PROBLEMS IN PROBATE AND ADMINISTRATION 319 of the time past as the time to come." Therefore it was decided three centuries ago that title of an administrator related back to give him a right to sue in trover.^® And this was extended to other forms of action.^" At law the administrator must show an appointment ante- dating the writ;^^ though in equity it is sufficient to produce letters at the hearing, provided the bill alleges grant of letters .^^ As to an executor: from the earhest times it was conceived that he took title from the will and not from the ordinary.^ Accord- ingly he could sue at law before appointment, though, "for the enforcing of probates," he must prove his appointment before he declared.^* In equity the rule as to executors was the same as in the case of administrators.^^ While the principle of relation back was a familiar doctrine of the law of administration, difficulties arose when it was attempted to extend it to all situations. Suppose the personal representative before letters granted dealt with the estate in a certain way, did his later appointment make valid his acts? First, it may be supposed that the administrator before letters granted gives away part of the estate to one not entitled to distribution who may be either {a) a fellow wrongdoer, or (6) an innocent donee. In both these cases the person receiving the property should disgorge even though the donor later obtains letters;^® for, indeed, even had authority existed before the act, the donee would not have been able as against a credi-
- • Locksmith v. Creswel, 2 Roll. Ab. 399.
»o Trespass, Thorpe v. Stallwood, 5 M. & G. 760 (1843); Brackett v. Hoitt, 20 N. H. 257 (1850). Indebitatus Assumpsit, Welchman v. Sturges, 13 Q. B. 552 (1849); Dempsey v. McNabb, 73 Md. 433, 21 Atl. 378 (1891); Brown v. Lewis, 9 R. I. 497 (1870). Probably actions for injuries to leasehold property, Barnett v. Guildford, II Exch. 19, 31 (1855). But detinue, see Crossfield v. Such, 8 Exch. 825 (1853). In Patten v. Patten, Ale. & N. 493 (1833) it was held that on ejectment by an adminis- trator the fictitious demise might be laid before grant of letters. Compare Foster v. Bates, 12 M. & W. 226 (1843).
- i Wankford v. Wankford, i Salk. 299, 303.
^ Humphreys v. Humphreys, 3 P. Wms. 349 (1734); Fell v. Lutwidge, Barnard. Ch. 319, 320 (1741); Horner v. Homer, 23 L. J. Ch. 10 (1854); i Daniel, Chancery Practice, 6 Am. ed., 318, 319. See Y. B. 18 Hen. VI. 22 b. ^ Graysbrook v. Fox, i Plowd. 275, 280; 2 Roll. Abr. 554; Prattle v. King, T. Jones, 169. " Anon. I Roll. Abr. 917; Wankford v. Wankford, i Salk. 299, 303. Mitchell v. Smart, 3 Atk. 606 (1747). " I Daniel, Chancery Practice, 6 Am. ed., 318, 319. " See Morgan v. Thomas, 8 Exch. 302 (1853); Haselden v. Whitesides, 2 Strob. (S. C.) 353 (1847).
