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London, England, 1854-02-07 00:00:00

6. That the judge should have power during vacations,
and on other special occasions t 9 appoint, with the consent
of the Lord Chancellor, some competent person to transact
the necessary business incident Ito the passing of probates
and letters of administration, in like manner as such busi-
ness is now transacted by surrogates, and other urgent
business.
7. That the officers of the court should be appointed by
the judge of the court, with the approbation of the Lord
Chancellor.
8. That the subordinates of these officers should be ap-
pointed by the officers themselves, with the approbation
of the judge.
9. That the present deputy-registrars of the Prerogative
Court of Canterbury, and the assistant- clerks of seats, and
other such officers of that court as are engaged in and com-
petent to the performance of active duties, should become
officers of the Court of Probate, and perform such duties as
shall be assigned to them respectively by any general rules
and orders of the court.
10. That, subject to this provision, the officers of the
Court of Probate should be selected from advocates or bar-
risters, or persons practising as proctors or solicitors, or
from ther competent persons now engaged in the perform-
ance of active duties in some court exercising testamentary
jurisdiction.
11. That the judge and officers of the court should re-
spectively be paid wholly by salaries.
12. That no officer of the Court of, Probate should be
allowed, directly or indirectly, to practise on his own ac-
count. _ __ _

13. That the duties of the officers of the court should be
discharged in person, and not by deputy.
14. That the registrars of the court in London and com-
missioners in the country should be empowered to take
affidavits and transact other formal business now performed
by surrogates.
15. That the accountant-general of the Court of Chan-
cery should be the accountant-general of the Court of
Probate.
16. That proper provisions be made for enabling him to
act under the direction of the Court of Probate with re-
spect to funds subject to the jurisdiction of that court.
lII.—As TO THE JURISDICTION AND POWERS OF THE
COURT OF PROBATE.
1. That the court should have full and exclusive juris-
diction to determine all questions as to the validity of any
instrument purporting to be testamentary, whether re-
lating to real or personal estate, and whether or not made
in execution of any po•.eer.
2. That the court should have authority, as to personal
estate, to grant probates of wills and letters of admini-
stration as heretofore used in the Prerogative Court of
Canterbury, but not confined as heretofore to the province
of Canterbury.

3: That the court should have power, as to real estate,
to grant probate of wills and certificates of intestacy.
4. That probate, letters of administration, and certifi-
cates of intestacy should not be subject to be questioned
or disputed in other courts.
5. That the court should have the power to determine
any question of law, equity, or fact, which may be neces-
sary to be determined for the purpose of deciding any
question of testacy or intestacy, or the right to any grant
of administration, but not further or otherwise.
6. That, in cases of total intestacy as to personal estate,
or in cases where there is no executor willing and compe-
tent to take probate, the court should have power to ap-
point a proper person to be the adminstrator of the per-
sonal estate, if and when it shall appear to the court to
be necessary or proper so to do, notwithstanding the title
or claim of the husband, wife, next of kin, legatees, cre-
ditors, or other person or persons.
7. That the court should have power to appoint admi-
nistrators of personal estate pending any suit in the court
touching the validity of any testamentary instrument
affecting the same, or the grant of letters of administra-
tion.
8. That administrators so appointed should have such
of the rights and powers of general administrators as the
court shall, in its discretion, think fit, other than the
right of distributing the estate, and should act under the
direction of the court.
9. That the court should possess the power of appoint-
ing receivers of real estate pending any suit in the court
touching the validity of any testamentary instrument
affecting the same.
10. That receivers so appointed should be under the
same obligation of giving security, when required by the
court, and of accounting, and have :the same powers,
rights, and protection, as receivers appointed by the Court
of Chancery, and should act under the direction of the
Court of Probate.
11. That when the court is called upon to exercise the
special powers of granting administration before recom-
mended, it should, in proper cases, have the power to make
such grant to a person immediately accountable to the court
and, in effect, to be an official administrator.
12. That provision should be made for the deposit and
security of the moneys received by official administrators,
and by receivers of the rents of real estates.
