EXECUTORS AND ADMINISTRATORS.

§ 338. THE evidence, under this title, relates to the official character of the parties, and to the cases and manner in which it must be proved. Where the executor or administrator is plaintiff, and sues upon a contract made with the testator, or for any other cause of action accruing in his lifetime, he makes profert of the letters testamentary, or of the letters of administration; for he must declare in that character, in order to entitle himself upon the record, to recover judgment for such a cause; and if the defendant would controvert the representative character of the plaintiff, in such case, by reason of any extrinsic matter, not appearing on the face of the letters, such as the want of bona notabilia, or the like, he must put it in issue by a plea in abatement, or, as it seems, by a plea in bar; 2 and cannot contest it under the general issue, this being a conclusive admission of the plaintiff's title to the character in which he sues. But in regard to causes of action accruing subsequent to the decease of the testator or intestate, such as in trover, for a subsequent con

1 1 Chitty on Plead. 420. The practice in the United States, in this respect is not uniform; the profert, in some of the States, being omitted. Langdon v. Potter, 11 Mass. 313; Champlin v. Tilley, 3 Day, 305; Amer. Prec. Decl. p. 91; Prettyman v. Waples, 4 Harringt. 299; Chapman v. Davis, 4 Gill, 166; Thames v. Richardson, 3 Strobh. 484. The rule, requiring profert of letters testamentary, is itself an exception from the general rule, that profert is required of deeds only. Gould on Pleading, p. 442, § 43.

2 Langdon v. Potter, 11 Mass. 313, 316; 1 Chitty on Plead. 489, [358]; 1 Saund. 274, note (3), by Williams.

8 Loyd v. Finlayson, 2 Esp. 564; Marshfield v. Marsh, 2 Ld. Raym. 824; Gidley v. Williams, 1 Salk. 37, 38; 5 Com. Dig. tit. Pleader, 2 D. 10, 14; Watson v. King, 4 Campb. 272; Stokes v. Bate, 5 B. & C. 491; Yeomans v. Bradshaw, Carth. 373; Hilliard v. Cox, 1 Salk. 37.

version of his goods, or in assumpsit, for his money subsequently received by the defendant, and the like, though it is always proper for the plaintiff to sue in his representative character, wherever the money, when recovered, will be assets in his hands, yet it is not always necessary that he should do so. For where the action is upon a personal contract made with himself, respecting the property of the deceased, or is for a violation of his actual possession of the assets, he may sue either in his private or in his representative capacity. But in other cases, where the cause of action accrued in his own time, he must sue in his representative capacity, and must prove this character, under the general issue, which raises the question of title.2

§ 339. The proof of the plaintiff's representative character, is made by producing the probate of the will, or the letters of administration, which, primâ facie, are sufficient evidence for the plaintiff, both of the death of the testator or intestate, and of his own right to sue. Where an oath of office and the giving of bonds, are made essential, by statute, to his right to act, these also must be proved. The probate itself is the only legitimate ground of the executor's right to sue for the personalty; and is conclusive evidence, both of his appointment, and of the contents of the will; and if granted at any time previous to the declaration, it is sufficient, for the probate relates back to the death of the testator. The same

1 Hunt v. Stevens, 3 Taunt. 113, 115; Hollis v. Smith, 10 East, 293; Blackham's case, 1 Salk. 290; 2 Saund. 47 c, note by Williams; Heath v. Chilton, 12 M. & W. 632. The allegation of his representative character, in these two cases, will be regarded as surplusage, and needs not be proved. Crawford v. Whittal, 1 Doug. 4 n. See also Powley v. Newton, 6 Taunt. 453, 457; Clark v. Hougham, 2 B. & C. 149.

2 Smith v. Barrow, 2 T. R. 476, 477, per Ashhurst, J.; Crawford v. Whittal, 1 Doug. 4, note (1); Hunt v. Stevens, 3 Taunt. 113.

3 In an action on a promissory note made payable "to the executors of the late W. B.," it was held necessary for the plaintiffs to produce both the probate of the will and the grant of administration annexed to it. Hamilton v. Aston, 1 C. & K. 679, per Rolfe, B.

4 Smith v. Milles, 1 T. R. 475, 480; Woolley v. Clark, 5 B & Ald. 744 ;

principle governs in the case of an administrator; whose title, though it does not exist until the grant of administration, relates back to the time of the death of the intestate, so as to enable him to maintain an action for an injury to the goods of the intestate, or for the price, if they have been sold by one who had been his agent.1 But the defendant may show that the probate itself, or the letter of administration, is a forgery;2 or that it was utterly void, for want of jurisdiction over the subject, by the Court which granted it; whether because the person was still living, or because he had no domicil within the jurisdiction of the Court, where this is essential; or for any other sufficient

cause.

§ 340. The plaintiff's character as administrator may also be shown by an exemplified copy of the record of the grant of the letters, or by a copy of the book of Acts or original minutes of the grant, as has already been stated. If letters of administration have been granted to the wrong person they are only voidable, and liable to be repealed; but if granted by the wrong Court, they are void.

