actual poffeffion goeth along with the leafe; and in the statute of 7 Ann. there is a reservation as to the chambers in Serjeant's-inn, the inns of court, and the inns of chancery, to which this act does not extend. By ftatute 8 Geo. II. c. 6. a registry is to be of all wills affecting lands in the North-Riding of the county of York. But this ftatute does not extend to copyhold eftates, or to fuch leafes as juft before mentioned.

To effectuate a complete registry, it is neceffary that the memorial be on vellum or parchment, which need not be ftamped, as neither of the acts require it. The memorial is to contain, I. The name of the teftator and his addition, viz. the place of his abode and occupation. 2. The date of the will. 3. The premises, or what is mentioned in the will relative to the real estate or chattels real devised thereby, which are to be described verbatim as in the will. 4. The names and additions of the witneffes, viz. their feveral occupations and places of abode.The memorial must be figned and fealed by one of the devifees, his guardians, or trustees; and then attested by two witneffes who faw the fame figned and sealed: afterwards one of the two witneffes goes with the memorial and the will, or the probate, or an office-copy thereof (either of which is fufficient), to the register-office (which for the Weft-Riding of the county of York, is at Wakefield; for the Eaft-Riding, at Beverley; for the county of Middlefex, in Bell-yard, Carey-ftreet, London; and for the North-Riding, at York); and at the office where the fame is to be registered makes an oath (unless an affidavit hath been made before a judge or master in chancery, as before mentioned) that he faw the memorial figned and fealed; and, the oath being fo made, he leaves the memorial, together with the will, probate, or officecopy, on which the certificate of the registry is indorsed, as directed by the ftatute, and that frequently within four or five days after; when the will, probate, or office-copy, is

fetched, and the register paid his fee for regiftering. The form of the memorial is as follows:

A MEMORIAL to be registered pursuant to an act of parliament made for registering deeds, &c. within the [Weft, Eaft, or North Riding of the county of York, or the county of Middlesex, as may be the case]. THE probate of the laft will and teftament of Ą. B. of bearing date the day of and concerning -All [here pursue the words of the will] which faid will is witneffed by C. D. of

of

; E. F. of

; and G. H. And this memorial is required to be registered pursuant to the above mentioned act, by me J. K. one of the devifees in the faid will mentioned: As wITNESS My

hand and feal this

day of

Lord 17

SIGNED and fealed

JOHN KEMP.

in the presence of

CHARLES DUN.

LUKE MITFORD.

FOR regiftering deeds the form of a memorial varies very little from that used for a will; but I fhall omit mentioning any more here with respect to deeds, as being foreign to this fubject, and shall now proceed with what was proposed in respect to proctors fees, and taxing their bills, and therewith conclude this chapter.

In divers cafes it hath been held, that proctors fees are not fuable for in the ecclefiaftical court, but may be sued for in the temporal courts; from whence a prohibition may be had to ftop proceeding in the ecclefiaftical court, if suit fhould be there commenced ".-Upon proper application, as by petition from any fuitor, or person that fues, in the ecclefiaftical court, the judge thereof has an undoubted right to tax the proctor's bill. The method of doing it, as ufually practifed, is, for the judge to refer it to the register, directing the respective parties to attend him if they think fit, one to make his n See prohibition described, page 18,

exceptions,

exceptions, and the other to justify the feveral articles or items of his bill; and the register to make his report to the judge, who thereupon proceeds to tax the bill. If the regifter has any doubt, the affiftance of the other proctors may be required. The fees alledged to be given to counsel, if denied by the client, as alfo his demand for any unusual or extraordinary articles which do not appear from the proceedings in the cause, must be cleared up to the fatisfaction of the judge, either by the proctor's oath (if he voluntarily offers it, and there be no affidavit to the contrary), or by receipts and vouchers from thofe to whom the money is alledged to be paid, or by producing letters and orders from his client'.

CHA P. V.

Of Executors, and fuch Adminiftrators who have the Adminiftration granted with the Will annexed.

