There seems to be no doubt, that in England, an executor may commence an action before probate of the will. Lovelass 190-196.—9 Coke 38, in Hensloe’s case.—1 Roll’s Ab. 917.—3 Lev. 57, Duncomb vs. Walter.—Godolphin 145.
But, as it is necessary, in their practice, to make a profert of the letters testamentary in declaring, they cannot regularly declaie, in England, before probate. 2 Chitt. Plead. 56 and note. The omission of a profert is, however, in such case, only defect in form. 1 Chitt. Plead. 400.
If, in our practice, it were necessary to make a profert of the letters testamentary, an action could not regularly be
In our system of jurisprudence, a will cannot be used as evidence, in any court of common law, until it has been duly proved and allowed in a court of probate. When it has, however, been proved and allowed there, it becomes conclusive evidence in all other courts ; and neither the due execution of the instrument, nor the capacity of the testator can be called in question Yet still the authority of the executor is derived not from the court of probate, but from the testator. That court settles the question, whether the instrument is the will of the testator, and by its decree allowing it as such gives it authenticity. But this is the whole eifect of the decree. When the instrument has been duly proved and allowed in the court of probate, no new authority is given to the executor ; but it is conclusively settled, that the instrument, from which the executor claims to derive his authority is the will of the testator, and is to be considered as such from the time of his death»
We are therefore of opinion, that the plaintiff, in this case, is entitled to judgment, and that the defendant must, according to the agreement, be delaulted.