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38 G. III. c. 87. and shall pay no further or other duty to his Majesty, his
heirs, or successors." The party ap
Sect. 2. “And be it further enacted, that the party ap-
aforesaid, shall make an affidavit in the following words, or
do swear that there is due and
deceased, the sum of
the said testator.”
by Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, to our well-beloved in Christ,
greeting: Whereas it hath been alleged before the Worshipful Doctor of Laws, surrogate of
Doctor of Laws, Master, Keeper or Commissary of our Prerogative Court of Canterbury, lawfully constituted, by you the said
did, whilst living, and of sound mind, memory, and understanding, make and duly execute his last Will and Testament in writing, and did therefore nominate, constitute, and appoint
his executors (or sole executor), who in the month of
proved the said Will by the authority of our said Court, and now reside (or resides) out of this kingdom and out of the jurisdiction of his Majesty's Courts of Law and Equity (as in and by an affidavit duly made and sworn to by
into and left in the registry of our said Court, reference being 38 G. III. c. 87. thereunto had will more fully and at large appear): and whereas the surrogate aforesaid having duly considered the premises did at the petition of the said decree letters of administration of all and singular the goods, chattels, and credits of the said deceased, to be committed and granted to you the said
named by or on the behalf of the said
a creditor (legatee or one of the next of kin) of the said deceased (as the case may be) limited for the purpose, to become and be made a party to a bill or bills to be exhibited against you in any of his Majesty's Courts of Equity, and to carry the decree or decrees (t) of any of the said Court or Courts into effect, but no further or otherwise (justice so requiring): 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 said goods, chattels, and credits, according to the tenor and effect of the said Will, limited as aforesaid, so far as such goods, chattels, and credits of the deceased 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, so far as the same may come to your hands, and to exhibit the same into the registry of our said Prerogative Court of Canterbury on or before the next ensuing, and also to render a just and true account thereof; and we do by these presents ordain and constitute you administrator
(t) In Warburton v. Hill, 5 motion before decree, ordered stock Sim. 532, which was a suit against standing in the testator's name to the Bank of England, and an be transferred to the Accountantadministrator appointed under the General. statute, Sir L. Shadwell, V. C. on
38 G. III. c. 87. of all and singular the goods, chattels, and credits of the
said deceased, limited as aforesaid, but no further or
Given at London, the
and in the year
Court of Equity Sect. 4. “And be it further enacted, That it shall be may appoint persons to col lawful for the Court of Equity in which such suit shall be lect outstand.
depending, to appoint (if it shall be needful) any persons or ing debts :
person to collect in any outstanding debts or effects due to such estate, and to give discharges for the same, such persons or person giving security in the usual manner duly
to account for the same.” Stock belong. Sect. 5. “And be it further enacted, That it shall be ing to the estate of the lawful for the accountant general of the High Court of deceased, may be transferred Chancery, or for the secretary or deputy secretary of the into the name
Governor and Company of the Bank of England, to transfer, of the account ant-general in and for the Governor and Company of the Bank of England Chancery, in trust for such to suffer a transfer to be made of any stock belonging to purposes as the Court shall
the estate of such deceased person into the name of the direct in any
accountant general, in trust for such purposes as the Court shall direct, in any suit in which the person to whom such
administration hath been granted, shall be or may have been Executor
a party : Provided, nevertheless, that if the executors or returning to reside within executor, capable of acting as such, shall return to, and jurisdiction of the Court to be reside within, the jurisdiction of any of the said Courts made a party pending such suit, such executors or executor shall be made in such suit.
party to such suit, and the costs incurred, by granting such administration, and by proceeding in such suit against such administrator, shall be paid by such person or persons, or out of such fund as the Court where such suit is depending
shall direct." The statute Though this statute is only entitled, “An Act for the applies, where executor is out
better administration of Assets where the Executor to whom of the reach of Probate has been granted is out of the Realm," it was held. process :
in the Ecclesiastical Court, by Sir W. Wynne, that it is equally applicable to the case of an executor resident out of the jurisdiction, and out of the reach of the process of His Majesty's Courts of Law and Equity, as for instance, the case of an executor residing in Scotland, as to that of an executor resident out of the realm (u). In a subsequent stage of the same cause, Lord Eldon, Chancellor, though he held that the authority of the administrator could not be disputed in a Court of Equity in which opinion he was followed by Sir W. Grant, Master of the Rolls) seemed to doubt the propriety of the grant of administration under such circumstances. Yet no objection was taken on that score by the very able advocate who argued the case, when in the Common Pleas (x). And administration has subsequently been granted in the Prerogative Court under precisely similar circumstances (y).
However it may be to be lamented that the statute was The statute not made more extensive, it is clear, that it applies only to applies only to cases where there are proceedings in Chancery : In all other there are pro
ceedings in instances, the Spiritual Court can only grant administration Chancery. durante absentiâ, on the ground that there is no legal representative. Thus, in a late case, where the executor, having obtained probate, was resident at the Cape of Good Hope, and had no agent in this country; the Court was moved for a grant of administration limited to the administrator being made party to the renewal of a lease, of which the testator died possessed, renewable every fourteen years, but which renewal could not be effected without a personal representative to him : It was submitted that the case was within the spirit of the 38 'Geo. III. c. 87: But Sir John Nicholl, regretting the hardship of the case, rejected the application (2).
When the Ecclesiastical Court in the exercise of its ordinary jurisdiction grants administration during the (u) Hannay v. Taynton, 2 Add.
(y) In the goods of Jouett, 2 505.
Add. 54. (x) Mr. Serjt. Bayley, 3 Bos. & (2) In the goods of Davies, 2 Pull. 26.
Hagg. 79. The learned judge sug
Effect of the return of the executor.
absence of an executor or next of kin, before probate or administration taken out by him, such administration is at an end the moment he returns (a): But under this statute, the administrator is not appointed for a limited period, but for a limited purpose, viz. to become and be made party to a bill or bills in equity, and to carry the decree or decrees into effect. The suit so instituted is not, therefore, to fall to the ground, and be at an end, by the return of the executor, but it is to go on, he being made a party in the usual course; and then the temporary administrator may account, have his costs, and be discharged (b).
It was held in Clare v. Hedges (c), that, in the case of a common law administration durante absentiá, if any of the debtors of the deceased paid his debt to the temporary administrator, though it was after the return of the executor next of kin, yet if the debtor had no notice of such return, it was a good payment.
When an administrator has been appointed under the statute, if the executor dies, the administration does not thereby come to an end, nor the authority of the administrator determine. This point was decided in the Court of Common Pleas, by Rook and Chambre, Justices, Lord Alvanley, C. J., dissentiente (d). There is no provision made in the statute for the death of the executor: but the proper course upon such an event seems to be, that in case of his dying intestate, some person should take out general administration to the original testator, or if the former executor made a Will appointing an executor capable of acting, such executor should obtain probate, so as to represent the original testator; and then such administrator or
Effect of the death of the executor.
gested a remedy, viz. a power of
(a) Secus, as an administration
(6) Rainsford v. Taynton, 7 Yes. 466.
(c) 1 Lutw. 342. S. C. cited from MS. in Walker v. Woollaston, 2 P. Wms. 579.
(d) Taynton v. Hannay, 3 Bos. & Pull. 26.