of Canterbury, sufficient to found the jurisdiction of the Court, alleging that he was willing to take probate on being satisfied to the contrary: The creditor upon this was compelled to disclose assets within the province; whereupon the executor retracted his qualified denial, and prayed probate; which was granted to him, and the creditor was condemned in the costs, as incurred solely by reason of his undue suppression of the fact of there being assets (d). When the Will is destroyed or concealed by the executor, if it be proved plainly, a legatee may go to a Court of Equity for a decree upon the head of spoliation and suppression; although the general rule is to cite the executor in the Ecclesiastical Court (e). If the executor has not the Will in his custody, but some other person, then may such person be compelled to exhibit the same (f). And it is sufficient to prove that once he had it for he is presumed still to have the same, unless he affirms upon his oath that it is not in his possession (g). It has been more than once laid down by Lord Eldon, that the lien of an attorney or solicitor does not extend to the original Will executed by his client; and that he cannot refuse the production of it (h). On a late occasion (i) a rule was obtained in the Court of King's Bench to show cause why a writ in the nature of a writ of prohibition should not issue to the judge of the Prerogative Court of Canterbury, commanding him to stay all proceedings against John Law, in the matter of Joseph Wood deceased, until the lien of him, John Law, and of Richard Coates, on the Will of Joseph Wood, should have been satisfied or discharged: It appeared from the affidavits sworn in support of the application, that (d) Lyon v. Balfour, 2 Add. 501. (e) By Lord Hardwicke in Tucker v. Phipps, 3 Atk. 360. (f) Swinb. Pt. 6, c. 12, pl. 2. Godolph. Pt. 1, c. 20, s. 2. Bethun v. Dinmure, 1 Cas. temp. Lee, 158. (g) Ibid. (h) Georges v. Georges, 18 Ves. 294. Lord v. Wormleighton, Jac. Balch v. Symes, 1 Turn. & Russ. 87. He engages to make a Will effectual for the purposes of the testator; which it cannot be unless it is produced elsewhere: Jacob. 581. (i) Ex parte Law, 2 Adol. & Ell. 45. Law and Coates were attornies, and had been employed as such by the deceased: He died indebted to them in 2001. for business done, including the preparation of the Will, which he had deposited with them: After his death, Law admitted that the Will was in his hands, but refused to give it up to the widow until his account was settled: Whereupon he was served with a citation from the Prerogative Court at the instance of the widow, requiring him to appear in that Court, and bring in and leave in the registry there the original Will It was further sworn that Sir J. Nicholl, the judge of the Prerogative Court, had, on a day subsequent to the day on which the citation required the Will to be brought in, declared, upon the case being mentioned, that the claim of lien was no excuse for not bringing in the Will; and that if it was not brought in on or before the next sitting of the Court, he should pronounce Law to be in contempt: It was urged in support of the application, that as a lien was claimed, which is a matter of common law, the Court ought to interfere to prevent the Spiritual Court from proceeding: But the Court of King's Bench, after argument, discharged the rule, on the ground that the Spiritual Court had, at all events, jurisdiction to order the Will to be brought in; and that it was not to be presumed, that when they had ordered the Will in, they would do anything improper. In Brown v. Coates (j), Sir John Nicholl strongly inclined to an opinion, that a mere holder of a Will, monished to bring it into the Prerogative Court, could not be allowed to dispute the jurisdiction, and put the other party to proof of bona notabilia, prior to giving up the Will. Disputed Wills ought to be lodged in the Registry of the Court of Probate for custody. On one occasion Sir John Nicholl observed (k), "Practitioners have no right to keep Wills in their possession. I have, in several instances, stated, that the expense necessary to get a Will out of the hands of a party must fall upon those who withhold it." (j) 1 Add. 345. VOL. I. (k) Cunningham v. Seymour, 2 Phillim. 