The purchase has been consummated. If by the subsequent reversal of the judgment he can annul the purchaser's title, he makes an innocent party the victim of his negligence and delay, and all distinction between bona fide and mala fide purchasers is destroyed. For the error in the charge of the court the judgment is reversed and the cause remanded. Reversed and remanded.33

SHEPHARD v. RHODES.

(Supreme Court of Illinois, 1871. 60 III. 301.)

THORNTON, J. The deceased died testate, in Pennsylvania, where his will was proved and recorded. At the time of his death he had creditors, and owned real estate, in Illinois.

Without any knowledge of the existence of the will, letters of administration were granted to Quimby, in this state, and after the discovery of the will they were revoked, and letters with the will annexed were granted to appellant.

If the letters to Quimby were valid, then the claim of appellees is barred, having been presented after the lapse of two years from the grant of the letters, and it was error to allow it to be paid in the due course of administration.

The only question, therefore, presented by the record, is, were the first letters void, or only voidable?

It is laid down in Toller's Law of Executors, p. 119, that a grant of administration, before probate and refusal, shall be void if the will shall afterwards be proved, although it were suppressed or its existence were unknown. The author declares the administration a nullity in such case, because the interest of the executor is incapable of being divested. This is referred to and relied upon by counsel for appellees, to show the grant to Quimby void.

There is a difference in the facts between the case supposed and the one at bar. In this case the probate had been made [in Pennsylvania, October 15, 1866], and the executors had refused to accept, before the appointment of Quimby [in Illinois, August 5, 1867].* The grant of administration to him did not, therefore, divest the executors. They had voluntarily deprived themselves of all right and interest, and the reason assigned for the nullity of the administration did not exist.

Reference was also made to 1 Williams on Executors, 367, where it is said: "If administration be granted on the concealment of a will,

33 See Foulke v. Zimmerman, 14 Wall. 113, 20 L. Ed. 785 (1871); Thompson v. Samson, 64 Cal. 330, 30 Pac. 980 (1883). But see Fallon v. Chidester, 46 Iowa, 588, 26 Am. Rep. 164 (1877).

34 The statement of facts is omitted.

*Quimby did not learn that deceased died testate until May, 1868, when his letters were revoked on his petition and letters with the will annexed granted to Henry M. Shephard.

and afterwards a will appear, inasmuch as the grant was void from the commencement, all acts performed by the administrator in that character shall be equally void."

The same author says, on page 370, that, whether the administration be void or voidable, a bona fide payment to the administrator of a debt due to the estate will be a legal discharge of the debtor. See, also, Toller, 129. It was also held, in Allen v. Dundas, 3 T. 125, that the payment of money to an executor who had obtained probate of a forged will, was a good discharge.

If all the mesne acts of an administrator, between the grant of letters and the revocation, are void, then there is a manifest inconsistency in the reasoning in the books to which reference has been made. From a careful reading of the text of Toller and Williams, both writers make a marked distinction between revocation on appeal and on citation. An appeal suspends the grant, and upon reversal it is as if it had never been; and hence, upon appeal and reversal, the intermediate acts of the administrator are invalid. The object of the citation is different; it is to countermand or revoke the former letters.

In this case, the revocation partook somewhat of the character of a citation. The first administrator had been appointed for ten months, and upon discovery of the will presented his petition for letters with the will annexed. The court then revoked the administration and appointed appellant.

The principles of law adverted to, as laid down in the books, cannot be strictly applicable to this case. The executors had renounced before the grant of administration, and the test that the grant must be in derogation of the right of an executor did not exist.

Even if it were the rule of the common law that letters of administration were void where a will was in existence, we do not think, in view of our statute, that the rule obtains in this state.

The chapter of the statute entitled "Wills" provides, in the condition of the bond required to be given by each administrator, that if a will should afterwards appear and be proved in court, and letters testamentary be granted thereon, the administrator shall deliver up the letters of administration. It is enacted by section 71, as follows: "If. at any time after letters of administration have been granted, a will of the deceased shall be produced and probate thereof granted according to law, such letters of administration shall be revoked and repealed, and letters testamentary, or of administration, with the will annexed, shall be granted in the same manner as if the former letters had not been obtained." Section 72 provides for the repeal and revocation of letters granted upon a will, where the latter has been annulled by due course of law. Subsequent sections confer the power to revoke and repeal letters for numerous causes.

It would, therefore, seem that the legislature had provided for the case at bar. The power to repeal, implies the power to make, a law. The revocation of an order or decree must be the act of an authority

which has the power to publish it. The power to revoke and repeal letters of administration upon the production and probate of the will, necessarily presupposes the power to grant the administration.

Chancellor Kent (2 Com. 413) says: "It is the received doctrine, that all sales made in good faith, and all lawful acts done, either by administrators before notice of a will, or by executors or administrators who may be removed or superseded, or become incapable, shall remain valid, and not be impeached on any will appearing, or by any subsequent revocation."

In Wight v. Wallbaum, 39 Ill. 554, this court held, that any mistake. in the grant of letters of administration did not make them void; that, whether a will was properly proved or not, could not affect the validity of the letters or a sale of property made by the administrator; and that, where jurisdiction existed of the subject-matter and of the parties, the judgment must be conclusive, except in a direct proceeding for its reversal.

This is not a direct proceeding for the reversal of the grant. The question as to the validity of the first letters arises collaterally. In this case, it is as necessary to hold the grant voidable only, for the protection of creditors, and to make the bar of the statute effectual, as if third parties had acquired rights from a sale of property, or other acts of the administrator. If the first grant was void, the creditor who presented his claim within two years will receive no reward for his vigilance, for the assets must be shared with creditors who have been less diligent.

