Chambers's Journal of Popular Literature, Science, and Art, fifth series, no. 123, vol. III, May 8, 1886

Sweet is a legacy, and passing sweet The unexpected death of some old lady Or gentleman of seventy years complete, Who’ve made ‘us youth’ wait too, too long already.

Up to a little more than a quarter of a century ago, the business connected with the proof and custody of wills and the granting of administration in England, was conducted by officers appointed by the archbishops and bishops of the Established Church. In every city which was the seat of a bishop’s see, a court existed, called the Diocesan Court, presided over nominally by the archbishop or bishop, but really by a proctor or barrister, who was the representative or ‘official principal’ of the ecclesiastical dignitary; with a limited number of proctors—that is, ecclesiastical lawyers—who possessed the exclusive privilege of proving wills, and whose posts were very lucrative and much coveted. Besides these Diocesan Courts, a multitude of smaller courts were scattered up and down the country, variously called Archidiaconal, Prebendal, Peculiar, or Manorial Courts, all having the power of making grants of probate or administration in their respective localities, and whose operations frequently resulted in confusion, uncertainty, and needless expense. An investigation into the origin of these small courts discloses in almost all cases curious and interesting features of those times when the authority of the Church penetrated deeply into every portion of society, and into nearly every transaction of life.

All these courts, large and small, were swept away in 1857. After several abortive attempts by successive governments, and in the teeth of great opposition from the interests affected, a measure was carried through parliament, mainly by the energy of Lord Westbury, abolishing the entire system, and creating a court new to English jurisprudence, the Court of Probate. The antique fabric embracing the Prerogative, Diocesan, and Peculiar Courts, with their vicars-general, ordinaries, advocates, surrogates, and apparitors, vanished like a dream before this drastic ordinance. The exclusive privileges of the proctors were put an end to, and all kinds of testamentary business thrown open to the legal profession. It was a rather costly process. Large compensations had to be paid to the superseded functionaries, as is not unusual in such cases; but the extinction of an effete system, and the substitution of a tribunal and a procedure adequate to the requirements of the times, were imperatively called for.

The Court of Probate thus constituted is not only a court for hearing and determining causes connected with contested wills and disputes among next of kin as to the right to property, but possesses also effective administrative machinery for the granting of probate and letters of administration. A principal Registry at Somerset House in London, and thirty-nine District Registries distributed over England and Wales, are attached to the court, and from these registries the grants of probate and administration with which most people are familiar issue.

Did the reader ever prove a will? The phrase has a rather formidable sound, but the proceeding is a sufficiently tame and prosaic affair. A will is ordinarily ‘proved’ in the following manner: The executor named in the will takes it to a solicitor, and furnishes him with particulars of the name, residence, and date of death of the testator; his (the executor’s) own name, residence, business, and relationship to the deceased; with an account of the nature and value of the property. This information is embodied in two affidavits—printed forms with blanks left for the details—which the executor signs, and is sworn to. The will and affidavits are then lodged by the solicitor either in the principal probate registry in London or in one of the district registries, according to the locality in which the testator resided. The documents being in proper order, a form on parchment is filled up in the probate registry, reciting the particulars contained in the affidavits; and to this form is attached a copy of the will, likewise written on parchment. The two together constitute ‘the probate;’ and when this is signed by the registrar and sealed with the seal of the court, the will is said to be ‘proved.’ The original will is forthwith enrolled and indexed in the books of the registry, where it can be perused by any person on payment of a fee of one shilling.

In proving a will, the executor may now either employ a solicitor to prepare the affidavits and take all trouble off his hands, as mentioned above, or he may apply personally at the registry for probate. Facilities for so doing are provided by law, and the grant is obtained at a lower charge than would have to be paid if the services of a professional man were engaged. The _modus operandi_ is as follows: The executor himself lodges the will in the probate registry, and furnishes to the officers there the particulars already enumerated as to the testator, himself, and the property. The necessary affidavits are prepared in the registry, and there signed and sworn to by the executor, who must at the same time pay the registry charges and the probate duty. In case the attestation clause to the will is wanting, or is not in the form required by law—circumstances which frequently occur—a further affidavit is prepared; and one of the witnesses to the signing of the will must attend at the registry and be sworn to such affidavit. In a few days afterwards, the probate of the will is issued to the executor, who can then proceed to deal with the property.

