Marsh v. Marsh, 1 Sw. & Tr. 528, 536; Curtis v. Curtis, 3 Add. 33; Goods of Honywood, L. R. 2 P. & D. 251. In England a copy of the will with a certificate, and called a probate, is given to the executor. It is the sole evidence of his appointment. In the United States letters testamentary are generally issued to the executors, and the wills are recorded. On including in the probate papers referred to in the will, see Newton v. Seaman's Friend Soc., 130 Mass. 91, and cases cited. But see 1 Redf. on Wills, #267, note (41). A PROHIBITION was prayed and granted to the Ecclesiastical Court of Canterbury, to stay a suit there, to repeal or revoke the probate of a will, because the executor was become bankrupt, and to grant administration to another. And though one Coates's Case was cited, where an administration was revoked for that cause, yet the court said that differed; for the executor is constituted by the testator himself, and by him intrusted; but it seemed to be agreed, that if an executor become non compos, the spiritual court may commit administration, because that is a natural disability.1 REX v. RAINES. KING'S BENCH. 1698. [Reported 1 Ld. Raym. 361.] A MANDAMUS was directed to Sir Richard Raines, to cominand him to grant probate of the will of Edith Pinfold to one Richard Watts, who was made executor of it. Sir Richard Raines makes return to it, and admits that Edith Pinfold made her will, and Watts executor of it; but says further, quod luculenter et judicialiter fuit probatum, et constat to him, that Watts is worth nothing, but absconds for debt; and therefore that it is lawful to him to defer the granting of the probate until Watts find sufficient security to perform the intent of the will. Sir Bartholomew Shower, Mr. Montague, and Dr. Waller, Advocate-General, against the mandamus. Mr. Northey and Mr. Eyre, for the mandamus. 1 See Evans v. Tyler, 2 Rob. Ecc. 128 (1849). Molion to revoke sioball of a 1 Salk 36 e fiobale of a will, I 454. will graill admin is another because efection because bankrupt. Held motion devich. Ex is coustituted by & intuebluted by restator himself & by him intrusted Then if the ecclesystical es proceed to enlarge the power of the it was agreed that ofex because insare, yet it was agreed ils cerque sued in the ecclesiastical courts to make distribution, he not being residuary legatee; the Rainey the canon law, yet the King Bench would a prohibition to stay any such suit; for all suit 454 Mandawers to Love Raines feobale will of E. Polone walls. Raines advicts will && P & they warts executor but this world fart qude the execlaw.will not permit him to exact security for the insolvency what to a forex we utor For ex. ship or five security. The executorship; the ordinary Hellcany Romeries se to take. To all amounts be done? Though the refusal of the oath amounts to a refusal of the office of refereel of office refusal to give scaccialy are not w taks a promissory oath, that he wie the once justly which he is Fadd 1114 Mass 420) 48 Joil. equire ollateral security. Then the to tament, will conting in for 87 myamy adurea for conversion of icoo frases. Peefs intestate having been filled in boule, his in were sent by general to tay master at washington. Stases of being, he said that a mon in by widow, at his required to sell theme in relura facendo collateral he did blowing mus vengsel, & asking for mis • day. Held for dft, weder kim facie child o adminidee on escales of the dead husband. I ft ROKEBY, Justice seem be of quinioth grievance in the alled in good faich, at request of faily in the province of York security was always given upon the granting of יך L proper. 2. The executor has a temporal right, of which he is barred by the refusal of the probate, inasmuch as he cannot before probate sue in Westminster Hall. 3. There are no precedents in the canon law to warrant this, and the practice has been always contrary. And if any cases happen, in which equity may be requisite, there is another channel here, where it runs without resorting to the spiritual court, viz., chancery.1 A peremptory mandumus was granted. And note, Mr. Robert Eyre told me, that the Lord Chancellor Somers well approved this resolution. NOTE. DUNCAMBAN v. STINT, 1 Ch. Cas. 121 (1669). The defendant's testator gave the plaintiff £1,000, to be paid at the age of twenty-one years. The bill suggested the defendant wasted the estate, and prayed he might give