Limited grants.

Grants limited in duration.

CHAPTER V.-SECTION I.

LIMITED GRANTS.

By virtue of secs. 37 and 54 S. C. Act, and in accordance with S. C. Rules, ante, p. 77, as well as under their general jurisdiction, Surrogate Courts will make limited grants.

Referring to the authority of the ordinary to make such grants, the language of the Lord Chancellor in Davis v. Chanter (a) is:-" Except where regulated by statute or custom, what is to prevent the holder of the unrestricted authority from delegating the execution of part to another? And so is the established practice." And in Re Thorpe (b) it is said that "the Court of Probate in this country always exercised the same jurisdiction in granting limited administrations, as was possessed by the Ecclesiastical Courts in England; and I see no reason to doubt that this was rightfully done, and that the Surrogate Courts have now a like authority."

Grants may be limited (c) (1) in duration; (2) to particular property; or (3) to a particular object or purpose. The nature of the limitation is to be collected from the letters (d).

If a testator make an executor from five years after his death, or after the death and marriage of his son, the Court may commit administration to the next of kin in the meantime; and at the expiration of the period for which the administration is limited, probate will be granted to the executor. So, if the executor do not come in, the Court may grant administration limited till he prove the will (e).

copy of a lost

When an original will or codieil, or both, have Probate of a been lost or mislaid since the testator's death, but a will. true copy has been preserved, the executor may take probate of such copy limited until the original or Limited. an authentic copy of it be brought into the registry. But he must produce proof by affidavit, that the original was duly executed; that it was in existence after the testator's death, and has since been lost, and that the copy is a true one (a).

If the executor be appointed during his life, or Probate dur ing life or the executrix be appointed during her widowhood, widowhood. although absolute powers are given, care is taken to show the limitation of the appointment (b).

He must under some circumstances also advertise for the recovery of the lost will or codicil. The form of advertisement is not settled by the registrar.

The directions of the judge, however, are taken as to the newspapers in which the advertisements shall be inserted, and also as to the intervals and number of the insertions.

If the original will or codicil be not recovered by these means an affidavit to that effect is filed.

No consent on the part of the next of kin of the testator is required (c).

draft

Where no copy of the will has been made, but the Probate of draft of it can be produced, the case though otherwise the same as that referred to, is differently considered in one respect. In order to entitle the Court to deal with such cases on motion, the consent of all the next of kin must be obtained (d).

If this consent be not given, the draft must be propounded in a suit for that purpose (e).

(a) Coote, 122.

(b) Ib., 54.

(c) Ib., 123.

(d) Barber, L. R. 1 P. & D. 268; 36 L. J. (N. S.) P. & M. 19; Butts, 2 Spinks, 59; Entichnap 35; L. T. 427; Trippleton, 35, L. T. 909. (e) Burls v. Burls, 36 L. J. (N. S.) P. & M. 125, L. R. 1 P. & D.

When an original will has been lost or destroyed after a testator's death, or has been destroyed in his lifetime by another person without his consent, or by himself without intention, and no draft has been preserved and no copy has been made, with the consent of the next of kin probate may be obtained of Of contents or its contents, or of its substance and effect, if they can be established by credible evidence, parol evidence being admissible (a).

substance.

Contents of lost codicil.

Affidavit of

In all these cases the validity of the execution must be shown, as well as the substance or contents of the will (b).

If a codicil has been similarly lost or destroyed, its contents may be proved in the same manner. The consent of the residuary legatee, under the will, will be required. Should there be no residuary legatee, or should the bequest of the residue have lapsed, the next of kin of the testator must consent. If the executor be the residuary legatee, his application for probate will be an implied consent.

Sometimes the Court has granted probate of an scripts proved. affidavit of scripts (filed in the suit), and at other Deposition of times of a deposition, or an extract from a deposiextract from it tion of a witness, as containing the contents or subproved. stance or effect of the lost will or codicil (c), or the declaration in a suit propounding a lost will (d).

a witness or

Probate of a will limited until a lost codicil be found.

If a codicil has been lost since the testator's death, without a copy having been made, or the draft kept, and its contents or substance cannot be shown, the Court will grant probate of the will limited, until the original codicil, or an authentic copy thereof, shall be brought in (e).

(a)Sugden v. Lord St. Leonards, ante, and see Bessey v. Bostwick, 3 Gr. 279, and Brown v. Brown, 8 Ellis & Black. 876. (b) H. C. Gardiner, 1 Sw. & Tr. 110. (d) Sugden v. Lord St. Leonards ante.

(c) Coote, 124.

(e) Coote, 124.

codicil limited

So, if the will has been lost since the death of the Probate of a testator, and it is impracticable to prove its contents until a lost or substance, the Court will grant probate of a codicil will be found. to that will, containing dispositions independent of,

and referring to it (a).

Where the original will or codicil, or both, were in the possession of a person residing abroad, who refused or neglected to deliver them up, but a copy had been transmitted to the executor in England, probate of such copy was granted to him, on his showing, by affidavit, the manner in which it was transmitted, that a better or more authentic copy did not exist in England, and that it was essential or necessary for the interests of the estate that probate should be forthwith granted, without waiting the arrival of the original, or a better or more authentic copy.

If the copy has been transmitted to a person other than the executor, he will be required to join the executor in the affidavit. The affidavit does not go into the execution of the will or codicil, as in the case of lost or destroyed instruments of that nature (b).

But where a person transmitted to England from abroad copies of his own will and codicil, and afterwards died abroad, and the will and codicil were not forthcoming, the Court held, that as the statement of the deceased, made after the execution of the will and codicil, was not evidence of their execution, the copies were not entitled to probate (c).

So also office copies of Scotch wills which have not received confirmation in a Commissary Court are regarded as unauthentic copies, and similar grants are made in respect of them.

(a) Greig, 14 W. R. 349; L. R. 1 P. & D. 72. (b) Coote, p 125.

(c) J. P. Ripley, 1 Sw. & Tr. 68.

Administration (will) limited.

Limited

during widow. hood.

To next of kin until original will found.

Durante absentia.

To administer a particular estate.

Under the same conditions as those before stated, a copy of a copy of a will or codicil may be proved. When the grants before described are made to a residuary legatee, or any other than the executor, they take the form of letters of administration (with will annexed) limited in the same manner (a).

If a residuary legatee be appointed during widowhood, the grant is limited so long only as she shall continue a widow (b).

The person who applies for letters of administration is required to swear that the deceased died without having made a will. It sometimes happens though no will is forthcoming on the death of the deceased, that the party cannot in conscience take the oath, for he may know or have reason to believe from the deceased's observations, or the information of others that there was a will in existence subsequently to the deceased's death. If no copy of the will can be produced, and its contents or tenor cannot be substantiated, he may take administration limited until the original or a copy be brought in (c).

Where the person entitled is absent from this Province, administration may be granted for the use and benefit of, and limited to the return of, such person (d).

If a testator appoint an executor for the purpose of administering the estate of another testator, whose sole or surviving executor he himself was, probate is granted to him limited for such purpose.

This probate continues the chain of executorship in that particular estate (e).

(a) Coote, p. 126.

(c) Coote, 126.

(b) Thomas Teed, 7 No. Ca. 386.

(d) Pallison v. Ord, Bunb. Exch. 116 (1724); O'Byrne, 1 Hagg. 316 (1828); Ruddy, 2 P. & D. 331 (1872); Re Donovan, Ct. Prob. U. C.

1853, and vide ante p. 39.

(e) Coote, 142-3.