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dispense with the citation or consent of the party having the prior claim (6).


Who are incapable of being Administrators.

A widow, or next of kin, who would otherwise be entitled, may be incapable of the office of administrator on account of some legal disqualification.

It will be shown, in a subsequent part of this Treatise, to whom, upon such an event, the administration is to be committed (c).

The incapacities of an administrator not only extend to those persons who have already been enumerated as disqualified for the office of executor, as non compotes mentis, popish recusant convicts (d), persons denying the Christian religion to be true (e), but comprise attainder of treason or felony or other lawful disability (f), outlawry (g), and bank. ruptcy (h). But it is no incapacity to be an administrator that the next of kin is an alien (i).

If the next of kin be a minor, administration must be granted to another person during his minority; which


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(6) In the goods of Rogerson, 2
Curt. 656. In the goods of South-
mead, 3 Curt. 28. In the goods of
Widger, 3 Curt. 55. The Court
granted administration to the sister
of a bachelor intestate, upon a
proxy of renunciation from the
mother (a married woman) with-
out her husband joining in it, she
living separate from her husband,
and all right to the estate and
effects of the deceased having been
conveyed to her under a deed of
separation : In the goods of Har-
dinge, 2 Curt. 640.

(c) See post, Pt. I. Bk. v, Ch. III.

(1) Hensloe's case, 9 Co. 39, b.; For the statute binds the Ordinary to grant administration to the lawful friends of the deceased.

(9) 1 Roll. Abr. 908. Bac. Abr. Exors. (G.) Toller, 93.

(h) Hills v. Mills, 1 Salk. 36. Com. Dig. Admor. (B.) 6. Ante,

p. 374,

() Com. Dig. Admor. (B.) 6. Upon this subject, see ante, p. 199.

species of administration will hereafter be considered separately (k). But on a late occasion, administration, limited to the receipts of dividends in the English funds, was granted to a minor residuary legatee, the wife of a minor, both subjects of and resident in Portugal, on a certificate being produced that by the law of Portugal she was entitled (1).

Coverture is no incapacity for the office of administrator : Feme covert. Therefore, if a feme covert be next of kin to the intestate, administration shall be granted to her (m). But she cannot take administration without the consent of her husband (n), inasmuch, among other reasons, as he is required to enter into the administration bond, which she is incapable of doing. Yet if it can be shown that the husband is abroad, or otherwise incompetent, a stranger may join in the security in his stead (o). In either case the administration is committed to her alone, and not to her jointly with her husband: otherwise, if he should survive her, he would be administrator, contrary to the meaning of the Act (p).

In Da Rosa v. De Pinna (9), a married woman prayed administration to her mother and sister, and was opposed by another sister: The judge of the Prerogative decreed administration to pass under seal to the married woman, who was sworn administratrix: The sister appealed, and in the Delegates the married woman gave a proxy to renounce her right to the administration, in order to prejudice her

(k) Post, Pt. 1. Bk. v. Ch, III. ♡ III.

(1) In the goods of the Countess of Da Cunha, 1 Hagg. 237.

(m) Com. Dig. Admor. (B.) 6. Ibid. Admor. (D.)

(n) See Bubbers v. Harby, 3 Curt. 50, in which case a motion for administration with the Will annexed to the attorney of a residuary legatee, a married woman, upon her proxy alone, her husband refusing to join, was rejected.

(0) Toller, 91.

(P) Anon. Style, 74. S. C. semble, by the name of Wood v. Brown, Aleyn. 36. Toller, 91. If it were committed to them jointly during the coverture it might perhaps be good, because, if committed to the wife alone, the husband for such period may act in the administration with or without her assent: Aleyn, 36.

(9) 2 Cas. temp. Lee, 390.

husband; the husband intervened, and prayed that her proxy might be rejected: The Court was of opinion, that on decreeing the administration to the wife, an interest was vested in her husband which she could not by any subsequent act deprive him of, and therefore rejected her proxy of renunciation.


Of the mode of granting Letters of Administration, and the

Form thereof.

By what in strument or form.


Administration is generally granted by writing under seal. It may also be committed by entry in the registry, without letters sub sigillo : But it cannot be granted by parol (r).

In letters of administration, the style of jurisdiction, as well as the name of the Ordinary, should be inserted (s).

The following is the usual form of the grant to a next of kin in the Prerogative Court of Canterbury.

