text:
    CURRY vs. THE BANK OF MOBILE.
    1. The office of a demurrer to evidence, is to writhdrawfrom the jury, the consideration of the facts offered in evidence, to maintain the issue, which the jury were empanneled to try, and to refer them to the court. It is, in effect, the substitution of the court for the jury.
    2. The statute'autborising summary proceedings by the banks, . • in collecting claims due them, requires the court to empannel a jury to try the issue, wheie the claim is contested.
    3. Where the name of one of the endorsers of a note is similar to that of the maker, a presumption that the same person is both maker and endorser is not so violent, as to amount to prima facie evidence of the fact. If they were the signatures of the same”person, the fact might be easily proved.
    4. It seems, that where the protest of a note states, that payment of the note was demanded at the proper timo and at the proper place, and that it was protested for non-payment — it is sufficient, without stating from whom payment was demanded, or wh&t reply was given to the demand made.
    5. Where the protest states, “ that the endorsers have had due notice of the demand and non-payment, and protest of said note, by notice in writing, directed by me as follows: To the endorsers/’ and left at their officesit is sufficient; and an objection that the place where the notice was left, is not described, and that the notary decides that the place is the office of the endorser, will not be sustained.
    6. Notice of the dishonor of a note may be given on the same day the protest is made, and must be given on the next day, or placed in the post office, to be sent by the next mail.

      7. Where a notice is sent by mail to a distant post office, the place to which the letter containing the notice is directed, must be stated in the certificate of the notary.
    8. But where the parties live in the same town, and a notice is left at the place of business of the endorser, — it is sufficient to describe it as the office of the person so notified.
    9. The certificate of the notice by the notary, is prima facie evidence only of the fact recited; and if left at the wrong place, the fact may be controverted.
    10. The holder of a note or bill of exchange cannot be permitted by any act of his, to prejudice the right*of any party to the instrument, to whom he looks for payment.
    11. The deliberate cancellation by the holder, of an endorsement on a note, discharges the liability of such endorser to the holder, and so operating, it will also discharge from liability to the holder, the subsequent endorser.
    12. Thus — the holder of a note or bill of exchange, seeking to effect a recovery on such note against an endorser, cannot prejudice the right of such endorser, by striking out the name of a previous endorser, who would be liable to the last.
    13. Though, it seems, the situation pf the endorser, whose name is stricken out, might be explained — as, that he was an accommodation endorser, and not responsible to his immediate en-dorsee, in any -event.
    14. In cases where bank debtors are proceeded against summarily by notice, the judgment, whether by default or otherwise, must shew affirmatively every fact necessary to give the court jurisdiction ; and in judgments by default, the liability of the defendant for the debt must be also shewn.
    15. But where an issue is made up, the verdict ascertains the defendant’s liability, as in other cases.
    16. A notice in writing, which so far identifies the debt for which judgment will be moved, as to afford reasonable certainty, is sufficient.
    IT. A corporation can do an act in pais, by an attorney in fact; and so, an attorney, acting on behalf of a bank, may give the notice to a bank debtor, required by statute, previous to a motion for judgment.

      18, And such notice need not be under the seal of the corporation.
    19, The ancient rule applied to corporations existing by the common law, that they could only act by their common seal, has no application to corporations created by statute.
    Error to the Circuit court of Mobile.
    Bank notice, tried before Pickens, J.
    The following was the notice served on defendant:
    “The State of Alabama, Mobile county.

      uTo James Curry:

    “ Whereas you are indebted to the President, Directors & Company of the Bank of Mobile, by a promissory note, and as the endorser, by the name and description of James Curry & Co,, of the said note, a copy of which here follows, to wit:
    “‘|450. Mobile, 10 May, 1837.
    “ ‘Sixty days after date, I promise to pay Mr. A. H. Gazzam, or order, four hundred and fifty dollars, for value received, negotiable and payable at the Bank of Mobile. S. Roulston.’”
    “And whereas, the said note became due and payable on the 12th day of July, 1S37, and the sum of money therein specified has not been paid according to the tenor and effect thereof; by reason whereof, said note was duly protested for non-payment.
    “Now, therefore, you will take notice, that the said corporation, by their attorneys, will move for judgment against you, for the sum of money specified in said note, together with the interest thereon, and the award of execution thereon, at the present term of the Circuit court, now in session in the said county of Mobile,-and on the ninth Wednesday of said term.

      ' “ The sheriff of Mobile county will execute this notice. Issued 18 December, 1837.
    Gayle & Yandegraff, Bank Attorneys.”
    The notice was returned duly executed.
    “ I, William R. Hallet, President of the Bank of Mobile, do hereby certify, that the note, a copy of which is inserted in the foregoing notice, is now, and was at the time the same was protested for non-payment, really and bona fide the property of the said bank.
    “ Given under my hand, this 25th day of December, 1837. William R. Hallet, Pres’t.”
    “And now, at this day, to wit, at a Circuit court begun arid held, in and for the county of Mobile, at the court house thereof, on the second Monday after the fourth Monday of October, 1837 — on Saturday, the 13th day of January, 1837, being a day of said term, the following judgment was rendered in this cause, to wit:
    “Bank of Mobile vs. James Curry. — Debt.
    “This day came the parties, by their attorneys, and the defendant, by his attorney, demurs to the evidence in this cause, which demurrer being fully heard, it is considered by the court, that the said demurrer is not sufficient to bar or preclude the plaintiffs action, and that the law is for the plaintiffs: It is therefore considered by the court, that the plaintiffs recover of the defendant, the sum of 470 dollars damages, due by the promissory note in the plaintiffs notice mentioned, together with their costs, by them about their said motion in this behalf expended.
    The demurrer was as follows:
    The plaintiffs moved the court for judgment in this c ause, and produced to the court a note, as follows:

