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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 (2).

Where the residuary legatee survives the testator, and the represenhas a beneficial interest, his representative has the same residuary leright to administration cum testamento annexo, as the resi- satee bias toe

right. 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.

() 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 r. Baker, 1 Cas. temp. Lee, 341.

(8) 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.

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). No mandamus Although it is the practice of the Spiritual Court, grounded lies to compel a grant of ad- on the principle above stated, to grant administration to the ministration to a residuary

residuary legatee, yet, as he has no legal right to it under legatee. 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 If the residuary legatee declines, it is usual to grant legatee declines, adminis. administration cum testamento annexo to the next of kin : tration usually granted to next

But it is clear, that when he has no interest, he may be of kin :

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. 2 Cas. temp. Lee, 414. 306. Rous v. Noble, 2 Vern. 249. () West v. Willby, 3 Phillim,

(2) Hutchinson v. Lambert, 3 381. See Mayhew v. Newstead, Add. 27. Coussmaker v. Cham- 1 Curt. 593, in which case the exeberlayne, 2 Cas. temp. Lee, 243. cutor and residuary legatee having

(y) Rex v. Bettesworth, 2 Stra. assigned ; his interest to trustees 956. But where the same person for the benefit of his creditors, adis both next of kin and residuary ministration with the Will annexed legatee, neither law nor practice was granted to two of the trustees, will warrant a refusal to grant ad- he having been first cited. ministration cum testamento annexo (a) Prerog. Jan. 1811: cited by to such person, when the executors Sir John Nicholl, in 3 Phillim. renounce: Linthwaite v. Galloway, 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 but he may be

excluded if he was excluded, the estate being insolvent, and gave the has no interest. administration to the creditor (c). If the executor fails to take probate, and there is no If there is no

residuary leresiduary legatee, the next of kin are entitled to admi- gatee, the next

of kin is ennistration cum testamento annexo (cl). If the next of kin titled ; if the decline it, such administration may be granted to a

decline, it legatee (e) or to a creditor (f); but notice must be given be granted to a

legatee or creo the application of the legatee or creditor to the next ditor, upon of kin (9).

la all these cases, where a party has a prior title to a What citations gran, he must be cited before administration is committed are necessary

before grants to any other person (1). Therefore the executor, if there be cum testamento one, must be cited before a grant to a residuary legatee (i), a resicuary legatee before a grant to a specific legatee, and

next of kin




(b) Bit, unless in cases where grandmother, she being nearly the next of kin has no interest in ninety years of age, and incapathe propety, a creditor cannot be ble: In re Hinckley, 1 Hagg. 477. allowed to contest the right to (e) If there be a legatee for life, administraion. Ante, p. 384, n. (r),

and a legatee substituted, the 388. Ant a residuary legatee, practice is to prefer the former. who has reounced, may retract But the Court will depart from its his renuncition and claim the practice, when, were it to be administratio in preference to a followed, a question of construccreditor, thogh the estate is tion of the Will would, in effect, alleged to be eeply insolvent: In be determined, and will make such the goods of W ters, 2 Robert. 142. a grant as will leave the question S.C. 7 Notes ocas. 380.

v. Nicholls, 2 (c) Lord Manfield, in the Arch- Robert. 399. bishop of Cantrbury v. House, (f ) Kooystra v. Buyskes, 3 PhilCowp. 140, said, hat “ no next of lim. 531. Snape v. Webb, 2 Cas. kin ever struggle for the adminis- temp. Lee, 411, tration of an insorent estate, with (9) 3 Phillim. 531. Com. Dig. an honest view.”

Administrator, (B. 6.) See also (d) Kooystra v.Juyskes, 2 Phil- Woolley v. Green, 3 Phillim. 314. lim. 531. Adminstration with a (h) In the goods of Barker, 1 Will annexed, in hich there was Curt. 592. Ante, p. 389. no executor nor reduary legatee, (i) See Le Briton v. Le Quesne, was decreed to twi aunts of the 2 Cas. temp. Lee, 261, as to the deceased, legatees isthe Will, and citation of an executor who has daughters of the ext of kin, a already proved the Will in a court

open : Brown

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 admi. nistration 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 (1). 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 name

against a residuary legatee (m). Administration

When the executor resides out of the jurisdiction, adnito attorney of nistration cum testamento annexo may be granted to ancher

person under a letter of attorney from the executor fæ 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 its effect :

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 Itter of it is revoc

attorney is revocable; and when the executor revokes it able.

and desires probate, the Court is bound to gnnt it to



him (p).

Consequence of the return of the executor.

On a late occasion, administration, with the Wil annexed, had been granted for the use and benefit of tle executor, then at sea, to his attorney: The executor havng returned to England, and being desirous of probate, and 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
where administration is required
by the residuary legatee, in order
to recover a debt within the juris-

(k) 3 Bac. Abr. 41, tit. Execu-
tors, (E. 8.)

(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 v Wallis, 1 Cas. temp. Lee, 402.

as administrator,'') had been sworn as executor: And he prayed that the administration should be declared to have ceased and expired, and that probate should be granted to him: The application, in respect to the letters of administration, was objected to in the Registry, on the ground that in some similar cases, the administration had been expressly revoked: In support of the motion, it was urged that the administration, having been rightly granted, ought not to be revoked: A revocation which was unnecessary might possibly be injurious; for it might render some of the adminis

; trator's acts void : and would certainly be inconvenient: for the probate would be considered at the Stamp Office as an original, and consequently probate duty required to be paid as for an original grant, and the duty, already paid on the administration, could only be recovered upon a special application to the commissioners, supported by affidavit; whereas, if the administration were declared to have ceased and expired, the probate would pass at the Stamp Office upon a free stamp: The Court (Sir John Nicholl) declared the administration cum testamento annexo to have ceased and expired ; and directed that, in future, grants, durante absentiá, to attorneys, should be limited “for the use and benefit of resident at

and until the executor (or the party entitled to the administration) should duly apply for, and obtain, probate or administration” (9) It may here be observed, that a person who is entitled to The executor

is not allowed probate as executor cannot be allowed to take out adminis

to take admitration cum testamento annexo (notwithstanding the incon- nistration cum venient effect which the taking probate may in some cases annexo. have, by reason of continuing the chain of representation to some other party whose executor the testator happens to be). For if a person be entitled to a grant in a superior character, the Court will not make that grant to him in an inferior character (r).

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9) 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. 4-15.

() In the goods of Bullock, 1 Robert. 275.

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