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The order should be directed to the Registrars of the Ecclesiastical Court, and the security approved by the Master in Chancery (m). If it should be doubtful whether some part of the property where it is
doubtful whebe freehold, the Ecclesiastical Court has always held, that ther all the it ought to grant probate ; for the obvious reason that the property is
freehold, proprobate may be necessary to the purposes of justice, and no bate ought to
be granted. evil can arise from the grant of it (n).
Where a Will is made in execution of a power, if it relates When probate to personalty, it must be proved in the Spiritual Court (o). Will nade in
execution of a There has already been occasion to show that this has been determined, in regard to an appointment by the Will of a married woman, which, it is now settled, the Courts of Equity will not read, until it has been duly proved as a proper Will in the Ecclesiastical Court (p). But though a Court of Equity cannot give effect to testamentary papers without probate, it may, perhaps, when necessary, order an enquiry for the very purpose of sending such papers to be proved (9)
However, a Will, simply in execution of a power affecting realty, and not even appointing an executor, will be dealt with in Chancery without the interference of a Spiritual Court (0)
Where a testatrix had a power of appointment, and a general probate of her Will of 1829, and codicil thereto, had been granted, the Delegates, reversing a decree of the Prerogative, held that the Court of Probate could not also grant an administration, with a Will of 1815 and codicils annexed, limited to become a party to proceedings in Equity touching the execution of the power by such Wills; but
(m) Qualey ». Qualey, 4 Madd. 213: but see 1 Atk. 627.
(n) By Sir John Nicholl, in Thorold v. Thorold, 1 Phillim.' 8, 9: See also the case of Durkin v. Johnstone, Prerog. 1796, decided by Sir W. Wynne, and reported in a note to 1 Phillim. 8.
(0) See Sugd. on Pow. 21, 6th
edition. Tattnall v. Hankey, 2
(P) Ante, p. 50, 336.
(2) See Brenchley v. Lynn, 2 Robert, 458, et seq., by Dr. Lushington,
(r) Per Bayley, B., 4 Hagg. 64.
must itself decide whether the Will of 1815 was, under the circumstances, revoked by the Will of 1829, and thereupon grant either a probate of the Will and codicil of 1829 alone, or a probate of those papers and of the Will of 1815 and its
codicils, as together containing the Will (8). Probate of In Pelham v. Newton (t), a testatrix directed her executors sealed packets directed by the to deliver certain parcels sealed up, and directed to certain Will to be delivered un- persons, which were in a small iron chest, to the
to opened to
whom they were directed, unopened, and desired those perlegatees.
sons would not tell one another what was contained in their respective papers : Sir G. Lee was of opinion that the executors could not safely deliver them unopened; for if they should be called to an Inventory, they could not give in one on oath, without knowing what was contained in those parcels; and if they assented to them as legacies, and there should not be assets sufficient to pay the debts, they would be guilty of a derastavit : The learned Judge therefore decreed those parcels to be opened in the presence of the Registrar, to see what was contained in them: they were accordingly opened in Court, and they contained bank-notes, some of 201., and some of 301. each, of which a schedule was made, of the names of the persons, and of the sum contained under each person's name, to be added as a codicil to the Will : and probate was decreed of the Will, and all the
aforesaid papers, to the executors. Instruments of In Inchiquin v. French (t), Lord Thomond by his Will which probate is not neces.
gave 20,000l. to Sir William Wyndham; and by a deed poll sary :
of the same date, which referred to his Will, he declared, Declaration of that the legacy was given to him upon trust for Lord Clare:
Sir William Wyndham died in the testator's lifetime, and the deed poll was not proved: The question was, whether, though the legatee named in the Will had died before the testator, the person, who was the cestui que trust of the legacy, and was substantially the legatee, was entitled to the
(3) Hughes v. Turner, 4 Hagg. 30. See also Brenchley v. Lynd, 2 Robert. 441. Ante, p. 153.
(1) 2 Cas. temp. Lee, 46.
20,0001. under the deed poll, which had not been proved as a testamentary paper: Lord Hardwicke held, that the deed poll, though never proved, sufficiently declared the trusts of the legacy of 20,0001., and decreed accordingly.