THE

HE office and duty of thofe adminiftrators who have the administration granted with the will annexed, being, as we have feen in feveral parts of this work, very little different from that of executors, we shall now take a view of both, as with respect to their power and what they are interested in; their getting in the deceased's effects; and what fhall be affets in their hands to make them chargeable; their office and duty in paying debts and legacies. And as to debts, we shall here take notice of such as are barred by the ftatute of limitations, and of fome that are to be paid with intereft; and then of legacies; and when the fame are to be paid; and what interest shall be allowed thereon. Likewife what executors and administrators are to observe before they pay legacies; and with respect to paying infants and

• 2 Burn's Ecclef. Law, 233.

O 4

married.

married women. In what courts legacies are to be fued for s and cafes in which fecurity may be required for paying the fame; of legacies and bequests to charitable uses. But as fome of those particulars have been difcuffed in the former part of this work, we shall now have occafion only to take a curfory view thereof, and make a little addition to what has heretofore been mentioned; but with respect to legacies, which we have hitherto scarce touched upon, those will here require a difcuffion, as they fhall have, after some notice has been taken of the other particulars.

WITH respect to the power an adminiftrator hath by virtue of administration obtained from the ordinary; this being very nearly allied to that of an executor, except in a few particular instances wherein the executor differs from an administrator, we need here only refer the reader to the firft section of the second chapter of the Law's Difpofal; and to what has been mentioned under the head of proving the will, for a discovery both of the executor's and administrator's power. And as what the adminiftrator is interested in hath been treated on, and being the fame with what an executor, as fuch, has intereft in, we may refer to the fecond fection of the last mentioned chapter, and to what has heretofore been mentioned, for a discovery both of what an executor and adminiftrator is interested in. And as to getting in the deceafed's effects, and what shall be affets in the adminiftrator's hands to make him chargeable; this likewise having been treated on, as well as his office and duty in paying debts; and being like applicable to an executor, we fhall now make fome addition to what has been mentioned with refpect to affets, as where any real estate is devised for paying debts, and where the fame is mortgaged, or charged with the payment of a fum of money at the time, or before it was devised; that thereby may be seen what an executor or administrator may have for paying the teftator's debts and legacies with, befides what has been

a Page 20. b Page 173.

Page 28.

d

Page 155, 156. 165. 173. e Page 43.

f Page 51.

mentioned,

mentioned. So likewife, we fhall make fome addition to what was mentioned with respect to debts, as concerning those that may be barred by the ftatute of limitations, and debts to be paid with intereft.

WHERE any real estate is devised for paying debts, we may obferve the general rule is, that the perfonal estate fhall be first charged with the payment of debts and legacies; and the teftator cannot exempt it from being liable to his debts, as against creditors; but as between heir and executor, he may charge them upon his real eftate, which is not primarily liable, and difcharge the perfonal estate : but, although there are feveral ways by which a man may give his real estate for payment of his debts, yet if there be not in the will, either exprefs words, or a manifeft intent of the teftator to discharge the perfonal eftate, it fhall be firft liable. And in all cases it fhall be applied in discharge of the testator's perfonal debt, or general legacy, unless he by express words or manifeft intention exempt it 1.

If a man devife real estate to be fold by one for payment of his debts and legacies, and make the fame perfon his executor, and die; the money made by fuch perfon upon the fale of the eftate, fhall be affets in his hands, and confequently liable to the payment of the teftator's debts and legacies.-Where real estate is devised to one for life, with remainder to another in fee, and the eftate is charged with the payment of a fum of money, either by a former devife, rent-charge, or mortgage, the tenant for life fhall contribute and pay a proportionable part of fuch fum; as where the real estate was devised in the manner juft mentioned, and being mortgaged for a certain fum, it was decreed that the tenant for life fhould contribute one-third, and he in remainder two thirds, to redeem m; notwithstanding in this case it was obferved, that the teftator had left affets fufficient to pay the debts; which the remainder-man prayed might go to the payment of the mortgage, as it would, in cafe the eftate had not been devised, but had defcended to the heir at law, as