illustration. — A wife was convicted and imprisoned for theft. She did not on release return to her hus- band, but to domestic service. She next applied to him to take her back. He refused. She remained in service. The husband's conduct was not held to have conduced to her subsequent adultery. [WiUiamson v. W. and Bates, 46 L. T., N. S. 920.) Numerous similar cases varying in detail only, but not in principle, are to be found in the reports. NiiUit/j of Marriage. — Suits for nullity are to have marriages declared void. Marriages are — 1. Void ah initio. 2. Voidable at the option of the injured party. Marriages void ah initio. Marriages entered into by parties — (i) To a previous marriage, (ii) One of whom is insane, (iii) Who are related within the prohibited degrees of relationship, are void ah initio. A previous Marriage. — A prior existing marriage- renders the second marriajro null and void on the KULLITY OF MARKIAGE. 23 ground of bigamy. {Miles v. Chilton, 1 Eob. G98 ; N. C. 636.) Inscniif//. — An insane person has no power to con- sent. The contract of marriage requires consent : lience a marriage, one of the parties to which was insane when it took place, is null and void. {Browning v. lieanc, 2 Pliillim. 69 ; Durliam v. D., The Times, early in 1885. Here the insanity of the respondent was not established.) Consanguinitij or Affinity. — Marriages entered into between persons who are related to one another within the degrees of consanguinity or affinity stated in the Book of Common Prayer are null and void. (28 Hen. 8, c. 7, s. 11 ; E. V. St. Giles, 11 Q. B. 173; Sherivood v. May, 1 Moo. P. 0. 385 ; li. v. Brighton, 1 B. & S. 447 ; 5 & 6 Will. 4, c. 54; Ellerton v. Gastrell, 1 Corn. 318 ; Gilbert's Eq. 156 ; Bunbury, 145.) By Lord Lynd- hurst's Act of 1835, these marriages, which had been till then voidable, were made void eib initio. Public Policij. — The interests of society are protected by laws which regulate the status of its members and of their issue. Marriages in violation of these laws are held void. They are opj)osed to the interests of society, which are synonymous with public policy. Illustration. — English persons within the prohibited degrees of relationship married abroad where the cere- mony was permissible. The marriage was declared void in England, the country of the domicile of the parties. {Brook v. B., 3 Sm. & G. 481.) Had the marriage not been declared void ah initio, the status of the parties, and of their issue, if any, "would have been illegally changed. The parties would be regarded as man and wife, and their issue as legiti- mate, which in neither ease would have been so. 24 DIVORCE LAW. Yoid marriages may be declared so at any time for tlie reasons above given. {Broiotiitg v. lleane, 2 Phillim. 09; Pride \. Bath, 1 Salk. 120; Ucnjdon v. Gould, ih. 119.) Voidable 3Iarriages. — Marriages are voidable on the ground (1) of impotence ; (2) of want of age. Impotence. — A marriage is voidable, at the suit of the injured party only, on the ground of impotence, or the physical incapacity of the other party for sexual inter- course. [North y. Seaion, 3 Phillim. 147 ; Scott v. Jones, 2 N. C. 38.) Evidence. — To estabhsh impotence it is necessary to prove (1) that the marriage has not been consummated ; (2) that the respondent is unable to consummate it. [Scott V. Jones, 2 N. C. 38.) Triennial cohabitation is usually requisite in the ab- sence of an apparent physical infirmity. Independent evidence of impotence may be indis- pensable. Voidable Marriages, n-Jten to be set aside. — Voidable marriages must be set aside, if at all, dming the lifetime of the parties. If the party injured does not complain no one else can do so, being unable to prove the injury, which is necessary to maintain the suit. {A. v. li., 1 r. & D. 559.) Want of Age. — A minor may sue for nullity of mar- riage [S/icrn-ood v. lia//, 1 Moo. P. C. 397 ; Green v. Dalton, 1 Ad. 290), or may rescind the contract on attaining majority ; and tlie consent of parents or guardians, through the medium of notice by banns or other statutory notice, is requisite also before marriage. (4 Geo. 4, c. 70, s. 10 ; li. v. Birmingham, 8 B. & C. 29.) The parents or guardians of minors may sue on their JU])ICIAL SEPATIATIOX. 25 laelialf on establishing a pecuniary interest in tlieni. {Bevan v. McMahon, 2 S. & T. 60.) Defences. — The defences to a suit for nullity consist of — a denial of the grounds of the petition ; delay in suing ; suppression of relevant facts ; absence of sin- ■oerity or bona fides in suing. (//. v. (7., 1 S. & T. 605 ; .Briggs v. Morgan, 2 Ilagg. C. C. 330 ; E. v. T., 3 S. & T. 312; Guest v. 6'., 2 llagg. C. C. 321.) Pleas u-//ie/i mag he proved on fallarc of Petition. — Pleas of adultery, cruelty, and desertion are open to the re- spondent if the petition fails ; otherwise they would 2iot be admissible, because proof of nullity of marriage would at once render such charges w'holly inappro- j)riate. Judicial Separation . Either husband or wife may sue for a judicial sepa- ration on the ground of adultery, cruelty, or desertion. In the case of the wife's adultery, the husband usually sues for dissolution. Each of these offences has been already dealt with. See ajite, pp. 11, 13, 14. Desertion without reasonable excuse. — Desertion without reasonable excuse, for two years and upwards, is ground for judicial separation to husband or wife. {Cargillx. ■C, 27 L. J., Mat. 70 ; Pasing v. P., 33 L. J., Mat. 150.) The defences to this suit are — (1) Denial of the offences charged ; (2) Proof of a matrimonial offence against the peti- tioner, as adultery, cruelty, connivance, collu- sion, condonation, desertion ; Also, (3) A decree already made upon the same issue ; (4) A deed in which the petitioner has covenanted not to sue in the Divorce Court. {Marshatl v. J/., 5 P. D. 23.) 26 DIVORCE LAW. Restitution of Conjugal RigJds. A suit for restitution of conjugal rights may be insti- tuted by either of the parties to the marriage, Avhen deprived by the other of cohabitation without a legal ground. What is a legal ground will appear presently, when defences to a suit for restitution of conjugal rights are reached. Until a recent Act was passed (M. C. A. 1884), the offending j)arty was compelled, in the absence of such ground, to comply Avith the decree of the Court, and render restitution of conjugal rights to the other, on pain of imprisonment. Now, however (see sect. 5), on disobedience to the decree, he becomes liable to a suit for judicial separation, on the ground of desertion. The disobedience is treated as evidence of intention to desert, and thereupon a suit for desertion may be insti- tuted forthwith. If the wife be the petitioning party, she may claim a divorce, where her husband has also committed adultery, on the grounds of adultery and desertion. Maintenance on Decree. — On a decree of restitution in favour of the wife, the Court may order that, on failure to comply with the decree within the time limited by the Court, the respondent shall pay to the petitioner,, periodically, fixed sums, such payments to bo enforce- able like orders for alimony in suits for judicial separa- tion. The Court may, if it think fit, order the husband,, to its satisfaction, to secure to the wife such periodical payment, and, for that purpose, may refer it to one of the conveyancing counsel of the Court to settle and approve of a deed to be executed by all necessary par- ties. (M. C. A. 1884.) RESTITUTION. 27- Object of the Court. — The object of the Court in permitting suits for restitution teas to control the re- spondent in his marital capacity, and to compel him to render back to his wife her conjugal rights, if he had wrongfully deprived her of them. {Firebrnce v. F., 4: P. D. 68 ; Yeatmcm v. Y., 1 P. & D. 489.) Object of the Petitioner. — The object of the petitioner in a suit for restitution has been almost invariably hitherto to enforce a money demand, on pain of a decree for restitution in the event of a refusal. Now, however, imder the new Act (see sect. 2), dis- obedience is not followed by attachment. The legislature, finding by experience that it is well for man and wife at times to live apart, where incom- patibility of temper or other obstacles to happy married life exist, no longer enforces cohabitation at the will of one of the parties, but substitutes the remedy of sepa- ration on the ground of desertion, taking care that the process of the Court shall no longer be used to extort unjust pecuniary terms. Defences. — The ordinary defences to a suit for resti- tution are adultery and cruelty. Illustration. — A wife leaves her husband. He sues for restitution. She may plead adultery or cruelty ; either, if proved, will disentitle him to relief. {Bur- roughs V. B., 2 S. & T. 574, 1859.) Each of the grounds for nullity of marriage is also a defence, because, if proved, it would upset the mar- riage, and, that being done, a claim for restitution of conjugal rights, or rights of marriage, would obviously be no longer tenable. Insanity after marriage is no answer. {Haymird V. H., 1 S. & T. 83.) Where insanity supervenes after marriage the proper 28 DIVORCE LAW. remedy, sliould cohabitation become unsafe, is restraint •and not desertion. {Radford v. R., 28 L. T., N. S. 279.) Separation, in pursuance of an agreement, would be •an answer. ( Woodeij v. W., 31 L. T., N. S. 647.) A covenant in a deed not to institute matrimonial proceedings, subsequent to the execution of the deed, in respect of anything that occurred before it, may also be pleaded as an answer. {MarsJiall v. J/., 5 P. D.) Failing proof of the above charges, the Court will make a decree of restitution, which the respondent can obey or not under the new Act. If she obeys it, the litigation ceases. If she does not, he can then institute proceedings for desertion, alleging her disobedience to the decree of the Court as his ground for so doing. Jurisdiction. — A wife cannot sue for restitution ex- cept in the country of her husband's domicile. [Yelvcr- ton V. r., 1 S. & T. 574.) This is the law now, but it is doubtful if it would receive judicial sanction where a case of hardship to an innocent wife would result. (See Kihoyd v. A^., 4 P. D.) Jactitation of Marriage. — This is a suit to counteract the boasting of the respondent that he is married to tlie petitioner, whereby a common reputation of their mar- riage may ensue. The party wronged is the only one who may sue. (Campbell Y. Corleij, -'51 L. J., Mat. 60.) Defences. — 1. A denial of the boasting. 2. Setting up the actual marriage. 'J. A plea that tlie boasting, though false, was not malicious. (Milward's Irish Reports.) ( 29 ) CHAPTER III. ALIMONY. "Where husband and wife are in litigation in the- Divorce Court, and the one has means and the other none, the Court can order the party having means to contribute a certain definite sum for the support of the- other party during and sometimes after the litigation. The provision so made is called alimony pending suit^ and permanent alimony. The order for alimony pending suit is made irrespec- tive of the merits of the suit. As they are not yet in question they are irrelevant. {Bird V. BeU, 1 Lee, 209.) The Amount. — There is no fixed rule as to the amount {Bee^i V. it'., 3 Phillim. 