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merely that the direct fact of revocation cannot be proved by such declarations.

The result is, that, in the opinion of a majority of the court, the will should be disallowed, and the decree of the Probate Court

1 See Williams v. Williams, 142 Mass. 515 (1886).

Reversed.1

In James v. Marvin, 3 Conn. 576 (1821), a later will contained a clause expressly revoking an earlier will. It was held that the cancellation of the later will did not revive the earlier one. HOSMER, C. J., said: "The implied revocation of a will, by one made subsequently, with different devises and bequests, rests on a different foundation. The revocation effected by a will merely, is not instantaneous - but ambulatory, until the death of the testator; for although, by making a second will, the testator intends to revoke the former, yet he may change his intentions, at any time before his death (Pow. Dev. 549); and this was the case of Goodright d. Glazier v. Glazier, 4 Burr. 2512. But, a clause of express revocation is something more than a declared intention; it is an act consummated by the execution of the deed or will, in which it is contained, and operating immediately."

After the decision in James v. Marvin, the Connecticut Legislature passed a Statute, by which it was provided that "no will or codicil shall be revoked, except by burning, cancelling, tearing or obliterating it by the testator, or by some person in his presence, by his direction, or by a later will or codicil."

In 1880, when this later Statute was in force, a testatrix, who had previously made a will, made another will, which was inconsistent with the former, but which contained no express clause of revocation. This will was not found after the death of the testatrix, but the former will was carefully preserved. The Supreme Court of Errors of Connecticut held that the former will was revived. Referring to James v. Marvin, the court says: "In the case cited, the court in fact decided two questions: 1st, that a clause in a will revoking former wills took effect immediately; and 2d, that if the subsequent will contained no such clause, it did not affect former wills until it became operative. The first question was directly before the court, the second was only incidentally involved.

"Now the second question is directly raised, and the first is incidentally involved. In the former case the Statute was not in force; now it is. The Statute comes before us now for the first time for a construction. And it must be remembered that the Statute changes the aspect of the first question. It is not now what it was when James v. Marvin was decided. Then any written declaration to that effect revoked a will irrespective of any Statute and without regard to the death of the testator. Now the Statute requires that the writing, in order to have that effect, must itself be a will or codicil, and executed with all the formalities required for such instruments. Under the Statute it may be claimed, and the claim sustained by very respectable authorities, and supported by reasoning of considerable force, that the will, even though it contain a clause expressly revoking former wills, must take effect as a will before the revoking clause will be operative."

After saying that the doctrine as to the effect of a revoking clause in a will, laid down by Hosmer, C. J., in James v. Marvin, has been questioned by Judge Redfield (see 1 Redf. Wills,* 328), and that the weight of authority seems to be in accordance with the latter's views, the court comes to the conclusion that, at any rate where there is no express clause of revocation, the mere making of the second will does not, ipso facto, revoke the former will.

VOL. IV. 29.

CHAPTER VI.

GRANT OF PROBATE AND OF ADMINISTRATION.

NOTE ON THE JURISDICTION AND PROCEDURE OF COURTS OF PROBATE.

I.

Courts having Jurisdiction.

In the earliest times the grant of probate and of administration took place, if at all, in the temporal courts. See 1 Thorpe, Anc. Inst. 413, 500; Hensloe's Case, 9 Co. 36, 38; 3 Seld. Op. 1667-1671, 1677, 1678. But the full and (with the exception of a few manorial courts) exclusive jurisdiction of the ecclesiastical courts in these matters was firmly established before the end of the fourteenth century. See Glanv. Lib. 7, c. 8; Mag. Cart. (John), § 27; St. 31 Edw. III. c. 11; Coote, Ecc. Prac. 21-58; 3 Seld. Op. 1678-1681; Dyke v. Walford, 5 Moo. P. C. 434.

The law administered by the ecclesiastical courts is the ecclesiastical law. 1 Thorpe, Anc. Inst. 495. This, at any rate since Henry VIII.'s time, has been the King's Ecclesiastical Law. St. 25 Hen. VIII. c. 21 (1533), Preamble. See Queen v. Millis, 10 Cl. & F. 534, 680 et seq. The substantive testamentary law seems to be largely of native growth. The contributions taken in England from the Civil Law concerned more the construction than the validity of wills; and next to nothing was taken in testamentary matters from the Canon Law. The procedure, however, in the English ecclesiastical courts was kept closely on the lines of the Canon Law.

