31

7. But letters of administration, although conclusive within their direct scope and operation, as matter of evidence, and not by way of estoppel in pleading,30 are not conclusive of any question of fact incidentally implied by the granting of such letters, on the death of the testator, especially where such fact arises collaterally in a case to which the personal representative is not a party. So far as the particular suit is concerned, where the personal representative is a party, the letters testamentary or of administration are treated as conclusive evidence of all facts implied in their grant, especially of the decease of the testator or intestate.82

8. It is a question of considerable interest how far those courts before which the probate of wills may come up for construction are at liberty to look into the original will, in order to gather the true import of the same from the manner in which the instrument is written or punctuated. It is certain that in very many cases this has been done by eminent equity judges, even where probate of the will had been granted in fac-simile.33

Cockell, 9 Vesey, 376; Morgan v. Annis, 3 DeG. & Sm. 461. In this latter case, Knight Bruce, V. C., is reported to have said, he had no doubt a court of equity had jurisdiction to decide on the validity of the execution of a testamentary power over personalty, as with reference to the donee's state of mind at the time of the alleged execution. This may be so, but we should expect an American court to hold that question conclusively settled by the probate.

30 Graysbrook v. Fox, Plowden, 275, 282; Mercella's Case, 9 Co. 24 a, 31 a; Hensloe's Case, 9 Co. 36 b, 41 a.

"Thompson v. Donaldson, 3 Esp. N. P. C. 63; Moons v. DeBernales, 1 Russ. C. C. 301.

32 Newman, Admr., v. Jenkins, 10 Pick. 515.

23

Havergal v. Harrison, 7 Beavan, 49; Oppenheim v. Henry, 9 Hare, 802, and n., where Vice-Chancellor Wood said, that if he were to look into the original will to see if "on" were not written "or," he " did not know where such a practice might stop. It might be said that a whole line was left out, which the court was to call for the original will for the purpose of inserting. It was different from the case of a question arising on the punctuation of the will, or on the introduction of a capital letter or other mark indicating where a sentence or clause was intended to begin, and which might affect its sense."

In one case, so eminent a judge as the present Lord Justice Knight Bruce desired it to be understood that he "had sent for and examined the original will, and had been influenced by it in [his] construction." And in Shea v. Berchetti, the Master of the Rolls, Sir J. Romilly, held that whether the court of probate grants a fac-simile probate or not, the Court of Chancery is bound to look at anything in the original will which may aid it in coming to a correct conclusion as to the construction to be put upon its contents. But Lord Cranworth, Chancellor, in Gann v. Gregory, disapproved of this practice in very decided terms, and said that, although Lord Eldon had done it under special circumstances, it could not be justified as a general practice. And Kindersley, V. C., in Taylor v. Richardson,37 said the Court of Chancery was bound to look at the will as presented upon the probate. And Mr. Justice Williams, as the result of all the cases, fully concurs in the opinion of ViceChancellor Wood in Oppenheim v. Henry,33 that if the fac-simile probate does not present the will truly, application should be made to the probate court for an amendment. This would seem to be the correct practice, unless the will contains something which it is not practicable to transfer to the probate. But in those courts where no registered copy of the will is made, but the original will remains on file as the only record of its contents, we do not see any objection to an inspection by any other court when its construction comes in question.

38

9. The decisions in the American courts are considerably numerous upon the conclusive effect of the probate, or refusal of probate of a will in the probate court. As a general rule it must be very obvious that such a decree will be conclusive, and will

Compton v. Bloxham, 2 Coll. 201.

35 18 Beav. 321.

3 DeG., M. & G. 777.

#2 Drewry, 16.

1 Exrs. 491, 492.

be treated as an adjudication in rem. This is declared, more or less directly and explicitly, in the following cases.39

10. But this of course will not preclude the proper court, having jurisdiction of the question, from revising the decree of the probate court, allowing or rejecting a will, upon a petition from any party interested under the will, or in opposition to it, as the

