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showing whether they were made before or after the execution of the Will (r).

Where alterations are satisfactorily shewn to have been made before the execution, it is usual to engross the probate copy of the Will fair, inserting the words interlined in their proper places, and omitting words struck through or obliterated. But in cases where the construction of the

Will may be affected by the appearance of the original Probate in fac paper, the Court will order the probate to pass in fac simile.

simile (s). And it appears to have been sometimes supposed that the grant of such a probate leaves it open to a Court of Construction to inquire whether such alterations of the Will were made under such circumstances as to be effectual (t). But it is plain, it should seem, that unless the Court of Probate had adjudged that the obliterations or other alterations had been effectually made, the decree would have been for probate of the Will in it's original state. A fac simile probate, therefore, of a Will made after the New Wills' Act came into operation, is conclusive in the Temporal Courts, that the Will was in that state before its execution, i. e. that the testator duly executed it with the alterations or cancellations upon it (u). And the object of the fac simile is that the alterations, &c. may possibly help to show the meaning of the testator: As, for example, in a case where a testator says, “I give A.B. an annuity of 5001., and I also give him 1000l. :" and the testator then strikes out down to and including the words “5001.” (x)

(r) One of the subscribed wit- probate will be granted of the Will nesses will suffice, if he can speak as it originally stood. When two positively. But if none of them witnesses join in one affidavit, both can do so, they should all, what- must depose to the due execution : ever be their number, join in the In the goods of Batten, 7 Notes of affidavit : In the goods of Town- Cas. 290. shend, 5 Notes of Cas. 146. If none (s) See post, p. 490, 491. of them can depose negatively or (t) Shea v. Boschetti, 18 Beav. affirmatively, the practice is for the 321. 3 De G. M. & G. 778, 779. executor to join in the affidavit and (u) Gann v. Gregory, 3 De G. depose that he cannot adduce any M. & G. 777. Post, p. 490. further or other evidence, and then (2) 3 De G. M. & G. 780. Sup

In a late case (y) a testator having duly executed a Will, Probate after

citation of permade a later one, betraying on the face of it insanity: The sons interested executors of the earlier Will took out a decree calling on

to propound a all

later paper. persons interested in the later paper to propound it, with an intimation that, on not appearing, the Court would decree probate of the earlier Will: The persons cited, executed proxies declining to propound the later paper, and consenting to probate of the earlier one: And Sir H. Jenner Fust accordingly decreed probate of it in common form, without the later paper having been propounded at all, and said that the course which had been taken was that which ought to be adopted in all similar instances.

SECTION IV.

Proof of Wills in Solemn Form or per Testes.

When a Will is to be proved in solemn form, it is requisite that such persons as have interest (that is to say, the widow and next of kin of the deceased, to whom the administration of his goods ought to be committed, if he died intestate) should be cited to be present at the probation and approbation of the testament, in whose presence the Will is to be exhibited to the Judge, and petition to be made by the party who prefers the Will, and enacted for the receiving, swearing, and examining of the witnesses upon the same, and for the publishing or confirming thereof: whereupon witnesses are received and sworn accordingly, and are examined every one of them secretly, and severally, not only upon the allegation or articles made by the party producing them, but also upon interrogations ministered by the adverse party, and the depositions committed to writing : afterwards the same are published, and in case the proof be sufficient, the Judge, by pose, again, the words "to be of legatees: In such a case, it equally divided amongst them” should seem, there must, of necesinterlined (without any caret to sity, be a fac simile probate. show where they were intended to (y) Palmer v. Dent, 2 Robert. come in,) and in such a position 284. S. C. 7 Notes of Cas. 555. that they are applicable to two sets

his sentence of decree, pronounces for the validity of the

testament (2) The executor The difference between the common form and the solemn may, after proof in com- form, with respect to citing the parties interested, works this cited to prove diversity of effect; viz. that the executor of the Will proved the Will per

in common form, may, at any time within thirty years, be testes.

compelled, by a person having an interest, to prove it per testes in solemn form (a). Thus a probate of a codicil, granted in common form in 1808, was, upon the citation of the executor by a next of kin, to prove it per testes in due form of law, revoked in 1818 (b), and one granted in 1807, by a similar proceeding revoked in 1820 (c). So that if the witnesses be dead in the meantime, it may endanger the whole testament. Whereas, the testament being proved in solemn form of law, the executor is not to be compelled to prove the same any more; and although all the witnesses

afterwards be dead, the testament still retains its full force (d). The executor Hence, not only are Wills proved in solemn form, at the himself may

instance of who desire to invalidate them (e); but the prove the Will

persons

(z) Swinb. Pt. 6, s. 14, pl. 3. before he takes this step, he is not Godolph, Pt. 1, c. 20, s. 4.

entitled to any indulgence at the (a) Godolph. Pt. 1, c. 20, s. 4, hands of the Court: He is entitled Indeed Swinburne, Pt. 6, s. 14, to have the law strictly adminispl. 4, seems to consider ten years tered and to nothing beyond it: as the limit within which the exe- Blake v. Knight, 3 Curt. 553. And cutor may be compelled to prove: under such circumstances the Court but this probably is a typographical (having regard to the infirmity of mistake for thirty: see 4 Burn. E. the witnesses' memory after the L. 318, Phillimore's edit. However, lapse of time) is, it should seem, in Hoffman v. Norris, (Prerog. 1805) somewhat astute to discover cirreported in a note to Newell v. cumstances whereupon to found an Weeks, 2 Phillim. 231, Sir Wm. inference that the formalities reWynne says, “I do not know that quired for a due execution of the there is any specific time that limits