The person who has independent jurisdiction in ecclesiastical courts over any territory is the ordinary. (He is usually the bishop.) According to the characteristic of the canon law, he can delegate his judicial authority, and generally does so to one who is called variously official principal, chancellor, commissary, or official. 3 Burn, Ecc. Law (9th ed.) 39; Co. Lit. 344 a; 2 Inst. 398.

England and Wales were divided into two provinces, Canterbury and York. Canterbury had twenty-two dioceses, and York five. In some, but not all, dioceses, there was one or more archdeaconries.

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I. Those not exempt from the usual appellate jurisdiction. Here an appeal lay from the Archdeaconry Courts to the Bishops' Courts, which were called Consistory Courts; from the Consistory Courts to the Provincial Courts of Appeal; and from the Provincial Courts of Appeal to the Court of Delegates.

The Consistory Courts had not only appellate jurisdiction from the Archdeaconry Courts, but also (concurrently with the Archdeaconry Courts, when any) original jurisdiction. Some bishops also had other courts which had jurisdiction (semble not exclusive of the Consistory Courts) over parts only of the diocese. From all the Bishops' Courts an appeal lay to the Provincial Courts of Appeal. In Canterbury the Court of Appeal was called the Court of the Arches, and the judge the Official Principal of the Arches; in York the Court was called the Chancery Court of York, and the judge the Official Principal.

From the Provincial Courts appeals lay to the Court of Delegates, which took the place of the appeal to Rome. This was a commission named for each case by the king, made up of common law judges, usually three, one from each Superior Court, and of from four to six doctors of the Civil Law. See Rep. Ecc. Com. 6. The court

announced its judgment without giving reasons. If it was equally divided, or if no common law judge was in the majority, commissions of adjunct were issued, until a majority with a common law judge in it was obtained. See 1 Lee, 239-241. Finally a com. mission of review might be granted, on recommendation of the Lord Chancellor, which was rarely given. See Mathews v. Warner, 4 Ves. 186. See Rep. Ecc. Com. App. 207-209.

II. The second class of courts included those exempt from the usual jurisdiction. These comprised (1) Royal Peculiars, where the appeal lay formerly directly to Rome. Appeal directly to the Delegates. (2) A few manorial courts, which still retained the power to grant probate and administration within a manor. Appeal directly to the Dele. gates. (3) Peculiars of deans, sub-deans, prebendaries, vicars, &c. Parham v. Templar, 3 Phillim. 223. Appeal directly to the Provincial Courts of Appeal. [N. B. There seem to have been some of these peculiars, which were exempt from the archdeacon's jurisdiction, but not from the bishop's.] (4) Archdeacons' Peculiars. (5) Bishop's Peculiars. (A) In his own diocese, exempt from the Court of the Archdeaconry in which they lay. (B) In another diocese, exempt from the jurisdiction of the bishop of that diocese, and from which appeals lay directly to the Provincial Courts of Appeal. 3 Burn, Ecc. Law, (9th ed.) 94, 95. (6) Archbishop's Peculiars. Some of the peculiars of the Archbishop of Canterbury (mainly in and near London) have a common court, called the Canterbury Court of Peculiars. The judge is called the Dean of the Arches; the office has often been held by the Official Principal of the Arches, vide supra, and the judge is more commonly known by the former title than the latter.

III. The third class of courts comprised the Prerogative Courts, one in each province. Here wills were proved and administration was granted when the deceased left goods in more than one diocese; vide infra. The appeal lay to the Delegates. The Prerogative were purely testamentary courts.

The judges of all ecclesiastical courts could appoint surrogates to sit in their place. The counsel in these courts were called advocates, and had to be doctors of the civil law. They were incorporated into a college, called Doctors' Commons; the proctors corresponded to attorneys.

In 1832 and 1833, by Sts. 2 & 3 Wm. IV. c. 92, and 3 & 4 Wm. IV. c. 41, the appeal to the Delegates from the ecclesiastical courts was taken away, and an appeal given to the Privy Council, acting through the Judicial Committee; in 1857, all jurisdiction in testamentary matters was taken from the ecclesiastical courts and given to a single Court of Probate, from which an appeal lay to the House of Lords; and the exclusive privilege of advocates and barristers was taken away. Under the Judicature Act "the Probate, Divorce, and Admiralty Division" is one of the Divisions of the High Court of Justice. An appeal lies to the Court of Appeal, and thence to the House of Lords. 36 & 37 Vict. (1873), c. 66, §§ 19, 31; 39 & 40 Vict. (1876), c. 59, § 3.

