CH. 29. 2 Dall. R.223. 3 Mass. R. 258, Dean v. Dean. istration account of their intestate, as he was administrator of said John, deceased, allowed by the judge, and a balance of $627,14 found due from said Joseph's estate, to the plt. as administrator de bonis non. A decree passed that the defts. pay it to him. ART. 9. The power of a surviving executor to sell lands, &c. 1. In this case, land was devised to be sold, and the money to be divided, &c. but it was not said by whom the sale should be made; and the court decided that a sale made by the survivor of two executors, was good and valid, a fortiori, a sale made by both had been so; therefore executors are the proper persons to sell the testator's estate, ordered to be sold, when no persons in particular are named to make sale. § 2, Held, that an administrator can sell the estate of the intestate, only for the payment of debts he owed at the time of his death. But lands the administrator recovers on mortgage, or takes in execution, may, also, be sold for the payment of the charges of administration; and in granting a license to sell, the court may direct what part of the real estate shall be sold first, as lands not devised, the residuum, &c. Executors exrs. 7. Jack administer, ex officio; estate not devised, this is the statute and usage. 6 Mass. R. Hays & al. son, 149. 2 Dall. Rep. 292. 5 Mass. R. admr. ART. 10. Lands sold by executors, to pay debts, the effects. 1. In this action it was resolved that if a testator empower his executors to sell lands for the payment of debts, the purchaser holds them discharged against creditors, otherwise if the powers be to sell to pay legacies. This is the law in Pennsylvania, and is the law in Massachusetts, with, perhaps, the exception, if the land be sold to pay legacies by the testator's will, and then the lands be wanted to pay debts, the proceeds, wherever to be found, would be applied to pay debts, instead of the land; but if the creditor levy on the lands so sold, the levy must be good; for the creditor has his right by law, and it cannot be taken away by the testator's will in favour of leg atees. 2. Held, that an administrator has power to sell a leasetion of Gay, hold estate for ninety-nine years, as personal estate, without obtaining a license from the court, as in case of selling real estate for the payment of debts. Indeed the executor or administrator has of course, a disposing power over all the estate of the deceased whatever, except his freehold estates. Cannot sell real estate twelve years after licensed by court to sell. Mistake of day of sale in the notice is fatal. 15 Mass. R. 326. ART. 11. Administrators how accountable for effects abroad. 1. It is a general principle that an administrator is not pos accountable (if duly diligent) for choses in action till recovered; nor for goods or effects abroad, and beyond the reach of the laws of the country, till he can get them into his session. The foreign government where they may be, is not obliged to grant him administration, nor can he sue and recover them in that country, till he there has administration. CH. 29. Art. 13. 2. In this case the court decided that one domiciled in 2 Mass. R. England and dying there, and his administrator with the will 384, Selectannexed coming into this state, and filing a copy of the will in men of Bos. ton v. Boylthe probate office according to our acts of June 29, 1785, stou. and here taking administration with the will annexed, is not held to account here for the effects he received in England. §3. The testator directed that if certain bequests to his 2 Mass. R. wife should not be sufficient for her support, his executor al. apts. v. 168, Hunt & should sell certain lands for that end. The executor died, Holden. and after his death a stranger supplied her. Held, he had no action against the testator's estate. ART. 12. Where an executor may be sued &c. in his own 10 Mod. 254. name. § 1. An executor may be sued in his own name, on his own promise, to pay the testator's debt at a future time; so for rent or repairs on his own possession, and if named executor, it is but surplusage. But if he be charged as executor, though for non-repairs in his own time, judgment shall be of the testator's goods; for the plt. charges him in âuter droit, and he does not object; then the court, in such case, will give judgment according to the record. lard. 2. Where A is indebted to a feme covert executrix, and 12 Mod. 207, promises payment to her husband, the consideration being for- Yard v. Elbearance, he alone must bring the action; and if the husband die, his executor shall have execution, and it is no part of the testator's personal estate; yet when recovered it is a devastavit in the husband so far as he recovers. 