So long as a qualified executor is capable of exercising the
authority with which he has been invested by the testator, that
authority cannot be conferred either with or without limitation by
the court of ordinary on any other person. And if, during such
capability of the executor, the ordinary grant administration,
either absolute or temporary, to another person, that grant is
absolutely void.
If a judgment be rendered against one as executor who is not
executor, it does not bind the estate of the testator, and an
execution upon such a judgment could not legally be levied upon
such estate.
By the law of South Carolina, administration
durante
absentia testatoris cannot be granted after probate of the
will and letters testamentary granted.
The acts of a tribunal upon a subject not within its
jurisdiction are void.
By the law of South Carolina, the thirty day rule is substituted
for a
scire facias to a judgment in those cases only where
lapse of time prevents the plaintiff from suing out execution.
Until probate of the will and letters testamentary are obtained,
the executor cannot obtain any judgment, because it cannot appear
that he is executor. There is therefore an absolute necessity for
appointing some person who, until probate, shall take care of the
estate.
This is not the case with an executor who, after taking out
letters testamentary, absents himself from the state. He is still
capable of performing and is bound to perform all the duties of an
executor. There is no legal disability to him, and consequently
there is no necessity for transferring to another those powers
which the testator has conferred upon a person selected by
himself.
The power of appointing an administrator
durante
absentia of an executor who has proved the will, was not
exercised by the ordinary in England anterior to the statute 38
Geo. III, c. 87, which first gave him that power.
To give jurisdiction to the ordinary, a case in which, by law,
letters of administration may issue must be brought before him.
In a common case of intestacy, letters of administration must be
granted by the ordinary to some person, and although they should be
granted to one not entitled by law, still the act is binding until
annulled by the competent authority.
If administration is granted on the estate of a person not
really dead, the act is void. If on the estate of a deceased person
whose executor is present and in the constant performance of his
executorial duties, such appointment is absolutely void.
The appointment of an executor vests the whole personal estate
in him; he holds as trustee for the purposes of the will, but he
holds the legal title in all the chattels of the testator.
The executor is, for the purpose of administering the chattels
of the testator, as much the legal proprietor of them as was the
testator himself while alive, and this interest is incompatible
with any power in the ordinary to transfer these chattels to any
other person by the grant of administration.
Such grant conveys no right; it is a void act.
Letters testamentary, when once granted, are not revocable by
the ordinary; he cannot annul them or transfer the legal interest
of the executor to any other person.
The cases in which administration has been granted
notwithstanding the existence of a will are cases in which it is
not apparent that there is any other person possessing a right or
cases in which that person is legally disqualified from acting, as
where administration is granted pending a dispute respecting a
will, it is not certain that there is an executor or a will.
If administration be granted during the minority of an executor,
it is because the executor is legally disqualified from acting, and
indeed has not taken and could not take upon himself the trust. He
may, when of age, reject all the right and powers conferred by the
will, and consequently the interest is not a vested interest.
So in the case of an absent executor who has not yet made
probate of the will and qualified, he having no evidence that he is
executor and not being able to act as one and having it in his
power to renounce the office, the ordinary is not yet deprived of
that power which he possesses to appoint a person to represent a
dead man who has no representative. But that an executor who has
proved the will is absent is no reason for granting administration.
An absent executor may maintain a suit while he is actually
resident abroad; nor is his absence a good plea in bar.
This was an action of trespass
quare clausum fregit
brought by the plaintiff in the circuit court (who was also
plaintiff in error), to recover a tract of land lying in the
District of South Carolina and in the possession of the defendant,
to which the plaintiff asserted a title derived from a certain
Joseph Salvadore.
