LETTERS TESTAMENTARY, AND OF ADMINISTRATION. It is proposed to consider, 1.
Their different kinds. 2. Their effect.
2.-1. Their different kinds. 1. Letters testamentary. This is an
instrument in writing, granted by the judge or officer having jurisdiction
of the probate of wills, under his hand and official seal, making known that
on the day of the date of the said letters, the last will of the testator,
(naming him,) was duly proved before him; that the testator left goods, &c.,
by reason, whereof, and the probate of the said will, he certifies "that
administration of all and singular, the goods, chattels, rights and credits
of the said deceased, any way concerning his last will and testament, was
committed to the executor, (naming him,) in the said testament named." 2.
Letters of administration may be described to be an instrument in writing,
granted by the judge or officer having jurisdiction and power of granting
such letters, thereby giving the administrator, (naming him,)," full power
to administer the goods, chattels, rights and credits, which were of the
said deceased, in the county or, district in which the said judge or officer
has jurisdiction; as also to ask, collect, levy, recover and receive the
credits whatsoever, of the said deceased, which at the time of his death
were owing, or did in any way belong to him, and to pay the debts in which
the said deceased stood obliged, so far forth as the said goods and
chattels, rights and credits will extend, according, to the rate and order
of law." 3. Letters of administration pendente lite, are letters granted
during the pendency of a suit in relation to a paper purporting to be the
last will and testament of the deceased. 4. Letters of administration de
bonis non, are granted, where the former executor or administrator did not
administer all the personal estate of the deceased, and where he is dead or
has been discharged or dismissed. Letters of administration, durante minori
aetate, are granted where the testator, by his will, appoints an infant
executor, who is incapable of acting on account of his infancy. Such letters
remain in force until the infant arrives at an age to take upon himself the
execution of the will. Com. Dig. Administration, F; Off. Ex. 215, 216. And
see 6 Rep. 67, b; 5 Rep. 29, a; 11 Vin. Abr. 103; Bac. Ab. h.t. 6. Letters
of administration durante absentia, are granted when the executor happens to
be absent at the time when the testator died, and it is necessary that some
person should act immediately in the management of the affairs of the
estate.
3.-2. Of their effect. 1. Generally. 2. Of their effect in the
different states, when granted out of the state in which legal proceedings
are instituted.
4.-1. Letters testamentary are conclusive as to personal property,
while they remain unrevoked; as to realty they are merely prima facie
evidence of right. 3 Binn. 498; Gilb. Ev. 66;. 6 Binn. 409; Bac. Abr.
Evidence, F. See 2 Binn. 511. Proof that the testator was insane, or that
the will was forged, is inadmissible. 16 Mass. 433; 1 Lev. 236. But if the
nature of his plea allow the defendant to enter into such proof, he may show
that the seal of the supposed probate has been forged, or that the letters
have been obtained by surprise; 1 Lev. 136; or been revoked; 15 Serg. &
Rawle, 42; or that the testator is alive. 15 Serg. & Rawle, 42; 3 T. R. 130.
5.-2. The effect of letters testamentary, and of administration
granted, in some one of the United States, is different in different states.
A brief view of the law on this subject will here be given, taking the
states in alphabetical order.
6. Alabama. Administrators may sue upon letters of administration
granted in another state, where the intestate had no known place of
residence in Alabama at the time of his death, and no representative has
been appointed in the state; but before rendition of the judgment, he must
produce to the court his letters of administration, authenticated according
to the laws of the United States, and the certificate of the clerk of some
county court in this state, that the letters have been recorded in his
office. Before he is entitled to the money on the judgment, he must also
give bond, payable to the judge of the court where the judgment is rendered,
for the faithful administration of the money received. Aiken's Dig. 183
Toulm. Dig. 342.
7. Arkansas. When the deceased had no residence in Arkansas, and he
devised lands by will, or where the intestate died possessed of lands,
letters testamentary or of administration shall be granted in the county
where the lands lie, or of one of them, if they lie in several counties; and
if the deceased had no such place of residence and no lands, such letters
may be granted in the county in which the testator or intestate died, or
where the greater part of his estate may be. Rev. Stat. c. s. 2.
