per goods: fo that any creditor may charge him for the debt due to him from the teftator, as for his own proper debt, and for fo much the execution fhall be made against him upon his own body, lands, and goods and yet fo as one executor or administrator shall not be charged for the waste of another; for if there be many executors, and one of them only doth commit the waste, he only fhall be punished for the wafte. But where two executors join in an acquittance, but only one receives the money, both are chargeable for it as to creditors, who are to have the utmost benefit of the law; but the actual receiver, it is faid, is only chargeable as to legatees or perfons claiming under diftribution. THIS being premifed, the executor may confider the testator's circumftances, and whether it is prudent to take upon him the executorship, or to refufe: and now we may just take notice of the will which concerns both real and perfonal eftate, or perfonal eftate only, and of where, and by whom, the probate thereof is to be granted; and proceed to fhew how the will may be proved in common form, or form of law; and the end and purpofe of proving it either way. For proving in common form, the power an executor hath for compelling the ordinary to grant the probate, and what may obftruct his obtaining the fame; the form of the executor's oath previous to obtaining it; and the expence thereof. THE will which concerns both real and personal estate ought to be proved in the spiritual court, as in case it concerned perfonal eftate alone; but when it concerns a Shep Touch. 4 edit. 463, 464. b 1 Salk. 318. In the cafe of Sadler and Hobbs, July 1786, the question being, whether an executor having joined in drawing two bills of exchange for 70col. became thereby answerable to a legatee in respect of that money; although he had never received any part thereof; Lord chancellor Thurlow faid, that a creditor fhall have a right to charge an executor, and a legatee not, feemed to him an odd distinction; and his lordship held it to be clear, that where by any act or any agreement of 18 one executor, money gets into the hands of his companion, they shall both be anfwerable; and from the circumstances of this cafe, as that the party suffered the money to be out for a very long time (viz. 7 years) in the hands of a tradefman, and neglected to call it in, notwithstanding the party interested in the fund was an infant: in fuch a cafe as this he is clearly chargeable, wiz. with a moiety of the 7000l. 2 Bro, Cha. Rep. 114. Cro. Car. 396. only only real estate, it ought not to be proved in the spiritual court, as before mentioned a. Where and before whom the probate of the will is to be granted, having been fhewn, we need fay no more here concerning it. THE manner and form of proving teftaments is of two forts; the one is called the vulgar or common form; the other is termed the folemn form, or form of law f. If letters teftamentary are granted to the party who exhibits the will merely on his oath, by fwearing that he believeth it to be the laft will of the deceafed; this is called proving it in common form and where there is no controverfy or dispute touching the will, there the fingle oath of the executor alone is fufficient for this purpofe. Where the teftament is to be proved in form of law, it is requifite that fuch perfons as have intereft, as the widow and next of kin to the deceased, to whom the adminiftration of his goods ought to be committed if he had died inteftate, be cited, to be prefent at the probation and approbation of the testament; in whose presence it is to be exhibited to the judge, and petition to be made by the party who prefers the will, and enacted for the receiving, fwearing, and examining the witnefles upon the fame, and for the publishing or confirming thereof; whereupon witneffes are received and fworn accordingly, and are examined every one of them fecretly and feverally, not only upon the allegation or articles made by the party producing them, but also upon interrogations ministered by the adverse party, and their depofitions committed to writing afterwards the fame are published; and in cafe the proof be fufficient, the judge, by his fentence or decree, pronounces for the validity of the teftament. THE difference of form in proving the will, works this diverfity of effect, viz. that the executor of the will proved in the abfence of them who have intereft, may be compelled to prove the fame again in due form of law; and if the witnefles be dead in the mean time, it may endanger the whole teftament; efpecially if 10 years be not passed d Page 172. e Page 6-13. f Swinb 448. 2 Nelf, Abr. 1301. h Godolph. 65. If the will is not duly executed, other proof is requifite, as fee in the latter part of our explanation. i Swinb. 