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the instrument itself, so far as it prescribes that, unless there is an ambiconfirmed.
guity on the face of the instrument, the Court can in no case admit parol evidence in order to supply an omission, appeared to be somewhat shaken by the late case of Castell v. Tagg (g): There Sir H. Jenner Fust admitted an allegation, pleading the omission of a legacy, by mistake in a Will perfect on the face of it, and decreed administration with the Will annexed, the legacy in question being first inserted and forming part thereof: And the learned Judge, after observing that he agreed with the counsel in support of the allegation, that the term ambiguity was not properly applied to the present case, proceeded thus, “ In Blackwood v. Damer (h), there was no ambiguity; the omission of the residue must be considered a deficiency but no ambiguity : The Court looked to other documents and discovered the omission: That case then is a precedent for the present, which is stronger in its circumstances. In Bayldon v. Bayldon (i), the Will purported to dispose of 50,0001. and 50001. were omitted: Still that was an omission, not an ambiguity; and the Court admitted evidence from written documents, which showed clearly what was intended." However, in the subsequent case of Thorne v. Rooke (k), where the question was whether two codicils were intended to operate together, or whether the latter was a substitute for, and revocatory of, the former, the same learned Judge, after an elaborate review of the principal decisions on the subject, was of opinion that “the Court is bound not to admit parol evidence until it is first satisfied that there is that doubt and ambiguity on the face of the papers which
requires the aid of extrinsic evidence to explain it (1).” Omissions in Although it appears from the above cases, that, under Wills cannot be supplied
certain circumstances, casual omissions in a Will may be from the in
supplied by the instructions given for such Will, yet it is structions unless in writing: clearly necessary that those instructions should have been
(9) 1 Curt. 298.
(k) 2 Curt. 799.
(1) See also Bailey v. Parkes, 5 Notes of Cas. 392.
reduced into writing in the lifetime of the testator: otherwise they cannot, by reason of the Statute of Frauds, under any circumstances, even of the plainest mistake, be admitted to probate as part of the Will (m). And with respect to Wills made on and after January 1, nor in any case
in Wills made 1838, it is plain that, by reason of the provisions of the after Jan. 1,
1838 : stat. 1 Vict. c. 26, the whole of every testamentary dispo
1 Vict. c. 26 : sition must be in writing, and signed and attested pursuant to the Act: Whence it follows, that the Court has no power to correct omissions or mistakes by reference to the instructions in any case to which that statute extends (n).
A verdict in an action of ejectment, brought for the pur- Verdict in pose of trying the validity of a Will as to realty, is not inadmissible in admissible in an allegation in a testamentary cause, respect- a testamentary ing the same Will, in the Ecclesiastical Court (o).
Not only when the competency of the testator is in dis- In what cases
the declarapute, but in all cases where there is any imputation of fraud tions of the in the making of the Will, the declarations of the testator testator are
admissible in are admissible in evidence respecting his dislike or affection evidence. for his relations, or those who appear in the Will to be the objects of his bounty, and respecting his intentions either to benefit them or to pass them by in the disposition of his property (p). So it was held by the Court of Q. B. in Doe v. Palmer (q), that in order to rebut the presumption which, as there has already been occasion to mention (r), exists that unattested alterations appearing on the face of a Will were made after the execution, it is allowable to give evidence of declarations of the testator, made before the execution, of his intention to provide by his Will for a person who would be unprovided for without the alterations in question : But that Court further held his declarations inadmissible, which
(m) Rockell v. Youde, 3 Phillim. 141. See ante, p. 63.
(n) In the goods of Wilson, 2 Curt. 853.
(6) Grindall v. Grindall, 3 Hagg.
(p) 16 Q. B. 759.
were made after the execution, to the effect that the alterations had been made previously: And Lord Campbell, in giving the judgment, said the Court could not be guided alone by the consideration that both parties claimed under the testator; for his declarations, made after a time when a controverted Will is supposed to have been executed, would not be admissible to prove that it had been duly signed and executed as the law requires.-In the Ecclesiastical Court the declarations of the testator have been deemed admissible to prove the fact of the destruction of a Will, even in cases where no fraud or misconduct is imputed (s).