250. U Deposit of Will in registry: when and how it can be got out. It has been the constant practice of the Prerogative Court, to order all testamentary papers to be brought in when required. And a duplicate is a part of a Will, and to be considered a testamentary paper within this rule (1). Whether the Will respects personal estate only, or whether it is a mixed Will concerning both lands and goods, it is, after probate, deposited, together with all other testamentary papers, in the Registry of the Ecclesiastical Court in which it has been proved. If it should be needed in order to be put in evidence in some other judicial proceeding, the attendance of the Registrar, or other proper officer, with it, must be procured. In some cases, an order of the Court of Chancery may be obtained that it shall be delivered out by the Registrar on giving security to return it (m). And the Ecclesiastical Court itself has, on several occasions, ordered the Will to be delivered out of its Registry for the legal purpose of its being sent to the proper place for its custody (n). The last of these orders (o) appears to have been a decree that the Will and codicils of Napoleon Bonaparte should be delivered out (after notarial copies had been made) in order to be sent to the legal authorities in France to be recorded there in the proper place. The testator register his Will in his lifetime. SECTION II. When the Will is to be proved. If the testator be yet living, the judge may not proceed to may record and the proving of his testament, at the petition either of the executor or any other, saving at the request of the testator himself: But, at his petition, the testament may be recorded and registered among other Wills; but it is not to be delivered forth under the seal of the Ordinary with a probate; because it is of no force as long as the testator lives, who (7) Killican v. Parker, 1 Cas. temp. Lee, 662. (m) See post, § IX. p. 342. (n) Post, p. 337, note (i). (0) In re Napoleon Bonaparte, 2 Robert. 606. also may revoke or alter the same at any time before his death (p). The time, after the testator's death (q), when the Will is to be proved, is somewhat uncertain, and left to the discretion of the judge, according to the distance of the place, the weight of the Will, the quality of the executors, the absence of the witnesses, the importunity of creditors and legatees, and other circumstances incident thereto (r). And now by stat. 55 Geo. III. c. 184, s. 37, it is enacted, that "if any person shall take possession of, and in any manner administer, any part of the personal estate and effects of any person deceased, without obtaining probate of the Will or letters of administration of the estate and effects of the deceased, within six calendar months after his or her decease, or within two calendar months after the termination of any suit or dispute respecting the Will or the right to letters of administration, if there shall be any such, which shall not be ended within four calendar months after the death of the deceased; every person so offending shall forfeit the sum of one hundred pounds, and also a further sum, at and after the rate of ten pounds per centum on the amount of the stamp (p) Swinb. Pt. 6, s. 13, pl. 1. (q) If the death of the party cannot be proved by sufficient witnesses, recourse must be had to the presumption of law; for which see Swinb. Pt. 6, s. 13, pl.2. Godolph. Pt. 1, c. 20, s. 3. Dean v. Davidson, 3 Hagg. 554. In the goods of Hutton, 1 Curt. 595. Or in the case of a person long absent, and in parts far remote, and transmarine, to common fame: Swinb. Pt. 6, s. 13, pl. 2. Godolph. Pt. 1, c. 20, s. 3. In the Common Law Courts, a jury may presume that a man is dead at the expiration of seven years from the time when he was last known to be living: Per Lord Ellenborough, in Doe v. Jesson, 6 East, 84. See also, as to this presumption, Doe v. Deakin, 4 B. (r) Godolph. Pt. 1, c. 20, s. 3. Time within ought to be which the Will proved. Rule when five years have elapsed since the death. duty payable on the probate of the Will, or letters of Executor's oath. SECTION III. Proof of Will in Common Form. A testament may be proved in two ways; either in common Form, or by Form of Law; which latter mode is also called the Solemn Form, and, sometimes, proving per testes (t). A Will is proved in common form, when the executor presents it before the judge, and in the absence, and without citing the parties interested, produces witnesses to prove the same; who testifying, by their oaths, that the testament exhibited is the true, whole, and last Will and testament of the deceased, the judge thereupon, and sometimes upon less proof, doth annex his probate and seal thereto (u). The affidavit required of the executor is usually in this form: "You shall swear that you believe this to be the true last Will and testament of A. B. deceased; that you will pay all the debts and legacies of the deceased, as far as the goods shall extend, (s) Gwynne on Probate and Legacy Duties, p. 10. See In the goods of Darling, 3 Hagg. 561. (t) Swinb. Pt. 6, s. 14, pl. 1. Godolph. Pt. 1, c. 20, s. 4. There is another kind or form of proving testaments, which in the civil law is called apertura testamenti, which form respects written or closed testaments, in the making whereof amongst other solemnities the civil law required that the witnesses should put their seals; and after the death of the testator, at the opening of the written or closed testament, the same law required that the same witnesses should be called by the magistrate to acknowledge their seals or to deny the sealing. But this form is not of any use with us: Ibid. (u) Swinb. Pt. 6, s. 14, pl. 2. Godolph. Pt. 1, c. 20, s. 4. |