mentioned below, where an absolute bequest is made upon a secret trust accepted by the legatee, though fine is real.

In the latter cases the legatee would be enabled to commit a fraud if evidence of the trust were not admitted. In the former cases he is a trustee upon the face of the will, and cannot therefore in any case take beneficially. Where a gift is made in absolute terms, but the testator Secret before or after the date of his will communicates to the legatees his intention that they are to hold the gift in trust, and they either accept the trust or acquiesce in it by silence, evidence of the trust is admissible. Moss v. Cooper, 1 J. & H. 352.

trust.

trust.

Where a gift is made to A. and B. on the faith of a pro- Gift procured by mise by A., given before the gift is made, to apply it to promise to certain trusts, the trust is fastened on to the gift to both, hold it in though B. may not have been aware of the trust, on the principle that no one can take advantage of a gift procured by fraud. Russell v. Jackson, 10 H. 204.

persons

Where a gift is made to A. and B. as tenants in common, Gift to the intention being to create a trust which is subsequently who subcommunicated to A. but not to B., the gift to A. only is sequently fixed with the trust. Tee v. Ferris, 2 K. & J. 357; Row- trust. botham v. Dunnett, 8 Ch. D. 430.

If the gift is made to joint tenants, and the trust is subsequently disclosed to and accepted by one of them only, it seems the trust is fastened upon the whole gift. See Jones v. Badley, 3 Eq. 635; Rowbotham v. Dunnett, 8 Ch. D. 430.

In cases of secret trust the intention to create a trust must be clearly established. Jones v. Badley, 3 Ch. 362; McCormick v. Grogan, L. R. 4 H. L. 82.

accept

F

What may be proved.

Instru

ment appointing

executor.

Contingent will.

Contingent codicil.

ment ap

CHAPTER IX.

PROBATE AND ITS EFFECT.

EVERY instrument containing a testamentary disposition of personal property, or affecting a prior testamentary disposition, is entitled to probate if properly executed and attested. In bonis Durance, 2 P. & D. 406.

A testamentary instrument appointing an executor is entitled to probate, though the executor renounces probate. O'Dwyer v. Geare, 1 Sw. & T. 465; 29 L. J. P. 47 ; In bonis Lancaster, 1 Sw. & T. 464; In bonis Jordan, 1 P. & D. 555.

A will to take effect upon a contingency is not admissible to probate for any purpose if the contingency does not happen, and is inoperative to revoke a previous will. In bonis Hugo, 2 P. D. 72.

But the principle does not apply to a codicil which will be admitted to probate, even if it is conditional and contains a declaration that it is not to be proved unless the condition is fulfilled, as it may have the effect of republishing the will. In bonis Da Silva, 2 Sw. & T. 315; In bonis Colley, 3 L. R. Ir. 243.

Instru- An instrument appointing guardians merely is not pointing entitled to probate. In bonis Morton, 33 L. J. P. 87. guardians. In the case of wills of married women, if the will is Wills of married tendered for probate on the ground that it disposes of separate estate, the Probate Division should decide whether there was any separate estate, and grant or refuse probate accordingly. In bonis Tharp, 3 P. D. 76.

women.

In the case of a will made by a married woman under a power, if all the persons interested are before the Court, the Probate Division should decide whether there was a power, and also whether it has been executed. In bonis Tharp, 3 P. D. 76.

A will disposing of real estate only, though the real Will of realty. estate may be directed to be converted and debts and legacies may be directed to be paid, is not entitled to probate. In bonis Drummond, 2 Sw. & T. 118; In bonis Bootle, 3 P. & D. 177.

But a will disposing of realty only is entitled to probate if the testator appoints an executor. In bonis Jordan, 1 P. & D. 555; In bonis Miskelly, I. R. 4 Eq. 62.

The will of a married woman made in pursuance of a power, and taking effect only upon real estate, is not entitled to probate where the married woman survives the coverture without republishing the will, though an executor may be appointed. O'Dwyer v. Geare, 1 Sw. & T. 465. In bonis Barden, 1 P. & D. 325, must be supported on this ground if at all.

will.

Where a testator makes two wills not referring to each Foreign other, one of property in England and the other of property abroad, and appoints different executors, the foreign will is not entitled to probate. In bonis Cood, 1 P. & D. 449.

A foreign probate will not affect personal property in Foreign England, but a duly authenticated copy of a will proved in probate. a foreign country will be admitted to probate in England without further evidence of the validity of the will. In bonis Smith, 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. As to Scotch confirmations, see 21 & 22 Vict. c. 56, ss. 12,

Whether incorpo

16; In bonis Ryde, 2 P. & D. 86; Hood v. Lord Barrington, 6 Eq. 218; In bonis Ewing, 50 L. J. T. 11.

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

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

document

should be

included in venience.

probate.

Where

will must

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 Sibthorp, 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 incorporated 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.

On the other hand, where the English will, though confirming a foreign will, expressly declares that the English will is to take effect independently of the foreign will, the latter need not be included in the probate. In bonis Astor, 1 P. D. 150.

Probate of a will must be applied for in the Probate be proved. Division, and no proceedings can be taken under a will of personal property till the will has been proved, unless, perhaps, probate is alleged and admitted on the pleadings. Pinney v. Hunt, 6 Ch. D. 98.

Probate,

how far evidence

By 20 & 21 Vict. c. 77, s. 62, it is provided that where the will is proved in solemn form, or its validity declared

in a contentious matter, the probate shall be conclusive as to realty. evidence of the validity and contents of the will in all proceedings affecting real estate.

Section 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 prima facie evidence of the will, its validity and contents. Barraclough v. Greenhough, L. R. 2 Q. B. 612.

to establish

Where the will has not been proved there can be no Action doubt that an action will lie in the Chancery Division to will of establish it, so far as it relates to real estate. For the old real estate. practice on this subject, see a valuable note in Mr. Dunning's Concise Precedents, p. 510, et seq.

Division

will not

will for fraud of

legatee.

Probate is conclusive upon the question whether the will Chancery does or does not express the true will of the testator. If the whole or any part of a will is procured by fraud set aside 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. McPherson, 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. 22; and see Betts v. Doughty, 5 P. D. 26; In re Birchall; Wilson v. Birchall, 29 W. R. 461.