And the law is the same with respect to the grantee of the exnor can his ecutor. Accordingly, in an action of trover for a horse grantee: 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. (n) 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, 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 he may commence an action before probate: But although an executor cannot maintain actions before probate, except upon his actual possession, yet he may advance in them as far as that step where the production of the probate becomes necessary, and it will be sufficient if he obtains the probate in time for that exigency. (0) Thus where he sues as executor, he may commence the action before probate, (p) and arrest a debtor to the estate ; (q) for, 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. (r) So where a reversion of a term comes and arrest the defendant: (n) Pinney v. Pinney, 8 B. & C. 335. (0) Wills v. Rich, 2 Atk. 285; Easton v. Carter, 5 Exch. 8, 14. (p) 1 Roll. Abr. 917, A. 2; Martin v. Fuller, Comb. 871; Wankford v. Wankford, 1 Salk. 302, 303. Ventr. 370; Skin. 87. And see Toller, 471; Wentw. Off. Ex. note by Curson to p. 84, 14th ed. But the case of Duncomb v. Walter is very obscurely reported; and the point above stated is not necessarily involved in the decision of it, as re (7) Admitted by Saunders C. J. in ported in Skinner, p. 88 (where the word Duncomb v. Walker, Skin. 87. (r) Plowden, 281; 1 Roll. Abr. 917, A. 2. But this relation, it has been said, shall not prejudice a third person; and therefore where a debtor, after being arrested by an executor before probate, and set at large on bail, paid a debt to J. S., the debtor was adjudged upon that principle, it is reported, not to be a bankrupt from the time of the arrest, so as to invalidate the payment. Duncomb v. Walter, 3 Lev. 57; S. C. Skin. 22; T. Raym. 479; 2 Show. 253; 1 Freem. 539; S. C. in error; not" seems omitted by an error of the press), and in Shower; nor is it easy to comprehend on what ground the doctrine can rest. Lord Holt, in 1 Salk. 110, said he was not satisfied with the judgment; but he probably referred to the relation of the bankruptcy merely. In this latter respect, however, Duncomb v. Walter has been confirmed by the modern decisions. See Rose v. Green, 1 Burr. 437; Barnard v. Palmer, 1 Campb. 509; Eden B. L. 36. [The doctrine that letters testamentary, when issued, relate back to the death of in some cases he or may avowW declare before pro to him, he may avow before probate for such rent as hath accrued after the death of the testator, (8) 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 bate: 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. (t) * he may file a bill before pro bate: So an executor, before probate, may file a bill in equity (in which bill, however, it is said he must allege that he has proved the will), (u) and the subsequent probate makes the bill a good one, if obtained at any time before hearing. (x) And a commission of bankrupt may mission of be taken out by an executor before he has obtained bate. (y) the testator, and legalize all intermediate acts of the executor, must be understood to cover those acts only which might have been done by him had he been executor at the time. Bellinger v. Ford, 21 Barb. 311.] (s) Wankford v. Wankford, 1 Salk. 307, per Holt C. J.; Whitehead v. Taylor, 10 Ad. & El. 210. (t) 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, 14th ed. But if by the course of the pleadings it should become a part of his case to prove his title, he certainly can only do so by producing the probate; and it may be doubtful whether the passage above cited is, in any case, law, inasmuch as it should seem that executors must show their title in the declaration in quare impedit. (u) Humphreys v. Ingledon, 1 P. Wms. 753; but see contra, Newton v. Metropolitan Railway, 1 Dr. & Sm. 583; post, 309, note (r). (x) Humphreys v. Humphreys, 3 P. Wms. 351. And in the case of Patten, executrix, v. Panton, in the exchequer, pro and take out a com bankruptcy: 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 lately 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. 1. ch. 11. '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 v. Gregory, 34 L. J. Ch. 392. (y) Ex parte Paddy, 3 Madd. 241; S. C. sued before On the other hand, if he have elected to administer, he may he may be also, before probate, be sued at law or in equity by the probate. deceased's 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. (z) So a bill may be filed 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. (a) So, before probate, an executor may be compelled to discover the personal estate of his testator, though a suit be pending in the spiritual court respecting the validity of the will. (b) *If an executor dies before probate, although, as already mentioned, the acts which he may legally do before probate before pro- stand firm and good, yet his executor may not prove both wills, and so become executor to both the testaexecutor to tors. (c) 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. (d) If he die bate, his executor shall not be the first testator. 1 Buck, 235; Rogers v. James, 7 Taunt. 147; S. C. 2 Marsh. 425. (2) Wentw. Off. Ex. 86, 87, 14th ed.; Plowd. 280; Toller, 49. It is clear upon the grounds which have already been stated (see pp. 277, 278), 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, Bing. 704. (a) Blewitt v. Blewitt, 1 Younge, 541. [310] 49. See, also, Phipps v. Steward, 1 Atk. 285; Fonbl. Treat. on Eq. bk. 4, pt. 2, c. 1, s. 2, note (b). (c) Isted v. Stanley, Dyer, 372 a; Hayton v. Wolfe, Cro. Jac. 614; S. C. Palm. 153; Hutton, 30; Wentw. Off. Ex. 82, 14th ed.; Day v. Chatfield, 1 Vern. 200; Wankford v. Wankford, 1 Salk. 398, in Lord Holt's judgment; S. C. 1 Freem. 