The late Mr. Justice Talfourd.-Testamentary Jurisdiction Bill. 375. TESTAMENTARY JURISDICTION. BILL. WE conclude the summary of this Bil p. 354. Procedure of the Court. 48. Probates of wills, grants of administration, and certificates of intestacy shall be obtained through the Testamentary Office, in such or the like manner, as near as may be, as probates and grants of administration have been heretofore obtained in the Prerogative Court, except so far as is otherwise provided by this Act, or may be otherwise provided by any general orders to be made in pursuance o this Act. benevolent and enlightened disposition shone forth at an early period of his life. Whilst at school he wrote a poem on the education of the poor. His fertile imagination was also evinced at the same period in "An from our last Number, Indian Tale;" to which may be added a didactic poem on the union and brotherhood of mankind. He was also the author of "An estimate of the Poetry of the Age," in which he zealously defended Mr. Words worth from the hostile attacks which were made upon him by almost all the critics of the time. He also contributed many articles to the Encyclopædia Metropolitana, the Edinburgh Review, and several Magazines. His celebrated tragedy of "Ion was 49. The person or some or one of the perwritten in 1834, and on the 26th May, sons applying for any probate of a will affect1836, it was represented at Covent Gar- ing personal estate or any grant of administraden Theatre, then under the management tion shall, before such probate or administraof Mr. Macready. His "Athenian Cap- tion shall be granted, make an affidavit, with a Schedule annexed thereto, in a form similar to tive" was subsequently produced, and the form set forth in the Schedule (B.) to this afterwards "Glencoe.' He also edited Act, with such variations as the nature and "The Remains of Charles Lamb," and circumstances of the case may require. other works. These were followed by his 66 'Vacation Rambles.' He married soon after he was called to the Bar, and has left a widow and three sons and two daughters, to lament his grievous loss. One of his sons was called to the Bar in Michaelmas Term, 1852. It remains only to add, that throughout his life he was distinguished alike for his kindness and generosity and his prompt and brilliant intellect. During his career at the Bar, for nearly thirty years, he acquired the regard and esteem even of the competitors whom he surpassed. His elevation to the judgment-seat made no difference in the warmth of his friendship or the affable courtesy of his manner to all, however humble, who approached him. He held his high office meekly and nobly, and though he has not lived long to enjoy its dignity, he died honoured and respected throughout the land which gave him birth, and his renown will extend wheresoever the English language is understood. In the words of Mr. Justice Coleridge, addressed to the Grand Jury at Derby, "he had one ruling purpose of his life-the doing good to his fellow-creatures. He was eminently courteous and kind, generous, simple-hearted, of great modesty, of the strictest honour, and of spotless integrity." This is the highest praise from a man of kindred excellence, pre-eminently competent to pronounce a just, sincere, and discriminating opinion. 50. When probate of any testator's will, whether consisting of one instrument only or of two or more instruments or sets of instruments, and as to such instrument or all or any of such instruments or sets of instruments operating on real estate as well as on personal estate, shall have been granted to the executor or any one or more of the executors thereby appointed, such probate shall enure for the benefit of the person or persons to or for whose benefit the real estate devised by such testator shall have been devised, and such probate shall be conclusive evidence in all Courts and before all tribunals of the will of the deceased, subject, however, to be questioned in a suit to be instituted in the Court for the purpose of recalling or revoking such probate, or for establishing the same. 51. Citation to executors, &c. to prove will. 52. Such grant not to prejudice any subsequent grant. 53. Devisee of real estate devised by a will may obtain probate of such will. minister real estate also. 55. Where a person dies, leaving an instru ment affecting real estate, and another personal estate, separate probates to be granted, but in no other case. 56. Grant of probate of administration unrestricted as to real or personal estate, to be conclusive evidence that testator left no other will. 57. Grant of probate or administration restricted to real or personal estates to be conclusive evidence in like manner. 58. Expense of probate to be borne by person applying for same. 59. Suit to establish will, &c., may be instituted by bill or claim. 