Letters testamentary to the estate of Edward Coursault, a
merchant, who had died at Baltimore, were granted to Gabriel Paul,
one of the executors named in the will. The other executor, Aglae
Coursault, the wife of Edward Coursault, did not qualify as
executrix, nor did she renounce the execution of the will.
Afterwards, on the application of Aglae Coursault stating she was
executrix of Edward Coursault, accompanied with a power of attorney
given to her by Gabriel Paul, the qualified executor, who had
removed to Missouri, the commissioners under the treaty of
indemnity with France awarded to the estate of Edward Coursault a
sum of money for the seizure and confiscation of the
Good
Friends and cargo by the French government. During the
pendency of the claim before the commissioners, Aglae Coursault
died, and letters of administration with the will annexed were, on
the oath of Thomas Dunlap that the widow and executrix of Edward
Coursault was dead, granted by the Orphans' Court of the County of
Washington, in the District of Columbia, to the plaintiff in error,
Elias Kane, a resident in Washington. The sum awarded by the
commissioners was paid to Elias Kane, by the government of the
United States. Gabriel Paul, the executor of Edward Coursault,
brought an action against Elias Kane, for the money paid to him.
Held, that he was entitled to recover the same. The
letters testamentary granted in Maryland entitled the executor of
Edward Coursault to recover without his having the letters of
administration granted by the Orphans' Court of Washington repealed
or revoked.
At common law, the appointment of an executor vests the whole
personal estate in the person appointed executor, which he holds as
trustee for the purposes of the will, and he holds the legal title
in all the chattels of the testator, and for the purpose of
administering them, is as much the proprietor of them as was the
testator. The ordinary cannot transfer those chattels to any other
person by granting administration of them.
The Act of Congress of 24 June, 1812, gives to an executor or
administrator, appointed in any state of the United States or in
the territories, a right to recover from any individual within the
District of Columbia effects or money belonging to the testator or
the intestate, in whatever way the same may have been received, if
the law does not permit him to retain it, on account of some
relations borne to the testator or to his executor, which defeats
the rights of the executor or administrator, and letters
testamentary or letters of administration obtained in either of the
states or territories of the Union give a right to the person
having them to receive and give discharges for such assets, without
suit, which may be in the hands of any person within the District
of Columbia. The right to receive from the government of the United
States, either in the District of Columbia or in the state where
letters have been granted, any sum of money which the government
may owe to the testator or intestate at the time of his death or
which may become due thereafter or which may accrue to the
government as trustee for a testator or intestate in any way or at
any time is given by that act. A
bona fide payment of a
debt to the administrator, which was due to the estate, is a legal
discharge to the debtor, whether the administration be void or
voidable.
The certificate of the Register of Wills, annexed to the
proceedings of the Orphans' Court of Maryland giving letters
testamentary to the executor, shows that the will had been proved
and that the letters testamentary had been granted. This is proof
that the person holding the letters testamentary is executor as far
as the law requires it to be proved in an action of assumpsit upon
a cause of action which arose in the time of the testator or of the
executor. On the plea of the general issue in such an action, and
even in a case where that plea raises the question of right or
title in the executor, the certificate of probate and qualification
meets the requisition. A judicial examination into their validity
can only be gone into upon a plea in abatement after oyer has been
craved and granted, and then, upon issue joined, the plaintiff's
title as executor or administrator may be disputed by showing any
of those causes which make the grant void
ab initio, or
that the administration had been revoked.
The declaration in an action by an executor for the recovery of
money received by the defendant after the decease of the testator
may be in the name of the plaintiff as executor
Page 39 U. S. 34
or in his own name without stating that he is executor. The
distinction is that when an executor sues on a cause of action
which occurred in the lifetime of his testator, he must declare in
the detinet -- that is, in his representative capacity only; but
when the cause of action accrues after the death of the testator,
if the money when recovered will be assets, the executor may
declare in his representative character, or in his own name.
Edward Coursault, then a merchant of the City of Philadelphia,
in December, 1809, was the owner of the brig
Good Friends
and part of her cargo. Both the brig and cargo were seized at
Morlaix, in France, by order of the French government, and were
confiscated.
In 1825, Edward Coursault died in Baltimore, where he resided at
the time of his decease, and by his will, dated August, 1814, he
appointed Aglae Coursault, his wife, his executrix and Gabriel Paul
his executor.
