either republishing, or altering and re-executing his will, as directed by the statute heretofore often mentioned, he may die both testate and intestate, and his personal estate may be disposed of by himself, and his after-purchased real estate by the law, or will descend to his heir at law which circumstance now leads us to shew, as was proposed, how in various cases a man may die both testate and intestate, and thereby part of his estate be disposed of by himself, and the other part by the law.

Those cases will be readily perceived, if we advert to what has been treated on under this and the next preceding head; as under the head of making the will it was shewn that, if the testator by his will gives his heir at law no other estate than the law entitles him to, he will take by descent and not by the will; so, if there are not words in the will sufficient for disinheriting the heir at law, or if there is a defect in executing the will, as in signing or witnessing it, whereby the same may be rendered invalid as to the real estate and, if it be not in writing, but only nuncupative or verbal, which may be sufficient for the testator's goods and chattels. In those cases a man having real and personal estate, and having made his will and died, may be said to die both testate and intestate; intestate as to his real estate, which will descend to his heir at law in such manner as heretofore shewn 4, and testate as to his personal; for here he may have a will sufficient with respect to his goods and chattels. In like manner a man may die both testate and intestate where he has a will duly signed and witnessed, but has thereby disposed only of part of his real and personal estate, and not mentioned the rest, or devised the residue to any one; in which case part of his real estate will descend to his heir at law, and part of his personal be distributed in such manner as was heretofore shewn ; unless it should devolve to the executor under such circumstances as have been mentioned $.

Under this head of revoking the will, it may be perceived $ Page 214.

1 Page 108-117.

r Page 84.

that a man, after having made his will, may die either wholly intestate, or part testate and part intestate; as where he revokes his will; which revocation may arise from a variety of causes, and be either expressed or implied; as if the testator cancels his will by tearing, obliterating, or burning it, which is an express revocation; so where, after having made his will, he marries and has a child; this is held a presumptive revocation; and hereby, as well as by tearing, obliterating, or burning his will, he may die wholly intestate, both as to his real and personal estate. Likewise implied revocations are, where the estate devised is altered after making the will; as in case the testator afterwards conveys the same to another, even though it may be re-conveyed to him, yet the conveying it is an implied revocation of his will, as to the estate conveyed by him. So, if a man possessed of a leasehold estate, and after having devised it surrenders his lease, and takes a new lease of his estate, this is an implied revocation of his will as to this particular, and if he dies before republishing it, he may die both testate and intestate; testate as to that part of his will which is unrevoked, and intestate as to the part revoked; so that one part of his estate may be disposed of by himself, and the other left to the disposition of the law. So it may be in respect to other cases that amount to implied revocations.

There is another kind of intestacy, which may be where a man may have made his will in writing pursuant to what is required by the statute of 29 Car. II. and thereby devised his real and personal estate, but hath not appointed any executor, either expressly, or by words whereby the making of an executor may be implied; and in this case a man may also be said to die both testate and intestate; testate as to his real estate, and intestate as to his personal: yet here the law has no concern with the disposal of either, administration being to be granted with the will annexed, which is to be the administrator's guide in disposing of the personal estate, in like manner as heretofore mentioned t; and as to the real

t Page 2,

estate, an executor, as such, if appointed, has no concern therewith; neither is the appointment of an executor requisite where the will concerns only real estate, and has no concern with goods or chattels, nor ought it in such case to be proved in the spiritual court (12).

CHAPTER IV.

OF PROVING THE WILL.

UNDER this head we shall consider what an executor may do before the will is proved, and the reason why it should be proved. Whether it is prudent for the executor to take upon him the executorship, or to refuse it; the advantage that may accrue by taking upon him the executorship; his right to the surplus. The detriment or loss he may sustain by taking upon him the executorship; the effect of his joining with a co-executor in acquittance for money; in what cases executors shall pay interest for money. Then just take notice of the will, which concerns both real and personal estate, or personal estate only; and where and by whom the probate thereof is to be granted; and proceed to shew how the will may be proved in common form, or form of law, and the end and purpose of proving it either way. For proving it in common form; the power an executor has for compelling the ordinary to grant the probate, and what may obstruct his obtaining the same. Cases

u Cro. Car. 396.

(12) Therefore the probate of a will devising real property is not evidence of the contents of the will, even though the original is proved to be lost; the spiritual court having no power to authenticate such a devise as far as it relates to land. Bull. N. P. 245. Doe v. Calvert, 2 Campb.

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wherein administration must be granted with the will an nexed, and the manner of thus granting it. The method of proving a will in chancery. - That a will is to be registered if it concern real estate, or certain chattels real in the counties of York and Middlesex; and the manner and form of doing it.- In what court suits must be brought for proctors' fees, and the manner of taxing their bills.

L

Before letters of administration are issued, an administrator can do nothing, yet an executor may do many acts before he proves the will, as heretofore mentioned ; and the reason of this is, that an executor derives his power from the will and not from the probate; but the administrator owes his entirely to the appointment of an ordinary. An executor, before the will be proved, may seize and take into his hands any of the goods of the testator. He may pay debts, receive debts, make acquittances and releases of debts due to the testator, and take releases and acquittances of debts owing by the testator; and if before the will be proved, the day occur for payment upon bond made by or to the testator, payment must be made to or by the executor though no will be proved, upon the like pain of forfeiture as if the will were proved. Also, an executor may, before probate, sell or give away any of the goods or chattels of the testator y. And the executor, for goods of the testator taken from him, or a trespass done upon the lease land, or a distraining or impounding of goods or cattle, may maintain, before the will be proved, actions of distress, or replevin, or detinue; for these actions arise upon the executor's own possession. But before the proving of a will, an executor cannot maintain a suit or action of debt, or the like; and the reason is, for that therein he must shew forth the will, proved under the seal of the ordinary (1). And so it seems

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y Went. Off. Exec. 34, 35.

(1) An executor may commence an action, but he cannot declare before probate, since in order to assert a claim in his representative character, he must produce the copy of the

it must be, if he bring any action for trespass done, or goods taken in the testator's lifetime, so as the testator himself was entitled to the action, and it grows not upon the executor's possession, but upon the executor's own contract for the testator's goods; and if the executor sell cattle or other goods of the testator's before the will be proved, he may for the money payable maintain an action for debt before he hath proved any will; and in this, and the action of trespass, there is no necessity of naming him executor. In general, an executor is a complete executor before probate to all purposes but bringing of actions; so that he may release an action, assent to a legacy, may be sued, may alien, or otherwise intermeddle with the goods of the testator &. For by administering (that is, if one do either pay debts of the testator, or receive debts, or make acquittances for them, or demand the testator's debts as executor, which are acts of administering, as will be more fully shewn hereafter), the executor hath accepted and taken upon him the whole administration before the probate; and is thereby entitled to receive the debts due to the testator; and all payments made to him are good, and shall not be defeated, although he should die and never prove the willc.

The executor may, in convenient time after the testator's death, enter into the house descended to the heir, for the removing and taking away the goods, so as the door be open, or at least the key be in the door; and this seems to be understood of the door of each room. For, although the door

z Went. Off. Exec. 36. 1 Salk. 301.

b Went. 41.

1 Salk. 306, 307.

will certified under the seal of the spiritual court, or, as it is sometimes styled, the letters testamentary; but when produced they will have relation to the time of suing out the writ. Toller on Executors, 47. So before probate he may file a bill in equity, and it has been said to be sufficient if probate be obtained at any time before the hearing. Patten v. Panton, cited 3 Bac. Abr. 53.