
    
      Thompsons v. Meek.
    April, 1836,
    Richmond.
    Wills* — Grant of Administration — Failure of Record to State Renunciation by Bxecutors — Effect.—A court of pro,bat receives proof of a will and admits it to record, and six months afterwards grants administration with the will annexed: and it does not appear by the record of the court of probat that the executors named in the will had ever renounced : Held, the failure to state such renunciation upon the record does not mate the grant of administration absolutely void.
    Same — Same—Presumption as to Regularity. — In a suit in equity by devisees against an administrator wih the will annexed and a purchaser from him, the court will presume the grant of administration to be regular, unless its regularity be drawn in question by the pleadings.
    Same — Same—Renunciation by Executor — Parol Evi dance. — If the grant of administration with the will annexed be alleged to be irregular upon the ground that the executor had not renounced the fact of such renunciation may be established by parol evidence.
    Same — Construction—Payment of Debts — Case at Bar. —A testator directs 1st, that his funeral expenses and all his just debts be paid; 2dly, he desires that certain lanes, which he specifies, be sold by his executors, and the money appropriated to the payment of debts; he then devises a particular tract of land to his son and daughter; afterwards he directs, if necessary for the payment of his debts, that a certain negro boy be sold for the purpose; and if the lands and negro directed to be sold should not be sufficient for the payment of his debts, he then directs that a part, the least in value, of the tract given his son and daughter, be sold “to fully satisfy and pay all his just debts:” Held, the testator’s meaning was, that all his debts should be fully satisfied, and so much of the tract of the land last mentioned be sold as would effect the purpose, even though it might take the whole; but that, before any part of this tract was sold, the other property specifically appropriated to the payment of debts ought first to be applied to that object.
    James P. Thompson of Washington county, by his last will dated the 9th of June 1813, devised as follows: “1st, I desire that my funeral expenses and all my just debts be paid. 2d item, I desire that after my decease the lands around the several tracts of land by me conveyed and sold to different persons, lying in Burk’s garden, Tazewell county, be sold off by my executors, and *sold to the best advantage, by private sale or otherwise, and the money arising therefrom to be appropriated to the payment of my debts. Item, the above land designated to be sold is not to interfere with that hereunder bequeathed to my little son and daughter. Item, I bequeath and give unto my son Patton James Thompson and my little daughter Catharine Shelby Thompson, all that tract of land on which I now live, including the Blue springs, Cherry tree fields and Slusse’s lease, and adjoining the lands I sold to A. Thompson and others. Item, I give to my beloved wife Margaret one third part of the above bequeathed tract of land given to my little son and daughter.” After bequeathing to his wife, in absolute property, his household and kitchen furniture and some other articles of personalty, and three slaves for her life, and to his son and daughter two slaves each, the testator proceeded thus — ‘ ‘Item, I order, if necessary for the payment of my debts, that Peter, a negro boy I purchased from Day, be sold for that purpose. Item, I further order that if the lands I now hold, the land, and negro I have directed to be sold be not sufficient for the payment of my debts, that there be a part the lease in value of the tract I have bequeathed to my son and daughter, be sold to fully satisfy and pay all my just debts.” The testator then directed his executors to sell, on twenty months credit, all his personal property not bequeathed by his will; and appointed'James Shelby and William Poston his executors.
    The testator died in February 1814; and his will was proved and admitted to record in the county court of Tazewell, on the 26th day of April 1814.
    On the 25th day of October 1814, the county court, on the motion of William P. Thompson the brother of the testator, granted him administration with the will annexed. The order granting the administration did not state that the executors named in the will had been summoned, or had renounced the executorship, nor did *it in any way notice them. Neither did it state that the widow had relinquished her right to qualify as administratrix, or otherwise refer to her. It was simply an order granting administration with the will annexed to William P. Thompson, on his motion.
    In July 1817, Margaret Thompson the widow, and Patton James Thompson and Catharine Shelby Thompson the infant children of the testator, by the said Margaret their mother and next friend, filed their bill against William P. Thompson the administrator with the will annexed, and Joseph Meek, in the superiour court of chancery for the Wythe district; setting forth the provisions of the will as above recited; that the testator had no confidence in his brother William P. Thompson, and wished to exclude him from having any thing to do with his estate; that the executors named in the will failing to apply for probat thereof, and not appearing to renounce the executorship, the said William P. Thompson, contrary to the wish and intention of his deceased brother, and con-trarj' to law, as the complainants were advised, applied for and obtained letters of administration with the will annexed, and having so obtained them, instead of selling the lands first devised to be sold for payment of debts, allowed the debts of the testator to be collected by execution and sale of the slaves bequeathed to the complainants, and without selling first the land around the several tracts of land conveyed and sold to different persons by the testator, proceeded