And the probate of testaments concerning lands only, and no goods contained therein, ought not to be in the spiritual court; and if there be a suit to compel to have the probate of such testaments, a prohibition lieth. [Netter v. Brett or Percival,] Cro. Car. 396. (9)

Will of goods shall

lands and

be proved

But where a will is concerning lands and goods, and so is a mixt will; the probate thereof shall be intire in the spiritual court, and ought not to be of parcels: but the probate of the will for the land will not prejudice the heir; for it shall not be in eccleevidence at the common law; nor the witnesses being there court.] examined, shall such examinations be given in evidence at the common law. Cro. Car. 396. S. C. (1)

And where a will doth contain in it lands and goods generally, the courts temporal will not grant a prohibition to stay the probate thereof for the whole (2); but if in a special case, it be alleged, that the testator was of non-sane memory, or the like, a prohibition will be granted for the whole. For if the spiritual

(9) Nor is there any occasion to prove a will in the spiritual court, in order to entitle a legatee to recover his legacy out of the real estate. Tucker v. Phipps, T.1746, 3 Atk. 361. Nor is probate necessary for a will appointing testamentary guardians. Gilliat v. Gilliat and another, 3 Phill. Rep. 222.

(1) Probate will be granted even where it is doubtful whether some part of the property be not freehold; for though it would be wholly inoperative as to that, it will enure as to personalty bequeathed. Thorold v. Thorold, 1 Phill. Rep. 9.

(2) Thus in Partridge's case, 2 Salk. Rep. 552, 553. (overruling Marquis of Winchester's case, 6 Rep. 23.) prohibition to probate of will of lands and goods on suggestion of non compos, was denied; the court saying, that the statute of H. 8. never intended to lessen the jurisdiction of the ecclesiastical court as to probate of wills and to grant a prohibition might be inconvenient; for without a probate the executor cannot sue for debts, which by this means may be lost and the will unperformed. As for granting it quoad the land, it would be vain; because it is no evidence either pro or con in any court of law, but a proceeding coram non judice: yet it is good as to the goods; and in Lady Chester's case, 1 Ventr. Rep. 207., Hale said, that the ecclesiastical courts may prove a will which contains goods and lands, though formerly a prohibition used to go quoad the lands. See 1 Mod. R. 90. 2 Sid. 143. Hardr. 131. 2 Rol. 315. 1 Sid. 141. And in a case where a legacy of 800%. was bequeathed to E. B., payable at twentyone or marriage, and E. B. died unmarried before twenty-one, as assets were admitted, equity will not grant an injunction to stay proceedings in the ecclesiastical court for recovery of the legacy, as they have a proper jurisdiction for legacies charged on personal estate (Bassett v. Bassett, M. 1744, 3 Atk. 207.); and equity has always followed the rule of the ecclesiastical court, to whom the jurisdiction in personal legacies properly belongs. Reynish v. Martin, T. 1746 3 Atk. 333.

VOL. IV.

siastical

Will of goods not effectual before probate.

court should be suffered to proceed, and prove the will there, and allow it there for the personal estate; it would be an evidence to induce the jury, upon a trial at law, to pass for the will as to the lands and tenements. E. 12 J. Egerton and Egerton, Cro. Jac. 346. (2)

7. But a devise of a personal estate is not looked upon to be of any effect until probate is made of the will by the executor; [239] neither can an executor or other person give a will in evidence concerning a personal chattel without producing the probate; for this will is no will until it has received a sanction, or an allowance of it, in the spiritual court; for they are to judge whether it be a will or not; and the temporal courts are not to look upon it as a will till probate be made: And in an action of trover for goods which a testator gave to his sister in his lifetime, brought against his executor for them who would have given in evidence a former will, to have shewn that he had no power to give those goods; this was refused, because he ought to have produced the probate. Chaunter and Chaunter, 1708. Viner, Executors, A. a. 20.

