BOOK THE FOURTH. OF PROBATE. CHAPTER THE FIRST. OF THE NECESSITY OF OBTAINING PROBATE IN THE ECCLE- SECTION I. The Will must be proved in the Ecclesiastical Court. It appears to have been a subject of much controversy, The Spiritual Court is the only Court in which the validity of a Will of per ⚫ established or whether the probate of Wills was originally a matter of exclusive ecclesiastical jurisdiction (a). But whatever may have been the case in earlier times, it is certain that, at this day, the Ecclesiastical Court is the only court, in which, except by special prescription, the validity of Wills of personalty, or of any testamentary paper whatever relating to personalty, sonalty can be can be established or disputed (b). Equity indeed considers disputed. an executor as trustee for the legatees in respect to their legacies, and, in certain cases, as trustee for the next of kin of the undisposed surplus: and as all trusts are the peculiar objects of equitable cognizance, courts of Equity will compel the executor to perform these his testamentary trusts with (a) Bac. Abr. Exors. (E.) 1. Dyke v. Walford, 5 Moo. P. C. 434, S. C. 6 Notes of Cas. 309. (b) Fonblanq. Treat. on Eq. Pt. 2, c. 1, s. 1, note (a). Bac. Abr. Exors. (E.) 1. Post, Pt. 1. Bk. v. Ch. 1. Gascoyne v. Chandler, 2 Courts of equity are courts of construction of Wills of personalty. Prescriptive jurisdiction of some lords of manors to grant probate. propriety. Hence, although in those courts, as well as in courts of law, the seal of the Ecclesiastical Court is conclusive evidence of the factum of a Will of personal property (c), an equitable jurisdiction has arisen of construing the Will, in order to enforce a proper performance of the trusts of the executor. The courts of equity are accordingly sometimes called Courts of Construction, in contradistinction to the Spiritual, which, although they also are courts of construction, are the only courts of Probate. Although it is regularly true, as above stated, that at present the Spiritual Court is the only one that hath jurisdiction in the probate of Wills; yet from this general rule must be excepted all Courts Baron that have had probate of Wills time out of mind, and have always continued that usage (d). Such a prescription exists in the Manor of Mansfield; and also in the Manors of Cowley and Caversham, in Oxfordshire, the courts of which the author of Wentworth's Office of an Executor, (supposed to be Mr. Justice Doddridge,) says that he himself kept (e). This franchise had probably been granted to the lords of such manors, before the crown invested the prelates generally with this branch of the prerogative (ƒ). The consequence of this exclusive ecclesiastical jurisdiction is, that an executor cannot assert or rely on his right in any other court, without showing that he has previously established it in the Spiritual Court (g): the usual proof of (c) See post, Pt. 1. Bk. VI. Ch. 1. (d) Bac. Abr. tit. Executors, (E.) 6 Swinb. Pt. 6, s. 11, pl. 3. (e) P. 100, 14th edit. Godolph. Pt. 1, c. 20, s. 1. By custom, also, the probate of Wills of burgesses belongs to the mayors of some boroughs, in respect of lands devisable within the same; yet as to personal property, the Will must be proved before the Ordinary: Bac. Abr. Executors, (E.) 7. (f) See 2 Black. Com. 494. This jurisdiction can only be claimed by cannot assert or rely on his title in the Temporal Courts, without the production of the pro bate of the Ordinary: which is, the production of a copy of the Will by which he is The executor appointed, certified under the seal of the Ordinary. This is usually called the probate, or the letters testamentary (h). In other words, nothing but the probate, (or letters of administration with the Will annexed, when no executor is therein appointed, or the appointment of executor fails,) or other proof tantamount thereto of the admission of the Will in the Spiritual Court, is legal evidence of the Will in any question respecting personalty (i). The Will of a deceased Sovereign of the realm is no exception to this rule, notwithstanding (as it has already appeared (k),) no probate of such a Will can be granted by the Spiritual Court (1). The probate is, however, merely operative as the authenticated evidence, and not at all as the foundation, of the executor's title: for he derives all his interest from the Will itself, and the property of the deceased vests in him from the moment of the testator's death (m). Hence the probate, when produced, is said to have relation to the time of the testator's death (n). Wentw. Off. Ex. 83, 14th edition. (h) The "letters testamentary" incorporate by necessary and express reference the Will annexed: Therefore, when oyer was craved of the letters testamentary, the plaintiff was bound to give a copy as well of the Will as of the certificate of the Ordinary: Daly v. Mahon, 4 Bingh. N. C. 235. (i) Rex v. Netherseal, 4 T. R. 260. If a Will be made in a foreign country, and proved there, disposing of goods in England, the executor cannot have action on such probate, but ought to prove the Will here: Lee v. Moore, Palm. (k) Ante, p. 13. (7) Ryves v. Duke of Wellington, 9 Beav. 579. (m) Hensloe's case, 9 Co. 38, a. Graysbrook v. Fox, Plowd. 