Page images
PDF
EPUB

i him, and the same, so made, do exhibit, or cause to be “ exhibited into the registry of — court, at or before “ the day of — next ensuing; and the same goods, chattels, and credits, and all other the goods, chat“ tels, and credits of the said deceased at the time of his « death, which at any time after shall come to the hands or “ possession of the said A. B. or into the hands and posses“sion of any other person or persons for him, do well and “ truly administer according to law; and further do make, “ or cause to be made, a true and just account of his said « administration, at or before the day of ; and all “ the rest and residue of the said goods, chattels, and cre“ dits, which shall be found remaining upon the said ad“ministrator's account, the same being first examined and " allowed of by the judge or judges for the time being of the 6. said court, shall deliver and pay unto such person or “ persons, respectively, as the said judge or judges, by his 6. or their decree or sentence, pursuant to the true intent " and meaning of this act, shall limit and appoint; and if it “ shall hereafter appear that any last will and testament “ was made by the said deceased, and the executor or exeos cutors therein named do exhibit the same into the said

court, making request to have it allowed and approved « accordingly, if the said A. B. within bounden, being there“ unto required, do render and deliver the said letters of " administration (approbation of such testament being first 6 had and made) in the said court; then this obligation to kbe void, and of none effect, or else to remain in full force " and virtue.

This condition, as to the administering truly, according to law, is to be intended in bringing in the administrator's account, and not in paying the debts of the intestate, and therefore a creditor shall not take an assignment of the bond, and sue it, and for breach assign non-payment of a debt to him, or a deyastavit committed by the administrator ; for that would be endlesse, - By statute 1 Jac. II. c. 17. sect 6. No administrator shall be cited into court to render an account of the personal estate of his intestate, otherwise than by an inventory thereof, unless at the instance of some person in behalf of a minor, or having a demand out of such estate as a creditor or next of kin; nor shall be compellable to account before any ordinary or judge empowered by the act of 22 & 23 Car. II. otherwise than as mentioned by this act. The ecclesiastical court understand no more by an account, than some account in nature of an inventory f; and the ordinary, after the administrator has exhibited an inventory, cannot compel the administrator to account, but it must be at the instance of the party (as one in behalf of a minor, or one having demand out of the intestate's estate, as a creditor or next of kin); and therefore the inventory and account are, as to the ordinary, the same thing 8.

e! Salk. 316.

SECTION V. How and for what Reason, the Administration may be

revoked.

· If an administration is granted, and afterwards a will is produced and proved, the administration shall be revoked h. - The ordinary cannot repeal an administration at his pleasure i. - In the case of Sir George Sands, the father administered to his son, and afterwards a woman pretending to be the son's wife, sued for a repeal ; but a prohibitionk. was granted, because the ordinary had an election to grant it either to the father or wife, and by granting it to the father, had executed his power'. But where a feme-covert, . For more concerning the inven- justice, it may now also be had in tory, and what may be required of some cases out of the court of Chanthe administrator before administra- cery, Common Pleas, or Exchetion is granted, see post.

quer, directed to the judge and par6 3 Atk. 248.

ties of a suit in any inferior court. n 2 Roll's. Abr. 907. See more 2 Black. Com. 112. It is a writ as to this, post.

to forbid any court to proceed in any i Swinb. 381.

cause there depending, on sugges* A prohibition, is a writ issuing tion that the cognizance thereof beproperly out of the court of king's longeth not to the court. Fitzh. bench, being the king's prerogative Nat. Brev. 39. writ; but for the furtherance of Raym. 93.

that is, a married woman, died intestate, and the next of kin to her obtained administration, and the husband sued for a repeal, a prohibition was denied; because in this case the ordinary had no power, or election, to grant it to any person but the husband".