389), but it is usually a fiftli of the husband's income. {IIa)jicard v. //., 28 L. J., Mat. 9.) Cudody and Access. In suits for judicial separation, nullity, or dissolu- tion, the Court has power over the custody, access, main- tenance, and education of the children of the marriage^ both pending, on, and after, the final decree. (M. C. A. 1857, s. 35, and M. 0. A. 1859, s. 4.) Orders pending suit are called intcrint orders, and the latter final orders. Frincipks guiding the Court. — The Court acts upon the existing facts of the case — e. g., the age of the chil- dren, their position in relation to the other members of so DIVORCE LAW. the family, and tlie fact that there is a suit pending" between their parents in which there are conflicting charges the truth of which is not yet decided. Hence the allegations and affidavits in the case are not usually of importance. {Ei/der v. H., 2 S. & T. 227 ; 30 L. J., Mat. 44 ; 9 W. E. 440 ; 3 L. T., N. S. 678.) The Interest of the Children. — Where the interest of the children will suffer, all other considerations give way. {D' Alton v. D'A., 47 L. J., Mat. 59.) This is true, both pending suit and on decree. {Ibid. ; and see Boynton v. B., 30 L. J., Mat. 156.) Father innocent. — An innocent father retains the cus- tody of his children, and the innocent wife is made to suffer as little as possible, under the circumstances. {D' Alton V. D'A., ante.) Mother innocent. — It seems needless to state that where the wife is innocent, and the husband has broken up his home, he will not only not have custody of the children, but, if he can, he will have to find means for their maintenance. {Milford v. J/., 1 P. & D. 715 ; 38 L. J., Mat. 63 ; 21 L. T., N. S. 155 ; 17 W. E. 1063.) Neither i)inocent. — When neither husband nor wife are fit to have the custody of their children, it is en- trusted by the Court to third parties, who may be either interveners in the suit or nominees of the Court. [Chet- uijnd V. a, 1 P. & D. 41 ; 35 L. J., Mat. 21.) Third Parties maij intervene. — When a third party shows that he is entitled to intervene upon the question of custody or access, he is permitted to do so. {Chet- uynd V. C, 34 L. J., Mat. 131. Orders are Temporary. — An order is but temporary, and may be varied on sufficient grounds. (March v. M.y 1 P. & D. 439.) CUSTODY AND ACCESS. 31 Poicer of the Court. — The power of the Court con- tinues till the children are sixteen years of age. {Mallin- son V. J/., 35 L. J., Mat. 84 ; 1 P. & D. 221 ; 14 W. R. 978; 14 L. T., N. S. G36.) Maintenance. — Maintenance follows custody (Webster V. W., 31 L. J., Mat. 184), /. e., an order for the main- tenance of the children is made upon the unsuccessful applicant for custody, if he or she can find the means. Power of Court in Suits for Restitution, and on Dismis- sal of Suit. — The Court has no power over the children in suits for restitution [Chambers v. C, 39 L. J., Mat. 56 ; 22 L. T., N. S. 727 ; 18 W. E. 528) ; nor where the petition is dismissed. [Seddon v. >S'., 31 L. J., Mat. 101.) Co-respondents. — A husband, charging his wife with adultery, must charge the adulterer also, or, if he is unable to serve him with the petition and citation, he must obtain leave to dispense with him. (M. C. A. 1857, s. 28, and r. 4.) Damages. Where a husband sues his wife for adultery, he may olaim damages from the co-respondent. . The Amount. — The jury settles the amount. The Principle of the Assessment. — The measure of damages is the value of the wife of whom the petitioner has been deprived. [Cowing v. C, 33 L. J., Mat. 149 ; Forster v. F. ; see note to Cowing v. C.) The Application of them — The Court settles to what they are to be applied. (M. C. A. 1857, s. 33.) Particular Application. — The application of the da- mages depends upon the priority of interests of the parties and their children. (See Billingaij v. B., 35 32 mVORCE LAW. L. J., Mat. 84 ; Clarh v. C, 31 L. J., Mat. 61 ; Latham V. L., 30 L. J., Mat. 43.) Settlements. Wliere tlie Court pronounces a decree on the ground' of the icife's adulter//, and she is shown to be entitled to any property, the Court viaf/ order it to be settled for the benefit of the innocent husband and children. (M. C. A. 1857, s. 4-1) The existence of the disability of the wife's coverture at the time of the execution of any instrument under the order of the Court, in pursuance of the above enact- ment, shall have no effect. (M. C. A. 1860, 23 & 24 Yict. c. 144, s. 5.) After final deerce in suits for nulliti/ a)id dissolution, the Court may vary the settlements for the benefit of either child or parent (M. C. A. 1859, s. 5 ; Marsh v. M., 36^ L. J., Mat. 65 ; S>/hes v. S., 2 P. & D. 163) ; or for iha benefit of the innocent party alone. (M. C. A. 1878,. s. 3.) Protection Orders. By 41 Yict. c. 79, s. 4, orders are obtainable by wives on conviction of their husbands for assault under stat. 24 tt 25 Vict. c. 100, s. 43, of protection, and separa- tion, similar to a decree of judicial separation on the ground of cruelty. An appeal lies from such an order to the Divorce. Division. A wife deserted by her husband may apply to the Court for an order protecting her property acquired since the desertion. {SewellY. 8., 28 L. J., Mat. 8.) Suits for th<; Deelaration of Legitiniaeij. Natural-born subjects of the (iueen, or persons ■whose right to bo deemed so depends wholly or in part LEGITIMACY SUITS — ACTS ON PETITION. 33 on theii" legitimacy, or the validity of a marriage, being domiciled in England or Ireland, or claiming real or personal estate in England, may apply to the Court for a declaration of legitimacy, on a month's notice to the Attorney- General under 21 & 22 Vict. c. 93, ss. 1 and 8. (See r. 174; Uptons. Att.-Gcn., 32 L. J., Mat. 177; G Jur., N. S. 404.) Acts on Petition. — See rules 56 to Gl, inclusive. The proceedings are therein fully explained. For a case, see also Di/sart v, J)., 2 N. C. 16. These cases are not of frequent occurrence. D. 34 DIYOKCE PRACTICE. CHAPTEE lY. PRACTICE. The Petition. All matrimonial proceedings are commenced by peti- tion. The petition should state, concisely and clearly, and in separate paragraphs, the marriage, &c., and the charges upon which the petitioner relies. Cross Suits. — When cross suits are instituted by hus- band and wife, each against the other, they are usually consolidated, as the trial of one generally decides the issues in both. {Osborne v. 0., 33 L. J., Mat. 38.) Opinion of Judges. — Divorce may be decreed on behalf of or against a lunatic through a guardian ad litem. Kelly, C. B., Denman, J., Pollock, B. ; contra, Brett, J., Keating, J. Divorce is not a crime. Hence divorce proceedings are not criminal proceedings. Hence the rule that criminal proceedings against a lunatic shall be stayed till sanity returns does not apply. (See Mordaiint v. Moncrieffe, L. E., 2 Sc. & Div. Appeals, 374.) Minors over seven years may appear by guardian as petitioners, respondents, or interveners (R. 105), not necessarily co-respondents. (P. 108.) Forma pauperis. — Parties who desire to sue in forma, pauperis must apply for leave, on counsel's opinion that there is reasonable ground for the suit (P. 25 ; see also M. 0. A. 1857, s. 54), on the pauper's soli- THE PETITIOiSr, ETC. 35 citor's affidavit tliat tlie case on which the opinion was given is complete and truthful, and on the pauper's affidavit that he is not worth 2bl. and his wearino; apparel. (E,. 26.) Where the husband sues in forma pauperis the wife may apply to defend as a pauper, on affidavit that her separate property does not exceed 25/. after payment of her debts (R. 210) ; and, when she is petitioner, the husband may, on a similar affidavit, defend as a pauper. (R. 211.) JVithdrauril of Petition. — The petition, once filed, cannot be withdrawn without motion for withdi-awal or consent of the respondent. [Luta-ijche v. L., 28 L. J., Mat. 56.) Re-service of Petition. — Re-service of the petition on amendment is unnecessary where the respondent would not be prejudiced. {Amhier v. A., 32 L. J., Mat. 6.) The verifying Affidavit. — The allegations in the peti- tion must be supported by the petitioner's affidavit, verifying on oath such of them as are within his own knowledge, and stating his belief that the others are true. (E. 2.) Denial of Collusion and Connivance. — In all original petitions, except those for restitution of conjugal rights, the verifying affidavit must contain a denial of collu- sion or connivance between the parties. (See r. 3 ; M. C. A. 1857, s. 41.) When collusion is pleaded, the usual verifying affi- davit must contain the words in reference to collusion, " otherwise than is hereinbefore set forth." Preliminanj Demand of Restitution. — The affidavit verifying a petition for restitution of conjugal rights d2 36 DIVOllCE PRACTICE. must satisfy the registry that the petitioner has de- manded cohabitation and restitution, and that they have been withheld. (R. 175.) The verifying affidavit is necessary, under sect. 41 of the Divorce Act of 1857, as security on oath by the petitioner that the proceedings are hond fide. {Deane v. I)., 1 S. & T. 90.) The Citation. — After filing the petition and the verify- ing affidavit, the petitioner must extract a citation, and serve it on the respondent parties under the seal of the Court. (R. 9.) The Prcecipe. — The party extracting the citation takes it "uith a jircecipe for deposit in the registry. The prcecipe contains his London address, and particulars of the citation. It is then a guide in the registry for the issue of additional citations, if necessary. (See Kirk v. Dolby, 6 M. & W. 639, qxs. prcecipcs, generally.) Service. — Service of the citation must be personal, if possible, by delivery of a copj^, and production of the original, if required. (ER. 10, 11 : and see M. C. A. 1857, s. 42.) The practice is on service of the citation to serve also a copy of the petition. (R. 12.) Suhstitiifcd Sereice. — Substituted service is only al- lowed on application to the Court, and when personal service is impossible. (R. 13.) Substituted service is by means of advertisement under the direction of the registry. {Ehlcij v, E., 32 L. J., Mat. 145.) Every effort must have been made to effect personal service. {Ludioiv v. L., 28 L. J., Mat. 5.) Itctv.rn of Cit(itio)t. — After service the citation must THE PETITION, ETC. 37 'be indorsed with certificate of service, returned into the registry, and there filed. The retm-n is necessary to prove that the proper steps have been taken. {Cook v. C, 28 L. J., Mat. 37.) Affidavit of Service. — The affidavit of service should have the citation, with the date of service indorsed upon the back, appended as an exhibit. (R. 18.) Citation mislaid. — Where a citation is mislaid after service there must be au affidavit of service {Ferret v. P., 35 L. T., N. S. 910), specifying in what capacity the party is served {Teji/ple v. T., 31 L. J., Mat. 34), and annexed to it the duplicate of the citation to which it refers, and this must be marked by the commissioner before whom the affidavit is sworn. (R. 18.) Ajjpearance and I^on-Appearance. — The next stage in the proceedings is that of appearance, or the necessary procedui'e by the petitioner on non-appearance of the respondent parties. Appearance. — Appearance must be entered in the appearance book in the registry. (E.. 19.) And an address given by the party appealing within three miles of the Greneral Post Office. (R. 21.) Time for Appearance. — The usual time for appearance is eight days, but circumstances render a definite fixture in all cases impossible. (See Child v. C, 33 L. J., Mat. 156.) Appearance late in tlic Suit. — Leave to appear maybe applied for at any time after a proceeding has been taken in default, (under r. 20), by summons in the registry, (r. 185), founded on an affidavit of the facts, which must be satisfactory to the officiating registrar. tJ8 UIVORCE PRACTICE. Appearance under Pretest. — A person objecting to the jurisdiction of the Court may appear under protest, and in eight days file an act on petition in extension of such protest, and deliver a copy to the petitioner. (E.. 22.) Non-Appcaranee. — On non-appearance the affidavit of service and the citation are filed in the registry before the petitioner can proceed. (R. 17.) Amendments. — On good grounds a petition or answer may be amended at any time before the decision of the Court. {Bunyard v. B., 32 L. J., Mat. 176 ; 11 W. E. 990.) The principle on which amendments are allowed,, like appearances after time, is that justice may be done. {Roicley v. B., 29 L. J., Mat. 15.) Proceedings hi/ Default. — Proceedings by default take place on non-appearance by the respondent parties within the time given. (See The Citation.) The peti- tioner can take them, on affidavit filed in\the registry, of service of citation, and of search for