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Where the grant is voidable.

a

representative and a person to whom the executor or administrator under a void probate, or grant of letters, has aliened the effects of the deceased, the act of alienation, if done in the due course of administration, shall not be void. Thus,

, , in the case of Grayebrook v. Fox, above mentioned, it was laid down by the Court, that if the sale had been made te discharge funeral expenses or debts, which the executor a administrator was compellable to pay, the sale would have been indefeasible for ever (g).

If the grant were only voidable, then another distinctim arises between the case of a suit by citation, which is to countermand or revoke a former probate or former letters of administration, and an appeal, which is always to reverse a former sentence (h). In case of an appeal all intermediate acts of the executor or administrator are ineffectual; because the appeal suspends the former sentence (i); and on its rerersal it is as if it had never existed (k).

But if the suit be by citation, and the grant of administration be voidable only, (as where it has been grantıd to a party not next of kin) (1), or on the refusal of an executor who has before administered (m), or non vocatis jure wcandis, without citing the necessary parties (n), all lawful æts done by the first administrator shall be valid : as a bonú fide sale or a gift by him of the goods of the intestate (o), ad such gift shall be available, even if it were with intento defeat the second administrator, or were made pendent lite, on the citation (p); although by stat. 13 Eliz. c. 5, i be void

(9) Plowd. 282, 283. See ante, judgment of Ashurst, 1: See also p. 238. Coulter's case, 5 Co. 30, b. Thomas v. Butler, 1 Vatr. 219. Parker v. Kett, 1 Lord Raym. 661. (1) Ante, p. 511. S. C. 12 Mod. 471.

(m) Ante, p. 243. (h) Packman's case, 6 Co. 18, b. (n) Ante, p. 510. ante, p. 493.

(0) Wadesworth v. Andrews, (i) Price v. Parker, 1 Lev. 158. cited Dyer, 166, b. in narg

(k) 6 Co. 18, b. Semine v. Se- (p) Bro. Abr. Admin:stritor, pl. mine, 2 Lev. 90. Godolph. Pt. 2, 33. Packman's case, 6 Co 18, b. c. 31, s. 5. Digby v. Wray, 3 S. C. Cro. Eliz. 459. S. C nom. Bac. Abr. 51, Exors. (E. 13). Allen Wilson v. Pateman, Moor 396. v. Dundas, 3 T. R. 129, in the Godolph. Pt. 2, c. 31, s. 5. A dis

as to a creditor (9). Again, if the administration be granted on condition, all the acts which the administrator does before the breach of the condition are good: so that the subsequent administrator cannot avoid any gifts or sales before such breach made by such conditional administrator (r). So if administration be committed to a creditor, and after repealed at the suit of the next of kin, the creditor shall retain against the rightful administrator, and his disposal of goods, even pending his citation, till sentence of repeal, is good (s). And where there was a citation to repeal administration, but the grant was affirmed, upon which an appeal was sued, and both sentences repealed, an assignment of a lease made by the first administrator in the mean time was held good (t): for the repeal was merely of the sentence in the citation, and all one as if the administration had been avoided in the suit upon the citation.

But where an administrator sold a term charged with a trust, in trust for himself, although the administration was revoked on a suit by citation, and not on an appeal, the assignment was decreed to be set aside (u).

It may perhaps be laid down as a general test, whether an Test whether administration is void or voidable, that, where the grant is in void or void

administration derogation of the right of an executor, it is void; but where able.

tinction was taken by Trevor, C. J., in an anonymous case in Comyns's Reports, p. 150, (which was overruled in Allen v. Dundas, 3 T. R. 125,) between an executor and an administrator, from which it would result that the acts of an executor under a voidable probate, are altogether invalid. There seems no principle on which such a doctrine can rest : but the question is not perhaps of any importance; inasmuch as the case of a merely voidable probate can but rarely occur; and when it does, e. g. where the probate is prerogative instead of diocesan, the doctrine that the acts of an executor before probate are

valid, would, it should seem, in
almost every case, prevent the point
from arising

(9) 6 Co. 18, b. Treat. on Eq.
Pt. 2, c. 1, s. 5.

(r) 6 Co. 19, a. Godolph. Pt. 2.
c. 31, s. 5.

(s) Blackborough v. Davis, 1
Salk. 38. S. C. 1 Ld. Raym. 694.
Com. 96. 1 P. Wms. 43. 12
Mod. 615.

(1) Semine v. Semine, 2 Lev. 90.
S. C. T. Raym. 224, nomine Syms
v. Syms.