8. Connecticut. Letters testamentary issued in another state, are not
available in this. 3 Day 303. Nor are letters of administration. 3 Day, 74;
and see 2 Root, 462.
9. Delaware. By the act of 1721, 1 State Laws, 82, it is declared in
substance, that when any person shall die, leaving bona notabilia, in
several counties in the state and in Pennsylvania or elsewhere; and, any
person not residing in the state, obtains letters of administration out of
the state, the deceased being indebted to any of the inhabitants of the
state, for a debt contracted within the same to the value of �20, then, and
in such case, such administrator, before he can obtain any judgment in any
court of record within the state against any inhabitant thereof, by virtue
of such letters of administration, is obliged to file them with some of the
registers in this state; and must enter into bonds with sufficient sureties,
who have visible estates here, with condition to pay and satisfy all such
debts as were owing by the intestate at the time of his death to any person
residing in this state, so far as the effects of the deceased in this state
will extend. By the act of June 16, 1769, 1 State Laws, 448, it is enacted
in substance that any will in writing made by a person residing out of the
state, whereby any lands within the state are devised, which shall be proved
in the chancery in England, Scotland, Ireland, or any colony, plantation, or
island in America, belonging to the king of Great Britain, or in the
hustings, or mayor's court, in London, or in some manor court, or before
such persons as have power or authority at the time of proving such wills,
in the places aforesaid, to take probates of wills, shall be good and
available in law for granting the lands devised, as well as of the goods and
chattels bequeathed by such will. The copies of such will, and of the bill,
answer, depositions and decree, where proved in any court of chancery, or
copies of such wills and the probate thereof, where proved in any other
court, or in any office as aforesaid, being transmitted to this state, and
produced under the public or common-seal of the court or office where the
probate is taken, or under the great seal of the kingdom, colony, plantation
or island, within which such will is proved (except copies of such wills and
probates as shall appear to be revoked), are declared to be matter of
record, and to be good evidence in an any court of law or equity in this
state, to prove the gift or devise made in such will; and such probates are
declared to be sufficient to enable executors to bring their actions within
any court within this state, as if the same probates or letters testamentary
were granted here, and produced under the seal of any of the registers
offices within this state. By the 3d section of the act, it is declared that
the copies of such wills and probates so produced, and given in evidence,
shall not be returned by the court to the persons producing them, but shall
be recorded in the office of the recorder of the county where the same are
given in evidence, at the expense of the party producing the same.
10. Florida. Copies of all wills, and letters testamentary and of
administration, heretofore recorded in any public office of record in the
state, when duly certified by the keeper of said records, shall be received
in evidence in all courts of record in this state and the probate of wills
granted in any of the United States or of the territories thereof, in any
foreign country or state, duly authenticated and certified according to the
laws of the state or territory, or of the foreign country or state, where
such probate may have been granted, shall likewise be received in evidence
in all courts of record in this state.
11. Georgia. To enable executors and administrators to sue in Georgia,
the former must take out letters testamentary in the county where the
property or debt is; and administrators, letters of administration. Prince's
Dig. 238; Act of 1805, 2 Laws of Geo. 268.
12. Illinois. Letters testamentary must be taken out in this state, and
when the will is to be proved, the original must be produced; administrators
of other states must take out letters in Illinois, before they can maintain
an action in the courts of the state. 3 Grif. Reg. 419.
13. Indiana. Executors and administrators appointed in another state may
maintain actions and suits and do all other acts coming within their powers,
as such, within this state, upon producing authenticated copies of such
letters and filing them with the clerk of the court in which such suits are
to be brought. Rev. Code, c. 24, Feb. 17, 1838, sec. 44.
14. Kentucky executors and administrators appointed in other states may
sue in Kentucky "upon filing with the clerk of the court where the suit is
brought, an authenticated copy of the certificate of probate, or orders
granting letters of administration of said estate, given in such non-
resident's state." 1 Dig. Stat. 536; 2 Litt. 194; 3 Litt. 182.
