SECT. IV.

Of an executor before probate of the will.

As a consequence of the principle that an executor derives all his title from the will, his interest is completely vested [46] at the instant of the testator's death; and therefore before probate, that is, before the will is authenticated in the spiritual court, and a copy of it delivered to him, certified under the seal of the ordinary, he may lawfully perform almost every act which is incident to the office. (2) Not to mention the funeral, he may make an inventory, and possess himself of the testator's effects: (a) he may enter peaceably into the house of the heir, and take specialties, and other securities for the debts due to the deceased, (b) or remove his goods: (c) he may pay or take releases of debts owing from the estate: he may receive or release debts which are owing to it: (d) he may sell, give away, or otherwise dispose, at his discretion, of the goods and chattels of the testator: (e) he may assent to or pay legacies: (f) he may enter on the testator's term for years: (g) he may commence actions in right of the testator, as for trespass committed, or goods taken, or on a contract made in the testator's lifetime, although he cannot declare before probate, since, in order to assert such claims in a court of justice, he must produce the copy of the will, certified under seal as above

mentioned, or, as it is sometimes styled, the letters testamentary; but when produced, they shall have rela[47] tion to the time of suing out the writ. (h) So, if in the same right he file a bill in equity, a subsequent probate shall be equally available; (i) and, according to a late case, it seems sufficient if it be obtained at any time before the hearing. (k) But an executor having filed a bill in equity before probate, a plea that he had not proved the will was allowed, the hearing of the plea being considered the same as a hearing the cause upon bill and answer. (kk) So, an executor may before probate arrest a debtor to the estate, and shall be justified in that act by the relation of the subsequent grant. (1) But such relation shall not prejudice a third person; and therefore where the debtor, after being arrested by the executor before probate, paid a debt to J. S., and continued two months in prison, he was adjudged not to be a bankrupt from the time of the arrest, so as to invalidate that payment. (m)

An executor may also maintain actions on his own possession, as trespass, detinue, or replevin, for goods or cattle of the testator taken after the testator's death: (n) so, if he be entitled as executor to the next presentation to a living, and it become void, he, or his grantee, may maintain a quare impedit for it before probate. (o)

[48] So he may maintain actions, as trespass or trover, for such of the effects as never came into his actual possession, taken or converted after the testator's decease. (p) So

he may maintain actions on contracts either actually made with him subsequent to that event, or arising by legal implication, as assumpsit for the goods sold by him, (9) or for money due to the testator, received by the defendant after the testator's death. (r) In all such cases, the causes of action arise subsequent to the attaching of the plaintiff's right, and therefore he need not describe himself as executor, (s) and consequently no profert of the letters testamentary is requisite. So, where a reversion for years is vested in him in that character, he may avow without probate for the rent which accrued after the testator's death, but not for such as accrued before. (t)

Such are the acts, which an executor, although the will has not received the sanction of the spiritual court, is warranted in performing, and which his death before probate will not annul. (u)

On the other hand, if he have elected to administer, be [49] may also before probate be sued at law, or in equity, by the deceased's creditors, whose rights shall not be impeded by his delay, and to whom, as executor de jure or de facto, he has made himself responsible. (v)

If an executor die before probate, he is considered in point of law as intestate in regard to the executorship, (w) although he have made a will and appointed executors; and although he die after taking the oath, if before the passing of the grant.

If A. be executor for a certain period, and B. be nominated executor for the time subsequent, and A. prove the

(9) Off. Ex. 36, 37, in note 1. Anon. Ventr. 109. Bollard v. Spenser, 7 Term Rep. 358. Harris v. Hanna Ca. temp. Hardwicke, 204. Cockerill v. Kynaston, 4 Term Rep. 277.

(r) Nicholas v. Killigrew, Lord Raym. 436.

(s) Smith v. Barrow, 2 Term Rep.

477.

(1) Wankford v. Wankford, 1 Salk.

302, 307. Bollard v. Spenser, 7 Term Rep. 359.

