
    In the matter of Thomas Drayton’s Will.
    
    The executor of an executor does not represent the first testator unless probate has been taken out on the will of the testator by the first executor. Where the will was proved per testes, and a decision by the ordinary in favor of the will, but the granting of letters of administration suspended by an appeal from the ordinary and in the mean time the executor dies, his executor does not represent the first testator. To constitute probate letters testamentary must be granted on the will.
    This was an appeal from the court of ordinary, tried before Mr. Justice Bay, at Charleston, October Term, 1826. Thomas Drayton by his last will gave to his son William Henry Drayton, the residue of his estate, and appointed him sole executor. He propounded the will, which was resisted by some of the next of kin and after hearing evidence, the ordinary (Mr. Mitchell,) decided in favor of the will and admitted it to probate. From this decision, the parties, who were opposed to the will appealed and gave the ordinary notice not to grant letters testamentary to the executor, until the determination of the appeal. He did not make demand of letters testamentary from the ordinary but possessed himself of the assets as far as he could and administered the estate in various ways. At May Term, 1826, the appeal was tried on an issue devisavit vel non, and the jury found for the will. The parties who opposed the will appealed and in July 1826, William Henry Drayton died, having made his will and appointed Thomas Wilson Esquire his executor, who proved the said will in due form of law. The appeal was then abandoned and Thomas Wilson made suit to the ordinary to grant him a warrant of ap-praisement for the effects of Thomas Drayton, and this raised the question whether Thomas Wilson as executor of William Henry Drayton represented Thomas Dray-ton the first testator, or whether letters of administration cum testamento annexo should be granted. The ordinary decided that Wilson did represent the first testator and from this decision the parties opposed to Wilson appealed; and on the hearing of the appeal in October 1826, the presiding judge, Mr. Justice Bay, reversed the decision. From this judgment of reversal, Wilson appealed on the grounds—
    1st. That William Henry Drayton did not die before probate; as the probate consisted essentially in the judgment of the ordinary allowing the will.
    2nd. That after the appeal, the ordinary had no rightful authority to proceed or administer the executor’s oath, and as William Henry died before the appeal was determined, it was impossible for him to take the oath. And as the means appointed by law for completing the probate was rendered impossible by the act of God, he and his executor ought not to be .prejudiced by it.
    3rd. That the generalrule, thatif an executor die before probate, administration cum testamento annexo must be granted did not apply to a case like this, where the executor was also the residuary legatee, and had done every thing in his power that was essential to complete his right and assume his duty as an executor.
    
      Petigru, Att. Gen. for the appeal.
    If the executor die, before probate his executor cannot prove the will. But in this case the will was proved. William Henry Drayton went to the Ordinary’s office with the Will and the Witnesses, and the Ordinary delivered his judgment establishing the Will. The Executor offered to qualify, but the opposite side entered a caveat, which was not granted, and he died. In point of form the probate was not made. But in substance it was. Probate is sometimes used to mean the mere proving of the Will, or where the evidence has been taken and the ordinary gives the executor a copy of the will. It is sometimes used to signify the establishing the will, and getting the judgment of the Ordinary that it is the will of the testator. When the Executor sues he only says he proved the will and makes profert. Ordinarily the will is only proved by the oath of the testator. The last act done is administering the oath to the Executor, and that is called probate. It is the authenticating the will and giving a copy to the executor. Toller 58. Now it is contended that as W. H. D. never had a copy of this will, he never had probate. But this was wrong, for before his death he had the judgment of the Ordinary establishing the will. He entermeddled with the estate. He could have sued. To be sure he could not have gone to trial without the probate. If by the act of God, the whole means prescribed to complete an act to vest rights, be not complete, the party shall not be injured if he be guilty of no laches. 1 Coke R. 248, Thomas’ edi. Co. Lit. 97c. The Executor here had substantially complied. Besides an appeal suspends the proceedings before the Ordinary. Toll. 73; 6 Coke R. 186, Thomas ed. 4 Leo. 90. Allen vs¡ Duudass 3 T. R. 130. per Buller. If the decree of the Ordinary is reversed, the intermediate acts of the executor are void. Toll. 128, 131. The opposite side prevented the Executor from procuring the requisite formalities of his right. They cannot now object to the want of those forms. So in Shelly’s case, it has been held that if the substantial paid has been complied with, the right is completed. So in case of judgments entered after the death of the defendant. It is said no man can prove a will but the executor named in it. Toll. 114. But Thomas Wilson needs not prove the will. It was proved already per testes, by W. H. Drayton. Thomas Wilson needed no probate. It had been done at his hand. Even if letters of administration on the will were granted, no further proof of the will would be required.
    Colcock, J. But the administrator must swear to the will.
    
      Petigru. That would be necessary if no proof had been offered before the Ordinary. After the evidence of the witnesses, taken by the ordinary, and upon record in the Ordinary’s office, and his judgment thereon, it stands as a will, and the administrator need not swear to it. It had already been proved in solemn form. The case resolved itself into this — what has been wanting ? Nothing but the oath of W. H. D. — for as to the copy, that was nothing; for it might be obtained now, and probate when granted refers back to the death. On the doc trine of relation, he thought it was not wandering to apply the rule to this case. Toller 75. There was reason why the Ordinary should not grant letters now, as the clerk signs judgment after the death of the defendant. The commission is not the office. Marbury vs. Madison, 1 Craneh 137; Eggleston vs. City Council, 1 Const. Rep. 45. But suppose that W. H. D. had taken the oath, he could not swear for his executor. What was that to Thomas Wilson? He has taken the oath as executor of William Henry Drayton, and he stands in his shoes and swears he will do every thing rightfully, as if he were W. H. D. Was it ever heard that a person lost his office, by not taking the oath? It is administered with the delivery of the commission. It was no more essential lo W. II. D. than the commission. Suppose the ordinary were to say, I have always considered letters of administration as granted and have them now to deliver? Could your honors say any thing against it?. . I state the case thus. The ordinary has delivered his judgment and letters of probate now lay in his office for him. It is just the case of Marbury vs. Madison. The President in office had made them out in his last days. The officer to carry them, could not take so ■ many and was obliged to-leave them, and forsooth the President who succeeded him turned the keys upon them and locked out the messenger, but the commission though never delivered was held good. The accident in this case was precisely within the case of Shelly, and was like the case where a deed by accident has not been delivered.
    
