Chap. IX.

Probate of translation.

Whether in

corporated

document should be

included in probate.

16 W. R. 1130; In bonis Earl, 1 P. & D. 450; In bonis Hill, 2 P. & D. 89; Miller v. James, 3 P. & D. 5; In bonis Rule, 4 P. D. 76; see In bonis Prince Henry the 69th, 49 L. J. P. 67; In bonis Dost Aly Khan, 6 P. D. 6; In re Vallance, 48 L. T. 941.

Where the will has been proved abroad the codicils must also be proved abroad. In bonis Miller, 8 P. D. 167.

As to Scotch confirmations, see 21 & 22 Vict. c. 56, sects. 12, 16; In bonis Ryde, 2 P. & D. 86; Hood v. Lord Barrington, 6 Eq. 218; In bonis Ewing, 6 P. D. 19.

As to Irish probates, see 20 & 21 Vict. c. 79, sect. 95.

As to the power of the Court to look at a copy of a will in French when an English translation has been proved, see In re Cliff's Trusts, (1892) 2 Ch. 229.

The question whether documents not in themselves of a testamentary character but incorporated with the will should be included in the probate is mainly one of convenience.

If the document is valid in itself independently of the will, it would seem that it need not be included in the probate, if there is a difficulty in procuring its production. Sheldon v. Sheldon, 1 Rob. 81; In bonis Sebthorp, 1 P. & D. 106.

If the document derives its validity from the will it ought, as a general rule, to be included in the probate. Sheldon v. Sheldon, supra.

If the document inccrporated with the will is itself testamentary it should be included in the probate.

Thus, where an English will refers to and incorporates a foreign will the foreign will must be included in the probate, though the executors of the English will may have nothing to do with the property disposed of by the foreign will. In bonis Harris, 2 P. & D. 83; In bonis Lord Howden, 43 L. J. P. 26; In bonis Crawford, 15 P. D. 212; In bonis Lockhart, 69 L. T. 21.

On the other hand, where the testator makes two independent wills, one disposing of property in England and the other of property in a foreign country, probate may be granted of the English will alone. In bonis Astor, 1 P. D. 150; In bonis Bolton, 12 P. D. 202; In bonis Callaway, 15 P. D. 147; In bonis De La Rue, 15 P. D. 185; In bonis Seaman, (1891) P.

253; In bonis Fraser, (1891) P. 285; In bonis Tamplin, (1894)_Chap. IX. P. 39.

Where the deceased person makes no disposition of his English property, but leaves a will expressly confined to foreign property, administration of the English property will be granted. as upon an intestacy. In bonis Mann, (1891) P. 293.

Where a clause of a revoked instrument is incorporated the clause alone will be included in the probate. In bonis Kehoe, 7 L. R. Ir. 343.

must be

Probate of a will must be applied for in the Probate Division, Where will and no proceedings can be taken under a will of personal pro- proved. perty till the will has been proved, unless, perhaps, probate is alleged and admitted on the pleadings. Pinney v. Hunt, 6 Ch. D. 98; see Tarn v. Commercial Bank of Sydney, 12 Q. B. D. 294; Priestman v. Thomas, 9 P. D. 210; Bradford v. Young, 26 Ch. D. 656; see 29 Ch. D. 617; In re Masonic and General Life Assurance Co., 32 Ch. D. 373.

far evidence

as to realty.

By 20 & 21 Vict. c. 77, sect. 62, it is provided that where the Probate, how will is proved in solemn form, or its validity declared in a contentious matter, the probate shall be conclusive evidence of the validity and contents of the will in all proceedings affecting real

estate.

Sect. 64 provides in effect that if probate of a will not proved in solemn form is intended to be used in an action as evidence of a testamentary disposition affecting realty, ten days' notice before the trial of the intention to use the probate as evidence may be given; and if the opposite party does not within four days after receiving such notice, give notice that he disputes the validity of the will, the probate will be primâ facie evidence of the will, its validity and contents. Barraclough v. Greenhough, L. R. 2 Q. B. 612.

establish will

Where the will has not been proved there can be no doubt Action to that an action will lie in the Chancery Division to establish it, of real estate. so far as it relates to real estate. For the old practice on this

subject,

see a valuable note in Mr. Dunning's Concise Prece

dents, p. 510, et seq.

