Page:Harvard Law Review Volume 32.djvu/360

324 324 HARVARD LAW REVIEW 7 Edw. rV, Trin.^. 12, 13, where Littleton, J., with the concurrence of Newton and Danby, JJ., said: "A man may make me his executor unknown to me etc. And then when I have become aware of it I may well take on myself the power of administration and disposition etc. And Sir the Ordinary may well grant administration in the meantime as he did here, but by the proving of the will the power of the administrator is determined unless the executor has refused some time before the Ordinary then perhaps the law. will be otherwise." In Fitzherbert's Abridgment (1565) ^^ and Brooke's Abridgment (1576)^^ the passage is similarly cited. In Rolle's Abridgment (1668)^^ and in Viner's Abridgment (1753)^° the same propo- sition is stated as follows: "If a man makes an executor, but it is not known, or concealed, the Ordinary may grant administration, and this shall be good till the other prove the will. 7 Edw. 4, 12 f. 13." But the leading case until recent years was Grayshrook v. Fox.^^ The plaintiff executor under the will of Kene brought detinue for chattels. The defendant pleaded that Kene died possessed of the chattels, that administration of his goods was granted, and that before probate of the will the administrator sold the goods to the defendant. The plaintiff's demurrer was sustained by Dyer, C. J., and Walsh, J.; Weston, J., dissenting. Walsh, J., said:62 "And administrators are appointed if the Ordinary for his Ease, and to discharge himself of the burden of the office, and they take their Com- mencement by a spiritual Act viz. by the Letters of Administration, and have Authority over a Thing temporal. But the Executor takes his Commencement by a temporal Act, viz. by the making of the Will of the Testator, which is a temporal Act, but takes its perfection by a spiritual Act, viz. by Probate in the Spiritual Court, and the Executor's Authority is over a Thing temporal. But the Ordinary or Administrator have no Authority or interest, unless the deceased die intestate." Lord Dyer said (p. 280 a) : "Then if the Law, immediately after the Death of the Testator, vests the Property and the Possession of his Goods in the Executor, from thence " Administratours, par. 8. " Executors, par. iii. «9 Page 907. '" Page 66. «i Plowd. 275 (1565). '* Page 279 c.