Wiki: ecclesiastical law on testaments

: From The clerk’s assistant in the practice of the ecclesiastical courts, by William Cockburn LL.B, 4th edition, pp129-151, Dublin 1792.

	CHAP. XXIX. Of Wills and Testaments.
Testament. SECT. 1.	A Testament is the just sentence of our will concerning what we would have done with our substance after our death, together with the appointment of an executor: and it differs from a will or codicil in the appointing an executor, for this is essential to a testament.
Codicils.	§2. Codicils are for the explanation or alteration of something in the testament, or the addition to, or subtraction of something from it: and there may be as many as the testator pleases, if not contrary to each other. §3. If in two codicils (it not appearing which was the last) one and the same thing be devised to different persons; it shall be divided between them.
Lands devised.	§4. Lands may be devised by will without executors; and they shall be in writing signed by the party devising them, or by somebody by his directions; and attested and subscribed by three or more witnesses in his presence: and no devise of lands, &c. shall be revocable but by will or codicil in writing, or other writing declaring the same; or by burning or cancelling the same by the testator, or in his presence, and by his directions †. [footnote: † See the Irish Stat. of 7 Gul. 3 Sess. 1 c. 12. 29 Car. 2 c. 3. Eng.] And devises of lands, tenements or hereditaments are not cognizable in the ecclesiastical court.
Testaments advisebly to be made.	§5. Testaments should be advisedly and deliberately made; the testator should be Compos Mentis, & sui Juris; his will should be independent, without fear, fraud or coercion: it is ambulatory to his death, so that no manner of expression in his will shall disenable him from making another. The civil law requires seven witnesses to a testament; but with us two are sufficient; except to a will devising lands.
Wills Nuncupative.	§6. Wills are written or nuncupative. Nuncupative wills are not good where the estate bequeathed in them exceeds the value of thirty pounds; unless it be proved by the oaths of three witnesses that were present at the making thereof. §7. Nor unless the testator, at the time of its being pronounced, bid the person present, or some of them, take notice that such was his will, or to that effect: nor unless it was made in the last sickness of the deceased, in his own house; or where he resided for ten days before; unless he was surprised and taken sick from home ‡. [footnote: ‡ 7 Gul. 3 ut antea.] §8. And no testimony shall be received to prove such nuncupative will, after six months pass from the time it was spoken; unless such testimony, or the substance of it, was committed to writing within six days after making said will. §9. No probat shall be given of such will till fourteen days from the testator's death expire; nor unless citation issues to call the widow, or next of kin, to contest the same if they please. And no will in writing concerning a personal estate shall be repealed, or otherwise altered, or changed by a will by word of mouth only; unless it be committed to writing, read to, and allowed of by the testator, and that proved by three witnesses at least. §10. As to the method of granting administrations in cases of intestacy, and also the method of distributing intestates estates, see the stat. 28 Hen. 8. c. 18. 10 Car. 1. Sess. 3. c. 10. 7 Gul. 3. Sess. 1. c. 6. with the reading thereon in Robbin's abridgment †. [footnote: † 21 Hen. 8 c. 5. Eng. 43 Eliz. c. Eng. 22 & 23 Car. 2. [illegible] 10. Eng.] No witness that is legatee can be admitted such without renouncing his legacy, and leaving such renunciation with the register. See the last Irish statute 25 Geo 2. cap. 11. CHAP. XXX. Of Testamentary Causes.
Oath of executor. SECT. 1.	AS the oath in animam domini is prohibited proctors; the executor should personally exhibit the testament; or if not able to attend, should procure a commission to some persons to administer to him an oath that he believes it to be the true last will and testament of the deceased: that he will pay the debts and legacies according to law, as far as the assets extend. † [footnote: † Can. 78 Car. 1.] §2. And that he will have the assets appraised, and a true inventory formed of them, and returned within a certain day, which the court shall appoint: And letters of administration shall be granted to the executor, and the judge shal assign him a day for returning an inventory.
Proving in Common Form.	This is proving a will in common form, and it may be questioned at any time within thrity years.
Inventory.	§3. An inventory is a description of the goods and chattels of the deceased, valued by four indifferent persons of the neighbourhood, two of which shall be at least his creditors, or legataries; and it is to be begun within thirty days after the opening the testament, and finished within sixty after, if the goods be near each other; or if remote, within one year: And no executor is to be sued till after such times.
Proving in form of law.	§4. Proving a will in form of law is done by citing the widow or next of kin to be present when the will is exhibited; witnesses produced, admitted, sworn, and examined upon it; their depositions published, and the validity of the testament pronounced for: And in this case the executor is not to be compelled to prove it any more.
