ON PROVING WILLS. CHAPTER II. A PERSON finding himself appointed an executor for the first time, and being desirous of carrying out the wishes of his deceased friend by acting in that capacity, will naturally be at a loss to know how to obtain probate of the will. Before proceeding to the Registry to lodge the will, make the necessary affidavits, and produce evidence of the death of the testator whose will it is intended to prove, the executor should endeavour to ascertain, as near as possible, the amount or value of the deceased's personal estate, in order that the proper stamp may be impressed on the grant. A table of the stamps payable according to the value of the property will be found at the end of this chapter. As considerable error seems to exist with regard to the date at which the value of the different assets should be ascertained, it may be as well to say that they should be valued as near as possible at the date of the grant, and not at the date of the death, as is too frequently assumed, and it is of much consequence that this fact be noted, as should any considerable time elapse between the date of the death and the date of the grant, the value of the assets on which the stamp duty would fall to be paid might differ materially from their value at the date of the death, for the prices of stocks and shares may have either increased or decreased in the interval, added to which all dividends, interest, and rents of leaseholds, accrued within the same period, will have to be included under the stamp in accordance with the decision in the case of Partington v. AttorneyGeneral. (H. L., English and Irish Appeals, 100.) In preparing an estimate for probate, no deduction must be taken for debts or expenses, the stamp impressed upon the grant attaching to the gross and not the net value of the estate, with two exceptions; the first being where the testator has mortgaged his leasehold property, in which case the 31 & 32 Vict., c. 124, permits the executor to deduct the amount of the mortgage debt from the saleable value of the property, provided that it happens to be the sole security for the payment of the debt; and secondly, should the testator have obtained by way of loan an advance on his policy of insurance from the office in which his life is insured, and, by a recent Act (30 & 31 Vict. cap. 144), should he have assigned his policy by way of security for a loan, the mortgagee being enabled to sue in his own name for the recovery of the money insured, the executor may in such cases include only the amount he will receive from the office or the mortgagee, after they have retained the sums advanced to the deceased. The executor may, if he please, leave out from the assets to be included in the schedule for probate such debts due to the deceased as may be considered doubtful or desperate, in accordance with the decision upon that point in the case of Moses v. Crafter (4 Car. & Payne, 524). In order to show what may be considered personal estate to be included in the amount sworn to in the affidavit presented to the Registrar of the Court before obtaining the grant, and to ascertain the proper stamp to be impressed on the probate as imposed by the 55 Geo. III., cap. 184, an assumed schedule is here inserted, giving every kind of personal property on which the stamp duty attaches : A SCHEDULE of those personal assets of a deceased person considered liable to stamp duty, and which have to be included in the affidavit of value in obtaining a grant of bate or letters of administration : pro Cash in the house. Money at the bankers. Household goods, furniture, plate, linen, china, pictures, Farming stock and implements of husbandry. deceased was tenant for life. Stock in trade. Goodwill of the business. Book and other debts. Next presentation to a living. Property on the high seas or in transitu. Stocks in the funds of Great Britain. Foreign stocks, funds, and bonds (transforable in this country without the necessity of sending a power of attorney abroad). Colonial securities. Indian securities registered in London, or enfaced in Canal, railway, and other shares, and debentures in Bonds, bills, notes of hand, and other like securities. All dividends and interest, and any apportionment Rents, and apportionment of rents of real estate up to the date of the death. Rents and apportionment of rents of leasehold up to the date of the grant. Leaseholds (less mortgages thereon). Policies of Insurance. Ships and shares of ships. Deceased's share in a partnership business. Proceeds of the sale of real estate contracted to be sold by the deceased in his lifetime though contract not completed. Any personal property over which the deceased has an absolute power of appointment under some other will or instrument. The value of any real estate which, under the trusts of some prior will or other instrument, is directed to be sold, but which may not have been sold or conveyed to the deceased in his lifetime. The present value of any reversionary property (this is not compulsory, and may be omitted at the option of the executor). Heritable bonds in Scotland. The above schedule is believed to contain, under one head or the other, every description of personal property on which the stamp duty attaches, and the total value of such property of the testator is what the executor will have to insert in his affidavit. But, as differences of opinion appear to prevail as to the propriety of including some of these items amongst the assets liable to stamp duty, an explanation is added in support of their liability. The Goodwill of a Business. It has frequently been asserted that the goodwill of a business has no value separate and distinct from the premises in which it is carried on, and that the value of the lease and goodwill go together; this may be so with regard to some kinds of businesses, for instance, a publican's; but, on the other hand, that of a pianoforte maker, depends more upon the name of the maker than the premises, and, consequently, the value of the good D will would be a separate item of itself, apart from the place of business. The fact of a goodwill being capable of valuation, separate and apart from the lease of the premises, was clearly laid down by Lord Romilly in Smith v. Everett (27 Beavan 448). See also "Collyer On Partnership," page 174. Crops on the Land. Williams, in his treatise on the "Law of Executors," remarks that, "the doctrine of emblements extends not only to corn and grain of all kinds, but to everything of an artificial and annual profit that is produced by labour and manurance, as hemp, flax, saffron, and the like; melons of all kinds; hops also, as well as potatoes." In estimating the value of growing crops, the executor should endeavour to ascertain, as near as possible, what the crops are likely to realise after being harvested, as, whether the land belongs to the testator in fee or as life tenant, that which he has sowed he may reap, or should he die before the harvest his executor may reap for him. The next Presentation to a Living. Although the advowson is part of the real estate and not assets liable to be included in the grant for probate, as passing to the heir and not the next of kin, the next presentation to a living when not vacant is an asset which can be sold, and the value thereof should be included in the schedule. A rule for arriving at the value, supposing it is not intended to sell the next presentation, may be stated as follows:Assume the age of a supposed presentee to be twenty-five, value the annual income of the living by the Table No. 1 appended to the Act 16 and 17 Vic., cap. 51, according to that age, and deduct from this the value of the income by Table No. 2 appended to the same Act according to the ages of the incumbent and the same person for the joint continuance of the two lives. For example, presume the income of the |