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He canunt maintain actions before probate :

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Court: for, as it has already appeared, the fact of a particular person having been appointed executor to another, can be proved by no other means, either in courts of law or equity (g). If the executor died after the assignment or assent, without having obtained probate, letters of administration cum testamento annexo must be produced instead.

An executor cannot maintain actions before probate unless such as are founded on his actual possession: for in actions where he sues in his representative character, he may

be compelled, by the course of pleading, to produce the letters testamentary at the trial, or in some cases, by an application to the Court, at an earlier stage of the cause (h): and in those actions where he sues in his individual capacity, relying on his constructive possession as executor, although he does not name himself as executor in his declaration, nor make any profert, yet, generally speaking, it will be necessary for him to prove himself executor at the trial (i), which he can only do by showing the probate. For example, where an executor brings trespass de bonis asportatis, or trover, upon his testator's possession, and a conversion in his lifetime, he necessarily describes himself as executor in his declaration, and his character as such may be traversed: And where the goods were taken or converted after the testator's death, although, since the property in the goods draws to it a possession in law, he may declare on this constructive possession of his own, notwithstanding he has never had actual possession, without naming himself executor, still, if his title to the property should be put in issue by the pleadings, he must show that title as executor at the trial, by producing the probate, in order to prove his constructive possession (k).

(g) See Pinney v. Pinney, 3 B. & C. 335, post, p. 260.

(h) Webb v. Adkins, 14 C. B. 401, See post, Pt. V. Bk. 1. Ch. I.

(0) Blainfield v. March, 7 Mod. 141, by Holt, C. J. S. C. 1 Salk.

285. Holt, 44. 2 Saund. 47, z. note to Wilbraham v. Snow.

(k) Hunt v. Stevens, 3 Taunt. 113: And any defect in the probate, e. g. the want of a proper stamp, will be as fatal as the nonproduction : Ibid.

he has had

In cases, indeed, where the executor has actually been except where possessed of the property which is the subject of the action, actual possesbefore it came to the hands of the defendant, such possession sion : is, according to the general principle, of itself sufficient, without showing any title, to establish a prima facie case, either in replevin, trover, or trespass, when the property has come to the defendant's hands, or been converted, by tort (I), or in debt or assumpsit, when the defendant has acquired it by a contract with the executor (m). In such case it is evident that the actual possession of the plaintiff is a primà facie title, without reference to the circumstances under which such possession has been obtained, whether as executor, or by any other means (n). Accordingly, in a modern case (o), a sheriff's officer had seized and sold a pony, claimed by the plaintiff, a widow, under an execution against a third party, who lodged with her: The action was brought against the officer, for money had and received, to recover the amount of the sale money : It appeared that the pony had been bought by the lodger for the plaintiff with money provided by her, but at that time, and for several months afterwards, her husband was alive : After his death, however, the plaintiff fed the pony, and paid bills for its hay and shoeing, though it was used as generally by the lodger as by her: No probate of Will or letters of administration were

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(1) Wentw. Off. Ex. 84, 14th edit. Plowd. 281, in Graysbrook

Fox. See Elliott v. Kemp, 7 M. & W. 306, 312,

314. (m) Wentw. Off. Ex. 81, 85, 14th edition.

(n) On this principle in a late case, where three out of four executors made a sale of the goods of their testator, it was held that the three might sue without naming themselves executors, and without joining the fourth executor; although the goods were sold as the goods of the testator : Brassington r. Ault, 2 Bing. 177. The dis

tinction above pointed out might
seem unnecessarily laboured in the
present Treatise, had it not been
laid down in previous works on the
same subject as an absolute pro-
position that an executor may
maintain actions of trespass or
trover, before probate, for such of
the effects of the testator as never
came to his actual possession, taken
or converted after the testator's
decease. See Toller, 47. 2 Roberts
on Wills, 172, 173.

(0) Oughton v. Seppings, 1 B.
& Adol. 241.

nor can his grantee :

a

produced : It was objected, that, assuming even that the plaintiff might have maintained trespass for the taking of the pony, she could not maintain this action, which was founded on a contract; and that the 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 wrong doer, she might waive the tort, and maintain this action to recover the money produced by the sale (p).

And the law is the same with respect to the grantee of the executor. Accordingly, in an 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 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 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 (r). Thus where he sues as executor, he may commence the action

but he may comience an action before probate :

(p) See also Accord. White r'. Mullett, 6 Exch. 713, 715; and see further Waller r. Drakeford, 1 E. & B. 749.

(9) Pinney v. Pinney, 8 B. & C. 335.