“Charles, by Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, to our wellbeloved in Christ, A.B., the lawful (nephew] and one of the next of kin of C.D., late of in the county of deceased, greeting: Whereas the said C.D. (as is alleged) lately died intestate, having, whilst living, and at the time of his death, goods, chattels, or credits, in divers dioceses or jurisdictions; by reason whereof the sole ordering and granting administration of all and singular the said goods, chattels, and credits, and also the auditing, allowing, and final discharging the accompt thereof, are well known to appertain only and wholly to us and not to any inferior Judge : We being desirous that the said goods, chattels, and crelits, may be well and faithfully administered, applied, and disposed of according to law, do therefore, by these presents grant full power and authority to you, in whose fidelity we

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confide, to administer and faithfully dispose of the said goods, chattels, and credits, and to ask, demand, recover, and receive whatever debts and credits, which, whilst living, and at the time of his death, did any way belong to his estate, and to pay whatever debts the said deceased, at the time of his death, did owe, so far as such goods, chattels, and credits, will thereto extend, and the law requires : You having been already sworn, well and faithfully to administer the same, and to make a true and perfect inventory of all and singular the said goods, chattels, and credits, and to exhibit the same into the registry of our Prerogative Court of Canterbury, on or before the

next ensuing: and also to render a just and true account thereof on or before the

which shall be in the year of our Lord one thousand eight hundred and And we do by these presents ordain, depute, and constitute you administrator of all and singular the goods, chattels, and credits, of the said deceased. Given at London, the

day of

in the year of our Lord one thousand eight hundred and and in the

year of our translation. Sworn under £ and that the deceased died the day of

A.D.” (t).

day of

day of

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By a modern regulation of the Prerogative Court of Time of grant

ing letters. Canterbury, where letters of administration are applied for after the expiration of five years from the death of the intestate, the delay must be satisfactorily accounted for by an affidavit made by the administrator or other competent person (u). In the case of a recent death, if a party swears that he is one of the next of kin, the grant will issue without inquiry as to the knowledge of the other next of kin (x).

(1) The time of the death is re- (u) Gwynne on Probate and Lequired to form part of the oath, gacy Duties, p. 10. See In the and to be inserted in the margin goods of Darling, 3 Hagg. 561. of the grant, by a late rule of the Ante, p. 338, note (). . Prerogative Court of Canterbury, (x) 3 Hagg. 565. See the reason, ante, p. 338, note(k).

Retracting renunciation.

Administrator's oath.

The practice is, that letters of administration shall not issue until after the expiration of fourteen days from the death of the intestate : unless for special cause (as that the goods would otherwise perish, or the like,) the Judge shall think fit to decree them sooner (y).

Where a party entitled to the grant of administration has renounced, such renunciation may be retracted before the administration has passed the seal (2).

The oath to be made by the administrator, on his taking out letters of administration, is usually in this form:

“ You shall swear, that you believe A. B., deceased, died (a) without a Will (6), and that you will well and truly administer all and every the goods of the said deceased, and pay his debts so far as his goods will extend ; and that you will exhibit a true, full, and perfect inventory of the said goods of the deceased, and render a true account of your administration into the Court of C., when you shall be thereunto lawfully required. So help you God" (c).

Besides this oath, it is enacted by stat. 55 Geo. III. c. 184, s. 38 (the Stamp Act), that no ecclesiastical person shall grant letters of administration, without first receiving from the person applying for them, or some other competent person, an affidavit whether the estate and effects of the deceased, in respect of which administration is to be granted, are under the value of a certain sum to be therein specified (d).

(y) 1 Ought. 323, tit. 219, s. 1, Ecc. L. 235, Phillimore's edition. n. (a).

(b) A party having died insane, (z) West v. Wilby, 3 Phillim. leaving a Will, which upon the 379. See M‘Donnell v. Prender- face of it exhibited marks of ingrast, 3 Hagg. 212. Ante, p. 248. sanity, the Court granted admin

(a) By order of the Prerogative istration of the effects of the deCourt of Canterbury the time of ceased as dead intestate, but dithe death is required to form part rected the Will to be deposited in the of the oath and to be inserted in Registry: In the goods of Bourget, the margin. And certain forms 1 Curt. 591. See also Palmer v. are prescribed for commissions for Dent, 2 Robert. 284. Ante, p. 299. swearing administrators residing (c) 1 Ought. 323, 324, tit. 219, in the country and for the oath to s. 1. 4 Burn. E. L. 286, 8th edit. be administered. See 3 Burn's (d) See post, Pt. 1. Bk. VII.

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