SECTION IX. Of what instruments probate is necessary, and what instruments ought not to be proved. If an instrument be testamentary (d), and is to operate on personal estate, whatever may be its form, probate of it must be obtained in the Court of Probate; otherwise its existcannot be recognized in any court of law or Probate must be obtained of every testamentary in- necessarily of one A paper which neither disposes of property nor appoints an executor generally speaking has no testaNo probate of mentary character so as to enable the court to grant paper neither dis- probate of it (e). posing of property executor. ever, merely reing former wills, should be proved. voking or confirm nor appointing But a codicil, not containing any disposition of propA codicil, how. erty, but simply revoking all former wills, is of a testamentary nature, and, if proved, ought to be admitted to probate (ƒ). So if the executor, after probate, discovers any testamentary paper, he ought to bring it into the Court of Probate, even though it be a mere confirmation of the will already proved (g),67 A will of lands Where, however, a will clearly respects land only, only ought not to and no personal property, it ought not to be proved in the Court of Probate (h).68 be proved in the Probate Court: secus, of a mixed will of lands and goods: *But if a will is a mixed will concerning both lands and goods, it must be proved entirely in the Court of Probate (k). (d) As to what is a testamentary instrument, see post, Pt. III. Bk. V. Ch. II. and ante, pp. *93, *94, et seq. (e) Van Straubenzee v. Monck, 3 Sw. & Tr. 6. (f) Brenchley v. Still, 2 Robert. 162. (g) Weddall v. Nixon, 17 Beav. 160. 67. Newton v. Seaman's Friend Society, 130 Mass. 91. (h) Habergham v. Vincent, 2 Ves. 230. by Buller, J. In the Goods of Drummond, 2 Sw. & Tr. 8. In the Goods of Bootle, L. R., 3 P. & D. 177. A will, however, disposing of freehold property which, by the doctrine of equitable conversion, is to be considered as person alty, is entitled to probate: In the Goods of Gunn, 9 P. D. 242. See In the Goods of Barden, L. R., 1 P. & D. 325. 68. But the probate is only presumptive evidence of the validity of the will as to land. Dater v. Wilson, 36 Hun 546; Holman v. Perry, 4 Met. 492; Parker v. Parker, 11 Cush. 530. But the will is no evidence of title thereunder until it has been probated. Willamette . Gordon, 6 Oreg. 175; Jones v. Dorr, Id. 188; Rogers v. Rogers, 78 Ga. 688; New v. Nichols, 73 Id. 143; Turner v. McDonald, 76 Cal. 177; Pettit v. Black, 13 Neb. 142. (k) Partridge's Case, 2 Salk. 553. or where exec are ap: pointed in a will of lands only. Probate of will of married woman made under power disposing only of real property: So the nomination of executors in a testamentary paper, purporting to dispose of real property only, entitles utors And this notwiththe document to probate (7). standing the renunciation of the executor (m). This rule, however, does not hold good in the case of the will of a married woman made under a power of appointment, and disposing of real property only: 69 for the will, although it is in the form of a will as required by the instrument giving the power, is, in fact, a conveyance by means of the appointment exercised, and, although an executor is appointed, the executor takes nothing in his character of personal exception representative. If, however, a married woman making above rule: a will disposing of realty only, and appointing executors (n), has not only a power of appointment given her by the deed, but also a vested interest to her separate use in the real property apart from that power, and she really exercises, not only what rights she had under the power, but the rights which she has beyond it, she is in the position of a feme sole with regard to the real estate, and the will is entitled to probate (o). to In the case of such a mixed will, if there be occasion to prove the devise of the land, in an action concerning it, it was formerly necessary to give the will itself in evidence; but now if notice is given of the intention to put the probate *in evidence, the probate is sufficient evidence of the will and its validity, unless the party, to whom such notice has been given, shall himself give notice that he intends to dispute the validity of the will (p). When an original will is required to be produced in court, the attendance with it of the proper officer, in whose production custody it is deposited, may be procured in the same procured; (1) O'Dwyer v. Geare, 1 Sw. & Tr. 465. In the Goods of Barden, L. R., 1 P. & D. 325. In the Goods of Leese, 2 Sw. & Tr. 442. Brownrigg v. Pike, 7 P. D. 61. In the Goods of Cubbon, 11 P. D. 169. In the Goods of Hornbuckle, 15 P. D. 149, 151. See also Beard. Beard, 3 Atk. 72, ante, p. *164. See further In the Goods of Lancaster, 1 Sw. & Tr. 464. (m) In the Goods of Jordan, L. R., P. & D. 555. 