#### WILLIAM SLADE, ADM’R. &c. *vs.*JOSIAH AND ABRAHAM WASHBURN.

June 1843

Letters of general administration, granted during the pendency of a contest respecting the probate of a will, are null and void. '

And such letters being entirely void, as exceeding the powers of the court, cannot be supported as-a grant of administration *pendente lite.*

Appeal from the Superior Court of Law of Rutherford county, at Spring Term, 1843, his Honor Judge Manly presiding.

This case was before the Supreme Court, at June Term, 1842, when the points then presented were determined and a new trial granted. See 2 Ired. Rep. 414. On the return of this decision to the Superior Court of Rutherford, that court, on the application of the plaintiff, permitted him to amend his writ from detinue to trespass. In this new form the case came on for trial at the Spring Term, 1843, of Rutherford Superior Court. It appeared in evidence, that one Gabriel Washburn died about the year 1824, leaving a paper purporting to be his last will and testament, of which bis wife Priscilla, and the .two defendants, were nominated executors— that at January Sessions, 1826, of the County Court of Rutherford, it was offered by *them*and admitted *to*probale, as appears by the following entry on the docket of that term, viz:

“ The last will and testament of Gabriel Washburn was presented in open court for probate. Achilles Durham and Farmer Moore, two of the subscribing witnesses thereto, came into court and proved the same in the usual form, and Josiah Washburn and Abraham Washburn, two of .the ex*558ecutors named, qualified and took on themselves the burthen thereof.” “Copy ol letters issued.”

At July Sessions, 1826, one Gilbert Harrill and Martha-his wife, (she being one of the next of kin of the testator,) filed their petition and caused the same to be served on the defendants, praying that the said probate of the will be set aside. It was returned to October Sessions following, at which term the following entry appears on the docket:

“ Gilbert Harrill and wife, *ns.*Abraham and Josiah Wash-burn, executors of Gabriel Washburn. *Devisavit vel non. Caveat.”*

At July Sessions, 1827, the entry on the docket is in the following words, after the'stating the case as before :

“ Compromised. Terms filed.”

The following is a copy of the terms filed :

“ Gilbert Harrill ) *vs.*| Abraham Washburn and ) Petition to set aside a will. Josiah Washburn, executors of G. Washburn.

This suit is compromised on the following terms, viz: — ■ Priscilla Washburn is to remain in possession of the whole estate, real and personal, during her life, and at her death the land’is to be divided between Abraham and Josiah Washburn, and all the personal property to be equally divided between the balance of the heirs of Gabriel Washburn, dec’d. The costs of the suit to be paid out of the personal estate. GILBERT HARRILL,

JOSIAH WASHBURN.”

At March Sessions, 1828, the following entry appears on the docket:

“Priscilla Washburn appointed administrator of Gabriel Washburn.”

And it also appeared that the defendants became her sureties in the administration bond. The said Priscilla died in January, 1839, and at the next March Term of the County Court of Rutherford in the same year, the following entry appears on the record

*559“ A paper writing, purporting to be the last will and lament of Gabriel Washburn, dec’d. was presented for probate, which was objected to, and the validity of said will , , . , . J , was caveated, and an issue *devisamt vel non*made up thereupon. Alter some contestation, the court appointed William Slade administrator *de bonis non testatoris,*of the estate of Gabriel Washburn, deceased, who entered into bond with security. He prayed an order of sale — -granted. The property not to be moved out of the county.”

It appeared, that, shortly after the death of Priscilla, the widow, the defendants went to her late residence, and, before the January Term, 1839, of Rutherford County Court, removed the negroes Polly and Rachel, and the four children of the latter, claiming them under the will of the said Gabriel, deceased, and each took the negroes willed to him. It also appeared, that the defendant Abraham did not sign the compromise above set forth : And the plaintiff, to connect him with it, adduced evidence to shew, that he had declared afterwards, that the lands of his father were to be divided between him and Josiah, and the other property was to be divided among the other heirs. And it also appeared, that in the Spring of 1826, the defendants had caused an inventory of the property of the deceased to be made out, and at the following October Sessions, returned the same to court. — ■ There was no evidence to shew, further than has been here stated, what disposition had been made in the County Court of Rutherford, of the issue make up at the January Sessions 1839, to try the validity of the will then offered for probate, or whether the issue was or was not now pending in that court. It was admitted, that the will offered at January Sessions, 1839, was the will previously offered at the January Sessions, 1826, and that it was offered at both times by the. present defendants. The questions of law arising in the case were reserved, and the jury found a verdict for the plaintiff. The court, on argument, directed the verdict to be set aside, and judgment of non-suit to be entered. From this judgment the plaintiff appealed.

*560
      *Alexander*for the plaintiff.

*Caldwell*and *Hoke*for the defendants-;

Gaston, J.