security to pay this legacy when due; and the MASTER OF THE ROLLS [SIR HARBOTTLE GRIMSTONE] did accordingly decree the defendant to give security. HATHORNTHWAITE v. RUSSEL, 2 Atk. 126 (1740). A motion for a receiver to be appointed by this court to collect in the money standing out upon several securities, and the rest of the assets of a testator, on a suggestion that the will was obtained by fraud, and that the sanity of the testator is now likewise contesting in the ecclesiastical court (see Montgomery v. Clark, 2 Atk. 378); affidavits, too, on the part of the motion were produced to show the mean circumstances of the two executors, and the counsel relied much upon the case of Powis v. Andrews, 2 Bro. Par. Ca. 476, where, upon a like motion, a receiver was appointed. LORD CHANCELLOR [HARDWICKE] denied the motion, and distinguished it from the case of Powis and Andrews: there the fraud appeared very strong; the executors, too, were not related to the testator, took out a probate the very morning he died, and that very afternoon wasted and embezzled large sums of money which they got into their hands. But here it is widely different; there are very strong affidavits produced on the part of the defendants to prove the sanity of the testator, and no circumstances to show that the executors used any unjust means, or prevailed upon the weakness of the testator, to make his will in their favor; besides, upon the very face of it, it is a rational will, for he gives away his estate in legacies to seven of his nearest relations, and has preferred the executors, who are as near of kin to him as the plaintiff himself, by making them residuary legatees. Nor are there any grounds to grant this motion upon the other suggestions of the executors not being responsible, from their indigent circumstances; the court never esteems this as any ingredient to take the assets out of the hands and care of the executors, nor will even the ecclesiastical court refuse persons a probate because they are not of affluent fortunes, as long as the testator himself has placed this confidence in them without regarding their circumstances; besides, too, this case is materially dif ferent from Powis and Andrews in another respect; there is no probate here, so that, as the bulk of the testator's estate is placed out upon securities, the executors are not entitled to sue or bring any actions for them; this application, too, is not till a year after the commencement of the suit in the ecclesiastical court; for these reasons his Lordship denied the motion. LANGLEY v. HAWK, 5 Madd. 46 (1820). Mr. Heald moved for a receiver, and that the defendant, an executor and trustee, who had become bankrupt, might pay into court a sum of money acknowledged to be in his hands. Mr. Rose, contra, stated, that proceedings had been taken to supersede the commission, which would probably be superseded, and that the defendant had more than 1 The Court of Chancery did accordingly, on a bill filed, restrain Watts from intermeddling until he should have given security. s. c. Carth. 457, 458. SECTION II. ACCEPTANCE, RENUNCIATION, AND TRANSMISSION OF EXECUTORSHIP. ANONYMOUS. COMMON PLEAS. 1481. [Reported Year Book, 21 Edw. IV. 23, pl. 8.] DEBT brought by an executor of an executor in London on an obligation made to the first testator by the Earl of Kent. Catesby [for the defendant], said that the first testator made him. to whom the plaintiff alleges himself to be executor, and one J. B., fishmonger, his executors in London, by the same will; which said B. survived the other executor, and made A., his wife, executrix. And the said A. took to husband Sir William Monteforde, who are both in life, which matter, &c. BRIAN, C. J. "You say more than is necessary, for it is enough to say that the first testator made J. B., and the other his executors, and that J. B. survived; and the rest is against your advantage." And he did not say why. sufficient for the payment of his debts; and that the testator knew a commission was issued against the defendant. Mr. Heald, in reply. The will was made before the commission issued. THE VICE-CHANCELLOR. [SIR JOHN LEACH.] The question simply is, Whether it is fit the court should now interfere for the protection of this property? Its interference can prejudice no right. I must consider bankruptcy, notwithstanding the petition to supersede, as evidence of insolvency; and from the will being made long before the commission, though not altered afterwards, I cannot satisfactorily infer, that this testator had a deliberate intention to intrust the management of his estate to an insolvent executor. I think it fit that a receiver should be appointed. NOTE. On executors by the tenor, or executors by implication, see Pemberton v. Cony, Cro. El. 164 (1589); Naylor v. Stainsby, 2 Lee, 54 (1754); Boddicott v. Dalzeel, Ib. 294 (1756); Grant v. Leslie, 3 Phillim. 