Administrator.	§5. An administrator, where a person died intestate, is to swear that he believes there was no will before he can take administration; and that he will give in an inventory (as before in the case of an executor) and he is to give sufficient security for his distributing the assets according to law, and giving in an account.
May be compelled to account.	§6. And although a day is assigned him to give in an inventory and an account; yet it is held, that an executor or administrator may be compelled to do it before that day, by a legatee, next relation, or creditor.
Temerary Administration.	§7. Before a cause of temerary administration be instituted, the executor or administrator intending to sue, should shew the person to be sued his letters of administration; and before witnesses desire him to give up the goods of the deceased, which he has in his hands, that they may be applied to their proper uses. §8. And if he will not give them up, the executor or administrator should sue him in a cause of temerary administration, or may cite him to answer articles at his promotion.
Sentence in Temerary Administration.	§9. The nature of the sentence in such cases is, that such a person is lawful executor of the deceased; that the impugnant hindered the execution of the will by temerariously administering and detaining such and such goods of the deceased; for which he is to be pronounced to have fallen into the sentence of excommunication pronounced by law; and to be excommunicated: And he is to be denounced as such, and proceeded against as against any other excommunicated person, and to be condemned in the costs.
Intimation.	§10. If an executor about to prove a will in proper form is afraid that the impugnant will absent himself, and prove contumacious, and so give great delay: And if his witnesses are of precarious lives; he should insert in the original citation an intimation, that whether the impugnant appears or not, the court will proceed in the cause, and in his absence in penalty of his contumacy: And intimations of the same kind are inserted in many other testamentary causes.
Dissenting to the jurisdiction of a prerogative.	§11. If an executor or administrator be called before the judge of the court of prerogative in any testamentary cause: Or if the next of kin having a right to the administration, be cited to accept or refuse it; his proctor may appear under a protestation of not assending to the judge, and alledge that the jurisdiction of the coury is not sufficiently founded; for that the deceased did not die possessed of Bona Notabilia in any diocese or peculiar, but that in which he died. §12. And the proof that he had Bona Notabilia shall lie upon the promovent; and the impugnant if the promovent proves it) shall be condemned in the costs of the proof, and be obliged to answer: Or the impugnant may plead that he is not obliged to obey the mandate, unless the jurisdiction of the court first appears.
Exhiniting Instruments.	§13. If a will be contested that is written out entirely, or subscribed by the testator, and the witnesses to it are dead: Or if any instrument incidentally brought in be exhibited; (and the subscribing persons are likewise dead: §14. In these cases, if the party has any other instruments subscribed by the same persons, or witnesses, to which he can produce living witnesses: Then the proctor may exhibit them in proof of his allegations; and alledge that such are subscribed; and this allegation is to be propounded jointly and severally, as all other allegations are.
To [illegible]	§15. And then he shall produce witnesses to his allegation, and after publication, if his intention be proved, and it appears that the second instruments, or writings exhibited were signed, and subscribed and signed to the first exhibits; he shall alledge that he has sufficiently sounded his intention by the deposition of the witnesses, and shall refer himself to them, and the exhibits aforesaid, and the law:
A Comparison of hands.	§16. And he shall prey that a comparison be made between such words (these particularly to be specified) in them; and such words in the first exhibits; that is, the names subscribed to both exhibits; by skilful persons; sworn faithfully to compare the same and to return their judgement on a day certain; and the judge shall decree accordingly. §17. And four or six of the proctors most skilful in writing shall be sworn to that purpose, and they shall meet in a place indifferent to both parties with the register to produce the exhibits.
Comparators to return their Judgement.	§18. And the adversary or his proctor may be present to give any information to the comparators; and they are to return their judgement in writing subscribed by their own names: And this is to be exhibited on the day appointed by the party praying the comparison; the adversary dissenting if the similitude be confessed; if not, accepting it as far as it makes for his party.
Will entirely in the testator's hand.	§19. If a will be written entirely in the hand-writing of the testator; or if it be written by another, and subscribed by him, and not published and acknowledged before witnesses; if it be proved by the executor, that it was found immediately after the testator's death among his valuable papers, before such an one could be written; and the comparators shall declare that it is the testator's hand-writing; this shall be confirmed, especially if it be a will containing dispositions among children, or for pious uses. §20. Or if one witness proves the will, and it be found by comparing the writing that it is signed by the testator's hand, it is sufficient. §21. Or if it be proved by two witnesses that the testator confessed and declared that he made a will, without declaring the contents, or where it was; if the writing agrees to the testator's hand, it is held that it shall be pronounced valid, especially if it be a disposition among children; or for pious uses. CHAP. XXXI. Of calling Executors, &c. to account.