Probate is conclusive upon the question whether the will does Chancery or does not express the true will of the testator.

Division will

Chap. IX. not set aside

will for fraud of legatee.

If the whole or any part of a will is procured by fraud the objection must be taken when probate is applied for.

After probate of a will has been granted no proceedings can be taken in the Chancery Division to have the legatee of the whole or any part of the property bequeathed declared a trustee on the ground of fraud. Allen v. M'Pherson, 1 H. L. 191; Meluish v. Milton, 3 Ch. D. 27.

It would seem that the same principle would apply even in such a case as that already cited of Mitchell v. Gard, 3 Sw. & T. 75, supra, p. 23, and see Betts v. Doughty, 5 P. D. 26, In re Birchall; Wilson v. Birchall, 29 W. R. 461.

In a Court of Construction no evidence is admissible to show that a clause was left in the will by mistake. In re Bywater; Bywater v. Clarke, 18 Ch. D. 17.

CHAPTER X.

WHAT PROPERTY MAY BE DISPOSED OF BY WILL.

Chap. X. 1 Vict. c. 26,

s. 3.

All property may be disposed of by

will;

customary

By sect. 3 of the Wills Act, it is enacted that every person may, by his will, bequeath or dispose of "all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised, bequeathed or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that the power thereby given shall extend to all comprising real estate of the nature of customary freehold or tenant right, freeholds and or customary or copyhold, notwithstanding that the testator copyholds may not have surrendered the same to the use of his will, or surrender notwithstanding that, being entitled as heir, devisee or other wise to be admitted thereto, he shall not have been admitted thereto, or notwithstanding that the same, in consequence of the want of a custom to devise or surrender to the use of a will or otherwise, could not at law have been disposed of by will if this Act had not been made, or notwithstanding that the same, in consequence of there being a custom that a will or a surrender to the use of a will should continue in force for a

limited time only, or any other special custom, could not have been disposed of by will according to the power contained in

without

and before

admittance;

also such of them as could

not be devised

before the

Act;

autre vie;

this Act, if this Act had not been made; and also to estates estates pur pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold. customary freehold, tenant right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament; and also to all contingent, execu

Chap. X. contingent interests;

rights of entry;

and property acquired after execution of

will.

Devise of copyholds.

Lands liable

to escheat.

Whether an estate pur autre vie to a man and the heirs of his body is devisable.

tory, or other future interests in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any disposition thereof by deed or will; and also to all rights of entry for conditions broken, and other rights of entry; and also to such of the same estates, interests, and rights respectively, and other real and personal estate, as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will."

The effect of this section as regards copyholds is to enable the copyholder to devise his estate without a surrender. Until the devisee is admitted the customary estate descends to the heir. Though the lord will not be compelled to admit the heir if there is a devisee, he cannot seize because the devisee refuses to be admitted if the heir is willing to come in. R. v. Garland, L. R. 5 Q. B. 269; Garland v. Mead, ib. 6 Q. B. 441; see Allen v. Bewsey, 7 Ch. D. 453.

It has been suggested that lands of a testator dying without heirs which would therefore not devolve upon "the heir-at-law of him," but would escheat to the lord, are not within this section, and therefore that a will disposing of lands in such a case must be executed with the formalities required by the Statute of Frauds. Williams' Real Prop. 17th ed. p. 53, note; Dunning's Concise Prec. p. 3. But see, as to the construction of a similar clause in a colonial statute, Wentworth v. Humphrey, 11 App. C. 619, P. C.

It appears to be doubtful whether an estate pur autre vie limited to a man and the heirs of his body could be disposed of before the Wills Act, if the entail had not been barred. The better opinion seems to be that it could not; see Campbell v. Sandys, 1 Sch. & Lef. 294; Hopkins v. Ramage, Batty, 365; Blake v. Luxton, Coop. 185; Allen v. Allen, 2 Dr. & War. 307, 326; and see Doe v. Luxton, 6 T. R. 293; see 1 Jarman, 61.

The Wills Act apparently leaves the point where it was, since