LETTERS TESTAMENTARY, AND OF ADMINISTRATION. It is proposed to
consider, 1. Their different kinds. 2. Their effect.
2. - §1. Their different kinds. 1. Letters testamentary. This is an
instrument in writing, granted by the judge or officer having jurisdiction of
the probate of wills, under his hand and official seal, making known that on the
day of the date of the said letters, the last will of the testator, (naming
him,) was duly proved before him; that the testator left goods, &c., by
reason, whereof, and the probate of the said will, he certifies "that
administration of all and singular, the goods, chattels, rights and credits of
the said deceased, any way concerning his last will and testament, was committed
to the executor, (naming him,) in the said testament named." 2. Letters of
administration may be described to be an instrument in writing, granted by the
judge or officer having jurisdiction and power of granting such letters, thereby
giving the administrator, (naming him,)," full power to administer the goods,
chattels, rights and credits, which were of the said deceased, in the county or,
district in which the said judge or officer has jurisdiction; as also to ask,
collect, levy, recover and receive the credits whatsoever, of the said deceased,
which at the time of his death were owing, or did in any way belong to him, and
to pay the debts in which the said deceased stood obliged, so far forth as the
said goods and chattels, rights and credits will extend, according, to the rate
and order of law." 3. Letters of administration pendente lite, are letters
granted during the pendency of a suit in relation to a paper purporting to be
the last will and testament of the deceased. 4. Letters of administration de
bonis non, are granted, where the former executor or administrator did not
administer all the personal estate of the deceased, and where he is dead or has
been discharged or dismissed. Letters of administration, durante minori aetate,
are granted where the testator, by his will, appoints an infaut executor, who is
incapable of acting on account of his infancy. Such letters remain in force
until the infant arrives at an age to take upon himself the execution of the
will. Com. Dig. Administration, F; Off. Ex. 215, 216. And see 6 Rep. 67, b; 5
Rep. 29, a; 11 Vin. Abr. 103; Bac. Ab. h. t. 6. Letters of administration
durante absentia, are granted when the executor happens to be absent at the time
when the testator died, and it is necessary that some person should act
immediately in the management of the affairs of the estate.
3. - §2. Of their eltect. 1. Generally. 2. Of their effect in the different
states, when granted out of the state in which legal proceedings are
4. - 1. Letters testamentary are conclusive as to personal property, while
they remain unrevoked; as to realty they are merelly primÉ facie evidence of
right. 3 Binn. 498; Gilb. Ev. 66;. 6 Binn. 409; Bac. Abr. Evidence, F. See 2
Binn. 511. Proof that the testator was insane, or that the will was forged, is
inadmissible. 16 Mass. 433; 1 Lev. 236. But if the nature of his plea allow the
defendant to enter into such proof, he may show that the seal of the supposed
probate has been forged, or that the letters have been obtained by surprise; 1
Lev. 136; or been revoked; 15 Serg. & Rawle, 42; or that the testator is
alive. 15 Serg. & Rawle, 42; 3 T. R. 130.
5. - 2. The effect of letters testametary, and of administration granted, in
some one of the United States, is different in different states. A brief view of
the law on this subject will here be given, taking the states in alphabetical
6. Alabama. Administrators may sue upon letters of administration granted in
anothor state, where the intestate had no known place of residence in Alabama at
the time of his death, and no representative has been appointed in the state;
but before rendition of the judgment, he must produce to the court his letters
of administration, authenticated according to the laws of the United States, and
the certificate of the clerk of some county court in this state, that the
letters have been recorded in his office. Before he is entitled to the money on
the judgment, he must also give bond, payable to the judge of the court where
the judgment is rendered, for the faithful administration of the money received.
Aiken's Dig. 183 Toulm. Dig. 342.
7. Arkansas. When the deceased had no residence in Arkansas, and he devised
lands by will, or where the intestate died possessed of lands, letters
testa-mentary or of administration shall be granted in the county where the
lands lie, or of one of them, if they lie in several counties; and if the
deceased had no such place of residence and no lands, such letters may be
granted in the county in which the testator or intestate died, or where the
greater part of his estate may be. Rev. Stat. c. s. 2.
