ECCLESIASTICAL COURTS.
LETTER IL INTERFERENCE WITH WILLS.
TO THE EDITOR OF THE SPECTATOR.
London, 12th January 1848.
Sin—The injurious working of the system which allows spiritual persons to usurp testamentary jurisdiction is fearfully evinced, almost daily. As though it were not evil enough that they should interfere at all in such matters, they have contrived so to intermeddle as to render their functions not less odious in themselves than baneful to the public. The principle upon which they originally based their testamentary powers was, that the priest having had charge of a man's soul daring his life, he ought also to have the settlement of the estate at his death. So many souls are given over to the priest as his " cure ": no sooner, therefore, has death thinned the ranks, than in steps the clerical functionary, with his claim to grant probate of the deceased's will, or administration of his ef- fects if he died intestate. It is thus the interest of Archbishops, Bishops, Arch- deacons, Deans, Rectors, or Vicars, or with whom else rests the testamentary jurisdiction, each one to look after the issuing of this grant of probate. But as they all had not charge of the soul, they have arranged that the right of making this grant shall depend upon the deceased having had property in a diocese et any, ecclesiastical boundary, other than what he left in the local jurisdictiez within which he died. Look, for instance, at the Peculiar belonging to the Dean and Chapter at Westminster. This Court commences its powers in a parish op. polite the Houses of Parliament; it leaves all the parishes that intervene between St. Margaret's, and takes flight to the parish of St. Martin-le-Grand, in.which the Post-office: this it leaves, and then leaps to Malden, forty miles distant, is Essex. If a man die opposite the Post-office, the Dean and Chapter Court would claim the right of granting probate: were he, however, to have left 51. personal property in Newgate Street, that being out of the limits of the Dean's Court, would give the Archbishop of Canterbury the right. Take another case. A man dies in Chatham Place, Blackfriars: then probate or administration is granted by the Bishop of London. He left 51. personal property, however, on the other side Blackfriara Bridge: that being in Surrey, is in the diocese of Winchester: it steps the Archbishop of Canterbury, and says, "My authority rides over both Bishops, and therefore from my. Provincial Court probate or administra- tion must issue." This claim is technically known by the designation "bona notabilia." The ruinous effects constantly resulting from this ec- clesiastical intermeddling with the secular affairs of families are scarcely credible. It often happens that executors and administrators are not aware, when they first apply for the legal testamentary instruments, that the de- ceased had property in any other place than the ecclesiastical boundary in which he died. And indeed, these boundaries are so confused—so ill defined—frequently the subject of dispute between ecclesiastics themselves as to who or which of them shall exercise authority in the court—that it is almost impossible to find out to what court application is to be made for a legally correct probate or admi- nistration. If it turn out to have come from a wrong court, every act of the exe- cutor is void. The probate or administration is nothing but waste parchment. In the First Report of the Commissioners on Law of Real Property there are very many illustrations of the serious evils which daily arise from this prerogative of the Archbishop. W. F. Wratislaw, Esq., of Rugby, mentions two cases which oc- curred in one year in his office. One was concerning property five miles from Rugby (in the province of Canterbury): it was a mortgage term for one thousand years for securing 2,0001. The mortgagee removed to Sheffield, (in the province of York,) and there died. His executors proved his will at York, and called in the money which was paid under the York probate. This title was defective: a Canterburyprobate was required: 501. probate-duty was again paid: the repre- sentative of the surviving executor of the mortgagee had to be looked up, and other expenses incurred, amounting in the whole to at least 2001., although there was no doubt of the 2,0001. having been included in the York probate. The other case was also a mortgage for one thousand years upon property seven miles from Rugby, made to a person residing near Northampton, which is in the diocese of Peterborough. This person died: his executors proved his will at Northampton; assigned the mortgage to the residuary legatee, who called it in; and assigned it to a fresh mortgagee, who afterwards paid it off, and assigned it to a trustee for the proprietor. All the assignments were defective, simply from the want of a Prerogative probate to the first mortgagee. One of the executors, however, was still alive: he removed the will, and proved it in the Prerogative Court: a new stamp-duty was paid, amounting to 1801., although at the time the will was first proved every shilling