      “|450. Mobile, 10 May, 1837.
    “ Sixty days after date, I promise to pay Mr. A. H. Gazzam, or order, four hundred and fifty dollars, for value received, negotiable and payable at the Bank of Mobile. S. Roulston.”
    Upon the back of said note, were the following endorsements :
    “A. H. Gazzam.
    “S. Roulston.
    “James Cuiihy &• Co.
    “S. Roulston.”
    The plaintiff also produced a protest, which is as follows:
    “The State of Alabama, City and County of Mobile.
    “By this public instrument of protest,^be it known— that on this twelfth day of July, in the year of our Lord, one thousand eight hundred and thirty-seven, at the request of the Bank of Mobile, I, Charles A. Marston, notary public, in and for the city and county of Mobile, in the State of Alabama, duly commissioned and qualified by lawful authority, did produce and present the original note, (a true copy of which is -below written,) at the Bank of Mobile, and demanded payment thereof, according to the tenor and effect of said note, and received for reply from-.
    “ Whereupon, I, the said notary, at the request aforesaid, did make protest, and by these presents do solemnly protest, as well against the drawer thereof, as against all others, whom it doth or may concern, for all exchange, re-exchange, costs, damages, charges, interest or éxpences suffered, or to be suffered, for want of payment of the said note, being in words and figures, as follow, to-wit:
    “ |450. Mobile, 10 May, 1837.
    “ Sixty days after date, I promise to pay Mr. A. H. Gazzam, or order, four hundred and fifty dollars, for value received, negotiable and payable at the Bank of Mobile. S. Roulston.”
    Endorsed on the back—
    “ A. H. Gazzam.
    ” “ S. Roulston.
    “James Curry & Co.
    “ S. Roulston.
    “And be it further known, that I, Charles A. Marston, notary aforesaid, do further certify, that the endorsers have had due notice of the demand and non-payment, and protest of said note, by notice in writing, directed by me as follows: c To the endorsers — and left at their offices.’ Thus done and protested at Mobile, oh the day and year first above written.
    “ In testimony whereof, I have hereunto set my hand, and affixed my notarial seal, at Mobile, on the 12th day of July, in the year of our Lord, one thousand eight hundred and thirty-seven. Charles A. Marston,
    Notary Public.”
    [Notarial Seal.]
    Upon the above proof, the plaintiffs moved the court for judgment, and produced the notice, with the certificate of the President of the Bank, endorsed thereon: whereupon the defendant objected to the rendition of the judgment, and stated to the court, that he would demur to the evidence: whereupon the plaintiffs, notwithstanding 'the objection of defendant, (who denied the right of the plaintiffs to do so,) did strike out the name of S. Roulston, on the hack of said note, so as to make the endorsement of said note read thus:
    A. H. Gazzam.

    James Curry & Co.
    S. Roulston.
    And then submitted the said note, with the erasure of said endorsement.
    And thereupon the said defendant prays judgment in his favor in said cause, on the proof presented to the court* because he says that the same is not sufficient in law to authorise the rendering of judgment against him, and that the defendant is not bound by the law of the land to answer the same: and this he is ready to verify— wherefore he prays judgment.
    And thereupon,11 the said plaintiffs do aver and maintain, that the said evidence is sufficient in law to entitle them to judgment in this behalf, and they do therefore join in said demurrer, and pray that the court may render judgment for the plaintiffs in this behalf.
    The plaintiff's joined in'demurrer.
    Gayle, for plaintiffs in error.

      Stewart, contra. ■
   ORMOND, J.

— The questions of law which are made in this case, arise on a judgment obtained by the the defendant in error, against the plaintiffs in error, on motion upon what is called in the record, a demurrer to the evidence.

The errors assigned are—

1. That the notice is not such as is required by law, being by the attorney at law of the bank, and not under the corporate seal.

2. The court erred in overruling the demurrer to the evidence.

The last assignment of error will be first considered^

It is impossible to consider the demurrer in this case, a demurrer to evidence. The office of a demurrer to evidence, is to withdraw from the jury the consideration of the facts offered in evidence, to maintain the issue which the jury were empanneled to try, and to refer them to the court. It is, in effect, the substitution of the court for the jury.

The statute under which this proceeding is had, requires the court, if the claim is contested, to empannel a jury to try the issue between the parties.' But in this case, it does not appear from the record, that any issue was tendered, or that a jury was empanneled. There could not, therefore, be a demurrer to the evidence.

As, however, the act upon which this proceeding was had, authorised the court to render judgment without the intervention of a jury, we may consider the statement of facts which appears in the record, as an agreement of record of the facts upon which the judgment of the court was pronounced, and thus give effect to what appears to have been the intention of the parties, by what is called in the record, a demurrer to evidence.

The facts thus set out, are the note on wlfich the motion is founded, with the endorsements thereon, and the protest of the notary for the non-payment of the note. The record then proceeds to state, that “ upon the above proof, the plaintiff moved the court for judgment, and produced the notice, with the certificate of the president of the bank endorsed thereon.” It further appears, that the court permitted the plaintiffs below to strike out the endorsement of S. Roulston, it being the second endorsement, and preceding that of the defendant below, though objected to by him.

The sufficiency of this evidence to maintain the action, and also the right of the plaintiffs below to strike out an endorsement previous to that of the plaintiffs in error, 'will now be considered.

The note on which the motion is founded, is made by S. Roulston, and is payable to the order of A. H. Gazzam. It appears to have been endorsed by A. H. Gazzam, S. Roulston, James Curry Co. and S. Roulston.

It is insisted by the plaintiffs’ counsel, that S. Roulston, the endorser, is the same person as S. Roulston, the maker; that therefore, the note, after having been put in circulation by the endorsement of Gazzam, must have become the property of Roulston, the maker; which he contends was in law an extinguishment, and that the note could not afterwards be put in circulation.

The only evidence that this assumption is correct, is the similarity of the two names, and we do not think this of itself sufficient. It might certainly lead to a suspicion, that the two names indicated the same person, but it does not, in our opinion, amount to such a violent presumption, as to be prima fade evidence of the fact. It is also open to the objection, that it is not the best evidence in the power of the party to adduce. If they be in fact, the signature of the same person, nothing could have been easier than to have proved it beyond doubt; whereas, in the aspect in which the question is now presented, the only evidence of their .being the signature of the same person, is, that the two names are spelled alike. Such remote analogies are too uncertain to be the foun-’* dation of a judgment, especially in a case where better evidence could have been had.

The objection, therefore, that the note was extinguished, by becoming the property of the maker, and that it could not again be put in circulation, does not arise in this case; and for that reason we refrain from expressing any opinion on that question, as also because we are informed that this point will directly arise in other cases now pending.

Jt is also contended by the plaintiffs’ counsel, that the protest does not state from whom payment was demanded, nor what was the reply .to the demand made; and that for that reason, it is insufficient. The protest states, that payment of the note was demanded at the proper time and at the proper place, ancl that it was protested for non-payment, which could not have been done, if the payment had npt been refused, or neglected to be made.

It is also insisted, that the certificate of the notary, that he had given notice to the other, parties to the note, is insufficient. The certificate is in these words: “ I, Charles .A. Marston, notary as aforesaid,' do further certify, that the endorsers have had due notice of the demand and non-payment, and protest of said note, by notice in writing, directed by me as follows: ‘ To the endorsers — and left at their offices.’” It is supposed, that the notice being given on the day the note was protested, was given too soon; but if is well settled, that notice of the dishonor of a note may be given on the same day the protest is made, and must be given on the next day, or placed in the post office, to be sent by the next mail, in the ordinary course of business.

The language used by the notary, in setting forth that he had given notice to the endorsers,, has also been objected to; but we do not think it obnoxious to the criticism-which has been made on it. He says that he gave notice in writing, of the demand, non-payment and protest, to the endorsers, “ and left at their offices.” It is objected, that he should have described the place where the notices were left, without undertaking to decide whether the place was the office of the person so notified or not.

If the notice had been sent by mail to a distant post office, it would certainly have been necessary for the notary to have stated the place to which the letter, containing the notice, was directed. But where, as in this case, the parties living in the same town, a notice is left at the place of business of the individual, it is sufficient to describe it as the office of the person so notified.