8. Connecticut. Letters testamentary issued in another state, are not
available in this. 3 Day 303. Nor are letters of administration. 3 Day, 74; and
see 2 Root, 462.
9. Delaware. By the act of 1721, 1 State Laws, 82, it is declared in
substance, that when any person shall die, leaving bona notabilia, in several
counties in the state and in Pennsylvania or elsewhere; and, any person not
residing in the state, obtains letters of administration out of the state, the
deceased being indebted to any of the inhabitants of the state, for a debt
contracted within the same to the value of ú20, then, and in such case, such
administrator, before he can obtain any judgment in any court of record within
the state against any inhabitant thereof, by virtue of such letters of
administration, is obliged to file them with some of the registers in this
state; and must enter into bonds with sufficient sureties, who have visible
estates here, with condition to pay and satisfy all such debts as were owing by
the intestate at the time of his death to any person residing in this state, so
far as the effects of the deceased in this state will extend. By the act of June
16, 1769, 1 State Laws, 448, it is enacted in substance that any will in writing
made by a person residing out of the state, whereby any lands within the state
are devised, which shall be proved in the chancery in England, Scotland,
Ireland, or any colony, plantation, or island in America, belonging to the king
of Great Britain, or in the hustings, or mayor's court, in London, or in some
manor court, or before such persons as have power or authority at the time of
proving such wills, in the places aforesaid, to take probates of wills, shall be
good and available in law for granting the lands devised, as well as of the
goods and chattels bequeathed by such will. The copies of such will, and of the
bill, answer, depositions and decree, where proved in any court of chancery, or
copies of such wills and the probate thereof, where proved in any other court,
or in any office as aforesaid, being transmitted to this state, and produced
under the public or common-seal of the court or office where the probate is
taken, or under the great seal of the kingdom, colony, plantation or island,
within which such will is proved (except copies of such wills and probates as
shall appear to be revoked), are declared to be matter of record, and to be good
evidence in an any court of law or equity in this state, to prove the gift or
devise made in such will; and such probates are declared to be sufficient to
enable executors to bring their actions within any court within this state, as
if the same probates or letters testamentary were granted here, and produced
under the seal of any of the registers offices within this state. By the 3d
section of the act, it is declared that the copies of such wills and probates so
produced, and given in evidence, shall not be returned by the court to the
persons producing them, but shall be recorded in the office of the recorder of
the county where the same are given in evidence, at the expense of the party
producing the same.
10. Florida. Copies of all wills, and letters testamentary and of
administration, heretofore recorded in any public office of record in the state,
when duly certified by the keeper of said records, shall be received in evidence
in all courts of record in this state and the probate of wills granted in any of
the United States or of the territories thereof, in any foreign country or
state, duly authenticated and certified according to the laws of the state or
territory, or of the foreign country or state, where such probate may have been
granted, shall likewise be received in evidence in all courts of record in this
11. Georgia. To enable executors and administrators to sue in Georgia, the
former must take out letters testamentary in the county where the property or
debt is; and administrators, letters of administration. Prince's Dig. 238; Act
of 1805, 2 Laws of Geo. 268.
12. Illinois. Letters testamentary must be taken out in this state, and when
the will is to be proved, the original must be produced; administrators of other
states must take out letters in Illinois, before they can maintain an action in
the courts of the state. 3 Griff. L. R. 419.
13. Indiana. Executors and administrators appointed in another state may
maintain actions and suits and do all other acts coming within their powers, as
such, within this state, upon producing authenticated copies of such letters and
filing them with the clerk of the court in which such suits are to be brought.
Rev. Code, c. 24, Feb. 17, 1838, sec. 44.
14. Kentucky executors and administrators appointed in other states may sue
in Kentucky "upon filing with the clerk of the court where the suit is brought,
an authenticated copy of the certificate of probate, or orders granting letters
of administration of said estate, given in such non-resident's state." 1 Dig.