Both parties admitted that Salvadore was legally seized of an
estate in fee in the land in dispute. It appeared further that
Salvadore had executed several bonds in favor of a certain Daniel
Bordeaux; that Bordeaux brought an action against Salvadore on
these bonds and obtained thereon a judgment by default which was
entered up and signed on 30 August, 1786; that no further steps
were taken in the cause, until 2 January, 1787, when an execution
issued thereon and was lodged in the sheriff's office on the same
day; that Salvadore departed this life on 29 December immediately
preceding. Salvadore left a will and two or three codicils by which
he appointed his three daughters, a certain William Stevens, and a
certain Joseph Dacosta his executors. All these persons were absent
out of the state excepting Dacosta, who proved the will and
codicils and regularly qualified as executor thereto on 5 January,
1787. He continued to reside in the City of Charleston, South
Carolina, until sometime in the year 1789, when he went to
Savannah, in the State of Georgia, where he continued to reside
Page 12 U. S. 10
until November, 1790. On 2 October, 1790, one James Lamotte
requested and obtained from the ordinary of Charleston a citation
in behalf of the principal creditor of Salvadore, who was
Bourdeaux, to show cause why letters of administration with the
will annexed should not be granted to him. On the return of the
citation, no cause being shown to the contrary, the ordinary did,
on 8 October, 1790, grant general letters of administration with
the will annexed on the estate of Salvadore to Lamotte. A
certificate was also obtained from the ordinary by which it
appeared that it was the custom of the ordinary court to grant
letters of administration
durante absentia of the
executor. Bourdeaux, on 27 January, 1791, obtained a rule from the
court of common pleas against Lamotte, as administrator of
Salvadore, to show cause within thirty days why the judgment
obtained against Salvadore as aforesaid should not be revived and
an execution issue thereon. This rule was made absolute on 15
March, 1791, "subject to future argument." On 16 April following
(no further argument or proceeding having been had on the said rule
and no court intervening in the meantime), an execution issued on
said judgment against Lamotte, administrator, &c., was lodged
in the sheriff's office and levied upon the land in question by the
sheriff on 11 May, 1791. The land was sold at public outcry to the
highest bidder on 6 June, 1791, and by a deed of the same date was
conveyed by the sheriff to Peter Freneau, the purchaser. On 16
July, 1796, a decree was rendered in the suit,
Butler v.
Bourdeaux, directing the said Peter to convey to such person
as Butler should appoint. In pursuance of this decree, Peter
Freneau conveyed to Samuel Jackson, under whom Griffith, the
plaintiff in this case, claims by regular conveyances. Frazier, the
defendant, represents the heirs of Salvadore.
On the motion of the defendant, the circuit court instructed the
jury that the letters of administration granted to James Lamotte
were totally void; that therefore the judgment of Bourdeaux was not
revived against the estate of Salvadore; that the sale and
conveyance by the sheriff passed no title to the purchaser; and
that
Page 12 U. S. 11
the evidence was not sufficient to maintain the plaintiff's
action. The jury found a verdict for the defendant, and judgment
was rendered in his favor. The plaintiff excepted to the opinion of
the court and sued out a writ of error to the judgment.
Page 12 U. S. 19
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
The plaintiff in error, who was also plaintiff in the circuit
court, brought a writ of trespass
quare clausum fregit in
order to try his title to certain lands lying in the District of
South Carolina which were in possession of the defendant.
The title of the plaintiff, which constituted the sole question
in the cause, appeared, on the trial, to be as follows:
Joseph Salvadore, being seized of the lands in which the
trespass is alleged to have been committed, departed this life
sometime in the year 1786, having first made his last will in
writing, in which he named several executors, one of whom, Joseph
Dacosta, made probate of the will and took upon himself the burden
of executing the same, after which, in the year 1789, he left the
State of South Carolina and resided in Georgia. In the year 1790,
letters of administration on the goods of Salvadore, unadministered
by Dacosta his qualified executor, were granted to James
Lamotte.
In August, 1786, a judgment was obtained by Daniel Bourdeaux
against Salvadore. In January, 1791, a thirty-day rule, which, by
an act of the State of South Carolina, was in certain cases
substituted in the place
Page 12 U. S. 20
of a
scire facias, was issued to revive this judgment
against Lamotte as administrator of Salvadore. This role being
served and returned, the following endorsement was made on it:
"15 March, 1791, made absolute subject to a future
argument."
"
Fi. fa. 16 April, 1791."
