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BOOK THE FIFTH.

OF THE ORIGIN OF ADMINISTRATION : AND OF THE APPOINT

MENT OF ADMINISTRATORS.

CHAPTER THE FIRST.

IN WHAT COURT ADMINISTRATION MUST BE TAKEN OUT: AND

THEREWITH OF WHAT MAY BE DONE BY THE ADMINISTRA

TOR BEFORE LETTERS OF ADMINISTRATION ARE GRANTED.

IN

case a party makes no testamentary disposition of his personal property, he is said to die intestate (a): the consequences of which it is now proposed to consider.

SECTION I.

In what Court the Letters of Administration shall be

obtained.

In ancient time, when a man died without making any disposition of such of his goods as were testable, it is said that the king, who is parens patriæ, and has the supreme care to provide for all his subjects, used to seize the goods of the intestate, to the intent that they should be preserved and disposed for the burial of the deceased, the payment of

his debts, to advance his wife and children, if he had any, Ancient prero. and if not, those of his blood (b). This prerogative the king gative of the crown :

continued to exercise for some time by his own ministers of justice, and probably in the County Court, where matters of

(a) 2 Black. Comm. 494.

(6) Hensloe's case, 9 Co. 38, b.

all kinds were determined: and it was granted as a franchise to many lords of manors, and others, who have to this day a prescriptive right to grant administration to their intestate tenants and suitors, in their own Courts Baron and other Courts (c). Afterwards the crown, in favour of the church, transferred to

the prelates : invested the prelates with this branch of the prerogative; for, it was said, none could be found more fit to have such care and charge of the transitory goods of the deceased, than the Ordinary, who all his life had the cure and charge of his soul (d). The goods of the intestate being thus vested in the Ordinary, as trustee (e), to dispose of them in pios usus, it has been said that the clergy took to themselves, (under the name of the church and poor,) the whole residue of the deceased's estate, after the partes rationabiles of the wife and children had been deducted, without paying even his lawful debts and charges thereon : until by stat. Westm. 2, (13 Edw. I. c. 19), it was enacted that the Ordinary should by stat.

Westmr. 2. be bound to pay the debts of the intestate as far as his goods Ordinary

bound to pay extended, in the same manner that executors were bound in

debts of intes. case the deceased had left a Will (f). However, in Snelling's tate:

ante,

(c) 2 Black. Comm. 494 ; see

P. 254, (d) Graysbrook v. Fox, Plowd. 277. Hensloe's case, 9 Rep. 39, a. There are, however, some authorities to show that the granting of administration and probate of Wills were originally of ecclesiastical cognisance; but the better opinion seems to be in accordance with Lord Coke's statement, in Hensloe's case.

Much learning on this subject may be found in C. B. Gilbert's argument, in Marriott v. Marriott, Gilb. Rep. 203. S. C. I Stra. 666; and in Bacon's Abridgment, tit. Executors, (E.) 1. See also Swinburne, 7th edition, by Mr. Powell, p. 772, note. 2 Fonbl. Eq. 313 ; Com. Dig. tit. Administrator, (A.) tit. Administration (B.) 6. 4 Burn. Eco. Law, 291, Philli

more's edition. Dyke v. Walford,
5 Moo. P. C. 434. S. C. 6 Notes
of Cas. 309,

(e) The clergy had never, at any
time, in this country, by law, any
beneficial interest in the property
of intestates, but merely the right
or duty of jurisdiction and admin-
istration, and the right of posses-
sion for the latter purpose : Dyko
v. Walford, 5 Moo. P. C. 434. S. C,
6 Notes of Cas. 309.

(f) 2 Black. Comm. 495: and sec the argument of Pollexfen in Palmer v. Allicock, 3 Mod. 59. The 32nd article of the Magna Charta extorted from King John, expressly provides against these abuses ; but it is a curious fact, and one which strongly marks the influence of the papal power in England at that period, that this article was wholly

case, it was resolved that, if the Ordinary took the goods into possession, he was chargeable with the debts of the intestate at common law, and that the stat. West. 2, was made in affirmance of the common law (g). But though the Ordinary was (either at common law, or by force of this statute,) liable to the creditors for their just and lawful demands; yet the residuum, after payment of debts, remained still in his hands, to be applied to whatever purposes the conscience of the Ordinary should approve. The fla

The flagrant abuses of which power occasioned the Legislature to interpose, in order to prevent the Ordinaries from keeping any longer the administration in their own hands, or those of

their immediate dependents: and therefore the statute of 31 Edw. III. 31 Edw. III. st. 1, c. 11, provides, that “In case where a man stat. 1, admi. nistration to he dieth intestate, the Ordinaries shall depute of the next and granted to the next and most most lawful friends of the dead person intestate to administer lawful friends ; his goods: which persons so deputed shall have action to whence originated adminis- demand and recover, as executors, the debts due to the said trators.

deceased intestate, in the King's Court, to administer and dispend for the soul of the dead; and shall answer also, in the King's Court, to others to whom the said deceased was holden and bound, in the same manner as executors shall answer. And they shall be accountable to the Ordinaries as executors be in the case of testament, as well as of the time past as the time to come.”

