no mandamus lies to grant it to a particular person. Practice of the Spiritual Court to grant admi nistration to the guardian: distinction between infant and minor : This sort of administration has been frequently held not to be within the statute of 21 Hen. VIII. c. 5. And consequently, it is discretionary in the Ordinary to grant it to such person as he shall think fit (i). Thus, in the case of Rex v. Bettesworth (k), a mandamus was moved for, to be directed to the Judge of the Prerogative Court, to grant administration to one Smith, during the minority of his two infant grandchildren: The Judge had approved of him as a proper person, but insisted on his giving security to distribute the effects in equal proportions among the creditors: The Court were of opinion that the Judge had a discretionary power in granting administration durante minore ætate, and therefore that in this case he might insist upon reasonable or equitable terms, or otherwise refuse administration to the claimant : But they said if a mandamus had been moved for, to grant administration generally, they would have granted it (l). In the exercise of this discretion it is the practice of the Spiritual Court to grant the administration to the guardian whom that Court have a right by law to appoint for a personal estate (m). With respect to the appointment of guardian a distinction exists in the Spiritual Court between an infant and a minor. The former is so denominated, if under seven years of age, the latter from seven to twentyone (n). The Ordinary ex officio assigns a guardian to an infant (0); the minor himself may nominate his guardian, (i) Briers v. Goddard, Hob. 250. Thomas v. Butler, Ventr. 219. West v. Willby, 3 Phillim. 379. (k) 1 Barnard. 370, 425. S. C. Fitzgib. 163. 2 Stra. 892, by the name of Smith's case. (1) The discretionary power of the Spiritual Court is also recognised in the statute 38 Geo. III. c. 87, s. 6. See post, p. 423. (m) Brotherton v. Harris, 2 Cas. temp. Lee, 131: In this case it was held that the guardian appointed by the Ecclesiastical Court was to be preferred to the guardian ap who is then admitted in that character by the Judge (p); but if the minor makes an improper choice, the Court will control it (q). According to the practice of the Prerogative Court, the guardianship is granted to the next of kin of the child, unless sufficient objection to him is shown (r). If a wife be the only next of kin, and a minor, she may elect her husband her guardian, to take the administration for her use and benefit during her minority; but the grant ceases on her coming of age, when a new administration may be committed to her (s). sometimes But there are many instances where the Court has granted the guardian the administration to persons not guardians of the minor, excluded: and refused to grant it to the person nominated by them. Thus in Lovell and Brady v. Cox (t), Lovell and Brady were appointed trustees by the deceased, and his heir, Anne Cox, was executrix and residuary legatee: She was a minor, and the father claimed the administration pendente minoritate: The Court held that it had a discretionary power, refused it to him, and gave it to the trustees (u). So the administration may be granted to creditors, in exclusion of the guardian of the minor, if the estate is insufficient to pay the debts: And in many other cases it has been laid down that the Court is not bound by the choice of the minor (x). Thus where a grandfather, to whom, as the Idian to an infant in ventra de sa mere; Walker v. Carless, 2 Cas. temp. Lee, 560. (p) Rich v. Chamberlayne, 1 Cas. temp. Lee, 134. Fawkner v. Jordan, 2 Cas. temp. Lee, 327. Ozeland v. Pole, Prer. Hil. T. 1787. 4 Burn. E. L. 284. n. (5), Tyrwhitt's edition. (q) 2 Cas. temp. Lee, 330. This is mentioned by Lee, J. in Rex v. Bettesworth, Fitzg. 164, Mich. 4 Geo. II., as being then the course of the Spiritual Court. (r) Toller, 100. In the goods of Ewing, 1 Hagg. 381. (1) Prerog. cited by Sir John Nicholl in West v. Willby, 3 Phillim. 379. (u) See also Appleby v. Appleby, 1 Cas. temp. Lee, 135, where administration cum testamento annexo was granted to a grandmother during the minority of an executor, she being also testamentary trustee, in preference to the mother, whom the minor had chosen guardian. See also Hughes v. Ricards, 2 Cas. temp. Lee, 543. (x) West v. Willby, 3 Phillim. 374. (8) Toller, 92. Administration granted to a minor, a foreigner, enti of his own country. next of kin, the administration durante minoritate would in the ordinary course have passed, was turned eighty, it was granted to an uncle, he giving full justifying security (y). In Havers v. Havers (2), Lord Hardwicke, C., said, that administration durante minore ætate ought not to have been granted to a person who was very poor, though the guardian and next of kin of the infant. In a modern case in the Prerogative Court, the residuary legatee was a minor, married to a husband who was also a tled by the law minor, both being subjects of, and resident in, Portugal: But it appeared that the husband, by reason of his holding a commission in the army, and being married, by the law of Portugal, was considered of full age, and that by her marriage, her disabilities, as a minor, ceased: Under these circumstances, administration with the Will annexed, limited to the receipt of certain dividends in the English funds, was granted to the wife (a). Administration during the incapacity of