to sell, not a part the least in value of the lands devised to the complainants, but the main body, the very lands intended for the complainants, to wit, the Blue springs, Cherry tree fields and Slusse’s lease, and these he sold to Joseph Meek, who well knew the provisions of the testator’s will, the state of his affairs, that the lands devised to be first sold had not been sold, and that no such sale as was made to him was necessary for the payment of the testator’s debts, or authorized by his will; that the administrator *had applied the proceeds of the sale to his own use; and that he had, bjr multiplied acts of mismanagement and fraud, left the complainants without the means of subsistence. The bill therefore prayed, that the sale of the land to Meek mignt be set aside; that the administrator might be required to shew what lands of the testator he had sold, to whom, and on what terms, and to exhibit an inventory ■of the testator’s goods, chattels and credits, and a list of the debts due from him at the time of his decease, and to render an account of his transactions as administrator; and general relief.
    William P. Thompson the administrator answered, that the testator, far from wanting confidence in him, or wishing to exclude him from the administration of his estate, had procured him to write his will, and had then, and often before, earnestly requested that he would consent to become the executor, which he declined, but promised to apply for letters of administration in case the executors who might be named in the will should refuse to take upon themselves the executorship; that after the testator’s death, having ascertained from the executors that they were unwilling to accept their appointment, he applied for and obtained the grant of administration : that the testator, in his lifetime and after the date of his will, had sold several parcels of the lands devised to the complainants, and the greater portion of the lands which by the will were first directed to be sold for the payment of debts, leaving an inconsiderable portion which could not be sold for one dollar per acre; and had also sold the slave Peter, subjected in the will to the payment of debts, and nearly all the slaves bequeathed to the complainants: that the personal estate remaining at the testator’s death was very inconsiderable, not exceeding 300 or 400 dollars, and this the respondent had delivered to the plaintiff Margaret, on condition that she should account to him for it, in case the situation of the estate should require it: *that the debts due the estate were trifling, and respondent believed they would not yield SO dollars: that the estate was very much involved in debt, and the respondent had no means of preventing the sale of such slaves as had been taken in execution : that under these circumstances, and being advised that the will subjected all the lands to the payment of debts, he had sold the remaining part of the land devised 'to the complainants, being about 6S8 acres, to Joseph Meek for the price of 4000 dollars, which was the highest that could be obtained: that the whole of this purchase money was necessary for the payment of debts, and, he believed, insufficient for that purpose, that the remaining portion of the lands which were first by the will directed to be sold, could not have been sold, at any time since the testator’s death, without a great sacrifice, which the respondent was unwilling to make: and that he was ready to render an account of his administration.
    Meek, in his answer, admitted that he had purchased from the administrator 658 acres of the Blue spring and Cherry tree field tract, for 4000 dollars, and had received a conveyance thereof. He stated that he had never seen the testator’s will, and knew no more respecting its provisions than was set forth in the complainants’ bill; but by the provisions therein set forth, he insisted that all the lands were subjected to sale, if necessary for the payment of debts, and he said, he was informed by his codefend-ant, and believed, that the sale made to him was in fact necessary for that purpose. He farther insisted that his purchase was a fair one, and that the price given was the full value of the land. As to the other matters stated in the bill, he disclaimed all knowledge, and referred to the answer of his codefendant the administrator.
    The chancellor, by order made the 27th of Mp.y 1819, directed a commissioner to state and report an account of the defendant Thompson’s administration of his testator’s estate.
    *Many depositions were taken and filed by the parties, in the progress of the long controversy which ensued.
    It appeared from the evidence, that the testator, after the date of his will, had sold the whole of Slusse’s lease and a considerable part of the other lands devised to the complainants, as well as a portion of the lands which by the will were directed to be first sold for the payment of debts. But there was no evidence, that the testator had in his lifetime sold the slave Peter, as alleged in the answer of the administrator Thompson.
    The only evidence tending to shew a renunciation by either of the executors named in the will, was the deposition of a witness, wrho stated, that on the day the will was admitted to record he heard William Poston, one of the executors therein named, mention his age and infirmities, and the embarrassed situation of James P. Thompson’s estate, as “the reason why he refused to qualify.”
    The appraisement of the testator’s personal property, made in November 1814 under an order of the county court of Taze-well, included none of the slaves, and the articles comprised in it, which were chiefly furniture, were valued at only 341 dollars.
    The sale of the land to Meek was made in December 1814. It was fully proved that the administrator was, at the time, individually indebted about 1000 dollars to Meek, and about 2000 dollars to one Smith, for which last mentioned' debt his own lands were mortgaged ; that Meek’s demand against the administrator was discounted from the purchase money; and that his notes for other portions of the purchase money, to the amount of the 2000 dollars due Smith, were assigned to Smith by the administrator in payment of that debt.
