what is a breach of the condition of the bond: a true inventory or account: executors of the deceased administrator at law on the administration bond, in the name of the Ordinary: and the Court will order the bond "to be attended with in the Common Law Court, and produced at the hearing of the cause (x). It remains to be considered, what is a breach of the condition of a bond given under the statute so as to induce a forfeiture. It may be well assigned as a breach, that the administrator has not delivered a true and perfect invennot delivering tory (y), or that he has not made a just and true account(z), and either of these breaches will be incurred without any previous citation (a). But, with respect to the branch of the condition that the administrator "do well and truly administer according to law" the goods, chattels, &c. of the it is no breach deceased, it is no ground of forfeiture that the administrator has not paid the debts of the intestate; and therefore a creditor cannot sue upon the bond in the name of the Ordinary, and assign for breach the non-payment of a debt to him (b): Nor is the neglect or refusal of the administrator nor that he has to distribute the surplus or residue of the effects of the intestate among the next of kin, according to the Statute of that the administrator has not paid the debts of the intestate : not distributed the residue, (x) In the goods of Hall, 1 Hagg. 139. (y) Greenside v. Benson, 3 Atk. 252, 253. Likewise in an action upon the bond, it is not enough for the defendant, in order to show the condition, as to exhibiting the inventory on such a day, performed, to plead, that there was no Court held, but he must plead also that he was there ready, &c.; for he must show that he has done all that could be done on his side towards a performance: 1 Salk. 172. Assuming that it is a sufficient excuse that no Court was held on the day specified, this must be pleaded in excuse of performance, and cannot be pleaded to a suggestion of breaches, or given in evidence before a jury on the trial of breaches suggested on the roll, under the stat. 8 & 9 Wm. III., c. 11, s. 8: 1 Cr. & M. 690. 3 Tyrwh. 390. (z) Archbishop of Canterbury v. Willis, 1 Salk. 172, 315. S. C. 11 Mod. 145. (a) 3 Atk. 252, 253. 1 Salk. 315. 11 Mod. 145. But according to the modern practice, an inventory is not required by the Court unless at the instance of a party interested: See post, Pt. III. Bk. II. Ch. I. § III. See also Crowley v. Chipp, Ante, p. 466. (b) Archbishop of Canterbury v. Willis, 1 Salk. 316. Browne v. Archbishop of Canterbury, 1 Lutw. 882, b.: not even if a devastavit be suggested: 1 Crompt. & M. 711. But the assignees of a bankrupt next of kin are not to be deemed creditors within this rule: Drewe . Long, Prerog. July, 1854. 18 Jur. 1060. has been a previous but it is a breach that he has applied the assets to his Distributions, a breach of the condition that the adminis- unless there trator shall deliver and pay over the residue, unless there has been a previous decree or sentence of the Ecclesiastical Judge; decree: because, by the terms of the bond, such decree should precede the distribution (c): And since that is provided for by this special clause in the condition, the neglect or refusal to distribute, until such previous decree or sentence, is not a breach within the second clause of the condition, viz. that he should "well and truly administer according to law (d)." But when the administrator applies and converts to his own use the effects of the intestate, so that those effects are entirely lost to the estate of the intestate (as where he applies the balance of the intestate's estate, after payment of the debts, to his own purposes, and becomes a bankrupt), this is such a breach of the condition of the bond, by which the administrator undertakes "well and truly to administer according to law," as will entitle the next of kin to have the bond put in suit at their instance; and the plaintiff in such case is entitled to recover, in an action against the sureties, the full amount of the money that has been so misapplied (e). The whole of the damages, so recovered, should be paid into the Ecclesiastical Court, there to be distributed as the effects of the intestate (ƒ). Where the administration is not within the statute 21 H. (c) 1 Crompt. & Mees. 690. 3 Tyrwh. 390. 8 B. & C. 151. (d) Archbishop of Canterbury v. Tappen, 8 B. & C. 151. Sir John Nicholl, on the application to allow the bond to be put in suit, appears to have thought, that this neglect might be a breach of the condition; but his attention was not particularly directed to this point, the great coutest before him being whether the sureties ought to be charged under the particular circumstances that had taken place; and it is obvious, from some parts of his judgment, that he would have thought it right to allow the next of kin to try this or any other (e) Archbishop of Canterbury v. (f) 1 Crompt. & Mee. 713. 3 Tyrwh. 