case Abraham against Cunningham if administrator sell a term and afterward a  executor appear and renounce yet the sale be void S C vent S C lev S C Jones  S C keb S C Freem S C Danv in a special verdict in ejectment the case upon the  plead be thus sir David Cunningham be possess of a term for year make his will  and therein appoint his son sir David Cunningham to be his executor and die  sir David the executor in the year make his will also and therein appoint  David Cunningham his son and two other to be his executor and die those two  executor die and b a stranger take out administration cum lestamento fastening  and continue this administration from the year to the year in which time he  make a assignment of this term to the lessor of the plaintiff for which he  have receive a thousand pound and in the year the survive executor of sir  David the executor make oath in the archbishop court that be never hear of his  testator will until then nor ever see it before and that he have not meddle  with the estate nor renounce the executorship then a citation go to show cause  why the administration shall not be repeal and sentence be give that it shall  be revoke upon which the executor enter and the lessor of the plaintiff enter  upon he modern sander for the plaintiff say that the authority in the book be  strong on his side that the first administration be well grant it be true if a  man make a will and administration be grant and that will be afterward prove  such administration be void as in the case of Greysbrook v fox but in this  case after the death of sir David Cunningham the executor testator be dead  intestate for to make a executor there must be first the name of he then there  must be some concur act of his own to declare his assent that he will take  onus performance upon he for no man can make another executor against his will  so that if after the death of the first executor those other executor appoint  by he have make such a declaration as this survive executor have since do  their testator have die intestate Edward pl the executor be make by the  testator and the ordinary be empower by the statute to make the administrator  where the person die intestate so that it be plain there can be a executor and  administrator both together if he who be make so take upon he long after the  will to be executor it shall make he such by relation from the time of the  death of the testator but here be no executor nor ever be it be true that one  be name but as soon as be hear of the will be renounce and therefore there be  no executor in this case nothing now can hinder the administration to be grant  cum teslamento fastening if the testator shall die indebt or have debt owe to  he and the executor refuse probate and renounce his executorship  administration must be grant for law to touch where subsislit cequitas and the  executor have a possibility to be such and by his refusal become no executor  why modern er p shall the bare name of he to be a executor have relation to  make such administration void since it be not the name but the do of the  office which make he executor dyer if all these executor have die after  administration thus commit it can be say that they ever be executor there can  be no inconvenience that this administration shall be good for it be just that  creditor shall have their debt and purchaser shall be secure in the thing  purchase if the testator be indebt a action will lie against a executor de son  tort for such debt which executor be altogether as wrongful as the  administrator to who administration be modern commit and the will afterward  prove by the rightful executor and if such executor of his own wrong be  possess of a term for year and a creditor recover against he that executor  shall have the term in satisfaction of his debt and by the same reason shall  the administrator here have a good title to this term which he sell for the  payment of a just debt and there be no authority for make such administration  void unless it be where the executor prove the will but never when be renounce  but levinz on the other side say that a executor of a executor have all the  interest which the first executor have so that be a executor the  administration grant by the ordinary be void and the renunciation afterward  shall never make it good and this will appear by the different interest which  the ordinary and the executor have by law first the ordinary original have  nothing to do with the estate of the having made no will for good intestate  take hold solent in manus king a Godolpb Mod Bac Abr a afterward two statute  be make which establish his power the first be the statute of Westminster the  first cap and the other be Edward c yet no power be thereby give he to dispose  of the good to his own use or to the use of any other he have only a property  secundum quid and not a absolute and uncontrollable right in the estate second  but the executor have a right and interest give to he by law when a will be  make and may release before probate b   middleton case b if he therefore have  a absolute right and the ordinary have only a qualify property how can be  grant the administration of the good which at the same time be lawful vest in  another suppose the executor sell such good to one man and the administrator  to another the sale of one of they must be void and for the say reason and by  the constant course of the law it must be the latter c Anders case ld ray c it  have be object that here be no executor at all only one name or if it be admit  that there be a executor yet his refusal shall relate to the time of the  administration commit and make that good which may not be so before but as to  that be say that here be a executor appoint by the will who have a interest  and administration be grant to another it be void ab beginning and what be  once void can be make good by any subsequent act   a d Mod comens vern fitzg  stram ld ray d modern here be a want of power in he who do this act for the  ordinary can not grant administration where there be a executor and therefore  no relation shall be to make that good which be once void but if it have be  only voidable it may have be otherwise a relation may be to enable the party  to recover the good of the intestate and to punish trespass as if a man die  possess of good and a stranger convert they and afterward administration be  grant to S this administration shall relate to the time of the death of the  intestate a roll Abr a so that he may maintain trover before the ordinary have  commit it to he but it will never aid the act of the party to avoid they by  relation as if a man make a feoff to a feme covert and afterward devise the  same land the husband disagree this shall have relation between the party so  as the husband shall not be charge in damage but it shall not make the void  devise good   b butler v baker so if a man make a release and afterward get  letter of administration that shall not relate to make his release good to bar  he neither shall his refusal of the executorship do it because at the time of  the release or the refusal there be not any right of action modern er p in he  for that commence in the one case after administration and in the other after  the probate of the will notwithstanding such refusal this executor may  afterward administer at his pleasure and intermeddle with the good of the  testator and if the administration shall be good also then they will have a  power over the same estate by two title at the same time which can be the  great argument which can be bring against this be ab inronvenienti because it  can be safe to purchase under a administrator since a will may be conceal for  a time and afterward the lawful executor therein appoint may appear but this  be more proper for the wisdom of a parliament to redress than that the law  shall be alter by a judicial determination of the court he therefore pray  judgement for the defendant the court be of opinion that the ordinary can  grant administration where there be a executor name in the will and therefore  give judgement for the defendant against the vendee of this term hilary term  the twentyeighth and twentyninth of Charles the second in the common plea sir  Francis north Knt chief justice sir Hugh Wyndham Knt sir Robert Atkins Knt sir  William Scroggs Knt justice sir William Jones Knt attorneygeneral sir Francis  winnington Knt solicitor general