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GRIFFITH the estate. But this is not the case with an executor

V. who, after taking out letters testamentary, absents himFRAZIER, self from the state. He is still capable of performing,

and he is still bound to perform, all the duties of an executor. There exists no legal disability in the executor, and, consequently, there is no necessity for transferring to another those powers which the testator has conferred on a person selected by himself.

This power does not appear ever to have been exercised by the ordinary in England anterior to the statute of 38, George 30; and in South Carolina, the ordinary possesses no power which was not possessed by the ordinary in England previous to that statute. The practice of the particular ordinary who acted in this case, would not be sufficient to constitute the law, had it even never received judicial reprobation; but the case of Ford r. Travis puts an end to any doubt on this point.

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The second point is one of more doubt and greater intricacy. That the ordinary erred in granting letters of administration to Lamotte, is thought very apparent; but the effect of these letters is less obvious. By the Plaintiff it is contended, that they constituted La. motte an administrator de facto, rendered his acts valid, so far as third persons are interested, and exempted th«m from question where they can be examined only incidentally. By the Defendant it is contended, that they were granted by a person having no jurisdiction in the case, and are therefore an absolute nullity; That Lamotte was not, de facto, the administrator of Salvadore, and that his acts, as administrator, stand on no better or higher ground than the acts of any other person who should assume that character.

The well known distinction between an erroneous act or judgment by a tribunal having cognizance of the subject matter, and the act or judgment of a tribunal having no cognizance of the subject, is not denied; but it is contended that the ordinary had jurisdiction in this case. The ordinary, in South Carolina, is the Court in which wills are proved ; in which letters testamentaTy, and letters of administration are granted.

He : judges, whetkei the applicaüt be entitled to administra

tion or not, and rejects or ådmits the claim, according

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to his opinion of the law. Whether his judgment be GRIFFITH correct or not, still it is his judgment; and when exercised upon an application for administration, it is exer- FRAZIER. cised on a subject cognizabla in his Court.

That he grants letters of administration in cases not expressly authorized by statute, and in which a will exists in which an executor is named, proves that he has jurisdiction in such cases; and if he grants administration in one of them improperly, the judgment is erroneous and voidable, but not void.

This argument has been very strongly urged, and there is great force in it. The difficulty of distinguishing those cases of administration in which a Court having general testamentary jurisdiction, may be said to have acted on a subject not within its cognizance, is perceived and felt. But the difficulty of marking the precise line of distinction does not prove that no such line exists.

To give the ordinary jurisdiction, a case, in which, by law, letters of administration may issue, must be brought before him. In the common case of intestacy, it is clear that letters of administration must be granted to some person by the ordinary; and though they should be granted to one not entitled by law, still the act is binding until annulled by the competent authority; because he had power to grant letters of administration in the case. But suppose administration to be granted on the estate of a person not really dead. The acts all will admit, is totally void. Yet the ordinary must always enquire and decide whether the person whose estate is to be committed to the care of others, be dead or in life. It is a branch of every cause in which letters of administration issue. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint, with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to him by the law. And althougla one of the points occurs in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction.

GRIFFITI The case of letters of administration granted on the

éstate of a person in full life, is not the only one which FRAZIER. may serve for illustration ; suppose administration to

be granted on the estate of a deceased person whose executor is present, in the constant performance of his executorial duties. Is such an appointment void, or is it only voidable ?

In the opinion of the Court it would be an absolute nullity.

The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, but he holds the le. gal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels as was the testator himself while alive. This is incompatible with any power in the ordinary to t:ansfer these chattels to any other person by the grant of administration on them. His grant can pasg nothing: it conveys no right; and is a void act.

If the ordinary possesses no power to grant administration where an executor is present performing his duty, what difference can his absence make, provided that absence does not disqualify him from executing his trust? If all his powers as an executor remain, if he is still capable of appearing in Courts of justice as the representative of the deceased, if he is still the legal owner of the chattels of the deceased, and still capable of disposing of them, it would seem that he is potentially present though personally absent. It is not easy to perceive any principle on which the ordinary can assert his power to take the estate out of the executor and vest it in an administrator. If he cannot do this, then the attempt to do it must be a void act. If the administrator durante absentia be only the agent of the executor, it still occurs that the executor can himself appoint, and is the proper person to appoint, his own agent. There is no necessity for the intrusion of the ordinary.

Let the case be supposed of a suit by the executor while actually resident abroad. Would he be incapable of sustaining the action? Would his absence be a good

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plea in bar? If it would not, how can the grant of let- GRIFFITH ters of administration to another take the property in the thing sued for out of the executor and place it in FRAZIEŘ. that other?

Letters testamentary, when once granted, are not revocable by the ordinary. He cannot annul them, or transfer the legal interest of the executor to any other person. His rights and his duties are beyond the reachi of the ordinary. How, then, can this be effected by the grant of letters of administration ?

The cases in which administration has been granted notwithstanding the existence of a will, appear to be cases in which it is not apparent that there is any person possessing right in the chattels of the testator, or cases in which that person is legally disqualified from acting.

Where administration is granted pending a dispute respecting a will, it is not certain that there is an executor, or that there is a will.

If it be granted during the minority of an executor, it is because the executor is legally disqualified from acting, and indeed has not taken upon himself, and could not take upon himself the trust reposed in him. He may, when of age, reject all the rights and powers conferred by the will; and, consequently, the interest is n it yet a vested interest. The rights and powers of the ordinary remain until those of the executor commence.

So in the case of an absent executor who has not yet made probat of the will and qualified. Those letters testamentary which are indispensable to his character as executor, and which, during their existence, leave the ordinary without any further power over the subject, are not yet granted. The exycutor has as yet no evidence that he is executor. He is not yet able ta act as one. He may never be able to act; for he may never take out letters testamentary. He may renounce the executorship. The ordinary, then, is not yet deprived of that power which he possesses to appoint a person

to represent a dead man who has no representative. His VOL. VIII.

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GRIFFITH jurisdiction over the subject remains until he parts with

it by issuing letters testamentary.

V. FRAZIER.

The difference between granting administration in cases where there is a qualified executor, capable, in law, of acting, and where he has not qualified, is such as, in reason, to justify the opinion that though, in the latter case, the ordinary may have jurisdiction, and his act, though erroneous, may be valid till repealed, yet, in the former case he can have no jurisdiction, and his act is in itself an absolute nullity.

If, under any circumstances, the ordinary could grant administration during the absence of an executor who has made probat of the will and is legally competent to act, then he would have jurisdiction of the subject, and would judge of those circumstances; but if, in no possible state of things, he could grant such administration, it would be difficult to conceive how he can have jurisdiction.

If we refer to authority, we can find no case and no dictum which admits the jurisdiction of the ordinary, where there is an existing executor capable of acting. In many cases it is stated, that an administration granted where there is such an executor is void. Toller, in his « law of executors, page 120, says, “ If there be an “executor, and administration be granted before probate, “and refusal, it shall be void on the wills being after“ wards proved, although the will were suppressed, or o its existence were unknown, or it were dubious who 6 was executor, or he was concealed, or abroad at the « time of granting the administration.” It is also void

if granted because the executor has become a bankrupt," or if granted, “ durante minoritate where the infant had "attained his age of seventeen," until the statute of 38, G. 3. So if granted by a bishop where the intestate had «« bona notabilia, or by an archbishop of effects in ano. other province."

The case of Ford v. Travis, decided in South Carolina, is express to this point, and renders a further reference to English books unnecessary.

The counsel for the Plaintiff admits this to be the law

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