13. That the court should have power to allow official
administrators and receivers a reasonable remuneration out
of the estate, such remuneration to be fixed by the court.
14. That this remuneration to official administrators
should be given, if the court so think fit, when it appoints
a general aminstrator not having a legal title, as well as
to administrators appointed for a temporary purpose.
15. That it should not be competent to a person to sue
or act as executor without having obtained probate, after
the grant of any administration granted by the court.
16. That when any such administration shall have been
granted, no person should have power to sue, or prosecute
any suit, or act as executor, until such grant shall have
been, by act of the court, revoked or declared to be deter-
mined.
17. That whenever it may have become necessary to
commence actions or suits in other courts, by or against
administrators temporarily appointed, the determination
of the administration by act of the court should not pre-
judice the proceedings; but that they should be continued
by or against any subsequent legal personal representative.
18. That the power of the Court of Chancery to appoint
receivers pendente lite, in cases falling within the jurisdic-
tion of the Court of Probate, should cease.
19. That the jurisdiction which the ecclesiastical courts
have possessed of compelling executors and administrators
to exhibit an inventory and statement of the assets of
deceased persons, and of enforcing the payment of legacies
or otherwise administering the estate of deceased persons,
should cease, and not be conferred on the Court of
Probate.
20. That, with this exception, all powers and jurisdic-
tion in matters testamentary, now exercised by the Prero-
gative Court of Canterbury, or any other existing testa-
mentary court, should be exercised by the Court of Pro-
bate throughout England and Wales.
21. That the determination of the court on all questions
should be binding and conclusive on all parties to the pro-
ceedings in all other courts and tribunal.
22. That the court should have the same power and con-
trol over all wills and testamentary instruments, or papers
purporting to be testamentary, as the Prerogative Court of
Canterbury now has with respect to matters within its
jurisdiction.
23. That the court should have jurisdiction to order the
removal, cancellation, or restoration of any will, or part of
a will, which may be shown to have been forged, altered,
or tampered with.
IV.—As TO THE DISTRICT OFFICES.
1. That district offices, through which probates or ad-
ministrations may be taken out in cases of small properties,
should be established in different parts of the country as
branches of the court, each of such districts to comprise a
county or counties, or some known division of a county or
counties.
2. That the number of districts should not be less than
20, or more than 30.
3. That unless some more convenient arrangement can
be suggested, the districts should be arranged and the
offices established in the mode and at the
in the schedule.
4. That the district officers, as well as the officers of
and
Court of London, should be paid wholly by salaries, 'nu
not by fees. to
places specified
5. That for each district there should be a registrar,cer
be appointed by the Lord Chancellor, but to be an:(T.m.
of the Court of Probate, and subject to the direct t
tioot;,.
andmediate
subject controltot
hoof
restrictions, that court,
b ef
o withrera etnht
cers of the court. eiocinuead Bai. dial
ffices, but that the
should be transacted in the district offices,
final That the business preliminary: to the seal being affixed
final act of affixing the seal to the probate or letters of ad-
ministration should be the act of the Court of Probate
itself, and that the documents should be transmitted by

2. That such powers as are now exercised by his Grace
the Archbishop of Canterbury with respect to the admis-
sion of proctors, so far as respects testamentary business,
should be transferred to the judge of the Court of Probato.
3. That any proctors now practising in the country
should, subject to the approbation of the judge, be admit-
ted to practise in the Court of Probate.
4. That the judge of the Court of Probate should nomi-
nate a competent number of proctors, attorneys, or solici-
tors to practise in each district-office, and that no other
person should be allowed to practise therein.
5. That contentious business should be open to attorneys
or solicitors on being admitted in the court, as well as to
proctors.
VII.-As TO PROCEDURE IN THE COURT OF PROBATE
GENERALLY.
1. That the distinction between probate in common form
and probate in solemn form should be continued.
2. That the executor or administrator should, in the
affidavit necessary for obtaining probate or administra-
tion, state to the best of his ability the nature and de-
scription, as well as the amount of the personal property. '
3. That, with this additional provision., probates and
letters of administration of personal - estate should be
granted by the Court of Probate in tommon form as here-
tofore ;used in the Prerogative Court of Canterbury.
