to the decedent's estate had he died intestate, to be present or be given an opportunity to be heard. Where the will is proved in common form, interested parties, not having been cited to appear, may at any time thereafter compel the executor to prove the will in solemn form, and if he shall fail so to do, the probate will be revoked.11 Thus the death or disappearance of a witness may endanger the validity of the probate of the will. But a will once proved in solemn form remains thereafter in effect and binding upon all persons who are parties to the proceedings. 12 Exceptions to this rule are where the executor procures the admission of the will to probate in solemn form through fraud;18 and where a later will is subsequently discovered. The fact that a next of kin acquiesced in the probating of the will in common form does not preclude him from thereafter compelling the executor to prove the will in solemn form.14 Those bound by the proving of a will in solemn form include not only persons parties to the suit, but all who are cited to appear, whether they do so or not.15 By § 61 of the Court of Probate Act, 1857, statute of 20 & 21 Victoria, ch. 77, where proceedings are taken for proving a will in solemn form, or for revoking the probate of a will on the ground of the invalidity thereof, or where in any other contentious cause or matter under the act the validity of a will is disputed, unless in the several causes aforesaid the will affects only personal estate, the 11 Hoffman v. Norris, 2 Phillim. 230, n.; Merryweather v. Turner, 3 Curt. 802, 817. 12 Wytcherley v. Andrews, L. R. 2 P. & D. 327; Young v. Holloway, (1895) P. 87. 13 Priestman v. Thomas, L. R. 9 III Com. on Wills-11 Pro. Div. 70; Birch v. Birch, (1902) 14 Williams Exrs., (3d Am. ed.) **282, 283; Bacon's Abr., tit. Exrs. & Admrs., E, 8. 15 Wytcherley v. Andrews, L. R. 2 P. & D. 327, 328. heir at law, devisees and other persons having or pretending interest in the real estate affected by the will shall, subject to the provisions of the act, and to the rules and orders under the act, be cited to see proceedings, or otherwise summoned in like manner as to the next of kin or others having or pretending interest in the personal estate affected by a will should be cited or summoned, and may be permitted to become parties, or intervene for their respective interests in such real estate, subject to such rules and orders, and to the discretion of the court. Section 62 of said act above mentioned provides that where probate of a will is granted after proof in solemn form or where the validity of a will is otherwise declared by decree or order in such a contentious cause or matter as aforesaid, the probate, decree or order shall respectively inure to the benefit of all persons interested in the real estate affected by such will, and the probate copy of such will, or the letters of administration with such will annexed, shall in all courts and in all proceedings affecting the real estate, except proceedings by way of appeal or for the revocation 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 personal estate. If the will is decreed invalid it shall not be admitted in evidence in any action involving the real estate, and such decree or order shall inure for the benefit of the heir at law or other person against whose interest in the real estate such will might operate. § 1292. Proof of Will in Common Form in England. To prove a will in common form, application must be made by the one designated in the testator's will as the executor. If several are named, the will may be proved by any one of them without notice to the others, but such others may subsequently apply for letters. Application may be made either in person or through a solicitor. The executor applying for admission of the will to probate must present and file his affidavit duly sworn to in which is stated his correct name, address and occupation, identifying him as the one named in the will, the name, address and description of the testator, the date of his death, the testator's domicile and the value of his estate. If the will contains no attestation clause or if such clause be incomplete, it is necessary to produce the affidavit of at least one of the subscribing witnesses, if possible to do so, to prove that the formalities of execution required by the statute were fully complied with. If the subscribing witnesses are dead or can not be reached, an affidavit of other persons may be filed proving the handwriting of the testator and the subscribing witnesses and stating any circumstances tending to show due execution. Interlineations, alterations, erasures and obliterations are invalid unless shown to have been made prior to the execution of the will or validated by a subsequent reexecution. Probate must not issue earlier than the eighth day after the death of the testator except by direction of the judge or order of two of the registrars of the principal registry; and if probate be not applied for within three years after the testator's death a satisfactory reason for such delay must be certified to the registrars.16 By the Court of Probate Act, 1857, statute of 20 & 21 16 Swinb., Wills, pt. 6, § 14, pl. 2; Godolph, pt. 1, ch. 20, § 4; Williams Exrs., (3d Am. ed.) §§ 280, 281. Non-contentious business rules under provisions of statutes of 20 & 21 Victoria, ch. 77, and 21 & 22 Victoria, ch. 95. 1 Victoria, ch. 77, § 46, the probate of wills or letters of administration may, upon application for that purpose to the district registry, be granted in common form by the district registrar in the name of the Court of Probate and under the seal appointed to be used in such district registry, if it shall appear by affidavit of the person or some or one of the persons applying for the same that the testator or intestate, as the case may be, at the time of his death had a fixed place of abode within the district in which the application is made, such place of abode being stated in the affidavit, and such probate or letters of administration shall have effect over the personal estate of the deceased in all parts of England accordingly.17 By § 47 of the above act, such affidavit shall be conclusive for the purpose of authorizing the grant, by the district registrar, of probate or administration; and no such grant or probate or administration shall be liable to be recalled, revoked, or otherwise impeached, by reason that the testator or intestate had no fixed place of abode within the district at the time of his death; and every probate and administration granted by any such district registrar shall eventually discharge and protect all persons paying to or dealing with any executor or administrator thereunder, notwithstanding the want or defect in such affidavit as is required. But by $ 48 of said act, the district registrar shall not grant probate or administration in any case in which there is contention as to the grant until such contention is terminated or disposed by decree or otherwise, or in which it otherwise appears to him that probate ought not to be granted in common form. 17 Administration now covers realty as well as personalty, see § 1288. § 1293. Who May Demand Proof of Will in Solemn Form. Any person entitled to a share in the real or personal estate of the decedent had he died intestate, or the representative of any such person, may require that the proof of the testator's will be made in solemn form, and this applies to proof in the first instance or after proof of such will in common form. This same right is vested in the executors, devisees and legatees under another will or codicil of the decedent, and their representatives, if their interests under such a will are adverse to the will in question. A creditor, however, has no interest which will allow him as such to demand that the will be proved in solemn form.18 The one named as executor or the one entitled to letters of administration with the will annexed may if he so desires prove the will in solemn form. This is advisable since, should the probate in common form be thereafter revoked, the executor under $77 of the Court of Probate Act, 1857, is protected only in payments made by him which the person to whom probate or administration shall be afterwards granted might have lawfully made.1o § 1294. Procedure for Proof of Will in Solemn Form Upon Initiative of Executor. The proving of a will in solemn form may be occasioned in various ways. The executor, or the one entitled to letters of administration with the will annexed in case there be no executor named in the will or one able or willing to act, may institute such proceedings of his own initiative before any proof of the will has been had. To do so 18 Menzies v. Pulbrook, 2 Curt. 845. 19 Payment of a charitable bequest under a will proved in com mon form and thereafter revoked held not recoverable from the one to whom it was paid.-Fitzpatrick v. McGlone, (1897) 2 Ir. R. 542, |