to one of the other parties who was willing to take it, the rest consenting; the court refused the application, on the ground that an administration properly granted could not be revoked on a mere suggestion that it would be for the benefit of the estate. (g) has once propounded a will drawn is In a modern case, the attorneys of an executrix had withdrawn How far a from the suit, after propounding an alleged will, and party who suffered a next of kin to take administration; and it was held, under the particular circumstances of the transaction, that the executrix was not barred from calling upon barred. the * next of kin to bring in the administration, and repropounding the alleged will. (h) But in ordinary cases, where the parties, being present, declare they proceed no farther, or duly authorize a practitioner to take that step for them, the court, as far as it legally can, will hold them bound. (i) An executor who has proved a will in common form cannot, as such executor, take proceedings to call in question the validity of that will. He has no right, therefore, to cite the persons interested under it, to propound it in solemn form, or show cause why the probate in common form should not be revoked. The executor of an executor is in the same position in this respect as the original executor. (j) next of kin, contesting a will, of all persons in Where a next of kin is cited by an executor to see a will proCitation by pounded, and contends for an intestacy, he may take out a decree, citing all persons interested under the will "to see proceedings;" for although it is true that the act of the executor, being the appointee of the deceased, "to see would, to a certain extent, bind all persons interested proceedings." under the will, (k) yet some party might, perhaps, at a future time, allege collusion. (1) The decree in such a case should be framed in the largest terms "against all persons in gen terested (g) In the Goods of Heslop, 5 Notes of Cas. 2; S. C. 1 Robert. 457. [See Cole v. Dial, 12 Texas, 100; M'Beth v. Hunt, 2 Strobh. 335. But where the resignation of an administrator is accepted by the probate court, such acceptance amounts to a revocation of his letters; and if there be other administrators the burden of administration is cast upon them. Marsh v. The People, 15 Ill. 284.] (h) Trower v. Cox, 1 Add. 19; [Gray J. in Waters v. Stickney, 12 Allen, 5.] (i) 1 Add. 225; [Cole v. Dial, 12 Texas, 100.] (j) In the Goods of Chamberlain, L. R. 1 P. & D. 316. (k) See Wood v. Medley, 1 Hagg. 657, 658, 667, 668; ante, 335. (1) Colvin v. Fraser, 1 Hagg. 107; ante, 339. eral," and if any of the legatees happen to be dead, care should be taken to cite their representatives. (m) The parties thus cited need not appear at all; and in ordinary cases, if they intervene, when an executor, the person intrusted by the executor to see his will executed, is before the court, they will not be allowed their costs out of the estate. (n) Party in of adminis possession tration not propound till the tilling it in question bound to Where two parties appear before any administration has been granted, both are to propound their interests, and * proceed pari passu. (0) But where an administration has been regularly obtained, the person in possession of it is not bound to propound his interest, the party calling it in question has established his own. (p) his interest has established his own. of probate of will of one falsely supposed When probate had been granted of the will of an officer in the army, on the affidavit of his brother and executor, that Revocation he had received intelligence that the testator had been killed in battle, which he believed to be true, but which was in fact unfounded; the proctor for the executor to be dead. brought and left in the registry the probate, and the court, on motion of counsel, by an interlocutory decree, revoked the same, and declared it to be null and void to all intents and purposes. At the same time the purposed deceased appeared personally, and the judge, at his petition, decreed the original will, together with the probate first cancelled, to be delivered out of the registry to him. (q In the court of appeal, even from a definitive sentence, it is competent to either party, under certain circumstances, When a to bring in a new allegation and support it by proof. (7) gation will (m) 1 Hagg. 109. (n) Colvin v. Fraser, 2 Hagg. 368. (0) Ante, 425, 410. (p) Dabbs v. Chisman, 1 Phillim. 155; Hibben v. Calemberg, 1 Phillim. 166; S. C. 1 Cas. temp. Lee, 655. (q) In the Goods of Napier, 1 Phillim. 83; [ante, 409, note (a); 563, 575, note (o1); post, 586, note (a); Gray J. in Waters v. Stickney, 12 Allen, 4.] (r) The rule is thus stated in 1 Oughton, tit. 318, pl. 1: "In causâ appellationis a new alle sententiâ definitivâ licet tam appellanti, quam parti appellatæ, non allegata (coram judice a quo) allegare, et non probata probare, dummodo non obstet publicatio testium productorum in primâ instantiâ." See Jones v. Goodrich, 5 Moore P. C. 47. [In Harper v. Harper, 1 N. Y. Sup. Ct. 351, 364, which was heard on appeal from the surrogate, upon an issue involving the question of the mental capacity of the testator, Potter J. said: "If it is found that opinions of testamentary capacity are given in the court be allowed But it seems an established rule, that matter which could of appeal. have been pleaded below, and which directly contradicts the plea on which witnesses have been examined below, is not admissible: although matter more generally responsive may with caution be received, especially where the cause has not been properly conducted in the court below. (8) In a modern case (t) the court of delegates, on appeal from the prerogative court of Canterbury, rejected an allegation pleading facts not shown to be noviter ad notitiam perventa. (u) Prohibition. * If the ecclesiastical courts, in the repealing of administration or probates, transgressed the bounds which the law prescribes to them, a prohibition from the temporal courts would be awarded; as in the case above mentioned, where the ordinary had granted a regular administration, and was proceeding to repeal it on insufficient grounds, such as maladministration, (x) or that the letters issued after a caveat entered. (y) But no prohibition to the ecclesiastical courts would issue on suggestion that they were about to repeal an administration granted by surprise; or that they