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does not pass

Therefore, in the latter case, the defendant may plead in it may be

pleaded in bar bar to an action brought by such an executor or administra- or shown upon tor, that there were bona notabilia in divers dioceses (y): or

a plea of ne

unques execumay give that matter in evidence upon a plea of ne unques tor that there

were bona noexecutor, or ne unques administrator ; for it confesses and tabilia : avoids, and does not falsify the seal of the Ordinary (2). But but a defence, if the defence is, not that the granting of probate or of letters the probate is

valid, the parof administration by the particular bishop is void, but that ticular debt the simple contract debt, which is the subject of the action, under it, must did not pass under the grant, by reason of the defendant's, the be specially

pleaded. debtor's, residence out of the diocese at the time of the death of the testator, such defence cannot be given in evidence upon a plea of ne unques executor or ne unques administrator ; but must be specially pleaded. Thus in assumpsit by an administratrix upon a promissory note given to her intestate, she made profert of letters from the Bishop of Chester; and there was a plea of ne unques administratrix: Upon the trial, letters of administration, in the common form, from the Bishop of Chester, were produced ; but it appeared, that, at the time of his death, the intestate had bona notabilia in the diocese of Lichfield and Coventry, (which is in the province of Canterbury), as well as in that of Chester, (which is in the province of York): and one of the objections made on behalf of the defendant was, that the letters of administration only entitled the plaintiff for assets proved to have been in the diocese of Chester, and there was no proof here that the debtor resided in the diocese of Chester at the death of the intestate : But the Court were of opinion, that, upon the

acts of an executor before probate, and those of an administrator before grant of administration, with relation to the right of the executor being derived from the Will, and not the probate, and that of the administrator entirely from the administration. Nor does such a distinction, as is supposed to have been taken by his Lordship, appear to have any foundation either

in principle or authority. See Mr.
Fraser's note to Prince's case, 5
Co. 30, a. See also 3 Curt. 61, In
the goods of Hogg.

(y) 1 Saund. 275, a. note (3), to
Rex v. Sutton.

(z) Noel v. Wells, 1 Lev. 236.
S. C. 1 Sid. 359. Anon. Com.
Rep. 150. Bull. N. P. 143. 1
Saund. 275, a. note (3), to Rex v.
Sutton.

form of plea, the only fact put in issue was, whether the letters mentioned in the declaration were duly granted ; and that if the defendant intended to insist that, by reason of any matter dehors the letters, the plaintiff was not administratrix as to the particular debt which was the subject of the action, he should have stated that matter in his plea (a).

Still if the defendant had shown at the trial, that at the time of the death of the intestate, he, the debtor, lived in some other diocese within the province of York, it is apprehended, that this would have been a good defence, under a plea of ne unques administratrix: for (assuming the promissory note to have been for a sum exceeding 51.) the defendant would then have shown that the intestate left bona notabilia in two dioceses of the same province; and that, consequently, a diocesan administration was void: which may

be given in evidence upon a plea of ne unques administratrix. If a prerogative

As the diocesan grant, where there are bona notabilia, is grant is sought, after the pro.' absolutely void, it follows that all acts of administration done perty has been nearly all ad- under it are also void. Hence, where diocesan probate or ministered

letters have been obtained, and the property nearly all under a diocesan grant void administered under that grant, and upon its being found that by reason of bona notabilia, by reason of the deceased having left bona notabilia, there the property cannot be ought to have been a prerogative grant, and in order to make than the whole a valid title, such grant is applied for in the Prerogative Court,

the property must be regarded as wholly unadministered and

cannot be sworn at a less amount (b). An executor cited to prove,

If an executor be cited, (either by the judge, ex officio, or &c., in the

at the instance of a party) to prove a Will in the Prerogative prerogative, may decline

Court, either in the common form or per testes (c); or to the jurisdiction : show cause why probate, already granted by an inferior

judge, should not be repealed; the executor may appear under protest, alleging in substance that the Prerogative

(a) Stokes v. Bate, 5 B. & C. (6) In the goods of Hogg, 3 491. See also Huthwaite v. Phaire, Curt. 61. 1 Scott, N. C. 43. S. C. 1 M. & (c) See post, Ch. III. III. IV. Gr. 159. Easton v. Carter, 5 as to these modes of proof. Exch. 8.

amount.

prove bona

Court has no jurisdiction, inasmuch as the deceased died in such a parish, in such a diocese, and had not whilst living, and at the time of his death, sufficient goods, &c. to found the jurisdiction of the Prerogative Court of Canterbury, out of the aforesaid diocese in which he died: And then the onus is thrown on the other party to prove the jurisdiction of and the onus the court; for it is not to be presumed that the deceased had other party to any goods out of the diocese in which he died (d).

