-. /'■ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY op JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 778. W72 1877 V.I A treatise on the law of executors and a 3 1924 018 827 430 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018827430 A TREATISE OK THE LAW OF Executors and Administrators. BT THE EIGHT HONORABLE SIE EDWAED VAUGHAN WILLIAMS, LATB ONE OP THE JODGfES OP HEE MAJESTY'S COURT OP cSmMON FLEAS. SEVENTH EDITION. BY THE EIGHT HONOEABLE SIR EDWARD VAUGHAN "WILLIAMS, WALTER V. VAUGHAN WILLIAMS, ESQ. OP THE INNER TEMPLE, BARRISTER AT LAW. SIXTH AMERICAN -EDITION, m WHICH THE SUBJECT OF WILLS IS PARTICULARLY DISCUSSED AND ENLARGED UPON. By J. 0. PERKINS, LL. D. . IN THREE VOLUMES. VOL. I. PHILADELPHIA: KAY & BROTHER, 17 AND 19 SOUTH SIXTH STREET, JLato JSooitScneriS, puSltSjersi, anU importers. 1877. Entered, according to Act of Congress, in the year 1877, by J. C. PERKINS, In the Office of the Librarian of Congress, at Washington. KIVEIlaiBE, OAMBEIDSI: PRINTED BT H. o. HOUOHTON AND OOMPAKT To i c }■ 4he right .pONORA^;^ » , 1 > * ■.- . •■. • .. -^ LORD HATHERLET,' THIS EDITION OF A TREATISE ON THE LAW OF EXECUTORS AND ADMINISTRATORS IS INSCRIBED, IN TESTIMONY OF THEIR RESPECT AND ADMIRATION, May 12, 1873. THE EDITORS. ADVERTISEMENT With regard to the construction of wills of real estate, no book has yet appeared or probably for a long time will ap- pear, either in England or in this country, to occiipy the entire field covered by the great and classical work of Mr. Jarman. But the scheme and structure of that work, involving as they do the statement of cases at length, render it difficult to multiply editions of it even in England, and, of course, more difficult here. This, at least in part, will account for the fact that no edition of it has been published in Eng- land since the third, in 1861, and no American edition since 1859. In view of these circumstances, and in order to adapt this work of Mr. Justice Williams more fully to the re- quirements of the legal profession in the United States, and to render it more generally and practically useful here, it has been deemed expedient very much to extend the scope of the American notes, more especially, by enlarging and expanding in them the treatment of 'the subject of wills, including, of course, whatever relates to the capacity and competency of testators, the exigencies of the execution of wills, all matters pertaining to the probate of them, and to their construction ; and the evidence which is admis- sible and has been adniitted in judicial investigations of these topics ; and it is intended thereby that these three volumes shall furnish a complete treatise on the law of Wills, as well as on the law of Executors and Administra- yi ADVERTISEMENT. tors. In fact, it would now be quite as appropriate to style the treatise a work on Wills and Administrations, as to apply to it the name it now bears. The editor has endeavored to increase the facilities for examining the contents of the work by adding largely to the index and referring therein to the matter of the notes as well as to that of the text. The table of cases contains nearly ten thousand citations in addition to those embraced in the English edition. The large increase in the volume of American notes, both on the subject of wills and on the other topics discussed, and these additions to the index and table of cases, has rendered it imperative that the work should be published in three volumes, instead of two as heretofore. With these suggestions this sixth American from the seventh and last English edition of Williams on the Law of Executors and Administrators is respectfully submitted to the use and indulgence of the legal profession By J. C. Perkins. PHEFACl! TO THB SEVET^TH EDITIOT^. The number of cases concerning the law of Executors and Administrators which have arisen, especially in the court of probate, since the last edition of this Treatise, has necessarily increased the bulk of the book considerably. No material alteration, however, in the law with respect to executors and administrators has taken place since the publication of the sixth edition, with the exception of the statute 32 & 33 Vict. c. 46, which abolishes, after the year 1870, the distinction, with regard to the priority of pay- ment of debts, between specialty and simple contract debts. E. V. W. W. V. V. W. May 12, 1873. PREFACE TO THE SIXTH EDITION. As the statute 1 Vict. c. 26 {Ad for the amendment of the latps with respect to mils) is intimately connected with some of the subjects of the following work, it has been deemed advisable to prefix thereto the whole of the act, verbatim, with reference to those parts of the Treatise which have relation to, or are affected by, the respective enact- ments. It must be borne in mind, that the statute (see sect. 34) does not extend to any wills made before the 1st January, 1838. (a) Since the earlier editions of this Treatise, several statutes have been passed which have rendered extensive altera- tions necessary in that portion of it which is contained in the 1st and 2d Books of the 5th Part, and relates to reme- dies for and against executors and administrators in equity. These alterations I have intrusted to the care of my friend Mr. Herbert Fisher. (a) See infra, pp. 129, 203, 204, as to the construction of this clause. PREFACE. IX THE STATUTE 1 VICT. c. 26. n Act for the amendment of the Laws with respect to Wills. \ [3d July, 1837.] Be it enacted, that the words and expressions hereinafter .men- tioEed, which in their ordinary signification have a more Meaning of connped or a different meaning, shall in this act, except ^^J'^™„ wher\ the nature of the provision or the context of the ti"s act : act shall exclude such construction, be interpreted as follows : (that is to say), the word "will" shall extend to a tes- „^i,.„ tament, and to a codicil, and to an appointment by will or by wrting in the nature of a will in exercise of a power, and also to a (^sposition by will and testament or devise of the cus- tody and tVition of any child, by virtue of an act passed in the twelfth yea\ of the reign of King Charles the Second, 12 Car. 2, intituled AiT'.act for taking away the court of wards "' ' and liveries md tenures, in capite and hy knights service, and purveyance, ant for settling a revenue upon his majesty in lieu thereof, or by vii^tue of an act passed in the parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled An act for tahing away the Car. 2 court of wards ari\ liveries and tenures, in capite and hy knights service, end to any other testamentary disposition ; and the words "real estale" shall extend to manors, advow- "Eeaies- sons, messuages, land^y tithes, rents, and hereditaments, **'®'" whether freehold, cust^ary freehold, tenant right, customary or copyhold, or of any otr^r tenure, and whether corporeal, incor- poreal, or personal, and o any undivided share thereof, and to any estate, right, or intere^ (other than a chattel interest) therein ; and the words " personal eSjate " shall extend to lease- "Personal hold estates and other chatt^g real, and also to moneys, ®^'*'®' shares of government and otter funds, securities for money (not being real estates), debts, chofgs in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and t> any share or interest therein ; and every word importing the singuar number only shall JT^^,^,g^. extend and be applied to several peieons or things as well X PBEFACE. as one person or thing ; and every word importing the masculine Gender: gender only shall extend and be applied to a female as well as a male. II. And be it further enacted, that an act passed in the thirty- second year of the reign of King Henry the Eighth, the statutes intituled The act of wills, wards, and primer seisins, Hen. 8,'c. wlierely a man may devise two parts of Ms land ; and \ 35 H^n. ^Iso an act passed in the thirty-fourth and thirty-fifth 8, c. 5. years of the reign of the said King Henry the Eigath, intituled TJie bill concerning the explanation of wills ; and also an act passed in the parliament of Ireland, in the tenth sess. 2, c' year of the reign of King Charles the First, intituted An act how lands, tenements, ^c. may ie disposed by will or otherwise, and concerning wards and primer seisins ; ani also so Sects. 5,6, niuch of an act passed in the twenty-ninth year of the 21, & bl^of reign of King Charles the Second, intituled .in act for thestatate prevention of frauds and perjuries, and of a» a-ct passed 29 Car. 2, in the parliament of Ireland in the seventh year of the 3^ c' 12 ' reign of King William the Third, intitulei An act for prevention of frauds and perjuries, as reMes to devises or bequests of lands or tenements, or to the revocation or alter- ation of any devise in writing of any lands, teniments, or here- ditaments, or any clause thereof, or to the de-rise of any estate pur autre vie, or to any such estates being assets, or to nuncu- pative wills, or to the repeal, altering, or charging of any will in writing concerning any goods or chattels or personal estate, or any clause, devise, or bequest therein; anc also so much of an t 14 of ^°* passed in the fourth and fifth years of the reign of 4&5Anne, Queen Anne, intituled An act fr the amendment of the law and the better advancement of justice, and of an act passed in the parliament of Ireland in tie sixth year of the reign 6 Anne, c. of Queen Anne, intituled An act for the amendment of ^^ '•''■ the law and the better advancement of justice, as relates to witnesses to nuncupative wills; and also so much of an act passed in the fourteenth yrar of the reign of King George 14 G. 2, c. the Second, intituled Ar act to amend the law concern- ing common recoveries, md to explain and amend an act made in the twenty-ninth year^f the reign of King Oharles the Second, intituled ^'•An act for p-evention of frauds and perjuries,'" as relates to estates pur autn vie ; and also an act passed in the PREFACE. XI twenty-fifth year of the reign of King George the Second, inti- tuled An act for avoiding and putting an end to certain 25 g. 2, c. doubts and questions relating to the attestation of wills as't^colo- and codicils concerning real estates in that part of Great °i«s). Britain called England, and in his majesty's colonies and planta- tions in America, except so far as relates to his majesty's colonies and plantations in America ; and also an act passed in the par- liament of Ireland in the same twenty-fifth year of the 25 G. 2, i>. reign of King George the Second, intituled An act for ^^ ' ^' the avoiding and putting, an end to certain doubts and questions relating to the attestations of wills and codicils concerning real es- tates ; and also an act passed in the fifty-fifth year of the 55 g. 3, reign of King George the Third, intituled An act to re- '^' ^^^' move certain difficulties in the disposition of copyhold estates by will, shall be and the same are hereby repealed, except so far as the same acts or any of them respectively relate to any wills or estates pur autre vie, to which this act does not extend. III. And be it further enacted, that it shall be lawful for every person to devise, bequeath, or dispose of, by his will ex- ah prop- ecuted in manner hereinafter required, all real estate te'disposed and all personal estate (a) which he shall be entitled "* ^y ^i"' to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became en- titled by descent, of his ancestor, or upon his executor or admin- istrator ; and that the power hereby given shall extend comprising to all real estate of the nature of customary freehold or freehddF' tenant right, or customary or copyhold, notwithstanding ^oi^s witii- that the testator may not have surrendered the same to ™' surren- •J ^ ^ ^ der and be- the use of his will, or notwithstanding that, being en- foreadmit- ,. . -I • t tance, and titled as heir, devisee, or otherwise, to be admitted also such of thereto, he shall not have been admitted thereto, or not- cannot now withstanding that the same, in consequence of the want •'^ devised; of a custom to devise or surrender to the use of a will or other- wise, could not at law have been disposed of by will if this act had not been made, or notwithstanding that the same, in conse- quence of there being a custom that a will or a surrender to the use of a w^U should continue in force for a limited time only, or any other special custom, could not have been disposed of by (o) See infra, p. 5. XU PREFACE. will according to the power contained in this act, if this act had estates ^Mj- not been made; and also to estates pur autre vie,(F) autre vie: ^\^q^i^qj. there shall or shall not be any special occupant thereof, and whether the same shall be freehold, customary free- hold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal contingent hereditament ; and also to all contingent, executory, or interest; other future interests in any real or personal estate, (e) whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instru- ment by which the same respectively were created or under any . disposition thereof by deed or will ; and also to all rights entry and of entry for Conditions broken, and other rights of entry ; acquired and also to such of the same estates, interests, and rights cutbn^r respectively, and other real and . personal estate as the tiie will. testator may be entitled to at the time of his dgath, not- withstanding that he may become entitled to the same subse- quently to the execution of his will, (c?) IV. Provided, always, and be it further enacted, that where As to the ^-"^y ^®^^ estate of the nature of customary freehold or fees and tenant right, or customary or copyhold, might by the able by custom of the manor of which the same is holden, have customary been Surrendered to 'the use of a will, and the testator hoid'es-^' shall not have surrendered the same to the use of his will, tates. jjQ person entitled or claiming to be entitled thereto by virtue of such will, shall be entitled to be admitted, except upon payment of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of the surrendering of such real estate to the use of the will, or in respect of present- ing, registering, or enrolling such surrender, if the same real estate had been surrendered to the use of the will of such testator: Provided also, that where the testator was entitled to have been admitted to such real estate, and might if he had been admitted thereto, have surrendered the same to the use of his will, and shall not have been admitted thereto, no person entitled or claiming to be entitled to such real estate in consequence of such will shall be entitled to be admitted to the same real estate by virtue (6) See infra, p. 686. {d) See infra, pp. 6, note (d), 220. (c) See infra, p. 887 et seq. PREFACE. xiii thereof, except on payment of all such stamp duties, fees, fine, and sums of money as would have been lawfully due and payable in respect of the admittance of such testator to such real estate, and also of all such stamp duties, fees, and sums of money as would have been lawfully due and payable in respect of surren- dering such real estate to the use of the will, or of presenting, registering, or enrolling such surrender, had the testator been duly admitted to such real estate, and afterwards surrendered the same to the use of his will ; all which stamp duties, fees, fine, or sums of money due as aforesaid shall be paid in addition to the stamp duties, fees, fine, or sums of money due or payable on the admit- tance of such person so entitled or claiming to be entitled to the same real estate as aforesaid. V. And be it further enacted, that when any real estate of the nature of customary freehold or tenant right, or cus- ^ju^ ^^ tomary or copyhold, shall be disposed of by will, the lord extracts of of the manor or reputed manor of which such real estate customary is holden" or his steward, or the deputy of such steward, to be en- shall cause the will by which such disposition shall be thcTcourt made, or so much thereof as shall contain the disposition '^°"^' of such real estate, to be entered on the court rolls of such manor or reputed manor ; and when any trusts are declared by the will of such real estate, it shall not be necessary to enter the declara- tion of such trusts, but it shall be sufiicient to state in the entry on the court rolls that such real estate is subject to the trusts declared by such will ; and when any such real estate could not and the have been disposed of by will if this act had not been e"titfed^oJ made, the same fine, heriot, dues, duties, and services *® ^^™^ ', _ ' ' ' ' fine, &c. shall be paid and rendered by the devisee as would have when such 1 IP 1 • • i-iT estates are been due from the customary heir in case oi the descent not now of the same real estate, and the lord shall as against the as he devisee of such estate have the same remedy for re- ^°"g j^^g^ covering and enforcing such fine, heriot, dues, duties, ^e"™*®^ and services as he is now entitled to for recovering and »* descent. enforcing the same from or against the customary heir in case of a descent. VI. And be it further enacted, that if no disposition by will shall be made of any estate pur autre vie of a freehold Estates »«»• nature, the same shall be chargeable in the hands of the ""*'"'' "'«• heir, if it shall come to him by reason of special occupancy, as XIV PREFACE. assets by descent as in the case of freehold land in fee simple ; and in case there shall be no special occupant of any estate pur autre vie, whether freehold or customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or ad- ministrator either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate, (e) VII. And be it further enacted, that no wiU made by any person under the age of twenty-one years shall be valid. (/) VIII. Provided also, and be it further enacted, that no will made by any married woman shall be valid, ex- cept such a will as might have been made by a married woman before the passing of this act. (jg~) IX. And be it further enacted, that no will shall be valid unless it shall be in writing and executed in manner No will of a person un- der age ralid ; □or of a feme cov- ert, ex- cept such as might now be made. Every will shall be in writing, fi'i^is^e'i hereinafter mentioned ; (K) (that is to say), it shall be tator in the signed at the foot or end thereof by the testator, or by of two some other person in his presence and by his direction ; witMsses ^^^ such signature shall be made or acknowledged by time. ^jjg testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. X. And be it further enacted, that no appointment made by will, in exercise of any power, shall be valid, unless the same be executed in manner hereinbefore required ; and every will executed in manner hereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly re- quired that a will made in exercise of such power should be executed with some additional or other form of execu- tion or solemnity. Appoint- ments by will to be executed like other wills, and to be valid, although other re- quired so- lemnities are not ob- served. (c) See infra, p. 1974 et seq. (/)See infra, pp. 15, 16. {g) See infra, p. 52 et s (h) See infra, p. 67 et i PREFACE. XV XI. Provided always, and be it further enacted, that any soldier being in actual military service, or any mar- goijigjj. iner, or seaman being at sea, may dispose of his personal ^^^ ™"- estate as he might have done before the making of this excepted, act. (i) XII. And be it further enacted, that this act shall not prej- udice or affect any of the provisions contained in an act ^^^ ^^^ ^^ passed in the eleventh year of the reign of his maiesty f^^^' c«r- ^ ^ •' ° . toi" pro- King George the Fourth, and the first year of the reign visions of of his late majesty King William the Fourth, intituled An & i w.' 4, act to amend and consolidate the laws relating to the pay respect to of the royal navy, respecting the wills of petty officers petty °offi- and seamen in the royal navy, and non-commissioned cersand •^ . •' _ seamen officers of marines, and marines, so far as relates to their and ma- wages, pay, prize money, bounty money, and allowances, or other moneys payable in respect to services in her majesty's navy. (Jc) XIII. And be it further enacted, that every will executed in manner hereinbefore required shall be valid without Publication any other publication thereof. reVisite! XIV. And be it further enacted, that if any person who shall attest the execution of a will shall at the time Will not to of the execution thereof or at any time afterwards be account of incompetent to be admitted a witness to prove the ex- tenoy of at- ecution thereof, such will shall not on that account be ^^^^^ ^" invalid. XV. And be it further enacted, that if any person shall attest the execution of any will to whom or to whose wife or gifts to an husband any beneficial devise, legacy, estate, interest, ^"n^e" to gift, or appointment, of or affecting any real or per- ^^ ^o'^- sonal estate (other than and except charges and directions for the payment, of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove (i) See infra, p. 116 et seq. (k) See infra, p. 395 et seq. XVI PREFACE. the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment, mentioned in such v^riU. (0 XVI. And be it further enacted, that in case by any will any Creditor ^^^^ °^ personal estate shall be charged with any debt or attesting to debts, and any creditor, or the wife or husband of any be admit- ' , , , . , n i m i ted a wit- creditor, whose debt is so charged, shall attest the execu- tion of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the excution of such will, or to prove the validity or invalidity thereof. XVII. And be it further enacted, that no person shall, on Executor account of his being an executor of a will, be incompe- mittedl' *^^* *'° ^® admitted a witness to prove the execution of witness. such will, or a witness to prove the validity or invalidity thereof. XVIII. And be it further enacted, that every will made by Will to be a man or woman shall be revoked by his or her mar- revoked by , ^ -J marriage, riage (ot) (except a will made in exercise of a power of appointment, when the real or personal estate thereby ap- pointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the statute of distribu- tions.) No will to XIX. And be it further enacted, that no will shall be rooked ^g revoked by any presumption of an intention on the sumption, ground of an alteration in circumstances, (w) XX. And be it further enacted, that no will or codicil, or any No will to part thereof, shall be revoked otherwise than as afore- but''by°an-'^ ®^^*^' °^ ^^ another will or codicil executed in manner l^^^^^il hereinbefore required, or by some writing declaring an or by a intention to revoke the same, and executed in the man- ecuted like ner in which a will is hereinbefore required to be ex- Sru"^^ ecuted, or by the burning, tearing, or otherwise de- ''°°- stroying the same by the testator, or by some person in his presence and by his direction, with the intention of revok- ing the same, (o) XXI. And be it further enacted, that no obliteration, inter- lineation, or other alteration made in any will, after the execution (l) See infra, pp. 1053, 1054. (n) See infra, p. 204 et seq. (m) Seein/ra, pp. 201, 202. (o) See infra, p. 127 et seq. PEEFACE. XVXl thereof, shall be valid or have any effect except so far as the words or effect of the will before such alteration shall No aitera- not be apparent, unless such alteration shall be exe- win shall cuted in like manner as hereinbefore is required for the eg^t™^ execution of the will ; but the will, with such altera- '^^^ ?^«- tion as part thereof, shall be deemed to be duly executed will. if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and writ- ten at the end or some other part of the wUl. (j5) XXII. And be it further enacted, that no will or codicil or any part thereof, which shall be in any manner revoked, ^^ ^j,j ^.^ shall be revived otherwise than bv the reexecution vokedtobe thereof, or by a codicil executed* in manner hereinbefore otherwise required, and showing an intention to revive the same ; execution and when any will or codicil which shall be partly re- torevive'^' voked, and afterwards wholly revoked, shall be revived, ''" such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an in- tention to the contrary shall be shown, (^q) XXIII. And be it further enacted, that no conveyance or other act made or done subsequently to the execution of A devise a will of or relating to any real or personal estate there- rendered in comprised, except an act by which such will shall be iE,y''any^3ub- revoked as aforesaid, shall prevent the operation of the sequent ■*■ , ■*• , convey- will with respect to such estate or interest in such real anceoract. or personal estate as the testator shall have power to dispose of by will at the time of his death, (r) •■ XXIV. And be it further enacted, that every will shall be construed, with reference to the real estate and personal ^^jjigij^u estate comprised in it, to speak and take effect as if it be con- had been executed immediately before the death of the speak hom testator, unless a contrary intention shall appear by the of the tes- • 1] y- \ tator. Will, (s) XXV. And be it further enacted, that, unless a contrary in- tention shall appear by the will, such real estate or in- A residn- , ,, , . , • i 1 T i. 1 '"■y devise terest therein as shall be comprised or intended to be ahail in- (p) See injra, p. 144 et seg. (r) See infra, p. 1330. (?) See infra, p. 205 et seg. (s) See infra, pp. 220, 221, 1331, 1436. VOL. 1. b xviii PREFACE. ciudees- comprised in any devise in such will contained, which prised'in" shall fail or be void by reason of the death of the devisee ™^d de-"^ in the lifetime of the testator, or by reason of such '''^^^' devise being contrary to law or otherwise incapable of taking eif ect, shall be included in the residuary devise (if any) contained in such will. XXVI. And be it further enacted, that a devise of the land of enerai *^® testator, Or of the land of the testator in any place deyise of or in the occupation of any person mentioned in his will, tor's lands or otherwise described in a general manner, and any dudecopy- Other general devise which would describe a customary, lelsehoUL copyhold, or leasehold estate if the testator had no free- as well as j,q1^ estate which could be described by it, shall be con- freehold 111 11 1 1 J lands. strued to include the customary, copyhold, and leasehold estates of the testator, or his customary, copyhold, and leasehold estates, or any of them, to which such description shall extend, as the case may be, as well as freehold estates, unless a contrary in- tention shall appear by the will. XXVII. And be it further enacted, that a general devise of A general the real estate of the testator, or of the real estate of the gift shall . . . » include testator m any place or m the occupation of any person over which mentioned in his will, or otherwise described in a general has'agen^"^ manner, shall be construed to include any real estate, or era! power ^jjy j-g^]^ estate to which such description shall extend of appoint- •' _ ^ ment. (as the case may be), which he may have power to ap- point in any manner he may think proper, and shall operate as ail execution of such power, unless a contrary intention shall appear by the will ; and in like manner a bequest of the per- sonal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include- any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall ap- pear by the will. XXVIII. And be it further enacted, that where any real A devise estate shall be devised to any person without any words any words of limitation, such devise shall be construed to pass the tion'Thaii fee simple, or other the whole estate or interest which be con- ^jjg testator had power to dispose of by will in such real PREFACE. XIX estate, unless a contrary intention shall appear by the strued to will. fee. XXIX. And be it further enacted, that in any devise or be- quest of real or personal estate the words " die without ^^ . ,. . , , ^ The words issue, or "die without leaving issue," or "have no "diewith- ,, ., 1 1 • 1 . . , out issue," issue, or any other words which may import either a or " die want or failure of issue of any person in his lifetime or ka^ngis- at the time of his death, or an indefinite failure of his belon-'^*^' issue, shall he construed to mean a want or failure of ^'■'"^'^ '" 1 . . . mean die issue m the lifetime or at the time of the death of such without is- person, and not an indefinite failure of his issue, unless a atVe""^ contrary intention shall appear by the will, by reason of ^* ■ ' ' such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise : Provided, that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age or other- wise answer the description required for obtaining a vested estate by a preceding gift to such issue. XXX. And be it further enacted, that where any real estate (other than or not being a presentation to a No devise church) shall be devised to any trustee or executor, such or execu-^^ devise shall be construed to pass the fee simple or other ^°^h j^'^ the whole estate or interest which the testator had power *^'''" "f ^ _ presenta- to dispose of by will in such real estate, unless a definite tion to a clinrch term of years, absolute or determinable, or an estate of shall pass a freehold, shall thereby be given to him expressly or by ter^gt! («) implication. XXXI. And be it further enacted, that where any real es- tate shall be devised to a trustee, without any express Trustees under an limitation of the estate to be taken by such trustee, unlimited and the beneficial interest in such real estate, or in where the the surplus rents and profits thereof, shall not be given en'dure'Te- to any person for life, or such beneficial interest shall JJ™^*^^ be given to any person for life, but the purposes of the g^^^^g'J.;^,,^ trust may continue beyond the life of such person, such entitled foV devise shall be construed to vest in such trustee the fee tiie'fee.*"^ simple, or other the whole legal estate which the testator had (() See infra, p. 1106, note (w). (w) See infra, p. 690. XX PREFACE. power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust shall be satisfied. XXXII. And be it further enacted, that where any person Devises of to whom any real estate shall be devised for an estate shaU^not*'^ tail or an estate in quasi entail shall die in the lifetime of lapse. the testator leaving issue who would be inheritable under such entail, and any such issue shall be living at the time of the death of the testator, such devise shall not lapse, but shall take efEect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. XXXIII. And be it further enacted, that where any person Gifts to being a child or other issue x)f the testator to whom any children or real Or personal estate shall be devised or bequeathed other issue ^ ^ _ -^ who leave for any estate or interest not determinable at or be- at the tes- fore the death of such person shall die in the lifetime of d^at" shall the testator leaving issue, and any such issue of such per- not lapse. ^^^ shall be living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will, (x) XXXiy. And be it further enacted, that' this act shall not Act not to extend to any will made before the first day of January, wtus made One thousand eight hundred and thirty-eight, and that WnOT^?* every -will reexecuted or republished, or revived by oM«r'r«S'"* ^"y codicil, shall for the purposes of this act be deemed of persons to have been made at the time at which the same shall whodiebe- , ,. i i fore 1838. DC SO reexecuted, republished, or revived ; and that this act shall not extend to any estate pur autre vie of any person who shall die before the first day of January, one thousand eight hundred and thirty-eight. ^xtenTto'" XXXV. And be it further enacted, that this act shall Scotland, not extend to Scotland. Act may XXXVI. And be it enacted, that this act may be this^seT^ amended, altered, or repealed by any act or acts to be sion. passed in this present session of parliament. {x) See infra, p. 1221 et seq. {y) See infia, pp. 129, 203, 216. TABLE OF CONTENTS. [The figures refer to the bottom paging, which is the same as that of the seventh and last English edition.] PART THE FIRST. OF THE APPOINTMENT OF EXECUTORS AND ADMINISTRATOES. PAKT I. BOOK I. OF THE ORIGIN OF WILLS OF PERSONAL ESTATE; AND OF THEIR NATURE AND INCIDENTS. CHAPTER I. Of the Origin op Wills of Personal Estate CHAPTER II. Of the Nature and Incidents of Wills and Codicils of Per- sonal Property PAET I. BOOK II. OF THE MAKING, REVOCATION, AND REPUBLICATION OF WILLS OF PERSONAL ESTATE. CHAPTER I. Who is capable of making a Will of Personalty 12 Sect. 1. — Persons incapable from want of Discretion ... 15 Sect. 2. — Persons incapable from want of Liberty or Freewill 44 Sect. 3. — Persons incapable from their Criminal Conduct . . 63 TABLE OF CONTENTS. [PT. I- CHAPTER 11. Or THE FOHM AND MANNER OF MAKING A WiLL OK CoDICIL . . 66 Sect. 1. — Of the Signature by the Testator 68 Sect. 2. — Of the Attestation of Wills and Codicils of Per- sonal Estate 84 Sect. 3. — The Form of a Will 103 Sect. 4. — The Language of a Will 108 Sect. 5. — Of the Materials with which a Will may be written, and of the Person who may be the Writer : and herewith of a Will prepared by a Legatee . . . Ill Sect. 6. — Of Nuncupative Wills and Codicils 116 CHAPTER ni. Of the Revocation of Wills of Personalty 124 Sect. 1 . — Revocation by Destruction, Burning, Tearing, Can- cellation, or Obliteration 128 Sect. 2. — Revocation by a subsequent Testamentary Disposi- tion 159 Sect. 3. — By express Revocation 182 Sect. 4. — Revocation by the Republication of a prior Will . 186 Sect. 5.— Revocation by Marriage or other change of Cir- cumstances ; and therewith of Presumptive or Im- plied Revocation 187 CHAPTER IV. Or THE Replication op Wills 205 Sect. 1. — How a Will may be republished or revived . . . 205 Sect. 2. — Of the Consequences of Republication 216 PART I. BOOK III. OF THE APPOINTMENT OF EXECUTORS, AND THE ACCEPTANCE OR REFUSAL OF THE OFFICE. CHAPTER I. Who is capable of being an Executor 228 CHAPTER n. Op the Appointment of Executors : — by what words Exec- utors MAY be appointed 239 BE. m. IV.] TABLE OF CONTENTS. xxiii CHAPTER III. In -what ways the Appointment op Executoes may be quali- fied 249 CHAPTER IV. In what cases the appointed Executor may transmit his Ap- pointment 254 CHAPTER V. Of an Executor de'son tort • 257 CHAPTER VI. Of the Executor's refusal or acceptance op the Oppice . 274 Sect. 1. — When and how the Office may be refused .... 274 Sect. 2. — The Consequence of Renunciation by an Executor . 283 PART I. BOOK IV. OP PROBATE. CHAPTER I. Op the necessity of obtaining Probate in the Court op Probate ; and op the Jurisdiction and Authority of that Court : and therewith op the Acts and Liabilities OF AN Executor before Probate 288 Sect. 1. — The Will must be proved in the Probate Court . . 288 Sect. 2. — . What the Executor may do before Probate . . . 302 CHAPTER II. Of the Manner of obtaining Probate, and the Practice op THE Court of Probate with respect thereto 311 Sect. 1. — By whom the Will should be proved; and here- with of the Production and Deposit of Testamen- tary Papers ,311 Sect. 2. — When the Will is to be proved 318 Sect. 3. — Of the Practice of the Court of Probate ; and here- with of Proof of Wills in Common Form ... 320 Sect. 4. — Proof of Wills in Solemn Form or^er Testes . . 332 Sect. 5. — Evidence in Testamentary Causes 342 xxiv TABLE OF CONTENTS. [PT. I. Sect. 6. — Of the Probate of Wills of Foreigners, &c. and of British Subjects domiciled out of the Jurisdiction . of the Court 360 Sect. 7. — Practice of the Court of Probate in certain other Particulars as to granting Probate 375 Sect. 8. — Of Mandamus to compel Probate 387 Sect. 9. — Of what Instruments Probate is necessary, and what Instruments ought not to be proved 388 CHAPTER m. Of the making and Probate of the Wills of Seamen and Marines 894 PART I. BOOK V. OF THE ORIGIN OF ADMINISTRATION ; AND OF THE APPOINTMENT OF ADMINISTRATORS. CHAPTER I. In what Court Administration must be taken out ; and therewith of what may be done bt the Administrator BEFORE letters OF ADMINISTRATION ARE GRANTED 401 Sect. 1. — In what Court the Letters of Administration shall be obtained 401 Sect. 2. — What may be done by an Administrator before Let- ters of Administration are granted 404 CHAPTER n. Of the grant of general original Administration in cases OF total Intestacy 409 Sect. 1. — To whom general Administration is to be granted . 409 Sect. 2. — Who are incapable of being Administrators . . . 449 Sect. 3. — Of the Mode of granting Letters of Administration, and the Practice relating thereto, and the Form thereof 451 Sect. 4. — Of Administration to the Effects of intestate Sea- men, Marines, and Soldiers 454 CHAPTER HI. Of Special and Limited Administrations 461 Sect. 1. — Of Admimstraxion cum testamento annexo .... 461 Sect. 2. — Of Administration de bonis non 470 BK. V. VI. VII.J TABLE OF CONTENTS. . XXV Sect. 3. — Of Limited Administration — Administration du- rante minore mtate 479 Sect. 4. — Of Administration pendente lite 495 Sect. 5. — Of Administration durante absentia 502 Sect. 6. — Of other temporary and limited Administrations . 513 CHAPTER IV. Of the Administration Bond ' 529 PART I. BOOK VI. OF THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRATION, AS LONG AS THEY ARE UNREVOKED: OF THE REVOCATION OF THEMC, AND OF THE CONSEQUENCES THEREOF. CHAPTER I. Of the Effect of Probate and Letters of Administration, AS long as they remain UNREVOKED 549 CHAPTER n. Of the Revocation of Probate and Letters op Administra- tion 671 CHAPTER m. Op the Effect op Revocation of Probate, or Letters of Administration, on the Mesne Acts of the Executor or Administrator 686 PART I. BOOK VII. OF THE STAMP DUTIES ON PROBATES AND ON LETTERS OF ADMIN- ISTRATION •' • ■ 595 XXVI TABLE OF CONTENTS. TpT. 11. PART THE SECOND. OF THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR. PAKT II. BOOK I. OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR ADMtNISTKATOR VESTS; AND OF THE QUALITY OF THAT ESTATE. CHAPTER I. Or THE Time when the Estate oe an Exkcutok ok Adminis- TKATOE VESTS 629 CHAPTER II. Or THE Quality oe the Estate oe an Executor ok Adminis- TRATOK 636 PAET II. BOOK II. OF THE QUANTITY OF THE ESTATE IN POSSESSION OF AN EXEC- UTOR OR ADMINISTRATOR 650 CHAPTER I. Of the Interest oe the Executor or Administrator in the Chattels Real of the Deceased . 670 Sect. 1. — The Executor's or Administrator's Right to Chattels Real, generally 670 Sect. 2. — Right of Executors and Administrators to Chattels Real, with Relation to Husband and Wife . . . 690 Sect. 3. — Of the Estate of an Executor or Administrator in Chattels Real by Condition, Remainder, or Lim- itation ggg CHAPTER U. • Of the Estate of an Executor or Administrator in the Chattels Personal of the Deceased in Possession . . . 703 Sect. 1. — Of the Estate of an Executor or Administrator in Chattels animate yQ3 BK, 11. m.] TABLE OF CONTENTS. XXvii Sect. 2. — Of the Estate of an Executor or Administrator in Chattels vegetable 707 Sect. 3. — Of the Estate of an Executor or Administrator in Chattels Personal inanimate : and therewith of Heirlooms, Fixtures, and Paraphernalia, &c. . . 720 (1) Heirlooms and things in the nature thereof 720-727 (2) Fixtures 727 (3) Paraphernalia, separate Property, &c. . . 748 Sect. 4. — Of Donations morfts causa 770 PART II. BOOK III. « OF THE QUANTITY OF THE ESTATE IN ACTION OF AN EXECUTOR OR ADMINISTRATOR 784 CHAPTER I. To WHAT ChOSES in ACTION THE ExECUTOR OE AdMINISTEATOK IS ENTITLED, WHICH THE DECEASED MIGHT HAVE PUT IN SUIT 785 Sect. 1. — The General Question as to what Actions survive to the Executor or Administrator 785 Sect. 2. — Particular instances where the Executor or Admin- istrator is entitled to Choses in Action which the deceased might have put in suit, and where not . 808 Sect. 3. — The Right of an Executor or Administrator to Choses in Action, as it respects Husband and Wife . . 846 CHAPTER n. To WHAT Choses in Action the Executoe oe Administeator IS ENTITLED, WHERE THE ACTION ACCEUES AFTEE THE DeATH OF THE TbSTATOE OE INTESTATE 876 CHAPTER in. Of the Title of an Executor oe Administeatoe to the ex- ecutory AND CONTINGENT INTEEESTS OF THE TeSTATOE OR Intestate 887 CHAPTER IV. What Suits commenced by the Testator or Intestate may BE CONTINCTED BY THE ExECUTOE OE AdMINISTEATOE ; AND HEBEWITH OF SCIKE FaCIAS, EREOE, AND CeETIOEAEI . . . 890 XXviii TABLE OF CONTENTS. [PT. III. PART II. BOOK IV. OF THE ESTATE OF SEVERAL EXECUTORS OK ADMINISTRATORS; OF THE ESTATE OF AN EXECUTOR OF AN EXECUTOR, AND OF AN ADMIN- ISTRATOR DE BONIS NON; AND OF THE ESTATE OF AN EXECUTRIX OR ADMINISTRATRIX WHO IS A FEME COVERT. CHAPTER I. The Estate of an Executor or Administrator considered, when there are several exec*t0r8 or administrators . 911 CHAPTER II. Of the Estate of an Executor of an Executor, pR of an Administrator db bonis non ; and of the Estate of a Feme Covert Executrix or Administratrix 91.5 PART THE THIRD. OF THE POWEES AND DUTIES OF AN EXECUTOR OR ADMINISTRATOR. « OF THE POWER AND AUTHORITY OF AN EXECUTOR OR ADMINISTRATOR. CHAPTER I. Of the Power and Authoritt of an Executor or Adminis- trator GENERALLY 925 CHAPTER II. Of THE Power and Authority of one of several Executors or Administrators 946 CHAPTER in. Of the Power and Authority of an Executor of an Executor; OF AN Administrator de bonis non; and of a Limited Ad- ministrator 959 CHAPTER IV. Of the Power of a Feme Covert Executrix or Administra- trix 963 BK. II.] TABLE OF CONTENTS. Xxix PART III. BOOK*II. OF THE DUTIES OF AN EXECUTOR OR ADMINISTRATOR WITH RESPECT TO THE FUNERAL ; THE PROVING OF THE WILL, AND THE TAKING OUT ADMINISTRATION ; THE INVENTORY; AND THE PAYMENT OF DEBTS. CHAPTER I. Or THE Funeral; of Proving the Will, and op taking out Ad- ministration; AND OF THE Inventory 968 Sect. 1. — Of the Funeral 698 Sect. 2. — Of proving the Will and taking out Administration 972 Sect. 3. — Of the making an Inventory by the Executor or Ad- ministrator 973 Sect. 4. — Of collecting the Effects 986 CHAPTER n. Of the Paymf,nt of Debts by the Executor or Administrator, according to their priority of degree 988 Sect. 1. — Of the Payment of the Expenses of the Funeral, and of the Probate or Administration. 2. Of Debts due to the Crown. 3. Of Debts to -which partic- ular Statutes give Priority of Payment .... 988 Sect. 2. — Of the Payment of Debts of Record. — 1. Judg- ments. 2. Decrees. 3. Statutes and. Recogni- zances 996 Sect. 3. — Of Debts by Specialty, and by Simple Contract . . 1010 Sect. 4. — Of the Payment of an Inferior Debt by an Executor or Administrator before a superior, without notice; and of suffering Judgment on an inferior Debt, without notice of a superior 1028 Sect. 5. — Of the Power of Preference by an Executor or Ad- ministrator among Creditors of equal Degree . . 1032 Sect. 6. — Of the Right of the Executor or Administrator to retain a Debt due to him from the Testator or In- testate 1039 XSX TABLE OF CONTENTS. [PT. lU. PART III. BOOK III. OF THE DUTIES OF AN EXECUTOR WITH KESPECT TO LEGACIES. CHAPTER I. Who is capable of being a Lbgatbe; and herewith of Be- quests TO Charitable Uses 1051 Sect. 1. — Who is capable of being a Legatee 1051 Sect. 2. — Of Bequests to Superstitious and Charitable Uses . 1055 CHAPTER II. Of the Construction of Wills of Personalty 1078 Sect. 1. — Of the general Rules of Construction 1078 Sect. 2. — Modes of Description of a Legatee 1089 Sect. 3.-^ Of Specific Legacies 1158 Sect. 4. — Of the Description of Legacies 1178 Sect. 5. — Of Legacies vested or contingent 1^03 (1) Legatee dying before Testator . . 1204 (2) Legatee dying after Testator . . 1223 (3) Of the Lapse of Legacies payable out of the Real Estate .... 1251 (4) Of the Lapse of Legacies charged on a Mixed Fund of Realty and Personalty 1255 Sect. 6.— Of Legacies on condition 1258 Sect. 7. — Of Cumulative Legacies 1289 Sect. 8. — Of the Satisfaction of Debts and Portions by Lega- cies 1296 Sect. 9. — Of the Release of Debts by Legacies, and herewith of the Effect of appointing a Debtor or a Creditor to be Executor 1303 CHAPTER UI. Of the Ademption of Legacies 1320 Sect. 1. — Of the Ademption of Specific Legacies .... 1320 Sect. 2. — Of the Ademption of Legacies given as Portions . 1332 CHAPTER IV. Of the Payment of Legacies 1340 Sect. 1. — All Debts must be paid before any Legacies are sat- isfied 1340 Sect. 2. — Of the Abatement of Legacies 135 9 BK. lU. IV.] TABLE OF CONTENTS. XSxi Sect. 3. — Of Executor's Assent to a Legacy 1372 Sect. 4. — At what time Legacies are to be paid: and herewith of bequests for life, with remainder over . . .1387 Sect. 5. — To whom Legacies are to be paid : and herewith of Legacies to Infants and Married Women . . . 1404 Sect. 6. — Of Interest upon Legacies 1423 Sect. 7. — In what Currency Legacies are to be paid .... 1433 Sect. 8. — Of the Payment or Delivery of Specific Legacies . 1436 Sect. 9. — Of Election 1440 Sect. 10. — Of the Refunding of Legacies 1450 CHAPTER V. Of Payment of the Residue 1454 Sect. 1. — Of the Residuary Legatee 1464 Sect. 2. — Of the Right of the Executor to the Residue, in case there is no Residuary Legatee 1474 PART III. BOOK IV. OF DISTKIBUTION. CHAPTER L Of Distribution under the Statute 1483 Sect. 1. — Of the Rights of Husband and his Representatives with respect to the Personal Property of his In- testate Wife 1488 Sect. 2. — Of the Rights of a Widow, in the Distribution of the Effects of her intestate Husband under the Statute 1490 Sect. 3. — Of the Rights of the Children, and their Represen- tatives, to Distribution under the Statute . . . 1495 Sect. 4. — The Rights of the Next of Kin of the Intestate under the Statute of Distributions 1605 Sect. 5. — Of Distribution, when the Intestate was domiciled abroad 1515 Sect. 6. — Of the Payment of the Residue 1525 CHAPTER II. Of Distribution under the Customs op London and York, &c. . 1527 Sect. 1. — The Rights of the Widow of an Intestate to a dis- tributive Share of his Personal Estate, subject to the Customs 1532 Xxxii TABLE OF CONTENTS. [PT. IV. Sect. 2. — The Eights of the Children and Grandchildren of an Intestate, with respect to Personal Estate, sub- ject to the Customs 1537 Sect. 3. — What are Assets subject to the Customs .... 1548 PART III. BOOK V. OF THE STAMP DUTIES ON LEGACIES AND SUCCESSIONS TO PER- SONAL ESTATES 1550 CHAPTER I. As TO THE Amount of Duties payable on Legacies and Suc- cessions 161 CHAPTER H. Upon what Subjects the Duties are Payable 1620 CHAPTER m. By -whom the Duties are payable 1245 PART THE FOURTH. OF THE LIABILITIES OF AN EXECUTOR OR ADMINIS- TRATOR. — •— PART IV. BOOK I. Of ASSETS X655 CHAPTER I. Of Personal Assets, Legal ok Equitable 1656 CHAPTER II. Of real Assets; and of the Exoneration op the Real Estate BY THE Personal : and herewith of the Marshalling of Assets 1687 BK. I. II,] TABLE OF CONTENTS. XXxiii Sect. 1. — Of the Exoneration of the Real Estate by the Per- sonal 1687 Sect. 2. — Of Marshalling the Assets in favor of Creditors and Legatees 1713 PART IV. BOOK 11. OF THE LIABILITY OF AN EXECUTOR OB ADMINISTEATOE IN RESPECT OF THE ACTS OF THE DECEASED; AND OF THE LIABILITY OF AN EXECUTOR OR ADMmiSTRATOE IN RESPECT OF HIS OWN ACTS. CHAPTER I. Or THE Liability of the executor ok adminisTeator in re- spect OF THE Acts of the Deceased 1721 Sect. 1. — The general question as to what Claims upon the deceased survive against the Executor or Admin- istrator 1721 Sect. 2. — Of particular Instances where the Executor or Ad- ministrator is liable with respect to the Acts of the Deceased 1739 CHAPTER 11. . Or THE Liability of Executor or Administrator with re- spect TO HIS OWN Acts 1771 Sect. 1. — Of the Liability of an Executor or Administrator on his own Contracts 1771 Sect. 2. — Of the Liability of an Executor or Administrator in respect of his own tortious or negligent Acts ; and herewith of Devastavit, and of Executors' Accounts and Allowances 1796 VOL. I. XXxiy TABLE OP CONTENTS. [PT. V. BK. I. U- PART THE FIFTH. OF REMEDIES. PART V. BOOK I. OF KEME0IES FOK EXECUTOKS AND ADMINISTEATOKS. CHAPTER I. Op Remedies fob Executors and Administkators at Law . . 1864 CHAPTER II. Of Remedies for Executors and Administrators in Equity . 1900 PART V. BOOK II. OF EEMEDIES AGAINST EXECUTORS AND ADMINISTEATOKS . . 1929 CHAPTER I. Op Remedies against Executors and Administrators at Law 1930 CHAPTER n. Of Remedies against Executors and Administrators in Equity 2006 CHAPTER III. Op Remedies against Executors and Administrators in th Court op Probate 2053 CHAPTER IV. Op Equitable Remedies against Executors and Administra- tors IN the County Court 2064 PAET THE FIRST- OF THE APPOINTMENT OF EXECUTORS AND ADMINISTRATORS. BOOK THE FIRST. OF THE ORIGIN OF WILLS OF PERSONAL ESTATE : AND OF THEIR NATURE AND INCIDENTS. CHAPTER THE FIRST. OF THE ORIGIN OF WILLS OF PERSONAL ESTATE. Although from the time of the Norman Conquest until the passing of the statute of wills (32 & 34 Hen. 8), a subject of this realm had, generally speaking, no testamentary power over land ; (a) yet the power of making a will oi personal property ap- pears to have existed and continued from the earliest period of our law. And, under the description of personal property so dispos- able, are not only to be considered gOods and chattels, but also terms for years and chattel interests in land, which, on account of their original imbecility and insignificance, were deemed person- alty, and as such were disposable by will, (a^) But this power, it seems, did not extend to the whole of a man's personal estate, unless he died without either wife or is- ^^ ^^^_ sue ; for bv the common law, as it stood, according to mon law a ■' ^ , T J. ""^n could Glanvil, in the reign of Hen. 2, a mans goods were to notbe- (a) [In regard to the history of devises, tions on the subject are substantially the see 4 Kent, 501-505. " The English law same, and they have been taken from the of devise," Chancellor Kent observes, "was English statutes of 32 Hen. 8 and 29 imported into this country by our an- Charles 2." 4 Kent, 504, 505. As to cestors, and incorporated into our colonial Louisiana, see 4 Kent, 505, note (a), 519, jurisprudence, under such modifications 520.] in some instances as were deemed expe- (ai) Co. Lit. Ill 6, note (1), by Har- dient. Lands may be devised by will in all grave, the United States, and the statute regula- VOL, I. 1 LIJ 2 OF THE ORIGIN OF WILLS OF PERSONAL PROPERTY. [PT. I. BK. I. queath the ]yQ divided into three equal parts ; one of which went whole of ,.,. , , 1 • •£ his per- to his * heirs, or lineal descendants, another to his wite, tate, unless and the third was at his own disposal : or if he died without without a wife, he might then dispose of one moiety, either wife ^.^^ ^jjg other Went to his children : and so, e converso, or chil- ' dren: if i,e had no children, the wife was entitled to one moi- ety, and he might bequeath the other ; but if he died without either wife or issue, the whole was at his own disposal. (6) The shares of the wife and children were called their reasonable parts ; and the writ de rationdbili parte honorum was given to recover writtZe them, (c) This writ lay for the wife against the execu- ^paruhorm- *o^^ o^ ^i^'" husband, and was founded on a complaint '■'""•■ that the said executors unjustly detained from the plain- tiff her reasonable part of the goods and chattels which were of the deceased, and refused to render the same to her. (d') And the sons and daughters were entitled to the like writ against the executors in case their third, part was withheld, (e) It must indeed be remarked, that there has been a controversy controver- whether this was the general law of the land, or only such as obtained in particular places by custom. Fitzherbert, in his commentary on the writ de rationahili parte hono- rum, contends that the distribution, which excludes the testamentary power from a certain portion of the per- sonal estate, was in his time the common law of the land, and therefore needed not a special custom to support it. (/) And Mr. Justice Blackstone (^) expresses a strong opinion to the same effect, citing Glanvil, Bracton, Magna Charta, the Year Books, and a passage from Sir Henry Finch ; the last of which authorities expressly lays it down, in the reign of Charles 1, to be the general law of the land. But, on the other hand, Lord Coke says that it appears by the Register, * and many of our books, that there must be a custom alleged in some county, &c. to enable the wife and children to the writ de rationahili parte honorum, and that so it had been resolved in parliament. (K) &y whether this was the general law, or only ob- taining in particular places by custom. (i) 2 Bl. Com. 492. (c) P. N. B. 122, L. 9th ed. ; 2 Saund. 66, note (9). (d) F. N. B. ubi supra. (e) The word "pueri" was used in the writ, but was taken as meaning children of both sexes, it being held that sons and [2] [3] daughters might join in the writ. Co. Lit. 176 b, note (3), by Hargrave. (/) P. N. B. ubi supra; Co. Lit, 176 6, note (6), by Hargrave. (g) 2 Bl. Com. 492. {h) Co. Lit. 176 b. "Mr. Justice Blackstone considers the passage cited by CH. I.] OF THE ORIGIN OF WILLS OF PERSONAL PROPERTY. 3 The law, however, whether general or prevailing in particular places only by custom, has been altered by imperceptible Alteration degrees, and the deceased may now by will bequeath of the law: the whole of his goods and chattels ; though we cannot trace out when first the alteration began, (i) In the province of York, (/) the principality of Wales, and in the city of London, the ancient method continued in use till modern times: when, in , , by certain order to lavor the power of bequeathing, and to reduce statutes the whole kingdom to the same standard, three statutes movince of were provided ; one, 4 & 5 W. & M. c. 2 (explained by y^^^ea, and 2 & 3 Anne, c. 5), for the province of York; another, ^™''<'°- 7 & 8 W. 3, c. 88, for Wales ; and a third, 2 Geo. 1, c. 18, for London ; * whereby it is enacted, that persons within those districts, and liable to those customs, may (if they think proper) dispose of all their personal estate by will ; and the claims of the widow, children, and other relations to the contrary are totally barred. Thus is the old common law now utterly abolished throughput all the kingdom of England, and a man may devise the whole of his chattels as freely as he formerly could his third part or moiety. In disposing of which, he was bound by the custom of many places to remember his lord and the church, by leaving them his two best chattels, which was the original of heriots and mortuaries ; Lord Coke from Bracton as making di- the order of partition under this writ, rectly against his opinion, and regards that it was then, and that not lately, an- Fleta also as a clear authority to the same tiquated, and vanished out of use in Kent purpose. But Mr. Somner, whose very and other counties, surviving only in the learned and extended discussion of this province of York and some few cities." subject seems to have escaped the author Co. Lit. 176 b, note (6), by Hargrave. It of the Commentaries, though not inclined may further be observed, that the writs de to au entire agreement with Lord Coke, ra^/onaWj parte ionorum, in the Kegister, as cites various passages of the same ancient it is admitted by Eitzherhert, rehearse the authors, from which it appears that their customs of the counties, stating that writings in this respect are contradictory. " whereas according to the custom which See in Somn. Gavelk. 91, a dissertation has hitherto obtained in the said county, on the question. Whether the writ de ration- wives, after the death of their husbands, abili parte bonorum was by the common law ought to have a reasonable part of the or by custom. Nor is it a' slight testimony goods and chattels of their said husbands, of its being settled law in Lord Coke's &c." F. N.B.I 22, L. time, not to allow of the writ de rationabili (i) 2 Bl. Com. 492. parte bonorum without a special custom, 0') What bishoprics the province of that Mr. Somner, whose book, before cited, York contains, see Co. Lit. 94 ; and post, was finished as early as 1647, though not pt. x. bk. iv. ch. ii. published till the Restoration, observes on [4] 4 OF THE ORIGIN OF WILLS OF PERSONAL PROPERTY. [PT. I. BK. I. and afterwards he was left at his own liberty to bequeath the remainder as he pleased. (A) Mr. Hargrave, in a note to Coke upon Littleton, (Z) observes : " Sir Wm. Blackstone treats the testamentary power over personal estate as now prevailing through all England. But if there be no other statutes than those he cites, I take this to be a mistake, so far at least as regards the city of Chester. The fact is, that both the cities of York and Chester were excepted in the 4th of W. & M., and that the 2 & 3 Anne takes away the exception as to the city of York only. As, too, the statutes, which subject the custom of dividing the personal estate of deceased persons to the testa- mentary power, do not name any place in England except London and the province of York, it follows that the local custom of any other part of England, on this subject, is not disturbed by any statutory provision." But with respect to the city of Chester, it was remarked by Lord Alvanley in Pickering v. Stamford : (to) " A vulgar error prevailed, that the custom of York goes through the whole province. The legislature themselves fell into it by reserving to the citizens of York and Chester the customs of those cities ; the latter of which has no custom. When by another act they repealed that as to the city of York, they left Chester just as it was by the first act. The custom * of York never attached upon any part of the province that was not so at the time of Henry 8 ; and Chester was annexed since that period." (n) And now by stat. 1 Vict. c. 26 (which, however, does not extend 1 Vict. c. 26. *° ^^^ ^^^^ '^^^^ before January 1, 1838), it is enacted that it shall be lawful for every person to devise, be- queath, and dispose of, by his will executed as required by that act, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, (o) m 2 Bl. Com. 493. preface. The interpretation clause (s. 1), (/) 176 6, note (5). enacts that the words " personal estate" (m) 3 Ves. 338. shall extend to leasehold estates and other (n) Chester is situate within the arch- chattels real, and also to moneys, shares deaoonry of Chester, which was part of of government and other funds, securities the ancient diocese of Lichfield and Cov- for money (not being real estates), debts, entry, and was incorporated with the choses in action, rights, credits, goods, and Archdeaconry of Eichmond, in the diocese all property whatsoever which by law de- of York, to form the newly erected diocese volves upon any executor or administrator of Chester, by statute 33 Hen. 8, c. 31. and to any share or interest therein. But (o) See this enactment (s. 3), verbatim, the third section does not intend to make [5] CH. I.] OF THE ORIGIN OF WILLS OF PERSONAL PROPERTY. any kind of personalty bequeathable which was not beqaeathable before, but only to regulate the form of executing wills. Lord Campbell, in Bishop v. Curtis, 18 Q. B. 881. Therefore a testator cannot bequeath a promissory note made to him, so as to pass the right to sue in respect of it. Such right is in the executor. Bishop v. Curtis, 18 Q. B. 879. [See Mitchell v. Smith, 4 De G., J. & S. 422. The donee of a nego- tiable note not indorsed, but received by him as a gift causa mortis, may maintain an action on it, in the name of the execu- tor or administrator of the donor, without his consent, and even against his protest. Bates V. Kempton, 7 Gray, 382 ; Sessions u. Mpseley, 4 Cush. 87 ; Grover v. Grover, 24 Pick. 261.] 6 OF THE NATURE OF WILLS AND CODICILS, ETC. [PT. I. BK. I. * CHAPTER THE SECOND. OF THE NATDEB AND INCIDENTS OP WILLS AND CODICILS OF PERSONAL PEOPEETY. A LAST will and testament is defined to be "the just sentence Definition of Our will, touching what we would have done after and testa- '^"'^ death ; " (a) and in strictness, perhaps, the defi- ment. nition might be narrowed by adding " respecting per- sonal estate;" for a devise "of lands is considered by our courts not so much in the nature of a testament, as of a conveyance by way of appointment of particular lands to a particular devisee ; (J) and upon that principle it was established that a man could devise those lands only which he had at the time of the date of such conveyance, and no after purchased lands would pass, what- ever words might be used; (c) whereas a will and testament (a) Swinb. pt. l,s. 2; Godolph. pt. 1, u. 1, s. 2 ; 2 Bl. Com. 499 ; [Smith v. Bell, 6 Peters, 75. It is in its own nature ambula- tory and revocable during the life of the testator. It is this ambulatory quality which forms the characteristic of wills, for though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is in such case produced by the express terms, and does not result from the nature of the in- strument. 1 Jarmau Wills (3d Eng. ed.), 12! Brown a. Betts, 9 Cowen, 208; Moye V. Kittrell, 29 Geo. 677 ; Loveren v. Lam- prey, 22 N. H. 434, 442 ; Shaw C. J. in Wait V. Belding, 24 Pick. 136.] (6) Harwood v. Goodright, Cowp. 90, by Lord Mansfield ; 1 Sannd. 277 e, note (4), to Duppa V. Mayo. [See 4 Kent, 502 ; Johnson J. in Tompkins v. Tompkins, 1 Bailey, 96 ; Ross v. Vertner, Freem. Ch. (Miss.) 599 ; Bay ley v. Bailey, 5 Gush. 245 ; [6] Langdon v. Astor, 16 N. Y. 9, 49.] It is said by Lord Coke, Co. Lit. HI a, that in law most commonly ultima voluntas in scriptis is used, where lands or tenements , are devised, and testamentum, when it con- cerneth chattels. See, also, to the same effect, Godolph. pt. 1, c. 6, s. 7. ["When the will operates upon personal property, it is sometimes called a testament, and when upon real estate, a devise ; but the more general and the more popular denomina- tion of the instrument, embracing equally real and personal estate, is that of last will and testament." 4 Kent, 502.] (c) 1 Saund. 277 c, note (4) ; Wind v. Jekyl, 1 P. Wms. 575 ; [Minuse v. Cox, 5 John. Ch. 441 ; Carter v. Thomas, 4 Greenl. 345; Brcwster!>.McCalI,15 Conn. 274; George v. Green, 13 N. H. 521; M'Kinnon ». Thompson, 3 John. Ch. 307, 310; Livingston v. Newkirk, 3 John. Ch. 312 ; Thompson v. Scott, I McCord Ch. 32; Kemp u. M'Pherson, 7 Harr. & J. CH. II.] OF THE NATURE OF WILLS AND CODICILS, ETC. would operate upon whatever personal estate a man died possessed of, whether acquired before or since the execution of the instru- ment, (d) , 320; Carroll v. Carroll, 16 How. (TJ. S.) 275 ; Hays v. Jackson, 6 Mass. 149 ; Wait V. Belding, 2.t Pick. 129 ; BuUard v. Carter, 5 Pick. 114; Girard v. Philadelphia, 4 Rawle, 323 ; Header v. Sorsby, 2 Ala. (N. S.) 712; Foster v. Craige, 3 Ired. 536; Battle V. Speight, 9 Ired. 288. In many of the American States, every descendible in- terest in real estate is a devisable interest. Rights of entry are devisable in Massa- chusetts, whether the devisor was dis- seised at the time of making the will, or became so afterwards. Genl. Sts. t. 92, § 3; so in New Hampshire, Rev. Sts. c. 156, § 3 ; so in Maine, Rev. Sts. 1841, p. 376. As to Pennsylvania, Humes v. M'Farlane, 4 Serg. & R. 435 ; New York, Jackson v. Varick, 2 "Wend. 166; S. C. 7 Cowen, 238 ; Virginia, Watts u. Cole, 2 Leigh, 6C4. See Ross v. Ross, 12 B. Men. 437; Smith v. Jones, 4 Ohio, 115. A will may operate on a contingent reversionary interest. Brigham v. Shattuck, 10 Pick. 306, 309 ; Austin v. Cambridgeport Parish, 21 Pick. 215; Hayden v. Stoughton, 5 Pick. 528; Steel v. Cook, 1 Met. 281; Kean v. Roe, 2 Harring. 103 ; Keating v. Smith, 5 Cush. 236 ; Shelby v. Shelby, 6 Dana, 60. A possibility coupled with an interest is devisable. Den v. Manners, 1 Spencer, 142. So a power to sell lands. Wright V. Trustees Meth. Epis. Church, 1 HofF. 204. See 4 Kent, 512, 513. A per- son who had sold an estate under circum- stances which entitle him in equity toliave the sale set aside, has a devisable interest in the estate. Gresley v. Mousley, 4 De G. 6 J. 78. So has a person, who has made a valid agreement for the purchase of an estate, a devisable interest in it. Malin v. Malin, 1 Wend. 625; Marston ;;. Fox, 8 Ad. & El. 14. See Livingston v. Newkirk, 3 John. Ch. 312 ; M'Kinnon v. Thompson, 3 John. Ch. 307.] It did not turn upon the construction of the statutes of wills (23 Hen. 8, c. 1, and 34 Hen. 8, c. 5), which say that any person having land may devise (as it has sometimes been said, see Toller on Executors, p. 2) ; for the same rule held before the statute, where lands were devisable by custom. Harwood v. Good- right, Cowp. 90, by Lord Mansfield; Brun- ker V. Cook, II Mod. 122; Brydges v. Duchess of Chando.'S, 2 Ves. jun. 427 ; 1 Wms. Saund. 277 e, note (4). (d) Wind V. Jekyl, 1 P. Wms. 575. And now, by statute 1 Vict. c. 26, s. 3 (which, however, does not apply to any will made before January 1, 1838), the power of disposing by will, executed as required by that act, is extended to all such real and personal estate as the tes- tator may be entitled to at the time of his death, notwithstandii^g he may become entitled to the same subsequently to the execution of his will. See this enact- ment, verbatim, preface. [The law in re- gard to after acquired lands has been changed in a similar manner by statute, in many of the American States. In Massa- chusetts, by Genl. Sts. c. 92, § 4, it is en- acted that "any estate, right, or interest in lands, acquired by the testator after making his will, shall pass thereby in like manner as if possessed at the time of mak- ing the will, if such clearly and manifestly appears by the will to have been the inten- tion of the testator." In Vermont, see Rev. Sts. 1839, p. 254, § 2; Pennsylvania, Rev. Acts relating to wills (1833), § 10; Mis- souri, Liggat V. Hart, 23 Missou. 127 ; New York, 2 Rev. Sts. p. 57, § 5 ; Virginia, Act 1850, c. 122, § 11 ; Smith u. Edrington, 8 Cranch, 66 ; Allen v. Harrison, 3 Call, 289 ; Turpin u. Turpin, 1 Wash. 75; Hyer[t> Shobe, 2 Munf. 200 ; Indiana, Rev. Sts. 1843, p. 485, § 3 ; Maine, Rev. Sts. 1840-41, p. 376; Maryland, St. 1850, c. 259; see Carroll u. Carroll, 16 How. (U. S.) 275; Johns u. Doe, 33 Md. 515 ; Connecticut, Laws of Conn. 1838, p. 245 ; New Hamp- shire, Rev. Sts. 1842, c. 156, § 2. In Ken- tucky, land may pass by a will, though ac- quired after the publication of it. Walton OF THE NAtUEE OF WILLS AND CODICILS, ETC. [PT. I. BK. I. Codicil. * In strictness, according to the older authorities of the ecclesi- astical law, the appointment of an executor was essen- tial to a testament. " The naming or appointment of an executor," says Swinburne, (e) " is said to be the foundation, the substance, the head, and is indeed the true formal cause of the testament, without which a will is no proper testament, and by the which only the will is made a testament." So Godolphin observes, (/) that " the appointment of an executor is the very foundation of the testament, whereof the nomination of an exec- utor, and the justa voluntas of the testator, are two main essen- tials." And the common law judges, in Woodward v. Lord Dar- cy, (^) laid down that " without an executor a will is null and void." (A) However, this strictness has long ceased to exist, (J) V. Walton, 7 J. J. Marsh. 58 ; so in Ohio, Smith «. Jones, 4 Ohio, 115 ; Brush v. Brush, 10 Ohio, 287 ; Norih Carolina,.Ba.t- tle V. Speight, 9 Ired. 288 ; Illinois and Al- abama, 4 Kent, 512; Meador w. Sorsby, 2 Ala. (N. S.) 712. The above statute of Mas- sachusetta has been held to apply to a will made before its passage, where the death of the testator occurred after its passage. Gushing V. Aylwin, 12 Met. 169 ; Pray v. Waterston, 12 Met. 262. The statute of New York has been similarly applied. See De Peyster v. Clendenning, 8 Paige, 295 ; Bishop V. Bishop, 4 Hill, 138 ; and of Vir- ginia, Smith V. Edrington, 8 Cranch, 66; and of New Hampshire, Loveren v. Lam- prey, 22 N. H. 434. In Wakefield v. Phelps, 37 N. H. 295, 306, Eastman J. said : " A will does not take effect, nor are there any rights acquired under it, until the death of the testator; and its construc- tion and validity depend upon the law as it then stands. A statute passed after the making of a will but before the death of the testator, by which the law is changed, takes effect upon the will." The statute of Maryland above referred to, has been held not to apply to wills made before it took effect, though the testator died after- wards. Carroll v. Carroll, 16 How. (U. S.) 275. The same construction has been given to the Pennsylvania statute of 1833, Mullock V. Sonder, 5 Watts & S. 198 ; so to that in Connecticut, Brewster v. Mc- [7] Call, 15 Conn. 274 ; and North Carolina, Battle V. Speight, 9 Ired. 288. It has been considered a sufficient manifestation of the intention of the testator that real estate acquired by him, after the making of his will, shall pass thereby, according to the Massachusetts statute, where it appears by the whole scheme and tenor of the will that he intended to make an entire dispo- sition of all of his property, real and per- sonal. Winchester v. Forster, 3 Cush. 366 ; Gushing V. Aylwin, 12 Met. 169; Brimmer V. Sohier, 1 Cush. 118. In Gushing a. Aylwin, ubi supra, the court treat it as an important manifestation that the testatrix did not intend to die intestate as to any of her property. " And there is no reason," say the court "to suppose that her inten- tion was changed when she purchased the estate in question after making her will." To the same effect, see Loveren ;;. Lamprey, 22 N. H. 434. See Wait v. Belding, 24 Pick. 136. To prevent after acquired lands passing under the Pennsylvania act ( 1 833 ), there must be an express prohibition. Roney v. Stiltz, 5 Whart. 381, 384.] (e) Pt. 1, s. 3, pi. 19. (/) Pt. 1, c. 1, s. 2. ((?) Plowd. 185. (A) See, also, Chadron v. Harris, Noy, 12 ; Finch, 45 b ; Bro. Test. pi. 20 ; and see the judgment of Mr. Baron Wood, in Attorney General v. Jones, 3 Price, 383. (i) Wyrall v. Hall, 2 Ghanc. Rep. 112; CH. II.] OF THE NATURE OF WILLS AND CODICILS, ETC. "9 as it will appear in the subsequent chapter, respecting the form and manner of making the will; (J) and even by the old authori- ties above mentioned, an instrument which would have amounted to a testament, if an executor had been nominated, was recognized as obligatory on him who had the administration of the goods of the deceased, under the appellation of a codicil ; which is accord- ingly defined by Swinburne (k) and Godolphin (0 to be " the just sentence of our will, touching that which we would have done after our death, without the appointing of an executor ; " and hence a codicil was called " an unsolemn last will." (m) It was termed codicil, codicillus, as a diminutive of a testament, codex, (n) *But although it appears that "codicils" might be made by those who died without testaments, (o) yet the more frequent use of a codicil was, as an addition made by the testator, and annexed to, and to be taken as part of a testament,- being for its explana- tion or alteration, or to make some addition to, or else some sub- traction from, the former disposition of the testator: Qp) in which sense the term codicil is applied in modern acceptation. A codicil, in this latter sense of it, is part of the will, all mak- . ing but one testament, (jj) A strong illustration of this princi- [Stebbins v. Lathrop, 4 Pick. 43 ; Drnry «. Natick, 10 Allen, 169, 174; Newcomb c. Williams, 9 Met. 533, 534.] (./) Post, pt. i.'bk. II. ch. II. § III. (k) Pt. 1, s. 5, pi. 2. (/) Pt. 1, c. 6, B. 2. (m) Swinb. pt. 1, s. 5, pi. 4; Godolph. pt. 1, c. 6, s. 2. (n) Godolph. pt. 1, e. 6, o. 1. However, in respect of distribution, under the cus- tom of York, &c. it may at this day be a material question whether a man dies testate In the strict sense of liaving ap- pointed an executor. See Wheeler v. Sheer, Moseley, 302 ; Wilkinson v. Atkin- son, 1 Turn. Ch. Eep. 255 ; Pickford v. Brown, 2 Kay & J. 426 ; Chappell v. Haynes, 4 Kay & J. 163; and infra, pt. III. bk. IV. ch. II. (o) Swinb. pt. 1, s. 5, pi. 9 ; Godolph. pt. 1, c. 6, s. 3. (p) Swinb. pt. 1, s. 5, pi. 5; Godolph. pt. 1, c. 6, s. I. Although in a codicil, regularly, executors may not be instituted or primarily appointed, yet executors may be substituted or added by a codicil' Godolph. pt. 1, c. 1, s. 3 ; Swinb. pt. 1, s. 5, pi. 5. [This rule has been carried to the extent of enabling two peisons to prove a will and codicil, one of whom was named as sole executor in the will and the other as sole executor in the codicil. MuUin P. J. in Wetmore v. Parker, 7 Lansing, 121, 129.] (q) Fuller v. Hooper, 2 Ves. sen. 242, by Lord Hardwicke ; Crosbie v. MacDoual, 4 Ves. 610; Evans v. Evans, 17 Sim. 108; Hartley v. Tribber, 16 Beav. 510; and see Eeeves v. Newenham, 2 Ridgw. I. P. C. 43. [A codicil is an addition or supple- ment to a will, and must be executed with the same solemnity. 4 Kent, 531 ; Met- calf J. in Tilden u. Tilden, 13 Gray, 103, 108. "The term 'will' shall include codicils.'' Genl. Sts. Mass. c, 3, § 7. A codicil does not interfere with any of the specific provisions of the will, unless its language naturally and obviously produce such result, or the terms of the codicil ex- pressly recognize the alteration. Mullin [8] 16 OF THE NATURE OF WILLS AND CODICILS, ETC. [PT. I. BK. I. pie may be found in the case of Sherer v. Bishop, (r) -where the testator gave the residue of his personal estate among such of his relations only as were mentioned in that his will. He afterwards made a codicil which he directed to be taken as part of his will ; and a second, by which he gave legacies to two of his relations, but gave no such direction ; and it was held by Lord Commis- sioner. Eyre (^duhitantihus Ashhurst J. and "Wilson J.), as that every codicil was part of the testamentary disposition, though not part of the instrument, the relations named in the second codicil were entitled to a share of the residue, (s) But in Fuller v. * Hooper, (t) where a person by will gave legacies to all her neph- ews and nieces, except those thereinafter named, and desired her executors to look upon all memoranda in her handwriting as parts of, or a codicil to, her will, and then bequeathed the residue to the children of her sisters ; and by a codicil she gave legacies to (r) 4 Bro. C. C. 55. (s) This decision has been considered as carrying the principle too far ; and in Hall V. Severne, 9 Sim. 515, 518, Shadwell V. C. said he could not accede to it. In the latter case, the testator, by his will, gave pecuniary legacies to several persons, and directed his residue to be divided amongst P. J. in Wetmore v. Parker, 7 Lansing, 121, 129. It is the established rule not to disturb the dispositions of the will farther than is absolutely necessary for the purpose of giving effect to the codicil. 1 Jarman Wills (3d Eng. ed.),162; Conover v. Hoff- man, 1 Bosw. 214; Tilden u. Tilden, 13 Gray, 108, 109. Where the will contains a clear and unambiguous disposition of his before mentioned legatees in propor- property, real or personal, such a gift is not allowed to be revoked by doubtful ex- pressions in a codicil. 1 Jarman Wills (3d Eng. ed.) 168 ; Wetmore v. Parker, 52 N. y. 450 ; Hearle v. Hicks, 1 CI. & Pin. 20 ; Kobertson v. Powell, 2 H. & C. 762 ; In re Arrowsraith's Trusts, 2 De G., P. & J. 474 ; Norman v. Kynaston, 3 De G., P. & J. 29 ; Lemage v. Goodban, L. R. 1 P. & D. 57 ; Brant v. Wilson, 8 Cowen, 56 ; Coster V. Coster, 3 Sandf. Ch. Ill ; post, 1 85, and note. " It is an established prima facie rule of construction that an additional legacy, given by a codicil, is attended with the same incidents and qualities as the original legacy." Metcalf J. in Tilden «. Tilden, 13 Gray, 103, 108 ; post, 1295. A tion to their several legacies therein before given. By a codicil, which he directed to be taken as part of his will, he gave sev- eral pecuniary legacies to persons, some of whom were legatees under his will, and declared that the several legacies men- tioned in the codicil were given to the there- in mentioned legatees in addition to what he had given to them or any of them by his will ; and the V. C. held that none of the legatees under the codicil were entitled to share in the residue in respect of their legacies under the codicil. Where « tes- tator devised property to the children of B. in like manner as they were entitled under the will of B., it was held that the testator referred to the will and codicils of codicil depending upon the body of the B., as the whole together must be taken to will for interpretation or execution, cannot be his will. Pigott v. Wilder 26 Beav. be established as an independent will, when 90. the will itself has been revoked. Youse (t) 2 Ves. sen. 242, and Supplement by V. Porman, 5 Bush, 337. See Pinckney's Belt, 333. Will, I Tuck. (N. Y. Sur.) 436.] [9] CH. II.] OF THE NATURE OF WILLS AND CODICILS, ETC. 11 some other nephews and nieces ; Lord Hardwicke held, that the nephews and nieces mentioned in the subsequent part of the will, and not those mentioned in the codicil, were excluded from the first mentioned legacies ; because the testatrix meant to refer, not to her will or testament, which takes in all the parts, but to the particular instrument, (u) A will is in its nature a different thing from a deed, and al- though the testator happen to execute it with the * for- ^ ^;,| j^ malities of a deed ; e. q. though he should seal it, which differ™* in Its nature is no part or mgredient of a will ; yet it cannot in such from a case be considered as a deed, (x) It is also a peculiar property in a will, as it will hereafter more fully appear, that by its nature it is in all cases a revoc- j^ ^,^ ^^^^^ able instrument, even should it in terms be made irre- revocable: («) So, in Early v. Benbow, 2 Coll. 354, the testator, by his will, directed that the legacies " herein before by me bequeathed " should be paid free of legacy duty. By a codicil which he directed might be taken as part of his will, he gave other legacies ; and Knight Bruce V. C. held that the legacies given by the codicil were not given free of legacy duty, his honor being of opinion that the word " herein " was meant to refer to no more than the particular in- strument in which it was contained. How- ever, several cases may be found, where an additional legacy given by a codicil, though not so expressed, has been held subject to the same incidents as the origi- nal legacy given by the will. See Day u. Croft, 4 Beav. 561 ; Warwick v. Hawkins, 5 De G. & Sm. 481. See, also, the other decisions with respect to the legacy duty, collected, infra, pt. iii. hk. v. ch. iii. Where a testator executed a codicil to his last will, and by such codicil absolutely revoked and made void all bequests and dispositions in the will, and nominated ex- ecutors, but did not in direct terms revoke the appointment of executors and guar- dians in the will, it was held by Lord Pen- zance that the will was not revoked. In the Goods of Howard, L. E. 1 P. & D. 636. [Where the residue was given to executors by will, and a codicil directed that A. should also be executor, and that the will should take effect as if his name had been inserted therein as executor, A. was held not entitled to a share of the residue. Hillersdon u. Grove, 21 Beav. 518.] {x) Lord Darlington v. Pulteney, 1 Cowp. 260 ; Attorney General a. Jones, 3 Price, 368 ; [Gillman v. Mustin, 42 Ala. 365.] Seeposi, pt. i. bk. ii. ch. ii. § iii. as to what instruments are testamentary. [A seal is not necessary to the validity of a will, either of personal or real estate, un- less required by statute. Avery u. Pixley, 4 Mass. 460, 462 ; Arndt v. Arndt, 1 Serg. & E. 256 ; Williams o. Burnett, Wright, 53 ; Piatt v. McCuUough, 1 McLean, 70 ; Hight V. Wilson, 1 Dallas, 94; Doe v. Pattison, 1 Blackf 355 ; In re Diez, 50 N. Y. 88. A seal is, however, not unfre- quently annexed to a will, although not required ; and if the testator, considering the seal an essential part of the execution, should tear it off, with the express design thereby to revoke the will, it might become important in that aspect. Avery v. Pix- ley, 4 Mass. 460, 462 ; In re Will of An- gelina S. White, 25 N. J. Eq. 501. A seal was required to a will of real estate by the Revised Statutes of New Hampshire, 1842, t. 156, § 6. See 1 Greenl. Ev. § 272, note.] [10] 12 OF THE NATURE OF WILLS AND CODICILS, ETC. [PT. I. BK. I. vocable ; (y) for it is truly said, that the iirst grant and the last will is of the greatest force, (a) Therefore a will made by way of provision for a wife, in con- templation of marriage, is revoked by a will of later date, (a) Another essential difference between a will and a deed may be there can- mentioned, that there cannot be a conjoint or mutual joint will. will. An instrument of such a nature is unknown to the testamentary law of this country. (J) But there are several authorities which appear to show that this doctrine does not go farther than to deny that a conjoint or mutual will can be made with the characteristic quality of being irrevocable, unless with the concurrence of the joint or mutual testators. Such a will is certainly revocable, (c) But if either of the testators dies without revoking it, the will is valid and entitled to probate as far as respects his property, (ci) * Where, however, two testators (y) Vynoir's case, 8 Co. 82 a. See post, pt. 1. bk. II. ch. III. (z) Co. Lit. 112 6. (a) Pohlman v. Untzellman, 2 Cas. temp. Lee, 319. (i) [Lord Darlington v. Pulteney,] 1 Cowp. 268, in Lord Mansfield's judgment ; Hobson V. Blackburn, 1 Add. 277. [In Clayton v. Liverman, 2 Dev. & Bat. 558, a conjoint will, offered for probate after the death of both the parties, was rejected upon the idea that Hobson v. Blackburn, supra, as decided by Sir John NichoU, es- tablished the invalidity of such instruments as wills. Judge Daniel, in dissenting from the opinion of his brethren in this case, admitted that, as a joint will it could not be admitted to probate, but urged, with great force and earnestness, that it should have been admitted to proof as the separate will of each of the decedents. The idea that a will is invalid because signed by more parties than one, and pur- porting on its face to be the will of more than one, is not in consonance with es- tablished law. Bradford, Surrogate, in Ex parte Day, 1 Bradf. 481 ; Rogers et al. Appts. 2 Fairf. 303 ; Lewis v. Scofield, 26 Conn. 452; Sohumaker v. Schmidt, 44 Ala. 454;] but see post, pt. I. bk. Ii. [11] ch. III. as to the validity of such a will in equity. (c) [Schumaker v. Schmidt, 44 Ala. 454.] But see ;dos<, pt. I. bk. ii. ch. iii. as to the irrevocability of such a will in equity. (d) In the Goods of Stracey, Dea. & Sw. 6 ; In the Goods of Lovegrove, 2 Sw. & Tr. 453; [Evans v. Smith, 28 Geo. 98. A will made and executed jointly by hus- band and wife, devising estates of which he was sole owner, was at his death sus- tained as a valid will of the husband alone. Rogers et al. Appts. 2 Fairf. 303. See Lewis V. Scofield, 26 Conn. 455 ; Kunnen V. Zurline, 2 Cin. (Ohio) 440. And where a husband and wife are empowered to dis- pose of an estate by will, and they jointly make and duly execute a will, it is not in the power of either, by a separate act, to revoke the will so made. Bretitwitt v. Whittaker, 8 B. Mon. 530. So it has been held that a mutual will executed by hus- band and wife, devising reciprocally to each other, is valid. Such an instrument ope- rates as the separate wi 1 of whichever dies first. In re Diez, 50 N. Y. 88. This sub- ject was ably discussed, and the cases bearing upon it reviewed, by Bradford, Surrogate, in Ex parte Day, 1 Bradf. CH. II.] OF THE NATURE OF WILLS AND CODICILS, ETC. 13 made a joint will containing clevises and legacies to take effect after the decease of both of them, it was held that probate could not be granted of the will during the lifetime of either, (e) 467, where he decided that a conjoint or mutual will is valid, and may be admitted to probate, oti the decease of either of the parties, as his will ; that such an instru- ment, though irrevocable as a compact, is revocable as a will, by any valid subse- quent testamentary paper ; but if unre- voked, it may be proved as a will, if it has been executed with the formalities requi- site to the due execution of a will. The learned surrogate reviews the case of Hob- son V. Blackburn, cited in note (b) above, and concludes that there is nothing in it inconsistent with the propositions stated in Ex parte Day, and adds : " Sir John NichoU's own language in Passmore v. Passmore, 1 Phillim. 216, and Masterman V. Maberly, 2 Hagg. 235, shows that his decision in Hobson v. Blackburn has been entirely misconceived ; that instead of de- ciding that a compact of a testamentary character could not be proved as u. will because it was a mutual or conjoint act, he only held that such an instrument could not be set up as irrevocable against a subsequent will revoking it." "Nor do I see anything in the formal requisites prescribed by our statute, in relation to the duo execution of wills, militating against the admission of a mutual will to probate, from the mere fact that it was executed as a will by two persons at the same time, provided that all the proper solemnities were duly observed Be- cause the will happens to be made in con- formity to some agreement, or contains on its face matter of agreement, or shows mutuality of testamentary intention be- tween two persons, and a compact or in- tention not to revoke, in my judgment it is none the less a will, and if it happens that the party who first dies, observes re- ligiously his solemn compact and dies, leaving this in fact his last will and testa- ment, it ought to be admitted to proof as such. The compact is not unlawful, it is not contrary to good manners, it will be sustained in a court of equity, on the ground that the will is valid at law, and by the death of the first dier has become irrevocable ; unless there is some matter of form, some technical arbitrary rule springing out of the statute, or the neces- sary form or construction of a will, it is difficult to see why a conjoint will should not be admitted to probate on the death of either of the parties, as his separate will." In Lewis v. Scofield, 26 Conn. 452, it ap- peared that two sisters jointly executed an instrument in the following form : " We, A. and B. make this, our last will and testament, in manner and form as follows, viz, that in the event of the death of either of us, testators, the surviving sister shall have and hold for her own use and benefit, to dispose of in manner that shall seem most expedient, all of the real and personal estate we shall be possessed of," and the instrument was executed with the formalities requisite to a will, it was held that the instrument, construed according to the legal effect of its language, under- took to operate only as the will of the sis- ter who should first die, and only upon (e) In the Goods of Kaine, 1 Sw. & Tr. 144, coram Sir C. Cressvvell. But quxre, whether the delay of the eflFect of the will in- terfered with its title to immediate probate as the will of the deceased testator. [A still more important and difficult question re- lates to the disposition to be made of the property of the joint testator first deceased between the time of his death and the time of the decease of his surviving joint testa- tor. In Schumaker u. Schmidt, 44 Ala. 454, it was held that, if the will so pro- vides, and the disposition made o/ the property requires it, the probate should be delayed until the death of both or all the testators.] 14 OF THE NATURE OF WILLS AND CODICILS, ETC. [PT. I. BK. I. her estate ; and that upon the death of the sister who first died, it was valid as her will. Hinman J. having considered the remarks of Lord Mansfield in Darlington V. Pulteney, and the decision in Hobson V. Blackburn, said, " We do not therefore consider the authorities as at all decisive as against the probate of such an instru- ment as is before the court in this case ; and as the point has not, to our knowledge, ever been raised before in this state, we feel at liberty to decide it upon the reason and good sense of the case, as it appears to us." A similar paper was upheld as a will in Evans v. Smith, 28 Geo. 98 ; Schu- maker v. Schmidt, 44 Ala. 454. It was said in Bynum v. Bynura, 11 Ired. 632, that, where two persons agree to make mutual wills, it would seem that bad faith in the one, either in not making his will or in cancelling it after it was made, will not prevent the probate of the will of the other party. An agreement to make mut- ual wills appears to be valid. Ex parte Day, 1 Bradf. 476, 477, and cases there cited; Izard v. Middleton, 1 Desans. 116 ; Dufour ». Pereira, 2 Harg. Jurid. Arg. 304 ; Rivers v. Rivers, 3 Desaus. 190 ; post, 124, note (cl) ; Gould v. Mansfield, 103 Mass. 408. Reciprocal wills seem to have been sanctioned by the civil law. Ex parte Day, 1 Bradf. 480, 481 ; Domat, pt. 2, lib. 3, tit. 1, § 8, art, 20 ; Dig. lib. 28, tit. 5, De Heredibus Inat. c. 70.] *BOOK THE SECOND. OF THE MAKING, REVOCATION, AND REPUBLICATION OF WILLS OF PERSONAL ESTATE. CHAPTER THE FIRST. WHO IS CAPABLE OF MAKING A WILL OP PERSONALTY. ^ It may be laid down generally, that all persons are capable of disposing of their personal estate by testament, who have suffi- cient discretion, their own free will, and who have not been guilty of certain offences, (a) Wherefore there are three grounds of incapacity : 1, the want of sufficient legal discretion ; 2, the want of liberty or free will ; 3, the criminal conduct of the party. This may be the proper place to mention two cases which do not come, in strictness, under any one of these heads. Alien friends, or such whose countries are at peace with ours, may make wills to dispose of their personal estate (a}) (al- though being incapable of holding real property, they are of course equally so of devising it ; (5) but alien enemies, unless (a) Swinb. pt. 2, », 1. [There seems to (6) This incapacity extends to chattels be no distinction in the degree of mental real. Co. Lit. 2 b. But in Fourdrin v. capacity requisite for the execution of a Gowdcy, 3 My. & K. 383, where an alien valid will of real estate and that required resident in England purchased an equita- for the execution of such a will of personal ble interest in freehold lands, and also a estate. Sloan v. Maxwell, 2 Green Ch. lease for a long term of years, and after- 563, 566; Marquis of Winchester's case, wards obtained letters of denization, which 6 Co. 23. In either case the testator must in terms conferred upon him not only the have a sound disposing mind at the time power of acquiring lands in future, but of of making his will. Kinne v. Kinne, 9 retaining and enjoying all lands which he Conn. 102 ; Boyd v. Eby, 8 Watts, 66 ; had theretofore acquired. Sir John Leach Harrison v. Rowan, 3 Wash. C. C. 586 ; M. R. held that he had power to devise Whitenach v. Stryker, 1 Green Ch. 11 ; the freehold and chattel interest in land Duffield V. Robeson, 2 Harring. 379.] which he had purchased previously to the (a^) [Craig v. Leslie, 3 Wheat. 589 ; letters of denization. See stat. 7 & 8 Vict. Polk V. Ralston, 2 Humph. 500 ; Com- c. 66 (Act to amend the Laws respecting mouwealth v, Martin, 5 Munf. 117.] Aliens). [Great modification of the law on [12] 16 OF THE CAPACITY TO MAKE A WILL — ALIENS. [PT. I. BK. 11. they have the king's license, express or implied, to reside in this *country are incapable of making any testamentary disposition of their property, (c) this subject must result, in England, from the 33 Vict. c. 14, " The Naturalization Act," 1870. For by sect. 2 of that act, an alien is empowered to take, acquire, hold, and dispose of real and personal property of every description, in the same manner in all respects as if he were a natural born British subject; and a title to real and personal property of every description may be devised through, from, or in suc- cession to, an alien, in the same manner in all respects as through, from, or in suc- cession to a natural born British subject ; with certain provisos not material to this subject. The statute appears to give this power to all aliens, whether they be the subjects of a friendly state or not ; and whether they reside in England or not. 1 Chitty Contr. (Uth Am. ed.) 259, 260; 1 Dan. Ch. Pr. {4th Am.ed.) 47. The disa- bilities of aliens to take, hold, or transmit real estate have been partially removed in some of the American States, and wholly in others. See 2 Kent, 69 et seq.; 1 Dan. Ch. Pr. (4th Am. ed.) 46, note (6). By the General Statutes of Massachusetts, c. 90, § 38, aliens, whether residents or non- residents, may take, hold, transmit, and convey real estate, and no title to real es- tate shall be invalid on account of the alienage of any former owner. See Foss V. Crisp, 20 Pick. 121 ; Lnmb v. Jenkins, 100 Mass. 527. The above provisions were first enacted in substance by stat. 1852, cc. 29, 86. Before that statute, the rule of law prevailed, in Massachusetts, as in other states where there is no statute upon the subject, that an alien could take real estate, by deed or devise, or other act of. purchase, but could not hold against the state ; he, therefore, took a defeasible es- tate, good against all except the state, and good against that until proceedings were instituted, and judgment obtained on its behalf by inquest of office. But an alien could not take by act of law, as by de- scent, because the law would be deemed [13] to do nothing in vain, and therefore it would not cast the descent upon one who could not by law hold the estate. Wilbur V. Tobey, 16 Pick. 179, 180 ; Foss v. Crisp, 20 Pick. 124, 12.5; Waugh v. Riley, 8 Met. 295 ; 2 Kent, 53, 54 ; Montgomery V. Dorion, 7 N. H. 475; Slater v. Nason, 15 Pick. 345 ; Jackson v. Adams, 7 Wend. 367 ; Fairfax u. Hunter, 7 Cranch, 603 ; Fox V. Southack, 12 Mass. 143; Smith v. Zaner, 4 Ala. 99 ; Eubec u. Gardner, 7 Watts, 455; Craig v. Leslie, 3 Wheat. 563; Doe v. Robertson, 11 Wheat. 332; Marshall v. Conrad, 5 Call, 364 ; Mooers V. White, 6 John. Ch. 360, 366 ; Scanlan 17. Wright, 13 Pick. 543 ; People v. Conk- lin, 2 Hill, 67 ; M'Creery v. AUender, 4 Harr. & M'H. 409; Fiott v. Common- wealth, 12 Grattan, 564. Statutes of a like character with that above cited from Massachusetts exist in many other states. And in some states provisions modifying the disability of alienage have been intro- duced into their constitutions. But it is to be observed, as stated by Chancellor Kent, that these civil privileges conferred upon aliens by state authority must be taken to be strictly local, and until a for- eigner is duly naturalized, according to the act of Congress, he is not entitled in any other state to any other privileges than those which the laws of that state allow to aliens. No other state is bound to ad- mit, nor would the United States admit, any alien to any privileges to which he is not entitled by treaty, or the law of na- tions, or of the state in which he dwells. 2 Kent, 70, 71. See 2 Sugden V. & P. (8th Am. ed.) 685, note {d) ; Lynch v. Clarke, 1 Sandf. Ch. 583. The statutes of several of the states and a synopsis of their provisions will be found in 1 Cruise Dig. by Mr. Greenleaf, tit, 1, § 39, in note, pp. 53, 54; Const. Iowa (1857), art. 1, sec. 22.] (c) Wentw. c. 1, p. 35, Uth ed. ; Vin. Abr. Devise, G. 17 ; Bac. Abr. Wills, B. 17. CH. I.] OF THE CAPACITY TO MAKE A WILL — THE KING. 17 With respect to the power of the reigning sovereign to make a will of his or her personal property; it appears by the The king Rolls of Parliament, that in the sixteenth year of King "^ i»^«"- Richard the Second " the bishops, lords, and commons assented in full parliament, that the king, his heirs and successors, might lawfully make their testaments." Qd) And the statute 39 & 40 George 3, c. 88, s. 10, enacts, " that all such personal estate of his majesty, and his successors respectively, as shall consist of moneys which may be issued or applied for the use of his or their privy purse, or moneys not appropriated to any public service, or goods, chattels, or effects, which have not or shall not come to his majesty or shall not come to his successors respectively, with or in right of the crown of this realm, shall be deemed and taken to be personal estate and effects of his majesty and his successors re- spectively, subject to disposition by last will and testament, and that such last will and testament shall be in writing, under the sign manual of his majesty and his successors respectively, or otherwise shall not be valid ; and that all and singular the per- sonal estate and effects whereof or whereunto his majesty or any of his successors shall be possessed or entitled at the time of his and their respective demises, subject to such testamentary disposi- tion as aforesaid, shall be liable to the payment of all such debts as shall be properly payable out of his or their privy purse, and that subject thereto, the same personal estate and effects of his majesty and his successors respectively, or so much thereof re- spectively as shall not be given or bequeathed or disposed of as aforesaid, shall go in such and the same manner, on the * demise of his majesty and his successors respectively, as the same would have gone if this act had not been made." But it should seem that the ecclesiastical court has no jurisdic- tion to grant any probate of the will of a deceased sovereign. On one occasion, (e) an application was made to the prerogative court of Canterbury for its process, calling on the proctor of his majesty. King George 4, to see and hear an alleged testamen- tary paper of his late majesty King George 3, propounded and proved ; but the court refused the application, on the ground that {d) 4 Inst. 335. Whether kings and resolved by a noli me tangere. See, also, sovereign princes can make their testa- Swinb. pt. 2, s. 27. ments, says Godolphin (pt. 1, c. 7, s. 4), (e) In the Goods of his late Majesty is resolved in the affirmative ; but of what George 3, 1 Add. 255. things is such a questio stat&s as is safest 2 [14] VOL. I. 18 OF THE CAPACITY TO MAKE A WILL — INFANTS. [PT. I. BK. II. in substance the process was prayed, and a demand adversely made, against the reigning sovereign; contrary to the estabhshed doctrine, that no action or suit, even in civil matters, can be brought against the king. The learned judge, Sir John Nicholl, in the course of his judgment, observed, that the history of the wills of sovereigns, from Saxon times, from Alfred the Great down to the present day, had been diligently searched and exam- ined ; but no instance had been produced of any sovereign havmg taken probate in the archbishop's court, or of any sovereign's will having been proved there ; (/) nor any instance of any suc- cessor of any intestate sovereign coming to the court for letters of administration; which the learned judge considered as furnishing decisive evidence that the * court had no jurisdiction whatever therein. (^) This decision was subsequently approved and acted on by Sir Cresswell Cresswell. (K) SECTION I. Persons incapable from Want of Discretion. In this class are to be reckoned infants, with respect to whom it is enacted by stat. 1 Vict. c. 26, s. 7, " that no will made by any person under the age of twenty-one years shall be valid." (A^) (/) One single instance occurs in the for safe custody or as a place of notoriety Bolls of Parliament of something like a for such a purpose. 1 Add. 263. reference to this jurisdiction in respect of (g) 1 Add. 262, 264, 265. a royal will. In the 1st of Henry 5 it is (A) In the Goods of his late Majesty stated that Henry 4, having made a will, Geo. 3, 3 Sw. & Tr. 199. and appointed executors thereof, those ex- (h>) [There is a strong tendency in the ecutors, fearing the assets would be insuf- legislation of the American States to es- ficient, declined to act. It is then recited tablish the age of twenty-one as that at that under these circumstances the effects which a person, whether male or female, would be at the disposal of the archbishop may make a will, either of real or personal of Canterbury as ordinary, who should estate. Such is the case in Massachusetts, direct them to be sold. But Henry 5, in- Maine, New Hampshire, Delaware, Mich- stead of allowing the effects to be sold, igan, New Jersey, Ohio, Indiana, Penn- took them, and agreed to pay their ap- sylvania, Florida, Kentucky, and probably praised value. 1 Add. 263; 4 Inst. 335. other states. See Moore a. Moore, 23 Texas, The only will of a sovereign deposited in 637. There is a distinction made in some the registry of the prerogative court is the of the states between the age at which a will of Henry 8. That is understood to person may make a will of personal, and be a copy merely, and there is no appear- that at which he may make a will of real ance of any probate of it having been estate. Thus in Virginia, Arkansas, taken. It was probably deposited there North Carolina, Bhode Island, and Mis- [15]] CH. I. § I,] OF THE OAPACITY TO MAKE A WILL — INFANTS. 19 This statute does not extend to any -will made before January 1, 1838 ; arjd it is, therefore, necessary to consider the law as ap- plicable to wills on which the act cannot operate. In such cases the doctrine is, that infants who have attained the age of fourteen, if males, and twelve, if females, are capable of mak- ing wills of personal estate. (A^) At these ages the Roman law al- lowed of testaments ; and the civilians agree that our ecclesiastical courts follow the same rule, (i) And as the ecclesiastical court is the judge of every testator's capacity, this case must be governed by the rules of the ecclesiastical law. (/c) But this doctrine is not sustained by the authority of civilians only : books of consid- erable authority, written by common lawyers, mention twelve and fourteen for the same purpose : (Z) prohibitions have been re- fused by the king's bench, when applied for to restrain the eccle- siastical court from allowing wills made at such early ages, (jw) and there are several instances in which the doctrine * has been recognized and adopted in the court of chancery, (w) These ages are also selected by the law of England as those when in- personal, estate, but as to real estate the age required is twenty-one in males and eighteen in females. In Maryland, the sonri, all persons may dispose of personal estate by will at the age of eighteen, but of real estate, not until twenty-one. As to North Carolina, see Williams v. Heirs, Bush. (N. C.) 271 ; as to South Carolina, see Posey v. Posey, 3 Strobh. (S. C.) 167. In Connecticut, the age of twenty-one is re- quired for a will of real estate, and seven- teen for personal estate. In some of the states a distinction is made between males and females as to the testamentaiy age. In New York, the age for making a will of personalty is eighteen in males and six- teen in females; but for a will of real estate the required age is twenty-one for all persons. In Iowa, the period of minor- ity extends in males to twenty-one years, in females to eighteen years. Laws of Iowa, Rev. of 1860, i;. 104, § 2539; see c. 100, § 2309. In Vermont, females arrive at majority, for all purposes, when they be- come eighteen years of age. " The statute of wills in this state, in general terms, limits the right of disposing of property by testament to persons of full age." Steele J. in Goodell v. Pike, 40 Vt. 319, 323. In Illinois, persons, both male and female, at seventeen years of age may make wills of period of testamentary capacity, as to real estate, is fixed at twenty-one in males and eighteen in females. In Texas, the age must be " twenty and upwards, in both males and females." Laws of 1840, p. 167 ; 4 Kent, 506 ; 1 Red. Wills, c. iii. sec. II. § 4, pi. 2. (7i2) [Deane v. Littlefield, 1 Pick. 239 ; 4 Kent, 506.] {i) Swinb. pt. 2, s. 2, pi. 6; Godolph. pt. 6, c. 8, s. 8. (i) 2 Bl. Com. 497. It must be borne in mind, that with respect to a devise of bands, by the provision of the statute of wills (32 & 34 Henry 8), infants under the age of twenty-one are intestable. (i!) Wentw. Off. Ex. v;. 18, p. 389, 14th ed. ; Touch. 403. (m) Smallwood v. Brickhouse, 2 Mod. 315; S. C. Show. 204; v. Chancel- lor of Lichfield, T. Jones, 210 ; Dalby ». Smith, Comberb. 50; 1 Gibs. Cod. 461. (n) Hyde v. Hyde, Prac. Chan. 316 ; S. C. Gilb. Eq. Rep. 74 ; Anon. Mosely, 5 ; Ex parte Holyland, 11 Ves. 11. [16] 20 OF THE CAPACITY TO MAKE A WILL — INFANTS. [PT. I. BK. II. fants of the respective sexes shall have the power of choosing guardians, (o) ^ In the case of Arnold v. Earle, (p) in the prerogative court of Canterbury, the will of a schoolboy of the age of sixteen in favor of his schoolmaster was established, where no evidence of fraud, improper influence, or control was shown, (q} But though no objection can be admitted to the will of an in- fant of fourteen, if a male, or twelve, if a female, merely for want of age, yet if the testator was not of sufficient discretion, whether of the age of fourteen or four-and-twenty, that will overthrow the testament, (r) No custom of any place can be good to enable a male infant to make any will before he is fourteen years of age. (s) When an infant hath attained the age above mentioned, he or she may make a will without and against the consent of their tutor, father, or guardian, (t} If he or she hath attained the last day of fourteen or twelve years, the testament *by him or her made in the very last day of their several ages aforesaid is as good and lawful as if the same day were already then expired, (m) Likewise, if after they have accomplished these years of fourteen or twelve, he or she do expressly approve of the testament made in their minority, the same by this new will and declaration is made strong and effectual, (a;) But the mere circumstance of an infant having lived some time after, the age when he became ca- pable of making a will, cannot, without republication, give valid- ity to one made during his incapacity. (?/) (o) Co. Lit. 89 b, note (83), by Har- (p) MS. coram Sir Geo. Lee, 5th June, grave. There are, however, many irrec- 1758, cited in 4 Burn E. L. 45, note (9), oncilable opinions on the subject, in the by Tyrwhitt; S. C. 2 Cas. temp. Lee, 529. books. Lord Coke states eighteen to be (?) See, also, Ames v. Ward, Prer. T. the age, Co. Lit. 89 b, and others men- T. 1767, coram Sir Geo. Hay, lb. tion seventeen, that being the age when, (r) 2 Bl. Com. 497 ; [Deane v. Little- before the stat. 38 Geo. 3, c. 87, an ad- field, 1 Pick. 243.] ministration during the minority of an (s) Garmyn v. Arstete, 2 And. 12 ; Go- executor determined. Others mention dolphin, pt. 1, c. 8, s. 1 ; Com. Dig. De- twenty-one, because none can be admin- vise, H. 2 ; 4 Burn E. L. 46. istrators till that age. And in Perkins (<) Swinb. pt. 2, a. 2, pi. 6 ; Bac. Abr. four is said to be the age for making a Wills, B. 1. will of personalty; but this is supposed to (u) Swinb. pt. 2, s. 2, pi. 7 ; Herbert v. be a mere error of the press by omission Torball, Sid. 162; Com. Dig. Devise, H. of the figure X. and most probably XIIII. 2 ; Godolphin, pt. 1, c. 8, =. 1 ; Bac. Abr. was the age intended. Swinb. pt. 2, s. 2, Wills, B. 2. note (/); Co. Lit. 89 b, note (83), by (x) lb. Hargrave. (j,) Herbert v. Torball, 1 Sid. 162; CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — IDIOTS. 21 Idiots. An idiot, that is, a fool or madman from his nativity, who never has a,nj lucid intervals, (z) is incapable of making a will, (s^) Such a one is described to be a person who cannot number twenty, tell the days of the week, does not know his own father or mother, his own age, &c. (a) But these, though they may be evidences, yet they are too narrow, and con- clude not always ; (5) for whether idiot or not is clearly a ques- tion of fact, referrible to the individual circumstances of each par- ticular case. (6^) If an idiot should make his testament so well and wisely in appearance that the same may seem rather to be made by a reasonable man than by one void of discretion, yet this testament is void in law. (c) One who is deaf and dumb from his nativity is, in presumption of law, an idiot, and therefore incapable of making a p^^f ^^j will ; but such presumption may be rebutted, and if it dumb, sufficiently appears that he understands what a testament means, and has a desire to make one, then he may by signs and tokens declare his testament, (c?) One who is not deaf * and dumb by Harper v. Harper, 1 N. Y. Sup. Ct. Eep. 354.1 {d) Swinb. pt. 2, b. 4, pi. 2; Godolph. pt. 1, c. 11 ; [Potts V. House, 6 Geo. 324 ; In re Harper, 6 M. & Gr. 731 ; 7 Scott N E. 431 ; Brewer v. Pishcr, 4 John. Ch. 441 ; Christmas u. Mitchell, 3 Ired. Ch 535 ;] 4 Burn E. L. 60. See, also, Dick- enson V. Blisset, 1 Dick. 268 ; and the Swinb. pt. 2, s. 2, pi. 5. [In computing the age of a person, the day of his birth is included ; thus, if he were born on the first day of January, 1800, he would have attained his majority on the thirty-first day of December, 1820; and as the law does not recognize fractions of a day, he would have attained his majority at the earliest minute of that day. Bardwell v. Purrington, 107 Mass. 425 ; Herbert v. Torball, 1 Sid. 142 ; S. C. Kaym. 84 ; The State V. Clark, 3 Harring. 557 ; Ham- lin I/. Stevenson, 4 Dana, 597; Wells v. Wells, 6 Ind. 447 ; Fitzhugh v. Denning- ton, 6 Mod. 259; S. C. 1 Salk. 44; 2 Kent, 233.] (z) 1 Hale P. C. 29 ; Bac. Abr. Idiots, &c. A. 1 ; Beverley's case, 4 Co. 124 b. (zi) [See Stewart v. Lispeuard, 26 Wend. 255, per Verplanck, Senator.] (a) 1 Hale P. C. 29 ; Bac. Abr. Idiots, &c. A. ; Swinb. pt. 2, b. 4. [See Hovey V. Chase, 52 Maine, 304, 315.] (6) 1 Hale P. C. 29. (Ji) [See Rambler v. Tryon, 7 Serg. & R. 90 ; Shelford Lunacy, 276.] (c) Swinb. pt. 2, s. 4, pi. 5, 7; Bac. Abr. Wills, B. 12 ; [per Potter J. in judgment of Wood V. C. in Harrod v. Harrod, 1 Kay & J. 4, 9. Where a testa- tor, who was deaf and dumb, made his will by communicating his testamentary instructions to an acquaintance by signs and motions, who prepared a will in con- formity with such instructions, which was afterwards duly executed by the testator, the court required an affidavit from the drawer of the will, stating the nature of the signs and motions by which the in- structions were communicated to him. In the Goods of Owston, 2 Sw. & Tr. 461. See, also, accord. In the Goods of Geale, 3 Sw. & Tr. 431; [Moore v. Moore, 2 Bradf Sur. 265. It is doubtful whether at this day any presumption of mental in- capacity exists in regard to this class of persons. In proving the will of a deaf [18] 22 OF THE CAPACITY TO MAKE A WILL — BLIND. [PT. I. BK. H. nature, but being once able to hear and speak, if by some acci- dent he loses both his hearing and the use of his tongue, then in case he shall be able to write, he may with his own hand write his last will and t(5stament. (e) But if he be not able to write, then he is in the same case as those which be both deaf and dumb by nature, i. e. if he have understanding he may make his testa- ment by signs, otherwise not at all. (/) Such as can speak and cannot hear, they may make their testaments as if they could both speak and hear, whether that defect came by nature or otherwise. (^) Such as be speechless only, and not void of hear- ing, if they can write, may very well make their testament them- selves by writing : if they cannot write, they may also make their testaments by signs, so that the same signs be sufficiently known to such as then be present. (A) It is laid down in the old text-books of the ecclesiastical law. Blind per- *^^* although he that is blind may make a nuncupative sons. testament, («) by declaring his will before a sufficient number of witnesses ; yet that he cannot make his testament in writing, unless the same be read before witnesses, and in their presence acknowledged by the testator for his last will ; Qk") and that, therefore, if a writing be delivered to the testator, and he not hearing the same read, acknowledged the same for his will, and dumb person it should, of course, be superfluous to observe, that, in propor- shown that the obstacles created by his tion as the infirmities of a testator ex- physical infirmity had been overcome and pose him to deception, it becomes impera- his mind had been reached and communi- lively the duty, and should be anxiously cated with, so that he was cognizant of the the care, of all persons assisting in the act, knew and approved of the contents of testamentary transaction, to be prepared the will, and comprehended the force and with the clearest proof that no imposition purpose of the business he was engaged had been practised." 1 Jarman Wills (3d in when he was doing it. See Shelford Eng. ed.), 29.] Lunacy, 3, 4 ; Potts v. House, 6 Geo. 324; (e) Swinb. pt. 2, s. 10, pi. 2 ; Godolph. Morrison v. Lennard, 3 C. & P. 127 ; State pt. 1, t. 11. V. De Wolf, 8 Conn. 93; 7 Ency. Brit. (/) Swinb. pt. 2, ». 10, pi. 2; Godolph. (7th ed.) 645, art. Deaf & Dumb; Weir pt. 1, c. 11. V. Fitzgerald, 2 Bradf. Sur. 42. As to {g) lb. persons deaf, dumb, and blind, Richard- (h) Swinb. pt. 2, s. 10, pi. 4; Godolph. son J. in Keynolds v. Reynolds, 1 Spears, pt. 1, c. 11 ; [Potts i'. House, 6 Geo. 324.] 256, 257, said : " I would not say that it is (i) See post, chap. ii. § vi. as to the absolutely impossible (although so consid- restrictions on nuncupative wills. ered by great writers) that even a blind, {k) Swinb. pt. 2, s. 11 ; Godolph. pt. 1, deaf, and dumb man can make a will." c. 11. [A blind person may make a will. See Weir v. Fitzgerald, 2 Bradf Sur. 42. Ray v. Hill, 2 Strobh. 297 ; In the Goods Mr. Jarman observes that " it is almost of Piercy, 1 Robert. 278.] CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — LUNATICS. 23 this would not be sufficient ; for it may be * that if he should hear the same he would not own it. (I') And the civil law expressly- required that the will should be read over to the testator, and ap- proved by him, in the presence of all the subscribing witnesses. But in England this strictness is not required, and it is sufficient if there is satisfactory proof before the court of the testator's knowledge and approval of the contents of the will which he exe- cuted ; (to) and it is not necessary to produce evidence that the identical paper which the testator executed as his will was ever read over to him. (n) And what precautions are necessary for authenticating a blind man's will, seem in like degree requisite in the case of a Persons 1 T Vi 1 1 T 1 ■ .1 who cannot person who cannot read, h or though the law in other read, cases may presume that the person who executes a will knows and approves of the contents thereof ; yet that presumption ceases, where, by defect of education, he cannot read or by sickness he is incapacitated to read the will at that time, (o) A lunatic, that is, a person usually mad, but having intervals of reason (^) during the time of his insanity, cannot make ■ a testament, nor dispose of anything by will, (^q) And " so strong is this impediment of insanity of mind, that if the testator make his testament after his furor has overtaken him, and while as yet it possesses his mind, although the furor after departing or ceasing, the testator recover his former understand- ing, yet does not the testament made during his former fit recover any force or strength thereby.'' (r) * If a party impeach the validity of a will on account of a sup- {l) lb. See, also, Barton v. Robins, 3 an, 3 "Wash. C. C. 585.] See, also, Long- Phillim. 455, note (5). champ v. Fish, 2 K R. 415; post, pt. i. (m) 4 Burn B. L. 60; Moore v. Paine, bk^ it. ch. iii. § v. 2 Cas. temp. Lee, 595 ; [Wampler c. (o) 4 Burn E. L. 61 ; Barton u. Robins, Wampler, 9 Md. 540 ; Martin v. Mitchell, 3 Phillim. 455, note (5) ; [Day v. Day, 28 Geo. 382.] See, also. In re Axford, 1 2 Green Ch. 549; post, 115, note (x^).] Sw. & Tr. 540. The single oath of the See post, pt. i bk. it. ch. iii. § t. writer has been allowed sufficient by the (p) Beverley's case, 4 Co. 124 b. court of delegates to prove the identity of (q) Swinb. pt. 2, s. 3 ; Godolph. pt. 1, u. the will. lb. 8, s. 2. (n) Pincham c. Edwards, 3 Curt. 63 ; (r) Swinb. pt. 2, s. 3, pi. 2 ; Godolph. affirmed on appeal, 4 Moore P. C. 198 ; pt. 1, c. 8, s. 2. But a will is not revoked [Hess's Appeal, 43 Penn. St. 73 ; Boyd v. by the subsequent insanity of the testator. Cook, 3 Leigh, 32 ; Clifton v. Murray, 7 Swinb. pt. 11, s. 3, pi. 3 ; 4 Co. 61 6 ; post, Geo. 564; Lewis v. Lewis, 6 Serg. & R. pt. i. bk. ii. ch. in. § T. 496 ; Washington J. in Harrison v. Row- [19] [20] 24 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. IL posed incapacity of mind in the testator, it will be incumbent on such the party to establish such incapacity by the clearest and most satisfactory proofs, (s) The burden of proof rests upon the person attempting to invalidate what, on its face, purports to be a legal act. (0 Sanity must be presumed till the contrary is shown, (m) Hence, if there is no evidence of insanity at the time of giving the instructions for a will, the commission of suicide, three days after, will not invalidate the instrument by raising an inference of previous derangement, (a;) But it must be borne in mind, that the presumption of san- Presump- jty is not to be treated as a legal presumption, (a;^) sanity. but, at the utmost, as a mixed presumption of law and fact (if not as a mere presumption of fact), that is, an inference (s) The law seems unsettled as to how far, in cases of alleged unsoundness of mind, hereditary constitutional insanity may be pleaded. Trere v. Peacocke, 3 Curt. 664. [It is competent on the trial of an issue of the testator's sanity, to show the insanity of his parents and of his uncle. Baxter v. Abbott, 7 Gray, 71, 81, 82; Tyi-rell v. Jenner, cited 3 Curt. 669; Frere v. Peacocke, 3 Curt. 664; Shailer v. Bumstead, 99 Mass. 112, 131; Snow V. Benton, 28 III. 306. See Shelford Lunacy, 59, 60. But it seems such evi- dence is not admissible in aid of proof showing mere weakness of mind or eccen- tricity. Colt J. in Shailer v. Bumstead, 99 Mass. 131. Mere moral insanity, that is, disorder of the moral affections and propensities, will not, unless accompanied by insane delusion, be sufficient to invali- date a will or to incapacitate a person to make one. Boardman o. Woodman, 47 N. H. 120, 136-139 ; Erere a. Peacocke, 1 Kobertson Ecc. 442 ; Forman's Will, 54 Barb. 274. See 3 Am. Law^eg. N. S. 385 ; Smith v. Commonwealth, 1 Duvall (Ky.), 224 ; Bitner v. Bitner, 65 Penu. St. 347.] (t) 2 Phill. Ev. 293, 7th ed. («) Groom v. Thomas, 2 Hagg. 434 ; [Trumbull v. Gibbons, 2 Zabr. 117, 155; Sloan V. Maxwell, 2 Green Ch. 581.] (x) Burrows v. Burrows, 1 Hagg. 109. See, also, Hoby ■ pre- sumption of fact, or, at the utmost, of law and fact, in favor of sanity, on which the party offering the will for probate may rely, as making him n prima facie case, until it is balanced by evidence to the con- trary. In a recent case in Vermont (Wil- liams V. Bobinson, 42 Vt. 658), it was con- tended by the party propounding a will, that the burden of proving incapacity in the testator rested on the contestant. This was the only point raised far decision. The court held that the burden of proving the due execution of the will and the capacity of the testator was on the proponent of the will. " In the course of the trial the bal- ance of testimony may fluctuate from one side to the other, but the burden of proof remains where it was at the outset, and unless at the close of the trial the balance is with the proponent, he must fail. It is not sufBcient that the scales stand even; there must be a preponderance in his fa- vor." But the remarks of the learned judge who delivered the opinion of the court took a wider range. "The pro- ponent," he said, "presents the instru- ment and asks the court by its judgment to establish it as the last will and testa- ment of the deceased. There is no pre- sumption in its favor By our statute, 'every person of full age and sound mind' may dispose of all his estate, both real and personal, by his will executed in accord- ance with the requirements of the statute. No person, unless of full age and sound mind, can so dispose of his property. Hence, when the proponent presents the instrument, he must satisfy the court that the deceased, at the time he executed the will, belonged to the class of persons that by law can make wills This burden is upon him at the outset, even when there is no contest about the will The capacity of the testator .... must be estab- lished by the proponent, even if it is not denied." Having disposed of the point at issue against the proponent upon his assumption of a presumption of sanity changing the burden of proot; the learned judge added : " I have thus far been con- sidering the case upon the supposition that there is a legal implication that where a will is executed in due form, the person executing it had the requisite capacity. If there is such a presumption, from what CH. I. § l.j OF THE CAPACITY TO MAKE A WILL — LUNATICS. 29 summing up told the jury " that the heir-at-law was entitled to recover unless a will was proved, but that, when a will was pro- does it arise ? Certainly it cannot arise from the fact that the great majority of manliind have sufficient capacity. The law -will no more imply capacity from such a cause than it will imply that all men are white because a majority are," ,&<:. Now it is obvious to remark, in the first place, that the case of Sutton v, Sad- ler, and the text, following it, expressly re- pudiate the idea of any legal presumption or implication of sanity. The suggestions of the court, however, strike as well at the existence of the natural as of the legal presumption. It is also manifest that the learned court has entirely misapprehended the foundation of the presumption. It does not rest on the assumption that the great majority of mankind are sane or in- sane, but on the ground that the general condition of the human mind in its natu- ral, normal state, is one of soundness ; that unsoundness of mind is a diseased con- dition and abnormal. The presumption is, that the natural, sound, and healthy con- dition of mind continues, until there is at least some evidence to raise a doubt about it. It is the ordinary presumption of con- tinuance, applied to a condition of mind known once to have existed. In conclu- sion of the above case, the court say : "Upon the whole, we think the better rule is that which throws the burden on the proponent to prove the due execution of the will, and the capacity of the person executing it." This conclusion is cer- tainly well supported by the current of authority. This subject has been discussed with much learning and ability in several cases in Michigan. The result upon the point under consideration is given in Aikin V. "Weckerly, 19 Mich. 482, 502, 503. There were three witnesses to the will propounded for probate in this case, and all of them were present to testify. One of them does not appear to have given any opinion as to the sanity of the testator ; the other two gave their opinion : one, that the testator's mind was sound; the other, that it was unsound. The statute of the state re- quires the testator to be of sound mind. The court, addressing itself to the point in dispute, said : " It is seen that the ground really occupied by proponent is that the presumption of testamentary capacity sup- plies all the evidence on that subject which the law requires, unless such counter-proof is offered as will overcome this presump- tion, and that even in cases where a con- testant introduces opposing evidence on the issue of testamentary ability, the law casts upon him the burden of showing in- capacity by some amount of proof not less than a preponderance. This view neces- sarily assumes that, without further proof than is supplied by this presumption, the iinding should be in favor of competency in all cases where the probate is unop- posed, and in all contested cases, where no evidence is given by contestant on the point of testamentary ability, or where the opposing evidence submitted on that subject will no more than balance the pre- sumption. This position is believed to be untenable. This court decided in Beau- bien u. Cicotte, 8 Mich. 9, that the pro- ponent of a testamentary paper for pro- bate was required to aver the soundness of mind of the testator at the time of ex- ecution, and that the burden of proving the fact rested on him The case of Taff V. Hosmer, 14 Mich. 809, however, not only affirms that proponent before rest- ing is hound to make a prima Jade case on the averment of soundness of mind, but is an authority that the necessity of making such a case on that point involves the pro- duction of some other evidence of testa- mentary capacity than is furnished by the legal presumption. It is true that this last proposition is not explicitly laid down in Taff v. Hosmer, but the opinion of my brother Cooley noticed the fact that pro- ponents in that case before resting had submitted evidence in aid of the presump- tion of law, and treated the course so pur- sued as agreeable to usage and correct in 30 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. duced, and the execution of it proved, the law presumed sanity, and therefore the burden of proof was shifted ; (a:*) and that principle." Tliis language of the court is quite clear and intelligible. It admits the existence of the presumption, inadvert- ently, however, styling it a presumption of law, and concedes to it some influence, precisely what the couit does not state, but treats it as too feeble, without the aid of other evidence, to sustain the burden of proof, even in cases where no conflicting evidence is offered by the contestant. In the later case of Kempsey v. McGinniss, 21 Mich. 123, 148, the same court say : " In this particular class of cases, and upon the question of soundness or unsoundness, after a prima facie case has been estab- lished by the proponents, the case, for all purposes connected with the order of proof upon that question, stands the same as if the burden of proof throughout rested upon the contestant to show mental capacity.'' See post, 342, note (0-), as to the course of proceeding and order of proof, in Michi- gan, on an issue of sanity. The statute of wills in Connecticut provides that all per- sons of sound minds may make wills, and in the late case of Knox's Appeal, 26 Conn. 20, where a codicil to a will was offered for probate, and it was opposed on the ground that the testator had not the requisite capacity, the contestants claimed that the statute was an enabling act, under which a party must show that all its requirements have been complied with, in order to es- tablish a claim under it, while on the other hand the proponents contended that when they had proved the codicil to have been executed and published according to the provisions of the statute, the law would presume the requisite testamentaiy capac- ity; but the court ruled that the proponents were bound to go farther in their proof than merely to prove the execution of the codicil ; and that without some evidence of capacity the law did not presume it, as in the ordinary case of a party who executes a deed or other contract ; and it was de- cided, " without reference to the question whether the statute was, or not, an en- abling act," that this ruling was in con- formity to the uniform practice in Con- necticut, where the question has arisen in cases regarding the validity of wills. The court say: "It is undoubtedly true that there are conflicting decisions on this point ; and it may be said that our practice is in conflict with the principle that a party is presumed to be capable of performing any legal act," and they make a distinction in regard to wills on account of their greater solemnity and importance, and the cir- cumstances under which they are often made. See Christiancy J. in Beaubien V. Cicotte, 8 Mich. 9, 11, 12. All the cases, of course, hold that sanity is neces- sary to the power of making a. valid will. And, so far as we have proceeded, all the cases hold that the burden of prov- ing sanity is on the party affirming the validity of the will. See, also, Renn v. Lamon, 33 Texas, 760; Tingley u. Cow- gill, 48 Missou. 291 ; Comstock .v. Had- lyme, 8 Conn. 261. It is also veiy gen- erally conceded that there is to some ex- tent a presumption of fact, or of law and fact, in favor of sanity. See, further, Cot- ton V. Ulmer, 45 Ala. 378;. Turner v. Hand, 3 Wallace jr. 88 ; Matter of Hutch- ins, 7 Phil. (Penn.) 69; Werstlerw. Custer, 46 Penn. St. 602 ; Thompson v. Kyner, 65 Penn. St. 368 ; Perkins v. Perkins, 39 N. H. 163, 169, and cases cited. The main difference, among the cases thus far con- sidered, lies in a matter of practice — some courts requiring that testimony, beyond the mere formal proof of execution, should be introduced in aid of the natural pre- (x*) [See the remarks upon this matter Brooks v. Barrett, 7 Pick. 99, 100 ; War- of the shifting of the burden of proof, in ing v. "Waring, 6 Moore P. C. 355 ; Judge Crowninshiold v. Crowninshield, 2 Gray, of Probate v. Stone, 44 N. H. 593, 602.] 524; Baldwin v. Parker, 99 Mass. 87; CH. I. § I.J OF THE CAPACITY TO MAKE A WILL — LUNATICS. 31 the devisee must prevail, unless the heir-at-law established the in- competency of the testator, and that if the evidence was such as sumption of sanity, in order to make out a, prima facie case which would authorize a decision in favor of the will, even if no evidence were introduced by the contest- ant. Other courts regard the presump- tion of sanity as making a technical prima facie case for the proponent. In Perkins V. Perkins, 39 N. H. 163, 171, cited above, Mr. Chief Justice Bell, in closing his opin- ion, said : " This question has been dis- cussed elsewhere with much diligence and keenness, but it is, after all, a question merely verbal ; a question of propriety of certain forms of expression ; for we ap- prehend that whatever may be the terms used, the course of practice is everywhere the same.'' There are, however, decisions of other courts upon this subject, between which and those above referred to, there is a more substantial difference. I refer to those in which it has been held, that the burden of proving that the testator was of unsound mind at the time of executing a paper propounded as his will is upon the party claiming that the will is invalid for that cause ; and that there is no difference in this respect between wills and deeds or other instruments. In Sloan o. Maxwell, 2 Green Ch. 580 (New Jersey), it is said to be a fixed principle " that whenever the formal execution of a will is duly proved, he who wishes to impeach it on the ground of incompetency, must support by proof the allegation he makes, and thereby over- come the presumption, which the law raises, of the sanity of the testator." In Tyson u. Tyson, 37 Md. 567 (Mary- land), one of the issues made was on the question whether certain codicils were exe- cuted by the testator when he was of sound and disposing mind, and capable of exe- cuting a valid deed or contract ; and the court said : " To sustain the issues then on the part of the caveators, it was incum- bent on them to offer reasonable evidence to show that the testator was not of sound and disposing mind, and capable of exe- cuting a valid deed or contract at the time of the execution of the codicils." See Davis V. Calvert, 5 Gill & J. 300. In Hig- gins V. Carlton, 28 Md. 115, 141, Brent J. said, that all the decisions " agree upon the general proposition, that sanity is pre- sumed by law. But in some of the states it is held, that this general presumption does not apply to last wills and testaments, — they forming an exception to the rule, — and that, therefore, a party propounding a will must not only prove execution, but must also oflFer positive proof of capacity. A different mle, however, is recognized in most of the American courts ; and it is sustained by reason and weight of author- ity. If the presumption of law is in favor of sanity, we can discover no satisfactory reason why it should not be applied to wills, as well as to any other instrument of writing. The argument drawn from the fact, that the statute requires the testa- tor to be ' of sound and disposing mind,' if a good one, would apply with equal force to the other requirements of the stat- ute. The testator, in terms as affirmative as those in reference to capacity, is re- quired to be of a certain age fixed by the statute. Yet no court has ever required a party propounding a will to prove the age of the testator, until the question was raised upon proof by the contestants The rule is distinctly laid down as a logi- cal conclusion from the presumption in favor of sanity, that the ' burden of proof lies upon the person who asserts unsound- ness of mind.' .... The practice in this state has been in conformity to these views of the law. The caveators have always taken the position of plaintiffs, and have had the right to open and close. Brooke V. Townshend, 7 Gill, 24. It is true that it is said in Cramer v. Crumbaugh, 3 Md. 501, that the party propounding a will has the onus imposed on him, and he must dis- charge it by proof of capacity and the fact of execution. But the quo modo of proof must be in harmony with other recognized rules and principles. If capacity be estab- 32 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. to make it a measuring cast, and to find for the defendants : (2:^) tion. (y) lished by eridence of a fact from which it is to be presumed, ' proof of capacity ' has in reality been given, and the onus cast upon the party propounding a will is dis- charged by proof of execution, because that being proved, the presumption of ca- pacity follows.'' In Chandler v. Perris, 1 Harr. 454, 461 (Delaware), Clayton C. J. said : " We are not to be governed by the question, who affirms or who denies the issue, but where is the onus probandi f The burden here is upon the caveators. They do not deny the execution of the will, but set up insanity and such an in- fluence exercised by others over the testa- tor's mind as will vitiate the will. After the formal proof of the paper, the execu- tor might fold his arms until the cave- ators produced something to overthrow his case, which is prima facie established by the production of the will and the in- ference of law in favor of sanity." This same doctrine respecting the burden of proof is supported in many other cases. See Jackson v. Van Deusen, 5 John. 144 ; Dean v. Dean, 27 Vt. 746; Hoge v. Ksher, 1 Peters, 163 ; Trumbull v. Gib- leave them in doubt, they ought this was held to be a misdirec- bons, 2 N. Jer. 117; Jackson v. King, 4 Cowen, 207; Hawkins v. Grimes, 13 B. Mon. 257 ; Brooks u. Barrett, 7 Pick. 98, 99 (overruled on this point by Crownin- shield V. Crowninshield, 2 Gray, 524) ; Pettes V. Bingham, 10 N. H. 514 (also overruled on this point in Perkins v. Per- kins, 39 N. H. 163, 171); 2 Greenl. Ev. § 689 ; Grabill u. Barr, 5 Penn. St. 441 ; Stevens v. Vancleve, 4 Wash. C. C. 262. In a very late case in New York (Harper 0. Harper, 1 N. Y. Sup. Ct. 351, 355), Potter J. said : " It is now the established law of this state, that the legal presump- tion, to begin with, is that every man is compos mentis, and the burden of proof that he is nan compos mentis rests on the party who alleges that unnatural condition of mind existing in the testator. Dela- field V. Parish, 25 N. Y. 9. But it is also the rule, that in the first instance, the party propounding the will must prove the mental capacity of the testator." Much of the conflict among the cases has arisen from treating the presumption of sanity in case of wills as one of law — a legal presumption — and then holding that the (x^) [See Williams u. Robinson, 42 Vt. 658, 664. Where the evidence, relating to the testator's mental soundness, aside from the presumption of sanity, is evenly balanced, it was held in McGinnis v. Kempsey, 27 Mich. 363, that the jury should not permit that presumption to tnrn the scale in favor of competency. In this case, Graves J. said : " When the question of capacity is actually contro- verted in case of a paper propounded as a will, it devolves upon the proponents to establish capacity by other evidence than is aiforded by the common law presump- tion in favor of soundness of mind, and the measure of the evidence to establish must exceed that given in opposition. Perhaps it would be going too far to say that the statute in requiring substantive proof of testator's soundness of mind as a prerequisite to the establishment of the will, intended to put aside altogether and for all cases, the common law presump- tion in favor of sanity. But, conceding the existence of the presumption as a, principle to operate, subject to circum- stances, it is very clear that it cannot have the foice of an independent fact to serve as a substantial makeweight against counter-proof."] (y) Sutton ... Sadler, 3 G. B. (N. S.) 87. See, also, accord. Symes v. Green, 1 Sw. & Tr. 401 ; [1 Jarman Wills (3d Eng. ed.), 30, note (c).] As to the onus of showing sanity at the time of mutilation, in order to set up a revocation, see Harris u. Berrall, 1 Sw. & Tr. 153 ; post, p. 42. CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — LUNATICS. 33 If a lunatic person have clear or calm intermissions (usually called lucid intervals), then during the time of such ■^;„ ^^^^j^ quietness and freedom of mind he may make his testa- ?"■■.'?? * ^ _ _ ' _ -" _ . lucid inter- ment, appointing executors, and disposing of his goods vai: at pleasure. (2) " If you can establish," said Sir Wm. transfer in Wynne, in the case of Cartwright v. Cartwright, (a) of°oreMs^^ " that the party afflicted habitually by a malady of the i'™'««''»- mind has intermissions, and if there was an intermission of the burden of proof is upon the person who has the benefit of that presumption ; one side viewing it as a fallacy to require a party to give positive proof of the exist- ence of a fact which the law would presume without proof; and the other regarding it next to a solecism that there could be a presumption of law in favor of a party who at the same time had and continued to have the burden of proof. So when it was settled in one court that there was a legal presumption of sanity in favor of the proponent, it followed quite logically that the burden of proof was on the contestant ; and on the other hand, when it was settled in another court that the burden of proof in the issue of sanity was on the propo- nent, it followed equally logically that there could then be no legal presumption in his favor. This difficulty is avoided by treating the presumption as one of fact, making only a prima facie case in favor of the proponent, without relieving him of the burden of proof, according to the rule stated in the text. If, however, there be any irreconcilable conflict, it must be left as we find it. On the trial of an issue of sanity, the party setting up the will, where the burden of proof is upon him, goes for- ward and has the opening and close. Boardman v. Woodman, 47 N. H. 120; Judge of Probate v. Stone. 44 N. H. 593, 602; Perkins v. Perkins, 39 N. H. 163, 167 ; Comstock v. Hadlyme, 8 Conn. 261 ; Brooks V. Barrett, 7 Pick. 96; Ware w. Ware, 8 Greenl. 42 ; Phelps v. Hartwell, I Mass. 71, 73, and note; Buckminster v. Perry, 4 Mass. 593; Potts i>. House, 6 Geo.' 324; Rigg v. Wilton, 13 III. 15; Keinpsey f. Mc6inniss,21 Mich. 123, 147 ; VOL. I. 3 Aikin V. Weckerly, 19 Mich. 482; Wil- liams V. Eobinson, 42 Vt. 658 ; Robinson V. Adams, 62 Maine, 369 ; Taif v. Hosmer, 14 Mich. 310. But in Maryland, the party alleging the insanity of the testator, hav- ing the burden of proof in that state on that issue, has the opening and close. Brooke V. Townshend, 7 Gill, 24; Higgins v. Carl- ton, 28 Md. 143. So in Delaware, when the contestant does not deny the formal execution of the will, he has the opening and close. Chandler v. Ferris, 1 Harr. 460, 461 ; Bell v. Buckmaster and Cab- bage V. Cubbage, lb. notes. See Moore v. Allen, 5 Ind. 521. On an appeal from the ordinary in the court of common pleas in South Carolina, in the case of a will, the matter is not to be tried de novo. The ap- pellee having the decision of the court below in his favor, his rights are held to be fixed. The appellant files a suggestion, setting forth the proceedings of the ordi- nary's court, and then assigns specifically the supposed errors in the judgment of that court. The appellant becomes the actor; he aflSrms the truth of the issues, whether on the question of sanity or other- wise, and has the opening and close in the evidence and argument. Southerlin u. M'Kinney, Rice, 35 ; Tillman v. Hatcher, Rice, 271.] [z] Swinb. pt. 2, ». 3, pi. 3 ; Godolph. pt. 1, c. 8, s. 2 ; Wentw. c. 1, p. 33, 14th ed. ; Hall v. Warren, 9 Ves. 610 ; Rodd o. Lewis, 2 Cas. temp. Lee, 176 ; [Brock v. Luckett, 4 How. (Miss.) 459 ; Symes v. Green, 1 Sw. & Tr. 401 ; Nichols v. Binns, 1 Sw. & Tr. 239.] (a) 1 Phillim. 100. See the particulars of this case, post, 23. 34 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. disorder at the time of the act, that being proTed is sufficient, and the general habitual insanity will not affect it ; but the effect of it is this, it inverts the order of proof and of presumption ; for until proof of an habitual insanity is made, the presumption is that the party agent, like all human creatures, was rational ; but where an habitual insanity, in the mind of the person who does the act, is * estabhshed, there the party who would take advantage of an interval of reason must prove it." (6) But although the law recognizes acts done during such inter- vals as valid, yet it is scarcely possible to be too strongly sufficient impressed with the great degree of caution necessary to fucid inter- be observed in the examining the proof of a lucid inter- ™'" val ; (c) and such proof is matter of extreme difficulty, for this, among other reasons, viz, that the patient is, not unfre- quently, rational to all outward appearance without any real abatement of his malady. Qd) On the other hand, if the deceased was subject to attacks producing temporary incapacity, and was at other times in full possession of his mental powers, such attacks may naturally create in those who only happened to see him when subject to them a strong opinion of his permanent incapacity, (d^^ (6) See, also, the same doctrine laid v. Grant, 2 Green Ch. 629 ; Boyd v. Eby, down by Lord Thurlow in Attorney Gen- 8 Watts, 66 ; Harden v. Hays, 9 Penn. St. eral v. Parnther, 3 Bro, C. C. 443, and Sir 151 ; Duffield v. Morris, 2 Harring. 375 ; W. Grant in Hall w. Warren, 9 Ves. 611. Whitenach v. Stryker, 1 Green Ch. 8; See, also, Swinb. pt. 2, a. 3, pi. 7, where it Clark v. Fisher, 1 Paige, 171, 174 ; Jack- is said, that if it be proved that the testa- son v. Vandusen, 5 John. 144, 159 ; Rush tor was once mad, the law presumeth him v. Megee, 36 Ind. 69 ; Gangwere's Estate, to continue still in that case, unless the con- 14 Penn. St. 417 ; Hoge v. Eisher, 1 Peters trary be proved. See, also, Godolph. pt. 1, C. C. 163 ; Cochran's Will, 1 Monroe, 263 ; c. 8, s. 2; White v. Driver, 1 Phillim. 88 ; Wood v. Sawyer, Phill. (N. Car.) Law, Groom v. Thomas, 2 Hagg. 434 ; Waring 251.] But where the attesting witnesses, V. Waring, 6 Moore P. C. 341 ; S. C. 5 Notes disinterested medical men, speak strongly of Cas. 296; 6 Notes of Cas. 388; Gri- to sanity, the conrt will not set aside a will maniv. Draper, 6 Notes of Cas. 418; John- on proof by interrogatories, but without son V. Blane, 6 Notes of Cas. 422 ; Fowlis plea, that the deceased many years before V. Davidson, 6 Notes of Cas. 461, 474. had been under an insane delusion. Kem- [The proof of intelligent action must be ble v. Church, 3 Hagg. 273. clear and satisfactory, in order to establish (c) By Sir John NichoU in White t;. a will made during a lucid interval. Gom- Driver, 1 Phillim. 88. bault V. The Public Administrator, 4 {d) By Sir John NichoU in Brcden v. Bradf. Sur. 226 ; Lucas v. Parsons, 27 Geo. Brown, 2 Add. 445, and in Ayroy v. Hill, 593 ; Chandler v. Barrett, 21 La. An. 58 ; 2 Add. 210. Puryear v. Keese, 6 Coldw. (Tenn.) 21 . (rfi) [Post, 23, note (/i).] Halley v. Webster, 21 Maine, 461 ; Goble [22] CH. I. § I.j OF THE CAPACITY TO MAKE A WILL — LUNATICS. 35 These considerations, while they tend to reconcile the apparent contradictions of witnesses, render it necessary for the court to rely but little upon mere opinion, to look at the grounds upon which opinions are formed, and to be guided in its own judgment by facts proved, and by acts done, rather than by the judgments of others, (e) * In Ex parte Holyland, (/) Lord Eldon observed, that in the case of the Attorney General v. Parnther, " Lord Thurlow said that where lunacy is once established by clear evidence, the party ought to be restored to as perfect a state of mind as he had before ; and that should be proved by evidence as clear and satisfactory. I cannot agree to that proposition, either as to property or with reference to such a case as this ; for suppose the strongest mind reduced by the delirium of a fever or any other cause, to a very inferior degree of capacity, admitting of making a will of personal estate (to which a boy of the age of fourteen is competent), the conclusion is not just that as that person is not what he had been he should not be allowed to make a will of personal estate." (/i) (e) By Sir John NichoU in Kindleside V. Harrison, 2 Phillim. 459. See, also, ex- pressions to the same effect by the same learned judge in Evans v. Knight, 1 Add. 239; Wood v. Wood, I Phillim. 363; Wheeler i'. Alderson, 3 Hagg. 605 ; and by Tindal C. J. in Tatham v. Wright, 2 Euss. & M. 21, 22 ; and by Lord Lang- dale in Steed v. Galley, I Keen, 620. (/) 11 Ves. II. (/I) [See Staples u. Wellington, 58 Maine, 453, 459, in which Appleton C. J. said : " If the delusion or the delirium is that caused by disease, it is obviously tem- porary in its character. It will continue only during the continuance of the fever in which it originated. If a fever is shown to exist at a given date, the law does not presume its continuance as in the case of fixed insanity. So there is no presump- tion of law as to the continuance of the temporary hallucination or delusion re- sulting from disease It is undoubt- edly true, that when an hallucination has become permanent, it is to be deemed in- sanity, general or particular, according to the nature of the delusion under which the patient labors." Jn Hix o. Whitte- more, 4 Met. 54 5, 546, Dewey J. in refer- ence to this subject remarks, that " a care- ful analysis of the principles, upon which presumptions are allowed to have force and effect, will show that the proof of the insanity of an individual at » particular period does not necessarily authorize the inference of his insanity at a remote sub- sequent period, or even several months later Neither observation nor ex- perience shows us that persons who are insane from the effect of some violent dis- ease, do not usually recover the right use of their mental faculties. Such cases are not unusual, and the return of a sound mind may be anticipated, from the subsid- ing or removal of the disease which has prostrated their minds. It is not, there- fore, to be stated as an unqualified maxim of the law, ' once insane, presumed to be always insane ; ' but reference must be had to the peculiar circumstances con- nected with the insanity of an individual, in deciding upon its effect upon the bur- den of proof, or how far it may authorize the jury to infer that the same condi- tion or state of mind attaches to the in- dividual at a later period. There must [23] 36 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. It must be observed that Sir W. Grant, in Hall v. Warren, (5-) does not appear to have understood Lord Thurlow in the same sense as Lord Eldon did in the preceding remarks, nor indeed does the re- port in Brown of the Attorney General v. Parnther bear any such construction. " If general lunacy," said Sir W- Grant, " is estab- lished, they will be under the necessity of showing, according to the Attorney General v. Parnther, that there was not merely a cessation of the violent symptoms of the disorder but a restoration of the faculties of the mind sufficient to enable the party soundly to judge of the act."((/i) In the case of Cartwright v. Cartwright, (K) it appeared that Proof of '^^^ testatrix was early in life afflicted with the disorder of her mind. She afterwards was supposed to be per- fectly recovered, and continued for several years to con- duct a house and establishment of her own as a rational person ; but her habit and condition of body, and her manner for several months before the date of her will, were those of a person afflicted with many of the worst symptoms of insan- lucid inter- val arising from the act of malt- ing a ra- tional will. be kept in view the distinction between the inferences to be drawn from proof of an habitual or apparently confirmed in- sanity, and that which may be only tem- porary. The existence of the former, once established, would require proof from the other party to show a restoration or recov- ery ; and in the absence of such evidence, insanity would be presumed to continue. But if the proof only shows a case of in- sanity directly connected with some vio- lent disease with which the individual is attacked, the party alleging the insanity must bring his proof of continued insan- ity to that point of time which bears di- rectly upon the subject in controversy, and not content himself merely with proof of insanity at an earlier period." See Swinburne Wills, pt. 2, s. 3; 1 Coll. Lu- nacy, 55 ; Shelf. Lunatics, 275 ; 1 Hale P. C. 30 ; Townshend v. Townshend, 7 Gill, 10. In Halley v. Webster, 21 Maine, 461, 463, Whitman C. J. said : " No posi- tion can be better established than that, if a testator, a short time before making his will, be proved to have been of un- sound mind, it throws the burden of proof upon those who come to support the will to show the restoration of his sanity. This must be understood to mean a general and fixed insanity ; and not a mere temporary delirium, such as takes place in a fit of intoxication. When a person is laboring under a typhus fever, which it would seem was the testator's disease, a suspension of the rational pow- ers is often superinduced, of many days' duration. And if the proof were, as the tendency of the testimony would seem to have been, that the testator had arrived to that ~stage in the fever wlien such suspension had, to a greater or less extent, taken place, so as to incapacitate him to make a will, those who would undertake to establish a will, thereafter made during his sickness, should be holden to prove, that he had, at the moment of making his will, recovered the use of his reason." Harrison i^. Rowan, 3 Wash. C. C. 586 ; McMasters v. Blair, 29 Penn. St. 298.] (g) 9 Ves. 611. (5I) [See Jenckes v. Probate Court, 2 R. I. 255 ; Boyd v. Eby, 8 Watts, 66.] (A) 1 Phillim. 90. CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — LUNATICS. 37 ity, and continued so after making the will. She was attended by Dr. Battie, who desired the nurse and other servants to pre- vent * her from reading and writing, as such occupation might dis- turb her head, and in consequence thereof she was for some time kept from the use of books and writing materials. However, some time prior to writing the will, she became very importunate for the use of pen and paper, and frequently asked for them in a very clamorous manner. Dr. Battie, in order to quiet and gratify her, consented that she should have them, telling her nurse and another servant that it did not signify what she might write, as she was not fit to make any proper use of them. As soon as Dr. Battie had given permission, pen, ink, and paper were carried to her, and her hands, which had, been for some time kept constantly tied, were let loose, and she sat down at her bureau and desired her nurse and servant to leave her alone while she wrote. They went into an adjoining room and watched her. At first she wrote upon several pieces of paper, and got up in a wild and furious manner and tore the papers and threw them into the fire one after another. After walking up and down the room many times in a wild and disordered manner, muttering to herself, she wrote the will. She inquired the day of the month, and an almanac was given to her by one of the nurses, and the day pointed out to her. She then called for a candle to seal the paper, which was given to and used by her for that purpose, although they used generally to be cautious not to trust her with a candle, and were forced to hold it at a distance from her if she read the newspaper. The survi- vor of the two witnesses to the transaction deposed that, in her opinion the testatrix had not then sufiicient capacity to be able to know what she did, and that during the time she was occupied in writing, which was upwards of an hour, she by her manner and gestures showed many signs of insanity. The will was written in a remarkably fair hand, and without a blot or mistake in a sin- gle word or letter : and it was a proper and natural will, and con- formable to what her affections were proved to be at the time, and her executors and trustees were very discreetly appointed. Two months after this writing of the will, in a conversation with * the mother of the parties benefited by the will, the testatrix men- tioned that she had made such a will, and ordered her servant to bring it, and she then delivered it to the mother, observing that [24] [25] 38 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. there was no need of witnesses as the estate was all personal, and the will in her own handwriting. Sir Wm. Wynne pronounced the will to be the legal will of the deceased, and further said, that in his apprehension the forming of the plan, and pursuing and carrying it into effect Avith propriety and without assistance, would have been sufficient to have established an interval of reason if there had been no other evidence ; but it was further affirmed, by the recognition and the delivery of the will. From this sentence an appeal was interposed to the high court of del- egates—who affirmed the judgment of Sir Wm. Wynne, (i) That very eminent judge, in the course of giving sentence below, after remiirking that the court did not depend on the opinions of the witnesses, but on the facts to which they deposed, (i^) deliv- ered the following observations : " The strongest and best proof that can arise as to a lucid in- terval is that which arises from the act itself of making the will. That I look upon as the thing to be first examined, and if it can be proved and established that it is a rational act rationally done, the whole case is proved. What can you do more to establish the act ? because, suppose you are able to show the party did that which appears to be a rational act, and it is his own act entirely, nothing is left to presumption in order to prove a lucid interval. Here is a rational act, rationally done. (A) In my apprehension, where you are able * completely to establish that, the law does not re- quire you to go farther ; and the citation from Swinburne states it to be so. The manner he has laid it down is (it is in the part in which he treats of what persons may make a will : (Q (i) 1 Pliillim. 122. tor. In Bannatyne v. Batinatyne, 2 Rob- (I'l) [I Greenl. Ev. § 440, and notes ; erts, 472, 50J, Dr. Lushington, referring Potts V. House, 6 Geo. 324; Baldwin o. to the above passage in the judgment of State, 12 Missou. 223; Cilley v. Cilley,34 Sir W. Wynne, said, "Though I cannot Maine, 162 ; Roberts v. Trawicl:, 13 Ala. say I altogether agree to that dictum, still 68.] it is entitled to great weight, and, to a (k) It is not, however, to be supposed certain extent, a rational act done in a that [he learned judge here considers that rational manner, though not, I think, ' the every rational act rationally done is suffi- strongest and best proof of a lucid inter- cient to prove a lucid interval. It is the val, does contribute to the establishment particular manner in which the act was of it." See, also, the ohservations of Sir done in tliis case which leads the judge to C. Cresswell, in Nichols v. Binns, 1 Sw. & the conclusion that there was a. lucid in- Tr. 239. terval. 2 Curt. 447, by Sir H. Jenncr (I) Swinb. pt. 2, s. 3, pi. 14. Fust, in Chambers v. The Queen's Proc- [26] CH. 1. § I.] OF THE CAPACITY TO MAKE A WILL LUNATICS. 39 ' The last observation is, If a lunatic person, or one tiiat is beside himself at sometimes, but not continually, make his testament, and it is not known whether the same were made while he was of sound mind and memory or no, then, in case the testament be so conceived as thereby no argument of frenzy or folly can be gathered, it is to be presumed that the same was made during the time of his clear and calm intermissions, and so the testament shall be adjudged good, yea, although it cannot be proved that the testator useth to have any clear and quiet intermissions at all, yet nevertheless I suppose, that if the testament be wisely and orderly framed, the same ought to be accepted for a lawful testament.' (Z') Unquestionably there must be a complete and ab- solute proof that the party who had so formed it did it without any assistance. If the fact be so, that he has done as .rational an act as can be without any assistance from another person, what there is more to be proved I don't know, unless the gentleman could prove by any authority or law what the length of the lucid interval is to be, whether an hour, a day, or a month. I know no such law as that ; all that is wanting is, that it should be of sufficient length to do the rational act intended. I look upon it, if you are able to establish the fact, that the act done is perfectly proper, and that the party who is alleged to have done it was free from the disorder at the time, that is completely sufficient." Accord- ingly, Sir John NichoU, in Scruby v. Fordham, (m) lays it down as a general rule, that where a will is traced into the hands of a testator, whose sanity is fairly impeached, but of whose sanity * or insanity at the time of doing or performing some act with relation to the will there is no direct evidence, the agent is to be inferred rational, or the contrary, from the character, broadly taken, of his act. (w) (P) [As to the effect to be given, as proof Grant, 2 Green Ch. 629, 635, 636 ; Stew of capacity, to the contents and character art v. Lispenard, 26 Wend. 313; Baker v. of the will'itself, and the manner in which Lewis, 4 Bawle, 356 ; "Weir's Will, 9 Dana, it was written and executed, see Couch v. 441 ; Howe v. Howe, 99 Mass. 90; Clark Couch, 7 Ala. 519 ; Duffield v. Morris, 2 Pisher, 1 Paige, 171 ; Peck ^. Gary, 27 Earring. 375 ; Van Alst v. Hunter, 5 N. T. 9.] John. Ch. 148 ; Boss v. Christman, 1 Ired. (m) 1 Add. 90. (Law) 209 ; Munday v. Taylor, 7 Bush, (») See, also, Chambers v. Queen's Proc- 491; Davis u. Calvert, 5 Gill & J. 269, tor, 2 Curt. 415,451, accord. See, also, 301- Tomkins u. Tomkins, 1 Bailey, 92; the address of Sir C. Cresswell to the Coleman v. Robertson, 17 Ala. 55; Rob- jury in NichoUs v. Binns, 1 Sw. & Tr. erts V. Trawick, 13 Ala. 68; Goble v. 239. [27] 40 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. In the case of M'Adam v. Walker, (o) Lord Chancellor Eldon mentioned that he had been concerned as counsel in a cause where a gentleman, who had been for some time insane, and who had been confined till the hour of his death in a madhouse, had made a will while so confined. The question was, whether he was of sound mind at the time of making this testament. It was a will of large contents, proportioning the different divisions with the most prudent and proper care, with a due regard to what he had previously done to the objects of his bounty, and in every respect pursuant to what he had declared, before his malady, he intended to have done. It was held, that he was of sound mind at the time. ^ In the cases above stated, the act was not only done and com- pleted by the testator himself, but the will was proper and natural. In another case, Clarke v. Lear, (^) where the instrument, al- though written with great accuracy by the testator himself, was made in favor of a person to whom he had no good cause whatever to give a benefit, it was held that the act of framing such an instrument furnished no proof of the existence of a lucid interval. That was the case of a man who had been certainly disordered in his mind for a length of time. He went to Little Hampton to bathe in the sea, and there he saw a young woman at the house where he boarded, of whom he had no prior knowledge, and wanted to marry her, at a time when he was insane ; and being brought to London in a straight waistcoat, he there wrote a paper, by way of codicil, giving her a legacy, (q) * With respect to the comparative facility of proving a lucid Distinction interval, there is a great distinction to be observed, with *f i'" d™"* respect to a case of delirium, set up in opposition to a tervalbe- will, as contradistinguished from fixed mental deranee- tweeniie- ° . . _,, ° lirium and ment, or permanent proper insanity. The reason for msamy. ^j^.^ .^ given with peculiar force and precision of lan- guage, by Sir John Nicholl, in Brogden v. Brown, (r) " In cases (o) 1 Dow, 178. torney General v. Parnther, 3 Bro. C. C. (p) March, 1791, cited in 1 Phillim. 119, 441 ; Coghlan v. Coghlan, cited in 1 Phil- by Sir Wm. Wynne. lim. 120 ; 'Williams v. Goude, 1 Hagg. (g) See, also, the observations of Sir J. 577 ; Borlase v. Borlase, 4 Notes of Cases, Nicholl, in Evans v. Knight, 1 Add. 237, 106 ; and Lord Brougham's observations 238 ; and for further cases as to the proof in Waring u. Waring, 6 Moore P. C. 351. of the existence of lucid intervals at the (r) 2 Add. 445. time of doing testamentary acts, see At- [28] CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — LUNATICS. 41 of permanent proper insanity, the proof of a lucid interval is matter of extreme difficulty, as the court has often had occasion to observe, and for this, among other reasons, namely, that the patient so affected is not unfrequently rational to all outw^ard appearance, vyithout any real abatement of his malady : so that, in truth and substance, he is just as insane, in his apparently rational, as he is in his visible raving fits. But the apparently rational intervals of persons merely delirious for the most part are really such. Delirium is a fluctuating state of mind, created by temporary excitement, in the absence of which, to be ascertained by the appearance of the patient, the patient is, most commonly, really sane. Hence, as also, indeed, from their greater presumed frequency in most instances in cases of delirium, the probabilities, d priori, in favor of a lucid interval are infinitely stronger in a cfase of delirium than in one of permanent proper insanity ; and the difficulty of proving a lucid interval is less, in the same exact proportion, in the former, than it is in the latter case, and has always been so held by this court, (s) The great case of Dew v. Clark, (i) which obtained the most complete and solemn consideration, led to a full inves- partial in- tigation of that which has often been called " partial vanity- insanity," * but vrhich would, perhaps, be better described by the phrase " insanity, or unsoundness, always existing, although only occasionally manifest." (w) There the case pleaded by an only daughter in a responsive allegation in the prerogative ^^^ ^ court, in opposition to her father's will, was, that besides Clark. laboring under mental perversion in some other particulars, espe- cially on religious subjects, the deceased had an insane aversion to his daughter, and was actuated solely by that illusion to dispose of his property in the manner in which it was purported to be conveyed by the contested will. This allegation was opposed as inadmissible, on behalf of residuary legatees named in the will. But Sir John Nicholl admitted it ; and after remarking that the case set up was one of partial insanity — of insanity quoad hoc, upon a particular subject, or rather, perhaps ^Mocec? hanc, as to a particular person, — (s) See, also, the observations of Dr. Dr. Haggard's Keport from the judge's Lushington in Dimes v. Dimes, 10 Moore notes. P. C. 422, 426 ; [Staples v. Wellington, (») Waring v. Waring, 6 Moore P. 58 Maine, 453, 459, 460; ante, 23, note C. 350, by Lord Brougham; [Potts ■;. , ^l> T House, 6 Geo. 324 ; Townshend v. Town- It) 1 Add. 279 ; 3 Add. 79. See, also, shend, 7 Gill, 10.] ^ ' [29] 42 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. and that the possible occurrence of such a case of partial insanity, and the consequent invalidity of a will, which is fairly presumable to have been made under its operation, must be admitted on the authority of Greenwood's case; (i') the learned judge proceeded to observe, with respect to the daughter, " She must be apprised, however, as well that the burden of proof rests with her, as that this burden, in my judgment, is from the very nature of the case, a pretty heavy * one. The present, indeed, may be less difficult to make out than Greenwood's case, in one respect, as the delu- sion under which the deceased is charged to have labored towards the complainant is alleged to have been coupled with something of insane feeling in other particulars, especially on the subject of religion ; although here, as in Greenwood's case, the general capacity is, in substance, unimpeached. But she must understand that no course of harsh treatment — no sudden bui-sts- of violence — no display of unkind, or even unnatural feeling, merely, can avail in proof of her allegation — she can only prove it by making out a case of antipathy, clearly resolvable into mental perversion, and plainly evincing that the deceased was insane as to her, not- withstanding his general sanity." (a;) After the evidence had been gone through on both sides, the same learned judge delivered his judgment : that the will being proved to be the direct unqual- ified offspring (jf) of a morbid delusion, as to the character and (ti) The following statement of this case 13 Ves. 89, and the summing up of Lord is to be found in Lord Brskine's speech on Kenyon in 3 Curt. Appendix, pp. i.-xKxi, the trial of Iladfield : " The deceased, Mr. [Although a testator may entertain pecul- Grecnvvood, whilst insane, took up an idea iar notions on certain subjects, and his that his brother had administered poison to will be unjust as to his surviving relatives, him, and this became the prominent feat- it may yet be held valid. Denson v. Beaz- ure of his insanity. In a few months, ley, 34 Texas, 191.] however, he recovered his senses, and re- (x) 1 Add. 284. See, also, Fulleck v. turned to his ])rofessior, which was that Allinson, 3 Hagg. 527 ; [Trumbull u. of a barrister, &c. but could never divest Gibbons, 2 Zabr. 117 ; Clapp v. FuUer- his mind of the morbid delusion that his ton, 34 N. Y. 190.] brother had attempted to poison him; un- {y) It must, however, be observed, that der the influence of which (so said) he dis- the rule of law is that, in civil suits, it is inherited him. On a trial in the court of not necessary to trace or connect the raor- king'a bench upon an issue devisavit vel bid Imagination with the act itself. If the non, the jury found against the will; but mind is unsound, the act is void. The a contrary verdict was had in the court of law avoids every act of the lunatic during common picas, and the suit ended in a theperiodof the lunaci/, aitbouglitha net to compromise." See, also. Sir John NichoU's be avoided cannot be connected with the in- statement of Greenwood's case, 3 Add. 96, fluence of the insanity, and may be proper 97, and Lord Eldon's in White v. Wilson, in itself. Groom v. Thomas, 2 Ha"g. 436. [30] CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — LUNATICS. 43 conduct of the daughter, being the very creature of that morbid delusion put into act and energy, the deceased must be considered insane at the time of making the will, and consequently that the will itself was null and void in law. («) In the coui'se of his judgment the learned judge made the following remarks, on the subject of partial insanity : " It was said that ' partial what is insanity' was unknown to the law. The observation '"T'l^-^' pRl ClQl HI" could only have arisen from mistaking the sense in which sanity- the court used that term. It was not meant that a person could be partially insane and sane at the same * moment of time : to be sane, the mind must be perfectly sound ; otherwise it is unsound. All that was meant was, that the delusion may exist only on one or more particular subjects. (2^) In that sense, the very same term is used by no less an authority than Lord Hale, who says, ' There is a partial insanity of mind and a total insanity. The former is either in respect to things quoad hoc vel illud insanire. Some persons, that have a competent use of reason in respect of some subjects, are yet under a particular dementia in respect of some particular discourses, subjects, or applications. Or else it is partial in respect of degrees ; and this is the condition of very manj"-, especially melancholy persons, who, for the most part, discover their defect in excessive fears and griefs, and yet are not wholly destitute of the use of reason ; and this partial insanity seems not to excuse them in the committing of any offence for its matter capital ; for doubtless most persons that are felons of themselves, and others, are under a degree of partial insanity when they commit these offences. It is very difficult to define the invisible (z) 3 Add. 208. This judgment was required, see MuUins v. Cottrell, 41 Miss. afterwards confirmed by the court of 291. Eccentric habits, or a belief in witch- delegates. A commission of review was craft and a supernatural agency, are not then applied for before the lord chancel- sufficient evidence ofinsanity to invalidate lor, bat refused. See 5 Russ. 163 ; [Bit- a will. Lee w. Lee, 4 McCord, 183; Leech ner v. Bitner, 65 Penn. St. 347 ; Seamen's v. Leech, 21 Penn. St. 67, 69, 72; Dun- Friend Society v. Hopper, 33 N. Y. 619; ham's Appeal, 27 Conn. 192; Eobinson Denson v. Beazley, 34 Texas, 191. Partial . Kyner, 65 Penn. St. 368, 378; Koe V. Taylor, 45 HI. 485. So, in Board- man V. Woodman, 47 N. H. 120, it was decided that although the testator may have been under a delusion on one or more subjects, yet, if the will made by him, and its provisions, were not in any way the offspring or result of the delusion, and were not connected with or influenced by it, then the testator may be regarded as in law of sane mind for the purpose of making a will, and the will as valid. Sar- gent J. said : This is " in accordance with the great weight of authority, ancient and modern, Bnglish and American, medical and legal The only opposing de- cision would seem to be Waring v. War- ing, 6 Moore P. C. 349, but this has never been recognized as authority either in England or in this country." But see as to the recognition of the authority of Waring v. Waring, the case of Smith w_ Tebbitt, L. E. 1 P. & D. 398. See Den- son V. Beazley, 34 Texas, 191. The doc- trine of Banks v. Goodfellow, supra, seems to have been cited with approbation in State V. Jones, 50 N. H. 396, 397, and it is there suggested that the opinion of the court in Boardman v. Woodman, supra, does not conflict with that doctrine. See Bell C. J. in Concord u. Eumney, 45 N. H. 423, 427, 428 ; Converse v. Con- verse, 21 Vt. 168; Pidcock v. Potter, 68 Penn. St. 342. In Harrison u. Eowan, 3 Wash. C. C. 585, the law was thus laid down by the presiding judge : " As to the testator's capacity, he must, in the lan- guage of the law, have a sound and dis- posing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the ob- jects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and com- prehend its provisions in their legal form. It is snflScient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its sim- ple forms. In deciding upon the capac- ity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inad- equate to the management of other busi- ness, as, for instance, to make contracts for the purchase or sale of property. For most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their inten- tions committed to writing, they find nmch less difficulty in declaring their intentions than they would in comprehending busi- ness in some measure new." In the case of Den V. Vancleve, 2 South. 660, the law was thus stated : " By the terms, ' a sound and disposing mind and memory,' it has not been understood that a testator must pos- sess these qualities of the mind in the 48 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. II. Criterion -^orAs in which they have been reported, (i) " The first ofinsanity. poi^t for consideration, and which should be distinctly- highest degree; otherwise, very few could make testaments at all ; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disa- ble most men in the decline of life. The mind may have been in some degree debil- itated ; the memory may have become in some degree enfeebled ; and yet there may be enough left clearly to discern and dis- creetly to judge of all those things and all those circumstances, which enter into the nature of a rational, fair, and just testa- ment. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of a sound and disposing mind and memory." In the subsequent case of Stevens v. Vancleve, 4 Wash. C. C. 267, it is said : " The tes- tator mnst, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory ; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect ■ it may be greatly impaired by age or dis- ease ; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had been before asked and answered, and yet his understanding may be snfBciently sound for many of the ordinary transac- tions oflife. He may not have sufficient strength of memory and vigor of intellect to make and to digest all the parts of a con- tract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a dis- position in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator, as this, Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it, and the objects of his bounty 1 To sum up the whole in the most simple and intel- ligible form, Were his mind and memory sufBciently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will 1 " This view of the law is fiilly adopted by the court in Sloan v. Maxwell, 2 Green (N. J.) Gh. 563, and is there stated to have been approved by Chancellor Troom in a case as to the will of Tace Wallace, which, however, is not reported. It appears to have had the sanction of Chancellor Kent, in Van Alst v. Hunter, 5 John. Ch. 159., In the case of Banks v. Goodfellow, L. R. 5 Q. B. 569, it is signifi- cantly asked by Cockburn C. J. why the standard of capacity applied in the above cases to impaired mental power should not also be applicable to menial unsound- ness produced by mental disease? See Boyd V. Eby, 8 Watts, 70 ; Shropshire v. Eeno, 5 J. J. Marsh. 91 ; McTaggart v. Thompson, 14 Penn. St. 149; Brown v. Torrcy, 24 Barb. 583 ; Delafield u. Parish, 25 N. Y. 9, 22 ; Den v. Johnson, 2 South. 454. On the other hand, however, when the will appears to have been the direct result of partial insanity under which the testator was laboring, it should be re- garded as invalid, though his general ca- pacity be unimpeached. Denson v. Beaz- ley, 34 Texas, 191 ; Trumbull v. Gibbons, 2 Zabr. (N. J.) 117 ; Bitner v. Bitner, 65 Penn. St. 347. The fact that a testator entertains a notion which leads him to dis- inherit for slight and insufficient reasons does not prove a want of testamentary capacity, if the notion is not insane. Clapp i>. Fullerton, 34 N. Y. 190; Hall v. Hall, 38 Ala. 131 ; Trumbull v. Gibbons, 2 Zabr. (N. J.) U7 ; Boardman v. Wood- man, 47 N. H. 138, 139.] See, further, on this subject. Smith u. Tebbitt, L. U. l P. {d) Dr. Haggard's Report, from the judge's notes, pp. 5-10. CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — LUNATICS. 49 ascertained, as far as it can be fixed, is, what is the test and cri- terion of unsound mind, and where eccentricity or caprice ends, and derangement commences. Derangement assumes a thousand different shapes as various as the shades of human character. It shows itself in forms very dissimilar both in character and in degree. It exists in all imaginable varieties, from the frantic maniac chained down to the floor, to the person apparently rational on all subjects and in all transactions save one ; and whose dis- order, though latently perverting the mind, yet will not be called forth except under particular circumstances, and will show itself only occasionally. We have heard of persons at large in Bedlam, acting as servants in the institution, showing other maniacs and describing their cases, yet being themselves essentially mad. We have heard of the person who fancied himself Duke of Hexham, yet acted as agent and steward to his own committee. It is further observable, that persons under disorder of mind have yet the power of * restriction from respect and awe. Both towards their keepers and towards others in different relations they will control themselves. There have been instances of extraordinary cunning in this respect, so much as even to deceive the medical and other attendants, by persons who, on effecting their purpose, have immediately shown that their disorder existed undiminished. " It has probably happened to most persons who have made a considerable advance in life, to have had personal opportunities of seeing some of these varieties, and these intermediate cases be- tween eccentricity and absolute frenzy, — maniacs who, though they could talk rationally, and conduct themselves correctly, and reason rightly, nay, with force and ability, on ordinary subjects, yet on others were in a complete state of delusion, — which delu- sion no arguments or proofs could remove. In common parlance, it is true, some say a person is mad when he does any strange or absurd act, others do not conceive the term ' madness ' to be prop- erly applied unless the person is frantic. " As far as my own observations and experience can direct me, aided by opinions and statements I have heard expressed j^-^^^^^^ ^^ in society, guided also by what has occurred in these and presence of *'''' •' I'lii 1 delusion in other courts of justice, or has been laid down by med- the true ical and legal writers, the true criterion is, where there & D. 398 ; Banks v. Goodfellow, L. E. 5 (e) See Wheeler v. Alderson, 3 Hagg. Q B. 549. 598, ace. But see, also, the observations VOL. I. 4 [34] '50 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. I. BK. U. is delusion of mind there is insanity ; that is, when persons be- lieve things to exist which exist only, or at least in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can convince them, they are of unsound mind ; (e^) or, as one of the counsel accurately expressed it, 'It is only the belief of facts which no rational person would have believed that is insane delusion.' (/) This delusion may sometimes exist on one * or two particular subjects, though gener- ally there are other concomitant circumstances — such as eccen- tricity, irritability, violence, suspicion, exaggeration, inconsistency, and other marks and symptoms which may tend to confirm the existence of delusion and to establish its insane character. (/^) " Medical writers have laid down the same criterion by which insanity may be known. Dr. Battle, in his celebrated Treatise on Madness, (^) thus expresses it. After stating what is not properly madness, though often accompanying it, namely, either too lively or too languid a perception of things, he proceeds : " ' But qui species alias veris capiet oommotus hahebitur ; and this by all mankind, as well as the physician ; no one ever doubt- ing whether the perception of objects not really existing, or not really corresponding to the senses, be a certain sign of madness : therefore " deluded imagination " is not only an indisputable but an essential character of madness.' (K) " Deluded imagination, then, is insanity. " Mr. Locke, who practised for a short time as a physician, of Sir H. Jenner Pust in Chambers v. The ties, which exist only in the imagination Queeu'sPi-octor, 2 Curt. 448,449; [Board- of the patient. "The frame or state of man t). Woodman, 47 N. H. 120,136-139, mind," said his lordship, "which indi- and cases cited ; State v. Jones, 50 N. H. cates his incapacity to struggle against 369, 395 ; Banks u. Goodfellow, L. R. 5 such an erroneous belief constitutes an Q. B. 549.] ' unsound frame of mind.'" See, further, (el) [See Seamen's Priend Society v. as to the different kinds of insane delusion, Hopper, 33 N. Y. 619.] the judgment of Dr. Lushington, in Priu- (/) This passage was cited with ap- sep v. Dyce Sombre, 10 Moore P. C. 232, probation by Sir H. Jenner Fust in Frere 247 ; S. C. Dea. & Sw. 22 ; [Seamen's V. Peacocke, 1 Robert. 444. But Lord Friend Society v. Hopper, 33 N. Y. 619, Brougham remarked, in "Waring v. War- 620-637 ; Duffield v. Morris, 2 Harring. ing, 6 Moore P. C. 353, that perhaps, in 375; Robinson v. Adams, 62 Maine, 391.] a strictly logical view, the definition is (/i) [See Bitner w. Bitner, 65 Peun. St. liable to one exception, or at least ex- 347 ; Boyd v. Eby, 8 Watts, 66 ; M'Mas- posed to one criticism, viz, that it gives a ters v. Blair, 30 Fenn. St. 298, 302.] consequence for a definition, and that it (g) London, 1758. might be more strictly accurate to term (A) S. 1, p. 5. " delusion " and belief of things as reali- [35] CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — LUNATICS. 51 though more distinguished as a philosopher, thus expresses him- self in his highly esteemed work on the Human Understanding : 'Madmen having joined together some ideas very wrongly, mis- take them for truths. By the violence of their imaginations, hav- ing taken their fancies for realities, they make right deductions from them.' Hence it comes to pass, that a man who is of a right understanding in all other * things, may, in one particular, be as frantic as any in Bedlam. 'Madmen put wrong ideas together, and so make wrong propositions, but argue and reason right from them.' (i) " Here, again, the putting wrong ideas together, mistaking them for truths, and mistaking fancies for realities, is Mr. Locke's defi- nition of madness ; and he states that insane persons will reason rightly at times, and yet still are essentially mad ; and that they may be mad on one particular subject only. " I shall only refer to one other medical authority ; but he is a person of great name as connected with mental disorder — I mean Dr. Francis Willis. In a recent publication by this gentleman, there occur passages not undeserving of my attention. The work is entitled A Treatise on Mental Derangement, being the sub- stance of the Gulstonian Lecture delivered before the College of Physicians in the year 1822, and published in the month of March, 1823. Preceding his work, he gives a list of authors whom he has consulted, and he seems to have referred to almost every writer on the subject, ancient and modern. He also has personally had great practice in the particular disorder, as well as the advantage of acquiring much knowledge from the distinguished experience of his family. I will refer to a passage where he points out the dif- ference between an unsound mind and a weak mind. " ' A sound mind is one wholly free from delusion. Weak minds, again, only difEer from strong ones in the extent and power of their faculties ; but unless they betray symptoms of delusion, their soundness cannot be questioned. An unsound mind, on the contrary, is marked by delusion, by an apparent insensibility to, or perversion of, those feelings which are peculiarly characteristic of our nature. Some lunatics, for instance, are callous to a just sense of affection, decency, or honor ; (i^) they hate those with- out a cause who were formerly * most dear to them : others take (t) Locke on the Human Understand- {fl) [Bitner v. Bitner, 65 Penn. St. ing, bk. 2, c. 11, ». 13. 347.] [36] [37] 52 OF THE CAPACITY TO MAKE A WILL — LUNATICS. [PT. L BK. IL delight in cruelty ; many are more or less offended at not receiv- ing that attention to which their delusions persuade them they are entitled, (f) Retention of memory, display of talents, enjoyment in amusing games, and an appearance of rationality, on various subjects, are not inconsistent with unsoundness of mind : hence, sometimes, arises the difficulty of distinguishing between sanity and insanity.' " (Je) Although in the case of a person who is sometimes sane, and Case of sometimes insane, if there is no direct proof of his state "sTunding when he wrote his will, and there be in it a mixture of to folly." wisdom and folly, it is to be presumed that the same was made during the testator's frenzy, even if there be but one word " sounding to folly ; " (J) yet the court of probate will not at once reject an allegation propounding a will, which even strongly " sounds to folly," when facts are pleaded, showing that the de- ceased up to his death conducted himself in the ordinary concerns of life as a sane man. (m) In a case where a woman made a will, under a power authoriz- A will may ing her to dispose of certain property by a will attested noun"ced by two witnesses, the will was pronounced for, though (t'*) [See Trumbull v. Gibbons, 2 Zabr. opinion its provisions are unjust and in- 117; Bitner v. Bitner, 65 Penn. St. 347 ; judicious, but they may be considered by Boyd V. Eby, 8 Watts, 66.] the jury in determining the capacity of (k) See the judgment of Sir H. Jenner the testator. Higgins o. Carlton, 28 Md. Fust, in Mudway t). Croft, 3 Curt. 671, as 118; Munday v. Taylor, 7 Bush (Ky.), to the criteria by which to test and ascer- 491. It is not sufScient to avoid a will, tain whether natural or innate eccentric- that its dispositions are imprudent and un- ity has exceeded the bounds of legal testa- accountable. Higgins u. Carlton, su/)ra; raentary capacity. See, also, Austen v. Ross v. Christman, 1 Ired. 209 ; Davis v. Graham, 8 Moore P. C. 493. Calvert, 5 Gill & J. 269, 300 ; Green- (l) Swinb. pt. 2, s. 3, pi. 15. See In the wood v. Greenwood, 3 Curt. Appdx. i. ; Goods of Watts, 1 Curt. 594. Roberts v. Trawick, 13 Ala. 68 ; Ken- (m) Arbery v. Ashe, 1 Hagg. 214. worthy w. Williams, 5 Ind. 375 ; Adding- [ Where the testamentary capacity required ton v. Wilson, 5 Ind. 137; Denson v. is that the testator " shall be of sound and Beazley, 34 Texas, 191 ; Reynolds u.Koot, disposing mind, and capable of making a 62 Barb. 250 ; Lynch v. Clements, 9 C. valid deed or contract," it is understood E. Green, 431 ; Boylan v. Meeker, 4 that he must have sufficient capacity, at Dutcher (N. J.), 274 ; Harrel v. Barrel, 1 the time of executing his will, to make a Duvall (Ky.), 203; Barker w. Comins, 110 disposition of his estate with judgment Mass. 477 ; Munday v. Taylor, 7 Bush, and understanding in reference to the 491 ; ante, 26, and note (/') ; Peck v. amount and situation of his property, Gary, 27 N. Y. 9 ; Potts v. House, 6 Geo. and the relative claims of the different 324. But the will may, upon its face, persons who should be the objects of his present undoubted proof of its being the bounty. But under this rule a jury is not product of an unsound mind. Boylan f bound to reject a will because in their Meeker, 4 Butcher (N. J.), 274.] CH. I. § I. J OF THE CAPACITY TO MAKE A WILL — LUNATICS. 53 both the witnesses deposed to the deceased's incapac- for, though . , , . -"^ both the ltj\n) attesting The presumption of law is, that a verdict of a jury depose to under a commission of kmacy, that the party, the subject tor's^lnta- of the commission, is of unsound mind, is well founded, P'"=''y- and if the commission remained unsuperseded, that the Effect of party continued a lunatic to his death. Such presump- sionTf lu- tion, however, may be rebutted and displaced by positive '^^'^J'' proof of entire recovery or possession of a lucid interval when a testamentary instrument was executed, (o) *By the Roman law testaments might be set aside as being inoffieiosa, deficient in natural duty, if they totally passed inofBcious by (without assigning a true and sufficient reason) any meifts. of the children of the testator ; though if the child had any legacy, however small, it was a proof the testator had not lost his memory or his reason, which otherwise the law presumed. But the law of England mates no such constrained suppositions of forgetfulness or insanity ; and therefore, though the heir or next of kin be totally omitted, it admits no querela mofficiosa to set aside such testament, (p) The court of probate, however, will require evidence of full and entire capacity in the testator to support a will which is not an " officious " one, i. e. consonant with the testator's natural affection and moral duties ; (g) and (re) Le Breton v. Fletcher, 2 Hagg. 558 ; proof. I Greenl. Et. § 690 ; Hamilton v. S. P. in K. B. Lowe v. JolliiFe, 1 W. Bl. Hamilton, 10 E. I. 538, 542 ; Stone .-. 365. See Starnes v. Marten, 1 Curt. 294 ; Damon, 12 Mass. 488 ; Crowninshield o. posf, § n. ; [Otterson w. Hofford, 7 Vroom, Crowninshield, 2 Gray, 531; Breed v. 129 ; In re Will of Eliza Ware, 25 N. Y. Pratt, 18 Pick. 115 ; Lucas v. Parsons, 27 425; Higgins v. Carlton, 28 Md. 118; Geo. 593; In re Burr, 2 Barb. Ch. 208. Perkins o. Perkins, 39 N. H. 168,169; Such a person may make a valid will, if Bell V. Clark, 9 Ired. 279 ; Whitaker v. he is in fact of sound mind at the time of Salisbury, 15 Pick. 544; Jauncey v. its execution. Breed v. Pratt, 18 Pick. Thome, 2 Barb. Ch. 40, 52, .53; Auburn 115; Stone v. Damon, 12 Mass. 488; Theological Seminary v. Calhoun, 25 N. Groom v. Groom, 2 Hagg. 449 ; Shelford Y. 428 ; Orser v. Orser, 24 N. Y. 51 ; Lunacy, 296 ; Hall v. Warren, 9 Ves. Isham J. in Dean v. Dean, 27 Vt. 746 ; 605 ; Ee Watts, 1 Curt. 594 ; Snook v. Bowman v. Christman, 4 Wend. 277 ; Nel- Watts, 11 Beav. 105 ; Cooke v. Cholmon- son V. McGiffert, 3 Barb. Ch. 158.] dely, 2 Mac. & G. 22; Bannatyne v. Ban- (o) Prinsep v. Dyce Sombre, 10 Moore natyne, 16 Jur. 864.] P. C. 232, 239, 244, 245 ; [In re Taylor, 1 (p) 2 Bl. Com. 503 ; Wrench v. Mur- Edm. (N. Y.) Sel. Cas. 375. The fact, ray, 3 Curt. 623. that a person is under guardianship as a (?) Montefiore v. Montefiore, 2 Add. lunatic, is prima facie evidence of incapac- 361, 362. And see Dew v. Clark, 3 Add. itv, but it is open to explanation by other 207, 208. [38] 54 OF THK CAPACITY TO MAKE A WILL — OLD AGE. [PT. I. BK. II. where the capacity is at all doubtful, and the will " inofficious," it has been said that there must be direct proof of instructions, (r) But the modern doctrine requires only that there should be satis- factory proof of some kind of the testator's knowledge and ap- proval of the contents of the will, (s.) Besides the two classes of persons non compotes mentis (s^) already mentioned, viz, idiots and lunatics, Lord Coke mentions two more classes, viz, those who were of good and sound memory, and by the visitation of God have lost it ; and those who have become non compotes by their own act, as drunkards.' (t) In the former of these two latter classes must be reckoned, those who, from sickness, grief, accident, or old age, have lost their reason, who are not like those classed by Lord Coke as " lunatici," sometimes having their understanding and sometimes not ; but whose understandings are defunct ; who have survived the period that Providence has as- signed to the stability of their minds, (m) * But old age alone does not deprive a man of the capacity of making a testament ; (a;) for a man may freely make his testament Persons who from old age or other causes have out- lived their under- standing. (r) Brogden v. Brown, 2 Add. 449. (s) See post, pt. i. bk. iv. ch. iii. § 5. [See Goble v. Grant, 2 Green Ch. 629.] (ji) [As to the meaning of this term, see the remarks of Appleton C. J. in Horey v. Chase, 52 Maine, 314-317 ; Stewart v. Lis- penard, 26 Wend. 2.55.] (() 4 Co. 124 6. 142 ; Lewis v. Pead, 1 Ves. jun. 19 ; [Be Woodfall, 1 Pa. Leg. Gaz. Rep. 66 ; Rey- nolds V. Root, 62 Barb. 250; Shailer v. Bumstead, 99 Mass. 112; Potts v. House, 6 Geo. 324 ; Kirkwood a. Gordon, 7 Rich. (S. Car.) 474 ; Browne v. MoUiston, 3 Whart. 129 ; Sloan ». Maxwell, 2 Green Ch. 581 ; Whitenach v. Stryker, 1 Green («) Ex parte Cranmer, 12 Ves. 452, by Ch. 8, 12; Creely v. Ostrander, 3 Bradf. Lord Erskine ; Sherwood v. Sanderson, 19 Ves. 283. See, also, Ridgway v. Darwin, 8 Ves. 66. [The term non compos mentis implies a total want of mind ; and a person to whom it properly applies cannot make a valid will, however just and reasonable it may appear to be. Potts v. House, 6 Geo. 324. But neither age, nor sickness, nor extreme distress, nor debility of body, will Sur. 107 ; Carroll v. Norton, 3 Bradf. Sur. 291. In Collins v. Townley, 21 N. J. Ch. , 353, the will was sustained, where the tes- tatrix was ninety-eight years old. In Lowe V. Williamson, 1 Green Ch. 82, a will was sustained, although the testator was eighty years of age, very deaf, and his eyesight was defective when he made his will. In Reed's Will, 2 B. Mon. 79, the testator disqualify a person for making a will, if was eighty years of age, and was afflicted sufficient intelligence remain. Higgins v. Carlton, 28 Md. 115 ; Van Alst v. Hunter, 5 John. Ch. 148, 158; Crolius v. Stark, 64 Barb. 112; Wood v. Wood, 4 Brewst. (Pa.) 75.] {x) Swinb. pt. 2, 8. 5, pi. 1; Godolph. pt. 1, c. 8, s. 4 ; Bird v. Bird, 2 Hagg. [39] with the palsy so that he could neither read nor feed himself, and his will was held valid. See, also, Watson v. Watson, 2 B. Mon. 74 ; Andress v. Weller, 2 Green Ch. 605 ; Stevens v. Vancleve, 4 Wash. C. C. 262 ; Nailing v. Nailing, 2 Sneed (Tenn.), 630 ; Moore v. Moore, 2 Bradf. CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — OLD AGE. 55 how old soever he be ; since it is not the integrity of the body, but of the mind, that is requisite in testaments. (a;i) Yet if a man in his old age becomes a very child again in his understanding, or rather in the want thereof, or by reason of extreme old age, or other infirmity, is become so forgetful, that he knows not his own name, he is then no more fit to make his testament than a natural fool, or a child, or lunatic person, (y) Sur. 261 ; Higgins v. Carlton, 28 Md. 115 ; Secrest v. Edwards, 4 Met. (Ky.) 163 ; Elliott's Will, 2 J. J. Marsh. 340. In the case of Barrel v. Harrel, 1 Duvall (Ky.), 203, it appeared that the testator was, at the time of making his will, about seventy years of age, was confined to his bed by an inflammatory disease, which appeared very distressing, and made him frequently both "drowsy" and "flighty,'' and of which he died about two days after the attesta- tion ; and there was also evidence that for several years his second wife, who was not the mother of his children, had often im- portuned him to make such a will as the one propounded, grossly unequal and with no satisfactory reason for its provisions, and the testator had constantly resisted her, declaring that the law made the fair- est disposition of the estates of persons deceased, and he would die intestate. The court refused to uphold the will.] Ex- treme old age raises some doubt of capac- ity, but only so far as to excite the vigil- ance of the court. Kindleside v. Harrison, 2 Phillim. 461, 492. And in cases where no insanity has either existed or been sup- posed to exist, the inquiry as to capacity simply is, whether the mental faculties re- tain sufficient strength- fully to compre- hend the testamentary act about to be done. But when lunacy or unsoundness of mind has previously existed, the inves- tigation is of a totally difierent character. Per Dr. Lushington, in Prinsep v. Dyce Sombre, 10 Moore P. C. 278 ; Banks v. Goodfellow, L. K. 5 Q. B. 549 ; [Higgins v. Carlton, 28 Md. 115. In Van Alst v. Hun- ter, 5 John. Ch. 148, 158, the testator was between ninety and a hundred years of age when he made his will. Chancellor Kent remarked : " The law looks only to the competency of the understanding.'' " The failure of memory is not sufficient to create the incapacity, unless it be quite total, or extends to the testator's immediate family or property." " The want of recollection of names is one of the earliest symptoms of a decay of memory; but this failure may exist to a very great degree, and yet the solid power of understanding remain." As a fortunate circumstance attending this power of the aged to dispose of their prop- erty, the learned chancellor added: "It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the at- tentions due to his infirmities. The will of such an aged man ouglit to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated."] (a:!) [See Higgins v. Carlton, 28 Md. 115 ; Van Alst v. Hunter, 5 John. Ch. 148, 158.] (y) Swinb. M supra; Godolph. uU su- pra. See, also, Griffiths v. Robins, 3 Madd. 191 ; Mackenzie v. Handaside, 2 Hagg. 211. [The testator in a, will and codicil was eighty years of age ; neither of the subscribing witnesses, who were the same to each instrument, testified to the mental capacity of the testator at the time when the instruments were executed; and one of them expressed an opinion that the tes- tator was not of sound mind at the time of the execution of either paper, the first being executed in April and the second in 56 OF THE CAPACITY TO MAKE A WILL — IMBECILITY. [PT. I. BK. H. If no suspicion of fraud exists, a will, consistent with previous Will made affections and declarations, and supported by recognitions mis. and circumstances snowing volition and capacity, is valid, though made in extremis, and though the instructions were con- veyed through the party benefited, (a) "It is not necessary," observed Lord Chief Baron Eyre, in "Weakness Mountain V. Bennett, (a) " to go so far as to make a of under- . ' v x o standing, man absolutely insane, so as to be an object for a com- mission of lunacy, in order to determine the question, whether he was of a sound and disposing mind, memory, and understand- ing. A man, perhaps, may not be insane, and yet not equal to the important act of disposing of his property by will." (a^) So it was agreed by the judges in Combe's case, (J) that * sane memory for the making a will is not at all times when the party can June following. It appeared that in the succeeding autumn tjje testator failed to know and to recognize his children, and inquired how many he had, and could only name some of them. The surrogate refused to admit the instrument to pro- bate, and his decision was affirmed. Du- mond V. Kiif, 7 Lansing, 465.] (z) Boss V. Chester, 1 Hagg. 227 ; Mar- tin V. Wotton, 1 Cas. temp. Lee, 130. [In Downey v. Murphey, 1 Dev. & Bat. 82, where this subject was carefully discussed, it was held that a will written for a tes- tator in extremis, by one standing in a confidential relation to him, and who took a benefit under it, was not invalid by a conclusion of law unless read over to the testator or its contents otherwise made known to him. But these facts must be left to the jury, and from them fraud may be inferred unless repelled by proof of bona Jides. See Crispell v. Dubois, 4 Barb. 393 ; Seamen's Friend Society t. Hopper, 33 N. T. 619 ; Harvey v. SuUens, 46 Missou. 147. Where there is an entire revolution in the character and conduct and testa- mentary intention of a person of weak mind, while in the care of those benefited by the change, and under circumstances of suspicion, the law requires strong proof of both volition and capacity. Lucas v. Parsons, 27 Geo. 593 ; Walker v. Hunter, [40] 17 Geo. 364. So, where the person pro- curing or writing the will derives an un- equal advantage under it. Harvey v. Sul- lens, 46 Missou. 147. And if, in such case, the will is unjust towards the relatives of the testatrix, and would not have been ex- ecuted but for the influence of the party principally benefited by it, the jury may properly be instructed that it cannot be supported. Harvey v. SuUens, 46 Missou. 147.] (a) 1 Cox, 356. (a?-) [Mental imbecility arising from ad- vanced age, or produced permanently or temporarily by excessive drinking, or any other cause, may destroy testamentary power. 1 Jarman Wills (3d Eng. ed.), 29 ; Forman v. Smith, 7 Lansing, 443. In Foot V. Stanton, 1 Deane, 19, the will of a person subject to epileptic fits was ad- mitted to probate, although there was no evidence that the testatrix knew its con- tents, the memory of the attesting wit- nesses failed, and a third person declared that she was unfit to make a will. See Banks v. Goodfellow, L. R. 5 Q. B. 549, 552 ; Reynolds v. Root, 62 Barb. 250 ; McTaggart v. Thompson, 14 Penn. St. 149 ; Rambler v. Tryon, 7 Serg. & R. 94 ; Leech v. Leech, 21 Penn. St. 67, 69, 72.] (b) Moor, 759 ; Vin. Abr. tit. Devise, A. 22 ; 4 Burn E. L. 49. CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — IMBECILITY. 57 speak " yea or no," or had life in him, nor when he can answer to anything with sense ; but he ought to have judgment to discern, and to be of perfect memory. And it is said by Lord Coke, in the Marquis of Winchester's case, (c) that it is not sufBcient that the testator be of memory when he makes his will to answer familiar and usual questions, but he ought to have a disposing memory so as to be able to make a disposition of his property with understanding and reason ; and that is such a memory which the law calls sane and perfect memory, (c?) So it is laid down by Erskine J. in delivering the opinion of the judicial commit- tee of the privy council, in Harwood v. Baker, (e) that in order to constitute a sound disposing mind the testator must not only be able to understand that he is by his will giving the whole of his property to the objects of his regard, but must also have ca- pacity to comprehend the extent of his property and the nature of the claims of others whom, by his will, he is excluding from participation in that property. (/) (c) 6 Co. 23 a; 4 Burn E. L. 49. {d) See, further, Herbert v. Lowns, 1 Ch. Rep. 24; Dyer, 27 a, in raarg. ; Eight V. Price, 1 Dougl. 241 ; Ball v. Mannin, 3 Bligh N. S. 1 ; S. C. 1 Dow & CI. 380; M'Diarmid d. M'Diarmid, 3 Bligh N. S. 374 ; [Delafield v. Parish, 25 N. Y. 9, 22 ; Den V. Johnson, 2 South. 454 ; Boyd v. Eby, 8 Watts, 71 ; Clark «. Pisher, 1 Paige, 171; Shropshire v. Eeno, 5 J. ,1. Marsh. 91.] See, also, the judgment of Sir John NichoU, in Marsh v. Tyrrell, 2 Hagg. 1 22, as to the rules by which the compe- tency of the mind must be judged ; and see, further, the judgment of the same learned judge in Ingram !>. Wyatt, 1 Hagg. 401, where some valuable remarks on the subject of imbecility of mind will be found. [In re Welsh, 1 Redf. Sur. 238.] Por an instance where weakness of mind and for- getfulness will not constitute incapacity, see Constable v. Tufuell, 4 Hagg. 465 ; affirmed on appeal, 3 Knapp, 122. (e) 3 Moore P. C. C. 282, 290. (/) See, also, Sefton v. Hopwood, 1 Post. & P. 578 ; Swinfen v. Swinfen, 1 Post. & P. 584 ; [ante, 33, note (c) ; Bates v. Bates, 27 Iowa, 110; Porman v. Smith, 7 Lan- sing, 443 ; Converse v. Converse, 21 Vt. 168 ; Stancell v. Kenan, 33 Geo. 56 ; Beau- bien v. Cicotte, 12 Mich. 459; Aikin v. Weckerly, 19 Mich. 482 ; Bundy v. Mc- Knight, 48 Ind. 502 ; Delaiield v. Parish, 25 N. Y. 9 ; Kinne v. Johnson, 60 Barb. 69 ; Reynolds v. Root, 62 Barb. 250, 252 ; Harper v. Harper, 1 N. Y. Sup. Ct. 351, 354 ; Parish v. Parish, 42 Barb. 274 ; Hig- gins V. Carlton, 28 Md. 118; Tringley v. Cowhill, 48 Missou. 291 ; Roe v. Taylor, 45 111. 485 ; Home v. Home, 9 Ired. 99 ; Wood V. Wood, 4 Brewst. (Pa.) 75 ; Hor- bach V. Denniston, 3 Pittsb. (Pa.) 49 ; Sut- ton V. Sadler, 3 C. B. N. S. 87, 102, 103 ; Harrison v. Rowan, 3 Wash. C. C. 585; Den V. Vancleve, 2 South. 660; Stevens u. Vancleve, 4 Wash. C. C. 267 ; Tawney v. Long (Penn.), 2 Central Law Journ. 531. The question is, whether the testator had the ability to comprehend, in a reasonable manner, the nature of the affair in which he participated. Lozear v. Shields, 8 C. B. Green (N. J.), 509 ; Harrison v. Rowan, 3 Wash. C. C. 585 ; Hovey v. Chase, 52 Maine, 304 ; Crolius v. Stark, 7 Lan- sing, 311. Testamentary capacity means a sound disposing mind, viz, a power of understanding the nature of the property and the effect of the will. Sefton v. Hop- 58 OF THE CAPACITY TO MAKE A WILL — IMBECILITY. [PT. I. BK. II. On the other hand it must be observed, that mere weakness of understanding is no objection to a man's disposing of his estate, by will; for courts cannot measure the size of people's under- standings and capacities, nor examine into the wisdom or pru- dence of men in disposing of their estates, (g} * " If a man," says wood, 1 Fost. & F. 578 ; Bates v. Bates, 27 Iowa, 110. In St. Leger's Appeal, 34 Conn. 434, 448, 449, it was held to be a correct direction to the jnry, that a tes- tator " had sufficient capacity to make a will if he understood the business in which he was engaged, and the elements of it, namely, if he recollected and understood, or, in other words, comprehended, the nature and condition of his property, the persons who were or should be the natu- ral objects of his bounty, and his relations to them, the manner in which he wished to distribute it among or withhold it from them, and the scope and bearing of the provisions of the will he was making." " We are not aware," Butler J. remarked, " that any better or safer and more just guide for the jury has been or can be adopted." See Kinne v. Kinne, 9 Conn. 102 ; Comstock v. Hadlyme, 8 Conn. 254. In order that the testator shall be able to comprehend and appreciate the claims to which he ought to give effect, it is essen- tial that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natu- ral faculties ; that no insane delusion shall influence his will in disposing of his prop- erty and bring about a disposal of it which, if the mind had been sound, would not have been made. Cockburn C. J. in Banks v. Goodfellow, L. E. 5 Q. B. 549, 565. See the very important and valuable observa- tions on this suloect in the judgment of the court, in Smith v. Tebbitt, L. E. 1 P. & D. 398, 400.] {g) Osmond v. Fitzroy, 3 P. Wms. 129 ; [Duffield V. Morris, 2 Harring. 379; El- liott's Will, 2 J. J. Marsh. 340 ; Dorrick V. Eeichenback, 10 Serg. & E. 84; New- house V. Godwin, 17 Barb. 236 ; Bundy V. McKnight, 48 lud. 502. See the re- marks of Appleton C. J. in Hovey v. Chase, [41] 52 Maine, 304, 314, 315 ; Clark v. Fisher, 1 Paige, 171 ; Patterson v. Patterson, 6 Serg. & E. 56; Tomkins v. Tomkins, 1 Bailey, 92 ; Jamison v. Jamison, 3 Hous- ton (Del.), 108. The remarks of Mr. Jus- tice Washington, upon this point, in Ste- vens V. Vaucleve, 4 Wash. C. C. 262, are worthy of consideration. "He (the tes- tator) must have memory. A man in whom this faculty is wholly extinguished cannot be said to possess an understand- ing to any degree whatever, or for any purpose. But his memory may be very imperfect ; it may be greatly impaired by age or disease ; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; he may at times ask idle questions, and repeat those which had before been asked and answered; and yet his understanding be sufiSciently sound for many of the ordinary transactions of life. He may not have suf- ficient strength of memory and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will." See Comstock v. Hadlyme, 8 Conn. 264 ; Rambler t,. Tryon, 7 Serg. & E. 95 ; Kinne v. Kinne, 9 Conn. 105 ; Converse V. Converse, 21 Vt. 168 ; Kirkwood v. Gor- don, 7 Rich. (S. Car.) 474; Davis v. Cal- vert, 5 Gill & J. 269, 299, 300; Coleman V. Robertson, 17 Ala. 84; Minor v. Thomas, 12 B. Mon. 106. " This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testa- tor, as this : Had he a disposing mem- ory ■? Was he capable of recollecting the property he was about to bequeath, the CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — DRUNKENNESS. 59 Swinburne, (A) " be of a mean understanding (neither of the wise sort nor the foolish), but indifferent as it were, betwixt a wise man and a fool, yea, though he rather incline to the foolish sort, so that for his dull capacity he might worthily be termed grosmm caput, a dull pate, or a dunce, such a one is not prohibited from making his testament." (i) As to the last of the classes of non compotes mentioned by Lord Coke : " He that is overcome by drink," says Swin- ^^^.^^^^^ burne, (Jc) " during the time of his drunkenness is com- drunk. pared to a madman, (V) and therefore, if he make his testament at that time, it is void in law, (P) which is to be understood, when he is so excessively drunk that he is utterly deprived of the use of reason and understanding ; otherwise, albeit his understanding is obscured, and his memory troubled, yet he may make his testa- ment, being in that case." (m) In a case where it appeared that manner of distributing it, and the objects of his bounty ■? To sum up the whole in its most simple and intelligible form, were his mind and memory suiSciently sound to enable him to know and understand the business in which he was engaged, at the time when he executed his will ? " 4 Wash. C. C. 262. See Converse v. Con- verse, 21 Vt. 168; Hornew. Home, 9 Ired. 99 ; per Lord Kenyon, addressing the jury in Greenwood v. Greenwood, 3 Curt. App. ii. ; Thompson v. Kyner, 65 Penn. St. 368; Bitner v. Bitner, 65 Penn. St. 347 ; Bundy v. McKnight, 48 Ind. 502 ; Morris v. Stokes, 21 Geo. 552. The stand- ard of testamentary capacity laid down by Mr. Justice Washington, in the above case of Stevens v. Vancleve, and in Harrison v. Rowan, 3 Wash. C. C. 385, 386, has fre- quently been referred to with approval in other cases. See Lowe v. Williamson, 1 Green Ch. 82, 85 ; Sloan v. Maxwell, 2 Green Ch. 563 ; Andreas v. Weller, 2 Green Ch. 604 ; Hall v. Hall, 18 Geo. 40 ; Kinne V. Kinne, 9 Conn. 105 ; Comstock v. Had- lyme, 8 Conn. 265 ; Verplank, Senator, in Stewart v. Lispenard, 26 Wend, 255, 306, 311, 312 ; Brown i'. Torrey, 24 Barb. 583 ; McMasters u. Blair, 29 Penn. St. 298 ; Converse v. Converse, 21 "Vt. 168; Tom- kins u. Tomkins, 1 Bailey, 93 ; Kachline <;. Clark, 4 Whart. 319, 320; Strong J. in Newhouse v. Godwin, 17 Barb. 236 ; Moore V. Moore, 2 Bradf. Sur. 261 ; Cordrey V. Cordrey, 1 Houston (Del.), 269; Duf- field V. Morris, 2 Harring. 379 ; Sutton a. Sutton, 5 Harring. 461 ; Morris v. Stokes, 21 Geo. 552 ; Crolius v. Stark, 64 Barb. 112; S. C. 7 Lansing, 311.] (h) Pt. 2, s. 4, pi. 3. (i) See, also, Harrod v. Harrod, 1 Kay & J. 4 ; [Potts V. House, 6 Geo. 324, 336.] (h) Pt. 2, s. 6. (I) See Gore v. Gibson, 13 M. & W. 623. (V-) [Duffield V. Morris, 2 Harring. 375, 383; Barrett v. Buxton, 2 Aiken, 167; Peck V. Carey, 27 N. Y. 9 ; S. C. 38 Barb. 77 ; Julke v. Adam, 1 Kedf. Sur. 454.] (m) See, also, Godolph. pt. 1, c. 8, s. 5 ; [Gardner v. Gardner, 22 Wend. 526; Brush V. Holland, 1 Bradf. Sur. 461; Barrett v. Buxton, 2 Aiken, 167 ; Peck V. Gary, 27 N. Y. 9 ; McSorley v. McSor- ley, 2 Bradf. Sur. 188; Lowe v. Wil- liamson, 1 Green Ch. 85, 87, 88 ; Burritt V. Silliman, 16 Barb. 198; Whitenach w. Stryker, 1 Green Ch. 12 ; Gibson v. Gib- son, 24 Missou. 227 ; Starrett v. Douglass, 2 Yeates, 48. The burden is on the party alleging the invalidity of the will in con- 60 OF THE CAPACITY TO MAKE A WILL — DRUNKENNESS. [PT. L BK. II. the testator was a person not properly insane or deranged, but Habitual habitually addicted to the use of spirituous liquors, under ness. the actual excitement of which he talked and acted in most respects like a madman, it was held that as the testator was not under the excitement of liquor, he was not to be considered as insane at the time of making his will ; and the will itself was accordingly established : (n) and the court pointed out the difiEer- ence between the present case and one of actual insanity; inas- much as insanity may often be latent, whereas there can scarcely be such a thing as latent ebriety; and consequently, in a case like the one under consideration, all which requires to be shown is, the absence of the excitement at the time of the act done, or at least the * absence of excitement in any such degree as would vitiate the act done, (o) If a will be executed by a testator of sound mind at the time of A will de- execution, and be afterwards wholly or partially defaced thrtestetor ^^ ^i^tn, while of unsound mind, such will is to be pro- while non nounced for as it existed in its integral state, that being compos. . . ascertainable, (p) Accordingly, where a testatrix hav- ing duly executed her will, subsequently became insane, and shortly before her death it was discovered that the will had been sequence of the intoxication of the testsi- is destroyed and gone by reason of habit- tor, to show its existence at the time of ual intoxication, he can make no valid executing the will. Andress v. Weller, 2 will. Starrett v. Douglass, 2 Yeates, 48 ; Green Ch. 604, 608.] The following au- Temple v. Temple, 1 Hen. & Munf. 476 ; thorities on the subject of deeds obtained Duffield v. Morris, supra ; Gardner v. from a party under intoxication may be Gardner, 22 Wend. 526. As to persons applicable in principle. Cooke v. Clay- found habitual drunkards, by inquest, worth, 18 Ves. 12; Butler v. Mulvihill, 1 Leckey v. Cunningham, 56 Penn. St. 370; Bligh, 137 ; Say v. Barwick, 1 Ves. & B. Lewis v. Jones, 50 Barb. 645.] 185 ; Pitt V. Smith, 3 Campb. 33 ; M'Di- (o) 2 Add. 210. See, also, Wheeler u. armid w. M'Diarmid, 3 Bligh N. S. 374; Alderson, 3 Hagg. 602, 608; [Starrett a. Gore V. Gibson, 13 M. & W. 623. Douglass, 2 Yeates, 48 ; Black v. Ellis, 3 (n) Ayrey v. Hill, 2 Add. 206. See, Hill (S. Car.), 68.] In the case of Eex v. also, Billinghurst v. Vickers, 1 Phlllim. Wright, 2 Burr. 1099, a rule was obtained 191 ; Handley v. Stacey, 1 Fost. & F. 574. to show cause why a criminal information [The mere facts, that the testator was ad- could not be exhibited against certain dieted to drinking, and had had an attack persons for a misdemeanor in using ar- of delirium tremens a few days before ex- tifices in order to obtain a will from a ecuting the will, are immaterial, if he was woman addicted to, and almost destroyed able to understand it at the time of ex- by, liquor. ecuting it. Handley «. Stacey, supra ; Duf- (p) Scruby w. Fordham, 1 Add. 74; In field o. Morris, 2 Harrlng. 375, 383, 384. the Goods of Brand, 3 Hagg. 754 ; [Bat- But where the understanding of a party ton v. Watson, 13 Geo. 63.] [42] CH. I. § I.] OF THE CAPACITY TO MAKE A WILL — PART VALID. 61 mutilated by her, but it was proved to have been in her custody for a short time subsequent as well as prior to her in- sanity ; it was held by Sir C. Cresswell that the onus of showing showing her to have been of sound mind when she mu- the'timeof tilated it was on the party alleging the revocation. (^) "^'''''*''™- Part of a will may be established, and part held not entitled to a probate, if actual incapacity be shown at the time of p . j the execution of the latter part, (r) So where a will was ^'" «stab- executed on the 21st of January, containing a just and part not, on proper distribution of the testator's property, and on the of^ncapao^ 24th, only three days after, a codicil thereto was signed ''■^" and executed, the effect of which w(^uld have been to leave the eldest son nearly destitute ; the will was held valid, and probate refused to the codicil, on the ground that the deceased was not in possession of a sound and disposing memory at the time of making the latter, (s) * It will hereafter appear, (i) that with respect to a will made before January 1, 1838 (and on which, therefore, the insanity statute 1 Vict. c. 26, s. 9, does not operate), mere in|^be-^°' instructions for a will, if reduced into writing before i^gtruc*^ the death of the testator, may operate as a will. And ''9,'?^ ^°\,^ , '' , , will and its it has been held, that a will executed in conformity to execution. instructions may be established, though the testator became in- capable before the will was read over to him. (m) So in the case of Garnet v. Sellars, (w) the only questions were whether the de- ceased was in his senses when he gave instructions for his will, and whether the will was reduced into writing before he was dead ; and the court being satisfied on those two points, pronounced for the will, without inquiring whether he remained in his senses dur- ing the time the will was writing. So a will of personalty only, agreeable to long entertained opinions, prepared two months be- fore, and execution merely delayed for want of witnesses, would be valid, it should seem, as an unexecuted paper, even though the execution finally took place during supervening insanity, (a;) (q) Harris v. BerraB, 1 Sw. & Tr. 153. (s) Brounker v. Brounker, 2 Phillim. 57. (r) Billinghurst y. Vickers, I Phillim. («) Infra, 10, 71. 187 ; Wood o. Wood, lb. 357. See, also, («) Moore v. Hacket, 2 Cas. temp. Lee, Trimlestown v. D'Alton, 1 Dow (New 147. Series), 85; Haddock u. Trotman, I Post. (v) Cited by Sir G. Lee, 1 Cas. temp. & F. 31 ; [Morris v. Stokes, 21 Geo. 552; Lee, 186. post. 45, 48.] (x) FuUeck v. Allinson, 3 Hagg. 527. [43] 62 OF THE CAPACITY TO MAKE A WILL. [PT. L BK.-U. Again, it lias been held not necessary that a testator should be in his senses at the time alterations are made in his will, provided he was so when he directed the alterations. («/) With respect, how- ever, to wills made on or after January 1, 1838, since the stat. 1 Vict. c. 26, requires that their execution or alteration shall be at- tended with certain formalities, it is obvious that no will can be made or altered, unless the testator be of sound mind at the time when he complies with them. Letters It was decided by the house of lords in the great testatS-not case of Doe dem. Tatham v. Wright, (z) that letters evidence of -^yritten to the testator, and not acted upon, or indorsed, his sanity. . J or answered by him, are not evidence of his sanity. * SECTION n. Persons incapable from Want of Liberty or Free-will. Such persons as are intestable for want of liberty or freedom of will are, by the civil law, of various kinds, as prisoners, captives, and the like, (a) But the law of England does not make such persons absolutely intestable, but only leaves it to the discretion of the court to judge upon the consideration of their particular circumstances of duress, whether or no such persons could be sup- posed to have liherum animum testandi. (5) If it can be demonstrated that actual force was used to com- wm ob- pel the testator to make the will, there can be no doubt tained by . force : that although all formalities have been complied with, and the party perfectly in his senses, yet such a will can never stand, (c) So, if there were, at the time of bequeathing, a fear upon the by fear: testator, it could not be, as it ought, libera voluntas, (d) Yet it must be understood, that " it is not every fear, or a vain fear, that will have the effect of annulling the will ; but a just fear, that is, such as that indeed without it the testator had (y) Seeman v. Seeman, 1 Cas. temp. (6) 2 Bl. Com. 497. Lee, 180. (c) Mountain v. Bennet, 1 Cox, 355, by (z) 4 Bing. N. C. 489 ; [Wright v. Eyre C. B. Tatham, 5 CI. & Fin. 670.] See Eosc. (d) Godolph. pt. 3, c. 25, s. 8 ; Swinb. Evid. 453, 5th ed. pt. 7, s. 2, pi. 1. (a) Swinb. pt. 2, s. 8; Godolph. pt. 1, c. 9. [44] CH. I. § II. j FEAE — FRAUD. 63 not made his testament at all, at least not in that manner, (e) A Tain fear is not enough to make a testament void ; but it must be such a fear as the law intends, when it expresses it by a fear that may cadere in constantem virum : (/) as the fear of death, or of bodily hurt, or of imprisonment, or of loss of all or most part of one's goods, or the like : (^) whereof no certain rule can be de- livered, (^1) but it is left to the discretion of the judge, who ought not only to consider the quality of the threatenings, but also the persons as well threatening as threatened ; in the * person threaten- ing, his power and disposition ; in the person threatened, the sex, age, courage, pusillanimity, and the like."(A) Fraud is no less detestable in law than open force. Where- fore, when the testator is circumvented by fraud, the , , , by fraud : testament is of no more force than if he were constrained by fear, (i) With regard to what deceit shall annul a testament on the ground of fraud, as in the case of a will made under fear, it is left to the discretion of the judge, comparing the deceit to the capacity or understanding of the person deceived to discern whether it be such as may overthrow the testament or not. (Jc) If a part of a will has been obtained by fraud, probate, it should seem, ought to be refused as to that part, and granted as to the rest. (Z) (e) Godolph. pt. 3, c. 25, s. 8. (/) Godolph. pt. 3, c. 25, s. 8 ; Swinb. pt. 7, s. 2, pi. 7. ig) Swinb. pt. 7, s. 2, pi. 7. (ji) [Small V. Small, 4 Greenl. 222.] (h) Swinb. pt. 7, s. 2, pi. 7. See Nel- son V. Oldfield, 2 Vern. 76. (i) Swinb. pt. 7, s. 3, pi. 1 ; [Davis v. Calvert, 5 Gill & J. 269; Harvey v. Sul- lens, 46 Missou. 147 ; Clark v. Fisher, 1 Paige, 171 ; Forman v. Smith, 7 Lansing, 443; EoUwagen v. EoUwagen, 5 N. T. Sup. Ct. 402 ; Delafield v. Parish, 25 N. Y. 9, 35, 36; Tyler v. Gardiner, 35 N. Y. 559, 592, 593 ; Nexsen v. Nexsen, 2 Keyes, 229, 233; Lee V. Dill, 11 Abb. Pr. 214; Marvin v. Marvin, 5 N. Y. Sup. Ct. 429, note.] Eraud and imposition upon weak- ness is a sufficient ground to set aside a will of real, much more of personal estate, though such weakness is not sufficient to ground a commission of lunacy. By Lord Hardwicke, in Lord Donegal's case, 2 Ves. sen. 408. {h) Swinb. pt. 7, a. 3, pi. 3. See, also, the cases cited by Lord Lyndhurst, in Allen V. McPherson, 1 H. L. Cas. 207, 208, of wills obtained by false representations- [Howell V. Troutman, 8 Jones Law (N. Car.), 304 ; Eollwagen v. EoUwagen, 5 N. Y. Sup. Ct. 402 ; Kelly v. Theules, 2 Ir. Ch. 510 ; Gaines v. Chew, 2 How. U. S. 619, 645.] (I) Allen V. McPherson, 1 H. L. Cas. 191. Trimlestown v. D' Alton, 1 Dow N. S. stated, post, 48 ; [Morris v. Stokes, 21 Geo. 552 ; In re Welsh, 1 Eedf. Sur. 238 ; Plorey v. Tlorey, 24 Ala. 241 ; Hip- pesley v. Homer, T. & E. 48, note ; Lord Guillamore v. O'Grady, 2 J. & L. 210 ; Haddock v. Trotman, 1 Post. & F. 31 ; ante, 42. In Bent's Appeal, 35 Conn. 523, it was held that a decree of the court of pro- bate approving a will containing void be- [45] 64 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. It is now settled that a will, whether of personal or real pi;operty, cannot be set aside in equity (Z^) on the ground that the will was obtained by fraud and imposition, because a will of per- sonal estate may be annulled for fraud in the court of probate, and a will of real estate may be set aside at law ; (P^ for in such cases, as the animus testandi is wanting, it cannot be considered as a will, (m) quests, is not erroneous tecause it is gen- tertaining bills on questions of probate is, eral and does not limit its approval to the that .the probate 'courts themselves have valid bequests. S. C. 38 Conn. 26, 34. all the powers and machinery necessary to Nor are the void bequests rendered valid give full and adequate relief." See Be- by the decree approving the will, though noist v. Murrin, 48 Missou. 48.] (P) [In re Broderick'.'! Will, 21 Wallace, 503 ; Townsend v. Townsend, 4 Coldw. (Tenn.) 70; Gaines v. Chew, 2 How. U. S. 619.] (m) Bennet v. Vade, 2 Atk. 324 ; Anon. 3 Atk. 17 ; Kenrick v. Bransby, 3 Bro. P. C. 358; S. C. 8 Vin. Abr. 168, tit. De- vise, Z. 2, pi. 11; S. C. nomine Herridge V. Bransby, 2 Cas. temp. Lee, 563 ; Webb V. Claverden, 2 Atk. 424 ; Jones v. Jones, 3 Meriv. 161 ; S. C. 7 Price, 663 ; Jones V. Prost, Jacob, 466 ; S. C. 3 Madd. 1 ; Gingell v. Home, 9 Sim. 539 ; Allen u. M'Pherson, 1 H. L. Cas. 191. [See Vicery V. Hobbs, 21 Texas, 570 ; Meluish v. Milton, L. R. 3 Ch. D. 27.] In some earlier cases we find the court of chan- cery distinctly asserting its jurisdiction to relieve against fraud in obtaining wills, as in Mannday v. Maunday, 1 Ch. Rep. 123 ; Welby V. Thornagh, Prec. Chanc. 123; Goss V. Tracy, 1 P. Wms. 287 ; S. C. 2 Vern. 700 ; in other cases, disclaiming such jurisdiction, though the fraud was gross and palpable; as in Roberts v. Wynu, 1 Ch. Rep. 236; S. C. nomine Bodmin v. Roberts, cited by Powell B. 3 Ch. Cas. 61 ; Archer v. Mosse, 2 Vern. 8; and in other cases, steering a middle course, by declaring the party who prac- tised the fraud a trustee for the party prej- udiced by it; Herbert v. Lowns, 1 Ch. Rep. 22 ; Thynu v. Thynn, 1 Vern. 296 ; Devenish v. Bains, Prec. Ch. 3 ; Barnesly V. Powel, 1 Ves. sen. 287 ; Harriot v. not appealed from. Bent's Appeal, 35 Conn. 523. If a will may take effect in any part, although indefinite in others, it may properly be approved. George v. George, 47 N. H. 27, 46.] (/I) [In reBroderick's Will, 21 Wallace, 509, Bradley J. said, " Whatever may have been the original ground of this rule [that a court of equity win not entertain juris- diction of a bill to set aside a will or the probate thereof], the most satisfactory ground for its continued prevalence is, that the constitution of a succession to a de- ceased person's estate partakes, in some degree, of the nature of a proceeding in rem, in which all persons in the world who have any interest are deemed parties, and are concluded as upon res adjudicata by the decision of the court having jurisdic- tion. The public interest requires that the estates of persons deceased, being de- prived of a master, and subject to all man- ner of claims, should at once devolve to a new and competent ownership ; and, con- sequently, that there should be some con- venient jurisdiction and mode of proceed- ing by which this devolution may be effected with least chance of injustice and fraud ; and that the result attained should be firm and perpetual. The courts in- vested with this jurisdiction should have ample powers both of process and investi- gation, and sufficient opportunity should be given to check and revise proceedings tainted with mistake, fraud, or illegality, And one of the principal reasons Harriot, Stra. 666 ; 1 Ponbl. Treat. Eq. b. assigned by the equity courts for not en- 1, c. 2, s. 3, note (u) ; [Dowd v. Tucker, 14 CH. I. § n.] IMPORTUNITY INFLUENCE. 65 * If a man (said Rolle C. J. at a trial at bar) makes a will in his sickness, by the over-importunity of his wife, to the by impor- end he may be quiet, this shall be said to be a will made '"°''y= by constraint, and shall not be a good will. («) Importunity, in its correct legal acceptation, must be in such a degree as to take away from the testator free agency ; it must be sucli importunity as he is too weak to resist ; such as will render the act no longer the act of the deceased, — not the free act of a capable testator, — in order to invalidate the instru- ment, (o) A will made by interrogatories is valid ; but undoubtedly when a will is so made, the court must be more on its guard against im- portunity, more jealous of capacity, and more strict in requiring proof of spontaneity and volition than it would be in an ordinary case, (ja) With respect to a will obtained by influence, it is not unlawful for a man, by honest intercession and persuasion, to pro- ^ j^g^, cure a will in favor of himself or another person : (g) ™<=^- Am. Law Reg. N. S. 477, and cases in note ad Jinem; post, 552, note (s) ; Wil- liams «. Fitch, 18 N. Y. 547.] This doc- trine will be discussed, post, pt. i. bk. vi. ch. I. together with the subject of the jurisdic- tion of the court of chancery to relieve in cases where probate has been obtained by fraud on the next of kin. (n) Hacker v. Newborn, Styles, 427; [Taylor v. Wilburn, 20 Missou. 306 ; Mar- shall V. Flinn, 4 Jones (Law), 199 ; Davis V. Calvert, 5 Gill & J. 301, 302; Miller v. Miller, 3 Serg. & R. 267; Lowe u. Wil- liamson, 1 Green Ch. 82 ; Potts u. House, 6 Geo. 324; Clark v. Fisher, 1 Paige, 171 ; Harrel v. Harrel, 1 Duvall (Ky.), 203; Small V. Small, 4 Greenl. 220; Lide v. Lide, 2 Brevard, 403.] See, also. Money- penny V. Brown, 8 Vin. Abr. 167, tit. Devise, Z. 2, pi. 7 ; Lamkin v. Babb, 1 Cas. temp. Lee, 1. See, also, Harwood o. Baker, 3 Moore P. C. 282. (o) By Sir John NichoU, in Kindleside II. Harrison, 2 Phillim. 551, 552; [Baldwin V. Parker, 99 Mass. 84, 85 ; Davis v. Cal- vert, 5 Gill & J. 269 ; Clark v. Fisher, 1 Paige, 171.] VOL. I. 6 (p) Green v. Skipworth, 1 Phillim. 58. (q) Swinb. pt. 2, s. 4, pi. 1 ; [Howe v. Howe, 99 Mass. 88, 99 ; Higgins v. Carl- ton, 28 Md. 118; Robb v. Graham, 48 Ind. 1 ; Hazard v. Hazard, 5 N. Y. Sup. Ct. 79 ; Clapp v. FuUerton, 34 N. Y. 197 ; Dean v. Negley, 41 Penn. St. 312, Tyler V. Gardiner, 5 N. Y. Sup. Ct. 79, 81 ; 35 N. Y. 559; O'Neall v. Farr, 1 Rich. (S. Car.) 80 ; Walker v. Hunter, 17 Geo. 264; Newhouse v. Godwin, 17 Barb. 236 ; Har- rison's Will, 1 B. Mon. 351 ; McDaniel u. Crosby, 19 Ark. 533.] It is no part of the testamentary law of this country, that the making a will must originate with a tes- tator; [Jones V. Jones, 14 B. Mon. 464 ;] nor is it required that proof should be given of the commencement of such a transaction, provided it be proved that the deceased completely understood, adopted, and sanctioned the disposition proposed to him, and that the instrument itself em- bodied such disposition. By Sir J. Nich- oU, in Constable ;;. Tufnell, 4 Hagg. 477 ; affirmed on appeal, 3 Knapp, 122. See, also. Wise t. Johnson, 1 Cas. temp. Lee, 600. [46] 66 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. * neither is it to induce the testator, by fair and flattering speeches ; (r) for though persuasion may be employed to influence the dispositions in a will, this does not amount to influence in the legal sense ; (r^) and -whether or not a capricious partiality has (r) Swinb. pt. 7, s. 4, pi. I ; [Potts v. House, 6 Geo. 324; Small v. Small, 4 Greenl. 220 ; Woodwaid v. James, 3 Strobh. Law, 552. If, however, such fair and flattering speeches were addressed to a mind that has lost its self-direction, and become reduced to unresisting imbecility, they would render void the will obtained by them. See Martin v. Teague, 2 Spears, 268, 269; O'Neall v. Farr, 1 Rich. (S. Car.) 80; Lowe v. Williamson, 1 Green Ch, 82; Trumbull v. Gibbons, 2 Zabr. 117; Thompson v. Farr, 1 Spears, 93; Newhouse i;. Godwin, 17 Barb. 236. See the difference noted between the effects of influence exerted by the wife of the testa- tor and that exercised by a woman hold- ing merely an adulterous relation to him. Kessinger y. Kessinger, 37 Ind. 341 ; Dean t!. Negley, 41 Penn. St. 312 ; Monroe v. Barclay, 17 Ohio St. 302 ; Farr v. Thomp- son, Cheves, 37 ; Denton v. Franklin, 9 B. Mon. 28 ; Nussear v, Arnold, 13 Serg. & E. 323; Monroe v. Barclay, 17 Ohio St. 302.] (ji) [Miller v. Miller, 3 Serg. & E. 267 ; Small V. Small, 4 Greenl. 220; Chandler V. Ferris, 1 Barring. 454; Denslow v. Moore, 2 Day, 12 ; Stackhouse v. Horton, 15 N. J. Ch. 202 ; Gardner v. Gardner, 22 Wend. 526 ; Trumbull v. Gibbons, 2 Zabr. (N. J.) 117 ; Martin v. Teague, 2 Spears, 268, 269 ; Eobinson v. Adams, 62 Maine, 369. Neither advice, nor argument, nor honest and moderate intercession or per- suasion, or flattery unaccompanied by fraud or deceit, would vitiate a will made freely and from conviction, though such will might not have been made but for such influences. Chandler v. Ferris, 1 Harring. 454, 464; Davis v. Calvert, 5 Gill & J. 301 ; Miller v. Miller, 3 Serg. & E. 267 ; Small r. Small, i Greenl. 220 ; Denslow v. Moore, 2 Day, 12. There may, however, be overruling importunity [47] and undue influence without fraud, which, when proved, may, and ought to have, effect (under circumstances) to avoid a will or testament ; Brown v. Moore, 6 Yerger, 272 ; such as the immoderate, persevering, and begging importuniiics of a wife who will take no denial, pressed upon an old and feeble man, which can be better imafjincd than described ; or do- minion obtained over the testator under the Influence of fear, produced by threats, violence, or ill treatment. In nciiher of those instances may there be any direct fraud; but an overruling influence upon the mind and feelings of a testator accord- ing to the degree of his judgment and firmness. Buchanan C. J. in Davis v. Cal- vert, 5 Gill & J. 301, 302. Some of the cases have held that the influencr, to avoid a will, must have been consciously exer- cised, with a view to produce the unlaw- ful result. Martin v. Teague, 2 Spears, 268 ; Small v. Small, 4 Greenl. 220. Great indulgence has generally been allowed to the influence or importunity of a wife, child, or other intimate relation or friend, if exerted in a fair and reasonable man- ner, and without imposition or deception, and while the testator wns in a condition, and had capacity to deliberate and esti- mate the inducements ottered, although the influence or importunity were success- ful in securing a will more favorable to such party than would otherwise have been obtained. Small «. Small, 4 Greenl. 220 ; Miller v. Miller, 3 Serg. & K. 267 ; Elliott's Will, 2 J. J. Marsh. 340 ; Moritz <,-. Brough, 16 Serg. & R. 403; Harrison's Will, 1 B. Mon. 351 ; O'Neall v. Farr, 1 Rich. (S. Car.) 80 ; Thompson v. Farr, 1 Spears, 93 ; Farr v. Thompson, Cheves, 37; Lide v. Lide, 2 Brevard, 403; Zim- merman V. Zimmerman, 23 Penn. St. 375; Wier v. Fitigerald, 2 Bradf. Sur. 42.1 CH. I. § II.] IMPORTUNITY INFLUENCE. 67 been shown, the court will not inquire, (r^') But where persua- sion is used to a testator on his death-bed, when even a word distracts him, it may amount to force and inspiring fear, (s) The sort of influence which will invalidate a will is thus de- scribed by Eyre C. B, in Mountain, v. Bennett : (f) " There is another ground, which though not so distinct as that of actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will ; that is, if a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind.' Q}') [In this case, the will was attempted to be invalidated on the ground that it was obtained by the undue influence of the testa- tor's wife, whom he had married from an inferior station ; but the will was finally supported, amidst much conflicting testimony as to the state of the testator's mind, principally on the evidence of the attesting witnesses, who were persons of high character and respectability, and were unanimous as to the testator's sanity and freedom from control. (^^)] But the influence to vitiate an act must amount to force and coercion, destroying free agency. (tP) It must not be the influence of affection and attachment ; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act ; further, there must be (r2) [See Eosa v. Christman, 1 Ired. ((') [Marshall v. Flinn, 4 Jones (N. (Law) 209.] Car.), 199; O'Neall v. Farr, 1 Rich. (S. (s) By SirWm. Wynne, in Dickinson Car.) 80-84.] u. Moss, Prcrog. T. 1790, MS., 4 Burn, (fi) [1 Jarman Wills (3d Eng. ed.J, 58 ; Tyrwliitt's ed. ; Higginson v. Colcot, 30.] 1 Cas. temp. Lee, 138 ; [Potts v. House, 6 (L^) [Thomas v. Kyner, 65 Penn. 368 ; Geo.324; Harrelu. Harrel, iDuvall, 203; Lynch v. Clements, 24 N. J. Eq. 431; Morris v. Stokes, 21 Geo. 552; Davis v. Turner v. Checsraan, 2 McCartcr (N. J.), Calvert, 5 Gill & J. 301,302. And where 243, 265; Trumbull v. Gibbons, 2 Zabv. the lawful influence is purposely carried (N.J.) 117; In re Will of Jaekman, 26 so far as to procure an unjust will, it can- Wise. 104 ; Tyson v. Tyson, 37 Md. 567 ; not be supported. Taylor v. Wilburn, 20 O'Neall v. Farr, 1 Rich. (S. Car.) 80-84; Missou. 306 ; Marshall v. Flinn, 4 Jones Morris v. Stokes, 21 Geo. 552; Dufficld «. (Law), 199 ; Martin v. Teague, 2 Spears, Morris, 2 Harring. 375 ; Dickie v. Carter, 268, 269.] 42 111. 376 ; Roe v. Taylor, 45 III. 485 ; (() 1 Cox, 355; [Reynolds u. Root, 62 Turley v. Johnson, 1 Bush (Ky.), 116.] Barb. 250, 254, 255,] 68 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. IL proof that the act was obtained by this coercion ; by importunity which could not be resisted ; that it was done merely for the sake of peace ; so that the motive was tantamount to force and fear, (m) [In Davis v. Calvert, (m^) it was said by Buchanan C. J. that " a testator should enjoy full liberty and freedom in the making of his will, and possess the power to withstand all contra- diction and control. That degree, therefore, of importunity or un- due influence, which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient to invalidate it ; (w^) not in relation to the person alone, by whom it is so pro- cured, but as to all others, who are intended to be benefited by the undue influence." (m^) * In two important modern cases, in the prerogative court, wills made by persons of suflicient capacity, but of weak minds, have been set aside on the ground of improper influence. («*) The («) Williams v. Goude, 1 Hagg. 581 ; [Cordrey v. Cordrey, 1 Houston (Del.), 269 ; Tawney v. Long (Penn.), 2 Am. L. T. Rep. (N. S.) 341 ; 2 Central Law Journ. 531; Tyson v. Tyson, 37 Md. 567, 582; Davis V. Calvert, 5 Gill & J. 302 ; Duf- field ;;. Morris, 2 Harring. 384 ; Witman v. Goodhand, 26 Md. 95 ; Higeins v. Carlton, 28 Md. 118 ; Brown v. Molliston, 3 Whart. 137, 138 ; Lynch v. Clements, 9 C. E. Green, 431 ; Robb v. Graham, 43 Ind. 1 ; Berry v. Hamilton, 10 B. Mon. 129 ; Se- guine V. Seguine, 4 Abb. (N. Y.) App. Dec. 191 ; Small v. Small, 4 Greenl. 220 ; Trum- bull V. Gibbons, 2 Zabr. 117; Blakey v. Blakey, 33 Ala. 611 ; Taylor v. Kelly, 31 Ala. 59; Dean D.Negley, 41 Penn. St. 312; Sutton V. Sutton, 5 Harring. 459 ; Gardiner V. Gardiner, 34 N. Y. 162 ; Leverett v. Car- lisle, 19 Ala. 80 ; Floyd ». Floyd, 3 Strobh. 44 ; Clapp v. FuUerton, 34 N. Y. 190 ; Car- roll V. Norton, 3 Bradf. Sur. 291, 320; Gardner v. Gardner, 22 Wend. 526 ; Bun- dy V. McKnight, 48 Ind. 502; Leeper ». Taylor, 47 Ala. 221 ; Tomkina v. Tom- kins, 1 Bailey, 92 ; Potts v. House, 6 Geo. 324; Sechrest v. Edwards, 4 Mete. (Ky.) 163; Miller v. Miller, 3 Serg. & R. 267; Marshall v. Flinn, 4 Jones (N. Car.), 199 ; [48] Gilbert v. Gilbert, 22 Ala. 529-532 ; Tay- lor V. Kelly, 31 Ala. 59-70 ; Robinson v. Adams, 62 Maine, 369.] And see Bird v. Bird, 2 Hagg. 142 ; Constable v. Tufnell, 4 Hagg. 485 ; Browning v. Budd, 6 Moore P. C. 430 ; Sefton v. Hopwood, 1 Fost. & F. 578; Lovett v. Lovett, 1 Fost. & F. 581; [Hoge's case, 2 Brewst. (Pa.) 450; Tingley v. Cowgill, 48 Missou. 291 ; Mat- ter of Jackman, 26 Wise. 104.] As to undue influence, dependent on religious feelings, see Norton v. Relly, 2 Eden, 286; Huguenin v. Baseley, 14 Ves. 273; [see Weir's Will, 9 Dana, 440; In re Welsh, 1 Redf. Sur. 238 ; Gass v. Gass, 3 Humph. 278 ; on spiritualism, Robinson V. Adams, 62 Maine, 369.] (ui) [Davis V. Calvert, 5 Gill & J. 269, 302, 303.] (m^) [Wampler v. Wampler, 9 Md. 540 ; Floyd u. Floyd, 3 Strobh. 44 ; Means v. Means, 5 Strobh. 167.] {u") [Post, 50, note (c''*), and cases cited.] (m*) [See Forman v. Smith, 7 Lansing, 443; Mowry K. Gilber, 2 Bradf. Sur. 133; Nexsen v. Nexsen,3 Abb. (N.Y.) App.Dec. 360. Where doubt has been cast upon the testamentary capacity of a testator, less proof of undue influence is necessary CH. I. § II.] IMPORTUNITY — INFLUENCE. 69 will, in one of these cases, was made in favor of the attorney and agent of the testator ; («) in the other, by a wife in favor of her husband. («/) And in another case in the house of lords, (as) on an appeal from the Irish chancery, it was held, that where undue influence is exercised over the mind of the testator in making his will, the provisions in the will in favor of the person exercising that influence, are void ; (2^) but the will may be good, as far as respects other parties ; so that a will may be valid as to some parts, and invalid as to others ; may be good as to one party and bad as to another, (a) on the part of those opposing the will. McKinley v. Lamb, 56 Barb. 284. As to illness and undne influence, see McSorley V. McSorley, 2 Bradf. Sur. 188; Brush V. Holland, 3 Bradf. Sur. 461 ; Clarke v. Sawyer, 2 N. Y. 498 ; intemperance and undue influence, see O'Keill o. Murray, 4 Bradf. Sur. 311.] (x) Ingram v. Wyatt, 1 Hagg. 94. The judgment of Sir J. NichoU in this cele- brated case was reversed by the delegates ; 3 Hagg. 466 ; not, however, on any point of law, but on a view of the evidence of the cause. The correctness of Sir J. NichoU's judgment, so far as regards his exposition of the law on the subject of improper influ- ence, was recognized by the judicial com- mittee of the privy council in the case of Coekraft v. Rawles, 4 Notes of Cas. 237. [It was held in St. Leger's Appeal, 34 Conn. 434, that undue influence is pre- sumed, where the relation of attorney and client subsists between the testator and one of the legatees at the time of making the will, and such legatee drew the will; and the absence of such influence in that case is to be shown by the party sustaining the legacy ; but the presumption is one of fact and not of law, and may be rebutted by any proper evidence which satisfies the jury. There is no rule of law which re- quires the intervention of a third person. See Wilson v. Moran, 3 Bradf Sur. 172. Where a will executed by an old man dif- fers from his previously expressed inten- tions, and is made in favor of those who stand in confidential relationship to him, it raises a violent presumption of fraud and undue influence, which should be overcome by satisfactory testimony. Mil- ler P. J. in Forman u. Smith, 7 Lansing, 443, 450 ; Lee v. Dill, 11 Abb. 214 ; Mor- ris V. Stokes, 21 Geo. 552. And gener- ally, relations of confidence or dependence have an important bearing in estimating the effect of influence exerted by a person toward whom the testator bears such re- lations. See In re Welsh, 1 Redf. Sur. 238 ; Kevin u. Kevill, Kentucky, 6 Am. Law Keg. N. S. 79 ; Griffiths v. Robins, 3 Madd. 19; Huguenin w. Baseley, 14 Ves. 287 ; Daniel u. Daniel, 39 Penn. St. 191 ; Harvey v. SuUens, 46 Missou. 147 ; Taylor V. Wilburn, 20 Missou. 306 ; Tyler v. Gar- diner, 35 N. Y. 559 ; Marshall v. Flynn, 4 Jones (Law), 199 ; Boyd v. Boyd, 66 Penn. St. 283; Breed v. Pratt, 18 Pick. 115; Trumbull v. Gibbons, 2 Zabr. 117; Wil- son V. Moran, 3 Bradf. Sur. 172.] {y) Marsh v. Tyrrel, 2 Hagg. 84. In this case there was an appeal to the dele- gates ; but the case was afterwards com- promised. 3 Hagg. 471. (z) Trimlestown v. D' Alton, 1 Dow & CI. (N. S.) 85. (zi) [See Turner v. Cheesman, 15 N. J. Ch. 243 ; Florey v. Florey, 24 Ala. 241.] (a) [Ante, 42, 45, note (/) ; Morris v. Stokes, 21 Geo. 552 ; In re Welsh, 1 Redf. Sur. 238. If the undue influence or fraud affects the whole will, though exercised by one legatee only, the whole will is void. Florey u. Florey, 24 Ala. 241 ; Huguenin u. Baseley, 14 Ves. 289, 290 ; Lord Chief Justice Wilmot in Bridegroom v. Green, Wilm. 64 ; Bottoms v. Kent, 3 Jones (N. 70 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. 11. The subject of undue influence has lately received full consid- eration in a still later case in the house of lords, (h') on which occasion Lord Cranworth made the following observations: "In a popular sense, we often speak of *a person exercising undue influence over another, when the influence certainly is not of a nature which would invalidate a will. A young man is often led into dissipation by following the example of a companion of riper years, to whom he looks up, and who leads him to consider habits of dissipation as venial, and perhaps even creditable ; the companion is then correctly said to exercise an undue influence. But if in these circumstances the young man, influenced by his regard for the person who has thus led him astl-aj^ were to make a will and leave to him everything he possessed, such a will cer- tainly could not be impeached on the ground of undue influence. Nor would the case be altered merely because the companion had urged, or even importuned, the young man so to dispose of his property : provided only, that in making such a will, the young man was really carrying into effect his own intention, formed without either coercion or fraud. I must further remark, that all the difficulties of defining the point at which influence exerted over the mind of a testator becomes so pressing as to be prop- erly described as coercion are greatly enhanced when the question is one between husband and wife. The relation constituted by marriage is of a nature which makes it as difficult to inquire, as it would be impolitic to permit inquiry, into all which may have passed in the intimate union of affections and interests which it is the paramount purposes of that connection to cherish. " In order therefore, to have something to guide us in our in- quiries on this very difficult subject, I am prepared to say that influence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an Car.), 154.] See, further, on the subject tion was strong against the act; and the of influence, Mynn v. Robinson, 2 Hagg. evidence not being satisfactory, the will 179 ; in which case Sir John NichoU held was pronounced against, and the husband that when the will of « married woman, condemned in the costs. [Reynolds v. obtained while she was in an extremely Root, 62 Barb. 250. See Taylor v. Wil- weak state, nine days before death, by the burn, 20 Missou. 306.] active agency of the husband, the sole ex- (4) Boyse v. Rossborough, 6 H. L. Cas. ecutor and universal legatee, wholly de- 6 ; [3 De G., M. & G. 817. See Parfitt v. parted from a former will, deliberately Lawless, L. E. 2 P. & D. 462.] made a few months before, the presump- [49] CH. I. § II.] IMPORTUNITY — INFLUENCE. 