CHAP. IX.

AND

OF CONFIRMATIONS IN SCOTLAND, AND OF PROBATES LETTERS OF ADMINISTRATION IN ENGLAND, IN CASES INVOLVING QUESTIONS OF INTERNATIONAL LAW.

ALTHOUGH it is now clearly and universally understood that the lex domicilii is to rule in cases of intestate succession in both countries, it is equally well understood that in making up a title to administer the personal estate of a party deceased, it is necessary to have recourse to those courts which have local jurisdiction in respect of the situs of the property. When a title is once made up, the executor or administrator holds the property as a trustee for the use and benefit of those to whom the will, in a case of testate succession, or the law of the domicil, in a case of intestate succession, gives the beneficial right; whether this should be to strangers, or to the executor or administrator himself.

We have seen in a former part of this treatise that, in both countries, the clergy formerly claimed right to decide in all matters of this sort in their proper ecclesiastical courts. Before the Reformation, it is to be presumed that the practice in England and in Scotland was regulated very much in the same way.

At the Reformation in Scotland, this part of the ecclesiastical jurisdiction was settled by the establishment of consistory or commissary courts. One superior consistory or commissary court, with four judges, was established in Edinburgh, by Queen Mary, in 1563. (a) This court had

(a) Balfour's Practics, p. 670.

a local jurisdiction of its own within certain limits, and a right of reviewing the proceedings of all inferior commissaries. The Court of Session had the right of review of the decrees of the commissaries of Edinburgh. Upon the restoration of episcopacy it was enacted, by the act of the Scottish parliament of 1609, c. 6., that, of the commissaries, of Edinburgh, two should be named by the Archbishop of St. Andrews, two by the Archbishop of Glasgow; and the other bishops had the power of appointing commissaries within their respective dioceses. At the Revolution, the patronage of these offices devolved to the crown.

Confirmations of testaments, and appointments of executors dative, were to be granted by the commissary ubi defunctus habuit domicilium. When a person resided abroad, the commissaries of Edinburgh had jurisdiction in regard to the confirmation of his personal estate in Scotland. The person obtaining confirmation in any of these respective courts, whether the executor nominate, the executor dative, or the executor creditor, had, by obtaining such confirmation, the universal right of administration throughout Scotland conferred upon him, and as such could sue in any of the courts of law of that country (6).

Thus the jurisdiction of the commissaries remained down to a recent period. But by an act of the 4 Geo. IV. c. 97, the whole constitution of these courts was altered; the commissariot of Edinburgh was declared to extend over the sheriffdoms of Edinburgh, Haddington, and Linlithgow; the inferior commissariots were abolished; every county and stewartry in Scotland was to form a commissariot, with the sheriff or stewart for judge; and the right of review of the proceedings of all the inferior courts was taken from the commissaries of Edinburgh, and vested in the

(b) Erskine, b. 3. tit. 9. s. 29. Hall v. Macaulay, 19th Jan. 1753, Fac. Coll.

Court of Session. By another recent act of the 11 G. IV. and 1 W. IV. c. 69, this matter was further regulated. The commissariot of Edinburgh was restricted to the sheriffdom of Edinburgh, and every jurisdiction of a more extensive nature, heretofore possessed by the commissaries of Edinburgh, was entirely to cease, save and except such as regarded the confirmation of testaments of persons dying out of Scotland, having personal property in that country, which jurisdiction was reserved to this court. the other jurisdiction of the commissaries of Edinburgh, was devolved upon the Court of Session. Vacancies occurring in the offices of the judges of the Commissary Court of Edinburgh were not to be filled up; and as soon as vacancies should take place in the whole of such offices, the powers and jurisdiction of the court were to be vested in the sheriff of Edinburgh.

