Court of

probate

for the

Hence it appears that the exclusive jurisdiction in the probate of wills and granting of administration, which substituted formerly belonged to the ecclesiastical courts, is now completely and universally throughout England trans- cal courts ferred to the newly created court of probate. (p)

The consequence of this exclusive jurisdiction is, that ecutor cannot assert or rely on his right in any other court, without showing that he has previously established it in the court of probate (q) the usual proof of which is, the production of a copy of the will by which he is appointed, certified under the seal of the court. This is usually called the probate, or the letters testamentary. (r) In other words, nothing but the probate

at law, but as in equity, to inform the conscience of the court, and under its direction. Higbee v. Bacon, 11 Pick. 423; Wood v. Stone, 39 N. H. 575; Patrick v. Cowles, 45 N. H. 553." See Roderigas v. East River Savings Institution, 15 Am. Law Reg. (N. S.) 205.]

(p) By sect. 23, all suits pending at the time of the act, in any court in England, respecting any grant of probate or administration shall be transferred to the court of probate (but this enactment is not to apply to the privy council). And by stat. 21 & 22 Vict. c. 95, s. 14, in the same way all non-contentious business also shall be deemed to have been transferred to the court of probate, and all oaths and bonds sworn and executed as required by any ecclesiastical court in reference to such business, prior to January 11, 1858 (the day when the court of probate act, 1857, came into operation) shall be as effectual as if sworn or executed in pursuance of the court of probate act or this act. [A judge of probate, who has written a will, is, in New Hampshire, disqualified to sit upon the probate of it, but, upon appeal, the will may be proved in the court above. Moses v. Julian, 45 N. H. 52. The will written by the judge of probate, and executed under his direction, though in violation of law, is not void. Moses v. Julian, supra; Stearns v. Wright, 51 N.

ecclesiasti

univer

sally.

tor cannot

an exThe execurely on his temporal courts, the prothe probate dinary:

title in the

without

duction of

of the or

H. 600. As to disqualification of a judge of probate on the ground of interest, relationship, or affinity, see Moses v. Julian, 45 N. H. 52; Hull v. Thayer, 105 Mass. 219; Gay v. Minot, 3 Cush. 352; Bacon, appellant, 7 Gray, 391; Sigourney v. Sibley, 21 Pick. 101; Aldrich, appellant, 110 Mass. 189; Stearns v. Wright, 51 N. H. 600; post, 587, note (e); Cottle, appellant, 5 Pick. 483; Coffin v. Cottle, 9 Pick. 287. As to the difference between the effect of interest as a disqualification of a judge of probate, and relationship, see Wells J. in Aldrich, appellant, 110 Mass. 193, 194.]

(q) Hensloe's case, 9 Co. 38 a; Wentw. Off. Ex. 83, 14th ed.; Treat. on Eq. bk. 4, pt. 2, c. 1, s. 2; Chaunter v. Chaunter, 11 Vin. Abr. 205; [Tappan v. Tappan, 30 N. H. 50; Willard v. Hammond, 21 N. H. 385; Strong v. Perkins, 3 N. H. 517, 518; Kittredge v. Folsom, 8 N. H. 111; Lord Romilly M. R., L. R. 6 Eq. 222; Kinnebrew v. Kinnebrew, 35 Ala. 628.]

(r) The "letters testamentary" incorporate by necessary and express reference the will annexed. Therefore, when oyer was craved of the letters testamentary, the plaintiff was bound to give a copy as well of the will as of the certificate of the ordinary. Daly v. Mahon, 4 Bing. N. C. 235. [The trust confided to an executor is defined by his letters testamentary,

(or letters of administration with the will annexed, when no executor is therein appointed, or the appointment of executor fails), or other proof tantamount thereto of the admission of the will in the court of probate is legal evidence of the will in any question respecting personalty. (8) The will of a deceased sovereign of the realm is no exception to this rule, notwithstanding (as it has already appeared (t)) no probate of such a will can be granted by the court of probate. (u)

