and the law shall bind you; and that you will exhibit a true, when you shall be lawfully called thereunto. So help you By the ancient canon law, a proctor having a special proxy might make oath instead of the executor or administrator, and swear upon the soul of his client (y): But now by canon 132, it is ordered, that "forasmuch as in the probate of testaments and suits for administration of the goods of persons dying intestate, the oath usually taken by proctors of courts in animam constituentis is found to be inconvenient; therefore, from henceforth every executor or suitor for administration shall personally repair to the judge in that behalf, or his surrogate, and in his own person, and not by proctor, take the oath accustomed in these cases. But if by reason of sickness, or age, or any other just let or impediment, he be not able to make his personal appearance before the judge; it shall be lawful for the judge, (there being faith first made by a credible person of the truth of his said hinderance or impediment) to grant a commission to some grave ecclesiastical person, abiding near the party aforesaid, whereby he shall give power and authority to the said ecclesiastical person in his stead to minister the accustomed oath above mentioned to the executor or suitor for such administration, requiring his said substitute, that by a faithful and trusty messenger he certify the said judge truly and faithfully what he hath done. therein " (z). (x) 4 Burn. E. L. 327, Phillimore's edit. By a rule of the Prerogative Court of Canterbury, the time of the death is also required to form part of the oath: See the reason for this, post, Pt. 1. Bk. IV. Ch. III. § VII. p. 338, note (k). And by stat. 55 Geo. III. c. 184, s. 38, no Ecclesiastical Court shall grant any probate without first re- (y) 1 Oughton, tit. 6, s. 4, n. (c). Proctor's oath in animam constituent is. Practice of administering the oath where the executor is infirm, or lives at a distance. Manner of obtaining probate: 1st, of Wills made before Jan. 1, 1838: Accordingly, if the executor be infirm, or live at a distance, it is usual to grant a commission or requisition to the archbishop or bishop, in England or Ireland, (as the case may be), or if in Scotland, the West Indies, or other foreign parts, to the magistrates or other competent authority, to administer the oath to be taken previous to granting probate of the Will (a). Where a commission had issued to take the affidavits of executors to the testamentary scripts of the deceased, and the commission was, in the usual form, addressed to two clergymen, and directing that the executors should be sworn in the presence of a notary public; it was held that it was insufficiently executed, the oath having been administered in the presence of two witnesses, instead of a notary public (b). With respect to the manner of obtaining probate in common form, it is necessary to consider the subject, 1st, with respect to Wills made before the 1st of January, 1838, and which therefore are not within the operation of the stat. 1 Vict. c. 26; (Act for the amendment of the Law with respect to Wills). 2ndly, with respect to Wills made on or after that date, &c., and to which, consequently, that statute extends. 1st, with respect to Wills made before the 1st of January, 1838 Where a Will is perfect, on the face of it, it is only required for probate in common form, where there is no subscribing witness, that an affidavit should be made by two persons to the signature of that Will being in the handwriting of the testator (c). If the Will is attested by one subscribing (a) Toller, 65. By order of the Prerogative Court of Canterbury, certain forms are prescribed for the commission of swearing executors residing in the country, and for the oath to be administered. See 3 Burn's Ecc. L. 233, 234. Phillimore's edition. Though the forms pointed out by the requisition have not been followed, yet if this is owing to the refusal of the authorities in a foreign country to execute the requisition in the prescribed forms, the Court will accept a return showing a virtual compliance with the object of the requisition In the goods of Towndrow, 2 Robert. 437. (b) Jones v. Jones, 2 Phillim. 241. (c) Brett v. Brett, 3 Add. 224. In a modern case, probate in common perfect on the witness, the affidavit of one person to handwriting is then when they are only required and if it be attested by two subscribing face: witnesses, then the oath of the executor alone is sufficient, without any affidavits as to the writing (d). By stat. 1 Vict. c. 26, s. 15, every legacy to an attesting witness shall be void. But if a subscribing witness is also a legatee in any Will to which that statute does not extend, in such case (as the statute 25 Geo. II. c. 6, does not apply to Wills of personalty, and therefore, the witness does not lose his legacy) (f), the party has been considered. in the Spiritual Court as no witness, being incompetent from