Of the Probate of Wills of Foreigners, &c., and of British
Subjects domiciled out of the Jurisdiction of the Court.
left no per
If the deceased If the testator died without leaving any personal property sunalty in this in this country, generally speaking, his Will need not be country, his
proved in any Court of Probate here: and, therefore, where Will need not be proved the plaintiff, as administrator of I. S., who died at Naples, here:
brought his bill to have a discovery of the intestate's personal effects, the defendant pleaded that the deceased had by his Will made him, the defendant, his executor, and he had proved the Will according to the law of the country; and he denied that the deceased had left any estate but what
was at Naples : And this plea was held good (t). unless his ex- But if a foreign executor should find it necessary to instiecutor institute a suit : tute a suit here, to recover a debt due to his testator, he
must prove the Will here also, or a personal representative must be constituted by the Spiritual Court here to administer ad litem (u). So an executor having obtained probate
(8) See Hale v. Tokelove, 2 Robert. 328, by Dr. Lushington.
(1) Jauncey v. Sealey, 1 Vern. 397. See also Currie v. Bircham, 1 Dowl. & Ryl. 35. Hervey v. Fitzpatrick, Kay, 421. Post, p. 378, 379.
(u) Attorney Generalv. Cockerell, 1 Price, 179, by Richards, Baron. Mitf. Pl. 177, 4th edition. Tyler v. Bell, 2 M. & Cr. 89. Attorney General v. Bouwens, 4 Mees. & W. 193.
in Ireland cannot bring an action here as executor, even to recover Irish assets, without having obtained probate in England also (w). For the Courts here will not recognise any Will of personalty except such as the Ecclesiastical Court of this country has by the probate adjudged to be the last Will (y). Therefore if a testator die in India, and his personal estate be wholly there, and his executor be resident there, and the Will be proved there, yet if a part of the assets remain in the hands of the executor unappropriated, and come to be administered in England, and a legatee in England institute a suit here for the payment of his legacy out of such unappropriated assets, administration to the testator ought to be taken out in this country, and the administrator made a party to the suit (z). So to a bill which seeks an account of the assets of an intestate, who died in India, possessed by a personal representative there, a personal representative of the intestate, constituted in England, is a necessary party, though it does not appear that the intestate, at the time of his death, had any assets in England (a). And it may be stated, as a fully established rule, that in order to sue in any Court of this country, whether of law or equity, in respect of the personal rights or property of a deceased person, the plaintiff must appear to have obtained probate or letters of administration in the proper Spiritual Court of this country (6).
(2) Carter v. Crofts, Godb. 33. It appears from an able note to the Whyte v. Rose, 3 Q. B. 508, per American edition of the present Tindal, C. J.
Treatise, (which Mr. Francis I. (y) Price v. Dewhurst, 4 M. & Troubat has done the author the
81. Bond v. Graham, 1 honour of publishing at PhilaHare, 484. Lasseur v. Tyrconnel, delphia,) that it has been estab10 Beav. 28.
lished as a rule, by repeated (3) Logan v. Fairlie, 2 Sim. & decisions in many of the States, Stu, 284, 1 Myln. & Cr. 59. See that the executor or administrator also Lowe v. Fairlie, 2 Madd. 101. of a person who dies domiciled
(a) Tyler v. Bell, 2 Myln. & Cr. in Great Britain, or any other 89. Bond v. Graham, 1 Hare, 482. foreign country, cannot maintain See post, Pt. v. Bk. II. Ch. II. an action, in the United States, by
(6) 3 Q. B. 507. See also virtue of letters testamentary or M.Mahon v. Rawlings, 16 Sim. 429. administration granted to him in
من در پی در
Litis. f 2 W31 te sie in aliis eccstry. ard por 35 tiste, das pers. parents catry,
11 EIRO Lut pute the Wa bere a's :.
and in England, the Will is proved in the first instance in (
the Court of Great Sessions, in Scotland, and a cops duly authenticated being transmitted here, it is proved in the Ecclesiastical Court; and deposited as if it were an original Willie). Again, if the testator was domiciled in Ireland, the Will is proved in the Spiritual Court of that country; or if in the East or West Indies, in the Probate Court there; and a copy transmitted, proved and deposited in the same
manner (f). The rights of All personal property follows the person, and the rights the roots of a person constituted in England representative of a party tutsi here of a deceased, domiciled in England, are not limited to the perprwin demiciled bere ex- sonal property in England, but extend to such property, terud ten permasual wherever locally situate. Accordingly, where a person resiproperty abroad :
dent, but not domiciled, in France, made a testamentary paper relating to personalty in France, and to personalty and realty in England, and a second paper solely relating to personalty in France, and disposing of the whole of it to a woman with whom he cohabited, but appointed no executor
the country where the deceased viï. s. 513, 516, 517.