of each province, there must be two prerogative adminis trations ". Where a canal was situated in the provinces of Canterbury and York, but the office for transacting the business of the canal was in the former province, it was held sufficient to prove the will of a shareholder in the Prerogative Court of Canterbury b. If a man die in itinere, the goods which he has about him at that time shall not cause administration to be taken out in the prerogative court; but if he die not in itinere in a diocese in which he has no goods, but having bona notabilia in another diocese, it will be sufficient to authorize the archbishop to grant probate. To give jurisdiction to the prerogative court, it is not necessary that the deceased should have goods to the amount of five pounds in each of the several dioceses where his goods are dispersed; it is sufficient if he were possessed of goods in some other diocese or dioceses or jurisdictions, altogether amounting to the value of five pounds, besides those in the diocese wherein he died ". Where one dies possessed of bona notabilia in a diocese, and also in a peculiar within that diocese, or in several peculiars within the same diocese, probate shall not be granted by the bishop of the diocese, but by the metropolitan, inasmuch as they are exempt from ordinary jurisdiction *. But where one dies possessed of bona notabilia in the diocese of an archbishop and in a peculiar within the same diocese, there must be two probates or letters of administration, one within the peculiar, and the other by the archbishop as ordinary of the diocese 1. If the ordinary grants probate or letters of administration where the deceased had bona notabilia in different dioceses in the same province, they are absolutely void; but if the archbishop grants probate or letters of administration where the Effect of taking out probate or adminis tration in a wrong Diocese where there are bilia. deceased had not bona notabilia in divers dioceses, they are not void but voidable only a. So, if there be bona notabilia in a boná nota peculiar, and also in other parts of the diocese, a metropolitan administration is not void, and it is doubtful whether it is even voidable. Where administration is granted in a wrong diocese it is void, but where granted to a wrong person it is voidable only. Where a diocesan probate is void, under the circumstances above stated, it may be pleaded in bar to an action by such executor or administrator, "that there were bona notabilia in divers dioceses," d or the defendant may give that matter in evidence upon a plea of ne unques executor, &c., for it confesses and avoids, and does not falsify the seal of the ordinary e. But if the defence be that the contract which is the subject of the action did not pass under the grant by reason of the defendant's residence out of the diocese at the time of the death of the testator, that fact must be specially pleaded. Commis saries. It may be observed that the rule, which applies to bishops with respect to each other, does not affect the several commissaries of the same bishop among themselves. Their probate in the court of the archdeacon of Sudbury, to whom the bishop granted full power to prove the wills of all persons deceased within the archdeaconry, was held good, the testator having died within the said archdeaconry, although he was possessed of a term of years in lands lying within another archdeaconry in the same diocese; for the appointment of the bishop, as it regarded the power of the commissary to prove wills, armed him with episcopal authority for that purpose. The grant of the power attracted to it all the means by which the power could be exercised. The commissary was bishop for the purpose of proving such wills as he was authorized by the grant to prove ɛ. * R. v. Loggen, 1 Stra. 75. Blackborough v. Davis, 1 P. Wms. 43. Needham's case, 8 Co. 135. Prince's case, 5 Co. 30. Swinb. pt. 6. s. 4. Wms. 181. b Lysons v. Barrow, 2 Bing. N. C. 486. 1 Hodges, 390. See Parham . Templer, 3 Phillimore, 245. Price v. Simpson, Cro. Eliz. 919. B. N. P. 141. S. N. P. 767.n. d 1 Saund. 275. a. e Id. B. N. P. 143. Wells, 1 Lev. 236. Noel v f Stokes v. Bate, 5 B. & C. 491. R. r. Yonge, 5 M. & S. 119. bona nota A lease for years of the value of five pounds shall be deemed What are bona notabilia where the land lies and not where the lease is a. bilia. So, an annuity for years out of a parsonage, shall be deemed bona notabilia where the parsonage is b. Where a canal was situate in both provinces, but the office for transacting the business of it was in that of Canterbury, the court held that the probate of the will of a shareholder in the province of Canterbury was sufficient, and that a probate in York was unnecessary; and where by a canal act shares were to be deemed personal property, and the canal passed partly through the diocese of Worcester and partly through that of Lichfield and Coventry, the transfers of shares were filed at the office of