
    [Chambersburg,
    October 31, 1826.]
    In the case of WILLIAM HUFF’S Estate,—Appeal of ROBERT PEEBLES.
    APPEAL.
    Where a will has been admitted to probate by the register, and the executor has acted under it, although the will be afterwards revoked, the accounts of such executors may be filed before the register, and presented to the Orphans’ Court, and they are bound to make a decree in respect to them.
    This case came tip on the appeal of Robert Peebles from the decree of the Orphans’ Court of Ctimberland county.
    The administration account of Robert Peebles, executor of William Huff, deceased, was examined and passed by the register of Cumberland county, on the 7th of February, 1825, and on the l'lth of May, 1825, it was presented to the Orphans’ Court for passage and confirmation, but the court refused to pass the same.
    The reasons of the. court were filed, according to the act of assembly, as follows:—■
    There was no legal probate of the will. Letters testamentary were erroneously procured by Robert Peebles, and in his own favour. They were revoked by the Orphans* Court. He now presents an account of his administration of the estate, which is complained of by the heirs, and urged as one of the causes of the propriety of revoking the letters testamentary. The heirs object to the passage of any account.
    
      The acts of Robert Peebles in his own favour, under the letters testamentary so procured, are void; and the court is unwilling.to recognise him as an executor. If he has any legal claims upon the estate, our refusal to confirm his account will not deprive him of his remedy: if he claims the equitable interference of the court, we can perceive no ground for such claim in any of the matters that have been presented to the court. “The probate, or, as it is sometimes called, the letters testamentary, may be revoked, either on á suit by citation, or on an appeal to reverse a sentence by which they are granted. And, in case of revocation, all the intermediate acts of the executor shall be void.” Toll. Law of Ex. 78. 3 Bac. M. 50. Tit. Ex. Jldrn. let. E. 13. Although several previous cases are overruled in Mien v. Priestman, 3 Burn, fy East, 125, on this subject, it rather confirms the doctrine, to the extent necessary to support the opinion of the court in this case.
    
      Mexander, for the appellant,
    insisted that the Orphans’ Court was bound to examine into the accounts, and decree upon'them as in other cases of executors’ accounts. The register had jurisdiction, and therefore his acts were not void, but voidable: and the acts of the executor, such as receipt of money from a debtor of the testator, are valid. He cited, 1 Roll’s. Ab. 909. Com. Rep. 152, overruled in Allen v. Dunbar, 3 Term Rep. 125. 4 Burr. 1986, 2 Com. Dig. 50, 600. Toll. 76, 77, 78. 8 Cranch, 9. 3 Bac. Ab. 50. 6 Co. 19. Cro. Eliz. 459. 2 Lord Ray. 680. 3 Bac. Ab. 21. 12 Mod. 471. 5 Co. 30. 1 Dessauss. 213. 3 Binn. 622. 6 Serg. & Rawle, 452. 1 Yeates, 91. 3 Yeates, 511. 2 Hen. & Munf. 467, 485. 1 Munf. 456.
    Penrose, contra,
    argued that an executor whose letters have been revoked, stands on the same ground as an executor de son tort, and hence he had no right to settle an account before the Orphans’ Court or the register. If this executor can settle, an account and show a balance in his favour, he may obtain a decree of sale of the real estate. Ail authority ceases on repeal of the letters. 3 Bac. Ab. 51, 52. Toll. Ex. 77. Act of the 7th of March, 1813, Purd. Dig. 610. Act of the 4th of April, 1797. Ib. 614.
   The' opinion of the court was delivered by

Tilghman, C. J.

The register of wills for the county of Cumberland, admitted to probate a writing exhibited as the testament and last will of William Huff,, deceased, and granted letters testamentary to Robert Peebles, the executor in the said writing named. These letters were afterwards revoked, because the probate was made on the bath of the said Robert Peebles and another person, who were the principal legatees. After the revocation, viz. on the 7th of February, 1825, Peebles exhibited an account of his administration to the register of wills, by whom it was examined and passed, and afterwards transmitted in the usual manner to the Orphans’ Court. That court, having considered the case, refused to pass any account of the administration of Robert Peebles, because there had been no legal probate of the will, and the letters testamentary had been revoked.