(r) Wills v. Rich, 2 Atk. 285. Easton v. Carter, 5 Exch. 8, 14.

before probate, (8), and arrest a debtor to the estate (t): for, and arrest the

dtiendant : 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 (u). 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 (x), and if such an issue is joined that it becomes in some cases

he may avow necessary for him to prove his title by executorship, (as for or declar leinstance, if non tenuit should be pleaded), it will be sufficient fore probate. 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 (y).

(s) 1 Roll. Abr. 917, A. 2. Mar- volved in the decision of it, as tin o. Fuller, Comb. 871. Wank- reported in Skinner, p. 88, (where ford v. Wankford, 1 Salk. 302, 303. the word “not” seeins omitted by

(t) Admitted by Saunders, C. J. an error of the press), and in in Duncomb v. Walter, Skin. 87. Shower; nor is it easy to compre

(u) Plowden, 281. 1 Roll. Abr. hend on what ground the doctrine 917, A. 2. But this relation, it can rest. Lord Holt, in 1 Salk. has been said, shall not prejudice 110, said he was not satisfied with a third person: and therefore where the judgment; but he probably a debtor, after being arrested by referred to the relation of the an executor before probate, and bankruptcy merely. In this latter set at large on bail, paid a debt to respect, however, Duncomb v. WalJ. S., the debtor was adjudged, ter has been confirmed by the upon that principle, it is reported, modern decisions: See Rose v, not to be a bankrupt from the time Green, 1 Burr, 437.

Barnard 1". of the arrest, so as to invalidate Palmer, 1 Campb. 509. Eden. the payment: Duncomb v. Walter, B. L. 36. 3 Lev. 57. S. C. Skin. 22. T. (x) Wankford v. Wankford, 1 Raym. 479. 2 Show. 253. 1 Freem. Salk. 307, per Holt, C. J. White539. S. C. in error. Ventr. 370. head v. Taylor, 10 A. & E. 210. Skin. 87. And see Toller, 471. (y) It is said an executor may Wentw. Off. Ex. note by Curson to maintain a quare impedit, if he be p. 84, 14th edition. But the case entitled to the next presentation of Duncomb v. Walter is very

ob- of a church, which became void, scurely reported; and the point without showing forth the Will: above stated is not necessarily in- Wentw. Off. Ex. 84, 14th edition.

he may file a So an executor, before probate, may file a bill in equity, bill before pro- (in which bill, however, he must allege that he has proved :

the Will) (z), and the subsequent probate makes the bill a and take out a good one, if obtained at any time before hearing (a). And a

. commission of bankruptcy :

commission of bankrupt may be taken out by an executor

before he has obtained probate (6). he may be On the other hand, if he have elected to administer, he sued before probate :

may also, before probate, be sued at law or in equity by the 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 (e). 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 (d). 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 (e).

2

But if by the course of the plead- to be heard : Simons v. Milman,
ings it should become a part of his 2 Sim. 241. See also Jones v.
case to prove his title, he certainly Howells, 2 Hare, 353, per Wigram,
can only do so by producing the V. C. Post, Pt. v. Bk. 1. Ch. II.
probate; and it may be doubtful (6) Ex parte Paddy, 3 Madd.
whether the passage above cited is, 241. S. C. 1 Buck. 235. Rogers
in any case, law, inasmuch as it V. James, 7 Taunt. 147. S. C. 2
should seem that executors must Marsh. 425.
show their title in the declaration (c) Wentw. Off. Ex. 86, 87, 14th
in quare impedit.

edition. Plowd. 280. Toller, 49. (z) Humphreys v. Ingledon, 1 P. It is clear

upon the grounds which Wms. 753.

have already been stated, (see p. ( (a) Humphreys r. Humphreys, 244) that if he has administered, 3 P. Wms. 351. And in the case he will be liable, not only before of Patten, Executrix, v. Panton, in probate, but though he should rethe Exchequer, 1793, it was said, fuse to take probate, and adminisarguendo, that it had been deter- tration should be committed to mined by that Court about three another. See the observations of years ago, that it is sufficient if the Best, C. J., in Douglas v. Forrest, probate were obtained at

any

time 4 Bingh. 704. before hearing : 3 Bac. Abr. 53, by (d) Blewitt v. Blewitt, 1 Younge, Gwillim, Executors (E.) 14. But 541. a plea that the executor has not (e) Dulwich College v. Johnson, obtained probate was lately allowed, 2 Vern. 49. See also Phipps v. on the ground that the cause must Steward, 1 Atk. 285. Fonbl. Treat. be considered as having come on on Eq. Bk. 4, Pt. 2, c. 1, s. 2, n. b.

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