interest: Accordingly, if of two subscribing witnesses to a Will, one is a legatee, the practice has been to require affidavit of one person to probate of the Will in common form, as if the Will were subscribed by a single witness; if both subscribing witnesses are legatees, to require an affidavit of two persons to handwriting, just as it would be if the Will were wholly unattested (g). But where probate in common form is sought of an instrument which, on the face of it, is imperfect (whether the imperfection consist in its being incomplete in the body of it, form of an unattested Will was granted on the affidavit of one person only as to handwriting, a solicitor and intimate acquaintance; the sister of the deceased, being her executor and sole next of kin and in distribution, also deposing that from the deceased's retired habits and infrequency of writing, no second affidavit of handwriting could be procured: the deceased, too, having been dead nine months, and no other application made: In the goods of Keeton, 4 Hagg. 209. (d) Brett v. Brett, 3 Add. 224. It is said by Godolphin, Pt. 1, c. 21, s. 4, that where there is no controversy or dispute touching the Will, there the single oath of the executor alone is sufficient for (g) 3 Add. 225. This practice where a sub scribing witness is also a legatee: when they are imperfect on the face: probate will not be granted unless upon affidavits stating a case which would establish the Will upon solemn proof: and unless all parties interested are consenting or eited: the same law, where a paper is deliberative on the face of it: Minors cannot bate in common or merely in the execution, as in the want of signature, or of Therefore, as on the one hand, however complete the The rule is the same, where from erasures, interlineations, or other similar causes, it appears primâ facie, on the document itself, that the instrument is deliberative (m). It follows, that where minors are parties interested, since consent to pro- they cannot give a proxy of consent, probate in common form cannot, generally speaking, be obtained of an instrument imperfect on the face of it (n). form: 2ndly, of Wills made on or Secondly, with respect to Wills made on or after the 1st day of January, 1838. If the Will be perfect on the face of (h) See ante, p. 74. (i) In the goods of Thomas, 1 Hagg. 695. In the goods of Herne, 1 Hagg. 225. In the goods of Hurrill, 1 Hagg. 253. In the goods of Wenlock, 1 Hagg. 551. (k) In the goods of Tolcher, 3 Add. 16. (7) In the goods of Edmonds, 1 Hagg. 698. In the goods of Adams, 3 Hagg. 258. If the deceased was illegitimate, the consent of the crown must be obtained: In the goods of Robinson, 1 Hagg. 643. (m) In the goods of Herne, 1 Hagg. 222. Braham v. Burchell, (n) In the goods of Gibbs, 1 1838: it, and there is an attestation clause, reciting that the solem- after Jan. 1, nities required by the statute 1 Vict. c. 26, s. 9, have been complied with (e. g. "signed and declared by the abovenamed testator, as and for his last Will and testament, in the presence of us present at the same time, who in his presence and in the presence of each other, have hereunto set our names as witnesses thereto. John Styles, Richard Nokes"), probate in common form may be obtained upon the oath of the executor alone. But if there is no attestation clause, or if there is a clause which does not state a performance of all the prescribed ceremonies, an affidavit is required from one of the subscribing witnesses, by which it must appear that the Will was executed in compliance with the statute (o). But this rule may be dispensed with, if the witnesses, after diligent inquiry, are not forthcoming (p). Where it appears from the affidavits, the attestation clause being imperfect, that the Will was not properly attested by the witnesses under the statute, the Court cannot decree administration to pass to the effects of the deceased as dead intestate; for there might be collusion: All that the Court will do in such cases is to reject the prayer for probate, leaving the parties to take out administration if they think. proper; as, notwithstanding the Court declines to grant probate, the Will might be propounded and established (q). If a Will, bearing date on or after January 1, 1838, has upon the face of it any unattested obliteration, interlineation, or alteration, the practice is to require an affidavit, appointed, and of minor legatees materially benefited thereby, grant probate, in common form, of the paper as originally executed: Ravenscroft v. Hunter, 2 Hagg. 65. (0) In the goods of Johnson, 2 Curt. 341. In the goods of Batten, 7 Notes of Cas. 290. Where one of the witnesses deposed that the Will was signed in the presence of himself and the other witness, the other witness having no recollection (p) In the goods of Luffman, 5 (q) In the goods of Ayling, 1 Curt. 913. See also In the goods of Watts, 1 Curt. 594. probate of Wills exhibit ing alterations tions. and oblitera |