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If an executor dies before probate, although, as already If he die before mentioned, the acts which he may legally do before probate executor shall

probate, his stand firm and good, yet his executor may not prove both not be executor Wills, and so become executor to both the testators (f). But tator. administration of the goods of the first testator, with the Will annexed to it, is to be committed to the executor of the executor, if the first executor be residuary legatee of the first testator; or to such other person as may be so appointed ; otherwise to the next of kin of the first testator (g).

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CHAPTER THE SECOND.

IN WHICH OF THE ECCLESIASTICAL COURTS THE WILL IS TO BE

PROVED: AND HEREWITH OF BONA NOTABILIA.

а

The next inquiry is, in which of the Spiritual Courts the

Will is to be proved. In general, a Regularly, the person before whom the testament is to be Will is to be proved before proved is the Ordinary of the place wherein the testator the bishop of the diocese,

dwelt ; i. e. generally speaking, the Bishop of the diocese (a). where the tes. And if all his goods and chattels lie within the jurisdiction of tator dwelt.

the bishop of the diocese within which he died, a probate

before that bishop, or his officer, is the only proper one (b). Peculiais. A Peculiar, in the ecclesiastical acceptation of the word,

is a district exempt from the jurisdiction of the Ordinary of the diocese in which it lies (c): and it is called a Peculiar because it is excluded from the common Ordinary, and under a peculiar and special Ordinary of its own (d). Consequently, in all these districts such special Ordinaries have respectively a power, even of common right, to grant probate of the testaments, and administration of the goods, of those who die within them leaving no bona notabilia out of their limits (c).

(a) Godolph. Pt. 1, c. 22, s. 2. which sprung from a privilege they 2 Inst. 398. Com. Dig. Adminis- had to enjoy jurisdiction in such trator, (B. 5.)

places where their seats and pos(6) 2 Black. Comm. 508.

sessions were. Within the province (c) 2 Gibs. Cod. 978, n. (b). Augh- of Canterbury there tie v. Aughtie, 1 Phillim. 201, n. (a). than a hundred such Peculiars :

(d) Denham v. Stephenson, 1 but the term κατ' εξοχήν is applied Salk. 41, by Salkeld arguendo. 2 to thirteen parishes within the Gibs. Cod. 978, n. (b). Parham v. city of London, and the seveTempler, 3 Phillim. 245.

ral parishes composing the dean(e) 1 Salk. 42, arguendo. Pecu- eries of Croydon in Surrey, and liars are of several sorts. 1. Pe- Shoreham in Kent: of these the culiars of the archbishops exclusive Dean of the Arches is judge: in of the bishops and archdeacons, the other Peculiars, the jurisdiction

are

more cese or pecu

But if the deceased, at the time of his death, had effects The arch. to such an amount, as to be considered notable goods, usually gative where

bishop's prerocalled bona notabilia, within some other diocese or Peculiar the testator

has left bona than that in which he died, then the Will must be proved notabilia in

another diobefore the metropolitan of the province, by way of special

liar than that prerogative (f): whence the Courts where the validity of

wherein he such Wills is tried, and the offices where they are registered, died. are called the Prerogative Courts and the Prerogative Offices of Canterbury and York. Which Prerogative is grounded upon this reasonable foundation; that, as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the present administrators are, in effect, no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to collect any goods of the deceased, other than such as lay within their own dioceses, beyond which their episcopal authority extends not : But it would be extremely trouble

is exercised by Commissaries ; from whose sentence an appeal lies to the Arches: 2 Gibs. Cod. 978, n. (b). Aughtie v. Aughtie, 2 Phillim. 201, note by the learned reporter. 2. Peculiars of Bishops, exclusive of the jurisdiction of the bishop of the diocese in which they are situated : of which sort the bishop of London has four parishes within the diocese of Lincoln : Gibs. Cod. ubi supra. 3. Peculiars of bishops exclusive of archidiaconal jurisdiction. 4. Peculiars of deans, and of deans and chapters, prebendaries, and the like, who have power to appoint commissaries for probate of Wills, &c. : 2 Gibs. Cod. ubi supra. Archdeacons have no power to grant probates quatenus archdeacons, although they may do so as the bishop's Commissaries for their respective archdeaconries, or by reason of Peculiars, belonging to the fourth class of those above enumerated. See Adams v. Savage,

6 Mod. 134. There is also another
sort of Peculiar, more highly ex-
empt than those already enume-
rated, viz. Royal Peculiars; which
are exempt from the jurisdiction,
not only of the Diocesan, but of
the archbishop also, and which all-
ciently were immediately subordi-
nate to the see of Rome. A Royal
Peculiar is in no degree subject
to the archbishop; it is indepen-
dent of him; it is as much out of his
province in point of jurisdiction as
the province of York, or of Dublin ;
it is co-ordinate: Smith v. Smith,
3 Hagg. 768. Easton v. Carter, 5
Exch. 8. By the stat. 25 Hen. VIII.
c. 19, these were placed immedi-
ately under the jurisdiction of the
crown: and all appeals from them
transferred directly to his Majesty
in the High Court of Delegates :
See Parham v. Templer, 3 Phillim,
246. Johnson v. Ley, Skin. 589.
3 Hagg. 763.

