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Brazier v Hudson

Nominate Series English Reports Cited in Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date30 May 1936
Date30 May 1936
CourtHigh Court of Chancery

English Reports Citation: 59 E.R. 27

HIGH COURT OF CHANCERY

Brazier
and
Hudson

S. C. 5 L. J. Ch. (N. S.) 296. Approved, In re Dallas (1904), 2 Ch. 409.

Executor. Probate.

[67] brazier v. hudson. May 30, 1836. [S. C. 5 L. J. Ch. (N. S.) 296. Approved, In re Dallas [1904], 2 Ch. 409.] Executor, Probate. If an executor does an act and dies without proving the will, the act will be valid if the will is ultimately proved. A term for years was vested in one Hodgson. He died, having appointed his wife his executrix. She assigned the term to Baxter, and died without proving her husband's will. After her death letters of administration, limited as to the term, were taken out to Hodgson. On the hearing of an exception to the Master's report as to the title to the estate, one question was whether the administrator was the proper person to assign the term to a trustee for the purchaser. Mr. Jacob and Mr. T. H. Hall, in support of the exception. An executor derives his title under the will, and not from the Ecclesiastical Court; and, if he acts, he becomes complete executor, although he does not prove the will. Although the probate is the only legal evidence that he is executor, yet he need not prove in order to give validity to his acts. The assignment to Baxter is valid ; but no legal evidence of it can be given so long as the will remains unproved. When the probate is granted, the assignment will not only be good, but capable of being proved; and, consequently, an assignment by the administrator will be void. 1 Williams on Exeeutors, 160. Wank/wd v. Wankfmd (1 Salk. 299; see 308). [68] Mr. Knight and Mr. Coote, in support of the report. If an executor does an act and afterwards proves the will, it is considered as his act from the beginning; but if he dies without proving the will, a subsequent recognition of the will by the Ecclesiastical...

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