eftablish 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 against the heir at law, and to fet forth the will verbatim therein, fuggesting that the heir is inclined to dispute its validity; and then the defendant having answered, 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 witnesses are examined in town) must also be left to be examined in the examiner's office; which done, and publication paffed, the cause 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 cofts to be taxed by a master, which the court ufually orders". This is what is ufually meant by proving a will in chancery, which might be advifable 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 teftimony 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 regiftering 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 registering hath no allufion to that in the ecclefiaftical courts, but is quite a diftinct thing; and it being a matter with which many may be unacquainted, we shall here mention the feveral ftatutes 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 such a manner as by the faid act is directed: and every devife by will of the manors, lands, tenements, or hereditaments, or any part

2 Harrison's Cha. Prac. 88.

thereof,

thereof, contained in any memorial fo registered as aforefaid, that fhall be made and published after the registering of fuch memorial, shall be adjudged fraudulent and void against any fubfequent purchafer or mortgagee for valuable confideration; unless a memorial of fuch 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 memorial was duly figned and fealed; and the register shall indorfe a certificate on fuch will or probate thereof, and mention the day, hour, and time on which fuch 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 of an affidavit (wherein one of the witnesses to the memorial of fuch will fhall fwear, that he saw 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 regifter; which affidavit fhall 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 perfons interefted in the lands devised by reafon of the contefting fuch will, or other inevitable difficulty, without their wilful neglect, fhall be difabled to exhibit a memorial within the times limited; in fuch case the regiftry of the memorial within fix months after their attainment of fuch will, or a probate thereof, or removal of the impediment, fhall be fufficient.

By ftatute 6 Ann. c. 25. it is enacted, That a memorial and registry fhall 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 Middlefex, in like manner as in the Weft and East Ridings of Yorkshire. But neither of those three ftatutes extends to copyhold eftates, or to any leases at a rack rent, or to any leafes not exceeding twenty-one years, where the actual poffeffion goeth along with the leafe; and in the ftatute of 7 Ann. there is a refervation as to the chambers in Serjeant's-inn, the inns of court, and the inns of chancery, to which this act doth 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 leases as just before mentioned.

To effectuate a complete registry, it is neceffary that the memorial be on vellum or parchment, which neeed 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 premifes, or what is mentioned in the will relative to the real estate or chattels real devised thereby, which are to be defcribed verbatim as in the will. 4. The names and additions of the witneffes, viz. their feveral occupations and places of abode. The memorial muft be figned and fealed by one of the devifees, his guardians, or trustees; and then attefted by two witneffes who faw the fame figned and fealed 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 NorthRiding, at York; and for the county of Middlesex, in Bell-yard, Carey-ftreet, London); and at the office where the fame is to be registered makes an oath (unless an affidavit hath been made before a judge or mafter 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 flatute, and that frequently within four or five days after; when the will, probate, or office-copy, is fetched, and the regifter paid his fees for regiftering.The form of the memorial is as follows:

A ME

A MEMORIAL to be registered pursuant to an act of par. liament made for regiftering deeds, &c, within the [Weft, Eaft, or North Riding of the county of York, or the county of Middlefex, as may be the case].

THE probate of the laft will and teftament of A. 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

FOR registering deeds the form of a memorial varies very little from that used for a will; but we fhall omit mentioning any more here with refpect to deeds, as being foreign to this fubject, and particularly treated on in CHAP. XI. of our work, entitled, "The Trader's and Conveyancer's Guide and Guard;" and shall now proceed with what was proposed in refpect to proctors fees, and taxing their bills, and there, with conclude this chapter.

IN divers cafes it hath been held, that proctors fees are not fuable for in the ecclefiaftical court, but may be fued for in the temporal courts; from whence a prohibition may be had to ftop proceeding in the ecclefiaftical court, if fuit fhould be there commenced".-Upon proper application, as by petition from any fuitor, or perfon 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 regifter, directing the refpective parties to attend him if they think fit, one to make

See prohibition defcribed, page 18.

his 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 counfel, 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 those 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.

HE office and duty of those administrators who have

THE

the administration granted with the will annexed, being, as hath been seen in feveral parts of this work, very little different from that of executors, we fhall now take a view of both, as with respect to their power and what they are interested in; their getting in the deceafed's effects; and what shall 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 intereft fhall be allowed thereon. Likewife what executors and adminiftrators are to observe before they pay legacies; and with refpect to paying infants and