refused to commit the administration to the intestate's next of kin, but were proceeding to grant it to another: for the point, who is in fact next of kin, was of spiritual cognizance, and must have been contested before the spiritual jurisdiction. (z) both ways, or stand in conflict, unless the preponderance is strongly against the finding of the surrogate, the great advantage possessed by him of a personal inspection of the witnesses, and the opportunity of witnessing their manner of testifying, give to that officer such peculiar advantages and opportunities of weighing testimony over that of the reviewing court, that a reversal of his judgment will be rarely ordered."] (s) Price v. Clark, 3 Hagg. 265, note (a); Jones v. Goodrich, 5 Moore P. C. 47. (t) Fletcher v. Le Breton, 3 Hagg. 365. (u) See, also, Craig v. Farnell, 6 Moore P. C. 446. [585] (x) See ante, 582. (y) See ante, 581. (z) Toller, 127; ante, 550. [The office of a writ of prohibition is to prevent the exercise, by a tribunal possessing judicial powers, of jurisdiction over matters not within its cognizance, or to prevent it from exceeding its jurisdiction in matters within its cognizance. It does not lie to restrain a ministerial act, nor can it take the place of a writ of error or other proceeding to review judicial action, or of a suit in equity to prevent or redress fraud. Thomson v. Tracy, 60 N. Y. 31. The action and effect of this writ is fully considered in the above case.] *CHAPTER THE THIRD. OF THE EFFECT OF REVOCATION OF PROBATE, OR LETTERS OF ADMINISTRATION, ON THE MESNE ACTS OF THE EXECUTOR OR ADMINISTRATOR. It remains to consider what effect the revocation of probate or letters of administration has on the intermediate acts of the former executor or administrator. Where the void: grant is The first important distinction on this subject is, between grants which are void, and such as are merely voidable. If the grant be of the former description, the mesne acts of the executor or administrator, done between the grant and its revocation, shall be of no validity. As if administration be granted on the concealment of a will, and afterwards a will appear, inasmuch as the grant was void from its commencement, all acts performed by the administrator in that character shall be equally void; nor can they, although the executor should refuse to act, be made good by relation. (a) So in Graysbrook v. Fox, (b) an action of detinue was brought by an executor against the defendant who had purchased goods belonging to the testator, from one to whom the ordinary had, immediately after the testator's death, and before the executor had proved the will, granted administration; and it (a) Abram v. Cunningham, 2 Lev. 182; S. C. 1 Freem. 445; 1 Vent. 363; 2 Mod. 146; T. Jones, 72; 3 Keb. 725. [See post, 588, note (g); Langworthy v. Baker, 23 Ill. 484. Administration granted upon the estate of a living person under the erroneous belief that he was dead, is void, although he had been absent for more than seven years without being heard from. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; Hooper v. Stewart, 25 Ala. 408; Morgan v. Dodge, 44 N. H. 259; Moore v. Smith, 11 Rich. (S. Car.) 569. "When the presumption arising from the absence of seven years is overthrown by the actual personal presence of the sup- was holden that the executor who sued after probate might recover. So if administration be granted before the refusal of the executor, a sale by the administrator of the testator's effects shall be void, although the executor aforesaid appear and renounce. (c) Or if the executor omit *proving the will, whereby administration is granted to a debtor, the executor may afterwards prove it, and then sue the administrator for the debt, which is not extinguished by the administration. (d) So in a late case, a will was proved by the executor named in it, who after probate sold the goods of the testator; at the time of the sale he had notice of a subsequent will, which was afterwards proved, and the probate of the former will revoked on citation; whereupon the executor under the latter will brought trover against the executor under the former for the goods sold; and it was holden, that the action was sustainable to recover the full value, and that the defendant was not entitled, in mitigation of damages, to show that he had administered assets to the amount. (e) In these cases, when the wrongful executor or administrator has sold the property of the deceased, the rightful representative may either, as in the case just mentioned, maintain trover or detinue; or he may bring assumpsit for the money produced by the sale, as (c) Abram v. Cunningham, ubi supra. (d) Baxter & Bales' case, 1 Leon. 90; Oke v. Needham, 1 Brownl. 79. See, also, Throckmorton v. Hobby, 1 Brownl. 51, as to the invalidity of a release by an admin. istrator under a void grant. (e) Woolley v. Clark, 5 B. & Ald. 744; [Gibson C. J. in Hinkle v. Eichelberger, 2 Penn. St. 483; Kittredge v. Folsom, 8 N. H. 111.] But see ante, 271, note (a), and stat. 20 & 21 Vict. c. 77, s. 77; post, 591, [and note (el).] So where an administratrix sued a debtor of the intestate, and, pending the suit, another by fraud procured a second administration to himself jointly with her, and after judgment released the debtor, on which he brought an audita querela, and in the mean time the second administration was revoked, the release was held of no avail. Anon. Dyer, 339 a; Packman's case, 6 Co. 19 a. [In Gay v. Minot, 3 Cush. 352, a will was proved before a judge of probate who was interested in the case, being indebted to the testator on a promissory note secured by mortgage. The executor afterwards made a bona fide assignment of such note and mortgage and received the full amount due thereon, and thereupon presented the will a second time to the same judge of probate, who approved and allowed it. It was held that the first probate was void on account of the interest of the judge, and that it was incapable of being made good by confirmation, waiver, or ratification of those interested; that the executor derived no authority under such probate, and was not authorized thereby to assign the note and mortgage; that such assignment was irregular and effected no change of ownership, but left the judge interested in the case as before; and, consequently, that the second probate was equally void with the first. See ante, 292, note (p); post, 591, note (e1).] |