Succession of Maxwell Sommerville, 1 Rob. 261

Garland, J. Mary F. Sommerville, widow of Maxwell Som-merville, deceased, a resident of the state of Pennsylvania, obtained a rule on the Judge of the Court of Probates, requiring him to show cause why a mandamus should not issue, to compel him to recognize her as the testamentary executrix of the last will of her aforesaid husband.

With her petition, she filed a duly certified copy of the will, which had been regularly admitted to probate in the state of Pennsylvania, where she'had duly qualified as executrix in the year 1836, for the space of two years, at the expiration of which time, or before, if it could be done, she was to render an account of her administration.

It further appears from the admissions of the petitioner, that the will had already been duly registered and ordered to be executed, and that sometime past a dative testamentary executor had been appointed by the respondent, who for some cause, not apparent to us, had ceased to act as such, and had been discharged.

The Judge of the Court of Probates has presented a variety of reasons why a mandamus should not issue to compel him to recognize the petitioner as the executrix of the will, only one of which it is necessary to consider at present, which is, that the petitioner is not now the executrix in Pennsylvania, and cannot be recognized as such in this state. An examination of the letters testamentary produced, shows that the petitioner qualified as executrix on the 24th of Nouember, 1838, and was compelled by the terms of the appointment to render a full and true account of her administration within two years after.

It is thus conclusively shown that the term for which the petitioner was appointed has expired, and no evidence of her being continued or re-appointed has been exhibited ; and that she has not been so continued is confirmed by the fact that when the will was first presented for registry and for an order of execution, a dative testamentary executor was appointed, which would not have been necessary, if the executrix^named by the testator had been properly in the exercise of her functions.

The Judge of the Court of Probates was clearly right in refusing to recognize the petitioner as the executrix of the will of Maxwell Sommerville, deceased. The rule is therefore discharged with costs.