and^non-appear- ance, or appearance and no answer, within the specified time. The Ansu-er. — The next step, in the event of regular procedure, is the answer. (See Defences to Matri- monial Suits.) The time for it is usually within twenty-one days. {Conradi v. C. et al, 36 L. J., Mat. 68.) When the answer contains distinct allegations, in addition to denials, there must be an affidavit filed verifying the former. (R. 30.) Appearance and no Ansiver. — Aj^pearance and no answer does not give a party a locus standi at the trial,, except as to costs. THE PETITION, ETC. 39 Particulars. — The object of particulars is to enable the party charged to meet the charge by evidence to the contrary, and to preclude surprise. Applications for particulars are made by summons in the registr3^ (RE. 38 and 181.) Demurrers. — Either party may demur to the allega- tions of the other. Demurrers here, as elsewhere, admit the facts, but deny that they constitute the offence charged, or are an answer to the allegation made. A i^arty cannot plead and demur to the same charge in the petition without the leave of the Court. [Lcete V. i., 31 L. J., Mat. 121.) The generality of a charge is not ground for de- murrer or amendment, but only for particulars. {Ibid.) Further Pleadings. The Reply. — Fourteen days are allowed in wliich to deliver a reply, and the same time for subsequent plead- ings. (E. 32.) Joinder of Issue. — Joinder of issue is not allowed. A denial raises the issue in divorce proceedings. Mode of Trial. — Motions for dii-ections for mode of trial are now abolished, and trial is as follows : — 1. Where damages are not claimed trial is by oral evidence, before the Cornet itself, without a jury. 2. Where damages are claimed, trial is before a common jury, subject to an application by summons for a different mode of trial. (E. 205.) Questions for the Jury. — Questions for the jury are di-awn up by the petitioner, and settled by the regis- trar. (E. 41.) They depend upon the pleadings. 40 DIVORCE PRACTICE, Hearing and Trial. — Hearing, strictly used, signifies the hearing of tlie cause before the Court itself "without a jury. Trial signifies the trial of the cause before a jury. (See r. 205 (1) and (2), July, 1880.) Searing Demurrers. — Demurrers are set down for hearing as causes are, and, on application, the Court will fix a time for argument. (R. 67.) When the demurrer goes to the root of the whole case, it is usually heard first. {Griffith v, G., 33 L. J,, Mat. 81.) In Camera. — The Com't may hear a suit for nullity or judicial separation in camera, but not a suit for dis- solution, (M. C. A. 1857, s. 22 ; and C. v. C, 1 P. & D.- 640 ; 38 L. J., Mat. 37.) But where the disclo- sures are likely to be prejudicial to public morality, it is customary, on consent, to take suits for dissolution in camera. Evidence. — Evidence in divorce is oral or fivd tocc, and written, as by affidavits, exhibits, letters, diaries, and such like. [Robinson v. E. ef al., 1 S. & T. 366.) Oral Evidence. — Witnesses are generally examined in open Court. (M. C. A. 1875, s. 46.) Evidence by Affidavit. — Mere introductory matter, as the marriage, cohabitation, terms of the separation or parting, &c., may be proved by affidavit, but not the substantial case for the petition by affidavit alone. {Adams v. A., 22 W. E. 192 : 29 L. T., N. S. 699.) Comtnissions. — When persons are too ill to attend {Stone V. S., 31 L. J., Mat. 136), or abroad and unable to attend, or about to go abroad {Firie v. Iron, 1 DowL 253), before the hearing (M. C. A. 1857, s. 47 ; and see rr. 129, 130, and 181 to 184), commissions issue on THE PETITION, ETC. 41 application in tlie registry for tlieir evidence to be taken on commission. The other side have due notice to enable their repre- sentative to attend, and cross-examine if necessary. {R. 131.) Evidence taken on commission is subject to the same objections as evidence ordinarily tendered at the trial. {Brou-n v. B., 33 L. J., Mat. 203 ; Stone v. S., 31 L. J., Mat. 136.) Its admissibility -will be decided when it is tendered. {Rill V. //., 30 L. J., Mat. 197.) There must be satisfactory^ evidence of the witness's inability to attend at the trial before the deposition will be admitted. (See rr. 132 to 137, inclusive.) Evidence of Parties. — The parties, and their husbands and wives, may now give evidence in suits on the ground of adultery. (32 & 33 Yict. e. 68, s. 3.) But a witness need not undergo cross-examination respecting his or her adultery, unless he has abeady denied it in the examination-in-chief. Parties now frequently appear and deny the adultery, and have to undergo a rigorous cross-examination. Proof of Marriage. The marriage is usually proved by a certified copy of the register, or by a witness of the ceremony (Q. v. Mainicarinij, 26 L. J., M. C. 11) ; or it may be pre- sumed from the evidence given relating to it, as by repute, &c. (Sichely. Lambert, 12 W. E,. 312.) Identity. Handirriting. — Handwriting alone is seldom sufficient to prove identity. 42 DIVORCE PRACTICE, PJwfograph^. — Photograplis will not be received by the Court when better evidence can be obtained. The question of identity, though apparently a simple one, is a standing block in a large number of cases. The petitioner's evidence, of his wife's identity, and of her adultery, Avill not be acted upon by the Court unless it is corroborated. {Harris v, //,, 2 P. & D. 77.) T/ie Decree. — In suits for dissolution the decree of dissolution is called a decree nisi, and does not operate until it is made absolute. Wcw Trial and Hearing. A new trial and hearing, which were provided for by sect. 55 of the Matrimonial Causes Act of 1857, must now be applied for in accordance with the following amended rule. Bule 62, Julf/, 1885. — An application for a new trial of the issues of fact tried by a jury, or for a rehearing of a cause, shall hereafter be made to a Divisional Com-t of the Probate, Divorce, and Admiralty Division, and shall be by notice of motion filed in the registry stating the grounds of the application, and whether all or part only of the verdict, or findings, or decree is complained of ; and sucli notice of motion shall be filed and served upon the other parties in the cause, or their solicitors, within eight days after the trial or hearing ; and the motion shall be made eight days after the service of the notice of motion if a Divisional Com't shall be then sit- ting, or otherwise on the first day aj)pointed for a sitting of the Divisional Court after the expiration of the eight days, and the time of the vacations shall not be reckoned in the computation of time for serving such notice of motion. THE PETITION, ETC. 4a Eulc 62a. — The notice of motion may be amended at any time by leave of the Conrt, or a judge, on such terms as the Court or a judge may think fit. Grounds for a New Trial — A new trial is only granted on the ground of error, or miscarriage on the part of the jury. {Scott v. S., 3 S. & T. 320 : 33 L. J., Mat. 1.) Appeal. — Either party dissatisfied with the decision of the judge, on the application for a new trial or re- hearing, may, within fourteen days, appeal to the Court of Appeal. (23 & 2-4 Yict. c. 144, s. 2.) Appeals noio go to tJie Court of Appeal. — Now all appeals which might have been brought to the full Court under M. C. A. 1857, or any other Act, must be brought to the Court of Appeal. (J. A. 1881, c. 68, s. 9.) Further App)eals. — The decision of the Court of Appeal on any question under the Divorce Acts, re- lating to divorce or legitimacy petitions, is final, except in suits for dissolution, or nullity, or declarations of legitimacy, or on questions of law on which the Court of Appeal can give leave to appeal ; and, save as above, no appeal lies to the House of Lords under these Acts. {Ibid., sub-s. 2.) Time of further Appeal. — Subject to any order of the House of Lords, under the Appellate Jurisdiction Act, 1876 (c. 69), every a^speal to the House of Lords in a suit for dissolution, nullity, or for a declaration of legitimacy, must be within a month of the decision of the Court of Appeal, if the House of Lords is then sitting, or within fourteen days after it next sits. {Ibid.y. Part 3 ; Cleaver v. C, L. E., 9 Appeal Cases, 631.) 44 UIVORCE PRACTICE. Course u-Jien no Apjwal. — When there is no appeal from the decree nisi, or an unsuccessful one, the suit usually comes to an end in six months after the decree on pronounciation of the decree absolute. (See J. A. 1881, c. 68, s. 10.) The Decree ahsolate. — The final step, in the absence, or on failure of intervention (see ante, p. 19), is now reached, namely, the decree absolute. The Court will only dissolve a marriage on the appli- cation of the innocent party. {Ouseyw. 0. and Atkinson, 1 P. D. bQ.) On pronounciation of the decree absolute the suit is concluded, and the parties to it may marry as soon afterwards as they please. (M. C. A. 1868, s. 4.) Decrees absohite are pronounced in Court upon motion days after the motions are over. Certain affi- davits must first be filed. (See rr. 80, 194, &c.) The affidavits are of search without success for appearance of any person wishing to intervene, or show <:'ause against the decree, or, if there has been an appear- ance, of the proceedings thereon. (See rr. 80, 194, and •207.) Alimony. — The proceedings in relation to alimony are carried on in the registry by petition and answer, and the respondent can be called upon to attend for cross-examination concerning his means. The party without means is entitled to petition for alimony on filing a petition, or on being served with one, and appearing in the suit. (R. 82.) In the absence of special circumstances an order follows as a matter of course. {Miles v. CJiilton, 1 Rob. 700.) The verifying affidavit must also have been filed. (R. 81.) THE PETITIOX, ETC. 45 Compliance with the order to pay alimony or costs is enforceable by debtor's summons in the County Court. See The Debtors' Act. AttacJnnents. — Decrees and orders in matrimonial proceedings are enforceable like judgments, orders, and decrees in Chancery (20 & 21 Vict. c. So (M. C. A. 1857), s. 52), except the above. For proceedings in relation to custody and access, see infra, Motions and Summonses. Motions and Summonses. The rules direct the proper method of dealing with certain matters in divorce proceedings, and, except where the rules and practice direct a different mode of procedure, all matters can be dealt with by summons. (E. 160.) Motions. — Motions in divorce are applications to the judge in Court upon matters incidental to the various matrimonial suits, and in accordance with certain rules of procedure. The following applications must be by motion : — Applications to dispense with a co-respondent. (ER. 4 and 5.) Applications for substituted service. (E. 13.) Applications for leave to intervene. (R. 23.) Applications for new trial or rehearing. (E. 62.) Showing cause against a decree. (E. 76.) Applications to confirm the registrar's report in rela- tion to marriage settlements. (E. 102.) Applications for custody of children. (E. 104.) Applications for attachments. (E. 110.) 46 DIVORCE PRACTICE. Applications for discliarge from prison under an attachment. (R. 112.) Applications for the discharge of a wife's protection order. (E. 125.) Summonses are applications to the judge or a regis- trar in chambers. Motions and summonses must be supported by affi- davits of the facts intended to be used at the applica- tion, and of which the other side must have due notice, and also copies of the affidavits. Sninijioiiscs — Appeals. — An appeal from a judge on summons lies to the same judge in Court, and thence to the Court of Appeal. Costs. — The husband is usually liable for the wife's costs, for he has theoretically all the property on mar- riage. The exception arises where the reason fails, /. e., ■where the wife has separate property of her own. The co-respondent's costs are entirely in the discre- tion of the Court. {Wlutmore v. 7F., 1 P. & D. 25.) He is not condemned in costs unless he is proved to have known the respondent was a married woman when he committed adultery with her. Maintenance and Settlements. Rule 214, 1885. — All applications to the Court to ■exercise the authority given by sects. 