pony having been the property of the husband, passed on his death to his personal representative, and it had not been shown that the plaintiff was either executrix or administratrix. But it was held that there was evidence, though perhaps slight, that the plaintiff was in possession of the pony at the time it was seized; and if so, since she might clearly have maintained trespass against a wrongdoer, she might waive the tort, and maintain this action to recover the money produced by the sale (h). nor grantee : can And the law is the same with respect to the grantee of the executor. his Accordingly, in the action of trover for a horse and gig, which the plaintiff claimed as the vendee of an executor, it was held, that as at the time of the trial the Ecclesiastical Court had not granted probate, and the executor had never had actual exclusive possession of the gig and horse, the plaintiff could not make out his title, though he produced the will appointing his vendor executor (i). In this case, the plaintiff and defendant both claimed title to the property; and Lord Tenterden, in his address to the jury, observed, that if the plaintiff had proved a clear and undisputed possession, it might have been sufficient; but it appeared that the defendant, before and after the sale to the plaintiff, used the gig and horse. But although an executor cannot maintain actions before probate, except upon his actual possession, yet he may *advance mence an action in them as far as that step where the production of the before probate : probate becomes necessary, 15 and it will be sufficient if he obtains the probate in time for that exigency (k). Thus where he sues as executor, he may commence the action before probate (7): for, but he may com (h) See also Accord. White v. Mullett, 6 Exch. 713, 715; and see further Waller v. Drakeford, 1 E. & B. 749. (2) Pinney v. Pinney, 8 B. & C. 335. 15. Monroe v. James, 4 Munf. 194, 195; Rand v. Hubbard, 4 Met. 252, 256; Shirley v. Healds, 34 N. H. 407, 411; Mitchell v. Rice, 6 J. J. Marsh. 623. (k) Wills v. Rich, 2 Atk. 285. Easton v. Carter, 5 Exch. 8, 14. The court may, however, make an order compelling him to produce the probate upon which he founds his right to maintain the action or stay proceedings until he places himself in a situation to do so. Webb v. Adkins, 14 C. B. 401. Tarn v. Commercial Bank of Sydney, 12 Q. B. D. 294. () 1 Roll. Abr. 917, A. 2. Martin e. Fuller, Comb. 871. Wankford v. Wankford, 1 Salk. 302, 303. Webb v. Adkins, 14 C. B. 401. But in cases where the defendant does not dispute his liability or the title of the executors to probate, but merely requires production of the probate before paying the executor, the executor ought not to sue, and the court will stay the action if he does. Tarn v. Commercial Bank of Sydney, 12 Q. B. D. 294. See in some cases he may aver or de clare before probate: 369 as it has been before observed, the probate, although obtained after action brought, shall, when produced, have relation to the death of the testator, so as to perfect and consummate the will from that period (m).16 So where a reversion of a term comes to him, he may avow before probate for such rent as hath accrued after the death of the testator (n), and if such an issue is joined that it becomes necessary for him to prove his title by executorship (as for instance, if non tenuit should be pleaded), it will be sufficient if he obtains probate in time to produce it in evidence at the trial. So in the cases above considered, where the executor brings an action without naming himself executor, on his constructive possession, he may declare before probate, and if his title to the property be put in issue by the pleadings, he may take probate at any time before the trial, and that will enable him to support the action (0). *So an executor, before probate, may commence an action in the Chancery Division (the bill, however, it was formerly said, must allege that he has proved the will) (p), and the subsequent probate makes the action a good one, if obtained at any time before hearing (9).17 (m) Plowden, 281. 1 Roll. Abr. 917, A. 2. 16. Alvord v. Marsh, 12 Allen 603; Hatch . Proctor, 102 Mass. 351; Dearborn . Mathes, 128 Id. 194, 196; Strong . Perkins, 3 N. H. 517; Spring v. Parkman, 12 Me. 127; Wilson v. Wilson, 54 Mo. 213; Barnard v. Bateman, 76 Id. 414; Drury v. Natick, 10 Allen 169, 174. It follows that acts of the executor done before probate will be valid upon probate, if the rights of innocent parties have not intervened. Wilson, ubi supra. Wilson v. (n) Wankford v. Wankford, 1 Salk. 307, per Holt, C. J. Whitehead v. Taylor, 10 A. & E. 210. (0) It is said an executor may maintain a quare impedit, if he be entitled to the next presentation of a church, which became void, without showing forth the will: Wentw. Off. Ex. 84, 17. Monroe v. James, 4 Munf. 194 195. he may commence action in Chanfore probate : cery Division be 14th edition. But if by the course of (p) Humphreys v. Ingledon, 1 P. Wms. 753. It seems, however, that an executor may, pending an application for probate, bring an action to protect the estate, by obtaining an injunction or otherwise, although he alleges in the statement of claim that he has not yet obtained probate. See Newton v. Metropolitan Railway, 1 Dr. & Sm. 583, infra, note (9). (q) Humphreys v. Humphreys, 3 P. Wms. 351. And in the case of Patten, Executrix, v. Panton, in the Exchequer, An executor can be a petitioning creditor in bankruptcy, but he must obtain probate before he can get a receiving he may be petitioning creditor order (r). in bankruptcy before probate: tion: It would seem also that the executor of a creditor of and may present a company may present a winding-up petition under the winding-up petiCompanies Act before he has obtained probate: it being sufficient if he has obtained probate before the hearing of the petition (s). *On the other hand, if he have elected to administer, he may also, he may be sued before probate, be sued at law or in equity by the before probate. deceased creditors, whose rights shall not be impeded by his delay, and to whom, as executor de jure or de facto, he has made himself responsible (t). So an action may be commenced against an executor, before probate, by a residuary legatee, for an account of the estate and effects of the testator, and to have the assets secured (u). So, before probate, an executor may be compelled to discover the personal estate of his testator, though a suit be pending respecting the validity of the will (x). 