thereupon, and that the proceedings shall be continued in the name of the new executor or administrator in like manner as if the proceeding had been originally commenced by or against such new executor or administrator, but subject to such conditions and variations, if any, as such court may direct." (f1) Audita querela, where pro bate or ad ministration repealed ment. If an executor or administrator, before the repeal of the probate or administration, obtain a judgment for a debt due to the intestate, he is not entitled after the repeal to take out execution, but the defendant may avoid the judgment by an audita querela. (g) So where judgment after judg- was obtained by an administrator, and afterwards the administration was revoked, and the plaintiff proceeded and took the defendant in execution, the court, upon motion, held the execution* void, and that the defendant ought to be discharged. (h) But where in trover, after verdict, and before the day in bank, the defendant pleaded that the plaintiff's letters of administration were revoked, and administration committed to another, it was held no plea; for that it was a matter only wherein the defendant shall be aided by audita querela. (i) So on affidavit to stay execution on a judgment recovered by an administrator, because the letters of administration were repealed before the judgment entered, it was held that the matter did not legally come before the court, and that the defendant ought to bring an audita querela. (k) The administrator under a Where the ordinary grants administration, and afterwards there appears to be an executor, if the administrator has paid debts, legacies, or funeral expenses, which the law will force the executor to pay, the administrator, in an action against him by the executor, shall recoup so much in damages, because he was compelled to pay it, and the true executor has no prejudice by it, forasmuch as he void grant shall be re couped in damages for debts paid, &c. in the (f1) [See post, 594, and note (n). Where one, in the capacity of executor or administrator, commences an action for the benefit of the estate, he does not become personally liable for costs, because he is removed from the trust before judgment. Baxter v. Davis, 3 Abb. Pr. (N. S.) 249.] (g) Dr. Drury's case, 8 Co. 144 a; Turner v. Davis, 2 Saund. 148; S. C. 1 Mod. 62; 2 Keb. 668. See, also, Beck's case, 1 Brownl. 29. (h) Barnehurst v. Yelverton, Yelv. 83 ; S. C. 1 Brownl. 91. (i) Ket v. Life, Yelv. 125. (k) Patnell v. Brook, Style, 417. As to the cases where, according to the modern practice, the courts will relieve the defendant in a summary way on motion, without driving him to an audita querela, see 2 Saund. 148 a, b, note to Turner v. Davies. course of his admin Vict. c. 77, himself would have been bound to pay it. (7) So it was holden in equity, where a widow possessed herself of the istration. personal estate as an executrix, under a revoked will, and paid debts and legacies, but had no notice of revocation, that she should be allowed those payments. (m) And by stat. 20 & 21 20 & 21 Vict. c. 77, s. 77, it is expressly enacted, "that the execu- s. 77. tor or administrator who shall have acted under any such revoked probate or administration may retain and reimburse himself in respect of any payments made by him which the person to whom probate or letters of administration shall be afterwards granted might have lawfully made." (m1) A defendant sued as administrator may plead, that, pendente brevi, administration was committed to another. (n) With re (1) Peckham's case, cited Plowd. 282; Bacon Abr. Exors. E. 13; and see the authorities mentioned, ante, 270, 271, with respect to an executor de son tort. But the contrary seems to have been holden in Woolley v. Clarke, 5 B. & Ald. 744; ante, 271, note (a); 578, [588, note (g).] (m) Hele v. Stowel, 1 Chanc. Cas. 126; Bac. Abr. Exors. E. 13. (m2) [An executor obtained letters testamentary on a will duly proved, which, a caveat having been entered against it, was afterwards finally adjudged not to be the will of the deceased. It was held that it was the duty of the executor to support the first probate, believing it to be genuine, and that he was entitled to retain out of the estate the expenses incurred in litigating the question of the validity of the will, the amount of funeral expenses, and also the usual commissions for managing the estate while in his hands. Bradford v. Boudinot, 3 Wash. C. C. 122. See post, 1860, note (k). An administrator who in good faith litigates a claim against his intestate, is entitled to credit, in his administration account, for the costs and expenses of the litigation, including the amount paid for counsel fees; and also an allowance for his time and trouble. Ammon's Appeal, 31 Penn. St. 311. See post, 1860, note (k). Where a will was proved in common form, and no executor being named therein, administration with the will annexed was granted, it was held that the grant of administration was not annulled by a subsequent revocation of probate. Floyd v. Herring, 64 N. Car. 409. An executor who has been removed must pay or deliver the property of the estate to his successor in the trust, not to a receiver. Schlecht's Estate, 2 Brews. (Penn.) 397.] (n) Bro. Administrator, pl. 3; ante, 592; [Morrison v. Cones, 7 Blackf. 