The certificate of the notice which the notary is au-thorised to make, was designed by the statute to be pri-ma facie evidence only of the fact recited; and if the notary leave the notice at the wrong place, the fact may be controverted, notwithstanding he may have certified that it was properly left. There is, therefore, no objection to the protest.

The court below permitted the defendant in error to strike out the name of the second endorser, (S. Roulston,) though objected to by the plaintiff in error.

In this, the court erred. The holder of a note ór bill of exchange, cannot be permitted by any act of his, to prejudice the right of any party to the instrument, to whom he looks for payment. If a recovery could be had on this note, against the plaintiff in error, as endorser, he would have a right of action against his immediate endorser; and it is very clear,- that the holder cannot impair or abridge this- right. The holder has property in the note, and dominion over it,- and may release any or all the parties to it; but he cannot be allowed to exercise this privilege, to the prejudice of another’s right. The same rule which obtains in favor of a surety, when the creditor, by arrangement with the principal debtor, without the consent of-the surety, prolongs the time of payment, or changes the nature of the contract, applies to the discharge of a prior endorser. The deliberate cancellation, by the holder of the endorsement, must-discharge the liability of such endorser to the holder, and so operating, it will also discharge from liabilty to the holder, the subsequent endorser. ■

These principles are fully maintained in the following cases—(Brown vs. Williams, 4 Wendell’s R. 360; James Lynch vs. Reynolds, 16 Johns. R. 41; Sargent vs. Appleton, 6 Mass. R. 88; English vs. Dailey, 3 Espinassie’s R. 49.)

It may be, that the endorsement of S. Roulston is open to explanation. He may be an accommodation endorser, for the plaintiff in error, and not responsible to him in any event; or, the name of S. Roulston may be on the paper, - not strictly as endorser, but to indicate to the bank discounting the paper, his ownership of the note. But nothing of that kind appears in the record, and we must judge of the legal effect of the endorsement, from the predicament of the record, as presented to us. These remarks are made, to prevent any conclusion from being drawn, which the opinion is not intended to warrant.

The record further states, that 'the plaintiff in error “ produced the notice, with the certificate of the president of the bank endorsed thereon;” whereupon the defendant, by his counsel, objected, &c. The notice and certificate here recited to have been produced, must, we think, be taken to refer to the notice and certificate, which are sent up with the transcript, and, by reference to them, we find them to be sufficient.

In the case of Bates vs. the Planters' and Merchants’ Bank, (page 99,) to which we have been referred, there was no recital in the judgment, that either the certificate or notice were produced to the court; and we there held, that we could not infer that the notice and certificate sent up with the transcript, were those on which the court acted, as it did not appear that any notice or certificate had been produced to the court, or any action of the court had upon them. But we held, that appearing and contesting the claim, was evidence of notice.

In cases of this summary character, the judgment, whether by default or otherwise, must shew affirmatively every fact necessary to give the court the summary jurisdiction. In judgments by default, the liability of the defendant for the debt, must also be shewn. Where an issue is made up, the verdict will ascertain the defendant’s liability, as in other cases, in suits brought in the ordinary mode; and it is unnecessary to encumber the record either with the proof or fact of notice, or of those facts which constitute the liability for the debt. Should either party desire to reserve the legal sufficiency of the facts, it can be done by bill of exceptions, or by demurrer to the evidence. As to the terms of the notice required by the statutes in these summary proceedings, the law was correctly laid down by the court in the case of Lyon vs. the State Bank, (1 Stewart, 466.) “A notice in writing, which so far identifies the debt for which judgment will be moved, as to afford reasonable certainty, is deemed sufficient.”

We are induced to give this as the result of all the adjudged cases, on the statutes authorising these summary proceedings, from the great number of suits instituted in this mode since the increase of the banking capital of the State, and the uncertainty which seems to prevail on the subject.

The first assignment of error is not sustained. The objection to the notice is understood to be rested by counsel, on the terms of the charter of the bank; the substance of which, so far as it relates to this question, is, that the corporation may recover their debts in this summary mode, by giving ten days notice, &c.

It is contended, that as the charter of the bank requires the corporation to give notice, it cannot be done by the attorney at law of the corporation. It cannot be doubted, that a corporation can do an act in pais, by an attorney in. fact; and we can see no reason why the notice, which is but the commencement of a suit in this summary mode, should not be given by the attorney at law of the corporation, acting for, and on behalf of the corporation. A corporation can appear in court, by its attorney ; and it would be passing strange, if the attorney had not power to take the'first step in the cause.

In the case of Osborne vs. the United States Bank, (9 Wheaton, 738,) it was held, that the authority of the attorney to appear in court, need not be under the corporate seal; and in the case of the Bank at Montgomery vs. Harrison, (2 Porter, 540,) that the notice required by the charter of the bank to obtain a" judgment by motion, did not require the corporate seal to give it authenticity.

The ancient rule applied to corporations existing by the common' law, that they could only act through their common seal, has no application when applied to corporations created by statute. The very frame of our banking institutions supposes that their acts will be done by agents, and it would be intolerable, if not impossible, to require their authentication by the seal of the corporation.

For the error of the court below, in permitting the defendant in error to strike out the name of S. Roulston, (who appears on the record, as second endorser of the note,) without explanation, or any sufficient reason being given therefor, — the judgment is reversed, and the cause remanded, for further proceedings in the court below.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    LISTER vs. VIVIAN et al.
    1. The records of a court of limited jurisdiction, should discover every fact essential to the validity of its sentences, — -therefore,
    2. To enable the Supreme court to review a case under the act of eighteen hundred and thirty-three, (Aik. Dig. 253,) where commissioners had been appointed, by a judge of the Circuit court, to settle the estate of a decedent, the judge of the Orphan’s court being interested, — the commission issued by the judge of the Circuit court should appear of record.
    3. Its existence and legality cannot be supplied by intendment, or by a recital in the minutes of the clerk of the County court, or the report of the commissioners.
    4. And the report of two of the commissioners, is not a decree revisable in error, and an execution issued on such a report of commissioners, may be quashed on motion.
    Error to the County court of Washington.
    Proceedings by commissioners appointed in lieu of the. Orphan’s court, where the judge was interested. Execution issued against plaintiff in error.
    The record recited, that John James, Joseph Black and John H. Owen, were appointed commissioners by “ the circuit judge, to settle the estate of the late Charles Yivi-an, with Joseph D. Lister, esquire, administrator of said estate, and judge of the County court of Washington county.” And further, “ that at an adjourned term of an Orphan’s court, held in and for said county, on the twenty-second day of January, in the year of our Lord, eighteen hundred and thirty-five, by Messrs. John James, Joseph Black and John H. Owen, the two former present —the latter absent — the aforesaid commissioners examined the charges and statements, and all matters relative to the estate of the late Charles Vivian, deceased, wherein the honorable Josiah D. Lister, administrator thereof, was concerned, and made an estimate, of what to them appeared, from all the evidence before them, to be just; which said report was ordered to be filed.”
    The report then set forth the amounts and dates of a number of notes, made by different individuals, which, with interest, amounted to more than eight thousand dollars. It also contained a charge for the hire of negroes, which, with interest, amounted to near one thousand dollars. Then follows an affidavit, in these words :
    “The State of Alabama, Washington county.
    “ Personally came before me, William Grimes, clerk of the County court of said county, Messrs. John James and Joseph Black, commissioners appointed by the honorable the judge of the Circuit court, to make settlement of the estate of Charles Vivian, deceased, with Josiah D. Lister, administrator thereof; have examined the said case, to the best of our abilities, and make our report thereupon, as appears on this sheet. Sworn to and subscribed before me, this 22d day of January, A. D. 1835.
    “ Wm. Grimes, Cl’k. “John James,
    “Joseph Black.”
    This is an abstract of so much of the record, as relates to the appointment of the commissioners, the settlement, and their report. And on this, the clerk of the County court issued an execution for the aggregate sum with which the plaintiff is charged by the settlement. Upon the supposition that the record discovers a final order or decree, a writ of error is prosecuted to this court.

