UNDER this head of revoking the will, it may be perceived that a man, after having made his will, may die either wholly inteftate, or part teftate and part inteftate; as where he revokes his will; which revocation may arife from a variety of causes, and be either expreffed or implied; as if the teftator cancels his will by tearing, obliterating, or burning it, which is an exprefs revocation; fo where, after having made his will, he marries and has a child; this is held a prefumptive revocation; and hereby, as well as by tearing, oblite rating, or burning his will, he may die wholly inteftate, both as to his real and perfonal eftate. Likewife implied revocations are, where the eftate devifed is altered after making the will; as in case the teftator afterwards conveys the fame to another, even though it may be re-conveyed to him, yet the conveying it, is an implied revocation of his will, as to the eftate conveyed by him. So if a man poffeffed of a leafehold eftate, and after having devised it furrenders his leafe, and takes a new leafe of the eftate, this is an implied revocation of his will as to this particular, and if he dies before republishing it, he may die both testate and inteflate; teftate as to that part of his will which is unrevoked, and inteftate as to the part revoked; fo that one part of his eftate may be difpofed of by himfelf, and the other left to the dif pofition of the law. So it may be in refpect to other cafes that amount to implied revocations. THERE is another kind of inteftacy, which may be where a man may have made his will in writing purfuant to what is required by the ftatute of 29 Car. II. and thereby devised his real and perfonal eftate, but hath not appointed any exeautor either exprefly, or by words whereby the making of an executor may be implied; and in this cafe a man may alfo be faid to die both teftate and inteftate; teftate as to his real eftate, and inteftate as to his perfonal: yet here the law has no concern with the difpofal of either, adminiftration being to be granted with the will annexed, which is to be the adminiftrator's guide in difpofing of the perfonal estate, in like manner as heretofore mentioned"; and as to the real eitate, an executor, as fuch, if appointed, has no concern therewith; neither is the appointment of an executor requi fite where the will concerns only real estate, and has no concern with goods or chattels, nor ought it in fuch cafe to be proved in the fpiritual court '. Page 2. i Cro. Car. 396. CHAP CHA P. IV. Of proving the Will. NDER this head we fhall confider what an executor UND may do before the will is proved, and the reafon why it thould be proved. Whether it is prudent for the executor to take upon him the executorship, or to refuse it; the advantage that may accrue by taking upon him the executor fhip; his right to the furplus. The detriment or lofs he may fuftain by taking upon him the executorship; the effect of his joining with a co-executor in acquittance for money; in what cafes executors fhall pay interest for money. Then just take notice of the will, which concerns both real and perfonal estate, or perfonal estate only; and 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 purpose of proving it either way. For proving it in common form, the power an executor has 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.Cafes wherein adminiftration must be granted with the will annexed, and the manner of thus granting it.The method of proving a will in chancery.That a will is to be regiftered if it concern real estate, or certain chattels real in the counties of York and Midd'efex; and the manner and form of doing it.In what courts fuits must be brought for proctors fees, and the manner of taxing their bills. BEFORE letters of adminiftration are issued, an administrator can do nothing, yet an exectuor may do many acts before he prove the will, as heretofore mentioned: and the reafon of this is, that an executor derives his power from the will and not from the probate; but the administrator owes his entirely to the appointment of the ordinary. An * Pag. 2. executor, executor, before the will be proved, may feize and take into his hands any of the goods of the teftator. He may pay debts, receive debts, make acquittances and releases of debts due to the teftator, and take releases and acquittances of debts owing by the teftator; and if before the will be proved, the day occur for payment upon bond made by or to the teftator, payment must be made to or by the executor though no will be proved, upon the like pain of forfeiture as if the will were proved. Alfo, an executor may, before probate, fell or give away any of the goods or chattels of the teftator. And the executor, for goods of the teftator taken from him, or a trespass done upon the lease land, or a distraining or impounding of goods or cattle, may maintain, before the will be proved, actions of diftrefs, or replevin, or detinue; for these actions arife upon the executor's own poffeffion. But before the proving of a will, an executor cannot maintain a fuit or action of debt, or the like; and the reafon is, for that therein he must fhew forth the will, proved under the feal of the ordinary. And fo it feems it must be, if he bring any action for trefpafs