The regular series of reports in the ecclesiastical courts begins in 1809, though Lee's Reports contain opinions, generally brief, from 1752-1758, and the Appendix to the second volume has some cases from 1726-1732. There are very few cases in any other Reports before 1809. The cases are almost all in the Prerogative and Arches Courts of Canterbury and the Consistory Court of London. Instances of cases in other courts will be found, 1 Phillim. 201, 287; 2 Phillim. 403; 1 Add. 96, 124, 411; 1 Hag. Ecc. 48; 3 Hag. Ecc. 618, 726; 1 Curt. 447; 2 Curt. 376; 3 Curt, 338; 1 Notes of Cases, 315.

No process lay for the removal of cases from the ecclesiastical courts by certiorari or otherwise.

Mandamus lay from the Court of King's Bench to compel the judges of the ecclesiastical courts to grant probate of undisputed wills, or to grant administration according to the Statutes. Rex v. Raines, 1 Ld. Raym. 361; Anon., 1 Stra. 552; Rex v. Bettesworth, 2 Stra. 857, 1118; Smith's Case, Ib. 891; The King v. Dr. Hay, 1 W. Bl. 640.

Prohibition was the common process to restrain proceedings in the ecclesiastical courts, usually for exceeding jurisdiction. If prohibition was not granted, a writ called

"a consultation" sent the case back. 1 Wms. Saund. 136–140. Each of the Superior Courts of Common Law could grant a prohibition. In Gorham v. Bishop of Exeter, a prohibition was sought in vain from the three Superior Common Law Courts in succession. 15 Q. B. 52; 10 C. B. 102; 5 Ex. 630. On the question whether the Privy Council could be prohibited, see Combe v. Edwards, 3 P. D. 103; Martin v. Mackonochie, 4 Q. B. D. 697.

In every county of each of the United States there is a tribunal which grants probate and administration. Generally it is a separate court (though sometimes with the same judge as the County Court). Its most common title is Probate Court. In New York, however, it is styled the Surrogate's Court; in New Jersey, the Prerogative Court; in Georgia, the Court of Ordinary; in Pennsylvania and some other States, the Orphans' Court. Sometimes probate and administration are part of the business of the County Court.

An appeal lies, on matters of law, directly or indirectly, to the Supreme (or highest) Court of the State. That court seldom, therefore, has occasion to issue certiorari, mandamus, or prohibition.

II.

Facts necessary to give Jurisdiction.

The Alleged Testator or Intestate must have died. — See Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; and many other decisions and dicta. The only decision to the contrary, Roderigas v. East River Savings Institution, 63 N. Y. 460, seems somewhat shaken by Same v. Same, 76 N. Y. 316. See 1 Woerner, Amer. Law of Adm. 208-211.

Locality. In England, the ordinary of the locality where a testator or intestate died had jurisdiction to grant probate or administration. But if the deceased had bona notabilia, i. e., of the value of £5, within the province but outside the ecclesiastical limit in which he died, only the archbishop in his Prerogative Court had jurisdiction. If it was uncertain whether this last was the case, it was better to take out probate or administration in the Prerogative Court; for the archbishop had jurisdiction over the whole province, and therefore, although if there turned out to be no goods outside of the diocese or other ecclesiastical limit within which the deceased died, a prerogative probate or administration was irregular and voidable, yet it was good until set aside; while, on the other hand, if there were bona notabilia outside of the ecclesiastical limit in which the deceased died, probate or administration granted by the bishop or other ordinary was absolutely void.

If there were bona notabilia in both provinces, two probates were necessary.

On probate where there were bona notabilia in a peculiar, see Lysons v. Barrow, 2 Bing. N. C. 486; Easton v. Carter, 5 Exch. 8; and on the disputes between the archbishops and bishops on the question of the archbishop's prerogative, see Coote, Ecc. Prac. 61-86.

