Imágenes de páginas

whether deter

of age.

Also it has been holden, that if such administrator obtains judgment he may bring scire facias against the bail, and they cannot object that the infant is of full age: for the recognizance being to the administrator himself by name, though he be administrator durante minore ætate, yet he may have scire facias against the bail (n).

In the case of Jones v. Basset (o), it seems to have been Suits in equity laid down, that a suit in equity is put an end to by the infant's mined by the coming of age, and that the infant must begin anew; but that minor's coming where the administrator durante minore ætate has proceeded to a decree and account, the infant will be allowed to go on (p).

But according to the modern practice, upon the determination of an administration pendente minore ætate, a suit commenced by the temporary administrator may be added to, and continued by supplemental bill(q): For in this case there is no change of interest which can affect the question between the parties, but only a change of the person in whose name the suit must be prosecuted: and if there has been no decree, the suit may proceed, after the supplemental bill has been filed, in the same manner as if the original plaintiff had continued such, except that the defendants must answer the supplemental bill, and either admit or put in issue the title of the new plaintiff : But if a decree has been obtained before the event on which such a supplemental bill becomes necessary, though the decree be only a decree nisi, there must be a decree on the supplemental bill, declaring that the plaintiff in that bill is entitled to stand in the place of the plaintiff in the original bill, and to have the benefit of the proceedings upon it, and

substituted in lieu of scire facius, by the Common Law Procedure Act (1852), see post, Pt. 11. Bk. III.

Ch. IV.

(n) Bac. Abr, ubi supra. Emilies v. Weeks, 2 Keb. 877. Embrin v. Mompesson, 2 Lev. 37: but, by Hale, C. J., in this case, if after the infant come of age, he had sued out execution upon the principal judg

ment, it might have been a ques-
tion, whether that ought to be sued
out by him or the infant.

(0) Prec. Chanc. 174.

(P) See also Coke v. Hodges, 1 Vern. 24.

(9) Stubbs v. Leigh, 1 Cox, 133. Cary's Rep. 31, edit. 1820. Mitf. Pl. 64, 4th edit.

to prosecute the decree, and take the steps necessary to

render it effectual (r). The infant on

It was held that if the administrator durante minore ætate
coming of age brought an action, and while it was pending the infant came of
could not bring
journeys ac- age, he could not bring a writ by journeys accounts; because

in no case could such a suit be but by the same person, not
only in representation, but strictly and truly the same

person (s). Effect of ter

With respect to the effect of the determination of such an mination of minority on

administration upon executions issued by the administrator
execution during his office, a case occurred in Mich. Term, 28 & 29
issued by
administrator. Eliz. (t), where an administrator durante minore ætate of an

infant executor had judgment in an action of debt brought
by him for money due to the testator, and the defendant
being taken in execution, the infant executor came of full age :
It was moved that he might be discharged out of custody,
because the authority of the administrator was determined,
and he could not acknowledge satisfaction or make acquit-
tances, &c.: But it was held by Windham and Rhodes,
Justices, that the recovery and judgment were still in force,

though the party might be relieved by an audita querela (u). What acts an

Formerly an opinion prevailed, that an administrator
durante, &c.,

durante minore ætate could not sue; for he was considered
as a mere servant or bailiff (x). But it is now established,
not only that he may bring actions to recover the debts due
to the deceased (y), but also that he may bring trover for his
goods; because he has more than the bare custody of them,
for he has the property itself (2). And it is laid down in a

may do.

(r) Mitf. Pl. 64, 4th edit.

(8) Elstobb v. Thoroughgood, 1 Salk. 393. S. C. 1 Lord Raym. 283. Kinsey v. Heyward, 1 Lord Raym. 433. See, as to the nature of the writ of journeys accounts, post, Pt. v. Bk. I. Ch. I.

(1) Anon. Godb. 104. 3 Leon. 278.

(u) In most cases where the remedy of audita querela was formerly

resorted to, the Court will now re-
lieve in a summary way on motion.

(0) Anon. Owen. 35. Anon, 3
Leon. 278. Thackston v. Hulm-
locke, 2 Keb. 30.

(y) Piggot's case, 5 Co. 29, a. Finch's case, 6 Co. 67, b. Com. Dig. Admon. (F.)

(3) Sethe v. Sethe, Roll. Abr. Exors. (M.) pl. 2. Com. Dig. Admon. (F.)

[ocr errors]

modern book of authority (a), that an administrator during the minority of one entitled to administration has, for the time, all the power and authority of an absolute administrator ().

So though an administrator durante minore ætate has but a limited and special property in the estate of the deceased (c), and no interest or benefit in the testator's or intestate's estate, but in right of the infant (dl), yet he may do all acts which are incumbent on an executor, and which are for the advantage of the infant and the estate of the deceased (e); and therefore he may sell bona peritura as a bailiff may, such as fat cattle, grain, or any thing else which may be the worse for keeping; and he may sell goods for the payment of debts (f).

( So he may assent to a legacy, if there are assets for the payment of debts (g). Again, he may receive debts due to the deceased, and he may discharge and acquit them (h). So he may be sued for the debts due from the deceased; and if he give his bond for any of such debts, he may retain goods to the value (i): and if an action be brought against him, and the administration determine pending the action, he ought to retain assets to satisfy the debt which attached on him by the action (k). Likewise he may retain for his own debt (1).

But he cannot do any thing to the prejudice of the infant ; and therefore he cannot sell the goods of the deceased any farther than they are necessary for payment of debts, nor can

(a) Com. Dig. Admon. (F.)

(6) See also Roll. Abr. Exors. (M.) pl. 1.