duty then payable was duly paid. All this occurred twenty years after the death of the original testator. Ilia is the testimony of one among a host of common-law practitioners; whose clients they cannot help out of expensive and vexatious difficulties. Let us look at another clew of witnesses upon this point. Here is the testimony of Mr. John Kitson, Principal Registrar of the Ecclesiastical Court of Norwich. When before the Commissioners, he was asked, "Have any instances occurred in your recollec- tion of probates or administration taken out in the diocese of Norwich having been afterwards called in and pronounced null and void by the Prerogative Court of Canterbury, in consequence of a subsequent discovery of bona notabilia''-"I do not recollect any being made void: we frequently have monitions for the trans.. mission of wills." " Wills deposited, but not proved ?"—" Yes, proved." " Yon have had monitions for the transmission of wills to the Prerogative Court of Can- terbury ?"—" Repeatedly." " And that upon the ground of bona notabilia having been subsequently discovered "—" Yes. Well may the Prerogative Court of Canterbury keep up this eagle-eyed vigilance over other Diocesan Courts; it is from this prerogative that the Archbishop derives his chief income and his officers their principal subsistence. In the Ecclesiastical Commissioners' Report of 1830, "the enrolments arising from the Registrarship of the Prerogative Court" in three years are stated at 37,4041. 70. 3d. The Deputy Registrar was asked, "Are the Principal Registrars competent? do they understand the nature of the business ? "—" No: they are gentlemen of high respectability, but it is impossible they can know anything of the business of the office: they now and then come and see how everything looks in the office." Nor is this all: the wills deposited in the Prerogative Office are kept there as private property! "Supposing the Principal Registrars were to die, the lease of the premises is made out to their executors and assigns ? "—" Yes." " Then the wills of the province of Canterbury would come into the possession of the executors and assigns of the Registrars? —" Yes." "Has there never been a public office, belonging to the province of Canterbury, in which wills have been kept; or have they always been kept in a
house the private property of the Registrar? So far as we know and believe, it has always been the private property of the Registrars."
This prerogative of " bona notabilia" extends to persons dying abroad. A mer- chant resident in India and dying there, having funds in England, would subject his executors and friends to all the expense, delay, inconvenience, and probable lass, of taking out probate in the Prerogative Court of Canterbury. The same principle applies to persons dying in any one of our Colonies—in Ireland, and in
Scotland. And, to augment the evil, the Archbishop of York has a prerogative of a similar character. " Where there is personal property in both provinces," say the Commissioners, " there mast always be two probates or grants of administration." How does this self-created system, which tame submission only on the part of an injured people has established into customary law, practically work? Let Mr. William Ward, the Deputy Registrar of the Chester Court, prove. The Commissioners held up a book of instructions circulated by the direc- tion of the Chancellor of the Diocese of Chester; this is one of its orders—" Re- quisitions from the Prerogative Court of Canterbury, or elsewhere, are not on any account to be executed, until an authentic certificate under the official seal of the Chancellor, of the due execution thereof, be previously obtained from Chester;
and if the deceased died possessed of personal effects in that diocese, his will is in
the first place to be proved or administration taken out at Chester." Mark the effect of this arrangement. There must be two probates or administrations if there be personal property in the two provinces: if only in that of Canterbury, the Chester people will not move until permitted so to do from the Chancellor at Chester! The Commissioners therefore ask, " Were you not aware that an im-
mense loss might in some cases arise from this refusal to execute those requisi- tions, from the fluctuating state of the funds? "—" All I can say is, that I do not think it justifiable at all. The Commissioners then put this stinging question, " Are not the proceedings of all courts for the benefit of the public! —" No doubt " is the reply.
Then, why do not the public awake to their benefit, and demand the immediate and entire redress of this and other equally monstrous acts of clerical injustice?
That can be done in no other way than by uprooting the essentially vicions_p_rin- ciple of usurpation upon which the whole system of proving wills is based. What parent, who values the non-spoliation of his wife and children after his death, but will feel bound to unite in an effort to save them from the possibility of being in- jured when their natural protector shall lie low in the dust? A. E. C.
Previous page