    Pending the suit, a part of the lands which the will subjected in the first instance to the payment of debts, was sold by the administrator, and the proceeds amounted to 678 dollars. The remaining quantity was variously ^estimated by different witnesses, at from 500 to 800 acres; but it appeared that the average value did not exceed 25 cents per acre.
    In March 1824, the commissioner made a report of the defendant Thompson’s transactions as administrator, shewing a balance due from him to the estate, of 1072 dollars on the 1st day of January 1823. He also reported, specially, an alternative statement, which if adopted by the court would increase the balance in the administrator’s hands to 1750 dollars. And he appended to the report, at the instance of the. administrator, a statement of unsatisfied claims against the estate, amounting to more than 5400 dollars of principal money.
    Both the administrator and the complainants excepted to the report; the administrator insisting that he was entitled to additional credits for payments made, to the amount of 1656 dollars; and the complainants objecting that two credits, amounting to 786 dollars, had been improperly allowed by the commissioner, and that a debit of 500 dollars, which they insisted the administrator had actually received, had been improperly omitted in the account. The chancellor overruled the exceptions taken by the administrator, sustained those taken by the complainants, and recommitted the report to be reformed accordingly, without taking any notice of the alternative statement made by the commissioner. By the actual account upon which the chancellor thus acted (supposing it reformed according to his directions), the debts due from the estate of the testator amounted to 3200 dollars, excluding the unsatisfied claims the statement of which was appended to the report. There was conflicting evidence relative to the contested items of the account; and on the whole, the state of the accounts between the administrator and the decedent’s estate was so uncertain,.that, as this court thought, it was impossible to determine with any precision *whether the sale of the land to Meek was or was not necessary for payment of the testator’s debts.
    Nevertheless the chancellor, by his decree of the 5th June 1830, recommitting the report as stated above, and declaring that he perceived no good reason to interfere with the purchase made by Meek from his codefendant Thompson the administrator, adjudged that Meek be forever quieted in his possession and enjoyment of the land so purchased, and that as to him the bill of the plaintiffs be dismissed, but without costs. From this decree the plaintiffs appealed to this court.
    The cause was argued here by Johnson for the appellants, and Robinson for the appellee.
    1. Johnson treated this as a bill alleging the grant of administration to be void, and seeking to set it aside. He said it was clear that where executors - are appointed, they must refuse the executorship before administration can be granted. Toller on Executors, 89; 1 Williams on Executors, 367. And he insisted that a grant of administration without such refusal was void. Here, he said, the record did not shew that the executors ever renounced, nor was there any proof of their refusal to undertake the executorship. If the grant of administration was void, it followed that the sale by the administrator was also void.
    Robinson answered, that if the validity of the administration had been put in issue, the renunciation of the executors might have been shewn by matter in pais; but the question was not presented by the pleadings. The plaintiffs supposing the sale to pass the title, had come into equity' to set it aside. If, however, the court could consider the question, and were to hold the grant of administration to be void, the bill of the plaintiffs must be dismissed for want of jurisdiction; for, no title passing by the sale and conveyance of the administrator, the remedy at law against the purchaser would be complete.
    *2. Johnson contended, that the power which the testator had given his executors to sell a part, the least in value, of the tract which he had given his son and daughter, was not a power to sell the whole tract; and even though there might be a charge upon the whole of the testator’s real estate, which a court of equity might enforce, thaj: would not justify the administrator in selling the whole. But he insisted there was no such charge. The effect of the general direction in the beginning of the will, for the payment of debts, must, he said, be limited by the subsequent charge expressly made on a part of the land. The sale was not only without authority, but made by the administrator for the purpose of paying his own debts; and the purchaser was entitled to no favour.
    Robinson answered, that the true construction of the power to sell was, that so much might be sold as was necessary, and if the whole was necessary, then the whole might be sold. But, at all events, there was a charge by the words in the commencement of the will, upon the whole estate. Clarke and wife v. Buck, 1 Leigh 487; Trent v. Trent’s ex’x &c., Gilm. 174. The latter case shewed that the charge upon the whole was not retracted by the subsequent appropriation of a particular part. If the case was one in which, had no sale been made by the administrator, a court of equity might and would now decree a sale, then it was useless to set aside the sale already made, provided a fair price had been obtained. The particular manner in which the funds were applied was unimportant.
    3. Johnson argued, that the sale which had been made was in fact not necessary to pay the testator’s debts; and Robinson, that it was.
    
