for he may grant several administrations of several parts of the goods of the intestate; as where a man died intestate, leaving a wife and a brother, the ordinary had granted administration of some particular debts to the brother, and the residue to the wife. It was agreed by the court that the ordinary might grant administration to the brother, as to part, and to the wife for the rest, in which case neither could complain; since the ordinary need not have granted any part of the administration to the party complaining. But if the intestate leave a bond of 100l. the ordinary cannot grant administration of 50l. to one person, and 50%. to another, because this is an entire thing P.

As concerning the intestate's next of kin: Among the kindred, those are to be preferred that are nearest in degree to the intestate; but of persons in equal degree, the ordinary may take which he pleases (4). The nearness of

1 Roll's Abr. 908. P 1 Salk. 36.

q

12 Black. Com. 504.

selves; but what is of more consequence, it must be inconvenient to those who have demands on the estate, either as creditors or entitled in distribution. Warwick v. Greville, 1 Phillim. Rep. 126. See also 2 Phillim. Rep. 249. And that court will, in no case, force a joint administration ; because, the concurrence of the administrators being required, there might be a complete contrariety of action, and it would be in the power of one of them to defeat the whole administration. Bell v. Timiswood, 2 Phillim. Rep. 22. Dampier v. Colson, ib. 55.

(4) Where the next of kin claiming administration stand in an equal degree of relationship to the deceased, and, consequently, none have a legal preference, the selection rests with the discretion of the court; that discretion, however, is not to be arbitrarily or capriciously assumed, but to be a legal discretion, governed by principle and sanctioned by practice; in exercising it, the court is not to be guided by the wishes or feelings of parties, but is to look to the benefit of the estate, and to that of all the persons interested in the distribution of the property. The first duty of the court is, to place it in the hands of that person, who is likely best to convert it to the advantage of those who have

degree shall be reckoned according to the computation of the civil, and not of the canon law; and therefore, where there be both parents and children of the deceased, the children are entitled to the administration in preference to the parents, though both are in equal degree of kindred; and on failure of children, the parents are entitleds. Then follow brothers, grandfathers, uncles, or nephews, (and the females of each class respectively,) and lastly, cousins.

The half blood is admitted to the administration as well as the whole, for they are of the kindred of the intestate, and only excluded from inheritances of land. Therefore the brother of the half blood shall exclude the uncle of the whole blood", and the ordinary may grant administration to the sister of the half, or the brother of the whole blood, at his own discretion w. But if there is a brother and a sister of the half blood, and the sister is married, then it must be granted to the brother, and not to her and her husband; beWho the half blood are. See

How the nearness of degree is reckoned according to the Civil Law.

See post.

$ 2 Black. Com. 504.

claims, either in paying the creditors, or in making distribution; the primary object being the interest of the property. Where there is no material objection on the one hand, or reasons for preference on the other, the court, in its discretion, puts the administration into the hands of the person with whom the majority of interests are desirous of entrusting the estate. Budd v. Silver, 2 Phillim. Rep. 115. And although the wishes of creditors are not in all cases of weight, yet if the estate is considerable, the demands heavy, and the solvency in the slightest degree doubtful, they are entitled to consideration. 1 Phillim. 127. As between brothers and sisters, primogeniture gives no right against the wish of the majority; but if things are precisely equal, if the scale is exactly poised, being the elder brother would incline the balance. Ib. 125. And all other circumstances being equal, a man accustomed to business is preferred as an administrator. Williams v. Wilkins, 2 Phillim. 100; and so is a solvent person to one who has been a bankrupt. Bell v. Timiswood, ib. 22.

cause in effect it makes the husband administrator, who is not of kin to the intestate; and if she die, the husband would still continue administrator, and so might possess himself of the whole personal estate *.

When the right of administration devolves upon an infant, the ordinary is to grant administration till he arrives at the age of twenty-one; because an infant cannot, before his full age, give bond to administer faithfully y. And as such an administrator is but in nature of a curator for the infant, and has no interest or benefit in the intestate's estate but in right of the infant, it has always been held discretionary in the ordinary to whom to grant it; and therefore it hath been frequently adjudged, that he is not obliged, within the statute of Henry the Eighth, to grant it to the next of kin, either of the deceased or the infant.— If none of the kindred will take out administration, a creditor

may by custom do it. And the ordinary may, in defect of all these we have here mentioned, commit administration (as he might have done before the statute of Edward the Third, when the ordinary had the absolute disposal of intestates' effects a) to such a discreet person as he approves of; or may grant him letters ad colligendum bona defuncti ; that is, to gather up the goods of the deceased, which neither make him executor nor administrator; his only business being to keep the goods in his safe custody, and to do other acts for the benefit of such as are entitled to the property of the deceased. If an administrator die, his executors are not administrators; but it behoveth the ordinary to commit a new administration. Where the administration is granted to two, and one of them dies, the administration surviveth to him who is living.

