#### Edward A. Holyoke *versus*Thomas Haskins *et ux.*

A statute authorizing an heir to come in and prosecute a real action commenced by bis ancestor, is not retrospective when applied to a case where the action was commenced before, and the ancestor died after, the passing of the statute.

Letters of administration which are originally void for want of jurisdiction in the judge of probate by whom they were granted, will not become valid by the lapse of twenty years or more, and evidence of acts *in*pais, showing such want of jurisdiction, is admissible in any collateral suit brought after the lapse of twenty years.

Where a demandant in a *writ of right*makes out his title to a part only of the lam. demanded, he shall have judgment for that part.

To enable an heir to prosecute a real action commenced by his ancestor, it is only necessary that the death and the descent be put upon the record; whether it is done by suggestion, or by a new count, is immaterial.

Thus, where the heir filed a written motion, stating the death of the demandant, and that he was the heir, and the tenant filed a denial of the descent, and the right of die demandant and the fact of the descent were proved to the jury, judgment was rendered for the heir.

If the demandant dies after a verdict in his favor and before judgment, the heir may borne in and pray for judgment; and if his right to come in is denied, *it seems*that a special issue will be ordered, to try such right.

This was a writ of right, commenced in 1825, for tne recovery of one undivided *sixth*part of certain land. The mise was joined on the mere right. A verdict was found for the tenants at November term 1826, and at March term 1827 a new trial was granted.

At November term 1828 a second verdict was found for the tenants, and the demandant moved for a new trial. At March term 1829 the death of the demandant was suggested on the record, and Judith Turner and Susannah Ward, “ being the children and sole heirs ” of the demandant, and Joshua Ward, as husband of Susannah, moved the Court that the suit might not be abated by the death of the demandant, but that they, Judith and Susannah as his sole heirs, and Joshua, as husband of Susannah, might come in and prosecute the suit in their own behalf, to final judgment, according to *St.*1826, c. 74.

This motion being granted and the verdict set aside, the counsel for the tenants filed a writing as follows : — “ And now upon this motion being read, the counsel for the tenants do not admit that the said Turner and Ward and wife are heirs of *264said Holyoke, nor that they are entitled to be heard on this m0tI0D f°r a new trial or for setting aside the verdict ; but the ordered the verdict to be set aside and a new trial granted, the tenants objecting that no party for the demandant was in Court.”

The cause was again tried, before *Parker*C. J., at November term 1829, when the following verdict was returned : — “ The jury find as to one undivided *eighth*part of said tenements, with the appurtenances, that the said demandant had in his lifetime, and that said Judith Turner and Joshua Ward and Susannah his wife, in her right, since the decease of said demandant, have more right to have the same to them and their heirs as the said demandant in his writ aforesaid bath demanded the same, than the said Thomas and Elizabeth to hold the same as they now hold the same ; and as to the residue of said demanded premises, with the appurtenances, that the said Thomas and Elizabeth have more right to hold the same as they now hold them, than the said demandant in his lifetime had, or the said Judith and Joshua and Susannah his wife, in her right, since his decease, have to demand the same, as the said demandant in his said writ hath demanded the same.”

The tenants filed exceptions ; alleging, 1. that they contended that the motion of Judith Turner and Joshua and Susannah Ward was not allowable by the principles of the common law, — that the statute of 1826, c. 74, was passed after this writ was commenced, and did not apply to this case, — that the statute did not apply to the case of a writ of right, and especially after a verdict for the tenants ; nevertheless the motion was allowed; — 2. That it was proved at the trial, that Silence Eliot and Sarah Eliot (under whom the demandant claimed) were born in Boston, in the county of Suffolk, and always resided in this Commonwealth ; that Sarah died in 1787 and Silence in 1790 ; that the probate jurisdiction of the Commonwealth had cognizance of granting letters of administration upon their estates ; that in 1782 the judge of probate for the county of Suffolk issued letters of guardianship over their persons and estates to John Haskins of Boston, staling that they were *non compotes mentis,*so found by the inquisition of the selectmen of Boston, and styling them of Boston ; that *265upon then death the judge of probate for the county of Suffolk, in 1790, issued his letters of administration upon their estates to J. Haskins, styling them late of Boston, which letters have never been revoked or annulled ; that J. Haskins, as administrator, in March 1791, in pursuance of a previous order of the Common Pleas, made a sale and gave a deed of the real estate of the intestates, under which sale and deed the present tenants hold by several mesne assignments, and the tenants, and all through whom they claim, have ever since had actual possession of the demanded premises ; that the original demandant in this suit was one of the next of kin to the intestates, and, at the time of granting the letters of guardianship, was of full age, and a resident in Salem in this Commonwealth, and continued to reside there until after the commencement of this suit; that at this stage of the cause the demandant offered evidence to prove that the letters of administration were void *ab*initio, for want of jurisdiction in the judge of probate who granted them, inasmuch as the intestates, at the time of their decease, had their domicil in the county of Middlesex ; that the tenants objected to the admission of any such evidence, unless the demandant, should first show that some other judge of probate within the Commonwealth had, within twenty years from the respective deaths of the intestates, rightfully entertained and exercised jurisdiction over their estates by granting proper letters of administration thereon : because no other original administration can now be granted, twenty years having elapsed after the death of the intestates, and before the date of the writ, and because, to admit the evidence would be to try by the country, in a collateral suit, a fact, which more than twenty years before had been tried and determined by the competent tribunal, and had not been denied or contradicted in that or any other tribunal having probate jurisdiction within the Commonwealth, within twenty years from the death of the intestates or at any time since : and that the tenants thereupon prayed the Court to reject the evidence as inadmissible and not pertinent to the issue, but the objection was overruled.