Tibbatts v. Berry, 10 B. Mon. 473; Herrington v. Herrington, Walker, 322; Moore v. Tanner, 5 Monr. 42; Brown v. Wood, 17 Mass. 68, 72; Barney v. Chittenden, 2 Green, (Iowa,) 165; Jackson v. Robinson, 4 Wend. 436; Fortune v. Buck, 23 Conn. 1; King v. Bullock, 9 Dana, 41; Campbell v. Logan, 2 Bradf. Sur. Rep. 90; Thompson v. Thompson, 9 Penn. St. 234. The same rule prevails in most of the states, in regard to devises of real estate, as to legacies of personalty. Parker v. Parker, 11 Cush. 519. The will is not admissible as evidence until proved in the probate court, and with that it is conclusive, until the probate is set aside by some proceeding, either by petition or appeal brought to operate directly upon that point. Dublin v. Chadbourne, 16 Mass. 433; Shumway v. Holbrook, 1 Pick. 114; Laughton v. Atkins, id. 535, 549; Rogers v. Stevens, 8 Ind. 464; Wilkinson v. Leland, 2 Pet. U. S. 627, 655; Fotheree v. Lawrence, 30 Miss. 416; Swazey v. Blackman, 8 Ham. 5. But see Hays v. Harden, 6 Penn. St. 409; Rowland v. Evans, 6 Penn. St. 435. The rule is different as to real estate in England and in some of the American states. Bagwell v. Elliott, 2 Rand. 190. And it has been held that the decree of the probate court, being a proceeding in rem, must be treated as conclusive as to infants and persons under disability at the time. Redmond v. Collins, 4 Dev. 430. Proof of the will in the probate court is only conclusive as to lands within the state. Robertson v. Barbour, 6 Monr. 523; Sneed v. Ewing, 5 J. J. Marshall, 460. Proof before the register of the court of probate, when he acts of the judge, is of the same validity as if made before the judge. Loy v. Kennedy, 1 Watts & Serg. 396. Holiday v. Ward, 19 Penn. St. 485; Hilliard v. Binford, 10 Ala. 977.

in the place

The proceeding before the probate court for establishing a will, being regarded in the nature of a proceeding in rem, all persons interested in the question have a right to become parties at any time before the final decision. Sawyer v. Dozier, 5 Iredell, Law, 97; Patton v. Allison, 7 Humph. 320. See also as bearing upon the general question of the conclusiveness of the decrees of the courts of probate, McFarland v. Stone, 17 Vt. Rep. 165; Thompson v. Thompson, 9 Penn. St. 234; Tebbets v. Tilton, 4 Foster, 120; Wilson v. Edmonds, id. 517; Merrill v. Harris, 6 id. 142; Clark v. Pishon, 31 Me. Rep. 503; Patten v. Tallman, 27 Me. Rep. 17.

case may be. And where there is no express statutory provision giving jurisdiction to some superior court, in petitions for rehearing or revision of the decrees of the probate courts, it pertains to those courts, as one of the necessary incidental powers of all tribunals, not infallible, to entertain petitions, under reasonable conditions and for sufficient grounds alleged therein, for the purpose of revising or reconsidering their own decrees.40

11. But where the will was admitted to probate and letters testamentary issued and no appeal taken, the accounts of the executor settled and he finally discharged by the court, it was held the court could not then receive evidence of republication after a certain date, in order to bring real estate acquired by the testator after the date of the will within its operation.41

Campbell v. Logan, 2 Bradf. Sur. Rep. 90; Walworth, Chancellor, in Muir

. The Orphan House, 3 Barb. Ch. Rep. 477, 481

CHAPTER II.

THE APPOINTMENT OF, AND WHO MAY BE EXECUTORS.

1. The term executor originally embraced what are now called administrators.

n. 1. History of the law as to settlement of intestate estates.

2. The nomination of an executor alone constitutes a will, and requires probates.

3. All persons may be executors unless specially disqualified. Corporations. Copartnerships.

4. An alien may be executor, but he must generally be resident.

5. Infants may be named executors, but cannot act except by others.

6. Married women may be executors, but can only act concurrently with their husbands.

7. But they may execute powers without such concurrent action.

8. Crime, immorality, or vicious habits, no absolute disqualification. Probate

court may remove.

9. The executor must derive his appointment from the will.

10. No particular form required in appointing an executor.

11. Advisers and coadjutors should join in office of executor.

12. Executors may be appointed by power in will.

13. The American law corresponds with the English in most respects.

14. Different executors may be appointed with distinct duties.

15. Executorship in different countries may be given to different persons.

16. Executorship may be made dependent upon conditions.

17. The executor of an executor cannot administer in America.

n. 22. Cases stated which do not amount to the appointment of an executor.

§ 6. 1. AT common law, the term executor originally embraced what is now called an administrator, or executor constitutus, as well as one appointed by the testator, or executor testamentarius; but at present the term is limited to the latter exclusively.1

1 Wms. Exrs. 197. It is scarcely necessary to mention, as matter of history, the thing is so well understood, and is of so little practical importance at the