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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). what is a It remains to be considered, what is a breach of the conbreach of the condition of dition of a bond given under the statute so as to induce a the bond :

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), a true inventory or ac

and either of these breaches will be incurred without any count :

previous citation (a). But, with respect to the branch of the condition that the administrator “ do well and truly admi

nister according to law” the goods, chattels, &c. of the it is no breach deceased, it is no ground of forfeiture that the administrator that the administrator has

has not paid the debts of the intestate ; and therefore a not paid the

creditor cannot sue upon the bond in the name of the Ordi. debts of the intestate : nary, and assign for breach the non-payment of a debt to

him (6): Nor is the neglect or refusal of the administrator nor that he has to distribute the surplus or residue of the effects of the not distributed the residue,

intestate among the next of kin, according to the Statute of

(x) In the goods of Hall, 1 11, s. 8: 1 Cr. & M. 690. 3 Hagg. 139.

Tyrwh. 390. (y) Greenside v. Benson, 3 Atk. (z) Archbishop of Canterbury 252, 253. Likewise in an action v. Willis, 1 Salk. 172, 315. S. C. upon the bond, it is not enough 11 Mod. 145. for the defendant, in order to show (a) 3 Atk. 252, 253. 1 Salk. the condition, as to exhibiting the 315. 11 Mod. 145. But according inventory on such a day, performed, to the modern practice, an inventory to plead, that there was no Court is not required by the Court unless held, but he must plead also that at the instance of a party interested: he was there ready, &c.; for he See post, Pt. III. Bk. II. Ch. I. must show that he has done all § III. See also Crowley v. Chipp, that could be done on his side to- Ante, p. 466. wards a performance: 1 Salk. 172. (6) Archbishop of Canterbury v. Assuming that it is a sufficient Willis, 1 Salk. 316. Browne t'. excuse that no Court was held on Archbishop of Canterbury, 1 Lutw. the day specified, this must be 882, b.: not even if a devastavit be pleaded in excuse of performance, suggested : 1 Crompt. & M. 711. and cannot be pleaded to a sug- But the assignees of a bankrupt gestion of breaches, or given in next of kin are not to be deemed creevidence before a jury on the trial ditors within this rule : Drewe v. of breaches suggested on the roll, Long, Prerog. July, 1854. 18 Jur. under the stat. 8 & 9 Wm. III., C. 1060.

Distributions, a breach of the condition that the adminis- unless there

has been a trator shall deliver and pay over the residue, unless there has previous

decree : been a previous decree or sentence of the Ecclesiastical Judge; 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 but it is a

breach that he use the effects of the intestate, so that those effects are has applied the entirely lost to the estate of the intestate (as where he assets to his

own purposes applies the balance of the intestate's estate, after payment whereby they

are lost : 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 (f).

Where the administration is not within the statute 21 H.

(c) 1 Crompt. & Mees. 690. 3 next of kin to try this or any other Tyrwh. 390. 8 B. & C. 151. doubtful question in a court of law,

(d) Archbishop of Canterbury v. by an action on the bond, which Tappen, 8 B. & C. 151. Sir John could not be brought without the Nicholl, on the application to allow permission of the Court. See 3 the bond to be put in suit, appears Add. 68. to have thought, that this neglect (e) Archbishop of Canterbury v. might be a breach of the condition ; Robertson, 1 Crompt. & M. 690. but his attention was not particu- S. C. 3 Tyrwh. 390. Whether the larly directed to this point, the circumstance of the administrator great coutest before him being dying largely indebted to the inwhether the sureties ought to be testate's estate is a breach, has charged under the particular cir- been questioned : Bolton v. Powell, cumstances that had taken place; 2 De G. M. & G. 1. and it is obvious, from some parts (f) 1 Crompt. & Mee. 713. 3 of his judgment, that he would Tyrwh. 419. have thought it right to allow the

.

breach of bond VIII. as in the case of an administrator durante minore ætate given when the administration with the Will annexed (g), or other grant of administration is not within

when the deceased dies testate, and the Ordinary has taken 21 Hen. VIII.

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

Where a party has obtained from the Prerogative Court breaches may be assigned :

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). how far equity An administratrix entered into the usual bond in the will relieve against for- Prerogative Court to exhibit an inventory within a limited feiture of the bond.

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). Bond by ad- In an administration pendente lite, limited to recover cerministrator pendente lite.

tain 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 (?).

If the administration be committed to a person out of Administration bond when ad- England, it is requisite that the sureties to the bond shall

is out of England. be resident within the kingdom (m).

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(9) See ante, p. 420.
(h) Folkes v. Docminique, 2

2
Stra, 1137.

(1) 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 per-
formance as to the rest: Bishop of
London v. McNeil, 9 Exch. 490.
) (k) Thomas v. Archbishop of

V.
Canterbury, 1 Cox, 399. See also
2 De G. M. & G. 17.

(1) Stanley v. Bernes, 1 Hagg. 221.

(m) In the goods of O'Byrne, 1

minor comes

of age.

of sureties to

Where there has been an administration pendente minore Administration

bond when 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 Justification for at the Court's discretion according to the circumstances the bond : 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 (9). Where administration cum testamento annexo was granted next of kin

administrator to the next of kin, on the ground of there being no executor cum testamento 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). 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

anneco :

Hagg. 316. See also Cambiaso v. Negrotto, 2 Add. 439, as to bonds on grants of administration to foreigners.

(n) Abbott e. Abbott, 2 Phillim. 578.

(0) 3 Hagg. 194, n. (a): In the goods of Milligan, 2 Robert. 108. The Court will not dispense with this rule in favour of the official

assignee of a deceased bankrupt:
Belcher v. Maberly, 2 Curt. 629.

(1) Howell v. Metcalfe, 2 Add.
348.

(9) Coppin v. Dillon, 4 Hayg. 376.

(r) Taylor r'. Diplock, 2 Phillim. 280.

(8) Friswell v. Moore, 3 Phillim. 139.

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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). legatee :

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). Husband re

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 ad

There may also be justifying sureties required to the ministrator : administration bond in cases of temporary general admi

nistration; 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 (z); or on a

; grant to the use and benefit of a lunatic, pending the

lunacy (a). the Court will

If the Court decrees a general grant, but, under special not allow sepa- circumstances, requires the sureties to justify only as to a rate bonds.

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, 1 Hagg. 487. See also, In the goods of Williams, 3 Hagg. 217.

(u) Pickering v. Pickering, 1 Hagg. 480.

(2) In the goods of Noel, 4 Hagg. 207.

(y) Howell v. Metcalfe, 2 Add. 350.

(2) In the goods of Campbell, 2 Hagg. 555.

(a) Ante, p. 451, 452.

(6) Howell c. Metcalfe, 2 Add. 348.

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