*is to be recited. And so on, if there are more that come in afterward (x).

Probate where

there are several

executors with

If there be several executors appointed with distinct powers, as one for one part of the estate, and another for another, yet there being but one will to be proved, one proving of it suffices (y). So if B. is made executor for ten years, and afterward C. is to be executor, and B. proves the will, and the ten years expire, C. may administer without any further probate (z).

distinct powers: or for distinct por

tions of time.

Limited probate.

The court may grant a limited probate where the testator has limited the executor (a). And it is laid down (b) that if a man makes and appoints an executor for one particular thing only, as touching such a statute or bond and no more, and makes no other executor, he dies intestate as to the residue of his estate, and as to this specialty only shall have an executor, and must have a will proved: but in case he makes another will for the residue of his estate, there must be two wills proved. However, where there is an executor appointed without any limitation, the court can only pronounce for the will, or for an absolute intestacy: It cannot pronounce the deceased to be dead intestate as to the residue, though the executor may eventually be considered only as a trustee for the next of kin (c). Where an executrix was appointed in a codicil, which gave her a legacy, and nominated her, together with an executor named in a previous will, executors of the will and codicil, declaring it to be a part of the will, and giving them the residue in moieties, it was held that she had a right to propound both the will and codicil, if she thought proper, though the other executor prayed probate of the *will alone, and opposed the codicil; for if the codicil was good, it was part of the will, and gave her an immediate interest in the will; and if she propounded and proved the codicil alone, the next of kin might afterward oppose the will, and force her into a second suit, which would be unreasonable (d),63

(x) 4 Burn, E. L. 310, Phillimore's edition. In the Goods of Bell, L. R., 2 P. & D. 247.

(y). Wentw. Off. Ex. 31, 14th edit. Bac. Abr. Exors. (C.) 4.

(z) Anon. 1 Freem. 313. Anon. 1 Chan. Cas. 265. See Watkins v. Brent, 1 Mylne & Cr. 104.

(a) 1 Cas. temp. Lee, 280. Davies v.

An

executor

named in a codicil may propound

both the will and

codicil.

Probate of a will cannot be granted to the executor while a contest subsists about the validity of a codicil; for that being be had undetermined, it does not appear what is the will, and during a lis pendens as to a codi- the executor cannot take the common oath (e).

Probate of a will cannot

cil:

In a case (f), however, where a question arose as to unless by consent. the validity of a codicil revoking the appointment of a co-executor, and the estate required an immediate representation, probate of the undisputed instruments was granted to the other executors, with consent of the co-executor, reserving all questions (g).

If a will has been proved abroad, probate of the codicils, if any, must be granted by the court which granted probate of

Probate of codicil

where will has the will (h).

been abroad.

ecutor.

proved

It has already appeared, that where there is a sole. Executor of ex- executor, or sole surviving executor, the office is transmissible, and his executor becomes the representative of the original testator (i): and in such a case, no new probate of the original will is requisite (k).

Probate of the

will of feme covert Women's Prop

before Married.

erty Act, 1882.

Where a married woman, before the Married Women's Property Act, 1882, made a will by virtue of a power, or of *property enjoyed by her separately, such will, as there has been already occasion to show, might be admitted to probate, without the consent of her husband (7). Where the will sought to be established was made by her under a power, it was held that the instrument creating the power must be pleaded in the allegation of the executor, and exhibited (m). The probate, howLimited form of ever, of the will of a feme covert before the act was not probate. general, but limited to the property over which she had

than twenty years after that of the will, will be set aside, because it impeaches the validity of the will, which cannot be ⚫ contested, under § 2000 of the Code of Alabama, after the expiration of five years. Watson v. Turner, 89 Ala. 220. (e) Neagle v. Castlehaven, 2 Cas. temp. Lee, 246.

(f) Fowlis v. Davidson, 4 Notes of Cas. 149.

(g) Where, however, there is no lis pendens, but the court is informed of the existence of codicils abroad, which cannot be produced, the court will, under special circumstances, grant probate of papers forming part only of the will,

the executor undertaking to prove the other papers or authentic copies thereof, when they arrive: In the Goods of Robarts, L. R., 3 P. & D. 110.

(h) In the Goods of Miller, 8 P. D. 167.

(i) Ante, p. *204.

(k) Wankford v. Wankford, 1 Salk. 309.

(1) See ante, p. *50.

(m) Temple v. Walker, 3 Phillim. 394. In the Goods of Monday, 1 Curt. 590. And by Rule 15 (1862), P. R. (non-contentious) now repealed, it must have been specified in the grant of the probate, &c. See ante, p. *53.

a disposing power (n). And her husband was entitled to have a grant of administration cæterorum (0).

When the will of a married woman, made before the commencement of the act is tendered for probate on the ground that she had separate property, and the probate is contested, if the court is satisfied that there is separate property it has power to grant probate of all such property as the testatrix had power to dispose of without deciding what the property is, although, in general, it is the duty of the court, so far as the evidence and pleadings enable it to do so, to decide judicially of what such property consists (p).

