1.

letters of administration may be granted to the executors of a creditor (s).

creditor of next

The necessary course is, when a creditor applies for citation by administration, to issue a citation for the next of kin in particular and all others in general, to accept or refuse letters of administration, or show cause why administration should not be granted to such creditor (t). In point of practice it is not uncommon, upon a decree issuing to show cause why administration should be committed to A. B., a creditor, to substitute C. D., another creditor, on the day assigned for the appearance of the parties interested, and to suffer administration to pass to C. D., though not the person in whose name the decree originally went (u). The next of kin may appear to the citation, and will then be preferred to the creditor: but if the next of kin has unduly delayed to take out administration, (as where six months elapse from the death of the intestate,) the creditor will be allowed his costs (x). If there are no next of kin, as in the case of an intestate bastard, a citation should issue to the Crown; that is, it should seem, the king's proctor must be cited (y).

Administration will not be granted to a creditor on a general citation on the Royal Exchange, without particular notice, when it is known where the party first entitled resides (z); and if he is abroad, the decree must be served on his agent, or an affidavit must be made that he has no agent in this country (a). On a late occasion (b), where administration to a person long dead was prayed by a cre

one creditor preferred to

the rest, upon terms:

ditor, and there had been no personal service on the next of kin, (who had no known agent in this country,) the Court required full information as to the debt and the cause of the delay, and that notice should be given to the next of kin in the West Indies: And the Judge (Sir J. Nicholl) said that he wished it to be considered as a general rule, that where a next of kin was as accessible as in this case, a notice should be sent to the party (c).

In cases where a general citation is sufficient, the practice is to serve the decree on one of the pillars of the Royal Exchange, and the decree itself is made returnable into Court on a certain subsequent day (d). In a case where one of the parties entitled in distribution was a private in the army, being with his regiment in India, the decree had been served as above, and the Court was moved to dispense with the formality of awaiting the return of the process, on the ground that the necessity for a representation to the deceased was urgent, and that the party cited being in India, it was impossible he could appear: But the Court refused the application, and observed that he might possibly return before the time expired; but the object was to give notice to his friends, and to any agent he might have in this country (e).

The Court does sometimes grant administration to more creditors than one, but it prefers that one should be fixed upon (ƒ): and on the petition of the others, it will compel the one selected to enter into articles, to pay debts of equal degree, in equal proportions, without any preference of his own (g). Before granting letters of administration to a creditor, the

(c) As to citing next of kin residing in Scotland, see King v. Gordon, 2 Cas. temp. Lee, 139.

(d) Hawke v. All persons in general, 2 Cas. temp. Lee, 263.

(e) Woolley v. Green, 3 Phillim. 314. See In the goods of Robinson, 3 Phillim. 512, as to the difference, in effect, of a service viis et modis, and a personal service.

(f) Harrison v. All persons in

general, 2 Phillim. 249. See, as to the preference of one creditor to another, by reason of the superior nature, or larger amount of the debt, Kearney v. Whitaker, 2 Cas. temp. Lee, 324. Carpenter v. Shelford, ibid. 502.

(g) Fonblanque on Eq. Book 4, Pt. 2, c. 2, s. 2, n. (m). Toller, 106. 4 Burn. Ecc. Law, 366, Phillimore's edition.

amount of pro

perty, &c. :

Court always requires an affidavit as to the amount of the affidavit of the property to be administered: unless where there has been a personal service of the usual citation on the parties entitled to the administration in the first instance (h). An affidavit is also necessary of the amount of the debt, and that the creditor has no other security (i).

mortgagee :

The Court will grant administration to a bond creditor, creditor a who has also a mortgage on the leasehold property: but if the grant were prayed by a mortgagee of real property, there might be a reason why the administration should not pass to him, because it would give him a priority, and exclude simple contract creditors (k).

considered a

A person who was joint assignee of the estate of a bank- who is to be rupt with the deceased, out of which the latter had applied creditor: a sum of money to his own use, for which he had not accounted at the time of his death, is not a creditor to the estate of the deceased so as to be entitled to pray administration to him (1).

On a late occasion (m), where a partner died leaving the partnership accounts unsettled, an eminent civilian (n), before whom a case was laid by the direction of Sir John Leach, V. C., gave his opinion that a person to whom one of the surviving partners had assigned his share of the profits of the partnership, had not such an interest in the effects of the deceased partner, as would entitle him to be considered a creditor, and in that character to cite the next of kin to accept or refuse administration of his effects; but that the Ecclesiastical Court would grant a limited administration to a person nominated by him, for the purpose of substantiating proceedings in Chancery, on the refusal of the next of kin after citation, and upon shewing the necessity for such a representation.