1793, it was said, arguendo, that it had been determined by that court about three years ago, that it is sufficient if the probate were obtained at any time before hearing: 3 Bac. Abr. 53, by Gwillim, Executors (E.) 14. But a plea that the executor has not obtained probate was allowed, on the ground that the cause must be considered as having come on to be heard: Simons v. Milman, 2 Sim. 241. See also Jones v. Howells, 2 Hare, 353, per Wigram, V.C. Post, Pt. V. Bk. I. Ch. II. In Newton v. Metropolitan Railway Company, 1 Dr. & Sm. 583, a bill by executors for a specific performance alleged, as the fact was, that the executors had not proved. Notice of motion for an injunction was given, and at that time when the motion, but for the press of business, would have been heard, there was no probate but when the motion was actually heard, the probate was in court; and it was held by Sir R. Kindersley, V.-C., that the defendants could not resist the motion upon the ground of demurrer: See also Beardmore . Gregory, 34 L. J., Ch. 392. (r) See ex parte Paddy, 3 Madd. 241. Rogers v. James, 7 Taunt. 147, cases decided under the old Bankruptcy Acts. (8) Re Masonic & General Life Assurance Co., 32 C. D. 373. (t) Wentw. Off. Ex. 86, 87, 14th edition. Plowd. 280. Toller, 49. It is clear upon the grounds which have already been stated (see p. *228), that if he has administered, he will be liable, not only before probate, but though he should refuse to take probate, and administration should be committed to another. See the observations of Best, C. J., in Douglas v. Forest, 4 Bingh. 704. (u) Blewitt v. Blewitt, 1 Younge, 41. (x) Dulwich College v. Johnson, 2 Vern. 49. See also Phipps v. Steward, 1 Atk. 285. Fonbl. Treat, on Eq. Bk. 4, Pt. 2, c. 1, s. 2, n. b. Since the passing of the Judicature Acts, actions for the sole purpose of obtaining discovery have become very rare. If he die before probate, his ex ecutor shall not be executor to the first testator. If an executor die before probate, although, as already mentioned, the acts which he may legally do before probate stand firm and good, yet his executor may not prove both wills, and so become executor to both the testators (y). But administration of the goods of the first testator, with the will annexed to it, is to be committed to the executor of the executor, if the first executor be residuary legatee of the first testator; or to such other person as may be so appointed; otherwise to the next of kin of the first testator (2). (y) Wankford v. Wankford, 1 Salk. 308. in Lord Holt's judgment. S. C., 1 Freem. 520. (2) Isted v. Stanley, Dyer, 372, a. Wentw. Off. Ex. 82, 14th edition. Godolph. Pt. 1, c. 20, s. 2. See post, Pt. I. Bk. V. Ch. III. § I. 372 *CHAPTER THE SECOND. OF THE MANNER OF OBTAINING PROBATE, AND THE PRACTICE OF THE COURT WITH RESPECT THERETO. SECTION I. By whom the will should be proved: and herewith of the production and deposit of testamentary papers. Executor alone can prove will. The person alone by whom the testament can be proved is the executor named in it (a),1 whom (as before stated) the court may cite to the intent to prove the testament, and The executor may take upon him the execution thereof, or else to refuse by the Ordinary. the same (b). This may the court do, not only ex officio, but at the instance of any party having an interest, which interest is proved by the oath of the party. be cited to prove Citation, purpose of. A citation answers two purposes it either compels a representation to be taken by those who are primarily entitled to it, or where they do not take it, the process provides a substitute for a voluntary renunciation on their part. Availing himself, therefore, of the rule, a person having an inferior interest, but unable to procure the renunciation of the persons who have the superior interest, cites all those persons who have such superiority to take the required grant, or show cause why it should not be made to himself.2 Thus in the case of a will, the residuary legatee cites the executor "to accept or refuse the probate and execution of the testator's Will, or to show cause why letters of administration with the Will annexed of the personal estate of the testator should not be granted to him (the residuary legatee)." And if there be also a residuary legatee in trust the party citant cites him "to accept or refuse letters of administration* with the Will annexed of the personal estate of the testator." (a) Wankford v. Wankford, 1 Salk. 309. 1. No such rule as this prevails in the United States. And however appropriate it might be that the executor should initiate proceedings for probate, probate will be granted upon a will duly proved before the court without regard to which of the persons entitled was the mover in the proceed. ing. But devisees under a nuncupative will cannot prove it without annulling their devises. Lewis v. Aylott, 45 Tex. 190. (b) Swinb. Pt. 6, s. 12, pl. 1. Godolph. Pt. 1, c. 20, s. 2. Ante, p. *225. 2. Matter of Batchelor, 64 How. Pr. 350. |