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executor, being considered within the true meaning, though not the strict letter of the statute, may apply to be made a party to the suit in Equity: and the Court of Equity will then put an end to the authority of the special administrator in the same way as if the original executor had returned to this country (e).
In Suwerkrop v. Day (f), an action was brought to recover a sum of money, for the interest of a debt which had been due to one Hubert Fox, in his lifetime, from the defendant, and was paid, but without the interest, in December, 1833 : Fox, who was a merchant in Demerara, died in May, 1830, and left one Owen Kernan his executor: Kernan, who was then in Demerara, sent a power of attorney to Allan McDonald, in England, to enable him to prove the Will there : Administration with the Will annexed, was granted to McDonald for Kernan's benefit; and he acted in settling the affairs : Kernan died in Demerara, in August, 1831, not having administered all the effects of Fox, and left one Hewlings and one McDowall his executors : In September, 1833, Hewlings being then abroad, and McDowall being dead, administration with the Will annexed, to the goods of Kernan, was granted to the plaintiff, as Hewling's attorney, for the use and benefit of Hewlings: The like administration with the Will annexed was also granted him to the goods not administered of Fox: Allan McDonald was living when the action was brought: There was evidence that the defendant had, by letter and otherwise, admitted Kernan, in his lifetime, to have a claim for principal and interest, as executor of Fox: The action was brought by the plaintiff, describing himself as administrator with the Will annexed, of Hubert Fox, of the goods left unadministered by Owen Kernan, who was executor of Hubert Fox, and who was alleged to have proved the Will by Allan McDonald, his attorney, to whom, as such attorney, administration with
(e) Rainsford v. Taynton, 7 Ves. (f) 8 A. & E. 624. 3 N. & P. 460; and see the judgment of 670. Chambre, J., in 3 Bos. & Pull. 34.
the Will annexed, for the benefit of the said Owen Kernan, was granted, which Owen Kernan was since deceased, having left McDowall and Hewlings, his executors; and that on McDowall's death, the plaintiff took administration, with the Will of Hubert Fox annexed, for the benefit of Hewlings : The first count of the declaration stated that the defendant was indebted to Owen Kernan, as executor as aforesaid, for interest of money forborne by him as such executor, and laid the promise to Owen Kernan, as such executor: The second count stated that the defendant was indebted to the plaintiff, as such administrator, for interest of money forborne by him as such administrator, and laid the promise to the plaintiff as such administrator: Profert was made of the letters of administration both to McDonald and to the plaintiff: The first plea traversed the being indebted to Owen Kernan as such executor: The second traversed the promise to Owen Kernan : The third traversed the promise to the plaintiff : The question in the cause was, what was the legal effect of these different letters of administration? The Court of King's Bench was of opinion that, by the first grant, Allan McDonald became the legal representative of Hubert Fox during the life of Owen Kernan, or, at all events, until he should himself take out probate, which he never did; but that on the death of Owen Kernan that grant was ipso facto at an end, and the subsequent grant to the plaintiff was good: And that the consequence was, that the plaintiff was entitled to recover on the second count all interest accruing subsequent to the grant to him : But that the defendant was entitled to a verdict on both the issues on the first count, because the defendant never was indebted to Owen Kernan as executor, for interest, nor promised him as executor.
In the case of an action brought by an administrator durante absentiá appointed independently of the statute, the declaration must aver that the executor at the time of the grant of administration was absent, and that his absence continues: If there is an averment of his absence, without
How adminig. trator durante absentid must declare.
saying where, the Court will intend it to be an absence beyond sea (g).
In an action on a policy of insurance, brought by an Admissions administrator appointed under the statute, evidence was not evidence tendered by the defendants of declarations made by the administrate executor, whilst he was executor and before the proceedings durante minohad taken place for having the present plaintiff appointed special administrator: But Lord Denman refused to receive the evidence, saying, that the acts of the original executor, done by him in that capacity, might be admissible in evidence against the plaintiff, who had succeeded durante absentiâ to the office of executor; but that, in his opinion, the mere declarations of the executor did not stand on the same footing (h).
Of other temporary and limited Administrations.
There are several other instances of temporary adminis- Temporary ad
ministrations : trations, granted as well cum testamento annexo as in cases of complete intestacy.