2 Ld. Raym. 1210, Pond § 3. Where a will is not found, and administration is granted to A, and he appoints B, who collects the deceased's debts. Underand pays over to A, the will is found, but the executor cannot wood. sue B for money had and received. ART. 13. Administration void or voidable. § 1. When the question before the judge is, if he have jurisdiction of the subject matter or not, he decides at his peril. If he err and assumes admr. v. Willard, exr. a jurisdiction he has not, his act is void. Therefore, if a 2 Mass. R. judge of probate grant administration more than twenty years 120, Wales, after the death of the intestate, the act or grant is void, and not merely voidable; and this, whether he died before the act of March 9, 1784, was passed, or since; for the probate judge has no power to grant administration but in virtue of that act; and this expressly forbids any administration to be CH. 29. 5 Mass. R. 275, Jewett v. Jewett, adm. granted after the expiration of twenty years after the intestate's death. But when the question before the judge is only as to the manner of exercising his jurisdiction, there his mistake is corrected by appeal, and his act is not void, but only voidable, and so valid till avoided, by appeal, where one has an opportunity to appeal, and where not, by pleading, as error lies not in probate cases, 11 Mass. R. 507. 2. If an action be brought against an administrator, it is a good plea in bar, that since the action was commenced against him, he has been removed from office by the judge of probate; for now the plt. has no cause of action against the deft. in this or any other form. Held, the probate judge's power to grant administration on the estate of an inhabitant 543, Cutts & of the state, is confined to the county where he lived at his al. v. Haskins. death exclusively, and the doings of any other judge on such estate are void. 9 Mass. R. Toller's L. of 3. Administration void or voidable. It is void generally if there be an executor, though unknown, who still has a right to act. So if granted by a judge who has no power to grant it, as of a wrong county, though doubtful who is executor, or he is abroad, or if granted before his refusal, though he afterterwards refused, Com. D. Admr., B. 2, B. 10, so because he is a bankrupt; in these and other cases named, the administration is a mere nullity. So a nullity in S. Carolina, where granted by the ordinary during the executor's absence out of the state, he being qualified and capable, and having accepted the trust. 2. A judgment recovered against the intestate and revived against such administrator is a nullity, and a scire facias issued thereon, and sale of lands of the intestate at auction are also null and void, and his heirs can recover in clausum fregit against a bona fide purchaser under him, who purchased of the sheriff at such sale; sundry cases cited and points decided, 8 Cranch 9 to 30, Griffith v. Frazier. But it is only voidable, if only granted to a wrong person, or to two, and one is not entitled to it, as to a sister and her husband, Com. D. Admr. B. 8, or to the wife's next of kin, instead of the husband's, id. ; or on the refusal of an executor who had before administered, id.; or without citing the necessary parties id.; or to a stranger, or by fraud, or to a creditor before the next of kin refuses, Com. D. Admr. B. 6. It is stated in the English books, that administration is granted to the next of kin on account of his interest, and therefore if that cease, the reason ceases, and it is to be granted to the residuary legatee if there be one, whether there be any present residue or not, Com. D. Adm. B. 8; and if the wife be one and executrix, and die, it must be granted to her husband de bonis non. СH. 29. Art: 15. Wherever the administration is void, as above, the mesne acts of the administrator are void also, Com. D. Adm. B. 10, for all in such case is void ab initio ; but if only voidable, as above, there is another distinction if on an appeal his mesne Toller's L. of acts are void, as this suspends the former sentence, and on its Executors, 128, 132. reversal it is as if it never existed, 3 D. & E. 129; but if only voidable and on citation, all the mesne acts are valid. But void or voidable, a bonâ fide payment to the administrator of a debt due to the estate, is a legal discharge of the debtor, in analogy to a payment under a probate of a forged will, 3 D. & E. 125. But if revoked on appeal, as the administrator's power is suspended by the appeal, and in fact never is granted to effect, hence such payments are void. v. Williams. ART. 14. Administrator's contracts to convey intestate estates. 