(c) Roll. Abr. Exors. (M.) pl. 5.

(d) Grandison v. Dover, Skinn. 155. Bac. Abr. Exors. (B. 1.) In the civil law he is considered but in the nature of a curator: Bac. Abr. Exors. (B. 1.)

(e) Bac. Abr. Exors. (B. 1.) Roll. Abr. Exors. (M.)

(f) Bac. Abr. Exorg. (B. 1.) 2. Prince's case, 5 Co, 29, b. S. C. Roll. Abr. Exors. (M.) pl. 5. S.C. nomine Price v. Simpson, Cro. Eliz. 719, 2 Anders. 132.

Com. Dig.

Admon. (F.)

(9) Bac. Abr. Exors. (B. 1.) 2. Prince's case, 5 Co. 29, a. Anon, 1 Freem. 288.

(1) Com. Dig. Admon. (F.)

(1) Briers v. Goddard, Hob. 250. Com. Dig. Admon. (F.)

(k) Sparks v. Crofts, Comberb. 465, by Lord Holt. But it has been doubted whether the action would not abate : Ford v. Glanvile, Moor, 462. S. C. Goldsb. 136. S. C. cit. 1 Lutw. 342, post, p. 430.

(1) Roskelley v. Godolphin, T. Raym. 483. Com. Dig. Admon. (F.)

he otherwise sell a term for years during the minority of the infant (m).

In Sir Joyle Finch's Case (n) a distinction was taken, that if the administration is granted specially, ad opus et commodum dc., et non aliter nec alio modo, there such an administrator cannot grant a lease; but where the administration is committed generally, he shall not only have an action to recover debts and duties and be liable to all actions, but also he may make leases (0), which will be good till the infant attains his age (p). And it is observed in Wentworth's Office of an Executor (9), that "if the testator himself, making an infant executor, doth also appoint another to be his executor during his nonage, expressing it to be only for the benefit and behoof of the infant executor, I doubt whether this temporary executor stands any whit restrained from what pertains to the power of absolute executor: but there may be, perhaps a difference between him to whom the owner of the goods commits the government of them, though but for a time and in a special manner, and the administrator

so especially made by the Ordinary.” In an action

If an administrator durante minore ætate brings an action, by an adminis. he must aver in the declaration that the infant is still under trator durante,

(m) Bac. Abr. tit. Exor. (B. 1.) 2.
(n) 6 Co. 67,

(0) See also Bac. Abr. Leases,
(I. 7.) The distinction is thus
stated in Touchstone, p. 490: “The
administrator durante minore ætate
is sometimes general, i. e. when
his administration is granted unto
him without any words of limita-
tion; and sometimes he is special,
i. e. when his administration is
granted to him ad opus et usum of
the infant only. In the first case,
he hath as large a power as another
administrator hath ; and therefore
he may assent to a legacy, albeit
there be not assets to pay debts :

of the goods or
chattels of the deceased, or give

them away, or the like, as another administrator may do. But in the last case, it is otherwise ; for such a special administrator can do little more than the Ordinary himself: and therefore he may not sell any of the goods or chattels of the deceased, except it be in case where they are like to perish, for funeral expenses or for payment of debts, nor may he assent to a legacy where there is not assets to pay debts,” &c.

(p) Bac. Abr. tit. Leases, (I. 7.) And some hold that such a lease would be good after, till the executor avoided it by actual entry: Ibid. 6 Co. 67, b.

(9) P. 393, 14th edition.

[ocr errors]

averred that the infant is

age (i. e. in all cases since the stat. 38 Geo. III. c. 87, s. 16, &c., it must be that he is within the age of twenty-one years); because it is a matter within his conuzance, and which entitles him to the within age : action (r). However, the defendant must take advantage of this omission by way of plea or demurrer, and cannot object to it after he has joined issue with the plaintiff on another point, which admits the continuance of his authority (s).

So a general averment that the infant is “under age,” without saying under what age, has been held sufficient after verdict (t), and to be cured by pleading over (u). And since the Common Law Procedure Act (1852), it should seem that an objection to such an averment could not be sustained at all. It is true that in the case of Beal v. Simpson (.c), the Court seemed to consider, that such an allegation with respect to an infant executor would be bad on general demurrer: But it must be recollected, that when that case was decided, the administration determined on an infant executor attaining the age of seventeen; and Treby, C. J., observed, that “under age ” shall be intended under twenty-one (y). But if an action be brought against such an administrator, Secur, in an

action against the plaintiff in his declaration need not aver that the infant him. is still under age; for this is a matter more properly within the conusance of the defendant, and, if his power be determined, he ought to show it (2). It is a good plea in abatement, where a defendant is Plea, by such

administrator, charged as administrator generally, that administration was if charged as

administrator granted to him durante minore ætate only: But such a plea

generally. must aver that the infant is still living and under age; for though the defendant was a special administrator at first, yet if that special administration were determined, as by the

(r) Piggot's case, 5 Co. 29, a. Walthall v. Aldrich, Cro. Jac. 590. Slater v. May, 6 Mod. 304.

(8) Bac. Abr. Exors. (B. 1.) 2.

(1) Wells v. Some, Cro. Car. 240. Owen v. Holden, 2 Sid. 60.

(u) Beal v. Simpson, 1 Lord Raym. 408.

(2) 1 Lord Raym. 108.
(y) 1 Lord Raym. 410.

(3) Carver v. Haselrig, Hob.
251. Walthall v. Aldrich, Cro.
Jac. 590. Croft v. Walbanke, Yelv.
128. Beal v. Simpson, 1 Lord
Raym. 409, by Powell, J.

« AnteriorContinuar »