
    Baldwin vs. Buford.
    The order of a County Court granting an administration with the will annexed, before the renunciation of the executor named in the will, ia not void, but voidable, upon the application of the executor, if made within a proper time.
    This cause came up on appeal in the nature of a writ of error from the Circuit Court of Henry County. The defendant in error, the plaintiff below, brought his action of debt in the Circuit Court of Henry County, against the defendant as executor of the goods and chattels, rights and credits, which were of Jeremiah Hardin, dec’d. The declaration alleges, that Jeremiah Hardin in his lifetime, by his writing obligatory; bound himself and promised to pay the plaintiff on the 25th day of December, 1828, the sum of $275, that the same was not paid by said Hardin in his lifetime, and that after‘his death, the said Baldwin, his executor, promised to pay the same, but that neither said Hardin or said Baldwin, his executor, had paid the same. To this declaration the defendant pleaded specially, that he never was executor of the last will and testament of Jeremiah Hardin, dec’d. nor ever administered any of the goods and chattels which were of Jeremiah Hardin, dec’d. at the time of his death, as executor of the last will and testament of said Hardin, dec’d. To this plea the plaintiff replied, that the defendant, Lewis Baldwin, was, at the commencement of p • i the suit, executor of the last will and testament ox said Jeremiah Hardin, dec’d, and administered the goods and chattels, which were of the said Hardin at the time of his death, and prayed that the same may be inquired of by the country; to which the defendant entered a similiter. At the May term of the said court, the said cause was tried before a jury, and the issues were found in favor of the plaintiff, and that the defendant had detained the balance of the debt in the declaration mentioned, to the amount of $200, and assessed damages to $16 90, for the detention of said balance of debt. Upon which the court rendered judgment against the defendant, that plaintiff recover the debt and damages aforesaid. The defendant moved the court for a new trial, which motion the court overruled, and to the opinion of the court overruling said motion, the defendant excepted, and filed his bill of exceptions. By said bill of exceptions it appears, that on the trial of the cause before the jury, the plaintiff proved that the defendant had married the widow of said Jeremiah Hardin, dec’d, and received several negroes, horses, cattle and household furniture, and used them as his own, which belonged to.said Jeremiah Hardin in his lifetime; that said defendant had once made a verbal promise, not reduced to writing, to pay the plaintiff his debt. The defendant introduced a certified copy of the last will and testament of Jeremiah Hardin, dec’d, proved in Williamson County, and also a copy of the proceedings had thereon in the County Court of Williamson County; by which it appeared, that said Hardin, by his last will and testament, bequeathed his real and personal property to his widow, (wife of defendant, Baldwin,) to be disposed of as she thought proper among his children as they became of age, or married; and upon the death of the widow, to be equally divided between said children; and appointed John Click, sen. and John Click, jr. his executors. Said will, as appears from said record, was duly proved and ordered tobe recorded; upon which John Click, sen. one of the executors of said last will and testament, came into court and renounced the burthen of executing the same, and at the same time Elizabeth Hardin, the widow of said Jeremiah Hardin, (now the wife of defendant,) came into court and renounced her right to administer upon the estate of said Jeremiah Hardin, dec. and upon the application of Alfred Gee to administer upon said Hardin’s estate, the court appointed said Gee administrator with the will annexed, upon which he entered into bond and security according to law, and took upon himself the administration of said estate, and returned an inventory and account of sales, a certified copy of which was produced and read to the jury, from which it appeared, that said Gee took into his possession all the goods and chattels, choses in action and other rights and credits of said Hardin, and also his negroes, being seven in number. The defendant also proved, that all of the property which he had in possession of the said Hardin in his lifetime-, he received from said Gee, the administrator, both negroes and other property. Upon this proof, the court charged the jury, that the County Court of Williamson had no right or authority to appoint an administrator until both executors appointed by said Hardin, dec. had refused to qualify; and that if the defendant had received and used any of the property of Jeremiah Hardin, dec. he was liable as executor de son tort; upon which tire jury gave a verdict for the plaintiff as aforesaid, and the defendant moved for a new trial, because the court had misdirected the jury upon the law arising upon the facts presented; which was overruled and excepted to as above stated, and defendant appealed in error to. this court.
    
