He canuot maintain actions before probate : 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. (i) Blainfield v. March, 7 Mod. 141, by Holt, C. J. S. C. 1 Salk. 285. Holt, 44. 2 Saund. 47, 2. 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. except where he has had actual posses In cases, indeed, where the executor has actually been possessed of the property which is the subject of the action, before 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 (1), 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 primá 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 (1) Wentw. Off. Ex. 84, 14th edit. Plowd. 281, in Graysbrook v. Fox. See Elliott v. Kemp, 7 M. & W. 306, 312, 314. (m) Wentw. Off. Ex. 84, 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 v. Ault, 2 Bing. 177. The dis tinction above pointed out might (0) Oughton v. Seppings, 1 B. nor can his grantee : but he may commence an action before probate : 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 (q): 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 (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. defendant: in some cases he may avow or declare lefore probate. before probate, (s), and arrest a debtor to the estate (t): for, and arrest the 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 necessary for him to prove his title by executorship, (as for instance, if non tenuit should be pleaded), it will be sufficient 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. Martin v. Fuller, Comb. 871. Wankford v. Wankford, 1 Salk. 302, 303. (t) Admitted by Saunders, C. J. in Duncomb v. Walter, Skin. 87. (u) Plowden, 281. 1 Roll. Abr. 917, A. 2. But this relation, it has been said, shall not prejudice a third person: and therefore where a debtor, after being arrested by an executor before probate, and set at large on bail, paid a debt to J. S., the debtor was adjudged, upon that principle, it is reported, not to be a bankrupt from the time of the arrest, so as to invalidate the payment: Duncomb v. Walter, 3 Lev. 57. S. C. Skin. 22. T. Raym. 479. 2 Show. 253. 1 Freem. 539. S. C. in error. Ventr. 370. Skin. 87. And see Toller, 471. Wentw. Off. Ex. note by Curson to p. 84, 14th edition. But the case of Duncomb v. Walter is very obscurely reported; and the point above stated is not necessarily in volved in the decision of it, as referred to the relation of the (x) Wankford v. Wankford, 1 (y) It is said an executor may maintain a quare impedit, if he be entitled to the next presentation of a church, which became void, without showing forth the Will: Wentw. Off. Ex. 84, 14th edition. he may file a bate: 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) (2), and the subsequent probate makes the bill a good one, if obtained at any time before hearing (a). And a commission of bankrupt may be taken out by an executor before he has obtained probate (b). and take out a commission of bankruptcy: he may be sued before probate : On the other hand, if he have elected to administer, he 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 (c). 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). But if by the course of the plead- (z) Humphreys v. Ingledon, 1 P. (a) Humphreys . Humphreys, of Patten, Executrix, v. Panton, in to be heard: Simons v. Milman, (c) Wentw. Off. Ex. 86, 87, 14th edition. Plowd. 280. Toller, 49. It is clear upon the grounds which have already been stated, (see p. 244) that if he has administered, he will be liable, not only before probate, but though he should refuse to take probate, and administration should be committed to another. See the observations of Best, C. J., in Douglas v. Forrest, 4 Bingh. 704. (d) Blewitt v. Blewitt, 1 Younge, 541. (e) Dulwich College v. Johnson, 2 Vern. 49. See also Phipps v. Steward, 1 Atk. 285. Fonbl. Treat. on Eq. Bk. 4, Pt. 2, c. 1, s. 2, n. b. |