520. (d) Dyer, 372 a; Wentw. Off. Ex. 82, 14th ed.; Godolph. pt. 1, c. 20, s. 2. See post, pt. 1. bk. v. ch. 111. § 1. *CHAPTER THE SECOND. OF THE MANNER OF OBTAINING PROBATE, AND THE PRACTICE OF THE ECCLESIASTICAL COURT WITH RESPECT THERETO. SECTION I. By whom the Will should be proved: and herewith of the Production and Deposit of Testamentary Papers. The execu tor may be prove by cited to the ordi THE person alone by whom the testament can be proved, is the executor named in it, (a) whom (as before stated) the court of probate may cite to the intent to prove the testament, and take upon him the execution thereof, or else to refuse the same. (b) This may the court do, not only ex officio, but at the instance of any party having at the inan interest, which interest is proved by the oath of the party. (c) But such party should, in prudence as well as fairness, communicate to the executor, previous to caus (a) 1 Salk. 309. [The person whose duty it would properly be to initiate measures for the proof of the will, is the executor named in it. But in the American States it is not exclusively his right, nor always the practice, for the executor to do so. In Texas an executor named in e will, by neglecting to prove it within thirty days, does not lose the right to be appointed executor, if he presents a valid excuse for his neglect. Stone v. Brown, 16 Texas, 425.] (b) Swinb. pt. 6, s. 12, pl. 1; Godolph. pt. 1, c. 20, s. 2; ante, 274. [This authority in the judge of probate is incident to his general jurisdiction of the probate of wills, and the power of granting administrations. Stebbins v. Lathrop, 4 Pick. 42. nary: stance of any party having an interest. The statute penalty for neglecting to exhibit a will is merely cumulative. Stebbins v. Lathrop, 4 Pick. 33, 42. See State v. Pace, 9 Rich. Law (S. Car.), 355. It has been held that the devisees and legatees of a will may bind themselves to destroy it by parol agreement or in writing. Phillips v. Phillips, 8 Watts, 195. See Adams v. Adams, 22 Vt. 50.] As to the form of the citation, see stat. 1 Edw. 6, c. 2. (c) Ib. Some think it may be done at the instance of such as have no interest, to the intent that thereby they may be certified whether the testator left them a legacy. Godolph. pt. 1, c. 20, s. 2. [In Stebbins v. Lathrop, 4 Pick. 33, 42, Wilde J. said: "By our law, whoever has a ing such a decree of citation to issue, the ground of such a proceeding; otherwise the former may have to pay the costs. Thus, in a modern case, where the testator was domiciled and died in Scotland, a creditor cited the executor, under the seal of the prerogative court of Canterbury, to accept or refuse probate, with the usual intimation. The executor, sub modo, denied the jurisdiction of the court, by reason that the deceased, while living, and at the time of his death, had no goods, chattels, or credits, within the province of Canterbury, sufficient to * found the jurisdiction of the court, alleging that he was willing to take probate on being satisfied to the contrary. The creditor upon this was compelled to disclose assets within the province; whereupon the executor retracted his qualified denial, and prayed probate; which was granted to him, and the creditor was condemned in the costs, as incurred solely by reason of his undue suppression of the fact of there being assets. (d) When the will is destroyed or concealed by the executor, (d1) if it be proved plainly, a legatee may go to a court of equity for a decree upon the head of spoliation and suppression; although the general rule is to cite the executioner in the ecclesiastical court. (e) If the executor has not the will in his custody, but some other The holder person, then may such person be compelled to exhibit the same. (f) And it is sufficient to prove that once of a will may be right to offer a will in evidence, or to make title under it, may insist on having it proved. A creditor, therefore, of a devisce has this right for the purpose of obtaining satisfaction of his debt; other wise there might be a failure of justice." Any person interested in a will may have it proved. Stone v. Hereford, 8 Blackf. 452; Foster v. Foster, 7 Paige, 48; Matter of Greeley, 15 Abb. Pr. (N. S.) 393.] (d) Lyon v. Balfour, 2 Add. 501. (d1) [As to the right of devisees and legatees to destroy a will, see ante, 311, note (b); Adams v. Adams, 22 Vt. 50.] (e) By Lord Hardwicke in Tucker v. Phipps, 3 Atk. 360. (f) Swinb. pt. 6, c. 12, pl. 2; Godolph. pt. 1, c. 20, s. 2; Bethun v. Dinmure, 1 Cas. temp. Lee, 158; [Stebbins v. Lathrop, 4 Pick 33, 42. In Massachusetts, and in other states, persons, other than the register of the probate court, having the custody of wills, are required, within a certain time after the death of the testator, to deliver them into the probate court which has jurisdiction of the case, or to the executors named in the will; and are made subject to imprisonment, and liability for damages, in case of neglect so to deliver, after being duly cited for that purpose by the court. Genl. Sts. Mass. c. 92, § 16. See Hill v. Davis, 4 Mass. 137; Loring v. Oakey, 98 Mass. 267; Stebbins v. Lathrop, 4 Pick. 33; Smith v. Moore, 6 Greenl. 274. By statute 1875, c. 210, persons named as executors in wills, and having custody thereof, are required, within thirty days after knowledge of the death of the testator, to deliver such wills into the probate court, under penalty for default. |