2, 3, and 6 of the Matrimonial Causes Act, 1884 (47 & 48 Vict. c. 68), are to be made in a petition, which may be filed as soon as by the said statute such applications can be made, or at any time thereafter. Rule 215, 1885.— Rules 97 to 102, both inclusive, of THE PETITION, ETC. 47 the Eules and Eegulations for tliis Court bearing date 26th December, 1865, and Eale 195 of the Additional Eules bearing date 14th July, 1875, and Rule 204 of the Additional Rules bearing date 17th April, 1877, shall, so far as the same are applicable, be observed in respect to applications by petition to exercise the autho- rity given by sects. 2, 3, and 6 of the Matrimonial Causes Act, 1884. PROBATE LAW. CHAPTER I. ORIGIN OF THE PROnvTE DIVISIOX. The Probate Division is one of the Divisions of the High Court of Justice. Its full designation is "the Probate, Divorce, and Admiralty Division." The Pro- bate Court, created by the Court of Probate Act of 1857, exercised all probate jurisdiction till the constitu- tion of the High Court of Justice in 1873. Probate Jurisdiction before 1857. — Prior to 1857 pro- bate jurisdiction had been exercised almost from time immemorial by the Ecclesiastical Courts. Business of the Probate Division. The Probate Division exercises " the voluntary and contentious jurisdiction and authority in relation to the granting or revoking probate of ■wills and letters of administration of the effects of deceased persons," and determines " all questions relating to matters and causes testamentary, except those relating to legacies, and the distribution of residues. (Court of Probate Act, 1857, Bs. 4, 23; J. A. 1873, s. 16.) County Court Probate Jurisdiction. — The Coimty Courts also are empowered to try probate actions where the estate of the deceased is less than 200/. personalty, and 300/. realty. (Court of Probate Act, 1858, s. 10.) Nature of Probate Business. — All probate business is PROBATE BUSINESS. 49 in relation to wills and intestacies, and it may be classed under two heads : — 1. Voluntary, or common form. 2. Contentious. Vohintarij Probate Business. 1. Yoluntary or non-contentious business "sball in- clude all common form business as defined by the Court of Probate Act, 1857, and the warning of caveats." It signifies " obtaining probate and administration, where there is no contention as to the right thereto, including the passing of probates and administrations through the Coui't in contentious cases where the contest is termi- nated, and all business of a non-contentious natui'e to be taken in the Court in matters of testacy and intes- tacy, not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or administration." (Personal applications in registries.) Rides in Non-Contentious Business. — This class of business is, in nearly all cases, provided for by printed rules guiding the probate registries in which it is trans- acted throughout the Idngdom, and to be bought at a trifling cost. T//e Probate Begistries. The principal Probate Pegistry is at Somerset House. Yarious distriet probate registries in England and Wales are enumerated in Schedule A. to the Com-t of Probate Act, 1857. Cases of Doubt. — Where cases of doubt or difficulty arise, in uncontested matters, the question in doubt must be submitted for the consideration of the principal registry, or the judge on motion. (See Pules, District Eegistry, 0, 20, 50, 98.) 1>. E ( 50 ) CHAPTER II. WHO MAY MAKE A AVILL. All persons may make wills, except — 1. Those who lack testamentary discretion. 2. Those who lack free will. Persons lacking Testamentary Discretion. No will made by any person under the age of ticcntij- one years shall be valid. (1 Vict. c. 26, s. 7.) Idiots, The Deaf Dumb and Blind, and Lunatics — are all incapable. The two former classes are wanting in the senses by which the reasoning faculty is brought into action (Coke, Litt. 42b) ; in other words, they lack " the common inlets of understanding." Lunatics. — The last named lack the animus testa ndi, and include those who are drunk when they make their wills. The animus testandi. — The animus tcstandi, or desire to make a will, must emanate from a sound mind. A sound Mind. — A sound and disposing mind means a mind of natm'al capacity, not unduly impaired by old age, or enfeebled by illness, or tainted by morbid influ- ence. {Smith V. Tibbitts, 36 L. J., Prob. 97.) Lucid Intervals. — Wills made in lucid intervals, by persons of habitually unsound minds, are valid. (Mud- • AVILLS, ETC. 51 ncaij V. Croft, 2 N. 0. 442 ; Prinscp v. Sombre, 10 Moo. P. C. 232.) " Acts done during a lucid interval are to be consi- dered as done by a person perfectly capable of contract- ing, managing, and disposing of bis aifaii's at that period. A multitude of questions have been raised upon the execution of a will during a lucid interval, and, that being proved, the will has been held valid and effectual to all intents and purposes." {Hall v. Warren, 9 Yes. CIO; Cartwricjhtw. C, 1 Phillim. 99.) Illustration. — A testator, subject to violent attacks of •excitement and passing delusions, made a will, consistent with the dictates of affection, during lucid intervals. During a fit of excitement he tore up the codicil. The lucid intervals having been established, the will and codicil were admitted to probate. [Borlase v. B., 4 N. C. 109.) Iiisatiifi/, onus of Proof. — Every man is presumed to be sane until he is shown to have become insane. {Groom v. Thomas, 2 Hagg. 434; CartwrigJit v. C, 1 Phillim. 100 ; BrooJ^s v. Barrett, 24 Mass. 98.) Then the onus is upon those who set up his will to prove that it was made in a lucid interval. Lack of free Will. The Married Women's Property Act of 1882 (45 & 46 Vict. c. 75), s. 1, renders a wife capable of "disposing by will 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." In so doing it repealed sect. 8 of 1 Yict. c. 26, which rendered a married woman unable to make a valid will, except such a will as might have been made by her before the passing of the Wills Act. e2 HQ PROBATE LAW, Undue Influence destroijs free Will. — Where a tes- tator's will is proved to liave been made under undue- influence, it is bad. It is not the will of tlie testator,, but of tbose wlio influenced him. Undue Influence c.rpJained. — Although a person has the requisite testamentary capacity, if dominion or influ- ence be obtained over him, preventing the exercise of it in making his will, his capacity is destroyed, and the will is not entitled to probate. {Mountai)i v. Bennett^ 1 Cox, Eq. C. 351.) The influence to vitiate an act must amount to force and coercion destroying free agency. It must not be the influence of affection or 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. Undue influence, or impor- tunity, is something in the nature of force or fear destroying free agency, {William v. Goude, Hagg.. E. E. 581.) Felons. — Under the Act of 1870, for the abolition of forfeiture on conviction for felony, the felon's property vests in the Crown, and, on the completion of his. sentence, or pardon, or death, it reverts to him or his legal personal representative. His will operates only on his death. His sentence expires with him, but his will remains, and it would seem that this establishes- a felon's right to make a will. WILLS, ETC. 53 Execution, Observation. — As nearly fifty years have elapsed since the Wills Act of 1837 was passed, an inquiry into the law relating to wills before that Act seems unnecessary here. Execution since 1837. — The word "execution" implies, not merely execution by the testator, but, in addition, attestation also. The statutory enactment relating to execution and attestation is as follows : — " No will shall be valid, unless it shall be in writing, and executed in manner hereinafter mentioned (that is to say), it shall be signed at the foot or end thereof by the testator, or by some person in his presence, and by his direction, 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 wit- nesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." (Wills Act, 1837, s. 9.) This section needs to be taken to pieces and examined somewhat critically. The Form. — Fii-st of all, " No iciU shall be valid, un- less," &c. The fact that the paper sought to be established is not in the ordinary form of a will does not invalidate it. Whatever the form, the paper, if testamentary in effect and duly executed, will operate as a will, though it be a deed poll, or indenture, or other docmnent. {Ilaherg- ham V. Vincent, 2 Ves. jun. 220 ; Masternian v. Maberley, 2 Hagg. 247.) A letter {Repinyton v. Holland, 2 Lee, 106), a "plan of a will" {Jfat//eics v. Warner, 4 Ves. jun. 186), " heads of a will" {Milligan, 2 Roberts. 108), a testamentary passage from a letter {Parker, 28 L. J., 51 PROBATE LAW. Prob. 91), a writing " to take effect as soon as possible after death" Qlunchj, 2 S. & T. 119; 30 L. J., Prob. 85), have all been admitted to probate. Writing. — The instrument must be in writing. The writing may be in ink, or pencil, or both, so long as it is testamentary, and duly executed. [Rymes v. Clark- son, 1 Phillim. 35.) For obvious reasons ink, if avail- able, is preferable to pencil for the purpose of writing a will. The Lavguage or Tongue. — Again, the language, whether Greek, or Hebrew, or Sanscrit, it matters not ; though, for equally obvious reasons, a will which is to be proved in England should be made in a language offering but little difficulty in its interpretation. Joint Wills are had. — There can be no joint wills. {Ilohson V. Blackhurn, 1 Add. 277.) Where there are parties to a will it may be admitted to probate as the will of both after the death of the survivor. [8traceijy Dea. & Swa. 7 ; Lovegrove, 2 S. & T. 453.) The Signature. — The section goes on to sa}^, " that the will shall be signed by the testator, or hij some other person in his presence and hy his direction.'^ The testator need not write his name ; his mark will suffice (Baker V. Denning, 8 A. & E. 97), and his hand may be guided. {Wilson v. Beddard, 12 Sim. 28). If he does write he may write a name which is not his own, if preferred. {Glover,'^. C. 553; Clark, 1 S. & T. 22; Bedding, 2 Eoberts. 339.) Acknoidedgment . 1. A testator need not write a signature to his will {ante, p. 53), but he must acknowledge it, if written %V1LLS, ETC. DO for him, and it must be made in his presence and by his direction. {Re(jaii, 1 Curt. E. 908.) 2. It is necessary, also, for it to be made or acknow- ledged by him in the presence of two or more witnesses present at the same time. (See the Act 1 Yict. c. 26, s. 9.) The Position of the Signature. — The section (9th) states, as it seems, that the will " shall be signed at the foot or end thereof." This passage did not receive sufficient attention for some time at the hands of testators, and frequently wills, in all other respects perfectly valid, came before the Court, but with the signatures in a position which by no possibility could be passed as having been signed at the foot or end. Consequently an Act was passed to explain literally the meaning of the expression. " at the foot or end." (15 Yict. e. 24, s. 1.) Effect of each Wilh Acts.— The earlier Act, 1 Yict. c. 26, s. 9, is imperative in directing that the signature shall be at the foot or end. The later one, 15 Yict. c. 24, s. 1, permits it to be placed either a)iijichcre after the irill vpoji the paj^er or 2)a2)ers containing it, or an)0)i(j the words of the attestation clause ; but the section enacts that no direction underneath the signature or inserted after it is affixed shall he carried out. " At the Foot or End" explained. — The object of the expression at the foot or end in the earlier section has been pointed out to be " to prevent a space being left between the foot or end of the will, and the signatiu'e of the testator, so as to admit of additions being made after execution." {Carneb// y. GiJ)hons, 1 Rob. 705; 6 N. C. 679.) Hence the later and explanatory section. 