The probate is, however, merely operative as the authenticated evidence, (u1) and not at all as the foundation of the executor's title; (u2) for he derives all his interest from the will itself, (u3) and the property of

relation of the probate to the tes

the deceased vests in him from the moment of the tes-
tator's death. (x) Hence the probate, when produced,
is said to have relation to the time of the testator's death.
death. (y)

tator's

Courts of equity are

courts of

construc

tion of

*It should further be observed that a court of equity considers an executor as trustee for the legatees in respect to their legacies, and, in certain cases, as trustee for the next of kin of the undisposed-of surplus; (y1) and as all trusts are the peculiar objects of equitable cognizance, courts wills: of equity will compel the executor to perform these his testamentary trusts with propriety. (y2) Hence, although in those courts, as well as in courts of law, the seal of the court of probate is conclusive evidence of the factum of a will, (2) an equitable jurisdiction has arisen of construing the will, in order to enforce a proper performance of the trusts of the executor. The courts of equity are consequently sometimes called courts of construction, in contradistinction to the court of probate. (z1)

It should be observed, that as long as the ecclesiastical courts

(x) Hensloe's case, 9 Co. 38 a; Graysbrook v. Fox, Plowd. 281; Comber's case, 1 P. Wms. 767; Smith v. Milles, 1 T. R. 480; Woolley v. Clark, 5 B. & Ald. 744; S. C. 1 Dowl. & Ryl. 409; Treat. on Eq. bk. 4, pt. 2, c. 1, s. 2 ; [Wilson v. Wilson, 54 Missou. 213.]

(y) Graysbrook v. Fox, Plowd. 281; Wentw. Off. Ex. 115, 14th ed.; Whitehead v. Taylor, 10 Ad. & El. 210; Ingle v. Richards, 28 Beav. 366; [Fuller, ex parte, Story, 327; Strong v. Perkins, 3 N. H. 517, 518; Fleeger v. Poole, 2 McLean, 189; Hill v. Tucker, 13 How. (U. S.) 458, 466; Hall v. Ashby, 9 Ohio, 96; Spring v. Park man, 3 Fairf. 127. So upon the probate of the will (in which no executor is named) and the appointment of an administrator with the will annexed, the personal property vests in him by relation from the death of the testator. Gray J. in Drury v. Natick, 10 Allen, 174.]

(y) [This is so held in all cases in the United States. 2 Story Eq. Jur. § 1208; Hays v. Jackson, 6 Mass. 153; Hill v. Hill, 2 Hayw. 298; Wilson v. Wilson, 3 Binn. 557.]

(y2) [A will contained the following provision: "Should any questions arise as to the meaning of this instrument, I direct that the distribution of my estate shall be made to such persons and associations as my executors shall determine to be my intended legatees and devisees, and their construction of my will shall be binding on all parties interested." Three executors were named, one of whom was interested as a legatee and another was a near relative of one of the legatees. It was held, 1st. That the provision in question was a qualification of all the legacies and devises, which the testator had full power to make. 2d. That the executors had full power to act in the matter, and that their interest and relationship did not affect their power. 3d. That if their power was abused, a court of equity would restrain them. 4th. That the executor directly interested might properly decline to act upon any matter affecting his interest. Wait v. Huntington, 40 Conn. 9.]

(z) See post, pt. 1. bk. vI. ch. I.

(21) [See Hayes v. Hayes, 48 N. H. 219, 229, 230.]

and so were

astical

had the exclusive testamentary jurisdiction, they were also courts of construction as well as courts of probate; because the ecclesi- suits for legacies might have been brought therein. Incourts: deed, the cognizance of legacies in former times belonged exclusively to the ecclesiastical jurisdiction; for the court of chancery, till Lord Nottingham extended the system of equitable jurisprudence, administered no relief to legatees. (a) But the new court of probate is not a court of construction; (a1) for, as it has already appeared, (b) the 23d section of the act by which

but the new court of probate is not.