419. own purposes whereby they are lost : administration is not within 21 Hen. VIII. breach of bond VIII. as in the case of an administrator durante minore ætate given when the with the Will annexed (g), or other grant of administration when the deceased dies testate, and the Ordinary has taken a bond from the administrator, conditioned for the due payment of debts and legacies, a breach may well be assigned that, though he had more than sufficient to pay all the debts, he has not paid a legacy (h). how many breaches may be assigned: how far equity will relieve against forfeiture of the bond. Bond by administrator pendente lite. Administration bond when ad ministrator is out of England. Where a party has obtained from the Prerogative Court a general order to put the administration bond in suit against the surety, the Court of Common Law, in which the action is brought, cannot restrain the party so empowered from suggesting as many breaches as he chooses, notwithstanding it may appear, on affidavit, that the order was obtained from the Spiritual Judge solely on one particular ground (i). An administratrix entered into the usual bond in the Prerogative Court to exhibit an inventory within a limited time, &c. The time having elapsed without an inventory being exhibited, a creditor put the bond in suit in the name of the archbishop, and the administratrix filed her bill for an injunction; which was granted, on the terms of her giving judgment in the action, which was to stand as a security for costs at law and in equity (but not for the debt) and amending the bill by submitting to account (k). In an administration pendente lite, limited to recover certain sums, and granted jointly to the nominees of the two parties in the suit, the Court will not dispense with such administrators entering into a joint bond (1). If the administration be committed to a person out of England, it is requisite that the sureties to the bond shall be resident within the kingdom (m). (g) See ante, p. 420. (h) Folkes v. Docminique, 2 Stra. 1137. (i) Archbishop of Canterbury v. Robertson, 1 Crompt. & M. 181. See the observations of Sir H. Jenner Fust in Crowley v. Chipp, 1 Curt. 460. The defendant cannot plead payment of money into Court as to some of the breaches and performance as to the rest: Bishop of London v. McNeil, 9 Exch. 490. (k) Thomas v. Archbishop of Canterbury, 1 Cox, 399. See also 2 De G. M. & G. 17. (7) Stanley v. Bernes, 1 Hagg. 221. (m) In the goods of O'Byrne, 1 bond when minor comes of age. Justification of sureties to the bond: Where there has been an administration pendente minore Administration ætate, and the minor coming of age takes upon himself the administration, he is obliged to give security to the same amount that the administrator did in the first instance (n). Justifying securities to the administration bond are called for at the Court's discretion according to the circumstances of each case; except that there is one general rule, that where there is not a personal service of the decree on the party or parties having a prior claim to the grant, justifying securities are required (o). Where the securities are required to justify in the ordinary course of practice, the Court will not dispense with this, even partially, but under very special circumstances (p). Where the application that the sureties may be directed to justify, is made on behalf of a next of kin, the Court feels bound to grant it; but it may be sufficient for the sureties to justify in respect of the share of the party excluded from the administration (q). Where administration cum testamento annexo was granted to the next of kin, on the ground of there being no executor or residuary legatee who survived the testator, the party, who had unsuccessfully claimed the administration derivatively from the residuary legatee, prayed that the sureties to the administration bond of the next of kin might be compelled to justify; but the Court rejected the application, as contrary to the established practice (r). next of kin administrator cum testamento annexo: But a residuary legatee for life, taking administration with residuary legatee: the Will annexed, may be compelled to procure justifying sureties (s). On a late occasion, the Court refused, on legatee: Husband re renunciation of a co-executor, to grant administration with the Will annexed, without justifying securities, to the daughter, the residuary legatee, during the lunacy of her mother, the other executor and residuary legatee in trust (t). In a modern case administration de bonis non with a Will annexed, in which was no executor, was granted to one of two legatees, a decree with intimation having issued in their joint names against the residuary legatee; the sureties justifying in the amount of the surplus beyond the interest of the one legatee or (on a proxy of consent from the other) beyond the joint interests, and an affidavit of no outstanding debts being made (u). On a late occasion (x), a husband resident abroad, was sident abroad: directed, on the application of creditors, to give justifying security resident within the jurisdiction, on taking a grant of administration to his wife. temporary administrator : the Court will rate bonds. There may also be justifying sureties required to the administration bond in cases of temporary general administration; as durante minore ætate (y); or on a grant to a widow, where there is a minor daughter entitled in distribution, limited till a last Will is found (2); or on a grant to the use and benefit of a lunatic, pending the lunacy (a). If the Court decrees a general grant, but, under special not allow sepa- circumstances, requires the sureties to justify only as to a part of the property, it will not allow separate bonds, so that other securities than those who justify in the requisite amount shall enter into the common administration bond, in the double amount of the whole property (b). On a late occasion, in an administration pendente lite, (t) In the goods of Hardstone, (x) In the goods of Noel, 4 Hagg. (y) Howell v. Metcalfe, 2 Add. 350. (z) In the goods of Campbell, 2 Hagg. 555. (a) Ante, p. 451, 452. (b) Howell v. Metcalfe, 2 Add. 348. |