U.S. Supreme Court
Griffiths v. Frazier, 12 U.S. 8 Cranch 9 9 (1814)
Griffiths v. Frazier
12 U.S. (8 Cranch) 9
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 chanrobles.com-red
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 chanrobles.com-red
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. chanrobles.com-red