An execution issued on this judgment, under which the land was
sold and was conveyed by the sheriff to Peter Freneau by a deed
dated 6 June, 1791. On 16 July, 1796, a decree was rendered in the
suit,
Butler v. Bourdeaux, directing the said Peter to
convey to such person as Pierce Butler should appoint. In pursuance
of this decree, Peter Freneau conveyed to Samuel Jackson, under
whom the plaintiff claims by regular conveyances.
On the motion of the defendant, the circuit court instructed the
jury that the letters of administration granted to James Lamotte
were totally void; that therefore the judgment of Bourdeaux was not
revived against the estate of Salvadore; that the sale and
conveyance by the sheriff passed no title to the purchaser; and
that the evidence was not sufficient to maintain the plaintiff's
action. The jury found a verdict for the defendant, and judgment
was rendered in his favor. The plaintiff excepted to the opinion of
the court, and has sued out a writ of error to the judgment.
The sole defect alleged in the title of the plaintiff being in
that part of it which depends on the sale and conveyance of the
sheriff to Peter Freneau, the validity of that sale is the
principal if not the only question in the cause. In support of it
the plaintiff contends,
1st. That the letters of administration, being
durante
absentia of the executor, were properly granted to James
Lamotte.
2d. If the ordinary erred in granting these letters, still
Lamotte was administrator
de facto, and his acts bound the
estate of Salvadore until those letters should be revoked.
Page 12 U. S. 21
3d. That the judgment on which the execution issued was properly
revived by a court of competent jurisdiction, and its judgment can
be questioned only in an appellate court.
The negative of these propositions is maintained by the
defendant in error.
That the appointment of an executor and his acceptance of the
office constitute a complete legal owner of the personal estate of
the deceased is admitted, but it is contended that these acts
suspend without annihilating the power of the ordinary. So long as
the executor is capable of exercising the authority with which he
has been invested by the testator, it can be conferred on no other
person; but when he becomes incapable from any cause whatever, as
by insanity or death, the power of appointing some person who shall
secure the estate from ruin necessarily reverts to that tribunal
which the law appoints for the general purpose of providing for the
management of the property of dead persons. All cases of temporary
administration, as during the minority of an executor or during his
absence previous to the probate of the will, are considered as
exercises of the same power, though in a less degree, and as
proving that the ordinary may, after the executor has qualified, if
he shall absent himself so as, in the opinion of the ordinary, to
disqualify him from performing his duty, appoint an administrator
de bonis non with the will annexed, whose power shall
continue until the return of the executor.
The Court does not concur in this reasoning. In the cases stated
at bar and in all cases where temporary administration has been
granted, unless under a special act of the legislature, the
executor was, for the time, absolutely incapable of performing his
duty. There existed an actual legal disability to perform the
functions of his office. Until probate of the will and until
letters testamentary are obtained, the executor cannot obtain any
judgment, because it cannot appear that he is executor.
There is therefore an absolute necessity for appointing some
person who, until probate, shall take care of
Page 12 U. S. 22
the estate. But this is not the case with an executor who, after
taking out letters testamentary, absents himself from the state. He
is still capable of performing, and he is still bound to perform,
all the duties of an executor. There exists no legal disability in
the executor, and consequently there is no necessity for
transferring to another those powers which the testator has
conferred on a person selected by himself.
This power does not appear ever to have been exercised by the
ordinary in England anterior to the statute of 38 George III, and
in South Carolina the ordinary possesses no power which was not
possessed by the ordinary in England previous to that statute. The
practice of the particular ordinary who acted in this case would
not be sufficient to constitute the law had it even never received
judicial reprobation; but the case of
Ford v. Travis puts
an end to any doubt on this point.
The second point is one of more doubt and greater intricacy.
That the ordinary erred in granting letters of administration to
Lamotte is thought very apparent, but the effect of these letters
is less obvious. By the plaintiff it is contended that they
constituted Lamotte an administrator
de facto, rendered
his acts valid, so far as third persons are interested, and
exempted them from question where they can be examined only
incidentally. By the defendant it is contended that they were
granted by a person having no jurisdiction in the case, and are
therefore an absolute nullity. That Lamotte was not
de
facto the administrator of Salvadore and that his acts as
administrator stand on no better or higher ground than the acts of
any other person who should assume that character.
