In Savacool v. Boughton, [5 Wend. Rep. 170,] it was declared to be a settled rule of the common law, that a mere ministerial officer, who executes the process of the court having jurisdiction of the matter, and authorised to issue such process in general, or in certain specified cases, is protected in the execution of such process, if it is regular on its face, and apparently within the jurisdiction of the court issuing it. This-case was re'viewed by the court of errors; in Parker v. Walrod, [16 Wend. Rep. 514,] and is regarded as a most satisfactory exposition of the law. It is there admitted, that if the want of jurisdiction appear upon the face of the process itself, the officer to-whom it is delivered, is bound to take notice of it, and can claim no protection from such process when sued for an act done in-executing its mandate. Further, the court say that, where the plaintiff shows title in himself, derived from the defendant in execution before its lien attached thereon, the execution will not afford a defence to the officer, but to make it available against a stranger, he must connect it with a judgment, and then show that the transfer of the property to the person thus claiming iff was fraudulent and void, as against the creditor who had recovered sueh judgment. This is stated as the only exception to the rule laid down in 5th Wendell. The-cases cited by the plaintiff’s counsel, are noticed by the court, and instead of contradicting what is supposed to be the general rule, only- determine, that where the plaintiffs shows a title derived from the defendant before the lien of the execution, in order to its invalidity, the plaintiff must produce the judgment.
Whether a case come within the rule, or what has been called the exception to it, is wholly immaterial as it respects the frame of the plea; in neither case is it necessary to allege that thefi. fa-. was issued pursuant to a valid judgment. The execution, as we have seen, if unobjectionable in itself, will justify the officer in obeying it, and the judgment, when its production is necessary, is only evidence in connection with extrinsic proof, to show that-the creditor’s right to sell the property was superior to the title which the plaintiff has made out. The judgment is not a primary element in the justification of the officer, and can only be made material by the proof adduced by the plaintiff; therefore, upon principle, the pleadings cannot be required to make any averment in respect to it.
*636In Dunn and Wife, et al. v. The Bank of Mobile, et al. [2 Ala. Rep. 152] we held, that although an instrument be in form a deed of gift, and so designated upon its face, still if its purpose be testamentary — is not to operate during life, but is not to be consummated until death, it may be proved as a will. So, an instrument, which is in form an indenture, and sealed and delivered as a deed, may, if testamentary in its nature, operate as a will even of real estate; and such paper would be a good execution of a power to appoint by will. [Lovelass on Wills, 317, and cases there cited.] The instrument in question, it is clear, is of the character described; for its operation is expressly postponed until after the donor’s death. This being the necessary consequence from the law as stated, the case cited from 2 Ala. Reports, will show, that the gift to Mrs. Shepherd’s children was an executory devise, and may take effect in favor, not only of those who were born at the time the instrument was executed, or at the donor’s death, but all of whom Mrs. Shepherd may become the mother during her life. The intention of the donor requires that the deed should receive this extended interpretation; for all the children, no matter when born, were related to him in the same degree, and following the dictate of nature,- should be alike cherished as objects of his bounty. Now, although nemo heres est vivsntis is a. familiar maxim of the common law, it cannot be allowed that a deed or will shall be inoperative; because, in designating the persons who it is intended shall take under it, the term, “heirs,” is used as a substitute for children or issue. The rule which requ'res the intention of the testator, donor or grantor to’be carried into effect, where it is consistent with law, utterly forbids such a conclusion. It cannot bo maintained that the deed is void because it is uncertain which of the children of Mrs. Shepherd are to take under it. The instrument being testamentary, operates as an executory devise, and that the “heirs” may enjoy the property, all the children must take a joint interest. The difficulty of adjusting the rights oí the children will be no objection to this construction; for it would be competent, if necessary to a division, to sell the property: and in' order to provide for after-born children, those who come into the possession of then-interest, upon the death of Robert Moses, might be required to enter into bond with surety to contribute so as to make up the shares of the younger issue.
*637The instrument in question appears to have bcgn executed in Tennessee, and from any thing to the contrary, shewn by the record, may have been consummated by the death of the donor while possessed of the slave in that State. We, therefore; propose to consider its legal effect in reference to the English common law, which,,in the absence of proof showing it to‘be inapplicable, must,.when consistent with our institutions, be understood tb be-the rule of decision in a sistei; State.
It has been said, that á will of real estate, independently of the requirements of d statute, does not need a formal probate to give to it efficacy in fdvor of a devisee; that it operates as a conveyance, propria vigore, and like an ancient'deed, when possession has been consistent with it for a long time, will be presumed to have been executed in the manner it imports. [Ram. on Wills, 3—4; Bagwell v. Elliott, et ux. 2 Rand. Rep. 190; Fetherly v. Wagoner, 11 Wend. Rep. 519. See, also, 3 Johns. Cases, 283; 5 Cow. Rep. 221; 7 id. 374; 6 Serg’t & R. Rep. 223; 1 Har. & McH. Rep. 419; 10 Wheat. Rep. 470; 2 Rep. Const. Ct. of So. Caro. 80; 4 Dev. Rep. 430; 3 Phil. Ev., C. & H.’s notes, 861, 1347, 8.] But .the question is not as to the necessity of a probate in order to establish a will of real estate at common law; it is- whether the legatee of personal prqperty can recover it at law until the will has been proved in the forum provided for that purpose. This question arose in Rex v. The Inh. of Netherseal, [4 T. Rep. 258,] and Lord Kenyon said, “we cannot receive any other evidence of their being a bill in thisnase than such as would be sufficieht in all other cases, where titles are derived under a will; and nothing but the probate or letters of administration with the will annexed-are legal evidence of the will in all cases of personalty” 'This was considered as a correct statement of the law in Armstrong v. Lear, [12 Wheat. Rep. 175,] where it was held, that an administrator' appointed here, could not sue for a legacy bequeathed by a foreign will; because, probate of the will had not-been made. [And the same doctrine isTe-asserted in Tarver v. Tarver, 9 Peters’ Rep. 174. See, also, Pinkerton v. Walker, 3 Hayw. Rep. 223: Howell v. Whitchurch, 4 Id. 49; Pinney v. Pinney, 2 Mann. & Ryl. Rep. 436; 8 Barn. & C. Rep. 335.]
It is needless to'enlarge upon this point,-for it is clear, upon the authorities cited, as well as upon principle, that the plaintiff’s can *638take nothing under the testamentary paper adduced by them, until it has been admitted to probate as a will. The reasons which induced a decision by the circuit court against the validity of the instrument, we have seen are not well founded in law, yet the result was correct; and the plaintiff’s, not being prejudiced, cannot urge an erroneous reason for a correct decision as a ground for its reversal. The consequence is, that the judgment of the circuit court'is affirmed.