THE fees and expences alluded to may be perceived by the following table: Where the Value of the In Common Form. By Commiffion *. Goods, Chattels, and Credits, of a common Seaman, or Soldier, flain or dead in the King's Service, is Probates. Adminiftra- Probates. Adminiftrations. HAVING finished our laft propofitions, we come now to confider in what cafes administration must be granted with the will annexed; or, as it is commonly termed, admini» stration cum teftamento annexo, and the manner of thus granting it. THIS adminiftration is granted in divers cafes where there is a will, as it may be durante minore ætate; durante abfentia; or pendente lite, and on other occafions which we fhall mention. Adminiftration durante minore ætate, is that which is to be granted during the minority of an infant, who, although he may be appointed executor, cannot ad * The method of obtaining admini- explanation preceding the contents of fration, or proving a will by commif- this work. fon, is defcribed towards the end of the minifter minifter until he arrives at the age of feventeen, till which time the ordinary may grant adminiftration with the will annexed, and as it is held to whom he thinks fit; in like manner as where there is no teftament, he may grant it till the infant attains his full aged: yet if administration is granted during the minority of divers executors, he that comes first of age fhall prove the will, and the adminiftration ceases; likewife if there be two executors, one of the age of feventeen, and the other under, adminiftration during the minority of him that is under age is void; because he that is of the age of feventeen may execute the will. ADMINISTRATION durante abfentia, or during abfence, as when the executor may be beyond fea; this adminiftration seems to stand upon much the fame reafon as the administration durante minore ætate; it being neceffary in both cafes that there fhould be fome perfon to manage the estate of the deceased; and therefore it has been held to be grantable by law; and the ordinary may grant it, as he may letters of adminiftration, where there is no will, and the next of kin be beyond fea. LIKEWISE the ordinary may grant adminiftration pendente lite, that is, pending a fuit: fo, where there is no controversy, he may grant adminiftration until the executor comes in, which, as well as the administration durante absentia just mentioned, do fall of courfe as foon as the confideration ceases upon which they were firft granted ". IF the teftator makes his will, without naming any executor, or if he names incapable perfons, or if the executors named refuse to act; in either of these cases the ordinary muft grant administration with the teftament annexed, to some other perfoni: and when the administration is thus granted, the duty of the adminiftrator is very little different from that of an executor, he being to adhere to the teftament as heretofore mentioned .-For obtaining adminiftration with the will annexed, the will of the deceafed must be proved either in common form or form of law', in like manner as was lately fhewn with respect to the executor's proving it; and when the will is fo proved, 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 adminiftrator, together with a certificate of its having been proved before him"; in like manner as when the will is proved by the executor, notwithstanding it is called administration cum teftamento an◄ nexo, or adminiftration with the will annexed. 1 THUS having proceeded, we come now to treat on the method of proving a will in chancery; and from thence we fhall proceed with registering a will. WHEN real eftate is devifed by will from the heir at law, and there is no occafion or opportunity to prove or eftablifh the fame at law, it is often neceffary to prove fuch will in chancery, to perpetuate the teftimony thereof: the way to do which, is to exhibit a bill againft the heir at law, and to fet forth the will verbatim therein, fuggefting that the heir is inclined to dispute its validity; and then the defendant having anfwered, they proceed to iffue as in other cafes, and examine the witneffes to the will, or prove their hands if they are dead. The will (if the witneffes are examined in town) muft alfo be left to be examined in the examiner's office; which done, and publication paffed, the çaufe is at an end, an order or rules being firft obtained for publication and the defendant, who is the heir at law, and examines no witneffes touching the validity of the will, may give notice of motion for the plaintiff to pay him his k Page 1, 2. 1 Black. Com, 2 V. 508. m. Ibid. cofts ⚫ costs to be taxed by a mafter, which the court ufually orders". This is what is ufually meant by proving a will in chancery, which might be advisable to do while the witneffes to the will are living; for in this, as well as in other cafes where a bill may be filed for perpetuating the testimony of witneffes, it may be that a man's antagonist only waits till the death of fome of them to begin his fuit, when he may have a more favourable opportunity. As to registering wills; by feveral ftatutes, deeds and wills that affect real eftates, and certain chattels real, in the counties of York and Middlefex, are required to be registered; which regiftering hath no allufion to that in the ecclefiaftical courts, but is quite a distinct thing; and it being a matter with which many may be unacquainted, I fhall here mention the several statutes by which the fame is ordained, and make fome obfervations with refpect to effectuating a complete registry. By the ftatute 2 & 3 Ann. c. 4. it is enacted, That a memorial of all wills and devifes in writing, whereby any honours, manors, lands, tenements, and hereditaments, within the Weft-Riding of the county of York, may be any way affected in law or equity, may, at the election of the party or parties concerned, be registered in fuch manner as by the said act is directed: and every devife by will of the manors, lands, tenements, or hereditaments, or any part thereof, contained in any memorial fo registered as aforesaid, that shall be made and published after the registering of fuch memorial, shall be adjudged fraudulent and void against any fubfequent purchaser or mortgagee for valuable confideration; unless a memorial of such will be registered as aforefaid. That every fuch will, or probate of the fame, of which fuch memorial is to be registered, fhall be produced to the register at the time of entering fuch memorial, and oath made that the momorial was duly figned and sealed; and the register shall indorfe a certificate on fuch will or probate thereof, and mention the day, hour, and time on which such memorial is entered, expreffing alfo in what book, page, and number the fame is entered; and the register shall fign the certificate fo indorfed; which fhall be allowed as evidence of fuch registries in all courts of record. And a memorial of fuch wills as fhall be made or published in London, or in any other place, not within forty miles of the Weft-Riding, which may affect lands in the Weft-Riding, fhall be registered, in cafe an affidavit (wherein one of the witnesses to the memorial of fuch will fhall fwear, that he faw the memorial figned and fealed, before any one of the judges at Westminster, or a master in chancery) be brought with the memorial to the register; which affidavit shall be a fufficient authority to the register to give a certificate of the registering fuch memorial; and the certificate figned by the register fhall be evidence of the registry. That memorials of wills registered within fix months after the death of the devifor dying within England, Wales, and Berwick, or within three years after the death of every devifor dying upon or beyond the feas, fhall be effectual. And in cafe the persons interested in the lands devifed by reason of the contesting such will, or other inevitable difficulty, without their wilful neglect, fhall be difabled to exhibit a memorial within the times limited; in such case the registry of the memorial within fix months after their attainment of fuch will, or a probate thereof, or removal of the impediment, shall be sufficient. By statute 6 Ann. c. 25. it is enacted, That a memorial and registry shall be made of all wills which affect any lands or tenements in the Eaft- Riding of the county of York. And by statute 7 Ann. c. 20. a memorial and registry is to be made of all wills whereby lands are affected in the county of Middlesex, in like manner as in the Weft and East Ridings of Yorkshire. But neither of those three ftatutes extends to copyhold estates, or to any leases at a rack rent, or to any leafes not exceeding twenty-one years, where the a&ual |