Probate of will

covert

Since the commencement of the Married Women's Property Act, 1882, the limitation in the probate of the will of a married woman, to which reference has been made above, is no longer required, and the court will make a general grant (q).

of feme
Women's

since the Married
Prop-
erty Act, 1882:

no longer limited

but general grant.

*The effect of the general probate is only to enable the executor to get in all the assets of the wife whether she has power to dispose of them or not, and it does not effect the beneficial title to them (r).

In general cases, if the will be limited to any specific effects of the testator, the probate shall also be so limited, and an administratio cæterorum granted (8).

(n) Tappenden v. Walsh, 1 Phillim. 352. Tucker v. Inman, 4 M. & G. 1049. Ledgard v. Garland, 1 Curt. 286. See In the Goods of Boswell, 3 Curt. 744. In the Goods of Martin, 3 Sw. & Tr. 1. In the Goods of De Pradel, L. R., 1 P. & D. 454. In the Goods of Richards, L. R., 1 P. & D. 156. In the Goods of Cubbon, 11 P. D. 169.

(0) Brenchley v. Lynn, 2 Robert. 441, 471. See 4 M. & G. 398, per Tindal, C. J. (p) In the Goods of Tharp, 3 P. D. 76. (q) In the Goods of Price, 12 P. D. 137. See also In the Goods of Homfray, ib. 138 n. Re Lambert, 39 C. D. 626. These cases were decided upon the New Rules of April, 1887. Rules 15 and 18, of which the following is the substance, as set out in In the Goods of Price, ubi sup.: "In a grant of probate of the Will of a married woman, or the Will of a widow made during

Administratio cæterorum.

.coverture, or letters of administration with such Will annexed, it shall not be necessary to recite in the grant, or in the oath to lead the same, the separate personal estate of the executrix, or the power or authority under which the Will has been, or purports to have been, made. The probate, or letters of administration with Will annexed, in such cases shall take the form of ordinary grants of probate or letters of administration with Will annexed, without any exception or limitation, and issue to an executor, or other person authorized in usual course of representation to take the same: a surviving husband, however, being entitled to the same in preference to the next of kin in case of a partial intestacy."

(2) Smart v. Tranter, 43 C. D. 587. (8) Wentw. Off. Ex. 30, 14th edit. Toller, 67.

When the will is proved, the original is deposited in the registry (t), and a copy thereof in parchment is made out under the seal of the court, and delivered to the deposit of will in executor, together with a certificate of its having been proved; and such copy and certificate are usually

There has already been occasion to explain the nature of a probate Probate in fac in facsimile, and the occasions on which such a probate is granted (u). The operation of it will be further *considered hereafter, together with the subject of the effect of probate, and letters of administration generally (x).

If a will be in a foreign language, the probate is granted of a translation of the same by a notary public (y). But it in a foreign lan- should seem that the temporal courts are not bound by it, and may themselves correct any inaccuracy in it (z).64 Where the probate is lost, the Spiritual Court never granted a second, but merely an exemplification of the probate from their own records, and such exemplification was evidence of the will having been proved (a).65

The probate may be revoked either on suit by citation (e. g. where

the executor, after proof in common form, is cited to prove the will in solemn form, or even after proof in solemn form, where Revocation of the probate is shown to have been obtained by fraud, or probate on citation or appeal. the will of which it has been granted is proved to have been revoked, or a later will made) (b), or on appeal to a higher tribunal. But it will be more convenient to consider the mode of such revocation, and its consequences, at a future stage, conjointly with the revocation of grants of administration (c).

SECTION VIII.

Of mandamus to compel probate.

No longer power

As matters testamentary in which, before the passing of the Judicature Act, the Court of Probate had exclusive jurisdiction, are by that act assigned to the Probate to compel probate Division of the High Court, it seems clear that the power to compel probate by mandamus no longer exists.

by mandamus.

The Queen's Bench Division in which, as the successors of the old Court of Queen's Bench, the right to issue a manda*mus is vested, is powerless to control by mandamus the proceedings of any but an inferior court; and thus it has no power to superintend or control the judges of another division of the same court, should they exceed their authority or decline to exercise the jurisdiction which they possess.66

In the former editions of this work, Pt. I. Bk. IV. Ch. II. § 8, will be found a reference to the power of the temporal courts, formerly existing over the ecclesiastical courts exercised by mandamus or prohibition.

true copy of the will. Effinger v. Hall, 81 Va. 94. So evidence that a will had been copied in a book, kept by the clerk of the proper court, according to the requirements of law, is competent evidence as to its existence and probate, when the records of the court in which the original will would have been probated have been destroyed. Nelson v. Whitfield, 82 N. C. 46.

And although the rule is that secondary evidence is admissible in the proceeding to establish the lost record of a will, it was held that although a witness who heard the will read may testify to

its contents after it has been lost where such evidence is the best the case admits of, though where such a witness is eighty-five years old, and states that she heard the will read sixty-eight years before, her evidence alone is insufficient to establish the will. Apperson v. Dowdy, 82 Va. 776.

(b) Wentw. Off. Ex. 111, 112, 14th edit.

(c) Post, Pt. I. Bk VI. Ch. II. 66. In Illinois, the discretion of the Probate Court will not be interfered with by mandamus. People v. Knickerbocker, 114 Ill. 539.