60. No demurrer for want of parties, but suit to proceed if Judge think fit. 376 Testamentary Jurisdiction Bill. 61 Certificate of intestacy to be issued to neir or persons interested, and shall enure for benefit of heir, &c. 62. Such certificate to be granted upon affidavit of person applying. 63. Practice as to caveats in the Court to correspond with practice as to caveats in the Prerogative Court. 64. The issuing of any such caveat as last aforesaid, and all proceedings thereunder, shall be deemed and taken to be of the nature of common form business.' may be otherwise inconsistent with the provisions of this Act, shall apply to, govern, and be observed by the Court with respect to common form business, in the same manner as such Statutes, laws, usages, and practices apply to, govern, and were observed by the Prerogative Court. District Offices the value of 1,000l. 71. The affidavit or affidavits so to be made 70. Probate of administration shall not in any case be granted through any district office, unless it shall appear by the affidavit of the per65. It shall be lawful for any party to any the same, that the testator or intestate, as the son or some or one of the persons applying for suit in the Court for establishing any will or intestacy, or for obtaining, recalling, or revok- case may be, died in England or Wales, and at the time of his death had a fixed place of abode ing any probate, administration, or certificate of intestacy, to apply to the Court in a sum-made, nor unless the personal estate or effects within the district in which the application is mary way for an order calling upon any person, of the deceased, exclusive of what he shall though not a party to the cause, to produce have been possessed of as a trustee and not and bring in to the Testamentary Office of the Court, or otherwise as the Court may direct, beneficially, shall have been sworn to be under any paper or writing being or purporting to be testamentary, made or purporting to be made by or for the deceased person whose will shall be in contest in the cause, which may be shown to be in the possession or under the control of such person; and if it shall not be 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 concluding that he has the knowledge of any such paper or writing, it shall be lawful for the Court to direct such person to be examined upon interrogatories respecting the same, and such person shall be bound to answer such interrogatories, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default in not answering such interrogatories, or not producing or bringing in such paper or writing, as he would have been subject to in case he had been a party to the cause and had made such default as aforesaid; and the costs of all such proceedings and of such pro duction as aforesaid shall be in the discretion of the Court. 66. Court may direct validity of a will to be tried at law by a jury. 67. Orders, &c., of the Court may be versed. re shall be conclusive for the purpose of authorising the grant of probate or administration through the district office; and no grant of probate or administration made through any district office shall be liable to be recalled, revoked, or otherwise impeached by reason only land or Wales, or had no fixed place of abode that the testator or intestate died out of Engwithin the district, or that his personal estate and effects amounted to or exceeded the sum of 1,500l. in value, and whether the person or persons making such affidavit or affidavits were or were not aware of the truth of the case at the time of making the same. 72. Upon application being made to any district registrar, for any probate or administration, such registrar shall receive such application, and take into his custody the will for the probate of which such application is made, or which is proposed to be annexed to the letters made, and shall administer such oaths as shall of administration for which application is be necessary to be taken before such probate or administration can be granted; and the probate or administration shall be prepared by the solicitor of the person making such application, under the direction of such registrar; 68. Power to make rules and regulations. and when such probate or administration shall 69. The course of proceeding in the Court have been perfected, with the exception of afin common form business shall, except where fixing the seal thereto, such registrar shall otherwise provided by this Act, or by any rules without delay transmit through the General or orders to be from time to time made by the Post Office, in a sealed bag or parcel, such Lord Chancellor in pursuance of this Act, so probate or administration, with the affidavits far as the circumstances of the case will admit, and other papers which may be required for be according to the present form and manner granting such probate or administration, to of proceeding in the Prerogative Court; and one of the record keepers, in order that the seal force in the Prerogative Court, save and except shall have been affixed to such probate or adall Statutes, laws, usages, and practices now in of the Court may be affixed thereto by the proper officer in London; and when such seal so far as such Statutes, laws, usages, and prac-ministration the same shall be sent by the retices, or any of them, may be repealed, altered, or varied by this Act, or by any order or orders cord keeper, through the General Post Office, to be from time to time made thereunder, or in a sealed bag or parcel to the registrar by whom the applicatlon for the same shall have Can this be correct? Does not a caveat been transmitted, in order that the same may take the case out of the "common form " be delivered to the executor or administrator class?