
    No. 3.
    
    TUCKER, EXECUTOR, agaist STARKS & BELL.
    
      Franklin,
    
    1819.
    A.N executor has no authority under a will, until the same is approved or allowed by the Judge of Probate.
    THIS was an action of ejectment, tried at the October ad« journed term, 1819.
    Verdict for plaintiff.
    A bill, containing several exceptions, was filed. The opinion of the Court was founded on one exception only, as follows : The plaintiff offered the letters testamentary, by which he is executor. Defendants objected; that they had never been approved by the Judge of Probate, objection over-ruled. The record of the Court of Probate, was in substance, that the subscribing witnesses to the will, appeared before the Judge of Probate, and made oath that the testator signed and sealed the will, in their presence, and that he was of sound mind. It did not'appear, that there had been any approval or allowance of the will, by the Judge of Probate, but merely a recital of the evidence without any judgment or decree.
   The Court decided that the plaintiff had no authority to act under the will, and a new trial was granted.  