notabilia, &c. But if an executor, or one entitled to administration of Where an exec

utor applies the effects of an intestate, has applied to the Prerogative for probate to Court for a probate, it should seem that the inferior Ordinary, tive, the infewithin whose jurisdiction the deceased died, is not at liberty rior Ordinary

cannot put him to enter an appearance, and deny the jurisdiction of the to proof of

bona notabilia, court

upon the ground that there were no bona notabilia out semble: nor of his own jurisdiction (e); nor has a person, who holds a

can the holder

of a Will, who Will as a trustee and creditor, having been monished to is monished to

bring it in. bring it into the Prerogative Court, at the suit of one entitled to probate or administration, any right to insist upon proof of bona notabilia in the first instance, and prior to bringing in the Will (f). It only remains to be stated upon the subject of bona The rule re

specting bona notabilia, that the rule which applies to bishops with respect notabilia does to each other, does not affect the several commissaries of not apply to

the several the same bishop among themselves. Thus, probate in the commissaries Court of the Archdeacon of Sudbury, to whom the bishop had bishop among

themselves. granted full power to prove the Wills of all

the Wills of all persons deceased within the archdeaconry, was held good, the testator having died within the archdeaconry; although he was possessed of bona notabilia lying within another archdeaconry in the same diocese; and the Court said, that the appointment of the bishop, as it regards the power of the commissary to prove Wills, arms him with episcopal authority for that purpose :

(d) 1 Oughton, tit. 223. But it tive: Nicholl v. Thomas, 2 Robert. has been laid down, that if a doubt 156. exists whether certain things con- (e) Chase v. George, 1 Add. stitute bona notabilia, the safer 336. course is to decide in the affirma- (f) Brown v. Coates, 1 Add. 345,

note (a).

of the same

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the commissary is the bishop for the purpose of proving such

Wills as he is authorised by the grant to prove (g). The Ordinary The Ordinary may either exercise his jurisdiction as to may act by his official :

granting probates and administration himself, or it may be done by his Official: for the act in no way concerns him in

his spiritual capacity (h). His authority The power of granting probates or administration is anmay be exercised in any

nexed to the person of the Ordinary, and is not local, like place.

the authority of a justice of the peace (i). Therefore the Bishop of London may commit administration of things within his diocese, he being at York (k). So where the commissary of the Bishop of Norwich, being in London, granted administration there, it was held good, because the power is not local and follows his person (1). So where a bishop of Ireland, being in England, committed administration of the goods of one who died intestate within his diocese in Ireland,

it was adjudged good (m). If the see is

If the bishopric or archbishopric be vacant, the dean and vacant, the dean and chapter are to grant probate and administration (n). Thus chapter are to grant probate, upon the suspension of the Archbishop Sancroft, adminis

tration was granted by the dean and chapter (o).

&c.

(9) Rex v. Yonge, 5 M. & S. (n) 1 Roll. Abr. 908, Exor. G. 2. 119.

3 Bac. Abr. 39, Exors. E. 4. Jenk. (h) 3 Bac. Abr. 39, tit. Execu- 5 Cent. Cas. 23. tors, E. 4.

(0) It was pleaded without ex(1) Barnes v. Mordaunt, Noy, ception to have been so granted in 112.

Young v. Case, 1 Lutw. 30. It is (k) Carter v. Crofts, Godb. 33. said by Brooke, that if the arch

(1) Knollis v. Dobbins, Godb. bishoprick of York is void, the arch342.

bishop of Canterbury shall have (m) Charren v. Barnes, cited in the spiritualities, and at that time Helier v. Hundred of Benhurst, commit administration : Bro. OrCro. Car. 213. Anonymous, 6 dinary, pl. 22,—but quære, and Mod. 145.

see Burn, E. L. tit. Bishops, s. 5.

CHAPTER THE THIRD.

OF THE MANNER OF OBTAINING PROBATE, AND THE PRACTICE

OF THE ECCLESIASTICAL COURT WITH RESPECT THERETO.

SECTION I.

By whom the Will should be proved : and herewith of the

Production and Deposit of Testamentary Papers. THE

person alone by whom the testament can be proved is the executor named in it (a), whom (as before stated) the Ordinary, or other person having authority for the probate of the testament, may cite to the intent to prove the testament,

The executor and take upon him the execution thereof, or else to refuse may be cited the same (b). This may the Ordinary, or other competent to prove by the judge, do, not only ex officio, but at the instance of any party having an interest, which interest is proved by the

at the instance oath of the party (c). But such party should, in prudence as of any party well as fairness, communicate to the executor, previous to

having an causing such a decree of citation to issue, the ground of such a proceeding: otherwise the former may have to pay the costs. Thus, in a modern case, where the testator was domiciled and died in Scotland, a creditor cited the executor, under the seal of the Prerogative Court of Canterbury, to accept or refuse probate, with the usual intimation : The executor, sub modo, denied the jurisdiction of the Court, by reason that the deceased, while living, and at the time of his death, had no goods, chattels, or credits, within the province

interest.

(a) 1 Salk. 309.

(6) Swinb. Pt. 6, s. 12, pl. 1. Godolph. Pt. 1, c. 20, s. 2. As to the form of the citation, see stat. 1 Edw. VI. c. 2. (c) Ibid.

Some think it may

be done at the instance of such
as have no interest, to the intent
that thereby they may be cer-
tified whether the testator left
them a legacy: Godolph, Pt. 1,
c. 20, s. 2.

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