the company in the latter diocese, where the dividends were also paid and books of account kept; it was held, that for the purposes of probate, the right of a shareholder might be considered as locally situated in the diocese of Lichfield and Coventry, and that a probate granted by the ordinary of that diocese was sufficient d. Debts owing to the testator are considered bona notabilia as well as goods in possessione. Debts by specialty are bona Rotabilia, not at the place where the testator or intestate dies, but at the place where the securities are at the period of his death. Judgments, statutes or recognizances are bona notabilia at the place where they are acknowledged or recorded 5. But simple contract debts, such as bills of exchange, are bona notabilia in that diocese where the debtor resides at the time of the creditor's death h. * Com. Dig. Admin. (B. 4.) b Dyer, 305, a. in margin. e Smith v. Stafford, 2 Wils. 166. * Exparte Horne, 7 B. & C. 632. Com. Dig. Admin. (B. 4.) Swinb. pt. 6. s. 11. Lunn v. Dodson, 1 Roll. Ab. 908. Byron v. Byron, Cro. Eliz. 472. 1 Saund. 274. n. Adams v. Savage, Ld. Raym. 3 Dyer, 855. 1 Saund. 275. n. h Dyer, 305. in margin. 1 Roll. The property vests in an executor on the death of the testator, but not in an administrator until administration is granted. An execu tor cannot maintain an action before probate. SECTION VIII. OF THE INTEREST WHICH AN EXECUTOR OR ADMINISTRATOR TAKES IN THE ESTATE OF THE DECEASED. As the executor derives all his interest from the will itself, the property of the deceased vests in him from the moment of the testator's death. Thus, where the demise by an executor, the lessor of the plaintiff in ejectment, was laid two years before he had proved the will under which he claimed, it was held good. But as an administrator derives his title from the ecclesiatical court, the property of the deceased does not vest in him until letters of administration are granted, nor does any right of action accrue to him before that period. Therefore where A. took out letters of administration under a will by which he was appointed executor, and after notice of a subsequent will sold the goods of the testator; it was held, that the rightful executor, in an action of trover, was entitled to recover the full value of the goods sold, and that A. was not entitled to shew, in mitigation of damages, that he had administered assets to that amount. The executor before probate may do almost all acts which are incident to his office. He may take possession of the testator's goods and dispose of them at his discretion; he may pay legacies, and assent to a legacy, and such assent is good though he die before probated. If an executor releases before probate, such act will bind him after he has proved the wille. But if a man releases and afterwards takes out letters of administration, it will not bar him, for the right was not in him at the time of the release f. But he cannot maintain an action before probate, except where he has actually been in possession of the property which is the subject of the action; when he sues as executor, he must make profert of the letters testamentary, otherwise the defendant may demura, and though, where goods be taken or converted after the testator's death, the executor may declare on his own constructive possession, (since the property in the goods draws to it a possession in law ',) notwithstanding he has never had actual possession, without naming himself executor, or making profert, still on the general issue he must shew his own title as executor at the trial, by producing the probate in order to prove his constructive possession c. In trover for a horse and gig, claimed by the plaintiff as vendee, of an executor; the court held, that as it appeared that the executor never had a clear undisputed possession, it was necessary to produce the probate to prove his title under the will, and that the will itself, without the probate, was not sufficient evidence of his title d. But though an executor cannot maintain an action before probate, except upon his own actual possession, yet he may commence an action, and arrest a debtor to the estate of the testatore, and if he obtains probate before he declares, he may proceed with the action previously commenced £. An executor can take out a commission of bankrupt before probate; and on the other hand, if he administers the goods of the testator, he is liable to be sued at law or in equity, by the creditors of the deceased h. It may be here observed, that though an administrator derives his right from the letters of administration, yet, for some purposes, his interest relates back to the death of the intestate; thus he may have an action of trespass or trover for the goods of the intestate, taken by one before the letters be granted to him. So he may bring actions in respect of matters affecting leasehold, subsequent to the death of the intestate, and he will be liable to account for the rents and profits |