15. Louisiana. Executors or administrators of other states must take out
letters of curatorship in this state. Exemplifications of wills, and
testaments are evidence. 4 Griff. L. R. 683; 8 N. S. 586.
16. Maine. Letters of administration must be taken from some court of
probate in this state. Copies of wills which have been proved in a court of
probate in any of the United States, or in a court of probate of any other
state or kingdom, with a copy of the probate thereof, under the seal of the
court where such wills have been proved, may be filed and recorded in any
probate court in this state, which recording shall be of the same force as
the recording and proving the original will. Rev. Stat. T. 9, c. 107 Sec.
20; 3 Mass, 514; 9 Mass. 337; 11 Mass. 256; 1 Pick. 80; 3 Pick. 128.
17. Maryland. Letters testamentary or of administration granted out of
Maryland have no effect in this state, except only such letters issued in
the District of Columbia, and letters granted there authorize executors or
administrators to claim and sue in this state. Act of April 1813, chap. 165.
By the act of 1839, chap. 41, when non-resident owners of any public or
state of Maryland stocks, or stocks of the city of Baltimore, or any other
corporation in this state die, their executors or administrators constituted
under the authority of the state, district, territory or country, where the
deceased resided at his death, have the same power as to such stocks, as if
they were appointed by authority of the state of Maryland. But, before they
can transfer the stocks, they must, during three months, give notice to two
newspapers published in Baltimore, of the death of the testator or
intestate, and of the "amount and description of the stock designed to be
transferred." Administration must be granted in this state, in order to
recover a debt due here to a decedent, or any of his property, with the
exceptions above noticed.
18. Massachusetts. When any person shall die intestate in any other
state or country, leaving estate to be administered within this state,
administration thereof shall be granted by the judge of probate of any
county, in which there is any estate to be administered; and the
administration, which shall be first lawfully granted shall extend to all
the estate of the deceased within the state, and shall exclude the
jurisdiction of the probate court in every other county. Rev. Stat., ch. 64,
s. 3. See 3 Mass. 514; 5 Mass. 67; 11 Mass. 256 Id. 314; 1 Pick. 81.
19. Michigan. Letters testamentary or letters of administration granted
out of the state are not of any validity in it. In order to collect the
debts or to obtain the property a deceased person who was not a resident of
the state, it is requisite to take out letters testamentary or letters of
administration from a probate court of this stafe, within whose jurisdiction
the property lies, which letters operate over all the state, and then sue in
the name of the executor or administrator so appointed. Rev. Stat. 280. When
the deceased leaves a will executed according to the laws of this state, and
the same is admitted to proof and record where he dies, a certified
transcript of the will and probate thereof, may be proved and recorded in
any county in this state, where the deceased has property real or personal,
and letters testamentary may issue thereon. Rev. Stat. 272, 273.
2O. Mississippi. Executors or administrators in another state or
territory cannot as such, sue nor be sued in this state. In order to recover
a debt due to a deceased person or his property, there must be taken out in
the state, letters of administration or letters with the will annexed, as
the case may be. These may be taken out from the probate court of the
county where the proprty is situated, by a foreign as well as a local
creditor, or any person interested in the estate of the deceased, if
properly qualified in other respects. Walker's R. 211.
21. Missouri. Letters testamentary or of administration granted in
another state have no validity in this; to maintain a suit, the executors or
administrators must be appointed under the laws of this state. Rev. Code,
Sec. 2, pt 41.
22. New Hampshire. One who has obtained letters of administrition;
Adams' Rep. 193, or letters testamentary under the authority of another
state, cannot maintain an action in New Hampshire by virtue of such letters.
3 Griff. L. R. 41.
23. New Jersey. Executors having letter testamentary, and administrators
letters of administration granted in another state, cannot sue thereon in
New Jersey, but must obtain such letters in that state as the law
prescribes. 4 Griff. L R. 1240. By the act of March 6, 1828, Harr. Comp.
