Middlebrook v. Merchants' Bank , 24 How. Pr. 267 ( 1862 )

Clerke, Justice.

The simple question in this case is, whether an executor, who has obtained probate and letters testamentary in a sister state—the residence of the executor, and where the testator lived and died—can dispose of his testator’s personal property, situated here, without taking out letters ancillary in this state.

It is certain that no person can maintain an action in our courts, as an executor or administrator, without first taking out letters ancillary in this state. That is, before he seeks the aid of our courts to enforce any legal right in this state, he must first be invested, recognized and commissioned, in his representative capacity, by the appropriate jurisdiction here.

But that is very different from saying that he cannot transfer any rights existing in this state—that he cannot sell any of his testator’s estate, or release any interest therein, without first obtaining letters ancillary here;

In the language of Ashurst, J., in Smith agt. Miles, (1 T. R., 480,) “ the executor has the right immediately on the death of the testator, and the right draws after it a constructive possession.”

The probate is a mere ceremony, but when passed, the" executor does not derive his title under the probate, but under the will. The probate is only evidence of his right, and is necessary to enable him to sue; but he may release, &c., before probate. (See, also, Valentine agt. Jackson, 9 Wend., 302; Babcock agt. Booth, 2 Hill, 181.) If the executor, then, can, before probate, dispose of his testator’s property, situated or not in the place where his testator had resided, he certainly can dispose of it after probate, although he cannot enforce the possession of it under a foreign jurisdiction, without complying with the preliminary requirements of the laws of that jurisdiction.

The plaintiff, I think, is clearly entitled to judgment.