In Smith v. Attersoll (x), a testator bequeathed a legacy to A. and B., in trust for certain purposes, which the Will stated to have been fully explained to them; on the same day a paper writing was signed by A. and B. in which they declared that the bequest was upon trust for six persons, whose names were stated; and after their signature, some lines were added in the handwriting of the testator, by which a seventh person (an unborn child) was admitted to a share of the legacy : Upon a bill, filed by one of the six persons named in the body of the paper writing, Lord Gifford, M. R., l'ecognised the paper writing as a valid declaration of trust, though it had not been proved as a testamentary paper.
From the decisions which have taken place, it is quite A Will apclear that it is not necessary that a Will appointing testa- mentary guar.
pointing testa mentary guardians should be proved in the Ecclesiastical dians : Court (y). Nor is it necessary to prove a Will in the Spiritual Court, A Will giving
legacies out of to entitle a legatee to recover a legacy out of real estate (z). real estate :
As a Court of Equity considers money directed to be laid or disposing of out in land, as land, the Ecclesiastical Courts have no juris- to be laid ont
in land. diction over a devise disposing of property so converted (a).
() 1 Russ. Chanc. Cas. 266.
(y) Gilliat v. Gilliat, 3 Phillim. 222. Lady Chester's case, 1 Ventr. 207.
(z) Tucker v. Phipps, 3 Atk. 361.
(a) By Lord Hardwicke, in Pullen v. Ready, 2 Atk. 590.
11 G. IV. c. if the party making such letter of attorney or Will shall then 20.
reside at any other place in Great Britain or Ireland, or in Guernsey, Jersey, Alderney, Sark, or Man, by a justice of the peace, or by the minister or officiating minister or curate of the parish or place in which the same shall be executed, or, if the party making the same shall then reside in any other part of his Majesty's dominions, or in any colony, &c., by some commission or warrant officer or chaplain of the navy, or commission officer of marines, or the commissioner of the navy, or naval storekeeper at one of the naval yards, or a minister of the church of England or Scotland, or a magistrate or principal officer residing in any of such places respectively, or, if the party making the same shall then reside at any place not within his Majesty's dominions or any of the places last mentioned, by the British consul or vice-consul, or some officer having a public appointment or commission, civil, naval, or military, under his Majesty's government, or by a magistrate or notary public of or near the place where such letter of attorney or Will shall be executed; that Wills shall not be contained, printed, or written in the same instrument, paper, or parchment with powers of attorney; and that the inspector of seamen's Wills may pass the same if it shall appear to the satisfaction of the treasurer of the navy, that, in the attestation thereof, the captain's signature has been omitted by accident or
inadvertence. Wills, &c., Sect. 49, provides that letters of attorney or Wills made made by prisoners of war. by any petty officer, or seaman, non-commissioned officer of
marines, or marine, while a prisoner of war, shall be valid, provided it shall have been executed in the presence of and be attested by some commission officer of the army, navy, or royal marines, or by some warrant officer of his Majesty's navy, or by a physician, surgeon, or assistant surgeon in the army or navy, agent to some naval hospital, or chaplain of the army or navy, or by any notary public.
Sect. 50. Letters of attorney and Wills to be noted in the visions.
monthly muster books or returns.
Sect. 51. Letters of attorney and Wills to be examined 11 G. IV, c.
20, by the inspector of seamen's Wills, before they are acted upon or put in force.
Sects. 55, 58, 59, 60, regulate the mode by which probate is to be obtained, subject to an alteration introduced by stat. 2 & 3 Wm. IV. c. 40, s. 33. Sect. 61 (as altered by stat. 2 & 3 Wm. IV. c. 40, ss. 14, 15, and the schedule thereto annexed) limits the expense of probates. Sect. 62, imposes penalties upon officers of the Ecclesiastical Court for offences against the Act. Sect. 69 (as amended by stat. 2 & 3 Wm. IV. c. 40, ss. 12, 13, and stat. 4 & 5 Wm. IV. c. 25, s. 8), provides for the payment without probate of sums not exceeding 201. payable on account of wages, prize-money, &c., for services of deceased petty officers, seamen, &c., and not exceeding 32. on account of pay, half-pay, or pensions, of any deceased officer, or widow of an officer, &c. Sect. 74, provides for the transmission of letters, &c., free of postage. Sect. 81, extends the provisions of the Act, so far as applicable, to the marines. Sect. 81, provides for the punishment of parties personating any commission, warrant, or petty officer, seaman, &c. Sect. 85, for taking false oaths in order to obtain probate, &c. Sect. 86, for subscribing false petitions for probate; and sects. 87, 88, for forging certificates, &c., or uttering false vouchers.