4. That the probate, though taken out by the excelsior,
should, in cA,sps,..q&_wilhi operating both on real and per-
sonal estate, sWttre for the benefit of the devisees, so that
any devisee, upon the production of probate under the seal
of the court, or upon due proof of such probate having
been granted, would have a conclusive title as devisee in
all other'courts, and, before all other tribunals.
5. That any devisee should have power to cite the exe-
miters, and also residuary and other legatees, to prove the
will or take administration with the will annexed ; and
that upon their default the court should have power to
grant a probate of the will reciting such default, the effect
of which would be to perfect the devisee's title, but to
leave the personal estate unrepresented, unless the court
should think fit to appoint an official administrator; but
that application might subsequently be made to the court
by the executor or other parties interested in the personal
estate for letters of administration, with the will annexed,
in which case they should be granted in the usual manner,
but reciting or referring to the previous probate.
6. That in cases of wills operating on real estate only,
probate should be granted as in common form upon the
application of any devisee on behalf of himself and the
other devisees, and should enure for the benefit of all the
devisees.
7. That in every case in which a testamentary instru-
ment, whether constituting the whole or a portion of the
deceased's last will, may directly or indirectly affect per-
sonal estate, letters of administration of the personal estate
should not be granted without the whole will, whether
consisting of one or more instruments, being annexed to the
grant.
8. That whenever letters of administration, with the
will annexed, are applied for by a person entitled to a
grant, they shall enure for the benefit of the devisees as in
the case of a probate, and should, in all respects, have the
effect of a probate.
9. That if no such letters be applied for, a devisee should
have power to cite the next of kin, or other persons prima-
rily entitled to take out administration, and that on their
default the court should grant a probate, which should have
precisely the same effect as a probate granted to a devisee
on citing the executors or legatees.
10. That where a testator leaves two testamentary in-
struments, or sets of instruments, one affecting real estate
only, and the other personal estate only, probate should be
granted of each separately.
11. That the expense of the probate of a will by or at the
instance of a devisee should be borne by the devisee ap-
plying for such probate.
12. That certificates of intestacy as to real estate should
issue upon the application of the heir, or any one of the
heirs, or any person showing an interest, and enure for the
benefit of all the heirs and all persons having an interest.
13. That such certificates should be granted upon affi-
davit.
14. That caveats against probates of wills or grants of
administration should be lodged in the Court of Probate,
according to the existing practice of the Prerogative Court
of Canterbury.
15. That the entry of such caveats may be made in the
district offices as well as in the court in London, and should
be considered as common form business.
16. That proceedings under caveats should be such as
heretofore used in the Prerogative Court of Canterbury,
and should continue to be considered as common form busi-
ness until, upon the caveat being warned by the proctor
of the party propounding the will, or proposing. to take
out letters of administration, an appearance shall have been
entered in the Court of Probate by the opposite party.
1 That the entry of such appearance should be deemed
a contentious proceeding, capable of being taken by any
proctor or solicitor of the court.
- 18. That a similar course of proceeding with respect to
caveats should be adopted in reference to certificates of
intestacy.
19. That the practice of the !Prerogative Court of Can-
terbury, as to citing parties for the purpose of having wills
established or proved in solemn form, or letters of adminis-
tration granted, or probates or letters of administration
recalled, should be continued and applied to cases of real
estate and to certificates of intestacy, heirs being on the
same footing as legatees now are.
20. That any person propounding any testamentary
paper for probate, or applying as heir for a certificate of
intestacy, should be at liberty to cite whom he shall think
fit, the Court of Probate having a power to require such
other persons, if any, to be cited as it may think ne-
cessary.
21. That citations or other processes calling upon execu-
tors or other persons to accept or refuse probate or admi-
nistration, or to show cause why it should not be granted
to the person suing out of the process, should be deemed
common form business, and issued from and made return-
able in the district office as well as the court in London.
