Imágenes de páginas
PDF
EPUB

limited to recover certain sums, and granted jointly to the nominees of the two parties in the suit, the Court would not dispense with such administrators entering into a joint

bond (c).

(c) Stanley v. Bernes, 1 Hagg. 221. See further, as to the practice respecting the sureties to ad

ministration bonds, Bond v. Bond, 1 Cas. temp. Lee, 429. Allen v. Allen, 2 Cas. temp. Lee. 244.

476

BOOK THE SIXTH.

OF THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRA

TION, AS LONG AS THEY ARE UNREVOKED :-OF THE RE-
VOCATION OF THEM, AND OF THE CONSEQUENCES THEREOF.

CHAPTER THE FIRST.

OF THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRA

As to what facts probate, &c., is conclusive.

TION, AS LONG AS THEY REMAIN UNREPEALED. It is a legal consequence of the exclusive jurisdiction of the Ecclesiastical Courts in deciding on the validity of Wills of personalty, and granting administration, that their sentences, pronounced in the exercise of such exclusive jurisdiction, should be conclusive evidence of the right directly determined (a). Hence a probate, even in common form, unrevoked, is conclusive both in the Courts of Law (b) and of Equity (c), as to the appointment of executor, and the validity and contents of a Will, so far as it extends to personal property: and it cannot be impeached by evidence even of fraud (d).

Therefore, it is not allowable to prove that another person

(a) 1 Phill. Ev. 343. 7th edit.

(6) Noel v. Wells, 1 Sid. 359. S. C. 1 Lev. 235. 2 Keb. 337. Allen r. Dundas, 3 T. R. 125.

(c) Attorney-General v. Ryder, 2 Chan. Ca. 178.

Archer v. Mosse, 2 Vern. 8. Nelson r. Oldfield, 2 Vern. 76. Griffiths v. Hamilton, 12 Ves. 298. Jones v. Jones, 3 Meriv. 171. All the cases on this subject will be found col

lected and commented on with great ability in Hargrave's Law Tracts, p. 459, et

seq. (d) Archer v. Mosse, 2 Vern. 8. Plume v. Beale, 1 P. Wms. 388. Kerrich v. Bransby, 7 Bro. P. C. 437, 2nd edition.

S. C. 1 Eq. Cas. Abr. 133. Griffiths v. Hamilton, 1 Ves. 307. Ante, p. 42, n. (m). Post, p. 483, 484.

was appointed executor, or that the testator was insane, or that the Will of which the probate has been granted was forged: for that would be directly contrary to the seal of the Ordinary in a matter within his exclusive jurisdiction (e).

So, in Bouchier v. Taylor (f), it was decided by the House of Lords that after a sentence in the Ecclesiastical Court determining the question who are the next of kin of the intestate, and granting letters of administration to the person found to be such next of kin, the Court of Chancery is precluded from directing any issue to try that question. And this decision was held by Lord Lyndhurst, in Barr v. Jackson (g) (reversing the decree of Knight Bruce, V.C.) (h), to be a binding authority for the proposition, that if the sentence of the Ecclesiastical Court, in a suit for administration, turns upon the question of which of the parties is next of kin to the intestate, such sentence is conclusive upon that question in a subsequent suit in the Court of Chancery, between the same parties, for distribution (1).

Upon this principle it was decided, in a modern case, that payment of money to an executor, who has obtained probate of a forged Will, is a discharge to the debtor of the deceased, notwithstanding the probate be afterwards declared null in the Ecclesiastical Court, and administration be granted to the intestate's next of kin (k) : for if the executor had brought an action against the debtor, the latter could not have controverted the title of the executor, as long as the probate was unrepealed; and the debtor was not obliged to wait for a suit, when he knew that no defence could be made to it (I).

(e) Noel v. Wells, ubi supra. from the proceedings in the cause, (f) 4 Bro. C. C. 708, Toml. edit. hat A. B. was illegitimate, the (9) 1 Phill. C. C. 582.

Court refused to pay the fund to (h) 1 Y. & Coll. C. C. 585. the administratrix, but directed it

(i) In Long v. Wakeling, 1 to be carried over to a separate Beav. 400, where A. B. being account, with directions that it entitled to a fund in Court, died, should not be paid out of Court and administration was granted to a

without notice to the crown. person, as “the natural and lawful (k) Allen v. Dundas, 3 T. R. 125. sister” of A. B.; and it appeared (1) 3 T. R. 129. Where, how

When there is a question, whether particular legacies given by a Will are cumulative or substituted, it is often determined by the circumstance of the bequests having been given by distinct instruments (m). In such a case, if probate has been granted, as of a Will and codicil, this is conclusive of the fact of their being distinct instruments, though written on the same paper (n).

