CHAP. V. 5. Prerogative Court. (p) Proceedings to obtain prerogative probate or letters of administration. (a) the recent enactments that jurisdiction has been repealed, and the appeal must now be to the Court of the Judicial Committee of the Privy Council. (0) The Archbishop of Canterbury (and of York also) has his Prerogative Court, as well for proving wills and granting letters of administration, when the deceased, being a subject, has left bona notabilia in different dioceses, as for instituting, hearing and determining all causes, formal or summary, (i. e. on motions,) relating to wills, or administrations, or legacies, before a judge appointed by the archbishop, called the Judge of the Prerogative Court. But in the case of the King this Court has no jurisdiction over his supposed will. (9) Formerly an appeal from this Court was to the Delegates; (r) but under the recent act the appeal is to the Judicial Committee of the Privy Council. (s) This Court properly hears all suits and proceedings relative to the grant of probate, (t) or of letters of administration, and to the assignment of administration bonds. We have in the preceding volume, when examining the conduct to be pursued by executors and administrators, stated in part how and where probate and letters of administration are to be obtained, (u) and therefore only a few practical observations will here be added, with a statement of the practice respecting Caveats, to prevent the obtaining probate or letters of administration; and proceedings to compel sureties in an administration bond to justify. The mode of proceeding to obtain probate of a will, or letters of administration to the effects of a person deceased, is, for the executor appointed by the will, or party entitled to administration, to apply to a proctor of the Ecclesiastical Court. The party applying, if he be an executor, or entitled to the administration of an intestate's effects, is sworn before a surrogate of the judge to the full value of the deceased's personal estate, without deducting the debts due from him; (y) the original will (0) Per Sir J. Nicholl, in Parham v. Templer, 3 Phil. R. 255. (p) 3 Bla. Com. 65; Com. Dig. Courts, N. 2; Bac. Ab. Courts, Eccles. Courts, A. 3; Law's Oughton, 55. (q) In the goods of his late majesty, (r) 3 Bla. Com. 65, 66; 25 II. 8, c. 19. c. 41. (t) Law's Oughton, 57. (u) Ante, vol. i. 521 to 529; and see further at the close of this work. (x) The following practical directions and observations are from the pen of a most experienced proctor. See also further particulars and decisions, ante, vol. i. 525 to 529. (y) Ante, vol. i. 523; and 55 G. 3, c. 184, s. 38; and see form of oath, ante, vol. i. 525, note (); but desperate or doubtful debts need not be included before they have been actually received, ante, vol. i. 522. is to be deposited in the public registry of the Ecclesiastical Court, and probate of a collated engrossed copy is granted. The probate and administration are documents on parchment, in which is stated the name and late residence of the deceased, and also the name of the executor or administrator, by what Court, and the day on which it is granted. The form of a Prerogative Probate is in the subscribed note. (*) The proceedings to obtain letters of administration, and the form of affidavit, and of the warrant for granting administration, will be found in the preceding volume. (a) The form of Letters of Administration granted by the Prerogative Court is given in the subscribed note. (b) The 22 & 23 Car. 2, c. 10, contains the form of the CHAP. V. SECT. X. (*) William, by Divine Providence, Archbishop of Canterbury, Primate of all Form of Probate England and Metropolitan, do by these presents make known to all men that on the granted by Preday of in the year of our Lord one thousand eight hundred and thirty- rogative Court four, at London, before the Worshipful Doctor of Laws, Surrogate of the to a sole execuRight Honourable Doctor of Laws, Master, Keeper or Commissary of our trix. Prerogative Court of Canterbury, lawfully constituted, the last will and testament of A. B., late of Kensington, in the parish of Saint Mary Abbott, Kensington, in the county of Middlesex, and of Bruisyard, in the county of Suffolk, deceased, Sworn under hereunto annexed, was proved, approved and registered, the said deceased having, £, and that whilst living, and at the time of his death, goods, chattels or credits in divers dioceses, or the testator died jurisdictions, by reason whereof the proving and registering the said will, and the on the granting administration of all and singular the said goods, chattels and credits, and of also the auditing, allowing and final discharging the account thereof, are well known A. D. 1834. to appertain only and wholly to us, and not to any inferior judge; and that administration of all and singular the goods, chattels and credits of the said deceased, and any way concerning his will, was granted to E. B., widow, the relict of the said deceased, the sole executrix named in the said will, she 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, and to exhibit the same into the registry of our said Court on or before