Barnard Pinney against Joel Pinney
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1828 |
| Date | 07 June 1828 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 1067
IN THE COURT OF KING'S BENCH.
S. C. 2 Man. & Ry. 436; 6 L. J. K. B. O. S. 353.
[335] barnard pinney against joel pinney. Saturday, June 7tb, 1828. In trover for a chattel claimed by the plaintiff, as vendee of an executor, the will is not evidence of the title of the executor. The probate must be produced. [S. C. 2 Man. & Ey. 436; 6 L. J. K. B. 0. S. 353.] Trover for a horse and gig. Plea, not guilty. At the trial before Lord Tenterden C.J., at the Middlesex sittings after last Easter term, the following appeared to be the facts of the case :-The defendant's father died in March 1827, having left several testamentary papers. Francis Pinney, the defendant's brother, claimed to be executor, and the defendant also. The Ecclesiastical Court, at the time of the trial, had not granted probate of any of the wills. Francis Pinney sold to the plaintiff the horse and gig (which had been part of the property of the testator); but before and after such sale, the defendant frequently used it, and finally carried it away, and converted it to his own use. Francis Pinney, being called as a witness, stated that he was one of the executors of his father, and that he sold the horse and gig to the plaintiff. The plaintiff then offered to give in evidence the wills or testamentary papers by which Francis Piuney was appointed executor. It was objected, that a will of personal estate was of no effect until probate; that it was no will until it was allowed as such in the Spiritual Court, it being for that Court to judge whether it be a will or not (a), Lord Tenterden C.J. held the production of the probate to be necessary to prove the title to personal property under the will, and [336] refused to receive the will itself. No probate having been produced, he said, that if the plaintiff had proved a clear undisputed possession, it...
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