therefore, where a party claims as, or derivatively from, a residuary legatee, the burden of proof lies on such party(p). Hence, where the husband appointed his wife executrix and residuary legatee, and he and his wife were drowned in the same ship, the Court granted administration to the next of kin of the husband, on the ground that the next of kin of the wife had not proved her survivorship (q). resi Where the residuary legatee survives the testator, and has a beneficial interest, his representative has the same right to administration cum testamento annexo, as the duary legatee himself, and is therefore entitled to administration in preference to the next of kin (r), or to legatees (s). Thus, if an executor be also residuary legatee, and die before probate, or intestate before he has fully administered the estate, administration cum testamento annexo shall be granted to his personal representative, and not to the next of kin of the first testator (t). Hence, also, though generally speaking, if a feme covert executrix dies intestate, her husband cannot take out administration de bonis non to the first testator, yet if she be also residuary legatee, he may Fawkener v. Jordan, ibid. 327. As to substituted trustees, see Cresswell v. Cresswell, 2 Add. 347. (p) The next of kin, as to personalty, stands in the same position as the heir-at-law as to realty: 4 De G. M. & G. 633. (1) Taylor v. Diplock, 2 Phillim. 261. In the goods of Selwyn, 3 Hagg. 748. In the goods of Murray, 1 Curt. 596. See post, Pt. III. Bk. III. Ch. II. § v. Satterthwaite v. Powell, 1 Curt. 705. Sillick v. Booth, 1 Y. & Col. C. C. 121. Underwood v. Wing, 4 De G. M. & G. 633. (r) Jones v. Beytagh, 3 Phillim. 635. Wetdrill v. Wright, 2 Phillim. 243. See also Thomas v. Baker, 1 Cas. temp. Lee, 341. (s) In re Thirlwall, 6 Notes of Cas. 44. (t) Ysted v. Stanley, Dyer, 372, a. ex relatione Doctor Drury (Judge of the Prerogative Court). Sparke v. Denne, W. Jones, 225. Farrington v. Knightley, 1 P. Wms. 553, by Lord Parker. S. C. Prec. Chanc. 567. Went. Off. Ex. 82, 14th edition. Godolph. Pt. 1, c. 20, s. 2. Where the testator made his wife residuary legatee for life, and substituted his daughter after her death, and the widow proved the Will, and then both she and her daughter died; it was held that the personal representative of the daughter had a right to administration cum testamento annexo, in preference to the representative of the mother: Wetdrill v. Wright, 2 Phillim. 243. the represenresiduary legatee has the tative of the same right. No mandamus If the residuary legatee de tration usually granted to next of kin : do so (u). But it should seem that where the residuary legatee is a mere trustee, it is the general rule of practice, upon his death, to grant the administration, not to his representative, but to such person or persons as have the beneficial interest in the residuary estate (x). Although it is the practice of the Spiritual Court, grounded on the principle above stated, to grant administration to the residuary legatee, yet, as he has no legal right to it under the statute, the Ordinary is not bound (as in the case of the sole next of kin of a complete intestate) to grant it to him. Thus, where the testator appointed two executors by his Will, and left the residue of his estate to his son, the executors renounced, and the son moved for a mandamus to obtain administration cum testamento annexo: But the Court refused to grant the writ, on the ground that none of the statutes mentioned the residuary legatee; and Lord Hardwicke adverted to a case in Chancery, before Lord Macclesfield, between Wheeler and the Archbishop of Canterbury, where it was held that this sort of administration is not within the statute (y). If the residuary legatee declines, it is usual to grant cliues, adminis- administration cum testamento annexo to the next of kin : But it is clear, that when he has no interest, he may be excluded, and the administration granted to a person who has an interest in the effects, e. g. a creditor (z). In Furlonger v. Cox (a), the deceased left a widow and a son; (u) Richardson v. Seise, 12 Mod. But where the same person 2 Cas. temp. Lee, 414. (z) West v. Willby, 3 Phillim. 381. See Mayhew v. Newstead, 1 Curt. 593, in which case the executor and residuary legatee having assigned his interest to trustees for the benefit of his creditors, administration with the Will annexed was granted to two of the trustees, he having been first cited. (a) Prerog. Jan. 1811: cited by Sir John Nicholl, in 3 Phillim. 