s. 61, that where proceedings are taken to prove a will in solemn form, or to revoke probate, or the validity of a will affecting real property is disputed in a contentious cause, all persons interested in the real property who are affected by the will shall be cited to the proceedings, and may be permitted to become parties, and being cited (s. 62) after the decision of the Court upon the validity of the will, the probate or letters of administration with the will annexed shall be a conclusive evidence to affect the real property as formerly it would have been concerning the personal property; but (s. 63) if the persons interested in the real property are not cited, the decree of the Probate Division does not bind or conclude them. And by s. 64, in actions concerning devises or dispositions of realty, instead of producing the original will, either party may give the other ten days' notice that he will produce the probate, though only proved in common form, instead of the original. The party notified may then within four days give notice that he disputes the validity of the devise or disposition, whereupon the original will, if only proved in common form, must be produced. But if the original is thus called for without necessity, the party requiring it may be visited (s. 65) with the costs of the production. None of the above remarks concerning the conclusive nature of probates and letters of administration are to be understood as in any way qualifying the right of any litigant to deny that the document, which purports to be a probate or letters of administration, is really such, or to deny that the Court which issued it had jurisdiction to do so, for the judgment of a Court without jurisdiction avails nothing in a subsequent action.1 1 Allen v. Dundas, 3 East 125. CHAPTER VIII. THE REVOCATION OF PROBATES AND LETTERS OF ADMINISTRATION. APPEALS lie from the decisions of the Probate Division to the Court of Appeal; and when a case has been heard by the judge without a jury a rehearing may be applied for, or an appeal will lie from the findings of the judge upon questions of fact or law to the Court of Appeal;1 and grants may also be revoked upon a suit by citation, in which case the party holding a grant of probate or administration is cited to bring in the probate or letters of administration, and show cause why they should not be revoked; but until such revocation no other person can sue as representative of the deceased.2 When an executor proves a will in solemn form he should take care to cite all persons in any way interested, and the will having been then proved, the executor cannot be again required to prove the will, unless a later will be set up, or fraud be shown, when the former probate will be revoked.3 Generally in revoking letters of administration the Court is guided by the rule that the grant should follow the interest. Therefore if the administrator is not really the next of kin, or some person having a better title to the grant was not cited, or the interest of the administrator has ceased, the grant may be revoked. So if the administrator cannot act, through residence 1 Sugden v. St. Leonards, L. R. 1 P. Div. 154; Jones v. Hough, L. R. 5 Ex. Div. 115. 2 21 & 22 Vict. c. 77, s. 75. 3 Wood v. Medley, 1 Hagg. 557. 4 • Blackborough v. Davis, 1 Salk. 38; Brown v. Wood, Al. 36. abroad, or lunacy, the grant to him may be revoked.1 But it is not enough in order to obtain a revocation to show that someone else had as good a right to the grant as the administrator, or that the administrator is not administering properly.2 In practice it is usual, when any question as to the validity of a will or as to the grant of probate or of letters of administration is likely to arise, to enter a caveat in the Probate Division, in order to prevent grants being made without the knowledge of the party presenting the caveat. With regard to the effect of revocation upon acts done before the revocation, it is provided by the Act 20 & 21 Vict. c. 77, SS. 77, 78, that all payments bonâ fide made to any executor or administrator under any revoked probate or administration before the revocation, shall be a legal discharge to the person making the same, and that an action begun by an executor or administrator before his probate or administration has been revoked, shall not abate upon revocation, but may be continued by the new executor or administrator, and that the executor or administrator who shall have acted under a probate or administration afterwards revoked, may retain and reimburse himself for any payments made by him, which the person to whom probate or letters of administration shall be afterwards granted might have lawfully made. Before and apart from the statute, the effects of revocation differed when the probate or administration revoked was void or voidable. If void, every act done before the revocation was null, e.g., if the executor or administrator under a void grant sold or otherwise disposed of assets, they might be followed by the subsequent and lawful executor or administrator into the hands of an innocent purchaser,3 unless the disposition were made for the purpose of paying the testator's debts. Where such grant was not void but voidable, the effect of revocation upon intermediate acts was different, at least where the revocation 1 Offley v. Best, 1 Sid. 373. 2 Taylor v. Shore, T.Jones, 161; Thomas v. Butler, 1 Vent. 219. 3 Graysbrook v. Fox, Plowd. 276. was not made by way of appeal, but by way of a subsequent suit by citation. In the latter case the revocation did not invalidate any act which the administrator if properly appointed might lawfully have done. Therefore if such an administrator has retained for his own debt, or has sold or made gifts of assets, revocation does not affect the act.1 1 Packman's Case, 6 Co. 18 b; Blackborough v. Davis, 1 Salk. 38. 1 CHAPTER IX. THE RIGHTS AND POWERS OF A LEGAL PERSONAL REPRESENTATIVE. AN executor's rights and interest rest upon the testator's death and not upon probate; wherefore an executor has nearly the same powers before probate as he has after it, and his acts done before probate are good, although he should afterwards die without proving the will, when administration is granted not to the executor's executor, but to the next of kin. Thus, he can receive and release debts, assign terms, and pay or assent to legacies, and petition for the adjudication of a debtor as a bankrupt. But no one is bound to deal with him as executor before probate, because until then he cannot make a complete title, it being sometimes necessary to prove the executor's title to act, which can only be done by reference to the probate. And it is for this reason that, when he sues as executor, or in any action founded upon his representative character, unless founded upon his physical possession, he must have probate, when at the trial or otherwise it becomes necessary to produce it, otherwise the action will be defeated.2 But he may commence an action without having obtained probate, and may carry it on without probate up to the time when production of probate becomes necessary. As the executor may act before probate as executor, and because it would be unreasonable that creditors should be 1 Godolphin, Pt. 2, c. 20, ss. 1-3. 2 Newton v. Metropolitan Ry, Co., 1 Dr. & Sm. 583; Webb v. 3 Easton v. Carter, 5 Exch. 8. |