Walters and Others v Pfeil
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 1829 |
| Date | 27 July 1829 |
| Court | High Court |
English Reports Citation: 173 E.R. 1189
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS
[362] Guildhall, July 27, 1829. walters and others v. pfell. (The title of three, claiming as executors, is well evidenced by the probate granted to one only, of the will appointing them all. In an action for an injury to the plaintiff's premises, in consequence of the pulling down of the defendant's house adjoining, the plaintiff may recover damages for any injury actually caused by the negligence of the defendant, although he has not himself used those precautions which it was his duty to adopt against such injury.) Case, for an injury alleged to be done to the reversionary interest of the plaintiffs in some houses, by the negligent manner in which the defendant pulled down a house of his own adjoining them. The plamtifis were entitled to the property, which was leasehold, as executors of une J. S. To prove their title they produced the probate of the will of J. S., which was granted to one of them only, liberty being reserved to make the like grant to the two other executors. The Attorney-General for the defendants. This evidence is insufficient. Executors may indeed do many things pertaining to their office before obtaining probate . they may be impleaded as executors, and they may deal with the property of the testator ; but there is one thing which they cannot do, and that is, the bringing of an action : for in an action by them, the probate is the only proof of their title. Till they obtain probate, therefore, they can bring no action . and here two of them have never applied for it Brougham for the plaintiffs Executors derive their title from the will, and differ m that respect from administrators They cannot indeed prove their title except through the probate, because the probate is the only admissible evidence of the vah-[363]-dity of a will of personal property . but when the validity of the will is * See Roper's Law of Husband and \Vife, edited by Mr. Jacob, vol. n p. 4tt2 ef seq., where the history and validity of Quaker marriages is ably traced and dis-cusfaed in a note by the editor it seems that the present is the first case in which such a marriage has been judicially allowed, since the case of Moms v. Miller, 4 Burr 2057, established that proof of an actual marriage is necessary to sustain the action 1190 WALTERS V. PFEIL M. & M. 384. dstabtished, the will makes them executors In this case, probate is granted to one of...
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...Trespass, Justification (J.), pi. 1); Brown v. Windsor (1 C. & J. 20); Jones v. Bird (5 B. & Aid. 837, 1 D. & E. 497); Walters v. Pfeil (M. & M. 362); Wyatt v. Harrison (3 B. & Ad. 871); Dodd v. Holme (1 Ad. & E. 493, 3 N. & M. 739);" Trower v. Ghadwick (6 N. C. 1, 8 Scott, 1); Davis v. The......
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