1 of original will: how 69. However, in Massachusetts, when such a power is exercised by a married woman by a testamentary paper, such paper should be approved and declared as such by a court of probate. Heath v. Withington, 6 Cush. 497, 500. (n) In the Goods of Tomlinson, 6 P. D. 209. (0) In the Goods of Hornbuckle, 15 P. D. 149. (p) Stat. 20 & 21 Vict. c. 77, sect. 64. See ante, p. *263; post, p. *481.. manner as in other cases where the production of an original record, or instrument in the nature of a record, is required. where it is doubt If it should be doubtful whether some part of the property be freehold, the Ecclesiastical Court always held, that it ought ful whether all the to grant probate; for the obvious reason that the proproperty is freehold, probate bate may be necessary to the purposes of justice, and no evil can arise from the grant of it (r). ought to be granted. When probate necessary of a will Where a will is made in execution of a power, if it made in execution relates to personalty it must be proved in the Court of of a power. Probate (s). There has already been occasion to show that this has been determined, in regard to an appointment by the will of a married woman, which it is now settled, the courts of equity will not read, until it has been duly proved as a proper will in the Court of Probate (t). But though a court of equity cannot give effect to testamentary papers without probate, it may, perhaps, when necessary, order an inquiry for the very purpose of sending such papers to be proved (u). *However, a will, simply in execution of a power affecting realty, and not even appointing an executor, will be dealt with in chancery without the interference of a court of probate (x). Probate of sealed packets directed by the to opened to legatees. In Pelham v. Newton (y), a testatrix directed her executor to deliver certain parcels sealed up, and directed to certain which were in a small iron chest, to the persons persons, will be delivered un- to whom they were directed, unopened, and desired those persons would not tell one another what was contained in their respective papers: Sir G. Lee was of opinion that the executors could not safely deliver them unopened; for if they should be called to an inventory, they could not give in one on oath, without knowing what was contained in those parcels; and if they assented to them as legacies, and there should not be assets sufficient to pay the (2) By Sir John Nicholl, in Thorold v. Thorold, 1 Phillim. 8, 9: See also the case of Durkin v. Johnstone, Prerog. 1796, decided by Sir W. Wynne, and reported in a note to 1 Phillim. 8. (8) See Sugd. on Pow. 21, 6th edition. Tattnall v. Hankey, 2 Moo. P. C. 342, 351, 352, 353. Goldsworthy v. Crossley, 4 Hare, 140. (t) If, however, the will of a married woman, made under a power of ap pointment, disposes of real property only, it is not entitled to probate, even though it contains an appointment of executors: In the Goods of Tomlinson, 6 P. D. 209. But see In the Goods of Hornbuckle, 15 P. D. 149, for a qualification of this rule. See ante, p. *327. (u) See Brenchley v. Lynn, 2 Robert. 458, et seq., by Dr. Lushington. (x) Per Bayley, B., 4 Hagg. 64. debts, they would be guilty of a devastavit: The learned judge therefore decreed those parcels to be opened in the presence of the registrar, to see what was contained in them: they were accordingly opened in court, and they contained banknotes, some of 20%., and some of 30%. each, of which a schedule was made, of the names of the persons, and of the sum contained under each person's name, to be added as a codicil to the will: and probate was decreed of the will, and all the aforesaid papers, to the executors.70 not necessary: Declaration of In Inchiquin v. French (z), Lord Thomond by his will gave 20,000l. to Sir William Wyndham; and by a deed poll of the Instruments of same date, which referred to his will, he declared that which probate is the legacy was given to him upon trust for Lord Clare: Sir William Wyndham died in the testator's lifetime, trust; and the deed poll was not proved: The question was, whether, though the legatee named in the will had died before the testator, the person, who was the cestui que trust of the legacy, and was substantially the legatee, was entitled to the 20,000l. under the deed poll, which had not been proved as a testamentary paper: Lord Hardwicke held, that the deed poll, though never proved, sufficiently declared the trusts of the legacy of 20,000l., and decreed accordingly. In Smith v. Attersoll (a), a testator bequeathed a legacy to A. and 70. Where a codicil directed the payment of legacies in accordance with directions written in a book by A., which directions were signed by the testator, such book must be admitted to probate. Newton v. Seaman's Friend Society, 130 Mass. 91. (2) 1 Cox, 1. This case is also reported in Ambler, p. 33, and it would seem from the judgment of Hall, V.