56 PROBATE LAW. A Will need not he continuous. — The provisions of tlie Act 1 Vict, do not require a will to be written con- tinuously. {Cordcr, 1 Eob. 671; see also under 15 Vict. Hunt V. //., 1 P. & D. 209 ; 35 L. J., Prob. 135.) T/ierc may he Blanks in a Will. — *' There are no words in the Act 1 Vict, to hinder a space or spaces being left blank in the body of the will." [Carnebij v. Gibbons, 1 Eob. 705 ; 6 N. C. 679 ; see also under 15 Vict. Hunt V. H., 1 P. & D. 209 ; 35 L. J., Prob. 135.) Attestation. — The witnesses to the testator's signature or acknowledgment shall attest and subscribe the mil in his presence. That is, they shall signify that they do actually witness the testator's part of the trans- action, and as evidence of their so doing they shall each of them sign the will in his presence. The Attestation Clause. No Form of Attestation shall be necessanj. — The prac- tice of most people is to include an attestation clause in the document, as an evidence, doubtless, of the due execution of the will ; but, though usual, and perhaps convenient and explicit, it is not actually necessary, as shown above. The Absence of the Attestation Clause. — The entire absence of an attestation clause would only necessitate extrinsic evidence, clear and satisfactory, of due execu- tion and attestation. {Boberts v. Phillips, 4 E. & P. 453.) Seamen^s Wills. — There are certain important ampli- fications and modifications of the 9th section of the AVills Act (1 Vict. c. 26, s. 9), in relation to seamen's WILLS, ETC. 57 wills, whicli it may be useful to know. These are set out in the Navy and Marine Wills Act, 28 & 29 Viet. c. 72, ss. 3, 4, 5, 6 and 7, and the sub-sections to 5 and 6. Witnesses to Wills — Executors. — " No person shall, on account of his being an executor of a will, be incom- petent to be admitted a witness to prove the execution of such will, or a witness to prove the validity or in- validity thereof." (Wills Act, 1 Vict. c. 26, s. 17 ; see also Griffit/is v. G., 2 P. & D. 303.) Legatees. — Under sect. 15 of this Act gifts to an attesting witness, or a \nie, or husband of such wit- ness, are void. {Clarl; 2 Curt. 330.) That is to say, the execution of the will is not invalidated by the over- sight of making an attesting witness a legatee, but the legacy is of no effect. (Sect. 14.) Three attesting Witnesses. — But if of three attesting witnesses one is a legatee, and the other two are not he may retain his legacy ; but, in so doin^, he ceases to be an attesting witness. The will in such a case is not affected. {Anderson v. A., 13 Eq. 385 ; see Wills Act, 1 Vict. s. 14.) Creditors. — Creditors, or their wives, or husbands, may be witnesses to a will. (1 Vict. c. 26, s. 16.) Their Interest. — Their interest goes no further than to have the deceased's will proved, and their claim paid. Revocation. — A will is revocable during the testator's lifetime, because his last wishes, either committed to writing or expressed by silence, constitute his will. Anything prior to those last wishes may be recalled to give them effect. 58 PROBATE LAW. Revocation and Alteration. — The presumption upon the irregular apj)earance of a will is manifestly twofold of revocation or of alteration. Modes of Revocation. — The various modes of revoca- tion will now be inquired into. They are all dealt with in sects. 18, 19 and 20 of the Act. Sect. 18 (Marriage). — Every will made by a man or woman s/ia/l be revoked by his or her marriage (except a will under a power of appointment) . This is an altera- tion of circumstances expressly provided for. Sect. 19 {Presumption of Revocation) . — But sect. 19 enacts " that no will shall be revoked by any presump- tion of an intention on the ground of an alteration o£ circumstances." That is to say, no other alteration of circumstances will suffice. Sect. 20 {Modes of Revocation emimerated). — No will or codicil, or any part thereof, shall be jevoked other- wise than as aforesaid {i.e., by marriage, ante, s. 18), or by another will or codicil diihj executed, or bij some writing declaring an intention to revoke the same and duly executed as a will, or by burning, or by tearing, or otherwise destroying the same by the testator or by some person in his presence, and by his direction, with the inten- tion of revoking the same. The act must be done, it should be carefully observed, by the testator, or by some person in his presence, and by his direction. Further than that, it must be done icith an intention of revoking the same. This last passage about the intention is vital to the inquiry. If the act be not done with what is called the aninius revocandi, the will remains valid, and, though destroyed, will, if reproduced, by recollection or draft {Trcvelyan v. T., 1 AVII.LS, ETC. 59- Phillim. 149 ; Sugden v. Lord St. Leonards, 1 P. D. 154), be admitted to probate. A case has already been cited in which a will made in a lucid interval, and destroyed during a fit of insanity, has been admitted. [Borlase v. B., 4 N. C. 106.) Alterations. — Alterations to have any effect, whether in the body or at the end of the will, must themselves be duly executed like the will itself. They are then valid. {Treely, 3 P. & D. 242 ; Blemtt, 5 P. D. 116.) Any alteration, after the testator's death, is bad, even though it be the result of a conversation with him. {North, 6 Jur. 564.) Caneellation. — Cancellation is not a term recognized in the Wills Act of 1837, though of general use prior to that time. Cancellation is an equivocal act, and does not now signify revocation. In order to take effect the cancellation must be made animo rerocandi [Thymine v. Stanhope, 1 Add. 63), and unless it be done with the same formalities as those employed on the execution of a will, it has no effect. {Eose, 4 N. C. 101). Lnterlineatlons and Alterations, tcJien valid after 1837. — Interlineations and alterations are invalid unless they existed in the will at the time of its execution, or, if made afterwards, unless they have been executed and attested in the mode required by the statute, or unless they have been rendered valid by the re-execution of the will, or by the subsequent execution of a codicil thereto. Proof of their Existence before Execution of Will requi- site. — "When interlineations or alterations appear in the will (unless duly executed, or recited in, or otherwise identified by, the attestation clause), an affidavit or 60 PROBATE LAW. affidavits in proof of tlieir having existed in the will hefore its execution must be filed, except when the alterations are merely verbal, or when they are of but small importance and are evidenced by the initials of the attesting witnesses. Erasures and Obliterations. — Erasures and oblitera- tions are not to prevail unless proved to have existed in the will at the time of its execution, or unless the alte- rations thereby effected in the will are duly executed and attested, or unless they have been rendered vaHd by the re-execution of the will, or by the subsequent execution of a codicil thereto. If no satisfactory evi- dence can be adduced as to the time when such erasures and obliterations were made, and the words erased or ■obliterated be not entirely effaced, but can upon inspec- tion of the paper be ascertained, they must form part of the probate. In every case of words having been erased or oblite- rated which might have been of importance, an affidavit must be required. Aj)pearance of the Paper — Marhs inferential must he explained. — If there are any vestiges of sealing-wax or wafers or other marks upon the testamentary papers, leading to the inference that a paper, memorandum, or other document has been annexed or attached to the same, they must be satisfactorily accounted for, or the production of such paper, memorandum, or other docu- ment must be required ; and, if not produced, its non- production must be accounted for. Incorporation. — When two testamentary papers by the same hand are in existence, it must be settled, prior to probate, whether the later incorporates or revokes WILLS, ETC. 61 the earlier. A will may be good by reference to some other paper, no matter what. If that paper is ascer- tained, it is as much a part of the will as if it was within the sheets, even though it is not executed. (See Haherg- ham V. Vincent, 2 Yes. jun. 208 ; Edicards, 6 N. C. 306.) Incorporation or Itcvocation. — A later testamentary paper does not work a total revocation of a prior one, unless the later expressly, or in effect, revokes the former, or unless the two are incapable of standing together. {Lcmage v. Goodban, 1 P. & D. 57.) Dependent Relative Revocation. — Where there is evi- dence of an intention to revoke a will by a later one, if that intention has not been carried into effect the former will remain precisely as it was. In other words, de- pendent relative revocation is revocation by substitution dependent on the validity of the substituted instrument. ( Winsor v. Pratt, 2 Brod. & Bing. 655.) Revocation hy a subsequent inconsistent Will. — Subse- quent wills, if consistent, give rise to the doctrine of incorporation, which has been already dealt with. If inconsistent, then, of course, revocation ensues, but a later wdll only revokes the former when inconsistent with it wholly or in part, according to the degree of inconsistency. [Lcmage v. Goodban, 1 P. & D. 57.) Revocation under a Power. — Questions arise whether a testamentary paper is an execution or revocation of a power at all ; and, if an execution of the power, whether it is valid as such. If it is doubtful whether the last will is a valid execution of a power by deed, and there are other previous testamentary papers relating to the power, the Probate Coiu't admits them all to be eon- 62 PROBATE LAW. strued by the Court of Cliancerj. That Court then proceeds to ascertain, not if the power is duly executed in the various papers before it, but which of the papers does execute it. The execution of a power cannot take place in two or more testamentary papers by the same person, executed or unexecuted, and incorporated, but it must be confined to one only. [Fenirick, 1 P. & D. 319.) Express Revocation in Writiiuj. — The Wills Act dis- tinguishes between revocation bi/ icill or codicil, and by some loriting. (Sect. 20.) A letter, testamentary in purport, duly executed as a will, and declaring an in- tention to revoke the writer's will, has been admitted to probate, as " some writing declaring an intention to revoke " under the Wills Act, and as being of a testa- mentary character. [Durance, 2 P. & D. 406.) Revocation hij Codicil. — Revocation of a codicil does not revoke the will also, unless the intention to do so be manifest or proved, and the codicil be itself duly exe- <3uted. {Black v. Johling, 1 P. & D. 690 ; Turner, 2 ibid. 403.) Revival by Codicil. — A codicil which refers in adequate terms to a revoked will revives it ; but the intention to do so must be clear. (1 Yict. c. 26, s. 22.) A future intention is not sufficient. {Thomas v. Evans, 2 East, 488.) Revocation by Implication. — Marriage, as already pointed out, is an express revocation of a testator's Avill, by the Act, but no other alteration in circumstances suffices. Hence there can be no revocation by impli- cation, as might at times have taken place prior to the Wills Act. WILLS, ETC. 63 Revocation conditional upon Revival. — Where, of two inconsistent wills, tlie earlier one is destroyed, a codicil to it purporting to revive it {Rogers v. Goodcnough., 2 S. & T. 342 ; 31 L. J., Prob. 49) will not do so, for *' it is gone — destroyed animo revocandi — the codicil cannot in effect revive that will." {Ilale v. Tokelove, 2 Hoberts. 