21 & 22

Vict. c. 77,

of probate

witnesses.

it was created expressly prohibits it from entertaining any such suit.

By section 24, "The court of probate may require the attendance of any party in person, or of any person whom it may think fit to examine or caused to be examined, in any er of court suit or other proceeding in respect of matters or causes to examine testamentary, and may examine or cause to be examined, upon oath or affirmation, as the case may require, parties and witnesses by word of mouth; and may either before or after, or with or without such examination, cause them or any of *them to be examined on interrogatories, or receive their or any of their affidavits or solemn affirmations, as the case may be; and the court may by writs require such attendance, and order deeds, &c. to be produced before itself or otherwise any deeds, evidences, or writings, in the same form, or nearly as may be, as that in which a writ of subpoena ad testificandum, or of subpœna duces tecum, is now issued by any of her majesty's superior courts of law at Westminster and every person disobeying any such writ shall be considered as in contempt of the court, and also be liable to forfeit a sum not exceeding one hundred pounds."

As to pro

duction of

By section 25, "The court of probate shall have the like powers, jurisdiction, and authority, for enforcing the attendance of persons required by it as aforesaid; and for punishing persons failing, neglecting, or refusing to

Sect. 25. Power of the court

to enforce orders.

(a) Deeks v. Strutt, 5 T. R. 692.

(a1) [See Hayes v. Hayes, 48 N. H. 219, 229, 230. In this case the question was upon the construction of a will which created a trust, and related to the conflicting claims of different parties to the beneficial interest in the fund. The pro

bate court was called upon to settle the
construction of the will, determine the
rights of the parties, and enforce the ex-
ecution of the trust. It was held that
these questions properly belonged to the
general jurisdiction in equity.]
(b) Ante, 291, 292.

produce deeds, evidences, or writings, or refusing to appear or to be sworn, or make affirmation or declaration, or to give evidence, or guilty of contempt, and generally for enforcing all orders, decrees, and judgments, made or given by the court under this act, and otherwise in relation to the matters to be inquired into and done by or under the orders of the court under this act, as are by law vested in the high court of chancery for such purposes in relation to any suit or matter depending in such court." (c)

By stat. 21 & 22 Vict. c. 95, s. 17, "The judge of the court of probate shall have and exercise the same power of altering and amending grants of probate and letters of administration, made before January 11, 1858, (d) as any ecclesiastical court had and exercised in respect of such grants."

21 & 22
s. 17.
Judge of
the court of

Vict. c. 95,

probate

may

amend grants made before Jan.

11, 1858. Cases of or voidable of bona notabilia

grants void

by reason

In order to meet the case of grants made before the act, which were void or voidable by reason of there being bona notabilia, (e) and also of grants which, though not void or voidable, were not sufficiently extensive by reason of not reaching property situate out of the jurisdiction of the court that made the grant, the following fore the enactments have been inserted in the court of probate act. act, 1857, 20 & 21 Vict. c. 77.

made be

probate

s. 86.

voidable

By section 86, "All grants of probates and administrations made before the commencement of this act, which may 20 & 21 be void or voidable by reason only that the courts from Viet. c. 77, which respectively the same were obtained had not juris- Void and diction to make such grants, shall be as valid as if the probates same had been obtained from courts entitled to make ministrasuch grants: provided that any such grants of probate or administration shall not be made valid by this act, when the

(c) [See, ante, 292, note (o1).] This section does not constitute an order of the probate court for payment of money a charge on land, within the stat. 1 & 2 Vict. c. 110, s. 13. Pratt v. Bull, 1 De G., J. & S. 141; S. C. 4 Giff. 117. [Judges of the probate courts in Massachusetts may keep order in court, and punish any contempt of authority in like manner as such contempt might be punished in the superior court. Genl. Sts. c. 117, § 33.

and ad

tions.