      Gayle, for plaintiff in error.

      Porter, contra.
   COLLIER, C. J.

— The authority of the commissioners to adjust the administration accounts of the plaintiff, it is said is founded on the order of the judge of the Circuit court, and the right of the judge of the Circuit court to appoint them, is deduced from the first section of the act of eighteen hundred and thirty-three, (Aik. Dig. p. 253, s. 41,) which is as follows:

“ In all settlements hereafter to be made by executors, administrators or guardians, with the Orphan’s court, in which the judge of said court may have been employed as counsel, or may be otherwise interested in such settlement, it shall be the duty of said judge to give immediate information of the fact to one of the judges of the Supreme or Circuit courts, who shall thereupon issue a commission to three persons of the proper county, directing and empowering them to proceed to make such settlement under the rules and regulations now prescribed by law.”

Without pretending to decide whether a majority of the commissioners directed by the act to be appointed, are competent, independent of the co-operation of the third, to make a settlement, we are clear that the commission issued by the judge of the Circuit court should appear of record. This commission is a special authority, and the only warrant for the acts of the commissioners. Its existence and legality cannot be supplied by intendment, or by a recital in the minutes of the clerk of the County court, or the report of the commissioners; but the paper itself must appear, that it may be seen whether it furnishes a warrant for the apts done under its authority. This conclusion is too clear to require further illustration. It is fully sustained by the rule that requires' the records of a court of limited jurisdiction, to disclose every fact essential to the validity of its sentences.

The report floes not, fix a liability upon the plaintiff, even according to the most unfavorable interpretation of its terms, unless it be for so much as relates to the negro hire. It may be true, that the plaintiff, as administrator of his intestate, received all the notes mentioned in the report, and yet not be chargeable for their nominal amount in money. To be personally liable, it should have been shown, either that lie had collected or appropriated them to his own use, or else that they were lost by his neglect, &c.

But, apart from all these objections to the proceedings of the commissioners, they afford no warrant for an execution. The statute which gives an execution on the decrees of the Orphan’s court, enacts that “all decrees made by the Orphan's court, on final settlements on the accounts of executors, administrators and guardians, shall have the force and effect of judgments at law, and executions may issue thereon for the collection of the several distributive amounts agaiust such executor, administrator or guardian”—(Aik. Dig. p. 252, s. 37.)

There can be no pretence for saying, that in the case at bar a decree was rendered. There is nothing, as we have already shown, but a very imperfect settlement, reported by two of the commissioners. The act of eighteen hundred and thirty-three does not expressly authorise the rendition of a decree in such a case, so that it may well be questioned whether the judge of a county court, as an executor, administrator or guardian, is authorised to render a decree in his favor, or may be required to render one against' himself, (and perhaps it is not clear that the commissioners can consummate their settlement by a decree.) There, then, being no basis for an execution, it issued improperly: and had the judge of the óounty court been competent to entertain jurisdiction, it should have been superseded, and quashed on motion. Yet, notwithstanding the irregularity of the execution, we cannot entertain the case, because there is no such order or decree, as is revisable on error.

We have been thus particular, that a guide may be afforded to ulterior action. It remains but to declare, that the- writ of error must be dismissed.


text:
    LEAVENS vs. BUTLER et ux.
    1. In the construction of wills, the controlling rule is, that the court must, if practicable, ascertain the meaning of the testator.
    2. In the exposition of a will, every part must be consulted: each word is to have its effect, if it be possible, without thwarting the general intent.
    3. A codicil is a part of a will, and is to be construed with it: and may, as a context, confirm, vary, or altogether change an intention expressed in the body of the will.
    4. Neither the common or statute law give to an executor virtute officii, a fight to the possession, of the testator’s lands : — if they are devised, they pass by the will to the devisee, who has a right to entry and possession; if undevised, they descend to the heir, who is entitled to possession.
    5. If the real estate is wanting to pay debts, the executor may obtain an order for the sale of so much as is necessary; and the right to sell in such a case is á naked power, and cannot be defeated by alienation or disseisin.
    6. Where power is given by a will to sell lands, it does not. require, in order to its validity, the co-operation of all the executors named — the power is attached to the cffic ■, and one executor, who has alone qualified, possesses all the power conferred by the will. ■
    7. Where a testator intends that the payment of legacies shall be expedited or delayed — his intention must be followed as nearly as possible.
    8. Payment of debts takes precedence of legacies, and a legacy will not, in general, be paid, where the assets will be required to pay debts.
    9. Butin case of a contingent debt, a legatee will be entitled to the assets, on giving security to refund, — if the debt become absolute.

      10. Where it is obvious that it will be necessary for a legatee to refund, in order to pay debts; or where the will postpones the payment of the legacy to a distant time; or if the payment would defeat the testator’s intention — the legatee cannot claim it.
    11. Where an executor voluntarily answers interrogatories which, he could not be compelled to answer — the answers will be regarded as evidence de bene esse.