448, 449. fince fince the probation, whereby neceffary folemnities are prefumed to have been obferved: whereas the teftament being proved in form of law, the executor is not to be compelled to prove the fame any more; and although all the witneffes afterwards be dead, the teftament doth ftill retain its full force; but it is probable that this word ten in figures may have been mistaken for thirty; for Dr. Godolphin fays, the will being proved only in common form, it may be queftioned at any time within thirty years next after, by common opinion, before it work prefcription'. THIS proving of the will in folemn form, is commonly at the inftance of fome perfon who defireth to invalidate the fame; in which case, his proctor, at the time of exhibiting the will, ought to accept the contents thereof fo far forth as it maketh for the benefit of his client; otherwise, if any legacy is given to him in the will, he fhall lofe it for his general impugning the will". If the parties interested do not call the executor to prove the will in folemn form, the executor himself may cause it to be thus proved; and where an executor hath the greatest part of the goods of the deceased bequeathed unto himself, and is in doubt whether, after the witneffes be dead, that the wife or children, or other kindred of the deceased, will conteft the validity of the will, he may cite them in fpecial, and all others pretending intereft in general (as is the ufual practice), to fee the will proved by the witneffes; which being done, the will shall not be set aside afterwards (provided there hath been no irregularity in the procefs), when the witneffes are dead ". WHEN the will is proved either in common form, or in form of law, the original must be depofited in the registry of the ordinary, and a copy thereof in parchment is made out under the feal of the ordinary, and delivered to the executor, together with a certificate of its having been proved before him; all which together is ftyled the probate°. FOR proving the will in common form, it has just been mentioned, that the fingle oath of the executor alone is fufficient for this purpofe; and if no fuit is depending in the k Swinb. 449. n I Ought. 21. temporal temporal courts concerning the will, an executor, in cafe of being refused, may have a writ of mandamus to compel the ordinary to grant probate thereof: but if the validity of the will is contefted in the ecclefiaftical court, it is a fufficient anfwer by the ordinary to a writ of mandamus, to return, that a fuit is depending before him, and not yet determined. A teftator having thought the executor appointed a proper perfon to be entrusted with his affairs, the ordinary cannot adjudge him difabled or incapable, neither can he infift upon fecurity from the executor, as the teftator hath thought him able and qualified: yet if an executor becomes non compos, or as it is ufually termed, non compos mentis, which is, where a perfon is not of found mind, memory, and understanding; then the fpiritual court may commit administration. If the executor becomes bankrupt, it is faid the ordinary cannot grant administration to another: yet the court of chancery, where an executor is confidered as a truftee, if he becomes infolvent, will oblige him to give fecurity before he enters upon the truft": fo in fome cafes, after he has taken upon him the executorship, he may be compelled to give fecurity for paying a legacy, as we shall fee under a fubfequent head ". cr THE executor's oath, previous to obtaining the probate, is ufually in this form: "You fhall fwear, that you believe "this to be the true laft will and teftament of A B deceased: "that you will pay all the debts and legacies of the deceased, "as far as the goods fhall extend, and the law fhall bind you; "and that you will exhibit a true, full, and perfect inventory "of all and every the goods, rights, and credits of the de"ceafed, together with a juft and true account, into the re"gistry of the when you shall be law"fully called thereunto ." You also fwear, that you believe the whole of the goods, chattels, and credits, of or belonging to the faid A B, at the time of his death, did not in value exceed the sum of 4 Burr. Mansf. 2295 1 Salk. 299. $2 New Abr. 376. 1 Salk, 299. court of 1. "So help you God.” BEFORE an executor applies for proving the will, it is advisable for him to make an inventory, and that whether the fame is required to be turned in to the ordinary or not; for unless an inventory or a calculation of the value of the deceased's goods, chattels, and credits, be made, the executor cannot be prepared to take the oath required, which has been mentioned with refpect to an administrator's oath; and likewife fome other reasons why the inventory should be made, and the manner and form of making it fhewn . And what was paid as for the fees and expence of proving the will, has been treated on: but in these fees an increase has appeared fince the ftatute 23 Geo. III. yet how far it will be allowed in an executor's or adminiftrator's account, by the temporal courts, cannot be determined, no cafe having come before either of the courts relative thereto fince the ftatute took effect, as I conceive; wherefore fhall omit faying any more concerning it, otherwise than by obferving it to be a matter of much lefs moment than the expence of a fuit or conteft in the ecclefiaftical court; the coft whereof being fometimes very confiderable, I fhall hereafter, as was propofed, fhew in what court suits must be brought for proctor's fees, and the manner of taxing their bills; and at prefent proceed briefly to point out what the fees and expence of proving wills and taking of adminiftrations now amount to, pursuant to what I have lately learned by a minute enquiry from fome of the most eminent practitioners in Doctors Commons; and thereby the reader may perceive what he is to pay for proving the will in common form, and for letters of adminiftration, provided there is no oppofition, as heretofore mentioned; and that the will have the names of two witnesses subscribed thereto, and it be very fhort, as not exceeding three or four sheets, each whereof containing juft ninety words. If the will contain more than three or four of thofe fheets, the expence will be increased about two shillings for every fuch fheet. y Pag. 37-42. See more concernjag making an inventory, page 210, Page 16, 17. a Page 17. b See the reafon of two witneffes, page 154. THE |