Since St. 20 & 21 Vict. c. 77, § 23 (1857), all jurisdiction has been in one court. In the United States there is much variety in detail, but in general the Probate Court of the county where the deceased last dwelt has jurisdiction; and if the deceased dwelt out of the State, then the Probate Court of the county where he left assets, or, if there are more than one such county, then of that county in which jurisdiction is first taken. There is great diversity of opinion in the United States on the question whether a grant of probate or administration in a wrong locality is void. See Smith (N. H.), 473, note.

Locality of Debts. The locality of a simple debt is where the debtor lives, Casebolt v. Casebolt, Dyer, 305 a, in marg. ; including bills of exchange and promisssory notes, Yeoman v. Bradshaw, 3 Salk. 164; Slocum v. Sanford, 2 Conn. 533; Chapman v. Fish, 6 Hill, 554. Contra, St. John v. Hodges, 9 Baxt. 334. The locality of a bond debt is where the instrument in fact is. Gurney v. Rawlins, 2 M. & W. 87; Beers v. Shannon,

73 N. Y. 292. The locality of a judgment debt is where the judgment is recorded. Daniel v. Luker, Dyer, 305 a; Adams v. Savage, 2 Ld. Raym. 854. The locality of a lease is where the land lies, Dal. 77; of stock, where the stock-book is kept, Arnold v. Arnold, 62 Ga. 627; of the English Funds, in London, Scarth v. Bishop of London, 1 Hag. Ecc. 625. But see Wyman v. Halstead, 109 U. S. 654.

III.
Procedure.

PROBATE is obtained either in common form or in solemn form.

It is obtained in common form on production of the instrument, and oath of the executor that he believes it to be the will. This is enough if the instrument is in regular form. But if it is not in regular form (or if, before the Wills Act, it was not attested), affidavits to prove execution are required.

Proof in solemn form, or per testes. —(1) The next of kin or other person interested in denying the validity of the will may enter a caveat, and the executor must then prove in solemn form. (2) The executor may sua sponte cause the next of kin, &c., to be summoned to come in and attend proof in solemn form. (3) The next of kin or a legatee interested under another will or codicil may after probate in common form cause the executor to be summoned to have the first probate annulled.

When a will is to be proved in solemn form the court directs both parties to file "affidavits of scripts," with all the writings under which they claim appended; and on the next court day these affidavits are filed. Coote, Ecc. Prac. 471–477.

The plaintiff, who is generally the executor, propounds the will, and then brings in his libel (or, as it is called in testamentary causes, his allegation), which comprises the positions and articles, i. e., the matters to be answered by the defendant and by the witnesses. Langdell, Eq. Pl. §§ 16, 21, 25. This allegation may be opposed, which raises a question of law, the judge deciding whether the allegation is to be admitted, rejected, or reformed. Langdell, § 25. The other party puts in his personal answers under oath to the positions, and witnesses are examined on the articles, and crossexamined on interrogatories; then the other party puts in his allegation, the positions and articles of which are answered in like manner. When all the allegations are in, and the answers taken, then and then only the evidence is published. Law (9th ed.) 195; Langdell, §§ 25-29.

3 Burn, Ecc.

A hearing is had, and then judgment given in the form of an "interlocutory decree having the force and effect of a definitive sentence in writing." This differs from a definitive sentence only in the fact that the latter is signed by the judge, while the former is only a statement of the register. It has the same effect as a definitive sentence, and an appeal lies from it. 3 Burn (9th ed.) 207, 210, 211, 218; Coote, 631 et seq.

The proceeding in probate cases is now much simplified in England. In several of the United States the distinction between proof in common form (where the will is proved ex parte) and proof in solemn form exists. The proof in solemn form is sometimes in the Probate Court, sometimes by appeal to a higher court, sometimes by way of bill in equity to set aside the probate. See 1 Woerner, Amer. Law of Adm. § 215. In other States there is but one kind of proof. A common provision is that if there is no opposition, a will may be proved by one witness. Generally there are no pleadings in the probate courts in this country; when there are any, they are very simple. Evidence is given orally. When a case is tried by a jury, it is sometimes on an issue of devisavit vel non, sometimes as to particulars of competency or undue influence.

A lost will may be admitted to probate on proof of its contents on the evidence of one, and he an interested witness. Sugden v. St. Leonards, 1 P. D. 154. But see Woodward v. Goulstone, 11 Ap. Cas. 469.

In a few cases courts have stricken scandalous matter out of the probate, but they do so with hesitation and reluctance. See Goods of Wartnaby, 1 Rob. Ecc. 423;

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