593; Broach v. Walker, 2 Geo. 428; Hall v. Pearman, 20 Texas, 168; Cogburn v. McQueen, 46 Ala. 551. When an administrator, who, as such, is defendant in a suit, has been removed from the office, and another has been appointed in his place and undertaken the defence, the former ceases to be a party to the suit as absolutely as if he were dead, and the action must either be prosecuted against the new representative of the estate, or it will be discontinued. The suit is, in its nature, a proceeding against the estate of the deceased. When the administrator is displaced, he ccases to have either interest in or power over that estate, and a judgment, to reach the estate, must be rendered against the party entitled to represent it. The judgment, also, must be for a sum to be levied of the goods and estate of the deceased, in the hands of the defendant administrator, to be administered. Such a judgment cannot be rendered against one who appears by Proper plea by administrator after administration re spect to the proper plea, in a case where the administration is revoked before the action commenced; the defendant in Garter v. Dee, (o) being sued as administrator, pleaded, that before the date of the writ, his administration was revoked and granted to another. Per Wilde: He ought voked. to have set forth that he had fully administered all the goods in his hands, or else that he delivered them over to the new administrator. (p) If he should be sued as executor de son tort, (q) and has delivered the assets over before action brought, plene administravit seems to be the proper plea. (r) the record not to be administrator. Bell J. in Wiggin v. Plumer, 31 N. H. 251, 266. See Gray C. J. in National Bank of Troy v. Stanton, 116 Mass. 438; Taylor v. Savage, 1 How. (U. S.) 282; S. C. 2 How. (U. S.) 395; Buckingham v. Owen, 6 Sm. & M. 502. By provision of statute, in Massachusetts, when an executor or administrator dies or is removed from office during the pendency of a suit in which he is a party, the suit may be prosecuted by or against the administrator de bonis non in like manner as if it had been originally commenced by or against such last administrator. Genl. Sts. c. 128, § 12. The mode of proceeding in such case is prescribed by Genl. Sts. c. 128, § 11. By § 13 of the same chapter, provision is made for the case of the death or removal of an executor or administrator after judgment is rendered either for or against him. See Brown v. Pendergast, 7 Allen, 427 ; Grout v. Chamberlin, 4 Mass. 611, 613; post, 1883, note (g1). Under the statutes of New York an administrator, whose letters have been revoked by the surrogate, can be cited to account, but is not subject to the orders of the surrogate otherwise than in the proceedings for accounting. Lawrence's case, 1 Tuck. (N. Y.) Sur. 68.] (0) 1 Freem. 13. (p) See, also, Palmer v. Litherham, Latch, 267; Lawson v. Crofis, 1 Keb. 114. (9) See Turner v. Davies, 1 Mod. 63, by Kelynge C. J. (r) See ante, 268. *BOOK THE SEVENTH. OF THE STAMP DUTIES ON PROBATES, AND ON LETTERS OF ADMINISTRATION. By the statute 55 Geo. 3, c. 184, the stamp duties imposed on probates of wills, and letters of administration by the 48 Geo. 3, c. 149, are repealed, and the following stamp duties are imposed: On probates of wills and letters of administration with the will annexed, to be granted in England: Where the estate and effects for or in respect of which such probate or letters of administration shall be granted, exclusive of what the deceased shall have been possessed of, or entitled to, as a trustee for any other person or persons, and not beneficially, shall be On letters of administration, without a will annexed, to be granted in England. Where the estate or effects for or in respect of which such letters of administration shall be granted, exclusive of what the deceased shall have been possessed of or entitled to, as a trustee (a) for any other person or persons, and not beneficially, shall be |