71 influence exercised either by coercion or by fraud. (6^) In the in- terpretation, indeed, of these words, some latitude must be allowed. In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual yiolence has been used, or even threatened. The conduct of a person in vigorous health towards one feeble in body, even though not un- sound in * mind, may be such as to excite terror and make him ex- ecute as his will an instrument which, if he had been free from such influence, he would not have executed. Imaginary terrors may have been created suSicient to deprive him of free agency ; a will thus made may possibly be described as obtained by coer- cion. So as to fraud, if a wife, by falsehood, raises prejudices in the mind of her husband against those who would be the natural objects of his bounty, and by contrivance keeps him from inter- course with his relatives, (J^) to the end that these impressions, which she knows he had thus formed to their disadvantage may never be removed ; such contrivance may, perhaps, be equivalent to positive fraud, and may render invalid any will executed under false impressions thus kept alive, (c) It is, however, extremely difiicult to state in the abstract what acts will constitute undue in- fluence in questions of this nature. It is sufficient to say, that, allowing a fair latitude of construction, they must range them- selves under one or other of these heads — coercion or fraud." After observing, that where it has been proved that a will has been duly executed by a person of competent understanding and apparently a free agent, the burden of proving that it was exe- cuted under undue influence is on the party who alleges it, (c^) (Ji) [See Baldwin v. Parker, 99 Mass. {f) [See Marvin v. Marvin, 3 Abb. (N. 79, 84, 85 ; Howe v. Howe, 99 Mass. 88, Y.) App. Dec. 192 ; Dietriclc v. Dictrick, 99; Higgins v. Ciullon, 28 Md. 118; Ty- 5 Serg. & R. 207 ; Tyler v. Gardiner, 35 son u. Tyson, 37 Md. 567 ; Lynch v. Clem- N. Y. 559 ; Nussear v. Arnold, 13 Serg. & ent?, 9 C. E, Green, 431 ; Seguine «. Se- K. 323 ; Patterson v. Patterson, 6 Serg. & guine, 4 Abb. (N. Y.) App. Dec. 191 ; R. 633.] Gardiner V.Gardiner, 32 N. Y. 162 ; 34 N. (c) See ace. Allen v. McPlierson, 1 H. Y. 155 ; Hazard v. Hefford, 9 N. Y. Sup. L. Gas. 207, per Lord Lyndhurst; [Tyler Ct. 445 ; Hazard v. Hazard, 5 N. Y. Sup. v. Gardiner, 35 N. Y. 559 ;] White u. Ct. 79 ; Marshall v. Flinn, 4 Jones (N. White, 2 Sw. & Tr. 505 ; in which last Car.), 199; Stackhoiise v. Horton, 15 N.J. case Sir C. Cresswell held that a fraud of Ch. 202. Whether the undue influence this kind could not be set up under a plea must have been fraudulently exerted, see of undue influence. Wanipler u. Wampler, 9 Md. 540; Davis (ci) [In Baldwin w. Parker, 99 Mass. 79, V. Calvert, 5 Gill & J. 269 ; Stackhouse v. 84, 85, this point was fully considered by Horton 15 N J. Ch. 202.] Hoar J. who said, "The question is cer- [50] 72 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. his lordship thus proceeded : " In order to set aside the will of a person of sound mind, it is not sufficient to show that the circum- stances attending its execution are consistent with the hypothesis of its having been obtained by undue influence : it must be shown that they are inconsistent with a contrary hypothesis. The undue influence must be an influence exercised in a relation to the will itself, not an influence in relation to other matters or transac- tions, (c^) But the principle must not be carried too far. Where a jury sees that, at and near the time when the will sought to be * impeached was executed, the alleged testator was, in other impor- tant transactions, so under the influence of the person benefited by tainly not without difficulty, and the au- thorities upon it are very conflicting The objection to a will, that it was ob- tained by undue influence, is not one which it is easy to define with precision. The term seems to include both fraud and coer- cion. Sir John NichoU defines it to be that degree of influence which takes away from the testator his free agency ; such as he is too weak to resist ; such as will ren- der the act no longer that of a capable testator. Kinleside v. Harrison, 2 Phillim. 551. Where influence has been exerted upon a person of feeble mind, or whose faculties are impaired by age or disease, it is not always easy to draw the line be- tween the issues of sanity and of undue influence. So it is possible that in many cases the coercion might be such as to be available to set aside the will on the ground that it had not been executed by the testator. But where the issue of un- due influence is a separate and distinct is- sue, involving proof that the testator, though of sound mind, and intending that the instrument which he executes with all the legal formalities shall take effect as his will, was induced to execute it by the controlling power of another, we think the weight of authority and the best reason are in favor of imposing upon the party who alleges the undue influence the bur- den of proving it. And we are inclined to think that this has been the general prac- tice in this commonwealth. Glover v. Hayden, 4 Cush. 580." The most recent [61] decision in the court of appeals in the state of New York upon the question is to the same effect. Tyler v. Gardiner, 35 N. Y. 559 ; Forman u. Smith, 7 Lansing, 449 ; McKcone u. Barnes, 108 Mass. 344, 346; In re Will of Jackson, 26 Wise. 104; Tay- lor V. Wilburn, 20 Missou. 206. See Small u. Small, 4 Greenl. 224 ; Tyson i^. Tyson, 37 Md. 567, 582, 583; Howe v. Howe, 99 Mass. 88 ; Bundy v. McKnight, 48 Ind. 502.] (c^) [It must be a present constraint, op- erating on the mind of the testator, in the very act of making the will. Tlireats and violence, or any undue influence long past and gone, and in no way shown to be con- nected with the testamentary act, are not evidence to impeach a will. Woodward J. in McMahon v. Ryan, 20 Penn. St. 329 ; Eckert v. Flowry, 43 Penn. St. 46 ; Thompson v. Kyner, 65 Penn. St. 368; Jencks v. Court of Probate, 2 R. I. 255 ; Batton f . Watson, 13 Geo. 63 ; Chandler V. Ferris, t Harring. 454. See Taylor v. Wilburn, 20 Missou. 306. But in Davis V. Calvert, 5 Gill & J. 269, 303, it is said that " to avoid a will or testament, it is not necessary that threats or violence should have been practised or resorted to, at the time of making it. But it is enough if the will was made at any time afterwards, under the general controlling and continu- ing influence of fear, or dominion over the testator, by the person who so put him in fear, though not immediately exercised in regard to that particular instrument."] CH. 1. § II.J IMPORTUNITY — INFLUENCE. 73 the will, that as to them he was not a free agent, but was acting under undue control, the circumstances may be such as fairly to warrant the conclusion, even in the absence of evidence bearing directly on the execution of the will, that in regard to that also the same undue influence was exercised. "(ci) ((/) See, further, as to undue influence, Hall V. Hall, L. E. 1 P. & D. 481 ; Smith I). Smith, L. R. 1 P. & D. 239 ; [Stulz v. Schaefle, 16 Jur. 909. In regard to the evidence to establish the chai-ge of fraud and undue influence, it was said by Colt J. in Shailer v. Bnmstead, 99 Mass. 121, " two points must be sustained : first, the fact of the deception practised, or the in- fluence exercised ; and next, that this fraud and influence were effectual in pro- ducing the alleged result, misleading or overcoming the party in this particular act. The evidence under the first branch embraces all those exterior acts and decla- rations of others used and contrived to defraud or control the testator ; and under the last, includes all that may tend to show that the testator was of that peculiar men- tal structure, was possessed of those intrin- sic or accidental qualities, was subject to such passion or prejudice, of such perverse or feeble will, or so mentally infirm in any respect, as to render it probable that the eflforts used were succcessful in producing in the will offered the combined result. The purpose of the evidence in this di- rection is to establish that liability of the testator to be easily affected by fraud or undue influence which constitutes the nec- essary counterpart and complement of the other facts to be proved. Without such proof, the issue can seldom, if ever, be maintained. It is said to be doubtful whether the existence and exercise of un- due influence does not necessarily presup- pose weakness of mind, and whether the acts of one who was in all respects sound can be set aside on that ground in the ab- sence of proof of fraud or imposition. And it is certain that however ingenious the ft-aud or coercive the influence may be, it is of no consequence, if there is intelli- gence enough to detect and strength enough to resist them. The inquiry is of course directed to the condition at the date of the execution of the will, but the en- tire moral and intellectual development of the testator at that time is more or less involved ; not alone those substantive and inherent qualities which enter into the con- stitution of the man, but those less per- manent features which may be said to be- long to and spring from the affections and emotions, as well as those morbid develop- ments which have their origin in some physical disturbance. All that is peculiar in temperament or modes of thought, the idiosyncrasies of the man, so far as sus- ceptibility is thereby shown, present proper considerations for the jury. They must be satisfied by a comparison of the will, in all its provisions, and under all the exterior influences which were brought to bear upon its execution, with the maker of it as he then was, that such a will could not be the result of the free and uncon- trolled action of such a man so operated upon, before they can by their verdict in- validate it. As before stated, the previous conduct and declarations are admissible; and so, by the weight of authority and upon principle, are subsequent declara- tions, when they denote the mental fact to be proved. For by common observation and experience, the existence of many forms of mental development, especially that of weakness in those faculties which are an essential part of the mind itself, when once proved, imply that the infirmity must have existed for some considerable time. The inference is quite as conclusive that such condition must have had a grad- ual and progressive development, requiring antecedent lapse of time, as that it will continue, when once proved, for any con- siderable period thereafter. The decay and loss of vigor which often accompany old 74 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. Persons in the sea service are frequently under the pressure of Wills of urgent wants, and to procure an immediate supply of seamen: ^j^^gg wants (such as an outfit, or the like) they will, age furnish the most common illustration of this. It is difficult to say that decla- rations offered to establish mental facts of this description are of equal weight, whether occurring before or after the act in question. But if they are equally sig- nificant and no more remote in point of time, they are equally competent, and may be quite as influential with the jury The doctrines thus stated are maintained by the current of English and American authority." See Waterman v. Whitney, 1 Kernan, 157; Comstock v. Hadlyme, 8 Conn. 254 ; Moritz v. Brough, 16 Serg. & E. 402 ; McTaggart v. Thompson, 14 Penn. St. 149, 154; Robinson v. Hutchin- son, 26 Vt. 47 ; Boylan v. Meeker, 4 Dutcher, 274 ; Patteson J. in Wright u. Tatham, 5 CI. & Pin'. 715; Reel v. Reel, 1 Hawks, 248 ; Howell j). Barden, .3 Dev. 442; Cawthorne v. Haynes, 24 Missou. 236; Reynolds v. Root, 62 Barb. 250. On the other hand, " a will made when fraud or compulsion is used may neverthe- less be shown to be the free act of the party, by proof of statements in which the will and its provisions are approved, made when he is relieved of any improper influ- ence or coercion. It is always open to in- quiry whether undue influence in any case operated to produce the will ; and as the will is ambulatory during life, the conduct and declarations of the testator upon that point are entitled to some weight. Indeed, the fact alone, that the will, executed with due solemnity by a competent person, is suffered to remain unrevoked for any con- siderable time after the alleged causes have ceased to operate, is evidence that it was fairly executed ; to meet which, to some extent at least, statements of dissatisfac- tion with or want of knowledge of its con- tents arc worthy of consideration and clearly competent, however slight their in- fluence in overcoming the fact thatthere is no revocation." Colt J. in Shailer v. Bum- stead, 99 Mass. 125, 126. The able opin- ion of the learned judge in this case will repay a careful and entire perusal of it. Di- rect proof of undue influence can never, or at least but rarely, be given, and ordinarily it must be established by circumstances and inferences, to be drawn from facta, and the character of the transaction. These facts would scarcely be known to the sub- scribing witnesses, who are simply called to attest to the execution, and not to prove what usually would be beyond their knowl- edge. Miller P. J. in Porman v. Smith, 7 Lansing, 443, 449, 450. See McKeone v. Barnes, 108 Mass. 344; In re Jackman, 26 Wise. 104 ; Tinglcy v. Cowgill, 48 Missou. 291 ; Titlow V. Titlow, 54 Penn. St. 216 ; Kevil V. Kevil, 2 Bush (Ky.), 614 ; Jack- son u. Jackson, 32 Geo. 325. So it was said in Beaubien v. Cicotte, 12 Mich. 459, that, as cases of this class are determined generally upon circumstantial evidence, a very wide range of inquiry is permitted into the whole chain of circumstances attending the preparation of the will, and where the fraud and undue influence are imputed to the wife of the testator, his statements that he regretted his marriage, that he was not master at home, that he was afraid of his wife, and was compelled to submit to her demands, or otherwise there would be trouble in the house, are admissible evi- dence. So, where a will, which disinherited the testator's relatives in favor of his wife, was assailed for undue influence and want of capacity, it was held competent to prove the wife's abuse of the husband's relatives, and her quarrel with him about a former will in which he had made pro- vision for them. It is also admissible to prove that the testator made no complaint of any importunities on the part of his relatives, where it appeared that the wife had made charges of such importunities. Proof may also be given of former wills, and other pecuniary arrangements for the wife, as bearing upon the question whether the testator lias understandingly and of CH. 1. § II.] IMPOETUNITY — INFLUENCE. 75 without thought, comply with ahnost any condition proposed to them. These temporary necessities have been considered to ope- rate on them as a sort of duress, on the part of those wlio are to furnish the supply ; and it is partly on this consideration that the policj' of the law has been extended to guard the testamentary acts of this class of persons, (e) By statute 9 & 10 Wm. 3, c. 41, s. 6 (now repealed, but re- enacted), (/) it is provided, "that no will of any sea- ^^^^^^ ^^ man contained, printed, or written in the same instru- '.'"^/'^^ , ' J^ ' _ instrument ment, paper, or parchment, with a warrant or letter of witim-war- 1 n 1 1 •! 1 1 • 1 • rnnt nt". at- attorney, shall be good or available m law to any intent tomey, in- or purpose whatsoever." Soon after the passing of this ^'' ' ' statute, the case of Craig v. Lester was decided upon its construc- tion. There Sir Charles Hedges held, and his sentence was con- firmed by the delegates, that the will was invalid, though exe- cuted on* a different instrument from the power of attornej^ (^r) This decision, although it may not have gone beyond the spirit of the act, must, it should seem, be considered as a bold stretch of the words of it. The case of Craig v. Lester has been followed by numerous others in the prerogative court, fully establishing that wills of wills made by mariners as securities for debts are n,j,je ^^ void. (A) But neither the statute nor these decisions '^^^bi'lu-^'" must be understood as making the relation of agent and valid: his own free will changed his settled views, missioned officer of marines, or marine, Beaubien v. Cicotte, 12 Mich. 459. Wheth- shall be deemed good or valid in law, to er a will made under undue and control- any intent or purpose, which shall be con- ling influence may, when the influence has tained, printed, or wriitcn in the same iu- ceased to operate, be ratified and confirmed strument, paper, or parchment, with a by subsequent recognition, see O'Neall power of attorney. A similar enactment is V. Farr, 1 Rich. (S. Car.) 80 ; Lamb v. contained in stat. 28 & 29 Vict. c. 72, s. 4. Girtman, 26 Geo. 625; Taylor v. Kelly, (g) Delegates, nth June, 1714, cited by 31 Ala. 59. The exercise of undue influ- Sir John Nicholl, in Zacliaiias v. Collis, 3 ence to prevent a testator from revoking Phillim. 189. his will, is not sufficient ground for setting (A) Leake w. Harwood, 3 Phillim. 190; aside the will. Floj'd c. Floyd, 3 Strobh. Anderson v. Ward, 3 Phillim. IMO, cited by 441 Sir John Nicholl; Moore v. Stevens, 3 (e) Zacharias u. Collis, 3 Phillim. 177. Phillim. 190, in note (a); Zacbarias u. (/) The Stat. 9 & 10 W. 3, c. 41, s. 6, Collis, 3 Phillim. 176 ; S. C. 1 Cas. temp, was repealed and reenacted by the stat. 55 Lee, 409. See, also, Ilay v. Mullo, 2 Cus. G. 3, c. 60, s. 4. The latter statute was temp. Lee, 273 ; Ramsay v. Ciilcot, 2 Cas. itself repealed by the stat. 11 G. 4 and 1 temp. Lee, 322; Master v. Stone, 2 Cas. W. 4, c. 20, which last act provides that no temp. Lee, 339. will of any petty officer, seaman, non-com- [521 76 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. seaman, or the circumstance of the seaman being indebted to his agent, an absolute defeasance to the will, so that it could, in no case, be valid. The proper result to be deduced is, that when the relation of agent and seaman exists, there must be clear proof, not only of the subscription of the deceased to the instrument, but also of his knowledge of its nature and effect : that wherever it is executed merely as a security for a debt, it shall not operate as a testamentary disposition of the whole property ; but, on the other hand, though there may be a debt, yet if there be satisfactory evi- dence that the testator intended to dispose of his property by will, the instrument shall be valid, (i) Secus as to "^^^ equity of these statutes cannot be extended be- wiiis of yond the wills of mariners, so as to invalidate the wills other per- -^ sons. of other persons given to secure debts. (/) With regard to feme coverts, our law differs still more materi- Feme co- ally from the civil. Among the Romans there was no *'''''■* distinction : a married woman was as capable of be- queathing as a feme sole. (Jc) But with us a married woman is generally not Only * utterly incapable of devising lands (being ex- ofTaking cepted out of the statute of wills, 34 & 35 Hen. 8, c. a will: 5~)^ Q.1-^ ijy^; g^igQ g]jg jg incapable of making a testament of chattels, without the license of her husband ; and such a will, being considered a mere nullity, (P) will not be admitted to pro- bate in the court of probate : (T) for all her personal chattels are absolutely his and he may dispose of her chattels real, or shall have them to himself, if he survives her. (P^ It would there- (i) Zacharias v. CoUis, 3 Phillim. 202, Bransby v. Haines, 1 Cas. temp. Lee, 120 ; 203, 204. See, also, Deardsley «. Fleming, Tucker v. Inman, 4 M. & Gr. 1076. 2 Cas. temp. Lee, 98. (P) [The law upon this subject, both as [j) Florance v. Horance, 2 Cas. temp, to the rights of a married woman in her Lee, 87. property, real and personal, while living, (k) 2 Bl. Com. 497. and as to her power of disposing of it at (y) [And the husband could not enable her decease, has been very much changed his wife, whilst covert, either by his assent in her favor by modern legislation in or by any other means, to pass the legal many of the American States. To keep title to her lands by devise. West v. West, pace with this legislation requires a care- 4Eaiid. 380; Osgood y. Breed, 12 Mass. ful attention to the statutes of each state, 525 ; Wakefield v. Phelps, 37 N. H. 295.] and from those only can the present state (Ifi) [See Eastman J. in Wakefield v. of the law be learned. This should be Phelps, 37 N. H. 299 ; Osgood v. Breed, constantly borne in mind while seeking 12 Mass. 525 ; 2 Kent, 170 ; 4 Kent, 505 ; for the law regarding the testamentary ewlin D. Treeman, 1 Ired. (Law) 514.] power of married women. As to wills: (/) Steadman w., Powell, 1 Add. 58; A married woman in Massachusetts may [63] CH. I. § II.J WILLS OF MARRIED WOMEN. 77 fore be extremely inconsistent to giye her a power of defeating that provision of the law, by bequeathing those chattels to an- other, (m) The stat. 1 Vict. c. 26, has made no alteration in the law with respect to the testamentary capacity of a feme covert ; for by sect. 8 it is provided and enacted, that " no will made by any married woman shall be valid, except such a will as might have been made by a married woman before the passing of this act." But this section does not exclude the wills of married women from the operation of the 24th section, (n) as to a will speaking, as to the real and personal estate comprised in it, as if executed immediately before the testator's death, {o) or of the 27th section, as to a general gift being an execution of a power, (jo) [The disability of coverture differs materially from that of in- fancy, idiocy, or lunacy. It does not arise from natural infirmity, but is the creature of civil policy, and may be dispensed with at the pleasure of the contracting or disposing parties through whom the property is derived, so far, at least, as the jus disponendi is concerned, while the contrary has been decided with respect to infancy, which alone of the other enumerated disabilities could ad- make a valid will of her real and separate personal estate in the same manner as if she were sole, but such will shall not op- erate to deprive her husband of more than one half of her personal property without his consent in writing, nor shall it operate to destroy or impair, or enable her to destroy or impair, his rights as tenant by curtesy in her real estate. Genl. Sts. c. 108, §§ 9, 10. With the husband's consent in writing a married woman's will is effectual to pass all her real and personal estate, including his right as tenant by curtesy. Silsby v. Bul- lock, 10 Allen, 94. The indorsement of the assent of the husband upon the will, during the lifetime of the wife, seems to be a condition precedent to the validity of the will, as a testamentary instrument. Smith V. Sweet, 1 Gush. 470. Butnotwithstand- ing the effect of this statute respecting the necessity of the husband's assent to the full action of his wife's will, it is settled that she has power to make a valid dispo- sition of specific articles of her separate personal property by a donatio causa mor- tis, without the assent of her husband. Marshall t. Berry, 13 Allen, 43. By the present (1869) law of Maryland, a married woman has tlie power of devising in the same manner and with the same effect, as if she were single, all the property, real and personal, which belonged to her at the time of her marriage, if that took place since the adoption of the code (in 1860), and all the property which she may have acquired or received since that period by purchase, gift, grant, devise, bequest, or in course of distribution. Schull v. Murray, 32 Md. 9. See Buchanan v. Turner, 26 Md. 1. As to Pennsylvania, see Dickin- son V. Dickinson, 61 Penn. St. 401. As to Tennessee, see Code, § 2168; Johnson V. Sharp, 4 Coldw. (Tenn.) 45.] (m) Andrew Ognell's case, 4 Co. 51 ft; 2 Bl. Com. 498. (n) See post, pt. i. bk. u. ch. iv. § ii. ; pt. III. bk. III. ch. IV. § vm. (o) Thomas v. Jones, 1 De G., J. & S. 63. (p) Thomas v. Jones, 1 De G., J. & S. 63 ; Bernard v. MinshuU, Johns. 276. 78 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. mit of any question being raised on the subject ; (p^) as, of course, any attempt to give a power of disposition to an idiot or lunatic would be abortive, (p^)] Since the husband has no beneficial interest in the personal except of estate which the wife takes in the character of execu- property to ^^j-jx and as the law permits her to take upon herself winch she . -^ . . Ill is entitled that office, it enables her, in exception to the general rule droit, as that a married woman cannot dispose of property, to extcuinx. ^-^-^^^ ^ r^w\ jjj ^jj^g instance, without the consent of her husband ; restricted, however, to those articles to which she is entitled as executrix, (jjf) The effect of such an instrument is merely * to pass, by a pure right of representation, to the testator or prior owner, such of his personal assets as remain outstanding, and no beneficial interest which the wife may have in any part of them : and with respect to the assets which may have been re- ceived by the feme executrix during the marriage, and not dis- posed of, they immediately become the husband's property, and are not affected by the will, (r) As the husband may waive the interest which the law bestows Husband Oil him, he may empower the wife to make a will to may Msent (jjgpogg ^f jjgj. personal estate, (r^) Thus a husband wife's will: m^y assent to his wife's will, and such assent entitles the wife's executor to claim such articles of her personal estate which would have been her husband's as her administrator, (s) But in order thus to establish a will, the general assent that the hemiistas- ^^^® ^^^'^1 n^a^ke a wiU is not sufficient; it should be ^anicuia'r ^^^^'^'^ ^hat he has consented to the particular will that will: she has made, (i) and his consent should be given when (pi) [Hearle D. Greenbank, 3 Atk. 897 ; Osgood v. Breed, 12 Mass. 525, 532; 1 Ves. sen. 298. Contra, of a power sim- Holman u. Perry, 4 Met. 492 ; Morse v. ply collateral, Grange v. Tiving, Bridg. by Thompson, 4 Gush. 562 ; Fisher v. Kim- Ban. 107 ; 2 Sug. Pow. App. (7th ed.).] ball, 17 Vt. 323; Emery v. Neighbor, 2 (p'^) [1 Jarman "Wills (3d Eng. ed.), 33.] Halst. 142 ; Heath v. Withington, 6 Gush. (?) Scammell v. Wilkinson, 2 East, 497; Ex parte Fane, 16 Sim. 406. But 552; 1 Roper on Husb. & Wife, 188, see Hood v. Archer, 1 McGord, 225, 477 ; 189, 2d ed. ; Tucker v. Inman, 4 M. & Newell's case, 2 McGord, 453. But not of Or. 1076 ; [Cutter v. Butler, 25 N. H. her lands. See ante, 53, note (ifci).] 353.] (s) 1 Eoper on Husb. & Wife, 170, 2d (r) Hodsden v. Lloyd, 2 Bro. G. C. 534, ed. ; Tucker v. Inman, 4 M. & Gr. 1076 ; 543 ; 2 East, 556, 557 ; 1 Roper on Husb. [George v. Bussing, 15 B. Mon. 558.] & Wife, 189, 2d ed. As to what such articles are, see post, pt. (ri) [Newlin v. Freeman, 1 Ired. (Law) n. bk. iii. ch. i. § iii. 514; Cutter w. Butler, 25 N. H. 354, 355 ; («) Rex u. Bettesworth, 2 Stra. 891; [64] CH. I. § II.j WILLS OF MARRIED WOMEN. 79 it is proved, (m) He may, therefore, revoke his consent at any time during his wife's life, or after her death before probate, (a;) But this consent may be implied from circumstances ; (x^y what is and if after her death he acts upon the will, or once assent: agrees to it, he is not, it seems, at liberty to retract his assent, and oppose the probate. («/) And when the will is * made in pur- suance of an express agreement or consent, it is said that a little proof will be sufficient to make out the continuance of the con- sent after her death. (2) This assent on the part of the husband is no more than a waiver of his rights as his wife's administrator, (a) It husband's therefore can only give validity to the instrument, in "ssentjiniy the event of his being the survivor. Hence it follows, ^^ survive. that if he die before his wife, her will is void against her next of kin, so far as it derived its effect from his consent; and it, therefore, does not pass the right to property bequeathed to her during the coverture. (6) If the circumstances take place before the first of January, 1838 (and consequently the case does not fall within the A widow operation of the stat. 1 Vict. c. 26), a widow after the recognition [Cutter V. Butler, 25 N. H. 357 ; George v. Bussing, 15 B. Mon. 558.] (u) Henley v. Philips, 2 Atk. 49. [But see Smith v. Sweet, 1 Cush. 470, cited ante, 53, note {I ).] (x) Swinb. pt. 2, s. 9, pi. 10; 1 Eoper on Husb. & Wife, 170, by Jacob; 4 Burn E. L. 52; Brook v. Turner, 1 Mod. 211 ; 2 Mod. 170; [George v. Bussing, 15 B. Mon. 558. It has been held, that the husband may revoke his assent to a will made by his wife of her personal property, provided it be done before probate, in Es- tate of Wagner, 2 Ashmead, 448.] (a;i) [Cutter v. Butler, 25 N. H. 357, 358 ; Grimke v. Grimke, 1 Desaus. 366 ; Smelie v. Reynolds, 2 Desaus. 66.] {y) Eoper, ubi supra. Accordingly, in Maas u. Sheffield, Prerog. M. T. 1845, 4 Notes of Cas. 350; S. C. 1 Robert. 364 ; it was held by Sir H. Jenner Fust, that if, after the death of the wife, the husband does assent to a particular will, he is bound by that assent. [Cutter v. Butler, 25 N. H. 357.] Where a wife made a will, dis- posing of a fund over which she had a power, and also of a fund over vfliich she had no power, and made her husband her executor, and he proved her will generally, Sir L. Shadwell V. C. held that, as to the latter fund, the will was valid, as being made ex assensil viri. Ex parte Eane, 1 6 Sim. 406. [The decree of the probate court establishing the will of a married woman is conclusive of the validity of the will, and of course of her right to make it. Par- ker k. Parker, H Cush. 519; Poplin v. Hawke, 8 N. H. 124 ; Judson v. Lake, 3 Day, 318 ; Osgood v. Breed, 12 Mass. 531 ; Cutter V. Butler, 25 N. H. 343, 359 ; Ward V. Glenn, 9 Rich. (Law) 127.] (z) Eoper, ubi supra ; Brook v. Turner, 2 Mod. 173. See, also, Mr. Fraser's note to Forse & Hembling's case, 4 Co. 61 6. (a) 1 Roper on Husb. & Wife, 170; In the Goods of Smith, 1 Sw. & Tr. 127, per Sir C. Cresswell. (6) Stevens v. Bagwell, 15 Ves. 156 ; Eoper, ubi supra ; Price v. Parker, 1 6 Sim. 198 ; Noble v. Phelps, L. R. 2 P. & D. 276-283. [55] 80 OF THE CAPACITY TO MAKE A WILL. [PT. X. BK. H. set up her death of her husband may, without any formal repub- during co- lication, recognize her will made during her coverture ; verture, or . . . .,, , one made and the instrument, by such a recognition, will operate f^mftole. as a new will, (c) So (though if a will be made before marriage, and the wife survive the husband, the will does not re- vive by and upon the mere death of the husband), a woman by recognition, without any formalities, may republish, during her widowhood, a will that she made when a feme sole, and such will is then equally valid, as to personalty, as if made in her widowhood, {d} But by reason of the stat. 1 Vict. c. 26, no such recognition made on or after the 1st of January, 1838, can be effectual, notwithstanding the will itself were made before that date, (e) Hitherto the subject has only been considered with respect *to cases of wills which are merely valid by the husband's consent Will of to waive his rights as administrator. But it often occurs made'^in*'^ that the will of a married woman is made in pursuance of"agree-^ of an agreement before marriage, or of an agreement ment be- made after marriage, for consideration. Wills of mar- fore mar- _ ° riage, or by ried women made under such circumstances fall under virtue of a ^ -i ^ _/* i- power : the Same rules as those made by a jeme covert, by vir- tue of a power ; (/) concerning which it is thought more ad- visable to refer the reader to the several able treatises on that subject, than to enlarge this work by a farther discussion of not avaiia- it. Co') It must still be remarked, that although a dif- ble without , j. . . probate. ferent rule formerly prevailed, a testamentary appoint- ment of such a nature by a wife cannot now be made available, either at law or equity, without probate. (A) The court of (c) Miller v. Brown, 2 Hagg. 209 ; Bra- probate of such wills, see Goods of Thorild, ham V. Burchell, 3 Add. 264. 16 L. T. N. S. 853 ; of Fenwick, L. R. {d) Long K. Aldred, 3 Add. 48. 1 P. & D. 319 ; of Morgan, L. E. 1 P. & («) See post, pt. ji. bk. ii. ch. it. [The D. .323 ; of Hallyburton, L. R. 1 P. & D. willof a married woman, otherwise invalid, 90; Paglar v. Tongue, L. R. 1 P. & D. in not rendered valid merely by reason of 158 ; Cutter v. Butler, 25 N. H. 343, her husband's death in her lifetime ; it 359.] must be republished. Re Woliaston, 12 (g) 2 Roper, c. 19, s. 3 ; Sugden on W. R. 18.] Powers, ch. 3; as to the husband's right (/) 1 Roper on Hush. & Wife, 170; to administration, ctEfcroj-Mm, see /)os«, pt. i. Tucker v. Inman, 4 M. & Gr. 1077. See, bk. iv. ch. iii. § vii. ; bk. v. ch. ii. § i. also. Ex parte Tucker, 1 M. & Gr. 519 ; (A) Ross v. Ewer, 3 Atk. 160 ; Stone Car. & M. 82 ; [2 Kent, 170, 171 ; Picquet v. Forsyth, Dougl. 708 ; Jenkin v. White- V. Swan, 4 Mason, 455 ; Rich v. Cockell, house, 1 Burr. 431 ; Rich v. Cockell, 9 Ves. 9 Ves. 369; post, 61, note (2I). As to the 376 ; 2 Roper, 188, note (d), by Jacob; [56] CH. I. § II.] WILLS OF MARRIED WOMEN. 81 probate, however, will allow such appointment to be proved without the husband's consent (the probate being lim- p^o^ate ited to the property comprised in the power), (i) al- maybeob- though its former practice was to require the husband's su'^h a will concurrence before it would admit the instrument to husband's probate. (A;) Formerly the court of probate did not '^°°^^" " take upon itself to enter with any great minuteness into the con- struction of the powers under which wills of this kind vFere ex- ecuted, (Z) or as to the due compliance * with their conditions, (m) But according to the modern practice, until the decision of the case of Barnes v. Vincent (hereafter mentioned), the court of probate considered itself bound to decide in the first instance, not only whether there was a power authorizing the testamen- tary act, but also whether the power had been duly executed, before it gave the instrument the sanction of its seal, (n) Yet if the court felt any real doubt on the point, it was always deemed the safer course to admit the paper to probate, inasmuch as the production of such a probate will not alone be sufficient to induce a court of equity to act upon it ; for, with respect to other special circumstances which may be required to give the instrument effect as a valid appointment, viz, attestation, sealing, &c, the temporal courts have never been contented with the judgment of the spiritual court : (o) whilst on the other hand, Stevens v. Bagwell, 15 Ves. 139 ; Sugden on Powers, 332, 4th ed.; Tucker v. In- man, 4 M. & Gr. 1049; Tatnall v. Hankey, 2 Moore P. C. 342, 351 ; Goldsworthy V. Crossley, 4 Hare, 140 ; [Picquet v. Swan, 4 Mason, 443 ; Cutter v. Butler, 25 N. H. 353, 354; Newburyport Bank V. Stone, 13 Pick. 423 ; Osgood v. Breed, 12 Mass. 525; Holman t'. Perry, 4 Met. 492, 498 ; Whitfield v. Hurst, 3 Ired. Eq. 242 ; Heath v. "Withington, 6 Cush. 497, 500 ; West v. West, 3 Rand. 373.] (i) See post, pt. i. bk. iv. ch. iii. § vii. (k) Tappenden v. Walsh, 1 Phillim. 352 ; Moss v. Brander, lb. 254 ; Roper, ubi supra. See, also, Boxley v. Stubington, 2 Gas. temp. Lee, 540 ; Keller v. Bevoir, lb. 563. (/) It has been held that if the will be contested, the deed frotn which the power is derived must be pleaded in the allega- VOL. I. 6 tion of the executor, and exhibited. Tem- ple V. Walker, 3 Phillim. 394. So ad- ministration with the will of a married woman annexed, as executed in pursuance of a power, was refused, the power not being before the court. In the Goods of Monday, 1 Curt. 590. (m) 1 Phillim. 353 ; Braham u. Burch- ell, 3 Add. 264 ; Draper v. Hitch, 1 Hagg. 675. (n) Allen v. Bradshaw, 1 Curt. 1 10, 121 ; In the Goods of Biggar, 2 Curt. 336. (o) Rich V. Cockell, 9 "Ves. 376 ; 2 Roper on Husb. & Wife, 189; Price v. Parker, 16 Sim. 198. However, if the instrument has been admitted to probate, a court of equity is precluded from questioning it as a will ; and the only office of that court is to see that it has been duly executed and attested according to the power. Douglas V. Cooper, 3 My. & K. 378 ; Whicker v. [57] 82 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. if the court of probate should reject the paper, its decision would be final; as the court of construction will not proceed to the consideration of the effect of any testamentary paper, till it has been proved in the probate court, (p') But at last, in the case without °f Barnes v. Vincent, (q) it was held by the judicial any decis- committee of the privy council (reversing the decision whether it of the prerogative court of Canterbury), that the proper izedbythe course for the * ecclesiastical court is to grant probate fts^xecu-* wheresoever the paper professes to be made and exe- ''''°- cuted under a power, and is made by one whose capacity and testamentary intention are clear, and no other objection occurs save those connected with the power (for example, no objection on the provisions of the wills act), and to leave the court which has to deal with the rights under that instrument, to decide whether or not it is authorized by that power and by its execution. Their lordships appear further to have been of opinion, that, on a power being alleged, the ecclesiastical court should grant probate, with- out going into any question as to the existence of the power. The decision in this case was declared by their lordships to be a resto- ration of " the ancient and laudable practice " of the ecclesiastical court. It may be remarked that, in this case, the will had been exe- cuted in 1826, and, therefore, before the new statute of wills (1 Vict. c. 26) had come into operation. By the 10th section of that act the will of a married woman who has a right to make a will under a power must, in order to be valid, be executed in the same manner as is required by that statute in respect of all other wUls ; and if it be so executed, it is enacted that the will shall be a valid execution of the power (as far as respects the execution and attes- tation), notwithstanding the terms of the power require some addition or other form of execution or solemnity. It follows that some of the reasons of inconvenience, by which the court was influenced in this case of Barnes v. Vincent, apply with less force to the case of a will executed after the new statute began to operate. And on this account, in the subsequent case of Este v. Hume, 7 H. L. Cas. 124, 144. But see (p) 1 Curt. 121, 122 ; In the Goods of Morgan v. Annis, 13 De G. & S. 461. Biggar, 2 Curt. 336. See post, pt. i. bk. [If no special formalities are prescribed, iv. ch. in. § ix. But see, also, Golds- the decree of the ecclesiastical court grant- worthy v. Crossley, 4 Hare, 140, 145. ing probate is of course final. Ward v. [q) 4 Notes of Cas. Suppl. xxi. ; S. C. Ward, 11 Beav. 377.] 5 Moore P. C. 201. [58] CH. I. § II.] WILLS OF MARRIED WOMEN. 83 Este, (r) Sir H. Jenner Fust thought that the dieta in the privy council, above stated, leading to the conclusion that the ecclesi- astical court has no right to look to the power, must be construed in reference to the law prior to the year 1838 ; and the learned judge held that an allegation propounding a will, dated in 1845, of a married * woman, and alleging it to have been made in pur- suance of a deed of settlement, but without producing the deed, must be reformed by pleading and annexing that instrument. In the progress of the case, however, the same judge held that the court had no jurisdiction to try the validity of the power. With reference to the observations of Sir H. Jenner Fust, it may be remarked that the statute does not appear at all to affect the jurisdiction of the court of probate in these matters. It merely enacts that powers to be exercised by testamentary acts shall, as to the mode of execution, be the same as in ordinary testa- mentary instruments. The court of probate must decide whether this form of execution has been duly complied with. But its judgment is no more binding on a court of equity than before the statute, (s) In these cases where a will is made by a married woman under a power, her executors do not take jure representa- ^?l^^°^-\i tionis, but merely under the power which she was au- of a mar- thorized to exercise by making a will as to particular an made property. And, consequently, the title of her executors ^ovm uke cannot extend beyond the property disposed of by her ^"'^^'^"Ire- will. (t^ sentationis. By rule 15, 1862, P. R. (non-contentious business), in grant- ing probate of a married woman's will made by virtue g ^.^j^ .^g of a power, or administration with such will annexed, 1862, grant ■t^ . . 11°' probate the power under which the will purports to have been to specify 1 . „ , . , . the power. made must be specmed in the grant. The divorce act (1857), section 21, enacts, " that a wife who has obtained a protection order by reason of her husband WiUof , . 1 j; feme cove having deserted her, shall, during the continuance thereof, of prop- i coverl (r) 2 Robert. 351. (0 Tugman u. Hopkins, 4 M. & Gr. (s) Brenchley v. Lynn, 2 Eobert. 461, 389 ; O'Dwyer u. Geare, 1 Sw. & Tr. per Dr. Lushington. See, also, De Chate- 465. And, consequently, there is an in- lain V. De Pontigny, 1 Sw. & Tr. 411, testacy as to property not disposed of by in which case Sir C. Cresswell recognized the power, and acted on the principle laid down in Barnes v. Vincent. [59] 84 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. ertjr ac- fce and be deemed to have been, during such desertion quired . , - -, after a pro- of her, in like position m all respects, with regard to order? property, as * she would be if she had obtained a decree of judicial separation." And by the 25th section, referring to property acquired by the after a ja- wife from the date of the sentence of judicial separa- aratiou?'*' tion, it is provided that " such property may be disposed of by her in all respects as a feme sole, and on her decease the same shall, in case she shall die intestate, go as the same would have gone if her husband had been then dead." Under these en- actments, a woman, having been deserted by her husband, ob- tained a protection order by reason of his desertion. On her death, in the life of her husband, intestate, the court decreed letters of administration, limited to such personal property as she had ac- quired or become possessed of since the desertion, without specify- ing of what that property consisted, to be granted to one of her next of kin. (m) It need hardly be observed, that if a will of a married woman, Will an- made under a power, be obtained by the husband by duly ob- undue influence and marital authority, contrary to her tamed or . _ . . unduly de- real wishes and intentions, such will not be admitted to marital au- probate, (a;) So if a wife have power to dispose of ' °"^' property by her will, makes her will, and afterwards destroys it by the compulsion of her husband, it may be estab- lished, upon satisfactory proof of its having been so destroyed, and also of its contents and execution, (y) Besides this case of a will, made by a married woman by virtue yi'i of of a power, there are other circumstances under which jeitie CO- ■*- Mrt of per- a will made by her is valid without the assent of her settled, or husband, viz, where personal property is actually given be?euied, Or * settled, or is agreed to be given or settled, to the arato'^user Separate use of the wife. In such a case it has been (u) In the Goods of Worman, 1 Sw. & mencement of desertion, see stat. 21 & 22 Tr. 513. The requirement in the statute Vict. u. 108, ». 7 ; Bathe v. Bank of Eng- as to the entry of the protection order land, 4 Kay & J. 564 ; post, pt. ii. bk. iv. with the registrar is directory only. In ch. ii. the Goods of ITaraday, 2 Sw. & Tr. 369. (x) Marsh o. Tyrrell, 2 Hagg. 84 ; As to property to which the wife becomes Mynn v. Eobinson, 2 Hagg. 179. entitled as executrix or administratrix (y) Williams v. Baker, Prerog. Trin. since the sentence of separation or com- Term, 1839. [60] [61] CH. I. § II.J WILLS OF MARRIED WOMEN. 85 established, since the case of Fettyplace v. Gorges, (z) that she may dispose of it as a feme sole, to the full extent of her interest, although no particular form to do so is prescribed in the instru- ment by which the settlement or agreement was made. (2^) The principle upon which that decision was founded is this : that when once the wife is permitted to take personal property to her separate use as a feme sole, she must so take it with all its privi- leges and incidents, one of which is the jus disponendi. (a) And it may be stated as a general rule, that personal property which has been acquired by a married woman under property in such circumstances that it became her separate estate, as weiUs may be dealt with by her as if she were a feme sole. (J) P''^^«««"'°- (z) 1 Ves. jun. 46 ; S. C. 3 Bro. C. C. 8. (2I) [2 Kent, 170, 171. It has recently been decided, that a married woman, when not restrained from alienation, has, as in- cident to her separate estate, and without any express power, a complete right of alienation of that estate by instrument in- ter vivos or will. Taylor v. Meads, 4 De G., J. & S. 597; Hail v. Waterhouse, 11 Jur. N. S. 361 ; 6 N. E. 20; 13 W. R. 633 ; Porcher v. Daniel, 12 Rich. Eq. 339 ; Pride v. Bubb, L. R. 7 Ch. Ap. 64; Cut- ter V. Butler, 25 N. H. 343 ; Caldwell v. Renfrew, 33 Vt. 213; Burton v. Holly, 18 Ala. 408; 2 Story Eq. Jur. § 1394 et seq. ; Willard v. Eastham, 1 5 Gray, 328 ; La Touche v. Latouche, 3 H. & C. 576, and note at the end, in the Am. ed. ; Bes- tall V. Bunbury, 13 Ir. Ch. Rep. 549 ; Johnson v. Gallagher, 3 De G., F. & J. 494, and note (2) to Am. ed. ; Dewey J in Ela v. Edwards, 16 Gray, 91, 101. In such case, she may devise even an estate in fee. Taylor v. Meads, supra ; Hall v. Waterhouse, supra; Pride v. Bubb, su- pra.] (a) Peacock v. Monk, 2 Ves. sen. 191 ; Rich V. Cockell, 9 "Ves. 369 ; Wagstaff v. Smith, 9 Ves. 520 ; 2 Roper on Husb. & Wife, 182. See, further, on this subject, Mr. Belt's note to Fettyplace v. Gorges ; Hulmeu. Tenant, 1 Bro. C. C. 16; Sock- et! V. Wray, 4 Bro. C. C. 487 ; Sturges ti. Corp, 13 Ves. 192 ; Essex v. Atkins, 14 Ves. 542 ; Heatley v. Thomas, 15 Ves. 596; Dalbiac v. Dalbiac, 16 Ves. 116; Bullpin V. Clarke, 17 Ves. 365; Power w. Bailey, 1 Ball & Beatty, 49 ; Greatly v. Noble, 3 Madd. 94 ; Stuart v. Lord Kirk- wall, lb. 389 ; Aguilar v. Agnilar, 5 Madd. 418; Howard v. Damiani, 2 Jac. & W. 458; Acton K. White, 1 Sim. & Stu. 429; Braham v. Burchell, 3 Add. 263 (in Sir J. Nicholl's judgment), and Mr. Fraser's note to Forse & Hembling's case, 4 Co. 61 b. But if she dies intestate, the fund will belong to her husband jure mariti. Molony v. Kennedy, 10 Sim. 254 ; Lech- mere V. Brotheridge, 32 Bear. 353. (b) As to what shall be considered as such separate estate, see Haddon v. Flad- gate, 1 Sw. & Tr. 48 ; In the Goods of Smith, lb. 125 ; In the Goods of Crofts, L. R. 2 P. & D. 18. In Haddon v. Flad- gate, ubi supra, the marriage took place in 1811, and in 1817 the husband and wife verbally agreed to separate and not to interfere with each other, and divided their then furniture and effects ; and they never again cohabited, and the wife sup- ported herself by her own industry and acquired property ; it was held that such property had been acquired to the wife's separate use, and therefore the jus dispo- nendi would attach to it. See, also, post, pt. II. bk. II. ch. II. ■> III. where the gen- eral subject of the separate property of a widow as against her husband's executors is considered. OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. II. And this rule prevails without regard to the * circumstance, whether the property be in possession or reversion, (c) and whether it be vested or contingent, (d) And when she has such extends to ^ power over the principal, it extends also to its produce accretions, ajuj accretions, e. g. the savings of her pin-money, (e) Nor does it make any difference whether the property be given to trustees for the wife's separate use, or, without the intervention of trustees, to the wife herself, for her own separate use and bene- fit ; (/) for in the latter case a court of equity would decree the husband to stand as a trustee to the separate use of the wife. (£) If a wife acquires any property after her husband's death, it Property cannot pass by a will made during her coverture, though by the wife by the consent of her husband ; for at the time of making band's " ^^ "'^ill she was intestable as to that property. (A) And death. ^jjg |^^ -^^ ^j^jg respect remains, it should seem, unaltered (c) Sturgis 0. Corp, 13 Ves. 190; Headen v. Eosher, 1 M'Cl. & Y. 89 ; 2 Koper on Husb. & Wife, 184. {d) [Lechmere v. Brotheridge,] 32 Beav. 353. (e) Gore w. Knight, 2 Vern. 535 ; Her- bert ti. Herbert, Free. Ch. 44 ; 1 Eq. Ca. Abr. 66, 68 ; [Picquet u. Swan, 4 Mason, 454,455; 2 Kent, 170, 171.] Accordingly, she may dispose by will, as against her husband, of the savings out of her alimo- ny. Moore v. Barber, 34 L. J. N. C. Ch. 482; [11 Jur. N. S. 539;] coram Stuart V. C. (/) See the judgment of Sir John Nich- oU, in Braham -o. Burchell, 3 Add. 263 ; \ani&, 61, note (zl) ; Ela v. Edwards, 16 Gray, 91, 101. As to real estate, it has been a controverted point, whether any ante-nuptial contract made solely by the parties, without the intervention of a trus- tee, could be effectual to clothe the wife with the power of disposing of the same by will. But as to this, the case of Bra- dish V. Gibbs, 3 John. Ch. 523, where the whole subject was very fully considered by Chancellor Kent, is a veiy strong au- thority to the point that it is not necessary that the legal estate should he^vested in a trustee, and that a mere agreement en- tered into before marriage by s, feme sole with her intended husband, by which he [62] stipulates that she shall have power to dispose of her real estate by will, confers upon her the power to do so. This doc- trine has received the approbation of the supreme court of Pennsylvania. West V. West, 10 Serg. & E. 447. See Holman V. Perry, 4 Met. 492, 497 ; Ela v. Edwards, 16 Gray, 91, 101.] ig) Tappenden v. Walsh, 1 Phillim. 352, and the authorities there cited ; Eolfe V. Budder, Bunb. 187. See, also, Parker V. Brooke, 9 Ves. 583 ; lb. 375. [Equity will carry into effect the will of a married woman disposing of her real estate in favor of her husband, or other persons than her heirs-at-law, provided the will be made in pursuance of a power reserved to her in and by the ante-nuptial agreement with her husband. 2 Kent, 172; Brar dish V. Gibbs, 3 John. Ch. 523. See Hol- man V. Perry, 4 Met. 492, 495 ; Picquet v. Swan, 4 Mason, 443. Eespecting the power of a married woman to devise her real estate to her husband, as affected by recent legislation, in New Hampshire, see Wakefield v. Phelps, 37 N. H. 295 ; Cutter V. Butler, 25 N. H. 352 ; Marston V. Norton, 5 N. H. 205 ; in Massachusetts, see Morse v. Thompson, 4 Cush. 563; Burroughs v. Nutting, 105 Mass. 228.] (A) Scammell v. Wilkinson, 2 East, 556 ; Swinb. pt. 2, s. 9, pi. 5. CH. I. § II.J WILLS OF MARRIED WOMEN. 87 notwithstanding that, by the 24th section of the new statute of wills (1 Vict. c. 26), every will is to be construed to speak and take effect as if it had been executed immediately before the death of the testatrix, unless a contrary intention shall appear by the will ; for the effect of that is not to make a will valid which was invalid in its inception, but to give a rule for the construction of a valid testamentary instrument, (i) If a, feme sole makes her will, and afterwards marries, such sub- sequent marriage is a revocation, and entirely vacates the will made will; and although she should survive the husband, a ^^£^7'*^ will * made before marriage will not revive upon his marriage, death, without a republication. (/) A will of a/eme covert, made during coverture, in vir- will made tue of powers vested in her under her marriage settle- d^,.]^'!^ ment, is not revoked by her surviving her husband. (Jc) carriage A woman whose husband is banished by act of par- voked by ,. 1 Ml T • her surviv- liament may make a will, and act m every respect as a. ing her feme sole. (T) So where a married woman, whose hus- band was a convict, made a will, probate thereof was wh^seTus- granted, on proof given that the property bequeathed btm^hed was acquired by her subsequently to her husband's con- or convict, viction, though he had received a conditional pardon from the governor of the colony whither he had been transported ^^^ ^^ for life, (m) And the queen consort is an exception to consort. the general rule ; for she may dispose of her chattels by will with- out the consent of her lord, (n) Where a married woman was a native of Spain, and domiciled there, and it appeared, upon affidavit, that, by the law Will of of Spain, she had full power and authority to bequeath, woman, as z,feme sole, the property she brought her husband on "nd domi- her marriage, probate was granted of her will, made ac- j^'^gf '"' * cording to the law of that country, (o) country. (i) Price V. Parker, 16 Sim. 198, 202. (m) In the Goods of Martin, 2 Robert. {j) Post, pt. 1. bk. II. ch. III. § v.; 405; In the Goods of Coward, 29 Jur. [Wollaston, in re, 12 W. R. 18.] (O. S.) 569; S. C. 24 L. J. (N. S.) P., M. (k) Morvvan v. Thompson, 3 Hagg. & A. 120. 239 ; Trimmell v. Fell, 16 Beav. 537, 541. (n) 2 Bl. Com. 498. (Z) Portland v. Prodgers, 2 Vern. 104; (o) In the Goods of Maraver, 1 Hagg. Compton V. Collinson, 2 Bro. C. C. 385 ; 498. See post, pt. i. bk. iv. ch. iv § [Cutter V. Butler, 25 N. H. 353.] vi. [63] 88 OF THE CAPACITY TO MAKE A WILL. [PT. I. BK. U. SECTION in. Persons incapable from their Criminal Conduct. Persons incapable of making testaments on account of their Traitors criminal conduct are, in the first place, all traitors and and fel- , , . , . ons. [p) * felons, from the time of their conviction : for then their goods and chattels are no longer at their own disposal, but for- feited to the king. (§') Neither can afelo de se make a will of goods and chattels ; for they are forfeited by the act and manner of his death ; (r) although he may make a deyise of his lands, for they are not subjected to any forfeiture, (s) But though the goods are forfeited so that the will cannot operate on them, it does not follow that he is incapable of making a will and appointing an executor ; and in a late case Sir C. Cresswell granted probate of the will of a person who had been found felo de se by a coroner's inquest, acting, it should seem, on the distinction between the operative effect of a testamentary paper and its title to pro- bate, (i) Indeed, probate may be requisite in such a case, not only for the purpose of passing property held by the deceased in auter droit, but also to enable the executor to exercise his un- doubted right to traverse the inquisition, (u) And if a convict traitor or felon obtain the king's pardon, and be thereby restored to his former estate, then may he make his testament, as if he had not been convicted, (v) And if he hath goods, as executor to another, the same are not forfeited by conviction : whence it follows, that of such goods he may make his will. (w~) (p) See Stat. 33 & 34 Vict. c. 23. traversing an inquisition or presentment (q) 2 Bl. Com. 499 ; Swinb. pt. 2, s. 12, of felo de se. 13 ; Godolph. pt. 1, c. 12. [As to forfeit- (s) 3 Inst. 55 ; 4 Burn E. L. 62. ure of estate under the laws of the United (*) In the Goods of Bailey, 2 Sw. & Tr. States and of the several states, see 2 156. Kent, 386. In Kentucky, a person under (u) See post, pt. ii. bk. iii. ch. iv. as to sentence of death may make a will ; Ban- the executors or administrators of the de- kin V. Eankin, 6 Monroe, 531 ; and this is ceased traversing an inquisition or pre- doubtless true in other states.] sentment of felo de se. (r) 2 Bl. Com. 499 ; Swinb. pt. 2, s. 20. (v) Swinb. pt. 2, s. 12, pi. 3 ; Godolph. See post, pt. II. bk. m. ch. it. as to the pt. 1, >;. 12, pi. 1. executors or administrators of the deceased (w) Godolph. pt. 1, t. 12, s. 2 ; 4 Bum E. L. 61. [64] CH. I. § in.] PERSONS INCAPABLE FROM CRIMINAL CONDUCT. 89 Outlaws, also, though it be but for debt, are incapable of mak- ing a will as long as the outlawry subsists ; for their goods and chattels are forfeited during that time, (a;) But a * man outlawed in a personal action may, it is said, in some cases make executors ; for he may have debts upon contract which are not forfeited to the king ; and those executors may have a writ of error to reverse the outlawry, (z/) Before the stat. 53 Geo. 3, c. 127, there was some doubt whether an excommunicate person could make a will : C^) but, Persona , ... , excommu- by that statute, excommunication is not to be pronounced nicate. except in certain cases ; and by sect. 3, in those cases, parties excommunicated shall incur no civil incapacity whatever. As for persons guilty of other crimes short of felony, who pe^o^g are by the civil law precluded from making: testaments si'ity of , crimes (as usurers, libellers, and others of a worse stamp) , by short of the common law their testaments are good, (a) ^ '"^^' (x) 2 Bl. Com. 499 ; Godolph. pt. 1, c. of New Hampshire prohibiting all secular 12, s. 8 ; Swinb. pt. 2, s. 21, pi. 4. But it work, business, or labor on that day, and seemeth, that he who is outlawed in an is therefore valid notwithstanding that action personal may make his testament statute. George v. George, 47 N. H. 27. of his lands ; for they are not forfeited. So in Massachusetts, a will is valid though Swinb. pt. 2, s. 21, pi, 7. executed on the Lord's day. Bennett-w. [y] Shaw v. Cutteris, Cro. Eliz. 851; Brooks, 9 Allen, 118. So in Pennsylvania, 4 Burn E. L. 62 ; Wentw. c. 1, p. 37, being made while the testator was in 14th ed. danger, or while he had a well-founded (z) Swinb. pt. 2, s. 22 ; Wentw. c. 1, belief that he was in danger, of immediate p. 38 ; 4 Burn E. L. 62. death. Weidman v. Marsh. 4 Pa. Law (a) 2 Bl. Cora. 499. [The execution of Jour. Eep. 401.] a will on Sunday is not within the statute [65] 90 FORM OF MAKING A WILL (BEFORE JAN. 1838), [PT. I. BK. n. * CHAPTER THE SECOND. OF THE FORM AND MANNER OF MAKING A WILL OE CODICIL. Befoee the passing of the stat. 1 Vict. c. 26 (^Actfor the Amend- ment of the Laws with respect to Wills'), no solemnities of any kind were necessary for the making of a will of personal estate. The fifth section of the statute of frauds, which required the formalities of signature and attestation for a devise of lands, did not extend to wills of personal property. The nineteenth section made it necessary that they should, generally speaking, be reduced into writing in the testator's lifetime ; inasmuch as it was thereby enacted that no nuncupative will (where the estate thereby be- queathed exceeded the value of 30?.) should be good, except under certain circumstances which will be hereafter pointed out. (a) But no other formality whatever was necessary to give them effect and operation. Whence it often happened that a will, intending to dispose of both real and personal estate, was inoperative as to the former, and at the same time a perfect disposition of the latter. The new statute repeals the statute of frauds so far as relates iVict *° ^^^^® ^"^^''' ^®- ^' ^' ■'■^' ■^^' ^^' ^^' ^^' ^'^^ ^^)' and contains enactments, the result of which is, that, on or after the first day of January, 1838, the solemnities prescribed by the act are required to render valid any will or other testa- mentary disposition of every description of property without dis- tinction ; so that the same formalities of execution and attestation are necessary, whether the instrument disposes of real or of per- sonal estate, (a^) (a) Post, § VI. by stat. 12 Car. 2, c. 24, o. 8, which has (ai) [A will may be made to include been quite extensively adopted in the the appointment of a guardian for one's American States. 2 Kent, 224, 225 ; Ward- minor children. The authority to make well w. Wardwell, 9 Allen, 519; Balch u. such appointment did not exist at com- Smith, 12 N. H. 440, 441 ; Noyes v. Bar- men law. Wardwell v. Wardwell, 9 Allen, ber, 4 N. H. 406 ; McPhillips v. McPhil- 518, 519. It was conferred in England lips, 9 E. I. 536. Such guardianship is a [99] CH. II.] OF THE FORM, ETC. OF MAKING A WILL. 91 * These enactments are contained in the following sections of the statute of Victoria : personal trust and not assignable. Eyre V. Countess of Shaftsbury, 2 P. Wms. 121 ; Gilchrist J. in Balch u. Smith, 12 N. H. 441. In general, the father only can appoint the guardian. Gilchrist J. in Balch u. Smith, 12 N. H. 441 ; Vanarts- dalen v. Vanartsdalen, 14 Penn. St. 384 ; Holmes v. Field, 12 111. 424 ; Norris u. Harris, 15 Cal. 226 ; and he can appoint only for his own children. Brigham v. Wheeler, 8 Met. 127. Under the General Statutes of Massachusetts, c. 109, § 5, a testamentary guardian can only be ap- pointed by a will executed in the manner provided for the execution of other wills. Wardwell v. Wardwell, 9 Allen, 518. But the expressed wish of the father in a paper, not entitled to probate as a will, is entitled to great regard in the matter of appointing a guardian for his children. Wardwell d. Wardwell, 9 Allen, 518, 524; Watson V, Warnock, 31 Geo. 716. So the expressed desire of a mother in her will that certain persons should be ap- pointed guardians of her children where the father has expressed no wish, is de- serving of great attention, although she may have no legal power to appoint guar- dians. In re Kaye, L. R. 1 Ch. Ap. 387 ; In the Matter of Turner, 4 C. E. Green (N. J.), 433. It has been held that the father's testamentary power does not ex- tend to illegitimate children. Sleeman u. Wilson, L. R. 13 Eq. 36. See Goods of Parnell, L. R. 2 P. & D. 379. No partic- ular form of words is necessary for the appointment of a guardian by testament. The manifestation of the intention of the testator by the will is all that is required. An assignment, which confers, expressly or by implication, a power extensive enough to include " custody and tuition," the stat- utory words, is enough. Swinb. pt. 3, § 12. Under a provision by which the profits of land devised to a boy by his father, were given to the boy's mother till his fuU age for his maintenance and edu- cation, it was said by Justices Wray and Southcote, that nothing was devised to the mother " but a confidence," and that she was " as guardian or bailiff to keep the infant." Leonard, pt. 2, p. 221. A devise that the son should be under the " care and direction " of two persons des- ignated in the will, was held to constitute them testamentary guardians, in Bridges V. Hales, Moseley, 108. So, in Mendes v. Mendes, 3 Atk. 624, Lord Hardwicke thought that language, by which the tes- tator gave to his wife a certain annual sum for the maintenance and education of his children whilst they should continue to live with their mother, and at her charge, amounted to " a devise of the guardian- ship " to the mother. In Miller v. Harris, 14 Sim. 540, where the testator directed the trustees of his will to procure a suit- able house for the residence of his children, who were infants, and to engage a proper person for the purpose of taking the man- agement and care of the house, and of his children during their minorities, and he requested his late wife's sister, if she should be alive at his decease, to take such management and care on herself, it was held that the testator had thus appointed his wife's sister guardian of his children. A direction, that during the minority of a daughter of the testator, the income of the estate which he bequeathed to her be paid to her mother for the support, maintenance, and education of the daughter, constitutes the mother testamentary guardian, and en- titles her to receive the income. Macknet V. Macknet, 1 1 C. E. Green, 278. The gen- eral, jurisdiction, in which resides the power of removing a guardian, is in general ex- tended over guardians appointed by will as well as over those appointed by the court. McPhillips V. McPhillips, 9 R. I. 536 ; 2 Dan. Ch.Pr. (4th Am.ed.) 1352, note (5); In re Andrews, 1 John. Ch. 99 ; Ex parte Crumb, 2 John. Ch. 439 ; Wilcox v. Wil- cox, 4 Kernan (14 N. Y.), 575 ; 2 Kent, 227. It is said by Chancellor Kent that a will merely appointing a testamentary [67] 92 FORM OF MAKING A WILL (BEFORE JAN. 1838). [PT. L BK. II. Sect. 9. "No will [or codicil, or other testamentary disposi- Every will tion] (5) shall be valid, unless it shall be in writing, and writiilg '° executed in manner hereinafter mentioned ; (that is to by'\hlTs^- s^y)' i* shall be signed at the foot or end thereof by the tatorinthe testator, Or bv some other person in his presence and presence of •' \ , n i j two wit- by his direction ; and such signature shall be made or onftfm*: acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testa- tor ; (6') but no form of attestation shall be necessary." guardian need not be proved. 2 Kent, 255. But see Wardwell v. Wardwell, 9 Allen, 518.] (6) See the interpretation clause, sect. 1, preface. See, also, 3 Curt. 478, 479. (61) [The general provision on the sub- ject of the execution of wills throughout the American States is that the will of real estate must be in writing, and sub- scrib d by the testator, or acknowledged by him in the presence of at least two witnesses, who are to stibscribe their names as witnesses. The regulations in the sev- eral states differ in some unessential points ; but generally they have adopted the direc- tions given by the English statute of frauds. By the General Statutes of Mas- sachusetts (Genl. Sts. u. 92, a. 6), wills, both of real and personal estate, are re- quired to be in writing and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed in his presence by three or more competent witnesses. If the wit- nesses are competent at the time of attest- ing the execution of the will, their subse- quent incompetency, from whatever cause it arises, shall not prevent the probate and allowance of the will, if it is otherwise sat- isfactorily proved. By the Eevised Stat- utes of New York (vol. 2, p. 63, §§ 40, 41, and Blatchf. Genl. Sts'. N. Y. p. 960, vol. 3, p. 144 {5th ed.), 1859), every last will and testament of real or personal property, or both, must be executed and attested in the following manner : 1. It shall be sub- scribed by the testator at the end of the will. 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be ac- knowledged by him to have been so made, to each of the attesting witnesses. 3. The testator, at the time of making such sub- scription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testa- ment. 4. There shall be at least two at- testing witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator. The Michigan statute seems to be copied from that of New York. See Cooley's Compiled Laws of Mich. vol. 2, p. 864, ed. 1857. Thi"ee witnesses, as in the statute of frauds, are required in Vermont, New Hampshire, Maine, Massachusetts, Ehode Island, Con- necticut, Maryland, Georgia, Alabama, Mississippi, New Jersey, South Carolina, and Wisconsin. Two witnesses only are requisite in New York, Delaware, Vir- ginia, Ohio, Illinois, Indiana, Iowa, Mich- igan, Missouri, Tennessee, North Carolina, Arkansas, Kentucky, and New Jersey. In re McElwaine, 3 Green (N. J.), 499 ; In re Boyens, 23 Iowa, 354. In Massachusetts, a will of real or personal estate made and executed in conformity with the law exist- ing at the time of the execution thereof, shall be effectual to pass such estate ; and a will made out of Massachusetts, which might be proved and allowed according to the laws of the state or country in which it was made, may be proved, allowed, and recorded in Massachusetts, and shall there- upon have the same effect as if it had been executed according to the laws of that CH. n.] OF THE FORM, ETC. OF MAKING A WILL. 93 Sect. 11. " Provided always, and be it further enacted, that any soldier being in active military service, (c) or any exceptions mariner or seaman being at sea, (^d') may dispose of his ^j soldiers personal estate as he might have done before the making a""! ™"'- o ners : of this act." The construction of this section will be considered hereafter, (e) together with the subject of nuncupative wills. Sect. 13. " Every will executed in manner heretofore puWication T 1 Ti . . . . notrequi- required, shall be valid without any other publication site. thereof." (eO state. Genl. Sts. c. 92, §§ 7, 8. In a holograph will, in some of the states, as Virginia, North Carolina, Kentucky, Ten- nessee, and Arkansas, no subscribing wit- nesses are required, but the handwriting of the testator must be proved ; and in Arkansas, North Carolina, and Tennessee, by three witnesses. The will must also come from unsuspected custody, or be found among the testator's papers, in order to comply with the statutory provisions of the two latter states. The statute of Ten- nessee guards the case of such a will with very specific provisions. Crutcher v. Crutcher, II Humph. 377; Tate v. Tate, 11 Humph. 465. The laws of Mississippi (How. & Hutch. Laws, p. 386, ch. 36, § 2, ed. 1840) require three witnesses to a will of real, and one to a will of personal es- tate, unless the will is a holograph. See Kirk V. The State, 13 S. & M. 406. la North Carolina (1 Eev. Laws, N. C. pp. 619, 620, c. 122, § 1), however, it has been held, that where a will devising real estate appears to have been attested by two witnesses, and the certificate of pro- bate states that it was proved by one, it will be intended that it was legally proved by him. University v. Blount, 2 Tayl. 12. In Tennessee, a will of personal property may be proved by one subscrib- ing witness, where there is no contest as to its validity; iind it being admitted that such will was so proven, the court will infer that such witness was a sub- scribing witness. Rogers v. Winton, 2 Humph. 178. So in Massachftsetts, where there is no objection made or to be made. by any person interested, to the probate of a will, whether of real or personal estate, probate may be granted upon the testimony of one only of the subscribing witnesses. Genl. Sts. c. 92, § 20. So in Vermont. Dean v. Dean, 27 Vt. 746, 748 ; Comp. Sts. Vt. p. 329, § 18. The witnesses are generally required to sign in the testator's presence ; but in Arkan- sas, Ark. Kev. Sts. 1837, v;. 157, §§ 4, 5 ; in New Tork, Eev. Sts. vol. 2, p. 124 (3d ed.), and in New Jersey, Rev. Sts. 1846, tit. 22, c. 3, § 2, this is dispensed with, and the doctrine of constructive presence is thereby wisely rejected. 4 Kent, 515. In Pennsj'lvania, it is not necessary that a will of real estate should be subscribed by witnesses, nor that the proof of the will should be made by those who sub- scribed as witnesses, nor that all the sub- scribing witnesses should prove the will. Hight a. "Wilson, 1 Dal. 94; Arndt v. Arndt, 1 Serg. & R. 256 ; Rohrer v. Stehman, 1 Watts, 463 ; Gray J. Chase v. Kittredge, 11 Allen, 62. It is only neces- sary that the will should be reduced to writing in pursuance of the testator's di- rections or instructions during his life- time, and these facts proved by two wit- nesses ; formal publication and attestation by subscribing witnesses are unnecessary. Ginder v. Farnum, 10 Penn. St. 100 ; Rossetter v. Simmons, 6 Serg. & E. 452 ; Lewis V. Lewis, 6 Serg. & R. 489.] (c) See^osi, 116. {d) Seepost, 117, 118. (e) Seepost, 116 et seq. (el) [Post, 89, note (q).] 94 FORM OF MAKING A WILL (BEFORE JAN. 1838). [PT. I. BK. II. The stat- ute does not extend to wills made be- fore Jan. 1, 1838. It must, however, be observed, that this statute does not ex- tend to any will made before January 1, 1838. (/ ) With respect, therefore, to wills made at an earlier date, and those within the exception as to soldiers and mariners, it is necessary to consider the law as established at the time of the passing of the act. It may here be remarked, that where a will without date (/^) Presurap- ^^ properly executed according to the former law, but thTtSi'" ^°^ executed pursuant to the new act, and the case is when a will altogether * bare of circumstances which can afford the without . . . 1 1 •!! date was court any mformation as to the time when the will was made, it has been held that the presumption is that it was made before the act came into operation ; inasmuch as every one is presumed to know the law, and the court, in the absence of evidence tending to a contrary conclusion, is bound to presume that the will was executed according to the law as it stood at the time the instrument was written. (^) l. As to wills made before Jan. 1,1838: signature or seal by the testator not neces- sary: SECTION I. Of the Signature hy the Testator. The signature or seal of the testator is not necessary for the validity of a will of pei-sonalty, (A) if made before January 1, 1838, whether the instrument be in the handwriting of the testator, or in another man's hand. If it be in the testator's own writing, though it has (f) But every will reexecuted or re- published or revived by any codicil, is, for the purposes of the act, to be deemed to have been made at the time the same was so reexecuted, republished, or revived. Sect. 34. [Whether the legality of the ex- ecution of a will is to be determined by the law as it stood when the will was exe- cuted, or at the death of the testator, see Mullen V. McKelvy, 5 Watts, 399 ; Crofton u. Ilsley, 4 Greenl. 134; Sutton u. Che- nault, 18 Geo. 1. As to the effect upon the operation of a will, of a law respect- ing wills passed after the making of the will in question and before the death of the testator, see Brewster v. McCall, 15 Conn. 274; Carroll u. Carroll, 16 How. [68] (U. S.) 275, 281 ; Van Kleeck v. Dutch Church, 20 Wend. 499 ; Hoffman v. Hoff- man, 26 Ala. 535 ; Green v. Dikeman, 18 Barb. 535 ; Gable v. Daub, 40 Penn. St. 217 ; ante, 6, note [d)\ (/I) [If a will has no date, or has a wrong date, it may be established or cor- rected by parol evidence of the real time when it was executed. Wright v. Wright, 5 Ind.389; Deakins v. HoUis, 7 Gill & J. 311.] (g) Pechell u. Jenkinson, 2 Curt. 273. As to the presumption in the case of alter- ations appearing on the face of a will, see ■po&t, pt. I. bk. II. ch. III. § I. (A) Godolph. pt. 1, c. 1, s. 7; Salmon V. Hays, 4 Hagg. 382. CH. II. § I.J OF THE SIGNATURE BY THE TESTATOR. 95 neither his name or seal to it, it is good, provided sufficient proof can be had that it is his handwritiner. (i) The pre- sumption 01 Jaw indeed (upon the principle hereafter to tion of law , J* T ^7N . -n 1 • • against a be mentioned, (_«_) respecting a will having an attestation wUi not * clause, and no witnesses' names subscribed) is against ^'^°^ every testamentary paper not actually executed by the testator ; against every one not so executed, as it is to be inferred, on the face of the paper, that the testator meant to execute it. Q) But if the paper be complete in all other respects, that presumption is slight and feeble, and one comparatively easy to be repelled ; as by its being satisfactorily shown that the paper's non-execution may be justly ascribed to some other cause than any abandonment of the intentions therein expressed, (wt) Thus the pre- j^,,^ ^.^ sumption may be rebutted (as in the case of an attestation butted : clause without witnesses) by showing that the execution was pre- vented by the act of God ; (w) or that the deceased regarded it as a will, and meant it to operate in its present state, and without doing any further act in order to give it a testamentary effect, (o) (t) Godolph. pt. 1, c. 21, s. 2; Worlich V. PoUet, and other cases cited in Limbery V. Mason, Com. Eep. 452 ; 2 Bl. Com. 501 ; Byrnes v. Clarkson, 1 Phillim. 22 ; [Leath- ers V. Greenacre, 53 Maine, 561.] In the Goods of Cesser, 1 Robert. 633, in which last case the name of the testator appeared in no part of the writing, but administra- tion cujn testamento annexe was granted, on proof of handwriting and custody, and on a proxy of consent. But it should seem that proof of handwriting alone is not sufficient to set up a disputed instru- ment, without some concomitant circum- stance, as the place of finding, or the like. See Machin v. Grindon, 2 Cas. temp. Lee, 406 ; Constable v. Steibel, 1 Hagg. 60 ; Saph V. Atkinson, 1 Add. 213 ; Crisp v. Walpole, 2 Hagg. 531 ; Rutherford v. Maule, 4 Hagg. 213 ; Bussell v. Marriott, I Curt. 9 ; Wood v. Goodlake, 2 Curt. 82, 176, 180 ; Hitchings v. Wood, 2 Moore P. C. 335, 443, 444 ; post, pt. I. bk. iv. ch. HI. § T. (k) Post, 85. (I) Scottw. Rhodes, 1 Phillim. 19; Mon- tefiore o. Montefiore, 2 Add. 357, 358 ; Bragg V. Dyer, 3 Hagg. 207 ; Abbott u. Peters, 4 Hagg. 380 ; [Murry v. Murry, 6 Watts, 353 ; Ex parte Henry, 24 Ala. 638 ; Waller v. Waller, 1 Grattan, 454 ; Tilgh- man v. Stuart, 4 Harr. & J. 156; Rochelle V. Rochelle, 10 Leigh, 125 ; Watts «. New York, 4 Wend. 168.] "A disposition of personal property in the handwriting of the deceased requires no formality to give it effect if none is intended by the writer." By Sir John Nicholl, in Forbes v. Gordon, 3 Phillim. 628. See, also, the judgment of Lord Eldon C. in Coles o. Trecothick, 9 Ves. 249. (m) Montefiore v. Montefiore, 2 Add. 357, 358; [Hill ... Bell, Phill. (N. Car.) Law, 122.] (n) Scott w Rhodes, 1 Phillim. 20; Mas- terman v. Maberly, 2 Hagg. 247. In a late case it was held that supervening insanity is sufficient to account for the non-execu- tion. Hoby V. Hoby, 1 Hagg. 146. See also Fulleck v. Allinson, 3 Hagg. 527 ; [Gaskins v. Gaskins, 3 Ired. 158; Rohrer V. Ste>man, 1 Watts, 442.] (o) Roose V. Mouldsdale, 1 Add. 131. [See Sarah Miles's Will, 4 Dana, 1.] [69] 96 FOEM OF MAKING A WILL (BEFORE JAN. 1838). [PT. I. BK. I. Again, if the will be read to and approved by the deceased, but he is prevented from executing it by the violence of those who are interested against its provisions, the law will consider the will as executed, although never actually signed, (p) Refer- ences to modern decisions, in which testamentary effect has been given to * finished papers, unexecuted, will be found in the note below. (c[) It should here be observed, that the want of regular execution Case of a may lead to a presumption of a much stronger kind hig of'Te' against the will, where it purports to dispose, not only perioral °^ personal but of real property (as to which it clearly estate; must be inefficient) ; (r) particularly if the disposition be blended. Thus where the unexecuted will creates a common fund of real and personal estate, the presumption is of the strong- est kind, and can only be repelled by very clear evidence, (s) where the ^^d where the disposition of the real and personal es- dispositioa . ,11 1 T 11 is blended, tates IS SO blended that the realty and personalty are dependent on each other (as where the testator gives real prop- erty to A. because he has given personal property to B.), the court will not grant probate ; for it would defeat the intention, and be injustice, to give effect to the one disposition unless it could be given to the other : though where it is clearly shown that the testator has finally made up his mind, and that the execution of the instrument is prevented by the act of God, and the devise of the realty is perfectly independent of the disposition of the per- sonalty, the court will give effect to the unexecuted will, in order to carry the deceased's intention into effect pro tanto. (i) y?here the Though the instrument be written in another man's isnotinthe hand, and has never been signed by the testator, yet in (p) L'Huille V. "Wood, 2 Cas. temp. Lee, 1 Add. 383 ; Masterman v. Maberly, 2 22. So probate was granted of an unex- Hagg. 235 ; In the Goods of Lamb, 4 ecuted will, the intention of the deceased Notes of Cas. 561. being clear, and the due execution of the (r) In the Goods of Heme, 1 Hagg. 226. instrument having been prevented by sud- (s) Douglas v. Smith, 3 Knapp, 1 ; Els- den incapacity superinduced by the violent den V. Elsden, 4 Hagg. 183; Gillow v. conduct of his wife, who was interested in Bourne, 4 Hagg. 291 ; post, pt. i. bk. ii. thwarting that intention. Lamkinw. Babb, ch. iii. §ii. See, also, Reynolds t). White, 1 Cas. temp. Lee, 1. 2 Cas. temp. Lee, 214 ; Reeves v. Glover, (?) Scottw. Rhodes, iPhillim. 12; Read 2 Cas. temp. Lee, 359. V. Phillips, 2 Phillim. 122 ; Thomas v. {t} Tudor v. Tudor, 4 Hagg. 199, note Wall, 3 Phillim. 23; Friswell v. Moore, (a). [See Guthrie v. Owen, 2 Humph. 3 Phillim. 135 ; Warburton v. Burrows, 202.] [70] CH. II. § I.] OF THE SIGNATURE BY THE TESTATOR. 97 many cases it will operate as a good testament of per- testator's , ^ writing. sonal estate, (m) Thus if a person gives instructions for a will, and dies before the instrument can be formally executed, the instrue- Instmc- tions, * though neither reduced into writing in his pres- ^iu. ence, nor ever read over to him, will operate as fully as a will it- self, (a;) And even unfinished instructions may be established, («/) under the circumstances which will be presently pointed out, when the testamentary effect of unfinished instruments, generally, is considered. Nor is it necessary that the instructions should be given to the drawer by the deceased ; for they may be conveyed to him through the medium of a third person, although the court, in such a case, would be doubly on its guard. (2) It is, however, essential that the instructions should be reduced into writing in the lifetime of the deceased; otherwise, it would be a mere nuncupative will, and then of no effect under the statute of frauds.(a) Thus in the case of Nathan v. Morse,(6) the tes- tator died in the act of dictating instructions to his solicitor, in the presence of a third person, and had proceeded as far as the clause appointing an executor, when he was attacked by the seizure which terminated his existence. Immediately after his death, the third person, on hearing the instructions read over to him, observed to the solicitor that he had omitted a legacy which * the deceased had directed ; upon which the solicitor, recollecting the fact, imme- (u) Wentw. c. 1, p. 15, 14th ed. Gill, 44, where it was held that a paper (x) Carey 0. Askew, 2 Bro. C. C. 58 ; intended as instructions, or as a memorau- S. C. 1 Cox, 231 ; Goodman v. Goodman, dum, to enable a scrivener to make a will, 2 Cas. temp. Lee, 109 j Eobinson v. Cham- if the formal act be left unfinished, may be berlayne, 2 Cas. temp. Lee, 129 ; Bowes v. made a will by any act which the law pro- pas, 2 Cas. temp. Lee, 358 ; Green 0. nounces to be the act of God, provided Skipworth, 1 Phillim. 59 ; Wood v. Wood, that up to the time of that act the same 1 Phillim. 370, and the cases there cited intent continued. See post, 75, note (9^)] by Sir John NichoU ; Huntington v. Hun- As to copies of instructions, see Barrow v. tington, 2 Phillim. 213 ; Langmead v. Barrow, 2 Cas. temp. Lee, 335. Lewis, 2 Phillim. 326 ; Sikes ^. Snaith, (y) Devereux v. Bullock, 1 Phillim. 72 ; 2 Phillim. 355 ; Lewis v. Lewis, 3 Phillim. Musto v. Sutcliffe, 3 Phillim. 105 ; Nathan 112; Allen v. Manning, 2 Add. 490, and v. Morse, 3 Phillim. 529; Castle v. Torre, see note (a) to that case, 2 Add. 494; In 2 Moore P. C. C. 133, 156. the Goods of Bathgate, 1 Hagg. 67 ; Bur- (z) Lewis v. Lewis, 3 Phillim. 109 ; and rows V. Burrows, 1 Hagg. 109; In the see Maclae v. Ewing, 1 Hagg. 317. Goods of Taylor, 1 Hagg. 641; Master- (a) Sikes w. Snaith, 2 Phillim. 355. See, man v. Maberly, 2 Hagg. 247 ; Viner Abr. also, Rockell v. Youde, 3 Phillim. 141. Devise, A. 2, 4 ; Castle v. Torre, 2 Moore (6) 3 Phillim. 529. P. C. C. 133. [See Boofter v. Rogers, 9 VOL I. 7 [71] [72] 98 FORM OF MAKING A WILL (BEFORE JAN. 1888). [PT. I. BK. II. diately added the legacy. Sir John NichoU said he had no doubt in pronouncing the instructions to be the will of the deceased as far as the appointment of the executor ; but that as the last clause was not committed to writing during the lifetime of the testator, it could not be established, and must be struck out. These principles must, a fortiori, apply to holograph or written instructions for a will or codicil, where the intentions expressed in such instructions are continued and adhered to, but the execution of the formal instrument prevented by the sudden death of the writer, (c) However, a mere paper of instructions, even though holograph, and signed, cannot be sustained as testamentary, if there was no sudden death or other act of God to prevent the regular execution of the will or codicil by the deceased. (cZ) In a case where the deceased, having an intention to alter his will, sent for one of his executors, and desired him to draw a cod- icil, and afterwards on the draft being shown to him, disapproved of several clauses in it, declaring that it was not drawn agreeably to his instructions, and refused to sign it, the judge (Sir G. Lee) was clearly of opinion that he could not pronounce for part of the legacies contained in it, and reject those clauses which the de- ceased objected to ; for there might be other parts which he dis- liked, besides those he particularly mentioned, (e) If a testament be found in the testator's chest, or safely kept Testament ^"^°°S Other writings, which testament is neither written found by the testator nor by him subscribed, but altogether tator's mu- of another man's hand, this writing shall not prevail as niments. ^j^^ ^^^ ^j|j ^^^ testament of the deceased, unless it be * proved that the same was written by the commandment of the testator ; (/) or unless (it may be added) other satisfactory proof be given that the testator had recognized it distinctly as his will. Hitherto the subject has been confined to cases of testamentary Distinction instruments, which by reason of their being unexecuted "letween r- ' imper- etween an ^^ unattested, when the testator appeared, on the face of (c) 2 Moore P. C. C. 157. of Bosanquet J. in 2 Moore P. C. C. 154, \d) Munro v. Coutts, 1 Dow P. C. 437. 155. See, also, Dingle ti. Dingle, 4 Hagg. 388 ; (e) Machinw. Grindon, 2 Cas. temp. Lee, and the observations of Sir H. Jenner, in 406. Torre v. Castle, 1 Curt. 313, 338; and (/) Swinb. pt. 4, s. E8, pi. 10. [73] CH. I. § I.] OF THE SIGNATUBE BY THE TESTATOR. 99 them, to contemplate a signature or attestation, may in feet " and some degree be considered as imperfect. But the term c'uted "*" "imperfect," as applied to a testamentary paper, is care- testamen- fuUy to be distinguished from the word "unexecuted." Not every "imperfect" paper is "unexecuted;" nor is every " unexecuted " paper " imperfect ; " except only in a certain sense of that term, (pr) For example, a testamentary paper may be finished and complete, looking to the body of the instrument, as purporting to dispose of the testator's whole property, and so on ; still, however, if unexecuted, as, for instance, by wanting the de- ceased's signature, it is in a certain sense of the word, though in a certain sense of the word only, an imperfect paper. But the word " imperfect," when applied technically to instruments of this nature, means that the document is, '>upon the face of it, mani- festly in progress only, and unfinished and incomplete as to the body of the instrument. (K) And where a paper is imperfect in this sense of the word, not only, as in cases of unexecuted papers, must its being unfinished be shown to have been ?"'« as to iiDDBrfect caused by the act of God, or to be justly ascribable to papers. some reason other than any abandonment of intention by the testator, but it must also be clearly proved by the party setting up the instrument, upon a just view of all the facts and circum- stances of the case, that the deceased had come to a final resolu- tion in respect to it, as far as it goes, (i) Moreover, the presump- tion of law against such an instrument * instead of being slight, as in the case of a merely unexecuted paper, is very strong and hard to be repelled. (Jc) When there is a mere want of execu- (g) Montefiore v. Montefiore, 2 Add. by strong extrinsic circumstances. In 357. other cases it is so nearly perfect — it has (h) Montefiore v. Montefiore, 2 Add. on the face of it such strong indications 357. of testamentary intention, that slight cir- (i) Montefiore v. Montefiore, 2 Add. stances are sufficient to outweigh the pre- 358. [See Waller v. Waller, 1 Grattan, sumption against it. Forbes v. Gordon, 454 ; Adam.s v. Field, 21 Vt. 456 ; Pat- 3 Phillim. 628. [See Robeson v. Kea, 4 terson v. English, 71 Penn. St. 454 ; Clag- Dev. 301 ; Herrington v. Bradford, Walker, ett V. Hawkins, 11 Md. 381.] 520 ; Tucker v. Calvert, 6 Call, 90; Jacks {k) 2 Add. 358 ; Eeay v. Cowcher, 2 v. Henderson, 1 Desaus. 554 ; Jackson v. Hagg. 255. The presumption varies in Jackson, 6 Dana, 257 ; Brown v. Shand, strength according to the state of matur- 1 McCord, 409 ; Allison v. Allison, 4 ity at which the instrument has arrived. Hawks, 141 ; Rohrer v. Stehman, 1 Watts, 4 Hagg. 298. In some instances it is so 442 ; Wheeler !'. Durant, 3 Rich. Eq. 452 ; completely a mere memorandum that Symmes v, Arnold, 10 Geo. 506 ; Means proof of intention cannot be made but v. Means, 5 Strobh. 167; Eagsdale v. [74] 100 FORM OF MAKING A WILL (BEFORE JAN. 1838). [PT. I. BK. 11. tion in a paper which is complete in other respects, the court will presume the testator's intention to be, expressed in such a paper, on its being satisfactorily shown that the non-execution did not arise from abandonment of these intentions so expressed. (0 But where a paper is incomplete in the body of it, the court must be completely satisfied by proof : 1st, That the deceased had finally decided to make the disposition of his property expressed in the imperfect paper ; (l^) 2dly, That he never abandoned that intention, and was only prevented by the act of God from pro- ceeding to the completion of his will, (m) The principal modern cases, in which the principles above expressed, with regard to im- perfect testamentary documents, have been laid down and acted upon, will be found collected in the note below, (n) lock, 1 Phillim. 60; Mnsto v. Suteliffe, 3 Phillim. 104 ; Bayle n. Mayne, 3 Phillim. 504 ; Forbes v. Gordon, 3 Phillim. 614 ; Eoose V. Moulsdale, 1 Add. 129 ; Lord John Thynne v. Stanhope, 1 Add. 52; Antrobus v. Nepean, 1 Add. 399 ; Monte- fiore V. Montefiore, 2 Add. 354 ; Jameson „. Cooke, I Hagg. 82 ; Cundy v. Medley, 1 Hagg. 140 ; 1 Hagg. 661 ; 1 Hagg. 671 ; In the Goods of Heme, 1 Hagg. 222 ; In the Goods of Broderip, 1 Hagg. 385 ; In the Goods of "Wenlock, 1 Hagg. 551 ; In the Goods of Eobinson, 1 Hagg. 643; Eeay v. Cowcher, 2 Hagg. 249 ; Theak- ston V. Marson, 4 Hagg. 298 ; Castle v. Torre, 2 Moore P. C. C. 133. [See Barnes v. Syester, 14 Md. 507 ; Showers V. Showers, 27 Penn. St. 485; Ruoff's Appeal, 26 Penn. St. 219; Boofter v. Rogers, 9 Gill, 44; Aurand v. Wilt, 9 Barr, 54 ; Parkison v. Parkison, 12 Sm. & M. 673 ; Dnnlop v. Dunlop, 10 Watts, 153; Strieker v. Groves, 5 Whart. 386, 395 ; Cavett's Appeal, 8 Watts & S. 21 ; Frierson v. Beale, 7 Geo. 438 ; Offut v. Offut, 3 B. Mon. 162 ; Mason v. Dunham, 1 Munf. 456 ; Gaskins v. Gaskins, 3 Ired. 158 ; Public Administrator v. Watts, 1 Paige, 347; S. C. 4 Wend. 168; Rohrer V. Stehman, 1 Watts, 442 ; Hock v. Hock, 6 Serg. & E. 47 ; Eyster v. Young, 3 Yeates, 511. If it is manifest that the ' testator intended that the paper as it stood should operate as his will, it is Booker, 2 Slrobh. Eq. 348; Robinson v. Schly, 6 Geo. 515; Wikoff 's Appeal, 15 Penn. St. 281-288 ; Witherspoon v. With- erspoon, 2 McCord, 520.] (1) 2 Add. 358. (P) [See Rochelle v. Eochelle, 10 Leigh, 125; Marry v. Murry, 6 Watts, 353; Eobeson v. Kea, 4 Der. Law, 301.] (m) Devereux v. Bullock, 1 Phillim. 73. It is now clearly settled, said Sir John NiehoU, in Johnston v, Johnston, 1 Phillim. 495, that in respect to an unfin- ished paper, though followed by sudden death, the interval must be accounted for ; and it must be shoum that the testator ad- hered to the intention, but was prevented from finishing it. Castle v. Torre, 2 Moore P. C. C. 156, per Bosanquet J. ac- cord. ; [Hocker v. Hocker, 4 Grattan, 377 ; Selden v. Coalter, 2 Virg. Cas. 553 ; Sharp V. Sharp, 2 Leigh, 249 ; Tilghman o. Stuart, 4 Harr. & J. 156; Public Admin- istrator V. Watts, 1 Paige, 347 ; S. C. 4 Wend. 168; Morsell v. Ogden, 24 Md. 377 ; Plater v. Groome, 3 Md. 134.] See FuUeck ii. AUinEon, 3 Hagg. 527 ; ante, 43, as to the validity of a will as an un- executed paper, in a case where insanity supervenes between the preparation and the execution. (b) Brown v. Hallett, 2 Cas. temp. Lee, 418; Griffin v. Griffin, 4 Ves. 197, note to Matthews v. Warner; Sandford v. Vaugfaan, 1 Phillim. 48 ; Devereux v. Bui- CH. n. § I.] OF THE SIGNATURE BY THE TESTATOR. 101 * It should here be remarked, that although it is demonstrated by the foregoing doctrines that when an unfinished draft EfEect of is propounded, it must be shown that the deceased was ofimpei-" prevented by accident, necessity, or the act of God, from *^'^' p^p^""" completing it, yet a man certainly may (in cases not within the operation of the new wills act), in the last moments of life, so recognize an imperfect testamentary paper, written at the dis- tance of any number of years, as to give it effect and validity, with- out formal execution, (o) The effect of unfinished testamentary papers, with Effect of regard to the total or partial revocation of prior existing unfinished p _ _ ^ '^ ° papers as wills, will be considered more conveniently hereafter, to revoking _ . (. .11 n existing when the sub3ect of revocation of wills, generally, oc- wills. curs. (^) With respect to the signature of a will, made (or reexecuted or republished) (g') on or after the first day of Jan- 2. Signa uary, 1838, it is required by the stat. 1 Vict. c. 26, s. 9, that it " shall be signed at the foot or end (5^) thereof by the testator, or by some other person in his presence and by his direction." (g^) ture of wills made after Jan. 1, 1838: 1 Vict. c. 26, s. 9 : properly admitted to probate, although there appear to be blank bequests in it. The existence of the blanks will not de- feat the will, although the bequests being in blank would fail for uncertainty ; the other bequests being clearly expressed and being in no manner connected with or dependent upon those in blank would have effect. Harris v. Pue, 39 Md. 536 ; Tilghman v. Stewart, 4 Harr. & J. 173; Patterson v. English, 71 Penn. St. 454.] (0) 2 Moore P. C. C. 156. See infra, pt. I. bk. II. ch. IV. § I. ip) See post, pt. I. bk. 11. ch. iii. § 11. {q) See supra, 67, note (/). (}') [Post, 77, and notes (x^) and (y).] {q^} [See McGee 0. Porter, 14 Missou. 611. The signature of a will at the re- quest of the testator by a third person as follows, "E. N. for E. D. at his request," is a, sufficient execution in this respect. Vernon • -11 1 • r 1 • 1 shouldsign une" 4tn, loda. iSeing very ill, the vicar of the parish, his own by the deceased's request, signed the will for him, not in tS'of 'the the testator's name, but his own ; the attestation clause *««'«'"■■■ being as follows, " Signed on behalf of the testator by me, A. B., vicar of Warfield, Berks, which signature was made for and ac- knowledged by the testator, in the presence of us, who, in the presence of the testator, have hereunto set our hands and seals. C. D., E. F." Per curiam (Sir H. Jenner Fust): "The act allows the will to be signed by another person for the testator. Here, this gentleman, by the testator's request, signed the will for him, not in the testator's name, but using his own name. The act does not say that the testator's name must be used. I think this is sufficient under the act." Probate granted. Where it is proved that the testator duly acknowl- ^e'^fo^" edged a signature to the attesting witnesses, it has been ^"°j'^''^' considered sufficient, primd facie, without proving that the testator .1 • , . . , . , T . . , . , of a signa- the Signature is in his handwriting, or that it was made ture suf- " by some other person in his presence and by his direc- out show- " tion." CO mgjiho ^ ■' wrote it. (h) Sugden's Essay on the Law of Wills, p. 38. (i) Smith V. Harris, 1 Robert. 262. (i'l) [Under the statute of Missouri, the person who at the request of the testator signs the testator's name, must himself attest to it, and state that fact, or the will is void. McGee v. Porter, 14 Missou. 611.] (k) In the Goods of Clark, Prerog. 20 Feb. 1839 ; 2 Curt. 329. [Where the tes- tator directed a person to sign the will for him, which that person did by writing at the foot, " this will was read and approved by C. P. B., by C. C. in the presence of, &c.," and then followed the signatures of the witnesses, the vtHI was held good. Re Blair, 6 Notes of Cas. 528.] (I) Gaze V. Gaze, 3 Curt. 456, per Sir H. Jenner Fust. [83] 110 OF THE FOEM, ETC. OF MAKING A WILL. [PT. I. BK. II. It is not necessary that all the sheets or papers of which a will consists should be signed by the testator : or that signature _ , t, • ^ -c where the they should all be connected together : It is enough it sistsof sev- they were in the same room where the execution took erai sheets: ^y^^^. ^^^ j^ J^^gt ^,6 presumed, pn'wic? fade, that they were so. (w) So where a duly executed will, followed by several additions and alterations, at the end of which appeared the signature or of sev- ' . . -^ ^ . i i i t_ erai clauses of the testator and attesting witnesses, it was held that several the signature and attestation clause applied to all the times. 5|f ^jgpQgitiye clauses written above them, although these had been apparently written at difEerent times. («) SECTION II. Of the Attestation of Wills and Codicils of Personal Estate. It is proposed to consider this subject, 1st, with reference ,to wills and codicils made before January 1st, 1838, and to which consequently the new statute of wills does not extend; 2dly, with reference to wills and codicils made (or reexecuted and re- published) (o) on or after that date, and consequently within the operation of that statute. First, As to wills and codicils made before January 1st, 1838. 1. As to Wills and codicils of personal estate need not any witness wills made <.,. ,,.. ,. [^ . ,t before Jan. 01 their publication : (j?) custody is a sufficient publica- No wit- tion of them : (g-) although it is safer and more prudent, "hfeLecu- ^"'^ leaves less in the breast of the ecclesiastical judge, tionorpub- jf tiigy jjg published in the presence of witnesses, (r) necessary: Indeed, Some of the older authorities have been supposed to lay it down, that such a publication before two sufficient wit- (m) Gregory v. The Queen's Proctor, (p) See Allan v. Hill, Gilb. Eep. 260 ; 4 Notes of Gas. 620, 639 ; post, 96, 97 ; Wright v. Walthoe, and other cases cited Marsh v. Marsh, 1 Sw. & Tr. 528 ; [Gin- in Lirabery .,. Mason, Com. Rep. 452 ; der 0. Farnum, 10 Barr, 98 ; Martin v. Cunningham v. Ross, 2 Cas. temp. Lee, Hamblin, 4 Strobh. 188 ; Ela v. Edwards, 478. 16 Gray, 91 ; Tonnele v. Hall, 4 Comst. (q) Miller v. Brown, 2 Hagg. 211. As 140 ; Wikoff's Appeal, 15 Penn. St. 281.] to the effect of proof of handwriting alone, (n) In the Goods of Cattrall, 4 Sw. & see ante, 68, note {«), and post, pt. i. Tr. 419. bk. IV. ch. iii. § v. (o) See ante, 67, note (/). (r) 2 Bl. Com. 502. [84] CH. n. § II.] OF THE ATTESTATION OF WILLS. Ill nesses is absolutely necessary, (s) But on a closer inspection of the passages cited, as containing such a doctrine, it should seem that in some, (€) such publication is only recommended ; while in others (m) it is meant, not that the will must be proved by two witnesses present at its publication, but that two witnesses are necessary for the due proof of a testament, as they are for the proof of any other fact by the * rules of the civil law. (x) Still less are any subscribing witnesses necessary for the giving full force and effect to a mere testament. (^) But if there be an attestation clause at the foot of a testa- mentary paper, the natural inference is, that the testator when there meant to execute it in the presence of witnesses, and tation that it was incomplete in his apprehension of it, till that no'J^ft'ness^ operation was performed : and consequently the presump- ^^i "'^ ^ ^ ' 1 J r J. presump- tion of law is against a testamentary paper, with an tionis 1 1 ■! T 1 • N rrii • against the attestation clause, not subscribed by witnesses, (a) Ihis will. presumption is held to be strengthened, when the instrument pur- ports to dispose not only of personal, but also of real property, (a) It is true, that in Cobbold v. Baas, (6) the court of delegates was of opinion that a will, both of real and personal property, with an attestation clause unexecuted by witnesses, was, red- dendo singula singulis, a perfect disposition of personal estate, and therefore a good will. But this decision may be considered as overruled by those of Mathews v. Warner (c) and Walker v. Walker, (c^) The presumption thus raised, however, is, generally speaking, slight, and may be repelled by slight circumstances ; (e) yet slight as it is, it must be rebutted by some extrinsic evidence, either (s) 1 Koberts on Wills, 183. Keeve, Prerog. H. T. 1842 ; 1 Notes of Cas. (t) Bracton, lib. 2, f. 61 ; Tleta, lib. 2, 310. f. 125. (b) 4 Ves. 200, in notis. (u) Swinb. pt. 1, s. 3, pi. 13 ; Godolph. (c) 4 Ves. 186; 5 Ves. 23. pt. 1, c. 21, s. 1. (d) 1 Meriv. 503. See the note to (x) See post, pt. i. bk. iv. eh. m. § v. Beaty v. Beaty, 1 Add. 159, 160. See, as to the necessary proof of a will. also, Jekyll v. Jekyll, 1 Cas. temp. Lee, 419. {y) Brett v. Brett, 3 Add. 224. (e) Stewart v. Stewart, 2 Moore P. C. (z) Scott V. Ehodes, 1 Phillim. 19 ; Har- C. 193 ; Bateman v. Pennington, 3 Moore ris V. Bedford, 2 Phillim. 177 ; Beaty v. P. C. C. 223 ; Harris «. Bedford, 2 Phil- Beaty, 1 Add. 154 ; Mathews v. Warner, 4 lim. 178 ; Thomas v. Wall, 3 Phillim. 23 ; Ves. 186 ; 5 Ves. 23 ; Walker v. Walker, 1 Buckle v. Buckle, 3 Phillim. 323 ; In the Meriv. 503 ; and see the note of the learned Goods of Jerram, 1 Hagg. 550 ; Doker v. reporter, in 1 Add. 159, 160. Goff, 2 Add. 42. In the last case there (a) See ante, 70 ; In the Goods of was no regular attestation clause, but only [85] 112 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. that the testator was prevented from finishing * the instrument but this by the act of God, or that he intended it to operate in its tionT'"' present form. (/) In the case of Buckle v. Buckle, (^r) slight, and ^j^g f^f,^ gf ^i^ testamentary paper being found sealed may he re- . , j.i. a. peiied hjr up at the death of the testator, with an appearance that dence. he did not intend to open it again, was held sufficient to rebut the presumption, by showing that it was his intention it should operate in its present form. So a recognition of it as a will by the testator will suffice. (^.) By the different acts of parliament creating stock in the public Devise of funds and annuities attending thereon, it is provided thTpublic *^** ^"y person possessed of the stock may devise the funds. same by writing, attested hi/ two witnesses. But the result of several cases on these acts, which it will hereafter be necessary to notice, is, that a bequest of stock, whether attested by two witnesses or not (if made before January 1st, 1838), is effectual to pass the subject bequeathed to the legatee. (*') Secondly, As to the attestation of wills and codicils made on 2. As to or after the 1st of January, 1838. The stat. 1 Vict. c. made on' ^6, s. 9, enacts, that no will (or testament or codicil, or or after any other testamentary instrument) shall be valid unless 1838: the signature shall be " made or acknowledged by the tes- tator in the presence of two or more witnesses (i^) present at the the word " witnesses," which the court con- (ii) [As to the number of witnesses in bidered as raising an infinitely slighter pre- the American States, see ante, 67, note {h^). sumption. " It seems to have been generally oonsid- (/) Harris «. Bedford, 2 Phillim. 178; ered " as observed in Jarman Wills (3 Beaty v. Beaty, 1 Add. 158 ; In the Goods Eng. ed. pp. 104-106), " that this provi- of Hurrill, 1 Hagg. 252 ; In the Goods of sion not only qualifies persons who have Wenlock, 1 Hagg. 551 ; In the Goods of been rendered infamous by conviction for Thomas, 1 Hagg. 596; In the Goods of crime to be attesting witnesses (as it clearly Edmonds, 1 Hagg. 698 ; Bragge v. Dyer, does), but, that it even gives validity to the 3 Hagg. 207 ; Pett v. Hake, 3 Curt. 612. attesting act of an idiot or lunatic. This, (j) 3 Phillim. 323. however, seems very questionable. The (A) In the Goods of Jerram, 1 Hagg. signature, it will be observed, is required 550. See, also. In the Goods of Vanhagen, to be made or acknowledged by the testa- 1 Hagg. 478 ; In the Goods of Sparrow, tor in the presence of the witnesses ; which lb. 479, where there was an attestation would seem to imply that they should be clause in the plural number, and only one mentally conscious of the transaction, witness. according to the construction which was (t) Eipley v. Waterworth, 7 Ves. 440; given to the same word occurring in the Eranklinu. Bank of England, 1 Buss. 589; devise clause of the statute of frauds, post, pt. II. bk. III. ch. I. which required that the attesting witnessea [86] CH. II. § II.] OF THE ATTESTATION OF WILLS. 113 same time, and such witnesses shall attest (i^) and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." The statute of frauds required, with respect to a will of * lands, that it should be " attested and subscribed in the presence of the devisor, by three or four credible witnesses." (i^) the signa- ture must be made or acknowl- edged in the pres- ence of two or more wit- nesses pres- ent at one time, and should subscribe in the testator's ' pres- ence ; ' such requisition being held not to he satisfied in a case in which the testator fell into a state of insensibility; before the witnesses had subscribed their names to the memorandum of attestation." "Per- haps the point is not very likely to occur in practice ; for no testator would think of choosing an idiot or lunatic-as an attest- ing witness to his will, unless he were con- tent to have his own sanity called in ques- tion. And here it may be observed, that the enlarged license now given, in regard to the qualification of witnesses to wills, will not induce any prudent person to abate one jot of scrupulous anxiety, that the duty of attesting a will be confided to per- sons whose character, intelligence, and sta- tion in society, afford the strongest pre- sumption in favor of the fairness and proper -management of the transaction, and preclude all apprehension in purchas- ers and others, as to the facility with which the instrument could be supported in a court of justice, against any attempt to impeach it; and now that the requisite number of witnesses is reduced to two, it is the more easy, as well as important, that the selection should be governed by a re- gard to such considerations. A devise or bequest to an attesting witness still, as un- der the old law, does not affect the validity of the entire will, but merely invalidates the gift to the witness, whose competency the legislature has established, by destroy- ing his interest."] (i^) [As to the meaning involved in the word "attestation,"' see Swift v. Wiley, 1 B. Mon. 117; Griffith v. Griffith, 5 B. Mou. 511 ; Gerrish v. Nason, 22 Maine, 438 ; Sweet v. Boardman, 1 Mass. 258 ; Neil V. Neil, 1 Leigh, 6. In Missouri, the VOL. 1. 8 attesting witnesses are required by statute to attest, not only the formal execution of the will, but the sanity of the testator as well. Withington v. Withington, 7 Mis- sou. 598. It does not, however, seem to be requii'ed that this should be stated in the attestation clause. Murphy v. Murphy, 24 Missou. 526. For the requirement as to attestation of sanity in Illinois, see Stat. 111. p. 336, § 2. See, also, Heyward v. Hazard, 1 Bay, 335 ; 1 Greenl. Ev. § 292 ; 2 Greenl. Ev. § 691 ; Butler u. Benson, I Barb. 526 ; Nelson v. McGififert, 3 Barb. Ch. 158; Lewis v. Lewis, 13 Barb. 17; Torry v. Bowen, 15 Barb. 304; Keeney V. Whitmarsh, 16 Barb. 141. In regard to the purpose and office of witnesses to wills, Rucker v. Lambdin, 20 Miss. 230.] (j') [As to the number of witnesses re- quired in the American States, see ante, 67, note (6^). The statute of Massachu- setts, extending and establishing the com- petency of witnesses to testify in civil and criminal proceedings, expressly excludes the application of it to the attesting wit- nesses to a will or codicil. St. 1870, u. 393, § 2. So in Maine. Rev. St. c. 82, § 80; McKeen v. Frost, 46 Maine, 248. In regard to the attestation of wills in Massachusetts, the statute (Genl. Sts. c. 92, § 6) provides that the witnesses shall be competent at the time of attestation, but their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it is otherwise satisfactorily proved. See, to same effect, in New Hampshire, Rev. St. N. H. u. 157, § 12 ; Frink v. Pond, 46 N. H. 125. In Hawes V. Humphrey, 9 Pick. 356, 357, Wilde J. said : " The object of the statute was to prevent frauds as well as perjuries. [87] 114 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. U. they shall It -jyill be observed, that besides the change from three flittp^t" And subscribe to two in the number of witnesses, there are several im- testJtor's" portant differences between the exigencies of the two presence: i. j. j. *^ statutes. Wills are frequently made by a testator in extremis, or when he is greatly debili- tated by age or infirmity, when frauds may be practised upon him with facility by the crafty and designing ; and it was the intention of the statute to gtjard against such practices, and to protect the testator by surrounding him with disinter- ested witnesses at the critical and impor- tant moment when he is about to execute his will. They are to be disinterested and credible also, at the time of the at- testation, because in some sense they are made the judges of the testator's sanity. It is their duty to inquire into this mat- ter, and if they think the testator not ca- pable, they should remonstrate and refuse their attestation." But see the remarks of Sargent J. upon this point, in Board- man V. Woodman, 47 N. H. 120, 134. See, also, Carlton v. Carlton, 40 N. H. 14. In Sullivan o. Sullivan, 106 Mass. 474, 475 (1871), Gray J. said : " By the law of this commonwealth, a. will must be at- tested by three competent witnesses, that is to say, witnesses who at the time of at- testation would he competent by the rules of the common law to testify concerning the subject-matter,'' and in this case it was held that a wife is not a competent attest- ing witness to a will which contains a de- vise to her husband, notwithstanding the provision of Genl. Sts. c. 92, § 10, that " all beneficial devises, legacies, and gifts, made or given in any will to a subscribing witness thereto, shall be wholly void, un- less there are three other competent wit- nesses to the devise." See Fortune v. Buck, 23 Conn. 1. But see contra as to the effect of the section last above quoted, Wins- low V. Kimball, 25 Maine, 493 ; Jackson V. Woods, 1 John. Cas. 163 ; Jackson u. Durland, 2 John. Cas. 314. In Sparhawk I!. Sparhawk, 10 Allen, 155, it was held that an heir-at-law, who is disinherited, is a competent attesting witness in support of the will. The question of the compe- tency of attesting witnesses to wills is fully discussed in this case by Bigelow C. J., who said in conclusion : " If, by the terms of the will, its admission to probate would operate favorably to the interests of the witness, he is incompetent to attest the execution of the instrument. He then has a direct pecuniary interest in the proof of the fact to which he is called to hear wit- ness." See, as to competency of attesting witnesses, and what is meant by " credible witnesses," Higgins v. Carlton, 28 Md. 117 ; 2 Greenl. Ev. § 691 ; Shaffer t>. Cor- bett,3 Har. & M'H. 513 ; Carlton v. Carl- ton, 40 N. H. 14 ; Rucker v. Lambdin, 12 Sm. & M. 230 ; Gill's Will, 2 Dana, 447 ; Taylor v. Taylor, 1 Rich. (S. Car.) 531 ; Workman v. Dominick, 3 Strobh. 589 ; Hall V. Hall, 18 Geo. 40 ; Eustis i: Parker, 1 N. H. 273; Sears u. Dillingham, 12 Mass. 258 ; Amory i). Fellows, 5 Mass. 219; Hawes v. Humphrey, 9 Pick. 350; Warren v. Baxter, 48 Maine, 193; Allison V. Allison, 4 Hawks, 141 ; Sparhawk v. Sparhawk, 10 Allen, 156; Haven v. Hil- liard, 23 Pick. 10, 17. A minor son of a legatee who is also named as executor, may be a witness to the will. Jones u. Tebbetts, 57 Maine, 572. See Harper v. Harper, 1 N. Y. Sup. Ct. 351, 359, 360. But it has been held in New Hampshire, that a person under the age of fourteen years is presumed to be incompetent, from defect of understanding, to attest the execution of a will, but this presumption may be re- butted ; the witness is not required to have any other qualifications than those of ordi- nary testifying witnesses. Carlton v. Carl- ton, 40 N. H. 14. Mr. Justice Doe in this case said : " In proceedings in the probate court, whether the attesting witnesses of a will are then competent to testify, is a pre- liminary question concerning the admis- CH. II. § II.] OF THE ATTESTATION OF WILLS. 115 The statute of frauds merely requires that the witnesses shall attest and subscribe the will; and it was held in the con- what is a struction of this enactment, that it was unnecessary for acknowl- the testator actually to sign his will in the presence of of fhTtes- the three witnesses who subscribed the same ; but that tor's signa- ' ture to the any acknowledgment before them, that it was his will, witnesses: made their attestation and subscription complete, (k) It was fur- ther held, that it was sufficient if the testator acknowledged in faet, though not in words, to the witnesses that the instrument was his will, even though such acknowledgment conveyed no intimation whatever, or means of knowledge, either of the nature of the in- strument or the object of signing ; and, consequently, that if the witnesses subscribed their names as witnesses, at the testator's re- quest, without seeing his signature, or being informed of the nature of the instrument, the statute was satisfied. (Z) But the new sion of evidence, to be determined before they are sworn ; bat whether they were competent attesting witnesses at the time of attestation, is a question concerning the due execution of the will, to be decided after they are sworn If the will were to be proved before a court and jury, the qualifications at the time of the trial, of the persons offered to testify, would be passed upon by the court, and the qualifi- cations, at the time of the execution of the will, of the persons who attested and sub- scribed it in the testator's presence, would be passed upon by the jury.'' 40 N. H. 20. " Those witnesses are credible, whom the law will trust to testify to a jury, who may afterwards ascertain the degree of credit they have." Pai'sons C. J. in Amory V. Fellowes, 5 Mass. 228, 229 ; Parker C. J. in Sears v. Dillingham, 12 Mass. 361 ; Carlton v. Carlton, 40 N. H. 14. Bat a wife is not a competent witness to her hus- band's will; Pease v. AUis, 110 Mass. \57; nor is a husband to his wife's will. Dickinson v. Dickinson, 61 Penn. St. 401. As to the competency of executors, see Wyman v. Symmes, 10 Allen, 153 ; Rich- ardson V. Richardson, 35 Vt. 238; Gunter V. Gunter, 3 Jones, 441 ; Sears v. Dilling- ham, 12 Mass. 358 ; Dorsey v. Warfield, 7 Md. 65 ; Pruyn v. Brinkerhoff, 7 Abb. Pr. N. S. 400 ; Burnett v. Silliman, 13 N. Y. 93 ; Noble v. Burritt, 10 Rich. (S. Car.) 505 ; Murphy v. Murphy, 24 Missou. 526 ; 4 Kent, 308, note (./) ; Jones v. Larrabee, 47 Maine, 474; Snyder v. Bull, 17 Penn. St. 54 ; Loomis v. Kellogg, 17 Penn. St. 60 ; Richardson v. Richardson, 35 Vt. 238 ; Meyer v. Pogg, 7 Florida, 292. The com- petency of an attesting witness to n will is not to be determined upon the state of facts existing at the time the will is offered for probate, but upon the facts existing at the time of attestation. Patten u. Tall- man, 27 Maine, 17 ; Morton v. Ingram, 11 Ired. 368; Sears v. Dillingham, 12 Mass. 3^8, 362 ; Doe v. Hersey, 4 Burn E. L. 88.] {k) Ellis w. Smith, 1 Ves. jun. U ; Case- ment V. Fulton, 5 Moore P. C. 138, by Lord Brougham ; [HoUoway «. Galloway, 51 III. 159 ; Merchant's Will, 1 Tuck. (N. Y. Sur.) 151 ; Dewey v. Dewey, 1 Met. 349 ; Ela v. Edwards, 16 Gray, 91 ; Rob- erts V. Welch, 46 Vt. 164 ; Adams v. Field 21 Vt. 256; Rush o. Parnel, 2 Harring. 448; Welch v. Welch, 2 Monroe, 83; Dudleys v. Dudleys, 3 Leigh, 436 ; Beane V. Yerby, 12 Grattan, 239 ; Smith v. Jones, 6 Rand. 33.] {I) White V. Trustees ■ of the British Museum, 6 Bing. 310 ; S. C. 3 M. & P. 116 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. statute requires further, that the signature of the testator " shall be made or acknowledged (J}') by the testator " in the presence of the two attesting witnesses. Soon after the act came into opera- tion, a doubt appears to have been suggested, (m) whether an 689 ; "Wright v. Wright, 7 Bing. 457 ; S. C. 5 M. & P. 316 ; Johnson v. Johnson, 1 Cr. & M. 140 ; S. C. 3 Tyrw. 73 ; [Dewey J. in Nickerson v. Buck, 11 Gush. 342; Eay u. Walton, 2 A. K. Marsh. 71 ; Jauncey v. Thome, 2 Barb. Ch. 40 ; Huff V. Huff, 41 Geo. 696 ; Dickie v. Carter, 42 111. 376. It is not necessary that the wit- nesses should see the testator's signature on the paper, or know from him or any other source that the instrument which they attest is his will. Dewey v. Dewey, 1 Met. 349 ; Hogan v. Grosvenor, 10 Met. 56 ; Ela v. Edwards, 16 Gray, 92 ; Tilden ■;. Tilden, 13 Gray, 110, 114; Turner v. Cook, 36 Ind. 129 ; Brown u. McAllister, 34 Ind. 375. See Adams u. Norris, 23 How. (U. S.) 353; Tevis v. Pitcher, 10 Cal. 465 ; Jauncey v. Thome, 2 Barb. Ch. 40; Leverett v. Carlisle, 19 Ala. 80; Dickie v. Carter, 42 111. 376. In Osborn V. Cook, 11 Cash. 532, no one of the wit- nesses knew that it was a will they were attesting. The will was in the testator's handwriting, and was sustained. In Ho- gan V. Grosvenor, 10 Met. 56, the will was in the handwriting of the testator. The testator took the paper from his, desk, asked the witness to sign it, and pointed out the place where he wished him to put his name. The witness did so, not know- ing what the paper was, and not noticing the signature of the testator on the paper. This was held a good attestation of the will. In Ela u. Edwards, 16 Gray, 91, proof was offered of the execution of a will in the handwriting of the testatrix and signed by her, to which three other persons had signed their names in the usual place for the signatures of witnesses, but without any attestation clause. The person whose name came first, testified : " She passed me a package of papers ; asked me to sign my name as a witness ; told me where to sign on the left side." The per- son whose name was last, testified : " She said she wanted me to witness a docu- ment ; that she had been making a little disposition of her effects, and would like to have me sign it as a witness. She put her finger to the line where she wished me to sign." It appeared that the other per- son who signed as a witness was out of the jurisdiction of the court, but it was proved that the signature was genuine. It was held that this was sufficient proof, in the absence of any evidence or allegation of fraud, of a due execution of the •will. Dewey J. said : " The fact that she was thus obtaining the attestation of witnesses, and the directions which she gave as to signing their names, furnish strong pre- sumptive proof that she had signed it." See Dewey o. Dewey, 1 Met. 354. But when a will was attested by the three sub- scribing witnesses at different times, and one of them, though he signed in the presence of the testatrix, neither saw her sign nor heard her acknowledge her sig- nature, it was held that the will was not proved. Tucker v. Oxner, 12 Rich. Law (S. Car.), 141. In Vermont it is held to be necessary that the witnesses to the will know the character of the act which they are called upon to perform, and that by affixing their names to the instrument they are thereby attesting the execution thereof by the testator. They must sub- scribe their names animo testandi, and in the presence of each other. Roberts v. ' Welch, 46 Vt. 164. J (?!) [The statutes of New York, Ohio, and Illinois provide in the same manner for the sufficiency of an acknowledgment by the testator of his signature. See Lewis V. Lewis, 13 Barb. 17 ; S. C. 1 Ker- nan, 220 ; Jauncey v. Thorne, 2 Barb. Ch. 40.] (m) In the Goods of Regan, Prerog. Aug. 7, 1838; 1 Curt. 908. See, also, 3 Curt. 174. CH. II. § II.] OF THE ATTESTATION OP WILLS. 117 acknowledgment of the signature was intended to be effectual in any other case than where the signature had been made " by some other person " by the direction of the testator ; but Sir H. Jenner Fust was clearly of opinion, that the statute meant, that whether the signature be made by the testator, or by some other person, * if it be acknowledged by the testator in the presence of the two witnesses, the execution shall be good. A more difficult question hereupon arises, in cases where the signature is made by the testator, but not in the presence of the attesting witnesses, as to what shall be a sufficient -acknowledgment of it by him in their presence. The result of the cases appears to be that where the testator produces the will, with his signature visibly apparent on the -face of it, to the witnesses, and requests them to subscribe it, this is a sufficient acknowledgment of his signature : (n) but not Will, 3 Bibb, 494 ; Denton v. Franklin, 9 B. Mon. 28 ; Eelbeck v. Granberry, 2 Hayw. 232 ; Butler v. Benson, 1 Barb. 526 ; Jauncey v. Thome, 2 Barb. Ch. 40 ; Nelson v. McGifFert, 3 Barb. Ch. 158; Baskin v. Baskin, 36 N. Y. 419 ; S. C. 48 Barb. 200 ; Conboy v. Jennings, 1 N. Y. Sup. Gt. 622 ; Allison «. Allison, 46 111. 61 ; Reed v. Watson, 27 Ind. 443 ; In re Will of Alpaugh, 8 C. E. Green (N. J.), 507. The acknowledgment may be made by the testator in the absence of the signa- ture. Eelbeck v. Granberry, 2 Hayw. 232. It is not necessary that he should ex- pressly request the subscribing witnesses to attest his will. Higgins v. Carlton, 28 Md. 117; Rogers v. Diamond, 13 Ark. 474 ; Soguine v. Seguine, 2 Barb. 385 ; Hutohins «. Cochrane, 2 Bradf 295. If another person, acting for the testator, should in his presence and with his con- sent request the witnesses, and direct them where, to sign their names upon the will, the effect would be the same as if the testator had made the request himself. Inglesant v. Inglesant, L. R. 3 P. & D. 172 ; Allison v. Allison, 46 III. 61.] The like was held where the testator had in- timated to the same effect by gestur. In the Goods of Davies, 2 Robert. 337. See, also. In re Jones, Dea. & Sw. 3 ; [Nicker- son V. Buck, 12 Cush. 332, 342, 343 ; Ela V. Edwards, 16 Gray, 92, 93 ; Thomas J (n) GazBK. Gaze, 3 Curt. 451 ; Blake v. Knight, 3 Curt. 547 ; Keigwin v. Keigwin, 3 Curt. 611 ; In re Davis, 3 Curt. 748; In re Ashraore, 3 Curt. 756. See, also, In the Goods of Warden, 2 Curt. 334 ; In the Goods of Philpot, 3 Notes of Cas. 2 ; In the Goods of Bosanquet, 2 Robert. 577 ; In the Goods of Dinmore, 2 Robert. 641. A different view seems to have been once taken of this subject. In the Goods of Rawlins, 2 Curt. 326 ; In the Goods of Harrison, 2 Curt. 863. It is not neces- sary that a testator should state to the witnesses that it is his signature. The production of a will by a testator, it hav- ing his name upon it, and a request to the witnesses to attest it, would be a sufficient acknowledgment of the signature under the statute. 3 Curt. 172, 175, per Sir H. Jenner Fust. See, also, 3 Curt. 563, 564 ; In the Goods of Thompson, 4 Notes of Cas. 643 ; Leech v. Bates, 6 Notes of Cas. 704, by Sir H. Jenner Fust; [Tilden v. Tilden, 13 Gray, 110; Dewey v. Dewey, 1 Met. 349; Osborn v. Cook, 11 Cush. 532, 533 ; Hall v. Hall, 17 Pick. 373, 379 ; Adams v. Field, 21 Vt. 256; Boldry v. Parris, 2 Cush. 433 ; Nickerson v. Buck, 12 Cnsh. 342, 343; Beave v. Yerby, 12 Grattan, 239; Green v. Grain, 12 Grattan, 552 ; Rucker v. Lambdin, 12 Sm. & M. 230 ; Small v. SraalJ, 4 Greenl. 220 ; Ray V. Walton, 2 A. K. Marsh. 74 ; Cochran's [88] 118 OF THE FORM, ETC. OF MAKING A WILL. [PT. L BK. II. -where they are unable to see the signature, and the testator merely calls them in to sign, without giving them any explanation of the instrument they are signing, (o) So in a case before Sir G. * Cress- well, the witnesses were invited by the testator to witness his sig- nature on a paper which appeared to them to be a blank. They saw no writing whatever on it, and the signature they witnessed was on the fourth side of a sheet of paper folded in the middle. On the first side of that sheet, when the paper was produced for probate, there appeared to be a codicil ; but there was no evidence that anything was written on the paper before the signatures were put there : and on that ground the learned judge, after considera- tion, refused to admit the paper to probate, (p) in Osbom v. Cook, 11 Cush. 532, 536; Tilden c. Tilden, 13 Gray, 110; Rande- baugh V. Shelley, 6 Ohio St. 307. Where it did not appear whether the testator did or did not sign the will or acknowledge the signature to be his in the presence of the witnesses, but the testator, after his name was signed to the will, declared it to be his will and asked them to sign it as witnesses, and the attestation clause was in the handwriting of the testator, and de- clared that it was signed in the presence of the witnesses, the certificate was taken as true, and as proof of signing in their presence. In re Will of Alpaugh, 8 C. E. Green (N. J.), .507.] But it is not sufiB- cient merely to produce the paper to the witnesses, where it does not appear that the signature of the testator was afSxed to it at the time. 4 Notes of Cas. 181, per Sir H. Jenner Fust; In the Goods of Ashton, 5 Notes of Cas. 548; [Dunlop u. Dunlop, 10 Watts, 153.] For another in- stance of an insufficient acknowledgment of the signature, see In the Goods of Summers, 2 Rob. 295 ; S. C. 7 Notes of Cas. 562. [In New Jersey, where the statute for devising real estate (1714) re- quired that the testator should sign his name in the presence of the witnesses, it hag been held that his acknowledgment of his signature is not a compliance with the act. Den v. Milton, 7 Halst. 70 ; Combs v. Jolly, 2 Green Ch. 625 ; Mickle v. Matlack, 2 Harr. 86. For the present law of New [89] Jersey upon this point, see stat. 1851, con- cerning wills. In re McElwaine, 3 Green (N. J.), 499. See, also, Butler v. Benson, 1 Barb. 526 ; Adams v. Field, 21 Vt. 256 ; Bosser v. Franklin, 6 Grattan, 1 ; Hoffman V. Hoffman, 26 Ala. 535.] (o) Ilott V. Genge, 3 Curt. 160 (affirmed in privy council, 4 Moore P. C. 265) ; Hudson V. Parker, 1 Robert. 14. See, also. Doe v. Jackson, cited per curiam in 3 Curt. 181, 182, 184; S. C. nomine Faulds V. Jackson, before the privy council, 6 Notes of Cas. Suppl. p. 1 ; In the Goods of Trinder, 3 Notes of Cas. 275 ; [Ela ... Edwards, 16 Gray, 92; Hogan «. Gros- venor, 10 Met. 56 ; Tilden v. Tilden, 13 Gray, 110; Osborn v. Cook, 11 Cush. 532.] Where a will has been executed in the presence of two witnesses, and, in ad- dition to their signatures, the signature of a third person, who is also residuary lega- tee, appears at the foot of the will, the court will receive evidence to explain why such signature was written, and if it be satisfied that it was not written with ' the intention to attest the signature of the de- ceased, it will order it to be omitted in the probate. In the Goods of Sharman, L. B. 1 P. & D. 661. [But if the court is satisfied that the witness signed with intent to attest, that will be sufficient to make him an attesting witness, although he also signed in the character of executor. Grif- fiths V. Griffiths, L. R. 2 P. & D. 300.] (p) In the Goods of Hammond, 3 Sw. CH. II. § II. j OF THE ATTESTATION OF WILLS. 119 It may here be observed, that the new statute further enacts, by sect. 13, "that every will executed in manner hereinbefore men- tioned shall be valid without any other publication thereof." (§') & Tr. 90. But a will was written across the second and thiid sides of a sheet of note paper, the lower part of such sides being left blank, and the attestation clause and the signature of the testator and witnesses were written at the back of the will, and, therefore, across the top of the first and fourth sides of the paper, and the testator wrote the will in the presence of the wit nesses immediately before he executed it, it was held by Lord Penzance that the will was well executed under the stat. 1 5 & 16'Vict. c. 24. In the Goods of Archer, L. R. 2 P. & D. 252. (q) It seems to be doubtful whether any publication as distinguished from attesta- tion, was necessary for a will of land un- der the statute of frauds. See the judg- ment of Lord Denman, in Doe v. Burdett, 4 Ad. & El. 14, and the observations of the judges in the same case on error, in the exchequer chamber, 9 Ad. & El. 936 ; 1 P. & D. 670, and in the house of lords, 6 M. & Gr. 386 ; and, also. White I/. Trustees of the British Museum, ante, 87, note {I). [It is sufBcient publication in Maine, Massachusetts, Delaware, Ver- mont, Virginia, and South Carolina, if it be made to appear that the testator at the time of executing the instrument, knew it to be his will and intended it as such, and was fully apprised of its contents. Eice J. in Cilley r. Cilley,34 Maine, 162, 164; Swett u. Boardman, 1 Mass. 258; Dewey' V. Dewey, 1 Met, 349 ; Smith u. Dolby, 4 Harring. 350 ; Dean v. Dean, 27 Vt. 746 ; Bean'e v. Yerby, 12 Grattan, 239 ; Verdier V. Verdier, 8 Kich. (S. Car.) 135; "Watson I/. Piper, 32 Miss. 451 ; Hogan v. Gros- venor, 10 Met. 54. This point is fully dis- cussed by Thomas J. in Osborn v. Cook, 11 Ciish. 532. As to publication in New Jersey, see Den v. Milton, 7 Halst. 70; Mickle V. Matlack, 2 Harr. 87 ; Combs v. Jolly, 2 Green Ch. 625 ; Eev. Sts. N. J. 1847, p. 363 ; Nixon's Dig. 863. In In- diana, see Turner a. Cook, 36 Ind. 129.] No publication was ever necessary for a will of personal estate. See anie, 84. [But to authorize a surrogate in New York to admit a last will to probate, it must appear that he executed and attested in the fol- lowing manner: 1st. Subscribed by the testator at the end of the will; 2d. Such a subscription shall be made in presence of each of the attesting witnesses, or shall be acknowledged to have been so made to each of the witnesses. 3d. When the testa- tor subscribes the will, or makes the ac- knowledgment, he shall declare the in- strument so subscribed to he his last will and testament. 4th. There shall be two witnesses who shall sign at the end of the will, at the request of the testator. 3 E. S. 144, § 35, 5th ed. An actual publica- tion of the will, as a will, in the presence of the subscribing witnesses, is thus made indispensable; and this publication is an act independent and distinct from sub- scription or acknowledgment of subscrip- tion. Baskia u. Baskin, 36 N. Y. 416 ; S. C. 48 Barb. 200 ; Heycr v. Berger, 1 Hoif. Ch. 1 ; Brinkerhoff v. Remsen, 8 Paige, 488 ; S. C. 25 Wend. 325 ; Chaffee V. Baptist Miss. Conv. 10 Paige, 85; 2 Eev. Sts. N. Y. 63, § 40; Torry v.Bowen, 15 Barb. 304; Nipper v. Groesbeck, 22 Barb. 670; Abbey v. Christy, 49 Barb. 276; Lewis v. Lewis, 13 Barb. 17; S. C. 1 Kernan, 220; Newhouse v. Godwin, 17 Barb. 236; Gilbert v. Knox, 52 N. Y. 125 ; Harder's Will, 1 Tuck. (N. Y. Sur.) 426; Harris's Will, 1 Tuck. (N. Y. Sur.) 293. The publication must be in the pres- ence of both witnesses, by declaration that the instrument is the testator's last will and testament. Seymour v. Van Wyck, 2 Sel- den, 120; Tyler v. Mapes, 19 Barb. 448. There must at least be some act or decla- ration recognizing the instrument, by the testator, as his will, indicating that he de- sires the witnesses to subscribe it as such. Hunt V. Mootrie, 3 Bradf Sur. 322 ; Tuni- son V. Tunison, 4 Bradf. Sur. 138; Euther- 120 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. H. And it has been said, (r) that the result of this enactment is, that the testator need not inform the witnesses of the nature of the in- strument they are attesting, * and that even if he deceives them and leads them to believe that it is a deed, and not a will, the execu- tion is good notwithstanding, (r-^) ford V. Entheriord, 1 Denio, 33 ; Nipper v. Groesbeck, 22 Barb. 670 ; Moore v. Moore, 2 Bradf. Sur. 261. Publication in the presence of the witnesses is required in North Carolina, New Jersey, and Arkan- sas. Den u. Milton, 7 Halst. 70; Den v. Matlack, 2 Harr. 86 ; Morehouse o. Co- theal, 1 Zabr. 480. No particular form of publication is given, or seems to be re- quired in any of these states, provided it amounts in substance to a declaration, that the instrument is the last will and testa- ment of the testator. See Remsen v. Brinkerhoif, 26 Wend. 324 ; Whitbeck v. Patterson, 10 Barb. 608; Brown v. De Selding, 4 Sandf. 10 ; Cilley v. Cilley, 34 Maine, 164. In Coffin v. Coffin, 23 N. Y. 1 5, it is said that the declaration, that the instrument is the testator's last will and testament, need not be made in any partic- ular form. Any communication of the testator to the witnesses whereby he makes known to them that he intends the instru- ment to take effect as his will, will satisfy the requirement. In that case both wit- nesses were present, and one of them asked the testator if he wished him to sign or witness the will, and the testator an- swered in the affirmative. This was held to be a good publication. The judge de- livering the opinion said : " There can be no doubt that such a declaration can be made in answer to a question, or even by a sign. It is only required that it be understandingly made." Shaw C. J. in Bayley u. Bailey, 5 Cush. 245, 259, 260. In Lewis u. Lewis, 1 Kernan, 226, Allen J. said : " To satisfy the statute, the testator must in some manner communi- cate to the attesting witnesses, at the time they are called to sign as witnesses, the information that the instrument then pres- ent is of a testamentary character and that he then recognizes it as his last will [90] and testament, by some assertion or clear assent in words or signs ; and the declara- tion must be unequivocal. The policy and object of the statute require this, and nothing short of this will prevent the mis- chief and fraud which were designed to be reached by it. It will not suffice that the witnesses have elsewhere, and from other sources, learned that the document which they are called to attest is a will, or that they suspect, or infer from the circum- stances and occasion that such is the char- acter of the paper. The fact must in some manner, although no particular form of words is required, be declared by the tes- tator in their presence, that they may not only know the fact but that they may know it from him, and that he under- stands it, and, at the time of his execu- tion, which includes publication, designs to give eflSect to it as his will ; and to this, among other things, they are required by statute to attest." See Bagley v. Black- man, 2 Lansing, 41 ; Smith «. Smith, 2 Lansing, 266; 40 How. Pr. 318. In Trus- tee of Auburn Theological Seminary v. Calhoun, 62 Barb. 381, it was testified by the subscribing witness to the execution of a will, that she saw the deceased sign his name at the end of the paper ; that he said he wanted her to sign her name to a paper, and she did so ; but did not hear him say that it was his last will and testa- ment ; that she signed it in his presence ; it was held that this testimony did not show that the statute had been complied with. See McKinley v. Lamb, 64 Barb. 199. In this the law in New York differs from that in other states. See ante, 87, note {I).] (r) Sugden's Essay, 140, citing Trim- mer V. Jackson, 4 Burn E. L. 130; British Museum V. White, 3 M. & P. 689. (ri) [See ante, 87, note {I).] CH. II. § n.] OF THE ATTESTATION OF WILLS. 121 Again, in the construction of the statute of frauds, it the attesta- was held, that the act did not require that the witnesses P°" S"^* should subscribe in the presence of each other, but that ">'= testator they might attest the execution separately, at different oracknowi- times. (s) But the new statute makes it necessary that signature both the witnesses to the will shall be present at the ^"Ses''^ same time when the signature is made or acknowledged being pres- ° _ 6 ent at tlie by the testator. And they must attest in the presence same time: of the testator, though not of each other, (f) And it ap- ^"^t^ff pears to be now fully established that the act is not in the pres- complied with unless both witnesses shall attest and sub- testator, scribe after the testator's signature shall have been made of each "" or acknowledged to them when both are actually present °*^''' at the same time, (m) And if one of the witnesses has subscribed (s) Cook V. Parsons, Free. Chanc. 184; Ellis V. Smith, 1 Ves. jun. 12; Westbeech V. Kennedy, 1 V. & B. 362. See, also, De Zichy Ferraris v. Hertford, 3 Curt. 480, per Sir H. Jenner Fast ; [Dewey v. Dewey, 1 Met. 349 ; Jauncey v. Thorne, 2 Barb. Ch. 40 ; Hoffman v. Hoffman, 26 Ala. 535 ; Parramore v. Taylor, 1 1 Grattan, 220. In Green u. Crain, 12 Grattan, 252, a will was witnessed on different days, by A., B. and C. ; by A. in the absence of both the other witnesses ; B. signed in the presence of the testator alone, but was also present when C. signed, and the testator acknowl- edged the will before both B. and C. ; the will was held to be well executed. The wills act of Illinois does not require that the attesting witnesses shall sign in each other's presence. Flinn v. Owen, 58 111. 111. Nor is this necessary in New York ; Willis o. Mott, 36 N. Y. 486 ; Haysradt v. Kingman, 22 N. Y. 372 ; nor in Alabama. Hoffman v. Hoffman, 26 Ala. 535.] (t) 3 Curt. 659, per Sir H. Jenner Fust. And so held in Faulds v. Jackson, Privy Counc. June 14, 1845 ; 6 Notes of Cas. Suppl. 1 ; In the Goods of Webb, Dea. & Sw. 1; [Ela v. Edwards, 16 Gray, 92; Dewey v. Dewey, 1 Met. 349 ; Parramore K.Taylor, 11 Grattan, 220.] But in Case- ment V. Fulton, Priv. Counc. July 25, 1845, 5 Moore P. C. 130, the same court held (without adverting to their previous decision) that the witnesses must attest in the presence of each other ; on the ground that the word " such " in the statute must embrace what has been just said of their presence, and must mean " the witnesses, &c. present at the same time." This case is remarkable, not only because it is op- posed to Faulds v. Jackson, but, also, be- cause the facts were such that it might have been decided on the principle of Moore v. King (cited in the text above), and indeed had been so decided in the court below (the supreme court of Cal- cutta). [In Vermont, the witnesses must subscribe their names in presence of each other. Roberts v. Welch, 46 Vt. 164; Williams v. Eobinson, 42 Vt. 658; St. Vt. 1839, p. 254, § 6; Dean v. Dean, 27 Vt. 746, 748 ; Blanchard v. Blanchard, 32 Vt. 62.] (h) Moore v. King, 3 Curt. 243 ; Cooper V. Bockett, lb. 648; 4 Moore P. C. 419; [Jackson v. Jackson, 39 N. Y. 153.] See, also, accord. In the Goods of Allen, 2 Curt. 331 ; In the Goods of Olding, 2 Curt. 865 ; In the Goods of Simmonds, 3 Curt. 79 ; In the Goods of Byrd, 3 Curt. 117; Pennant v. Kingscote, 3 Curt. 643, 647 ; Hindmarsh v. Charlton, 8 H. L. Cas. 1 60. The words of the act are prospective, such witnesses " shall attest and shall sub- scribe the will in the presence of the testa- tor.'' 3 Curt. 660, per Sir H. Jenner Eust. 122 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. before the testator signs or acknowledges his * signature in the pres- ence of both, and the other witness alone then subscribes in the presence of the former witness and the testator, this is not suffi- cient even though the former witness then expressly acknowledges the signature which he has previously made : for the act says that the testator may acknowledge his signature ; but does not say that the witnesses may acknowledge their subscriptions, (x) Thus, in (x) 3 Curt. 253. See, also, In the Goods of Byrd, 3 Curt. 117; Casement v. Ful- ton, 5 Moore P. C. 130. [See Hudson V. Parker, 1 Rob. Ec. 14; Shaw v. Ne- ville, 38 Eng. Law & Eq. 615 ; Reed v. Watson, 27 Ind. 443 ; Beckett u. Howe, L. R. 2 P. & D. 1 ; Goods of Puddephat, L. R. 2 P. & D. 97 ; Charlton v. Hind- marsh, 1 Sw. & Tr. 433 ; Re Cunningham, 29 L. J. N. S. (Prob.) 71 ; Re Haskins, 32 L. J. N. S. (Prob.) 158 ; Pope v. Pope, Vermont, cited in Chase v. Kittredge, 11 Allen, 61 ; Lamb v. Girtman, 33 Geo. 289 ; Jackson v. Jackson, 39 N. Y. 153. In New Jersey, an acknowledgment of his signa- ture by a witness is held insufficient. Den V. Milton, 7 Halst. 70 ; Combs v. Jolly, 2 Green Ch. 625; Mickle v. Matlack, 2 Harr. 86. So in Massachusetts, Chase v. Kittredge, 11 Allen, 49, where the sub- ject is fully and critically examined by Mr. Justice Gray. So in Delaware, Eash v. Purnel, 2 Harring. (Del.) 458 ; Pennel v. Weyant, 2 Harring. (Del.) 506. And in North Carolina, Ragland v. Huntington, Ired. 561 ; Graham v. Graham, 10 Ired. 269 ; In re Cox's "Will, 1 Jones, 321. And in Georgia, Duffie v. Corridon, 40 Geo. 122. So in Indiana, Reed v. Wat- son, 27 Ind. 443. But the law is otherwise in Pennsylvania, where it was held that a will was sufficiently executed and attested, although the testator did not sign his name until after the attesting witnesses had sub- scribed their names to the will. Miller v. McNeill, 35 Penn. St. 217, In this state, however, the statute requires that the will shall be attested by the witnesses, but not that it shall be subscribed by them. See ante, 67, note (M). So in other cases, it has been held that, if the execution is completed all at one time, and is a single [91] transaction, the order in which the requi- sites are fulfilled is quite immaterial. See Vaughan v. Burford, 3 Bradf. Sur. 78. In Connecticut and Kentucky, it has been held that a witness might sign in the pres- ence of the testator before he signed, and acknowledge it afterwards, all being done at the same time. O'Brien v. Galagher, 25 Conn. 229; Swift «. Wiley, 1 B. Hon. 117; Hpcburch !). Upchurch, 16 B. Mon. 113. See Chisholm v. Ben, 7 B. Mon. 408. " But the only decisions," says Mr. Jus- tice Gray, in Chase v. Kittredge, 11 Allen, 63, " which have come to our notice, in which an acknowledgment by a witness to a will in the testator's presence, of a sig- nature atfixed in his absence, has been held to be an attestation and subscription in his presence, are those of a bare major- ity of the court of appeals of Virginia, in Sturdivant v. Birchett, 10 Grattan, 67, and Parramore v. Taylor, 11 Grattan, 220." After a careful review of the au- thorities in the above case of Chase v. Kittredge, the learned judge adds : " This analysis of the cases shows that by the pre- ponderance of American authority, as by the uniform current of the English decis- ions, an express requirement of statute that one person shall sign or subscribe in the presence of another is not complied with by signing in his absence and merely acknowledging in his presence." Then, treating the case on principle, he adds that it is the will of the testator which the witnesses are to attest and subscribe. It must be his will in writing, though he need not declare it to be such. It must, therefore, be signed by him, before it can be attested by the witnesses. He must either sign in their presence, or acknowl- edge his signature to them, before they CH. II. § II.] OF THE ATTESTATION OF WILLS. 123 Moore v. King, («/) a testator signed a codicil in the presence of a witness (his sister) who, at his desire, attested and subscribed it : on a subsequent day, when the sister and another person were present, he desired her to bring liim tlie codicil, and requested the other person present to attest and subscribe it, saying in the pres- ence of both parties and pointing to his signature, " This is a cod- icil signed by myself and by my sister, as you see ; you will oblige me, if you will add your signature, two witnesses being necessary." That party then subscribed in the presence of the testator and his sister, the latter who was standing by him, pointing to her signa- ture and saying, " There is my signature, you had better place yours underneath : " she did not, however, re-subscribe ; and it was held by Sir H. Jenner Fust, that the instrument was not suf- ficiently attested under the new statute. (2/^) It will be observed that the provision of the statute of frauds, requiring that the witnesses shall attest and subscribe what is to in the presence of the testator, is continued in the statute ered^as'the of Victoria, (2) and as the language in both the acts is J'|j^\™ta-°^ the same in this respect, it should seem that the decis- tor: ions which have taken place as to the former will govern the con- struction of the latter. (2^) The result of them is, that it is not requisite that the testator should actually see the witnesses sign, but that it is sufiicient if he might have seen them if he chose to look, (a) * Thus where a will was executed by the testatrix in her can attest it. The statute not only re- 309; Nock y. Nock, 10 Grattan, 106; Neil quires them to attest, but to subscribe. 4). Neil, 1 Leigh, 22 ; 1 Greenl. Ev. § 272 ; This subscription is the evidence of their 2 Greenl. Ev. § 678 ; post, 93, and cases in previous attestation. It is as difficult to see note (A).] how they can subscribe in proof of their (a) Shires v. Glascock, 2 Salk. 688; attestation before they have attested, as it Davy .v. Smith, 3 Salk. 395 ; Todd u. is to see how they can attest before the Winchelsea, M. & Malk. 12 ; S. C. 1 C. & signature of the testator has made it his P. 488; [Reynolds v. Reynolds, 1 Spears, written will. " But the controlling con- 253 ; Dewey v. Dewey, 1 Met. 349 ; Rud- sideration is, that the statute in terms don v. McDonald, 2 Bradf. Sur. 352; requires not only that the witnesses shall Edelen v. Hardy, 7 Harr. & J. 61 ; 4 Kent, attest his will, but that they shall sub- 515,516; Russell u. Falls, 3 Hiirr. & M'H. scribe in his presence.'' 11 Allen, 64.] 457; Lamb v. Gertman, 26 Geo. 625; (y) 3 Curt. 243. Moore v. Moore, 8 Grattan, 307 ; Hill o. (yi) [See Reed v. Watson, 27 Ind. 443.] Barge, 12 Ala. 687 ; Robinson v. King, 6 (z) The real property commissioners Geo. 539 ; Bundy a. McKiiight, 48 Ind. recommended (4th Report, pp. 18, 19, 20) 509.; Turner v. Cook, 36 Ind. 129 ; Mc- that this provision should be discontinued. Elfresh v. Guard, 32 Ind. 408. This sub- («i) [As to what presence of the testator ject is very fully and ably treated in Neil signifies, see Moore v. Moore, 8 Grattan, 0. Neil, 1 Leigh, 6.] [92] 124 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. carriage, and the witnesses subscribed in the attorney's office, op- posite to the window of which the carriage was, so that she might have seen them through the window while subscribing, it was held that the statute was satisfied. (S) But where the witnesses signed in an adjoining room to that in which the testator was, and the door between them was open, but he was not in such a position that he could see them, it was held that the attestation was ill. (c) In a late case in the prerogative court, (d) where the question arose on a will made after the new act came into operation, the witnesses had attested in the room where testator was lying in bed with the bed-curtains closed around him, so that he could not, for that reason, have seen the witnesses while they were subscribing ; Sir H. Jenner Fust was of opinion that where a paper is executed by the deceased in the same room where the witnesses are, who attest it in the same room where the testator was at the time, they do attest it in the presence of the testator, though he may not actually see them sign : the will was accordingly admitted to pro- bate, (e) But in a subsequent case in the same court, (/) where the testatrix lay with the curtains- closed, and her back to the at- testing witnesses when they subscribed, and it appeared that she could not by possibility have seen them do so, even if the curtains had not been closed, by reason of her inability, from her state of weakness, to have turned herself in her bed into a position in which she could have seen them sign, the same judge held that the statute was not complied with, (/ 1) and he distinguished the (6) Casson v. Dade, 1 Bro. C. C. 99. (/) Tribe v. Tribe, 7 Notes of Cas. 132 ; [The law of New York seems not to be S. C. 1 Robert. 775. so strict in this respect. See Rudden u. (/i) [See Brooks v. Duffell, 23 Geo. McDonald, I Bradf. Sur. 352; Jackson 441 ; Jones a. Tuck, 3 Jones (N. Car.) V. Christman, 4 Wend. 277 ; Lyon u. Law, 202 ; Reed v. Roberts, 26 Geo. 294. Smith, 11 Barb. 124.] An attestation in tbe same room is held (c) Doe o. Manifold, 1 M. & S. 249 ; to be presumptively in the presence of the Winchelsea v. Wauehope, 3 Rnss. 441. testator. Howard's Will, 5 Monroe, 199; Held, accord, since the new act. In the Neil v. Neil, 1 Leigh, 6. But an attesta- Goods of Newman, Prerog. Nov. 30, 1838; tion made in a different room is prima 1 Curt. 914; In the Goods of Ellis, 2 Curt, facie an attestation not in his presence. 395 ; In the Goods of Colman, 3 Curt. 118 ; Neil v. Neil, 1 Leigh, 6 ; Edelen v. Hardy, [Boldry v, Parris, 2 Cush. 433 ; Reynolds 7 Har. & J. 61 ; Lamb v. Girtman, 33 <^. Reynolds, 1 Spears, 253.] Geo. 289. In the well-considered ' case of {d) Newton v. Clarke, Dec. 24, 1839 ; Russell v. Falls, 3 Harr. & M'H. 463, 464, 2 Curt. 320. it was regarded as necessary that the tes- (e) See, also, &caori.per curiam, 2 Salk. tator should have been able to see the 688, Shires v. Glascock. attestation, without leaving his bed ; being CH. II. § II.] OF THE ATTESTATION OF WILLS. 125 case from the former one where the testator could have * seen but that the curtains were closed ; and the learned j iidge added that in the present case there would hare been no difference, in princi- ple, if the witnesses had signed the will down-stairs. In one of the latest cases on this subject. Sir John Dodson held that where the subscription of the witnesses takes place in a different room from that in which the testator is, he must be proved to have been in a position whence he could have seen the witnesses as they sub- scribed their names, (jg) Though the testator was blind, yet it must be shown that he could have seen the witnesses sign, had he had his eyesight. (A) The new statute provides that " no form of attestation shall be necessary." It is, therefore, sufficient if the witnesses, no form of without any attestation clause of any description, merely necessarj': subscribe their names. («') But it must be observed, that unless there is an attestation clause, reciting that the formalities pre- scribed by the act have been complied with, the executor cannot obtain probate in the usual way on his own oath alone ; but must produce an affidavit from one of the attesting witnesses, or some other satisfactory evidence showing that the solemnities have been performed as required by the statute. (¥) able to see the witnesses merely is not be shown that it was read to him before enough. Graham u. Graham, 10 Ired. signing. Wampler w. Wampler, 9 Md. 540 ; 219.] Hemphill v. Hemphill, 2 Dev. Law, 291.] (g) Norton v. Bazett, Dea. & Sw. 259. (i) Bryan v. White, 2 Robert. 315 ; In a recent case. In the Goods of Trinmel, [Jackson u. Jackson, 39 N. Y. 153 ; 11 Jur. N. S. 248, 249, Sir J. P. Wilde Leaycraft v. Simmons, 3 Bradf. Sur. 35 ; laid it down that the true test is, whether Patheree v. Lawrence, 33 Miss. 585. J the testator might have seen, not whether (k) See post, pt. i. bk. it. oh. iii. § iii. ; he did see, the witnesses sign their names. Roberts v. Phillips, 4 E. & B. 457, by Lord See, further, In the Goods of Kellick, 3 Sw. Campbell. [In Ela n. Edwards, 16 Gray, & Tr. 578; [Bynum v. Bynum, 11 Ired. 91, 97, Dewey J. said: "It seems to be 632 ; Dewey v. Dewey, 1 Met. 349 ; Reed well established that the fact of the want V. Roberts, 29 Geo. 294 ; Lamb i;. Girt- of an attestation clause does not Invalidate man, 26 Geo. 625; Hill v. Barge, 12 Ala. the will. It does not, in the case of the 687 ; Neil v. Neil, 1 Leigh, 6 ; ante, 92, death or absence from the jurisdiction of note (f-) ; Edelen v. Hardy, 7 Harr. & J. the court of one or all of the witnesses, 61 ; Boldry v. Parris, 2 Gush. 433.] defeat the probate of the will, but only (h) In the Goods of Piercy, 1 Robert, changes the nature of the proof. Instead 278 ; [Boyd v. Cook, 3 Leigh, 32 ; Rey- of its being shown by the attestation clause nolds V. Reynolds, 1 Spears (S. Car.), 256 ; that there was a compliance with the stat- Ray V. Hill, 3 Strobh. 297. But a blind ute, the court, or jury, if the case is tried man's will need not be read to him in by a jury, are to be reasonably satisfied of the presence of the witnesses ; Martin v. the fact of a proper attestation from other Mitchell, 28 Geo. 382 ; ante, 19 ; if it can sources and the circumstances of the case." [93] 126 OF THE FOEM, ETC. OF MAKING A WILL. [PT. I. BK. II. The decisions (Z) on the construction of the statute of frauds ap- the wit- pear to make it clear that in the case of the witnesses, as "ubsCTibT^ well as of the testator, (»n) a subscription by mark is by mark: sufficient, notwithstanding the witness be able * to write. See Hand v. James, Com. Eep. 531 ; Croft V. Pawlet, 2 Stra. 1109; Murphy v. Mur- phy, 24 Missou. 526. In Osborn v. Cook, 11 Cush. 532, the only attestation clause was " witnesses," under which the names of the subscribing witnesses were written ; the will was sustained. Chase v. Kittredge, 1 1 Allen, 49, 52. In the case of Fry's Will, 2 R. I. 88, where there was no attestation clause other than the word " witness," one of the subscribing witnesses having de- ceased, upon proof of the handwriting of the subscribing witness and of the testator, it was held to be the prima facie presump- tion that all the statute requisites had been complied with. In Jackson v. Christman, 4 Wend. 277, the court held that from the ►ignatures of the witnesses, all the statute required might be presumed to have been complied with. In Roberts o. Phillips, 4 El. & Bl. 450, it is said, "that it never has been held that a testimonium clause is necessary, or that the witnesses should be described as witnesses; nothing more is required than that the will should be at- tested by the witnesses." In Ela v. Ed- wards, supra, the will was sustained, not- withstanding the entire absence of any at- testation clause. In Conboy v. Jennings, 1 N. Y. Sup. Ct. 622, the attestation clause was simply : " Witness by us this 10th day of January, 1873." It was proved that the testator told the witnesses that the paper in question was his will, and re- quested them to sign as witnesses, which they did, and the will was held to be properly executed. In Chaffee u. Baptist Missionary Convention, 10 Paige, 85, Wal- worth, chancellor, said : " The statute does not require an attestation clause show- ing that the proper legal formalities were complied with. But prudence requires that a proper attestation clause should be drawn, showing that all the statute formalities were complied with, not only as presump- tive evidence of the fact In case of the [94] death of the witnesses, or where from lapse of time they cannot recollect what did take place, but also for the purpose of showing that the person who prepared the will knew what the requisite formalities were, and therefore gave the proper information to the testator, or saw that they were com- plied with if he was present. To impress the more strongly upon the memory of the witnesses the important fact that all the legal forms requisite to the due execu- tion of the will were complied with, at the time when they subscribed their names as witnesses to such execution, the safer course always is to read over the whole of the attestation clause, in the presence and hearing of the witnesses and of the testator. And where the person executing the will is not known to the subscribing witnesses to be capable of reading and writing, especially if he executes the will as a marksman, it would be proper that the whole will should be deliberately read over to him in the presence and hearing of the witnesses, and the fact of such reading should be stated in the attestation clause ; or at least the witnesses ought, by in- quiries of the illiterate testator himself, to ascertain the fact that he was fully ap- prised of the contents of the instrument which he executed and published as his will, as well as that he was of competent understanding to make a testamentary dis- position of his property. All these, how- ever, are matters of precaution and pru- dence, to prevent any well-founded doubt upon matters of fact; and where they are neglected, it does not necessarily render the will invalid, if the court or jury which is to pass upon the question of its validity is satisfied, upon the whole evidence, that the will was duly executed, and that the testator understood its contents."] [1) Harrison v. Harrison, 8 Ves. 185; Addy V. Grix, 8 Ves. 504. (m) See Baker v. Dening, ante., 75. CH. II. § II.] OF THE ATTESTATION OF WILLS. 127 And these decisions have been followed, in the ecclesiastical court, in the construction of the new act. (n) So where a will or with a was attested bj one witness in his own handwriting, and hand: he also held and guided the hand of a second witness, who could not write or read, and in this way the second witness's name was written as attesting witness, the testator having desired the two to attest ; this was held a sufficient attestation under the new stat- ute, (o) * But an attestation by sealing will not satisfy ^^^ ^^^ ^^ the statute. (^) seal: (n) In the Goods of Ashmore, 3 Curt. 756. (In this case the two attesting witnesses made their marks, opposite to which respectively the testatrix wrote their names, and by mistake a wrong surname of one of them; and Sir H. Jenner Fust held this to be a good at- testation.) See, also, accord. In the Goods of Amiss, 2 Robert. 116; S. C. 7 Notes of Cas. 274 ; [Campbell o. Logan, 2 Bradf. Sur. 90 ; Meehan u. Kourke, 2 Bradf. Sur. 385; Ford D.Ford, 7 Humph. 92 ; Pridgen u. Pridgen, 13 Ired. (N. Car.) 259; Gray J. in Chase v. Kittredge, 11 Allen, 59; Needham u. Needham, Essex Co. Mass. Nov. T. 1802, 11 Allen, 59; Den v. Milton, 7 Halst. 70; Upchurch V. Upchurch, 16 B. Mon, 102; Adams v. Chaplin, 1 Hill Ch. 266; Jackson v. Van Dusen, 5 John. 144 ; Chaffee v. Bap- tist Missionary Convention, 10 Paige, 85 ; Morris v. Kniffin, 37 Barb. 336; Jack- son V. Jackson, 39 N. Y. 153. It must, however, be shown to be the mark of the witness. Collins v. Nichols, 1 Harr. & J. 399.] But in a case where an attesting witness to a will which had been once duly executed, attested a second execution of the same will, by no other act than by writing the word "Bristol" (the name of the city) at the end of her name and the name of the street in which she dwelt (which she had written when she attested the former execution), it was held by Sir H. J. Fust that the latter attestation was insufficient. In the Goods of Trevanion, 2 Robert. 311. See, also, Hindmarsh v. Charlton, 8 H. L. Cas! 160. The same learned judge appears to have previously allowed that the initials of the witnesses may constitute a sufficient subscription and attestation, if made by them for their signatures as attesting the execution. In the Goods of Christian, 2 Robert. 110 ; S.C. 7 Notes of Cas. 265; [Adams u. Chap- lin, 1 Hill (S. Car.) Ch. 265.] Though not when placed in the margin opposite alter- ations in the will, so that their real pur- pose is to identify or attest the alterations, and not to attest the testator's ree,\ecution of the will. In the Goods of Martin, 6 Notes of Cas. 694; S. C. 1 Robert. 712. (o) Harrison v. Elvin, 3 Q. B. 117 ; S. C. 2 G. & D. 769 ; S. P. In the Goods of Frith, 1 Sw. & Tr. 153 ; Lewis v. Lewis, 2 Sw. & Tr. 153 ; [Ex parte Le Roy, 3 Bradf. Sur. 227 ; Adams v. Chaplin, 1 Hill Ch. 266 ; Harrison o. Rowan, 3 Wash. 585 ; Lewis v. Lewis, 6 Serg. & R 496 ; Clifton V. Murray, 7 Geo. 564 ; Reynolds V. Reynolds, 1 Spears, 256 ; Ray v. Hill, 3 Strobh. 297.] But the one witness can- not subscribe for the other. In the Goods of "White, 2 Notes of Cas. 461 ; [Ex parte Le Roy, 3 Bradf. Sur. 227; Horton v. Johnson, 18 Geo. 396.] The desire that another should sign for a witness cannot be construed to be a subscription by that witness, even though he cannot write ; for he might make his mark. In the Goods of Cope, 2 Robert. 335. So in a case where the two attesting witnesses, who were able to write, held the top of the pen whilst another person (the drawer of the (p) In the Goods of Byrd, 3 Curt. 117. [95] 128 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. It has been decided several times that, in the case of a witness, an acknowledgment by him of his previously subscribed edgment of signature is not a sufficient compliance with this act. (cf) not°suffi- Accordingly, where an attesting witness to a will, on the "^°'" reexecution thereof by the testator, merely traced over his previous signature with a dry pen. Sir H. Jenner Fust held that this amounted to no more than to an acknowledgment of the signature, which had been held not to be a sufficient compliance there must with the statute, inasmuch as it requires the witness to the^name Subscribe the will, (r) And it is now settled by the de- of the wit- ness or a mark in- teniiing to represent it: cision of the house of lords, (s) that to make a valid sub- scription and attestation there must be either the name of the witness, or some mark intended to represent it. (f) will) wrote their names, Sir H. J. Fust rejected the motion for probate, and ob- served, that where a person's hand is guided, the act Is his own, but that here another person signed the names of the witnesses. In the Goods of Kileher, 6 Notes of Cas. 15. [See Montgomery v. Perkins, 2 Met. (Ky.) 448; Ex parte Le Roy, 3 Bradf. Sur. 227 ; Gray J. in Chase v. Kittredge, 11 Allen, 59 ; Camp- bell V. Logan, 2 Bradf. Sur. 90. But it has been held in some cases that the name of the witness may be written by another at his request and in his presence. Upchurch o. XJpchurch, 16 B. Mon, 102; Jesse V. Parker, 6 Grattau, 57. Bat see Horton v. Johnson, 18 Geo. 396. "A sub- scription of the name or mark of a wit- ness by another person in the presence of himself and the testator might possibly be a compliance with the statute, but, not being in the handwriting of the witness, would create no presumption of a lawful execution and attestation, without affirma- tive evidence that it was so made." Gray J. in Chase v. Kittredge, 11 Allen, 59. The deceased executed his will by his mark in the presence of two witnesses, one of whom also made a mark in attesta- tion of the signature of the deceased. The second witness then wrote the names of the deceased and the witness opposite their respective marks, and also the word wit- ness, but be did not subscribe hia own name. The execution was held to be in- valid. In Eynon, L. E. 3 P. & D. 92 ; Ex parte Le Eoy, 3 Bradf. Sur. 227.] (q) Moore v. King, 3 Curt. 253, and the other cases collected, ante, 91, note (x). [But it has been held that a witness may adopt a signature already made as well as to write it anew. Pollock v. Glassel, 2 Grattan, 439. And in Sturdivant v. Bir- chett, 10 Grattan, 67, it was decided, that where the witnesses to a will wrote their names in an adjoining room, where the testator could not see them, and imme- diately took the will, open in the hand of one of them, to the testator, and . said, " Here is your will witnessed," pointing to the names, while all were present, this was. tantamount to a subscribing of their names in the presence of the testator. Two judges dissented.] (r) Playne v. Scriven, 1 Robert. 772 ; 7 Notes of Cas. 122 ; [Re Cunningham, 1 S. &S. 132; 29L. J. Prob. 71.] (s) Hindmarsh v. Charlton, 8 H. L. Cas. 160, affirming the decision of Sir C. Cresswell, 1 Sw. & Tr. 433. if) But where the witness subscribed " Servant to Mrs. Sperling," but without any name ; this was held a sufficient at- testation. In the Goods of Sperling, 3 Sw. & Tr. 272. See, further, as to what is a sufficient attestation, Griffiths v. Grif- fiths, L. E. 2 P. & D. 300. CH. II. § II. J OF THE ATTESTATION OF WILLS. 129 It was further held in that case that a correction of an error in the previous writing of his name, or his acknowledgment of it, or the adding a date to it, will not be sufficient for this purpose. The act, though it requires that the testator shall sign the will at the foot or end of it, is silent as to the part of the in- . strument where the witnesses shall subscribe. It was part of the said by Dolben J. in Lea v. Libb, (m) with reference must sub- to the statute of frauds, that if a will is written on dif- ^"^'^ ^' ferent sheets of paper, and each of the three witnesses subscribe on a different sheet, it is a good subscription within that statute. If this be good law, it should seem to be equally applicable to the new statute of Victoria. And it has * been held, accordingly, in several cases in the ecclesiastical court, that it matters not, under that statute, in what part of the will the attesting witnesses sign their names ; provided it appears that the signatures were meant to attest the requisite signature of the testator, (x) The same question has lately been decided, after full consideration, by the court of queen's bench, in the case of Roberts v. Phillips, («/) upon the language of the statute of frauds, which requires that a will of lands shall be "attested and subscribed" by the witnesses. It was thereupon contended, that the primary meaning of the word "subscribed" is written under a.nd that it must here mean writteii under the concluding words of the will, and signature of the tes- tator, and so preventing any spurious additions after the execution ; but the court held that the word " subscribed " might well be un- derstood as merely denoting a signing of the name without any reference to the part of the paper on which the name is to be written ; and that the requisition as to the will being subscribed by the witnesses was complied with, where the witnesses, who saw it executed by the testator, immediately signed their names on any part of it at his request with the intention of attesting it. (z/i) This decision is plainly applicable to the construction of the word " subscribe " in the new statute, (jj^') («) Carth. 37. withstanding they were both written on (x) In the Goods of Davis, 3 Curt. 748 ; the same sheet of paper. In the Goods of In the Goods of Chamney, 1 Robert. 757 ; Taylor, 2 Robert. 411. [Murray v. Murray, 39 Miss. 214.] But (y) 4 El. & Bl. 450. where there were two testamentai'y in- (y^) [Gray J. in Chase w. Kittredge, 11 straments, it was held not sufficient for Allen, 58.] the witnesses to subscribe their names at (y^) [In New York, both the testator the end of the first of them alone, not- and the witnesses must sign at the end of VOL. I. 9 [96] 130 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. No provision is contained in the act as to wills written on sev- ,, . ,. eral sheets. And, therefore, in this respect also, the de- of a will cisions on the construction of the statute of frauds appear several to be authorities ; and they have established that if a sheets: ^jjj ^^ written on several or even separate sheets, and the last alone be attested, the whole will is well executed, pro- vided the whole be in the room, and although a part * may not have been seen by the witnesses ; and that is a question for a jury whether all the papers constituting the will were in the room ; and further, that the presumption is in the affirmative. («) But where a will was signed by the testator and also by two witnesses in the margin of the first four sheets, but in the fifth and last sheet the signature of the testator alone appeared, probate of the will was refused, the court (Sir J. Dodson) being of opinion that the signa- tures on the earlier sheets were intended merely to guard against other sheets being interpolated, and there being nothing to show that the signatures in the margin were intended to attest that sig- nature of the testator which alone would give effect to the paper as a will, (a) Again, the authorities with respect to the statute of frauds ap- in what V^^^ ^^ ^PP^J ^0 til® ii^w act, upon the question, whether attesteT" ^^ unattested will or other paper may be rendered valid Fe^rred to' ^® ^ testamentary disposition, by being referred to and by a will adopted by a will or codicil properly attested. Those the will, and the latter at the request of the himself. It is sufficient if the request be testator. See ante, 87, note (/i) ; Lewis made by the person employed by the tes- V. Lewis, 13 Barb. 17; McDonough v. tator to prepare his will in the presence Loughlin, 20 Barb. 238 ; Watts v. Public and hearing of the testator and without Ad'r City of New York, 4 Wend. 168. objection from him. Bundy w.' McKnight, This request may he implied as well as 48 Ind. 502.] expressed. Brown v. De Selding, 4 Sandf. (z) Bond v. Seawell, 3 Burr. 1773 ; 10 ; Nelson v. McGiffert, 3 Barb. Ch. 158 ; Gregory v. The Queen's Proctor, 4 Notes Doe V. Eoe, 2 Barb. Ch. 200 ; Seguine v. of Cas. 620, 639 ; Marsh v. Marsh, 1 Sw. & Seguine, 2 Barb. 385 ; Gilbert v. Knox, 52 Tr. 528 ; [Gass i>. Gass, 3 Humph. 278 ; N.Y. 125;Peckt;.Cary, 27N. Y.9;Iluth- WikofF 's Appeal, 15 Penn. St. 281 ; Ela erford v. Rutherford, 1 Denio, 33; Coffin «. Edwards, 16 Gray, 91, 99; Tonnele v. V. Coffin, 23 N. Y. 9.] So in Arkansas, Hall, 4 Comst. 140 ; Rees u. Rees, L. R. Rev. St. Ark. c. 157, § 4. In Indiana, the 3 P. & D. 84.] witnesses to a will must attest and sub- (a) Ewen n. Franklin, Dea. & Sw. 7. scribe it in the presence of the testator [See Conboy u. Jennings, 1 N. Y. Sup. and at his request. But it is not impera- Ct. 622, cited ante, 80, note (d) ; Rees ti. tlve that the request should proceed di- Rees, L. R. 3 P. & D. 84.] rectly and immediately from the testator [97] CH, II. § II.J OF THE ATTESTATION OF WILLS. 131 authorities have established, that if the testator, in a will <"■ codicil Qulv 6X6— or codicil or other testamentary paper duly executed, re- cuted be- fers to an existing unattested will or other paper, the in- pan'^o* it. strument so referred to becomes part of the will. (J) But the ref- (6) Habergham v. Vincent, 2 Ves. jun. 228; Utterton v. Robins, 1 Ad. & EI. 423 ; Doe v. Evans, 1 Cr. & M. 42. For cases decided since the new act in con- formity with these authorities, see In the Goods of Smith, 2 Curt. 796; In the Goods of the Countess of Durham, 3 Curt. 57 ; In the Goods of Dickins, 3 Curt. 60 ; In the Goods of Willesford, 3 Curt. 77 ; In the Goods of ClaringbuU, 3 Notes of Cas. 1 ; In the Goods of Bacon, two papers as together containing the will. In the Goods of Duff, 4 Notes of Cas. 474. See, also, Jordcn v. Jorden, 2 Notes of Cas. 388. The principles and practice, as to incorporating in the probate of wills of personalty papers sufficiently referred to by such wills but not per se testamentary, are fully discussed and explained in the judgment of Dr. Lush- ington, in Sheldon v. Sheldon, 1 llobert. 81 ; [IjI the Goods of Lord Howden, 43 3 Notes of Cas. 644 ; In the Goods of L. J. (P. & M. ) 26 ; In the Goods of As- Smartt, 4 Notes of Cas. 38 ; Swete v. tor, L. B. 1 P. Div. 150 ; post, 107, note Pidsley, 6 Notes of Cas. 189 ; In the (x).] The state of the law on this sub- Goods of Dickin, 2 Robert. 298 ; In the ject is very unsatisfactory, especially in Goods of Hally, 5 Notes of Cas. 510 ; In cases where the paper referred to is in the the Goods of Ash, Dea. & Sw. 181 ; In hands of another party who will not part the Goods of Stewart, 3 Sw. & Tr. 192 ; with it, and the court has no power to In the Goods of Gill, L. R. 2 P. & D. 6 ; enforce its production. See, further, on [Wikoff's Appeal, 15 Penn. St. 290; Chambers v. M'Daniel, 6 Ired. (N. Car.) 226 ; Loring v. Sumner, 23 Pick. 98 ; Dewey J. in Thayer v. Wellington, 9 Al- len, 292 ; Wilbar v. Smith, 5 Allen, 194 ; Johnson v. Clarkson, 3 Rich. Eq. 305 ; Tonnele u. Hall, 4 Comst. 140 ; Beall v. Cunningham, 3 B. Mon. 390 ; Harvey v. Chouteau, 14 Missou. 687 ; Wood v. Saw- yer, Phill. (N. Car.) Law, 251.] Where a will (dated in 1841) revoking all former wills referred to a clause in a former will. Sir H. Jenner Fust refused to grant pro- bate of so much of the former will as was necessary to explain the latter will. In the Goods of Sinclair, 3 Curt. 746. However, where a will expressly annull- ing all former wills nevertheless referred to prior will put up in the same box with the present, " that in so far as any of the provisions therein contained may be "applicable to existing circumstances at the time of my death, they may be carried into effect, and I recommend them accord- ingly with this view to the consideration of my executors," the same learned judge held that probate must be taken of the this subject. In the Goods of Dickins, 3 Curt. 60; In the Goods of Darby, 4 Notes of Cas. 427; In the Goods of Pewt- ner, 4 Notes of Cas. 479 ; In the Goods of Limerick, 2 Robert. 313 ; In the Goods of Battersea, lb. 439. It should seem that the court may exercise a discretion in the matter, according to the exigencies of the case. In the Goods of Lord Lans- downe, 3 Sw. & Tr. 184; In the Goods of Dundas, 32 L. J. (N. S.) P. M. & A. 165 ; In the Goods of Sibthorpe, 1 L. R. 1 P. & D. 106. [In Phelps v. Robbins, 40 Conn. 250, the court were strongly in- clined to the opinion that under the stat- ute of Connecticut directing as to the mode of executing and attesting wills, pa- pers referred to in a will, which are not de- scriptive or explanatory in their character, of property given by the will, but contain instructions with regard to the disposi- tions of the property, cannot be admitted and considered as a part of the will. See Tonnele v. Hall, 4 Comst. 146 ; Langdon V. Astor, 3 Duer, 477; S. C. 16 N. Y. 9 ; Van Cortland v. Kip, 1 Hill, 590 ; Thompson v. Quimby, 2 Bradf Sur. 449.] 132 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. erence * must be distinct, so as, with the assistance of parol evi- dence when necessary and properly admissible, to exclude the pos- sibility of mistake ; (c) and the paper referred to must be already written, (d} Accordingly, in De Zichy Ferraris v. Lord Hert- ford, (e) where a testator by will, duly executed, directed his exec- utors to, pay legacies which he should give * by any testamentary writing signed by him, whether witnessed or not, it was held that such a clause could not give effect to legacies bequeathed by an un- attested paper made after the new act came into operation. Again, in the same case, it appeared that the testator, before January 1, 1838 (at which date the new act came into operation) had made a will and several codicils, some duly executed, others only signed by the testator. After January 1, 1838, he made and signed a codicil (B), but the same was not duly attested : afterwards, by a codicil (C), duly executed and attested, he ratified and confirmed his will and " codicils." And it was held that the unattested codicil (B) was not so identified with the duly attested codicil (C) as to be ratified by, or incorporated with it ; the word " codicils " being more completely and properly applicable to the codicils which had been m^de before January 1, 1838. (/) But in Ingoldby v. In- goldby, (^) where a testator made a codicil to his will in 1845, attested by one witness, and the day before his death dictated a paper (which was afterwards duly executed according to the new act) as " another codicil to my will," without more specifically re- ferring to the defectively executed instrument, it was held that both codicils were entitled to probate ; and Sir H. Jenner Fust distinguished, in delivering his judgment, this case from that of (c) Smart v. Prujean, 6 Ves. 565; 1 Goods of "Watkins, L. R. 1 P. &D. 19; Cr. & M. 42 ; Dillon v. Harris, 4 Bligh In the Goods of Dallow, L. E. 1 P. & D. N. S. 321 ; 1 Ad. & El. 423; Gordon v. 189. Reay, 5 Sim. 274 ; In the Goods of Soth- (d) Wilkinson v. Adam, 1 Ves. & B. eron, 2 Curt. 831 ; Collier v. Langebear, 445 ; 1 Ad. & El. 423 ; [Phelps v. Eob- l Notes of Cas. 369 ; In the Goods of Ed- bins, 40 Conn. 250.] wards, 6 Notes of Cas. 306 ; In the Goods (e) 3 Curt. 468; S. C. on appeal, 4 of Lady Pembroke, Dea. & Sw. 182; In Moore P. C. 339, nomine Croker v. Lord the Goods of Drummond, 2 Sw. & Tr. 8 ; Hartford. In the Goods of AUnntt, 3 Sw. &Tr. 167; (/) See, also, accord. Haynes i,. Hill, In the Goods of Brewin, 3 Sw. & Tr. 473 ; 1 Robert. 795 ; S. C. 7 Notes of Cas. 256 ; Dickinson v. Stidolph, 11 C. B. N. S. In the Goods of Phelps, 6 Notes of Cas. 341 ; Van Straubenzee v. Morick, 3 Sw. & 695 ; In the Goods of Hakewell, Dea. & Tr. 6. See, also. In the Goods of Suther- Sw. 14 ; In the Goods of Mathias, 3 Sw. land, 35 L. J., P. M. & A. 82 ; In the & Tr. 100. Goods of Lady Truro, lb. 89 ; In the (.9) 4 Notes of Cas. 493. [98] [99] CH. n. § II.] OF THE ATTESTATION OF WILLS. 133 Lord Hertford, where there were codicils duly executed and codi- cils not duly executed ; there being in the present case only one paper which came under the description of codicil, and no other paper to which the testator could have referred under that descrip- tion. The decision in Lord Hertford's case of the former of the points above mentioned appears to have applied, under the , .jj existing law, to testamentary dispositions of all kinds, not create a the doctrine which had been already established as to de- disposition vises of * real estate under the statute of frauds, viz, that unattested a testator cannot by his will prospectively create for P^P"' himself a power to dispose of his property by an instrument not duly executed as a will or codicil. (K) The doctrines above stated as to the incorporation of unattested papers with duly executed wills and codicils were fully confirmed, and very many of the cases which are collected in the notes to the foregoing pages vrere cited and discussed by Lord Kingsdown in delivering the opinion of the privy council in the case of Allen v. Mad dock, (i) and his lordship proceeded to state the law as fol- lows : " The result of the authorities, both before and parol evi- since the late act, appears to be, that where there is a ml"sfbi*e "to reference in a duly executed testamentary instrument to j.^g"^'g[^j. another testamentary instrument, by such terms as to e°<=e. make it capable of identifi.cation, it is necessarily a subject for parol evidence, and that when the parol evidence sufficiently proves that, in the existing circumstances, there is no doubt as to the in- strument, it is no objection to it that, by possibility, circumstances might have existed in which the instrument referred to could not have been identified." (Jc) (h) Johnson v. Ball, 5 De 6. & Sm. 85, (i) 11 Moore P. C. 427, 461. See, also, 91 ; [Thayer u. Wellington, 9 Allen, 283. S. C. coram Sir J. Dodson, Dea. & Sw. See Dawson v. Dawson, 1 Cheves Eq. 325 ; Anderson v. Anderson, L. R. 13 Eq. 148; Johnson v. Clarkson, 3 Rich. Eq. Ca. 381. 305; Tonnele v. Hall, 4 Comst. 140; (k) See accord. In the Goods of Greves, Chambers v. McDaniel, 6 Ired. Law, 226. 1 Sw. & Tr. 250 ; In the Goods of Al- The fact that the disposition of property, mosnino, 1 Sw. & Tr. 508 ; In the Goods made by the unattested instrument, is to a of McCabe, 2 Sw. & Tr. 478 ; Dick- public charity, does not give to it any inson v. Stidolph, 11 C. B. N. S. 341; greater legal effect, no charity being de- Van Straubenzee v. Monck, 3 Sw. & Tr. clared or indicated in the will. Thayer w. 6; In the Goods of Luke, 34 L. J. (N. S.) Wellington, m6j sw/)ra.] See, also, Briggs P.M. & A. 105; [Phelps w. Robbins, 40 V. Penny, 3 De G. & S. 525. Conn. 250, 272, 273.] [100] 134 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. Where a will referred to two memorandums and only one could ^.„ , be found, it was held that efifect must be given to that Will refer- ' . ° . ring to two which was found, — for either the ordinary presumption dums and must prevail, that the missing paper was destroyed by oniycan"be til© testatrix animo revooandi, or the principle must be *°"°'*" applied that the apparent testamentary intentions of a testator are not to be disappointed, merely because he made other dispositions of his property which are unknown by reason of the testamentary * paper which contained them not being forthcom- ing. (0 In acting upon the doctrines established by the authorities Effect of which there has been occasion to cite in the foregoing dence of pages, no little difficulty has occurred with respect to the ingwit-'" evidence given by the subscribed witnesses of the cir- nesses as cumstances attending the attestation, particularly where cumstances the witnesses have been examined for the first time (as of the at- fi -, .Tii-i testation, must very often happen) at a period long after the trans- action. For it may be that they have no recollection at all on the subject, so that they are quite unable to affirm that the will was executed according to the new statute ; or it may be that one af- firms and the other negatives, or that both negative, a compliance with the statute. The result of the cases in the prerogative court on this subject appears to be, that although, if a party be put to proof of a will, he must examine the attesting witnesses, (P) it is not absolutely necessary, for the validity of the will, to have their positive affirmative testimony that the will was actually signed or actually acknowledged in their presence before they subscribed, (m) For if the will on the face of it appears to be duly executed, the presumption is " omnia esse rite acta ; " even though, there should be an attestation clause, omitting to state some essential particu- lar, e. g. that the will was signed in the joint presence of bothi (I) Dickinson «. Stidolph, 11 C. B. N. bate until the will was found. In re S. 341 ; [Wood V. Sawyer, Phill. (N. Car.) Greig, L. E. 1 P. & D. 72. See ante, 8, Law, 251. A testator, by a paper pur- note (?).] porting to be a codicil to his will, be- (P-) [Post, 346, and note (cP), 347 ; qneathed the balance at his banlcer's to Jackson v. La Grange, 19 John. 386.] his wife. No will was found, though one (m) Blake v. Knight, 3 Curt. 547; had been in the testator's possession pre- Gregory v. The Queen's Proctor, 4 Notes vious to the date of the codicil; it was of Cas. 620; Thompson v. Hall, 2 Rob- held that the codicil was independent of ert. 426. [See post, 103, note (w), 346, the will, and should be admitted to pro- 347, and notes.] [101] CH. II. § II.J OF THE ATTESTATION OF WILLS. 135 witnesses, (n) So in a case where an affidavit was required from the attesting witnesses (there being no attestation clause), as to the due execution of the will under the statute, and one of them deposed that he saw the deceased sign, in the presence of himself and the other witness, but the latter could not recollect whether the deceased signed * her name in his presence or not, probate was allowed to pass on motion, (o) Again, it has been held, that where the attesting witnesses depose contrary to each other (as where one swears that they attested the will in the presence of the testator, and the other that it was attested in another room ; or where one of three attesting witnesses swears that the testator signed in their presence, and the two other swear that he did not), the court is not thereupon bound to pronounce against the validity of the will ; but may either examine other witnesses (who were present at the execution though they did not subscribe the will) in order to arrive at the truth, ( jo) or may, upon the mere cir- cumstances, give credence to the affirmative rather than to the negative testimony, (g) And even where both the attesting wit- nesses profess to remember the transaction, and state facts which show that the will was not duly executed (as that the testator did not make or acknowledge his signature in their joint presence, or the like), not only may this negative evidence be rebutted by the testimony of other witnesses, or by the proof of circumstances showing that the attesting witnesses are not to be credited ; (r) but in this case also the court may justly come to a conclusion from the facts and circumstances which the attesting witnesses them- selves state, that their memory fails them ; and so the will may (n) Burgoyne v. Showier, 1 Robert. 5. (o) In the Goods of Hare, 3 Curt. 45 ; See, also. Croft o. Pawlett, 2 Stra. 1109; In the Goods ofAttridge, 6 Notes of Cas. Hands v. James, Com. Rep. 531 ; Doe u. 597 ; [Trustees of Auburn Theological Davies, 9 Q. B. 648 ; Leech v. Bates, 1 Seminary v. Calhoun, 62 Barb. 381 ; Nel- Eobert. 714 ; S. C. 6 Notes of Cas. 699. son v. McGifiert, 3 Barb. Ch. 158.] See, also, In the Goods of Leach, 6 Notes {p} Young v. Richards, 2 Curt. 371. of Cas. 92; Hitch v. Wells, 10 Beav. 84; {q) Chambers v. The Queen's Proctor, [Jauncey v. Thome, 2 Barb. Ch. 40; 2 Curt. 433 ; Gove v. Gawen, 3 Curt. 151. Jackson v. La Grange, 19 John. 386 ; Gregory v. The Queen's Proctor, 5 Notes Chaffee v. Baptist Missionary Conven- of Cas. 620 ; Brenchley v. Lynn, 2 Rob- tion, 10 Paige, 85 ; Peebles u. Case, 2 ert. 441. Bradf. Sur. 226, 240 ; Clarke v. Dunna- (r) See accord. Austen v. Willes, Bull, vant, 10 Leigh, 13; Griffith v. Griffith, 5 N. P. 264; Pike v. Badmering, cited 2 B. Mon. 511 ; Scribner v. Crane, 2 Paige, Stra. 1096, in Rice v. Oatfield, />os<, pt. i. 147 ; Dunlap v. Dunlap, 4 Desaus. 305.] bk. iv. ch. iii. § v. [102] 136 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. be admitted to probate, notwithstanding their testimony. («) Thus, in Cooper v. Bockett, (i) a will was held by Sir H. Jenner Fust, upon the circumstances of the case, to haye been * signed be- fore the witnesses subscribed, although one witness deposed that the testator signed after he and his fellow witness had subscribed, and the other witness deposed that the part of the will where the signature of the testator was written was blank when she, the wit- ness, subscribed ; and this decision was affirmed in the privy council. (#) On the same principles several subsequent cases of a similar character have been decided, which will be found col- lected in the note below, (w) Where, however, the attesting wit- (s) 3 Curt. 663. See, also, lb. 547 ; 1 Robert. 10; Baylis v. Sayer, 3 Notes of Cas. 22 ; Shield v. Shield, 4 Notes of Cas. 647; [post, 103, note (w), 346,347 ; Jatin- cey V. Thorne, 2 Barb. Ch. 40 ; Peebles V. Case, 2 Bradf. Sur. 226, 240 ; Jackson V. Christman, 4 Wend. 277; Dudleys a. Dudleys, 3 Leigh, 436 ; Chaffee v. Bap- tist Missionary Convention, 1 Paige, 85 ; Lawrence v. Norton, 45 Barb. 448 ; Rush V. Purnell, 2 Harrihg. 448 ; Rigg v. Wil- ton, 13 111. 15.] («) 3 Curt. 648 ; S. C. 2 Notes of Cas. 391. (u) 4 Notes of Cas. 685 ; 4 Moore P. C. 419. (w) Foot V. Stanton, Dea. & Sw. 19; In the Goods of Thomas, 1 Sw. & Tr. 255 ; In the Goods of Holgate, 1 Sw. & Tr. 261 ; Trott v. Skidmore, 2 Sw. & Tr. 12; Lloyd v. Roberts, 12 Moore P. C. 158; Gwillim v. Gwillim, 3 Sw. & Tr. 200 ; Vinnieombe v. Butler, 3 Sw. & Tr. 580 ; In the Goods of Rees, 34 L. J., P. M. & A. 56 ; Wright u. Rogers, L. R. 1 P. & D. 678 ; Beckett c/. Howe, L. R. 2 P. & D. 1. [In Tilden v. Tilden, 13 Gray, 110, a will was offered for probate, which was not in the handwriting of the testator, but was signed by him, with the usual attestation clause added, signed by three witnesses; one of the witnesses testified that he and the second witness signed the will at the same time, in the presence and at the request of the testator, without [103] reading it or being told that it was a will, and that the testator directed him where to put his name, but did not himself sign it in his presence, nor say the signature was his. The second witness testified that the testator said to himself and the first wit- ness, " Gentlemen, I wish you to witness my signature to my will," and then signed it, and they signed it, and his impression was that the third witness was then pres- ent. The third witness testified that the other witnesses did not sign in his pres- ence; that the testator brought the paper to him, and requested him to witness it, which he did in the testator's presence, but without reading it ; that he thought the names of the other witnesses were then upon it, but he could not say whether the testator's name was ; and that the testator did not sign it in his presence, or say anything about his signature. Dewey J. after reviewing the testimony, said: " In the opinion of the court, the evidence was sufiicient to authorize finding this in- strument to have been duly signed by the testator, and duly attested as his last will and testament." Dewey J. in Ela v. Edwards, 16 Gray, 98, 99, said : " The obvious policy of the law, as heretofore declared in this commonwealth, has been that no man's will should be defeated through the want of memory on the part of the attesting witnesses to the facts es- sential to a good attestation." See Mont- gomery u. Perkins, 2 Met. (Ky.) 448 ; CH. II. § II.] OF THE ATTESTATION OF WILLS. 137 nesses state facts (not contradicted by other testimony) which demonstrate that the will was not duly executed, and there are no circumstances on which the court can found an inference that the recollection of the witnesses is infirm on the subject, the will must be pronounced against, notwithstanding it should be all in the handwriting of the deceased, and be signed by him and profess to be duly attested, (a;) Finally, it must be borne in mind that a testamentary paper is not entitled to probate, unless the court is satisfied that the names of the alleged witnesses were subscribed on it for the pur- pose of attesting the testator's signature. («/) Lawyer a. Smith, 8 Mich. 411 ; Trustees of Auburn Theological Seminary v. Cal- houn, 62 Barb. 381 ; Dean u. Dean, 27 Vt. 746; Kirku. Carr, 54 Penn. St. 285; ChafEee v. Baptist Missionary Convention, 10 Paige, 85. In Dewey u. Dewey, 1 Met. 349, 353, 354; Dewey J. said: "The question is not whether this witness now recollects the circumstance of the attesta- tion, and can state it as a matter within his memory. If this were requisite, the validity of a will would depend, not upon the fact whether it was duly executed, but whether the testator had been fortunate in securing witnesses of retentive memories. The real question is, whether the witness did in fact properly attest it." Sears v. Dillingham, 12 Mass. 361, 362. In Clarke u. Dunnavant, 10 Leigh, 13, the court said, " that on a question of probate, the defect of memory of the witnesses will not be permitted to defeat the will, but that the court may, from circumstances, pre- sume that the requisitions of the statute have been observed ; and this they ought to presume from the fact of attestation, unless the inferences from that fact are rebutted by satisfactory evidence.'' See Dudleys v. Dudleys, 3 Leigh, 443 ; Lewis o. Lewis, 1 Kernan, 220 ; Nelson v. Mc- Giffert, 3 Barb. Ch. 158; Newhouse v. Godwin, 17 Barb. 236; Cheeney v. Ar- nold, 1 8 Barb. 434 ; Boyd v. Cook, 3 Leigh, 32 ; Smith v. Jones, 6 Rand, 32 ; Vernon V. Kirk, 30 Penn. St. 218 ; Welty v. Welty, 8 Md. 15; Dean v. Dean, 27 Vt. 746; Jackson v. La Grange, 19 John. 386 ; Pate V. Joe, 3 J. J. Marsh. 113; Bailey v. Stiles, 1 Green Ch. 221 ; Gwinn v. Rad- ford, 2 Litt. 137 ; Howard's Will, 5 Mon- roe, 199; Jauncey y. Thorne, 2 Barb. Ch. 40; Peebles v. Case, 2 Bradf. Sur. 226, 240; Welch v. Welch, 9 Rich. (S. Car.) 133 ; Leckey u. Cunningham, 56 Penn. 370. But the rule is different, if the witness is able to recollect that things essential were positively wanting. Barr v. Graybill, 13 Penn. St. 396.] See, further, as to the execution by signature of wills, In the Goods of Swinford, L. R. 1 P. & D. 630. (x) Pennant v. Kingscote, 3 Curt. 642. See, also, 1 Robert. 10 ; Beach v. Clarke, 7 Notes of Cas. 120; Croft v. Croft, 34 L. J., P. M. & A. 44; [Barr v. Graybill, 13 Penn. St. 396.] (y) In the Goods of Wilson, L. R. 1 P. & D. 269 ; Eckersley v. Piatt, L. R. 1 P. & D. 281 ; [ante, 8S, note (o).] 138 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. SECTION III. The Form of a Will " There is nothing that requires so little solemnity," said Lord Hardwicke, (z) "as the making of a will of personal * estate, ac- cording to the ecclesiastical laws of this realm ; for there is scarcely Testamen- any paper writing which they will not admit as such." (2^) noTneTe" Although much greater strictness seems to have pre- sary- vailed in earlier times, it has been decided in a great variety of modern instances, that it is not necessary that an instrument should be of a testamentary form, in order to operate as a will. Indeed, it may be considered as a settled point, that the form of a paper does not afEect its title to probate, provided it is the intention of the deceased that it should operate after his death, (a) Thus, a deed poll, or an indenture, (6) a deed of 551 ; Dunn v. Bank of Mobile, 2 Ala. 152 ; Matter of Wood, 36 Cal. 75 ; Mil- lege V. Lamar, 4 Desaus. 523 ; M'Gee v. M'Cants, 1 McCord, 517; Johnson v. Yancey, 20 Geo. 707 ; Symmes v. Arnold, 10 Geo. 506; Wilbar v. Smith, 5 Allen, 194; Leathers v. Greenacre, 53 Maine, 561 ; Lyies v. Lyles, 2 Nott & McC. 531. Whether a writing is a will, depends upon its contents, and not upon any declaration of the maker that it is a will when he ex- ecutes it. Patterson v. English, 71 Penn. St. 454. A paper, in the form of a power of attorney, may be admitted to probate, if intended to operate as a testamentary disposition of property. Rose v. Quick, 30 Penn. St. 225.] (6) Habergham v. Vincent, 2 Ves. jun. 231 ; Peacock v. Monk, 1 Ves. sen. 127 ; Tomkyns v. Ladbrooke, 2 Ves. sen. 591 ; Shingler v. Pemberton, 4 Hagg. 356 ; Con- sett V. Bell, 1 Y. & Coll. C. C. 569. See, also. Attorney General v. Jones, 3 Price, 360 ; Vin. Abr. tit. Devise, A. 2, 4 ; [Hix- on V. Wytham, 1 Ch. Cas. 248 ; S. C. Finch, 195 ; Green v. Proude, 3 Keb. 310 ; S. C. 1 Mod. 117 ; Habergham v. Vincent, 2 Ves. jun. 204 ; S. C. 4 Bro. C. C. 355 ; Evans V. Smith, 28 Geo. 98 ; Gage v. Gage, 12 N, H. 371 ; Sheppard v. Nabors, 6 Ala. 634.] (2) In Ross V. Ewer, 3 Atk. 163. («!) [The date Is not a material part of a will. It may be held valid though it has no date, or a wrong one. Wright v. Wright, 5 Ind. 389.] (a) By Sir John NichoU, in Masterman V. Maberly, 2 Hagg. 248, and by Buller J. in Habergham 0. Vincent, 2 Ves. jun. 231. See, also, Bagnall v. Downing, 2 Cas. temp. Lee, 3, and Sir J. NichoU's judgment in Glynn v. Oglander, 2 Hagg. 432, and in the King's Proctor v. Daines, 3 Hagg. 220, 221 ; [Matter of Belcher, 66 N. Car. 51.] See, also, Eyan v. Daniel, 1 Y. & Coll. C. C. 60 ; Doe v. Cross, 8 Q. B. 714 ; [Patterson v. English, 71 Penn. St. 454 ; Succession of Ehrenberg, 21 La. Ann. 280 ; In re Wood's Estate, 36 Cal. 75; Robinson v. Schly, 6 Geo. 515; Walker v. Jones, 23 Ala. 448 ; Clingan v. Micheltree, 31 Penn. St. 25 ; Means v. Means, 5 Strobh. 167 ; Ragsdale v. Booker, 2 Strobh. Eq. 348; Brown v. Shand, 1 McCord, 409 ; Wheeler v. Durant, 3 Rich. Eq. 452 ; Jacks v. Henderson, 1 Desaus. 554 ; Jackson v. Jackson, 6 Dana, 657 ; Millican v. Millican, 24 Texas, 426 ; Allison V. Allison, 4 Hawks, 141 ; Carey V. Dennis, 13 Md. 1; Rohrer v. Stehman, 4 Watts, 442 ; Mosser v. Mosser, 32 Ala. [104] CH. II. m.} THE FORM OF A WILL. 139 gift, ((?) a bond, (cZ) marriage settlements, (e) letters, (/) drafts on * bankers, (^) the assignment of a bond by indorsement, (A) receipts for stock and bills indorsed " for A. B." (z) an indorse- ment on a note, " I give this note to C. D." (^) promissory notes, and notes payable by executors to evade the legacy duty, (Z) have (c) Thorold v. Thorold, 1 Phillim. 1, and the cases there cited ; Ousley v. Car- roll, cited by Lord Hardwicte in Ward V. Turner, 2 Ves. sen. 440; Attorney General v. Jones, 3 Price, 368; [Gil- ham V. Mustin, 42 Ala. 365; Hall v. Bragg, 28 Geo. 330 ; Watkins v. Dean, 10 Yerger, 321.] Bnt see, also, Tompson v. Browne, 3 My. & K. 32 ; Sheldon v. Shel- don, 1 Robert. 81, 83 ; Majoribanks v. Hovenden, I Drury, 11, coram Sugden C. ; In the Goods of Webb, 3 Sw. & Tr. 482. [An instrument may be a deed or other contract in part, and a will as to the other part. Eobinson u. Schly, 6 Geo. 515 ; Taylor v. Kelly, 31 Ala. 59.] (d) Mastermanu. Maberly, 2 Hagg. 235. (e) Passmore v. Passmore, 1 Phillim. 218, in Sir J. Nicholl's judgment; Mar- nell ... Walter, T. T. 1796, cited in 2 Hagg. 247, by Sir John NichoU. See, also, In the Goods of Knight, 2 Hagg. 554; [Hogg V. Lashley, stated 3 Hagg. 415, note.] (f) Habberfield v. Browning, 4 Ves. 200, note ; Eepington u. Holland, 2 Gas. temp. Lee, 106 ; Passmore v. Passmore, 1 Phillim. 218 ; Drybutter v. Hodges, E. T. 1793, cited by Sir John Nicholl in 2 Hagg. 247; Denny v. Barton, 2 Phillim. 575; Manly v. Lakin, 1 Hagg. 130 ; In the Goods of Dunn, 1 Hagg. 488 ; In the Goods of Milligan, 2 Robert. 108 ; S. C. 7 Notes of Gas. 271 ; In the Goods of Parker, 2 Sw. & Tr. 375 ; In the Goods ofMundy, 2 Sw. & Tr. 119; Herbert u. Herbert, Dea. & Sw. 10 ; [Boyd o. Boyd, 6 Gill & J. 25; Morrell u. Dickey, 1 John. Ch. 153; Leathers v. Greenacre, 53 Maine, 561. A paper written somewhat in the form of a letter, which 'stated, " If I should not come to you again, my son shall pay, &c." it having been proved that the writer went to Kentucky and that he returned and lived for several vreeks there- after, it was held that inasmuch as the writer had returned before his death, the paper could not be admitted to probate as his last will. Wagner v. M'Donald, 2 Harr. & J. 346. To the same effect is Todd's Will, 2 Watts & S. 145, where a somewhat similar informal paper was refused probate. The opinion of Chief Justice Gibson, in this last case is instruc- tive on the point.] Where the language is, " I appoint you my executor, &c." without naming any person in the body of the letter, probate will be granted to the person named in the address super- scribed on the outside. In the Goods of Wedge, Prerog. M. T. 1842, 2 Notes of Cas. 14 ; In the Goods of Taylor, Prerog. M. T. 1845, 4 Notes of Cas. 290. (g) Bartholomew o. Henley, 3 Phillim. 317; Gladstones. Tempest, 2 Curt. 650; Walsh V. Gladstone, 1 Phill. Ch. C. 294 ; Jones . Gordon, 39 Vt. Ul.] But see Frederick v. Hall, 1 Ves. jun. 396. (u) Glynn v. Oglander, 2 Hagg. 428 ; [107] The King's Proctor v. Daines, 3 218; Sbingler v. Pemberton, 4 Hagg. 359. See, also, Tompson v. Browne, 3 My. & K. 32 ; Fletcher o. Fletcher, 4 Hare, 67 ; [Hamilton v. Peaces, 2 Desaus. 92 ; Eobey V. Hannon, 6 Gill, 463; Thompson v. Johnson, 19 Ala. 59.] (x) Sandford v. Vaughan, 1 Phillim. 39, 128; Harley u. Bagshaw, 2 Phillim. 48 ; Masterman v. Maberly, 2 Hagg. 235 ; Beauchamp v. Lord Hardwicke, 5 Ves. 280; 8 Vin. Abr. Devise, A. 3; Hitch- ings V. Wood, 2 Moore P. C. 355 ; In the Goods of Luffman, 5 Notes of Cas. 183; Foley u. Vernon, 7 Notes of Cas. 119 ; [Forman's Will, 54 Barb. 274 ; S. C. 1 Tuck. (N. Y. Sur.) 205; Wikoff's Ap- peal, 15 Penn. St. 281 ; Negley v. Gard, 20 Ohio, 310 ; Tonnele v. Hall, 4 Comst. 140; Phelps v. Eobbins, 40 Conn. 250, 271 ; Van Wert v. Benedict, 1 Bradf. Sur. 114.] Where probate is granted of two or more testamentary papers, as together containing the last will of the deceased, it is the practice to make the grant to all CH. 11. § IV. J THE LANGUAGE OF A WILL. 143 * SECTION IV. The Language of a Will. The rules of ecclesiastical courts are not more scrupulous with respect to the language, than the nature, of instruments Language which they allow to operate as testamentary. It is not "* a testa- held necessary that the directions contained in them, how paper, property should be disposed of in the event of death, should be in direct and imperative terms : wishes and requests have been deemed sufficient, (y) It has already appeared that instructions the executors named in the several papers. In the Goods of Morgan, L. R. 1 P. & D. 323. [If the testator, in his will, refers expressly and clearly to another paper, and the will is duly executed and attested, that paper, whether attested or not, makes part of the will; hut the instrument re- ferred to must be distinctly and manifestly described and identified, so that the court can act without danger of mistake in con- necting the same with the will, and the reference must be to a paper already writ- ten. Chambers v. McDaniel, 6 Ired. Law, 226 ; Pollock i-. Glassell, 2 Grattan, 439 ; Tonnele v. Hall, 4 N. Y. 140; Bailey v. Bailey, 7 Jones (N. Car.) Law, 44; Gab- rill V, Barr, 5 Penn. St. 441 ; Zimmer- man V. Zimmerman, 23 Penn. St. 375. It was, nevertheless, held in a late case in England, — where an American, by a will and codicils, disposed of his property gen- erally, and by a second will, in which he named separate executors of moneys he had invested in the British funds, and ex- pressed a distinct wish that the British, being this second will, should take effect as a separate testamentary disposition of property independent of and disconnected from his general will, — that it was unnec- essary to incorporate the American will, which was very bulky, in the English pro- bate, but that an authenticated copy of the American will and codicils should be filed in the registry, and a note be added to the English probate to the effect that such copy had been so filed. In the Goods of Astor, L. R. 1 P. Div. 150.] (y) Passmore v. Passmore, 1 Phillim. 218, in Sir J. NichoU's judgment. Gen- erally speaking, when property is given absolutely to any person, and the same person is by the giver " I'ecommended," or " entreated," or " requested," or " wished " to dispose of that property in favor of another, the recommendation, request, or wish, is held imperative and to create a trust. See the cases cited in Knight v. Knight, 3 Beav. 148, and Knight v. Broughton, 11 CI. & Pin. 513. But this rule does not apply, where it appears clearly from the context that the first taker is intended to have a discretionary power to withdraw any part of the fund from the object of the wi.sh or request, or that he is in any way to have an option to control or defeat the desire expressed. Wynne u. Hawkins, 1 Bro. C. C. 179; Malim v. Keighley, 2 Ves. jun. 333 ; 3 Beav. 173, 174; 11 CI. & Fin. 551, 552. See, farther, on this subject. Young v. Martin, 2 Y. & Coll. C. C. 582 ; Cor- poration of Gloucester v. Wood, 3 Hare, 131 ; Knott v. Cottee, 2 Phill. Ch. C. 192 ; White u. Briggs, 15 Sim. 33; Constable V. Bull, 3 De G. & S. 411 ; Williams v. Williams, 1 Sim. N. S. 358 ; Briggs v. Penny, 3 Mac. & G. 546 ; Corporation of Gloucester v. Osborn, 1 H. L. Cas. 272 ; Huskisson v. Bridge, 4 De G. & S. 245 ; Green v. Marsden, 1 Drew. 646; Palmer u. Simmons, 2 Drew. 221 ; Reeves v. Baker, 18 Beav. 372 ; Bernard v. Mars- tell, Johns. 276 ; Eaton v. Watts, L. R. 4 Eq. Ca. 151. [The question to beset- [108] 144 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. for a will may be as operative as a will itself : (s) and that a will made by interrogatories is * valid, (a) So, although if a paper be superscribed " heads of a will, &c." or " plan of a will," the in- ference would be from this, that it was a paper from which it was intended that a more formal will should be drawn out, (b) yet in a case where such an instrument was dated, and signed, and indorsed " Intended will," and alterations in it afterwards made in a formal manner, and the deceased declared, upon being taken ill, " that he had written the heads of his will, and signed it, and that it would do very well;'''' the paper was established as a will, (c) In Hattatt v. Hattatt, (cZ) an entry in an account book, contain- ing a full disposition of the property, and the appointment of an executor, dated eight months before the testatrix's death (which tied is, whether the testator, by the ex- pression of liis confidence or wishes, in- tended to impose a duty upon the devisee or legatee, or to leave him to act at his discretion. Every case depends upon the construction the court gives to the lan- guage of the will. Negroes u. Plummer, 17 Md. 165, 176; Bull v. Bull, 8 Conn. 47; Gilbert v. Chapin, 19 Conn. 342; Harper v. Phelps, 21 Conn. 257 ; Warner V. Bates, 98 Mass. 274, 277 ; Whipple v. Adams, 1 Met. 444 ; Homer v. Shelton, 2 Met. 194, 206; Collins v. Carlisle, 7 B. Mon. 14; Coate's Appeal, 2 Barr, 129; Pennock's Estate, 20 Penn. St. 268; Harrison v. Harrison, 2 Grattan, 1 ; Ellis .-.Ellis, 15 Ala. 296; Steele v. Livesay, 11 Grattan, 454; Van Amee v. Jackson, 35 Vt. 173 ; Shepherd v. Nottidge, 2 J. & H. 766; Bonser v. Kinnear, 2 Giff. 195 ; Barrs o. Fewkes, 12 W. R. 666; 13 W. R. 987 ; Lewin Trusts {5th Eng. ed.), 104 etseq.; McKonkey's Appeal, 13 Penn. St. 253; 1 Jarm an Wills (3d Eng. ed.), 364 et seq. ; Knight o. Boughton, 11 CI. & Fin. (Am. ed.) 513, note (1); Wells v. Doane, 3 Gray, 201 ; Brunson v. Hunter, 2 Hill Ch. 490 ; Hart v. Hart, 2 Desaus. 83 ; Van Duyne v. Van Duyne, 1 McCarter, 405 ; Burt v. Herron, 66 Penn. St. 402 ; Mc- Ree 1/. Means, 34 Ala. 364 ; Lines v. Dar- den, 5 Florida, 74 ; Lucas v. Lockharfc, 10 Sm. & M. 470 ; Ingram v. Fraley, 29 Geo. [109] 553 ; Dominick v. Sayre, 3 Sandf. 560 ; Withers v. Yeadon, 1 Rich. Eq. 324. The word "will " is imperative and not prec- atory. McRee v. Means, 34 Ala. 364. A clause in a will, expressing the testa- tor's " will and intention that W. may dispose of the furniture, plate, pictures, and other articles now in my house ab- solutely, as he may deem expedient, in accordance with my wishes as otherwise communicated by me to him," gives W. the absolute property in these articles, even though the will contain a previous residuary bequest to W. for life, with re- mainder over. Wells v. Doane, 3 Gray, 201, 204, and cases cited.] (z) See ante, 70, 71 ; and Habberfield V. Browning, 4 Ves. 200, note, where the instructions were sent in a letter, and the letter established as a will. (a) Swinb. pt. 2, s. 25, pi. 9; Green v. Skipworth, 1 Phillim. 53. But see Cran- vel V. Saunders, Cro. Jac. 497. (6) 1 Phillim. 350. (c) Bone v. Spear, 1 Phillim. 345. [A will must be complete on its face, or, if incomplete, it must appear that it was intended to operate as a will in its un- finished state. Patterson u. English, 71 Penn. St. 454 ; ante, 68-75, and notes.] See, also, the cases collected, post, pt. i. bk. IV. ch. m. § v. ((f) 4 Hagg. 211. CH. II. § IV.J THE LANGUAGE OF A WILL. 145 was sudden), subscribed, and carefully preserved, was pronounced for, and probate decreed, though containing these words, "I in- tend this as a sketch of my will, which I intend making on my return home." In Torre v. Castle, (e) the question was, whether a document was entitled to probate as a part of the testamentary dispositions of Lord Scarborough. It was all in the handwriting of the de- ceased, and was subscribed by him, and dated 11th of October, 1834. At the commencement it was described to be " head of instructions to my solicitor, J. Lee, to add to my will the codicil following." It went on to state what the contents of the codicil were to be. There were initials for several of the legatees, with the words " &c. &c." in many parts of it ; but it concluded in these words : " this is my last will and testament, Scarborough," and was indorsed "Mem"" to J. Lee, — Will — Oct. 11, 1834." Sir H. Jenner Fust pronounced for the validity of this paper, and decreed probate thereof, being satisfied by parol evidence * and the circumstances of the case, that the deceased intended the paper to have full operation, in case anything should happen to him before he had an opportunity of going, or before it was convenient to him to go to Mr. Lee for the purpose of having a more formal instrument prepared. (/) And on appeal to the privy council, the judicial committee affirmed this decision. (^) But it should be remarked, that the paper, in this case, was not regarded as amounting to an actual testamentary disposition, and entitled to probate propria vigore, but as instructions, fixed and final, con- taining the settled intentions of the writer, up to the last moments of his life, and only prevented from being formally carried into execution by his own sudden death. (Ji) It should be observed, that in these cases, where the character of the paper is upon the face of it equivocal, the case is opened to the admission of parol evidence of the testator's intention, as to whether he meant the instrument as memoranda for a future disposition,, or to execute it as a final will, (i) This subject will (c) 1 Curt. 303. (g) Torre v. Castle, 2 Moore P. C. C. (/) See, also, Popple t). Cunison, 1 Add. 133. 377 ; and Barwick v. MuUings, 2 Hagg. (A) Torre t. Castle, 2 Moore P. C. C. 22.5, where a paper commencing, " This is 175. See ante, 70-72. a memorandum of my intended will," was (i) Mathews u. Warner, 4 Ves. 186; admitted to probate. See, also. Price v. 5 Ves. 23 ; Mitchell u. Mitchell, 2 Hagg. Scott, 1 Cas. temp. Lee, 12. 74; Coppin v. Dillon, 4 Hagg. 361 ; Sal- VOL. I. 10 [110] 146 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. be found more fully considered in a subsequent part of this trea- tise. (^) It is immaterial in what language a will is written, whether in Latin, French, or any other tongue, (l) If the testator be a domi- ciled Englishman, the effect of the foreign tongue employed can only be looked at in order to ascertain what are the equivalent expressions in English, (m) * SECTION V. Of the Materials with which a Will may be written, and of the Person who may he the Writer : and herewith of a Will prepared hy a Legatee. There are scarcely any restrictions in the ecclesiastical law, Pencil will, with respect to the materials on which, or by which, a th)ns in*" testamentary document may be executed, (n) Thus, a will. TjyiH or codicil, or any part thereof, may be made or altered in pencil as well as in ink. (o) But when the question is, whethe? the testator intended the paper as a final declaration of his mind, and as testamentary, or whether it was merely pre- paratory to a more formal disposition, the material with which it is written becomes a most important circumstance, (f?) And it has been held that the general presumption and probability are, that where alterations in pencil only are made, they are delibera- tive ; where in ink, they are final and absolute. (c[) mon V. Hays, 4 Hagg. 382 ; Torre v. Cas- terson v. English, 71 Penn. St. 454. But tie, 2 Moore P. C. C. 154, per Bosan- in Bead v. Woodward, C. Pleas Court of quet J. ; ante, 106, note (y). Chester Co. reported 8 Chicago Legal (k) Post, pt. 1. bk. IV. ch. iii. § v. News, it was held that a will written on a (I) Swinb. pt. 4, s. 25, pi. 3. See, as to slate is not valid. 2 Central Law Jour, a will in a foreign language, Fonbert v. 649.] Cresseron, Show. P. C. 194. (p) 1 Phillim. 35 ; Parkin v. Bainbridge, (m) Reynolds o. Konright, 18 Beav. SPhillim. 321 ; Lavender w. Adams, 1 Add. 417. 406. [See Patterson v. English, 71 Penn. (n) Swinb. pt. 4, s. 25, pi. 2. St. 454.] (o) Rymes v. Clarkson, 1 Phillim. 35 ; (?) Hawkes u. Havrkes, 1 Hagg. 322 ; Green v. Skipworth, 1 Phillim. 53 ; Dick- Edward v. Astley, 1 Hagg. 490 ; Ravens- enson v. Dickenson, 2 Phillim. 173 ; In croft v. Hunter, 2 Hagg. 68 ; Bateman v. the Goods of Dyer, 1 Hagg. 219 ; Mence Pennington, 3 Moore P. C. C. 223 ; Fran- V. Mence, 18 Ves. 348. [The question cis v. Grover, 5 Hare, 39 ; In the Goods whether, under the wills act of Pennsyl- of Hall, L. R. 2 P. & D. 256 ; In the vania, a paper written in pencil can be a Goods of Adams, L. R. 2 P. & D. 367. will, was raised, but not decided, in Pat- [111] CH. II. § v.] OF A WILL WRITTEN BY A LEGATEE. 147 By the civil law, if a person wrote a will in his own favor, the instrument was rendered void, (r) That rule has not where a been adopted in its fullest extent by the law of England, J^n'orpre^ which only holds that where the person who prepares the pared by a ■^ _ ... party in his instrument or conducts its execution, is himself benefited own favor: by its dispositions, this circumstance creates a presumption against the act, and renders necessary very clear proof of volition and capacity as well as of a know^ledge by the testator of the contents of the instrument, (s) Nor does the * ecclesiastical law of this realm determine that the act is absolutely void, even •n • 1 • !■ ■ when he is though the person making the will in his own favor is the agent the agent and attorney of the testator ; but the suspicion ney of the is thereby, for obvious reasons, greatly increased. (^) testator. This doctrine has lately been fully considered by the lords of the judicial committee of the privy council, in the case of Barry (r) Dig. lib. 48, 1. 10, s. 15, and lib. 34, s. 8. in the opinion given.] But it must not (s) Paske <,. Ollatt, 2 Phillim. 324 ; In- be understood that the rule is that direct gram v. Wyatt, 1 Hagg. 391 ; Barton v. evidence that the testator knew the con- Robins, 3 Phillim. 456, note; In the Goods tents [of his will] is necessary; circum- of Edwards, 1 Sw. & Tr. 10; [Tomkins v. stantial evidence may be sufficient for this Tomkins, 1 Bailey, 92 ; Duffield o. Mor- purpose. Raworth v. Marriott, 1 My. & ris, 2 Harring. 384; Newhouse v. God- K. 643; [McNinch v. Charles, 2 Rich, win, 17 Barb. 236; Crispell v. Dubois, 4 (S. Car.) 229; Day v. Day, 2 Green Ch. Barb. 393; Beall v. Mann, 5 Geo. 456; (N. J.) 549.] As to the nature and ex- Clark V. Fisher, 1 Paige, 171 ; Hill ... tent of the scrutiny which ought to be Barge, 12 Ala. 687; Breed v. Pratt, 18 instituted into cases of this description. Pick. 115, 117; 1 Jarman Wills (3d Eng. see the learned note of Dr. Phillimore, 1 ed.), 30; Jones v. Godrich, 5 Moore P. C. Cas. temp. Lee, 238, and the cases there C. 16. In Coffin V. Coffin, 23 N. Y. 9, the collected. See, also, Durling v. Loveland, 2 will was sustained, although the person Curt. 225; Wrench W.Murray, 3 Curt. 623. who prepared it for the testator was ap- (t) 4 Hagg. 391 ; Wheeler v. Alder- pointed one of the executors and took a son, 3 Hagg. 587. See, also, Hitching"s v. legacy of a moderate amount under it. In Wood, 3 Moore P. C. C. 355; Croft v. this case the proof of capacity and of free- Day, 1 Curt. 784 ; S. C. nomine Dufaur dom from influence was not entirely free v. Croft, 3 Moore P. C. C. 136. In some from doubt, but the provisions of the will cases the conduct of a professional man showed no want of harmony with the well- who prepared a will has been held fraud- considered wishes and purposes of the tes- ulent, and the will inoperative, by reason tator. In Gerrish v. Nason, 22 Maine, 438, of his allowing the testator to remain in the person who drew the will was named ignorance, which influenced the will in in it as executor, and was a legatee. The favor of himself. See Segrave v. Kirk- testatrix was of doubtful capacity, and did wan, 1 Beat. 157 ; Hindson v. Weatherill, not appear to have known the contents of 1 Sm. & G. 609 ; 5 De G., M. & G. 301 ; the paper she had executed. The court Walker «. Smith, 29 Beav. 394. See, pronounced against the will, although the also, Bulkeley v. Wilford, 2 CI. & F. 102 ; fact that the person who drew the will Walkers v. Thorn, 22 Beav. 547 ; post, pt. took an interest under it was not noticed i. bk. vi. ch. i. [112] 148 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. H. V. Butlin. (m) And it should seem that the terms in which the rule above stated has been laid down, require some qualification. In delivering the judgment of their lordships in that case, Parke B. made the following observations : " The rules of law, accord- ing to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present appeal, and have been acquiesced in on both sides. These rules are two ; the first is, that the onus probandi lies upon the party propounding a will, who must satisfy the conscience of the court that the instrument propounded is the last will of a free and capable testator ; (m^) the second is, that * if a party writes or prepares a will under which he takes a benefit, that is a circum- stance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evi- dence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased. These principles, to the extent that I have stated, are well estab- lished. The former is undisputed ; the latter is laid down by Sir John NichoU, in substance, in Paske v. Ollatt, Ingham v. Wyatt, and Billinghurst v. Vickers ; and is stated by that very learned and experienced judge to have been handed down to him by his pred- ecessors ; and this tribunal has sanctioned and acted upon it in a recent case, that of Baker v. Batt. (a;) Their lordships are fully sensible of the wisdom of this rule, and of the importance of its practical application on all occasions. At the same time they think it fit to observe, especially as there has been some discus- sion upon this point towards the close of this inquiry, that some of the expressions reported to have been used by Sir John Nicholl, in laying down this doctrine, appear to them to be somewhat equiv- ocal, and capable of leading into error in the investigation and decision of questions of this nature. It is said that, where the party benefited prepares the will, ' the presumption and onus pro- bandi is against the instrument, and the proof must go not merely to the act of signing, but to the knowledge of the contents of the paper ; ' and that, ' where the capacity is doubtful, there must be proof of instructions or reading over.'- If by these expressions (u) Privy Council, Dec. 24, 1838 ; 1 (x) 2 Moore P. C. C. 317. See, also. Curt. 637 ; S. C. 2 Moore P. C. C. 480. Hitchings v. Wood, 2 Moore P. C. C. S.'jS, («l) [Ante, 20, 21, and notes.] 436. [113] CH. II. § V.J OF A WILL WRITTEN BY A LEGATEE. 149 the learned judge meant merely to saj', that there are cases of wills prepared by a legatee so pregnant with suspicion, that they ought to be pronounced against in the absence of evidence in sup- port of them extending to clear proof of actual knowledge of the contents by the supposed testator, and that the instructions pro- ceeding from him, or the reading over the instrument by or to him, are the most satisfactory * evidence of such knowledge, we fully concur in the proposition so understood. In all probability, the learned judge intended no more than this. But if the words used are to be construed strictly ; if it is intended to be stated, as a rule of law, that in every case in which the party preparing the will derives a benefit under it, the onus prohandi is shifted, (a;^} and that not only a certain measure, but a particular species of proof is thereupon required from the party propounding the will ; we feel bound to say that we conceive the doctrine to be incor- rect, (q?) The strict meaning of the term ' onus prohandi ' is this : that if no evidence is given by the party on whom the bur- den is cast, the issue must be found against him. In all cases, this onus is imposed on the party propounding a will ; it is in gen- eral discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are presumed : and it cannot be that the simple fact of the party who prepared the will being himself a legatee is, in very case and under all circumstances, to create a contrary pre- sumption ; and to call upon the court to pronounce against the will, unless additional evidence is produced to prove knowledge of its contents by the deceased. A single instance, of not uu- frequent occurrence, will test the truth of this proposition. A man of acknowledged competence and habits of business, worth 100,000?., leaves the bulk of that property to his family, and a legacy of 101. or 50Z. to his confidential attorney, who prepared his will. Would this fact throw the burden of proof of actual cognizance by the testator of the contents of the will on the party propounding it, so that, if such proof were not supplied, the will would be pronounced against ? The answer is obvious — it would not. All that can be truly said is, that if a person, whether at- torney or not, prepares a will with a legacy to himself, it is at most a suspicious circumstance, of more or less weight according (^1 [Seeanie, 21, note (x*).] Bat. 82; Harrison v. Rowan, 3 Wash. (x"-) [Downey v. Murphey, 1 Dev. & C. C. 580.] [114] 160 OF THE FORM, ETC. OF MAKING A WILL. [PT. I. BK. II. to the facts of each particular case ; in some of no weight at all, as in the case suggested ; varying according to the circumstances, for instance the quantum oi the legacy, *and the proportion it bears to the property disposed of, and numerous other contingen- cies ; (a:^) but in no case amounting to more than a circumstance of suspicion, demanding the vigilant care and circumspection of the court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased. Nor can it be necessary that in all such cases, even if the testator's capacity is doubtful, the precise species of evidence of the deceased's knowl- edge of the will is to be in the shape of instructions for or read- ing over the instrument ; (a;*) they form, no doubt, the most satis- factory, but they are not the only satisfactory description of proof by which the cognizance of the contents of the will may be brought home to the deceased, (afi) The court would naturally look for (a;8) [See Coffin v. Coffin, 25 N. Y. 9, cited ante, 111, note (si).] (a:*) [Washington J. in Harrison v. Rowan, 3 Wash. C. C. 580, 584 ; Bur- ling V. Loveland, 2 Curt. 225 ; McNinch v. Charles, 2 Eich. (S. Car.) 229 ; Day v. Day, 2 Green Ch. 549.] (x^) [Knowledge of contents of will, — As a general rule, a person is presumed to know the contents of any instrument he signs. Androscoggin Bank v. Kimball, 10 Cush. 373, 374. In regard to wills, they form no exception to the rule. Day v. Day, 2 Green Ch. 549 ; Mnnnikhuysen v. Magraw, 35 Md. 280. But where there is doubt respecting the capacity of the tes- tator, — when his capacity appears to have become weak, — and especially where the person who drew the will receives a large benefit under it, the presumption of a knowledge of the contents of the will be- comes weaker, and the suspicion of a want of such knowledge becomes stronger. Durnell v. Corfield, 1 Robert. Ecc. 51, 63. This subject is discussed in Downey v. Murphey, 1 Dev. & Bat. 82, and it is there held that a will written for the testator in extremis, by one standing in a confidential relation to him, and who takes a benefit under it, is not invalid by conclusion of [115] law unless read over to the testator, or its contents othei-wise proved to have been known to him. These facts, though strong evidence, must be left to the jury ; and from them, unless repelled by proof of bona fides, they may find fraud rendering the will invalid. See Crispell v. Dubois, 4 Barb. 393. Ordinarily it is not necessary to give evidence of the testator's knowledge of the contents of his will, until it appears that he was blind or otherwise unable to read, or until a failure or want of capacity appears. Knowledge of the contents of the will, and assent thereto, are presumed, upon proof of capacity and the fact of execution. McNinch v. Charles, 2 Rich. (S. Car.) 229; Day v. Day, 2 Green Ch. 549 ; Pettes v. Bingham, 10 N. H. 514 ; Downey v. Murphey, 1 Dev. & Bat. 87 ; Carr v. M'Cannon, 1 Dev. & Bat. 276 ; Smith u. Dolby, 4 Barring. 350 ; Vernon V. Kirk, 30 Penn. St. 218 ; Hoshauer v. Hoshauer, 26 Penn. St. 404 ; Stewart v. Lispenard, 26 Wend. 287, 288 ; Mnnnik- huysen V. Magraw, 35 Md. 280. But if it appears affirmatively that the testator did not read the will himself, and that its con- tents were not read to him by some other person, the court must be satisfied by ev- idence from some source that he was in CH. II. § V.J OF A WILL WRITTEN BY A LEGATEE. 151 such evidence ; in some cases it might be impossible to establish a will without it ; but it has no right in every case to require it. I have said thus much upon the rules of law applicable to this case, with the concurrence of all their lordships who heard the argument, not particularly with a view to the decision of this case, but in order to prevent any misconception upon a subject of so great practical importance. At the same time, their lordships wish it to be distinctly understood, that, entirely acquiescing in the propriety of the rule so qualified and explained, they should be extremely sorry if anything which has fallen from them should have the effect of impeding its full operation." In the subsequent case of Darling v. Loveland, (y) Sir H. Jen- ner Fust, referring to these passages in the judgment of Mr. Baron Parke, observed that he acceded to every one of the doctrines and principles there laid down, but that he was not aware that the prerogative court had ever acted on any other or different, (g) some way made acquainted with the con- sumption of knowledge and approval of tents of the instrument, and approved its contents would arise therefrom. Ful- them. Day u. Day, 2 Green Ch. 549; ton y. Andrew, House of Lords, 2 Central Harding v. Harding, 18 Penn. St. 340; Law Journ. 529.] Vernon v. Kirk, 30 Penn. St. 218 ; Clif- (y) Prerog. March 19, 1839 ; 2 Curt, ton V. Murray, 7 Geo. 564 ; Gerrish v. 225, 227. Nason, 22 Maine, 438 ; Dorsheimer v. Ror- (z) See, also, Durnell v. Corfield, 1 bach, 8 C. E. Green, 46, 50 ; Chandler ti. Robert. 63, per Dr. Lnshington (sitting Ferris, 1 Harring. 454, 464. So where for Sir H. Jenner Fust), accord. The the capacity of the testator appears to be doctrine laid down as above, in Barry v. doubtful. Tomkins v. Tomkins, 1 Bailey, Butlin, has been recognized and acted on 92, 96 ; Day v. Day, 2 Green Ch. 549 ; in many subsequent cases. See Jones v. Gerrish y. Nason, 22 Maine, 438 ; McNinch Goodrich, 5 Moore P. C. 16; Mitchell v. V. Charles, 2 Rich. (S. Car.) 229. See the Thomas, 6 Moore P. C. 137 ; S. C. 5 remarks of Whitman C. J. in Gerrish v. Notes of Cas. 600 ; Browning v. Budd, Nason, 22 Maine, 438 ; and of Washing- 6 Moore P. C. 430 ; Greville v. Tylee, 7 ton J. in Harrison v. Rowan, 3 Wash. Moore P. C. 320 ; Souler y, Plowright, 10 C. C. 580, 584, 585. But even where it Moore P. C. 440; Keogh v. Barrington, appears that the testator was of sound Cas. temp. Napier, 1 ; Smith v. Goodacre, raind, and that the will was read over to L. R. 1 P. & D. 359. him, no conclusive and irrebuttable pre- 152 OF NUNCUPATIVE WILLS. [PT. I. BK. II. All nuncu- pative wills (made on and after Jan. 1, 1838) are invalid: * SECTION VI. Of Nuncupative Wills and Codicils. A nuncupative testament is when the testator, without any writing, doth declare his will before a sufficient number of witnesses, (a) Before the statute of frauds it was of as great force and efficacy (except for lands, tenements, and hereditaments) as a written testament. (6) But as wills of this description are liable to great impositions, and may occasion many perjuries, that statute (29 Car. 2, c. 3) laid them under several restrictions ; except when made by " any sol- dier being in actual military service, or any mariner or seaman being at sea." (c) And now by the new statute of wills (1 Vict. c. 26), nuncupative wills (or other testamentary dispositions) are altogether rendered invalid. The exception, however, in favor of soldiers and mariners has been continued by the 11th except _ . . ■, those made section of the latter statute, which provides and enacts or mail- that " any soldier being in actual military service, or any mariner or seaman being at sea, may * dispose of his personal estate as he might have done before the making of this act." (ci) (a) Swinb. pt. 1, s. 12, pi. 1 ; Godolph. pt. 1, c. 4, s. 6. It is called nuncupative, says Swinburne, a nuncupando, i. e. nomi- nando, of naming ; because when a man maketh a nuncupative testament, he must name his executor, and declare his whole mind before witnesses. lb. pi. 2. Ac- cording to the civil law, the appointment of an executor was the essence of a will ; and if he were appointed by word of mouth, although many legacies were made and written in a, will, and many things were expressed to be done, it was consid- ered a nuncupative will only. Swinb. pt. 1, s. 12, pi. 6; Godolph. pt. 1, c. 4, s. 7. (6) Swinb. pt. 1, s. 12, pi. 3 ; Godolph. pt.,1, c. 4, s. 6. (c) It appears from the preface to the Life of Sir Leoline Jenkins, that he claimed to himself some merit for having, during the preparation of the statute of frauds, obtained for the soldiers of the [116] [117] English army the full benefit of the testa- mentary privilege of the Roman army. 3 Curt. 531. (c') [See Warren v. Harding, 2 E. I. 133 ; Leathers v. Greenacre, 53 Maine, 561 . No other nuncupative wills but those made by soldiers and seamen in actual service are now recognized as valid in the state of New York. The language of the statute is, " unless made by a soldier while in actual mililary se'rvice, or by a mariner while at sea." 2 Eev. Sts. N. Y. p. 60, § 22, p. 63, § 40 ; Prince .-, Haslcton, 20 John. 502-523; Hubbard ... Hubbard, 12 Barb. 148 ; S. C. 4 Selden, 196. In Mas- sachusetts, " a soldier in actual military service, or a mariner at sea, may dispose of his wages and other personal estate by a nuncupative will." Genl. Sts. c. 95, § 9. No provision is made for making a nun- cupative will in any other case in that state. But a nuncupative will made and CH. II. § VI.] OF THE WILLS OF SOLDIERS OR MARINERS. 153 This privilege, as it respects soldiers, has been held to be con- fined, by the insertion of the words " actual military Construc- service," to those who are on an expedition; and con- gxcepHon! sequently it has been decided that the will of a soldier ^^ ^^ g^i. made while he was quartered in barracks, either at '^''^''^^ home (cZ) or in the colonies (e) is not privileged. -The same was held as to the will of a soldier made at Bangalore, in the East Indies, whilst in command of the Mysore division of the army there stationed, and who died whilst on a tour of inspection of the troops under his command. (/) But where the deceased was on his way from one regiment to another, both of which were in actual jnilitary service, it was held that his will was privi- leged. (^) The term " soldier " extends to persons in the military service of the East India Company. (A) valid in another state and which might be proved and allowed according to the laws of the state or country in which it was made, may be proved, allowed, and re- corded in Massachusetts, and shall have the same effect as if executed according to its laws. Genl. Sts. Mass. c. 92, § 8 ; Slo- comb V. Slocomb, 13 Allen, 38. Nuncupa- tive wilLs are valid in many of the Ameri- can States. See their statutes ; Brayfield v. Brayfield, 3' Harr. & J. 208 ; Gwin v. Wright, 8 Humph. 639 ; Gibson v. Gib- son, Wallier (Miss.), 364; Palmer v. Pal- mer, 2 Dana, 390; Dorsey v. Sheppard, 12 Gill & J. 192 ; Ellington v. Dillard, 42 Geo. 361. These statutes differ mainly as to the amount of property that may be bequeathed by a nuncupative will, and also as to the requisite number of wit- nesses. They are generally very specific as to the formalities required, and great strict- ness in the proof of compliance with those formalities is universally demanded. In Michigan, not over three hundred dollars can be bequeathed by such a. will. The same in Iowa. In Alabama, not over five hundred. Erwin v. Hammer, 27 Ala. 296. In Maryland a nuncupative will bequeath- ing over three thousand dollars was al- lowed. Dorsey v. Sheppard, 12 Gill & J. 192. In "Vermont the property allowed to be so disposed of is limited to two hun- dred dollars. As to real estate, see Camp- bell V. Campbell, 21 Mich. 438 ; Smithdale V. Smith, 64 N. Car. 52 ; McLeod v. Dell, 9 Florida, 451 ; Palmer v. Palmer, 2 Dana, 390 ; Page v. Page, 2 Rob. (Va.) 424 ; Gillis V. Weller, 10 Ohio, 462 ; Ashworth V. Carleton, 12 Ohio St. 381.] (of) Drummond v. Parish, 3 Curt. 522. [A soldier at home on furlough cannot make a valid nuncupative will ; Will of Smith, 6 Phil. (Pa.) 104 ; nor can he while in camp. Van Deuzer v. Gordon, 39 Vt. 111.] («) White u. Repton, 3 Curt. 818. See In the Goods of Phipps, 2 Curt. 368; In the Goods of Johnson, 2 Curt. 341. (/) In the Goods of Hill, 1 Robert. 276. [See In the Goods of Perry, 4 Notes of Cas. 402 ; In the Goods of Norris, 3 Notes of Cas. 197.] (« """i^- ness that such was his will, or to that effect ; nor unless such nun- cupative will were made in the time of the last sickness of the de- ceased ; and in the house of his or her habitation or dwelling, or (m) In the Goods of Hays, 2 Curt, steamer. Ex parte Thompson, 4 Bradf. 338. ' Sur. 154.] (n) Morrell v. Morrell, 1 Hagg. 51 ; In (o) In the Goods of Farquhar, 4 Notes the Goods of Milligan, 2 Rotert. 108; In of Gas. 651, 652. the Goods of Parker, 2 Sw. & Tr. 375. (p) See post, pt. i. bk. iv. ch. it. I To a purser on board of an Atlantic [119] 156 OF NUNCUPATIVE WILLS. [PT. I. BK. II. where he or she hath been resident for the space of ten days, or more, next before the making of such will, except where such per- son was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling." S. 20, it And by section 20, " After six months passed after mustbeput -,.,.■, n t , , n into writ- the speaking of the pretended testamentary words, no s?ldays'r testimony shall be received to prove any will nuncupa- Ucamof ^^'^^i except the said testimony, or the substance thereof, be proved ^yere Committed to writing within six days after the after six ° ■' months. making of the said will." And by section 21, " No letters testamentary, or probate of g. 21 : any nuncupative will, shall pass the seal of any court till proved" ^^ fourteen days at the least after the decease of the testator . be fully expired, nor shall any nuncupative will be at any nextofiiin, time received to be proved, unless process have first issued to call * in the widow or next of kindred to the deceased, to the end they may contest the same if they please." And by section 22, it is further enacted, " That no will, in writ- S. 22: writ- ing. Concerning any goods or chattels, or personal estate, personal shall be repealed, nor shall any clause, devise, or bequest not'to'ife therein, be altered or changed by any words, or will by alt'ered'by' ^°^^ °^ mouth only, except the same be in the life of the tive"disT*' testator committed to writing, and after the writing sition. thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least." With respect to the witnesses required by the 19th section, it Stat. 4 is declared by the statute 4 Ann. c. 16, s. 14, that " all such witnesses as are and ought to be allowed to be good nessts we' Witnesses upon trials at law, by the laws and customs of deemed ^^^^ realm, shall be deemed good witnesses to prove any good. nuncupative will, or any thing relating thereunto." "Thus," says Mr. Justice Blackstone, "hath the legislature Summary provided against any frauds in setting up nuncupative tions on wills, by SO numerous a train of requisites, that the thing tivrmits, itself has fallen into disuse, and it is hardly ever heard sTa^"^"^' °^ '^'^* i" ^^^ °^^y instance where favor ought to be stone. shown to it, when the testetor is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, not any loose idle discourse in his ill- ness ; for he must require the bystanders to bear witness to his [120] CH. n. § VI.J OF NUNCUPATIVE WILLS. 157 intention ; the will must be made at home, or among his family or friends, unless by unavoidable accident: (^^) to prevent impo- sitions from strangers, it must be in his last sickness ; (p^) for if he recovers, he may alter his dispositions, and has time to make a written will. (^^) It must not be proved at too long a distance from the testator's death, lest the words should escape the mem- ory of the witnesses ; nor yet too hastily, and without notice, lest the family of the testator should be put to inconvenience or surprised." (^q) * The words of the statute of frauds, with respect to nuncupa- tive wills, have always been construed strictly, and all The stat- its provisions must be completely complied with, (r) JJuncupa- Accordingly the enactment, that no nuncupative will gjjlfg^a"^ shall be good that " is not proved hy the oath of three strictly. witnesses,^'' has been held to make such a will invalid, where one of three witnesses present died before he could make proof, (s) The statute is also strictly construed with respect to its requi- sition, that the testator shall bid the persons present, strictness or some of them, bear witness that such is his will, or ^L'^^l,^^ to that effect ; which is technically called the rogatio ■ testium. testium. Thus, where a mother in her last sickness called sev- (pi) [See Marks v. Bryant, 4 Hen. & M. 254 ; Werkheiser v. Werkheiser, 6 Watts 91; Nowlin v. Scott, 10 Grattan, 64; & S. 184 ; O'Neill v. Smith, 33 Md. 569.] Sykes v. Sykes, 2 Stew. (Ala.) 364 ; Gib- (p') [If the testator recover, even when son V. Gibson, 1 Miss. 364.] he has made « nttncupative will with all (p^) [And when the extremity of the due formality, it becomes of no force, testator's illness prevented a written will. Prince v. Hazelton, 20 John. 502 ; Magee Boyer u. Frick, 4 Watts & S. 357; Yar- v. McNeil, 41 Miss. 17.] nail's Will, 4 Eawle, 46; Strieker!'. Groves, (q) 2 Bl. Com. 501. An instance of a 5 Whart. 397; Porter's Appeal, 10 Barr, nuncupative will being established may 254 ; Werkheiser v. Werkheiser, 6 Watts be found in the case of Freeman v. Free- •& S. 184; Haus v. Palmer, 21 Penn. St. man, 1 Cas. temp. Lee, 343. 296; Prince v. Hazleton, 20 John. 502; (r) Bennett u. Jackson, 2 Phillim. 190; Hubbard u. Hubbard, 12 Barb. 148; Eelly Lemann v. Bonsall, 1 Add. 389 ; [Eidley w. Kelly, 9 B. Mon. 553. The words " last v. Coleman, 1 Sneed, 616; Welling v. sickness" have not in all cases been held Owings, 9 Gill, 467; Lucas v. GofF, 33 to mean the very last extremity of life. Miss. 629. Nuncupative wills are not See Johnson v. Glasscock, 2 Ala. N. S. favored in the law. Mitchell w. Vickers, 218. But in cases of lingering disease, 20 Texas, 377.] though finally proving fatal, it must come (s) Phillips v. St. Clement's Danes, 1 to the last day, if not to the last hour, Abr. Eq. Cas. 404 ; also reported in Swinb. to justify a nuncupative will. Prince v. 6th ed. 60. [See Mitchell v. Vickers, 20 Hazleton, 20 John. 502 ; Yarnall's Will, Texas, 377.] 4 Kawle, 46 ; Porter's Appeal, 10 Barr, [121] 158 OF NUNCUPATIVE WILLS. [PT. I. BK. II. eral of her children, and the daughter of the person with whom she lodged, to her bedside, and declared her wishes as to the disposition of her effects, and the conduct of her family after her death, such declaration was held inadmissible to probate, as a nuncupative will, on account of the want of rogatio testium ; for the words of the statute are very strong, and must be held strictly that the deceased shall call upon the persons present to bear wit- ness to the act ; he must declare that the words were spoken with the intention of making a will at the time. (<) So little are nuncupative wills favorites with the ecclesiastical Strictness courts, that not only must all the provisions of the stat- factum of ute of frauds be strictly complied with to enable such a five'wnT^' ^^^^ *° probate ; but added to this, and independent of d"nt^Tth ^^^^ statute altogether, the factum of a nuncupative will statute. requires to be proved by evidence more strict and strin- gent than that of a written one, in every single particular, (m) This is requisite in consideration of the facilities with which frauds * in setting up nuncupative wills are obviously attended ; facili- ties which absolutely require to be counteracted by courts insisting on the strictest proofs as to the "/acto" of such alleged wills. Hence the testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation, must appear, in the case of a nuncupative will, by the clearest and most indis- putable testimony, (x) {t) Bennett v. Jackson, 2 Phillira. 190. number of witnesses must all be present See, also. Parsons v. Miller, and Darn- and called on at the same time to attest Brooke v. Silverside, cited by Sir John the will. Yarnall's Will, 4 Eawle, 46; NichoU, in his judgment, 2 Phillim. 192 ; Prince v. Hazelton, 20 John. 505; Haus v. and Richards v. Richards, 2 Cas. temp. Palmer, 21 Penn. St. 296 : Weeden v. Lee, 588 ; [Babineau u. Le Blanc, 14 La. Bartlett, 6 Munf. 123 ; Tally v. Butter- Ann. 729; Garner v. Lansford, 20 Miss, worth, 10 Yerger, 501 ; Rankin v. Kankin, 558; Gwin t;. Wright, 8 Humph. 639; 9 Ired. 156 ; Offut !). Offnt,3 B. Mon. 162 ; Haden w. Bradshaw, 1 Wins. (N. C.) 263 ; Reese v. Hawthorn, 10 Grattan, 531 ; Par- Taylor's Appeal, 47 Penn. St. 31 ; Winn sons v. Parsons, 3 Greenl. 298 ; Wester v. V. Bob, 3 Leigh, 140 ; Haus u. Palmer, 21 Wester, 5 Jones Law, 95. But see Port- Penn. St. 296 ; Dockum o. Robinson, 26 wood v. Hunter, 6 B. Mon. 538.] N. H. 372 i Brown o. Brown, 2 Murph. (u) Lemann v. Bonsall, 1 Add. 389 ; 350 ; Dawson's Appeal, 23 Wise. 69 ; [Parsons v. Parsons, 2 Greenl. 298 ; Wel- Smith u. Smith, 63 N. Car. 637 ; Arnett ling v. Owings, 9 Gill, 467 ; Bronson u. V. Arnett, 27 111. 247 ; Sampson v. Brown- Burnett, 1 Chand. (Wise.) 136 ; Woods v. ing, 22 Geo. 293. It is not enough that Ridley, 27 Miss. 119; Rankin v. Rankin, the alleged testator declare his will first in 9 Ired. 166.] the presence of one witness, and afterwards (x) 1 Add. 389, 390. [It should appear in the presence of another. The requisite that the deceased, at the time he spoke the [122] CH. II. §vi.] OF NUNCUPATIVE WILLS. 159 It is laid down in a book of authority C«/) that a nuncu- ^ °""<="- , f , , pative will pative testament may be made, not only by the proper may be motion of the testator, but also at the interrogation of interroga- another. '°™^' It has already appeared that by the twenty-second section of the statute of frauds it is provided, that no written S. 22 of will shall be repealed or altered by any words or will by does'not' * word of mouth only. It has, however been held, that fP^'f^'" this section does not prevent a nuncupative provision legacies: (made according to the restrictions of the statute) of a lapsed legacy. Thus, where one made his will, and his wife executrix, and gave her all the residuum of his estate after certain legacies paid ; she died in the testator's lifetime, and he, having notice of her death, made an nuncupative codicil, and gave to another all that he had given to his wife ; and the single question was, whether the nuncupative codicil was allowable notwithstanding this clause of the statute of frauds. And it was held at the delegates that, as this case was, the nuncupative will was good ; for, by the death of the wife before the testator, the devise of the residuum became totally void ; and so there was no will as to that part ; and there- fore the nuncupative codicil was quasi a new will for so much, and was no alteration of the will as to that ; because there was no such will, its operation being determined, (z) alleged testamentary words, had the pres- ent intention to make his will, and spoke the words with such intention ; Winn v. Bob, 3 Leigh, 140 ; see Gibson v. Gibson, "Walker (Miss.), 364; Reese v. Hawthorn, 10 Grattan, 458 ; Dockum v. Robinson, 26 N. H. 372 ; and for the purpose of hav- ing the very words, uttered by him at the time, constitute his will. Gould v. Saffold, 39 Vt. 498. In Kentucky, a paper not per- fected as a written will, may be considered as a nuncupative will, where its comple- tion is prevented by the act of God. Offutt V. Offutt, 3 B. Mon. 162. So in some other States. Mason v. Dunman, 1 Munf. 456 ; Boofter v. Rogers, 9 Gill, 44 ; Frierson u. Beale, 7 Geo. 438 ; Parkison v. Parkison, 12 Sm. & M. 673 ; Aurand v. Wilt, 9 Penn. St. 54 ; Phoebe v. Boggess, 1 Grattan, 129. But see Dockum u. Robinson, 20 N. H. 372 ; In re Hebden, 20 N. J. Eq. 473. To establish such a paper as a nuncupative will, however, it must appear to contain the final determination of the testator as to the disposition of the estate, and his whole will respecting it. Winn v. Bob, 3 Leigh, 140 ; Rochelle v. Rochelle, 10 Leigh, 125 ; Malone v. Harper, 2 Stew. & P. 454 ; Reese v. Hawthorn, 10 Grattan, 548 ; Dockum V. Robinson, 26 N. H. 372. As to the evidence sufficient to establish a nuncupative will, see Smith v. Thurman, 2 Heisk. (Tenn.) 110. It is said that a signed writing cannot be a nuncupative will. Stamper v. Hooks, 22 Geo. 603; Reese v. Hawthorn, 10 Grattan, 548. But see Botsford v. Krake, 1 Abb. Pr. (N. S.) 112.] (y) Swinb. pt. 1, s. 12, pi. 6. (z) Robinson's case. Sir T. Raym. 334 ; Com. Dig. Devise, C. 160 OF NUNCUPATIVE WILLS. [PT. I. BK. IL And it was held in the last case, that if any part of a will in or a void writing was made by force of fraud, the thing so given legacy: ^^^^ specified in such part might be devised by a nun- cupative codicil ; for such part as was so obtai»dd was no part of the will ; and therefore such codicil would be no alter- ation *of what was not, but would be an original will for so much, (a) And it was also held in the last case, that if A. be possessed of an estate of 1,000Z., and by will in writing gives ertynot 5001. of it to B., he may give the residue by a nun- disposed of . „, 1 ' T , 1, ,1 by tiie pre- cupative Will, SO as he does not alter the execu- vious will. . ^7^ tor. (o) It seems that a disposition not valid as a nuncupative will, by A disnosi- ^eason of non-compliance with the forms and circum- tion not stances required by the statute of frauds, may in some valid as a ^ j ^ ^ j nuncupa- cases be supported as a trust in equity. Thus, where tiv6 Willi . ■ may some- a daughter deposited 180?. in the hands of her mother, supported ^ii. 206, that the mere dolph, 11 C. B. N. S. 360 ; [ante, 142, cutting off three lines from the beginning note (t») ; In re Kirkpatrick, 22 N. J. of the will does not, in the absence of any Eq. 463 ; In re Brown's Will, 1 B. Mon. evidence to the contrary, show an intention 57; McPherson v. Clark, 3 Bradf. Sur. to revoke the whole will. 92 ; Overall v. Overall, Litt. Sel. Gas. (a) Swinb. pt. 7, s. 16, pi. 4 ; Sotton v. 504.] Sutton, Cowp. 812 ; Humphreys v. Taylor, (6) Scruby u. Fordham, 1 Add. 74, 78 ; 7 Gwillim's Bac. Abr. 363 ; Scruby v. Ford- Roberts v. Round, 3 Hagg. 552, by Sir J. ham, 1 Add. 78. The law was the same NichoU. with respect to devises of land. Larkins (e) Ante, 128, 141. [143] CH. III. § I.] BY OBLITERATION, ALTERATION, ETC. 181 intentions, they were entitled to probate. (cZ) Alterations and obliterations, however, which appeared to be only cursory and de- liberative, were not effectual to revoke the passages so altered or obliterated ; (e) nor were alterations or obliterations preparatory to the * substitution of new dispositions, which the testator never carried into legal effect. (/) With respect to alterations and obliterations made since the new statute came into operation (1st January, 1838), it j^^^ ^ujg is required (sect. 21), in order to give effect to any ob- *<='' ^-^l: literation, (fi) interlineation, or other alteration, that formalities ' v-^ ^ ' necessary such alteration shall be executed as is required for the for obliter- ations and execution of the will, with this difference, that the signa- other aiter- ture of the testator and the subscription of the witnesses need not be at the foot or end of the will, but may be made in the margin, or some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. (/^) (d) Ravenscroft v. Hunter, 2 Hagg. 68. [See Cogbill v. Cogbill, 2 Hen. & Munf. 467.] So in Mence v. Mence, 18 Ves. 348, a residuary bequest was held to be revoked by striking through, with a pencil, all the disposing part, leaving only the general description, with notes in pencil, in the margin, indicating alterations and different dispositions of certain articles. (e) Parkin v. Bainbridge, 3 Phillim. 