Griffith v. Frazier

• Decision Date: 09 February 1814
• Citation: 8 Cranch 9,12 U.S. 9,3 L.Ed. 471
• Parties: GRIFFITH v. FRAZIER
• Court: U.S. Supreme Court

12 U.S. 9

8 Cranch 9

3 L.Ed. 471

GRIFFITH v. FRAZIER.

Feb. 9, 1814

Present All the Judges.

ERROR to the Circuit Court, for the South Carolina district.

This was an action of trespass quare clausum fregit, brought by the Plaintiff in the Circuit Court (who was also Plaintiff in error,) to recover a tract of land lying in the district of South Carolina, and in the possession of the Defendant, to which the Plaintiff asserted a title derived from a certain Joseph Salvadore.

Both parties admitted that Salvadore was legally seized of an estate, in fee, in the land in dispute. It appeared further, that Salvadore had executed several bonds in favor of a certain Daniel Bordeaux; that Bordeaux brought an action against Salvadore on these bonds, and obtained thereon a judgment by default, which was entered up and signed on the 30th of August, 1786; that no further steps were taken in the cause, until the 2d of January, 1787, when an execution issued thereon, and was lodged in the sheriff's office on the same day; that Salvadore departed this life on the 29th of December, immediately preceding. Salvadore left a will and two or three codicils, by which he appointed his three daughters, a certain William Stevens, and a certain Joseph Dacosta, his executors. All these persons were absent, out of the state, excepting Dacosta, who proved the will and codicils, and regularly qualified as executor thereto, on the 5th of January, 1787: he continued to reside in the city of Charleston, South Carolina, until some time in the year 1789, when he went to Savannah, in the state of Georgia, where he continued to reside until November, 1790. On the second day of October, 1790, one James Lamotte requested and obtained from the ordinary of Charleston, a citation, in behalf of the principal creditor of Salvadore, who was Bourdeaux, to shew cause why letters of administration with the will annexed, should not be granted to him. On the return of the citation, no cause being shewn to the contrary, the ordinary did, on the 8th of October, 1790, grant general letters of administration with the will annexed, on the estate of Salvadore, to Lamotte. A certificate was also obtained from the ordinary, by which it appeared that it was the custom of the ordinary Court to grant letters of administration durante absentia of the executor. Bourdeaux, on the 27th January, 1791, obtained a rule from the Court of common pleas, against Lamotte, as administrator of Salvadore, to shew cause within thirty days, why the judgment obtained against Salvadore, as aforesaid, should not be revived, and an execution issue thereon. This rule was made absolute on the 15th of March, 1791, 'subject to future argument.' On the 16th of April following (no further argument or proceeding having been had on the said rule, and no Court intervening in the mean time,) an execution issued, on said judgment, against Lamotte, administrator, &c. was lodged in the sheriff's office, and levied upon the land in question, by the Sheriff, on the 11th of May, 1791. The land was sold at public outcry to the highest bidder, on the 6th of June, 1791, and by a deed of the same date, was conveyed by the Sheriff to Peter Freneau, the purchaser. On the 16th of July, 1796, a decree was rendered in the suit, Pierce Butler v. Daniel Bourdeaux and Peter Freneau, directing the said Peter to convey to such person as Pieree Butler should appoint. In pursuance of this decree, Peter Freneau conveyed to Samuel Jackson, under whom Griffith, the Plaintiff in this case, claims by regular conveyances. Frazier, the Defendant, represents the heirs of Salvadore.

On the motion of the Defendant, the Circuit Court instructed the jury, that the letters of administration granted to James Lamotte, were totally void; that therefore the judgment of Bourdeaux was not revived against the estate of Salvadore; that the sale and conveyance by the sheriff passed no title to the purchaser; and that the evidence was not sufficient to maintain the Plaintiff's action. The jury found a verdict for the Defendant, and judgment was rendered in his favor. The Plaintiff excepted to the opinion of the Court, and sued out a writ of error to the judgment.

HARPER, for the Plaintiff in error, after stating the facts of the case, contended,

1st. That the letters of administration, being durante absentia of the executor, were lawfully and properly granted by the ordinary to James Lamotte.

2d. That the question whether the granting of these letters were legal or not, was a question proper for the decision of the Court of ordinary; and that the judgment of that tribunal was conclusive until reversed on appeal to the state Court having competent jurisdiction: that, consequently, the sale, in the present case, was valid, and the Plaintiff's title good.