Will have been gone through. See a party." See also Merryweather the cases collected, ante, p. 87, 0. Turner, 3 Curt. 802, 817. In 88. the goods of Topping, 2 Robert. (6) Satterthwaite v. Satterth620, by Sir J. Dodson, Accord. waite, 3 Phillim. 1. But where a party who is thus en- (c) Finucane v. Gayfere, 3 Philtitled to call in the probate and put lim. 405. the executor to proof of the Will, (d) Swinb. Pt. 6, s. 14, pl. 4. chooses to let a long time elapse (e) In such case it is laid down

executor himself may, and in prudence often does, for greater in solemn form

in the first security, propound and prove the Will, in the first instance, instance. per testes, of himself, citing the next of kin, and “all others pretending interest in general,” to “see proceedings;" which being done, the Will shall not be set aside afterwards (provided there be no irregularity in the process) when the witnesses are dead (f). The next of kin, as such merely, are entitled to call for The executor

may be comproof in solemn form of the deceased's Will, of common pelled to prove

in solemn form, right. And the mere acquiescence of a next of kin to the

by a next of probate being taken in the common form is no bar to the kin, who has

acquiesced and exercise of this right, even though he has received a legacy received a

legacy : as due to him under the Will; for he is still at liberty to call in the probate, and put the executor on proof of that identical Will per testes (g). A strong instance of this occurs in the case of Core v. Spenser (which was decided in the Prerogative Court of Canterbury, in 1796) (h), where Spenser, the executor, was cited to bring in the probate of a Will, taken in 1788, eight years before, at the suit of Core, whose mother had received an annuity under that Will for five of the eight years; and she, Core herself, her mother dying at the end of the fifth year, for the remaining three : Spenser, in that case, appeared under protest, and contended that Core was barred from putting him on proof of the Will: But the Court thought otherwise, and overruled the protest. However, long acquiescence, unaccounted for by any special circumstances, and acts done by a next of kin under the

that the proctor of the party disputing the Will, at the time of exhibiting the Will, ought to accept the contents thereof so far forth as it makes for the benefit of his client; otherwise if any legacy is given to him in the Will, he shall lose it for his general impugning of the Will : 1 Oughton, tit. 6, s. 10. 4 Burn. E. L. 819, Phillimore's edit. But this doctrine is, it should seem, obsolete.

(f) 1 Ought. tit. 6, s. 5, tit. 222, s. 1, 2.

(9) Bell v. Armstrong, 1 Add. 370. Merryweather v. Turner, 3 Curt. 802. Bell v. Raisbeck, Privy Council, 20th Feb. 1844, cited 3 Curt. 814, per curiam. See also Gascoyne v. Chandler, 2 Cas. temp. Lee, 242.

(h) 1 Add. 374, in Sir J. Nicholl's judgment in the case of Bell v. Armstrong

provisions of the Will, may (if no fact appear, which excites a reasonable suspicion of the genuineness or validity of the Will) amount to such a waiver of his rights, as to preclude him from putting the Will in suit (i). So where a Will had been declared well proved in the Court of Chancery, after an order for an issue devisavit vel non had been discharged on the petition of the heiress-at-law (also sole next of kin) and her husband, and an annuity bequeathed to her regularly received during fourteen years, the Court refused, at the prayer of the heiress-at-law and her husband, to call on the

executors to prove that Will in solemn form (k). but he must

And before a legatee, who has received all or part of his bring his legacy into legacy, can be permitted thus to dispute the Will, he must Court:

bring into Court the amount of the legacy paid to him, to

abide the event of the suit (1). Legatee who A legatee who has renounced administration cum testahas renounced administration mento annexo, as legatee and next of kin, whereupon it has with the Will annexed :

been granted to another, is not barred by such renunciation from contesting the Will; and he may therefore cite such administrator to bring the letters of administration into Court, to prove the Will by witnesses, or to shew cause why the deceased should not be pronounced to have died intestate, and why administration should not be granted to

himself (m). if the executor But when the executor propounds and proves the Will, pounds the per testes, of himself, duly citing the next of kin" to see Will, a next of kin, though proceedings,” all next of kin so cited, are, generally speaking, not cited, can

thereby for ever barred ; and if he so propounds and proves not call for proof, if privy the Will against certain only of the deceased's next of kin, to the first suit.

without having cited them all to see proceedings, the others, even though uncited, if to a certain extent privy to, and aware of the suit, shall not put the executor on proof

(i) Hoffman v Norris, 2 Phillim. (1) 1 Add. 374. Braham v. Bur230, in a note to Newell v. Weeks. chell, 3 Add. 256, 257. Secus, Braham v. Burchell, 3 Add. 257, where the legatee is a minor : God258.

Norton, 5 Notes of Cas. 76. (k) Merryweather v. Turner, 3 (m) Gascoyne v. Chandler, 2 Cas. Curt. 802.

temp. Lee, 241.

himself pro

dard v.

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