done, or goods taken in the teftator's lifetime, fo as the teftator himself was entitled to the action, and it grows not upon the executor's poffeffion, but upon the executor's own contract for the teftator's goods; and if the executor fell cattle or other goods of the teftator's before the will be proved, he may for the money payable maintain an action for debt before he hath proved any will; and in this, and the action of trefpafs, there is no neceffity of naming him executor. In general, an executor is a complete executor before probate to all purposes but bringing of actions; fo that he may release an action, affent to a legacy, may be fued, may aliene, or otherwife intermeddle with the goods of the teftator. For by adminiftering (that is, if one do either pay debts of the teftator, or receive debts, or make acquittances for them, or demands the testator's debts as executor, which are acts of adminiftering, as will be more fully fhewn hereafter), the executor hath ac Went. Off. Exec. 34, 35 s Ibid. 36. • Salk. 30t, e Went. 41. cepted cepted and taken upon him the whole administration before the probate; and is thereby entitled to receive the debts due to the teftator; and all payments made to him are good, and shall not be defeated, although he fhould die and never prove the will 8. THE executor may, in convenient time after the teftator's death, enter into the houfe defcended to the heir, for the removing and taking away the goods, fo as the door be open, or at least the key be in the door; and this feems to be underftood of the door of each room. For, although the door of entrance into the hall and parlour be open, the executor cannot by that juftify the breaking open the door of any chamber to take goods there; but only may take those in the rooms which be open. And this feems to be proved by the cafe of a cheft with evidences; which it is faid the executor may take, and put out the deeds, delivering them to the heir, that is to say, the cheft being unlocked; though a chamber or other room within the house locked, is an inclofure of better refpect than a cheft.If the goods be not removed within a convenient time, the heir may distrain them as damage feafant", that is, doing damage, or trefpaffing upon his land. In a cafe of trefpafs upon demurrer, which was, leffee for life of a house and pafture land dies, his executors fuffer his cattle to go there for fix days after his death, and then removed them; and in trespass justify for that time, averring, that in the time of fix days they could not procure any other land or place to put in the cattle; whereupon it was demurred. And whether that were a convenient time to remove them, was the question. And the court feemed to incline, that fix days is but a Convenient time for the removing of their cattle; and the law allows a convenient time for their removing; especially it being averred they had not any other place to remove them unto. But for a fault in the plea wherein the defendant pleaded a leafe of the houfe, but not of the land, as was mentioned in the declaration, it was adjudged for the plaintiff *. 81 Salk. 306, 307. Went. Off. Exec. 92. i Black. Com. 3 V. 6. * Cro. Jac. 204• As As the executor may receive debts, release debts, and do other acts before the will be proved; fo on the other hand an executor may be fued for debts of the teftator before the will be proved; unless he refuses the executorship in due manner, fo as adminiftration may be granted, and there may be fomebody fuable for the teftator's debts1. By the ftatute 21 Hen. VIII. c. 5. the ordinary or other perfon having authority for probate of teftaments, may convent before them perfons named executors of any teftament, to the intent to prove or refufe the fame. And if the executors do not appear upon the process, the ordinary may excommunicate them: but they may pray time to advise, and the ordinary may grant in the mean time letters ad colligendum bona defuncti, that is, to gather up the goods of the deceased.--Where a will is made and executors named, the ordinary, if he knows thereof, before he commits administration, muft fend out procefs against the executors to come in and prove it; and if they do not come, they are to be excommunicate; but if they do come, and if they, nor any of them, will prove, then by reafon of fuch refufal, the ordinary may commit adminiftration with the will annexed". Refufal must be by fome act entered or recorded in the fpiritual court, and not verbally or by word, and therefore must be done before fome judge fpiritual, and not before neighbours in the country; for that is not effectual.-After refufal, and adminiftration committed, the executor cannot go back to prove the will and affume the executorship; but if only upon the executor's making default to come in upon the procefs to prove the will, the adminiftration be committed, here the executor may at any time after come and prove the will, and fo undo the adminiftration P.-If a man make an executor, but this is not known, or is concealed, the ordinary may grant administration until the will be proved. And if the 1 Went. Off. Exec. 36. Treatife of Eq. 109. n How this adminiftration is committed, and the effect thereof, fee page 218. Q • Went. Off. Exec. 37. Swinb. 443, perfon |