      12. The jurisdiction of the County court, in the adjustment of the estates of deceased persons, is limited — depending upon legislative grants in its favor: — but where the County court is incompetent, the powers of chancery are adequate to the emergency.
    13. Executors and administrators, are in almost every respect, considered in equity as trustees.
    14. A legatee may sue in equity for the recovery of his legacy; and if a settlement of the estate be necessary, all the parties whose rights are to be effected, or from whom a discovery is desired, may be brought before the court.
    15. [According to the English practice, where a will relates to lands only, it ought not.to be proved in the spiritual court— but if it embraces personal property also, it ought to be proved there.]
    16. [Courts of Equity in England have concurrent jurisdiction with the spiritual courts, for the recovery of personal legacies, in all eases; and in some cases, the jurisdiction of chancery is exclusive.]
    17. [In the English chancery, where the civil law is followed, proceedings for the recovery of legacies may be instituted at any time after the expiration of twelve months from the testator’s death.]
    18. The County court cannot decree distribution of an estate against an executor, where, by so doing, the testator’s intention would be defeated.
    19. A legatee cannot in this State, in all cases, immediately after the expiration of eighteen months from the grant of letters •testamentary, coerce a payment of his legacy.
    20. The County court has no jurisdiction over the lands of a testator, without the limits of this State.
    Error to the County court of Mobile.
    Proceedings against an executor.
    . On the thirtieth day of March, eighteen hundred and thirty-five, Joshua B. Leavens, then of the city of Mobile, made and published his last will and testament, by which, after making an appropriate provision for his funeral, he proceeded as follows: “It is also my will, that my executors hereinafter named, should effectually, and to all intents and purposes, protect, indemnify, and save harmless all the other partners of the firm of St. John & Leavens, against any actual, or contingent liability, loss or injury, imposed upon them, or either of them, by me, in consequence of having assumed the responsibility to lend the name of the said firm of St. John & Leavens, either as drawers, endorsers or securities, for Benjamin Leavens, or the firm of O. Irby & Co.: and also, that they may be protected against any proportion of loss, which may grow out of the loan of money by mb, in the name of the said firm of St. John & Leavens, to the said Benjamin Leavens, or the said firm of C. Irby & Co.”
    The testator then devised and bequeathed one fourth-of his estate,, both real and personal, to the plaintiff — an equal portion to his sister, Susan Leavens, and the rest and residue of his estate, to his daughter, Helen Naomi, to be paid to his brother Benjamin, and sister Susan, until his daughter should attain the • age of majority, or should marry, in either of which events, the same was directed to be paid to her. And Benjamin and Susan Leavens were, by the will, appointed guardians and protectors of Helen Naomi.
    On the third day of May, eighteen hundred and thirty-five, the testator declared and published a codicil to his will, in which he refered to, and expressly confirmed and adopted the same. And, in addition, inserted a clause, as follows: “Ido hereby declare and direct, and do give full power and authority, to my said executors, or the survivor of them, and they shall have power, whenever and from time to time as they may think expedient, and according to their discretion, to bargain and sell, convey, lease, release or encumber, or otherwise dispose of, in fee or otherwise, all or any of my real estate, wherever the same .may be situate, either for the purpose of paying debts, making division or distribution — or when they shall think it beneficial for any purpose to do so-, in which case, the proceeds shall be distributed, kept or applied, as the property is required to be by my said will. The true intent and meaning of this codicil being fully to affirm the dispositions of my said will, and the better to enable my executors to carry it into effect, and the better to enable them to place the said property in such a situation, as may be convenient, and more beneficial and profitable — and by giving the power to sell and convey lands, to enable them the more conveniently to benefit all parties interested in the bequests thereof.”
    The testator appointed by his will, Benjamin Leavens and Joseph E. Sheffield, his executors; and shorty after died.
    On the eighth day of July, eighteen hundred and thirty-five. the plaintiff in error, one of the executors named, produced the will and codicil, and having proved the due execution of each, and given bond, and taken the oatli thereto required by law, received from the County court of Mobile, letters testamentary, authorising him to execute the same.
    And afterwards, on the twenty-fourth day of February, eighteen hundred and thirty-eight, the defendants in error, exhibited their petition to the judge of the County court of Mobile, setting forth the marriage of Thomas J. Butler with Helen Naomi, the daughter of the testator,— the grant of letters testamentary to the plaintiff — the expiration of more than eighteen months since that time— the neglect of the plaintiff to settle his accounts, and make distribution of the estate. The petition thereupon prayed, “ that said executor, Benjamin Leavens, be required to make settlement as the law provides, of his executorship of said estate, and also to make distribution of the same, and to pay over and deliver to your petitioners, the one full half of the property and nett proceeds of said estate, according to the provisions of said will, and of the statutes of distribution in such cases made and' provided.”
    The petition concluded, by praying that citation, and all other necessary process might issue, &c. And being verified by the petitioner, Thomas J. Butler, an order was made upon the petition, requiring the issuance of a citation, returnable on a day named in the order.— Whereupon a citation was issued, and served on the plaintiff in "error, requiring him to appear before the judge of the County court of Mobile, on a day therein state l, “ and shew cause why a settlement of the affairs of the estate of his testator should not be made, and to render an account of his administration thereof; and further, to shew cause why distribution should not be made of said estate, under the provistas of the will, and the distributive share of the petitioners paid over to them, and further to do and receive, abidé and perform whatever decree or order the court might make in the premises.”
    The plaintiff in error, appeared in the County court, and filed an answer on oath, professing to disclose, to some extent, the condition of the estate of his testator, and-assigning reasons why the same could not be settled, and the petitioners’ interest, under the will, assigned to them.
    The defendants in error stated upon the record, certain exceptions to the plaintiff’s answer, and exhibited a number of interrogatories, touching the affairs of the estate, and the plaintiff’s administration of the same, which he severally auswered on oath.
    These answers denied that the debts of the testator had all been paid, and stated that Samuel St. John, juni- or, surviving partner of the testator, had rendered an ac count against his estate, amounting to one hundred and ninety-seven thousand, seven hundred and fifty dollars, eighteen cents. That the account with which the estate was charged for C. Irby & Co., as presented, amounted to forty-two thousand, eight hundred and fifty-five dollars, twenty-one cents. In addition to which, the contingent liabilities of the testator’s estate, on account of C. Irby & Co. amounted to the sum of about ninety-eight thousand dollars. The plaintiff did not know what might be due' into effect his intention. In the exposition of a will, regard is not to be had exclusively to a particular clause or clauses, but every part of It must be cónsnlted — each word is to have its effect, if this be possible without thwarting the general intent. The testator is not to be supposed to have used language, without having some definite meaning in view; and the rule is not to reject words, unless there cannot be a rational interpretation of them as they stand — (Ward on Legacies, 194, et post, and cases there cited; 18 L. Lib.; Capel et al. by their guardian vs. McMillan, and cases there cited, S. C. of Ala. June, 1838; 1 Yeates’ Rep. 45, 319, 342, 432, 518; Ram on Wills, 1, 2, 31, 45, 64, 98, 100, and cases there cited; 8 L. Lib.; Cook et al. vs. Holmes, 11 Mass. Rep. 528.)
