
    Joseph Wales, Administrator, versus Lemuel Willard, Executor.
    Tne grant of an original administration more than twenty years after the death ot the intestate is, ipso facto, void.
    The statute of March 9,1784, prohibiting such grant, applies to the case of in-testates dying before, as well as after, the date of the statute.
    This was an action of debt on a bond, dated July 6, 177b, brought by Joseph, Wales, administrator of the estate of Abel Willard, deceased, against Lemuel Willard, executor of the last will of Lemuel Willard, the deceased obligor.
    To this action the defendant pleads,
    1st. In bar, that the said Wales is not, nor ever was, administrator of the goods and estate of the said Abel Willard, &c.
    To this plea there is a replication, setting forth that administrador was committed to the plaintiff by the judge of probate for the county of Worcester on the 17th day of November, A. D. 1801.
    The defendant rejoins that Abel Willard, the plaintiff’s intestate, died on the 8th day of November, A. D. 1781; that administration of his estate was not granted to the plaintiff, or any other person, until more than twenty years had elapsed from the time of his death, viz., on the 17th of November aforesaid: * so [*121] that the letters of administration aforesaid, and the granting thereof, are wholly void, and of no effect in law.
    To this rejoinder the plaintiff demurs, and the defendant joins in demurrer.
    2dly. The defendant pleads in bar, setting forth that Abel Willard died on the 8th day of November, A. D. 1781, and that administration of his estate was never granted until more than twenty years had expired, viz., on the 17th day of November, 1801; so that the said letters of administration are wholly void, &c.
    To this plea the plaintiff also demurs, and the defendant joins in demurrer.
    There is also a plea of solvit ad diem.
    
    Statute, March 9, 1784, entitled “ An Act directing the descent of intestate estates,” &c. Sect. 10: “ Nor shall administration be originally granted upon the estate of any deceased person, after the expiration of twenty years from the death, of such person.”
    
      Stedman, for the plaintiff,
    contended, 1st, that the grant of administration was not void, but voidable only by an appeal from the decree of the judge granting the same. “At common law, the ordinary might repeal an administration at pleasure,”  which shows the grant to be valid until repealed.
    Where administration is granted by a peculiar, where there are bona notabilia, it is not void, but voidable. 
    
    Where there were bona notabilia, and so the administration not gran table by the bishop of the diocese, there the administration may be repealed by the delegates, notwithstanding the statute.  So perhaps here, upon an appeal to the Supreme Court of Probate, the administration might have been repealed, but it is good until that takes place.
    A prerogative probate, when there are no bona notabilia, is not void, but voidable.  Here the Probate Court being the * only court of original jurisdiction for granting [*122] administration, (except only where, by the judges being i party, it is transferred to the Supreme Court of Probate) all the rules of law respecting the Prerogative Court apply to the Courts of Probate. But, secondly, Steelman suggested that this statute, on which the defendant relies, was passed three years after the death of Abel Willard, and, in order to bear on this case, must have retrospective operation ; and to show that this is not the legal construction, he quoted 4 Bac. Abr. 636, tit. Statute, C. “ It is in the general true that no statute is to have a retrospect beyond the time of its commencement; for the rule and law of Parliament is, that Nova constitutio futuris formam debet imponere, non pratteritis.”
    
    
      Dana, for the defendant,
    contended that the judge of probate had no jurisdiction in the case, and that the grant was therefore absolutely void. Suppose the judge of probate had undertaken to grant administration of the estate of a person in full life; will it be said that the only method to avoid this is by an appeal from the decree ? Such a decree would be an absolute nullity. So, in the present case, the judge derives his authority from the statute, and that statute expressly excludes his jurisdiction where twenty years have elapsed.
    “ A thing is void, which was done against law, at the very time of the doing it, and no person is bound by such an act.” 
    
    The grant of an office to a person incapable of executing it is void in law. 
    
    A judgment given of a thing out of the jurisdiction of a court of local or limited jurisdiction, is absolutely void, and advantage may he taken thereof in pleading without reversal by writ of error. 
    
    Where the court in which judgment was obtained had cognizance of the cause, the judgment is only erroneous; but if the court had no jurisdiction, it is void. 
    
    [ * 123 ] * If administration be granted by a bishop, or other inferior judge, when it does not belong to him, it is null and void; and in an action by an administrator so appointed, it is a good bar, that no administration was granted. 
    