This is the original of administrators, as they at present stand (h). They are the officers of the Ordinary appointed by him in pursuance of the statute (i), and their title and authority are derived exclusively from the Ecclesiastical Judge, by grants which are usually denominated letters of administration. It remains to consider to which of the

omitted in the Magna Charta of
Hen. III. : Note to Warwick v.
Greville, 1 Phillim. 124, by the
learned reporter.

(9) 5 Rep. 82, b. See also Hens-
loe's case, 9 Rep. 39, b., where Lord
Coke lays down the same law, and

cites several authorities in support
of it. See also Snellings v. Norton,
Cro. Eliz. 409. Com. Dig. Admi-
nistrator, (A.)

(1) 2 Black. Comm. 495.
(0) Ibid.

several Spiritual Courts the jurisdiction of granting admi- In which of the

Spiritual nistration belongs in each particular case of intestacy. Courts the On this head it may be sufficient to state, that all the

grant of admi.

nistration authorities that have been cited, and the observations that should be ob

tained. have been made, in the second chapter of the fourth book of this Treatise, respecting the proper Ecclesiastical Court wherein to obtain probate ; with regard to the archbishop's prerogative, by reason of bona notabilia ; and the consequences of resorting to the Diocesan Court, when a prerogative probate is the proper one, and vice versa, are equally applicable to the subject of obtaining letters of administration.

SECTION II.

What may be done by an Administrator before Letters of

Administration are granted.

mence an

It has been shown that an executor may perform most of Generally an

administrator the acts appertaining to his office, before probate (k). But cannot act be

fore letters : with respect to an administrator, the general rule is, that a party entitled to administration can do nothing as administrator before letters of administration are granted to him ; inasmuch as he derives his authority, not like an executor from the Will, but entirely from the appointment of the Ordinary (1)

Thus, though an executor may commence an action before he cannot comproving the Will, and it is sufficient if he has probate in action : time for his declaration, the letters of administration must issue before the commencement of a suit at law by an administrator; for he has no right of action until he has obtained them (m). He may, however, file a bill in Chancery before but may file a (k) Ante, p. 256.

Wooldridge v. Bishop, 7 B. & C. (1) Wankford v. Wankford, 1 406. An administrator with the Salk. 301, by Powys, J.

Will annexed has no more right, (m) Martin v. Fuller, Comberb. in this respect, than any other ad371. Com. Dig. Administration, ministrator: Phillips v. Hartley, 3 B. 9. 1 Salk. 303, by Powell, J. C. & P. 121.

bill :

VOL. I.

ΑΑ

he has taken out letters of administration, and it will be sufficient to have them at the hearing (n). But the bill must

allege that they are already obtained (o). A release by an So if an executor releases before probate, such act will administrator before letters

bind him after he has proved the Will (p); but if a man not binding releases and afterwards takes out letters of administration,

it will not bar him; for the right was not in him at the time

of the release (q). Assignment or So though an executor may assign a term for years of the surrender by administrator testator, before probate, yet an assignment by an adminisbefore letters

trator before letters, is, it seems, of no validity (r). Again, not valid.

if the deceased was a tenant from year to year, a surrender of this leasehold interest cannot be made by a next of kin before taking out letters of administration (s).

In Doe v. Glenn (t), the lessee of premises, under a condition of re-entry if the rent should be in arrear twenty-eight days, died in bad circumstances : his brother administered de son tort; and agreed with the landlord to give him possession, and suffer the lease to be cancelled, on his abandoning the rent, which was twenty-eight days in arrear: The brother afterwards took out letters of administration : And it was held, that his agreement as administrator de son tort did not conclude him as rightful administrator, nor give a right of possession to the landlord who had entered under the agreement, but who had not made demand of the rent

(n) Fell v. Lutwidge, Barnard.
Chanc. Cas. 320, by Lord Hard-
wicke, who observed that it was
different at law. See also S. P., as
to the relation of the letters obtained
after bill filed, Humphreys v. Hum-
phreys, 3 P. Wms. 351, by Lord
Talbot, C. Bateman v. Margerison,
6 Hare, 496. But see Simons v.
Milman, 2 Sim. 241.
Howells, 2 Hare, 353. Ante, p.
262, note (a).

(0) Humphreys v, Ingledon, 1
P. Wms. 753. Moses v. Levi, 3
Y. & Coll. 359, 366.

(P) Ante, p. 256.

(9) Middleton's case, 5 Co. 28, b. S. P. by Walmsley, Sergeant, arguendo, in Leeke v. Grevell, Moor. 119. S. P. Barefoot v. Barefoot, Palm. 411. S. P. by Holt, C. J. in Whitehall v. Squire, 1 Salk, 295. S. C. Holt, 45.

(r) 3 Preston on Abst. 146. See Bacon v. Simpson, 3 Mees. & W. 87, per Parke, B.

(8) Rex v. Great Glenn, (Inhabitants of), 5 B. & Adol, 188.

(t) 1 Adol. & Ell. 49. S. C. 3 N. & M. 839.

Jones v.

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