the last day of next ensuing, and also to render a just and true account thereof. Given at the time and place above written, and in the year of our translation. And see as to Probates, ante, vol. i. 526. (a) As to Letters of Administration, ante, vol. i. 526, 527. day (b) William, by Divine Providence, Archbishop of Canterbury, Primate of all Eng- Form of Letters land and Metropolitan. To our well-beloved in Christ E. B., widow, the relict of A. B., of Administralate of, in the parish of - in the county of Middlesex, deceased, greeting: tion granted by Whereas the said A. B., (as is alleged) lately died intestate, having, whilst living, and the Prerogative at the time of his death, goods, chattels or credits, in divers dioceses or jurisdictions, by Court to the reason whereof the sole ordering and granting administration of all and singular the said widow of intesgoods, chattels and credits, and also the auditing, allowing and final discharging the tate. accompt thereof, are well known to appertain only and wholly to us, and not to any inferior judge: 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 Sworn under these presents grant full power and authority to you, in whose fidelity we confide, to -, and administer and faithfully dispose of the said goods, chattels and credits, and to ask, that the intesdemand, recover and receive whatever debts and credits, which, whilst living, and at tate died on the the time of his death, did any way belong to his estate, and to pay whatever debts the said deceased at the time of his death did owe, so far as such goods, chattels and credits will thereto extend, and the law requires: You having been already sworn well and faith- 1834. fully to administer the same, and to make a true and perfect inventory of all and singular the said goods, chattels and credits, and to exhibit the same into the registry of our Prerogative Court of Canterbury on or before the last day of next ensuing, and : and also to render a just and true account thereof, on or before the last day of- the year of our translation. day of CHAP. V. Procedings to enter a caveat so as to prevent or of letters of administration. (b) administration bond, and the parts of which, as well as the remedies thereon, will be presently noticed. For the purpose of allowing any person interested in the deceased's effects an opportunity of contesting the validity of a grant of probate will, or the right of a party to administration, such person can, upon application to a proctor, procure a caveat to be entered in the public registry against a grant of probate or administration issuing unknown to the proctor who entered such caveat. This caveat is entered on behalf of the interested party, in a fictitious name, (as "John Thomas.") By this preliminary measure the party objecting can be apprised of the name and the interest of the party to whom the probate or administration may afterwards be applied to be granted. Caveats are generally entered on the behalf of legatees in a will, or the next of kin, being the parties entitled in distribution of an intestate's effects, after payment of debts or of creditors of the deceased. The usual form of caveat is subscribed. (b) The further proceedings on such a caveat will be presently stated. (c) Of obtaining an claration in lieu. In many cases parties beneficially interested in the due disinventory or de- tribution of the assets, may call upon the parties to whom the probate or administration is to issue, and prior to its passing the seal, to give into Court a declaration in lieu of a detailed inventory of the deceased's effects. This declaration, without specifying the particular effects, gives a general account thereof and of their real or presumed value, according to the belief of the parties on their oath. (d) Of the adminis. tration bond. In all cases where administration issues, a bond is entered into, wherein the amount of the penalty should be double the value of the deceased person's effects. With two or three exceptions, the administrator is required to procure two persons as sureties, who sign a bond to the effect that the administrator will faithfully administer the effects according to law. Of requiring the In some instances the sureties are called upon to justify, that sureties in such is, to depose on oath that they are worth the amount of the bond to justify. penalty mentioned in the bond after payment of their just debts. But in general, (although certainly advisable so as to subject them to a prosecution for false swearing,) the sureties are not called upon to declare whether they are worth the amount of Form of caveat. (b) Let nothing be done in the goods of A. B., late of, in the parish of →→, in the county of deceased, unknown to E. F., proctor for John Thomas, (usually a fictitious name,) having interest." See the further proceedings on such caveat, post, 503. (c) Post, 503. (d) Ante, vol. i. 518, 519. the penalty; and in no case can they be required to state the particulars of their property as bail justifying in a superior Court at Westminster are compellable to do.