    A codicil is a part of a will. It is therefore to be construed with it, and may, as a context, confirm, vary, or altogether change an intention expressed in the body of the will — (Ward on Legacies, 194, Ram on Wills, 263.)
    The testator declares by his will, the intention most clearly, that his debts shall be paid by his executors. In addition to which, he specially directs that his executors should effectually, and to ail intents and purposes, protect, indemnify, and save harmless, all the other partners of the firm of St. John <fc Leavens, against any actual or contingent liability, loss or injury imposed upon them, or either of them, by him, in consequence of his having assumed upon himself to lend the name of the firm of .St. John & Leavens, either as drawers, endorsers or securities, for Benjamin Leavens, or the firm of C. Irby & Co. The will further provides, that the other partners of St.
      Btated, “ and shew cause why a settlement of the affairs of the estate of his testator should not he made, and to render an account of his administration thereof; and further, to shew cause why distribution should not be made of said estate, under the provisions of the will, and the distributive share of the petitioners paid over to them, and further to do and receive, abide and perform whatever decree or order the court might make in the premises.”
    The plaintiff in error, appeared in the County court, and filed an answer on oath, professing to disclose, to some extent, the condition of the estate of his testator, and assigning reasons why the same could not be settled, and the petitioners’ interest, under the will, assigned to them.
    The defendants in error stated upon the record, certain exceptions to the plaintiff’s answer, and exhibited a number of interrogatories, touching the affairs of the estate, and the plaintiff’s administration of the same, which he severally answered on oath.
    These answers denied that the debts of the testator' had all been paid, and stated that Samuel St. John, juni-- or, surviving partner of the testator, had rendered an ac count against his estate, amounting to one hundred and ninety-seven thousand, seven hundred and fifty dollars, eighteen cents. That the account with which the estate was charged for C. Irby &. Co., as presented, amounted to forty-two thousand, eight hundred and fifty-five dollars, twenty-one cents. In addition to which, the contingent liabilities of the testator’s estate, on account of C. Irby & Co. amounted to the sum of about ninety-eight thousand dollars. The plaintiff did not know what might be due into effect his intention. In the exposition of a will, regard is not to be had exclusively to a particular clause or clauses, but every part of it must be consulted — each word is to have its effect, if this be possible without thwarting the general*intent. The testator is not to be supposed to have used language, without having some definite meaning in view; and the rule is not to reject-words, unless there cannot be a rational interpretation of them as they stand — -(Ward on Legacies, 194, et post, and cases there cited ; ■ 18 L. Lib.; Capel et al. by their guardian vs. McMillan, and cases there cited, S. C. of Ala. June, 1833; 1 Yeates’ Rep. 45, 319, 342, 432, 518; Ram on Wills, 1, 2, 3i, 45, 64, 98, 100, and cases there cited ; 8 L. Lib.; Cook et al. vs. l-Iolmes, 11 Mass. Rep. 528.)
    A codicil is a part of a will. It is therefore to be construed with it, and may, as a context, confirm, vary, or altogether change an intention-expressed in the body bf the will — (Ward on Legacies, 194, Ram on Wills, 263.)
    The testator declares by his will, the intention most clearly, that his debts shall be paid by his executors. In addition to which, he specially directs that his executors should effectually, and to all intents and purposes, protect, indemnify, and save harmless, all the other partners o.f the firm of St. John & Leavens, against any actual or contingent liability, loss or injury imposed upon them, or either of them, by him, in consequénce of his having assumed upon himself to lend the name of the firm of St, John & Leavens, either as drawers, endorsers or securities, for Benjamin Leavens, or the firm of C. Irby & Co. The will further provides, that the other partners of St. John & Leavens; shall he protected against their proportion of loss, which may be occasioned by the loan of money by the testator, in the name of the firm of St. John & Leavens, to Benjamin Leavens, or C. Irby & Co.
    And the testator, as if willing to confer the fullest power upon his executors, compatible with the nature of the trust, by the codicil to his will, invests them, or the survivor of them, with authority from time to time, according to their discretion, to bargain and sell, convey, lease, release ov incumber all or any part of his real estate, wherever the same may be situate, either for the purpose of paying debts, making division or distribution, or when they shall think it beneficial, for any purpose to do so.
    The will and codicil taken together, in additipn to. making the executors trustees of the testator’s estate, au-thorises them, without obtaining a special order of court, to sell, or otherwise dispose of the real estate of the testator, whenever, in their judgment, it may be proper, Here is a trust and a power united, both of which are more extensive than those conferred upon an executor, 'either by common or statute law — (Steele et al. vs. Wor-thington, 1 Ohio R. 358.) Neither of these'sources of authority give to an executor virtuta ojjicii, a right to the possession of the testator’s lands. If the lands are devised, they pass by the will to the devisee, who has the right of entry and-possession — and if un'devised, they descend to the heirs, who are entitled to the possession. If the real estate is wanted to pay the debts of the tes-i; . * tator, the executor may obtain an order for the sale of so much as is necessary, though it be in the possession the testator’s estate, as devised and bequeathed to his daughter, Helen Naomi.
    The right of the defendants, is asserted under the following statutory provisions:
    “ Sec. 13. Any person entitled to the distribution of an intestate’s estate, may, at any time after the expiration of eighteen months from granting the letters of administration, petition the County court, setting forth his claim, whereupon it shall be the duty of said court, to grant a rule on the'administrator, administratrix, or administrators, (as the case may be,) to make the distribution agreeably to law; but no administrator, administratrix’ or administrators, shall be compelled to make distribution at any time, until bond and security be given by the person entitled to distribution, to refund a due proportion of any debts or demands, which may afterwards appear against the intestate, and the co'sts attendant on the recovery of such debt.
    “ Sec. 14. Any person entitled to a legacy, or any estate by will, shall be entitled to the provisions of the foregoing section, as in case of administrators: Provided, That nothing herein contained shall be so construed, as to compel any distributee to give bond and security as aforesaid, for his or her distribution of the estate of any intestate, after a final settlement shall have been made by the administrator or administratrix” — -(Aik. Dig. 155.)
    The statute, according to its letter, would require a rule to be made on an executor, to make distribution and division, but the nature of the thing required to be done, forbids that the act should receive a literal interpretation, by making the rule mandatory in its terms. It i« obvious, that the initiatory step to be taken by the court, is nothing more than a summons to the executor, requiring him to show cause why a distribution and division should not be made conformably to the directions of the will. And so the act seems to have been understood by the County court — for the rule that issued, was a mere citation to appear and show causé. : ' "
    We think that after the expiration of eighteen months 'from the grant of letters testamentary, the devisees and legatees are prima facie entitled to have set apart their respective portions of the-testator’s estate, as devised and bequeathed by his will, yet, that this right is absolute in all cases, cannot be admitted — it cannot be alloioed to defeat the testator'1s intention, as expressed in, or inferrable from, a just interpretation of his will.