The county court had cognizance of the subject-matter, the proper application was made, and the judgment of the court was properly exercised. The grant of administration was, then, made by a court. of competent jurisdiction.

The judgment was for a legal purpose, to reach the property of the deceased for the satisfaction of his debts, and, under the facts, was not in derogation of the rights of the executors.

The claim of appellees should have been allowed to be paid out of any estate to be discovered subsequent to the bar of the statute, which commenced to run from the date of the first grant of letters.

The judgment is reversed and the cause remanded. Judgment reversed.35

35 See Barkaloo's Adm'r v. Emerick, 18 Ohio, 268 (1849); Kittridge v. Folsom, 8 N. H. 98 (1835); Franklin v. Franklin, 91 Tenn. 119, 18 S. W. 61 (1892); Zeigler v. Storey, 220 Pa. 471, 69 Atl. 894, 17 L. R. A. (N. S.) 878 (1908). In Perkins v. Owens, 123 Wis. 238, 243, 101 N. W. 415, 416 (1904), it is said: "If letters of administration be issued on the mistaken idea that no will was left, and a will be afterwards found and proven, the letters of administration will of course be revoked, and all acts of the county court, inconsistent with the due administration of the estate under the terms of the will, will doubtless be revoked upon motion; but such action will not be based on the idea that all such acts have been void for lack of jurisdiction, but rather on the ground that they have been erroneous. The county court has administered on the estate in the wrong way; it has not admin

istered an estate over which it has no jurisdiction." See, also, 21 L. R. A. 146, note; 17 L. R. A. (N. S.) 878, note. In Crocker v. Crocker, 198 Mass. 401, 410, 84 N. E. 476 (1908), in suggesting a bill to review as the proper course for an aggrieved party to pursue where a will has been rejected and administration granted because a juror was bribed to give his verdict against the will, the court said: "So far as the administrators have acted in the settlement of the estate under orders and decrees of that [the probate] court, they will find in them sufficient protection. Pierce v. Prescott, 128 Mass. 140. Harris v. Starkey, 176 Mass. 145 [57 N. E. 698, 79 Am. St. Rep. 322]. If the facts here alleged are proved in that court, they will present a question similar to that which would arise if a will were discovered after the appointment of an administrator."

But in Ellis v. Ellis, [1905] 1 Ch. 613, it was held that an acknowledgment by payment made by an administrator would not raise the bar of the statute of limitations, where there really was a will naming an executor, and where on the probate of that will the grant of letters of administration was revoked. The opinion of the court was on the ground that the grant of letters of administration was "wholly void." See, also, Woolley v. Clark, 5 B. & Ald. 744 (1822).

In Craster v. Thomas. [1909] 2 Ch. 348, it was held under the Indian Succession Act, that the grant of letters of administration in India on the estate of a resident of England who died owning assets in India was not void ab initio, despite the fact that he left a will appointing executors, and, accordingly, a sale of shares of stock by the administrator in India to a bona fide purchaser was valid. The court distinguished the case from Ellis v. Ellis, supra, on the ground that in Ellis v. Ellis, if the court had known of the will, the appointment of an administrator would have been improper, whereas in Craster v. Thomas, if the Indian court had known of the will, still as the will named executors who were not residents of India, that court's proper course would have been to appoint an administrator with the will annexed. That an administrator was appointed without making him one with the will annexed was deemed immaterial, since it was proper to appoint some kind of an administrator, and since even an administrator with the will annexed would have taken title, not by virtue of the will, but by virtue of the grant of the court It was also held that the true construction of the Indian Succession Act made the grant of letters in India void only from the date of the order of revocation.

1

S

CHAPTER II

THE TITLE AND POWERS OF EXECUTORS AND
ADMINISTRATORS

SECTION 1.-WHAT INTERESTS BELONG TO EXECUTORS AND TO ADMINISTRATORS

HOVEY v. PAGE.

(Supreme Court of Maine, 1867. 55 Me. 142.)

DANFORTH, J. This action was commenced by the plaintiff's intestate in her lifetime, and is for an alleged breach of promise of marriage. That such an action does not survive at common law, without an allegation of special damage, is well settled. Stebbins v. Palmer, 1 Pick. (Mass.) 71, 11 Am. Dec. 146; Smith v. Sherman, 4 Cush. (Mass.) 408. Nor does it come within the provisions of Rev. St. c. 87, § 8. In this case, no special damage is alleged, but there is an offer to prove, for which the same effect is claimed, "that, after such alleged promise, the deceased had a child born to her out of wedlock, now living, and that the defendant is the father of the child." It is not necessary now to decide whether such testimony, with or without an amendment of the declaration, would be admissible; for we are of the opinion that, if the facts stated in the offer were proved, there would not be such special damage as to authorize the prosecution of the suit. In order to do so, it must be such as to affect the property and not such as is purely personal. The distinction between actions which do not survive, and those which do, is that the former are to recover damages to the person only and the latter damages to the property. If any others survive it is by virtue of statutory provisions. Hence, the allegation of special damage which would cause the action to survive, must be of damage to the property, and such as would be sufficient of itself to sustain a suit.

That such was the understanding of the court in Stebbins v. Palmer is evident from the last sentence in the opinion, by which it is left in doubt whether, in case the action survives, the plaintiff would recover any more than the damage to the property. In Smith v. Sherman it

1 The statement of facts is omitted.

2 Stebbins v. Palmer, is reported post, at page 592.

COST.WILLS-35