The well known distinction between an erroneous act or judgment
by a tribunal having cognizance of the subject matter and the act
or judgment of a tribunal having no cognizance of the subject is
not denied, but it is contended that the ordinary had jurisdiction
in this case. The ordinary in South Carolina is the court in which
wills are proved -- in which letters testamentary and letters of
administration are granted. He judges whether the applicant be
entitled to administration or not, and rejects or admits the claim
according
Page 12 U. S. 23
to his opinion of the law. Whether his judgment be correct or
not, still it is his judgment, and when exercised upon an
application for administration, it is exercised on a subject
cognizable in his court.
That he grants letters of administration in cases not expressly
authorized by statute and in which a will exists in which an
executor is named proves that he has jurisdiction in such cases,
and if he grants administration in one of them improperly, the
judgment is erroneous and voidable, but not void.
This argument has been very strongly urged, and there is great
force in it. The difficulty of distinguishing those cases of
administration in which a court having general testamentary
jurisdiction may be said to have acted on a subject not within its
cognizance is perceived and felt. But the difficulty of marking the
precise line of distinction does not prove that no such line
exists.
To give the ordinary jurisdiction, a case in which by law
letters of administration may issue must be brought before him. In
the common case of intestacy, it is clear that letters of
administration must be granted to some person by the ordinary, and
though they should be granted to one not entitled by law, still the
act is binding until annulled by the competent authority, because
he had power to grant letters of administration in the case. But
suppose administration to be granted on the estate of a person not
really dead. The act, all will admit, is totally void. Yet the
ordinary must always inquire and decide whether the person whose
estate is to be committed to the care of others be dead or in life.
It is a branch of every cause in which letters of administration
issue. Yet the decision of the ordinary that the person on whose
estate he acts is dead, if the fact be otherwise, does not invest
the person he may appoint with the character or powers of an
administrator. The case, in truth, was not one within his
jurisdiction. It was not one in which he had a right to deliberate.
It was not committed to him by the law. And although one of the
points occurs in all cases proper for his tribunal, yet that point
cannot bring the subject within his jurisdiction.
Page 12 U. S. 24
The case of letters of administration granted on the estate of a
person in full life is not the only one which may serve for
illustration; suppose administration to be granted on the estate of
a deceased person whose executor is present in the constant
performance of his executorial duties. Is such an appointment void,
or is it only voidable?
In the opinion of the Court, it would be an absolute
nullity.
The appointment of an executor vests the whole personal estate
in the person so appointed. He holds as trustee for the purposes of
the will, but he holds the legal title in all the chattels of the
testator. He is, for the purpose of administering them, as much the
legal proprietor of those chattels as was the testator himself
while alive. This is incompatible with any power in the ordinary to
transfer these chattels to any other person by the grant of
administration on them. His grant can pass nothing; it conveys no
right, and is a void act.
If the ordinary possesses no power to grant administration where
an executor is present performing his duty, what difference can his
absence make, provided that absence does not disqualify him from
executing his trust? If all his powers as an executor remain, if he
is still capable of appearing in courts of justice as the
representative of the deceased, if he is still the legal owner of
the chattels of the deceased and still capable of disposing of
them, it would seem that he is potentially present, though
personally absent. It is not easy to perceive any principle on
which the ordinary can assert his power to take the estate out of
the executor and vest it in an administrator. If he cannot do this,
then the attempt to do it must be a void act. If the administrator
durante absentia be only the agent of the executor, it
still occurs that the executor can himself appoint, and is the
proper person to appoint, his own agent. There is no necessity for
the intrusion of the ordinary.
Let the case be supposed of a suit by the executor while
actually resident abroad. Would he be incapable of sustaining the
action? Would his absence be a good
Page 12 U. S. 25
plea in bar? If it would not, how can the grant of letters of
administration to another take the property in the thing sued for
out of the executor and place it in that other?