116 (1819); Goods of Fry, 1 Hag. Ecc. 80 (1827); Goods of Oliphant, 1 Sw. & Tr. 525 (1860); Goods of Jones, 2 Sw. & Tr. 155 (1861); Goods of Baylis, L. R. 1 P. & D. 21 (1865); Goods of Punchard, L. R. 2 P. & D. 369 (1872). On the appointment of executors by substitution or nomination, see Goods of Lighton, 1 Hag. Ecc. 235 (1828); Goods of Cringan, Ib. 548 (1828); Goods of Deichman, 3 Curt. 123 (1842); Hartnell v. Wendell, 60 N. Y. 346 (1875). An executorship may be subject to a condition, Alice Frances' Case, Dyer, 3 b. in marg. (1581); may be limited in time, Pemberton v. Cony, Cro. El. 164 (1589); may be limited as to place, Goods of Wallich, 3 Sw. & Tr. 423 (1864); Velho v. Leite, Ib. 456 (1864); Goods of Astor, 1 P. D. 150 (1876). As to whether one can be an executor for a particular chattel or class or classes of chattels, see Anon., Dyer, 3 b. (1528) ; Austre v. Audley, 1 Roll. Ab. 914 (1620); Rose v. Bartlett, Cro. Car. 292, 293 (1633); Owen v. Owen, 1 Atk. 494, 495 (1738). And then Catesby prayed to be advised of the parish and ward. And on another day it was shown for the plaintiff that the plaintiff's testator proved the will before the ordinary, and the said J. B. refused to prove it, whereby his testator administered alone the goods of the deceased, &c. Collow [for the plaintiff]. "It seems to me that when J. B. refuses to prove the said testament before the ordinary, he will be estopped to administer afterwards, and he will not be charged by way of action as executor, wherefore it seems to me that the action is now maintainable as brought." THE JUSTICES. "If twenty are named executors, and one proves the will, it is enough for them all, if the others will agree to it. And the refusal before the ordinary is no estoppel against them from administering afterwards when they please, in our law, and we have regard in this not to the law of Holy Church; and the other who proves the testament ought strictly [de fine force] to name those who refuse before the ordinary in every action to collect a debt of the testator's, and they can sue with him, or they can be sued. And so although they never administer, their release will be a bar for the entire debt, and so it is clear that he who did not prove the testament, will have the action by survivorship, and that the plaintiff will be barred." And they also said that if A. makes B. [executor, and B.] proves the will and dies, the ordinary will sequester the goods of the said A. as well as the goods of B., for it is now as if the said A. had died intestate at the beginning. And so if the other executor who refused before the ordinary does not wish to administer, the ordinary can sequester. Sulyard. Reddendo singula singulis, the first testator died intestate when his executor would not administer; the ordinary then could sequester and commit the administration to whomever he pleased. And the opinion of all was that the plaintiff would be barred, notwithstanding the refusal of the other, &c. Vide 25 E. III. c. 5; De purveyors, 29 E. III. c. ult.1 1 Goods of Smith, 3 Curt. 31 (1842), accord. "And the court took this difference, when many are named executors, and some of them refuse, and some of them prove the will, those who refuse may afterwards at their pleasure administer, notwithstanding this refusal before the ordinary; but if all refuse before the ordinary, and the ordinary commits administration to another, then they cannot afterwards administer.". Hensloe's Case, 9 Co. 36 b, 37 a (1600). But see Anon, Dyer, 160 b, pl. 42 (1558.) But it has been determined on great consideration, that if one of two executors renounces, it is not necessary to cite him in on the death of the other executor, before appointing an administrator cum testamento annexo. The renunciation is considered as continuing after the death of the other executor, unless withdrawn. Harrison v. Harrison, 1 Rob. Ecc. 406 (1846); Venables v. East India Co., 2 Ex. 633 (1848.) |