      
      See monographic note on "Wills.”
    
   BROCKENBROUGH, J.

It was contended by the appellants’ counsel, that the grant of administration on the estate of James P. Thompson was merely void, because *it does not appear that the executors appointed by the will had ever renounced. I think the objection cannot prevail. The statute declares that “if the executors named in any will shall refuse the executorship, or being1 required to give security shall all refuse or fail to give the same, in either case the court may grant a certificate for obtaining letters of administration with the will annexed.” It must be recollected that the case is not now before a court of probat, which might revoke an administration improperly granted, and make a due and regular appointment. It is in a court of equity, which cannot in a collateral way set aside or disregard a grant of administration, any more than it can reverse a judgment of a court of law. Nor is the question as to the validity of this grant, made by the pleadings in the case. If such had been the issue, it might have been in the power of the appellee to shew that a renunciation of the executorship had been made, either on the record, (which, however, was not necessary ; Geddy &c. v. Butler and wife, 3 Munf. 345; Nelson v. Carrington &c., 4 Munf. 332,) or by declaration made in pais, or by circumstances leading to the same conclusion: or he might have shewn that the executors had refused or failed to give security, having been required to do so, which is tantamount to a renunciation, and justifies the court of probat in granting administration with the will annexed.

The next question is, whether the administrator with the will annexed had any power under this will to make sale of the land in Burk’s garden (which the testator devised to his two children) for the purpose of paying the debts of the deceased, and whether the sale made to Meek was conformable with the power conferred by the will. In the first clause of the will the testator desires his funeral expenses and all his just debts to be paid. This clause confers no power on the executors to sell any part of the land. It probably operated as a charge *on the whole land, and the case of Trent v. Trent’s ex’x &c., Gilm. 174, might render it questionable whether that charge is retracted by the subsequent selection of a part of the land to be sold for the purpose. It is not necessary, however, to advert to that clause for any other purpose than to shew that it was the primary wish of the testator that his debts should be paid, even though his land might be required to defray them. It is the proper construction of the second clause which is to determine the decision of the subject now under consideration. The testator, after directing that certain parcels of land, lying around the land which he had previously disposed of, should be sold by his executors, who should apply the proceeds thereof to the payment of his debts, and after devising the tract on which he lived, including the Blue spring, Cherry tree field, and Slusse’s lease, to his two children, and making other provisions for the same purpose, says, — ■“ ‘I further order, if the lands I now hold, the land and negro I have directed to be sold, be not sufficient for the payment of my debts, that there be a part the least in value of the tract I have bequeathed to my son and daughter, be sold \ to fully satisfy and pay all my just debts.” The executor (or administrator with the will annexed) was bound in the first place to apply the whole of the personal estate to the payment of the testator’s debts: if that should not be sufficient, he is expressly empowered by the will to sell certain parcels of land; and if they should not be sufficient, the last clause which I have quoted, by a necessary implication, gives him power to sell the whole of the land devised to his children. For although he did not expect that the whole would be necessary to pay his debts, and he restricts the executor to the sale of the part the least valuable, yet it is to be sold so as fully to pay and satisfy all his just debts. The executor, then, is expressly empowered to sell all but the last most valuable acre or minute part of the land; and as he was fully to satisfy the *debts, he is by implication authorized to sell even that last acre.