281. Comber's case, 1 P. Wms. 767. Smith v. Milles, 1 T. R. 480. Woolley v. Clark, 5 B. & A. 744. S. C. 1 Dowl. & Ryl. 409. Treat. on Eq. Bk. 4, Pt. 2, c. 1, s. 2. (n) Graysbrook v. Fox, Plowd. 281. Wentw. Off. Ex. 115, 14th edition. Whitehead v. Taylor, 10 A. & E. 210. but he derives his title from the Will and not the pro bate: relation of the probate to the testator's death. SECTION II. What the Executor may do before Probate. Upon the principles stated at the conclusion of the preceding Section, it has been held that the executor, before he proves the Will in the Spiritual Court, may do almost all the acts which are incident to his office, except only some of those which relate to suits (o). Thus he may seize and take into his hands any of the testator's effects (p), and he may enter peaceably into the house of the heir, for that purpose, and to take specialties and other securities for the debts due to the deceased (q). He may pay or take releases of debts owing from the estate (r), and he may receive or release debts which are owing to it (s); and distrain for rent due to the testator (t). And if before probate the day occur for payment upon bond made by or to the testator, payment must be made to or by the executor, though the Will be not proved, upon like penalty as if it were (u). So he may sell, give away, or otherwise dispose at his discretion of the goods and chattels of the testator, before probate (x); he may assent (0) Godolph. Pt. 2, c. 20, s. 1. Wentw. Off. Ex. 81, 14th edition. Treat. on Eq. B. 4, Pt. 2, c. 1, s. 2. Wankford v. Wankford, 1 Salk. 301. Humphreys v. Ingledon, 1 P. Wms, 753. (p) Godolph. Pt. 2, c. 20, s. 1. Wentw. Off. Ex. 81, 14th edition. (q) Godolph. Pt. 2, c. 20, s. 1. Wentw. Off. Ex. 81, 14th edition. (r) Godolph. Pt. 2, c. 20, s. 3. Wentw. Off. Ex. 81, 14th edition. (s) Co. Litt. 292, b. Graysbrook v. Fox, Plowd. 281. Middleton's case, 5 Co. 28, a. Godolph. Pt. 2, c. 20, s. 1. Wentw. Off. Ex. 81, 14th edition. Wankford v. Wank ford, 1 Salk. 306, 307. Wills v. Rich, 2 Atk. 285. (t) Whitehead v. Taylor, 10 A. & E. 210. (u) Godolph. Pt. 2, c. 2, s. 3. Wentw. Off. Ex. 18, 14th edition. The penalty is now saved by bringing the principal and interest and costs into court, under stat. 4 Ann. c. 16, s. 13. (x) Godolph. Pt. 2, c. 20, s. 3. Wentw. Off. Ex. 82, 14th edition. He release or assign any part may of the personal estate before probate By Lord Macclesfield, 1 P. Wms. 768, Comber's case. to or pay legacies (y); he may enter on the testator's terms for years (2), and he may gain a settlement by residing in the parish where the land lies (a). And although he should die, after any of these acts done, without proving the Will, yet do these acts so done stand firm and good (b). Where a termor devised his term to another whom he made his executor and died; and the devisee entered and died without any probate; it was held that the term was legally vested in the executor by his entry, and an execution of the devise, without any probate (c). So if an executor assents to a legacy, and dies before probate, yet the assent is good enough (d). So all payments made to him are good, and shall not be defeated, though he dies and never proves the Will (e). In a word, the executor's not proving the Will, does, upon his death, determine the executorship, but not avoid it (ƒ). It must, however, be carefully observed in this place, that, although an executor may, before probate, by assignment of a term for years, or other chattel of a testator, or by an assent to a specific legacy, give a valid title to the assignee or legatee; yet, if it be necessary to support that title by deducing it from the assignment or assent, it also becomes requisite to show the right to make the assignment or give the assent; which can only be effected by producing the probate, or other evidence of the admission of the Will in the Spiritual (y) Godolph. Pt. 2, c. 20, s. 1. Wentw. Off. Ex. 82, 14th edition. (z) Rex v. Stone, 6 T. R. 298. Dyer, 367, a. And the executor of the grantee of the next avoidance of a church may grant the advowson before probate: Smithley v. Chomeley, Dyer, 135, a. (a) 6 T. R. 295. (b) Wentw. Off. Ex. 82, 14th edit. Brazier v. Hudson, Sim. 67. (c) Dyer, 367, a. Rex v. Stone, 6 T. R. 298. Fenton v. Clegg, 9 Exch. 680. (d) Anonymous, Freem. Chanc. Cas. 28, pl. 22, b. (e) Wankford v. Wankford, 1 Salk. 306, 307. (f) By Lord Holt, in Wankford v. Wankford, 1 Salk. 309. Quære, whether, when a debtor makes his creditor his executor, who dies after having intermeddled with his goods, but before probate, and before any election made to retain, the executor of the executor may retain; See Croft v. Pyke, 3 P. Wms. 182, and post, Pt. III. Bk. II. Ch. II. § VI. VOL. I. S |