321 ; Lavender v. Adams, 1 Add. 409 ; In the Goods of Rolls, 2 Add. 316. See Mar- tins V. Grardiner, 8 Sim. 73. {/) See post, 148 et seq. if^) [Under the Pennsylvania statute of wills (1833) providing for the repealing of a will, a careful interlineation is not an "obliteration." Dixon's Appeal, 55 Penn. St. 424.] (/2) [Quinn v. Quinn, 1 N. Y. Sup. Ct. 437. A few days after a testator had made his will, and executed it in due form of law, in presence of the original wit- nesses to the will, he inserted therein an additional bequest, of which he requested them to take notice ; and it was held that this act neither revoked the will, nor in any way invalidated it, and that the addi- tional bequest became a, part of the will. Wright V. "Wright, 5 Ind. (Porter) 389. Sed gucere, see Dixon's Appeal, 55 Penn. St. 424. As to alterations made by the testator himself, they are of course valid, if the requirements of the law in respect to them are complied with, and the will in its altered shape is duly attested. If al- terations made by the testator or his di- rection fail to be etfectual for want of proper forms of execution, they do not destroy the will ; but the will may be per- mitted to remain valid, as it was before the alteration. Jackson v. HoUoway, 7 John. 394 ; Quinn v. Quinn, 1 N. Y. Sup. Ct. 437. As, where after a will of real and personal estate had been duly executed, a, scrivener, by direction of the testator, and in the presence of only one of the subscrib- ing witnesses, interlined another legacy, it was held that the alteration did not make the will void. Wheeler v. Bent, 7 Pick. 61. See Jackson u. HoUaway, supra; Wright V. Wright, supra ; Quinn v. Quinn, supra. In a state where a holograph will is valid without attestation,' any altera- tions made by the testator in such a will, by striking out or adding, will be valid. [144] 182 REVOCATION OF WILLS. [PT. I. BK. II. The language of this section makes it clear that the obliteration of a particular bequest in a will cannot be considered as a destruc- tion of so much of the instrument, and therefore as a revocation of it fro tanto, under the 20th section, however apparent the in- tention of the testator may be to make a complete obliteration ; because obliteration is a mode of alteration provided for by the 21st section; and, according to that section, no obliteration can be valid unless executed as a will, (^f) The statute contains an exception in this respect, viz : " except so far as the words and effect of the will before such alteration shall not be apparent." Consequently, if the words are quenoes of completely obliterated, so that it cannot be made out obutera- what they originally were, the alteration is valid, and "°°' probate must then be granted, as if there were blanks in the will. (A) *The words in this exception "shall not be apparent" seem to mean " apparent on an inspection of the instrument itself ; " and not "capable of being made apparent by extrinsic evidence." And consequently it has been held that the court is not at liberty to resort to evidence aliunde ; e. g. to refer to a draft copy or to the instructions for the will. («') It was the intention of the legislature in this respect, that if a testator shall take such pains to obliterate certain passages in his will, and shall so effectually accomplish his purpose, that those passages cannot be made out Cogbill V. Cogbill, 2 Hen. & Munf. 467. As to alterations made in wills by strangers, Malin u. Malin, 1 Wend. 625 ; by party interested under it, Jackson a. Malin, 15 John. 297; 2 Pothier, by Evans, 179- 181.] (g) Lushington v Onslow, 6 Notes of Cas. 183 ; Greville v Tylee, 7 Moore P. C. C. 320. [See Re Cunningham, 1 Searle & S. 132.] (A) In a case on motion. Sir H. Jenner Fust ordered that the erasures in a will should be carefully examined in the reg- istry, with the help of glasses, by persons accustomed to writing, to ascertain wheth- er they could be made out, and directed that probate should pass with the erased passages restored, unless they could not be made out, and then with those parts in blank. In the Goods of Ibhetson, Prerog. [145] June 5, 1839; 2 Curt. 337. See, also, In the Goods of Beavan, 2 Curt. 369 ; In the Goods of James, Sw. & Tr, 248. Gen- erally speaking, the court of probate will not, in the first instance, take upon itself to decide whether the words obliterated can or cannot be made out. If it be as- serted in an allegation that they are capa- ble of being distinguished on the face of the will, the court will refer such an alle- gation to proof, and then pronounce its judgment according to the testimony which may be offered at the hearing. Townley u. Watson, 3 Curt. 769. (i) Townley v. Watson, 3 Curt. 761. The exception, as proposed by the real property commissioners, was " except if any words cannot be read nor made out in evidence in consequence of the oblitera- tion." 4 Rep. 31. CH. in. § I.] BY OBLITERATION, ALTERATION, ETC. 183 on the face of the instrument itself, it shall be a revocation as good and valid as if done according to the stricter forms men- tioned in the act of parliament. (A) And in the earlier view taken by the prerogative court of this clause, it was considered as a consequence of this construe- conse- tion, that in a case where a legacy was given, and the compietB° amount was afterwards obliterated by the testator and y^'jj'^^^ another sum written by him over the obliteration, by unattested , . 1 , . ^ J substitu- way of substitution, but without the attestation required tion. by the act, although the alteration would be wholly ineffectual, and the legacy would be pronounced for as originally given, should the will continue legible in this respect, (V) yet if the obliteration should be such that it could not be made out upon inspection of the will what was the amount of the sum originally given, the legacy would be lost altogether, * because the unattested substitu- tion was not a valid alteration, and the original bequest was re- voked by the obliteration which had rendered it illegible. This construction was, at first, unwillingly put on the act by Sir H. Jenner Fust, in a case upon motion. In the Goods of Rippin,' (m) where the amount of a legacy was found obliterated in a will, and the word " thirty " written over the erasure in - the deceased's hand, without any attestation, and it could not be made out, upon looking at the will, what the word was over which " thirty" was written. A witness, who had seen the will prior to the altera- tion, deposed that the word was "fifty." But the learned judge was of opinion that the court was not at liberty to supply by parol testimony what was not apparent on the will itself; and decreed probate without the word "thirty," and with the legacy in blank. It was suggested, in a former edition of this treatise, that cases of this sort might admit of the application of the doctrine of de- pendent relative revocations, (n) and that consequently it might be properly held that where the testator's intention appears to have been only to revoke by the substitution of another bequest, which, in his apprehension, will be effectual, if such new bequest cannot take effect for want of compliance with the statute, the obliteration shall not operate as a revocation, but the will may be (k) 3 Curt. 769. (m) 2 Curt. 332. See, also, In the {I) In the Goods of Beavan, 2 Cart. Goods of Brooke, lb. 343 ; In the Goods 369. [See Jackson v. Holloway, 7 John, of Livock, 1 Curt. 906. 394 ; Wheeler v. Bent, 7 Pick. 71.] (n) See/iosf, 147 et seq. [146] 184 EEVOCATION OF WILLS. [PT. I. BK. n. pronounced for in its integral state, if that is ascertainable by any means of legal proof -whatsoever. This view of the subject has been justified by the subsequent decision of the judicial commit- tee of the privy council, in Brooke v. Kent, (o) And it is now settled, that where a testator entirely erases the original words, intending to revoke a legacy by substituting a different sum from that originally given, and such substituted legacy is not effectually given, the original legacy *is not revoked, and evidence aliunde is admissible to show what the words were. (^) The statute provides (s. 20) that the acts prescribed for the revocation of wills must be done " with the intention of revoking the same." This enactment appears to have been unnecessary, inasmuch as the law was fully estab- lished to the same effect at the time of the passing of the act. An act done without the intention to revoke is wholly ineffectual, (g) It is clear that an insane person cannot have any intention. Where there is proof that the will was duly Mutilation executed by the testator who afterwards became insane, by testator tjje onus of showing that it had been mutilated by the who has '^ . . become in- testator when of sound mind is on the party alleging the revocation, (r) All questions of revocation of wills have ever been regarded The acts irescribed I :or revoca- tion must be done animo rev- ocandi. (o) 3 Moore P. C. C. 334. {p) Soar V. Dolman, 3 Curt. 121 ; Townley v. Watson, lb. 769. See In the Goods of Bedford, 5 Notes of Cas. 1 88 ; In the Goods of Harris, 1 Sw. & Tr. 536 ; In the Gdbds of Parr, 29 L. J., P. M. & A. 70 ; [1 Sw. & Tr. .'56 ; 6 Jur. N. S. 56;] In the Goods of Harris, [29 L. J. Prob. 79; 1 Sw. & Tr. 536; In the Goods of McCabe, L. R. 3 P. & D. 94 ; Jack- son V. Holloway, 7 John. 394 ; McPherson V. Clark, 3 Bradf. Sur. 92.] (q) Clarkson v. Clarkson, 2 Sw. & Tr. 497 ; [ante, 140, note (p), adjinem.] (r) Harris v. Berrall, 1 Sw. & Tr. 153. See, ante, 42 ; Benson v. Benson, L. K. 2 P. & D. 172, 176. See, also, Sprigge v. Spriggc, L. E. 1 P. & D. 608 ; [post, 381, and cases in note (cf). A person who is incompetent to make a will seems to be equally incompetent to revoke a will pre- viously made ; and the destruction by him [147] of a will, when so made, is not a revoca- tion thereof, because it requires the same capacity to revoke a will as to make one. Thus, where a competent testator makes a will, and it is afterwards destroyed by his consent given when he has become non compos, the devises are not destroyed, but the will may be set up and established. Allison V. Allison, 7 Dana, 94 ; Idley v. Bowen, 11 Wend. 227 ; Ehodes v. Vinson, 9 Gill, 169; Smiths. Wait, 4 Barb. 28; Nelson v. M'Giffert, 3 Barb. Ch. 158 ; Ford V. Ford, 7 Humph. 92 ; Smithwick v. Jor- dan, 15 Mass. 115; Forman's Will, 54 Barb. 274 ; S. C. 1 Tuck. (N. Y. Sur.) 205 ; CoUagan «. Burns, 57 Maine, -449 ; ;)os<, 159. A will is not revoked by » subse- quent will or codicil obtained by nndne influence. O'Neall v. Farr, 1 Rich. (S. Car.) 80; Parker C. J. in Langhton v. Atkins, 1 Pick. 546, 547.] CH. III. § I.] OF OBLITERATION, ALTERATION, ETC. 185 in the ecclesiastical courts as questions, to some degree, of inten- tion, and every fact of revocation may in some sort be said to be equivocal, (s) But cancelling and obliterating have always been considered peculiarly as equivocal acts, which, in order to operate a revocation, must be done with intention to revoke, (s^) The presumption of law, primd facie, is, that such acts are done animo revocandi. (t) But this presumption may be repelled by evidence showing that the animus did not exist, (t^') As if a man was to throw ink upon his will instead of sand, though it might be a complete defacing of the instrument, it would be no revocation : Dependent or suppose a man, having two wills of different dates jfyoga- by him, should direct the former to be cancelled, and, ''°°'' through * mistake, the person directed should cancel the latter, such an act would be no revocation of the latter will, (m) This principle, that the effect of the obliteration, cancelling, &c. depends upon the mind with which it is done, having gj^^ggUa. been pursued in all its consequences, has introduced the tion de- . .... pendent doctrine of dependent relative revocations, in which the upon the act of cancelling, &c. being done with reference to another another act, meant to be an effectual disposition, will be a revo- *'^'' cation or not, according as the relative act be efficacious or not. (x) (s) Smith u. Cunningham, 1 Add. 455. judgment; 1 Saund. 280 b, c, note to («!) [See ante, 140, T[iOte (p), ad Jinem ; Duppa v. Mayo; Lord John Thynne v. Dan V. Brown, 4 Cowen, 490.] Stanhope, 1 Add. 53, in Sir J. Nicholl's («) Rickards y. Mumfoid, 2 Phillim. 28; judgment. See, also, Swinb. pt. 7, s. 16, Lord John Thynne v. Stanhope, 1 Add. 52. pi. 4 ; In the Goods of Tozer, 2 Notes of See Shaw v. Thome, 4 Notes of Cas. 649 ; Cas. 11 ; [In the Goods of McGab%, L. E. In the Goods of Lewis, 27 L. J., P. M. & 3 P. & D. 94 ; Dancer ,.. Crabb, L. K. 3 A. 31. P. & D. 98. Where a will is found torn, (fl) [Dawson v. Smith, 3 Honst. (Del.) evidence is, of course, admissible to sliow 335. Even drawing lines across a will may that it is merely the effect of wear ; Bigge be explained by circumstances not to he v. Bigge, 9 Jur. 192 ; 3 Notes of Cas. 601 ; an intended revocation. Bethel w. Moore, for mere tearing or destruction without 2 Dev. & Bat. 316. See Brown's Will, 1 intention to revoke is no revocation under B. Mon. 57 ; Lewis a. Lewis, 2 Watts & the express terms of the act. He Tozer, S. 455; Wikoff's Appeal, 15 Penn. St. 2 Notes of Cas. 11; 7 Jur. 134; Re Han- 281 ; Means v. Moore, 3 McCord, 282; nam, 14 Jur. 558; Clarke v. Scripps, 16 Smith V. Dolby, 4 Harring. 350 ; Boudinot Jur. 783 ; 2 Rob. 563.] V. Bradford, 2 Yeates, 170; Overall u. (.r) 1 Powell on Devises, p. 600, ed. Overall, Litt. Sel. Cas. .504.] by Jarman ; [Pringle ... M'Pherson, 2 (u) Onions v. Tyrer, 1 P. Wms. 345, in Brevard, 279 ; McPherson v. Clark, 3 Lord Cowper's judgment ; Burtenshaw v. Bradf. Sur. 92. See Benning J. in Barks- Gilbert, Cowp. 52, in Lord Mansfield's dale v. Hopkins, 23 Geo. 332, 341. If a [148] 186 BEVOCATION OF WILLS. [PT. I. BK. II. Thus, in Onions v. Tyrer, («/) a man made a second will, to the use of the same person to whom he had devised the land by the first will, with a variation only in the name of one of the trustees ; but which second will was not good, because not duly attested according to the statute of frauds. After so executing the second will, he cancelled the first by tearing off the seal. One question was, whether the cancelling of the former will was a revocation thereof within the statute of frauds and perjuries. And it was held that it was not ; because there was no self -substituting inde- pendent act, but done to accompany, or in way of aflB.rmation of the second will ; it was done from an opinion that the second will had actually revoked the first, which induced the testator to tear that, as of no use. Therefore, if the first was not effectually re- voked by the second, neither ought the act of tearing the first to revoke it ; for, though a man might, by the statute of frauds, as effectually destroy his will by tearing or cancelling it, as by making a second will, yet, when he intended to revoke the first will by the second, and it was insufficient for that purpose, as in the principal case, and the tearing and cancelling the first was only in * consequence of his opinion that he thereby made good the second will, the tearing and cancelling should not destroy the first, but it ought to be considered as still subsisting and unre- voked. (2) And the principle of this decision was recognized by Lord Mansfield in the case of Burtenshaw v. Gilbert ; (a) by Lord Ellenborough in Perrot v. Perrot ; (J) and by Sir John Nicholl in Lord John Thynne v. Stanhope, (e) So in the case of Hyde v. Hyde, (ti) where the testator, having given instructions for some immaterial alterations in a properly executed will, read over a will be once completely cancelled and re- (y) 2 Vern. 742 ; S. C. Free, in Chan, voked, it is a final act, even though the 459 ; 1 Eq. Cas. Ab. 408 ; 1 P. Wms. 343 ; testator, at the time, intended afterwards 1 Saund. 280 b, note to Duppa v. Mayo, to make a new will and never did so; or (2) Powell on Devises, 601. It would did so, and afterwards cancelled the sec- have made no difference if the latter will end will ; it will in such a case require a had been in favor of another person from republication to restore the first will, the former. See Sir William Grant's Semmes v. Semmes, 7 Harr. & J. 388 ; judgment in Ex parte the Earl of Ilches- Bohannon v. Walcot, 1 How. (Miss.) 336 ; ter, 7 Ves. 379. 4 Kent, 531 ; Jones v. Hartley, 2 Whart. (a) Cowp. 52. 103; Havard v. Davis, 1 Browne, 334; (6) 14 East, 440. S. C. 2 Binn. 406 ; Flintham v. Bradford, (c) 1 Add. 53. 10 Penn. St. 82 ; post, 178-1 81 ; James v. (d) 1 Eq. Cas. Abr. 409 ; S. C. 3 Chanc. Marvin, 3 Conn. 576.] Eep. 155. [149] CH. III. § I.] BY OBLITERATION, ALTERATION, ETC. 187 draft of a new will made according to such instructions, and hav- ing signed such draft, tore the seals from his old will, under the impression that his new will was completely executed so as to pass lands ; this was held to have been done sine animo cancel- landi, and therefore to be no revocation of the original will. Again, in Hyde v. Mason, (e) the testator duly, according to the statute of frauds, made and executed his will in duplicate, and one of the duplicates was delivered to one of the executors. The testator, about three weeks before his death, made several altera- tions and obliterations with his own hand, in the duplicate re- maining in his own custody, making a new devise of his real estate, and a new residuary legatee, and a new executor, entirely striking out the names of the first devisees, residuary legatees, and executors, and altered several of the former legacies, and inserted or interlined new legacies. And soon after he wrote another will with his own hand, agreeable in great measure, but not altogether, to the will or duplicate so altered, with the * conclusion in these words : "In witness whereof I the said testator have to each sheet set my hand, and to the top where the sheets are fixed together, my hand and seal, and to the last thereof my hand and seal, and to a duplicate of the same tenor and date this day of 1730." But there was no signing or fixing together. The testator soon after began to write another will, word for word with the last, as far as it went, but proceeded no farther than devising his lands. The testator lived six days after, and was in good health, and might have finished and executed both or either of the later wills if he had thought fit. The testator never sent to or called upon the executor for the duplicate of the first will in his hands, though the executor lived in London, where the testator also resided. After the death of the testator all the testamentary papers or schedules were found lying all in loose and separate papers, upon a table in his closet, not signed or exe- cuted, and the duplicate of the first will was found on the same table, altered and obliterated (ut supra} with his name and seal thereto, whole and uncancelled. In the prerogative court sen- tence was given for the duplicate of the first will in the execu- (e) Vin. Abr. Devise, R. 2, pi. 17, S. Goodright v. Glazier; S. C. nomine Cal- C. nomine Limbery v. Mason, Com. Eep. amy v. Hyde, 1 Gas. temp. Lee, 423, note 451 ; S. C. 3 Eq. Gas. Abr. 776, and 4 (o). Burr. 2515, cited by Lord Mansfield in [150] 188 REVOCATION OF WILLS. [PT. I. BK. II. tor's hands ; and upon appeal to the delegates the sentence was confirmed by Lord Raymond, Mr. Justice Probyn, Dr. Tyndall, and Dr. Brampton. A commission of review was afterwards ap- plied for and obtained ; and after further hearing, &c. before the commissioners of review, the former sentence of the prerogative court was again affirmed by all the delegates, except Dr. Pinfold, viz, by Reynolds C. B., Page J. and Corayns B., and two doctors of the civil law, chiefly on the reason that the. testator did not intend an intestacy ; and by the alterations and obliterations in his own duphcate of the first will, he appeared only to design a new will, which, as he never perfected, the first ought to stand ; and his not calling for the duplicate in the executor's hands strength- ened the presumption of his intent, not absolutely to destroy his first will till he perfected another, which he never did. (e^) * In the case of Winsor v. Pratt, (/) the testator, in July, 1812, made his will, by which he devised certain real estates to his wife for life, and on her death to her mother, and on the death of his wife and her mother to his executors, in fee upon certain trusts. In November, 1816, he made various interlineations and oblitera- tions, the effect of which, as regarded his real estate, was, to con- fine the first devise to his wife for her widowhood, and to strike out the devise to her mother. The original date was struck out, and day of November, 1816, was substituted. The will was never resigned, republished, or reattested, but in the following month the testator caused a fair copy to be made, and added one interlineation not affecting his real estate, but the copy was never signed, attested, or published ; and in December, 1816, the testator died. The court of common pleas were of opinion, that, under such circumstances, the interlineations and obliterations were in- operative, and that there was no revocation of the will as it originally stood. And Dallas C. J. in giving his judgment ob- served : " The effect of cancelling depends upon the validity of the second will, and ought to be taken as one act done at the same time ; so that if the second will is not valid, the cancelling of the first, being dependent thereon, ought to be looked upon as null and inoperative." (el) [See O'Neall t. Fair, I Rich. (S. (/) 2 Brod. & Bing. 650; S. C. 5 Car.) 80 ; Burns v. Burns, 4 Serg. & R. Moore, 484. 567 ; Johnson v. Brailsford, 2 Nott & McC. 272; Card o. Grinman, 5 Conn. 168.] [151] CH. m. § I.J BY OBLITERATION, ALTERATION, ETC. 189 In a modern case in the prerogative court, an executor, having, in pencil, altered a will (by the direction of the testator, who approved of it wlien so altered), and then cancelled it, only in order that another might be drawn up, the preparation of which was prevented by the death of the testator. Sir John Nicholl held, that such cancellation, being preparatory to the deceased making a new will, and conditional only, was not a revocation. (^) * Further examples may be adduced with respect to obliteration. As where lands were duly devised to two trustees upon trust for certain purposes, and afterwards the testator struck out the name of one of the trustees, and inserted the names of two others, leav- ing the purposes of the trust unaltered, though varying in certain particulars, and did not republish his will : it was adj udged, that the testator's intent appearing to be only to revoke by the sub- stitution of another good devise to other trustees, as such new devise could not take effect for want of the proper requisites of the statute of frauds, it should not operate a revocation. (A) So in a later case, (i) a testator made his will, duly executed and attested so as to pass real estates, by which he gave to his younger sons 4,000Z. each, and to his daughters 3,000Z. each, pay- able exclusively out of his real estates ; he afterwards obliterated " four " and " three," and wrote over them " three " and " one ; " but the will was not reexecuted or republished ; he subsequently made a codicil, signed by him, but not executed or attested so as to pass real estates, by which he reduced the portions given to the younger sons and daughters, according to the alterations in the will. The younger sons and daughters were held to be en- titled to the portions originally given to them by the will, on the ground that the testator, by the obliterations and interlineations, did not intend revocation, but a substitution which proved in- effectual. (^) {g) In the Goods of Applebee, 1 Hagg. the testator and in the presence of only 143. See, also, In the Goods of De Bode, one of the subscribing witnesses, inter- n Notes of Gas. 189, accord. ; In the lined another legacy, it was held that the Goods of Eeles, 2 Sw. & Tr. 600 ; In the alteration did not make the will void. Goods of Mitcheson, 32 L. J., P. M. & A. Wheeler v. Bent, 7 Pick. 61. See Jack- 202. son V. Holloway, 7 John. 394.] (A) Short V. Smith, 4 East, 419 ; [Quinn (z) Kirke v. Kirke, 4 Euss. 435. o. Quinn, 1 N. Y. Sup. Ct. 437. Where, (k) See, also, Locke v. James, 11 M. & after a will of real or personal estate was W. 901, accord, duly executed, a scrivener, by direction of [152] 190 REVOCATION OF WILLS. [PT. I. BK. II. Cancellation, under the influence of a mistake in point of law, seems to be equally inoperative to revoke, as if made under a mistake of fact. " If a man," said Lord Ellenborough, in the case of Perrott v. Perrott, (J) » cancel his will under a mistake in point of fact that he has completed another, when he really has not, as was the case in Hyde v. Hyde, the cancellation is void ; and if he cancel it under a * mistake in law, that a second will (complete as to the execution) operates upon the property con- tained in the first, when from some clerical rule it really does not, shall this be deemed a valid cancellation ? " The general principle of the above cases was laid down by Lord General Alvanley in Ex parte Lord Ilchester, Qni) as completely the cases, established, that, where it is evident that the testator, though using the means of revocation, could not intend it for any other purpose than to give efEect to another disposition, though, if it had been a mere revocation, it would have had effect, yet, the object being only to make way for another disposition, if the instrument cannot have that effect, it shall not be a revoca- tion, (w) In connection with this principle, it has been established (as will hereafter fully appear), (o) that a subsequent will made under the impulse of a mistaken notion of facts will not revoke a former one. (o^) The rule ^^^ where the second disposition fails for want of ca- ^'h^'^'th paucity in the legatee to take, it appears to be established gift fails (though it has been thought difficult to make a satis- pacity of factory distinction) that the revocation will be effect- the legatee, ^^i^^^-y (I) 14 East, 440. P. M. & A. 34. But see Powell v. Pow- (m) 7 Ves. 372. ell, L. K. 1 P. & D. 209 ; In the Goods of (n) See, also, the same rule laid down Weston, L. E. 1 P. & D. 633. by Sir Wm. Grant in the same case, 7 (o) Post, 172. Ves. 279. For other cases illustrating (o^) [Where a testator executed a sec- this rule, see Scott v. Scott, 1 Sw. & Tr. ond will, supposing at the time that his 258 ; In the Goods of Cockayne, Dea. & first will was lost, and he subsequently Sw. 177; Dickinson v. Stidolph, 11 C. B. found the first, and destroyed the second, N. S. 341 ; Williams v. Tyley, Johns, declaring that he preferred the first, the 535, per Wood V. C. ; In the Goods of latter may properly be admitted to pro- Middleton, 3 Sw. & Tr. 583 ; Powell v. bate. Marsh v. Marsh, 3 Jones Law (N. Powell, L. R. 1 P. & D. 209. It seems Car.), 77.] that the rule only applies where the revo- (p) Tupper v. Tupper, 1 Kay & J. 665 ; cation is to be dependent on a future Quinn v. Butler, L. R. 6 Eq. Cas. 225 ; event. Dickinson v. Swatman, 30 L. J., \post, 186, note (n) ; Barksdale v. Barks- [153] CH. III. § I.] BY OBLITERATION, ALTERATION, ETC. 191 destruction or mutila- tion of tlie will is a revocation of the codi- cil. A codicil is, primd facie, dependent on the will ; and the de- struction or mutilation of the will is an implied revoca- when a tion of the codicil, (g') But Lord Penzance appears to *have taken a different view of this subject, and to have held that since the passing of 1 Vict. c. 26, s. 20 (see ante, 127), the words of this statute are imperative, and, consequently, that when a testator has once executed a tes- tamentary paper, that paper will remain in force unless revoked in the particular manner named in this section, (r) But it may be doubted whether the view above taken by his lordship is cor- rect, and whether the destruction or mutilation of the will is not an implied revocation of the codicil by reason of the very nature of the instrument, just as the mutilation of the part of any dupli- cate will in the testator's own custody is a revocation of both duplicates. As to what is designated in the statute by the words " some writing," see In the Goods of Hicks, (s) And, indepen- dently of this statute, there have been cases where the codicil has appeared so independent of, and unconnected with the will, that, under the circumstances, the codicil has been established, though the will has been held invalid. It was regarded as a question alto- gether of intention. Consequently, the legal presumption in this case might be repelled, namely, by showing that the testator in- tended the codicil to operate, notwithstanding the revocation of the will. (0 If a will be executed in duplicate, and the testator keeps one dale, 12 Leigh, 535; Laughton v. Atkins, IPick. 548; O'Neall u. Farr, 1 Rich. (S. Car.) 80; Price u. Maxwell, 28 Penn. St. 23; Hairston v. Hairston, 30 Miss. 276; Clark V. Ehorn, 2 Murph. 235 ; 1 Jarman "Wills (3d Eng. ed.), 156; Frenche's case, 8 Vin. Ab. Dev. 0. pt. 4; Eoper v. Con- stable, 2 Eq. Cas. Abr. 359, pi. 9 ; S. C. nom. Eoper v. EadcliflPe, 5 Bro. P. 0. Toml. 360 ; 10 Mod. 233.] (q) Coppin V. Dillon, 4 Hagg. 361 ; Grimwood v. Cozens, 2 Sw. & Tr. 364; In the Goods of Button, 3 Sw. & Tr. 66 ; [Ee Greig, L. E. 1 P. & D. 72 ; unless it is of such a character as to be entirely in- dependent of the will. Grimwood v. Coz- ens, 2 Sw. & Tr. 364 ; Black v. Jobling, L. E. 1 P. & D. 685 ; Goods of Turner, L. E. 2 P. & D. 403 ; 1 Jarman Wills (3d Eng. ed.), 131 ; Tagart v. Squire, 1 Curt. 289 ; Clogstoun v. Walcott, 5 Notes of Cas. 623 ; Ee Halliwell, 4 Notes of Cas. 400.] (r) In the Goods of Savage, L. E. 2 P. & D. 78 ; Black v. Jobling, L. E. 1 P. & T>. 685. (s) L. E. 1 P. & D. 683. See, also, ante, 127. (t) Barrow v. Barrow, 2 Cas. temp. Lee, 335 ; Medlycott v. Assheton, 2 Add. 231 ; Tagart v. Hooper, 1 Curt. 289 ; In the Goods "of Halliwell, 4 Notes of Cas. 400; Clogstoun v. Walcott, 5 Notes of Cas. 623 ; In the Goods of EUice, 27 L. J., P. M. & A. 27 ; [Gage v. Gage, 12 N. H. 380, 381 ; Bates v. Holeman, 3 Hen. & Munf. 502.] [164] 192 REVOCATION OF WILLS. [PT. I. BK. II. Duplicate wills : presump- tion that the de- struction or mutila- part himself, and deposits the other with some other per- son ; and the testator mutilates or destroys the part in his own custody, it is a revocation of both, (m) The presumption of law in such case, liable of course to be * rebutted by evidence, is, that the destruction or mutila- revokes°the ^io" 0^ t^® o^^^ duplicate was done animo revocandi as to '>"'«'^= both, (w) And in Pemberton v. Pemberton, (x") Lord Chancellor Erskine laid down that the same presumption holds, though in a much weaker degree, (a;^) where both the instruments are in the testa- tor's possession : and further, that in a third case, where the tes- tator, having both duplicates in his possession, alters one, and then destroys that which he has altered, there also the same presump- tion holds, though weaker still. (2/) But in Roberts v. Round, («) the testatrix executed her will in (w) Sir Edw. Seymour's case, cited findingof the jury in three successive trials Com. Kep. 453 ; S. C.l P. Wms. 346 ; 2 Vern. 742 ; Onions v. Tyrer, 1 P. Wms. 346; Bunenshaw v. Gilbert, Cowp. 49; Boughey v. Moreton, 2 Cas. temp. Lee, 532; S. C. 3 Hagg. 191; Rickards v. Mumford, 2 Phillim. 23; Colvin v. Eraser, 2 Hagg. 266. (w) Swinburne seems to have been of opinion that it lay on the party relying on the revocation to prove the animus, otherwise the cancellation of one duplicate would not affect the other. See pt. 7, s. 16, pi. 4. But the modei'n authorities, cited in the preceding note, have now set- tled that the animus is to be presumed till the contrary is proved. As to the pre- sumption, when a testator destroys a du- plicate in the possession of his solicitor, and preserves that in his own custody, see Payne v. Trappes, ] Robert. 583, 591 ; [O'Neall V. Earr, 1 Rich. (S. Car.) 80.] (x) 13 Ves. 310. And in that case it also appears that Lord Ellenborough and Sir James Mansfield had each, in charg- ing juries, stated the law to this effect. [The circumstances in Pemberton v. Pem- berton, supra, were as follows : Two parts of a will were found in the possession of a testator at his death, the one cancelled, having various alterations in it, and the other not altered or cancelled ; and the [155] at law on these facts, and the evidence generally, was, that the will was not re- voked ; and in that concltision the lord chancellor finally concurred. " Perhaps," says Mr. Jarman (Wills, vol. 1, 3d Eng. ed. 129), " in such a case, the presumption can hardly he said to lean in favor of the rev- ocation at all ; for the testator having made alterations in one part, and then cancelled the part so altered only, the con- clusion would rather seem to be, that he merely intended, by the destruction of that part, to get rid of the alterations, and to restore the will to its original state."] (a;i) [Re Hains, 5 Notes of Cas. 621.] (y) It was urged by counsel, in the course of the argument, that in this third case, as soon as one part has been altered, the two parts cease to be duplicates, and the altered one then becomes a new will of the latest date, and revokes all others. If that were so, upon the destruction of the altered will, the question would seem to resolve itself into the point whether the prior uncancelled, unaltered one is re- vived by the destruction of the latter al- tered one. As to which see the next sec- tion. (z) 3 Hagg. 548. CH. III. §I.J BY MUTILATION, ETC. 193 duplicate in the year 1814. The will was kept by her, and the duplicate immediately after execution was left with her solicitor, who retained possession of it till the year 1827, when he delivered it to her, at her request. On her decease, in the year 1830, the will and duplicate were found in her portfolio, which was on her bed at the time of her death. The will was inclosed in an envelope, indorsed in her handwriting, " My will, dated the 11th of April, 1814," and with the word " mine " written by her in pencil on the * outer sheet of the will. The duplicate had been mutilated by cutting out the names of several of the devisees ; and Sir John NichoU held that such mutilation was neither a total or partial rev- ocation. The learned judge, in pronouncing his judgment, made the following observations : " What, upon the face of the instru- ment, are the sound legal construction and presumptions ? Sup- pose that the mutilated instrument alone had been found, and that no duplicate had ever existed. This mutilation of the first sheet, leaving the signature untouched, would not be a total revocation ; it would be a revocation of those particular devises only ; but there being two papers, both in the deceased's possession, the presump- tion of law would he, thai by the preservation of one duplicate en- tire, she did not intend a revocation of these particular devises, otherwise she would have mutilated both duplicates. The con- struction then to be put upon this act of mutilation (for it clearly appears to have been her own act), is, that at most it was a prep- aration for a projected alteration, to which she had not finally made up her mind, or which she had abandoned ; and, therefore, she preserved entire the duplicate which she had always retained in her own possession, and on which she had written the word "mine." However, in Doe v. Strickland, (a) where the testator had died with two instruments both in his own keeping, the one a copy of the other, and which the jury (on the trial of an ejectment) found he intended should form his one will in two parts, and he had ob- literated (it being a case before the wills act) certain passages in one of the two, leaving the other unaltered, and the jury also found that the obliterations were meant by him to be final alterations and to stand as his last will, the court of common pleas held that the obliterations in the one instrument operated as a revocation of the corresponding passages in the other. (a) 8 C. B. 724. VOL. I. 13 [156] 194 REVOCATION OF WILLS. [PT. L BK. n. In another case under the old law, where a father, after having made his will, being displeased with his son, by an * in- terlineation of his will, excluded him from all share in his property but one shilling, and also by a codicil made for that purpose, declared his determination to the same effect; but afterwards being reconciled to his son, the testator cancelled the codicil, by drawing his pen across it, but the interlineation was left standing in the will ; (a^) it was held by Sir W. Wynne, in the ecclesiastical court, and afterwards by Sir W. Grant M. R., that the cancellation of the codicil had the effect of cancelling the interlineation. (S) So it was held in the case of draft which a testator signed, and afterwards executed a will from it ; if he should afterwards cancel the will animo revocandi, the draft would be thereby also revoked, (c) If a testament was in the custody of the testator, and upon his death it is found among his repositories muti- lated or defaced, the testator himself is to be presumed to have done the act ; {d) and it has already appeared that the law further presumes that he did it animo rev- tion is, that ocandi. (e) So where a testator has a will in his own he muti- 1 1 -n lated it on- custody, and that will cannot be found after his death, camdi: the presumption is that he destroyed it himself ; (e^) it an inter- lineation and a cod- icil to the same ef- fect; by cancelling one, the other is cancelled : cancella- tion of a will can- cels the signed draft from which it was pre- pared. Proof of mutilation : If a will in testator's custody be found mu- tilated, the presump- (oi) [With regard to this act, Mr. Jar- man; (1 Jai-man Wills, 3d Eug. ed. p. 130, note (/), takes occasion to observe : "Here it occurs to remark, that testators should be dissuaded from making or altering their wills (as they are often disposed to do) under the influence of any temporary ex- citement occasioned by the ill-conduct of a legatee; and still more from recording their resentment in their wills, which may have the effect of wounding the feelings of, and casting a stigma on, the offending party long after the transaction which gave oc- casion to the initation has been effaced from recollection, or is remembered only to be regretted."] (b) Uttersou v. TJtterson, 3 Ves. & B. 122. (c) 1 Phillim. 400. (d) Swinb. pt. 7, s. 16, pi, 5 ; Davies ti. Davies, 1 Cas. temp. Lee, 444; Lambell [157] V. Lambell, 3 Hagg. .568 ; [Baptist Church v. Eobbarts, 2 Penn. St. 110.] (c) Ante, 147 ; 3 Hagg. 568; [In re Will of Engelina S. White, 25 N. J. Eq. 501, 503 ; Smock v. Smock, 3 Stockt. 156 ; Baptist Church v. Kobbarts, 2 Penn. St. 1 10.] And the law is not different though the testator appears to have gummed the signature on again in its original place. Bell V. Fothergill, L. E. 2 P. & D. 148. [(el) Holland w. Perries, 2 Bradf Sur. 334 ; Jones v. Murphy, 8 Watts & S. 275 ; Steele v. Price, 5 B. Mon. 68 ; Bulkley v. Eedmond, 2 Bradf Sur. 281 ; Baptist Church v. Robbarts, 2 Penn. St. 110 ; Bound v. Gray, 1 Geo. 36; Weeks v. M'Beth, 14 Ala. 474; In re Johnson's Will, 40 Conn. 587, 588. But in order to raise this presumption the court must be satisfied that the will was not in existence at the time of the death of the testator. OH. in. § I.] BY MUTILATION, ETC. 195 cannot be presumed that the destruction has taken place if it cannot by any other person without his knowledge or authority ; the pre- ' for that would be presuming a crime. (/) And this pre- 1"^^^ he sumption holds with respect to * duplicate wills : hence destroyed ^ ^ ^ ■*■ ^ ■*■ it ammo if a will was executed in duplicate, and the testator has rewcandi: the custody of one part, and it cannot be found after his eo where death, the presumption of law is, that he destroyed it hasthecus- animo revocandi ; and both parts are consequently to be or £^0 da- considered revoked, unless such presumption be rebut- ^'jfij'® ted.(^) There can be no doubt, that if a will duly executed is destroyed in the lifetime of the testator without his authority, it ^„ ^^^^_ may be established, upon satisfactory proof being given ^"S^? ^'"' of its having; been so destroyed, and also of its con- beenun- ° . . . duly rnuti- tents. (A) The law is the same, where a wife, having lated or de- , power to dispose of property by her will, makes her will may'be'es- and afterwards destroys it by the compulsion of her hus- '*''''*^*- Finch w. Finch, L.E.1 P. &D.371. Where the will has been removed from the custody of the testator without any act of his, it may be admitted to probate notwithstand- ing the presumption of revocation in or- dinary cases. Minkler v. Minkler, 14 Vt. 128 ; Jackson v. Brown, 6 Wend. 173.] (/) Helyar i>. Helyar, 1 Cas. temp. Lee, 472 ; iVIumford v. Eickards, 2 Phillim. 23 ; Loxley v. Jackson, 3 Phillim. 126 ; Lillie V. Lillie, 3 Hagg. 184; Wargent v. Hel- lings, 4 Hagg. 245 ; Welch w. Phillips, 1 Moore P. C. Rep. 299 ; James v. Cohen, 3 Curt. 770 ; Williams v. Jones, 7 Notes of Cas. 106 ; Brown v. Brown, 8 El. & Bl. 882 ; In the Goods of Mitcheson, 32 L. J., P. M. & A. 202 ; [Davis u. Sigourney, 8 Met. 487, 488 ; Eckersley v. Piatt, L. E. 1 P. & D. 281 ; Wood v- Wood, L. R. 1 P. & D. 309 ; Finch v. Finch, L. E. 1 P. & D. 371 ; In re Johnson's Will, 40 Conn. 587, 588.] But this presumption may be rebutted, as by showing that he had no opportunity of so doing, or that it has been lost, or destroyed without his privity or consent. 3 Hagg. 184, 185; 4 Hagg. 249 ; Brown v. Brown, 8 El. & Bl. 876, 889 ; Patten v. Poulton, 1 Sw. & Tr. 55 ; Wood V. Wood, L. R. 1 P. & D. 308 ; [Davis i;. Sigourney, 8 Met. 487, 488 ; Legare a. Ashe, 1 Bay, 464 ; Clark v. Wright, 3 Pick. 67; Bowen k Idley, 11 Wend. 227; S. C. 1 Edw. Ch. 148; Pat- terson V. Hickey, 38 Geo. 1.56.] And foi this purpose declarations of the testator to various members of his family down to a few days before his death, expressive of his satisfaction at having settled his af- fairs, and intimating that his will was left with his attorney, were held to have been properly admitted. Whiteley v. King, 1 7 C, B. N. S. 756 ; [In re Johnson's Will,. 40 Conn. 587.] And this presumption does not apply to a case where the testa- tor became insane after the execution, and continued insane until his death., Sprigge V. Sprigge, L. R. 1 P. & D. 608 ; see ante, 147. The evidence to rebut the presumption must be clear and satisfac- tory. Eckersley v. Piatt, L. R. 1 P. & D. 281. See, also. In the Goods of Shaw, 1 Sw. & Tr. 62. [g] Rickardsy.Mumford, 2 Phillim. 23; Colvin V. Eraser, 2 Hagg. 266. See, also, Saunders i>. Saunders, 6 Notes of Cas. 51'8. (7i) Trevelyan v. Trevelyan, 1 Phillim. 149; see past, pt. i. bk. iv. ch. ii. § vii, p. 378. [158] 196 REVOCATION OF WILLS. [PT. L BK. 11. band, (i) So where, after the death of the testator, his will and codicil were wrongfully torn by his eldest son ; the court, by means of some pieces which were saved, and by oral evidence, having ar- rived at the substance of the instrument, pronounced for them. (A;) So, in Podmore v. Whatton, (l) where there was satisfactory evi- dence that the defendant (the brother of the deceased, who had taken out letters of administration) had possessed himself of the will after the death of the testator, * and had suppressed or de- stroyed it, Sir J. P. Wilde granted letters of administration with the will annexed to the residuary legatee. It should be observed that the same judge, in Wharram v. Wharram, (m) appeared to doubt (but, it is submitted, without sufficient reason) whether the courts have been justified in allowing a will to be proved by parol evidence only, where it has been shown to be lost or destroyed, and to doubt the soundness of the doctrine laid down by the court of queen's bench in Brown v. Brown, (n) that parol evidence of the contents of a lost instrument may be received as much when it is a will as any other. This question will be considered more fully hereafter (^post, pt. I. bk. IV. ch. n. § VII. p. 378), with ^oawiii *^® subject of the probate of lost wills generally. So if mutilated a will be wholly or partially mutilated or destroyed by whilst more the testator whilst of unsound mind, it will be pro- may be es- nounced for as it existed in its integral state, that being tabiished. ascertainable, (o) It must be borne in mind that the onus of making out that the Theorem! of cancellation of a will was the act of the testator himself, showmg a cancel- lies upon those who oppose the will. Accordingly, where the act of a holograph instrument, purporting to be a codicil, was lies 'on ^'""^ Sent anonymously by the post to one of the legatees o'^'o^sethe ^^'^^'i therein, it was admitted to probate, though par- will- tially burnt and torn across, the handwriting being satis- factorily proved and the confirmatory and adminicular proof being sufficient to satisfy the court that it was a genuine instrument (p). (t) Williams v. Baker, Prerog, June 1, St. Leonards, L. E. 1 P. D. 154 ;] post, 1839. * 162. (k) Foster v. Foster, 1 Add. 462. See, (o) Scruby v. Fordham, 1 Add. 74; In also, Knight v. Cook, 1 Cas. temp. Lee, the Goods of Brand, 3 Hagg. 754 ; In the 413. Goods of Shaw, 1 Curt. 905 ; [Borlase „. {I) 3 Sw. & Tr. 449. Borlase, 4 Notes of Cas. 139 ; Ee Downer, (m) 3 Sw. & Tr. 301. 18 Jur. 66 ; ante, 147, note (r).] In) 8 EL & Bl. 876 ; [Sugden v. Lord {p) Hitehins u. Wood, 2 Moore P. C. [159] C. 355-447. CH. III. § II.] BY A SUBSEQUENT WILL. 197 SECTION II. Revocation hy a Subsequent Testamentary Disposition. "Concerning the making of a latter testament," says Swin- burne, (g') " so large and ample is the liberty of making * testa- ments, that a man may, as oft as he will, make a new testament even until his last breath ; neither is there any cautel under the sun to prevent this liberty. But no man can die with two testa- ments, and therefore the last and newest is of force ; so that if there were a thousand testaments, the last of all is the best of all, and maketh void the former." It is indeed a necessary consequence of the ambulatory nature of a will, that the last testamentary disposition of property by a testator shall be operative, to the exclusion of any previous con- trary or inconsistent one. (g'^) Consequently, before the passing of the new statute of wills, though in order that a subsequent will or codicil of lands might revoke a prior one, such later will or codicil must have been executed pursuant to the statute of frauds ; yet a will of personalty, however solemnly and formally made, might have been totally or partially revoked by another subsequent will or codicil, or other instrument, however informal with respect to language or execution, provided it could be con- sidered a testamentary paper, according to those rules of the ec- clesiastical court which this treatise has already attempted to point out. (r) Nor was it necessary, in order to produce such effect, that in the latter testamentary paper there should be any mention of revoking the former, (s) And this is still the law with respect to the effect of subsequent testamentary dispositions, made before January 1, 1838; because the statute of Victoria does not extend to them. With respect, however, to cases within the operation of the new law, no revocation, either total or par- tial, can be effected by means of a subsequent will, or codicil, or other testamentary disposition, unless the same be executed with the solemnities required by that act. (s^) (?) Ft. 7 s. 14, pi. 1. (r) See ante, 66-110; Helyar v. Helyar, (?i) [Keese v. Probate Court of Newport, 1 Cas. temp. Lee, 472. 9 E, I. 434 ; lu re Fisher, 4 "Wise. 254 ; (s) Swinbu pt. 7, s. 14, pi. 4. Simmons v. Simmons, 26 Barb. 68; Flood (s^) [Ante, 127, note (A^).] V. Howser, 1 JSTott & McC. 321.] [160] 198 REVOCATION OF WILLS. [PT. I. BK. 11. It had been sometimes objected, that although instructions The statute neither reduced into writing in the presence of the * tes- ot frauds , . • ^ . , ■i-i didnotpre- tator, nor read over to him, might operate as a will ocat^V^^' so long as they were put into writing in his lifetime, («) steSn'r yet that such testamentary paper could not revoke a for a sub- pj-joj. ^[n -^vithout violation of the twenty-second section sequent ^ • i i i '"''• of the statute of frauds, whereby it was provided, that " no will in writing, concerning any goods or chattels or personal estate shall be repealed, nor shall any clause, devise, or bequest therein be altered or changed by any words, or will by word of mouth only, except the same be in the life of the testator com- mitted to writing, and after the writing thereof read unto the tes- tator, and allowed by him, and proved to be so done by three wit- nesses at the least." But it was held that the statute did not prevent a revocation by such means. The case of Sellars v. Garnet (m) in the prerogative court, October 1748, was full to this point ; for there an executed will was held to be revoked by a will written while the testator was alive ; but he died before it was brought to him, and the contents thereof were proved by wit- nesses who heard him give the instructions agreeable to what was written down. It was insisted that this parol evidence could not be received ; that it was to revoke a written will by parol, con- trary to the statute ; but both Dr. Bettesworth in the prerogative court, and the delegates who affirmed this sentence in 1751, were of opinion that it was a will in writing ; that the parol proof of the instructions ought to be received ; and that it was not a case within the statute of frauds. A prior ■^°^ ^^^ *^e statute interfere to prohibit the introduc- ''okeFb a ^^°^ °^ parol evidence to prove the fact of a non-appear- subsequent ing will having existed subsequent to the will found on pearing the death of the testator. Accordingly, in Helyar v. ferent pur- Helyar, (i)) Sir G. Lee held that the execution of a P""^*^' second will, with a different executor and residuary legatee, was by law a revocation of * the first, though the second did not then appear, (a;) So in Brown v. Brown, (y) a testator, («) See ante, 70, 71. {x) [See Jones v. Murphy, 8 Watts & («) Cited by Sir George Lee in tlie case S. 275.] See post, 178 et seq., as to whether of Helyar v. Helyar, from his own MS. the first will would be revived by the rev- notes, 1 Fhillim. 430; S. C. 1 Cas. temp, ocation of the second. Lee, 509. (y) 8 El. & Bl. 876. (v) 1 Cas. temp. Lee, 472. [161] [1621 CH. III. § II.] BY A SUBSEQUENT WILL. 199 after the new wills act, executed a will, and afterwards a second one, which he took away with him. After his death the earlier will was found, but the second could not be found. Secondary evidence was given which showed that the second will was incon- sistent with the first and revoked it ; and it was held that the second will must be presumed to have been destroyed by the tes- tator animo revooandi, (z) and that consequently, the first will having been revoked by it, the deceased died intestate. But where the revocation of an existing will is sought to be estab- lished by the proof of the execution of a subsequent will, not appearing, the evidence ought to be most clear and satisfactory, and if parol evidence alone be relied on, such evidence ought to be stringent and conclusive, (a) But the mere fact of making a subsequent testamentary paper does not work a total revocation of a prior one, unless ^ prior tea- the latter expressly or in effect revoke the former, or tamentary . , '' paper not the two be incapable of standing together, (a^) for though revoked by it be a maxim, as Swinburne says above, that " no man quent one, can die with two testaments," yet any number of in- b" i^ncon-*''^ struments, whatever be their relative date, or in what- ^'^'^°' = ever form they may be (so as they be all clearly testamentary), may be admitted to probate as together containing the last will of the deceased. (6) And if a subsequent testamentary paper be (z) See ante, 157. Wise. 254. A legacy bequeathed to a (a) Cutto V. Gilbert, 9 Moore P. C. 131. granddaughter, by a codicil "in lieu " of 140, 141. [See M'Beth v. M'Beth, 11 Ala. a devise in the will to her mother, who 596 ; Davis v. Sigonrney, 8 Met. 487 ; Dur- had since deceased, is a revocation of the fee V. Durfee, 8 Met. 490, note; Legare original devise to the mother. Brownell V. Ashe, 1 Bay, 464 ; Bowen v. Idley, 1 o. De "Wolf, 3 Mason, 456.] Edw. Ch. 148; S. C. 11 Wend. 227; (6) See a strong instance of this in Mas- Clark u. Wright, 3 Pick. 67 ; Weeks v. terman v. Maberly, 2 Hagg. 235 ; and for M'Beth, 14 Ala. 474; Brown y. Brown, 10 other examples, see ante, 107, note [x) ; Yerger, 84 ; Clark c^. Morton, 5 Rawle, Stoddart v. Grant, 1 Macq. H. of L. 163 ; 242; Betts v. Jackson, 6 Wend. 173; Richards j^. Queen's Proctor, 18 Jur. 540. Steele v. Price, 5 B. Mon. 68 ; Jones v. See, also, pos(, 162, note (c) ; In the Goods Murphy, 8 Watts & S. 275.] of Graham, 3 Sw. & Tr. 69 ; Geaves v. (oi) [See Reese v. Court of Probate of Price, lb. 71 ; In the Goods of Budd, lb. Newport, 9 K. I. 434. A will or codicil 196; Birks v. Birks, 4 Sw. & Tr. 23; may operate as a revocation of a prior tes- Lemage v. Goodban, L. R. 1 P. & D. 57, in tamentary instrument, by the effect either which last case, by a blunder, clauses had of an express clause of revocation, or of been omitted in a subsequent copy made an inconsistent disposition of the pre- of a will, and the copy and the original viously devised property. In re Fisher, 4 will, having both been duly executed, were 200 REVOCATION OF WILLS. [PT. I. BK. II * partially inconsistent with one of an earlier date, then such latter instrument will revoke the former as to those parts only where they are inconsistent. (J^) Where, however, a testator by a paper purporting to be " his last or unless ^^^1'" ^.nd in which executors were appointed, disposed the latter of a vart only of his personal estate, and did not ex- be a sub- r J ^ •. r IJ Btantive pressly revoke a former testamentary paper, it was nela '''"' by Sir Herbert Jenner Fust, in Plenty v. West, (c) that the earlier paper was nevertheless revoked by the later, notwith- standing the two were not wholly inconsistent ; there being noth- ing to show that he intended them to be taken conjointly as his will. And it was said by the judge that he knew of no case where the testator called a will " his last will " in which the court has li«ld former papers to be included. And this decision was recog- nized and acted upon, after much consideration, by Sir John Dod- son, in Cutto v. Gilbert. (oT) In Plenty v. West, the judge further remarked that the appoint- effect of ment of executors has always been considered to effect a ment'ofex- complete disposition. But this, as it has been since held ecutors. i-,y gjj. John Dodson, is by no means conclusive of the testator's intention to constitute a substantive will, (e) * Con- A ner versely, where by a testamentary paper, which was ex- disposing ecuted as a will and not as a codicil, all the testator's of all the . . ' . , , estate property is given to a particular person, without the making appointment of any executor such paper will operate as admitted to probate as together containing cil in Cutto v. Gilbert, post, 165, and of the will. See, also, In the Goods of Nick- the lords justices in Freeman v. Freeman, alls, 4 Sw. & Tr. 40. post, 166, together with the cases cited (fti) [Brant v. Wilson, 8 Cowen, 56 ; above, appear to render the aiubority of Joiner!;. Joiner, 2 Jones Eq. (N. Car.) 68 ; Plenty v. West at the least doubtful. And Price «. Maxwell, 28 Penn. St. 23, 38; in Lemage u. Goodban, u6i supra. Sir J. P. Fleming v. Fleming, 63 N. Car. 209.] Wilde regarded it as overruled. (c) 1 Robert. 264; S. C. 4 Notes of (d) Prerog. Nov. 23, 1 853, and March 3, Gas. 103 ; S. C. coram M. R. 16 Beav. 173. 1854, 18 Jur. 560 ; post, 165. But instances may be found where a paper (e) Richards v. Queen's Proctor, 18 calling itself a last will and testament has Jur. 540 ; Stoddart v. Grant, 1 Macq. H. been admitted to probate as an addition to of L. 163, 173. And where a second will a former will. In the Goods of LufFman, appoints a fresh executor, if the wills are 5 Notes of Cas. 183; In the Goods of not inconsistent, probate maybe granted Langhorn, 5 Notes of Cas. 512. And see, to both the executors. In the Goods of further, In the Goods of Holt, 6 Notes of Leese, 2 Sw. & Tr. 442 ; In the Goods of Cas. 93, 96 ; 2 East, 494, 595, by Lord Graham, 3 Sw. & Tr. 69 ; Geaves v. Price, Ellenborough and Lawrence J. And on 3 Sw. & Tr. 71. the whole the decision of the privy coun- [163] [164] CH. III. § II.] BY A SUBSEQUENT WILL. 201 a total revocation of a prior will, even though an execu- ^ _ ° an execu- tor may have been appointed by such prior will. For tor, wholly the later paper being, in fact, a will disposing of all the prior will, property, although there is no express revocation of the poining*^' former will or of the appointment of an executor, is, ex «^«'="t<"'s- necessitate, a revocation of the former. (/) It may here be observed, that a paper of a date prior to a will with a revocatory clause may be admitted to probate. Effect of provided the court is satisfied that it was not the intention revocatory of the testator to revoke that particular legacy or benefit, subsequent Thus, in the case of Denny v. Barton, (^) where there ^'"• was a letter to the executors directing the payment of a legacy, and a clause of revocation in a subsequent will, it was held that the legacy was not revoked by a general revocatory clause. So in Gladstone v. Tempest, (A) checks written in 1833 by the de- ceased on his banker, but not intended to have effect until after his death, were pronounced for as part of the testamentary dispo- sition of the deceased, notwithstanding he had, in 1834, formally executed a will disposing of the whole of his property, and con- taining a full clause of revocation. Upon the same principles it has been decided, in the courts of common law, that a subsequent will is no revocation, Mere fact unless the contents of it are known ; and it is not to will exist- be presumed, from the mere circumstance of another will }JJ,f merate having been made, that it revoked the former. As where * reroca- it was found by a special verdict that the testator after least in the the * making of a former will made another will in writ- law-courts: ing ; but what the contents and purport were the jury did not know. The second will was holde.n not to be a revocation of the first ; for the other will might concern other lands, or no lands at ail, or be a confirmation of the former, (i) And though a will (/) Henfrey v. Henfrey, 2 Curt. 468; "that what Lord Hale is said to have affirmed in the Privy Council, i Moore laid down in a former case upon the same P. C. C. 29. will (Seymour v. Nosworthy, Hard. 376), {g) 2 Phillim. 575. namely, that 'a second substantive inde- (h) 2 Curt. 650. pendent will, though it does not by ex- (i) Hitchins u. Bassett, 3 Mod. 203 ; press words import a revocation of a for- S. C. Comb. 90 ; 2 Salk. 592 ; 1 Show, mer will, or pass any land, amounts in 537, affirmed in the House of Lords, law to a revocation,' is either not cor- Show. Cas. Pari. 146. " Hence it seems rectly reported, or if it be, is overruled to follow," says Mr. Serj. Williams, in his by Hitchins i/. Bassett." [Evidence that note to Duppa v. Mayo, 1 Saund. 279 h, a subsequent will had been made by the [165] 202 REVOCATION OF WILLS. [PT. I. BE. II. though it be express- ly found to be different from a former will, if the particulars be un- known : be expressly found to be different from a former, yet if it be declared that it is not known in what that differ- ence consisted, it will be no revocation in law thereof. Thus, where it was found by a special verdict (Je) that the testator did make and duly publish another will in writing in the presence of three subscribing witnesses who duly attested the same ; that the disposition made by the testator by the second will was different from the disposition in the former will, but in what particular was unknown to the jury ; but they did not find that the testator cancelled the second will, or that the devisee under the first will destroyed the same, but what was become of the second will the jury could not tell : it was adjudged in the king's bench, on error, reversing the judg- ment of C. B. to the contrary, that the second will was no revo- cation of the first ; and the judgment of the court of king's bench was affirmed in the house of lords. (T) However, in Cutto v. Gilbert, (rri) Sir John Dodson declined to recognize these doctrines of the common law. In that case a testator, having duly executed his will, subse- quently executed another testamentary paper, which was * not found at his death, and the contents of which were unknown, save. that it/was headed "last will;" and that learned judge, on the authority of Plenty v. West (already cited), held that the former will was revoked by the execution of the latter, being of opinion that the execution of a will of personalty amounts to a revocation of a former will, whether the contents of the later will are known or not, provided there be, in substance and effect, revocatory words. But this decision was reversed in the privy council ; their lordships being of opinion that the words, " this is my last will," did not import a later will, of which nothing is known but that it was headed " last will," is no revocation. testator and had been etoleu from him, together with proof of his declarations after the will was stolen, that he would die intestate and leave his property to be distributed according to the statute, was held, in the absence of all proof of the contents of the former will, not to be suf- ficient evidence of a revocation of such former will. Hylton v. Hylton, 1 Grat tan, 161 ; Nelson v. McGiffert, 3 Barb. Ch. 158. But see Jones v. Murphy, 2 Watts & S. 275, with regard to the effect [166] of spoliation or fraud in the suppression or destruction of a second will, upon the necessity of showing its contents.] (k) Goodright v. Harwood, 3 Wils. 497 ; S. C. 2 Black. 937 ; Cowp. 87, affirmed in the house of lords, 7 Bro. P. C. 344; I Saund. 279 h. (I) See, also, Dickinson v. Stidolph, H C. B. N. S. 357. (m) Prerog. Nov. 23, 1853, and March 3, 1854, 18 Jur. 560. CH. III. § II.] BY A SUBSEQUENT WILL. 203 that the paper contained a different disposition of the property ; and that the mere fact of so calling it did not render if a revoca- tory instrument, (w) Again, in Freeman v. Freeman, (o) Lord Justice Knight Bruce said, that whatever might be the view of the ecclesiactical courts, he did not think a temporal court bound to say that when a man in an instrument, containing testamentary dispositions by him, describes it as his last will and testament, and otherwise calls it his will, he is to be taken primd facie as mean- ing wholly to annul any former testamentary instrument made by him extending to matters to which the latter does not extend. And accordingly the lord justices held that the expression, " this is my last will and testament," does not operate as a revocation of a former will, without words to that effect, at all events as regards real estate. If two inconsistent wills be found of the same date, or without any date, and no evidence can be adduced establishing Two incon- the posteriority of the execution of either, both are wuisofthe necessarily void, and the deceased must be considered or"without intestate. But in every case the courts will struggle to *">" '^*'®- reconcile them, if possible, and collect some consistent disposi- tion from the whole, (p) But if there is an express clause in a contradiction between * two clauses in a will, it is settled ^oWedby by law that the second part of the will must take effect i^^^^^j^g™' over the first part; but it was held by Lord Romilly ent clause. M. R. that this rule does not apply where a second bequest is made by implication, (c[) but it may be doubted whether this decision was well founded, (r) It may sometimes become a question, in a case where there are several codicils, or other testamentary papers, of differ- Revocation ent dates, whether the dispositions of the latter are to disposi- be considered as additional and cumulative to those of ^substituted the prior, or as a substitute for, and consequently revo- \l^^l\^_ catory of them. As if a testator, by a codicil to his will, strument. should direct a certain mode of making a provision for his wife, and by another subsequent codicil should also direct a provision (n) 9 Moore P. C. C. 131. 1 Powell on Devises (by Jarman), 518, (o) 5 De G., M. & G. 704. See, also, note (3). Birks V. Birks, 34 L. J., P. M. & A. 90. (?) Kerr v. Clinton, 8 L. E. Eq. Cas. {p) Swinb. pt. 7, s. 11, pi. 1 ; Godolph. 462. pt. 1, c. 19, s. 3 ; Phipps v. Earl of An- (r) See post, 186. 7 Bro. P. C. 443, Toml. ed. ; [167] 204 REVOCATION OF WILLS. [PT. I. BK. IL for her in another mode ; on the face of these instruments it might be* doubtful, whether by the latter codicil he intended to increase the provision made by the former, or to revoke it by substituting that contained in the latter, (s) In such cases, the ecclesiastical court will admit parol evidence, in order to inves- tigate the animus with which the act was done ; and if upon such evidence it should appear that the latter codicil, although con- taining no revocatory words, was intended by the testator as a substitute for the former, it shall be thereby revoked, though it remain uncancelled, (f) However, the general principle is, that bequests are, primd fade, to be taken cumulatively, when they are on separate papers, unless they are revocatory of each other, (m) And in a late case (y') in the prerogative court, * it was said by Sir Herbert Jenner Fust, that, whether the case is to be governed by the old law, or by the new statute of wills, parol evidence is not to be admitted, unless there is such doubt and ambiguity on the face of the papers as requires the aid of extrinsic evidence to explain, (iv') win cxe- ■^^ ^ vaaxi executes a will, erroneously supposing it to cuted un- be a copy of his former will, it will be no revocation as der an er- i . . roneous to the parts omitted in the supposed copy, and both ffu w™ instruments will be admitted to probate, (a;) a copy of the former revocation Although a paper merely purporting to be instructions for a will may, under some circumstances, operate as fully cases in- as a will itself, Qy') yet when a will has been subsequently are re- executed, disposing of all the testator's personal estate, lubseljuent and operative by itself, the instructions must be regarded ^'"- as having performed their duty, so that their effect is at (s) See, also, Gladstone u. Tempest, 2 (k) Bartholomew v. Henley, 3 Phillim. Curt. 650 ; Walsh v. Gladstone, 1 Phil. 316, by Sir John Nicholl. See infra, pt. C. C. 294; S. C. 13 Sim. 261 ; In the iii. bk. iii. ch. il. § vii. as to cumulative Goods of Beetson, 6 Notes of Cas. 13. legacies. See, also, Frewen v. Relfe, 2 Bro. C. C. («) Thome v. Rooke, 2 Curt. 799. 221. (w) As to what is to be regarded as [t) Methnen v. Methuen, 2 Phillim. 416 ; such an ambiguity, see post, pt I. bk. it. Greenough v. Martin, 2 Add. 239. See ch. iii. § t. post, pt. HI. bk. III. ch. II. § VII. And (x) Birks v. Birks, 34 L. J., P. M. & A. as to the admissibility of parol evidence, 90. ieepost, pt. I. bk. iv. ch. iii. § v. (y) See ante, 68, 69. [168] CH. m. § II.] BY A SUBSEQUENT WILL. 205 an end, and the will is primd facie a revocation of them, (a) But it is otherwise where the subsequent will is operative only by- reference to the instructions ; for in such case the will and instruc- tions may be admitted to probate as forming together the last will of the deceased, (a) Before the new statute of wills (1 Vict. c. 26) came into opera- tion, a will of personalty might also have been partially Revocation revoked, in some instances, by a subsequent unfinished ishedwili will, which the testator had been prevented, by the act quent un-*' of God, from completing. The rule was, that where finished there was a regular will, and another paper begun as madebe- a new will, which the testator had been prevented, by i, 1838.) the act of God, from finishing, the two papers might be taken together as the will of the deceased, and operation ^ro tanto be given to the latter paper, provided the proof of final intention were clear ; * but it would not wholly revoke the former paper, (b') Thus in Goldwyn & Aspenwall v. Goppell, (c) there was a will regularly executed in Jamaica. The deceased gave instructions for an entire new will ; before he disposed of the residue he be- came incapable. The court pronounced for the two papers, as containing together the will. This had been the constant doctrine of the ecclesiastical court. Where instructions were finished, they were not revoked by an unfinished paper, except as far as it went ; the law presumed that the testator would have adhered to the remainder, (ci) And this continues to be the law with respect to papers made before January 1, 1838. In these cases, it may be observed, that the unfinished instru- ment is not looked upon in the ecclesiastical court as a codicil, {z) Wood V. Goodlake, 2 Curt. 129. the disposition of personalty, and where (o) Hitchings v. Wood, 2 Moore P. C. C. the only defect of the second paper is 355. want of due execution, have been ad- (6) Carstairs v. Pottle, 2 Phillim. 35 ; mitted to probate. See Henf rey v. Hen- Reeves V. Glover, 2 Cas. temp. Lee, 270. frey, 4 Moore P. C. 29, 35, accord. Such (c) Cited by Sir John Nicholl in Har- an admission would indeed be contrary to ley V. Bagshaw, 2 Phillim. 51. the principle on which two papers are in- {d) 2 Phillim. 51, 52. See, also, Mas- corporated for the purpose of probate, viz, terman v. Maberly, 2 Hagg. 236. It is, in order that the prior paper may supply however, necessary here to recur to the imperfections in the disposition of the distinction between "unfinished" and latter. Where the subsequent paper is " unexecuted " wills ; see ante, 73 ; for merely codicillary, then no difficulty arises, it should seem that there is no instance 2 Hagg. 236. where two papers, both complete as to [169] 206 REVOCATION OF WILLS. [PT. I. BK. II. to be taken in addition to the will, but revocative as far as it goes, and to be taken in conjunction with the will. " If this principle," said Sir John Nicholl, in Ingram v. Strong, (e) was rightly understood in other courts, there would seldom be much question about cumulative legacies; for where a paper is codicil- lary, and two legacies are given to the same person, they are cu- mulative : where instructions are pronounced for, as containing to- gether a will, (/) that is, where there is a complete will, and an instrument * intended as an inception of a new will, but not com- pleted, the latter legacy supersedes and revokes the former, and is substituted in the place of it." (^r) Accordingly, in Brine v. Ferrier, (K) a testator, by his will, gave all his property to his wife absolutely. By a subsequent in- complete testamentary paper, he gave all his property to his wife and two other persons, in trust to sell and pay the interest of the proceeds to his wife for her life, and, after her decease, to dispose of the principal to the purposes after mentioned. The testator then gave several legacies and annuities, and directed that, after the death and failure of issue of one of the annuitants, the annuity should be paid to his residuary legatee, but he did not name any. In another testamentary paper, the testator gave legacies and an- nuities to the legatees and annuitants named in the former paper, and also to other persons. Probate of the will and testamentary papers, as containing together the testator'' s will, was granted to his widow. And Sir L. Shadwell held, that the three papers formed together the testator's will ; that the bequest to his wife in the first paper was not revoked, except so far as it was necessary to • provide for the legacies and annuities ; and that the legacies given by the second and third papers were single and not cumulative. Where there is a regularly executed paper disposing both of Case of a real and personal estate, and an unexecuted paper of executed later date, in which the disposition of real and personal realty and estates is blended, so that the realty and personalty are and Tsub- . Hall, 34 Penn. St. 483. The rule applies as well to a case where the testator had children by a former mar- riage, who are provided for in the will, as where he was without children at the time the will was made. Havens v. Van Den Burgh, 1 Denio, 27. See, also, Yerby v. Yerby, 3 Call, 334. But it was ruled in Coates V, Hughes, 3 Binn. 489, that a subse- quent marriage and birth of a child, did not amount to a total revocation of a will. The appointment of an executor, with power to sell, was held good, notwithstanding ; upon the principle, that the subsequent marriage and birth of a child amount to a revocation pro ianto only. And in Tom- linson V. Tomlinson, 1 Ash. 224, it was held that, upon the construction given to the Pennsylvania act of 1794, the subse- quent birth of issue is, in itself, a revoca- tion of a previous will, so far only as re- gards such issue, on the ground that it produces a change in the obligations and duties of the testator.] (s) Swinburne, indeed, in pt. 7, s. 16, pi. 3, says : " Albeit the testator, after the making of the testament, have a child born unto him, I suppose that the testament is not presumed thereby to be revoked, espe- cially if the testator did live a long time after the birth of the child, and might have revoked the testament, and did not." (() 2 Show. 242. The report of this case does not state that the marriage, as well as the birth of the children, was sub- sequent to the will ; but on looking into the proceedings, it appears that the fact was so. See 1 Phillim. 479. The other principal decisions to the same effect in the ecclesiastical courts are, Lugg u. Lugg, before the Delegates, 2 Salk. 592 ; S. C. Ld. Raym. 441 ; 12 Mod. 236 ; Meredith V. Meredith, Prerog. 1711, cited by Sir John NichoU, in Johnston v. Johnston, 1 Phillim. 460; Braddyll v. Jehen, 2 Cas. temp. Lee, 1 93 ; Eyre v. Eyre, cited in Cook V. Oakley, 1 P. Wms. 334 ; Emerson V. Boville, 1 Phillim. 342, where Sir Wil- liam Wynne, in delivering his judgment in 1802, states the rule to have been estab- lished by an uniform course of decisions for above a century. («) Cited in 4 Burr. 2171, note, 2181. Although Sir John Trevor M. R. in Brown v. Thompson, 8 Dec. 1701 (cited in 1 P. Wms. 304, note), held that a sub- sequent marriage and having children, was a revocation of a will of land, yet this was afterwards in some degree denied by the court of common pleas in Driver v. Stand- ring, 2 Wils. 90, and much doubted by Lord Hardwicke in Parsons v. Lanoe, 1 Ves. sen. 191 ; S. C. 1 Wils. 243 ; Ambl. 557, and was not finally settled till the above mentioned case of Christopher V. Christopher. That case was decided by Parker C. B. and Smith and Adams, Barons, against Perrot B.. who thought the words of the statute of frauds too strong to be got over. The statute, it must be allowed, is very strongly worded, " no devise of lands shall be revocable except " by certain modes prescribed by the statute, " ani/ farmer law or usage to the contrary notwithstanding." See, also, the observa- tions of Lord Alvanley, in Gibbons u. Caunt, 4 Ves. 848. The words of the 22d sect, respecting wills of personaltt/ are merely restrictive of revocation by any words or will by word of mouth only. Upon the authority of Christopher v. Chris- CH. m. § v.] BY IMPLIED REVOCATION. 231 * The rul# was afterwards extended to marriage and the birth of a posthumous child. As where A., being unmarried, .•' .. '^ . 80 of a post- devised lands to B. and his heirs ; after the making of humous the will, A. married, and his wife was pregnant, which being known to him, he expressed an intention to revoke his will, and gave directions to an attorney to prepare another w-ill, but died before any other will was prepared ; and after his death his wife was delivered of a son. This was holden to be a revocation of the will, (x) It must be here observed that different views have been en- tertained of the principle on which this species of rev- the prinoi- ocation rested. On the one hand it was considered which this that the revocation was grounded on the implied inten- revolfation tion of the testator to revoke his will under the new ^^ted. state of circumstances which had taken place since the will was made, and upon such implied intention only, and, although, per- haps, no direct assertion to this effect can be attributed to any of the ecclesiastical judges, (y) it is difficult, if not impracticable, to draw any other conclusion from the numerous decisions of the prerogative court connected with this subject, than that the rev- ocation was to be regarded as grounded on an intention, to be implied from the new state of circumstances and new moral tes- tamentary duties which had taken place since the will was made, (z) topher, the same point was afterwards the manner I have already stated, into all ruled by De Grey C. J., Parker C. B., and the circumstances, it is quite obvious that Sir Eardly Wilmot, in the cock -pit, in they examined into and endeavored to get Spragge w. Stone, cited in Brady v. Cubitt, at the real intention ; but it might be Dougl. 35 ; Ambl. 721. opening too wide a door, if this inquiry {x) Doe o. Lancashire, 5 T. E. 49. were to be directed to every change of cir- [See Warner v. Beach, 4 Gray, 163; 4 cums'tances. Those loose rules which pre- Kent, 522.] vailed in Swinburne's time are no longer {y) See the judgment of Sir H. Jenner admitted. Courts have, therefore, re- Fust, in Fox V. Marston, 1 Curt. 498, quired that the rule shall have for its basis 499. a change of intention, produced by, and to (z) " Intention is the principle of fac- be presumed from, some new moral obli- ium, and of revocation. [4 Kent, 523,] gation arising after the will was made; It is the principle of revocation whether it marriage and issue are supposed to pro- be direct by act, or implied by ciroum- duce those new moral duties; every man st&nces;ihe animus testandi ox revocandiis is presumed to intend the making of a the governing principle. By courts holding provision for his family.'' Per curiam, that marriage and the birth of children are 1 Phillim. 473, 474. " The principle is not an absolute revocation, but only an this, that marriage and the birth of issue implied revocation, by their inquiring, in create such a change in the condition of [194] 232 REVOCATION OF WILLS. [PT. I. BK. II. * On the other hand it was contended that the re'vocation was a consequence of a rule of law, or of a condition tacitly annexed by law io the execution of a will, that, when the state of circum- stances under which the will was made became entirely altered by a subsequent marriage and the birth of a child, the will should become void ; and that the operation of this rule of law was altogether independent of any intention on the part of the testa- tor. And of this opinion were all the judges of England (assem- bled in the exchequer chamber, alsente Lord Denman) in the great case of Marston v. Roe dem. Fox, (a) where it was solemnly de- cided that the revocation of the will took place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself. It follows, as an obvious consequence of this conflict of doctrine between the courts of ecclesiastical and common law jurisdiction, that, in the former courts, in order to rebut the presumption of an intention to revoke, it has always been held that any evidence is admissible, in support of the will, which shows a contrary inten- tion ; («!) so that not only the evidence of circumstances has been received for * this purpose, but also parol evidence of the testa- tor's declarations in favor of his will. (6) Whereas in the tem- poral courts, it was finally settled that no evidence of the testator's intention that his will should not be revoked was admissible to rebut the presumption of law that such revocation should take place. (c) There seems, however, to be no doubt that the principle of the the deceased, such new obligations and rule " is founded on the presumption, that, duties, that they raise an inference that a if the will had been made under the altered testator would not adhere to a will made circumstances, it would not be made as it previous to their existence, considering it was. It might exclude one who would be an act of moral duty to revoke that dispo- heir to the whole estate."] aition, in order to make provision for his (a) 8 Ad. & El. 14 ; S. C. 2 Nev. & P. new wife and new issue ; but on the other 504. hand, if there does not arise such a state (ai) [See Brush v. Wilkins, 4 John. Ch. of circumstances as to produce new duties, 510 ; Yerby v. Yerby, 3 Call, 334 ; Havens if the change is provided for, there is no v. Van Den Burgh, 1 Denio, 27; 4 Kent, reason to presume a revoca,tion. The ques- 527.] tion, after all, is one of presumed intention, (b) 1 Phillim. 469; lb. 472; Gibbons whether to die intestate, or, notwithstand- v. Cross, 2 Add. 455; Fox u.' Marston, ing the change of circumstances, to leave l Curt. 494 ; Tapster v. Holtzappfell, 5 the former will existing and effective.'' Per Notes of Cas. 554. curiam, 1 Hagg. 711, 712. [In Warner u. (c) Marston v. Roe dem. Fox, 8 Ad. Bates, 4 Gray, 163, Shaw C. J. said the & El. 14; S. C. 2 Nev & P 504 [195] [196] CH. m. § v.] BY IMPLIED REVOCATION. 233 decision of Marston v. Roe dem. Fox will in future be applied for the decision of cases of this description in the ecclesiastical as well as the temporal courts. (cZ) With reference to this difference in the decisions of the eccle- siastical and common law courts, it should be remarked, that these questions of implied revocation of wills of personal prop- erty came before the spiritual judges wholly unencumbered with those provisions of the statute of frauds which anxiously and care- fully excluded parol evidence, both with respect to the original making and the revoking of wills of land. Marriage and the birth of issue who were unprovided for, was equally a revocation of a will of personalty, though the ^ ^jj] ^^ testator at the time of the making was a widower, and personalty ° in favor of the will was in favor of children by a former marriage, (e) children by But these events would not revoke a will of land in marriage favor of children by a former marriage, one of whom is ^°''^^° ® ■ heir apparent ; because such revocation would operate only to let in the heir to the whole of the estate, and the after born children would derive no benefit whatever from it. (/) If a man, after making his will, married and had a child, the subsequent death of the child would not have revived i" >'^'^'™}, -*■ , ^ of the will * the will, without some act or recognition showing the by the testator's intention that it should take effect. (^) issue: Marriage alone, or birth of a child alone, was not, with- marriage out other special circumstances, sufficient to operate a birth of revocation. (A) In the latest case on this part of the no'revoca-' subject, («') it was held that the birth of a posthumous ^°^'- child was no revocation of a will made after marriage, although there had been no other child of the marriage ; and although neither the testator nor his wife, at the time of his death, were {d) Israeli u. Rodon, 2 Moore P. C. C. 2171 ; Jackson v. Hurlock, Ambl. 495 ; 51, 63, 64 ; Walker v. "Walker, 2 Curt. Shepherd v. Shepherd, cited in Doe «. 854; Matson ^. Magrath, 1 Robert. 680; Lanfeshire, 5 T. R. 53, note; Wells v. S. C. 6 Notes of Gas. 709. Wilson, 5 T. R. 52, note; [4 Kent, 523 ; (e) Hollway v. Clarke, I Phillim. 339 ; Yerby ;.. Yerby, 3 Call, 334 ; Church v. Walker M. Walker, 2 Curt. 854. Crocker, 3 Mass. 17, 21; Wheeler v. if) Sheath v. York, 1 Ves. & B. 390. Wheeler, 1 R. I. 364 ; Brush v. Wilkins, (g) Emerson v. Boville, 1 Phillim. 342. 4 John. Ch. 510 ; M'Cay v. M'Cay, 1 See Wright v. Sarmuda, reported in a Murph. 447 ; Howens v. Van Den Burgh, note to Taylor v. Diplock, 2 Phillim. 266; 1 Denio, 27.] Braddyll v. Jehen, 2 Cas. temp. Lee, 193. (i) Doe v. Barford, 4 M. & Sel. 10. (A) Wellington v. Wellington, 4 Burr. [197] 234 REVOCATION OF. WILLS. [PT. I. BK. II. aware that she was enciente. But although these decisions have settled that the mere subsequent birth of children, unaccompa- but the nied hy other circumstances, proving intention, did not children amount to a presumed revocation, yet they certainly nied'bv*' ^^^ "°* 8° ^^ length of establishing that subsequent cum- °"' marriage was an essential requisite. And in the impor- Btancea tant case of Johnston v. Johnston, (Ic) in the ecclesias- might re- , . voke: tical court, it was held that a will, made by a married man having several children, was revoked by the subsequent birth of other children left unprovided for, aided hy other circumstances clearly concurring to show that it was the intention of the testator that the will should not operate. The learned judge (Sir Johfl Nicholl), in giving his judgment in this case, after showing the foundation of presumed revocation to be a change of intention produced by, and to be presumed from, some new moral obliga- tion, proceeds to observe : " The birth of children, after making a will by a married man, may have imposed as strong a moral duty upon him, forming the groundwork of presumed intention, and may be accompanied by circumstances, furnishing as indisput- able proof of real intention, as if the will had been * made pre- distinction '^'^'^^^ t^ the marriage. Marriage, alone, may possibly in this re- stand upon a different foundation and footing from af- spect be- -^ , ^ ^ ° tween mar- ter-bom issue. Marriage is a civil contract ; the wife binh of may make her own conditions before marriage, in order to provide against the negligence or injustice of the husband. Marriage settlements are usual; the law out of the real property makes a provision for the wife by dower. If she enters into the contract, and takes no precaution of this sort, she takes her chance either of the husband providing for her, or of providing for herself. But after-born issues are parties to no con- tract; they come into the world entirely dependent upon the parent ; and if it is the legal duty of a father, while, living, to maintain his children, so it is a strong moral obligation upon him not to exclude them from a provision after his death. It is true he has a right to do it ; though at one time, at least in par- ticular districts, he had not the right of excluding them ; the law did not allow him to dispose of his whole property ; at present he may if he pleases, and the law can afford no relief ; but by moral obligation there is a strong foundation laid for presuming that he (k) 1 Phillim. 447. [198] CH. III. § v.] BY IMPLIED REVOCATION. 235 did not intend to exclude them. In point, then, of true reason and sound sense, the concurrence of subsequent marriage is not essential in all cases, (k^^ In Gibbons v. Caunt, (Z) Lord Alvanley expressed a strong opinion that a revocation would be presumed from the birth of t, 1.1 .IT /. .1. n T »i issue and birth of children by a first wife, after the date of the subsequent husband's will, and second marriage, although he had marriage: no children by that marriage. The rule of implied revocation was applied only in cases where the wife and children, the new obiects of duty, were "^ '™v}}^^ ' •> , revocation wholly unprovided for, and where there was an entire unless disposition of the whole estate to their exclusion and a disposi- prejudice. (wi) Therefore, in a case where a will was ^iioie es- made by a * married man in favor of his then wife and t^g^'^^f^ his children by her, and he afterwards married again andchil- •^ ' _ _ ^ dren were and had children bf the second marriage, it was held by wholly un- Sir J. NichoU that the will was not revoked, because for: provision was made for the second wife and the children of the second marriage by a settlement entered into before it. And the learned judge said, that it did not appear to him materially to vary the case, whether the provision was out of the husband's or out of the wife's property, (n) So it was holden by the same judge, that a second marriage and the birth of a child was not a revoca- tion of a will made by a widower in favor of the children of a former marriagp and an illegitimate child, where the second wife's fortune, taken under her father's will, was so placed as to form a provision for her and her children, (o) However, in the before mentioned case of Marston v. Roe dem. (P) [Bloomer v. Bloomer, 2 Bradf. Sur. (t) i Ves. 840. 339. Under the statute of Indiana, the (m) Kennebel v. Scrafton, 2 East, 541 ; birth of a child of a testator, after the ex- 1 Saund. 279; Doe v. Edlin, 4 Ad. & El. ecntion of his will, works an entire revoca- 587 ; [4 Kent, 521, 522 ; Jackson v. Jack- tion of his will, unless provision shall son, 2 Penn. St. 212.] So Lord Mans- have been made in the will for such issue, field, in Brady v. Cubitt, Dougl. 40, says, Hughes V. Hughes, 37 Ind. 183. So in " Upon my recollection, there is no case in Ohio, Illinois, and Connecticut ; 4 Kent, virhich marriage and the birth of a child 526, note {d) ; Ash v. Ash, 9 Ohio (N. S.), have been held to raise an implied revo- 383; Tyler v. Tyler, 19 111. 151-. As to cation, where there has not been a dispo- Pennsylvania, see Tomlinson v. Tomlin- sition of the whole estate.'' son, 1 Ash. 224; Young's Appeal, 39 Penn. (n) Talbot u. Talbot, 1 Hagg. 705. See, St. 115; and Iowa, McCullam v. McKen- also, Ex parte Lord Ilchester, 7 Ves. 348. zie, 26 Iowa, 510.] (o) Johnson v. Wells, 2 Hagg. 561. [199] 236 REVOCATION OF WILLS. [PT. I. BK. II. Fox, (p) the common law judges appear to have expressed a strong opinion, that, if there were a child of the marriage, the revocation could not be prevented by the circumstance of an estate, acquired by the testator after the making of the will, de- scending upon the child, and thereby becoming a provision for him; because this would be incompatible with the nature of a condition annexed to the will, which, so far as relates to the existence or extent of the provision, must, in its own nature, have reference to the existing state of things at the time the will itself was made. It was, however, unnecessary to decide that point expressly, because, in the case before the court, the beneficial interest in the estate which had descended on the child of the marriage passed under the will ; and it was held that the subsequent descent of the mere legal estate on him could *not be regarded as having formed any provision for him, but that he must be considered as left wholly unprovided for, as he neither took anything under the will, nor anything (if that could have been sufficient) by descent from his father. The point has since been again considered before the judicial committee of the privy council, in Israeli v. Rodon. (^) And their lordships appear to have adopted the opinion above expressed by the common law judges, and to have applied it to a will of per- sonalty. And Sir H. Jenner Fust, in delivering the judgment of their lordships (on appeal from the court of ordinary in Jamaica), after referring to the judgment of the exchequer chamber, in Marston v. Roe dem. Fox, continued thus : " Therefore the exist- ing circumstances, with reference to which the tacit condition is supposed to be annexed to the will, must be those which existed at the time when the will itself was made, and when the condition was annexed to it." And after adverting to the decisions in the ecclesiastical courts, and particularly those of Johnson v. Wells, and Talbot v. Talbot, and to the reliance placed by the court in those cases on the amount of the property, and the division of it made under the settlement on the second marriage, the learned judge added, " All those circumstances were made to bear upon the question, whether the deceased could be supposed to have intended to revoke his will ; and in those cases, under all the circumstances, the court was of opinion that the will was not re- {p) 8 Ad. & El. 14; ante, 195. (?) 2 Moore P. C. C. 51. [200] CH. III. § V.J BY IMPLIED REVOCATION. 237 voiced. But that would not bear upon the question of annexed condition; because, if the annexed condition is, that the will should not operate upon the occurrence of certain circumstances, then when those circumstances have occurred, the will itself is revoked. And looking to the decision of Marston v. Roe dem. Fox, it appears to us that that is the rule which must be applied for the decision of these cases for the future." (r) * It is, however, to be feared, that if this rule is pursued into all its consequences — if, whenever a will disposes of the whole of the property of the deceased, his subsequent marriage and the birth of a child is to be received as amounting to a total revoca- tion, without any regard to the state of his family, or to the terms of his marriage settlement — cases may occur in which the court will find the application of the rule not a little distressing. It was further solemnly decided, in Marston v. Roe dem. Fox, that in order to take the case out of the general rule, the chil- T . , . . , .,, . . dreti as and to prevent the revocation oi the will, it was not well as the sufficient that a provision was made for the wife only, have "been but that such provision must also extend to the children ^'""Tn^'^ of the marriage. And Tindal C. J. in delivering the "'ler to . ° _ . "^ prevent the judgment of the common law judges, said, " Upon a revocation. careful examination of the several cases which have been decided on this point, we take the rule of law, so far as it is material to the present inquiry, to be this : that, in the case of the will of an unmarried man having no children by a former marriage, whereby he devises away the whole of his property which he has at the time of making his will, and leaves no provision for any child of the marriage, the law annexes the tacit condition that subsequent marriage and the birth of a child operates as a revocation." (s) (r) See accord. In the Goods of Cady- decision is very much questioned in the wold, 1 Sw. & Tr. 34. judgment of Tindal C. J. in Marston v. (s) It was held by Lord Keeper Wright, Eoe dem. Fox, 8 Ad. & El. 62. [There in Brown o. Thompson, 1 Eq. Cas. Abr. has been much legislation upon this sub- 413, pi. 15; S. C. I P. Wms. 302, note t, ject in the American States. " There is 6th ed., which was the case of a will before no doubt," says Chancellor Kent, " that marriage made in favor of a woman whom the testator may, if he pleases, devise all the testator afterwards married, that the his estate to strangers, and disinherit his ■will was not revoked by such marriage children. This is the English law, and and issue, upon the ground that the will the law in all the states, with the excep- made a provision for the wife, and through tion of Louisiana. Children are deemed her for her son, the devise being to her to have suflScient security in the natural and her heirs. But the propriety of this affection of parents, that this unlimited [201] 238 KKVOCATION OF WILLS. [PT. I. BK. n. But now, by the ISth section of the new statute of wills (1 Vict. c. 26), it is enacted, " that every will made by a man or woman shall be revoked by his or her marriage (0 1 Vict. 0.26,8.18: power of disposition will not be abused. If, however, the testator has not given the estate to a competent devisee, the heir takes, notwithstanding the testator may have clearly declared his intention to dis- inherit him. The estate must descend to the heirs, if it be not legally vested else- where. Denn v. Gaskin, Cowp. 657, 661 ; Jackson v. Schauber, 7 Cowen, 187; S. C. 2 Wend. I. This is in conformity to the long established rule, that in devises to take place at some distant time, where no Parol evidence is admissible to show whether the omission was intentional or by mistake; "Wilson v. Tosket, 6 Met. 400 ; Bancroft v. Ives, 3 Gray, 367 ; Con- verse V. Wales, 4 Allen, 512 ; Ramsdill v. Wentworth, 101 Mass. 125; Lorings v. Marsh, 6 Wallace, 337 ; Wilder v. Thayer, 97 Mass. 439 ; or it may appear on the face of the will ; Prentiss w. Prentiss, 11 Allen, 47 ; and the burden of proof is on those who allege that the omission was by design. Ramsdill v. Wentworth, 106 particular estate is expressly created in Mass. 320. "In South Carolina, the inter- the mean time, the fee descends to the heir, ference with the will applies to posthu- But by the statute laws of the states of mous children, and it is likewise the law. Maine (Waterman v. Hawkins, 63 Maine, 156), Vermont, New Hampshire, Massa- chusetts (Genl. Sts. Mass. c.92, §§ 25-28), Connecticut, New York (Rev. Sts. ii. 65, § 49 ; Bloomer v. Bloomer, 2 Bradf. Sur. 339 ) , New Jersey, Pennsylvania, Delaware, Ohio, and Alabama, a posthumous child, and, in all of those states except Delaware and Alabama, children born after the mak- ing of the will, and in the lifetime of the father, will inherit in like manner as if he had died intestate unless some provision be made for them in the will, or other- that marriage and a child work a revoca- tion of the will. In Virginia and Ken- tucky a child bom after the will, if the testator had no children before, Is a rev- ocation, unless smh child dies unmar- ried, or an infant. If he had children before, after-born children, unprovided for, work a revocation pro tanto. In the states of Maine, Massachusetts, Rhode Island, Connecticut, New York, Mary- land, and probably in other states, if the devisee or legatee dies in the lifetime of the testator, his lineal descendants are wise, or they be particularly noticed in the entitled to his share, unless the will an- ticipates and provides for the case. This is confined, in Connecticut, to a child or a grandchild ; in Massachusetts, Rhode Island, and Maine, to them or their rela- tions ; and in New York, to children or other descendants. The rule in Maryland goes will. The reasonable operation of this rule is only to disturb and revoke the will pro tanto, or as far as duty requires. See Walker v. Hall, 34 Penn. St. 483. The statute law of Maine, New Hamp- shire, Massachusetts, and Rhode Island goes farther, and supplies the same relief farther, and by statute no devise or be- to all children, and their legal represen- tatives, who have no provision made for them by will, and who have not had their advancement in their parent's life, unless the omission in the will should appear to have been intentional. 4 Kent, 525, 526. See Blagge v. Miles, 1 Story, 426 ; Doane v. Lake, 32 Maine, 268. quest fails by reason of the death of the devisee or legatee before the testator ; and it takes effect in like manner as if they had survived the testator. By the New York Revised Statutes (vol. ii. 64, § 43), if the will disposes of the whole estate, and the testator afterwards marries, and has issue born in his lifetime, or after his {t) Where the husband was domiciled ceased wife's sister was void, and did not in this country, and had been naturalized, revoke his will, under this enactment, it was held that his marriage with his de- Mette v. Mette, 1 Sw. & Tr. 416. CH. III. § v.] BY IMPLIED REVOCATION. 239 * (except a will made in exercise of a power of appointmenWhen the real or personal estate thereby appointed would not /^^ in default of such appointment pass to his or her heir/ '" be re- , . n . . voked bv customary heir, executor, or administrator, or the person the mar- entitled as his or her next of kin, under the statute of tesSoro/ distributions)." (m) . '"''^"■'^= This section obviously puts to rest (with respect to wills within its operation) all questions as to implied revocations, by marriage, and the birth of issue, by enacting positively that marriage alone shall be an absolute revocation, (w^) death, and the wife or issue be living at his death, the will is deemed to be revoked, unless the issue be provided for by the will or by a settlement, or unless the will shows an intention not to make any pro- vision. No other evidence to rebut the presumption of such revocation is to be received." 4 Kent, 526, 527. See Brush V. Wilkins, 4 John. Ch. 506. In Arkan- sas, Missouri, Indiana, and Michigan, the language of their statutes is substantially the same as in New York. In Iowa, post- humous children unprovided for by the father's will shall inherit the same interest as though no will had been made. If the devisee die before the testator, his heirs shall inherit the amount so devised to him unless from the terms of the will a contrary intent is manifest. Laws of Iowa (Revis. of 1860), p. 407, §§ 2316, 2319. In Georgia, the will is revoked if the testator shall marry or have a child born after making it ; no provision being made for either wife or child in the will, and no alteration being made in the will subsequent to the marriage or birth of the child. Kev. Sts. Geo. 1845, p. 457, § 16. See Holloman v. Copeland, 10 Geo. 79. A testator, in Maine, by his will left certain real and personal estate to his widow during her life and widowhood, to revert to his heirs upon her death or mar- riage, and bequeathed the residue of his estate to his father. Two months after the testator's death, a daughter was born of his widow, and it was held that the reversionary clause above mentioned was not a provision for the child, under E. S. Maine, c. 74, § 8, and that by virtue of that section, she took the same share of the estate that she would had her father died intestate. Waterman v. Hawkins, 63 Maine, 156. The statute of Massa- chusetts gives to a child of the testator, who is born after his father's death, and who has no provision made for him by his father, in his will or otherwise, the same share of his father's estate, both real and personal, that he would have been en- titled to, if his father had died intestate. Genl. Sts. c. 92, § 26. This provision is absolute, and leaves no opening for proof, that the omission was intentional, and not caused by accident or mistake. Such is also the law in Maine. Waterman v. Hawkins, 63 Maine, 156.] (u) See Logan v. Bell, 1 C. B. 872 ; ante, 192, note {q). The reason for this exception is, that a revocation of the will in a case to which the exception applies, would operate only in favor of those en- titled in default of appointment, and the new family of the testator would derive no benefit whatever from it. See In the Goods of Fitzroy, 1 Sw. & Tr. 133; In the Goods of Mc Vicar, L. R. 1 P. & D. 671. See, also. In the Goods of Fen- wick, L. R. 1 P. & D. 319. [In Vermont, where a feme sole made a will, and mar- ried, and a considerable portion of the property disposed of by the will remained in her unaffected on her death by any mar- ital rights of her husband, who survived her, it was held that the will was entitled to probate. Morton v. Onion, 45 Vt. 145.] (ui) [In New York " a will executed by [202] 240 REVOCATION OF WILLS. [PT. I. BK. II. But it possibly might not apply to every instance of implied revocation by a change of condition in the testator ; because it has been held, at least in the ecclesiastical courts, that the concur- rence of marriage is not essential for the presumption of revoca- tion in all cases. («) All such cases, however, appear to be provided for by the 19th jg. section, which enacts, that "no will shall be revoked by no will to any presumption of an intention on the ground of an by pre- alteration in circumstances, (y^^ For although, after the sumption: passing of this statute, it was held (as there has already been occasion to state) (a;) by the common law judges, in Marston V. Roe dem. Fox, that the revocation consequent on marriage and the birth of issue was not, in fact, grounded on " any presump- tion of an intention " of the testator to revoke, but took place in consequence of a rule or principle of law independently of any question of intention ; yet in all cases of implied revocations in the ecclesiastical court the basis of the revocation has always been held to be the intention * of the testator presumed from the alter- ation in circumstances, (?/) and consequently the 19th section of the new statute will prevent such revocation in future. The enactments contained in these two sections lead to conse- quences which may be considered as somewhat harsh ; for, by reason of the former, a man's will must be revoked by his mar- riage without the birth of children, in a case where he had no intention to revoke it, nor any testamentary duty demanding the revocation ; whereas, by the operation of the latter, a will made by a married testator must stand unrevoked, notwithstanding that the subsequent birth of children unprovided for, and other concur- rent circumstances, may raise a case (as in Johnston v. John- ston (s)) of the strongest inference that the testator did not mean to adhere to the will. an unmarried woman shall be deemed re- voiced" is positive, and does not create voked by her subsequent marriage." 2 a mere presumption in favor of revoca- Eev. St. 64, § 39. A., while a resident of tion, subject to be explained. Lathrop v. New Tork, made her will. Subsequently, Dunlop, U N. Y. Sup. Ct. 213.] in Canada, she entered into an ante-nup- («) See ante, 197. tial agreement, by the terms of which she (i>i) [See 4 Kent, 532,533; ante, 187, retained full control of her own property, and note (i-i).] Aftei-wards she married and died. It was {x) Ante, 195. held that by the above provision of the (y) But see contra, per Sir H. Jenner statutes the will was revoked. The ex- Fust, ante, 200. pression of the statute " deemed to be re- (z) Ante, 197. [203] CH. III. § v.] BY IMPLIED REVOCATION. 241 It remains to be considered to what cases these enact- , . , to what ments of the new statute extend. cases the The 34th section enacts, " that this act shall not ex- Vict. c. 26, tend to any will made before the 1st day of January, 1838." And the language here employed seems to show, that if a will were made at any time before that date, and the testator were to marry after the act came into operation, the statute would not apply, and the will would not be revoked thereby ; while on the other hand, such a will might be revoked by the alteration of the condition of the testator taking place at any time during the life of the testator, though aiter January 1, 1838. The construc- tion at first put upon the statute appears to have been, that wills made previously to 1838, with respect to revocations to be effected subsequently, are subject to the provisions of the act. (a) But on a late occasion (6) Sir Herbert Jenner Fust, in a case on motion, held the contrary, and allowed probate to pass on a will made before the 1st of January, 1838, as * unrevoked, though the tes- tator had married in 1839. And the learned judge said, that notwithstanding the court had held, with regard to alterations in any will after January, 1838, that they must be made with refer- ence to the provisions of the act, yet, as to the present point, he was of opinion, by reason of the 34th section, that the will was not revoked. There is another sort of implied revocation, in the nature of ademption ; which arises either when the subject of the implied bequest is altered or parted with, or when the purpose, by ademp- for which it was bequeathed has been provided for by ''™- the testator by other means, (b^} But it will be convenient to postpone treating of this mode of revocation, till the subject of legacies, generally, is considered, (c) It may be proper, however, here to point out a material differ- ence with respect to this species of revocation, between wills of realty and wills of personalty, arising from the office of executor. If the whole subject of a will of realty be adeemed, the will is completely revoked, and is wholly ineffectual ; (c^) but should the (a) See Hobbs u. Knight, 1 Curt. 750; (6i) [See In re Nan Mickel, 14 John. ante, 129, 130, and the cases there cited in 324.] note (m). (c) See post, pt. iii. bk. iii. ch. iii. (b) In the Goods of Shirley, 2 Curt. 657. (ci) [See Gage v. Gage, 12 N. H. 371. VOL. I. 16 [204] 242 REVOCATION OF WILLS. [PT. I, BK. IL same thing happen with respect to a will of personalty, in which an executor is appointed, the will must still be proved in the Under the law in England previous to 1 Vict. c. 26, it was necessary that the testator should be seised of the very same estate in the devised real property, both at the time of the will and at the time of his death. If, therefore, a testator, sub- sequently to his will, by deed conveyed lands which he had disposed of by such will, and afterwards acquired a new free- hold estate in the same lands, such newly acquired estate did not pass by the devise, which was necessarily void ; and this was the effect, even though the testator took the estate, conveyed by him, back again by the same instrument, and had no in- tent to revoke his will. Walton v. Wal- ton, 7 John. Ch. 258 ; Ballard o. Carter, 5 Pick. 112 ; Graves v. Sheldon, 2 D. Chip. 71 ; Herrington «. Budd, 5 Denio, 321 ; Kean's Will, 9 Dana, 25; Woolery V. Woolery, 48 Ind. 523, 531 ; Beck v. McGillis, 9 Barb. 35 ; McNanghton v. McNaughton, 34 N. Y. 201. Thus a de- vise of the fee was revoked by a subse- quent conveyance of the estate to trustees for a term to secure a jointure, though it was relimited to the devisor in fee, sub- ject to the jointure term. Goodtitle v. Otway, 2 H. Bl. 516; Cave v. Holford, 3 Ves. 650. A revocation by alienation may be cither partial or total. A con- veyance by the testator in his lifetime of a part only of the estate devised, revokes the will only to the extent of that part, and does not prevent probate of the will. Hawes v. Humphrey, 9 Pick. 350; Brown 0. Thorndike, 15 Pick. 388; Skerrett v. Burd, 1 Whart. 246 ; M'Taggartu. Thomp- son, 14 Penn. St. 149; Epps v. Dean, 28 Geo. 533 ; Carter v. Thomas, 4 Greenl. 341 ; Floyd u. Floyd, 7 B. Mon. 290 ; Bowen v. Johnson, 6 Ind. 110; Wells v. Wells, 35 Miss. 638 ; Brush v. Brush, 11 Ohio, 287 ; Graves v. Sheldon, 2 D. Chip. 71 ; Parkhill v. Parkhill, Brayt. 239 ; In re Cooper's Estate, 4 Penn. St. 88 ; 1 Jar- man Wills (3d Eng. ed.), 137 ; Balliett's Appeal, 14 Penn. St. 451; Wogan v. Small, 11 Serg. & R. 141; Ferry v. Edminster, 9 Pick. 355, note. In Marshall a. Mar- shall, 11 Penn. St. 430, it was held that when the alteration in the testator's cir- cumstances is such as to render it impos- sible to execute any part of his will, as in Cooper V. Cooper, 4 Penn. St. 88, it will be considered as entirely revoked. But when it can be partially executed, the revoca- tion is pro tanto merely as to that part which cannot be carried into effect. Bal- liett's Appeal, 14 Penn. St. 451, 459. This doctrine, however, of revocation by aliena- tion, did not apply to copyholds ; Vawser V. Jeffery, 3 Russ. 479 ; nor to the devise of an estate held in common or copar- cenary, where afterwards there was a par- tition under which the testator took in sev- eralty part of the very property devised. Luther v. Kidby, 8 Vin. Abr. 148, pi. 30; S. C.cited 3 P. Wms. 170 ; Knollys v. Al- cock, 7 Ves. 564 ; Risley v. Baltinglass, Sir T. Ray. 240 ; Walton v. Walton, 7 John. Ch. 265, 266 ; Barton v. Croxall, Tamlyn, 164. The manner in which the partition is made might, however, have revoked the devise ; as if a testator, having an undivided share of lands in A. and B., devise all lands in A. and upon partition only lands in B. are allotted to him ; in such case nothing passes by the devise. Knollys v. Alcock, 7 Ves. 558 ; 5 Ves. 648. But it was held in Duffel v. Burton, 4 Harring. 290, that if in the partition the testator becomes seised of the whole estate in severalty, it will not revoke the devise, but the additional title acquired does not pass under the will. Another and more considerable exception is, that the doctrine did not apply to the devise of an estate which the testator subsequently mortgaged. Hall v. Dench, 1 Vern. 329, 342 ; S. C. 2 Ch. Eep. 54 ; Baxter v. Dyer, 5 Ves. 656 ; Perkins v. Walker, 1 Vern. 97; 1 Jarman Wills (3d Eng. ed.), 140, 141. A mortgage of «■ portion of the es- tate devised will revoke the devise only pro tanlo. M'Taggart u. Thompson, 14 CH. III. V-] BY IMPLIED REVOCATION. 243 ecclesiastical court, as if its dispositions had never been revoked. Thus in Beard v. Beard, ((i) where the testator, by a will, gave Penn. St. 149. A conveyance in trust for sale and payment of debts only partially revoked a prior will of the same property. Temple v. Chandos, 3 Ves. 6S5 ; Jones v. Hartley, 2 Whart. 103. See Hughes v. Hughes, 2 Munf. 209 ; Girard v. Philadel- phia, 4 Eawle, 323 ; Clingan v. Mitchel- tree, 31 Penn. St. 25 ; Stubbs v. Houston, 33 Ala. 555. Bankruptcy had the same partial effect ; the surplus, after payment of creditors, went to the devisee. Char- man V. Charman, 14 Ves. 580. But in these excepted cases, if the testator had at the time of the devise a simple estate in fee, and under the particular deed; Tickner V. Tickner, cited 3 Atk. 742; Grant v. Bridger, L. R. 3 Eq. 347 ; or mortgage, or trust for sale; Harwood a. Oglander, 6 Ves. 199 ; Hodges v. Green, 4 Russ. 28; there was a limitation creating a new es- tate, or a proviso for redemption, confer- ring u, new and different estate on the devisor ; for instance, to such uses as he should by deed or will appoint with remainder to him in fee, the will was re- voked. This, however, was not the case if the re-conveyance was to be to the mortgagor in fee, or to such uses as he should appoint. Brain v. Brain, 6 Madd. 221. Where a testator, having an equitable estate, devised it, the mere subsequent con- veyance to him of the legal estate, exactly coextensive with the equitable estate, or, as it is often expressed, where his equitable was simply clothed with the legal estate, there was no revocation. 1 Jarman Wills (3d Eng. ed.), 144. As when, before 1 Vict. >;. 26, a person bought an estate and then devised it, but died before comple- tion, if there was a valid and binding con- tract of purchase, the devisee of the estate was entitled to have the estate paid for out of his testator's personal estate. Broome V. Monck, 10 Ves. 608. The law is not altered, either by the wills act (see Hood V. Hood, 3 Jur. N. S. 684), or Locke King's act (17 & 18 Vict. c. 113), but by the act amending the last cited, viz; the 30 & 31 Vict. c. 69, the devisee takes subject to the lien, unless there is a contrary intention expressed in the will, and such an inten- tion is not to be inferred from a mere direc- tion to pay debts. Although the title may be imperfect at the death of the purchaser, if afterwards perfected, the devisee will be entitled to have the estate conveyed (Gar- nett V. Acton, 28 Beav. 333), subject, however, to the last cited act. Where, under the old law, there was a valid and binding contract before the will to convey in fee, the conveyance of the estate after the will to the testator was no revocation of it (Rose V. Cunningham, 11 Ves. 550; Parker C. J. in Ballard v. Carter, 5 Pick. 119,) and the property passed by it, unless the conveyance of the legal estate was not exactly coextensive with the entire equi- table interest which the testator took by the contract, as where the conveyance was to uses to bar dower (Eawlings v. Burgis, 2 Ves. & B. 382 ; Bullin v. Fletcher, 2 My. & Cr. 432 ; see Plowden v. Hyde, 2 De G., M. & G. 684 ; Ward v. Moore, 4 Madd. 368), the contract being to convey in fee; for in such case the conveyance operated as a revocation, though now the will operates on the estate of the testator at the time of his death. 1 Vict. c. 26, § 24. Where, under the old law, the con- tract was after the will, the property would not pass by it (1 Jarman Wills (3d Eng. ed.), 150), as the will spoke from the date (Langford v. Pitt, 2 P. Wms. 629), unless republished by a codicil (Monypenny v. Bristow, 2 R. & My . 1 1 7 ; Ee Earl's Trusts, 4 Kay & J. 673), although a case of elec- tion might sometimes have been raised; but now the power of disposition, {sxtends over property of every kind,, legal, equi- table, &c. (1 Vict. c. 26, s. 3), and the will speaks from the testator's death (Ib..s. 24); and no conveyance or other act, subse- (rf) 3 Atk. 72. 244 EEVOCATION OF WILLS. [PT. L BK. II. his brother all his real and personal estate, and made him execu- tor ; and afterwards, by a deed-poll, gave his wife all the substance he had, and might thereafter have ; Lord Hardwicke held, that although .the deed-poll, according to the law of husband and wife, could not take effect as a grant or gift to the wife, yet it operated as a revocation to the will as to the whole of the per- sonal property ; but as the executor continued, the will must of necessity be proved in the commons, and the executor would become trustee for the next of kin. (e) quently to the execution of a will, except an act revoking it, prevents the operation of the will with respect to such estate or interest as the testator has power to dis- pose of by will at the time of his death. lb. s. 23 ; 1 Jarman Wills (3d Eng. ed.), 151, 152 ; Woolery v. Woolery, 48 Ind. 523. If a testator, after devising or be- queathing a mortgage, forecloses or takes a release of the equity of redemption, it is a revocation of the devise. Ballard v. Car- ter, 5 Pick. 112. See Brigham v. Win- chester, 1 Met. 390 ; Beck v. M'Gillis, 9 Barb. 35; Swift v. Edson, 5 Conn. 531. A devise of an estate is revoked by a sub- sequent voluntary settlement of the same estate. Lowndes v. Norton, 33 L. J. Ch. 583. See Pettinger v. Ambler, L. E. 1 Eq. 510. But a will is not revoked by a subsequent invalid deed affecting to dis- pose of the same property as that devised by the will. Eord v. De Pontes, 30 Beav. 572. See Beard v. Beard, 3 Atk. 72 ; Doe V. LlandaflF, 2 B. & P. N. R. 491 ; Shove V. Pinke, 5 T. K. 124, 310; Vaw- ser V. Jeffery, 2 Sw. 274 ; Eilbeck v. Wood, 1 Russ. 564 ; Matthews v. Venables, 9 J. B. Moore, 286 ; Simpson v. Walker, 5 Sim. 1 ; 1 Jarman Wills (3d Eng. ed.), 153, 154; Walton V. Walton, 7 John. Ch. 269. In Brown ». Brown, 16 Barb. 569, it was held that if « testator, after the execution of X will by which he devised land, sell and convey the land, it works a revocation of the devise, even though he takes back a mortgage to secure the purchase-money; but if the land be reconveyed to the tes- tator by absolute deed, and he be the owner at the time of his death, the devise will not be revoked and republication of the will is not necessary. If a testator de- vises both real and personal estate, and by an alienation of the real estate revokes the will pro tanto, it then stands as a will of personal estate only, and is revocable ac- cordingly, by any writing sufficient to I'evoke a will of personal estate. Brown V. Thorndike, 15 Pick. 388; Glasscock v. Smithers, 1 Call, 479 ; Clark tf. Ehorn, 2 Murph. 235 ; Witter «. Mott, 2 Conn. 67 ; Walls V. Stewart, 16 Penn. St. 275; Bal- liett's Appeal, 14 Penn. St. 449, 450, 451 ; Cryder's Appeal, 11 Penn. St. 72. If the devisor, after the execution of his will, purchases land which would be included in the general description of the land de- vised by the will, it is no revocation of the will either in whole or in part. Blandin u. Blandin, 9 Vt. 210.] (e) See Henfrey v. Henfrey, Moore P. C. C. 29, 32 ; ante, 164. See In the Goods of Lancaster, 1 Sw. & Tr. 464. CH. IV. § I.] OF THE REPUBLICATION OF WILLS. 245 * CHAPTER THE FOURTH. OF THE EBPUBUCATION OF WILLS. By Stat. 1 Vict. c. 26, s. 22, " no will or codicil, or 1 Vict. intention to revive it. any part thereof, which shall be in any manner revoked, c. 26 : No "will r6- shall be revived otherwise than by the reexecution voked to \\ ' A thereof, (a^) or by a codicil executed in manner herein- (after Jan. before required, and showing an intention to revive the ^^^^^l^l^^ same ; and when anv will or codicil which shall be partly "'?° ^y e 1 111. reexecu- revoked, and afterwards wholly revoked, shall be revived, tion or a such revival shall not extend to so much thereof as shall showing an have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown." In order to examine the effect of this and other clauses of the statute on the doctrine of republication, it is necessary to consider the law as it stood at the time of the passing of the act. SECTION I. Sow a Will may he Republished or Revived. First, as to republications earlier than January 1, 18-38 (when the new act came into operation). By reason of the What will enactments of the 5th section of the statute of frauds a^eepubii- (29 Car. 2, c. 3), no will of lands could be republished, ;fii°°f°** except by reexecution in the presence of three attesting personal- witnesses, or by a codicil duly executed according to the took place statute, (a) But as that section did not apply to wills Jan. 1838: of personalty, such a will might be republished, not only by an * unattested codicil, or other writing, but by the mere parol acts or (al) [See Barker v. Bell, 46 Ala. 216.] 312 ; Jackson v. Holloway, 7 John. 394 ; (a) 1 Saund. 268 ; 1 Powell on Devises, Love v. Johnston, 12 Ired. 355.] 609, 3d ed. ; [Jackson v. Potter, 9 John. [2051 [206] 246 OF THE REPUBLICATION OF WILLS. [PT. I. BK. II. declarations of the testator. (J) It has indeed been said, that there must be some difficulty in holding that the statute, by the prohibition, in section 19, of nuncupative wills, has not in effect prohibited nuncupative republications, (e) But, upon a closer examination of the subject, it should seem that the statute does not affect the question, (t?) It must be remembered, that no pub- lication nor formalities of execution are required either by the statute of frauds, or the general law, for the validity of a will of personalty, if made before the statute of Victoria came into operar tion. (e) It has already been shown that such a will need not be executed by the testator ; it is sufficient if it be in writing, and approved of by him before his death. (/) Hence, it should ap- pear, that if a will of personalty, which has been revoked, or made at a distant period, be afterwards sufficiently recognized as his operative will, by the parol acts or declarations of the testator, the will so recognized becomes, as any other written document would, his legal will of the date of the recognition. A will of personalty (not within the operation of stat. 1 Vict. c. 26) appears to stand nearly in the same situation as a will of lands did before the stat- ute of frauds ; it must have been in writing, by the provisions of the statute of vrills, but no other formalities were necessary ; and we find that, before the statute of frauds, and after the passing of the statute of wills, it was holden that a written will of lands might be republished by parol ; (^) as where, after a will had been revoked by operation of law, the testator allowed it to be his will, without writing it anew, it was held a republication, and that the land should pass by the will as much as if it had never been revoked. (K) (6) "Wentw. Off. Ex.c. 1, p. 60, 14thed. ing a will. Constructive republication (c) Roberts on Wills, voL 2, p. 167. takes place where a testator, for some (d) See Serocold v. Hemming, 2 Cas. other purpose, makes a codicil to his will, temp. Lee, 494. in which case the effect of the codicil, if (e) See ante, 66. not neutralized by internal evidence of a (/) See ante, 68. contrary intention, is to republish the will. (g) Jackson v. Hurlock, Amb. 494; 1 Jarman Wills (3d Eng. ed.), 178; Mur- Beckford «. Parnecott, Cro. Eliz. 493 ; 1 ray v. Oliver, 6 Ired. Eq. 55 ; Love v. Saund. 277 c, d; [Havard v. Davis, 2 Johnston, 12 Ired. 355. It is unnecessary Binn. 425.] for the testator to re-sign the will ; if he (A) 1 EoIl.Abr. 617,Z.pl. 2. [Eepuhlica- aclinowledges the signature with the tion is of two kinds, express and construe- proper formalities, it is enough. Eey- tive. Express republication occurs where nolds v. Hurley, 7 Ham. 79 ; Jackson v. a testator repeats those ceremonies which Potter, 9 John. 312; Witter v. Mott, 2 are essential to constitute a valid execu- Conn. 67 ; Musser v. Curry, 3 Wash. C. tion, with the avowed design of republish- C. 481 ; Deane v. Deane, 27 Vt. 746. As CH. IV. § I.] (BEFOEE JAN. 1838.) BY PAROL. 247 * A formal republication, therefore, was never necessary in cases of wills of personal property. It would have been a parol acts strange doctrine to hold that a former republication was tkM "'"*' necessary for a will of personalty, where no publication amounting was ever necessary.' Before the statute of frauds, it was lication: holden that anything which showed an intent that a will of lands should be of a subsequent date, was a sufficient republication, (i) In Long V. Aldred, (i) Sir John Nicholl' observed, that the mere conservation of a will for many years might, under circumstances, amount to a republication. In another case in the same court, (Z) where the question was whether a widow had republished a will made before her marriage, it appeared that the testatrix, being confined to her room through illness, desired her nurse to bring her a mahogany box in which she kept her important papers, for the purpose of looking at her marriage bond ; whilst engaged in looking at the papers therein, she took out the will, and observed' to the nurse, " Nurse, this is my will ; " and upon the nurse remark- ing that it was not a will, and that it was all eaten by mice, the deceased replied "that it was eaten by cockroaches — that it was the will she should abide by — that people wished her to make another ; but that she would not, and, if she did, she should not alter it." That the deceased began to read the will aloud, but on some one coming into the room, she replaced it in the box, desiring the nurse not to mention that she had a will, and adding, " Now, nurse, if anything should happen to me, you know where it is ; " and it further appeared, that the deceased had on several occasions, since the death of her husband, declared to different persons that she had a will, naming the executor, and she intended the same to operate, and that her affairs were to be set- tled according to the directions contained in such a will. The court held, that these facts and circumstances clearly amounted to a * republication. So in Miller v. Brown, (m) which also was a question whether a widow had republished a will made during her to the formalities required, and the neces- St. 217 ; Geddes's Appeal, 9 Watts, 284.] sary proof of republication, see Jones v. (i) 1 Roll. Abr. 618, pi. 7; Barnes u. Hartley, 2 Whart. 103 ; Havard v. Davis, Crowe, 1 Ves. jun. 497 ; Cotton v. Cotton, 2 Binn. 425 ; Musser v. Curry, 3 Wash. C. cited in Alford u. Earle, 2 Vern. 209 ; C. 481 ; Reynolds v. Curry, 7 Ham. 39 ; Anon. 2 Show. 48. Witter 0. Mott, 2 Conn. 67 ; Bagwell v. (k) 3 Add. 48. Elliot, 2 Rand. 190; Jack v. Shoenberger, (I) Braham w. Burchell, 3 Add. 264. 22 Penn. St. 416 ; Gable v. Daub, 40 Penn. (m) 2 Hagg. 209. [207] [208] 248 OF THE REPUBLICATION OF WILLS. [PT. L BK. II. coverture ; the evidence established that after the death of her husband she frequently recognized the instrument as her will, and expressed her satisfaction that it was made ; and that three months before her death, and eighteen months after that of her husband, she delivered to one of the executors a tin box, which she told him contained her will (and in which it was found after her death) ; and on the same day told the father-in-law of the executor that she had that day deposited her will with him. Sir John NichoU held that this was a republication to all intents and purposes, as far as regarded the personalty. But where the testator was in search of another paper, and a person who was assisting him took up the will by mistake, where- upon the testator said, " That is my will." This was held by Lord Hardwicke C. not to amount to a republication ; and his there must lordship observed, that to make it a republication there republi- must be animus repuhlicandi in the testator, (w) And """ '•■ where there are two wills of different dates, both re- the ammus gaining uncancelled, some direct and very unequivocal very clear- act of republication is required to set up the will of the hshed, earlier date, and so revoke that of the later ; for the there are presumption of law is strongly in favor of the last dated oFdiflerent ^'^^^ uncancelled, (o) " If a man," says Wentworth, (^) dates, to "having made a former will, do make a later, which is set up the ° _ ' _ ' earlier: more than a bare revocation ; yet if afterwards, lying upon his death-bed and speechless, both these wills be delivered into his hand, and he required to deliver to one of his friends about him that will which he would have to stand, and he there- upon delivereth to the minister or other his neighbors the first- made will, retaining in his hand the later, as was done in the time of Edward the Third ; * here the former will, though made void many years before by the later, is revived, and shall stand as the party's will." Upon this passage Sir John NichoU ob- served, in Stride v. Cooper, Qq) that it was putting an extreme case, and in his mind went a great way to show that there must be some direct and unequivocal act. Again, it should seem that there is no case where a later will, mere dec- with a revocatory clause remaining uncancelled, and in ineffectual the same repository with a former will, has been set aside (n) Abney v. Miller, 2 Atk. 599. (p) Off. Ex. c. 1, p. 61, Uth ed. (o) Stride v. Cooper, 1 Phlllim. 336. (y) 1 Phillim. 336. [209] CH. IV. § I.] (BEFORE JAN. 1838.) BY PAROL. 249 on the ground of the republication of the prior will by ° . where a mere declarations, (^q^') In Daniel v. Nockolds, (r) the later will deceased, by a will made in the year 1819, attested by revocatory three witnesses, gave his brother a legacy of 1001., and Sg u'ncan- af ter bequeathing further legacies left the residue to Mary '^""^'^ ' Tomkins, and appointed Daniel and Bush his executors, without a legacy to either. In the year 1823 he made a new will, in which he devised a small freehold to Tomkins, and appointed Parkinson sole executor and residuary legatee. This will contained a clause of revocation, and was duly executed. Both Tomkins and Parkin- son died in the testator's lifetime. In 1827, the deceased on sev- eral occasions, during his last illness, conversed with different per- sons respecting his affairs, produced and read to them his will of 1819, declared that it was his last will, and what he wished to be carried into effect ; and that Daniel and Bush were his executors, and would have the management of his affairs. After his death the will of 1819 was found carefully deposited and locked up in one of the drawers in his bed-room, and that of 1823 at the bottom of the same drawer, but much soiled and crumpled amongst old and useless papers. It was held that the will of 1819 was not re- vived, and administration with the will of 1823 annexed was de- creed to the brother ; and Sir John NichoU, in giving judgment, said, " This is not like the case of a later cancelled will, because then the very act of cancellation revokes the latter, and lays a foundation * for an inference that the testator intended the former will to operate; but here is a later revocatory will entire, and in force as a revocation of the former, though the devises and be- quests may have lapsed. Can the former will be revived without an act of republication, or indeed of reexecution ; or rather, can the latter will be revoked by mere declarations ? If it were merely a will of realty, it clearly could not have been contended that there had been a republication of the former will, because the words of the sixth section of the statute of frauds are express, (s) It is clear, also, under s. 22, (i) that the latter will could not have been revoked by mere declarations unaccompanied by some writ- ing ; but here is no declaration in writing ; nothing reduced into writing during the deceased's lifetime ; nor are there any acts ; (gi) [Witter v. Mott, 2 Conn. 67 ; Battle (r) 3 Hagg. 777. V. Speight, 9 Ired. 288; 10 Ired. 459; (s) See an(c, 183. Kichardson v. Eichardson, C. W. Dud. (t) See ante, 205. Bq. 184; Dunlap v. Dunlap, 4 Desaus. 305, 321.] [210] 260 OF THE REPUBLICATION OF WILLS. [PT. I. BK. II. the circumstances of the finding are too slight — they might be merely accidental. The latter will was in an envelope ; and there is no appearance that it was rumpled. Why did not the deceased, a professional man, cancel, if he intended to revoke it, and revive the former will ? Declarations without acts are always danger- ous evidence ; they are frequently insincere — liable to be misap- prehended — not accurately recollected. The case of Miller v. Brown (m) does not apply. In that case there had been no revoca- tion ; all that was there required was to show adherence. In this case there is an express revocation, and that revocation is to be removed by parol — that is the difficulty." If a will be actually cancelled, it should seem, upon principle, that it would be considered as republished, upon satis- repubhca- . . . ^ 77. t i ii_ tion of a factory proof of recognition, ammo repuohcanm, by tne CflTlPpllpH or obiit- testator (before the statute of Victoria came into opera- eratedwiii: ^.^j^-j^ provided it Continues legible. « If one of the ex- ecutors' names be stricken out," says Wentworth, (x) " and after- wards a stet be written over his head by the testator, * or by his appointment, now he is a revived executor. So if the testator ex- press by word, in the presence of witnesses, that the party put out shall be executor. But now I mean where the executor's name is not so blotted out but that it may be read and discerned, for else the stet is upon nothing: and if the verbal reaffirmance should renew his executorship, then must the will be partly in writing, and partly nuncupative, his name not being to be found in the written will." In Slade v. Friend, («/) the wiU was found locked up in the deceased's trunk, of which she kept the key, and it did not appear that anybody had access to it but herself ; the will was fair and entire, except that lines were drawn over the testatrix's name, Elizabeth Hutton, which was held to be a cancellation ; but it being proved that she on her death-bed being asked whether she had made a disposition of her affairs, answered " Yes," and said it was in that trunk, pointing to the trunk where it was found, this declaration was held to be a revival of the will, and it was pro- nounced for both in the prerogative and the delegates. So in Brotherton v. Hellier, (a) the will was found cancelled, (m) See ante, 208. (y) Cited by Sir 6. Lee, in 2 Cas. temp. {x) Off. Ex. c. 1, p. 65, 14th ed. Lee, 84. («) 2 Cas. temp. Lee, 55. [211] CH. IV. § I.] BY CODICIL. 251 the name and seal being torn off ; it was doubtful whether it might have been cancelled by accident or by the deceased himself. But Sir G. Lee held that the declaration of the deceased, and the giving of orders by him for making a codicil, would have been sufficient to have revived the will even if it had been certain that he himself cancelled it. (iji) A codicil will amount to a republication of the will to which it refers, whether the codicil be' or be not annexed to the republica- wiU, (s^) or be or be not expressly confirmatory of it ; for codicil: every codicil is, in construction of law, part of a man's will whether it be so described in such codicil or not ; and, as such, uneed not furnishes conclusive evidence of the testator's consider- ^^ fhTTrin'* or ex- pressly confirm it: ing * his will as then existing, (a) But although the ef- fect of a codicil, as to republication, is by no means de- (zl) [See Battle v. Speight, 10 Ired. 459 ; S. C. 9 Ired. 288 ; Love v. Johnston, 12 Ired. 355 ; Jones v. Hartley, 2 "Whart. 163 ; Campbell v. Jamison, 8 Barr, 498.] (sfl) [Van Cortlandt v. Kip, 1 Hill (N. Y.), 590 ; S. C. 7 Hill, 346 ; WikofFs Ap- peal, 15 Penn. St. 281 ; Harvey u. Chou- teau, 14 Missou. 587.] (a) Acherly v. Vernon, Com. Rep. 381 ; S. C. 3 Bro. P. C. 107 ; Potter v. Potter, 1 Ves. sen. 437 ; Jackson v. Hurlock, Ambl. 487 ; S. C. cited 1 Ves. jun. 492 ; S. C. 2 Eden, 263 ; Gibson v. Lord Montford, 1 Ves. sen. 485 ; S. C. Arab. 93 ; Serocold u. Hemming, 2 Cas. temp. Lee, 490 ; Doe V. Davy, Cowp. 158; Barnes v. Crowe, 1 Ves. jun. 486 ; S. C. 4 Bro. C. C. 2 (over- ruling Attorney General u. Downing, Ambl. 573) ; Pigott v. Waller, 7 Ves. 98 ; Goodtitle v. Meredith, 2 M. & Sel. 5 ; Hulme V. Heygate, 1 Mer. 285 ; Rowley v. Eyton, 2 Mer. 128; Duffield v. Elwes, 3 B. & C. 705 ; Guest v. Willassey, 2 Bing. 429 ; 3 Bing. 614 ; In the Goods of Cros- ley, 2 Hagg. 80; 1 Saund. 278 bet seq. note to Duppa v. Mayo ; Williams v. Good- title, 20 B. & C. 895 ; Doe v. Walker, 12 M. & W. 591 ; Skinner v. Ogle, 1 Robert. 363 ; S. C. 4 Notes of Cas. 74 ; Doe o. Marchant, 6 M. & Gr. 813, 825 ; Dickin- son V. Stidolph, U C. B. N. S. 341 ; In re Earle's Trust, 4 Kay & J. 673 ; [Jones v. Shewmaker, 35 Geo. 151 ; Burton v. New- bery, L. R. 1 Ch. D. 234 ; Payne v. Payne, 18 Cal. 291 ; Murray v. Oliver, 6 Ired.Eq. 55 ; Rose v. Drayton, 4 Rich. Eq. 260 ; Stover V. Kendall, 1 Coldw. (Tenn.) 557.] So a will or codicil, containing a devise of real estates, but not duty attested, may be republished and made operative by a sub- sequent codicil having the requisite attes- tation, though the latter document be in no way annexed to the will or prior codi- cil. But it has been held that it must dis- tinctly refer to it. See Doe v. Evans, 1 C. & M. 42 ; TJtterton v. Robins, 1 Ad. & El. 423; Gordon v. Reay, 5 Sim. 274; Aaron v. Aaron, 3 De G. & Sm. 475 ; ante, 97, 98. [See the remarks of Jessel M. R. upon the above case of Gordon v. Reay, in Burton v. Newbery, L. R. 1 Ch. D. 237-241.] Though a codicil confirms a will, and for certain purposes brings down the will to the date of the codicil, it certainly does not make the will necessa- rily operate as if it had been originally made at the date of the codicil. Hopwood V. Hopwood, 7 H. L. Cas. 740, per Lord Campbell. [Nor does it republish any part of the will which is inconsistent with the codicil. Simmons v. Simmons, 26 Barb. 68.] See, as to a copy of a will in India being confirmed by a codicil made in England, In the Goods of Mercer, L. R. 2 P. & D. 91. [212] 252 OF THE KEPUBLICATION OF WILLS. [PT. I. BK. II. pendent on its being annexed to the will, yet if there are several wills of different dates, and there be a question to which of these the codicil is to be taken as a codicil, the circumstance of annexa- tion is most powerful to show that was intended as a codicil to the will to which it is annexed and to no other. (6) A codicil referring inaccurately to a will may republish it. codicil re- Thus, in the case of Jansen v. Jansen, cited by Sir John ac"u?fte"y NichoU in Rogers v. Pittis, (c) the deceased having ex- ma' re'ub- ^'^'^^^'i ^^^ wills, the One dated the twenty-first of July, "sh^'it!^" 1792, and * the other dated 18th of July, 1796, had made a codicil in 1820, referring in terms to his will, not of the twenty- first but of the first of July, 1792 ; and it was held, that as the other circumstances of the case showed that the codicil referred to the will of 1792, and not to tliat of 1796, the inaccuracy was im- material, and the will of 1792 was therefore republished. (jT) A codicil -which is expressed to take effect only in an event which republica- does not happen, republishes, it should seem, a will to contingent which it refers by date, or makes the will valid, if it tk>nai"''"d ^^^ "°* been duly executed, and it is, on that ground, en- icil: titled to probate, (e) But although the general rule as to the republishing operation (b) Rogers v. Pittis, 1 Add. 41 ; Barnes been applied In the spiritual courts to a V. Crowe, 1 Ves. jun. 490. will of personalty since the stat. 1 Vict. c. (c) 1 Add. 38. 26. In the Goods of Chapman, 1 Robert. (d) See accord. In the Goods of Hon- 1. See, also, Payne u. Trappes, 1 Robert. Won, 11 Jur. N. S. 549; In the Goods of 583; S. C. 5 Notes of Cas. 147, 478; Whatman, 33 L. J., P. M. & A. 17. See, Thompson v. Hempenstall, 1 Robert. 783, also, the case of Lord St. Helens v. Lady 793 ; S. C. 7 Notes of Cas. 141, 148 ; In Exeter, 3 Phillim. 461, in note to Fawcett the Goods of Goodenongh, 2 Sw. & Tr. V. Jones; and see, further, Thompson t. 141. When a testator refers in v, codicil Hempenstall, 1 Rob. 783. A codicil will to a.last will, and there is nothing in the refer to the last in date of several wills, if contents of the codicil to point to any par- no express date is mentioned ; if there is, ticular will, it must be construed to refer to that of the particular date expressed, to the will in legal existence as the last Crosbie w. MacDoual, 4 Ves. 615. And will, and not to a revoked will. Hale o. the courts of law have determined that Tokelove, 2 Robert. 326, by Dr. Lushing- evidence cannot be admitted to prove that ton. See, also. In the Goods of Steele, such reference was a mistake, and that the L. R. 1 P. & X). 575. [See In the Goods testator did not mean to refer to the will of Gentry, L. R. 3 P. & D. 80.] to which the codicil does expressly refer. (e) In the Goods of Da Silva, 2 Sw. & Lord Walpole v. Lord Orford, 3 Ves. Tr. 315; an*c, 190; [Harvey w. Chouteau, 402 ; S. C. by the name of Walpole v. 14 Missou. 587 ; Van Cortlandt v. Kip, I Cholmondeley, 7 T. R. 138; Crosbie v. Hill (N. Y.), 590; 7 Hill (N. Y.), 346.] MacDual, 4 Ves. 616. This decision has [213] CH. IV. § I.] BY CODICIL. 253 of a codicil is as above stated, yet in all cases of this kind, the question to be considered is, whether the particular case a codicil is or is not within the general rule ; (/) for, if it ap- repubUsh on the face of the codicil that it was not the * intention {ran^™!- of the testator to republish, the ordinary presumption tention ap- derived from the existence of the codicil will be counter- face of it. acted. (^) Secondly, it remains to consider the effect of the statute of Victoria on the mode of republication (h') or revival of 2dly. The t^ \ y effect of wills. the statute The only mode in which a will, which has been revoked, 28. can be revived, is that pointed out by the 22d section. There must be a reexecution, (^■) or a duly executed codicil. There are no other means of showing an intention to revive. Destruction of the revoking instrument is not sufficient. (/ ) (/) Sy Lord Eldon C. in Bowes i/. Bowes, 2 Bos. & Pull. 506. [A codicil which refers to a will of a particular date, and does not refer to a subsequent codicil, does not operate as a republication of that subsequent codicil. Burton v. Newbery, L. R. 1 Ch. D. 234. A testator made a will (dated before the wills act), by which he directed his residuary real estate to be sold and the proceeds to be divided (in events which happened) among twelve persons, of whom A. and B. were two. He made a first codicil (dated after the wills act), by which he directed certain real estate, acquired subsequently to the date of the will, to be sold, and the proceeds divided in the same way as the proceeds of his other real estate. This codicil was at- tested by A. and B. He then made an- other codicil, described as a codicil to his will of a certain date, but not referring to a prior codicil. It was held, that the sec- ond codicil did not operate as a republica- tion of the first codicil; that the gifts to A. and B. of two twelfth shares of the pro- ceeds of the property comprised in the first codicil failed ; and that these shares fell into the residue, and were divisible be- tween A. and B. and the other ten residu- ary legates. Burton v. Newbery, supra.] (g) Strathmore v. Bowes, 7 Term. Rep. 482 ; S. C. under the name of Bowes v. Bowes, in Dom. Proc. 2 Bos. & Pull. 500. [Haven u. Foster, 14 Pick. 541 ; York v. Waller, 12 M. & W. 591.] See, also, Lord Mansfield's judgment in Heylin v. Heylin, Cowp. 132; Parker v. Biscoe, 3 B. Moore, 24; Smith v. Dearmer, 3 Y. & Jerv. 278 ; Ashley v. Waugh, coram Lord Cottenham, cited in Doe u. Walker, 12 M. & W. 598, 601 ; Moneypenny u. Bris- tow, 2 Russ. & M. 117 ; Hughes v. Turner, 3 My. & K. 666; Doe v. Hole, 15 Q. B. 848; Hughes v. Hosking, 11 Moore P. C. 1 ; [Kendall v. Kendall, 5 Munf. 541.] (A) The real property commissioners (4th report, pp. 33, 34) intimate that since publication is no longer necessary for a will (see sect. 13 of the stat. 1 Vict. t. 26), it will be improper to continue the ex- pression " republication." But it may be observed that this expression has always been in use, as a convenient term, with re- spect to wills of personal estate, although no publication was ever necessary for their validity. And the 34th section {see post, 222) of the new act itself (as was ob- served by Sir H. Jenner Fust in Skinner V. Ogle, 4 Notes of Cas. 78) distinguishes between a republication and revival. (i) As to what amounts to a reexecu- tion, see Dunn v. Dunn, L. R. 1 P. & D. 277. {j) Major «. Williams, 3 Curt. 432; [214] 254 OF THE EEPUBLIOATION OF WILLS. [PT. I. BK. II. * But it must be observed that the 22d section, the terms of which have been stated at the beginning of this chapter, is con- fined to wills, &c. " which shall he in any manner revoked." It is obvious, however, that, inasmuch as the old doctrine of the repub- lication of wills by parol acts or declarations depends on the principle that the will so recognized becomes a new will of the date of the recognition, no such republication can take place, in respect of any will whatever, since the new statute came into operation, because no new will can be made, unless with the pre- scribed formalities. Again, it is clear that no republication can now, in any case, be effected by a codicil, unless the codicil be ex- ecuted according to the exigencies of the new statute ; because such republication depends on the codicil becoming a part of the will ; and it cannot become a part unless it be so executed. But if it be so executed, it will still amount to a republication of the will, according to the old law, as above stated, unless it appears, on the face of it, that it was not the intention of the testator to republish ; (Jc) or unless the will has been in some manner revoked, in which case the new statute further requires that the codicil should show an intention to revive the will. (V) ante, 181. The above section was much considered by Lord Penzance in the case of In the Goods of Steele, L. R. 1 P. & D. 575, where it was laid down by his lord- ship that a codicil may, by referring in adequate terms to a revoked will, revive that will if it be in existence, but the codi- cil must " show an intention to revive the same," according to the words of the sec- tion ; and in order to satisfy those words the intention must appear on the face of the codicil, either by express words refer- ring to a will as revoked, and importing an intention to revive the same, or by dispo- sition of the testator's property incon- sistent with any other intention, or by some other expression conveying to the mind of the court, with reasonable cer- tainty, the existence of the intention ; and that since the passing of the statute, a will cannot be revived by mere implica- tion. It was also laid down in the above case that references in codicils to revoked wills by their dates were insufficient to re- vive them, there being no evidence on the [216] faces of such codicils of an intention to re- vive the will so referred to. (k) Doe V. Walker, 12 M. & W. 591, post, 222 ; Skinner v. Ogle, 4 Notes of Cas. 74; S. C. 1 Robert. 363. (I) A will and codicil revoked, under the new statute, by the marriage of the testator, were held to be revived by a codi- cil made after the marriage and duly at- tested, though it did not expressly con- firm or revive any particular will, but re- ferred merely to " the last will of me," and "my said will" (it not appearing that more than one will of the testator was in existence). Neate v. Pickard, Prerog. T. T. 1843 ; 2 Notes of Cas. 406. See, also, accord. lu the Goods of Terrible, 1 Sw. & Tr. 140. Again, where one part of a will in duplicate remained undestroyed in the possession of the testator, but the other part in the possession of his solicitor had been destroyed by the testator on the exe- cution of a subsequent will, made in 1838, in terms revoking the prior will, it was held that such prior will was revived by a CH. IV. § I.] OF THE CONSEQUENCES OF REPUBLICATION. 255 * By section 34, " This act shall not extend to any will made before the first day of January, 1838." The result appears to be this : that a republication or revival by parol acts or declarations, or by an unattested codicil or other writing, according to the old law, shall be valid, if it took place before the 1st of January, 1838 ; but that, after the expiration of the year 1837, no republication shall be effectual unless by re- execution, according to the solemnities required by the statute of Victoria for an original will, or by a codicil executed in the same manner, notwithstanding the will itself may have been executed before the 1st of January, 1838. (m) SECTION II. Of the Consequences of Republication. It has long been settled law that the republication of a will is tantamount to the making of that will de novo ; (m^) it The will brings down the will to the date of the i-epublishing, and lished is a makes it speak, as it were, at that time, (m^) In short, the date of the will so republished is a new will, (n) licatbn" " codicil, made subsequently to the second such republication must be made with all will, though referring to the prior will the formalities required by law. Barker v. merely by date ; for that such reference suffi- Bell, 46 Ala. 216.] ciently showed " an intention to revive." {nfi) [Murray v. Oliver, 6 Ired. Eq. 55 ; Payne u. Trappes, 1 Robert. 583. See, Miles v. Boyden, 3 Pick. 213 ; Brownell also. Hale v. Tokelove, 2 Eobert. 318, post, v. De Wolf, 3 Mason, 486 ; Haven v. Fos- 224. But the physical annexation (by a ter, 14 Pick. 543 ; Richardson v. Richard- piece of tape, e. g.) of a duly executed cod- son, C. W. Dud. Eq. 184 ; Dunlap v. Dnn- icil of a later date to testamentary papers lap, 4 Desaus. 305 ; Luce v. Dimock, 1 duly executed but revoked, is no ground Root, 82 ; Kip u. Van Cortland, 7 Hill, for infering the "intention to revive," re- 3,i(i ; Van Kleek u. The Dutch Church, quired by the statute. And it should seem 20 Wend. 457; Snowhill u. Snowhill, 3 that such intention can only be shown by Zabr. (N. J.) 447.] the contents of the codicil itself Marsh (n) [Barker u. Bell, 46 Ala. 216; Brim- V. Marsh, 1 Sw. & Tr. 528. mer v. Sohier, 1 Cush. 118; Murray «. (m) Hobbs v. Knight, 1 Curt. 768, 774 ; Oliver, 6 Ired. Eq. 55 ; Jack v. Shoenber- De Zichy Ferraris u. Lord Hertford, 3 ger, 22 Penn. St. 416.] So far has this Curt. 468, 512. So, conversely, a, will of principle been carried, that where a tes- lands made before January 1, 1838, and tator had made his will in December, revoked, may be republished after that day 1734, before the statute of mortmain, 9 by a codicil attested by two witnesses only. Geo. 2, c. 36, and devised all the residue Andrews v. Turner, 3 Q. B. 177. of his personal estate to be laid out in (m^) [In Alabama the republication of land, and settled to certain charitable uses, a will is the making of a new will, and and had confirmed that will by a codicil [216] 256 OF THE REPUBLICATION OF WILLS. [PT. I. BK. 11. it revokes * Consequently, upon the ordinary and universal prin- will, of a ciple that, of any number of wills, the last and newest is to that of that in force, it revokes any will of a date prior to that lion: "^*" oi the republication, (o) But, there is a great distinction between wills and codicils distincti n in this respect ; for as every codicil is, in construction of tli^lmi ^*^' ^ P*""* °^ *^^ '^^^^' ^ testator by expressly referring codicils. to, and confirming the will, will not be considered as intending to set it up against a codicil or codicils, revoking it in part. And, therefore, in a case where a testator made his will, and afterwards executed several codicils thereto, containing partial alterations of, and additions to the will ; and by a further codicil, referring to the will by date, he changed one of the trustees and executors, and in all other respects expressly confirmed the will ; this confirmation of the will was held not to revive the parts of it which were altered or revoked by the former codicils ; Lord Al- vanley M. R. observing, that if a man ratifies and confirms his last will he ratifies and confirms it with every codicil that has been added to it. (j») made in July, 1739, after the statute, the codicil, by making the will a new will, was held to bring the devise within the statute ; and so much of the will as related to the residue of the testator's personal estate was, consequently, held to be void. Vide Attorney General v. Heartwell, Amb. 451 ; 1 Add. 38, note. But the contrary has been held of real estate. See Willett v. Sandford, 1 Ves. sen. 178, 186. (o) Serocold u. Hemming, 2 Cas. temp. Lee, 490; Rogers v. Pittis, 1 Add. 38; Jansen v. Jansen, lb. 39 ; Walpole v. Clr- ford, 3 Ves. 402; Walpole v. Cholmon- deley, 7 T. R. 138. [p) Crosbie v. McDoual, 4 Ves. 610 ; 1 Powell on Devises, p. 624, Jarman's edi- tion. See Grand v. Reeve, 11 Sim. 66; Bunny v. Bunny, 3 Eeav. 109 ; Cartwright u. Shepheard, 17 Beav. 301. [Where a testator copies and republishes his will, and the several codicils, and in the attestation styles them codicils, they do not thereby become parts of the will, but remain codi- cils, and constitute distinct instruments, and a bequest of the residue of the estate [217] by the will " to the legatees " will be con- fined to such legatees as are therein named, and to such legatees as are substituted by codicil for some of them ; and will not ex- tend to others to whom legacies are left by the codicils. Alsop's Appeal, 9 Penn. St. 374 ; Riley's Appeal, 9 Penn. St. 374. Nor will such republication have the effect to revive legacies which have been adeemed or satisfied. Langdon v. Astor, 16 N. N. 9 ; Paine v. Parsons, 14 Pick. 318. But a will discharging all debts is a release of a new debt incurred between the date of the will and last codicil, though there be no reference to such debts in the codicil, and no express words of republication. Coale V. Smith, 4 Penn. St. 376.] Where there are several codicils of different dates, it will always be a question to be determined from the contents of the codicils, and (at all events, in a court of probate) from all other circumstances of the case, whether the later are cumulative to, or substituted for, and revocatory of the former. Methuen V. Methuen, 1 Phillim. ,510; Greenough V. Martin, 2 Add. 239; ante, 167. See, CH. IV. § II.] OF THE CONSEQUENCES OF REPUBLICATION. 257 * In Upfill V. Marshall, (?) a will (dated February, 1837) dis- posed of real and personal estate. A codicil (dated June, 1837) partly revoked the disposition of the personalty. A memorandum (dated July, 1838) formally republished the will. And it was held that parol evidence was admissible to show quo animo the memorandum was made ; and upon that evidence, that the codicil was not revoked by the republication of the will, (r) And now, by stat. 1 Vict. c. 26, s. 22, " when any will or cod- icil, which shall be partly revoked, and afterwards wholly re- voked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown." In a case where a will and codicil, which had been revoked, under the new statute, by the testator's marriage, was revived by a codicil referring to the will, several alterations appeared on the face of the will ; and it was held by Sir H. Jenner Fust, that the codicil revived the will as it stood at the time of republication, being of opinion that it was the intention of the deceased in the alterations to revoke the altered legacies, and that therefore he could not have intended to revive that part of the will which he had revoked before, (s) Another consequence of a republished will being considered as a new will of the date of the republication is, that its RepuWica- operation is extended to subjects which have arisen be- tends the tween its date and republication, (s^) As if one give to of th*' will Sarah his wife a piece of plate, or other thing, and hath ^ ''&J'"c- no such wife at the time, but after marrieth one of that i^i^^d after its name, and then publisheth the will again ; now this shall date : be a good bequest, (f) So if one devise goods which he hath not, if he * after do purchase the same, and then say that his will before made shall stand or be his will, it shall be a good will and bequest ; for this in effect is a new making, (m) So where a man had de- also, infra, pt. I. bk. iv. ch. iii. § v. But (r) See, also, Wade v. Nazer, 1 Robert. see Thome v. Kooke, 2 Curt. 799 ; ante, 627 ; S. C. 6 Notes of Cas. 46. 167. [An omission to mention a particu- (s) Neate v. Pickard, 2 Notes of Cas. lar codicil in a clause of republication, in 406. which prior and subsequent codicils are (si) [See Haven v. Foster, 14 Pick. 541 ; specified, may be an implied revocation of Mooers v. White, 6 John. Ch. 375.] such codicil ; but this implication may be (t) 1 Wentw. OiF. Ex. c. 1, p. 62, 14th rebutted by other circumstances. WikofFs ed. Appeal, 15 Penn. St. 281.] (a) 1 Wentw. Off. Ex. c. 1, p. 62, Uth (q) 3 Curt. 636. ed. voi-i- " [218] [219] 258 OF THE REPUBLICATION OF WILLS. [PT. I. BK. II. vised a lease to his daughter, and afterwards renewed the lease, which was held to amount to a revocation by ademption of the lease originally bequeathed ; it was holden that the renewed lease passed by means of a codicil made after the renewal, which, al- though it took no notice of the lease, operated as a republication of the will, (x) And so far has the doctrine that a republication gives words, used in the original will, the same force and effect as they would have had if first written at the time of the repub- lication, (a;^) been extended, that it has been considered that a bequest may extend to any person to whom the description is ap- plicable at the period of republication, though not originally in- tended. («/) But it has been held that in the case of a married woman, whose Secus, as to will is only the exercise of a power, her republication of rhr'exer- it by a codicil made after her husband's death has not power * necessarily the effect of extending the operation of the semble: -^in gg as to make it include that which was not in- cluded in the power given to her to make the will. Thus, where a married woman, by her will dated in 1824, and made in exercise of a power, duly appointed and devised certain hereditaments therein specified, and also all other the hereditaments, if any such there were, which she had any power to appoint and devise, and afterwards, when a widow, in the year 1829, made a codicil, whereby she gave some legacies, but did not dispose of the residue of her estate, and she confirmed all wills and codicils which she had theretofore made, it was held by Sir J. Romilly, that the will, as confirmed, passed only such hereditaments as were subject to * her power, and not certain other hereditaments to which she had be- come entitled at the date of the codicil ; for that the codicil did not extend or enlarge the appointment, so as to make it a devise of that which was not contained in the power, (s) This consequence of republication was not so important with distinction respect to personalty as it was with regard to realty, wills of before the passing of the new statute of wills (1 Vict, personalty c. 26) ; because a will of personalty, if it contained pro- respect, spective words sufficiently comprehensive, would operate {x) Alford V. Earle, 2 Vern. 208 ; S. C. (xi) [Haven v. Foster, 14 Pick. 541.] cited under tlie name of Alford v. Alford, (y) Perkins v. Mickletliwaite, 1 P. 3 P. Wms. 168. See, also, Coppin v. Wms. 275. Fernyhough, 2 Bro. C. C. 291 ; Porter v. {z) Du Hourmelin v. Sheldon, 19 Beav. Smith, 16 Sim. 251. 389. [220] CH. IV. § II.] OF THE CONSEQUENCES OF REPUBLICATION. 259 on the personal estate of the testator, to which those words ap- plied, although acquired since the making of the will, without any republication of it ; (a) whereas no real estate which the tes- tator had not at the date of the will would pass by it, however express, comprehensive, and general the words, or however mani- fest the intention of the testator might be. (6) Consequently, no after purchased lands could pass, nor any lands which did not remain in the same condition from the date of the will to the death of the testator, unless there were a republication, according to the solemnities required by the statute of frauds ; for any the least alteration, or new modelling of the estate after the will, was an actual revocation, (c) But now, by stat. 1 Vict. c. 26, s. 3, the power of disposing by will executed as required by that act is extended to all i vict. such real estate as the testator may be entitled to at the "' ^' '" ' time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. It should further be observed that, by the 24th sec- '• ^' . ,, ' ■' .a W"l shall tion of the same statute, it is enacted, " that every will be con- shall be * construed, with reference to the real estate speak from and personal estate comprised in it, to speak and take of the tes- effect as if it had been executed immediately before the }^g°^' ^^^ death of the testator, unless a contrary intention shall trar.yin- ' ■' tention appear by the will." (c?) (a) [Canfield v. Bostwick, 21 Conn, if such shall clearly and manifestly appear 553; Garrett v. Garrett, 2 Strobh. Eq. by the will to have been the intention of 283; Dennis u. Dennis, 5 Rich. (S. Car.) the testator. For the construction given 468; Warner y. Swearingen, 6 Dana, 196.] to this provision, see Gushing u. Aylwin, See, as to the ademption of legacies, and 12 Met. 169; Pray v. Waterston, 12 Met. the revival of adeemed legacies by repub- 262 ; Brimmer v. Sohier, 1 Cush. 118; lication, the subsequent part of this trea- Blaney v. Blaney, 1 Cush. 107, 116 ; Win- tise, pt. III. bk. III. ch. iii. Chester v. Foster, 3 Cush. 366 ; Prescott (b) 1 Saund. 277 e, note to Duppa v. v. Prescott, 7 Met. 141, 146 ; Wait o: Mayo; [ante, 6, and note (c) and cases Belding, 24 Pick. 136. In New York, by cited ; Mooers v. White, 6 John. Ch. 375 ; 2 Eev. Sts. 57, § 5, " every will made by a Brownell v. De Wolf, 3 Mason, 486 ; testator in express terms of all his real Miles V. Boy den, 3 Pick. 216.] estate, or in any other terms, denoting his (c) 1 Saund. 278 e, note to Duppa v. intent to devise all his real property, shall Mayo ; [ante, 204, note (ci).] be construed to pass all the real estate (d) [By Genl. Sts. Mass. c. 92, § 4, which he was entitled to devise at the it is provided that real estate, acquired by time of his death." 4 Kent, 512 ; Youngs the testator after the making of his will, v. Youngs, 45 N. Y. 254. The same rule shall pass thereby, in like manner as if seems to exist in Alabama and Indiana, possessed at the time of making the will. But where the unlimited words of the [221] 260 OF THE KEPUBLIOATION OF WILLS. [PT. I. BK. H. The latter of these two enactments in effect puts the shall ap- psarbythe i j! • i wUi: case of real property on the same tooting as that on statute are not used, there must be words in the will which will enable the court to see that the testator intended that his will should operate npon real estate which he should afterwards acquire. Lynes v. Townsend,33 N. Y. 558, 569; Gray C. in Quinn t>. Hardenbrook, 54 N. Y. 85. In this last case (54 N. Y. 89), Reynolds C. referring to the difference between the English and the New York statutes on this point, said : " Although the onus of construction appears to be inverted, the principle of the two statutes is substan- tially the same." See Wetmore v. Par- ker, 52 N. Y. 450; Pond v. Bergh, 10 Paige, 149; Bowen v. Johnson, 6 Ind. Ill; Brown b. Brown, 16 Barb. 569; Youngs V. Youngs, 45 N. Y. 254. In Connecticut, it is said to be the general rule, that a will speaks from the death of the testator, and not from its date, unless its language, by u fair construction, indi- cates the contrary intention. Canfield v. Bostwick, 21 Conn. 550 ; Gold v. Judson, 21 Conn. 616; Brewster v. M'Call, 15 Conn. 274. In other states, as in Massa- chusetts, supra, the statutes declare that after acquired real estate shall pass by a devise when such appears to have been the intention of the testator; and in some states the statutes merely confer the power to dispose of such estate. As to acts and language indicating the mode of showing the intention to dispose of after acquired real estate, or the contrary, see Brim- mer V. Sohier, 1 Cush. 133 ; Wynne a. Wynne, 2 Swan (Tenn.), 407 ; Loveren v. Lamprey, 22 N. H. 444 ; Gushing v. Ayl- win, 12 Met. 174 ; Pruden v. Pruden, 14 Ohio St. 253 ; Henderson v. Byan, 27 Texas, 674; Willis v. Watson, 4 Scam. 67 ; Allen v. Harrison, 3 Call, 304 ; War- ner «. Swearingen, 6 Dana, 199 ; Mar- shall V. Potter, 10 B. Mon. 2. Upon the question whether these statutes affect wills made before their passage and taking effect after, or only those made after their pas- sage, see Parker v. Bogardus, 1 Selden, 311; Gable v. Daub, 40 Penn. St. 223; Loveren v. Lamprey, 22 N. H. 447 ; Gush- ing V. Aylwin, 12 Met. 174; Brewster v. M'Call, 15 Conn. 290; De Peyster v. Glendenning, 8 Paige, 295; Bishop v. Bishop, 4 Hill, 138 ; Pray v. Waterston, 12 Met. 262. For other cases, showing the rule as to the effect of wills upon after acquired estate, see Smith v. Edrington, 8 Cranch, 66; Carroll v. Carroll, 16 How. (U. S.) 275 ; De Peyster v. Glendenning, 8 Paige, 295; Pugh v. Bergh, 10 Paige, 140; Bishop v. Bishop, 4 Hill, 138; Whittemore v. Bean, 6 N. H. 47 ; Wake- field V. Phelps, 37 N. H. 295, 306 ; Carter V. Thomas, 4 Greenl. 341 ; Dennis v. Den- nis, 5 Rich. (S. Car.) 468; Landrum v. Hatcher, 11 Rich. (S. Car.) 154; Watson V. Child, 9 Rich. Eq. (S. Gar.) 129; Pos- ter V. Craige, 3 Ired. 536 ; Battle v. Speight, 9 Ired. 288 ; Turpin t>. Turpin, 1 Wash. 75 ; Hyer v. Shobe, 2 Munf. 200 ; Allen 17. Harrison, 3 Call, 289 ; Walton v. Walton, 7 J. J. Marsh. 58 ; Dennis ti. Warder, 3 B. Mon. 173 ; Ross v. Ross, 12 B. Mon. 437 ; Smith v. Jones, 4 Ohio, 115; Girard B.Philadelphia, 2 Wallace jr. C. C. 305; Willis v. Watson, 4 Scam. 64; McCuUoch 0. Souder, 5 Watts & S. 198 ; Legget w. Hart, 23 Missou. 127; 4 Kent, 512, and notes.] It is not at all necessary to find this "contrary intention" ex- pressed in so many words, or in some way quite free from doubt. It is enough if it be found, on the fair construction of the will, adopting those rules of construction which are usually adopted in construing wills, that the contrary intention does ap- pear. Accordingly, where in a, will of real and personal estate bearing a date, the testator gave " all the estates of which I am now seised and possessed," and used the word " now " in other parts of his will, clearly alluding to the period at which he was making his will. Lord Cottenham held that the testator had thereby indi- cated u contrary intention, so as to take the case out of the general rule that the CH. IV. § n.] OF THE CONSEQUENCES OF REPUBLICATION. 261 which personal property already stood ; for the general rule, as to wills of mere personalty, established before the wills act passed, will shall be construed to speak and to take effect from the testator's death, and that real estate acquired after the date of the will did not pass by it. In the course of the argument, his lordship said he ad'- mitted the word " now " would, under the act, he the time of the death, if there was no date to the will. Cole v. Scott, 1 Mac. & G. 518 ; 16 Sim. 259. (See the obser- vations on this case, 3 Sm. & G. 253, 254 ; 8 De G., M. & G. 437.) See, further, as to the construction of this section, Doug- las V. Douglas, Kay, 400 ; Bullock v. Ben- nett, 1 Kay & J. 315 ; 7 De G., M. & G. 283 ; Goodlad v. Burnett, 1 Kay & J. 341 ; Jepson V. Key, 2 H. & C. 873 ; [In re Gib- son, L. R. 2 Eq. 672 ; Hepburn v. Skir- ving, 4 Jur. N. S. 651 ; Lord Lilford v. Powys Keek, 30 Beav. 300 ;] Langdale u. Briggs, 3 Sm. & G. 246 ; 8 De G., M. & G. 391, 437 ; Be Otley Railway, 34 L. J. Ch. 596; S. C. 11 Jur. N. S. 818; Wagstaff V. Wagstaff, L. R. 8 Eq. Ca. 229 ; [Hutch- inson V. Barrow, 6 H. & N. 583 ; 30 L. J. Ex. 280; 1 Jarman Wills (3d Eng. ed.), 298 et seq., 311, 312 ; Goodfellow v. Good- fellow, 18 Beav. 361 ; Emuss v. Smith, 2 De G. & S. 722;] post, pt. iii. bk. iii. ch. IV. § VIII. To prevent the application of the section, an intention must be shown excluding the effect given to the will by the statute, namely, the effect of a contin- uing operation during the subsequent life of the testator. By Lord Westbury, in Thomas v. Jones, 1 De G., J. & Sm. 83. As to whether the section is to be applied to an excepting clause, see Hughes v. Jones, 1 Hemm. & M. 765, 770. [In Gold V. Judson, 21 Conn. 616, 622, 623, Ells- worth J. said : " Whenever a testator re- fers to an actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event. Such, it is clear, is the construction of the word now. Thus, to the descendants now living of a person, means those living at the date of the will, exclusive of such as came into being between that period and the death of the testator. And the same is true, where the word now is combined with a term which could not have full effect ac- cording to its technical import, unless used prospectively, as in the case of a devise to the heir male of the body of A. now living ; under which the heir apparent of A., living at the date of the will, has been held to he entitled. So in the description of the thing given, and the person or persons to whom given, it maybe such as to embrace only the specific thing or persons described ; as thus : the stock I now hold in the Hart- ford Bank, or the children of my brother already born.'' To the same effect is the language of Church C. J. in Wetmore v. Parker, 52 N. Y. 450, 463, 464, and of the judges in Quinn w. Hardenbrook, 54 N. Y. 83. See Everett v. Carr, 59 Maine, 325. Referring to the case of Cole v. Scott, supra, Mr. Jarman in his work on wills (3d Eng. ed. vol. 1, p. 312), says, "Lord Cottenham's observations, however, upon the word ' now ' in that case, have not met with unqualified approval ; and it has been repeatedly held, that unless it clearly appears on the face of the will that words importing the present time are used with the intention of limiting the operation of the will to property then in the testator's possession, they will not have that effect ; but that a devise of all messuages, lands, &c. of which the testator is seised, or a bequest of stock of which he is possessed, includes after acquired real or personal estate.'' In Castle w. Fox, L. R. 11 Eq. 553, Malins V. C. dissenting from the decision in Cole ». Scott, supra, said : " The word ' now ' does not occur here, and, therefore, it is not necessary for me to decide in opposition to that case ; but I have no hesitation in saying that if the word ' now ' had occurred here, I should have come to the same conclusion that I now do, and decided in opposition to Cole V. Scott." But in Wagstaff v. Wagstaff, L. B. 8 Eq. 229, it appeared that the tes- 262 OF THE REPUBLICATION OF WILLS. [PT. I. BK. II. was, that they speak from the day of the testator's death, and are not referable to the state of the property at the time of making the will, unless there are expressions in the will showing it was in- tended to describe property with * reference to the day of the date of the will, and not to the day of the death, (e) It has been decided that the effect of this section is not to make a will valid, which was invalid in its inception (e. g. a will of a married woman unauthorized by a power), but to give a rule for the construction of a valid testamentary instrument. (/) But the will of a married woman is not excluded by the 8th section from the operation of this section, (^g) tator made a gift of " all my ready money, bank, and other shares, freehold property, . . . and any other property that I may now possess," and it was held that per- sonal estate acquired subsequently to the date of the will passed by the bequest. Lord Komilly M. E. having noticed the language used by the testator in Cole v. Scott, said he thereby showed " that he had clearly in his mind the distinction be- tween the property he was then possessed of and that which he should afterwards acquire. There is no doubt a testator may make his will in this way." Then referring to the case before him, he says : " If the testator had said, ' I give all my real and personal estate,' there can be no doubt that after acquired property would have passed. So again, if he had said, ' I give all the real and personal estate I possess.' Does it make any difference when he pats in the word ' now ? ' The words ' I possess ' mean the same thing as ' I now possess.' In all these cases the law says that you must read the will'as if it had been written on the day of the testator's death, and you must have distinct words, as there were in Cole V. Scott, in order to show that the property acquired subsequently to the date of the will is not intended to pass." See, also. Garrison v. Garrison, 5 Dutcher, 153; Boney v. Stiltz, 5 Whart. 381, 385.] (e) Cole I). Scott, 1 Mac. & G. 529 ; post, pt. III. bk. III. ch. IT. § Tin. See Douglas V. Douglas, Eay, 400, 404, and Goodlad «. Burnett, 1 Kay & J. 341, 347, [222] 348, as to the cases where the testator be- queathed the whole of some one germs of his property, as " all debts due to me on bond," or all "my stock." The effect of the wills act on cases of this kind will be considered hereafter. , See pt. in. bk. in. ch. IT. § Tin. [See ante, 221, note (d). If the language is general, not specific, and not limited, the will speaks from the testator's death, and of course disposes of whatever property the testator had at that time, or to such persons as answer the description. So a general bequest of any particular species of personal property, as " my furniture and effects," has been held to embrace property of this description belonging to the testator at his death. A will also is held to speak from the death of the testator in reference to gifts to y classes, or fluctuating bodies of persons, as to children, descendants, or next of kin, which apply to the persons answering the description, at the death of the testator, irrespective of those to whom the descrip- tion was applicable at the date of the will, but who died in the testator's lifetime. Ellsworth J. in Gold v. Judson, 21 Conn. 616,623; Bowers w. Porter, 4 Pick. 198; Stimpson v. Batterman, 5 Cush. 153.] (/) Price V. Parker, 16 Sim. 198, 202 ; ante, 62 ; Noble v. Phelps, L. E. 2 P. & D. 276, accord. [g) Thomas v. Jones, 1 De G., J. & S. 63 ; Noble v. Phelps, L. R. 2 P. & D. 276, accord. See ante, 53. CH. IV. § II.] OF THE CONSEQUENCES OF REPUBLICATION. 263 Upon this enactment it may be further remarked, that even in the case of wills within its operation, it has not rendered wholly- inapplicable the doctrines which have just been stated with respect to the consequences of the republication of wills ; because the statute does not enact absolutely that the will shall speak as if it had been made just before the death of the testator, but only that it shall do so in respect of the property comprised in it. There- fore, with respect to the description of persons in the will, the law remains as before the passing of the act. (A) It is further enacted by the 34th section, that " every s. 34: will reexecuted, or republished, or revived by any codicil, published, shall for the purposes of this act be deemed to have been decerned to* made at the time at which the same shall be so reexe- ^a^e^^°n cuted, republished,, or revived." \^^^'. An illustration of the effect of these enactments has occurred in the case of Doe v. Walker, (i) where a will, made be- made in February, 1837, was held to be republished by J'/^ ^^^ a codicil * dated in February, 1838 (appointing an addi- {^"^^J.^PJ'.''' tional trustee, and " in all other respects ratifying and terwaids, confirming the will "), and to pass real estates, purchased lands ac- by the testator after the date of the codicil, under a be- after the quest of " all the estates of which I am seised in the ^pubiic'a-* parish of B. ; " inasmuch as the will, so republished, ^'°'^'- constituted, together with the codicil, a new will of the date of the codicil, and such new will having been so executed since the new act came into operation, must be construed, by sect. 24, to speak as if it had been executed immediately before the testator's death. (A;) Another illustration has been afforded by the cases so it will be which have arisen as to the application of the 83d sec- within the tion (by which it is enacted that a bequest from a tes- section, tator to a child, who dies in his lifetime, but leaves g°ytVa^' children living at his decease, shall not lapse) to wills child who o ' J- -^ . leaves is- made before, and republished after, the act came into sue living operation. But it will be more convenient to consider tor's death these cases hereafter, together with the general subject ^^^ °°' of lapsed legacies. (Z) (A) Bullock V. Bennett, 7 De G., M. & Kay, 404. But see, also, Cole v. Scott, G. 283. onte, 221, note (d) ; Langdale v. Briggs, (t) 12 M. & W. 591. " 3 Sm. & G. 253. (k) See accord. Douglas v. Douglas, {I) Post, pt. ni. bk. in. ch. ii. § v. [223] 264 OF THE REPUBLICATION OF WILLS. [PT. I. BK. 11. A codicil duly executed will give effect and operation to a will A codicil altered after the passing of the act, though the altera- Xrt^to* tion was not duly attested, and though the will itself ™teratfon* ^^ executed before 1838 ; (»i) or to unexecuted papers, oraddi- ^hich have been written between the periods of the tions to the . . -i i i i i will: execution of the will and codicil, although the latter does not refer to the former ; as where a testator by his will be- queathed articles of plate "specified in schedules A. and B. to he annexed to this document" [his will], and after his death two such schedules, marked A. and B., were found, which, it was sworn, were not written when the will was executed, but were in existence prior to the execution of a subsequent codicil, in which no mention was made of the schedules ; * Sir John Dodson ad- mitted the two schedules to probate, together with the wiU and codicil, (w) or may "^^^ general question whether, and in what cases, an render unexecuted will or other paper may be rendered valid as previous a testamentary disposition by a subsequent duly executed cutedwiii, codicil, has been already considered in an earlier part of this work, (o) A question of no little difficulty has lately arisen in the consistory Effect of court of London, (p) A testator having, after the new showin statute came into operation, duly executed two wholly intention inconsistent wills, destroyed the earlier one animo revo- to revive a "^ -,..,, destroyed candi, and then duly executed a codicil, showing an intention to revive it. Dr. Lushington held that this codicil necessarily revoked the later will, thought it might be inoperative to revive the earlier one by reason of its having been so destroyed. The learned judge further expressed the inclina- tion of his opinion (though it was not necessary to decide that question) that probate could not be decreed of the draft of the destroyed will ; for that it was an unexecuted paper, not specifi- (m) Per Sir H. Jenner Fust, in Skinner to this suit, as if they had been expressly ». Ogle, Prerog. E. T. 1845 ; 4 Notes of mentioned in the codicil."] Gas. 79. [And in Mooers t>. White, 6 (n) In the Goods of Hunt, 2 Robert. John Ch. 360, 375, Chancellor Kent said, 622. See, further, In the Goods of Bald- " This codidil was indorsed and written on win, 5 Notes of Gas. 293 ; [Beall v. Cun- the back of the original will, and I see no ningham, 3 B. Mon. 390.] But see also reason why the codicil, executed with all In the Goodsof Lancaster, 29 L. J. P. M. the solemnities required by the statute, &A. 155. was not a republication of the will, so as (o) Ante, bk. ii. ch. ii. § n. p. 97. to give effect to the devise to the parties (p) Hale v. Tokelove, 2 Kobert 318 [224] CH. IV. § II.] OF THE CONSEQUENCES OF REPUBLICATION. 265 cally adverted to or recognized by the codicil. But he gave no opinion on the point (which indeed does not appear to have been raised), whether, as in the case of a lost will, or a will destroyed unduly or sine animo revocandi, (^q) probate might have been granted of the will itself, as contained in the draft and the depo- sitions of the witnesses. This decision was approved and acted on by Sir C. Cresswell as establishing the principle that where a will had been destroyed by the testator, or with his approval, it cannot be revived by any intention of his manifested in a subsequent codicil, (r) * It has been already observed, that although a will made by a widow before or during coverture, will not revive by the Effect of mere circumstance of her husband's death, yet if she re- [fj^b""*" publish it, it will become valid, (s) So if, at any time widow: before the statute of Victoria came into operation, an by an in- infant having attained the age of fourteen, if male, or attaining twelve, if a female, by approval or recognition, or any "^Jo^'y^ other means, republished a will, which he or she made before ar- riving at those ages, it was thereby made effectual to all intents and purposes, (i) Likewise, although if the testator by a person make his will while non compos, and afterwards recover ofnon-sane his understanding, the will does not thereby obtain any "hJThMre- force or strength ; (m) yet if he should, after having re- covered his gained a sound state of mind, republish the will made standing. during his former insanity, it would doubtless become a valid will. (m1) (?) See post, pt. 1. bk. iv. ch. iii. (<) Swinb. pt. 11, s. 2, pi. 8; Herbert § VII. V. Torball, 1 Sid. 162. (r) Rogers v. Goodenongh, 2 Sw. & Tr. (u) Swinb. pt. 2, s. 3, pi. 2 ; Godolph. 342. The learned judge, moreover, held pt. 1, c. 8, pi. 2. that the codicil did not revoke an inter- («i) [A will executed under undue influ- mediate will, not being inconsistent there- ence may be republished and confirmed by with and not showing any intention to a codicil executed afterwards, when the tes- revoke it. See an(e, 186. tator is free from such influence. O'Neall (s) Ante,55,63. [SeeFransen's"Will,26 v. Farr, 1 Rich. (S. Car.) 80.] Penn. St. 202.] But see Du Hourmelin V. Sheldon, cited ante, 220. [225] *BOOK THE THIRD. OF THE APPOINTMENT OF EXECUTORS, AND THE ACCEPTANCE OR REFUSAL OF THE OFFICE. The word executor, taken in its largest sense, has three accep- tations : for there is, 1. Hxecutor a lege constitutus, and that was the ordinary of the diocese. 2. Executor ah Episcopo constitutus, or Executor dativus, and that is he who is called an administrator to an intestate. 3. Executor a testatore constitutus, or Executor testamentarius, and that is he who is usually meant when the term " executor " is used, (a) The proper term in the civil law, as to goods, is hceres testamen- tarius ; (J) and executor, said Lord Hardwicke, is a barbarous term unknown to that law. (e) An executor, as the term is at present accepted, may be defined to be, the person to whom the execution of a last will and testa- ment of personal estate is, by the testator's appointment, con- fided, (c?) " To appoint an executor," says Swinburne, (e) " is to place one in the stead of the testator, who may enter to the tes- tator's goods and chattels, and who hath action against the testa- tor's debtors, and who may dispose of the same goods and chattels, towards the payment of the testator's debts, and performance of his will." (el) (a) Godolph. pt. 2, c. 1, s. 1; Swinb. (ci) [A testator may appoint different pt. 6, s. 1 ; Wentw. Off. Ex. c. 1. executors in different countries in which liis (6) Godolph. pt. 2, c. 1. s. 1 ; Swinb. effects may lie, or different executors as to pt. 6, si. 1, pi. 4. different parts of his estate in the same (c) Androvin w. Poilblanc, SO Atk. 304; country. Hunter v. Bryson, 5 Gill & J. In the Goods of Oiiphant, 1 Sw. & Tr. 483 ; Despard v- Churchill, 53 N. Y. 192 ; .'525 ; post, 249. Allen J. in Hartnett v. Wandell, 60 N. Y. {d) 2 Bl. Cora. .503; Farrington v. 351 ; Hill w. Tucker, 13 How. (U. S.) 466. Knightly, 1 P. Wms. 548, 549 ; Toller, Executors may be appointed with separate 30. functions, or to succeed each other in the (e) Swinb. pt. 4, s. 2, pi. 2 event that those first named shall die, be- [226] PT. I. BK. m.] OF THE APPOINTMENT OF EXECUTORS, ETC. 267 * The bare nomination of an executor, without giving any legacy, or appointing anything to be done by him, is sufficient to make it a will, and as a will it is to be proved. (/) come incapacitated, or unwilling longer to serve, or two persons may be appointed to act for a definite period or during the minority, or during the absence from the country of one appointed executor. Hart- nett V. Wandell, 60 N. Y. 346, 351. In Hill V. Tucker, 13 How. (U. S.) 466, Mr. Jus- tice Wayne says : " The executor's interest in the testator's estate is what the testator gives him. That of an administrator is only that which the law of his appoint- ment enjoins. The testator may make the trust absolute or qualified in respect to his estate. It may be qualified as to_ the sub- ject-matter, the place where the trust shall be discharged, and the time when the ex- ecutor shall begin and continue to act as such. He may be executor for one or several purposes, — for the part of the effects in possession of the testator at the time of his death, or for such as may be in action, if it be only for a debt due. But though the executor's trust or appoint- ment may be limited, or though there are several executors in different jurisdictions, and some of them limited executors, they are, as to the creditors of the testators, executors in privity, bearing to the cred- itors the same responsibilities as if there was only one executor. The privity arises from their obligations to pay the testator's debts, wherever his effects may be, just as his obligation was to pay them. The executor's interest in the testator's estate, is derived from the will, and vests from the latter's death, whatever may be the form which the law requires to be ob- served before an executor enters upon the discharge of his functions. When within the same political jurisdiction, how- ever many executors the testator may ap- point, all of them may be sued as one ex- ecutor for the debts of the testator, and they may unite in a suit to recover debts due to their testator, or to recover prop- erty out of possession. All of them, then, having the same privity with each other, and the same relation to the testator, and the same responsibility to creditors, though they may have been qualified as executors, in different sovereignties, an action for a debt due by the testator, against any one of them in that sovereignty where he un- dertook to act as executor, places all of them in one relation concerning it, and as to the remedies for its recovery, what one may plead to bar a recovery, another may plead ; and that which will not bar a re- covery against any of them, applies to all of them. Between administrators deriv- ing their commissions to act from different political jurisdictions there is no such privity."] (/) Godolph. pt. 2, c. 5, s. 1 ; In the Goods of Lancaster, 1 Sw. &Tr. 464. See, also, O'Dwyer v. Geare, 1 Sw. & Tr. 465 ; In the Goods of Jordan, L. R. 1 P. & D. 555. See, also, ante, 204. [227] 268 WHO IS CAPABLE OF BEING AN EXECUTOR. [PT. I. BK. HI. * CHAPTER THE FIRST. "WHO IS CAPABLE OF BEING AN EXECUTOR. Gbnbeallt speaking, all persons, who are capable of making Who may wills, and some others besides, are capable of being made be an ex- ^-r-i i i- • • i i i ecutor. executors, (a) From the earliest time it has been a rule, that every person may be an executor, saving such as are ex- pressly forbidden. (5) It seems to be admitted that the king may be constituted exec- utor ; in which case he appoints such persons as he shall think proper to officiate the execution of the wiU, against whom such as have cause of action may bring their suits : also the king may appoint others to take the accounts of such executors, (c) Thus, Catherine, queen dowager of England, mother of Henry the Sixth, made her last will and testament, and thereof consti- tuted King Henry the Sixth her sole executor; whereupon the king appointed Robert Rolleston, keeper of the great wardrobe, John Merston, and Richard Alreed, esquires, to execute the said will, by the oversight of the cardinal, the duke of Gloucester, and the bishop of Lincoln, or two of them, to whom they should account. (^cT) Doubts have been entertained whether a corporation aggregate Corpora- ^^^ ^® executor, ((^1) principally because they cannot tions. prove a will, or at least cannot take the oath for the due execution of the office, (e) But there are authorities in * favor of the capability ; (/) and it is said to be now settled, that on their (a) 2 Bl. Com. 503. B. 2; Wentw. Off. Ex. c. 1, p. 39, 14th (6) Swinb. pt. 5, o. 1, pi. 1. [Seeposi, ed. The other grounds of the last author's 232, note (c), 235, note {q), 238, note (j).] doubt are stated to be : 1st, because they (c) Godolph. pt. 2, c. 1, B. 2. cannot be feoffees in trust, to others' use; (rf) 4 Inst. 335. 2d, they are a body framed for a special (rfi) [A corporation cannot be an ad- purpose, ministrator. Thompson's Estate, 33 Barb. (/) Swinb. pt. 5, s. 9 ; Godolph. pt. 2, 334; Georgetown College v. Brown, 34 c. l,s. 1 ; 1 EoU. Abr. tit. Executors, T. Md. 450.] 7, citing 12 E. 4, 9 b. (e) 1 Bl. Com. 477 ; Com. Dig. Admon. [228] [229] CH. 1.] WHO IS CAPABLE OP BEING AN EXECUTOK. 269 being so named, they may appoint persons styled syndics, to re- ceive administration with the will annexed, who are sworn like other administrators, (^) No doubt appears ever to have been entertained, but that a corporation sole may be execu- a partner- tor. (A) Where a testator in India nominated his brother, °'"P ^'™- and " Messrs. Cockerell & Co., East India agents, London," and one A. B., to be his executors, and before his death the firm of Cockerell & Co., which consisted of four members, had been dis- solved. Sir H. Jenner Fust held that the appointment was not of the firm collectively, but of the persons composing it individually, and that each of the members was entitled to be joined in the pro- bate with the other executors, (i) It seems agreed that by our law an alien, or one born out of the king's allegiance, may be an executor ; (k) though by the civil law he cannot, unless so appointed in a military testament. (Z) With respect to alien enemies, " it has long been doubted," says Lord C. B. Gilbert, in his history of the C. P., (wi) " whether an alien enemy should maintain an action as executor ; for, on the one hand, it is said, that, by the policy of the law, alien enemies shall not be admitted to actions to recover effects, which may be carried out of the kingdom to weaken ourselves and {g) 3 Bac. Abr. by Gwillim, p. 5, tit. necessarily disqualify an executor in Wis- Executors, A. 2 ; Toller, 30, 31 ; In the consin. Cutler v. Howard, 9 Wise. 309. Goods of Darke, 1 Sw. & Tr. 516. But So, there is no legal objection, in some the grant will not be made until the ap- states, to granting letters of administra- pointment of syndics is before the court, tion to one who is a resident and citizen of 1 Sw. & Tr. 516. another state. Ex parte Barker, 2 Leigh, (A) Godolph. pt. 2, c. 6; Wentw. Off. 719; Jones v. Jones, 12 Rich. (S. Car.) Ex. p. 39, 14th ed. See In the Goods of 623. In others, a non-resident cannot be Haynes, 3 Curt. 75. appointed administrator. Child y. Gratiot, (t) In the Goods of rernie, 6 Notes of 41 111. 357 ; Radford v. Radford, 5 Dana, Cas. 657. 156. Where two persons are of the same (k) Caroon's case, Cro. Car. 8 ; Go- relation to the deceased, and one resides in dolph. pt. 2, c. 6, s. 1. [The statute of New Hampshire and the other does not. New York, which provides that an execu- ordinarily, the one resident there is en- tor shall not be an alien non-resident of titled to administration as of right ; but if the state, excludes only those who are he makes a claim against the estate which both, not citizens of the United States, and is resisted by the heirs, it is properly non-residents of New York. A citizen of within the discretion of the court in New any state of the Union may take letters Hampshire to appoint the one residing out testamentary under the laws of New York, of the state. Pickering v. Pendexter, 46 although he may reside in another state. N. H. 69.] McGregor v. McGregor, 3 Abb. (N. Y.) (l) Godolph. pt. 2, c. 6, s. 2. App. Dec. 86; S. C. 1 Keyes, 133; 33 (m) P. 166; 3 Bac. Abr. 6, tit. Execu- How. Pr. 456. Non-residence does not tors, A. 4. 270 WHO IS CAPABLE OF BEING AN EXECUTOR. [PT. I. BK. HI. enrich the enemy, and therefore, public utility must be preferred to private convenience ; but, on the other hand, it is said that those effects of the testator are not forfeited to the king by way of reprisal, because they are not the alien enemy's, for he is to * recover them for others ; and if the law allows such alien ene- mies to possess the effects, as well as an alien friend, it must allow them power to recover, since in that there is no difference, and, by consequence, he must not be disabled to sue for them ; if it were otherwise it would be a prejudice to the king's subjects, who could not recover their debts from the alien executor, by his not being able to get in the assets of the testator, (w) * But now, on declaring war, the king uS'Ually, in the procla- mation of war, qualifies it, by permitting the subjects of the enemy resident here to continue, so long as they peaceably demean them- (n) It is said in Toller, pp.33, 34, that although the cases are not uniform, yet it seems clear, on the whole, that alienage, with a relation to a hostile country, ac- companied with residence abroad, or resi- dence here without the king's permission, express or implied, clearly works a dis- ability. It may, however, be remarked, without presuming to controvert this posi- tion, that the weight of authorities does not appear to be in favor of it. The ear- liest case on the subject is an anonymous one (probably it was Pascatia de Foun- tain's case, mentioned in Wentworth, p. 35, I4th ed.) decided in 31 Eliz. and reported in Cro. Eliz. 142, and Owen, 45. The ac- tion was debt hy an executor ; and the plea, that the plaintiff was an alien, born at Ghent under the allegiance of the king of Spain, the queen's enemy ; and it was held a good plea. This is certainly a di- rect authority upon the point, but it seems the only one in favor of the disability; all the succeeding decisions are uniformly in favor of the executor's capacity. Thus, in Watford v. Masham (38 Eliz.), Moore, 431, and Brocks v. Phillips (41 Eliz.), Cro. Eliz. 684 (also cited by the court as ad- judged in Caroon's case, Cro. Car. 9), the same plea, under the same circumstances, was held bad on demurrer. The next case is Richfield v. Udall (19 Car. 2), Carter, [230] [231] 48, 191, where the court agreed that an ac- tion by an alien enemy, as executor, lies ; and Bridgman C. J. said he remembered Sir Stephen Le Sure's case, 11 Jac. 1, that any alien whatsoever may be execu- tor. The last case on the subject is Villa V. Dimock (5 W. & M.), Skinner, 370, which was an action brought by an ex- ecutor for work and labor, and the plea was, that both the testator and executor were alien enemies, born at such a place, under the obedience of the French king : to this the plaintiff demurred and had judgment, on the ground that it was not shown that the testator did not die before the war; and that the plaintiff might be executol:, and the action attach in him be- fore the war, and then, being dead before he became an alien enemy, the testator might have an executor; and the action being in auter droit, it should be main- tained. The other cases cited by Sir S. Toller, it is submitted, with deference, do not apply; inasmuch as they merely de- cide the general question as to suits by alien enemies; whereas, the present in- quiry is, whether, assuming an alien enemy to be generally incapable of suing, propria jure, he may not still sue in auter droit, as executor, just as persons attainted or outlawed may. CH. I.] WHO IS CAPABLE OF BEING AN EXECUTOR. 271 selves ; and without doubt, such persons are to be deemed alien friends in effect, (o) And though an alien should come here after the war commenced, yet if he has been commorant here by the license of the king e-ver since, he may clearly maintain an ac- tion, (j?) and consequently there seems no objection to his acting as executor. An infant may be appointed executor, how young so ever he be, (g) and even a child in ventre sa mere, (r) (who is considered in law, to all intents and purposes, as actually born), (s) inasmuch that when such is so appointed, if the mother bring forth two or three children at one birth, they are all to be admitted executors, (t) But if an infant be appointed 38 Geo. 3, sole executor, by statute 38 Geo. 3, c. 87, s. 6, he is ekecutor'^ altogether disqualified from exercising his office during H^^Tl^^^ his minority, and administration, cum testamento annexe, "id = shall be granted to the guardian of such infant, or to such other person as the spiritual court shall think fit, until such infant shall have attained the age of twenty-one years, (m) This act only applies in case of an infant being sole executor ; for if there are several executors, and one of them is of full age, no administration durante minore cetate ought to be granted ; for he who is of full age may execute the will, (a;) * It has been said, that if it be a woman infant who is made executrix, and if her husband be of age and assent, it is whether if ° an infant as if she were of age, and her husband shall have exe- execuirix cution of the will : (^) and in Prince's case, (a) it was band of resolved by the justices of the common pleas, that if shaifha've^ administration be committed during the minority of the jfo^®^^''"" (o) Co. Lit. 129 b, note by Hargrave. this act the law considered him capable of (p) Wells y. Williams, 1 Ld. Eaym. 283 ; acting as executor at the age of seven- S. C. 1 Salk. 46 ; S. C. 1 Lutw. 34. teen. Godolph. pt. 2, c. 9, s. 2 ; Swinb. (?) Wcntw. Off. Ex. c. 18, p. 390, 14th pt. 5, s. 1, pi. 6; Piggot's case, 5 Co. 29 a. ed. ; Swinb. pt. 5, s. 1, pi. 6. (x) Pigot & Gascoigne's case, cited (r) Godolph. pt. 2, c. 9, s. 1. Brownl. 46 ; Poxwist v. Tremain, 1 Mod. (s) 2 Saund. 387, note to Purefoy v. 47, by Twysden J. See, further, post, Rogers; [Duncan J. in Swift v. Duffield, 5 pt. i. bk. v. ch. ni. § iii. as to infant ex- Serg. & R. 40 ; Thompson v. Garwood, 3 ecutors and administration durante minori- Whart. 304; M'Knight v. Read, 1 Whart. tate, [p. 479, and note (/).] See, also, 2 220.] Williams's Notes to Saunders, 637. («) Godolph. pt. 2, c. 9, s. 1. (y) Wentw. Off. Ex. .;. 18, p. 392 ; (m) Post, pt. I. bk. v. ch. III. § III. [p. Toller, 31. 479, and note (ei).] Before the passing of (2) 5 Co. 29 b. [232] 272 WHO IS CAPABLE OF BEING AN EXECUTOK. [PT. I. BK. III. executrix, and she take husband of full age, then the administra- tion shall cease. But this has since been doubted, (a) A married woman may be appointed an executrix, and aceord- Feme ^^S *° *^® canon law (in which there is no distinction covert: between woman married and unmarried, but the wife may sue and be sued alone), she may take upon her the pro- bate without the assent of her husband. (6) But by the law of England, husband and wife are considered but as one person, and as having one mind, which is placed in the husband, as most capable to rule and govern the affairs of the family ; and there- fore the wife can do no act which may prejudice the husband without his consent ; consequently, the wife cannot, by cept the our law, take upon her the office of executrix, without executor- « . ship with- the consent of the husband, (e) Therefore, it seems, husband's that where a wife, who is made executrix, is cited in consent. ^j^^ spiritual court to take upon her the executorship, and the husband appears and refuses his consent thereto, if after- wards they proceed to compel her, a prohibition will be * grant- ed, ((i) It appears, however, to have been the practice in the registry of the prerogative court to allow a married woman to take probate without requiring the consent of her husband. But on a late occasion, (e) Sir H. Jenner Fust said he thought it would be (a) See post, pt. i. bk. v. ch. iii. § m. mentary, or of administration, or of guar- (5) Godolph. pt. 2, u. 10, s. 3 ; Wentw. dianship, and of giving bonds therein, as if Off. Ex. 375 et seq. 14th ed. they were sole. See post, 450, and note (c) Godolph. pt. 2, c. 10, s. 2, 3 ; {¥). So in Massachusetts by St. 1874, Wentw. Off. Ex. 377, 14th ed. ; Thrustout c. 184, § 4. So under the laws of Mary- V. Coppin, 2 Black. 801 . Another reason land, a married woman may act as admin- is, that in all actions by or against the wife, istratrlx or executrix. Binnerman w. the husband, by our law, must be joined. Weaver, 8 Md. 517.J Upon this ground, where the husband was (d) 3 Bac. Abr. 9 (edition by Gwillim), abroad, and not amenable to process, Lord tit. Executors, A. ; 8 Wentw. Off. Ex. Hardwicke granted an injunction to re- 377, 14th ed. But see Mr. Eonblanque's strain an executrix from getting in the note (/i) to Treat, on Eq. bk. 1, t. 2, s. 6. assets of the testator, and appointed a re- Administration taken by the wife during ceiver for that purpose. Taylor v. Allen, coverture must be presumed to have been 2 Atk. 212. [But a married woman may, with the consent of the husband. Adair with the consent of her husband, be ap- v. Shaw, 1 Sch. & Lef. 266. pointed executrix, and take upon herself (e) In the Goods of Dye, 2 Robert. 342. and execute such trust. Stewart's Ap- In that case a testator had appointed a peal, 56 Maine, 300. See English v. Mc- married woman, to whom he bequeathed Nair,34 Ala. 40. By Laws of 1867, c. 782, certain property to her separate use, and § 2, married women in New York are ca- one A. B., executors. They took pro- pable of receiving letters, whether testa- bate ; but in consequence of the Bank of [233] CH. I.] WHO IS CAPABLE OF BEING AN EXECUTOR. 273 well to reconsider the practice, as a husband is liable for the acts of his wife. But if the wife administer, though without the husband's privity and assent, and then an action be brought against them. If she ad- they are estopped, it is said, from pleading that she was w,' houT not executrix. (/) " Yet, perhaps," adds the author of ^andw the Office of Executor, " this administration of the wife sent, against her husband's mind, will (as against him) be a is bound, void act ; else I cannot see how the opinion before cited, viz, that the wife shall not be executrix without or against her husband's mind, can be law." (g) In the great case of Pemberton v. Chapman, (K) it was held that a payment bond fide made to a married woman, ex- Payment ecutrix, by a person who knew she was married, but not ftm!mv- of * any other disability, the husband not having author- tr/x^^^^g^ ized her to receive such payment, and having subse- ''^'s- quently dissented from her taking on herself the office of debtor, executrix, and probate having been subsequently granted to a co- executor and refused to her, was held to operate to discharge the debtor as against such co-executor, (i) On the other hand, if the husband of a woman named executrix, would have his wife to take upon her the execution of the will, and to prove the same, but she will not assent band can- thereto, in this case the spiritual court will not fasten the wife to the executorship upon the wife, against her will. (/) executor-^ But if the husband, though the will be not proved, ad- ''"'P- England refusing to allow a transfer of wife though against her husband's con- stock in the absence of her husband, who sent. Gtodolph. pt. 2, c. 10, s. 4 ; Off. Ex;, was in foreign parts, the court was moved 377, 378, 14th ed. to revoke it, and to decree it to A. B. {g) Wentw. Off. Ex. 378, 14th ed. [See alone; and Sir H. Jenner Eust granted English v. McNair, 34 Ala. 40.] this motion ; but he said, if it were not for (A) 7 El. & Bl. 210 ; S. C. in Cam. the expense, he would send the executors Seacc. El., Bl. & El. 1056. to the court of chancery, where he thought (i) This question will be considered they would find redress. more fully hereafter. Post, pt. iii. bk. i. (/) Godolph. pt. 2, c. 10, s. 4 ; Wentw. ch. iv. Off. Ex. 377, 378, 14th ed. ; 3 Bac. Abr. {j) Godolph. pt. 2, c. 10, s. 1 ; Wentw. 9 (edition by Gwillim), tit. Executors, A. Off. Ex. 376, 14th ed. See Da Rosa 8 ; Note (B) by Mr. Eraser to Russel's v. Da Pinna, cited 2 Gas. temp. Lee, 390, case, 5 Co. 27 6. The same estoppel, it is and post, pt. i. bk. v. ch. ii. § ii. as to let- surmised by Godolphin and Wentworth, ters of administration to a feme covert, would occur, if once the will should be being next of kin. proved, and execution thereof given to the VOL. 1. 18 [-234] 274 WHO IS CAPABLE OF BEING AN EXECUTOR. [PT. I. BK. UI. ministers as in the wife's right, though against her consent, she how far she will thereby be so far bound and concluded, as that dur- heatoin'is- ^^S ^^^ ^^^® ^^® cannot decline or avoid the executor- ter against gjjjp . (-/(.-) j-^^; after his death she may refuse, if she has sent. never intermeddled with the administration. Ql) A dis- tinction is taken between the case of a woman made executrix during her coverture, and the case of a feme sole made executrix, who takes a husband after the testator's death, before either prov- ing, or refusing to prove the will, (Z^) for in the latter case, she, marrying before her determination, does upon the matter deliver it into her husband's hands ; (m) and if he administers, this is such an acceptance as will bind her, and she can never afterwards refuse, (n) * The general law respecting the powers, duties, and responsibil- ities of the husband and wife respectively, when the wife is ap- pointed executrix, will be found in a subsequent part of this treatise. There are few or none, who, by our law, are disabled, on ac- Persons at- count of their crimes, from being executors ; and there- outlaws, fore it has always been holden, that persons attainted or outlawed may sue as executors, because they sue in auter droit, and for the benefit of the parties deceased, (o) And it has been lately decided that a person appointed executor, and after the tes- {k) Godolph. pt. 2, c. 10, s. 1 ; Wentw. Oif. Ex. 378, 14,th ed. See, also, 1 Salk. 306, in Ld. Holt's judgment in Wankford v. Wankford ; Thrustout v. Coppin, 2 W. Bl. 802. (/) Stokes V. Porter, Dyer, 166; Go- dolph. pt. 2, c. 10, B. 1 ; Wentw. Off. Ex. 378, 14th ed. ; Beynon v. Gollins, 2 Bro C. C. 323 ; and see the note (6) by the learned reporters to Adair v. Shaw, 10 Sch. & Lef. 258, and the remarks of Lord Redesdale, on the report of Beynon v. Grol- lins, lb. 2.59. (/i) [Lindsay B.Lindsay, 1 Desans. 150.] (m) Wentw. Off. Ex. 379, 14th ed. (n) Wentw. Off. Ex. 379, 14th ed.; Godolph. pt. 2, c. 10, s. 4; Bro. Abr. tit. Exor. 147. (o) Hix & Uxor v. Harrison, 3 Bnlst. 210; Co. Lit. 128 a; Caroon's case, Cro. Car. 9 ; Killigrew v. Killigrew, 1 Vern. [235] 184; Swan & Ux. v. Porter, Hard. 60; Wentw. Off. Ex. 36, 14th ed. ; Godolph. pt. 2, c. 6, s. 1 ; Vin. Abr. tit. XJtlawry, n. a. pi. 2. So a villein was capable of being an executor. Swinb. pt. 5, s. 1, pi. 3 ; Off. Ex. 36, 14th ed. ; and the lord could not seize those goods which he had to the use of the deceased; and he might sue his lord for a debt due to the testator. Lit. B. 2, c. 11, B. 192. But it was held that an outlaw could not move to have an at- torney's bill taxed, where he (the outlaw) was administrator, with the will annexed, by which all the personal estate was be- queathed to him, subject to payment of the debts, &c. and one of the bills which he sought to tax related to business done for himself and the testatrix jointly, and the other to business done for the testa- trix alone. Re Mander, 6 Q. B. 867. See Stat. 32 & 33 Vict. c. 23. CH. I.J WHO IS CAPABLE OF BEING AN EXECUTOR. 275 tator's death convicted of felony, is not thereby disentitled to maintain a suit in a court of probate with a view of establishing the validity of the will by which he is appointed executor ; for that his office being in auter droit was not forfeited by the con- viction. ( p) By the civil and canon law indeed, not only trai- tors and felons, but heretics, apostates, usurers, famous libellers, incestuous bastards, and many others, are incapable of being exec- utors, (gi) The spiritual court cannot refuse to grant the probate of a will to a person appointed executor, on account of his poverty or insolvency, (g^) Therefore, where, to a mandamus mean or to * the judge of the prerogative court, to grant the pro- circum- bate of a will to a person named executor therein, the ^ *°°^^- ordinai'y returned that he was an absconding person, and insol- vent, and that he refused to give caution to pay legacies be- queathed to some of the testator's infant relations ; a peremptory mandamus was granted ; for the ordinary has no authority to in- terpose and demand caution of the executor when the testator him- self required none, (r) So where, after probate of the will, the executor became bank- rupt, and a suit was commenced in the ecclesiastical ... bankrupt: court to revoke the probate, and grant administration to another ; the court of queen's bench granted a prohibition, (s) The consequence of these decisions was, that the court when the of chancery was forced to assume a new jurisdiction : (t) chancery (p) Smethurst v. Tomlin, 2 Sw. & Tr. trich, 7 "Watts & S. 402; Cohen's Appeal, 143. 2 Watts, 175; Taggart's Petition, 1 Ash- (q) Swinb. pt. 5, s. 2, 3,4, 7, 9,10; mead, 321. As to the law in reference Godolph. pt. 2, p. 6. [A person found by to capacity to hold the office of executor inquisition to be an habitual drunkard is or administrator, see, further, post, 238, not thereby, in Pennsylvania, deprived of note (/), 449, and notes (6) and (e).] his power to perform the office of executor (5^) [Post, 237, note [z).] or administrator. Sill v. M'Knight, 7 (r) Rex u. Sir Richard Raines, 1 Ld. Watts & S. 244. But the orphan's court Eaym. 361; S. C. 1 Salk. 299; 3 Salk. has power to vacate the letters testamen- 162 ; 1 Stra. 672 ; Carlh. 457 ; Holt, 310; tary or of administration, where the ex- Hathornthwaite v. Russell, 2 Atk. 127 ; S. ecntor or administrator has been duly de- C. Barnard. Chanc. C. 334. See, also, 3 "clared a lunatic or an habitual drunkard. P. Wms. 336, note to Slanning v. Style Sill V. M'Knight, 7 Watts & S. 244, 245 ; (s) Hill w. Mills, 1 Show. 293 ; S. C. 1 Act of Penn. March 29, 1832 ; Purd. Dig. Salk. 36 ; S, C. Skin. 299. p. 216(ed. 1853). For other grounds of (t) By Lord Mansfield, in Rex w. Simp- vacating letters testamentary of an ex- son, 1 W. Bl. 458. ecutor in Pennsylvania, Webb v. Die- [23G] 276 WHO IS CAPABLE OF BEING AN EXEOUTOK. [PT. I. BK. III. will control and that court will now restrain an insolvent or bank- executors rupt executor, and appoint a receiver : (t^y and if it is pointment necessary to bring actions at law to recover part of the of^receiv- gffects, since that must be in the name of the executor, the court will compel him to allow his name to be used, (u) But if a person, known by the testator to be a bankrupt or in- solvent, be appointed an executor by him, such person cannot, on the ground of insolvency alone, be controlled by the appointment of a receiver, (w) It is not, however, to be * inferred from the cir- cumstance of the will having been made some time before the commission, and not altered afterwards, that the testator had a deliberate intention to intrust the management of his estate to an insolvent executor, (w) It must be observed, finally, that the court will certainly not grant a receiver upon the single ground, that the executor is in mean circumstances, (x) The general principle upon which the court will restrain ex- ecutors and administrators by the appointment of receivers will be pointed out hereafter. («/) Likewise, as an executor is considered but as a bare trustee Wyf- in equity, if he be insolvent, the court of chancery will quiring .... . . security. oblige him, as it will any other trustee, to give security before he enters upon the trust, (z) [fl-) [Elmendorf U.Lansing, 4 John. Ch. (a;) Hathornthwaite ti. Russell, 2 Atk. 562. Where an executrix, widow of the 126 ; S. C. Barnard. Chanc. Cas. 334 ; testator, married a man in necessitous Anon. 12 Ves. 4; Howard o. Papera, 1 circumstances, and incapable of properly Madd. 142. [In New York, security may managing the estate, the court appointed be required of an executor whose circum- a receiver. Stairley i;. Kabe, 1 McMulIan stances are such as not to afford adequate Ch. 22.] security for the faithful discharge of his («) Utterson v. Mair, 2 Ves. jun. 95 ; S. trust. It will not, however, be required C. 4 Bro. C. C. 269 ; Scott v. Becher, 4 merely because the executor does not own Price, 346. In like manner it will restrain property to the full value of the estate, the assignees of a bankrupt executor from Mandeville o. Mandeville, 8 Paige, 475 ; paying over the fund to him, and this Holmes v. Cock, 2 Barb. Ch. 426; Col- upon petition in the bankruptcy, from the grove v. Horton, 11 Paige, 261.] peculiar authority it has over them. lb. (y) Infra, pt. v. bk. ii. ch. ii. See, also. Ex parte Ellis, 1 Atk. 101 ; (2) Rex v. Raines, Carth. 456, adjinem, Fonbl. Eq. bk. 4, pt. 2, c. 1, ». 3. S. P. ; S. 0. Holt, 310; Duncumban v. (w) Gladdon v. Stoneman, 21st March, Stint, I Ch. Cas. 121 ; S. C. 1 Eq. Cas. • 1 808, coram Lord Eldon C. reported in a Abr. 238, pi. 21 ; Rous v. Noble, 2 Vern. note to 1 Madd. 143 ; Langley v. Hawke, 249 ; S. C. 1 Eq. Cas. Abr. 238, pi. 22 ; 5 Madd. 46 ; Staintou v. The Carron Bac. Abr. tit. Exors. A. 6. See, also. Company, 18 Beav. 146, ,161. Batten v. Earnley, 2 P. Wms. 163 ; Slan- (m>) 5 Madd. 46. ning 0. Style, 3 P. Wms. 336. [See [237] CH. I.] WHO IS CAPABLE OF BEING AN EXECUTOR. 277 A person excommunicated may be appointed executor ; " yet so long as he standeth in tte sentence of excommunication, Persons he is not to be admitted by the ordinary, nor can com- municated. mence any suit for his legacy." (a) But now, by statute 53 Geo. 3, c. 127, excommunication is not to be pronounced except in cer- tain cases ; and by section 3, in those cases, parties excommuni- cated shall incur no civil incapacity whatever. By statute 3 Jac. 1, c. 5, s. 22, a Popish recusant convicted at the time of the testator's death, is made altogether in- Eoman competent ; (J) and so, by statute 3 Car. 1, c. 2, s. 1, is Catholics. any person sending or contributing to send another abroad, to be ecucated in the Popish religion. But now by statute 31 * Geo. 3, c. 32, Roman Catholics are exempt from these disabilities, upon Cooper V. Cooper, 2 Halst. Ch. 9 ; In re Wadsworth, 2 Barb. Ch. 381. But the mere poverty of an executor, which ex- isted at the testator's death, will not au- thorize the court to require that he far- nish security, or give up the office. Pair- barn V. Fisher, 4 Jones (N. Car.) Eq. 390 ; Wilson u. Whitefield, 38 Geo. 269 ; Wilkins v. Harris, 1 Wins. (N. Car.) 41 ; Bowman v. Wootton, 8 B. Mon. 67; Shields v. Shields, 60 Barb. 56. In most the American States, executors are re- quired to gii-e bonds for the faithful per- formance of their trusts, before entering upon the duties thereof. See Genl. Sts. Mass. c. 93, § 2 ; Cowling v. Nanse- mond Justices, 6 Kand. 349 ; Webb v. Dietrich, 7 Watts & S. 401 ; Cohen's Ap- peal, 2 Watts, 175; post, 529 et seq. and notes; Bankhead u. Hubbard, / 14 Ark. 298; Holbrookw. Bentley, 32 Conn. 502. In other states, bonds are required only when it appears to be necessary for the security of the estate ; see Mandeville v. Mandeville, 8 Paige, 475 ; Wood v. Wood, 4 Paige, 299 ; Colegrove v. Horton, 11 Paige, 261 ; Holmes v. Cock, 2 Barb. 426 ; McKennan's Appeal, 27 Penn. St. 237; Powel V. Thompson, 4 Desaus. 162 ; as in New York, where the surrogate finds that the circumstances of the executor are "precarious," or that he has removed or is about to remove from the state. Red- field L. & P. of Surrogates' Courts, 145. As to the force of the word " precarious " in this connection, see Shields v. Shields, 60 Barb. 56 ; Cotterell v. Brock, 1 Bradf. Sur. 148 ; and Mandeville v. Mandeville, Wood V. Wood, and Holmes v. Cock,' supra. The " due administration of the estate" for which the executor gives secu- rity, consists in paying its obligations, and distributing the balance among the persons entitled. Cunningham v. Souza, 1 Redf. Sur. 462. If an executor gives bonds that are insufficient, the probate court will upon proper application, generally, require additional security of him. Sec Killcrease v. Killcrease, 7 How. (Miss.) 311 ; Ellis V. McBride, 27 Miss. 155. This additional security can be required only by the court originally granting adminis- tration. See Atkinson v. Christian, 3 Gj-attan, 448. The liability of the sure- ties on an executor's bond is limited to the assets which rightfully come, or by right ought to have come, to the execu- tor's hands, in the state where be was ap- pointed. Fletcher v. Weir, 7 Dana, 345 ; The Governor v, Williams, 3 Ired. (Law) 152; Normand v. Grognard, 17 N. J. Eq. 425.] (a) Swinb. pt. 5, s. 6 ; Wentw. Off. Ex. 38, 14th ed. (b) Richardson v. Seise, 12 Mod. 306 ; Hill V. Mills, Show. 293; Kide v. Ride, 6 Mod. 239. [238] 278 WHO IS CAPABLE OF BEING AN EXECUTOR. [PT. I. BK. III. subscribing the declaration and oatli of allegiance, &c. as ap- pointed by that act. (c) By statute 9 & 10 W. 3, c. 32, persons denying the Trinity, Persons or asserting that there are more Gods than one, or t1iT¥i"f- denying the Christian religion to be true, or the Holy ity, &c. Scriptures, shall be for the second offence disabled to be executors. But this statute is repealed, as far as denying the Trinity, by statute 53 Geo. 8, c. 160, s. 1. Also by the statutes prescribing the qualifications for offices (cZ) Personsnot persons not having taken the oaths, and complied with for office. the other requisities for qualifying, who shall execute their respective offices after the time limited for the performance of those acts, shall incur the same incapacity, (e) By our law, as well as by the civil law, idiots and lunatics Non com- are incapable of being executors or administrators ; for potes. these disabilities render them not only incapable of ex- ecuting the trust reposed in them, but also by their insanity and ■want of understanding they are incapable of determining whether they will take upon them the execution of the trust or not. (/) Therefore it has been agreed, that if an executor become non (c) See note to Co. Lit. 391 u. and write the English language. 2 K. S. (d) 25 Car. 2, e. 2; 1 Geo. 1, st. 2, c. 13 ; (N. Y.) 69, § 3, as amended, Laws, 1830, 13 W. 3, c. 6, is. 6. But see 9 Geo. 4, c. 230, § 17 ; Laws, 1867, c. 782, § 5 ; c. 17. Laws, 1873, c. 79. See ante, 235, note [q). (e) Toller, 33, 34; 4 Burn E. L. 123. What will justify the rejection of one as But it is usual to pass in every session an an executor or administrator, see Coope act to Idemnify those who have omitted to v. Lowerre, 1 Barb. Ch. 45 ; Shilton's Es- qualify, &c. tate, 1 Tuck. Sur. 73 ; Elmer v. Kechele, (/) Godolph. pt. 2, c. 6, ». 2; Bac. 5 N. Y. Sur. 472; McMahon u. Harrison, Abr. Exors. A. 5; 2 Robert. 133, 134; 6 N. Y. 443; 10 Barb. 659; Smith v. [Hubbard J. in Thayer w. Homer, 11 Met. Young, 5 Gill, 197 ; McGregor «. Mc- 104,110. The necessary qualifications of Gregor, 33 How. Pr. 456; S. C. 3 Abb. an executor in New York are that he App. Dec. 92 ; Perry v. De Wolf, 2 R. I. shall be of the age of twenty-one years 103. As to the significance of " improvi- and capable of making a contract; that dence " in the above statute, see McMahon he shall not be an alien non-r?sident of u. Harrison, 6 N. Y. 443 ; Coope v. Low- the state, nor one convicted of an infa- erre, 1 Barb. Ch. 45 ; Emerson v. Bowers, mous crime, nor one whom the surrogate, 14 N. Y. 449. Of " want of undefstand- on proof, shall adjudge incompetent to ing," see Shilton's Estate, 1 Tuck. Sur. execute the duties of the trust by reason 73 ; McGregor v. McGregor, 1 Keyes, 133 ; of drunkenness, dishonesty, improvidence, 33 How. Pr. 456 ; 3 Abb. App. Dec. 96. or want of understanding, and the sur- The immoral character of the executor is rogate may, in his discretion, refuse to not of itself sufficient ground for refusino- grant letters testamentary or letters of to qualify him. Berry v. Hamilton, 12 B. administration to a person unable to read Mon. 191.] CH. I.J WHO IS CAPABLE OF BEING AN EXECUTOR. 279 compos, the spiritual court may, on account of this natural disabil- ity, commit administration to another, (jg) (g) Hill V. Mills, 1 Salk. 36 ; Evans v. Tyler, 2 Robert. 128, 134 ; S. C. 7 Notes of Gas. 296. See post, pt. i. bk. v. c. iii. § VI . [In Massachusetts the probate court may remove an executor or administi-ator who becomes insane or otherwise incapa- ble of discharging the trust, or evidently unsuitable therefor. Genl. Sts. Mass. c. 101, s. 2 ; Hubbard J. in Thayer v. Homer, 11 Met. 110 ; Hussey v. CofEn, 1 Allen, 354; Winship v. Bass, 12 199; Drake v. Green, 10 Allen, 124.] 280 OF THE APPOINTMENT OF EXECUTORS. [PT. I. BK. HI. * CHAPTER THE SECOND. OP THE APPOINTMENT OP EXECUTOES. — BY WHAT "WOEDS EXEOTJTOES MAY BE APPOINTED. An executor can derive his office from a testamentary appoint- ment only, (a) His appointment may either be express or constructive ; in Executor which case he is usually called executor according to the ^olhe^'"^ iewor ; for, although no executor be expressly nominated tenor : jn ^jjg ^j^ jjy ^j^g word executor, yet, if by any word or circumlocution the testator recommend, or commit to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors. (6) As if he declare by his will that A. B. shall have his goods by words after his death to " pay his debts, and otherwise to dis- pointing at . . the office or posc at his pleasure, or to that effect, by this A. B. is executor: made executor. (c) So if the testator say, "I commit (a) [Allen J. in Hartnett v. Wandell, 60 N. Y. 350.] A will (says the author of the Office of Executor, p. 3, 14th ed.) is the only bed where an executor can be be- gotten or conceived. According to the old doctrine, an executor could not be pri- marily appointed in a codicil. See ante, 8, note (p) ; [Whetmore v. Parker, 7 Lan- sing, 121, 129.] (6) Swinb. pt. 5, s. 4, pi. 3 ; Godolph. pt. 2, c. 5, s. 2 ; Wentw. Off. Ex. 20, 14th ed. ; In the Goods of Manley,3 Sw. & Tr. 56 ; In the Goods of Fraser, L. E. 2 P. & D. 183 ; [Grant v. Spann, 34 Miss. 294 ; Nunn V. Owens, 2 Strobh. (S. Car.) 101 ; Carpenter v. Cameron, 7 "Watts, 51 ; My- ers V. Daviess, 10 B. Mon. 394 ; State v. Sogers, 1 Houst. (Del.) 569; State v. Watson, 2 Spears (S. Car.), 97 ; Carter v. [239] Carter, 10 B. Mon. 327 ; Wood v. Nelson, 9 B. Mon. 600 ; Ex parte M'Donnell, 2 Bradf. Sur. 32; Watson v. Mayrant, 1 Eich. Eq. 449 ; Allen J. in Hartnett v. Wandell, 60 N. Y. 350. The testator may by his will delegate the power of naming an executor to another ; as, where the tes- tator, by his will, appointed his wife execu- trix, and requested " that such male friend as she may desire shall be appointed with her as executor," it was held (Groverand Polger JJ. dissenting), that an appoint- ment of an executor in pursuance of this request was valid ; and that letters testa- mentary were properly issued to him as such. Hartnett v. Wandell, 60 N. Y. 346 ; State V. Rogers, 1 Houst. (Del.) 569. But see Bronson's Will, 1 Tuck. Sur. 464.] (c) lb. ; Henfrey v. Henfrey, 4 Moore . CH. II.] BY WHAT WORDS EXECUTORS MAY BE APPOINTED. 281 all my goods to the administration of A. B.," (^d) or to " the dis- position of A. B. ; " (e) in this case he is made executor. * And where certain persons were directed by the will to pay debts, funeral charges, and the expenses of proving the will, they were held to be clearly executors according to the tenor. (/). So where the testator in a codicil said, "I appoint my nephew my residuary legatee, to discharge all lawful demands against my will," the nephew was admitted executor. (^) So if the testator say, " I make A. B. lord of all my goods," (A) or "I make my wife lady of all my goods," (i) or "I leave aU my goods to A. B.," (/c) or " I leave A. B. legatary of all my goods," (Z) or " I leave the res- idue of all my goods to A. B.," (m) it will amount to the ap- pointment of such persons respectively as executors according to the tenor, (w) But it appears that the practice of the prerogative court has been to grant administration with the will annexed to the universal legatee of a testamentary paper, but not to decree probate to him as executor according to the tenor. And Sir C. Cresswell, on a late occasion, adhered to this practice, (o) Where the testator gave divers legacies, and then appointed that, his debts and legacies being paid, his wife should have the residue of his goods, so that she put in security for the performance of his will, this was held by three common law judges to make her executrix, (p) Again, where the will * said nothing of the P. C. C. 33. So where one said on his (k) Godolph. pt. 2, c. 5, ». 3 ; Swinb. deathbed to his wife that she should pay all pt. 4, c. 4, pi. 3. and take all, by this she was executrix. {1} lb. Brightman w. Keighley, Cro. Eliz. 43. (m) lb. "I devise all my personal (d) Godolph. pt. 2, t. 5, s. 3; Bro. Ex- goods to my two daughters and ray wife, ecutors, pi. 73. whom I make executrix ;" tliiswasholden (e) Pemberton v. Cony, Cro. Eliz. 164; to appoint them all three executrices. Fox- Godolph. pt. 2, c. 5, s. 3. So, if he says, with v. .Tremaine, Ventr. 102. "I will that A. B. shall dispose of my (n) [In the Goods of Adamson, L. R. goods which are in his custody," he is 3 P. & D. 253.] In Androvin v. Poilblanc, thereby made executor of those parcels or 3 Atk. 301, Lord Hardwicke said a per- goods. lb. son named " universal heir," in a will, (/) In the Goods of Fry, 1 llagg. 80 ; would have a right to go to the ecclesias- In the Goods of Montgomery, 5 Notes of tical court for the probate. But it has Cas. 92, 101. See, also, In the Goods of lately been held otherwise as to a person Almosnino, 2 Sw. & Tr. 508 ; In the named universal legatee. In the Goods of Goods of Collett, Dea. & Sw. 274. Oliphant, 1 Sw. & Tr. 525. ig) Grant v. Leslie, 3 Phillim. 116. (o) In the Goods of Oliphant, 1 Sw. & (h) Godolph. pt. 2, c. 5, s. 3 ; Swinb. Tr. 525. pt. 4, s. 4, pi. 3. (P) Wentw. Off. Ex. p. 20, 14th ed. (t) Swinb pt 4 s 4 pi. 3. But if the testator bequeath the residue of [240] [241] 282 OF THE APPOINTMENT OF EXECUTORS. [PT. I. BK. III. testator's debts, but contained only devises of real and personal legacies, to be paid within two months after his death, and con- cluded, without any bequest of the residue or express appointment of executors, in these words, "I appoint A. B., C. D., and E. F., to receive and pay the contents above mentioned;" Sir G.Lee held that the persons so named were executors according to the tenor ; for they could not receive and pay the lagacies without col- lecting in the effects ; and no one can assent to a legacy but he that has the management of the estate, because legacies cannot be paid till after the debts, and he only who has the management of the estate knows whether the assets are sufficient, (^q) But where a testator, being entitled to many shares in the Sun Fire Office, and in the mines of Scotland, and a lease for years of a coal-meter's place, gave the same, by a will containing no ap- pointment of an executor, to trustees in trust for his daughter, and after several contingencies gave the remainder thereof to his son, and if he should die in his minority without issue, gave the remainder thereof to the trustees for their own use, and gave all the residue of his estate to the said trustees, to pay one moiety to his daughter, and the other moiety to his son ; Sir G. Lee held that there were no words in this will that made the trustees ex- ecutors ; inasmuch as they had only power to pay what was vested in them as trustees to the particular persons for whose use they held it, but had not a general power to receive and pay what was due to and from the estate, which is the office of * an executor, (r) So where the whole personal estate was left to a trustee on trust for a specific purpose, and no executor was named in the will, it his goods the debts discharged, in this case, lb. 327 ; and Moss v. Bardwell, 3 Sw. & according to Swinburne, the universal Tr. 187, as to the distinction between legatary doth still remain legatary, and is the offices of trustee and executor. [See to receive his legacy at the hands of the Knight v. Loomis, SOM^ine, 204; Wheat- executor or administrator. Swinb. pt. 4, ley v. Badger, 7 Penn. St. 459; Hunter v. s. 4, pi. 7. See Friswell v. Moore, 3 Bryson, 5 Gill & J. 483. Although the Phillim. 138; Hillam v. Walker, 1 Hagg. testator does not, in his will, nominate an 71. In the Goods of Davis, 3 Curt. 748, executor in express terms, but confides the 749, and In the Goods of Toomy, 3 Sw. & execution of it to persons whom he denom- Tr. 562; for instances where a party was inated trustees, conferring on them the held not to be executor according to the rights belonging to executors, it amounts tenor. to a constructive appointment of them {g) Pickering u. Towers, 2 Gas. temp, to the office; and although called trustees Lee, 401 ; S. C. Ambl. 364. by him, they are also, according to the (r) Boddicott v. Dalzeel, 2 Gas. temp, tenor of the will, his executors. Myers v. Lee, 294. See, also, Fawkener v. Jordan, Daviess, 10 B. Mon. 394.] [242] CH. II.] BY WHAT WORDS EXECUTORS MAY BE APPOINTED. 283 was held by Sir C. Cresswell that such trustee was not entitled to probate as executor according to the tenor, (s) An executor may be appointed by necessary implication ; as where the testator says, " I will that A. B. be my ex- ' bv nGccs— ecutor, if C. D. will not ; " in this case C. D. maybe ad- saiy impii- raitted, if he please, to the executorship. («) So where the testator gave a legacy to A. B., and several legacies to other per- sons, among the rest, to his daughter-in-law, C. D. ; immediately after which legacies followed these words : " but should the within named C. D. be not living, I do constitute and appoint A. B. my whole and sole executrix of this my last will and testament, and give her the residue ; " probate was decreed to C. D., as execu- trix by implication, according to the tenor of the will, (m) Or if the testator supposing his child, his brother, or his kinsman to be dead, say in his will, " Forasmuch as my child, my brother, &c. is dead, I make A. B. my executor," in this case, if the per- son whom the testator thought dead be alive, he shall be execu- tor, (zj) So where a man made his last will, and did will thereby, that none should have any dealings with his goods until his son came to the age of eighteen years, except J. S., by *this J. S. was held to be made executor during the minority of his son. (w) (s) In the Goods of Jones, 2 Sw. & Tr. direct that the estate should go immedi- 155. Unless the court can gather from ately into the hands of legatees, or of one the words of the will that a person named or more trustees, for particular purposes, trustee therein is required to pay the debts such direction would be nugatory and of the deceased, and generally to adminis- void ; and it being a will in which no ex- ter his estate, it will not grant probate to ecutor is appointed, it would be the duty him as executor according to the tenor of the judge of probate to appoint an ad- tliereof. In the Goods of Punchard, L. R. ministrator with the will annexed, who 2 P. & D. 369 ; [Ex parte M'Donnell, 2 would have all the poweis of an executor, Bradf. Sur. 32. Where a will, in which and in whom all the personal property no executor was appointed, directed cer- would vest."] tain trustees named in it to convert the (t) Godolph.pt, 2, c. 5, s. 3 ; Swinb. pt. personal estate into money as soon as 4, s. 4, pi. 6. If the testator makes A. B. might be deemed convenient, and out of or C. D. his executors, in this case they the proceeds to pay debts and funeral ex- shall both be executors, for "or" shall be penses, and an administrator with the will construed "and." Godolph. pt. 2, c. 5, annexed was appointed, it was held that s. 3; e. 3, s. 1. the direction to the trustees was inconsist- (u) Naylor v. Stainsby, 2 Gas. temp, ent with the duty imposed by law upon Lee, 54. theadministrator, and was, therefore, inop- (y) Godolph. pt. 2, e. 5, s: 3; Swinb. erative and void. Diary v. Natick, 10 pt. 4, s. 4, pi. 6. Allen, 174. In Newcomb v. Williams, 9 (w) Brightman v. Keighley, Cro. Eliz. Met. 533, 534, Shaw C. J. said: "If a 43. However, in Godolphin, pt. 3, c. 3, s. testator were to appoint no executor, or 5, it is laid down that if the testator say [243] 284 OF THE APPOINTMENT OF EXECUTOES. [PT. I. BK. III. What words ap- point a coadjutor or over- seer: dis- tinction be tween his office and that of ex ecutor. There is a great distinction between the office of coadjutor, or overseer, and that of executor. The coadjutor, or over- seer, has no power to administer or intermeddle other- wise than to counsel, persuade, and advise ; and if that fail to remedy negligence or miscarrying in the execu- tors, he may complain to the spiritual court, and his charges in so doing ought to be allowed out of the tes- tator's estate, (x) It is therefore material to inquire what words in a will amount only to an appointment as coadjutor, or overseer. If A. be made an executor, and B. a coadjutor, without more, he is not by this made a joint executor with A. (?/) But if A. be made executor, and the testator after in his will ex- presseth that, B. shall administer also with him, and in aid of him, here B. is an executor as well as A., and may prove the will alone as executor, if A. refuse, (a) Where an infant was made *an executor, and A. and B. overseers, with this condition, that they should have the rule and disposition of his goods, and pay- ment and receipt of debts unto the full age of the infant, by this they were held to be executors in the mean time, (a) Where the testator named his wife his executrix, and A. B. to assist her, it was held that A. B. might be executor according to the tenor. (6) "If my son, A. B., many with C. D., let him not be my executor," or " one of my 'executors,'" this would not hold; be- cause an "executor may not be instituted, nor the ofBce of executor inferred, only by conjecturals." Where a testatrix executed a will containing these words : " I leave the sum of one sovereign each to the ex- ecutor and witness of my will for their trouble to see that everything is justly di- vided," but not naming any executor, and beneath the signature of the testatrix, and opposite the names of the attesting wit- nesses were the words " executors and wit- nesses," the court held that there was no appointment of executors. In the Goods of Woods, L. R. 1 P. & D. 556. {x] Wentw. Off. Ex. 2, 14th ed. Sir Thomas Ridley takes occasion to wish that overseers might be made of more use; although, he says, they be looked upon only as candle-holders ; having no power [244] to do anything but hold the candle, while the executors tell the deceased's money. Ridley, pt. 4, c. 2 ; 4 Burn E. L. 126, 8th ed. iy) Bro. Executors, pi. 73 ; Wentw. Off. Ex. 21, 14th ed.; Godolph. pt. 2, c. 2, s. 4. The words in the Year Book, 21 H. 6, 6, are, " I will that A. and B. shall be my executors, and also that I. and K. be coadjutors of the same A. and B. to dis- tribute my goods." {z) Bro. Executors, pi. 73; Wentw. Off. Ex. 21, 14th ed. Where a, testator willed that A. and B. should be his execu- tors, and that I. and K. should be the ex- ecutors of A. and B. to dispose of his goods, they are all executors. Dyer, 4 pi. 10, in marg. (a) Wentw. Off. Ex. 21, 14th ed. (6) Powell V. Stratford, cited 3 Phillim. 118. CH. II.] BY WHAT WORDS EXECUTORS MAY BE APPOINTED. 285 Although when there is an express appointment of an executor, it is less probable that there should be an indirect ap- An execu- pointment to the same office, yet there is no objection, tenor ma^' either in principle or practice, to admit an executor ^i^. ''<>: ^ . . mitted to accordmg to the tenor to probate, jointly with an ex- probate ecutor expressly nominated. Thus in Powells. Strat- with Jn ex- ford, (c) the testator's wife was expressly named as pressiy^^" executrix ; and Lord H. was to assist her, but he was not °"™"i^'«d. called executor ; the court said he might be so according to the tenor. So in a modern case (^d) the deceased left a will and four codicils ; and in the will named certain persons executors, and his nephew residuary legatee. In the last codicil, dated at a time when his nephew was on the point of attaining twenty-one years, the words were, " I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates." It was held that the nephew should be joined in the probate, (e) And in a subsequent case, where an executor was expresslj"^ nominated for general purposes, another person was held to be executor, according to the tenor, for limited purposes. (/) * Again, in a case where a person had been expressly ^ general appointed executor for a limited purpose in a will, it was ment by held that he was appointed general executor by a codicil, tion after by implication merely, without express words. (^) fimited ^''^ In another case, where a person by his will directed ''"^^ that the legatees should appoint two persons to execute Appointee his testamentary bequests, probate was granted in the prerogative court to the nominees as executors ; and on that occasion the deputy registrar informed the court that, in practice, instances had frequently occurred of granting probates to persons nominated by those authorized by the testator so to nominate. (A) (c) Prerog. 1803, 3 Phillim. 118. See, {h) In the Goods of Cringan, 1 Hagg. also, Collard o. Smith, Prerog. 1799, lb. 548. The testator in this case died in 117. Scotland; and Sir John Nicholl said he (d) Grant v. Leslie, 3 Phillim. 116. was informed that such a provision, as to (e) If a man makes J. N. his executor, the appointment of executors, is not very and devises goods to him, and to W. S. to unusual in that country. See In the devise for his soul, W. S. is executor of Goods of Ryder, 2 Sw. & Tr. 127, where these goods by these words as well as J. the person authorized to nominate had N. is. Bro. Executors, pi. 98. nominated himself, and probate was (f) Lynch v, Bellew, 3 Phillim. 424. granted to him. [Allen J. in Hartnett v. (a) In the Goods of Aird, 1 Hagg. 336. Wandell, 60 N. Y. 346, 351, 352.] [245] 286 OF THE APPOINTMENT OF EXECUTORS. [PT. I. BK. III. And it has been held that the new wills act does not preclude this practice, (i) An executor may be appointed solely, or in conjunction with S eral otliers ; but in the latter case they are all considered in executors, law in the light of an individual person. (Jc) Likewise a testator may appoint several persons as executors in several de- grees ; as where he makes his wife executrix, but if she will not or cannot be executrix, then he makes his son executor ; and if his son will not or cannot be executor, then he makes his brother, and so Substi- on. (V) In which case the wife is said to be instituted tutsd ex- ecutors. exectitor in the first degree, B. is said * to be substituted in the second degree, C. to be substituted in the third degree, and so on. (m) It must be observed, that if an instituted executor once accepts the office, and afterwards dies intestate, the substi- tutes, in what degree soever, are all excluded ; because the con- dition of law (if he will not or cannot be executor) was once accomplished by such acceptance of the instituted executor, (n) But where a testator appoints an executor, and provides that in case of his death another should be substituted ; on the death of the original executor, although he has proved the will, the execu- {i) Infra, 247, note (r). (k) Toller, 37. See post, pt. in. bk. i. ch. II. ; [Ames J. in Ames v. Armstrong, 106 Mass. 18.] (I) Swinb. pt. 4, s. 19, pi. 1 ; Godolph. pt. 2, c. 4. s. 1. So where a testator ap- pointed his son sole executor, but in the event of his going abroad, or being or re- maining abroad for upwards of two calen- dar months, then he appointed B. his ex- ecutor, and the son after the death of the testator went abroad without taking pro- bate and there remained, Sir J. P. Wilde granted probate to B., but reserved power to the son to jSrove the will. In the Goods of Lane, 33 L. J., P. M. & A. 185. (m) The substituted executor cannot propound the will, till the person first named executor has been cited to accept or refuse the office. Smith v. Crofts, 2 Cas. temp. Lee, 557. But where a testa- tri.-c appointed her nephew Charles her ex- ecutor, " but in case he shall happen at the time of my decease to be abroad, or from any other cause incapable of acting [246] as such executor, then and in such case I appoint my nephew Eardley executor, to act only during such time as the said Charles shall be resident abroad, or other- wise incapable of acting," and the nephew Charles died in lifetime of the testatrix, probate was granted by Sir John Dodson to the nephew Eardley, as executor. In the Goods of Wilmot, 2 Robert. 579; In the Goods of Langford, L. R. 1 P. & D. 458. In that case an appointment of A. as executor, and " in case of his absence on foreign duty," of B. as executrix, was held to be an appointment of B. as substi- tuted executrix in the event of A.'s ab- sence from the country when the necessity for proving the will arose. A. was in England at the time of the testator's death, but was absent on foreign service in her majesty's navy when the application for probate was made, and was likely to be absent for some years ; probate was granted toB. (n) Swinb. pt. 4, s. 19, pi. 10 ; Godolph. pt. 2, c. 4, s. 2. CH. II.] BY WHAT WORDS EXECUTORS MAY BE APPOINTED. 287 tor SO substituted may be admitted to the office, if it appear to have been the testator's intention that the substitution should take place on the death of the original executor, whether happen- ing in the testator's lifetime or afterwards, (o) * A man may by his will substitute another legatee or executor, if the first should by treason forfeit during the life of the testator ; but if he means to extend this beyond the term of his own life, it will not take effect ; for if it should, it would be a plain evasion of the statute of Hen. 8, and other acts made concerning trea- son, (jp) In a late case, (g') a testatrix appointed A. and B. executors of her last will, and "in case of the death of either of Serevai them," empowered the survivor to appoint another, "so ^fhp'ovrer that there should continue to be two executors." Upon '"si'^'ivor J^ to appoint the death of A., B. appointed C. executor to act with afreshone. him ; C. did not take probate during the lifetime of B., and it was held by Sir H. Jenner Fust, that probate might pass to C, and that he might appoint another executor to act with him. So where a testator bequeathed his estate in trust to F. and G., who were nominated executors, with directions conjointly with the testator's wife to appoint a third person as trustee and executor, it was held by Sir H. Jenner Fust that, though there was no probability of agreement between F. and G. and the testator's wife in the choice of such third person, the appointment of ex- ecutors was not thereby void, but that F. and G. were entitled to probate, with a power reserved for the third person when ap- pointed, (r) (o) In the Goods of Lighton, 1 Hagg. probate could be decreed only to a person 235 ; In the Goods of Johnson, 1 Sw. & named in a duly executed testamentary Tr. 17. So he may be admitted if the in- paper. But the court said the case was tention is that the substituted executor not like one where a testator, in his will, shall be executor, if the original executor reserves to himself a power to deal here- cannot or will not act, and the latter dies after with his will by writings not duly in the testator's lifetime. In the Goods of executed. See ante, 100. [The valid- Betts, .30 L. J., ^. M. & A. 167. See, fur- ity of an appointment of an executor, ther, as to substituted executors, In the under a delegation of power, has been af- Goods of Foster, L. R. 2 P. & D. 304. firmed by the courts in Delaware. By (p) By Lord Hardwicke, in Carte . 628. But a reappointment in a subsequent will of one of the executors named in a former will with a new co-ex- ecutor is no revocation of the appointment of executors in the first will. In the Goods of Leese, 31 L. J., P. M. & A. 169. («) In the Goods of Baylis, 2 Sw. & Tr. 613. CH. in.] APPOINTMENT OP EXECUTORS. 289 * CHAPTER THE THIRD. IN WHAT "WAYS THE APPOINTMENT OE EXECUTOB MAY BE QUALIFIED. The appointment of an executor may be either absolute or qual- ified. It may be absolute when he is constituted certainly, imme- diately, and without any restriction in regard to the testator's effects, or limitation in point of time. («) It may be qualified, by limitations as to the time or place wherein, or the subject-matter whereon, the office is to be exercised ; or the creation of the office may be conditional. It may be qualified by limitations in point of time, inasmuch as the time may be limited when the person appointed ■^_ Limita- shall begin, or when he shall cease, to be executor. Thus ''™\iii ° . . . point of if one appoint a man to be his executor at a certain time, time: as at the expiration of five years after his death, (6) or as to wiien at an uncertain time, as upon the death or marriage of tor shall his son, (e) this is a good appointment. Where the de- exfcute^his ceased appointed two executors, and, in case of the death *'*^"®' of either of them, appointed two others to be executors in their stead ; on the death of the original executor who had alone proved the will, the substituted executors were admitted to the office, (c?) So if a man appoints his son to be executor when he shall come to full age, (e) such qualified appointment is good ; and in the mean time he has no executor. Again, the testator may appoint the executor of A. to be his executor ; and * then if he die before A. he has no executor till A. die. (/) So a man may make A. and B. his executors, and appoint that A. shall not intermeddle during (a) Toller, 36. proved. See, also, accord. In the Goods (J) Swinb. pt. 4, s. 17, pi. 1 ; Wentw. of Johnson, 1 Sw. & Tr. 17. Off. Ex. 22, 14th ed. (e) Wentw. Off. Ex. 22, 23, 14th ed. (c) Swinb. pt. 4, s. 17, pi. 4. (/) Wentw. Off. Ex. 22, 23, 14th ed. ; (d) In the Goods of Lighton, 1 Hagg. Godolph. pt. 2, o. 2, s. 4 ; Graysbrook v. 235. A proxy of consent was exhibited Fox, Plowd. 