-Ed. entitled thereto. Testamentary Jurisdiction Bill. 377 all subsequent proceedings thereunder, where the probate of grant or administration follows as of course, and to either party according to the tenor of the citation or other process, shall be deemed and taken to be common form business. 73. The registrar of each district shall retain in the district registry all wills to be taken into his custody as aforesaid, for the space of six calendar months, to be computed from the time at which the application for probate thereof or for administration with the same annexed shall have been made, and shall permit the same to be there inspected by all persons in the same Transmission of Wills and other Documents. manner as wills in the custody of the Prerogative Court are now permitted to be inspected, and others, at request of principal registrar, to 81.Judges of the present Ecclesiastical Courts or otherwise as the Lord Chancellor shall from transmit all wills, &c., in their possession, &c., time to time direct, and shall, at the expiration to the record keepers, to be deposited in Tesof the said period of six calendar months, transmit such will through the General Post Office, tamentary Office, there to be arranged for rein a sealed bag or parcel, to the record keeper of the Court. 74. Together with every probate or administration which shall be sent to the record keeper of the Court to be sealed, there shall be transmitted by the district registrar an official copy of the will of which such probate shall be granted, or which shall be annexed to such administration, which official copy shall be retained and deposited in the Testamentary Office, and shall and may be inspected by all persons at such office until the original will shall be transmitted to the record keeper, who, upon receipt of such original will, shall return the official copy to the registrar of the district from which the same was originally received, there to be retained and deposited in the registry of such district, where the same may be inspected in like manner as the original will or a copy thereof may be inspected in the Testamentary Office in London. 75. Duty of record keeper. 76. Caveats against the grant of probate or administration may be entered in any district office, and the proceedings thereunder shall be similar in all respects to proceedings under caveats entered in the Testamentary Office in London. 77. It shall not be competent for any district registrar to receive any application for a certificate of intestacy. 78. It shall not be obligatory on any person to apply for probate or administration through any district office, but in every case such application may be made at the Testamentary office in London for such probate or administration, wherever the residence of the testator or intestate may have been, and whatever the amount of the property. Citations or other Processes. 79. Citations or other processes calling upon executors or other persons to accept or refuse probate or administration, or to show cause why it should not be granted to the person suing out the process, shall be issuable from the Testamentary Office in London, and also (in cases in which, under the provisions of this Act, probate or administration may be obtained through any district office), from such district office, and the same shall be made returnable in the office from which the same shall have been issued. 80. Such citations or other processes, and ference. 82. Penalty for default. 83. Power to Lord Chancellor to arrange for deposited in Testamentary Office. temporary custody of wills, &c., until same are Kalendars. 84. Kalendars made in the Testamentary Office to be printed and furnished to district registrars. Limitation of time of proceeding. 