But the question recurs, has the administrator, in the present case, fairly and with discretion exercised the powers conferred on him? I think he has not. He has failed to appropriate the whole of the personal assets to the payment of the debts; he has failed to sell the parcels of land which were specifically appropriated for that purpose ; and he has, with most indecent haste, sold, not a part only, and that the least valuable, of the Blue spring and Cherry tree field, but he has sold the whole of that land, within, two or three months after he qualified as administrator, and before he could know that it was necessary to do so. He appears to have been stimulated to that sale for the purpose of paying off some of his own debts. A considerable part of the purchase money was appropriated to the discharge of a debt due from himself to Francis Smith, for which his own lands we're bound; and it appears from the evidence of Philip Greever, that the ap-pellee Meek, the purchaser, was the creditor of the administrator, to the extent of one thousand dollars, one fourth of the purchase money, and that debt was applied to the payment of it. Thus the greater part, I think about three fourths, of the proceeds of the testator’s land, was applied to the payment of the individual debts of the administrator. Meek the purchaser was not onljr apprized of the before mentioned restriction on the power of the executors to sell the whole land, but he was actually cognizant of, if he did not encourage, the breach of trust committed by the administrator. I am of opinion that the chancellor erred in dismissing the bill as to Meek, and in quieting his title to the land. But yet I am unwilling that this court should unconditionally direct the sale io be set aside. The case as to the administrator is yet in progress; the settlement of his accounts is not yet completed ; the chancellor has not yet decreed that *the parcels of land before mentioned shall be sold and brought into account. When these things are done, and the whole subject is before him, he will be better able to decide whether it was necessary to sell the whole, or any part, of the tract called the Blue spring and Cherry tree field; and if it was, whether, from the evidence taken or to be taken, it is best for the interest of the devisees that the sale already made shall be set aside, and a new sale directed either of a part or the whole, or to confirm and establish the sale already made. I am for reversing- the decree with costs, and remanding the cause for further proceedings. ,

CABELL, J., concurred.

CARE, J.