195, when a will has been admitted to probate in any state or territory of
the United States, or foreign nation, the surrogate of any county or this
state is authorized, on application of the executor or any person interested,
on filing a duly exemplified copy of the will, to appoint a time not less
than thirty days, and not more than six-months distant, of which notice is
to be given as he shall direct, and if at such time, no sufficient reason be
shown to the contrary, to a omit such will to probate, and grant letters
testamentary or of administration cum testamento annexo, which shall have
the same effect as though the original will had been produced and proved
under form. If the person to whom such letters testamentary or of
administration be granted, is not a resident of this state, he is required
to give security for the faithful administration of the estate. By the
statute passed February 28, 1838, Elmer's Dig. 602, no instrument of writing
can be admitted to probate under the preceding act unless it be signed and
published by the testator as his will. See Saxton's Ch. R. 332.
24. New York. An executor or administrator appointed in another state
has no authority to sue in New York. 6 John. Ch. Rep. 353; 7 John. Ch. Rep.
45; 1 Johns. Ch. Rep. 153. Whenever an intestate, not being an inhabitant of
this state, shall die out of the state, leaving assets in several counties,
or assets shall after his death come in several counties, the surrogate of
any county in which assets shall be, shall have power to grant letters of
administration on the estate of such intestate; but the surrogate, who shall
first grant letters of administration on such estate, shall be deemed
thereby to have acquired sole and exclusive jurisdiction over such estate,
and shall be vested with the powers incidental thereto. Rev. Stat. part 2,
c. 6. tit. 2, art. 2, s. 24; 1 R. L. 455 Sec. 3; Laws, of 1823, p. 62, s. 2,
1824, p. 332.
25. North Carolina. It was decided by the court of conference, then the
highest tribunal in North Carolina, that letters granted in Georgia were
insufficient. Conf. Rep. 68. But the supreme court have since held that
letters testamentary granted in South Carolina, were sufficient to enable an
executor to sue in North Carolina. 1 Car. Law Repos. 471. See 1 Heyw. 364.
26. By the revised statutes, ch. 46, s. 6, it is provided, that "where a
testator or testatrix shall appoint any person, residing out of this state,
executor or executrix of his or her last will and testament, it shall be the
duty of the court of pleas and quarter sessions, before which the said will
shall be offered for probate, to cause the executor or executrix named
therein, to enter into bond with good and sufficient security for his or her
faithful administration of the estate of the said testator or testatrix and
for the distribution thereof in the manner prescribed by law; the penalty of
said bond shall be double the supposed amount of the personal estate of the
said testator or testatrix; and until the said executor or executrix shall
enter into such bond, he or she shall have no power nor authority to
intermeddle with the estate of the said testator or testatrix; and the court
of the county in which the testator or testatrix had his or her last usual
place of residence, shall proceed to, grant letters of administration with
the will annexed, which shall continue in force until the said executor or
executrix shall enter into bond as aforesaid. Provided nevertheless, and it
is hereby declared, that the said executor or executrix shall enter into
bond as by this act directed within the space of one year after the death of
the said testator, or testatrix, and not afterwards."
27. Ohio. Executors and administrators appointed under the authority of
another state, may, by virtue of such appointment, sue in this. Ohio Stat.
vol. 38, p. 146; Act. of March 23, 1840, which, went into effect the first
day of November following; Swan's Coll. 184.