      Win. C. Dunlap, for plaintiff in error.
    
      Thos, J. Jennings, for defendant in error.
   Catron, Ch. J.

delivered the opinion of himself and GREEN, J.

To understand this cause, the title and interest of an executor by the laws of England, and 2d, his title and interest under the laws of Tennessee, must be stated.

1. By the laws of England, the executor derives his title and powers almost exclusively from the will. Before probate he may possess himself of the goods and chattels of the testator, sell and dispose of them in payment of debts, or otherwise, and even give them away; he may sue before letters testamentary are granted to him, and if he procure them before he declares at law, or comes to a hearing in equity, they will be construed to relate to the commencement of the action. Toller on Ex. b. 1. chi 2, s. 6. p. 42. For all trespasses on the goods or chattels, and all contracts in reference thereto, after the testator’s death, and before probate, the executor can sue for and recover without producing letters testamentary. Ib. So he may be sued by the creditors of the testator.— Toller on Ex. 49.

These are rights vested by the will, and continue to exist until the executor is cited before the court of ordinary, and fails or refuses to qualify, which is recorded. This record is in the nature of a sentence divesting the executor of his title and interest in the goods and chattels. A refusal by any act in pais, as a mere verbal declaration to that effect, is not sufficient; but to give it validity, it must be thus solemnly entered of record. Toller on Ex. b. 1, ch. 1, sec. 3, p. 42.

It follows, that by force of the will, the testator immediately on his death is represented by his executor, whose legal title is the same to the goods and chattels, without the assent of the government, through a court of probate. Another consequence ensues; the executor cannot be divested of his title but by a judicial proceeding, of which he has notice by regular citation. It is by sentence of renunciation the spiritual court acquires jurisdiction to vest title m the administrator.

Suppose administration be granted to another before the executor renounces or fails to qualify, and tins be recorded; of necessity the grant of administration will be void, because there cannot exist two titles to the property to be administered at the same time; and such is the well settled English law. Toller on Ex. 44, 93, 120.

2. By the laws of Tennessee, and of Virginia, (4 Munf. R. 104,) the executor acquires no title or power over the goods and chattels of the testator, by mere force of the will. “All executors of every discretion shall, before they presume to enter upon the administration of any estate whatsoever, enter into bond and security in the same way that administrators are required to do.” Act of 1813, ch. 119. And like administrators, they may be removed on application of the securities, if they mismanage the estate, or if for other reasons, the securities become unwilling longer to be responsible. Act of 1825, ch. '62. Until the will be proved in the proper court, the executor enters into bond -and security, and takes the oath well and truly to administer, the goods and chattels remain in custody of the law, subject; to the jurisdiction of the County Court.

Having had jurisdiction, the Williamson County Court could, and did, lawfully exercise it. The order appointing Gee administrator with the will annexed, may have been voidable, and the executor have had the right to cause it to be set aside, had he come in time, as the next of kin may; an administration may be granted to a stranger, and until revoked, the acts of the administrator are binding.

We are an emigrating people, and to leave the goods exposed until the executor could be regularly cited, would in many cases be attended with their destruction. The executor may have removed to another State, when the law furnishes no means of giving himnotice. If the executor be dissatisfied with the order of the County Court appointing an administrator with the will annexed, it is i . t n it i t i Jus duty to come forward and cause the order to be set aside;- and whilst he fails, the presumption is, that the proceeding of the court meets Ms approbation, and wMch is almost uniformly in accordance with the fact. To declare the administration granted to Gee void, and to hold the distributee responsible as executor in his own wrong, would be harsh and pernicious in its consequences.

The Circuit Court erred in charging the jury that the grant of .administration to Gee was void. The judgment will be reversed and the cause remanded for trial de novo.

Cause remanded.  