Letters testamentary, when once granted, are not revocable by
the ordinary. He cannot annul them or transfer the legal interest
of the executor to any other person. His rights and his duties are
beyond the reach of the ordinary. How, then, can this be effected
by the grant of letters of administration?
The cases in which administration has been granted
notwithstanding the existence of a will appear to be cases in which
it is not apparent that there is any person possessing right in the
chattels of the testator or cases in which that person is legally
disqualified from acting.
Where administration is granted pending a dispute respecting a
will, it is not certain that there is an executor or that there is
a will.
If it be granted during the minority of an executor, it is
because the executor is legally disqualified from acting, and
indeed has not taken upon himself, and could not take upon himself
the trust reposed in him. He may, when of age, reject all the
rights and powers conferred by the will, and consequently the
interest is not yet a vested interest. The rights and powers of the
ordinary remain until those of the executor commence.
So in the case of an absent executor who has not yet made
probate of the will and qualified. Those letters testamentary which
are indispensable to his character as executor and which, during
their existence, leave the ordinary without any further power over
the subject are not yet granted. The executor has as yet no
evidence that he is executor. He is not yet able to act as one. He
may never be able to act, for he may never take out letters
testamentary. He may renounce the executorship. The ordinary, then,
is not yet deprived of that power which he possesses to appoint a
person to represent a dead man who has no representative. His
Page 12 U. S. 26
jurisdiction over the subject remains until he parts with it by
issuing letters testamentary.
The difference between granting administration in cases where
there is a qualified executor, capable in law of acting, and where
he has not qualified, is such as, in reason, to justify the opinion
that though, in the latter case, the ordinary may have
jurisdiction, and his act, though erroneous, may be valid till
repealed, yet, in the former case he can have no jurisdiction, and
his act is in itself an absolute nullity.
If under any circumstances the ordinary could grant
administration during the absence of an executor who has made
probate of the will and is legally competent to act, then he would
have jurisdiction of the subject, and would judge of those
circumstances; but if in no possible state of things he could grant
such administration, it would be difficult to conceive how he can
have jurisdiction.
If we refer to authority, we can find no case and no
dictum which admits the jurisdiction of the ordinary where
there is an existing executor capable of acting. In many cases it
is stated that an administration granted where there is such an
executor is void. Toller, in his "Law of Executors," page 120,
says
"If there be an executor, and administration be granted before
probate and refusal, it shall be void on the wills being afterwards
proved, although the will were suppressed or its existence were
unknown or it were dubious who was executor or he was concealed, or
abroad at the time of granting the administration."
It is also void if granted because the executor has become a
bankrupt, or if granted, "
durante minoritate where the
infant had attained his age of seventeen," until the statute of 38
G. III. So "if granted by a bishop where the intestate had
bona
notabilia, or by an archbishop of effects in another
province."
The case of
Ford v. Travis, decided in South Carolina,
is express to this point and renders a further reference to English
books unnecessary.
The counsel for the plaintiff admits this to be the law
Page 12 U. S. 27
where an absolute administration is granted, but denies the law
to be applicable to the grant of a temporary administration.
However correct this distinction may be in many cases, its
application to that at bar is not admitted.
No temporary administration can be granted where there is an
executor in being capable of acting, and where the case will not
justify the grant of a temporary administration, it would seem to
be as completely out of the jurisdiction of the ordinary as the
grant of an absolute administration where that is not within his
power.
The case, put by Toller, of administration
durante
minoritate where the executor is of the age of 17 seems full
in point. This is a temporary administration, and the minority of
the executor is a fact for the consideration of the ordinary. Yet
if in such a case he grants administration, the act is void because
in fact it is not a case in which he can grant it.
The reasoning of the court in the case of
Ford v.
Travis appears applicable to this case. It said the executor,
having proved the will, was in the nature of a trustee; he could
neither abandon his trust nor be deprived of his interest in the
estate of the deceased by any act of the ordinary. The ordinary, by
proving the will and qualifying the executor, executed his power,
and no law exists in this state authorizing him to resume it during
the lifetime of the qualified executor notwithstanding he may be
absent from the state. Letters of administration granted under such
circumstances are void
ab initio.