The probate is also conclusive as to every part of the Will in respect of which it has been granted : for example, in Plume v. Beale (0), where an executor proved a Will of personal property, and then brought a bill in equity to be relieved against a particular legacy, on the ground of its having been interlined in the Will by forgery, Lord Cowper dismissed the bill with costs, observing, that the executor might have proved the Will in the Ecclesiastical Court, with a particular reservation as to that legacy (p).

But though Courts of Equity are bound to receive, as testamentary, a Will, in all its parts, which has been proved in the proper Spiritual Court, yet they may, in certain cases, affect with a trust a particular legacy or a residuary bequest, which has been obtained by fraud (q). For instance, if the drawer of a Will should fraudulently insert his own name, instead of that of a legatee, he would be considered in equity as a trustee for the real legatee (r). And it has never been thought that Courts of Equity, by declaring a trust, in

In what cases a Court of Equity will interfere.

a

ever, a sum of stock was standing
in the name of a testatrix, which
her executors overlooked, and, the
dividends remaining unclaimed,
the stock was transferred to the
National Commissioners; and af-
terwards, "one Sanders procured a
probate in the name of T. Hunt,
of a forged Will of the testatrix,
and obtained a transfer; it was
held by Lord Langdale, M. R.,
that the probate did not authorise
a payment to Sanders, and that a
party giving faith to the probate

was bound to see that the person claiming under it was a real T. Hunt: Ex parte Jolliffe, 8 Beav. 168.

(m) See infra, Pt. III. Bk. III. Ch. 11. § VII.

(n) Baillie v. Butterfield, 1 Cox, 392.

(0) 1 P. Wms. 388.
(p) See ante, p. 330, 331.
(9) Mitf. Plead. 257, 4th edit.

(r) Marriot v. Marriot, 1 Stra. 666. S. C. Gilb. Eq. Rep. 203. Mitf. Pl. 258, 4th edit. See post,

[ocr errors]
[ocr errors]
[ocr errors][ocr errors]

such cases, infringed upon the jurisdiction of the Ecclesiastical Courts (s).

Again, although it is now settled that a Will cannot, either before or after probate, be set aside in equity, on the ground that the Will was obtained by fraud on the testator, yet where probate has been obtained by fraud on the next of kin, a Court of Equity will interfere, and either convert the wrong-doer into a trustee, in respect of such probate, or oblige him to consent to a repeal or revocation of it in the Court in which it was granted (t). Thus in Barnesly v. Powell (u), the bill sought to be relieved against a paper writing, purporting to be the Will of the plaintiff's father, under which the defendant, Mansel Powell, claimed, and which was not without evidence to support it, although there was strong suspicion of forgery : It was also to be relieved against several acts of the plaintiff since his father's death; such as the decree of the Court of Exchequer against him, and a sentence in the Prerogative Court, wherein the plaintiff's consent to establish p. 484, note (e). So in Segrave personal estate given him by a Will v. Kirwan, 1 Beat. 157, the exe- prepared by himself, where he has cutor, who was a barrister, had improperly taken advantage of the himself prepared the Will, the testator's ignorance, or allowed him rule of law at that time being, to remain under a mistaken impresthat the executor was entitled to the sion which influenced the gift : residue unless otherwise disposed of Hindson v. Weatherill, 1 Sm. & G. or unless a legacy was bequeathed 609. But this decision was reversed to him. (See post, Pt. 111. Bk. III. on appeal, on the facts, the Lords Ch. v. $ 11.) And Sir A. Hart held Justices declining to give any opithat it was the duty of the exe- nion on the law of the case : Lord cutor to have informed the testator Justice Turner, however, distinthat such was the rule, and that he guished it from Segrave v. Kirwan, could not be allowed to profit from observing that in that case the testhis omission, but must be decreed tator had no intention to benefit to be a trustee for the next of kin. Kirwan the counsel: 5 De G. M. See also Bulkeley v. Wilford, 2 C1. & G. 301. & F. 102. S. C. 8 Bligh. 111. It (s) 1 Stra. 673. Gilb. Eq. Rep. was held by Sir J. Stuart, V.C. (not- 209. Fonbl. Eq. Bk. 4, Pt. 2, c. withstanding the case of Allen v. 1, s. 1, n. (a). McPherson, post, p. 482, et seq.), (1) Mitf. Pl. 257, 4th edition. that the Court, under its equitable (u) 1 Ves. Sen. 119, 281, 287. jurisdiction, has authority to declare 2 Roper. Leg. 688, 3rd edition ; an attorney a trustee for the heir at recognised by Lord Cottenham in law and next of kin of real and Price v. Dewhurst, 4 M. & Cr. 85.

[ocr errors][ocr errors]
« AnteriorContinuar »