The first point contended for-by the counsel for the appellants was, that the administration granted to William P. Thompson was wholly void, because the will having appointed executors, there was no propf in the record that they had renounced. In the first place, this is a question not raised by the bill; for that is predicated on the idea of an administration which, .however irregularly granted, enabled the administrator to act. It is filed to set aside the sale of the lands, not because sold by one who was not administrator, but by an administrator who violated his duty in the manner of the sale, and exceeded the power given by the will. It rests on the ground that the legal title has passed by the sale, which could not be, if the vendor was no administrator: and if the legal title did not pass, it is in the plaintiffs, who in that case can want no aid of equity. But is this a void administration? Can we so decide? The court which appointed the administrator is the tribunal appointed by law for that purpose; the case was regularly before them, and their appointment has never been reversed, never appealed from. Again, in Geddy &c. v. Butler and wife, 3 Munf. 345, and Nelson v. Carrington *&c., 4 Munf. 332, we are told that the renunciation of executors need not be by matter of record, but may be proved by declarations in pais, or presumed from circumstances; and in Burnley’s adm’r v. Duke &c., 1 Rand. 108, it is decided that such renunciation may be presumed, from the facts of an executor’s failing to qualify, and joining another (who had qualified as administrator) in a sale of land directed by the will to be sold, such joining being not in his character of executor, but as heir of the testator. Must we not then take it for granted, that the court making this appointment had before them either such proofs of parol declarations as shewed the renunciation, or such circumstances as justified the presumption? But these would not be spread upon the record, as there was no opposition, that we hear of, to the appointment. The next question argued was, whether the whole real estate of the testator was .charged with the payment of his debts, and if so, whether it was a mere charge, or amounted to a power given to the executors to sell? I think it was a charge upon the whole. The first clause in the will is, “I desire that my funeral expenses, and all my just debts be paid.” This, in the commencement of a will, has often been decided to be a charge on the realty. Trent v. Trent’s ex’x &c., Gilm. 174; Clarke and wife v. Buck, 1 Leigh 487. But the will does not stop here. The next clause directs, that the lands lying around the land he had sold to different persons, in Burk’s garden, be sold by his executors' to the best advantage, and the money arising therefrom to be appropriated to the payment of his debts. He then devises certain lands described, to his son and daughter and wife, and divides his slaves between them. But his debts still weighed upon his mind, and he adds, ‘ ‘I order, if necessary for the payment of my debts, that Peter a negro boy &c. be sold for that purpose. Item, I further order, that if the lands and negro I have directed *to be sold be not sufficient for the payment of my debts, that there be a part, the least in value, of the tract I have bequeathed to my son and daughter, sold, to fully satisfy and pay all my just debts.” Here we see again emphatically declared his purpose to fully pay and satisfy all his just debts; and as a means of fulfilling this purpose, his executors are directed (in addition to the other lands and slave) to sell a part of the land devised to his children — “a part least in value” — by which I suppose he meant that so much as would be sufficient to pay the balance of his debts should be taken off, in such way as would take the land least valuable and least affect the value of the remaining land. This shews that he did not expect it would require a sale of the whole land to pay the debts. But that does not vary the main and fixed purpose of this mind, which was that all his debts should be fully paid and satisfied, and that so much of this land as would effect his purpose should be sold; and if it took the whole, it is clear to me that the whole should be sold, and that his executors had under this clause a power to sell the whole, they being the agents named by him for such sale. It is equally clear, that this power devolved by our act upon the administrator. But yet I think that in making these sales, and especially in the order and succession of sale, the directions of the testator should have been strictly followed; that the administrator should have sold first the slips of land, then the slave, and if these did not suffice to discharge the debts, then so much of the other tracts as would. The administrator instead of this has sold at once the whole of the land devised by the testator to his children. This I think gave just cause to the devisees to file their bill, upon the ground that the state of the funds did not require - a sale of the whole or of any part; and to call for a settlement of the administration in order to shew this: and if it is shewn, the sale I think should be set aside, as the purchaser was bound to know the power under *which the administrator sold, and is therefore a purchaser with full notice. The chancellor however has dismissed the bill as to this purchaser, and quieted his title: while the accounts (as those of my brethren who understand them better than I do, tell me) are still in such a state as to leave it quite uncertain whether the whole, or what portion, of the land need have been sold. Upon this ground I agree that the decree should be reversed, and the cause sent back, and reinstated as to Meek, to be proceeded in according to the principles declared.

BROOKE, J-

I think the whole of the testator’s land was subjected to the payment of his debts by his will, if necessary for that object, in the event that the personal estate and the particular portions of the land directed by the will first to be sold were inadequate; but before that was ascertained by a full account of the assets, and the application of the sales of these particular portions designated by the will, it was error to sell the whole. The bill therefore ought not to have been dismissed as to the appellee until these matters were inquired into, and it was found that the sale of the whole was necessary. As to the objection that the administration was void, it not appearing that the executors named in the will renounced it, — if that be so, it was for another forum, and not a court of equity, to inquire into it. It was not necessary their renunciation should appear on the record of the court granting the administration, as has been decided by this court; and if it were, we could not reverse the decision of the court of probat by a bill in equity. The objection that the administrator was in his own right a debtor to Meek the purchaser of a portion of the land, is no objection to the sale of the land to him, if the sale Was a beneficial sale to the estate; it may have enhanced the price; which ought to be inquired into before the sale is set *aside, as it appears that the administrator is solvent, and a creditor of the estate. I concur, therefore, in the decree reversing the decree of the chancellor,

TUCKER, P.

