II. Of the Interest of an Executor or Administrator in the Estate of the Deceased, In what Cases it is transmissible Where an Administration de bonis non is necessary III. Of limited or temporary Administrations. During Minority During Absence Pendente Lite IV. Of an Executor de son Tort, V. Of the Disposition of the Estate of the Deceased, VI. Of Admission of Assets, VII. Of Actions by Executors and Administrators, What Actions may be brought Executors and Administrators must join VIII. Of Actions against Executors and Administrators, What Actions may be maintained What Causes of Action may be joined.. What Executors are to be Defendants 767 .. 770 771 772 772 794 798 799 801 802 I. Of Probate. By the 20 & 21 Vict. c. 77, ("the Court of Probate Act, 1857,") the testamentary jurisdiction of all ecclesiastical, peculiar, manorial and other courts, having authority to grant or revoke probate of wills or letters of administration, (and therewith the whole doctrine of bona notabilia,) is abolished (sect. 3); and the juris diction and authority of granting or revoking probate, &c. is vested in the Court of Probate established under that act, to which all the powers then vested in any court or person for those purp ses are transferred (sect. 4). By sect. 23, such court shall have the same powers, and its grants and orders the same effect, in relation to the personal estate of deceased persons, as the Prerogative Court had within the province of Canterbury at the time of the passing of the act. And by sect. 25, the same power of enforcing its decrees, orders, &c. as the Court of Chancery. "It is well established, that in the case of a British subject dying intestate in the colonies or in foreign countries, a prerogative administration extends to all the personal property of the intestate, wherever situate, at the time of his death, whether in Great Britain, or in the colonies, or in any country abroad" (a). There is, it is presumed, no distinction in this respect between probate and letters of administration. Assets in Ireland are to be considered as assets abroad, S. C. But by 20 & 21 Vict. c. 79, ss. 94, 95, Irish probates or letters of administration may be produced to the English Probate Court, and when sealed with the seal of the court, and stamped, have the same effect as a probate here; and so of English probates, &c. produced in Ireland to the court there. Administration was granted in Bengal to B. as attorney to A., a creditor in Bengal, and he received money under that. Afterwards C. obtained administration in England. A. sued B for money had and received to his use; and it was held, that he was entitled to recover (b). So where a widow of an officer obtained administration in Bombay, and transmitted effects of the deceased obtained thereunder to her agent in England, and a creditor of the deceased afterwards took out administration in England and sued such agent for money in his hands, it was held, that the action would not lie at his suit, but only at that of the widow (c). If one take administration to a person who was felo de se, and receive effects under it, he shall be liable to creditors, though, by law, the effects belong to the king (d). By sect. 46 of the 20 & 21 Vict. c. 77, the district registrars appointed under the act may grant probate or administration in common form, in the name of the Court of Probate, on an affidavit, that the testator or intestate had a fixed place of abode within the district, such probate to have effect over the personal estate of the deceased in all parts of England; " and every probate and administration granted by any such district registrar shall effectually discharge and protect all persons paying to or dealing with any executor or administrator thereunder, notwithstanding the want of or defect in such affidavit, as is hereby required." Sect. 47. By sect. 62, when probate of a will affecting real estate is granted (a) Per Cur. Whyte v. Rose, 3 Q. B. 507. (b) Farringdon v. Clerk, 3 Doug. 124. (c) Currie v. Bixham, 1 D. & R. 35. (d) Megit v. Johnson, 2 Doug. 542. in solemn form, or its validity declared by a decree in a contentious matter, the probate or decree shall enure for the benefit of all persons interested in the real estate affected by the will, and the probate copy of the will, or the letters of administration with the will annexed, or a copy thereof, stamped with the seal of the court, shall, in all courts, and in all suits relating to real estate, (except appeals under the act,) be received as conclusive evidence of the contents and validity of the will, in like manner as a probate is received in evidence in matters relating to personal estate. Where probate has not been granted in solemn form, or the validity of the will so established, the probate, or a copy, is to be sufficient evidence of the contents of the will and its validity, unless notice has been given by the other party to dispute it. Sect. 64. The costs of producing and proving the original will in any such action are in the discretion of the judge at the trial. Sect. 65. After any grant of administration no person shall have power to prosecute any suit, &c. until such administration shall have been revoked; sect. 75; but in case of proceedings being commenced against a temporary administrator, and the administration being subsequently revoked, a suggestion may be made on the record of such revocation, and of the grant of probate, &c. consequent thereon, and the action may proceed against the new executor or administrator, subject to such conditions as the court may direct. Sect. 76. By sect. 86, all grants of probates and administrations made before the commencement of the act, (25th August, 1857,) which may be void or voidable by reason only that the courts from which respectively the same were obtained had not jurisdiction to make such grants, shall be as valid as if the same had been obtained from courts entitled to make such grants.