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the statute, it would be worthy of enquiry whether the committing the administration would in any sense be held void as it respected third persons whose rights would Beckham be affected thereby, however it might be in a contest with the executor. See on this head, 1 Wms. on Executors, 147; and for the propositions that the probate is merely operative as authenticated evidence, and not at all as the foundation of the executor's title, for he derives all his interest from the will and the property vests in him from the testator's death, see 1 Wms. on Executors, p. 159. These are the only cases decided in this court to which we have been referred, where the bond or administration were treated as void for want of authority to act on the subject matter. In Fisher v. Bassett, 9 Leigh 119, the true state of facts was not such as to justify the exercise of the authority in that case to grant administration. Yet, as the court had general jurisdiction to grant administration when there was an unrepresented estate of a dead man in question, the court, having cognizance of the subject matter, must determine for itself whether the circumstances justify the exercise of its jurisdiction in the particular case; and the grant is valid until revoked or the order is reversed. So in Burnley v. Duke, 2 Rob. R. 102, upon a question of authority it was held, in conformity with Fisher v. Bassett, ubi supra, that where administration and administrations d. b. n. were granted by a court which upon the facts should not have taken jurisdiction, the grants were valid, the orders standing unreversed and the grants unrevoked. And further, that when the grant to the administrator d. b. n. expired by his death, and the estate was unrepresented, it was competent for the court which might in the first instance have rightfully exercised jurisdiction, to make a valid grant; and the sureties in the last administration bond were bound. In Hutcheson, Sheriff, v. Priddy, 12 Gratt. 85, administration had been

committed to the sheriff before the expiration of three months from the death of the decedent; but it was held that the case fell within the principle of the cases referred to, and the grant was not void, although the court, having jurisdiction to commit an estate to the sheriff for administration, may have erred upon the facts in making the order at the time it was made. And in Andrews v. Avery, 14 Gratt. 229, it was decided that administration granted where the deceased lived and died out of the State, and left no estate within it, is not void; the judge who delivered the opinion of the court remarking, that the subject matter being within the jurisdiction of the court, to-wit, the appointment of a personal representative to a decedent who is without one, the court. making the appointment will be considered as having adjudged the question of jurisdiction in the particular case; and the order will not be void. A similar conclusion was arrived at in Cox v. Thomas, 9 Gratt. 323, as to a judgment of a Circuit court upon a different matter, but where the authority of the court to act came into question.

These seem to be all the cases in this court, where the authority of the court came directly into controversy; and, tried by the principle so uniformly affirmed, what is the effect upon the case under consideration? The order in question was made by a court whose general jurisdiction over the subject matter and of this particular case is not questioned. There was a decedent, and this court was the proper one to take probate of his will. A paper purporting to be the will of the deceased was exhibited at the November term, 1831, for probate, and was proved by the oath of one of the three subscribing witnesses thereto; which was ordered to be certified. The other subscribing witnesses were not examined, nor was any proof produced that the codicil revoking a legacy was in the handwriting of the testator. At the follow

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ing term of the court the executors named in the will refused to accept, the widow relinquished her right to administration, and thereupon administration with the will annexed was, on motion of Jonathan C. Gibson, committed to him, and he thereupon gave bond and qualified.

The will in this case was exhibited for probate before the passage of the act of 1834-5. Sess. Acts, p. 43. In the case of Worsham's adm'r v. Worsham's ex'or, 5 Leigh 589, it was decided by the whole court, (for Brockenbrough, who did not sit, had decided the cause in the court below, and his sentence was affirmed,) that before the act aforesaid, a testament of personal estate might be weil proved by a single witness. It was in consequence of this decision, and at the suggestion of the court, that the act of 1834-5 was passed, requiring the same proof in cases of wills of personalty as of realty. This will, so far as the duties of the executor or administrator c. t. a. were concerned, was a testament of personal estate. The real estate was specifically devised. The court then had the case of a decedent, with the will exhibited of the testator so proved as to justify the recording of the will as a will of personalty, and the grant of letters testamentary. That proof was entered on its record and, as the record recites, ordered to be certified. At the following term the executors refused to take upon themselves the burthen of the office, and the widow relinquished her right to administer; and then the estate was committed. The subject matter (Judge Moncure observes in Andrews v. Avery, ubi supra), to bring a case within the jurisdiction of a court of probate," is the appointment of a personal representative to a decedent who has none, and whose personal estate is therefore without an owner. The validity of an order making an appointment must depend on the existence of that state of facts." By this refusal of the executors named, the

personal estate was left without an owner. It was the duty of the court to take some order for its preservation. There was no controversy about the will or administration, to remind them of the necessity or propriety of appointing a curator to take care of it, pending any such controversy. It is manifest that the executor named and the widow supposed the action of the court had placed the matter in a condition for administration; and I think it equally clear the court so considered and adjudged when the estate was committed to an administrator c. t. a. The only matter required as to the body of the will was an order to record it, as a will of personalty, on the proof by one witness; though it would have been irregular, perhaps erroneous, to grant administration in the then state of the proof until action of some kind was had on the codicil which revoked a legacy. But this, if an error, was an error in the judgment of the court upon a question arising upon a matter of which they had full cognizance, and could not be enquired into incidentally. The order was never reversed; the grant remains unrevoked; by virtue of it, the administrator c. t. a. has possessed himself of the estate, and I think it cannot be alleged in favor of the sureties that the grant was merely void. I think the principle of the cases referred to governs this case, and fully justify this conclu

sion.

The position of the appellants does not receive much support, if any, from that class of cases cited, in which bonds taken by virtue of some statute were held to be invalid. For in this case the bond is regular, pursues the form prescribed by law for the bond of an administrator c. t. a. The objection is not that it is defective. on its face, but that there was no authority to take it. In the cases bearing on this subject, some confusion has arisen from judges not at all times distinguishing between the words void and voidable or defective.

But a

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careful examination of the cases themselves, and looking to the subject really discussed and the points decided, clears up the obscurity. With the exception of one case, Beckham hereafter adverted to, it will, I think, be found that there is no conflict in the decisions of this court on the subject, or discordance with the principle affirmed in the class of cases already commented on. In Stuart v. Lee, 3 Call 421, the bond was taken by a proper court, and was made payable to the Governor, instead of the justices. The suit was in the name of the successor of the Governor; and the plaintiff assigned a breach for the benefit of the party injured. The bond was in the penalty of £10,000. As the law then was the bond should have been made payable to the justices, and the penalty prescribed was £1,000. The court decided that, as the bond was not taken pursuant to law, no action could be maintained thereon by the plaintiff in his character of Governor or successor in office only. So in Branch v. Commonwealth, 2 Call 510, the bond was taken for collection of taxes under an act which had expired. It was held the sureties could not be made liable for taxes collected under a subsequent law. They were not liable under their contract. In Frazier v. Frazier's ex'or, 2 Leigh 642, the decree was against the surety in an administration bond, taken on committing the estate to an administrator c. t. a. The bond executed was in the form of the bond prescribed for an administrator of an intestate, and not that for an administrator c. t. a., and of course contained no condition for the benefit of legatees. The stipulation to administer the goods, &c., according to law, was held not to embrace the surplus assets payable to legatees or distributees; but only extended to disbursements made in the expenses of administration and the payment of debts; that if it went further, and embraced legatees and distributees, there would have been no necessity for the further provision