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CH. 29.
Art. 13.

5 Mass. R.

275, Jewett v. Jewett, adm.

granted after the expiration of twenty years after the intes tate's death. But when the question before the judge is only as to the manner of exercising his jurisdiction, there his mistake is corrected by appeal, and his act is not void, but only voidable, and so valid till avoided, by appeal, where one has an opportunity to appeal, and where not, by pleading, as error lies not in probate cases, 11 Mass. R. 507.

2. If an action be brought against an administrator, it is a good plea in bar, that since the action was commenced against him, he has been removed from office by the judge of probate; for now the plt. has no cause of action against the deft. in this or any other form. Held, the probate judge's power to grant administration on the estate of an inhabitant 543, Cutts & of the state, is confined to the county where he lived at his al. v. Haskins. death exclusively, and the doings of any other judge on such estate are void.

9 Mass, R.

Toller's L. of
Executors
118, 122.

3. Administration void or voidable. It is void generally if there be an executor, though unknown, who still has a right to act. So if granted by a judge who has no power to grant it, as of a wrong county, though doubtful who is executor, or he is abroad, or if granted before his refusal, though he afterterwards refused, Com. D. Admr., B. 2, B. 10, so because he is a bankrupt; in these and other cases named, the administration is a mere nullity. So a nullity in S. Carolina, where granted by the ordinary during the executor's absence out of the state, he being qualified and capable, and having accepted the trust. 2. A judgment recovered against the intestate and revived against such administrator is a nullity, and a scire facias issued thereon, and sale of lands of the intestate at auction are also null and void, and his heirs can recover in clausum fregit against a bona fide purchaser under him, who purchased of the sheriff at such sale; sundry cases cited and points decided, 8 Cranch 9 to 30, Griffith v. Frazier.

But it is only voidable, if only granted to a wrong person, or to two, and one is not entitled to it, as to a sister and her husband, Com. D. Admr. B. 8, or to the wife's next of kin, instead of the husband's, id. ; or on the refusal of an executor who had before administered, id.; or without citing the necessary parties id.; or to a stranger, or by fraud, or to a creditor before the next of kin refuses, Com. D. Admr. B. 6. It is stated in the English books, that administration is granted to the next of kin on account of his interest, and therefore if that cease, the reason ceases, and it is to be granted to the residuary legatee if there be one, whether there be any present residue or not, Com. D. Adm. B. 8; and if the wife be one and executrix, and die, it must be granted to her husband de bonis non.

CH. 29.

Art. 15.

128, 132,

Wherever the administration is void, as above, the mesne acts of the administrator are void also, Com. D. Adm. B. 10, for all in such case is void ab initio ; but if only voidable, as above, there is another distinction if on an appeal his mesne Toller's L. of acts are void, as this suspends the former sentence, and on its Executors, reversal it is as if it never existed, 3 D. & E. 129; but if only voidable and on citation, all the mesne acts are valid. But void or voidable, a bonâ fide payment to the administrator of a debt due to the estate, is a legal discharge of the debtor, in analogy to a payment under a probate of a forged will, 3 D. & E. 125. But if revoked on appeal, as the administrator's power is suspended by the appeal, and in fact never is granted to effect, hence such payments are void.

v. Williams.

ART. 14. Administrator's contracts to convey intestate estates. 4 Mass. R. The defts., administrators of the estate of Obadiah Williams, 427, Fairfield bound themselves to convey a part of his estate to the plt. in fee in one year. It is no legal defence for them to plead his estate is insolvent, and they sold it by license of court to pay his debts, to the highest bidder, the plt. being present and requesting them to do it; nor, that since they so bound themselves the whole of the land has been covered by a town way; for this "is not a performance of the condition, nor is it any legal excuse for not performing it." The defts. ought to have procured some person to become the highest bidder, who would have conveyed to them or to the plt. And as to the road, they ought to have conveyed the land subject to it, for the soil remained in the former owner; and an easement as a right of way only would pass.

One sells land as executor, and so names himself in the Mass. Sup. J. deed. A power from a court to him as administrator, to sell, April 1803. Court, Essex, will support the sale, Cook & ux. v. Griffin.

11.-5 Co.

rent.-1 Ld.

