An appointment of executors by a will is rightly viewed as a mere request that the persons named will undertake the office. The request may be refused even although compliance with it was promised in the testator's lifetime. This general right of renouncing probate may be exercised in various ways. The executor may renounce in person, when he swears that he has not acted as executor, or by proxy under a power of attorney, or by writing, for it was long since held that a letter written to the ordinary, who formerly had jurisdiction over wills, declining probate, was a sufficient renunciation.1 But such a renunciation may be withdrawn at any time before it is recorded, for until it is recorded letters of administration will not be granted to anyone else, and until such letters are granted he may retract his renunciation.2 And, conversely, an executor may renounce after he has been sworn, but before he has taken probate or administered. To meet the case of an executor doing nothing, he may be cited by the Court to appear to accept or refuse probate, and disobedience to the order to appear may be a contempt of Court. If he does not appear, or appears and declines probate, letters of administration cum testamento annexo may then be applied for. Formerly, as there was scarcely any limit to the time given to an executor to decide whether he would accept probate, much inconvenience arose in cases where some of the executors proved and died, and the other executors neither proved nor renounced, for they might even then have claimed probate. It was accordingly provided by section 16 of the 21 & 22 Vict. c. 95, that " whenever an executor appointed in a will survives the testator, but dies without having taken probate, and whenever an executor named in a will is cited to take probate and does not appear to such citation, the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his effects shall and may, without any further renunciation, go,

1 Wentworth's Office of an Executor, 88, 89; Re Rosser, 3 Sw. & Tr. 490; Re Boyle, 3 Sw. & Tr. 426.

2 Re Morant, 3 P. & D. 151. 3 Re Veiga, 32 L. J. P. M. & A. 32; Jackson v. Whitehead, 3 Phill. 577.

devolve, and be committed in like manner as if such person had not been appointed executor." When the statute applies the executor is treated just as if his name were not in the will.1

The power of renunciation is gone, however, where the executor has once administered-that is, when he has either acted as executor or done such an act as, if he were not executor, would make him executor de son tort. He may then be compelled to accept probate, and if he neglects for six months after his testator's death to prove the will, he becomes liable to the heavy penalties imposed by the statute 55 Geo. III. c. 184, s. 37. Still, the Court may, after an executor has meddled with the estate, accept his renunciation in its discretion, and grant administration cum testamento annexo to some other person; but even in that case the meddling executor may be sued as executor. And it seems that when one of several executors has administered, he will not afterwards be allowed to renounce, but he will be joined with his colleagues in the probate.2

Upon renunciation by a sole executor or by all the executors, administration with the will annexed will be granted to some other person, and upon the administrator's death administration de bonis non of the testator's estate will be granted, the rights of the renouncing executors being gone.3 And now as the rights of an executor who renounces cease, just as if he had not been named in the will, where an executor renounces and another proves the will, upon the death of the latter the renouncing executor cannot retract his renunciation, but administration de bonis non will be granted to some other person.*

CHAPTER V.

OF PROVING THE WILL.

ANCIENTLY, and until the statute hereinafter mentioned was passed, wills were proved in the Ecclesiastical Courts. The proper Court was generally the Court of the bishop of the diocese in which the testator resided; but if the testator possessed a sufficient amount of goods (called bona notabilia) in another diocese, the Court having jurisdiction was the Prerogative Court of the archbishop of the province. Exceptions to these jurisdictions existed in certain places called peculiars, and many difficulties arose where a testator had bona notabilia in divers dioceses, provinces, or countries, so that the Legislature interfered by passing the statute 20 & 21 Vict. c. 77, which (section 3) abolished the jurisdictions of the Ecclesiastical and other Courts in testamentary questions, (section 4) created a Court of Probate, since, by the Judicature Act, 1873, converted into the Probate Division of the High Court of Justice, with full jurisdiction, both voluntary and contentious, in all testamentary matters, and having generally the same authority as the old Prerogative Court of the Archbishop of Canterbury had in the province of Canterbury. But by the 23rd section of the Act it was provided, saving the authority of the Chancery Division in the construction of wills and in the execution of trusts and the administration of the estates of deceased persons, "that no suits for legacies or suits for the distribution of residue shall be entertained by the Court, or by any Court or person whose jurisdiction as to matters and causes testamentary is hereby

abolished." The Probate Division has, therefore, no power to construe wills. Other sections of the Act give that division the usual powers of the superior Courts in matters of procedure and in enforcing its decrees. By the statute 21 & 22 Vict. c. 95, s. 17, power is given to the Probate Division to amend its grants, and in order to cure the defects of previous void, voidable, or imperfect grants, it is by section 86 of the same Act provided that such previous grants, if not then already annulled or put in suit, should be validated; and by section 87, that grants made before the Act should have the same force as if granted under the Act; and by section 88 that grants of probate or administration might be granted of personalty not included in previous grants, such and all other secured or subsequent grants being (section 20) granted out of the registry in which the original will is registered or the original grant of administration made.

By the Act 20 & 21 Vict. c. 77, amended by the Act 21 & 22 Vict. c. 95, a concurrent contentious jurisdiction was given to the County Court of the district in which the deceased lived, where the personalty was less than £200, and the realty less than £300. In these cases a certificate of the decree of the County Court judge (section 55 of the former Act) is transmitted to the district registrar, and thereupon a grant is issued or revoked from the district registry. Appeals from the decision of the County Court judge in probate matters lie to a Divisional Court of the High Court. The Probate Division has very large powers under the statute 20 & 21 Vict. c. 77, to compel the production and proof of wills. It may (section 26) in a summary way, in a suit or otherwise, order any person to produce any papers purporting to be testamentary, and interrogate any person believed to have any knowledge of such papers. The Court has also general powers to either, on its own mere motion, or when moved thereto by any person having an interest, even, it is said, by a person having no interest, but who wishes by the probate to ascertain whether he has not an interest under the will,1 to

1 Godolphin, Pt. 1, c. 20, s. 2.

cite an executor to prove a will, and to accept or refuse the executorship. And the possessor of a will may not refuse to produce either because he disputes the jurisdiction, or because he claims a lien on the will for labour or the like;1 and it is of so much importance to have wills guarded by the Court, that even disputed wills ought to be brought in for custody.

Wills proved in the Principal Registry, and copies of wills preserved in district registries are to be kept in one place of deposit under the control of the Court.2

By another section of the Act (section 89), the old Ecclesiastical Courts were ordered to transmit the wills in their possession to the Probate Division. When evidence of a will is necessary, it is usually afforded by a production of the probate, i.e., the copy of the will which the Court delivers out to the executor or administrator; but in the rare cases in which the actual will must be produced, the Probate Division will order an officer of the Court to attend with the will, or, security being given for its return, it may be handed out on an order of the Chancery Division.

The will of a living person may be deposited in the custody of the Probate Division, but cannot be proved until after the testator's death. It cannot be proved for seven days after the testator's death, nor after three years from the death, except upon proof of the cause of delay certified to the registrars of the Court. Proof at an early date is in every way desirable, and this is well recognised in practice, and encouraged by a statute enacting heavy penalties for intermeddling with an estate without obtaining probate or letters of administration within six months after the death, or within two months after the determination of a suit respecting the will or right to letters of administration.5

Wills are proved in common form, where there is no dispute as to the probate, or in solemn form (or per testes) where there 8 20 & 21 Vict. c. 77, s. 91. 4 Gen. Rules and Orders, 1862,

1 Lord v. Warmleighton, 1 Jac. 580; Brown v. Coates, 1 Add. 345.

2 20 & 21 Vict. c. 77, s. 66.