the same (7); in which case, his proctor, at the time of exhibiting the will, ought to accept the contents thereof so far forth as it maketh for the benefit of his client; otherwise if any legacy is given to him, in the will, he shall lose it for his general impugning of the will. 1 Ought. 21. [252] And in such case, where an executor hath heen called to prove the will by witnesses, and hath fully proved it; if the party who caused him to do this shall not, after publishing the attestation, except against the will or the witnesses, nor propose any matter to hinder the passing of sentence for the validity of the will, the judge doth not usually condemn him in costs: but otherwise it is, if he shall propose such matter and fail in the proof; for then he will be condemned in costs, at least from the time of such proposal. 1 Ought. 20, Disputed wills. But where the parties interested do not call the executor to prove the will in solemn form, yet the executor himself may cause the will to be proved in this manner: As where an executor hath the greatest part of the goods of the deceased bequeathed unto himself, and he doubteth, after the witnesses shall be dead, that the wife or children or other kindred of the deceased will contest the validity of the will, he may cite them in special, (and all others pretending interest in general, and so is the usual practice,) to see the will proved by the witnesses; which being done, the will shall not be set aside afterwards (provided there hath been no irregularity in the process) when the witnesses are dead. 1 Ought. 20. Where the executor is infirm, or lives at a great distance, it is usual to grant a commission to some grave clergyman in the neighbourhood, to administer the oaths, and perform the other requisites for granting probate of the will. So also in the granting of administrations. 1 Ought. 322. (8) (7) No person can take by a will, and at the same time, do any thing that shall destroy it. Morris v. Burrows, 2 Atk. 629.; and a claimant under a will must admit it in toto. Allen v. Poulton, 1 Ves. 122. Disputed wills ought to be lodged in the registry of the court, for safe custody. Cunningham v. Seymour, 2 Phill. Rep. 250. A proctor for executors who has admitted the interest of a party opposing the will, cannot retract his admission and put the party to proof of his interest. Panchard v. Weger, 1 Phill. Rep. 212. Next of kin barred from calling in a probate by the circumstance of their having been conusant of a prior suit, in which the validity of the same will had been contested by other parties. Newell and King v. Weeks, 2 Phill. Rep. 224. (8) The commission to take affidavits of executors to the will of a deceased is addressed to two clergymen, and directs the executors to be sworn in presence of a notary public: it must be executed before such a notary, and not before two witnesses. Jones v. Jones, 2 Phill. Rep. 241. : Besides these forms of proving testaments above recited, which are referred to that kind of probation which is called the publication of the testament; there is yet another form which is called the opening of the testament, which form doth respect written or closed testaments, in the making whereof the civil law did require that the witnesses should put to their seals and after the death of the testator, at the opening of the written or closed testament, the same law did also require that the same witnesses should be called by the magistrate to acknowledge their seals, or to deny the sealing. But as we do not observe that solemnity of the civil law in the sealing of the testaments by the witnesses; no more do we observe that solemnity which the civil law requireth in opening of testaments sealed; unless this may seem to have some resemblance with this third form about the opening of the testament, which is enacted by the statute 21 H. 8. c. 5., which saith, that the bishop, ordinary, or other [253] person having authority to take probate of testaments, shall, upon the delivery of the seal and sign of the testator, cause the same seal to be defaced, and thereupon incontinent redeliver the same seal unto the executor or executors, without claim or challenge thereunto to be made. § 5. Swin. 450. Dr. Swinburne says, if a testament be made in writing, and afterwards be lost by some casualty; yet if there be two witnesses [that is, in the case of goods and chattels] which did see and read the testament written, and do remember the contents thereof, these two witnesses so deposing of the tenor of the will, are sufficient for the proof thereof in form of law: so that they be otherwise as well in respect of their skill as of their integrity, greater than all exception, and specially some other likelihoods concurring therewithal to make their testimony more credible. Swin. 450. (9) If an executor proves a will of a personal estate, wherein one of the legacies is forged, the executor in such case hath no remedy in equity; but ought to have proved the will, with special reservation to that legacy. Plume and Beale, 1 Peere W. 388. 2 Vern. 8.17. In which case, the forgeries are to be decreed against in the ecclesiastical court, and the will engrossed without them, and so annexed to the probate. [Will may be in part established, and probate refused to another [Refusing part: so reference to another will will make it operative as far probate to as its contents can be applicable. (1) (9) When a will is not found on the death of a testator, the presumption of law is, that it has been destroyed by him. Loxley v. Jackson, 3 Phill. Rep. 126. (1) Wood v. Wood, 1 Phill. Rep. 357–374. And see 1Phill. Rep. 187. ante, 59 a. note. part.] [Calling in A bequest of residue, omitted, through the error or inadvertence of the solicitor, to be inserted in a testamentary instrument, was not admitted to probate. (2) Probate in common form of certain "instructions," as conprobate.] taining the last will of the deceased, having been granted on a special affidavit, was called in eight years after, and the executors put on proof of the will. This step being held to be taken by the next of kin on insufficient grounds, the instructions were pronounced for, and next of kin condemned in costs from the time of giving in their allegation. (3) Executor's oath to render a just account. Probate of a codicil written in pencil, and which had been upwards of three years in possession of the executor, was called in and revoked. (4)] 18. By a constitution of archbishop Stratford: After the testament shall be proved according to custom before the ordinary, the execution or administration of any goods shall not be committed, but to such as shall faithfully promise to render a just account of their administration, when they shall be thereunto duly required by the ordinary. Lind. 177. Shall faithfully promise] And that by oath, saith Linwood; which may be before the administration. Lind. 177. And Swinburne says, in what manner soever the testament be proved, the executor, before he be admitted by the ordinary to execute, and