On 27 August, 1814, letters testamentary of the will were
granted in Baltimore to Gabriel Paul. Mrs. Coursault did not
qualify, nor did she renounce, as executrix. Sometime afterwards,
Gabriel Paul removed to the State of Missouri.
The claim of the estate of Edward Coursault for indemnity for
the seizure and confiscation of the brig
Good Friends and
cargo, having been provided for by the convention between the
United States and France, concluded at Paris, in July, 1831, Aglae
Coursault, styling herself the widow and executrix of the last will
and testament of Edward Coursault, in January, 1833, presented a
memorial to the board of commissioners appointed to carry the
convention into effect, claiming indemnity for the seizure and
confiscation of the brig and cargo.
The memorial stated the death of Edward Coursault, the
appointment of the memorialist and Gabriel Paul executors by his
last will, that letters testamentary were granted to the
memorialist and Gabriel Paul, and the memorial also states that
whatever amount of said claim may be awarded under said convention
will belong solely and exclusively to the memorialist, as executor
of the last will and testament of the said Edward Coursault,
deceased.
Together with the documents presented to the commissioners,
showing the property of the Good Friends and part of her cargo to
have belonged, at the time of the seizure and confiscation, to
Edward Coursault, there was a power of attorney from Gabriel Paul,
as "administrator of the estate of Edward Coursault," to Mrs. Aglae
Coursault authorizing her to present in his name to the
commissioners of the United States the claim of the estate of
Edward Coursault, promising to present himself before them as soon
as required.
The commissioners awarded the sum of seven thousand eight
hundred and sixty-four dollars in favor of the claimant.
On 27 March, 1837, an affidavit was made and presented to the
Orphans' Court of the County of Washington, in the District
Page 39 U. S. 35
of Columbia, stating that Edward Coursault had died in the City
of Baltimore in 1814, and that Aglae Coursault, his widow and
executrix, had died about two years before the making of the
affidavit.
On 29 March, 1837, the judge of the orphans' court directed
letters of administration, with the will annexed, to be issued upon
the estate of Edward Coursault to Elias Kane, Esquire, and the sum
awarded on the claim of Aglae Coursault by the commissioners was
paid at the Treasury of the United States to Mr. Kane as the
administrator.
Gabriel Paul, in November, 1837, as executor of Edward
Coursault, having taken out letters of administration in the
District of Columbia, instituted a suit in the Circuit Court of the
County of Washington against Elias Kane for the recovery of the sum
paid to him by the United States, and at November term, 1838, the
cause was tried and a verdict and judgment were rendered for the
plaintiff.
At the trial, the defendant in the circuit court gave in
evidence an exemplification of the letters of administration
granted by the Orphans' Court of the County of Washington, but the
court directed the jury that they were no bar to the action of the
plaintiff. The defendant excepted to this opinion of the court. And
the plaintiff having offered in evidence the award of the
commissioners, the power of attorney from the plaintiff to Aglae
Coursault (by copies from the State Department) and his letters
testamentary, with a copy of the will annexed, and having proved
that the plaintiff was then living, the court directed the jury
that the plaintiff, if the said evidence was believed, was entitled
to recover the amount received by the defendant under the award.
The defendant excepted to this direction of the court, and
prosecuted this writ of error.
Page 39 U. S. 38
MR. JUSTICE WAYNE delivered the opinion of the Court.
It appears in this case that Edward Coursault, being domiciled
in Baltimore, died there in the year 1814, and that by his will,
dated 13 August, 1814, he appointed Aglae Coursault executrix and
Gabriel Paul executor.
On 27 August, 1814, letters testamentary were granted in
Maryland to Gabriel Paul -- Paul is still alive. Edward Coursault
being the owner of the brig
Good Friends, and part of her
cargo, both were seized and confiscated at Morlaix in the year 1809
by the French government.
Paul, the qualified executor of Coursault, by a power of
attorney dated 18 October, 1832, he being then a resident of
Missouri, empowered Aglae Coursault to present a memorial in his
name to the board of commissioners, appointed under the act of
Congress to carry into effect the convention between the United
States and his Majesty the King of the French, concluded at Paris,
on 4 July, 1831, for the claim of the testator to indemnity on
account of the confiscation of the
Good Friends and her
cargo, stating in his power that he would present himself before
the board of commissioners as soon as he might be required. Under
this power, Aglae Coursault memorialized the commissioners, in
which memorial, after reciting the seizure and confiscation of the
Good Friends and her cargo, what the cargo was, the value
of the vessel and her freight, and that Edward Coursault had
incurred great expense in defending his rights, it is said, letters
testamentary were granted to herself and Gabriel Paul, and that
whatever sum may be awarded upon the claim it would belong
exclusively to herself.