It has already appeared that an executor may be appointed cum testamento with limitations as to the time when he shall begin his office, as where a man is appointed to be executor at the expiration of five years from the death of the testator (i).
So the testator may appoint the executor of A. to be his
(9) Slater v. May, Lord Raym. marinis :
: so that in truth the ob1071. In Hodge v. Clare, as re- jection, instead of having been ported in 4 Mod. 14, upon an ob- overruled, could not possibly have jection that the continuance of ab- been made. On which occasion, sence was not averred, it is said to Holt, C. J., said, “ See the inconhave been ruled that the declara- veniences of these scambling retion was good, and the defendant ports; they will make us appear to ought to plead it, if the executor posterity for a parcel of block. had returned : But it appeared in heads." Slater v. May, that the roll of (h) Rush «. Peacock, 2 Moo. & Hodge v. Clare was searched, and Rob. 162. there was a full averment that the
(i) Ante, p. 217. executor was
in case of an executor limited as to time :
administration limited till a Will be transmitted to England :
executor: and then if he die before A. he has no executor till A. die (1:).
In these cases, if the testator does not appoint a person to act before the period limited for the commencement of the office, the Ordinary must commit administration limited until there be an executor (I). It is plain, that this will be an adminis
l tration cum testamento annexo, and the appointment made according to the rules connected with that sort of grant(m).
So it may be necessary to decree a limited administration till the Will of the deceased can be produced in order to be admitted to probate. Thus where the deceased, a few days before his death, stated that he had made his Will whilst in India, and that the same was then remaining there ; administration was applied for “ limited for the purpose of receiving and investing the interest and dividends due or to become due on certain stock of the deceased, and for receiving and investing the amount of an India bill, and for otherwise protecting the property of the deceased," "until the last Will and testament of the said deceased, or an authentic copy thereof, should be transmitted to this country : Sir John Nicholl, on the consent of all parties apparently interested, granted the administration, and the learned Judge observed, that the deceased could not be sworn to have died intestate, having, according to his own declaration, left a Will in India : An administration pendente lite was out of the question, as no suit in the Spiritual Court was or ever might be depending; Nor could there be an administration as durante absentia or minoritate of an executor; for non constat who the executor was : At the same time a long interval must elapse before the Will would be forwarded from India, in which interval it was material there should be some one to protect and manage the property; and, therefore, the Court complied with the application (n).
(k) Ante, p. 217.
(n) In the goods of Metcalfe, 1 Add. 343.
The circumstances attending the administration of the effects of Sir Theophilus John Metcalfe, in the course of which the administration just mentioned was granted, afford some further examples, in subsequent stages, of limited administrations, which it may be perhaps advisable to introduce here. The administration, limited as above stated, was decreed in December, 1822, to two persons, Edward Larkin and William Monson, Esqrs., and it ceased and determined shortly afterwards, a copy of the said Will having been actually forwarded to this country.
The deceased, by his Will, appointed his brother (Sir Charles Theophilus Metcalfe) of Hydrabad, Charles Magniac, and George Sanders, Esquires, both of Canton, and the said Edward Larkin, Esq., his executors, and his daughter, Eliza Metcalfe, a minor, aged about sixteen years at the time of his death, residuary legatee.
In March, 1823, a bill was filed in the High Court of Chancery, wherein the said minor, by David Howell, (party in the cause), was plaintiff, and the said Edward Larkin and William Monson, were defendants; and, by an order made in the said cause, Mr. Howell was appointed guardian of the person and property of the minor, until she attained her age of twenty-one years.
In the month of March, 1824, letters of administration, limited to (with the said copy of the Will annexed), of the goods of the the name of deceased, were granted, by authority of the Prerogative accountant
general : Court, to the said David Howell," limited to the purpose only of transferring all sums of money, due and payable to the deceased, from the Governor and Company of the Bank of England, from the London Dock Company, from the Company of Merchants trading to the East Indies, and from the Globe Insurance Company respectively, in the name of the Accountant General of the Court of Chancery" (o).
But this last administration also ceased and determined, viz. on the arrival of Mr. Magniac, one of the executors, in this country. Mr. Magniac, however, subsequently, died here,
(0) Howell v. Vetcalfe, 2 Add. 348.