doing so is not to be held entirely void, because in derogation of the right of an executor, who has perhaps occasioned the act by his own neglect.

It is said that there are many things which an executor may do before probate. 1 Bac. Abr., Executors, &c., E. 14; 3 N. H. R. 517, Strong v. Perkins. But where an administration has been granted, an individual, by virtue of being named executor in a paper purporting to be a will, cannot control the acts of such administrator except by a probate of the will. In no other way can it appear that the administration is not well granted; for the will may be entirely ineffectual by reason of a want of sanity in the testator, or because it was procured by fraud, or has been revoked, &c.

And it may well deserve consideration, whether under our Statute of July 2, 1822 (which provides that no person shall intermeddle with the estate of any person deceased, or act as the executor or administrator thereof, or be considered as having that trust, until he shall have given bond to the judge of probate), an individual named executor can do any act as such until after the probate of the will. The bonds are to be given to the judge upon the probate of the instrument.

The defendant in this case, under his first appointment as administrator might have commenced a suit upon a demand due to the estate, and have prosecuted it to judgment if the time had permitted, and no defence could have been made to it. The production of a will without probate would have been of no avail. 16 Mass. R. 442, Dublin v. Chadbourne; 1 Pick. 547, Laughton v. Atkins; 1 Pick. 114, Shumway v. Holbrook; 4 D. & E. 260, The King v. Netherseal.

So a suit might have been commenced against the defendant as administrator, on the lapse of a year; and to such suit the existence of a will without probate, or a plea that he was not rightful administrator, would have been no bar.

Payment, then, made to him, bona fide, must operate as a discharge of the debtor; and payment by him of a debt which the deceased owed, would be a valid act, for which he might retain, if the estate was solvent.

How far notice of a will might have afterwards affected his liability to a third person who was rightful executor, it is not necessary now to consider. 5 B. & Ald. 744, Woolley v. Clark.

Had this suit been commenced against him as administrator after the lapse of a year without the production of the will, he must have plead to the merits. Perhaps had the will in such case been proved before trial, and a third person been executor, he might have plead the matter in bar of the further maintenance of the suit.

But we see no sound principle upon which he could have done this, had he himself, being the executor, taken letters testamentary during the pendency of the suit. There would in such case be no sufficient reason why the suit, which had been well commenced, should be defeated, in order that another should be instituted against him for the

same cause, describing him as executor instead of administrator. 5 N. H. R. 342, Giles v. Churchill. He might have paid as administrator, and been protected. He might continue the defence, if he thought proper, under his character as executor.

So we think a suit commenced by him as administrator before probate, could not have been defeated by a plea that since the last continuance he had proved the will, and been accredited as executor instead of administrator. It would be a mere change of his title of office, so far as the prosecution of such suit was concerned. It would be otherwise in case a third person had been appointed executor.

We have not, therefore, laid out of consideration the circumstance that the same individual who took the administration is the rightful executor, because his acts might in our opinion be continued; and no doubt all he had done under the administration, not in conflict with the provisions of the will, may be carried into the account of his administration, and allowed in the probate court, as if he had acted as executor in the first instance.

Upon the facts in this case, then, we hold that the grant of the administration on the 17th of March, 1830, was the original grant of adininistration within the terms of the Statute. Whether we must have arrived at a different conclusion had that grant been to a third person, and the suit commenced against the defendant before the expiration of a year from the probate of the will, we do not determine. The fact that the acts of such administrator, not in derogation of the provisions of the will, must be held valid as far as third persons were concerned, would certainly tend to give such an administration the character of an original administration within the meaning of the Act. The circumstance, however, that the executor might not have had knowledge of the condition of the estate, or have been able to collect the assets so as to make payment, must be weighed in such case, and upon this we give no opinion.

Porter, Bell, and Pillsbury, for the plaintiff.

C. H. Atherton, Bartlett, and Betton, for the defendant.

alleging that there was The court decreed that allowed as the last will

NOTE. In Waters v. Stickney, 12 Allen, 1 (1866), the Probate Court in 1851 approved a will. In 1865, a petition was presented to the court also a codicil, proof of which had been inadvertently omitted. the will already proved and the codicil should be approved and of the deceased. The decree was affirmed on appeal. But cf. Besancon v. Brownson, 39 Mich. 388 (1878).

Ir was adjudged in the Common Pleas between Middleton and Rimot, that an executor before probate might release an action, although before probate he could not have an action, for the right of the action is in him; but if A. releases and afterwards takes administration, it should not bar him, for the right of the action was not in him at the time of the release. Vide 18 H. 6, 43 b. Griesbrook's Case, Plow. Com. 277, 278; 21 E. 4, 24 a. Two executors prove the will, the third refuses, yet he may release. Lit. 177. If a man be bound to pay a sum at a day to come, a release of all actions before the day bars it, yet before the day he cannot have an action of debt; and so the opinion of SIR THOMAS GAWDY in the case before was now adjudged.1

1 For St. Paul says, a testament is confirmed by death,' so that by his definition, and by our law also, it is a testament when the testator is dead, and the executors named are executors presently and before the probate of the testament, for the probate is but a confirmation and allowance of that which the testator has done. For the spiritual court men have divers terms, as insinuation, which is a surmise that there is such a testament, and approbation, which implies that the surmise is tried to be true, and allowed, and in witness thereof the ordinary puts his seal. But before this is done it is a testament, and the executors named are executors, for the death preceding makes it a testament, and by the death the property of the goods which was in the testator, is cast upon and vested in the executors. And they are not called executors in respect only that they actually execute, but in respect that they may execute. And they may execute before probate, and may be sued, although they shall not sue for any duty due to the testator until they have proved the testament, and they may alien or give away the goods, or otherwise dispose of them before probate.' Per DYER, C. J., in Graysbrook v. Fox, Plowd. 275, 280 (1565). Cf. Wankford v. Wankford, 1 Salk. 299, 301. An executor may demise leaseholds before probate. Roe v. Summerset, 2 W. Bl. 692 (1770).

In Doe d. Hornby v. Glenn, 1 A. & E. 49 (1834), it was held, that an administrator was not bound by an agreement that he had made as to the estate before taking out letters. LORD DENMAN, C. J., said: "It would be very strong to hold that the lessor of the plaintiff was bound, after he became rightful administrator, by an act of this kind done by him while he was an executor de son tort."