SECT. 1. Legatary may complet Executors to account.	A Legatary not paid his legacy, and the executor refusing to pay him through want of assets; or a credito in such circumstances may compel the executor to exhibit an inventory, and to render an account of the assets he has administered. §2. And the person requiring and bringing him to account shall not be condemned in costs, unless he contests the account, and compels the executor to prove it.
Residuary legatee, or minor.	§3. A residuary legatee, and a minor being a legatee, may sue for an account by his curator or guardian, which the court shall assign him; and the next of kin to an intestate may likewise compel the administrator to account, that the legal distribution may be made amongst them.
Distribution of Residue.	§4. And if the residue of the testator's fortune be not at all disposed of, and the executors are left a particular legacy for executing the will; so that they are Nudi Executores: It is held that the judge from his meer office may call them to an account; or at the instance of those interested, and order a proper distribution of such residue.
Executor must appear personally.	§5. The executor called to account must appear personally, unless the interest of the person citing him does not appear; and he denies that he is interested: and his proctor exhibiting his proxy for him shall alledge that his party is not obliged to answer the citation, unless the promovent's interest first appears. §6. And if he proves his interest, the impugnant shall be condemned in the costs made upon the proof, unless he can shew some probability of his not knowing it; and when the interest of the promovent is proved, he does not contest the proof, or take exceptions against the witnesses: the reason why the executor must appear personally is, because he must swear to the truth of the account. §7. The certificate of the mandate to exhibit his inventory and account should be continued from day to day †, until proof of the promovent's being interested be made; and that done, the impugnant may be excommunicated, if he does not obey the tenor of the mandate. [footnote: † See Chap. VII. Sect. 13, 14.]
Creditor proving his Interest.	§8. A creditor to prove his interest may alledge that the testator was in debt to him, and may shew his bond or obligation, and prove it by one witness; or by his book, where he keeps his accompts, if he be a merchant, and proves it to be his accompt book. In such cases full proof is not necessary, (for it being an incidental temporal matter) one witness to it is sufficient.
Commission for taking Accompts.	§9. As the impugnant is cited to appear personally to give in his account upon oath, infirmity of other just causes being alledged and proved by his proctor; a commission to have him sworn and examination upon the accompt shall be granted, and executed as other commissions; the adversary being monished to attend; and if he does not, all should be done in penalty of his contumacy.
Inventory exhibited.	§10. When inventories are formed, the goods and chattels of the deceased are to be appraised, and valued by some honest persons of the neighbourhood, and reduced into an inventory, which the executor or administrator shall (by virtue of the former oath taken by him, at the time administration was granted) exhibit: But if he be cited to return an inventory, he then is specially to swear to the truth of it. §11. One inventory subscribed by the party exhibiting it is to be left with the register; and another subscribed by the register is to be given to the party: And this inventory thus formed and exhibited, if the party swears it to be true, has full credit in every cause; and (as it is held) frees the executor from proving the truth of it; or that the testator had no more assets; and the proof that he had, shall lie upon his adversary. §12. If lands be devised to be sold for the payment of debts or legacies; neither the money raised, nor the profits are reckoned the testator's goods or chattels.
Inventory before Letters of Administration.	§13. A party having interest in the estate of the deceased can compel the executor or administrator before letters of administration issue under the seal of the court, to exhibit an inventory upon oath: And also at the petition of the said party at the same time, the judge may grany a commission to certain persons to appraise; and to return an inventory of the whole personal estate of the deceased.
Commission or appraising testator's assets.	§14. And a monition issues to some one in particular, and to all others in general, possessing any of the goods of the deceased to exhibit them to the appraisers, for the purpose aforesaid, under penalty of the law and contempt thereof: And the commission being executed, the inventory is to be exhibited, subscribed at least by two of the commissioners.
Accompts.	§15. In accompts the executor is to charge himself with the value of all the assets specified in the inventory; and the debts of the testator (such as are paid and not paid to be specified) the funeral expences, the charge of proving the will, and the costs (if any) of recovering or defending the goods of the testator are to be deducted out of this, that it may appear what sums remain unadministered in his hands. §16. Although an inventory be returned, and an accompt given in at the meer office in the absence of the party, yet the executor may be cited, at the instance of any one properly concerned, to return a true and full inventory of all the goods of the deceased; and personally to render an account of his administration; and he is to do that upon oath if required; and he may exhibit the former inventory, swearing that it is perfect. §17. And this inventory is not to be exhibited under a protestation of adding to it, as it is usually done when exhibited in common form: But it must be full and perfect; and if it be not, the party exhibiting it may be proceeded against for perjury, as he swears it to be a true and full inventory: And the adversary may reprove and object against this inventory, although it has been doubted, whether he could do so after demanding his oath upon it, that is, the executor's oath.