281. from the original executor who had not YOL.T. 19 [249] [250] 290 APPOINTMENT OF KXECUTORS. [PT. I. BK. 111. the life of B., and by this they shall be executors successively, and as to when not jointly. (^) Likewise the testator may appoint a cease : person to be his executor for a particular period of time only, as during five years next after his decease, (K) or during the minority of his son, or the widowhood of his wife, (i) or until the death or marriage of his son. (k) In a case (Z) where a widow was appointed executrix and residuary legatee for life, with re- mainder, as to the residue, to the nieces of the testator, and by a codicil it was provided, that in case she thought proper to marry again she and the nieces should agree on proper persons to be trustees,' to whom she was directed to assign all the real and per- sonal estate, in trust for the uses of the will, but so as not to be liable to the debts, or subject to the power, of her second hus- band, it was held that her executorship expired on her second marriage, in these In these cases, if the testator does not appoint a per- cases an •■>■>■•■, r y adminis- son to act before the period limited for the commence- bTap^idnt- ment of the office on the one hand, or after the period be an ex-'^ limited for its expiration on the other, the court of pro- *ft''°th"' ^^*® '^^1 commit * administration to another person, executor- until there be an executor, or after the executorship is ^''^P" J J / \ ended. ended, (ni) In like manner, the appointment may be limited in point of 2. Limita- place ; as thus, the testator may make A. his executor pXVof foJ^ Jiis goods in Cornwall, B. for those in Devon, and C. place. -fQj, those in Somerset ; (n) or he may make difilerent (g) Wentw. Off. Ex. 31, Uthed.jBro. opinion similar to that of Shelley J. Executors, 155. But where two were above. made executors with a proviso or clause, (A) Swinb. pt. 4, s. 17, pi. 1. that one of them should not administer (i) Wentw. Off. Ex. 29, 14th ed. ; Go- the goods, this was held void for repug- dolph. pt. 2, c. 2, s. 3 ; Carte v. Carte, 3 nancy by Brudenel and Englefield JJ. ; Atk. 180; Pemberton <-■. Cony, Cro. Eliz. but Eitzherbert J. was of mind that it 164. was not void, nor utterly repugnant, for (k) Swinb. pt. 4, s. 17, pi. 4. the other might join in suits, though not (I) Bond v. Eaikney, 2 Cas. t. Lee, 371. administer; and Shelley J. was of a third (m) Swinb. pt. 4, s. 17, pi. 2; Plowd. opinion, different from all the rest, viz, 279,281. This will be an administration that there was a repugnancy, but the last cum testamento annexo, and the person en- clause should control the premises, and so titled to it will be discovered by referring this one only should be executor. Anon, to the rules respecting that species of ad- Dyer, 3 b; Wentw. Off Ex. ubi supra, ministration. See post, pt. I. bk.v.ch. iii. See, also, Bro. Executors, 9, citing 3 § i. Hen. 6, 6, 7, where Martin J. gives an (n) Swinb. pt. 4, s. 18, pi. 1 ; Godolph. [251] CH. ni.] IN WHAT WAYS IT MAY BE QUALIFIED. 291 executors for his goods in difEerent dioceses, or"! different prov- inces ; (o) or, which seems more rational and expedient, he may so divide the duty when his property is in various coun- tries, (jj) Again, the power of an executor may be limited as to the sub- ject-matter upon which it is to be exercised. Thus, the 3. Limita- testator may make A. his executor for his plate and the"^sub-'° household stuff, B. for his sheep and cattle, C. for his iect-matter. leases and estates by extent, and D. for his debts due to him. (^q) So a * person may be made executor for one particular thing only, as touching such a statute or bond, and no more, (r) And the same will may contain the appointment of one executor for gen- eral, and another for limited purposes, (s) But although a testa- tor may thus appoint separate executors of distinct parts of his property, and may divide their authority, yet quoad creditors they are all executors, and as one executor, and may be sued as one executor, (i) pt. 2, c. 2, s. 3 ; Wentw. Off. Ex. 29, 14th ed. ; Bro. Executors, 2, 155 ; Anou. 2 Sid. l\4, per tot cur.; Spratt u. Harris, 4 Hagg. 408, 409. (o) Swinb. pt. 4, s. 18, pi. 4. ip] Toller, 36; 4 Hagg. 408, 489. Where a testator appointed a man who was resident in Portugal, to be his execu- tor " in Portugal," it was held that the words " in Portugal " were equivalent to "for Portugal," and that such executor was not entitled to probate in this coun- try. Velho V. Leite, 3 Sw. & Tr. 456. See, also. In the Goods of Pulman, 3 Sw. & Tr. 269. Again, where W. made a will in England in 1861, and appointed B. and C. executors thereof, and in May, 1863, being in India, he made a codicil, and on the 9th of June executed a paper, whereby he appointed E. and P. " my ex- ecutors in this country ; " the court held that the context of the paper, giving the testator's reasons for the appointment of E. and F., showed that he did not mean them to have any power over his property in England, and granted probate to B. and C. without reserving power to E. and F. In the Goods of Wallich, 3 Sw. & Tr. 423. If power had been reserved of mak- ing a similar grant to them, this, it should seem, would not affect the validity of the probate. 3 Sw. & Tr. 269. (?) Dyer, 4 a; Wentw. Off. Ex. 29, 14th ed. ; Godolph. pt. 2, c. 3, pi. 2, 3 ; Bro. Executors, 155 ; Austre v. Audley, 1 Roll. Abr. 914, S. pi. 4. See, however, the judgment of Lord Hardwicke in Owen V, Owen, 1 Atk. 495 ; contra, post, pt. iii. bk. I. ch. II. (r) Wentw. Off. Ex. 29, 14th ed. ; Da- vies V. Queen's Proctor, 2 Robert. 413. But when the testator said, ' I make my wife my full and whole executrix of all my cattle, corn, and movable goods," and said nothing of what should be done with the residue of his estate, as leases and debts, Jones and Croke JJ. held that she was sole and absolute executrix for the whole estate, as well leases and debts as other things ; but Berkeley J. thought that she was a special execu- trix for the things named, and not a gen- eral executrix. Rose v. Bartlett, Cro. Car. 293. (s) Lynch u. Bellew, 3 Phillim. 424. [See Hunter v. Bryson, 5 Gill & J. 483.] («) Rose V. Bartlett, Cro. Car. 293. [252] 292 APPOINTMENT OF EXECUTORS. [PT. I. BK. III. Lastly, the appointment may be conditional ; and the condition 4 The ap- ^^7 ^® either precedent or subsequent, (m) Thus it pointment may be, that he give security to pay the legacies, and condi- in general to perform the will, before he acts as execu- ■ tor. (a;) In Alice Frances' case, (j/') the testator willed that if his wife suffered J. S. to enjoy Blackacre for three yeai's, then she should be his executor ; but if she disturbed J. S., then he made his son executor. It was held in C. B. by all the * jus- tices (the Lord Anderson at first dissentiente) that she was execu- trix presently ; for this should not be construed a condition prece- dent, but as a condition to abridge her power to be executrix, if she perform it not. In a case where an executor was appointed, provided he proved the will within three calendar months next after the death of the deceased, it was held, that in computing the time, the day of the death was to be excluded, (z) But if he fails to prove the will within three months, his appointment is void (at all events if there be substituted executors), though the failure were through the inadvertence of his solicitor, and though he has acted in the execution of the trusts of the wiU. (a) It is not thought expedient to go farther into the law of con- ditional appointments of executors, which the reader will find fully discussed in Swinburne (V) and Godolphin. (e) The parts of the subject which seem necessary to be introduced into this treatise will be found subsequently, when conditional legacies are con- sidered. (cT) (u) Wentw. Off. Ex. 23, 14th ed. ; him one of my executors," it was held that Godolph. pt. 2, c. 2, s. 1. Should the ex- C. could not administer, or be executor, ecutorship be determined by a breach of before he paid the debts. Stapleton v. the condition, yet all acts done by the ex- Truelock, 3 Leon. 2, pi. 6. ecutor in pursuance of his office, before (y) Dyer, 4, pi. 8, in margin ; Wentw. such condition broken, are good. Go- Oflf. Ex. 28, 14th ed. ; S. C. semftfe, by the dolph. pt. 2, i;. 2, o. 1. See /)os<, pt. 1. bk. name of Jennings v. Gower, Cro. Eliz. VI. ch. III. 219 ; S. 0. 1 Leon. 229. (x) Godolph. pt. 2, c. 2, s. 1 ; Wentw. («) In the Goods of Wilmot, 1 Curt. 1. Off. Ex. 28, 14th ed. Where A. made B. (a) In the Goods of Day, 7 Notes of and C. executors, and added, " I will that Gas. 553. See, also. In the Goods of C. shall pay my other executor all such Lane, 33 L. J., P. M. & A. 185 ; ante, debts as he owes me, before he meddle 245, note (I). with anything of this my will, or take any (6) Pt. 4, s. 5-16. advantage of this my will for the discharge (c) Pt. 1, u. 13, 14 ; pt. 2, c. 2. of the same debts, for that I have made (d) Post, pt. iii. bk. iii. ch. ii. § vi. [253] CH. IV.J TEANSMISSIBILITY OF THE OFFICE OF EXECUTOR. 293 * CHAPTER THE FOURTH. IN WHAT CASES THE APPOINTED EXECUTOR MAX TRANSMIT HIS APPOINTMENT. Although the executor cannot assign the executorship, (a) yet the interest vested in him by the will of the deceased may, generally speaking, be continued and kept alive by the will of the executor ; so that if there be a sole executor of A., the i. Where executor of such executor is, to all intents and purposes, sofe execu- ■ the executor and representative of the first testator. (6) gxecutor But if the first executor dies intestate, then his admin- represents ' _ _ the first istrator is not such a representative, but an administrator testator: de bonis non of the original testator must be appointed by the court of probate ; (c) for the power of an executor is founded (a) Bedell v. Constable, Vaugh. 182. [As to assigning the right to administer, see 417, note (o).] (6) Com. Dig. tit. Administration, G., tit. Administration, B. 6 ; Touchst. 464 ; Wankford w. Wankford, 1 Salk. 308 ; stat. 25 Edw. 3, St. 5, c. 5 ; Wentw. OiT. Ex- ecutor, 461, 14th ed. ; Bro. Administrator, pi. 7 ; 2 Bl. Com. 506 ; [Carroll v. Con- net, 2 J. J. Marsh. 195 ; Navigation Com- pany 1^. Green, 3 Dev. (N. Car.) Law, 434; post, 959; O'DriseoU v. Fishburne, 1 Nott & McC. 77. An action for a leg- acy under the will of the first testator cannot, in Pennsylvania, be maintained against the executor of an executor. Gil- liland v. Bredin, 63 Penn. St. 393.] The rule is the same, though the original pro- bate was a limited one. In the Goods of Beer, 2 Robert. 349. [An executor of an executor may prove the will, and accept the office of executor of his testator, and renounce the executorship of the will of the first testator. Worth v. M'Arden, 1 Dev. & Bat. (N. Car.) Eq. 199.] See;50s«, pt. III. bk. I. eh. HI. as to whether a power given to an executor is transmissi- ble to his executor. \Post, 959. It is pro- vided by statute in Pennsylvania that the executor of a deceased executor shall in no case be deemed executor of the first testa- tor. Act of 15th March, 1832, Purd. Dig. (ed. 1847), 1002; (ed. 1853), p. 189. So it is provided by statute in Massachusetts that the executor of an executor shall not, as such, administer the estate of the first testator. Genl. Sts. c. 93, § 9. See Waters v. Stickney, 12 Allen, 9, per Gray J. ; Earwell v. Jacobs, 4 Mass. 634. In Maine, the duties and liabilities of an ex- ecutor at his decease devolve upon the administrator with the will annexed of the estate of his testator, and not upon the executor of the executor. Prescott ». Morse, 64 Maine, 422 ; S. C. 62 Maine, 447. As to Maryland, see Scott v. Pox, 14 Md. 388.] (c) Bro. Abr. Administrator, pi. 7 ; Com. [254] 294 TEANSMISSIBILITY OF THE OFFICE OF EXECUTOR. [PT. I. BK. III. upon the special confidence and actual appointment of the de- ceased ; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence ; and so long as the chain of representation is unbroken by any intestacy, the ultimate executor is the representative of every preceding testator, but his But the administrator of the executor * is merely the trator"does officer of the court of probate, and has no privity or rela- °"'= tion to the original testator, being only commissioned to administer the effects of the intestate executor, and not of the original testator. (cZ) If the first executor should die, without having proved the will, (e) the executorship is not transmissible to his executor, but is wholly determined, and an administrator cum testamento annexo must be appointed. (/) A married woman, being executrix, may continue the chain of representation, by making her own exec- utor. (5-) In Barr v. Carter, (Ji) Elizabeth Chapman, a married woman, made a will, merely executing a power given her by the marriage settlement, but she also went on to the execu- tor of the executor does not represent the first testator, unless the first execu- tor proves the will. Transmis- sion of ex- ecutorship by a feme Dig. Administrator, B. 6. ; 2 Bl. Com. 506. Thus, it was held that the adminis- tratrix of an executrix could not sue for the double value of lands held over, after notice to quit under a demise from the tes- tator, contrary to stat. 4 Geo. 2, c. 28, without taking out administration de bonis non, even though the tenant had at- torned to her. Tingrey v. Brown, 1 Bos. & Pall. 310. (d) 2 Bl. Com. 506. However, the ad- ministrator durante minore cetate of the ex- ecutor of an executor is the representative of the first testator ; for such an admin- Etrator is loco executoris. Anon. I Freem. 287 ; contra, Limmer v. Every, Cro. Eliz. 211, as cited by C. B. Gilbert, in Bac. Abr. Executors, B. 8. But see Mr. Smirke's note, in his valuable edition of Freeman. [When the administrator of an executor takes out, jointly with another, letters of administration de bonis non, on the estate of the testator, he does not exclusively represent both estates; and, consequently, there can be no transfer, by operation of law, of the property in his hands, as admin- istrator, to him as administrator de bonis non. Thomas u.Wood, 1 Md. Ch. Dec. 296.] {e) But if administration cum testamento annexo has been granted under his letter of attorney for his use or benefit to an- other, it js the same thing as if he had proved the will himself. In the Goods of Bayard, 1 Eobert. 769 ; S. C. 7 Notes of Cas. 117. (/) Isted V. Stanley, Dyer, 372 a ; Hayron v. Wolfe, Cro. Jac. 614; S. C. Palm. 156; Hutton, 30; Wentw. Off. Ex. 81, 14th ed.; Day v. Chatfield, 1 Vem. 200 ; Wankford v. Wankford, 1 Salk. 308 ; S. C. 1 Freem. 520 ; Anon. 3 Salk. 21 ; [In re Drayton, 4 McCord, 46.] Hence it follows, that if the person appointed ex- ecutor dies before the testator, here must be administration cum testamento annexo. See Brown v. Poyns, Sty. 147 ; PuUen v. Ser- geant, 2 Chan. Rep. 300. (g) Birkett v. Vandercom, 3 Hagg. 750 ; ante, S3, 54. {h) 2 Cox, 429. [255] CH. IV.] TEANSMISSIBILITY OF THE OFFICE OF EXECUTOR. 295 appoint Elizabeth Carter sole executrix of that her will. <'™«''? ^^- 6cutrix> She died in the lifetime of her husband ; and the eccle- siastical court granted probate of this will in the general form. The testatrix was herself the executrix of a former husband, Thomas Hawley ; and it was held that the general probate of her will transmitted the representation to Elizabeth Carter, so as to make her the personal representative of the first testator Thomas Hawley. (i) * If there are several executors appointed, and one of them dies, leaving one or more of his co-executors living, no if there are SSVGrftl GX- interest in the executorship is transmissible to his own ecu tors, no executor, but the whole representation survives, and will transmis- be transmitted ultimately to the executor of the surviv- cept'J^he ing executor, unless he dies intestate. Thus, if A. makes executor o ' of the sur- B. and C. executors, then B. makes J. S. executor, and vivor. dies, and afterwards C. dies intestate, the executor of B. shall not be executor of A., because the executorship wholly and solely vested in C. by the survivorship ; and so administration de bonis non shall be committed. (/ ) The law was formerly the same where there were several ex- ecutors, and one alone proved the will, and the rest renounced before the ordinary ; there, upon the death of him who proved, no interest was transmitted to his executor, if any of those who refused were surviving. (^) But the law is altered in this respect by the court of probate act, 1857, s. 79. (Z) (i) But a limited probate will not con- the Goods of Smith, 3 Curt. 31. [See tinue the chain of representation. In the Crafton v. Beal, 1 Geo. 322.] Goods of Bayne, 1 Sw. & Tr. 132. (k) Arnold v. Blencowe, 1 Cox, 426. (j) Wentw. Off. Ex. 215, 14th ed.; In {I) Seepost, 286. [256] 296 OF AN EXECUTOR DE SON TORT. [PT. I. BK. III. * CHAPTER THE FIFTH. OF AN EXECXTTOR DB SON TORT. Having thus considered the appointment of executors by legal means, it remains to treat of a class who are in some sort regarded as executors, but who assume the office by their own intrusion and interference. If one, who is neither executor nor administrator, intermeddles with the goods of the deceased, or does any other act characteris- tic of the office of executor, he thereby makes himself what is called in the law an executor of his own wrong, or more usually, an executor de son tort, (a) (a) [Crankleton v. Wilson, 1 Browne, 361 ; Bacon v. Parker, 12 Conn. 213 ; Bennett u. Ives, 30 Conn. 329 ; Wilson v. Hudson, 4 Barring. 168 ; Wiley v. Truett, 12 Geo. 588; Barron u. Barney, 38 Geo. 264 ; White v. Mann, 26 Maine, 361 ; Apple ton C. J. in Lee v. Chase, 58 Maine, 432, 435 ; Emery v. Berry, 28 N. H. 473 ; Brown v. Dufbin, 5 J. J. Marsh. 170; Gentry v. Jones, 6 J. J. Marsh. 148 ; Howell V. Smith, 2 McCord (S. Car.), 516 ; Givens I). Higgins, 4 McCord, 286; Hub- ble ■;. Fogartie, 3 Rich. (S. Car.) 413; Johnson v. Duncan, 3 Litt. (Ky.) 163 ; Bailey v. Miller, 5 Ired. 444 ; M'Morine t'. Storey, 4 Dev. & Bat. 189; Sturdivant V. Davis, 9 Ired. 365 ; Wilson v. Davis, 37 Ind. 141 ; Wilbourn v. Wilbourn, 48 Miss. 38 ; Rayner v. Koehler, L. R. 14 Eq. 262. The ofSce of executor de son tort is not recognized by the probate laws of Texas. Ansley v. Baker, 14 Texas, 607. The law of New York does not recognize such an executor. Redfield L. & P. of Surrogates' Courts, 220. So in Arkansas, Rust v. Witherington, 17 Ark. 129; Barasien v. Odum, 17 Ark. 122. So in Kansas, Eox [257] V. Van Norman, 11 Kansas, 214.] The definition of an executor de son tort, by Swinburne, Godolphin, and Wentworth, is in the same words, viz, " He who takes upon himself the office of executor by in- trusion, not being so constituted by the de- ceased, nor, for want of such constitution, substituted by the [ecclesiastical] court to administer." Swinb. pt. 4, s. 23, pi. 1 ; Go- dolph. pt. 2, c. 8, s. 1 ; Wentw. Off. Ex. c. 14, p. 320, 14th ed. But the term is, in the older books, sometimes applied to a lawful executor, who mal-administers ; as by the Lord Dyer, in Stokes v. Porter, Dyer, 167 a. [It is only in case of inter- meddling with the goods or personal estate of one deceased that a person becomes ex- ecutor de son tort ; no intermeddling by a person with the lands or real estate of the deceased will charge him as executor. King V. Lyman, 1 Root, 104; Mitchel v. Lunt, 4 Mass. 654 ; Nass v. Van Swearingen, 7 Serg. & R. 192, 196. Such interference with the real estate of the deceased is a wrong done to the heir or devisee. Par- sons C. J. in Mitchel v. Lunt, 4 Mass. 659. Neither are the lands of the deceased liable CH. V.J OF AN EXECUTOR DE SON TORT. 297 A very slight circumstance of intermeddling with the goods of the deceased will make a person executor de son tort, (a^') „ rrii • • • 1 ■ T~v ■ • • What acts Thus it IS said m Dyer, in margine, (6) that milking the constitute cows, even by the widow of the deceased, or taking a tor de son dog, will constitute an executorship de son tort. So in '"''*■ one case the taking a bible, and in another a bedstead, (c) were held sufficient, inasmuch as they were the indicia of the person so interfering being the representative of the deceased, (d') So if a man kills the cattle, (e) or uses or gives away, or sells any of the goods, (/) or if he takes the * goods to satisfy his own debt or legacy ; (^) or if the wife of the deceased take more apparel than she is entitled to, she will become executrix de son tort. (A) So there may be a tort executor of a term for years : as where a man enters upon the land leased to the deceased, and takes possession, claiming the particular estate ; (i) though with respect to a term to be taken to satisfy a judgment recovered against an executor de son tort. Mitchel V. liunt, 4 Mass. 654, 659.] (oi) [Emery v. Berry, 28 N. H. 473, 482, 483. In this case Eastman J. said : " The best rale that occurs to us, that can be laid down upon the subject, is this : that all acts which assume any particular con- trol OTer the property, without legal right shown, will make a person executor in his own wrong as against creditors. Any act which evinces a legal control, by posses- sion, direction, or otherwise, will, unex- plained, make him liable." Campbell v. Tousey, 7 Cowen, 64; Lee i!. Chase, 58 Maine, 435 ; White v. Mann, 26 Maine, 361 ; Hubble v. Fogartie, 3 Eich. (S. Car.) Law, 413 ; Givens v. Higgins, 4 McCord, 286 ; Wilson v. Hudson, 4 Harring. 168; Church J. in Bacon v. Parker, 12 Conn. 212 ; Leach v. Prebster, 35 Ind. 415.] . (6) P. 166 b. (c) Eobin's case, Noy, 69. (rf) Toller, 38. (e) Godolph. pt. 2, c. 8, s. 4. (/) Read's case, 5 Co. 33 b; Padget V. Priest, 2 T. K. 97 ; Godolph. pt. 2 c. 1, s. 1 ; Swinb. pt. 4, s. 23 ; [Gilchrist J. in Leach v. Pillsbury, 15 N. H. 139.] So if he gives them away to the poor. Dyer, 166 6, in marg. (g) Godolph. pt. 2, c. 8, s. 1 ; Swinb. pt. 4, B. 23. [See Stephens v. Barnett, 7 Dana, 257.] (A) Stokes u. Porter, Dyer, 166 6; 1 EoU. Abr. 918, Executors, C. 2, pi. 2; Wentw. OfF. Ex. c. 14, p. 325, 14th ed. ; Godolph. pt. 2, c. 8, s. 1 ; Swinb. pt. 4, s. 23. [So if a widow continues in the possession of her deceased husband's goods, and uses them as her own, she is liable as an executrix de son tort. Hawkins v. Johnson, 4 Blackf. 21. See Chandler w. Davidson, 6 Blackf. 367. But it would be otherwise, where, being left in possession of her husband's goods, she uses them to support herself and family, though after his death if unknown to her. Brown v. Benight, 3 Blackf. 39.] (t) Godolph. pt. 2, c. 8, s. 5 ; Mayor of Norwich v. Johnson, 3 Lev. 35 ; S. C. 3 Mod. 90 ; 2 Show. 457 ; Comberb. 7 ; Gartb a. Taylor, 1 Freera. 261, and see 2 Prest. on Convey, p. 319 et seq. [In Haskins t'. Hawkes, 108 Mass. 379, it was held that where the heirs of a mortgagee, after the decease of their ancestor, who had not taken possession in his lifetime, entered the mortgaged premises to foreclose, and took the rents and profits, they became,_by such intermeddling with the property, ex- ecutors in their own wrong in respect to the rents and profits received, and liable [258] 298 OF AN EXECUTOR DE SON TORT. [PT. I. BK. III. of years in reversion there can be no executorship of this nature, because it is incapable of entry. (^) And if he that has from the ordinary letters ad colligendum, sell or dispose of any goods, though otherwise subject to perishing, it makes him executor of his own wrong ; even though, by the letters ad colligendum, he be war- ranted thereunto ; for the judge himself may not do so. (J) Again, if a man demands the debts of the deceased, or makes acquittances for them, or receives them, (m) he will * become ex- ecutor de son tort, (my) In a modern case, it was held, that if a man's servant sells the goods of the deceased, as well after his death as before, by the directions of the deceased given in his lifetime, and pays the money, arising therefrom, into the hands of his master, this makes the master, as well as the servant, executor de son tort, (n) And it seems to be established that the agent of an executor de son tort collecting the assets, with a knowledge that they belong to the testator's estate, and that his principal is not the legal personal representative, may himself be treated as an executor de son tort, (o) to be treated as such by the mortgagor in a bill to redeem, even after the time for redemption would have expired, had they been lawfully entitled to foreclose the mortgage.] Where the entry of the wrong-doer is general, he is a disseisor of the fee-simple, and not an executor de son tort. lb. See, also, Bac. Abr. Executors, B. 3, 1. (k) Kenrick v. Burgess, Moore, 126. (/) Anon. Dyer, 2.')6 a; Wentw. Off. Ex. c. U, p. 324, 14th ed. ; Godolph. pt. 2, c. 8, s. 1 ; Swinb. pt. 4, s. 23. In what cases the mere taking possession of the goods of the deceased will or will not create an executorship de son tort, see Bead's case, 5 Co. 33 6 ; 1 Roll. Abr. 918, pi. 5; Wentw. Off. Ex. 327, 14th ed. ; Swinb. pt. 6, s. 22, pi. 2 ; Fleier v. South- cot, Dyer, 105 6 ,• lb. 106 b ; Garter v. Dee, 1 Freem. 13 ; Parsons v. Mayesden, lb. 151 ; Serle v. Waterworth, 4_M. & W. 9 ; post, 262. Some possession is color- able, and still none in law to charge, &c. as in the case of an overseer or supeiTisor (see ante, 243, 244), or one who is made executor by a will, which is afterwards disproved by the proving of one later; [259] Dyer, 166 6,- in which case he may plead the special matter, sans ceo that he ad- ministered in any other manner. lb. (m) Godolph. pt. 2, c. 8, s. 1; Swinb. pt. 4, s. 23. {m''-) [But payments made to such ex- ecutor do not protect the person paying against a suit by the rightful executor or administrator. Hunter v. Wallace, 13 Upper Can. Q. B. 385 ; Lee v. Chase, 58 Maine, 434, 435.] (n) Padget v. Priest, 2 T. R. 97. (o) Sharland v. Mildon, 5 Hare, 468; [Ambler v. Lindsay, L. B. 3 Ch. D. 198, 206. In Brown v. Sullivan, 22 Ind. 359. it was held that taking possession of prop- erty at the request of the widow of the de- ceased, for the purpose of taking care of it, did not make one liable as executor de son tort. In Givens v. Higgins, 4 McCord, 286, it was decided that one acting as agent for the widow In regard to the funds of the estate, and not knowing what rela- tion she held to them, would be considered as her agent merely, and not as exercising such control over the funds as to make himself liable. In this case last stated, the defendant had, by direction of the widow. CH. v.] OF AN EXECUTOR DE SON TORT. 299 So if a man pays the debts of the deceased, or the fees about proving his will, this will constitute him executor de son tort; Qp) but it is otherwise if he pays the debts or fees with his own money. (c[) Living in the house, and carrying on the trade of the deceased, (a victualler), was held a sufficient intermeddling to make the de- fendant executor de son tort, notwithstanding his wife (the daugh- ter of the deceased) proved the will after the action was com- menced, and she and her husband were acting together, and were in the house before the death of the testator, (r) Likewise, if a man sue as executor, or if an action be brought against him as executor, and he pleads in that character, this will make him executor de son tort, (s) With respect to fraud, by the statute 43 Eliz. c. 8, after recit- ing that " forasmuch as it is often put in ure to the defrauding of creditors, that such persons as are to have the administration of the goods of others dying intestate committed unto them, if they require it, will not accept the same, but suffer or procure the ad- ministration to be granted * to some stranger of mean estate, and not of kin to the intestate, from whom themselves or others by their means do take deeds of gifts and authorities by letter of at- transferred certain property of the de- with the administration of the person who ceased in payment of one of his debts. In may thereafter be appointed. When, how- Magner v. Ryan, 19 Missou. 196, it was ever, one can show that he has acted in also decided that a person, who had, by good faith, at the request of the party en- direction of the widow, sold certain goods titled to administration, in doing an act and paid oyer to her the proceeds, was not in disposing of perishable property appar- liable as executor de son tort, and that no ently necessary for the purpose of having one was liable as such for acts in reference its proceeds reach those entitled to them to the administration of an estate, which and has paid over the proceeds to the party he had done merely as the servant of at whose request he has thus acted, he is another. In the somewhat similar case of not responsible for a wrongful conversion Perkins v. Ladd, 1 14 Mass. 420, 423, 424, of the property."] Devens J., referring to the last two above {p} Godolpb. pt. 2,c. 8, s. 1 ; Swinb.pt. cited and stated cases, said : " Both these 4, b. 23. last cases go much farther than the pres- (y) lb. ; Went. Off. Ex. 326, 14th ed. ; ent case, and perhaps farther than we [Carter w. Robbins, 8 Rich. (S. Car.) 29.] should be willing to go. The rules against (r) Hooper «. Summersett, Wightw. 16. intermeddling with the estates of deceased (s) Godolph. pt. 2, c. 8, s. 1 ; Com. Dig. persons are important, as the interval of Administrator, C. 1 ; [Davis v. Connelly, time between the decease and the appoint- 4 B. Mon. 136; Brown v. Leavitt, 26 N. ment of an administrator affords oppor- H. 495 ; Brown v. Durbin, 5 J. J. Marsh, tunities of which evil disposed, or even in- 170 ; Pleasants v. Glasscock, 1 Sm. & M. trusive and officious persons, should not be Ch. 17 ; Hill v. Henderson, 13 Sm. & M. allowed to take advantage, by interfering 688.] r260] 300 OF AN EXECUTOR DE SON TORT. [PT. I. BK. III. torney, whereby they obtain the estate of the intestate into their hands, and yet stand not subject to pay any debts owing by the same intestate, and so the creditors for lack of knowledge of the place of habitation of the administrator, cannot arrest him nor sue him ; and if they fortune to find him out, yet for lack of ability in him to satisfy of his own goods the value of that he hath con- veyed away of the intestate's goods, or released of his debts by way of wasting, the creditors cannot have or recover their just and due debts," it is enacted " that every person and persons that hereafter shall obtain, receive, and have any goods or debts of any person dying intestate, or a release or other discharge of any debt or duty that belonged to the intestate upon any fraud as is afore- said, or without such valuable consideration as shall amount to the value of the same goods or debts, or near thereabouts (except it be in or towards satisfaction of some just and principal debt of the value of the same goods or debts to him owing by the intestate, at the time of his decease), shall be charged and chargeable as executor of his own wrong ; (t) and so far only as such goods and debts coming to his hands, or whereof he is released or discharged by such administrator will satisfy, deducting nevertheless to and for himself allowance of all just, due, and principal debts upon good considerg,tion, without fraud, owing to him by the intestate at the time of his decease, and of all other payments made by him which lawful executors or administrators may and ought to have and pay by the laws and statutes of this realm." So, if in his lifetime the deceased made a deed of gift, or bill of sale, of all his goods and chattels to another, in fraud of his cred- itors, and the donee after the death of the donor * disposes of these goods, and chattels, by these means he shall be executor in his own wrong, (u) (t) See Godolph. pt. 2, e. 8, s. 2 ; Swinb. 329 ; M'Morine v. Storey, 4 Dev. & Bat. pt. 4, s. 23; Kitchen v. Dixon, Goldsb. (Law) 189; Morrison v. Smith, Busbee 116, pi. 12; 2 H. Bl. 26, note (b). (N. Car.) Law, 399 ; Garner v. Lyies, 35 («) Godolph. pt. 2, t. 8, ti. 1 ; 1 Sid. 31, Miss. 176 ; Gleaton v. Lewis, 24 Geo. 209 ; pi. 9; 1 Koll. Abr. 549, 0. 1, pi. 3; Rowland v. Dews, R. M. Charlt. 383; Stamford's case, 2 Leon. 223 ; Hawes v. Dorsey v. Smithson, 6 Har. & J. 61 ; Stur- Leader, Cro. Jac. 271; S. C. Yelv. 197; divant v. Davis, 9 Ired. 365 ; Allen w. Kim- Edwards «. Harben, 2 T. E. 587; [Hopkins ball, 15 Maine, 116; Crunkleton v. Wil- ti. Towns, 4 B. Mon. 124 ; Norfleetw. Rid- son, 1 Browne, 360; Clayton v. Tucker, dick, 3 Dev. 221 ; Bayner v. Robertson, 3 20 Geo. 452 ; Warren u. Hall, 6 Dana, Dev. 439 ; Bailey v. Miller, 5 Ired. (Law) 450 ; Densler v. Edwards, 5 Ala. 31 ; Si- 444 ; Tucker u. Williams, Dudley (S. C), monton v. M'Lain, 25 Ala. 353. But it [261] OH. v.] OF AN EXECUTOR DE SON TORT. 301 When the will is proved, or administration granted, and an- other person then intermeddles with the goods, this shall not make him executor de son tort, by construction of law, because there is another personal representative of right against whom the cred- itors can bring their actions ; and such a wrongful intermeddler is liable to be sued as a trespasser, (x) But, though there be a law- ful executor or administrator, yet if any other take the goods claiming them as executor, or pays debts or legacies, or intermed- dles as executor, in this case, because of such express claiming to be executor, he may be charged as executor of his own wrong, although there were another executor of right. («/) has been held that the donee will not be treated as such executor, where he has sold the goods and chattels in the lifetime of the donor, although he may have retained the proceeds after his decease. Morrill v. Mor- rill, 13 Maine, 415. An administrator who holds property of his intestate under a fraudulent conveyance, is liable as an ex- ecutor de son tort. Norfleet v. Riddick, 3 Dev. 221. But it is otherwise where one merely sets up a claim to the goods of the intestate, under a fraudulent conveyance, and thereby injures the sale of them. Bar- nard V. Gregory, 3 Dev. 223. But it is not necessary in such cases to charge the fraud- ulent grantee or donee, as executor de son tort ; the creditor has a remedy in the due course of administration. In Bowdoin v. Holland, 10 Cush. 17, it was held that if a judge of probate is satisfied that a cred- itor of a deceased non-resident has reason- able grounds for an averment that the debtor has fraudulently conveyed his real estate in Massachusetts, he ought to grant administration upon the estate of such per- son in order that the question of fraud, may be fully tried in a court of common law. And such administration may be granted in Massachusetts although the de- ceased left a will which has not been proved and allowed in the state of his domicil. Bowdoin v. Holland, 10 Cush. 17; Ste- vens V. Gaylord, 11 Mass. 256, 263.] (x) Anonymous, 1 Salk. 313 ; Godolph. pt. 2, c. 8, s. 3 ; [M'Morine v. Storey, 3 Dev. & Bat. (Law) 87.] But one who gets the goods of the testator into his hands may be sued as executor de son tort, al- though afterwards and before- the writ brought, administration be legally granted to another. lb. ; Kellow v. Westcombe, 1 Freem. 122 ; S. C. 3 Keb. 202 ; [M'Mo- rine V. Storey, 3 Dev. & Bat. (Law) 87.] (y) Bead's case, 5 Co. 34 a; Went. Off. Ex. 326, 14th ed. ; Godolph. pt. 2, s. 1 ; Swinb. pt. 4, s. 23 ; Com. Dig. Adminis- trator, C. 1 ; [Howland v. Dews, R. M. Charlt. 383 ; Mitchell v. Kirk, 3 Sneed, 319 ; Foster v. Nowlin, 4 Missou. 18 ; Car- ter V. Robbins, 8 Rich. (Law) 29 ; Ambler V. Lindsay, L. R. 3 Ch. D. 198.] How- ever, this was denied at N. P. in Hall v. Elliott, Peake N. P. C. 87, by Lord Ken- yon, who said it was impossible there should be a lawful executor and an ex- ecutor de son tort at the same time. Ob- servations to the same effect were also made by Sir T. Plumer M. R. in Tomlin v. Beck, 1 Turn. & R. 438, where his honor held, that a person who was permitted by an ex- ecutor to possess himself of part of the as- sets of a testator, and who, after the ex- ecutor's death, and when there was no legal representative, either of the testator or the executor, retained the assets, and acted in the execution of the trusts of the will, was not executor de son tort to the original testator. [That there may be both a rightful executor and an executor de son tort at the same time, see Dorsey v. Smithson, 6 Har. & J. 61 ; Foster v. Wal- lace, 2 Missou. 231 ; Chamberlayne v. 302 OF AN EXECUTOR DE SON TORT. [PT. I. BK. HI. But there are many acts which a stranger may perform without What acts incurring the hazard of being involved in such an execu- fnake'a torship ; such as locking up the goods for preserva- man exeou- ^Jqjj ^^-s directing the funeral, in a manner suitable to tor, de son ' V y o _ ' tort. the * estate which is left, and defraying the expenses of such funeral himself, or out of the deceased's effects, (a) making an inventory of his property, (6) feeding his cattle, (c) repairing his houses, or providing necessaries for his children ; (c?) for these are offices merely of kindness and charity, (e) In a modern case, (/) the widow of a hairdresser, one Joseph Waterworth, who died in October, 1836, continued to reside in his house and keep open the shop (through which was the entrance to the house), but there was no proof of any articles being sold. In December, she received notice of a bond debt of 1001. due from him, and had his goods valued. On January 3d, 1837, on the application of a creditor, to whom Joseph Waterworth, at the time of his death, owed 24Z. for goods, she gave a promissory note for that amount, payable to the creditor twelve months after date. In March, she took out administration. It was held, in an action against her on the promissory note, that this was not evidence to charge her as executrix de son tort. (^) Temple, 2 Rand. 384 ; Hopkins v. Towns, a person deceased, for the purpose of pro- 4 B. Men. 124 ; Howland v. Dews, E. M. viding the funeral, he will not thereby be- Charlt. 383 ; Simonton v. M'Lain, 25 Ala. come chargeable as executor de son tort ; 353 ; and that if the rightful executor is unless he receive a greater sum than is also a creditor of the estate, he may sue the reasonable for that purpose, regard being executor de son tort, and recover his debt, had to the estate and condition of the de- and the fact that the plaintiff is rightful ceased ; which is a question for the jury, executor will not defeat the action. See Camden v. Fletcher, 4 M. & W. 378. Dorsey v. Smithson, 6 Har. & J. 61 ; (*) Godolph. pt. 2, c. 8, s. 6. Shields v. Anderson, 3 Leigh, 729 ; Os- (c) Godolph. pt. 2, i;. 8, s. 8. borne v. Moss, 7 John. 161.] [d) Godolph. pt. 2, t. 8, s. 6. (z) Godolph. pt. 2, c. 8, s. 6. So if one («) Swinb. pt. 2, s. 23 ; Bac. Abr. tit. do but take a horse of the deceased, and Executors, B. 3, 1; Toller, 40; [Brown tie him in his own stable. Godolph. pt. 2, v. Sullivan, 22 Ind. 264 ; Emery v. Berry, c. 8, s. 3 ; Wentw. Off. Ex. 325, 14th ed. 28 N. H. 483.] (a) Dyer, 166 b, in margin j Fitzh. Ex- (/) Serle u. Waterworth, 4 M. & W. 9. eoutors, pi. 24 ; 1 Roll. Abr. 918, Execu- (g) [Chandler u. Davidson, 6 Blackf. tors, C. 2, pi. 4 ; Wentw. Off. Ex. c. 1 4, p. 367.] The defendant had pleaded that one 323, 14th ed. ; Godolph. pt. 2, c. 8, s. 6 ; Joseph Waterworth, before and at the Harrison !). Rowley, 4 Ves. 216 ; [Wagner time of his death, was indebted to the 17. Ryan, 19 Missou. 196 ; Bacon r. Parker, plaintiff in 2il. for goods sold, which sum 12 Conn. 212 ; Devens J. in Perkins v. was due to the plaintiff at the time of the Ladd, 114 Mass. 420, 422, 423.] So where making of the note in the declaration men- a party receives a debt due to the estate of tioned ; that the plaintiff^ after the death [262] CH. v.] OF AN EXECUTOR DE SON TORT. 303 * If another man takes the goods of the deceased, and sells or gives them to me, this shall charge him as executor of his own wrong, but not me. (K) Accordingly, where a lessee died intes- tate during the term, and his widow entered, without taking ad- ministration, and paid rent, and afterwards her son-in-law took the premises, with her concurrence, and with the assent of the landlord, and paid rent and continued to occupy during the re- mainder of the term ; it was held that he could not be considered as assignee in the law of the lease ; for though the widow might have been chargeable as executrix de son tort, he had not made himself executor de son tort by taking the premises from her. (i) Again, if a person sets up in himself a colorable title to the goods of the deceased, as where he claims a lien on them, though he may not be able to make out his title completely, he shall not be deemed an executor de son tort. (¥) So if a man lodge in my of Joseph, applied to the defendant for payment ; whereupon, in compliance with his request, the defendant, after the death of Joseph, for and in respect of the debt so remaining due to the plaintiff as afore- said and for no other consideration what- ever, made and deliyered the note to the plaintiff; and that Joseph died intestate, and that at the time of the making and delivery of the note, no administration had been,granted of his effects, nor was there any executor of his estate, nor any person liable for the debt so remaining due to the plaintiff as aforesaid ; and the plea then averred that there never was any consider- ation for the said note except as aforesaid. The barons of the exchequer held, after verdict for the defendant, that the plea was no answer to the declaration, inasmuch as it did not negative every consideration for the promissory note, for that it did not al- lege there were no assets ; and the effect of giving the note was, at all events, to pre- clude the plaintiff, for a year, from suing the defendant, in case she should after- wards take out administration, which was a sufficient consideration for the giving of the note. But this decision was afterwards overruled in the exchequer chamber. Nel- son V. Serle, 4 M. & W. 795. (A) Godolph. pt. 2, c. 8, B.. 1 ; Com. Dig. Administrator, C. 2 ; [Johnson v. Gaither, Harper (S. Car.), 6; Nesbit v. Taylor, 1 Rice (S. Car.), 296. A purchase from an executor de son tort will not charge the purchaser as an executor rfe«on tort. Smith v. Porter, 35 Maine, 287.] It might be otherwise, if a case of collusion could be made out. See, also, stat. 43 Eliz. c. 8 ; ante, 259, 260. [Where creditors of an intestate demanded and received their debts from the widow, out of the estate, knowing that administration had not been taken out, and that the widow had no authority to pay them, they were held liable as executors in their own wrong, to the administrator subsequently appointed. Mitchell V. Kirk, 3 Sneed, 319.] (i) Paull V. Simpson, 9 Q. B. 365. (k) Flemings v. Jarrat, 1 Esp. N. P. C. 336 ; [Densler v. Edwards, 5 Ala. 31 ; Smith V. Porter, 35 Maine, 287 ; Claus- sen v. Lafrenz, 4 Green (Iowa), 224; "Ward w. Bevill, 10 Ala. 197; Barnard v. Gregory, 3 Dev. 223. If, upon the death of a principal, his surety sells property conveyed to him as security, with power of sale, to indemnify himself for his lia- bility, he will not for this cause be con- sidered an executor de son tort. O'Reily V. Hendricks, 2 Sm. & M. 388. Nor is he liable as such, because a surplus [263] 304 OF AN EXKCUTOR DE SON TORT. [PT. I. BK. III. house, and die there, leaving goods therein behind him, I may keep them, until I can be lawfully discharged of them, without making myself chargeable as executor in my own wrong, (l) Or if I take * the goods of the deceased by mistake, supposing them to be my own, this will not make me executor of my own wrong. (»h) Likewise, a man who possesses himself of the effects of the deceased, under the authority of and as agent for the rightful executor, cannot be charged as executor de son tort, (n) But, although a person, cannot, therefore, be charged as such while he acts under a power of attorney, made by one of several executors who has proved the will, yet if he continues to act after the death of such executor, he may be charged as executor de son tort, though he act under the advice of another of the executors, who has not proved or administered, (o) In Beavan v. Lord Hastings, (^) an Englishman having died intestate in Belgium, possessed of real and personal property there, his brother went over from England and obtained represen- tation to him pur et simple, which by the Belgian law imposed upon him a personal obligation to pay all the debts of the intes- tate independently of the amount of the assets. The intestate's remains in his hands after discharging his possession of goods as the agent of B. claim, if there be no lawful representative and by his order, and B. afterwards took of the deceased to pay it to. O'lieily v. out administration, the agency and order Hendricks, 2 Sm. & M. 388. See Hawk- prevented ihe act of A. from being the ins V. Johnson, 4 Blackf. 21 ; Chandler v. act of an executor de son tort; for that Davidson, 6 Blackf. 267 ; Foster v. Now- the tort of B. was purged by his becoming lin, 4 Miss. 18.] administrator, and his order became right- (l) Godolph. pt. 2, c. 8, s. 3 ; Swinb. ful ab initio, so that the agent's act was pt. 4, 5. 23; Com. Dig. Administrator, also purged. But see posi, 269, note (r). C. 2; [Graves v. Page, 17 Missou. 91.] (o) Cottle v. Aldrich, 4 M, & Sel. 175; (m) lb. S. C. 1 Stark. N. P. C. 37 ; [Turner v. {n] Hall V. Elliot, Peake N. P. C. 87; Child, 1 Dev. (N. Car.) Law, 331 ; Am- [Turner v. Child, 1 Dev. 25.] A person bier v. Lindsay, L. K. 3 Ch. D. 198, 206.] who deals with the goods of a testator, as But see Tomlin u. Beck, ante, 261, note agent of executors who afterwards prove {y). [The administrator of a person the will, cannot be treated as executor chargeable as an executor de son tort does de son tort. Sykes v. Sykes, L. E. 5 C. not himself become executor de son tort, P. 113. It has been held, however, to by merely taking the property, the posses- be no defence that the goods were taken sion of which rendered his intestate so by consent of a person to whom admin- chargeable. Alfriend i>. Daniel, 48 Geo. istration was afterwards granted. Par- 1 54. As to an executor de son tort of an sons V. Mayesdeti, 1 Freem. 152. But in executor de son tort, Dawson v. Calla- Hill V. Curtis, L. E. 1 Eq. 90, it was way, 19 Geo. 573.] held by Wood V. C. that where A. took (p) 2 JS^y & J. 724. [264] CH. v.] OF AN EXECUTOR DE SON TORT. 305 brother afterwards returned to this country, but did not take pos- session of any property in England belonging to the intestate. A creditor of the * intestate obtained letters of administration to him in England. And it was held by "Wood V. C. that he could not sue the intestate's brother in equity in respect of the personal liability which he had so incurred, but that his remedy to recover his debt was at law. His honor held also that the intestate's brother, as he had not taken possession of any of the English property of the intestate, was not an executor de son tort, (jiji) The question whether executor de son tort., or not, is a conclu- sion of law and not to be left to a jury: whether the party did certain acts is indeed a question for a jury ; but when these facts are established, the result from them is a question of law. (5) When a man has so acted, as, to become in law an executor de son tort, he thereby renders himself liable, not only to an Liability of action by the rightful executor or administrator, but also desm'tort; to be sued as executor by a creditor of the deceased, (r) or by a legatee : (s) for an executor de son tort has all the liabilities. (p^) [See Eastman J. in Willard v. Hammond, 21 N. H. 382, 385. An inhab- itant of one state, in whose house an in- habitant of another state dies, is not an executor de son tort for paying over money found upon the person of the deceased to a rightful administrator in the latter state. Nesbit V. Stewart, 2 Dev. & Bat. (Law) 24. See Graves 0. Page, 17 Missou. 91. But where money was received by a father, residing in New Hampshire, as the avails of iho estate of his son, who died in California, and nothing was disclosed showing the purpose for which the money was sent, or that any one in California or elsewhere had any right to its legal con- trol, it was held that the possessor of the money in New Hampshire might be charged as executor de son tort by a cred- itor of the deceased. Emery v. Berry, 28 N. H. 473. To the same effect, see Foster v. Nowlin, 4 Missou. 18. So an executor appointed in a neighboring state may be sued in New York as executor de son tort, and will be liable for all assets which he has not applied in due course of administration, or in payment of the tes- voL. I. 20 tator's debts, whether the assets were re- ceived in New York, or received abroad and arrived there. Campbell u. Tousey, 7 Cowen, 64. See Hopkins v. Towns, 4 B. Mon. 124; Evans v. Tatem, 9 Serg. & R. 258; Campbell v. Sheldon, 13 Pick. 8.] (9) Padget V. Priest, 2 T. E. 99. (r) Godolph. pt. 2, v.. 8, ». 2 ; [Elder v. Littler, 15 Iowa, 65.] On this ground, in a case where the defendant acted as ex- ecutor, but did not take out probate till sixteen years after the testator's death, the lord chancellor (Eldon) allowed a plea of the statute of limitations ; because he might have been sued as executor de sort tort. Webster v. Webster, 10 Ves. 93 ; [Ambler v. Lindsay, L. E. 3 Ch. D. 198, 207 ; Coote v. Whittington, L. R. 16 Eq. 534. But see Phaelon v. Houseal, 2 McCord Ch. 423.] (s) 1 Roll. Abr. 910, Executors, P. pi. 1 ; Bac. Abr. Executors, B. 3, 3. [See Hansford v. Elliott, 9 Leigh, 79. But persons, chargeable as executors de son tort, are not liable to account to the next of kin, but to the duly appointed executor or administrator of the deceased. Muir [265] 306 OF AN EXECUTOR DE SON TOET. [PT. I. BK. HI. though none of the privileges, that belong to the character of ex- ecutor, (t) In an action by a creditor he shall be named executor gener- ally ; (u) for the most obvious conclusion which stran- gers can form from his conduct is, that he has a will of the deceased, wherein he is appointed executor, but has not yet proved it. (v) And accordingly it has lately been * held, (a;) that if a man be sued as the executor of an executor for a debt of the original testator, it is no in aa ac- tion or suit by a credit- or of the deceased or a party benefi- cially inter- ested in his estate. V. Leake & Watts Orphan House, 3 Barb. Ch. 477 ; Hazelden v. Whitesides, 2 Strobh 353. The executor de son tort cannot be cited to account before the probate court. Peeble's Appeal, 15 Serg. & E. 41 ; Stock- ton V. "Wilson, 3 Penn. 129.] (i) Carmichael v, Carmichael, 1 Phill. C. C. 103, per Lord Cottenham. [In a case where the defendant, sued as executor in his own wrong, pleaded the statute of limitations. Bell J. said the defendant "contends that as the plaintiff has de- clared against him as executor, and as the defendant, by pleading the statute of lim- itations, has admitted that he is executor, he is to be regarded and treated through- out as the rightful executor, and entitled to any defence that such rightful executor could have. But there is no pretence that we are aware of, that this was true at common law. The liability of an exec- utor de son tort is in its nature essentially distinct from that of an executor duly ap- pointed. It is governed by different rules and subject to different principles. The one is founded on consent and contract, while the other, whatever its form of ac- tion, is in substance founded on tort. By our statutes, the distinction between the two cases is kept up." Brown v. Leavitt, 26 N. H. 494, 495. So those rights which the law allows to an executor, on account of his office, can be claimed by a rightful executor only. M'Intire v. Carson, 2 Hawks (N. Car.), 544. And where a trust is imposed upon an executor in the settle- ment of the estate, by the will of the de- ceased, it cannot be enforced against an executor de son tort. In Campbell v. Sbel- [266] don, 13 Pick. 824, Wilde J. said: "An executor de son tort cannot settle the es- tate of the deceased, he cannot sue for and collect the debts due to the estate, nor make any valid disposition of the goods and effects, so that no trust can arise by any acts and doings of his in Massachu- setts. The trust estate is not vested in him, nor does any trust devolve on him in consequence of his unauthorized inter- meddling." See Marcy v. Marcy, 32 Conn. 308; Bennett v. Ives, 30 Conn. 329; Francis v. Welch, 11 Ired. (Law) 215. An executor de son tort is not en- titled to an action. Francis v. Welch, 11 Ired. 215. Such an executor has no right to reduce assets, and is therefore not chargeable for not reducing and ad- ministering them. Kinard u. Young, 2 Rich. Eq. 247.] («) Coulter's case, 5 Co. 31 a; Prince V. Rowson, 1 Mod. 208 ; S. C. 2 Mod. 51 ; Godolph. pt. 2, t. 8, o. 2 ; 1 Saund. 265, note (2) to Osborne v. Rogers ; [Brown v. Durbin, 5 J. J. Marsh. 170; Buckminster V. Ingham, Brayt. 116; Bell J. in Brown V. Leavitt, 26 N. H. 495 ; Pleasants v. Glasscock, 1 Sm. & M. Ch. 17 ; Stockton v. Wilson, 3 Penn. 129 ; Gregory v. For- rester, 1 McCord Ch. 318; Meyrick v. Anderson, 14 Q. B. 719; Lee w. Chase, 58 Maine, 435.] (v) 2 Bl. Com. 507, 508. The posses- sion and occupation, or meddling with the goods, is that which gives notice to creditors whom they are to sue as exec- utor. By the Lord Dyer, Wentw. Off. Ex. c. 14, p. 322, 14th ed. (x) Meyrick v. Anderson, 14 Q. B. 719. CH. v.] OF AN EXECUTOR DE SON TORT. 307 answer to the action, that he is only executor de son tort to the original rightful executor. If there should be also a lawful execu- tor, they may be joined in the suit, or sued severally ; but it is otherwise if there be a lawful administrator, for he cannot be joined in a suit with the executor de son tort. («/) And if the executor de son tort, being sued by a creditor, should plead ne v.nques executor, on which issue should be joined, this issue, on proof of acts by the defendant, such as constitute in law an executorship de son tort, would be found against him, and the judgment thereon would be, that the plaintiff do recover the debt and costs, to be levied out of the assets of the testator if the defendant have so much, but if not, then out of the defend- ant's own goods, (z) (y) "Wentw. Off. Ex. 328, 14th ed. Godolph. pt. 2, c. 8, s. 2 ; Com. Dig. Ad- ministrator, C. 3 ; [Howland v. Dews, R. M. Charlt. 383 ; Stephens v. Barnett, 7 Dana, 257.] There cannot be an admin- istrator de son tort; the law knows no such appellation. Godolph. pt. 2, c. 8, B. 2. [See Eastman J. in Willard v. Ham- mond, 21 N. H. 385.] {z) Eobbin's case, Noy, 69 ; Wentw. Off. Ex. c. 14, pp. 331, 332, 14th ed. ; Bull v. Wheeler, Cro. Jac. 648 ; 1 Sannd. 336 b, note (10) to Hancock v. Prowd; Hooper V. Summersett, Wightw. 19, by Thomp- son B. ; [Howland v. Dews, R. M. Charlt. 383 ; Stephens v. Barnett, 7 Dana, 257 ; Hnbbell v. Fogartie, 1 Hill (S. Car.), 167; Campbell v. Tousey, 7 Cowen, 64; Par- sons C. J. in Mitchel i>. Lunt, 4 Mass. 654, 658; Peters «. Breckenridge, 2 Cranch C. C. 518. The creditor of an intestate who has recovered judgment against an executor de son tort cannot levy his execu- tion issued on such judgment upon the real estate left by the intestate Mitchel V. Lunt, 4 Mass. 654.] As to whether in any cases of levy out the goods of the ex- ecutor de son tort equity can afford relief, see Robinson v. Bell, 2 Vern. 147, where the Lord Commissioner Hutchins cited a case in the Lord Bacon's time, in which, upon an action of debt upon a bond of seven hundred pounds, brought against one as executor, he pleaded ne ungues ex- ecutor, and upon the evidence it appeared, that a chimney-back, or other matter of very small value, had come to his hands ; and thereupon a verdict passed against him, and the judges came into court, and informed the lord keeper this was the fact; and the party was relieved in equity; and he also cited the case of Cryer «. Goodhand, in Lord Nottingham's time, where, in an action of debt brought against the widow of an ale-house keeper, who died intestate, she pleaded ne ungues executor, and all the proof that was against her was, that she had taken money for some few pots of ale sold in the house after her husband's death ; and upon hear- ing she was relieved. However, the gen- eral rule is, that a court of equity will not relieve either mispleading or where there is a neglect or want of plea. See Treat, on Eq. bk. 1, c. 3, ». 3. [In Missis- sippi, by statute, an executor de son tort is liable only to the extent of the assets in his hands, and judgment should be rendered against him in the ordinary form, although he may err in pleading. Hill v. Henderson, 13 Sm. & M. 688. By statute, in New Hampshire, an executor de son tort is held liable to the actions of creditors and others aggrieved to double the amount of the estate he intermeddles with. Bel- lows V. Goodall, 32 N. H. 97. Under the statutes of Iowa, an executor de son tort is liable to be sued by any creditor of the 308 OF AN EXECUTOR DE SON TORT. [PT. I. BK. III. However, though an executor de son tort cannot by his * own wrongful act acquire any benefit, yet he is protected in all acts not for his own benefit, which a rightful executor may do. And, accordingly, if he pleads properly, he is not liable beyond the extent of the goods which he has administered, (a) Therefore, in an action by a creditor of the deceased, under a plea of plene ad- ministravit, he shall not be charged beyond the assets which came to his hands ; (5) and in support of this plea, he may give in evidence the payments by himself of just debts of the deceased, of equal or superior degree to that on which the action is brought, which have exhausted such assets, (c) So even after action brought, he may apply the assets, which are in his hands, to the payment of a debt of superior degree, and plead such payment in bar of the action, (d) So he may give in evidence, under the estate, to the value of the property taken or received by him, and for all damages caused by his acts. Elder v. Littler, 15 Iowa, 65. By the statute of Massachu- setts, regulating this subject, " every exec- utor in his own wrong shall be liable to the rightful executor or administrator for the full value of the goods or effects of the deceased taken by him, and for all dam- ages caused by his acts to the estate of the deceased." Genl. Sts. c. 94, § 15. See Boot V. Geiger, 97 Mass. 178. (a) Godolph. pt. 2, c. 8, s. 2 ; Wentw. Oif. Ex. 331, 14th edition; [ante, 266, note («) ; Sawyer J. in Bellows v. Good- all, 32 N. H. 99 ; Nass v. Van Swearingen, 7 Serg. & p. 196 ; Glenn „. Smith, 2 Gill & J. 493. He may make defence as the rightful executor. Stockton v. Wilson, 3 Penn. 129 ; Weeks v. Gibbs, 9 Mass. 77. " As an executor in his own wrong is sub- jected only to the actions of creditors, and others aggrieved, he has a right to raise the question, whether the plaintiff, at the time of bringing his action, was a creditor. If the plaintiff's right of action has be- come barred by the statute of limitations, he has ceased to be a creditor within the meaning of the statute. But if a claim still exists, and has not become finally barred by any statute, if it is capable of being enforced against the estate whenever an administrator is duly appointed to rep- [267] resent the estate, the claimant is a creditor, and may bring his action against any one who embezzles the estate." Thus an action may be brought against an executor in his own wrong, if a cause of action exist against the debtor at his decease, until the action is barred by the lapse of such time as may be allowed in such cases for bringing an action after a lawful grant of administra- tion. Brown w. Leavitt, 26 N. H. 493.] (b) Dyer, 156 b, in margin ; 1 Saund. 265, note (2) to Osborne v. Rogers ; Hooper V. Summersett, Wightw. 21, per curiam; Yardley v. Arnold, Carr. & M. 434 ; [Leach V. House, 1 Bailey (S. Car.), 42 ; Cook v. Sanders, 15 Rich. (S. Car.) 63; Kinard v. Young, 2 Rich. (S. Car.) Eq. 247 ; Hill v. Henderson, 13 Sm. & M. 688 ; McKenzie V. Pendleton, 1 Bush (Ky.), 164 ; Bellows V. Goodall, 32 N. H. 99 ; Glenn v. Smith, 2 Gill & J. 493.] (c) Wentw. c. 14, pp. 333, 334, 14th ed. ; Ayre v. Ayre, 1 Ch. Cas. 33 ; White- hall V. Squire, Carth. 104, by Lord Holt; Mountford u. Gibson, 4 East, 453, in the judgment of Le Blanc J.; 2 Bl. Com. 508; Bac. Abr. Executors, B. 3, 2 ; [Dorsett V. Frith, 25 Geo. 537 ; Weeks v. Gibbs, 9 Mass. 74; Winn v. Slaughter, 5 Heisk. 191.] (d) Oxenham v. Clapp, 2 B. & Ad. 309. Sec, further, post, pt. m. bk. n. ch. n. §in. CH. v.] OF AN EXECUTOR DE SON TORT. 309 same plea, that he has delivered the assets to the rightful execu- tor or administrator before action brought, (e) An executor de son * tort may well plead ne unques executor and also plene admin- istravit, and, although on the former issue he should be unsuccess- ful, he may have a verdict on the latter. (/) But it is no defence, either under a plea of plene administra- vit or a special plea, that after action brought, and before plea pleaded, the defendant delivered over the assets to the rightful executor or administrator ; (^) not even, though, in fact, no administration was granted to any one till after the action was brought. (A) So payments made by an executor de son tort, pending a suit in equity for an account of an intestate's estate, to a person who took out administration after the institution of the suit, and was thereupon made a co-defendant, will not be allowed, (i) And it has been said that a man who is sued in equity as ex- ecutor de son tort, jointly with the rightful executor, cannot set up as a defence that he had, even before the bill was filed, ac- counted for his receipts and payments to his co-defendant, and paid over the balance ; for that an executor de son tort cannot, by settling with the personal representative, discharge himself from liability to the parties beneficially interested in the testator's (e) Anon. 1 Salk. 313; Padget y. Priest, fendants, by taking the goods on the death 2 T. R. 97, in the judgments of Ashurst of the pauper, had made themselves execu- J. and Buller J. ; Curtis v. Vernon, 3 T. tors de son tort, yet as the jury found that R. 590, in Lord Kenjon's judgment ; Hill the agreement with Joseph amounted to a V. Curtis, ^osi, 268, note [k). In Samuel transfer of the office, and not to a sale of 0. Morris, 6 C. & P. 620, which was an the goods to him by the defendants, they action of trover, the plaintiff had pledged were not liable to the plaintiff, because he the goods in question to a parish pauper for being a pawnor of the goods, a mere seiz- a debt. On the pauper's death, the defend- ure of them did not amount to conver- ants, who weie the parish overseers, took sion. the goods, together with those of the pau- (/) Hooper v. Summersett, Wight. 20, per, in order to pay the expenses of his by Wood B. funeral. When the bill for the cofBn was (g) Curtis v. Vernon, 3 T. R. 587 ; S. brought in by one Joseph, who had made C. affirmed in error, 2 H. Bl. 18. The it by their order, they proposed that he reason seems to be that the creditor would should have all the goods, to make what he thereby be put into a worse situation ; he could of them, if he would pay the rent would have to bring a second action due to the landlord of the house in which against the rightful executor. 2 B. & Ad. the pauper had lived, and all the funeral 315. expenses. To this proposal Joseph as- (A) 3 T. R. 587 ; 2 H. Bl. 18. sented, and took the goods and sold them. (i) Layfield v. Layfield, 7 Sim. 172. And Parke B. held, that although the de- [268] 310 OF AN EXECUTOR DE SON TOET. [PT. I. BK. III. estate, (k') So the agent of an * executor de son tort, who has, by collecting the assets, made himself also liable as executor de son tort, cannot discharge himself by showing that he has duly accounted for his receipts to his principal ; for the rule that the receipt of the agent is the receipt of the principal does not apply to the case of a wrong-doer. (1} An executor de son tort cannot give in evidence, under 2?lene administravit, or specially plead, a retainer for his own debt ; (Z^) for otherwise the creditors of the deceased would be running a race to take possession of his goods, without taking administration to him. (m) And it will make no difference though the debt due to the executor de son tort be of a superior degree to that of the creditor who brings the action against him. (n) Nor though the rightful executor or administrator has assented to such re- tainer, (o) If the executor de son tort should plead, the retainer to satisfy his own debt, the plaintiff, though he had sued the de- fendant as executor generally, may reply, that he is executor de son tort. (j>) If he attempts to give the retainer in evidence, under plene administravit, the plaintiff must show the will, and who are the rightful executors. (5) Yet if an executor de son tort afterwards, pendente lite, obtains administration, he may retain ; for it legalizes those acts which were tortious at the time, (r) And, therefore, * if subsequently to (Ic) Carmichael v. Carmichael, 2 Phill. Glenn v. Smith, 5 Gill & J. 493 ; Brown v. C. C. 101, per Lord, Cottenham. But this Leavitt, 26 N. H. 493, 495; Kinard v. dictum was doubted by Wood V. C. in Young, 2 Eich. Eq. 247 ; Partee v. Caagh- Hill V- Curtis, L. R. 1 Eq. 90. Lord Cot- ran, 9 Yerger, 460.] tenham appears to have been in8uenced by (m) Coulter's case, 5 Co. 30 a; S. C. the reasoning that even the rightful execu- Cro. Eliz. 630 ; Wentw. Off. Ex. c. 14, tor cannot discharge himself by settling p. 333, 14th ed. accounts with a co-executor. But Wood (n) Curtis o. Vernon, 2 T. R. 587 ; 2 V. C. pointed out the reason for this, viz, H. Bl. 18. that a rightful executor is bound to ad- (o) lb. minister the assets which he receives, and (p) Alexander v. Lane, Yelv. 137. it is not enough simply to hand them over (q) Arnold v. Arnold, Bull. N. P. 143. to his co-executor. But an executor de (r) Pyne u. Woolland, 2 Ventr. 180; ioniort is not so bound; and may discharge Williamson v. Norwitch, Sty. 337; 1 himself by showing that he has delivered Saund. 265, note (2) to Osborne v. Eog- the assets to the rightful executor before ers ; [Colt J. in Hatch v. Proctor, 102 action brought. Ante, 267. Mass. 351, 354 ; Alvord v. Marsh, 12 Al- (Z) Sharland K. Mildon, 5 Hare, 469. len, 603; Wagner v. Eyan, 19 Missou. (Zi) [Shields t). Anderson, 3 Leigh, 729 ; 196; Priest v. Watkins, 2 Hill (N. Y.), Chapman C. J. in Carey v. Guillow, 105 225 ; Rattoon v. Overacker, 8 John. 126 ; Mass. 18, 21 ; Turner v. Child, 1 Dev. 331 ; Andrew v. Galliaon, 15 Mass. 325, note ; [269] [270] CH. V.J OF AN EXECUTOR DE SON TORT. 311 the replication that he is executor de son tort, he obtains adminis- tration, he may rejoin that fact by way of plea puis darrein con- tinuance ; for it is consistent with the retainer in the plea, (s) With respect to the liability of an executor de son tort at the suit of the lawful representative of the deceased, there His liabil- are several authorities to show, that if the rightful aoti'on'by executor or administrator bring an action of trover or |^fe"fgal trespass, the executor de son tort may give in evidence, ^^^ under the general issue, and in mitigation of damages, payments made by him in the rightful course of administration: (£) upon this ground, that the payments which are thus, as it is termed, recouped in damages, were such as the lawful executor or admin- istrator would have been bound to make ; and therefore, it can- not be considered as any detriment to him, that they were made by an executor de son tort, (u) But the executor de son tort can- not plead, in bar, to an action by the rightful executor or admin- istrator, 'payments of debts, &c. to the value of the assets, or that he has given the goods in satisfaction of the debts ; (x) and. Richardson C. J. in Clements v. Swain, 2 N. H. 476 ; Farrell's Estate, 1 Tuck. Sur. 110.] Bat if administration be granted to one after he hath intermeddled wrong- fully with the deceased's goods, this will not purge the wrong done before; and, therefore, a creditor may sue him as execu- tor de son tort, or as a lawful administra- tor, at his election. Lanry u. Aldred, 2 Brownl. 185 ; Godolph. pt. 2, c. 8, s. 2 ; Com. Dig. Administrator, C. 1 ; [Green v. Dewit, 1 Boot, 183 ; Partee v. Caughran, 9 Yerger, 460.] But see Hill v. Curtis, ante, 264, note (n). (s) Vaughan u. Browne, 2 Stra. 1106 ; S. C. Andr. 328 ; 1 Saund. 265, note (2), to Osborne v. Rogers ; [Shillaber «. Wy- man, 15 Mass. 322; Andrew v. Gallison, 15 Mass. 325, note; Priest v. Watkins, 2 Hill, 225 ; Hoar J. in Alvord v. Marsh, 12 Allen, 604, 605 ; Emery v. Berry, 28 N. H. 473; Wagner v. Ryan, 19 Missou. 196; Richardson C. J. in Clements v. Swain, 2 N. H. 476 ;] but see Whitehead v. Samp- son, 1 Freem. 265. (t) Graysbrook v. Fox, Plowd. 282; Anon. 12 Mod. 441 ; Whitehall v. Squire, Carth. 104, by Holt C. J.; Padget v. Priest, 2 T. R. 100, by Buller J. ; Mount- ford i>. Gibson, 4 East, 454, by Le Blanc J. ; 2 Bl. Com. 508 ; Bac. Abr. Exors. B. 3, 1 ; Fyson v. Chambers, 9 M. & W. 468, per Lord Abinger ; [Chapman C. J. in Carey v. Guillow, 105 Mass. 18, 21 ; Saam . May, B. for the price of the goods. Hatch v. 2 Hill Ch. 22, it was held that where a Proctor, 102 Mass. 351. The promise of judgment is recovered against one as ex- an executor de son tort, to pay a debt of ecutor de son tort, and he afterwards takes the deceased, will not prevent the bar of out letters of administration on the estate, the statute of limitations to a suit for the the judgment will bind the estate in his debt brought against him afterwards, when [273] CH. V.J OF AN EXECUTOR DE SON TORT. 315 gether with the question as to what may be done by an ad- ministrator before letters of administration are granted, (k') he is rightful administrator. Hazelden v. Elliott, 9 Leigh, 79. See ante, 265, note Whitesides, 2 Strobh. 353; Hansford v. (r).] (k) Post, pt. I. bk. V. ch. i. § ii. 316 OF THE EXECUTOR'S REFUSAL [PT. I. BK. III. * CHAPTER THE SIXTH. OF THE BXECUTOK'S EBFTJSAL OB ACCEPTANCE OF THE OFFICE. SECTION I. When and how the Office may he refused. The office of executor being a private one of trust, named by Executors the testator, and not by the law, the person nominated cannot be , . compelled may refuse, though he cannot assign the office ; (a) and the-office: even if in the lifetime of the testator he has agreed to accept the office, it is still in his povrer to recede. (6) But though the executor cannot be compelled to accept the but might executorship, whether he will or not, yet by stat. 21 be con- Hen. 8, c. 5, s. 8, the ordinary might convene before the ordi- him (c) any person made and named executor of any narv to ac- i , cept or testament, " to the intent to prove or refuse the testa- re use. ment ; " and if he neglected to appear, he was, previous to the stat. 53 Geo. 8, c. 127, punishable by excommunication for a contempt ; (cZ) and might subsequently be dealt with in the mode substituted by that statute, s. 2, for excommunication, (e) This power of citation to take or refuse probate was, it is appre- hended, transferred to the court of probate by the 23d section of the court of probate act, 1857, and a neglect to appear to the citation may be punished as for a contempt of the court under the 25th section. * The time allowed to the person named executor, to deliberate (a) Bac. Abr. Exors. E. 9. See Doug- (d) Bro. Executors, pi. 90; Wentw. las V. Forrest, 4 Bing. 704, in the judg- Off. Ex. 88, 14th ed. ; Treat, on Eq. bk. 4, ment of Best C. J. ; [Dunning b. Ocean pt. 2, t. 1, s. 4. National Bank of the City of New York, (c) See stat. 2 & 3 W. 4, c. 93. (Act 6 Lansing, 296, 298, and cases cited.] for enforcing Process upon Contempts in (b) Doyle «. Blake, 2 Sch. & Lef. 239. the Courts Ecclesiastical.) (c) See stat. 1 Edw. 6, c. 2, as to the form of the citation. [274] [275] CH. VI. § I.] OR ACCEPTANCE OF THE OFFICE. 317 whether he will accept or refuse the executorship, is uncertain, and left to the discretion of the judge, who has used, at his pleas- ure, not only within the year, but within a month or two, to issue his citation, (f) And now, if the executor administer, he will by stat. 55 Geo. 3, c. 184, s. 37, be liable to a penalty of lOOZ. and lOZ. per cent, on the duty, if he omit to take probate within six months. If he appear, either on citation or voluntarily, and pray time to consider whether he will act or not, the ordinary might, Letters ad , , , . , , 1 colUgen- though the practice seems now obsolete, grant letters dum: ad colligendum in the interim, (a') But if he appear, adminis- . . ^'^^ rr ' ti-ation cum and refuse to act, or fail to appear to the above men- testa- tioned process, administration cum testamento annexo nexo. will be granted to another. (^) And by stat. 21 & 22 Vict. c. 95, s. 16, " whenever an execu- tor appointed in a will survives the testator but dies Stat 21 & without having taken probate, and whenever an execu- c. 95, s. 16: tor named in a will is cited to take probate and does not not acting appear to such citation, the right of such person in peal-tngto respect of the executorship shall wholly cease, and the ^„°|,'|f''''° representation to the testator and the administration of treated as , , .if lie liad his effects shall and may, without any further renuncia- renounced. tion, go, devolve, and be committed in like manner as if such person had not been appointed executor." (i) (/) Swinb. pt. 6, s. 4 ; Godolph. pt. 2, c. 19, s. 1. [When a renunciation bj' one named as executor will be presumed from length of time, without qualifying or in- termeddling with the estate, see Marr v. Peay, 2 Murph. (N. C.) 85.] (g) Broker v. Charter, Cro. Bliz. 92; Treat, on Eq. bk. 4, pt. 2, c. 1, s. 4 ; Tol- ler, 41 ; [post, 445.] (h) Swinb. pt. 6, s. 1 , pi. 3 ; s. 2, pi. 3, 4. See, as to administration cum testamento an- ncro, generally, jjosi, pt. I. bk. v. eh. iii. §1- (i) [See Ke Drayton, 4 McCord, 46; Allen J. in Hartnett „. Wandell, 60 N. Y. 356.] This enactment seems, in effect, to extend the 79th section of the stat. 20 & 21 Vict. c. 77 (post, 286), to the case of a party cited, who will not renounce or take any step. Therefore, where an exec- utor to whom power has been reserved survives his acting co-executor, and does not appear to a citation, the case will stand as if his name had never appeared in the will, and the executors, if any, of the acting executor will be the representa- tive of the original testator. In the Goods of Noddings, 2 Sw. & Tr. 15, So on the death of an executor, without having either renounced or taken probate, the executor of the survivor of two acting executors becomes the personal repi'esen- tative of the original deceased. In the Goods of Lorimer, 2 Sw. & Tr. 471. The section applies where the executor is cited to take probate of a copy of a will, and does not appear. Davis v. Davis, 31 L. J., P. M. & A. 216. [Renunciation by one named as executor may be implied from his refusal to act as such. Ayres u. 318 OF THE EXECUTOE'S REFUSAL [PT. I. BK. m. cases an executor may re- fuse; he cannot if he once adminis- ter. * Although, as above stated, an executor has his election whether In what he will accept or refuse the executorship, yet he may determine such election, by acts which amount to an ad- ministration. For if he once administer, it is considered that he has already accepted of the executorship, and the court may compel him to prove the will. (/) And by stat. 55 Geo. 3, c. 184, s. 37, as before mentioned, if he administer, and omit to take probate within six months after the death of the deceased, &c. he wiU forfeit IQOl. and 101. per cent, on the duty. If an executor of an executor intermeddle in the administration of the effects of the first testator, he cannot refuse the adminis- tration of the effects of the latter ; but it has been said that he may take upon himself the latter, and refuse the former. (A) However, the established practice of the prerogative court is to the contrary, (l) Weed, 16 Conn. 291 ; Solomon v. Wixon, 27 Conn. 520; Thornton u. Winston, 4 Leigh, 152. Where an executor named in a will does not qualify or intermeddle with the estate for twenty years, it has been held, that a renunciation of his trust win he presumed. Marr v. Peay, 2 Murph. (N. Car.) 85. Where a person, named in the will as executor with other persons, being » judge of probate, re- ceived the will for probate from the other executors, allowed it to be proved before him, took bonds from the other executors, and assumed jurisdiction of the settlement of the estate under the will, it was held, that these acts were sufficient evidence of a renunciation of the trust, and were equivalent to an express refusal to accept it. Ayres «. Weed, 16 Conn. 291. As to the effect of a neglect to qualify as show- ing a refusal to act, see Uldrick v, Simp- son, 1 S. Car. 283.] ij) Godolph. pt. 2, c. 19, s. 2 ; Swinb. pt. 6, s. 2, pi. 6 ; s. 22, pi. 1 ; Bro. Exors. pi. 90 ; Wickenden o. Thomas, 2 Brownl. 58; Graysbrook v. Fox, 1 Plowd. 280, 280 a ; Hensloe's case, 9 Co. 37 6 ; Treat, on Eq. bk. 4, pt. 2, c. 1, s. 3 ; Pytt v. Fcn- dall, 1 Cas. temp. Lee, 553 ; Long v. Symes, 3 Hagg. 774 ; [Van Home o. [276] Fonda, 5 John. Ch. 388 ; Ambler v. Lind- say, L. R. 3 Ch. D. 198. If he proves the will generally without qualification he will be deemed to have accepted the trusts. Worth V. M'Arden, 1 Dev. & Bat. Eq. 199.] (k) Shep. Touch. 464; Hayton v. Wolfe, Cro. Jac. 614; S. C. Palmer, 156; Hut- ton, 30 ; Wankford v. Wankford, 2 Freem. 520 ; 1 Salk. 309 ; [Worth i>. M'Arden, 1 Dev. & Bat. (S. C.) Eq. 199; ante, 254, note (6).] (/) In the Goods of Perry, 2 Curt. 655. Lord Holt certainly laid down In Wank- ford ». Wankford, that the executor of an executor may renounce being executor to the first testator. But it appears from the report in Freeman, that his lordship referred for this position to Hayton v. Wolfe. And it should be observed that, although, in that case, the court seems to have entertained the same opinion, yet, in fact, the point was not properly raised there ; because the first executor had died without having obtained probate of the will of the first testator. Indeed, this is pointed out by Freeman in his report of Wankford v. Wankford ; for after stating the dictum of Lord Holt, the reporter adds, " Sed semble q'iste lime ne warranle cest point, q' in le case in Cro. le volant ne CH. VI. § I.J OR ACCEPTANCE OF THE OFFICE. 319 There are some old cases, in which it is laid down, that if * an executor has once administered, not only is he compellable to undertake the office if the court desires it, but that the court has no jurisdiction to accept his refusal, and grant administra- u the ordi- tion cum iestamento annexo to another ;(m) and in one "e'7sh°is case it was expressly holden, that if such an administra- reiysai, , . . ana grants tor bnng an action, it is a good plea to say, that the adminis- executor made by the will has administered, (w) But is valid/ these cases appear to have been decided while a great thVexfcu- jealousy of the ecclesiastical court prevailed ; and the ^^^^^^ *'^' law, it should seem, is now taken to be, that the court ^^''^^■ may (though perhaps he ought not) accept the testator's refusal, notwithstanding he has administered, (o) So if the executor has acted, and the court, not knowing it, commits administration to another, though the administration may be revoked, and the ex- ecutor compelled to prove the will, (j)) yet the grant of admin- istration cum testamento annexo, until so revoked, is valid ; and, consequently, in neither of these cases can a debtor to the testa- tor, in answer to a suit by such administrator, set up the act in pais of the executor against his renunciation, in order to delay or prevent a recovery by the administrator. (5) If one of several executors, after intermeddling with the effects, renounces, his renunciation is invalid, and the record of it on the probate granted to his co-executors ought to be cancelled, (r) The only sense in which the committing of the administration under such circumstances can now be said to be void, is, Tiie exec- as far as respects the protection of the executor; for if bietobe he has once administered, he will remain liable to be though ad- sued * as executor, both at law and in equity, in spite of "0°'^™" his renunciation, and the consequent appointment of an granted to administrator, (s) So if an executor administer to part tehas ad- ministered. fult prove per le executor." See Brooke 0. quod fieri non debuit. See, also, Jackson Haymes, L. R. 6 Eq. Cas. 25. v. Whitehead, 3 Phillim. 577. (m) Graysbrook v. Fox, I Plowd. 280, (p) "Wentw. Off. Ex. 91, 14lh ed. ; Go- 280 a; Wankford v. Wankford, 1 Salk. dolph. pt. 2, c. 31, s. 3. 308 ; Hawkins & Lawse's case, 1 Leon. (9) Doyle v. Blake, 2 Sch. & Lef. 237. 155. (r) In the Goods of Badenach, 3 Sw. & (n) Parten & Baseden's case, 1 Mod. Tr. 465. 213. (i) Wentw. Off. Ex. 92, 14th ed.; Par- (o) 1 Roll. Abr. Exor. C. 2, p. 907 ; sons v. Mayesden, 1 Freem. 151; Doyle Wentw. Off. Ex. 91, 14th ed. 2 Sch. & v. Blake, 2 Sch. & Lef. 237 ; Rogers v. lief. 237. Factum valet, says Wentwortb, Frank, 1 Y. & Jerv. 409. [277] [278] 320 OF THE EXECUTOR'S REFUSAL [PT. I. BK. III. of the assets, he shall be charged with the receipts, as executor, though he renounced the executorship, and paid the money to the other executor who proved the will, (f) The general question as to the liability, to creditors and legatees, of an executor who renounces after an act of administration, or who proves the will, and then professes to renounce his representative character, will be considered at large in a subsequent part of this treatise, (u) With respect to what acts will amount to an administering, wiiat such as to render an executor compellable to take pro- alT^admii- ^'^^^i two general rules may be laid down : 1st, That istration. whatever the executor does with relation to the goods and effects of the testator, which shows an intention in him to take upon him the executorship, will regularly amount to an ad- ministration. 2dly, That whatever acts will make a man liable as an executor de son tort, (v) will be deemed an election of the executorship, (w) Hence, it has been adjudged, that if the executor takes pos- session of the testator's goods, and converts them to his own use, or disposes of them to others, this is an administration, (x) So if he takes goods of a stranger, under an apprehension that they belonged to the testator, and administers them, this amounts to an administration. («/) As * where the testator being tenant at will of certain goods, his executor seized the goods, supposing them to belong to the testator, with an intent to administer ; it was holden, that his intention appearing, this made him executor in law. (z) Where a man who was named as one of several executors, in answer to an inquiry who were the executors, wrote a letter, say- ing, that he and others were executors, this was held to afford sufficient evidence that he had aqted as executor, (a) (() Read v. Truelove, Ambl. 417. (x) Wentw. c. 3, p. 93, 14tli ed. ; [Van (u) Post, pt. IV. bk. II. ch. II. § II. Home v. Fonda, 5 John. Ch. 388;] or (v) See ante, ch. v. p. 257 et seq. as to even take them into his hands, some say, what nets will constitute a man executor without converting of them. lb. de son tort. [Ambler v. Lindsay, L. R. 3 (y) 1 Roll. Abr. 917, pi. 12 ; Bao. Abr. Ch. D. 198.] tit. Executors, E. 10. {w) Godolph. pt. 2, c. 8, s. 1, and o. 6 ; {z) 1 Roll. Abr. 917, pi. 13; Bac. Abr. Bac. Abr. tit. Executors, E. 10 ; Toller, tit. Executors, E. 10. 43 ; Rayner v. Green, 2 Curt. 248 ; but (a) Tickers v. Bell, Jurist, April 16, see Wentw. Off. Ex. c. 3, p. 94, 14th ed. ; 1864; 3 N. R. 624 ; [4 De G., J. & S. [Van Home v. Fonda, 5 John. Ch. 388, 274.] 404.] [279] CH. VI. § I.] OR ACCEPTANCE OF THE OFFICE. 321 But if an executor seizes the testator's goods, claiming a prop- erty in them himself, though afterwards it appears that he had no right, yet this will not make him executor ; for the claim of property shows a different view and intention in him than that of administering as executor. (6) If an executor receives debts due to the testator, and, especially if he gives acquittances for such debts, this amounts to an elec- tion of the executorship ; so, if he releases a debt due to the testator, (c) So, if there are two executors, and one of them hath a specific legacy devised to him, and he takes possession of it, without the consent of his co-executor, this amounts to an administration ; for a devisee cannot take a personal chattel devised to him, without the assent of the executor. (cZ) In a modern case (e) the insertion of an advertisement calling on persons to send in their accounts, and to pay money due to the testator's estate, to A. and B. " his executors in trust," was held to make them compellable to take probate, and to subject them personally to the costs occasioned by their resistance ; the estate being small, and left for two years and a half without a repre- sentative. *An executor who has not proved is not to be considered as acting by assisting a co-executor, who has proved, in writing letters to collect debts, nor by writing directly to a debtor of the testator, and requiring payment. (/) But in Harrison v. Gra- ham, (^) Barbara Graham by will appointed her mother, her sisters Margaret and Elizabeth, and her brother Robert, her ex- ecutors, and died. Margaret alone proved the will, and acted chiefly as executor, and was described as the only acting one, in a letter of attorney executed by the others, who were therein de- scribed as executors, to empower Margaret to receive a quantity of stock. Robert, by virtue of another letter of attorney, executed by the other executors, transferred a quantity of the testatrix's S. S. stock, received the money, and paid it over the same day to (6) Bac. Abr. tit. Executors, E. 10. 10. See infia, pt. iii. bk. in. ch. iv. § (c) ■Wentw.OfE.Ex.94, Uthed.; Swinb. in. pt. 6, s. 22, pi. 2 ; Boll. Abr. 917, pi. 7, 8 ; (e) Long v. Symes, 3 Hagg. 771. Pytt D.Fendall, 1 Cas. temp. Lee, 553. (/) Orr v. Newton, 2 Cox, 274. See, (d) 1 Roll. Abr. 917, tit. Executors, also, Stacey ». Elph, 1 My. & K. 195. B. pi. 9; Bac. Abr. tit. Executors, E. (?) 3 Hill's MSS. 239 ; 1 P.Wms.241, note (y) to 6th ed. VOL. I. 21 [280] 322 OF THE EXECUTOR'S REFUSAL [PT. I. BK. III. Margaret. After this she and the mother died, making Robert their executor. It did not appea that Robert had, under the first executorship, done any other act as executor, besides giving the one letter of attorney, and receiving the other. But Lord Hard- "wicke held that this was such an act of administration in Robert as should make him chargeable as to his own estate. (A) Taking the oath as executor is not to be considered as an inter- meddling such as to preclude renunciation, (i) In a utormay case indeed, decided 31 Car. 2, the executor named in after"heis the will had taken the usual oath, and then refused (but sworn. after a caveat entered), and another endeavored to ob- tain letters of administration. The executor came afterwards to desire the will under probate, and contested the granting of ad- ministration ; and it was adjudged against him, supposing that he was bound by the refusal. But after an appeal to the dele- gates, a mandamus was prayed, and granted by the * court of king's bench ; for that, having taken the oath, he could not be admitted to refuse, and the ecclesiastical court had no further authority. (¥) However, if he has not administered, the court will now, upon his own application, dismiss him, and allow him to renounce probate, even after the usual oath, and an appearance given as executor. Such a renunciation was permitted in a modern case, (V) in order that the executor might be examined as (A) The judgment in this case will be suitable person, with the will annexed, or found fully stated, post, pt. it. bk. ii. ch. otherwise as the case may require. Genl. II. § II. [As to the effect of an executor Sts. c. 101, s. 5. See Russell v. Hoar, 3 proving the will generally without attempts Met. 187; Thayer u. Homer, 11 Met. 104. ing to qualify the act, see Worth v. M'Ar- So in New Hampshire. Morgan v. Dodge, den, 1 Dev. & Bat. (N. C.) Eq. 199.J 44 N. H. 258. In North Carolina, the (i) 3 Hagg. 216; [Miller v. Meetch, 8 court of probate may accept the renun- Penn. St. 417.] But he cannot renounce ciation of an executor at any time before after he has taken probate. In the Goods he has intermeddled with the effects of of Veiga, 32 L. J., P. M. & A. 9. [It has the testator, even after he has proved the been held in Massachusetts that an exec- will. So of the executor of an executor utor, after probate of the will, accepting as to the first will. Mitchell v. Adams, the trust, and giving bond for its faith- 1 Ired. 298. But an executor who has ful execution, cannot renounce the trust, entered upon the discharge of his trust Sears v. Dillingham, 12 Mass. 358. But cannot afterwards resign it. Haigood v. it is now provided by statute that an exec- Wells, 1 Hill (S. Car.), 59; Washington utor or administrator may, upon his re- v. Blunt, 8 Ired. Eq. 253. See Finn quest, be allowed to resign his trust, when i/. Chase, 4 Denio, 85 ; In re Mussault, it appears to the probate court to be proper ; T. U. P. Charlt. 259.] and upon such resignation, the court shall (4) Anon. 1 Ventr. 335. grant letters of administration to some (/) Jackson v. Whitehead, 3 Phillim. [281] CH. VI. § I.] OR ACCEPTANCE OP THE OFFICE. 323 a witness ; and Sir John NichoU, in giving his judgment, seemed to doubt the correctness of the report of the former case, and said that at most it only decided that a voluntary renunciation is not so binding as to exclude an executor from the duties of the execu- torship. With respect to the mode of refusal by the executor, it is laid down that refusal cannot be verbally, or by word, but it How an must be by some act entered or recorded in the spiritual «'<:«'=i'of court; and therefore must be done before some judge nounoe: spiritual, and not before neighbors in the country, (mi) the refusal But if the executor send a letter to the ordinary, by "e^ln^aL which he renounces, and the refusal be recorded, it is but in the in ■ i /- IN « • spiritual sutticient. (m') As m a case where Sir Ralph Rowlet ™"rt-- made the Lord Keeper Bacon, C. J. Catlin, and the master of the rolls, executors ; they wrote a letter to the ordinary, that they could not attend the executorship, and therefore wished him to commit administration ; who did so, making every one of their re- fusals to be recorded ; and this was held good, (w) And accord- ingly it has been lately held that the renunciation need not be under seal, (o) Until the refusal is recorded, no person can take administra- tion. (^) 577. See, also, Panchard u. Weger, 1 Phil- that there may be a valid renunciation of lira. 212 ; Meek v. Curtis, 1 Hagg. 129; the executorship of a will by matter in In the Goods of Wilkinson, 3 Phillim. 96 ; pais. Thornton v. Winston, 4 Leigh, 152. Long V. Symes, 3 Hagg. 774. [See Saw- See Thompson v. Meek, 7 Leigh, 419 ; yer v. Dozier, 5 Ired. (N. Car.) Law, 97.] ante, 275, note (t).] (m) Wentw. OfF.Ex. 88, 14thed. ; Long (ml) [Commonwealth v. Mateer, 16 w. Symes, 3 Hagg. 776 ; [Newton w. Cocke, Serg. & K. 416; Miller v. Meetch, 8 10 Ark. 169 ; Muirhead ;;. Muirhead, 6 Penn. St. 417. But see Thompson v. Sm. & M. 451. In Stebbins v. Lathrop, Meek, 7 Leigh, 419.] 4 Pick. 33, 44, Wilde J. said: "If the (n) Broker v. Charter, Cro. Eliz. 92; executor refuse the executorship, his re- S. C.Owen, 44; Moor, 272; 1 Leon. 135; nunciation should be entered and recorded. Wentw. Off. Ex. 88, 14th ed. ; Godolph. A refusal by any act in pais, as a mere pt. 2, c. 19, s. 4. naked declaration to that effect, is not suf- (o) In the Goods of Boyle, 3 Sw. & Tr. ficient." So the refusal of those entitled 426. [See Commonwealth v. Mateer, 16 to administration with the will annexed, Serg. & R. 416. By statute in New York, after renunciation by the executor, should the renunciation is required to be by an. appear of record, before administration is instrument in writing, attested by two wit- granted to a creditor. Stebbins v. Lathrop, nesses, and must be acknowledged orother- 4 Pick. 33. See Ayres v. Clinefelter, 20 wise proved and filed. 2 R. S. 70, § 8.] 111. 465 ; Casey v. Gardiner, 4 Bradf. Sur. (p) 3 Hagg. 776; [Stebbins v. Lathrop, 13. But it has been held in some cases 4 Pick. 33, 44; Robertson v. McGeoch, U 324 OF THE EXECUTOR'S REFUSAL. [PT. I. BK. III. before * In case the ordinary himself were made executor, whe™the ^^^^ ^® might refuse before his own commissary, (^q) ordinary jf ^ party renounce in person, he takes an oath that executor : lie has not intermeddled in the effects of the deceased, and will not intermeddle therein with any view of defrauding the . J ^g_ creditors. But he may renounce by proxy, and then the nunciation: oath is dispensed with, (r) executor I^ ^^^ executor refuse to take the usual oath, or, being th"n"ua1 ^ Quaker, to make the affirmation, this amounts to a re- oath: fusal of the office, and shall be so recorded, (s) An executor cannot in part refuse. He must refuse entirely, or his renun- not at all. (*) An exception has been supposed to exist not be" in*"' ^'^ *^® ^^^^ °^ ^'^ testator being executor to another per- part: gon ; for there, it has been said, he might well assent to be executor to the one testator, and refuse for the other. But the established practice of the prerogative court was to the con- trary, (m) the renun- It was the practice of the prerogative office of Canter- not be re- bury iiot to receive the renunciation of a party, unless it ksJacconi- he accompanied by the original will of the deceased, pro- fhe wUi^^ bate of which it purports to renounce, (v) Paige, 640 ; Codding v. Newman, 3 N. Y. Sup. Ct. 364. But see Thompson v. Meek, 7 Leigh, 419.] (?) Wentw. Off. Ex. 89 ; Bro. Ordi- nary, pi. 13. The usual practice of the registry has been to require renunciation to be under the hand of the party en- titled to the grant. But where he is out of England, an authority to renounce by power of attorney may suffice. In the Goods of Rosser, 3 Sw. & Tr. 490. (r) Toller, 42. (s) liex V. Eaines, 1 Ld. Eaym. 363, per Holt C. J. ; Toller, 41. If the exec- utor neglects probate for a year, this is a refusal irrevocable in the civil law. Bewa- corne v. Carter, Moor, 273. [See ante, 275, note (s). One having been appointed by will an executor and also a trustee, will be deemed to have declined the appoint- [282] ment of trustee, if he give bond as exec- utor and does not give bond as trustee. Williams v. Cushing, 34 Maine, 370 ; Gro- ton V. Buggies, 17 Maine, 137. The same is true, whether the executor is appointed trustee directly or is constituted such by construction of the will. Deering v. Ad- ams, 37 Maine, 264, 265. See De Peyster V. Clendining, 8 Paige, 295 ; Judson v. Gibbons, 7 Wendell, 226 ; Hanson u.Wor- thington, 12 Md. 418 ; Knight v. Loomis, 30 Maine, 204 ; Wheatley v. Badger, 7 Penn. St. 459.] («) Paule V. Moodle, 2 Roll. Rep. 132 ; 11 Vin. Abr. 139, pi. 10. [See Thornton V. Winston, 4 Leigh, 152.] («) Ante, 276, note {I). [See 254, note {>>)■] (v) In the Goods of Eenton, 3 Add. 35. CH. VI. § II.] OR ACCEPTANCE OF THE OFFICE. 325 * SECTION n. The Consequence of Renunciation hy an Executor. An executor, who has renounced, may, at a time before the grant of administration cum testamento annexo has passed r^^^ renun- the seal of the court, retract his renunciation, (x) And eiation ^ ^ ■' may be re- even an executor, who had renounced in order to become tracted at a witness in a suit commenced touching the validity of before ad- the will, might, at the termination of such suit, retract "on ^ "' his renunciation, and take probate of the will : (jf) but srau'ed- this could not be done without the consent of all parties in court. (2) If there be a sole executor appointed who renounces, or several executors, who all renounce, administration cum testa- Where mento annexo will thereupon be granted to another, (a) sole execu- and the sole executor in the one case, and each of the erai^who^' several executors in the other, thereupon became incapa- *" ''*" ^ s. r nounce, ble of being at any time afterwards admitted to the ex- and admin- . • 1 1 1 . istration 13 ecutorship. (0) *lt has mdeed been said, that such in- granted: {x) McDonnell w. Prendergast, 3 Hagg. 212, cited and recognized by Sir H. Jen- ner Fnst in Harrison v. Harrison, 4 Notes of Cas. 455, 456; 1 Eobert. 419; [Eobert- sen V. McGeocli, H Paige, 640 ; Genl. Sta. Mass. c. 93, § 6 ; Dempsey's Will, 1 Tuck. Sur. 51.] (y) Tliompson v. Dixon, 3 Add. 272. {z) 3 Hagg. 216. Sir John NichoU ob- served, that the admission of the retracta- tion in such a case had always presented difficulties to his mind. The executor was allowed to renounce, for the purpose of being examined as a witness to forward the ends of justice, and then was allowed to retract for the benefit of the estate. lb. (a) If there are several executors, they must all duly renounce, before administra- tion with the will annexed can be granted. 1 Roll. Abr. 907, pi. 6 ; Toller, 44 ; [Mat- ter of Maxwell, 3 N. J.Eq. (2 Green) 611. A will does not become void by the refusal of the executor to accept the trust. In such case administration is granted with the will annexed. So, if a testamentary disposition of property is made and no ex- ecutor is named. Stebbins v. Lathrop, 4 Pick. 43 ; Jackson 0. Jeffries, 1 Marsh. (Ky.) 88.] (b) Broker i". Charter, Cro. Eliz. 92; S. C. Owen, 44 ; Moor, 272, by the name of Bewacorne v. Carter, 1 Leon. 135; Wentw. Off. Ex. 95, 14th ed.; Hensloe's case, 8 Co. 37 a; Touchst. 466; Robin- son V. Pett, 3 P; Wms. 251 ; [Thornton v. Winston, 4 Leigh, 152.] But if adminis- tration be committed in consequence merely of the default of the executor to come in to prove the will on the above mentioned process of citation, he had a right at any future time to appear and prove the will, and cause the administra- tion to be revoked. Godolph. pt. 2, c. 31, s. 3 ; Wentw. Off. Ex. 92, 14th ed. ; Bax- ter & Bale's case, 1 Leon. 90. But see now, Stat. 21 & 22 Vict. u. 92, o. 16 ; ante, 275. [If a party named as executor in a will, is appointed administrator, before probate, and acts as such, he may, after probate of the will, take upon him- [283] [284] 326 OF THE EXECUTOR'S REFUSAL [PT. I. BK. HI. capacity lasted only during the life of such administrator, and that after his death the renunciation might be retracted, (c) But in a the renun- modern case, where there were two executors, who had ciation can ^^^^ renounced, and administration cum testamento an- never be ' retracted: ng^o had been granted, one of the executors, upon the death of such administrator, wished to retract his renunciation, and to be admitted to take probate as executor ; and in support of the motion for that purpose, it was urged, that an executor, after renunciation and administration granted, had still a right to pro- bate whenever a vacancy occurred in the representation of the deceased. But the court refused to accede to the motion, on an objection of the inconvenience that might occur in other quarters from chains of executorship once broken being thus suffered to revive. Should this deceased, for instance, have been the surviv- ing executor of other testators, and should administrations have been granted of their effects on the renunciation of his executors, if the chain of executorship were to revive, as proposed, there would be double and conflicting representation of such testators ; the one by grant of administration, as above ; the other by the re- vived chain of executorship, (c?) But under the old law, where there were several executors, and but where some renounced before the ordinary, and one or more there aie proved the will, the renunciation was not peremptory, (d^) ecutors, Such as refused, however formally, might, at a subsequent renoance, time, come in and administer ; (e) and although they prove the ^^ never acted during the lives, they might assume the ■"''^ executorship after the death of their co-executors. (/) self the office of executor under it ; the fact Creswick t. Woodhead, 4 M. & Gr. 814, that he has acted as administrator not he- per Tindal C. J. ; [Taggart's Petition, 1 ing deemed in such a case a renunciation Ashm. 321 ; Judson v. Gibbons, 5 Wend, of his right to he executor. Taylor v. 224; Bodle v. Hulse, 5 Wend. 313; Cod- Tibbatts, 13 B. Mon. 177.] ding ^^^Newman, 3 Thomp. & C. (N. Y.) (c) Toller, 42 ; 2 Eoberts. on Wills, 171. 364. The granting of probate and issuing (d) In the Goods of Thornton, Add. letters testamentary to one or more of 273 ; [Thornton v. Winston, 4 Leigh, 1 52.] several executors are not a bar or estoppel (d^) [Taggart'a Petition, 1 Ashm. 321.] to the subsequent administration by the (e) Swinb. pt. 6, s. 3, pi. 22 ; Bro. Ex- others. Matter of Maxwell, 3 N. J. Eq. ecutors, pi. 117; 1 And. 27; Godolph. (2 Green) 611.] pt. 2,c.l9, s. 4; Wentw. Off. Ex.96, 14th (/) Pawlet ». Freak, Hardr. Ill; ed. ; Hensloe's case, 9 Co. 37 o ; Mid- Brooks o. Stroud, 7 Mod. 39 ; Wankford dleton's case, 5 Co. 28 a ; Brookes v. v. Wankford, 1 Salk. 307 ; House v. Lord Brookes, 1 Salk. 3 ; 4 Burn E. L. 244; Petre, 1 Salk. 311; Eex v. Simpson, 3 Treatise on Eq. bk. 4, pt. 2, c. 1, s. 2; Burr. 1463; S. C. 1 W. Bl. 456; Hay- GH. VI. § II.] OR ACCEPTANCE OF THE OFFICE. 82T And it * has been considered that if administration were *» renun- committed to another, before refusal by the surviving notper- executor, such administration would be void, (a) But '™'' *"T' it may be it appears that this position is at variance with the long retracted, established practice of the ecclesiastical court ; according to the to which it has never been deemed necessary that the ?iie°civn" surviving executor should be called upon a second time an'y'tfme to renounce or refuse, before letters of administration ''^''"■f ^" actual were granted to another. And it was deliberately held grant of by Sir H. Jenner Fust (^) on an elaborate review of tion de the authorities, that this practice is right, and that buTnot™' though the surviving executor was entitled to come in af'^^wards. and retract his renunciation, if he thought proper so to do, at any time before the grant of administration de bonis non had passed the seal, (A^) yet if he had not retracted, and his renunciation still remained recorded against him, it was not requisite that he should renounce a second time, or that he should be cited, before a good and valid grant of administration de bonis non to another could be made ; and that the executor, after such a grant had been made, could not procure it to be revoked and obtain a grant of probate to himself, on a retractation of his renunciation made sub- sequently to the actual grant of administration de bonis non. This decision was afterwards fully discussed, and, after a care- ful consideration of all the authorities and doctrines bearing on the subject, confirmed and adopted by the board of exchequer, on the ground that though the stat. * 21 Hen. 8, c. 5, s. 3, requires a refusal by the executor before any grant of administration can be made, yet it is silent as to the time when the refusal is to be ward V. Dale, 2 Cas. temp. Lee, 333 ; Ar- nold V. Blencoe, 1 Cox, 426 ; Cottle «. Aldrich, 4 M. & Sel. 177; Strickland v. Strickland, 12 Sim. 253, 259; [Judson v. Gibbons, 5 Wend. 224 ; Perry v. De Wolf, 2K. I. 103.] See, also, In re Deichman, 3 Curt. 124; ante, 247. According to the older practice of the civilians, if there were two executors, and one refused, and the other took probate, he that did refuse the executorship could not assume the office after the death of his fellow executor. Anon. Dyer, 160 6; Godolph. pt. 2, c. 7, s. 4; Wentw. 96, 14th ed. ; 1 Salk. 311. (g) Wankford v. Wankford, 1 Salk. 307, 308 ; House c^. Lord Petre, lb. 311 ; Fon- blanque's Treat, on Eq. bk. 4, pt. 2, c. 1, ^s. 2, note (d). (A) Harrison v. Harrison, Prerog. H. T. 1846; 4 Notes of Cas. 434; S. C. 1 Robert. 406. (Ai) [One of two executors, who has re- nounced, upon the removal of his co-exec- utor for cause pursuant to statute, and be- fore any letters of administration with the will annexed have been granted, may retract his renunciation, and thereupon have let- ters testamentary issued to him. Codding V. Newman, 3 Thomp. & C. (N. Y.) 364.] [2851 [286] 328 OF THE EXECUTOR'S REFUSAL [PT. I. BK. in. made ; and the ecclesiastical court have invariably treated a formal refusal made in court at any time after the testator's decease as binding, unless the refusing party afterwards, of his own accord, comes in and retracts his refusal ; which practice the barons con- sidered as consistent with the statute, and perfectly reasonable, and not conflicting with any positive decision in the temporal courts, (z) And now by stat. 20 & 21 Vict. c. 77, s. 79, " where any per- Stat. 20& son, after the commencement of this act, renounces pro- bate of the will of which he is appointed executor, or one of the executors, the rights of such person in respect of the executorship shall wholly cease, and the represen- tation of the testator and the administration of his effects shall and may, without any further renunciation, go, de- volve, and be committed in like manner as if such person had not been appointed executor." (/ ) " By rule 50, P. R. (non-contentious business), no person who renounces probate of a will or letters of administration of the personal estate and effects of a deceased person in one character is to be allowed to take a representation to the deceased in another charac- ter." (yfc) It is said by very eminent writers, that where a power is given Whether to executors, they may exercise it, although they re- But with the greatest 21 Vict. c. 77, s. 79. Bights of an execu- tor re- nouncing probate to cease as if he had not been named in the will. Rule 50, P. R. No person renouncing in one character to take representa- tion in another. may, after nounce probate of the will. (J) (j) VenaWes v. The Bast India Comp. 2 Exch. 633. (_;') See In the Goods of Noddings and In the Goods of Lorimer, ante, 275, 276, note (i). There is nothing in this enact- ment to prevent the court from allowing a retractation of the renunciation according to the old practice in a case fit for if, e. g. where it has taken place after an intermed- dling. 3 Sw. & Tr. 466. See In the Goods of "Whitham, L. E. 1 P. & D. 303. {Ic) [But see Briscoe v. Wickliffe, 6 Dana, 157, where it was held that a widow designated in a will as sole executrix, might decline to act in that capacity, and yet might be appointed to act as adminis- tratrix with the will annexed, and might act jointly with another administrator, in the latter capacity, and the acceptance of such appointment would not make her ex- ecutrix in fact, but would rather be evi- dence of her renunciation. Nor would the appointment of the co-administrator be void or irregular. See, ante, 283, note (6) > Sawyer u. Dozier, 5 Ired. 97 ; Miller u. Meetch, 8 Penn. St. 417. So it has been held in Missouri, that an executor, whose appointment is avoided by his being an at- testing witness, may be appointed admin- istrator with the will annexed. Murphy V. Murphy, 24 Missou. 526.] See In the Goods of Lofting, 3 Sw. & Tr. 307, from which it appears that the rule stated in the text is capable of modification by the court. See, also, In the Goods of Russell, L. E. 1 P. & D. 634. (Z) 1 Sugden on Powers, 138, 6th ed. ; 2 Prest. on Abstr. 264. CH. VI. § II.] OE ACCEPTANCE OF THE OFFICE. 329 * deference to their authority, it may be doubted whether renounc- the position is true, unless when the power is given them cise a in their proper names, and without reference to their P"^^"^" office as executors, (jn) If a power has been conferred on a party to a deed, his execu- (m) See Perkins, No. 548,- where the distinction is thus talcen : " If a man will that A. and B., his executors, shall sell, &c. and they refuse before the ordinary, yet it seems they may sell, because they are certainly named, so that it appears the will of the testator is, that they shall sell, whether they refuse or not. But other- wise it shall be (as it seems) if he will that his executors shall sell, without expressing their names, and they all refuse before the ordinary, they cannot sell." See, also, the cases of Yates v. Compton, 2 P. Wms. 309, and Keates v. Burton, 14 Ves. 4.34 (which is cited by Sir E. Sugden). In the latter case, a power was given to " my said trus- tees and executors,'' and one of the ex- ecutors died and the other renounced, with- out exercising it. Sir W. Grant observed, " The power is given to the executors, but they have not exercised it, and they have renounced the only character in which it was competent to them to exercise it." See Ford v. Euxton, 1 Coll. 407 ;' [Dun- ning V. The Ocean National Bank of the City of New Tork, 6 Lansing, 296. In Tainter v. Clark, 13 Met. 220, 226, it ap- peared that the testator appointed T. to be his sole executor, and authorized him to sell and convey such of his (testator's) property, as in T.'s judgment would best promote the interest of all concerned. T. declined to act as executor, and D. was appointed administrator with the will an- nexed ; the question raised was whether the power to sell devolved upon D. After stating some reasons for holding that it did not, Wilde J. added : " There is an- other ground on which we hold, very clearly, that the power to sell has not been transmitted to the administrator, if by law it could be. Tucker, the donee of the power, has never renounced it, and the consequent trust, and we are not aware of any impediment to his executing it. He has, it is true declined the office of execu- tor, but the power of selling real estate is no part of the business of an executor or administrator ; unless he • obtains license under the statute he has no interest in the land, and no authority to sell it, ex- cept the authority which may be derived from the statute. The executor in this case was the donee of a trust power which was distinct from the office of executor, and the trust might exist for years after the duties of the office of executor had been fully performed. This trust power has never been renounced, and conse- quently has not been transmitted to the administrator. This point has been very fully considered in Wills v. Cowper, 2 Ham. 124, and in Conklin v. Egerton, 21 Wend. 430." See post, 1797, note (h). " In the Year Book, 15 Hen. 7, 11, it is laid down for good law, ' that if a man has feoffees upon confidence, and makes a will that his executors shall alien his lands, then if the executors renounce adminis- tration of the goods, yet they may alien the lands, for the will of land is not a tes- tamentary matter.' " Wilde J. in Tainter V. Clark, 13 Met. 227. In the subsequent case of Clark v. Tainter, 7 Cush. 567, the above observations of Judge Wilde were carried into practical effect. In addition to the above facts it appeared that T. sub- sequently accepted the office of trustee under the will ; and it was held that he did not, by renouncing the office of execu- tor, lose the power to sell as trustee under the will, and that sales and conveyance so made by him, after his acceptance of the trust, were valid as against the testa- tor's residuary devisees and their heirs. See post, 1796, note (A); Shaw C. J. in Treadwell v. Cordis, 5 Gray, 359.] [287] 330 EXECUTOR'S REFUSAL, ETC. OF THE OFFICE. [PT. I. BK. III. tors, administrators, and assigns, and he dies, having appointed several executors, one of whom renounces, the others who act may well exercise the power, (n) An exeeu- jf a debtor makes his creditor and another his execu- tor who re- nounces tors, and the creditor neither intermeddles, nor proves his co-ex- the will, he may bring an action against the other execu- ecutor. , ^ •. tor. Qo) (n) Granville (Earl) v. M'Neile, 7 Hare, 345 ; Eawlinson ./. Shaw, 3 T. R. 557 ; 156; [Bunner w. Storm, 1 Sandf. 357]. [Hunter v. Hunter, 19 Barb. 631.] (o) Dorchester v. Webb, Sir W. Jones, *BOOK THE FOURTH. OF PROBATE. CHAPTER THE FIRST. OF THE NECESSITY OF OBTAINIKG PEOBATE IN THE COXIRT OF PROBATE, AND OF THE JURISDICTION AND AUTHORITY OP THAT COURT : AND THEREWITH OF THE "ACTS AND LIABILI- TIES OF AN EXECUTOR BEFORE PROBATE. SECTION I. The Will must he proved in the Prolate Court. It appears to have been a subject of much controversy, whether the probate of wills was originally a matter of exclusive The eccie- ecclesiastical jurisdiction, (a) But whatever may have court was been the case in earlier times, it is certain that, at the the only time of the passing of the court of probate act (stat. 20 ™Mch' Sie & 21 Vict. c. 77), the ecclesiastical court was the only ™"i']i'^f"* court in which the validity of wills of personalty, or of personalty any testamentary paper whatever relating to personalty, established could be established or disputed. (6) An exception to pated. this general rule was to be found in the case of certain courts baron that had had probate of wills time out of mind, and had always continued that usage, (c) (a) Bac. Abr. Exors, E. 1 ; Dyke v. (c) Bac. Abr. tit. Exors. E. 6; Swinb. Walford, f) Moore P. C. 434; S. C. 6 pt. 6, s. II, pi. 3. Such a prescription Notes of Gas. 309. existed in the manor of Mansfield and the (6) Fonblanq. Treat, on Eq. pt. 2, c. 1, manors of Cowley and Cavershara, in Ox- 9. 1, note (a) ; Bac. Abr. Exors. E. 1 ; fordshire, the courts of which the author post, pt. I. bk. V. ch. I. ; Gascoyne v. of Wentworth's Office of an Executor Chandler, 2 Cas. temp. Lee, 241. Seepos«, (supposed to be Mr. Justice Doddridge) pt. I. bk. IV. ch. III. § IX. as to the gen- says that he himself kept. P. 100, 14th eral question, of what instruments probate ed. ; Godolph. pt. 1, c. 20, s. 1. is necessary. [288] 332 OF THE PROBATE OF WILLS. [PT. I. BK. IV. * Eegularly, the court in which the testament of a deceased per- In which of son ought to have been proved was the court of the isUcaT'"''" ordinary of the place wherein the testator dwelt, i. e. ^"['^*^t generally speaking the bishop of the diocese, (d) be proved. Certain districts, however, are exempt from the juris- diction of the ordinary of the diocese in which they lie, and are called peculiars, because they have a peculiar and special ordinary of their own. (e) And there is one sort of peculiar, called a royal peculiar, which is exempt from the jurisdiction, not only of the diocesan, but of the archbishop also, and which anciently were immediately subordinate to the see of Rome. (/) Conse- quently, in all these districts such special ordinaries had respec- tively a power, even of common right, to grant probate of the testaments and administration of the goods of those who died within them leaving no bona notabilia out of their limits, (jg) But if the deceased, at the time of his death, had effects to such an amount as to be considered notable goods, usually called lona notabilia, (K) within some other diocese * or peculiar than that in (d) Godolph. pt. 1, t. 22, s. 2; 2 Inst. 653; 13 C. B. N. S. 820. It should be 398 ; Com. Dig. Administrator, B. 5 ; added, that simple contract debts made \jpost, 291, note (o^).] 6ona notoJfi'a where the (ieitor lived, where- (c) 2 Gibs. Cod. 973, note (5) ; Aughtie as specialty debts constituted hona nota- V. Aughtie, 1 Phillim. 201, note (a). lilia at the place where the specialty hap- (/) See Smith u. Smith, 3 Hagg. 768 ; pened to be at the time of the death of Easton v. Carter, .5 Exch. 8. By the stat. the testator. France v. Aubery, 2 Cas. 25 Hen. 8, e. 19, these were placed im- temp. Lee, 534. See Eernandes' Exors. mediately under the jurisdiction of the case, L. R. 5 Ch. App. 314. [Gray J. in crown. See Parham v. Templer, 3 Phil- Pinney v. McGregory, 102 Mass. 186, 193, lim. 246; Johnson w. Ley, Skinn. 589 ; 3 says: "To limit the power of granting Hagg'. 763. administration to cases in which the goods (jf) 1 Salk. 42, arguendo. are or the debtor resides in the common- (A) By the 93d of the canons of 1603, it_ wealth at the time of the death of the in- was established that 5Z. should be the sum testate would be to deny to the credit- or value of bona notabilia. These canons, ors and representatives of the deceased, though they do not bind the laity, propria whether citizens of this or of another state, vigare, were certainly prescriptions to the all remedy whenever goods are brought ecclesiastical courts. More v. More, 2 Atk. into this state, or a debtor takes up his 158 ; Middleton v. Crofts, 2 Atk. 653 ; residence here, after the death of the in- S. C. 2 Stra. 158. And there are many testate. The more liberal construction is provisions contained in them which are necessary to prevent a failure of justice." declaratory of the ancient usage and law See Dawes v. Boylston, 9 Mass. 337 ; of the church of England, which in that re- Wheelock v. Pierce, 6 Cush. 288 ; Picquet, Bpect, and by virtue of such ancient allow- appt. 5 Pick. 65 ; Emery v. Hildreth, 2 ance are binding on laymen. See, also. Gray, 228 ; Wells J. in Merrill v. New Eng- Marshal v. Bishop of Exeter, 7 C. B. N. S. land Ins. Co. 103 Mass. 247, 248. " Juris- [289] [290] CH. I. § I.] IN WHAT COURT IT MUST BE OBTAINED. 333 which he died, then the will must have been proved before the metropolitan of the province by way of special prerogative ; (i) whence the courts where the validity of such wills were tried, and the offices where they were registered, were called the prerogative courts and the prerogative offices of Canterbury and York. The consequence was, that questions of no little difficulty often arose with respect to the inquiry, whether the will was to be proved in the diocesan or in the prerogative court. And great inconven- ience was also incurred where the deceased died possessed of goods in both the provinces of York and Canterbury. For it was held, that if there were bona notahilia in two dioceses of one province, and in two of the other, there must be two prerogative probates. (Jc) So if there were bona notahilia in one diocese only of the province of Canterbury, and in one of the province of York, each bishop must have granted probate ; (J) or if within one prov- ince the testator had bona notabilia in divers dioceses, and in the other but in one diocese, then in the one place the will must have been proved before the archbishop, and in the other place before the particular bishop, (m) But now by stat. 20 & 21 Vict. c. 77 (intituled An act to amend the law relating to probates and letters of administra- ^^ ^ ^^ tion in England'), after reciting that '-it is expedient Vict. c.7 that all jurisdiction in relation to the grant and revoca- tamentary diction, or the right of administration in (m) Wentw. Off. Kx. 110,111, 14th ed. ; respect to debts due a deceased person, [Bell J. in Taylor v. Barron, 35 N. H. never follows the residence of the creditor. 494.] And this has been considered to They are always iona notoiiVm, unless they apply equally to the province of an Irish happen to fall within the jurisdiction archbishop, with relation to either of the where he resided ; judgments are bona English ones, or e converse. 1 EoU. Abr. notabilia where the record is, specialties Exors. G. 1 ; Shaw v. Storton, 1 i'leem. where they are at the time of the creditor's 102 ; Huthwaite v. Phaire, 1 Sc. N. C. 43 ; decease, and simple contracts where the S. C. 1 M. & Gr. 159. [When a case is debtor resides.'' Vaughan v. Barrett, 5 within the jurisdiction of the probate court Vt. 333, 337 ; Lord Abinger C. B. in At- in two or more counties in Massachusetts, torney General u. Bouwens, 4 M. & W. the court which first takes cognizance 191, 192 ; Bell J. in Taylor v. Barron, 35 thereof by the commencement of proceed- N. H. 494 ; Thompson v. Gilman, 2 N. H. ings, shall retain the same ; and adminis- 291,292; Emery u. Hildreth, 2 Gray, 228, tration first granted shall extend to all 230, 231.] the estate of the deceased in the state, (i) 4 Inst. 335. and exclude the jurisdiction of the pro- (k) Gibs. Cod. vol. 1, p. 472, note (w) ; bate court of every other coonty. Genl. Burston u. Eidley, 1 Salk. 39 ; Twyford v. Sta. c. 117, § 3. See [People v. White, 11 Treal, 7 Sim. 102. 111. 341.] (/) Burston v. Eidley, 1 Salk. 39. 334 OF THE PROBATE OF WILLS. [ft. I. BK. IV. and other tion of probates of wills and letters of administration in tions of * England should be exercised in the name of her maj- cai and ' esty in one court," it is enacted by sect. 3, that " the vol- courts untary and contentious jurisdiction and authority of all abolished, ecclesiastical, royal peculiar, peculiar, manorial, and other courts and persons in England, now having jurisdiction or author- ity to grant or revoke probate of wills or letters of administration of the effects of deceased persons, shall, in respect of such matters, absolutely cease ; and no jurisdiction or authority in relation to any matters or causes testamentary, or to any matter arising out of or connected with the grant or revocation of probate or ad- ministration, shall belong to or be exercised by any such court or person." And- by sect. 4, " The voluntary and contentious jurisdiction S. 4. Tes- ^^^ authority in relation to the granting or revoking probate of wills and letters of administration of the ef- fects of deceased (w) persons now vested in or which can be exercised by any court or person in England, to- gether with full authority to hear and determine all ques- tions relating to matters and causes testamentary, (o) shall belong to and be vested in her majesty, and shall, except as hereinafter is mentioned, be exercised in the name of her maj- esty in a court to be called the court of probate, and to hold its ordinary sittings, and to have its principal registry at such place or places in London and Middlesex as her majesty in council shall from time to time appoint." (o^) tamentary jurisdiction to be exer- cised in the queen's name by a court of probate. (n) By the interpretation clause, sect. 2, " ' Will ' shall comprehend ' testament,' and all other testamentary instruments of which probate may now be granted, and ' administration' shall comprehend all let- ters of administrq,tion of the effects of de- ceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes." (o) By the interpretation clause, sect. 2, "'Matters and causes testamentary' shall comprehend all matters and causes relating to the grant and revocation of probate of wills or of administration." (o^) [In Massachusetts, the probate court for each county has jurisdiction of the probate of wills, granting adminiatra- [291] tion of the estates of persons who at the time of their decease were inhabitants of or residents in the county, and of all persons who die without the state leaving estate to be administered within such county. Genl. Sts. c. 117, § 2. And the rule is very gen- eral in the American States that letters testamentary or of administration shall be granted in the county where the testator or intestate resided at the time of his death. Holyoke v. Haskins, 5 Pick. 20 ; Stevens V. Gaylord, 11 Mass. 256 ; Cutts v. Has- kins, 9 Mass. 543; Wilson u. Frazier, 2 Humph. 30; Johnson v. Corpenning, 6 Ired. (Law) 216; Collins v. Turner, 2 Tayl. (N. Car.) 105 ; M'Bain v. Wimbish, 27 Geo. 259 ; McCampbell v. Gilbert, 4 CH. I. § I.] IN WHAT COURT IT MUST BE OBTAINED. 335 And by sect. 23, " The court of probate shall be a court of rec- ord, (o2) and such court shall have the same powers, s. 23. The and its grants and orders shall have the same effect have'" throughout all England, and in relation to the personal o^t^i!''" estate in all * parts of England of deceased persons, as England the prerogative court of the archbishop of Canterbury powers as and its grants and orders respectively now have in the gaH?e^™' province of Canterbury, or in the parts of such province "„ "he'''"" within its jurisdiction, and in relation to those matters ^^"4"°^ °* and causes testamentary, and those effects of deceased """^y- persons which are within the jurisdiction of the said prerogative court ; and all duties which by statute or otherwise are imposed on or should be performed by ordinaries generally, or on or by the said prerogative court, in respect of probates, administrations, or matters or causes testamentary within their respective jurisdic- tions, shall be performed by the court of probate ; provided that no suits for legacies, or suits for the distribution of residue, shall be entertained by the court or by any court or person whose juris- J. J. Marsh. 592 ; Estate of Harlan, 24 Cal. 182; George v. Watson, 19 Texas, 354 ; McChord v. Fisher, 18 B. Mon. 193 ; Cocke V. Finley, 29 Miss. 127. But if a debtor, who owes the estate of a person deceased in another state, resides in or re- moves into the state of New Hampshire, such indebtedness under the statute of New Hampshire, constitutes property in that state, which will justify the appointment of an administrator of said estate in the county where the debtor resides. Stearns o. Wright,51N. H.600, 611. The"proper county " for obtaining administration in cases of non-residents dying and leaving lands in a particular state, is the county where such lands, or a part of them, lie. Bowles V. Rouse, 8 111. 409 ; Spraybury v. . Culberson, 32 Geo. 299; Kutherford v. Clark, 4 Bush (Ky.), 47. Where a will had been properly admitted to probate in one county, and an administrator had been there appointed and he died before the es- tate was fully settled, and a new adminis- trator had been appointed by the probate court of another county, it was held that this last appointment was void, because the court had no jurisdiction, and the court in which the will was first admitted to probate had acquired full jurisdiction by that act, and could not be ousted until the estate had been fully administered. People V. White, 11 111. 341; ante, 290, note (m). The appointment of an admin- istrator in a jurisdiction where the de- ceased never resided, and in which he owned no property at the time of his death has been held to be absolutely void. Mil- tenberger v. Knox, 21 La. Ann. 399. In Pinney v, McGregory, 102 Mass. 189, Gray J. said : " We are not aware that any par- ticular amount of property has ever been held requisite to sustain a grant of origi- nal administration in Massachusetts.'' No assets within the state are necessary in Ala- bama to original administration upon the estate of one domiciled there. Watson v. Collins, 37 Ala. 587 ; S. C. 1 Ala. Sel. Cas. 515. See post, 430, note (A).] (o^) [Courts of probate are courts of record by statute in New Hampshire. Teb- bets V. Tilton, 24 N. H. 120, 124; Bell C. J. in Morgan v. Dodge, 44 N. H. 258.] [292] 336 OF THE PROBATE OF WILLS. [PT. I. BK. IV. diction as to matters and causes testamentary is hereby abol- ished." (o3) (oS) [In "Wood V. Stone, 39 N. H. 574, Fowler J. said ; " Courts of probate are of limited and special jurisdiction, restricted, unless enlarged by statute, to the probate of wills, the administration and settlement of estates, and the distribution thereof among the heirs and legatees, and other like administrative and ministerial acts. They have no juries, and the proceedings in them are not according to the course of the common law. Originally their powers were almost entirely administrative and ministerial." Yet these courts, having been made by statute courts of record, are to be regarded as courts of general juris- diction on the subjects to which they re- late, and are entitled to all the presump- tions in favor of their proceedings which are allowed in the case of other tribunals of general jurisdiction. Their judgments, where they have jurisdiction, are conclu- sive. They may be reexamined on appeal, but cannot be impeached collaterally, ex- cept for fraud and want of jurisdiction in the court. Sargent J. in Stearns v. Wright, 51 N. H. 609, and cases cited ; Tebbets v. Tilton, 24 N. H. 120 ; Morgan v. Dodge, 44 N. H. 255, 257, 258. In this last case. Bell C. J. said : " In this state, courts of probate exercise many powers solely by virtue of the provisions of our statutes ; but they have a very extensive jurisdiction not conferred by statute, but by a general reference to the existing law of the land, that is, to that branch of the common law known and acted upon for ages, the pro- bate or ecclesiastical law. Kimball v. Fiske 39 N. H. 120." In Hayes v. Hayes, 48 N. H. 226, Perley C. J. said : " Where our statutes have not introduced a change, the ecclesiastical law may be resorted to as a safe guide for the interpretation of our probate laws. The substance of our system is borrowed from that law, and the methods and remedies in our courts of pro- bate, except where others are provided by statute, follow the general course of pro- cedure in the ecclesiastical courts. Une peculiarity in the jurisdiction of those courts is, that they have no direct process for enforcing their own decrees. Resort was necessarily had to the temporal courts for aid, to enforce the sentences of the eccle- siastical jurisdiction. In this respect our law has followed the examples of the Eng- lish, and has not, as a general rule, con- fided the execution of their own decrees to the courts of probate, but left them to be enforced by suits at law on the bonds re- quired to be given to secure performance of the orders and decrees of that court. The general policy of the law requires that security shall be given by bond, that par- ties who act under the authority of the probate court, and are held to account in that court, shall discharge their duties faithfully and obey the orders and decrees of the court, leaving the rights of parties interested to be enforced by action in other courts on the bonds required to be given in that court." See, post, 295. By statute in Massachusetts, if, upon an appeal from the probate of a will, it appears from the reasons of appeal that the sanity of the testator or the attestation of the witnesses in his presence is in controversy, the su- preme judicial court may, for the determi- nation thereof, direct a real or feigned issue to be tried by a jury in the same court, at the expense of the appellant if the issue is found against him. Gen. Sts. c. 92, § 20. So in New Hampshire, Rev. Sts. c. 170, § 14 ; Patrick v. Cowles, 45 N. H. 555. So in Maine, Rev. Sts. c. 63, § 26. But in Bradstreet v. Bradstreet, 64 Maine, 209, Appleton C. J. said : " Courts of probate are of special and limited jurisdiction. Their proceedings are not according to the course of the common law. They have no juries. Neither party, upon ap- peal, can claim as a matter of right, a trial by jury. The judge of the appellate court may form an issue when, in his judgment, any question of fact occurs proper for a trial by jury, and not other- wise. The issue is to be found and tried CH. I. § I.] THE COURT OF PROBATE. 337 Hence it appears that the exclusive jurisdiction in the Court of probate of wills and granting of administration, which substituted formerly belonged to the ecclesiastical courts, is now ecciesiasti- completely and universally throughout England trans- <=a!<=o"r's f erred to the newly created court of probate, (p) saiiy. The consequence of this exclusive jurisdiction is, that an ex- ecutor cannot assert or rely on his right in any other The execu- • 1 1- 111 -1 1 tor cannot court, without showing that he has previously estab- rely on his lished it in the court of probate (g) the usual proof of temporal which * is, the production of a copy of the will by which ^j"Jout he is appointed, certified under the seal of the court, the pro- ^^ ' auction of This is usually called the probate, or the letters testa- the probate mentary. (r) In other words, nothing but the probate dinary: at law, but as in equity, to inform the con- science of the court, and under its direc- tion. Higbee u. Bacon, 11 Pick. 423; "Wood u. Stone, 39 N. H. 575 ; Patrick o. Cowles, 45 N. H. 553." See Eoderigas v. East River Savings Institution, 15 Am. Law Reg. (N. S.) 205.] [p) By sect. 23, all suits pending at the time of the act, in any court in England, respecting any grant of probate or admin- istration shall be transferred to the court of probate (but this enactment is not to apply to the privy council). And by stat. 21 & 22 Vict. c. 95, s. 14, in the same way all non-contentious business also shall be deemed to have been transferred to the court of probate, and all oaths and bonds sworn and executed as required by any ecclesiastical court in reference to such business, prior to January 11, 1858 (the day when the court of probate act, 1857, came into operation) shall be as effectual as if sworn or executed in pursuance of the court of probate act or this act. [A judge of probate, who has written a will, is, in New Hampshire, disqualified to sit upon the probate of it, but, upon appeal, the will may be proved in the court above. Moses V. Julian, 45 N. H. 52. The will written by the judge of probate, and executed under his direction, though in violation of law, is not void. Moses v. Julian, supra; Stearns v. Wright, 51 N. VOL. I. 22 H. 600. As to disqualification of a judge of probate on the ground of interest, re- lationship, or afiinity, see Moses v, Julian, 45 N. H. 52 ; Hull v. Thayer, 105 Mass. 219 ; Gay v. Minot, 3 Cush. 352 ; Bacon, appellant, 7 Gray, 391 ; Sigourney v. Sib- ley, 21 Pick. 101 ; Aldrich, appellant, 110 Mass. 189; Stearns v. Wright, 51 N. H. 600 ; post, 587, note (e) ; Cottle, appel- lant, 5 Pick. 483 ; Coffin v. Cottle, 9 Pick. 287. As to the difference between the ef- fect of interest as a disqualification of a judge of probate, and relationship, see Wells J. in Aldrich, appellant, 110 Mass. 193, 194.] (y) Hensloe's case, 9 Co. 38 a; Wentw. Off'. Ex. 83, 14th ed.; Treat, on Eq. bk. 4, pt. 2, u. 1, s. 2; Chaunter v. Chaunter, 11 Vin. Abr. 205 ; [Tappan v. Tappan, 30 N. H. 50; Willard v. Hammond, 21 N. H. 385; Strong u. Perkins, 3 N. H. 517, 518; Kittredge v. Folsom, 8 N. H. HI ; Lord Romilly M. R., L. R. 6 Eq. 222 ; Kinne- brew V. Kinnebrew, 35 Ala. 628.] (r) The "letters testamentary" incor- porate by necessary and express reference the will annexed. Therefore, when oyer was craved of the letters testamentary, the plaintiff' was bound to give a copy as well of the will as of the certificate of the or- dinary. Daly V. Mahon, 4 Bing. N. C. 235. [The trust confided to an execu- tor is defined by his letters testamentary, [298] 338 OF THE PROBATE OF WILLS. [PT. L BK. IV. (or letters of administration with the will annexed, when no executor is therein appointed, or the appointment of executor fails), or other proof tantamount thereto of the admission of the will in the court of probate is legal evidence of the will in any question respecting personalty, (s) The will of a deceased sov- ereign of the realm is no exception to this rule, notwithstanding (as it has already appeared (i)) no probate of such a will can be granted by the court of probate, (u) buthede- The probate is, however, merely operative as the title from authenticated evidence, (m^) and not at all as the foun- and^'ot dation of the executor's title ; (m^) for he derives all his bate^"" interest from the will itself, (m^) and the property of which constitute the commission under which he acts. Gibbons v. Kiley, 7 Gill, 81.] (s) Eex V. Netherseal, 4 T. E. 260 ; New- ton V. Metropolitan Railway, 1 Dr. & Sm. 583. [It is expressly provided by statute in Massachusetts that no will shall be effectual to pass real or personal estate, unless it has been duly proved and allowed in the probate court ; and the probate of a will devising real estate shall be conclu- sive as to its due execution, in lilie man- ner as of a will of personal estate. Genl. Sts. c. 92, § 38. The same law prevails in many other states. See Swazey v. Blackman, 8 Ohio, 5 ; Bailey v. Bailey, 8 Ohio, 245 ; Hall v. Ashby, 9 Ohio, 95 ; Wilson V. Ta,ppan, 6 Ohio, 172; Budd v. Brooke, 3 Gill, 198 ; Moore v. Greene, 2 Curtis, 202 ; Wilkinson v. Leiand, 2 Pe- ters, 655 ; Ratcliff v. Eatcliif, 12 Sm. & M. 134 ; Dublin v. Chadbourn, 16 Mass. 433; Shumway v. Holbrook, 1 Pick. 114; Spring V. Parkman, 3 Fairf. 127 ; Hutch- ins V. State Bank, 12 Met. 421 ; Fuller, ex parte, 2 Story, 327, 332 ; Fortune v. Buck, 23 Conn. 1.] If a will be made in a foreign country, and proved there, dis- posing of goods in England, the executor cannot have action on such probate, but ought to prove the will here. Lee v. Moore, Palm. 165 ; Tourton i». Flower, 3 P. Wms. 370. Sec post, pt. i. bk. iv. ch. III. § VI. p. 362; [1929, note (6); Leonard v. Putnam, 51 N. H. 247, 250, 251 ; Lord Eomilly M. E. in Hood v. Lord Barrington, L. E. 6 Eq. 218, 222.] (t) Ante, 14. («) Ryves i;. Duke of Wellington, 9 Beav. 579. («') [See Succession of Vogel, 20 La. Ann. 81 . The probate ascertains nothing but the original validity of the will as such, and that the instrument, in fact, is what it purports on its face to be. Fuller, ex parte, 2 Story, 332.] («^) [In Hood V. Lord Barrington, L. E. 6 Eq. 218, 224, where it was claimed that " it is not the probate which gives the power, but the will which gives the power," Lord Eomilly M. R. said : " I dissent from the proposition stated in that form. What the will does is, it gives the power to ob- tain the probate ; but when once the pro- bate is obtained, the probate confers the power and the title on the executors to dispose of the property as they think fit." See Gay v. Minot, 3 Gush. 352 ; Wood v. Nelson, 9 B. Mon. 600.] (u') [Eastman J. in Willard v. Ham- mond, 21 N. H. 385; Allen J. in Hart- nett V. Wandell, 60 N. Y. 349, 350. But an executor derives his power to sue, not from the will, but from the letters testa- mentary, and consequently can sue only in courts to which the power of those let- ters extends. Dixon ». Ramsay, 3 Cranch, 319 ; post, 361.] CH. 1. § I.] THE COURT OP PROBATE. 339 the deceased vests in him from the moment of the tes- elation of tator's death, (x) Hence the probate, when produced, to^the°tes- is said to have relation to the time of the testator's a^eath! death. («/) * It should further be observed that a court of equity considers an executor as trustee for the legatees in respect to their courts of legacies, and, in certain cases, as trustee for the next of couJuoT kin of the undisposed-of surplus ; («/i) and as all trusts ^onstruo- are the peculiar objects of equitable cognizance, courts wills: of equity will compel the executor to perform these his testa- mentary trusts with propriety, (y^) Hence, although in those courts, as well as in courts of law, the seal of the court of probate is conclusive evidence of the factum of a will, (z) an equitable jurisdiction has arisen of construing the will, in order to enforce a proper performance of the trusts of the executor. The courts of equity are consequently sometimes called courts of construction, in contradistinction to the court of probate, (z^) It should be observed, that as long as the ecclesiastical courts (x) Hensloe's case, 9 Co. 38 a; Grays- brook V. Fox, Plowd. 281 ; Comber's case, 1 P. Wms. 767 ; Smith v. Milles, 1 T. R. 480 ; WooUey v. Clark, 5 B. & Aid. 744 ; S. C. 1 Dowl. & Byl. 409 ; Treat, on Eq. bk. 4, pt. 2, c. 1, s. 2 ; [WUsou v. Wilson, 54 Missou. 213.] (y) Graysbrook v. Fox, Plowd. 281 ; Wentw. Off. Ex. 115, 14th ed. ; White- head V. Taylor, 10 Ad. & El. 210; Ingle v. Richards, 28 Beav. 366 ; [Fuller, ex parte, 2 Story, 327 ; Strong v. Perkins, 3 N. H. 517, 518 ; Fleeger v. Poole, 2 McLean, 189 ; Hill V. Tucker, 13 How. (U. S.) 458, 466 ; Hall V. Ashby, 9 Ohio, 96 ; Spring v. Park- man, 3 Fairf. 127. So upon the probate of the will (in which no executor is named) and the appointment of an administrator with the will annexed, the personal prop- erty vests in him by relation from the death of the testator. Gray J. in Drury V. Natick, 10 Allen, 174.] (yi) [This is so held in all cases in the United States. 2 Story Eq. Jur. § 1208 ; Hays V. Jackson, 6 Mass. 153 ; Hill v. Hill, 2 Hayw. 298 ; Wilson v. Wilson, 3 Binn. 557.] (y^) [A will contained the following pro- vision . " Should any questions arise as to the meaning of this instrument, I direct that the distribution of my estate shall be made to such persons and associations as my executors shall determine to be my intended legatees and devisees, and their construction of my will shall be binding on all parties interested." Three execu- tors were named, one of whom was inter- ested as a legatee and another was a near relative of one of the legatees. It was held, 1st. That the provision in question was a qualification of all the legacies and devises, which the testator had full power to make. 2d. That the executors had full power to act in the matter, and that their interest and relationship did not affect their power. 3d. That if their power was abused, a court of equity would restrain them. 4th. That the executor directly in- terested might properly decline to act upon any matter affecting his interest. Wait v. Huntington, 40 Conn. 9.] (z) See post, pt. I. bk. vi. ch. i. (zi) [See Hayes v. Hayes, 48 N. H. 219, 229, 230.] [294] 340 OF THE PKOBATE OF WILLS. [PT. I. BK. IV. had the exclusive testamentary jurisdiction, they were also courts and so were of construction as well as courts of probate ; because astiraf'^^'' ®"^*^ ^°^ legacies might have been brought therein. In- courts: deed, the cognizance of legacies in former times belonged exclusively to the ecclesiastical jurisdiction ; for the court of chan- cery, till Lord Nottingham extended the system of equitable juris- prudence, administered no relief to legatees, (a) But the new court of probate is not a court of construction ; (a^) for, as it has but the already appeared, (6) the 23d section of the act by which olVobate ^^ "^^^ created expressly prohibits it from entertaining is not. a,ny such suit. By section 24, " The court of probate may require the attend- 21 & 22 ^^'^^ °f ^'^y P^'^y i'^ person, or of aiiy person whom it ^24 p ^^' ™^y ^'^^''^^ fit *° examine or caused to be examined, in any er of court suit or other proceeding in respect of matters or causes of probate , . . , to examine testamentary, and may examine or cause to be examined, ■witnesses. .i jc j,- i_i • j.* upon oath or amrmation, as the case may require, parties and witnesses by word of mouth ; and may either before or after, or with or without such examination, cause them or any of * them to be examined on interrogatories, or receive their or any of their afiBdavits or solemn affirmations, as the case may be ; and the As to pro- court may by writs require such attendance, and order deeds, &c. to be produced before itself or otherwise any deeds, ev- idences, or writings, in the same form, or nearly as may be, as that in which a writ of subpoena ad testifieandum, or of sub- pmna duces tecum, is now issued by any of her majesty's supe- rior courts of law at Westminster and every person disobeying any such writ shall be considered as in contempt of the court, and also be liable to forfeit a sum not exceeding one hundred pounds." By section 25, " The court of probate shall have the like Sect. 25. powers, jurisdiction, and authority, for enforcing the at- thTcourt tendance of persons required by it as aforesaid ; and orders"^"^ for punishing persons failing, neglecting, or refusing to (a) Deeks v. Strutt, 5 T. E. 692. bate court was called upon to settle the (oi) [See Hayes v. Hayes, 48 N. H. 219, construction of the will, determine the 229, 230. In this case the question was rights of the parties, and enforce the ex- upon the construction of a will which ecution of the trust. It was held that created a trust, and related to the con- these questions properly belonged to the flicting claims of different parties to the general jurisdiction in equity.] beneficial interest in the fund. The pro- (6) Ante, 291, 292. [295] CH. I. § I.J POWERS, ETC. OF THE COURT OF PROBATE. 341 produce deeds, evidences, or writings, or refusing to appear or to be sworn, or make affirmation or declaration, or to give ev- idence, or guilty of contempt, and generally for enforcing all orders, decrees, and judgments, made or given by the court under this act, and otherwise in relation to the matters to be inquired into and done by or under the orders of the court under this act, as are by law vested in the high court of chancery for such purposes in relation to any suit or matter depending in such court." (c) By Stat. 21 & 22 Vict. c. 95, s. 17, " The judge of the f^^f^^ court of probate shall have and exercise the same power s. ir. of altering and amending grants of probate and letters the court of of administration, made before January 11, 1858, (t^) as may* * any ecclesiastical court had and exercised in respect of -^^'^f such grants." ^^^\ ^^ =• fore Jan. In order to meet the case of grants made before the u. 1858. act, which were void or voidable by reason of there being Cases of bona * notabilia, (e) and also of grants which, though not orToidlbie void or voidable, were not sufficiently extensive by rea- of j^^"" son of not reaching property situate out of the jurisdic- »"*«*>'»<» o r r J J ^ made be- tion of the court that made the grant, the following fore the 1 1 ■ 1-1 ,. , probate enactments have been inserted m the court of pirobate act. act, 1857, 20 & 21 Vict. c. 77. By section 86, " All grants of probates and administrations made before the commencement of this act, which may 20 & 21 be void or voidable by reason only that the courts from ^'^^- "• '^'^' which respectively the same were obtained had not juris- Void and diction to make such grants, shall be as valid as if the probates same had been obtained from courts entitled to make ministra- such grants : provided that any such grants of probate *'°"'' or administration shall not be made valid by this act, when the (c) [See, ante, 292, note (oi).] This sec- tion does not constitute an order of the probate court for payment of money a charge on land, within the stat. 1 & 2 Vict. c. 110, 8. 13. Pratt v. Bull, 1 Be G., J. & S. 141 ; S. C. 4 Giff. 117. [Judges of the probate courts in Massachusetts may keep order in court, and punish any contempt of authority in like manner as such contempt might be punished in the superior court. Genl. Sts. c. 117, § 33. When costs are awarded to be paid by one party to the other, the probate courts may issue execution therefor in like man- ner as is practised in the courts of com- mon law. Genl. Sts. c. 92, § 18 ; c. 117, § 26.] {d} The day. when the court of pro- bate act, 1857, came into operation. [See Waters v. Stickney, 12 Allen, 1 ; Rich- ardson V. Hazel ton, 101 Mass. 108, 109.] (e) See ante, 289. [296] 342 OF THE PROBATE OF WILLS. [PT. I. BK. IV. same shall before the commencement of this act have been revoked or determined by any court of competent jurisdiction to have been void J nor shall this act prejudice or affect any proceedings pend- ing at the time of the passing of this act in -which the validity of any such probate or administration shall be in question. If the result of such proceeding shall be to invalidate the same, such probate or administration shall not be rendered valid by this act ; and if such proceedings abate or become defective by reason of the death of any party, any person who but for this act would have any right by reason of the invalidity of such probate or administration shall retain such right, and may commence pro- ceedings for enforcing the same within six calendar months after the death of such party." And by sect. 87, " Legal grants of probate and administration S. 87. Pro- ''^'^^^ before the commencement of this act, and grants adminT- °^ probate and administration made legal by this act, trations shall have the same force and effect as if they had been granted , . before this granted under this act ; but m every such case there into opera- shall be due and payable to her majesty such further *"'°' stamp duty, if any, as would have been chargeable on any probate or administration * which, but for this act, would or ought to have been obtained in respect of the personal estate not covered by the grant ; and all inventories and accounts in respect thereof shall be returnable to the court of chancery, and all bonds taken in respect thereof may be enforced by or under the authority of the court of chancery, at the discretion of the court." (/) And by sect. 88, " Provided, that where any probate or admin- S. 88. Pro- istration has been granted before the commencement of bate or ad- ,,. , i.i_i ministra- this act, and the deceased had personal estate in ^ng- b'e'granfed land, not within the limits of the jurisdiction of the eltatTnot*' '^°^^^ ^^ "^^^<^^ t^e probate or administration was granted, (/) The 86th section having provided of probate, on payment of the stamp duty for cases where the probate was void or which would have been payable on the voidable on the ground of error as to bond additional grant, which would have been notabilia, the 87th section applies to the requisite but for the act. See In the case where the grant was legal or made Goods of Freckelton, 1 Sw. & Tr. 16 ; In legal by the act, but docs not affect the the Goods of Tuckur, 2 Sw. & Tr. 122. whole property. And the effect of the See, also, In the Goods of Elwell, 1 Sw. latter section is to give the grant the same & Tr. 27 ; Bouverie v. Maxwell L. R. 1 force and effect as if granted by the court P. & D. 272. [297] CH. I. § I.] IN THE COUNTY COUETS. 343 or otherwise not within the operation of the grant, it affected by shall be lawful for the court of probate to grant pro- grants. bate or administration only in respect of such personal estate not covered by any former probate or administration, and such grant may be limited accordingly." (^) By stat. 21 & 22 Vict. c. 95, s. 20, " All second and subsequent grants of probate or letters of administration shall be ^^ . 22 made in the principal registry, or in the district registry "^'ct. c. 95, where the original will is registered or the original grant Second and of letters of administration has been made, or in the grants to district registry to which the original will or a registered where'tha * copy thereof, or the record of the original grant of ad- ^j,f °^' ministration, have been transmitted by virtue of a requi- theorig- infill Ifittfirs sition issued in pursuance of section eighty-nine of ' The of admin- Court of Probate Act,' and for and in respect of such are depos- second or subsequent grants of probate or letters of ad- ''^ " ministration to be made in a district registry, it shall not be requisite that it should appear by affidavit that the testator or intestate had a fixed place of abode within the district in which the application is made." By the court of probate act, 1857, 20 & 21 Vict. c. 77, s. 54, " Where it shall appear by affidavit of the person, or some 20 & 21 ■« ■ Vict c 7T one of the persons applying for probate or letters of ad- s. 54 (now' ministration, that the testator or intestate had at the j^.^sc[^c-' time of his death his fixed place of abode in one of the *'"" °* ^ county districts specified in schedule (A) to this act, and that courts. the personal estate in respect of which such probate or letters of administration should be granted under this act, exclusive of what the deceased shall have been possessed of or entitled to as a trus- tee and not beneficially, but without deducting anything on account of the debts due and owing from the deceased, is under the value of 200Z., and that the deceased at the time of his death was not seised or entitled beneficially of or to any real estate, or that the value of the real estate. of or to which he was seised or entitled beneficially at the time of his death was under the value of 300Z., (jr) This section appears to be intended operative by section 87. In the Goods of to meet the case of a grant which is ex- Tucker, 2 Sw. & Tr. 123 ; In the Goods pressly limited to property within the of Cooper, 1 Sw. & Tr. 66. See, also, In jurisdiction of the court which grants it, the Goods of Blwell, 1 Sw. & Tr. 27. and which, therefore, cannot be made [298] 344 OF THE PROBATE OF WILLS. [PT. I. BK. IV. the judge of the county court having jurisdiction in the place in which it shall be sworn that the deceased had at the time of his death his fixed place of abode, shall have the contentious jurisdic- tion and authority of the court of probate in respect of questions as to the grant and revocation of probate or letters of administra- tion of the effects of such deceased person, in case there be any contention in relation thereto." This section is repealed by stat. 21 & 22 Vict. c. 98, s. 11 ; see post, 301. By section 55, " On a decree being made by a judge of a county Sect. 55. court for the grant or revocation of a probate or admin- S^couSv istration in any such cause, the registrar of the * county court to court shall transmit to the district registrar of the dis- transmit .... certificate trict in which it shall have been sworn that the deceased OI Q6CF66 for grant had at the time of his decease his fixed place of abode a tion^rfpro- Certificate under the seal of the county court of such ^^*^' decree having been made ; and thereupon, on the appli- cation of the party or parties in favor of whom such decree shall have been made, a probate or administration in compliance with such decree shall be issued from such district registry ; or, as the case may require, the probate or letters of administration there- tofore granted shall be recalled or varied by the district registrar according to the effect of such decree." By section 56, " The judge of any county court before whom Sect. 56. ^°y disputed question shall be raised relating to matters JnVe"^^* and causes testamentary under this act shall, subject to county the rules and orders under this act, have all the iuris- coart to , . . IT- T . 1 1 decide diction, power, and authority to decide the same and en- enforce"" foi'ce judgment therein, and to enforce orders in relation i° If^thCT thereto, as if the same had been an ordinary action in cases. the county court." By section 57, " The affidavit as to the place of abode and state iffidavkof °^ *^® property of a testator or intestate which is to give the facts contentious jurisdiction to the judge of a countv court giving tlie t , i . . . in county under the previous provisions shall, except as hereinafter jurisdiction provided, be conclusive for the purpose of authorizing dusWeTun- *^® exercise of such jurisdiction, and the grant or revo- ' n>ved cation of probate or administration in compliance with wiiiie the the decree of such judge ; and no such grant of probate pending. or administration shall be liable to be recalled, revoked, [299] CH. I. § I.] IN THE COUNTY COURTS. 345 or otherwise impeached, by reason that the testator or intestate had no fixed place of abode within the jurisdiction of such judge, or within any of the said districts at the time of his death, or by reason that the personal estate, sworn to be under the value of 2001. did in fact amount to or exceed that value, or that the value of the real estate of or to which the deceased was seised or entitled beneficially at the time of his death amounted to or exceeded 8001. ; provided that where it shall be shown to the judge of a county court before whom any matter is * pending under this act, that the place of abode or state of the property of the testator or intestate in respect of whose will or estate he may have been ap- plied to for grant or revocation of probate or administration has not been correctly stated in the afiidavit, and if correctly stated would not have authorized him to exercise such contentious juris- diction, he shall stay all further proceeding in his court in the matter, leaving any party to apply to the court of probate for such grant or revocation, and making such order as to the costs of the proceedings before him as he may think just." By section 59, " It shall not be obligatory on any person to ap- ply for probate or administration to any district registry, Sect. 59. or through any county court, but in every case such ap- torylo 'ap- plication may be made through the principal registry of ^ate*°'^o™ the court of probate, wherever the testator or intestate *" district . . 1 j^ registries may at the time of his death have had his fixed place of or county abode : provided, that where in any contentious matter application arising out of any such application it is shown to the ™ery"case court of probate that the state of the property and place ^q^™*^/ '" of abode of the deceased were such as to give conten- probate. tious jurisdiction to theljudge of a county court, the court of pro- bate may send the cause to such county court, and the judge thereof shall proceed therein as if such application and cause had been made to and arisen in his court in the first instance." (A) By section 60, " For regulating the procedure and practice of the county courts, and the judges, registrars, and officers Sect. 60. ...... n J • Rules and thereof, in relation to their jurisdiction and proceedings orders for under this act, rules and orders may be from time to J^f pro-"^ (A) See Slater v. Alrey, L. R. 2 P. & apply to an application for the revocation D. 154. By 21 & 22 Vict. c. 95, s. 12, of a grant of probate or administration, this section shall, so far as the county as well as to an application for such court or a judge thereof are concerned, grant. [300] 346 OF THE PROBATE OF WILLS. [PT. I. BK. IV. cedure of time framed, amended, and certified by the county court county ' ' J! 1 J courts iuderes appointed for the time being to frame rules and under the , „ ^ , . , ,■ <■ .^ j. i. act to be orders for regulating the practice ot the county courts Sf judges under the act of the session holden in the nineteenth and rnTautlTor- twentieth * years of her majesty, chapter one hundred ity for the and eight, and shall be subject to be allowed or disallowed pose. or altered, and shall be in force from the day named for that purpose by the lord chancellor, as in the said act is provided in relation to other rules and orders regulating the practice of the same courts ; and for establishing rules and orders to be in force when this act comes into operation, the power given by this enact- ment shall be exercised as soon as conveniently may be after the passing of this act." Stat. 21 & By stat. 21 & 22 Vict. c. 96, s. 11, section 54 of the l%7,T5i, ^*^*- 21 & 22 Vict. c. 77 (see ante, 298), is repealed, repealed. ' ^^^ ^y g^^t. 21 & 22 Vict. c. 95, s. 10, " Where it ap- Stat. 21 & pears by affidavit to the satisfaction of a registrar of the 22 Vict. ^ . . , . , , . ° . c. 95, s. 10. principal registry, that the testator or intestate, in respect sonaitj' is of whose estate a grant or revocation of a grant of probate county o"^ letters of administration is applied for, had at the court to time of his death his fixed place of abode in one of the nave dis- ^ tribution. districts specified in schedule (A) to the said ' Court of Probate Act,' and that the personal estate in respect of which such probate or letters of administration are to be or have been granted, exclusive of what the deceased may have been possessed of or en- titled to as a trustee, and not beneficially, but without deducting anything on account of the debts due and owing from the de- ceased, was at the time of his death under the value of 2001., and that the deceased at the time of his death was not seised or en- titled beneficially of or to any real estate of the value of 300Z. or upwards, the judge of the county court having jurisdiction in the place in which the deceased had at the time of his or her death a fixed place of abode shall have the contentious jurisdiction and authority of the court of probate in respect of questions as to the grant and revocation of probate of the will or letters of adminis- tration of the effects of such deceased person, in case there be any contention in relation thereto." By stat. 21 & 22 Vict. c. 95, s. 13, "the power and authority 21&22 to make rules and orders for regulating the proceedings s-Ta.*^ ' of the county courts shall extend and be applicable *to [301] [302] CH. I. § II.] OF ACTS OF AN EXECUTOR BEFORE PROBATE. 347 all proceedings in the county courts under this act, and Power to also to framing a scale of costs and charges to be paid and orders to counsel, proctors, solicitors, and attorneys, in respect sciies of of proceedings in county courts, under the said court of county ^^" probate act or this act." courts. By Stat. 20 & 21 Vict. c. 77 (court of probate act, 1857), sect. 68, " Any party who shall be dissatisfied with the g,^^ go & determination of the judge of the county court in point ^i Viet. of law, or upon the admission or rejection of any evidence to appeals in any matter or cause under this act, may appeal from county the same to the court of probate in such manner and court of subject to such regulations as may be provided by the P™''^'^- rules and orders to be made under this act, and the decision of the court of probate on such appeal shall be final." SECTION n. What the Executor may do before Probate. Upon the principles stated in the course of the preceding section (p. 293), it has been held that the executor, before he proves the will in the probate court, may do almost all the acts which are inci- dent to his office, except only some of those which relate to suits. (J) (i) Godolph. pt. 2, c. 20, s. 1 ; Wentw. Off. Ex. 81, Utli ed. ; Treat, on Eq. bk. 4, pt. 2, c. 1, s. 2 ; Wankford v. Wankford, I Salk. 301 ; Humphreys v. Ingledon, 1 P. Wms. 753 ; [Easton v. Carter, 5 Exch. 8; Venables v. East India Co, 2 Exch. 633 ; Mitchell v. Kice, 6 J. J. Marsh. 625 ; ante, 293, notes ; Kand v. Hubbard, 4 Met. 256, 257 ; Tappan v. Tappan, 30 N. H. 50 i post, 587, note (e) ; Strong v. Per- kins, 3 N. H. 517 ; Kittredge v. Folsom, 8 N. H. 110, 111; Shirley v. Healds, 34 N. H. 407, 411, 412 ; Lane v. Thompson, 43 N. H. 320. In Kittredge v. Folsom, above cited, Parker J. said: "It may well deserve consideration whether, under our statute, which provides that no person shall intermeddle with the estate of any person deceased, or act as the executor Or administrator thereof, or be considered as having that trust, until he shall have given bond to the judge of probate, an individual named executor can do any act as such until after the probate of the will. The bond is to he given to the judge upon the probate of the instru- ment." In Massachusetts and in most of the American States, there are statutes requiring that wills shall be proved, and that executors under them shall give bonds for the faithful discharge of their duties. In such states executors have no authority to act until they are appointed by the probate court and have given the bonds required. A refusal or neglect to give such bonds will be considered a re- fusal of the trust. Luscomb v. Ballard, 5 Gray, 403 ; Carter v. Carter, 10 B. Mon. 327 ; Mitchell v. Rice, 6 J. J. Marsh. 625 ; Kobertson v. Gaines, 2 Humph. 381 ; Mon- roe V. James, 4 Munf. 195; Johnson's Appeal, 9 Penn. St. 416 ; Simpson's Ap- 348 OF THE PEOBATE OF WILLS. [ft. I. BK. IV. Thus he may seize and take into his hands any of the testator's effects, (A) and he may enter peaceably into the house of the heir, for that purpose, and to take specialties and other securities for the debts due to the deceased. (Z) He may pay or take re- leases of debts owing to the estate ; (m) and he may receive or release debts which are owing to it ; (n) and distrain for rent due * to the testator, (o) And if before probate the day occur for payment upon bond made by or to the testator, payment must be made to or by the executor, though the will be not proved, upon like penalty as if it were. (^) So he may sell, give away, or otherwise dispose at his discretion of the goods and chattels of the testator, before probate; (g') he may assent to or pay lega- cies ; (r) he may enter on the testator's terms for years, (s) and he may gain a settlement by residing in the parish where the land lies. (0 peal, 9 Penn. St. 416 ; Miller v. Meetch, (n) Co. Litt. 292 b; Graysbrook v. Fox, 8 Penn. St. 417 ; Eoseboom v. Moshier, 2 Plowd. 281 ; Middleton's case, 5 Co. 28 a; Denio, 61 ; Hanson v. Worthington, 12 Godolph. pt. 2, c. 20, s. 1 ; Wentw. Off. Md. 418; Knight v. Loomis, 30 Maine, Ex. 81, 14th ed. ; Wankford w. Wankford, 208; Groton v. Euggles, 17 Maine, 137 ; Williams v. Gushing, 37 Maine, 370 ; Deering v. Adams, 34 Maine, 264 ; "Wood V. Sparks, 1 Dev. & Bat. 396; Trask v. Donaghne, 1 Aiken (Vt.), 373; Gaskill r. 1 Salk. 306, 307 ; Wills v. Rich, 2 Atk. 285. (o) Whitehead v. Taylor, 10 Ad. & El. 210. (p) Godolph. pt. 2, u. 2, B. 3 ;■ Wentw. Gaskill, 7 E. I. 478 ; Sawyer's Appeal, 16 Off. Ex. 18, 14th cd. The penalty is now N. H. 459 ; Mahony v. Hunter, 30 Ind. saved by bringing the principal and inter- 246 ; Hatch v. Proctor, 102 Mass. 351 ; est and costs into court, under stat. 4 Shaw C. J. in Eand v. Hubbard, 4 Met. Ann. c. 16, s. 13. 257 ; Martin v. Peck, 2 Yerger, 298 ; Gay (q) Godolph. pt. 2, c. 20, o. 3 ; Wentw. V. Minot, 3 Cush. 352 ; McKeen v. Frost, Off. Ex. 82, 14th ed. He may release or 46 Maine, 239, 248; Gardner v. Gantt, 19 assign any part of the personal estate be- Ala. 666 ; Echols v. Barrett, 6 Geo. 443 ; fore probate. By Lord Macclesfield, 1 P. Calloway v. Doe, 1 Blackf 372. In Mis- Wms. 768, Comber's case. It is conse- souri an executor has no authority until quently no objection to the title of an as- he has qualified, although, if he intermed- signee of a patent, that the assignors, the dies and subsequently qualifies, his letters executors of the grantee, had omitted to will relate back and cover hia former acts, register the probate until after the date of Stagg V. Green, 47 Miesou. 500. So in the assignment, Massachusetts, Hatch v. Proctor, 102 C. B. N. S. 754. Mass. 351.] (h) Godolph. pt. 2, c. 20, s. 1 ; Wentw. Off. Ex. 81, 14th ed.; [Killebrew v. Mur- phy, 3 Heisk. (Tenn.) 546.] Elwood V. Christy, 17 (r) Godolph. pt. 2, c. 20, s. 1 ; Wentw. Off. Ex. 82, 14th ed. (s) Rex V. Stone, 6 T. E. 298 ; Dyer, 367 a. And the executor of the grantee (/) Godolph. pt. 2, 0. 20, s. 3 ; Wentw. of the next avoidance of a church may Off. Ex. 81, 14th ed. (m) Godolph. pt. 2, t. 20, ». 3 ; Wentw. Off. Ex. 81, 14th ed. [303] grant the advowson before probate. Smithley v. Chomeley, Dyer, 135 a. {() 6 T. E. 295. CH. I. § II.] OF THE ACTS OF AN EXECUTOR BEFORE PROBATE. 349 And although he should die, after any of these acts done, -with- out proving the will, yet do these acts so done stand firm These acts and good, (m) Where a termor devised his term to thougrhf another vrhom he made his executor and died ; and pj.o^j,"""'' the devisee entered and died without any probate; it the will: was held that the term was legally vested in the executor by his entry, and an execution of the devise, without any probate, (a;) So if an executor assents to a legacy, and dies before probate, yet the assent is good enough, (y) So all payments made to him are good, and shall not be defeated, though he dies and * never proves the will. (2) In a word, the executor's not proving the will does, upon his death, determine the executorship, but not avoid it. (a) It must, however, be carefully observed in this place, that al- though an executor may, before probate, by assignment of a term for years, or other chattel of a testator, or by done by an an assent to a specific legacy, give a valid title to the before pro- assignee or legatee ; yet, if it be necessary to support reUed on that title by deducing it from the assignment or assent, gg^'lJ^^"'' it also becomes requisite to show the right to make been- . ° forced, a the assignment or give the assent; which can only be subsequent effected by producing the probate, or other evidence of must\e the admission of the will in the court of probate ; for, ^''°"°' as it has already appeared, the fact of a particular person having been appointed executor to another can be proved by no other means, either in courts of law or equity. (6) If , the executor died after the assignment or assent, without having obtained probate, letters of administration cum testamento annexo must be produced instead, (c) Again, although an executor can, before probate, make an assignment and give a receipt for purchase-money, which are (m) Wentw. Off. Ex. 82, 14th ed. ; Bra- when a debtor makes his creditor his ex- zier V. Hudson, 8 Sim. 67. ecutor, who dies after having intermed- ia;) Dyer, 367 a; Rex u. Stone, 6 T. died with his goods, but before probate and R. 298 ; Fenton v. Clegg, 9 Exch. 680. before any election made to retain, the (y) Anonymous, Freem. Chanc. Cas. executor of the executor may retain. See 28, pi. 22 6; Johnson v. Warwick, 17 Croft v. Pike, 3 P. Wms. 182, and post, C. B. 516. pt. III. bk. II. ch. II. § VI. (2) Wankford v. Wankford, 1 Salk. (6) See Pinney v. Pinney, 3 B. & C. 306, 307. 335 ; post, 307. [See Marcy a. Marcy, 6 (o) By Lord Holt, in Wankford v. Met. 360.] Wankford, 1 Salk. 309. Qucere, whether, (c) Johnson v. Warwick, 17 C. B. 516. [304] 350 OF THE PROBATE OF WILLS. [PT. I. BK. IV. binding, yet a purchaser is not bound to pay the purchase-money till probate, because, till the evidence of title exists, the executor cannot give a complete indemnity, (c?) An executor cannot maintain actions before probate unless such „ as are founded on his actual possession ; (c?^) for in actions maintain where he sues in his representative character, he may be before pro- compelled, by the course of pleading, to produce the let- ters testamentary at the trial, or in some cases, by an ap- plication * to the court, at an earlier stage of the cause ; (e) and in those actions where he sues in his individual capacity, relying on his constructive possession as executor, although he does not name himself as executor in his declaration, nor make any profert, yet, generally speaking, it will be necessary for him to prove himself executor at the trial, (/) which he can only do by showing the probate. For example, where an executor brings trespass de bonis asportatis, or trover, upon his testator's possession, and a conver- sion in his lifetime, he necessarily describes himself as executor in his declaration, and his character as such may be traversed. And where the goods were taken or converted after the testator's death, although, since the property in the goods draws to it a possession in law, he may declare on this constructive possession of his own, notwithstanding he has never had actual possession, without naming himself executor, still, if his title to the property should be put in issue by the pleadings, he must show that title as executor at the trial by producing the probate, in order to prove his constructive possession. (^) In cases, indeed, where the testator has actually been possessed except °^ ^^^ property which is the subject of the action, be- hM had* ^°^^ ^* came to the hands of the defendant, such posses- actual pes- sion is, according to the general principle, of itself, suffi- session: . . ° '■ , ,. , cient, without showing any title, to establish a primd facie case, either in replevin, trover, or trespass, when the prop- (d) Newton v. Metropolitan Railway (/) Blainficld v. March, 7 Mod. 141, by Company, 1 Dr. & Sm. 583. Holt C. J. ; S. C. 1 Salk. 285 ; Holt, 44 ; (rfi) [Tappau V. Tappan, 30 N. H. 50, 2 Saund. 47 s, note to Wilbraham c^. 69 ; Hutchins ti. State Bank, 12 Met. 423, Snow. 424; Pond v. Makepeace, 2 Met. 114; (?) Hunt «. Stevens, 3 Taunt. 113. And 2 Chitty PI. (16th Am. ed.) 120, and cases any defect in the probate, e. g. the want cited; Cocke v. Walter, 1 Eng. (Ark.) of a proper stamp, will be as fatal as the 404.] non-production. lb. (e) Webb v. Adkins, 14 C. B. 401. See post, pt. v. bk. I. ch. I. [306] CH, I. § II.] OF THE ACTS OP AN EXECUTOR BEFORE PROBATE. 351 erty has come to the defendant's hands, or been converted, by tort, (Ji) or in debt or assumpsit, when the defendant has acquired it by a contract with the executor, (f) In such case it is evident * that the actual possession of the plaintiff is a primd facie title, without reference to the circumstances under which such posses- sion has been obtained, whether as executor or by any other means. (A) Accordingly, in a modern case, (Z) a sheriff's officer had seized and sold a pony, claimed by the plaintiff, a widow, under an execution against a third party, who lodged with her. The action was brought against the officer, for money had and re- ceived, to recover the amount of the sale money. It appeared that the pony had been bought by the lodger for the plaintiff with money provided by her, but at that time, and for several months afterwards, her husband was alive. After his death, however, the plaintiff fed the pony, and paid bills for its hay and shoeing, though it was used as generally by the lodger as by her. No probate of will or letters of administration were produced. It was objected, that assuming even that the plaintiff might have maintained trespass for the taking of the pony, she could not maintain this action, which was founded on a contract ; and that the pony having been the property of the husband, passed on his death to his personal representative, and it had not been shown that the plaintiff was either executrix or administratrix. But it was held that there was evidence, though perhaps slight, that the plaintiff was in possession of the pony at the time it was seized ; and if so, eince she might clearly have maintained trespass against a wrong-doer, she might waive the tort, and * maintain this action to recover the money produced by the sale, (m) (A) Wentw. OS. Ex. 84, 14th ed. ; treatise, had it not been laid down in pre- Plowd. 281, in Grays brook w. Fox. See vious works on the same subject as an ab- Elliott V. Kemp, 7 M. & W. 306, 312, 314. solute proposition that an executor may (j) Wentw. Off. Ex. 84, 85, 14th ed. maintain actions of trespass or trover, be- • {k) On this principle in a late case, fore probate, for such of the effects of the where three out of four executors made a testator as never came to his actual posses- sale of the goods of their testator, it was sion, taken or converted after the testator's held that the three might sue without decease. See Toller, 47 ; 2 Roberts on naming themselves executors, and without Wills, 172, 173. joining the fourth executor; although the (I) Oughton v. Seppings, 1 B. & Ad. goods were sold as the goods of the testa- 241. tor. Brassington v. Ault, 2 Bing. 177. (m) See, also, accord. White u. MuUett, The distinction above pointed out might 6 Exch. 713, 715; and see, further, Wallor seem unnecessarily labored in the present v. Drakeford, 1 El. & Bl. 749. [306] [307] 352 OF THE PROBATE OF WILLS. [PT. I. BK. IV. And the law is the same with respect to the grantee of the ex- nor can his s^utor. Accordingly, in an action of trover for a horse grantee: and gig, which the plaintiff claimed as the vendee of an executor, it was held, that as at the time of the trial the ecclesias- tical court had not granted probate, and the executor had never had actual exclusive possession of the gig and horse, the plaintiff could not make out his title, though he produced the will appoint- ing his vendor executor, (n) In this case, the plaintiff and defend- ant both claimed title to the property ; and Lord Tenterden, in his address to the jury, observed, that if the plaintiff had proved a clear, undisputed possession, it might have been sufficient ; but it appeared that the defendant, before and after the sale to the plaintiff, used the gig and horse. But although an executor cannot maintain actions before pro- bate, except upon his actual possession, yet he may ad- commence vance in them as far as that step where the production before'pro- of the probate becomes necessary, and it will be sufficient bate: j£ j^g obtains the probate in time for that exigency, (o) Thus where he sues as executor, he may commence the action be- and arrest fore probate, (p) and arrest a debtor to the estate ; (g^) ant: for, as it has been before observed, the probate, although obtained after action brought, shall, when produced, have relation to the death of the testator, so as to perfect and consummate the will from that period, (r) So where a reversion of a term * comes (n) Pinney v. Pinney, 8 B. & C. 335. Ventr. 370 ; Skin. 87. And see Toller, (o) Wills V. Kich, 2 Atk. 285 ; Easton 471 ; Wentw. Off. Ex. note by Curson to V. Carter, 5 Exch. 8, 14. p. 84, Uth ed. But the case of Dun- {p) 1 Roll. Abr. 917, A. 2; Martin v. comb u. Walter is very obscurely reported ; Fuller, Comb. 871 ; Wankford v. Wank- and the point above stated is not neces- ford, 1 Salk. 302, 303. sarily involved in the decision of it, as re- (q) Admitted by Saunders C. J. in ported in Skinner, p. 88 (vrhere the word Dancomb v. Walker, Skin. 87. " not" seems omitted by an error of the (r) Plowden, 281; 1 Roll. Abr. 917^ press), and in Shower; nor is it easy to A. 2. But this relation, it has been said, comprehend on what ground the doctrine shall not prejudice a third person; and can rest. Lord Holt, in 1 Salk. 110, said therefore where a debtor, after being ar- he was not satisfied with the judgment; rested by an executor before probate, and but he probably referred to the relation of set at large on ball, paid a debt to J. S., the the bankruptcy merely. In this latter re- debtor was adjudged upon that principle, spect, however, Duncomb v. Walter has it is reported, not to be a bankrupt from been confirmed by the modern decisions, the time of the arrest, so as to invalidate See Rose v. Green, 1 Burr. 437 ; Barnard the payment. Duncomb v. Walter, 3 Lev. v. Palmer, 1 Campb. 509; Eden B. L. 36. 57 ; S. C. Skin. 22 ; T. Raym. 479 ; 2 [The doctrine that letters testamentary, Show. 253 ; 1 Freem. 539 ; S. C. in error ; when issued, relate back to the death of [308] CH. I. § II.J OF THE ACTS OF AN EXECUTOR BEFORE PROBATE. 353 to him, he may avow before probate for such rent as hath accrued after the death of the testator, (s) and if such an issue is {„ some joined that it becomes necessary for him to prove his '^'^^^^^^ title by executorship (as for instance, if non tenuit should <"• declare be pleaded), it will be sufScient if he obtains probate in bate: time to produce it in evidence at the trial. So in the cases above considered, where the executor brings an action without naming himself executor, on his constructive possession, he may declare before probate, and if his title to the property be put in issue by the pleadings, he may take probate at any time before the trial, and that will enable him to support the action, (t) So an executor, before probate, may file a bill in equity j^^ (in which bill, however, it is said he must allege that he ?'« * '=''1 ^ before pro- has proved the will), (m) and the subsequent probate bate: makes the * bill a good one, if obtained at any time be- fore hearing, (x) And a commission of bankrupt may be taken out by an executor before he has obtained pro- bate, (t/) and take out a com- mission of banlc- ruptcy : the testator, and legalize all intermediate acts of the executor, must be understood to cover those acts only which might have been done by him had he been executor at the time. Bellinger ti. Ford, 21 Barb. 311. | (s) Wankford w. Wankford, 1 Salk.307, per Holt C. J. ; Whitehead v. Taylor, 10 Ad. & El. 210. (t) It is said an executor may maintain a quare impedit, if he be entitled to the next presentation of a church, which be- came void, without showing forth the will. Wentw. OflF. Ex. 84, 14th ed. But if by the course of the pleadings it should be- come a part of his case to prove his title, he certainly can only do so by producing the probate; and it may be doubtful whether the passage above cited is, in any case, law, inasmuch as it should seem that executors must show their title in the dec- laration in quare impedit. (w) Humphreys v. Ingledon, 1 P. Wms. 753 ; but see contra, Newton v. Metropoli- tan Railway, 1 Dr. & Sm. 583 ; post, 309, note (x). (ar) Humphreys v. Humphreys, 3 P. Wms. 351. And in the case of Patten, executrix, v. Panton, in the exchequer, VOL. I. 23 1793, it was said, arguendo, that it had been determined by that court about three years ago, that it is sufficient if the pro- bate were obtained at any time before hearing. 3 Bac. Abr. 53, by Gwillim, Ex- ecutors, E. 14. But a plea that the exec- utor has not obtained probate was lately allowed, on the ground that the cause must be considered as having come on to be heard. Simons u. Milman, 2 Sim. 241. See, also, Jones n. Howells, 2 Hare, 353, per Wigram V. C. ; post, pt. v. bk. i. ch. 11. In Newton u. Metropolitan Rail- way Company, 1 Dr. & Sm. 583, a bill by executors for a specific performance al- leged, as the fact was, that the executors had not proved. Notice of motion for an injunction was given, and at that time when the motion, but for the press of business, would have been heard, there was no probate ; but when the motion was actually heard, the probate was in court; and it was held by Sir R. Kin- dersley V. C. that the defendants could not resist the motion upon the ground of demurrer. See, also, Beardmore v. Greg- ory, 34 L. J. Ch. 392. (y) Ex parte Paddy, 3 Madd. 241 ; S. C. [309] 354 OF THE PROBATE OF WILLS. [PT. I. BK. IV. On the other hand, if he have elected to administer, he may he may be also, before probate, be sued at law or in equity by the probate. deceased's creditors, whose rights shall not be impeded by his delay, and to whom, as executor de jure or de, facto, he has made himself responsible, (a) So a bill may be filed against an executor, before probate, by a residuary legatee, for an account of the estate and effects of the testator, and to have the assets se- cured, (a) So, before probate, an executor may be compelled to discover the personal estate of his testator, though a suit be pend- ing in the spiritual court respecting the validity of the will. (V) * If an executor dies before probate, although, as already men- If he die tioned, the acts which he may legally do before probate baterhis"' stand firm and good, yet his executor may not prove Bhailn'otbe ^^^ wills, and SO become executor to both the testa- the^firs""* to''^- (0 ^"it administration of the goods of the first testator. testator, with the will annexed to it, is to be committed to the executor of the executor if the first executor be residuary legatee of the first testator ; or to such other person as may be so appointed ; otherwise to the next of kin of the first testator. (.. bk. v. ch. iii. § i. (6) Dulwich College v. Johnson, 2 Vern. [310] CH. II. § I.] CITATION TO PRODUCE THE WILL. 355 * CHAPTER THE SECOND. OP THE MANNER OF OBTAINING PEOBATE, AND THE PEAOTIOE OF THE ECCLESIASTICAL COUET WITH EESPECT THEEETO. SECTION I. By whom the Will should he proved : and herewith of the Produc- tion and Deposit of Testamentary Papers. The person alone by whom the testament can be proved, is the executor named in it, (a) whom (as before stated) jj^^ ^^^ the court of probate may cite to the intent to prove the '?'' [""7 be testament, and take upon him the execution thereof, or prove by else to refuse the same. (5) This may the court do, not nary: only ex officio, but at the instance of any party having atthein- an interest, which interest is proved by the oath of the aiw mrty party, (c) But such party should, in prudence as well having an as fairness, communicate to the executor, previous to caus- (o) I Salk. 309. [The person whose The statute penalty for neglecting to ex- duty it would properly be to initiate meas- hibit a will is merely cumulative. Stebr nres for the proof of the will, is the exec- bins v. Lathrop, 4 Pick. 33, 42. See State utor named in it. But in the American v. Pace, 9 Eich. Law (S. Car.), 355. It States it is not exclusively his right, nor has been held that the devisees and leg- always the practice, for the executor to atees of a will may bind themselves to de- do so. In Texas an executor named in ? stroy it by parol agreement or in writing, will, by neglecting to prove it within thirty Phillips u. Phillips, 8 Watts, 195. See days, does not lose the right to be ap- Adams v. Adams, 22 Vt. 50.] As to the pointed executor, if he presents a valid form of the citation, see stat. 1 Edw. 6, excuse for his' neglect. Stone u. Brown, c. 2. 16 Texas, 425.1 (c) lb. Some think it may be done at (6) Swinb. pt. 6, s. 12, pi. 1 ; Godolph. the instance of such as have no interest, pt. 1, c. 20, s. 2 ; ante, 274. [This author- to the intent that thereby they may be ity in tlie judge of probate is incident to certified whether the testator left them a his general jurisdiction of the probate of legacy. Godolph. pt. 1, c. 20, s. 2. [In wills, and the power of granting adminis- Stebbins v. Lathrop, 4 Pick. 33, 42, Wilde trations. Stebbins v. Lathrop, 4 Pick. 42. J. said : " By our law, whoever has a [311] 356 • OF PROBATE. [PT- I. BK. IV. ing such a decree of citation to issue, the ground of such a proceed- ing; otherwise the former may have to pay the costs. Thus, in a modern case, where the testator was domiciled and died in Scotland, a creditor cited the executor, under the seal of the pre- rogative court of Canterbury, to accept or refuse probate, with the usual intimation. The executor, sub modo, denied the juris- diction of the court, by reason that the deceased, while living, and at the time of his death, had no goods, chattels, or credits, within the province of Canterbury, sufficient to * found the jurisdiction of the court, alleging that he was willing to take probate on being satisfied to the contrary. The creditor upon this was compelled to disclose assets within the province ; whereupon the executor retracted his qualified denial, and prayed probate ; which was granted to him, and the creditor was condemned in the costs, as incurred solely by reason of his undue suppression of the fact of there being assets. (d~) When the will is destroyed or concealed by the executor, (c?') if it be proved plainly, a legatee may go to a court of equity for a decree upon the head of spoliation and suppression ; although the general rule is to cite the executioner in the ecclesiastical court, (e) If the executor has not the will in his custody, but some other The holder person, then may such person be compelled to exhibit ■may be the Same. (/) And it is sufficient to prove that once xight to offer a will in evidence, or to other states, persons, other than the i-egis- make title under it, may insist on having ter of the probate court, having the cus- it proved. A creditor, therefore, of a dev- tody of wills, are required, within a cer- isee has this right for the purpose of tain time after the death of the testator, obtaining satisfaction of his debt; other- to deliver them into the probate court wise there might be a failure of justice." which has jurisdiction of the case, or to Any person interested in a will may have the executors named in the will ; and are it proved. Stone v. Hereford, 8 Blackf. made subject to imprisonment, and liabil- 452 ; Foster v. Foster, 7 Paige, 48 ; Matter ity for damages, in case of neglect so to of Greeley, 15 Abb. Pr. (N. S.) 393.] deliver, after being duly cited for that pur- Id) Lyon V. Balfour, 2 Add. 501. pose by the court. Genl. Sts. Mass. t. 92, ((/I) [As to the right of devisees and § 16. See Hill v. Davis, 4 Mass. 137 ; legatees to destroy a will, see ante, 311, Loring v. Oakey, 98 Mass. 267; Stebbins note (J) ; Adams v. Adams, 22 Vt. 50.] v. Lathrop, 4 Pick. 33 ; Smith v. Moore, (e) By Lord Hardwicke in Tucker v. 6 Greenl. 274. By statute 1875, c. 210, Phipps, 3 Atk. 360. persons named as executors in wills, and (/) Swinb. pt. 6, c. 12, pi. 2 ; Godolph. having custody thereof, arc required, with- pt. 1, c. 20, s. 2; Bethun u. Dinmure, 1 in thirty days after knowledge of the death Cas. temp. Lee, 1 58 ; [Stebbins v. Lathrop, of the testator, to deliver such wills into the 4 Pick 33, 42. In Massachusetts, and in probate court, under penalty for default. [311] CH. II. § I.] CITATION TO PKODUCE THE WILL. 357 he had it ; for he is presumed still to have the same, cited to unless he affirms upon his oath that it is not in his pes- into the /■ >. ecclesiasti- SeSSlOn. (^g) cal court. By the court of probate act, 1857, s. 26, " The court of probate may, on motion or petition, or otherwise in a summary 20&21 way, whether any suit or other proceeding shall or shall ^'1'- <=■ JJ' not be pending in the court with respect to any probate der to pro- or administration, order any person to produce and bring instrument into the principal or any district registry, or otherwise to"beTest£- as the court may direct, any paper or writing being or ™s°tary. purporting to be testamentary, which may be shown to be in the possession or under the control of such person ; and if it be not shown that any such paper or writing is in the possession or under the control of such person, but it shall appear that there are reasonable grounds for believing that he has the knowledge of any such paper or writing, the court may direct such person to attend for the purpose of being examined in open court, or upon interrogatories respecting the *same, and such person shall be bound to answer such questions or interrogatories, and if so ordered, to produce and bring in such paper or writing, and shall be sub- ject to the like process of contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit in the court, and had made such default ; and the costs of any such motion, petition, or other proceeding, shall be in the discretion of the court." Further, by stat. 21 & 22 Vict. c. 95, s. 23, it is enacted that " It shall be lawful for a registrar of the principal reg- 21 & 22 istry of the court of probate, and whether any suit or s. 23. Reg- other proceeding shall or shall not be pending in the jgs^^/g"^- said court, to issue a subpoena requiring any person to poenas. produce and bring into the principal or any district registry, or otherwise as in the said subpoena may be directed, any paper or writing being or purporting to be testamentary, which may be shown to be in the possession, within the power, or under the con- trol of such person ; and such person, upon being duly served with the said subpoena, shall be bound to produce and bring in such Proceedings against persons suspected of § 17. So in Pennsylvania, by act of March concealing wills, &c. are provided for by 15, 1832, § 7.] statute in Massachusetts. Genl. Sts. c. 92, (g) lb. [318] 358 OF PROBATE. [PT. I. BK. IV. paper or writing, and shall be subject to the like process of con- tempt in case of default as if he had been a party to a suit in the said court, and had been ordered by the judge of the court of probate to produce and bring in such paper or writing." It has been more than once laid down by Lord Eldon, that the g ,. ., lien of an attorney or solicitor does not extend to the who pre- original will executed by his client : and that he cannot pared the ° ,. • 7 s <-\ i • ^ -n will has no refuse the production of it. (h) On a late occasion (i) a rule was obtained in the court of king's bench to show cause why a writ in the nature of a writ of prohibition should not * issue to the judge of the prerogative court of Canterbury, commanding him to stay all proceedings against John .Law, in the matter of Joseph Wood, deceased, until the lien of him, John Law, and of Richard Coates, on the will of Joseph Wood, should have been satisfied or discharged. It appeared from the affidavits sworn in support of the application, that Law and Coates were attorneys, and had been employed as such by the deceased ; he died indebted to them in 2001. for business done, including the prepa- ration of the will, which he had deposited with them. After his death, Law admitted that the will was in his hands, but refused to give it up to the widow until his account was settled. Where- upon he was served with a citation from the prerogative court, at the instance of the widow, requiring him to appear in that court, and bring in and leave in the registry there the original will. It was further sworn that Sir J. NichoU, the judge of the prerogative court, had, on a day subsequent to the day on which the citation required the will to be brought in, declared, upon the case being mentioned, that the claim of lien was no excuse for not bringing in the will ; and that if it was not brought in on or before the next sitting of the court, he should pronounce Law to be in contempt. It was urged in support of the application, that as a lien was claimed, which is a matter of common law, the court ought to interfere to prevent the spiritual court from proceeding. But the court of king's bench, after argument, discharged the rule, on the ground that the spiritual court had, at all events, jurisdic- tion to order the will to be brought in ; and that it was not to be (A) Georges v. Georges, 18 Ves. 294; poses of the testator; which it cannot bo Lord V. Wormleighton, Jac. 580 ; Balch unless it is produced elsewhere. Jacob. V. Symes, 1 Turn. & Euss. 87. He en- 581. gages to make a will effectual for the pur- (») Ex parte Law, 2 Ad. & El. 45. [314] CH. II. § I.J DEPOSIT OF WILLS, ETC. 359 presumed, that when they had ordered the will in, they would do anything improper. In Brown v. Coates, (y) Sir John NichoU strongly inclined to an opinion, that a mere holder of a will, monished to „ ,j . bring it into the prerogative court, could not be allowed » win not J. , . . ,. ^. , , allowed to to dispute the jurisdiction, and put the other party to dispute ju- proof of bona notabilia, prior to giving up the will. * Disputed wills ought to be lodged in the registry of the court of probate for custody. On one occasion Sir John Nicholl Disputed observed, (Jc) " Practitioners have no right to keep wills J^'bg""^"^' in their possession. I have, in several instances, stated, lotigedm that the expense necessary to get a will out of the hands try. of a party must fall upon those who withhold it." It has been the constant practice of the prerogative court, to order all testamentary papers to be brought in when Order to required. And a duplicate is a part of a will, and to ['estTme'nf-' be considered a testamentary paper within this rule. (T) *''•>' papers. Whether the will respected personal estate only, or whether it was a mixed will, concerning both lands and goods, it was. Deposit of after probate, deposited, together with all other testa- registry: mentary papers, in the registry of the ecclesiastical court iiow it can in which it had been proved. And now, by the 66th ^ ^° "" ' section of the court of probate act, 1857 (20 & 21 Vict. v-e^eSr c. 77), " there shall be one place of deposit under the l;^"- control of the court of probate, at such place in London deposit of or Middlesex as her majesty may by order in council wills. direct, in which all the original wills brought into the court or of which probate or administration with the will annexed is granted under this act in the principal registry thereof, and copies of all wills the originals whereof are to be preserved in the district registries, and such other documents as the court may direct, shall be deposited and preserved, and may be inspected under the control of the court and subject to the rules and orders under this act." (rri) If it should be needed in order * to be put (/) 1 Add. 345. cipal registry of the court of probate, cal- (h) Cunningham v. Seymour, 2 Phillim. endars of the grants of probate and ad- 250. ministration in the principal registry, and (I) Killican v. Parker, 1 Cas. temp. Lee, in the several district registries of the 662. court, for such periods aa the judge may (m) Bysect. 67, "The judge shall cause think fit, each such calendar to contain a to be made from time to time, in the prin- note of every probate or administration [315] [316] 360 OF PROBATE. [PT. I. BK. IV. in evidence in some other judicial proceeding, the attendance of the registrar, or other proper officer with it must be procured. In some cases, an order of the court of chancery may be obtained that it shall be delivered out by the registrar on giving security to return it. (n) And the ecclesiastical court itself has, on sev- eral occasions, ordered the will to be delivered out of its registry for the legal purpose of its being sent to the proper place for its custody, (o) The last of these orders ( p) appears io have been a decree that the will and codicils of Napoleon Bonaparte should be delivered out (after notarial copies had been made) in order to be sent to the legal authorities in France to be recorded there in the proper place. Stat. 20 & But with respect to cases where it was formerly neces- c.^77"s!'64: ^^^J *° produce the original will, in order to establish a probate to Revise of real estate, it is enacted by stat. 20 & 21 Vict. be evi- ' •' . . dence of c. 77 (court of probate act), s. 64, that on notice being suits as to given of intending to put the probate in evidence, the Unless the ' probate shall be sufficient evidence of the will and its the'wiu is* validity, unless the * other party shall give notice that he disputed, intends to dispute the validity of the will. This subject, and the enactment contained in the 62d section of the same statute, that the probate shall be conclusive, of the validity of the will, in all proceedings affecting the real estate, with the will annexed granted within the shall from tinie to time by rule or order period therein specified, and also a note direct ; and every printed copy of a cal- of every other administration granted endar so transmitted as aforesaid shall be within the same period, such respective kept in the registry or office to which it is notes setting forth the dates of such transmitted, and may be inspected by any grants, the registry in which the grants person on payment of a fee of one shil- were made, the names of the testators and ling for each search, without reference to intestates, the place and time of death, the number of calendars inspected." By the names and descriptions of the exec- s. 69, " An ofBcial copy of the whole or utors and administrators, and the value of any part of a will, or an official certificate the effects ; and the calendars to be so of the grant of any letters of administra- made shall be printed as the same are tion, may be obtained from the registry from time to time completed." By s. 68, or district registry where the will has been " The registrars shall cause a printed proved or the administration granted, on copy of every calendar to be transmitted the payment of such fees as shall be fixed through the post or otherwise, to each of for the same by the rules and orders under the district registries, and to the office of this act." her majesty's prerogative in Dublin, the (n) See ;jos«, § ix. office of the commissary of the county of (o) Post, § vii. Midlothian, in Edinburgh, and such other (p) In re Napoleon Bonaparte, 2 Rob- offlces, if any, as the court of probate ert. £06. [317] CH. n. § I.] DEPOSIT OF WILLS. 361 where the probate has been granted after proof in solemn form, &c. will be considered hereafter, (j') together with the general doc- trine of the effect of probate. By the court of probate act, 1857, s. 89, " The acting judge and registrar of every cou,rt, and other person now having Stat. 20 & jurisdiction to grant probate or administration, and every c. 77, s.'sg. person having the custody of the documents and papers pi^esln^t" of or belonging to such court or person, shall, upon re- cafcouTts" ceiving a requisition for that purpose, under the seal of and others ^ I J. ' io transmit the court of probate, from a registrar, and at the time all wills, and in the manner mentioned in such requisition, trans- registry. mit to the court of probate, or to such other place as in such requi- sition shall be specified, all records, wills, grants, probates, letters of administration, administration bonds, notes of administration, court books, calendars, deeds, processes, acts, proceedings, writs, documents, and every other instrument relating exclusively or principally to matters or causes testamentary, to be deposited and arranged in the registry of each district or in the principal regis- try, as the case may require, so as to be easy of reference, under the control and direction of the court." And by stat. 21 & 22 Vict. c. 96, s. 27, " Whereas doubts have been entertained whether a requisition can be issued g^^^ 21 & under section 89 of the court of probate act for the trans- ^^„T''^'' , J^ _ c. 96, s. 27. mission of one or more papers only, not being all the Eequisi- • 1 t r 1 tions may papers and documents in the custody 01 the person to be issued whom any such requisition may be addressed : be it transmis- therefore enacted and declared, that the said section f|°",°* ^ ' single pa- shall be construed to extend to all requisitions, whether P^"^- for the transmission of one or of more records, wills, grants, pro- bates, letters of administration, * administration bonds, notes of administration, court books, calendars, deeds, processes, acts, pro- ceedings, or other instruments relating exclusively or principally to matters and causes testamentary." iq) Post, pt. I. bk. VI. ch. I. [318] 362 OF PEOBATK. FT. 1. BK. IV. SECTION II. When the Will is to be proved. If the testator be yet living, the judge may not proceed to the The testa- proving of his testament, at the petition either of the record and executor or any other, saving at the request of the tes- wfl hrws' tator himself ; but, at his petition, the testament may be lifetime. recorded and registered among other wills ; but it is not to be delivered forth under the seal of the ordinary with a pro- bate ; because it is of no force as long as the testator lives, who also may revoke or alter the same at anytime before his dea.th. (r) And now by 91st section of the probate act, 1857 (20 & 21 20&21 Vict. c. 77), it is enacted, that " One or more safe and Vict. c. 77 . ■ . ' convenient depository or depositories shall be provided, under the control and directions of the court of probate, for all such wills of living persons as shall be deposited therein for safe custody; and all persons may deposit their wills in such depository upon payment of such fees and under such regulations as the judge shall from time to time by any order direct, (r^) The time, after the testator's death, (s) when the will is to * be s. 91. As to de- positories for safe custody of the wills of living per- sons. ()•) Swinb. pt. 6, 5. 13, pi. 1. (r' ) [Provisions for the deposit and safe keeping of wills of living persons have been made by statute in Massachusetts, and probably in other states. See Genl. Sts. of Mass. <;. 92, §§ 12, 13, 14, 15.] (s) If the death of the party cannot be proved by sufficient witnesses, recourse must be had to the presumption of law ; for which see Swinb. pt. 6, s. 13, pi. 2 ; Godolph. pt. 1, c. 20, s. 3 ; Deanw. David- son, 3 Hagg. 554 ; In the Goods of Hut- ton, 1 Curt. 595. Or in the case of a person long absent, and in parts far re- mote, and transmarine, to common fame. Swinb. pt. 6, s. 13, pi. 2 ; Godolph. pt. 1, c. 20, is. 3. In the common law courts, a jury may presume that a man is dead at the expiration of seven years from the time when ho was last known to be living. Per Lord Ellenborough, in Doe v. Jesson, [319] 6 East, 84 ; [Loring v. Steineman, 1 Met. 204; Learned v. Corley, 43 Miss. 687; Poulks V. Khea, 7 Bush (Ky.), 568; Ad- ams V. Jones, 39 Geo. 479 ; Hancock u. American Life Ins. Co. 62 Missou. ; 3 Cen- tral Law Jour. 595. Before the presump- tion of death arises as to any one in such cases, it must be shown that he was ab- sent for the seven yeai-s or more from a place where he had an established residence. Stinchfield v. Emerson, 52 Maine, 465. The rule is thus stated by Howard J. in Stevens v. McNamara, 36 Maine, 178, 179. " Ordinarily, in the absence of evi- dence to the contrary, the continuance of the life of an individual to the common age of man, will be assumed by presump- tion of law. The burden of proof lies upon the party alleging the death of the person; but, aiter an absence from his home or place of residence seven years, CH. II. § II.] WHEN THE WILL IS TO BE PROVED. 363 proved is somewhat uncertain, and left to the discre- Timewith- tion of the judge, according to the distance of the ^'^^''^''^^ without intelligence respecting him, the presumption of life will cease, and it will be incumbent on the other party asserting it, to prove that the person was living within that time. 2 Stark. Ev. 365; 1 Greenl. Ev. § 41, and cases cited." It is not necessary that the party alleged to be deceased should be proved to have been absent from the country ; it is sufficient, if it appears that he has been absent for seven years from the particular state of his residence, without being heard from. Newman u. Jenkins, 10 Pick. 515; Innis V. Campbell, 1 Rawle, 373 ; Spurr v. Trimble, 1 A. K. Marsh. 278 ; Primm u. Stewart, 7 Texas, 178; Woods w. Woods, 2 Bay, 476; Wambough v. Schank, 1 Penning. 167 ; Stevens v. McNamara, 36 Maine, 176 ; Whiteside's Appeal, 23 Penn. St. 114; Hancock v. American Life Ins. Co. 62 Missou. ; 3 Central Law Jour. 595. The presumption of death, as a limitation of the presumption of life, must be taken to run exclusively from the termination of the prescribed period ; so that the jury are bound to presume that the person lived throughout the whole period of seven years, unless there are circumstances in evidence tending to show the contrary. Burr V. Sim, 4 Whart. 150. The presump- tion of the death of a person from his ab- sence for more than seven years without being heard from is, however, merely a presumption of fact, and maybe rebutted; and for the purpose of rebutting it, evi- dence is admissible to show that the per- son has been heard of as living within that time, though by others than mem- bers of his family. Flynn v. Coffee, 12 Allen, 133.] See, also, as to this pre- sumption. Doe V. Deakin, 4 B. & Aid. 433; Doe u. Griffin, 15 East, 293; Wat- son a. King, 1 Stark. 121 ; Doe v. Ne- pean, 5 B. & Ad. 86 ; S. C. on error, 2 M. & W. 894 ; Sillick v. Booth, 1 Y. & Coll. C. C. 117; Watson i;. England, 14 Sim. 28; Dowley v. Winfield, 14 Sim. 277 ; Bowden v. Henderson, 2 Sm. & G. 360 ; Taylor on Ev. 168 et seg. 2d ed. ; In the Goods of Turner, 3 Sw. & Tr. 476 ; In re Tindall's Trust, 30 Beav. 151 ; In re Benham's Trusts, L. E. 4 Eq. Ca. 416 ; In re Beasney's Trusts, L. R. 7 Eq. Cas. 498; [Lapsley v. Grierson, 1 H. L. Cas. 498 ; Stouvenel v. Stephens, 2 Daly (N. Y.), 319 ; Oppenheim v. Wolf, 3 S.iudf Ch. 571 ; Gerry v. Post, 13 How. Pr. 118; Eagle a. Emmett, 4 Bradf. Sur. 117; Clarke v. Cummings, 5 Barb. 359, 364 ; King u. Paddock, 18 John. 141 ; Merritt 0. Thompson, 1 Hilton, 550 ; McCartee v. Camel, 1 Barb. Ch. 455 ; Moehring «. Mitchell, 1 Barb. Ch. 264.] There is no legal presumption as to the time of his death. Doe v. Nepean, tibi supra; In the Goods of Smith, 2 Sw. & Tr. 508; Thomas v. Thomas, 2 Dr. & Sm. 298. [The burden of proving that the death of a person, presumed to be dead because he has not been heard of for seven years, took place at any particular time within the seven years, lies upon the party who claims a right, to the establishment of which that fact is essential. In re Phene's Trusts, L. R. 5 Ch. App. 139 ; In re Lewes's Trusts, L. E. 6 Ch. App. 356 ; S. C, L. E. 11 Eq. 236; Whiting v. Nicholl, 46 111. 220 ; Clarke v. Canfield, 2 McCar- ter (N. J.), 119, 121 ; H.iucock v. Amer- ican Life Ins. Co. 62 Missou. ; 3 Central Law Jour. 595 ; Newman v. Jenkins, 10 Pick. (2d ed.) 515, 516, and cases cited in note (1); Smith v. Knowlton, 11 N. H. 191; Primm v. Stewart, 7 Texas, 178; Burr V, Sim, 4 Whart. 150; Bradley v. Bradley, 4 Whart. 173; Whiteside's Ap- peal, 23 Penn. St. 114. But in Kelly w. Drew, 12 Allen, 107, it was decided that where a woman married a second hus- band, after living separate from her first husband for about four years without hearing of him or of his death, and did not hear of him for sixteen years after- wards, the presumption was that she was the lawful wife of the second husband. The court said : " Under the circum- 364 OF PROBATE. [PT. I. BK. IV. the will place, the weight of the will, the quality of the execu- oughttobe r ^ & _ ' -i j _ proved. tors, the absence of the witnesses, the importunity oi creditors and legatees, and other circumstances incident thereto, (i) And now by stat. 55 Geo. 3, c. 184, s. 37, it is enacted that, " if any person shall take possession of, and in any manner administer, any part of the personal estate and effects of any person deceased, without obtaining probate of the will or letters of administra- tion of the estate and effects of the deceased, within six calendar months after his or her decease, or within two calendar months after the termination of any suit or dispute respecting the will or the right to letters of administration, if there shall be any such, which shall not be ended within four 'calendar months after the death of the deceased ; every person so offending shall forfeit the sum of one hundred pounds, and also a further sum, at and after the rate of ten pounds per centum on the amount of the stamp duty payable on the probate of the will, or letters of administra- tion of the estates and effects of the deceased, (m) * By a modern regulation of the prerogative court of Canterbury, Kule when where probate was applied for after the expiration of five^jears g^^ years from the death of the testator, the delay must sincfthe ^^^® ^^^'^ Satisfactorily accounted for, by an affidavit death. made by the executor or other competent person, (a;) stances of this case, the presumption of the be insinuated to the official or commissary wife's innocence in marrying again might of the bishop within four months next well overcome any presumption that a after the testator's death. lb. And the man not heard from for four years before ordinary may sequester the goods of the the second marriage, or for sixteen years deceased, until the executors have proved afterwards, was alive and her lawful hus- the testament. lb. band when she married the second time." (m) Proceedings may also be taken See Greensborough v. Underbill, 12 Vt. against him under stat. 28 & 29 Vict. 604. As to the kind of evidence admissible c. 101, s. 57, as to which see post, pt. i. on the question of death within the seven bk. vii. years, see Tlsdale v. Conn. Mut. Life {x) Gwynne on Probate and Legacy Ins. Co. 26 Iowa, 1 70 ; Hancock v. Amer- Duties, 10. See In the Goods of Dar- ican Life Ins. Co. 62 Missou.; 3 Central ling, 3 Hagg. 561. [A will may be proved Law Jour. 595, 596.] As to presuming in the probate court in Massachusetts, at the death of a legatee, see In re Lewes's any time, even after the lapse of twenty Trusts, L. K. 6 Ch. App. 356 ; S. C. L. years, for the purpose of establishing a R. U Eq. Cas. 236 ; In re Phene's Trusts, title to real estate ; Shumway v. Holbrook, L. R. 5 Ch. App. 139; [Hickman v. Up- 1 Pick. 114 ; although original adminis- sall, L. R. 20 Eq. 136.] tration could not by statute be granted (<) Godolph. pt. 1, IS. 20, ». 3. [See after twenty years. Gray J. in Waters v. Gray J. in Waters u. Stickney, 12 Allen, Stickney, 12 Allen, 12, 13; Marcy v. 17.] Yet, regularly, testaments ought to Marcy, 6 Met. 370. The production of [320] CH. II. § 111.] DISTRICT KEGISTEIES. 365 By rule 43 of the " general rules and orders for the registrars of the principal registry (made in 1862)," "No probate or Rule 43 letters of administration with the will annexed shall ^■^• issue until after the lapse of seven days from the death of the deceased, unless under the direction of the judge, or by order of two of the registrars." And by rule 45, "In every case where probate or administration is, for the first time, applied for after the lapse of three years from the death of the deceased, the reason of the delay is to be certified to the registrars. • Should the certificate be unsatisfactory, the registrars are to require such proof of the al- leged cause of delay as they may see fit." SECTION III. Of the Practice of the Court of Probate, and herewith of Proof of Wills in Common Form. By the court of probate act, 1857, 20 & 21 Vict. c. 77, s. 13, "There shall be established for each of the districts „„„ „, 20 & 21 specified in schedule (A) to this act, and at the places ^i<=t- <=■ 77, respectively mentioned in such schedule, a public regis- District try attached to and under the control of the court of pro- to^e "s-^ bate, hereinafter referred to as ' The District Registry.' " '^''I'^'^^'J- By the 46th section of the same statute, " Probate of a will or letters of administration may, upon application for that g ^g purpose to the district registry, be granted in common ^^^''^J^' form by the district registrar in the name of the court of ministra- probate, and under the seal appomted to be used in such be granted * district registry, if it shall appear by affidavit of the per- fo,m by son or some or one of the persons applying for the same Registrars, that the testator or intestate, as the case may be, at the '^p'' 3*5.*" time of his death had a fixed place of abode within the affidavit district in which the application is made, and such place testator, of abode being stated in the affidavit, and such probate fixed "piare or letters of administration shall have effect over the »* "'^'"i^- personal estate of the deceased in all parts of England accord- ingly-" W a will without probate can be of no force, (y) It is not obligatory to apply for pro- however ancient it may be.] bate or administration to any district reg- [321] 366 OF PROBATE. [PT. I, BK. IV. And by sect. 47, " Such affidavit shall be conclusive for the g ^7 purpose of authorizing the grant by the district registrar Affidavit to of probate or administration ; and no such grant of pro- sive for bate or administration shall be liable to be recalled, re- ing grant voked, or otherwise impeached by reason that the tes- pio a e. ^g^j.Qj, Qj. iji^jQstate had no fixed place of abode vrithin the district at the time of his death, and every probate and adminis- tration granted by any such district registrar shall effectually dis- charge and protect all persons paying to or dealing with any executor or administrator thereunder, notwithstanding the want of or defect in such affidavit, as is hereby required." By sect 48, " The district registrar shall not grant probate or Distri t administration in any case in which there is contention registrar as to the grant, until such contention is terminated or not to . & ' make disposed of by decree or otherwise, or in which it other- wiien there wise appears to him that probate or administration tention!' ought not to be granted in common form." And by sect. 49, " Notice of every application to any district S. 49. registrar for the grant of probate or administration, shall mission of be transmitted by such district registrar to the registrars application of the principal registry by the next post after such ap- o7pro'bate, plication shall have been made; and such notice shall district specify the name and description, or addition [if any], registrar. of the testator Or intestate, the time of his death, and the place of his abode at his decease, as stated in the affidavit made in .* support of such application, and the name of the person by whom the application has been made, and such other par- ticulars as may be directed by rules or orders under this act ; and no probate or administration shall be granted in pursuance of such application until such district registrar shall have received a cer- tificate under the hand (2) of one of the registrars of the principal registry, that no other application appears to have been made in respect -of the goods of the same deceased person, which certificate the said registrar of the principal registry shall forward as soon as may be to the district registrar ; all such notices in respect of ap- plications in the district registries shall be filed and kept in the istrj-, but the application may, in every the certificate need not be under the hand, case, be made to the court of probate. See but may be issued under a stamp provided sect. 59, stated ante, 300. for that purpose. («) By Stat. 21 & 22 Vict. c. 59, s. 26, [322] CH. II. § III.] PRACTICE OF COURT OF PROBATE. 367 principal registry, and the registrars of the principal registry shall, with reference to every such notice, examine all notices of such applications which may have been received from the several other district registries, and the applications which may have been made for grants of probate or administration at the principal registry, so far as it may appear necessary to ascertain whether or no ap- plication for probate or administration, in respect of the goods of the same deceased person, may have been made in more than one registry, and shall communicate with the district registrars as oc- casion may require in relation to such applications." And by sect. 51, " On the first Thursday of every month, or of tener, if required by any rules or orders to be made in S. 51. that behalf, every district registrar shall transmit to the registrars registrars of the principal registry a list in such form and {"sts of'pro- containing such particulars as may be from time to time bates and or J aammistra- required by the court of probate, or by any rules or tionsand orders under this act, of the grants of probate and ad- iviiis. ministration made by such district registrar up to the last preced- ing Saturday, and not included in a previous return, and also a copy certified by the district registrar to be a correct * copy (a) of every will to which any such probate or administration relates." And by sect. 52, " Every district registrar shall file and pre- serve all original wills of which probate or letters of ad- s. 52. Dis- ministration, with the will annexed, may be granted by 'rars'to^'^' him, in the public registry of the district, subject to such P^?^?'"'j^ regulations as the judge of the court of probate may from wills. time to time make in relation to the due preservation thereof, and the convenient inspection of the same." By sect. 29, " The practice of the court of probate shall, except otherwise provided by this act, or by the rules or orders g. 29. Prao- to be from time to time made under this act, be, as far ^oyrfto''be as the circumstances of the case will admit, according to according to tn6 prG9~ the present practice of the prerogative court.' (h) entprac- By sect. 30, " And to the intent and end that the pro- preroga- cedure and practice of the court may be of the most sim- '^^ ''""'^ " (a) By Stat. 21 & 22 Vict. c. 95, s. 25, of opinion that this section applies to the these copies may be certified and trans- procedure only of the court, and not to the mitted under a stamp provided for that principles on which it is to act. In the purpose. Goods of Oliphant, 1 Sw. & Tr. 525. (Ii) Sir C. Cresswell appears to have been [323] OF PROBATE. [PT. I. BK. IV. pie and expeditious character, it shall be lawful for the lord chan- S. 30. cellor, at any time after the passing of this act, with the orders to be advice and assistance of the lord chief justice of the regulaUng court of queen's bench, or any one of the judges of the the pro- superior courts of law to be by such chief justice named the court, in that behalf, and of the judge of the said prerogative court, to make rules and orders to take effect when this act shall come into operation for regulating the procedure and practice of the court, and the duties of the registrars, district registrars, and other officers thereof, and for determining what shall be deemed contentious, and what shall be deemed non-contentious business, and, subject to the express provisions of this act, for fixing and regulating the time and manner of appealing from the decisions of the said court, * and generally for carrying the provisions of this act into effect ; and after the time when this act shall come into operation, it shall be lawful for the judge of the court of probate from time to time, with the concurrence of the lord chancellor and the said lord chief justice, or any one of the judges of the superior courts of law to be by such chief justice named in this be- half, to repeal, amend, add to, or alter any such rules and orders as to him, with such concurrence as aforesaid, may seem fit." Under the powers conferred by this section, a great many very copious, minute, and explicit rules and orders were in the years 1862 and 1863 made for the guidance of practitioners in the court of probate, both in respect of contentious and non-contentious bus- iness, and for the instruction as well of the principal registrars as of district registrars, together with a very large collection of forms. As to which it is thought more expedient to refer to the books of practice, (c) than by inserting them to encumber this treatise by such a very long statement as would be requisite for that purpose. These rules, orders, and directions are for the most part founded on the doctrines and practice previously established in the prerog- ative court with regard to the making, &e. of wills, which have already been stated in the progress of this work. And inasmuch as the practice of the court as established at the time when the act passed, may, perhaps, be in some degree useful in illustrating and expounding the " orders, rules, and instructions," it is proposed to leave unaltered such portions of the last edition of this work as related in the established practice of the prerogative court, which, (c) Coote's Practice ; Dodd & Brook's Pi-actice. [324] CH. n. III.] IN COMMON FORM. 369 as it has already appeared, subject to the rules, &c. are to regulate the practice of the court of probate. A testament may be proved in two ways ; either in common form, or by form of law ; which latter mode is * also called the solemn form, and, sometimes, proving per testes. Qd') A will is proved in common form, when the executor presents it before the judge, and in the absence, and without citing the par- ties interested, produces witnesses to prove the same ; who testi- fying, by their oaths, that the testament exhibited is the true, vrhole, and last will and testament of the deceased, the judge there- upon, and sometimes upon less proof, doth annex his probate and seal thereto, (e) The affidavit required of the executor is to be in this form : In her Majesty's Court of Probate. The Principal Regis- try. In the Goods of A. B. deceased. Executor's I, C. D. of in the county of , make oath "*">• and say, that I believe the paper hereto annexed, and marked by {d) Swinb. pt. 16, s. 14, pi. 1 ; Godolph. pt. 1 , c. 20, s. 4. [The solemn form agrees with the practice in Massachusetts in all cases of the probate of wills. Gray J. in Waters v. Stickney, 12 Allen, 4.] There is another kind or form of proving testa- ments, which in the civil law is called apertura testimenii, which form respects written or closed testaments, in the mak- ing whereof amongst other solemnities the civil law required that the witnesses should put their seals ; and after the death of the testator, at the opening of the written or closed testament, the same law required that the same witnesses should be called by the magistrate to acknowledge their seals or to deny the sealing. But this form is not of any use with us. lb. (c) Swinb. pt. 6, s. 14, pi. 2 ; Godolph. pt. 1, c. 20, s. 4. [Proof of wills in com- mon form has been adopted and practised upon in some of the American States. The modes of proceeding vary in some respects from the English method. In New Hamp- shire, if the probate of a will is not con- tested, the judge may allow and approve the same in common form, upon the testi- mony of one of the subscribing witnesses thereto, although the others maybe living, VOL. 1. 24 and within the process of the court. Kev. St. N. Hamp. c. 157, § 6. As to the proof of wills in common and in solemn form in this state, see, further, Noyes u. Barber, 4 N. H. 406 ; and George v. George, 47 N. H. 44, 45, as to wills proved without no- tice. As to the law of Mississippi upon this subject, see Cowden v. Dobyns, 5 Sm. & M. 82 ; of North Carolina, see Etheridge V. Corprew, 3 Jones (Law), 14 ; of Ten- nessee, see Gibson v. Lane, 9 Yerger, 475 ; Byrn v. Fleming, 3 Head, 658 ; of South Carolina, see Brown v. Gibson, 1 Nott & McC. 326. "When it appears to the probate court in Massachusetts, by the consent in writing of the lieirs-at-law, or other satis- factory evidence, that no person interested in the estate intends to object to the pro- bate of a will, thecourt may grant probate thereof upon the testimony of one only of the subscribing witnesses. Genl. Sts. c. 92, § 19. But a decree establishing a will in this mode is equally conclusive with a de- cree made after the most ample contes- tation. The essential facts to be shown to entitle a paper to probate are, of course, the same in the case of an uncontested as in the case of a contested probate.] [325] 370 OF PROBATE. [PT. I. BK. IV. me, to contain the true and original last will and testament, with a codicil thereto, of A. B., late of deceased ; and that I am the sole executor therein named, and that I will well and faithfully administer the personal estate and effects of the said testator by paying his just debts and the legacies contained in his will and codicil so far as the same shall thereto extend and the law bind me, and that I will exhibit a true and perfect inventory of all and singular the said estate and effects, and render a just and true ac- count thereof whenever required by law so to do. That the testa- tor died at on the day of 18 , (/) and that the whole of the personal * estate and effects of the said testator does not amount in value to the sum of pounds to the best of my knowledge and belief Sworn by the said C. D. at this day of 18 . Before me. (^) By the ancient canon law, a proctor having a special proxy might make oath instead of the executor or administra- Proctor s ^ oath in tor, and swear upon the soul of his client. Qi) But now constitueit- by canon 132, it is ordered, that " forasmuch as in the **■ probate of testaments and suits for administration of the goods of persons dying intestate, the oath usually taken by proc- tors of courts in animam constituentis is found to be inconvenient ; therefore, from henceforth every executor or suitor for administra- tion shall personally repair to the judge in that behalf or his sur- rogate, and in his own person, and not by proctor, take the oath accustomed in these cases. But if by reason of sickness, or age, or any other just let or impediment, he be not able to make his per- sonal appearance before the judge, it shall be lawful for the judge (there being faith first made by a credible person of the truth of his said hinderance or impediment) to grant a cominission to some grave ecclesiastical person, abiding near the party aforesaid, whereby he shall give power and authority to the said ecclesiasti- cal person in his stead to minister the accustomed oath above men- tioned to the executor or suitor for such administration, requir- (/) J^y " ''"le of the prerogative court recemng an afiBdavit from the applicant of of Canterbury, the time of the death was the amount in value of the effects of the required to form part of the oath. See deceased. As to which, see post, pt. i. sthe reason for this, post, pt. i. bk. iv. bk. vii. ch. II. § VII. And by stat. 55 Geo. 3, c. 184, {g) Ante, 325, note (/). B. 38, no ecclesiastical court shall grant (A) 1 Oughton, tit. 6, s. 4, note (c). any probate without iirst requiring and [326] CH. II. § III.] IN COMMON FORM. 371 ing his said substitute, that by a faithful and trusty messenger he certify the said judge truly and faithfully what he hath done therein. "(z) Accordingly, if the executor be infirm, or live at a distance, it is usual to grant a commission or requisition to the arch- practice of bishop or bishop, in England or Ireland (as the case ^^"^1^^^'^' may be), or if in Scotland, the West Indies, or other oath where ^ . . . the execu- * foreign parts, to the magistrates or others competent torisin- authority, to administer the oath to be taken previous uves at a to granting probate of the will. (/) *'''^°"'- Where a commission had issued to take the afiidavits of execu- tors to the testamentary scripts of the deceased, and the commis- sion was, in the usual form, addressed to two clergymen, and directing that the executors should be sworn in the presence of a notary public ; it was held that it was insufficiently executed, the oath having been administered in the presence of two witnesses, instead of a notary public, (k) With respect to the manner of obtaining probate in common form, it is necessary to consider the subject, first, with re- „ , spect to wills made before the 1st of January, 1838, and obtaining i-nn ^ -i-i -CI probate in which therefore are not within the operation ot the stat. common 1 Vict. c. 26 {Act for the Amendment of the Law with °™' respect to Wills'). Secondly, with respect to wills made on or after that date, &c. and to which, consequently, that statute extends. First, with respect to wills made before the 1st of January, 1838. Where a will is perfect on the face of it, it is j^^^ ^f only required for probate in common form, where there ^gJ^^J^^Q® is no subscribing witness, that an affidavit should be i, 1838: -, . J! 1 '11 v. • when they made by two persons to the signature of that will being are perfect in the handwriting of the testator. (Z) If the will is at- (t) 1 Gibs. Cod. 470, tit. 24, c. 3. court would accept a return showing a Ij) Toller, 65. By order of the pre- virtual compliance with the object of the rogative court of Canterbury certain forms requisition. In the Goods of Towndrow, were prescribed for the commission of 2 Robert. 437. swearing executors residing in the coun- (i) Jones v. Jones, 2 Phillim. 241. try, and for the oath to be administered. [l) Brett r. Brett, 3 Add. 224; rule 20, See 3 Burn E. L. 233, 234, Phillimore's P. E. (Non-contentious Business). In a edition. Though the forms pointed out modern case, probate in common form of by the requisition have not been followed, an unattested will was granted on the yet if this ia owing to the refusal of the affidavit of one person only as to hand- authorities in a foreign country to execute writing, a solicitor and intimate acquaint- the requisition in the prescribed forms, the ance ; the sister of the deceased, being her [827] 372 , OF PROBATE. [PT. I. BK. IV. tested by one subscribing * witness, the affidavit of one person to handwriting is then only required ; and if it be attested by two subscribing witnesses, then the oath of the executor alone is suffi- cient, without any affidavits as to the writing, (m) By stat. 1 Vict. c. 26, s. 15, every legacy to an attesting witness shall be void, (m}') But if a subscribing witness is also where a ^ ^ " subscrib- a legatee in any will to which that statute does not ex- is fko a ''^^ tend, in such case (as the statute 25 Geo. 2, c. 6, does not legatee: apply to wills of personalty, and therefore the witness does not lose his legacy) (w) the party has been considered in the spiritual court as no witness, being incompetent from interest. Accordingly, if of two subscribing witnesses to a will, one is a legatee, the practice has been to require affidavit of one person to probate of the will in common form, as if the will were sub- scribed by a single witness ; if both subscribing witnesses are leg- atees, to require an affidavit of two persons to handwriting, just as it would be if the will were wholly unattested, (o) But where probate in common form is sought of an instrument when they which, On the face of it, is imperfect (whether the im- flct™n?he perfection consists in its being incomplete in the body of face: it, or merely in the execution, as in the want of signa- ture, or of * subscribing witnesses where there is an attestation probate clause, (^) or the like), two things are required by the granted. court before probate will be allowed. 1. There must be executor and sole next of kin and in dis- in his Ecclesiastical Law, vol. 4, p. 317, tribution, also deposing that from the de- Phillimore's edition, who adds, that such ceased's retired habits and infrequency of is the practice throughout the province of writing, no second affidavit of handwrit- Canterbury; but that within the province ing could be procured ; the deceased, too, of York it has been usual (though now having been dead nine months, and no discontinued in some of the dioceses) to other application made. In the Goods of swear also one witness. Keeton, 4 Hagg. 209. (ml) [In Massachusetts all beneficial (»i) Brett i;. Brett, 3 Add. 224; rules devises, legacies, and gifts to a subscribing 18 & 19, P. R. (Non-contentious Business), witness to a will are void, unless there are It is said by Godolphin, pt. 1, c. 21, s. 4, three other competent subscribing wit- that where there is no controversy or dis- nesses to the same. Genl. Sts. c. 92, § 10.] pute touching the will, there the single (n) See post, pt. iii. bk. in. ch. i. § i. oath of the executor alone is sufficient (o) 3 Add. 225. This practice continues, for the probate, in common form. And notwithstanding stat. 6 & 7 Vict. c. 85 ; Oughton, vol. I, tit. 6, s. 4, speaking of post, 345. See, also, rule 22, P. E. (Non- probate in the common form says, quod contentious Business). Jit solo juramento executoris. The above (p) See ante, 85. passage in Godolphin is cited by Dr Burn [328] [329] CH. II. § III.] IN COMMON FORM. 373 aflS davits stating facts, which, if established in solemn unless upon form of law (i. e. by plea and depositions) would sus- stating a tain the instrument, as a will, in case it was disputed. wouiJes- 2. There must be consent, implied or expressed, from ^niupon* all parties interested, (q} ^ro™ •" Therefore, as on the one hand, however complete the consent of the parties interested, the court will not grant probate in com- mon form of a testamentary paper, which the court is convinced could not, if opposed, be maintained as a will ; (r) so, on the other, although the affidavits disclose a case, which might (sup- posing the will were contested) establish the instru- and unless ment as testamentary, the court will refuse probate in common form, unless the parties interested are consent- ing or cited, (s) The rule is the same where, from erasures, interlin- eations, or other similar causes, it appears primd facie, on the document itself, that the instrument is delibera- tive, (t) It follows, that where minors are parties interested, since they cannot give a proxy of consent, probate in sent to pro- common form cannot, generally speaking, be obtained of common an instrument imperfect on the face of it. (u) * Secondly, with respect to wills made on or after the 1st day of January, 1838. If the will be perfect on the face of ^^, ^^ it, and there is an attestation clause, reciting that the wills made ° on or after solemnities required by the statute 1 Vict. c. 26, s. 9, Jan. i, have been complied with (e. g. " signed and declared by the above named testator, as and for his last will and testament, ail parties interested are con- senting or cited : the same law", where a paper is delibera- tive on the face of it. Minors cannot con- {q) In the Goods of Thomas, 1 Hagg. 695; In the Goods of Heme, 1 Hagg. 225 ; In the Goods of Hurrill, 1 Hagg. 253 ; In the Goods of Wenlock, 1 Hagg. 551. (r) In the Goods of Tolcher, 2 Add. 16. (s) In the Goods of Edmonds, 1 Hagg. 698; In the Goods of Adams, 3 Hagg. 258. If the deceased was illegitimate, the consent of the crown must be obtained. In the Goods of Robinson, 1 Hagg. 643. (t) In the Goods of Heme, 1 Hagg. 222 ; Braham v. Burchell, 3 Add. 254. See, also, In the Goods of Colberg, 2 Curt. 832. (u) In the Goods of Gibbs, 1 Hagg. 376 ; In the Goods of Eoss, 1 Hagg. 471 ; In the Goods of Thomas, 1 Hagg. 697. And issue that may be born after probate granted will not be bound by the decree. In the Goods of Taylor, 1 Hagg. 642. Where ink alterations in a will are care- fully made, and not improbably final, the court will not, on the non-appearance, after personal service of executors appointed, and of minor legatees materially benefited thereby, grant probate, in common form, of the paper as originally executed. Ea- venscroft v. Hunter, 2 Hagg. 65. [330] 374 OF PROBATE. [PT. I. BK. IV. in the presence of us present at the same time, who, in his pres- ence and in the presence of each other, have hereunto set our names as witnesses thereto. John Styles, Richard Nokes "), pro- bate in common form may be obtained upon the oath of the exec- utor alone. But if there is no attestation clause, or if there is a clause which does not state a performance of aU the prescribed ceremo- nies, an affidavi iS required from one of the subscribing witnesses, by which it must appear that the will was executed in compliance with the statute, (x) But this rule may be dispensed with, if the witnesses, after diligent inquiry, are not forthcoming, (z/) Where it appears from the affidavits, the attestation clause being imperfect, that the wiU was not properly attested by the witnesses under the statute, the court cannot decree adminis- tration to pass to the effects of the deceased as dead intestate ; for there might be collusion. All that the court will do in such cases is to reject the prayer for probate, leaving the parties to take out administration if they think proper ; as notwithstanding the court declines to grant probate, the will might be propounded and established. (2) If a will, bearing date on or after January 1, 1838, has * upon probate of the face of it any unattested obligation, interlineation, or hibiting' alteration, the practice is to require an affidavit, showing anTobHu whether they were made before or after the execution erations. of the will, (a) Where alterations are satisfactorily shown to have been made (a:) In the Goods v. Johnson, 2 Curt, tentious Business). One of the subscribed 341 ; In the Goods of Batten, 7 Notes of witnesses will suffice, if he can speak posi- Cas. 290 ; rule 4, P. R. (Non-contentious lively. But if none of them can do so, Business). Where one of the witnesses they should all, whatever be their number, deposed that the will was signed in the join in the affidavit. In the Goods of presence of himself and the other witness, Townshend, 5 Notes of Cas. 146. If none the other witness having no recollection as of them can depose negatively or affirma- to the fact, probate was allowed. In the lively, the practice is for the executor to Goods of Hare, 3 Curt. 54. See, also, join in the affidavit and depose that he ante, 101. cannot adduce any farther or other evi- (y) In the Goods of Luffman, .5 Notes dence, and then probate will be granted of of Cas. 183 ; In the Goods of Dickson, 6 the will as it originally stood. When two Notes of Cas. 278. witnesses join in one affidavit, both must (z) In the Goods of Ayling, 1 Curt, depose to the due execution. In the Goods 913. See, also. In the Goods of Watts, 1 of Batten, 7 Notes of Cas. 290. See ante, Curt. 594. 145, as to probate where words are com- (a) Rules 8, 9, & 10, P. R. (Non-con- pletcly obliterated. [331] CH. II. § III.] IN COMMON FORM. 375 before the execution, it is usual to engross the probate copy of the will/azV, 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 appear- ance of the original paper, the court will order the probate to pass in facsimile. (5) And it appears to have been probate in sometimes supposed that the grant of such a probate >c-sim«e. 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, (c) 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 its original state. A facsimile pro- bate, 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 exe- cuted it with the alterations or cancellations upon it. (c?) And the object of the facsimile is that the * alterations, &c. may pos- sibly 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 500Z., and I also give him 1,000Z. ; " and the testator then strikes out down to and including the words " 500Z." (e) In a late case (/) a testator, having duly executed a will, made a later one, betraying on the face of it insanity. The Probate executors of the earlier will took out a decree calling on tion o/per- all persons interested in the later paper to propound it, est'ed to^"^ with an intimation that, on not appearing, the court propound would decree probate of the earlier will. The persons paper. 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 (b) See post, pt. i. bk. Ti. ch. i. ; In the equally divided amongst them " interlined Goods of Raine, 34 L. J. N. S., P. M. & (without any caret to show where they A. 125 ; S. C. 11 Jur. N. S. 587 ; In the were intended to come in), and in such a Goods of Smith, 3 Sw. & Tr. 889. position that they are applicable to two (c) Shea c;. Boschetti, 18 Beav. 321 ; 3 sets of legatees. In such a case, it should De G., M. & G. 778, 779. seem, there must, of necessity, be a fac- iei) Gann v. Gregory, 3 De G., M. & G. simile probate. 777 ; post, pt. I. bk. vi. ch. i. (/) Palmer v. Dent, 2 Robert. 284 ; S. (e) Gann v. Gregory, 3 De G., M. & G. C. 7 Notes of Cas. 555. 780 Suppose, again, the words " to be [332] 376 OF PKOBATE. [PT. I. BK. IV. 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. Part of the This is a part of the " contentious business " of the tiousbusi- court, (^) and is, consequently, subject to all the rules court? ' * and orders made in 1862 in respect thereof, (^i) * When a will is to be proved in solemn form, according to the Proof in °^^^ practice, it is requisite that such persons as have solemn interest ("that is to say, the widow and next of kin of the form under ^ , -, . . . ... ^ i . the old deceased, to whom the administration ot his goods ought practice: ^^ ^^ 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 wit- nesses 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 administered by the adverse party, and (g) By rule 3 (Contentions Business), against the grant of probate or adminis- " All proceedings in the court of probate, tratlon." It is remarkable that the ex- or in the registries thereof in respect of pression, " common form business," thus business not included in the court of pro- elaborately interpreted, does not occur in bate act, 1857, under the expression, com- any other part of the act. mon form business (except the warning of (g^) [It very often happens, that what is cayeats), shall be deemed to be contentious called the solemn probate of a will is mat- business.'' By the court of probate act, ter of form merely, preliminary to the con- 1857, s. 2 (interpretation clause), "com- testation of its validity in the tribunal of mon form business " shall mean the husi- the last resort. Foster J. in Moulton's ness of obtaining probate and administra- Petition, 50 N. H. 537. The proceeding tion, where there is no contention as to to test the validity of a will is a proceeding the right thereto, including the passing of in rem. The res — the will is sub judice. probates and administrations through the Benoist v. Murrin, 48 Missou. 48. And court of probate in contentious cases when all persons interested have a right to in- the contest is terminated, and all business tervene and become parties at any time of a non-contentious nature to be taken in before the final decision. Sawyer w. Do- the court in matters of testacy and intes- zier, 5 Ired. (Law) 97 ; Fatten v. Allison, tacy, not being proceedings in any suit, 7 Humph. 320.] and also the business of lodging " caveats [333] CH. II. § IV.] IN SOLEMN FOEM. 377 the depositions committed to writing; afterwards the same are published, and in case the proof be sufficient, the judge by his sen- tence of decree pronounces for the yalidity of the testament. (K) According to the new practice under the court of probate act, 1857, declarations and pleas are substituted for the old under the modes of pleading. And forms for declarations and tice!^"^^"" pleas are furnished by the rules, 1862 (contentious business). And by rule 4, " Executors or other parties who, previously to the passing of the ' Court of Probate Act, 1857,' might prove wills in solemn form of law, shall be at liberty to prove wills under similar circumstances, and with the same privileges, lia- bilities, and effect, as heretofore." * Rule 5. " Next of kin and others, who, previously to the pass- ing of the said act, had a right to put executors or parties en- titled to administration with will annexed upon proof of a will in solemn form of law, shall continue to possess the same rights and privileges, and be subject to the same liabilities with respect to costs as heretofore." Rule 6. " Parties who previously to the passing of the said act had a right to intervene in a cause may do so, with leave of the judge of one of the registrars, obtained by order on summons, subject to the same limitations and the same rule with respect to costs as heretofore." The difference between the common form and the solemn form, with respect to citing the parties interested, works this The ex- 6Cutor diversity of effect : viz, that the executor of the will may, after proved in common form may, at any time within thirty common years, be compelled, by a person having an interest, to *;[^'to^ prove it per testes in solemn form. (^) Thus, a probate P™^'^ '^"^ of a codicil, granted in common form in 1808, was, upon testes. (h) Swinb. pt. 6, ». 14, pi. 3 ; Godolph. H. 537. This mode of proof only is now pt. I, c. 20, s. 4. [As to the probate of a generally required in the American States ; will in solemn form, and what is required and a decree allowing and approving a in such a proceeding, see Brown v. Ander- will in this form is ordinarily conclusive son, 13 Geo. 171. In Noyes w. Barber, 4 in the common law courts. 2 Greenl. Ev. N. H. 409, Richardson C. J. said: " We § 692.] See, as to examination of the wit- understand a probata in solemn form to nesses by word of mouth, stat. 20 & 21 be a probate made by a judge, after all Vict. c. 77, s. 31 ; post, 345. persons whose interests may be affected by (i) Godolph.pt. 1, c. 20, ^s. 4; [Noyes the will have been notified, and had an v. Barber, 4 N. H. 406 ; Brown v. Gibson, opportunity to be heard on the subject." 1 Nott & McC. 326 ; Gibson v. Lane, 9 See Foster J. in Moulton's Petition, 50 N. Terger, 473 ; Gray J. in Waters v. Stick- [334] 378 OF PROBATE. [PT. I. BK. IV. the citation of tlie executor by a next of kin to prove it per testes in due form of law, revoked in 1818, (¥) and one granted in 1807, * by a similar proceeding revoked in 1820. (V) So that if the wit- nesses be dead in the mean time, it may endanger the whole testa- ment. 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, (m) Hence, not only are wills proved in solemn form, at the in- stance of persons who desire to invalidate them, (w) but, the executor himself may, and in prudence often does for greater security, propound and prove the will, in the first instance, per testes, of himself, citing the next of kin, and " all others pretending interest in general," The ex- ecutor him- self may prove the will in Bol- emti form in the first instance. ney, 12 Allen, 4.] Indeed Swinburne, pt. 6, 0. 14, pi. 4, seems to consider ten years as the limit within which the executor may be compelled to prove ; but this prob- ably is a typographical mistake for thirty. See 4 Burn E. L. 318, Phillimore's ed. However, in Hoffman v. Norris (Prerog. 1805), reported in a note to Newell t. Weeks, 2 Phillim. 231, Sir Wm. Wynne, says, " I do not know that there is any specific time that limits a party." See, also, Merryweather t. Turner, 3 Curt. 802, 817; In the Goods of Topping, 2 Robert. 