(e) In which respect the practice of these Courts requires amendment, as it too frequently turns out that the sureties are wholly insufficient, and the creditors or next of kin are without redress. (f) The form of the affidavit of the sureties is subscribed in the note. (g) A husband resident abroad may be directed, on the application of creditors, to give justifying security resident within the jurisdiction, on his taking a grant of administration to his wife. (h) CHAP. V. SECT. X. on the caveat will. The preliminary proceeding generally adopted by parties Of proceedings having a right to contest the validity of a will, is to cause a and contesting caveat to be entered in the public registry of the Court of Pro- the validity of a bate, claiming jurisdiction over the assets of the deceased as we have just noticed. This course prevents the executors therein named, or party applying for probate, from obtaining it, without first establishing the validity of the will; and should the party, who entered the caveat, decide upon opposing the will, then the person applying for the grant has to propound the same and give in an allegation, the contents of which are generally confined to stating or pleading the making and executing the will, and the capacity of the deceased at the time of such execution. The party opposing the validity of the will is then to give in his answer on oath to the allegation, and witnesses are examined in proof of the will. A response, or rather an allegation, pleading the facts and circumstances and grounds of contesting the validity of the will, is then given in, and when admitted, the answers of the adverse party on oath are directed by the Court to be brought in by a time fixed. A counter plea, contradictory of the averments contained in the allegation of the party opposing the will, or explanatory of circumstances therein mentioned and pleaded, is given in by the party propounding. of (e) 2 Phil. R. 280. (f) As in Archbishop of Canterburg v. Tappen, 8 B. & C. 150. the proposed sureties for Y. Z., the and credits of A. B., late of -, in the parish of in the parish of in the county tn the county of Form of affidavit of sureties administrator of all and singular the goods, chattels justifying. deceased, and made oath that they are respectively worth the sum of pounds after payment of their respective just debts. On the day of —————, A. D. 1834, the said E. F. and G. H. were duly sworn to the truth of aforegoing affidavit. Before me, Surrogate. (h) In the goods of Noel, 4 Hagg. Rep, 207; ante, 502, 503. CHAP. V. A few points relating to suits and proceedings connected with probate and letters of admi nistration, &c. The answer of the opposing party is given on oath; witnesses are examined on the several allegations; then publication of their evidence takes place, and if it is not excepted to, the judge proceeds to hear and decide the cause. According to the practice of the Prerogative Court, the facts intended to be relied upon in support of any contested suit, are set forth in a plea, which is termed an allegation, and then is submitted to the inspection of the counsel of the adverse party; and if it appear to him objectionable either in form or substance, he opposes the admission of it. If the opposition go to the substance of the allegation, and it is well founded, then the Court rejects it, by which mode of proceeding the suit is terminated without going into any proof of the facts. (ƒ) The Court of Arches attached to it has jurisdiction over all legacies charged upon or payable out of personal property, and when there is not any continuing trust. (g) In the Prerogative Court all causes are summary. (h) By the practice of the Prerogative Court, the general rule as to costs is, that a party failing in a cause should pay the costs; but that rule is subject to the exception when the Court feel satisfied that proper grounds existed for making a claim. (i) As regards limited administration, the Prerogative Court of Canterbury will, on motion, grant an administration limited to assign a term in the diocese of A., the will of the deceased (who had no goods out of the diocese of B. except this satisfied term,) having been proved in the Court of B., and the chain of executors being subsequently unbroken; and it seems that a diocesan probate can give no authority nor continue any privity as to a satisfied term in another diocese: (k) and on petition the Prerogative Court granted a limited administration to assign a satisfied term even in another diocese. (1) Where a solicitor retained a will which he had prepared as a lien, and the Court of King's Bench had granted a prohibition to the Prerogative Court, staying any proceeding under the will until the lien had been satisfied, that Court nevertheless granted administration to the widow of the testator, limited to her sale of silks, which would deteriorate in value if they (f) Note to Thorold v. Thorold, 1 Phil.' Rep. 1. (g) Grignion v. Grignion, 1 Hagg. R. 535. (h) Law's Oughton, 59. (i) Per Sir J. Nicholl in Cox v. His Majesty's Proctor and Lannesley Prero gative Court, 3d July, 1834. (k) In goods of Mary Powell, 3 Hagg. R. 195; and see Fowler v. Richards, 5 Russ. 39. (1) Crosley v. Archdeacon of Sudbury, 3 Hagg. R. 197. |