The commissioners made an award in favor of the claim.
After this award was made, Kane, the appellant, applied to the
Orphans' Court of the County of Washington, in the District of
Columbia, for letters of administration upon the estate of Edward
Coursault, and upon an affidavit of Thomas Dunlap stating that the
widow and executrix, Aglae Coursault, was dead, an order was made
to issue letters of administration to the appellant upon the estate
of Edward Coursault, and letters of administration
de
bonis
Page 39 U. S. 39
non with the will annexed were given to him, he having
entered into bond with Thomas Dunlap and John K. Kane as securities
for the faithful performance of his duties.
Kane applied for and received from the proper department of the
government a part of the sum awarded by the commissioners upon the
claim of Edward Coursault, and this suit was brought by Gabriel
Paul, the executor, to recover from Kane the money he received in
his character of administrator
de bonis non cum testamento
annexo.
The declaration contains three counts, in each of which the
plaintiff claims as executor. The defendant pleaded
nonassumpsit, and issue being joined, a jury was called to
try the issue. On the trial, besides other evidence, the plaintiff
produced his letters testamentary, granted in 1814, in Maryland,
and the defendant offered in evidence an exemplification of the
letters of administration granted to him by the Orphans' Court of
Washington County, District of Columbia, in 1837.
The court charged the jury that the letters of administration
offered by the defendant were no bar to the plaintiff's action, but
that the plaintiff's letters testamentary and the other evidence,
if believed by the jury, entitled him to recover the amount the
defendant had received upon the award of the commissioners,
according to the certificate of that amount given by John H.
Houston, a clerk in the fifth auditor's office. The jury gave a
verdict in favor of the plaintiff, the defendant having first
excepted to the instructions of the court.
The point then made by this exception to the instruction of the
court is do the letters testamentary, obtained by the plaintiff in
Maryland prevail over the letters of administration
de bonis
non cum testamento annexo given to the defendant is the
District of Columbia so as to entitle the former to recover from
the latter the money received by him in such character without a
repeal or revocation of such letters?
The answer to that question will depend upon the legal character
of the letters granted to the defendant.
Are they void or voidable?
In Com.Dig.Adm. B. 1 it is said,
"If there be an executor and administration be granted before
probate and refusal, it shall be void on the will being afterwards
proved, although the will were suppressed or its existence were
unknown or it were dubious who was executor, or he were concealed
or abroad at the time of granting the administration."
So in Com.Dig. B. 2, B. 10,
"If there be two executors, one of whom proves the will and the
other refuses, and he who proves the will dies, and administration
is granted before the refusal of the survivor, subsequently to the
death of his co-executor, or if granted before the refusal of the
executor, although he afterwards refuse, such administration shall
be void. In all these cases, the administration is a mere nullity.
The executor's interest the ordinary is incapable of divesting.
Toller on Ex. 121. "
Page 39 U. S. 40
In the case of
Griffith v.
Frazer, 8 Cranch 9,
12 U. S. 24, the
Court says
"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 those 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."
Such is the common law.
Notwithstanding the extended jurisdiction given by the statutes
of Maryland to the orphans' court in testamentary cases, we cannot
see in them any alteration of the legal consequence resulting from
the grant by that court of letters of administration in case of a
will when there is an executor not disqualified by law or who has
not been excluded from acting in conformity to law. The grant of
administration is void, as at common law. The powers given to the
court are intended to protect the rights of executors, not to
enlarge its jurisdiction to transfer them to another person. The
action of the court, to be effective to grant administration upon a
will, an executor being alive and capable of acting, must be within
its powers. If not, the administration will be void. This
conclusion is sustained too by the stern manner in which the
orphans' court is confined within its jurisdiction by the statute
of 1798, ch. 101, sub-ch. 15.
"The said orphans' court shall not, under any pretext of
incidental power or constructive authority exercise any
jurisdiction whatever not expressly given by this act, or some
other law."
The letters being void, the person named in them cannot retain
from the rightful executor the testator's effects upon the plea
that he may do so until the letters have been revoked by the court
which granted them. The appearance of an executor with proof of the
will and letters testamentary, subsequently to the grant of letters
of administration in a case where it was supposed there was no
will, is of itself a revocation of the latter, and so is the
Maryland law. Dorsey's Maryland Testamentary Law, 4 sec. 77.