620, by Sir J. Dodson, accord. But where a party who Is thus entitled to call in the probate and put the ex- ecutor to proof of the will, chooses to let a long time elapse before he takes this step, he is not entitled to any indul- gence at the hands of the court. He is entitled to have the law strictly adminis- tered and to nothing beyond it. Blake v. Knight, 3 Curt. 553. And under such circumstances the court (having regard to the infirmity of the witnesses' memory after the lapse of time) is, it should seem, somewhat astute to discover circumstances whereupon to found an inference that the formalities required for a due execution of the will have been gone through. See the cases collected, ante, 101. [In some of the American States, periods for the contesta- tion of the probate of wills have been pre- [335] scribed by statutes, to which the reader is referred. See Roy v. Segrist, 19 Ala. 810; Nalle y. Fenwick, 4 Rand. 418; Parker v. Brown, 6 Grattan, 554. But in other .itates there is but one form or time of probate, and, when it has been made in that form, it is conclusive, and not subject to any subsequent review or reexamina- tion. In all cases, where the validity of a will has been once fully contested In the manner pointed out by statute for contes- tation, review, or reexamination, that is conclusive on all persons. Scott v. Calvit, 3 How. (Miss.) 157, 158; Nalle v. Fen- wick, 4 Rand. 588 ; Hodges v. Bauchman, 8 Yerger, 186 ; Malone v. Hobbs, 1 Rob- inson, 346.] (k) Satterthwaite v. Satterthwaite, 3 Phillim. 1. (I) Finucane v. Gayfere, 3 Phillim. 405. (m) Swinb. pt. 6, s. 14, pi. 4. (n) In such case it is laid down 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 im- pugning of the will. 1 Oughton, tit. 6, ». 10; 4 Burn E. L. 819, Phillimore's ed. But this doctrine is, it should seem, obso- lete. UH. 11. § IV.] IN SOLEMN FORM. 379 to " see proceedings ; " which being done, the will shall not be set aside afterwards (provided there be no irregularity in the proc- ess) when the witnesses are dead, (o) But the executors cannot be allowed to issue a citation against the legatees under a codicil, which they do not believe to be a true codicil of the deceased, calling on them to propound and prove it if they think fit. The proper course is for the executors to prove the will in solemn form, and cite the next of kin and the asserted legatees under the codicil to see the will proved. (») The next of kin, as such merely, are entitled to call for proof in solemn form of the deceased's will, of common right. The ex- And the mere acquiescence of a next of kin to the trcom™*^ probate being taken in the common form is no bar to P^^'^"! }° , . p 1 • . 1 prove in the exercise of this right, even though he has received a solemn legacy as due to him under the will ; for he is still at next of liberty to * call in the probate, and put the executor on ha°'aTqui- proof of that identical will per testes. (5') A strong in- rIceiVeda stance of this occurs in the case of Core v. Spenser legacy. (which was decided in the prerogative court of Canterbury, in 1796), (r) 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 (0) 1 Ought, tit. 6, s. 5 ; tit. 222, s. 1, 2. [In the American States, formal notice in some newspaper or newspapers, most likely to convey information to all parties inter- ested, is generally required in cases where it is not waived by such parties, and, that notice being given, all parties will be bound by the proceedings in the probate of the will whether contested or uncon- tested. Post, 564, note (i) ; Parker v. Parker, 11 Cush. 524; Smith J. in Cross V. Brown, 51 N. H. 489. No particular form of notice is prescribed by statute in Massachusetts ; it is therefore left to the discretion of the judge to whose jurisdic- tion the subject appertains ; the sufficiency of the notice in other respects is also with- in the discretion of the judge of probate ; and where no appeal is taken from his de- cree it is not open to the parties to con- test the sufficiency of the notice. Hubbard J. in Marcy v. Marcy, 6 Met. 367, 368. See Wells v. Child, 12 Allen, 330, 332. As to what is sufficient evidence that no- tice of proceedings had been given, to sus- tain a decree admitting a will to probate, and whether the fact of notice should ap- pear in the decree, see Marcy v. Marcy, 6 Met. 360.] (p) In the Goods of Benbow, 2 Sw. & Tr. 488. (g) Bell V. Armstrong, 1 Add. 370; Merryweather v. Turner, 3 Curt. 802; Bell V. Eaisbeck, Privy Council, 20th Peb. 1844, cited 3 Curt. 814, per curiam. See, also, Gascoyne v. Chandler, 2 Cas. temp. Lee, 242. (r) 1 Add. 374, in Sir J. NichoU's judg- ment in the case of Bell v. Armstrong. [336] 380 OF PROBATE, [PT. I. BK. IV. 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 ac- quiescence, unaccounted for by any special circumstances, and acts done by a next of kin under the provisions of the will, may (if no fact appear which excites a reasonable suspicion of the genuine- ness or validity of the will) amount to such a waiver of his rights as to preclude him from putting the will in suit, (s) 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 hus- band, 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, (i) And before a legatee, who has received all or part of his legacy, but he can be permitted thus to dispute the will, he must bring his legacy^ into court the amount of the legacy paid to him, to abide into court : ^1^^ g^ent of the suit, (w) * A legatee who has renounced administration cum testamento legatee annexo, as legatee and next of kin, whereupon it has been renounced granted to another, is not barred by such renunciation tra"ion^" f'^°™ contesting the will ; and he may therefore cite such with the administrator to bring the letters of administration into will an- ° _ nexed : court to prove the will by witnesses, or to show cause why the deceased should not be pronounced to have died intestate, and why administration should not be granted to himself. (t>) But when the executor propounds and proves the will, per if the ex- testes, of himself, duly citing the next of kin " to see pro- self'pro'-'"" ceedings," all next of kin so cited are, generally speak- wiii"a ne'xt ^°^' ^^^^^^7 forever barred ; and if he so propounds of kin, and proves the will against certain only of the deceased's though not , , . . , - . ■' cited, can- next of kin. Without having cited them all to see pro- proof, if ceedings, the others, even though uncited, if to a certain (s) Hoffman v. Norris, 2 Phillim. 230, Add. 256, 257 ; [Hamblett v. Hamblett, 6 in a note to Newell v. Weeks ; Braham v. N. H. 333.] Secus, where the legatee is Burchell, 3 Add. 257, 258. a minor, Goddard v. Norton, 5 Notes of (t) Merryweather v. Turner, 3 Curt. Cas. 76. 802. (a) Gascoyne v. Chandler, 2 Cas. temp. {«) 1 Add. 374; Braham v. Burchell, 3 Lee. 241. [337] CH. II. § IV. j IN SOLEMN FORM. 381 extent privy to and aware of the suit, shall not put the p"^? '<> '^ J / -r the first executor on proof per testes of the will, so once already suit, proved, a second time, (a;) It is clearly established that before a person can be permitted to contest a will, the party propounding has a right to call on him to show that he has some interest, (y) Any interest, however slight, and even, it seems, the bare pos- sibility of an interest, is sufficient to entitle a party to yf^^^^^ j^_ oppose a testamentary paper. Thus where a testator dis- posed * of all his personal estate by his will and gave his terest a party must nave to en- real estate, but none of his personal, to his brother's oppose a will. children, and by a codicil he gave them pecuniary lega cies, revoking the devise to them of the real estate which was of greater value than the legacies ; it was held that they might op- pose the codicil alone, notwithstanding their only right to a share of the personalty was under it. (2) Though a next of kin may, as such, oppose all the testamentary papers, he has not a right to oppose any particular one he may think fit ; for some interest in it, however remote, is necessary, (a) A creditor has only a right to have a constat of the estate of the deceased, to see whether there are assets sufficient to pay ^ creditor the debts ; but he cannot controvert the validity of a will ; for it is indifferent whether he shall receive his debt from an executor or an administrator ; and if a creditor was ad- mitted to dispute the validity of a will, it would create infinite trouble, expense, and delay to executors. (6) cannot dis- pute the validity of a will, un- less lie has had a grant of adminis- tration. (x) Newell v. Weeks, 2 Phillim. 224; Bell V. Armstrong, 1 Add. 372. Accord- ingly it was held by Sir C. Cresswell, that a next of kin, though not cited to see pro- ceedings, and not having intervened, if in fact cognizant of a suit between the execu- tor and another next of kin, ending in the establishment of the will, is not at lib- erty in any way to oppose probate of such will being taken ; and where on a verdict, the court had pronounced for a will and a next of kin so situated had entered a ca- veat, the court directed probate to issue, in spite of the caveat, and condemned the next of kin in costs. Ratcliffe v. Barnes, 2 Sw. & Tr. 486. See Wytcherley v. An- drews, L. R. 2 P. & D. 327. (y) Hingeston v. Tucker, 2 Sw. & Tr. 596. [See, as to interest, post, 534, note (yl), 536, note (Z), 574, note (jri).] But when two persons oppose a will, one can- not call upon the other to propound his interest. Hingeston v. Tucker, 2 Sw. & Tr. 596. (2) Kipping V. Ash, 1 Robert. 270. But see the observations of Sir C. Cress- well on this case in Crispin v. Doglioni, 2 Sw. & Tr. 17. See, also, Dixon u. AUin- son, 3 Sw. & Tr. 672. (a) Baskcomb v, Harrison, 2 Robert. 118; S. C. 7NotesofCas. 275. (b) Burroughs v. Griffiths, 1 Cas. temp. Lee, 544 ; Menzies v. Pulbrook, 2 Curt. 845. [338] 382 OF PEOBATE. [PT. I. BK. IV. But when administration has been granted to a creditor, he may oppose a will ; he is the same for this purpose as the next of kin. (c) And he may contest a will without costs ; because he is the ap- pointee of the court and defends in that character, and does not appear simply as a creditor. (cZ) If nobody who has a right appears to oppose the wjU, the court is not obliged, ex officio, to order a citation to issue to call the next of kin. (e) A legatee ^ legatee cannot set up a will, after it has been liti- cannot set ° ^ n ^ • \ up a will gated between the executor and next of km, or between been pro- the cxecutor and the executor of another will, and pro- agains't nounccd * against, unless he can show the parties agreed Mgatedby ^^ ^^^ ^^^^ *^® ^'^^^ ^^ ^^^'°'^ °^ coUusion. (/) But if next of lie is afraid the executor will not do justice, he may in- the execu- tervene for his interest pending the suit. (^) other will. According to the old practice of the prerogative court. Next of kin when an executor has been called upon by a next of to costs'^ kin to prove the will per testes, and has sufficiently when he proved it, if the party who caused him to do this merely compels . ■ . , the execu- cross-examined the witnesses produced in support of the per testes: will, he is not Subject to costs, generally speaking. (K) A case, notwithstanding, may happen, in which a next of kin may exercise his undoubted right in this matter so vexatiously as to make himself responsible, if not wholly, in part for the costs of his opponent. («) And there is a difference between next of kin, (c) 1 Phillim. 159, 160, per curiam. Add. 229; Farlai- v. Tarlar, 1 Sw. & Tr. (d) 2 Curt. 851. 124; Summerell v. Clements, 3 Sw. & Tr. (c) 1 Cas. temp. Lee. 544. 39, ace. (/) Bittlestou V. Clark, 2 Cas. temp. (i) 3 Add. 57. As where a next of kin Lee, 250 ; Hayle v. Hasted, 1 Curt. 236 ; or acquiesced in the probate, and received his unless, as it is said, there has been neglect legacy, and then after a considerable iu- or mismanagement in the conduct of the terval cited the executor to prove the will. suit. 1 Curt. 240 ; [Gray J. in Waters v. Bell v. Armstrong, 1 Add. 375. And Stickney, 12 Allen, 5, 6.] where a next of kin and residuary legatee {g) 2 Cas. temp. Lee, 250. under a prior will, suing in forma pauperis, (A) 1 Oughton, tit. 6, s. 7 ; Reeves v. put the executor of a later will to proof Freeling, 2 Phillim, 56 ; Urquhart v. per testes, after seven years' acquiescence in Fricker, 3 Add. 56. Secus autem si propo- the probate, and the proofs then adduced suerit, ac in probanda de/ecerit; tunc enim were perfectly clear and satisfactory; the pars victa erit condemnanda in expensis : court condemned the party in costs, sus- saltem a tempore propositionis hujusmodi. 1 pending the taxation while he continued a Oughton, tit. 6, s. 8 ; Evans v. Knight, 1 pauper. Wagner v. Mears, 2 Hagg. 524. [339] CH. II. § IV.] IN SOLEMN FORM. 383 who are favorites of the court, and the legatees under gems, of a a former will ; for, though such a legatee may call for ^^^^l^\ proof, per testes, of a will, by which his interests under a P"<"^ ^'" ' former will are prejudiced, and may interrogate the witnesses pro- duced in support of that will, he does this at the risk of being con- demned in costs, if the court has reason to suspect him of undue litigation. (^) * Where an executor, who has obtained probate of a And so it is j; -11 T : , . . as to an ex- tormer will, or a creditor who has a grant of admmistra- ecutor who tion, opposes a later will, he has the same right to do so tained pro- without being subject to costs, as where a will is opposed former * by next of kin. (Z) But costs may be decreed against a ^^^1^°^^ party who has taken probate of a will which he knew who has a was not the last will of the deceased, (wi) adminis- By rule 41 (contentious business), " In all cases the party opposing a will may, with his plea, give notice to ^"'^ *^- the party setting up the will, that he merely insists on tiouspro- the will being proved in solid form of law, and only intends to cross-examine the witnesses produced in support of the will ; and he shall thereupon be at liberty to do so, and to be sub- ject to the same liabilities in respect of costs as he would have been under similar circumstances according to the practice of the prerogative court." (w) The subsequent practice has been that a next of kin who avails himself of this rule shall be in the same position as a subsequent next of kin in the prerogative court, i. e. not liable to practice, costs ; but if he calls witnesses in support of pleas of undue exe- cution, and incapacity, or the like, his liability to costs will be in the discretion of the court, and he will not, generally speaking, be condemned in costs, if there was a reasonable ground for liti- gation. ((?) But a failure to establish pleas of undue influence (k) Urquhart v. Fricker, 3 Add. 58. (n) If the party opposing a will does See, also, on this subject, Mansfield v. not deliver the notice of his intention not Shaw, 3 Phillim. 22 ; Boston v. Fox, 29 to call witnesses until after he has delivered L. J., P. M. & A. 68, from which cases it his plea, he loses the protection against con- appears that the executor of a former will demnation in costs given by the above has the same right as a next of kin. rule, and the question of costs is left to the (I) 1 Phillim. 160, note (e) to Dabbs v. discretion of the court. Bone v. "Whittle, Chisman. See, also, Lovett v. Harkness, L. R. I P. & D. 249. 1 Cas. temp. Lee, 332. (o) Bramley v. Bramley, 3 Sw. & Tr. (m) Martin v. Robinson, 2 Cas. temp. 430. Lee, 535. [340] 384 OF PROBATE. [PT. I. BK. IV. and fraud will, as a general rule, be followed by condemnation in costs. (^) * Very material alterations in the law, with respect to probate . in solid form of wills relating to real estate, have been Vict. c. 77, effected by the court of probate act, 1857 (20 & 21 Vict. Heir,&c. c. 77). One of the great objects of the act was to pre- whenawili "v^ent the possibility of a double trial on the same will. is proved in solemn form af- fecting real estate. And accordingly it is enacted by sect. 61, that where the validity of a will affecting real estate is disputed on proving it in solemn form or any other contentious cause, the heir-at-law, devisees, &c. shall be cited. And by sect. 62, after proof in solemn form, or where the validity of the will is otherwise decided on, the decree of the court shall be binding on all persons interested in the real estate. But by sect. 63 it is provided that the probate, decree, or order of the court shall not in any case affect the heir or any person in respect of his interest in real estate, unless such heir or person has been cited or made party to the proceedings, or derives title under or through a person so cited or made party. These sections and others connected with and follow- ing them will be found stated verbatim, and the whole subject of the probate of disputed wills affecting real estate will be consid- ered, in a subsequent part of this treatise, (g) together with the inquiry as to the effect of probate generally. The position of an heir-at-law cited under the 61st section is Liability to similar to that of the next of kin when cited to see pro- heir-a't-iaw ceedings in the prerogative court, and therefore, though when cited. j[f jj^ contents himself with putting the executor to proof S. 62. Where the validity of the will is decided on, the decree of the court is to be binding on the persons interested in the real estate : S. 63: provided they have been cited. (p) Summerell v. Clements, 3 Sw. & Tr. 35 ; Smith v. Smith, L. R. 1 P. & J). 239 ; Bone o. Whittle, L. K. 1 P. & D. 249. [Where cases are contested, in Massachu- setts, either before the probate court or su- preme court of probate, costs in the discre- tion of the court may be awarded to either party, to be paid by the other, or to either or both parties, to be paid out of the estate which is the subject of the controversy, as justice and equity shall require. Genl. Sts. c. 117, § 25. See Woodbury v. Obear, 7 Gray, 472, in which it was held that the executor named in an instrument which [341] has been approved as a will by the judge of probate is not to be charged with the costs of an appeal, in which it is found that the will was made under his undue in- fluence. In Waters v. Stickney, 12 Allen, 17, Gray J. said: ''As the case involves an important question of law, upon which the appellant might reasonably desire the opinion of this court as the supreme court of probate, the common rnle in probate causes must be followed, and no costs al- lowed to either party." Osgood v. Breed, 12 Mass. 536.] (?) Pt. I. bk. VI. ch. I. CH. II. § V.J EVIDENCE IN TESTAMENTARY CAUSES. 385 of the will, and cross-examining the witnesses, is not liable to costs ; if he places pleas of undue influence and fraud on the record, and fails in proof of them, he is liable to costs, (r) The inquiry as to the cases in which costs will be de- When ^ •' costs de- creed out of the estate of the deceased, and the general creed out question as * to when the unsuccessful party will be con- tate, when demned in costs, will be discussed hereafter, (s) by thlun- It remains to be mentioned in this place that by rule partv*^*"' 78 (contentious business), it is ordered that "Any per- son proceeding to provea will in solemn form, or to revoke Order for the probate of a will, may, if the will affects real estate, heir, &c. apply to the judge, or to a registrar, in his absence, for an order authorizing him to cite the heir or heirs -at-law or other person or persons having or pretending interest in such real estate to see proceedings ; and the judge or registrar on being satisfied by affi- davit that the will in question does affect or purport to affect the real estate, will make an order authorizing the person applying to cite the heir or heirs-at-law or other such person or persons as aforesaid ; provided always, that the judge may give any special directions as to the persons to be cited which he may think the justice of the case requires." (i) SECTION V. Evidence in Testamentary Causes. It is now proposed to consider some rules of the law of evi- dence, formerly prevalent in the ecclesiastical court, with By the law- respect to the admission of a disputed will to probate, (i^) ciesiasticai (r) Fyson v. Westrope, 1 Sw. & Tr. 279. tions do not seem quite consistent. The (s) Pt. I. bk. IV. ch. II. § VII. former is more imperative in its terms than (I) Where an executor propounds the the latter, latter of two wills, the court will direct a (i^) [The burden is upon the party offer- citation to issue against the devisees under ing the will for probate to show that the the earlier will and against the heir-at-law, instrument propounded is the last will and although already before the court as de- testament of the testator. Eoberts v. fendant in the suit. Lister v. Smith, 3 Sw. "Welch, 46 Vt. 164 ; Williams v. Robinson, & Tr. 53. The fact of one co-heir being 42 Vt. 658 ; Delafield v. Parish, 25 N. Y. an infant and child of a plaintifiE is no 9, 97. And in this as in all other ques- ground for the court refusing to allow such tions involved, the trial proceeds as in an co-heir to be cited. Nichols v. Binns, 1 ordinary civil action, each party produc- Sw. & Tr. 19. In this case Sir C. Cress- ing evidence to maintain the issues on his well observed, that the 61st and 63d sec- part. See Hastings v. Eider, 99 Mass. VOL. 1. 25 [342] 386 OF PROBATE. [PT. I. BK. IV. By the general law of the ecclesiastical courts, one wit- ness did not make full proof ; and if the spiritual court refused to admit the testimony of a single witness, no mandamus or * prohibition would lie ; (m) for where the courts, one witness is not suffi- cient with- out other adminicu- lar proof. 625. And the burden of proof remains with the person offering the will through- out the trial. See Theological Seminary at Auburn v. Calhoun, 25 N. Y. 422 ; Col- lier V. Idley, 1 Bradf. Sur. 94 ; Rider v. Legg, 51 Barb. 260; Nexsen u. Nexsen, 2 Keyes (N. Y.), 229; Isham v. Gibbftns, I Bradf. Sur. 69; anle, 21, notes (i?), (a;'); 112 et seq. The course of pro- ceeding, in Michigan, in a case of con- tested sanity of a testator, is very fully and clearly stated by Mr. Justice Cooley, in Taff V. Hosmer, 14 Mich. 309, 315-318. As it very much resembles the course of proceeding in like cases in many other states, it may, perhaps, properly be quoted at considerable length. The learned judge says : " It appears that the proponents, being allowed to go forward with their evi. practice followed by the circuit judge, in this case, is that which has always pre- vailed in this state. The party assuming the burden of establishing a will, has not supposed himself bound, in his .opening, to go farther than to give evidence by the subscribing witnesses, of those facts which would make out, prima facie, a valid testa- mentary instrument, and has left all fur- ther evidence on the subject of mental capacity to be brought in by way of an- swer to that adduced by the contestant. The evidence at the opening has usually been of a formal character, and the pro- ponent has confined himself to inquiries of a general nature respecting the signing and attestation, and whether, at the time, the party appeared to underetand the business in which he was engaged. He has not been dence, confined it to an examination of required to put in his whole case on the the subscribing witnesses, who testified to the formal execution of the will, and that Jackson [the testatoi'] at the time was of sound mind. The contestant then put in evidence tending to show a want of testa- mentary capacity, and rested his case. The proponents were then allowed by the court, against the objection of the contest- ant, to go fully into the question of sanity ; not by way of reply merely, but to put in affirmative evidence as fully as if the ground had not been covered by their evi- dence at the outset. And at the conclu- sion of the proofs, the proponents were al- lowed also, against objection, to open and close the argument. It is inferrible from the record that the judge did not allow the proponents to put in the affirmative evi- dence of Jackson's sanity, after the con- testant had rested, as a matter of discre- tion merely, but on the ground of legal right. There can be no doubt that the question of mental capacity before resting, and the cases are probably exceptional, where he has gone beyond calling the sub- scribing witnesses, unless they failed to testify to such facts as would establish a prima facie case. So far as the order of proof is concerned, we cannot, in the least, doubt that this practice is altogether sensible and correct. To prove that the decedent was not insane, is to prove that an exceptional state of facts did not exist ; in other words, it is to prove a negative ; and on general principles very slight evi- dence only should be demanded of the party called upon to take the burden of proving such a state of facts. Stephens V. Young, 9 Mich. 500. And this evidence is generally with entire propriety confined to the time when the will was executed ; the subscribing witnesses being allowed to express their opinions upon what they ob- served at that time, however limited may (u) Chadron v. Harris, Noy Eep. 12. Notes of Cas. 427, 428; S. C. 1 Robert. Godolpb. pt. 1, c. 21, s. 1 ; 18 Vin. Abr. 165 ; Taylor v. Taylor, 6 Notes of Cas. Prohibition, Q. 7; Evans v. Evans, 3 558. [343] CH. II. § v.] EVIDENCE IN TESTAMENTARY CAUSES. 387 matter is wholly of ecclesiastical cognizance, as the probate of wills, although the proceedings of the spiritual court were con- have been their opportunity for observa- tion, and not being required to go farther, except upon cross-examination. The de- fence then takes the case, and enters upon proof of the alleged incompetency. But now, although all the proofs are to point to the decedent's condition at the moment when the will was executed, from the very nature of the case the evidence will almost always immediately diverge widely from that which has been put in by the propo- nent, and instead of being confined to re- butting fhe prima facie case by the observa- tion of other witnesses at or near the same period of time, it will bring into the case new facts, exceedingly diversified in their character, relating to periods of time widely apart, and which could not possibly be anticipated in all their particulars by the proponent when he gave his testimony. The contestant's evidence, instead of as- suming the ordinary features of rebutting evidence, which is generally directed to the same point of time as that which it re- buts, now brings before the court the whole life of the decedent for a long period of time, and a long array of circumstances not in the least connected with those stated by the witnesses in chief, except as infer- entially they may tend to show that the decedent's condition could not have been what was stated by those witnesses, inas- much as it appeared to be different at other periods. How wide shall be the range of inquiry by the defence, is a question ad- dressed to the judgment and discretion of counsel, and not at all dependent upon the evidence put in by the proponent. It cov- ers facts, observations, and opinions, and in cases of difficulty, not even the contest- ant himself could anticipate before enter- ing upon his case, the precise bounds it would be proper to set to his inquiries, or how far the minute facts and apparently trivial circumstances testified to by one witness might make it important to put others upon the stand. The defence, there- fore, are seeking to disprove the main fact shown by the proponent by proving a vast number of new facts relating to other times and conditions ; the testimony being affirmative in its character, though directed in its inferences to the establishment of the negative fact of mental Incompetency. All rules of evidence are designed to elicit truth ; and it is obvious that to require the proponent to anticipate, at his peril, the case that would be shown by the defence, would, in many cases, be equivalent to a denial of justice. For although there would still be a right to give rebutting evidence, this, in the sense in which rebut- ting evidence must then be understood, would be of little value, since it must be confined to disproving the facts and cir- cumstances shown by the defence. But the facts in such a case are only important for the inference to be drawn from them ; and the inference must generally be re- butted, not by disproving those facts, but by showing others from which the contrary inference is drawn. And what other facts, or even what class of facts, it shall be im- portant to show, cannot be known until the defence is in, so that if the proponent should be required to go forward with all his proofs, he would often be found to have occupied the time of the court with evidence made immaterial by the course subsequently taken by contestant's proofs, and which entirely failed to anticipate the defence. In point of fact, the evidence which the proponent puts in at the outset, only answers to that inference which the law draws in favor of sanity when any other act is in question ; and the course which the case assumes is not different from what it would be if the proponent could rest upon a presumption of compe- tency until it was overthrown by the con- testant's proofs. Where a party claims through a deed, which is assailed for in- competency in the grantor, the burden is upon him to establish the deed; but his prima facie case is made out when he has put in the formal proofs of execution^ 388 OF PROBATE. [PT. I. BK. IV. trary to the common law, yet no mandamus or prohibition should issue, (a:) And if there were an appeal to the court of delegates (i. e. by stat. 2 & 3 W. 4, c. 92, to the queen in council), the common law judges, who were appointed members of such court, were bound, in such matters, by the rules of the civilians, (y) But it must not be supposed that, by the ecclesiastical law, two witnesses were required to each particular fact, nor to every part of a transaction ; for it often happened, that to the contents of a will, or to instructions, there was only one witness, — the confi- dential solicitor, or other drawer ; but there were, and must have been, adminicular circumstances to the transaction ; such as the expressed wishes of the testator to make his will, the sending for the drawer of it, his being left alone with the deceased for that known purpose, some previous declarations or subsequent recog- nitions, some extrinsic circumstances, in short, showing that a tes- tamentary act was in progress, and tending to corroborate the act itself, (a) * In Moore v. Paine, (a) the testatrix was entirely blind ; there were three subscribing witnesses to the will, but only one of them (viz, the writer, who wa's of entire credit, and wholly unconcerned as to the event of the suit) could account for the instructions, for these being supplemented by the legal in- or construe the act of parliament other- ference of competency. If the defence wise than the common law requires. Juxon then gives evidence tending to show men- v. Byron, 2 Lev. 64; 1 Show. 172; Carth. tal unsoundness, the plaintiff cannot be 142 ; Full v. Hutchins, Cowp. 424 ; Bree- preeluded from going fully into the ques- den v. Gill, 1 Ld. Ilaym. 221 ; Gould v. 'tion with his proofs, by the fact that at the Gapper, 5 East, 345 ; Com. Dig. Prohibi- outset a case was made in his behalf which tion, G. 23 ; B. N. P. 219 ; 1 Robert. 1 74. .covered that point." See ante, 21, note (y) Twaites v. Smith, 1 P. Wms. 10. (a*) ; post, 360, note (u) ; Kempsey v. Mc- [In Hastings v. Eider, 99 Mass. 625, Gray Ginniss, 21 Mich. 123, 148,149; Beaubien J. said: "Evidence in probate cases in V. Cicotte, 12 Mich. 459, and numerous this commonwealth is regulated by the cases there cited ; Aiken v. Weckerly, 19 common law, which has not adopted the Mich. 482.] looser practice, derived from the civil law, (x) Shatter v. Friend, 1 Show. 172; S. of the ecclesiastical courts upon this sub- C. Carth. 142; Anon. 1 Freem. 290; jcct. Eveleth t;. Eveleth, 15 Mass. 307; Breedenw. Gill, 1 lid. Eaym. 221. But if Wright v. Tatham, 5 CI. & Fin. 670." a matter cognizable at common law arises See Peebles v. Case, 2 Bradf. Sur. 226.1 incidentally in an ecclesiastical suit, as (z) Theakston u. Marson, 4 Hagg. 314; where the construction of an act of parlia- 1 Robert. 173. See Mackenzie k. Yeo 3 ment comes in question, a release is Curt. 125; In the Goods of Winter, 4 pleaded, &c. the ecclesiastical court shall Notes of Cas. 147 ; Farmer ». Brock Dea. be prohibited, if they proceed to try con- & Sw. 187 ; [In the Matter of the Will of trary to the rules and customs of the com- John Kellum, 52 N. Y. 517.1 mou law ; as if they refuse one witness, (a) 2 Cas. temp. Lee 595 [344] CH. II. § v.] EVIDENCE IN TESTAMENTARY CAUSES. 389 the reading of the will to the testatrix, and her approbation of it, and for the identity of the paper ; the other two only deposing to the publication of it by her as her will, but they did not hear it read to her, nor did they know the contents of it. The ca- pacity of the testatrix was fully proved, and that she had made a former will, which differed from this chiefly in the quantum of the legacies, which were smaller in that than in this. And Sir George Lee was clearly of opinion that this will was sufficiently proved ; and the learned judge observed, that the proof of wills with us is by the jus gentium, and by that law one witness is sufficient. There should be, indeed, some adminicular proof to corroborate the witness, which, in the present case, arose from the conformity of the former to the present will, and from a declara- tion which it appeared in evidence the deceased had made, that she believed some of her relations did not approve of her will, which was some sort of recognition of this will. This cause was appealed to the delegates, where the sentence was confirmed. And now, by court of probate act, 1857 (21 & 22 Com-'^of Vict. c. 77, s. 33), "The rules of evidence observed in act, 1857, the superior court of common law at Westminster shall Rules of be applicable to and observed in the trial of all ques- common tions of fact in the court of probate." QaF) ^tJhTob-^ Upon the principle above stated, it was held that the served, question of the competency of witnesses was to be de- Compe- . . . . tency of cided according to the rules of the ecclesiastical, and not witnesses. of the common law. Thus, in the case of Twaites v. Smith, (6) there was an appeal to the delegates from the prerogative court of York; and the ground of appealing was, that the testimony of the children of the residuary legatee had been * admitted, who, by the ecclesiastical law, are incompetent, and the judges dele- gate, being of opinion that the rule of that law, and not of the common law, must prevail, reversed the sentence given at York. By Stat. 1 Vict. c. 26, s. 17, it is enacted, " That no person shall, on account of his being an executor of a will, be incompe- Compe- ° .J. tency of tent to be admitted a witness to prove the execution or executor. (fli) [See the remarks of the judges, upon 701, 702, 719, 726, 729, 748, 749, 768, the authority of the rules of the ecolesias- 769.] tical court in the courts of common law, in (6) 1 P. "Wms. 10. Wright V. Tatham, 5 CI. & Fin. 670, 692, [845] 390 OF PROBATE. [PT. I. BK. IV. 1 Vict. such will, or a witness to prove the validity or invalidity "' ^' thereof." (Ji) This section rendered an executor, who was also entitled to a legacy in that character, a competent witness to support the will, Compe- ^^ ^® ^^^ released his legacy, (c) tencyof And now, by Stat. 6 & 7 Vict. c. 85 (which was held witnesses •' . . , . . , and parties to apply to proceedings ill the ecclesiastical court), (d) Vict. c. 85, competency is conferred on interested witnesses gener- Vict. cf 99, ally ; and by stat. 14 & 15 Vict. c. 99, s. 2, on parties I7vil''° ' to s^its ; and by stat. 16 & 17 Vict. c. 83, s. 4, on hus- "=■ 83- band and wives of parties, (^d^} (61) [Harper v. Harper, 1 N. Y. Sup. Ct. 351. An executor named in a will is in Massachusetts not only a competent sub- scribing witness tliereto, but he may also testify in support thereof, under recent statutes, although he has not declined the trust. Wyman v. Symmes, 10 Allen, 153 ; Sears v. Dillingham, 12 Mass. 358. See Dieterich's Estate, 1 Tuck. (N. Y.) Sur. 129; Levy's Estate, 1 Tuck. (N. Y.) Sur. 87; McDonough v. Louhglin, 20 Barb. 238; Pruyn v. Brinkerhoif, 7 Abb. Pr. (N. S.) 400 ; S. C. 57 Barb. 176 ; Haus v. Palmer, 21 Penn. St. 298 ; Post v. Avery, 5 Watts & S. 510; Filson v. Filson, 3 Strobh. 288 ; Workman v. Dominick, 3 Strobh. 589; Morton v. Ingram, 11 Ired. 368 ; Moore v. Allen, 5 Ind. 521.] (c) Munday v. Slaughter, Prerog. 1839, 2 Curt. 72. [See Harleston v. Corbett, 12 Rich. Law (S. Car.), 604.] (rf) Burder v. Hodgson, 4 Notes of Cas. 491 ; Sanders v. Wigston, 5 Notes of Cas. 78, 83, 84 ; S. C. 1 Robert. 460 ; Cullum I'. Seymour, 1 Robert. 772, by Sir H. J. Fust. (rfi) [See Lawyer v. Smith, 8 Mich. 411 ; Montgomery v. Perkins, 2 Met. (Ky.) 448 ; Harper v. Harper, 1 N. Y. Sup. Ct. 351. By a late statute of Massachusetts, no person of sufficient understanding shall be excluded from giving evidence as a wit- ness in any civil proceeding, in court, or before a person having authority to re- ceive evidence ; subject to the qualification that neither husband nor wife shall be al- lowed to testify as to private conversations with each other ; and the conviction of a witness of any crime may be shown to affect his credibility. A party to a cause who shall call the adverse party as a wit- ness, shall he allowed the same liberty in the examination of such witness as is now allowed upon cross-examination. St. Mass. 1870, c. 39.3, §§ 1, 3, 4. See Metier V. Metier, 3 C. E. Green (N. J.), 270, 276; S. C. 4 C. E. Green (N. J.), 457 ; Harrison V. Johnson, 3 C. E. Green (N. J.), 420 ; Bird «. Davis, 1 McCarter (N. J.), 467; Marlott V. Warwick, 3 C. E. Green (N. J.), 108 ; Poody v. Pierce, 9 Allen, 141 ; Bailey t'. Myrick, 52 Maine, 132; Woburn V. Henshaw, 101 Mass. 193; Wyman v. Symmes, 10 Allen, 153 ; 1 Dan. Ch. Pr. (4th Am. ed.) 886, and notes; Com- monwealth V. Hall, 4 Allen, 305; Com- monwealth V. Gorham, 99 Mass. 420. As to what are to be considered private con- versations between husband and wife, within the exclusion of the above statute, see French v. French, 14 Gray, 186, 188; Robinson v. Talmadge, 97 Mass. 171. The above statute of Massachusetts (§ 2) pro- vides that nothing in the act shall ap- ply to the attesting witnesses to a will or codicil ; but it seems that the exception is restrained in its operation to cases wher6 the attesting witnesses are acting strictly in that capacity. Wyman v. Symmes, 10 Allen, 153. See Cornwell v. Wooley, 47 Barb. 327. By recent legislation in many other states, interest no longer disqualifies a person to testify as a witness. But in states where there has been no such legis- CH. II. § v.] EVIDENCE IN TESTAMENTARY CAUSES. 391 By Stat. 17 & 18 Vict. c. 47, " In any suit or proceeding de- pending in any ecclesiastical court in England or Wales, 17 & is the court (if it shall think fit) may summon before it wkn "sseJ' and examine, or cause to be examined, witnesses by ^^^^on^^ word of mouth, and either before or after examination P^ exam- by deposition or affidavit ; and notes of such evidence voce. shall be taken down in writing by the judge or registrar, or by such other person or persons, and in such manner, as the judge of the court shall direct." And now, by stat. 20 & 21 Vict. c. 77, s. 31, " Subject to the regulations to be established by such rules and orders jj^^^ ^^ as aforesaid, the witnesses, and where necessary, the par- taking evi- ties, in all contentious matters, where their attendance matters iindsr can be had, shall be examined orally by or before the court of judge in open court ; (^cP) provided always, that, subject act, isir to any such regulations * as aforesaid, the parties shall ^' ^^' be at liberty to verify their respective cases, in whole or in part, by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party, be subject to be cross- examined by or on behalf of such opposite party, orally in open court as aforesaid ; and after such cross-examination may be re- examined, orally in open court as aforesaid, by or on behalf of the party by whom such affidavit was filed." And by sect. 32, it is provided " That where a witness in any such matter is out of the jurisdiction of the court, or Sect. 32. where, by reason of his illness or otherwise, the court issue com- shall not think fit to enforce the attendance of the wit- "ivf orders ness in open court, it shall be lawful for the court to l°l^g^'^[ order a commission to issue for the examination of such witnesses abroad or witness on oath, upon interrogatories or otherwise, or if wiio are ■ 1 • 1 ■ • T J- ji ±^ _L unable to the Witness be withm the jurisdiction 01 the court to attend. order the examination of such witness on oath, upon interrogato- ries or otherwise, before any officer of the said court, or other person to be named in such order for the purpose ; and all the powers given to the courts of law at Westminster by the acts of the thirteenth year of King George the Third, chapter sixty-three, and of the first year of King William the Fourth, chapter twenty- lation, the same rule as to the incompe- (d^) [This is generally the mode of ex- tency of witnesses from interest, governs, amining the witnesses and parties in all in the probate of -wills, as in other cases.] cases in the American States.] [346] 392 OF PROBATE. [ft. I. BK. IV. two, for enabling the courts of law at Westminster to issue com- missions and give orders for the examination of witnesses in actions depending in such courts, and to enforce such examination, and all the provisions of the said acts, and of any other acts for en- forcing or otherwise, applicable to such examination, and the wit- nesses examined, shall extend and be applicable to the said court of probate, and to the examination of witnesses under the com- missions and orders of the said court, and to the witnesses exam- ined, as if such courts were one -of the courts of law at West- minster, and the matter before it were an action pending in such court." Attesting The general rule is, that if a party be put to proof of witnesses : a will, he must examine the attesting witnesses, ((i^) ((/') [These witnesses are placed around the testator to ascertain and judge of his capacity, and to see that no fraud is prac- tised upon him in the execution of his will ; and the heir or other person inter- ested has a right to insist on the testimony of all the witnesses if they are alive and within reach of the process of the court. Chase o. Lincoln, 3 Mass. 236, 237 ; 2 Greenl. Ev. §§ 691, 692 ; Brown v. Wood, 17 Mass. 72, 73; Sears v. Dillingham, 12 Mass. 358; McKeen v. Frost, 46 Maine, 239, 244, 245 ; Patten v. Tallman, 27 Maine, 29 ; Bailey v. Stiles, 1 Green Ch. 231, 232; Rush v. Parnell, 2 Harring. 448 ; Jones v. Arterbnrn, 11 Humph. 97; Apperson o. Cottrell, 3 Porter, 51 ; Nalle V. Fenwiclc, 4 Rand. 585 ; Jackson v. Vick- ory, 1 Wend. 406; Fetherly v. Waggoner, U Wend. 599; Smith i will for him, and may say, "I do not know what you have put down, but I am quite ready to execute it," and such a will would be admitted to probate. Per Sir C. Cresswell, 3 Sw. & Tr. 38. Accordingly, that learned judge held a plea that the alleged codicil was not prepared in conformity with the in- tentions of the deceased, and the deceased, at the time of the execution of the al- leged codicil, was ignorant of the contents thereof, to be bad on demurrer. Cunliffe V. Cross, 3 Sw. & Tr. 37. See, also, Mid, dlehurst v. Johnson, 30 L. J., P. M. & A. 14. But see, contra, Hastelow v. Stobie, 35 L. J., P. M. & A. 18 ; S. C. 11 Jur. N. S. 1039, where Sir J. P. Wilde held a plea " that the deceased did not know and approve of the contents of the will " to be good. See, also, Cleare v. Cleare, L. E. 1 P. & D. 655 ; Atter v. Atkinson, L. R. 1 P. & D. 665 ; Goodacre v. Smith, L. E. 1 P. & D. 359 ; [Barry v. Boyle, 1 N. T. Sup. Ct. 422.] But it may be doubted whether the view taken by Sir C. Cresswell is not more correct. It is surely a somewhat harsh construction of the law that a man shall not be allowed to confide in his friend or solicitor and depute him to di'aw up his will, and adopt it when so drawn up, without ascertaining what the contents of it are; particularly in wills VOL. I. 26 containing complicated limitations it would seem to be unjust to require that the testator should understand each limi- tation, which the solicitor in whom he has confided has thought pcoper to insert. [In Pettes v. Bingham, 10 N. H. 514, is- sue was taken on the question whether a testator knew the contents of a paper propounded for probate as his wiH, at the time when he executed it. On one side it was alleged that he did not, on the other that he did. The jury found that they had no evidence that he did not know the contents. On this finding the court sus- tained the will ; upon the ground that the party alleging that the testator did not know the contents of his will had the bur- den of proof; which on the finding had not been discharged. Parker C. J. said, " The executor was not bound to offer direct evidence on this point in the first instance, farther than the production of the will and the proof of its execution. In order to prove the will in the probate court, he was bound to show that the tes- tator executed and published it, in the presence of the witnesses. He was not bound to make inquiry of the subscribing witnesses, or of other witnesses, to show that the testator knew the contents of it. That would be presumed from the due ex- ecution and publication.'' Harrison v. Rowan, 3 Wash. C. C. 580, 584, 585 ; Day V. Day, 2 Green Ch. (N. J.) 549 ; Downey V. Murphey, 1 Dev. & Bat. 87 ; Carr <;. M'Camon, 1 Dev. & Bat. 276 ; Smith v. Dolby, 4 Harring. 350 ; McNinch «. Charles, 2 Rich. (S. Car.) 229; In re Maxwell's Will, 4 Halst. Ch. (N. J.) 251 ; Hoshauer v. Hoshauer, 26 Penn. St. 404 ; Vernon v. Kirk, 30 Penn. St. 218 ; Stew- art V. Lispenard, 26 Wend. 287, 288.] [351] 402 OF PROBATE. [ft. I. BK. IV. where the legatee is the writer of his leg- acy; Thus, although the rule of the Roman law that " Qui se scripsit hceredem " could take no benefit under a will, does not prevail in the law in England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circum- stance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and jealous in examining the evi- dence in support of the instrument, in favor of which it ought not to pronounce, unless the suspicion is removed, and it is judi- cially satisfied that the paper does express the true will of. the de- ceased, (y) Where the testator is blind, it must be proved that the contents where the °^ ^^^ ^^^^ were known to the deceased ; for his execu- tion, or other acknowledgment of the will, is not suffi- cient. (2) And the same where, from want of education, or from bodily affliction, he is unable to read, (a) testator is blind, or cannot read: (y) See ante, 111, 112; Croft v. Day, 1 Curt. 784 ; S. C. nomine Dufaur v. Croft, 2 Moore P. C. C. 136 ; Darnell v. Corfield, 1 Robert. 51 ; [Duffield v. Morris, 2 Har- ring. (Del.) 384; Downey v. Murphey, 1 Dev. & Bat. 82 ; Crispell v. Dubois, 4 Barb. 393.] (z) Ante, 18, 19; Barton «. Robins, 3 Phillim. 455, note (6); Fincham a. Ed- monds, 3 Curt. 63, affirmed on appeal, 4 Moore P. C. 198 ; rule 71, P. R. ; [Boyd V. Cook, 3 Leigh, 32 ; Washington J. in Harrison 1^. Rowan, 3 Wash. C. C. 585 ; Lewis V. Lewis, 6 Serg. & R. 496 ; Clif- ton V. Murray, 7 Geo. 564 ; Wampler v. Wampler, 9 Md. 540. But a blind man's will need not be read to him in the pres- ence of the witnesses. Martin v. Mitch- ell, 28 Geo. 382.] But see Longchamp v. Fish, 2 New R. 415. (a) 4 Burn B. L. 61, 8th ed. ; Barton 0. Robins, 3 Phillim. 455, note (1) ; rule 71, P. R. [If the testator be incapable of reading the will, whether the incapacity arises from blindness, sickness, or any other cause, the rule is the same, and the burden of proving his knowledge of its contents is thence cast upon the person offering the will. Day v. Day, 2 Green Ch. (N. J.) 549. So if a reasonable ground be laid for believing that the will was not read to the testator, or that there was fraud or imposition of any kind practised upon him, it is incumbent on those who would support the will, to meet such proof by evidence, and to satisfy the jury either that the will was read, or that the contents were known to the testator. See Day v. Day, 2 Green Ch. (N. J.) 549; Gerrish v. Nason, 22 Maine, 438 ; Hard- ing V. Harding, 18 Penn. St. 340; Clifton h. Murray, 7 Geo. 564; Vernon v. Kirk, 30 Penn. St. 218 ; McNinch v. Charles, 2 Rich. (S. Car.) 229; Tomkins v. Tom- kins, 1 Bailey, 92, 96. In Day v. Day, supra, it was held that if it appear that the will in question was truly copied fron^ a previous will with the contents of which the testator was acquainted, the instru- ment will be admitted to probate although it was neither read by him nor in his hearing. So if it can be shown that the will is substantially in accordance with the instructions of the testator, it may be considered as sufficient evidence that he was acquainted with its contents. But if in drawing out a will from instruc- tions, they are materially departed from, the testator must be made acquainted with the deviations and alterations — if the testator did not know — if the will was not read over to him — or its contents and va- CH. II. § v.] EVIDENCE IN . TESTAMENTARY CAUSES. 403 So it is an established rule in the spiritual court, that, where the capacity of the testator is doubtful at the time * of ex- ecution, there must be proof of instruction, or of reading capacity of over, or other satisfactory evidence of some kind, that is doubt-"' Jie knew and approved of the contents of the will. (6) *"^' But this rule only applies, or at least only applies with any strin- gency, where the instrument is inofficious, i. e. not consonant to the testator's natural affections and moral duties, or where it is obtained by a party materially benefited, (c) In a modern case, (t?) a will had been propounded in a condidit, and the three attesting witnesses only had been examined. The testatrix was upwards of eighty years of age and very infirm ; she was deaf and almost blind ; and the instrument had been drawn up from directions given by the executor, who was partially the residuary legatee, and no instructions were proved to have been given by the de- ceased. Sir H. JennerFust pronounced against the validity of the will, not on the supposition of any fraud having been practised, but on the ground of failure of proof, (e) Where the alleged will of a seaman is in favor of his agent, there must be clear proof, not only of the subscription of seaman's the deceased to the instrument, but also of his knowl- fIVor°f his edge of its nature and effect. (/) ^^^*" Under certain circumstances, the validitv of a will Proof of " will by may be established by proving the handwriting of the mere evi- attesting witnesses, though no evidence can be given, handwrft- either of instructions or of the handwriting of the de- [efting^'wit- ceased. (^) nesses. riatlons otherwise made known to him, 1 Robert. 51 ; Jones v. Goodrich, 5 Moore the will cannot be sustained. Chandler u. P. C. 16; Mitchell v. Thomas, 6 Moore Ferris, 1 Harring. 454, 464. In regard to P. C. 137; S. C. 5 Notes of Gas. 600; instruments not testamentary, it is held Browning v. Budd, 6 Moore P. C. 430; that where a party who cannot read is Greville ». Tylee, 7 Moore P. C. 320 ; sought to be bound by a writing under [Burger v. Hill, I Bradf. Sur. 360 ; Cree- seal, it must appear that he had it read to ley v. Ostrander, 3 Bradf. Sur. 107.] him or knew its contents. Dorsheimer v. (c) Brogden v. Brown, 2 Add. 449. Eorback, 8 C. E. Green (N. J.) 46. It is {d) Sankey v. Lilley, 1 Curt. 402. otherwise where the party can read. 8 C. (c) See, also, Harwood v. Baker, 3 E. Green (N. J.) 46, 50; Androscoggin Moore P. C. C. 282; Croft v. Day, 1 Bank v. Kimball, 10 Cush. 373, 374.] Curt. 784; S. C. nomine Dufaur v. Croft, (6) Ante, 113; Billinghurst v. Tickers, 3 Moore P. C. C. 136. 1 Phillim. 193; Ingram u.Wyatt, 1 Hagg. (/) Zacharias v. Collis, 3 Phillim. 202. 382 ; Dodge v. Meech, 1 Hagg. 620 ; Barry {g) Anderson v. Welch, 1 Cas. temp. V. Butlin, ante, HI ; Darnell v. Corfield,Lee, 577. [Where, from the death of the [352] 404 OF PROBATE. [PT. I. BK. IV. In a court of construction, when ^& factum of the * instrument has been previously established in the court of probate, the in- attesting witnesses to a will, or from their absence from the jurisdiction, they cannot be produced, or where, from loss of recol- lection, they are unable to testify, and where they have become incompetent to give evidence since their attestation, it is held that proof of their handwriting, and, in some jurisdictions, of the handwriting of the testator, is competent evidence to be submitted to the jury of the due execu- tion of the will. Bell C. J. in Perkins v. Per- kins, 39 N. H. 169, and cases cited ; Dean V. Dean, 27 Vt. 746 ; Patten ». Tallman, 27 Maine, 17, 29 ; Hopkins v. Graffenreid, 2 Bay, 187 ; Chase C.J. in Collins a. Elliott, 1 Harr. & J. 2 ; Engles v. Bruington, 4 Yeates, 345 ; Sears v. Dillingham, 12 Mass. 358; Jauncey v. Thorne, 2 Barb. Ch. 40; McKean v. Prost, 46 Maine, 239, 245 ; Verdier v. Verdier, 8 Rich. (S. Car.) 135; Barker v. McFerran, 26 Penn. St. 211; Vernon v. Kirk, 30 Penn. St. 218; Hays V. Harden, 6 Penn. St. 409 ; GreSnough c. Greenough, 11 Penn. St. 489 ; Loomis V. Kellogg, 17 Penn. St. 60; Jackson v. Le Grange, 19 John. 288, 289 ; Ela v. Edwards, 16 Gray, 95 ; Nickerson v. Buck, 12 Gush. 341, 342 ; Stow v. Stow, 1 Redf. SuT. 305. The handwriting of all the witnesses should be proved. Crowell v. Kirk, 3 Dev. 355 ; Hopkins v. Albertson, 2 Bay, 484 ; Sampson w. Bradley, 1 Mc- Cord, 74; Jackson v. Luquere, 5 Cowen, 221. Where the witnesses have attested by their marks, they must be proved to be the marks of the witnesses. Collins v. Nichols, 1 Harr. & J. 399 ; Jackson v. Van Deusen, 5 John. 144. When all the sub- scribing witnesses are dead, and no proof of their handwriting can be obtained, as must frequently happen in the case of old wills, it will be sufficient to prove the signa- ture of the testator alone. 1 Phil. Ev. 503 ; Duncan v. Beard, 2 Nott & MeC. 400. As to the proof in case of wills which are more than thirty years old, see 1 Greenl. Ev. §§ 21, 570; Shaller v. Brand, 6 Binri. 435 ; Staring v. Bowen, 6 Barb. 109 ; Hew- [353] lett V. Cook, 7 Wend. 374 ; Fetherly v. Waggoner, 11 Wend. 599 ; Jackson v. Thompson, 6 Cowen, 178 ; Jackson v. Luquere, 5 Cowen, 225 ; Stephens v. French, 3 Jones (N. Car.) Law, 359 ; Hall V. Gittings, 2 Harr. & J. 112. As to the necessity for proving the signature of the testator, see, further, Davies v. Da- vies, 9 Q. B. 648, in which it appeared that a will dated before stat. 7 W. 4, and I Vict. c. 26, was produced on a trial in ejectment. It was signed in the name of the alleged devisor ; but there was no proof that the signature was in his hand- writing, or made by his authority. It was attested by two witnesses, deceased, whose handwriting was proved ; and between their names was that of another witness, J. P., who appeared to sign by his mark. A man in extreme old age, named J. P., was called, who was supposed to be the witness, but he had no memory on the subject. The will had not been disputed for sixteen years after the death of the devisor. It was held that, upon this evi- dence, a jury might infer a due execution of the will under stat. 29 Car. 2, c. 3, § 5. Denraan C. J. said: "If the jury may infer the presence of the testator without direct evidence, we see no reason why they may not infer that an apparent signature was real, and not forged, also without direct evidence." See Dean v. Dean, 27 Vt. 746. In Rider v. Legg, 51 Barb. 260, it appeared that the three subscribing wit- nesses to a will, executed since the revised statutes of New York took eflfect, were dead. The signatures of two of them were proved, with a perfect attestation clause, and there were circumstances which made it seem probable that the will was gen- uine. It was held that these facts were sufficient, after a long time had elapsed, to justify the reception of the will as evi- dence, without proving the signatures of the testatrix and the other of the sub- scribing witnesses. See M'Kenire v. Fraser, 9 Ves. (Perkins's ed.) 5, and note (a). But CH. II. § v.] EVIDENCE IN TESTAMENTARY CAUSES. 405 quiry is almost closely restricted to the contents of the P*™' evi- • , . 1 . . , ... denoe re- instrument itself, in order to ascertain the intentions of specting the testator. But in the court of probate, the inquiry is tion of the not so limited ; for there the intentions of the deceased, to'what' '^^ as to what shall operate as, and compose his will, are to ate asTd be collected from all the circumstances of the case taken compose together. (A) They must, however, be circumstances ex- isting at the time the will is made. (?) Therefore, if there is an ambiguity upon the factum of the in- strument, parol evidence may be admitted, under some circumstances, in the court of probate, to explain the in- if there is tention of the testator, (i^) By ambiguity upon the guity"on" factum is meant, not an ambiguity upon the construction, ">e/ac«Mm: as whether a particular clause shall have a particular effect, but an ambiguity as to the foundation itself of the instrument, or a it was said by Sargent J. in Boardman v. Woodman, 47 N. H. 135, that " there is no legal presumption, because the name of a person appears on a will as attesting witness, that the person actually attested it. The fact must be proved by evidence of handwriting or the production of the witness, or in some other way. Where the witness has deceased or is beyond the jurisdiction of the court, there is no pre- sumption as to what he would say if living and present." No inference as to the opinion of a deceased subscribing wit- ness in favor of the sanity of the testator can be drawn from the mere fact of his signing ; and, therefore, evidence of a contrary opinion expressed by him is inadmissible. Baxter v. Abbott, 7 Gray, 71 ; Boardman v. Woodman, 47 N. H. 120, 135 ; Flanders v. Davis, 19 N. H. 139 ; Thompson o. Kyner, 65 Penn. St. 368; Stobart v. Drydon, 1 M. & W. 615; ante, 20, note (x^) ; Van Dyke J. in Boylan v. Meeker, 4 Dutcher (N. J.), 274. But see McElwee v. Sutton, 2 Bailey (S. Car.), 128; Walworth Ch. in Scribner v. Crane, 2 Paige, 147; Townshend v. Townshend, 9 Gill, 506 ; Harden v. Hays, 9 Penn. St. 151. Nor can declarations of a deceased attesting witness to a will, tending to im- peach the will or himself as a witness, be admitted in favor of those opposing the proof of the will. Boylan u. Meeker, 4 Dutcher _(N. J.), 274. As to the admis- sibility of evidence to impeach the general character of deceased attesting witnesses, whose handwriting has been proved to substantiate an instrument, see Losee v. Losee, 2 Hill, 609 ; Grouse o. Miller, 10 Serg. & R. 155 ; Stobart v. Dryden, 1 M. & W. 615 ; Boylan v. Meeker, 4 Dutcher (N. J.), 274. The proof of the actual attestation of the witness is not the proof of a declaration, but of a fact, to be met by proof of other facts, to show he did not attest the instrument, but not by proof of his own declarations. Stobart v. Dryden, 1 M. & W. 615, 623, 624, Parke B. ; Boylan v. Meeker, 4 Dutcher (N. J.), 274.] (A) Greenough v. Martin, 2 Add. 243 ; Methuen v. Methuen, 2 Phillim. 426 ; In the Goods of English, 3 Sw. & Tr. 586; Robertson v. Smith, L. R. 2 P. & D. 43. See, also, the cases collected, ante, 106, note {g). (t) Stockwell V. Ritherdon, 1 Robert. 661, 668; 6 Notes of Cas. 415, per Sir H. J. Fust. (i'-) [See Witherspoon v. Witherspoon, 2 McCord, 520.] 406 OF PROBATE. [PT. I. BK. IV. particular part of it. As, whether the testator meant a particular what is clause to be part of the instrument, or whether it was in- ambiguity: troduced without his knowledge; whether a codicil was meant to republish a former or a subsequent will ; (A;) whether the residuary clause or any other passage was accidentally omitted; (Z) whether an instrument was subscribed *to authenti- cate it, as memoranda for a future will, or to execute it as a final will : (m) these are all matters of ambiguity upon the factum of the instrument. («) theambi- ^'"^ ^^ ^^^ Considered as a rule in the prerogative guity must court, that, in order to justify the admission of parol evi- face of the dence to explain an ambiguity upon the factum of an instrument, the ambiguity must he upon the face of the paper ; and further, the facts alleged and to be proved must completely remove that ambiguity, (o) When no ambiguity whatever appears upon the face of the instru- ment, the court will not admit parol evidence. Thus, in the case of Fawcett v. Jones, ( jo) the allegation stated in substance that the residuary clause of the will was not coextensive with the instructions given by the party deceased, and the allegation also contained an averment (which it was proposed to support by parol evidence only), suggesting that such variation was not made by any directions received from the deceased, nor with his privity or knowledge, but through mere error and oversight of the drawer, and of the testatrix herself ; and the court was prayed to pro- instru- ment: and be completely- removed by the pro- proof : (i) Lord St. Helens v. Lady Exeter, 3 Phillim. 461, note (g). There the testator left a will, dated 13th Dec. 1800, and » codicil all in his own handwriting, begin- ning, " This is a codicil to my last will and testament of the 10th Jan. 1798, and I do hereby ratify and confirm my said will." On the part of the executors it was alleged that at the time of the execu- tion of the codicil the deceased was at Burghley, and copied this from a fjrm which he had procured from his solicitor, and Inadvertently copied the date from a former will, which it was to be presumed had been destroyed, as it could not be found. Parol evidence was admitted to prove this allegation, and show the mis- take ; and the codicil was pronounced a codicil to the will of December, 1800. [354] (I) Blackwood v. Damer, 3 Phillim. 458, note {d) ; fost, 356 ; Travors u. Miller, 3 Add. 226 ; Balydon v. Balydon, 3 Add. 239 ; Shadbolt v. Waugh, 3 Hagg. 570 ; but see Castell u. Tagg, ■post, 357 ; and see, also, p. 359, as to wills made after January 1, 1838. (m) Matthews v. Warner, 4 Ves. 186 ; 5 Ves. 23 ; Mitchell v. Mitchell, 2 Hagg. 74; Castle o. Torre, 2 Moore P. C. C. 133, 154; ante, 110. (n) 3 Phillim. 479. (o) Fawcett xj. Jones, 3 Phillim. 434 ; Draper v. Hitch, 1 Hagg. 678 ; Harrison v. Stone, 2 Hagg. 550; Shadbolt v. Waugh, 3 Hagg. 570 ; and see Sandford v. Vanghan, 1 Phillim. 128. (jo) 3 Phillim. 434. CH. n. § v.] EVIDENCE IN TESTAMENTARY CAUSES. 407 nounce for the part of the instructions so alleged to have been omitted as part of the will. But Sir John NichoU, in a very elabo- rate judgment, in which all the previous cases upon the subject are collected and commented upon, refused to admit the allegation, on the ground that the will had been regularly executed, and there was no ambiguity apparent upon the face of it. With respect to what shall be an apparent ambiguity, * such as to satisfy this rule, it has been held, that the indorse- ^hat is an ment " Heads of will," on a paper fairly written, signed, apparent^ and dated, (q) or a commencement " This is a memoran- °? the face dum of my intended will,"(r) will let in parol evidence strument. of intention. In Mathews v. "Warner, (s) the concluding part of the instrument was very strong to show that the testator meant that very instrument to operate : " I appoint my good friend, Mr. Edward Lapine, and my good friend, Mr. Edward Johnson, my executors, to see this my last will and testament complied with." Dated at Deptford, 2d October, 1785, and signed " William Mathews." But the paper commenced thus : " 2d November, 1785. A plan of a will proposed to be drawn out as the last tes- tament of William Mathews, storekeeper of his majesty's yard, at Deptford." The prerogative court (in deference to the decision of the supreme court in a former case) and the court of delegates held, that affixing his signature was a permanent execution, and that that was conclusively established on the face of the paper. The commission of review, however, held that this description " a plan to be afterwards drawn out," opened the case to the admis- sion of evidence as to the intention with which the signature was affixed, and the continuance thereof to his death ; and the paper was ultimately pronounced, by the commission of review, not to be his will. In Coppin v. Dillon, (f) the deceased, John Plura, died on the 19th of October, 1831, having made a will in 1820, and three codicils, all formally executed and attested to carry realty. He destroyed the will, but on each of the codicils were written, " June 18, 1830, my will, John Plura," and other in- dorsements at a subsequent date, leading to the inference that he considered that at such time he had no will. In 1830 he executed a new will and a codicil, the latter subsequent to June, 1830, which will and codicil were * not forthcoming ; and in 1831, he executed (q) Mitchell v. Mitchell, 2 Hagg. 74. (s) 4 Ves. 186. (r) Barwick v. Mailings, 2 Hagg. 225. \t) 4 Hagg. 361. [355] [356] 408 OF PROBATE. [PT. I. BK. IV. a settlement. The three codicils, the settlement, and its envelope, were propounded as together containing the will ; and the court held that the words written on the codicils were not conclusive of an intention that they should operate as substantive papers, and that evidence, dehors the papers, was therefore admissible ; and on such evidence, coupled with all the circumstances of the case, pronounced for an intestacy. In Blackwood v. Damer, (u) the testator wrote with his own hand instructions for a will, in which he left the residuum to his youngest daughter, The attorney, in writing over the will, omitted the residuary clause. The draft was read over to the tes- tator, and left in his custody two days, and the will was executed in due form. The court (Dr. Calvert) admitted evidence as to the omission, and of the testator's expressing himself as having left the residuum to his youngest daughter, and pronounced for the instructions as part of the will. There was an appeal to the delegates, who confirmed the decision below (except inasmuch as they decreed that the residuary clause only, and no other part of the instructions should stand as part of the will). Sir John Nicholl, in commenting on this case in Fawcett v. Jones, (x) stated that there was an ambiguity on the face of the will, inasmuch as there was a total omission of any disposal of the residue, and a total omission of a provision for one of the testator's daughters. («/) In UpfiU V. Marshall, (g) a will, dated February, 1837, disposed of real and personal estate. A codicil, dated June, 1837, partly revoked the disposition of the personalty. A memorandum, dated July, 1838, formally republished the will as " this writing." The question was, whether the * codicil of June, 1837, was revoked. In fact, the testator had purchased a real estate in the interval between the date of the codicil and the republication ; and Sir H. Jenner Fust was of opinion that this was a circumstance which, of itself, introduced an ambiguity on the face of the will ; be- cause, but for this circumstance, there seemed no necessity for a republication of it ; and that this ambiguity laid a ground for the admission of parol evidence in order to ascertain the quo animo of (m) 3 Phillim. 458, note (d); S. C. 3 ambiguity. See, also, In the Goods of Add. 239, note. Thompson, H Jur. N. S. 960; S. C. 35 (x) 3 Phillim. 485. L. J., P. M. & A. 17. (y) See, also. Draper v. Hitch, 1 Hagg. (z) 3 Curt. 636 ; S. C. 2 Notes of Cas. 677, for another instance of an apparent 400. [357] CH. II. § v.] KVIDENCE IN TESTAMENTARY CAUSES. 409 the act of republication ; and that as it appeared on such evidence that the sole motive was to pass the after purchased estate, the codicil was not revoked by the republication of the will. As to undue omissions or insertions in wills, the result of the authorities connected with this subject is, that where these two conditions are satisfied, viz, 1. Some absurdity or ambiguity on the face of the will ascribable to something either omitted or inserted ; and 2. Clear and satisfactory proof that the insertion or omission was contrary to the intention of the testator ; the court is at lib- erty, and even bound, to pronounce for the will, not in its actual state, but with such error first reformed or corrected, either by the insertion of the passage omitted, or by the omission of that inserted, (a) It must here be observed, that the authority of some of the cases on which the first of the two conditions above Rule that mentioned was introduced, and the foundation of the rule gujtj- must itself, so far as it prescribes that, unless there is an anibi- the face°of guity, on the face of the instrument, the court can in no ^■^^ msti-u- ='•''_ ' _ ment con- case admit parol evidence in order to supply an omis- filmed. sion, appeared to be somewhat shaken by the modern case of Castel V. Tagg. (6) There Sir H. Jenner Fust admitted an alle- gation, pleading the omission of a legacy by mistake in a will per- fect 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. Darner, (c) 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, (^d) the (a) Bayldon v. Bayldon, 3 Add. 232, for setting aside the will, if the mistake 238 ; Travel's ;;. Miller, 3 Add. 226. See, was caused not by his insanity or incapac- also, Mitchell v. Gard, 3 Sw. & Tr. 75 ; ity, but by his voluntary omission to as- [Burger v. Hill, 1 Bradf. Sur. 360; certain the value correctly. Barker o. Greeley i;. Ostrander, 3 Bradf. Sur. 107. Comins, 110 Mass. 477, 488, 489; Boell The fact that « testator meant to divide v. Schwartz, 4 Bradf. Sur. 12.] his property equally among his children, (b) 1 Curt. 298. but that by a mistake on his part as to the (c) Supra, 156. value of the property, his will failed to (d) 3 Add. 239. have that effect, is not a suflBcient ground [358] 410 OF PROBATE. [PT. I. BK. IV. will purported to dispose of 50,000?., and 5,000Z. were omitted. Still that was an omission, not an ambiguity ; and the court ad- mitted evidence from written documents, which showed clearly what was intended." However, in the subsequent case of Thorne V. Rooke, (e) where the question was whether two codicils were intended to operate together, or whether the latter was a substi- tute 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 evi- dence until it is first satisfied that there is that doubt and ambi- guity on the face of the papers which requires the aid of extrinsic evidence to explain it." (/) Although it appears from the above cases, that, under certain Omissions circumstances, casual omissions in a will may be supplied cannot be by the instructions given for such will, yet it is clearly from the necessary that those instructions should have been re- tionruniess ^^^^^ ^^^° writing in the lifetime of the testator ; other- in writing: wise 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. (^) * And with respect to wills made on and after January 1, nor in any 1838, it is plain that, by reason of the provisions of wills made ^^^ ^tat. 1 Vict. c. 26, the whole of every testamentary ifms*"' disposition must be in writing, and signed and attested 1 Vict. pursuant to the act. Whence it follows that the court <=• 26- has no power to correct omissions or mistakes by ref- erence to the instructions in any case to which that statute ex- tends. (A) (e) 2 Curt. 799. 109, where that learned jndge stated the (/) See, also, Bailey v. Parkes, 5 general rules which, since the wills act. Notes of Cas. 392 ; Mitchell i/. Gard, 3 ought to govern questions of this nature. Sw. & Tr. 75. See, also, In the Goods o^ [See Avery v. Chappel, 6 Conn. 270, 275 ; Davy, 1 Sw. & Tr. 262 ; Guardhouse v. Conistock v. Hadlyme, 8 Conn. 254 ; Blackburn, L. K. 1 P. & D. 109 ; Reffell Andress v. Weller, 2 Green. Ch. (N. J.) V. Reffell, lb. 139. 604, 608, 609 ; Cffisar v. Chew, 7 Gill & (g) Rockell n. Youde, 3 Phillim. 141. J. 127 ; Earl of Newbury v. Countess o See ante, 71 ; [Gifford v. Dyer, 2 R. 1. 99.] Newbury, 5 Madd. 364 ; 1 M. & Scott, (h) In the Goods of Wilson, 2 Curt. 352; Barker v. Comins, 110 Mass. 477; 853 ; Stanley v. Stanley, 2 Johns. & II. Barter v. Harter, L. R. 3 P. & D. H, 12; 491. See, also, Birks v. Birks, 34 L. J., Gifford v. Dyer, 2 R. I. 99; Iddings v. P. M. &■ A. 92, per Sir J. P. Wilde; Iddings, 7 Serg. & R. HI.] Guardhouse v. Blackburn, L. R. 1 P.& D. [359] CH. II. § v.] OMISSIONS, ETC. SUPPLIED IN WILLS. 411 A verdict in an action of ejectment, brought for the Verdict in purpose of trying the validity of a will as to realty, is inadmissi-' not admissible in an allegation in a testamentary cause, tamentary" respecting the same will, in the ecclesiastical court. («') cause. Not only when the competency of the testator is in dispute, but in all cases where there is any imputation of fraud in the In what making of the will, the declarations of the testator are deciara- admissible in evidence respecting his dislike or affection 'estaior Se for his relations, or those who appear in the will to be admissible -^ ■*■ ^ in evi- the objects of his bounty, and respecting his intentions dence. either to benefit them or to pass them by in the disposition of his property. (/) So it was held by the court of Q. B. in Doe v. Palmer, (^) that, in order to rebut the presumption which, as there has already been occasion to mention, (Q exists that unat- tested 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 pro- vide by his will for a person who would be unprovided for with- out the alterations in question. But that court further held his declarations inadmissible, which 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 con- provisions of the will, are admissible in evidence in connection with other testi- mony tending to show snch influence. Neel V. Potter, 40 Penn. St. 483 ; Starrett 17. Douglass, 2 Yeates, 46 ; Irish v. Smith, 8 Serg. & E. 573; Stevens v. Vancleve, 4 Wash. C. C. 266; Denison's Appeal, 29 Conn. 399 ; Wooton v. Redd, 12 Grattan, 196; Colt J. in Shailer «. Bumstead, 99 Mass. 122. But declarations of the tes- tator cannot be admitted to prove that the will was forged, or that he was fraudu- lently induced to execute it under the be- lief that it was some other paper. Boylan V. Meeker, 4 Dutcher (N. J.), 274; post, 360, note (m).] {Jc) 16 Q. B. 747. (1) AntBi 130, 131. [360] (i) Grindall v. Grindall, 3 Hagg. 259. (j ) Lord Campbell C. J. in Shallcross V. Palmer, 16 Q. B. 759; [Allen v. Allen, 12 Ad. & El. 451 ; Beaubien v. Cicotte, 12 Mich. 459 ; Robinson v. Adams, 62 Maine, 369 ; Howell v. Barden, 3 Dev. 442 ; Reel v. Reel, 1 Hawks, 248 ; Cawthorn v. Haynes, 24 Missou. 236 ; Roberts v. Trawick, 13 Ala. 68 ; Shailer c--. Bumstead, 99 Mass. 112 ; Rambler w. Tryon, 7 Serg. & E. 90; Waterman v. Whitney, 1 Kernan, 157. Where there is an imputation of undue influence upon the testator in making his will, his declarations, made at different times and at distant intervals for many years, before and down to the period of making the will, disclosing a long cher- ished purpose of disposing of his property in a manner wholly at variance with the 412 OF PROBATE. [PT. I. BK. IV. troverted 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, (m) In the ecclesiastical court the declarations (m) See accord. In the Goods of Kip- ley, 1 Sw. & Tr. 68 ; In the Goods of Hardy, 30 L. J., P. M. & A. 142. So on an issue as to the revocation of a duly ex- ecuted will, evidence of declarations of the deceased (to the effect that he had made a will, but destroyed it), made subsequently to the date of the alleged revocation, was held inadmissible, as falling within the principle laid down in Doe c. Palmer. Staines v. Stewart, 2 Sw. & Tr. 320. Again, evidence of the declarations of an alleged testator as to the contents of his will not forthcoming, made after its ex- ecution, were held not admissible to prove its contents. Quick v. Quick, 3 Sw. & Tr. 442. [This case of Quick o. Quick was overruled in Sugden v. Lord St. Leonards, L. R. 1 P. Div. 154, where it was held that declarations, written or oral, made by a testator, both before and after the execu- tion of his will, are, in the event of its loss, admissible as secondary evidence of its contents.] But upon a question be- tween heir and devisee as to the compe- tency of the testator at the time of making his will, it was held to be no misdirection to tell the jury that they might take into consideration statements made by the tes- tator as to the dispositions contained in his will, and which, in fact, corresponded therewith, as throwing back light on the period at which the will was executed (a year before), and as affording means of inferring what was the state of his com- petency at that period. Sutton v. Sadler, 3 C. B. N. S. 99. See, also, Whiteley v. King, 17 C. B. N. S. 756 ; [Harring v. Allen, 25 Mich. 505. In Shailer v. Bum- stead, 99 Mass. 122, Colt J., speaking with reference to the statements and declara- tions of a testator subsequent to the ex- ecution of his will, said : " They are not, by the better reason and the most authori- tative decisions, admissible to establish the fact of fraud and undue influence as one of the constituent elements of the issue. When used for such purpose, they are mere hearsay, which, by reason of the death of the party whose statements are so offered, can never be explained or con- tradicted by him. Obtained, it may be, by deception or persuasion, and always liable to the infirmities of human recol- lection, their admission would go far to destroy the security which it is essential to preserve. The declaration is not to be wholly rejected, however, if admissible on other grounds ; and it must be left to the judge carefully to point out how far it is to be rejected or received as evidence by the jury. Ordinarily we should expect more or less evidence of the prior existence of those peculiarities which the subsequent declarations give evidence of; and in the reported cases this will generally be found to be so. It is not necessary to decide whether, in the entire absence of such evi- dence, subsequent declarations would ever be competent. Where a foundation is laid by evidence tending to show a previous state of mind, and its continued existence past the time of the execution of the will is attempted to be proved by subsequent conduct and declarations, such declara- tions are admissible, provided they are significant of a condition suflSciently per- manent, and are made so near the time as to afford a reasonable inference that such was the state at the time in question." The learned judge then cites and com- ments on the following English and Amer- ican authorities bearing upon the point : Provis V. Keed, 5 Bing. 435 ; Maiston u. Hoe, 8 Ad. & El. 14 ; Jackson v. Kniffen, 2 John. 31 ; Waterman v. Whitney, 1 Ker- nan, 157 ; Comstock v. liadlyme, 8 Conn. 254 J Robinson v. Hutchinson, 26 Vt. 47; Moritz V. Brough, 16 Serg. & R. 402 ; M'Taggart v. Thompson, 14 Penn. St. 149, 154; Boylan v. Meeker, 4 Duteher, 274 ; and adds : " A will made ,where fraud or compulsion is used may never- theless be shown to be the free act of the CH. II. § v.] OMISSIONS, ETC. SUPPLIED IN WILLS. 413 of the testator have been deemed admissible to prove the fact of party, by proof of statements in which the ■will and its provisions are approved, made when relieved of any improper influence or coercion. It is always open to inquiry, whether undue influence in any case oper- ated to produce the will ; and, as the will is ambulatory during life, the conduct and declarations of the testator upon that point are entitled to some weight. Indeed, the fact alone, that the will, executed with due solemnity by a competent person, is sufifered to remain unrevoked for any con- siderable time after the alleged causes have ceased to operate, is evidence that it was fairly executed ; to meet which, to some extent at least, statements of dissatisfac- tion with or want of knowledge of its contents are worthy of consideration and clearly competent, however slight their in- fluence in overcoming the fact that there is no revocation. All this evidence, under whatever view it is admitted, is competent only and always to establish the influence and effect of the external acts upon the tes- tator himself; never to prove the actual fact of fraud or improper influence in another." And in the same case, the learned jndge said that the declarations, being "offered to show cither ignorance of the contents of the will, or, that they were contrary to the real intentions of the testatrix, and that the will was improperly obtained by the fraud and undue influence of the ex- ecutors named," though "not competent as a declaration or narrative to show the fact of fraud or undue influence at a pre- vious period," were " admissible, not only to show retention of memory, tenacity, or vacillation of purpose existing at the date of the will, but also in proof of long cher- ished purposes, settled convictions, deeply rooted feelings, opinions, aff^ections, or prejudices, or other intrinsic or enduring peculiarities of mind, inconsistent with the dispositions made in the instrument at- tempted to be set up as the formal and de- liberate expression of the testatrix's will ; as well as to rebut any inference arising from the non-revocation of the instru- ment." 99 Mass. 125, 126. See Boy- Ian V. Meeker, 4 Dutcher (N. J.), 274. And see Johnson v. Lyford, L. E. 1 P. & D. 546, where it was held that the verbal and written declarations or statements made by the testator in or about the mak- ing of his will, when accompanying acts done by him in relation to the same sub- ject, are admissible as evidence of the con- tents of the same will. As to proof of declarations which in the lifetime of the testator were privileged communications between him and ihe witness, see Allen V. The Public Administrator, 1 Bradf. Sur. 221 ; Britton o. Lorenz, 45 N. Y. 51 ; Sanford v. Sanford, 61 Barb. 293 ; Rogers v. Lyon, 64 Barb. 373 ; Carnes v. Piatt, 15 Abbott Pr. (N. S.) 337; Tay- lor's Will case, 10 Abbott Pr. (N. S.) 300 ; Brand v. Brand, 39 How. Pr. (N. Y.) 193 ; Daniel v. Daniel, 39 Penn. St. 191, Woodward J.; or between husband and wife. Brewer v. Ferguson, 11 Humph. 565. As to the declarations and acts of devisees or legatees being parties to a suit touching the validity of a will, it was held in Shailer v. Bumstead, 99 Mass. 112, that evidence of such declarations and acts, subsequent to the execution of the will, whether before or after the death of the testatrix, is inadmissible to prove that the will " was contrary to her intentions, or that she was ignorant of its contents, and that it was procured by fraud and undue influence of" such parties, if there are other parties to be affected thereby who are not jointly interested nor in privity with them. In the above case, 99 Mass. 127, Colt J. said: "Devisees or legatees have not that joint interest in the will which will make the admissions of one, though he be a party appellant or appellee from the decree of the probate court allow- ing the will, admissible against the other legatees." So in Morris v. Stokes, 21 Geo. 552, it was decided that the declarations of a single legatee, although the principal one, in regard to the mode of obtaining a will, are not admissible to defeat the entire 414 OF PROBATE. [PT. I. BK. IV. the destruction of a will, even in cases where no fraud or miscon- duct is imputed, (n) will, unless a combination among all the legatees to obtain the will by unlawful means be first shown. But such testimony is admissible to defeat the particular leg- acy of that party, on the ground that it was procured by fraudulent means. And the jury may, by the same verdict, estab- lish the remainder of the will. See, also, Lightner v. Wike, 4 Serg. & K. 203 ; Bo- vard V. Wallace, 4 Serg. & W. 409 ; Boyd V. Eby, 8 Watts, 66 ; Dotts v. Fetzer, 9 Penn. St. 88 ; Roberts v. Trawick, 13 Ala. 68 ; Blakey u. Blakey, 33 Ala. 611 ; Shai- ler u. Bumstead, 99 Mass. 129, and cases cited; Brown u. Moore, 6 Yerger, 272. But the admissions and declarations of a sole devisee or legatee would be admissi- ble. Nussear v. Arnold, 13 Serg. & E. 323, 328, 329 ; Shailer v. Bumstead, 99 Mass. 128, 129 ; Ware v. Ware, 8 Greenl. 42.] (n) See Hale v. Tokelove, 2 Robert. 328, by Dr. Lushington. [So the declara- tions of a testator, to the eifect that he was leaving a valid will, have been held admis- sible for the purpose of proving that a lost will had not been revoked. In re Johnson's Will, 40 Conn. 587 ; post, 379, note (p2). So his expressions of dissatis- faction with his will, to show it has been revoked. Harring v. Allen, 25 Mich. 505. In cases where the mental capacity of the deceased is in issue, the range of in- quiry into the history of his life, conduct, feelings, affections, declarations, and con- versations, seems to be bounded only by the discretion of the court applied to the circumstances of each particular case. Colt J. in Shailer w. Bumstead, 99 Mass. 119, said, " The will is always liable to be im- peached by any competent evidence that it was never executed with the required formality, was not the act of one possessed of testamentary capacity, or was obtained by such fraud and undue influence as to subvert the real intentions and will of the maker. The declarations of the testator accompanying the act must always be re- sorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declarations of the testa- tor, ofi^red to prove the mental facts in- volved, are competent. Intention, pur- pose, mental peculiarity, and condition, are mainly ascertainable through the me- dium afforded by the power of language. Statements and declarations, when the condition of the mind is the fact to be shown, are therefore received as mental acts or conduct. The truth or falsity of the statements is of no consequence. As a narration it is not received as evidence of the facts stated. It is only to be used as showing what manner of man he is who makes it. If therefore the statement or declaration offered has a tendency to prove a condition not in its nature temporaiy and transient, then, by the aid of the rec- ognized rule that what is once proved to exist must be presumed to continue till the contrary be shown, the declaration, though prior in time to the act the validity of which is questioned, is admissible. Its weight will depend upon its significance and proximity. It may be so remote in point of time, or so altered in its import by subsequent changes in the circum- stances of the maker, as to be wholly im- material, and wisely to be rejected by the judge. Upon the question of capacity to make a will, evidence of this description is constantly received. The inquiry is of course directed to the condition at the date of the execution of the will ; but the entire moral and intellectual development of the testator at that time is more or less involved ; not alone those substantive and inherent qualities which enter into the constitution of the man, but those less permanent features which may be said to belong to and spring from the affections and emotions, as well as those morbid de- velopments which have their origin in some physical disturbance. All that is peculiar in temperament or modes of CH. II. § VI.J OF THE WILLS OF FOREIGNERS, ETC. 415 SECTION VI. Of the Probate of Wills of Foreigners, Sj-o. and of British Sub- jects domiciled out of the Jurisdiction of the Court. If the testator died without leaving any personal property in this country, generally speaking, his will need not be if the de- proved in any court of probate here ; and, therefore, no^pgrgon! where the plaintiff as administrator of I. S., who died ^ity in this thought, the idiosyncrasies of the man, so far as susceptibility is thereby shown, pre- sent proper considerations for the jury." Boylan v. Meeker, 4 Dutcher (N. J.), 274; Harrison v. Rowan, 3 Wash. C. C. 586 ; Eambler v. Tryon, 7 Serg. & E. 90 ; Rob- inson V. Adams, 62 Maine, 369, 411-413 ; Potts V. House, 6 Geo. 324 ; Davis v. Cal- vert, 5 Gill & J. 269 ; Van Alst v. Hun- ter, 5 John. Ch. 148 ; Lucas v. Parsons, 27 Geo. 593 ; Whitenach v. Stryker, 1 Green Ch. 11 ; Rotinson v. Hutchinson, 26 Vt. 38 ; Kinne v. Kinne, 9 Conn. 102 ; Sea- men's Friend Society v. Hopper, 33 N. Y. 619 ; Boyd v. Eby, 8 Watts, 66 ; Grant v. Thompson, 4 Conn. 203 ; Irish v. Smith, 8 Serg. & R. 573 ; Brock v. Luckett, 4 How. (Miss.) 459; Clapp u. Fullerton, 34 N. Y. 190; Stackhouse v. Horton, 15 N. J. 202 ; Beaubien v. Cicotte, 12 Mich. 495; 1 Greenl. Ev. § 108 ; Moritz u. Brough, 16 Serg. & R. 405 ; Norwood o. Marrow, 4 Dev. & Bat. 442 ; Comstock v. Hadlyme, 8 Conn. 254. In a case where the mental capacity of a party to make a will was in controverisy (Wright i/. Tatham, 5 CI. & Fin. 670, 715), Mr. Justice Patteson said : " Every act of the party's life is relevant to the issue." Mr. Baron Alderson, in the same case, p. 720, said : " The object of laying this testimony before the jury, is to place the whole life and conduct of the testator, if possible, before them, so that they may judge of his capacity ; for this purpose, you call persons who have known him for years, who have seen him frequently, who have conversed with him or corresponded with him." " Every act of the testator is evidence." Mr. Baron Bolland, in the same case, pp. 728, 729, said : " I take it to be settled, that, in order to show the state of mind and un- derstanding of a person whose competency, as in the present case, is brought in ques- tion, whatever is said, written, or done by the friends of the party, and others who may have had transactions with him, is ev- idence to be submitted to the jury, who are to decide upon such competency, provided what has been so said, written, or done, can be proved to have been known to and acted upon by such party.'' But it was decided in the above case that letters writ- ten to the party whose competency to make a will was in question, by third per- sons since deceased, and found many years after their date among his papers, are not admissible in evidence, without proof that he himself acted upon them. S. C. 1 Ad. & El. 3 ; 7 Ad. & El. 313 ; 2 Russ. & My. 1. General reputation as to sanity of the testator is not admissible. Mr. Baron Parke, Wright v. Tatham, 5 CI. & Fin. 670, 735 ; Townsend v. Pepperell, 99 Mass. 40. As to the testimony of sub- scribing witnesses, see ante, 346, note (cf'). As to the opinions of persons not experts, nor subscribing witnesses, ante, 346, note (d^). — Experts. The testimony of experts generally forms a prominent feature in the evidence upon the trial of an issue re- specting the mental capacity of a testator. In Commonwealth v. Rogers, 7 Met. 500, 504, 505, Shaw C. J. said : " Some ques- tions lie beyond the scope of the observa- tion and experience of men in general, but are quite within the observation and experience of those whose peculiar pur- 416 OF PROBATE. [PT. I. BK. IV. country, at Naples, * brought his bill to have a discovery of the need not be intestate's personal efEects, the defendant pleaded that here^ the deceased had by his will made him, the defendant, suits and profession have brought the class of facts, laid before the jury, frequently and habitually under their consideration. It is upon this ground that the opinions of witnesses who have long been conversant with insanity in its various forms, and who have had the care and superintend- ence of insane persons, are received as competent evidence, even though they have not had opportunity to examine the particular patient, and observe the symp- toms and indications of disease, at the time of its supposed existence. It is de- signed to aid the judgment of the jury in regard to the influence and effect of cer- tain facts which lie out of the observation and experience of persons in general. The value of such testimony will depend mainly upon the experience, fidelity, and impar- tiality of the witness who gives it." The question of the competency of the expert is for the court. Boardman v. Woodman, 47 N. H. 120 ; Eice J. in Heald v. Thing, 45 Maine, 397 ; Commonwealth v, Sturtl- vant, 117 Mass. 122, 137. The opinion of an expert may be admitted upon the ques- tion of the capacity of the testator, founded either upon his own personal acquaint- ance with the testator and his observation and examination of him, or upon a hypo- thetical case involving the same facts, or facts similar to those, supposed to be proved by the evidence. Boardman v. Woodman, 47 N. H. 120; Heald v. Thing, 45 Maine, 392 ; Jackson v. N. Y. Central R. E. Co. 2 N. Y. Sup. Ct. 653; Bonard's Will, 16 Abb. Pr. N. S. 128 ; People v. Montgom- ery, 13 Abb. Pr. N. S. 207 ; Macfarland's Trial, 8 Abb. Pr. N. S. 57 ; McAllister v. State, 17 Ala. 434 ; Clark v. State, 12 Ohio, 483 ; Kempsey v. McGinniss, 21 Mich. 123. In either case, the facts or symptoms on which his opinion is founded must be dis- tinctly stated. Heald v. Thing, 45 Maine, 392, 396, 397 ; Hathorn u. King, 8 Mass. 371; Dickinson v. Barber, 9 Mass. 225; Clark v. State, 12 Ohio, 483 ; Gibson v. [361] Gibson, 9 Yerger, 329. And the jury must be satisfied that the facts and symptoms did exist in the particular case. Hai'rison V. Eowan, 3 Wash. C, C. 587 ; Duffield v. Morris, 2 Harring. 375 ; Gibson v. Gibson, 9 Yerger, 329 ; Potts v. House, 6 Geo. 324 ; Kempsey v. McGinniss, 21 Mich. 123. It must appear that the witness has reliable information or knowledge of the facts in- volved, and upon which his opinion is to be founded, before he can testify as an expert. Eice J. in Heald v. Thing, 45 Maine, 397 ; Gaston J. in Clary v. Clary, 2 Ired. 78. But an expert cannot be al- lowed to give his opinion based partly upon the representations made to him by others not under oath, and partly upon his own observation and examination of his patient's symptoms and condition. Heald V. Thing, 45 Maine, 392 ; Wetherbee v. Wetherbee, 38 Vt. 454. Nor can a wit- ness who is an expert, in a case where the evidence is complicated and conflicting, although he has heard all the testimony, be asked, " Supposing all the facts stated by the witnesses to be true, was the tes- tator laboring under an insane delusion, or was he of an unsound mind ? " But the facts upon which his opinion is asked should be put to him hypothetically. Woodbury V. Obear, 7 Gray, 476 ; Fairchild v. Bas- comb, 35 Vt. 398 ; Eegina v. Frances, 4 Cox C. C. 57 ; Bainbrigge v. Bainbrigge, 4 Cox, 454 ; United States v. McGlue, 1 Curtis C. C. 1 ; Commonwealth k. Eogers, 7 Met. 500; M'Naghten's case, 10 CI. & Fin. 200 ; People v. M'Cann, 3 Parker Cr. (N. Y.) 272. There is, however, no estab- lished formula for questions to experts in Massachusetts, and any question may be proper which, upon the circumstances de- veloped, will elicit their opinions as to the matters of science or skill which are in controversy, and at the same time exclude their opinion as to the effect of the evi- dence in establishing controverted facts. Hunt V. Lowell Gas Light Co. 8 Allen, CH. II. § VI.J OF THE WILLS OF FOKEIGNEES, ETC. 417 his executor, and he had proved the will according-to the law of 169. In this last cited case the expert wit- nesses had heard the whole of the evi- dence, which was not conflicting, and they were permitted to answer this question ; " Having heard the evidence, and assuming the statements made by the plaintiff to be true, what in your opinion was the sick- ness, and do you see any adequate cause for the same ? " although it was objected to. See Crowell v. Kirk, 3 Dev. (Law) .355 ; Kempsey v. McGinniss, 21 Mich. 123. A question under like circumstances and in similar form, it was held, would be proper, by the learned judges in M'Nagh- ten's case, 10 CI. & Fin. 200. See Negro Jerry v. Townshend, 9 Md. 145; State V. Windsor, 5 Harring. 512. The proper questions to be asked of a witness testi- fying as an expert on a question of men- tal capacity were suggested and well con- sidered by Christiancy J. in Kempsey v. McGinniss, 21 Mich. 123, 137 et seq. An expert is allowed to state, on his examina- tion in chief, the grounds of the opinion expressed by him, and the reasons for it. Heald v. Thing, 45 Maine, 397; Metcalf J. in Keilh v. Lothrop, 10 Gush. 453, 457 ; Commonwealth v. Webster, 5 Cush. 301 ; Collier v. Simpson, 5 C. & P. 73. See, as to the value of the evidence of experts, Christiancy J. in Kempsey v. McGinniss, 21 Mich. 142, 143; Grier J. in Winans v. New York& ErieRy. 21 How. (U. S.) 100. Medical Books. It has been decided in some states that medical books, even of received authority, cannot be read to the court or jury, if objection is made. Ash- worth u. Kittridge, 12 Cash. 193; Wash- burn V. Cuddihy, 8 Gray, 430 ; Common- wealth (.-. Wilson, 1 Gray, 337 ; Carter v. State, 2 Ind. 617 ; Harris v. Panama E. E. Co. 3 Bosw. (N. Y.) 7 ; Powler v. Lewis, 25 Texas, 380 ; Davis v. State, 38 Md. 15 ; Commonwealth v. Sturtivant, 117 Mass. 122. But in other states such books have been allowed to be read, subject to the dis- cretion of the court, with proper explana- tions of technicalities or phrases not gen- erally understood. Standenmeier v. Wil- liamson, 29 Ala. 558; Meckle v. State, 37 VOL. I. 27 Ala. 139 ; Bowman u. Woods, 1 Green (la.), 441 ; Lunning u. State, 1 Chand. (Wis.) 178; Wale •,. Dewitt, 20 Texas, 398 ; Melvin u. Easley, 1 Jones (Law), 386. Books of science or art are made admissible by statute in Iowa. Brodhead V. Wiltse, 35 Iowa, 429. It seems to be no objection to an opinion of a medical expert that it is based partly on his ob- servation and e-xperience and partly on information derived from books. State d. Terrell, 12 Rich. (Law) 321. See Par- ker V. Johnson, 25 Geo. 576. — Contents of Will, Sj-c. A will cannot be avoided merely because it appears to be imprudent, un- reasonable, or unaccountable. Higgins v. Carlton, 28 Md 118; Munday u. Taylor, 7 Bush (Ky.), 491 ; Davis v. Calvert, 5 Gill & J. 269, 300 ; Ross v. Christman, 1 Ired. (Law) 209. So, on the other hand, though the will bear the impress of being dictated by wisdom and by the exercise of a sound mind; yet, if in fact it be true that its maker did not at the time pos- sess a sound mind, if he was insane, if by reason of weakness or imbecility he was what in law is known as non compos mentis, the will would be without legal effect. Potter J. in Harper v. Harper, 1 N. Y. Sup. Ct. 351, 354. But the char- acter and contents of the will itself, con- sidered either by themselves o\ in con- nection with the property and estate dis- posed of by the testator, with his family and relatives and their claims upon him, and with his own situation and the cir- cumstances under which the will was made, are important matters of observa- tion, and sometimes furnish controlling proof respecting the soundness of the tes- tator's mind at the time of making his will. Harper v. Harper, 1 N. Y. Sup. Ct. 351 ; Kempsey u. McGinniss, 21 Mich. 123 ; Wells J. in Howe v. Howe, 99 Mass. 90 ; Van Alst v. Hunter, 5 John. Ch. 148 ; Clark o. Fisher, 1 Paige, 171; Harrel v. Harrel, 1 Duvall (Ky.), 203 ; Eoss v. Christ- man, 1 Ired. (Law) 209; Munday v. Tay- lor, 7 Bush (Ky.), 491 ; Peck v. Carey, 27 N. Y. 9 ; Gambault a. Public Adminis- 418 OF PROBATE. [PT. I. BK. IV. the country ; and he denied that the deceased had left any estate but what was at Naples ; and this plea was held good, (o) But if a foreign executor should find it necessary to institute a unless his suit here, to recover a debt due to his testator, he must institute a prove the will here also, or a personal representative must suit: ije constituted by the court of probate here to administer ad litem. ( p") So an executor having obtained probate in Ireland cannot bring an action here as executor, even to recover Irish assets, without having obtained probate in England also, (g) For trator, 4 Bradf. Sur. 226 ; Davis v. Cal- vert, 5 Gill & J. 269 ; Kevill v. Kevill, 6 Amer. Law Reg. (N. S.) 79 ; Roberts u. Trawick, 13 Ala. 68 ; Couch v. Couch, 1 Ala. 519 ; Torakins v. Tomkins, 1 Bailey, 92 ; Patterson v. Patterson, 6 Serg. & R. 56 ; Duffield v. Morris, 2 Harring. 381 ; Weir's case, 9 Dana, 443; Addington v. Wilson, 5 Ind. 137 ; Kenworthy v. Wil- liams, 5 Ind. 375 ; Goble v. Grant, 2 Green Ch. 629, 635, 636. Other wills of the tes- tator, not offered for probate, have been admitted in evidence upon questions of capacity and undue influence. Love v. Johnston, 12 Ired. 355.] (o) Jauncey v. Sealey, 1 Vern. 397. See, also, Currie v. Bircham, 1 Dowl. & Ryl. 35 ; Hervey v. Fitzpatrick, Kay, 421 ; post, pt. 1. bk. V. ch. II. § I. {p) Attorney General v. Cockerell, 1 Price, 179, by Richards, Baron ; Mitf. PI. 177, 4th ed.; Tyler v. Bell, 2 My. & Cr. 89 ; Attorney General v. Bouwens, 4 M. & W. 193; [Dixon v. Ramsay, 3 Cranch, 319; Lord Romilly M. R. in Hood v. Lord Barrington, L. B. 6 Eq. 222 ; Nay- lor V. Moffatt, 29 Missou. 126 ; Gilman c;. Gilman, 54 Maine, 453 ; Trecothick v. Austin, 4 Mason, 16 ; Reynold v. Tor- rance, 2 Brev. (S. Car.) 59; Caldwell v. Harding, 5 Blatch. 501 ; Kerr o. Moon, 9 Wheat. 565 ; Sanders v. Jones, 8 Ired. Eq. 246 ; Graeme v. Harris, 1 Dallas, 456 ; Glenn v. Smith, 2 Gill & J. 493 ; Kraft V. Wickey, 4 Gill & J. 332 ; Pen- wick V. Sears, 1 Cranch, 259 ; Dickinson V. M'Craw, 4 Rand. 158 ; Stevens v. Gay- lord, U Mass. 256 ; Riley v. Riley, 3 Day, 74 ; Hobart v. Conn. Turnp. Co. 15 Conn. 145 ; Doolittle v. Lewis, 7 John. Ch. 47 ; Smith V. Webb, 1 Barb. 230 ; Taylor v. Barron, 35 N. H. 495, and cases cited ; Clark V. Clement, 33 N. H. 567 ; Danger- field u. Thurston, 2 Martin (La.), 232 ; Clark V. Blackington, 1 10 Mass. 373. The executor is bound to take foreign probate for the purpose of collecting debts in other states, if the interests of the estate require it. If he does not take such probate and the estate suffers loss in consequence, it is a devastavit. Henderson J. in Helme v. Sanders, 3 Hawks, 566. But in some states, a foreign executor or administrator has a right to sue for assets belonging to the testator's or intestate's estate without qualifying as executor or administrator therein. Bells v. Nichols, 38 Ala. 678 ; Cloud V. Golightly, 5 Ala. 64 ; Glassell v. Wilson, 4 Wash. 591 ; Moore v. Fields, 42 Penn. St. 467 ; Stephens v. Smart, 1 Law Rep. 471 ; Morgan v. Gaines, 3 A. K. Marsh. 613 ; Gray v. Patton, 2 B. Mon. 12 ; Price v. Morris, 5 McLean, 4 ; Rock- ham 0. Wittkowski, 64 N. Car. 464. See Keefer w. Mason, 36 111. 406 ; Colbert v. Daniel, 32 Ala. 314. And so the statute of limitations runs against a claim by the foreign executor or administrator in those states just as though he had been ap- pointed there. Manly v. Turnipseed, 37 Ala. 522; Bell v. Nichols, 38 Ala. 678. In such cases the executor or adminis- trator must be qualified to sue according to the laws of the state under which he claims to have been appointed. Newton V. Cooke, 10 Ark. 169.] (?) Carter v. Crofts, Godb. 33 ; Whyte V. Rose, 3 Q. B. 508, per Tindal C. J. CH. II. § VI.J OF THE WILLS OF FOREIGNERS, ETC. 419 the courts here will not recognize any will of personalty except such as the court of probate of this country has by the probate adjudged to be the last will, (r) 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 Eng- land 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, (s) So to a bill which seeks an account of the assets of an intestate, who died in India, possessed by a personal represen- tative there, a personal representative of the * intestate, consti- tuted 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. («) 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 court of probate of this coun- try, (m) [Administration may be granted in Massa- post, 1929, and note; Riley v. Moseley, chusetts upon the estate, situated there, of 44 Miss. 37 ; Anderson v. Gregg, 44 Miss. a person who died while residing in an- 1 7 ; Noonan v. Bradley, 9 Wallace, 394 ; other state, although the deceased left a, Parsons v. Lyman, 20 N. Y. 103. But will which has not been proved and al- see McNamara i;. Dwyer, 7 Paige, 239 ; lowed in the state of his domicil. Bow- Tunstall w. Pollard, 11 Leigh, l.J It ap- doin V. Holland, 10 Cush. 17, 21 ; Stevens pears from an able note to the American V. Gaylord, 11 Mass. 256, 263.] edition of the present treatise (which Mr. (r) Price v. Dewhurst, 4 My. & Cr. 80, Francis I. Troubat has done the author the 81 ; Bond v. Graham, 1 Hare, 484 ; Las- honor of publishing at Philadelphia), that seur V. Tyrcounel, 10 Beav. 28 ; [Hender- it has been established as a rule, by re- son J. in Helmeu. Sanders, 3 Hawks, 566.] peated decisions in many of the states, that (s) Logan v. Fairlie, 2 Sim. & Stu. 284 ; the executor or administrator of a person 1 My. & Cr. 59. See, also, Lowe v. Fair- who dies domiciled in Great Britain, or lie, 2 Madd. 101. any other foreign country, cannot main- (i) Tyler v. Bell, 2 My. & Cr. 89 ; tain an action in the United States, by vir- Bond V. Graham, 1 Hare, 482. &eepost, tue of letters testamentary or administra- pt. v. hk. I'l. ch. II. tion granted to him in the country where (u) 3 Q. B. 507. See, also, M'Mahon, the deceased died; [Davis u. Phillips, si V. Eawlings, 16 Sim. 429; Enohin v. Texas, 564 ; Mansfield i>. Turpin, 32 Geo. Wylie, 10 H. L. Cas. 19, per Lord Cran- 260; Karrick v. Pratt, 4 Greene (Iowa), worth ; [Chapman v. Fish, 6 Hill, 555 ; 144 ; Wood v. Gold, 4 McLean, 577 ; and McClure u. Bates, 12 Iowa, 77 ; Cockle- that such letters do not impose on him any ton u. Davidson, 1 Brev. (S. Car.) 15; liability to be sued there. Norton w. Pal- [362] 420 OF PROBATE. [PT. I. BK. IV. Likewise, if a will be made in a foreign country, and proved there, disposing of personal property in this country, the And gen- but a will abroad of executor must prove the will here also, (x) mer, 7 Cush. 523 ; Goodwin v. Jones, 3 Mass. 514; Dangerfield v. Thurston, 20 Martin (La.), 232; Vanghan v. Northnp, 15 Peters, 1 ; Kerr v. Moon, 9 Wheat. 565 ; Caldwell v. Harding, 5 Blatch. 501 ; Melius V. Thompson, 1 Cliff. 125; Pond v. Makepeace, 2 Met. 114; Riley v. Riley, 3 Day, 74 ; Noonan u. Bradley, 9 Wallace, 394; Swatzel «. Arnold, 1 Woolw. 383; Davis V. Phillips, 32 Texas, 564 ; Car- michael v. Ray, 5 Ired. Eq. 365 ; Riley v. Moseley, 44 Miss. 37 ; Anderson v. Gregg, 44 Miss. 170; Brookshire v, Dubose, 2 Jones Eq. 276 ; Sayre v. Helme, 61 Penn. St. 299 ; Middlebrook v. Merchants' Bank, 4 Barb. 481; Eay w. Haven, 3 Met. 109; Beaman i;. Elliot, 10 Cush. 172; Clark u. Clement, 33 N. H. 667 ; Willard v. Ham- mond, 21 N. H. 382; Goodall a. Marshall, 11 N. H. 88, 89 ; Trecothick v. Austin, 4 Mason, 32, 33 ; Boyd v. Lambeth, 24 Miss. 433; Holcomb v. Phelps, 16 Conn. 127 ; Rand v. Hubbard, 4 Met. 255 ; Vaughn v. Barret, 5 Vt. 333; Langdon v. Potter, 11 Mass. 313; Pinney v. McGregory, 102 Mass. 186, 192; Picquet v. Swan, 3 Ma- son, 469 ; Taylor o. Barron, 35 N. H. 484, 495; Smith general appointment of executors, has been duly authenticated by those executors in the proper court in the foreign country, it is the duty of the probate court in this country to clothe the foreign ex- ecutors with ancillary letters of probate to enable them to get pos- session of that part of the personal estate which was locally situate in England, (e) * In Laneuville v. Anderson, (/) it was held, that (b) Ante, 362, 363 ; Larpent v. Sindry, (d) In the Goods of Bead, 1 Hagg. 474. 1 Hagg. 382 ; In the Gooda of Cringan, 1 See 4 My. & Cr. 84 ; 7 Sim. 102 ; In the Hagg. 549. See, also. In the Goods of Goods of Smith, 2 Kobert. 335. See, also, Rioboo, 2 Add. 461 ; Viesca u. D'Aram- In the Goods of the Duchess of Orleans, burn, 2 Curt. 277 ; In the Goods of Hen- 1 Sw. & Tr. 253 ; [Bloomer v. Bloomer, 2 derson, 2 Robert. 144 ; In the Goods of Bradf. Sur. 339.] Smith, lb. 332. (e) Enohin v. Wylie, 10 H. L. Gas. 14, (c) 1 Hagg. 382. by Lord Westbury. When this case was (/) 2 Sw. & Tr. 24. vol.. I. 28 [370] [371] 434 OF PROBATE. [PT. I. BK. IV. where in the case of a domiciled Frenchman, the French court had decreed that the time limited by the French law for the execution of the executorship thereby created had passed, and that the ex- ecutor had no more right to intermeddle in the estate of the testa- tor, and that the parties beneficially interested were the only per- sons who had a right to interfere, the court held itself bound by such decree, and refused to grant probate (with respect to person- alty in England) to such an executor. So, in Crispin v. Dog- lioni, (^) Sir C. Cresswell held, that the judgment of the court of domicilof the deceased is binding on the court of a foreign country, in all questions as to the succession and title to personal property, whether under testacy or intestacy, where the same questions be- tween the same parties are in issue in the foreign court which have been decided by the court of domicil. (K) When the deceased has left a will, valid by the law of his domi- cil, and probate, either original or ancillary, has been obtained here, the duty of the court in administering the property, suppos- ing a suit to be instituted for its administration, is to ascertain who by the law of domicil are entitled under the will, and that being' ascertained, to distribute the property accordingly. The duty of administration has to be discharged by the courts of this country, though in the performance of that duty they will be guided by the law of the domicil. (i) before Sir C. Cresswell, 1 Sw. & Tr. 118, icil, it must contain a distinct averment it was contended, it should seem, that the that it was duly executed according to the executors were, according to the Russian law of domicil. An averment that the will law, executors for the property in Russia was admitted to probate by a competent only, and therefore not entitled to probate court of the alleged domicH is insufficient. in respect of the property in England. Isherwood v. Cheetham, 2 Sw. & Tr. 607. But the learned judge appears to have de- [See Helme v. Sanders, 3 Hawks, 563.] cided that they were entitled to probate, (t) 10 H. L. Cas. 19, by Lord Cran- not as following the Russian grant, but be- worth. It appears to have been laid down cause he was of opinion, on the construe- by Lord Westbury that the court of the tiou of the will, that the English property domicil is the forum concursAs to which was given to them. The house of lords, legatees under the will of a testatoi-, or the however, decided that he died intestate as parties entitled to distribution of the es- to the property, but that the executors tate, are required to resort. (See, also were entitled to probate according to the Crispin v. Doglioni, 3 Sw. & Tr. 99 by Sir doctrine above stated. [See Henderson J. C. Cresswell; [Stokely's Estate 19Penn. in Helme v. Sanders, 3 Hawks, 566.] St. 476.]) But unless the point in dispute {g) 3 Sw. & Tr. 96 ; [L. B. 1 H. L. 301.] has been already decided by the court of (/i) But where a declaration propound- domicil, it is apprehended that the court ing a will depends on the due execution, of this country in which an administration according to the law of the testator's dom- suit is instituted must decide for itself CH. II. § VI. J OF THE WILLS OF FOREIGNERS, ETC. 435 * It is clear, however, that the mere residence of a British sub- what, according to the law of the domicil, is the true construction of the will, and what are the rights of the parties claiming to be interested in the estate in cases as well of intestacy as of testacy. [See Carpenter V. The Commonwealth, 17 How. (U. S.) 456 ; Williamson v. Branch Bank of Mo- bile, 7 Ala. 906 ; Treadwell v. Eainey, 9 Ala. 590; Holcomb v. Phelps, 16 Conn. 127 ; Embry „. Millar, 1 A. K. Marsh. 300; Nat o. Coons, 10 Missou. 543. Where the constrnction of the will is to be regulated by foreign law, the opinion of an advocate versed in such law is ob- tained for the information and guidance of the English court on which devolves the task of construing it ; but if the point in dispute depends upon principles of construction corainon to both countries, the court will adjudicate upon the ques- tion, according to its own view of the case, without having recourse to the assistance of a foreign jurist. Bernal v. Bernal, 8 My. & Cr. 559 ; Collier v. Rivas, 2 Curt. 855 ; Earl Nelson v. Earl Bridport, 8 Beav. 527, 547 ; Yates v. Thompson, 3 CI. & Fin. 586 ; ante, 366, note (re). As a will in re- gard to movable property is construed ac- cording to the law of the domicil, there is, it will be observed, nothing on the face of it which gives the peruser the slightest clue as to the nature of the laws by which its construction is regulated. It may have been made in England, be written in the English language, the testator may have described himself as an Englishman, and it may have been proved in an English court ; and yet, after all, it may turn out, from the extrinsic fact of the maker being domiciled abroad at his death, that the will is wholly withdrawn from the influ- ence of English jurisprudence. Such ques- tions may arise, and indeed have most fre- quently arisen in regard to the wills of Englishmen domiciled in Scotland, or of Scotchmen domiciled in England, the law of succession and testamentary disposition being, in some respects, different in these two sections of the TJliited Kingdom. Thus, in the case of Balfour v. Scott, stated in Somerville v. Lord Somerville, 5 Ves. 750, and cited 2 Ves. & B. 131, where a per- son domiciled in England died intestate, leaving real estate in Scotland, the heir was one of the next of kin, and claimed a share of the personal estate. To this claim it was objected, that, by the law of Scot- land, the heir cannot share in the personal property with the other next of kin, ex- cept on condition of collating the real es- tate; that is, bringing it into mass with the personal estate, to form one common subject of division. Ersk. Inst. Law of Scotland, 701 (5th ed.). It was deter- mined, however, that he was entitled to take his share without complying with that obligation, the case being regulated as to the movable property by the Eng- lish law. So, in the Case of Drummond, cited, 2 Ves. & B. 132, where a person domiciled in England had real estate in Scotland, upon which he granted a herita- ble bond to secure a debt contracted in England. He died intestate, and the ques- tion was, by which of the estates this debt was to be borne f It was clear that, by the English law, the personal estate waa the primary fund for the payment of debts. It was equally clear that, by the law of Scotland, the real estate was the primary fund for the payment of the heritable bond. It was said for the heirs, that the personal estate must be distributed according to the law of England, and must bear all the burdens to which it is by that law subject. On the other hand, it was contended that the real estate must go according to the law of Scotland, and bear all the burdens to which it is by that law subject. It was determined that the law of Scotland should prevail, and the real estate must bear the burden. Speaking of these two cases. Sir Wm. Grant has observed (2 Ves. & B. 132) ; "In the first case, the disability of the heir did not follow him to England, and the personal estate was distributed as if both the domicil and the real estate had been in England. In the second, the dis- [372] 43« OF PROBATE. [PT. I. BK. IV. ject in a foreign country, at the time of making his will the valid- ity of the will of a and his decease, did not, in the case of a testator dying ject merely before August 6, 1861, render a will valid because it abroad, conformed with the law of the country where he so re- ability to claim exoneration oat of the personalty did follow him into England ; and the personal estate was distributed as if both the domicil and the real estate had been in Scotland." 1 Jarman Wills, (3d Eng. ed.) 6-8. Eoreign laws are to be proved as facts ; and the question of their existence and interpretation must be de- termined in each cause on the evidence adduced in it. McCormick v. Garnett, 5 De G., M. & G. 278 ; Fowler J. in Fergu- son V. Clifford, 37 N. H. 98 ; 1 Greenl. Ev. § 486; Story Confl. Laws, §§ 637,638; De Sobry v. De Laistre, 2 Harr. & J. 193 ; Trasher o. Everhart, 3 Gill & J. 234; Brackett v. Norton, 4 Conn. 517 ; Dyer v. Smith, 12 Conn. 384; Andrews v. Her- riott, 4 Cowen, 515, 516, note; Tyler v. Trabue, 8 B. Mon. 306 ; Territt v. Wood- ruff, 19 Vt. 182; Knapp v. Abell, 10 Allen, 488 ; Palfrey o. Portland, Saco & Portsmouth E. R. Co. 4 Allen, 56 ; Haven K.Foster, 9 Pick. 129, 130; Campion v. Kille, 1 Beasley (N. J.), 229 ; Talbot v. Seeman, 1 Cranch, 38 ; Church v. Hub- bart, 2 Cranch, 187, 236, 237 ; Ennis v. Smith, 14 How. (U. S.) 426 ; Jn re Cop- pin, L. R. 2 Ch. Ap. 53, 54; 1 Dan. Ch. Pr. {4th Am. ed.), 95, 864; Wilson v. Smith, 5 Yerger,398, 399 ; M'Hea v. Matr toon, 13 Pick. 53, 59 ; Gardner v. Lewis, 7 Gill, 377; Baltimore & Ohio R. E. v. Glenn, 28 Md. 287. When the evidence consists of the parol testimony of experts as to the existence or prevailing construc- tion of. a foreign statute, or as to any point of unwritten foreign law, the jury must determine what the foreign law is, as in the case of any controverted fact depending upon like testimony. Kline V. Baker, 99 Mass. 254, 255 ; Holman v. ten document, statute, or judicial opinion, the question of its construction and ef- fect is for the court alone. Kline v. Ba- ker, 99 Mass. 255 ; Di Sora v. Phillipps, 10 H. L. Cas. 624 ; Bremer u. Freeman, 10 Moore P. C. 306; Church v. Hubbart, 2 Cranch, 187; Ennis v. Smith, 14 How. (XJ, S.) 400; Owen v. Boyle, 15 Maine, 147; People v. Lambert, 5 Mich. 349; State i). Jackson, 2 Dev. 563; TrashSr v. Everhart, 3 Gill & J. 234; Pickardti. Bai- ley, 26 N. H. 169, 170; Hall v. Costello, 48 N. H. 179 ; Delafield v. Hand, 3 John. 310; Lincoln u. Battelle, 6 Wend. 482; Francis v. Ocean Ins. Co. 6 Cowen, 429. In Ferguson v. Clifford, 37 N. H. 98, Fow- ler J. said : " Foreign laws are to be proved as facts, by evidence addressed to the court, and not to the jury." Nesmith J. in Hall v. Costello, 48 N. H. 179. See, also. Story Confl. Laws, §§ 638, 638 a ; Pickard v. Bailey, 26 N. H. 152, 169, 170. It is not necessary that the evidence of the foreign law should come from lawyers. It is sufficient, if the court is satisfied that the witness is well informed upon the sub- ject of the law to be proved. Pickard v. Bailey, 26 N. H. 152 ; Hall v. Costello, 48 N. H. 176; Brush v. Wilkins, 4 John. Ch. 520; Mauri v. Heffernan, 13 John. 58; Story Confl. Laws, § 642 ; Carnegie o. Morrison, 2 Met. 404, 505. Courts, in the absence of evidence to the contrary, will presume the foreign law to be the same as their own. Story Conil. Laws, §§ 637, 637 a; Russell v. Kitchen, 3 Ir. C. L. Rep. 613; Palfrey v. Portland, Saco & Portsmouth R. E. Co. 4 Allen, 56 ; Chase V. Alliance Ins. Co. 9 Allen, 311. See Scammell v. Sewell, 5 H. & N. 740, per Byles J. Foreign written law may be King, 7 Met. 384; Dyer y. Smith, 12 Conn, proved by parol evidence of a witness, 384; Moore v. Gwynn, 5 Ired. 187; In- learned in the law of a foreign country, graham v. Hart, 11 Ohio, 255; Barrows without first attempting to obtain a copy of «. Downs, 9 R. I. 446. And when the ev- the law itself. Baron De Bode v. Reginam, idence admitted consists entirely of a writ- 10 Jur. 217 ; S. C. 8 Q. B. 208. But see CH. 11. § VI.j OF THE WILLS OF FOEEIGNEES, ETC. 437 sided, (y) Thus the Duchess of Kingston, who had does not taken up her residence in France (where she died)! hereonfor- under letters patent, registered in the parliament of Pa- though"'' ris, made a will at Paris, which (being neither holo- Xoad. Genl. Sts. Mass. c. 131, § 65. The wit- States of America u. McEae, L. R. 3 Ch. ,§ 65. ness not only gives the words of the law, but the meaning as applicable to the case in hand. Earl Nelson v. Earl Bridport, 10 Jur. 871 ; 8 Beav. 527, 554. A professional or official witness, giving evidence as to foreign law, may refer to foreign law books to refresh his memory, or to correct or con- firm his opinion ; but the law itself must be taken from his evidence. The Sussex Peerage, 11 CI. & Fin. (Am. ed.) 85, and cases cited in note (3) ; In re Coppin, L. R. 2 Ch. Ap. 53, 54. In the Sussex Peer- age 11 CI. & Fin. 115, Lord Brougham said : " The witness may refer to the sources of his knowledge, but it is per- fectly clear that the proper mode of prov- ing a foreign law is not by showing to the house the book of the law ; for the house has not the organs to know and to deal with the text of that law, and, therefore, requires the assistance of a lawyer who knows how to interpret it." See Dalrym- ple V. Dalrymple, 2 Hagg. Cons. R. 54 ; Ennis v. Smith, 14 How. (U. S.) 426-430 ; Cocks V. Purday, 2 Car. & K. 269. It is said to appear rather questionable whether the judge has a right to resort to the for- eign law itself for information where the evidence of the witness is not satisfactory. Lord Chelmsford in Di Sora v. Phillipps, 10 H. L. Cas. 640. In the same case, 10 H. L. Cas. 633, Lord Cranworth said : " Where a written contract is made in a for- eign country, and in a foreign language, the court, in order to interpret it, must first obtain a translation of the instrument ; secondly, an explanation of the terms of art (if it contains any) ; thirdly, evidence of any foreign law applicable to the case ; and fourthly, evidence of any peculiar rules of construction, if any such rules exist by the foreign law. With this assistance the court must interpret the contract itself on ordinary principles of construction." See per Lord Chelmsford, S. C. p. 639 ; United Ap. 85, 86 ; Shore' u. Wilson, 9 CI. & Fin. 511. In United States of America v. Mc- Rae, L. E. 3 Ch. Ap. 86, where an act of congress was the subject under considera- tion, Lord Chelmsford, having remarked that the assistance of a translator was not required, and that it was not suggested that there were any words in the act which bore a peculiar meaning different from the ordinary one, nor that the acts of the American legislature have a construction peculiar to themselves, added : "I do not see that there is any impediment to an English judge, with the act of congress before him, construing it for himself with, out further aid, just as he would an Eng- lish act of parliament." See Story Confl. Laws, § 638. For a further statement of the modes of proof of foreign laws, see Story Confl. Laws, § 639 et seq. English courts may now ascertain what the foreign law is, by sending cases for the opinion of foreign courts ; but, unless they are in countries under the government of the queen, a convention must first be entered into with the foreign government. 22 & 23 Vict. i;. 63; 24 & 25 Vict. u. 11 ; 1 Dan. Ch. Pr. (4th Am. ed.) 864, note (2) ; 2 lb. 1142-1146. But they are not bound to adopt foreign rules of evidence or pro- cedure, every court as to these being gov- erned by its own technical rules. Yates V. Thomson, 3 CI. & Fin. 544 ; Bain v. Whitehaven &c. Railway Co. 3 H. L. Cas. 1, 18, 19 ; Don «. Lippmann, 5 CI. & Fin. 1, 14, 15, 16.] As to staying pro- ceedings on the ground that the domicil is not English, see Duprez v. Veret, L. R. 1 P. & D. 583. {j) By Stat. 24 & 25 Vict. c. 114, s. 1, the distinction between residence and dom- icil in the case of a British subject who made a will out of the kingdom, and died after August 6, 1861, has become imma- terial. See post, 374. 438 OF PROBATE. [PT, I. BK. IV- graphic nor executed in the presence of two witnesses and one notary, but in the presence of three witnesses merely) according to the then custom of Paris (1786), was absolutely null and void. But the testatrix being by birth an Englishwoman, and the will being in English, and duly executed according to English forms, it was not only admitted to probate here, but was also deemed valid in France. (A;) The law on this subject was fully considered in the privy council in the case of Croker v. Marquis of Hertford, (I) where it was decided that the provisions of the new The wills wills act (1 Vict. c. 26) apply to testamentary papers to'sMhT' made in a foreign country by a domiciled English- ^^•- man. (m) * The nile above laid down applies, lastly, to the case of the in- stance of a person not a native of this country, but dom- Willofa . ., , , ^ , . , 1 ■ ■, , X 1 ■ xT_ person not iciled here at the time of his death. In this case, the but dom'i- law of England is to regulate the decision as to the valid- ciied here, j^y ^j ^ ^-j^ ^1 personal estate, or what are the rights under it. (w) So where a native of Scotland, domiciled in Eng- land, executed, during a visit to Scotland, and deposited there, a will of personalty prepared in the Scotch form ; it was held that the will must be construed, not according to the Scotch, but the English law. (o) The rules of law for ascertaining the domicil are considered in a Rules for Subsequent part of this work, conjointly with the rules of fnrdonU- ^^^ ^® *° ^^^ distribution of the effects of deceased per- cii- sons who have died domiciled in a foreign country, (p) It must be here observed, that where a will is made dispos- Will made ing of personal property situate in this country, under power *coa- ^ power of appointment, and it is duly executed in t t™*^^^' compliance with the requisites of the power, it has terms of been held that such a will ought to be admitted to pro- the power, , . , . . , , . , '■ but not bate in this country, notwithstanding it be not properly aWyT"t'ie executed according to the forms prescribed by the testa- It) 2 Add. 21. C. 4 My. & Cr. 76, 82; Yates v. Thomp- {l) i Moore P. C. C. 339. See, also, De son, 3 CI. & Fin. 544. See post, pt. in. Zichy Ferraris v. Croker, 3 Curt. 468, bk. in. ch. ii. § i. as to the construction 486. of the will of a testator domiciled abroad. (m) See, also, accord. Robins v. Dol- (o) Anstruther v. Cbalmer, 2 Sim. 1 • phiii, 1 Sw. & Tr. 37 ; S. C. nomine Dol- but see now 24 & 25 Vict. c. 114; post, phin V. Robins, 7 H. L. Cas. 390. 374. (n) Price v. Dewhurst, 8 Sim. 279 ; S. (p) Post, pt. in. bk. iv. ch. i. § v. [373] OH. II. § VI.] OF THE WILLS OF FOREIGNERS, ETC. 439 mentary law of the country in which the testator was i^^ <>* *« domiciled at the time of his death. (5-) domicii. But where a feme covert who has power to appoint by will, dies domiciled in England, but resident in France, her will, though valid, in respect of formalities by the French law, is not a due ex- ecution of the power, unless properly executed according to the English law. (r) * But a power to appoint " by a will duly executed," is well ex- ercised by a will good according to the law of the country of the testator's domicii, though ill executed according to the law of England, (s) With respect to wills made by British subjects dying after Au- gust 6, 1861, the doctrines, which there has been occa- ^^ ^^ ^^.jj^ sion to state in the previous part of this section, have made bj u . ,. , British sub- become, to a great extent, inapplicable, and the law jects dying has been most materially altered, by reason of the stat. gust 6, 24 & 25 Vict. c. 114. ^*"- By the first section of that act, " every will and other stat. 24 & testamentary instrument made out of the United King- 114. 'Viiis dom by a British subject (whatever may be the dom- Bridsh^ icil of such person at the time of making the same or at '"[■'^f ',1 the time of his or her death) shall, as regards personal kingdom to estate, be held to be well executed for the purpose of be- ted if made ing admitted in England and Ireland to probate, and in to tiieiaw Scotland to confirmation, if the same be made according ^^ere^'*''* to the forms required, either by the law of the place where ™?'^®' ?■" ■*■'•' ■*■ where tea- the same was made, or by the law of the place where tator was such person was domiciled when the same was made, or or had his by the laws then in force in that part of her majesty's origin! ° dominions where he had his domicii of origin." (s^) (9) Tatnall v. Hankey, 2 Moore P. C. (s) D'Huart v. Harkness, 34 L.J. 311, C. 342. The opinion to the contrary ex- coram M. E. ; S. C. 11 Jur. N. S. 633. pressed in Cruttenden u. Fuller, 1 Sw. & («') [Itisafrequent provision of statutes Tr. 441, 454, is incorrect. In the Goo'ds that ail wills shall be treated as valid of Alexander, 29 L. J., P. M. & A. 93 ; which are valid by the laws of the state [Wallace v. Att. Gen. L. R. 1 Ch. Ap. 1, where they are made and executed. Such 9 ; Ee Lovelace, 4 De G. & J. 340 ; Ee is the law of Massachusetts. Genl. Sts. c. Wallop's Trust, 1 De G., J. & S. 656 ; Re 92, § 8. A strong case under this law Capdevielle, 2 H. & C. 997 ; In re Hally- was Bayley v. Bailey, 5 Gush. 245. And burton, L. E. 1 P. & D. 90.] in Slocomb o. Slocomb, 13 Allen, 38, it (r) Ee Daly's Settlement, 25 Beav. was decided that a nuncupative will, made 456. in another state, valid by the laws of that [374] 440 OF PROBATE. [PT.I. BK. IV. made by British subjects in this king- dom to be admitted if made ac- cording to local law- Sect. 2. " Every will and other testamentary instrument made S. 2. Wills within the United Kingdom by any British subject (whatever may be the domicil of such person at the time of making the same, or at the time of his or her death), shall, as regards personal estate, be held to be well exe- cuted, and shall be admitted in England and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made." (s^) Sect. 3. "No will or other testamentary instrument shall be held to be revoked or to have become invalid, nor shall the construction thereof be altered by reason of any * sub- sequent change of domicil of the person making the same." («^) Sect. 4. " Nothing in this act contained shall invalidate any S. 4. Noth- will or other testamentary instrument, as regards personal act to i'n-^ estate, which would have been valid if this act had not wtlUother- ^^^^ passed, except as such will or other testamentary wise made, instrument may be revoked or altered by any subsequent will or testamentary instrument made valid by this act." Sect. 5. " This act shall extend only to wills and other testa- S. 3. Change of domicil not to in- validate will. other state, but which would have been invalid if it had been made in Massachu- setts, may be admitted to probate under the above statute and will have full effect in Massachusetts.] (s'J [For a recent case under this act, see In re Keid, L. K. 1 P. & D. 74. In Mas- sachusetts a will of real or personal estate, made and executed in conformity with the law existing at the time of the execution thereof, shall be effectual to pass such es- tate. Genl. Sts. c. 92, § 7. The provi- sions of this statute include nuncupative wills, made and valid in another state, though they would not have been valid if made in Massachusetts. Slocomb v. Slo- comb, 13 Allen, 38.] (s') [In cases where no statute on the subject existed, it has been considered that if, after making a will, valid by the laws of the place where the testator was domiciled, he changes his domicil to a [375] place by the laws of which the will thus made is not valid, and there dies, the will is void. If, however, before his death, he should return and resume his former dom- icil, where his first will or testament was made, its original validity will revive also. Story Confl. Laws, § 473 ; 2 Greenl. Ev. § 668; Burge Col. & For. Law, 550, 581. It has been held that the validity and effect of a will is to be determined according to the law in force at the time the will he- comes operative, that is, at the decease of the testator. Gushing v. Aylwin, 12 Met. 169; Pray t;. Waterson, 12 Met. 262; De Peyster «. Clendining, 9 Paige, 295 ; Bishop V. Bishop, 4 Hill, 138 ; Lawrence V. Hebbard, 1 Bradf. Sur. 252 ; but see Gable v. Daub, 40 Penn. St. 217 ; Mullen V. McKelvy, 5 Watts, 399 ; Murry v. Murry, 6 Watts, 353 ; Lewis v. Lewis, 2 Watts & S. 455 ; Mullock v. Souder, 5 Watts & S. 198 ; Kurtz v. Saylor, 20 Penn. St. 205.] PRACTICE OF THE COURT. CH. II. § VII.] mentary insti passing of this act " (Aug. 6, 1861). 441 mentary instruments made by persons who die after the S. 5. Ex- ■' ■' '^ tent of act. SECTION VII. Practice of the Court in certain other Particulars as to granting Probate. It is only under special circumstances that the ecclesiastical court directed costs to be paid out of the estate of the in what deceased. Indeed, it is only in modern times that the decreed out court found itself authorized to do so. (t") It did not tftl^'oTthe follow that a party was entitled to his costs out of the deceased, estate, because there was '■'■justa causa litigandi; " (u) but the principle * which guides the court in decreeing such costs is, that the party was led into the contest by the state in which the de- ceased left his papers, (ai) Two rules have recently been laid down by Sir J. P. Wilde for the future guidance of the court of probate : First, if the cause of litigation takes its origin in the fault of the testator, or {t) Dean v. Eussel, 3 Phillim. 334. [See, ante, 340, note (jo).] As to the scale on which the costs in such cases are to be taxed, see Edmunds v. Unwin, 2 Curt. 641. (u) Barwick v. MuUings, 2 Hagg. 234. In Nicholls v. Binns, 1 Sw. & Tr. 239, 241, Sir C. Cresswell said that by the practice of the ecclesiastical courts, where there was a fair case for inquiry, the next of kin might call on the executors to prove the will in solemn form, and, generally speak- ing, at the expense of the estate. But the same judge refused to allow the next of kin their costs out of the estate, where they had chosen to raise a question of domicil, which was likely to put the exec- utors to great expense. Onslow v. Can- non, 2 Sw. & Tr. 136. See, also, Seaton v. Sturch, 29 L. J., P. M. & A. 195. But where in opposition to a will the defendant relies on difficult points of law, he will, though unsuccessful, be generally entitled to his costs out of the estate. Robins v. Dolphin, 1 Sw. & Tr. 518. And the gen- eral proposition, that where a, party enti- tled in distribution simply calls for proof of a will, and merely cross-examines the witnesses, without any misconduct in the suit, he is entitled to have his costs out of the estate, is fully supported by the author- ities. Prinsep v. Dyce Sombre, 1 Moore P. C. 232 ; Swinfen v. Swinfen, 1 Sw. & Tr. 283. But it is otherwise where the proceedings were not taken simply for the purpose of getting the opinion of the court on the will, but were ancillary to another suit pending in respect of the real estate. 1 Sw. & Tr. 283. As to whethei- inter- veners are to be allowed costs out of the estate, see Shaw v. Marshall, 1 Sw. & Tr. 129. See, further, as to costs, Cleare v. Cleare, L. E. 1 P. & D. 655. (x) Hillam u. Walker, 1 Hagg. 75. [The common rule in Massachusetts, in probate causes, is not to allow costs to either party. Gray J. in "Waters v. Stick- ney, 12 Allen, 17 ; Woodbury v. Obear, 7 Gray, 472; Osgood u. Breed, 12 Mass. 536 ; ante, 340, note (p).] [376] 442 OF PROBATE. [PT. I. BK. IV. those interested in the residue, the costs may be properly paid out of the estate ; ■ secondly, if there be a sufficient and probable ground, looking to the knowledge and means of knowledge of the oppos- ing party, to question either the execution of the will or the capac- ity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent, (y) A legatee, performing the duty of an executor in proving the will, is entitled to his costs out of the estate, (z) But the rule as to a legatee having his costs out of the estate on establishing a codicil, is not so general as in the case of a * will, (a) And if they are occasioned by his own delay in producing the paper, he must Security P^Y ^i^ OWn COStS. (5) for costs Where a party propounding a will becomes a bank- required . . . from bank- rupt, the court wiU direct him to find security for costs, (c) It is a necessary consequence of some of those rules of the court Probate of of probate, which there has already been occasion to no- be in part^ ^ice, that a will may be in part admited to probate, and and'^nVrt ^^ P^^*" ""^^ ^® refused, (ci) Thus, if the court shall be refused: satisfied that a particular clause has been inserted in a (y) Mitchell v. Gard, 3 Sw. & Tr. 275 ; [ante, 340, note (jp).] See accord. Wil- liams D. Henery, 3 Sw. & Tr. 471 ; Broad- bent V. Hughes, 29 L. J., P. M. & A. 134. See, further, Nash ». Yelloly, 3 Sw. & Tr. 59, where a plaintiff', who was the executor, was condemned in costs, the will having been refused probate on the ground of undue influence. [As to allowing the ex- ecutor his expenses of litigation, boiia fide Incurred in attempting to support the will, whether probate is granted or not, see Bradford v. Boudinot, 3 Wash. C. C. 122 ; Ammon's Appeal, 31 Penn. St. 311 ; Perrine v. Applegate, 14 N. J. (1 Mc- Carter) 531 ; Day v. Day, 3 N. J. (Law) 549; Sterlin v. Gros, 5 La. Ann. 107; Badillo u. Tio, 6 La. Ann. 127; Close v. Close, 13 La. Ann. 590 ; post, 1860, note (i), 2036-2039, and notes; Warren v. High, 1 Murph. (N. Car.) 436.] See, also, ante, 339, 340, as to the right of the next of kin, &c. to compel proof per testes with- out being liable to costs. [377] (a) Williams ». Goude, 1 Hagg. 610; 3 Hagg. 282. See, also, Bewsher v. Wil- liams, 3 Sw. & Tr. 62 ; [Ralston v. Telfair, 2 Dev. & Bat. Eq. 414.] So a next of kin, who had successfully opposed a will pro- pounded by the widow of the deceased as sole executrix named therein, the widow not being condemned in costs was held to be entitled to costs out of the estate. Critchell v. Critchell, 3 Sw. & Tr. 41. (a) 3 Hagg. 283. (h) Headington v. HoUoway, 3 Hagg. 280. (c) Goldie v. Murraj', 2 Curt. 797. (cl) [See ante, 359, note (A) ; Parker C. J. in Laughton v. Atkins, 1 Pick. 548. If a will may take effect in any part, it may properly be admitted to probate, although some bequests be void for uncertainty. George v. George, 47 N. H. 27; ante, 45, note (I). So, In case of a lost will, although some parts of it cannot be proved. Steele v. Price, 5 B. Men. 58.] CH. II. § VII.] PEACTICE OF THE COURT. 443 will, by fraud, without the knowledge of the testator in his life- time, (c?) or by forgery after his death, (e) or, it should seem, if he has been induced by fraud to make it a part of his will, (/) probate will be granted of the instrument with the reservation of that clause, (/i) Again, where a clause is introduced in a testa- mentary paper, per incuriam, and the deceased executes the paper, not having giving any instructions for such clause, and it not hav- ing been read over to him, probate will be granted of the remain- der of the paper, omitting such clause. (^) So, since part of a will may be established, and part held not entitled to probate,|.if actual incapacity be shown at the time of the execution of the latter part, the will shall, in such case, be engrossed without it, and so annexed to the probate. (A) But the court can- tut the not, even by consent, order a passage of the will to be norex-""' expunged, which the testator, being of sound mind, in- W^S^- tended to form part of it. (i) * But though the court cannot ex- punge any words from the original will, it has, it seems, allowed offensive passages, such as scurrilous imputations on the character of another man, to be excluded from the probate and copy kept in the registry. (¥) In a case where the executor and universal legatee had been, by a mistake of the solicitor who drew the will, de- -^^^^^^^ scribed therein by a wrong name (viz, " my nephew granted in Barton Nicholas Shuttleworth " instead of " Barton Nich- name to an (d) Barton v. Eobins, 3 Phillim. 455, (i) Curtis v. Curtis, 3 Add. 33. The note (i). words sought to be expunged in that case (e) Plume k. Beale, I P. Wms. 388. were in the will of a husband, reflecting (/) Allen 0. McPherson, 1 H. L. Cas. severely on the conduct of his wife. So 191 ; [Hegarty's Appeal, 75 Penn. St. 514 ; where a legatee, at the request of the tes- Meluish v. Milton, L. R. 3 Ch. D. 27.] tator, signed her name to the will, and the if^) [So where part only of a will has testator subsequently duly executed the been obtained by undue influence or fraud, will in the presence of two witnesses, who In re Welsh, 1 Redf. Sur. 238 ; Berger attested it, a motion to strike out the name u. Hill, 1 Bradf. Sur. 360. But a pro- of the legatee was rejected. In the Goods vision in a will which is illegal and void of Mitchell, 2 Curt. 916 ; In the Goods of will not prevent its probate. Hegarty's Forest, 2 Sw. & Tr. 334 ; In the Goods of Appeal, 75 Penn. St. 503, 514-516, and Raine, 29 Jurist, 587 ; 34 L. J. N. S., P. cases cited; Baxter's Appeal, 1 Brewster, M. & A. 125 ; In the Goods of Smith, 3 46 ; Coates v. Hughes, 3 Binney, 498.] Sw. & Tr. 589 ; In the Goods of Sharman (g) In the Goods of Duane, 2 Sw. & L. R. 1 P. & D. 661. Tr. 590. (k) In the Goods of Wartnaby, 4 Notes (h) Billinghurst v. Vickers, 1 Phillim. of Cas. 476 ; S. C. 1 Robert. 423 ; Marsh 187; Wood u. Wood, lb. 357 ; ante, 42; v. Marsh, 1 Sw. & Tr. 528; In the Goods [In re Welsh, 1 Redf. Sur. 238.] of Honywood, L. R. 2 P. & D. 251. [378] 444 OF PROBATE. [PT. I. BK. IV. executor olas Bayley"^, probate was granted to him in his right named in name, the testator's next of kin consenting. (V) But the court cannot, even by consent, alter the will by substi- but the will . pit i • cannot be tuting one name for another, however cogent the evi- dence of mistake may be. (m) Nor has the court, under any circumstances, power to make any nor can- alteration in papers of which probate has been granted. celled in . in p-r-iiTi part. ihereiore, where the vice chancellor of England has or- dered that two promissory notes, which, with certain testamen- tary indorsements on them, had been admitted to probate, should be paid in a certain way, and that having been done, he further ordered that the notes should be cancelled, Sir H. Jenner Fust refused to direct that this order should be carried into effect, (w) It is laid down by Swinburne, that if a testament be made in Probate of writing and afterwards lost by some casualty, (w^) if there a ostwi : i^g ^^^ unexceptionable witnesses who did see and read the testament written, and do remember the contents thereof, these two witnesses, so deposing to the tenor of the will, * are sufficient for the proof thereof in form of law. (o) In such cases the court will grant probate of the will " as contained in the depositions of the witnesses." (p) And, at this day, it is quite clear that the contents or substance of a testamentary instrument may be thus established, though the instrument itself cannot be produced, upon satisfactory proof being given that the instrument was duly made by the testator, (pi) and was not revoked by him ; (p^) for ex- (l) In the Goods of Shattleworth, 1 Curt. 911. (m) In the Goods of Collins, 7 Notes of Cas. 278. (n) In the Goods oiF Hughes, 2 Robert. 341. ("1) [So, it-seems, if a will cannot be produced because it is detained by a for- eign court. Foster J. in Loring v. Oakey, 98 Mass. 269, 270.] (o) Swinb. pt. 6, s. 14, pi. 4. In a mod- ern case, probate of a lost will was applied for, merely upon the afBdavit of the par- ties interested; but the court preferred granting administration with the will, as contained in the affidavits annexed, limited till the original was produced, the admin- istrator giving security. Vallance v. Val- [379] lance, 1 Hagg. 693. Where the will has been lost and the contents are unknown, such administration will be granted to the widow on giving justifying securities. In the Goods of Campbell, 2 Hagg. 555. ip) Trevelyan u. Trevelyan, 1 Phillim. 154. See, further, as to a lost will. Burls u. Burls, L. R. 1 P. & D. 472. (pi) [Evidence must be given sufficient to show a compliance with the statute of wills in all its provisions. Grant v. Grant, 1 Sandf. Ch. 235, 243 ; Voorhees v. Voor- hees, 39 N. Y. 463.] (p2) [Declarations of the testator, to the effect that he was leaving a valid will, have been held admissible for the purpose of showing that a lost will had not been revoked. In re Johnson's Will, 40 Conn. CH. 11. § VU.] PRACTICK OF THE COURT. 445 ample, either by showing that the instrument existed after the testator's death, (^q) or that it was destroyed in his lifetime, with- out his privity or consent, (r) Thus, where the testa- ^ , '' ^ -^ or of a will tor had delivered his will to A. to keep for him, and four cancelled years afterwards died, when the will was found gnawn stroyed to pieces by rats, and in part illegible ; on proof of the ov'becom'e substance of the will, by the joining of the pieces, and '"<^8'We: the memory of witnesses, probate was granted, (s) So if a will, duly * executed, is destroyed in the lifetime of the testator, with- out his knowledge, it may be pronounced for, upon satisfactory proof being given of its having been so destroyed, and also of its contents, (f) And where, after the death of the testator, his will 587. So his declarations that he has no will, or that he had destroyed his will, are evidence to show that the will has been revoked. Durant v. Ashmore, 2 Eich. 184. See Miller v. Phillips, 9 R. I. 141, 144 ; Grant u. Grant, I Sandf. Ch. 235, 243 ; Timon !'. Clafiy, 45 Barb. 438. But a lost will not traced out of testator's pos- session is presumed to have been revoked by him, by destruction. Idloy v. Bowen, 11 Wend. 227; S. C. 1 Edw. US; Bulk- ley V. Kedmond, 2 Bradf. 281 ; Holland v. Ferris, 2 Bradf. 334; Clark's Estate, 1 Tuck. 445; ante, 162, and cases in note (a).] (q) Martin v. Laking, 1 Hagg. 244. (r) Davis v. Davis, 2 Add. 224; ante, 158; In the Goods of Thornton, 2 Curt. 913. As to the necessity of citing the next of kin, see In the Goods of Denston, 3 Curt. 741. [Where a will had been lost or destroyed under circumstances showing that it has not been lost or destroyed with the knowledge of the testator, the fact of its legal existence at the death of the tes- tator may be proved by circumstantial tes- timony. Schultz V. Schultz, 35 N. Y. 653. Thus, where it was proved that the will, at the time of its execution, was placed by the testator in the hands of another person as custodian, who testified that he took charge of it, and locked it up in a trunk, and supposed it was there at the time of the testator's death, but upon search after his death it could not be found, the evi- dence of its legal existence, at the time of the testator's death, was held sufficient under the statute of New York. Schultz V. Schultz, supra.^ (s) Toller, 70. See, also. In the Goods of Harvey, 1 Hagg. 575, where an en- grossed copy of a will having been read over to, and approved by, the deceased, who intended to execute it shortly after- wards, but was prevented by death, pro- bate in common form was granted (with consent of the only person interested under an intestacy) of one of the originally en- grossed sheets, and of two fairly copied sheets, substituted for, and (except as to some clerical errors not affecting the dis position) corresponding with the sheets approved by the deceased (one of which was not to be found). As a general rule, the court requires the draft or copy of a lost or destroyed will to be propounded be- fore admitting it to probate. But see In the Goods of Barber, L. R. 1 P. & D. 267. [See, also. Burls v. Burls, L. K. 1 P. & D. 472 ; Goods of Kipley, 1 Sw. & Tr. 68 ; Goods of Gardner, 1 Sw. & Tr. 109. But a copy is not indispensable. See Jackson V. Russell, 4 Wend. 543 ; Smith v. Steele, 1 Harr. & M'H. 419; Happy's Will, 4 Bibb, 553.] (t) Trevelyan v. Trevelyan, 1 Phillim. 149 ; [In re Johnson's Will, 40 Conn. 587 ; Davis V. Sigourney, 8 Met. 487 ; Dan v. Brown, 4 Cowen, 483 ; Steele v. Price, 5 B. Mon. 58 ; Graham . Monroe, 28 Md. 98 ; Rhodes o. Vinson, 9 Gill, 171 ; Davis v. Sigourney, 8 Met. 487 ; In re Johnson's Will, 40 Conn. 587 ; Dur- fee V. Durfee, 8 Met. 490, note. And very diligent search must have been made for the missing will. Jackson v. Hasbrouck, 12 John. 192; Fetherly v. Waggoner, 11 Wend. 599 ; Eure v. Pittman, 3 Hawks, 364 ; Dan v. Brown, 4 Cowen, 483.] (y) 8 El. &B1. 876. (yi) [Sugden v. Lord St. Leonards, L. R. 1 P. Div. 154 ; Legare v. Ashe, 1 Bay, 464 ; Havard u. Davis, 2 Binn. 406 ; Day u. Day, 2 Green Ch. 330 ; Jones v. Mur- phy, 8 Watts & S. 275 ; Nelson v. M'Gif- fert, 3 Barb. Ch. 158.] iy^) [Sugden v. Lord St. Leonards, supra. The proof of a lost or destroyed CH. n. § VII.] PRACTICE OF THE COURT. 447 Sir C. Cresswell. (z) But in Wharram v. Wharram, (a) Sir J. P. Wilde appeared to doubt the soundness of the doctrine in Brown V. Brown, by reason of the provision in the 10th section of the wills act, that "no will shall be valid " "unless it be in writing, &c." * And the learned judge seemed to think that the current of authorities had somewhat hastily flowed on past the period of the wills act, without any notice of that enactment, (a^) But with the greatest deference it may be observed that it is some- what difficult to see how that enactment affects the question ; and the learned judge himself on a subsequent occasion, where a case of suppression, or if not of destruction, of the will was made out, granted administration with ■the will annexed to the residuary legatee. (V) So where a codicil had been burnt by the testator's order, but not in his presence, as required by the statute, Sir J. Dodson decreed probate of a draft copy, (c) And it should seem, that unless in cases of this kind secondary evidence of the will were allowed to be sufficient, much injustice and impunity for fraud would be permitted. If a will be wholly or par- or can- tially cancelled, or destroyed, by the testator whilst of un- testator will proceeds upon the theory that it is not in existence and cannot be produced before the court ; and therefore the case is one of secondary evidence exclusively. Everitt V. Everitt, 41 Barb. 385. In the late case of Sugden v. Lord St. Leonards, supra, it was held, upon very full discussion, that the contents of a lost will, like those of any other instrument, may be proved by secondary evidence; that they may be proved by the evidence of a single witness, though interested, whose veracity and com- petency are unimpeached ; and that decla- rations, written or oral, made by a testa- tor, both before and after the execution of his will, are in the event of its loss admissible as secondary evidence of its contents.] (z) In the Goods of Gardner, 1 Sw. & Tr, 109, where the will had been left, dur- ing the mutiny, in India, and probate was granted of the will as contained in the af- fidavits. See, also, In the Goods of Brown, 1 Sw. & Tr. 32, where the facts were the same as those in Brown v. Brown ; Wood V. Wood, L. R. 1 P. & D. 309. (a) 3 Sw. &Tr. 301. \a>) [See Hale v. Monroe, 28 Md. 98. Where only a part of the contents of a lost will can be proved, that part has been held admissible for probate. Steele u. Price, 5 B. Mon. 58 ; Sugden v. Lord St. Leonards, L. R. 1 P. Div. 154. But see ante, 380, note (t). So where a will has been mutilated or partially destroyed by the testator while incompetent to revoke, probate may be granted so far as the con- tents of the paper can be ascertained. Ap- person v. Cottrell, 3 Porter, 51 ; Rhodes V. Vinson, 9 Gill, 169. Where a prior will has been revoked by a subsequent one, and both are improperly destroyed, the first instrument cannot be set up as the testator's will by proof of its contents, al- though the contents of the second cannot be ascertained. Day v. Day, 2 Green Ch. (N. J.) 549.] (6) Podmore v. Whatton, 3 Sw. & Tr. 449. (c) In the Goods of Dadds, Dea. & Sw. 29. [381] 448 OF PROBATE. [ft. I. BK. IV. while non sound mind, probate will be granted of it as it existed in compos. ^ . -11^ 7x its integral state, that being ascertainable. (_«!} Probate granted to one of several executors, inures to the benefit Double of all. (e) Where there are several executors, upon the where'^ grant of probate to one of them, it is usual to reserve severd'^L- power of making a like grant to the others. But this ecutors. appears to be unnecessary, both because the probate already granted inures to their benefit and because they have a right to the grant, whether the power be reserved or not. (/) There is, however, what in the spiritual court * was 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 as to be recited. And so on, if there are more that come in afterwards. (^) If there be several executors appointed with distinct powers, Probate as One for one part of the estate, and another for are several another, yet there being but one will to be proved, one w'ith'di's-^ proving of it suffices. (A) So if B. is made executor for m^'o^^for *®° years, and afterwards C. is to be executor, and B. distinct proves the will, and the ten years expire, C. may ad- portions of '^ . . ■' • . time. minister without any further probate, (i) The court may grant a limited probate where the testator has (rf) Scruby v. Fordham, 1 Add. 74 ; [ante, 147, note [r], 159; Rhodes ^. Vin- son, 9 Gill, 169 ; Apperson v. Cottrell, 3 Porter, 51 ; Voorhees v. Voorhees, 39 N. Y. 463 ; Timon v. Claffy, 45 Barb. 438.] (e) Webster !•. Spencer, 3 B. & Aid. -363, by Bayley J. ; Brookes v. Stroud, 1 Salk. 3; Walters v. Pfeil, 1 Mood. & Malk. 362; Watkins v. Brent, 7 Sim. 512; 1 My. & Cr. 104; Scott u. Briant, 6 Nev. & M. 381. A person to whom, with others, a term of years had, in the year 1810, been bequeathed in trust, and who was appointed, with the other trus- tees, an executor of the will, was pre- sumed, in 1844, by Sugden, lord chan- cellor of Ireland, to have accepted the trust, though he had never acted in it ; [382] the will having been proved by the other executors, saving his i-ight and he not having ever disclaimed. In re Needham, 1 Jones & Lat. 34. (/) Ante, 284. (g) 4 Burn E. L. 310, Phillimore's ed.; In the Goods of Bell, L. R. 2 P. & D. 247. (A) Wentw. Off. Ex. 31, 14th ed. ; Bae. Abr. Exors. C. 4. [A testator may ap- point different executors in different coun- tries in which his effects may lie, or dif- ferent executors as to different parts of his estate in the same country. Hunter V. Bryson, 5 Gill & J. 483.] (t) Anoa. 1 Freem. 313 ; Anon. 1 Chan. Cas. 265. See Watkins v. Brent, 1 My. & Cr. 10. CH. II. § VII.J PRACTICE OF THE COURT. 449 limited the executor. (A;) And it is laid down (J) that if a man makes and appoints an executor for one particular thing t . . , only, as touching such a statute or bond and no more, probate. 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 v?ill proved ; but in case he makes another will for the residue of his estate, there must be two wills proved. However, where there is an executor appointed without any lim- itation, the court can only pronounce for the will, or for an abso- lute intestacy. It cannot pronounce the deceased to be dead intes- tate as to the residue, though the executor may eventually be considered only as a trustee for the next of kin. (m) Where an executrix was appointed in a codicil, which * gave her a legacy, and nominated her, together with an exec- , ° ■' ' _ ' t> _ An execu- utor named in a previous will, executors of the will and tor named T -1 1 1 • • I- 1 Ml 1 • • m a codicil codicil, declaring it to be a part ot the will, and giving may pro- them the residue in moieties, it was held that she had tiie^wiiland a right to propound both the will and codicil, if she '=°'i"=''- thought proper, though the other executor prayed probate of the will alone, and opposed the codicil ; for if the codicil was good, it was 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, (n) Probate of a will cannot be granted to the executor ^™|'if '^ "[ while a contest subsists about the validity of a codicil ; not be had . . "^ durmgam for that being undetermined, it does not appear what pendens is the will, and the executor cannot take the common icii: oath, (o) In a modern case, (/>) however, where a question arose as to the validity of a codicil revoking the appointment of a co- unless by executor, and the estate required an immediate represen- co°se°t- tation, probate of the undisputed instruments was granted to the other executors, with consent of the co-executor, reserving all ques- tions. {k) 1 Cas. temp. Lee, 280; Davies v. (n) Miller v. Sheppard, 2 Cas. temp. Queen's Proctor, 2 Eobert. 413 ; In the Lee, 506. Goods of Beer, lb. 349. (o) Neagle v. Castlehaven, 2 Cas. temp. {I) Wentw. OS. Ex. 30, 14th ed. Lee, 246. (m) Sutton V. Smith, 1 Cas. temp. Lee, (p) Fowlis v. Davidson, Prerog. T. T. 275. See Spratt v. Harris, 4 Hagg. 408, 409. 1845 ; 4 Notes of Cas. 149. VOL. 29 [.383] 450 OF PROBATE. [PT. I. BK. IV. It has already appeared that where there is a sole executor, or Executor sole surviving executor, the office is transmissible, and torf'^ "^ his executor becomes the representative of the original testator ; (g') and in such a case no new probate of the original will is requisite, (r) Where a married woman makes a will by virtue of a power, or Probate of of property enjoyed by her separately, such will, as there /i)»r'" "^ ^^^ been already occasion to show, may be admitted to covert; probate, without the consent of her husband, (s) 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, (t') However, the probate of the will of a feme covert should not be general, but limited to the property over which she has a dispos- ing power, (m) And her husband will be entitled to have a grant of administration cceterorum. (x) In a modern case, («/) the deceased, previously to her marriage, form of ijad certain property conveyed to trustees, with a power such pro- ... . bate. to her to receive the dividends and interest thereof dur- ing 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 pro- bate. The ground on which it was contended that that did not pass, was, not that the deceased did not possess the power of dis- posing 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 (q) Ante, 254. Goods of Marten, 3 Sw. & Tr. 1 ; In the (r) Wankford v. Wankford, 1 Salk. 309. Goods of De Pradel, L. E. 1 P. & D. 454. (s) See ante, 56. [The probate should be limited, special, or (i) Temple v. Walker, 3 Phillim. 394 ; qualified, where that is necessary to give In the Goods of Monday, 1 Curt. 590 ; the will its proper effect. Heath v. With- ante, 57, 58. And by rule 15 (1862), P. ington, 6 Gush. 497, 500, 501 ; Holman v. K. (Non-contentious Business) it must be Perry, 4 Met. 492, 498 ; Noble v. Phelps, specified in the grant of the probate, &c. L. R. 2 P. & D. 276 ; Osgood v. Breed 12 See ante, 59. Mass. 531.] (m) Scammel v. Wilkinson, 2 East, 552 ; {x) Boxley v. Stubbington, 2 Gas. temp. Tappenden v. Walsh, 1 Phillim. 352 ; Lee, 537 ; Salmon v. Hays, 4 Hagg. 388. Tugman v. Hopkins, 4 M. & Gr. 389 ; See 4 M. & Gr. 398, per Tindal C. J. ; Tucker v. Inman, 4 M. & Gr. 1049. See In Brenchley v. Lynn, 2 Robert. 441, 471. the Goods of Boswell, 3 Curt. 744 ; In the (y) Ledgard v. Garland, 1 Curt. 286 [384] CH. II. § VII.] PKACTICE OF THE COURT. 451 determine, and that he would grant probate to the executors lim- ited 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 conve- nient mode, in order to give parties an opportunity of making their claims elsewhere. (^^) * So, in general cases, if the will be limited to any specific effects of the testator, the probate shall also be so limited, ^. Wing, 4De correct than Lord Brougham's; because G., M. & G. 633; post, pt. ui. bk. iii. it would follow from Lord Brougham's ch. ii. § v. [p. 1204 et seq.] where this sub- that even where an executor had assented ject is more fully considered. [414] 480 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. In what cases the will of the wife may control the husband's right to ad- minister : cases, in order to entitle the husband to the wife's property it must be proved that he survived her ; and consequently the administra- tion thereof must be granted to her next of kin, if his representa- tive cannot give any such proof, (a) It has already appeared that in several cases a feme covert may make a will ; and it remains to consider to what extent her will operates as a bar to the husband's right to be her administrator. If the wife by her husband's agree- ment be empowered to make a general will, disposing of her whole estate, the husband's right will be barred by her exercise of such power ; and though, strictly speaking, the in- strument executed under such circumstances by the wife is no will, but rather an appointment which is to operate in equity, the com- mon law courts will not interfere in favor of the husband. (J) But if she be empowered by her husband to dispose by will of fart of her estate only, as where by articles before marriage it was agreed that the vnfe should have power to make a will, and dis- pose of her * leasehold estate j or where her will affects the property to which she is entitled for her separate use, or that which she has in auter droit, as executrix of a third party ; in all such cases pro- bate must be limited to the particular property which passes by such will, and administration of the other part of her property (which is called an administration cceterorurn) must be granted to the husband, (c) And where 2, feme covert has a power to dispose of her estate by will, which she executes, but without appointing an executor, it has been held that administration should be granted to the husband cum testamento annexe, (of) But the practice in the registry of the prerogative court has been, notwithstanding, to make such grants, not to the husband but to the persons having the interest under the will, the rule being that the grant should follow the interest, (e) And it has been whether, if she makes a will and appoints no executor, adminis- tration cum testamento annexo shall be granted to her hus- band, quare i (a) Satterthwaite v. Powell, 1 Curt. 705 ; In the Goods of Wheeler, 31 L. J., P. M. & A. 40; post, pt. 1. bk. v. ch. iii. § I. [p. 464.] (6) Eex V. Bettesworth, 2 Stra. lUl. (c) Eex V. Bettesworth, 2 Stra. 891, 1118; Stevens v. Bagwell, 15 Ves. 139. (d) Eoss V. Ewer, 3 Atk. 160; Salmon V. Hays, 4 Hagg. 386 ; Dempsey v. King, [415] 2 .Eobert. 397. [And not «, limited ad- ministration to the legatees under the ap- pointment, the effect of which would be, that if the deceased left other property, a further administration, i. e. a general ad- ministration to the husband, would be req- uisite. 1 Jarman Wills (3d Eng. ed. ), 25.] (e) See accord. In the Goods of Bailey, 2 Sw. & Tr. 135. CH. II. § I.] TO WHOM THEY SHOULD BE GRANTED. 481 lately held by Dr. Lushington, that it is not true, as a general proposition, that the husband has a right to the administration, but that such a grant is, according to circumstances, discretion- ^'^y- (/) If a/eme covert has a power to dispose of certain per- sonal property by her will, but no power to make an executor, and she makes a will, disposing of such property, and appointing an executor, the court will grant to the executor an administration with the will annexed, limited to that property, and decree a gen- eral administration cceterorum lonorum to her husband. (^) If the wife be executrix to another, and dies intestate, then, as to the goods which she had in that capacity, administra- adminia- tion must not be granted, generally speaking, to her 'JferTwife * husband. (A) In fact, in this case, the administration js e'^eou- ^ tnx o£ an- is not of the goods of the wife but de bonis non of her other, testator cum testamento annexo. Consequently, the adiiiinistra- tion must be granted according to the rules established with re- spect to that species of grant, which will be explained in the sub- sequent chapter, (i) The subject now proceeds to the right of the widow o£ the and next of kin under the statutes. And first, as to the ^fdow!""* right of the widow, the stat. 21 Hen. 8, c. 5, s. 3, di- ^he ordi- rects that the ordinary shall grant administration " to the widow or the next of kin or to both " at his discre- tion. (_/) Therefore, where it was moved for a man- nary may grant ad- ministra- tion to her or next of (/) Brenchley v. Lynn, 2 Robert. 441. See, also. In the Goods of Dawson, 2 Robert. 135 ; S. C. 7 Notes of Cas. 317. When it is refused to the husband, he may, if necessary, take a cceterorum grant. 2 Robert. 441. (g) Boxley v. Stubbington, 2 Cas. temp. Lee, 537. (A) Smith V. Jones, Bulstr. 45 ; Jones V. Roe, W. Jones, 176; Anon. 3 Salk. 21. (t) Sections 1, 2. (j) The court is precluded by this stat- ute from making a joint grant to a widow and one of the persons entitled in distri- bution (but not next of kin), even with the consent of the next of kin, and of all the other persons entitled in distribution, and the 73d section of the court of pro- bate act, 1857 (see post, 446), does not VOL. I. 31 enlarge the power of the court in such a case. In the Goods of Browning, 2 Sw. & Tr. 634. But see In the Goods of Grundy, L. R. 1 P. & D. 459. [The statute of 21 Hen. 8, c. 5, which, in rela- tion to persons entitled to administration, is the same as the Pennsylvania act of 1832, places the widow and next of kin on the same platform. The widow is not placed in a class by herself, and as such entitled to the administration of the es- tate. Under the construction given to the above Pennsylvania act, the ordinary or register grants administration of the effects of the husband to the widow, or next of kin, or he may grant it to either or both, at his discretion. If the widow renounces administration, it shall ibe granted to the children, or other next of [416] 482 OF GENEKAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. kin, or to them jointly : damns to the official of the Bishop of Gloucester to com- mit administration to the widow of an intestate, the kin, in preference to strangers or even to creditors. The discretion given to the register is limited to a selection from those asking, if competent, in each class in their order. When the widow renounces her right to administer, it is the duty of the register to select from the children, or next of kin, a person or persons compe- tent to perform the duties of administra- tion, preferring males to females. It has never been understood that the widow or next of kin, or both combined, having the greatest stake in the estate, can pass by any one of the children, or next of kin, competent and willing to take, and vest the appointment in a stranger. Rog- ers J. in McClellan's Appeal, 16 Penn. St. 110, 115; Williams's Appeal, 7 Penn. St. 288. And so in Massachusetts, adminis- tration of the estate of an intestate may be granted to his widow, or next of kin, or both, as the probate court shall deem fit; and if they do not either take or renounce the administration, they shall if resident within the county, be cited by the court for that purpose. Genl. Sts. c. 94, s. 1, clause "First ; " Cobb v. Newcomb, 19 Pick. 336. In order to be effectual such renuncia- tion must be recorded in the probate court. Arnold v. Sabin, 1 Gush. 525, 529. If there be no fit person among the next of kin to take administration, either alone, or jointly with the widow, she is exclu- sively entitled to it. M'Gooch v. M'Gooch, 4 Mass. 348. But a renunciation of her claim by the widow does not give her a right to nominate another person, to the exclusion of the next of kin. Cobb v. Newcomb, 19 Pick. 336, 337; post, 417, note (o). In New York the widow has the first claim to the adininistration in a class by herself. The right to administra- tion in this state belongs to the relatives of the deceased, who would be entitled to succeed to his personal estate, in the fol- lowing order. First, his widow ; second, his children ; third, his father ; fourth, his mother; fifth, his brothers; sixth, his sis- ters ; seventh, his grandchildren ; eighth, any of the next of kin who would be en- titled to share in the distribution of the estate; next, to the creditors, the one first applying, if otherwise competent, to have the preference. 2 E. S. (New York) 74, § 27 ; as amended. Laws, 1863, c. 362, § 3 ; Laws, 1867, c. 782, § 6. A widow having consented to join a stranger with her in the administration, cannot revoke the consent. Williams's case, 1 Tuck. (N. Y.), Sur. 8. In a case where the widow renounced her right to administer her husband's estate, and recommended an- other person, all the children being mi- nors, it was held that the surrogate had jurisdiction to appoint such person with- out citing the next of kin. Sheldon v. Wright, 1 Selden, 497. In Kentucky the court may, at the request of the widow, associate with her a stranger in blood to the intestate, in the administration, even against the objection of ihe blood rela- tions. Shropshire v. Withers, 5 J. J. Marsh. 210. In Mississippi, only husband or wife and distributees have a legal right to administer; the appointment of others is within the discretion of the court. Byrd V. Gibson, 1 How^. (Miss.) 568. A son in that state will be removed from the ad- ministration and the widow appointed in his place if she makes application. Muir- head i/. Muirhead, 6 Sm. & M. 451. A mere parol renunciation will not be a waiver of her right. Muirhead v. Muir- head, supra. Under the Alabama Code, after fifteen days from the time when the death is known, there may be appointed the husband or widow, or if he or she relinquish, the next of kin, or if they also relinquish, the largest creditor, and if he also relinquishes, any other person ; and either of those entitled, who do not claim the right within forty days from the time the death is known, is deemed to have relinquished. Curtis v. Williams, 33 Ala. 570; Curtis v. Burt, 34 Ala. 729; For- rester V. Forrester, 37 Ala. 398.1 CH. II. § I.J TO WHOM THEY SHOULD BE GRANTED. 483 court refused the motion, saying, that it would be to deprive the ordinary of his election in granting it to her, or the next of kin. (7c) The statute further directs the ordinary, in his discretion, to grant administration to both the widow and the next of adminis- kin ; and it has been held that the grant may be to mlyTe them both jointly, or both separately, by committing fhem both several administrations of several parts of the goods of i°'""y •"■ J^ ° _ _ both sepa- the intestate. (Z) Thus, in a case where a man died in- rateiy: testate, leaving a wife and brother, the ordinary granted the ad- ministration of some particular debts to the brother, and of the residue to the wife ; and a mandamus was moved for, to * grant administration to the wife. But by the court : The ordinary may grant administration to the brother as to part, and to the wife for the rest ; in which case neither can complain, since the ordinary need not have granted any part of the administration to the party complaining. But if the intestate leave a bond of lOOZ., the or- dinary cannot grant administration of SOL to one person and 50L to another, because this is an entire thing, (m) But the court prefers a sole to a joint administration, (n) and never forces a joint one. And in modern prac- otthe tice the election of the judge is in favor of the widow, favor oV° under ordinary circumstances, (o) But the court has ''"=^"'<'^^= {k) Anon. 1 Stra. 525. (I) 1 Roll. Abr. tit. Exor. D. pi. 1, p. 908 ; 4 Burn E. L. 361, Phillimore's ed. (m) Fawtry v. Fawtry, 1 Salk. 36 ; S. C. but not S. P. 1 Show. 351. (n) Where a joint grant is made to the widow and one of the next of kin, all the other next of kin must consent that the grant shall be so made. In the Goods of Newbold, L. R. 1 P. & D. 285. (o) Stretch v. Pynn, 1 Cas. temp. Lee, 30 ; Goddard v. Goddard, 3 Phillim. 638. See, also, Atkinson v. Barnard, 2 Phillim. 317. But administration of the effects of a domiciled Scotchman was lately granted to the brother (the next of kin of the de- ceased) without citing the widow, a similar grant having already been made in Scot- land. In the Goods of Rogerson, 2 Cmt. 656. [Where a widow releases or re- nounces her right to administer in favor of a particular person designated by her, she is bound by the renunciation only in case such person is appointed. McClellan's Appeal, 16 Penn. St. 110, 116. A renun- ciation by the widow gives her no right to nominate another person to the exclusion of the next of kin. Cobb v. Newcomb, 19 Pick. 337 ; M'Beth v. Hunt, 2 Strobh. 335. The right to administer is personal, and cannot be exercised by nominating a third person; Redfield L. & Pr. Sur. Cts. 159; Matter of Root, 5 N. Y. Leg. Obs. 449 ; Matter of Ward, 6 N, Y. Leg. Obs. Ill ; or by delega.tion ; Georgetown College v. Brown, 34 Md. 450. See, as to the mode of renouncing administration, Arnold v. Sabin, 1 Cush. 525, 529 ; Genl. Sts. Mass. t. 94, s. 1, clause "First." As to the va- lidity of an agreement to transfer the right to administer on an estate for a consider- ation, see Brown «. Stewart, 4 Md. Ch. 368 ; Bassett ti. Miller, 8 Md. 548 ; Bowers V. Bowers, 26 Penn. St. 74.] [417] 484 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. always held that administration may be granted to the next of kin, and the -widow be set aside upon good cause ; (^) for instance, if she has barred herself of all interest in her husband's personal es- tate by her marriage settlement, (^q) or where she is a lunatic, (r) or where she has eloped from her husband, or cohabited in his life- time with another man, (s) or has lived separate from her hus- band, (t) But the circumstance * of the wife having married again is no valid objection, (u) However, if the deceased left chil- dren, one of whom, supported by the rest, applies for administra- tion, the second marriage might induce the court to prefer the child, (a;) Where the intestate had married a first wife in Den- mark, both parties being domiciled there, from whom he a divorce according to foreign law ai- was divorced by a contract of separation and other pro- question of ceedings amounting to a divorce a vinculo matrimonii gran ing according to the Danish law, and then married a second adminis- tration to a second wife: wife di- vorced a mensa et thoro. wife ; such second wife was allowed by the prerogative court to take out administration to the husband. Qy) If a wife has been divorced a mensa et thoro, for adul- tery, on her part, she forfeits, it should seem, her right to the administration. (2) Of the right of the next of kin: Who are the next of Isin en- It now becomes necessary to inquire, who are the " next and most lawful friends," and the " next of kin," entitled to the grant of the administration under the statutes. Lord Coke describes them to be, " the next of blood who (p) See accord. In the Goods of Ander- son, 3 Sw. & Tr. 489 ; [Thornton v. Win- ston, 4 Leigh, 152. In Kentucky, if the widow be a resident of another state, that will exclude her from administering. Rad- ford V. Kadford, 5 Dana, 156. So, if either the widow or any other party is evidently unsuitable to discharge the duties of the trust, they are not entitled thereto. Steams V. Fiske, 18 Pick. 24.] (5) Walker v. Carless, 2 Cas. temp. Lee, 560 ; [Maurer v. Maurer, 5 Md. 324.] (r) In the Goods of Williams, 3 Hagg. 217; In the Goods of Dunn, 5 Notes of Cas. 97. See, however, Alford v. Alford, Dea. & Sw. 322, where Sir J. Dodson held [418] the committee of a lunatic widow entitled preferably, as the widow herself would be, unless good cause is shown by the next of kin. (s) Fleming v. Pelham, 3 Hagg. 217, note (6) ; Conyers v. Kitson, 3 Hagg. 556. {t) Lambell v. Lambell, 3 Hagg. 568. See Chappell v. Chappell, 3 Curt. 429 ; [Odiorne's Appeal, 54 Penn. St. 175. But see Nusz v. Grove, 27 Md. 391.] (u) Webb V. Needham, 1 Add. 494. {x) Webb V. Needham, 1 Add. 496. {;/) Ryan v. Ryan, 2 Phillim. 332. («) Pettifer v. James, Bunbury, 16 ; In the Goods of Davies, 2 Curt. 628. CH. II. § I.J TO WHOM THEY SHOULD BE GRANTED. 485 are not attainted of treason, felony, or have any other titled to ad- lawflU disability." (a) tion under It may here be observed, that it is an established prin- utes. ciple in the ecclesiastical court, that the right to the administra- tion of the effects of an intestate foUovirs the right to the property in them. (6) Whence it seems to follow, that all the cases -which have decided what persons are next of kin so as to be entitled to a share of the intestate's personal estate under the statute of dis- tribution, are authorities upon the question as to what parties are next of kin so as to be entitled to administration under the stat- utes of administration. ' * It has been laid down, that the statute of distribution must be construed according to the common law. (c) Nevertheless the more modern cases seem to have fully established, that its con- struction, as to the proximity of degrees of kindred at least, shall be according to the rules of the civil law. (c?) Consanguinity, or kindred, is defined by the writers on these subiects to be '•'■vinculum personarum ah eodem stipite Definition ■" . ^ , -'of consan- aescendentium," the connection or relation of persons de- guinity. scended from the same stock or common ancestor, (e) This con- sanguinity is either lineal or collateral. Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the Lineal con- other, as between the propositus in the accompanying s*°e"""ty- table of consanguinity, (e^) and his father, grandfather, great- grandfather, and so upwards in the direct ascending line ; or be tween the propositus and his son, grandson, great-grandson, and so (a) Hensloe's case, 9 Co. 39 6. tion cannot be taken by a stranger to the (b) By Sir John NichoU, In the Goods grant of administration, on the ground that of Gill, 1 Hagg. 342. [The right to ad- there are other persons whom the law pre- ministration is prcdicateciupon the ground fers. Burton v. Waples, 4 Harring. 73.] of interest in the estate, either as an heir, (c) Blackborough v. Davis, 1 P. Wma. legatee, next of kin, or creditor. Ellmak- 50; S. C. 12 Mod. 616. er's Estate, 4 Watts, 34, 37 ; Chapman C. (d) Mentney !».- Petty, Prec. Chanc. J. in Hall v. Thayer, 105 Mass. 219, 224; 594; Thomas i). Ketteriche, 1 Ves. sen. Sweezey w. Willis, 1 Bradf. Snr. 495; Red- 333; Lloyd u. Tench, 2 Ves. sen. 214; field L. & Pr. Sur. Cts. 159-161 ; Leverett Wallis v. Hodgson, 2 Atk. 117 ; Lock a. b. Dismukes, 10 Geo. 98; Bieber's Appeal, Lake, 2 Cas. temp. Lee, 420 ; 4 Burn E. 11 Penn. St. 157; ;50s«, 462 ; Thornton v. L. 543, Phillimore's ed. Winston, 4 Leigh, 152. Administration (c) 2 Bl. Com. 203. should not be granted to one whose inter- (e') [This table will be found at the end ests are adverse to those of the estate, of the work.] Estate of Horn, 6 Phil. (Pa.) 87. Objcc- [419] 486 OF GENERAL LETTERS OF ADMIKISTEATION. [PT. I. BK. V. downwards in the descending line. • Every generation, in this lineal direct consanguinity, constitutes a different degree, reckon- ing either upwards or downwards. The father of the propositus is related to him in the first degree, and so likewise is his son ; his grandsire and grandson in the second; his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line; and therefore universally obtains, as well in the civil and canon as in the common law. This lineal consanguinity, it may be observed, falls strictly within the definition of vinculum personarum ah eodem stipite desoenden- tium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor. (/) * Collateral kindred answers to the same description ; collateral Collateral relations agreeing with the lineal in this, that they de- consan- o o ... guinity. seend from the same stock or ancestor ; but differing in this, that they do not descend one from the other. Collateral kinsmen are such, then, as literally spring from one and the same ancestor who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles has two sons, who have each a numerous issue ; both these issue are lineally descended from John Stiles as their common an- cestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestoi", and all have a portion of his blood in their veins, which denominates them consanguineos. ((/) It must be carefully remembered, that the very being of col- lateral consanguinity consists in this descent from one and the same common ancestor. Thus, Titius and his brother are related ; why ? because both are derived from one father. Titius and his first cousin are related ; why ? because both are descended from the same grandfather; and his second cousin's claim to consanguin- ity is this : that they are both derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by Holy Writ that there is one couple of ancestors belonging to us all from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other, (h) (/) 2 Bl. Com. 203. (A) 2 Bl. Com. 205. (g) 2 Bl. Com. 204. [420] CH. II. § I.J TO WHOM THEY SHOULD BE GRANTED. 487 The mode of calculating the degrees in the collateral line for the purpose of ascertaining who are the next of kin, so „ , , as to be entitled to administration, conforms, as it has calculating tle<^r66S 01 been above observed, to that of the civil law, and is as consan- foUows : to count upwards from either of the parties ^leroJ^ '" related to the common stock, and then downwards again 'a'«™""'e- to the ofaher, * reckoning a degree for each person, both ascending and descending ; (i) or, in other words, to take the sum of the degrees in both lines to the common ancestor, (/c) In the annexed table of consanguinity (^i) the degrees are com- puted as far as the sixth. It may be useful to apply some examples from it to the rule of calculation above laid down. The proposi- tus and his cousin-german will be found designated in the table as related in the fourth degree ; because, following the rule of computation, from the propositus ascending to his father, is one degree ; from him to the common ancestor, the grandfather, two ; then, descending from the grandfather to the uncle, three ; and from the uncle to the cousin-german, four. Again, the second cousin of the propositus will be found described in the table as related in the sixth degree ; because, from the propositus, ascend- ing to his father is one degree ; from his father to his grandfather, (t) 2 Bl. Com. 207 ; Mentney v. Petty, Prec. Chanc. 593 ; Toller, 88. (k) lb. and Mr. Christian's note to 2 Black. 207. According to the canon law, the mode of computation is to begin at the common ancestor, and reckon down- wards, and in whatsoever degree the two persons, or the more remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. It is obvious that the de- grees by this calculation are fewer than by the mode of the civilians. And Sir J. Jekyl, in Prec. Chanc. 593, and Lord Hardwicke, in 1 Ves. sen. 335, attribute the establishment of the mode of canonists to this circumstance ; inasmuch as the nearer they brought the relation, the pretty closely followed. In a majority of the states the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance as the English stat- ute of distributions, with the exception of the widow, as to the real estate, who takes one third for life only, as dower. The half blood take equally with the whole blood, as they do under the English stat- ute of distributions. Such a uniform rule in the descent of real and personal prop- erty gives simplicity and symmetry to the whole doctrine of descent. The English statute of distributions, being founded in justice and on the wisdom of ages, and fully and profoundly illustrated by a series of judicial decisions, was well selected as greater was their trade of dispensations of the most suitable and judicious basis on marriage. [" The distribution of personal property of intestates in the United States has undergone considerable modifications. In many of them the English statute of distributions as to personal property is which to establish our American law of descent and distribution." 2 Kent, 426- 428, and the notes.] (Ji) [This table will be found at the end of the work.] [421] 488 OF GENERAL LETTERS OF ADMINISTRATION. [PT. 1. BK. V. two ; from his grandfather to his great-grandfather, the common ancestor, three ; then, descending, from the great-grandfather to the great-uncle of the propositus, four ; from the great-uncle to the great-uncle's son, five ; from his great-uncle's son to his second cousin, six. It will be observed that kindred are found distant from the propositus by an equal number of degrees, al- though they are relations to him of very different denominations. Thus, a granddaughter of the sister, and a daughter of the intes- tate's * aunt (i. e. a great-niece and a first cousin), are in equal degree, being each four degrees removed. (Z) In the further consideration of this mode of computing prox- imity of kindred, and the rights to administration derived from it, several remarkable distinctions may be observed, with reference to the corresponding rules of the common law respecting succes- sion to inheritances. 1st. Relations by the father's side and the mother's side are Relations ™ equal degree of kindred; and, therefore, equally en- bymoih- titled to administration ; for, in this respect, dignity of equally en- blood gives no preference, (m) Hence it may happen titled with ^, ^ Y i- T p -1 • , , those of that relations are distant from the intestate by an equal number of degrees, and equally entitled to the adminis- tration of his effects, who are no relations at all to each other. 2dly. The half blood is admitted to administration as well as Half blood the whole ; (n) for they are kindred of the intestate, HOC 6x~ T 1 T eluded. and have been excluded from the inheritance of land only on feudal reasons. Therefore, the brother of the half blood shall exclude the uncle of the whole blood ; (o) and the ordinary may grant administration to the sister of the half or the brother of the whole blood, at his discretion, (p) {1} Thomas v. Ketteriche, I Ves. sen. wood v. Pace, 1 Vent. 424; Lord Win- 333; Thirtv. Kobinson, cited Ambl. 192. Chelsea u. Noicliffo, 1 Vein. 437; S. C. 2 So a first cousin twice removed is in the Froem. 95; Brown v. Farndcll, Carth. same degree as a second cousin ; for they 51 ; Anon. 2 Vent. 317 ; Janson v. Bui-y, are both in the sixth degree of consan- Bunb. 158; Croke v. Watts, 2 Freem. guinity. Silcox v. Bell, 1 Sim. & Stu. 112; Watts w. Crooke, Show. P.O. 108; 301 ; Lock V. Lake, 2 Cas. temp. Lee, 421. Burnet v. Mann, 1 Ves. sen. 155 ; [ante, (m) Moor v. Barham, cited in Black- 421, note (k).] borough V. Davig, 1 P. Wms. 53. (o) CoUingwood v. Pace, 1 Ventr. 424. (n) Smith v. Tracy, 1 Ventr. 323; S. (p) Brown p. Wood, Aleyn, 36; S. C. C. I Freem. 294; T. Jones, 93 ; 2 Lev. Style, 74; 2 Bl. Com. 505. Batseopost, 173; 1 Mod. 209; 2 Mod. 204; 3 Kcb. 426, 601, 620, 669, 730, 776,806, 831 ; Colling- [422] CH. II. § I.] TO WHOM THEY SHOULD BE GRANTED. 3dly. As younger children must stand in the same primogeni- degree of kindred as the eldest, primogeniture can give n"'^,S^j^to no right to preference in the grant of administration, (g') preference. * 4thly. The right to administration will follow the proximity of kindred, though ascendant ; and, therefore, when a child ^jie right ° , . . . of ascend- diea intestate, without wife or child, leaving a father, ants: the father is entitled to the administration of the personal effects of the intestate as next of kin, exclusive of all others, (r) of tiie Indeed, anciently, that is, in the reign of Henry 1, a " ^'" surviving father could have taken even the real estate of his de- ceased child, (s) But this law of succession was altered soon afterwards ; for we find by Glanville, that in the time of King Henry 2, the father could not take the real estate of his deceased child, the inheritance being then carried over to the collateral line. And it was subsequently held an inviolable maxim, that an inher- itance could not ascend. But this alteration of the law never extended to personal estate, (f) So with respect to the of the mother, if a child dies intestate without a wife, child, or """ ^'' father, the motlier is entitled to administration ; (u) and before the statute of 1 Jac. 2, c. 17, she could claim as next of kin the whole personal estate ; but by that statute, every brother and sister shall have an equal share with her. (ti) Again, if a man grand- dies intestate, leaving no nearer relations than a grand- f emd to"^^' father or grandmother, and an uncle or aunt, the gi-and- "'^ ""'^'^• father or grandmother, being in the second degree, though ascen- dant, will be entitled to administration to the exclusion of the uncle or aunt, who are related only in the third degree, (x) So a great-grandmother is equally entitled as an aunt. (2/) * However, though the ecclesiastical law of England acknowl- (q) Warwick v. Groville, 1 Phillim. 124; S. P. Collingwood v. Pace, 1 Ventr. 424, but see post, 427. by Hale C. B. (r) Eatcliffe's case, 3 Co. 40a,- Colling- («) See infra, pt. iii. bk. it. eh. i. § wood V. Pace, 1 Ventr. 414 ; Blackborough iv. «. Davis, 1 P. Wras. 51. ' (a;) Mentney u. Petty, Prec. Chanc. 593 ; (s) Blackborongb v. Davis, 1 P. Wms. Blackborough v. Davis, 1 P. "Wms. 41 ; S. 50. C. 1 Ld. Eaym. 686 ; Woodroof v. Wink- (t) 1 P. Wms. 51. And now, by Stat. 3 worth, Prec. Chanc. 527. & 4 W. 4, c. 106, s. 6, every lineal ancestor (,y) Burton u. Sharp, cited in 1 Ld. shall be capable of being heir to any of his Eaym. 686 ; 1 P. Wms. 45 ; S. C. but dif- issue. ferently reported as to the facts; Lutw. (m) Eatcliffe's case, 3 Co. 40 a, -where 1055; Lloyd u. Tench, 2 Ves. sen. 215, by the well-known case of the Duchess of Strange M. E. Suffolk, Bro. Admor. pi. 47, was denied. [423] [424] 490 OF GENERAL LETTERS OF ADMINISFEATION. [PT. I. BK. V. edges the rights of ascendants generally, yet it does not recognize them to the extent of the civil law, according to which, ascendants, of whatever degree, shall be preferred before all collaterals, ex- cept in the case of brothers and sisters. But our law prefers the next of kin, though collateral, before one, who, though lineal, is more remote. (2) 5thly. With respect to the right to administration, those in equal degree are equally entitled, subject to the discretion- equaiiy en- ary election of the court, whether males or females, (a) males, at The preference of males to females, which exists in the tion of^The succession of inheritances, seems to have arisen entirely couvt. from the feudal law; and has never been applied to rights respecting personal estate. (6) It remains to notice certain exceptions to the rule of computation, above stated, of the proximity of kindred and consequent right to administration. 1st. The parents of an intestate are as near akin to him as his children ; for they are both in the first degree, but in our law children are allowed the preference, (c) and so are their lineal descendants to the remotest de- gree, (c^) 2d. Where the nearest relations, according to the above com- gran'd-'^'° putation, are a grandfather or grandmother, and brothers father. or sisters of the intestate, although these are all related in the second degree, yet the latter are entitled to the administra- tion to the exclusion of the former. Qe) Exceptions in our law to the rules of proxim- ity of blood : Children of intestate preferred to his parents : (z) I P. Wms. 51, by Lord Holt, Stan- ley V. Stanley, 1 Atk. 458, by Lord Hard- wicke. (a) Brown v. Wood, Aleyn, 36 ; S. C. Style, 74. (6) But see post, 427 ; [McCIellan's Ap- peal, lePenn. St. 115 ; ante, 416, note{j); Sarkie's Appeal, 2 Penn. St. 159. Under tbe statute of New York, males are pre- ferred to females, and unmarried women to such as are married. 2 R. S. 74, § 28. The preference of a feme sole to a married woman was applied to a case where an in- testate left two daughters, one of whom was married and the other not, in Smith v. Young, 5 Gill, 197. In some states where a feme sole administratrix marries, her of- fice ceases and goes into the hands of her husband. See Pistole v. Street, 5 Port. 64 ; Ferguson v. Collins, 3 Eng. 241 ; Kavanaugh v. Thompson, 16 Ala. 817.] (c) 2 Bl. Com. 504. But by this prefer- ence it is not to be understood that they are not considered as perfectly equal in de- gree of proximity. Withy t. Mangles, 4 Beav. 358; S. C. in Dom. Proc. 10 CI. & Fin. 215. (d) Carter v. Crawley, Sir T. Raym. 500 ; Evelyn v. Evelyn, Ambl. 192. (e) Evelyn v. Evelyn, 3 Atk. 762 ; S. C. Ambl. 191 ; Winchelsea v. Norcliff, 2 Freem. 95 ; S. C. 1 Vern. 403 ; 2 Chanc. Rep. 374, 376 ; Blackborough v. Davis, 1 P. Wms. 45. CH. II. § I.] TO WHOM THEY SHOULD BE GRANTED. 491 * To recapitulate, in the first place the children, and their lineal descendants to the remotest degree; and on failure of jj^^^^ j|. children, the parents of the deceased are entitled to the lation. administration ; then follow brothers and sisters, then grand- fathers and grandmothers, then uncles or nephews, great-grand- fathers and great-grandmothers, and lastly cousins. (/) A more particular discussion of some parts of the present sub- ject will be found in a subsequent part of this treatise, where the rights of the next of kin of an intestate, under the statute of dis- tributions, are considered. (^) If the next of kin is a married woman, and renounces, the grant is made to the husband : for he has an interest, ?'«!>' "f ^ '^ . husband of and the grant must follow the interest, and the wife can- next of kin not, by renouncing, deprive her husband of his right to nounces. the grant. (A) Where two parties contest the right to administration before any grant has been made, both are to propound their pa,.yeg interests, and to proceed pari passu; and this whether tf"'?'''}.'!? the mutual interests are denied, or whether an interest administra- T • T 1 -11 T n 11 ''"" before IS denied and a will opposed : nor does the rule vary, any grant, whether the asserted next of kin are in the same or dif- celdpaH ferent degrees of relationship, (i) In Waller v. Hesel- ^"^"" tine, (/<;) the prerogative court decided that the question concern- ing a will and the question of interest between the crown and the ■next of kin, must all go on together. Where there are several persons standing in the same where degree of kindred to the intestate, the statute, we have severat"^^ seen, gives the ordinary his election to accept any one or "f g'"*/"" more of such persons. (Z) It remains to inquire * by degree: {/) 2 Bl. Com. 505. it would be improper to grant letters to (^r) Post, pt. III. bk. IV. ch. I. § lY. him. Ellmaker's Estate, 4 Watts, 34.] (A) Haynes v. Matthews, 1 Sw. & Tr. (i) Dabbs v. Chisman, 1 Phillim. 159. 460. [See Leverett v. Dismukes, 10 Geo. It is otherwise when a party is in the pos- 98. But the husband of an heir-at-law session of the administration. See post, is not entitled as a matter of right to ad- 440, note {/). ministration cum testamento annexo upon (k) Cited by Sir John NichoU in 1 the estate of the ancestor. If he stand in Phillim. 159; reported 1 Phillim. 170. the position of a litigant against the inter- (/) By rule P. R. (Non-contentious ests of the heirs and legatees of the estate, Business) No. 28, "Where administra- [425] [426] 492 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. ■what principles and rules of practice his discretion, in making such election, has been guided in the ecclesiastical court. The court have considered it their first duty, to place the ad- ministration in the hands of that person who is likely best to con- vert it to the advantage of those who have claims either in pay- ing the creditors, or in making distribution ; the primary object being the interest of the estate, (m) But where there is no material objection on one hand, or reasons for prefer- ence on the other, the court, in its discretion, puts the administration into the hands of that person, amongst those of the same degree of kindred, with whom the majority of parties interested are desirous of intrusting the estate, (w) On this principle, in a case as early as 1678, (o) it was decided by the two chief justices, the chief baron et aliis, that, where the deceased left four grandchildren, whereof one was of age and the other three minors, the administration should be granted to the mother as guardian to the three durante minore delate, in preference to the grandchild who was of age ; because, since the new statute (22 & 23 Car. 2, c. 10), which entitled them all to distribution, the interest of the three preponderated. the court grants a'd- mini-tra- tion to him whom the majority of partie9 interested desire : tion is applied for by one or some of the next of kin only, there being another or other next of kin equally entitled thereto, the registra,rs may require proof by afR- davit or statutory declaration that notice of such application has been given to such other next of kin." (m) Warwick v. Greville, 1 Phillim. 125; [Moore u. Moore, 1 Dev. (N. Car.) 352 ; Taylor v. Delancey, 2 Gaines Cas. 143; Atkins w. McCormick,4 Jones(Law), 274 ; Shorao's Appeal, 57 Penn. St. 356.] (n) Ehves o. Ehves, 2 Cas. temp. Lee, 573; Budd v. Silver, 2 Phillim. 115; Wil- liams V. Wilkins, lb. 101; Warwick «. Greville, 1 Phillim. 123 ; Coppin v. Dil- lon, 4 Hagg. 376 ; [Mandeville v. Mande- ville, 35 Geo. 243.] However, adminis- tration is not always granted to the ma- jority of interests. Wetdrill v. Wright, 2 Phillim. 248. See, also, In the Goods of Stainton, L. R. 2 P. & D. 212. [But a register, in granting letters of administra- tion, is bound to respect the nomination of the next of kin, when they decline to exercise their right to administer. Ell- maker's Estate, 4 Watts, 34. But see ante, 417, note (o). So in making choice among the next of kin, great respect is paid to the recommendation of those per- sons who have the most interest in the assets, on the reasonable presumption, that those who have the greatest interest to increase the estate, are most fit to ad- vise as to the administration. Rogers J. in McClellan's Appeal, 16 Penn. St. 110, 115; M'Beth o. Hunt, 2 Strobh. 335. And so, one of several next of kin in equal degree who has the greatest interest, has been held entitled to administration. Horskins u. Morel, T. IT. P. Charlt. 69. A devisee under the will has preference to the next of kin, who has no beneficial interest in the estate. Jordan v. Ball, 44 Miss. 194.] (o) Cartwright's case, 1 Freem. 258. See, also, Sawbridge v. Hill, L. R. 2 P. & D. 219. CH. U. § I.J TO WHOM THEY SHOULD BE GRANTED. 493 But, although, when the contest for an administration is be- tween two persons in equal degree of the whole blood, whole the general rule has been to grant it to that person in ferreVJn- whom * the maiority of those entitled to distribution '?^? "T?'^" •* -^ rial objec- concur ; yet that rule does not hold when the contest is "ons between one of the whole blood and one of the half proved: blood ; for in that case, the whole blood is preferable in the grant of administration to the half blood, though the majority of inter- ests concur in the latter, unless material objections can be proved against him of the whole blood. Qp) Primogeniture, as it has been already observed, gives no right to preference, so as to weigh against the wish of the p,.i,nogeni- majority of interests; yet if things are precisely equal, ^"'''^ = — if the scale is exactly poised, being the elder brother would incline the balance, (g') Again, by the practice of the court, a son has the preference to a daughter, (5^) unless there are material objections to son pre- him. (q^) And it has been held not enough to divest daughter: him of that preference, to show that he has intermeddled with the effects of the deceased without competent authority, (r) Cceteris paribus, a man accustomed to business is pre- ^ "■'*" ferred by the court to be administrator, (s) business Di'sf 6i'r6(i ' The fact of one of several next of kin being; also a / _ ° next of km creditor is rather adverse to, than in favor of, his being also cred- preferred in a contest for the administration, (i) In a case where the administration was contested between two (p) Mercer v. Moorland, 2 Cas. temp, adult females related in the same degree Lee, 499 ; Stratton v. Linton, 31 L. J., and residing in the state. Wickwire v. P. M. & A. 48. [Under the New York Chapman, 15 Barb. 302.] law, relatives of the whole blood are pre- (r) Chittenden v. Knight, 2 Cas. temp, ferred to those of the half blood. 2 R. S. Lee, 559. The rules that males are to be 74, § 28.] preferred to females is not so stringent as (g) Warwick v. Greville, 1 Phillim. 125 ; the rule that the grant will follow the S. P. as to an elder of two sisters, Coppin majority of interests. Iredale u. Ford, 1 V. Dillon, 4 Hagg. 376. Sw. & Tr. 305. Again, the former rule (9I) [See ante, 416, note {j) ; Rogers J. may be met by another rule, viz, that the in McClellan's Appeal, 16 Penn. St. 115 ; grant will be made priori petenti. Cordeax Sargent J. in Sarkie's Appeal, 2 Penn. St. v. Trasler, 34 L. J. N. S., P. M. & A. 159.] 127 ; S. C. 29 Jur. N. S. 587. (j^) [In New York, male relatives of the (s) Williams o. Wilkins, 2 Phillim. deceased, being minors and not residing 100. in the state, have not a right to be ap- {t) Webb v. Needham, 1 Add. 494. pointed administrators in preference to [427] 494 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. in an equal degree of relationship, one of whom was unobjection- next of kin able, but the other had been twice a bankrupt, * the a bank- , . . . , j. i rupt. court granted the administration to the lormer, and con- demned the latter in costs, (u) The court prefers cceteris paribus, a sole to a joint ad- ministration, because it is much better for the estate, and more convenient for the claimants on it, since the administrators must join and be joined in every act ; (x) and, d fortiori, the court never forces a joint adminis- tration upon unwilling parties, (jf) When administration has been once committed to any of the next of kin, others, even in the same degree of kindred, have, during the life of the administrator, no title to a similar grant ; so different is this case from that of an executor, who has a right to probate, though it has been already taken out by his co-executor. The maxim, " qui prior est tempore potior est jure," applies in the former but not in the latter instance, (a) But a next of kin who has even renounced may, upon the death of the party appointed administrator, come in and take administration de bonis non. (a) Where a person entitled to administration is resident in a for- eign country, the court will expect that due. diligence shall be used to give him notice of the application, before it will grant administration to another party. Thus where the intestate died in the department of Oise in France, leaving a widow resident there, and application was made for administration * by the next of kin, the court held The court prefers a sole to a joint ad- ministra- tion: and never forces a joint ad- ministra- tion. Wiien an adminis- trator is once ap- pointed, anothier of same de- gree of kindred cannot come into the admin- istration till the ad- ministrator is dead. Where a party en- titled to adminis- tration is resident abroad. (u) Bell V. Timiswood, 2 Phillim. 22. (x) 1 Phillim. 126; Stanley v. Barnes, I Hagg. 222 ; In the Goods of Nayler, 2 Robert. 409; ante, 412, note (?) ; but see, contra, Jacomb v. Harwood, 2 Ves. sen. 267, 268 ; post, pt. iii. bk. i. ch. ii. (y) Leggatt v. Leggatt, 1 Cas. temp. Lee, 348 ; Bell v. Timiswood, 2 Phillim. 22 ; Dampier v. Colson, 2 Phillim. 55 ; Coppin a. Dillon, 4 Hagg. 376; Coe v. Hume, 4 Hagg. 398. [But the probate court has power to appoint an additional administrator against the protest of one already appointed. Read v. Howe, 13 [428] [429] Iowa, 50.] It is contrary to the ordinary practice of the prerogative court of Can- terbury to join more than three in an ad- ministration ; but where five residuary legatees had been admitted joint adminis- trators by the court of York, the ^oriim Domicilii, a limited administration was also granted to the same parties by the former court. In the Goods of Blakelock, 1 Hagg. 682. (s) Toller, 98. (a) Skeffington «. White, 1 Hagg. 700, 702, 703 ; 2 Hagg. 626. CH. II. § I.J TO WHOM THEY SHOULD BE GRANTED. 495 that service of the decree in the usual manner on the Royal Ex- change was insufficient. (J) If the intestate left personal property, as well in the colonies as in this country, the errant of administration obtained . , . . ■' ' => _ _ Admmis- here will not extend to the colonies, though the intestate tration of propsrtv died and was resident here, (c) So a defendant who had out o£ this been arrested in Ireland, by a writ of ne exeat regno is- '^' sued out of chancery there, for a debt due to an intestate, was discharged, on the ground that the plaintiff had not obtained ad- ministration in that country. (JT) ■ In the case of a foreigner dying intestate within the British do- minions, it should seem, that if no question is raised, the . , . . Aaminis- court Will grant administration to the person entitled to tration of the effects of the deceased, according to the law of his of a for- own country, (e) If the legal title be disputed, the ®'SQ«- question will depend on the fact whether the deceased was domi- ciled within the British dominions, or only a temporary resident there. (/) * If the intestate was domiciled in a foreign country, or within the king's dominions out of England, and left assets in Adminis- ° ... & ' tration to a this country, administration must be taken out here, as person well as in the country of domicil. (^) But if he left no out of this (b) Goddard v. Cressonier, 3 Phillim. 637. The same, where the next of kin is resident in the West Indies. Miller v. Washington, 3 Hagg. 277. See post, 441. (c) Bum V. Cole, Ambl. 416; Atkins V. Smith, 2 Atk. 63, by Lord Hardwicke ; [Trecothick v. Austin, 4 Mason, 33.] But the rights of such an administrator will extend to the property there, if the de- ceased was domiciled here ; and the judge of probate in the colonies ought to follow the English grant. See ante, 365. (d) Swift V. Swift, 1 Ball & Beat. 326. (c) In the Goods of Beggia, 1 Add. 340; In the Goods of the Countess Da Cunha, 1 Hagg. 237. Administration of the effects of a deceased, who died domi- ciled in Scotland, was granted to a party entitled to them according to the Scotch law, on proof of the law by affidavit from a Scotch solicitor. In the Goods of Stew- art, 1 Curt. 904. See, also, In the Goods of Rogerson, 2 Curt. 656; In the Goods of Hill, L. K. 2 P. & D. 89. The regular course seems to be that the ambassador should certify the law of the country he represents. In the Goods of Dormoy, 3 Hagg. 767. {/) 1 Add. 342 ; and see ante, 366 et seq. and infra, pt. iii. bk. iv. ch. i. § v. Where a party applies for administration, as the agent of a foreigner resident abroad, and entitled to administration, the appli- cation cannot be supported, without ex- hibiting to the court a proper authority from the person so entitled. In the Goods of the Elector of Hesse, 1 Hagg. 93. (g) See ante, 361, 362 ; Le Briton v. Le Quesne, 2 Cas. temp. Lee, 261 ; Attor- ney General v. Bouwens, 4 M. & W. 193 ; [Finney v. McGregory, 102 Mass. 186, 189-193 ; Taylor v. Barron, 35 N. H. 494- 497. The administration granted in the [430] 496 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. country of assets in this country, the court of probate has no iuris- property , . '' ,.■,.. here. diction to malie any grant of administration is respect of his estate. (A) If tlae party applying for administration here has already obtained a grant in the proper court of the country where the domieil was, it should seem that the court here, generally speaking, would follow that grant, (i) But if an original admin- istration be applied for here, in such case, whether the deceased were a British subject, or an alien, since, in either event, the dis- tribution of his personal property is to be regulated according to country of the doraicil of the deceased is the principal administration, and that granted in any other country is merely an- cillary to it. Stevens v. Gaylord, H Mass. 256; Fay v. Haven, 3 Met. 109, 114; Clark V. Clement, 33 N. H. 567 ; Merrill V. New England Mut. Life Ins. Co. 103 Mass. 245, 248; Dawes v. Boylston, 9 Mass. 337 ; Green v. Rugely, 23 Texas, 539 ; Spraddling v. Pippin, 15 Missou. 118; Childress u. Bennett, 10 Ala. 751; Adams v. Adams, 11 B. Mon. 77 ; Perkins V. Stone, 18 Conn. 270; Collins u. Bank- head, 1 Strobh. (S. Car.) 25; post, 1663, note {h}), 1664, note (A). It is not essen- tial that administration should be taken in the place of the domieil of the deceased before an administrator is appointed in another state or country where adminis- tration is necessary. Stevens v. Gaylord, 11 Mass. 256; Bowdoin v. Holland, 10 Cush. 17 ; Pinney v, McGregory, 102 Mass. 1 92, 1 93. So it is not necessary that the will of a non-resident testator should be proved in the state of his domieil, before granting administration upon estate left by him in another state. Bowdoin v. Hol- land, 10 Cush. 17; ante, 361, note (p) ; Shephard v. Rhodes, 60 III. 301. Admin- istration granted in one state on property there situated of a resident of another state, is not impaired or abridged by pre- vious grant of administration in such other state. Henderson v. Clarke, 4 Litt. (Ky.) 277 ; Crosby v. Gilchrist, 7 Dana, 206; Pond v. Makepeace, 2 Met. 114; Moore v. Parmer, 5 T. B. Mon. 42. It was held in Illinois that a citizen of an- other state, in 'which an intestate died leaving estate upon which administration was granted in the state of his domieil, and also real estate in Illinois, might cause administration to be taken out in Illinois, a claim to be allowed, and the real estate to be sold for its payment ; and that it was not necessary to show that the personal estate of the intestate in such other state was exhausted. Rosenthal v. Bemick, 44 111. 202.] (A) In the Goods of Tucker, 3 Sw. & Tr. 585 ; Evans v. Burrell, 28 L. J., P. M. & A. 82 ; In the Goods of Fittoek, 32 L. J., P. M. & A. 157 ; In the Goods of Coode, L. R. 1 P. & D. 449 ; [Miller v. Jones, 26 Ala. 247 ; Crosby v. Leavitt, 4 Allen, 410 ; Grimes v. Talbert, 14 Md. 169 ; Thumbs. Gresham, 2 Mete. (Ky.) 306; Boughton V. Bradley, 34 Ala. 694 ; Henderaon v. Clarke, 4 Litt. (Ky.) 277 ; Jeffersonville R. R. Co. V. Swayne, 26 Ind. 477. But in Alabama it is only when the intestate resides out of the state that the existence of assets within the state is necessary to give the probate court jurisdiction to ap- point an administrator. Watson v. Col- lins, 37 Ala. 587 ; S. C. 1 Ala. Sel. Cas. 515. See Pinney ». McGregory, 102 Mass. 186 ; Estate of Harlan, 24 Cal. 182; ante, 291, note (ol).] (t) See ante, 362, 369, 370; Viesca v. D'Araraburn, 2 Curt. 277 ; In the Goods of Rogerson, 2 Curt. 656 ; In the Goods of Henderson, 2 Robert. 144. As to whether the court will grant administra- tion limited to the pendency of a suit in the foreign court, to a person duly ap- pointed by that court, see In the Goods of Morgan, 2 Robert. 41 5. CH. II, §10 TO WHOM THEY SHOULD BE GRANTED. 497 the law of the country in which he was a domiciled inhabitant at the time of his death, (/c) it appears to be a necessary consequence that the grant should be made to the person entitled to the effects of the deceased according to the law of that country, (l) * By stat. 24 & 25 Vict. c. 121, s. 4, " "Whenever a convention shall be made between her majesty and any foreign state, ^^^?^ * whereby her majesty's consuls or vice consuls in such 121. foreign state shall receive the same or the like powers jectsoffor- and authorities as are hereinafter expressed, it shall be shaiVdte?n lawful for her majesty by order in council to direct, and {'fj' ™^^^'' from and after the publication of such order in the Lon- minions don Gazette, it shall be and is hereby enacted, that whenever any subject of such foreign state shall die within the dominions of her majesty, and there shall be no person present at the time of such death who shall be rightfully entitled to administer to the estate of such «is" states deceased person, it shall be lawful for the consul, vice minister. consul, or consular agent of such foreign state, within that part of her majesty's dominions where such foreign subject shall die, to take possession and have the custody of the personal property of the deceased, and to apply the same in payment of his or her debts and funeral expenses, and to retain the surplus for the benefit of the persons entitled thereto ; but such consul, vice consul, or con- sular agent shall immediately apply for and shall be entitled to obtain from the proper court letters of administration of the effects of such deceased person, limited in such manner and for such time as to such court shall seem fit." and tliere shall be no person to administer to their estates the consuls of such for- (k) See post, pt. III. bk. iv. ch. 1. § v. (/) See In the Goods of Johnston, 4 Hag^. 182. But see, also, In the Goods of Veiga, 3 Sw. & Tr. 13. But adminis- tration of the effects of a domiciled Amer- ican dying in this country, in ilinere lim- ited to the purpose of paying his debts, &c. and transmitting the balance to the treasury of the United States, was refused to the American consul, the crown oppos- ing the grant, though none of the next of kin appeared to show cause against it. Aspinwall v. The Queen's Proctor, 2 Curt. 241. See In the Goods of Wy ckoff, 3 Sw. & Tr. 20. The law of this country will not, it should seem, recognize the right of VOL. J. 32 a foreign consul to take possession of the property of a foreigner dying here, in itin- ere, domiciled in his own country. 2 Curt. 247. See stat. 24 & 25 Vict. c. 131, s. 4, supra. [A citizen of Virginia started, with his family and effects, to settle in Ken- tucky, and died on the route, in Virginia. His family continued the journey with the property to Kentucky, where they settled. No part of his property was in Kentucky at the time of his death ; it was held that the county court of the county where the family located had jurisdiction to grant administration. Burnett v. Meadows, 7 B. Mon. 277. See Briggs v. Rochester, 16 Gray, 337.] [431] 498 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. It may here be remarked, that although it is fully settled (as Rights and ^^^^^ ^^^^ hereafter be occasion to show), (m) that the liabilities right of succession to the personal estate of an intestate of foreign " adminis- is to be regulated by the law of the country in which he was domiciled at the time of his death, yet the adminis- tration of the estate must be in the country in which possession of it is taken and held under lawful authority, (m^) Thus, by the law of England, the person to whom administration is granted by the court of probate is by statute bound to administer the estate, and to pay the debts of the deceased, (m^) The letters of * ad- ministration, under which he acts, direct him to do so, and he takes an oath that he will well and truly administer all and every the goods of the deceased and pay his debts so far as his goods will extend, and exhibit a full and true account of his administration. And these duties remain the same, notwithstanding the intestate may have died domiciled elsewhere. Accordingly, in Preston v. Lord Melville, (n) the persons named as trustees and executors in the will of a domiciled Scotchman having declined to act, his next of kin obtained letters of administration of his personal estate in England from the proper ecclesiastical court there, and afterwards consented to the appointment, by the court of session of Scotland, of other persons as trustees and executors in place of those named in the will, with all the powers that had been thereby given to them. These trustees so appointed raised an action in the court of session against the administratiix, calling on her to transfer to them the personal estate possessed by her under the administration, and offering her a full release from liability ; and it was held by the house of lords (reversing the decree of the court of session), that the personal estate in England must (m) Post, pt. III. bk. IT. ch. i. § v. tator or intestate, which are there found, (m') [See Burbank t!. Payne, 17 La. Ann. and which come to his hands by virtue of 15; Clark v. Clement, .33 N. H. 563; such appointment, and that he is to be Banta v. Moore, 2 McCarter (N. J.), 97 ; held accountable therefor only in the legal Fay V. Haven, 3 Met. 109. In Norton t. tribunals of the state or country under Palmer, 7 Cush. 523, 52-t, Bigelow J. said : which he holds his office. Boston i». Boyl- " It is a well settled rule of law in this ston, 2 Mass. 384; Stevens v. Gaylord, commonwealth, that an executor or ad- 11 Mass. 256 ; Campbell v. Sheldon, 13 ministrator duly appointed under the au- Pick. 23; Fay v. Haven, 3 Met. 114."] thority and jurisdiction of another state {irfi) [See post, pt. iv. bk. i. ch. i.] or country, acquires a good title to the (n) 8 CI. & Fin. I, personal property and assets of his testa- [432] CH. II. § I.J TO WHOM THEY SHOULD BE GRANTED. 499 be administered there by the administratrix, by virtue of the let- ters of administration, (o) Again, with respect to all the property of which the intestate died possessed in the queen's dominions out of England, the ad- ministrator, under the letters granted there, has, it should seem, a right to hold it against an administrator under a grant obtained in this country, (o^) Thus, in Currie v. Bircham, (^) the widow of an officer who died intestate in India obtained letters of adminis- (o) See accord, per Lord Cranworth in Enohin v. Wylie, 10 H. L. Cas. 19. See, also, Lord St. Leonard's observations on this case in the Carron Iron Company v. Maclaren, 5 H. L. Cas. 456. (oi) [But see ante, 362, notes. It has been held that the administrator appointed in one state has no power over property in another state ; Morrell v. Dickey, 1 John. Oh. 153 ; Doolittle v. Lewis, 7 John. Ch. 45 ; Goodwin v. Jones, 3 Mass. 514 ; Smith V. Guild, 34 Maine, 443 ; Goodall v. Mar- shall, 11 N. H. 88 ; Willard v. Hammond, 21 N. H. 385 ; Sabin u. Gilraan, 1 N. H. 193 ; Mason v. Nutt, 19 La. Ann. 41 ; Henderson v. Eost, 15 La. Ann. 405 ; Dor- sey V. Dorsey, 5 J. J. Marsh. 280 ; McCarty, V. Hull, 13 Missou. 480; Riley v. Kiley, 3 Day, 74 ; Williatas v. Storrs, 6 John. €h. 353; Vaughan u. Barrett, 5 Vt. 333 ; San- ders V. Jones, 8 Ired. Eq. 246 ; that he has no interest in debts due there ; Sabin v. Gilman, 1 N. H. 193; Thompson v. Wil- son, 2 N. H. 291, 292 ; Heydock's Appeal, 7 N. H. 503 ; nor any authority to collect them; Chapman v. Fish, 6 Hill, 555; Cosby V. Gilchrist, 7 Dana, 206 ; Moore V. Tanner, 5 Monr. 42 ; Smith v. Guild, 34 Maine, 443 ; Sabin v. Gilman, 1 N. H. 193; Rand c. Hubbard, 4 Met. 255; Thompson v. Wilson, 2 N. H. 291, 292; Willard v. Hammond, 21 N. H. 385 ; Hey- dock's Appeal, 7 N. H. 503 ; Goodall v. Marshall, 11 N. H. 88 ; Picquet, appellant, 5 Pick. 75; see Hutchins o. State Bank, 12 Met. 421 ; Goodwin «. Jones, 3 Mass. 514; Stevens v. Gaylord, 11 Mass. 256 ; Vaughan a. Barrett, 5 Vt. 333 ; Pond v. Makepeace, 2 Met. 114; Mason v. Nutt, 19 La. Ann. 41 ; Henderson ti. Bost, 15 La. Ann. 405 ; Commonwealth v. Griffith, 2 Pick. 181; that he cannot indorse a note so as to enable an indorsee to sue thereon, Thompson v. Wilson, 2 N. H. 291, 292; McCarthy v. Hall, 13 Miss. 480 ; Steams V. Burnham, 5 Greenl. 261 (otherwise held in Grace v. Hannah, 6 Jones (Law), 94 ; and in Rand v. Hubbard, 4 Met. 252, 259 et seq.) ; nor discharge a debt so as to bar a suit by an administrator ap- pointed there. Willard o. Hammond, 21 N. H. 382 ; Vaughan v. Barrett, 5 Vt. 333. A judgment recovered in one state, in a case where no defence was made by an administrator appointed in another state, on a demand due to the intestate from a citizen of the former state, is no bar to a suit on the same demand by an administrator of the same intestate duly appointed in the former state, although execution on the first judgment was levied on the debtor's real estate and returned satisfied. Pond v. Makepeace, 2 Met. 114 ; Langdon v. Potter, 11 Mass. 313; Borden V. Borden, 5 Mass. 77. See Smith v. Guild, 34 Maine, 443 ; Taylor v Barron, 35 N. H. 484, 495, 496. Bat it was held in Commonwealth v. Griffith, 2 Pick. 11, that the administrator of a deceased owner of a fugitive slave, who had escaped from Virginia to Massachusetts before the own- er's decease, being appointed in Virginia, and being by the laws of that state the per- son to whom the service of the slave was due, might reclaim the slave in Massachu- sett without taking out administration in the latter state.] (p) 1 Dowl. & Ryl. 35. [See Wheelock V. Pierce, 6 Cush. 288 ; Bell J. in Taylor V. Barron, 35 N. H. 495.] 500 OF GENERAL LETTERS OF ADMINISTRATION. [PT. L BK. V. tration in her husband's effects in the recorder's court, at Bombay, and remitted the proceeds of the effects in government bills to her agent in England. * A creditor of the intestate took out let- ters of administration to him in this country, and brought an action against the widow's agent for money in his hands, part of such proceeds so remitted. It was held that the wife was entitled to all the effects of which the husband died possessed in India, by virtue of the letters of administration granted to her in that country, and that therefore no action lay against her agent at the suit of the plaintiff, under the letters he had obtained in the pre- rogative court here, (g') However, in Hervey v. Fitzpatrick, (r) it was held by Wood V. C. that where the foreign administrator remits a part of the assets to England to be sold and the proceeds to be carried to the account of the intestate's estate, and comes himself to this country, he may be sued in a court of equity here by a next of kin of the deceased, who has taken out administra- tion here, in respect of those assets ; and that the court has a right to deal with them, and to appoint a receiver, if there is danger of their being taken out of the jurisdiction. If a bastard, who, as nullius films has no kindred, or any other Adminis- person having no kindred, die intestate, and without wife or child, it has formerly been holden, that the ordi- nary could seize his goods, and dispose of them to pious uses ; but it is now settled that the king is entitled to them as ultimus hceres, («) not in a fiduciary character {g) See, also, Jauncey v. Sealej', 1 Vern. 397 ; Story Confl. Laws, ch. xiii. § 518; ante, 360 et seq., [362, note (u), 371 ; post, 1929, note (6). The executor of one dying in Tahiti, having administered upon the estate there, and paid all the debts and legacies of the testator there payable, remitted the balance to an agent in Massachusetts, with directions to pay the same to the residuary legatee, who was the testator's father, resident in the United States ; it was held that such bal- ance was not assets, and could not be claimed by an administrator of the testa- tor subsequently appointed in Massachu- setts, but was money had and received by the agent to the use of the residuary leg- atee, who was entitled to recover the same. Wheelock v. Pierce, 6 Cuah. 288. tration to a bastard, or other person without kindred. Shaw C. J. : " This sum was not assets. The defendant received no property from the testator; nor was ho indebted to him, or in any way a debtor to his estate." 6 Cush. 291 ; Fay u. Haven, 3 Met. 109. Property legally situated within one state at the time of the death of the testator or intestate, and already disposed of and ad- ministered, in its courts by its laws, can- not be affected by administration or the want of it in another state to which a leg- atee carries it after being delivered to him by order of the probate court. Wells v. Wells, 35 Miss. 638 ; post, 1663, note (A^).] (r) Kay, 421. (s) Jones V. Goodchild, 3 P. Wms. 33 ; Rutherford v. Maule, 4 Hagg. 213 ; Dyke V. Walford, 5 Moore P. C. 434 ; S. C. 6 Notes of Cas. 309. In this last case it was [433] CH. II. § I.J TO WHOM THEY SHOULD BE GRANTED. 501 but beneficially ; (t) subject, nevertheless, to the debts of the intestate, (m) Yet in such case it is the practice to transfer the royal claim by letters patent, or other authority, from the crown, with * a reservation, as it is said, of a tenth, or other small propor- tion of the property, and then the court of course grants to such appointee the administration, (x) It has indeed been asserted, that such letters patent are merely in the nature of a recommenda- tion ; and that though it be usual for the court to admit such patentee, yet it is rather out of respect to the king, than strictly of right. («/) But if the court chose to grant administration to any other person, the right of the crown would remain the same. The administrator, whoever he might be, would be a trustee for the crown, (s) Where a bastard or other person having no kindred dies intes- tate, leaving a widow but no children, the widow is not entitled to the whole of his personal estate, but to one moiety only, and the crown is entitled to the other, (a) By stat. 15 Vict. c. 3, administration of the personal estate of intestates, where the queen is entitled, may be granted isvict. to the solicitor to the treasury for the time being, as ^ifi'islra- nominee of her majesty. This statute only dispenses t'on'obe •" •' .; r fjrantea to (by section 2) with the necessity of the nominee of the *•>« ^o''*'- ■ • \i ,-,..■ . , T , . tor of the crown giving the usual administration bond on taking treasury as out administration to the estate of an intestate. In nominee" ^ other respects he is to be subject to the same obligations Liability of as any other administrator, and all the duties and liabili- ^^?^. ^^- ^ ^ ^ ^ ' ^ ministra- ties of an ordinary administrator are imposed on him. (J) 'or- If he improperly pays to the crown part of the intestate's effects, held that the right of adminiatration to igree, but rests only on mutual ownings the goods of a bastard, who died intestate and general reputation of relationship. 2 and unmarried, in the county of Lancas- Gas. temp. Lee, 396, 397. ter, belonged to the queen in right of her (y) Manning v. Knapp, 1 Salk. 37. duchy of Lancaster, and not in right of (z) 5 Moore P. C. 495. Where a case her crown. is not within the statutes of administra- (t) Kane v. Reynolds, 4 De G., M. & tion, the court, in the exercise of its dis- G. 571, by Lord Cranworth. cretion, usually grants the administration (u) Megit u. Johnson, 2 Dougl. 548, by to the interest. Seepost,ch. iii. § i. p. Lord Mansfield. 462. {x) Stote V. Tyndiill, 2 Gas. temp. Lee, (o) Gave v. Eoberts, 8 Sim. 214. 394. But as the most remote relation will (6) Ke Dewell, Edgar u. Reynolds, 4 defeat the Icing's title, an allegation will Drew. 269 ; Attorney General u. Kohlcr, be admitted as against the king's nomi- 9 H. L. Gas. 654. See, also, post, 439. nee, though it does not set forth any ped- [434] 502 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. Adminis- tration to felon. though such payment is made under authority of a warrant under the sign manual, he makes himself personally liable to restore it with interest * to parties afterwards proving themselves legally en- titled as next of kin. (e) If the effects of an intestate vested in the crown by forfeit- ure, (d) as in the case of a,felo de se, and letters of ad- ministration were granted to an administrator in conse- quence of a warrant from the king, such administration was not void ; and though the letters, after the usual form, viz, " to pay debts, &c." contained this additional clause, " For the use and benefit of his majesty," the administrator would have been an- swerable for the debts of the deceased, and would not have been permitted to deny the validity or operation of the grant of admin- istration, (e) In a case of complete intestacy, if the ordinary would not grant Mandamus administration as the statutes appointed, a mandamus lay to compel him. (/) Thus if he refused to commit administration to the husband of the wife's effects, a man- damus would have issued. (^) So that writ may be ob- tained to enforce the right of a sole next of kin. (A) And in a case where the widow applied for a mandamus to com- mit administration to her, although the court refused it in that form, on the ground that it would deprive the ordinary of the election, which the statute gave him, between her and the next of kin, yet they issued the writ generally, to grant administration of the goods of the intestate, (i) to compel grant of ad- ministra- tion to par- ties enti- tled under the statute. (c) The interest ought to be computed from the time when all payments on the part of the estate have been made. 4 Drew. 296. Upon the death of the nom- inee of the crown the liability only con- tinues against his personal representative, and not against his successor in ofSce, un- less he takes out administration de bonis non to the same estate. 9 H. L. Cas. 654. ((f) But see now stat. 33 & 34 Vict. c. 23, ^s. 1, by which forfeiture for any treason or felony oxfelo de se is abolished. (e) Megit v. Johnson, 2 Bougl. 542 ; Eex V. Sutton, 1 Saund. 271 6, note (1), (/) Anon. 2 Sid. 114; Offley v. Best, I Lev. 187. In case of an undue grant of administration, if it is about to be sealed, [435] a pi-ohibition issues ; if it has passed the seal, a mandamus lies to grant it to the proper party. Anon. 1 Freem. 372. [The superior court of Georgia may issue a. mandamus to the clerk of a court of ordi- nary to issue a citation to show cause why the applicant should not be appointed ad- ministrator. Ex parte Carnochan, T. U. P. Charlt. 215.] (g) Rex V. Bettesworth, 2 Stra. 891 ; lb. 1118. (A) Eex V. Dr. Hay, 1 W. Bl. 640 ; Rex V. Horsley, 8 East, 405. (i) Anon. 1 Stra. 552, cited by Law- rence J. in 8 East, 408. [Mandamus is the remedy for the refusal of the ordi- nary to allow an appeal from his deci- CH. II, § I.J TO WHOM THEY SHOULD BE GRANTED. 503 * It is a good return to such a mandamus, that a controversy is depending in the court, whether there is a will or not ; for then, as Holt C. J. said, suppose the will prove good, what will the granting of the administration signify. (/) It has always been considered, both in the common law and spiritual courts, that the object of the statutes of admin- xfextotki istration (31 Edw. 3, c. 11, and 21 Hen. 8, c. 5) is to excluded'" give the management of the property to the person who administra- has the beneficial interest in it. (Jc} And the inclina- tbey hare tion has been so strong to effectuate this object, by grant- "" "iterest. ing the administration to the interest, that in some instances, not only the practice of the ecclesiastical court, but the decisions of the judges delegate, have not scrupled to disregard the express words of the statute. (Z) Thus, in Bridges v.- The Duke of New- castle (Delegates, 1712), Lord Hollis died intestate, and Bridges claimed administration as next of kin. The effects were vested by act of parliament in the Duke of Newcastle, to pay the debts of the deceased. The judge of the prerogative court (Sir Charles Hedges) and afterwards the delegates, held that the next of kin was excluded, on the ground that he had no interest, and granted administration to the Duke of Newcastle, (m) So in Young v. Pierce, (w) administration was refused by the prerogative and the delegates to a next of kin, on the ground that she had released all her interest, and the letters were granted to the party beneficially entitled to the personal estate, (o) Another strong instance will sion. Gresham D. Pyron, 17 Geo. 263. So of the personal estate. Sweezy «. Willis, where a judge of probate improperly re- 1 Bradf. Sur. 495.] fuses to transfer to the proper court a [1) See the judgment of Lord Cotten- cause in which he is personally interested, ham, in Withy v. Mangles, 10 CI. & Kn. mandamus lies to compel its transfer. State 248, accord. w. Castleberry, 23 Ala. 85. But the proper (m) Citedby the court in West u.Wilby, mode of proceeding where administration 3 Phillim. 381. [Where two applicants for is granted to one not entitled to it, is by administration are of the same degree of appeal, and not by mandamus. State v. aflSnlty to the deceased, the facts that one Mitchell, 3 Brev. (S. Car.) 520.] of them has received his full share in ad- (j) Anon. 5 Mod. 375 ; Eex v. Dr. Hay, vancements, and that he claims part of 1 W. Bl. 640. the property adversely to the intestate, are (k) Wetdrill v. Wright, 2 Phillim. 248 ; to be taken into consideration. Moody v. [Clay V. Jackson, T. U. P. Charlt. 71 ; Lev- Moody, 29 Geo. 519.] erett v. Dismukes, 10 Geo. 98; Bieber's (n) 1 Freem. 496. Appeal, 11 Penn. St. 157; ante, 426, note (o) This was a case of administration (n) ; post, 462. Where the right to admin- de bonis non ; but it will appear in a sub- ister is not settled by statute, it will be sequent section, that, witli respect to the assigned to him who is to have the surplus obligation of the statute, there is no dif- [436] 504 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK.-V. be found in the next section, with respect to administration cum testamento annexo ; in * granting which, it has been established by the decisions both of common lawyers and civilians, contrary to the words of the act, that the next of kin is to be excluded from the administration when there is a residuary legatee who desires it. Again, the statutes of administration (31 Edw. 3, c. 2, and 21 If the next Hen. 8, c. 6) provide that the ordinary shall grant ad- befoie ad- ministration to the next of kin, or the widow, or to both ; tion'^ "'" 3-"^ therefore these parties have a statutory right to the ^™enre- administration, enforceable, as it has just appeared, by sentatiye is mandaMus. But the obligation of the statutes has, in entitled to . . . it: several adjudged cases, as well as in practice, been con- sidered to extend only to such persons as are next of kin at the time of the intestate's death ; (p) and therefore the court is not bound to grant administration to one who is not entitled to a ben- eficial interest in the effects, although by the death of interme- diate persons, he may have become next of kin at the time the grant is required. Accordingly, it was the established practice and course of the prerogative office, that if all those who were next of kin at the time of the death of the intestate are dead, then the representative of such next of kin, being entitled to the beneficial interest, is also entitled to the administration, whether original or de bonis non ; with this limitation, however, in both cases, that a person originally in distribution is preferred to the representative of the next of kin. (^q) But it is no defence to an action brought by such rep- resentative, as administrator to the original intestate, against a debtor to his estate, that the defendant paid the debt in question to the next of kin, who died without taking out letters of administration, (r) * There is a distinction between a person appointed executor, and one entitled to the administration as next of kin, with respect to the obligatory consequences of but pay- ment to the next of kin is no an- swer to an action by his repre- sentative as adminis- trator to the original intestate. ference between an administration de bonis non and an original administration. (p) Savage v. Blythe, 2 Hagg. Appen- dix, 150; Almes v. Almes, lb. 1.55; and see the observations of the learned re- porter, lb. 156. (q) 2 Hapg. Appendix, 157; and see Palmer v. Alicock, 3 Mod. 58 ; S. C. [437] [438] Skinn. 212, 218 ; Comberb. 14 ; Show. 407, 486 ; but sec, also, Ecx y. Hay, 1 W. Bl. 641 ; S. C. 4 Bmr. 2295. (r) Mitchell u. Moorman, 1 Y. & Jerv. 21 ; and it shall make no difference, though the grant of administration to the plaintiff be, in its terms, of the goods, &c. " left un- adminisiered " by the next of kin. lb. CH. II. § I.] TO WHOM THEY SHOULD BE GRANTED. 505 administering the goods of the deceased. An executor, A next of ^ ° ... I'll cannot it has been sliown, after an act of administration, cannot becom- refuse to accept the executorship, and take probate ; (s) take out but although a next of kin may have intermeddled with ("valio"'^' the effects, and made himself liable as executor de son \^^"-^lf^.^ tort, he cannot be compelled by the court to take upon niccwied . . . with the himself the office of administrator, (i) effects. Administration may be granted to the attorney of all the next of kin, provided they reside out of the country ; and if . ^ • ■ the effects are under tv?enty pounds, such administra- tiation , . granted to tion may be granted whether they are so resident or the attov- not. (w) By rule 32, P. R. (Non-contentious Business), next of " In the case of a person residing out of England, admin- '""' istration, or administration with the will annexed, may be granted to his attorney acting under a pov^er of attorney." (m^) But where a person solely entitled to the grant is resident in this coun- try, and able to take it himself, the court will decline to decree it to his attornej', for his use and benefit. («) On one occasion the court granted, to the agent of the Elector of Hesse, an administration limited to substantiate proceedings in chancery respecting a debt due to the late elector ; but declined to extend the administration to the receipt of the debt, without a power of attorney from the proper authorities, (z/) * Where letters of administration are granted to persons under a power of attorney from the party entitled to the representation, the letters express that they are granted "for the use and benefit " of the latter. (2) But these words do not exclude the claim of other persons to share in the personal estate. («) It was, indeed, (s) Ante, 276. comb, 2 Bradf. Sur. 105 ; Isham v. Gib- (() Ackerley v. Oldham, 1 Phillim. 248 ; bons, 1 Bradf. Snr. 69 ; Plummer v. Bran- Ackerlcy v. Parkinson, 3 M. & Sel. 411 ; don, 5 Ired. Eq. 190; Willing v. Perot, 5 In the Goods of Fell, 2 Sw. & Tr. 126. Eawle, 264.] (m) Toller, 108. As to what shall con- {x) In the Goods of Burch, 2 Sw. & Tr. Btitutc a proper authority to apply for the 139. grant, as the attorney of the party en- (y) In the Goods of the Elector of titled to it, SCO Lucas v. Lucas, 3 Cas. Hesse, 1 Hagg. 93. Sec, also, In the temp. Lee, 576 ; In the Goods of Eeitz, 3 Goods of Beggia, 3 Add. 340. Hagg. 766; In the Goods of Elderton, 4 («) The form of such letters will be Hagg. 210 ; [Bleakley's Estate, 5 Whart. found at length in 10 Sim. 629; 2 Hare, 3gl 1 537, note (a). See, also, In the Goods of (k1) [Smith V. Munroe, 1 Ired. (Law) Cassidy, 4 Hagg. 360; post, 468, 469. 345. And the grant is according to the (a) Anstruther v. Chalmcr, 2 Sim. 5. locus of the assets. St. Jurgo v. Dun.s- [439] 506 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. held, in the case of De la Viesca v. Lubbock, (5) that where admin- istration has been granted to the attorney of a person abroad for the use and benefit of that person, the latter may sue the admin- istrator in this country without making the parties beneficially in- terested parties to the suit, and without taking out letters of ad- ministration in this country ; for that as the letters were expressly granted to the administrator as the attorney of the party abroad, he might safely pay over to that party the moneys received under the authority of the letters. However, in the subsequent ease of Chambers v. Bicknell, (e) it was held that such an administrator is liable to be sued, in respect of the estate of the intestate, by the parties beneficially interested in it, in the same way as if he had obtained letters of administration in his own right. (cZ) The general rule is, that where a person is authorized by a simple power of attorney to take out administration, the court ought to decree him such administration as it would have granted to the person who conferred the power if he had applied for it him- self, (e) If the attorney be resident out of the jurisdiction, the sureties to the bond must be resident within the kingdom. (/ ) * If none of the next of kin will take out administration, a creditor may, by custom, do it ; (^) on the single ground that he cannot (J) 10 Sim, 629. for thirty days after the death of the in- (c) 2 Hare, 536. testate, to take admiaistration of his estate, (d) See, also, accord. Re Dewell, Edgar the probate court shall commit adminis- V. Reynolds, 4 Drew. 269 ; Attorney Gen- tration to one or more of the principal eral a. Kohler, 9 H. L. Cas. 654 ; ante, i3i. creditors, if there is any competent and (c) In the Goods of Goldborough, 1 Svr. willing to undertake the trust, Genl. Sts. ^ Tr. 295. c. 94, § 1, clause " Second." See ante, 416, (/) In the Goods of O'Byrne, 1 Hagg. note (/). See Arnold v. Sabin, 1 Gush. 316; In the Goods ofLeeson, 1 Sw. & Tr. 525; Hall u. Thayer, 105 Mass. 224; Smith 463. But see In the Goods of Reed, 3 Sw. v. Sherman, 4 Gush. 408, 412 ; Stehbins v. & Tr. 439 ; post, pt. i. bk. v. ch. it. Lathrop, 4 Pick, 33 ; Churchill i>. Prescott, (g) 2 Bl. Com. 5.05. Ho has no right 2 Bradf. Sur. 304 ; Miinsey v. Webster, to the administration except by the prao- 24 N. H. 126 ; MuUanphy v. County Court] tice of the court. He is the appointee of 6 Missou. 563, As to the circumstances the court. And if circumstances showed held to render a person " evidently unsuit- that the creditor was not a proper person, able," see Stearns v. Fiske 18 Pick. 24, non constat that the court might not ap- The judge of probate cannot pass over the point another. 2 Curt, 850, [Under the next of kin of the intestate, although they statute of Massachusetts, if the widow and do not live in the county or are not com- next of kin are incompetent, or evidently petent or suitable for the trust, and ap- unsuitable for the discharge of the trust, point a stranger, before the expiration of or if they neglect without sufficient cause, thirty days from the death of the intes- [440] CH. II. § I.J TO WHOM THEY SHOULD BE GRANTED. 507 be paid his debt until representation to the deceased is made ; (A) and therefore administration is only granted to him, fail- Adminis- ing every other representative, (i) So letters of adminis- granted to tration may be granted to the executors of a creditor. (/) " '^''^'^'""^ = The necessary course is, when a creditor applies for administra- tion, to issue a citation for the next of kin in particular citation by and all others in general, to accept or refuse letters of ^^^l^H °* administration, or show cause why administration should ''"' = not be granted to such creditor, (/c) In point of practice it is not uncommon, upon a decree issuing to show cause why administra- tion should be committed to A. B. a creditor, to substitute C. D. another creditor, on the day assigned for the appearance of the parties interested, and to suffer administration to pass to C. D. though not the person in whose name the decree originally went. (Z) tate, without citation or notice to the next of kin. Cobb v. Newcomb, 19 Pick. 336. In Arkansas, the preference given to the husband, wife, or distributees of an intes- tate, to take out administration, is limited to sixty days after the death of the intes- tate, and that of the creditors to ninety days, at the end of which time they all stand upon an equal footing with all other persons. Grantham- v. Williams, 1 Pike, 270. A creditor, as such, has no special claim to administration in Texas. Cain V. Haas, 18 Texas, 616. See, as to Vir- ginia, M'Candlish v. Hopkins, 6 Call, 208.] - (h) Elme v. Da Costa, 1 Phillim. 177. [In Bowdoin i/. Holland, 10 Cush. 17, it was held that administration may be granted in Massachusetts upon the estate situated there, of a person who died while residing in another state, although the deceased left u. will which has not been proved and allowed in the state of his domicil. Bigelow J. said : " If the will is never proved in the place of the testator's domicil, and is purposely withheld from probate, have creditors, in this state, no means of procuring administration on their deceased debtor's estate, and thereby reach- ing his property here? This point was substantially settled in Stevens v. Gaylord, 11 Mass. 256, 264. The courts there say, that if it should happen that administra- tion is never granted in the foreign state, the debts due here, under such circum- stances, to a deceased person, could never be collected, and the debts due from him to citizens of this state might remain un- paid." Gray J. in Pinney v. McGregory, 102 Mass. 192, 193. A citizen of another state, in which an intestate died, and ad- ministration has been granted, can cause administration to be taken out in Illinois . (if the intestate has left property there), a claim to be allowed, and real estate to be sold for its payment ; and it is not neces- sary to show that the personal property of the intestate in such other stale is ex- hausted. Rosenthal v. Remick, 44 111. 202.] (0 Webb V. Needham, 1 Add. 494 ; Graham v. Maclean, 2 Curt. 659; In the Goods of Waters, 2 Robert. 142. A cred- itor cannot deny an interest or oppose a will. Dabbs v. Chisman, 1 Phillim. 159; Elme a. Da Costa, 1 Phillim. 177; Men- zies V. Pulbrook, 2 Curt. 845 ; ante, 338 ; post, 443, 444. (j) Jones V. Beytagh, 3 Phillim. 635. [k) Whenever a party has a right to the administration, the court always re- quires that he should be cited, or consent. In the Goods of Barker, 1 Curt. 592 ; post, 448. (/) Maidman v. All persons in genera], 1 Phillim. 53; Law v. Campbell, 1 Hagg. 55 ; Talbot v. Andrews, 1 Hagg. 697 ; An- drews V. Murphy, 30 L. J., P. M. & A. 37. 508 OF GENERAL LETTERS OF ADMINISTRATION. ^ [PT. I. BK. V. The next of kin may appear to the citation, and will then be pre- ferred to the creditor ; (Z^) but if the next of kin has unduly delayed to take out administration (as where six months elapse from the death of the intestate), the creditor will be allowed his * costs, (m) If there are no next of kin, as in case of an intestate bastard, a ci- tation should issue to the crown ; that is, it should seem, the king's proctor must be cited, (w) Administration will not be granted to a creditor on a general citation on the Royal Exchange, without particular notice, when it is known where the party first entitled resides ; (o) and if he is abroad, the decree must be served on his agent, or an affidavit must be made that he has no agent in this country. ( p) On one occasion, (5) where administration to a person long dead was prayed by a creditor, and there had been no personal service on the next of kin (who had no known Rgent in this country), the court required full information as to the debt and the cause of the delay, and that notice should be given to the next of kin in the West Indies. And the judge (Sir J. Nicholl) said that he wished it to be considered as a general rule, that where a next of kin was as accessible as in this case, a notice should be sent to the partj'. (r) In cases where a general citation is suflBcient, the practice is to serve the decree on one of the pillars of the Royal. Exchange, and the decree itself is made returnable into court on a certain subse- quent day. (s) In a case where one of the parties entitled in dis- tribution was a private in the army, being with his regiment in India, the decree had been served as above, and the court was moved to dispense with the formality of awaiting the return of the process, on the ground that the necessity for a representation to the deceased was urgent, and that the party cited being in India, it was impossible he could appear ; but the court refused * the ap- pHcation, and observed that he might possibly return before the (l^) [In most cases a distributee, or one (0) Lindsdale v. Baloo, cited in Elme v. who takes an interest under the intestate Da Costa, 1 Phillim. 175. laws, will be preferred in the administra- (p) 3 Hngg. 194, 195, note (a). See, tion to a creditor. Haxall v. Lee, 2 Leigh, also, ante, 428. 267. Sec M'Candlish v. Hopkins, 6 Call, {q) Miller v. Washington, 3 Hagg. 277. 208.] (r) As to citing next of kin residing in (m) Cole V. Rea, 2 Phillim. 428. See Scotland, see King u. Gordon, 2 Gas. temp. Jones V. Beytagh, 3 Phillim. 