85. Except as hereinafter provided, no suit or proceeding shall be instituted or taken to establish any will, or to revoke or recal any probate of a will or grant of administration, after the expiration of 20 years from the date of the certificate of intestacy or grant of administration or probate, as the case may be. 86. If at the time of the granting or issuing any certificate of intestacy, or probate, or administration, with respect to the estate of any deceased person, the person or some or one of the persons entitled to establish the will of such deceased person, or to revoke or recal such probate or administration, shall have been or shall be under the disability of infancy, coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, then and in such case such person, so under disability, or any person claiming under him, may institute or take any suit or proceeding for the purpose of esta blishing any will of such deceased person, or of revoking or recalling any probate or administration of his estate, within 10 years after the removal of such disability, or after the death of the person under disability, which shall have first happened. 87. Any devisee of real estate or any heir, or any person claiming under any such devisee or heir, may institute a suit or proceeding for the purpose of establishing a will or revoking or recalling probate, so far as respects his own interest only, at any time within the period within which, if this Act had not passed, he might have sued at law or in equity for the recovery of the estate or property devised by such will or claimed as upon an intestacy, or the rents or profits thereof. 88. In cases of fraud it shall be lawful for the Court to authorise the person aggrieved or supposed to be aggrieved thereby to proceed, notwithstanding the expiration of the limited period hereinbefore fixed for the purpose. 378 Real Estate. Testamentary Jurisdiction Bill. 89. None of the provisions herein before contained with reference to the real estate of deceased persons shall extend to the real estate of persons dying before the time appointed for the commencement of this Act. Fees and Expenses. 90. Lord Chancellor to prepare table of fees to be taken by officers of Court, with power to vary same as he may think fit, and to publish same in Gazette. No other fees to be taken. 91. No officer to retain for his own use any fees, or accept gratuity. Penalty. 92. Prosecution of offenders. 93. Fees not to be paid in money, but by stamps. 94. So much of the Suitors in Chancery Relief Act as applies to the collection of fees by stamps incorporated; except that separate accounts to be kept. Commissioners of Inland Revenue to retain expenses, &c., and pay residue into Bank of England to an account, "The Testamentary Fee Fund Account." Acts relating to stamps under Commissioners of Inland Revenue incorporated. 95. Provisions as to stamps. 96. Power to Lord Chancellor to provide offices, &c., and for the making, writing, printing, counting, and examining official documents and records of the Court and offices, and other copies of such documents and records, and for necessary articles for the offices, and for all other necessary expenses relating thereto. Void and voidable Probates or Administrations. 97. All probates and administrations granted before the time appointed for the commencement of this Act, which may be void or voidable by reason only that the Courts from which respectively the same were obtained had not jurisdiction to grant such probates of wills or administration, shall be and be deemed for all purposes whatsoever to be and to have been as valid as if the same had been obtained from the Courts entitled to grant such probates and administrations respectively: Provided always, that any void or voidable probate or administration shall not be made valid by this Act, when another probate of the same will or other etters of administration of the same personal estate shall subsequently, but before the time appointed for the commencement of this Act, have been granted out of the proper Court; nor when such probate or administration shall have been revoked, or determined by any Court of competent jurisdiction to have been void, before that time; nor so far as the same respects any personal estate which at the time of the passing of this Act shall be in the possession of any person who would not have been entitled thereto if the same probate or administration were valid; nor shall this Act prejudice or affect any proceedings pending at the time of the passing of this Act in which the validity of any such probate or administration shall be in question between the person claim ing under the same and the person claiming adversely thereto, and such probate or administration, if the result of such proceeding shall be to invalidate the same, shall not be rendered valid by this Act; and if such proceedings shall 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 any such probate or administration shall retain such right, so that he may commence proceedings for enforcing the same within six calendar months after the death of such party. Administration Bonds. 98. Sureties in administration bonds. Real Representative. 99. Power to Court to appoint real representative. 100. Power to real representative to sell and convey; and to mortgage. Pending Suits. 