When a deceased person has made no will, but has left money, furniture, shares, or other property not being land or houses, the law steps in, and in effect makes a will for him, by dividing such property amongst his nearest kindred in certain proportions, which are pretty generally known. The instrument authorising a particular person to make the division is called Letters of Administration. If the deceased has left a widow, she is the person entitled to administer; if no widow, then the children; and if no children, then the relative nearest in blood. The widow or relative applying for administration attends at the probate registry in the same way and furnishes the same particulars as an executor who applies for probate of a will, with this addition, that the applicant for administration must enter into bond, and provide two persons of full age, who are willing to become his or her sureties for the faithful distribution of the property. Whether the estate of a deceased person be large or small in amount, the executor or administrator has the option of applying personally at a probate registry for the grant, and in every case by so doing he effects a considerable saving of expense.

The fiscal legislation of the last few years has been very favourable and indulgent to persons administering small estates. At the present time, if a man dies without a will leaving personal property not exceeding a hundred pounds, his widow or children can apply to the probate registry of the district—or if residing more than three miles from such a registry, to the registrar of the County Court of the district—for letters of administration; and the grant will cost only from five to thirteen shillings, according to the value of the property. The children of a widow are entitled to the same privilege.

Again, when a man or woman dies a little better off, either with or without a will, if the whole personal estate does not exceed three hundred pounds, application can be made to the probate registry of the district—or if there be no registry near, to the Inland Revenue office of the nearest town—for a grant of probate or administration. All the necessary papers will be prepared at one or other of these offices; and the grant will be issued on payment of thirty shillings for duty and fifteen shillings for fees. In case the property does not exceed one hundred pounds, on payment of fifteen shillings for fees only. In none of these instances will the property be liable to legacy or other additional duty. The deceased’s debts, however, are not allowed to be deducted in order to bring the property under these amounts, and the privilege is restricted to the cases of persons who have died since the 1st of June 1881. Those who remember how costly was the process of proving a will or obtaining administration in the old ecclesiastical courts, however small the property might be, and those who more recently have had to pay their solicitor’s bill for the same services, will be aware that the substitution of this low tariff is a boon of a substantial character to all interested in the transfer of small estates at death.

While recent legislation has been thus favourable to the poorer classes, and has lessened the expense of obtaining grants in all cases where application is made in person at the probate registry, it has also introduced a much needed reform in the mode of levying the probate duty. The debts owing by any person at death can now be deducted from the amount of the personal property, leaving probate duty to be paid on the remainder only. Formerly, duty was required to be paid on the gross amount of the personal assets without any deduction whatever for debts. It is true that after debts were actually paid, application might be made to the Inland Revenue authorities for a return of the duty or a portion of the duty in respect of them; but difficulty and delay were sometimes experienced in obtaining such returns of duty, and frequent hardships were inflicted. Thus, where the property of a deceased person was nominally under a large amount, and the debts were almost as large, there was obviously no fund out of which probate duty could be paid. The executor was consequently out of pocket, often for a considerable time, and a disinclination to undertake such responsibilities was the natural result.

IN SCOTLAND.

The Scottish law applicable to wills has had an ecclesiastical history as well as that of England. The clergy were permitted to exercise jurisdiction in regard to divorce and succession because they were supposed to be ‘just persons,’ as also because they knew the art of writing better than most other ancient judges. Modern probate law does not differ materially in the two ends of the island, except in nomenclature. The chief distinction is that in Scotland a will does not require any ‘probate’ or proving; it proves itself, if it be signed before witnesses; and if it be holograph—that is, in the handwriting of the testator—its authenticity or validity is assumed, so long as not impugned. The Scottish analogue of English probate is obtaining confirmation of the executor. If the executor be named in the will, he takes it to a lawyer: the lawyer makes up an inventory of the estate of the deceased. This inventory is stamped at a revenue office by a stamp corresponding in cost to the amount of the estate. The stamped inventory, after being sworn to before a justice of the peace, is presented to the sheriff-clerk of the county in which the deceased had his ordinary domicile. The sheriff-clerk, in the interests of the revenue, satisfies himself that the stamp is correct as to pecuniary amount, and then grants confirmation under the seal of the court. That confirmation is equivalent to a judicial warrant to collect every debt and realise every asset specified in the inventory. If there be no will, or no executor named in the will, the sheriff appoints an executor, or executors, according to a recognised order, those equally near in blood, or having an equal interest in the estate, being appointed jointly; a proceeding which corresponds to the granting of letters of administration by the English Probate Court.