    As to the second point made by the plaintiff, Dana observed that all statutes of limitation operated on existing cases, and he particularly cited the act for limiting the time within which writs of error shall be brought for the reversing of any judgments,  the words of which are, “ that no judgment in any action or suit heretofore, or which hereafter may be rendered, shall, from and after the passing of this act, be reversed or avoided for any error or defect therein, unless the writ of error brought for reversing the same be sued out within twenty years next after the rendition of such judgment; ” and he contended that the words of the statute which were relied on in the defendant’s pleas were equally comprehensive.
    
      Bigelow, in reply,
    said he should not contend that the legislature had not authority to give this law a retrospective operation, if they had seen fit; but he contended that this was not necessarily implied from the words. If they had so intended, they would have used language such as this ; “ any person who has deceased, or shall hereafter decease; ” which would have put the matter beyond all doubt. As this and all other statutes of limitation are in derogation of the common law, they ought to receive a strict construction.
    As to the other point, he insisted that the passage read from Buller was in favor of the present plaintiff. The judge of probate had, ex necessitate roi, jurisdiction of the question whether administration could regularly be granted, and having decided that question, his decision is conclusive to all parties, unless appealed from.
    As to the case supposed of administration granted on the estate of a living person, Bigelow said, the analogy is not perfect. In such case no judge of probate could have, jurisdiction. But in the case before the Court there was a question which the * judge of probate was competent to determine, viz., [*124] whether, by law, administration might legally be granted on the estate of the plaintiff’s intestate. His decision we think binding, unless reversed on an appeal, which is the regular mode provided by law to examine it.
    
      
       3 Salk. 21.
    
    
      
      
        Carth. 148.
    
    
      
       1 Lev. 305, Ravenscroft vs. Ravenscroft.
      
    
    
      
       1 Strange, 73, Rex vs. Loggen & Froome.
      
    
    
      
       5 Bac. Abr. 337, tit. Void and voidable.
      
    
    
      
      
        Lilly’s Rep. 39.
    
    
      
       2 Lev. 23, Frumpton vs. Pettis.
      
    
    
      
      
        Bull N. P. 66.
    
    
      
       1 Com. Dig. tit. Administrator, B. 5.
      
    
    
      
       Passed February 15, 1806.
    
   The opinion of the Court was delivered by

Parsons, C. J.

The county Courts of Probate were never established by any statute until the act of March 12, 1784. Before the revolution, the judges of probate were considered as surrogates of the governor and council, who derived from the royal charter the authority to prove wills and to grant administrations. A provincial act was passed for erecting Courts of Probate in the several counties, but it was negatived by the king. A number of other acts were afterwards passed, which recognize the power of the Courts of Probate, and regulate appeals from them to the governor and council, which were approved.

By the constitution, among other laws, the acts regulating and defining the proceedings of the Courts of Probate were confirmed, and the appeal given to our governor and council, until the legislature should otherwise provide. By the statute of March 12, 1784, Probate Courts were established, with the powers and jurisdiction given by the laws of the commonwealth. The appellate jurisdiction is tested in the Supreme Judicial Court; to which is also given original jurisdiction in all cases in which the judge of probate is interested. The only authority of the Court of Probate to grant administration in cases of intestacy is derived from the statute of March 9, 1784, in which it is expressly enacted that no administration shall be originally granted on the estate of any deceased person after the expiration of twenty years from his death.

According to the legal construction of these two last statutes must the issues in law in this cause be decided. The defendant contends that the administration is void. The plaintiff, not insisting that the administration is legal, contends that it is only voidable by way of appeal.

When the question before a judge of probate is only as to the manner of exercising his jurisdiction on a subject of [ * 125 ] which * some Court of Probate has jurisdiction, there if he mistakes, the means of correcting such mistake is by appeal. But when the question is whether the Court of Probate has jurisdiction of the subject or not, he must decide it, but at his own peril. If he errs by assuming a jurisdiction which does not belong to the Probate Court, his acts are void.

It appears frrm the pleadings that the administration was originally granted after the intestate had been dead twenty years. This administration, it was not competent for any judge of probate to grant; but it is a case in which it is expressly provided by the statute from which he derives his authority, that no administration shall be granted. It is not, therefore, the erroneous' exercise of his jurisdiction, but it is an assumption of power against law, and the grant is, ipso facto, a nullity.

The objection that the statute was passed after the death of the plaintiff’s intestate cannot prevail. The statute must be considered as applying to all cases arising, or in which application for original administration should be made to the judge of probate, after the passing of the statute, whether the death occurred before dr after that time.

Judgment must be entered for the defendant upon both pleas. 
      
       The good policy of this law is not very apparent. If there he any thing to be administered, there seems to be no sufficient reason at any time for declaring that letters of administration shall not be granted.
     