After the issue had- been made up, on the petitition of Harris-and wife, at the October Term, 1826, of Rutherford County Court, we must understand that the court had revoked-the previous probate of the supposed will, and that the paper, which had been propund'ed as such, remained before it, to be established or rejected according to the determination of that issue. This-appears more clearly from the order made at the same term, which we find in the record accompanying the case, whereby William Slade, the present plaintiff, was appointed administrator *pendente lite.*The entry made at the July Term, 1827, 11 compromised, terms filed,” especially when taken in connection with the “terms” referred-'to,-whereby it is seen that the parties had:agreed upon a disposition of *cCU*the property of ihe'deeeased, we *feel*ourselves-justified in interpreting as a-withdrawal of the'alleged will by its propolinders, thereby authorizing the general grant of administration to-the widow at the subsequent-March Term. Thus far, vague and imperfect and in formal-ad are the several entries of record, we are enabled to give' them a reasonable construction with some degree of confidence, but when we come to the order or entry of March Term, 1839, under which the plaintiff undertakes' to make' out his title in, and constructive possession of,- the negroes carried away'by the defendants,-the hope of a satisfactory' construction vanishes. At this time the widow, to' whom a' general administration had-been granted, was dead. Thereupon', the same paper writing, containing the alleged will of the deceased, was again brought forward for probate, “which was objected to, and the validity of said will was caveated, and' an issue “ *devisavit vel non”*made up thereupon.” — • This is intelligible, and-though much wanting in.precision', as not shewing by whom the alleged will was thus a second time propounded, or who contested its validity, or between' whom1 the issue was made up, is decisive, we think, that the *561
      *allegation*repropounding the will was *admitted*by court, that this allegation was met by counter aliegationsj and that the truth of the matter in contest was to be de-termtned by an issue under the direction of the court. — . What follows of the order is very much litre gibberish.— “Thereupon, after some .contestation, the court appointed William Slade administrator *de bonis non testatoris*of the estate of Gabriel Washburn, deceased, who entered into bond with good security. He prayed an order of sale ; granted, the property not to be removed out of the county.” If an explanation could be given of this entry by any co-tempora-neous act, such as the letters thereon issued or the bond then taken, none such is given; it must therefore be expounded without any aid of this kind. We have little difficulty in rejecting altogether the word “testatoris.” Perhaps it was a misprision for the word “ administratis,” but, if not, it is wholly unmeaning. Certainly, as yet there had been no sentence establishing a will of the deceased, and it sufficiently appears that the administration, whatever its character, was an administration “of the estate of Gabriel Washburn, deceased.” The order therefore remains one, appointing the plaintiff administrator *de bonis non*of that estate, and this is made at the same moment, when the coyrt entertains a contest respecting the alleged will of the deceased, and has no-issue made up to try that contest. Such an order must, we think, be held null.

The power of the court to grant letters of administration exists only, when one has died without making any disposition of his goods. Such a grant is founded upon a sentence,express or implied, which is set forth in the letters, that the deceased has died intestate. A grant, therefore, of such an administration, founded upon a judicial declaration that the fact of testacy or intestacy is then *sab lite*in the court, is a legal absurdity. Upon the death of an original administrator, leaving some part of the goods, chattels and credits of the deceased unadministered and not fully disposed of, the authority of such administrator having expired, a supple-mentory grant of administration, still founded on that sen*562tence oí intestacy, issues to authorise and empower tbe grantee “to administer and faithfully dispose of the goods, chattels and credits left unadministered as aforesaid.” The g.ran|. 0f administration to the widow was upon its face good, because *then*there was no allegation or suggestion that the deceased had left a will. Until such allegation or suggestion was receivad by the court, it was *per se*a judicial declaration that he had died intestate. But when such an allegation was received’, which, perhaps, under the circumstances of the compromise and the wildrawal of the alleged will, when formerly propounded, might have been rejected, necessarily the sentence of intestacy was revoked, or at all events suspended. There was thus,- therefore, no' foundation on which to-rest? the supplementary grant.

We have had occasion to see, as has been stated in the case of *Sattewhite*v *Carson,*decided at this term, that so' strictly was the power of the ordinary in granting administrations limitad to cases of ascertained intestacy, that it was for a long time held' that where a will was in contestation the ordinary could not grant special letters of administration *pendente lite.*This strictness was afterwards relaxed, because of the necessity that there shotild' be a-' *temporary*keeper of the goods of the deceased, while the controversy lasted. Nothing can be more conclusive to shew that a grant of general administration made during such a contest was altogether null. But it has been asked, if the court had authority to grant an administration thus limited, *pen-dente lile*— why may we not uphold the grant made to the *extent*of *that authority ?*This cannot be. The general appointment of an administrator, and the special appointment of an administrator *pendente lite,*do not differ from each other merely in the limited duration of the latter.- — ■ The offices conferred are in many respects different, having different powers and properties. We cannot convert one into the other. Besides there is an essential distinction in the effect of grants, conveyances, or other acts operating upon or by virtue of ownership in the grantor, and such as operate because of a power delegated by law to the grantor. *563With respect to .the former, they *may*be allowed to be fectual to the extent of the grantor’s dominion, and be held imperative as to all beyond it, but the latter are valid or invalid accordingly as they fall within or transcend the power of the grantor. The other matters in tne case, tending to shew that the conduct of the defendant is in violation of a family arrangement to which they were parties,, will have their just influence before a tribunal which has jurisdiction to enforce such arrangements. But they cannot effect the construction of the grant, under which the plaintiff claims to have been the *legal*possessor of the negroes that were of the deceased.

It is exceedingly to be regretted, that, in the acts of courts, which exercise so important a jurisdiction in our country, we have to encounter at every term such absurd, irregular and defective entries, as almost to defy interpretation, and often to thwart what would seem to be the clear demands of justice and the best interests of the community. We greatly fear from our experience, that these evils are becomingmore frequent, and see not how they .can be lessened until the au-thorised registers of these .courts, who are intrusted with the momentous duty of recording their acts, shall be qualified by special training to express these acts in distinct, perspicuous and appropriate language.

The judgment of the Superior Court is affirmed.

Pee Curiam. Judgment affirmed.