635. Lee, 139. (n) Colvin v. Proctor General, 1 Hagg. (s) Hawke v. All persons in general, 2 92. Cas. temp. Lee, 263. [441] [442] CH. II. § I.] TO WHOM THEY SHOULD BE GRANTED. 509 time expired ; but the object was to give notice to his friends, and to any agent he might have in this country, (i) The court does sometimes grant administration to more cred- itors than one, but it prefers that one should be fixed one cred- upon : (m) and on the petition of the others, it will com- f'^.J^'t^ pel the one selected to enter into articles, to pay debts of ""* '■'^^^ *■ _ . upon equal degree, in equal proportions, without any prefer- terms: ence of his own. (a;) Before granting letters of administration to a creditor, the court always requires an affidavit as to the amount of the prop- affidavit of the amount prop- erty to be administered : unless where there has been a "j personal service of the usual citation on the parties en- erty, &c.: titled to the administration in the first instance. (?/) An affidavit is also necessary of the amount of the debt, and that the creditor has no other security ; (2) and also of the time the debt became due, in order that it may be seen that the debt is not barred by the statute of limitations, (a) The court will grant administration to a bond creditor, who has also a mortgage on the leasehold property; but if the creditor a grant were prayed by a mortgagee, of real property, gee:" there might be a reason why the administration should not pass to him, because it would give him a priority, and exclude simple conti-act creditors. (6) * A person who was joint assignee of the estate of a bankrupt with (t) Woolley V. Green, 3 Pliillim. 314. the estate. Succession of Beraad, 21 La. See In the Goods of Robinson, 3 Phil- Ann. 666.] lim. 512, as to the difference, in effect, of a [x) Fonblanque on Eq. bk. 4, pt. 2, c. 2, service viis et modis and a personal ser- s. 2, note (m) ; Toller, 106 ; 4 Burn E. L. vice. 366, Phillimore's ed. («) Harrison v. All persons in general, (y) Martineau u. Rede, 2 Add. 455 ; 2 Philiira. 249. See, as to the preference Briggs v. Roope, 29 L. J., P. M. & A. 96. of one creditor to another, by reason of (a) Aitkin v. Ford, 3 Hagg. 193. [See the superior nature, or larger amount of Thomas v. Buckuer, 2 Hill Ch. (S. Car.) the debt, Kearney v. Whittaker, 2 Cas. 499.] temp. Lee, 324 ; Carpenter v. Shelford, 2 (a) Rawlinson v. Burnell, 3 Sw. & Tr. Cas. temp. Lee, 502 ; Ernest v. Eustace, 479. [But as to the validity of the ob- Dea. & S. 271 ; [Cutlar v. Quince, 2 Hayw. jection to the rights of a creditor to admin- 60; Freeman v. Worrill,42 Geo. 401. As istration on the ground that his claim is to Alabama, see ante, 416, note (j). In barred by the statute of limitation, see Ex Louisiana, the first applicant among cred- parte Caig, T. U. P. Charlt. 159.] itors is entitled to the appointment of (i) Roxburgh w. Lambert, 2 Hagg. 557 ; administrator without reference to the but see now Etat. 3 & 4 W. 4, c. 104; amount or dignity of their claims again.st post, pt. it. bk. i. ch. ii. § i. [443] 510 OF GENERAL LETTERS OF ADMINISTBATION. [PT. I. BK. V. the deceased, out of which the latter had applied a sum of money who is not to his own use, for which he had not accounted at the time slderedT °^ ^^^ death, is not a creditor to the estate of the deceased creditor: gQ ^g ^g ijg entitled to pray administration to him. (c) On one occasion, (d) where a partner died leaving the partner- ship accounts unsettled, an eminent civilian, (e) before whom a case was laid by the direction of Sir John Leach V. C. gave his opinion that a person to whom one of the surviving partners had assigned his share of the profits of the partnership had not such an interest in the effects of the deceased partner as would entitle him to be considered a creditor, and in that character to cite the next of kin to accept or refuse administration of his effects ; but that the ecclesiastical court would grant a limited administration to a person nominated by him, for the purpose of substantiating pro- ceedings in chancery, on the refusal of the next of kin after citation; and upon showing the necessity for such a representation. It is the established practice of the court of probate to refuse to grant administration as creditor to a person who has bought up a debt after the death of the deceased. (/) But this practice is not inconsistent with a grant being made to a creditor of the party beneficially entitled to an interest in the es- tate of the deceased, who has assigned it, by way of mortgage or otherwise, to the parties seeking the grant. (^) * It has been held, that a surety who, after the death of the prin- cipal, pays off the debt, is entitled to be regarded as a creditor of the estate of the deceased, so as to be entitled to pray administra- tion to him. (A) In the case of Aitkin v. Ford, (i) administration, as to a cred- (c) Snape W.Webb, 2 Cas. temp. Lee, 411. ((/) In the Goods of Godfrey, 2 Sw. & (d) Cawthorn v. Chalie, 2 Sim. & Stu. Tr. 133 ; In the Goods of Coles, 3 Sw. & 129. Tr. 181 ; Downward v. Dickinson, ubi (e) Dr. Jenncr. supra; nor with a grant to the assignee of (/) Baynes t). Harrison, Dea.&Sw. 15; a creditor where he is assignee in bank- Depit V. Delerieleuse, 2 Sw. & Tr. 131 ; In ruptcy. lb. the Goods of Coles, 3 Sw. & Tr. 181 j S. C. (h) Williams v. Jukes, 34 L. J., P. M. & nomine Macnin v. Coles, 33 L. J., P. M. & A. 60. [One is a creditor who has a cause A. 175 ; Day v. Thompson, 2 Sw. & Tr. of action against the deceased, which by 169 ; Downward v. Dickinson, 3 Sw. & law survives. Shaw C. J. in Smith v. Tr. 564 ; [Pearce v. Castrix, 8 Jones Sherman, 4 Cush. 412 ; Mitchell o. Lunt, (Law), 71.] As to administration being 4 Mass. 654 ; Royce u. Burrell, 12 Mass. granted to an undertaker as a creditor for 395.] funeral expenses, see Newcome w. Beloe, (t) 3 Hagg. 193. L. R. 1 P. & D. 314. [444] CH. n. i-J TO WHOM THEY SHOULD BE GRANTED. 511 itor, was decreed to the mother of an intestate, who had been ad- vanced by her ; the father, though alive, having been divorced in the commissary court of Scotland, and married again. In Hudles- ton V. Hudleston, (y) administration to the effects of a wife who had lived with her husband until her death, was granted to an antenuptial creditor of the wife. (V) When a creditor administrator has been duly ap- next of kin . '' ' cannot oast pointed, the next of kin cannot, during his lifetime, take a creditor the administration from him ; but upon his death they trator dur- may come in, and claim administration de bonis non. (Z) '"^ 's i e; Although before administration granted a creditor cannot deny an interest or oppose a will, yet when he has obtained ^ creditor administration he has a right to maintain it against the g"o5J°of g^. executor or the next of kin ; and it is not to be revoked ministra- . . . , ^^on may on mere suggestion, (wi) And where administration has oppose an been granted to a creditor, and a will is afterwards pro- contest a duced, he is entitled to contest it in the same manner ^' ' that the next of kin might have done, without being subject to costs, (n) * For want as well of creditors as of next of kin desirous to take out administration, the court may grant it to any ^j^^^ ^^_ person at his discretion, (o') In a case where the brother ministra- ^ ^ ^ -, -, . tion may and only next of kin renounced, the court granted admm- be granted istration to the nephew, although he had no interest, (p) without" Or the court may, ex officio, grant to a stranger letters ad ■°'^''^'' = ij) 2 Robert. 424. (k) A decree had been personally served on the husband, but no appearance was given. {I) Skeffington v. White, 1 Hagg. 702, 703. (m) EIrae v. Da Costa, 1 Phillim. 173; Menzies v. Pulbrook, 2 Curt. 851 ; ante, 338. And he is not bound to bring in the administration till an admissible alle- gation has been brought in, either pro- pounding a will, or propounding an inter- est. Dabbs V. Chisman, 1 Phillim. 159, 160. (n) Norman v. Bourne, 1 Phillim. 160, note (c) to Dabbs v. Chisman, 2 Curt. 851; ante, 340. (o) See the judgment of Sir H. Jenner Fust, I Robert. 274, 275 ; In the Goods of Chanter, Davis v. Chanter, 14 Sim. 212 ; [Genl. Sts. Mass. u. 94, § 1, clause " Third ; " KedBeld L. & Pr. Sur. Cts. 160 ; Hoffman v. Gold, 8 Gill & J. 79 ; Thomp- son V. Hucket, 2 Hill ( S. Car.), 347.] The general rule seems to be that a grant of full letters of administration vrill never be made to any one who is not either a cred- itor or next of kin. But perhaps the court might make such a grant to a nom- minee of its own. And see stat. 20 & 21 Vict. c. 77, s. 73 ; post, 446. (p) In the Goods of Keane, 1 Hagg. 692. See, also, in the Goods of Blagrave, 2 Hagg. 83 ; In the Goods of Johnson, 2 Sw. & Tr. 595. But see In the Goods of Allen, 3 Sw. & Tr. 559. [445] 512 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. letters ad eolUgendvm bona defuncti, to gather up the goods of the dum. deceased, (p ) In a late case, where a sole next of kin refused to take administration, the court decreed letters of ad- ministration to a person who had been her agent, limited " to the collection of all the personal property of the deceased, and giving discharges for the debts which might have been due to the estate on the payment of the same, and doing what further might be necessary for the preservation of the property aforesaid, and to the safe keeping of the same, to abide the directions of the court." (gf) So, in a subsequent case, (r) the court, under special circumstances, made a grant to a creditor ad colligendum bona, limited to collect the personal estate of the deceased, to give re- ceipts for his debts on the payment of the same, and to renew the lease of his business premises, which would expire before a general grant could be made. But the court refused to include in the grant a power to dispose of the lease and good- will of the business, or a power to carry on the business, (s) Or the court * may take the goods of the deceased into its own hands, to pay the debts of the deceased in such order as an executor or adminis- trator ought to pay them ; but he, or the stranger who has letters ad colligendum, cannot sell them, without making themselves ex- ecutors of their own wrong. The court has only an authority, and no such power itself, and therefore it cannot give that power to any other, (i) The power of the court in making grants of administration, Vict c^ 77 ^"*^ ^° deciding to whom they should be granted, has s. 73. ' been much enlarged by the 73d section of the court of probate act, 1857 (20 & 21 Vict. c. 77). It is thereby enacted, that " where a person has died or shall die wholly intestate as to his personal estate, or leaving a will (;)!) [See Flora v. Mennice, 12 Ala. 836 ; the Goods of Earl, L. K. 1 P. & D. 450 ; Mootrie v. Hunt, 4 Bradf. Sur. 173 ; Law- In the Goods of Warren, L. R. 1 P. & D. rence v. Parsons, 27 How. Pr. 26 ; ante, 538 ; In the Goods of Grundy, L. K. 1 P. 275] & D. 459. In that case a joint grant of (y) In the Goods of Radnall, 2 Add. administration de bonis non was made 232. under the above section to a next of kin (r) In the Goods of Clarkington, 2 Sw. and to a person entitled in distribution, & Tr. 380. the next of kin consenting to the grant, (s) See, also. In the Goods of Wjxk- and there being special circumstances ren- hoff, 3 Sw. & Tr. 20, where a similar dering such joint grant convenient, grant was made under the 73d section of (() 11 Vin. Abr. 87, Exors. K. pi. 19. the court of probate act, 1857, supra. In [446] CH.II. § I.J TO WHOM THEY SHOULD BE GRANTED. 513 a will afiEecting personal estate, but without having ap- pointed an executor thereof willing and competent to take probate, or where the executor shall at the time of the death of such person be resident out of the United Kingdom of Great Britain and Ireland, and it shall ap- pear to the court to be necessary or convenient in any- such case by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the personal estate of the deceased, or of any part of such personal estate, other than the person who, if this act had not been passed, would by law have been entitled to a grant of administration of such personal estate, it shall not be obligatory upon the court to grant administration of the personal estate of such deceased person to the person who, if this act had not passed, would by law have been entitled to a grant thereof ; but it shall be lawful for the court, in its discretion, to appoint such person as the court shall think fit to be such administrator upon his giving such security (if any) as the * court shall direct, and every such administration may be limited as the court shall think fit." (m) when a person shall die intestate or without an executor willing and competent to take probate : or where the execu- tor is resi- dent out of the United Kingdom : if it shall appear to be neces- sary, the court niay appoint a person ad- ministrator who would not be oth- erwise entitled to the grant : on giving security, and lim- ited as the court shall think iit. («) The court will not make a grant under this section, unless there are special circumstances to justify it. In the Goods of White, Sw. & Tr. 457. In order to satisfy the court that it is " necessary and convenient " that the extraordinary power given by the section should be used by the court, a general statement that "it is nec- essary for the preservation of t^he personal estate and effects of the deceased that the grant should be made " is not sufficient. In the Goods of Cooke, 1 Sw. & Tr. 267 ; In the Goods of Bateman, L. R. 2 P. & D. 242. For cases where the court has thought that the circunA;ances warranted such a grant, see In the Goods of Jones, 1 Sw. & Tr. 13 ; la the Goods of Roberts, 1 Sw. & Tr. 64 ; In the Goods of Burrell, 1 Sw. & Tr. 64 ; In the Goods of Drink- water, 2 Sw. & Tr. 611 ; In the Goods of Sawtell, 2 Sw. & Tr. 448 ; In the Goods of Peck, 2 Sw. & Tr. 506; In the Goods VOL. I. 33 of Smith, 2 Sw. & Tr. 508 ; In the Goods of Hagger, 3 Sw. & Tr. 65 ; In the Goods of Findlay, 3 Sw. & Tr. 264 ; In the Goods of Fraser, L. R. 1 P. & D. 327 ; In the Goods of Cooper, L. R. 2 P. & D. 21 ; In the Goods of Richardson, L. R. 2 P. & D. 242 ; In the Goods of Llanwarne, L. R. 1 P. & 13. 306. The court will not grant administration under this section to a per- son entitled to a grant in another char- acter, e. g. as a creditor. In the Goods of Fairweather, 2 Sw. & Tr. 588; Teague v. Wharton, L. R. 2 P. & D. 360. In Far- rell V. Brownbill, 3 Sw. & Tr. 467, the court granted administration under this section, with the consent of all parties in- terested, to their nominee, who took no interest in the property himself. The sec- tion is wholly inapplicable where there is no absence of persons entitled to adminis- tration and no insolvency. It would then be a mere arbitrary selection on the part [447] 514 OF GENERAL LETTERS OF ADMINISTRATION. [PT. I. BK. V. By rule 31, P. R. (Non-contentious Business), " whenever the Rule 31, court, under sect. 73, appoints an administrator other foiuentfoM *^^" the person who, prior to the court of probate act, Business). 1859, would have been entitled to the grant, the same is to be made plainly to appear in the oath of the administrator, in the letters of administration and in the administration bond." In concluding this subject, it may be expedient to advert * to Citation or an established rule of the ecclesiastical court, viz, that wherever a party has a prior right to administer, the court requires that he should be cited or consent, before it will grant administration to any other person. And the rule will not be relaxed, notwithstanding the party who has the right has no interest in the property in respect of which the grant of administration is sought, (a;) But in cases where the court has a discretion, viz, in cases where the party entitled in priority is so entitled by the practice of the court, and not by statute, the court will sometimes dispense with the citation or consent of the party having the prior claim. («/) consent of party hav- ing a prior right requi- site before adminis- tration granted to another. of the court. Haynes v. Mathews, 1 Sw. & Tr. 460. The court will not exercise the power conferred on it by the above section by passing over a person entitled to a grant of administration in favor of a creditor when the fact of the insolvency of the intestate is disputed. Hawke v. Wed- derburne, L- R. 1 P. & D. 594. [x) In the Goods of Barlser, 1 Curt. 592 ; In the Goods of Currey, 5 Notes of Cas. 54. When the next of kin is of un- sound mind, the practice is that his next of kin must also be cited, in order that they may take administration for his use and benefit if they think proper. Win- deatt V. Sharland, L. E. 2 P. & D. 217. [Giving notice has been held indispensa- ble to the validity of a grant of adminis- tration, in such cases. Torrance v. Mc- Dougald, 12 Geo. 526 ; Bean v. Bumpus, 22 Maine, 549. But it cannot be pleaded in defence to an action by an administra- tor, that the proper parties were not cited before the probate court. That court ob- tains jurisdiction, not by the citations, but by the residence of the intestate within [448] the county. The validity of the letters cannot be attacked collaterally for want of citation. James v. Adams, 22 How. Pr. 409; post, 550, note (Ai).] (y) In the Goods of Kogerson, 2 Curt. 656 ; In the Goods of Southmead, 3 Curt. 28 ; In tbe Goods of Widger, 3 Curt. 55. The court granted administration to the sister of a bachelor intestate, upon a proxy of renunciation from the mother (a mar- ried woman) without her husband joining in it, she living separate from her hus- band, and all right to the estate and ef- fects of the deceased having been con- veyed to her under a deed of separation. In the Goods of Hardinge, 2 Curt. 640. [Where several are equally entitled to ad- ministration, either may be appointed without citing the others. Peters v. Pub- lic Administrator, 1 Bradf. Sur. 200 ; Cobb V. Beardsley, 37 Barb. 192. In Maine notice is not required prior to the granting of administration on an intestate estate if it be granted " to the widow, hus- band, next of kin, or husband of the daughter of the deceased, or to two or CH. II. § II.] WHO ARE INCAPABLE OF BEING ADMINISTEATOES. 515 By rule 69, P. R. CNon-contentious Business), "Cita- Howcita- • , T 11 1 1 11 tionsareto tions are to be served personally when that can be done, be served. Personal service shall be effected by leaving a true copy Euie 69, p. of the citation with the party cited, and showing him the contentbus original, if required by him to do so." Business). By rule 70, " Citations and other instruments which cannot be personally served are to be served by the insertion of the same, or of an abstract thereof, settled and signed by one of the registrars, as an advertisement in such morning and even- ing London newspapers, and such local newspapers, and at such intervals as the judge or one of the registrars shall direct." (j/^) * SECTION II. Who are incapable of being Administrators. A widow, or next of kin who would otherwise be entitled, may be incapable of the office of administrator on account of some legal disqualification. It will be shown in a subsequent part of this treatise, to whom, upon such an event, the administration is to be committed. Qy"^^ The incapacities of an administrator not only comprise those persons who have already been mentioned as disqualified for the office of executor, (z) but extend to attainder of treason or fel- ony, (a) or other lawful disability, (6) outlawry, (c) and bank- ruptcy, (c?) But it is no incapacity to be an administrator that the next of kin is an alien, (e) more of them." Bean v. Bumpus, 22 ministration to the lawful friends of the Maine, 549.] deceased. [It is no objection to the grant (yi) [The fact that an administrator of letters of administration to the daughter gave public notice of his appointment may of an intestate in Maryland, that she is a be proved by oral evidence, as well as by nun in a convent in the District of Colum- an affidavit filed and recorded pursuant to bia. Smith v. Young, 5 Gill, 197.] the statute in Massachusetts. Henry v. (c) 1 Roll. Abr. 90S ; Bac. Abr. Exors. Estes, 13 Gray, 336.] G.; Toller, 93. (/) Seej30s«,pt. I. bk. v. ch. III. §Ti. (rf) Hills u. Mills, 1 Salk. 36; Com. \z) See ante, 237, 238. Dig. Admor. B. 6 ; ante, 427 ; [Corn- (a) But now, since the abolition of for- propst's Appeal, 33 Penn. St. 537.] feiture of a felon's property (33 & 34 Vict. (c) Com. Dig. Admor. B. 6. Upon c. 23), it would seem that a felon can be this subject, see ante, 229, [note (k). The an administrator. statute of New York provides that " no (b) Hensloe's case, 9 Co. 39 b. Eor the letters of administration shall be granted statute binds the ordinary to grant ad- to a person convicted of an infamous crime, [449] 616 WHO AKE INCAPABLE OF BEING ADMINISTRATOES. [PT. I. BK. V. If the next of kin be a minor, administration must be granted J , jj to another person during his minority ; (e^) which spe- cies of administration will hereafter be considered sepa- rately. (/) But on one occasion, administration, limited to the receipts of dividends in the English funds, was granted by Sir John NichoU to a minor residuary legatee, the wife of a minor, both subjects of and resident in Portugal, on a certificate being produced that by the law of Portugal she was entitled. (^) * However, in a subsequent case. Sir C. Cresswell refused to grant administration to a minor, though by the law of the country where the deceased was domiciled the minor was entitled to the grant, and that learned judge appeared to be of opinion, that the court ought not to follow the practice of the court of domicil, where it was in contradiction to the English law, according to which the minor could not take upon himself the liabilities which the law casts upon an administrator — for instance, he could not execute a bond. (A) nor to any one incapable by law of mak- ing a contract, nor to a person not a citi- zen of the United States, unless such per- son reside within the state, nor to any one who is under twenty-one years of age, nor to any person who shall be judged incom- petent by the surrogate to execute the duties of such trust, by reason of drunk- enness, improvidence, or want of under- standing." 2 R. S. 75, § 32, as amended by Laws, 1830, c. 320, § 18. That a pro- fessional gambler is prima facie disqualified by reason of improvidence, see M'Mahon V. Harrison, 10 Barb. 6.59 ; Harrison v. M'Mahon, 1 Bradf. Sur. 283 ; M'Mahon V. Harrison, 6 N. Y. 443. What condition of drunkenness is sufficient ground of ob- jection under the above statute, see Elmer V. Kechele, .5 N. Y. Sur. 472 ; Kechele's case, 1 Tuck. (N. Y.) Sur. 52. See, as to Pennsylvania, ante, 235, note (q). As to the effect of immoral habits or offences of moral turpitude, see Shil ton's case, 1 Tuck. (N. Y.) Sur. 73 ; Berry v. Hamilton, 12 B. Mon. 191 ; ante, 238, note (/) ; Coope V. Lowerre, 1 Barb. Ch. 45. As to the de- gree of improvidence sufficient to raise the objection under the above act, see Coope v. Lowerre, 1 Barb. Ch. 45 ; it refers to such [450] habits of mind and body as render a man generally, and under all ordinary circum- stances, unfit to serve. Emerson v. Bow- ers, 14 N. Y. 449 ; Shilton's case, 1 Tuck. (N. Y.) Sur. 7;3. A person who cannot write, nor read writing, and has no expe- rience in keeping accounts, or in settling estates, is held to be incompetent to act as administrator within the meaning of the North Carolina statute respecting admin- istrations. Stephenson v. Stephenson, 4 Jones (Law), 472. But in Maryland, the inability of the wife to read or write does not disqualify her from acting as admin- istratrix of her husband's estate. Nusz v. Grove, 27 Md. 391. See, also, Gregg v. Wilson, 24 Ind. 227 ; Estate of Pacheco, 23 Ala. 476.] (el) [An infant cannot lawfully be ap- pointed administrator, and such an ap- pointment may be revoked by the judge of probate by whom it was made ; but such administrator will be compelled to account for moneys received by him after becoming of age. Carow v. Mowatt, 2 Edw. Ch. 57.] (/) Post, pt. 1. bk. V. ch. HI. § III. (g) In the Goods of the Countess of Da Cunha, 1 Hagg. 237. (A) In the Goods of the Duchess of Or- OH. n. § II.] WHO ARE INCAPABLE OF BEING ADMINISTRATORS. 617 Coverture is no incapacity for the office of administrator, (h}^ Therefore, if a feme covert be next of kin to the intes- pema tate, administration shall be granted to her. (J) But she '''^^'^^^ cannot take administration without the consent of her husband, (Jc) inasmuch, among other reasons, as he is required to enter into the administration bond, which she is incapable of doing, (/c^) Yet if it can be shown that the husband is abroad, or otherwise incompe- tent, a stranger may join in the security in his stead. (V) In either case the administration is committed to her alone, and not to her jointly with her husband ; otherwise, if he should survive her, he would be administrator, contrary to the meaning of the act. (m) In Da Rosa v. De Pinna, (n) a married woman prayed admin- istration to her mother and sister, and was opposed by another sister. The judge of the prerogative decreed administration to pass under seal to the married woman, who was sworn administra- trix. The sister appealed, and in the * delegates the married woman gave a proxy to renounce her right to the administration, in order to prejudice her husband; the husband intervened, and prayed that her proxy might be rejected. The court was of opinion, that on decreeing the administration to the wife, an. interest was vested in her husband which she could not by any subsequent act deprive him of, and therefore rejected her proxy of renunciation. leans, 1 Sw. & Tr. 253 ; [Carow v. Mowatt, which case a motion for administration 2 Edw. Ch. 57 ; Collins v. Spears, 1 Miss, with a will annexed to the attorney of a (Walk.) 310.] residuary legatee, a married woman, upon (h^) [Note (a") below; anfe, 232, note (c). her proxy alone, her husband refusing to But in Georgia a, feme covert is disqualified join, was rejected. by statute. See Leverett v. Dismukes, 10 (Ic^) [English v. McNair, 34 Ala. 40. Geo. 98. And see Kavanaugh v. Thomp- This difficulty is obviated in Massachu- son, 16 Ala. 817.] setts by statute 1869, c. 409.] (i) Com. Dig. Admor. B. 6 ; lb. Ad- (/) Toller, 91. mor. D. [By a recent statute of New (m) Anon. Style, 74 ; S. C. semble, by York (1867, c. 782, § 2) married women the name of Wood v. Brown, Aleyn, 36 ; are rendered competent in that state to Toller, 91 ; [Stewart's Appeal, 56 Maine, receive letters of administration the same 302.] If it were committed to them as if sole ; so in Massachusetts, by St. jointly during the coverture, it might per- 1874, t. 184, § 4; ante,. 232, note (c). In haps be good, because, if committed to Maryland, a married woman may act as the wife alone, the husband for such period administratrix or executrix. Binnerman may act in the administration with or with- V. Weaver, 8 Md. 517. As to Pennsylva- out her assent. Aleyn, 36. nia, see Gyger's Estate, 65 Penn. St. 311.] (n) 2 Cas. temp. Lee, 390. See, also, (k) [See statutesof Massachusetts, 1869, Haynes v. Matthews, 1 Sw. & Tr. 460 ; 0.409; 1874, c. 184, § 5; ante, 232, note ante, 4:25. (c).] See Bubbers v. Harby, 3 Curt. 50, in [451] 518 OF GRANTING ADMINISTRATION. [PT. I. BK. V. SECTION III. Of the Mode of granting Letters of Administration, and the Practice relating thereto, and Form thereof. In pursuance of the authority conferred by the court of probate p (.^ act, 1857, sect. 30, (o) a great many rules, orders, and to plants instructions as to grants of letters of administration of letters of admin- were made in the year 1862, for the regulation of the practice and of the fees of the court, in respect both of contentious and non-contentious business, and the guidance both of the principal and district registrars. They run to so great a length that it would be impracticable to insert them in a treatise such as this. It is, therefore, thought better merely to refer the reader for them to the books of practice, (j?) But inasmuch as these " or- ders, rules, and instructions " are in fact in a great measure founded on the old practice of the prerogative court as it stood at the time of the passing of the act, and the practice of the court of probate, subject to the rules and orders (by sect. 29 of the court of probate act, 1857), (^q) is generally to be according to the then present practice of the prerogative court, it is thought ad- visable to retain all the statements contained in this and the pre- ceding and some of * the following sections of the former editions of this work as to the then established practice of that court. Administration is generally granted by writing under seal, (g'^) By what It may also be committed by entry in the registry, with- or^form^" out letters sub sigillo ; but it cannot be granted by parol, (r) Form. '^^^ following is to be the form of the grant to a next of kin : (o) See ante, 323. (r) Anon. Show. 408, 409 ; Godolph. (p) Coote's Practice; Dodd & Brooke's pt. 2, c. 30, s. 5 ; Toller, 119. [The pos- Practice. Some further rules, relating session of letters of administration by the principally to pleas to declarations pro- person to whom they purport to be granted pounding wills, were made and issued (to is pnwia/acie evidence of delivery. M'Nair take effect on and after 11 January, 1866). t>. Dodge, 7 Missou. 404; Hensely w. Dodge, (}) See ante, 323. 7 Missou. 479.] (?i) [See Tuck v. Boone, 8 Gill, 187 ; Post V. Caulk, 3 Missou. 35.] [452] CH. II. § III.J OF THE MODE OF GBANTING. 519 " 111 her Majesty's Court of Probate. " The Principal Registry. " Be it known that on the day of , 18 , letters of administration of all and singular the personal estate and effects of A. B., late of , deceased, who died on , (s) 18 , at intestate, were granted by her majesty's court of probate to C. D., the lawful widow and relict [or as the case may he'] of the said intestate, she having been first sworn well and faithfully to admin- ister the same, by paying the just debts of the said intestate, and distributing the residue of his estate and effects according to law, and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whensoever required by law so to do. " (Signed) E. F. (s^) " Registrar." By a modern regulation of the prerogative court of Canterbury, where letters of administration were applied for after the Time of . granting expiration of five years from the death of the intestate, letters. the delay must have been satisfactorily accounted for by an affi- davit made by the administrator or other competent person, (t) And now by rule 45, P. R. (Non-contentious Business), " In every case where probate or administration is for the first time applied (s) The time of the death was required testator or intestate. Genl. Sts. c. 94, s. 3. to form part of the oath, and to be in- The grant of oaginal administration after serted in the margin of the grant, by a the expiration of that period is a nullity, rule of the prerogative court of Canter- Wales v. Willard, 2 Mass. 120; Jochum- bury. See the reason, ante, 385, note (6). sen u. Willard-, 3 Allen, 87, 90. But ad- Is') [See Post V. Caulk, 3 Missou. 35 ; ministration de bonis non may be granted Witsel V. Pierce, 22 Geo. 112; Farley v. after the expiration of twenty years from McConncU, 7 Lansing, 428. As to ap- the death of the former administrator, pointment, and certificate of it, see Tuck- Bancroft v. Andrews, 6 Cush. 493 ; Kemp- er V. Harris, 13 Geo. 1 ; Witsel v. Pierce, ton v. Swift, 2 Met. 70. To the same 22 Geo. 112; Haskins v. Miller, 2 Dev. effect is Holmes, petitioner, 33 Maine, (Law) 360. In Missouri the order of the 577. For the limitation in Tennessee, see court is a sufficient appointment of an ad- Townsend v. Townsend, 4 Coldw. 70, the ministrator, without any formal letters, same as to letters testamentary and of ad- if the party gives the bond and takes the ministration. As to Texas, see Cochran oath required by law. State v. Price, 21 v. Thompson, 18 Texas, 652 ; Lloyd o. Missou. 434.] Mason, '38 Texas, 212. In Alabama an (t) Gwyne on Probate and Legacy Du- administrator cannot be appointed within ties, p. 10. See In the Goods of Darling, fifteen days after the death is known. 3 Hagg. 561 ; ante, 385, note (6). [In Curtis v. Williams, 33 Ala. 570 ; Curtis Massachusetts, administration, except in v. Burt, 34 Ala. 729. As to the liability special cases, cannot be originally granted of sureties on a bond given by an admin- after twenty years from the death of the istrator upon a grant to him of original 520 OP THE MODE OF GRANTING. [PT. I. BK. V. for after the lapse of three years from the death * of the deceased, the reason of the delay is to be certified to the registrars, and should the certificate be unsatisfactory, the registrars are to require such proof of the alleged cause of delay as they may see fit." In the case of a recent death, if a party swears that he is one of the next of kin, the grant will issue without inquiry as to the knowledge of the other next of kin. (m) The practice of the prerogative court was, and of the court of probate (by rule 44, P. R. Non-contentious Business) is, that let- ters of administration shall not issu.e until after the expiration of fourteen days from the death of the intestate ; unless, for special cause (as that the goods would otherwise perish, or the like), the judge or two of the registrars shall think fit to order them sooner. («) Where a party entitled to the grant of administration has re- Retracting nounced, such renunciation may be retracted before the renuncia- - . . . , tion. administration has passed the seal, (i/) The oath to be made by the administrator, on his taking out letters of administration, is to be in this form : " In her Majesty's Court of Probate. " The Principal Registry. " In the goods of A. B., deceased. "I, C. D., of , in the county of , make oath and say lor solemnly, sincerely, and truly declare and afiirm, accord- ing to the form of words prescribed by the statute applicable to the particular case], that A. B., late of , deceased, died in- testate, (z) a bachelor, without parent, * brother or sister, uncle or aunt, nephew or niece [or as the case may Je], and that I am the lawful cousin german {or as the case may he\ that I will faithfully letters of administration after the time (2) It is sufficient if the administrator prescribed by statute, see Foster v. Com- swears that the deceased made no will ex- monwealth, 35 Penn. St. 148.] cept as to real estate. O'Dwyer v. Geare, (u) 3 Hagg. 565. But see rule 28, P. 1 Sw. & Tr. 465. A party.having died R., ante, 425, 426, note (I). insane, leaving a will, which upon face of (x) 1 Ought. 323, tit. 219, s. 1, note (a), it exhibited marks of insanity, the court (y) "West V. Wilby, 3 Phillim. 379; granted administration of the effects of the [Casey v. Gardiner, 4 Bradf. Snr. 13.] deceased as dead intestate, bnt directed the See M'Donnell v. Prendergrast, 3 Hagg. will to be deposited in the registry. In 212; [McClellan's Appeal, 16 Penn. St. the Goods of Bourget, 1 Curt. 591. See, 110, 116;] ante, 283, [417, note (0); also. Palmer w. Dent, 2 Robert. 284 ; Per- Stocksdale a. Conaway, 14 Md. 99 ; Estate ry v. Dyke, 1 Sw. & Tr. 12. ofKirtlan, 16 Cal. 161.] [453] [454] CH. II. § IV.] TO SEAMEN AND MARINES. 521 administer the personal estate and effects of the said deceased, by paying his just debts and distributing the residue of his said estate and effects according to law ; that I will exhibit a true and per- fect inventory of all and singular the said estate and effects, and render a just and true account thereof, whenever required by law so to do ; that the said deceased died at , on the day of , 18 ; (a) and that the whctle of the personal estate and effects of the said deceased does not amount in value to the sum of pounds, to the best of my knowledge, information, and belief. " (Signed) A. B. " Sworn at , on the day of , 18 . "Before me, " (Person authorized to administer oaths under the act)." The concluding part of this oath is in accordance with the stat. 55 Geo. 3, c. 184, s. 38 (the stamp act), by which it is enacted that no ecclesiastical person shall grant letters of administra- tion, without first receiving from the person applying for them, or some other competent person, an affidavit wJiether the estate and effects of the deceased, in respect of which administration is to be granted, are under the value of a certain sum to be therein specified, (a) , SECTION IV. Of Administration to the Effects of Intestate Seamen, Marines. and Soldiers. By stat. 11 Geo. 4 and 1 W. 4, c. 20, the statute ^^ q^^ ^ 55 Geo. 3, c. 60 is repealed. <=• ^O' By section 56, the wages, prize money, &c. of a petty officer, or seaman, or non-commissioned officer of marines, or Mode of * marine, dying intestate, are to be paid to his repre- a5^inj°t?a- sentatives, only upon administration obtained in the t'""'" nil" ■»•« 1 1 • t snficts 01 following manner ; (6) videlicet, the person claimmg intestate administration shall send a letter to the inspector, stat- &c. ' ing his abode, his relationship to the deceased, the names of the (a) Sieapost, pt. i. bk. vii. tard, and it is intended that such admin- (6) If an application is made for ad- istration should extend to the pay or prize ministration to be granted to the nominee money due to the deceased, the require- of the crown of the personal estate of a ments of this section must be attended to. seaman in the queen's service, as a has- In the Goods of Bevan, 11 Jur. N. S. 982. [455] 522 OF GRANTING ADMINISTRATION. [PT. I. BK. V. deceased and of the ship or ships to which he belonged, that he has been informed of the death, and requesting such directions as may enable him to procure administration, or to the like effect ; upon receipt whereof the inspector shall send by post, under cover, to the minister of the parish wherein the claimant shall reside, a form of petition, together with the requisite certificates, in blank, to be filled up as hereafter mentioned, and a letter pointing out the steps to be taken thereon ; and shall also send to the claimant a letter advising him of the forwarding of the said petition or paper as aforesaid, and pointing out the measures to be taken by him for substantiating his claim ; and, upon receipt of the said petition, the minister or curate shall examine him, the claimant, and also such two inhabitant householders of the parish as may be disposed to certify their personal knowledge of him, and their be- lief of his right to administer to the effects of the intestate, ac- cording to the degree of relationship set forth at the head of the petition ; and the minister or curate being satisfied of the truth of their answers, and having seen the claimant sign the application, and the two householders sign the certificate (which the minister is required to do), shall add thereto a description of the height, &c. of the claimant ; and, after the blanks in the petition, certificates, and description shall have been filled up, shall certify to the several particulars by subscribing his signature thereto, for which purposes the claimant and householders shall attend at such time and place as the minister * or curate shall appoint ; and the claimant shall pay to the minister or curate a fee of two shil- lings and sixpence ; and, the paper being completed according to the directions given, the minister shall return the same by post to the treasurer of the navy, London ; and, upon its receipt at the navy pay office, the inspector shall examine it, and, being satis- fied of the claim, he shall transmit to a proctor a certificate there of ; and in case the claimant shall not reside within the bills of mortality, the inspector shall at the same time inclose and send to the proctor a letter addressed to the minister and churchwardens or elders (as the case may be) of the claimant's panel, signifying the transmission of a commission (which the proctor is to obtain) for swearing the claimant as administrator, with the necessary in- structions for executing the same ; and the proctor shall, upon receipt thereof, take the requisite steps towards enabling the claim- ant to obtain administration, and shall, in the inspector's letter to [456] CH. II. § IV.] TO SEAMEN AND MARINES. 523 the minister, inclose the commission or other necessary instrument, with instructions for executing the same, and forward the same by- post, agreeably to the address put thereon by the inspector. Sect. 57 provides, that, in case the minister or curate shall reject any petition, he shall state his reasons for such Minister reiection on the petition, and forthwith return the same, ""ejecting •' -^ ' _ _ petition to to the treasurer of the navy ; and in case no applica- state his tion shall be made by the claimant, or no effectual steps taken by him to complete the petition and the certificates, within two calendar months from the date of the inspector's letter, the minister or curate shall return the petition to the treasurer of the navy, with his reason for doing so noted thereon. Sect. 63 enacts, that, when the executor or administrator shall die before he shall have received the wages, &c. payable Manner of , . , , • , , , 1 • , • , • , proceeding to his testator or mtestate, the mspector may investigate in case of the right of any person claiming payment of the same, &^^'ijying or to represent the person of such deceased petty of- J?g^°i'_^t*/ ficer, &c. ; and, being satisfied of such right, shall certify wages. the name and place of abode of such person upon the check or certificate, and * that in his judgment the claimant is the rightful representative of such deceased petty officer, &c. and entitled to receive whatever may remain due in respect of his services as aforesaid ; and thereupon, if the wages, &c. remaining unpaid shall appear to the inspector not to amount nor likely to amount to more than twenty pounds, the treasurer, or any prize agent, may pay to such person all wages, &c. so due or to become pay- able, without requiring fresh administration ; but if the same shall amount or appear to the said inspector to be likely to amount to more than that sum, then the same shall only be paid upon fresh letters of administration, to be obtained as before directed. Sect. 64, for preventing frauds by pretended creditors of de- ceased seamen and marines, enacts, that no letters of Adminis- administration shall be granted to any creditor of any to be deceased petty officer or seaman, &c. but that every such freditors of creditor shall receive the amount of his claim (if just) f™^_ out of the assets, or so far as the same will extend for rines. that purpose, when the just amount shall have been ascertained and approved in manner following : The creditor shall deliver to the inspector an account in writing, signed, stating the particu- lars of the demand and the place of his abode, and verified by [457] ; 524 OP GRANTING ADMINISTRATION. [PT. I. BK. V. oath or affirmation before a justice of the peace ; and, if any ap- plication for a certificate to obtain probate or administration shall be made, the inspector shall give notice to the applicant of the name and place of abode of the creditor, and the amount of the debt, and shall also cause notice to be given to the creditor of the place of abode of such applicant ; but if no such application shall have been made at the time of the delivery of the claim, the inspector shall proceed to investigate the account of such creditor, for which purpose he may require production of all books, accounts, &c. relating to his demand, and satisfactory evidence thereof ; and, if such creditor shall satisfy the inspector of the justice of the demand in part or in the whole, the same shall be allowed ; but if all books, &c. shall not be produced, or a suffi- cient reason assigned for not producing *the same, or if the inspector shall not be satisfied of the justice of the demand, he shall disallow the same ; and if such creditor shall be dissatisfied, he shall be at liberty to appeal against such decision to the said treasurer, who shall thereupon inquire into the same by the ex- amination of the parties and their witnesses upon oath, &c. and allow or disallow the claim, in part or in the whole, as to liim shall seem fit ; the decision of the treasurer to be final and con- clusive ; no claim to be admitted or allowed, unless made within two years after the death of the party, nor unless the same shall appear to have accrued within three years next before the death. Sect. 65 enacts, that if, within twelve calendar months from Creditor to the delivery of the claim, no application shall have been no execu- made by any person in the character of executor or ad- mlnistra*' ministrator, the creditor shall be entitled to receive so tors. much as shall have been allowed to be due to him out of the moneys payable in respect of the services of the deceased, so far as they will extend to satisfy the same ; and thereupon the inspector shall grant to the creditor a certificate of the allowance of such claim ; and so much of such wages as shall be sufficient to satisfy the claim so allowed shall be paid or remitted to the cred- itor : Provided that, if any prize money, &c. shall be due to the deceased, the same shall be payable to such creditor only as fol- lows : If the wages, &c. shall not be sufficient to discharge the claim, the proper officer in the navy pay office shall state at the foot of the certificate the amount paid to the creditor, and it shall not be lawful for the creditor to demand or receive from any per- . [458] CH. II. § IV.] TO SEAMEN AND MAEINES, AND SOLDIERS. 525 son any prize money, &c. due to the deceased, except as herein- after next mentioned ; (that is to say), such prize money, if in the hands of an agent, shall be paid over as in cases of unclaimed prize money, and the creditor, on the production of such certificate to the officer appointed to pay the prize money, shall be entitled to receive from him so much thereof as shall be sufficient to discharge his demand, and upon the same being satisfied, the in- spector shall retain * the certificate as a voucher or document of office : Provided also, that if there shall be more creditors than one, they shall be satisfied according to the priority of the allow- ance of their respective claims, but so as not to deprive any cred- itor of any priority he may by law be entitled to by reason of any specialty, provided notice in writing of the particulars of such specialty shall have been given to the treasurer of the navy in due time. The remaining provisions of the statutes 11 Geo 4 and 1 W. 4, c. 20, together with those of the stat. 2 & 3 W. 4, c. 40, and the stat. 4 & 5 W. 4, c. 25, respecting the administration of the effects of intestate seamen and marines, will be found in the previous chapter, relating to the probate of the wills of such per- sons, (e) By stat. 11 Geo. 4 and 1 W. 4, c. 41, s. 5, the commissioners of the Chelsea Hospital with respect to pension or prize ^^ ^ money, and the secretary at war, of his own proper au- & i w. 4, thority with respect to pay, may authorize the agent for pensions, or other proper officer charged with the pay- fx^eiSng ment thereof, to pay to any person or persons who shall g^g^'^^f^" prove him, her, or themselves, to the satisfaction of such pensions commissioners, with respect to pension and prize money, soldiers or of the secretary at war, with respect to pay, to be the paid with- next of kin or legal representative, or otherwise legally "gtrati^or entitled to any pension, or prize money, or pay due to probate. any deceased officer, non-commissioned officer, &c. such pension, &c. provided the same does not exceed 501. although no adminis- tration or probate shall have been obtained. By stat. 26 & 27 Vict. c. 57, s. 3, this section is repealed except as to pension or prize money, and special provisions are f^^y\^^ f made by sect. 15 for payment of the residue of the estate 67. (c) Ante, 394 et seq. [459] 626 OP GRANTING ADMINISTRATION. [PT. I. BK. V. of officers and soldiers where it does not exceed lOOZ. without any representation being taken out to them. 2 & 3 w. By stat. 2 & 3 W. 4, c. 53, s. 19, provisions are made Prize as to the payment of prize money to the representatives deceased ^^ deceased soldiers. soldiers. * ^jj^ j^y g_ 25^ the Commissioners of Chelsea Hospital The com- are empowered to authorize their treasurer or deputy missioners ^ i i n of Chelsea treasurer to pay to any person or persons who shall prove may au- him, her, or themselves to be the next of kin or legal payment ^ representative or otherwise entitled to any share or prize not^ex-^^ money belonging to any deceased officer, &c. any such Deeding share not exceeding 501. although no administration or of kin, &c. probate shall have been obtained. adminis- By s. 26 it is enacted, that, in all cases of claim for CiainTof P^'i^e money made by the next of kin of foreigners, who prize shall have been in the pay of his majesty as non-com- the next of missioned officers or soldiers, and who shall have died eigners to intestate, it shall be lawful, when such next of kin shall wkiiout reside out of his majesty's dominions, for the treasurer trlTion^' °^ deputy treasurer of the said hospital for the time be- &c. ing to pay such claims to such next of kin, or any per- son or persons duly authorized by such next of kin to receive the same, without the production of letters of administration ; and in all cases where such foreign non-commissioned officers or sol- diers shall have made wills, it shall be lawful for the treasurer or deputy treasurer, in like manner, to pay and satisfy such claims to the person or persons who, by inspection of the original will, or an authenticated copy thereof, shall appear to be entitled thereto, or to such person or persons as he, or she, or they shall duly au- thorize to receive the same, without requiring the probate. By s. 28, a creditor taking out administration is entitled only to the payment of the sum due to him at the time. [460] CH. ni. § I.] ADMINISTRATION CUM TESTAMENTO ANNEXO. 527 * CHAPTER THE THIRD. OP SPECIAL AND LIMITED ADMINISTRATIONS. SECTION I. Of Administration cum testamento annexo. Hitherto the subject has been confined to cases of complete intestacjf. But it often happens that the deceased, al- instances 1111 -n ■ 1 1 0^ quasi though he makes a wili, appoints no executor, or else the intestate. appointment fails; in either of which events, he is said to die quasi intestatus. (a) The appointment of executor fails, 1. Where the person appointed refuses to act. 2. Where the person ap- pointed dies before the testator, or before he has proved the v^^ill ; or where, from any of the causes specified in a former part of this work, he is incapable of acting. 3. Where the executor dies in- testate, after having proved the will, but before he has adminis- tered all the personal estate of the deceased. In all these cases, as well as where no executor is appointed, the court must grant an administration, which is called administration with the will an- nexed ; (b) and in the last instance it is also called administration (a) 2 Inst. 397. though not stated in the order. Peebles (6) See ante, bk. iii. ch. it. p. 254 et u. Watts, 9 Dana, 102. So in Virginia, seq. and notes ; [Suttle !■'. Turner, 8 Jones Thompson d. Meek, 7 Leigh, 419. The (Law), 403 ; Smith « T 1 . . , , . . . 1 neKt of kin decline it, such administration may be granted to a lega- \s entitled; tee (e) * or to a creditor ; (/) but notice must be given of i^in de- of the application of the legatee or creditor to the next may 'be of kin. (a) granted to Vt7 y a legatee or In all these cases, where a party has a prior title to a creditor, • nil- !••• upon no- grant, he must be cited before administration is com- tice. mitted to any other person. (A) Therefore the execu- -^j^^^ ^^^^_ tor, if there be one, must be cited before a grant to a ''""^ ^^^ , . , , necessary residuary legatee, («) a residuary legatee before a grant before to a specific legatee, and so on, through all the gradations testamento of priority. So if there is a testamentary disposition ™"^™' without an executor, it has been laid down that the party, in whose favor the disposition is made, must cite the next of kin, before he can have administration cum testamento annexo. (k) The court will grant administration, with the will annexed, to one of two universal legatees, a decree with intimation having (d) Kooystra u. Buyskes, 3 Phillim. 531. Administration with a will annexed, in which there was no executor nor resid- uary legatee, was decreed to two aunts of the deceased, legatees in the will, and daughters of the next of kin, a grand- mother, she being nearly ninety years of age, and incapable. In re Hinckley, 1 Hagg. 477. (c) If there be a legatee for life, and a legatee substituted, the practice is to pre- fer the former. But the court will depart from its practice when, were it to be fol- lowed, a question of construction of the will would, in effect, be determined, and will make such a grant as will leave the question open. Brown v. Nicholls, 2 Rob- ert. 399. (/) Kooystra v. Buyskes, 3 Phillim. 531 ; Snape v. Webb, 2 Cas. temp. Lee, 411. ig) 3 Phillim. 531 ; Com. Dig. Admin- istrator, B. 6. See, also, Woolley v. Green, 3 Phillim. 314. (A) In the Goods of Barker, I Curt. 592 ; ante, 448, note {x). (t) If there be two executors, and one alone has proved the will, power being reserved to the other, both the executors must be cited. In the Goods of Leach, Dea. & Sw. 294. See Le Briton v. Le Qnesne, 2 Cas. temp. Lee, 261, as to the citation of an executor who has already proved the will in a court out of the j uris- diction, in a case where administration is required by the residuary legatee, in order to recover a debt within the jurisdiction. {k) 3 Bao. Abr. 41, tit. Executors, E. 8. Accordingly, in a case where an applica- tion was made for a grant of adminis- tration with the will annexed, to the sole legatee, on an affidavit that the testator died possessed of no other property than that specifically described in the will. Sir Cresswell Cresswell held that the next of kin ought to have been cited, but appears to have given the applicant his option of taking administration limited to the prop- erty disposed of by the will. In the Goods of Watson, 1 Sw. & Tr. 110. But on a subsequent occasion when this case was cited, the learned judge said that it was an exceptional case, and that the general rule was against such a grant, which should not be made unless some very strong rea- son be given. In the Goods of Watts, 1 Sw. & Tr. 538. [467] 534 OF SPECIAL ADMINISTRATION. [PT. I. BK. V. issued in the name of the other, who is since * dead. (?) So ad- ministration, with the will annexed, in which there was no executor, may be granted to one of two legatees, a decree with intimation having issued in their joint names against a residuary legatee, (m) When the executor resides out of the jurisdiction, administra- Adminis- tion cum testamento annexo may be granted to another auo'rney''to person Under a letter of attorney from the executor for executor : jjjg ^gg ^nd benefit, (w) It should seem that a will thus proved by the attorney of the executor is the same thing as if . actually proved by himself. And, consequently, the chain of representation is not broken by his death, if he has himself appointed an executor, (o) Again, the letter of attorney it is revoc- ^^ revocable ; and when the executor revokes it and de- abie. sires probate, the court is bound to grant it to him. ( js) On one occasion, administration, with the will annexed, had „ ^ been granted for the use and benefit of the executor, quenceof then at sea, to his attorney. The executor having; re- the i-eturn ' ii. ■, ■ r i, of the ex- turned to England, and being desirous of probate, and the administration with the will annexed having been brought in by the attorney (with the usual affidavit, "that no action at law, or suit in equity, had been brought by or against him as administrator"), had been sworn as executor; and he prayed that the administration should be declared to have ceased and expired, and that probate should be granted to him. The application, in respect to the letters of administration, was ob- jected to in the registry, on the ground that in some similar cases the administration had been expressly revoked. In support of the motion, it was urged that the administration, having been rightly granted, ought not to be revoked. A revocation which was un- necessary might possibly be injurious; for it might render some of the administrator's acts * void ; and would certainly be incon- venient ; for the probate would be considered at the stamp office as an original, and consequently probate duty required to be paid as for an original grant, and the duty, already paid on the adminis- tration, could only be recovered upon a special application to the (l) Law V. Campbell, 1 Hagg. 55. (o) In the Goods of Bayard, I Eobert. (m) Pickering w. Pickering, 1 Hagg. 4S0. 768; S. C. 7 Notes of Cas. 117. See ante, 440. (p) Pipon v. Wallis, 1 Cas. temp. Lee, (n) See ante, 438. [See Texidor's Es- 402. tate, 2 Bradf. Sur. 105.1 [468] [469] CH. III. § I.] ADMINISTRATION CUM TESTAMENTO ANNEXO. 535 commissioners, supported by aflBdavit ; whereas, if the administra- tion were declared to have ceased and expired, the probate would pass at the stamp office upon a free stamp. The court (Sir John NichoU) declared the administration cum testamento annexo to have ceased and expired ; and directed that, in future, grants, durante absentid, to attorneys, should be limited " for the use and benefit of resident at , and until the executor (or the party entitled to the administration) should duly apply for, and obtain, probate or administration." (g*) On the death of the executor the letters of administration cease to be of any force ; and therefore the administrator can- Qg^^^. not make a good title, if he sells leasehold property of ^j^^^'^^fi' the deceased, unless he can warrant to the purchaser that tiie execu- the executor is alive, (r) It may here be observed, that a person who is entitled to pro- bate as executor cannot be allowed to take out adminis- Tiie exeou- tration cum testamento annexo (r^) (notwithstanding the allowed to inconvenient effect which the taking probate may in {^l^'jg^ra- some cases have, by reason of continuing the chain of tion mm ' '^ ° testamento representation to some other party whose executor the annexo. testator happens to be). For if a person be entitled to a grant in a superior character, the court will not make that grant to him in an inferior character, (s) Accordingly, by rule 50, a person P. R. (Non-contentious Business), " No person who re- tJJg'^'fjJ^Jin nounces probate of a will or * letters of administration of a superior ■*■ , character the personal estate and effects of a deceased person in one not to take character is to be allowed to take a representation to the ferbr. same deceased in another character." (t} ^^^^ ^^ The form of the grant of letters of administration lettersof . . . adminis- cum testamento annexo vanes from the grant of general tration cum letters of administration as follows : annexo. {i}) In the Goods of Cassidy, 4 Hagg. 360 ; "Webb ^. Kirby, 7 De G., M. & G. 381. As to the effect of the death of the executor, see Suwerkrop v. Day, 8 Ad. & El. 624 ; post, 510. (r) Webb «. Kirby, 7 De G., M. & G. 376, reversing the decision of the V. C, 3 Sm. & G. 333. See, also, Suwerkrop v. Day, 8 Ad. & El. 624; post, 510. (r') [But an executor, whose appoint- ment is avoided by his being an attesting witness, may, in Missouri, be appointed ad- ministrator with the will annexed. Mur- phy V. Murphy, 24 Missou. 526.] (s) In the Goods of Bullock, 1 Robert. 273 ; In the Goods of Richardson, 1 Sw. & Tr. 515; In the Goods of Morrison, 2 Sw. & Tr. 129 ; [ante, 286, note [k].] (() See In the Goods of Loftus, 3 Sw. & Tr. 307, as to the construction of this rule; [ante, 286, note {k).] [470] 636 OF SPECIAL ADMINISTRATION. [PT. I. BK. V. " In her Majesty's Court of Probate. " The Principal Registry. "Be it known, that A. B. late of in the county of , deceased, who died on the day jai , at , made and duly executed his last will and testament, [or will and codicils thereto] and did therein name [or did not therein name any] executor [_or as the case may he']. And be it further known, that on the day of 18 , letters of adminis- tration with the said will annexed of all and singular the personal estate and effects of the said deceased were granted by her majesty's court of probate to C. D. [insert the character in which the grant is taken'], he having been first sworn well and faithfully to administer the same by paying the just debts of the said deceased, and the legacies contained in his will [or will and codicils], and distributing the residue of his estate according to law, and to exhibit a true and perfect inventory of all and singular the said personal estate and effects, and to render a just and true account thereof whenever required by law so to do. " (Signed) E. F., (L. S.) " Registrar." («i) (*!) -[Letters of administration with the the will annexed. Ke Fisher, 15 Wis. 51 1. will annexed can be granted only by the A bond in the form usually given by the court of the county in which the will was general administrator of an intestate es- proved and letters testamentary granted, tate, and containing all the statute pro- Eyster's Estate, 5 Watts, 132. See People visions applicable to the administration of V. White, 11 111. 341. An administrator such an estate, is valid and sufficient to with the will annexed is subject to the bind an administrator with the will an- provisions of law applicable to other ad- nexed, and his sureties, to the faithful dis- ministrators, except so far as the distri- charge of his official duties, when given as bution of the estate is directed by will, the condition of his appointment to that Ex parte Brown, 2 Bradf. Sur. 22. As to office; although the condition of the bond the bond required of an executor with the recites, in describing the deceased, that he will annexed, in New York, see Ex parte died intestate, and it is provided in said Brown, 2 Bradf. Sur. 22. A special ad- bond that the principal obligor shall ad- ministrator who is appointed administrator minister the estate according to law. Judge with the will annexed, will be responsible of Probate i>. Claggett, 36 N. H. 381. See for the estate in his hands, as such special Hartzell v. Commonwealth, 42 Penn, St. administrator, until he has given the secu- 453. But see Small v. Commonwealth, 8 rity required of him as administrator with Penn. St. 101. See post, 654, note («;')■] CH. in. § II.J OF ADMINISTRATION DE BONIS NON. 537 SECTION II. Of Administration de bonis non. This subject may be treated with reference, 1st, to the death of an executor ; 2dly, to the death of an administrator. * 1. With respect to the consequences of the death of an execu- tor. (^2) If a sole executor happens to die, without hav- -^ Qf,ns&- ing proved the will, the executorship, as there has before J^'^^'l^^^"^ been occasion to observe, (u) is not transmissible to his of an executor, but is wholly determined, and administration cum testamento annexo must be committed to the person entitled, according to the rules pointed out in the preceding section. When the administration is granted under such circumstances, although the executor may have administered in part by disposing of the testator's effects, &c. yet the administration shall not be de bonis non administratis, but an immediate administration ; be- cause, although the acts done by the executor are good, (w) the administering is an act in pais, of which the court of probate can- not take notice, (w) If one of several executors dies before or after probate, no inter- est is transmissible to his own executor, but the whole represen- tation survives to his companion, (a;) Where such surviving ex- ecutor, or where a sole executor, dies after probate, having made a will, appointing his own executor, the entire representation of the original testator will be transmitted to him. («/) But where sole where such surviving executor, or sole executor, dies "ng "^ecii- after probate, intestate, then no interest is transmissible ^ft^f'^jg. to his own administrator ; (z) but administration of an- bate intes- 1-11 1 ■ • '**^' ^^"''^ other sort becomes necessary, which is called administra- must be tion de bonis non, that is, of the goods of the original tion de testator left unadministered by the former executor, (a) ""«"""• {fi) [See Finn v. Hempstead, 24 Ark. (y) Ante, 254, and note (6), 256. The 111 ; Re Pisher, 15 Wis. 511 ; post, 473, rule is the same, though the original pro- note (A:i), 474, note (o^) ; Genl. Sts. Mass. bate was limited. In the Goods of Beer, c. 101, § 1 ; atite, 254, note (6).] 2 Robert. 349. (m) Ante, 25.5, 310. (z) Ante, 254. (v) See ante, 303 (a) Ante, 254, and note (6) ; Tingrey v. {w) Wankford w. Wankford, 1 Salk. 308, Brown, 1 Bos. & Pull. 310; [Alexander by Holt C. J. ... Stewart, 8 Gill & J. 226.] (x) Ante, 256. [471] 538 OF SPECIAL ADMINISTRATION. [PT. I. BK. V. So if the original testator dies abroad, or in the colonies, and so where ^^^ executor proves the will there, and then dies, hav- the execu- jjjg appointed his own executor, who proves the latter points his * will in the probate court here, it has been held that own ex- ecutor i£ the executor of the executor does not represent the win"was"* first testator. But that in order to constitute such a Tntim™^^^ personal representative here, administration de bonis country: jj^^ must be obtained in the probate court in this coun- try. (6) Again, before the court of probate act (1857), 20 & 21 Vict. so where c. 77, if there were several executors, and one alone erai execu- proved the will, and the rest renounced, upon the death proves, of him who had proved, no interest was transmissible to remmnce*^' his executor ; but the representation survived to the co- andhewho executors, who might retract their former renunciation, has proved ' ° dies. and assume the executorship ; (c) but if they persisted in refusing to act, the sort of administration just mentioned be- came necessary. But now by the 79th section of that statute, " where any person Stat. 20 & after the commencement of this act renounces probate of 21 Vict. .... c. 77, s. 79. the will of which he is appointed executor or one of the executors, the right of such person, in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his effects shall and may, without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor." (c?) This administrator de bonis non will, when appointed,, be the Who is only representative of the party originally deceased, ((i^) adniinistra- Sucli administration will evidently be committed cum lonisnon testamento annexo, and will be granted to the person meniotn' ^^^^^^^^ according to the general principles ah-eady de- nexo. veloped in cases of administration cum testamento an- nexo. (dF) In many instances, it is obvious, he will be a different person from the representative of the deceased executor ; but if the executor were also beneficially residuary legatee, his represen- (i) Twyford v. Trail, 7 Sim. 92 ; ante, (rf') [Such an administrator takes his 290. See, also, In the Goods of Gajnor, title from the deceased, and not from the L. E. 1 P. & D. 723. former executor or administrator. Comm. (c) Arnold v. Blencowe, 1 Cox, 426; of Foreign JVlissions Appeal, 27 Conn. ante, 256, 285. 344.] (d) See ante, 286, 287. • (d^) [See Eussell v. Hoar, 3 Met. 187.] [472] CH. III. § II.] OF ADMINISTRATION DE BONIS NON. 539 tative * will likewise be entitled to the administration de bonis non to the original testator, (e) In a modern case, administration durante minoritate was in the first instance granted to the mother of an infant, a part residuary- legatee, on the renunciation of the executor. The infant died. By his death the administration ceased, and the mother became en- titled, as widow, to the lapsed residue jointly with another infant. Under these circumstances, administration de bonis non, with the will annexed, was decreed to her. (/) It has been said, upon the authority of Limmer v. Every, as re- ported by Croke, (^) that where an executor dies, hav- Adminis- ing appointed an executor, who is a minor, and an ad- ^'jjj';^™^^ ministrator durante minoritate is appointed, he has no notneces- . . . -^ -^ . , sary when authority to intermeddle with the effects of the original there is an testator, but an administration de bonis non must be tration du- 111 7'ante mi~ case IS reported by ^oritateot granted. (A) However, as the Leonard, (i) the point decided was merely that such an anexreu- administrator should sue as administrator of the first tes- executor. tator. And in a later case, (y) i: was held, on an application for a prohibition, that although an administrator of an executor is not an administrator to the first testator, yet an administrator durante minore cetate is in loco exeoutoris, and may be sued as the executor of an executor may. (A;) 2dly. With respect to the consequences of the death of an ad- ministrator, or of one entitled to administration, (/c ) It has al- (e) See ante, 464. (/) Akers v. Dupuy, 1 Hagg. 473. Iff) Cro. Eliz. 211. (h) 3 Bac. Abr. 13 Exors. B. 1 ; Tol- ler, 118. (i) 4 Leon. 58, nomine Limvert;. Evorie. (,/) Anon. 1 Freera. 288. {k} See, also, Norton v. Molineux, Hob. 246 ; and Mr. Srairke's note, in his edi- tion of Freeman, p. 288. (f) [Although administration shall not be originally granted in Massachusetts af- ter the expiration of twenty years from the death of the testator or intestate ex- cept in special cases, yet administration de bonis non may be granted after the expira- tion of twenty years from the death of the former administrator. Bancroft v. An- drews, 6 Cush. 493; Pinney v. McGreg- ory, 102 Mass. 190 ; Kempton v. Swift, 2 Met. 70; Holmes, petitioner, 33 Maine, .577. See Murphy v. Menard, 14 Texas, 62. A restriction upon administration de bonis non in this state Is, that it must appear to the judge of probate that there is personal estate to the amount of twenty dollars or upwards, or unpaid debts amounting to as much, or something remaining to be per- formed in execution of the will. Geul. Sts. t. 101, § 1 ; Pinney v. McGregory, 102. Mass. 186, 190; Chapin v. Hastings,' 2 Pick. 361. As to Alabama, see Watson V. Collins, 1 Ala. Sel. Gas. 515. The court in which the original administration was granted alone has jurisdiction to grant administration de bonis non. Ex parte Lyons, 2 Leigh, 761.] [473] 540 OF SPECIAL ADMINISTRATION. [PT. I. BK. V. quences of the death of an ad- ministra- tor, or of one entitled to adminis- tration : ready been shown, that if a party who, as next of kin to the 2. Conse- intestate at the time of his death, was entitled to ad- ministration, dies before letters of administration are obtained, his representative is entitled to the grant in preference * to one who has no beneficial interest in the effects, although he may have become next of kin at the time the grant is required. (?) Where administration has been granted to two and one dies, of one of the survivor will be sole administrator, (w) for it is not Ssti^*" like a letter of attorney to two, where by the death of tors: one, the authority ceases, but it is an office analogous to that of executor, which survives, (n) Upon the death of such ofasurviv- Surviving administrator, or of a sole administrator, in adm?nistra- order to effect a representation of the first intestate, the *"'• court, whether the administrator died testate or intes- tate, must appoint an administrator de bonis non ; (w^) for an ad- ministrator is merely the officer of the court, prescribed to it by act of parliament, in whom the deceased has reposed no trust ; and therefore, on the death of the administrator, no authority can be transmitted by him to his executor or administrator, but it results to the court to appoint another officer, (o) It remains to be considered who, upon the death of the administrator, is entitled to be appointed adminis- trator de bonis non to the original intestate, (o^) The ecclesiastical judges have on several occasions laid down, that in all that regards the obligation of the stat- utes of administration on the court, in the grant of ad- Who is en titled to adminis- tration de bonis non on the death of the orig- inal ad- ministra- tor: {I) Ante, 436, 437. (m) Hudson v. Hudson, Cas. temp. Talb. 127, decided by Lord Talbot, after hearing civilians. Eyre p. Lady Shafts- bury, 2 P. Wms. 121 ; Com. Dig. Admin- istrator, B. 7 ; Jacomb v. Harwood, 2 Ves. sen. 268. (n) Adam t. Buckland, 2 Vern. 514; 3 Bac. Abr. 56, tit. Executors, G. («') [Taylor «. Brooks, 4 Dev. & Bat. (Law) 139.] (o) 2 BI. Com. 506 ; [Carroll v. Counet, 2 J. J. Marsh. 195 ; Taylor v. Brooks, 4 Dev. & Bat. 139 ; Navigation Co. v. Green, 3 \> .434. To render a grant of admin- istration de bonis non valid, the office must [474] be vacant at the time, by the death, resig- nation, or removal of the preceding ad- ministrator. Eambo «. Wyatt, 32 Ala. 363 ; Matthews v. Douthitt, 27 Ala. 273.] (o^) [See Chandler v. Hudson, 11 Texas, 32. The statutes of Massachusetts pro- vide in such case that " the probate court shall grant letters of administration, with the will annexed or otherwise, as the case may require, to some suitable person to administer the goods and estate of the de- ceased not already administered." Genl. Sts. c. 101, § 1. For a construction of this provision, see Russell «. Hoar, 3 Met. 190, 191 J Wiggin v. Swett, 6 Met. 197, 198.1 CH. ni. § II.J OF ADMINISTRATION DE BONIS NON. 541 ministration no distinction exists between an original and a de bonis non administration, (p) And in Kindleside v. Cleaver, the common law judges delegates expressed the same opinion. (^) Accordingly, upon the death of an original * administrator, a person, who was next of kin at the time of the death of the intes- tate, has been regarded as entitled, under the statute of Hen. 8, to the de bonis non grant, in preference to the representative of the original administrator, or to the representative of any other next of kin at the time of the death ; and hence, in the case where a husband takes out administration to his wife, and dies, the spiritual courts for a long time considered themselves bound by the statute (in contravention of convenience, and of the general principle that the right of administration shall follow the right of property), to commit administration de bonis non of the wife, if required, to the next of kin of the wife at the time of her death, as having an absolute statutable right ; although the bene- ficial interest in her effects be in the representatives of the hus- band, (r) But the practice has lately been altered in this re- spect. And the rule now established, on the principle that the grant ought to follow the interest, is, that the administration will be granted to the representatives of the husband, unless it can be shown that the next of kin of the wife are entitled to the beneficial interest, (s) Again, it has been held that the statutes only regard the next of kin at the time of the death of the intestate, and not the next of kin at the time a second grant is wanted ; and therefore, when the next of kin, who were so at the time of the deceased, are dead, the court have power, independent of the statute, to grant admin- istration de bonis non, at their discretion, according to their own rules. (0 In the guidance of which discretion, the established principle is (as in the case of administration cum testamento an- nexo'), that if there are no peculiar circumstances, the administra^ [p) Dr. Betteswonh, in Kindleside v. next of Icin, on the ground of his having Cleaver, 1 Hagg. 34.5 ; S. C. 2 Hagg. Ap- no interest. See Young v. Pierce, 1 pendix, 169; Dr. Hay in Walton v. Jacob- Freem. 496 ; ante, 436. son, 1 Hagg. 346. (s) Fielder v. Hanger, 3 Hagg. 769 ; In (q) See 2 Hagg. Appendix, 170. the Goods of Pountney, 4 Hagg. 290 ; (r) Kindleside v. Cleaver, 1 Hagg. 345 ; [Partington v. Atty. Gen. L. R. 4 H. L. S. C. 2 Hagg. Appendix, 169. See ante, 100 ;] anfe, 413. 411,412. Yet instances may be found, (t) Cardale v. Harvey, 1 Cas. temp, where, notwithstanding the statute, the Lee, 179. court have denied administration to the [475] 542 OF SPECIAL ADMINISTRATION. [PT. I. BK. V. tion shall be * committed to him who has the greatest interest in Adminis- the effects of the original intestate, (m) Thus, in Sav- bonk nm age V. Blythe, (u) the intestate died, leaving a brother fhe"xeca- and several nephews and nieces. Administration was ceased'ad- granted to the brother, and at the end of the year he ministrator distributed, taking the securities of the deceased upon having the ° t n i • i • • i greatest in- himself. He afterwards died, leaving the securities due the effects, to the original deceased outstanding ; and having made a will, and appointed an executor. A decree was taken out against the nephews to show cause why administration de bonis non should not be granted to the executor of the brother administrator. The nephews appeared, and prayed administration as next of kin under the statute. But Sir Wm. Wynne held that the statutable right was confined to the next of kin at the time of the death, and granted the administration de bonis non to the executor of the deceased administrator, on the ground that the interest was clearly in him. In the subsequent case of Almes v. Almes, (x) the same judge again granted similar administration, under nearly the same circumstances, upon the same grounds ; and mentioned the case of Lovegrove v. Lewis, (jf) decided by Sir George Hay, and affirmed by the delegates, where the administration was granted to the executor of the original administrator, to the exclu- sion of those who were next of kin at the time of the grant, (z) So in the instance of administration de bonis non to the effects of the wife, after the death of the husband administrator, if the per- sons who, at the time of her death, were her next of kin, are dead, it has always been held that the court may exercise its discre- tion, (a) The proposition, however, that if all who were next of kin at the time of the death of the intestate are dead, then the represen- tative of such next of kin, being entitled to the * beneficial interest, is also entitled to administration de bonis non, must, it appears, be understood with this limitation, viz, that a person originally in distribution is preferred to the representative of the next of kin. (J) («) But the court is not obliged to grant (z) See, also, In the Goods of Middle- to the largest interest. 1 Cas. temp. Lee, ton, 2 Hagg. 60. 177- (a) By Sir John Nicholl, In the Goods («) 2 Hagg. Appendix, 150. of Gill, 1 Hagg. 344. (x) 2 Hagg. Appendix, 155. (6) See the Appendix to 2 Hagg. 157. (y) S. C. 2 Hagg. App. 152, note (a). But this rule, in the discretion of the court, [476] [477] CH. III. § II.J OF ADMINISTRATION DE BONIS NON. 543 It has already been observed, that upon the death of a creditor administrator, a party who was next of kin at the time ^j^ . . of the death of the intestate may come in and claim next of kin administration de bonis non. (e) And though all the grant ot next of kin at the time of the death are dead, it should trationde seem that no grant of administration de bonis non, how- *""** """■' ever limited in its object, can be obtained after the termination of the creditor administration, without citing those who are next of kin at the time the grant is required. Thus, in Skeffington v. White, (c?) the intestate died in 1790, leaving two sisters entitled in distribution. They renounced, and administration was decreed in 1791, to a creditor, who administered the estate till 1806, when he died. The sisters did not come in and take administra- tion de bonis non ; and from that time no further representation was taken out till 1827, when an administration de bonis non was granted, without citing the then next of kin (the son of one of the sisters, who were both dead), limited to assign a certain leasehold property of the deceased, not severed in his lifetime, but mort- gaged during the original creditor administration. In March, 1828, Sir Lumley Skeffington, the then next of kin, in whom all the beneficial interest in the deceased's estate was vested, obtained a decree to show cause why the latter administration should not be revoked, on the ground of his not having been cited when the lim- ited grant was made, and on a suggestion that such grant had been surreptitiously obtained, * and that there was a surplus belonging to the deceased's estate. Sir John NichoU thought the citation under the circumstances was not necessary, but that Sir Lumley was barred by time, by events, and by his own laches ; and that there was no ground for revoking the grant. However, on appeal to the delegates, the urt pronounced for the appellant, directed a monition to issue to call in the limited administration, and con- demned the respondent in costs, (e) The following is the prescribed form of a grant of letters de bonis non : may be varied by granting the administra- in a representative character. In the Goods tion to the next of kin. In the Goods of of Middleton, 2 Hagg. 61. Carr, L. K. 1 P. & D. 291. According to (c) Ante, 444. the general practice, a party having a di- (d) \ Hagg. 699. rect interest is preferred to those entitled (e) 2 Hagg. 626. L478] 544 OF SPECIAL ADMINISTRATION. [PT. I. BK. V. " In her Majesty's Court of Probate. " The Principal Registry. " Be it known, that A. B. late of , in the county of J, , , deceased, died on 18 , at , intestate, letters of and that since his death, to wit, in the month of , ad minis- tration de 18 , letters of administration of all and singular his personal estate and effects were committed and granted by to C D. [insert the court from which the grant issued, and the relationship or character of administrator'] (which letters of administration now remain of record in ), who, after taking such administration upon him, intermeddled in the per- sonal estate and effects of the said deceased, and afterwards died, to wit, on , leaving part thereof unadministered, and that on the day of , 18 , letters of administration of the said personal estate and effects so left unadministered (e^) were granted by her majesty's court of probate to , he having been first sworn well and faithfully to administer the same, by paying the just debts of the said intestate, and distributing the residue of his estate and effects according to law, (e^) and to ex- hibit a true and perfect inventory of the said personal estate and effects so left unadministered, and to render a just and true account thereof, whenever required by law so to do. " (Signed) E. F., " Registrar." (el) [Seepos*, 915, note (e).] and an administrator de bonis non of the (e2) [See Brattle u. Converse, 1 Root, testator has been appointed, who has no 174; Brattle v. Gustine, 1 Hoot, 425; funds except such as have been received Scott V. Fox, 14 Md. 388 ; Hendricks v. from the avails of real estate sold under Snodgrass, 1 Miss. (Walk.) 86. An ad- license from the judge of probate, the rem- ministrator de bonis non may properly be edy to obtain from these funds payment appointed even where the original admin- of the amount so found due to the execu- istrator has reduced all the assets of the tor is to cite in the administrator de bonis estate to money. Donaldson u. Eaborg, non to render his account, and to apply to 26 Md. 312. If an executor has made the judge of probate for an order to the payments on account of the estate of his administrator de bonis non to pay the ac- testator beyond the amount of funds in count ; and a refusal to comply with such his hands, and dies before reimbursing order would furnish cause of suit upon the himself, and the amount due has been as- bond of the administrator de bonis non. certained upon a settlement of his account Munroe v. Holmes, 13 Allen, 109.1 by his administrator in the probate court. CH. III. § III.J ADMINISTRATION DURANTE MINOEE jETATE. 645 * SECTION III. Of Limited Administrations. Besides the administrations already discussed, which extend to the whole personal estate of the deceased, and terminate only with the life of the grantee, it is competent to the court to grant limited administrations, which are confined to a particular extent of time, or to a specified subject-matter. It will be the object of the pres- ent and three following sections, to consider this species of grant by the probate court. By rule 29, P. R. " Limited administrations are not Kule 29, p. 1 ' , . , T , ^- Con- to be granted unless every person entitled to the gen- sent or ci- eral grant has consented or renounced, or has been cited persons en- and failed to appear, except under the direction of the genera" judge." S'^^"*- By rule 30, " No person entitled to a general grant of administration of the personal estate and efi^ects of the genera" deceased will be permitted to take a limited grant except sranf not LO LarCc SL under the direction of the judge." limited one. Administration durante minore cetate. If the person appointed sole executor, or he to whom, in case of intestacy, the right to administration has devolved under the statutes, be within age, a peculiar sort of administration must be granted, which is called an administration durante minore cetate. (e^) In the former case, it is obviously a species of administration cum testamento annexo. If there are several executors, and one of them is of full age, no administration of this kind ought to be granted ; because ifj^^^^ he who is of full age may execute the will. (/) * But essary: Rule 30. A person en- neo- (e') [Wallis u. Wallis, 1 Wins. (N. Twisden J.; 4BumE.L.384,Phillimore'3 Car.) 78. Provision is made for this case, ed. ; ante, 232. There are some authorities by statute, in Massachusetts, Genl. Sts. c. to the contrary. See Colborne v. Wright, 93, § 7. An executor during whose non- 2 Lev. 240; Bac. Abr. Executors, B. 1. age an administrator durante minore estate [In Massachusetts, where, besides the per- has been appointed, is a privy to such ad- son under age, there is another executor ministrator. BellJ. in Taylor v. Barron, who accepts the trust, the estate is to be 35 N. H. 493.] administered by such other executor until (/) Pigot & Gaacoigne's case, Brownl. the minor arrives at full age, when, upon 64; Foxwist v. Tremain, 1 Mod. 47, by giving bond, as required by law, he may VOL. I. 36 [479] [480] 546 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. it has been held differently in the case of several next of kin in equal degree, entitled under an intestacy. In Cartright's case, (^) the intestate died leaving four grandchildren, whereof one was of age and the other three were minors ; and the administration was contested betwixt her that was of age and the mother and guar- dian of the other three ; and this case was argued at Serjeant's Inn, before the two chief justices and the chief baron, et al. who granted it to the mother, as guardian to the three durante minore cetate ; though it was strongly urged, that she that was of age being ca- pable, and the others incapable, she ought to be preferred. But, on the other hand, it was laid down, that since the new statute 22 & 23 Car. 2, c. 10, which entitled them all to a distribution, the interest of the three preponderated, and therefore that was to b,e regarded ; and they compared it to the case of a residuary lega- tee who shall be preferred before the next of kin. (A) This sort of administration has been frequently held not to be within the statute of 21 Hen. 8, c. 5. And consequently, it is dis- cretionary in the court to grant it to such person as it shall think fit. (i) Thus, in the case of Rex v. Bettesworth, (k') a no manda- ^ ^ ' \ y mus lies to mandamus was moved for, to be directed to the judge of a particu- the prerogative court, to grant administration to one lar person, gjjji^jj^ during the minority of his two infant grandchil- dren. The judge had approved of him as a proper person, but in- sisted on his giving security to distribute the effects in equal pro- portions among the creditors. The court were of opinion that the judge had a discretionary power in granting administration du- rante minore cetate, and therefore that in this case he might insist upon reasonable or equitable terms, or otherwise refuse adminis- tration to the claimant. But they said if a mandamus had been moved for, * to grant administration generally, they would have granted it. (Z) be admitted as joiut executor with the for- ber's Appeal, 11 Penn. St. 162; McClel- mer. Genl. Sts/ c. 93, § 7.] lan's Appeal, 16 Penn. St. 116.] ig) 1 Freem. 258; ante, 426. {k) 1 Barnard. 370, 425; S. C. Fitzgib. (A) See ante, 426. 163 ; 2 Stra.' 892, by the name of Smith's (t) Briers v. Goddard, Hob. 250; case. Thomas v. Butler, Ventr. 219 ; West v. {I) The discretionary power of ■ the Willby, 3 Phillim. 379 ; [Rogers J. in spiritual court is also recognized in the Ellmaker'a Estate, 4 Watts, 34, 39. See statute 38 Geo. 3, c. 87, s. 6. See post, Pitcher v. Armat, 5 How. (Miss.) 288 ; 485. Williams's Appeal, 7 Penn. St. 260 ; Bei- [481] CH. III. § III.] ADMINISTRATION DURANTE MINORE ^TATE. 547 ministra- tion to the guardian ; distinction between infant and minor : In the exercise of this discretion it was the practice of Practice of the spiritual court to grant the administration to the uai court to guardian whom that court had a right by law to appoint srant ad- for a personal estate, (m) With respect to the appoint- ment of guardian a distinction exists in the court of pro- bate between an infant and a minor. The former is so denominated, if under seven years of age, the latter from seven to twenty-one. (w) The court ex officio assigns a guardian to an infant ; (o) the minor himself may nominate his guardian, who is then admitted in that character by the judge ; (^) but if the minor makes an improper choice, the court will control it. (jj[) According to the practice of the prerogative court, * the guardian- ship was granted to the next of kin of the child, unless sufficient objection to him was shown, (r) If a wife be the only next of kin, and a minor, she may elect her husband her guardian, to take the administration for her use and benefit, during her minority ; but the grant ceases on her coming of age, when a new administration may be committed to her. (s) (m) In the Goods of Weir, 2 Sw. & Tr. 451. See, also, Brotherton v. Harris, 2 Cas. temp. Lee, 131. In this case it was held that the guardian appointed by the ecclesiastical court was to be preferred to the guardian appointed by the court of chancery. But see note (70) to Co. Lit. 88 b, by Hargrave, in which the right of the ecclesiastical court to appoint a guar- dian for the personal estate is doubted. On a late occasion, administration, for the use and benefit of minor children of a Frenchman deceased, was granted to their guardian appointed by the French author- ities. In the Goods of Sartoris, 1 Curt. 910. It has lately been held that ■- testa- mentary guardian of minor children is en- titled to a grant of the administration for their use and benefit preferably to a guar- dian elected by the children. In the Goods of Morris, 2 Sw. & Tr. 360. The guardian of an infant, sole next of kin of an intestate, is entitled to take adminis- tration of his effects, in preference to cred- itors. John V. Bradbury, L. K. 1 P. & D. 243. As to giving justifying security in such a case, see lb. (n) Toller, 100. (o) Sir G. Lee was of opinion that he could not assign a guardian to an infant in ventre de sa mere. Walker v. Carless, 2 Cas. temp. Lee, .560. (p) Rich V. Chamberlayne, 1 Cas. temp. Lee, 134; Fawkner v. Jordan, 2 Cas. temp. Lee, 327 ; Ozeland v. Pole, Prer. Hill. T. 1787 ; 4 Burn E. L. 284, note (5), Tyrwhitt's ed. (q) % Cas. temp. Lee, 330. This is mentioned by Lee J. in Eex v. Bettes- worth, Fitzg. 164, Mich. 4 Geo. 2, as be- ing then the course of the spiritual court. (r) Toller, 100; In the Goods of Ewing, 1 Hagg. 381. But the court may, in its discretion, pass by the next of kin. In the Goods of Ewing, 1 Hagg. 381 ; post, 483, note (y) ; Quick v. Quick, 33 L. J., P. M. & A. 177. On one occasion a cred- itor was appointed guardian to minors (the only children of F. P.), who had no known relations, for the purpose of taking out administration to the estate of E. P., who had died intestate and insolvent. In the Goods of Peck, 1 Sw. & Tr. 141. (s) Toller, 92. [482] 548 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. But there are many instances where the court has granted the the guar- administration to persons not guardians of the minor, and times^'ex-" refused to grant it to the person nominated by them, eluded: Thus in Lovell & Brady v. Cox, (f) Lovell and Brady were appointed trustees by the deceased, and his heir, Anne Cox, was executrix and residuary legatee. She was a minor, and the father claimed the administration pendente minoritate. The court held that it had a discretionary power, refused it to him, and gave it to the trustees, (u) So the administration may be granted to creditors, in exclusion of the guardian of the minor, if the estate is insufficient to pay the debts. And in many other cases it has been laid down that the court is not bound by the choice of the minor, (y') Thus, where a grandfather, to whom, as the next of kin, the administration durante minoritate would in the ordinary course have passed, was turned * eighty, it was granted to an uncle, he giving full justifying security, (x) In Havers v. Havers, (y) Lord Hardwicke C. said that admin- istration durante minore cetate ought not to have been granted to a person who was very poor, though the guardian and next of kin of the infant. Won-c'n'' "^^^ °^^ practice above stated has been applied, and in tentious some respects varied, bv the rules P. R. CNon-contentious Business) x, ■ ^ , ,, •' ^ as to grants JLsusmess), as lollows : dians. By rule 33, " Grants of administration may be made Rule 33. to guardians of minors and infants for their use and ben- efit, and elections by minors of their next of kin or next friend, as the case may be, will be required ; but proxies accepting such guardianships and assignments of guardians to minors will be dis- pensed with." 34. " In cases of infants (i. e. under the age of seven years) not Rule 34. leaving a testamentary guardian, or a guardian appointed by the high court of chancery, a guardian must be as- signed by order of the judge, or of one of the registrars ; the registrar's order is to be founded on an affidavit, showing that the (t) Prerog. cited by Sir John NichoU in tee, in preference to the mother, whom the West V. Willby, 3 Phillim. 379. minor had chosen guardian. See, also, («) See, also, Appleby v. Appleby, 1 Hughes v. Ricards, 2 Cas. temp. Lee, 543. Cas. temp. Lee, 135, where administration («) West v. Willby, 3 Phillim. 374. cum testamento annexo was granted to a {x) In the Goods of Ewing, 1 Ha"-g. grandmother during the minority of an 381. executor, she being also testamentary trus- (y) Barnard. Chan. Cas 23 [483] CH. III. § III.J ADMINISTRATION DURANTE MINORE iETATE. 549 proposed guardian is either de facto next of kin of the infants, or that their next of kin d& facto has renounced his or her right to the guardianship, and is consenting to the assignment of the pro- posed guardian, and that such proposed guardian is ready to under- take the guardianship." (z) 35. " Wliere tliere are both minors and infants, the guardians elected by the minors may act for the infants without being specially assigned to them, by order of the judge or a registrar, provided that the object in view is to take a grant. If the object be to renounce a grant, the guardian must be spe- cially assigned to the infants by order of the judge or of a registrar." 36. " In all cases where grants of administration are to be * made for the use and benefit of minors or infants, the admin- „ , , ., . ^ , . , „ 1 I'ule 36. istrators are to exhibit a declaration on oath of the per- sonal estate and effects of the deceased, except when the effects are sworn under the value of twenty pounds, or when the administra- tors are the guardians appointed by the high court of chancery, or other competent court, or are the testamentary guardians of the minors or infants." In a modern case in the prerogative court, the residuary lega- tee was a minor, married to a husband who was also a Adminis- minor, both being subjects of, and resident in Portugal, tration But it appeared that the husband, by reason of his hold- a minor, a ing a commission in the army, and being married, by the entitled by law of Portugal, was considered of full age, and that by his own" her marriage, her disabihties, as a minor, ceased. Under '^''"n'l'y- these circumstances, administration with the will annexed, lim- ited to the receipt of certain dividends in the English funds, was granted to the wife, (a) Where an intestate left a widow and infant son, and adminis- tration was granted to the widow, who soon after became Adtninis- non compos, and the estate was small and unable to bear ing the in- the expense of a commission of lunacy, and there were "^l^^^ °* debts owing to it, which were in danger of being lost, if l^^^f'^^^' there was no person to receive them ; Sir George Lee, son. without revoking the administration granted to the widow, as- signed (upon the renunciation and consent of the grandmother) (2) See, farther, as to the appointment Cunha, 1 Hagg. 237. But see contra. In of guardian ad litem, Hancock 0. Peaty, the Goods of Orleans, 2 Sw. & Tr. 253 ; L. K. 1 P. & D. 335. ante, 450. (a) In the Goods of the Countess Da r484n 550 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. the infant's aunt to be his guardian, and granted administration to her also, for the use and benefit of the widow and infant, during the incapacity of the widow, and the minority of the infant, if the widow should not sooner recover her senses. And the learned judge directed the administration to be drawn up in a special form; reciting the above particulars. (6) It has already been pointed out (c) that formerly an infant ex- ecutor was considered capable of the ofiSce, on attaining ministra- *the age of seventeen. But now by statute 38 Geo. 3, rante mi- c. 87, s. 6, (c?) after reciting that inconvenience arose nore estate p .■ ■lj.j.'jjj. j j.i, £ i. x shall be de- from granting probate to infants under the age or twenty- termined. ^jjg^ jj. jg enacted, " That where an infant is sole execu- tor, administration with the will annexed shall be granted to the guardian of such infant, or to such other person as the spiritual court shall think fit, until such infant shall have attained the full age of twenty-one years, at which' period, and not before, pro- bate of the will shall be granted to him." And by the seventh section it is enacted, " That the person to whom such administration shall be granted shall have the same powers vested in him as an administrator now hath by virtue of an administration granted to him durante minor e cetate of the next of kin." Before this act there was a distinction between administration granted during the minority of an infant executor and an infant next of kin ; inasmuch as in the latter case the administration has always been held to continue in force till the next of kin attained the age of twenty-one. (e) It seems agreed, that if administration be granted during the minority of several infants, it determines upon the coming of age of any one of them. (/) Thus if there be * several infant exec- (6) 1 Cas. temp. Lee, 625. the other hand, comes in by the act of the (c) Ante, 231, note (u). party, and that he should be capable at {d) Extended to Ireland by 58 Geo. 3, seventeen was in conformity to other pro- C. 81, ss. 1, 2. visions of the spiritual law. Besides, the (e) i'reke v. Thomas, 1 Ld. Eaym. 667 ; statute of distributions requires adminis- 4 Burn B. L. 384, Phillimore's ed. The trators to give a bond, which minors are distinction was justified on the ground incapable of doing. A dictum of Lord that the authority of an administrator is Hardwicke's in Lee v. D'Aranda 3 Atk. derived from stat. 31 Edw. 3,c. 11, which 422, is at variance with this distinction; admits only of a legal construction, and but there seems to be some error in the therefore he must be of a legal age before report. he is competent ; while the executor, on {/) Touchst, 490 ; Bacon Abr. Exors [485] [486] CH. III. § III.] ADMINISTRATION DURANTE MINORE ^TATE. 551 utors, he who first attains the age of twenty-one shall prove the will, and may execute it. (^g') It was resolved, according to Lord Coke, by the justices of the common pleas in Prince's case, Qi) that if administration be com- mitted during the minority of an executrix, and she take husband of full age, then the administration shall cease. But this has since been doubted, in the case of Jones v. Lord Strafford, (i) where Lord King C. and Raymond C. J. strongly inclined against this opinion as reported in Prince's case, the same not being taken notice of by other contemporary reporters, as 2 And. 132, Cro. Eliz. 718, 719, and 3 Leon. 278, in all which books Prince's case is reported. Besides which it was extrajudicially expressed, the question in the case being only whether such a special administrator could assign over a term for years which belonged to the testator. And it is remarkable that the author of the office of executor, after mentioning the proposition as stated in Prince's case, proceeds, " Yet I do a little marvel at these opinions, considering that these things are managed in the spiritual court, and by that law (the law spiritual) which intermeddles not with the husband in the wife's case ; now by that law, and not our com- mon law, comes in this limit of seventeen years. And I have seen it otherwise reported, in and touching the last point." (/) If administration be granted during the minority of several in- fants, one of whom dies before he comes of age, this will not de- termine the administration. (Je) It seems to be clearly settled, says Chief Baron Gil- ^.<'*''« -^ •' 1 J ^ (yias : who tert, (V) * that if an administrator durante minore cetate shall have , . . n , , , , . it when the of an executor brmgs an action and recovers, and then nis minority is time determines, the executor may have scire facias (m) B. 3 ; Taylor v. Watts, 1 Preem. 425 ; Beamond .;. Long, Cro. Car. 227 ; Bear- S. C. nom. Joynes v. "Watt, T. Jones, 48 ; block u. Head, 2 Brownl. 83 ; Anon. 3 Keb. 607, 643 ; "Willy v. Poulton, Mose- Godb. 104; Hatton v. Mascue, 1 Keb. 750 ; ley, 99. Coke v. Hodges, 1 Vern. 25. See, also, (g) 4 Burn E. L. 385, Phillimore's ed. Major v. Peck, 1 Lutw. 342, per curiam; (h) 5 Co. 29 b. Anon. 3 Leon. 278; Kempe v. Lawrence, \i) 3 P. Wms. 88. Owen, 134 ; but vide King v. Death, (j) Page 392, 14th ed. Brownl. 57, contra. {k) Anon. Brownl. 47 ; Jones v. Straf- (m) [Bell J. in Taylor v. Barron, 35 N. ford, 3 P. Wms. 89, overruling the opin- H. 493.] As to the proceedings now sub- ion in Brndnel's case, 5 Co. 9 a. stituted in lieu of scire facias, by the com- (Z) Bac. Abr. tit. Exors. B. 1, 3, vol. mon law procedure act (1852), see post, 3, p. 18, citing 1 Roll. Abr. 888, 889; pt.li.bk.lli.ch.lv. [487] 552 OF LIMITED ADMINISTBATIONS. [PT. I. BK. V. upon that judgment. Also it has been holden, that if such admin- istrator obtains judgment he may bring scire facias against the bail, and they cannot object that the infant is of full age; for the recognizance • being to the administrator himself by name, though he be administrator durante minore cetate, yet he may have scire facias against the bail. («) In the case of Jones v. Basset, (o) it seems to have been laid Suits in down, that a suit in equity is put an end to by the whether infant's coming of age, and that the infant must begin determined anew : but that where the administrator durante minore by the mi- nor's com- cetate has proceeded to a decree and account, the infant will be allowed to go on. (jo) But according to the modern practice, upon the determination of an administration pendente minore cetate, a suit commenced by the temporary administrator may be added to, and continued by supplemental bill, (^q) For in this case there is no change of interest which can affect the question between the parties, but only a change of the person in whose name the suit must be prosecuted ; and if there has been no decree, the suit may pro- ceed, after the supplemental bill has been filed in the same man- ner as if the original plaintiff had continued such, except that the defendants must answer the supplemental bill, and either * admit or put in issue the title of the new plaintiff. But if a decree has been obtained before the event on which such a sup- plemental bill becomes necessary, though the decree be only a decree nisi, there must be a decree on the supplemental bill, declaring that the plaintiff in that bill is entitled to stand in the place of the plaintiff in the original bill, and to have the benefit of the proceedings upon it, and to prosecute the decree, and take the steps necessary to render it effectual, (r) It was held that if the administrator durante minore cetate The infant brought an action, and while it was pending the infant ing of age came of age, he could not bring a writ by journeys (n) Bac. Abr. ubi supra ; Emilias v. (o) Prec. Chanc. 174. Weeks, 2 Keb. 877 ; Embrin v. Mompes- (p) See, also, Coke v. Hodges, 1 Vern. son, 2 Lev. 37. But, by Hale C. J. in 24. this case, i£ after the infant come of age, (q) Stubbs w. Leigh, 1 Cox, 133; Cary's he had sued out execution upon the prin- Rep. 31, ed. 1820 ; Mitf. PI. 64, 4th ed. cipal judgment, it might have been a ques- (r) Mitf. PI. 64, 4th ed. ; [Bell J. in tion, whether that ought to be sued out Taylor v. Barron, 35 N. H. 493.] by him or the infant. [488] CH. III. § III.] ADMINISTEATION DURANTE MINOEE ^TATE. 553 accounts; because in no case could such a suit be but could not 1.1 1 . . , bring jour- by the same person, not only in representation, but neysac- strictly and truly the same person, (s) """" ^' With respect to the effect of the determination of such an ad- ministration upon executions issued by the administrator Effect of during his office, a case occurred in Mich. Term, 28 & ao™oT' 29 Eliz., (i) where an administrator duratite minor e on"xec'^- cetate of an infant executor had iudgment in an action '■"" issued . ■' ° by admin- of debt brought by him for money due to the testator, istrator. and the defendant being taken in execution, the infant executor came of full age. It was moved that he might be discharged out of custody, because the authority of the. administrator was deter- mined, and he could not acknowledge satisfaction or make ac- quittances, &c. But it was held by Windham and Rhodes, jus- tices, that the recovery and judgment were still in force, though the party might be relieved by an audita querela, (u) Formerly an opinion prevailed, that an administrator * durante minore cetate could not sue ; for he was considered as a what acts mere servant or bailifE. (a;) But it is now established, tratw!"'"' not only that he may bring actions to recover the debts ^"'""'s. .J J o ^ &c. may due to the deceased, (?/) but also that he may bring do. trover for his goods ; because he has more than the bare custody of them, for he has the property itself . (s) And it is laid down in a modern book of authority, (a) that an administrator during the minority of one entitled to administration has for the time all the power and authority of an absolute administrator. (6) So though an administrator durante minore cetate has but a limited and special property in the estate of the deceased, (c) and no interest or benefit in the testator's or intestate's estate, but in right of the infant, (c^) yet he may do all acts which are incum- (s) Elstobb V. Thoroughgood, 1 Salk. {y) Piggot's case, 5 Co. 29 o ; Finche's 393; S. C. 1 Ld. Raym. 283 ; Kinsey v. case, 6 Co. 67 b ; Com. Dig. Admon. F. Heywood, 1 Ld. Raym. 433. See, as to (z) Sethe v. Sethe, Roll. Abr. Exors. the nature of the writ of journeys ac- M. pi. 2 ; Com. Dig. Admon. F. counts, post, pt. V. bk. i. ch. i. (a) Com. Dig. Admon. F. (<) Anon. Godb. 104; 3 Leon. 278. (b) See, also, Roll. Abr. Exors. M. (m) In most cases where the remedy of pi. 1. audita querela was formerly resorted to, (c) Roll. Abr. Exors. M. pi. 5. the court will now relieve in a summary (d) Grandison v. Dover, Skinu. 155 ; way on motion. Bac. Abr. Exors. B. 1. In the civil law {x) Anon. Owen, 35 ; Anon. 3 Leon, he is considered but in the nature of a cu- 278 ; Thackston v. Hulmlocke, 2 Keb. 30. rator. Bac. Abr. Exors. B. 1. [489] 554 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. bent on an executor, and which are for the advantage of the infant and estate of the deceased ; (e) and therefore he may sell hona peritura as a bailiff may, such as fat cattle, grain, or anything else which may be the worse for keeping ; and he may sell goods for the payment of debts. (/) So he may assent to a legacy, if there are assets for the payment of debts, (^f) Again, he may receive debts due to the deceased, and he may discharge and acquit them. (h~) So he may be sued for the debts due from the deceased ; and if he give his bond for any of such debts, he * may retain goods to the value ; (z) and if an action be brought against him, and the administration determine pending the action, he ought to retain assets to satisfy the debt which attached on him by the action. (A) Likewise he may retain for his own debt. (Z) But he cannot do anything to the prejudice of the infant, and therefore he cannot sell the goods of the deceased any farther than they are necessary for payment of debts, nor can he otherwise sell a term for years during the minority of the infant, (m) In Sir Moyle Finch's case (w) a distinction was taken, that if the administration is granted specially, ad opus et commodum, ^c. et non aliter nee alio modo, there such an administrator cannot grant a lease ; but where the administration is committed gener- ally, he shall not only have an action to recover debts and duties and be liable to all actions, but also he may make leases, (o) which (e) Bac. Abr. Exors. B. 1 ; Boll. Abr. (o) See, also, Bac. Abr. Leases, I. 7. Exors. M. The distinction is thus stated in Tonch- (/) Bac. Abr. Exors. B. 1,2; Prince's stone, p. 490: " The administrator durante case, 5 Co. 29 b; S. C. Roll. Abr. Exors. minore cetate is sometimes general, i. e. M. pi. 5 ; S. C. nomine Price v. Simpson, when his administration is granted unto Cro. Eliz. 719 ; 2 Anders. 132 ; Com. Dig. him without any words of limitation ; and Admon. E. sometimes he is special, i. e. when his ad- ig) Bac. Abr. Exors. B. 1, 2 ; Prince's ministration is granted to him, ad opus et case, 5 Co. 29 a; Anon. 1 Freem. 288. usum of the infant only. In the first case, (A) Com. Dig. Admon. F. he hath as large a power as another ad- (i) Briers w. Goddard, Hob. 250 ; Com. ministrator hath; and therefore he may Dig. Admon. F. assent to a legacy, albeitthere be not assets (i) Sparkes v. Crofts, Comberb. 465, by to pay debts ; he may sell any of the goods Lord Holt. But it has been doubted or chattels of the deceased, or give them whether the action would not abate. Ford away, or the like, as another administrator V, Glanville, Moore, 462 ; S. C. Goldsb. may do. But in the last ease, it is other- 136 ; S. C. cit. Lutw. 342 ; post, 492. wise ; for such a special administrator can (/) Eoskelly v. Godolphin, T. Raym. 483 ; do little more than the ordinary himself j Com. Dig. Admon. F. and therefore he may not sell any of the (m) Bac. Abr. tit. Exors. B. 1, 2. goods or chattels of the deceased, except (n) 6 Co. 67 b. it be in case where they are like to perish, [490] CH. III. § III.] ADMINISTRATION DURANTE MINOEE ^TATE. 555 will be good till the infant attains his age. (p) And it is observed in * Wentworth's Office of an Executor, {q) that " if the testa- tor himself making an infant executor, doth also appoint another to be his executor during his nonage, expressing it to be only for the benefit and behoof of the infant executor, I doubt whether this temporary executor stands any whit restrained from what pertains to the power of absolute executor ; but there may be, perhaps, a difference between him to whom the owner of the goods commits the government of them, though but for a" time and in a special manner, and the administrator so especially made by the ordi- nary." If an administrator durante minore cetate brings an action, he must aver in the declaration that the infant is still under in an ae- age (i. e. in all cases since the stat. 38 (Seo. 3, c. 87, administra- s. 16, that he is within the age of twenty-one years) ; be- ^^ j™" "' cause it is a matter within his conusance, and which en- ^"' ^^"^ titles him to the action, (r^ However, the defendant that the in- must take advantage of this omission by way of plea or within age. demurrer, and cannot object to it after he has joined issue with the plaintiff on another point, which admits the continuance of his authority, (s) So a general averment that the infant is " under age," without saying under what age, has been held sufficient after verdict, (i) and to be cured by pleading over, (m) And since the common law procedure act (1852), it should seem that an objection to such an averment could not be sustained at all. It is true that m the case of Beal v. Simpson, (a;) the court seemed to consider, that such an allegation with respect to an infant executor would be bad on general demurrer. But it must be recollected, that when that case was decided, the administration determined on an infant executor attaining the age of seventeen ; and Treby C. J. ob- served that " under age " shall be intended under twenty-one. (?/) for funeral expenses or for payment of v. Aldrich, Cro. Jac. 590 ; Slater v. May, debts, nor may he assent to a legacy where 6 Mod. 304. there is not assets to pay debts," &c. (s) Bac. Abr. Exors. B. 1, 2. ip) Bac. Abr. tit. Leases, I. 7. And (t) Wells v. Some, Cro. Car. 240 ; Owen some hold that such a lease would be good v. Holden, 2 Sid. 60. after, till the executor avoided it by actual («) Beal v. Simpson, 1 Ld. Raym. 408. entry. lb. 6 Co. 67 6. (x) 1 Ld. Eaym. 408. (?) P. 393, 14th ed. {t/) 1 Ld. Eaym. 410. (r) Piggot's case, 5 Co. 29 a ; Walthall [491] 656 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. * But if an action be brought against such an administrator, the 8ecus,m plaintiff in his declaration need not aver that the in- TgA^^ fant is still under age ; for this is a matter more prop- him. gpiy ^vithin the conusance of the defendant, and, if his power be determined, he ought to show it. (2) It is a good plea in abatement, where a defendant is charged as Plea, by administrator generally, that administration was granted rahlist?^ to him durante minore cetate only. But such a plea must charged as ^^'^^ ^^^^ *^® infant is still living and under age ; for adminis- though the defendant was a special administrator at trator ° ... ^ ■ ^ generally, first, yet if that special administration were determined, as by the death of the infant, he might be administrator generally, as the declaration supposes, (a) In Major v. Peck, (6) it was pleaded to an action by an admin- PleaBMjs istrator durante, &c. that since the last continuance the darreincon- infant Came of affe ; the plaintiff demurred, and the de- tmuance ^ o ' r ^ ^ that the in- fendant joined in the demurrer; but it was never en- come of tered by the plaintiff for argument ; and this case is the *^^' authority cited in Comyn's Digest, (e) after stating that such a plea is good. In Ford v. Glanville, (i) where the action was against the administrator durante, &c. the court was in great doubt, whether the suit abated by the infant's coming of age pending the action, (e) It has been laid down, that if an executor durante minore cetate Liability of has duly administered the assets, and paid over the sur- such an ad- ■' . ministrator plus to the executor of fuU age, he is not chargeable to ministra- Creditors, and he may show this matter under a general m^ned^; ^'^' P^^^ o^ plene administravit ; (/) but that if he has com- to credit- mitted a * devastavit he will be liable to creditors ; {g) °''^' even though he should obtain a release from the infant, when of full age. (A) (2) Carver v. Haselrig, Hob. 251 ; Wal- Goldsborough, p. 136, it is said to have thall !). Aldrich, Cro. Jac. 590; Croft v. been held a good plea. See, also, S. C. Walbanke, Yelv. 128 ; Beal u. Simpson, 1 cited accordingly in Lutw. 342. Ld. Raym. 409, by PowellJ. (/) Anon. 1 Freem. 150. See, also. (a) Sparkes v. Crofts, 1 Ld. Raym. 265 ; Brooking v. Jennings, 1 Mod. 174. S. C. Comberb. 465 ; Carth. 432 ; Bac. {g) Bull. N. P. 145, citing Palmer v. Abr. Exors. B. 1, 3. Litherland, Latch, 160 ; Packman's case, 6 (6) 1 Lutw. 342. Co. 19 6. See, also, Chandler w. Thompson, (c) Tit. Abatement, H. 40. Hob. 266 ; Lawson v. Crofts, 1 Sid. 57. (d) Moore, 462. (A) Anon. 1 Freem. 150; Com. Dig. (e) In the report of the same case in Admon. F. [492] [493] CH. III. § III.] ADMINISTRATION DURANTE MINORE ^TATE. 557 However, it is stated by Lord C. B. Gilbert, («') that such an administrator is not chargeable at the suit of a creditor after the infant comes of age ; but such creditor may sue the infant, who has his remedy against the executor, (/fc) And it is said by Lord Hardwicke, in Fotherby v. Pate, (J) that though an administrator durante minore oetate represents the deceased while his adminis- tration subsists, yet when it is determined, he has nothing more to do, nor can he be called to account but by the executor ; and that whatever he may do during his administration, he is not liable to any other person. His lordship proceeded to observe, that after such an adminis- trator has possessed himself of effects, if he is brought before the court, without the executor, he may demur for that cause ; but as the court would allow a party to follow assets into any hands, if it were shown by proper charges that he had not accounted to the infant, but fraudulently and by collusion detained any part, there was no doubt but that such a bill might be maintained against an administrator durante minore oetate. (to) It seems clear that an administrator durante minore cetate, who has wasted the goods of the deceased, cannot be charged by a creditor as executor de son tort, after the infant has attained his majority ; because the administrator at the time had lawful power to administer, (w) In Taylor v. Newton, (o) an administration had been * granted to a guardian pendente minoritate of a widow, and on to a sub- her coming of age she renounced for herself and her admfnis- only child, an infant, and administration was granted to t™tor: a creditor, to whom the guardian refused to account ; whereupon he was called on by the creditor to give in an inventory and ac- count. The guardian appeared under a protestation, because his administration was expired, and his counsel insisted that he was not liable to account, now his administration was expired. But Sir George Lee decreed him to give in an inventory and account by a day specified, and condemned him in costs. With respect to the liability of such an administrator to the in- (i) Bac. Abr. Exors. B. 1, 2. (n) Palmer v. Litherland, Latch, 160, (k) See, also, ace. Brooking v. Jennings, by Doddridge and Jones, JJ. ; Lawson v. 1 Mod. 175, by Vaughan C. J. Crofts, 1 Sid. 57. (I) 3 Atk. 603. (o) 1 Cas. temp. Lee, 15. (m) 3 Atk, 605. [494] 558 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. fant, after he has come of age, it is laid down, that if the adminis- to the in- trator wastes the assets, the proper way for the in- of age. fant to charge him is by action on the case, (p) Also by some opinions the infant may bring detinue against him for those goods which he still continues in his possession, or he might oblige him to account in the spiritual court, (g-) but cannot bring a writ of account against him at law. (r) If an administration durante minore cetate be repealed, and an- other made administrator durante minore cetate, and the second administrator brings the first administrator to account, and after releases to him, yet the infant at full age may compel the first administrator to account again to him, and the first account to the second administrator, and his release shall not be any bar to it. (s) Liability of It has been held that if a man obtains judgment judgment against an administrator durante minore cetate, and ministra-* afterwards the executor or administrator comes of age, a tor. scire facias (i) lies against him, upon the judgment, (m) * Although an administrator of an executor is not administra- Adminis- tor to the first testator, yet the administrator durante ranumino- minore cetttte of the executor of an executor is loco ex- executorof ^<''"'t<^™i ^^^ t^6 representative of the first testator. («) executor. Therefore, in an action by a creditor of the original tes- tator, such an administrator is properly charged as the adminis- trator durante minore cetate of the second executor, and not as the administrator de bonis non of the original deceased, (w) And he might formerly be sued in the spiritual court for a legacy be- queathed by the latter, (a;) {p) Bac. Abr. Executors, B. 1,2; Law- Bell J. said : " We regard it as the law in son V. Croft, 1 Sid. 57. this state, that successive administrators (?) 1 Anders. 34; Com. Dig. Admin- and executors are privies in law. Theex- istration, F. ; Bac. Abr. Exors. B. 1, 2. ecutor daring whose nonage an admin- (r) 1 Anders. 34 ; Bac. Abr. Exors. B. istrator durante minore cetate has been ap- 1, 2. pointed, is a privy to such administrator. , (s) Roll. Abr. Exors. M. pi. 3. He is bound by a judgment rendered (t) As to the proceedings now substituted against him, and may take advantage by in lieu of scire facias by the common law scire facias of judgments in his favor."] procedure .act (1852), see post, pt. Ii. bk. (w) Anon. 1 Freem. 288; ante, 469. in. ch. IX. (lo) Norton v. Molyneux, Hob. 246. (ii) Sparkes v. Crofts, 1 Ld. Eaym. 265. (x) Anon. 1 Freem. 288. [In Taylor ;;. Barron, 35 N. H. 484, 493, [495] CH. III. § IV.] OF ADMINISTRATION PENDENTE LITE. 669 SECTION IV. Of Administration pendente lite. In case of a controversy in the spiritual court concerning the right of administration to an intestate, it seems to have been always admitted, that it was competent to the ordinary to appoint an administrator •pendente lite, (a;^) Yet where the controversy before the ordinary respected a will, it was once considered that a grant of this species of administration was utterly void, (y) But since the case of Walker v. Woolaston, decided in K. B., on error from C. P., Trin. T. 1731, (2) it has been settled, that the court has the power to grant administration pendente lite as well touch- ing an executorship as the right to administration, (a) And now by the 70th section of the court of probate act, 1857 (20 & 21 Vict. c. 77), it is enacted, that "pending any 20&21 suit touching the validity of the will of any deceased s.'ra"'^'^' person, or for obtaining, recalling or revoking any pro- g°a"nt ad^^ bate or any grant of administration, the court of probate m'n'stra- may appoint * an administrator of the personal estate <^«™«e lite,. of such deceased person ; and the administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of such personal estate, and every such administrator shall be subject to the immediate control of the court and act under its direction." (5) {x^) [See "Walker v. Dougherty, 14 Geo. until they had passed before the registrar. 653 ; Saile v. Court of Probate, 7 R. I. See, also, Wright v. Rogers, L. E. 2 P. & 270. Such an administrator generally D. 179; Hitchen v. Birks, 10 Law Eep. gives bonds. See Re Colvin, 3 Md. Ch. Eq. Cas. 471; Tichborne v. Tichborne, 278; Genl. Sts. Mass. c. 94, § 7.] L. R. 2 P. & D. 41. [By statute in Mas- (y) Robin's case, Moore, 636 ; Smyth sachusetts, the probate court may appoint 17. Smyth, 3 Keb. 54 ; Frederick 'v. Hook, a special administrator to collect and pre- Carth. 153. serve the effects of the deceased, when by (z) 2 P. Wms. 589. reason of a suit concerning the proof of (a) S. P. Wills V. Rich, 2 Atk. 286 ; a will, or from other cause, there is delay Maskeline v. Harrison, 2 Cas. temp. Lee, in granting letters testamentary or of ad- 258. ministration; and in case of an appeal (6) See In the Goods of Dawes, L. E. from the decree appointing such special 2 P. & D. 147; [Gresham w. Pyron, 17 administrator, he shall nevertheless pro- Geo. 263.] See, also, Charlton v. Hind- ceed in the execution of his duties until marsh, 1 Sw. & Tr. 519, where the court it is otherwise ordered by the supreme directed that the administrator should not court of probate. Genl. Sts. c. 94, § 6. discharge claims on the deceased's estate Such administrator is required to give [496] 660 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. And by stat. 21 & 22 Vict. c. 95, s. 22, "all the provisions 21 & 22 contained in the court of probate act respecting grants s.22ito ' of administration pending suit shall be deemed to apply appeals? t° ^^^ ^^^® °^ appeals to the house of lords under the said act." Further, by the court of probate act, 1857, s. 71, it is enacted, 20 & 21 t^^* " ^^ shall be lawful for the court of probate to ap- Vict. c. 77, point any administrator appointed as aforesaid, or any Keceiverof other person, to be receiver of the real estate of any pendente deceased person pending any suit in the court touching the validity of any will of such deceased person by which his real estate may be affected ; and such receiver shall have such power to receive all rents and profits of such real estate, and such powers of letting and managing such real estate, as the court may direct, (c) By stat. 21 & 22 Vict. c. 95, s. 21, " It shall be lawful for the court of probate to require security by bond in such form as by any rules and orders shall from time to time be directed, with or without sureties, from any receiver of the real estate of any deceased person appointed by the said court, under section seventy-one of ' The Court of Probate Act,' and the court may, on application made on motion or in a summary way, order one of the regis- trars of the court to assign the same to some person to be named by such order ; and such person, his executors or administrators, shall thereupon * be entitled to sue on the said security, or put 21&22 Vict. c. 95, s. 21. The court of probate may re- quire se- curity from tlie re- ceiver of real estate. bonds. § 7. His duty is to collect all the goods, chattels, and credits of the deceased and preserve them for the executor or ad- ministrator when appointed, and for that purpose he may commence and maintain suits, and may sell sucli perishable and other goods as the judge shall order to be sold. If he is appointed by reason of a suit concerning the probate of a will, or delay for any cause in granting letters tes- tamentary, the judge may authorize him to take, charge of the real estate, collect the rents, and do all things needful for the preservation thereof, and as a charge thereon. § 8. He may by leave of -the probate court pay from the personal estate in his hands, the expenses of the last sick- [497] ness and funeral of the deceased. § 11. He shall not be liable to an action by any creditor of the deceased. § 13. His pow- ers shall cease upon granting letters tes- tamentary or of administration. § 12. As to Missouri, see Rogers v. Dively, .51 Missou. 193. Letters of general adminis- tration, granted during the pendency of a controversy respecting the probate of a will, are invalid. They cannot be sup- ported as a grant of administration pen- dente lite. Slade v. Washburn, 3 Ired. (N. Car.) Law, 557. See I>atton'3 Ap- peal, 31 Penn. St. 465.] (c) See Grant v. Grant, L. R. 1 P. & D. 664. OH. III. § IV.] OF ADMINISTRATION PENDENTE LITE. 561 the same in force in his or their own name or names, both at law and in equity, as if the same had been originally given to him instead of to the judge of the said court, and shall be entitled to to recover thereon, as trustee for all persons interested, the full amount due in virtue thereof." Before granting administration pendente lite the court m^ust be satisfied as to the necessity (c?) of such an ajiniinistra- Of what tor, (e) and also as to the fitness of the proposed admin- must be istrator ; or must be placed in a condition to determine before between the two (its most usual office upon such occa- f^^^l^^, sions), an administrator, that is, being proposed by either tiation party. (/) lite. The later practice of the prerogative court was to appoint an administrator pendente lite in all cases where the court of chan- cery would appoint a receiver. (^) And now by the court of probate act (s. 70), (A) it is enacted that "pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling, or revoking any probate or any grant of ad- ministration, the court of probate may appoint an administrator of the personal estate of such deceased person." On the other hand, it is the practice of the court to decline putting a litigant party in possession of the property. The ad- by granting administration pending suit to him, always mu"t^be an granting it, where requisite, to a nominee presumed to '"^son'^™' be indifferent between the contending parties, (i) * Administrators pendente lite are the appointees of the court, [d) And accordingly the court will not appoint an administrator pendente lite where there is a person named in the will as executor, whose appointment is not questioned, and who can discharge the duties of such an administrator. Mor- timer V. Paull, L. R, 2 P. & D. 85. (e) lb. ; Yonng v. Brown, 1 Hagg. 54 ; Sutton V, Smith, 1 Cas. temp. Lee, 207 ; Maskeline v. Harrison, 2 Cas. temp, Lee, 258 ; Godrich v. Jones, 2 Curt. 453 ; Bel- lew V. Bellew, 11 Jur. N. S. 588 ; S. C. 34 L. J., P. M. & A. 125. (/) 1 Add. 329. (g) Bellew v. Bellew, 34 L. J., P. M. & A. 125; S. C. 11 Jur. N. S. 588. (h) Ante, 495. VOL. I. 36 (i) 1 Add. 330 ; Young v. Brown, 1 Hagg. 54; Stratton v. Stratton, 2 Cas. ■ temp. Lee, 49. However, in Colviu v. Praser, 2 Hagg. 613, administration pen- dente lite, and limited to certain property, was granted by consent to one of the lit- igant parties. See, also, De Chatelain v. Pontigny, 1 Sw. & Tr. 34. See, farther, as to the practice relating to the prefer- ence or rejection of nominees, Hellier v. Hellier, 1 Cas. temp. Lee, 381 ; Bond v. Bond, lb. 333, 354. In the Queen's Proc- tor V. Williams, 2 Sw. & Tr. 353, a per- son who had been receiver in chancery of the same estates was, by consent, appointed administrator pendente lite. [498] 562 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. 20&21 Vict. c. 77, s. 72. Eemunera- tion to ad- istrators «: and are not to be merely considered as the nominees or agents of is not to the several parties on whose recommendation they are ered^fa' Selected. (A;) Therefore, in an administration pendente nee'^o?the'' ^*'^^» l™ited to recover certain sums, and granted jointly parties. to the nominees of the two parties in the suit, the court refused to dispense with such administrators entering into a joint bond, (l) By Stat. 20 & 21 Vict. c. 77, s. 72, " the court of probate may direct that administrators and receivers appointed pending suits involving matters and causes testamentary shall receive out of the personal and real estate of the deceased, such reasonable remuneration as the court think fit." (JP) Although doubts were entertained on the subject before the Power of case of Walker v. Woollaston, (ni) it was settled, that trato°»era- ^^ administrator pendente lite might maintain actions dentelite: for recovering debts due to the deceased, (ri) So where a person, whether he is heir-at-law or next of kin, or any other man whatsoever, kept possession of the testator's leasehold es- tate, such an administrator was held entitled to bring ejectments for the recovery of the possession, (o) But the nature of the au- thority conferred by such letters of administration was, before the passing of the court of probate act, * merely to collect the effects ; (j?) and his power did not extend either to vest or dis- tribute them, (g') Therefore, even to enable him to lodge money lite and re- ceivers. (k) Stanley v. Bernes, 1 Hagg. 221. (0 lb. (P) [Like provision is made in Massa- chusetts by Genl. Sts. u. 94, § 8.] (m) 2 P. Wms. 576; S. C. 2 Stra. 917 ; Fitzgib. 202, 257 ; 1 Barnard. B. E. 423, 467 ; 2 Barnard. 14, 62. (n) lb. ; Knight v. Duplessis, 1 Ves. sen. 325 ;.BaU v. Oliver, 2 Ves. & B. 97, 98; Gallivan v. Evans, 1 Ball & Beat. 192; [ante, 496, note (6); Re Colvin, 3 Md. Ch. 278.] (o) Wills v. Eich, 2 Atk. 286 ; Jones v. Goodrich, 10 Sim. 328; [Ke Colvin, 3 Md. Ch. 278.] (p) Adam ■;. Shaw, 1 Sch. & Lef. 254. See, also, the observations of SirH. Jenner Fust in Godrich v. Jones, 2 Curt. 457. [499] (?) 1 Ball & Beat. 192. [An adminis- trator pendente lite is an officer of the court, whose duty is limited to filing an inventory, taking care of the assets, and collecting and paying debts. His author- ity does not extend to payment of the legacies or making distribution of the es- tate. Eogers J. in Ellmaker's Estate, 4 Watts, 34, 36 ; Commonwealth v. Mateer, 16 Serg. & R. 416. When the suit is ended, an administrator pendente lite must pay over all that he has received in his character of administrator, to the persons pronounced by the court to be entitled ; and from that time his functions are com- pletely at an end, and the court is bound to take care that he discharges the duty committed to him, so far as that he de- CH. III. § IV.] OF ADMINISTRATION PENDENTE LITE. 563 in court, which he was not called upon to do, it was necessary for him to file a bill, (r) And he had no authority to pay legacies ; though if paid bond fide he would be allowed for them, (s) But now it will be seen that the court of probate act (s. 70) ex- pressly enacts that he shall have all the rights and powers of a general administrator, other than the right of distributing the residue, (t) Such an administrator is not liable to interest upon a bal- ance in his hands, during the pendency of the suit in the probate court, (u) During a litigation in the ecclesiastical court for probate or ad- ministration, a court of equity would entertain a bill for , . , , I. 1 ■, T .11 A receiver the mere preservation of the property of the deceased, till would be the litigation was determined, and appoint a receiver, by'the ^ although the court of probate, by granting an administra- chancery tion pende7ite lite, might provide for the collection of the no'™i."i- effects. Cw) And a court of equity would appoint a re- an admm- i 1, , 1 ..... , , . . , istration ceiver, * as well when the litigation m the ecclesiastical pendente court was to recall administration or probate already bealso°ob- granted, as in a case where no administration had been '*'"^'^- granted before the application to the court of chancery, (a;) The mere circumstance, however, that there had been a suit instituted 462) ; Wood v. Hitchings, 2 Bear. 289. Such a suit need not be brought to a hear- ing. Anderson v. Guichard, 9 Hare, 275. In fact it never is brought to a hearing. But after the litigation is over in the pro- bate court, the practice is to discharge the receiver and dispose of the costs. And if it appears that there was no reasonable ground for instituting the suit at all, the court will order the defendant to pay all the costs, though a receiver has been ap- pointed. Barton v. Eock, 22 Beav. 81 ; S. C. lb. 376. A question may arise, whether the practice of courts of equity as to the appointment of receivers should be altered by reason of the extension of the power of the court of probate by the 70th and 7Ist sections, ante, 496. [x) Eutherford v. Douglas, 1 Sim. & Stu. lU, note {d) to Dew v. Clarke; Ball o. Oliver, 2 Ves. & B. 96. Where no probate or administration had been granted, it was of course to appoint a re- [500] liver over the assets to the rightful ad- ministrator. Eogers J. in Ellmaker's Es- tate, 4 Watts, 36, 37; Gibson C. J. in Hinkle tj. Eichelberger, 2 Penn. St. 483, 484. His authority ceases with the suit. Cole V. Wooden, 18 N.J. (Law) 15.] (r) Gallivan u. Evans, 1 Ball & Beat. 192. (s) Adair v. Shaw, 1 Sch. & Lef. 254. He has no business to construe the will ; he is only to hand over the assets to the person entitled, or to dispose of them pur- suant to the directions of a court of equity. lb. 2.')5, 256. (t) See ante, 495. (u) 1 Ball & Beat. 191. (u) Mitf. PI. 136, 145, 4th cd. ; King v. King, 6 Ves. 172; Edmunds u. Bird, 1 Ves. & B. 542 ; Atkinson v. Henshaw, 2 Ves. & B. 85 ; Ball v. Oliver, 2 Ves. & B. 96 ; Watkins v. Brent, 1 My. & Cr. 102 (overruling the distinction taken by Lord Erskine in Eichards v. Chave, 12 Ves. 564 OF LIMITED ADMINISTRATIONS. [PT. I. BK. V. in tlie ecclesiastical court to recall the administration or probate already granted, did not give the court of chancery jurisdiction to interfere. For if that were so, it is evident that in order to obtain a receiver it would have been only necessary to institute a suit in the ecclesiastical court, (jf) But the court of chancery would look into the case to see whether, on the whole, such a case was made as justified the interference of that court. And if it appeared, from all the circumstances, that there was no executor or adminis- trator in existence with the right and power to act as such, and that there was substantially a lis pendens in the ecclesiastical court, a receiver might be appointed, notwithstanding there was no ground laid for interference in respect of any improper conduct of the parties. (2) The * general principle was stated to be that where there was a legal title to receive, the court ought not to in- terfere unless where the legal title was abused, or there was proof that it was in danger of being so. (a) A receiver might be granted as well where the property was in the hands of the ex- ecutor named in the will which was in Ktigation, as where it was outstanding and likely to be lost. But it had to be shown that the amount and disposition of the property was such as to jus- tify the court in burdening the estate with the expense of a re- ceiver. (b~) In Marr v. Littlewood (c) Lord Cottenham granted a receiver, at the instance of an executor, pending a suit in the ecclesiasti- cal court to have the probate annulled ; the defendant, who was the party impeaching the will and setting up an intestacy, hav- ing by her own acts prevented the executor from getting in the assets. But the bill for the receiver could not seek discovery in refer- ceiver, pending a bona fide litigation in 13th June, 1812, cited in 1 Madd. Chanc. the ecclesiastical court to determine the 225, note (1), 2d ed. ; Dew v. Clarke, 1 right to probate or administration ; unless Sim. & Stu. 114; Eendall u. Eendall, 1 a special case could be made for refusing Hare, 152 ; Connor v. Connor, 15 Sim. such appointment. Eendall v. Eendall, 1 598 ; Newton v. Eicketts, 10 Beav. 525 ; Hare, 152; Barton v. Eook, 22 Beav. 376, Hitchin v. Birks, L. E. 10 Eq. Cas. 471. 377. It must have sufSciently appeared (z) 1 My. & Cr. 97 ; Eendall v. Eendall, that there was a litigation pending in the 1 Hare, 152. ecclesiastical court. Jones v. Frost, 3 (o) Devey v. Thornton, 9 Hare, 229, by Madd. 1 ; S. C. 1 Jac. 454 ; 2 My. & Cr. Turner V. C. But see, also. Dimes v. 457, 458. Steinberg, 2 Sm. & Gr. 75. (y) Watkins v. Brent, 1 My. & Cr. 97. (6) Whitworth v. Whyddon, 2 Mao. & See, also. Knight b. Duplessis, 1 Ves. sen. G. 52. 324 ; and a MS. case argued on demurrer, (c) 2 My. & Cr. 454. [501] CH. III. § v.] OF ADMINISTRATION DURANTE ABSENTIA. 565 ence to the merits on that litigation ; for a plaintiff cannot by one bill obtain specific relief and also a discovery on a matter distinct from that specific relief, (d) So when the bill for the receiver went on to pray that upon the administrator being appointed and brought before the court, the rights of the parties might be de- clared, and the estate administered, a demurrer to the latter part of the relief prayed was allowed, (e) Where pending a contest in the ecclesiastical court between the plaintiff and defendant, as to the validity of two wills, the plain- tiff filed a bill for a receiver of the testatrix's estate, and to set aside an assignment made by her to the defendant, the court refused to appoint a receiver of the * property comprised in the assignment, that being claimed by the defendant independently of either will. (/) SECTION V. Of Administration durante ahsentid. If the executor named in the will, or the next of kin, be out of the kingdom, the ecclesiastical courts have, as they At com- w pro- always have had, the power, before probate obtained, or ^efore^^ letters of administration issued, of granting to another ^ate= a limited administration durante absentid. (^) In the case of Clare v. Hedges, 3 W. & M., (A) the court held clearly that such administration was grantable by law, and that it might be a great convenience to do so ; for if the next of kin be beyond sea, and such administration could not be granted, the debts due to the intestate might be lost. So in Slater v. May, 3 Ann., (i) where an action was brought by an administrator cum testamento annexo, durante absentid of the executor, Lord Holt said that it was reason- able there should be such an administrator, and that this admin- istration stood upon the same reason as an administration durante minore cetate of an executor, viz, that there should be a person to (d) "Wood V. Hitchings, 3 Beav. 503. Mod. U ; S. C. cited from MS. in Walker (c) De Feucheres v. Dawes, 5 Beav. u. WooUaston, 2 P. Wms. 579. 110. As to the costs of the bill for the (i) 2 Ld. Raym. 1071 ; S. C. 2 Salk. 42 ; receiver, see Frowd v. Baker, 4 Beav. 76. 6 Mod. 304. See ante, 438, as to adminis- (/) Jones V. Goodrich, 10 Sim. 327. tration to the attorney of the next of kin ; Ig) See 3 Bac. Abr. 56, tit. Exors. G. and ante, 468, as to administration to the (A) 1 Lutw. 342 ; S. C. (misreported) 4 attorney of the executor. [502] 566 OF TEMPORARY ADMINISTRATIONS. [PT. I. BK. V manage the estate of the testator till the person appouited by him is able. The absence of the executor, or next of kin, to justify such an administration must, it seems, be an absence out of the realm. (A) Such an administrator is such a legal representative as to entitle power of him to assign the leaseholds or other property of the * de- mhiis*™- ceased, (Z) and his power differs in this respect from ^o^'- that of an administrator durante minor e estate, (m) But when probate was once granted, and the executor had gone p, abroad, the ecclesiastical courts did not feel themselves atter pro- bate by authorized to grant new administration on the ground Geo. 3, that the executor had left the kingdom. (mP) Nor could a court of equity interfere by appointing a receiver ; because, although when once a person capable of sustaining the character of legal representative had been brought into court, equity could, in the case of his insolvency or misconduct, appoint another person to manage the affairs of the testator, and compel his legal representative to permit such person to sue in his name ; yet, if the executor went abroad, a court of equity could entertain no suit, there being no person to stand in the situation of the tes- tator, (ji) The consequence of this defect of the authority of the spiritual court was that there was no person existing within the jurisdiction of the courts of law or equity duly authorized to ap- if, at the P®^^ ^"<^ collect the debts. To remedy this inconven- oF^twdve" ^®'^^®' *^^ statute 38 Geo. 3, c. 87 (usually callpd Mr. months Simeou's act), was passed, whereby after reciting the tator's de- laws now existing are not sufficient to enforce a speedy executor to distribution of the assets of deceased persons, where the batHs''™" executor to whom probate of the will hath been granted shaU not ^^ °"* °^ ^^^ jurisdiction of his majesty's courts of law reside and equity, it is enacted, "that at the expiration of within the ^ ^ / ^ ,, ^ n j i , jurisdic- twelve Calendar months (o) from the death of any testa- majesty's^ tor, if the executors or executor, (^) to whom probate (Tc) lb. [See Willing v. Perot, 5 Rawle, twelve months " have been held, when 264; Brodie «. Bickley, 2 Eawle, 431.] compared with the words given in the (/) "Webb V. Kivby, 3 Sm. & G. 333 ; 7 form of the affidavit in sect. 2, and the De G., M. & G. 376. grant of administration in the 3d section, (m) See ante, 469. to mean at or after the expiration of that (ml) [Griffith v. Frazier, 8 Cranch, 9.] period. In the Goods of Ruddy, L. R. 2 (n) 3 Bos. & Pull. 30. P. & D. 330. (o) The words " at the expiration of (p) It will be observed that the statute [503] CH. III. § V.J OF ADMINISTRATION DURANTE ABSENTIA. 567 of the will shall have * been granted, are or is then re- courts, a •T ri ■ ■ T ■ f ^ • • creditor, Siding out of the jurisdiction of Ins majesty s courts of &c. may- law and equity, it shall be lawful for the ecclesiastical ciai admin- court, which hath granted probate of such will, upon a^sf.'""""* the application of any creditor, next of kin or legatee, ^'''■"P- grounded on affidavit hereinafter mentioned, to grant such special administration as hereinafter is also mentioned ; which adminis- tration shall be written or printed upon paper or parchment, stamped only with one five shilling stamp, and shall pay no fur- ther or other duty to his majesty, his heirs, or successors." Sect. 2. "And be it further enacted, that the party The party , . . , , . applvmg applying to the spiritual court to grant such administra- to make tion as aforesaid shall make an affidavit in the follow- ingaffi- ing words, or to the purport and effect following : ^" ' I, A. B. of do swear that there is due and owing to me upon bond or simple contract (or upon account unsettled, as the case may happen to be, in which latter case he shall swear to the best of his belief only), from the estate and effects of deceased, the sum of and that C. D. the only executor capable of acting, and to whom probate hath been granted, hath departed this kingdom, and is now out of the jurisdiction of his majesty's courts of law and equity, and that this deponent is desirous of exhibiting a bill in equity in his majesty's court of for the purpose of being paid his demand out of the assets of the said testator." [N. B. — It is plain that, since the passing of the court of pro- bate act, s. 18 (^post, 508, 509), this form has ceased to be appro- priate. And it should seem that it will now be sufficient for the administrator to take the common administrator's oath Qante, 453) mutatis mutandis.] Sect. 3. " And be it further enacted, that the admin- Adminis- istration * to be granted pursuant to this act shall be in ^^ granted the form hereinafter mentioned (that is to say) : j"^^^' *"'■ by Divine Providence, archbishop of Canterbury, pri- form. applies to executors only, and therefore ad- " shall apply in lilie manner to all cases ministration could not be granted during where letters of administration have been the absence from the country of an admin- granted, and the person to whom such ad- istrator cum testamenio annexo. In the ministration shall have been granted shall Goods of Harrison, 2 Robert. 184. But be out of the jurisdiction of her majesty's now by the court of probate act, 1857 (20 courts of law and equity.'' & 21 Vict. c. 77, s. 74), the above statute [604] [505] 568 OK TEMPOEARy ADMINISTRATIONS. [PT. I. BK. V. mate of all England, and metropolitan, to our well -beloved in Christ greeting: Whereas it hath been a,lleged before the worshipful doctor of laws, surrogate of doctor of laws, master, keeper, or commissary of our prerogative court of Canterbury, lawfully constituted, by you the said that did, whilst living, and of sound mind, memory, and understanding, make and duly execute his last will and testament in writing, and did therefore nominate, constitute, and appoint his executors (or sole executor), who in the month of proved the said will by the authority of our said court, and now reside (or resides) out of this kingdom and out of the jurisdiction of his majesty's courts of law and equity (as in and by an affidavit duly made and sworn to by and brought into and left in the registry of our said court, reference being thereunto had will more fully and at large appear) ; and whereas the surrogate aforesaid, having duly considered the premises, did at the petition of the said decree letters of administration of all and singular the goods, chat- tels, and credits of the said deceased, to be committed and 38 Geo. 3, granted to you the said named by or on behalf of '^■^^' the said a creditor (legatee or one of the next of kin) of the said deceased (as the case may be) limited for the purpose, to become and be made a party to a bill or bills to be exhibited against you in any of his majesty's courts of equity, and to carry the decree or decrees (9) of any of the said court or courts into effect, but no further or otherwise (justice so requiring) ; and we being * desirous that the said goods, chattels, and credits, may be well and faithfully administered, applied, and disposed of according to law, do therefore by these presents grant full power and authority to you in whose fidelity we confide to administer and faithfully dispose of the said goods, chattels, and credits, according to the tenor and effect of the said will, limited as aforesaid, so far as such goods, chattels, and credits of the de- ceased will thereto extend, and the law requires, you having been already sworn well and faithfully to administer the same ; and to make a true and perfect inventory of all and singular the said goods, chattels, and credits, so far as the same may come to your {q) In Warburton v. Hill, 5 Sim. 532, on motion before decree, ordered stock which waa a suit against the bank of standing in the testator's name to be trans- England, and an administrator apppinted ferred to the accountant general, under the statute. Sir L. Shadwell V. C. [506] CH. III. § V.J OK ADMINISTRATION DURANTE ABSENTIA. 569 hands, and to exhibit the same into the registry of our said pre- rogative court of Canterbury on or before the next ensu- ing, and also to render a just and true account thereof ; and we do by these presents ordain and constitute you administrator of all and, singular the goods, chattels, and credits of the said de- ceased, limited as aforesaid, but no further or otherwise. Given at London, the day of in the year of our Lord and in the year of our translation." [N. B. — The language of the grant above prescribed is to be altered so as to make it apply to grants made in the court of pro- bate under the court of probate act. See post, 508, 509.] Sect. 4. " And be it further enacted, that it shall be lawful for the court of equity in which such suit shall be depend- f,^^^^^ ^j ing, to appoint (if it shall be needful) any persons or equitj'may person to collect in any outstanding debts or effects due persons to to such estate, and to give discharges for the same, such standing persons or person giving security in the usual manner ^ '' duly to account for the same." Sect. 5. " And be it further enacted, that it shall be lawful for the accountant general of the high court of chancery, or g^.^^^^ ^^_ for the secretary or deputy secretary of the Governor and longing to Company of the Bank of England, to transfer, * and for of tiie de- the Governor and Company of the Bank of England to be trans- suffer a transfer to be made of any stock belonging to the'name" the estate of such deceased person into the name of the °*„n4nt" accountant general, in trust for such purposes as the court general in ... chancery, shall direct, in any suit in which the person to whom in trust for such administration hath been granted shall be or may poses as the have been a party : Provided, nevertheless, that if the ^iJ^ect^in* executors or executor, capable of acting as such, shall ^"^ ™''- return to, and reside within, the jurisdiction of any of Executor the said courts pending such suit, such executors or exec- H "eside^ utor shall be made party to such suit, and the costs in- ^sdiition curred, by granting such administration, and by proceed- °^^*^^® ^^ ing in such suit against such administrator, shall be paid made a by such person or persons, or out of such fund as the such suit. court where such suit is depending shall direct." Though this statute is only entitled, " An act for the better ad- ministration of assets where the executor to whom probate has [507] 570 OF TEMPORARY ADMINISTRATIONS. [PT. I. BK. V. been granted is out of the realm," it was held, in the ecclesiastical The statute court, by Sir W. Wynne, that it is equally applicable applies, tQ j;}ig case of an executor resident out of the iurisdiction, where ex- .■' ecutor is and out of the reach of the process of his majesty s reach of courts of law and equity, as for instance, the case of an process. executor residing in Scotland, as to that of an executor resident out of the realm, (r) In a subsequent stage of the same cause. Lord Eldon, chancellor, though he held that the authority of the administrator could not be disputed in a court of equity (in which opinion he was followed by Sir W. Grant, master of the rolls), seemed to doubt the propriety of the grant of administra- tion under such circumstances. Yet no objection was taken on that score by the very able advocate who argued the case when in the common pleas, (s) And administration has subsequently been granted in the prerogative court under precisely similar circum- stances, (t) * However it may be to be lamented that the statute was not The statute made more extensive, it is clear that it applies only to only to cases where there are proceedings in chancery. In all thei-rarr* Other instances, the court of probate could only grant proceed- administration durante absentid, on the ground that there ings m ' o chancery, -^yas no legal representative. Thus, in a case where the executor, having obtained probate, was resident at the Cape of Good Hope, and had no agent in this country ; the court was moved for a grant of administration limited to the administrator being made party to the renewal of a lease of which the testator died possessed, renewable every fourteen years, but which re- newal could not be effected without a personal representative to him. It was submitted that the case was within the spirit of the 38 Geo. 3, c. 87. But Sir John Nicholl, regretting the hardship of the case, rejected the application, (u) But this has been remedied by the stat. 21 •& 22 Vict. c. 95, s. Stat. 21 & 18, by which it is enacted, that the provisions of an act 22 Vict. c. •' . ■'^ 95, 8. 18. passed in the 38th year of Geo. 3, c. 87, and of the court of probate act, shall be extended to all executors and administra- tors residing out of the jurisdiction of her majesty's courts of law (r) Hannay v. Taynton, 2 Add. 505. The learned judge suggested a remedy, (s) Mr. Serjt. Bayley, 3 Bos. & Pull. 26. viz, a power of attorney from the executor (i) In the Goods of Jouett, 2 Add. 54. at the Cape. («) In the Goods of Davies, 2 Hagg. 79. [508] CH. III. § v.] OF ADMINISTRATION DURANTE ABSENTIA. 571 and equity, whether it be or be not intended to institute proceed- ings in the court of chancer}', and to all grants made before and subsequently to the passing of the last mentioned act, and it shall be lawful to alter the language of the grant prescribed by the first named statute, so as to make it apply to grants made in the court of probate under the said last mentioned act. (t)) * When the probate court in the exercise of its ordinary jurisdic- tion grants administration during the absence of an ex- Effect of ecutor or next of kin, before probate, or administration of'^Jfe'"™ taken out by him, such administration is at an end the ecutor. moment he returns, (x) But under the statute of 38 Geo. 3, the administrator is not appointed for a limited period, but for a lim- ited purpose, viz, to become and be made party to a bill or bills in equity, and to carry the decree or decrees into effect. The suit so instituted is not, therefore, to fall to the ground, and be at an end, by the return of the executor, but it is to go on, he being made a party in the usual course ; and then the temporary administrator may account, have his costs, and be discharged. («/) It was held in Clare v. Hedges, (2) that in the case of a com- mon law administration durante absentid, if any of the debtors of the deceased paid his debt to the temporary administrator, though it was after the return of the executor or next of kin, yet if the debtor had no notice of such return, it was a good payment. When an administrator has been appointed under the statute (38 Geo. 8), if the executor dies, the administration does Effect of not thereby come to an end, nor the authority of the ^^\^^f^_ administrator determine. This point was decided in the ecutor. court of common pleas, by Rook and Chambre, justices, Lord (v) Under these acts a limited grant of actually payable to the applicant, the grant administration with the will annexed was can be made under the 18th section of 21 made to the personal representative of a & 22 Vict. c. 95. In the Goods of Euddy, legatee, as being within, the spirit if not L. R. 2 P. & D. 330. the letter of the statute of Geo. 3. In the {x) Secus, as an administration granted. Goods of Collier, 2 Sw. & Tr. 444. See, durante absentid, to the attorney of an ex- also, In the Goods of Hampson, 35 L. J., ecutor. In the Goods of Cassidy, 4 Hagg. P. M. & A. 1 ; S. C. 11 Jur. N. S. 911, 360; ante, 469. The power of such an where a similar grant was made to a trus- administrator is wholly determined by the tee substituted by the court of chancery death of the executor. Webb v. Kirby, 2 for an executor who had gone abroad. De G., M. & G. 377 ; ante, 469, 503. Where the applicant is residuary legatee, (y) Eainsford v. Taynton, 7 Ves. 466. whose interest is undetermined, the grant (z) 1 Lutw. 342 ; S. C. cited from MS. will be made under 38 Geo. 3, c. 87, but in Walker v. WooUaston, 2 P. Wms. 579. where a particular sum is set aside for and [509] 572 OF TEMPORARY ADMINISTRATIONS. [PT. I. BK. V. Alvanley C. J. dissentiente. (a) There is no provision made in the statute for the death of the executor ; but the * proper course upon such an event seems to be, that in case of his dying intestate, some person should take out general administration to the original testator, or if the former executor made a will appointing an ex- ecutor capable of acting, such executor should obtain probate, so as to represent the original testator ; and then such administrator or executor, being considered within the true meaning, though not the strict letter of the statute, may apply to be made a party to the suit in equity ; and the court of equiby will then put an end to the authority of the special administrator in the same way as if the original executor had returned to this country. (6) In Suwerkrop v. Day, (c) an action was brought to recover a sum of money, for the interest of a debt which had been due to one Hu- bert Fox, in his lifetime, from the defendant, and was paid, but without the interest, in December, 1833. Fox, who was a merchant in Demerara, died in May, 1830, and left one Owen Kernan his executor. Kernan, who was then in Demerara, sent a power of at- torney to Allan McDonald, in England, to enable him to prove the will there. Administration with the will annexed was granted to McDonald for Kernan's benefit ; and he acted in settling the af- fairs. Kernan died in Demerara, in August, 1831, not having ad- ministered all the effects of Fox, and left one Hewlings and one McDowall his executors. In September, 1838, Hewlings being then abroad, and McDowall being dead, administration with the will annexed to the goods of Kernan was granted to the plaintiff, as Hewlings' attorney, for the use and benefit of Hewlings. The like administration with the will annexed was also granted him to the goods not administered of Fox. Allan McDonald was living when the action was brought. There was evidence that the defend- ant had, by letter and otherwise, admitted Kernan, in his lifetime, to have a claim for principal and interest, as * executor of Fox. The action was brought by the plaintiff, describing himself as ad- ministrator with the will annexed, of Hubert Fox, of the goods left unadministered by Owen Kernan, who was executor of Hubert Fox, and who was alleged to have proved the will by Allan Mc- Donald, his attorney, to whom, as such attorney, administration (a) Taynton u. Hanuay, 3 Bos. & Pull, and see the judgment of Chambre J. in 8 26. Bo3. & Pull. 34. {h) Rainsford v. Taynton, 7 Ves. 460 ; (c) 8 Ad. & El. 624 ; 3 N. & P. 670. [510] [511] CH. III. § v.] OF ADMINISTRATION DURANTE ABSENTIA. 573 with the will annexed, for the benefit of the said Owen Kernan, was granted, which Owen Kernan was since deceased, having left McDowall and Hewlings, his executors ; and that on McDowall's death, the plaintiff took administration, with the will of Hubert Fox annexed, for the benefit of Hewlings. The first count of the declaration stated that the defendant was indebted to Owen Ker- nan, as executor as aforesaid, for interest of money forborne by him as such executor, and laid the promise to Owen Kernan, as such executor. The second count stated that the defendant was indebted to the plaintiff, as such administrator, for interest of money forborne by him as such administrator, and laid the prom- ise to the plaintiff as such administrator. Profert was made of the letters of administration both to McDonald and to the plain- tiff. The first plea traversed the being indebted to Owen Kernan as such executor. The second traversed the promise to Owen Kernan. The third traversed the promise to the plaintiff. The question in the cause was, what was the legal effect of these differ- ent letters of administration ? The court of king's bench was of opinion that, by the first grant, Allan McDonald became the legal representative of Hubert Fox during the life of Owen Kernan, or, at all events, until he should himself take out probate, which he never did ; but that on the death of Owen Kernan, that grant was ipso facto at an end, and the subsequent grant to the plaintiff was good; and that the consequence was, that the plaintiff was en- titled to recover on the second count all interest accruing subse- quent to the grant to him ; but that the defendant was entitled to a verdict on both the issues on the first count, because the de- fendant never was indebted to Owen Kernan as executor, for in- terest, nor promised him as executor. * In the case of an action brought by an administrator durante absentid appointed independently of the statute, the dec- How ad- laration must aver that the executor at the time of the ^™ra™'*"^ grant of administration was absent, and that his absence '^^^''^^^_ continues. If there is an averment of his absence, with- ciare. out saying where, the court will intend it to be an absence beyond sea. (Ji) (h) Slater v. May, Ld. Raym. 1071. In been ruled that the declaration was good, Hodge V. Clare, as reported in 4 Mod. 14, and the defendant ought to plead it, if the upon an objection that the continuance of executor had returned. But it appeared in absence was not averred, it is said to have Slater v. May, that the roll of Hodge v. [512] 574 OF TEMPOEAEY ADMINISTRATIONS. [PT. I. BK. V. In an action on a policy of insurance, brought by an adminis- Admis- trator appointed under the statute, evidence was ten- sions of dered by the defendants of declarations made by the ex- GX6CU.tor not evi- ecutor, whilst he was executor and before the proceed- against the ings had taken place for having the present plaintiff to^A^alTe appointed special administrator. But Lord Denman re- mmontate. fygg(j j;q receive the evidence, saying that the acts of the original executor, done by him in that capacity, might be admis- sible in evidence against the plaintiff, who had succeeded durante absentid to the office of executor ; but that, in his opinion, the mere declarations of the executor did not stand on the same foot- ing. (0 * SECTION VI. Of other Temporary and Limited Administrations. There are several other instances of temporary administrations, Temporary granted as well cum testamento annexo as in cases of administra- ° . tions; complete intestacy. It has already appeared that an executor may be appointed cum testa- with limitations as to the time when he shall begin his nexo: otiice, as where a man is appomted to be executor at the expiration of five years from the death of the testator, (/c) in case of So the testator may appoint the executor of A. to be KmSas"^ his executor ; and then if he die before A. he has no ex- totime: ecutor till A. die. (I) In these cases, if the testator does not appoint a person to act before the period limited for the commencement of the office, the court must commit administration limited until there be an ex- ecutor, (m) It is plain that this will be an administration cum testamento annexo, and the appointment made according to the rules connected with that sort of grant, (n) Clare was searched and there was a full ports ; they will make us appear to poa- averment that the executor was in partihus terity for a parcel of blockheads." transmarinis ; so that in truth the objec- (t) Rush v. Peacock, 2 Moo. & Rob. tion, instead of having been overruled, 162. could not possibly have been made. On {k) Ante, 249. which occasion, Holt C. J. said ; " See the {I) Ante, 249. inconveniencies of these scrambling re- (m) Godolph. pt. 2, c. 30, a. 5. [513] (n) See ante, 461 et seq. CH. III. § VI.] OF LIMITED ADMINISTRATIONS. 575 So it may be necessary to decree a limited administration till the will of tbe deceased can be produced in order to be ^^^^j ; j^. _ admitted to probate. Thus where the deceased, a few H""^ , .„ ■-. . limited till days before his death, stated that he had made his will a will be whilst in India ; and that the same was then remaining mitted to there; administration was applied for "limited for the '"s'and: purpose of receiving and investing the interest and dividends due or to become due on certain stock of the deceased, and for receiv- ing and investing the amount of an India bill, and for otherwise protecting the property of the deceased," "until the last will and testament of the said deceased, or an authentic copy thereof, should be transmitted to this country." Sir John Nicholl, on the consent of all parties apparently * interested, granted the administration, and the learned judge observed, that the de- ceased could not be sworn to have died intestate, having, accord- ing to his own declaration, left a will in India. An administration pendente lite was out of the question, as no suit in the spiritual court was or ever might be pending. Nor could there be an ad- ministration as durante absentid or minoritate of an executor ; for non constat who the executor was. At the same time a long inter- val must elapse before the will would be forwarded from India, in which interval it was material there should be some one to protect and manage the property ; and, therefore, the court complied with the application, (o) The circumstances attending the administration of the effects of Sir Theophilus John Metcalfe, in the course of which the adminis- tration just mentioned was granted, afford some further examples, in subsequent stages, of limited administrations, which it may be perhaps advisable to introduce here. The administration, limited as above stated, was decreed in December, 1822, to two persons, Edward Larkin and William Monson, Esqrs., and it ceased and determined shortly afterwards, a copy of the said will having been actually forwarded to this country. The deceased, by his will, appointed his brother (Sir Charles Theophilus Metcalfe) of Hydrabad, Charles Magniac, and George Sanders, Esqrs., both of Canton, and the said Edward Larkin, Esq., his executors, and his daughter, Eliza Metcalfe, a minor, aged about sixteen years at the time of his death, residuary legatee. In March, 1823, a bill was filed in the high court of chancery, (o) In the Goods of Metcalfe, 1 Add. 343. [514] 576 OF TEMPORARY ADMINISTRATIONS. [PT. I. BK. V. wherein the said minor, by David Howell (party in the cause), was plaintiff, and the said Edward Larkin and William Monson were defendants ; and, by an order made in the said cause, Mr. Howell was appointed guardian of the person and property of the minor, until she attained her age of twenty-one years. * In the month of March, 1824, letters of administration (with limited to *^® ^^^^ °°PJ °^ ^^^ "^'^^^ annexed) of the goods of the fntofhe deceased were granted, by authority of the prerogative name of court, to the Said David Howell, " limited to the purpose accountaat ,» n-n f i ^ ii general: Only of transferring all sums of money due and payable to the deceased, from the Governor and Company of the Bank of England, from the London Dock Company, from the Com- pany of Merchants trading to the East Indies, and from the Globe Insurance Company respectively, to the name of the ac- countant general of the court of chancery." (p) But this last administration also ceased and determined, viz, on the arrival of Mr. Magniac, one of the executors, in this country. Mr. Magniac, however, subsequently died here, but without hav- ing taken upon himself the probate, or having, in any manner, interfered in the trusts of the said wiU ; and of the other execu- tors, two were still in India, and the third, Mr. Larkin, had re- nounced the probate and execution of the will. Under these circumstances, a decree was extracted at the instance limited till of the said David Howell, Esq., calling upon the execu- aiTival of ^ ^ 7X7 o 1 executors: tors in India to accept or refuse probate of the copy of the said will aforesaid, otherwise to show cause why letters of administration (with such copy annexed) of the goods of the deceased should not be committed and granted to the said David Howell, Esq., as the guardian of the said Eliza Metcalfe, and for her use and benefit, "limited until she should attain her age of twenty-one ; or until the original will and codicil should be transmitted to this country ; or until the arrival here of the said executors both or either of them, (^q) * The decree was returned into court, duly executed by a service on one of the pillars of the Royal Exchange, &c. and no appear- (p) Howell V. Metealfe, 2 Add. 348. if he does not come in, the ordinary may (?) See, also, 1 Gibs. Cod. 574, where it grant a temporary administration, until is said that though there be no suit or con- the executor comes in and proves the troversy depending touching the executor- will. ship, and though there be an executor, yet [515] [516] CH. III. § VI. J OF LIMITED ADMINISTRATIONS. 577 ance being given, and the fects, as above stated, being duly veri- fied by exhibits and afiidavits, the court was moved, in the first instance, to decree administration according to the tenor of the said decree ; but in the event, either of its declining so to do, or of its requiring, in that case, that the securities should justify, then, to decree letters of administration* to the said David Howell, Esq., limited for the purpose only of " receiving and collecting the out- standing personal estate and effects of the deceased, and from time to time, when so received, of investing the same in the name of the accountant general of the court of chancery ; and, farther, for the purpose of duly administering the estate and effects of the deceased, according to trusts of the said will, by and under the directions of the said high court of chancery." The court, as not thinking itself authorized to dispense with the securities justifying, in the event of its decreeing administration according to the tenor of the decree, was pleased to decree letters of administration, &c. to Mr. Howell, limited, as prayed, in the other alternative, on his exhibiting an inventory, and giving the usual security, (r) The administration so decreed was not extracted, owing to cer- tain circumstances which it is not necessary here to detail, but the grant was abandoned ; Mr. Howell, however, as prochein amy of the minor, Miss Metcalfe, had filed a bill in chancery against two of the surviving executors of the will of the deceased, and pro- ceedings in that, suit were stayed by there being no legal repre- sentative of the deceased to be made a party to the suit. Accord- ingly, on the first session of Easter term, 1825, the court on this statement, duly verified, was moved (and was pleased) to decree letters of administration of the goods, &c. of the deceased, to a nominee of Mr. Howell, "limited to the purpose only of limited to * answering to the said suit in the court of chancery;" g"?^^^''^ which limited administration was afterwards extract- chancery: ed. (s) Where a will, proved to have been in existence after the tes- tator's death, is accidentally lost, and the contents limitedtm unknown, the court will grant administration limited be found: until the original will be found and brought into the regis- try. (0 (r) 2 Add. 351. (t) In the Goods of Campbell, 2 Hagg. (s) 2 Add. 351, note (a). 555. vol.. I. 37 [517] 578 OF TEMPOEAEY ADMINISTRATIONS. [PT. I. BK. V. If the executor be disabled from acting, as if he becomes luna- limited *i°' °^ incapable of legal acts, then, on the principle of ne- duringthe ccssity, there shall be a grant of a temporary administra- of the ex- tion with the will annexed, (m) Where a sole executor adminis- or administrator becomes a lunatic, it is the ordinary nTxt or practice of the court to make a limited grant to his com- kin, &c. mittee, for his use and benefit, during his lunacy, (w) By the consent, given or implied, of the committee of the lunatic, administration with the will annexed may be committed to a resid- uary legatee, during the lunacy of the executor, (x) It was also the practice of the ecclesiastical court to grant ad- ministration for the use and benefit of a lunatic, though the per- son alleged to be so has not been found a lunatic by inquisition. When such a case occurred, the ecclesiastical court required aflBda- yits, stating the fact of lunacy, and that no inquisition has been had, and, of course, no committee appointed. The court then granted administration to the next of kin of the lunatic, for the use and benefit of the lunatic pending the lunacy, and it required sureties in double the amount of the property, and such sureties must have justified. («/) * Where administration had been granted of an intestate's effects ■to a creditor for the use and benefit of the widow, a lunatic, on the renunciation of her children ; on the death of the creditor, leaving goods unadministered, the widow surviving and still lunatic, the court refused to grant administration de bonis non to a son of the deceased, who had retracted his renunciation ; but granted it to him for the use and benefit of the widow, during her lunacy, he (m) Hills V. Mills, 1 Salk. 36 ; Toller, 134 ; S. C. 7 Notes of Cas. 305, 306. Ad- 99 ; Anon. 1 Cas. temp. Lee, 625 ; 2 Eob- ministration of the effects of a Jew was ert. 13*; S. C. 7 Notes of Cas. 305 ; ante, granted to the secretary of the great syn- 484. These are termed in 1 Oughton, tit. agogue, for the use and benefit of the next 219, s. 1, note (a), " Literce administra- of kin (a Jewess) who was of unsound tionis durante corporis aut animi vitio." mind, during her lunacy, her next of kin («) In the Goods of Phillips, 2 Add. having been first cited. In the Goods of 336, note (6). Joseph, 1 Curt. 907. In a modern case (x) In the Goods of Milnes, 3 Add. administration with the will annexed de 55. bonis non was granted to the executors of {y) See Ex parte Evelyn, 2 My. & K. 4, a sister, the administratrix, deceased, for where the practice was laid down, as above the use and benefit of the surviving sister, stated, by Lord Brougham C, from a com- the sole next of kin, during her imbecility, munication made to him by Dr Lushing- without citing her next of kin. In the ton. See, also, Evans v. Tyler, 2 Robert. Goods of Southmead, 3 Curt. 28. [518] CH. III. § VI.] OF LIMITED ADMINISTRATIONS. 579 giving justifying security to tlie amount of the goods unadminis- tered. (z) In another case, (a) thp deceased died intestate in October, 1826, leaving his widow and several children him surviving. In the following November administration was granted to his widow, who, in November, 1832, became a lunatic. In May, 1836, the court was prayed to revoke the administration granted to the widow, and to grant an administration to the son of the deceased. The court declined to revoke the administration ; but granted ad- ministration to the son, limited during the lunacy of the widow, the letters of administration theretofore granted to her being first brought in and impounded in the registry, in order to be re- delivered out in case of her recovery. If an executor, who is also residuary legatee in trust, be incapa- ble, and no committee is appointed, the cestui que trust may obtain administration under certain circumstances. (5) In a modern case, one of two executors had renounced, and the other was a lunatic under confinement, and there was no * committee of her person and estate. The court refused to grant administration to the residuary legatee, the daughter, during the lunacy of her mother, without the sureties in the bond justifying ; no reason being given for the renunciation of the co-executor, nor any obstacle assigned to the formal appointment of a committee, to whom the adminis- tration for the use of the widow would regularly be granted, (e) Until the year 1824, In the Goods of Phillips, (c^) no case of an application to the court to supply a defect in the Case of one legal representation of a party deceased, occasioned by admlnS*^ the lunacy of one of his several administrators, is be- ^'^^^°P ^^- *} ' coming lieved to have occurred. In that case one of three lunatic. administrators, cum testamento annexe, was found to be a lunatic under a commission from the court of chancery, and committees had been appointed. There were standing in the name of the deceased, in the books of the bank of England, certain sums, his property; but of which neither the interest could be received nor the principal stock transferred, as directed by the will, in (z) In the Good of Penny, 4 Notes of (6) In the Goods of Crump, 3 Phillim. Gas. 659. 497. {a) In the Goods of Binctes, 1 Curt. (c) In the Goods of Hardstone, 1 Hagg. 286. 487. (d) 2 Add. 335. [519] 580 OF TEMPORARY ADMINISTRATIONS. [PT. I. BK. V. consequence of such lunacy, (e) Under these circumstances, the court directed that upon the letters of administration already granted being brought in by the two sane administrators and the committees of the third, letters of administration de bonis non, &Ci should, by consent of the said committees, issue de novo to the two former administrators only. (/) On the authority of this decision, the court ordered, in a case where one of two joint administrators had become imbecile and incapable of acting, that the joint letters of administration, having been brought into the registry, should be revoked, and special letters of administration granted to the sane administrator, without justifying securities. (^) On- * another occasion, (A) the deceased had appointed two ex- ecutors, and probate had been granted to one, with a power re- served of making the like grant to the other. The executor who had obtained the grant became a lunatic, and a transfer of the deceased's stock at the bank could not, in consequence, be ob- tained. A double probate was taken by the other executor, and the court was prayed to revoke the probate granted to the lunatic, it having become inoperative. The court directed both probates to be brought in and then revoked them, and granted a fresh pro- bate to the other executor, and therein reserved a power of making a like grant to the lunatic executor, when he should become of sound mind and apply for the same. There may also be a grant of administration limited to certain Adminis- Specific effects of the deceased ; and the general admin- ited to a™" istration may be committed to a different person. But particular it should seem that this sort of grant is entirely excep- tional, and should not be made unless a very strong reason be given, (i) Two administrations may well subsist together when there is no if there is executor. But it should be observed that, regularly, no tor there administration of any sort can be granted when there is (e) See post, pt. v. bk. ii. ch. ii. as to (h) In the Goods of Marshall, 1 Curt, the provisions of the stat. 1 W. 4, t. 60 297. (An act for amending the laws respecting (i) In the Goods of "Watts, 1 Sw. & Tr. conveyances and transfers of estates and 538; In the Goods of Somerset, L. K. 1 funds vested in trustees and mortgagees, P. & D. 350. See, for an instance where ^'^■)- such a grant is proper. In the Goods of (/) 2 Add. 336. Dodgson, 1 Sw. & Tr. 259 ; [Jordan «. is) In the Goods of Newton, Curt. Polk, 1 Sneed, 430; McNairy v. Bell, 6 428. Yerger, 302.] [520] CH. III. § VI.] OF LIMITED ADMINISTRATIONS. 581 an executor appointed ; for he is universi juris hceres to can be no . , . ., admmis- his testator. Therefore, where A. made his will, and trator: appointed B. his executor, and by deed gave part of his estate to C. ; and C. obtained in the prerogative court a limited adminis- tration to the deed only ; the judges delegate set aside the grant of this administration on appeal. (/ ) It frequently happens that the personal administration of a party deceased is broken, and its revival is necessary , . . r J ' ^ J adminis- merely for the performance of a single act. In such trationlim- cases, * administration de bonis non will be granted, lim- assign a ited to that particular object. For instance, when the representatives of a trustee, in whom a term of years or charge was vested, are dead, a limited administration to another trustee is requisite for the purpose of making an assignment, and will be granted limited accordingly. (Ic) So where a testator J? ^.P^j" leaves the dividends on certain stock in the public funds acy: to a legatee for life, and, after his decease, the whole property to another, and makes the legatee for life executor, who dies intes- tate, administration de bonis non, with the will annexed, may be obtained by the representative of the substituted legatee, limited to the sum in the funds and the dividends due thereon since the death of the legatee for life. Q') So administration with a will annexed was granted to the joint nominees of two charitable in- stitutions to whom legacies, expectant on life interests, had been bequeathed, but limited to a fund appropriated for payment of the legacies ; the parties entitled to a general grant having been cited and not appearing, (w) (j ) Coswall V. Morgan, 2 Cas. temp, sion, it appeared that a party had remitted Lee, 571 ; but see post, 526. from India a bill of exchange payable to (k) In cases where the original trustee the order of the deceased. The bill was died testate, it was not the practice of the accepted, but previous to its arrival the prerogative office to annex the will to an deceased died intestate, and his widow and administration granted for this purpose, children renounced administration. A In the Goods of Fenton, 3 Add. 36, note grant was applied for to the nominee of the (a). It is not sufficient, in order to make remitter of the bill, limited to receive and out a title to the term, to refer to deeds de- give a discharge to a third party for it. ducing such title in affidavits. The deeds But the court refused the motion, on the themselves must be brought into the reg- ground that it was in fact an application istry. In the Goods of Keene, 1 Sw. & for a limited administration to be granted Tr. 265. to the nominee of a debtor. In the Goods {I) In the Goods of Steadman, 2 Hagg. of Lord Rivers, 4 Hagg. 355. 59. But see In the Goods of Watts, 1 (m) In the Goods of Biou, 3 Curt. 739. Sw. & Tr. 539 ; ante, 520. On one occar Where there are several parties interested [521] 682 OF TEMPORARY ADMINISTRATIONS. [PT. I. BE. V. limited to * Again, an administration may be granted, limited to proceed- , ^ . ,. ■ , ? n ings in substantiate proceedings m chancery, (n) c ancery. "vyhere a pressing necessity for carrying on proceed- ings in chancery is shown, the court will grant administration limited to filing a bill in equity, (o) Again, if a debt by a covenant or obligation binding the heir of the debtor, is demanded in equity against the real assets in the hands of a devisee, under the statute 3 & 4 W. & M. c. 11 (re- pealed and reenacted with additional provisions by stat. 1 W. 4, c. 47), the personal representative of the deceased debtor is gen- erally a necessary party to the suit, as a court of equity will first apply the personal in exoneration of the real assets, (p) And when there has been no general personal representative, a special representative by an administration limited to the subject of the suit has been required, (g') In other cases where a demand is made against a fund entitled to exoneration by general personal assets, if there are any such, a like limited administrator is fre- quently required to be brought before the court. This seems to be required rather to satisfy the court that there are no such assets to satisfy the demand ; for although the limited administrator can collect no such assets by the authority under which he must act, yet as the person entitled to general administration must be cited in the ecclesiastical court, before such limited administration can be obtained, and as the limited administration would be deter- mined by a subsequent grant of general administration, it must be presumed that there are no such assets to be collected, or a general administration would be obtained, (r) So where a claim on property in dispute would vest in the * personal representative of a deceased person, and there is no general personal representative of that person, an administration limited to the subject of the suit may be necessary to enable the court to proceed to a decision on the claim. And when a right is clearly vested, as a trust term, which is required to be assigned, in the fund, the grant will be limited to 62 ; Maclean v. Dawson, 1 Sw. & Tr. 425 ; the interest of the cestui que trust making Hawarden v. Dunlop, 2 Sw. & Tr. 614. the application, unless the other cestuis que (o) Woolley v. Gordon, 3 Phillim. 315 ; trust assent to the grant extending to their In the Goods of Dodgson, 1 Sw. & Tr. 259. respective interests. Pegg b. Chamberlain, {p) See Mitford Plead. 176, 4th ed. ; 1 Sw. & Tr. 527. post, pt. IT. bk. i. ch. ii. § i. (n) In the Goods of the Elector of Hesse, (?) Mitf. Plead. 177, 4th ed. 1 Hagg. 93 ; Harris v. Milburn, 2 Hagg. (r) lb. [522] [523] CH. III. § VI.] OF LIMITED ADMINISTRATIONS. 583 an administration of the efiEects of the deceased trustee limited to the trust term is necessary to warrant the decree of the court for assignment of the term, (s) But 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 must itseK 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 the will of 1815 and its codicils, as together containing the will, (t) It may be here observed, that in these cases the court will not grant a general administration, but only an administration limited for the purpose of substantiating and carrying on the proceedings in chancery. On one occasion (u) a defendant in a suit in equity hav- ing died intestate, Sir H. Jenner Fust refused to make a general grant of administration to a nominee of the plaintiffs in the suit, though the vice chancellor (Sir L. Shadwell) had held (x) that an administration limited to substantiate proceedings (which had been previously granted) was insufficient, and had directed the cause to stand over to * enable the plaintiff to cure the objection by obtaining a general grant. But this decision of the vice chancellor was afterwards the estate overruled by Lord Cottenham, on a careful conisderation "^^^^^ \l' of the authorities ; (y) and it appears to be now settled, P^^^^nt- that if the grantee of such limited letters is made a party ? ground of laches, Godwin v. Knight, 6 tingill, 60 Maine, 411.] Notes of Cas. 261 ; S. C. 1 Robert. 652. (m) The learned judge, in the course (p) Parker w. Young, 6 Beav. 26 1 . of his judgment referred to the case of (?) See the judgment of Romilly M. Thomas v. Archbishop of Canterbury, 1 E. in Bolton v. Powell, 14 Beav. 275, 287 ; Cox, 399 (see infra, 544), as having some- and of the Lord Justice Lord Cranworth, [537] CH. IV.J OF THE ADMINISTRATION BOND. 603 If the object was to enforce the bond against the sureties, the question for the court, as it was considered in a case before Sir John Nicholl, was not properly the ultimate responsibility of the sureties; it was rather generally the mere fact of whether the bond was or was not forfeited ; leaving it to the sureties to plead or prove in the court of law, if they were capable of so doing, that the parties putting it in suit were, by their own laches, or otherwise, not in a condition to recover on the bond, notwith- standing its forfeiture, (r) It appears, moreover, that the more correct practice of the * ecclesiastical court was to decline to pro- nounce the bond forfeited ; for it appertains to the court, in which the bond is sued, to decide ultimately whether any breach of its condition has taken place. It was only necessary for the spir- itual judge, in aid of justice, to order the bond to be attended with, for the purpose of being put in suit, (s) The court would, under special circumstances, direct the bond to be attended with, as well if sued upon in a court of whether equity as if put in suit in a court of law. (f) But the fngs'^on" proper course of enforcing the bond was "for the cred- eouid°be^ itor or next of kin, as the case may be, to bring an ac- bad in a tion on the bond in the name of the ordinary, or his equity: representatives, after obtaining permission so to do from the spir- itual court, against the obligors. (Jp) And no suit for this purpose has ever been instituted against them, in the first instance, in a court of equity, (m) Even where the administrator, who is the obligor, is dead, it has been held that the administrator de bonis non of the original intestate cannot sue in a court of equity upon or enforce the bond against the estate of the original administra- tor, or against the sureties to the bond, at all events unless the S. C. 2 De G., M. & G. 1, 25 ; and of Sir (s) Younge v. Skelton, 3 Hagg. 780, H. Jenner Fust in Godwin v. Knight, 6 788, 790 ; Godwin v. Knight, 6 Notes of Notes of Gas. 261, 266, Gas. 261, 263, 264. The regular course (r) Devey K. Edwards, 3 Add. 68. See, of practice, in the ecclesiastical court, with also, Hunt v. Burton, 6 Notes of Gas. 268. respect to applications for the putting in But where it clearly appears that the party suit of administration bonds, is stated at making the application to the court has large by Sir John Nicholl, in his judg- no right to sue on the bond, the court will ment in 3 Hagg. 786, 787. not hesitate to reject the application. (() In the Goods of Harrison, 2 Robert. Drewe v. Long, 18 Jur. 1062, by Sir John 184. Dodson, [See DunnelH-. The Municipal (t^) [See anie, 534, note (,9^).] Court of the City of Providence, 9 R. I. (w) 14 Beav. 286; 2 De G., M. & G. 22. 189.] See;)os«, 543, note (?). [538] 604 OF LETTERS OF ADMINISTRATION. [PT. I. BK. V. suit be instituted in the name of the ordinary, or he has declined to allow his name to be used, or there are some very special cir- cumstances to give the court of equity jurisdiction. («) And it is by no means to be assumed that the ordinary himself could have sued, even if the suit had been instituted in his name, (a;) A distinction was once taken, between a next of kin and a cred- who were itor, as to the right of suing on the bond in the name of lue'onlhe the Ordinary, {y) But the better authorities seem to namVofthe ^^'^^ established that a creditor had a right ex dehito ordinaiy justitice, as well as the next of kin, to sue upon the admin- executor, istration bond in the name of the ordinary, (s) If the dead). ordinary was dead, the action must have been brought in the name of his personal representative, and not of his succes- sor, (a) If the original administrator were dead, and administration de Adminis- ionts fion had been obtained, it was held that such ad- trator de bonis non: ministrator might sue the executors oi the deceased ad- ministrator at law on the administration bond iu the name of the ordinary ; and thfe court would order the bond "to be at- tended vnth " in the common law court, and produced at the hear- ing of the cause. (6) (u) Bolton V. Powell, 14 Beav. 275 ; 2 ered ; but all the authorities go to show De G., M. & G. 1 ; [post, 537, and note that creditors cannot put the bond in suit (6).] and assign for breach of non-payment of (x) 14 Beav. 290, 291. their debts. SeeposJ, 540. iy) Wallis v. Pipon, Ambler, 183 ; Ash- (a) Howley v. Knight, 14 Q. B. 240. ley V. Baillie, 2 Ves. sen. 368. See, also, (b) In the Goods of Hall, 1 Hagg. 139. Hughes V. Cook, 1 Gas. temp. Lee, 386, [It has been held under statutes in some and Hackman v. Black, 2 Gas. temp Lee, of the American States that where an ad- 251, in which cases Sir G. Lee laid down ministrator de bonis non, with or without that a creditor has nothing to do with the the will annexed, has been appointed to administration bond, and no interest in it, succeed an executor or administrator and that it had been so decided. [As to whose letters have been revoked, he has au- the interest enabling a party to institute thority to require the removed executor or a suit on the bond, see ante, 534, note {g^), administrator to account fully for his ad- 536, note (/).] ministration of the estate, and may main- {z) Greenside v. Benson, 3 Atk. 248 ; tain all necessary actions for that purpose ; Archbishop of Canterbury u. House, Cowp. and may, moreover, recover damages of 140. It has been decided by these two him for any maladministration of the cases (said Lord Lyndhurst C. B. in the estate ; Marsh v. The People, 15 111. 284 ; Archbishop of Canterbury v. Robertson, 1 Weld v. M'Clure, 9 Watts, 495 : Wick- Cr. & M. 711 ; 3 Tyrwh. 417), and it has ham v. Page, 49 Missou. 526 ; Common- been the practice, and has been considered wealth v. Strohecker, 9 Watts, 479 ; as law, that creditors may sue on the bond Drenkle v. Sharman, 9 Watts, 485 ; Car- where the inventory has not been deliv- ter v. Trueman, 7 Penn. St. 320 ; Bland [539] OH. IV.] OF THE ADMINISTRATION BOND. 605 It remains to be considered what is a breach of the what is a condition of a bond given under the statute of Charles, the «)nai- Ch. in Hagthorp v. Hook, 1 Gill & J. 270 ; Coleman u. M'Murdo, 5 Rand. 51 ; post, 915, and note, 918, and note; Graham u. State, 7 Ind. 470 ; State u. Porter, 9 Ind. 342 ; Shackleford i/. Bunyan, 7 Humph. 141; Stair v. York National Bank, 55 Penn. St. 364; Baldwin v. Dearborn, 21 Texas, 446; Boulware v, Hendricks, 23 Texas, 667 ; Hardwick v. Thomas, 10 Geo. 266; O'Connor v. The State, 18 Ohio, 225 ; King v. Devon, 6 Phil. (Pa.) 551 ; Foster v. Brown, 1 Bailey, 221 ; Miller v. Jasper, 10 Texas, 513 ; Parrish u. Brooks, 4 Brews. (Penn.) 154; and may receive an ascertained balance in the hands of the former administrator. Lit- tle 1/. Walton, 23 Penn. St. 164; Miller V. Alexander, 1 Hill Ch. 25 . So he may maintain an action against the sureties of the removed executor or administi'ator to recover such balance admitted or proved to be dne, without first obtaining judg- ment against the principal. Franklin County V. M'llvain, 5 Ohio, 200 ; Wick- ham V. Page, supra ; Badger v. Jones, 66 K Car. 305. But it is said, that " by the English law as administered in the eccle- siastical courts, the administrator who is displaced, or the representatives of a de- ceased administrator or executor intestate, are required to account directly to the persons beneficially interested in the estate, distributees, next of kin, or creditors ; and the accounting may be made or enforced in the probate court which is the proper court to supervise the conduct of adminis- trators and executors." " For the delin- quency of the former administrator in not prosecuting claims which it was his duty to prosecute, he is responsible to the cred- itors, legatees, and distributees directly, and not to the administrator de bonis nan." " This," says Bradley J. in Beall v. New Mexico, 16 Wallace, 540, 541, "is the re- sult of the authorities referred to. And it follows that, as the administrator de bonis non has no claim against the former admin- istrator on this ground, he cannot prose- cute for it on the administration bond." The case In the Goods of Hall, 1 Hagg. 139, relied upon to support the doctrine stated in the text, was one, says the same learned judge, " in which the first admin- istrator died without having distributed the assets in his hands, and leaving a con- siderable balance of the estate in the hands of his bankers. The administrator de bonis non having applied to the executors of the deceased administrator for his balance, and payment being refused, he commenced the action on the former administrator's bond, and the prerogative court sanctioned the proceeding. But this case was undoubt- edly founded on the theory that the money in bank was a part of the original estate in specie, and, as such, that the admin- istrator de bonis non was entitled to it. If specific effects of the estate remain in the hands of a discharged administrator or executor, or in the hands of his represen- tatives, of course the administrator de bonis non is entitled to receive them. And, if they are refused, he will be the proper person to institute suit on the bond to recover the amount. But this is perfectly consistent with the doctrine above ex- pressed, that for delinquencies and devas- tavits he cannot sue his predecessor or his predecessor's representatives, cither di- rectly or on their administration bond." 16 Wallace, 541, 542. Such is the pre- vailing rule where the law has not been changed by statute. See post, 915, note (c) ; Gregory u, Harrison, 4 Florida, 56 ; Bank of Pennsylvania v, Haldaman, I Pen. & W. 161 ; Kendall c. Lee, 2 Pen. & W. 482 ; Carter v. Trueman, 7 Penn. St. 315; In re Small's Estate, 5 Penn. St. 258; Thomas v. Stanley, 4 Sneed, 411 ; Adams v. Johnson, 7 Blackf 529 ; John- son V. Hogan, 37 Texas, 77 ; Coleman v. M'Murdo, 5 Rand. 51 ; Stose v. People, 25 111. 600 ; Rowen v. Kirkpatrick, 14 111. 1 ; American Board of Commis. for Foreign Missions Appeal, 27 Conn. 344; Young V. Kimball, 8 Blackf. 167 ; State v. Porter, 606 OF LETTERS OF ADMINISTRATION. [PT. I. BK. V. tion of the '^^ ^^ *° induce a forfeiture. (6^) It may be well as- bond given signed as a breach, that the administrator has not deliv- underthe ° » . statute of ered a true and perfect inventory, (c) or that he has not made a just and true * account, (ci) and either of these 9 Ind. 342 ; Graham v. State, 7 Ind. 470 ; Searles v. Scott, 14 Sm. & M. 94 ; Cheat- ham V. Burfoot, 9 Leigh, 580 ; Waddy v. Hawkins, 4 Leigh, 458 ; Haglhorp v. Hook, 1 Gill & J. 270 ; Smith v. Carere, 1 Rich. Ch. 123; Stubblefield i;. M'Raven, 5 Sm. & M. 130; Hardwick u. Thomas, 10 Geo. 266 ; Potts V. Smith, 3 Ravvle, 361 ; Brownlee v. Lockwood, 20 N. J. Eq. 239 ; Demert v. Heth, 45 Miss. 388 ; Reeves v. Patty, 43 Miss. 338. It is held in Missis- sippi that balances found against an orig- inal administrator, upon final settlement of his account, should, if for distribution, be decreed to be paid to the distributees, and not to the administrator de bonis non. Gray v. Harris, 43 Miss. 421.] (i') [As to the rules by which a probate bond is to be construed, see Judge of Pro- bate V. Ordway, 23 N. H. 198, 205, 206.] (c) Greenside v. Benson, 3 Atk. 252, 2.53. [Edmundson v. Roberts, 2 How. (Miss.) 822.] Likewise in an action upon the bond, it is not enough for the defend- ant, in order to show the condition, as to exhibiting the inventory on such a day, performed, to plead that there was no court held, but he must plead also that he was there ready, &c. for he must show that he has done all that could be done on his side towards a performance. 1 Salk. 172. Assuming that it is a sufficient ex- cuse that no court was held on the day specified, this must be pleaded iu excuse of performance, and cannot be pleaded to a suggestion of breaches, or given in evi- dence before a jury on the trial of breaches suggested on the roll, under the stat. 8 & 9 W. 3, 1. 11, s. 8; 1 Cr. & M. 690; 3 Tyrwh. 390. [An omission on the part of an administrator to include in his inven- tory, within the time prescribed by statute, an amount of money deposited in a sav- ings institution, known by him when he accepted his trust to belong to the estate [540] of his intestate, is a breach of his official bond ; and u citation to the administra- tor to inventory such property is not a necessary prerequisite to a right of action upon his bond, for knowingly omitting to inventory it. Bourne v. Stevenson, 58 Maine, 499. In delivering the opinion of the court in Potter v. Titcomb, 2 Fairf. 167, Weston J. said ; "The law of Massa- chusetts, in force when the bond was given, clearly made it the duty of the adminis- trator, within three months, to cause an inventory to be made of the estate of the deceased. And, by the condition of the bond, it was to be a true and perfect in- ventory of all and singular the goods, chattels, rights, and credits of the deceased, which have or shall come to the hands, possession, or knowledge of the adminis- trator. The judge of probate has no power to dispense with this duty. His au- thority was limited by law ; and the bond was for the security of all persons inter- ested in the estate. No citation in the probate court was necessary, as the court has holden in this case, to render the administrator liable upon his bond for not returning a true and perfect inventory." Potter V. Titcomb, 1 Fairf. 53.] {d) Archbishop of Canterbury v. Willis, 1 Salk. 172, 315; S. C. 11 Mod. 14.5. [A failure to settle an account is a breach of the probate bond in New Jersey. Ordi- nary V. Barcalow, 7 Vroom, 15 ; Dicker- son V. Robinson, 1 Halst. 195 ; Ordinary v. Hart, 5 Halst. 64 ; ante, 536, note {I). A decree of the probate court, that an ad- ministrator ought to render his account, is regarded as furnishing sufficient basis for a suit upon the bond given to secure per- formance of the orders of the court. French u. Winsor, 24 Vt. 402. A settle- ment, out of court, between the heirs and the administrator of an estate, is not a compliance with the condition of the bond, CH. IV.] OF THE ADMINISTRATION BOND. 607 breaches will be incurred without any previous cita- tion, (e) But with respect to the breach of the condition that the administrator " do well and truly administer ac- cording to law " the goods, chattels, &c. of the deceased, it is no ground of forfeiture that the administrator has not paid the debts of the intestate ; and therefore a cred- itor could not sue upon the bond in the name of the or- not deliver- ing a true inventory or account: it is no breach that the admin- istrator lia3 not paid the debts of the intes- tate ; given to the judge of probate, to render an account when required in the probate court. Clarke v. Clay, 31 N. H. 393.] (c) 3 Atk. 2.'j2, 253; 1 Salk. 315; 11 Mod. 145. But according to the modern practice, an inventory is not required by the court unless at the instance of a party interested. See post, pt. iii. bk. ii. ch. i. § III. See, also, Crowley v. Chipp, ante, 535. And it may be observed that the new form of bond prescribed by the court qualifies the condition as to the delivery of an inventory by the addition of the words whenever required by law so to do. [In Pennsylvania it has been held that an administrator must settle an account with- in a year, although not cited; otherwise his bond is forfeited. Campbell v. Adcock, cited in 8 Serg. & K. 132 ; Commonwealth V. Bryan, 8 Serg. & R. 128. In Massa- chusetts an executor or administrator is required within one year after giving bond to render his first account of administra- tion upon oath ; and further accounts from time to time as may be necessary or con- venient, or as may be required by the pro- bate court ; and if, after being duly cited by the probate court, he neglects to render an account of his administration, his bond may be put in suit. Genl. Sts. u. 98, §§ 9, 11; Bennett t;. Eussell, 2 Allen, 537; Munroe v. Holmes, 13 Allen, 109, 112. See Richardson v. Oakraan, 15 Gray, 57 ; Matthews v. Page, Brayt. (Vt.) 106. In Loring v. Kendall, 1 Gray, 305, the ques- tion arose whether the mere fact that an administrator had not rendered an account within one year was a breach of his bond, but as it appeared jn the case that the judge of probate, at the request of all parties in interest, allowed an account sub- sequently rendered by the administrator, it was held that this was a waiver of the prior breach in not rendering an account within a year, and the decision of the for- mer question was rendered unnecessary. See Bennett v. Russell, 2 Allen, 537. In Maine an action cannot be maintained against an executor or administrator upon his oiBcial bond, for not accountuig for money lost by his neglect or misconduct, until after he has been cited by the judge of probate to render his account thereof. Potter I). Cummings, 18 Maine, 55, 58. See Potter v. Titcomb, 7 Greenl. 321 ; Or- dinary V. Williams, 1 N. & M. 213 ; Mad- ison County Court v. Looney, 2 Stew. & Port. 70 ; Thompson v. Searcy, 6 Porter, 393 ; Lyles v. Caldwell, 3 McCord, 225 ; Shelton v. Cureton, 3 McCord, 412 ; Lin- ing v. Giles, 3 Brev. {S. Car.) 53; Ordi- nary V. M'CIure, 1 Bailey (S. Car.), 7 Simpkins v. Powers, 2 N. & M. 213 ; Behrle V. Sherman, 10 Bosw. 292 ; Crawford u. Commonwealth, 1 Watts, 480 ; People u. Corteis, 1 Sandf 228; Francis v. North- cote, 6 Texas, 185; Ordinary y. Martin, 1 Brev. (S. Car.) 552. A creditor may sue upon the administrator's bond without citing the administrator to account before the probate court ; indeed a creditor has no right to call the administrator to ac- count. Ordinary i/. Hunt, 1 McMuUan, 380. But the debt must be ascertained and fixed in some way. Ordinary v. Hunt, 1 McMuIlan, 380 ; Ordinary v. Jones, 4 McCord, 113. In some states a judgment or decree is required, in others an express admission of the claim seems to be sufficient. See Ordinary v. Hunt, and Ordinary v. Jones, supra ; ante, 534, note (f).] 608 OF LETTERS OF ADMINISTRATION. [PT. I. BK. V. nor that he diiiary, and assign for breach the non-payment of a debt distributed to him. (/) Nor was the neglect or refusal of the ad- uniess ' ministrator to distribute the surplus or residue of the ef- b^e'n a pre- f^cts of the intestate among the next of kin, according to viousde- ^]jg statute of distributions, a breach of the condition that the administrator shall deliver and pay over the residue, unless there had been a previous decree or sentence of the ecclesiasti- cal judge, because, by the terms of the bond, such decree should pre- cede the distribution. (^) And since that is provided for by this special clause in the condition, the neglect or refusal to distribute, until such previous decree or sentence, is not * a breach within the second clause of the condition, viz, that he should " well and truly administer according to law." (K) But when the administrator but it is a applies and converts to his own use the effects of the in- he has ap- testate, SO that those effects are entirely lost to the estate ass^ets'tJfhis of the intestate (as where he applies the balance of the pos"s^™ intestate's estate, after payment of the debts, to his own whereby purposes, and becomes a bankrupt), this is such a breach lost: of the condition of the bond, by which the administrator undertakes " well and truly to administer according to law," as (/) Archbishop of Canterbury;;. Willis, 1 Salk. 316; Browne v. Archbishop of Canterbury, 1 Lutw. 882 b; not even if a devastavit be suggested ; 1 Cr. & M. 711; [ante, 534, note (jr^).] But the as- signees of a bankrupt next of kin are not to be deemed creditors within this rule. Drewe v. Long, Prerog. July, 1854; 18 Jur. 1060. (g) 1 Cr. & M. 690 ; 3 Tyrh. 390 ; 8 B. & C. 151 ; [Beall v. New Mexico, 16 Wal- lace, 535, 542; ante, 534, note (g^); Judge of Probate v. Adams, 49 N. H. 150, 152, 153 ; Coffin u. Jones, 5 Pick. 61 ; Adams V. Adams, 16 Vt. 228; Probate Court v. Van Duzen, 13 Vt. 135 ; Judge of Probate V. Lane, 51 N. H. 342, 347, 348 ; Hurlburt V. Wheeler, 40 N. H. 75 ; Judge of Pro- bate V. Kimball, 42 Vt. 320 ; Ordinary v. Smith, 3 Green (N. J.), 92; Ordinary v. Barcalow, 7 Vroom, 15; ante, 534, note (9'*).] But it must be observed that these terms are omitted in the condition of the bond given under the court of probate act. And no such decree can now be [541] had; for no such suit can be entertained by the probate court (see ante, 292). It appears to follow that, as to bonds given under the statute of Charles, this part of the condition has become wholly ineffect- ual. (A) Archbishop of Canterbury v. Tap- pen, 8 B. & C. 151. Sir John NichoU, on the application to allow the bond to be put in suit, appears to have thought that this neglect might be a breach of the con- dition ; but his attention was not particu- larly directed to this point, the great con- test before him being whether the sureties ought to be charged under the particular circumstances that had taken place ; and it is obvious, from some parts of his judg- ment, that he would have thought it right to allow the next of kin to try this or any other doubtful question in a court of law, by an action on the bond, which could not be brought without the permission of the court. See 3 Add. 68 ; [and see Barbour V. Eobertson, 1 Litt. (Ky.) 93.] CH. IV.] OF THE ADMINISTEATION BOND. 609 will entitle the next of kin to have the bond put in suit at their instance ; and the plaintiff in such case is entitled to recover, in an action against the sureties, the full amount of the money that has been so misapplied, (i) The whole of the damages so re- covered should be paid into the ecclesiastical court, there to be distributed as the effects of the intestate. (A;) In accordance with and relying on the authorities above cited, the case of Sandrey v. Michell (l) was decided. There , , . . . , what is a the action was against sureties to a bond conditioned ac- breach of cording to the form given by the rule made in pursuance tion of°a'' of the 81st section of the court of probate act, (m) and unde/the" which consequently contained, as part of the condition, °^^ '*^- the terms * (not to be found in the bond given under the statute of Charles), that the administrator shall pay the debts which the deceased owed at his death. The action was brought by a cred- itor, to whom the bond had been assigned under sect. 83, and the declaration alleged that assets came to the hands of the adminis- trator, and that he had wasted the same, and did not pay the debt of the plaintiff. The plea was that the only breach of the con- dition of the bond was the non-payment of the debt to the plain- tiff. The replication was, that the administrator had wasted assets of the deceased sufficient to pay the debt. And the court of queen's bench held that the defendant was entitled to judg- ment, as the bond could only be enforced for the general benefit (i) Archbishop of Canterbury v. Robert- c. 101, § 29. See Wiggin v. Swett, 6 Met. son, 1 Cr. & M. 690 ; S. C. 3 Tyrwh. 390. 198. It was held in Newcomb v. Williams, "Whether the circumstance of the admin- 9 Met. 52.5, that when an executor, who is istrator dying largely indebted to the in- unfit to be such, is sued on his administra- testate's estate, is a breach, has been ques- tion bond in a case in which execution is tioned. Bolton u. Powell, 2 De G., M. & to issue without expressing that it is for G. 1. the use of any particular person, the judge (k) 1 Cr. & M. 713 ; 3 Tyrwh. 419 ; of probate should remove him, and ap- [Bradley J. in Beall v. New Mexico, 16 point an administrator de bonis non with Wallace, 535, 543. In Massachusetts all the will annexed, who will be entitled to money received on an execution awarded the money that may be received on such in a suit upon an administration bond, ex- execution ; and in the mean time the entry cept where it is awarded for the benefit of of judgments for the plaintiff should be a creditor, or a person next of kin, shall suspended until such removal and new ap- be paid to the co-executor or co-administra- pointment can be effected. Bennett v. Rus- tor, if there is any, or to whomsoever is sell, 2 Allen, 537.] then the rightful executor or administrator, (I) 3 B. & S. 405. and shall be assets in his hands to be ad- (m) See ante, 532. ministered according to law. Genl. Stats. VOL. 1. 39 [542] 610 OF LETTERS OF ADMINISTRATION. [PT. I. BK. V. of persons interested in the estate of the intestate, and not for the non-payment of a particular debt, (w) By stat. 21 & 22 Vict. c. 95, s. 15, " bonds given to any arch- 21 & 22 bishop, bishop, or other person exercising testamentary s. 15, bonds jurisdiction in respect of grants of letters of administra- fore Jan" ^^^^ made prior to January 11, 1858, or in respect of rema??' '" grants made in pursuance of the court of probate act or force. of this act, whether taken under a commission or requi- sition executed before or after the said 11th day of January, shall inure to the benefit of the judge of the court of probate, and, if necessary, shall be put in force in the same manner, and subject to the same rules (so far as the same may be applicable to them), as if they had been given to the judge of the said court subse- quently to that day." (o) It was held in Young v. Hughes, (^) that this enactment had not a retrospective effect, so as to enable the assignee of a bond given to the ordinary before the passing of the court of probate act to maintain an action commenced hy Mm before the stat. 21 & 22 Vict. c. 95 passed. But although it is plain that such a bond is not assignable under the 83d * section of the court of probate act, yet there seems to be no doubt that, under the 15th section of the act above stated, a bond given to the ordinary prior to Jan- uary 11, 1858 (the day on which the court of probate act came into operation), may, at any time after the 15th section came into operation, be assigned and proceeded upon by the assignee in all respects as if it had been given to the judge of the court of probate subsequently to January 11, 1858. {q) Where the administration is not within the statute 21 Hen. 8, bJnd'^given ^® ^^ ^^^ '^'^^^ °^ ^"^ administrator durante minore cetate when the with the will annexed, (r) or other grant of administra- administra- . , i i \ tiouisnot tion when the deceased dies testate, and the ordinary Hen. 8: tad taken a bond from the administrator, conditioned for (n) The court gave leave to amend the It seems to have been the opinion of Mar- declaration, so that the plaintiff should tin B. and Channell B. that the 87th sect, sue as trustee under the 83d sect. [Ante, of the court of prohate act (see ante, 296) 534, note {f).] shows an intention to transfer to the court (o) See, also, sect. 14, ante, 292, note of chancery . the jurisdiction over such a (P) ; [<^nte, 534, note (ffS).] bond. 4 H. & N. 84, 86. Sed quan-e de (p) 4 H. & N. 76. See, also, Young v. hoc. See Bouverie u. Maxwell, L. R. 1 Oxley, 1 Sw. & Tr. 25. P. & D. 272. (?) 4 H. & N. 84, by Pollock C. B. (r) See ante, 479, 480. [543] CH. IV.j OF THE ADMINISTRATION BOND. 611 the due payment of debts and legacies, a breach might well be assigned that, though he had more than sufficient to pay all the debts, he has not paid a legacy, (s) Where a party had obtained from the prerogative court a gen- eral order to put the administration bond in suit against how many the surety, the court of common law, in which the action may'^be as- was brought, could not restrain the party so empowered signed : from suggesting as many breaches as he chose, notwithstanding it may appear, on affidavit, that the order was obtained from the spiritual judge solely on one particular ground, (t) An administratrix entered into the usual bond in the preroga- tive court to exhibit an inventory within a limited * time, ^^^^ f^^ &c. The time having elapsed without an inventory equity will 1 . . . . ... relieve , being exhibited, a creditor put the bond in suit in the against name of the archbishop, and the administratrix filed her of the bill for an injunction ; which was granted on the terms of her giving judgment in the action, which was to stand as a security for costs at law and in equity (but not for the debt), and amending the bill by submitting to account, (m) It must be observed that under the 81st section of the court of probate act, (w) the court has power to dispense with dispensing sureties altogether, (x) ties. In an administration pendente lite, limited to recover certain sums, and granted jointly to the nominees of the two Bond by parties in the suit, the court will not dispense with such if^ovplrt- administrators entering into a joint bond. («/) dentehte. If the administration be committed to a person out of -Adminis- T-i 1 1 • • -1 tration England, it is requisite that the sureties to the bond bond when shall be resident within the kingdom, (z) tratoris When this rule was established, the assignee of the England. (s) Folbes V. Docminique, 2 Stra. 1137. (x) Tor instances where the court has (() Archbishop of Canterbury v. Robert- exercised this power, see Cleverly v. Glad- son, 1 Cr. & M. 181. See the observa^ dish, 2 Sw. & Tr. 335; In the Goods of De tions of Sir H. Jcnner ITust in Crowley v. la Farque, lb. 631. It should be observed Chipp, 1 Curt. 460. The defendant can- that the court has no power to dispense not plead payment of money into court as with the bond. In the Goods of Powis, to some of the breaches and performances 34 L. J., P. M. & A. .55. [See ante, 529, as to the rest. Bishop of London v. note («')•] McNeil, 9 Exch. 490. (y) Stanley v. Bernes, 1 Hagg, 221. (u) Thomas w. Archbishop of Canterbury, But see sect. 83 of the court of probate 1 Cox, 399. See, also, 2 De G., M. & G. 1 7. act, ante, 532. (v) Ante, 531. (2) In the Goods of O'Byme, 1 Hagg. , [544] 612 OF LETTERS OF ADMINISTRATION. [PT. I. BK. V. Whether in bond could not have served the sureties out of England the sureties with process. But since the common law procedure act, Ksfdent 15 & 16 Vict. c. 76, s. 18, service of a person abroad within the ^^j j^g effected. And the rule has consequently been relaxed, (a) Adminis- Where there has been an administration pendente bond when minorc cetate, and the minor coming of age takes upon comes of himself the * administration, he is obliged to give secu- *^®' rity to the same amount that the administrator did in the first instance. (6) Justifying securities to the administration bond are called for Justifica- at the court's discretion according to the circumstances tionof pf gacjj case : except that there is one general rule, that sureties to '^ . ° the bond : where there is not a personal service of the decree on the party or parties having a prior claim to the grant, justifying se- curities are required, (c) Where the securities are required to justify in the ordinary course of practice, the court will not dis- pense with this, even partially, but under very special circum- stances, (c?) Where the application that the sureties may be directed to jus- si 6. See, also, Cambiaso v. Negrotto, 2 Add. 439, as to bonds on grants of admin- istration to foreigners. [The sureties in every bond given to the judge of the probate court in Massachusetts must be inhabit- ants of that state and such as the judge approves. Genl. Sts. t. 101, § 12. See Picquet, appellant, 5 Pick. 65, 76. But under this section an executor's bond, which is signed by two sureties who are inhabitants of Massachusetts, and by a third person who is described as an inhab- itant of another state, if approved and ac- cepted by the probate court, is sufficient to qualify him to act. Clarke v. Chapin, 7 Allen, 425, 426. Hoar J. in this case said that it was the duty of the judge of probate " to determine the sufficiency of those who were legally qualified to be sureties, and to regard no others ; and this, we think, it must be presumed he. did." It is not nec- essary that the sureties should reside in the same county in which the application for probate or administration is made. Barksdale v. Cobb, 16 Geo. 13. Non-res- [546] idents may be taken as sureties on an ad- ministration bond in South Carolina. Jones V. Jones 12 Rich. (Law) 623. So in Kentucky, Eutherford v. Clark, 4 Bush, 27.] (a) In the Goods of Reed, 3 Sw. & Tr. 439. But it is still maintained as to sure- ties resident in Scotland ; for the common law procedure act, s. 18, excepts places in Scotland or Ireland. Herbert v. Sheill, 3 Sw. & Tr. 479, overruling In the Goods of Ballingall, lb. 444, in note. (b) Abbott V. Abbott, 2 Phillim. 578. (c) 3 Hagg. 194, note (a) ; In the Goods of Milligan, 2 Robert. 108. The court will not dispense with this rnle in favor of the official assignee of a deceased bank- rupt. Belcher v. Maberly, 2 Curt. 629. {d) Howell V. Metcalfe, 2 Add. 348. The mere fact that a receiver of the per- sonal estate has been appointed by the court of chancery is no ground for the dispensation. Jackson v. Jackson, 35 L. J., P. M. & A. 3. CH. IV.] OF THE ADMINISTEATION BOND. 613 tify, is made on behalf of a next of kin, the court feels bound to grant it ; but it may be sufficient for the sureties to justify in re- spect of the share of the party excluded from the administration, (e) Where administration cum testamento annexo was granted to the next of kin, on the ground of there being no executor ' ^ .11 , °ext of kin or residuary legatee who survived the testator, the party, administra- who had unsuccessfully claimed the administration de- testamento rivatively from the residuary legatee, prayed that the ™'**'^'" sureties to the administration bond of the next of kin might be compelled to justify; but the court rejected the application, as contrary to the established practice. (/) But a residuary legatee for life, taking administration with the will annexed, may be compelled to procure justifying residuary sureties. (^) On a late occasion, the court refused, on ^^satee : renunciation * of a co-executor, to grant administration with the ■will annexed, without justifying securities, to the daughter, the residuary legatee, during the lunacy of her mother, the other ex- ecutor and residuary legatee in trust. Qi) In a modern case administration de bonis non with a will an- nexed, in which was no executor, was granted to one of .,...,.. ,. legatee: two legatees, a decree with intimation having issued m their joint names against the residuary legatee ; the sureties jus- tifying in the amount of the surplus beyond the interest of the one legatee or (on a proxy of consent from the other) beyond the joint interests, and an affidavit of no outstanding debts being made. (J) On a late occasion (Jc) a husband, resident abroad, was directed, on the application of creditors, to give justifying security resident within the jurisdiction, on taking a grant of ad- resident ministration to his wife. There may also be justifying sureties required to the adminis- tration bond in cases of temporary general administra- temporary tion; as durante minor e cetate;Ql} or on a grant to a ^^^"J^^"^.'^' widow, where there is a minor daughter entitled in dis- tribution, limited till a last will is found ; (m) or on a grant to the use and benefit of a lunatic, pending the lunacy, (w) (c) Coppin V. DiUon, 4 Hagg. 376. (i) Pickering v. Pickering, 1 Hagg. 480. (/) Taylor v. Diplock, 2 Phillim. 280. (k) In the Goods of Noel, 4 Hagg. 207. ■ Ig) Friswell v. Moore, 3 Phillim. 139. {I) Howell v. Metcalfe, 2 Add. 350. (A) In the Goods of Hardstone, 1 Hagg. (m) In the Goods of Campbell, 2 Hagg. 487. See, also. In the Goods of Williams, 555. 3 Hagg. 217. (n) -^nte, 517. [546] 614 OF LETTERS OF ADMINISTRATION. [PT. I. BK. V. If the court decrees a general grant, but, under special circum- the court stances, requires the sureties to justify only as to a part allow se a- °^ ^^ property, it will not allow separate bonds, so that rate bonds, other securities than those who justify in the requisite amount shall enter into the common administration bond, in double the amount of the whole property, (o) On a late occasion, in an administration pendente lite, * 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. (j9 ) Where a person is authorized by a simple power of attorney to , , . . take out administration as agent for the use and benefit Adminis- ° _ • ■• i i tration of a party entitled to administration who is abroad, the bond by at- '^ •> .... , j. j.i, tomey of court Will only grant administration to the agent on the same terms as it would have granted it to the party him- self, and, therefore, will not alter the usual conditions of the ad- ministration bond or the terms of the ordinary administration oath. (§') If the husband of a married woman who is entitled to administration refuses to execute the administration bond or to assist in her obtaining the grant, the court will grant administration to her and allow a third person to execute the bond, (r) It may here be remarked, that it was held that an ad- ministration bond forfeited before the bankruptcy of the administrator was not provable under the bankruptcy law consolidation act, 1849 (12 & 13 Vict. c. 106) ; and, con- Adminis- tration bond by a third per- son for a wife enti- tled to ad- ministra- tion when the hus- band re- fuses to ex- ecute one. Whether claim on adminis- (o) Howell o. Metcalfe, 2 Add. 348. But see now s. 83 of the court of probate act, ante, 532. [An executor's bond, ap- proYed by the judge of probate, in which the sureties are each bound in half the sum in which the principal is bound, is not for that cause void, but is binding on the obligors, and sufficient to give effect to the executor's appointment, and to render his acts as such valid. Baldwin v. Stand- ish, 7 Cush. 207. But Dewey J. in this case said: "If this question had arisen upon an appeal from the judge of probate, allowing and approving an executor's bond in such form, we should be strongly inclined to the opinion, that it was a de- [547] parture from the usual course of proceed- ing, which ought not to be introduced." Seean«e, 329, note (ai).] (p) Stanleys. Bernes, 1 Hagg. 221. See, further, as to the practice respecting the sureties to administration bonds. Bond v. Bond, 1 Cas. temp. Lee, 429; Allen v. Allen, 2 Cas. temp. Lee, 244. See, further, as to the practice with respect to suing on administration bonds. In the Goods of Ir- ving, L. E. 2 P. & D. 658. (q) In the Goods of Goldsborough, 1 Sw. & Tr. 295. (r) In the Goods of Sutherland, 31 L. J., P. M. & A. 126. CH. IV.] OF THE ADMINISTEATION BOND. 615 sequently, a certificate under that act was no bar to an tration \ , , ■■ s ^°^^ " action on the bond, (s) barred by cert ificfltp It remains to mention such rules of the court of pro- in bank- bate as apply to administration bonds. mptcy. By rule 38, P. R. (Non-contentious Business), "Administra- tion bonds are to be attested by an officer of the prin- cipal registry, by a district registrar, or by a commis- R- (Non- sioner or * other person now or hereafter to be authorized Business.) to administer oaths under 20 & 21 Vict. c. 77, and 21 attestthe ° & 22 Vict. c. 95 ; but in no case are they to be attested ''™*' by the proctor, solicitor, attorney, or agent of the party who ex- ecutes them. The signature of the administrator or administra- trix to such bonds, if not taken in the principal registry, must be attested by the same person who administers the oath to such ad- ministrator or administratrix." (t) By rule 39, " In all cases of limited or special administration two sureties are to be required to the administration Rule 39. bond (unless the administrator be the husband of the sureties deceased or his representative, in which case but one amount of surety will be required), and the bond is to be given in bond, double the amount of the property to be placed in the possession of or dealt with by the administrator by means of the grant. The alleged value of such property is to be verified by affidavits if re- quired." By rule 40, " The' administration bond is, in all cases Rule 40. of limited or special administrations, to be prepared in tion^o™" the registry." («i) '"'°'^- By rule 41, " The registrars are to take care (as far as g"^'®/^". possible) that the sureties to administration bonds are be respou- responsible persons, {t^) sons. (s) Markham v. Brooks, 2 H. & C. 908 ; (fi) [See ante, 531, note (a^).] Kent V. Thomas, 40 L. J. Ex. 186. See, (fi) [An ordinary has been held liable also, the 153d section of the bankruptcy to an action if he neglect to take an ad- act, 1861, and the 31st section of the act ministration bond. Boggs v. Hamilton, 2 of 1869 (32 & 33 Vict. c. 71). Mill (S. Car.) Const. 382; McEae o. («) But this rale may be dispensed with. David, 5 Rich. (S. Car.) 475. This is pro- In the Goods of Parker, L. E. 1 P. & D. vided by statute in Pennsylvania, act 301. March 15, 1832, § 27 ; ante, 530, note (el).] [548] *BOOK THE SIXTH. OF THE EFFECT OF PROBATE AND LETTERS OF ADMINISTRATION, AS LONG AS THEY ARE UNREVOKED. — OF THE REVOCATION OF THEM, AND OF THE CONSEQUENCES THEREOF. CHAPTER THE FIRST. OP THE EFFECT OP PROBATE AND LETTERS OP ADMINISTRA- TION AS LONG AS THEY REMAIN UNREPEALED. It is a legal consequence of the exclusive jurisdiction of the As to what court of probate in deciding on the validity of wills of personalty, and granting administration, that its sen- tences pronounced in the exercise of such exclusive juris- diction, should be conclusive evidence of the right directly deter- mined, (a) Hence a probate, even in common form, unrevoked, is conclusive both in the courts of law (6) and of equity, (c) as to facts pro- bate, &c. is conclusive. {a) 1 PhiU. Et. 343, 7th ed. ; [Merrill V. Harris, 23 N. H. 142 ; Mutual Benefit Life Ins. Co. v. Tisdale, Sup. Ct. (U. S.) Oct. T. 1875. The limitation is to be ob- served. To be conclusive the decrees of probate courts must be made in the exer- cise of their jurisdiction. Emery v. Hil- dreth, 2 Gray, 228, 231 ; Jochumseu v. Suffolk Savings Bank, 3 Allen, 87 ; Gray J, in Waters v. Stickney, 12 Allen, 3 ; Tebbetts v. Tilton, 31 N. H. 273 ; Wales V. Willard, 2 Mass. 120 ; Holyoke v. Has- kins, 5 Pick. 20 ; Smith v. Rice, 11 Mass. 507 ; Sigourney v. Sibley, 21 Pick. 101 ; post, 586, note (a). Mr. Redfield, in his able work on surrogates' courts in New York, p. 13, says that " the force and ef- fect of a surrogate's decree are determined by the rules which govern all courts of limited jurisdiction. It may be attacked [549] either directly or collaterally as being void for want of jurisdiction over the sub- ject-matter. If the surrogate did not have jurisdiction over the subject-matter, his de- cree is not merely voidable, subject only to be reversed on appeal or to be vacated in a direct proceeding for that purpose, but it is absolutely void, and affords no protec- tion for acts done under it." See note {d) below.] (6) Noel V. Wells, 1 Sid. 359 ; S. C. 1 Lev. 235 ; 2 Keb. 337 ; Allan u. Dundas, 3 T. R. 125 ; [Gray J. in Waters v. Stick- ney, 12 Allen, 3 ; Dublin v. Chadbourn, 16 Mass. 441 ; Peters v. Peters, 8 Cush. 529 ; Taylor v. Tibbatts, 13 B. Mon. 177.] (o) Attorney General v. Ryder, 2 Chan. Cas. 178; Archer v. Mosse, 2 Vern. 8; Nelson v. Oldfleld, 2 Vern. 76 ; Griffiths V. Hamilton, 12 Ves. 298 ; Jones v. Jones, CH. I.J OF THE EFFECT OF PROBATE, ETC. 617 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, (c?) 3 Meriv. 171. All the cases on this sub- ject will be found collected and commented on with great ability in Hargrave's Law Tracts, p. 459 et seq. A probate obtained as a matter of course, on a Scotch con- firmation, under stat. 21 & 22 Vict, c. 56 (see anJe, 363), stands on the same footing; and it makes no difference that proceedings are pending in Scotland for a reduction of the confirmation. Gumming v. JFraser, 28 Bear. 614. (d) Archer v. Mosse, 2 Vern. 8 ; Plume V. Beale, 1 P. Wms. 388 ; Kerrich v. Brans- by, 7 Bro. P. C. 437, 2d ed. ; S. C. 1 Eq. Gas. Abr. 133 ; Griffiths v. Hamilton, 1 Ves. 307 ; [Gray J. in Waters u. Stick- ney, 12 Allen, 3; Allen v. Macpherson, 1 Phill. 145, 146; S. C. 1 H. L. Gas. 211, 221 ; In re Broderick's Will, 21 Wallace, 503 ; James v. Chew, 2 How. (U. S.) 619, 645 ; Townsend v. Townsend, 4 Coldw. (Tenn.) 70 ; Sever v. Eussell, 4 Gush. 513 ; Strong V. Perkins, 3 N. H. 518; Tomp- kins V. Tompkins, 1 Story, 547 ; Patten V. Tallman, 27 Maine, 17 ; Merrill v. Har- ris, 27 N. H. 142; Tebbetts u. Tilton, 31 N. H. 273, 287 ; Tibbatts v. Berry, 10 B. Mon. 473 ; Moore v. Tanner, 5 Mon. 42 ; Fortune v. Buck, 23 Gonn. 1 ; King v. BuUock, 9 Dana, 41 ; Gampbell v. Logan, 2 Bradf. Sur. 90; Thompson v. Thomp- son, 9 Penn. St. 234 ; Barney v. Chitten- den, 2 Green (la.), 165; Dublin u. Chad- bourn, 16 Mass. 433; Shumway v. Hol- brook, 1 Pick. 114; Rogers v. Stevens, 8 Ind. 464; Thomas J. in Emery v. Hil- dreth, 2 Gray, 231 ; Judge of Probate v. Lane, 51 N. H. 342, 348 ; Wade v. Lob- dell, 4 Gush. 510; Hegarty's Appeal, 75 Penn. St. 503 ; ante, 293, note (s). The executors are considered as representing the legatees, in regard to the litigation respecting the validity of the will ; and unless a case of fraud and collusion can be made out against them, the legatees are bound by the adjudication in the suit to which the executors are parties ; Col- vin u. Fraser, 2 Hagg. 292 ; Medley v. Wood, 1 Hagg. 645 ; Newell u. Weeks, 2 Phill. 224 ; and that, too, though the same persons are executors under two conflict- ing testamentary instruments. Hayle v. Hasted, 1 Curt. 236. The court, however, sometimes directs the parties interested to be brought before it. Reynolds v. Thrupp, 1 Curt. 570. In Stearns v. Wright, 51 N. H. 609, Sargent J. said : " In our view, our courts of probate are of limited and special jurisdiction, viz, in that they have no jury, and their proceedings are not according to the course of the common law. Wood v. Stone, 39 N. H. 572. Yet they are to be regarded as courts of general jurisdiction on the subjects to which they relate, and are entitled to all the presumptions in favor of their proceedings which are al- lowed in the case of other tribunals of general jurisdiction, — more especially as they are now made by statute courts of record. Rev. Sts. c. 152, § 19 ; Genl. Sts. c. 170, § 1 ; Tebbetts v. Tilton, 24 N. H. 120; Kimball v. Fisk, 39 N. H. 110. And their judgments where they have juris- diction are conclusive. They may be re- examined on appeal, but cannot be im- peached collaterally, except for fraud and want of jurisdiction in the court. Wilson V. Edmonds, 24 N. H. 517 ; Merrill v. Har- ris, 26 N. H. 142 ; Hurlburt v. Wheeler, 40 N. H. 73 ; Hall ;;. Woodman, 49 N. H. 295 ; Mooers v. White, 6 John. Ch. 387." See Roderigas v. East River Savings In- stitution, 15 Am. Law Reg. (N. S.) 205, and note at the end. The adjudication of the register in the probate of a will is con- clusive on all matters within his jurisdic- tion, if not appealed from within the time limited by law, just as if made by the pro- bate judge. Hegarty's Appeal, 75 Penn. St. 503; Holliday t: Ward, 19 Penn. St. 485 ; Loy v. Kennedy, 1 Watts & S. 396 ; Billiard v. Binford, 10 Ala. 977. In many of the American States courts of probate have the same power and complete jurisdic- 618 OF THE EFFECT OF PEOBATE, ETC. [PT. I. BK. VI. * Therefore, it is not allowable to prove that another person 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 court in a matter within its exclusive jurisdiction, (e) So the probate of a will con- tion over the probate of wills of real as of personal estate, and hence their decrees are held to he equally conclusive upon the question of the validity and due execution of such wills, whether of personal or real estate; and such decrees are not open to contestation in any other court. See Par- ker 0. Parker, 11 Cush. 519 ; Brown v. Wood, 17 Mass. 68, 72; Dublin v. Chad- bourn, supra; Osgood v. Breed, 12 Mass. 533, 534 ; Tompkins v. Tompkins, supra ; Poplin V. Hawke, 8 N. H. 124 ; Strong v. Perkins, supra ; Potter v. Webb, 2 Greenl. 257 ; Patten v. Tallman, supra; Fuller, ex parte, 2 Story, 327, 329 ; Judson v. Lake, 3 Day, 318; Fortune v. Buck, 23 Conn. 1 ; Lewis u. Lewis, 5 Louis. 388, 393, 394 ; Robertson v. Barbour, 6 Monr. 523 ; Sneed i^. Ewing, 5 J. J. Marsh. 460; post, 564 ; 1 Dan. Ch. Pr. (4th Am. ed.) 874, note (5), and cases cited ; Boyse v. Eossborough, 3 DeG.,M. &G. (Am. ed.) 817, note (1). In some states this conclusive effect of wills as to real estate is enforced by statute. In several of the states provision is made by statute that probate of wills of real estate shall be conclusive after the lapse of a cer- tain number of years, and in the mean time be open to reconsideration. See Dur- rington v. Borland, 3 Porter, 37 ; Hardy V. Hardy, 26 Ala. 524 ; Tarver v. Tarver, 9 Peters, 180; Scott v. Calvit, 3 How. (Miss.) 157 ; Parker v. Brown, 6 Grattan, 554 ; Bailey v. Bailey, 8 Ohio, 246 ; Heg- arty's Appeal, 75 Penn. St. 512, 513; Ken- yon V. Stewart, 8 Wright, 189. In some states probate of a will of real estate is prima facie, but not conclusive, evidence of the due execution of the will. See Smith V. Bonsall, 5 Rawle, 80; Logan v. Watt, 5 Serg. & E. 22 ; Coates d. Hughes, 3 Bin- ney, 498 ; Barker v. McFerran, 26 Penn. St. 211 ; liarven v. Springs, 10 Ired. 180; Eandall v. Hodges, 3 Bland, 47 ; Towns- [550] hend v. Duncan, 2 Bland, 45 ; Darbey v. Mayer, 10 Wheat. 470 ; Singleton v. Sin- gleton, 8 B. Mon. 340; Welles's Will, 5 Litt. 273 ; Hegarty's Appeal, 75 Penn. St. 512. As to the effect of probate of a will in New York, it is said that a will may be proved at the same time, both as a will of real and of personal property. The effect of the probate differs, however, as to each class of property. As to the real estate, the probate is not conclusive cither as to the validity or the due execution of the will. These questions may be litigated whenever rights to real estate claimed un- der the will are litigated. But in respect to dispositions of personal property con- tained in the will, the rule is different. Redf. L. & P. of Surrogates' Courts, 118, 119 ; Matter of Kellum, 50 JSf. Y. 298; Bogardus v. Clark, 4 Paige, 623, 626, 627 ; Jackson v. Le Grange, 19 John. 386 ; Mor- rell V. Dickey, 1 John. Ch. 153 ; Jackson V. Thompson, 6 Cowen, 178; Muir v. Trus- tees &c. 3 Barb. Ch. 477 ; Rogers v. Rog- ers, 3 Wend. 514. As to New Jersey, see Sloan V. Maxwell, 2 Green Ch. 566 ; Harri- son V. Eowun, 3 Wash. C. C. 580. South Carolina, see Taylor v. Taylor, 1 Eich. 533 ; Crosland v. Murdock, 4 McCord, 217 ;] ante, 45, note (t) ; post, 557, 558. (e) Noel <^. Wells, ubi supra; [Dublin V. Chadbourn, 16 Mass. 433 ; Parker u. Parker, 11 Cush. 525, 526. So the decree of the court of probate duly approving and allowing the will of a married woman, un- appealed from and unreversed, is final and conclusive upon the heirs-at-law of the testator, and they cannot, in a court of common law, deny the legal capacity of the testatrix to make such will. Parker V. Parker, 11 Cush. 519 ; Ward v. Glenn, 9 Rich. (Law) 127 ; ante, 54, note (y) ; Judson V. Lake, 3 Day, 318; Poplin v. Hawke, 8 N. H. 124; Cassels v. Vernon, CH. I.] HOW FAR CONCLUSIVE. 619 clusively establishes in all courts that the will was executed ac- cording to the law of the country where the testator was domi- ciled. (/) In short, without the constat of the court of probate no other court can take notice of the rights of representation to personal property ; and when that court has, by the grant of probate or letters of administration, established the right, no other court can permit it to be gainsaid. (^) By the court of probate act (20 & 21 Vict. c. 77, s. 75), " After any grant of administration, no person shall have power to sue or prosecute any suit, or otherwise act as executor of the deceased, as to the personal estate comprised in or affected by such grant of administration, until such administration shall have been recalled or revoked." (^^) So, in Bouchier v. Taylor, (A) 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 5 Mason, 332 ; Robinson v. Allen, 1 1 Grat- tan, 785. This is true even in regard to a will made and admitted to protate in another state or country which has also been allowed and recorded in Massachu- setts according to the mode prescribed by statute in that state. Parker v. Parker, U Cush. .519 ; Dublin v. Chadbourn, 16 Mass. 433.] (/) Whicker v. Hume, 7 H. L. Cas. 124. But see the observations of Lord Cran- worth, lb. 156. (g) Attorney General v. Partington, 3 H. & C. 204 ; [L. R. 4 H. L. 100. A decree of the probate court appointing an ad- ministrator is conclusive, unless appealed from. Clark u. Pislion, 31 Maine, 504; Record v. Howard, 58 Maine, 225. Let- ters testamentary and of administration are conclusive evidence of the authority of the persons to whom granted, and are suf- ficient to establish the representative char- acter of the plaintiff who assumes to sue by virtue thereof. Carroll v. Carroll, 60 N. y . 1 23 ; Belden !). Meeker, 47 N. Y. 307 ; Farley v. McConnell, 52 N. Y. 630. An order of the court of probate directing the estate of an intestate to be distributed to the persons whom such court finds to be the heirs-at-law and entitled to the estate, is conclusive, and furnishes full protection to the administrator, until set aside on ap- peal. Kellogg V. Johnson, 38 Conn. 269. See Roderigas v. East River Savings Insti- tution, 15 Am. Law Reg. (N. S.) 205.] ig^) [See Moore v. Ridgeway, 1 B. Mon. 234; Carter v. Carter, 10 B. Mon. 327. The jurisdiction of the probate court to grant administration cannot be attacked collaterally. Abbott v. Coburn, 28 Vt. 663; Irwin v. Scriber, 18 Cal.499; An- drews V. Avory, 14 Grattan, 229 ; Quidort V. Pergeaux, 15 N. J. (Law) 473 ; post, 563, note (c). But it may be shown, notwith- standing the grant of administration, that the deceased left a will, lost or destroyed ; and upon such proof being made, the will will be sustained and the administration revoked. Bulkley v. Redmond, 2 Bradf. Sur. 281.] (A) 4 Bro. C. C. 708, Toml. ed. 620 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. try that question. (A^) And this decision was held by Lord Lynd- hurst, in Barr v. Jackson (i) (reversing the decree of Knight Bruce V. C), (/) to be a binding authority for the proposition, that if the sentence of the ecclesiastical court, in a suit for admin- istration, turns upon the question of which of the parties is next of kin to the intestate, such sentence is conclusive upon that ques- tion * in a subsequent suit in the court of chancery, between the same parties, for distribution. (^) Upon this principle it was decided, in a modern case, that pay- ment of money to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the deceased, notwith- standing the probate be afterwards declared null in the ecclesiasti- cal court, and administration be granted to the intestate's next of kin ; (Z) for if the executor had brought an action against the debtor, the latter could not have controverted the title of the ex- ecutor 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. (m') (fti) [The regularity and sufBcienoy of the appointment of an administrator by a probate court having jurisdiction to ap- point one on an estate, cannot be drawn in question, in an action brought by the administrator against a stranger, to re- cover a debt due to the intestate. Emery a. Hildreth, 2 Gray, 228 ; Flinn v. Chase, 4 Denio, 85 ; Burnley u. Duke, 2 Eob. (Va.) 102. Nor can the regularity of the appointment be questioned in any col- lateral proceeding. Wright v. Wallbaum, 39 III. 554 ; Eslava v. Elliot, 5 Ala. 264 ; Carroll v. Carroll, 60 N. Y. 123 ; Bryan V. Walton, 14 Geo. 185 ; Naylor v. Mof- fatt, 20 Missou. 126 ; Boody v. Emerson, 17 N. H. 577 ; Sadler v. Sadler, 16 Ark. 628 ; James v. Adams, 22 How. Pr. 409 ; ante, 448 ; Clark v. Pishon, 31 Maine, 503 ; Eiley u. McCord, 24 Missou. 265 ; Qui- dort V. Pergcaux, 15 N. J. (Law) 473 ; Bel- den ij. Meeker, 47 N. Y. 307.] (i) 1 Phil. C. C. 582. (j) 1 Y. & Coll. C. C. 585. (h) In Long v. Wakeling, 1 Beav. 400, where A, B., being entitled to a fund in court, died, and administration was granted [551] to " person, as "the natural and lawful sister" of A. B., and it appeared from the proceedings in the cause that A. B. was illegitimate, the court refused to pay the fund to the administratrix, but directed it to be carried over to a separate account, with directions that it should not be paid out of court without notice to the crown. [See Wescott v. Cady, 5 John. Ch. 334, 343 ; Morrell o. Dickey, 1 John. Ch. 153 ; Burger v. Hill, 1 Bradf. Sur. 360 ; Colton V. Ross, 2 Paige, 396 ; Bogardus v. Clark, 4 Paige, 623 ; Pritchard v. Hicks, 1 Paige, 270.] (l) Allan V. Dundus, 3 T. E. 125 ; [Thomas J. in Emery v. Hildreth, 2 Gray, 231 ; post, 590, note (x^) ; Eoderigas v. East River Savings Institution, 15 Am. Law Reg. (N. S.) 20.5, and note at the end.] See, also, Prosser v. Wagner, 1 C. B. N. S. 289, and stat. 20 & 21 Vict, c. 77, s. 77; post, 591. (m) Allan v. Dundus, 3 T. E. 129. [In a case where probate of a will was re- voked, on the ground that the witnesses were incompetent, it was held that the acta of the executor before the revocation CH. I.] HOW FAB CONCLUSIVE. 621 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 bequest having been 'given by distinct instru- ments, (w) In such a case, if a probate has been granted, as of a will and codioil, this is conclusive of the fact of their being distinct instruments, though written on the same paper, (o) * 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, (p } where an executor proved a will of personal property, and then brought a bill in equity to be relieved against a particu- lar 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, (g-) But though courts of equity are bound to receive, as testamen- tary, a will, in all its parts, which has been proved in the . . 1 1 . . . In what proper spiritual court, yet they may, m certain cases, af- cases a feet with a trust a particular legacy or a residuary be- equity will quest, which has been obtained by fraud, (r) For in- ™*^*''^- stance, 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, (s) And it has never been were valid, and that he might be cited to 75 Penn. St. 514 et seq. ; Meluish v. Mil- render his account. Peebles's Appeal, 15 ton, L. R. 3 Ch. D. 27.] Serg. & R. 39, 42.] Where, however, a (r) Mitf. Plead. 