      King, contra.
    Probate was not only the proving the will, but taking out letters testamentary and until then, no rights are consummated. An action may be commenced, but the plaintiff cannot declare before probate, 3 M‘Cord 371. He must set them forth in the declaration. The certificate is required, Toller 68. The court knows that in this country the executor proves the will and renounces, and unless he take the oath and gets letters he is no executor. Wills are daily proved and none of the executors qualify, 1 Salk. 308, and yet his friends argument would make them all executors and give their executors the rights he is contending for in this case. Proving of the will, of course, is necessary before letters, 
      ■2 Swinb. Pow. Ed. 742. Until probate is taken out the party is not executor in any legal sense. In Shelly’s case neither party was to receive any benefit. The case of Marbury vs. Madison does not apply. There the commission was made out. The party had taken the oath of office, and every thing else that he could do. To complete an act there must be consent. But the executor being dead, renders it impossible.
    
      Petigru, in reply
    
    Taking the oath was a part of the probate, but the term probate was of loose meaning, and proving the will was the substantial part. That alone was absolutely necessary. The passing of the recovery in Shelly’s case exactly illustrated his idea. Thomas Wilson as much represented the testator here, as the heres factus of the civil law.’ As to the argument of the alien it did not apply. There is no such thing as a half citizen.
    The Court. Yes, denizen.
    
      King. And my friend has made out half probate.
   Curia, per

Johnson, J.

In this case the court concur in the opinion expressed by the presiding judge and only find it necessary to give in a concise form the reasons on which that concurrence is founded. It is agreed by the counsel on both sides, and the authorities cited at the bar establish clearly that if an executor die before probate, his executor cannot prove or take on himself the execution of the will of the original testator; and with respect to the first ground of the motion, the only question is, whether the will of Thomas Drayton was admitted to probate within the meaning of the rule. In England, from whence this rule is derived, the probate of the will in the common form, consists of the oath of the executor, that the paper propounded is the true last will and testament of the deceased, and that he will truly perform it by paying, first, the testator’s debts, then legacies, &c. The original is then deposited in the registry of the ordinary and a copy thereof is made out under his seal and delivered to the executor with a certificate of its having been proved before him, and such copy and certificate is stiled the probate. Without regard to the formula of making and delivering a copy of the will and the certificate, it will be seen, that three things are necessary to the completion of the probate — 1st. Proof of the genuiness of the will by the oath of the executor. 2nd. His acceptance of the trust; and 3rd. The sanction or grant of the ordinary allowing it: and that all these are necessary to probate within the meaning of the rule, will be seen by Toller’s Law of Executors, 49. where it is expressly laid down, that if an executor die before probate, he is considered in point of law as intestate with regard to the executorship, although he may have made a will and appointed executors, and although he die after taking the oath, if before the passing of the grant, (cited Offi. Ex. Suppl. 74. 5. 182. 11 Yin. Abr. 68. 90.) The will of Thomas Dray-ton was not, therefore, admitted to probate within the meaning of the English rule, and his executor died intestate as to the administration. But the objection applies still with greater force under the laws of this state, and the state of facts existing in the case. Here the law has superadded, as a pre-requisite, the proof of the will per testes as necessary to the probate, and at this stage of the proceeding, it was arrested by the appeal from the decision of the ordinary and terminated then in the death of the executor, William Henry Drayton, and the subsequent abandonment of the appeal; so that in point of fact, the question whether William Henry Drayton was the executor and entitled to the administration, was never before the ordinary and the time had not arrived when he could accept or renounce it. The probate does not then consist of the judgment of the ordinary allowing the will, for even after this step, the parties interested would be permitted to contest his right to the administration by shewing that he was not the person named in the will, or that his name was interpolated and the like, or he might himself renounce the administration; and, perhaps, the true rule by which to determine' whether an executor transmits to his executor the administration of the first testator’s estate, would be best ascertained by enquiring whether the proceedings are in such a state that he can not renounce. That he may do so at any time before probate according to the rule in England, (or to speak with a more direct reference to the state of things existing here,) before he qualifies, is a proposition that none will controvert. Wm. H. Drayton had not qualified as executor of the will of Thomas Drayton, and his executor is not entitled to his administration. 2nd. The appeal from the judgment of the ordinary did, as is supposed, arrest the proceedings in the court of ordinary, and Wm. H. Dray-ton could not legally qualify pending that appeal, but I ap. prehend that the maxim, actus Dei nemini facit injuriare, has no application to this question. It operates as an excuse for not performing a duty or obligation which from that cause had become impossible, but not, I apprehend, per se, to vest a legal right when none before existed. Here Wilson the executor of Wm. H. Drayton does not claim to be excused from the performance of a duty or obligation, but to be invested with a right which had no legal existence.

3rd. The last ground of the motion is rather a matter of argument than a point of law which has been sufficiently noticed in the preceding remarks.

Motion refused,  