Scotland, of course, as well as England, enjoys the benefit of the statutory provisions applicable to estates under three hundred pounds. The persons entitled to succeed, or one of them, can do all that is necessary to transfer the estate from the dead to the living without the intervention of a lawyer or the burden of his bill of costs. He can go to the sheriff-clerk of the county of the domicile, give the requisite information; and the sheriff-clerk will do all that is necessary towards the giving of confirmation, for a fee that is regulated by the amount of the estate, but which is a merely nominal fee compared with what would fall to be charged by a regular professional man.

The courts of Scotland, as a rule, decline to interfere with the administration of the estates of deceased foreigners, among whom Englishmen are included. It is a necessary condition to a Scotch court confirming an executor or appointing one that the domicile of the deceased shall have been in Scotland. Some of the English courts are guided by much more expansive ideas of their duty, and will take charge of the estate of any man, if it be large enough to promise remuneration to Chancery and Probate practitioners. Within the last few years, the English Court of Chancery extended its long arm to administer the estates of Sir W. Stirling-Maxwell, formerly M.P. for Perthshire; and for years the officials of Chancery directed the management of his large Scotch heritable properties of Keir and Pollok, of course with such copious intelligence as Chancery persons have in regard to every property out of which money can be extracted, but perhaps not at a rate of remuneration quite so moderate as would have sufficed, had the greed of English lawyers and the benevolence of English judges permitted the estates of this eminent patriotic Scotchman to be administered according to the law of his own country. A similar stroke of usurpation was more recently attempted in regard to the estate of Orr Ewing. Less than the hundredth part of that estate, which exceeded in value a quarter of a million, had been left to a young man resident in London. This young man was under twenty-one, and therefore an English ‘infant,’ unable to take care of himself. Some officious person, calling himself a ‘next friend’ of this infant, attempted to have all this large estate transferred from Scotland to the Court of Chancery; and the Court of Chancery very kindly did what it could to gratify the zeal of this ‘next friend’ for the interest of the infant—and perhaps of some lawyers—of not very tender years. But this usurpation was resisted by the Scotch beneficiaries and by the Scotch courts. The House of Lords decided distinctly that the English Courts acted according to their precedents when they made this usurpation of jurisdiction over Scotch estates; and they decided also, but a good deal less distinctly, that the Scotch courts did not exceed their jurisdiction in resisting this usurpation. The courts of law in London and Edinburgh are thus in conflict; and the claims of each have so far obtained the sanction of the supreme tribunal of the country, that hereafter, unless the legislature interfere, no large Scotch succession can be considered safe from the purely benevolent but somewhat expensive supervision of the English Court of Chancery.

AN OCEAN MYSTERY.

A TRUE STORY.

Though it is nearly twenty years ago since the events related below occurred, yet the impression left upon my mind has never faded or lost the vividness of its outlines; and though there is nothing really inexplicable about it, yet the dash of mystery connected with it has always marked it in my memory as an incident of an unusual order.

We were driving on our way northwards from the gloomy and savage neighbourhood of Cape Horn, homeward-bound in Her Majesty’s frigate the dear old _Bruisewater_, now, alas, long since consigned to the shipbreaker. The fact of our being homeward-bound should have made all hearts light and all faces bright among our five hundred souls; but for all that, there was a general air of gloom in the ship, which was not to be accounted for save by one theory only—that of superstition. For things had not gone well with us since we had hoisted our homeward-bound pendant. True, we had sailed out of Valparaiso Bay with the said pendant streaming away, and with all our ‘chummy ships’ playing _Should Auld Acquaintance be forgot?_ as we passed by them; and we had received and returned cheer upon cheer as we made our way to the open sea; while from the midshipmen’s berth had rolled up in a rich volume of sound, every night for more than a week before, the old strain, so well known and so lovingly cherished in Her Majesty’s service:

And when we arrive at Plymouth Docks, The pretty little girls come round in flocks, And one to the other they do say: ‘Oh, here comes Jack with his three years’ pay; For I see he’s homeward-bou-ou-ound, For I see he’s homeward-bound.’

