The Sun.
London, England, 1854-02-07 00:00:00

THE NEW COURT OF PROBATE.

The following is a summary of the second report of
the commissioners appointed to inquire into the process,
practice, and system of pleading in the Court of Chan-
cery, and the law and jurisdiction of the ecclesiastical and
other courts in relation to matters testamentary :

SUMMARY.
It may be convenient to recapitulate the recommenda-
tions contained in this oar second report. They are as
follows :
I.—As TO THE TESTAMENTARY JURISDICTION GENERALLY
AS AFFECTING REAL AND PERSONAL ESTATE.
I. That the testamentary jurisdiction of the Preroga-
tive Courts of the Archbishops of Canterbury and York,
and of all other courts, ecclesiastical, manorial, or other-
wise, exercising testamentary jurisdiction in England or
Wales should be abolished.
2. That all questions of the validity of wills of real and
personal estate should fail under the same jurisdiction.
3. That such jurisdiction should be exercised by a single
court.

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4. That a court should be established for the purpose of
exercising jurisdiction in matters testamentary.
5. That the court should be a superior court of record,
and that the proceedings therein should be in the name of
her Majesty.
6. That persons interested under wills of real estate should
be under the same obligation of proving such wills as now
exists with respect to wills of personal estate.
7. That the benefit which attaches to probate in the case
of personal estate should be extended to devises of real
estate.

8. That after a will has been proved the title of a devisee
under it should not be open to question in other courts.
9. That it is expedient that proceedings should be taken
before the Testamentary Court for the purpose of establish-
ing intestacy as to real estate.
10. That such court should 'have power to grant certifi-
cates of intestacy, which should be conclusive in all other
courts.

11. As TO THE CONSTITUTION OF THE PROPOSED TESTA-
MENTARY COURT.
1. That the court to be established should be called Her
Majesty's Court of Probate, and should hold its sittings at
such place, in London or Middlesex, as her Majesty shall
appoint.
2. That there should be but one judge of the court
3. That the qualification of the judge of the Court of
Probate should be a 'standing of 10 years as advocate of
the Court of Arches, or serjeant or barrister-at-law.
4. That the judge of the court should be appointed by
the Crown, and should hold his office during good behavi-
our, and be removable upon an address by both Houses of
Parliament.
5. That, in order to provide for the occasional illness of
the judge, power should be given to the Crown to appiant
some other person to act temporarily as judge whenever
the occasion should arise.
6. That the judge should have power during vacations,
and on other special occasions to 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 jndge.
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 o 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 other competent persons now engaged in the perform-
ance of active duties in some court exercising testamentary
jurisdiction.
U. 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.
111.-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 power.
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
coil*, 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 he 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 adminstrator 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 arraement can
ng
_the(l
e,
be suggested, the districts should be arranged ande
offices established in the mode and at the places spe
in the schedule.
4. That the district officers, as well as the filarofcers of
and
Court Court of London, should be paid wholly by ae
not by fees.
5. That for each district there should be a registrar, to
be appointed by the Lord Chancellor, thebu dir o beet e an
and officer
of the Court of Probate, and subject to t and im-
mediate control of that court, and with the qualifications,
and subject to the restrictions, beforementioned as to offi-
cers of the court.
6. That the business preliminary to the seal being affixed
should be transacted in the district offices, but that the
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