And a probate obtained in the ecclesiastical court cannot be set aside in any other other court either of law or equity. In the case of Barnsley and Powel, Aug. 5, 1748, a probate of a forged will was obtained in the ecclesiastical court, by a fraud upon the plaintiff in procuring his consent to such probate; and by the like means a decree in the court of exchequer was obtained to establish the said will as to the real estate. Upon these facts being disclosed, and a bill filed in chancery, an issue was directed to try the validity of the will at law, which the jury found to be forged. And the question was, what could now be done, especially with respect to the personal estate; and the decree in the exchequer likewise standing in the way with respect to the real estate. Lord Hardwicke said, as to the decree in the exchequer, the same having been obtained by fraud, though he could not set it aside, yet he could decree that no use should be made of it. As to the personalty, undoubtedly the jurisdic

(3) But such evidence could not be admitted. See Netter v. Brett, Cro.Car.396. supra, from which it seems that the probate would be entire; and see Partridge's case in last note. Though a will may be good at law, it may be set aside in equity for a fraud. 1 Ch. Rep. 12. 66. (last edit.), and Goss v. Tracey, M. 1715, 1 P. Wms. 288. 2 Vern. 699. S. C. But see contra, James v. Greaves, 2 P. Wms. 270. Bennet v. Vade, 2 Atk. 324. Webb v. Clavendon, ib. 424. Anon. 3 Atk. 17. The question, whether the testator in a will of land is or is not compos, is entirely at law, and must be tried there (see Goss v. Tracey): viz. on an issue directed by the court of equity into the county where the will was made. Ibid. However, a court of equity has no jurisdiction to determine on the validity of a will either of real or personal estate. Jones v. Jones, 1817, T., 3 Meriv. 162.

tion of wills of personal estate belongs to the ecclesiastical court, according to the rules of which court it must be tried, notwithstanding that the will is found forged by a jury at common law by examination of witnesses; which is sometimes unfortunate, causing different determinations: nor can this court help it. But in the present case his lordship decreed, that the defendant should consent in the ecclesiastical court to a revocation of the probate; and though he would not then decree the defendant a trustee of the personal estate (4), lest it might create some jealousy of infringing on the ecclesiastical court, yet he decreed an account of the personal estate to be taken, and the [240] same to be paid into the bank for the benefit of the parties entitled. 1 Vez. 119. 284. (5)

8. He that is named executor cannot be precisely compelled Refusal of to stand to the will, and undertake the executorship, unless he an executorship. have already meddled with the goods of the testator as executor; for then, he is not only to be compelled to perform the office of an executor, but also if he should refuse, and the ordinary commit the administration unto him, this refusal is void, and he shall be charged as executor. Swin. 384.

Therefore if the executor named in the testament resolve not to stand to the executorship, but to refuse the same; then must he beware that he do not administer the goods of the deceased as executor; for having once administered as executor, he may at any time after be compelled to undergo the burden of an executor, and also may be sued as executor by the creditors of the testator; though he cannot sue others as executor, for that he hath not the will under the ordinary's seal. Swin. 469.

And a person is then said to administer as executor, so as thereby he may be compelled to stand to the executorship, when he doth perform those acts which are proper to an executor;

(4) As is the general course of courts of equity when probates are obtained by fraud. Tucker v. Phipps, cited in Barnesley v. Powell. Or the fraud affects only a part of the will. Marriot v. Marriot, Stra. 666.

(5) And in Montgomery v. Clark, 2 Atk. Rep. 379., lord Hardwicke said, he had often thought it a very great absurdity that a will which consists both of real and personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated on paper depositions only in the ecclesiastical court, because they have a jurisdiction on account of the personal estate disposed of by it. He wished gentlemen of abilities would take this inconvenience and absurdity into their consideration, and find out a proper remedy by the assistance of the legislature. But it seems that, as the law now stands, the court of chancery cannot interpose so as to stop the proceedings in the ecclesiastical court on wills of goods, or mixed wills of lands and goods. See ante, 238 a, note (2).

as to pay the debts due by the testator, or to receive any debts due unto the testator, or to give acquittances for the same, with other such like acts. Swin. 469.

