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Where a next of kin is cited by an executor to see a Will Citation by

next of kin, propounded, and contends for an intestacy, he may take out contesting a

Will, of all a decree, citing all persons interested under the Will “ to see proceedings;" for although it is true, that the act of the ested to see

proceedings." executor, being the appointee of the deceased, would, to a certain extent, bind all persons interested under the Will (k), yet some party might, perhaps, at a future time, allege collusion (?). The decree in such a case should be framed in the largest terms, "against all persons in general,” 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 entrusted by the testator to see his Will executed, is before the Court, they will not be allowed their costs out of the estate (n).

Where two parties appear before any administration has Party in posbeen granted, both are to propound their interests, and pro- ministration

session of adceed pari passu (o). But where an administration has been not bound to

propound his regularly obtained, the person in possession of it is not bound interest till the to propound his interest, till the party calling it in question in question has

párty calling it has established his own (p).

established his own.

When probate had been granted of the Will of an officer Revocation of

probate of in the army, on the affidavit of his brother and executor, that Will of one he had received intelligence that the testator had been killed falsely sup:

posed to be in battle, which he believed to be true, but which was in fact dead. unfounded; the proctor for the executor 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 supposed deceased appeared personally, and

(k) See Wood v. Medley, 1 (n) Colvin v. Fraser, 2 Hagg. 368. Hagg. 657, 658, 667, 668. Ante, (0) Ante, p. 372.

(v) Dabbs v. Chisman, 1 Phil(1) Colvin v. Fraser, 1 Hagg. lim. 155. Hibben v. Calemberg, 107. Ante, p. 304.

1 Phillim. 166. S. C. 1 Cas. temp. (m) 1 Hagg. 109.

Lee, 655.

p. 302.

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).

When a new allegation will be allowed in the Court of Appeal.

In the Court of Appeal, even from a definitive sentence, it is competent to either party, under certain circumstances, to bring in a new allegation and support it by proof (r). But it seems an established rule, that matter which could 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

s 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, transgress the bounds which the law prescribes to them, a prohibition from the Temporal Courts shall be awarded ; as in the case above mentioned, where the Ordinary has granted a regular administration, and is 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

(9) In the goods of Napier, 1 Goodrich, 5 Moo. P. C. 47. Phillim. 83.

(8) Price v. Clark, 3 Hagg. 265, (r) The rule is thus stated in 1 note (a). Jones v. Goodrich, 5 Moo. Oughton, tit. 318, pl. 1. “In causâ P. C. 47. appellationis a sententiâ definitiva (t) Fletcher v. Le Breton, 3 licet tam Appellanti, quam parti Hagg. 365. Appellatae, non allegata (coram (u) See also Craig v. Farnell, 6 judice a quo) allegare, et non pro

Moo. P. C. 446. But see stat. 3 & bata probare, dummodo non obstet 4 W. IV. c. 41, s. 8, ante, p. 502. publicatio testium productorum in (2) See ante, p. 514. prima instantiâ." See Jones v. (y) See ante, p. 513.

shall issue on suggestion, that they are 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, is of spiritual cognizance, and must be contested before the spiritual jurisdiction (2).

() Toller, 127. Ante, p. 477.

CHAPTER THE THIRD.

OF THE EFFECT OF REVOCATION OF PROBATE, OR LETTERS

MESNE ACTS

OF THE EXE

Where the grant is void :

a

OF ADMINISTRATION, ON THE

CUTOR 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.

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 commence-
ment, 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 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 afore-
said appear and renounce (c). Or if the executor omit

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(a) Abram v. Cunningham, 2 Lev. 182, S. C. 1 Freem. 445. 1 Vent. 363. 2 Mod. 146. T. Jones, 72. 3 Keb. 725.

(6) Plowd. 276.

(c) Abram v. Cunningham, ubi supra.

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 hoden, that the action was sustainable to recover the full value, and that the defendant was not entitled, in mitigation of dimages, 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 represèntative 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 so much money received to his use, as executor or administrator; for the plaintiff may waive the tort, and suppose the sale made with his consent (f).

It should seem, however, that, as between the rightful

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(d) Baxtr and Bales' case, 1 Leon. 90. Oke v. Needham, 1 Brownl. 79. See also Throckmorton v. Hobly, 1 Brownl. 51, as to the invalidty of a release by an administrata under a void grant.

(e) Woolly v. Clark, 5 B. & A. 744. But se ante, p. 237, note (a). So where anadministratrix sued a debtor of the intestate, and, pending the suit, another by fraud procured a second administration to himself join:ly with her, and after judgment released the debtor, on which he brought an audita querela, and in the mean time the second adminstration was revoked, the release was held of no avail :

Anon. Dyer, 339, a. Packman's case, 6 Co. 19 a.

(f) Lamine v. Dorrell, 2 Lord Raym. 1216. Where an auctioneer, employed by a supposed executrix, sold goods of the testator, but, before payment, the real executrix claimed the money from the buyer, it was held that the auctioneer could not afterwards maintain an action against the buyer, though the latter expressly promised to pay on being allowed to take away the goods : Dickenson v. Naul, 4 B. & Adol. 638. See also Crosskey r. Mills, 1 Crompt. M. & R. 298. Allen v. Hopkins, 13 M. & W. 94.

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