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CHAP. XV.

probate of wills or letters of administration of the effects
of deceased persons, shall in respect of such matters ab-
solutely cease, and no jurisdiction or authority in relation
to any matters or causes testamentary, or to any matter
arising out of or connected with the grant or revocation
of probate or administration, shall belong to or be exer-
cised by any such court or person.
(a)

“ The voluntary and contentious jurisdiction and Testamentary authority in relation to the granting or revoking probate be exercised

jurisdiction to of wills and letters of administration of the effects of de- by a Court of

Probate. ceased persons, now vested in or which can be exercised by any court or person in England, together with full authority to hear and determine all questions relating to matters and causes testamentary, shall belong to and be vested in her Majesty, and shall, except as hereinafter is mentioned, be exercised in the name of her Majesty in a court to be called the Court of Probate, and to hold its ordinary sittings, and to have its principal registry at such place or places in London or Middlesex as her Majesty in council shall from time to time appoint." (6) “ The Court of Probate shall be a Court of Record, The Court to

have throughand such Court shall have the same powers, and its grants out all England and orders shall have the same effect throughout all Eng- powers as the land, and in relation to the personal estate in all parts of Court within

Prerogative England of deceased persons, as the Prerogative Court the province of of the Archbishop of Canterbury and its grants and orders respectively now have in the province of Canterbury, or in the parts of such province within its jurisdiction, and in relation to those matters and causes testamentary, and those effects of deceased persons which are within the jurisdiction of the said Prerogative Court; and all duties which, by statute or otherwise, are imposed or (a) S. .

(1) S. 2:

the same

CHAP. XV. should be performed by ordinaries generally, or on or by

the said Prerogative Court, in respect of probates, administrations, or matters or causes testamentary within their respective jurisdictions, shall be performed by the Court of Probate: Provided that no suits for legacies or suits for the distribution of residues shall be entertained by the court, or by any court or person whose jurisdiction as to matters and causes testamentary is hereby

abolished." Husbands not The twenty-fifth section of the Statute of Frauds procompellable to make distribu- vides that “for the better explaining one act of this pretion of the sonal estates of sent Parliament entitled 'An Act for the better settling of their wives.

intestates' estates,'(a) be it declared that neither the said act nor anything therein contained shall be construed to extend to the estates of feme-coverts that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the making of this act.”

The husband is the next friend and nearest relation of the wife, and has a right to administer exclusive of all other persons ;(b) both the administration and the property belong exclusively to the husband-it is not an ecclesiastical, but a civil right—though it is a right admi

nistered in the Court of Probate.(c) Distinction If a marriage is not void, but voidable merely, and the between rights of husband

wife dies without a sentence of nullity having been prounder void and voidable

nounced, the husband is entitled to administration. But marriage. if a marriage is void the husband cannot be entitled to

(a) 22 & 23 Car. II. c. 10.

(6) Humphrey v. Bullen, 1 Atk. 459.

(c) Elliott v. Gurr, 3 Phillim.

22, per Sir J. Nicholl.

See as to the foundation of this right, 1 Wms. Exors. 7th ed. 410.

administration.(a) “The canonical disabilities,” said Chap. XV. Sir J. Nicholl,(b) “such as consanguinity-affinityand certain corporal infirmities, only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained, and such marriages are esteemed valid unto all civil purposes, unless such sentence of nullity is actually declared during the lifetime of the parties. Civil disabilities, such as a prior marriage, want of age, idiotcy, and the like, make the contract void ab initio, not merely voidable; these do not dissolve a contract already made, but they render the parties incapable of contracting at all; they do not put asunder those who are joined together, but they previously hinder the junction, and if any persons under these legal incapacities come together it is a meretricious and not a matrimonial union, and therefore no sentence of avoidance is necessary.”

When a woman, whose marriage has been dissolved on Wife divorced. the ground of the husband's adultery and desertion dies intestate, the husband will not be entitled to take out administration. (c) Where a married woman, having been deserted by her Wife deseited

by husband. husband, obtained a protection order under 20 & 21 Vict.c. 85, s. 21, by reason of his desertion, the Court on her death intestate in the life of her husband, decreed letters of administration, limited to such personal property as she had acquired or become possessed of since the desertion, without specifying of what that property consisted, to be granted to one of her next of kin. (d)

(a) See Browning v. Reane, (c) Re Hay, 35 L, J. P. & 2 Phillim. 69, as to the husband M. 3. being condemned in costs where (d) Re Worman, 1 Sw. & Tr. the wife was of weak mind. 413; Re Faradny, 2 Sw. & Tr

(6) Elliott v. Gurr, 3 Phil- 316. lim. 19.

CHAPTER XVI.

SPECIFIC PERFORMANCE.

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OTWITHSTANDING the provisions of the

fourth section of the Statute of Frauds, that no action shall be brought whereby to charge

any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized; the Court will in some cases decree specific performance of a parol contract, where there have been acts of part performance on the part of the plaintiff.(a)

The leading case on this point is Lester v. Foxcroft,(6) where the acts of part performance consisted in the plaintiff's pulling down an old house and building new houses according to the terms of the agreement. The principles upon which the Court acts were thus laid down by Lord Redesdale in Bond v. Hopkins:(c) (a) As to specific perform

v. Slade. ance generally, see Fry on (6) 1 Coll. P. C. 108; S. C. Specific Performance. Dart.

nom. Foxcraft v. Lyster, 2 V. & P. 5th ed. 981 ; W. & T. Vern. 456. L. C. notes to Lestor v. For. (c) 1 Sch. & Lef. 4:33. croft; Il'oollam v. II carn; Seton

Principles on which Court acts.

CHAP. XVI.

а

“ The Statute of Frauds says that no action or suit shall be maintained on an agreement relating to lands which is not in writing, signed by the party to be charged with it, and yet the Court is in the daily habit of relieving, where the party seeking relief has been put into a situation, which makes it against conscience in the other party to insist on the want of writing so signed as a bar to his relief. The first case (apparently) of this kind was Foxcraft v. Lyster.(a) That case was decided on a principle acted upon in courts of law, though not applicable by the modes of proceeding in a court of law to the particular case. It was against conscience to suffer the party who had entered and expended his money on the faith of a parol agreement to be treated as a trespasser, and the other party to enjoy the advantage of the money he had laid out. At law fraud destroys rights. If I mix my corn with another's he takes all, but if I induce another to mix his corn with mine I cannot then insist on having the whole. The law in that case does not give me his corn. The case of Foxcraft v. Lyster, therefore, I conceive was decided on clear principle, though whether the cases founded on that case have been all so well considered I will not take upon me to say. from these cases that courts of equity have decided on equitable grounds, in contradiction to the positive enactment of the Statute of Frauds, though their proceedings are in words included in it." () In the case of The Duke of Leeds v. The Earl of Amherst,(c) Shadwell, V.C., said: “I take it that the general wisdom of mankind

But it appears

:

(a) Cited 2 Vern. 456; and reported in Colles's Parl. Cas. 108.

(b) See also ('linan v. Cooke,

1 Sch. & Lef. 41 ; Dillwyn v.
Llewellyn, 10 W. R. (L. C.)
742.

(c) 20 Beav. 239.

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