by rats, and in part illegible; on proof of the substance of the Will, by the joining of the pieces, and the memory of witnesses, the probate was granted (h). So if a Will, duly executed, is destroyed in the lifetime of the testator, without his knowledge, it may be pronounced for, upon satisfactory proof being given of its having been so destroyed, and als o of its contents (i). And where, after the death of the testator, his Will and codicil were wrongfully torn by his eldest son, the Court, having by means of some pieces which were saved, and by oral evidence, arrived at the substance of the instruments, pronounced for them (k). But when allegations of this sort are made, they must be supported by the clearest and most stringent evidence (1). If a Will be wholly or partially cancelled, or destroyed, by the testator whilst of unsound mind, probate will be granted of it, as it existed in its integral state, that being ascertainable (m). or cancelled by testator while non compos. Probate granted to one of several executors, enures to the Double probenefit of all (n). Where there are several executors, and (h) Toller, 70. See also In the goods of Harvey, 1 Hagg. 575, where an engrossed copy of a Will having been read over to, and approved by, the deceased, who intended to execute it shortly afterwards, but was prevented by death, probate in common form was granted (with consent of the only person interested under an intestacy) of one of the originally engrossed sheets, and of two fairly copied sheets, substituted for, and (except as to some clerical errors not affecting the disposition) corresponding with the sheets approved by the deceased. (i) Trevelyan v. Trevelyan, 1 Phillim. 149: See also Parker v. Hickmott, 1 Hagg. 211, as to granting probate, in its original state, of a Will altered without the testator's concurrence. See also bate where ral executors. there are seve some refuse, and others of them prove the Will, it has already appeared that they who refuse, may afterwards, at their pleasure, administer, notwithstanding their refusal before the Ordinary (o). But there is, what in the Spiritual Court is called a double probate; which is in this manner: The first executor that comes in, takes probate in the usual form, with reservation to the rest: Afterwards, if another comes in, he also is to be sworn in the usual manner, and an engrossment of the original Will is to be annexed to such probate in the same manner as the first; and in the second grant, such first grant is to be recited. And so on, if there are more that come in afterwards (p). Probate where Limited probate. If there be several executors appointed with distinct powers, as one for one part of the estate, and another for another, yet there being but one Will to be proved, one proving of it suffices (q). So if B. is made executor for ten years, and afterwards C. is to be executor, and B. proves the Will, and the ten years expire, C. may administer without any further probate (r). The Court may grant a limited probate where the testator has limited the executor (s). And it is laid down (t) that if a man makes and appoints an executor for one particular thing only, as touching such a statute or bond and no more, and makes no other executor, he dies intestate as to the residue of his estate, and as to this specialty only shall have an executor, and must have a Will proved; but in case he makes another Will for the residue of his estate, there must with the other trustees, an execu- (0) Ante, p. 250. (p) 4 Burn. E. L. 310. Phillimore's edition. (q) Wentw. Off. Ex. 31, 14th edit. Bac. Abr. Exors. (C.) 4. (r) Anon. 1 Freem. 313. Anon. 1 Chan. Cas. 265. See Watkins v. Brent, 1 Mylne & Cr. 104. (s) 1 Cas. temp. Lee, 280. Davies v. Queen's Proctor, 2 Robert. 413. In the goods of Beer, ibid. 349. (t) Wentw. Off. Ex. 30, 14th edit. be two Wills proved. However, where there is an executor appointed without any limitation, the Court can only pronounce for the Will, or for an absolute intestacy: It cannot pronounce the deceased to be dead intestate as to the residue, though the executor may eventually be considered only as a trustee for the next of kin (u). An executor codicil may named in a the Will and Where an executrix was appointed in a codicil, which gave her a legacy, and nominated her, together with an executor named in a previous Will, executors of the Will propound both and codicil, declaring it to be part of the Will, and giving codicil. them the residue in moieties, it was held that she had a right to propound both the Will and codicil, if she thought proper, though the other executor prayed probate of the Will alone, and opposed the codicil; for if the codicil was good, it was a part of the Will, and gave her an immediate interest in the Will; and if she propounded and proved the codicil