* 3 Salk. 21.

y Godolph. 102. 5 Co. Rep. 29. z Hob. 251. 1 New Abr. 381. When a person having neither wife, child, or kindred, dies intestate, the usual course is for some one to procure letters patent, or other authority from the king; and then the

ordinary of course grants administration to such appointee of the

crown.

a 2 New Abr. 398.

b Went. Off. Exec. chap. 14.
c 1 Roll's Abr. 907.
d Cas. Talb. 127.

SECTION III.

Where, and by whom Administration is to be granted.

GENERALLY the person who is to grant administration is the bishop of the diocese, or his officer, where the intestate dwellede. And if all the goods of the deceased lie within the same jurisdiction, an administration granted by him is the only proper one; but if the deceased had bona notabilia, or chattels to the value of one hundred shillings, or five pounds, in two distinct dioceses, then administration must be taken out before the metropolitan of the province. But if a man die upon a journey, the goods that he then hath about or with him shall not be as bona notabilia, to cause administration to be committed in the prerogative 8.- Debts owing to the intestate are bona notabilia, as well as goods in possession. And they shall be bona notabilia, in that diocese where the bond or other specialties be, and not where the debtor inhabits. So judgments obtained in the courts at Westminster, upon actions laid in the country, are bana notabilia; not where the action was laid, but where the judgment was obtained; because the record is there. But if the debts be only by simple contract, without specialty, then they are esteemed bona notabilia in the place where the debtor is (5). So a bill of exchange shall be said to be

e Swinb. 427.

f 2 Black, Com. 509.

8 Swinb. 438, 439. The administration has nothing to do with real estate (a description whereof see in page 86.) And in case lands be given by will to executors for payment of debts or legacies; it seems

this shall not be bona notabilia, al-
though it be assets. Went. Off.
Exec. 46.

h 1 Roll's Abr. 909.
i Ibid.

k Carth. 148.

I Went. Off. Exec. 46,

(5) In indebitatus assumpsit, by an administrator for goods sold and delivered by the intestate, on an administration committed by the archdeacon of Berkshire, the defendant pleaded in bar, that he, the defendant, at the time of the death of the intestate, was an inhabitant and resiant

bona notabilia where the debtor is, and not where the bill is: for it is no specialty in law: for if the administrator pays debts upon simple contract, or suffers judgment against him, in such actions he may plead such payment or judgment in bar to an action upon a bill of exchange m ̧ Where one dies possessed of goods in London and Dublin, in such case the resolution seems to have been, that the archbishop of Canterbury, by his prerogative, was to grant administration of the goods in London, and the archbishop of Dublin for those in Dublin n. If one die in Ireland, and have nothing but a specialty for money, and that specialty doth lie in England, the ordinary of the diocese, within which the m 3 Salk. 164.

n

Gibs. 472. 4 Burn's Eccles. Law, 182.

in the city of Oxford, which was within the diocese of Oxford, and that the archdeaconry and whole county of Berks were within the diocese of Salisbury. On special demurrer, because it did not appear that the defendant was not an inhabitant within the diocese of Salisbury, the court overruled the demurrer, and adjudged the plea to be good. Hillyard v. Cox, Salk. 37. 747. There is evidently a mistake in Salkeld's report of this case; and which mistake is noticed by Lee C. J., in Griffith v. Griffith, Say. Rep. 83. The same case is to be found in Lord Raym. 562, where it is said, that Northey took exception to the plea, because the defendant did not traverse his residence in Berks within the peculiar. Holt C. J. "If the debtor has two houses "in several dioceses, and at the time of the death of the "debtor and commission of administration, is inhabitant and "resident at one of the houses, that will exclude the juris"diction of the ordinary of the diocese in which the other "house stood." See Selw. N. P. 749. In debt by an administrator, it appeared, that the letters of administration were granted by the bishop of Bristol. Plea, that the plaintiff's intestate died on the high sea out of the jurisdiction of the bishop of Bristol; and that, therefore, the letters of administration were void. On demurrer, it was holden, that the letters of administration were good; for the right of granting them is not founded upon the dying of an intestate within a diocese, but upon his leaving goods therein. Griffith v. Griffith, Say. 83.