testament of the personal estate. (p) Yet it is the safer and more prudent way, and leaves less in the breast of the ecclesiastical judge, if it be signed or sealed by the testator, and published in the presence of witnesses: which last was always required in the time of Bracton ;(q) or, rather, he in this respect has implicitly copied the rule of the civil law.10

No testament is of any effect till after the death of the testator. "Nam omne testamentum morte consummatum est: et voluntas testatoris est ambulatoria usque ad mortem."(r)" And therefore, if there be many testaments, the last overthrows all the former(s) but the republication of a former will revokes one of a later date, and establishes the first again.(t)"

Hence it follows, that testaments may be avoided three ways: 1. If made by a person labouring under any of the incapacities before mentioned: 2. By making another testament of a later date: and, 3. By cancelling or revoking it. For, though I make a last will and testament irrevocable in the strongest words, yet I am at liberty to revoke it: because my own act or words cannot alter the disposition of law, so as to make that irrevocable which is in its own nature revocable.(u) For this, saith lord Bacon,(w) would be for a man to deprive himself of that which of all other things is most incident to human condition; and that is, alteration or repentance. It hath also been held, that, without an express revocation, if a man, who hath made his will, afterwards marries and hath a child, this is a presumptive or implied revocation of his former will, which he made in his state of celibacy.(x) The Romans were also wont to set aside testaments as being inofficiosa, deficient in natural duty, if they disinherited or totally passed by (without assigning a true and suf*ficient reason)(y) any of the children of the testator.(z) But, if the *503] child had any legacy, though ever so small, it was a proof that the

testator had not lost his memory or his reason, which otherwise the law presumed; but was then supposed to have acted thus for some substantial cause:

(P) Comyns, 452, 453, 454.

(9) L. 2, c. 26.

(") Co. Litt. 1.

() Litt. 168. Perk. 478.
(*) Perk. 479.

(u) 8 Rep. 82.

(w) Elem. c. 19.

(*) Lord Raym. 441. 1 P. Wms. 204.
() See book i. c. 16.
(*) Inst. 2, 18, 1.

10 But this distinction between wills of real and personal estate is now entirely abolished so far as it relates to wills made after the 1st of January, 1838; for by s. 9 of stat. 1 Vict. c. 26 it is enacted that no will shall be valid unless it shall be signed at the foot by the testator, or by some other person in his presence or by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator; but no form of attestation shall be necessary; and, by s. 12, any will executed in this manner shall be valid without any other publication.-STEWART.

11 This, lord Loughborough observed, was the most general maxim he knew, (Matthews vs. Warner, 4 Ves. 210:) it is essential to every testamentary instrument that it may be altered even in articulo mortis, (Balch vs. Symes, 1 Turn. & Russ. 92:) irrevocability would destroy its essence as a last will. Hobson vs. Blackburn, 1 Addams, 278. Reid vs. Shergold, 10 Ves. 379.-CHITTY.

12 Republication of a will makes the will speak as of the time of such republication. Long vs. Aldred, 3 Addams, 51. Goodtitle vs. Meredith, 2 Mau. & Sel. 14. If a man by a second will revokes a former, but keeps the first undestroyed, and afterwards destroys the second, whether the first will is thereby revived has been much questioned. The result seems to be that no general and invariable rule prevails upon the subject, but it must depend upon the intention of the testator as that is to be collected from the circumstances of each particular case.--CHITTY.

13 But by 1 Vict. c. 26, s. 19, no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances: it is, however, expressly provided (s. 18) that a will shall be revoked by marriage, but that no will shall be revoked otherwise, or but by another will or codicil executed in the manner hereinbefore mentioned or by some writing declaring an intention to revoke the same and executed in th manner in which a will is required to be executed; or by burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence, with the intention of revoking the same; and, by s. 21, no alteration in a will shall have any effect unless executed as a will; and, by s. 22, no will revoked shall be revived otherwise than by a re-execution or a codicil to revive it.-STEWART.

and in such case no querela inofficiosi testamenti was allowed. Hence probably has arisen that groundless vulgar error, of the necessity of leaving the heir a shilling, or some other express legacy, in order to disinherit him effectually: whereas the law of England makes no such constrained suppositions of forgetfulness or insanity; and therefore, though the heir or next of kin be totally omitted, it admits no querela inofficiosi to set aside such a testament."

We are next to consider, fourthly, what is an executor, and what an administrator; and how they are both to be appointed.

