#### Diamond, Exr., vs. Shell et al.

A will; though folly proven and established, confers no other power- on the executor^ than for the burial of the deceased, and the preservation of his estate: the authority of the executor to act as such, .is derived from the letters testamentary, and his appointment must be. confirmed by the Probate Court::

On grant of oyer, the letters testamentary, or a certified copy of them,. without tho proof establishing the will, is. sufficient ff-ima /«¿« evidence of the authority of the-executor--to sue..

Writ of Error to Phillips Circuit Cowrt.

EiKE & OúmMins, for the plaintiff.

The certificate of the clerk-*27of tbe Probate Court tbat tbe will and other papers, including tbe letters testamentary, bad been recorded, was sufficient. Tbe law does .not require a separate certificate to eacb paper recorded.

Mr. Chief Justice WateiNs

delivered tbe opinion of tbe Court.

Tbe plaintiff sued as tbe executor of tbe last will and testament of Dennis Griffin, deceased. Tbe defendant craved oyer of tbe letters testamentary, of which profert was made in tbe declaration. Tbe plaintiff granted oyer, by producing what purported to be a copy of tbe letters testamentary, with a copy of tbe will .annexed, which bad been granted to him by tbe Probate Court of Phillips county, authenticated by tbe official certificate and .sealgof tbe clerk of tbat court, to be a true and correct copy of tbe last will and testament of Dennis Grifin, deceased, and the letters testamentary granted to Eli T. Diamond, upon tbe estate of said Dennis, b;f tbe Probate Court of tbe county of Phillips, “as tbe same now appears upon tbe records of my office.” As part of tbe grant of oyer, and included in tbe same certificate, there was also produced a copy of tbe proof m extenso which bad been taken at tbe probate of tbe will, and of tbe bond given by tbe plaintiff when be qualified as executor. The defendants demurred for a variance between tbe declaration and tbe instrument exhibited on oyer, though tbe special cause assigned, appears to have been for insufficiency, because it did not appear, from tbe certificate of the clerk, tbat tbe letters testamentary ever bad been recorded in bis office, so as to entitle a certified copy of them to be used in lieu of tbe original.

Though the ground of demurrer may be frivolous at tbe first blush, it seems to be proper to notice tbe statutory provisions on tbe subj ect. We apprehend tbat tbe primary object of probating a will, is, tbat it may be established and authenticated before tbe Probate Court having jurisdiction. All wills, when proven, to-gother with the proofs and examinations taken in support of them, are required to be recorded by tbe [clerk of tbe Probate Court, and tke^ginals filed and preserved in bis office; so tbat tbe ex-*28editor is not entitled to, or chargeable with, the custody of them. But tbe will itself, though fully proven and established, confers no more power upon the executor to act as such, than he would have to a limited extent, provided by the statute, before probate: that is, for the burial of the deceased in a manner suitable to his condition, and the preservation of the estate: because, one or more of the executors may refuse to act; and, in case all renounce, the will would have to be executed by a special administrator. The Probate Court must judge, whether the executor named be a suitable person, of fall age, of sound mind, and otherwise qualified to be charged with such a duty. So, though the testator should direct that his executor might not give security, the court would still have a discretion to require it from him, if necessary, (Bankhead, Exr., vs. Hubbard, at July Term, 1853.) It would, therefore, be correct to say that the appointment of an executor by the will, has to be confirmed by the Court*of Probate, or the clerk in vacation, subject to its confirmation or rejection, and who is thus presumed to be acting always under its direction.

If the testator’s appointment be confirmed, the person, who is about to become executor, is required to make an affidavit and enter into bond with security, which are to remain of record in the clerk’s office, and being thus qualified, his appointment and authority to act, are to be completed by the issuance to him of letters testamentary, according to the form prescribed by the statute, and to which a copy of the will is annexed. Before the original letters are given out, it is made the duty of the clerk, under a penalty, to record them, and authenticated copies of them may be read in evidence in the same manner as the originals.

Hence it is, that after these successive steps-, the executor always makes out a prima facie case of authority to sue by producing the letters issued to him, or a certified copy of them. A copy of the will accompanies the letters; but as the granting of them presupposes the establishment of the will by the adjudication of the proper court, the proofs and examinations which may have been taken in support of it, do not necessarily fo:^ any part *29of tbe letters. Li like manner, we understand the intimation in Newton, Ex. vs. Cocke, Ex., (5 Eng. 176,) to be, that though the oath and bond are essential to the executor’s right to act, they need not be produced or proven when his authority is collaterally called in question; because the statute makes them prerequisites to the final issuance of the letters, and it is not to be presumed that the Probate Court, to whom belongs the appointment and removal of executors, has been derelict in exercising its jurisdiction.

Judgment reversed and cause remanded, with instructions to overrule the demurrer.