318.) But where a codicil fails to revive an earlier destroyed will, if the intention to revoke the intermediate one be dependent upon the revival of the earlier one, revocation will not ensue. {Newton v. N.., 5 L. T., N. S. 218.) With Contingent. — A will purporting to be contin- gent upon the happening of a certain event, in other words, to be of no effect if that event does not happen, for example, contingent upon the testator's death during a period of service on the G-old Coast, is revoked by his sur\'ival. If the contingency does not take place revo- cation ensues without f ui'ther action. {Parsons v. LanoCy 1 Ves. sen. 190.) Wills Duplicate. — Wills are at times made in dupli- cate, that is, a testator may have two similar wills engrossed from the same draft. One he may keep, the other he may lodge with a friend, or at his bank, for safety. Each of these wills is a duplicate of the other. If the testator revokes the duplicate will in his posses- sion, or alters it in conformity with the Wills Act, the alteration will affect the copy not in his possession. {Onions V. Tyrcr, 1 P. Wilhams, 343.) Wills Nuncupative. — Wills nuncupative, or by word of mouth, are at times admitted to probate, but under cu'cumstances of a most pressing description, /. ?., in military and naval service (see Wills Act, 1837, s. 11), 64 PROBATE LAW. which, leaves unaltered the provisions of 29 Car. 2, c. 3, in relation to nuncupative wills. Under sect. 19 there must be three witnesses present when such a will is made, and the testator must call their attention to the fact that it is his will. Other and more minute details in reference to wills of this description will be found in the statute above mentioned. A recent Informal WilJ. — An instance of an informal but valid will, though not nuncupative, is that of the late Lord St. Vincent, 16th Lancers, who, just prior to his death, at Abu Klea in the Soudan, made a codicil to his will on January 16th, 1885, in pencil, and in the form of a letter to his mother Lady St. Vincent. ( 65 ) CHAPTER III. EXECUTORS. Executors. — Tiie next portion of the inquiry relates to executors, the persons selected by the testator to prove his will and administer his estate. JFlio may he Executors. — All persons capable of making wills may also be executors, including married ■women and infants. (See the last Married Women's Property Act ; Darke, 1 S. & T. 576.) Infant Executors. — Infant executors cannot act or take probate till they reach the age of twenty-one years, but a guardian may act for them. (38 Greo. 3, c. 87, s. 6.) Felons as Executors. — "Where an executor becomes a felon his duties devolve upon his representative under the Crown until his sentence expires. (See the Treasury Act, 33 & 34 Vict. c. 23, s. 9.) Two Kinds of Executors. — Executors are of two kinds : — 1. Executors, or those stated to be so in the will. 2. Executors according to the tenor, or those found on reading it to have been deputed to discharge the duties of an executor. 1. A Lunatic Executor. — When an executor becomes a ■lunatic the Court appoints an administrator, and usually selects the lunatic's committee. {Evans v. Tyler, 2 Robert. 132 ; 3 N. C. 29G.) U. F 66 PROBATE LAW. 2. If without specifically appointing A. B. liis execu- tor, the testator directs him to do certain things which constitute the duties of an executor, as, for instance, to discharge all lawful demands against his loill and codicils {Grant v. Leslie, 3 Phillim. 119), to pay debts and general expenses, and expenses of proving a tcill {Fry, 1 Hagg. 80) ; in short, if he be directed to get in the estate, to pay the debts due from the estate, and to discharge the legacies {Fraser, 2 P. & D. 186), he is executor according to the tenor, no matter how these duties are expressed. Limited Executorships. — Executorships of both kinds may be limited to certain duties, as to administer a testator's property in a particular place. {Adamson, 3 P. & D. 253.) Legatees. — Executors have certain specified duties to perform, but where the testator leaves property without directing any duties to be performed, the person to whom he leaves it becomes a legatee. {Oliphant, 1 S. & T. 525.) Conditional Executorships. — An executor may be ap- pointed conditionally, e. r/., upon his proving the will within three months after the testator's death. {Day, 7 N. C. 553.) Effect of the Appointment. — Where in two or more consistent wills different executors are appointed all may take probate. {Morgan, 1 P. & D. 323.) Though two wills are inconsistent in part, but the appointment of executors is not so, the second will does not revoke the appointment in the first. The mere appointment of executors entitles a paper to probate. {Lcese, 31 L. J., Prob. 169 ; 2 S. & T. 442.) EXECUTOKS. 67 The Chain of Representation. — " The power of an executor is founded upon the special confidence and actual appointment of the deceased, and such executor is, therefore, allowed to transmit that power to another in whom he has equal confidence (2 Blackstone, Com. 506) ; and the executor of a sole executor, or of a sole surviving executor, represents the original testator's estate, provided his own testator has proved the will. And by this connection (what is called) the chain of representation may be carried on indefinitely." (Went- worth on Executors, p. 461, 14th ed.) The surviving Executor onhj can transmit the Chain of Representation. — Where there are two executors, and one makes a will naming executors and dies, and the other dies after him intestate, the executor of the first deceased executor shall not be executor to the first tes- tator. The executorship is settled in the other and surviving executor. ("Wentworth on Executors, 14th ed., p. 215 ; Smith, 3 Cm-t. 31.) An Executor cannot assign his Office. — His power is only such as specified in the will. {Adamson, 3 P. & D. 253.) The testator has confidence in him, but not, unless so stated, in any nominee he may select. Executor failing to Prove the Will. — If the executor does not prove the will, the chain of representation is not commenced — with one exception, that of an exe- cutor's agent under letters of attorney, who by means of them represents the executor. Distinction between Probate and Administration — An Executor only can Prove. — No one can 2^rovc a ^\'ill but the executor, and after him his executor, to whom by first proving he transmits, as seen, the chain of repre- f2 68 PROBATE LAW. sentation. By the expression to jirove is signified to obtain probate. Administration with t/ie Will annexed. — If the exe- cutor does not prove, then the executorship is deter- mined, and the duties which were to have been per- formed by the executor devolve upon someone who in law is termed an administrator, /. c, a person who ad- ministers the testator's estate according to the provisions of his will. This form of administration is called administration with the will annexed, to distinguish it from ad)ninistration under intestacy, which will be dealt with later on. Renunciation. — An executor who does not, volun- tarily, prove the will, may be called upon, or cited (see Citations), to do so (C. P. A. 1857, s. 23) by someone who wishes to have the estate administered under the will. The executor must then accept or refuse probate, and his decision, once made, is final. {Ibid. s. 79.) His failure to appear to the citation is treated as a tacit renunciation of his rights, and they thereupon cease. The Court then appoints an administrator, selected by it according to the circumstances of the case. (0. P. A. 1858, s. 16.) Retractation. — An executor may renounce and still be at liberty to retract his renunciation, provided the grant of administration with the will annexed has not yet passed the seal of the Court. {Uayicard v. Dede^ 2 Lee, 333 ; McDonnell v. Prendergast, 3 Hagg. 212.) Tlie Executor'' s Rights. — The executor's rights on the death of the testator are complete, with one exception : he cannot bring an action as executor , without producing the probate as evidence of his title to sue. ( Jnils V. Rich, 2 Atk. 285.) EXECUTORS. 69 Intermeddling. — An executor who commences to manage, or perhaps mismanage, the estate, and does not continue to act, is said to intermeddle, and he can be compelled to take probate. {Pcnichard v. JFerjer, 1 Phillim. 212.) Acts of Neccssit)/. — But acts of necessity do not bind him, and even if he has shown himself wilKng to accept he may be dismissed by the Court in aid of justice. {Ibid., and see Long v. S^/mes, 3 Hagg. 774.) Acts of Executors constituting Liability to take Probate. — Whatever an executor does showing an intention to take on himself the executorship amounts to an admi- nistration ; and whatever acts will make a man liable as an executor de son tort will be deemed in the executor " an election of the executorship." (Bacon's Abr. Exe- cutors [E.] 13.) Penalties for acting uitJwut Probate. — An executor administering a testator's estate, and omitting to obtain probate for six months, is liable to a penalty of 100/. and ten per cent, on the duty payable upon it. (55 Geo. 3, c. 184, s. 37, repealed in part by 32 & 33 Yict. 0. 14, s. 12 ; 33 & 34 Yict. c. 99 ; 35 & 36 Yict. c. 93, s. 4; Stat. Law Eevision Acts, 1873 and 1874.) Executors de son tort. — There are also other persons who, though not named executors, become in law executors de son tort if they intermeddle witli the deceased's estate in any way from which it might be presumed that they were his executors. (See Edwards V. Ilarben, 2 T. E. 597.) With them, however, the Probate Division has nothino- to do. 70 PROBATE LAW. ADMINISTRATION. Administration. — The next matter to be inquired into is that of administration. Administration is of two kinds : — 1. Administration with the will annexed. 2. Administration under an intestacy. 1. Administration with the Will annexed. — A grant of administration, in this form, is made to a person nomi- nated by the Court to administer an estate, according to the terms of the will, when the will appoints no executor, or where the executor fails or declines to act, and either a legatee, or, him failing, a creditor, or other person, applies for the grant. 2. Administration under an Intestacy. — Administration under intestacy, stated broadly, is a grant to some person entitled to a portion of the deceased's estate in distribution and in order of priority of right ; /. e. to the immediate or more remote next of kin, or, him failing, to a creditor, or, lastly, to a nominee of the Court. Administrator's Rights, ivhcn ceasing. — The rights of an administrator, unlike those of an executor, neces- sarily cease upon his death. Forms of Grants — The various descriptions of grants of administration usually made apply to testacies and intestacies alike. The forms they take are not so various as the objects in view when they are sought and made. The procedure in relation to each and all of them is almost similar, with the exception of the distinct forms of documents requisite, and the steps they point out. The applicant may be assisted by the table below. The more usual forms are as follows : — ADMINISTRATION. 71 Durante minore cetate {Haggcr, 3 Sw. & Tr. 65) ; (as by a guardian, limited to majority, but general or limited as regards the estate.) Durante absentia {PalUson v. Orel, Bunb. Excli. 166) ; (by an agent for the use and benefit of and limited to the return of his principal, otherwise general or limited.) De bonis non [Southmead, 3 Curt. 29) ; (general or limited, of an estate administered in part.) Cceterorum {Boxley v. Stubington, 2 Lee, 542, testacy) ; (to administer that portion of an estate to which no grant has hitherto applied.) Ad coUigenda bona [Clarhngton, 2 Sw. & Tr. 382) ; (as to collect in and administer a perishable estate.) Ad litem {Chanter, 1 Hob. 271) ; (as to substantiate proceedings in chancery, and limited thereto.) Pendente lite {Sutton v. Smith, 1 Lee, 209) ; (limited to the conclusion of legal proceedings.) Cessate {Abbott v. A., 2 Phillim. 