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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 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).
(1) Isted r. Stanley, Dyer, 372, a. Hayton v. Wolfe, Cro. Jac. 614. S. C. Palm. 153. Hutton, 30. Wentw. Off. Ex. 82, 14 edition. Day v. Chatfield, 1 Vern. 200. Wankford v. Wankford, 1 Salk.
308, in Lord Holt's judgment.
(9) Dyer, 372, a. Wentw. Off.
CHAPTER THE SECOND.
IN WHICH OF THE ECCLESIASTICAL COURTS THE WILL IS TO BE
PROVED: AND HEREWITH OF BONA NOTABILIA.
where the tes. tator dwelt.
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). And if all his goods and chattels lie within the jurisdiction of 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 (e).
(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(b) 2 Black. Comm. 508.
sessions were. Within the province (c) 2Gibs. Cod. 978, n. (6). 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 kar' toxiv is applied Salk. 41, by Salkeld arguendo. 2 to thirteen parishes within the Gibs. Cod. 978, n. ().
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 But if the deceased, at the time of his death, had effects The arch.
bishop's preroto such an amount, as to be considered notable goods, usually gative where called bona notabilia, within some other diocese or Peculiar
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 cese or pecuprerogative (f): whence the Courts where the validity of liar than that 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 6 Mod. 134. There is also another whose sentence an appeal lies to sort of Peculiar, more highly exthe Arches: 2 Gibs. Cod. 978, n. (6). empt than those already enumeAughtie v. Aughtie, 2 Phillim. 201, rated, viz. Royal Peculiars; which note by the learned reporter. 2. are exempt from the jurisdiction, Peculiars of Bishops, exclusive of not only of the Diocesan, but of the jurisdiction of the bishop of the the archbishop also, and which andiocese in which they are situated : ciently were immediately subordiof which sort the bishop of London nate to the see of Rome. A Royal has four parishes within the diocese Peculiar is in no degree subject of Lincoln : Gibs. Cod. ubi supra.
to the archbishop; it is indepen3. Peculiars of bishops exclusive of dent of him; it is as much out of his archidiaconal jurisdiction. 4. Pe- province in point of jurisdiction as culiars of deans, and of deans and the province of York, or of Dublin ; chapters, prebendaries, and the it is co-ordinate: Smith v. Smith, like, who have power to appoint 3 Hagg. 768. Easton v. Carter, 5 commissaries for probate of Wills, Exch. 8. By the stat. 25 Hen. VIII. &c. : 2 Gibs. Cod. ubi supra. Arch- c. 19, these were placed immedideacons have no power to grant ately under the jurisdiction of the probates quatenus archdeacons, al- crown: and all appeals from them though they may do so as the transferred directly to his Majesty bishop's Commissaries for their in the High Court of Delegates : respective archdeaconries, or by See Parham v. Templer, 3 Phillim. reason of Peculiars, belonging to 246. Johnson v. Ley, Skin. 589. the fourth class of those above 3 Hagg. 763. enumerated. See Adams v, Savage, (1) 4 Inst. 335.
sime, if as many administrations were to be granted as there
ke fand out of which their demands were to be
an of each province, to make, in such cases, Qe na serve for all. This accounts
very satisSe the reason of taking out administration to 20-ais tat Lave large and diffusive property, in the Eroare Ciut: And the probate of Wills naturally She wwer of granting administrations ; in order to saxt de Criinary that the deceased has, in a legal 12r. or appointing his own executor, excluded him and 2ses from the privilege of administering to the
the nest York contains the bishoprick of the county
s'i ser newly erected by King Hen. VIII. 2. Mitt living humu tu the archbishoprick of York), of the - Burut Carlisle, and of the Isle of inte en hy Hen. VIII.): but a greater mi se anciently had, which time hath 08:19). i.
Tenterbury includes all the other bishop
tek casiered bona notabilia, there was, it is said, rens rir much diversity of opinion, some holding that they must be of forty shillings value, some one hundred shillings,
isBlack. Comm, 510. In W. IV. c. 77: but by sect. 22, the Searth e. Bp. of London, 1 Hagg. existing law of bona notabilia shall 632, Sir John Nicholl 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 whatsoever to any of the aforesaid intents, (riz., for the person to take probate of Wills or grant of administrations), unless he have unless the de
ceased possess knowledge that the party deceased was, at the time of his ed goods, &c., death, possessed of goods and chattels in some other diocese in some other
diocese or or dioceses, or peculiar jurisdiction within that province, dioceses, &c.,
than that than in that wherein he died, amounting to the value of 5l. wherein he at the least: decreeing and declaring, that whoso hath not died, to the 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).
() 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 official 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