28. Pennsylvania. Letters testamentary or of administration, or
otherwise purporting to authorize any person to intermeddle with the estate
of a decedent, granted out of the commonwealth, do not in general confer on
any such person any of the powers, and authorities possessed by an executor
or administrator, under letters granted within the state. Act of March 15,
1832 s. 6. But by the act of April 14, 1835, s. 3, this rule is declared not
to apply to any public debt or loan of this commonwealth; but such public
debt or loan shall pass and be transferable, and the dividends thereon
accrued and to accrue, be receivable in like manner and in all respects and
under the same and no other regulations, powers and authorities as were used
and practiced before the passage of the above mentioned act. And the act of
June 16, 1836, s. 3, declares that the above act of March 15, 1832, s. 6,
shall not apply to shares of stock in any bank or other incorporated
company, within this commonwealth, but such shares of stock shall pass and
be transferable, and the dividends thereon accrued and to accrue, be
receivable in like manner in all respects, and under the same regulations,
powers and authorities as were used and practiced with the loans or public
debts of the United States and were used and practiced with the loans or
public debt of this commonwealth, before the passage of the, said act of
March 15, 1832, s. 6, unless the by-laws, rules and regulations of any such
bank or corporation, shall, otherwise provide and declare. Executors and
administrators who had been lawfully appointed in some other of the United
States, might, by virtue of their letters duly authenticated by the proper
officer, have sued in this state. 4 Dall. 492; S. C. 1 Binn. 63. But letters
of administration granted by the archbishop of York, in England, give no
authority to the administrator in Pennsylvania. 1 Dall. 456.
29. Rhode Island. It does not appear to be settled whether executors and
administrators appointed in another state, may, by virtue of such
appointment, sue in this. 3 Griff. L. R. 107, 8.
30. South Carolina. Executors and administrators of other states,
cannot, as such, sue in South Carolina; they must take out letters in the
state. 3 Griff. L. R. 848.
31. Tennessee. 1. Where any person or persons may obtain, administration
on the estate of any intestate, in any one of the United States, or
territory thereof, such person or persons shall be enabled to prosecute
suits in any court in this state, in the same manner as if administration
had been granted to such person or persons by any court in the state of
Tennessee. Provided, that such person or persons shall, produce a copy of
the letters of administration, authenticated in the manner which has been
prescribed by the congress of the United States, for authenticating the
records or judicial acts of any one state, in order to give them validity in
any other state and that such letters of administration had been granted in
pursuance of, and agreeable to the laws of the state or territory in which
such letters of administration were granted.
32.-2. When any executor or executors may prove the last will and
testament of any deceased person, and take on him or themselves the
execution of said will in any state in the United States, or in any
territory thereof, such person or persons shall be enabled to prosecute
suits in any court in this state, in the same manner as if letters
testamentary had been granted to him or them, by any court within the state
of Tennessee. Provided, That such executor or executors shall, produce a
certified copy of the letters testamentary under the hand and seal of the
clerk of the court where the same were obtained, and a certificate by the
chief justice, presiding judge, or chairman of such court, that the clerk's
certificate is in due form, and that such letters testamentary had been
granted in pursuance of, and agreeable to, the laws of the state or
territory in which such letters testamentary were granted. Act of 1839,
Carr. & Nich. Comp. 78.
33. Vermont. If the deceased person shall, at the time of his death,
reside in any other state or country, leaving estate to be administered in
this state, administration thereof shall be granted by the probate court of
the district in which there shall be estate to administer; and the
administration first legally granted, shall extend to all the estate of the
deceased in this state, and shall exclude the jurisdiction of the probate
court of every other district. Rev. Stat. tit. 12, c. 47, s. 2.
34. Virginia. Authenticated copies of wills, proved according to the
laws of any of the United States, or of any foreign country, relative to any
estate in Virginia, may be offered for probate in the general court, or if
the estate lie altogether in any other county or corporation, in the
circuit, county or corporation court of such county or corporation. 3 Griff.
L. R. 345. It is understood to be the settled law of Virginia, though there
is no statutory provision on the subject, that no probate of a will or grant
of administration in another state of the Union, or in a foreign country,
and no qualification of an executor or administrator, elsewhere than in
Virginia, give any such executor or administrator any right to demand the
effects or debts of the decedent, which may happen to be within the
jurisdiction of the state. There must be a regular probate or grant of
administration and qualification of the executor or administrator in
Virginia, according to her laws. And the doctrine prevails in the federal
courts held in Virginia, as well as in the state courts. 3 Grif. Reg. 348.
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