Small Sums allowed the Executor upon his own oath.	§18. Small sums, not exceeding forty shillings, shall be allowed the executor on account upon his own oath: And an allegation from his proctor (as he the executor swore before to the truth of the account) that he expended such sums in sufficient, without the executor's appearing again, and swearing that he did so: But if he divided fraudulently great sums into small sums, he is not to be allowed them.
Debts of the Testator paid proved legal.	§19. In charging debts of the testator which he paid, he must prove that they were lawful debts; which may be done by shewing the bonds or specialties, and proving them by one witness; and full and true payment by another witness. §20. And the entire expences he has been truly at in defending or prosecuting any law-suit on account of the testator, shall be allowed the executor: but if he recovered costs he shall be charged with them: But he shall prove that the suits were commenced by the proper witnesses; and what sums thereon (above forty shillings) he expended.
Executor obtaining a Plené Administravit.	§21. When executors or administrators are cited to account; or if they be not cited, to avoid disturbances they may call the next of kin in particular, and all others in general, (that are any ways interested in the goods of the testator) to appear on a certain day to see a true and full inventory of the testator's assets given in; and an account of their administration rendered, witnesses produced, and so forth to determine sentence; with intimation that if they do not appear, they will proceed in penaly of their comtumacy. §22. And (they not appearing) proceedings must be carried on (as before in matrimonial causes) in penaly of their contumacy.
Sentence for it.	§23. And sentence obtained this way for a Plené Administravit will prevent many particular suits for an account; as each person any way concerned before this sentence (notwithstanding sentence in a former suit where he was not cited) might sue; and will secure the testimony of his witnesses, if any of them be weak and infirm: For proofs made and acts done at the instance of a party cannot hurt absent persons; for they may also sue unless generally cited as here laid down. §24. Minors concerned cannot be prejudiced by this, but may call executors to account: Though is is the opinion of some that minors above seven years may be called to constitute a proctor; and to pray that guardians or curators be assigned them; and that if they do not so, all acts in pain of the contumacy will be valid: And it is also held, that the judge from his office may assign minors within seven years of age, guardians, and if he does, that the acts done in their preference are good. But quœre? CHAP. XXXII. Of appointing Guardians to Minors, and of Suits for Legacies.
SECT. 1.	IF a legacy be left a minor under seven years; the father, or next of kin to said minor, may appear, and alledge that such a will made by such a person; and such an one appointed executor therein; and that such a legacy was left his son, who is under seven years of age.
Guardians for Minors.	§2. And that as he has not a person in law to sue, he implores the office of the judge, and prays that guardians be assigned him to prosecute a suit against such executor: and the judge shall assign him the said father, or next of kin, with one or two of the proctors of the court for guardians. §3. But if the minor be above seven, he must appear personally, and alledge as above; and pray that such and such guardians be assigned him: And upon his living at a great distance from the court, or upon other reasons, the judge may grant a commission for that purpose: Or the minor may constitute a special proctor to pray that guardians be assigned him.
Cause described.	§4. When guardians are appointed, they may in consequence of that issue citation against the executor; and in the beginning of the libel the cause is to be described in this manner: In the name of God, Amen, Before you, A.B. &c. The party of J.C. a minor, and legatary in the last will and testament of C.D. suing by E.F. his guardian by this court lawfully constituted, against G.K. &c. §5. And a particular article is to be inserted in the libel, declaring that E.F. was lawfully assigned and made guardian: and if he was constituted guardian by commissioners appointed for that purpose, he should, before conclusion in the cause, exhibit the commission and assignation of him as guardian: And formerly the suit was instituted in the name of guardians.
Proctor to indemnify himself.	§6. The proctor, as he is to answer for what costs are to be given against the minor, if he be cast in the cause, should care to get sufficient security to indemnify himself. §7. If the executor pays the legacy, although the guardian never pays the minor, he is not to be troubled by the minor any more; because he paid it to the person appointed by the court to sue for, and to recover it; and the judge should take sufficient caution from the guardian before he appoints him such.
Legacy deposited in Court.	§8. And the safest way would be for the executor (after he appears upon the citation) to deposit the legacy in court: and the judge (before he gives it to the guardian) should get security from him that will deliver it to the minor when of age.