(h) Martineau v. Rede, 2 Add.

455.

(i) Atkin v. Ford, 3 Hagg. 193. (k) Roxburgh v. Lambert, 2 Hagg. 557. But see now stat. 3 & 4 W. 4, c. 104, Post, Pt. 1v. Bk. 1.

Ch. II. § I.

(1) Snape v. Webb, 2 Cas. temp.
Lee, 411.

(m) Cawthorn v. Chalie, 2 Sim.
& Stu. 129.
(n) Dr. Jenner.

next of kin cannot oust a

creditor admi

nistrator during his life:

a creditor in possession of

administration may oppose an

interest or contest a Will.

When admi

In the case of Aitkin v. Ford (o), administration, as to a creditor, was decreed to the mother of an intestate, who had been advanced by her; the father, though alive, having been divorced in the Commissary Court of Scotland, and married again. In Hudleston v. Hudleston (p), administration to the effects of a wife who had lived with her husband until her death, was granted to an antenuptial creditor of the wife (q).

When a creditor administrator has been duly appointed, the next of kin cannot, during his lifetime, take the administration from him: but upon his death they may come in, and claim administration de bonis non (r).

Although before administration granted, a creditor cannot deny an interest or oppose a Will, yet when he has obtained administration, he has a right to maintain it against the executor or the next of kin; and it is not to be revoked on mere suggestion (s). And where administration has been granted to a creditor, and a Will is afterwards produced, he is entitled to contest it in the same manner that the next of kin might have done, without being subject to costs (t).

For want as well of creditors, as of next of kin, desirous nistration may to take out administration, the Ordinary may grant it to any

be granted to

a person without interest:

person at his discretion (u). In a case, where the brother

(0) 3 Hagg. 193.

(p) 2 Robert. 424.

(9) A decree had been personally served on the husband, but no appearance was given.

(r) Skeffington v. White, 1 Hagg. 702, 703.

(s) Elme v. Da Costa, 1 Phillim. 173. Menzies v. Pulbrook, 2 Curt. 851. Ante, p. 303. And he is not bound to bring in the administration till an admissible allegation has been brought in, either propounding a Will, or propounding an interest: Dabbs v. Chisman, 1 Phillim. 159, 160.

(t) Norman v. Bourne, 1 Phillim. 160, note (c) to Dabbs v. Chisman. 2 Curt. 851. Ante, p. 305.

(u) See the judgment of Sir H. Jenner Fust, 1 Robert. 274, 275, In the goods of Chanter. Davis v. Chanter, 14 Sim. 212. The general rule seems to be that a grant of full letters of administration will never be made to any one who is not either a creditor or next of kin. But perhaps the Court might make such a grant to a nominee of its own.

and only next of kin renounced, the Court granted adminis tration to the nephew, although he had no interest (x). Or the Ordinary may, ex officio, grant to a stranger letters ad colligendum bona defuncti, to gather up the goods of the deceased. In a late case, where a sole next of kin refused to take administration, the Court decreed letters of administration to a person who had been her agent, limited "to the collection of all the personal property of the deceased, and giving discharges for the debts which might have been due to the estate, on the payment of the same, and doing what further might be necessary for the preservation of the property aforesaid," and to "the safe keeping of the same, to abide the directions of the Court (y)." Or the Ordinary may take the goods of the deceased into his own hands, to pay the debts of the deceased in such order as an executor or administrator ought to pay them; but he, or the stranger who has letters ad colligendum, cannot sell them, without making themselves executors of their own wrong: The Ordinary has only an authority, and no such power himself, and therefore he cannot give that power to any other (2).

In concluding this subject, it may be expedient to advert to an established rule of the Ecclesiastical Court, viz. that wherever a party has a prior right to administer, the Court requires that he should be cited or consent, before it will grant administration to any other person. And the rule will not be relaxed, notwithstanding the party who has the right has no interest in the property in respect of which the grant of administration is sought (a). But in cases. where the Court has a discretion, viz., in cases where the party entitled in priority is so entitled by the practice of the Court, and not by statute, the Court will sometimes

(z) In the goods of Keane, 1 Hagg. 692. See also, In the goods of Blagrave, 2 Hagg. 83.

(y) In the goods of Radnall, 2 Add. 232.

(z) 11 Vin. Abr. 87. Exors. (K.) pl. 19.

(a) In the goods of Barker, 1 Curt. 592. In the goods of Currey, 5 Notes of Cas. 51.

letters ad col

ligendum.

Citation or consent of party having a prior right requisite

before adminis

tration granted

to another.