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judge may make, the witnesses, in all proceedings before the court where their attendance can be had, must be sworn and examined orally in open court. The court may, however, give liberty to the parties to verify their cases in whole or in part by affidavit, subject to the liability of the deponent in every such affidavit to be cross-examined by or on behalf of the opposite party orally in open court. Trials upon affidavit, however, are very rarely permitted except in case of a petition for a dissolution of marriage on the ground of bigamy, where the respondent has been already tried and convicted of the bigamy which is the foundation of the suit. And in cases where the marriage has taken place abroad, and the validity of the marriage is not one of the questions in the suit, the court usually permits such marriage, and the identity of the parties to it, to be proved by affidavit.

In proceedings other than those for a dissolution of marriage, it is lawful for the court, but not obligatory upon it, to direct the truth of any question of fact arising in the suit to be tried before itself, or before any of the judges of the court, by the verdict of a special or a common jury (9). The court may also direct an issue to be tried in any court of law, either before a judge of assize, or at the sittings in London or Middlesex, as is now done by the court of chancery; and the rules of evidence observed in the superior courts of common law at Westminster are applicable to and observed on the trial of all questions of fact in the court.

By Lord Brougham’s Act (14 & 15 Vict. c. 99), and by the Amendment Act (16 & 17 Vict. c. 83), no party to a suit instituted in consequence of adultery, the husband or wife of such party, is a competent

[ * 420 ] witness in the suit; thus excluding the evidence of all parties to a suit for a dissolution of marriage, or for a judicial separation where adultery is charged in the petition. But when a wife became entitled to a dissolution of her marriage on proving her husband's adultery, coupled with either his desertion or his cruelty towards her; and it was clear that the only person who could give satisfactory evidence of such cruelty and of such desertion would in most instances be the wife herself, the 22 & 23 Vict. c. 61, 8. 6, made the husband and wife respectively competent and compellable to give evidence of or relating strictly to such cruelty or desertion, on any petition presented by a wife for a dissolution of her marriage by reason of her husband's adultery, coupled with cruelty or desertion. A previous modification of the above-mentioned acts was also effected by the 43rd sect. of the 20 & 21 Vict. c. 85, by which the court may, if it think fit, order the attendance of the petitioner, and may examine him or her, or permit him or her to be examined or cross-examined on oath upon the hearing of the petition. No such petitioner is, however, bound to answer any questions tending to show that he or she has been guilty of adultery.

There had, however, been for some time past a very strong feeling in the minds of many persons that any restrictions on the competency of persons to give evidence in suits affecting themselves were contrary to justice and public policy, and, accordingly, the legislature in the last session of parliament passed an act doing away with such restrictions and rendering all parties in suits instituted in consequence of adultery, and their husbands or wives, competent





(2) 20 & 21 Vict. c. 85, s. 36.

VOL. II. - 38



to give evidence in relation to such suits (r); so that, for the future, we may anticipate in every suit to be tried in the divorce court, that the

* parties in a contested case will be called in support of their [*421 ]

respective averments, and that, in their absence, the presumption which usually attaches to the absence of a party from the witness-box will apply against them.

The case having been heard from, either before the judge himself, or before the judge with a jury, as may be directed, a decree is pronounced, subject, in

suits for a dissolution and for nullity of marriage, to an appeal Appeal.

to the House of Lords, and in other cases to an appeal to the full court. A new trial or a rehearing may be moved for and granted by the judge ordinary alone, but the rule granting or refusing a new trial is subject to an appeal to the full court.

The costs of the suit are in the absolute discretion of the court, no appeal lying on the question of costs alone.

The court also grants inspection of documents, and is in the habit, in cases where it is necessary to do so, to make orders on the parties to attend either at

the trial or before the registrar of the court, for the purpose of

being identified. There is also a power to tender a bill of exceptions, and to have a special verdict returned, or a verdict subject to a special case, as in the courts of common law, to be argued before the judge ordinary. The court has also power, pursuant to the statute, to issue a commission, or to give orders for the examination of witnesses out of the jurisdiction, or unable by reason of illness or otherwise to attend at the trial.

In suits where the wife is dependent either wholly or mainly upon her husband for support, the court, following the practice adopted by the House of Lords, orders the husband to pay, or to secure to the satisfaction of the registrar of the court, such sum as he may consider necessary to enable her to prosecute or defend the suit, and at the termination of the suit makes such order as to the money so paid or secured as it may think reasonable; but, in practice, this being a matter more between the wife's solicitor and the husband [ * 422 ]

than between the wife * and her husband, it is usual, in cases where

no misconduct has been brought home to the wife's solicitor, to allow him, as against the husband, the costs incurred by the wife, at all events up to such sum as the court has ordered to be secured as above-mentioned. There is also a power to permit suits to be instituted and defended in forma pauperis, and to dispose, upon summons, of any matters of minor importance arising in the course of the suit.

