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30. A testator in his will refers to some documents in terms which indicate an intention to incorporate them in his testamentary dispositions, but which do not clearly identify the documents. How will the Court deal with this state of circumstances upon an application for probate?

The Court will, upon the documents being satisfactorily identified by parol evidence, order them, with the will, to be engrossed together so as to constitute the probate.

The rules as to the incorporation of documents may be summed up as follows :—

(a.) The testamentary instrument must clearly describe the document proposed to be incorporated, but the document may be identified by parol.

(b.) The testamentary instrument must describe the document as already existing; if defective in this, the fact cannot be supplied by parol.

(c.) When duly incorporated, the document, however informal, becomes equally valid with the instrument with which it is incorporated, but it must be such a document as actually to affect the operation of such instrument. (Browne's Probate Practice, 104; cited in Haynes's Guide to Probate and Divorce, 2nd ed., 17, 18.)

31. What power was conferred on the Court by the Court of Probate Act, 1857, in derogation of the rights of persons entitled by law to grants of administration of personal estate?

Illustrate your answer by reference to a class of cases in which the power is usually exercised.

The power referred to was conferred by sect. 73 of the Court of Probate Act, 1857, and enables that Court to grant administration to such person as the Court shall think fit to be such administrator, although he may not be the person by law entitled. That enactment applies to cases where it appears to the Court to be necessary or convenient, "by reason of the insolvency of the estate of the deceased, or other special circumstances," to appoint such person, and it applies to cases where the deceased died wholly intestate as to personalty, or leaving a will of personalty, but there is no executor

appointed or no executor willing or competent to act, or where the executor is not resident in Great Britain or Ireland. The grant if made thereunder must, however, be given to a person "other than the person who, if that Act had not been passed, would by law have been entitled to the grant." The terms of the section are perfectly general, and they give a most extensive power to the Court to make, under any special circumstances, the grant which in the particular case it may think fit. Before applying under this section for a grant, parties, though having a mere legal interest, should be cited, or they should renounce, and all deeds on which the application may be founded should be brought into the registry. (Browne's Probate Practice, 186-188.)

The two following recent cases will illustrate the section more clearly.

A. died intestate. His estate was insolvent, the only asset of any value being an interest in a mortgage of property in Ceylon, which he had conveyed to the trustees of his marriage settlement, one of whom was B., his brother-in-law. A. was widower, and left five children, two of whom were of full age. The two adult children had renounced administration. The Court, on a renunciation by the eldest son on behalf of the minor children, who had appointed him as their guardian for the purpose of the application, made a grant of administration to B., under 20 & 21 Vict. c. 77, sect. 73. (In the goods of Tyndall, 51 L. J. P. D. & A. 12.)

A., the wife of B., was entitled at the time of her death to a share in the residuary estate of P., subject to certain life interests. There had been no settlement upon the marriage, and A. left no will. B. died, without taking out letters of administration to A., and having made a will, which was proved by his daughter C., as sole executrix, he was at the time of his death indebted to the estate of P. A.'s share in the residuary estate of P. having been paid into the Chancery Division, D., who was also entitled to a share in the residuary estate, was desirous of taking proceedings to render A.'s share liable for B.'s debt to the estate. C. was cited to take out administration to the estate of A., but refused to do so. The Court made a grant to D., under 20 & 21 Vict. c. 77, sect. 73, of letters of administration of the personal estate of A. (In the goods of Wensley, 51 L. J. P. D. & A. 21.)

32. In what circumstances and by what mode does the Court allow a will to be proved by persons other than the executors, and to what rule, not applicable to ordinary executors, are such persons subjected?

As to the former part of the question, see the preceding answer. Such persons must, like all other administrators, give a bond for the due performance of their duties as such administrator (20 & 21 Vict. c. 77, sect. 81). The Court has no power to dispense with the bond under any circumstances.