In this case, then, though the right of the plaintiff to sue in
the District of Columbia is given by the Act of Congress of 24
June, 1812, Davis' Dist.Laws 266, his right to recover rests upon
the legal conclusion that the defendant never was administrator to
administer the effects of the testator; the act of the orphans'
court naming him such being void
ab initio. His right
under that act is to
"maintain any suit or action, and to prosecute and recover any
claim in the District of Columbia in the same manner as if his
letters testamentary or administration had been granted by the
proper authority . . . in such district."
In the case before us, there was a will which had been proved in
Maryland; letters testamentary granted to an executor; that
executor was alive (and is still so) when the orphans' court gave
letters
Page 39 U. S. 41
to the defendant, upon the proof that the executrix named in the
will was dead, without any inquiry concerning the executor, but in
the face of the certificate of his letters testamentary.
It was repeatedly asked on the argument of this cause what
rights can letters testamentary or of administration granted in
either of the states of this Union give to an executor or
administrator in the District of Columbia except the right to sue
given by the Act of Congress of 1812. Davis' Dist. Laws 266.
We answer that the right to sue, in the manner it is given,
gives the right to such executor or administrator to recover from
any individual within the District of Columbia effects or money
belonging to the testator or intestate in whatever way they may
have been received, if the law does not permit him to retain them
on account of some relation borne to the testator or to his
executor which defeats the executor's right, and that letters
testamentary or of administration obtained in either of the states
or territories of this Union give a right to the person having them
to receive and give discharges for assets without suit, which may
be in the hands of any person within the District of Columbia, and
the right to receive from the government, either in the District or
in the state where letters have been granted, any sum of money
which the government may owe to a testator or intestate at the time
of his death, or which may become due thereafter, or which may
accrue to the government from a testator or intestate in any way or
at any time. And a
bona fide payment to the administrator
of a debt due to the estate shall be a legal discharge to the
debtor, whether the administration be void or voidable. Toller 130.
Allen v. Dundas, 3 Term 125.
It was however urged, that the court erred in its instruction to
the jury because the letters testamentary of the plaintiff appear
on the face of them to have been granted in violation of the law of
Maryland, Dor.Test. Law, 6 sec. 77, which declares that letters
testamentary shall not be granted to any one or to any number of
executors less than the whole unless there shall be such
proceedings against each of them failing as would authorize the
issuing of letters of administration in case of the failure of a
sole named executor. Whether such proceedings were had or not the
record does not show, but if it did, the objection would not
prevail. The certificate of the Register of wills annexed to the
proceeding of the orphans' court, giving letters to the defendant,
shows that the will had been proved and that the plaintiff had
received letters testamentary. That he is executor, then, is proved
as much as the law requires it to be, whether the declaration is in
assumpsit upon a cause of action arising in the time of the
testator or in that of the executor. The plea was the general
issue, and even in a case where that plea raises the question of
right or title in the executor, the certificate of probate and
qualification as executor meets the requisition. A judicial
examination into their validity can only be gone into upon a plea
in abatement after oyer has been craved and granted, and then, upon
issue joined, the plaintiff's title as executor or
administrator
Page 39 U. S. 42
may be disputed by showing any of those causes which make the
grant void
ab initio or that the administration has been
revoked. The title of an administrator is proved by the production
of the letters of administration. 2 Phil.Ev. 550, 551.
Childres v.
Emory, 8 Wheat. 671. Nor can such objection prevail
because the plaintiff omitted to make profert of his letters
testamentary in his declaration, for that is aided unless the
defendant demur specially for the defect. 4 Anne, ch. 11. 1
Saunders on Pleading 574.
It was also objected against the recovery in this case that the
money of the testator having been received by the defendant after
the death of the testator, the declaration should have been in the
plaintiff's own name, and not as executor. The law is now well
established that it may be in either form. The distinction is that
when an executor sues in respect of a cause of action which
occurred in the lifetime of the deceased, he must declare in the
detinet -- that is, in his representative capacity only. But where
the cause of action accrues after the death of the testator, if the
money recovered will be assets, the executor may declare in his
representative character or in his own name.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington, and was argued
by counsel, on consideration whereof it is now here ordered and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs and
damages at the rate of six percentum per annum.
