dispute (if there be any) respecting the right to such letters of administration, he forfeits £100, and £10 per cent. on the duty.

When a party applies for letters of administration, he must swear that, as far as he knows and believes, the deceased made no will, and that he will truly administer the personal property of the intestate, and make a true and perfect inventory of all his goods and credits, and exhibit the same into the registry of the spiritual court at the time assigned him; and render a just account of his administration when lawfully required. He must, also, pursuant to the stats. 21 Hen. VIII. c. 5, and 22 and 23 Cha. II. c. 10, enter into a bond, with sureties, to the satisfaction of the ordinary, for duly administering the intestate's effects; and should he neglect the requisitions of the bond, he may, with the permission of the ordinary, be sued by any of the creditors, or next of kin to the deceased.

3. The Functions and Duties applicable to both Executors and Administrators.

The general rules of law which prescribe the duties of an executor and administrator are very similar in their application; except, first, that the executor being appointed by will is bound to perform the trusts thereof, which an administrator is not, unless where the will is annexed to his admi

nistration, and then he differs still less from an executor; and, secondly, that, as an executor derives all his title from the will, and, as his interest is completely vested at the instant of the testator's death, as a consequence, he is entitled to do several things before he proves the will, but that an administrator can do nothing till letters of administration are granted him; for the former derives his power from the will, and not from the probate; the latter owes his entirely to the appointment of the ordinary, and therefore requires the sanction of the Spiritual Court to give his acts validity.

The first thing necessary to be done by an executor or administrator, is to bury the deceased in a manner suitable to his rank in life, and the estate which he has left behind him. In strictness, no funeral expenses are allowed against creditors, beyond £5; but where there are assets, the allowance is according to the station of the deceased.

The next duty, after having obtained a sufficient knowledge of the testator's affairs, is to prove the will, or swear to the value of his personal effects. He moreover swears, that the writing exhibited contains, to the best of his knowledge and belief, the last will and testament of the deceased; and that he will truly perform the same, by paying first the debts, and then the legacies, as far as the goods, chattels, and credits, will extend, and the

law charge him; and that he will make inventory, and render a just account when required, &c. The full amount of the testator's property must, by the 38th section of the stat. 55 Geo. III. c. 184, be sworn to, without deducting, as has been before said, the debts which he may owe; and for this purpose, it is necessary that an estimate of the deceased's property, whether former securities, or whatever other description, should be as near the exact value as possible; because, if, in the course of the administration, the assets should produce more or less than the sum sworn to, the total of the residuary account to be passed at the stampoffice will amount to a higher or less sum; in which case it will be necessary to apply for an alteration on the stamps, pursuant to the directions of the statute.

This is called proving the will, and is generally effected by application to a proctor. The probate may be sued out immediately after the decease of the testator, or at any time optional to the executor or administrator, within the space of six calendar months from the testator's decease. And to prevent delay in the administration of the testator's effects, it is provided by the stat. 55 Geo III. c. 184, s. 37, if any person takes possession of, or administers the personal estate and effects of the deceased, without obtaining probate of the will, or letters of administration, within six

calendar months after the decease, or within two months after the determination of any suit or dispute respecting the will, which shall not be ended within four calendar months after such decease, he forfeits £100, and £10 per cent. on the stampduty payable on the probate or administration.

The proof may be either in the common or the solemn form: the first method consists in presenting the will before the ordinary, or his deputy, on the oath of the executor, and on proof of the handwriting of the testator, by the evidence of two persons acquainted with its character from having seen him write. This is the common form of proving of a will. But as the validity of a will so proved may, at any time within the space of thirty years, be disputed, it becomes necessary, if it is apprehended that such dispute is likely to arise, to have the will proved and established in the solemn way or form in which case the executor must cite, the person who would be interested under an intestacy to be present at the proof thereof. Two witnesses must then be sworn and examined on interrogatories administered by the adverse party, who must be able at least to depose that the testator declared the writing produced to be his last will and testament; unless where the will was written by the testator himself, and then the evidence of one witness, who can attest the fact of the identity of the will, will

suffice. And then, if no adverse proceedings are instituted within the term limited for appeals, the will is liable to no future controversy. 3 Bac. Abr. 40; 4 Burn. Ecc. Law, 207; 2 Bla. Comm. Notes to Wms's edition.

Where executors reside at a considerable distance from the court in which the will should be proved, and they are unable to attend at such court, they may, by sending to a proctor the name and description of the testator, the place of his residence, the names of the executors, and those of two clergymen, be sworn by commission. The commission is directed to the two clergymen for this purpose, and when executed, and returned to the proctor, with the original will, the probate will be sent down to them.

The probate may be applied for either to the Prerogative Court of the Archbishop of Canterbury, or of York, or of any bishop, according the nature of the case. But as a probate granted under the seal of the Prerogative Court of the Archbishop of Canterbury has the effect of extending to the recovery of property wherever situate in England, it is preferable to obtain it in that court probates granted in the other courts being limited to the property in the particular diocese. In general, probates can only be granted in the court of the ordinary or metropolitan; where, however, courts-baron have exercised this privi