The rule seems to be, that an administration may be repealed, although not arbitrarily, except where there shall be just cause for so doing; as if the administrator should become lunatic, or the like: of which the temporal courts are to judge. So if the next of kin, at the death of the intestate, happen to be uncapable of administering, by reason of attaint or excommunication, and the ordinary commits it to another ; if he afterwards become capable, the ordinary may repeal the first administration, and commit it to the next of kin n. And the same is much more to be said where the administration was undue ab initio, that is, from the beginning, whether as granted to any other than the next of kin, or granted by an incompetent authority, or in an irregular manner, without citing those who ought to have been citedo.

Where a man died intestaté, leaving a wife and a sister, the sister, upon the common oath, that she believed he died intestate, without wife or children, obtained administration, And in a suit to repeal it, as obtained by surprise, it appeared to be the custom of the court, never to grant it to the next of kin, until the wife is cited. The sister moved for a prohibition, and insisted that the ordinary had executed his authority. But the court held, that the ordinary could not be said to have executed his authority, having never had an opportunity to make the election which the statute 21 Hen. VIII. c. 5. gives him; that it was incident to every court to rectify the mistakes they were led into by misreprésentation of the parties : that if there were no surprise (of which the court below was judge) there ought to be a prohibition, because then the administration will have been duly and regularly

o Ibid.

m 3 Salk. 22.
n 4 Burn's Eccles, Law, 236.

granted; but there was a plain surprise, and therefore they denied the prohibition. It is said, that an administration may be repealed, without- any sentence of revocation to be given in any spiritual court, or otherwise ; as by granting á new administration %.

Where the administrator, after many goods administered, had his administration revoked, and it was committed to B., who sued the first, administrator for goods unduly administered; it was held, that there was no remedy but in Chancery. But it is conceived in such a case as this, the second administrator might maintain an action at law against the first, for money had and received, or trover for any goods remaining in his possession"

[graphic]

CHAPTER II.

OF THE ADMINISTRATOR.

SECTION I.

His Power by Virtue of the Administration.

Having seen who are entitled to the administration, and of whom it is to be obtained; and how it may be revoked; we; may now consider the power the administrator has, by having the administration thus granted to him. Somewhat of this we have already seen, as that he cannot act before it is granted to him, and that after it is, he may bring actions, as an executor may.- We have seen also the reason why administration should be thus granted; as that the bishops P 4 Burn's Eccles. Law, 237. Jac. Law Dict. 10 edit. tit. Ibid.

Administrator.

were formerly the administrators of the goods and chattels of persons dying intestate, and this continued to be the case till the statute 31 Edw. III. before mentioned was made". But now administrators are put upon the same footing with regard to suits, and to accounting, as executors appointed by willy. - Where there be two administrators, and one dies, the administration survives, and doth not cease: it not being like a letter of attorney to two, where by the death of one the authority ceaseth; but is rather an office, and administrators are enabled to bring actions in their own names; they come in the place of executors, and therefore the office survives. But if there is but one administrator, and he dies, his executors are not administrators, but it behoves the ordinary to commit a new administration. When an admini. strator hath judgment, and dies, his executors (as such) may not sue execution of the judgment; for none shall have execution of this judgment but he who shall be subject to the payment of the debts of the first intestatea.If there be two or more administrators, one of them cannot sell goods, or release debts (1), without the others join

[ocr errors][ocr errors]

(1) In Mr. Selwyn's Abridgement of the Law of Nisi Prius, (5th ed.) p. 751. is the following note. “ In Willand v. Fenn, E. 11 G. 2. B.R. MSS. a question arose, whether “ the release of one administrator would bind his compa“ nion? The case was argued in E. 11 G. 2. when the “ Court, entertaining doubts, directed a second argument. “ The second argument was heard, Trin. 11 & 12 G. 2. " when Lee C. J. expressed a strong opinion in favour of " the affirmative, observing that it was extremely difficult to “ form a distinction between executors and administrators “ upon any reasonable foundation; and that although it had “not ever been determined at law that the administration 66 survived, yet having been so determined in equity, in « Adams v. Buckland, 2 Vern. 514. and by Lord Talbot in Hudson v. Hudson, he thought those authorities were so

« PreviousContinue »