The decrees and orders of the court are enforceable in the same Enforcing decrees and manner as judgments or decrees of the court of chancery, viz., by orders.

attachment, or by sequestration. (587)

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(r) 32 & 33 Vict. c. 68, s. 3.

(587) Formerly the practice of granting legislative divorces in proper cases prevailed to & considerable extent in the United States; but judicial ones are more favored at present, and the former are forbidden in recent revisions of several of the State constitutions. See Teft v. Teft, 3 Mich. 67; Head v. Head, 2 Kelly (Ga.), 191 ; Bryson v. Bryson, 17 Miss. 590; Bing. ham v. Miller, 17 Ohio, 445. In some of the States, the suit for divorce is to be brought before a court of common law; in others, before a court of equity; in others, before a court which has both equity and common-law jurisdiction; and, in all, the suit is more or less * CHAPTER XV.

[ * 423]


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By the 20 & 21 Vict. c. 77, called “ The Court of Probate Act, 1857,” all the jurisdiction and authority of the ecclesiastical courts, in respect of the grant

ing and revocation of probates of wills and letters of adminis

tration in England, was taken from such courts and granted to a court holding its sittings in London, and called the court of probate. This court is presided over by a judge who ranks with the judges of the superior courts of common law, and as Judge Ordinary of the Divorce Court has precedence in his Court next after the Lord Chief Baron, and who is assisted in his duties by four registrars and a secretary, in addition to the other usual officers of a court. The court exercises jurisdiction over the granting of probates and letters of administration, and determines all questions relating to matters in testamentary cases, and its business usually consists in pronouncing upon the validity of wills and codicils, and deciding, in cases of intestacy, upon the person to whom the administration of the deceased's estate is to be committed. Formerly this function was exercised by different courts throughout the country, those of the several dioceses having power to grant probate and administration when a person died having goods within their jurisdiction. But questions of difficulty and expense frequently arose as to which of the courts had the right of making such grant and receiving the fees payable thereon, the right depending mainly upon the question of whether the deceased person had personal estate, or * what was then called bona notabilia within the jurisdiction of the particular court. Now, however, such

[ * 424 ] questions no longer arise, for the court at Westminster, by means of its differ ent registries in London and throughout the country, has jurisdiction to grant probate and letters of administration in all cases where a person has died leaving personal estate in this country. By the institution of this court a state of things, also, which was anomalous and discreditable to the legal procedure of the country had been rectified, for the probate of a will, as granted by the ecclesiastical court, was only binding upon the personal estate of the testator, and was not conclusive in regard to his real estate; and this, although the testator might by such will have appointed an executor, and formally have devised his lands to the person for whose benefit he intended them. And, accordingly, it was not an uncommon occurrence for the same will disposing of the real and the personal estate of the testator, to be held a valid will when contested in the ecclesiastical courts on the question of the administration of the personalty, and to be declared an invalid will when contested in an action of ejectment brought by the heir-at-law for the recovery of the lands so devised by the testator from the person to whom he had devised them. Now, however, modified, as to the procedure, by the peculiar nature of the subject, and by the adoption of rules of practice from the ecclesiastical courts of England. 2 Bisli. Mar. & Div., $ 254. Divorce is allowed for several causes, as adultery, cruelty, willful desertion for a specified period, habitual drunkenness, etc., as regulated by statute in the sev specific information, the statutes of the particular State should be consulted. See Vol. 1, 358, note 148.





Proof of wills.

where proceedings are taken to dispute the validity of a will, or for the purpose of proving it in solemn form of law, where the will affects the real estate, the heir-at-law, devisees, and other persons having or pretending interest in the real estate affected by the will, are made parties to the suit, and are bound by the decree pronounced in it.

A will may be proved by the executor, if an executor is appointed in the will, at his option, either in common form-in which case the probate may at

any time afterwards be called in and disputed-or in solemn

form, when he is compelled to cite the next-of-kin, and other persons adversely affected by the will, after which it cannot at any future time [ * 425 ]

be disputed by the persons so cited, or * by persons claiming under

or through them. Similarly, it may be proved by the residuary legatee, in case no executor is appointed, and if no residuary legatee is named, then by the next-of-kin or by a legatee.

