Executors of - v. Oldlham, 2 N.C. 190, 1 Hayw. 190 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 190, 1 Hayw. 190

The Executors of — v. Samuel Oldlham.

"Where an executor declares as executor, there he makes proferí of Ills letters testamentary, and they are to tie objected to in pleading upon oyer of them, or by demurrer, if any defect appears in the declaration 5 and after the first term, they need not be produced again. But, where an executor declares upon his own possession, the fact of executorship forms part of his title, and must be proved upon the trial by the production of the letters testamentary themselves ; unless they have been lost, when, perhaps, other proof-oi executorship will be admitted.

Detinue for negroes in the Plaintiff’s own possession. Tiie Plaintiff proved the. wench from whom these negroes were descended, to have been the property of tfie testa-1 tor; that she continued to be his property,* and was in his possession at the time of his death ; that after his death, she came into the possession of the Plaintiff, as his executrix ; that she was brought from Virginia secretly by a man who bad married her daughter, and disposed of by him to the Defendant : that they were demanded of the Defendant previous to the commencement of this action, who confessed he liad three, boys in his possession which were the children of that wench. This being all the evidence produced by the plaintiff, Mr. Moore, on'he part of the Defendant, moved, ¡hat the Plaintiff might be nonsuited, for want of the letters testamentary to prove the Plaintiff’s executorship and qualification. Et per curiam, after much argument, if an executor declare as executor, then in the declaration, at the end thereof, he makes a proffert of his letters testamentary to the Court, and then in contemplation of law. they are in Court during all that term, according to Wy mack’s case, in Coke’s Reports', and during that term, the Defendant may demand oyer of them, and on their being produced, may either deny them by plea, or by plea shew that they are invalid, as not being granted by the proper jurisdiction, or for other defects : or if the declaration does not set fort!» a proper jurisdiction for granting ihem, and they appear to be granted by the improper jurisdiction, he may demur ; but if oyer is not then craved, and advantage taken for want of the products,or for any defect in 'hem, but the party defendant pleads in chief, or any plea posterior in point of order to these, that question the plaintiff’s right to sue— t hen the letters are admitted,, and the Plaintiff at the end of the Ierra, may take tltem out of Court, and need not produce them any more. 'But where the executor (le-dares upon his own possession, and not as executor, then lie does not make a profert of the letters testamentary in his declaration, and the Defendant cannot crave oyer and take advantage of them, or for the not producing them before he pleads, as in the other cases — and therefore, in tills latter case, the Plaintiff must shew his right to recover on (ho trial, and this he cannot do but by shewing the property to be in him as executor; proof of which must be made by-shewing the letter's, and then the Defendant may contest them, not having before ad-mi tied them by pleading; and for this the Court cited Butler 48, 246, 108. kXels.M. 626. Hib. 38,218. Sulk. 37, 38. — ‘Mr. Williams, for the Plaintiff, liten offered a copy of the testator’s will, attested by the Clerk of the proper county, and his clerkship regularly certified by the presiding Justice, under the title of Chief Justice of that Court/ and at the end of this copy, it was also certified, that the Plaintiff had given bond according to law, and taken the oath, and had a certificate for obtaining the probate in due form, but she had not any letters testamentary to produce; and he insisted lie.had sufficiently proven the executorship of the Plaintiff, copy of the will shewing she was appointed executrix, and the Clerk’s certificate shewing she had taken upon herself the execution thereof; and that it was not the practico cither in Virginia or in this State, actually to take our letters testamentary; and even in England, where they are taken out, the executorship may he ¡tro-ven by a copy of the will and probate. - Buller 247, or the probate in the Register’s book. Buller 245, 246. But per curiam, it is a mistake to say, that letfers testamentary are not taken oat in this State and Virginia; they are often taken out when suits are to be commenced out of the state or county where (he testator resided. The Plaintiff’s executorship is to be ¡troven by testimony produced by himself, and the letters themselves must be produced, the issuing of them being the final act that makes him a complete legal executor. Until they issue, his executorship is inchoate and imperfect, and iu embryo only, liable, notwithstanding the intermediate acts, to be questioned, and all further progress stopped, if the executor could prove the letters to be lost, then perhaps he- might he admitted to a proof of the exeputorship by a probate or copy, or if the executorship were to be proven by a third person, thru perhaps such proof 'night be allowable ; or, under some circumstances, even proof’ Jess satisfactory. And this reconciles the cases cited from Buller 245, 246, and is proven to be the true doctrine by ¡be passage in tbe same book 108, where he cites 1 Liv. 25. Cro. Eli». 13, and the case of Lewis & Brag, Mich■ i6. Geo. 2. Therefore the proof offered in the present case is not sufficient, and she must produce the letters, unless she can prove them lost or destroyed by accident. Mr. Williams then saying he could not make, such proof, the Court recommended the withdrawing & juror; and a juror was withdrawn by consent.

Noth. — Vide Barry's adm’rs. v. Pulliam, ante 16.