Section 73 is as follows:

Where a person has died or shall die wholly intestate as to his personal estate, or leaving a will affecting personal estate, but without having appointed an executor thereof willing and competent to take probate, or where the executor shall at the time of the death of such person be resident out of the United Kingdom of Great Britain and Ireland, and it shall appear to the Court to be necessary or convenient in any such case, by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be the administrator of the personal estate of the deceased, or of any part of such personal estate, other than the person who, if this Act had not been passed, would by law have been entitled to a grant of administration of such personal estate, it shall not be obligatory upon the Court to grant administration of the personal estate of such deceased person to the person who, if this Act had not been passed, would by law have been entitled to a grant thereof, but it shall be lawful for the Court, in its discretion, to appoint such person as the Court shall think fit to be such administrator upon his giving such security (if any) as the Court shall direct, and every such administration may be limited as the Court shall think fit. (Browne's Probate Practice, 390, 391; Haynes's Guide to Probate and Divorce, 2nd ed., 30.)

33. When is a creditor entitled to take out administration ? What proof of debt is required from him generally, and what proof where two or more creditors are contending for the grant? If the estate is insolvent, may the Court require a creditor to enter into any special engagement, and, if so, in what shape, and why?

Only when neither the husband or widow of the deceased, as the case may be, nor any of the next of kin of the deceased, refuse to appear on being cited by the creditor, or renounce voluntarily. Even then he cannot obtain administration as of course, but must move the Court for a special order for leave to do so. Whether the estate is solvent or insolvent, the Court prefers the widow or one of the next of kin to a stranger.

The Court will not grant administration to a creditor without an affidavit to the effect that (1) he is a creditor; and (2) when his debt became due; and (3) that all persons entitled in distribution of the effects of the deceased have been cited or renounced voluntarily; and (4) the amount of the personal estate of the deceased.

When two or more are contending for the grant, the Court will require more particular evidence as to the amount of the creditors respective claims, their nature, amount, and consideration, so as to ascertain which is the more valuable, for the Court always endeavours to grant administration to the person having the largest interest in cases of conflict, and where the rights are equal in all respects the Court grants the letters of administration to the party first seeking them. (Browne's Probate, 178.)

The administrator's bond in such a case is not drawn by the solicitor to the creditor, but is now drawn in the registry, and an extra fee paid. The bond is printed and in the usual form, except that it contains a clause binding the administrator to distribute the assets amongst all the creditors, including himself, pro rata. (See In the goods of L. J. Brackenbury, 46 L. J. P. D. & A. 42.)

DIVORCE.

34. A marriage is contracted in this country between a foreigner domiciled in his own country and an Englishwoman. The husband and wife go to reside in the country of the husband's domicile, and the marriage is dissolved by a decree made there, upon grounds which would not support a decree according to English law. What, if any, effect will be given in this country to the decree so made! Explain the governing principle of your answer.

Full effect will be given to the decree so made by the Courts in this country.

"If a domiciled foreigner comes into this country for the purpose of taking a wife from this country, the moment the marriage is contracted, the moment the vinculum exists, then the lady becomes to all intents and purposes of the same domicile as the husband, and all the rights and consequences arising from the marriage are to be determined by the law of that which, by the actual contract of marriage, becomes the domicile of both parties, exactly to the same extent as if they had both been originally of a foreign country. It seems to me that there is no qualification of that rule. A wife's home is her husband's home; a wife's country is her husband's country; a wife's domicile is her husband's domicile; and any question arising with reference to the status of those persons is, according to my view, to be determined according to the law of the domicile of the persons, assuming always that the domicile is at bona fide one, and not a domicile either fictitious or resorted to for the sole purpose of altering the status." (Extracted from the judgment of James, L.J., on appeal, in Harvey v. Farnie, 50 L. J. P. D. & A. 17; L. R. 6 P. D. 35.)

35. A. and B. are first cousins, and are domiciled in a country where their marriage is illegal. They marry in England according to English law, and subsequently return to the country of their domicile. Is the marriage valid in England, and has the English Court jurisdiction to entertain a petition for nullity?

Assuming the facts to be as above, and that both the husband and wife before marriage were domiciled abroad, where the law is as above stated, the domicile will prevail, and the marriage can and will be declared void here.

The above question is founded on the case of Sottomayor v. De Barros. That case was decided originally by Sir R. J. Phillimore, when he held the marriage to be valid here, and pointed out that with few exceptions the Court of the lex loci contractús is not bound to recognise incapacity attaching to the parties by the law of their domicile. (See 46 L. J. P. D. & A. 43.)

Then there was an appeal, and the parties arranged to raise the point of law only, and obtain tl.e decision of the Court of Appeal on certain facts which were assumed to be correct, and left the real facts to be ascertained by Sir James Hannen. The Court of

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