All

In England, probates of wills and administrations of intestates' effects have been in use to be granted by a very great variety of courts:-1. Where a person dying had bona notabilia, or goods to the extent of 57., in more dioceses than one, wills were to be proved and administrations granted in the Prerogative Court of the Archbishop respectively, within whose province the person dying had such bona notabilia. Of these prerogative courts, that of chief importance, and by far the greatest magnitude in point of business, has been the Prerogative Court of the Archbishop of Canterbury, sitting in Doctors' Commons in London. The Prerogative Court of the other archbishop is held at York. 2. Probates and administrations were generally granted in the Consistory Court of the Bishop, within whose diocese the deceased had his residence. 3. But they were also granted by the judges of a vast variety of peculiar jurisdictions, of deans, archdeacons, prebendaries, rectors, vicars, lords of manors, and others, exercising ecclesiastical jurisdiction by prescription,

It is astonishing been found toler

composition, or other special title (c). that this diversity of courts should have able in England for such a length of time. It is to be remarked, that though these courts were tenacious of their jurisdictions, yet nothing done by one of them was of any avail out of that jurisdiction in which it was granted; and this limitation extended, not only to the inferior courts, but also to the Consistory Courts of the bishops, and the Prerogative Courts of the two archbishops. In this respect the law appears to have always been more conveniently regulated in Scotland, where a confirmation in any commissary court appears to have completed the grant. Happily these numerous jurisdictions are now in the course of being regulated; it is to be hoped that they will be arranged in such a way, that every just cause of grievance may be obviated in future.

The ad valorem fees payable to the judges and officers of court upon confirmations in Scotland, have been the subject of many statutory regulations. In addition to all the other fees of court in Scotland, in the times of episcopacy, the bishop was entitled to a twentieth part of the moveables of a person deceased, termed the Quot, because it was the proportion or quota to which the bishop was entitled for his own use at confirming; and, for a long period, debts were not to be deducted in estimating the quot. At last, by the act of 1641, c. 61, quots were declared to be a grievance, and prohibited in future. This act was revived after the restoration by the act of 1661, c. 28; and though quots were restored to bishops the year after, by the act of 1662, c. 1, they were by a posterior

(c) The peculiar jurisdictions in England and Wales, with the manorial courts exercising such jurisdiction, amount in number to nearly 300. (Report made to his Majesty on the practice and jurisdiction of ecclesiastical courts, 15th February, 1832.)

act of 1669, c. 19, ordained to be paid only out of the free gear or deductis debitis. By an act of 1701, c. 14, the act of 1661, c. 28, was revived, and quots were thereby prohibited, with a clause saving the dues of court payable to the commissaries and their clerks; and this clause was so explained in practice as to justify the demand, not only of a reasonable fee to the clerks, but a composition to the judges in proportion to the amount of the property (d). This very indefinite right remained down to a very recent period, and was only entirely abolished by the act of 4 G. IV. c. 97, s. 1.

In England, the fees payable upon the granting of probates and administrations have attracted much attention from time to time. In a former part of this treatise, we have noticed the statutes and regulations made upon this subject in England down to the 21st of Henry VIII. (e)

Some partial regulations were subsequently introduced in regard to the probates of the wills or administrations of the effects of persons dying in the naval service of the country, by the statute of the 31 G. II. c. 10. (ƒ)

It is not proposed here to enter into any particular inquiry how or by whom confirmations may be obtained in Scotland, or probates and administrations in England, in This always has been, and always must

common cases.

(d) Erskine, b. 3. tit. 9. s. 28.

(e) Supra, p. 27. et sequen.

(ƒ) The most extravagant fees which have been the subject of regulation in either country, appear to have been those which were claimed within the archdeaconry of Richmond in the province of York. By a statute of 26 Henry VIII. c. 15., it appears that certain " parsons, vicars, and others" within that archdeaconry had been in use to take "of every person when he dieth, in name of a pension or of a portion sometime the ninth part of all his goods, and sometime the third part, to their open impoverishment." This was abolished by that act under the pain of a pramunire, and the fees were restricted to those which could be demanded under the act of the 21st of H. VIII. c. 5.