The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1859-03-02

II NN"itN .HNN"FfN.N w WY .'tA 'f'.a.A '..'A
liberation.
Another and very material question .
presented g.. whether 20 wa. necessary .
.hat letters tos,ameutasy should be gram |
.Cd Co che executor bon CHS State upon Jd. /
hitting the viii tp record here. 10 Ga i'm.
sisted tu behalf 90 thg defendants Boz rr-
.or, chat as mo- such letters were granted
here, The executor was never Invested
with the authority t1 exercise Che power
io convey Che lands conferred upon hm
hy will aud hence that this dccd IS void.
This question d intimately connected with /
Che ono last considered
The grant Of letters documentary %,
authority to che execution o. aUt Doe rct-
Crcuce tuthc personally and thH ordinary
affairs of administration. Generally. 10
has NO reference t1 real estate, and c1n
give no poWpr over 30 to the execution
Dor aud #lhat appears be- CHS RECORD,
there M D personality boz this ~utcurd
mo- necossity TOE q grant of letters hDrc.-
The only NECESSITY Cor taking amy steps
here i'm relation Co the Will appears to Dee
to mako 10 evidence Ia our court. The
will granted power not appert1iuu- Oh
the subject matter at administration UNI
der che authority of our Probate Courts.
o. trust committed by The test1t1r tn the
persons who should become bis executors.
In such a case the executor derive his
authority from thc will and not from let
ters tcstamcntary and such lyttcrs could
have conferred no power over the land
except what WIS given by the WILL 10 b.
true, his character anil capacity as executor
must bc established by proof of che viii.
But when the will was admitted 90 pro-
bate hero. and Ii was shown that he had
taken upon himself the office oil executor.
che power 10 -oil che land which was in
dependent of ltis appropriate functions Us
executor. became vested Under tlc r.r-
rumstanCos oft the case. The only urOC-.i-
ty Tor tho grant of letters was t1 fN the
person who was to execute the puwer
granted by the will end chat having
been done by the proper court of the tgs-
tator's domicil 20 was unnecessary to OBJ
tain letters boz this State: for they could
have boon useful only l1f the purpose of
fixing the porsuu To- execute the power
lu principle. the ease IS not distinguish
able from chat of % deyiss OF power to
individuals. not executors. to -.U lands
living In q different State from Chat Of the
tcstatnr'- domieil i'm which the win was
admitted To- probate ioraltgr tho chJwc-
tcr nf tho executor hl. once boon c.J1h-
lished the person To- vhol tle power
is granted j. fixed. and ID is only nee
ccssary tu executing tho power iu luoth-
err State on Boo showing chat tlr previous
exercise OF 10 ]. cHcctull then tp admit
% probate iu Che State. the viii giving
the power. and tD show chat the party
exercising It Is clothed With Jlc character
desiHattd iu &c. Tho principles stated
boz the eases of Lewis and vito rs. MrFUf-
und MpCumick vs. SuIbuul. and Car
michael Vs. EIwiud1rf sustuus thi Wow.
our statute docs not contemplate che
appointment OF executors hyrcm aIl oa-
ac.. whore un authenticated copy of %
viii admitted To probate Zoo another State
may bc ordered jo Do recorded bon thi.
State. Hutch. Code go. E 2j.I 10 does
not prescribe that letters shall Do granted
iu any ease OF The admission of such viii.
to probate here aud che manifest pW.
poses which 10 was intended .o answer
only render such lettor- necessary whom
required lor tho exercise of the HFp1p.i.
Rte offices of uu executor suir. tud being
sued. and Toe che vuri1U. arfa r0,r,sd
With Che administration uf Csc pe #u1lfy.
But where the win conferred q power Or
interest which Gid not come within the
jurisdiction OF The Probate Court hose.
and Yet rendered % necessary thht the
win should be admitted To- probate here.
Nothing further could hove isau utUud-
81 than chat the viii should h' admitted
in record. and thereby established .s "a
win affecting the rights uf rali.es fp pro.
pcrty situate here. and lspu..d ~ iy or
under 70 so as 10 render 10 evidence OF the
rights derived from .t
Hence we are of opinion thlt e wa4
not necessary chat letters documentary
should have boon granted iu tiis State. iu
order to reDdcr thc decd az the executor
valid. And it would Follow from theprera
ding views. thatthe decd under which ths
det-udapt claimed title was mfdr uudcr
viii duly admitted 10 probate. aud thatth
executor wbs empowered tueynrute 20. an,
consequently that 10 b. valid tb couve,
title to the land.