An executor is he to whom another man commits by will the execution of that his last will and testament. And all persons are capable of being executors, that are capable of making wills, and many others besides; as feme-coverts15 and infants: nay, even infants unborn, or in ventre sa mere, may be made executors.(a) But no infant can act as such till the age of seventeen years; till which time administration must be granted to some other, durante minore ætate.(b) In like manner as it may be granted durante absentia, or pendente lite; when the executor is out of the realm,(c) or when a suit is commenced in the ecclesiastical court touching the validity of the will. (d) This appointment of an executor is essential to the making of a will:(e) and it may be performed either by express words, or such as strongly imply the same. But if the testator makes an incomplete will, without naming any executors, or if he names incapable persons, or if the executors named refuse to act in any of these cases, the ordinary must *grant administration cum testamento [* 504 annexo(f) to some other person; and then the duty of the administrator, as also when he is constituted only durante minore ætate, &c. of another, is very little different from that of an executor. And this was law so early as the reign of Henry II.; when Glanvil(g) informs us, that "testamenti executores esse debent ii, quos testator ad hoc elegerit, et quibus curam ipse commiserit; si vero testator nullos ad hoc nominaverit, possunt propinqui et consanguinei ipsius defuncti ad id faciendum se ingerere."

But if the deceased died wholly intestate, without making either will or executors, then general letters of administration must be granted by the ordinary to such administrator as the statutes of Edward the Third and Henry the Eighth, before mentioned, direct. In consequence of which we may observe, 1. That the ordinary is compellable to grant administration of the goods and chattels of the wife, to the husband or his representatives :(h) and of the hus band's effects, to the widow, or next of kin; but he may grant it to either or both at his discretion. (1) 2. That, among the kindred, those are to be preferred that are the nearest in degree to the intestate; but, of persons in equal degree, the ordinary may take which he pleases.(k) 3. That this nearness or propinquity of degree shall be reckoned according to the computation of the civilians ;()

(a) West. Symb. p. 1, 2 635.

() Went. Off. Ex. c. 18.

(e) 1 Lutw. 342.

(d) 2 P. Wms. 589, 590,

() Went. c. 1. Plowd. 281.

() 1 Roll. Abr. 907. Comb. 20.

(0) L. 7, c. 6.

(4) Cro. Car. 106. Stat. 29 Car. II. c. 3. 1 P. Wms. 381. (Salk. 36. Stra. 532.

(*) See page 496.

(1) Prec. Chanc. 593.

14 Courts of probate, however, look with much greater jealousy at, and require more stringent evidence in support of, an inofficious testament than one which is consonant with the testator's duties and with natural feeling. Brogden vs. Brown, 2 Addams, 449. Dew vs. Clerk, 3 Addams, 207.-CHITTY.

15 But a feme coverte should not be allowed to act as an executrix or administratrix without the assent of her husband; for, as he would be answerable for her acts in either of those capacities, he ought not to be exposed to this responsibility unless by his own concurrence. See 1 Anders. 117, case 164. It might be equally injurious to the legatees, creditors, or next of kin of a testator or intestate, if a married woman were allowed to act as executrix or administratrix when her husband was not amenable to the courts of this country; for, if she should waste the assets, the parties interested would have no remedy, as the husband must be joined in any action brought against her in respect of such transactions. Taylor vs. Allen, 2 Atk. 213.-CHITTY.

16 Swinburne, in pt. 4, sect. 4 of his treatise, supplies many instances in which the intention of a testator to appoint certain persons his executors may be implied, though he has not described them co nomine and see Pickering vs. Towers, Ambl. 364.--CHITTY.

