Page:Harvard Law Review Volume 32.djvu/359

323 PROBLEMS IN PROBATE AND ADMINISTRATION 323 bought.^" And this is entirely independent of the disposition made by the administrator of the consideration received by him. There are plenty of analogies in the law to support the power of one who has no title, or a defeasible title, to transfer it. The registry acts allow a grantor of an unrecorded deed to A to transfer title which is in A to B, who without notice of A registers his document ;^^ an agent without title may of course transfer it, even contrary to inr structions;^^ a disseisor of land may convey title to crops which he has severed from the soil to a bond fide purchaser for value ;^ a pledgee by observing proper formalities may transfer the pledgor's title ;^ and, finally, the case of sale in market overt furnishes a common law analogy .^^ Indeed the position of the administrator is better than that of the seller in many of these cases; for he is acting under appointment of the court. He is not only a representa- tive de facto, but de jure. And, though no case has been found clearly pointing this out, nothing should turn on whether the first appointee acted as a fiduciary or on his own behalf; he has title and can transfer it. The case of a distributee, however, is very different from that of a debtor paying his debt, or of a purchaser from the estate. They are volunteers; and, if they take under a forged will, or administration later revoked, they should disgorge in favor of the second administrator,^® unless imder principles of quasi contracts they have changed their position. Hitherto it has been imagined that the grant of probate or ad- ministration has been in derogation of the right of one rightfully entitled to administration. Where the revocation is effected at the instance of one selected by the testator to wind up his estate, i. e., an executor, the law was not so clear. The earliest case is Y. B. » Brooke's Abr. (1576) Tit. Administrators, 2>y, Packman's Case, 6 Co. 18 b; Semine v. Semine, 2 Lev. 90; Boxall v. Boxall, 27 Ch. D. 220 (1884). See infra Ameri- can cases where grant is in derogation of will. Compare WooUey v. Clark, s B. & Aid. 744 (1822). In Foulke v. Zimmerman, 14 Wall. (U. S.) 113 (1871) and Thompson V. Samson, 64 Cal. 330 (1883), purchasers from distributees under the earUer appoint- ment were protected. " Tiffany, Real Property, § 476. ° Stockwell V. Phelps, 34 N. Y. 363 (1866). " Jones, Collateral Securities, 3 ed., § 603. " Williston, Sales, § 347. " Thompson v. Samson, 64 Cal. 330, 30 Pac. 980 (1883); Fallon v. Chidester, 46 Iowa, s88 (1877); In re West, [1909] 2 Ch. 180.
 * WiLLisTON, Sales, § 317.