    We need not consider, in the present case, in what manner the plaintiff should have shown cause against the rule. The defendants themselves, with the assent of the court, exhibited interrogatories in regard to the testator’s estate, which they required the executor specifically to answer. Whether the County court possessed the authority thus to compel the executor to. make a discovery on oath, does not now arise. The executor answered voluntarily, and his answers must be regarded as evidence, for the purposes at least of this proceeding. From these, we learn that the-debts of the testator are not yet paid, and that the surviving partners of St. John Leavens, are not saved harmless, or relieved from liability to pay money, in consequence of the testator having lent the name of the linn, in aid of the credit of C. Irby & Co.

      Let i't b.e granted, that the plaintiff has been neglectful of his duties, in not having paid the debts provided for by the will, and yet the proceeding in the County court cannot be maintained. If. the estate of the testator was wrested from the executor, and divided among the devi-sees and legatees, how could he save harmless the surviving partners of St. John & Leavens? It has been answered, that the plaintiff himself was a member of the firm of C. Irby & Co., and that the one fourth of the estate to which he >is entitled, is first chargeable for the defaults of that firm. Upon the concession that this assumption is correct in law, it may be asked, how are we to know that the interest of the plaintiff will be sufficient to pay the debts of the testator’s estate? The demands nominally largely exceed that proportion, and though perhaps they are to a great extent unjust, yet their amounts are unascertained, so as to have enabled the County court to say what was due;
    The power to sell the lands, in order to its valid execution, does not require the co-operation of both the individuals named as executors in the will. It is attached to the office; and though the plaintiff in error has alone qualified, he possesses all the power conferred by the will in this particular — (Taylor & Morgan vs. Galloway et al. 1 Ohio Rep. 104; Lessee of Lloyd vs. Taylor, 1 Yeates’ Rep. 422.)
    In this view of the case, (and it is clearly authorised by the record,) would not the testator’s intention most probably be defeated, if his estate was now divided between the beneficiaries under his will? "His surviving partners might be sued, and. recoveries had against them for debts, which ho liad invested liis executors with ample authority, as well as means, to pay, as soon as they were advised of their existence, and the partners he thus left to seek their reimbursement by a course of protracted litigation — (Riddle & Co. vs. Mandeville, 5 Cran. R.^30.)
    The period prescribed by the civil law, and which is followed in the English court of chancery, where the will does not prescribe an earlier or later time, is to allow proceedings to be instituted for the recovery of legacies, at any time after the expiration of twelve months from the testator’s death. This allowance is not, however, regarded as a positive rule, but merely intended for convenience, that the debts of the testator may be ascertained, and the executors be informed of the amount of the assets. If, therefore, the situation of the estate be such as to enable the executors to pay the legacies within the year, they are not restrained by law from doing so. Lord Redesdale held, if a case was produced, in which it was quite clear that there were no debts, the court would give the fund to the legatee, though the twelve months had not elapsed — (Pearson vs. Pearson, 1 Scho. & Lefr. Rep. 12; To S. P. Garthsliore vs. Chalie, 10 Yesey’s R. 13.)
    But if it can be collected from the will, that the testator intended the payment of the legacy should be expedited or delayed, the intention of the.testator must be followed as near as possible — (Ward on Legacies, 287; 2 Williams on Ex’ors, 854,855; 1 Roper on Legacies, 579.)

      Again: — Tire payment of the debts will claim precedence of the legacies, and the court will not,' in general, order legacies to be paid, where it appears that the assets will be required to pay debts — (1 Roper on Leg. 316, 579, 588; Ward on Leg. 369; 2 Williams on Ex’rs, 652, 830.)
    It was at one time a much mooted question, whether aii executor could retain a sufficiency of the assets to satisfy a contingent debt, but it is now settled, that, the legatee will be entitled to it, on giving security to refund, should the debt become absolute; or he may have it paid into court for its better security — (Ward on Leg. 379, and cases cited; 2 Williams on Ex’ors, 830, 835, and cases cited 0
    Thus, we learn, that a legatee is not, under all circumstances, according to the English rule, entitled to be paid his legacy immediately after the year. If it is obvious that it will be necessary for him to refund, in order to pay the debts of the estate, or if the will itself puts off the payment to a distant time: or if the payment would defeat the testator’s intention, the legatee cannot claim it. In the case at bar, we have shown, that if the decree of the County court was upheld, the intent and desire of the testator to protect his surviving partners, would probably be thwarted.
    It must be remembered, that the County court, in the adjustment of the estates of deceased persons, is indebted for its existence and powers to the several statutes on the subject. Its jurisdiction is, of course, limited, depending upon the extent of the legislative grants in its favor; and of consequence, cases must arise, in which it will be incompetent to administer complete justice between all parties interested. Yet, it will not-follow, because this jurisdiction is imperfect, that a party interested in the estate of a deceased person, is without remedy to obtain his rights. The powers of a court of chancery are ade-. quate to the emergency.
    Executors and administrators, are in almost every respect, considered in equity as trustees — (Graff vs. -Castle-man et al. 5 Rand. R. 195; Dodson vs. Simpson, 2 Rand. R. 294,- Knight vs. Yarborough, 4 Rand'. R. 367; Field vs. Schieffelin, 7 Johns. R. 157; Petrie vs. Clark, 11 Serg. & Rawle’s R. 377; Grasser vs. Eckart, 1 Binn. R. 575; Boudinot vs. Bradford, 2 Dali. R. 268; Wilson vs. -Wilson, 3 Binn. R/562; Wilson vs. Wilson, 9 Serg. & Rawle’s R. 428 ; Neaves’ estate, 9 Serg. & Rawle’s R. 186; Willis on Trustees, 69, n. (1) 136, n (m) 138, n. (t); L. Lib.; Ram on Wills, 538, 539.)
    Upon this principle, chancery exercises jurisdiction over them, by compelling an executor to apply the property of his testator to the payment of debts and legacies, according to the directions of the will, or in case of intestacy according to the statute of distributions — (1 Williams on Ex’rs 157; 2 Ibid. 239.) Hence, a court of equity will entertain a bill for a personal legacy; or for the distribution of the intestate’s personal estate, and will compel an executor or administrator, in the same manner as it does an express trustee to discover and set forth ■an account of the assets, and of his application of them. (2 Williams on Ex’rs, 1239, and cases there cited.)
    An account has been decreed by the English chancery; of an intestate’s personal estate, even-after an account taken and distribution decreed in the spiritual court_ (Bissell vs. Axtell, 2. Vern, Rep. 47; Dulwich College vs. Johnson, 2 Vera. R. 49; Phipps vs. Steward, 1- Atk. 285; 2 Font). Eq. 380, n. (b.) And bills for the discovery of assets have been there entertained before probate, or during the litigation in regard to it, in the spiritual court.
    A legatee may sue in equity for the recovery of his legacy, and if a settlement of the estate be necessary, all parties whose rights are to be affected, or from whom a discovery is desired, may be brought before the court— (2 Williams on Ex’rs, 1241; Fellows vs. Fellows, 4 Cow. R. 682; Deefcs vs. Strutt, 5 T. R. 692; Ward, on Leg. 384; 2 Roper on Leg. 636.)
    According to the English practice, where a will relates to lands only, it ought ‘not'to be proved in the spiritual court — but if it embraces personal property also, it ought to be proved there; yet the probate will not prejudice the heirs, inasmuch as it will not attest the validity of the will, as to the lands, nor will the examination of the witnesses in that court, be evidence in the courts of common law. Therefore, if in the case of a mixed will, it be necessary to prove a devise of lands in a suit concerning it in any of the temporal courts, it is necessary to give the will itself in evidence, and for that purpose, It is usual in trials at nisi prius, to procure the attendance of the proper officer of the ecclesiastical court, who produces the original will from the registry, in which, after probate, it has been deposited. When the will is wanted in chancery, that court will make an order upon the prerogative court, to deliver it to the registrar’s office in chancery, to lie there till the court of chancery shall have done with it — (1 Williams on Executors, 216, 218; Tucker vs. Phipps, 3 Atk. R. 36i.)