381. the widow was sole executrix and universal legatee: She renounced probate, and the son contended for the administration against a creditor (b); the Court held that the son was excluded, the estate being insolvent, and gave the administration to the creditor (c). no If the executor fails to take probate, and there is residuary legatee, the next of kin are entitled to administration cum testamento annexo (d). If the next of kin decline it, such administration may be granted to legatee (e) or to a creditor (f); but notice must be of the application of the legatee or creditor to the of kin (g). a but he may be excluded if he has no interest. If there is no residuary legatee, the next titled; if the of kin is en next of kin decline, it may be granted to a given legatee or cre next ditor, upon notice. La all these cases, where a party has a prior title to a gran, he must be cited before administration is committed to any other person (h). Therefore the executor, if there be one, must be cited before a grant to a residuary legatee (i), a residuary legatee before a grant to a specific legatee, and (b) Bit, unless in cases where the next of kin has no interest in the property, a creditor cannot be allowed to contest the right to administraion. Ante, p. 384, n. (r), 388. And a residuary legatee, who has reounced, may retract his renuncition and claim the administratio in preference to a creditor, tho gh the estate is alleged to be eeply insolvent: In the goods of Wters, 2 Robert. 142. S. C. 7 Notes oiCas. 380. (c) Lord Manfield, in the Archbishop of Canterbury v. House, Cowp. 140, said, hat "no next of kin ever struggle for the administration of an inso/ent estate, with an honest view." (d) Kooystra v.3uyskes, 2 Phillim. 531. Adminstration with a Will annexed, in hich there was no executor nor reduary legatee, was decreed to two aunts of the deceased, legatees irthe Will, and daughters of the nxt of kin, a (f) Kooystra v. Buyskes, 3 Phillim. 531. Snape v. Webb, 2 Cas. temp. Lee, 411. (g) 3 Phillim. 531. Com. Dig. Administrator, (B. 6.) See also Woolley v. Green, 3 Phillim. 314. (h) In the goods of Barker, 1 Curt. 592. Ante, p. 389. (i) See Le Briton v. Le Quesne, 2 Cas. temp. Lee, 261, as to the citation of an executor who has already proved the Will in a court What citations are necessary before grants cum testamento annexo. Administration so on, through all the gradations of priority. So if there is a testamentary disposition without an executor, it has been. laid down that the party, in whose favour the disposition is made, must cite the next of kin, before he can have administration cum testamento annexo (k). The Court will grant administration, with the Will annexed, to one of two universal legatees, a decree with intimation having issued in the name of the other, who is since dead (). So administration, with the Will annexed, in which there was no executor, may be granted to one of two legatees a decree with intimation having issued in their joint names against a residuary legatee (m). When the executor resides out of the jurisdiction, adnito attorney of nistration cum testamento annexo may be granted to another executor. its effect: it is revocable. Consequence of the return of the executor. person under a letter of attorney from the executor for his use and benefit (n). It should seem that a Will thus proved by the attorney of the executor is the same thing as if actually proved by himself. And, consequently, the chain of representation is not broken by his death, if he has himself appointed an executor (o). Again, the latter of attorney is revocable; and when the executor revokes it and desires probate, the Court is bound to gnnt it to him (p). On a late occasion, administration, with the Wil annexed, had been granted for the use and benefit of the executor, then at sea, to his attorney: The executor having returned to England, and being desirous of probate, ad the administration with the Will annexed having been rought in by the attorney, (with the usual affidavit, "tha no action at law, or suit in equity, had been brought by r against him out of the jurisdiction, in a case (k) 3 Bac. Abr. 41, tit. Execu- (1) Law v. Campbell, 1 Hagg. 55. (m) Pickerin v. Pickering, 1 Hagg. 480. Se ante, p. 385. (n) See ante,). 383. (0) In the pods of Bayard, 1 Robert. 768. S. C. 7 Notes of Cas. 117. (p) Pipon Wallis, 1 Cas. temp. Lee, 402. as administrator,") had been sworn as executor: And he (7) In the goods of Cassidy, 4 Hagg. 360. As to the effect of the death of the executor, see Suwerkrop v. Day, 8 A. & E. 624, post, p. 445. The executor is not allowed to take admi nistration cum testamento annexo. |