The register has power to take probate of wills of deceased persons, and there is no reason why the executor, to whom letters testamentary are issued, should not be accountable before him, though the letters be repealed. It is not true, as has been sometimes asserted, that all intermediate acts of the executor, between the probate and repeal are void. The payment of a just debt is not void. The estate is discharged by such payment, and the executor entitled to credit. But it is true, that the executor shall not be permitted to gain any preference or personal advantage. An executor to whom probate has been granted, differs from an executor de son tort. ' The former has acted under letters testamentary, from an officer who had jurisdiction in the case. The latter has never acted but under a usurped authority. Au executor de son tort, therefore, cannot be cited to account before the register. It was said by the counsel for the appellees, that before Peebles exhibited his account, he had ceased to be an executor. But it does not follow, that he is not accountable. Temporary administration, pendente lite, and durante minori setate of an executor, are often granted. Yet the person to whom this temporary power has been given, is accountable after it has expired. If the executor, in the case before the court, could have been cited to aecount before this register, he may account voluntarily. To say that he must wait for a citation, would be a most unreasonable doctrine; for then he would be compelled to be a delinquent, and as such subject to costs. It has been objected that Peebles, having obtained a probate improperly, ought not to derive any advantage from it. It is to be observed, that he is not charged with any fraudulent device or practices. The probate was illegal, because the witnesses were interested, and therefore incompetent. And, as to gaining an advantage, it does not appear that he will derive any advantage from the settlement of his account. Whether settled or not, he will be entitled to an allowance for debts of the testator fairly paid. And, if he sets up a debt due to himself, our law gives him no preference. That he should be subject to a citation, is no privilege to him, but a very great advantage to the creditors, and all persons interested in the estate of the intestate. On a citation, the proceedings are summary, and much more expeditious .than actions at law. Another advantage is, that the accountant is put to his oath in order to charge himself, but cannot discharge himself without proof independent of his oath. An opinion was once entertained, that payments made to one who had obtained probate of a will, which was afterwards repealed, were void. And, in support of this principle, 1 Roll.Ab. 909, and Com. Rep. 152, were cited by the counsel for the appellees. But, on belter consideration, these cases have been overruled. The granting of probate by the register of wills is a judicial act, and, while it remains in force, it cannot be contradicted. But the executor, it is objected, derives his authority from the will. He doés so, but the probate, until annulled, being conclusive evidence of the existence of the will, a debtor cannot dispute it, and is therefore justified in making payment to the person who appears to be the executor. This is so plain and reasonable, and the contrary opinion so unjust and inconvenient, that one cannot but wonder it was ever held. In Toller on Executors, 76, 77, 78, the law will be found accurately laid down, except in one instance. Having shown, that payments made to the executor before the repeal of the probate, were valid, he says (page 78,) in case of revocation, all the intermediate cost3 of the executor shall be void. Now, this is a plain contradiction, unless it can be made out, that the receipt of money by an executor is not an act. Perhaps I went too far in saying, that the authority of the executor is derived from the will, and not from the probate. That is the general principle, but there certainly is some degree of authority conferred, indirectly, by the probate, because it is evidence not to be contradicted, that there is a will, and that the person named in it is the executor. A probate of a forged will of a living person, is indeed an absolute nullity; because the register has no jurisdiction, except in case of one who is dead. Such a probate, therefore, is distinguishable from one of a forged will, where the supposed testator is dead; for then the register has jurisdiction. It appears to me, that receipts of money by Robert Peebles, for the debts due to William Huff, and payments made by him of the just debts of Huff, while the probate and letters testamentary were in force, were lawful acts, in consequence of which he might be cited to settle an account before the register, or he might go in and settle it without citation. I am of opinion, therefore, that the Orphans’ Court erred in refusing to examine the account presented to them by the register. Their decree is therefore to be reversed.

The record is to be remitted to the Orphans’ Court, with orders to proceed to the examination of the account, and to pass a final decree thereon.  