delivered the opinion of the Court.
It appears in this case, that Edward Coursault being domiciled in Baltimore, died there in the year 1814; and that by his will, dated the 13th August, 1814, he appointed Aglae Coursault, executrix, and Gabriel Paul, executor.
On the 27th August, 1814, letters testamentary were granted in Maryland to. Gabriel Paul — Paul is still alive. Edward Coursault being the owner of the. brig Good Friends, and part of her cargo, both were seized and confiscated at Morlaix, in the-year 1809,'by' the French government.
' Paul, the qualified executor of Coursault, by a power of attorney dated the 1.8th of October, 1832, he being then a resident of Missouri, empowered- Aglae Coursault to present a memorial in his name to the board of commissioners, appointed under the act of Congress to carry into effect the convention between the United States and his majesty the'king-of the French, concluded at Paris, on the' 4th day of July, 1831, for the.claim of the testator to indemnity on account of the'confiscation of the Good Friends, and her cargo; stating in his power, that he would present himself before the board of commissioners as soon a? he might be required. Under this power, Aglae Coursault memorialized the commissioners; -in which memorial, after reciting the seizure and confiscation of the Good Friends and her cargo, what the cargo was, the value of the vessel and her freight, and that Edward Coursault had incurred great expense in defending his rights; it is said, letters testamentary were granted to herself and Gabriel Paul, and'that whatever sum may be awarded upon the claim-, it would belong exclusively to herself.
The-commissioners made an award in favour of the claim..
After this award was made, Kane, the appellant, applied to the Orphans Court of the county of Washington, in the District of Columbia, for letters of administration upon- the estate of Edward Coursault; and upon an affidavit of Thomas Dunlap, stating that the widow and executrix, Aglae Coursault, was dead, an order was. made to issue letters of administration to the appellant, upon the «state of Edward Coursault; and letters of administration de bonis *39 non,'with the will annexed, were.' given to him, he having entered into bond; with Thomas Dunlap and John K. Kane, as securities'for the faithful performance of his'duties..
Kane applied' for, and received from the proper department of the government, a part of the sum awarded by the commissioners upon the claim of Edward Coursault: and this suit was brought by Gabriel Paul, the executor, to recover frorn Kane the moiiey he received, in his character of administrator de bonis non, cum testamen to. annexo.
The declaration contains three counts, in each ,of which the plaintiff claims as executor. The defendant pleaded non assumpsit; and issue being joined, a jury was called to try the issue. • On the trial, besides other evidence, the plaintiff produced his letters testamentary, granted in 1814, in Maryland; and the defendant offered in evidence an e-xemplificatioir-'of the letters of administration granted, to him by the Orphans. Court of Washington county, District of Columbia, in 1837.
The Court charged the jury, that the letters óf administration offered by the defendant, were no bar to the plaintiff’s action; but. that the plaintiff’s letters testamentary and the other evidence, if believed by the jury, entitled him to recover the amount the defendant had received upon the- award of the commissioners, according to the certificate of that amount, given by John H. Houston, a clerk in the fifth auditor’s office. The jury gave a verdict in favour of the plaintiff; the défendaht having first excepted to the instructions of the Court. .
The point then made by this’exception to the. instruction of the Court is, do the letters testamentary, obtained by the plaintiff in Maryland, prevail over the letters of administration de .bonis non, cum testamento annexo, given to the defendant in the District of Columbia, so as to entitle the former to recover from the latter, the money received by him in súch character, without a repeal or revocation of such letters ?
The answer to that question will depend upon the legal character •of the letters granted to the defendant.
Are they void or voidable ?
In Com. Dig. Adm. B. 1, it is said, If there be an executor, and administration be granted before probate and-refusal, it shall be void on-the will being' afterwards proved; although the will were suppressed or its existence were unknown, or it were dubious who was executor, or he were concealed or abroad at the time of granting the administration. So in Com. Dig. B. 2, B. 10, If there be two executors, one of whom proves the will and the other refuses, and he who proves the will dies, and administration is granted before the refusal of tire survivor, subsequently to the death of his co-executor, or if granted before the refusal of the executor, although he ■afterwards refuse, súch -administration shall be Void. In all these cases, the administration is a mere nullity.. The executor’s interest the-ordinary is incapable of divesting. Toller on Ex. 121.
*40 In tbe case of Griffith vs. Frazer, 8 Cran. Rep. 24, the Court says, “ The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, hut he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels,, gs was the.testator himself while alive. This is incompatible with any. power in the ordinary to transfer those chattels to any other person by the grant of administration on them. His grant can pass nothing; it conveys no right, and is a void act.”
Such is the Common Law.