22. That subsequent proceedings, including the grant of
probate or administration when the grant follows as of
course and to either party, according to the tenor of the
citation, should also be treated as common form business.
23. That if any proceedings ofa contentious nature should
ensue they should be taken only in the court in London.
24. That the practice of the Prerogative Court, of ad-
mitting an opponent to be a contradictor without admitting
his title, be adopted in the Court of Prihate.
VIII.-As TO PROBATE AND ADMINISTRATION THROUGH
DISTRICT OFFICE.
1. That application may be made to the district office
for 'probate or letters of administration only in the case in
which the testator or intestate may have had a fixed place
of abode at the time of his death within the district, and
in which his personal property is sworn under 1,500/.
2. That there should be an affidavit as to the residence
of the deceased and the amount of his property.
3. That this affidavit should be conclusive, and that
the grant made through the district office should not be
liable to be impeached or recalled on the ground that the
deceased had no such fixed place of abode as alleged, or that
his property exceeded that prescribed amount.
4. That the probate or letters of administrat; on being
under the seal of the Court of Probate, and not of any
local tribimal, should be as valid as a grant made in
London.
5. That provision shall be made for a daily transmission
and return by post of documents between London and the
district offices.
6. That, if it should be thought advisable, wills should
remain for a limited time in the district office for the in-
spection and examination of parties interested, but should
ultimately be sent up to London.
7. That indexes should be deposited in the district office,
corresponding with the index in London, so that searches
may be made in the country without the necessity of re-
sorting to the London office.
8. That no contentions testamentary business should be
transacted in the district offices.
9. That where the testator or intestate has had no fixed
place of abode at the time of his death, or where the death
is not stated to have occurred in England, the application
for probate or letters of administration should be made to
the Court of Probate in London.
10. That it should not be compulsory on any party to
apply to a district office for probate, or letters of adminis-
tration, but that in all cases it should be competent to the
Court of Probate in London to grant probate or letters of
administration wherever the residence of the deceased may
have been, and whatever the amount of the property.
11. That certificates of intestacy should not be applied
for at the district office, but that in every case they should
be applied for in London.
12. That means for taking the requisite oaths and com-
plying with otherprescribed formalities should be provides.
in the country ; but that when the amount of property
above the prescribed limit, the documents should be
exa-
mined and prepared by the officers in London, and that the
at n
probate or administration should be issued e from
the central court.
.bvIDENcE, ARR., PRACTICE IN
IX.-As TO PLEADINGS, .
THE COURT OF
at present
prevailing in
1. That the system of pleading
the Prerogative Court should li
be aboshed.
2. That wills should be propounded in a simple allege'
tion of the execution and attestation of the instrument
and of the sanity of the testator
•
3. That claims to administration of intestacy should be
made in a simple form of allegation of the intestacy of
the deceased, and of the character in which the claimant
claims such administration.
4. That in other cases the preliminary pleadings should
a simple form.
also. beT nhiat,
except by leave of the court, no further or
other pleadings than such preliminary
simple allegations
as above suggested on the part of the party proponent
should be entered into by him, and no pleadings of any
kind by the party opposing.
6. That it should be obligatory on the court not to give
such leave in cases in which the validity of the instru-
ment in dispute depends upon the execution or Attestation
of the instrument, or upon the sanity of the testator, or in
any case for the purpose of pleading matters of evidence.
7. That in other cases the court should have the power
to authorise or require either party to bring in such state-
ment of the case as it shall see fit.
8. That each party shall be under the obligation of
bringing in, as the 'first step in
hisproceeding, a full
affidavit as to testamentary Pa pers in the form now used
in the Prerogative Court, and technically called an " affi-
davit of scripts."
9. That each party should have the power to exhibit in-
terrogatories for the examination of the other, as adopted
in suits in the Court of Chancery under the recent altera-
tions in the practice of that court, and to enforce produc-
tion of documents as used in the same court.
10. That upon application made to the court founded
upon affidavit, stating that there are reasonable grounds
for concluding that any person is in possession or ha. the