a widow and minority of her son. When administration durante minore Where an intestate left a widow and infant son, and administration was granted to the widow, who soon after became non compos, and the estate was small and unable to bear the expense of a commission of lunacy, and there were debts owing to it, which were in danger of being lost, if there was no person to receive them; Sir George Lee, without revoking the administration granted to the widow, assigned (upon the renunciation and consent of the grandmother), the infant's aunt to be his guardian, and granted administration to her also, for the use and benefit of the widow and infant, during the incapacity of the widow, and the minority of the infant, if the widow should not sooner recover her senses: And the learned Judge directed the administration to be drawn up in a special form, reciting the above particulars (b). It has already been pointed out (c) that formerly an infant executor was considered capable of the office, on obtaining (y) In the goods of Ewing, 1 (z) Barnard. Chan. Cas. 23. Da Cunha, 1 Hagg. 237. (b) 1 Cas. temp. Lee, 625. the age of seventeen: But now by statute 38 Geo. III. c. 87, s. 6 (d), after reciting that inconveniences arose from granting probate to infants under the age of twenty-one, it is enacted, "That where an infant is sole executor, adminis"tration with the Will annexed shall be granted to the "guardian of such infant, or to such other person as the Spiritual Court shall think fit, until such infant shall have "attained the full age of twenty-one years, at which period, and "not before, probate of the Will shall be granted to him." 66 And by the seventh section it is enacted, "That the person to whom such administration shall be granted, shall "have the same powers vested in him as an administrator "now hath by virtue of an administration granted to him "durante minore ætate of the next of kin." Before this Act there was a distinction between administration granted during the minority of an infant executor and an infant next of kin: inasmuch as in the latter case the administration has always been held to continue in force till the next of kin attained the age of twenty-one (e). It seems agreed, that if administration be granted during the minority of several infants, it determines upon the coming of age of any one of them (f). Thus if there be several infant executors, he who first attains the age of twenty-one shall prove the Will, and may execute it (g). (d) Extended to Ireland, by 58 Geo. III. c. 81, ss. 1, 2. (e) Freke v. Thomas, 1 Lord Raym. 667. 4 Burn. E. L. 384, Phillimore's edition. The distinction was justified on the ground that the authority of an administrator is derived from stat. 31 Edw. III. c. 11, which admits only of a legal construction, and therefore he must be of a legal age before he is competent; while the executor, on the other hand, comes in by the act of the party, and that he should be capable at seventeen was in conformity to other provisions of the spiritual law. Besides the Statute (f) Touchst. 490. Bacon. Abr. (g) 4 Burn. E. L. 385, Phillimore's edition. ætate shall be determined. Scire facias, who shall have it when the minority is ended. It was resolved, according to Lord Coke, by the justices of the Common Pleas in Prince's case (h), that if administration be committed during the minority of an executrix, and she take husband of full age, then the administration shall cease. But this has since been doubted, in the case of Jones v. Lord Strafford (i), where Lord King, C., and Raymond, C. J., strongly inclined against this opinion as reported in Prince's case, the same not being taken notice of by other contemporary Reporters, as 2 And. 132. Cro Eliz. 718, 719, and 3 Leon. 278, in all which books Prince's Case is reported: Besides which it was extrajudicially expressed, the question in the case being only whether such a special administrator could assign over a term for years which belonged to the testator: And it is remarkable that the author of the Office of Executor, after mentioning the proposition as stated in Prince's Case proceeds, "Yet I do a little marvel at these opinions, considering that these things are managed in the Spiritual Court, and by that law (the law spiritual), which intermeddles not with the husband in the wife's case: now by that law, and not our common law, comes in this limit of seventeen years. And I have seen it otherwise reported, in and touching the last point” (j). If administration be granted during the minority of several infants, one of whom dies before he comes of age, this will not determine the administration (k). It seems to be clearly settled, says Chief Baron Gilbert (1), that if an administrator durante minore ætate of an executor brings an action and recovers, and then his time determines, the executor may have scire facias (m) upon that judgment: (h) 5 Co. 29, b. (i) 3 P. Wms. 88. (j) Page 392, 14th edition. (k) Anon. Brownl. 47. Jones v. Strafford, 3 P. Wms. 89, overruling the opinion in Brudnel's Case, 5 Co. 9, a. (1) Bac. Abr. tit. Exors. (B. 1.) 3, vol. 3, p. 18, citing 1 Roll. Abr. 888, 889. Beamond v. Long, Cro. Car. 227. Bearblock v. Read, 2 Brownl. 83. Anon. Godb. 104. Hatton v. Mascue, 1 Keb. 750. Coke v. Hodges, 1 Vern. 25. See also Major v. Peck, 1 Lutw. 342, per Curiam. Anon. 3 Leon. 278. Kempe v. Lawrence, Owen, 134: but vide King v. Death, Brownl. 57, contrà. (m) As to the proceedings now |