      Tlie jurisdiction in equity, is in some instances concurrent with the ecclesiastical court, while in others it is exclusive. Where the bequest of a legacy involves the execution of trusts, either expressed, or by the construction or implication of the' court, or where the trusts themselves are to be pointed out by the court; or where the remedy itself can only be enforced under the peculiar power of a court of chancery, as where a discovery of assets is required. In these and similar cases, equity has exclusive jurisdiction, and will protect it by the process of injunction — (2 Williams on Ex’rs, 1268, and cases cited : 2 Roper on Leg. 537, and cases cited.)
    But it is said suits for legacies are now rarely brought in the ecclesiastical courts — legatees finding the authority of these courts incompetent to enforce a discovery of assets, were frequently driven for that purpose into equity. Which court, to prevent circuity of suit, exercised a complete jurisdiction in the matter, by enforcing the discovery, and decreeing payment of the legacies — (Cowp. R. 287; 5 Haddock’s R. 357; 3 Ridg. P. C. 243.)

      Again: — Equity, it is said, will entertain jurisdiction, where lands are devised to pay debts and make distribution, and will regard the proceeds as equitable assets— (Benson vs. Le Roy, 4 Johns. Oh. R. 654, 658, and the authorities cited in the argument of the plaintiff’s counsel, 653.) And if a trustee disregards the directions of the will in the execution of a power, the authority of chancery is adequate to his removal — (Parsons et al. vs. Winslow, 16 Mass. R. 361.)
    ■ And in Ehnendorf vs. Lansing, (4 Johns. Oh; R. 565,) “It is a settled principle,” says Mr. Obaneellor Kent, of a court of equity, “that an executor, or other trustee, who mismanages, or puts the assets in jeopardy hy his insolvency, either existing or impending, should be prevented from further interfering with the estate, and that the funds should be withdrawn from his hands. The authorities to this point are sufficiently numerous.” So, the law may be regarded as settled, that “ an executor is personally liable in equity for all breaches of the ordinary trusts, which in courts of equity‘are considered to arise from his office — (2 Williams on Ex’rs, 1104; Muclt-low vs. Fuller, 4 Cond. Eng. Oh. R. 94, 95.)
    Thus, we have shown that courts of equity have in England a concurrent jurisdiction with the spiritual courts, for the-recovery of personal legacies in all cases— that in some cases, the jurisdiction of the former is exclusive. Whether the devisee of a defined tract of land can maintain an action for. the recovery of the possession, oh the ground that the will operates a conveyance in his favor — or whether, in such cáse, the assent of the executor is necessary .to give a' right of entry, we need not determine, since it is clear, that that case is unlike the present — (Ram on Wills, 3, 8; Ewer vs. Jones, 2 Salk R. 415; Willard vs. Nason, aclrn’r, 5 Mass. R. 240; Ram on Assets, 508, n. (a.)
    Here, there is no spe'cific devise of lands to the defendant, Helen Naomi-. The plaintiff is allowed to convert the lands embraced by the will, into money, either to pay debts, to make division, or for .any other purpose deemed beneficial by him for those concerned. So that if the plaintiff is allowed to proceed in the administration, controlled alone by the limitation prescribed to his discretion lay the will, there may be no lands to'divide, when the business of the estate shall be brought to a close.
    If the plaintiff has been neglectful in the execution 4Í the-trust — if he has bean guilty of mala fides — if tM rights of the defendants are in jeopardy — these and many other causes would furnish reasons for a court of equity to protect them by making the necessary orders., That court is also competent to bring all persons in interest before it, and make a definitive disposition Of the Claims of all parlies.

      Further — The decree cf the County court is erroneOuS). in directing the division of the lands situate in other States. The County court could not exercise a jurisdie* íión over the estate of the testator beyond-the reach of its process. The lex rei si tee must determine the validity of a will of lands — (Kerr vs. the Devisees of Moon, 9 Wheaton’s R. 505 ; McCormick vs. Sullivant, 10 Wheat. 192, 202) — and that law must be proved as a fact, where it‘becomes a matter of enquiry in a foreign court. Yet the County court, without requiriiig it to be shown whether the will conformed to the laws ©f Mississippi, Illinois and New York, determined that it was operative bpon the real estate of the testator, situated within thesd States.
    Letters testamentary granted in one State, will hot au-thorise an executor to sue in his representative character, without the jurisdiction of the power by which the letters are granted — (Dixon’s ex’rs vs, Ramsay’s ex’rs, 3 Cranch’s R. 319, 323; See also Fenwick vs. Sears, adiii’r, 1 CranQh’s S. 259 ; 1 Williams ©n Ex’rs, 204, and case# cited in note (1.)

      The case would he different, if lands were devised to an executor. There the executor might sue as a devisee. He would derive title from the will, without • the aid of the letters — while an executor, who is a mere trustee for the purposes of the will, cannot prosecute an action, hut by virtue of the letters — (Doe, Lessee of Lewis and Wife vs. McFarland et al. 9 Cranch’s R. 151.)

    In the case before us, we have said that the plaintiff cannot claim as a devisee — that the will merely annexes to the office of executor, the power'to sell the lands of the testator. Yet thc'Coahty court, by its orders and decree, undertakes to divest the executor of these and vest them in others, though it does not appear that the laws of the States in which the lands are situate, recognise him as • entitled to exert any authority over the real estate of his testator.

      So, it has been holden, that lands lying in other States than that in which the letters testamentary.are granted, cannot be regarded as assets in the latter — (Austin vs. Gage et al. 9 Mass. ft. 395.)
    Other points were made at the argument, and are presented by the record, which we decline considering, as those already noticed ’frill probably lead to a decision of the rights of the parties upon their merits.
   To recapitulate, we are of opinion—

First — That the County court cannot decree distribution of'an estate against the executor where by so doing the testator’s intentions would be defeated.

Second — That in the present case, the decree of the County court, if sustained, would most probably defeat the testator’s intent

Third — That a legatee cannot, in all cases, immediately after the expiration of eighteen months from the grant of letters testamentary, coerce a payment of his legacy.

Fourth — That the decree of the County court is erroneous, in assuming jurisdiction over- the lands of the tes tator, without the limits of this State.

Fifth — That a court of chancery,has ample power over the subject of legacies, and in such cases can administer complete justice — and in the present case, that tribunal is peculiarly appropriate for the adjustment of the rights of all interested under the will.

It remains but to add, that the decree of the County court must be reversed, and the cause remanded,

GOLDTI-IWAITE, J., not sitting.