Stat. 536; 2 Litt. 194; 3 Litt. 182.
15. Louisiana. Executors or administrators of other states must take out
letters of curatorship in this state. Exemplifications of wills, and testaments
are evidence. 4 Griff. L. R. 683; 8 N. S. 586.
16. Maine. Letters of administration must be taken from some court of probate
in this state. Copies of wills which have been proved in a court of probate in
any of the United States, or in a court of probate of any other state or
kingdom, with a copy of the probate thereof, under the seal of the court where
such wills have been proved, may be filed and recorded in any probate court in
this state, which recording shall be of the same force as the recording and
proving the original will. Rev. Stat. T. 9, c. 107 §20; 3 Mass, 514; 9 Mass.
337; 11 Mass. 256; 1 Pick. 80; 3 Pick. 128.
17. Maryland. Letters testamentary or of administration granted out of
Maryland have no effect in this state, except only such letters issued in the
District of Columbia, and letters granted there authorize executors or
administrators to claim and sue in this state. Act of April 1813, chap. 165. By
the act of 1839, chap. 41, when non-resident owners of any public or state of
Maryland stocks, or stocks of the city of Baltimore, or any other corporation in
this state die, their executors or administrators constituted under the
authority of the state, district, territory or country, where the deceased
resided at his death, have the same power as to such stocks, as if they were
appointed by authority of the state of Maryland. But, before they can transfer
the stocks, they must, during three months, give notice to two newspapers
published in Baltimore, of the death of the testator or intestate, and of the
"amount and description of the stock designed to be transferred." Administration
must be granted in this state, in order to recover a debt due here to a
decedent, or any of his property, with the exceptions above noticed.
18. Massachusetts. When any person shall die intestate in any other state or
country, leaving estate to be administered within this state, administration
thereof shall be granted by the judge of probate of any county, in which there
is any estate to be administered; and the administration, which shall be first
lawfully granted shall extend to all the estate of the deceased within the
state, and shall exclude the jurisdiction of the probate court in every other
county. Rev. Stat., ch. 64, s. 3. See 3 Mass. 514; 5 Mass. 67; 11 Mass. 256 Id.
314; 1 Pick. 81.
19. Michigan. Letters testamentary or letters of administration granted out
of the state are not of any validity in it. In order to collect the debts or to
obtain the property a deceased person who was not a resident of the state, it is
requisite to take out letters testamentary or letters of administration from a
probate court of this stafe, within whose jurisdiction the property lies, which
letters operate over all the state, and then sue in the name of the executor or
administrator so appointed. Rev. Stat. 280. When the deceased leaves a will
executed according to the laws of this state, and the same is admitted to proof
and record where he dies, a certified transcript of the will and probate
thereof, may be proved and recorded in any county in this state, where the
deceased has property real or personal, and letters testamentary may issue
thereon. Rev. Stat. 272, 273.
2O. Mississippi. Executors or administrators in another state or territory
cannot as such, sue nor be sued in this state. In order to recover a debt due to
a deceased person or his property, there must be taken out in the state, letters
of administration or letters with the will annexed, as the case may be. These
may be taken out from the probate court of the county where the proprty is
situated, by a foreign as well as a local creditor, or any person interested in
the estate of the deceased, if properly qualified in other respects. Walker's R.
21. Missouri. Letters testamentary or of administration granted in another
state have no validity in this; to maintain a suit, the executors or
adminis-trators must be appointed under the laws of this state. Rev. Code, §2,
22. New Hampshire. One who has obtained letters of administrition; Adams'
Rep. 193, or letters testamentary under the authority of another state, cannot
maintain an action in New Hampshire by virtue of such letters. 3 Griff. L. R.
