
    Ratrie vs. Wheeler’s Ex’r.
    Appeal from Montgomery county court. Debt on & single bill, executed on the 25th of July 1818, by appellant, (the defendant in the court below,) to the appellee’s, testatrix, Elizabeth Wheeler. The writ issued on the, 26th of January 1820. The proferí made of the letters in the declaration, which was filed at March term 1821, was as follows: “.As the letters testamentary of said Elizabeth, whereby if sufficiently appears to the court here, that the said Robert is executor of the testament and last will of th'e said Elizaht'h, and hath the execution thereof.” The defendant pleaded ne unques executor, and issue was joined on the general replication.
    
      A cvfiif of the •Will «-1K. w. of t’irt'inia, was exhibited and proved in this state, and letters tiMa monta ry granted ?o one of 1I10 executors therein smr.ied, the other inning mummed. Before prantin{? the letters,, amt liad bcf'n brought, in the jiame of the exe ctnor to whom letteis were after-wards granted, and who before the letters grant ed d 'eiared m the tieii.m and made pvofert- Haiti, that the action could not be sustametl.
    At ihe trial the plaintiff, (now appellee.) read in evidence the single bill upon which the action was founded, ami the letters testamentary granted, on the 25th of May 1821,,by the orphans court of Montgomery county, to the plaintiff, in which letters it. stated, “that a copy of the last will- and testament of Elizabeth Wheeler, of Water
      
      ford, "ui the county of Lóudon, and state of Virginia, de '• ceased, hath in due form of law been exhibited, proved and recorded; in the office of the register ot wills for Montgomery county, a copy of which is to these presents annexed, and administration of all the goods, &c. of the deceased, is hereby granted and committed unto Robert Baden, one of the executors by the said will appointed, the renunciation of Henrietta Cotin being proved and recorded.” The plaintiff there rested his case. The defendant then prayed the court to instruct the jury, that in this action the plaintiff' is not entitled to recover; which the court \_Kilgour, A. J.] refused to do. The defendant excepted, and appealed.
    The cause wáá argued before Buchanan, Earle; Martin, aiid Dorsey, J. <
    
      B. Porresi, for the Appellant,
    contended, 1. That the . appellée had no power to sue when the action was, commenced, there being two persons named executors in the will, and this suit was brought in the name of one before letters were granted;
    2; Thai if the appellee was authorised to commence the suit before letters were' granted, he could not declare before probate of the will.
    3. That the appellee could not qualify as executor iu this state oh producing a copy of the will -
    
      4. That the paper produced as letters testamentary did not support the proferí made in the declaration. He referred to 3 Bac. Ab. tit. Executors and Administrators, (E 14,) 53. Roll’s Ab. 914. Sir T. Raym. 481, and the act of 1798, ch. 101, sub ch. 3, s. 13.
    
      Magruder, for the Appellee,
    referred to Sewell vs. Hepburn, in this court at June term 1818.
   JUDGMENT REVERSED,.  