before he have the will under the seal of the ordinary, is to promise by virtue of his oath, to make a true account when he shall be thereunto lawfully called by the ordinary. Swin. 451. By the ancient canon law, a proctor having a special proxy might make oath instead of the executor or administrator, and swear upon the soul of his client; but now, by canon 132., it is ordained, that forasmuch as in the probate of testaments and suits for administration of the goods of persons dying intestate, the oath usually taken by proctors of courts in animam constituentis [254] is found to be inconvenient; therefore from henceforth every executor or suitor for administration shall personally repair to the judge in that behalf or his surrogate, and in his own person (and not by proctor) take the oath accustomed in these cases. But if by reason of sickness, or age, or any other just let or impediment, he be not able to make his personal appearance before the judge; it shall be lawful for the judge (there being faith first made by a credible person of the truth of his said hindrance or impediment) to grant a commission to some grave ecclesiastical person, abiding near the party aforesaid, whereby (2) Rockell v. Youde, 3 Phill. Rep. 141. (3) Evans v. Knight and Moore, 1 Add. Rep. 229. he shall give power and authority to the said ecclesiastical person, in his stead to minister the accustomed oath above mentioned to the executor or suitor for such administration, requiring his said substitute, that by a faithful and trusty messenger he certify the said judge truly and faithfully what he hath done therein. 66 Which oath, to be administered to the executor, is usually in this form: "You shall swear, that you believe this to be the "true last will and testament of A. B. deceased; that you will pay all the debts and legacies of the deceased, as far as the "goods shall extend, and the law shall bind you; and that you "will exhibit a true, full, and perfect inventory of all and every "the goods, rights, and credits of the deceased, together with a just and true account, into the registry of the 66 court "of when you shall be lawfully called thereunto. So help you God." 66 19. By the same constitution of archbishop Stratford. After the testament shall be proved according to custom before the ordinary, the execution or administration of any goods shall not be committed but to such as are able; and if need be, shall give sufficient security to render a just account of their administration, when they shall be thereunto duly required by the ordinary. Lind. 177. And Lindwood hereupon observeth, that it seemeth hereby that the ordinary may remove the executor appointed by the testator from the administration, especially where there is just cause, as where he cannot give security for a due account. Lind. 177. And Swinburne says, the executor (if it be behoyeful) shall enter into bond, to make a true account when he shall be thereunto lawfully called by the ordinary. Swin. 451. But in the case of The King and Sir Richard Raines, M. 10 W., Bond to the like purpose. a mandamus was directed to sir Richard Raines to command [255] him to grant probate of the will of Edith Pinfold to one Richard Watts, who was made executor of it. Sir Richard Raines makes return to it, and admits that Edith Pinfold made her will, and Watts executor of it; but says further, that it clearly and judicially was proved and appeareth to him that Watts is worth nothing, but absconds for debt; and therefore that it is lawful to him to defer the granting of the probate, until Watts find sufficient security to perform the intent of the will. And it was argued by sir Bartholomew Shower, Mr. Montague, and Dr. Waller, the king's advocate general, (a civilian,) that this return was good, and that a peremptory mandamus ought not to be granted. And Dr. Waller said, that in fact the case was thus: Edith Pinfold made her will, and Richard Watts, her nephew, her executor, and devised to him 100l. for a legacy, and some cattle; she devised also to Baines, her brother, 500l., and the residue of her personal estate to the son of Baines. The will was brought by Baines to the prerogative court to be proved; and it was opposed by one Huntley; but the cause was not promoted at all by Watts. Sentence passed in the prerogative court for Baines; upon which Huntley appealed to the delegates, and the sentence there was confirmed; whereupon the will was returned into the prerogative court, and then Watts claimed probate: but upon examination it appeared to the judge, that he was an insolvent and necessitous man, and had received his legacy, and therefore the judge required caution; upon which Watts obtained this mandamus, and to it the judge made this return, which (by Dr. Waller) is good: For if there is any default in the judge in the administration of his office, it is a proper subject for an appeal; for this will, being of chattels, is altogether of ecclesiastical cognizance; and therefore as the spiritual judge shall determine concerning the validity of the will, so he ought to make a judgment, whether he ought to grant probate of it or administration, or if the executorship be conditional, as it may be, whether the condition be performed, or the like: in all which cases, if he makes a false judgment, the proper remedy is by appeal, and not to come in this manner for remedy to the king's bench. He argued further, that the judge hath done nothing in this case but what he ought to do; for in such cases he may properly require caution. In the time of the heathen emperors, the testaments were reposed in the colleges of the pontifices; and [256] from the time that the emperors became christian, the bishops were intrusted with them. Now the civil law was, that security should not be demanded de hærede, which at that time included what we now call executor, unless he was insolvent; and then it was lawful to demand caution or security. But after this, the canon law followed: and then they made use of the word executor, which was before included in the word heir: and of them there are three sorts; first, legitimus, to wit, the ordinary; secondly, datus, namely, he whom the ordinary appoints, and he always gives security; thirdly, testamentarius, who came instead of the heir, which is he whom we call executor by way of pre-eminence. And then, as the heir before, if he was insolvent, always gave caution; so, for the same reason, an insolvent executor always gives caution. To say the truth, there is a difference made, when the testator knew at the time of the making his will that the person whom he constituted executor was then insolvent, and when the executor is become insolvent by matter ex post facto ; but at what time Watts became insolvent doth not appear in this case; and therefore to justify the acting of a judge, the court will intend, if it be material, that he became insolvent since the death of the testatrix, rather than at the time of the will made. In Lind. 167. it is said that no religious person shall be |