578) ; (as to revive the grant to a surviving executor on the decease of his co- executor who has acted.) " For tlie use and benefit of the lunatic " {Southmead, 3 Curt. 29) ; (to his committee, and limited to his recovery, otherwise general or limited.) Different Forms u-hich may arise. — Administration under either head may be general, — i. e., for the com- plete management of the estate ; it may be to continue it, for a limited purpose, as for the execution of certain duties under a will. Stated shortly, it may be either general, limited or special as to the estate, period or purpose to which the grant relates. Administration with the Will annexed. — An executor not acting, the duty of seeing that the testator's wishes are carried out devolves upon the Court. Pou-er of the Court. — The Court has in special cases unlimited power in the matter of appointing an admin- istrator, but it is most careful to protect the interests of all parties in doing so. (C. P. A, 1857, s. 73.) The Princijyle of the Grant. — Those most likely to dis- charge the office with care and diligence are selected. 72 PEOBATE LAW. The grant is usually made to those liaving the greatest interest under the will or right under an intestacy, and therefore the greatest object in a fau* administration of the estate. W/io is first selected. — Under a will a residuary legatee is generally selected, because he, having only the residue after all claims upon the estate are satisfied, is certain to administer it with care, that his own share may be as much as possible. {Repington v. Holland, 2 Lee, 254.) Other legatees at times obtain the grant, but usually all having greater interest must first be cited. Priority of Claim. — Under a will interest is the ruling indication of priority of claim, and in administration under an intestacy right is the guide, and it is deter- mined by priority of relationship. The HushamVs Rights. — A husband has the first right to administer his wife's estate, provided he survives her ; and in the absence of proof of survival, the grant goes, to her next of kin. [Sehcyu, 3 Hagg. 784 ; Taylor v. Di2-)lock, 2 Phillim. 267.) The Widow. — A widow usually administers her hus- band's estate unless there are prevailing objections. {Stretch V. Pynn, 1 Lee, 30.) Commorientes. — Where the deaths of husband and wife have taken place at about the same time, viz. where there is no evidence that one survived the other, the next of kin of each is entitled to administer their estates separately. [Wheeler, 31 L. J., Prob. 40.) Onus of proving Survival. — The onus of proving sur- vival lies upon the representatives of the deceased for whom it is claimed, and failing that the other deceased's ADMINISTRATION. 73- next of kin takes the grant to his estate. {SaltertJmaite V. PoivcU, 1 Curt. 705.) Next of Kin. — Husband or wife failing, the grantee is usually one of the next of kin according to priority. BanJcruptcy of Applicant. — The bankruptcy of the applicant is a material question for the consideration of the Coiu-t. {Bell v. Tinnisivood, 2 Phillim. 22.) Priori petenti. — Where there are two applicants of equal right, the grant usually goes to the one who applies first. {Cordeux v. Trasler, 3-1 L. J., Prob. 127.) Limited Grants. — If the estate is not fully adminis- tered by the executor or administrator with a will, or by the administrator under an intestacy, the next grant is called a grant de bonis nan administratis. A grant may be limited also to a special purpose in relation to the deceased's estate. Tabic of Succession under Intestacy. — The following shows the order in which the intestate's relatives rank as regards priority of claim to administer his estate. 1 . Husband or wife ; 2. Child or children ; 3. Grandchild or grandchildren ; 4. Grreat grandchildren ; 5. Father; 6. Mother; 7. Brothers and sisters ; 8. Grandfathers or grandmothers ; 9. Nephews and nieces, uncles, aunts, great grand- fathers or great grandmothers ; 10. Great nephews, great nieces, &c., of whom all in an equal degree are equally entitled. 74 PROBATE LAW. Sub-division of an Intestate^s Estate. — Wliere an in- testate's cliild predeceases liis motlier, without widow or cliildren, eacli surviving cliild of the intestate shares the deceased child's share equally with the mother jjhall be costs in the cause." (Ord. LXV. r. 3.) " 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, liabilities, and effect as heretofore," (4 C. B.) These rules suggest the order in which questions of costs present themselves. Grenerally, an executor may take his costs of probate out of the estate ; also, a legatee loco executoris may, as administrator, charge for the necessary costs of probate. {Sutton V. Brax, 2 Phillim. 323.) Testator^s crqxtciti/ douhtfid. — Where the testator's capacity is doubtful, the costs of propounding his will come out of the estate, whether the will is established or set aside. It is proper that the will should be pro- pounded and the doubt cleared up, and of course at the cost of the estate. {Bougliton v. Knight^ 3 P. & I). 77.) The Executor a Liubilitics. — An executor will not get his costs out of the estate where he has not exercised reasonable care in ascertaining if the litigation was war- ranted by the facts of the case. {Dean v. liassel/, 3 Phillim. 334.) Next of Kiii^s Costs.— ^ 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 D. I 114 PROBATE LAW. will annexed, upon proof of a will in solemn form of law, shall continue to possess the same rights and privi- leges, and be subject to the same liabilities with respect to costs, as heretofore." (5 C. B.) A next of kin is entitled to raise the questions under the Wills Act (sect. 9) of due execution and capacity, and is not liable for costs if he calls no witnesses ; nor, if he does call them, upon reasonable grounds for so doing. {Summerell v. Clements, 3 S. & T. 35.) Notice as to Costs. — A conditional notice of intention to cross-examine only the attesting witnesses protects the parties opposing a will from costs, under Ord. XXI. r. 18 (1883). In such a case the only pleas admissible with the notice are traverses of the allegation raised in obedience to the Wills Act (sect. 9). Creditor's Costs. — A creditor who is administrator may oppose a will without liability to costs. [Dahhs v. Chisman, 1 Phillim. IGO, n.) Interveners. — " 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 regis- trars, obtained by order on summons, subject to the same limitations and the same rules with respect to costs as heretofore." (6 C. B.) The intervener's privileges and liabilities are similar to those of other defendants. Where he does not cause costs he will not have to pay them ; but where he does not justify his opposition, he will have to pay his own costs and perhaps those of the plaintiff. The Keir-at-Law. — The heir-at-law is liable to costs to the same extent as the next of kin. {Fijson v. Wes~ trap, 1 S. & T. 279.) CONTENTIOUS PROCEEDINGS. 115 Costs; genemUij, — The principle wliicli always guides the Coui'fc in giving costs out of the estate is that the party was led into the contest by the state in which the deceased left his papers. {HiUam v. Walker, 1 Hagg. 74.) The residue has to bear the costs when they are ordered to come out of the estate. In all other contentious matters the rules applying to all actions indiscriminately apply to those in probate also. i2 THE INDEX DIVORCE. Absolute bars, IG. Access and custody, 29. grounds of decision, 29. intervention, 30. maintenance, 29. orders, 30. Acts on petition, 33. Adultery, 11. bigamy ■with, 12. conduct conducing to, 12. connivance at, 17. cruelty and, 12. desertion and, 14. discretionary bar, wlien, 19. incestuous, 11. wilful neglect conducing to, 22. Affidavit, evidence by, 40. service of citation, 37. verifying, 35. Affinity, 6, 23. Age, want of, void marriages, 24. Alimony, 29, 44. amount, 29. Allegiance, 3. Amalgamation of Probate, Divorce, and Admiralty Courts, 2. Amendments, 38. Answer, 38. Appeals, 43. summons, 40. Appearance, 37. and no answer, 3S. late in suit, 37. 118 THE INDEX — DIVORCE. Ai:>pearance — continued. time for, 37. imder protest, 38. Attachments, 45. Banns, marriage by, 7. Bars, divorce, 16. Bigamy, 4. civil and criminal, 4. witli adultery, 12. Bills in divorce, 1. Camera cases, 40. Capable parties, marriage, 6. Certificate, marriage by, 8. Choice, domicile of, 10. Citations, 36. mislaying, 37. return of, 36. Civil disabilities, 6. Collusion, 18. and connivance, denial of, 35. Commission, evidence on, 40. Communicating cutaneous disease, 14. Condonation, 17. and connivance, distinction between, 18. by husband and wife, 18. Conduct conducing to adultery, 22. Conjugal rights, restitution of, 26. Connivance and condonation, distinction between, 18. Connivance at adultery, 17. denial of, 35. Consanguinity, 6, 23. Consent of parents to marriage, 8. Constructive cruelty, 14. Co-respondents, 31. damages against, 31. Costs, 46. intervention, 19. ' THE INDEX — DIVORCE. 119 Criminal bigamy, 4. Cross suits, divorce, 34. Cruelty, 13. and adiiltery, 12. constructive, 14. delirium, 14. isolated, 21. kinds of, 13. misconduct resulting from, 21. spitting, 14. wife's violence, 14. 'Custodj^ and access, 29. grounds of decision as to, 29. interveners, 30. and maintenance, 29. orders of, are temporary, 30. Cutaneous disease, communicating, 14. Damages, co-respondents, 31. amount, 31. application of, 31. assessment of, 31. Declarations of legitimacy, 32. Decree, the, 42. absolute, 44. Deeds of separation, 15. Default, proceedings by, 38. Defences, dissolution of marriage, 16. jactitation of marriage, 28. judicial separation, 25. nullity of marriage, 25. restitution, 27. Delay, eifcct of, 20. Delirium, crueltj', 14. Demurrers, 39. bearing, 40. Denial, of collusion, 35. of connivance, 35. of olfences cbarged, 17. Desertion, 14, 15. adultery witb, 14. 120 THE INDEX — DIYORC E. Desertion — continued. divorce, 15. excusable, wlion, 15. excuse reasonable without, 14, 2,". judicial separation, 15. Disabilities, civil, G. Discretionary bars, adultery, 19. Dissolution of marriage, 11. absolute bars, 10. discretionary bars, 16. defences, 1(3. husband's grounds for, 11. ■wife's grounds for, 11. Divorce, bnis, 1. court established, 1. jurisdiction, 1. limit of, 3. Domicile, effect of, 10. law of, 9. of choice, 10. husband, 10. law, 10. origin, 10. wife, 10. English marriages, G. and foreign, 5. Establishment of Divorce Court, 1 . Evidence, 40. affidavits, 40. commissions, 40. parties may give, 41. Foreign marriages, proof of, 8. Forma pauperis, suing in, 34. Forms of marriage, 7. Handwriting, wills, 41. Hearing, 40. and trial, 40. demurrers, 40. Husband, condonation hj, 18. THE INDEX — DIVORCE. 121 nusband — continued. domicile of, 10. grounds for dissolution of marriage, 11. Identit5% evidence of, practice, 41. Impotence, 24. evidence, 24. Incestuous adultery, 11. Injuria volenti non fit, 17. Insanity, nulHtj' of marriage, 23. Interveners, 19. access and custody, 36. Intervention costs, 19. Isolated cruelty, 21. Issue, joinder of, 39. Jactitation of marriage, 28. Joinder of issue, 39. Judicial separation, 25. defences, 25. desertion, 15. Jurisdiction, divorce, 1. restitution of marriage, 28. Jury, questions for, 39. Kinds of cruelty, 13. Law of domicile, 10. overrides law of place of marriage, 9. Legitimacy, declarations of, 32. Lex loci contractus, 9. Licenses, marriage, 7, 8. Limit of divorce jurisdiction, 3. Locus delicti, 4. Lunatic suitors, 34. Maintenance, access, and custodj', 31. Marriage, 5. bj' banns, 7. by licence, 7. certificate of, 8. dissolution of, 1 1 . 122 THE INDEX DIVORCE. Marriage — continued, English, 6. foreign, 5. proof, 8. form of, 7. jactitation of, 7, 28. minors, 6. nullity of, 22. defences, 25. place of, 7. previous, 6. proof of, 41, restitution, 26. void, 22. _ public policy, 23. voidable, 24. Matrimonial matters, 2. Matters matrimonial, 2. Minors, marriage of, 6. Misconduct, cruelty resulting from, 21. Mislaying citation, 37. Mode of trial, 39. Motions, 45. Neglect, wilful, conducing to adultery, 22. New trial and hearing, 42. Non-appearance, 37, 38. Nullity of marriage, 22. defences, 25. insanity, 23. Offences, denial of, 17. Oral evidence, 40, Orders, access and custody, 30. Origin, domicile of, 10. Parents, consent of, 8. Particulars, 39. Parties capable, G. evidence of, 41. THE INDEX — DIVORCE. Petition, 34. action, 33. re-service of, 35. ■withdrawal of, 35. Photographs, practice, 42. Place of marriage, 7. Power of Court over children, 31. Practice, alimony, 44. amendments, 38. answer, the, 38. appeals, &c., 44. aj^iDearance, 37. late, 37. no answer, 38. time, 37. under protest, 38. attachments, 45. camera cases, 40. citations, 3G. commission, 40. costs, 46. cross suits, 34. decrees, 42. absolute, 44. demurrers, 39. evidence, 41. handwriting, 41. hearing and trial, 40. hearing demurrers, 40. identity, 41. joinder of issue, 39. lunatic suing, 34. new trial, 42. non-appearance, 37, 38. maintenance, 46. mislajing citation, 37. mode of trial, 39. motions, 45. particulars, 39. petition, 34. re-service, 35. photographs, 42. priecipes, service, 36. proceedings by default, 38. proof of marriage, 41. questions for jury, 39. reply, the, 39. return of citation, 36. 