Where an executor is appointed in a will, and he declines or takes no step towards proving it, he may be cited by the persons interested under the will to show cause why he should not take probate: and if, upon such citation, he either renounces probate, or does not appear, then his right in respect of his executorship entirely ceases, and the representation of the testator, or the administration of his effects, will go in such manner as if he had been appointed executor (a).

In speaking of a will, the term “will ” must be taken to include one or more codicils, because a man's will may consist not only of that portion of his testamentary papers which is commonly called his will, but of any number of testamentary papers, not inconsistent with each other, from the whole of which, taken together, his intentions are to be drawn; and all that is necessary to entitle papers to probate as a will, apart from the question of due execution, is that they should have been written in the lifetime of the deceased, and contain his final wishes as to the disposition of his estate after his death. But in citing an executor to take probate of a will, there being a will and one or more codicils, it is competent to a party to contest the validity of one or more of the codicils, without necessarily contesting the validity of the whole of the will. And the same rule applies to cases where no executor is appointed, but where the residuary legatee, or some other person, is applying for a grant of administration with the will annexed.

In cases of intestacy, the court has the power, formerly vested in the ecclesiastical courts, of granting administration to the widow or next-of-kin of the deceased, or to both; having in this case an absolute discretion,

* which, however, is usually exercised in favour of the Administrations. [ * 426 ]

widow. In the case of the death of a married woman, her husband is entitled to the administration of her effects, unless she has duly made a will by virtue of a power or otherwise during the coverture, which the husband is not in a position to dispute, and provided she was not protected by an order under the Divorce Act, or by a decree for a judicial separation, or by a divorce a mensa et thoro; in either of which events her next-of-kin would be entitled to take out administration in preference to the husband. If the intestate leaves no wife, administration is granted to the next-of-kin, according


(a) 21 & 22 Vict. c. 95, s. 16, and 20 & 21 Vict, c. 77, s. 79.



to their degree, or to the persons entitled in distribution, or, in default of any such person taking out administration, then to a creditor.

The business of the court is divided into the common form business and contentious business: the common form business, including the granting of proCommon form

bates and administrations, where there is no contention as to the

right thereto or when the right having been contested has been determined, and the contentious business relating to such matters as come into litigation. The common form business, which is usually brought before the court by motion and affidavit, in relation to the granting of probates, dis

poses of such questions as how much of a man's testamentary Probate.

papers are entitled to probate,--as to whether, upon an admitted state of facts, the execution is of such a nature as to be in conformity with the requirements of the Wills Act.-as to whether obliterations, alterations, interlineations, or erasures appearing upon the face of a will are entitled to probate -in reference to contingent or conditional wills, as to whether or not the contingency or the condition referred to in the will has happened,—with a view to the proof of the contents of a lost will, whether the will was lost under such circumstances as to give rise to the presumption that it was revoked, -as to whether or not * the will of a married woman, made during coverture,

[ * 427] is entitled to probate,-and, of many other points too numerous to specify, upon which questions of law or practice may arise for the determina

tion of the court. With regard, also, to the testamentary papers Incorporation of

of the deceased, a question very often arises as to the incorporation of documents, and this happens in cases where a man in making his will refers to some other document then in existence, and directs his property to be distributed, either wholly or partially, according to the terms of that document. This mostly happens in cases where a testator refers to his marriage settlements, or to former wills, or lists of plate or valuables which he wishes to be distributed in a particular way when the instrument or document so referred to becomes part of the will; but the reference in the will to incorporate such paper with it must be clear and distinct, so as to preclude the possibility of any mistake in the identity of the paper; and the paper itself must be one already in existence, though it need not be in the possession or even under the control of the deceased.

With regard to the obliterations, alterations, interlineations, and erasures, a will may be entitled to probate with or without them, according to whether or

not they existed on the will at the time of the execution; and the Obliterations, &c.

presumption of law, in the event of there being no evidence one way or the other, will be that the will at the time of its execution by the testator did not contain such obliterations, alterations, interlineations, or erasures.

With regard to the will of a married woman, such will may be made by virtue of a power reserved to her, or of a marriage settlement, or with her husWills of married

band's assent, or it may be made by her to carry her separate

estate; and the court, in determining whether or not such will is entitled to probate, will not go minutely into the question, but will only require to be satisfied that the testatrix had a power reserved to her, or was * entitled to separate estate, and will, if so satisfied, grant probate to her executor, leaving it to the court of chancery, as the court of con

[ * 428 ]



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