23. New Jersey. Executors having letter testamentary, and administrators
letters of administration granted in another state, cannot sue thereon in New
Jersey, but must obtain such letters in that state as the law prescribes. 4
Griff. L R. 1240. By the act of March 6, 1828, Harr. Comp. 195, when a will has
been admitted to probate in any state or territory of the United States, or
foreign nation, the surrogate of any county or this state is authorized, on
applicaton of the executor or any person interested, on filing a duly
exemplified copy of the will, to appoint a time not less than thirty days, and
not more than six-months distant, of which notice is to be given as he shall
direct, and if at such time, no sufficient reason be shown to the contrary, to a
omit such will to probate, and grant letters testamentary or of administration
cum testamento annexo, which shall have the same effect as though the original
will had been produced and proved under form. If the person to whom such letters
testamentary or of administration be granted, is not a resident of this state,
he is required to give security for the faithful administration of the estate.
By the statute passed February 28, 1838, Elmer's Dig. 602, no instrument of
writing can be admitted to probate under the preceding act unless it be signed
and published by the testator as his will. See Saxton's Ch. R. 332.
24. New York. An executor or administrator appointed in another state has no
authority to sue in New York. 6 John. Ch. Rep. 353; 7 John. Ch. Rep. 45; 1
Johns. Ch. Rep. 153. Whenever an intestate, not being an inhabitant of this
state, shall die out of the state, leaving assets in several counties, or assets
shall after his death come in several counties, the surrogate of any county in
which assets shall be, shall have power to grant letters of administration on
the estate of such intestate; but the surrogate, who shall first grant letters
of administration on such estate, shall be deemed thereby to have acquired sole
and exclusive jurisdiction over such estate, and shall be vested with the powers
incidental thereto. Rev. Stat. part 2, c. 6. tit. 2, art. 2, s. 24; 1 R. L. 455
§3; Laws, of 1823, p. 62, s. 2, 1824, p. 332.
25. North Carolina. It was decided by the court of conference, then the
highest tribunal in North Carolina, that letters granted in Georgia were
insufficient. Conf. Rep. 68. But the supreme court have since held that letters
testamentary granted in South Carolina, were sufficient to enable an executor to
sue in North Carolina. 1 Car. Law Repos. 471. See 1 Hayw. 364.
26. By the revised statutes, ch. 46, s. 6, it is provided, that "where a
testator or testatrix shall appoint any person, residing out of this state,
executor or executrix of his or her last will and testament, it shall be the
duty of the court of pleas and quarter sessions, before which the said will
shall be offered for probate, to cause the executor or executrix named therein,
to enter into bond with good and sufficient security for his or her faithful
administration of the estate of the said testator or testatrix and for the
distribution thereof in the manner prescribed by law; the penalty of said bond
shall be double the supposed amount of the personal estate of the said testator
or testatrix; and until the said executor or executrix shall enter into such
bond, he or she shall have no power nor authority to intermeddle with the estate
of the said testator or testatrix; and the court of the county in which the
testator or testatrix had his or her last usual place of resi-dence, shall
proceed to, grant letters of administration with the will annexed, which shall
continue in force until the said executor or executrix shall enter into bond as
aforesaid. Provided nevertheless, and it is hereby declared, that the said
executor or executrix shall enter into bond as by this act directed within the
space of one year after the death of the said testator, or testatrix, and not
27. Ohio. Executors and administrators appointed under the authority of
another state, may, by virtue of such appointment, sue in this. Ohio Stat. vol.
38, p. 146; Act. of March 23, 1840, which, went into effect the first day of
November following; Swan's Coll. 184.