123 124 THE IXDEX — DIVORCE, Practice — continued. restitution, demand for, 35. service of affidavit, 37. settlements, 46. substituted service, 36. suing forma pauj)eris, 34. summonses, 45. appeals, 46. verifying- affidavit, 35. withdra-v^-al of petition, 35. Praecipes, 36. service of, 36. Previous marriage, 6. Proceedings by default, 38. Prohibited relationship, 6. Proof, foreign marriages, 8. marriage, 41. rape, 12. sodomy, 12. Protection orders, 32, Protest, appearance under, 38. Public policy, void marriages, 23. Questions for jury, 39. Eape, 12. Eeasonable excuse, desertion -without, 14, 25. Registrar, marriage before, 8. Relationship, prohibited, 6. Reply, 39. Re-service of petition, 35. Restitution of conjugal rights, 26. jurisdiction of Court, 28. maintenance, 26. object of Court, 27. petitioner, 27. po-R'er of Court over children, 31. Return of citation, 36. defences to suit for, 27. demand for, 35. THE INDEX — DIVORCE. 125 Separation, deeds of, 15. judicial, 2o. defences, 25. desertion, 15. Service, affidavit of, 37. prEecipes, 3G. substituted, 36. Settlements, 32, 4G. Sodomy, 12. proof, 12. Spitting, cruelty, 14. Substituted service, 36. Summonses, 45. appeals, 46. Time for appearance, 37. Trial and hearing, 40. Trial, mode of, 49. Venereal disease, communicating, 14. Verifying affidavit, 35. Violence of wife, cruelty, 14. Void marriages, 22. public policy, 23. want of age, 24. Voidable marriages, 24. Volenti non fit injuria, 17. Wife, condonation by, 18. domicile of, 10. grounds for dissolution of marriage, 11. violence of, cruelty, 14. Wilful neglect conducing to adultery, 22. Withdrawal of petition, 35. 126 THE INDEX — PROBATE. PROBATE. Acknowledgment, wills, 54: Actions in probate, 104. costs, 112. default, 109. jDrocedure, 106. ■where tried, 105. Acts of necessity by executors, 69. Administration, 70. affidavit of amount and debts, 74, 75. bond, 83. coramorientes, 72. creditors, to, 74. foreigners, to, 77. intestacy, under, 70. joint, 74. probate and, distinction between, 67. property in Ireland and Scotland, SI. widows, to, 72. will annexed, with, 68, 70. Administrators, 70. pendente lite, 102. rights of, 70. Advertisements, 88. Affidavits, 74. amount and date of death, 74, 75. domicile, of, 77. property, of, 77. probate, 95. verifying, 106. alterations, as to, 88. Ambiguities in wills, 111. Animus testandi, 50. Appeals, motions, 89. County Court, 105. Appearance, 106. of paper, wills, 60. to a subpoena, 94. Applicant, bankruptcy of, administration, 73. THE INDEX PROBATE. 127 Assign, an executor cannot, G7. Attaclinients, costs of, 100. Debtors' Act, 100. Attestation clause, 56. seamen's mils, 56. wills, 56. Attesting witnesses, 57. At tlie foot or end, 55. Audience, summons and motion, 92. Bankrujjtcy of apjilicant, probate, 73. Bastards, citing the Queen's Proctor, 81. Blanks in a will, 56. Bond, administration, 83. Coeterorum grants, 82. Cancellation, revocation, 59. Cases of doubt, motions, 50. Caveat, 96. citation must precede, 101. rules, 90. warning to, 97. Chain of representation, 67. Citation, 100. consent obviates, 102. caveat must precede, 101. interest precedes, 100. Citing beir-at-law, 102, 107. Claim, revocation, 108. statement of, delivery of, 108. Codicil, revival by, 62. revocation by, 62. Common form, revocation of grant in, 84. Commorientes, administration, 72. in'ooi of survival, 72. Conditional executorsbip, 66. Consent, citations, 102. 128 THE INDEX PROBATE. Contentious, motions, 90. proceedings, 104. Contingent wills, 63. Costs, actions, probate, 109, 112. attacliments, 100. creditors, 114. heir-at-law, 114. next of kin, 113. notice as to, 114. County Court appeals, 105. jurisdiction, 48, IOj. contentious business, 83. new trials, 112. Creditors, administration to, 74. costs, 114. grants, when ejected from, To. interest of, 57. motions on, 88. rights of, 107. witnesses, 57, 111. Death, presumption of, 88. Debtors' Act, attachment imder, 100. Default, 109. Dependent relative revocation, Gl. De son tort, executors, (39. Destroyed wills, 112. Discovery, 110. Disputed wills, 99. Distribution, intestacy, 74. Domicile, affidavit of, 77. Doubtful capacity of testator, 115. cases, motions, 50, 85. rules, 85. Duplicate wills, G3. Erasures, wills, GO. Execution, 53. THE INDEX — PROBATE. 129 Executors, acts of necessity do not bind, 69. appointment, eifect of, 66. assi,G;n, cannot, 67. chain of representation, 67. conditional, 66. de son tort, 69. felons, 65. infants, 65. liabilities of, 69, 113. limited, 66. lunatics, 65. penalties, 69. rigbts of, 68. tenor, according to, 65. "witnesses, as, 57. wills, may not dispute, 107. not proving, effect, 67. • Felons, 52. executors, as, 65. rights of, 87. Foreign grants, 78. Foreigners, administration to, 77. succession to, 77. wills, 76. Forms of grants, 70. Free will, lack of, 51. General grants, 88. Grants, cfeterorum, 82. creditors, when ejected from, 75. de novo, 89. foreign, 78. forms of, 70. general, 88. guardians, 83. issue of, 102. limited, 73. lost, 85. notice of application, 81. principle on which made, 71. priori petenti, 73. revocation of, 85, 89. D. K 130 THE INDEX — PROBATE. Grants — cordin ued. save and except, 82. special powers under, 89. Statute of Limitations, 75. supplementary, 83. temporary, 89. treasury, 87. wlio first selected, 71. Guardians, grants to, 83. Hearing, 40. summons and motion, 92. Heirs-at-law, 97. citing, 102, 107. costs, 114. Husband's rights, 71. Implication, revocation by, 62. Inconsistent wills, 61. Incorporation, 60. Indorsement of writ, 106. Infants as executors, 65. Insanity, 60. proof, 50. Inspection, 110. Interest, causes, 108. citation must precede, 101. creditors, 57. Interlineation, 59. Intermeddling, 69. Interveners, 106. Intestacy, administration under, 70. distribution, 74. unintentional, 79. Intestates, domiciled abroad, 76. succession to, 73. Issue of grant, 102. THE INDEX — PROBATE. 131 Joint administration, 74. Joint wills, 54. Jurisdiction, probate, 48. County Court, lOo. Lack of free will, 50. Latent ambiguities. 111. Legatees, 66. as witnesses, 57. Liabilities of executors, 113. to take probate, 69. Limited executors, 66. grants to, 73. Lodging caveats, 96. Lost grants, 85. Lost wills, 87. proof, 88. Lucid intervals, 50. Lunatic executors, 65. Marking wills, 81. Marriage, revocation, effect of, will, 58. Modes of revocation, 58. Motions, 85. appeals, 89. cases of doubt, 50, So. contentious, 90. creditors, 88. bearing, 99. limited grants, 88. testamentary papers, 95. New trial, 112. County Court, in, 112. Next of kin costs, 113. Non-contentious motion, 85. k2 132 THE INDEX — PRORATE. Notice as to costs, 114. Nuncupative wills, 63. Obliteration, wills, 60. Origin of Probate Division, 48. Original limited grants, 82. Parties, 106. cited, suits, 102. Patent ambiguities, 111. Penalties, executors, 69. Personalty free from duty, 78. in Scotland and Ireland, 81. Place of trial, 105. Pleas in probate, 109. Power, revocation under, 61. Presumption of death, 88. Priority of claim, grants, 71. Priori petonti, grants, 73. Probate actions, 104. administration and, distinction between, 67. Probate, affidavits in, 95. business, 48, 49. common form, what, 80. bow distinguished from probate in solemn form, 80. division, origin of, 48. jurisdiction, County Courts, 48. liability to take, when, 69. jiersonalty free from duty, 78. pleas in, 108. registries, 57. Scotch and Irish, 78. solemn form, 104. realty, 79. Procedure, actions, 106. Production, of papers testamentary, 93. of wills, 93. THE INDEX — PROBATE. 133 Proof of insanity, 50. solemn form, 107. Queen's Proctor citing, bastards, 81. Eealty, suits, 99. wills of, 79. proof, in solemn form, 79. Receivers pendente lite, 102. Registrars powers of, 93. Registries, probate, 49. Eelative dependent, revocation, 61. Eenunciation, 08. Representation, change of, 67. Retractation, 68. Revival by codicil, 62. Revocation, 57. cancellation, 59. causes of, 84. claim for, 108. codicil, 02. dependent relative, 61. grants, 89. in common form, of, 84. implication, 62. marriage, by, 58. modes of, 58. power, under a, 61. rules as to, 85. subsequent will, by, 61. writing, by, 62. Rigbts, of administrators, 70. of creditors, 107. of executors, 68. Rules, appearance to subpoena, 94. revocation and alteration, 85. warnings, 98. 134 THE INDEX PROBATE. Seamen's -wills, attestation, 56. Scotch and Irish probate, 78. Scripts, 108. Solemn form, probate in, 10-4. and common form, distinction, 80. evidence, 80. proof, 107. realty, probate, 79. Soundness of mind, 50. Special powers, grants, 89. Statement of claim, 100. Statute of Limitations, 75. Subpoenas, 93. appearance to rules, 94. Succession, foreigners, 77. table, intestacy, 73. Suits, parties cited, 102. realty, 99. Summonses, 90. audience, 92. and hearing, 92. Supplementary grants, 83. Temporary grants, 89. Tenor, executors according to, 65. Terms, interpretation of, 104. Testamentary, persons lacking, discretion, 50. papers, production, motion for, 95. Testator and intestate domiciled abroad, 76. Testator's capacity doubtful, 113. Treasury grants, 87. Trial, 110. new, 112. place of, 105. Undue influence, 52. Unintentional intestacy, 79. THE INDEX — PROBATE. 135 Verifying affidavit, 106. Voluntary probate registries, 50. Warning, the, 97. apjiearanco to, 98. caveats, 97. non-appearance to, 99. rules, 98, 99. Wills, acknowledgment, 54. Act, effect of, bo. ambiguities in. 111. annexed, administration with, 70 administrators, 68. appearance of paper, 60. marks, 60. attestation of, 56. blanks in, 5G. blind men's, 50. contingent, 63. deaf and dumb men's, 58. delivery of, 112. disputed, 99. duplicate, 63. erasures in, 60. executors may not dispute, 107. not proving, 67. form of, 53. foreigners, 76. idiots, 50. inconsistent, 61. joint, 54. language of, 54. lost, 87. proof, 88. lunatics, 50. marking, 81. nuncupative, 63. obliteration, 60. production of, 93. realty, of, 79. signature to, 54. subsequent, revocation by, 61. ■who may make, 50. withhokliug, 93. "witnesses to, 57, 111. ■writing, must be in, 54. 136 THE INDEX — PROBATE. Withholding wills, 93. Witnesses, creditors, 111. executors, 110. gifts to, 110. legatees as, 57. wills, 57, 111. Writ, 106. indorsement, 106, PEINTBD BY 0. F, EOWOETn, GBEAT NEW STEEET, FETTEE LANE, E.G. Reeves & Turner, 100, Chancery Lane and Carey Street, W.C. The Winding-Tip of Companies by the Court : containing the Companies (Winding-up) Act, 1890, and the Cases thereon; the sections of Part IV. and other Parts of the Companies Act, 1862, relating to Winding-up by the Com-t ; the Companies (Winding-up) Rules and Forms, 1890 and 1891 ; section 10 of the Judicature Act, 1875; the Preferential Payments in Bank- ruptcy Act, 1888 ; the Directors' Liability Act, 1890, and the Orders of the Lord Chancellor and Board of Trade : with Explanatory Notes and References to the Cases and Practice in Bankruptcy. By SIDNEY WOOLF, of the Middle Temple, Esq., one of Her Majesty's Counsel, Joint Author of "The Law and Practice of Compensation:" assisted by RICHARD RINGWOOD, Esq., M.A., of the Middle Temple, Barrister- at -Law, Author of "The Principles of Bank- ruptcy," and Editor of "Hazlitt and Ringwood- on Bankruptcy." Demi/ Evo. 1891. FricelQs. 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