ART. 15. Executors and administrators may retain and Hob. 10.take bonds of indemnity &c. 1. Retainer is a remedy by act 3 Bl. Com. of law, and is where a creditor is made executor or adminis- 31, 32, Coultrator of the debtor. As he cannot for the debt due to him ter's case. in his own private capacity sue himself as executor or admin- See debt for istrator of the debtor, without a manifest absurdity; the law Raym. 172, allows him to be in the same situation he would have been if Howell v. Bell; King . he had sued. May distrain for rent in arrear to the deceased, Ayloff. 3 Salk. 136; and may have error to reverse the testator's attainder, 1 Salk. 295.

§ 2. Executors and administrators suing out mortgages &c. See Mortgages.

Salk. 318,

Baron and

3. Lands devised to executors to sell. "Where one devises lands to executors to be sold, or his lands to be sold by Feme, see Ch. his executors, which is all one, if they sell not in convenient 135. time the heir may enter." "But when one devises, that his

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Сн. 29. Art. 15.

Moss & al. v.

4 Hen. &

Mun. 293, 314.-Vir

Ch. 66, p. 79,

substituted such further

to the former

executors shall sell his lands, they may do it at any time, for in this case they shall not take the profits;" they have but a chattel interest.

§ 4. This was debt on a joint and several bond, given by six Moss's adm. distributees of an intestate estate to indemnify the administrator for dividing the estate among them; conditioned "that they should pay him, their respective proportions of all debts he ginia Act on should be compelled to pay, that should thereafter come the subject, 1 Rev. Code, against the said estate." The action was against all the obligors; the capias was returned executed on only two of them, who appeared and defended the suit, and there was a disconprocess to tinuance as to the rest by failure to take out further process bring in defts. against them; a judgment against the defts. in general terms mode of out- Was understood as against those only who appeared, though lawry. See the declaration charged them all as in custody &c., and the Ch. 80, id. caption of the entry of the judgment in the order book mentioned the name of all. Held, second, the plt. was not bound to sue out further process against the rest, but might take judgment against the two: 3. Indifferent whether the declaration was against the two only, or against all named in the writ, provided the bond was well described: 4. It was a sufficient assignment of a breach to say, "that the plt. on a day after the date of the bond, had paid by the consent of the defts., a debt that was then due from the estate aforesaid, and which as administrator he was bound to pay; and that the defts. had not paid him their respective parts or any proportion thereof, but the same had refused, although often requested." The officer's return as to three of the defts. was, that they were not inhabitants of his county to which the writ was directed, and a copy left for the fourth. There was no plea in abatement, that the proceedings were against two of six joint and several obligors, all alive. But the two, after various pleadings waived, joined in an issue of inquiry &c. The above decisions were by two judges against one. The case seems to have rested mainly on such English common law authorities as are in use in the United States generally; hence were cited, 9 Co. 119, by counsel; cited by judge Tucker against the decisions above, as to a discontinuance, 3 Bl. Com. 282, 296; 1 Wash. 372; a verdict aids it only after the deft. has appeared, (the forthcoming bond given by the two was not before the court, the supersedeas being only to the original judgment; Leftwich v. Stoval, 1 Wash. 303; Sayre v. Grymes, and Holcombe v. Pumal & al., 1 Hen. & M. 406, 407,) the material point, the declaration, he observed, was on a joint bond of six obligors, made so by the plts., all named in the writ, served on two of them only; alias capias awarded against the rest. Thought the plt. could not proceed against

CH. 29.

Art. 16.

the two only before the rest were taken, or the process substituted for outlawry had been issued and duly returned, cited 5 Co. 119; 1 W. Bl. 20; 6 D. & E. 328; 1 Wils. 78, Symonds v. Parmenter; 1 Stra. 473, Edwards v. Carter; Left- 2 Atk. 571.— wich v. Berkely, 1 Hen. & M. 66; 1 Call. 275; 1 Saund. 1 Vez. 396. 291, b note (4,) and many cases by him cited, was answered, the Virginia practice had been otherwise fifty years. Judge Tucker held the judgment void as to the four, and being entire was void as to all, cited Ld. Raym. 600, 602; Cro. Jam. 303, King v. Marlborough; id. 304, Miles v. Pratt & al. The other judges held, as above, that the judgment was only against the two who pleaded &c., and that the caption was the mere error of the clerk, cited the Virginia act of jeofails, 1 Rev. Code, p. 111, by which one part of the record may be amended by another, and Stephens v. White, 2 Wash. 212; 8 Co. 158; 1 Bac. 164. Such a case often exists in principle in every State; see Ch. 194, a. 6, s. 22; Ch. 175, a. 8, S. 13 to 17; Ch. 176, a. 3, s. 11, &c.