-C., in Re Fleetwood (15 Ch. D. p. 603), that the report in 1 Cox, upon which Lord Giffard relied in his judgment in Smith v. Attersoll, is incorrect in that the question of whether there was a trust was not really decided; but as Hall, V.-C., points out, Smith v. Attersoll has been referred to in subsequent cases. (a) 1 Russ. Chanc. Cas. 266. As to the cases in which a court of equity will give effect to a trust not disclosed, or not fully disclosed, in the testamentary instrument, and as to what evidence is admissible, see Moss v. Cooper, 1 J. & H. 352, 367; Irvine v. Sullivan, L. R., 8 Eq. 673. The whole of the cases are reviewed by Hall, V.C., in Re Fleetwood, 15 C. D. 603. The ground upon which effect is given to non-testamentary documents is not as acts of the testator, but rather as trusts binding on the conscience of the legatee. If the trust is expressed on the face of the will, but the trusts are not fully declared, no trust afterward declared by a paper not executed as a will could be binding. Johnson v. Ball, 5 De G. & Sm. 85; Briggs v. Penny, 3 Mac. & G. 546; Singleton v. Tomlinson, 3 App. Cas. 404. But the legatee will not, in such a case, take a beneficial interest, B., in trust for certain purposes, which the will stated to have been fully explained to them; on the same day a paper writing was signed by A. and B. in which they declared that the bequest was upon trust for six persons, whose names were stated; and after their signature, some lines were added in the handwriting of the testator, by which a seventh person (an unborn child) was admitted to a share of the legacy: Upon a bill, filed by one of the six persons named in the body of the paper writing, Lord Gifford, M. R., recognized the paper writing as a valid declaration of trust, though it had not been proved as a testamentary paper. ing testamentary From the decisions which have taken place, it is quite *clear that it is A will appoint not necessary that a will simply appointing testamentary guardians; guardians should be proved in the Court of Probate (b). Nor is it necessary to prove a will in the Court of Probate, to entitle A will giving leg a legatee to recover a legacy out of real estate (c). acies out of real estate: or disposing of money directed to be laid rected in land. But probate necessary of will holds considered As a court of equity considers money directed to be laid out in land, as land, the Court of Probate has no jurisdiction over a devise disposing of property so converted (d). And where freehold property is by the doctrine of disposing of free equitable conversion to be considered as personalty, a personalty by will, disposing of it, is entitled to probate (e) but the proceeds of real property sold under the Settled Estates Acts, and not yet converted into realty, have not become personal property in respect of which the Court of Probate has jurisdiction (ƒ). equitable conversion. but will be treated as trustee for the next of kin. In Re Boyes, 26 Ch. Div. 535. On the same principle the court will enforce the trust where no trust appears on the face of the will, provided the court is satisfied that there has been a communication by the testator and acceptance by the legatee. Re Boyes, 26 Ch. D. 531. And it would appear that a trust by communication with the legatee may be created by a communication subsequent to the will. Moss v. Cooper, 1 J. & H. 352, 367; but the trust must be communicated in the lifetime of the testator. Re Boyes, 26 Ch. Div. 531. It was at one time supposed that parol evidence was not admissible to prove the trusts in cases where the trust is re ferred to in the will, and that such evidence was excluded by the effect of the Wills Act, but it would appear from In re Fleetwood, ubi sup., that this distinction between the case of a trust mentioned on the face of the will and a trust, the existence of which is undisclosed, cannot be supported. (b) Gilliat v. Gilliat, 3 Phillim. 222. Lady Chester's Case, 1 Ventr. 207. In the Goods of Morton, 3 Sw. & Tr. 422. (c) Tucker v. Phipps, 3 Atk. 361. (d) By Lord Hardwicke, in Pullen v. Ready, 2 Atk. 590. (e) In the Goods of Gunn, 9 P. D. 242. See In the Goods of Barden, L. R. 1 P. & D. 325. (f) In the Goods of Lloyd, 9 P. D. 65. |