JONES, contra.

1. The grant of administration durante absentia was absolutely void: which being the case, it is clear that the subsequent sale of the property in question by the sheriff was illegal and invalid.

Dacosta, the executor, had duly qualified; and the circumstance of his having absented himself from the state of South Carolina, for the space of twelve months is a matter of no importance, unless at the same time he was incapable of performing his duty as executor. But this does not appear to have been the fact. The ordinary therefore had no right to grant letters of administration to Lamotte.

As to the certificate, said to have been given by the ordinary, stating that it was the custom of the ordinary Court to grant administration durante absentia of an executor, it would be shown, on the part of the Defendant, that in every case which could be produced in support of that custom, the executor had not qualified.

The jurisdiction of the ordinary relative to the appointment of an administrator, is determined by the act of the testator in appointing an executor. The administrator derives all his rights from the Court of ordinary, and nothing from the will. 1, Com. Dig. 340. 1, Salk. 302. Toler ex'r. 76, 98. 2, Bac. Abr. 381, 386, 401. 2, Plowd. 271.

The grant of letters of administration has, in some cases, been decided to be void, even after the refusal of the executor to take upon himself the execution of the will. 2, Bac. Abr. 386 Went. 145.

The ordinary in granting administration, is a ministerial, not a judicial officer. Toler, 50, 66. Jac. Law, Dict. tit. executor. 12, Mod. 437.

In the case under consideration, the executor had proved the will; and it did not appear to the ordinary that there were any goods and chattels unadministered. If this were the fact, the ordinary had no jurisdiction in the case, 2, Bac. Abr. 385. Griffith's collection of South Carolina laws, p. 35, 492. Ober's administrator v. _____, M. S. report of a case decided in South Carolina.

By the statute of 38, Geo. 3, c. 87, to remedy the defect of the law in not giving to the ordinary the power of appointing an administrator durante absentia of an executor who had proved the will, it was evident that, previous to that statute, the ordinary possessed no such power. That statute was so explained in the case of Taynton v. Hannay, 3, Bos. and Pul. 26. Toler, 104.

When the executor had taken upon himself the trust of executing the will, the goods were out of the jurisdiction of the ordinary. Went. 39. 4, Burn's eccl. law.

If the jurisdiction of the ordinary ceased upon the qualification of the executor, all his subsequent acts in relation to the business were void—3, T. R. 130. Toller 128. The Supreme Court of the United States has decided this principle in cases analogous to the present—4, Cranch, 241, Rose v. Himely. 3, Cranch, 331, Wise v. Withers. Where a Court has no jurisdiction in regard to a particular subject, trespass will lie against a sheriff for executing its orders relative thereto.

2. Admitting the administration granted to Lamotte to have been rightful, yet the execution against him, under which the land in question was sold, was absolutely void; because the thirty day rule, under which the Plaintiff attempted to revive the judgment in this case, was admissible only where the judgment had expired by lapse of time merely; but was not competent to revive a suit or a judgment against the representative of a dead party, which could only be done by scire facias, and no scire facias having issued in this case to make Lamotte a party, the execution against him was absolutely void for want of a judgment whereon to ground it Griffith's collection of S. Carolina laws, 466, 7, sec. 7.

PINKNEY, Attorney General, same side.

The principal if not the only point in controversy is, whether the Court of ordinary had jurisdiction in the case now under consideration.

The ordinary in receiving probate of a will, acts ministerially; and when the will is proved, he is functus officio. The authority of the executor is derived from the will. The only power of the ordinary is to ascertain the existence of the will.

If administration be granted upon the supposition that no will exists, and a will afterwards appear, all the proceedings under the administration are void—the administration is a mere nullity—Toler, 120, 121.

If there be a will, administration cannot be granted until the executor has refused or neglected to appear on summons—Toler, 93.

If administration be granted durante absentia of the executor, it becomes void upon the return of the executor and probate of the will. After probate the ordinary has no further jurisdiction.

The reason of the thing is obvious. The will vests the testator's property in the executor. He has a right after probate, to appoint an attorney. But according to the doctrine contended for by the Plaintiff, the ordinary may also appoint an attorney in the place of the executor. This would be a manifest inconsistency. The executor, after accepting the trust, is bound to administer, and is liable for the goods entrusted to him. See MS. report of the case of Ford v. Travis,...