But g = again objected tl tho poue
o. convey that land uas Hs.u 'g fh.
VIII tn the two executors end he.us
mpftor resting On the iiarr. .iUu ct IuJI
ofthch. chat It required che joint dcol o
both OF the executors Oh mHsc Is valid
conveyance and therefore That che Gee.
Beniamin loavgus o. solo executor 8 iu
sufficient
tt b. above seen that The power ta set
was not strictly oxccutori8l m Co. ChamE
Ter. but a trust Independent OF Che pro-
per duties ot che executor. To mos,
irum o. win executed Nv ta-tat0t dumicl
Cd end Who died iu Alabama. and which
was admitted toprohate there Theulture
obligation aud Interpretation of the iustu
mcut. and the rights and powers arisin
undcr it must Dee determined VS. che l8J
~ Chat state. STORY Conf Laws -.
900. li9, b. 40 m. And it has boon q.
Cidod hi the supreme Court of thHJ Stat,
IN suit Involving This viii, and h,twce
Leavcu- the executor, and Che plaintiff
iu this action that the. power granted D.
THE win might bc exercised by the eyeor
tor who qualified. and that DC did nd
require tho cooperation of both of Ga
individual named Hs executor boz the vii
Lcavcus WI. Butlor. Is Porter. $50. 3ll
This must bc taken as decisive of "a
point however different f. mry be lror
The rule which this Court ha. held upo
Che amc question oud ina case EoyCue
by our laws
Tho next question arising j. the udmi
sibility of the record Of the sul iu Chu
Hf.tHa .NNNiN.INN wv NHNI" "N|NNlH| JUDY. INI|
Of tho test8tor. against bis executor, uu
The plaintiffs iu thisacti1u and che dep
sitlous of che wituesscz offered Iu ryijgu.
by relation DO BE- The purpose for Viii,
This evidence was offered appears
have been tn show chat brse clJi
against the estate Of the ancestor of %
plaintiff had been discharged by mcai
of the conveyance Of the land .u cuutr
versy and other land. and tina, the 4cttl
mcut of This claim was beneficial to q
estate and the plaintiffs the distributes
it, The objection % Ca odmis-iblitv
that ID could not affect the rights of Ml
Butler. who was then q frrr c1rrrf and
minor.
The evidence offered. shows that u
settlement was made by the solicitor
Butler aud wife and Psi the special 90
sent of Butler. that tho claim against II
estate was thereby discharged aud IA
Che arrangement was beneficial Co tho
entitled Co the estate.
e isa general rulo chat q party "a +,
topped hy 20 course of conduct by whit
he has induced Others to act. on ha. d
quired an advantage to himself II Greer
Evid z -. 2li.l Anil COS. rule g. app
cable to f-mcl car-rf F1ulI En- Boo
ch. 3tA lStory'- Eq. $751; Whct
or The compromise OF Zee suit la Cha
cory was INSIDE by tie positive sanction
Mrs Batter or not. it nppelr chat 10 W
made hy hes solicitor with thecuueurrDu
ofhorhushand thc suItaFaiu. her wos q
mlssod and the claim uulinst her diacha
rodtn consequence ct 90. lu the absence
on evidence tending Co show chat she Vi
preiudiced iu the Transaction, these ~,
would 30 car 10 show that sho CONSENT
o. che agreement Eut in addition
this, che lact chat the cstIte in which q
waa Interested was benefited ly IL. viii
must be- taken ns q bcneGtt1 her intrr,
in it. conclude her from denying Boz ,
hdity, and lrom deprvinv the other par
of right which ho has acpuIretathrrrl
without restoring chat party othc po
lion ho occupied before the arraurourr
But A. The Chief Justice 6 of op.nf
that this evidence wua not connecticut
reason of tho disability ~ Mrs HptL
no dccision d made "a to g. admisih.E
The other two transcripts of record
evidence appear to have been intrndue
for the purpose Of showing admissions
Che plaintiff that the will had boon dt
established. These proceedings took DO
with parties having no Conueyiou with
rights and interests involved iu this "a
and the alleged admissions therein "
incompetent b. prove che execution %
viii They were therefore properly
cludod