THE DUTIES OF EXECUTORS AND OTHER TESTAMENTARY TRUSTEES. DEVISES, LEGACIES, AND THE SETTLEMENT OF ESTATES. CHAPTER I. THE PROBATE OF WILLS. SECTION I. PRELIMINARIES TO THE PROBATE. 1. The death of the testator is requisite to give the court of probate jurisdiction. n. 1. The modes of establishing this proposition. Presumptions of survivorship. 2. The will should be presented for probate in the shortest convenient time. 3. The executor should prove the will, or produce it and resign his trust. n. 2. Discussion of the early English practice upon these points. 4. Any person interested, or who believes himself interested, may petition for citation to have the will brought into court. n. 3. The court may appoint an administrator ad interim. 5. Any one having custody of will may be cited to produce the same. n. 6. An attorney or solicitor can have no lien upon will. 6. Mode of proving lost wills. n. 11. Cautions in regard to admitting such wills except upon clear proof. 7. Where will is purposely suppressed, legatees may have redress in equity. 8. All papers referred to in will to be deposited in registry of probate. n. 14. Original will may be taken out of registry by order of court. 9 and n. 16. Courts of equity will not assume or control the probate of wills, but will set aside probate fraudulently obtained. § 1. 1. THE first thing to be considered in regard to the last will and testament of any person is the death of the testator, which alone can give such an instrument conclusive force and operation, or give the courts jurisdiction of its probate. Before the death of the testator the will is merely inchoate, or deliberative, intended to become operative in the event of death, but liable at any moment to be altered or annulled.1 1 It seems to have been the practice of the English ecclesiastical courts, from an early day, to allow the proof of a will, and the recording of it among the wills of the office, during the life of the testator, at his request, but not at the request of the executor, or of any other person. But this was merely a precautionary measure against the loss of the instrument, and no authentication of the probate could be delivered out until after the decease of the testator. Swinb. pt. 6, § 13, pl. 1. The registry of probate is still made the depository of the wills of testators, during their lives, if they desire, in England and some of the American states. Gen. Statutes Mass. ch. 92, §§ 12, 13, 14, 15. The proof of the death of the testator will vary according to circumstances. In the majority of cases, the thing will be of such common notoriety that nothing more will be required. But there are some cases, where the testator was domiciled abroad, or dies away from home and in a remote country,—that it will not be convenient to adduce direct proof of the fact. In such cases, the early writers entered into many ingenious speculations, all of which result in the court acting either upon the ordinary presumption of death from the absence of the testator for seven years without being heard from, or for a less term, where the probabilities of death are corroborated by circumstances; or where reliable reputation of the fact and manner of his death has reached the neighborhood of the testator's residence; or in case of his being domiciled abroad, where such reputation has reached his friends and relatives in such form as to gain general credit. Swinb. pt. 6, § 13; 1 Wms. Exrs. 290, 291, and n. In some cases, although holding that the absence of a person from the state, without being heard from for any period short of seven years, is not sufficient to raise a legal presumption of his death, it has been considered that where letters of administration had been granted after an absence of three years, and a suit had been brought upon a promissory note payable to the intestate, without any plea in abatement being interposed, that a conclusive presumption of the death of the intestate arose from the above facts. Newman v. Jenkins, 10 Pick. 515. We apprehend the presumption would be primâ facie in favor of the decease if a plea in abatement were interposed, but open to proof that the testator is still living. We cannot refer to the cases in detail upon the presumption of the continuance of life from absence or other cause. The general rule is, that such pre 2. The time of the probate after the death of the testator has sometimes been made a question. But no definite rule can be laid down in regard to it. It should be done within such reasonable, decent, and convenient time as the circumstances sumptions are to be regarded as mere presumptions of fact, to be weighed by the jury in connection with the attending circumstances. But, for convenience, the period of seven years has been fixed as the limit of the primâ facie presumption of death, in the absence of all circumstances tending to the contrary. A nice question sometimes arises in regard to survivorship among different persons exposed to the same peril, and not known to have survived. The former rules of the English courts seemed to admit of considerable refinement as to the probabilities of the continuance of life in reference to age, sex, &c. It was accordingly sometimes said that a man would be presumed to survive a woman of about the same age, and that children under the age of puberty and aged persons, would be presumed to die sooner under the same exposure than those in the vigor of life. There is doubtless something in these circumstances worthy of being taken into account in determining such questions, as matters of fact. But the more recent English cases seem to regard such considerations as much less conclusive than formerly. In Underwood v. Wing, 1 Jur. N. s. 169, Wightman, J., said: "We may guess, or imagine, or fancy, but the law of England requires evidence; and (in a case of this kind) we are of opinion that there is no evidence upon which we can give a judicial opinion that either survived the other." The opinion was confirmed by the Lord Chancellor. See Best, Princ. of Evid. 478, 2d ed. So that we may now conclude, that although all these considerations may be urged, and the testimony of experts taken upon the points, the courts and the triers of the fact are at liberty to set them aside, and to be governed by their own views of probability and propriety, as to the fact of survivorship in any particular case. See post, § 50, pl. 3, and n. In an English case upon the main point discussed in this note, proof of the death of the testator being required to give the court jurisdiction, where the testator was an officer in the army, on the affidavit of his brother and executor, that he had received intelligence of his being killed in battle, and that he believed it to be true, probate was granted of the will. But upon the testator coming into court, in full life, the court revoked the same, and declared it to be null and void to all intents, and decreed the original will, together with the probate, being first cancelled, to be delivered to the testator. Napier in re, Phillim. 83. As to what will be regarded as evidence of the decease of one abroad, see Wainwright in re, 1 S. & Tr. 257; Danby v. Danby, 5 Jur. N. s. 54. |