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in town) must also be left to be examined in the examiner's office; which done, and publication passed, the cause is at an end, an order or rules being first obtained for publication: and the defendant, who is the heir at law, and examines no witnesses touching the validity of the will, may give notice of motion for the plaintiff to pay him his costs to be taxed by a master, which the court usually orders d. This is what is usually meant by proving a will in chancery, which it might be advisable to do while the witnesses to the will are living; for in this, as well as in other cases where a bill may be filed for perpetuating the testimony of witnesses, it may be that a man's antagonist only waits till the death of some of them to begin his suit, when he may have a more favourable opportunity.

As to registering wills; by several statutes, deeds and wills that affect real estates, and certain chattels real, in the counties of York and Middlesex, are required to be registered; which registering hath no allusion to that in the ecclesiastical courts, but is quite a distinct thing; and it being a matter with which many may be unacquainted, we shall here mention the several statutes by which the same is ordained, and make some observations with respect to effectuating a complete registry.

By the statute 2 & 3 Ann. c. 4. it is enacted, That a memorial of all wills and devises in writing, whereby any honours, manors, lands, tenements, and hereditaments, within the West-Riding of the county of York, may be any way affected in law or equity, may, at the election of the party or parties concerned, be registered in such a manner as by the said act is directed: and every devise by will of the manors, lands, tenements, or hereditaments, or any part thereof, contained in any memorial so registered as aforesaid, that shall be made and published after the registering of such memorial, shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration; unless a memorial of such will be registered as afore

d 2 Harrison's Cha. Prac. 38.

said. That every such will or probate of the same, of which such memorial is to be registered, shall be produced to the register at the time of entering such memorial, and oath made that the memorial was duly signed and sealed; and the register shall indorse a certificate on such will or probate thereof, and mention the day, hour, and time on which such memorial is entered, expressing also in what book, page, and number the same is entered; and the register shall sign the certificate so indorsed; which shall be allowed as evidence of such registries in all courts of record. And a memorial of such wills as shall be made or published in London, or in any other place not within forty miles of the West-Riding, which may affect lands in the West-Riding, shall be registered, in case of an affidavit (wherein one of the witnesses to the memorial of such will shall swear, that he saw the memorial signed and sealed, before any one of the judges at Westminster, or a master in chancery) be brought with the memorial to the register; which affidavit shall be a sufficient authority to the register to give a certificate of the registering such memorial; and the certificate signed by the register shall be evidence of the registry.That memorials of wills registered within six months after the death of the devisor dying within England, Wales, and Berwick, or within three years after the death of every devisor dying upon or beyond the seas, shall be effectual. And in case the persons interested in the lands devised by reason of the contesting such will, or other inevitable difficulty, without their wilful neglect, shall be disabled to exhibit a memorial within the times limited; in such case the registry of the memorial within six months after their attainment of such will, or a probate thereof, or removal of the impediment, shall be sufficient.

By statute 6 Ann. c. 25. it is enacted, That a memorial and registracy shall be made of all wills which affect any lands or tenements in the East-Riding of the county of York. And by statute 7 Ann. c. 20. a memorial and registry is to be made of all wills whereby lands are affected in the county of Middlesex, in like manner as in the West and

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East Ridings of Yorkshire. But neither of those three statutes extends to copyhold estates, or to any leases at a rack-rent, or to any leases not exceeding twenty-one years, where the actual possession goeth along with the lease; and in the statute of 7 Ann. there is a reservation as to the chambers in Serjeant's-inn, the inns of court, and the inns of chancery, to which this act doth not extend. By statute 8 Geo. II. c. 6. a registry is to be of all wills affecting lands in the North-Riding of the county of York. But this statute does not extend to copyhold estates, or to such leases as just before mentioned.

To effectuate a complete registry, it is necessary that the memorial be on vellum or parchment, which need not be stamped, as neither of the acts require it. The memorial is to contain, 1. The name of the testator and his addition, viz. the place of his abode and occupation. 2. The date of the will. 3. The premises, or what is mentioned in the will relative to the real estate or chattels real devised thereby, which are to be described verbatim as in the will. 4. The names and additions of the witnesses, viz. their several occupations and places of abode. The memorial must be

signed and sealed by one of the devisees, his guardians, or trustees; and then attested by two witnesses who saw the same signed and sealed: afterwards one of the two witnesses goes with the memorial and the will, or the probate, or an office-copy thereof (either of which is sufficient), to the register-office, (which, for the West-Riding of the county of York, is at Wakefield; for the East-Riding, at Beverley; for the North Riding, at York; and for the county of Middlesex, in Bell-yard, Carey-street, London); and at the office where the same is to be registered makes an oath (unless an affidavit hath been made before a judge or master in chancery, as before mentioned) that he saw the memorial signed and sealed; and the oath being so made, he leaves the memorial, together with the will, probate, or office-copy, on which the certificate of the registry is indorsed, as di

Of late required to be on a 10s. stamp.

rected by the statute, and that frequently within four or five days after; when the will, probate, or office-copy, is fetched, and the register paid his fee for registering. The form of the memorial is as follows:

A MEMORIAL to be registered pursuant to an act of parliament made for registering deeds, &c. within the [West, East, or North-Riding of the county of York, or the county of Middlesex, as may be the case.]

The probate of the last will and testament of A B of -, bearing date the day of, and concerning All [here pursue the words of the will] which said will is witnessed by C D of ; E F of ; and G H of And this memorial is required to be registered pursuant to the above mentioned act, by me J K one of the devisees in the said will mentioned: As wITNESS my hand

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For registering deeds the form of a memorial varies very little from that used for a will: but we shall omit mentioning any more here with respect to deeds, as being foreign to this subject, and proceed with what was proposed in respect to proctors, and taxing their bills, and therewith conclude this chapter.

In divers cases it hath been held, that proctor's fees are not suable for in the ecclesiastical court, but may be sued for in the temporal courts; from whence a prohibition may be had to stop proceeding in the ecclesiastical court, if suit should be there commenced; upon proper application, as by petition from any suitor, or person that sues, in the ecclesiastical court, the judge thereof has undoubted right to tax the proctor's bill. The method of doing it, as usually practised, is, for the judge to refer it to the register, direct

ing the respective parties to attend him if they think fit, one to make his exceptions, and the other to justify the several articles or items of his bill; and the register to make his report to the judge, who thereupon proceeds to tax the bill. If the register has any doubt, the assistance of the other proctors may be required. The fees alleged to be given to counsel, if denied by the client, as also his demand for any unusual or extraordinary articles which do not appear from the proceedings in the cause, must be cleared up to the satisfaction of the judge, either by the proctor's oath (if he voluntarily offers it, and there be no affidavit to the contrary), or by receipts and vouchers from those to whom the money is alleged to be paid, or by producing letters and orders from his client f.

CHAPTER V.

OF EXECUTORS, AND SUCH ADMINISTRATORS WHO HAVE THE ADMINISTRATION GRANTED WITH THE WILL ANNEXED.

THE office and duty of those administrators who have the administration granted with the will annexed, being, as hath been seen in several parts of this work, very little different from that of executors, we shall now take a view of both, as with respect to their power and what they are interested in; their getting in the deceased's effects; and what shall be assets in their hands to make them chargeable; their office and duty in paying debts and legacies. And as to debts, we shall here take notice of such as are barred by the statute of limitations, and of some that are to be paid with interest; and then of legacies; and when the same are to be paid; and what interest shall be allowed thereon. Likewise what executors and administrators are to observe before they pay legacies; and with respect to paying infants and married

f 4 Burn's Eccles. Law, 233.

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