Toller's L. of

12.-Willes

ART. 16. Pleadings and evidence &c. by executors and ad- General prinministrators. As all torts, and of course actions thereon die ciple. with the testator or intestate, his executor or administrator Ex. 131, 458. does not represent him in this respect, except on the 4 Ed. III. See Ch. 7. s. But he fully represents him in all his contracts that do not 413, 422, Solterminate with his life, whether the executor or administrator lers v. Lawis named in them or not. He may demand all his personal rence. estate and debts due to him, and is subject to fulfil all his contracts, so far as the executor or administrator has assets; and if he be not in fault, he is never "bound to pay more for his testator than his goods amount to." Executors may release 12-1 Inst. or take releases before probate, if they prove the will after- 292. wards, so by the English law they may sue before probate.

Went. Office

of Ex., Ch.

Before probate and before any seizure the law adjudges Plowd. 281. the property of the testator's goods in his executors; hence, if then taken by A, they may have trespass or replevin, the same as to an administrator, for an administration when grant

ed relates back to the death of the intestate. Debt does not 2 Rol. Abr. lie against an administrator on the intestate's simple contracts, 399. New. R. 293, Barry v. Robinson.

680, 682.

Allen v. Dun

Each executor has the entire controul of the personal estate 2 Selw. N. P. of the testator, may release or pay debts, or may transfer any 2 Vez. 268.part of his personal property without the concurrence of his Rastal 560.--other executors; so of administrators; so one executor may 3 T. R. 125, sell a leasehold estate, and the executorship and administration survive. Hence, an executor or administrator may sue or be sued accordingly, nor can a probate under which the executor acts be impeached in the temporal courts till it is repealed.

dass.

Сн. 29.
Art. 16.

3 T. R. 690, Rock v. Leighton.

2 Selw. 695, 696.

5 T. R. 8, Cleverly v. Brett.

1 T. R. 691,
Barry r.
Rush-7 T.
R. 453.

5 T. R. 6, Pearson v. Henry.

All debts due and inventoried are deemed assets; but the executor may discharge himself of them by shewing they are bad, or by shewing a demand and refusal of them. 2 Selw. 695; Salk. 296.

And according to late decisions in this state, executors and administrators have no concern with the real estate to recover or defend the freehold. Hence it is but very seldom they have occasion to plead in regard to the real estate in âuter droit; perhaps never, but where they sue or are sued on the covenants or contracts of the testator or intestate relating to it. Hence all pleadings by them are limited to such covenants or

contracts.

In England, if an executor suffer judgment against him by default, or it is found against him on plea of payment or of `non est factum, it is an admission of assets, and if on execution nulla bona be returned, he is guilty of a devastavit. 1 Wils. 258, Skelton v. Hawling; 1 Saund. 219, same case; 3 T. R. 685, 686, Erving v. Peters.

If an executor pay interest on a bond due from his testator, yet he may plead no assets to pay the principal, and prove the fact.

But if the deft. bird himself as administrator to abide a certain award, touching a matter between his intestate and another, and the arbitrator award the deft. as administrator to pay £10, he cannot plead want of assets in this case; for by giving the bond he undertakes to pay what shall be awarded, but does he not by our law engage to pay subject to insolvency. See Ch. 29, a. 8.

But a mere submission to arbitration is not of itself an admission of assets; for where the arbitrator only ascertained the amount of the demand, and without ordering the administrator to pay it, it was holden the administrator might plead plene administravit. Plea in Virginia, s. 31.

These principles as to assets, hold in Massachusetts where the estate is not insolvent and so rendered. But if an executor or administrator render the estate insolvent, according to the statutes on the subject, it is conceived that such a judgment recovered against him is subject to the insolvency. Often such a judgment may be recovered against him before it is suspected the estate will be insolvent. Administrator may be sued on a plain note of hand where he has no defence, and no matters whereon to represent the estate insolvent, the court will default him. Soon after debts appear, that make the estate insolvent, it would be unjust to make him pay the whole of the judgment on the note; so if he submit to an award, it must be understood that the sum awarded to be paid shall be subject to a legal insolvency.

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