I am of opinion that the bill in this case was erroneously dismissed as to the appellant Meek, and that the cause should go back for further proceedings, until, by a settlement of the administration account, and a thorough investigation of the transactions of the administrator, it shall be definitively ascertained whether any, and what part, of the property sold by him to the appellee was necessary to be disposed of for payment of the debts of the testator. While that settlement was only in progress, it could not have been proper to dismiss the bill as to Meek. The land he purchased was only chargeable in the event of the deficiency of the personal fund, and certain portions of real estate which were directed to be first sold for the payment of debts. The sale of that land to him was, therefore, only justifiable in case of such deficiency, and he ought not to have been quieted in his possession while the ascertainment of that fact was only in fieri. As the account in its present state is liable to be varied in its progress to final adjustment by the decree of the court, it could not properly be regarded as a sure foundation for the action of the court in relation to Meek, even if the presumptions it affords in support of the necessit3r of a sale of the whole of the lands of the infants, were stronger than they are. Eor my own part, from the examination I have been enabled to make of the confused mass of vouchers and depositions, and of the inconclusive report of the commissioner, I have been led to the conjecture that a sale of the whole land was not rendered necessary by the circumstances of the estate, and of course that the bill ought not to have been in all things dismissed as to Meek. The case should go back for further examination, and if the sale should *prove to have been unnecessary, it should be set aside, unless it should appear to have been an advantageous sale, in which case it should be at the option of the devisees to confirm it.

In giving this opinion, it is proper to remark that it rests in no degree on the alleged nullity of the grant of administration, nor on the supposition that there is no charge upon the lands of the children created by the will.

With respect to the first, it is not to be denied that an administration granted where there is an executor, without a refusal of the executorship by him, is by the authorities declared to be void, or a nullity. But how, and before what tribunal, is it a nullity? Before the court of probat indeed it is so completely void,that upon the production of the will, letters testamentary may be granted to the executor at once, without the repeal of the letters of administration. But the question here is, whether in this, collateral way, and before another forum, this sentence of the court of probat can be assailed and pronounced to be a nullity. If so, it presents the anomaly, that the sentence of a court which stands unreversed may be set aside by a co-ordinate tribunal, —not on the ground of matter extrinsic, but upon the ground of error in the proceeding of the court. In other words the co-ordinate tribunal would be converted into an appellate court, to review and reverse the decision of the court of probat. This surely never has been deemed even within the ample powers of a court of equity. For the grant of administration by the court of probat is a judicial act, and as such must be conclusive on all other courts, until reversed by appeal or revoked by that court itself. In the case of Allen v. Dundas, 3 T. R. 125, where a debtor had made payments to an executor who had obtained probat of a forged will, those payments were held to discharge him. And Buller, J., said, he was clearly of opinion that the *granting probat was a judicial act; that it was conclusive until repealed, and that no court of common law could admit evidence to impeach it. Yet the case of a forged will is one of those in which the probat is considered void ab initio. See also 1 Ld. Raym. 405, and Phil, on Evid. 245, 246, where it is said that “the sentence of the ecclesiastical court, pronounced in the exercise of this their exclusive jurisdiction in the probat of wills and granting administrations, is. so binding on the temporal courts as to be conclusive evidence of the right directly determined. It is conclusive of the same matter coming incidentally into question in a civil case in another court.” With respect to the cases in our own courts, I content myself with referring to what has been said by my brother Carr.

With respect to the question of charge, I think it quite clear that there is an express charge upon the lands sold to Meek, in case of the deficiency of the other funds. Whether that charge would cover the whole or extend only to part of the tracts devised to the son and daughter, it might be premature to decide, as it may happen that less than the -whole will suffice. I shall therefore give no opinion upon the point, but shall conclude with the remark, that as there is here an express authority to sell in case a sale should become necessary for payment of debts, the executor (and, as he did not qualify, the administrator under our statute), was empowered to perform that dutyr.

I am of opinion to reverse the decree, and send the cause back for further proceedings. _  