257, 4th ed. ; [Dowd v. sum of stock was standing in the name Tucker, 14 Am. Law Reg. (N. S.) 477 ; of a testatrix, which her executors over- Vickery v, Hobbs, 21 Texas, 570.] looked, and, the dividends remaining un- (s) Marriot u. Harriot, 1 Stra. 666 ; claimed, the stock was transferred to the S. C. Gilb. Eq. Rep. 203 ; Mitf. PI. 258, national commissioners, and afterwards 4th ed. See post, 558, note (c) ; [In re one Sanders procured a probate, in the Broderick's Will, 21 Wallace, 510 ; ante, name of T. Hunt, of a forged will of the 45, note (m).] So in Segrave w. Kirwan, testatrix, and obtained a transfer, it was 1 Beat. 157, the executor, who was a bar- held by Lord Langdale M. R. that the pro- rister, had himself prepared the will, the bate did not authorize a payment to San- rule of law at that time being that the ex- ders, and that a party giving faith to the ecutor was entitled to the residue unless probate was bound to see that the person otherwise disposed of or unless a legacy claiming under it was a real T. Hunt. Ex was bequeathed to him. See post, pt. iii. parte Jolliffe, 8 Beav. 168. bk. iii. ch. v. § ii. And Sir A. Hart held (n) See infra, pt. iii. bk. iii. ch. ii. § that it was the duty of the executor to VIII. have informed the testator that such was (o) Baillie r. Butterfield, 1 Cox, 392. the rule, and that he could not be allowed (p) 1 P. Wms. 388. to profit from this omission, but must be (q) See ante, 377 ; [Hegarty's Appeal, decreed to be a trustee for the npxt of [552] 622 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. * thought that courts of equity, by declaring a trust, in such cases, infringed upon the jurisdiction of the ecclesiastical courts, (i) Again, although it is now settled that a will cannot, either be- fore or after probate, be set aside in equity, on the ground that the will was obtained by fraud on the testator, yet where prolate 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 rev- ocation of it in the court in which it was granted, (u) Thus in Barnesley v. Powell, (w) the bill sought to be relieved against a kin. See, also, Bulkeley v. Wilford, 2 CI. & Fin. 102, 177, 178 ; S. C. 8 Bligh, 111. It was held by tir J. Stuart V. C. (not- withstanding the case of Allen v. McPher- son, post, 556 et seq.) that the court, under its equitable jurisdiction, has authority to declare an attorney a trustee for the heir- at-law and next of kin of real and per- sonal estate given him by a will prepared by himself, where lie has improperly taken advantage of the testator's ignorance, or allowed him to remain under a mistaken impression which Influenced the gift. Hind- son u. Weatherill, 1 Sm. & G. 609. But this decision was reversed on appeal, on the facts, the lords justices declining to give any opinion on the law of the case. Lord Justice Turner, however, distin- guished it from Segrave v. Kirwan, ob- serving that in that case the testator had no intention to benefit Kirwan the coun- sel. 5 De G., M. & G. 301. See, also, Walker v. Smith, 29 Beav. 394; [Wil- liams 0. Pitch, 18 N. Y. 547 ; Chamber- lain V. Chamberlain, 2 Freeman, 34; Nutt V. Nutt, 1 Freeman Ch. (Miss.) 128; Yates V. Cole, 1 Jones Eq. (N. Car.) 110; Barron v. Greenough, 3 Ves. 151 ; Corley V. Lord Stafford, 1 De G. & J. 238 ; Perry Trusts, § 181 ; Kerr F. & M. 171 ; Green- field V. Bates, 5 Ir. Ch. 219 ; McCormic v. Grogan, L. E. 4 li. L. 82 ; Norris v. Fra- zer, L. E. 15 Eq. 318; Eobinson i/. Den- son, 3 Head (Tenn.), 395. A very suit- able and exemplary application of the principle suggested in the text was re- cently made in Connecticut (Dowd v. Tucker, 14 Am. Law Eeg. N. S. 477), [653] where it appeared that the testatrix was an aunt of the defendant, that she lived with him, and had given him all her prop- erty by will, but upon her death-bed she desired to change her will and give a cer- tain parcel of real estate to a niece, and had a codicil prepared for that purpose. Before signing the codicil, wishing to se- cure the consent of the defendant to the change, she had him called in for the pur- pose. After hearing her, he replied that she was weak and that she need not trouble herself to sign the codicil, but that he would deed the property to the niece and carry out the wishes of the aunt. Trust- ing to his promise, she made no change in her will, but after her decease the defend- ant refused to make the conveyance to the niece. On a bill in equity brought by the niece to compel the defendant to convey, it was held that he took the property under a trust for her, which a court of equity would enforce. The same principle was acted on in Jones v. McKee, 3 Penn. St. 496.] [t] 1 Stra. 673; Gilb. Eq. Rep. 209; Fonbl. Eq. bk. 4, pt. 2, c. 1, s. 1, note (a). (m) Mitf. PI. 257,/4th ed. [But a court of equity will not give relief by charging the executor of a will, or a legatee, with a trust in favor of a third person, alleged to be defrauded by a forged or fraudulent will, where the court of probate could afford relief by refusing probate of the will in whole ov- in part. In re Brod- erick's Will, 21 Wallace, 503.] («) 1 Ves. sen. 119, 284, 287 ; 2 Eoper, CH. I.J HOW FAR CONCLUSIVE. 623 paper writing, purporting to be tlie 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 sought 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 that will by a probate was obtained, and a conveyance and assurances made by him. Lord Hardwicke C. directed an issue, with a special direction on the decretal order, to know on what founda- tion the jury went, if they found against the will, whether upon forgery, or any particular defect in the execution ; and his lord- ship, after making some observations, with respect to the relief against the decree of the court of exchequer, proceeded to remark, " As to the sentence of the prerogative court, as at present advised, that will create no difficulty if the will is found forged ; for then the plaintift''s consent appearing to have been obtained by the mis- representation of that forged will, * that fraud infects the sentence ; against which the relief must be here. This is not absolute, but only to show the tendency of my opinion upon the equity reserved after the trial ; for I should not scruple decreeing the defendant, who obtained that probate, to stand as a trustee in respect of the probate ; which would not overturn the jurisdiction of that court." After a very long trial by a special jury, a verdict was brought in against the will, with an indorsement that it was grounded on forgery, and not on any defect in the execution. Upon the equity reserved, Lord Hardwicke admitted that undoubtedly the jurisdic- tion of the wills of personal estate belonged to the ecclesiastical court, according to which law it must be tried, notwithstanding the will is found forged by a jury at law, upon the examination of witnesses ; but there was a material difference between the court of chancery taking upon itself to set aside a will of personal es- tate on account of frand or forgery in obtaining or making that will, and taking from the party the benefit of a will established in the ecclesiastical court by his fraud, not upon the testator, but the person disinherited thereby. That fraud in obtaining a will in- fected the whole ; but the case of a will, of which the probate was obtained by fraud on the next of kin, was of another considera- Leg. 688, 3d ed.; recognized by Lord Cottenham, in Price v. Dewhurst, 4 M. & Cr. 85. [654] 624 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. tion. (a;) That, in the case before him, the plaintiff had given a covenant to the defendant to do all acts which Powell should require of him ; in consequence of which, a special proxy under hand and seal was obtained from him, confessing the allegations ; upon which sentence was pronounced of probate to the defendants, the executors. The probate depended on that deed : and it was, therefore, proper for the court to inquire, and set it aside for fraud, if proved ; and that was the ground of jurisdiction in the court of chancery, distinct from the will itself, and abstracted from the general * jurisdiction of the ecclesiastical court to determine of a will of personal estate. On the whole circumstances of the case, his lordship decreed, that the defendants should consent, in the ec- clesiastical court, the next term, to a revocation of the probate, and that, after such revocation, the defendants should have a fort- night's time to propound the paper writing in the ecclesiastical court ; (a;^) on failure of which, his lordship said he would compel the defendants to consent to the granting administration to the plaintiff : and his lordship added, " I think I ought to go farther ; and although I shall not yet decree a trust, yet even now I shall be warranted to decree an account of the personal estate, to be paid into the bank, for the benefit of the parties entitled, which for security was done in Powis v. Andrews ; and the present case, from.all the ill practice that has been, is stronger than that. This is the better method, to avoid any jealousy of infringing on the ecclesiastical court." , It being insisted for the plaintiff, that the court ought to direct no examination of the said paper writing, but grant a perpetual injunction, from the circumstances of its being produced and found with the forged will, and its reciting a forged deed ; his lordship thought this would be a very good defence in the ecclesiastical court, as they were circumstances of suspicion ; but that it would be going too far to say, that, because of ill prac- tice in one will, he should have no right as to another. The effect of this decision was considered in the modern case of Gingell v. Home, (y) There, after a will of personalty had been proved per testes in the ecclesiastical court, a bill was filed by the next of kin, alleging that the testator's signature to the (x) The distinction here taken by Lord (x^) [Gray J. in Waters v. Stiekney, 12 Hardwicke was recognized by Lord Aps- Allen, 4, 5.] ley in Meadows v. Duchess of Kingston, (y) 9 Sim. 539. Ambl. 764. [555] CH. I.] HOW FAR CONCLUSIVE. ■will was obtained •when he was not of sound and disposing mind ; that his medical attendants were not called as witnesses when the probate was obtained ; and that the evidence of the testator's in- competency did not come to the knowledge of the plaintiffs until after the time allowed * for appealing from the sentence of the ecclesiastical court had expired ; and praying that the will might be declared to have been fraudulently obtained, and that the residuary legatee might be declared a trustee for the plaintiffs. A demurrer to the bill was allowed by Sir L. Shadwell V. C. And his honor said he had long considered the law as settled, that there is no method of escaping from the effect of probate, unless in a case like Barnesley v. Powell. That in the present case no fraud was practised on the plaintiffs in obtaining probate ; and this bill, therefore, did not afford any such materials for the inter- ference of the court as there were in Barnesley v. Powell, in which Lord Hardwicke made a decree which afforded an opportunity of having the matter reconsidered in the ecclesiastical court. The subject has been since fully investigated, and all the au- thorities relating to it have been discussed, in the case of Allen v. Macpherson. (2) There the testator had by his will and subse- quent codicils bequeathed considerable property to the plaintiff, and made also other bequests to other relatives. He afterwards by a further codicil revoked these bequests, and in lieu of them made a small pecuniary provision for the plaintiff. The bill alleged that this codicil was obtained by false and fraudulent representations made by an illegitimate son of the testator, act- ing in confederacy with the defendant, his daughter and residuary legatee, as to the character and conduct of the plaintiff. In the ecclesiastical court the plaintiff had unsuccessfully resisted, the ad- mission to probate of the revoking codicil, on the ground that it had been obtained by undue influence. And the bill further stated that the appellant was confined in that court to grounds of objec- tion which affected the codicil as an entire instrument, and was not permitted to go into the case stated in the bill or into any other case solely relating to the parts of the codicil which affected only the appellant. To this bill the defendant demurred. Lord * Langdale M. R. overruled the demurrer, being of opinion that, by analogy to former decisions, as the will alleged that the revocation had been procured by the fraud of the defendant, the court of (z) 5 Beav. 469 ; 1 Phill. C. C. 133 ; 1 H. L. Cas. 191. VOL.1. 40 [556] [557] 626 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. chancery had jurisdiction to deprive her of the benefit of it, and to declare her to be a trustee of that to which the law entitled her for the benefit of the person to whose prejudice the fraud was practised, (a) But this decision was reversed by Lord Lyndhurst C. on appeal; and his lordship relied on the distinction taken by Lord Hardwicke (as above stated), in Barnesley v. Powell, and recognized by Lord Apsley in Meadows v. The Duchess of Kingston, (6) between fraud on the testator and fraud upon the person disinherited thereby. His lordship further relied on Ker- rich V. Bransby, (c) as a decision of the house of lords establishing not merely that a will cannot be set aside in equity for fraud, (^d) but further, that the court of chancery has no jurisdiction to de- clare the fraudulent legatee a trustee for the party defrauded. And this decision was afterwards affirmed on appeal to the house of lords ; their lordships holding that the ecclesiastical court had jurisdiction to refuse and ought to have refused probate of that part of the codicil which affected the appellant, because, giving credit to the facts stated by the bill and admitted by * the de- murrer, that part of the codicil was not the will of the testator, having been obtained by a fraud practised on him ; but that the proper course would have been to appeal to the privy council in order to set the matter right, and not to file a bill in equity, which was, in effect, an attempt to review the decision of a court of pro- bate by the court of chancery, (e) (a) 5 Beav. 469. parte Fearon, 5 Ves. 633, 647, observed (b) Ambl. 762 ; ante, .554, note {x). that it was determined in Kcrrich v. (c) 7 Bro. P. C. 437 ; ante, 45, note (m), Bransby, that the court of chancery could 549, note (d). not take any cognizance of wills of per- (rf) But Lord Abinger C. B. in his sonal estate as to matter of fraud, judgment in Middleton u. Sherburne, 4 (e) 1 11. L. Cas. 191. Lords Lyndhurst, Y. & Coll. Exch. C. 358, argued with Brougham, and Campbell were of opinion much pains that in Kerrich v. Bransby that the decree should be affirmed, dissen- the bill was dismissed on the merits, and tientibus Lords Cottenham C. and Lang- that the case is, therefore, no authority dale M. U. Lord Lyndhurst, in the for the proposition that a will cannot be course of delivering his opinion, observed set aside in equity for fraud. That, how- as to the case mentioned by Gilbert C. B. ever (observed Lord Lyndhurst, in Allen in Harriot w. Marriot (ante, 552, note (s)), V. MacPherson, 1 Phill. C. 0. 146), has of the drawer of the will fraudulently in- not been the understanding of the profes- serting his own name instead of that of sion, and Lord Hardwicke, who probably the legatee, that if probate were refused was acquainted with the history of the in such a case, on account of the fraud, case, expressly states in Barnesley v. Pow- the real legatee would lose his legacy. cU, that it was decided on the question of And his lordship added, that he thought jurisdiction. And Lord Eldon, in Ex it would be found, on examining the cases [558] CH. I.] HOW FAR CONCLUSIVE. 627 It may properly be remarked, in this place, that where a per- son had acted under a probate, and admitted facts material to its validity, a court of equity may interfere by injunction, and pre- vent such person from proceeding further to contravea-t the will in the ecclesiastical court. (/) Further, a court of equity, by reason of its jurisdiction as a court of construction, may, under particular circumstances, so construe an instrument, of which probate has been obtained, as to render it ineffectual. Thus in Gawler v, Standerwick, (^) a paper was proved in the spiritual court as a codicil of the testator, which was signed by the executors and others, and purported to be an ac- knowledgment of what they understood to be the will of the tes- tator, when he was usable to speak, in favor of certain legatees ; and a bill having been filed in equity, a question was raised * whether they were entitled to their legacies under this paper proved as a codicil. Sir Lloyd Kenyon, master of the rolls, said that, as it had been proved in the spiritual court, be wa-s bound to receive it as a testamentary paper ; but having so done, the court of equity was to construe ii. Now the -effect of this codicil wae only that the parties understood it to be the will of the testator that the asserted legatees should have legacies, and the heir prom- ised to perform this ; but the court could not convert the promise of the heir into the will of the testator ; and his honor there- fore thought that this paper, though testamentary, yet operated nothing. Again, in Walsh v. Gladstone, (Ji) the testator had drawn two in which the house of lords had declared from the testator the fact thait she was not a legatee or executor to be a trustee for his lawful wife, as she had a former hus- other persons, that they hare been either band living; and it was held, that the questions of construction, or cases in court of chancery had no jurisdiction to which the party had been named as trus- entertain the case, which was within the tee, or had engaged to take as such, or in exclusive jurisdiction of the court of pro- which the court of probate could aHord bate; and that the case was not distin- no adequate or proper remedy. [The case guished from Allen v. Macpherson by the of Allen u. Macpherson was followed in fact that the lady had not asked the tes- Meluish v. Milton, L. R. 3 Ch. D. 27, tator to make a will in her favor.] where it appeared that a testator made a (f) Sheffield v. Buckinghamshire, 1 will giving all his property to his wife, Atk. 628; S. C. 3 Bro. P. C. 148; 2 Rop. and appointing her sole executrix. She Leg. 689, 3d ed. ; Gascoyne v. Chandler, pi'oved the will. The heir-at-law and sole 3 Swanst. 418, note, next of kin filed a bill to have her declared (g) 2 Cox, 16. a trustee of the property for him, on the (h) 13 Sim. 261. ground that she had fraudulently concealed [569] 628 OF THE EFFECT OF PEOBATE, ETC. [PT. I. BK. VI. checks on his banker in favor of two of his servants, with a direc- tion that the checks should be presented after his death. About a year afterwards he made a formal will, in which, among other bequests, he gave an annuity to each of the two servants, and the residue of his personal estate to certain other persons, and revoked all former wills. After his death, all the three instruments were admitted to probate as constituting, together, his last will. And it was held by Shadwell V. C. that, although he was bound, by the decision of the ecclesiastical court, to consider the two checks as part of the will, yet that nothing which that court had done, in the way of construction, would bind the court of chancery ; and his honor proceeded to state that his opinion, sitting in the court of construction, was that the bequests made by the checks were revoked by the will ; and he decreed accordingly. This decision was afterwards affirmed by Lord Lyndhurst C, (^) who considered the question as one of construction, which it was within the com- petence of the court of chancery to determine, notwithstanding the probate granted by the ecclesiastical court ; and his lordship relied on the case above stated, of Gawler v. Standerwick, and also that of Campbell v. Lord Radnor, (F) * in which it was declared that the first codicil, which had been admitted to probate, was to be considered as virtually revoked by the second. (J) Accordingly in Thornton v. Curling, (m) Lord Eldon C. ex- pressed his opinion that if a British subject domiciled in a foreign country, by his will appoints an executor, but makes a disposition of his personal property, which, though valid by the laws of Eng- land, is invalid by the laws of that foreign country, the court of chancery is at liberty, notwithstanding probate may have been granted in this country, to hold that the will has no operation beyond appointing the executor. And his lordship observed, that although, as the ecclesiastical court had granted probate of the will, he must take it to be a will, yet what part of the contents of that will was effectual, and in what way the court should deter- mine on the property, was quite a different thing, (n) So in Campbell v. Beaufoy, (o) a plea by an executor who has proved a will, that " the testator was at the date of his will, and (i) 1 Phill. C. C. 294. (m) 8 Sim. 310. (k) 1 Bro. C. C. 171. (n) See ante, 367; [Hegarty's Appeal, (I) See post, pt. in. bk. in. ch. ii. § 75 Penn. St. 514 et seq.] V"- (o) Johns. 320. [560] CH. I.] HOW FAR CONCLUSIVE. 629 also at the time of his death, domiciled in France, and that all the bequests of the personal estate affected to be made by it are by the law of France null and void," was held by Wood V. C. to be a good plea in bar to a suit by a legatee under the will for payment of his legacy and for administration of the personal estate of the testator. So in Loftus V. Maw, (^) which there has already been occasion to state, a revoking codicil, though it had been admitted to pro- bate, was not allowed under the circumstances to have any revoking effect. (5-) It must, moreover, be observed that an executorship or admin- istratorship may be denied in pleading, by a plea of ne unques executor or administrator, notwithstanding profert torship, of the probate or letters of administration ; and it was denied m held *that this traverse, upon issue joined, must be tried ^** ™^' by the country (on which issue the probate or letters will be con- clusive evidence), and not by the certificate of the ordinary, as in cases of excommunication, (r) And from its having been thus established that a probate is not conclusive in pleading, probably, grew the doubt which once existed, whether it was conclusive in evidence, (s) Under the law before the passing of the court of probate act (1857), the jurisdiction of the ecclesiastical court was ^^^^ confined to goods and chattels ; it had no power of ad- where pro- >•> 1 * iip*-i bate, &C' ministration over other property; and therefore its judg- is not con- men ts would bind those only who claim an interest in personal property. Hence the probate vras not conclusive evi- dence, or even, it should seem, admissible evidence, that the in- strument was a will, so as to pass copyhold or customary estate, (f) or so as to operate as a sufficient execution of a power to charge land, (u) (p) 3 Giffi 592. E. 130, 131, overruling an Anonymous (q) Ante, 126. See, also, the obserra- case in Cora. 150. tions of Lord Cranworth and Lord Wens- (s) Hargrave's Law Tracts, 459. [See leydale in Whicker v. Hume, 7 H. L. Cas. Griffith v. Wright, 18 Geo. 173.] 156, 165. (() Hume v. Rundell, Madd. & Geld. (r) Graysbrook v. Fox, Plowd. 282 ; Ab- 339 ; Jervoise v. Duke of Northumber- bot of Strata Mercella's case, 9 Co. 31 a; land, 1 Jac. & W. 570 ; Archer v. Slater, Hensloe's case, 9 Co. 40 6 ,• Anon. 1 Show. 11 Sim. 507; but see Gary v. Askew, 1 408. But a traverse that a testator made Cox, 244 ; Doe v. Danvers, 7 Bast, 299. a will, by which A. B. was appointed ex- (u) Hume v. Rundell, Madd. & Geld, ecntor, is bad. See Allen v. Dundas, 3 T. 331 ; [6 Madd. 331.] [561] 630 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. Again, it has already appeared, (?;) that to establish in evidence the will of a married woman made in execution of a power, pro- bate of it in the court of probate is first necessary, in order to confirm judicially its testamentary nature. But formerly the pro- duction of such a probate would not alone have been sufficient to induce a court of equity to act upon it ; for there were other special circumstances which might have been required to give the instrument effect as a valid appointment, viz, attestation, sealing, &c. with which circumstances the temporal courts did not trust the judgment * of thfe spiritual court. The witnesses, therefore, to' these facts, must have been examined in chief t® prove that the will was the wife's act, &c. ; and if an attestation were not re- quired by the power, still her signature must have been proved, (w) But by the 10th section of the new wills act (see preface, xii.) all such additional varieties in the execution of testamentary ap- pointments have, in. effect, been abolished. Further, as. the court of probate had no jurisdiction to authen- ticate a will, as far as it relates to real estate, it was held that the probate was no evidence at all of the validity or contents of a will, as to such, property, (a;) not even when the original will was lost, (y) except indeed as a mere copy. So on an indict- ment for forging a will, probate of that will unrepealed is not conclusive evidence of its validity so as to be a bar to the prose- cution; (s) It uMst also be observed, that although the sentences of the court of probate are conclusive evidence of the right directly de- termined, yet they ar«e not so of any collateral matter, which may possibly be collected or inferred from the sentence by argument, (a) Therefore letters, of admin/istration which have been granted to a (") ^»<«. 56, 391. (y) Doe v. Calvert, 2 Canipb. 389 ; [Car- (w) Rich V. Cockell, 9 Ves. 376 ; 2 Eop. roll v. Carroll, 60 N. Y. 125.] Husb. & Wife, 189, ad ed. See, also, (z) Rex o. Buttery, Russ. & Ry. C. C. Morgan v. Annis, 3 De G. & Sm. 461, R. 342 ; Rex v. Gibson, lb. 343, note (a) ; where Knight Bruce V. C. said he had no [Gray J. in Waters v. Stickney, 12 Allen, doubt the court of chancery had jurisdic- 4.] It is said in Rex v. Vincent, 1 Stra. tion to decide on the validity of the execu- 481, that the probate was admitted as con- tion of a testamentary power over person- elusive evidence on a similar prosecution ; alty, with reference to the donee's state of but that case must now be considered as mind at the time of the alleged execution, overruled. {x). Bull. N. P. 245. See Doe v. Orme- (a) Blackham's case, 1 Salk. 290 ; [Teb- rod,. 1 Moo. & Rob. 466. [See ante, 549, belts i: Tilton, 31 N. H. 273, 284 et seq.] note {d).] [562] CH. I.] HOW FAR CONCLUSIVE. 631 person as administrator of the effects of A. B. deceased, are not primd facie evidence of A. B.'s death. (6) * Likewise, though no evidence was receivable to impeach the probate or the letters of administration, being the judicial acts of a court having competent authority, yet it might be proved that the court which granted them had no jurisdiction, and that therefore their proceedings were a nullity, (c) Thus it might, under the (6) Thompson v. Donaldson, 3 Esp. N. P. C. 63 ; Moons v. De Beriiales, 1 Russ. C. C. 301 ; [Mutual Benefit Life Ins. Co. «. Tisdalo, Sup. Ct. U. S. Oct. T. 1875 ; 15 Am. Law Reg. N. S. 412. The probate court, in granting letters of administration, does not adjudicate that the person is dead, but that the letters shall be granted to the applicant. Mutual Benefit Life Ins. Co. V. Tisdale, supra; Carroll v. Carroll, 60 N. Y. 121. See Newman u. Jenkins, 10 Pick. 515; Helm v. Smith, 2 Sm. & M. 403. So that in a suit by an executor or administrator, the letters testamentary are admissible in evidence and are conclusive of his right to sue; but such letters, in an action between strangers, are not ad- missible to prove the death of the testator or intestate. Thus, in an action upon a policy of insurance on the husband's life in favor of his wife, letters of administration issued to her upon his estate are not evi- dence of the husband's death. Mutual Benefit Life Ins. Co. v. Tisdale, SMjora. See, further, Vanderpool v. Van Valkenberg, 6 N. Y. 190; Collins «. Ross, 2 Paige, 396] ; (but see French v. French, Dick. 268, where Lord Hardwicke, under particular circum- stances, admitted the probate as proof of the testator's death. [See, also, Tisdale v. Conn. Life Ins. Co. 26 Iowa, 177 ; S. C. 28 Iowa, 12 ; Jeffers v. RadcliiF, 10 N. H. 242, 245.]) However, if the plaintiff s^ues as executor or administrator, and there is no plea of ne ungues executor or adminis- trator, the plaintiffs right to sue is admit- ted, and therefore no evidence can be re- quired of the death of the testator or intestate. Lloyd v. Finlayson, 2 Esp. 564. [So held in Newman v. Jenkins, 10 Pick. 515.] (c) 3 T. R. 130, [and cases in note (/) below. Cutts V. Haskins, 9 Mass. 543 ; Wales u: Willard, 2 Mass. 120 ; Holyoke t;. Haskins, 9 Pick. 259 ; Holyoke o. Has- kins, 5 Pick. 20; Sumner f. Parker, 7 Mass. 83 ; Sigourney o. Sibley, 21 Pick. 101 ; Smith v. Rice, 11 Mass. 507 ; Emery V. Hildreth, 2 Gray, 231. But by statuto in Massachusetts the jurisdiction assumed in any case by the court, so far as it de- pends on the place of residence of a person, shall not be contested in any suit or pro- ceeding, except on appeal in the original case, or when the want of jurisdiction ap- pears on the same record. Genl. Sts. c. 117, § 4. Such is the law of Maine. Thus, where administration was granted upon a representation that the deceased at the time of her death was a citizen of Maine, and the record stated that this fact was made fully to appear, and there was no suggestion of fraud, and no appeal from the decree of the probate court granting the administration, and the settlement of the estate was proceeded with till the ad- ministrator had settled his fourth and final account, and had applied for an order of final distribution, it was held that the domicil of the deceased, at the time of her death, must be regarded as conclusively settled, not only for the purpose of giving jurisdiction to the probate court, but also for the purpose of distributing the estate; and that it was not competent to show that the domicil of the deceased, at the time of her death, was in Ohio, and not in Maine, either to show want of jurisdiction in the probate court, or to affect the dis- tribution of the estate. Record v. How- ard, 58 Maine, 225. The reasoning of Walton J. in this caise is conclusive upon the wisdom of the rule. See ante, 550, note (}^)-] [563] 632 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. old law, be shown upon a plea of ne unques executor that the deceased had bona notahilia in divers dioceses ; and that conse- quently the bishop or other inferior judge had no jurisdiction to grant probate or administration ; (d) for this confessed and avoided, and did not falsify the seal of the ordinary, (e) So it may be proved that the supposed testator or intestate is alive ; for in such case the court of probate can have no jurisdiction, nor their sen- tence any effect. (/) And it may be shown that the seal attached to the supposed probate has been forged ; for that does not im- peach the judgment of the court of probate ; (^) or that the letters testamentary have been revoked ; for this is in affirmance of its proceedings. (K) Alterations Very material alterations of some of the doctrines in the law •^ as to the above stated have been introduced by the court of pro- effect of J r probate as bate act, 1857 (20 & 21 Vict. c. 77). estate. By sect. 61 of that statute, " Where proceedings are Stat. 20 & taken under this act for proving a will in solemn form, 21 Vict. c. . . 71, s. 61. or for revoking a probate of a will, on the ground of will affect- the invalidity thereof, or where in any other conten- tafeh^ *^' tious cause or matter under this act the validity of a proved m ^jjj |g (Jigputed, unless in the several cases aforesaid the > form, oris ^jH affects only personal estate, the heir-at-law, devi- the subject t i at r • i- • of a con- sees, and other persons * having or pretending interest in proceed- the real estate affected by the will shall, subject to the hefr and provisions of this act, and to the rules and orders under persons in^ ^\^\^ ^^.^^ ^g cited to see proceedings, or otherwise sum- the real es- moned in like manner as the next of kin, or others cited. having or pretending interest in the personal estate affected by a will, should be cited or summoned and may be per- mitted to become parties, or intervene for their respective interests (d) Harriot v. Harriot, 1 Stra. 671 ; v. Bullock, 9 Dana, 41 ; Payne's Will, Bull. N. P. 247. [So a decree of the judge 4 Monr. 422 ; Hoore u. Tanner, 5 Honr. of probate appointing an administrator in 42; Marshall C. J. in Griffith v. Frazier, Massachusetts, in a case where the deceased 8 Cranch, 9, 24 ; ante, 409, note (a) ; post, had no domicil and left no estate subject 575, note (oi), 586, note (a) ; Jochumsen to administration within the state, was held v. Suffolk Savings Bank, 3 Allen, 87 ; to be void for want of jurisdiction. Crosby Hooper i;. Stewart, 25 Ala. 408. But see V. Leavitt, 4 Allen, 410, 411.], Rodevigas v. East River Savings Bank, 13 (e) 1 Stra. 671 ; 1 Saund. 275 a, note to Albany Law Journ. 42, Jan. 15, 1876.] Eex V. Sutton. (g) Harriot v. Harriot, 1 Stra. 671. (/) 3 T. R. 130; [Tilghman C. J. in (A) Bull. N. P. 247. Peebles's Appeal, 15 Serg. & R. 42; King [564] CH. I.] HOW FAR CONCLUSIVE. 633 in such real estate, subject to such rules and orders, and to the discretion of the court." (i) ' And by sect. 62, " Where probate of such will is granted, after such proof in solemn form, or where the validity of the seot. 62. will is otherwise declared by the decree or order in such ^{lYg^ "'^ contentious cause or matter as aforesaid, the probate, p™vedin ■■^ ' solemn decree, or order respectively shall inure for the benefit form, or its of all persons interested in the real estate affected by otherwise such will, and the probate copy of such will, or the let- the'decree' ters of administration with such will annexed, or a copy ll^^^^a be thereof respectively, stamped with the seal of her maies- bmding on , "^ ^ ■' the persons ty s court of probate, shall in all courts, and in all suits interested and proceedings affecting real estate of whatever tenure estate. (save proceedings by way of appeal under this act, or for the rev- ocation of such probate or administration), be received as conclusive evidence of the validity and contents of such will, in like manner as a probate is received in evidence in matters relating to the per- sonal estate ; (i^) and where probate is refused or revoked on the ground of the invalidity of the will, or the invalidity of the will is otherwise declared by decree or order under this act, such de- cree or order shall inure for the benefit of the heir-at-law or other persons against whose interest in real estate such will might oper- ate, and such will shall not be received in evidence in * any suit or proceeding in relation to real estate, save in any proceeding by way of appeal from such decrees or orders." (^) (t) The affidavit on which an applica- {fl) [In Massachusetts and many other tion to cite the persons interested in the of the American States, the jurisdiction of real estate affected by a will in dispute is the courts of probate extends to wills of based, must state not only that it disposes real as well as of personal estate, and their of real estate, but that it was executed ac- decrees are equally conclusive of the valid- cording to the law of England, and at a ity of wills affecting either alone or both date since the wills act came into opera- combined. Parker v. Parker, 11 Cush. tion. Campbell v. Lucy, L. E. 2 P. & D. 525, 526 ; 1 Dan. Ch. Pr. (4th Am. ed.) 209. See, also, Peacock v. Lowe, L. E. 1 874 ; ante, 549, note (d) ; Boyse v. Eoss- P. & D. 311. [" In proceedings of this borough, 3 De G., M. & 6. 817, note (1) ; nature, as the probate of wills, granting ante, 549, note (d).] titles of admini.stration, &c., the judge of (k) This clause, as likewise the 61st sec- probate having given that public notice tion, ante 563, and sections 63 and 64, infra, which the law requires, the mere fact that are not applicable to wills executed before some of the heirs are infants, idiots, or in- the wills act,»or which in whole or in part sane, will not defeat the probate of the have been executed not in accordance with will, or the granting of titles of adminis- the requirements of the wills act. Camp- tration." Dewey J. in Parker v. Parker, bell v. Lucy, L. E. 2 P. & D. 209. See, 11 Cush. 524.] also, as to the construction of this and the [665] 634 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. Sect. 63. Heir in cer- tain cases not to be cited, and where not cited not to be af- fected by probate. And by sect. 63, " Nothing herein contained shall make it neces- sary to cite the heir-at-law or other persons having or pretending interest in the real estate of a deceased per- son, unless it is shown to the court and the court is satis- fied, that the deceased was, at the time of his decease, seised of or entitled to or had power to appoint by will some real estate beneficially, or in any case where the will propounded, or of which the validity is in question, would not in the opinion of the court, though established as to personalty, affect real estate ; but in every such case, and in any other case in which the court may, with reference to the circumstances of the property of the deceased or otherwise think fit, the court may proceed without citing the heir or other persons interested in the real estate ; provided, that the probate, decree, or order of the court shall not in any case affect the heir or any person in respect of his interest in real estate, unless such heir or person has been cited or made party to the proceedings, or derives title under or through a person so cited or made party." (Z) And by sect. 64, " In any action at law or suit in equity, where, according to the existing law, it would be necessary to produce and prove an original will in order to establish a devise or other testamentary disposition of or affect- ing real estate, it shall be lawful for the party intending to * establish in proof such devise or other testamentary th^^ TdT disposition, to give to the opposite party, ten days, at of the will least, before the trial or other proceeding in which the issue. said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence, as proof of the devise or other testamentary disposition, the pro- bate of the said will or the letters of administration with the will annexed, or a copy thereof stamped with any seal of the court of probate ; and in every such-case such probate or letters of admin- istration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of such will and of its validity and contents, notwithstanding the same may not have been proved in solemn Sect. 64. Probate or office copy to be evi- dence of the will in suits con- cerning real estate two following sections, Barraclough v. stated, as to obtaining the requisite order Greenhow, L. R. 2 Q. B. 612, reversing authorizing the citation of the heir, &c. the decision of the queen's bench, 7 B. & See, also, the cases cited, lb. note (t), as S. 178. to the construction of the rule. (Z) See ante, 342, and the rule 78 thertj , [566] CH. I.] HOW FAR CONCLUSIVE. 635 form, or have been otherwise declared valid in a contentious cause or matter, as herein provided, unless the party receiving such notice shall within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary dis- position." It will be observed, that unless the will has been proved in solemn form and its validity declared by decree or order, so as to fall within the 62d section, it will still be necessary to produce the original will, if notice of disputing the validity be given under the 64th section. But such notice will be given at the peril of having to pay the costs of the production and proof of the will, (m) For by sect. 65 it is enacted, that " In every case in which, in any such action or suit, the original will shall be pro- gect. 15. duced and proved, it shall be lawful for the court or ^l^^oorlt judge before whom such evidence shall be given to di- ■"'''■ rect by which of the parties the costs thereof shall be paid." In L'Fit V. L'Batt, (n) there was a French will, the original whereof was proved in French, and, under it in the How far the orisT- same probate, the will was translated into English, but inaiwiil it * appeared to be falsely translated; upon which it was ^TOdto.in objected, that the translation being part of the probate, "^recHn- and allowed in the spiritual court, it must bind: and accuracies ^ _ / in the pro- the application must be to the spiritual court to correct bate. the mistakes in the translation, which until then must be conclu- sive. But, by the master of the rolls, (o) nothing but the original is part of the probate, neither hath the spiritual court power to make any translation ; and supposing the original will was in Latin (as was formerly very usual) and there should happen to be a plain mistake in the translation of the Latin into English, surely the court might determine according to what the translation ought to be. And so it was done in that case. In Havergal v. Harrison, (p) where the words in the probate were " brother and sister," and it was suggested that in the orig- inal will the words were " brothers and sister," Lord Langdale M. R. said he was bound by the probate, but if, on the produc- tion of the original will, a doubt existed as to the accuracy of the probate copy, the court would give an opportunity to the parties (m) But seeBarracloaghw. Greenhough, (o) Sir Joseph Jekyll. L. K. 2 Q. B. 612. ' Ip) 7 Beav. 49. (n) 1 P. Wms. 526. [567] 636 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. to apply to the ecclesiastical court to set it right. Accordingly, in Oppenheim v. Henry, (^q) coram Wood V. C, where the probate copy of a will was in these words : " I release my sons from all claims due to me by bonds on moneys advanced to them by me," and his honor was desired to look at the original will, in order to ascertain whether the word written " on " in the probate was not " or " in the will, the learned judge declined to do so, and said that looking at the will to ascertain the alleged inaccuracy of the probate was quite different from the case of a question arising on the punctuatibn of the will, or on the introduction of a capital let- ter, or other mark indicating where a sentence was intended to begin, and which might affect its sense. The law seems not to be settled on the point last suggested by his * honor, viz, whether, and in what cases, the court will look at the will itself in order to derive aid in its construction from the punctuation, or manner of writing, or from other appearances on the face of it. In Compton V. Bloxham, (r) coram Knight Bruce V. C, his honor relied, in construing a will, on the circumstance that certain words began an entirely new sentence ; and he begged to have it observed, that although it was a will of personalty, he had sent for and ex- amined the original will, and had been influenced by it in his con- struction. Again, in Shea v. Bosch etti, (s) where a facsimile probate of a will, with certain passages of it struck through, had been granted, Sir J. Romilly M. R. expressed his opinion, that, whether the court of probate grants a facsimile probate or not, the court of chancery is bound to look at anything in the original will itself which may aid and assist it in coming to a correct con- clusion as to the construction to be put upon the contents of the will. So in Manning v. Purcell, (i) it appears that the lord justices, in construing a will of personalty, ordered the original will to be produced, and had regard to certain erasures appearing therein, but which had been omitted in the probate, notwithstand- ing that counsel objected that the probate copy could alone be looked at. But in Gann v. Gregory, (m) coram Lord Cranworth C. where the ecclesiastical court had granted a facsimile probate of a will, made after the wills act came into operation, with cross lines drawn in ink over the bequests of certain legacies (the de- (?) 9 Hare, 802, note (6) to Walker w. (s) 18 Beav. 321. Tippin. (() 7 De G., M. & G. 55. (r) 2 Coll. 201. («) 3 De G., M. & G. 777. [568] CH. I.] HOW FAR CONCLUSIVE. 637 cree in the prerogative court having been pronounced for the will as contained in the document, " with the several alterations, inter- lineations, and erasures, appearing therein ") ; and it was sug- gested to his lordship, that if the original will were looked at, it would be seen that the pencil alterations made in the legacies con- tained under the cross lines must have been made after those lines were drawn, and it might * thence be inferred that the testator meant the legacies to remain part of the will ; his lordship said that he was not one of those who thought it was competent for the court of chancery on every occasion to look at the original will, though he was aware Lord Eldon did it in some instances, but in each there were particular circumstances, (v}} And his lordship proceeded to express his opinion, that as probate had been granted of the will, with the alterations in it, it must be taken as conclusively settled by the ecclesiastical court that the (ui) [To determine the construction, the original will, both of real and personal es- tate, may be looked at. It was said, in- deed, by an eminent judge (Sir William Grant in Sandford v. Eaikes, 1 Mer. 651), that his decision on the construction of the will before him could not depend on the grammatical skill of the writer, in the po- sition of characters expressive of a paren- thesis ; that it was from the words and from the context, not from the punctuation, that the sense must be collected, and there are probably few imaginable cases in which punctuation could exercise a very important influence upon the construction. See per Sir E. Sugden, in Heron v. Stokes, 2 Dr. & War. 98. But it seems a little unreasonable to refuse all eficct to " gram- matical skill," when employed in fixing a position for parenthetical characters, when that same skill is the foundation of all tes- tamentary construction. Certainly, in re- cent times, no hesitation has been felt by the courts in following what is stated to have been Lord Eldon's practice, viz, in examining original wills " with a view to see whether anything there appearing — as, for instance, the mode in which it was written, how dashed and stopped — could guide them in the true construction to be put upon it." Per Lord Justice Knight Bruce in Manning v. Purcell, 24 L. J. Ch. 523, note ; 7 De G., M. & G. 55. See, also. Child V. Elsworth, 2 De G., M. & G. 683 ; Ganntlett u. Carter, 17 Beav. 590; Mil- some V. Long, 3 Jur. N. S. 1073 ; Oppen- heim v. Henry, 9 Hare, 802, note ; Arcu- larius u. Sweet, 25 Barb. 406 ; Yates v. Thompson, 3 CI. & Fin. 569. It is true that Lord Cranworth expressed an opinion as stated in the text, that it was not com- petent for the court of chancery {i. e. the court of construction) on every occasion to look -at the original will. But that was in a case where the object proposed was by looking at an original will of personal property, virtually to procure a reversal of the decision come to by the ecclesiastical courts with respect to the form of the pro- bate copy in question. In Langston a. Langston, 2 CI. & Fin. 194, 221, 240, Lord Brougham, in the house of lords, on a question of construction appears to have called for and examined the original draft of the will, to see if there had not been an error in copying ; although his lordship said he was aware, as a lawyer, that he had no right to look at it. See the re- marks upon this proceeding, in 1 Jarman Wills (3d Eng. ed.), 382, note (h) ; and in Grant v. Grant, L. E. 5 C. P. 736, per Mr. Justice Blackburn.] [569] 638 OF THE EFFECT OF PROBATE, ETC. [PT. I. BK. VI. will was at its execution in its present state ; that is, that the testator executed the instrument with the lines drawn over it, meaning thereby, that the legacies were not to stand part of the will. Again, in Taylor v. Richardson, (t)) coram Kindersley V .C, where the probate had been delivered out with blanks in the course of the will, and it was suggested that it might be construed as if the words ran continuously, his honor observed, that the ecclesiastical court said that the will was an instrument in such and such words, and in certain places such and such blanks, and that the court of chanfcery was bound to look at them as part of the will. On the whole, it may, perhaps, be doubted whether, in strict- ness, the court of chancery has not gone beyond its legitimate means for construing wills of personalty even in the instances above mentioned, where it has sought aid from appearances in the will itself not to be found in the probate, and whether the more proper cause is not to apply to the ecclesiastical court for a cor- rected /ac-s«9wi7e probate, if it be desired to rely on stops or capital letters, or any marks which, in truth, are apparent in the will, though not in the probate. For until the court of probate has sanctioned them as legal parts of the will, non constat, that they have not been introduced by a stranger, (z)') or by the testator himself after the will was executed, or otherwise, so as not prop- erly to form a part of it. And this can only be decided * in the ecclesiastical court, which is bound to exclude from its probate, whether a facsimile probate or not, all such appearances on the face of the will as do not legitimately belong to it as a testamen- tary instrument, (w) {v) 2 Drew. 16. Malin, 1 Wend. 625 ; Jackson v. Malin, 15 («!) [As to alterations made in wills by John. 297 ; 2 Pothier, Evans, 179-181.] parties interested and by strangers, Malin v. {w) See ante, 331, fac-simtte probates. [570] CH. II.J OF THE REVOCATION OF PROBATE, ETC. 639 * CHAPTER THE SECOND. OF THE BEVOCATION OP PEOBATB AND LETTERS OF ADMIN- ISTRATION. By the court of probate act, 21 & 22 Vict. c. 77, s. 75, " After any grant of administration, no person shall probate have power to sue or prosecute any suit or otherwise Afte?grM act (a) as executor of the deceased, as to the personal tratfon'Slf estate comprised in or affected by such grant of adminis- tration, until such administration shall have been re- called or revoked." (a^) A probate or a grant of letters of administration may be revoked in two ways : 1. On a suit by citation. 2. On an appeal to a higher tribunal to reverse the sentence by which they are granted, (a^) A revocation by citation usually is, when the executor or ad- ministrator is cited before the judge by whom the pro- Revocation bate or letters of administration were originally granted, uon? to bring in the same, and to show cause why they should not be revoked, (a^) one to have power to sue, &c. as executor until the grant is re- called or revoked. (a) When administration has been granted, and another person intermeddles with the goods, this shall not make him executor deson tort, by construction of law. Ante, 261. (a?-) [White v. Brown, 7 T. B. Mon. 446. As to the right and freedom of ap- peal from a judge of probate, in New Hampshire, see Moulton's Petition, 50 N. H. 532, 5.37.] (a2) [Morgan v. Dodge, 44 N. H. 258.] (o8) [In the Matter of Paige, 62 Barb. 476. This subject was elaborately con- sidered in Waters v. Stickney, 12 Allen, 1, in which it was held that the probate court, after admitting a will to probate, and after the time for appealing from the decree has passed, may admit to probate a codicil to the same will, written upon the back of the same leaf upon which the will was written, if such codicil escaped atten- tion, and was not passed upon at the time of the probate of the original will. After a thorough review of the cases. Gray J. said : " In the face of these authorities it is impossible to deny the power of a court of probate to approve a subsequent will or codicil, after admitting to probate an ear- lier will by a decree the time of appealing from which is past ; or to correct errors arising out of fraud or mistake in its own decrees. This power does not make the decree of a court of probate less conclu- sive in any other court, or in any way im [571] 640 OF THE REVOCATION OF PROBATE, ETC. [PT. I. BE. VI. Stat. 24 Hen. 8, An appeal under the old law was to be effected by demanding Revocation letters missive, called Apostoli, from the judge a quo, to on appeal; the judge ad quern. (6) The manner and form of appeals was regulated by several stat- Manner "*^^* ^J ^*'^t. 24 Hen. 8, c. 12, s. 5 (repealed by 1 & 2 l^V°lTls ^^- ^ ^' °' ^' ^^'^ revived by stat. 1 Eliz. c. 1), the ap- peal, where the cause was commenced before the arch- deacon, lay to the bishop ; and by sect. 6, where the cause was commenced before the bishop, to the archbishop of the * province ; and by sect. 7, where the cause was commenced be- fore the archdeacon of the archbishop to the court of Hen. 8, c. arches, (c) and from the court of arches to the archbishop. to'the^'Lie- By statute 25 Hen. 8, c. 19, an appeal was given from the archbishop to certain commissioners. These commissioners were commonly called delegates (accord- pair the probate jurisdiction, but renders that jurisdiction more complete and effect- ual, and by enabling a court of probate to correct mistakes and supply defects in its own decrees, better entitles them to be deemed conclusive upon other courts. There is no reason to apprehend that such a power may be unjustly exercised. It is vested in the same court which is intrusted with the original jurisdiction over all pro- bates and administrations. No decree ad- mitting a later Instrument to probate, or modifying or revoking a probate already granted can be made without notice to all parties interested. Every party aggrieved by the action of the probate court has the right of appeal to this court ; and an ap- plication of this nature, where one will has already been proved, would never be granted except upon the clearest evi- dence. The new decree would not neces- sarily avoid payments made or acts done under the old decree while it remained unrevoked. Allen «. Dundas, 3 T. R. 125; Peebles's Appeal, 15 Serg. & R. 39; Kittredge v. Folson, 8 N. H. 98 ; Stone v. Peasley's Estate, 28 Vt. 720." Waters v. Stickney, 12 Allen, 15.] (6) Gibs. Cod. 1035. (c) Com. Dig. tit. Prerogative, D. 13, citing Heath v. Atworth, 2 Dyer, 240 6. [672] The person who administers justice in the court of arches, is the official principal of the archbishop : who was called officialis de arcubus, and the court itself curia de arcubus, from its being anciently held in the Ecdesia B. Marim de Arcubus, or Bow- church, by reason of the archbishop's hav- ing ordinary jurisdiction in that place, as the chief of bis peculiars in London, and being the church where the dean of those peculiars (commonly called the dean of the arches) held his court. And because these two courts were held in the same place, and the dean of the arches was usually substituted in the absence of the official while the offices remained in two persons, and the ofSces themselves have in many in- stances been united in one and the same person, as they now remain; by these means a wrong notion hath obtained, that it is the dean of the arches, as such, who hath jurisdiction throughout the province of Canterbury : whereas the jurisdiction of that office is limited to the thirteen peculiars of the archbishop in the city of London ; and the jurisdiction throughout the province, for receiving of appeals, from the sentences of inferior ecclesiastical courts and the like, belonged to him only as official principal. Gibs. Cod. 1004. CH. II.] ON APPEAL. 641 ing to the language of the civil and canon law), on account of the special commission or delegation they received from the king, (c?) * No appeal lay from a sentence in a court of delegates ; not even to the lords in parliament, (e) But on a petition Commis- to the king in council, a commission of review might be view. granted under the great seal, appointing new judges, or adding more to the former judges, to revise, review, and rehear the cause ; (/ ) for the king was not restrained by the statutes 24 & 25 Hen. 8, and the pope, as supreme head, whose authority is now annexed to the crown by stat. 26 Hen. 8, c. 1, and 1 Eliz. c. 1, had power to do it. (^) But by stat. 3 & 4 W. 4, c. 92, the statute of 25 ?*?'■ 3 & TT o 4 W. 4, 0. Hen. 8 was repealed, and the power of the court of del- 92. Ap- egates transferred to the judicial committee of the privy diciai com- council. "''"^«- (rf) The king might appoint whom he pleased as delegates. Com. Dig. Preroga- tive, D. 14. And in the exercise of its discretion the court of chancery would either grant a full commission of dele- gates, i. e. to lords spiritual and temporal, judges of the common law and civilians, or one to judges and civilians only. When the jurisdiction of bishops was in contro- versy, or a question depending that con- cerned the canon and ecclesiastical law, a full commission was granted. Where it was altogether a matter of law, as a ques- tion on a will, a commission issued to judges and civilians only. Ex parte Hel- lier, 3 Atk. 798. If any of the judges were in the commission, the place of as- sembly was usually appointed by one of them at Sergeants' Inn. Com. Dig. Pre- rogative, D. 14. If the delegates were equally divided in opinion, a commission of adjuncts might issue to add others to the judges delegate. Braerton v. Emerton, T. Raym. 475 ; 4 Burr. 2254. The pro- ceedings of the delegates were according to the rules of the civil and ecclesiastical law. Vanbrough u. Cock, 1 Chan. Cas. 201, by the lord keeper. And on that account it had been particularly adjudged, that a suit there did not abate by the death of the parties ; this being the course of the ecclesiastical courts. 1 Burn E. L. 61, VOL. I. 41 62 ; Com. Dig. Prerogative, D. 14. The delegates could not fine or imprison ; 4 Inst. 334 ; and whether they had power to excommuniiiate has been doubted ; Ste- venson V. Wood, 2 Bulst. 4; though it seems to have been exercised in practice. 2 Roll. Abr. 223, Prerogative, G. pi. 3 ; Wood's Inst. 505. The court of delegates, it should seem, had no original jurisdiction, but was only to I'eview and to reverse, or affirm, the sentence appealed from. There- fore, the better opinion appears to be, that they could not grant letters of administra- tion or probate. Stevenson v. Wood, 2 Bulst. 4 ; Eeeve v. Denny, Latch, 85 ; con- tra, 2 Roll. Abr. 223, Prerogative, G. pi. 4 ; and see Com. Dig. Administrator, B. 2. It is said in Toller, p. 75, that where probate granted by the special court is affirmed on an appeal to the arches or delegates, the usage is to send the cause back. But when the first sentence is re- versed, the court below shall be ousted of its jurisdiction, and the court which re- verses it shall grant probate de novo. (e) Saul V. Wilson, 2 Vern. 118; Cot- tington's case, 2 Swanst. 326, note to Kennedy v. Lord Cassilis. (/) 1 Oughton, tit. 302, sect. 2, note (c), pi. 5. {g) 4 Inst. 341 ; Gervis v. Hallewell, Cro. Eliz. 571. [573] 642 OF THE EEVOCATION OF PROBATE, ETC. [PT. I. BK. VI. Court of probate act, s. 39. Appeal from the court of probate to the house of lords. And now by the court of probate act, 1857 (20 & 21 Vict. e. 77), the appellate jurisdiction in matters and causes * testamentary is transferred from the privy council to the house of lords. For by the 39th section it is enacted, that " Any person consid- ering himself aggrieved by any final or interlocutory de- cree or order of the court of probate may appeal there- from to the house of lords, (^i) provided always, that no appeal from any interlocutory order of the court of pro- bate shall be made without leave of the court of probate first obtained, but on the hearing of an appeal from any final decree all interlocutory orders complained of shall be con- sidered as under appeal as well as the final decree." By rule (made in 1862), " Contentious Business," No. 87, " Application for leave to appeal against any interloc- utory decree or order of the court of probate must be made within a month of the delivery of the decree or order ap- pealed from, or within such extended time as the judge shall di- rect, and notice of such application must be given to the parby in whose favor such order or decree has been made, and filed in the registry." A form of notice is given. No. 29. (A) By rule 88, '' Parties may proceed to carry into effect the deci- sion of the court of probate, notwithstanding any notice of appeal, or of application for leave to appeal, unless the judge shall otherwise order; and the judge may order the execu- tion of his decree or order to be suspended upon such terms as he sees fit." (Ai) Rule 87. Rule 88. {g^) [" In the hearing of a probate ap- peal, the first duty of the appellant is to establish his right to appeal. Ordinarily, unless this is made afiBrmatively to ap- pear, the appeal will be dismissed without further examination." Barrows J. in Pet- tingill V. Pettingill, 60 Maine, 419. As to notice of appeal, see Sheldon v. Court of Probate of Johnston, 5 E. I. 436 ; Shaw V. Newel), 9 R. I. 111.] (A) On referring to this form it will be found that it is not a notice of applica- tion for leave to appeal against an inter- locutory order, but a notice that the party has already appealed against a final order. (/|i) [The judgment of the appellate [574] court is only upon the order, &c. from which the appeal is talcen, and is certified to the probate court, where further pro- ceedings are had, or are stopped, as if the decision had been made by that court. The appeal gives no iurisdiction to the appellate court to proceed in the settle- ment of an estate, but only to reconsider the order, &c. appealed from; and its judgment is to be carried into effect by the probate court, whose jurisdiction over the cause and the parties is not taken away by the appeal. Metcalf J. in Dun- ham V. Dunham, 16 Gray, 577, 578 ; Cur- tiss V. Beardsley, 15 Conn. 523 ; Small v. Haskins, 26 Vt. 218; Fletcher v. Fletcher, 29 Vt. 103.] CH. 11.] OF THE GKOUNDS OF EEVOCATION. 643 Some authorities maintain that if the ordinary committed ad- ministration to the wrong party, and then committed it Second to the right, the second grant was a repeal of the first, f^^^l without any sentence of revocation ; (i) but in other '""""e'"' cases it has been held that the first is not avoided ex- without re- cept by judicial sentence. (/) And the practice was, to first: call in and revoke * the first administration before the second was granted. (^) So, before revocation of a probate, the court will not grant a new one. (I) If the bishop of a diocese, as he ought, had granted administra- tion of the goods of an intestate, not having bona notabilia, to one, and the archbishop had granted administration of the same goods to another ; in this case the effect of the first administration was suspended till the other was repealed by sentence, (m) But after an administration by an archbishop, if the bishop to whom it belonged granted administration, and then the first ad- ministration was repealed, the administration granted by the bishop before the repeal was held to stand good, (w) And in all cases where the first administration is repealed, the second stands good, though granted after the grant of the first, and before the repeal of it. (o) It remains to consider what are sufficient errounds for ^i^^t are ,1 j_- r „ , . . sufficient tne revocation or a probate or letters of administra- grounds for i-:„ y T\ the revoca- tion, (ol) tion or re- It has already appeared, that where an executor ob- ^^'^^^ ' (i) Newman v. Beaumond, Owen, 50; 4 Burn E. L. 293 ; Godolph. pt. 2, c. 31, s. 4; [Ex pane Earlier, 2 Leigh, 719; Burnley v. Duke, 1 Kand. 108 ; Ragland V. King, 37 Ala. 8 ; Haynes v. Meeks, 20 Cal. 288; Grande v. Chaves, 15 Texas, 550; Petigru v. Ferguson, 6 Rich. Eq. 378; People v. White, U Bl. 341 ; M'Lau- rin V. Thompson, Dudley (S. Car.), 335.] (j) Pratt V. Stocke, Cro. Eliz. 315; Toller, 126; [White v. Brown, 7 T. B. Mon. 446 ; Coltart v. Allen, 40 Ala. 155.] (k) Toller, 126 ; [Petigru v. Ferguson, 6 Rich. Eq. 378.] But see In the Goods of Langley, 2 Robert. 407, where an ad- ministration granted to a woman, falsely swearing herself to be the wife of the de- ceased, was, after the necessary decrees had been taken out, and attempts made to serve her, but without success, declared to be null and void, and administration de- creed to the lawful widow, notwithstand- ing the prior administration was outstand- ing. See, also. In the Goods of Sparke, 17 Jur. 812. (l) Toller, 75 ; Rains v. Commissary of Canterbury, 7 Mod. 146, 147. (m) Godolph. pt. 2, c. 31, s. 5. (n) Sir J. Nedham's case, 8 Co. 135 6. (o) Com. Dig. Administrator, B. 3, cit- ing Charnock v. Currey, 2 Brownl. 119. {(A) [See Emerson v. Bowers, 14 Barb. 658. Some of the grounds of revocation are : that the probate court has no juris- diction, and consequently its proceedings [5T5] 644 OF THE REVOCATION OF PROBATE, ETC. [PT. I. BK. VI. of pro- bates : tains probate of a will in common form, he may be after- wards cited by a next of kin, to prove it per testes, or in are absolutely void, Tebbetts v. Tilton, 31 N. H. 273; Sigourney v. Sibley, 21 Pick. 101 ; S. C. 22 Pick. 507 ; Cutts v. Haskins, 9 Mass. 543 ; Holyoke v. Has- kins, 5 Pick. 20; Wilson v. Frazier, 2 Humph. 30 ; Johnson v. Corpenning, 4 Ired. Eq. 216 ; ante, 292, note (p) ; Cottle, appellant, 5 Pick. 480 ; Morgan v. Dodge, 44 N. H. 255 ; Ex parte Barker, 2 Leigh, 719; Dole w. Irish, 2 Barb. 639; People K. White, "11 III. 341; Eisk v. Norvel, 9 Texas, 13 ; Langworthy u. Baker, 23 111. 484 ; that the judge of probate was in- terested in the case, ante, 292, note (p); post, 587, note (e); Coffin v. Cottle, 5 Pick. 480 ; Echols v. Barrett, 6 Geo. 443 ; Stearns u. Wright, 51 N. H. 600 ; but see Whitworth v. Oliver, 39 Ala. 286 ; that the person whose will has been proved or upon whose estate administra- tion has been granted, is still living ; ante, 409, note (a) ; post, 584, note {q), 586, note (a) ; Hooper v. Stewart, 25 Ala. 408 ; that the letters testamentary or of ad- ministration have irregularly or illegally issued ! post, 587, 588, and notes ; Kit- tredge v. Eolsom, 8 N. H. 109 ; Mills v. Carter, 8 Blackf. 203 ; McCord v. Fisher, 13 B. Mon. 193 ; Moore v. Smith, 11 Rich. (Law) 569; Patton's Appeal, 31 Penn. St. 465 ; Creath v. Brent, 3 Dana, 129 ; Griffith V. Frazier, 8 Cranch, 9 ; Mathews V. Daubthill, 7 Ala. 273 ; Carow v. Mow- att, 2 Edw. Ch. 57 ; Springs v. Erwin, 6 Ired. 27 ; Morgan v. Dodge, 44 N. H. 255 ; Lees V. Browning, 15 Ala. 495; that the cause of a limited or qualified administra- tion has ceased to exist, Morgan v. Dodge, 44 N. H. 260, 261, and instances stated and cases cited ; State v. Williams, 9 Gill, 173 ; Patton's Appeal, 31 Penn. St. 465. See, also, Barber v. Converse, 1 Redf. Sur. 330; Gasque v. Moody, 12 Sm. & M. 153. Where a will is admitted to probate without notice or citation, as required by statute, the probate is erro- neous, and will be vacated on application to the court by those entitled to notice. Lawrence's Will, 3 Halst. Ch. 215; Lees V. Browning, 15 Ala. 495; Roy v. Segrist, 19 Ala. 810 ; Gray J. in Waters v. Stick- ney, 12 Allen, 15. As to revoking letters of administration, obtained npon a false suggestion of a matter of fact, and. with- out due notice to the party rightfully en- titled to administration, see Proctor v. Wanmaker, 1 Barb. Ch. 302; Kerr v. Kerr, 41 N. Y, 272 ; Wallace v. Walker, 37 Geo. 265. A failure by an executor to comply with the condition of his appoint- ment, that he should give bonds for the faithful performance of his duties, "would furnish good cause to revoke the appoint- ment. But such revocation would not be justified, unless the circumstances indi- cated intentional wrong or gross negli- gence. It would be quite unjust and irreg- ular, that an executor, who had been duly appointed, and had filed a bond supposed to be proper and suitable, should be re- moved without notice and opportunity to file a new bond. Wingate v. Wooten, 5 Sm. & M. 245. Letters testamentary can be properly issued only where the condi- tion of the appointment of executor has been complied with. If issued when the bond required by law has not been given, they may be properly revoked as having is- sued improvidently, and new letters would be issued when the proper bond was given." " The power to act as executor, and to ad- minister the estate, is dependent on giving the bond, and is suspended until that is done." Bell C. J. in Morgan u. Dodge, 44 N. H. 261, 262. Where letters of ad- ministration are revoked for informality or illegality, new letters may be granted to the same person without a new applica- tion or notice in Now Jersey. Delany v. Noble, 3 N. J. Eq. 559. It is provided by statute, in Massachusetts, that when an executor or administrator residing out of the state, having been duly cited by the probate court, neglects to render his ac- counts and settle the estate; or when an executor or administrator becomes insane CH. II.] OF THE GROUNDS OF REVOCATION. 645 solemn form, (j?) And upon this citation,- if the executor does not sufficiently prove the will, the probate will be revoked. If the will has been proved in solemn form, either by the execu- tor himself, in the first instance, or upon citation as above stated, and the next of kin have been cited to see * proceedings, they cannot afterwards, by a fresh citation, again put the executor on proof of the will, (^q) But if fraud can be shown, or if a later distinct will be set up, then the parties having an interest under such later will may again cite the executor, who has succeeded or otherwise incapable of discharging the trust, or evidently unsuitable therefor, the probate court may remove him ; and thereupon the other executor or adminis- trator, if there is any, may proceed in dis- charging the trust as if the one removed were dead. If there is no other executor or administrator, the court may commit administration of the estate not already administered to such person as shall be deemed fit, in like manner as if the exec- utor or administrator removed were dead. Genl. Sts. c. 101, § 2. As to when an ex- ecutor or administrator becomes "evi- dently unsuitable," see Hussey v. Coffin, 1 Allen, 354 ; Drake u. Green, 10 Allen, 124; Thayer v. Homer, 11 Met. 104; Winship u. Bass, 12 Mass. 198. As to the power of the court in Pennsylvania to vacate letters of administration, in vari- ous eases, see Hossetter's Appeal, 6 Watts, 244; Ex parte Taggart, 1 Ash. 321; Cohen's Appeal, 2 Watts, 175; Webb V. Dietrich, 7 Watts & S. 401 ; McCaffrey's Estate, 38 Penn. St. 331. An administrator, who fails to give the required bonds, may be removed ; .Suc- cession of De Flechier, 1 La. Ann. 20 ; Heydock v. Duncan, 43 N. H. 95 ; Webb V. Dietrich, 7 Watts & S. 401 ; Devanport V. Irvine, 4 J. J. Marsh. 60 ; so one who refuses to inventory property when rea- sonably requested with suitable guaran- ties. Andrews v. Tucker, 7 Pick. 250. See Booth v. Patrick, 8 Conn. 106 ; Minor v. Mead, 3 Conn. 289 ; Oglesby v. Howard, 43 Ala. 144. If one of several executors persists in preventing others from inspecting or using the papers, and thereby retards the settlement of the es- tate, it is such mismanagement as affords ground for removal ; Chew's Estate, 2 Parsons, 153 ; so where an executor or administrator has refused to perform and has knowingly violated the duties of his trust; Marsh v. The People, 15 111. 284; Chew V. Chew, 3 Grant, 289 ; Rogers v. Morrison, 21 La. Ann. 455 ; or is squan- dering the estate ; Newcomb v. Williams, 9 Met. 525; Emerson v. Bowers, 14 Barb. 658; so where his report shows upon its face that he had given an unauthorized preference to creditors, in distributing the assets. Foltz v. Prouse, 17 111. 487. On the question, whether removal from the state by the executor or administrator, is sufficient ground for vacating his appoint- ment, see Branch Bank v. Donelson, 12 Ala. 741 ; Hardaway v. Parham, 27 Miss. 103; Hostetter's Appeal, 6 Watts, 244; Harris w. Dillard, 31 Ala. 191 ; Succession of McDonogh, 7 La. Ann. 472 ; Yerkes v. Broom, 10 La. Ann. 94; Hall v. Monroe, 27 Texas, 700. As to a case where an executor at the time of his appointment was known to reside out of the state, see Wiley V. Brainerd, 11 Vt. 107, and the re- marks of Williams C. J. ; Walker v. Tor- rance, 12 Geo. 604; Brown o. Strickland, 28 Geo. 387. The court may, of its own motion, institute and carry on proceedings to revoke letters testamentary, which they believe have been irregularly issued. County Court of Mecklenburgh v. Bissell, 2 Jones (Law) 387.] (p) Ante, 334. (q) Ante, 334 et seq. [576] 646 OF THE REVOCATION OF PROBATE, ETC. [PT. I. BK. VI. in proving in solemn form, and obtain a revocation of the pro- bate, (r) If probate or letters of administration had been granted by the wrong jurisdiction, as by a bishop, when there were nota notabilia, or by an archbishop, when there were not, it was a cause of nul- lity in the former case and of reversal in the latter, (s) It was held in Nicol v. Askew, (€) that probate of a testamen- tary paper, in the nature of a codicil, having been granted by con- sent in common form, could not afterwards be revoked on the al- legation that the conditions on which such consent was given had not been complied with, there being no proof of fraud or circum- vention practised either upon the court or the parties. With respect to the question as to what shall be a just ground f 1 tt r f ■^°'" ^^® revocation of letters of administration, (iP) it has been said that, at common law, the ordinary might repeal an administration at his pleasure ; (u) but now since the statute 21 Hen. 8, c. 5, when it is granted it cannot be repealed, unless for a just cause, (v) So where administration is granted (fi) [See Hubbard v. Smith, 45 Ala. 516; Dowdy v. Graham, 42 Miss. 451.J (u) Brown v. Wood, Aleyn, 36 ; Go- dolph. pt. 2, c. 31, s. 4. {v) .Treat, on Eq. bk. 4, pt. 2, c. 1, s. 5 ; [Taylor S- stamps, and pay what shall be wanting to make up the duty which ought to have been paid at first on such probate or letters of administration, he or she shall forfeit the sum of one hundred pounds, and also a further sum, at and after the rate of ten pounds per centum on the amount of the sum wanting to make up the proper duty." (c) Sect. 44. "From and after the expiration of three calendar Sect. 44. * months from the passing of this act (11th July, 1815), ticaUourts ^* ^^^^^ "°* ^^ lawful for any ecclesiastical court or per- not to son to call in and revoke, or to accept the surrender of take sur- ^. -i renders of any probate or letters of administration, on the ground &c. oalhe Only of too high or too low a stamp duty having been on?y of P^i'i thereon, as heretofore hath been practised ; and if duty paid ^"y ecclesiastical court or person shall so do, the com- thereon. missioners of stamps shall not make any allowance what- ever for the stamp duty on the probate or letters of administra- tion which shall be so annulled." Sect. 45. " And whereas it has happened in the case of letters (c) See Lacy v. Ehys, 4 B. & S. 873 ; post, 615. [603] PT. I. BK. VII.] ON PROBATES AND LETTERS OF ADMINISTRATION. 673 of administration on which the proper stamp duty hath not been paid at first, that certain debts, chattels real, or other gg^,. 45 effects due or belonaring to the deceased, have been found Commis- '^ ° _ _ sionera of to be of such great value that the administrator hath not stamps mav civs been possessed of money sufiicient, either of his own or of credit for the deceased, to pay the requisite stamp duty, in order probate^"" to render such letters of administration available for the of admim™ recovery thereof by law. And whereas the like may oc- ''""•''<;" i" , . •' cei-tam cur again, and it may also happen that executors or persons c^s^s. entitled to take out letters of administration may, before obtain- ing probate of the will or letters of administration of the estate and effects of the deceased, find some considerable part or parts of the estate and effects of the deceased so circumstanced as not to be immediately got possession of, and may not have money, sufficient, either of their own or of the deceased, to pay the stamp duty on the probate or letters of administration which it shall be necessary to obtain;" it is enacted, "That from and after the passing of this act (11th July, 1815), it shall be lawful for the said commis- sioners of stamps, on satisfactory proof of the facts bj'^ affidavit or solemn affirmation, in any such case as aforesaid which may appear to them to require relief, to cause the probate or letters of admin- istration to be duly stamped for denoting the duty payable or which ought originally to have been paid thereon, and to give credit for the duty, either upon payment of the before mentioned penalty, or without, * in cases of probates or letters of administra- tion already obtained, and upon which too little duty shall have been paid, and either with or without allowance of the stamp duty akeady paid thereon, as the case may require, under the provisions of this act ; provided in all such cases of credit that security be first given by the executors or administrators, together with two or more sufficient sureties to be approved of by the said commission- ers, by a bond to his majesty, his heirs or successors, in double the amount of the duty, for the due and full payment of the sum for which credit shall be given, within six calendar months, or any less period, and of the interest for the same, at the rate of ten pounds per centum per annum, from the expiration of such period until payment thereof, in case of any default of payment at the time appointed ; and such probate or letters of administration, being duly stamped in the manner aforesaid, shall be as valid and VOL. I. 43 [604] 674 OF THE STAMP DUTIES [PT. I. BK. VII. Sect. 46. Commis- sioners may ex- tend tiie credit, if necessary. available as if the proper duty had been at first paid thereon, and the same had been stamped accordingly." Sect. 46. " Provided always, that if at the expiration of the time to be allowed for the payment of the duty on such probate or letters of administration, it shall appear to the satisfaction of the said commissioners that the executor or administrator to whom such credit shall be given as aforesaid shall not have recovered effects of the deceased to an amount sufficient for the payment of the duty, it shall be lawful for the said commissioners to give such further time for the payment thereof, and upon such terms and conditions as they shall think expedient." Sect. 47. " Provided also, that the probate or letters of admin- Sect. 47 istration so to be stamped on credit as aforesaid shall be Probateor deposited with the said commissioners of stamps, and adminis- shall not be delivered up to the executor or admiuistra- stamped on tor until payment of the duty, together with such inter- be^ depos- est as aforesaid, if any shall become due ; but the same the^cTm- shall nevertheless be produced in evidence by some offi- missioners. cer of the Commissioner of stamps, at the expense of the executor or administrator, as occasion shall require." * Sect. 48. " The duty for which credit shall be given as afore- said shall be a debt to his majesty, his heirs or succes- sors, from the personal estate of the deceased, and shall be paid in preference to and before any other debt what- soever due from the same estate ; and if any executor or administrator of the estate of the deceased shall pay any other debt in preference thereto, he or she shall not only be charged with and be liable to pay the duty out of his or her own estate, but shall also forfeit the sum of five hundred pounds." Sect. 49. " If before payment of the duty for which credit shall be given in any such case as aforesaid, it shall become necessary to take out letters of administration de bonis non of the deceased, it shall also be lawful for the said commissioners to cause such letters of administration de bonis non to be duly stamped with the particular stamp provided to be used on letters of administration of that kind, for denoting the payment of the duty in respect cred'i't'shall of the effects of the deceased, on some prior probate or e given, jg^tej-g q£ administration of the same effects, in such [605] Sect. 48. Duty for whicb credit shall be given to be a debt to the crown. Sect. 49. Provisions for the case of letters of admin- istration de bonis non, taken out before payment of the duty for which PT. I. BK. VII.J ON PEOBATES AND LETTERS OF ADMINISTEATION. 676 and the same manner as if the duty had been actually paid, upon having the letters of administration de bonis non deposited with the said commissioners, and upon having such further security for the payment of the duty as they shall think expedient ; and such letters of administration shall he as valid and available as if the duty for which credit shall be given has been paid." It has been decided that this section authorizes the commission- ers of stamps to stamp letters of administration de bonis non on security given, and without payment of the duty, as well in cases where too low a duty has been paid on the original letters of ad- ministration, as when such letters of administration have been originally stamped on credit. (cZ) By sect. 50 it is further enacted, in regard to probate of wills and letters of administration, " That where any part of 1 1 1 • -1 1 n 1 n n Sect. 50. the personal estate which the deceased was possessed of Directions or entitled to shall be alleged to have been trust pi-op- affidavits'^ erty, * if the person or persons who shall be required to tOTs^^&g"' make any affidavit or affirmation relating thereto, con- '''^^"^'"S f ormably to the provisions of the said act of the forty- 'and, re- eighth year of his majesty's reign, (e) shall reside out of trust prop- England, such affidavit or affirmation shall and may be ^ ^' made before any person duly commissioned to take affidavits by the court of session or court of exchequer in Scotland, or before one of his majesty's justices of the peace in Scotland, or before a master in chancery, ordinary or extraordinary in Ireland, or before any judge or civil magistrate of any other country or place where the party or parties shall happen to reside ; and every such affi- davit or affirmation shall be as effectual as if the same had been made before a master in chancery in England, pursuant to the directions of the said last mentioned act." Sect. 51. " Provided always, that where it shall be proved by oath or proper vouchers, to the satisfaction of the said gect. 51. commissioners of stamps, that an executor or administra- ^u'jy q™ °* tor had paid debts due and owing from the deceased, and ^™''^g®^ payable by law oub of his or her personal or movable made in , respect of estate, to such an amount as, being deducted from the debts, if amount or value of the estate and effects of the deceased, three for or in respect of which a probate or letters of admin- J'^"'*' istration, or a compensation of a testament, testamentary or dative, (d) Doe V. Wood, 2 B. & Aid. 724. (e) Seepost, 609, 610, 611. [606] 676 OF THE STAMP DUTIES [PT. I. BK. VII. shall have been granted, after the thirty-first day of August, 1815, or which shall be included in any inventory exhibited and recorded in a commissary court in Scotland as the law requires, after that day, shall reduce the same to a sum, which, if it had been the whole gross amount or value of such estate and effects, would have occasioned a less stamp duty to be paid on such probate or letters of administration, or confirmation or inventory, than shall have been actually paid thereon under and by virtue of this act, it shall be lawful for the said commissioners to return the difference, pro- vided the same shall be claimed within three years after the date * of such probate or letters of administration or confirmation, or the recording of such confirmation as aforesaid ; but where by reason of any proceeding at law or in equity, the debts due from the de- ceased shall not have been ascertained and paid, or the effects of the deceased shall not have been recovered and made available, and in consequence thereof the executor or administrator shall be prevented from claiming such return of duty as aforesaid within the said term of three years, it shall be lawful for the commission- ers of the treasury to allow such further time for making the claim as may appear to them to be reasonable under the circumstances of the case." By stat. 5 & 6 Vict. c. 79, s. 23, after reciting that by the stat. 5 & 6 Vict ^^ Geo. 3, c. 164, " the commissioners of the treasury c. 79, s. 23. are authorized to allow time for making claims for a return of stamp duty paid upon probates of wills and letters of administration, in cases where an executor or administrator hath paid debts out of the personal or movable estate of any deceased person, and it is expedient to authorize the commissioners of stamps and taxes to allow time for making such claims ; " it is enacted, " That where it shall be proved by oath and proper vouchers, to the satisfaction of the said commissioners of stamps and taxes, that an executor or administrator hath paid debts due and owing from the deceased, and payable by law out of his or her personal or movable estate, (/) to such an amount as, being deducted (^) * from the amount or value of the estate and effects (/) These words mean snch debts as his will for their payment. Percival v. of themselves and in their own nature The Queen, 3 H. & C. 217. and character are payable out of the per- {g) It was held in the construction of sonal estate, and have no relation to any this enactment, that if two probates were provision which a testator may make in taken out, the one in the province of Can- [607] [608] PT. I. BK. VII.] ON PROBATES AND LETTERS OF ADMINISTRATION. 677 of the deceased for or in respect of which a probate or letters of administration shall have been granted in England after the thirty- first day of August, 1815, or which shall be included in any inven- tory duly exhibited and recorded after that day in a commissary court in Scotland, shall reduce the same to a sum which, if it had been the whole gross amount or value of such estate or effects, would have occasioned a less stamp duty to be paid on such pro- bate, or letters of administration or inventory, than shall have been actually paid thereon, it shall be lawful for the said commissioners of stamps and taxes, and they are hereby required, to return the difference, provided the same shall be claimed within three years after the date of such probate or letters of administtation, or the recording of such inventory as aforesaid ; but where, by reason of any proceeding at law or equity, the debts due from the deceased shall not have been ascertained and paid, or the effects of the de- ceased shall not have been recovered and made available, and in consequence thereof the executor or administrator shall be pre- vented from claiming such return of duty as aforesaid, within the said term of three years, it shall be lawful for the said commis- sioners of stamps and taxes to allow such further time for mak- ing the claim as maj' appear to them to be reasonable under the circumstances of the case." By Stat. 24 & 25 Vict. c. 92, s. 3, no return of duty " shall be made or allowed in respect of any voluntary debt due stat. 24 & from any person dying after June 28, 1861, which shall c. 92, s. 3. be expressed to be payable on the death of such person, of",'^,'"™ or payable under any instrument which shall not have lespect of ^ ^ •^ voluntar}' been hond fide, delivered to the donee thereof three debts. months before the death of such person." * Besides these enactments, it is provided by statute 55 Geo. 3, c. 184, s. 8, "That all the powers, provisions, clauses, ssGeo.a.c. regulations and directions, fines, forfeitures, pains and powers terbury, in respect of assets there, and amount of the debts, and then estimate the other in the province of York, in re- the duty payable on the remainder, and spect of assets there, and separate duties demand back the difference between such paid on each probate, and the executors duty and the aggregate of the sum paid afterwards pay debts indiscriminately out on the two probates. K. v. Commission- of the whole personalty, they were not en- ers of Stamps, 9 Q. B. 637. Assets situ- titled to add together the amount in re- ate abroad are not to be taken into the spect of which the two probate duties account. Q. B. Feb. 1849; 13 Jurist, were paid, deduct from the gross sum the 62-i. [609] 678 OF THE STAMP DUTIES [JPT. I. BK. VII. penalties, contained in and imposed by the several acts and provi- sions of _ former acts of parliament relatiner to the duties hereby repealed, to extend ,^, , ? ,. , . '' . to this act. and the several acts of parliament relating to any prior duties of the same kind or description, shall be of full force and effect vrith respect to the duties hereby granted, and to the vellum, parchment and paper, instruments, matters and things charged or chargeable therewith, as far as the same are or shall be applicable, in all eases not hereby expressly provided for, and shall be observed, applied, enforced, and put in execution, for the raising, levying, collecting, and securing of the said duties hereby granted and otherwise relating thereto, so far as the same shall not be superseded by, and shall be consistent with, the express provision of this act, as fully and effectually to all intents and purposes as if the same had been herein repeated and specially enacted with reference to the said duties hereby granted." It is therefore necessary to recur to some of the provisions of the earlier statutes. By stat. 48 Geo. 3, c. 149, s. 35, it is enacted that " The pro- 48 Geo. 3, bate of the will of any person deceased, or the letters of Probates of administration of the effects of any person deceased, &c. ■wills and litters of adminis- tration valid as to trust prop- erty, al- though the value thereof be not cov- ered b}- the stamp duty. &c. shall be deemed and taken to be valid and availa- ble by the executors and administrators of the deceased, for recovering, transferring, or assigning any debt or debts, or other personal estate or effects, whereof or whereto the deceased was possessed or entitled, either wholly or partially, as a trustee, notwithstanding the amount or value of such debt or debts, or other personal estate or effects, or the amount or value of so much thereof, or such interest therein, as was trust property in the de- ceased (as the case may be) shall not be included in the amount or value of the estate in respect of which the stamp duty was paid on such probate or letters of administration." * And by s. 36 of the same statute, it is provided, that where the executors or administrators of any person deceased shall be desirous of transferring, or of receiving the div- idends of any share standing in the name of the deceased, of and in any government or parliamentary stocks or funds, transferable at the bank of England, or of and in the stock and funds of the Governor and Company of the Bank of England, or of and in the stock and funds of any [610] Where ex- ecutors, &c. allege, that any property ■was vested in the de- ceased, as a trustee, a special affi- davit thereof FT. I. BK. VII.] ON PROBATES ANU LETTERS OF ADMINISTRATION. 679 other company, corporation, or society whatever, passing ""^y be re-, by transfer in the books of such company, corporation, the several &c. under any such probate or letters of administration, specified! and shall allege that the deceased was possessed thereof or enti- tled thereto, either wholly or partially, as a trustee ; the bank and any other corporation, &c. or their officers may, for their indemnity, require an affidavit (A) or affirmation of the fact, as in s. 37 is mentioned, if it shall not otherwise appear, and there- upon may permit such executors or administrators to transfer the stock or fund in question, and receive the dividends thereof^ without regard to the stamp duty on the probate or letters. And where the executors or administrators of any person deceased shall have occasion to recover any debt or other personal estate due to the deceased, and shall allege that he was possessed thereof, or entitled thereto, either wholly or partially, as a trustee ; the per- son liable to pay such debt may require a like affidavit as afore- said, and thereupon make over such debt or effects to such exec- utors, &c, regardless of such stamp duty as aforesaid ; and where the executors, &c. of any person deceased shall have occasion to assign or transfer any debts due to the deceased, or any chattels real, or other personal estate, whereof or whereto the deceased was possessed or entitled, and shall allege that the same were due to, or vested in him, either wholly or partially, as a trustee, the person to whom or for whose use such debts, chattels real, &c. shall be proposed to be assigned, may require such affidavit as aforesaid, and thereupon * accept such assignment or transfer, re- gardless of such stamp duty as aforesaid. And by sect. 37 of the same statute, upon any requisition as in sect. 36, such executors or administrators, or some per- particulars son to whom the fact shall be known, shall make a to be stated ' ^ in such special affidavit or affirmation of the facts, stating the affidavits , , by execu-' property in question and that the deceased had not any tors, &c. beneficial interest in the same, or no other than shall be trust prop- therein set forth, but was possessed of or entitled thereto, ""'■''■ wholly or in part, in trust for some other person, whose name or other description shall be specified, or for such purposes as shall be therein specified, and that the beneficial interest of the deceased, if any, in the property in question, does not exceed a certain value, also therein specified, according to the best estimate that can be (A) See ante, 606. [611] 680 OF THE STAMP DUTIES [PT. I. BK. VII. made thereof, if reversionary or contingent ;. and that the value of the estate for which the stamp duty was paid on the probate or letters is sufficient to cover all such beneficial interest, as well as the rest of such personal estate of the deceased, and for which such probate or letters have been granted, as far as the same has come to the knowledge of such executors or administrators ; and where such affidavit or affirmation is made by any other person than the executors or administrators of the deceased, they also shall make an affidavit or affirmation that the same is true, to the best of their knowledge, and that the property in question is in- tended to be applied accordingly ; which affidavits or affirmations shall be sworn before a master in chancery, and shall be deliv- ered to the party requiring the same, and be sufficient indemnity to them ; and if any person making such affidavit or affirmation shall knowingly and wilfully make a false oath or affirmation of the matters therein contained, such persons shall, on conviction, be liable to the pains inflicted on persons guilty of perjury. By stat. 39 & 40 Geo. 3, c. 72, s. 16, where due proof on oath S9&40 is made to the commissioners of stamps (which oath 72° Com- °n6 of such Commissioners may administer), that any rf'Ttamns ^^^^ ^^^' t^'i'ongb inadvertence, been proved, or that any may cancel letters * of administration have been taken out on the useless pro- bates of saine property, in more than one ecclesiastical or prerog- letters of ative court, or more than once in any such ecclesiastical trationf' court, and by reason thereof more than one stamp duty sudi^""^'^ has been paid, such commissioners may, on delivery to stamps. them of the useless probate or letters, to be cancelled, and on production of the valid probate or letters granted on any such will or property, cancel the useless probate, &c. and stamp any vellum, &c. with stamps of the like denomination and value as those cancelled, without taking any money for the same. By stat. 41 Geo. 3, c. 86, s. 3, after reciting that " it is expe- dient that the duties payable in respect of probates or c. 86, 8. 3. letters of administration should not be paid more than To iDrcvGnt the double once ou the same estate ; " it is enacted, " that it shall duti?8^"the b® lawful for the said commissioners of stamps, and they fiTO"sha/f ^^^ hereby authorized and required to provide a stamp provide a or mark distinguishable from all other stamns or mai'ks stamp for -, . , . , . markinft used in relation to any stamp duties, for the purpose of wiUs'^or lei Stamping or marking any piece of vellum, parchment, or [612] PT. I. BK. VII.] ON PROBATES AND LETTEES OF ADMINISTRATION. 681 paper, whereon any probate of any will or letters of ad- ^P "f a^- niinistration shall be engrossed, printed, or written, in [ion, leiat- relation to any estate in respect whereof any probate or es?ate in letters of administration shall have been before taken thereof out, and the full amount of the duties payable thereon, 5!,'(e3'"^g by any act or acts of parliament then in force, according shall have ■''' '^ nil been before to the full value of such estate, shall have been duly taken out, paid and discharged ; and in every case where any pro- duties bate or probates, or letters of administration, shall have ble'drs-^* been taken out, duly stamped according to the full value '='""'e«'i- of the estate in respect whereof the same shall have been granted, then and in such case any further or other probate or letters of administration as aforesaid, which shall be at any time thereafter applied for or in respect of such estate, shall and may be issued and granted upon any piece of vellum, parchment, or paper, stamped or marked with the stamp or mark provided by the said commissioners by virtue of this act for such other probates or letters of administration as aforesaid ; and every * such other probate or letters of administration, which shall be duly stamped or marked with such stamp or mark as last aforesaid, shall be as available in the law, and of the like force and effect in all respects whatever, as if the vellum, pai-chment, or paper whereon the same shall be engrossed, printed, or written, had been duly stamped with the stamp or mark, denoting the full amount of the duties payable in respect of the probate or letters of administration taken out on the full value of such estate ; anything in any act or acts, or this act, before contained, to the contrary thereof in any wise notwith- standing." (i) By Stat. 28 & 29 Vict, c, 104, s. 57, "If any person takes pos- session of, and in any manner administers any part of go & 29 the personal estate of any person deceased, without ob- ^J^'g^'g.^ tainina: probate of his will or letters of administration of Summary , . , ... proceed- his estate within six months after his decease, or within ings for two months after the termination of any suit or dispute probate ° respecting the will or the right to letters of administra- ''"''^^• tion, if there is any such suit or dispute that is not ended within four months after the death, the commissioners of inland revenue may sue out of the court of exchequer a writ of summons com- manding the person so taking possession and administering as (<■) See, also, stat. 5 & 6 Vict. c. 82, s. 36. [613] 682 OF THE STAMP DUTIES [PT. I. BK. VH. aforesaid to deliver to the commissioner an account of the estate of the deceased and of its value, and to pay such duty as would have been payable if probate or administration had been obtained, and the costs of the proceedings, or to show cause to the contrary ; and, on cause being shown, such order shall be made as seems just, and any such proceedings shall be a waiver of all penalties in- curred in the premises by such person as aforesaid." By sects. 68, 59, and 60, the court may refer the matter to the proper officer to report thereon, and may order a special case, or direct an issue to be tried by a jury, and error may be brought on the judgment of the court on a special case, &c. to the exchequer chamber, and thence to the house of lords. * A very important regulation, as to the consequences of not Probate, obtaining the requisite stamp, which was contained in the properly former stamp acts, and reenacted by section 8 of the cannot be s*^*' ^^ ^^°- ^' *^- -'-^^' ^^ *^^* ^° instrument not properly given in stamped shall be given in evidence. (/) Hence, where the stamp ^^ executor or administrator brings an action, in which must cover j^ jg necessary for him, at the trial, to prove his represen- on which tative character, if his case shows that he sues for a the action ^ , . n i i p i ■ is brought, greater value than is covered by the stamp or his pro- bate or letters of administration, he cannot recover ; for the in- strument, not being properly stamped, cannot be given in evi- dence ; and he is therefore excluded from the only means of show- ing the fact of his being executor or administrator, (k') Nor will it make any difference, that he is suing for a doubtful claim. (J) Again, in a suit in equity, it should seem that a party suing as executor or administrator cannot sustain proceedings to recover a larger sum than that upon which the probate duty is calcu- lated, (m) But the grant is not void by reason of an original defect of stamp ; and therefore a commission of bankrupt may be supported (j) 3 Taunt. 116. The old statute of 905; post, 616. See infra, pt. v. bk. i- 9 & 10 "W. 3, e. 2.5, s. 19, first contains ch. I. the clause enacting this prohibition, and (m) Jones v. Howells, 2 Hare, 342. it has been continued through all the sue- Where A. claimed a fund in court, as his ceeding acts, lb. The first act relating father's administrator, but the letters of to probate duty is the stat. 5 W. & M. c. administration were not stamped to a suf- 21, B. 3. ficient amount, the court refused to grant {k) Hunt V. Stevens, 3 Taunt. 113. him a stop order, until he had procured {I) lb. ; Carr v. Roberts, 2 B. & Ad. the letters to be sufficiently stamped. Christian v. Devereux, 12 Sim. 264. [614] PT. I. BK. VII.J ON PEOBATES AND LETTERS OF ADMINISTRATION. 683 on a debt due to the petitioning creditor in the charac- Grant not ter of executor, although he has not obtained a probate Je'ason^of on a sufficient stamp at the time when the commission jefect^f"^^ issues, if he afterwards procures the proper stamp to stamps. be affixed to the probate, (n) So where letters of administration had been stamped * under the 41st sect, of 55 Geo. 3, c. 184 (o) (the trial of the cause having been adjourned, in order to enable the plaintiff to take advantage of that enactment), it was held that the defendant could not ob- ject that they had not been stamped within six months after the discovery of the mistake, so that a penalty had been in- curred under the 48d section, (^) and the penalty had not been paid.(^) The executor or administrator, it should seem, is Construo- bound to take out the grant to the extent of the sum he foregoing expects to receive, (r) statutes: In the case of Moses v. Grafter, (s) Lord Tenterden to what held that desperate and doubtful debts need not be in- grant eluded in the amount for which the probate duty is paid; taken'^out- and that the executor has a right to exercise his judg- ^^ ^^ ^^^^^ ment fairly and bond fide, whether a debt is doubtful or "^"^ '° *®- J •' ' ceased: bad. In Swabey v. Swabey, (i) on the death of a mortgagor, his daughter became entitled, as his heir, to the equity of mortgage redemption of an estate which he had mortgaged to the debt be- ^ _ o a longing to trustees of his own marriage settlement, and under that the owner settlement she also became entitled, as cestui que trust, mortgaged to the mortgage money. The trustees then conveyed the estate to her, subject expressly to the equity of redemption, and did not release her father's covenant for the repayment of the money. Afterwards she granted an annuity, and as a security for it, conveyed the estate and assigned the money to a trustee for the annuitant. By her will she devised the estate, but did not dis- pose of her personal estate ; and Sir L. Shad well held, that though, as between her devisee and her next of kin, the latter had no claim to the stock, yet she was, when she died, cestui que trust of her (n) Rogers v. James, 7 Taunt. 147 ; S. (?) Lacy v. Rhys, 4 B. & S. 873. C. 2 Marsh. 425. (r) Bntler v. Butler, 2 Phillim. 39. (o) Ante, 601. (s) 4 C. & P. 524. {p) Ante, 602. (i) 15 Sim. 502. [615] 684 OF THE STAMP DUTIES [PT. I. BK. VII. father's covenant for repayment ; and that, therefore, the debt re- mained, and probate as well as legacy duty was payable on it. If there were personal estates in both the provinces of * York goods in and Canterbury, and a probate was taken in the province inces: of York Only, the duty was paid upon the property in that province only, and it was not paid upon the other property, until a probate had been taken in the province of Canterbury, (m) The stamp must be of a sufficient amount to cover the value of the stamp the assets as it stood, not merely at the time of the death an amount of the deceased, but also at the date of the grant of ad- tora^ver' ministration. Thus, in a modern case, A. being pos- the value sessed of a term of years in a house and land, died as it stood •' \ at the date intestate in 1828. In 1841, his next of kin took out ad- oflhe grant .. . . T-.ini of letters, ministration to him. In the mean time B. had been wrongfully in possession, and had built a second house on the demised premises ; and it was held that the stamp on the letters, which was sufficient to cover the value of the lease at the date of the death of the deceased, but not the improved value at the date of the grant of the administration, was insufficient, (w) If a married woman, entitled as next of kin to the estate of an Case where intestate, dies without asserting her claim, leaving her husband's husband surviving, who also dies without asserting his admmis- ... trator claim, it is necessary for the next of kin of the husband, seeks to. ri-ir-i enforce a m order to eniorce the right of the wife and reduce it deceased hito possession, to take out letters of administration to ^'^^* both husband and wife, and pay stamp duty on the prop- erty for each grant of administration, (w) It will be observed that the schedule of the statute 65 Geo. 3, c. Whati "'"^'^' "^iposes an ad valorem duty where the estate is trust prop- above 201. in value, exclusive of what the deceased shall erty within the ex- have been possessed or, or entitled to, as a trustee and hbV^o.i, not beneficially, (a;) In Carr, administratrix of Walker, "■ ■ V. Roberts, («/) an intestate had granted an annuity to Ann * Smith, and afterwards by deed conveyed his property to the defendant, who covenanted to indemnify him against the payment (u) In le Ewin, 1 Cr. & Jerv. 153, 154, H. & C. 457. Affirmed in error, 3 H. & 157; S. P. S. C. 1 Tyrwh. 104, 107, by C. 193. Alexander C. B. and Bayley B. (w) Attorney General v. Partington, 3 (w) Doe V. Evans, 10 Q. B. 476. See, H. & C. 193. also. Attorney General v. Partington, 1 (x) Ante, 595, 596. (y) 2 B. & Ad. 905. [616] [617] PT. I. BK. VII.J ON PROBATES AND LETTEES OF ADMINISTRATION. 685 of the annuity. Default having been subsequently made in the payment during the intestate's lifetime, the annuitant sued his administratrix, and recovered judgment for debt and costs exceed- ing 201. ; the administratrix paid this, and then sued the defend- ant on his covenant for the amount. It was held that the right to recover this sum was a part of the intestate's estate, and ren- dered the letters of administration liable to stamp duty ; and that the intestate, if he had lived, could not have been considered, in respect of this sum, as a mere trustee for the annuitant, and hav- ing no beneficial interest ; Lord Tenterden, in giving judgment in this case, after stating the words of the act, observed, that this provision was made for the exemption of mere trustees, as where property is mortgaged in trust ; in which case, if the mortgagee's representative were bound to pay the whole amount of the duty, great injustice would be done. Here Walker, the intestate, did not stand in the position of a mere trustee ; for he had a benefi- cial interest in the covenant, since he was liable in the first in- stance to Smith, and had an interest in obtaining payment of her annuity from the defendant, to relieve himself. The law appears to be now settled that, by the terms diftyb to^ of the act of parliament, the amount of the probate duty J'^J^^^jy is to be regulated, not by the value of all the assets the value which an executor or administrator may ultimately ad- part of the minister by virtue of the wills or letters of administra- are within tion, but hy the value of such part as are at the death i3ictio""of of the deceased within the jurisdiction of the court hy '^i";^™"^' which the probate of administration are granted, (z) grants the ...,...-,. probate or Whatever may have been the origin of this junsdic- letters of tion, (a) *it is clear that it is a limited one, and can be tration: exercised in respect of those effects only which the ordinary would have had himself to administer in case of intestacy, and which must therefore be so situated as that he could have disposed of them in pios usus. (5) These principles have been adopted in several important mod- ern decisions respecting the liability to probate duty of ^^^ ^^^^ j^ the personal property of the testator, which, at the time notpay- (z) Hence it follows that probate duty (o) See ante, 402. attaches on bona notabilia in the place (6) See ante, 402 ; [Lord Abinger C. B. where the goods happen to be situate, in Attorney General v. Bouwens, 4 M. & wholly irrefpective of the question of the W. 191.] domicil of the testator. Fernandes's Ex- ecutors' case, L. K. 5 Ch. App. 314-317. [618] 686 OF THE STAMP DUTIES [PT. I. BK. VII. able in of his deatt, is in a foreign country, but which, after his r6Sp6Cl) 01 ^ ^ 111 . ■ property in death, is brought into this country by his executor. The country be- first of these was the Attorney General v. Dimond. (e) a teltafor" I" that case the testator died at Leicester on or about t^slo^n- *^® 10*^^ °^ ^^y' 1^2^' ^^^ °^ *® 2^* ^^^^^ ^^2^' *^® '??'' *h h ^'^^^ ^^® proved in the prerogative court of Canterbury, property be by the executor. The personal property of the testator into'and was sworn to be under the value of 5,000Z., and a pro- toTd'^n" J bate duty of SOL only was paid. The testator, at the tr'^b ""he *^™® '^^ ^^^ death, was a creditor of the French govern- executor: ment, to the amount of the annual sum of 32,727 francs, five per cent, consolidated, inscribed in the great book of the debt public of France, called rentes. The personal property of the said testator, not including the said rentes, was under the value of 5,000Z. After the death of the testator, in July, 1828, the ex- ecutor executed a power of attorney, authorizing Messrs. Mallet, a French house, to sell out the rentes in question. This power of attorney, together with a notarial exemplified extract of the clause in the will appointing the executors, and a notarial copj'' of the probate act, and a notarial certificate of the burial of Paul Francis Benfield, the testator, were produced by Messrs. Mallet to the bank of France, and the said rentes were thereupon sold by them at Paris, under the said power of attorney, and the produce was received by them and transmitted by bills amounting to 27,183Z. 98. 2d. sterling, on account of the executor, to Messrs. Hammers- ley & Co. * bankers of London, and was placed by them to the account of the executor, in his character of executor ; and the said Messrs. Hammersley, by his order, as executor, invested the prod- uce of the said bills in bank three per cent, annuities, in the English funds, in the names of himself and a co-trustee appointed by him, in the room of a co-executor deceased, where the same still continued. The testator, as well as the executor, was at his death, and during his lifetime, an English subject, and resident in England. The question for the opinion of the court was, whether the executor was bound to pay a probate duty on the amount of the produce of the said French rentes; and the barons, after taking time to consider, decided in the negative. Lord Lyndhurst C. B. in delivering the judgment of the court, observed, that, by the terms of the act of parliament, the amount of the duty is (e) 1 Or. & Jerv. 356 ; S. C. 1 Tyrwh. 243. [619] PT. I. BE. VII.] ON PROBATES AND LETTERS OF ADMINISTRATION. 687 regulated hy the value of the estate and effects for or in respect of which the probate is granted ; and the question therefore was, for or in respect of what estate and effects was the probate granted in the present instance ; that it could not have been granted for or in respect of the property in question, because, at the time of the death of the testator, it was in a foreign country, and, conse- quently, out of the jurisdiction of the spiritual court ; and his lordship distinguished between the liability to probate duty and that to legacy duty, (c?) inasmuch as it is not the administration of assets which renders the probate duty payable, but the local situation of the assets at the testator's death. There was, in effect, an appeal from this judgment to the house of lords, in the case of The Attorney General v. Hope, (e) where the same point arose with respect to moneys standing in the tes- tator's name in the public funds or stock of the * United States of America, and debts due to him from persons in that country. But their lordships, after hearing the case very fully and ably argued, recognized and' adopted the decision of the barons of the exchequer. And Lord Chancellor Brougham, in delivering his opinion to the house, stated that he had made inquiries of the judge of the prerogative court (Sir J. Nicholl) and the king's advocate (Sir H. Jenner), and that they confirmed the view he had taken of the jurisdiction and nature of the ordinary's office, viz, that probate never has been granted except for goods, which, at the time of the death of the party, were within the jurisdiction of the ordinary who makes the grant. (/) These two cases, in effect, have decided that French rentes and American stock, which are part of the national debt of France and America respectively, and are transferable there only, and debts due from persons in America, are not assets locally situated here. So in Pearse v. Pearse, (^) the testator, who was domiciled in England, had, in the hands of his agents in India, certain securities of the Indian government, the principal and interest of which were payable in India, either in cash, or by bills on the East India Company, at the option of the creditor. Shortly (d) The court had recently decided (e) 1 Cr., M. &. R. 530 ; S. C. 4 Tyrwh. that foreign stock, the property of a testa- 878 ; 8 Bligh, 44 ; 2 CI. & Fin. 84. tor domiciled in this country, is liahle to (/) See, however, Spratt v. Harris, 4 egacy duty. In re Ewin, 1 Cr. & Jerv. 151 ; Hagg. 405 ; ante, 364. S. C. 1 Tyrwh. 91 ; infra, pt. in. bk. T. (g) 9 Sim. 430. ch. II. [620] OF THE STAMP DUTIES [PT. I. BK. VII. before his death, he accepted an offer made by the company to have his notes converted into stock, to be registered in England, and to be salable and transferable there. The conversion was not completed at the testator's death, nor until after his will had been proved in England ; but ultimately the stock was transferred to his executors. And Sir L. Shadwell held,' on the authority of the Attorney General v. Hope, that no probate duty was payable in respect either of the notes or the stock. In the Attorney General v. Higgins, (Ji) it was held that the crown could claim duty, payable in Scotland, under the * stat. 48 Geo. 3, c. 149, s. 38, in respect of shares in certain public com- panies in Scotland, which belonged to a testator who was domiciled in England and whose will had been proved there and the duty duly paid thereon. This case proceeded on the ground that the shares were assets in Scotland and not in England. And in the Attorney General v. Bouwens, (i) the barons of the bate exchequer held that probate duty was payable upon the duty on value of Russiau, Danish, and Dutch government bonds, boi)c\s of ' ' ? foreign which Were the property of the testatrix, and were, at the time of her death, in the province of Canterbury. The question was raised upon a special verdict, which gave a descrip- tion of the instruments, and found that they were marketable se- curities within this kingdom, transferred by delivery only, and that it never had been neccessary to do any act whatever out of the kingdom of England, in order to make a transfer of any of the said bonds valid. And the barons held that these securities were to be considered as assets locally situate within the province of Canterbury at the time of the testator's death, and were, therefore, liable to the duty. Their lordships, at the same time, expressed their opinion that no ordinary in England could perform any act of administration within his diocese, with respect to debts due from persons resident abroad, or with respect to shares or interests in foreign funds payable abroad and incapable of being transferred here, and therefore that no duty would be payable on the probate or letters of administration in respect of such effects. But that, on the other hand, it was clear that the ordinary could administer all chattels within his jurisdiction : and if an instrument was cre- ated of a chattel nature, capable of being transferred by acts done here and sold for money here, there was no reason why the ordi- (h) 2 H. & N. 339. (i) 4 M. & "W". 171. [621] PT. I. BK. VII.] ON PROBATES AND LETTERS OF ADMINISTRATION. 689 nary or his appointee should not administer that species of prop- erty. That such an instrument was in effect a salable chattel, and followed the nature of other * chattels as to the jurisdiction to grant probate. Here were valuable instruments in England, the subjects of ordinary sale ; the debtors by virtue of such instru- ments, if there were any, resident abroad, out of the jurisdiction of any ordinary, and, consequently, there being no fear of conflict- ing rights between the jurisdictions who were to grant probate, (y) These principles were also recognized and acted on by Lord Langdale M. R. in Matson v. Swift, (^) where his lord- the duty is ship held that no probate duty was payable in respect abii'on" of land directed to be converted into money. And the J.*°f ^'r. learned judge adverted to the twofold character of the ^^ <=<'«-. probate, which, besides granting administration, authen- money: ticates the will, and is evidence of the character of executor ; so that the probate may be required for the purpose of proving the executor's title to personal estate, which may not be comprised in the grant of administration contained in the same probate. This decision was relied on by Wigram V. C. in Custance v. Brad- shaw, (Z) where his honor held that the share of a de- noron part- ceased partner in the freehold and copyhold estates of the ^aT prop- partnership is not personal estate for the purpose of be- ^"^'y- ing included in the value or amount in respect of which probate duty is payable. In supposed accordance with these decisions, the case of the Attorney General v. Brunning, (m) was decided by the ^^^^ ^^j^ court of exchequer. There a testator having bv a valid the price of contract agreed to sell a freehold estate for 115,000?. and traded to * received a deposit of 15,000L in his lifetime, the con- tract was specifically performed, and the remainder of the purchase- money paid to his executor after his death. And the barons held {j) It may be proper to remind the were incorrectly called bonds, not being readers, that judgment debts are assets for under seal, but being merely certificates of the purposes of the jurisdiction of the the right of the holders to claim the ordinary, where the judgment is recorded; amounts therein specified from the re- leases where the land lies ; specialty debts spective governments, where the instrument happens to be ; and (k) 8 Beav. 368. simple contract debts where the debtor is- (I) 4 Hare 315. See, also, In re De sides at the time of the testator's death. Lancey, L. R. 5 Exch. 102. See ante, 289, note (A). 1 Saund. 274 a, (m) 4 H. & N. 95. note (3). The instruments in question VOL.1. 44 [622] [623] 690 OF THE STAMP DUTIES [PT. I. BK. VII. that probate duty was not payable in respect of any portion of the 115,0002. as part of the personal estate of the testator. But this decision was reversed by the house of lords, (n) who acted on the principle that all moneys recoverable by the execu- tors by virtue of the probate, in whatever form recovered, whether through the agency of a court of equity or of a court of law, are part of the estate and effects of the testator, and are liable to pro- bate duty. And Matson v. Swift and Custance v. Bradshaw were distinguished on the ground that in neither of those cases was there any change in the nature of the property created by the obligation of ai binding^ contract, and the property in question re- mained real estate at the death of the testator ; whereas, in the present case there' was a contract binding on the testator and on the purchaser, by virtue of which the former had a right to the stipulated purchase-money on completing the purchase, the latter had a like right to the estate ; so that in equity the testator at the time of his death had a claim for 115,000?., in the event of a good title being made out, and that claim devolved on the execu- tor, (o) It was held by Sir L. Shadwell V. C. in Palmer v. Whitmore, (p) probate that where a party has a general power, under a settle- execut?on ment, over a trust fund of personalty, which he may of general exercise either by deed or will, and he elects to exercise power by j 7 will. it by a testamentary instrument, probate duty must be paid *in respect of the fund. So in the Attorney General v. Staff, (gt) Mathew Stainton bequeathed certain stock to trustees, upon such trusts and subject to such powers, &c. as Judith Staff should by deed or will direct or appoint ; and in default of ap- pointment, upon trust to pay the dividends to her during her life, and after her decease to pay the principal amongst her children. After the testator's death she executed a deed according to the mode prescribed by the will ; by which, after reciting that she was (») 8 H. L. Cas. 243. Where a testator had the son actually survived the father, bequeathed his personal estate to his son, Executors of Perry v. The Queen L. E. who died in his father's lifetime, leaving 4 Ex. 27. issue, who became entitled to the bequest (o) See, also, Forbes u. Steven, L. E. under sect. 33 of wills act (see ante, pref- 10 Eq. Cas. 178. ace, p. xviii.), it was held that theexe cu- (p) 5 Sim. 178. tors of the son were chargeable with pro- (q) 2 Cr. & M. 124; S. C. 4 Tyrwh. bate duty on the amount of the bequest in 14. the same manner as they would have been [624] PT. I. BK. VII.] ON PROBATES AND LETTERS OF ADMINISTRATION. 691 desirous of executing the power, she directed the trustees to trans- fer the fund to herself and a new trustee, upon such trusts and subject to such powers, &c. as she should by any deed, with or without power of revocation and new appointment, or by her last will, direct and appoint, with certain limitations over in default of appointment, similar to those contained in the will ; in pursuance of which deed the fund was transferred into the names of herself and the new trustee. She afterwards, by will, by virtue and in execution of that power, appointed the fund to be transferred to certain persons, in trust that the same might be consolidated with and become part of her residuary estate, and follow the disposi- tions thereof thereinafter mentioned. It was held, by the barons of the exchequer, that the deed executed by Judith Staff being an exercise of the power under the original will, the property thereby became liable to her debts, and became her personal estate, in which she had a beneficial interest, and consequently was liable to the payment of probate duty, (r) Again, in Nail v. Punter, (s) where a stock was settled by deed on a wife, for her separate use for life, and with a power of appointment by will, which she ex- ercised in favor of her husband, and appointed him executor. Sir L. * Shadwell V. C. held that, if the husband claimed the fund as his wife's executor, he must pay probate duty on it. But in Vandiest v. Fynmore, (f) George Vandiest, by his will, dated the 12th of February, 1811, devised the residue of his property to trustees, in trust, out of the interest, dividends, or an- nual produce thereof, to pay to Ann Hart an annuity of 1,000?. for her separate use for her life ; and then proceeded as follows : " I moreover empower the said Ann Hart to dispose of and be- queath the sum of 5,000?., or any part thereof, out of my effects, by her will duly executed, to any person or persons, and in such manner, and under such conditions as she shall, by her said will, think proper ; and my said executors shall, out of my effects, pay the said sum, or any part thereof, accordingly, in virtue of such will." The testator died on the 17th April, 1814 ; and probate duty was paid in respect of his estate. Ann Hart died on the 10th January, 1831, having, by her will, disposed of the 5,C00?. in pur- (r) The court seemed to be of opinion persons named, or classes of persons. 2 that the law is different where there is only Cr. & M. 134 ; 4 Tyrwh. 24. a limited power to appoint the fund among (s) 5 Sim. 563. (() 6 Sim. 570. [625] 692 OF THE STAMP DUTIES [I'T. Ii BK. VII. suance of the power given to her by the will of the testator. Sir L. Shadwell V. C. held that probate duty was not payable a sec- ond time in respect of this fund ; because here the power was given by the will of the original testator, and the appointees of Ann Hart took as if they had been named in his will. In the subsequent case of Piatt v. Routh, (m) John Ramsden, by his will, dated the 10th of March, 1825, gave the residue of his personal estate to his daughter, Judith A. Piatt, and three other persons, his executrix and executors, upon trust to permit his said daughter to receive the interest and dividends during her life, and after her decease, upon trust for such person or persons (other than and except the relations of her late husband and certain other speci6ed individuals), in such parts, shares, and proportions, and in such man- ner and form as the said Judith A. Piatt should by will appoint, and in default of appointment, in trust for the next of kin of Dyson Ramsden. The testator died in May, 1825, and after * his death, the said Judith A. Piatt received the interest and dividends of his residuary estate until her death in September, 1837. In April, 1837, she made a will, and thereby, in exercise of the power under her father's will, she gave and appointed the residue of his estate to certain persons. The barons of exchequer (on a case directed by the master of the rolls) were of opinion that, although the power of appointment in this case must be treated, as far as regarded the legacy duty, as a general and absolute power, yet that no duty was payable on the probate of the will of Judith A. Piatt in respect of the residuary estate of her father. Their lordships stated that they were aware that this opinion was directly opposed to the decision of the court of exchequer in the Attorney General V. Staff, (t)) as also to the previous case of Palmer v. Whitmore. (x) But that those cases both proceeded on the ground that property subject to a general power of appointment forms part of the prop- erty, " for and in respect of which the probate is granted ; " and it appeared to them impossible to reconcile that doctrine with the subsequent decision of the house of lords in th^ Attorney General V. Hope, («/) inasmuch as it was thereby decided that the probate is granted in respect of that property only which, but for the will, the ordinary would have been entitled to administer ; and it being quite clear that neither the ordinary nor the executor ever could (u) 6 M. & W. 756. (x) Ante, 623. (w) Ante, 624. (y) Ante, 619. [626] PT. I. BK. VII.] ON PROBATES AND LETTERS OF ADMINISTRATION. 693 have administered any part of this property ; their lordships could not hold that it was property for or in respect of which probate was granted. Their lordships added, that independently of the authority of the Attorney General v. Hope, there would be many serious difHculties resulting from the doctrine of the Attorney General v. Staff, which did not seem to have occurred to the court when that case was decided ; inasmuch as the executor is the party who is to pay the duty, and the only funds to which he can resort for reimbursement are the * general assets. What then was he to do in a case like the present, where the fund to be appointed is very large, and the general assets very small ? It might, and probably would happen in the present case, that the duty would far exceed the whole of the assets which the executor could ever possess ; and the consequence would be that he never would be able to prove at all. It was plain, from the nature of the provi- sions of the stat. 65 Geo. 3, e. 184, that the legislature did not contemplate the possibility of a case in which the duty could ever eventually exceed the amount of the assets realized by the execu- tors ; as it certainly might if the Attorney General v. Staff was followed. This opinion of the barons was afterwards confirmed by the decree of Lord Langdale, (2) and finally by the decision of the house of lords, (a) But now, by stat 23 & 24 Vict. c. 15, s. 4, " The stamp duties payable by law upon probates of wills and letters of ad- 23 & 24 ministration with a will annexed in England and Ire- s. 4. Per- land, and upon inventories in Scotland, shall be levied appointed and paid in respect of all the personal or movable estate y^ j^, g^n- and effects which any person hereafter dying shall have folj/"^''" disposed of by will, under any authority enabling such chargeable person to dispose of the same, as he or she shall think bate and fit; and for the purpose of this act such personal or duties. movable estate and effects shall be deemed to be the personal or movable estate and effects of the person so dying in respect of which the probate of the will or the letters of administration, with the will annexed, of such person are or is granted or the inven- tory is, or is required to be, exhibited or recorded, as the case may be ; and such estate and effects, and the value thereof, shall ac- cordingly be included in the affidavit required by law to be made (2) 3 Beav. 257. (a) Drake v. Attorney General, 10 CI. & Fin. 257. [627] 694 OF THE STAMP DUTIES. [PT. I. BK. VII. on applying for probate or letters of administration, in order to the full and proper stamp duty being paid." * 5. " The said last mentioned duties shall be a charge or bur- Probate ^^^ upon the property in respect of which the same are and in- gg payable, and shall be paid thereout by the trustees or duties in owners thereof to the person for the time being lawfully thereof to having or taking the burden of the execution of the will on the ^"^^^ oi" testamentary instrument, or the administration or property, management of the personal or movable estate and ef- fects of the deceased, for the benefit of the persons entitled to the personal or movable estate and effects of the deceased." If after the probate duty has been properly paid, the executor Whether if or administrator should obtain a return of a part of it, the execu- ^ ^ ^ tor.pro- under the statute, (6) by fraud on the commissioners, a turn of question would arise, whether the debt for the duty must duV^on be considered as remitted to the same situation in which sentatTon" ^* originally stood ; or whether, as the debt was once the crown actually paid, and the commissioners have allowed them- can revert ^ ± ' to the as- selves to be deluded, the crown has not lost its original sets for rG— payment, right against the estate. This point arose in Hicks v. Keat, (c) where pending an administration, and before the ac- counts were taken, the attorney general presented a petition for payment out of the assets of a sum which, under false representa- tions, had been returned to the administrator as overpaid in re- spect of probate duty. And Lord Langdale held that the applica- tion was, at all events, premature ; and that it was, therefore, unnecessary to decide the point, which, however, his .lordship appeared to treat as one of importance and difficulty. (J) See ante, 606, 607. (c) 3 Beav. 141. [628] END OF PART THE FIRST. *PART THE SECOND. OF THE ESTATE OF AN EXECUTOR OE ADMINISTRATOR. BOOK THE FIRST. OF THE TIME WHEN THE ESTATE OF AN EXECUTOR OR ADMINISTRATOR VESTS : AND OF THE QUALITY OF THAT ESTATE. In considering the nature of the estate which an executor or administrator has in the property of the deceased, it is proposed to inquire, 1. At what time his estate vests ; 2. The quality of his estate. CHAPTER THE FIRST. OF THE TIME WHEN THE ESTATE OF AN EXEOTJTOE OE ADMINISTEATOE VESTS. As the interest of an executor in the estate of the deceased is derived exckisively from the will, (a) so it vests in the Estate of executor from the moment of the testator's death. (S) ^^''<="'o''- (a) Ante, 293. poses, before probate of the will, but to all (6) Com. Dig. Administration, B. 10 ; intents and purposes, upon its probate, WooUey v. Clark, 5 B. & Aid. 745, 746 ; This they take, not merely as donees, by [Shirley o. Healds, 34 N. H. 407, 411; foroe of the gift, as zm^er- lu'iios, but by op- Johns «. Johns, 1 McCord (S. Car.), 132; eration of the rules of law controlling, Seabrookw. Williams, 3 MeCord (S. Car.), regulating, and giving effect to wills. A 371; Lane v. Thompson, 43 N. H. 320, trustee, therefore, who is but a legatee, can 325 ; Rand v. Hubbard, 4 Met. 256, 257 ; take only tkrough the executors. If a tes- Shaw C. J. in Hutchins v. State Bank, 12 tator were to appoint no executor, or di- Met. 425 ; Carlisle u. Burley, 3 Greenl. rect that the estate should go immediately 250. " It is an established rule of law, into the hands of legatees, or of one or that all the personal property of the testa- more trustees, for particular purposes, such tor Tests in the executors, for some pur- direction would be nugatory and void." [629] 696 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. Thus where the demise by an executor, the lessor of the plaintiff in ejectment, was laid two years before he had proved the will under which he claimed, it was held good, (c) So where a testa- tor had given a bailiff authority to distrain, but died almost im- mediately before the distress was taken; and, after *it had been taken in his name, his executor ratified the distress ; it was held that the plaintiff might well avow as the bailiff of the executor ; because the rent was due from the estate, and the law knows no interval between the testator's death and the vesting of the right in his executor ; as soon as he obtains probate, his right is con- sidered as accruing from that period, (c^) On the other hand an administrator derives his title wholly Estate of from ihe ecclesiastical court ; he has none until the let- adminis- ... j. f tratov. ters of administration are granted, and the property oi the deceased vests in him only from the time of the grant, (e) The property must be disposed of in an orderly coarse of administration, which the testator cannot control. Shaw C. J. in Newcomb v Williams, 9 Met. 533, 534.] (c) Roe V. Summersett, 2 W. Bl. 692. (rf) Whitehead v. Taylor, 10 Ad. & El. 210 ; 2 Per. & Dav. 367. (c) WooUey v. Clark, 5 B. & Aid. 745, 646 ; [Rand v. Hubbard, 4 Met. 256, 257 ; Hagthorp v. Hook, 1 Gill & J. 276 ; Snod- grass V. Cabiness, 15 Ala. 160; ante, 404. Where all the parties beneficially interested in the estate of a deceased person, being of age and capable, have adjusted and settled the estate without mistake or fraud, each taking his agreed share and giving the others a discharge, and all the demands against the estate are settled, an adminis- trator subsequently appointed, even if he is not an heir, cannot be allowed to defeat the arrangement and maintain trover against the parties for the property so re- ceived by them. But if any party has been defrauded in the settlement, " the party defrauded may avoid all that has been done, and the administrator will be entitled to administer upon the estate, per- haps, as if no settlement had been made. In such case the proper course would be for the party defrauded first to deliver the pi-operty received to the administrator." Parker C. J. in Hibbard v. Kent, 15 N. H. [630] 516,519; Clarke o. Clay, 31 N. H. 393; Giles V. Churchill, 5 N. H. 337 ; post, 650, note (rfi) ; Harris v. Seals, 29 Geo. 585. And it has been held competent, in Ver- mont, for all the heirs of a deceased per- son, if they are of age, to settle and pay the debts of the estate, and divide the prop- erty among themselves, without the inter- vention of an administrator, and neither the creditors nor debtors of the estate have any right to complain. Taylor v. Phil- lips, 30 Vt. 328; Babbitt ». Bowen, 32 Vt. 437. So in Mississippi, Henderson v. Clarke, 27 Miss. 436 ; Hargroves v. Thomp- son, 31 Miss. 211. See the remarks of Bland Ch. on the necessity of a regular administration, in Hagthorp v. Hook, 1 Gill & J. 277 et seq. See Clarke v. Clay, 31 N. H. 393. And it has been held in Pennsylvania that a sale of personal property of the deceased by his widow and heirs before administration was taken out, cannot be disturbed by the administrator unless debts are shown. Walworth v. Abel, 52 Penn. St. 370. But in New Hampshire a settlement out of court be- tween the heirs and administrator of an estate, is not a compliance with the con- dition of the bond, given to the judge of probate, to render an account when re- quired in the probate court. Clarke v. Clay, 31 N. H. 393. And in Georgia it CH. I.] OF THE TIME WHEN IT VESTS. 697 Accordingly, no right of action accrues to an administrator until lie has sued out letters of administration. In an action on a bill of exchange by an administrator, where the bill was accepted after the death of the deceased, and the acceptance, and also the day of payment, was more than six years before the commencement of the suit, but the granting of administration was less than six years before, it was held that the statute of limitations began to run from the date of administration, and not from the day of pay- ment, since there was no cause of action until the administration was granted. (/) So where to a declaration in trover to an ad- ministrator, alleging the grant of letters of administration to the plaintiff, and that the defendant knowing the goods to have been the property of the intestate in his lifetime, and of the plaintiff as administrator since his death, afterwards, and after the death of the intestate, to wit, on, &c. converted the same goods, it was pleaded that the defendant was not guilty of the premises within six years, such plea was held bad upon special demurrer, on the ground, that although it might be true that the defendant was not guilty within six years, yet the cause of action might have accrued * to the plaintiff by the grant of letters of administration within that period. (^) The proposition, however, respecting the vesting of an adminis- trator's interest, must be taken with some qualification; for it seems clear that, for particular purposes, the letters of administra- tion relate back to the time of the death of the intestate, and not to the time of granting tliem. (A) Thus, although it has been held was decided that a division of a testator's Abr. 399, tit. Relation, A. pi. 1 ; Bro. estate, by tlie legatees under the will, by Abr. Relation, 29, 46 ; 2 Roll. Abr. 554, consent, is no defence to an action at law. Trespass, T. pi. 1 ; Fitzh. Abr. Adminis- brought by the legally appointed admin- trator, 2; Middleton's case, 5 Co. 28 6, istrator with the will annexed, to re- and Mr. Fraser's note (c) to the last ed. ; cover the possession of the testator's prop- Com. Dig. Administration, B. 10; Wentw. erty, for the purpose of a due and legal Off. Ex. 115, 116, 14th ed. ; [Alvord v. administration. Echols v. Barrett, 6 Geo. Marsh, 12 Allen, 603 ; Colt J. in Hatch v. 443.] Proctor, 102 Mass. 353; Lawrence v. (/) Murray v. E. I. Company, 5 B. & Wright, 23 Pick. 128; Jewett v. Smith, 12 Aid. 204. See, also, Cary v. Stephenson, Mass. 309, 310 ; McVaughters v. Elder, 2 2 Salk. 421 : Perry v. Jenkins, 1 My. & Brev. (N. Car.) 307; Gilkey u. Hamilton, Cr. 118 ; post, pt. v. bk. i. oh. j. 22 Mich. 283 ; Miller v. Eeigne, 2 Hill (S. (g) Pratt v. Swaine, 8 B. & C. 285; S. Car.), 592; Poag v. Miller, Dudley (S. C. iMan, &Ryl. 451; [Benjamin w. De- Car.), 11; 2 Chitty PI. (16th Am. ed.) groot, 1 Denio, 151.] 120; Hutchins iJ. Adams, 3 Greenl. 174; {h) Godolph. pt. 2, c. 20, B. 6; 2 Roll. Shaw C. J. in Parnum w. Boutelle, 13 Met. [631] 698 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. that detinue cannot be maintained by an administrator against a person who has got possession of the goods of the intestate since his death, but has ceased to hold them prior to the grant of ad- ministration, («■) yet an administrator may have an action of tres- pass (A) or trover for the goods of the intestate taken by one be- fore the letters granted unto him ; otherwise there would be no remedy for this wrong doing. (Z) So where goods had been sold after the death of an intestate and before the grant of letters of administration, avowedly on account of the estate of the intestate, by one who had been his agent, it was held that the administra- tor might ratify the sale and recover the price from the vendee in assumpsit for goods sold and delivered, (m) And accordingly it should seem that whenever any one acting on behalf of the intes- tate's estate, and not on his own account, makes a contract with another before any grant of administration, the administration will have relation back, in order not to lose the benefit of the contract, so that the administrator may sue upon it, as made * to himself, (w) Further, it has been held, on the bare doctrine of relation, that in a case where the administrator might maintain trover for a conver- sion between the death of the intestate and the grant of adminis- tration, he may waive the tort and recover as on a contract. Thus, 159, 165, and in Wonson v. Sayward, 13 ett v. Hoitt, 20 N. H. 257 ; Colt J. in Pick. 404; Leber u. Kauffelt, 5 Watts & Hatch v. Proctor, 102 Mass. 353. The S. 445 ; Rockwell v. Saunders, 19 Barb, title of an administrator de bonis non ve- ils ; Lane v. Thompson, 43 N. H. 320, lates to the death of the testator as to all 325 ; Bullock v. Rogers, 16 Vt. 294 ; Wells assets that remain in specie and unadmin- V. Miller, 45 111. 382. If a person dies in istered, and he may recover for an injury possession of personal property, and it done to them before the date of his ap- comes to the hands of his administrator, pointment ; nor is he estopped by an ille- the title is changed, and a factor, who may gal act of a previous administrator. Bell afterwards receive the goods from the ad- v. Speight, 11 Humph. 451; ante, 472, ministrator, cannot hold them or their pro- note (c^^), 539, note {b);post, 91.5, note ceeds, on account of advances made to the (e), 961.] deceased in his lifetime, without the assent (m) Foster v. Bates, 12 M. & W. 226 ; of the administrator. Swilley v. Lyon, 18 [Brown v. Lewis, 9 R. I. 497. So a per- Ala. 552.] son to whose order money, belonging to (i) Crossfield v. Such, 8 Exch. 825. an estate, was paid before an administra- (fc) Tharpe v. Stallwood, 5 M. & Gr. tor was appointed, is accountable therefor, 760 ; [Brackett v. Hoitt, 20 N. H. 257.] without previous demand, to the admin- (l) Long V. Hebb, Style, 341, by RoUe istrator when appointed, although the C. J. ; 2 Roll. Abr. 399, tit. Relation, A. money or the avails of it never came to pi. 1; Anon. Comberb. 451; Foster w. his actual use. Clark w. Pishon, 31 Maine, Bates, 12 M. & W. 233, per Parke B. ; 503.] Searson v. Robinson, 2 Fost. & F. 351 ; (n) Bodger u. Arch, 10 Exch. 333 ; [Mauwell v. Briggs, 17 Vt. 176 ; Brack- [Brown v. Lewis, 9 R. I. 447 ] [632] CH. I.J OF THE TIME WHEN IT VESTS. 699 where money belonging to an estate at the time of his death, or due to him and paid in after his death, or proceeding from the sale of his effects after his death, has, before the grant of administra- tion, been applied by a stranger to the payment of the intestate's debts and funeral expenses, the administrator may recover it from such stranger as money had and received to his use as administra- tor, (o) So it should seem the grant of administration will have the effect of vesting leasehold property in the administrator by re- lation, so as to enable him to bring actions in respect of that prop- erty, for all matters affecting the same subsequent to the death of the intestate, and so as to render him liable to account for the rents and profits of it from the death of the intestate. (^) * Again, al- though an executor de son tort cannot plead a ret9,iner of his own debt, yet if, even pendente lite, he obtains administration, he may retain ; for it legalizes those acts which were tortious at the time, (jq) And there has been already occasion (r) to point out other acts of an administrator before administraion granted, which the relation of the letters in some measure renders valid. But the relation of the grant of administration to the death of the intestate, shall not, it is said, divest any right legally vested in another between the (o) Welchman v. Sturgis, 13 Q. B. 552 ; [Patten v. Van Vrauken, 36 N. Y. 619.] (p) Rex V. Horsley, 8 East, 410, in Lord Ellenborongh's judgment. So it is laid down in Selw. N. P. 717, 6th ed., that in ejectment by an administrator, the demise may be laid on a day after the intestate's death, but before administration granted; for the administration, when granted, will relate back, and show the title to have been in the administrator from the death of the intestate. This point was expressly decided accordingly, by the court of K. B. in Ireland, after a full consideration, in Patten v. Patten, T. 3 W. 4, 1 Alcock & Napier, 493; and Bushe C. J. in deliver- ing judgment, regards this decision as reconcilable with that of Keane v. Dee (K. B. Ireland, June, 1821, 1 Alcock & Napier, 496, note (1)), in which case it had been holden that an administrator could not justify a distress for rent (accrued out of a chattel term of the intestate after his death) made before the grant of the ad- ministration, on the ground that, although letters of administration will operate by relation, to enable an administrator to re- cover a chattel property from the time of the death of the intestate, yet it does not effectuate a legal proceeding, taken before administration granted, in order to recover such property. See, however. Bacon v. Simpson, 3 M. & W. 87, in which case an administratrix, before she had taken out administration, had contracted to assign a term for years of the intestate in a lease- hold house ; and Parke B. was of opinion, that an allegation, that she was lawfully possessed of the terra at the time of the making of the contract, could not be sup- ported. See, also, ante, 405. (q) Pyne v. Woolland, 2 Vent. 180; Williamson v. Norwitch, Style, 337 ; Vaughan u. Browne, 2 Stra. 1106; S. C. Andr. 328; Curtis v. Vernon, 3 T. E. 590; [Colt J. in Hatch v. Proctor, 102 Mass. 353, 354 ; Alvord v. Marsh, 12 Al- len, 603.] (r) Ante, 406, 407. [633] 700 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. death of the intestate and the commission of administration. Thus, in Waring v. Dewbury, (s) a landlord, who had rent due to him, died intestate ; after which the plaintiff in the action sued out execution against the defendant, who was the tenant, and lev- ied the debt upon him ; after this, administration was committed to J. S. ; who thereupon came into the court, and moved for a I'ule on the sheriff to pay him a year's rent out of the money levied, pursuant to the 8 Ann. c. 17, urging, that though he was not ad- ministrator at the time of serving the execution yet as soon as the administration was committed, it had relation to the death of the intestate, and he might bring trover for goods taken between the death of the intestate and commission of the administration. But the court held, that relations, which are but fictions of law, should never divest any right legally vested in another, between the death of the intestate and the commission of administration ; and the plaintiff in the action having duly served his execution, before the administrator had a right to demand his rent, it * was not reason- able the plaintiff should be defeated by any relation whatsoever > they did not in that case deny the authorities which gave the ad- ministrator trover, but went on a distinction between relations that are to defeat lawful acts, and such as are to punish those that are unlawful, (t^ There appears, in some instances, to be the same relation back Relation of the title of the personal representative in cases where title where the deceased had only a special property in the goods as ceasedhad '^here he had the absolute property. Thus, if an uncer- only a spe- tificated bankrupt acquired goods after his bankruptcy, cial prop- ^ ^ ^ o ^ , jr J ' erty. and died possessed of them, having been allowed to re- tain possession by the assignees, his administrator might maintain trover against a third party who had sold the goods between the period of the death of the intestate and the grant of the adminis- ' tration ; for there was a good title in the bankrupt as against all the woi'ld but the assignees, and this title passes to his administra- tor, (u) But there is no such relation back as to chattels in which (s) Gilb. Eq. Kep. 223, cited by Strange, 405 ; post, 646, note (rf). The rule that a arguendo, in Eex v: Mann, S. C. 1 Stra. party cannot be made a trespasser by re- 97 ; Fortesc. 360 ; S. C. MS. ; Viner's lation is only applicable where the act Abr. Executors, Q. pi. 29. It appears complained of was lawful at the time. 5 that in this case Powis J. dissented from M. & Gr. 760. Pratt C. J. and Eyre and Forteecue, JJ. (u) Fyson v. Chambers, 9 M. & W. (t) See, also, Rex w. Horsloy, 8 East, 460. It is to be observed that the devolu- [634] CH. I.] OF THE TIME WHEN IT VESTS. 701 the deceased had no personal interest, but held merely as the ad- ministrator of another. The bare circumstance of his dying in possession will not enable his personal representative to maintain trover even against a mere wrong- doer ; for it will be a good de- fence that the right to the goods in question has devolved on the administrator de bonis non of the original intestate', (a;) By stat. 3 & 4 W. ,4, c. 27 (entitled An Act for the Limita- tion of Actions and Suits relating to Meal Property, ^c), | & * ^• s. 6, it is enacted, that " for the purposes of this act an Adminis- administrator claiming the estate or interest of the de- claim for ceased * person, of whose chattels he shall be appointed this'act^ as administrator, shall be deemed to claim as if there had Jajn^^^^g been no interval of time between the death of such de- ^^.'^'^ without in- ceased person and the grant of the letters of administra- tervai after ,, death of tion. deceased. By 21 & 22 Vict. c. 95, s. 19, " From and after the fi & 22 1 J, , . 1-11 ^'<='- "=-95, decease of any person dying intestate, and until letters s. 19. of administration shall be granted in respect of his estate the death and effects, the personal estate and effects of such de- "eased aiid ceased person shall be vested in the iudge of the court of 'Ij'' s'*."^ ^ J (3 of adminis- probate for the time being in the same manner and to tration ,1 1 • 1 T property to the same extent as heretofore they vested in the ordi- vest in the nary. (^X J dinary. All movable goods, though in ever so many different and distant places from the executor, vest in the executor in possession presently upon the testator's death ; («/) for it is a rule distinction of law, that the property of personal chattels draws to it chattels the possession, (z) But it is otherwise of things im- personal as movable, as leases for years of lands or houses ; for of '" '™® 9^ ' ... vesting m these the executor or administrator is not deemed to be possession. in possession before entry, (a) So of leases for years of a rectory. tion of future property is now determined by the order closing the bankruptcy, and not by the certificate of discharge. See the bankruptcy act, 1869, sect. 15, sub-sect. 3, and sect. 47. (x) Elliot V. Kemp, 7 M. & W. 306; [Reeves v. Matthews, 17 Geo. 449.J (a;i) [See Jewett v. Smith, 12 Mass. 309, 310 ; Lawrence v. Wright, 23 Pick. 128; Colt J. in Hatch u. Proctor, 102 Mass. 353.] (y) Wentw. Off. Ex. 228, Uth ed. ; 11 Vin. Abr. 240. (z) 2 Saund. 47 6, note (1) to Wilbra- ham V. Snow. . (a) Wentw. Off. Ex. 228, Uth ed. See the observations of Parke B. in Barnett u. Earl of Guildford, 11 Exch. 32. But a reversion of a term, which the testator granted for a part of the term, is in the executor immediately by the death of the testator. Trattle v. King, T. Jones, 170. [635] 702 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. consisting of glebe lands and tithes for years, it may be doubtful if actual possession can be without actual entry into the glebe land. (J) But in case of a lease for years of tithes only, it was held that the executor, though in never so remote a place, should instantly, upon the setting out thereof, be in actual possession to maintain action of trespass for taking them away, (e) (6) Wentw. OfF. Ex. 229, 14th ed. ; 11 (c) lb. Vin. Abr. 240. CH. n.J OF ITS QUALITY. 703 * CHAPTER THE SECOND. OF THE QUALITY OF THE ESTATE OP AN EXECUTOR OR ADMINISTRATOR. The interest which an executor or administrator has in the goods of the deceased is very different from the absolute, proper, and ordinary interest which every one has in his own proper goods, (a) For an executor or administrator has his estate as such ill auter droit merely, viz, as the minister or dispenser of the goods of the dead. (6) Therefore, if an executor or administrator be attainted of treason or felony, the goods which he has as executor or The goods administrator will not thereby be forfeited; (c) and °* "'^.'^^oj. though disabled by such attaint from suing propria I'ure, forfeited he may stili maintain an action m auter droit as execu- der of ex- tor or administrator, (i) ^'="'"' *°- So, where an executor brought a quo minus in the court of ex- chequer, stating that he was not able to pay the king's Notappii- debt, because the defendant detained from him lOOL cable to the 1-11 1 1 • debts which he owed to him as executor of J. S., it abated; which the 6x6cutor because it could not be intended that the king's debt owes the could be satisfied with that which the plaintiff should "°^°' recover and receive as executor, (e) So though a lord of a villain might take all the villain's * own goods, yet he might not take those which the villain held as execu- tor. (/) (a) Wentw. Off. Ex. 192, I4th cd. (J) Pinchon's case, 9 Co. 88 6 ; 2 Inst. 236 ; [Sewall J. in "Weeks v. Gibbs, 9 Mass. 75, 76.] An executor has the property only under a trust to apply it for payment of the testator's debts, and such other pur- poses as he ought to fulfil in the course of his office as executor. By Ashurst J. 4 T. K. 645. (c) 1 Hale P. C. 251 ; Hawk. P. C. bk. 2, i;. 49, s. 9 ; Smith v. Wheeler, 1 Freem. 10. See, also, 33 & 34 Vict. u. 23. (d) Ante, 235. See, also, ante, 230, note (n). (e) Wentw. Off. Ex. 194, 14th ed. (/) Lit. 1.2, c. n, D. 192. [636] [637] 704 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. Upon this principle also, if the executor or administrator be- Where the comes bankrupt, with any property in his possession be- becomes longing to the testator or intestate, distinguishable from th"'^"^"^'' *^® general mass of his own property, it is not distribu- of the tes- table under the bankruptcy, (q) The assignees cannot tatordonot . ■ ,. , ■n^^ , ,. . . , -, pass: seize even money which specincaily can be distinguished and ascertained to belong to the deceased, and not to the bankrupt himself. (K) But where a person entitled to take letters of ad- ministration neglected to do so, yet remained in possession of the goods of the intestate for twelve years, and being so in possession became a bankrupt ; and a creditor of the intestate afterwards took out letters of administration, and claimed the goods from the assignees ; it was held that these goods were within the stat. 21 Jac. 1, c. 19, being property in the possession, order, and dis- position of the bankrupt, with the consent of the true owner ; and that the assignees were therefore entitled to them, (i) So where an innkeeper, who was a widow, having died intestate; two of her children, a son and daughter, took possession of her furniture and stock in trade, and carried on her business in their own names for two years after her death, during which time they paid her funeral expenses and some of her debts, but without taking out adminis- tration to her estate, and, at *the end of that time, became bank- rupts, the daughter having a few months previously retired from the business, and sold her share of it to the son. Another of the children then took out administration to the intestate, and claimed that part of her furniture and stock in trade which still remained in specie. But it was held that it belonged to the assignees, as having been in the order and disposition of the son at the time of his bankruptcy. (Je) Although an executor or administrator become bankrupt, he (g) Ludlow p. Browning, 11 Mod. 138; Jcmraett, 3 Burr. 1369, cited by Lord Ex parte Ellis, 1 Atk. 101 ; Ex parte Kenyon, in Earr v. Newman, 4 T. R. 648. Marsh, lb. 159 ; Viner v. Caddell, 3 Bsp. Under the bankruptcy of an executor and 88 ; In Serle v. Bradshaw, 2 Cr. & M. trustee, directed by the will to carry on a 148 ; S. C. 4 Tynvh. 69, where a defend- trade, and a limited sum to be paid to ant, in an action against him as adminis- him by the trustees for that purpose, the trator, being under terms to plead issua- general assets beyond that fund are not bly, pleaded plene administravit, and for liable. Ex parte Garland, 10 Ves. 110. another plea, his own bankruptcy ; it was See post, pt. iv. bk. ii. ch. ii. § i. held that the plaintiff might sign judg- (i) Fox v. Eisher, 3 B. & Aid. 135. ment as for want of a plea. (k) In re Thomas, 1 Phill. C. C. 159 ; (h) By Lord Mansiield in Howard v. S. C. 2 Mont., D. & D. 294. [638] CH. II.J OF ITS QUALITY. 705 may have a scire facias, as the bankruptcy does not af- ^^ ™*y . •' . i- •! have a set. feet his representative character. (Q /«■ •■ It must be observed that if the testator vrere a lessee for years, and the lease contained a proviso that if the lessee, or Ms m-oviso for executors, administrators, or assigns, shall become bank- of i^^^g ^ rupt, the lease shall become void, the bankruptcy of the JiYg^execu- executor will operate as a forfeiture of the lease, notwith- li"'' ^^ail ^ . . become standing the lease itself does not pass to his assignees, bankrupt: Thus in Doe v. David, (m) a lease had been granted for twenty- one years to Joseph Waters, his executors, administrators, and as- signs ; proviso, that if Joseph Waters, his executors, administra- tors, or assigns, should become bankrupt or insolvent, or suffer any judgment to be entered against him, &c. by confession or other- wise, or suffer any extent, process, or proceedings to be had or taken against him, whereby any reasonable probability might arise of the estate being extended, &c. the estate should determine and the lessor have power to reenter. Joseph Waters died dur- ing the term, and by his will devised the premises to his execu- tors on certain trusts. The surviving executor became bankrupt ; and it was held that the lessor's right of reentering thereupon accrued. Where assignees possess themselves of effects, which belong to the bankrupt as executor only, the court on a bill filed (w) „ceiver * will, to secure such effects, appoint a receiver to whom appointed , , , to whom the assignees shall account for so much as they have got assignees sll3.ll 3.C- in of the testator's estate. Where a bankrupt is an ex- count: ecutor and residuary legatee, and has paid the debts and bankrupt particular legacies out of part of the assets, if he refuses residuary to collect the rest, notwithstanding the assignees have ''^satee. not the legal interest vested in them, the court will assist them to get in the remainder in the name of the executor, (o) Again, the goods of a testator in the hands of his executor can- not be seized in execution of a judgment against the ex- The goods ecutor in his own right. (^) So if an executor dies in- tatorcan- {l) 2 Saund. 72 r, note to TJnderhill v. (p) Farr w. Newman, 4 T. R. 621, where Devereux. all the former authorities are collected (m) 1 Cr., M. & R. 405 ; S. C. 5 Tyrwh. and discussed. In this case, Buller J. 125. dissented from the rest of the court, viz, (n) Ex parte Tapper, 1 Rose, 179 ; 2 Lord Kenyon, and Ashurst and Grose Madd. Chan. 641, 2ded. JJ. The action was against the sheriff (o) Ex parte Butler, 1 Atk. 213. for a false return, and the question was, VOL. I. 45 [639] 706 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. not be debted, leaving to his executor goods which he had as L&K6I1 in 1 • 1 1 1 p execution executor, these are not assets liable to the payment oi of'the'ex- his debts, but only for the payment of the first testa- ecutor. tor's. (^) *But when an executrix used the goods of her testator as her own, and afterwards married, and then treated them as the property of her husband, it was held that she could not be allowed to object to their being taken in execution for her husband's debt ; for where an executrix or her husband have con- verted the goods, it does not lie in the mouth of either of them to say they are not the property of the husband, in a case between the executrix and one of his creditors, (r) So after a lapse of six or seven years, equity will not restrain by injunction a creditor of an executor from taking in execution property of the testator which is assets in equity, (s) However, where goods of an intes- tate had been taken possession of, and used by an administrator, in the house of the intestate, for three months after the death of the intestate, Lord Tenterden held that they could not be taken in execution for the administrator's own debt, the time, in this case, not being sufficient to make the goods the administrator's property, (i) whether certain goods of the testator, which had been seized by the sheriff under an execution against the husband of the executrix, in a house in which the hus- band and wife resided, and the testator had resided, but which had not been sold under the execution, were bound by it. In a previous case. Whale v. Booth, B. E. 25 Geo. 3, 4 T. R. 625, note (a), where the goods of the testator had actually been sold under a fieri facias against the exec- utor for his own debt, and the executor joined in a bill of sale, it was held by the court of K. B. that the property passed by the execution, and could not after- wards be seized under a writ sued out by a creditor of the testator ; upon the prin- ciple that the sale under the execution could not be distinguished from an aliena- tion by the executor. But although the two cases may thus in some degree be rec- onciled, Eyre C. J. in Quick v. Staines, I Bos. & Full. 295, considers them as en- tirely conflicting, and the law as still un- [640] settled. See, also, the observations of Sir Thomas Plumer V. C. in Ray u. Ray, Coop. 267. However, Lord Eldon C. in M'Leod V. Drummond, 17 Ves. 168, ad- verts to Farr v. Newman, as having de- cided absolutely, that the effects of tho testator cannot be taken in excution for the debt of the executor, and expresses his satisfaction of that decision. See, also, Kinderley v. Jervis, 22 Beav. 23, per Eomilly M. R. ; [Branch Bank at Mont- gomery V. Wade, 13 Ala. 427.] See infra, pt. HI. bk. I. ch. I. as to the power of an executor to dispose by sale of the goods of his testator. (q) Wentw. Off. Ex. 194, 14th ed. (r) Quick V. Staines, 1 Bos. & Pull. 293. (s) Ray V. Ray, Coop. Chanc. Cas. 264. \t) Gaskell v. Marshall, 1 Mood. & Rob. 132; S. C. 5 C. & P. 31. The learned judge, upon Quick v. Staines being cited, observed that the marriage in that case made all the difference. CH. II.] OF ITS QUALITY. 707 With reference also to the principle, that an executor or ad- ministrator holds the property of the deceased in auter Merger: . . When the droit merely, it has been laid down, that in respect to estate in land, no merger can take place of the estate held by a a*man^ '* man as executor in that which he holds in his own exetuto^r right, (m) But a distinguished writer (a;) has lately, shall merge with great force, urged an important distinction with which he ' . ll£lS t)VO— regard to this exemption from merger, viz, that when priojure. either of the two estates is an accession to the other by act of law^ there will not be any merger ; but that where the accession is by the act of the * party the less estate will merge. And this dis- tinction, although opposed to what has been laid down by some very eminent lawyers, («/) seems to be supported by the current of authorities. Thus, if the tenant for years dies, and makes him who has the reversion in fee his executor, whereby the term for years vests also in him, or if the lessee makes the lessor his executor, (s) the term shall not merge ; (a) for here the acces- sion of the estate for years is by the act of law. But if an ex- ecutor or administrator has a term for years in right of the de- ceased, and purchases the reversion, the exemption shall not prevail, but the term will merge ; for here the reversion is acquired by the party, by his own act. Thus in a case in 6 Eliz. (5) Lord Dyer laid down, that if an executor has a term and purchases the fee simple, the term is determined. And Manwood J. said, " A woman, termor for years, takes husband, who purchases the fee ; the term is extinct ; for the husband has done an act which de- stroys the term, viz, the purchase." So in a case in Brooke, (c) it was said that if a termor makes the lessor his executor and dies, this is no surrender ; for he had the term to another use ; but (u) 2 Bl. Com. 177 ; Jones u. Davies, 5 ference of the rights hinders an extinguish- H. & N. 767. raent, because a third person is concerned (x) Mr. Preston on Conveyancing, vol. and may be prejudiced, which cannot be iii. p. 273 et seq., 309. See, also, on the by act of law." And Lord Kenyon, in same subject, Sugdea V. & P. 395, 396, Webb v. Kussell, 3 T. E. 401, says, 7th ed. "Nothing is clearer than that a term [i]) Lord Holt, in Gage v. Acton, 1 which is taken alieno jure, is not merged Salk. 326 ; S. C. 1 Lord Eaym. 520, says, in a reversion acquired suojure." "If a man hath a term in right of his wife, (z) Co. Lit. 338 4. or as executor, and purchases the rever- (a) 2 Bl. Com. 177. sion, this is no extinguishment, because (6) 4 Leon. 58. he hath the term in one right, and the re- (c) Surrender, pi. 52. version in another. In that case the dif- [641] 708 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. if the executor who has a lease for years from his testator, pur- chases the freehold, the lease is clearly extinct. And in another case, (ci) Brooke says, "a man had a lease for years, as executor, and afterwards purchased the land in fee ; the lease is extinct ; but it shall be assets, as respecting the executor." So in a case *in Moore, (e) it was held by all the justices, that if a wife has a term as executrix, and takes a husband, and the husband pur- chases the reversion, the term is extinct as to the wife, if she sur- vives, but in respect of all strangers it shall be accounted as assets in his hand. (/) The difference taken in these two last cases with respect to assets, seems to be well founded; and accordingly L. C. Baron Gilbert (£) says, that, as well in case of purchase as of descent, all agree that the term would not be extinct as to creditors. And it should seem, that in no case would the term held by an execu- tor or administrator merge in equity ; for mergers are odious in equity, and never allowed unless for special reasons. (K) At this day executors or administrators may have an estate of freehold in right of a testator or intestate ; and there is reason to incline to the opinion, that estates of this description, when held in right of a testator or intestate are equally the objects of the exemption from merger, (i) It may be observed in this place, with respect to the continu- ance of the privilege from merger, that, though a person is orig- inally entitled to a term, or to an estate of freehold, as an executor or administrator, yet in process of time he may become the owner of that estate in his own right. (K) This happens in the case of executors when the executor is also residuary legatee, and he per- forms all the purposes of the will, and holds the estate as legatee ; or when the * executor pays money of his own, to the value of the term, in discharge of the testator's debts, and with an intention (d) Extinguishment, pi. 54. made executor, and hath a term that way, (e) P. 54. Anonymous. that shall not be an extinguishment ; be- (y ) The rule laid down by Mr. Preston cause the term and the reversion are con- is strongly confirmed by an authority joined by act in law. See, also, the mod- which is not noticed by him in support of em cases of Stephens v. Bridges, Madd. it, viz, Smith v. Tracy, 1 Freem. 289, & Geld. 66 ; Jones v. Davies, 5 H. & N. where this difference was taken by Saun- 767. ders, soil, that if a lessee for years, as ex- (g) Bac. Abr. tit. Leases, E. ecutor, purchase the reversion, this shall (h) Philips v. Philips, 1 P. Wms. 41. extinguish the term, because it is his own (i) Preston on Convey. 310. act; but if one that hath a reversion be (k) See post, 646 et seq. [642] [643] CH. II.] OF ITS QUALITY. 709 to appropriate the term to his own use in lieu of the money. And in the case of administrators, when the administrator is the only person entitled to the beneficial ownership of the intestate's prop- erty, or procures a discharge from those who are to share that prop- erty with him, and all the debts of the intestate are paid. Under these and the like circumstances, the executor or administrator will have the estate in his own right ; and when he has the estate in his own right, it will be subject to merger. (J) Generally speaking, it is difficult to ascertain when the charac- ter of executor or administrator ceases, and the ownership, inde- pendent of that character, commences. Every case must depend on its own circumstances. (J^) This only is certain, that when the executor or administrator ceases to hold the estate in that character, he will hold the same in his own right, and it will be subject to mei-ger. (m) Since no man can bequeath anything but what he has to his own use, an executor cannot by his will dispose of any of the , goods which he has as executor to a legatee ; (n) although tor cannot we have seen (o) that if an executor appoint an execu- the goods tor, the goods will pass to him as the representative of tator toT the first testator ; while on the other hand, an adminis- ^"^s^tee .- trator cannot transmit any interest in the property of the intestate to his own personal representative. But, generally speaking, an executor or administrator, in his own lifetime, may dispose of and alien the assets of the but an ex- testator ; he has absolute power over them for this pur- his lifetime pose, and they cannot be followed by the creditors of Se'^afje™ the deceased, (p) This rule, however, is subject to some ^^^^^'^.^e qualifications, * which will be pointed out when this followed treatise arrives at the general discussion of the power of creditors executors and administrators, (g) ceased. (Z) 3PrestononConvey.310,311. [The (m) 3 Preston on Convey. 311. possession of personal property, which one (n) Bransby u. Grantham, 2 Plowd. acquires as an administrator, cannot be 525; Godolph. pt. 2, t. 1 7, b. 3. united to and perfect an equitable title (o) Ante, 254. which he holds in his private capacity, so [p] By Lord MansMd, in Whale v. as to defeat an action by the party having Booth, 4 T. R. 625, note to Parr v. New- the legal estate. Gamble u. Gamble, 1 1 man ; [post, 932, and note (ifi) ; Peterson Ala. 966.] V. Chemical Bank, 32 N. Y. 21, 45, 49, .50.] (.1) [See Weeks t-. Gibbs, 9 Mass. 74, (?) Seepost, pt. iii. bk. i. ch. i. [p. 932 75.] et seq.] [644] 710 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. With reference to the possession in outer droit, it has been Grant of ^eld, that if an executor or administrator grant omnia bona sua, the goods of the deceased will not pass, unless the grantor have no goods but as executor or administra- tor, (r) So if an executor releases all actions, suits, and demands whatsoever, which he had for any cause whatever, this extends only to such as he has in his own right, and not to such as he hath as executor, (s) omnia bona sua by an executor: release of all de- mands. Although a marriage is an unqualified gift to the husband of all How far a the goods and personal chattels which the wife was abso- ex^cutrix'^' lutely possessed of at that time, or became so afterwards, h«-has-'^^ in her own right, yet marriage makes no gift to him of band. the goods and chattels which belong to his wife in auter droit as executrix or administratrix, (t') Thus, if husband and wife recover judgment for a debt due to the wife as executrix, and the wife dies, the husband shall not have a scire facias upon the judgment, but the succeeding executor or administrator, (u) Still the husband is entitled to administer in his wife's right for his own safety, lest she misapply the funds, in which case he would be lia- ble. Incident to this right, he has the power of disposition over the personal estate vested in his wife as executrix or administra- trix, (a;) With When an executor, &c. will gain a set- tlement by residing on the lease- hold of the testator, &c. respect to the poor laws, it may be here observed, * that an executor or administrator will gain a settlement by estate by a residence as such upon a leasehold property of the deceased. (^) And a settlement will equally be gained, although the tenement to which he comes as ex- ecutor or administrator be under the value of 101. a year, (s) So it was held that the husband of an ad- (r) Hutchinson v. Savage, 2 Ld. Raym. 1307; Wentw. Off. Ex. 193, Uth ed. But an executor may have trespass for taking goods in his time, quare bona et catalla sua, because of the possession. By Holt C. J. in Knight v. Cole, 1 Show. 155; [post, 876 et sey,] (s) Knight V. Cole, 1 Show. 153. (t) Co. Lit. 351 a ; Thompson v. Pin- chell, H Mod. 178, by Powell J.; post, pt. 11. bk. IV. ch. I. [645] (u) Beamond v. Long, Cro. Car. 208, 227 ; S. C. W. Jones, 248 ; 2 Saund. 72 m, note to Underbill v. Devereux. [x) See infra, pt. m. bk. i. ch. iv. [p. 963 et seq.] (y) Kex V. Sundrish, Burr. Sess. Ca. 7 ; 2 Bott. 460. {z) Rex V. Uttoxeter, Burr. Sess. Ca, 538. Even though the letters be taken out for a pauper administrator by parish officers, on purpose to create the settle- CH. II.] OF ITS QUALITY. 711 ministratrix, entitled to the trust only of a term, gained a settle- ment by residence thereon for forty days, (a) And the executor to a tenant of an estate under lOZ. a year gains a settlement by forty days' residence, although he does not prove the will ; because the property vests in him from the death of the testator ; (6) but a next of kin of a lessee for years, in a case where several are in equal degree of kindred, can gain no settlement by residing on the land, if he does not take out letters of administration ; because no right is vested in him till that is done, (c) Yet in the case of a sole next of kin, exclusively entitled to the administration of the personal estate, who had resided more than forty days in the parish in which a leasehold tenement belonging to the intestate lay, it was held that she thereby gained a settlement, although she had not then obtained a grant of the administration ; upon the ground that the exclusive right to enforce the proper means of acquiring the legal title to the property, coupled with the actual enjoyment of it, gave so much color of right to reside, as to exempt such resi- dence from being considered a vagrant intrusion into a parish in which * the party has nothing of his own, within the purview and scope of the poor laws, (d) By stat. 3 & 4 W. 4, c. 74 (^An Act for the Abolition of Fines and Recoveries, and for the Siibstitution of more Simple , „ , — Modes of Assurance^, s. 27, it is provided and enacted, 4, c. 74. " that no bare trustee, heir, executor, administrator, or not to be assign, in respect of any estate taken by him as such P™'^°""'- bare trustee, heir, executor, administrator, or assign, shall be the protector of a settlement." It may be proper to conclude these doctrines as to the differ- ence between the interest which an executor or adminis- How the cffscts trator has in the goods of the deceased, and such as a which an ment. Rex v. Great Glenn, 5 B. & Ad. Eex v. Berkswell, 1 B. & C. 542 ; Rex v. 188. Barnard Castle, 2 Ad. & El. 108. (a) Mursley v. Grandborongh, 1 Stra. (d) Rex v. Horsley, 8 East, 405. A 97. grant of administration will not operate (6) Rex V. Stone, 6 T. R. 295. by relation so as to vest a term in the ad- (c) Rex V. Wid worthy, Burr. Sess. Ca. ministrator from the death of the intestate, 109 ; Rex v. North Curry, Cald. 137; S. and thus make a person irremovable for C. 2 Bott. pi. 631 ; South Sydenham v. a time past, who, during that time, was Lamerton, 2 Bott. 462, note (o) ; Rex v. removable. lb. 409 ; and see, also, Rex v. Canford Magna, 6 M. & Sel. 355 ; Rex v. Widworthy, Burr. Sess. Ca. 109 ; S. C. 2 Okeford Fitzpayne, 1 B. & Aid. 254: Bott. 461. [646] 712 OF THE ESTATE OP AN EXEOUTOE, ETC. [PT. II. BK. I. executor man has in his own proper goods, by considering more such may fully a subject to which there has already been occasion ^^me IS ^^ advert, (e) viz, how the property which the executor or administrator has at first in his representative character, may become his own to his own use, as his other goods which he has not as executor or administrator. (/) As first, in regard to the ready money left by the testator ; on its coming into the hands of the executor, the property in the specific coin must of necessity be altered ; for when it is inter- mixed with the executor's own money, it is incapable of being distinguished from it, although he shall be accountable for its value ; and therefore a creditor of the testator cannot, by fieri facias on a judgment recovered against the executor, take such money as de bonis testatoris in execution. (^) So if the testator died indebted to the executor, or the executor not having ready money of the testator, or for any * other good reason, shall pay a debt of the testator's with his own money, he may elect to take any specific chattel as a compensation ; and if it be not more than adequate, the chattel by such election shall become his own. (A) Consequently, if by such election he acquire the absolute ownership of the chattel, and die, his executor may defend himself in an action of detinue brought for the same by the surviving executor of the first testator. (T) Hence, if an exec- utor pays with his own money the debts of the testator in such order as the law appoints, to the value of the whole of the personal assets, he acquires an absolute right to them ; and he may dis- pose of them as he pleases, without being guilty of any devasta- vit. (^) (e) Ante, 608. See, also, 605, 606. decide the claim, and, if the case is ap- (/) Wentw. Off. Ex. c. 7, p. 197, 14th pealed to the supreme court of probate, ed. either party may have the claim deter- {g) Wentw. Off. Ex. c. 7, p. 196, 14th mined by a jury ; if neither party calls for ed; Toller, 238. a jury, then it may be determined by the (A) Wentw. Off. Ex. c. 7, pp. 196, 199, court appealed to. Genl. Sts. c. 97, §§ 14th ed. ; Anon. Dyer, 187 6; Woodward 26, 27 ; Willey v. Thompson, 9 Met. 329 ; a. Lord Darcy, Plowd. 185 ; Elliott v. Ela v. Edwards, 97 Mass. 318.] Kemp, 7 M. & W. 313, per Parke B. [In {i) Toller, 239. Massachusetts, if a debt claimed of the (i) Merchant w. Driver, 1 Saund. 307; estate by the executor or administrator Chalmer v. Bradley, 1 Jac. & W. 64; is disputed, he must file a statement of it Vanquelin v. Boward, 15 C. B. N. S. 341, in the probate court, and the same may 372 ; [post, 1966, note (().] However, in be submitted to arbitrators, if the parties Hearn v. Wells, 1 Coll. 333, Knight Bruce agree; if not, the judge of probate must V. C. said he could not accede to the prop- [647] CH. II.] OF ITS QUALITY. 713 So if the debt due to him from the testator amount to the full value of all his effects in the executor's hands, there is a complete transmutation of the property in favor of the executor, by the mere act and operation of law. (A^) In the former case, his elec- tion, and in the latter the mere operation of law, shall be equiva- lent to a judgment and execution ; for he is incapable of suing himself, (l) So in the case of a lease of the testator, devolved on the execu- tor, such profits only as exceed the yearly value shall be held to be assets ; it therefore follows, that if the executor pay the rent out of his own purse, the profits to the same amount shall be his. (to) * There are likewise other means of thus changing the property ; as if the testator's goods be sold under a fieri facias, the executor, osition that an executor has a right in equity to acquire as a purchaser an abso- lute title to specific chattels by intending so to deal with them, and by paying the testator's debts to an amount exceeding the value of those chattels. Whatever might he the rule of law upon a plea of plene administravit, he apprehended that not to be the rule in equity. His honor did not agree that, in equity, the executor had, under such circumstances, an abso- lute right to the propertj'. [In Living- ston V. Newkirli, 3 John. Ch. 312, 318, it was held to be the well established rule, that if an executor or administrator pays, out of his own moneys, debts to the value of the personal assets in hand, he may apply the assets to his own use towards satisfaction of his moneys so expended. Aud by such election, the assets became absolutely his own property. " This rule," it was said by Chancellor Kent, "has al- ways been applied to the personal assets ; and it is said (Dyer, 2. a) that if the ex- ecutor be directed to sell the land, he can- not retain it in hand, as he may the per- sonal assets, because the direction of the will is that it be sold. This case seems to put the distinction altogether upon the testator's intention; and if the personal assets prove deficient, and the executor pays out of his own moneys, to the value of the land, there does not appear to be any solid ground for the distinction. If this court were to direct the land to be sold in such a case, it would certainly al- low the executor to retain for his indem- nity. The object of the will, and the ends of justice, are equally attained, if the value of the real as well as of the personal as- sets, be faithfully applied in discharge of the debts." See Hill v. Buford, 9 Missou. 869 ; Haslett «. Glenn, 7 Harr. & J. 17 ; McClure v. McClure, 19 Ind. IS.'i. "Where an administrator pays debts of the intes- tate out of his own funds, and is removed before he has received assets sufficient to repay him, he should be allowed to stand in the place of the creditor whose demand he has extinguished, and assert the de- mand against the subsequent administra- tor. Smith u. Haskins, 7 J. J. Marsh. 502. See Munroe o. Holmes, 9 Allen, 244 ; S. C. 13 Allen, 109.] (Tc^) [As to the terms on which he will take the assets, see post, 1966, note («).] (I) Plowd. 185 ; Toller, 239. [An ex- ecutor who is also residuary legatee and has given bond for the payment of all the debts and legacies, acquires an absolute title to the estate devised and may give an indefeasible title to a bona fide purchaser. Clarke v. Tufts, 5 Pick. 335.] (m) Went. Off. Ex. e. 7, p. 200, 14th ed. ; Toller, 239. [648] 714 OF THE ESTATE OF AN EXECUTOR, ETC. [PT. II. BK. I. as well as any other person, may buy such goods of the sheriff ; and in case he does so, the property which was vested in him as executor shall be turned into a property in jure propria, (n) Again, if the executor among the testator's goods find and take some which were not his, and the owner recover damages for them in an action of trespass or trover, in this, as in all similar cases, the goods shall become the trespasser's property, because he has paid for them, (o) If an executor or administrator makes an underlease of a term of years of the deceased, rendering rent to himself, his executors, &c. though he has the term wholly in right of the intestate, yet, when he makes this lease, he has power to dispose of the whole ; and by making a lease of part he appropriates that to himself, and divides it from the rest, and has the rent in his own right ; and if he brings an action for it, he must bring it in the debet and detinet ; and if he dies, the rent will be payable to his personal representative, and not to the administrator de bonis nan of the original deceased, (jo) As an executor, who is also a legatee, may, by assenting to his own legacy, vest the thing bequeathed in himself in the capacity of legatee, {q) so an administrator, who is also entitled to share in the residue as one of the next of kin under the statute of distri- bution, may acquire a legal title, in his own right, to goods of the deceased, either by taking them by an agreement with the parties entitled to share with himself under the statute, or even without such * agreement, by appropriating them to himself as his own share, (r) If one of several executors or administrators alone sell any of (n) Went. Off. Ex. c. 7, p. 200, I4th tenant enjoyed the demised premises with- ed. ; Toller, 239. out interruption during that period ; and (o) lb. it was held that neither the administrator (p) Drue V. B.iylie, 1 Freem. 403 ; S. C. subsequently appointed, nor the heir of lb. 392 ; S. C. 2 Lev. 100; 1 Ventr. 275 ; the intestate, could maintain an action for 3 Keb. 298, 427, 463, 495, 549 ; Sury v. use and occupation against the tenant. Cole, Latch, 266, 267; Skeifington v. Boyd v. Sloan, 2 Bailey, 311; Logan v. Whitehurst, 3 Y. & Coll. Exch. 1. But Caldwell, 2 Missou. 373 ; Eoltz «. Prouse, see CowoU v. Watts, 6 East, 405 ; Cather- 17 111. 487 ; Stinson v. Stinson, 38 Maine, wood V. Chabaud, 1 B. & C. 150; infra, 593.] pt. II. bk. III. ch. II. bk. IV. ch. ii. [An (q) See post, pt. m. bk. iii. ch. iv. § executor acting under a will, which was iii. [p. 1380.] afterwards set aside, leased the lands of (r) Elliott v. Kemp, 7 M. & W. 313, per his supposed testator for a year, andj the Parke B. [649] CH. II.] OF ITS QUALITY. 715 the goods of the testator, he alone may maintain an action for the price, not naming himself executor, (s) In a case where bills of exchange had been accepted by A., for the accommodation of B., one of the executors of C, it appeared that B., having considerable sums of money in his hands belonging to C.'s estate, which were deposited in a box in his possession, dis- counted the bills with such money, by taking out of the box the requisite amount, deducting the discount, and at the same time placing the bills in the box. And it was held by Alexander C. B. that B. could not sever his character of an accommodation holder of these bills from his character of executor, so as to enable him and his co-executor to sue as indorsees of the bills for a valuable consideration, (i) A sale by an administrator of a " pretenced right or Sale by an , . ' . . adminis- title to premises of a term in which the intestate died trator of a possessed, but of which the administrator never had pos- title held to session, was held to be within the prohibition of the stat- 3I hI'8,"c. ute 32 Henry 8, c. 9. (m) ^• (s) Godolph.pt. 2, c. 16,s. 1; Wentw. (u) Doe u. Evans, 1 C. B. 717. But Off. Ex. 224, 14th ed.; Brassington v. see now stat. 8 &9 Vict. c. 106, s. 6 ; [and Ault, 2 Bing. 177 ; S. C. 9 Moore, 340. Parsons C. J. in Drinkwater v. Drink- (() V. Adams, 1 Younge, 117. water, 4 Mass. 359.] *BOOK THE SECOND. ON THE QUANTITY OF THE ESTATE IN POSSESSION OF AN EXECUTOR OR ADMINISTRATOR. The estate of an ad- ministra- tor is tlie same as that of an executor. The The whole personal estate of Aptbe the administration is granted, the interest of the administrator in the property of the deceased is equal to and with the interest of an executor, (a) Executors and administrators differ in little else than in the man- ner of their constitution. (6) general rule is, that all goods and chattels, real and per- sonal, go to the executor or administrator, (e) By the laws of this realm, says Swinburne, (c?) as the heir hath (a) Touehst. 474 ; Blackborough v. Da- vies, 1 p. Wms. 43, by Holt C. J. (b) Treat. Eq. bk. 4, pt. 2, c. 1, s. 1. [By Massachusetts statute 1783, c. 24, s. 10, it was provided that all estate real and personal, undevised in any will, shall be distributed as if it were intestate, and the executor shall administer upon it as such. Under this statute, in Hays v. Jackson, 6 Mass. 152, Parsons C. J. said: "A ques- tion has been made, whether the executor must take out administration on such un- devised estate, or whether he shall admin- ister it ex officio as executor. The usage has been to administer it without a letter of administration; and we are satisfied that this usage is correct. The executor, by the probate of the will, has the admin- istration of the testate estate, according to the will, and on undevised estate he is also directed to administer agreeably to the pro- visions respecting intestate estate." Par- ris V. Cobb, 5 Rich. (S. Car.) Eq. 450; [650] Newcomb v. Williams, 9 Met. 533 ; Ven- able u. Mitchell, 29 Geo. 566 ; Dean v. Biggers, 27 Geo. 73 ; Wilson v. Wilson, 3 Btnn. 557. It has, however, been held that an administrator with the will an- nexed has no authority to administer upon any part of the testator's estate, not dis- posed of by the will. Harper v. Smith, 9 Geo. 461 ; Venable v. Mitchell, 29 Geo. 566 ; Dean v. Biggers, 27 Geo. 73. See Montague v. Carneal, 1 A. K. Marsh. 351 ; Owens w. Cowan, 7 B. Mdn. 152; Mont- gomery V. Millikin, 5 Sm. & M. 151 ; Moody V. Vandyke, 4 Binn. 31 ; Drayton u. Grimke, 1 Bailey Eq. 392 ; Perry B.Gill, 2 Humph. 218.] (c) Com. Dig. Biens, C. ; Co. Lit. 388 a. The hoeres of the civil law, answering to our executor or administrator, succeeded in universum jus defuncti. Godolph. pt. 2, c. 1, s. 1. (d) Swinb. pt. 6, s. 3, pi. 5. PT. 11. BK. II.] OF THE QUANTITY OF AN EXECUTOR'S ESTATE. 717 not to deal witli the goods and chattels of the deceased, ""' ^^- 111 1-111 ceased no more hath the executor to do with the lands, tene- vests in the ments, and hereditaments, (c^^) In other words, it may (d^) [An administrator at common law takes no interest in the real estate of the deceased ; nor does an executor, unless by force of the provisions of the will. Phelps v. Funkhoiiser, 39 111. 401 ; Smith v. M'Con- nell, 17 111. 135; Hathaway u. Valen- tine, 14 Mass. 501 ; Drinkwater v. Drink- water, 4 Mass. 354 ; Dean u. Dean, 3 Mass. 258; Willard v. Nason, 5 Mass. 240 ; Boylston v. Carver, 4 Mass. 589 ; Almy V. Crapo, 100 Mass. 21 8, 220, 221 ; Gibson v. Farley, 16 Mass. 280 ; Newcomb V. Stebbins, 9 Met. 540; Wilde J. in Brown v. Kelsey, 2 Gush. 243, 251 ; Hoar J. in Palmer v. Palmer, 13 Gray, 328 ; Lobdell V. Hayes, 12 Gray, 236 ; Griffith V. Beecher, 10 Barb. 432 ; McLean J. in Brash u. Ware, 15 Peters, 111, 112 ; Vance V. Fisher, 10 Humph. 211 ; Comparet v. Randall, 4 Ind. 55 ; Willcox v. Smith, 26 Barb. 316 ; Bridgewater u. Brookiield, 3 Cowen, 299 ; Hillman v. Stevens, 16 N. Y. 278 ; Breevort v. Mcjimsey, 1 Edw. Ch. 551 . The rule Is the same, although the es- tate is insolvent. Post, 817, note (ci), 820, note (o) ; Ticknor v. Harris, 14 N. H. 272. It is otherwise, however, in New Hamp- shire, as to this last point. See Bergin v. McFarland, 26 N. H. 237 ; and as to Ver- mont, seeMcFarlandK. Stone, 17 Vt. 165 ; Aldis V. Burdick, 8 Vt. 21. But, at com- mon law, generally the lands of an intestate descend to the heir, subject to the payment of debts if there be a deficiency of personal estate. The administrator has no right to enter into the lands, or to take the profits. He has no interest in them, but a naked authority to sell them on license to pay the debts where the personal estate is in- sufficient. And lands not being liable at common law for the payment of debts, they are made liable by statute. If the lands are liable to tlie payment of the in- testate's debts, the administrator may law- fully sell them on license, whether they are in the possession of the heir, or of his alienee or disseisor. For no seisin of the heir, or of his alienee, or of his disseisor, can defeat the naked authority of the ad- ministrator to sell on license. Thus, also, when an authority is given by the testator to his executor to sell his lands for the payment of his debts, the executor may sell notwithstanding the death or aliena- tion of the devisee ; and for the same rea- son, notwithstanding his disseisin. And the purchaser, by virtue of his deed, may try his title to the lands sold, on a writ of entry, if it be disputed. So the adminis- trator has no cause to recover the posses- sion by a suit at law, and cannot maintain a suit for that purpose. Parsons C. J. in Drinkwater v. Drinkwater, 4 Mass. 354, 358, 359. See Dean v. Dean, 3 Mass. 258, 260, 251 ; Lobdell v. Hayes, 12 Gray, 236, 238 ; Crocker v. Smith, 32 Maine, 244 ; Sargent J. in Lane v. Thompson, 43 N. H. 320, 325, 326, and cases cited ; Glad- son V. Whitney, 9 Iowa, 267 ; Lockwood u. Lockwood, 2 Root, 409 ; Thayer v. Lane, 1 Walker (Mich.), 200; Bank of Charles- ton V. Inglesby, Spears Eq. 399 ; Pinson T;. Williams, 23 Missou. 64; Stillman v. Young, 16 111. 318. But an executor or administrator may maintain an action for lands which have been set off to him upon an execution recovered by such executor or administrator on a debt due to the de- ceased. Boylston v. Carver, 4 Mass. 598. See Foster «. Huntington, 5 N. H. 108. So as to lands mortgaged to the deceased, and taken possession of and the mortgage foreclosed by his executor or administra- tor after the decease of the mortgagee ; unquestionably the executor or adminis- trator is to hold the estate, until his func- tions touching it are performed. Parker J. in Boylston v. Carver, 4 Mass. 598, 610 ; Richardson u. Hildreth, 8 Gush. 225 ; Palmer v. Stevens, 11 Gush. 148. "And we cannot see," says the learned judge, " how the widow or heir in this case, or in the case of land delivered to the executor or administrator, to satisfy a debt due to 718 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. be stated, that, both at law and equity, the whole personal estate of the deceased vests in the executor or administrator, (c?^) the estate, can have any right of entry or can maintain any action for the possession, until distribution has been made by the judge of probate according to the statute." 4 Mass. 610, 611. See Dean «. Dean, 3 Mass. 262 ; Taft i/. Stevens, 3 Gray, 504, 507. And this distribution is to be made to the same persons, and in the same propor- tions, as if the land had been a part of the personal estate of the deceased. Genl. Sts. Mass. c. 96, § 14 ; Richardson v. Hildreth, 8 Gush. 225 ; Taft v. Stevens, 3 Gray, 504, 507. But until this distribution the per- sonal representative holds the estate in trust for the persons entitled. Terry v. Ferguson, 8 Porter, 500 ; Harper v. Archer, 28 Miss, 212. By statute in Massachusetts, real estate held by an executor or admin- istrator in mortgage, or taken on execu- tion by him, may be sold, subject to the right of redemption, at any time before the right of redemption is foreclosed, in the same manner as personal estate of a person deceased, and the proceeds of the sale will be held as other personal assets of the deceased. Genl. Sts. t. 96, §§ 9, 10, 11, 12. See Baldwin v. Timmins, 3 Gray, 302. Where the right of redeeming real estate held by an executor or administra- tor in mortgage, or taken on execution by (d^) See Swilley v. Lyon, 18 Ala. 552 ; Haysw. Jackson, 6 Mass. 149, 152 ; Weeks V. Jewett, 45 N. H. 540, 542 ; Ladd v. Wig- gin, 35 N. H. 421, 430 ; Keating b. Smith, 5 Gush. 232, 237 ; Beattie v. Abercrombie, 18 Ala. 9 ; Sneed u. Hooper, Cooke, 200 ; Dawes v. Boylston, 9 Mass. 337, 352, 353 ; Lane v. Thompson, 43 N. H. 320 ; Shir- ley V. Healds, 34 N. H. 407 ; Clapp v. Stoughton, 10 Pick. 463 ; Allen v. White, 17 Vt. 69 ; Allen v. Simons, 1 Curtis, 124, 125 ; post, 1474, notes. All contingent as well as absolute interests in personal prop- erty pass to the executor or administrator ; and in like manner all choses in action pass, although they may remain depend- ing on a contingency during the life of the testator or intestate. Wilde J. in Clapp V. Stoughton, 10 Pick. 468 ; Ladd d. Wig- gin, 35 N. H. 421, 430; Beecher v. Buck- ingham, 18 Conn. 1 10. As no title to the personal estate vests either in the widow or next of kin,, as such, they can maintain no action or suit to recover it, until after administration and decree of distribution. Weeks v. Jewett, 45 N. H. 540 ; Tappan V. Tappan, 30 N. H. 50 ; Woodin v. Bag- ley, 13 Wend. 453; Beecher v. Grouse, 19 Wend. 306 ; Lawrence v. Wright, 23 Pick. 128; Clapp v. Stoughton, 10 Pick. 463. Distributees can obtain their distributive shares only through administration. Mar- shall V. King, 24 Miss. 85 ; Curtis J. in Allen V. Simons, 1 Curtis, 124. This is necessary to the transmission of the title. Whit V. Bay, 4 Ired. (Law) 14; Davidson 0. Potts, 7 Ired. Eq. 272 ; Carter v. Green- wood, 5 Jones (N. Car.) Eq. 410; Sharp V. Farmer, 4 Dev. & Bat. (Law) 122 ; Al- exander V. Banfield, 6 Texas, 400 ; Miller V. Eatman, 11 Ala. 609. A person ex- clusively entitled to an intestate estate cannot sue therefor, without first taking out administration on the estate ; Bradford V. Felder, 2 McCord Ch. 168; Cochran v. Thompson, 18 Texas, 652 ; but see ante, 630, note (e) ; Downer v. Downer, 9 Penn. St. 302 ; nor can he hold such estate al- though in fact received by him, as against the administrator. Eisenbise v. Eisenbise, 4 Watts, 134. The executor or admin- istrator alone can represent the personalty. Jenkins v. Freyer, 4 Paige, 51 ; Bradford V. Felder, 2 McCord Ch. 168 ; Kellar v. Beeler, 5 Monr. 574 ; Wilkinson v. Perrin, 7 Monr. 217. The title vests in the admin- istrator only for the purpose of enabling him to administer the estate according to law, by paying the debts of the deceased, and making distribution or final settle- ment. Hall V. Hall, 27 Miss. 458 ; Dawes V. Boylston, 9 Mass. 352 ; Lewis ». Lyons, 13 111. 117.] PT. II. BK. n.] PARTNERSHIP PROPERTY. 719 The personal property in which the deceased had but a joint es- tate or possession will survive to his companions, and his Personal executor or administrator will not be entitled to a moiety whicli the him, is foreclosed, such real estate can be sold for the payment of debts, legacies, and charges of administration, in the same manner as real estate of which the deceased died seised, upon obtaining license there- for as prescribed bylaw. Genl. Sts. Mass. c. 96, § 13. See Thomas w. Le Baron, 10 Met. 403. It is provided by statute in Massachusetts, that " where the personal property in the hands of an executor or administrator is not sufficient to pay the debts of the deceased, with the charges of administration, his real estate, or as much thereof as may be necessary, shall be sold for that purpose, by the executor or ad- ministrator, upon obtaining the prescribed license therefor ; and the proceeds of the real estate so sold is to be treated as assets in the hands of the executor or adminis- trator in like manner as if the same had originally been part of the goods and chat- tels of the deceased ; and the executor or administrator, and the sureties in his ad- ministration bond, shall be accountable and chargeable therefor." Genl. Sts. c. 96, §§7, 8; c. 102, § I ; post, 1656, note {l^). The mode of obtaining the license and the entire course of procedure in regard to mak- ing the sale are fully specified in Genl. Sts. o. 102. In certain events the executor or administrator may be licensed to sell more than is necessary for the payment of debts, and when he is so licensed, he is required to give bond with surety or sureties to the judge of the probate court for the county in which he was appointed, conditioned according to law, to account for and dis- pose of all proceeds of the sale remaining after payment of the debts and charges. C. 102, § 6. The sale is to be made by public auction. §17. The real estate of the de- ceased, liable to be sold, includes all lands of the deceased, and all rights of entry and of action, and all other rights and in- terests in lands, which by law would de- scend to his heirs, or which would have been liable to attachment or execution by a creditor of the deceased in his lifetime. § 11. An executor or administrator, li- censed to sell lands fraudulently conveyed by the deceased, or fraudulently held by another person for him, or to which he had a right of entry or of action, or a right to a conveyance, may first obtain possession thereof by entry or by action, and may sell the same at any time within one year after so obtaining possession. §§ 12, 13. A mere formal entry by him is sufficient to authorize him to sell and convey the whole title. Freeland v. Free- land, 102 Mass. 479. If an administrator sells land, under § 12, supra, to pay debts of the deceased, after recovering the land by a writ of entry from one to whom the deceased conveyed it in fraud of his cred- itors, but for a valuable consideration, a surplus of the. proceeds remaining after paying the debts, belongs to the fraudulent grantee as against the heirs of the intes- tate. Allen 0. Ashley School Fund, 102 Mass. 262, 266, 267 ; 2 Sugden V. & P. (8th Am. ed.) 714, note (P). See Tenney V. Poor, 14 Gray, 500. As to the law of In- diana with regard to sales of land to pay debts of deceased, see Eapp v. Matthias, 35 Ind. 332. An executor or administra- tor cannot directly or indirectly purchase at his own sale, whether made under a power in a will, or by an order or license of court, or under an execution. 2 Sug- den V. & P. (8th Am. ed.) 688, note (nO ) and cases cited; Skillman v. Skillman, 15 N. J. Eq. 388 ; Froneberger u. Lewis, 70 N. Car. 456 ; Glass v. Greathouse, 20 Ohio, 503 ; McGowan u. McGowan, 48 Miss. 553; Boyd u. Blankman, 29 Cal. 19; Coat V. Coat, 63 III. 73 ; Rafferty v. Mal- lory, 3 Biss. 362 ; Brackenridgey. Holland, 2 Blackf. 377 ; Shine v. Redwine, 30 Geo. 780 ; Lathrop v. Wightman, 41 Penn. St. 297; Stronach «. Stronach, 20 Wis. 129; Miles V. Wheeler, 43 111. 123 ; Ely v. Ho- rine, 5 Dana, 398 ; Prindle v. Beveridge, 7 Lan.sing, 225 ; Anderson v. Green, 46 720 OF THE QUANTITY OF AN EXECUTOE'S ESTATE. [PT. H. BK. II. deceased of it : (e^ for a survivorship holds place regularly as well was joint , "^ ^. . . . ■, ;,,,,• tenant between joint tenants ot goods and chattels in possession go to the or in right, as between joint tenants of inheritance or free- executor. i^q1^_ (^ J-) But the wares, merchandise, debts, or duties, which joint merchants have, as joint merchants or partners, shall not survive, but shall go to the executors of the * deceased ; and this is per legem mercatoriam which is part of the laws of this realm, for the advancement and continuance of commerce and trade, except in whicli is pro bono publico ; for the rule is, that jus aceres- the case of cendi inter mercatores vro beneficio commercii locum non partners m , trade, &c. Jiabet. (j^ And this part of the lex mercatoria has been Geo. 361 ; Frazer v. Lee, 42 Ala. 75 ; Newton v. Eoe, 33 Geo. 163. Such pur- chase is not absolutely void, but voidable at the election of the heirs of the deceased, to be made within a reasonable time. Ives V. Ashley, 97 Mass. 198; Davoue v. Fan- ning, 2 John. Ch. 252 ; 2 Sugden V. & P. (8th Am. ed.) 687, note (a) ; Blood v. Hayman, 13 Met. 231 ; Bobbins v. Bates, 4 Gush. 104 ; Dunlap v. Mitchell, 10 Ohio, 117; Musselmeu t. Eshleman, 1 Penn. St. 401; Moore c/. Hilton, 12 Leigh, 1; Mercer v. Newson, 23 Geo. 151 ; Harring- ton V. Brown, 5 Pick. 519 ; Shine v. Red- wine, 30 Geo. 780 ; Boyd v. Blankman, 29 Gal. 19; Miles v. Wheeler, 43 111. 123; post, 938; Anderson v. Green, 46 Geo. 361 ; Smith v. Granberry, 39 Geo. 381 ; Grubbs v. McGlawn, 39 Geo. 672. Being voidable only, an estate passes, by the con- veyance, to the grantee, and if it is after- wards sold and conveyed for a valuable and full consideration, to a bona fide pur- chaser, who has no notice that it was bought, at the administrator's sale, for the administi"ator's benefit, such pur- chaser will hold it against the heirs of the intestate. Blood c. Hayman, 13 Met. 231 ; Robbins v. Bates, 4 Gush. 104. Por cases where the heir permitted the execu- tor or administrator to buy and to make valuable improvements, see Potter v. Smith, 36 Ind. 231 ; Smith v. Drake, 23 N. J. Eq. 302. Another method allowed to be puTsued, in some states, for subject- ing the lands of the deceased to the pay- [651] ment of his debts, is that of levying on them an execution obtained against the executor or administrator for a claim against the estate. See Graff u. Smith, 1 Dall. 481; Morris v. Smith, 1 Yeates, 238; Rowland v. Harbaugh, 5 Watts, 367 ; M'Pherson v. Cunliff, 11 Serg. & R. 432 ; Wilson V. Watson, 1 Peters C. C. 269 ; Steel V. Steel, 4 Allen, 417 ; Prescott v. Tarbell, 1 Mass. 204 ; Gore v. Brazier, 3 Mass. 523 ; Wyman v. Brigden, 4 Mass. 150; Drinkwater w. Drinkwater, 4 Mass. 354; BIgelow i/. Jones, 4 Mass. 512; Mitchell V. Lunt, 4 Mass. 654 ; Ramsdell v. Creasy, 10 Mass. 170; Bells v. Robinson, 1 Stewart, 193; Wyman ti. Fox, 55 Maine, 523 ; No well v. Bragdon, 14 Maine, 320. Provision is made for such levy and its effect by statute in Massachusetts. Genl. Sts. c. 103, §§ 53, 54, 55. But in Illinois a creditor cannot enforce collection of a debt against the deceased by levying an execution on lands left by him. Stillman u. Young, 16 111. 318.] (c) Swinb. pt. 3, s. 6, pi. 1 ; [post, 843, 1740, note (r), 1865, note (d).] See post, pt. iii.bk. HI. ch. V. § I. as to what con- stitutes a joint tenancy in personial prop- erty. (/) Co. Lit. 182 a; Harris i'. Fergus- son, 16 Sim. 308 ; Crossfield v. Such, 8 Ex. 825. (g) lb. ; Rex v. Collectors of Customs, 2 M. & Sel. 225. But with respect to chcses in action, though the right of the deceased joint tenant devolves on his per- PT. II. BK. II.] PAETNERSHIP PROPERTY. 721 extended to all traders (including manufacturers), Qi) and, as it should seem, to all persons engaged in joint undertakings in the nature of trade. (J) Thus, if two take a lease of a farm jointly, the lease shall survive, but the stock on the farm, though occupied jointly, shall not survive. (/) So vp^here two persons ad- vance a sum of money by way of mortgage, and take the mortgage to them jointly, and one of them dies ; when the money is paid the survivor shall not have the whole, but the representative of him who is dead shall have his proportion. (Jc) So if two or more make a joint purchase of land, and afterwards one of them lays out a considerable sum in repairs and improvements and dies, this shall be a lien on the land, and a trust for the representative * of him who advanced it. (T) But where two become joint tenants, or jointly interested, in personal property, by way of gift, there the same shall be subject to all the consequences of the law of survi- vorship, (m) In the case of Morris v. Barrett, (ji) the residue of real and sonal representative, the remedy survives to his companion, who alone must enforce the right by action. See post, pt. ii. bk. III. ch. I. § II. ; pt. v. bk. i. ch. i. And it has been doubted whether the rule can in any case be enforced bat in a court of equity. See Smith's Mercantile Law, 149, 3d ed.; Abbott on Shipping, 97, 7th ed. But it has been lately decided by the court of exchequer, after full consideration, that the title to partnership chattels does not survive at law. Buckley v. Barber, 6 Ex. 164. In the same case it was argued that the surviving partners have, at law, at all events, a jus disponendi as to the partner- ship chattels, for the purpose of winding up the partnership debts. The court, how- ever, doubted whether they h.ive a power to sell and give a good legal title to the share belonging to the executor of the de- ceased partner when they sell in order to pay the debts of the partnership ; and the barons held that certainly the survivors have no power to dispose of his share otherwise than to pay such debts. (A) Buckley v. Barber, 6 Ex. 164. (t) Hammond v, Jethi'o, 2 Brownl. & Gold. 99. VOL. I. 46 [j) Jeffereys v. Small, 1 Vern. 217. {k] Petty^ V. Styward, 1 Chanc. Rep. 31 ; Fonbl. Treat, bk. 2, c. 4, s. 2, note {g) ; Vickers v. Cowell, 1 Beav. 529. {I) Lake v. Gibson, 1 Eq. Gas. Abr. 291, pi. 3. See, further, on this subject. Lake ■V. Craddock, 3 P. Wms. 158; Lyster v. Dolland, 1 Ves. jr. 434 ; Jackson v. Jack- son, 9 Ves. 597, note ; Crawshay v. Maule, 1 Swanst. 498 ; Dale v. Hamilton, 5 Hare, 369, 384 ; Robinson u. Preston, 4 Kay & J. 505 ; Harrison u. Barton, 1 Johns. & H. 287, where, on the purchase by two persons contributing equally to the costs of it. Wood V. C. held that parol evidence of surrounding circumstances and of sub- sequent dealings was admissible, notwith- standing the statute of frauds, to prove an intention to hold in severalty ; and his honor relied on the observation of Sir W. Grant, in Aveling v. Knipe, 19 Ves. 441, that equity will not hold a purchase joint, if there are any circumstances from which it can be collected that a joint tenancy was not contemplated. (m) 1 Vern. 217; post, pt. ill. bk. iii. ch. V. § I. (n) 3 Y. & Jerv. 384, [652] 722 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. H. personal estates was devised by a testator to his two sons as joint tenants ; and the two sons, after the father's decease, and during the period of twenty years, carried on the business of farmers with such estates, and kept the moneys arising therefrom in one com- mon stock, and with part of such moneys purchased other estates in the name of one of them, but never in any manner entered into any agreement respecting such farming business, nor ever accounted with each other ; it was held, under the circumstances, that they continued, till the death of one of them, joint tenants of all the property that passed by the will of their father, but were tenants in common of the after purchased estates, (o) The general rule of law is, that on the death of one of several Rights of partners, in the absence of express stipulation, his rep- executor of resentative is entitled to have the whole concern wound one of . several up and disposed of, (o^) and if the surviving partners continue the trade, the representative of the deceased partner may elect to take his share of the profits, or may charge the survivors * with interest on the amount of capital retained and used by them. If the property of the partnership consists in part of leaseholds, the executor of the deceased partner may treat the survivors as trustees, and if they renew the lease, they are con- sidered to do so for the benefit of the partnership, (p) In some instances the title which the deceased had in respect In what °f a special property only in goods is transmissible to his cases the personal representative. Thus, if an uncertificated bank- (o) See Steward v. Blakeway, L. R. 6 cases cited; Washburn v. Goodman, 17 Eq. Ca. 479. pick. 519; CoUyer Partn. (5th Am. ed.) (oi) [All that can be required of the § 199, note (1) and cases cited; Patton v. surviving partner is that he proceed at Calhoun, 4 Grattan, 138; Dougherty v. once to wind up the partnership, and ac- Van Nostrand, 1 Hoff. Ch. 88 ; Hite ». count with the legal representative of the Hite, 1 B. Mon. 179; Cooper v. Keid, 2 deceased partner. In the absence of any Hill Ch. 549 ; Willett v. Blanford, 1 Hare, agreement, the surviving partner Is en- 253.] titled to no pay for his personal services (p) Clements v. Hall, 2 De G. & J. 173, in the strict discharge of his duty. But 186 ; Townend o. Townend, 1 Giff. 201 ; if, with the assent of the administrator of Wedderburn v. Wedderburn, 22 Beav. 84, the deceased partner, he employs extra 86 ; [Clegg v. Pishwick, 1 McN. & G. (Am. labor to finish existing contracts, if he ed.) 299, and note (1) and cases cited; enters into new contracts, employing the Leach v. Leach, 18 Pick. 68.] As to the machinery, patents, and property of the proper mode of taking the partnership ao- firm therein, then to the extent of his per- counts of bankers, as between a surviving sonal services devoted to such extra work partner and the estate of a deceased part- he is entitled to compensation. Colt J. in ner, see Bate v. Robins, 32 Beav. 73. Schenkl v. Dana, 118 Mass. 236, 239, and [653] PT. II. BK. II.J REAL ESTATE. 723 rupt had acquired goods after his bankruptcy and died title goes to possessed of them, having been allowed to retain pos- tor, where session by the assignees, his executor or administrator ceased' had might recover them from a stranger ; (g) for there was ™giai a good title in the bankrupt as against all the world but property. the assignees, and this title passed to his personal representative, (r) But it shottld seem that the bare circumstance of the deceased having died in possession of goods will not give his executor or administrator a title to them even against a mere wrong-doer, if it can be shown that, in truth, the title is elsewhere. Qs) Upon the death of the assignee of an insolvent appointed under the insolvent act, all the interest in the personal prop- erty of the insolvent which was vested in the deceased death of aa assignee vested, by operation of law, in his executors, an insoi-° until a new assignee was appointed ; and when a new lsute\t assignee, was appointed, all the interest of the executors yent"vest vested, under the act (1 & 2 Vict. c. 110), (t) in that jn the first new assignee ; and if, in * the intermediate time, any in the ex- money or other property belonging to the insolvent came the as-° to the hands of his executors, the act enabled the insol- ^'^nee. vent debtor's court (m) to order the executor to deliver it up to the new assignee, (w) But where no new assignee had been ap- pointed, it has been held that a party, having a demand against the insolvent, but not having proved under the insolvency, might in equity sue the executors of the deceased assignee, (w) Besides the interest which an executor or administrator in all cases takes in the whole personal estate of the testator An execu- or intestate, he may in some instances be seised of real seLedTf '^^ property of the deceased as trustee, or be ex officio in- "^g^J, P™P" vested with a power of disposing of it. (w^y It has been trustee: (?) But see now the bankruptcy act, to insolvent debtors, been repealed by the 1869 (32 & 33 Vict. c. 91), ». 15, sub-sect. "Bankruptcy Repeal and Insolvent Court 3, and s. 47 ; and see ante, 634, note (u). Act, 1869," which transfers to the court of (r) Fyson v. Chambers, 9 M. & W. 460 ; bankruptcy in London the jurisdiction of ante, 634. See, also, Morgan v. Knight, the late insolvent debtors court in relation 15 C. B. N. S. 669. to matters pending in that court. (s) Elliott V. Kemp, 7 M. & W. 306 ; (m) See ante, 653, note (<). ante, 634. [See Reeves v. Matthews, 17 (v) I"ulcher w. Howell, H Sim. 100. Geo. 449.] (w) lb. (i) But this act has, so far as it relates (t«i) [With regard to the question whether [654] 724 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. a subject of some discussion in what cases executors take a fee an executor qualified under the laws of one state may, by virtue of a special power given in the will, make sale of lands in another state, see Newton u. Bronson, 13 N. Y. 587 ; Crusoe v. Butler, 36 Miss. 150. As a general rule, a power to sell land, given by will to an executor, will not de- volve upon an administrator with the will annexed. Conklin v. Egerton, 21 Wend. 430 ; S. C. 25 Wend. 224 ; lloss v. Bar- clay, 18 Penn. St. 179 ; Commonwealth V. Forney, 3 Watts & S. 356; Tainter v. Clark, 13 Met. 220 ; Shaw C. J. in Tread- well V. Cordis, 5 Gray, 359 ; Ashburn v. Ashburn, 16 Geo. 213; Smith b. M'Con- nell, 17 111. 135 ; Dunning v. National Bank, 6 Lansing, 296 ; Drury v. Natick, 10 Alien, 169 ; Greenough v. Welles, 10 Cush. 571 ; Gilchrist v. Rea, 9 Paige, 66 ; Wills v. Cowper, 2 Ohio, 124; Larned v. Bridge, 17 Pick. 339 ; Kidwell v. Brum- magim, 32 Cal. 436 ; Hall «. Irwin, 7 111. 176, 180 ; Evans v. Chew, 71 Penn St. 47 ; Moody V. Vandyke, 4 Binn. 31 ; Moody V. Pulmer, 3 Grant, 17 ; Brown v. Hob- son, 3 A. K. Marsh. 380 ; M'Donald v. King, 1 N. J. (Law) 432 ; Hester v. Hes- ter, 2 Ired. Eq. 330 ; Smith v. McCrary, 3 Ired. Eq. 204 ; Knight v. Loomis, 30 Maine, 208 ; Eoome «. Phillips, 27 N. Y. 357, 363 ; Owens v. Cowan, 7 B. Mon. 156 ; Bailey v. Brown, 9 K. I. 79 ; ante, 461, note (c) ; Vardeman u. Koss, 36 Texas, 111; Dominick v. Michael, 4 Sandf. 374. It was held in Alabama that an adminis- trator with the will annexed cannot ex- ecute a power to sell lands conferred upon the executor appointed by will, but who failed to qualify. Lucas v. Doe, 4 Ala. 679. See Tainter v. Clark, 13 Met. 220. In Conklin u. Egerton, 21 Wend. 430, a power had been granted by will to an ex- ecutor, to sell and dispose of real estate, and to divide the proceeds among devisees to whom the estate was given by a pre- vious clause in the same will. The exec- utor died without having executed the power, and it was held that the power could not be executed by an administrator cum testamento annexe, notwithstanding the provisions of the revised statutes of New York, that "in all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed, and the ad- ministrators of such will shall have the rights and powers, and be subject to the same duties, as if they had been named executors in such will." " This decision is fully sustained by a -well established principle of the common law as laid down in numerous authorities." Wilde J. in Tainter v. Clark, 13 Met. 227 ; Dunning V. Ocean National Bank of City of New York, 6 Lansing, 296, 298, 299. The same was held in Anderson v. McGowan, 42 Ala. 280. But in Pennsylvania, where the executors of the will of the wife, of whom her second husband was one, re- nounced the trust, it was held that the administrator with the will annexed had the same power to sell the estate devised which the executors would have had if they had not renounced, and that his deed passed to the purchaser a valid title to the same. Keefer v. Schwartz, 47 Penn. St. 503. The statute of Pennsylvania, which authorizes an administrator with the will annexed to sell where the will authorized a sale by the executor, is confined to sales for the purpose of administration, and does not extend to sales for collateral pur- poses. Waters v. Margerum, 60 Penn. St. 39. See Chew o. Evans, 8 Phil. (Penn.) 103. The statute of North Carolina, which authorizes the administrator with the will annexed, in case of the death of all the executors, to sell the real estate under the will, applies to the case of such an admin- istrator rendered necessary because no ex- ecutor was nominated in the will. Hester 0. Hester, 2 Ired. Eq. 330. So under the statute of Virginia, where by a will the executors are empowered to sell the lauds of the testator, " provided they will sell for as much as in their judgment will be equal to its value," and they renounce their trust, an administrator with the will PT. II. BK. II.] REAL . ESTATE. 725 simple, in trust to sell, under a will, or are invested merely with a power of disposition, (w^) The distinction resulting from the authorities appears to be this : that a devise cases ex- of the land to executors to sell passes the interest in it ; takfthe but a devise that executors shall sell the land, or that i^^ '™ '™^' 'to sell, or lands shall he sold hy the executors, gives them but a "i^"^ b' a ^NA • • 1 T 1 t I- power of power. {X) An eminent writer has concluded from disposi- an examination of all the cases, that even a devise of land to be sold hy the executors, without giving the estate to them, will invest them with a power only, and not give them an inter- est, (y) annexed may sell in pursuance of the power in the will. Brown v. Armistead, 6 Rand. 594. So in Kentucky, by statute. Shields V. Smith, 8 Bush (Ky.), 601. As to the rule in Missouri, see Dilworth v. Rice, 48 Missou. 124; in Kentucky, Gal- ley ti. Prather, 7 Bush (Ky.), 167. An administrator de bonis rton with the will annexed, and his sureties, are liable on their administration bond for money aris- ing out of the sale of real estate of the testator made in pursuance of the direc- tions of the will. Commonwealth v. For- ney, 3 Watts & S. 353 ; Zeigler v. Spren- kle, 7 Watts & S. 175 ; ante, 534, note (^2). An executor having no interest in the real estate but the power to sell, cannot main- tain an action for trespass committed since the death of the testator. The right of possession belongs to the heirs or devisees. Allboro V. Lowry, 23 Missou. 99 ; ante, 650, note [d>].'\ (w^) [An authority to executors, in a certain contingency, to sell real estate and divide the proceeds among certain per- sons, does not vest the estate in the exec- utors, but simply confers on them a power, and the estate passes at once to the heir if not devised, or to the devisee if devised, subject only to the execution of the power. Scott V. Monell, 1 Eedf. Sur. 431 ; Mar- tin V. Martin, 53 Barb. 172; Marsh v. Wheeler, 2 Edw. Ch. 156 ; Herbert v. Tut- hill, 1 Sax. (N.J.) Eq. 14].] (x) All the cases will be found in 1 Sug- den on Powers, 128 el seq. 6th ed. See, also, Doe v. Shotter, 8 Ad. & El. 905, ac- cord. [See Haskell v. House, Const. Ct. (S. Car.) 106. In Pennsylvania a power to sell real estate, given to the executors by a will, passes the interest in it to them, as fully as if it had been devised to them to be sold. Shippen u. Clapp, 36 Penn. St. 89. Under a power to sell, given to executors in a will, they may sell and con- vey in their own names, without giving any other than the ordinary executor's bond. Alley u. Lawrence, 12 Gray, 373.] (y) 1 Sugden on Powers, 133, 6th ed. But see, on this subject, Co. Lit. 113 a, and Mr. Hargrave's note, where that learned person inclines to construe a de- vise that executors shall sell the_land, as well as a devise of lands to be sold by executors, as investing them with a fee simple, and not merely a power. Powell on Devises, vol. 1, p. 245 et seq. 3d ed., takes the same view of the question as Edward Sugden. [For American cases upon this point, see Dabney v. Manning, 3 Ham. 321 ; Dunn v. Keeling, 2 Dev. 283 ; Blount v. Johnson, Cam. & Nor. 551 ; Robertson v. Gaines, 2 Humph. 267 ; Has- kell V. House, 3 Brev. 242. It was held in Sorrell u. Ham, 9 Geo. 55, that a grant, in letters testamentary, of power to ad- minister the goods and chattels, rights and credits of the testator, gave authority to administer the will also as to real estate.] In Knocker w. Banbury, 6 Bing. N. C. 306, a testator possessed of real and per- sonal property desired his executors, out 726 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. * It sometimes happens that a testator directs his estate to be disposed of for certain purposes, without declaring by whom the sale shall be made. In the absence of such a declaration, if the proceeds he distributable hy the executor, he shall have the power by implication, (t/^) Thus, a power in a will to sell or mortgage, executors without naming a donee, will, if a contrary intention do a power to not appear, vest in the executor, if the fund is to be dis- impiSf-'''' tributable by him, either for the payment of debts or tion, where legacies ; (£) and it seems, that whilst the chain remains ceeds are unbroken, the power, until exercised, will go from him distributa- , • n ' & blebythem: to hlS exeCUtorS. (a) of such moneys of his as might come to their hands, to purchase two annuities for A. W. and her children ; and with regard to the rest of his property, of what kind soever, he desired his executors, after pay- ment of his debts and funeral expenses, to pay and make over the whole to his daugh- ter, and to the children of his said daugh- ter after her decease. The court of com- mon pleas were of opinion that the exec- utors took no interest in the freehold prop- erty, but that they had a power to settle it upon the daughter for life, with remain- der after her decease to her children and their heirs. [Where a naked power of sale is vested in executors, and the land is not devised to them, the title is in the heirs until the sale: Eomaine v. Hendrickson, 24 N. J. Eq. 231.] (yi) [Wilde J. in Tainter v. Clark, 13 Met. 220, 228 ; Lippincott v. Lippincott, 4 Green Ch. 121 ; Jones's Appeal, 5 Grant, 19; Walker v. Murphy, 34 Ala. 591 ; 4 Kent, 326 ; Davoue v. Fanning, 2 John. Ch. 254. A testator, by his will, having authorized his executors to sell real estate, and appointed three persons his executors, afterwards, by a codicil, revoked the appointment of one of them, by name, and appointed another person in his place; it was held that the power to sell devolved upon the two executors who remained as appointed by the will, and the third ap- pointed by the codicil. Pratt v. Rice, 7 Cush. 209. A power to sell real estate, given to executors named in a will, may [655] be executed by one of them, if he alone accepts the office. Taylor v. Galloway, 1 Ohio, 282 ; Wood v. Sparks, 1 Dev. & Bat. (Law) 389 ; Taylor v. Adams, 2 Serg. & E. 534 ; Robertson v. Gaines, 2 Humph. 367 ; post, 651, note (ii) ; Conover v. Hoff- man, 1 Bosw. 214.] (z) 1 Sugd. on Pow. 238, 6th ed., where all the cases are collected. See, also, 2 Preston on Abstracts, 264 ; Curtis v. Ful- brook, 8 Hare, 278 (correcting the report of S. C. 8 Hare, 25) ; [Magruder v. Peter, 11 Gill & J. 217.] And if the produce of the real estate is blended with the personal estate, the power to sell will vest in the executors by implication. Tylden v. Hyde, 2 Sim. & Stu. 238. See, also, Forbes v. Peacock, 11 Sim. 152; 12 Sim. 528 ; 11 M. & W. 630 ; Gosling v. Carter, 1 Coll. 644; Robinson v. Lowater, 17 Beav. 592; 5 De G., M. & G. 272 ; [Am. ed. note (2);] Wrigley v. Sykes, Rolls, 22 Jan. 1856, 20 Jurist, 78; [Gray v. Henderson, 71 Penn. St. 368 ; Dorland v. Borland, 2 Barb. 63 ; Bogert v. Hertell, 4 Hill, 492 ; Meakings ». Cromwell, 2 Sandf 512; Put- nam Free School v. Fisher, 30 Maine, 523 ; Magruder o. Peter^ II Gill & J. 217; Peter v. Beverly, 10 Peters, 532 ; Honck V. Houck, 5 Penn. St. 273 ; Lockhart v. Northington, 1 Sneed, 318.] (o) 1 Sugd. on Pow. 138, 6th ed. So it may be exercised by the survivor of two or more executors. Forbes v. Peacock, 11 M. & W. 630. [When the testator by his will directs lands to be sold, without PT. II. BK. II.J REAL ESTATE — POWER OF SALE. 727 But in Bentham v. Wiltshire, (6) where a testator bequeathed an estate to his wife for life, and directed that after her decease the estate should be sold to the hisfhest bidder ^'■^''^ 'he 1 IT • 11 . . manage- by public auction, and the money arising from such sale mentofthe 1 J. z L i • T • 1 • -ii fund is not be disposed or among certain persons named in his will, given to and he appointed his wife and another person execu- "'^'"' tors ; it was held that the power was not given by implication to the executors ; because they had nothing to do with the prod- uce of the sale, nor any power of distribution with respect to it.(c) * In this case the vice chancellor (Leach) said that the power to the executors to sell is " necessarily to be implied from ^^etiier a the produce being to pass through their hands in the "^^^^ execution of their office, as in the payment of debts and debts on legacies." (e^) And accordingly before the case of Doe tiieexecu- V. Hughes, (c^) the law had, it appears, been considered p'i[edpo™r to be that the effect of a charge of the real estates with "^ **^^' debts was to give to the executors an implied power of 22 & 23 sale, (c^) But in that case the barons of the exchequer i^ra,' ' deliberately denied this proposition ; and held that, where 'i<"«('^)- a testator, after charging all his real and personal estate with his naming the person by whom the sale is to that he did not think Sir John Leach be made, the power to sell and convey de- would have decided as he did in that case volves upon the executors, and survives to if he had seen the case of Ward v. Devon, the survivor of them. Houck u. Houck, which was decided by Sir W. Grant (11 5 Penn. St. 273 ; Jenkins v. Stouffer, 3 Sim. 160). See, however, Haydon v. Yeates, 163 ; Anderson o. Turner, 3 A. Wood, 8 Hare, 279, note (o), and Curtis K. Marsh. 131 ; Tainter v. Clark, 13 Met. o. Fulbrook, lb. 278 (correcting the report 220, 225-228 ; Magruder v. Peter, 11 Gill lb. 25). 6 J. 217. As to the execution by sur- (c^) [In Going p. Emery, 16 Pick. Ill, vivors of a power of sale, given in a will, 112, Shaw C. J. assumed it to be the rule, coupled with an interest, see Jackson v. " that if a testator, having a right to dis- Burtis, 14 John. 391 ; Franklin v. Osgood, pose of his real estate, directs that to be 14 John. 527; Jackson 17. Given, 16 John, done by his executor, which necessarily 167.] implies that the estate is first to be sold, a (6) 4 Madd. 44. power is given by this implication to the (c) See, also, Patton v. Randall, 1 Jac. executor to make such sale and execute & W. 189; 1 Sugd. on Pow. 138, 139, 6th the requisite deeds of conveyance." See ed. ; AUum v. Fryer, 3 Q. B. 442, 446, Loekart v. Northington, 1 Sneed, 318 ; accord. [See Walter ». Logan, 5 B. Mon. Livingston v. Murray, 39 How. (N. Y.) 516.] But the authority of Behthara v. Pr. 102.] Wiltshire was doubted by Shadwell V. C. (c^) 6 Ex. 223. in Forbes v. Peacock, 11 Sim. 152, 12 Sim. (c*) See 17 Beav. 601, by Romilly M. 528, and his honor said (12 Sim. 536) B. [656] 728 OF THE QUANTITY OF AN KXEOUTOK'S ESTATE. [PT. II. BK. II. debts, funeral and testamentary expenses, and a certain legacy, devised the rents and profits of all his messuages and lands, ex- cept his Bala houses, to his wife for life with remainder in fee to H., and also bequeathed to his wife the whole of his personal estate and appointed her sole executrix, the Bala houses descended to the heir, subject to a charge which could only be enforced in equity ; and that the executrix had no implied power to sell or mortgage them for the payment either of the debts, funeral or testamentary expenses, or legacy, (ci) * It is here necessary to observe, that a testator cannot alter a testator t^g leqal character of real property, by directing, either cannotturn ^ , ,.,,,, • -, ^ his real impliedly or expressly, that it shall be considered part kgaiVei-" of his personal estate. Accordingly, it may now be con- by"direct-''' sidered a settled rule, that where lands are devised to (d) [Den v. Allen, 2 N. J. (Law) 45 ; Dunn V. Keeling, 2 Dev. (N. Car.) 283 ; In the Matter of the Will of Fox, 52 K Y. 530.] See, however, the remarks made on this case and the authorities cited by Kom- illy M. R. in Kobinson v. Lowater, 17 Beav. 601 ; S. C. on appeal, 5 De G., M. & G. 272 ; [Am. ed. note (2), and cases cited.] And, notwithstanding the decision of Doe V. Hughes, it is understood to be now clearly established in accordance with the Stat. 22 & 23 Vict. c. 35, hereafter men- tioned, that where there is a general charge of debts, and no distinct provision as to the person by whom the sale is to be made, then the executors take an implied power to sell for the payment of debts. 1 Johns. & H. 309, by Wood V. C. See, also, Wrigley v. Sykes, 21 Beav. 337 ; Sabin v. Heape, 27 Beav. 553 ; Cook v. Dawson, 29 Beav. 123, 126. See, also, S. C. on ap- peal, 3 De G., F. & J. 127 ; but see, also, lb. 128, by Lord Justice Knight Bruce. But an exception, it seems, prevails where the direction that the debts shall be paid is coupled with the direction that they are to be paid by the executor, for that in such case it is assumed that the testator meant that the debts should be paid only out of the property which passes to the executor. 29 Beav. 126,127; 3 De G., F. & J. 127. So where the estate is de- [667] vised to another charged with the pay- ment of debts, the doctrine of implying a power in the executors does not apply ; for there the money is to be raised through the instrumentality of a sale by the dev- isee, and that devisee is the person and the only person that can make a legal title. Colyer v. Finch, 5 H. L. Cas. 905. So where a testator after a charge of debts devised real estates to trustees upon trusts for his daughters and their families, and after the death of the surviving daughter upon trust to sell, with power to give re- ceipts, and to apply the proceeds after satisfying all incumbrances affecting the said real estates upon certain trusts ; Wood V. C. held, on demurrer, that the trustees could make a good title without the concurrence of the executors, though the learned judge appears to have conceded that the executors would have had the power to sell previously if they had chosen so to do. Hodkinson v. Quinn, 1 Johns. & H. 303. But with respect to all wills which have come into operation after 1 3th August, 1859, the power to sell is expressly conferred on executors by stat. 22 & 23 Vict. c. 35, ss. 14, 16, where the testator has charged his real estate with the pay- ment of his debts or legacies, and has not devised the hereditaments so charged to trustees. PT. II. BK. II.J EQUITABLE CONVERSION. 729 executors, to be sold for the payment of debts and leg- ""k ■* t" be acies, the money arising from the sale is to be consid- ■ herwise. ered equitable and not legal assets, (e) The distinction between these two kinds of assets, and the consequences of that distinc- tion, will be considered hereafter, with the subject of assets gen- erally. It is, however, an established doctrine in courts of equity, that things shall be considered as actually done, * which ought Doctrine of 11 1 -,...., \. 1 . ■ equitable to have been done ; and it is with reference to this prin- conversion; ciple, that land is under some circumstances regarded as money, and money as land. It was laid down by Sir Thomas Sewell M. R. in Fletcher v. Ashburner, Cf ~) "that nothing was , , ' ^''_^ ° _ land con- better established than this principle, that money di- sideredas rected to be employed in the purchase of land, and land and money directed to be sold and turned into money, are to be con- sidered as that species of property into which they are directed to be converted ; and this in whatever manner the direction is given ; whether by will, by way of contract, marriage articles, settlement or otherwise, and whether the money is actually depos- ited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. (/^) The owner of the (e) Cliiy V. Willis, 1 B. & C. 364 ; 2 D. Brearley, I Stockt. (N. J.) 21 ; Taylor v. & R. 539; Barker o. May, 9 B.& C. 489. Benham, 5 How. (U. S.) 233. See Ane- See Attorney General v. Brunning, 8 H. L. wait's Appeal, 42 Penn. St. 414. Money Cas. 243 ; ante, 622. [See In' the Matter of directed to be laid out in land, and settled on A. in fee, is, though not actually laid out, descendible as real estate to the heir ; is subject to tenancy hy the curtesy; Sweetapple v. Bindon, 2 Vern. 536 ; Cun- Will of Fox, 52 N. Y. 530, 537.] (/) I Bro. C. C. 497. (/I) [Holland v. Cruft,3 Gray, 162, 180. When it is the intention of a testator that his real estate shall be converted into ningham v. Moody, 1 Ves. 174 ; Dodson a pecuniary fund, to be held by trustees, for purposes indicated in the will, it is V. Hay, 3 Bro. C. C. 404 ; and passes by a devise of lands, tenements, and heredita- deemed to be personalty from the time of the ments ; Lingen v. Sowray, 1 P. Wms. 172; testator's death, nor is such change pre- Shorer v. Shorer, 10 Mod. 39 ; Harvey u. vented by the death of the person entitled Aston, 1 Atk. 364; Guidot v. Guidot, 3 to the proceeds before the execution of the power. Gourley u. Campbell, 13 S. C. (N. Y.) 218; Hays v. Gourley, 8 S. C. (N. Atk. 254 ; Eashleigh o. Master, 1 Ves. jr. 201 ; S. C. 3 Bro. C. C. 99 ; Hickman v. Bacon, 4 Bro. C. C. 333 ; Green u. Ste- Y.) 38; Stagg <;. Jackson, 1 Comst. 206; phens, 12 Ves. 419; S. 0. 17 Ves. 64; Marsh v. Wheeler, 2 Edw. Ch. 157 ; Bram- and will not pass under a bequest purport- hall I'. Ferris, 14 N. Y. 41, 46 ; Phelps v. Pond, 23 liT. Y. 69; White v. Howard, 46 N. Y. 162 ; Bunce v. Vandergrift, 8 Paige, 37; Clay v. Hart, 7 Dana, 11; Evans v. Kingsberry, 2 Kand. 120 ; Brearley u. ing to include personal estate only. Gil- lies V. Longlands, 15 Jur. 570; S. C. 20 L. J. Ch. 441 ; Richards v. Attorney Gen- eral of Jamaica, 13 Jur. 197 ; In re Ped- der's Settlement, 5 De G., M. & G. 890. [658] 730 OF THK QUANTITY OF AN EXECUTOR'S ESTATE. [PT. U. BK. H. fund, or tlie contracting parties, may make land money, or money land." (^) It follows, therefore, that every person claiming prop- erty under an instrument directing its conversion must take it in the character which that instrument has impressed upon it ; (^^) and its subsequent devolution and disposition will be governed by the rules applicable to that species of property. (A) So, in the converse case of real estate, being directed to be sold, and the proceeds bequeathed to A., who, after surviving the testator, happens to die before the sale, the property devolves to his personal, not his real, representative, with all the incidental qualities of real estate. Elliott v. Eisher, 12 Sim. 505; 1 Jarman, 550.] {g) See Wheldale v. Partridge, 5 Ves. 396, where Lord Alvanley remarks the ac- curacy of this statement of the doctrine. This doctrine does not extend to the inter- pretation of statutes imposing duties on personal estate. In re Delancey, L. R. 4 Ex. 345, per Kelly C. B. (?') [Where a testator directs land to be sold, and the proceeds to he reinvested in other lands, such proceeds are to be re- garded as land in the settlement of the es- tate, although they have not been actually reinvested. Haggard v. Rout, 6 B. Mon. 247; Sperling v. Toll, 1 Ves. 70; Pearson V. Lane, 17 Ves. 101 ; In re Pedder's Set- tlement, 5 De G., M. & G. 890 ; 1 Jarman Wills (SdEng. ed.), 551.] (A) 2 Powell Dev. 61, Jarman 's ed. [See 1 Jarman Wills (3d Eng. ed.), 549; Lewin Trusts (5th Eng. ed.), 675 et seq. ; Monroe v. Wilson, 6 Monr. 122 ; Justices &c. V. Lee, 1 Monr. 247 ; Speed v. Nelson, 8 B. Mon. 499 ; Taylor v. Taylor, 8 B. Mon. 419; Clondas v. Adams, 4 Dana, 603 ; Dyer „. Cornell, 4 Penn. St. 359 ; Grider v. M'Clay, 11 Serg. & R. 224; Pennell's Appeal, 20 Penn. St. 515; 1 Eedf. Sur. 276; Nagle's Appeal, 13 Penn. St. 262 ; Biggert's Estate, 20 Penn. St. 17; Biggert v. Biggert, 7 Watts, 563; Sutter V. Long, 25 Penn. St. 466 ; Loril- lard ;;. Coster, 5 Paige, 172 ; Kane v. Gatt, 24 Wend. 641 ; High v. Worley, 33 Ala. 196; Drake v. Pell, 3 Edw. Ch. 251; Johnson i>. Burnett, 39 Barb. 237; Par- kinson's Appeal, 32 Penn. St. 455 ; Bogert V. Hertell, 4 Hill (N. Y.), 492; Brothers V. Cartwright, 2 Jones Eq. 113; Clay k. Hart, 7 Dana, 1 1 ; Romaine v. Hendrick- son,'9 C. E. Green, 231. Where a bequest of money is directed in the will " to be considered as land, or invested in land, upon a certain contingency," it will be treated as if it was land from the time of the happening of the contingency. Tay- lor V. Johnston, 63 N. Car. 381. See Ross V. Drake, 37 Penn. St. 373. But in order to work a constructive conver- sion, an actual sale or purchase, either immediately or in future, and either ab- solutely or contingently at a specified time, must be directed expressly or im- pliedly. Christler v. Meddis, 6 B. Mon. 35 ; Haggard v. Rout, 6 B. Mon. 247. A mere direction that real estate is to be considered as personal, or vice versa, is in- sufficient; Johnson v. Arnold, 1 Ves. 171 ; Attorney General u. Mangles, 5 M. & W. 120 ; since the law does not allow prop- erty to be retained in one shape, and yet devolve as if it were in another. 1 Jar- man Wills (3d Eng. ed.), 551. Where there is an option to invest money, either in fee simple lands, or leaseholds, or on securities bearing interest, there will be no constructive conversion of the money into land, unless the trusts or limitations de- clared of the fund are such as to be solely applicable to fee simple property, and can be properly carried out only by the pur- chase of such property. See De Beauvoir V. De Beauvoir, 3 H. L. Cas. 524. Where the trusts are applicable solely to person- alty, or may be adapted either to person- alty or fee simple lands, the money will be deemed unconverted. 1 Jarman Wills (3d Eng. ed.), 551. For cases where money has been held to be converted, see Earlom PT. II. BK. II.] EQUITABLE CONVERSION. 731 * Again, since equity looks upon things agreed to be done, as actually performed, it follows that, when a real estate land con- is contracted to be sold, the vendor is regarded in equity be sold : V. Saunders, Amb. 241 ; Johnson w. Arnold, 1 Ves. 1 69 ; Meure v. Meure, 3 Atk. 265 ; Cowley V. Harstonge, 1 Dow, 361 ; Here- ford V. Ravenhill, 5 Beav. 51 ; Cookson v. Eeay, 5 Beav. 22 ; Simpson u. Ashworth, 6 Beav. 412 ; Cookson v. Cookson, 12 CI. & Fin. 121. For cases in which the ques- tion has arisen and it was held that there was no conversion, see Curling v. May, cited 2 Atk. 255 ; Van v. Barnett, 19 Ves. 102 ; Biggs V. Andrews, 5 Sim. 424 ; Walker v. Denne, 2 Ves. jr. 170. Some- times there is no express trust for conver- sion, but the circumstances are such as to lead to an implication that conversion was in tended. See Cornick v. Pearce, 7 Hare, 477. As to implication of conver- sion for convenience of division, see Mower V. Orr, 7 Hare, 475 ; Greenway v. Green- way, 29 L. J. Ch. 601 ; S. C. 2 De G., F. & J. 128 ; Burrell v. Baskerfield, 11 Beav. 525; Tily v. Smith, 1 Coll. 434; Pearce V. Gardner, 10 Hare, 287. A provision that, until land be purchased, the money shall be placed out on security at interest, does not prevent its receiving the impres- sion of real estate instanter (see Edwards V. Countess of Warwick, 2 P. Wms. 171), this being a mere temporary arrange- ment ; unless it appears, as of course it may from other parts of the instrument, that the arrangement is not, in fact, in- tended to be merely temporary, for in- stance, if by a final disposition of the capital fund, in certain events, as money, it is shown that the conversion is to take place only in the alternative events. Wheldale V. Partridge, 5 Ves. 388; S. C. 8 Ves. 227 ; 1 Jarman Wills (3d Eng. ed.), 556. It is not material that the sale or purchase is to be made only when or in case the trustees think fit or with the approba- tion, or upon the consent of certain per- sons. Doughty V. Bull, 2 P. Wms. 320 ; Robinson v. Kobinson, 19 Beav. 494 ; Lechmere v. Earl of Carlisle, 3 P. Wms. 21 1 ; Wrightson v. Macaulay, 4 Hare, 497; Huskisson v. Lefevre, 26 Beav. 157 ; 1 Jarman Wills (3d Eng. ed.), 556; Ar- nold u. Gilbert, 5 Barb. 190. If the pur- chase is to be made on or after request, the question whether or not a conversion is intended, must be answered from a con- sideration of the whole instrument, and especially of the trusts to which the prop- erty is subjected, and the persons by whom the request is to be made. See Thornton «. Hardley, 10 Ves. 129; Triquet v. Thornton, 13 Ves. 345 ; Van v. Barnett, 19 Ves. 102 ; Taylor's Settlement, 9 Hare, 596 ; Davies v. Goodhew, 6 Sim. 585 ; 1 Jarman, 557, 558 ; Johnson v. Arnold, 1 Ves. 169 ; Sykes v. Sheard, 33 Beav. 114 ; Lewin Trusts (5th Eng. ed.), 684, 685. If the trustees decline to exercise their discretion, the court will consider the con- version as effected at the testator's death, and of course they may not frustrate the intended conversion by withholding their consent from corrupt or interested motives. Lord V. Wightwick, 4 De G., M. & G. 803; S. C. 6 H. L. Cas. 217 ; 3 Jur. N. S. 699 ; 1 Jarman, 558, and note (o). It seems that the converting effect of a trust for sale, in regard to a legatee to whom the proceeds are bequeathed, is not prevented by the fact, that in an alterna- tive event, the testator has devised the property in terms adapted to its original state, as he may have contemplated the possibility of the contingency happening before a sale could be effected, besides which, it seems to have been considered, that the property might be real estate as to one legatee, and personal as to another, to whom it was given in an alternative event. 1 Jarman, 558 ; Ashley v. Palmer, 1 Meriv. 