(u) Off. Ex. 35. 11 Vin. Abr. 204. Anon. Dyer, 367. Wankford v. Wankford, 1 Salk. 306, 307.

(v) Com. Dig. Admon. B. 9. Plowd. Com. 280 b. 11 Vin. Abr. 205. Dulwich College v. Johnson, 2 Vern. 49. Off. Ex. 37.

(w) Off. Ex. Suppl. 74, 75, 182. 11 Vin. Abr. 68, 90.

will; after the time is expired, B. may sue without another probate. (x)

SECT. V.

Of the probate.-Jurisdiction of granting the same—of bona

notabilia.

I PROCEED now to consider the probate of a will. The jurisdiction of proving wills consequent, as will be hereafter shewn, on the power of granting administrations, regularly [50] belongs to the bishop of the diocese, or the metropolitan of the province, in which the parties resided at the time of their death. (y) But if a testator die within some peculiar jurisdiction, which is either regal, archiepiscopal, episcopal, or archidiaconal: in each of these the owner hath of common right the power of granting probate. This privilege is founded on the notion of an original composition between such owner and the ordinary of the diocese for that purpose. (≈)

Courts baron, which have had the probate of wills from time immemorial, and have always continued that usage, are also entitled to this species of jurisdiction; but they can claim it only by prescription. (a)

By custom also the probate of wills of burgesses belongs to the mayors of some boroughs in respect of lands devisable within the same; yet, as to personal property, the will must be proved before the ordinary. (b)

(x) Com. Dig. Admon. B. 9. Ca. Ch. 265. 11 Vin. Abr. 56.

(y) 3 Bac. Abr. 34, 39. Com. Dig. Admon. B. 6. 4 Burn. Eccl. L. 188.

(z) 3 Bac. Abr. 39. Denham v. Stephenson, Salk. 40, 41. 11 Vin.

Abr. 77.

(a) 3 Bac. Abr. 39. Off. Ex. 44. Denham v. Stephenson, Salk. 41. Atkins v. Hill, Cowp. 286.

(b) 3 Bac. Abr. 40. Off. Ex. 45. Off. Ex. Suppl. 10.

But in general a probate can be granted only in the court of the ordinary, or of the metropolitan.

[51] If all the effects at the time of the testator's death lie within one diocese, the executor ought regularly to appear before the bishop, or his surrogate, and prove the will.

But if the testator hath left bona notabilia, or effects to the value established by 92 canon Jac. 1, namely a hundred shillings in two distinct dioceses, or in several peculiars within the same province; then the will must be proved before the metropolitan, by way of special prerogative; (c) whence the court where the validity of such wills is tried, and the office where they are registered, are called the prerogative court, and the prerogative office, of the provinces of Canterbury and York. (d) So if there be bona notabilia in those several provinces, the archbishops shall in each of them grant a probate according to the bona notabilia in their respective provinces. Each of them has supreme jurisdiction, and neither can act within the province of the other. (e) If there be bona notabilia in different dioceses of one province, and in one diocese only of the other; in respect to the former, the archbishop shall have the probate ; in respect to the latter, the particular bishop. (ƒ)

[52] So if the testator, not in itinere, die in one diocese, not having any goods there, but having bona notabilia in another diocese, the archbishop shall grant the probate. (g)

So if the goods be in several peculiars of a bishop's diocese, in that case probate shall not be granted by him, but by the metropolitan, inasmuch as peculiars are exempt from ordinary jurisdiction. (h) But where the testator dies pos

(c) 2 Bl. Com. 509. 3 Bac. Abr. 36. Com. Dig. Admon. B. 3. Off. Ex. 45, 48. 4 Burn. Eccl. L. 191. Roll. Abr. 909. 11 Vin. Abr. 79. Swinb. p. 6, s. 11.

(d) 2 Bl. Com. 509. 11 Vin. Abr. 56, pl. 7. Vin. Harg. Co. Litt. 94.

(e) Bac. Abr. 36. Burston v. Ridley, 1 Salk. 39. Shaw v. Stough