(u) Jones v. Waller, 2 Chanc. Cas. 129. 11 Vin. Abr. 118. See also Johnson v. Chester, Finch. 430.

the administration is granted by the proper jurisdiction, and is only in derogation of the right of the next of kin, or

residuary legatee, it is merely voidable (x). Payment to an It must be observed, that whether the probate or letters of executor or administrator administration be void or voidable, if the grant be by a Court under a void probate or ad- of competent jurisdiction, a boná fide payment to the exeministration is cutor or administrator, of a debt due to the estate, will be a a discharge.

legal discharge to a debtor. With respect to payments to an administrator, in a case as early as the time of Charles II., the adıninistrator of the lessee paid rent to the administrator of the lessor; the latter administration was repealed, and granted to D., who sued at law as well for the rent paid to the former administrator of the lessor, as for rent since due, and got a verdict and judgment against the administrator of the lessee for the same; but the defendant was relieved in equity as to the rent paid, because he had paid it to the visible administrator (y). And in a modern case, it was held that payment to an executor, who had obtained probate of a forged Will, was a discharge to the debtor, notwithstanding the probate was afterwards declared null in the Ecclesiastical Court (z); on the principle that if the executor had brought an action against the debtor, the latter could not have controverted the title of the executor, as long as the probate was unrepealed ; and the debtor was not obliged to wait for a suit, when he knew that no defence could be made to it(a).

This, however, is to be understood only where the grant is revoked on citation; if it be reversed on appeal, the administrator's or executor's authority was suspended by the appeal, and of course such payments shall be void (b).

(2) However it has been shown that an administration is not void, but voidable only, where improperly committed after acts of administration by an executor: Ante,

(a) See also the judgment of Best, J., in the case of Woolley v. Clarke, 5 B. & A. 746; and Phillips v. Biron, 1 Stra. 509. Digby v. Wray, Bac. Abr. Exors. (F. 3.) 13. But see also Ex parte Jolliffe, 8 Beav. 168. Ante, p. 478, note (1).

(6) Toller, 131.

p. 243.

(y) Stevens v. Langley, Finch. 40.

(2) Allen v. Dundas, 3 T. R. 125, 129.

In a case at N. P. before Trevor, C.J., an administrator made an attorney to receive debts due to the intestate; he received them, and paid them over to the administrator : Afterwards a Will appeared, and the letters of administration were repealed by citation; and then the executor brought assumpsit against the attorney, for money had and received; and it was held that the action lay ; because the administration was merely void, and so the attorney had no authority (c). But in a subsequent case, Lord Holt, under similar circumstances, nonsuited the executor (d). And Lord Mansfield, in Sadler v. Evans (e), expressed his dissent from the decision of C. J. Trevor, and his approbation of the contrary decision of Lord Holt. But these cases have reference to the doctrine, that if a known agent has paid over the money to his principal, the remedy is against the latter only. Whether the administration be void or voidable, or be re- A batement of

suit by adminvoked on citation or appeal, if an action is brought by the

istrator by administrator, and while it is pending administration is revocation of

administration. committed to another, the writ shall be abated (s). If an executor or administrator, before the repeal of the Audita que

rela, where probate or administration, obtain a judgment for a debt due probate or ad

ministration to the intestate, he is not entitled, after the repeal, to take repealed after out execution, but the defendant may avoid the judgment by judgment. . an audita querela (g). So where judgment 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 (1). But where in trover, after verdict, and before the day in bank, the defendant pleaded that the plaintiff's letters of

a.

(c) Jacob v. Allen, 1 Salk. 27.

(d) Pond v Underwood, 2 Ld. Raym. 1210.

(e) 4 Burr. 1986.

(5) Bro. Administrator, pl. 3. Toller, 131.

(g) Dr. Drury's case, 8 Co. 144,

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.

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 adminis- Where the Ordinary grants administration, and afterwards trator under a void grant shall

there appears to be an executor, if the administrator has paid be recouped in debts, legacies, or funeral expenses, which the law will force damages for debts paid, the executor to pay, the administrator, in an action against &c., in the course of his him by the executor, shall recoup so much in damages ; administration, because he was compelled to pay it, and the true executor

has no prejudice by it, forasmuch as he himself would have been bound to pay it (?). So it was holden in equity, where a widow possessed herself of the 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).

A defendant sued as administrator may plead, that, penProper plea by dente brevi, administration was committed to another (n). administrator after adminis. With respect to the proper plea, in a case where the admitration re

nistration is revoked before the action commenced; the voked.

defendant, in Garter v. Dee (0), being sued as administrator, pleaded, that before the date of the writ, his administration was revoked and granted to another: Per Wilde : He ought

(1) Ket v. Life, Yelv. 125. and see the authorities mentioned,

(k) Patnell v. Brook, Style, 417, ante, p. 236, 237, with respect to an As to the cases where, according executor de son tort. But the conto the modern practice, the Courts trary seems to have been holden in will relieve the defendant in a sum- Woolley v. Clarke, 5 B. & A. 744. mary way on motion, without Ante, p. 237, note (a), 519. driving him to an audita querela, (m) Hele v. Stowel, 1 Chanc. Cas. see 2 Saund. 148, a. b. note to 126, Bac. Abr. Exors. (E. 13.) Turner v. Davies.

(n) Bro. Administrator, pl. 3. (1) Peckham's case, cited Plowd. Ante, p. 523. 282. Bacon. Abr. Exors. (E. 13); (0) 1 Freem. 13.

v.

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