established, on the principle that the grant ought to follow the interest, is, that the administration will be granted to the representatives of the husband, unless it can be shown. that the next of kin of the wife are entitled to the beneficial interest (r). de bonis non Again, it has been held that the statutes only regard the next of kin at the time of the death of the intestate, and not the next of kin at the time a second grant is wanted; and therefore when the next of kin, who were so at the time of the deceased, are dead, the Court have power, independent of the statute, to grant administration de bonis non, at their discretion according to their own rules (s). In the guidance of which discretion, the established principle is (as in the case of administration cum testamento annexo), that if there are no peculiar circumstances, the administration shall be committed to him who has the greatest interest in the effects of the original intestate (t). Thus, in Savage v. Blythe (u), Administration the intestate died, leaving a brother and several nephews and nieces: Administration was granted to the brother, and at the end of the year he distributed, taking the securities of the deceased upon himself: He afterwards died, leaving the securities due to the original deceased outstanding; and effects. having made a Will, and appointed an executor: A decree was taken out against the nephews to show cause why administration de bonis non should not be granted to the executor of the brother administrator: The nephews appeared, and prayed administration as next of kin under the statute: But Sir Wm. Wynne held that the statutable right was confined to the next of kin at the time of the death, and granted the administration de bonis non to the executor of the deceased administrator, on the ground that the interest was clearly in him. In the subsequent case of (r) Fielder v. Hanger, 3 Hagg. 769. In the goods of Pountney, 4 Hagg. 290. Ante, p. 360. (s) Cardale v. Harvey, 1 Cas. temp. Lee, 179. (t) But the Court is not obliged to grant to the largest interest: 1 Cas. temp. Lee, 177. (u) 2 Hagg. Appendix, 150. granted to the executor of detrator having ceased adminis the greatest interest in the Citation of next of kin before grant of de bonis non. Almes v. Almes (x), the same Judge again granted similar administration, under nearly the same circumstances, upon the same grounds; and mentioned the case of Lovegrove v. Lewis (y), decided by Sir George Hay, and affirmed by the Delegates, where the administration was granted to the executor of the original administrator, to the exclusion of those who were next of kin at the time of the grant (z). So in the instance of administration de bonis non to the effects of the wife, after the death of the husband administrator, if the persons who, at the time of her death, were her next of kin, are dead, it has always been held that the Court may exercise its discretion (a). The proposition, however, that if all who were next of kin at the time of the death of the intestate, are dead, then the representative of such next of kin, being entitled to the beneficial interest, is also entitled to administration de bonis non, must, it appears, be understood with this limitation, viz. that a person originally in distribution is preferred to the representative of the next of kin (b). It has already been observed, that upon the death of a creditor administrator, a party who was next of kin at the administration time of the death of the intestate, may come in and claim administration de bonis non (c). And though all the next of kin at the time of the death are dead, it should seem that no grant of administration de bonis non, however limited in its object, can be obtained after the termination of the creditor administration, without citing those who are next of kin at the time the grant is required. Thus, in Skeffington v. White (d), the intestate died in 1790, leaving two sisters entitled in distribution: They renounced, and administration (x) 2 Hagg. Appendix, 155. (z) See also In the goods of (a) By Sir John Nicholl, In the goods of Gill, 1 Hagg. 344. (b) See the Appendix to 2 Hagg. p. 157. According to the general practice, a party having a direct interest is preferred to those entitled in a representative character: In the goods of Middleton, 2 Hagg. 61. (c) Ante, p. 388. was decreed in 1791, to a creditor, who administered the estate till 1806, when he died: The sisters did not come in and take administration de bonis non; and from that time no further representation was taken out till 1827, when an administration de bonis non was granted, without citing the then next of kin (the son of one of the sisters who were both dead), limited to assign certain leasehold property of the deceased, not severed in his lifetime, but mortgaged during the original creditor administration: In March, 1828, Sir Lumley Skeffington, the then next of kin, in whom all the beneficial interest in the deceased's estate was vested, obtained a decree to show cause why the latter administration should not be revoked, on the ground of his not having been cited when the limited grant was made, and on a suggestion that such grant had been surreptitiously obtained, and that there was a surplus belonging to the deceased's estate: Sir John Nicholl thought the citation under the circumstances was not necessary, but that Sir Lumley was barred by time, by events, and by his own laches; and that there was no ground for revoking the grant: However, on appeal to the Delegates, the Court pronounced for the appellant, directed a monition to issue to call in the limited administration, and condemned the respondent in costs (e). The following is the usual form of a grant of letters de bonis non, in the Prerogative Court of Canterbury: of administra "William, by Divine Providence, Archbishop of Canter- Form of letters bury, Primate of all England, and Metropolitan, to our well- tion de bonis beloved in Christ, R. L., Esquire, one of the natural and non. lawful children of E. L. (wife of S. L., Esquire), late of deceased, greeting: in the county of Whereas the said E. L. (as is alleged), lately died intestate, having whilst living, and at the time of her death, goods, chattels, or credits, in divers dioceses or jurisdictions; since whose death, administration of all and singular the goods, chattels, and credits of the said deceased was committed and granted to the said S. L., Esquire, the lawful husband of (e) 2 Hagg, 626. VOL. I. EE the said deceased, who after taking such administration upon him intermeddled in the goods, chattels, and credits of the said deceased, and afterwards died, leaving some part thereof unadministered, and not fully disposed of: And 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 goods, chattels, and credits, left unadministered as aforesaid, and to ask, demand, recover, and receive whatever debts and credits which, whilst living, and at the time of her death did any way belong to her estate; and to pay whatever debts the said deceased, at the time of her 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 day of day of next ensuing; and also to render a just and true accompt 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, left unadministered as aforesaid. Given at London the day of hundred and in the year of our Lord one thousand eight year of our translation." in the SECTION III. Besides the administrations already discussed, which extend to the whole personal estate of the deceased, and terminate only with the life of the grantee, it is competent to the Ordinary to grant limited administrations, which are confined to a particular extent of time, or to a specified subject matter. It will be the object of the present and three following sections, to consider this species of grant by the Ecclesiastical Court. Administration durante minore ætate. If the person appointed sole executor, or he to whom, in case of intestacy, the right to administration has devolved under the statutes, be within age, a peculiar sort of administration must be granted, which is called an administration durante minore ætate. In the former case, it is obviously a species of administration cum testamento annexo. sary: If there are several executors, and one of them is of full when necesage, no administration of this kind ought to be granted; because he who is of full age may execute the Will (f). But it has been held differently in the case of several next of kin in equal degree, entitled under an intestacy. In Cartright's case (g), the intestate died leaving four grandchildren whereof one was of age, and the other three were minors; and the administration was contested betwixt her that was of age and the mother and guardian of the other three; and this case was argued at Serjeants' Inn, before the two Chief Justices and the Chief Baron, et al., who granted it to the mother, as guardian to the three durante minore ætate; though it was strongly urged, that she that was of age being capable, and the others incapable, she ought to be preferred: But on the other hand it was laid down, that since the new statute 22 & 23 Car. II. c. 10, which entitled them all to a distribution, the interest of the three preponderated, and therefore that was to be regarded; and they compared it to the case of a residuary legatee who shall be preferred before the next of kin (h). (f) Pigot and Gascoigne's case, Brownl. 46. Foxwist v. Tremain, 1 Mod. 47, by Twisden, J. 4 Burn. E. L. 384, Phillimore's edition. Ante, p. 201, 202. There are some authorities to the contrary: See (g) 1 Freem. 258. Ante, p. 373. |