296, more accurately reported in 1 Jarman, 558, 559 ; Crabtree v. Bramble, 3 Atk. 680. As to partial conversion with regard to a particular interest in property, see Cowley v. Harstonge, 1 Dow, 381 ; Wallu. Colshead, 1 Jarman, 558, note (o) ; 2 De G. & J. 683. And though a mere [659] 732 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. as a trustee for the purchaser of the estate sold, (^■) and the pur- power of sale or purchase, of course, does not change the nature of the property; Harris v. Clark, 7 N. Y. 242 ; yet, the cir- cumstance of the clause respecting the sale or purchase being framed in the lan- guage of a power, will not prevent its pro- ducing a constructive conversion, if the context of the will shows that it is meant to be imperative, or in the nature of a trast. See Grieveson v. Kirsopp, 2 Keen, 653 ; Burrell u. Baskerfield, 11 Beav. 525 ; 1 Jarman, 560 ; Arnold v. Gilbert, 5 Barb. 190. But although, in general, the presumption is that a testator docs not in- tend the nature of the property to depend upon the option of the person through whom the conversion is to be eflfected ; yet, if upon the whole will it appears to have been the intention of the testator to give to such person an absolute discretion to sell or not, the property in the mean time will, as between the real and personal rep- resentatives of the persons beneficially entitled, devolve according to its actual state. See Policy v. Seymour, 2 Y. & Coll. 708 ; Taylor's Settlement, 9 Hare, 596 ; Harding v. Trotter, 21 L. T. 279, V. C. S. ; Grecnway v. Greenway, 2 De G., F. & J. 128; Yates v. Yates, 6 Jur. N. S. 1023 ; Lucas v. Brandreth, 6 Jur. N. S. 945. And so it was held in Eomaine v. Hendrickson, 9 C. E. Green, 231, that where a naked power of sale is vested in executors, with no absolute direction to convert, but wholly discretionary, not only as to the time of sale, but as to whether the sale shall ever be made, the land re- mains land, until the sale actually takes place. Runyon Ch. in this case said : " The power of sale is not one that is to be exercised on the happening of a certain event, or at a given time, but is wholly discretionary, not only as to the time of sale, but as to whether the sale shall ever be made. It may never be exercised. It is a power and not a trust. The land was not devised to the executors, and in the mean time, until the sale, the title is in the heirs, and they have power to transfer their interest in it, at all events, so far as to entitle the alienee to all their rights, whatever disposition should be afterwards made of it. Den v. Snowhill, 3 Zabr. 447 ; Den v. Creveling, 1 Dutcher, 449 ; Herbert v. Tuthill, Saxton, 141 ; Gest v. Flock, 1 Green Ch. 108 ; Fluke v. Fluke, 1 C. E. Green, 478. The direction to con- vert not having been absolute, but wholly discretionary, the land was land and not money, until the conversion should act- ually have taken place. Gest v. Flock, supra ; Cook v. Cook, 5 C. E. Green, 375 ; Christler v. Meddis, 6 B Mon. 35 ; Hag- gard V. Eout, 6 B. Mon. 247. Land, di- rected to be sold upon the occurence of a certain event, is to be treated as personal estate when that event happens. Broth- ers V. Cartwright, 2 Jones l^q. 113. But see Binehart u. Harrison, Baldw. 177; Rumsey v. Durham, 5 Ind. 71.] As to what shall, or shall not amount to a direc- tion for conversion, see Grieveson v. Kir- sopp, 2 Keen, 653 ; Biggs v. Andrews, 5 Sim. 424; Simpson v. Ashworth, 6 Beav. 412 ; Matson a. Swift, 8 Beav. 368, 374, 375,376; Elliott w. Fisher, 12 Sim.. 505; Tily V. Smith, 1 Coll. 434 ; Wrightson v. Maoaulay, 4 Hare, 487 ; PoUey v. Sey- mour, 2 Y. & Col). Ex. 709; Flint v. Warren, 14 Sim. 554; Burrell u. Basker- field, 11 Beav. 525; Ward u. Arch, 15 Sim. 389; Griffith v. Ricketts, 7 Hare, 299; Mower v. Orr, 7 Hare, 475 ; Cornick V. Pearce, 7 Hare, 477 ; De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524 ; Shallcross v. Wright, 12 Beav. 505; Hardy v. Hawk- shaw, 12 Beav. 552; Griesbach ^. Free- mantle, 17 Beav. 314 ; In re Taylor's Set- tlement, 9 Hare, 596; Lucas v. Brandreth, 28 Beav. 273 ; Greenway v. Grecnway, 2 De G., F. & J. 128 ; In re Ibbitson's Es- stnte, L. R. 7 Eq. Cas. 226 ; Brickenden v. (i) Atchcrley u. Vernon, 10 Mod. 518; Davie v. Beardsham, 1 Chan. Cas. 39; Sugden's Vendors &c. ch. 4, s. 1. PT. II. BK. II.] EQUITABLE CONVERSION. 733 chaser as a trustee of the purchase-money for the vendor. Qk) Williams, L. R. 7 Eq. Cas. 310. See, also, Sugden's Law of Property, 460, and the cases as to legacy duty collected post, pt. III. bk. V. ch. II. ; [1 Jarman, 561-564, and notes.] There is no equity for the crown to call for a conrersion of real prop- erty in order that it may take the prod- uce of it. Taylor v. Haygarth, 14 Sim. 8; Henchman v. Attorney General, 3 My. & K. 485. It should be further observed. 345 ; [see Harcourt v. Seymour, 2 Sim. N. S. 12 ;] or making a lease of the estate directed to be sold ; Crabtree v. Bramble, 3 Atk. 680; see Cookson v. Reay, 5 Beav. 22; see, also, Cookson u. Cooksoff, 12 CI. & Fin. 121 ; [taking possession of deeds, Davis V. Ashford, 15 Sim. 42.] Preserv- ing the property in its actual state may be sufficient. Dixon v. Gayfere, 17 Beav. 433. But the mere circumstance of the fund re- that though a new character may, by this maining unconverted in the hands of the doctrine of equitable conversion, have been impressed upon the property, yet it is in the power of any person (not person- ally incompetent) who is entitled to it ab- solutely [Sisson V. Giles, 32 L. J. Chanc. 606] to elect to take it in its actual state. [Shallenberger v. Ashworth, 25 Penn. St. 152; Trecothiek u. Austin, 4 Mason, 39; Mandlebaum v. McDonell, 29 Mich. 78, person entitled to it at all events is not, unaccompanied by length of time, evidence of his intention to alter its new character. Kirkman v. Miles, 13 Ves. 338. See, also, Griffith V. Ricketts, 7 Hare, 299 ; Brown u. Brown, 33 Beav. 299. [It is to be ob- served, that in order to amount to an elec- tion to take property in its actual, as dis- tingished from its eventual, or destined. 86, and cases cited ; 1 Jarman, 564 ; Carr state, the act must be such as to absolutely V. Ellison, 2 Bro. C. C. 56 ; Van v. Bar- determine and extinguish the converting nett, 19 Ves. 102 ; Robinson v. Robinson, trusts, and hence it would seem to follow, 19 Beav. 494 ; Ashby v. Palmer, 1 Meriv. that where two or more persons are inter- 296 ; Doncastcr v. Doncaster, 3 Kay & J. ested in the property, it is not in the power 26; Smith u. Starr, 3 Whart. 62; Leiper of any one co-proprietor to change its V. Irvine, 26 Penn. St. 54 ; Baker v. Co- character, in regard even to his own share. penbarger, 15 111. 103.] Slight circum- stances, and even parol declarations of such an intention, will be sufficient for this election; see I Roper on Leg. 473, 3d ed. ; Matson v. Swift, 8 Beav. 375, per Lord Langdale M. R. ; [Edwards v. Countess of Warwick, 2 P. Wms. 173 ; Bradish v. Gee, Amb. 229 ; Chaloner o. Butcher, cited 3 Atk. 685 ; 1 Jarman, 565 ;] but they must be unequivocal. Stead v. Newdigate, 2 Meriv. 531 ; Biggs v. Andrews, 5 Sim. 424 ; Meredith v. Vick, 23 Beav. 559 ; In re Pedder's Settlement, 5 De G., M. & G. 890. See, also, Harcourt v. Seymour, 2 Sim. N. S. 12; Griesbach v. Freemantle, 17 Beav. 314 ; Gillies v. Longlands, 4 De G. & Sm. 372. the money to for, as the act of the whole would be req- uisite to put an end to the trust, nothing less will suffice to impress upon the prop- erty a, transmissible quality, foreign to that which it had received from the testa- tor. 1 Jarman, 567; Elliott v. Fisher, 12 Sim. 505; Hollowayj;. Radcliffe, 23 Beav. 163; Griesbach u. Freemantle, 17 Beav. 314. But although it is not in the power of the owner of an undivided share, or any other partial interest in property which is directed to be converted, by his single act to change its character, and thereby impart to it a different transmis- sible quality, it does not follow that every, disposition by such partial owner adapted Changing the security of to the property in its actual state, is nuga- be laid out in land will tory. On the contrarj', it is clear, that if effectuate the purpose ; Lingen v. Sowray, the person entitled to a partial interest in 1 P. Wms. 172; or bequeathing it as per- money to be laid out in land, shows an iu- sonalty; Triquet i'. Thornton, 13 Ves. tention to dispose thereof by will, or other- (h) Green o. Smith, 1 Atk. 572 ; PoUexfen o. Moore, 3 Atk. 272. 734 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. Hence, the death of the vendor or vendee before the convey- ance, (Z) or surrender, (ni) or even before the time agreed upon for completing the contract, is in equity immaterial, (n) If the vendor die before the payment of the * purchase-money, it will go to his executors and form part of his assets ; (o) and even if a vendor reserve the purchase-money, payable as he shall appoint by an instrument executed in a particular manner, and afterwards exercise his power, the money will, as between his creditors and appointees, be assets, (p) So if the contract be valid at the death of the vendor, but the purchaser loses his right to a specific per- formance by subsequent laches, the estate belongs to the next of kin and not to the heir-at-law. (g) Again, if a man devises his real estate and afterwards sells it, and the purchase is not com- pleted until after his death, the purchase-money belongs to his personal representatives, notwithstanding the stat. 1 Vict. c. 26, s. wise, as personal estate, it will pass by such disposition ; Triquet v. Thornton, 13 Tes. 345; though, on the death of the donee it would devolve to his real represen- tative. 1 Jarman, 568. So, if the legatee of the proceeds of real estate, directed to be sold, devise the land in its character of real estate, the devisee will be entitled to the fund in question, though it would, when acquired, be personal estate in the hands of such devisee. See Hewitt v. Wright, 1 Bro. C. C. 86 ; 1 Jarman, 658 ; May V. Roper, 4 Sim. 360. Where there is no absolute indication on the part of the testator that land shall be converted into money, and the trustee under the will conveys land to the husband of the dev- isee, he will hold as trustee for his wife ; yet, if the will may be construed as direct- ing the whole estate of the testator to be sold, the husband of the devisee cannot, under the doctrine of equitable conversion, and in virtue of his right to take the money if he can get it, take the land as money, and hold it as he would the money itself, free from all claim of the wife. Samuel V. Samuel, 4 B. Mon. 245.] (I) Paul V. Wilkins, Toth. 106. (m) Barker v. Hill, 2 Chanc. Rep. 218. (n) Sugden, uhi supra. See Hudson v. Cook, L. R. J3 Eq. Ca. 417. The rents [660] which accrue between the vendor's death and the time for completing the contract belong to the vendor's heir and not to his executor. Lumsden v. Fraser, 12 Sim. 263. See, also, Shadforth v. Temple, 10 Sim. 184. (o) Sikes V. Lister, 5 Vin. Abr. 541, pi. 28 ; Baden v. Earl of Pembroke, 2 Vern. 213 ; Bubb's case, 2 Freem. 38; Smith v. Hibbert, 2 Dick. 712 ; Foley v. Percival, 4 Bro. C. C. 429; Sugden, ubi supra; Eaton V. Sanxter, 6 Sim. 517. [A con- tract for the sale of land passes to the ex- ecutor or administrator, as between him and the heir or devisee, as personal estate. Moore v. Burrows, 34 Barb. 173; Adams V. Green, 34 Barb. 176. The unpaid pur- chase-money, however secured, goes to the executor or administrator, and is to be distributed as personal property, with- out reference to the source from which the land is derived. Henson v. Ott, 7 Ind. 512 ; Anthony v. Peay, 18 Ark. 24; Lor- ing V. Cunningham, 9 Cnsh. 87 ; Sutter V. Ling, 25 Penn. St. 465 ; 1 Sugden V. & P. (8th Am. ed.) 175, 177; 1 Story Eq. Jur. § 64 J, ■ Craig v. Leslie, 3 Wheat. 563, 577.] (p) Thompson v. Towne, 2 Vern. 319 ; Sugden, ubi supra. (?) Curre v. Bowyer, 5 Beav. 6, note (6). PT. II. BK. 11.] EQUITABLE CONVERSION. 735 23, (»•) and not to his devisee, (s) So where, after making a will devising a specific estate and bequeathing the personal residue to other persons, a testator entered into a contract, giving an option of purchase over part of the estate, which option was exercised after the death ; it was held by Wood V. C. that the property- was converted, from the date of the exercise of the option, and went to the residuary legatee. (^) * On the same principle, money covenanted to be laid out in land will descend to the heir, (u) Nor will it make any difference that the covenant is a voluntary one. There- covenanted fore, if a man, without any consideration, covenant to outin^' lay out money in a purchase of land to be settled on him '"""^ ' and his heirs, a court of equity will compel the execution of such contract, though merely voluntary, (y) But where a person cov- enants to lay out money in land, and afterwards himself becomes solely entitled to it, so that the obligation to lay out, and the right to call for the money, centre in the same person, the money, it should seem, is considered as discharged ; as where a man, on his marriage, covenants to lay out a sum of money in the purchase of land, to be settled for the use of himself for life, remainder to his intended wife for life, remainder to the first and other sons of the marriage in tail, remainder to the daughters in tail, remainder to his own right heirs, and the husband does not lay out the money, and survives his wife, who dies without issue ; it has been held that the money, though once bound by the articles, became free again by the death of the wife without issue, and the consequent failure of the objects of the several limitations, and was, therefore, at the death of the settlor, his personal estate, (x) (r) The new wills act. See preface. Stewart, 1 Sm. & G. 32, and the cases (s) Parrer !>. Winterton, 5 Beav. ]. See, cited /losi, 669. also, Moor v. Raisbeck, 12 Sim. 123. The (() Weeding o. Weeding, 1 Johns. & law is the same where the sale was by H. 424. contract under the compulsory powers of («) Edwards v. Countess of Warwick, a railway company. In re The Manches- 2 P. Wms. 171. See Barham v. Claren- ter & Southport Railway, 19 Beav. 365. don, 10 Hare, 126. See, also, Richards r. Attorney General of (v) 2 P. Wms. 171. Jamaica, 6 Moore P. C. 381. On the (x) Chichester v. Bickerstaff, 2 Vern. general question whether the proceeds of 295. This decision was questioned by compulsory sales, under acts of parlia- Lord Talbot in Lechmere v. Lechmere, ment, are to be considered real or personal Cas. temp. Talb. 90, and by Joseph Jekyll estate, see In re Homer, 5 De G. & Sm. in Lechmere u. Earl of Carlisle, 3 P. 483; In re Taylor, 9 Hare, 596; In re Wms. 221 ; but confirmed by Lord Thur- [661] 736 OF THE QUANTITY OF AN EXECUTOE'S ESTATE. [PT. II. BK. II. So a testator has the power, by his will, to change the nature conversion of ^^^ real estate, to all intents and purposes, so as to out"' b°^ preclude all questions between his real and personal rep- ■^iU: resentatives after |iis death. («/) This has been some- times described as " a conversion out and out." (2) And * when it clearly appears (gi) to have been his intention thus to impress on it the character of personal estate to all intents and purposes, the mere appointment of an executor will be sufficient to carry that property to him, (a) either for his own benefit, in cases where he is beneficially entitled to the personal estate ; or as a trustee for the next of kin, in cases where he holds the personal estate on the like trust. (J) But this doctrine has been qualified by modern low, in Pulteney v. Lord Darlington, 1 Bro. C. C. 238, and the determination of the house of lords in the same case, 7 Bro. P. C. 530, Toml. ed. See 2 Powell Dev. 73, Jarman's ed. {y) Johnson v. Woods, 2 Beav. 409, 413, by Lord Langdale. [Lands devised to be sold will be treated in equity as money ; and if the wife of a person is en- titled to the proceeds of such land, and she dies after it is sold, her surviving hus- band is entitled to the same portion which he would be authorized to receive of any other personal estate left by her. Hurtt u. Fisher, 1 H. & Gill, 88 ; Collier 0. Col- lier, 3 Ohio St. 369 ; Ferguson v. Stew- art, 14 Ohio, 140; Thomas v. Wood, I Md. Ch. 296 ; Maddox v. Dent, 4 Md. Ch. 543 ; Willing o. Peters, 7 Penn. St. 287 ; Binehart v. Harrison, Baldw. 177.] («) As to this expression, see 10 Beav. 175; 12 Beav. 508. (zi) [See Chew v. Nicklin, 45 Penn. St. 84 ; Edwards's Appeal, 47 Penn. St. 144.] (a) By Sir Wm. Grant, in Berry v. Usher, 11 Ves. 91 ; [Mathis v. Guffin, 8 Rich. Eq. 79 ; Wilkins v. Taylor, 8 Rich. Eq. 291.] (6) See infra, pt. iii. bk. iii. ch. v. § 11. and 1 Rop. Leg. 455, 3d ed. [In Ham- mond V. Putnam, 110 Mass. 235, 236, Morton J. said : " The general rule is rec- ognized in all of the English and Amer- ican cases, that where it unequivocally appears from the will that the intention of [662j the testator was to convert real estate into personal estate, the law will consider the conversion as actually made at the death of the testator, and treat the estate as per- sonal for all purposes to which the inten- tion of the testator clearly extends." " He who takes the estate under the will takes it with the character which the will has impressed upon it." See 1 Jarman Wills (3d Eng. ed.), 549 et seq.; Martin v. Sher- man, 2 Sandf. Ch. 341 ; Craig v. Leslie, 3 Wheat. 563 ; Wurts v. Page, 19 N. J. Eq. 365; Scudder v. Varnarsdale, 13 N. J. Eq. 109 ; Forsythe v. Rathbone, 34 Barb. 388; Conly v. Kincaid, 1 Wins. (N. Car.) 44; Ex parte Bebee, 63 N. Car. 332; Harcum v. Hudnall, 14 Grattan, 369 ; Smith V. McCrary, 3 Ired. Law, 204 ; Phelps V. Pond, 28 Barb. 121 ; S. C. 23 N. Y. 69. If it appears from the will that the testator intended that his exec- utors should sell, though they are not absolutely directed so to do, the prop- erty will be regarded as converted into money. Phelps . Tyler, 49 Maine, 252 ; Matlock 0. Matlock, 5 Ind. 403 ; Nicoll V. Ogden, 29 Dl. 323 ; Sigourney V. Munn, 7 Conn. 11 ; Lang v. Waring, 25 Ala. 625 ; Andrews v. Brown, 21 Ala. 437 ; Piatt v. Oliver, 3 McLean, 27.] But see Randall v. Randall, 7 Sim. 271 ; Cook- son V. Cookson, 8 Sim. 529 ; Houghton v. Houghton, 11 Sim. 491. In those cases, Shadwell V. C, it seems, did not consider that the property had become partnership property. 3 Drew. 502, 503. (?) Rowley v. Adams, 7 Beav. 548. PT. 11. BK. 11.] EQUITABLE CONVERSION. 743 them. Thus the lands purchased by the guardian of an nature by trustees of infant with his personal estate will, in case of his death an infant : during his minority, be considered still as his personal property, (r) So where the trustees of an infant's estate having a considerable * sum of money in their hands, out of the profits of Kis estate, laid it out in a purchase of lands lying near the estate, with the con- sent of his guardian, and by the conveyance to the trustee, it was declared that they stood seised in trust for the infant, in case, when he came of age, he should agree to it ; the infant dying within age, the trustees were held accountable to the administra- tor of the infant for the sum laid out, and his heir was declared to have no title to the land, (s) So where an executor in trust for an infant of a lease for ninety-nine years, determinable on three lives, on the lord's refusal to renew but for lives absolutely, complied with his requisition, and changed the years into lives ; on the infant's dying under twenty-one, this was held to be a trust for his administrator, and not for his heir, (f) Again, where the committee of a lunatic invested part of his personal estate in the purchase of lands in fee, it was bycom- '^ _ '■ ' mittee of a held that this should be taken as personal estate, and at lunatic: his death should not go to his heir-at-law. (m) So where the gran- tee of the custody of a lunatic, with the rents and profits of the estate purchased lands, the lunatic dying, the question was be- tween the heir and administrator, who should have the benefit of the purchase ; and the court was of opinion that the administra- tor should have it, and not the heir ; for if the money had not been laid out, it had been clear that the administrator should have had it ; and if laying out of the money would alter the case, then it would be in the power of the grantee of the custody to prefer the heir or the administrator as he pleased, (a;) But it must be observed, that in the management of a lunatic's estate, it is his benefit, solely, which is considered ; and, therefore, if it be clearly for his advantage that the nature * of one part of his estate (r) Gibson v. Scudamore, 1 Dick. 45. it was held that the surplus money arising (s) Lord Winchelsea v. Norcliffe, 1 from the sale was not converted, but re- Vern. 435 ; S. C. 2 Treem. 95. mained real estate, to be distributed as (t) Witter V. Witter, 3 P. Wms. 99. such according to the rules of dissent. (m) Awdleyu. Awdley, 2 Vern. 192. [So Lloyd w. Hart, 2 Penn. St. 473. See, ante, on the other hand where a sale was made 650, note {d^) ; post, 668, note (2).] under a decree of court, of the real estate (x) Lord Plymouth's case, 2 Freem. of a lunatic for the payment of his debts, 114. [667] [668] 744 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. n, BK. II. should be altered for the improvement of the other, such alterar tion will be directed by the court of chancery ; («/) and "when such alteration is made, there is no equity between the real and per- sonal representatives, at the lunatic's death, to have the nature of the property restored, (a) By stat. 16 & 17 Vict. c. 70, s. 116, certain provisions are made 16 & 17 for the sale or mortgage of the lunatic's property for Vict. c. 70. ^ebts, maintenance, and other purposes. And by sect. 119, on any moneys being so raised, " the person whose estate is sold, mortgaged, charged, or otherwise disposed of, and his heirs, next of kin, devisees, legatees, executors, administrators, and as- signs, shall have such and the like interest in the surplus remain- ing after the purposes for which the moneys have been raised shall have been answered, as he or they would have had in the estate if no sale, mortgage, charge, or other disposition thereof had been (y) Ex parte Phillips, 19 Ves. 123; Ex parte Bromfield, 3 Bro. C. C. 510; S. C. 1 Ves. jr. 453 ; Ex parte Tabbart, 6 Ves. 428. See Clarendon v. Barham, 1 Y. & Coll. C. C. 688, accord. (z) Oxendon v. Lord Crompton, 2 Ves. jr. 69 ; S. C. 4 Bro. C. C. 231 ; In re Leem- ing, 3 De G., F. & J. 43. [" The general rule is, that if land be sold for a specific purpose, the surplus money shall, as be- tween the heirs and next of kin, be con- sidered as land so far as to vest in the per- sons who would have been entitled to it had it remained unconverted. But, after it has so vested in the persons entitled, it is to be treated as money in his hands ; and in case of his subsequent death, goes to his personal representatives as personal estate. It cannot retain its original char- acter forever. It has no earmark by which it can be distinguished from the other personal estate with which it is mingled. To identify and follow it throughout an in- definite number of successions, would, in most cases, be absolutely impossible, and in all cases so inconvenient as to forbid the undertaking, unless required by the high necessities of justice. But the distribu- tion of the estate of a decedent among persons who never gave value for it, and its policy, involves no principle of justice, and stands entirely nninflaenced by its dic- tates. The necessity of a perfect conver- sion, at some period, being apparent, and neither justice nor policy requiring that a fiction should be substituted for the fact, the proper time for it is when the money has vested in the party entitled to it after the actual conversion. Grider v. M'Clay, 11 Serg. & R. 224; Biggert v. Biggert, 7 Watts, 563 ; Dyer v. Cornell, 4 Penn. St. 359. The rule stated by Chief Justice Tilghman, in Grider w. M'Clay, is, that • surplus money arising from the sales of land by order of the orphans' court, whether it belong to an infant, or feme covert, or male of full age, is to be consid- ered simply as money and nothing else.' The rule has the support of common sense, and is well sustained by authority. Every departure from it will lead to incon- venience, without advancing either general or individual justice." Lewis J. in'Pen- nell's Appeal, 20 Penn. St. 515 ; ante, 658, cases in note (h) ; Bogert v. Furman, 10 Paige, 496; Sweezey v. Willis, 1 Bradf. Sur. 495 ; Cox v. McBurney, 2 Sandf. 561 ; Horton v. McCoy, 47 N. Y. 21 ; Foreman V. Foreman, 7 Barb. 215 ; Sweezey o. Thayer, 1 Duer, 286; Davidson v. De who have no title to it, whatever, except Freest, 3 Sandf. Ch. 456 ; Hoey v. Kinney, that which is founded upon the law and 10 Abb. Pr. 400. ] PT. II. BK. II.J EQUITABLE CONVERSION. 745 made, and the surplus moneys shall be of the same nature and character as the estate sold, mortgaged, charged, or otherwise dis- posed of." In Ex parte Flamank, (a) Lord Cranworth V. C. held that money paid into court by a railway company for lafld Compul- taken under the lands clauses act (7 & 8 Vict. c. 18), ia„atio's° from a person who was in a state of mental imbecility, Janag""'^^'^ and who continued in that state till his death, but was clauses act. not the subject of a commission of lunacy, was not to be rein- vested in or considered as land, but to be paid to his executors ; for that the effect of the 7th section of the act was to make the contract as good as if he had been compos mentis. And his lord- ship distinguished the case from the Midland Counties Railway v. Oswin, (5) where Knight Bruce V. C. * had come to a contrary decision, inasmuch as his honor's decision turned on the express terms of the local act on which the case before him arose, (c) In pursuing the coi:i(iplicated inquiry, of what shall be accounted personal estate, it may be advisable to consider the sub- ^^at is r T J _ personal ject in the divisions employed by Godolphin and the estate. author of the Office of an Executor, viz, first to divide the effects of the deceased into things actually in his possession, and things not so, usually called choses in action ; and to subdivide the first class into chattels real, and chattels personal. (a) 1 Sim. N. S. 260. and Re Harrop's Estate, 3 Drew. 726, for (i) 1 Coll. 80. instances where money paid into court un- (c) See Cramer's case, 1 Sm. & G. 32, der certain local acts was treated as realty. [669] 746 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. H. BK. n. * CHAPTER THE FIRST. OP THK INTEREST OP THE EXBCUTOE OK ADMINISTEATOK IN THE CHATTELS EEAL OP THE DECEASED. SECTION I. The Executor's or Administrator'' s Might to Chattels Real, generally. The general rule is, that chattels real shall go to the exec- Whatare utor or administrator, and not to the heir. Chattels chattels real. real are such as concern or savor of the realty ; (a) or, in other words, they are chattel interests issuing out of, or an- nexed to, real estates. (6) Thus, while the military tenures sub- sisted, wardship in chivalry was accounted such an interest, and accrued to the executor or administrator, and not to the heir ; because it was in respect of a tenure of land or other heredita- ment, and was for years, viz, during the minority, or till marriage had. (c) If one be seised in his natural capacity of an advowson in gross, Nextpres- Or in fee appendant to a manor, and the church becomes entation yoid, the void turn is a chattel personal, like rent due, or church. any other fruit fallen ; and if the patron dies before he presents, the avoidance does not go to the heir, but to the execu- tor, (d) And the heir in tail shall not have a presentment * fallen (a) Co. Lit. 118 6. 109; Stephens v. Wall, Dyer, 282 b ; (b) 2 Bl. Com. 386. Earl of Lincoln's case, 1 Freem. 98 ; Co. (c) Godolphin, pt. 2, c.I3, s. 2 ; Wentw. Lit. 388 a ; Com. Dig. Esglise, H. 2 ; Wats. OfiF. Ex. 126, 14th ed. So a villain for C. L. 72, 4th ed. But if a king's tenant years (as by grant for a term from him by knight service in capite died after a va- that had the inheritance) was a chattel cancy, the heir within age, the king pre- real. lb. seuted by right of wardship. Co. Lit, (rf) F. N. B. 33, P.; The Queen & 388a. Archbishop of Canterbury's case, 4 Leo. [670] [671] CH. I. § I.] CHATTELS REAL. — CHUECH PRESENTATIONS. 747 in the life of the tenant in tail, but his executor, (e) Again, if the patron, whether a natural or politic person, grant the next presentation of a church before avoidance, to D., in this case, if D. dies, his executor shall have it as a chattel, and not the heir ; (/) for it is a chattel real, till a vacancy has happened, and afterwards the vacancy turns it into a chattel personal. (^) Nor will it differ the case, if the grant is to the grantee and Ms heirs ; for where the thing is a chattel, the word " heirs " cannot make it an inher- itance. (K) Likewise, if a man grants the two next presentations of a church, those are chattels, and if the grantee dies,- the execu- tor shall have them, and not the heir. (T) So of an advowson granted to one and his heirs for 100 years, (le) Again, if a church become void during the life of a husband, who is tenant by the curtesy, and he die before the church is filled, the husband's executor shall have the turn, and not the wife's heir, (t) And it is now settled that the executor has the same right, where a person seised of an advowson in a politic capacity dies during a vacancy. Thus, in a case in K. B., in error from the common pleas, it was held by Littledale, Holroyd, and Bayley JJ. (Lord Tenterden C.J. dissentiente), that where a prebendary, having an advowson of a rectory in right of his prebend, died while the church was vacant, his personal representative had the \ right of presentation for that turn ; and the judgment of the court of common pleas *was reversed, (m) This decision of the K. B. was afterwards affirmed in the house of lords, (n) But if the incumbent of a church be also seised in fee of the advowson of the same church and dies, his heir, and not his exec- utor, shall present ; for although the advowson does not descend to the heir till after the death of the ancestor, and by his death the church is become void (so that the presentation in this case may be said to be severed from the advowson before it descends to the heir, and to be vested in the executor), yet both the descent to the heir and this fall of the avoidance happened all in one instant ; (e) F. N. B. 34 ; Godolph. pt. 2, c. 13, (k) Wentw. Off. Ex. 136, 14th ed. s. 6. (/) Wats. C. L. 71, 4th ed. (/) Godolph. pt. 2, c. 13, s. 3 ; admitted (m) Eennell v. Bishop of Lincoln, 7 B. by Lord Tenterden, in Rennell w. Bishop & C. 113. In the common pleas, Gaselee of Lincoln, 7 B. & C. 193. J. dissented from Burrough and Park JJ. (g) Wentw. Off. Ex. 131, 132, 14th ed. and Best C. J. See 3 Bing. 223. (A) Bro. Chattels, pi. 6. (n) 8 Bing. 490 ; 1 CI. & Fin. 527. (i) Bro. Chattels, pi. 20. [672] 748 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. and where two titles concur, the elder right shall be preferred, (o) In the case of an advowson of a donative benefice where A. B., being seised, the church in his lifetime became void; then A. B. died, and the executors brought a quare impedit ; after two argu- ments in C. B., the whole court was clearly of opinion that the right of donation descended to the heir of A. B., and that the executor had no title, as he would have had, if it had been a pre- sentative benefice, (jp) So if the parson of a church ought to present to a vicarage, if the vicarage becomes void during the vacancy of the parsonage, the patron of the parsonage, and not the executor of the deceased parson, shall present, (^q) And in the case of a bishop, the void turn of a church, the advowson whereof belongs to him in right of his bishopric, by his death does * not go to his executor, although the church was void when the bishop died, but the king shall present by reason of his custody of the temporalities, (r) If the testator presents, and (his clerk not being admitted be- fore his death) then his executors present their clerk, the ordinary is at his election, which clerk he will receive, (s) Every bishop, whether created or translated, is bound immedi- The op- ately after confirmation, to make a legal conveyance to anThWshop *he archbishop of the next avoidance of one such dignity executors*' °^ benefice belonging to his see as the said archbishop &<:• shall choose or name, which is, therefore, commonly called an option, (t^ And if the archbishop dies before the avoidance (o) Holt V. Bishop of Winchester, 3 Lev. Wats. C. L. 73, 4th ed. But where a ten- 47. Where a parson, who had the inherit- ant held land of a bishop, in right of his ance of the advowson, devised that his ex- bishopric, by knight's service, and the ten- ecutor should present after his decease, ant died, the heir being within age, and and devised the inheritance to another in the bishop, either before or after seiznre, fee, it was held that this was a good devise died; neither the king nor the successor of of the next avoidance. Pynchyn v. Har- the bishop was entitled to the wardship, ris, Cro. Jac. 371. but his executor. Co. Lit. 90 a; and see (p) Repington v. Tamworth School, 2 Mr. Hargrave's note, upon this difference. Wills. 150. No reason is assjgned, in the (s) Smallwood v. Bishop of Lichfield, report of this case, for the distinction I Leon. 205 ; S. C. Savil. 95,118; Wats, taken, nor is it easy to suggest one. See C. L. 72, 225, 4th ed. the remarks of the judges in Rennell v. (t) 1 Gibbs. Cod. 115; 1 Burn E. L. Bishop of Lincoln, 7 B. & C. 113. 239, 8th ed. But it has been considered [q) 2 Roll; Abr. 346, tit. Presentment, that such assignments have been rendered F. pi. 4 ; 1 Burn E. L. 139, 8th ed. illegal by reason of the stat. 3 & 4 Vict. (r) 2 EoU. Abr. Presentment, 345, E. c. 113, s. 42, and that the archbishop's op- pl. 4 ; Co. Lit. 90 a ; Co. Lit. 388 a ; tions have thus been destroyed. [673] CH. I. § I.] CHATTELS EEAL. — LEASES FOR YEARS. 749 shall happen, the right of filling up the vacancy shall go to his executors or administrators, (u) All leases and terms of lands, tenement's and hereditaments, of a chattel quality, are chattels real, and will go to the ex- Estates for ecutor or administrator; but he has no interest in the ''^"^' freehold terms or leases, (a;) The general rule for distinguishing these two kinds is, that all interests for a shorter period than a life, or, more properly speaking, all interests for a definite space of time, measured by years, months, or * days are deemed chattel interests ; in other words, testamentary, and of the nature, for the purposes of succession, of other chattels or personal property. («/) Thus, not only on a term of one's own life, or for the life of an- other, is deemed a freehold ; but if a man grant an estate to a woman dum sola fuit, or durante viduitate, or quamdiu se bene gesserit, or to a man and woman during the coverture, or as long as the grantee shall dwell in such a house, or so long as he pays 101., &c. or until the grantee be promoted to a benefice, or for any like uncertain time ; in all these cases the lessee has an estate of freehold in judgment of law ; (3) while a lease for 10,000 years is not a freehold, but chattel interest. If an estate be limited to A. B. and his assigns during C. D.'s life, it is a freehold interest ; but if it be limited to A. Term for a B. and his assigns for a certain number of years, if C. D. number of shall so long live, it is a chattel, and will go to his ex- ^''^g™ jon-' ecutors or administrators. ^'''^^■ If a lessee for years of a carve of land grants to another a rent out of the said carve for the life of the grantee, that is a good (m) Potter V. Chapman, Ambl. 98 ; 1 mainder, or reversion, in corporeal or in- Burn E, L. 240, 8th ed. corporeal hereditaments held for life or for {x) [Lewis V. Eingo, 3 A. K. Marsh_ some uncertain interest, created by will 247; Murdock v. Eatcliff, 7 Ohio, 119; or by some mode of conveyance, capable Payne v. Harris, 3 Strobh. Eq. 39.] Es- of transferring an estate of freehold, which tates for years have one quality of real may last the life of the devisee or grantee property, viz, immobility, but want the or of some other person.'' See Watk. on other, viz, a sufficient legal indeterminate Conveyancing, by Morley &, Coote, 63. duration, the utmost period for which they [z) Co. Lit. 42 a. So where A. leases can last being fixed and determined. 2 to B. till A. makes J. S. baily of his Bl. Com. 386. manor; adjudged a freehold. lb. Hal. {y) 1 Preston on Estates, 203. On the MSS. See, also, Beeson, App., Burton, other hand, an estate of freehold may be Resp. 12 C. B. 647. defined to be " an estate in possession, re- [674] 750 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. lease for life made] by lessee for years : lease for ^_ A.'s life, and if he die within a certain time to his executor for the rest of that term. charge during the term, if the grantee so long live ; but in such a case the grantee hath but a chattel, (a) A. made a lease to B. for life by indenture, in which was a proviso, that if the lessee died before the end of sixty years then next ensuing, his executor should have and enjoy, as in the right and title of the lessee, for term of so many of the years as amounted to the whole num- ber of sixty, so that the * commencement of the said sixty shall be accounted from the date of the said indenture. The lessee made two executors, and died. One of them entered into the land. And the opinion of the court was, that no lease for years was made by this proviso in the lease, nor by remainder in his executor ; because nothing of the said term was limited to the lessee for life as remainder to him and his executors. (6) , There are certain interests in land, which although of an uncer- Estates by tain duration, and, therefore, in that respect participat- ple, statute ™^S °^ *^® nature of freehold, are nevertheless chattels. ™nTby"'' These are interests created by the statute law, and are elegit. securities for the payment of debts, namely, estates by statute merchant, statute staple, and by elegit, the possessors of which are said to hold their lands as freehold, but whose interests are really chattel, and will go to their executors and administra- tors, (c) Since an estate of freehold or inheritance cannot be derived out of a term for years, no words of limitation can alter the nature of the latter with respect to the purposes of suc- cession. Thus if a lease for years be made to a man and his heirs, it shall not go to his heirs but his execu- tors, (^d} A lease for ^° ^^ ^ lease for years be made to a bishop, parson or years made other sole Corporation, and his successors, yet it will go lO u sole - n t ^ corpora- to the executors of the lessee ; because a term for years his succes- being a chattel, the law allows none but personal repre- A iease for years made to one and his heirs shall go to the ex- ecutor of the dev- isee; (a) Butt's case, 7 Co. 23 a; SafFery v. Elgood, 1 Ad. &E1. 191. (6) Graven or v. Parker, Anders. 19; S. C. cited in Lloyd v. Wilkinson, Moore, 480 ; sed quaere, and see ante, 660, 661. (c) Co. Lit. 42 a; 2 Saund. 68 /, note to Underbill v. Devereux ; "Watk. on Conveyancing, by Morley & Coote, 63. [675] See, also, "Wentw. Off. Ex. 133-135, 14th cd. (d) Co. Lit. 46 6. So if a termor for years grant a rent out of the land to A. and his heirs, the same shall go to the ex- ecutor and not to the heir ; for being de- rived out of a chattel, It must be itself a mere chattel. Partus sequitur ventrem. Wentw. 136, 14tb ed. CH. I. § I.] CHATTELS REAL. — LEASES FOE YEARS. 751 sentatives to succeed thereto, nor can this mode of sue- ^"""s ^u £ro to his cession be altered by any Kmitation of the party, (e) executors: * Again, it is a principle of law, that a limitation of a personal personal estate to one in tail vests the whole in him. (e^) lease for Therefore, where a term for years is devised to one and vised' to a the heirs of his body, or to the heirs male of his body, SiaUgoto the term, at the death of the devisee, shall go to the ex- ^9^'^'"'" ecutor and not to the heir. (/) * So if a lease for years is given to A. and the heirs male of his body, and for default of such issue, to B. and the heirs male of his body, these words give to A. the absolute property in the whole estate and interest transmissible to his personal representatives. (^) In a modern case, the testator devised his real estates to A. for (e) Co. Lit. 46 b; Fulwood's case, 4 Co. 65 a. See DoUen 0. Batt, 4 C. B. N. S. 760, as to what reservations make a freehold, and what a chattel lease, (el) [See post, 1106, and note (w).] (/) Leonard Lovie's case, 10 Co. 87 6; Wentw. Off. Ex. 136, Uth ed.; 1 Brest, on Estates, 32. See post, yit. in. bk. in. ch. II. § II. (B.). In Leonard Lovie's case. Coke C. J. took a difference between a de- vise of a term in gross, and a devise of a term de novo out of the inheritance, viz, that in the former case the term shall vest absolutely in the devisee, and if he die without issue, shall go to his executors, but that in the latter case it shall cease on failure of issue. Lord Keeper Einch, in Burgis t. Burgis, 1 Mod. 115, said he did deny Lord Coke's opinion in Leonard Lovie's case, which saith, that in case of a lease settled to one and the heirs male of his body, when he dies, the estate is determined. And Lord Nottingham, in the Duke of Norfolk's case, 3 Cas. in Chanc. 30, said it was Lord Coke's error in Leonard Lovie's case to say, that if a term be devised to one and the heirs male of his body, it shall go to him or his ex- ecutors no longer than he shall have heirs male of his body ; for these words are not a limitation of the time, but an absolute disposition of the term. So Fearne, Cont. Kem. 463, observes, that the decision in the Duke of Norfolk's case seems to con- travene the opinion of Lord Coke. That, however, does not appear to be so ; for the decision in that case (vide 2 Swanst. 454), viz, that if a terra de novo be limited it trust for H. in tail, but if T. die with- out issue male in the life of H. then H. to have no further benefit, but the benefit thereof to go to C. in tail, &c. the limita- tion to C. is good, is perfectly consistent with Lord Coke's doctrine. Mr. Serjeant Hill, in a note in his copy of Viner, in Lincoln's Inn Library, Devise, B. b, pi. 5, after observing, that if one possessed of a terra of years devises it to one and the heirs male of his body, it had been held, that on the death of the devisee the term would go to the executors, and not to the heir, and such a decision was good law, says, " it is very different from the case in 10 Co. in which Lord Coke gave his opin- ion, though it is confounded therewith by the authorities cited by Viner, from Mod. and Sel. Cases in Chancery, which, however, are nothing to the purpose for which they are cited, being cited in oppo- sition to the opinion of Lord Coke in 10 Co. which was mistaken by Lord Einch, or more probably by the reporters." Note (F) by Mr. Eraser to 10 Co. 87 a. Vide Preston on Estates, p. 33 ; Touchstone, 445, ed. Preston. (g) Leventhorpe v. Ashbre, 1 Roll. Abr. 611, L. pi. 1; Donn v. Penny, 1 Meriv. 20. [676] [677] 752 OP THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. life, without impeachment, &c. with remainder to trustees to pre- serve contingent remainders, with remainder to the heirs of the body of A. By codicil, reciting the after purchase of a leasehold estate, he devised the same to the trustees named in his will, " for such estates and estates and in such manner and form " as his real estates were given by will. It was held that A., taking an estate tail in the real estates under the will, was nevertheless entitled to the absolute interest in the leasehold bequeathed by the codi- cil. (K) With respect to the limitation of real estates, where an estate A lease for for life is given to the ancestor, followed by a subse- given to quent limitation to his heirs general or special, the sub- and after-' sequent limitation, as in the case just stated, vests in hi"heirs ^^ ancestor, and the heir takes not by purchase. So in general or the limitation of leasehold estates, generally speaking, will go to if a term for years be devised to one for life, and after- Ills CX6CU~ tors. wards to the heirs of his body, these words are words of limitation, and the whole vests in the first taker, and is transmis- ■ sible to his executor. Thus, in Theebridge v. Kilburne, (i) where a term was limited in trust for S. for life, and immediately from and after her decease, to the heirs of the body of S. lawfully to be begotten, if the term should so long endure, and in default of such issue, then to B. ; Lord Hardwicke expressed himself of opinion that the whole term vested in S. Again, in Garth v. Baldwyn, (Jc) where real and per- sonal estates were devised to trustees, in trust to pay the profits to G. * during his life, and afterwards to pay the same to the heirs of his body. Lord Hardwicke held, that the personal estate vested absolutely in G. hj this limitation. So in Lord Verulam v. Bathurst, (T) where a testatrix bequeathed a leasehold house and 3,000?. stock to trustees, in trust to permit her daughter to receive the rents and interest for life for her separate use, and, from and immediately after her daughter's decease, she gave the rents and interest to the heirs of the body of the daughter lawfully begotten, but in case her daughter should happen to die without any lawful issue living at the time of her decease, she gave the house and the stock over ; it was held by Sir L. Shadwell V. C. that the daugh- ter took the property absolutely. (h) Brouncker v. Bagot, 1 Meriv. 271. (k) 2 Ves. sen. 646. (0 2 Ves. sen. 233. [1) 13 Sim. 374. [678] CH. I. § I.] CHATTELS REAL. — LEASES FOR YEARS. 763 However, if there appears any other circumstance or clause in the will, to show the intention that these words should be words of purchase, and not words of limitation, then it seems the ances- tor takes for life only, and his heir will take by purchase to the exclusion of his executor, (m) The chattels real which go to the executor or administrator are not confined to terms or leases of lands, but extend to Leases of chattel interests in incorporeal hereditaments, such as JfereSto-*' leases for years of commons, tithes, fairs, markets, prof- >»ents. its of leets, corodies for years, and the like, (n) In the case of a tenancy from year to year as long as both par- ties please, since the death either of the lessor or lessee _ ^ , , . , , . Estate of does not determine it, the interest of the tenant is trans- tenant missible to his executor or administrator, (o) Therefore to year due notice to quit must be given to the latter before the fxecutor, lessor or his representative can recover in ejectment ; (p) and the * executor or administrator of the lessee may maintain ejectment; and it was held no objection that the demise in the declaration was stated to be" for seven years. Qq) So where W. H., being tenant from year to year to Lady H., died, leaving his widow in possession ; and J. H. some time afterwards took out administration to the deceased, but the widow continued in pos- session, paying rent to Lady H. with the knowledge of J. H., who never objected to such payment or made any demand of rent ; it was held, that there was no evidence of a determination of the tenancy from year to year by operation of law, and that the ad- ministrator was entitled to recover possession from the widow, (r) The title accrued to the crown upon attainder of felony, where the party held not of the king, viz, the annum diem et vastum, (m) See Fearne, Cont. Rem. 490 et serred on the widow, who remained in seq. 7th ed. ; Doe o. Lyde, 1 T. R. 393 ; possession, it was held by Littledale J. Knight V. EUis, 2 Bro. C. C. 570 ; Ex that the landlord might recover in eject- parte Sterne, 6 Ves. 156; pos<, pt. III. bk. ment, unless it were shown that some III. ch. II. § II. other person, and not the widow, was the (n) Wentw. Off. Ex. 131, 14th ed. ; Go- executor or administrator of the tenant; dolph. pt. 2, c. 13, s. 3. and that it was not incumbent on the (o) Doe V. Porter, 3 T. R. 13 ; James landlord to show that the widow was V. Dean, 11 Ves. 393 ; S. P. S. C. 15 Ves. either executrix or administratrix. Rees 241. w. Perrot, 4 C. & P. 230. ip) Parker v. Constable, 3 Wils. 25. (?) 3 T. E. 13. Bnt where a tenant from year to year (r) Doe ». Wood, 14 M. & W. 682. died, and a regular notice to quit was VOL. I. 48 [679] 754 OF THE QUANTITY OF AN EXKCUTOR'S ESTATE. [PT. II. BK. II. Anrmm diem et vastum that is, power not only to take the profits for a year, bat to waste and demolish houses, and to extirpate fxecutors and eradicate woods and trees, is but a chattel ; and therefore, though granted to one and his heirs by the king, yet shall go to the executor and not to the heir, (s) If a lease be made to several for a term of years, and one of the joint tenants dies, his interest accrues to the survivors, and his executors or administrators shall take none, (t) It may be advisable here to remark, that even when a term for years is specifically devised, it will, in the first instance, vest in the executor, by virtue of his office, for the usual purposes to which the testator's assets shall be applied, * and the legatee has no right to enter without the execu- tor's special assent, (m) If the testator had a term for years, this vests in the executor or he cannot administrator, and he cannot refuse it though it be worth nothing ; for the executorship or administratorship is en- tire, and must be renounced" in toto, or not at all. (x) Generally speaking, the courts of equity follow the rules of law in their construction of equitable interests ; and, consequently, the beneficial interests in a term, where the person entitled to it has no higher interest in the estate, is treated as a chattel interest, and is transmissible to the personal representatives in the same manner as the legal estate. There is. Terms at- however, a particular sort of term, usually called a " Term the inher-° attendant upon the inheritance," the beneficial interest in itance. which is regarded in equity in a peculiar way ; and con- sidered as completely consolidated with the freehold and inherit- ance, so as to follow the fee in all the various modifications and charges to which it may be subjected by the acts of law or of the owner. («/) The consequence is, that this interest is not looked of a grantee. Leases held in joint ten- ancy do not pass to the execu- tor, &c. Terms for years vest m the ex- ecutor though specifically devised : waive a lease though it be worth nothing. Equitable interests in terms. (s) Wentw. Off. Ex. 132, s. 36, 14th ed. ; Godolph. pt. 2, t. 13, s. 5. («) Co. Lit. 182 a. See ante, 650 et seq. («) See infra, pt. iii. bk. iii. ch. iv. §111. (x) Billinghurst v. Spearman, 1 Salk. 297 ; Bolton v. Canham {alias Boulton v. Canon), PoUexf. 125; S. C. 1 Ventr. 271 ; 1 Freem. 337 ; Com. Dig. Adminis. B. 10; [680] Ackland v. Pring, 2 M. & 6r. 937. As to his liability to pay the rent and perform the covenants of his lease, notwithstand- ing he has no assets, see post, pt. iv. bk. ii. ch. I. § II. (y) See an excellent note upon this sub- ject by Messrs. Morley & Coote, in Watk. Convey. 45 et seq. CH. I. § I.] CHATTELS EEAt. — ESTATES PUR AUTEE VIE. 755 upon in equity as a chattel ; it is not assets in the hands of the executor or administrator, nor was it formerly liable to the simple contract debts of the deceased, but is, together with the fee, real assets. This subject will be pursued in the proper stage of this treatise. (2) By the common law, if lands had been limited to A. for the life of B., and A. had died in the lifetime of B., an estate arose by general occupancy ; for as the lands could not taiespur go * to the heir for want of words of inheritance, nor to g" [0 exec- the executor or administrator in respect of the estate be- "'"''' '^"^ ing freehold, there is no legal owner ; wherefore the law gave it to the first person who could enter ; and in the hands of such gen- eral occupant, the estate was not subject to the debts of the grantee pur autre vie. (a) If, however, the estate was limited to A. and his heirs during the lifetime of B., and A. died in B.'s lifetime, the heir was held to be entitled, not as heir, (5) but as special occu- pant. In like manner, if the estate was limited to A. and his ex- ecutors and administrators during the life of B., the more estab- lished opinion (although contrary to some high authority) appears to be, that the executors and administrators were entitled, as spe- cial occupants, provided the estate consisted of corporeal heredita- ments ; for although the heir might be a quasi special occupant of incorporeal, it seems clear that executors or administrators could not, nor could there be any general occupant, (e) It was held, generally, that an estate pur autre vie was *not (2) Post;pt. IV. bk. I. ch. I. real there cannot be a general occupant, (a) Eaggett v. Gierke, 1 Vei-n. 233. there was nothing to prevent special occu- (5) And therefore there no estate by pancy, and the learned judge proceeded to the curtesy issuing out of such an estate, say that he should have no hesitation in Stead V. Piatt, 18 Beav. 50. coming to the conclusion that an executor (c) The authorities on this subject will may be a special occupant of an incorpo- be found collected in Sugdeu on Powers, real hereditament. In the case before his p. 98, note, 4th ed., and in a note of honor, there was a limitation of an incor- Messrs. Morley & Coote, to their edition poreal hereditament to A., his heirs and of Watkins on Conveyancing, pp. 69, 70. assigns for lives, and A. conveyed it to See, also, Mr. Cox's note (D) to Low v. trustees, their executors and administra- Burron, 3 P. Wms. 264, and the observa- tors, upon contingencies which never hap- tions of Tindal C. J. in Bearpark v. Hutch- pened ; and it was held that he had parted inson, 7 Bing. 187; post, 683. However, with his whole estate at /ato, but with a in Northen v. Carnegie, 4 Drew. 587, Kin- resulting beneficial interest in him, inso- dersley V. C. expressed a clear opinion, much as he had limited on the contingen- that though where the property is incorpo- cies. [681] [682] 756 OF THE QUANTITY OF AN EXECUTOE'S ESTATE. [PT. II. BK. II. devisable. And in order to remedy this, and to prevent as well the inconvenience of scrambling for estates, and getting the first possession after the death of the grantee, as also for preserving and continuing the estate during the life of the cestui que vie, 29 Car. 2, it was enacted by the statute of frauds (29 Car. 2, c. 3, s. (repealed^ 12), that " from henceforth any estate pur autre vie shall as to wills ijg devisable by a vriU in vrriting, signed by the party made on or »' o' & j r j after Jan- go devising the same, or by some other person in his 1838, and presence, and by his express directions, attested and sub- mg^ after scribed in the presence of the devisor by three or more See'/os^r witnesses. And if no such devise thereof be made, the ®^^)- same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple. And in case there be no especial occupant thereof it shall go to the executors or adminis- trators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands." A question has arisen, viz, to whom the estate pur autre vie would go, if limited to a man, his heirs, executors, and adminis- trators ; and it was argued in favor of creditors generally, that the administrator was entitled ; but the court decided for the heir. (cZ) In another case, (e) where a tenant in fee conveyed lands to " H., her heirs and assigns, to hold to H. and her assigns during the life of G. ; " it was held that, after H.'s death, G., who was .her heir, was entitled to hold for his life as special occupant, and that the land did not pass to H.'s executors by the words in the habendum " to H. and her assigns," but that' these words must be disregarded, as being repugnant to the words in the premises. A question has been raised upon the construction of this statute, whether, if a rent be limited to a man, his executors of grantee and administrators, pur autre vie, and the grantee die, mTofar'enf living cestui que vie, and without having disposed of it in entitled: his lifetime, *it is not determined, notwithstanding the statute ; on the ground that it was intended to apply to those estates only in which executors or administrators, if named, might take as special occupants, and consequently not to incorporeal (d) Atkinson v. Baker, 4 T. R. 229. will. Carpenter u. Dunsmure, 3 El. & Bl. This was the case of a, deed. But the 918. [See ;)os<, 686, note (u).] same has also been held in the case of a (e) Doe i>. Steele, 4 Q. B. 663. [683] CH. I. § I.] CHATTELS EEAL. — ESTATES PUK AUTRE VIE. 757 hereditaments. (/) The better opinion appears to be, that the statute nevertheless gives the estate to the executors or adminis- trators ; (^) but to avoid the doubt, it has been usual to limit the rent to the grantee, his executors and assigns, for a certain num- ber of years, determinable on the death of the cestui que vie. Since these remarks were written, the court of common pleas has, it should seem, settled the point. In Bearpark v. Hutchin- son, (Ji) it was held by that court, after taking time to consider, that where a rent-charge was granted to a man during the life of another, without further words, and the grantee died during the life of the cestui que vie, the right to the rent-charge vested in the personal representative. And Tindal C. J. in delivering the judgment of the court, observed, with respect to the objection that the statute is limited to such estates as were capable, before ~ the statute, of occupancy, that " special occupant of rent " was a legal phrase, in common use and possessing a known meaning, before the statute, as descriptive, not of the person who should enter and occupy, but who should receive or take rent ; and that, therefore, the sounder construction of the second branch of the statute was to make it include the grantee of rent, since such estates were held in common parlance to be the subject of special occupancy. If the executor should die intestate, it may be doubted adminij- _ '' . trator de whether the estate would, under this statute, go to his bonis non administrator, or to the administrator de bonis non. («') * Under the above statute, the owner of an estate pur autre vie may devise it to several in succession, so as to designate partial dev- who shall occupy till cestui que vie dies, and to leave no '^tes%r'" interval or chasm. (^) But a question may arise, as to "''*™ '"^■' what shall become of the estate, if it be only partially devised, i. e. if it be devised for a period which expires before the estate pur autre vie ends. In Doe v. Robinson, (Z) the court of K. B. de- cided that the residue, whereof there is no devise, belongs to the representatives of the devisor. There the tenant of lands which (/) See Watk. on Convey. 73, note by (h) 7 Bing. 178; S. C. 4 M. & P. 848. Moi-ley & Coote. But see Northen v. Car- (i) Oldham v. Pickering, Carth. 376 ; negie, ante, 681, note (c). Kipley v. Watervvorth, 7 Ves. 445, 451. , ig) lb. See Cox's note (D) to Low v. (k) 3 P. Wms. 262. Burron, 3 P. Wms. 264 ; Kendal u. Mic- {I) 8 B. & C. 296 ; S. C. 2 Man. & Eyl. field, Barnard Chan. Ca. 46; Jenison v. 249. Lexington, 1 P. Wms. 555. [684] 758 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. had been granted " to him and his heirs," pur autre vie, devised them to A. B. without saying riiore, and A. B. died, living cestui que vie. And it was held that the heir of the devisor was en- devise of titled as special occupant, (m) In that case, the court estate"*'^ held that the words used were not sufficient to pass the without whole interest. If the devise had beeii of the whole words of . II. I! 1 1 • limitation, term itself, or of the whole interest of the devisor, to A. fur autre B., Without more, the representative of A. B. would have and'his™ l^^en entitled, notwithstanding no words of limitation •leirs. were used in the devise, (n) Whether the real or the personal representative would have been the person to take, is a point on which the authorities appear to be conflicting. In Doe V. Lewis, (o) where the estate had been demised to the grantee, his heirs and assigns, for lives, and he devised the premises, during the residue of the lease, to W. J. L., and his assigns, who died intestate, it was held by *the barons of the excheq- uer, that the estate did not go to the heir of W. J. L., but to his personal representative ; for that the devise by the original grantee defeated the title of his own heir as special occupant, and his devisee, W. J. L., took the estate to hold to him and his as- signs for the residue of the term ; and on the death of W. J. L., as there was no devise of the estate, nor special occupant thereof, it passed to the executors or administrators of W. J. L. ("the party that had the estate thereof ") within the express words of the statute of frauds. But in Wall v. Byrne, (p) where a lessee of lands which had been demised to him, his heirs and assigns, pur autre vie, devised all his real freehold and personal property to his wife and children, share and share alike ; and one of the children, who survived the testator, died intestate ; it was held by Sugden, lord chancellor of Ireland, that the heir-at-law of such child, and not his personal representative, was entitled to his share of the estate pur autre vie. And the learned judge said, (m) See Barron v. Barron, Cas. temp, the whole term ; and the authority of Napier, 393, note (a). It should seem that decision has Ijeen questioned. See that, in the case of a will, made after the Hayes's Convey. 3d ed. 162 a, 409 (62), year 1837, the whole interest would pass and the cases collected in Lyne on Leases, to the devisee under the words of the be- 13 et seq. quest used in Doe v. Kobinson, by reason (n) Williams v. Jekyl, 2 Ves. sen. 681. of the Stat. 1 Vict. c. 26, s. 28. (See pref- (o) 9 M. &"W". 662, cited by Lord Camp- ace.) And it has been doubted whether bell, 2 De G., F. & J. 595. the words used in boe v. Eobinson, were (p) 2 Jones & Lat. 118. not sufficient, even before the act, to pass [686] CH. I. § I.] CHATTELS REAL. — ESTATES PUR AUTEIE VIE. 759 that if ever a point was closed by decision, it was this : that where a man had an estate pur autre vie limited to him and his heirs, and devises that estate by words, which, without words of limi- tation, would pass the quasi inheritance, and the devisee dies intestate, the persons to take are the heirs, and not the personal representative of the devisee ; that the point was so decided in Ireland many years since, (^q) and that decision had been followed in England ; (r) and many opinions had been given upon it ; and he must, therefore, decline to hear the question argued. His lordship distinguished the case of Doe v. Lewis, on the ground that there the devise was to a man and his assigns, which, it was held, did not mean heirs; whereas in the case before him the de- vise was in general terms, atid in words which were sufficient to pass the entire interest of the testator under the lease to his dev- isees ; and that both law and good sense required that * the de- visee should take the same interest which he himself had. This distinction, however, does not appear to reconcile the two deci- sions satisfactorily, nor to afford any answer to the reasoning on which the court of exchequer proceeded. By stat. 1 Vict. c. 26, s. 3 (which, however, does not extend to any will made before January 1, 1838), estates pur -i^Yictc. autre vie may be disposed of by will, executed as re- ^6. quired by that act, whether there shall or shall not be any spe- cial occupant thereof, and of whatever tenure they shall be, and whether the same shall be a corporeal or incorporeal heredit- ament. («) And with respect to the estate, pur autre vie, of any deceased person, who shall not have died before the first day of January, 1838, the same statute (after repealing the above mentioned stat- utes of Car. 2 and Geo. 2), proceeds to enact, by sect. 6, that if no disposition shall be made thereof by will, and in case there shall be no special occupant thereof, it shall go (whether freehold or customary freehold, tenant right, customary or copyhold, (f) or of any other tenure, and whether a corporeal or incorporeal heredita- ment^, to the executor or administrator of tha party that had the estate thereof by virtue of the grant ; ajid if the same shall come (q) Blake v. Jones dem. Blake, 1 Hud. (s) See this enactment, verbatim, in pref- & Bro. 227, note. ace. (r) See Phillpotts v. James, 3 Dougl. (/) The statute of Oar. 2 does not ex- 425. tend to copyholds. Zouch v. Forse, 7 East, 186. [686] 760 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. Mortgages : to the executor or administrator, either by reason of special occu- pancy, or by virtue of this act, it shall be assets in his hands, and shall go in the same manner as the personal estate, (u) * With respect to the title of an executor or administrator of a mortgagee to the mortgaged property, it is obvious that, at law, this will depend on the fact whether the mortgage is in fee or for years ; in the former case the legal estate in the land will descend to the heir ; and in the latter, it will go, like any other term for years, to the executor. But with regard to the money due upon the mortgage, it is now fully established in equity, that, in every case, it is to be paid to the executor or ad- ministrator of the mortgagee ; by reason of the rule of equity that the satisfaction shall accrue to the fund that sustained the loss, (x) Doubts seem to have at one time existed on this head in cases in which the mortgage was in fee, and there was neither bond nor covenant for payment of the money ; or where the con- sideration for redemption was upon payment to the mortgagee, his heirs or executors ; (jf) but the law is now clearly settled, that considered whatever be the form of the mortgage, it will be part of personal*''^ the personal estate of the mortgagee. (2) Consequently, if the mortgage be in fee, the heir or devisee of the estate : (u) See this enactment, verbatim, post, pt. IV. bk. I. eh. I. In the construction of it, in a case where leasehold estates pur autre vie were devised in trust for A., his heirs, seqnals in right, executors, admin- istrators, and assigns, and A. survived the devisor, and being illegitimate, died with- out heirs and intestate, living the cestui que vie, it was held that the section ap- plied to equitable estates in land, and that the devised estates passed under it to A.'s administrator (the nominee of the crovfn). Reynolds v. Wright, 2 De G., F. & J. 590; 25 Beav. 100. [The assignee of a lessee for life holds an estate pur autre vie, which by statute in New York is a freehold during the assignee's life, but on his death, a chattel real and assets in the hands of his administrator. Mosher v. Youst, 33 Barb. 277.] (x) Thornbrough v. Baker, 1 Chanc. Cas. 283 ; S. C. 3 Swanst. 628 ; Winne V. Littleton, 2 Chanc. Cas. 51 ; S. C. 1 [687] Tern. 3 ; Canning v. Hicks, 2 Chanc. Cas. 187 ; Tabor v. Tabor, 3 Swanst. 636. (y) Coote on Movtg. 617, 2d ed. (2) lb. A Welsh mortgage is so consid- ered. Longuet v. Scawen, 1 Ves. sen. 406. [This is the general rule in the American States. Smith v. Dyer, 16 Mass. 18 ; Fay V. Cheney, 14 Pick. 399 ; Chase v. Lock- erman, 11 Gill & J. 185 ; Burton v. Hin- trager, 18 Iowa, 348. In Massachusetts the interest and title of a mortgagee of real estate or of an assignee of such mort- gagee vest at his decease, not in his heirs- at-law, but in his executor or adminis- trator. Before the mortgage is foreclosed, the mortgaged premises, and the debt se- cured thereby, are personal assets in the hands of the executor or administrator, to be administered and accounted for as such. The executor or administrator may take possession of the mortgaged premises by open and peaceable entry, or by action, or, under « mortgage with power of sale. CH. I. § I.J CHATTELS REAL. — MORTGAGES. 761 mortgagee will be a trustee of the land for the executor or admin- istrator ; and will, upon application, be directed to convey to him. (a) So if the land •becomes irredeemable in the hands of the heir, either by the length of possession, or by his purchasing the equity of redemption, or foreclosing, it will nevertheless belong to the personal representative, and the heir will be a trustee for him. (S) But the mortgagee may, as between his real and personal repre- sentative, by a manifest declaration of his intent, con- in what vert * the mortgage, as well as any other part of his per- ^^j^ *® sonal estate, into land, and make it pass accordingly, (c) t't'ed: So if a man purchase an estate, which afterwards proves to be subject to an equity of redemption, and dies, the money will belong to his heir, and not to his executor. Qd) Again, if mort- gage money be articled to be laid out in land and settled, the money will be bound by the articles, (e) So if the mortgagee in may sell the premises, in like manner as the deceased might have done if living. If the money is paid, the executor or admin- istrator is to receive it and discharge the mortgage. If possession has been taken by the deceased in his lifetime, or by the executor or administrator after his de- cease, the executor or administrator will be seised of the mortgaged premises in trust for the same persons, creditors or otherwise, who would be entitled to the personal estate. If not redeemed by the mortgagor, or sold by the executor or ad- ministrator for the payment of debts, it is to be assigned and distributed to the same persons and in the same proportions as if it had been part of the personal estate of the deceased. Genl. Sts. c. 96, §§ 9, 10, 14 ; Thomas J. in Taft v. Stevens, 3 Gray, 504, 505, 506; Smith v. Dyer, 16 JMass. 18; Richardson v. Hildreth, 8 Gush. 225 ; Boylston v. Carver, 4 Mass. 598, 610; Palmer v. Stevens, U Gush. 147, 150; Baldwin v. Tiramins, .3 Gray, 302, 303 ; Johnson ... Bartlett, 17 Pick. 477 ; Steel V. Steel, 4 Allen, 417 ; Sheldon v. Smith, 97 Mass. 34, 35 ; Collins v. Hopkins, 7 Iowa, 763 ; Haskins v. Hawkes, 108 Mass. 379. But see Webber v. Webber, 6 Greenl. 133. The executor or administrator of the mortgagee is the proper person to en- force the mortgage. Coffer v. Wells, Sax- ton Gh. Rep. 10 ; Gibson v. Bailey, 9 N. H. 168; Haskins a. Hawkes, 108 Mass. 379, 381. The executor or administrator of the mortgagee may assign the mortgage. Crooks V. Jewell, 31 Maine, 306; Clark u. Blackington, 110 Mass. 369, 374, 375 ; Ladd V. Wiggin, 35 N. H. 321, 329, 330; Burt V. Bicker, 6 Allen, 77 ; Neil a. New- bern, 1 Murph. 133 ; Shoalbred u. Dray- ton, 2 Desaus. 246 ; Clapp u. Beardsley, 1 Vt. 167 ; Williams o. Ely, 13 Wis. 1. One of two executors may assign a mort- gage belonging to the testator's estate. George v. Baker, 3 Allen, 326, note.] (a) Ellis V. Guavas, 2 Chanc. Cas. 50. (6) lb. ; Canning v. Hicks, 2 Chanc. Cas 187 ; Tabor «. Grover, 2 Vern. 367. But it should seem that if the heir chooses, he may pay off the mortgage money to the executor, and retain the land. Clerkson V. Bower, 2 Vern. 66. [See Demarest v. Wynkoop, 3 John. Ch. 129.] (c) Noys D. Mordaunt, 2 Vern. 581 ; S. C. Gilb. Eq. Rep. 2 Prec. Chanc. 265 ; ante, 658. (d) Cotton V. lies, 1 Vern. 271 ; Coote on Mortg. 618, 2d ed. (e) Lawrence v. Beverlej', cited 3 P. Wms. 217, in Lechmere v. Carlisle. [688] 762 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. his lifetime obtain a release of the equity of redemption, or obtain an absolute decree of foreclosure, and enter into possession, and after his death, the foreclosure shall be "opened, or the release set aside, the heir, and not the executor, will be entitled to the money. (/) If the mortgagee becomes entitled to the land in fee simple, as when a jf jfc descends upon, or is devised to him, a question may mortgage . r ' ' ■» j merges: arise between his heir and executors, whether the charge is to be considered as subsisting for the benefit of his personal representatives, or is merged for the benefit of the person taking the land. The role in these cases is, that if it be indifferent to the party in whom this union of interest arises, whether the charge be kept on foot, or not, it will be extinguished in equity upon the presumed intention, unless an act declaratory of a contrary inten- tion, and consequently repelling such presumption, be done by him. (^) * But if a purpose, beneficial to the owner, can be an- swered by keeping the charge on foot, as if he be an infant, so that the charge would be disposable by him, though the land would not ; (K) or a beneficial use might have been made of it against a subsequent incumbrancer, (i) or the other creditors of the person from whom the party derived the onerated estate ; (Ic) in these, and similar cases, equity will consider the charge as subsisting, notwithstanding that it may have been merged at law ; (Z) and (/) Lawrence v. Beverley, cited 3 P. (h) Thomas !;. Kemeys, 2 Vern. 348 ; "Wms. 217, in Lechmere v. Carlisle. S. C. 1 Eq. Cas. Abr. 269, pi. 9 ; Powell (g) 2 Powell Dev. 146, Jarman's ed. ; Dev. ubi supra. This was before the new Priocw. Gibson, 2 Eden, 115; Donisthorpe wills act, and while an infant might be- V. Porter, lb. 162; S. C. Ambl. 600; qneath personal estate. Seeanfc, 15. Compton u. Oxendon, 2 Ves. jun. 261 ; (i) Gwillira v. Holland, cited 2 Ves. Grice v. Shaw, 10 Hare, 76. When the jun. 263. owner of an estate has also a charge on it, (h) Forbes v. Moffat, 18 Ves. 384. and there is some intermediate charge or (I) Powell, Dev. ubi supra. See, also, estate between his own charge and his Lord Clarendon v. Barbara, 1 Y. & Coll. ownership in fee, it maybe reasonable to C. C. 688; Swabey v. Swabey, 15 Sim. say that, without .some special act, no pre- 106, 502 ; Faulkner v. Daniel, 3 Hare, sumption can be made of an intention to 217 ; Byam v. Sutton, 19 Beav. 556. [The merge the charge in fee ; for that might general rule is, that where the legal title by be against the interest of the owner by a mortgage becomes united with the equi- letting in the intermediate estate or in- table title, so that the owner has the whole cumbrance. But where the intermediate title, the mortgage is merged and extin- interest is created by 4ho act of the owner guished by the unity of possession. But himself, this reasoning has no application, if the owner of the legal and equitable Johnson t'. Webster, 4 DeG.,ltf.&G. 474, titles has an interest in keeping those 488, by Lord Cranworth. titles distinct, he has a right so to keep [689] CH. I. § i.] CHATTELS REAL. — LAND DEVISED TO PAY DEBTS. 763 title of ex- ecutor or mortgagor in ease of a mortgage with power of sale. the rule is adopted in favor of the creditors of the person in whom these interests centre, (m) Where a mortgage deed contains a power of sale, with a direc- tion that the surplus produce shall be paid to the mort- gagor, his executors or administrators, if a sale takes place in the lifetime of the mortgagor, the surplus is per- sonal estate ; but if after his death, it is real estate, as the equity of redemption descends to the heir-at-law. (n) At common law, where a man devises land to his executors for payment of his debts, or until his debts are paid, or till Devise of a particular sum shall be raised out of the rents or prof- '^"'i '° f^- . , 111 11. editors for its, the executors take thereby only a chattel interest, payment . , J. , . of debts. 2. e. an estate tor so many j^ears as are necessary to raise the sum required ; (o) and this interest determines when the rents or profits would have raised the sum, although the executors * may have misapplied them.(p) But by stat. 1 Vict. c. 26, s. 30, where any real estate (other than a presentation to a church), shall be devised to any trustee or executor, such devise [if the will be made on or after January 1, 1838] shall pass the fee simple or other the whole estate of the testator, unless a definite term of years, or an estate of freehold, shall thereby be given to him ex- pressly or by implication, (^q) them, and the mortgage will not be extin- guished. Wilde J. in Loud v. Lane, 8 Met. 518, 519 ; Evans v. Kimball, 1 Allen, 240, 242; Hunt v. Hunt, 14 Pick. 374; Gibson v. Crehore, 3 Pick. 475 ; 5 Pick. 150. See Brien v. Smith, 9 Watts & S. 78 ; Eichards v. Ayres, 1 Watts & S. 485 ; Moore v. Harrisburg Bank, 8 Watts, 138 ; Lockwood V. Sturdevant, 6 Conn, 373; Marshal] v. Wood, 5 Vt. 250 ; Smith u. Higbee, 12 Vt. 113.] (m) Powell V. Morgan, cited 2 Vern. 206 ; Powell Dev. ttbi supra. (n) Wright v. Rose, 2 Sim. & Stu. 323 ; Bourne v. Bourne, 2 Hare, 35 ; [Cox v. McBurney, 2 Sandf. 561 ; Sweezy u. Wil- lis, 1 Bradf. Sur. 495 ; Moses v. Murga- troyd, 1 John. Ch. 119; Bogert v. Furman, 10 Paige, 496. If land be sold on an ex- ecution against the deceased testator, the surplus is payable to the executor and not to the heir. Vincent v. Piatt, 5 Harr. (Del.) 164; Garlick v. Patterson, 1 Chevea (S. Car.), 27.] (o) Cordall's case, Cro. Eliz. 316 ; Cor- bet's case, 4 Co. 81 b ; Manning's case, 8 Co. 96 a; Co. Lit. 42 a; Hitchens v. Kitchens, 2 Vern. 404 ; Acklnnd v. Lut- ley, 9 Ad. & El. 879 ; Ackland v. Pring, 2 M. & Gr. 937. (p) Carter v. Barnadiston, 1 P. Wms. 509, 519 ; Ackland v. Lutley, 9 Ad. & El. 879. (q) See this enactment, verbatim, in preface ; and see, also, sect. 31, lb. [690] 764 OF THE QUANTITY OF AN EXECDTOR'S ESTATE. [PT. II. BE. II. SECTION 11. Right of Uxecutors and Administrators to Chattels Real, with Relation to Husband and Wife. Before quitting the inquiry as to the interest which executors and administrators have in the chattels real of the deceased, it is proper to consider the subject as it bears on the relation of husband and wife. It is therefore proposed to investigate, 1st, when the wife survives the rights of the executor or administra- tor of the husband to her chattels real ; 2d, when the husband survives the rights of the administrator of the wife to the same, ri htot the ■'•• "^^^ ^^^ gives a qualified interest to the husband husband's in the chattels real of which the wife is or may be pos- 6X6cutor &c. to the sessed during marriage, viz, an interest in his wife's teisMah* right, with a power of divesting her property during the if they re- coverture. (/•) If, therefore, he so disposes of his wife's statu quo, terms, or other chattels real, by a complete act in his Imvfit, lifetime, her right by survivorship will be defeated ; (s) entitled ^^ ^"^ ^^ ^^ leave them in * statu quo, and the wife be the and not her survivor, she wiU be entitled to them, to the exclusion of husband's executors: the executors or administrators of her husband, (t) It becomes, therefore, necessary to inquire what shall amount ■what *° such a disposition of the wife's chattels real by the amounts to husband, as will exclude her title by survivorship : and a dispoii- ' ^ ^ ^ ■*■ tion of the as the obiect of this treatise is merely to show what wife's chat- , . . teis real by interest the executor or administrator of the husband (r) 1 Roper Husband & Wife, 173, by (See, as to trusts for her separate use, post, Jacob. pt. II- bk. ii. ch. ii. § iii.) So the contin- (s) And since the same rule of property gent reversionary interest of the wife in must prevail in equity as in law, if the the trust of a term for years may be sold wife be entitled to a term for years, held by the husband; and the wife surviving in trust for her benefit, the assignment or will be bound by such sale though the alienation of it by her husband will bind husband dies before the contingency is her surviving him; Sir Edward Turner's determined or the reversion falls into pos- case, 1 Vein. 7 ; Bates u. Danby, 2 Atk. session. Donne u. Hart, 2 Russ. & M. 207 ; 1 Preston on Abstracts, 344 ; Bacon 360. Secws, where the interest cannot pos- Abr. Baron & Feme, C. 2 ; 1 Roper sibly vest during the coverture. Duberley Husband & Wife, 177, 2d ed. ; unless the v. Day, 16 Beav. 33; [Rogers v. Ancaster, husband, before marriage, consent to the 11 Ind. 200, and see Sale v. Saunders, 24 settlement of the term for her benefit. 1 Miss. 24.] Vern. 7; Draper's case, 2 Freem. 29; 1 (t) 1 Roper Husband & Wife, 173, 2d Eoper, 178 ; 1 Preston on Abstr. 343, 344. ed. [691] CH. I. § II.j CHATTELS REAL OF WIFE. 765 takes by the defeat of the wife's claim, the instances se- '^e hua- lected will be confined to cases where the question is be- to bar her tween her and the executor or administrator, and not sifrvivor- between her and an alienee. The general principle is, ^^'^'' that the transaction must be of a description to effect a complete alteration in the nature of the joint interest of the husband and wife in the wife's chattels real, (t^) The will of the husband cannot dispose of the chattels real of the wife, against her surviving him : for as that does not ° . . ° the hus- take effect till after his death, the law takes precedence, band's will do6s and vests the term in the wife immediately upon his de- not: cease, (zi) If husband and wife be ejected of a term which he effect of enjoyed in her right, and he commences an action of moraed-'* enjectment in Ms own name, and obtains judgment, the in^yg ^^^ recovery will change the wife's property in the term, "^™«.foy and vest it in the husband, (a;) term: * It seems that if there is a dispute between the husband, claim- ing a term of years in right of his wife, and another per- gg^^j ^f son, relative to the title, and they refer the matter to bisband's 1 . . 1 1 . 1^1 submitting arbitration, and an award is made of the term to the the title to hl^ W1I6 s husband, the property in it will be changed by the arbit- term to ar- rament, so as to amount to a reduction of the term into '"*'""'• possession, which will defeat the wife's right by survivorship. (?/) {fi) [See Adams v. Brackett, 5 Met. 280 ; Phelps v. Phelps, 20 Pick. 556 ; Hay- ward V. Hayward, 20 Pick. 517 ; Foster v. Fifield, 20 Pick. 67 ; Daniels v. Richard- son, 22 Pick. 565; Estate of Miller, 1 Ashm. 32.3 ; Siter's Accounts, 4 Eawle, 468 ; Hind's Estate, 5 Whart. 138 ; Pitts V. Curtis, 4 Ala. 350 ; Wade v. Grimes, 7 How. (Miss.) 425; 1 Dan. Ch. Pr. (4th Am. ed.) 115-121, and notes; 1 Chitty Contr. (llth Am. ed.) 226, and cases in notes ; 1 Chitty PI. (16th Am. ed.) 36, and cases in note (i) ; Dunn o. Sargent, 101 Mass. 336.] (u) Anon. Poph. 5; Co. Lit. 351 a; 2 Bl. Com. 434; Bacon Abr, Baron & Feme, C. 2; 1 Roper Husband & "Wife, 174, 2d ed. ; 1 Preston on Abstracts, 343. [A note and mortgage made to a husband and wife shall go to the wife, in case she survives him, and not to his administrator as assets. Draper v. Jackson, 16 Mass. 480; Burleigh u. Coffin, 22 N. H. 118; Hawkins v. Craig, 6 Monr. 254 ; Turner u. Davis, 1 B. Mon. 151.] (x) Co. Lit. 46 b ; Com. Dig. Baron & Feme, E. 2; Bacon Abr. tit. Baron & Feme, C. 2 ; but see Bret v. Cumberland, 1 Boll. Rep. 359 ; S. C. 3 Bulstr. 163, in which Coke C. J. says, " A man hath a term in right of his wife ; he is ousted of it, and brings his action, and recovers the same again, and hath his judgment; he shall have it in statu quo." See, also, note (6) to Co. Lit. 46 b, Hal. MSS. (y) 1 Roll. Abr. 245, Arbitrament, D. ; but see Mr. Roper's note, vol. i. 1 85, 2d ed., and Hunter v. Rice, 15 East, 100; [Scott [692] s 766 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. If the wife, at the time of her marriage, were a lessee for years, effect of the and her husband purchases or takes a lease of the lands husband taking a new lease of the land In which the wife has a term : effect of an alienation of wife's term by husband on a condition which is brolten and the land reentered : for both their lives, that act will amount to a disposi- tion of the term ; because, by the acceptance of the sec- ond lease, the term is surrendered by operation of law, which surrender the husband is enabled to make under his general authority to dispose of the wife's leases in posses- sion, (s) If the husband alone assign a term of which he is pos- sessed in right of his wife, subject to a condition, and enter for the condition broken during the coverture, the husband will be again possessed in right of his wife as before ; and the wife being the survivor may be en- titled, (a) But if the husband die before the condition broken, his execu- tors or administrators must enter for the breach of the condition, and will hold discharged of the title of the wife. (6) If the husband mortgages the wife's term, and by payment * of the money at the day, the estate of the mortgagee ceases, it seems that the interest of the wife in the term will not be affected, (c) If the money be not paid at the day, the estate of the mortgagee becomes absolute, and the alienation of the terra being complete at law, the wife's legal right, by survivorship, is defeated ; and if the equity of re- demption were reserved to the husband alone, it has been said that her right will also be defeated in equity, by analogy to the cases in which it has been held that she is bound by the husband's voluntary assignment of her equitable chattels real, (d) But if the equity of redemption were reserved to the husband and wife, she would be entitled to survivorship, (e) And unless his inten- effect of husband's mortgag- ing his wife's chat- tels real: V. Perley, 98 Mass. 511 ; Thorpe v. Eyre, 1 Ad. & El. 926, 932 ; 1 Chitty PI. (16th Am. ed.) 168.] (z) 2 Roll. Abr. Surrender, E. p. 495, pi. 8 ; Bacon Abr. Baron & Eeme, C. 2 ; and 1 Roper Husband & Wife, 183, 2d ed. (a) 1 Roll. Abr. 344, 1. 45-50 ; Bac. Abr. tit. Baron & Ferae, C. 2 ; 1 Prest. on Abstr. 345. (6) Co. Lit. 46 6; Bac. Abr. tit. Baron & Eeme, C. 2. [693] (c) Young V. Radford, Hob. 3 ; 1 Roper Husband & Wife, 184, Jacob's ed. (d) 1 Roper Husband & Wife, 184, Jacob's ed. ; 1 Prest. on Abstr. 345. The latter writer adds " sed qiuzre." (e) Pitt V. Pitt, 1 Turn. Chan. Rep. 180. In that case a feme sole made a mortgage of a leasehold house and afterwards mar- ried ; the mortgage was then transferred ; the husband joined in the transfer, and covenanted to pay the money ; and the equity of redemption was reserved to the CH. I. § II.J CHATTELS REAL OF WIFE. 767 tion to defeat her right can be collected from the particular in- struments of mortgage, it may be doubted whether it will be de- feated by the reservation of the equity of redemption to him alone ; for that this mere circumstance is not enough to rebut the ordinary presumption that nothing more is intended by the usual mortgage deed than that which is necessary to make the estate a security for the money advanced. (/) If in any case the husband, after the estate of the mortgagee has become absolute, pays the money, and takes an assignment to himself, the property will be altered, and the term will go to the executors of the husband, to the exclusion of the wife. (^) * The power which the law gives the husband to divest the whole interest of his wife in her chattels real, necessarily au- thorizes him to divest it partially. (A) If, therefore, husband the husband be possessed of a term for years in right of underlease his wife, and he alone grants an underlease for a portion ^ne'l term of the term, reserving rent, he becomes the actual owner, ^'"'y®'"'^: to the extent of the term so granted, and the rent will form part of his executor's estate ; (i) but the residue of the original term will belong to her, as undisposed of by her husband. (^) Whether the husband's agreement to make an underlease of his wife's term for years will produce the same eifect as an actual lease, has never been expressly decided. The husband's point was discussed in Druce v. Denison, (V) though it be- for an un- came unnecessary to decide it. But Lord Eldon (m) ^^ ^*^°' intimated an opinion that the agreement would be good against the wife, and that the rent would form part of the husband's ea- husband and wife, their executors, admin- Loftus's case, Cro. Eliz. 279 ; I Prest. on istrators, and assigns. It was held that Abstr. 344, 345. Had the husband and the wife's right by survivorship was not wife joined in the lease, the rent would affected. But on a bill by the wife to re- have been incident to the reversion, as deem the mortgage, the redemption was well after the death of the husband as decreed on the terms, that the husband's during his life, and would have belonged estate should stand in the place of the to the wife. I Prest. on Abstr. 345; 1 mortgagee, for sums paid by him out of Roper Husband & Wife, 174, 175, 2d ed. his property in reduction of the mortgage (Tc) Co. Lit. 46 b ; Sym's case ; Cro. debt. Eliz. 33 ; Loftus's case, lb. 279. See post, (/) Clark V. Burgh, 2 Coll. 221. pt. ii. bk. in. eh. i. § in. as to the party {g) 1 Prest. on Abstr. 346. entitled to arrears of rent reserved on a {h) Bac. Abr. tit. Baron & Feme, lease of the wife's estate. C. 2. (0 6 Ves. 385. (t) 6 Ves. 394, by Lord Eldou in Druce (m) 6 Ves. 394. V. Denison. See, also, Co. Lit. 46 b; [694] 768 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. tate. He observed that as to actual leases there was no doubt that, to the extent of the terms granted, the husband became owner ; as to the agreements for leases his apprehension was, that in a court of equity the husband was to be considered owner of those interests, and he compared it to an assignment of the \vife's choses in action, which, though conferring no legal title, is sup- ported in equity. («i^) On the case coming on again, his lordship said that he should wish a search to be made on the point, whether it had ever been decided that an agreement would or would not bind * the wife ; and if it would, whether the rent was to be paid to her or her husband. If that point was untouched by decision, he thought it would be found that the analogy to other cases would make out that an assignment in equity was to this purpose as good as an assignment at law, and he referred to Steed v. Cragh (n) as stating the principle. „ „. , 2. The rights of the administrator of the wife to her 2. Eights ° of wife's chattels real when her husband survives. If the hus- tor to her band do not alien them in her lifetime, and he survive real : ^ ' h.ev, the law gives them to him, at least all those of which those ^^ ^'^^ possession jure uxoris during the coverture, not ing'covtrt- ^® ^^^' administrator of his wife, but as a marital right, (o) lire go to No administration to her, therefore, need be taken out the hus- . _ ' hanijure by him for this purpose. ( p) Consequently, should the husband die without exer- cising his exclusive right of taking out administration to her, (9) her chattels real in possesssion will go to his administrator, and not to the administrator of his wife, (r) But to entitle the husband to the chattels real of the wife, which secus, of were not vested in his possession in her right in her life- those not . , i i • vested. time, he must make himself her representative, by be- (m>) [But see Putnam J. in Page v. (p) 1 Roll. Abr. Baron & Feme, H. Estes, 19 Pick. 271; Udall v. Kenney, 3 8; Wrotesley v. Adams, Plowd. 122; Cowen, 590; 1 Dan. Ch. Pr. (4th Am.ed.) Hauchet's case, Dyer, 251 a; Co. Lit. 90, note (4) ; Hartman v. Dowdel, 1 Rawle, 46 b ; lb. 351 a ; Wan v. LaUe, Gilb. Eq. 279 ; Siter's Accounts, 4 Rawle, 470 ; Rep. 234 ; Bedell v. Constable, Vaughan, Miller's Estate, 1 Ashm. 323.] 185, by Vaughan C. J. 2 Eq. Gas. Abr. (n) 9 Mod. 43 ; S. C. 2 Eq. Cas. Abr. 37. 138, pi. 4 ; 1 Roper, 173. And the same (0) Secus, as to a lease whereof the wife of an equitable term. Rex v. Holland, and another were joint tenants; for it Aleyn, 15, by RoUe; 1 Prest. on Abst. shall survive to her companion, inasmuch 343. as he has the elder title to that of the hua- (9) See ante, 409. band. Co. Lit. 185 6. (r) Doe v. Polgrean, 1 H.Bl. 535. [695] CH. I. § III.] CHATTELS REAL BY CONDITION. 769 coming her administrator. As if a feme sole be possessed of a chattel real, and be thereof dispossessed, and then take husband, and die before recovery of possession, this right will not survive to the husband, but go to the personal representative of the wife, (s) Therefore, if the husband die without obtaining letters of adminis- tration, the right will * not pass to his administrator, but to the administrator of his wife. (€) However, such administrator will be considered in equity as a trustee for the representative of the husband. (?*) If the husband be seised of an advowson in right of his wife, and the church become vacant during the coverture, the wife shall have the void presentation if she survive him, and the husband if he survive her, (x) even though, by reason of her not having issue, he be not tenant by the curtesy ; («/) but if the church fell vacant before coverture, the husband shall not have the turn ; (z) i. e. it may be considered, he shall not have it as a marital right ; but still it will go to him as her administrator, (a) It will be ob- served that the next presentations to vacant churches are not properly chattels real, but chattels personal, and, therefore, in strictness, do not belong to this part of the subject of the estate of an executor or administrator. SECTION III. Of the Estate of an Executor or Administrator in Chattels Real by Condition, Remainder, or Limitation. An executor or administrator may become entitled to chattels real by condition. As where a lease for years has been g^ ^.^^^j, granted by the testator, upon condition that if the grantee ''<"!• did not pay such a sum of money, or do other acts as the testator appointeth, &c. and the condition is not performed after the tes- tator's death, now is the chattel real come back to the executor. (5) (s) Co. Lit. 351 u.. wood, Dudley (Geo.), 7 i M'Kay w. Allen, \t) Ante, 411, 412. 6 Yerger, 44.] (u) Ante, 412 ; Cart v. Eees, 1 P. Wms, (x) Co. Lit. 351 6. 381, cited in Squib i;. Wyn ; Humphrey (y) Wats. C. L. 71, 72. u. BuIIen, 1 Atk. 458 ; S. C. 11 Vin. Abr. (z) Co. Lit. 351 b. 88; Elliott u. Collier, 3 Atk. 526; S. C. (a) See infra.^t. ii. bk. m. eh. i. § 1 Ve.s. sen. 15; 1 Wils. 168; [Weeks v. iii. Jewett, 45 N. H. 540, 541 ; Hayward v. (h) Wentw. Off. Ex. 181, 14th ed. Hayward, 20 Pick. 517; Earley v. Sher- voL. 1. 49 [696] 770 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. So where the condition is, * that the testator or his executors shall pay the money to avoid the grant, as where he mortgaged a lease for years and before the day limited for redemption he dies, his executor is entitled to redeem at the time and place appointed, (c) Likewise a chattel real may accrue to an executor or adminis- Br remain- trator by remainder. Thus a remainder in a term of der. 3'ears, though it never vested in the testator in possession, and though it continue a remainder, shall go to his executor. Where a lease for years is bequeathed by will to A. for life, and afterwards to B., who dies before A., although B. never had the term in possession, yet it shall devolve on his executor. (cZ) With respect to contingent and executory interests, it is estab- Contin- lished, that contingent and executory estates and possibil- fxecutory ^*'^®^ ™ chattels real, accompanied by an interest, are interests, transmissible to the personal representative of a person dying before the contingency upon which they depend takes effect, (e) Thus, in the case above put, where a lease for years is bequeathed to A. for life, and after his death to B. for the res- idue of the term, B. has only an executory interest during the life of A. ; but this interest is transmissible to B.'s executors or admin- istrators. (/) Lord Coke says that " if a man make a lease for life to one, Lease for the remainder to his executors for twenty-one years, the mainder to ^^^^'^ of years shall vest in him ; for even as ancestor and the execu- jjgij. are correlotiva as to inheritance Cas if an estate for tors 01 . ... lessee. life be made to A., the remainder to B. in tail, the re- mainder to the right heirs of A., the fee vested in A., as it had been limited to him and his heirs), even so are the testators and executors correlativa as to any chattel. And, therefore, if a * lease for life be made to the testator, the remainder to his executors for years, the chattel shall vest in the lessee himself, as well as if it had been limited to him and his executors. (^) And in accord- ance with this doctrine is the case of Sparke v. Sparke (40 & 41 Eliz.), in the common pleas, (A) where the lessor leased for eighty (c) Weutw. Off. Ex. 181, 14th ed. ; Tol- pet's case, 10 Co. 46 ; and see Mr. Eraser's ler, 164. notes in his edition of Colie's Reports; {d) Wentw. Off. Ex. 189, 14th ed. [Dunn v. Sargent, 101 Mass. 336, 338, (e) Fearne, 554 ; 2 Saund. 388 n, note and cases cited ; post, 889.] 1(9) to Purefoy 1). Eogers. See;)os«, pt. ii. (j) Co. Lit. 54 6. bk. II. ch. HI. (h) Cro. Eliz. 666 ; S. C. Owen, 125 ; (/) Manning's case, 8 Co. 95 j Lam- Hal, MS. note (4) to Co Lit. 54 6. [697] [698] CH. I. § III.] CHATTELS REAL BY REMAINDER. 771 years, if the lessee should live so long, remainder after his decease to the executors and assigns of the lessee for forty years ; and the whole court was of opinion that this term vested in the lessee, and should go to his executors or administrators as assigns in law. On the other hand, in a later case of Sparke v. Sparke, K. B. 43 Eliz. (i) (where the facts are stated to be that the lessor let the land to the lessee for ninety years, if he should live so long, and, further, by the same deed vult et concedit that, after the de- cease of the lessee, the said land should remain to the executors and assigns of the lessee for forty years), according to the report in Croke, although the court did not deliver any certain opinion, Popham J. said a stronger case had been adjudged, 17 Eliz., wherQ a lease was made to two for life, remainder to him who should survive of those two, and to his executors for forty years ; they both joined in a grant for this, yet the grant was merely void, because the term was not vested in any of them. And Gaudy J. seemed to incline, that this term did not vest in the intes- tate, but it was to be to the executor as a purchaser. And in the reports of the case in Moore (A) and Yelverton, (Z) it is said to have been adjudged that the lease never vested in the lessee, and therefore did not pass to his administrator, though it would have gone to his executor if he had made one, as a purchaser. So in Cranmer's case, (m} where the Archbishop Cranmer had made a feoffment to the use of himself for life, and after his decease, remainder for twenty * years to the use of his executors, and af- terwards the archbishop was attainted ; it was held that the re- mainder for years was not forfeited, because it was never vested in Cranmer in his lifetime. In the earlier case of Sparke v. Sparke, (w) Walmsley J. attempted to reconcile the two cases. The difference between them, he says, was, that in Cranmer's case it was limited by way of use, and that by the party himself ; so he shows himself his own intent, that it should not vest in himself but in his executor ; but in the present case the limitation was by a stranger wherein no intention appears, but that it should vest in the lessee himself. This distinction seems to be supported by two other cases, both of which are reported in Moore, (o) The first {{) Cro. Eliz. 840 ; S. C. Noy, 32. Leon. 5 ; 3 Leon. 20 ; Moore, 100 ; Bendl. {Ic) Mftore, 666. 113. (l) Yelv. 9. (n) Cro. Eliz. 666. (m) Dyer, 309 ; S. C. 1 And. 19 ; 2 (o) " This, though called a conceit in [699] 772 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. U. is Finch v. Fincli. (p) The case, on special verdict, appeared to be the following : Feme sole levied a fine to the use of herself for life, and after her death to the use of her executors for five years, with remainder over ; and then she married, and with her hus- band granted the term of five years to the plaintiff, and then she and her husband levied a fine sur conusance de droit tantum. The first question was, whether the use to the executors was good ; and the court agreed unanimously in the affirmative ; and that if the possession were not disturbed, it would arise accordingly. The second question was, whether the feme could grant it during her life, and they held not ; and they further held that it could not be forfeited. In the next place, they agreed that it might be extinguished by fine, and therefore, that the fine sur conusance de droit tantum had extinguished it. The other case is Reming- ton V. Savage, (g') where J. S. levied a * fine to the use of himself for life, remainder to his wife for life, remainder to his executors for years ; and then he levied a second fine to the same uses, omit- ting the estate for years ; it was held the term being in abeyance was extinguished, (r) But the application of this distinction will not reconcile the decision of Sparke v. Sparke, in C. B., with the subsequent one in K. B., nor some other contradictory authorities to be found in the older reports, (s) Perhaps the only point for which the case of Sparke v. Sparke, when in K. B., is really an authority, is, that where a lease is made for ninety-nine years, if the lessee lives so long, and if he dies within that term, remainder to his executors and assigns for forty years, in such case this term shall not vest in the lessee, but his executors are purchasers, because it is a conditional limitation, and a mere possibility to vest ; for there is a condition precedent that it shall not be a lease, unless he died within the term, which peradventure would not be, for he might survive the term, (t) Wentw. Oif. Ex. (189, 14th ed.), is the (?) Moore, 745. only way in which the judgment in Cran- (r) Chambers on Landlord & Tenant, mer's case can be reconciled to Co. Lit. 167. .'54 b and several other authorities; and (s) See Gravenor v. Parker, Anders, this conceit was strongly urged in the 19; S. C. Benloe, 74; Anon. 3 Leon. 32 ; argument of the case in 2 Leon. 6, 7." ante, 67.5. See, also, Wentworth's Off. MS. Serjeant Hill, in his copy of Viner, Ex. 189, 14th ed. in Lincoln's Inn Library, tit. Executors, B. (*) As the law is now established, the (p) Moore, 339 ; S. C. nom. Finch v. mere possibility that a life in being may Bodyll, 2 And. 91. endure for eighty years to come, does not [700] CH. I. § III.] CHATTELS EEAL BY REMAINDER. 773 This case was put by the court, and agreed upon, according to the report in Croke, (m) but their judgment on the principal case was not given; and in Yelverton and Moore, this case, which was merely a supposed one according to Croke, is reported as contain- ing the actual facts before the court ; and the report in Yelverton concludes by stating that the chief reason for their decision was, because the term to the executors is but a possibility. Since these remarks were sent to the press, the writer has had the good fortune to find some important MS. observations on the subject by Mr. Serjeant Hill, in his copy of * Viner, in Lincoln's Inn Library. They are appended to tit. Executors, vol. ii. p. 406, B. pi. 4, where the dictum of Anderson J. that the executors should take as purchasers, is stated, according to the report of Sparke v. Sparke, in Owen, p. 125, and are as follows : " This is hot law, and was improperly inserted by Viner ; for though the opinion in Owen, 125, was as here cited, yet the judgment in the principal case, which in effect is the same with that here put by Anderson, was contrary ; and Owen concludes the case in p. 126, thus : ' At last judgment was given, that the administrator should hold it (viz, the term) for forty years, as a thing vested in the tes- tator.' And Rolle, in several parts of his Abridgment, viz, 1 Rol. Abr. 916, Y. 3, 2 Rol. Abr. 47, pi. 6, 418, pi. 6, and Lord Coke, in 1 Inst. 54 5, cite the case agreeable to that judgment ; and Cro. Eliz. 666, reports the case to have been adjudged the same way, and is more full and clear than Owen ; for he states the question, and that all the justices delivered their opinion severally that the term vested in the intestate, and shall go to his executors as assigns in law, and not as a perquisite by themselves ; and, there- fore, Anderson must have changed the opinion he gave at another time before judgment. And yet afterwards in Cro. Eliz. 840, the same point between the same parties, in a different action and court, came again in question, and the court seemed to be of a different opinion ; but Croke says the court did not deliver any opinion certainly therein, because none was there to argue on the other part. Vid. Moore, 666, pi. 911, Yelv. 9, who both report the last case as of Mich. 44 & 45 Eliz. B. R., which was an action of debt; whereas Owen reports the case in ejectment, Mich. 40 & amount to a degree of uncertainty suffi- («) Cro. Eliz. 841. cient to constitute a contingent remainder. See Feame, 20 et seg. [701] 774 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. U. 41 Eliz. C. B. ; and in Co. Lit. 54 b, the case is cited as of Mich, 40 & 41 Eliz. in C. B. in trespass ; and in 2 Rol. Abr. 47, pi. 6, 418, pi. 6, the case is also cited as of Mich. 40 & 41 El. B., and all of them refer to the same roll, viz. Rot. 2215 ; so that there can be no doubt but the case in Cro. Eliz. 840, Moore, 666, Yelv. 9, is a later and a different * case from the former, though on the same point and between the said parties, and though adjudged contrary ; but qucere the law. In Yelverton, 9, it is admitted, that if the term had been limited to the executors for payment of debts, it would have vested in the testator. N. B. that Lord Coke and RoUe took the law to be agreeable to the first judgment, and take notice of the last, which it is extraordinary they should not have done, if it was adjudged as reported by Moore and Yelverton ; and in 1 Roll. Abr. 916, Y. 3, the case is referred to as of Tr. 43 Eliz., which is the same term when, as Croke, p. 840, reports the last case ; and yet Rolle there says it was admitted that the adminis- trator should have the term within the intent of the grant, which seems directly contrary in substance to what is said to have been agreed in Cro. Eliz. 841. As to the report of the case in Noy, 32, it is short, and of Tr. 48 El. ; and the point does not there ap- pear. On the whole the difference seems to be this : that if a lease be made for life or years, with a remainder to the executors of the lessee, it shall be a vested interest in the lessee, and conse- quently, if he dies intestate, shall go to his administrator ; but if there be a lease for ninety-nine years, if the lessee live so long, with a proviso, that if he die within the term, that it should be to his executors for forty years, this last term shall not vest in the lessee, but in his executors by purchase ; because it is a conditional limitation, and a mere possibility to vest ; for this is the point agreed in Cro. Eliz. 841. Qucere temew, whether it would not now be considered as more than a possibility, and see I?earne, 16, 17." Adminis- In these cases it was several times laid down, that if noUakTas ^ remainder be limited to a man's executors and assigns, assignee by j^g purchasers, there his administrator cannot take as purchase. _^ ' assignee, (x) (x) Owen, 125 ; Cro. Eliz. 840, 841 [702] CH, II. § I.] OF CHATTELS ANIMATE. 776 * CHAPTER THE SECOND. OP THE ESTATE OP AN EXECUTOK OE ADMINISTKATOE IN THE CHATTELS PERSONAL OP THE DECEASED IN POSSESSION. Chattels personal are, properly and strictly speaking, things movable ; which may be annexed to, or attendant on, the person of the owner, and carried about with him from one part of the world to another. Such are animals, household stuff. What are chattels money, jewels, corn, garments, and evei-ything else that personal. can be properly put in motion, and transferred from place to place, (a) All these, and other things of the same nature, gen- erally speaking, belong to the estate of the executor or adminis- trator. It is proposed to consider this subject in the usual divisions. 1. Into chattels animate. 2. Chattels vegetable. 3. Chattels in- animate. SECTION I. Of the Ustate of an Executor or Administrator in Chattels Animate. Chattels animate may be subdivided into such as are domestic and such as -Av&ferce naturce. In such as are of a nature somitce tame and domestic (as horses, kine, sheep, poultry, and the like), a man may have an absolute property, and they are therefore capable of being transmitted, like any other personal chattel, to his executor or administrator. Also hounds, grey- hounds, and spaniels and the like, as they may be valuable, and may serve not only for delight but profit, shall go to the executors or administrators. (5) In * those of a wild nature, i. e. Ferce such as are usually found at liberty and wandering at {a) 2 Bl. Com. 387, 388. that hawks and hounds shall go to the (6) 4 Burn E. L. 297. It is said, in- heir with the estate. But it seems clear deed, in Swinburne, pt. 7, s. 10, pi. 8, p. at this day, that they would go to the 929, 7 th ed., and in Koy's Maxims, p. 107, executor or administrator as chattels per- [703] [704] 776 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. large, generally speaking, a man can have no property transmis* sible to his representatives. (. Poole, Gouldsb. 146, by sion. So if tenant for life sows the land, Popham and Fenner. [717] 788 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. in that case every such incumbent may make his testament of all the profits of the corn growing upon the said glebe so manured and sown. (S) If the successor be inducted before the severance of the emble- ments from the ground, the successor shall have the tithe thereof ; for although the executor represents the person of the testator, yet he cannot represent him as parson, inasmuch as another is inducted, (c) Otherwise, if the parson dies after severance from the ground, and before the corn is carried off. (cZ) If the husband sows the ground, and dies, and the heir assigns the land sown to his wife for her dower, she shall have and her ex- the crop, and not the executors of the husband ; for she wheTek- shall be in de optimd poasessione viri, above the title of embfe-*" tlie executor. (e) It was with reference to this especial ments. * privilege of a dowress, that at common law she could not, according to the more general opinion, devise corn which she herself had sown, nor did it go to her executors or administra- tors ; (/) but now, by the statute of Merton, 20 Hen. 3, c. 2, the representatives of a tenant in dower, like those of any other ten- ant for life, will be entitled to emblements. (^) If tenant in dower sows the land, and takes husband, who dies Executor of before severance of the corn, the dowress shall have the of dowress. crops, and not the executor of the husband. But if the husband of a dowress sows the land, and dies before severance, then the executor of the husband shall have them. (A) And, generally, with respect to the executor of a man seised in (6) But a person who resigns his living (g) See Com. Dig. Biens, G. 2, that the is not entitled to emblements. Bulwer v. statute was only in affirmance of the com- Bulwer, 2 B. & Aid. 470. The general mon law. See, also, S. P. Perk. 8. 522, rule of law is, that the tenant shall not and Gilb. Ev. 212. If two be tenants in have emblements when the tenancy is de- common of land in fee, and one of them termined by his own act ; as where the takes a wife, and dies, and the wife is en- lessee surrenders, or a woman who is ten- dowed, &c. and she and the other tenant in ant durante viduitate marries, or the estate common sow the land, &c. and afterwards determines by forfeitures, condition bro- she makes her executors, and dies, the corn ken, &c. Com. Big. Biens, G. 2 ; Davis not being severed, now her executors shall V. Eyton, 7 Bing. 154. have the corn in common with him who (c) 1 Roll. Abr. 655 ; Dismes, K. pi. 3 ; held in common with the tenant in dower. Wats. C. L. 513, 4th ed. Perk. ». 523. (d) Wats. C. L. 513, 4th ed. ; 3 Burn (A) Bro. Abr. tit. Emblements, pi. 26 ; E. L. 415, 8th ed. [Haslett v. Glenn, 7 Harr. & J. 17 ; Hall (e) 2 Inst. 81 ; Anon. Dyer, 316 a. v. Browder, 4 How. (Miss.) 224.] (/) Bract. lib. 2, fol. 96 ; 2 Inst. 81. [718] CH. II. § II.] IN CHATTELS VEGETABLE — EMBLEMENTS. 789 right of his wife, the rule is, that if he sow and die Execntor before severance, his executors shall have the emble- seised in ments. (i) But it seems, that if the land was sown wffe. ° '' before marriage, the wife shall have them, (k') And if Executor ,,,,.. .. ,,.« of liusband husband and wife are joint tenants for lite, and the hus- wiien hus- band sows, and the land survives to the wife, it is also wife are said that she shall have the corn. (0 ^°^_ *^"" * The executor or administrator of a jointress, like a tenant in dower, is entitled to emblements of the estate settled in Right of jointure; but she is not entitled to them at her hus- a jointress band's death to the exclusion of her husband's execu- ments^^*" tors, as a dowress is. (m} ■ Upon the death of a tenant bv the curtesv, like anv ^'s''' °^ 6X6cutors other tenant for life, the emblements of the estate held of tenant by the curtesy will go to his executors or administra- curtesy. tors, (n) A tenancy at will (in the strict sense of the expres- R'S^t of 6X6cutor of sion) is determined by the death of the lessee, and his tenant at executor or administrator will be entitled to emble- blements"" ments. (o) When there is a right to emblements, the law gives a free entry, egress, and regress, as much as is necessary, in Entry, order to cut and carry them away, (jo) But the emble- rfg^ess w (i) Co. Lit. 55 b; Swinb. pt. 3, s. 6, pi. 11, 253, 7th ed.; In Wentw. Off. Ex. p. 148, 14th ed., a case is put of the hus- band's sowing the land which his wife has for a term of years as executrix of an- other, and the author gives his opinion that the husband's executor would be en- titled to the crop, at least so much as is more than the year's value of the land. (fc) 1 Roll. Abr. Emblements, A. pi. 17, p. 727; Gilb. Ev. 213, {1} Co. Lit. 55 b, and the note to that passage from the Hal. MSS. ; Anon. Cro. Eliz. 61, by Wray C. J. ; Wentw. Off. Ex. 148, 14th ed. See, also, Godb. 189, pi. 270, by Coke C. J. But see Dyer, 316 o ,■ S. C. nomine Arnold u. Skeale, Noy, 149; 1 Roll. Abr. 728, pi. 16; Rowney's case, 2 Vern. 322, 323 ; and Gilb. Ev. 213, contra, in which last book it is said that the land is not in such a case cultivated by a joint stock (as in the ordinary case of joint ten- ancy), but it is wholly the corn of the husband, which property seems not to be entirely lost by committing it to their joint possession, no more than if it had been sown in the land of the wife only. It is said in Brooke, that if baron and feme tenants in tail sow the land, and the baron die before severance, the feme shall have the emblements and not the executor of the baron ; contra, if the baron had sold or devised them in his life ; for then the ex- ecutor shall have them. Bro. Abr. Em- blements, pi. 15. But Brooke adds, quaere, car videtur mihi que V executor eux avera. (m) Fisher v. Forbes, 9 Vin. Abr. tit. Emblements, pi. 82, p. 373. (n) 1 Roper Husband & Wife, 35, 2d ed. (o) Co. Lit. 55 6. (p) Co. Lit. 56 a. See Hayling v. Okey, 8 Ex. 531, 545. [719] 790 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. take the ments do not give a title to exclusive occupation ; and ments. it is doubted in Plowden's Queries, (g') whether the ex- ecutors of a lessee for life shall not pay rent for the land till the corn is ripe ; though, perhaps, says that author, the executors of tenant in fee simple shall have the corn without paying for it. •SECTION III. Of the Estate of an Executor or Administrator in Chattels Per- sonal Inanimate. As to chattels personal inanimate. These are evident, viz, all household stuff, implements, and utensils, money, plate, jewels, corn, pulse, hay, wood felled and severed from the ground, wares, merchandise, carts, ploughs, coaches, saddles, and such like mov- able things, (r) All these pass to the executor and administrator ; and although any one of them should be specifically bequeathed to a legatee, it will not vest in him till the executor has as- sented. It is necessary to attend to three instances in which the right of What chat- ^^^ executor or administrator to the chattels personal tels per- inanimate of the deceased is barred, to some extent, in sonal man- » . . , , . » imate do favor of certain special claimants : 1. Heir-looms, and theexecu- things in the nature thereof, in respect of the heir or ™' successor. 2. Fixtures, in respect of the heir or devisee, or in respect of the remainder-man or reversioner. 3. Para- phernalia and the like, in respect of the widow. 1. Seir-looms and Things in the Nature thereof. It is proposed to consider, I. Heir-looms and things of the same 1. Heir- nature, from which the executor or administrator is ex- looms: eluded in favor of the heir or successor. Heir-looms are such goods and personal chattels as shall go ly special custom to the heir along with the inheritance, and not to the executor or administrator of the last proprietor. The termination " loom " is of Saxon origin, in which language it signifies a limb or mem- ber ; so that heir-loom is nothing else but a limb or member of the (?) 239th queiy. (r) 'Wentw. Off. Ex. 141, 142, 14th ed. [720] CH. n. § III.J OF HEIR-LOOMS. 791 inheritance, (s) An heir-loom * is also called " principalium," a chief or principal, and " hsereditarium." (t) Brooke says (u) that heir-looms are those things which have continually gone with the capital messuage, by custom, ^^^^ *ey which is the best thing of every sort, as of beds, tables, strictly: pots, pans, and such like of dead chattels movable. And Lord Coke says (a;) that heir-looms are due by custom, and not by the common law, and that the heir may have an action for them at common law, and shall not sue for them in the ecclesiastical court. Also in Spelman's Glossary, («/) an heir-loom is defined to be "omne utensile robustius quod ab sedibus non facile revellitur, ideoque ex more quorundam locorum ad hseredem transit tanquam membrum heereditatis." And in Les Termes de la Ley (2) (a book of great antiquity and accuracy), (a) an heir-loom is de- scribed to be " any piece of household stuff (ascua parcel des utensils d'un mease), which, by the custom of some countries, hav- ing belonged to a house for certain descents, goes with the house (after the death of the owner) unto the heir and not to the ex- ecutors." Hence, it seems to follow that an heir-loom, must go to the heir by in the strict sense of the word, can only go to the heir custom: by force of a custom, and that in its nature it is a chattel distinct from the freehold. Yet Blackstone (6) says, that heir-looms are " generally such things as cannot be taken away without damag- ing or dismembering the freehold ; " and Lord Holt is reported to have said at nisi prius, that goods in gross cannot be an heir-loom, but they must be things fixed to the freehold, as old tables, benches, &c. ; (c) which proposition * is not only adverse to the authorities above cited, with regard to an heir-loom being a detached chattel, but is also liable to the objection that the heir would not then take it by custom, but as a thing annexed to the freehold at common law. Moreover, in the report of Lord Petre v. Heneage, by Lord (s) 2 Bl. Com. 457. But in Byng v. absolute gift to several persons as joint Byng, 10 H.L. Cas. 183, Lord Cranworth, tenants. 10 H. L. Cas. 183. on the authority of Johnson and Webster, (t) Bro. Discent. pi. 43 ; Co. Lit. 18 b. said he believed the more correct explana- (u) Discent. pi. 43. tion of the word is, that it is an old Anglo- (x) Co. Lit. 18 b. Saxon word, signifying goods or chattels. (y) Voce, Heir-loom. According to either derivation, it must (z) See Treat, on Fixtures, 162. mean something which, though not by its (a) 5 B. & C. 229. own nature heritable, is to have a herita- (b) 2 Com. 427. ble character impressed on it; an inter- (c) Lord Petre v. Heneage, 12 Mod. pretation hardly to be reconciled with an 520. [721] [722] 792 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. 11. BK. II. Raymond, (c?) Lord Holt merely says, "a jewel cannot be an heir- semhle, loom, but Only things ponderous, as carts, tables, &c." (e) a'ponder-* which agrees with the above definition by Spelman, 0U3 nature, u omne utensile rohustius." The custom which entitles the heir must be strictly proved. (/) Cioy^ The ancient jewels of the crown are heir-looms, and jewels. shall descend to the next successor. (^) If a man, says Lord Coke, (A) be seised of a house, and pos- Heir-looms sessed of divers heir-looms that, by custom, have gone are not de- , , . . . P visabie: with the house from heir to heir, and by his will deviseth away the heir-looms, this devise is void ; for Littleton says, " the will takes effect after his death, and by his death the heir-looms, by ancient custom, are vested in the heir, and the law prefers the custom before the devise." And Lord Coke, in another place, observes, that the ancient jewels of the crown, being heir-looms, are not devisable by testament, (z) So Lord Macclesfield, in but are Tipping V. Tipping, (A;) said, " I take it, bona para- by thean- pTi&rnalia are not devisable by the husband from the oestor in wife, any more than heir-looms from the heir." (J) Yet, time. during his life, the owner may sell or dispose of them, as he may of the timber of the estate, (jn) * Besides heir-looms, properly so called, there are other instances Chattels in of inanimate personal chattels, which the law gives to of heS-"^ the heir, as part of his inheritance, and which may be looms: considered as chattels in the nature of heir-looms. Thus, ments" monuments, coat-armor, the sword, pennons, and other coat- ensigns of honor, set up in memory of the deceased, &c. &'c. shall go to the heir of the deceased, as heir-looms in the honor of manner of an inheritance ; (n) and it matters not that deceased: ^j^^^ ^^^ annexed to the freehold, albeit that is in the (d ) Vol. i. p. 728. (I) See, also, to the same effect, 2 Bl. (c) And Blackstone, in an earlier part Com. 429 ; Com. Dig. Biens, B. of his Commentaries, vol. ii. p. 17, says, (m) 2 Bl. Com. 429. So the king may " an heir-loom or implement of furniture, dispose of the ancient crown jewels by which by custom descends to the heir to- patent. Lord Hastings v. Sir Archibald gether with a house, is neither land nor Douglas, Cro. Car. 344, by Berkeley and tenement, but a mere movable." Jones. (/) 2 Bl. Com. 428. (n) Corven's case, 12 Co. 105 ; Co. Lit. {g) Co. Lit. 18 6. 18 h; Frances v. Ley, Cro. Jac. 367; (A) Co. Lit. 185 6. May v. Gilbert, 2 Bulstr. 151 ; 2 BJ. Com. (i) Co. Lit. 18 b. 429 ; Co. Lit. 18 6. See Stubs v. Stubs, (k) 1 P. Wms. 730. 1 H. & C. 257, as to the heir's right [723] CH. II. § III.] OF HEIR-LOOMS. 793 parson, (o) But the property of the shroud and coffin remains in the executors or other person who was at the charge coffin and of the funeral ; and it may be laid to be theirs, in an ^'^™"'i= indictment for stealing them, (jo) So, though a testator devise all his jewels, &c. to his wife, yet his garter and collar of S. S. shall go to his heir, in collar of the way of heir-looms. (§') So where land is held by gavterT the tenure of cornage, an ancient horn may go along ancient with the inheritance, as an heir-loom, (r) ''°™" In the case of Upton v. Lord Ferrers, (s) a question was raised, whether the executor, or the heir-at-law of a peer of Jonmalsof parliament having succeeded to the peerage, was en- of lords: titled to the Journals of the house of lords, which are delivered to peers. The master of the rolls (Sir R. P. Arden) did not determine the point ; but intimated an opinion that the heir-at- law was entitled, observing, that a bishop gives a receipt * for the journals of his see ; and upon the death of a peer, the subsequent volumes only are delivered to the next lord. Charters or deeds relating to the inheritance, are considered so much to savor of the realty, that the law for some pur- charters poses does not account them to be chattels (f) but pro- t"^ *'^?'^^ ^ ^ \ y r belonging vides that they shall follow the land to which they t° the in- relate, and shall vest in the heir, as incident to the es- go to the' ' tate, to the exclusion of the executor or admiuistra- not to the tor. (m) So far has the doctrine of charters and other ^^^'="'°"' = written assurances concerning the realty not being chattels been carried, that larceny could not have been committed of them at common law, the taking of them being considered (as of other things which were part of the freehold) merely as a trespass and to a grant of arms from the Herald's Col- Seager v. Bowie, 1 Add. 541; and see lege. Spooner v. Brewster, 3 Bing. 136. (o) Co. Lit. 18 6; 1 Gibs. Cod. 544; 2 (q) Earl of Northumberland's case, BI. Com. 429. Owen, 124. (p) 2 Russell on Crimes, 163. If the (r) Pusey v. Pusey, 1 Vern. 273. executor lays a gravestone on the testa- (s) 5 Ves. 801. tor in the church, and sets up coat-armor, {t) By a grant of omnia bona et catalla, and the vicar or parson removes them or charters concerning the land shall not carries them away, an action on the case pass. Perk. s. 115 ; Touchst. 97, 98. lies for either the execntor or the heir. («) Godolph. pt. 2, c. 14, s. 1 ; Wentw. Godb. 200, by Coke ; i. e. (semble) if they Off. Ex. 153, 14th ed. ; Lit. 6 a, where were originally set up with a faculty. Lord Coke calls them the sinews of the land. [724] 794 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. not a felony, (a;) The very box or chest which has usually been 80 of the employed for keeping them partakes of their nature, wMchVe ■ ^"^^ S°®^ *° ^^^ '^^^'^' ^^^ "°* *° *^® executor ; C^) are kept: ^ud of that also, at common law, no larceny could have been committed, (a) Some writers have taken a difference, that the executors shall have the chest unless it be shut or sealed, (a) But the weight of authorities seems against any such distinction, and in favor of the heir's general right. (J) But this rule applies to those deeds and writings only which relate to the freehold and inheritance ; for such as regard terms for years, goods, chattels, or debts, belong to the executor or ad- ministrator, (c) * Personal property may also be devised or limited in strict chattels settlement to one for life, with remainder to sons and devised^as daughters in tail, so as to be transmissible like heir- heir-iooms: looms, {d) Thus a testator may devise or limit in strict settlement and estate and capital mansion, together with personal propertj'^, as the plate, pictures, library, furniture, &c. therein, such plate, &c. to be enjoyed, together with the house and estate, unalienable by the devisees in succession, so far as the law will allow. But the chattels, whether trustees be interposed or not, will be the absolute property of the first person seised in tail, and on his death devolve on his executors or administrators ; and be conformable to all the other rules concerning executory devises, so that the property cannot be rendered unalienable longer than lives in being and twenty-one years afterwards, (e) If the chattels, therefore, which are intended to go as heir- looms, are merely subject to the same limitations as the real estate limited in strict settlement, they will vest absolutely in the first tenant in tail, though he should die within an hour after his birth, {x) 2 Russell on Crimes, 141. But this Bac. Abr. tit. Exors. H. 3. If the writ- defect of the common law has been rem- ings of an estate are pawned or pledged edied by stat. 7 & 8 Geo. 4, c. 29, s. 23. for money, they are considered as chattels (y) Godolph. pt. 2, c. 14, s. 1 ; Wentw. in the hands of the creditor, and in case Off. £x. 156, I4th ed.; Com. Dig. Biens, of his decease, they will go to his personal ■^- representatives as the party entitled to the {z) 2 Russell on Crimes, 142. benefit accruing from the loan. Touchst. (a) Swinb. pt. 6, s. 7, pi. 5 ; Touchst. 469. 470; 1 Roll. Abr. 915, tit. Exors. U. pi. 7. (d) Co. Lit. 18 b, note (109), by Har- (6) Godolph. pt. 2, c. 14, s. 1 ; Wentw. grave. Off. Ex. 156; Law Test. 381. (e) lb.; Carr v. Lord Errol, 14 Ves. (c) Wentw. Off. Ex. 153, 14th ed. ; 478. [725] OH. II. § III.] OF HEIR-LOOMS. 795 and will go to his personal representative. Hence, as the real estate in that event passes over to the next remainder-man, a separation between the two properties ensues. It has been a sub- ject of much discussion whether this will be obviated by a mere direction that the chattels shall go together with the land, " for so long a time as the rules of law and equity will permit." But the point, it should seem, must now be considered as settled, that this must be treated as a direct and not as an executory gift, and that, consequently, the absolute interest in the chattels will nevertheless vest in the first tenant in tail. (/) And accordingly in the case of Rowland v. Morgan, (^) * it was ruled by Sir James Wigrara V. C. and afterwards Lord Cottenham C. on appeal, that a direction annexed to a bequest of chattels, that they shall go as heir-looms, although accompanied by a direction to the executors to make an inventory of them, does not render such bequest executory, or give to a court of equity any power to modify the legal effect of the bequest. In order, therefore, to prevent the separation, it is usual, after subjecting the chattels to the same limitations as the free- hold which they are to accompany as heir-looms, to add a decla- ration, that they shall not vest absolutely in the tenant in tail by purchase until twenty-one, or death under that age, leaving issue inheritable under the entail. (K) Lord Eldon, in Clarke v. Lord Ormonde, (i) said that heir- looms are a kind of property that are rather favorites Executors of the court ; and that, although no testator can in any °"eht not (/) Foley V. Bnrnell, 1 Bro. C. C. limitations, does not apply to the case of 274 ; Vaughan v. Burslem, 3 Bro. C. C. family jewels. 101 ; Duke of Newcastle v. Lincoln, 12 (g) 6 Hare, 463 ; 2 Phill. Ch. Ca. 764. Ves. 218 (overruling Lord Hardwieke's See, also, Holmesdale w. West, L. E. 3 Eq. decisions in Gower v. Grosrenor, Barn. Ca. 474. Ch. Ca. 54; S. C. 5 Madd. 337, and in [h) See Pow. Dev. by Jarman, vol. i. Trafford «. Trafford, 3 Atk. 347). See, 716,730,732; vol. ii. 642 ; 2 Jarman on further. Lord Scarsdale v. jCurzon, 1 John. Wills, 548, 3d ed. ; Boydell v. Golightly, & H. 40 ; Doncaster v. Doncaster, 3 Kay 14 Sim. 346, per Shadwell V. C. See, also, & J. 26; Hogg W.Jones, 32 Beav. 45; Potts u. Potts, 1 H. L. Cas. 671, for an Holmesdale v. West, L. R. 3 Eq. Ca. example of a limitation of chattels under 474 ; Christie v. Gosling, L. R. 1 H. L. which they do not vest in the tenant in 279 ; Harrington v. Harrington, L. E. 3 tail on his birth. See, further, the obser- Ch. App. 564 ; HoUoway v. Webber, L. E. vations of Wood V. C. on this case in his 6 Eq. Ca. 523 ; Shelley v. Shelley, L. E. 6 judgment in Lord Scarsdale v. Curzon Eq. Ca. 540. In this case it was held by [vhi supra), where all the previous cases Wood V. C. that the objection, if any, to are fully and most ably reviewed, limiting personal estate as heir-looms, (i) 1 Jacob, 114, 115. where there is no real estate to guide the [726] 796 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. H. BK. II. to apply yf^j exempt any part of his personal estate from ap- necessariiy plicability to the payment of his debts, nor can he put ment^or'''" into the hands of his executors the means of defending debts. themselves at law; yet where a testator makes a will providing that certain * portions of his effects shall be treated as heir-looms, it is the duty of the executors, as far as possible, to preserve those parts of his property, and unless compelled they ought not to apply them to the payment of debts. (A) In the case of a corporation sole, as a bishop or parson, the gen- Chattels eral rule is, that chattels cannot go in succession ; and the'siicces" there has already been occasion to point out a strong corp°oration instance of this doctrine, viz, that though a lease for mann'er'^f J^^^^ ^® made to a bishop and Ms successors, yet it will heir-looms, go to his executors. (?) But there are some exceptions not only in cases of choses in action, which will hereafter be exam- ined, but in cases of chattels personal, which shall go to the suc- cessor of a corporation sole in the manner of heir-looms. Thus it has been held that the ornaments of the chapel of a preceding bishop belong to the succeeding bishop, and are merely in succes- sion, (m) So if an incumbent enter upon a parsonage-house in which are hangings, grates, iron backs to chimneys, and such like, not put up there by the last incumbent, but which have gone from successor to successor, the exedutor of the last incumbent shall not have them, but they shall continue in the nature of heir-looms ; but if the last incumbent fixed them there only for his own con- venience, it seems they shall be deemed as furniture, or household goods, and shall go to his executor, (n) 2. Fixtures. II. Fixtures, from which the executor or administrator is ex- cluded in respect of the heir or devisee, or in respect of the remainder-man or reversioner. When personal inani- mate chattels are affixed to the freehold, they are usually denom- inated fixtures ; (o) and the questions concerning them, * which (k) 1 Jacob, 108. the freehold ; which sense of the term is (I) Ante, 675. the most easy of adaptation to the present (m) Corven's case, 12 Co. 105, 106. treatise. For general purposes, the defini- (n) 4 Burn E. L. 304, 8th ed. tion given in the work of Messrs. Amos (o) The word " fixture " is here used to & Ferard is certainly the most conven- convey the idea simply of annexation to ient and scientific, viz, " fixtures are those [727] [728] CH. II. § III.] OF FIXTURES. 797 form the present subject of inquiry, have arisen in the nature of exception to the general rule of law with resrard to chat- „ -, . , . T • . . . General tels in their condition, viz, quicquid plantatur solo, lu'e quic- solo cedit, i. e. whatever is affixed to the realty is thereby tatur solo, made parcel of it, and partakes of all its incidents and properties, (p) personal chattels which have been an- nexed to land and which may be after- wards severed and removed by the party who has annexed them against the will of the owner of the freehold." Treatise on the Law of Fixtures, p. 2. See, also, the judgments of Parke B. and Martin B. in Elliott V. Bishop, 10 Ex. 507, 518, and of Coleridge J. 11 Ex. 119; [State V. Bonhan, 18 Ind. 231 ; Pickerell y. Car- son, 8 Iowa, 544 ; Prescott v. Wells, 3 Nev. 82; Teaff w. Hewitt, 1 Ohio St. 511.] The general question of the origin and extent of the doctrine of " fixtures " was fully discussed in the late case of Bishop V. Elliott, 10 Ex. 496; S. C. in Cam. Scacc. 11 Ex. 119. On a declaration in trover for goods, chattels, and fixtures (enumerating, among other merely mov- able articles, stoves, shelves, closets, cup- boards, &c.), it was held, after verdict (general damages having been assessed on the whole declaration), that the word " fixtures " would not necessarily be taken to mean things aflSxed to the freehold, and therefore the judgment ought not to be arrested. Sheen o. Rickie, 5 M. & W. 175; [1 Chitty Contr. (Uth Am. ed.) 489, 491, and note (/) ; 1 Sugden V. & P. (8th Am. ed.) 33, note (x) and cases cited ; Ex parte Barclay, 5 De G., M. & 6. 403 ; Haley v. Hammersley, 3 De G., E. & J. 587; Eifield t. Maine Central Railroad Co. 62 Maine, 77 ; Pierce v. George, 108 Mass. 78; A]\ord Carriage Manuf. Co. v. Gleason, 36 Conn. 86.] (p) See the judgment of Lord Hard- wicke C. in Dudley v. Warde, Ambl. 113, and of Lord EUenborough, in Elwes v. Maw, 3 East, 51 ; [English v. Foote, 8 Sm. & M. 444.] This rule is always open to variation by agreement of parties. Wood V. Hewett, 8 Q. B. 913. [See Bige- low J. in Wall v. Hinds, 4 Gray, 273 ; Brearley o. Cox, 4 Zabr. (N. J.) 287. Prima facie all buildings, and especially dwelling-houses, belong to the owner of the land on which they stand, as part of the realty. It is only by virtue of some agreement with the owner of the land that buildings can be held by another party as personal property, with a right of re- moval. If erected wrongfully or volun- tarily, without such agreement, they be- come the property of the owner of the soil. If built by a husband upon land of his wife, they become realty, because he could make no agreement with his wife, and therefore the law cannot imply an agreement for separate ownership. Wells J. in Howard v. Feasenden, 14 Allen, 128 ; Wells V. Bannister, 4 Mass. 514 ; Wash- burn V. Sproat, 16 Mass. 449; Pullen v. Bell, 40 Maine, 314; 1 Chitty Contr. (11th Am. ed.) 500, note (p) ; Kelly a. Austin, 46 111. 156 ; Gibbs v. Estey, 15 Gray, 587 ; Stillman v. Hamer, 7 How. Miss. 421 ; Fisher v. SafFer, 1 E. D. Smith, 611 ; Eeid V. Kirk, 12 Rich. (S. Car.) 54; Dame v. Dame, 38 N. H. 429 ; White's Appeal, 10 Penn, St. 252; Preston v. Briggs, 16 Vt. 124 ; Van Ness v. Pacard, 2 Peters, 137 ; Boiling u. Whittle, 1 Ala. Sel. Cas. 268. But an agreement giving a right to re- move a dwelling-house which is put upon the land of others may be implied from the circumstances. Howard v. Fessenden, 14 Allen, 124 ; Wilgus v. Gettings, 21 Iowa, 177; Brown u. Lillie, 6 Nev. 244; Fuller V. Taylor, 39 Maine, 519 ; O'Donnell u. Hitchcock, 118 Mass. 401. As a general proposition, however, as between heir and executor, vendor and vendee, and mort- gagor and mortgagee, all buildings which enhance the value of the estate, and are designed to be occupied by the owner 798 OP THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. It will perhaps be convenient to consider in the first place, what is such an annexation to the freehold as will brine; What 13 an , . , . , n i i i i i annexation a chattel Within the general rule ; and then to proceed to to the free- inquire, in what cases the rule is relaxed with respect ^''^^' to an executor or administrator. In order to constitute such an annexation it is necessary that the article should be let into or united to the land, or to substances previously connected therewith. It is not enough that it has been laid upon the land, and brought into contact with it. The rule requires something more than mere juxta-position ; as, that the soil shall have been displaced for the purpose of receiving the article, or that the chat- tel should be cemented, or otherwise fastened to some fabric pre- viously attached to the ground, (g') As an illustration may be mentioned the case of Culling * v. TufEnall (r) before Treby C. J. at nisi prius, where it was holden that the tenant, who had erected a barn upon the premises, and put it upon pattens and blocks of timber lying upon the ground, but had not fixed it in or to the grown , might take it away at the end of his term, (s) On the other hand, where the tenant had erected a veranda, the lower part of which was attached to posts which were fixed in the ground, Abbot J. held that the tenant could not remove any part of it. (i) thereof, agreeably to the principles of the v. Griffiths, 35 Barb. 58 ; Cook v. Cham- common law, become a part of the realty, plain Trans. Co. 1 Denio, 91 ; Walker v. and pass with it by deed or descent. Le- Sherman, 20 Wend. 636 ; Brennan v. land D. Gassett, 17 Vt. 403; Schemmer w. Whittaker, 15 Ohio St. 446; Swift v. North, 32 Missou. 206.] Thompson, 9 Conn. 63 ; Gale v. Ward, {q) Treatise on Fixtures, p. 2 ; Wilde 14 Mass. 352.] V. Waters, 16 C. B. 637 ; [1 Chitty Contr. (r) Bull. N. P. 34. (11th Am. ed.) 490; Bigelow J. in Wall w. (s) In BuUer, it is said to have been Hinds, 4 Gray, 271. But actual attach- holden that he might do so by the cus- ment or fastening to the land is not neces- torn of the country ; but Lord EUenbor- sary to make a chattel a fixture. Snede- ough, in adverting to the case (in Blwes ker V. Warring, 12 N. Y. 170; Bainway v. Maw, 3 East, 55), observes that the V. Cobb, 99 Mass. 457. A cistern which tenant might have done so without any was made of wood, lined with lead, and custom ; for the terms of the statement rested on the floor of the attic ; and was exclude the things from being considered filled with water by means of a supply as fixtures. pipe, which passed from the city aqueduct (<) Penry v. Brown, 2 Stark. N. P. C. into the cellar of the building, and up 403. In this case the tenant bad cove- through the floors to the cistern, was held nanted to repair and keep in repair the to be a fixture. Wall v. Hinds, 4 Gray, premises, and all the erections, buildings, 256. It is the permanent and settled an- and improvements, which might be erected nexation, and not the manner of fasten- thereon during the terms and yield up the ing, that determines when personal prop- same in good and sufficient repair. [Kin- erty becomes part of the realty. Laflin sell v. Billings, 35 Iowa, 154, case of a [729] CH. n. § III.] OF FIXTURES. 799 In the case of R. v. Londonthorpe, (?^) where a tenant had built on part of the land a post windmill constructed upon cross traces, laid upon brick pillars, but not attached or affixed thereto ; the court held that the windmill was a mere chattel, and not to be considered as connected with the land, (a;) And generally, where the buildings are * not let into the soil, but merely rest upon blocks or pattens, they continue mere chattels. («/) It is obvious, that in similar cases, where it is a conclusion of fact that the con- nection with the soil does not amount to an actual annexation, the property continues in every respect a mere chattel, and will pass as such to the executors and administrators. (^^) Moreover, the object and purpose of the annexation must be re- garded, (.y'^) For if a chattel be fixed to a building, merely for the more complete enjoyment and use of it as a chattel, it still, it should seem, remains a chattel, notwithstanding it is annexed to the freehold ; and is never a part of it, any more than a carpet which is attached to the floor by nails for the purpose of keeping it stretched out. And on this principle it was held that cotton saw-mill, built in a permanent manner and attached to the soil ; held part of the realty.] (m) 6 T. E. 377. (r) So in R. v. Otley, Suffolk, 1 B. & Ad. 161, a pauper rented a windmill, and a brick-built cottage and garden, at the rent of i30 per annum for six years, and during that time held and occupied the same, and actually paid that rent, and was rated to and paid the rates for the relief of the poor. The cottage and gar- den, with the mill, were together of more than the annual value of ilO, but exclu- sive of the mill they were not of that annual value. The mill was of wood, and had a foundation of brick ; but the wood- work was not inserted in the brick founda- tion, but rested upon it by its own weight alone. No part of the machinery of the mill touched the ground or any part of the foundation. It was held that the windmill, not being affixed to the freehold, nor to anything connected with it, was not parcel of a tenement, and, conse- quently, that the pauper gained no settle- ment. Again in Wansbrough i^. Maton, 4 Ad. & El. 884, it was held that a tenant was entitled, at the expiration of his term, to remove a barn which he had erected on a foundation of brick and stone, the foundation being let into the ground, but the barn resting upon it by its weight alone ; and that he-might main- tain trover for such a barn. See, also, "Wiltshear v. Cottrell, 1 El. & Bl. 674. (y) Nayler v. Collinge, 1 Taunt. 21. (i/i) [See Park w. Baker, 7 Allen, 78; Woodman v. Pease, 17 N. H. 282.] (i/2) [See Bainway v. Cobb, 99 Mass. 458. Personal property attached to land will be regarded as fixtures, where such is the manifest intention of the parties. Potts V. New Jersey Arms &c. Co. 14 N. J. (Law) 395 ; Hill v. Wentworth, 28 Vt. 428 ; Ford v. Cobb, 20 N. Y. 344 ; Wall V. Hinds, 4 Gray, 256, 271 ; Bliss v. Whit- ney, 9 Allen, 114, 115 ; Perkins v. Swank, 43 Miss. 349, 362 ; Parsons u. Copeland, 38 Maine, 537, 546 ; Capen i^. Peckham, 35 Conn. 88 ; Teaff v. Hewitt, 1 Ohio St. 511 ; Strickland v. Parker, 54 Maine, 266; Snedeker v. Warring, 2 Kernan, 170.] [730] 800 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. spinning machines, screwed into and fixed firmly to the floor, were chattels and distrainable for rent, (s) But there may be a sort of constructive annexation of a chattel construe- not actually affixed to the freehold ; as if a man has a tlVP 3,TlTlPX-» ation. mill, and the miller takes the stone out of the mill, to the intent to pick it, to grind the better ; although it is actually severed from the mill, yet it remains parcel of the mill, and will go to the heir. The same law of keys, and (in some sort) of doors, windows, rings, &c. which, although they are distinct things, shall go with the inheritance of the house, (a) So the {z) Hellawell v. Eastwood, 6 Ex. 295 ; 10 Ex. 508, 520; Longbottom v. Berry, L. E. 5 Q. B. 123 ; Turner v. Cameron, L. K. 5 Q. B. 306 ; [Cresson u. Stout, 17 John. 116; Tobias u. Erancis, 3 Vt. 425; Swift V. Thompson, 9 Conn. 63 ; Gale u. Ward, 14 Mass. 352 ; Walker v. Sherman, 20 Wend. 636; Taffe v. Warwick, 3 Blackf. 113; Hill v. Wentworth, 28 Vt. 428; EuUam v. Stearns, 30 Vt. 443 ; Mor- gan V. Arthurs, 3 Watts, 140 ; Lemar v. Miles, 4 Watts, 330; Despatch Line of Packets v. Bellamy Manuf. Co. 12 N. H. 234; Murdock v. Gifford, 18 N. Y. 28; Bartlett v. Wood, 32 Vt. 372 ; Childress V. Wright, 2 Coldw. (Tenn.) 350 ; Voor- hies V. McGinnis, 46 Barb. 372 ; Wade il Johnson, 25 Geo. 331 ; Strickland v. Par- ker, 54 Maine, 263 ; McLaughlin v. Nash, 14 Allen, 136 ; Lacey v. Giboney, 36 Mis- sou. 320; Sturgis v. Warren, 11 Vt. 433. In the United States, generally, perma- nent machinery, such as the main wheel and its gearing, an engine attached to a building, a cotton gin iixed to its place, will vest in the grantee or mortgagee of the real estate to which they belong. It is not necessary that the machinery shall at tbe time of sale be actually affixed to the realty in order to pass with it. This kind of machinery may pass with a sale of the realty although for a particular purpose, at the time, temporarily detached. Voorhis v. Freeman, 2 Watts & S. 116; Powell V. Monson & Brimfield Manuf. Co. 3 Mason, 459 ; Earrar v. Stackpole, 6 Greenl. 154; Baker v. Davis, 19 N. H. 325; Sparks v. State Bank, 7 Blackf. 469 ; Parsons v. Copeland, 38 Maine, 537 ; Bratton v. Clawson, 2 Strobh. 478; Eng- lish V. Eoote, 8 Sm. & M. 444 ; Eice v. Adams, 4 Harring. 332 ; Degraffeniied u. Scruggs, 4 Humph. 431 ; Murdock v. Har- ris, 20 Barb. 407; Preston v. Briggs, 16 Vt. 124; Miller v. Plumb, 6 Cowen, 665; Trull V. Fuller, 28 Maine, 545 ; Corliss v. McLagin, 29 Maine, 115; Union Bank v. Emerson, 15 Mass. 159; Despatch Line of Packets v. Bellamy Manuf. Co. 12 N. H. 205 ; Richardson v. Copeland, 6 Gray, 536 ; Winslow o. Merchants Ins. Co. 4 Met. 306 ; Butler v. Page, 7 Met. 40. In Pennsylvania, all machinery necessary to constitute a manufactory passes with the land on which it stands. The criterion, whether fixture or not, is not the perma- nent fastening to the freehold. Harlan v. Harlan, 15 Penn. St. 513 ; Heatou v. Find- lay, 12 Penn. St. 304; Pyle v. Pennock, 2 Watts & S. 390 ; Voorhis v. Freeman, 2 Watts & S. 116 ; Roberts v. Dauphin De- posit Bank, 19 Penn. St. 71. As to New York, &c. ante, 728, note (q).] But see the observations of Wood V. C. in Mather V. Frazer, 2 Kay & J. 549 et seq. ; [Black- burn J. in Holland u. Hodgson, L. R. 7 C. P. 328.] See, also, Davis u. Jones, 2 B. & A. 165; Waterfall «. Penistone, 6 El. & Bl. 876 ; Walmsley v. MUne, 7 C. B, N. S. 115. See, also, Ex parte Astbury, L. E. 4 Ch. App. 630 ; Climie v. Wood, L. R. 4 Ex. 328. (a) Liford's case, 11 Co. 50 b; Place v. Fagg, 4 Man. & Ryl. 277 ; Walmsley v. Milne, 7 C. B. N. S. 138, per Crow- der J. CH. II. § in.] OF FIXTURES. 801 sails of a windmill are parcel of the freehold, and shall go to the heir, and not to the executor. (6) * It has been laid down that dung in a heap is a chattel, and goes to the executors, (6^) but if it lies scattered upon the ground, so that it cannot well be gathered without gathering part of the soil with it, then it is parcel of the freehold, (c) The second branch of the inquiry respecting fixtures remains to be investigated, viz, when chattels personal have been affixed to (i) R. u. Crosse, 1 Sid. 207, by Clench Higgoni;. Mortimer, 5 C. & P. 616. [Ma- and Fanner JJ. [A fence inclosing a field, of whatever construction and mate- rial, whether having posts inserted in the ground or not, is a part of the freehold. Smith V. Carroll, 4 Greene (Iowa), 146 ; Boon V. Orr, 4 Greene (Iowa), 304; Glid- deu V. Bennett, 43 N. H. 305 ; Wentz v. Fincher, 12 Ired. (Law) 297; Mitchell u. Billingsley, 17 Ala. 391. Fencing mate- nure taken frorti the barn-yard of a home- stead, and piled upon the land, though not broken up, nor rotten, nor in a fit state for incorporation with the soil, is part of the realty, and does not go to the admin- istrator of the owner. Fay v. Muzzey, 13 Gray, 53 ; Plumer v. Plumer, 30 N. H. 558, 568 ; Conner v. CoiEn, 22 N. H. 538 ; Sawyer v. Twiss, 29 N. H. 345. Manure rials, which have been used as a part of scattered about the barn-yard, or spread the fence accidentally or temporarily de- upon the land, will pass by a conveyance tachcd from it, without any intent of the of the land, unless there is a reservation of owner to divert them permanently from it in the deed. Parsons «. Camp, 1 1 Conn, that use, do not cease to be a part of the 525 ; Goodrich v. Jones, 2 Hill (N. Y.) freehold. Goodrich v. Jones, 2 Hill (N". 142; Middlebrook v. Cowen, 15 "Wend. Y.), 142. The same principle was applied 169; Kittredge v. Woods, 3 N. H. 503; to a case of hop-poles, which had been Stone a. Proctor, 1 Chipman, 108 ; Strong taken up and laid in heaps for preser- vation through the winter, in Bishop v. Bishop, 11 N. Y. 123, and see, also, Shaw C. J. in Winslow v. Merchants Ins. Co. 4 Met. 314 ; Wadleigh v. Janvrin, 41 N. H. 503; Qiiinby v. Manhattan Cloth & Pa- per Co. 9 C. E. Green, 260. But rails in stacks are personal property and the title to them vests in the executor or adminis- V. Doyle, UO Mass. 92. But the rule does not apply to manure made in a livery sta- ble, or in any manner not connected with agriculture, or in a course of husbandry. Daniels u. Pond, 21 Pick. 367; Needham V. Allison, 24 N. H. 355 ; Plumer v. Plumer, 30 N. H. 569 ; Lassell v. Keed, 6 Greenl. 222; Smithwick V.Ellison, 2 Ired. 326; Hill V. De Rochemont, 48 N. H. 87, 90 ; trator. Clark v. Burnside, 15 111. 62; Corey ii. Bishop, 48 N. H. 148; Perry u. Robertson v. Phillips, 3 Iowa, 220. See Carr, 44 N. H. 120. See 1 Chitty Contr. Johnson v. Mehaffey, 43 Penn. St. 308. (11th Am. ed.) 509, note (o). And, there- So hewed timber, posts, and sawed logs, fore, manure from a hotel stable, which lying loosely upon the land, though orig- was included in the inventory of an ad- inally intended to be put into a building ministrator, and agreed to be personal es- upon the land, are not fixtures. Cook v. tate, must be accounted for by the admin- Whiting, 16 111. 430.] (W-) [But seePIumerw. Plumer, 30 N, H. 558, 568 ; Conner u. Coffin, 22 N. H. 538 ; Sawyer v. Twiss, 26 N. H. 345 ; Lassell v. Reed, 6 Green). 222.] (c) Yearworth v. Pierce, Aleyn, 32 ; S. C. nomine Carver v. Pierce, Sty. 66. See VOL. 1. 51 istrator; and it is no sufficient account for the administrator to say that he has ex- pended this manure upon the real estate which was afterwards sold for the payment of debts ; an administrator has no right thus to expend the personal property of his intestate. Fay v. Muzzey, 13 Gray, 53.] [731] 802 OF THE QUANTITY OF AN EXECUTOR-S ESTATE. [PT. II. BK. II. the freehold, and have thus lost their chattel character, under In what what circumstances the executor or administrator of ecutors'are ^^^ person who affixed them is entitled to sever them, entitled to j^jjj ^q reduce them aeain to a state of personalty, so as sever iix- ° / ^ •' _ tures : to form part of the estate of the personal representative. 1. The subject will first be considered as between the executor 1. Eiffhtof ^^ administrator, and the heir of tenant in fee. In this theexecu- case, the old rule of law above mentioned, '■'■ quiequid ant in fee plantatur solo, solo oedit" still obtains with some rigor to fixtures t, .,.,. , . i-ii as against in lavor 01 the inheritance, and against the right to dis- annex therefrom, and consider as a personal chattel, anything which has been affixed thereto, (c'^) whereas, in the case as between the executors of tenant for life or in tail, and the remainder-man or reversioner, the right to the fixtures is consid- ered more favorably for the executors ; and in the case as between landlord and tenant (which, although foreign to this treatise, it will be necessary in some measure to contemplate), still greater latitude and indulgence has been allowed in favor of the ten- ant, (^d) It must, therefore, carefully be observed, that an in- stance of the right allowed to a tenant as against his landlord, is no authority for its allowance to an executor as against the heir, or the remainder-man or reversioner ; nor does it follow, that be- cause the executor of tenant for life or in tail is entitled *to certain fixtures, that the executor of tenant in fee will also be entitled. The rule as anciently established, between the executor and Old rule heir of tenant in fee seems to have had no exceptions ; the^xera- whatever was affixed to the freehold descended to the hiivohen- ^^®^^ ^^ parcel of the inheritance. "The law is the ant in fee. same," says Godolphin, (e) " concerning all things fast- ened to the freehold, or to the ground by mortar or stone, as tables, dormants, leads, mangers, millstones, anvils, doors, keys, glass windows, and the like ; for none of these be chattels, but parcels of the freehold, and, therefore, belonging to the heir, not the executor." So it is said in the Touchstone, (/) " the inci- (ci) [2 Kent, 345 ; Tuttle v. Robinson, Kenyon's judgment in Penton v. Robart, 2 33 N. li. 119, 120; Guthrie v. Jones, 108 East, 90, 91. Mass. 191, 196.] (e) Pt. 2, i;. 14, s. 1. (rf) Elwes V. Maw, 3 East, 51, in Lord (/) P. 470. Ellenborongh's judgment. See, also. Lord [732] CH. 11. § III.] OF FIXTURES. 803 dents of a house, as glass windows annexed with nails or other- wise to the windows, the wainscot fixed by nails, screws, or irons put through the posts or walls, tables, dormants, furnaces of lead and brass, and vats in a brew and dye-house standing and fastened to the walls, or standing in or fastened to the ground in the mid- dle of the house (although fastened to no wall), a copper, or lead, fixed to the house, the doors within and without that are hanging and serving to any part of the house, shall not go to the executor or administrator to be divided and sold from the house." So it is laid down in Noy's Maxims, (c/) " all chattels shall go to the executors as vats and furnaces fixed in a brew-house or dye-house by the lessee ; but if they be fixed by tenant in fee, the heir shall have them." (A) But in modern times some relaxations of the rule have ob- tained ; which may be considered, 1st, with respect to Egjaxa- fixtures put up by the tenant in fee for the purposes of ''™^ *'* ^ ^ •' _ . respect to trade ; and 2dly, with respect to fixtures put up by him executor's for ornament or domestic convenience. As to trade fix- against the tures, the first instance of departure from the old rigor trade fix- was in the * case of a cider-mill, before C. B. Com- '"''®^' yns, at the assizes, at Worcester, where, upon an action of trover brought by the executor against the heir, the cider-mill, though deep in the ground, and certainly affixed to the freehold, was held to be personal estate, and the jury were directed to find for the executor, (i) This, in fact, is the only expressly decided case in favor of the right of the executor of tenant in fee to trade fix- tures ; although Lord Hardwicke, in Lawton v. Lawton, (^) allud- ing to fire-engines set up in a colliery, said, " I think, even between ancestor and heir, it would be very hard that such things should go in every instance to the heir ; " and Lord Ellenborough, in his judgment in Elwes v. Maw, (1} recognizes the principle of C. B. Comyn's decision. Its authority, however, has lately been denied in the house of lords in Fisher v. Dixon ; (m) unless on the sup- (g) p. 51. 114, and by Lord Ellenborough in Elwes v. (A) See, also, Swinb. pt 6, s. 7, pi. 5 ; Maw, 3 East, 54. [See Crenshaw v. Cren- Wentw. Off. Ex. 149, 150, 151, 14th ed. ; ehaw, 2 Hen. & Munf. 22.] Herlakendcn's case, 4 Co. 64 a. {k] 3 Atk. 15. (j) Ex relatione Wilbraham, in 3 Atk. (/) 3 East, 54. 14, Lawton v. Lawton. The decision was (m) 1 2 CI. & F. 312, [Am. ed. and cases recognized by Lord Hardwicke in that case, in notes (1) and (2),] 325, 329, 331. and in Lord Dudley v. Lord Warde, Ambl. [733] 804 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. position that the cider-mill in question was not annexed to the freehold (which it has alwa5's been assumed to have been in all the previous judicial discussions of the case). The ease of Fisher V. Dixon has also negatived the doubt suggested by the dictum of Lord Hardwicke above cited. For it was there held by the house of lords, that machinery affixed to the freehold by the owner in fee of certain land (purchased by himself), consisting of steam- engines, rails, and other fixtures, erected and used by him in the course of trade, for the purpose of working coal and iron mines in the land, went to his heir as part of his real estate. And several learned peers laid down that the principle on which a departure has been made from the old rule in favor of trade has no applica- tion to a case between the heir and the executor, (w) *This decision is in accordance with that of Lawton v. Sal- mon, (o) where an action of trover was brought by an executor against the tenant of the heir-at-law of the testator, to recover certain vessels used in salt-works, called salt-pans. The testator, some years before his death, placed the salt-pans in the works ; they were made of hammered iron and riveted together ; they were brought in pieces, and might again be removed iu pieces ; they were not joined to the walls, but were fixed with mortar to a brick floor ; there were furnaces under them ; they might be removed without injuring the buildings, though the salt-works would be of no value without them. The question was, whether the executor or the heir-at-law was entitled to them. Lord Mans- field, in delivering the judgment of the court, after observing that the strict rule had been relaxed between landlord and tenant, and between tenant for life and remainder-man, thus proceeded : " But I cannot find that between heir and executor there has been any relaxation of this sort, except in the case of the cider- mill, which is not printed at large. The present case is very strong. The salt-spring is a valuable inheritance, but no profit arises from it, unless there is a salt-work, which consists of a building, &c. for the purpose of containing the pans, &c. which are fixed to the ground. The inheritance cannot be enjoyed without them. They are accessories necessary to the enjoyment and use of the principal. The owner erected them for the benefit (n) See post, 743 ; Mather v. Erazer, 2 (o) I H. Bl. 259, in a note to Fitzher- Kay & J. 536 ; Walmsley v. Milne, 7 C. B. bert v. Shaw. N. S. 115. [734J CH. II. § in.] OF FIXTURES. 805 of the inheritance ; he could never mean to give them to the executor, and put him to the expense of taking them away, with- out any advantage to him, who could only have the old materials, or a contribution from the heir in lieu of them. But the heir gains 81. per week by them. On the reason of the thing, there- fore, and the intention of the testator, they must go to the heir." (oi) In Trappes v. Harter, (p) the question was, whether the * ma- chinery, which was the subject of the action, passed to the mort- gagee under a mortgage deed, or vested in the assignees under a commission of bankruptcy. The bankrupts had carried on the business of calico printers, in partnership, at Catterall, near Gars- tang, in the county of Lancaster. Many years ago, the lands and buildings in question were purchased, and the conveyance was taken to one of the partners ; but it was clear that the estate was treated throughout as belonging to the partnership. The ma- chinery was erected by the partners, for the purpose of carrying on the partnership trade. It consisted principally of articles which could be removed without the slightest injury to the free- hold. They were fixed by bolts and screws, so that they could be drawn off without any damage to the building. All the rest of the machinery was so fixed that it was capable of being removed ; and it was actually removed without any material injury either to itself or to the freehold. In taking the account of stock, the land and buildings were always placed under one head, and the ma- chinery under another. In the part of the country where these premises were situated, it appeared that machinery of this descrip- tion was constantly bought and sold distinctly from the freehold. It was held by the barons of the exchequer, that, looking at the particular terms of the mortgage deed (which it is unnecessary to state with reference to the present inquiry), the machinery in question did not pass by it ; but that it formed part of the part- nership estate, and passed to the assignees as such. And Lord Lyndhurst C. B. in delivering the judgment of the court, observed that it was clear, as between landlord and tenant, it might be re- moved by the tenant, if put there by him ; as between heir and (oi) [Fowler J. in Tuttle o. Eobinson, {p) 2 Cr. & M. 153 ; S. C. 3 Tjrwh. 33 N. H. 104, 120 ; Parker C. J. in Des- 603 ; [Cook v. Champlain T. Co. 1 Denio, patch Line of Packets k. Bellamy Manuf. 92.] Co. 12 N. H. 232 ; Kittredge v. Woods, 3 N. H. 504.1 [735] 806 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. executor, it would have passed to the executor. His lordship pro- ceeded to observe, that applying the authorities of Lawton v. Lawton and Lawton v. Salmon, to the present case, the court thought that this machinery, erected for the purposes of trade, in a neighborhood where machinery of such description was com- monly removed, and which was capable * of removal without in- jury to the freehold, was not to be considered as belonging 'to the inheritance, but as part of the personal estate, (g) It seems to have been held, that the custom of the country may extend the rights of the executor beyond the rules above stated. In Viner's Abridgment, (r) it is said, " A granary built on pil- lars in Hampshire is a chattel, and goes to the executors, and may be recovered in trover. This shall be understood according to the custom of the country. Coram Eyre C. B. summer assizes, 1724, afud Winchester." As to the right of the executor of tenant in fee to fixtures set Relaxation ^p for ornament or domestic convenience, the first in- witli r6~ spec.t to fringement of the strict rule in favor of the heir, with right, as rcspect to fixtures of this sort, appears to be in Squire hfrr'Tofix- V. Mayer, Trin. term, 1701, where it was held by Lord Jrio/oi^ Keeper Wright, that a furnace, (r^) though fixed to the namentor freehold and purchased with the house, and also the conven- , ■*■ ience: hangings nailed to the walls, should go to the executor furnace: and not to the heir ; and so determined, says the report, hangings: contrary to Herlakenden's case, (s) (q) It should seem, however, that the position clause, but because they were the above case was certainly not at all in- property of the bankrupts. 5 Do G., M. tended to interfere with the principle estab- & G. 412. lishcd by Baker v. Horn, 9 East, 215, viz, (r) Tit. Executors, U. 74. See, also, that fixtures affixed to the freehold are Davis v. Jones, 2 B. & A. 165. not "gooils and chattels, in the order and (r^) [But sec Main v. Schwarzwaeldor, disposition of the bankrupt," so as to pass 4 E. D. Smith, 273, in which it was held to his assignees, under the bankrupt laws, that a furnace, so placed in a house that The point decided in Baker w. Horn has it cannot be removed without injury to the been settled to be good law by numerous house, is a fixture. It has, however, been subsequent cases. See Clark u. Crown- shaw, 3 B. & Ad. 804 ; Combs t. Beau- mont, 5 B. & Ad. 72 ; Boydell v. M'Mi- chael, 1 Cr., M. & R. 177 ; S. C. 3 Tyrwh. 974 ; Rufford v. Bishop, 5 Euss. 346 ; Hub- decided that stills set up in furnaces in the usual manner for making whiskey, are not fixtures, but personal property. Burk v. Baxter, 3 Missou. 207 ; Moore v. Smith, 24 111. 513 ; Terry v. Robbins, 5 Sm. & M. bard v. Bagshaw, i Sim. 326; Ex parte 291.] Barclay, 5 Do G., M. & G. 403. In Trap- (s) 2 Eq. Cas. Abr. 430 ; S. C. 2 Trcem. pes V. Barter, the fixtures belong to the 249; [Weston u. Weston, 102 Mass. 5U. assignees, not under the order and dis- A personal chattel becomes a fixture so as [736] CH. n. § III.] OF FIXTURES. 807 The next case on the subject was Cave v. Cave, (t^ decided by the same judge, in Trin. term, 1705. The lord keeper pictures: * was there of opinion, that " although pictures and |g,.. glasses, generally speaking, are part of the personal es- e'^sses: tate, yet, if put up instead of wainscot, or where otherwise wain- scot would have been put, they shall go to the heir. The house ought not to come to the heir maimed and disfigured ; Herlaken- den's case ; wainscot put up with screws shall remain with the freehold, (m) But in Beck v. Rebow, (v") determined in the subsequent year, a bill was filed in chancery, upon a covenant made by a testator, to convey a house and all things affixed to the freehold thereof. The bill alleged that the defendant, the devisee in trust of the house, had taken awaj', among other things, the pier-glasses, hang- ings, and chimney-glasses, and it was urged for the plaintiff, that these hangings, pier-glasses, and chimney-glasses, were as wain- scot, being fixed with nails and screws to the freehold ; that there was no wainscot under them ; and as they would have gone to the heir and not the executor, d fortiori they would go to the plaintiff who was as a purchaser of the house ; and Cave v. Cave was cited. But Lord Keeper Cowper was of a different opinion ; saying, that hangings and looking-glasses were only matters of ornament and furniture, and not to be taken as part of the house or freehold. Perhaps a deduction may be made from these cases, which may reconcile their apparent discrepancies, viz, that, generally, pictures and looking-glasses shall go to the executor as personal estate, al- though, strictly speaking, they may be so fixed by nails and screws to the walls as to be attached to the freehold ; but that if they are let into the wainscot, so as to take the place of panels of it, they shall * go to the heir ; because they could not be removed by the executor without disfiguring the house. The true reason to form a part of the real estate, when it and glass fixed in the wainscot of the is so affixed to the freehold as to be in- dwelling-house, and the coppers and fur- capable of severance without injury there- naces there, the court is of opinion that to; and this whether the annexation be they are not to be taken as part of the per- for use, for ornament, or from caprice, sonal estate, but are to go along with the Providence Gas Co. v. Thurber, 2 R. I. house, and be taken as part thereof, and 15; McClintock w. Graham, 3 McCord, to decree the same accordingly." Reg. 553 ; Baker v. Davis, 19 N. H. -325 ; Mur- Lib. 1704 ; A. fol. 535. See Mr. Raithby's dock V. Harris, 20 Barb. 407.] note to 2 Vern. 508 ; [Guthrie v. Jones, (() 2 Vern. 508. 108 Mass. 191.] (u) The decree was, " as to the pictures (v) 1 P. Wms. 94. [737] [738] 808 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. why they have been held to be removable, probably is that, on the principle already stated (awfe, 730), they were never part of the freehold. Lord Hardwicke, in Lord Dudley v. Lord Warde, (x) speaking ornamental of marble chimney-pieces, says, that as between landlord chimney- iiiii 'c ^ pieces: and tenant, they are removable by the latter, it erected by him, but this does not hold between the heir and the executor. They are removable, is should seem, not because they are marble, but because they are ornamental, (y) The cases of relaxation were followed by Harvey v. Harvey, (s) tapestry : in which it was held by C. J. Lee, at nisi prius, in iron baciw trover by an executor against the heir, that hangings, neys: tapestry, and iron backs to chimneys, belonged to the executor, who recovered accordingly against the heir. The inference drawn from these decisions, hj a writer of con- tables siderable accuracy, (a) is this : The law seems now to iad"s^' ^^ ^. Stewart, 1 Ad. & El. 300 ; Margetts v. [751] Barringer, 7 Sim. 482 ; Ashton v. McDou- gall, 5 Beav. 56 ; Wardle u. Claxton, 9 Sim. 524 ; Newlands v. Paynter, 10 Sim. 377 ; 4 M. & Cr. 408 ; Blacklow v. Laws, 2 Hare, 49; Beales v. Spencer, 2 Y. & Coll. C. C. 651 ; Shewell v. Dwarris, John. 172 ; Goulder v. Camm, 1 De G., T. & J. 146 ; Gilbert v. Lewis, 1 De G., J. & S. 38 ; Moore v. Morris, 4 Drew. 33 ; Spir- ett V. Willows, 34 L. J. Ch. 365 ; [S. C. 3 DeG., J. & S. 293.] As to the meaning of the word " sole " in a will, see Massy V. Rowen, L. R. 4 H. L. 288. (i) See Massey v. Parker, 2 My. & K. 174 ; Woodmeston v. Walker, 2 Russ. & M. 197 ; Brown o. Pocock, 2 Russ. & M. 210 ; Benson v. Benson, 6 Sim. 126 ; Brad- ley V. Hughes, 8 Sim. 149 ; Davies v. Thornycrof t, 6 Sim. 420 ; Tullett v. Arm- strong, 1 Beav. 1 ; Scarborough v. Borman, lb. 34 ; Clark v. Jacques, lb. 36 ; Dixon i;. Dixon, lb. 40 ; Maber v. Hobbs, 2 Y. & Coll. 317 ; Baggett v. Meux, 1 Phill. C. C. 627 ; Russell v. Dixon, 2 Drury & W. 133 ; Wright v. Wright, 2 John. & H. 647 ; [Parker v. Convei-se, 5 Gray, 336.] (j) 4 My. & Cr. 377 ; [S. C. 1 Beav. 1. The strong current of American cases sus- tains the law as established in Tullett v. Armstrong, supra. Fears v. Brooks, 12 Geo. 197 ; Robert v. West, 15 Geo. 123 ; CH. II. § III.j SEPARATE PROPERTY OF WIDOW. 821 was twofold ; viz, first, whether property could be validly given to the separate use of a woman who was single when the gift took ef- fect ; and, if that could be done, then secondly, whether she could be restrained from anticipation during the coverture, by force of a prohibition to that effect inserted in the instrument of gift. And Lord Cottenham C, after a most elaborate review of all the author- ities, decided both questions in the afi&rmative, expressing his opin- ion that they were identical as to the principle which must regulate the decision upon them. His lordship, in giving his judgment, stated, that after the most anxious consideration, he had come to the conclusion that the jurisdiction which the court of chancery has assumed in similar cases justifies it in extending it to the pro- tection of the separate estate with its qualities and restrictions at- tached to -it, throughout a subsequent coverture; though it was, no doubt, doing violence to the rules of property to say that property which, being given with qualifications and restrictions which are held to be void, belonged absolutely to the woman up to the moment of her marriage, should not be subject to the ordinary rules of law as to the interest which the husband is to take in it. (k") Again, an antenuptial settlement of money or jewels, * furniture, or other movables, made bv the husband himself of his . ^ ' •' . Antenup- own property upon the wife, will be valid, as well against tiai settie- the husband himself and volunteer claimants from him, money, as also against his creditors, (^i) Nor will it differ the by\he'hus- case that the husband was indebted at the time of mak- ''^°'^- Fellows 17. Tann, 9 Ala. 1003 ; Shirley v. St. 207; Springer v. Arundell, 64 Penn. Shirley, 9 Paige, 363 ; Waters o, Taze- St. 218 ; Hemphill v. Harford, 3 "Watts & well, 9 Md. 291 ; Nix v. Bradley, 6 Rich. S. 217 ; Craig v. Watts, 8 Watts, 499 ; Eq. 43 ; Bridges v. Wilkins, 3 Jones Eq. Quigley v. The Commonwealth, 16 Penn. 342; Beaufort v. Collier, 6 Hamph. 487 ; St. 356 ; Snyder v. Snyder, 10 Penn. St. In re Gaffee, 1 McN. & G. (Am. ed.) 541, 423; Lindsay v. Harrison, 3 Eng. 311 ; and note (2) ; Vinnedye v. Shaffer, 35 Ind. Dick v. Pitchford, 1 Dev. & Bat. Eq. 480 ; 341 ; Schafroth v. Ambs, 46 Missou. 114. Apple v. Allen, 3 Jones Eq. 342 ; Miller But a different view of the law has been v. Bingham, 1 Ired. 423 ; Gully v. Hall, 31 maintained in Pennsylvania, and some Miss. 20.] other of the American States. See Ha- {k) See, also. In re Gaffee, 1 Mac. & G. mersley v. Smith, 4 Whart. 126; McBride 541; [(Am. ed.), 550, note (1).] V. Smyth, 24 Penn. St. 250 ; Yarnall's {k^) [2 Sugden V. & P. (8th Am. ed.) Appeal, 70 Penn. St. 501 ; Dodson !;.Ball, 715, and note (k) ; De Barante v. Gott, 6 60 Penn. St. 492 ; Hepburn's Appeal, 65 Barb. 492 ; Roberts v. Roberts, 22 Wend. Penn. St. 472 ; McGargee v. Naglee, 64 140 ; Vogel v. Vogel, 22 Missou. 161. If Penn. St. 216 ; Wells v. McCall, 64 Penn. the settlement is made in good faith, and [752] 822 OP THE CAPACITY OP, AN EXECUTOR'S ESTATE. [PT. II. BK. II. ing the settlement, and that his future wife knew it ; nor that the husband had the joint-possession, as long as he lived, of the fur- niture, &c. ; (l) nor that the wife brought him no portion. («i) The same principle of equity which secures the interest of the Antenup- wife in the case of a settlement or bequest, will protect mtntln °' it when the husband agrees before marriage, by writing, writing. ^jj^^^ jjjg ^jfg ^YlhII be entitled to specific parts of her personal estate to her separate use, although the legal title be- comes vested in him by the subsequent marriage, (w^) In such a case the husband will be a trustee for the wife's separate use, and the trust will bind his executors and administrators, (w) without notice of any contemplated fraud, it cannot be impeached by creditors. In order to render the settlement void on ac- count of fraud, both parties must concur in or have knowledge of the intended fraud. If the settlor alone intends to commit a fraud, and the other party does not partic- ipate in that intent, the settlement will be valid and binding. See Andrews v. Jones, 10 Ala. 400 ; Coutts v. Greenhow, 2 Munf. 363 ; Bunnel v. -"Witherow, 29 Ind. 123 ; Frank's Appeal, 59 Penn. St. 190; Jones's Appeal, 63 Penn. St. 324 ; Tunno v. Trev- esant, 2 Desaus. 264 ; Croft v. Arthur, 3 Desaus. 223 ; Eppes v. Randolph, 2 Call, 103 ; Jones's Appeal, 62 Penn. St. 324 ; Miller v. Goodwin, 8 Gray, 542 ; SuUings ■u. Richmond, 5 Allen, 187; Tisdale a. Jones, 38 Barb. 523 ; Magniac v. Thomp- son, 7 Peters, 348.] (l) Campion v. Cotton, 17 Ves. 264; Cadogan u. Kennett, Cowp. 432, But where the husband, with the knowledge of the wife, had committed an act of bank- ruptcy before the execution of the settle- ment, and an adjudication of bankruptcy followed within twelve months, the settle- ment, though antenuptial, was held in- valid ; for, by relation, the property had ceased to be the property of the bankrupt before the settlement was executed. Fraser V. Thompson, 4 De G. & J. 659. See Btil- mer v. Hunter, L. R. 8 Eq. Ca. 46, as to where the settlement was held fraudulent as against the wife as well as the husband. (m) Brown v. Jones, 1 Atk. 190, by Lord Hardwicke. A settlement made be- tween the time of a runaway marriage in Scotland, and its re-celebration in Eng- land, cannot be considered antenuptial ; Ex parte Hall, 1 Ves. & B. 112. (ml) [See Southerland i>. Southerland, 5 Bush, 591. But in Abbott v. Winches- ter, 105 Mass. 115, it was held that a prom- issory note given by a husband to his wife before their marriage becomes a nullity on the marriage, and is not revived by the death of the husband. To the same effect, see Chapman v. Kellogg, 102 Mass. 246; Patterson v. Patterson, 45 N. H. 164; Pike V. Baker, 53 HI. 163 ; Smiley v. Smi- ley, 18 Ohio St. 543. See, however, for the law of other states, Webster v. Web- ster, 58 Maine, 139; Wright v. Wright, 59 Barb. 505 ; Logan u. Hall, 19 Iowa, 491 ; Child v. Pearl, 43 Vt. 224 ; Stone v. Gazzam, 46 Ala. 269 ; Hinney v. Phillips, 50 Penn. St. 382; Steadman w. Wilbur, 7 R. I. 481 ; Simmons v. Thomas, 43 Miss. 31 ; Petre v. State, 6 Vroom, 64, 69, 70.] (n) 2 Roper Husband & Wife, 156. But the agreement must be in writing, by reason of the 4th section of the statute of frauds enacting that no action shall be brought whereby to charge any person upon any agreement made in consideration of marriage, unless some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or by some other person by him lawfully au- thorized. Randall v. Morgan, 12 Ves. 74; Warden v. Jones, 23 Beav. 487 ; S. C. 2 De G. & J. 76 ; Goldicutt v. Townshend, 28 Beav. 445; [2 Sugden V. & P. (8th CH. II. § III.] SEPARATE PROPERTY OF WIDOW. 823 * Likewise a post-nuptial settlement of property by the husband on the wife is obligatory upon himself and all persons Posmup- claiming as volunteers from or through him. (o) And ment"'"" such a settlement will protect the property even against creditors, unless it can be considered, from the circumstances under which it was made, fraudulent as against them, (jo) With respect to Am. ed.) 718; Riley v. Riley, 25 Conn. 154; Albert v. Winn, 5 Md. 66; Bovst «. Corey, 16 Barb. 136; Reade v. Livingston, 3 John. Ch. 481 ; Kirksey v. Kirksey, 30 Geo. 156 ; Lassence v. Tierney, 1 Mac. & G. 551, and cases in note (2), 571 ; Ham- mersley u. Bavon De Biel, 12 CI. & Fin. 45 ; Surcome u. Pinniger, 3 De G., M. & G. 571, note (1), and cases.] These and other authorities have overruled Dundas K.Dnters, 1 Vcs.jr. 199. But if a man, on his marriage with a lady, enters into a mere parol agreement with her, that a sum of money shall be transferred to trustees upon trust for himself, his intended wife, and the children of the marriage, and the money is, before the marriage, actually transferred to the trustees, who hold it solely upon the trusts agreed upoj, the fact that the instrument declaring the trusts is executed by them subsequently to the marriage, does not make it a volun-, tary instrument, and enable creditors to set it aside. Cooper v. Wormald, 27 Beav. 270. Indeed, if the non-reduction into writing be owing to the fraudulent con- duct of the husband, equity will relieve. Lady Montacute v. Maxwell, 1 P. Wms. 620 ; S. C. 1 Stra. 236 ; 1 Eq. Cas. Abr. 19. (o) See Curtis o. Price, 12 Ves. 89 ; [Riley v. Riley, 25 Conn. 154; Paschall v. Hall, 5 Jones Eq. 108 ; Teasdale v. Teas- dale, 2 Bay (S. Car.), 546; Bertrand u. Elder, 23 Ark. 494 ; Gardner a. Baker, 25 Iowa, 343; Kuhn v. Stansfield, 28 Md. 210 ; Jones v. Morgan, 6 La. Ann. 631.] (jt)) [Picquet v. Swan, 4 Mason, 443; Riley u. Riley, 25 Conn. 154; Rogers v. Ludlow, 3 Sandf. Ch. 104; William & Mary College v. Powell, 12 Grattan, 372 ; Butler V. Rickets, U Iowa, 107; Wright V. Wright, 11 Iowa, 107; Williams v, Avery, 38 Ala. 115; Wiley v. Gray, 36 Miss. 510 ; Albert v. Winn, 5 Md. 66 ; Leav- itt V. Leavitt, 47 N. H. 329 ; Larkin v. McMulIin, 49 Penn. St. 29; Woolston's Appeal, 51 Penn. St. 452 ; Barker v. Kone- man, 13 Cal. 9; Scogin v. Stacy, 20 Ark. 265; Clayton v. Brown, 30 Geo. 490; Rey- nolds ... Lansford, 16 Texas, 286.] The statute 27 Eliz. u. 4, makes all voluntary settlements null and void against purchas- ers, but does not relate to creditors, and extends only to lands, tenements, and hereditaments. The statute 13 Eliz. u. 5, which relates to creditors, directs that no act whatever done to defraud a creditor or creditors shall be of any effect agaipst such creditor or creditors. Therefore the statute does not militate against any trans- action bona fide, and where there is no im- agination of fraud ; and so is the common law. Cadogan u. Kennett, Cowp. 434, by Lord Mansfield. See, also. Walker v. Burrows, 1 Atk. 93 ; 1 Smith's Leading Cas. 9 et seq. ; Turnley v. Hooper, 3 Sm. & G. 349. The principle now established is this : The language of the act being, that any conveyance of property is void against creditors, if it is made with intent to defeat, hinder, or delay creditors, the court is to decide in each particular case whether, on all the circumstances, it can come to the conclusion that the intention of the settlor in making the settlement was to defeat, hinder, or delay his cred- itors. Thompson v. Webster, 4 Drew. 628, by Kindersley V. C. But it is not necessary to show from anything actually said or done by the party, that he had the express design by the deed to defeat cred- itors. If he includes in it property to such an amount that the court is satisfied, hav- ing regard to the state of his property, and to the amount of his liabilities, its effect might probably be to delay or defeat [753] 824 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. what is SO regarded, if the debts * of the husband, at the time of making the settlement, were considerable, and the effect of the settlement is substantiated, would be to defeat the creditors of their demands, then such settlement is void as fraudulent, (cf) And if the husband, though not indebted at the very time, be- comes so shortly afterwards, so that it may be presumed that he made the settlement with a view to being indebted at a future time, it is equally to be considered as fraudulent, (r) But, gen- Eegister, 4 Minn. 391 ; Coolidge v. Melvin, 42 N. H. 531 ; Freeman v. Burnham, 36 Conn. 469 ; Gridley v. Watson, 53 111. 186 ; Stewart v. Kogers, 25 Iowa, 395 ; Hunters V. Waite, 3 Grattan, 26 ; Church v. Cha- pin, 36 Vt. 223 ; BUinger ;;. Crowl, 17 Md. 361 ; Kuhn v. Stansfield, 28 Md. 210; Chambers o. Spencer, 5 Watts, 406 ; 2 Sugden V. & P. (8th Am. ed.) 714, note (t), where this subject is fully discussed and the cases cited ; Mackay v. Douglass, L. R. 14 Eq. 106; Bridgford v. Riddell, 55 111. 261 ; Sims v. Rickets, 35 Ind. 181 ; Bancroft v. Curtis, 108 Mass. 49, and cases cited ; Annin v. Annin, 24 N. J. Eq. 185; Phelps V. Morrison, 24 N. J. Eq. 195. In the ^ove case of Spirett v. Willows, 3 De G., J. & S. 293, 303, Lord Westbury said : " It is obvious that the fact of a vol- untary settlor retaining money enough to pay the debts vrhich he owes at the time of making the settlement, but not actually paying them, cannot give a different char- acter to the settlement or take it out of the statute. It still remains a voluntary alien- ation or deed of gift, whereby in the event creditors, the deed is within the statute. Jenkyn v. Vaughjin, 3 Drew. 424; Eree- man v. Pope, L. R. 5 Ch. App. 538. [But any presumption of fraud arising from the mere fact that the settlor was in- debted at the time of making a voluntary settlement may be rebutted. Thacher ». Phinney, 7 Allen, 146; Lerow v. Wil- marth, 9 Allen, 382 ; Woolston's Appeal, 51 Penn. St. 542 ; Babcock v. Eckler, 24 N. Y. 623 ; Case v. Phelps, 39 N. Y. 164 ; Kent V. Riley, L. R. 14 Eq. 190.] (q) Beaumont u. Thorp, 1 Ves. sen. 27 ; 1 Rop. Husband & Wife, 309. See, also. Holmes v. Penney, 3 Kay & J. 90 ; Barrack v. M'Cullock, lb. 110; Acraman , V. Corbett, 1 John. & H. 41 1 ; French v. French, 6 De G., M. & G. 95 ; Christy v. Courtenay, 26 Beav. 140; [Belford v. Crane, 16 N. J. Eq. 265. The doctrine is thus expressed by Lord Weatbury L. C. in Spirett V. Willows, 3 De G., J. & S. 293, 302 : " If the debt of the creditor by whom the voluntary settlement is im- peached existed at the date of the settle- ment, and it is shown that the remedy of the creditor is defeated or delayed by the the remedies of creditors are delayed, hin- existence of the settlement, it is immate- rial whether the debtor was or was not solvent after making the settlement." See the remaiks of Lord Hatherly L. C. and Gifford L. J. in Freeman o. Pope, L. R. 5 Ch. Ap. 543, 544, upon, and in limitation of the doctrine thus expressed. See, also. Bellows J. in Pomeroy v. Bailey, 43 N. H. 122; Potter v. McDowell, 31 Missou. 62 ; Norton v. Norton, 5 Cush. 524 ; Brackett V. Waite, 4 Vt. 389; Van Wyck v. Seward, 18 W;end. 375; S. C. 6 Paige, 62; Bab- cock V. Eckler, 24 N. Y. 623; Reade v. Livingston, 3 John. Ch. 481 ; Tilley v. [754] dered, or defrauded." But it is said in Babcock v. Eckler, 24 N. Y. 623, that when the settlor retains a large amount, more than enough to pay his existing debts, the presumption of fraud is suiB- ciently rebutted. See Kipp v. Hanna, 2 Bland, 26 ; Taylor v. Eubauks, 3 A. K. Marsh. 239; Hopkirk v. Randolph, 2 Brock. 132 ; Brookbank v. Kennard, 41 Ind. 339 ; Moritz v. Hoffman, 35 111. 553 ; Miller v. Johnson, 27 Md. 6; Townsend V. Maynard, 45 Penn. St. 198; Tripner v. Abrahams, 47 Penn. St. 220.] (r) Stilemau v. Ashdowu, 2 Atk. 481, CH. II. § III.] SEPARATE PROPERTY OF WIDOW. 825 erally speaking, debts subsequently incurred will not defeat a post- nuptial settlement ; (s) nor will any presumption of fraud against creditors arise from the debts of the husband owning at the time, if they were of inconsiderable amount ; (f) or if, though consid- erable, the payment of them is secured, as upon mortgages or by other means ; (u) or if the settlement itself provides for their payment, (x) Besides the presumptive evidence of fraud arising from the sit- uation of the husband, with respect to his debts, at the date of a postnuptial settlement, it has also been considered as a badge of fraud towards creditors, that the husband reserves to himself by the provisions of it, a power of revoking the limitations of the property in favor of the * wife. («/) So fraud may be presumed by Lord Hardwicke; Barling v. Bishop, 29 Bear. 417. (s) Townsliend v. Wyndham, 2 Ves. sen. 10, by Lord Hardwicke ; Kidney v. Couss. maker, 12 Ves. 136 ; Battersbee o. Far- rington, 1 Swanst. 106 ; Holloway v. Mil- lard, 1 Madd. 414. See Spirett v. Wil- lows, 34 L. J. Ch. 36.') ; [3 De G., J. & S. (Am. ed.) 293, note (2) and cases cited;] Freeman v. Pope, L. R. 5 Ch. App. 538 ; Hare v. Gardner, L. E. 7 Eq. Cas. 317. [In Spirett v. Willows, 2 De G., J. & S. 293, 302, 303, Lord Westbury L. C. said : " If a voluntary settlement or deed of gift be impeached by subsequent creditors whose debts had not been contracted at the date of the settlement, then it is necessary to show either that the settlor made the settlement with express intent " to delay, hinder, or defraud creditors, " or that after the settlement the settlor had no sufficient means or reasonable expectation of being able to pay his then existing debts, that is to say, was reduced to a state of insol- vency ; in which case the law infers that the settlement was made with intent to delay, hinder, or defraud creditors, and is therefore fraudulent and void." See S- C. 3 De G., J. & S. (Am. ed.) 293, note (2) and cases cited; 2 Sugden V. & P. (8th Am. ed.) 714, note (t) and cases cited; Kindersley V. C. in Jenkyn v. Vaughan, 3 Drew. 419 ; James V. C. in Freeman v. Pope, L. R. 9 Eq. 206 ; Thompson v. Web- ster 4 Drew. 628 ; Phillips ?;. Wooster, 36 N. Y. 412 ; Holmes v. Clark, 48 Barb. 237 ; Thatcher v. Phinney, 7 Allen, 146 ; Case u. Phelps, 39 N. Y. 164; Crossley v. El- worthy, L. R. 12 Eq. 158 ; Carter v. Grim- shaw, 49 N. H. 100, 105, 106 ; McLane v. Johnson, 43 Vt. 48; Bridgford v. Riddell, 55 111. 261.] (() Lush V. Wilkinson, 5 Ves. 384, in which case Lord Alvanley intimated that the validity of the settlement will depend on the fact whether the husband was sol- vent at the time of making it. But it has been since held that it is not necessary to prove insolvency, though the mere exist- ence of some debt is not sufiScient. Town- send u. Westacott, 2 Beav. 340 ; Skarf v. Soulby, 1 Mac. & G. 364 ; [Malins V. C. in Smith v. Cherrill, L. R. 4 Eq. 389, 395 ; Norton v. Norton, 5 Cush. 524 ; Smith v. Yell, 3 Eng. 470 ; Potter v. McDowell, 31 Missou. 62 ; Dewey J. in Parkman v. Welch, 19 Pick. 231, 235 ; Wilson v. How- ser, 12 Penn. St. 109 ; Wilson o. Bu- chanan, 7 Grattan, 334 ; Worthington v. BuUett, 6 Md. 172 ; S. C. 2 Md. Ch. 99 ; Parish v. Murphree, 13 How. 92 ; Hudnal V. Wilder, 4 McCord, 294 ; M'Elwee v. Sut- ton, 2 Bailey, 128 ; Robinson v. Stewart, 10 N. Y. 1 89 ; Bridgford v. Riddell, 55 111. 261 .] (w) Stephens v. Olive, 2 Bro. C. C. 90. {x) George f. Milbanke, 9 Ves. 194. [y] 1 Roper Husband & Wife, 318, Ja- cob's ed. [755] 826 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. from the fact, that notwithstanding the postnuptial settlement purports to be an absolute transfer of personal property, the hus- band continues in possession of it, (a) unless, indeed, his possession be bond fide consistent with the nature of the settlement, (a) Where the settlement after marriage by the husband upon the wife is made for a valuable consideration, the presumption of fraud fails, though the husband be indebted at the time, (a^) Thus, if the settlement be made in consideration of her father, or some other person, advancing a sum of money, (5) or on occasion of an increase of fortune falling to her, (c) or in consideration of her relinquishing any valuable interest, as her jointure, (i^) or dower, (e) or property secured to her for her separate use ; (/) in all these cases the settlement will be valid against creditors, un- less the property settled so much exceeds the consideration in value, that from its inadequacy it appears that a fraud was in- tended on the creditors. (^) («) That the continuance in possession is a badge of fraud, see Twyne's case, 3 Co. 81 a ; Edwards v. Harben, 2 T. R. 587 ; Bamford v. Baron, lb. 594, in note (a); [Benj. on Sales (1st Am. ed.), § 484 et seq. ; Bellows C. J. in Putnam v. Osgood, 52 N. H. 148, 153 et seq.; Cool- idge w. Melvin, 42 N. H. 510; Rothchild V. Eowe, 44 Vt. 389.] (a) Kidd v. Rawlinson, 4 Bos. & Pull. 59 ; Lady Arundell v. Phipps, 10 Ves. 139; Colvile u. Parker, Cro. Jac. 158. See Eastwood v. Brown, Ryan & M. 312 ; Martindale v. Booth, 3 B. & Ad. 498 ; 1 Smith's Leading Cases, p. 9 et seq. ; Alton u. Harrison, L. E. 4 Ch. App. 622 ; [Bel- lows C. J. in Putnam v. Osgood, 52 N. H. 154; Morse v. Powers, 17 N. H. 296 ; Colt J. in Ingalls v. Herrick, 108 Mass. 353, 354; Brooks o. Powers, 15 Mass. 244; Benj. on Sales (1st Am. ed.),§§486, 502.] ■ (a^) [See Hunt v. Johnson, 44 N. Y. 27 ; Barnum v. Earthing, 40 How. (N. Y.) Pr. 25 ; Duffy v. Ins. Co. 8 "Watts & S. 413.] (h) Colvile V. Parker, Cro. Jac. 158; Eamsden v. Hylton, 2 Ves. sen. 308, in Lord Hardwicke's judgment; Brown v. Jones, 1 Atk. 190; Wheeler v. Caryl, 1 Ambl. 121. (c) 1 Roper Husband & Wife, 323, 2d ed. The court of chancery will order an additional settlement to be made on the wife on an increase of fortune falling to her, which will bind both the creditors and purchasers of the husband. lb. {d) Cottle c. Eripp, 2 Vern. 220 ; Scot V. Bell, 2 Lev. 70. («) Per curiam in Lavender v. Black- stone, 2 Lev. 147. See, also, Hewison v. Negus, 16 Beav. 598, by Lord Langdale. (/) Lady Arundell v. Phipps, 10 Ves. 139. [When a husband owes his wife money he may make a bona fide convey- ance of land to her. Peiffer n. Lytle, 58 Penn. St. 286.] (g) Ward v. Shallet, 2 Ves. sen. 16 ; Dewey v. Bayntum, 6 East, 257. What is a reasonable proportion or value be- tween the thing given or paid, and that settled in consideration of it by the husT band, is a calculation and result depend- ent upon each case in connection with col- lateral circumstances. The question is incapable of a general definite answer; and when the court is unable to draw the conclusion, the fact must be ascertained by a jury. 1 Roper Husband & Wife, 327, 2ded. CH. II. § III.] SEPARATE PROPERTY OF WIDOW. 827 On the same ground, when a postnuptial settlement * is made in pursuance of a written agreement before marriage, it is valid against creditors ; for the contract of marriage is a valuable con- sideration, and establishes the settlement against every one ; (A) but if the agreement before marriage is verbal only, though the settlement after marriage is in pursuance of it, such agreement will not support the settlement against creditors, (i) When a settlement is made after marriage, and there being creditors at the time, it is on that account declared fraudulent, the property so settled becomes part of the assets, and all subsequent creditors are let in to partake of it. (/ ) And it should seem that the subsequent creditors may assert their rights as plaintiffs : (Jc) at all events, if any debt, which was due at the time of the execu- tion of the deed still remains unsatisfied, (l) Besides the means already described of the acquirement of separate property, by a wife, she may also do so by car- Separate rying on trade apart from her husband, on her separate acquired account, either in consequence of an express agreement ^Jp^afg'^ between her and her husband before marriage, or from trading. his permission after marriage, (m) There is an important distinc- (h) 1 Roper, 306, 2d ed. ; [Belford v. Crane, 16 N. J. Eq. 265; 2 Sagden V. & P. (8th Am. ed.) 718 ; Saunders v. Ter- rill, 1 Ired. (Law) 97 ; Gaines v. Marley, 2 Yerger, 582 ; Rogers v. Hull, 4 Watts, 359. In Smith v. Allen, 5 Allen, 454, it was held that a legal contract and prom- ise of marriage made in good faith by a woman to one who has executed to her a deed of land, for the purpose of inducing her to marry him, furnishes a good con- sideration for the deed ; and she will be entitled to hold the land against his cred- itors, although- the marriage is prevented by his death. See S terry v. Arden, 1 John. Ch. 261; 4 Kent, 463; Huston v. Cantril, 11 Leigh, 176.] (t) Ante, 752, note [n) ; [2 Sugden V. & P. (8th Am. ed.) 718; Izard «. Izard, 1 Bailey (S. Car.) Ch. 228; Wood v. Savage, 2 Doug. (Mich.) 316; Borst v. Corey, 16 Barb. 136; Davidsons. Graves, Riley (S. Car.) Ch. 219; Simpson v. Graves, Riley (S. Car.) Ch. 232.] (j) Walker v. Furrowes, 1 Atk. 94, by Lord Hardwicke. Taylor v. Jones, 2 Atk. 600 ; Montague v. Sandwich, 12 Ves. 156, 2d edition, note (52) to Kidney v. Couss- maker ; [post, 1679, and notes.] (k) Jenkyn v. Vaughan, 3 Drew. 419. See Reese River Silver Mining Company i;. Atwell, L. R. 7 Eq. Ca. 347. In Lush V. Wilkinson, 5 Ves. 387, Lord Alvanley said it was very extraordinary for a sub- sequent creditor to come with a fishing bill, in order to prove antecedent debts. But see Richardson v. Smallwood, 1 Rop. 313, note (c), Jacob's edition, and the rest of the note, and Atherley's note to the Touchstone, p. 66. (l) Jenkyn v. Vaughan, H. T. 1856, by Kindersley V. C. 3 Drew. 419. (m) See Haddon u, Eladgate, 1 Sw. & Tr. 48; ante, 61, note (5). Any agree- ment with, or permission from her hus- band, is not now necessary, by the mar- ried woman's property act (33 &' 34 Vict. c. 93, s. 1). See ante, 748, note (c). [756] 828 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. U. tion, * with respect to the estate of the executor of the husband, between the wife's right to property acquired in the two cases. When the agreement is made previously to marriage, since the consideration is valuable, the transaction will not only be obliga- tory upon the husband and his executors, but also binding upon his creditors ; when the agreement originates during the marriage, it will be void against his creditors, but good against himself, (w) In the case of the wife's being a sole trader within the city of London, according to the custom there, the husband can do no act to prevent the creditors of the wife being satisfied out of her prop- erty in trade ; but when these demands are satisfied, he may, at law, possess himself of the surplus of her propert}'- ; for the custom does not extend to prevent him. (o) But there may be a question whether a court of equity would not consider this surplus as the wife's separate property, (p) The savings arising from the separate property of the wife will g^ jjj not form a part of the estate of her husband's executor ; &c. from for " the sprout is to savor of the root and go the same Wll6 S S6D3.~ rate prop- Way." (g') And so jewels, or other things, bought by the wife, vdth money arising out of her separate prop- erty, will not be assets liable to the husband's debts, (r) But as she * is entitled to deal with her separate estate as she pleases, if (li) 2 Rop. 165, 2d ed.; [Rogers v, per Lord Cowper C; Sir Paul Neal's case, Fales, 5 Penn. St. 157.] Prec. Chan. 44; but see Lady Tyrrell's (o) Lavie u. Phillips, 3 Burr. 1785, by case, 1 Ereem. 304; post, 761, note (j). Yates J. See, also, Carne v. Brice, 7 M. & W. 183, ip) 2 Rop. Husband & Wife, 125, 2d where it was held that clothes bought by ed. the wife out of money settled to her sep- (}) Gore V. Knight, 2 Vern. 535. Sir arate use might be taken in execution for Paul Neal's case, cited in Herbert v. Her- her husband's debts. See, likewise, Mes- bert, Prec. Chanc. 44 ; [Barron v. Barron, senger v. Clarke, 5 Ex. 388 ; Bird v. Pea- 24 Vt. 375 ; Richardson v. Estate of Mer- grnm, 13 C. B. 639. But these decisions rill, 32 Vt. 27 ; Miller v. Williams, 5 Md. at law do not conclude the question as 226, 236 ; Rush v. Vought, 55 Penn. St. to the rights of the wife in equity. Ac- 437 ; Towers v. Hagner, 3 Whart. 57 ; cordiugly in Brooke w. Brooke, 25 Beav. Yardly v. Raub, 5 Whart. 123 ; Rogers v. 342, husband and wife had for many years Fales, 5 Penn. St. 104 ; Young v. Jones, 9 lived, and were still living separate. He Humph. 551 ; Gentry v. McReynolds, 12 remitted money for her maintenance and Missou. 533 ; Hoot u. Sorrell, 11 Ala. 386; support. She saved a considerable por- Kee V. Vasser, 2 Ired. Eq. 553 ; Merritt v. lion. And it was held by Romilly M. Lyon, 3 Barb. 110.] So as to her savings R. that the husband could not recover out of her alimony. Moore v. Barber, 34 back these savings ; for that the remit- L. 3. N. S. Ch. 482. tances must, as against the husband, be (r) Willson v. Pack, Prec. Chan. 297, treated as her separate estate. [757] [758] CH. II. § III.] SEPARATE PEOPERTY OF WIDOW. 829 she directly authorizes any moneys which for a part of it, or the savings arising from it, to be paid to her husband, he is entitled to receive them, and she can never recall them, (s) The general rule of law, derived from the unity of person, is, that gifts from the hushand to the wife are void, (s^) gj^g from " But in courts of equity," Lord Hardwicke says in JJ^ndto'the Lucas V. Lucas, (f) "gifts between husband and wife ^'''f<== have often been supported, though the law does not allow the property to pass. It was so determined in the case of Mrs. Hun- gerford, and in Lady Cowper's case, before Sir Joseph Jekyll, where gifts from Lord Cowper, in his lifetime, were supported, and reckoned by this court as a part of the personal estate of Lady Cowper." (m) And his lordship proceeded to decree that the defendant in the cause, a widow, was entitled to 1,000Z. South Sea annuities, trans- ferred by her husband, in his lifetime, into the name of his wife, as a valid gift against the husband and his representatives. («) (s) Caton V. Hideout, 1 Mac. & G. 599. But see, also, Darkin v. Darkin, 17 Beav. 578. (si) [See Manny v. Rixford, 44 111. 129 ; Woodson V. Pool, 19 Missou. 340. This common law rule is abrogated in New York, by N. Y. Laws, 1862, c. 343. Raw- son V. Pennsylvania R. R. Co. 2 Abb. Pr. N. S. 220.] (t) 1 Atk. 271. See, also, 3 Atk. 393. (m) See, also. Sir Thomas Plumer's judgment in Walter v. Hodge, 2 Swanst. 104 ; S. C. 1 Wils. Ch. Cas. 445. Though the property does not pass at law, yet, in equity, a husband, being the owner at law, may become a trustee for his wife ; and if by clear and irrevocable acts he has made himself such trustee, the gift to his wife will be conclusive. Mews v. Mews, 15 Beav. 533, by Romilly M. R. ; Grant u. Grant, Rolls, July 10, 1865, 11 Jar. N. S. 787 ; S. C. 34 L. J. Ch. 641 ; [George v. Spencer, 2 Md. Ch. 353 ; Eddins v. Buck, 23 Ark. 507 ; Peck v. Brummagin, 31 Cal. 440 ; Jennings u. Davis, 31 Conn. 134 ; Underbill v. Morgan, 33 Conn. 105 ; Churchill v. Corker, 25 Geo. 479 ; Claw- son V. Clawson, 25 Ind. 229 ; Skillmah v. Skillman, 13 N. J. Eq. 403; Wells v. Treadwell, 28 Miss. 717; Herr's Appeal, 5 Watts & S. 494 ; Paschall v. Hall, 5 Jones (N. Car.), 108 ; Dale v. Lincoln, 62 111. 22 ; ante, 752, note (ml) ; Coates v. Gerlach, 44 Penn. St. 43 ; Chapman y. Kellogg, 102 Mass. 246, 248, and cases cited; Lord v, Parker, 3 Allen, 129 ; Ing- ham u. White, 4 Allen, 412, '41 5; Vance u. Nagle, 70 Penn. St. 176; Sims u. Rickets, 35 Ind. 181 ; Beard v. Dcdolph, 29 Wis. 136 ; Simmons v. Thomas, 43 Miss. 31. It is well settled in Mississippi, that husband and wife may have direct pecuniary dealings with each other and that the latter may become the creditor of the former. Butterfield v. Stanton, 44 Miss. 15; Thoms u. Thoms, 45 Miss. 263. See Mayfield v. Kilgour, 31 Md. 240; Savage o. O'Neil, 44 N. Y. 298; Simmons v. Thomas, 43 Miss. 31.] (v) See, also. Lord Hardwicke's notice of this case, in Graham v. Londonderry, 3 Atk. 393. But see, likewise, 2 Sm. & G. 197; [Scott V. Simes, 10 Bosw. 314; Wil- liams 0. MauU, 20 Ala. 721 ; Booker v. Booker, 32 Ala. 473 ; Barron v. Barron, 24 Vt. 375; Pinney w. Fellows, 15 Vt. 525; Wood V. Warden, 20 Ohio, 518; Hutton V. Duey, 3 Penn. St. 100 ; Resor V. Resor, 9 Ind, 347.] 830 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. 11. BK. II. So stock purchased by a man in the name of himself and his stock, &o. wife, was, on his death, held by the vice chancellor * (Sir by husband John Leach) to go to her as the survivor, (x) And in name^s of ^ similar case, Lord Eldon C. said it was primd facie '^'jf^^j'?'"^ a gift to herself in the event of her surviving, unless her name: evidence of Contemporaneous acts, showing a contrary intention, were produced. (?/) So where the husband lends out money upon securities taken in the names of himself and wife, and dies, the wife is entitled by survivorship, if there are sufficient assets without this money to pay debts, (s) And, generally, where a husband purchases personal property in the name of his wife, or in their joint names, it will be presumed, in a case clear of fraud, to have been intended as an advancement and provision for the wife, and on surviving her husband she will be entitled, unless he has aliened the property in his lifetime, (a) (x) Lorimer v. Lorimer, MSS. Mr. Bearaes, note (46) to Eider v. Kidder, 10 Ves. 367, 2d ed. [In Draper v. Jackson, 16 Mass. 480, Jackson J., in a very elab- orate opinion, sustained the doctrine that the husband might by his act authorize a as for payments made by her, which pay- ments were entered in the book of the bank, as made by the wife, and a certificate was issued to her as owner of the shares. The husband afterwards purchased shares in the same bank, in his own name, and contract in the joint names of himself sometimes pledged the same to the bank as and wife, and that such a contract would inure to the benefit of the wife, if she sur- vived her hlisband. Dewey J. in Phelps V. Phelps, 20 Pick. 559, 560 ; Sanford v. Sanford, 5 Lansing, 486 ; S. C. 61 Barb. 293. In Michigan, securities taken by a husband in his own name for money of security for loans made to him, but never so pledged, nor proposed so to pledge, the shares that stood in his wife's name. He received dividends as long as he lived, on the shares that stood in his own name and on those that stood in the name of his wife, and always requested the cashier of his wife, belong after her death to her the bank to give him the money in two administrator. Leiand v. Whitaker, 23 Mich. 324. See Dayton v. Fisher, 34 Ind. 356.] (y) Wilde v. Wilde, MS. 1 Eop. Hus- band & Wife, by Jacob, 54. See, also, ac- cord. Dummer v. Pitcher, 5 Sim. 35; 2 My. & K. 262 ; Coates v. Stevens, 1 Y. & Coll. 66 ; Low V. Carter, 1 Beav. 426 ; Vance v. "Vance. 1 Beav. 605; Williams V. Davies, 33 L. J., P. M. & A. 127. (z) Christ's Hospital v. Budgin, 2 Vern. 683. [A husband subscribed for shares in the stock of a bank, and on paying the instalments he stated that the shares be- longed to his wife, and that she would have something to support her if he should spend all his property. He took receipts [769] distinct and separate sums, and he some- times asked for particular kinds of money for his wife in payment of the dividends on the shares that stood in her name. It was held that the wife, upon her hus- band's death, was entitled, as against his heirs-at-law, to hold the shares that stood in her name, as her own property, these having been a gift thereof to her by her husband, valid as against all persons ex- cept his creditors, who might resort to the shares for payment of these debts if he did not leave other property sufiHeient to pay them. Adams v. Brackctt, 5 Met. 280.] [a) Kingdon v. Bridges, 2 Vern. 67 ; Glaister v. Hewer, 8 Ves. 199. So where CH. n. § III.J SEPARATE PROPEKTY OF WIDOW. 831 But where the widow seeks to establish a gift from her husband in his lifetime, she must adduce evidence beyond suspi- what is cion ; (6) and nothing less will do than a clear irrevo- Ividence of cable gift, either to some person as trustee, or by some |J^|ba,^J[ to clear and distinct act of his, by which he divested him- '»''*'=■ self of the property, and engaged to hold it as trustee for the separate use of his wife, (c) a man from time to time gave his wife sums of money, part of which accumulated as stock in his name, and he received the dividends and paid them to her, and in every way treated the stock as her sep- arate property, it was held by Sir Cress- well Cressvvell that the wife had acquired a separate estate, of which the husband had considered himself trustee for her, and to which the jus disponendi attached. In the Goods of Smith, 1 Sw. & Tr. 125. [See notes (z), above, and (c), below ; Rynders v. Crane, 3 Daly, 339.] (6) Walter v. Hodge, 2 Swanst. 92 ; S. C. 1 Wils. Ch. Rep. 445 ; [Paschall v. Hall, 5 Jones Eq. 108.] (c) M'Lean v. Longlands, 5 Ves. 79, by Lord Alvanley. See, also, 2 Swanst. 104 ; Mews u. Mews, 15 Beav. 329 ; Hoyes v. Kindersley, 2 Sm. & G. 195. [See Criss- man v. Crissman, 23 Mich. 217; Wood- ford a. Stephens, 51 Missou. 443; Sims v. Rickets, 35 Ind. 181 ; Thompson v. Mills, 39 Ind. 528; Trowbridge v. Holden, 58 Maine, 117. In Stanwood u. Stanwood, 17 Mass. 57, it appeared that the wife at the time of her marriage held in her own right nine shares in a bank, the charter of which having subsequently expired, her husband subscribed in her name for five shares in a new bank, to which the hold- ers of shares in the old bank were per- mitted to subscribe to » limited extent, leaving four hundred dollars due to the wife for the remainder of her shares. This amount thus due was entered in the books of the bank to the credit of the husband as a deposit by him, and a book stating the deposit was delivered to him ; and thus it remained at the time of his death. This money, the wife claimed, had never vested in her husband. To rebut the infer- ence of reduction to possession by the hus- band, arising from the facts above stated, it was shown that at the time when the money was placed to the credit of the hus- band in the books of the bank, he stated that it was not his money but his wife's ; that he did not want the money, but would leave it in the bank for her. The court held that there was no reduction of the property to the possession of the husband, inasmuch as he disaffirmed at the time any such purpose. So in Phelps v. Phelps, 20 Pick. 556, it appeared that a married woman lent the interest accruing after her marriage upon a note held by her before her marriage, and the borrower gave her therefor his promissory note, which was made payable to her, in accordance with the wishes of her husband, in order that she might be the exclusive owner thereof; and the husband frequently declared that the money, as well as the interest thereon, was her separate property, and that he did not intend to claim or receive any part thereof to his own use ; but he also stated to a thi^d person that no agreement had been made with the wife in relation to the money, either before or after the marriage. After the death of the husband, the maker of the note paid to the wife the amount due thereon, she having retained the note in her custody ; and it was held that she was entitled to retain the amount so paid, for her own use, as against the executor of her husband. See the facts of Adams v. Brackett, stated supra, note {z). In Ver- mont a husband may surrender to his wife the right to her personal property which the law gives him as her husband, by an antenuptial contract to that effect ; by allowing her to claim and control for a long time property given to her during the 832 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. H. BK. II. *In a case, however, where a husband gave directions to his bankers to invest a sum of money in the funds, in the joint names of himself and wife, and their brokers accordingly made the pur- chase ; Lord Langdale M. R. held that the wife was entitled to the stock by survivorship, although the husband died after the contract, but before the transfer had been completed, (d') Those gifts of money by the husband to the wife for clothes, or Pin- *° purchase ornaments, or for her separate expenditure, money: which are usually called pin-money, (e) will be good in equity. as against the husband, and all volunteer claimants through him. (/) Similar allowances have been supported in equity ; as where the , . ., husband voluntarily allowed the wife to dispose and and similar *' ^ allowances make profit of all such butter, eggs, poultry, pigs, fruit, band to and other trivial matters arising from a farm (over and "^^ ^' besides what was used by the family) for her own sep- arate use, calling it her pin-money ; out of which the wife saved lOOL ; which the husband borrowed, and died ; Lord Chancellor Talbot decreed, that there being no deficiency of assets to pay debts, the widow should come in as a creditor for the lOOZ. ; and the court mentioned the case of Calmady v. Calmady, where there was a like agreement made betwixt husband and wife, that, upon every renewal of a lease by a husband, two guineas should be paid by the tenant to the wife, and this was allowed to be her separate money. (^) See also in Mangey v. Hungerford, (K) the wife had saved a considerable sum of money out of housekeeping, and in a suit instituted against her for a discovery of what she had saved, she insisted by answer that she was not bound to * make such a dis- covery ; and upon exceptions to the answer, it was held sufficient by Lord King. coverture as her separate property, and (d) Vance v. Vance, I Beav. 605. refraining to exercise the right which the (e) As to the nature of pin-money, law gives him to take from her such prop- see the elaborate observations of Lord erty and use it as his own ; and by mak- Brougham C. in Howard v. Digby, 8 ing gifts himself to his wife. Bent v. Bligh, 224 ; S. C. 2 CI. & Ein. 634. Bent, 44 Vt. 555. See Hoyt u. Parks, 39 (/) 2 Roper Husband & Wife, 132, 2d Conn. 357 ; Teague v. Downs, 69 N. Car. ed. 280 ; Towler v. Rice, 31 Ind. 258 ; Bergey's (g) Slanning v. Style, 3 P. Wms. 339 ; Appeal, 60 Penn. St. 408 ; Child u. Pearl, [Hubbard J. in Adams v. Brackett, 5 43- Vt. 224 ; Goree v. Walthall, 44 Ala. Met. 285.] 161 ; Goodrich v. Goodrich, 44 Ala. 670.] (A) 2 Eq. Cas. Abr. 136, in margine. [760] [761] CH. II § III.] SEPARATE PROPERTY OF WIDOW — PIN-MONEY. 833 There has already (i) been occasion to show that, property under the divorce act, 1857, s. 25, property acquired by bj-wife a wife, after obtaining a protection order, may be dis- tection or-" posed of by her in all respects as a feme sole. mvorce^"^ It often happens that pin-money is settled on the wife *"'• by agreement previous to marriage; in which case it savings out falls under a different consideration ; and upon the prin- money" and ciples already explained, the savings by the wife out of "o^a'tices it will be protected as her separate property, not only ^i*^" jj*- against the husband and volunteer claimants through band's . . . debts : him, but also from his creditors. But if the wife, by good management, effect savings out of her pin-money or other allowance made by the husband, not in pursuance of an ante- nuptial contract, such savings, as well as jewels so purchased by the wife out of them, will not, it should seem, be exempt from the husband's debts, but will be assets for the purpose of satisfying them, in the hands of his executors, (y) although protected from voluntary claims. If pin-money be in arrear, and the husband dies, the wife may claim the arrears against her husband's representatives ; arrears of though such claim cannot, generally speaking, be carried P'n-'noney, farther back than one year's income ;'{]€) which restric- coverabie. tion appears to have been founded partly on a supposed satisfac- tion by acquiescence, on the notion of the consent of the wife, to make it a common fund for the expense of the family ; (l) and partly on the consideration, that the money * is meant for the dress and ornament of the wife, in a mode suitable to the degree of the husband, so as to maintain his dignity, and not for the accumula- tion of the fund ; so that if the wife does not choose to expend the money for the purpose to which it was appropriated, viz, to support his and her rank in society, she cannot justly claim the arrears of it. Qm) Again, if pin-money be in arrear, and the wife (i) Ante, 59. Freeman, to be effectually overruled by 0') Willson u. Pack, Prec. Chan. 297; Herbert u. Herbert, and Wilson v. Peck, and see Lady Tyrrell's case, 1 Freera. 304, but these cases, it should seem, only ap- where Lord Keeper Finch held that jewels ply to allowances settled before marriage. bought by the widow, out of the savings {h) Peacock v. Monk, 2 Ves. sen. 190; of a yearly sum allowed by Iier husband Thrupp v. Harman, 3 My. & K. 513. for her own expenses, were liable to his (I) Brodie v. Barry, 2 Ves. & B. 36. creditors. This decision has been consid- (m) 2 CI. & Fin. 657 ; S. C. 8 Bligh, cred by Mr. Hovenden, in his edition of 2 249. VOL.1. 63 [762] 834 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. dies, her representatives cannot sustain any claim for it whatever; the ground of which rule is, that the pin-money was not meant for the sustentation of the wife, but for her dress and ornament in a station suitable to the degree of her husband. The authorities connected with this subject, and the nature of pin-money in gen- eral, were fully discussed and commented on in the arguments of counsel and the judgment of Lord Brougham in a. late case relat- ing to the arrears of the pin-money of the Duchess of Norfolk, (n) Her grace was entitled, under the trusts of the settlement made in contemplation of her marriage with the duke in 1771, to two annuities of 700Z. and 300Z., charged by way of pin-money, upon estates to which the duke was entitled for his life. The duke re- ceived all the rents and profits of the estates, and maintained the duchess according to her rank, up to the time of his death in 1815. In 1816, the duchess was found to have been a lunatic, without lucid intervals, from 1782, and she continued so until 1820, when she died intestate. Her personal representative claimed from the personal representative of the duke arrears of the pin-money, from 1782 to 1815. And it was held by the house of lords, reversing the decree of the vice chancellor, (o) that the personal representa- tives of the duke would have been entitled to set ofE any payments made by the duke in respect of the personal expenses of the duch- ess, against a claim for the arrears of her pin-money by her, if it had been * made on her behalf during her lifetime, and that the personal representative of the duchess was not entitled to any arrears whatever, (o-^) Another instance where the wife may acquire a property in her Paiapher- husband's personal chattels, by gift from him, so as to "" '" ■ exclude his executors or administrators, is to be found in her paraphernalia, (o^) The term is borrowed from the civil (n) Howard v. Digby, 2 CI. & Fin. the probate court may allow to the widow 234 ; S. C. 8 Bligh, 224. See, also, Jod- such parts of the personal estate of the de- rcll V. Jodrell, 9 Beav. 45 ; [Miller v. Wil- ceased, as he, haying regard to all the cii^ lianison, 5 Md. 219, 236.] cumstances of the case, may deem neccs- (o) Digby V. Howard, 4 Sim. 588. sary for herself and family under her care, (fli) [See Miller 'jng •)«' husband gives them to her expressly for the ornament life : of her person, she cannot, according to our law, dispose of them by gift or will during his life; (/) although by the civil the hus- law, the wife has such an absolute property in them that band may . . . , . . seiitheinor she might alien them in vitd mariti, invito marito. Qg) away: But the husbaud may sell them or give them away in his but he can- lifetime, (K) although he cannot dispose of tliem by will them: during her life, (i) By the civil law, hona paraphernalia in all cases go to the wife, to the exclusion of the executor, nor are they subject to the pay- ment of the husband's debts. (Te) But by our law * they they are k y j j subject to are clearly liable to his creditors, and therefore, the of the hus- widow wiU not be entitled to them (except as far as her *° ■ necessary apparel), (V) in case of a deficiency of as- sets. Qni) Nor are they to be allowed to her, where there are not assets at the time of her husband's death, though contingent assets afterwards fall in ; for the same might not have happened until twenty or thirty years after the death of the testator, nor possibly until after the death of the widow, when the end and design of the widow's wearing her hona paraphernalia, in memory of her husband, could not have been answered, and, therefore, it was reasonable that this should be reduced to a certainty, viz, that if (/) Graham v. Londonderry, 3 Atk. Calmady <.. Calmady, lb. 181; ante, 764, 394. 765, and 3 Bac. Abr. 66, Executors, H. 4, (?) Cro. Car. 344, by Berkeley and where the husband's power to dispose of Jones JJ. ; 3 Bac. Abr. 66 ; Executors, them by will is asserted. H. 4. (k) Swinb. pt. 6, s. 7, pi. 5 ; Godolph. (A) 3 Atk. 394. pt. 2, c. 15, ». 1. (t) Gary v. Appleton, 1 Gas. Chan. 240 ; (I) Noy's Maxims, .;. 49 ; 2 Bl. Gom. Godolph. pt. 2, c. 15, s. 1; Tipping v. 436. Tipping, 1 P. Wms. 730; Northey t-. Nor- (m) Willson v. Pack, Prac. Ghan. 225 ; they, 2 Atk. 78, 79 ; Seymour v. Tresilian, Lord Townsend v. Windham, 2 Ves. sen. 3 Atk. 358 ; 2 Bl. Gom. 436. This was 7 ; 2 Bl. Gom. 436 ; Campion v. Cot- denied by Richardson G. J. and Cooke ton, 17 Ves. 264. "It is not fit," said J. in Lord Hastings v. Douglas, Cro. Car. Lord Keeper Finch, " that the widow 345, though agreed to by Berkeley and should shine in jewels and the creditors Jones JJ. ; and Harcourt C. reserved the starve." Lady Tyrrell's case, 1 Freem. consideration of the point in Wilcox v. 304. Gore, 11 Vin. Abr. 180, 181. See, also, [767] CH. II. § III.] PARAPHERNALIA. 841 there should not be assets real and personal at the testator's death, or, at least, at the time when the jewels were applied to debts, then the jewels should be liable, (n) But the widow's claim to her paraphernalia is preferred to that of a legatee of her husband, and, therefore, they will not but not to be liable to satisfy the testator's legacies, or any of ciesf^*" them, (o) either general or specific, (jo) Likewise, where a creditor has a double fund, the widow's claim to paraphernalia shall not be disappointed by the effect the widow of his option of resorting to the personal estate, (j) Jo marshal Therefore, if the personal estate, including the parapher- the assets nalia, has been exhausted in payment of specialty cred- heir: itors, the widow shall, in equity, stand in their place as to so much upon the real assets of the heir-at-law. (r) So where and there * is a real trust estate, charged with the payment devisee fn of the husband's debts, the wife may resort to the trust '''''^'■' to be reimbursed to the value of her paraphernalia, if the personal estate has been exhausted by her husband's creditors, (s) So a real estate, charged with payment of debts, in aid of the personal estate, shall be applied before the widow's paraphernalia. (^) But whether the widow shall stand in the place of creditors for the amount of her paraphernalia against real assets de- .^^^^ vised, unless in trust for payment of debts, appears doubt- ^^'I'j'J' ^"^ ful. (m) According to Lord Hardwicke's decisions in devisee: Ridout V, Plymouth, (a;) and Probertv. Morgan, («/) she is not so entitled ; but the case of Tynt v. Tynb, (a) is at variance with those decisions. It seems, however, that if the devised estate be subject to a mortgage, or other specific incumbrance, she would (n) Burton v. Pierpont, 2 P. "Wras. 79. P. Wms. 544. It has been suggested by (o) Snelson v. Corbett, 3 Atk. 370. an able writer (Joshua William.s on Real (p) In Graham v. Lord Londonderry, 3 Assets, p. 118), that since the stat. 3 & 4 Atk. 395, Lord Hardwicke said that the W. 4, c. 104, she may marshal the assets right of the wife was superior to that of in this case also ; because she is, as to her any legatee. paraphernalia, in a position similar to that {q) Aldrich v. Cooper, 8 Ves. 397. of a simple contract creditor, who, by force (?■) Snelson v. Corbett, 3 Atk. 369. See, of that statute, may come upon any part also, Tipping v. Tipping, 1 P. Wms. 729 ; of the property of the deceased. Tynt V. Tynt, 2 P. Wms. .544. {x) 2 Atk. 105. (s) Incledon v. Northcote, 3 Atk. 438. (.y) 1 Atk. 440; S. C. 1 Ambl. 6. {t} Boyntun v. Boyntun, 1 Cox, 106 ; S. {z) 2 P. Wras. 542, before the master C. 1 Bro. C. C. 576. of the rolls, 1729. (u) See Cox's note to Tynt v. Tynt, 3 [768] 842 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. U. BK. H. have a right to marshal the assets by throwing the charge upon the estate, as a legatee might in such a case, (a) It has already appeared that the husband may alien the wife's if the hns- paraphernalia in his lifetime ; but if the alienation be band pawn jjq|; absolute, but as a pledge or security for money, the phernaiia wife Surviving him will be entitled to have them re- his execu- iii- tors must deemed by his executors out of her husband s personal them for estate, if sufficient for that purpose, after payment of his the widow: debts. (6) Thus, * where the husband had pledged a diamond necklace of his wife as a collateral security for 1,000L bor- rowed on bond, and authorized the pawnee to sell it during his ab- sence for 1,500L, Lord Hardwicke held, that as in fact it was not sold in his lifetime, this did not amount to an alienation by the husband, and that therefore, the widow was entitled to have it re- deemed by his executors, (c) The widow may bar her right to paraphernalia by settlement , ., before marriage ; as in Cholmely v. Cholmely, (cZ ) where barred of the wife by her marriage articles agreed to have no part phernaiia of her husband's personal estate, but what he should give riage arti- her by will ; and this was held to bar her of her para- °'^^' phernaiia. (e) If the husband should bequeath to his wife all household goods, furniture, Tpl&te, jewels, linen, &c. for life or widowhood, with the remainder over, this will not bar her of her paraphernalia. (/) by election But in such a case if the widow does not, by some act in \hlmls '^^'' lifetime, manifest her election to take them by her legatee. elder and better title, her executor or administrator can- not lay any claim to them after her decease. (^) Paraphernalia are in their nature materially distinct from gift Jewels, of jewels, &c. to the wife, by third persons, for her sepa- for the?ep- ''<^*^ ^^^^ / ^s the latter may be aliened by the wife in the the wifl\y lifetime of the husband, and are not liable to his debts, third per- With respect to what shall be considered as given to her sons, not ^ & " liable to separate use ; where some diamonds had been presented debts: to the wife by the husband's father, on her marriage with (a) Oneal v. Mead, 1 P. Wms. 693 ; (c) 3 Atk. 394, 395. Lutkins v. Leigh, Cas. temp. Talb. 53 ; 2 (rf) 2 Vern. 83. Eoper Husband & Wife, 146, note (a), by (e) S. P. Read v. Snell, 2 Atk. 642. Jacob. See post, pt. iv. bk. i. ch. ii. § i. (/) Marshall v. Blew, 2 Atk. 217. ^nd "• {g) Clarges v. Albemarle, 2 Vern. 247. (i) Graham v. Londonderry, 3 Atk, 395. [769] CH. II. § IV.J OF DONATIONS MORTIS CAUSA. 843 his son, they were considered by Lord Hardwicke as a gift to the separate use of the wife, and to which she was entitled in her own right. (A) So where certain pieces of plate were given to the wife immediately after marriage, by the husband's father, * Lord Hard- wicke decided that they were to be considered as gifts to the wife for her separate use. (z) And a present by a stranger to the wife during coverture must be construed as a gift to her separate use ; as where the Regent of France delivered to the husband, as a present for his wife, his picture set about with diamonds. (A;) But with respect to jewels, &c. presented to the wife by the husband himself before marriage, there is no exemption f^"**! of from the liability to his creditors ; for, immediately on sented by the marriage, the law gives them to the husband, and he band"be- cannot be considered as a trustee for them for her sepa- IZg^^^' rate use afterwards. (Z) SECTION IV. Of Donations Mortis Causd. It will be proper to close the subject of the estate of an execu- tor or administrator in the chattels personal of the deceased in possession, by considering another species of interest in the prop- erty of the deceased which vests neither in the personal represen- tative, nor in his heir, nor in his widow. This is called a donatio mortis causd, and is thus defined in the civil law, from which both the doctrine and the denomination are borrowed : Mortis causd donatio est, qum propter mortis fit suspicionem ; cum quis ita donat, ut si quid humanities ei contigisset, haberet is, qui accepit ; sin au- tem supervixisset is, qui donavit, reciperet; vel si eum donationis poenituisset ; aut prior decesserit is, cui donatum sit. (m) (/i) Graham i'. Londonderry, 3 Atk. separate estate. See, also, this case again 393. noticed by his lordship, in 1 Atk. 271 ; {i) Brinkman v. Brinkman, 3 Atk. 394, ante, 758. cited in Graham v. Londonderry. [1) Ridout v. Lord Plymouth, 2 Atk. (k) 3 Atk. 393; Lord Hardwicke in 105. this case mentioned the case of Countess (m) Inst. lib. 10, tit. 7. The correct- Cowper, in which several trinkets (which ness of this definition, and the inaccuracy it is presumed were not intended to be of that given by Swinburne, pt. 1, s. 7, pi. worn, like paraphernalia, as ornaments to 2, is noticed by Lord Loughborough, in her person) had been given to her by Lord Tate v. Hilbert, 2 Ves. jr. 119. The de- Cowper himself in his lifetime, and they scription of a rfonais'o jnortis causa given by were held by Sir Joseph Jekyll to be her Lord Cowper is, " where a man lies in ex- [770] 844 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. *From this definition it results, tliat to constitute a donatio Attributes mortis causd, there must be two attributes : 1. The gift of a dona- j^ gj. j^g ^jj.]^ ^ ^jg^ j.^ ^jjg donor's death. 2. It must tio mortis causal be conditioned to take effect only on the death of the the donor by his existing disorder. A third essential quality is required by our law, which, according to some authorities, was not necessary according to the Roman and civil law ; (n) viz, 3. There must be a delivery of the subject of the donation, (w^) 1. The gift must be made with a view to the donor's death, (o) tremity, or being surprised with sickness, and not having an opportunity of mak- ing his will, but lest he should die be- fore he could make it, he gives with his own hands his goods to his friends about him ; this, if he dies, shall operate as a legacy ; but if he recovers then does the property thereof revert to him." Hedges V. Hedges, Prec. Chanc. 269. [See Par- ish V. Stone, U Pick. 203, 204 ; 2 Kent, 444 et seq.; Story J. in Grattan v. Ap- pleton, 3 Story, 763 ; Sargent J. in Cut- ting u. Oilman, 41 N. H. 150, 151. In Michener v. Dale, 23 Penn. St. 63. Wood- ward J. defines donatio causa mortis to be " a gift of a chattel made by a person in his last illness, or in periculo mortis, subject to the implied condition that if the donor recover, or if the donee die first, the gift shall be void." This definition is substantially that which is given in Eoper on Legacies (p. 26), and which was criti- cised by Gibson C. J. in Nicholas v. Adams, 2 Whart. 22, as being redundant, because it was indiiferent whether the peril of death be induced by sickness, or any other cause. In another respect the definition was con- sidered too narrow, as conveying the idea that the danger of death must bo real, to constitute a gift a donatio causa mortis, which was defined to be " a conditional gift dependent upon the contingency of expected death," whether the expectation were groundless or well founded. Consid- ering donations mortis causd as testamen- tary dispositions, it is obvious that, if made in sickness, they can only be effectual when made in the last sickness, or if made in the fear of death, when death itself has proved [771] that the fear was well founded. The re- marks of the chief justice are, however, applicable when the chance of life or death has been decided in favor of the donor, and when the question might arise whether the gift was the ordinary gift jn<«- vivos, and consequently irreclaimable, or whether the occasion implied that it was a donatio causa mortis, and hence merely conditional. See Grymes v. Howe, 49 N. Y. 17.] (n) But see Lord Hardwicke's judg- ment, in Ward u. Turner, .2 Ves. sen. 440. («!) [See the observations of Walton J. in Hatch v. Atkinson, 56 Maine, 326, 327, with regard to the strictness with which this class of gifts should bo watched. "Gifts causa mortis," he says, "are not favored in law. They are a fruitful source of litigation, often bitter, protracted, and expensive. They lack all those formali- ties and safeguards which the law throws around wills, and create a strong tempta- tion to the commission of fraud and per- jury." See Champney v. Blanchard, 39 N. Y. in ; Pierpoint C. J. in French v. Raymond, 39 N. Y. 625 ; Shirley v. White- head, 1 Ired. Eq. 130; Delmotte v. Tay- lor, 1 Redf Sur. 417; Dewey J. in Eock- wood V. Wiggin, 16 Gray, 402, 403 ; Mar- shall V. Berry, 13 Allen, 43, 47, note (*) ; Headley v. Kirby, 18 Penn. St. 326 ; Michener v. Dale, 23 Penn. St. 59.] (o) Nothing can be more clear, said Lord Eldon, in the case of Duffield v. El- wes, 1 Bligh N. S. 530, than that a dona- tio mortis causd must be a gift made by a donor in contemplation of the conceived CH. II. § IV.] OF DONATIONS MORTIS CAUSA. 845 If a gift be not made by the donor in peril of death, i. e. with rela- tion to his decease by illness affecting him at the time 1. The gift of the gift, it cannot be supported as a donation mortis ™ade by causd. (^) Where it appears that the donation was * leriTof made whilst the donor was ill, and only a few days or ileath. weeks before his death, it will be presumed that the gift was made in contemplation of death, (g') and in the donor's last ill- ness, (r) * 2. The gift must be conditioned to take effect only on the death of the donor by his existing disorder, (s) But 2. The gift although it is an essential incident to a donation mortis ^^^'.'"^ causd that it be subject to a condition, that, if the donor ''""^"i '" approach of death. [See Blanchard v. Sheldon, 43 Vt. 513, 5U ; Smith v. Kitt- ridge, 21 Vt. 239 ; Grymes v, Howe, 49 N. Y. 17; Delmotte «. Taylor, 1 Kedf. Sur. 417 ; First Nat. Bank v. Balcom, 35 Conn. 351. As to gifts by one going into the array, or " to the front,'' see Virgin V. Gaither, 42 111. 39 ; Baker u. "Williams, 34 Ind. 547 ; Dexheimer v. Gautier, 5 Robert. (N. Y.) 216; Gass u. Simpson, 4 Coldw. 288.] As to the requisite proof of such a gift, see Cosnahan v. Grice, 15 Moore P. C. 215. {p) Tate V. Hilbert, 2 Ves jr. 121 ; S. C. 4 Bro. C. C. 290 ; Hedges v. Hedges, Free. Chan. 269; Miller v. Miller, 3 P. Wms. 357 ; Gardner u. Parker, 3 Madd. 185. See, also, Edwards v. Jones, 1 Myl. & Or. 236 ; post, 773. {q) Lawson v. Lawson, 1 P. Wms. 441 ; Miller v. Miller, 3 P. Wms. 356, 358 ; Hill V. Chapmau, 2 Bro. C. C. 612 ; SnellgroTe V. Baily, 5 Atk. 214 ; Gardner v. Parker, 3 Madd. 184; [Grattan v. Appleton, 3 Story, 755 ; Dole v. Lincoln, 31 Maine, 422 ; Merchant v. Merchant, 2 Bradf Sur. 432.] (r) 1 Rop. Leg. 21, 3d ed. In Blount V. Burrow, as reported in 1 Ves. jr. 546, Eyre C. B. seems to be of opinion that there must be positive evidence that the gift was made in the last illness ; but this dictum is not found in the report of the case in 4 Bro. C. C. 72, and does not seem supported by any other authorities. (s) Tate V. Hilbert, 2 Ves. jr. 120; Irons V. Smallpiece, 2 B. & Aid. 553; Tate V. Leithead, Kay, 658 ; Staniland u. Willott, 3 Mac. & G. 664, 675. [Where the gift was made while the donor was in expectation of immediate death from con- sumption, and he afterwards so far recov- ered as to attend to his ordinary business for several months, but finally died from the same disease, it was held that it could not be supported as a donatio causa mortis. Weston V. Hight, 17 Maine, 287. But it is not necessary to the validity of a dona- tio causa mortis as a testamen ary disposi- tion, that it should have been made in such an extremity as is requisite to give effect to a nuncupative will; and hence the circumstance that the donor lived fourteen days after the delivery of the gift, and that he was able to make his will in the mean time, was held not to avoid the gift. Nicholas v. Adams, 2 Whart. 17. In Wells u. Tucker, 3 Binn. 366, where such a gift was sustained, the donor lived three days after making it. In Michener v. Dale, 23 Penn. St. 63, the donor lived six hours ; and in neither case would it appear that he was unable to ex- ecute a will. See, also, the opinion as given by Jones J. in Adams v. Nicholas, 1 Miles, 112. See Borneman v. Sidlinger, 15 Maine, 429. There seems to be no rule which limits the time within which the donor must die, to make the gift valid. Grymes v. Howe, 49 N. Y. 17.] [772] 846 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. take effect Jiye, the thing shall be restored to him, yet it is not nec- onlyon the ° •' death of essary that the donor should expresslj' declare that the gift is to be accompanied by such a condition ; for if a gift be made during the donor's last illness, the law infers the con- dition that the donee is to hold the donation only in case the donor die of that indisposition, (t) Thus in Gardiner v. Parker, (ii) A., being confined to his bed, gave to B. a bond for 1,800Z. two days before his death, in the presence of a servant, saying, " There, take that, and keep it." The question was between the donee and executors of A. And Sir John Leach V. C. decided in favor of the donation, observing that the doubt originated in the donor not having expressed that the bond was to be returned if he re- covered ; but that the bond being given in the extremity of sick- ness, and in contemplation of death, the intention of the donor was to be inferred that the bond shall be holden as a gift only in case of his death ; and that if a gift be made in tlie expectation of death, there is an implied condition that it is to be held only in the happening of that event. (») Still, if from all the circumstances of the gift, there is sufiicient evidence to rebut the ordinary presuipption, and to make it appear that the gift was unconditional, it cannot be supported as a dona- tion mortis causd. («/) Accordingly, * in Edwards v. Jones, (g) Mary Custance, the obligee of a bond given in the year 1819, for 300Z., signed the following indorsemenb not under seal, on the bond, five days before her death : " I, Mary Custance, of the town of Aberystwith, in the county of Cardigan, widow, do hereby assign and transfer the within bond or obligation, and all my right, title, and interest thereto, unto and to the use of my niece, Esther Edwards, of Llanilar, in the said county of Cardigan, widow, with full power and authority for the said Esther Ed- wards to sue for and recover the amount thereof, and all interest now due or hereafter to become due thereon ; as witness my hand, this 25th day of May, 1830." Immediately after the indorsement had been signed, Mary Custance delivered the bond, or caused it to be delivered to Esther Edwards, and it remained in her hands. (t) 1 Eop. Leg. 4,3d ed. (y) See Walter v. Hodge, 2 Swanst. 92 ; («) 3 Madd. 184. S. C. 1 Wils. Chanc. Cas. 445. (x) See, also, Lawsou v. Lawson, 1 P. (z) 1 Myl. & Cr. 226. Wms. 441 ; Staniland v. "Willott, 3 Mac. & G. 664, 675. [773] CH. II. § IV.] OF DONATIONS MORTIS CAUSA. 847 Mary Custance died on the 30th of May, 1830, having in the year 1829 made her will, in which she did not mention the bond, or dispose of the residue of her estate, but she appointed an execu- tor. It was argued on the part of Esther Edwards that if this gift could not be established as a donatio inter vivos, by reason of the act being incomplete, it might still take effect as a donatio mortis causd. But Lord Chancellor Cottenham held, that in order to be good as a donatio mortis causd, the gift must have been made in contemplation of death, and intended to take effect only after the donor's decease ; and that if it appeared from the circumstances of the transaction that the donor intended to make an immediate and irreyocable gift, that would destroy the title of the party who claimed as a donee mortis causd. His lordship fur- ther observed, that a party making a donatio mortis causd, does not part with the whole interest, save only in a certain event, and it is of the essence of such a gift, that it shall not otherwise take place. Such a donation leaves the whole title in the donor, unless the event occurs which is to divest him. Here, however, there was an actual * assignment, by which the donor, Mrs. Custance, transferred all her right, title, and interest to her niece ; which was in itself sufficient to exclude the possibility of treating this as a do7iatio mortis causd. 3. There must be a delivery of the subject of the 3. There conation. The general rule upon this head is, that to delivery substantiate the gift, there must be an actual tradition or j^ct'S*'^''" delivery of the thing to the donee himself, (a) or to some donation : (a) Ward v. Turner, 2 Ves. sen. 431 ; thrown out could not be maintained, be- Tate V. Hilbert, 2 Ves. jr. 120; Bryson cause a delivery was wanting; and he V. Brownrigg, 9 Ves. 1 ; Bunn v. Mark- had accordingly written a remark to that ham, 7 Taunt. 224; S. C. 2 Marsh. 532; effect, at the end of his own note to the Irons V. Smallpiece, 2 B. & Aid. 553 ; case. See accord. Powell v. Hellicar, 26 Thompson v. Heffernan, 4 Dr. & War. Beav. 261 ;'[Shaw C. J. in Parish d. Stone, 285. In the case of Spratley v. Wilson, 14 Pick. 204, 205 ; Shepley C. J. in Dole Holt N. P. C. 10, Gibbs C. J. considered v. Lincoln, 31 Maine, 429 ; Case o. Den- actual delivery unnecessary, holding the nison, 9 R. I. 88 ; Chevallier v. Wilson, donation sufficient where a person in ex- 1 Texas, 161; Miller u. Jeffress, 4 Grat- tremis, said, " I have left my watch at Mr. tan, 472 ; Wells u. Tucker, 3 BInn. 336 ; E.'s at Charing Cross, fetch it away, and Nicholas v. Adams, 2 Whart. 17; Mich- I will make you a present of it." But in ener v. Dale, 23 Penn. St. 63 ; Murray v. Bunn u. Markham, his lordship desired Cannon, 41 Md. 466, 477 ; Brown u. that the case might not be mentioned. Brown, 18 Conn. 410 ; Meach v. Meach, since immediately after the trial he per- 24 Vt. 591 ; Singleton v. Cotton, 23 Geo. ceived that what he had improvidently 261; McKenzie w. Downing, 25 Geo. 669 ; [774] 848 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. II. BK. II. one else for the donee's use. (5) The possession of it must be transferred in point of fact. The purse, the ring, the jewel, or the watch, (6^) must be given into the hands of the donee, either Smith V. Downey, 3 Ired.Eq. 268; Camp- bell's Estate, 7 Pent). St. 100; Trough's Estate, 75 Penn. St. 115; Zimmerman f. Strceper, 75 Penn. St. 147 ; Champney v. Blanchard, 39 N. Y. Ill ; French v. Ray- mond, 39 Vt. 623 ; Grymes v. Howe, 49 N. Y. 17. There must be as complete a de- livery as the nature of the property will admit of. Hatch v. Atkinson, 56 Maine, 324 ; Davis J. in Carpenter «. Dodge, 20 Vt. 595, 602; Pennington v. Gittings, 2 Gill & J. 208; Bradley v. Hunt, 5 Gill & J. 54. In Cutting v. Gilman, 41 N. H. 147, 152, Sargent J. said: "A delivery is indispensable to the validity of a gift causa mortis. It must be an actual deliv- ery of the thing itself, or of the means of getting possession and enjoyment of the thing, and there mnst be something amounting to delivery at the time of the gift, for it is not the possession of the donee, but the delivery to him by the donor that is material. An after acquired possession, or a previous and continued possession of the donee, though by au- thority of the donor, is insufficient." Mil- ler V. Jeflxess, 4 Grattan, 472 ; Kenney v. Public Administrator, 2 Bradf. Sur. 319 ; Delmotte u. Taylor, 1 Eedf. Sur. 417; Eg- erton v. Egerton, 17 N. J. Eq. 419. As to this last statement, note the difference be- tween a gift inter vivos and a gift causa mortis. Wing v. Merchant, 57 Maine, 386, 387 ; Camp's Appeal, 36 Conn. 88, 92, 93. See Allen «. Cowan, 23 N. Y. 502 ; Wes- terlo u. Dewitt, 35 Barb. 215. In Cole- man V. Parker, 114 Mass. 30, it was de- cided that the taking the key of a trunk from the place where it is kept, and the putting goods into the trunk and the re- turning the key to its place, at the request of the owner in his last sickness, appre- hending death and expressing the desire to make a gift of the trunk and contents causa mortis, is not a delivery sufficient for that purpose. But in this case Ames J. said : " This term ' delivery ' is not to be taken in such a narrow sense as to import that the chattel or property is to go liter- ally into the hands of the recipient and to be carried away. We have no doubt that a trunk with its contents might be effect- ually given and delivered, in such a case, by a delivery of the key, not as a symbol- ical delivery of the property, but because it is the means of obtaining possession. Ward V. Turner, 2 Ves. sen. 431, 443. If the key in this case had been placed in the hands of the witness, the donor relin- quishing all dominion and control over it, and parting with it absolutely, or if by direction of the donor the witness had taken it into her possession and exclusive control, there would have been a sufficient delivery to make out a full title in the plaintiff." Wing u. Merchant, 57 Maine, 383; Dole u. Lincoln, 31 Maine, 422; Hunt V. Hunt, 119 Mass. 474.] (6) Drury v. Smith, 1 P. Wms. 404; [Shepley C. J. in Dole u. Lincoln, 31 Maine, 429; Wells J." in Marshall v. Berry, 13 Allen, 45 ; Borneman v. Sidlinger, 15 Maine, 429 ; Sargent J. in Cutting v. Gil- man, 41 N. H. 151, 152 ; Ross J. in BJan- chardu. Sheldon, 43 Vt. 512, 514; Cald- well V. Renfrew, 33 Vt. 213 ; Coutant u. Schuyler, 1 Paige, 316; Grymes v. Howe, 49 N. Y. 17. In Wells v. Tucker, 3 Binn. 366, a delivery to the wife of the donor for the use of the donee was held sufB- cient. Bloomer v. Bloomer, 2 Bradf. Sur. 340. So it has been held that a promis- sory note may pass as a gift causa mortis, without actual delivery to the donee when such note is in possession of a third party as trustee for the equitable owner. South- erland v. Southerland, 5 Bush, 591.] (61) [Only personal property capable of delivery is subject to a gift causa niortis; and it may inclade all of the testator's personal estate, however large the amount and value ; the common law does not limit the amount of property that may be thus disposed of. Walton J. in Hatch v. At- CH. II. § IV.] OF DONATIONS MORTIS CAUSA. 849 by the donor himself or by bis order. (IP-') Thus, in Bunn v. Markham, (c) Sir G. Clifton had written upon the parcels con- taining the property in question the names of the parties for whom they were intended, and had requested his natural son to see the property delivered to the donees. It was, therefore, manifestly his intention that it should pass to them ; yet as there was no actual delivery, the court of common pleas held that it was not a valid gift. A further requisite to give effect to the donation is, that the deceased should, at the time of the delivery, not only what con- part with the possession, but also with the dominion delivery: over the * subject of the gift, (d) Thus, in Reddell v. the de- Dobree, (e) A., the deceased, being in a declining state ™*stVrt of health, delivered to Charlotte R. a locked cash box, with the ' . J, , dominion and told her to go at his death to his son for the key ; as well as and that the box contained money for herself, and en- sion; tirely at her disposal after he was gone, but that he should want it every three months whilst he lived. The box was twice deliv- ered to the deceased by his desire, and he delivered it again to Charlotte R., and it was in her possession at his death. The box was afterwards broken open by her, and contained a check for 600Z., drawn by a third party in favor of the deceased, and en- closed in a cover, indorsed with the name of Charlotte R., and the key (which the son of the deceased had refused to deliver to her), had a piece of bone attached to it, with her name written on it. Sir L. Shadwell V. C. held that there was no donatio mortis causd ; for that there was nothing more than that to a certain extent the deceased put Charlotte R. in the possession of the box, but retained to himself the absolute power over the contents, (e^) But it is no objection that the gift was not made to the donee kinson, 56 Maine, 327 ; Pierpoint C. J. C. 663 ; Keddell u. Dobree, 10 Sim. 244 ; in French v. Eaymond, 39 Vt. 625 ; Meach See, also, Tapley v. Kent, 1 Robert. 400. V. Meach, 24 Vt. 591 ; White <,-. Wager, [Shepley C. J. in Dole v. Lincoln, 31 32 Barb. 250; Michener u. Dale, 23 Penn. Maine, 429; Huntington v. Gilmore, 14 St. 59 ; Virgin v. Gaither, 42 111. 39. But Barb. 243; M'Dowell v. Murdock, 1 Nott see Headley v. Kirby, 18 Penn. St. 326.] & McC. 237 ; Cutting v. Gilman, 41 N. H. (42) [The donee must not only take 147; Walton J. in Hatch u. Atkinson, 56 but he must retain possession until the Maine, 327; Shurtleff «. Francis, 118 death of the donor. Hatch o. Atkinson, Mass. 154.] 56 Maine, 324.] (e) 10 Sim. 244. (c) 7 Taunt. 231 ; S. C. 2 Marsh. 532. (ei) [Hatch v. Atkinson, 56 Maine, ((f) Hawkins v. Blewitt, 2 Esp. N. P. 327.] VOL. I. 84 [776] 850 OF THE QUANTITY OF AN EXECUTOR'S ESTATE. [PT. 11. BK. II. free from incumbrance, but charged with the performance of a particular purpose. (/) Accordingly it was held in a modern case, (^) that a gift may be good as a donatio mortis eausd, although it be coupled with a trust that the donee shall provide for the funeral of the donor. Again, though a delivery to a third party for the donee's use may be good, (A) yet a mere delivery to an agent, in the character of agent for the giver, is not suflBcient. (i) But there are cases where the nature of the thing will not * admit of a corporeal delivery ; and then it should seem that a delivery of the means of coming at the possession or making use of the thing given will be sufficient. (A;) Thus the delivery of the key of a trunk has been de- cided to amount to the delivery of a trunk and its con- tents. (Z) So the delivery of the key of a warehouse or other place, in which goods of bulk were deposited, has been determined to be a valid delivery of the goods for the purpose of a donatio mortis eausd. (m) But in these cases it is to be observed that the key is not to be considered in the light of a symbol, in the name of the thing itself ; but the delivery of it has been allowed as the delivery of the possession, because it is the way of coming at the possession or to make use of the thing, (w) there may go a bond may be a subject of donatio mortis eausd, be a dona- •' . ■ ■, ■. iiii- tio mortis becausc the property is considered to pass by the deuv- but a trust may be an- nexed to the gift : a delivery to some one else as agent for the donor, is insuffi- cient : what is a sufficient delivery I when the subject is incapable of actual transfer : (/) Blount V. Burrow, 4 Bro. C. C. 75. See Hambrook v. Symmons, 4 Euss. C. C. 25. ig) Hills V. Hills, 8 M. & W. 401. (h) See supra, note (6). (t) Farquharson v. Cave, 2 Coll. 356. (h) Ward v. Turner, 2 Ves. sen. 441. [l) Jones