Notwithstanding the extended jurisdiction given by the statutes of Maryland to the Orphans Court in testamentary cases, we cannot .see in them any alteration of the legal consequence' resulting from the grant by that- Court, of letters .of administration, in case of a will, when there is an executor not disqualified by law, or who has not been- excluded from acting in conformity to law. The grant of administration is void, as at common law. The powers-given to the Court are intended to protect the rights of executors ; not to enlarge its jurisdiction to transfer them to another per-, son. 'I’he action of -the Court, to be effective to grant administration upon a will, an executor being alive, and capable of acting, must-be within its powers. If not, the administration will be void. This conclusion is sustained too by the stern manner in which the Orphans Court is confined within its jurisdiction by the statute of 1798, ch. 101, sub-ch. 15. “The said Orphans Court shall not, under’any pretext of incidental power or, constructive authority, exercise any jurisdiction whatever not expressly given by this act, or some other law.”
. The letters being void, the person named in them .cannot retain from the rightful executor the testator’s effects; upon the plea that he may do sp until the letters have beep revoked by the’Court which granted them. The appearance of an executor with proof of the will and letters testamentary, subsequently to the grant of letters of administration in a case where it was supposed there was no will, is of itself a revocation of the latter; and so is .the Maryland law. Dorsey’s Maryland Testamentary Law, 4 sec. 77.
In this casé, then, though the right of the plaintiff to sue in the District of Columbia is given by the act of Congress of the 24th June, 1812; Davis’ Dist. Laws, 266; his right to recover rests upon the legal conclusion that the defendant never was administrator to administer the effects of, the testator: the act of the. Orphans Court naming him such, being void, ab initio. ' His right'under that act is, to “maintain any suit or action, and-to prosecute and recover any claim in the District of Columbia, in the same manner as' if his letters testamentary or administration had been granted by the proper authority,”j&c. &e..“in such District.”
In the case before us, there was a will which had heén proved in Maryland; letters-testamentary granted to an executor; that executor was alive (and is still so) when the Orphans Court gave letters *41 to the defendant, upon the proof .that the executrix named in the will was dead; without any inquiry concerning the executor, but in the face of the certificate of his letters .testamentary..
It was repeatedly asked on the argument of this cause, what rights, can letters testamentary, or of administration, granted' ih either of -' the states of this Union, give to an executor or administrator in the District of Columbia, except the right to sue, given by the act of Congress of 1812. Davis’ Dist. Laws, 266.
We answer, that the right to sue -in-the manner it is given, gives the right to such executor or administrator to recover from any individual within the District of Columbia, effects or money belonging to ,the testator, or intestate, in-whatever way they may have been received, if the law does not permit him to retain them on account of some relation botne to the testator or to his executor, which, defeats the executor’s right; and that letters testamentary, or of administra..tion, obtained in either of the-states or territories of this Union, give a right to the-person haying them to receive and give discharges for assets, without suit, which may be in the hands of any person within the District of Columbia: and the right to receive from the governr ment, either in the District-or in the state where letters have been granted, any sum of money which the government may owe to a testator 6r intestate at the time of his’ death,' or whieh may become due thereafter, or which may accrue to the government from a testator or intestate, in any way or at any time. . And a bona fide payment' to the administrator of a debt dué to the, estate, shall be a legal discharge to the debtor, whether the administration be void or voidable. Toller, 130. Allen vs. Dundas, 3 Term Rep. 125.
It was however urged, that the Court' erred in its instruction to the jury, because the letters testamentary of the plaintiff appear on the face of, them to have been granted ih violation of the law of-Maryland, Dor. Test. Law, 6 sec.
77.
which declares that letters testamentary shall not be granted to any one, or to any number of executors less than the whole; unless there shall be such proceedings, against each óf them failing, as' would authorize the issuing of letters of administration in case"of the failure of a sole named executor. Whether such proceedings were had or not, the record does not show: but if it did, the objection would not -prevail. The certificate, of the Register of -wills annexed to the proceeding of-the Orphans Court, giving letters 'to the defendant, shows that the -will had been proved,, and that the plaintiff had received-letters, testamentary. That he is executor, then, is proved, as much as the law' requires it to be;, whether the declaration is ih assumpsit upon a cause of' action arising in.the time of the testator, or.in that of the executor. The plea was the general issue; and even in a case where that plea raises the question of right or title in the executor, the certificate of probate, and qualification as executor, meets the -requisition. A judicial examination into, their validity can only be gone into upon a plea in abatenient, after oyer has been' craved and granted; and [hen upon issue joined, the plaintiff’s title., as executor or administrator
*42
hiay.be disputed, by showing any of those causes which make, the grant void, ab initio, or that the administration has been revoked.The title .'of an administrator is proved by the production of the letters of administration.
2
Phil., Evi. 550, 551. Childres
vs.
Emory et al.
It was also objected against the recovery in this case, that the money of the testator having been received by the defendant after the death of the testator, the declaration should have been in the plain tiff’s own name, and not as executor. The law is now well established that it may be in either form. The distinction is, .that when an executor sues in respect of. a cause of action which occurred in the lifetime of the deceased, he must declare in the detinet, that is, in his representative capacity only. But where-the cause of action accrues after the death of the testator, if the'money recovered will be assets, the'executor may declare in his representative character, or in his own name.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued, by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and .the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum.