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will be granted to compel him so to transfer every thing in his possession acquired in that character (p). Although doubts were entertained on the subject before Power of
administrator the case of Walker v. Woollaston (9), it is now settled, that pendente lite : the administrator pendente lite may maintain actions for recovering debts due to the deceased (r). So where a person, whether he is heir-at-law or next of kin, or any other man whatsoever, keeps possession of the testator's leasehold estate, such an administrator is entitled to bring ejectments for the recovery of the possession (8). But the nature of the authority conferred by such letters of administration is merely to collect the effects (t); and his power does not extend either to vest or distribute them (u). Therefore, even to enable him to lodge money in Court, which he is not called upon to do, he must file a bill (y). And he has no authority to pay legacies; though if paid bonâ fide, he ought to be allowed for them (2).
Such an administrator is not liable to interest upon a balance in his hands, during the pendency of the suit in the Ecclesiastical Court (a). During a litigation in the Ecclesiastical Court for probate A receiver may
be appointed or administration, a Court of Equity will entertain a bill for by the Court the mere preservation of the property of the deceased, till of Chancery,
notwithstandthe litigation is determined, and appoint a receiver, although ing an admi
nistration penthe Ecclesiastical Court, by granting an administration dente lite may
(p) In the goods of Graves, 1 Hagg. 313.
(9) 2 P. Wms. 576. S. C. 2 Stra. 917. Fitzgib. 202, 257. 1 Barnard. B. R. 423, 467. 2 Barnard. 14, 62.
(r) Ibid. Knight v. Duplessis, 1 Ves. Sen. 325. Ball v. Oliver, 2 Ves. & Beam. 97, 98. Gallivan v. Evans, 1 Ball & Beatt. 192.
(8) Wills v. Rich, 2 Atk. 286. Jones v. Goodrich, 10 Sim. 328.
(t) 1 Scho. & Lefr. 254. See also the observations of Sir H. Jenner
Fust in Goodrich v. Jones, 2 Curt.
(u) 1 Ball & Beatt. 192.
(y) Gallivan v. Evans, 1 Ball & Beatt. 192.
(z) Adair v. Shaw, 1 Scho. & Lefr. 254: He has no business to construe the Will; he is only to hand over the assets to the person entitled, or to dispose of them pursuant to the directions of a Court of Equity : Ibid. 255, 256.
(a) 1 Ball & Beatt. 191.
pendente lite, might provide for the collection of the effects(b). And a Court of Equity will appoint a receiver, as well when the litigation in the Ecclesiastical Court is to recall administration or probate already granted, as in a case where no administration has been granted before the application to the Court of Chancery (c). The mere circumstance, however, that there has been a suit instituted in the Ecclesiastical Court to recall the administration or probate already granted, does not give the Court of Chancery jurisdiction to interfere : For if that were so, it is evident that in order to obtain a receiver it would be only necessary to institute a suit in the Ecclesiastical Court (d): But the Court of Chancery will look into the case to see whether, on the whole, such a case is made as justifies the interference of that Court: And if it appears, from all the circumstances, that there is no executor or administrator in existence with the right and power to act as such, and that there is substantially a lis pendens in the Ecclesiastical Court, a receiver may be appointed, notwithstanding there is no ground laid for interference in respect of any improper conduct of the parties (e).
(6) Mitf. Pl. 135, 136, 4th edit. probate or administration; unless King v. King, 6 Ves. 172. Ed- a special case can be made for remunds v. Bird, 1 Ves. & Beam. 542. fusing such appointment: Rendall Atkinson v. Henshaw, 2 Ves. & v. Rendall, 1 Hare, 152. It must Beam. 85. Ball v. Oliver, 2 Ves. sufficiently appear that there is a & Beam. 96. Watkins v. Brent, litigation pending in the Ecclesi1 Mylne & Cr. 102, (overruling the astical Court: Jones v. Frost, 3 distinction taken by Lord Erskine Madd. 1 S. C. 1 Jac. 454. 2 Mylne in Richards v. Chave, 12 Ves. 462.) & Cr. 457, 458. Wood v. Hitchings, 2 Beav. 289. (d) Watkins v, Brent, 1 Mylne Such a suit need not be brought to & Cr. 97. See also Knight v. Dua hearing: Anderson v. Guichard, plessis, 1 Ves. Sen. 324; and a 9 Hare, 275.
MS. case argued on demurrer, (c) Rutherford v. Douglas, 1 Sim. 13th June, 1812, cited in 1 Madd. & Stu. 111, n. (d) to Dew v. Clarke. Chan. 225, n. (1), 2nd edit. Dew Ball v. Oliver, 2 V. & B. 96. Where v. Clarke, 1 Sim. & Stu. 114. no probate or administration has Rendall v. Rendall, 1 Hare, 152, been granted, it is of course to Connor v. Connor, 15 Sim. 598. appoint a receiver, pending a bond Newton v. Ricketts, 10 Beav. 525, fide litigation in the Ecclesiastical (e) 1 Mylne & Cr. 97. Rendall Court to determine the right to v. Rendall, 1 Hare, 152.
The general principle has lately been stated to be that where there is a legal title to receive, the Court ought not to interfere unless where the legal title is abused, or there is proof that it is in danger of being so (f). A receiver may be granted as well where the property is in the hands of the executor named in the Will which is in litigation, as where it is outstanding and likely to be lost : But it must be shown that the amount and disposition of the property is such as to justify the Court in burdening the estate with the expense of a receiver (g).
In Marr v. Littlewood (h), Lord Cottenham granted a receiver, at the instance of an executor, pending a suit in the Ecclesiastical Court to have the probate annulled; the defendant, who was the party impeaching the will and setting up an intestacy, having by her own acts prevented the executor from getting in the assets.
But the bill for the receiver ought not to seek discovery in reference to the merits on that litigation : for a plaintiff cannot by one bill obtain specific relief and also a discovery on a matter distinct from that specific relief (k). So when the bill for the receiver went on to pray that upon the administrator being appointed and brought before the Court, the rights of the parties might be declared, and the estate administered, a demurrer to the latter part of the relief prayed was allowed (1).
Where pending a contest in the Ecclesiastical Court between the plaintiff and defendant, as to the validity of two Wills, the plaintiff filed a bill for a receiver of the testatrix's estate, and to set aside an assignment made by her to the defendant, the Court refused to appoint a receiver of
(f) Devey v. Thornton, 9 Hare, 229, by Turner, V. C. But see also Dimes v. Steinberg, 2 Smale & G. 75.
(9) Whitworth v. Whyddon, 2 Mac. & G. 52.
(h) 2 Mylne & Cr. 454.
(1) Wood v. Hitchings, 3 Beav. 504,
(1) De Feucheres v. Dawes, 5 Beav. 110. As to the costs of the bill for the receiver, see Frowd v. Baker, 4 Beav. 76.
the property comprised in the assignment, that being claimed by the defendant independently of either Will (m).
Of Administration durante absentia.
At common If the executor named in the Will, or the next of kin, be law before probate :
out of the kingdom, the Ecclesiastical Courts have, as they always have had, the power, before probate obtained, or letters of administration issued, of granting to another & limited administration durante absentia (n). In the case of Clare v. Hedges, 3 Wm. & M. (o), the Court held clearly that such administration was grantable by law, and that it might be a great convenience to do so; for if the next of kin be beyond sea, and such administration could not be granted, the debts due to the intestate might be lost. So in Slater v. May, 3 Ann. (p), where an action was brought by an administrator cum testamento annexo, durante absentiâ of the executor, Lord Holt said that it was reasonable there should be such an administrator, and that this administration stood upon the same reason as an administration durante minore ætate of an executor, viz., that there should be a person to manage the estate of the testator, till the person appointed by him is able. The absence of the executor, or next of kin, to justify such an administration, must, it seems, be an absence out of
the realm (q). after probate But when probate was once granted, and the executor had by stat. 38 Geo. III. c. 87. gone abroad, the Ecclesiastical Courts did not feel themselves
(m) Jones v. Goodrich, 10 Sim. 327.
(n) See 3 Bao. Abr. 66, tit. Exors. (G.)
(0) 1 Lutw. 342. S. C. (misreported,) 4 Mod. 14. S. C. cited
from MS. in Walker v. Woollaston, 2 P. Wms. 579.
(p) 2 Lord Raym. 1071, S. C. 2 Salk. 42. 6 Mod. 304.
authorised to grant new administration on the ground that the executor had left the kingdom. Nor could a Court of Equity interfere by appointing a receiver: because, although when once a person capable of sustaining the character of legal representative had been brought into Court, Equity could, in the case of his insolvency or misconduct, appoint another person to manage the affairs of the testator, and compel his legal representative to permit such person to sue in his name; yet, if the executor went abroad, a Court of Equity could entertain no suit, there being no person to stand in the situation of the testator (r). The consequence of this defect of the authority of the Spiritual Court was, that there was no person existing within the jurisdiction of the Courts of Law or Equity, duly authorised to appear and collect the debts. To remedy this inconvenience, the If, at the expistatute 38 George III. c. 87 (usually called Mr. Simeon's ration of twelve
months from a Act), was passed, whereby after reciting the laws now exist- testator's deing are not sufficient to enforce a speedy distribution of the assets of deceased persons, where the executor to whom probate is
granted, shall probate of the Will hath been granted, is out of the juris- not reside diction of his Majesty's Courts of Law and Equity, it is jurisdiction of
his Majesty's enacted, “ that at the expiration of twelve calendar months
courts, a cre. from the death of any testator, if the executors or executor (s) ditor, &c. may
obtain special to whom probate of the Will shall have been granted, are or administration
on a 58. stamp. is then residing out of the jurisdiction of his Majesty's Courts of Law and Equity, it shall be lawful for the Ecclesiastical Court, which hath granted probate of such Will, upon the application of any creditor, next of kin, or legatee, grounded on affidavit hereinafter mentioned, to grant such special administration as hereinafter is also mentioned; which administration shall be written or printed upon paper or parchment, stamped only with one five shilling stamp, (r) 3 Bos. & Pull. 30.
the country of an administrator (8) It will be observed that the cum testamento annexo: In the statute applies to executors only, goods of Harrison, 2 Robert. and therefore administration cannot 184. be granted during the absence from