§ 341. Where the plaintiff is bound to prove his representative character of executor, under the general issue, as part of his title to sue, and it appears that there are several executors, some of whom have not joined in the suit, it is fatal, though all have not proved the will; unless they have renounced the trust. And where the plaintiff sues as

Wankford v. Wankford, 1 Salk. 299, 301, 306, 307; Loyd v. Finlayson, 2 Esp. R. 564; 1 Com. Dig. 340, 341, tit. ADMINISTRATION, B. 9, 10; Dublin v. Chadbourn, 16 Mass. 433. The probate will be presumed to have been rightly made. Brown v. Wood, 17 Mass. 68, 72; ante, Vol. 1, § 550. 1 Foster v. Bates, 12 M. & W. 226; Tharpe v. Stallwood, 6 Scott, N. R.

715.

2 Bull. N. P. 247; Chichester v. Phillips, T. Raym. 405.

8 Bull. N. P. 143, 247; Noell v. Wells, 1 Lev. 235, 236.

4 Harvard College v. Gore, 5 Pick. 370.

5 Ante, Vol. 1, § 519.

6 Munt v. Stokes, 4 T. R. 565; per Buller, J.

administrator de bonis non, it is sufficient to prove the grant of administration to himself, which recites the letters granted to the preceding administrator, without other proof of the latter.1

§ 342. If the action is upon promises made to the deceased, to which the statute of limitations is pleaded, the declaration, according to the English practice, will not be supported by evidence of a new promise made to the executor or administrator; but in the American Courts this rule is not universally recognized; and where the plea is actio non accrevit infra sex annos, the weight of argument seems in favor of admitting the evidence.2 In both countries, leave will be granted to amend the declaration, by adding a new count on a promise to the executor.

§ 343. If the defendant is sued as executor, his representative character may be shown, either by the evidence already

1 Catherwood v. Chabaud, 1 B. & C. 155.

2 2 Saund. 63, f. g. note, by Williams. In Green (or Dean) v. Crane, 2 Ld. Raym. 1101, 6 Mod. 309, 1 Salk. 28, which is the leading case on this subject, the plea was non assumpsit infra sex annos, and to this issue it was held that the evidence of a new promise to the executor would not apply. So in Hickman v. Walker, Willes, 27. In Sarell v. Wine, 3 East, 409; Jones v. Moore, 5 Binn. 573, and Beard v. Cowman, 3 Har. & McHen. 152, the form of the issue is not stated. In Fisher v. Duncan, 1 Hen. & Munf. 563, and in Quarles v. Littlepage, 2 Hen. & Munf. 401, the action was against the executor; and the point in question was therefore not before the Court. On the other hand, in Heylin v. Hastings, Carth. 470, it was held, upon the issue of non assumpsit infra sex annos, that evidence of a new promise to the executor within six years was admissible, as well as sufficient to take the case out of the statute. And such also is the practice in Massachusetts, and in Maine. Baxter v. Penniman, 8 Mass. 133, 134; Emerson v. Thompson, 16 Mass. 428; Brown v. Anderson, 13 Mass. 201; Sullivan v. Holker, 15 Mass. 374. Where the issue is actio non accrevit infra sex annos, the technical reason for not admitting evidence of an acknowledgment or promise to the executor entirely fails; and indeed, in any case, a promise to the executor amounts only to an admission, that the debt, due to the testator, has never been paid, but is still subsisting, and therefore is not barred by the statute of limitations. See 5 Binn. 582, 583, per Brackenridge, J.; Angell on Limitations, p. 278.

mentioned as proof of that character in the plaintiff,1 or by proof of such acts of intermeddling in the estate, as estop him to deny the title, constituting him what is termed an executor de son tort. Very slight acts of intermeddling have formerly been held sufficient for this purpose; but the material fact for the Jury to find, is, that the party has intruded himself into the office of executor; and this may well be inferred from such acts as are lawful for an executor alone to do, such as taking and claiming possession of the goods of the deceased, or selling them, or converting them to his own use; collecting, releasing, or paying debts; paying legacies; or any other acts, evincing a claim of right to dispose of the effects of the deceased. But if the acts of intermeddling appear to have been done in kindness, merely for the preservation of the goods or property, or for the sake of decency or charity, such as, in the burial of the dead, or the immediate support and care of his children, or in the feeding and eare of his cattle; or, as the servant of one having the actual custody of the goods, and in ignorance of his title; or, in execution of orders received from the deceased as his agent in favor of the vested rights of a third person; or the like; the party will not thereby be involved in the responsibilities of an executorship. So, if he, in good faith, sets up a colorable title to the possession of the goods of the deceased, though he may not be able to establish it as a completely legal title

1 After notice to produce the probate of the will, an office copy, and an extract from the Act-book, have been held admissible, without proof that the probate was in the defendant's possession, or of the signature of the registrar. Waite v. Gale, 9 Jur. 782.

2 Williams on Executors, p. 136-146; 1 Dane's Abr. ch. 29, art. 6; Givers v. Higgins, 4 McCord, 286; Toller on Ex'rs, p. 37-41. But if the agent after the decease of his principal, continues to deal with the property on his own responsibility, or as the agent of another, he may be charged as executor. Cottle v. Aldrich, 4 M. & S. 175; 1 Stark. 37, S. C.; Turner v. Child, 1 Dever. 331. See also Mitchell v. Lunt, 4 Mass. 654, 658; Hobby v. Ruel, 1 C. & K. 716. So, if the agent continues to act as such, after the death of his principal, and in the belief that he is still alive, he has been held liable to a creditor of the deceased, as executor de son tort. White v. Maun, 13 Shepl. 361.