($) 4 Inst. 335.

sime, if as many administrations were to be granted as there are disceses within which the deceased had bona notabilia, todes the uncertainty which creditors and legatees would tes: case different administrators were appointed, to Lue fund out of which their demands were to be ni atire is, therefore, very prudently vested in 21 of each province, to make, in such cases,

Ce non serve for all. This accounts very satisInic se reason of taking out administration to 9-6-5 - Egre large and diffusive property, in the

e Cit: And the probate of Wills naturally nie wer of granting administrations; in order to

e Crünary that the deceased has, in a legal 22tr. appointing his own executor, excluded him and 2: sen rom the privilege of administering to the

Let Yorks contains the bishoprick of the county

Clever newly erected by King Hen. VIII. matica si dulu tu the archbishoprick of York), of the

ti ya ut Carlisle, and of the Isle of in line by Hen. VIII.): but a greater inions and anciently had, which time hath U ). It is

enrbury includes all the other bishopMid Wales.

nie the value to which goods must amount in

caseru luna notabilia, there was, it is said, mamuh diversity of opinion, some holding that they mus: bee fortr shillings value, some one hundred shillings,

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Lo Back Comm. 510.

In W.IV. c. 77: but by sect. 22, the Sarth e. Bp. of London, 1 Hagg. existing law of bona notabilia shall 632, Sir John Vicholl intimated his remain unaltered for one year after opinion, that the principle of all the passing of the Act. Since which Prerogative Probates was, to save time the operation of the Act has the necessity of two grants. been prevented by a series of sta

(h) Co. Lit. 94, a. Several tutes. The stat. 18 & 19 Vict. changes of province, diocese, arch- c. 75, has continued the suspension deaconry, and other jurisdiction till Aug. 1856 and the end of the will be effected by the stat. 6 & 7 then next session of Parliament.

some 101., some that the value of a penny sufficed to draw it to the archbishop from the particular bishop (i). But that difference of opinion has long ago been cleared by a canon made in the first year of the reign of King James I., at a convocation then held, whereby it is established, that 51. shall be the sum or value of bona notabilia; yet therein is this proviso, that where by composition or custom in any dioceses bona notabilia are rated at a greater sum, the same shall continue, and shall not be altered (k).

This canon (the 93rd) is headed, “ The rate of bona nota- Canon 93. bilia liable to the Prerogative Court," and contains these words: “No judge of the archbishop's prerogative shall No judge of henceforward cite or cause to be cited ex officio any person shall cite any

Prerogative whatsoever to any of the aforesaid intents, (riz., for the person to take

probate, &c., probate of Wills or grant of administrations), unless he have unless the deknowledge that the party deceased was, at the time of his ceased possess

ed goods, &c., death, possessed of goods and chattels in some other diocese in some other or dioceses, or peculiar jurisdiction within that province, dioceses, &c., than in that wherein he died, amounting to the value of 51. wherein he at the least: decreeing and declaring, that whoso hath not

died, to the

value of 51. goods to the said sum or value, shall not be accounted to have bona notabilia. Always provided that this clause here, and in the former constitution mentioned, shall not prejudice those dioceses where, by composition or custom, bona notabilia are rated at a greater sum ” (1).

diocese or

than that

) Wentw. Off. Ex. 105, 14th edition.

(k) Went. Off. Ex. 106, 107, 14th edition. In the diocese of London, bona notabilia are so rated at 101. : 1 Oughton, tit. 6, n. (a). pl. 3.

(1) Lyndewode, who flourished in the beginning of the fifteenth century, and was oflicial to archbishop Chichele, interprets the hundred shillings to signify solidos legales ; of which he tells us seventy-two amounted to a pound of gold, which in his time was valued

at fifty nobles, or 161. 13s. 4d. He
therefore computes that the hun-
dred shillings, which constituted
bona notabilia, were then equal in
current money to 231. 38. Od. This
will account for that is said in our
ancient books, that bona notabilia
in the diocese of London, and in-
deed every where else, were of the
value of 101. by composition : for,
if we pursue the calculations of
Lyndewode to their full extent, and
consider that a pound of gold is
now almost equal in value to an
hundred and fifty nobles, we shall

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