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Form of letters The form of the grant of letters of administration cum
“We being desirous that the said goods, chattels, and credits, 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 confide, to administer and faithfully dispose of the said goods, chattels, and credits, according to the tenor and effect of the said Will : and first to pay the debts of the said deceased, which he did owe at the time of his death, and afterwards the legacies contained and specified in the said Will, 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 accompt thereof. 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 (with the said Will annexed)."
Of Administration de bonis non.
This subject may be treated with reference, 1st, to the death of an executor : 2ndly, to the death of an administrator.
1. With respect to the consequences of the death of an executor. If a sole executor happens to die, without having proved the Will, the executorship, as there has before been occasion to observe (s), is not transmissible to his executor,
(s) Ante, p. 223, 263,
but is wholly determined, and administration cum testamento annexo must be committed to the person entitled, according to the rules pointed out in the preceding section.
When the administration is granted under such circumstances, although the executor may have administered in part by disposing of the testator's effects, &c., yet the administration shall not be de bonis non administratis, but an immediate administration : because, although the acts done by the executor are good (t), the administering is an act in pais, of which the Spiritual Court cannot take notice (u).
If one of several executors dies before or after probate, no interest is transmissible to his own executor, but the whole representation survives to his companion (v). Where such surviving executor, or where a sole executor, dies after probate, having made a Will, appointing his own executor, the entire representation of the original testator will be transmitted to him (x). But where such surviving executor, where sole or or sole executor, dies after probate, intestate, then no cutor dies
surviving exeinterest is transmissible to his own administrator (y): but after probate,
intestate, there administration of another sort becomes necessary, which must be admiis called administration de bonis non, that is, of the goods bonis non : of the original testator left unadministered by the former executor (2)
So if the original testator dies abroad, or in the colonies, so where the and his executor proves the Will there, and then dies, points his own having appointed his own executor, who proves the latter executor if tho Will in the Ecclesiastical Court here, it has been held, that was not
proved in this the executor of the executor does not represent the first country : testator: But that in order to constitute such a personal representative here, administration de bonis non must be obtained in the Ecclesiastical Court in this country (a).
(t) See ante, p. 257.
(u) Wankford v. Wankford, 1 Salk. 308, by Holt, C. J.
(v) Ante, p. 223, 224.
The rule is the same, though the original Probate was limited : In
the goods of Beer, 2 Robert. 349.
() Ante, p. 222.
(-) Ante, p. 222. Tingrey v. Brown, 1 Bos. & Pull. 310.
(a) Twyford v. Trail, 7 Sim. 92. Ante, p. 227.
80 where one Again, if there are several executors, and one alone of several executors proves,
the Will, and the rest renounce, upon the death of and the rest
him who has proved, no interest is transmissible to his renounce and he who has executor: but the representation survives to the co-execuproved, dies:
tors, who may retract their former renunciation, and assume the executorship (b); but if they persist in refusing to act, the sort of administration just mentioned becomes
necessary. Who is entitled This administrator de bonis non will, when appointed, to administration de bonis be the only representative of the party originally deceased. non cum testa. Such administration will evidently be committed cum testa
mento annexo, and will be granted to the person entitled
In a modern case, administration durante minoritate
decreed to her (d). Administration It has been said, upon the authority of Limmer v. Every, de bonis non not necessary
as reported by Croker (e), that where an executor dies, when there is an administra- having appointed an executor, who is a minor, and an admition durante
nistrator durante minoritate is appointed, he has no authority minoritate of an executor of to intermeddle with the effects of the original testator, but an executor.
an administration de bonis non must be granted (f). How
(6) Arnold v. Blencowe, 1 Cox,
(c) See ante, p. 405.
(e) Cro. Eliz, 211.
(†) 3 Bac. Abr. 13 Exors. (B. 1.) Toller, 118.
quences of the
ever, as the case is reported by Leonard (g), the point decided was merely that such an administrator should sue as administrator of the first testator : And in a later case (), it was held, on an application for a prohibition, that although an administrator of an executor is not an administrator to the first testator, yet an administrator durante minore cetate is in loco executoris, and may be sued as the executor of an executor may (i).
2ndly. With respect to the consequences of the death of 2. Consean administrator, or of one entitled to administration. It death of an adhas already been shown, that if a party who, as next of kin ministrator, or
of one entitled to the intestate at the time of his death, was entitled to to administraadministration, dies before letters of administration are obtained, his representative is entitled to the grant in preference to one who has no beneficial interest in the effects, although he may have become next of kin at the time the grant is required (h).
Where administration has been granted to two, and one of one of dies, the survivor will be sole administrator (I); for it is not nistrators : like a letter of attorney to two, where by the death of one, the authority ceases, but it is an office analogous to that of executor, which survives (m). Upon the death of such of a surviving
or sole admi. surviving administrator, or of a sole administrator, in order uistrator : to effect a representation of the first intestate, the Ordinary, whether the administrator died testate or intestate, must appoint an administrator de bonis non ; for an administrator is merely the officer of the Ordinary, prescribed to him by act of Parliament, in whom the deceased has reposed no trust; and therefore on the death of the administrator, no
(9) 4 Leon, 58, nomine Limver v. Evorie.
(h) Anon. 1 Freem. 288.
(i) See also Norton v. Molineux, Hob. 246; and Mr. Smirke's note, in his edition of Freeman, p. 288.
(k) Ante, p. 382.
(1) Hudson v. Hudson, Cas. temp. Talb. 127, decided by Lord
Talbot, after hearing civilians. Eyre
(m) Adam v. Buckland, 2 Vern.
Who is entitled to administration de bonis non on the death of the original admi. nistrator :
authority can be transmitted by him to his executor or
It remains to be considered who, upon the death of the
The Ecclesiastical Judges have on several occasions laid down, that in all that regards the obligation of the statutes of administration on the Court, in the grant of administration, no distinction exists between an original and a de bonis non administration (o).. And in Kindleside v. Clearer, the Common Law Judges Delegates expressed the same opinion (p). Accordingly, upon the death of an original administrator, a person who was next of kin at the time of the death of the intestate, has been regarded as entitled, under the statute of Hen. VIII., to the de bonis non grant, in preference to the representative of the original administrator, or to the representative of any other next of kin at the time of the death; and hence, in the case where a husband takes out administration to his wife, and dies, the Spiritual Courts for a long time considered themselves bound by the statute (in contravention of convenience, and of the general principle that the right of administration shall follow the right of property), to commit administration de bonis non of the wife, if required, to the next of kin of the wife at the time of her death, as having an absolute statutable right; although the beneficial interest in her effects be in the representatives of the husband (?). But the practice has lately been altered in this respect: And the rule now
(n) 2 Black. Comm. 506.
(0) Dr. Bettesworth, in Kindleside v. Cleaver, 1 Hagg. 345. S. C. 2 Hagg. Appendix, 169. Dr. Hay, in Walton v. Jacobson, 1 Hagg. 346.
(P) See 2 Hagg. Appendix, 170.
(9) Kindlesidev. Cleaver, 1 Hagg. 345. S. C. 2 Hagg. Appendix, 169.
See ante, p. 359. Yet instances