If the ordinary cannot resume his power so as to grant an
absolute administration, he cannot resume it for a limited time. He
cannot by any act of his divest the interest of the executor for an
instant. The power may revert to him by operation of law, but
cannot be assumed by any act of his own.
The grant of a temporary administration, as during the minority
of an executor, is
ad usum et commodum
Page 12 U. S. 28
executoris. But in this case, the administration is,
for the time, absolute, and makes the administrator the entire
representative of the deceased. It would not be unworthy of remark,
if the case depended on it, that though the application of Lamotte
was for administration during the absence of the executor, yet the
grant itself is without limitation.
But in its very nature the appointment of an administrator
during the absence of an executor under no disability is
essentially nothing more than the appointment of an agent for that
executor. This the ordinary has not the power to do. The executor
alone can appoint his agents.
If the ordinary had no jurisdiction in the case, then the grant
of administration was void
ab initio, and all the acts of
the grantee are void. Toller 128; 3 Term. 125.
It is contended by the plaintiff that could this administration
even be considered as null, where that forms the direct question
before the court, as it did in
Ford v. Travis, yet that
point cannot be examined where it is collateral and incidental.
The answer which has been given at bar to this argument is
entirely satisfactory. The question has never been examined in a
court of law sitting as an appellate court. The question has never
been whether the letters of administration shall be revoked or not,
but whether they were originally void, so as not to warrant the
particular act in support of which they were alleged.
But in this case the letters of administration come as directly
before the court as in the case of
Ford v. Travis. The
conveyance from the sheriff to Freneau forms a part of the
plaintiffs title, and the validity of that conveyance may depend on
the question whether Lamotte was or was not the administrator of
Salvadore. The question therefore must necessarily be decided, and
a majority of the Court is of opinion that administration was
granted by a court having no jurisdiction in the particular case,
and is therefore absolutely void.
Page 12 U. S. 29
3d. It is contended on the part of the plaintiff that the
judgment on which the execution issued was properly revived by a
court of competent jurisdiction, whose judgment is therefore
conclusive until reversed.
The first objection made to this judgment of revivor is that it
was made without legal process. The thirty-day rule is substituted
for the
scire facias only in cases where lapse of time
prevents the plaintiff from suing out execution.
However this Court might construe the law on an appeal from a
judgment of revivor in such case, that question has been decided by
a court of competent jurisdiction and cannot be reviewed here.
The second objection is that, the letters of administration
being a mere nullity, no party representing the estate of Salvadore
was before the court, and consequently the judgment could not bind
that estate.
This question is one of considerable difficulty. Had the
judgment been revived against the executor himself without the
service of process, it would perhaps, while in force, have
protected all proceedings under it. But this judgment is revived
against Lamotte, who was not the representative of Salvadore. In
the opinion of a majority of the Court, an execution on this
judgment could not legally be levied on the property of Salvadore,
and if so, the title was not vested in the sheriff by the service
of the execution, and could not be conveyed by him to the
purchaser. Upon this point, the case cited from 1 Wilson 302 is a
strong one against the opinion of the court; but in that case, the
execution, though irregular, was issued on a real judgment, and
justified the sheriff in taking the effects of the deceased. On its
face, it was unexceptionable. It issued at an improper time, but in
all other respects was correct. In this case, the execution issued
on a judgment which was itself a nullity, and it authorized the
sheriff to take the effects real and personal of Joseph Salvadore
in the bands of James Lamotte to be administered. Now the property
of Salvadore was not in the hands of Lamotte, but was in the hands
of his executor.
Page 12 U. S. 30
The case in Wilson, too, is so briefly -- I might say obscurely
-- reported as to leave the principle on which the court decided
entirely uncertain. It does not appear that the object of the
motion extended further than the restoration of the money. This was
not an attempt to set aside the sale, and nothing appears in the
case from which is to be conclusively inferred what the opinion of
the court would have been on that question.
In the opinion of a majority of the Court, there is no error in
the judgment of the circuit court, and it is
Affirmed with costs.