But if a man do those acts which are not proper to an executor, he is not said to have administered as executor to the effect as aforesaid; as to feed the cattle of the deceased, lest they should perish; or to take into his custody the goods of the deceased, to the end they may be safe from being stolen or purloined; or to dispose of the testator's goods about the funeral (6): for these be deeds of charity common to every christian, and not peculiar to an executor. Likewise, to make an inventory of the goods of the deceased, is not to administer as executor; or to deliver to the wife her convenient apparel; or to take the testator's horse and ride him, or to use him as his own, supposing him not to be the testator's but his own; or to take the goods of the testator by his lawful gift. And generally, whosoever as a mere trespasser entereth on the goods of the testator, whether it be to things living, as horse, kine, sheep, or dead things, as pots, [241] pans, dishes, converting the same to his proper use, and not to the use of the testator, as to the payment of the testator's debts or legacies, doth not administer as executor. Swin. 471, 472. Howbeit, in these cases and such like, whosoever feareth to be adjudged executor administering of his own wrong, the most safe course is, not to meddle at all, but utterly to abstain from all manner of use of the testator's goods; and namely, let him beware that he do not sell any goods, or kill any cattle of the deceased. Swin. 472. [The next of kin, in case of intestacy by improper intermeddling, becomes only an executor de son tort, and cannot be forced by excommunication to take on him the administration of such goods, when it is alleged that he had not intermeddled. (7)]

Further, although a person hath not meddled with the goods of the testator, and is therefore not compellable; yet if a legacy be left to him, he may be compelled to stand to the executorship, or else to lose his legacy. Gibs. 469.

The refusal to take upon him the executorship cannot be by word only; but it must be entered and recorded in court. Swin. a. 443.

And when an executor hath once administered, he cannot afterwards refuse to prove the will, and take upon him the executorship; and in that case the ordinary ought not to accept such a refusal, but to compel him to prove the will, and take upon him the executorship. Yet if the judge doth admit one to

(6) Stokes v. Porter, Dy. 166 b. But until something is done upon a will, no one has an authority even to bury. George v. George, M. 1811, 18 Ves. 296.

(7) Ackerley v. Oldham, 1 Phill. Rep. 248.

administer, notwithstanding his having been formerly refused, it shall stand good. Swin. a. 443.

of his own

wrong.

9. An executor of his own wrong is such as takes upon him Executor the office of an executor by intrusion, not being constituted by the testator or deceased, nor (for want of such constitution) substituted by the ordinary to administer. Went. 171. (8)

If a man gets goods of an intestate into his hands after administration is actually granted, it doth not make him executor of his own wrong; but if he gets the goods into his hands before, though administration be granted afterwards, yet he remains chargeable as a wrongful executor, unless he delivers the goods over to the administrator before the action brought, and then he may plead plene admistniravit. 1 Salk. 313. (c)

An executor of his own wrong cannot bring an action; for he cannot shew the testament containing his name, as he ought. Br. Administrator, 8.

Neither can he retain for his own debt or legacy. Mo. 527. [242] Poph. 125. (d)

But he renders himself liable to the action, not only of the right executor, but also to the suits of the testator's creditors; yet only so far as the goods which he so wrongfully administered amount unto. Swin. 339. Harr. Justin. 87. Vin. Executors, E. a. 4, 5.

Webster v. Webster. In this case the defendant did not take out probate of the testator's will till sixteen years after his decease, but the court allowed the plea of the statute of limitations, on the ground that he had taken possession of the personal

(8) And the slightest circumstance of intermeddling with intestate's goods, will constitute a man executor de son tort. Edwards v. Harben, 2 T. R. 97. 587.597.; and see the instances in that case. Living in the house, and carrying on the trade of deceased (a victualler), is sufficient intermeddling to make a defendant executor de son tort, and as such liable de bonis propriis, notwithstanding his wife proved the will after the action commenced. Hooper v. Summersett, E. 1810, Wightw. 16.; and see Curtis v. Vernon, 3 T. R. 587. Vernon v. Curtis (in error), 2 H. Bl. 18. Acting under a power of attorney given by an executor, after his death, makes an executor de son tort. Cottle v. Aldrich, 4 M. & S. 175.

(c) Per Holt C. J. S. P. Curtis v. Vernon, 3 T. Rep. 587.; affirmed in the exchequer chamber, 2 H.Bla. 18. See Coulter's case, 5 Rep. 30. and 2 Bac. Abr. 390.

(d) Though he be a creditor of a superior nature. Curtis v. Vernon, ubi supra.

But if a wrongful executor afterwards procure administration, he may plead this puis darrein continuance to justify a retainer. Vaughan v. Brown, 2 Stra. 1106. If a creditor sell goods after the death of the debtor, under a bill of sale, which is set aside as fraudulent, because possession did not accompany and follow it, he may be sued as executor de son tort. Edwards v. Harben, 2 T. Rep. 587.