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 IN 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 continued to exercise for some time by his own ministers of justice, and probably in the County Court, where matters of gative of the crown: (a) 2 Black. Comm. 494. (b) 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 be bound to pay the debts of the intestate as far as his goods extended, in the same manner that executors were bound in case the deceased had left a Will (f). (c) 2 Black. Comm. 494; see ante, 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 by stat. Westmr. 2. Ordinary bound to pay debts of intes However, in Snelling's tate: more's edition. Dyke v. Walford, (e) The clergy had never, at any (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 31 Edw. III. stat. 1, admi case, it was resolved that, if the Ordinary took the goods But though the 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 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. st. 1, c. 11, provides, that "In case where a man nistration to be 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 demand and recover, as executors, the debts due to the said 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." whence origi nated adminis trators. 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. (g) 5 Rep. 82, b. See also Hens- cites several authorities in support (h) 2 Black. Comm. 495. several Spiritual Courts the jurisdiction of granting admi- SECTION II. What may be done by an Administrator before Letters of It has been shown that an executor may perform most of the acts appertaining to his office, before probate (k). But 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). Generally an cannot act be administrator fore letters: mence an 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. (1) Wankford v. Wankford, 1 Salk. 301, by Powys, J. (m) Martin v. Fuller, Comberb. 371. Com. Dig. Administration, B. 9. 1 Salk. 303, by Powell, J. VOL. I. Wooldridge v. Bishop, 7 B. & C. A A bill: A release by an administrator before letters not binding. before letters not valid. 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 (0). So if an executor releases before probate, such act will bind him after he has proved the Will (p); but if a man 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 administrator before letters, is, it seems, of no validity (r). Again, 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 (p) Ante, p. 256. (q) 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. (s) Rex v. Great Glenn, (Inhabitants of), 5 B. & Adol. 188. (t) 1 Adol. & Ell. 49. S. C. 3 N. & M. 839. |