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according to the common Law, or proceeded by ejectment according to stat. 4 Geo. II. c. 28. Yet cases may certainly be found, where the letters of Instances of

valid acts, administration have been held to have a relation to the death though done

before adof the intestate, so as to give a validity to acts done before ministration the letters were obtained. Thus if a man take the goods of granted : the intestate as executor de son tort, and sells them, and afterwards obtains letters of administration, it seems the sale is good (u). So in Whitehall v. Squire (x), where an intestate had delivered to the defendant a horse to depasture, and the plaintiff, before administration granted, desired the defendant to bury the intestate decently, who thereupon buried him, and the plaintiff agreed that the defendant should keep the horse in part satisfaction of the charges; and afterwards the plaintiff took administration, and brought trover for the horse; it was held by Dolben and Eyre, Justices, (Holt, C. J. dissentiente,) that the plaintiff was bound by the agreement, and could not maintain the action. The principle, however, of this decision appears to have been, that the plaintiff, being a particeps criminis in the very act of which he complained, should not be permitted to recover upon it against the person with whom he colluded (y).

Other instances, of the relation of the letters of adminis

(u) Kenrick v. Burgess, Moor. 126. Godolph. Pt. 2, c. 8, s. 5, p. 99, 4th edition.

(x) 1 Salk. 295. S. C. Holt, 45. 3 Salk. 161. 3 Mod. 276. Carth. 103. Skin. 274,

(y) Mountford v. Gibson, 4 East, 446, by Lord Ellenborough. In Stewart Administrator v. Edmonds, Sittings after Hil. Term, 1828, coram Abbott, C. J., the intestate had sent some plate to the defendant, a silversmith, for safe custody, and was at the same time indebted to him in a sum exceeding the value of the plate: The plaintiff, after the death of the intestate, and before he obtained letters of ad

ministration, assented to the de-
fendant retaining the plate, in
satisfaction of his debt; he after-
wards took out administration, and
brought trover for the plate : For
the defendant, Whitehall v. Squire
was cited; but the C. J. held that
the assent was not binding upon
the administrator. See further,
Accord., 8 Exch. 305, by Parke, B.
See also Parsons v. Mayesden, 1
Freem. 152, where it was laid down,
that if a man takes the goods of the
deceased by the consent of him to
whom administration is afterwards
granted, this is no defence, if he is
sued as executor de son tort.

tration to the death of the intestate, will be found in a

subsequent part of this Treatise (z). only when

But it may here be observed, that it has been lately laid done for the benefit of the down that such relation exists only in those cases where the estate.

act done is for the benefit of the estate: And accordingly, in a case where the widow of an intestate had remained in the possession of her husband's property for some time after his decease, and the intestate's son had not interfered in any way with the property, which was seized under a writ of fi. fa. issued against the widow, and the son afterwards took out administration, it was held that there was no evidence from which the administrator's assent to the widow's taking the property could be implied: And by Parke, B., even if there had been, the estate was not bound by it, as the act to which

the assent was given did not benefit the estate (a). Security Where a question was pending in the Ecclesiastical Court, demanded by the Ecclesiasti- as to a party's. right to a grant of letters of administration, cal Court from and such party possessed himself of a portion of the goods parties possessing the assets of the deceased before he had established his title, Sir G. before adminis. tration Lee decreed that he should give such security for the safety granted.

of the goods as the Court should approve (b).

(z) Post, Pt. 11. Bk. 1. Ch. I. letters of administration, see ante, As to the right, founded on mere possession, to bring actions against (a) Morgan v. Thomas, 8 Exch.302. wrong doers, without producing (6) Jones v. Yarnold, 2 Cas. CHAPTER THE SECOND.

temp. Lee, 570.

p. 259.

OF THE GRANT OF GENERAL ORIGINAL ADMINISTRATION IN

CASES OF TOTAL INTESTACY.

SECTION I.

nearest and

To whom General Administration is to be granted. It has already appeared that the stat. 31 Edw. III. stat. 1, Stat. 31 Edw.

III., adminis. c. 11, provides, that in cases of intestacy, “the Ordinaries tration to be shall depute of the next and most lawful friends of the dead granted to the person intestate to administer his goods” (a). The power of most lawful the Ecclesiastical Judge is a little more enlarged by the statute 21 Hen. VIII. c. 5, s. 3, which provides, that in case Stat. 2 Hen. any person die intestate, or that the executors named in any the widow or

VIII. c. 5, to testament refuse to prove it, the Ordinary shall grant admi- next of kin, or

both at disnistration, " to the widow of the deceased, or to the next of cretion. his kin, or to both, as by the discretion of the same Ordinary shall be thought good :” and the same section goes on to enact, that “where divers persons claim the administration as next of kin, which be equal in degree of kindred to the testator, or person deceased, and where any person only desireth the administration, as next of kin, where indeed divers persons be in equality of kindred as is aforesaid, that in every such case the Ordinary to be at his election and liberty to accept any one or more making request where divers do require the administration.”