28. Pennsylvania. Letters testamentary or of administration, or otherwise
purporting to authorize any person to intermeddle with the estate of a decedent,
granted out of the commonwealth, do not in general confer on any such person any
of the powers, and authorities possessed by an executor or administrator, under
letters granted within the state. Act of March 15, 1832 s. 6. But by the act of
April 14, 1835, s. 3, this rule is declared not to apply to any public debt or
loan of this commonwealth; but such public debt or loan shall pass and be
transferable, and the dividends thereon accrued and to accrue, be receivable in
like manner and in all respects and under the same and no other regulations,
powers and authorities as were used and practiced before the passage of the
above mentioned act. And the act of June 16, 1836, s. 3, declares that the above
act of March 15, 1832, s. 6, shall not apply to shares of stock in any bank or
other incorporated company, within this commonwealth, but such shares of stock
shall pass and be transferable, and the dividends thereon accrued and to accrue,
be receivable in like manner in all respects, and under the same regulations,
powers and authorities as were used and practiced with the loans or public debts
of the United States and were used and practiced with the loans or public debt
of this commonwealth, before the passage of the, said act of March 15, 1832, s.
6, unless the by-laws, rules and regulations of any such bank or corporation,
shall, otherwise provide and declare. Executors and administrators who had been
lawfully appointed in some other of the United States, might, by virtue of their
letters duly authenticated by the proper officer, have sued in this state. 4
Dall. 492; S. C. 1 Binn. 63. But letters of administration granted by the
archbishop of York, in England, give no authority to the administrator in
Pennsylvania. 1 Dall. 456.
29. Rhode Island. It does not appear to be settled whether executors and
administrators appointed in another state, may, by virtue of such appointment,
sue in this. 3 Griff. L. R. 107, 8.
30. South Carolina. Executors and administrators of other states, cannot, as
such, sue in South Carolina; they must take out letters in the state. 3 Griff.
L. R. 848.
31. Tennessee. §1. Where any person or persons may obtain, administration on
the estate of any intestate, in any one of the United States, or territory
thereof, such person or persons shall be enabled to prosecute suits in any court
in this state, in the same manner as if administration had been granted to such
person or persons by any court in the state of Tennessee. Provided, that such
person or persons shall, produce a copy of the letters of administration,
authenticated in the manner which has been prescribed by the congress of the
United States, for authenticating the records or judicial acts of any one state,
in order to give them validity in any other state and that such letters of
administration had been granted in pursuance of, and agreeable to the laws of
the state or territory in which such letters of administration were granted.
32. § 2. When any executor or executors may prove the last will and testament
of any deceased person, and take on him or themselves the execution of said will
in any state in the United States, or in any territory thereof, such person or
persons shall be enabled to prosecute suits in any court in this state, in the
same manner as if letters testamentary had been granted to him or them, by any
court within the state of Tennessee. Provided, That such executor or executors
shall, produce a certified copy of the letters testa-mentary under the hand and
seal of the clerk of the court where the same were obtained, and a certificate
by the chief justice, presiding judge, or chairman of such court, that the
clerk's certificate is in due form, and that such letters testamentary had been
granted in pursuance of, and agreeable to, the laws of the state or territory in
which such letters testamentary were granted. Act of 1839, Carr. & Nich.
33. Vermont. If the deceased person shall, at the time of his death, reside
in any other state or country, leaving estate to be administered in this state,
administration thereof shall be granted by the probate court of the district in
which there shall be estate to administer; and the administration first legally
granted, shall extend to all the estate of the deceased in this state, and shall
exclude the jurisdiction of the probate court of every other district. Rev.
Stat. tit. 12, c. 47, s. 2.
34. Virginia. Authenticated copies of wills, proved according to the laws of
any of the United States, or of any foreign country, relative to any estate in
Virginia, may be offered for probate in the general court, or if the estate lie
altogether in any other county or corporation, in the circuit, county or
corporation court of such county or corporation. 3 Griff. L. R. 345. It is
understood to be the settled law of Virginia, though there is no statutory
provision on the subject, that no probate of a will or grant of administration
in another state of the Union, or in a foreign country, and no qualification of
an executor or administrator, elsewhere than in Virginia, give any such executor
or administrator any right to demand the effects or debts of the decedent, which
may happen to be within the jurisdiction of the state. There must be a regular
probate or grant of administration and qualification of the executor or
administrator in Virginia, according to her laws. And the doctrine prevails in
the federal courts held in Virginia, as well as in the state courts. 3 Graff. L.