LETTERS TESTAMENTARY
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LETTERS TESTAMENTARYLETTERS 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 œ20, 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,
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