101. All suits, whether original or by way of appeal, which shall be depending in any Court in England or Wales respecting the grant of probate of any will or administration of the effects of any deceased person shall be transferred, with all the proceedings therein to the Court of Chancery, there to be dealt with and decided according to the rules and practice of that Court, except so far as the Court may think it expedient to adopt for the purposes of such transferred suits or any of them the rules or practice of the Court in which the same Court of Chancery shall, for the purposes of shall have been pending, to which end the such suits, be deemed and taken to have all the powers and jurisdiction to all intents and purposes possessed by the Court from which such suit shall be transferred: Provided always, that this enactment shall not apply to proceedings by way of appeal pending before her Ma jesty in Council, which proceedings shall be carried on and prosecuted in the same manner in all respects as if this Act had not been passed: Provided also, that every person who, if this Act had not been passed, might have appealed to her Majesty in Council against any proceeding, decree, or sentence of any Court respecting the grant of any probate or administration, may, notwithstanding the provisions of this Act, appeal to her Majesty in Council against such proceedings, decree, or sentence. Salaries and Retiring Allowances, &c. 102. Salaries of officers. 103. Power to Lord Chancellor to remove any officer becoming infirm or incapable, and to limit retiring allowance. 104. Mode of compensating retiring officers, &c. Proviso. 105. Power to persons holding any office, whose incomes are affected by Act to make claim on Treasury for compensation. Proviso. Compensation to Judge of Prerogative Court. Proviso. 106. Time of payment of salaries, &c. Testamentary Jurisdiction Bill.-Points in Common Law Practice. 107. Compensation to Rev. R. Moore. 108. Power to Lord Chancellor to order surplus of Testamentary Fee Fund to be paid into the Exchequer. If fund insufficient to defray salaries, &c., Commissioners of the Treasury to provide for the same. 109. This Act shall not extend to Scotland or Ireland. SCHEDULE A. Districts and Places of District Offices through out England and Wales. Counties of Northumberland and Durham,(a) at Durham. Counties of Cumberland and Westmoreland at Carlisle. County of York, (b) at York. County of Lancaster except the Hundred of Salford and West Derby and the City of Manchester, at Preston. City of Manchester and Hundred of Salford, at Manchester. Hundred of West Derby in Lancashire, Chester, (c) Flint, Denbigh, Carnarvon, Anglesea, at Chester. Counties of Derby, Nottingham, (d) Leicester, at Nottingham. County of Lincoln, (e) at Lincoln. Counties of Salop, Merioneth, Montgomery, at Shrewsbury. Counties of Rutland and Northern Division of Northampton and Counties of Huntingdon and Cambridge, (f) at Peterborough. County of Norfolk, (g) at Norwich. County of Suffolk and Northern Division of the County of Essex, at Ipswich. County of Bedford and Southern Division of Northampton, (h) at Northampton. Counties of Warwick (i) and Stafford, (k) at Lichfield. Counties of Radnor, Brecknock, Hereford, Monmouth, at Hereford. Counties of Cardigan, Carmarthen, (7) Pembroke, (m) Glamorgan, at Carmarthen. Counties of Worcester, (n) and Gloucester, (o) except Bristol, at Gloucester. Cities of Bristol and Bath, at Bristol. Counties of Oxford, (p) Berks, Bucks, at Oxford. (a) Including the Towns of Newcastle-uponTyne and Berwick-upon-Tweed. (b) Including the City of York and Ainsty and the Town of Kingston-upon-Hull. (c) Including the City of Chester. (d) Including the Town of Nottingham. (e) Including the City of Lincoln. Including the University of Cambridge. (g) Including the City of Norwich. (h) Including the Town of Northampton. (i) Including the City of Coventry. (k) Including the City of Lichfield. (4) Including the Town of Carmarthen. (m) Including the Town of Haverfordwest. (n) Including the City of Worcester. (0) Including the City of Gloucester. (p) Including the University of Oxford. 379 County of Somerset, except the city of Bath, at Bridgewater. County of Devon, (q) at Exeter. East Division of the County of Kent, (u) at the County of, Essex, Hertfordshire, Surrey, London, Middlesex, Southern Division of West Kent, in London. SCHEDULE B. Contains the form of Affidavit and Schedule. SCHEDULE C. Is intended to contain the annual salary of each officer, but the salaries are at present left blank. POINTS IN COMMON LAW FINES AND RECOVERIES' ACT. DESCRIP- THE affidavit in support of a motion for an WARRANT OF ATTORNEY TO TRUSTEES OF A warrant of attorney was given in 1837, to three trustees of the National Provincial Bank of England, to secure a debt due from the (9) Including the City of Exeter. (8) Including the Town of Southampton. (u) Including the City of Canterbury, and such of the Cinque Ports and their dependencies as are locally situate in the County of Kent. |