One out of many executors cited declining to answer.	§9. If two or three executors have been appointed to a will, and they all proved, and took the execution of it upon them; then any one cited singly may except against answering, or defending the cause, until they are all cited: this should be done before contestation, otherwise he takes the defence of the cause upon himself. §10. If any of them die, the survivor or survivors are to be sued; and if they all die, the executor of the last survivor, and legacies left by the first testator (where there are assets of such testator) shall be paid before those left by the last.
Legacy left by a Will suppressed.	§11. If a will be suppressed, and administration granted to the next of kin; any person that has a legacy left him by that will may sue the administrator; and, libel that the deceased made a will; that administration of his effects was granted to the impugnant, whereby he became possessed of all his assets: And if he proves it (although the will was never exhibited or proved before any judge) he shall obtain.
Distribution among Legatees.	§12. The debts, funeral, and other expences of the deceased being paid; if effects sufficient to pay the legacies do not remain, a distribution is to be made among the legatees in proportion to their legacies: And legacies in kind are to be paid (if they remain after debts) without any respect to legacies in general. §13. If suit be instituted for a large legacy in general, and sentence be given for it, without the intervention of any of the legatees in general; and it be paid: the other legatees cannot compel the executor to pay them, or to make any distribution. But Quœre?
Offers in legacies.	§14. In causes of legacies the same offers may be made as in causes of tithes †; for an executor sued for a legacy of an hundred pounds (having but ten after the debts and demands are paid) may offer that sum; and alledge that he has no more, and that he has fully administered: if this be proved, and the promovent refuses it; he shall be condemned in costs. [footnote: † See Chap. 23.]
Legacies in Kind.	§15. If a legacy in kind be sued for, he shall alledge (if he can pay it in kind, and it remains with him) that he is ready to deliver it in any indifferent place, to be appointed by the judge: but if it be destroyed, he should offer the value. If he has altered, or destroyed legacies in kind, he may be punished canonically for violation of his oath: because such legacies should be paid in kind. §16. If a testator has bound himself in any sum to be paid after his death, and that sum be not paid; the executor sued may offer the legacy upon this condition, that the legatee give him proper caution to indemnify him from such demand; and that (if he is obliged to pay it) he will refund a ratable proportion of such legacy. §17. And if the legatee denies such bond or sum to be due, the executor must prove it: and he may then deposit it with the register under the conditions aforesaid. §18. If an executor has only bonds for desperate debts, or sure money, he may alledge (in order to prevent an expensive suit) that he will give up such bonds or debts to the legatee suing him; and give a proper authority to him for recovering them: and if they are refused, and it cannot be proved that he had any other assets; he shall be dismissed with his costs expended since the time the offer was made. §19. But it is otherwise, if it be proved that he had any assets at all, besides such bonds or obligations: And if any assets remain besides, he should supply the expences attending the recovery of such debts; or protest, when the offer is made, that he has nothing to do so.
Plenè Abministravit alledged before Conclusion.	§20. If there are not goods sufficient to pay the legacy sued for; the executor shall alledge before conclusion that he has fully administered, and that there are not lest assets enough to pay the legacy. §21. And he shall bring in an account of his administration, and exhibit a true copy of the inventory before given in by him; and shall prove it from the consession of the adversary's proctor; or by witnesses who saw it drawn, and attensted by the register of the court; or by a scrutiny to have it compared with the original: otherwise he shall be obliged to prove what effects came to his hands by proper witnesses. §22. But the modern practice is to exhibit a copy of the inventory before exhibited, with an addition of what goods came to his hands, since it was exhibited upon the oath of the party: And if it appears that there was not sufficient to pay off the legacies; it lies upon the adversary to prove that he received more goods.
Plené Administravit after Sentence.	§23. An executor may plead plené Administravit after sentence is given to prevent execution: but then he may be condemned in the costs expended till that time, and he must pay them before he is heard. §24. Unless he was condemned in a debt of the testator in the secular court, not known to him, before sentence passed; which leaves thim not wherewithal to pay the legacy adjudged: and if he proves it, he shall not pay the costs. §25. But if it be proved that he knew of this debt, he shall be condemned in the costs; his alledging that he did not know of this till after conclusion; and his oath to it (if uncontroverted) will be sufficient. §26. If an executor pleads Plené Administravit in the beginning of a suit for a legacy, and shall exhibit his inventory, and accompt; and the legatee compels him to justify and prove it; if he does prove it, such legatee shall be condemned in costs. §27. Because he had or might have had time sufficient to search out the truth, by enquiring of the creditors mentioned in the account: but if he does not compel the executor to prove it, he shall pay no costs. The End of the Testamentary Causes.

ecclesiastical law on testaments

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