-This provision does not apply to grants, by courts having competent jurisdiction, to the wrong person. Such grant, however, "is not void, but only voidable" (e). So Weston, Baron, in Simpson v. Tresler, Bull. N. P. 141, "Where administration is granted in a wrong diocese, it is void where to a wrong person, voidable." So payment of money to an executor who has obtained probate under a forged will, is a discharge to the debtor, though the probate be afterwards declared void, for the law will never compel any person to pay a sum of money a second time, which he has once paid under the sanction of a court of competent jurisdiction (f). And the 20 & 21 Vict. c. 77, contains a similar provision (sect. 77) as to payments bonâ fide made to any executor or administrator under a probate or administration subsequently revoked under that act, which payments are to be "a legal discharge to any person making the same. A probate, as long as it remains unrepealed, cannot be impeached in the temporal courts (g). (e) Per Holt, C. J., Blackborough v. Davis, Salk. 38. (f) Allen v. Dundas, 3 T. R. 125. See Pond v. Underwood, post, p. 769. II. Of the Interest of an Executor or Administrator in the Estate of the Deceased. Executors or administrators so entirely represent the personal estate of the testator or intestate (h), that they are liable to the payment of all debts, covenants, &c. of the deceased, as far as the assets which have come to their hands will extend (i). The executors more actually represent the person of the testator, than the heir does the person of the ancestor; for if a man bind himself, his executors are bound, though they are not named; but the heir is not bound, unless he be expressly named (k). Before probate, and before any seizure, the law adjudges the property of the goods of the testator in the executors. Hence if any person take the goods of the testator before the executors have seized them, the executors shall have an action of trespass (2 Inst. 398) or replevin; by Walsh, J., and Dyer, C. J., Plowd. 281, a. So if a man die possessed of goods, and a stranger takes and converts them to his own use, and afterwards administration is granted to J. S.; J. S. may maintain trover for this conversion. 2 Roll. Abr. 399, (A.) pl. 1. Executors may release, or take a release before probate, if they prove afterwards (1). So executors may commence an action before probate, and it was sufficient, formerly, if at the time of declaring they produced in court the letters testamentary (m); and, profert not being now necessary in pleading (15) & 16 Vict. c. 76, s. 55), it would seem to be sufficient, if the probate be obtained before trial (n). Each executor has the entire control of the personal estate of the testator, and may release or pay a debt, or transfer any part of the testator's property, without the concurrence of the other executor (o). If two have a lease for years as executors, and one sells the whole, this shall bind the other; and the whole shall pass; for each had the entire power of disposing of the whole, both being possessed in the right of the testator (p). So if one dispose of all the goods of the testator without the other (g). And it seems that the same rule holds with respect to administrators. Willand v. Fenn, E. 11 Geo. II. B. R, MS. In that case a question arose, whether the release of one administrator would bind his companion? The case was argued in E. 11 Geo. II., when the court, entertaining doubts, directed a second argument. The second argument was heard Trin. 11 & 12 Geo. II., when Lee, C. J., expressed a strong opinion in favour of the affirmative, observing, that it was (h) 1 Inst. 208, b. (i) See per Parke, B., Siboni v. Kirkman, 1 M. & W. 423. (k) 1 Inst. 209, a. 281, a., S. P. (m) 1 Roll. Abr. 917, (A.) pl. 2. Lord Hardwicke, C. Acc. in equity, Humphreys v. Humphreys, 3 P. Wms. 351; Bateman v. Margerison, 6 Hare, 504. (0) Per Sir J. Strange, M. R., 2 Ves. sen. 267. (p) Pannell v. Fenn, 1 Roll. Abr. 924, (O.) pl. 1; Gouldsb. 185, S. C. (q) Dyer, 23, b., in marg. extremely difficult to form a distinction between executors and administrators upon any reasonable foundation; and that although it had not ever been determined at law, that the administration survived, yet having been so determined in equity, in Adams v. Buckland, 2 Vern. 514, cited 2 P. Wms. 121, n.; and by Lord Talbot, in the case of Hudson v. Hudson, Ca. Temp. Talbot, 127; he thought those authorities were so strong, that they ought not to be departed from. The other judges were inclined to the same opinion, but as the case was new, and of general consequence, they ordered it to be argued again. According to Sir J. Strange, M. R., in Jacomb v. Harwood, 2 Ves. 267, the case was decided in the affirmative after the third argument; but from a MS. note in my possession, it appears to have been compromised before the third argument took place. In Mr. J. Gundry's MS. note, 13 Gundr., 33, a, it is said to have been adjudged for defendant; that is, that the release of one administrator did bind his companion. But see Hudson v. Hudson, 1 Atk. 460, West's Reports from Lord Hardwicke's MSS. p. 155, S. C.; and the observations of Sir J. Nichol, in Warwick v. Greville, 1 Phillim. 126; Stanley v. Bernes, 1 Hagg. Ecc. R. 222. Executors and administrators have a joint interest in the estate of the deceased. Hence, if there are two or more executors (r) or administrators (s), and one or more of them die, the administration of the estate of the deceased belongs to the survivor or survivors; and it seems, that an action may be brought by a surviving administrator without procuring a new grant of letters of administration (t). Where there are several executors, and one alone proves the will, and the rest renounce; upon the death of him who proved, there is not any interest transmitted to his executor, if any of them who refused be surviving. The surviving executors are the representatives of the original testator, and continue so until the last surviving executor has renounced after the death of his companion (u); or an administrator de bonis non is appointed (x). As an executor is not entitled in his own right, but in auter droit, (2 Inst. 236) to the property of the deceased, the goods of a testator, in the hands of his executor, cannot be seized in execution for the proper debt of the executor (y). So "if an executor become bankrupt, the commissioners cannot seize the specific effects of his testator.' Per Lord Mansfield, C. J., 3 Burr. 1369. But if an executrix convert the goods of her testator, e. g. if she use them as her own, and afterwards marry, and then the goods are treated as the goods of the husband, they may be taken in execution for the husband's debt (z). The mere use, however, of the (r) Flanders v. Clarke, 3 Atk. 510. (s) Hudson v. Hudson, Ca. T. Talb. 127; Adams v. Buckland, 2 Vern. 514. (t) Per Sir J. Strange, M. R., 2 Ves. 268, cites Rastall, 560, which was replevin by a surviving administrator, but no judg ment. (u) Arnold v. Blencowe, 1 Cox, 426. (y) Farr v. Newman, 4 T. R. 621. |