The tenants moved also in arrest of judgment, because this was a writ of right in which the demandant claimed an undivid*ed^sixth*part of the premises therein described, but it appeared *266by the verdict that he had no right to more than an *eighth*part and because it does not appear by the record, that Judith Turner and Joshua Ward and Susannah his wife, in her right, have such right in the described premises, as their right and inheritance, as will warrant a judgment in their behalf; and because by law, Judith Turner, Joshua Ward and Susannah Ward are not entitled upon this record to have judgment against the tenants.

*Gorham, Hubbard*and *Shaw,*

not denying that letters of administration granted in a wrong county are void, and that their validity may be questioned in a collateral action, nevertheless contended, that after the lapse of twenty years from the granting of such administration, the Court *would not receive evidence*of acts *in pais,*to show that the deceased was not domiciled in the county where the administration was granted. A writ of error is limited to twenty years, and the only reason why the jurisdiction of a probate court can be called in question in a collateral suit, is because error will not lie to that court Where the want of jurisdiction is apparent on the face of the record of the probate court, the letters of administration may be admitted to be void, after any lapse of time. But the question here is, whether, after twenty years have elapsed, and with the presumption that the judge of probate examined into the point of his own jurisdiction, and after the death of parties and witnesses, the Court will listen to imperfect evidence *aliunde,*to set aside a *prima facie*valid administration. 3 Stark. Ev. 1234 ; *Tyler*v. *Wilkinson,*4 Mason, 397.

The action abated by the death of the demandant. The first verdict for the tenants was returned before the enactment of the statute of 1826, c. 74, so that as applied to this case the statute is retrospective. It subjects a party to costs to which he would not otherwise have been liable.

As the demandant claims one sixth, judgment cannot be rendered on a verdict for one eighth.

But the most serious objection on the part of the tenants is, that the right of .Judith Turner and Susannah Ward is not put in issue. An affidavit that they are heirs of the original demandant is not sufficient. They must come in and change the record. The issue was, whether Holyoke had a right, and the *267verdict finds that Turner and Ward had a right. Their title should have been put in issue. The tenants had a right to deny that they were children of the demandant or to dispute their legitimacy, and to have these questions tried by a jury. Where an administrator comes in, he tries the same issue which the intestate would have tried ; but an heir comes in to prosecute in his own right, and not *en auter droit.*In short, a new writ must be made, and the mise will be joined on the question, whether the person coming in has more right than the tenant. In the present case, whatever the jury have found, out of the issue joined, is surplusage.

*F. Dexter*and Porter, for the demandant,

to the point, that the grant of administration might be set aside, referred to *Holyoke*v. *Haskins,*5 Pick. *20*; *Hathaway*v. *Clark,*ibid. 490.

To show that judgment might be rendered for part of the demanded premises, they cited *Dewey*v. *Brown, 2*Pick. 387 ; Somes v. Skinner, 3 Pick. 52 ; Jackson on Real Actions, 296.

An heir comes in precisely like an administrator. The jury have found that Holyoke had better right than the tenants, and that was the material point. That being found, a judgment will be rendered in favor of the heirs. We proved the marriage of Holyoke, and that Judith Turner and Susannah Ward are his children.

Parker C. J.

delivered the opinion of the Court. We think it very clear, that the statute authorizing representatives of deceased parties in a suit to come in and prosecute to judgment, is a valid act, and that it may well apply to cases pending at the time it passed.1 It is not retrospective in relation to this case, because the fact, on which it is to operate, did not take place until after the passing of the statute.

As to the admission of parol evidence, to show that the administration was void because the judge of probate had no jurisdiction, the question was virtually, if not directly, decided in this same case on the former hearing.2 The counsel then brought it distinctly before the Court, and the objection was overruled; and we see no reason to change our opinion, no authority having been produced to show that it was wrong. *268The inconvenience of vacating acts of a judicial nature, a long t'me a^ter have passed, is undoubtedly considerable ; but if they are void, there seems to be no lapse of time which will make them valid. Nor does it appear, that the inconvenience would be less, in many respects, if the act should be avoided within twenty years, or by evidence other than parol. If the legislature should enact that no administration should be vacated for want of jurisdiction, after the lapse of twenty years, perhaps it would be wise, but we see no way to establish such a principle by judicial power.

As to the objection, that a smaller proportion of the tenancy in common is recovered than is demanded in the declaration, we consider the point well settled in *Dewey*v. Brown, 2 Pick. 387, and recognized in *Somes*v. Skinner, 3 Pick. 52, [2nd ed. 62, note 2.] We see no ground of distinction between a writ of entry and a writ right in this particular.1

In regard to the objection, that the declaration does not aver a descent from the original demandant, to those who have been admitted of record to prosecute as his heirs, we think enough appears to give them the right secured by the statute. A written motion was filed in March term 1829, stating, in substance, every thing which would be required in an amended count, if one had been filed. The tenants had notice and filed tbeir denial of the descent, and the fact was proved to the jury. If there is any informality in trying the issue as originally made up, which was on the mere right of the original demandant, it results from the statute. All that is required is, that the fact of the death and of the descent shall appear on record, and this may be done by a new count, or by suggestion, as the court shall direct. The issue, as last tried, was substantially between the heirs admitted to prosecute and the tenants ; and the verdict has established the right of the heirs. If the original verdict had been for the demandant, in his lifetime, and if he had died before judgment, the heirs, under the statute, might come in and pray for judgment. The pleadings in that case could not be altered. If the right of the heirs was denied, a special issue would probably have been ordered to try it.

*Motion for new trial overruled.*

1

 See Revised Stat. *c.*93, § 4.

2

 See Revised Stat. c. 83, § 12.

1

**See Revised Stat. c, 101, § 11.