4 Mass. R. The defts., administrators of the estate of Obadiah Williams, 427, Fairfield bound themselves to convey a part of his estate to the plt. in fee in one year. It is no legal defence for them to plead his estate is insolvent, and they sold it by license of court to pay his debts, to the highest bidder, the plt. being present and requesting them to do it; nor, that since they so bound themselves the whole of the land has been covered by a town way; for this "is not a performance of the condition, nor is it any legal excuse for not performing it." The defts. ought to have procured some person to become the highest bidder, who would have conveyed to them or to the plt. And as to the road, they ought to have conveyed the land subject to it, for the soil remained in the former owner; and an easement as a right of way only would pass. One sells land as executor, and so names himself in the Mass. Sup. J. Court, Essex, deed. A power from a court to him as administrator, to sell, April 1803. will support the sale, Cook & ux. v. Griffin. 3 Bl. Com. rent.-1 Ld. ART. 15. Executors and administrators may retain and Hob. 10.take bonds of indemnity &c. § 1. Retainer is a remedy by act 11.-5 Co. of law, and is where a creditor is made executor or adminis- 31, 32, Coul trator of the debtor. As he cannot for the debt due to him ter's case. in his own private capacity sue himself as executor or admin- See debt for istrator of the debtor, without a manifest absurdity; the law Raym. 172, allows him to be in the same situation he would have been if Howell v. Bell; King . he had sued. May distrain for rent in arrear to the deceased, Ayloff. 3 Salk. 136; and may have error to reverse the testator's attainder, 1 Salk. 295. § 2. Executors and administrators suing out mortgages &c. See Mortgages. Baron and 3. Lands devised to executors to sell. "Where one de- Salk. 318, vises lands to executors to be sold, or his lands to be sold by Feme, see Ch. his executors, which is all one, if they sell not in convenient 135. time the heir may enter." "But when one devises, that his VOL I. 74 Сн. 29. executors shall sell his lands, they may do it at any time, for Art. 15. in this case they shall not take the profits;" they have but a chattel interest. Moss & al. v. 4 Hen. & Mun. 293, ginia Act on substituted mode of outlawry. See Ch. 80, id. § 4. This was debt on a joint and several bond, given by six Moss's adm. distributees of an intestate estate to indemnify the administrator for dividing the estate among them; conditioned "that they should pay him their respective proportions of all debts he should be compelled to pay, that should thereafter come against the said estate.' The action was against all the obligors; the capias was returned executed on only two of them, who appeared and defended the suit, and there was a discontinuance as to the rest by failure to take out further process against them; a judgment against the defts. in general terms was understood as against those only who appeared, though the declaration charged them all as in custody &c., and the caption of the entry of the judgment in the order book mentioned the name of all. Held, second, the plt. was not bound to sue out further process against the rest, but might take judgment against the two: 3. Indifferent whether the declaration was against the two only, or against all named in the writ, provided the bond was well described: 4. It was a sufficient assignment of a breach to say, "that the plt. on a day after the date of the bond, had paid by the consent of the defts., a debt that was then due from the estate aforesaid, and which as administrator he was bound to pay; and that the defts. had not paid him their respective parts or any proportion thereof, but the same had refused, although often requested." The officer's return as to three of the defts. was, that they were not inhabitants of his county to which the writ was directed, and a copy left for the fourth. There was no plea in abatement, that the proceedings were against two of six joint and several obligors, all alive. But the two, after various pleadings waived, joined in an issue of inquiry &c. The above decisions were by two judges against one. The case seems to have rested mainly on such English common law authorities as are in use in the United States generally; hence were cited, 9 Co. 119, by counsel; cited by judge Tucker against the decisions above, as to a discontinuance, 3 Bl. Com. 282, 296; 1 Wash. 372; a verdict aids it only after the deft. has appeared, (the forthcoming bond given by the two was not before the court, the supersedeas being only to the original judgment; Leftwich v. Stoval, 1 Wash. 303; Sayre v. Grymes, and Holcombe v. Pumal & al., 1 Hen. & M. 406, 407,) the material point, the declaration, he observed, was on a joint bond of six obligors, made so by the plts., all named in the writ, served on two of them only; alias capias awarded against the rest. Thought the plt. could not proceed against |