and not of the canonists, which the law of England adopts in the descent of real estates:(m) because in the civil computation the intestate himself is the terminus, a quo the several degrees are numbered, and not the common ancestor, according to the rule of the canonists. And therefore in the first place the children, or (on failure of children) the parents, of the deceased, are entitled to the *505] administration; both which are indeed in the first degree; but *with us(n) the children are allowed the preference.(0) Then follow brothers,(p) grandfathers, (q) uncles or nephews,(r) (and the females of each class respectively,) and lastly cousins. 4. The half-blood is admitted to the administration as well as the whole; for they are of the kindred of the intestate, and only excluded from inheritances of land upon feodal reasons. Therefore the brother of the half-blood shall exclude the uncle of the whole blood;(s) and the ordinary may grant administration to the sister of the half or the brother of the whole blood, at his own discretion.(t) 5. If none of the kindred will take out administration, a creditor may, by custom, do it.(u) 6. If the executor refuses, or dies intestate, the administration may be granted to the residuary legatee, in exclusion of the next of kin.(w) 7. And lastly, the ordinary may, in defect of all these, commit administration (as he might have done(x) before the sta tute of Edward III.) to such discreet person as he approves of: or may grant letters ad colligendum bona defuncti, which neither makes him executor nor administrator; his only business being to keep the goods in his safe custody,(y) and to do other acts for the benefit of such as are entitled to the property of the deceased.(2) If a bastard, who has no kindred, being nullius filius, or any one else that has no kindred, dies intestate and without wife or child, it hath formerly been held(a) that the ordinary might seize his goods and dispose of them in pios usus. But the usual course now is for some one to procure letters*patent, or other authority from the king; and then the ordinary of *506] course grants administration to such appointee of the crown.(b) The interest vested in the executor by the will of the deceased may be continued and kept alive by the will of the same executor: so that the executor of A.'s executor is to all intents and purposes the executor and representative of A. himself; (c) but the executor of A.'s administrator, or the administrator of A.'s executor, is not the representative of A.(d) For the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another in whom he has equal confidence: but the administrator of A. is merely the officer of the ordinary, prescribed to him by act of parliament, in whom the deceased has reposed no trust at all: and therefore, on the death of that officer, it results back to the ordinary to appoint another. And, with regard to the administrator of A.'s executor, he has clearly no privity or relation to A., being only commissioned to administer the effects of the intestate executor, and not of the original testator. Wherefore, in both these cases, and whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary for the ordinary to commit administration afresh of the goods of the deceased not administered by the former executor or administrator. And this administrator de bonis non is the only legal representative of the deceased in matters of personal property.(e) But he may, as well as an original administrator, have only a limited or special administration

See pages 203, 207, 224.

()Godolph. p. 2, c. 34, 21. 2 Vern. 125.

(e) In Germany there was a long dispute whether a man's children should inherit his effects during the life of their grandfather; which depends (as we shall see hereafter) on the same principles as the granting of administrations. At last it was agreed at the diet of Arensberg, about the middle of the tenth century, that the point should be decided by combat. Accordingly, an equal number of champions being chosen on both sides, those of the children obtained the victory, and so the law was established in their favour.that the issue of a person deceased shall be entitled to his goods and chattels in preference to his parents. Mod. Un.

ist. xxix. 28.

P) Harris in Nov. 118, c. 2.

committed to his care, viz., of certain specific effects, such as a term of years, and the like; the rest being committed to others.(ƒ)

*Having thus shown what is and who may be an executor or admi

nistrator, I proceed now, fifthly and lastly, to inquire into some few of [*507 the principal points of their office and duty. These, in general, are very much the same in both executors and administrators; excepting, first, that the exe cutor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor: and secondly, that an executor may do many acts before he proves the will,(g)" but an administrator may do nothing's till letters of administration are issued; for the former derives his power from the will and not from the probate ;(h) the latter owes his entirely to the appointment of the ordinary. If a stranger takes upon him to act as executor, without any just authority, (as by intermeddling with the goods of the deceased,(i) and many other transactions,)(k) he is called in law an executor of his own wrong, (de son tort,)19 and is liable to all the trouble of an executorship without any of the profits or advantages. But merely doing acts of necessity or humanity, as locking up the goods or burying the corpse of the deceased, will not amount to such an intermeddling as will charge a man as executor of his own wrong.(1) Such a one cannot bring an action himself in right of the deceased, (m) but actions may be brought against him. And, in all actions by creditors against such an officious intruder, he shall be named an executor, generally;(n) for the most obvious conclusion which strangers can form from his conduct is, that he hath a will of the deceased wherein he is named executor, but hath not yet taken probate thereof.(0) He is chargeable with the debts of the deceased so far as assets come to his hands,(p) and, as against creditors in general, shall be allowed all payments made to any other creditor in the same or a superior degree,(q) *himself [*508 only excepted.(r) And though, as against the rightful executor and administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages;(s) unless perhaps upon a deficiency of assets, whereby

"Before he proves the will, he may lawfully perform most acts incident to the office. Wankford vs. Wankford, 1 Salk. 301. He does not derive his title under the probate, but under the will: the probate is only evidence of his right. Smith vs. Milles, 1 T. R. 480. It is true that in order to assert completely his claims in a court of justice he must produce the copy of the will, certified under the seal of the ordinary; but it is not necessary he should be in possession of this evidence of his right at the time he commences an action at law as executor; it will be in due time if he obtain it before he declares in such action, so, if he file a bill in equity, in the same character, a probate obtained at any time before the hearing of the cause will sustain the suit. Humphreys vs. Humphreys, 3 P. Wms. 351.-CHITTY.