alone, the next of kin might afterwards oppose the Will, and force her into a second suit, which would be unreasonable (x). Probate of a Will cannot be granted to the executor while a contest subsists about the validity of a codicil; for that being undetermined, it does not appear what is the Will, and the executor cannot take the common oath (y). Probate of a Will cannot be had during a lis pendens as to a codicil: sent. In a late case (2), however, where a question arose as to unless by conthe validity of a codicil revoking the appointment of a coexecutor, and the estate required an immediate representation, probate of the undisputed instruments was granted to the other executors, with consent of the co-executor, reserving all questions. executor. It has already appeared, that where there is a sole exe- Executor of cutor, or sole surviving executor, the office is transmissible, and his executor becomes the representative of the original (u) Sutton v. Smith, 1 Cas. temp. Lee, 275: See Spratt v. Harris, 4 Hagg. 408, 409. (x) Miller v. Sheppard, 2 Cas. temp. Lee, 506, (y) Neagle v. Castlehaven, 2 Cas. temp. Lee, 246. (z) Fowlis v. Davidson, Prerog. T. T. 1845. 4 Notes of Cas. 149. Probate of the Will of feme covert : form of such probate. testator (a); and in such a case, no new probate of the original Will is requisite (b). Where a married woman makes a Will by virtue of a power, or of property enjoyed by her separately, such Will, as there has been already occasion to show, may be admitted to probate, without the consent of her husband (c). Where the Will, sought to be established, was made by her under a power, it has been held that the instrument creating the power must be pleaded in the allegation of the executor, and exhibited (d). However, the probate of the Will of a feme covert should not be general, but limited to the property over which she has a disposing power (e). And her husband will be entitled to have a grant of administration cæterorum (f). In a modern case (g), the deceased, previously to her marriage, had certain property conveyed to trustees, with a power to her to receive the dividends and interest thereof during life, and to dispose of the principal fund by Will executed in the presence of, and attested by, two witnesses: She died, leaving her husband surviving, and having duly executed her Will according to the power, appointing executors: The question was, whether a certain sum remaining at her bankers to her credit (being her savings out of the trust dividends) was to be included in the probate: The ground on which it was contended that that did not pass, was, not that the deceased did not possess the power of disposing thereof, but that she had not disposed of it: Sir H. Jenner Fust said, that it was a question of construction, not for him to determine, and that he would grant probate to the executors limited to the settled property and all accumulations over which she had a disposing power, and which she had disposed of; and the learned Judge observed, that this was the usual and most convenient mode, in order to give parties an opportunity of making their claims elsewhere. cæterorum. So, in general cases, if the Will be limited to any specific Administratio effects of the testator, the probate shall also be so limited, and an administratio cæterorum granted (h). ing out: deposit of Will in Regis When the Will is proved, the original is deposited in the Probate makregistry (i) of the Ordinary or Metropolitan, and a copy thereof in parchment is made out under his seal, and delivered to the executor, together with a certificate of it's having been proved before him; and such copy and certificate are usually styled the probate. The following is the form of the certificate delivered to the executor in the Prerogative Court of Canterbury: "William by Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, do, by these presents make known to all men, that on the A. B. day of at London, before the Worshipful J. D., Doctor of Laws, Surrogate of the Rt. Honourable Sir J. N., Knt., also Doctor of Laws, Master Keeper and Commissary of our Prerogative Court of Canterbury, lawfully constituted, the last Will and testament of A. B. late of deceased hereunto annexed was proved, approved, and registered; the said deceased having, whilst living, and at the time of his death, goods, chattels, or credits, in (h) Went. Off. Ex. 30, 14th edit. Toller, 67. Ante, p. 334. (i) Ante, p. 90. On a late occasion, an original codicil, of which probate had been granted, containing an assignment of 10,000l. part of 15,000l. secured by a heritable bond in Scotland, was delivered out of the Registry of the Prerogative Court, in order to its being registered in VOL. I. divers dioceses, and juris Scotland, and there finally deposit- try. General formn of probate. |