But still, as I say, things had not gone well with us. We had speedily left the warmth of tropical weather, and had gradually found it colder and colder each morning as we made our way down south towards the dreaded Cape of Storms. That was natural, and we were prepared for it; but no sooner had we got to the latitude of the Cape itself, than the wind had shifted, and we had it day after day, night after night, a hard gale right in our teeth. Bitter cold it was too, with tearing storms of snow and hail—heavy thundering seas sweeping us fore and aft, bursting in upon our weather-bow, and covering us with spray, that froze ere it fell upon our decks. Up aloft, everything frozen hard—running rigging as stiff and unmanageable as a steel hawser; blocks jammed with ice and snow; canvas as unyielding as a board; men up aloft for an hour or more trying to take a reef in the fore-topsail, and then so stiffened with cold themselves, as to be unable to come down without assistance: while below, the close, musty, damp, dark ship was the picture of discomfort, her decks, main and lower, always wet, often with an inch or two of ice-cold water washing about on them; soaking clothes hung up all over the place, in the wild hope that they might eventually get dry; ports and scuttles tight shut, to keep out the seas that thundered ceaselessly at them as the ship plunged and wallowed in the angry element; no fires allowed anywhere except at the cook’s galley, which was always fully occupied; and no warmth to be obtained anywhere except in your hammock, and even this, in most cases, what with faulty stowage and leaky decks, was wet through.

Day after day, night after night, this state of things kept on, until there gradually crept in among the men—started, no doubt, by the older hands, always and deeply imbued with the spirit of superstition—a sort of dim suspicion that the ship was under a ban—bewitched, in fact; that, as they said, there was a Jonah aboard; and until he went overboard, we should never weather the dreaded Cape, but were doomed to thrash continually to windward, never gaining an inch on our way. Strange as it may seem, there were many, very many, among our blue-jackets who held this belief firmly, and expressed it openly. We, of course, in the midshipmen’s berth, careless and light-hearted from our extreme youth, laughed at the solemn tones of the old quartermasters, who employed their hours of midnight watch on deck in narrating to us similar instances of vessels which had been thus doomed to struggle with the storm until some unknown criminal had either confessed his crime, or had voluntarily paid the penalty of it. But, as the bad weather continued, and the ship seemed quite unable to advance upon her homeward track, some of us, too, began to allow our minds to be influenced to a certain degree by the mysterious language and ominous hints of these men, so much our elders in years, and our superiors in practical experience.

Matters had got to this pitch, and no change appeared about to take place in the aspect of the weather or the direction of the wind, when one wild and wretched forenoon at seven bells (eleven-thirty) the men were piped to muster on the main-deck for that one drop of comfort which they could look forward to in the day—the serving out of each man’s ‘tot’ of grog. Faces which at other times wore a look of gloom, were brightening under the influence of the spirit; the ever-present growl was stilled for a while; the joke began to pass around as the blood warmed and flowed more rapidly through the veins, when a whisper—a sort of muttered suggestion, made at first with a kind of apologetic reluctance, but with growing confidence and insistence as it gained ground—passed through the throng of men that one of their number was missing. Such a whisper makes its way through a ship’s company, however large, like a current of electricity, and so it was in this case; but at first the men kept it to themselves. It could not long, however, be concealed; and presently it spread to the midshipmen’s berth; next, the wardroom heard it; and soon the captain himself was made aware of the suspicion. Well I remember, how, as we sat in the cold, damp, comfortless, dirty berth, discussing the matter with boyish eagerness, the sudden shrill pipe of the boatswain’s mate burst upon our ears, followed by the hoarse cry of: ‘Hands muster by open list!’ So, then, the captain thought it important enough to make serious and official inquiry into. Then came the calling over of those five hundred names, with most of which we had been familiar for three years or more of our commission in the Pacific. But I am wrong—not quite all of those five hundred. There came a time when the name of one, a petty officer, was called; but no reply came to the call, and a dead silence reigned over the ship—a silence, I mean, as regards human speech or sound: the gale and the thundering seas never for a moment ceased _their_ tumult. Then followed the grave and searching investigation into the mystery. Who had seen him last? Where was he then? In what state? How long ago was it? and so on, and so on; until at last the whole ship’s company knew that one of their number had gone overboard—presumably in the morning watch; probably swept off by a peculiarly heavy sea, well remembered in that watch. But unknown, unheard, unseen—his cry for help, if such a cry he gave, utterly drowned and smothered in the ceaseless roar of the sea, the shriek of the wind. And so the men were dismissed, each to his special duty; and the paymaster was directed to see that the fatal letters D.D. (Discharged dead) were placed against the unhappy man’s name in the ship’s books.