18 A person who takes upon himself to interfere with the effects of a party deceased, or, at all events, to dispose thereof or apply them to his own use, will by such interference constitute himself an executor de son tort, as stated in the text, (and see Edwards vs. Harben, 2 T. R. 597;) but lord Hardwicke held that, although a person entitled to administration could not, before administration actually granted to him, commence an action at law, (see the last note as to an executor who has not obtained probate,) he might be allowed to file a bill in equity as administrator, and that such bill would be sustained by an administration subsequently taken out. Fell vs. Lutwidge, Barnard, Ch. Rep. 320. S. C. 2 Atk. 120.—CHITTY.

19 Whether a man has or has not rendered himself liable to be treated as an executor de son tort is not a question to be left to a jury, but is a conclusion of law, to be drawn by the court before which that question is raised. Padget vs. Priest, 2 T. R. 99.-CHITTY. 20 But if a person entitled to letters of administration is opposed in the ecclesiastical court, and does any acts pendente lite to make himself executor de son tort, those acts will be purged by his afterwards obtaining letters of administration. Curtis vs. Vernon, 3 T. R. 590.-CHTY.

the rightful executor may be prevented from satisfying his own debt.(t)" But let us now see what are the power and duty of a rightful executor or administrator.

1. He must bury the deceased in a manner suitable to the estate which ho leaves behind him. Necessary funeral expenses are allowed previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of devastation or waste of the substance of the deceased, and shall only be prejudicial to himself,(u) and not to the creditors or legatees of the deceased. 2. The executor, or the administrator durante minore ætate, or durante absentia, or cum testamento annexo, must prove the will of the deceased: which is done either in common form, which is only upon his own oath before the ordinary or his surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed.(w) When the will is so proved, the original must be deposited in the registry of the ordinary; and a copy thereof in parchment is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him : all which together is usually styled the probate. In defect of any will, the person entitled to be administrator must also, at this period, take out letters of administration under the seal of the ordinary, whereby an executorial power to collect and administer, that is, dispose of the goods of the deceased, is vested in him: and he must, by statute 22 & 23 Car. II. c. 10, enter into a bond with sureties faithfully to execute his trust.. If all the goods of the deceased lie *509] within the same jurisdiction, a probate before the ordinary, or an administration granted by him, are the only proper ones: but if the deceased had bona notabilia, or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the will must be proved or administration taken out before the metropolitan of the province, by way of special prerogative; (x) whence the courts where the validity of such wills is tried, and the offices where they are registered, are called the prerogative courts and the prerogative offices of the provinces of Canterbury and York. Lyndewode, who flourished in the beginning of the fifteenth century, and was official to archbishop Chichele, interprets these hundred shillings to signify solidos legales; of which he tells us seventy-two amounted to a pound of gold, which in his time was valued at fifty nobles, or 16l. 13s. 4d. He therefore computes(y) that the hundred shillings, which constituted bona notabilia, were then equal in current money to 231. 3s. 04d. This will account for what is said in our antient books, that bona notabilia in the diocese of London,(z) and indeed everywhere else,(a) were of the value of ten pounds by composition: for if we pursue the calculations of Lyndewode to their full extent, and consider that a pound of gold is now almost equal in value to a hundred and fifty nobles, we shall extend the present amount of bona notabilia to nearly 701. But the makers of the canons of 1603 understood this antient rule to be meant of the shillings current in the reign of James I., and have therefore directed(b) that five pounds shall, for the future, be the standard of bona notabilia, so as to make the probate fall within the archiepiscopal prerogative. Which prerogative (properly understood) is grounded upon this reasonable foundation: that, as the bishops were themselves originally the administrators to all intestates in their own diocese, and as the present administrators are, in effect, no other than their officers or substitutes, it was impossible for the bishops, or those who acted under them, to col

(t) Wentw, ch. 14.

(*) Salk. 198. Godolph. p. 2, c. 26, § 2.

(w) Godolph. p. 1, c. 20, 4.

(*) 4 inst. 335.

(v) Provinc. 1. 3, t. 13, c. item. v. centum. &c. statutum v. laicis.

(#) 4 Inst. 335. Godolph. p. 2, c. 22.

(a) Plowd. 281.

(b) Can. 92.

21 It is held that the least intermeddling with the effects of the intestate-even milking cows, or taking a dog-will constitute an executor de son tort. Dy. 166. An executor of his own wrong will be liable to an action unless he has delivered over the goods of the intestate to the rightful administrator before the action is brought against him; and he cannot retain the intestate's property in discharge of his own debt, although it is a debt of a superior degree 3 T. R. 590. 2 T. R. 100.--CHRISTIAN.