ferent me

thods of proving the will.

SECTION II.

Of the Probate, Bona notabilia, and in general of evidence of wills in all courts.

THE proof of wills in the ecclesiastical court may Of the dif- be, as we have already shewn, either in the common or in the solemn form. For the first method of proof nothing is requisite but that the executor should present the will before the judge, without any citation of the parties interested, deposing that it is the true and last will of the testator, upon which the will passes, and is allowed. But the proof in form of law, or in the solemn form, is, when the will is brought before the judge in the presence of the parties interested, who are cited to attend, and is subjected to a full examination before it is finally allowed.

Where the common form only has been pursued, the will is open to be disputed before the ecclesiastical judge at any time within 30 years; but where the more formal method has been adopted, the will cannot be disputed after the time limited for appeals has elapsed".

When a will is proved in either of the before-mentioned forms, the original is deposited in the registry of the ordinary or metropolitan, and a copy in parchment is made out under his seal, and delivered to the executor, together with a certificate of its having been

2

Vide sup. 1 Vol. 169. Where this subject is more fully consi dered.

3 Bac. Abr. 40.

proved before him. And these documents together constitute the probate.

In general, probate can only be granted in the court of the ordinary or metropolitan, but it may be granted by courts baron if they can found a claim to such privilege upon prescription, and have exercised it from time immemorial. So also in some boroughs the probate of the wills of the burgesses may belong to the mayor by custom in respect to lands devisable within such boroughs; though still as to personal property the will must be proved before the ordinary.

In common cases, if at the time of the testator's death his property be all comprised within one diocese, the executor ought to prove his will before the bishop of that diocese, or his surrogate.

bilia.

BONA NOTABILIA are goods to the amount of 51. Bona notaexcept where the amount is varied by particular custom, as in London where they must amount to 10l®. and debts owing to the testator are bona notabilia as well as goods in possession. If there are bona notabilia of the testator in two distinct dioceses, or in several peculiars within the same province, the will must be proved before the metropolitan. If there are bona notabilia in several provinces, probate shall belong to the archbishop in each province in respect to the bona notabilia lying within his own province"; but if they lie partly in different dioceses of one province, and partly in one diocese only of the other; in

respect of the former, the archbishop shall have the probate; in respect to the latter the particular bishop'. If a man dies possessed of goods in London and Dublin, it seems that the grant of administration to the goods in London belongs to the archbishop of Canterbury, and of the goods in Dublin to the archbishop of Dublin. If the death happen in one diocese, and all the effects are in another diocese, provided they amount to 57. the archbishop shall have the probate'. But the goods which a man has with him, while on a journey, do not constitute bona notabilia in the place where they happen to be ".

Where a testator dies possessed of goods in the diocese of an archbishop, and in a peculiar of the same diocese, there must be separate probates for them respectively ".

Probate always belongs to the archbishop if the party dies beyond sea, though he leaves goods in one diocese only. And the probate of every bishop's testament, or granting administration of his goods, although he has no goods but within his own diocese, belongs to the archbishop".

If the probate be granted by a bishop or inferior judge when it does not belong to him it is void; but if it be granted by the metropolitan when it does not belong to him, it is only voidable, and is of force until reversed by sentence.

'Off. Ex. 48. Off. Ex. 45.

* Gibs. 472.

'11 Vin. Abr. 80.

4 Burn's Ecc. L. 232. 1 Bl. Com. 380.

3 Bac. Abr. 36. Roll. Abr. 236.

⚫ 4 Inst. 335.

4 Burn. Eccl. L. 193. 11 Vern. Abr. 75. 80. Gibs. 472.

Whatever may be the amount of the testator's effects in the diocese in which he dies, unless he leaves in another diocese goods to the value of 51. they will not be bona notabilia', though if there are goods in two other dioceses amounting to 57. in the whole they shall be bona notabilia and give the archbishop the probate'.

A lease or term for years, if of the value of 5l. is bo:ia notabilia where the lands lie'; and debts" due to the deceased of that amount, however desperate, are also bona notabilia; but if there be a bond in the penalty of 51. for the payment of a less sum though forfeited, it shall not be considered as bona notabilia *.

Debts by specialty are bona notabilia in that diocese where the securities were, and not where the testator lived, at the time of the testator's death'; but debts by simple contract follow the person of the debtor, and are therefore bona notabilia in the diocese where the debtor resided at the time of the creditor's death. Thus a judgment obtained in one of the Courts of Westminster, makes bona notabilia where the record is. But a debt on a bill of exchange follows the person of the debtor.

acting

An executor incurs a penalty of 50l. under the Penalty on Stat. 37 Geo. III. c. 90. s. 10. if he acts but neglects without

3 Bac. Ab. 37.

4 Burn's Ecc. L. 232. 1 Roll. Abr. 908, 909.

3 Bac. Ab. 37.

* Off. Ex. 46.

"3 Bac. Ab. 47.

3 Bac. Ab. 37. Shep. Touchst. 463.

* Dyer 305. in note. 11 Vin. Ab. 80.

3 Salk. 164. Ld. Raym. 854. 11 Vin. Ab. 77. 80.

taking out to take out probate within six months after the death six months. of the testator"; nevertheless, if he accepts the office,

probate for

An executor cannot have probate till 21.

Where

there are

ecutors,

probate

may be

granted to

reserva

he is still entitled to the probate; and upon the Ordidinary's refusal may have a writ of mandamus to compel him to grant it. But the Bishop may return to the writ the pendency of a suit before him in respect to the will".

the

Before the statute 38 Geo. III. c. 87. an infant of age of seventeen was capable of taking out probate, and consequently of maintaining an action as executor, though during his minority he must have sued by guardian or prochein amy; but by this statute he cannot have probate till he attains the age of twenty-one, and is by consequence restrained from bringing an action till that period.

Where there are several executors one may take several ex- out probate with a reservation for the rest, who may afterwards apply for the probate which will be granted to the person applying, annexed to an engrossone with a ment of the original will; but if they all apply together, one probate is sufficient. A probate may be commensurate with the will, and limited to the specific effects to which the will extends, and an administration may be granted with respect to the rest of his property.

tion for the rest:

Where there is

No probate ought to be granted of wills concernboth real ing lands only; but where there is both real and per

and perso

nal proper sonal property, there must be an entire probate.

ty probate

must be of On which subject the law was distinctly laid down by

the entire

will.

11 Vin. Ab. 205.

4 Burn's Eccl. L. 244.

4 Burn's Eccl. L. 244.

* Ld. Raym. 262. Burr. 2295.

3 Bac. Ab. 30.

11 Vin. Ab. 57. 60. 117. 2 Salk. 552. 3 Salk. 22.