Before inquiring into the rights of those persons expressly Exclusive

right of the pointed out in the above statutes, it is proper to consider the husband to be

the wife's adright of the husband to be the administrator of his wife.

ministrator : This right belongs to the husband exclusively of all other

(a) Ante, p. 332.

persons (6) and the Ordinary has no power or election to grant it to any other (c). The foundation of this claim has been variously stated: By some it is said to be derived from the statute 31 Edw. III. on the ground of the husband's being “the next and most lawful friend” of his wife (d): while there are other authorities, which insist that the husband is entitled at common law, jure mariti, and independently of the statutes (e). But the right, however founded, is now unquestionable ; and is expressly confirmed by the statute 29 Car. II. c. 3, which enacts, that the Statute of Distributions, (22 & 23 Car. II. c. 10, “shall not extend to the estate of femes covert, that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the making of the said Act."

This right of administration to the wife is not an ecclesiastical, but a civil right of the husband, though it is a right

to be administered in the Ecclesiastical Court (f). where the mar

Though a marriage be voidable, by reason of some canonriage was void- ical disability (such as being within the prohibited degrees band is entitled of consanguinity or affinity, or on account of corporal infirto administra

mities) yet the husband is entitled to the administration of the wife, unless sentence of nullity was declared before her death (g). But where the marriage took place under one of

tion :

(6) Humphrey v. Bullen, 1 Atk. 459.

(c) Sir George Sand's case, 3 Salk. 22.

(d) 3 Salk. 22. Elliott v. Gurr, 2 Phillim. 19.

(e) Com. Dig. Administrator, (B. 6.) Watt v. Watt, 3 Ves. 247. Others have supposed that the husband is entitled, as next of kin to the wife: Fortre v. Fortre, 1 Show. 351. Rex v. Bettesworth, 2 Stra. 1111, 1112; but it seems clear that the husband is not of kin to his

wife at all: Watt v. Watt, 3 Ves. 244,

(5) By Sir J. Nicholl, in Elliott v. Gurr, 2 Phillim. 19, 20.

(9) Elliott v. Gurr, 2 Phillim, 19. By stat. 5 & 6 W. IV. c. 54, (s. 1, Royal Assent, 31st August, 1835,) all marriages, celebrated before the passing of this Act, within the prohibited degrees of affinity, shall not be annulled for that cause, unless by suit in an action depending at the time of such passing. And by sect. 2, al

the civil disabilities, (such as prior marriage, want of age, idiotcy, and the like,) the contract of marriage is absolutely void ab initio ; and consequently the husband cannot be entitled to take administration. Thus in a modern case, secus, where it

was void : where it appeared that the woman was of unsound mind at the time of the celebration of the marriage, the husband was refused administration of her effects, and condemned in costs (h).

It should seem that a man convicted of bigamy, in respect husband conof his marriage with the intestate, may, nevertheless, pro- bigamy: pound his interest as the lawful husband of the deceased, in a suit touching the administration of her effects in the Ecclesiastical Court: and may succeed in such suit on proof shown of his not having been guilty of the crime, notwithstanding his said conviction be pleaded and proved (i).

In case the wife dies intestate, and afterwards the husband by the old dies without having taken out administration to her, the husband died

practice if the Ecclesiastical Court has considered itself bound by the before he ob.

tained adminisstatute, to grant administration to the next of kin of the wife, tration, it was

granted to the and not to the representatives of the husband (k). But such wife's next of administrator shall be considered in equity as a trustee for the representatives of the husband (1).

In a modern case (m), Sir John Nicholl adverted to the inconvenience of this rule of granting administration to those who have no beneficial interest, and its defiance of all principles : and added that he felt inclined, if the point should

kin :

marriages, hereafter celebrated, 2 Hagg. Appendix, 169. Contra, within the prohibited degrees of Bacon v. Bryant, 11 Vin. Abr. 88, consanguinity or affinity, shall be pl. 25. Hargrave's Law Tracts, absolutely null and void.

475. See also the other cases re(k) Browning v. Reane, 2 Phil- ported in the Appendix to 2 Haglim. 69.

gard. (i) Wilkinson v. Gordon, 2 Add. (1) Cart v. Rees, cited in Squib 152. See 1 Phillipps on Evidence, v. Wyn, 1 P. Wms. 381. Hum336, et seq. 7th edition.

phrey v. Bullen, 1 Atk. 458. S.C. (k) Reece v. Strafford, 1 Hagg. 11 Vin. Abr. 86. Elliott v. Collier, 347. Wellington v. Dolman, ibid. 3 Atk. 526. S. C. 1 Ves. Sen. 15. 344. S. C. nomine Hole v. Dolman, 1 Wils. 168. 2 Hagg. Appendix, 165. Kindle- (m) In the goods of Gill, 1 Hagg. side v. Cleaver, 1 Hagg. 345. S. C. 341.

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