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repealed by the Ordinary, not arbitrarily, yet where there shall be just cause for so doing; of which the Temporal Courts are to judge (a).

Therefore the administration may be revoked where it was granted in an irregular manner, as where a next of kin comes too hastily to take out the administration within the fourteen days (b): or where it has been granted non vocatis jure vocandis, without citing the necessary parties (c): in which cases, the administration, though not void, is voidable. In Harrison v. Weldon (d), Walker Weldon died intestate, leaving Anne his wife and Amphillis his sister : The sister, upon the common oath, that she believed he died intestate, without wife or children, obtained administration; and in a suit to repeal it as obtained by surprise, it appeared to be the course of the Court never to grant it to the next of kin, until the wife is cited: The sister moved for a prohibition, and insisted that the Ordinary had executed his authority: But the Court held that the Ordinary could not be said to have executed his authority; having never had an opportunity to make the election which the statute of the 21st Hen. VIII. c. 5, gives him : that it was incident to every court to rectify mistakes they were led into by the misrepresentation of the parties : that if there were no surprise (of which the Court below was judge), there ought to be a prohibition, because then the administration would have been duly and regularly granted; but here was a plain surprise, and therefore they denied a prohibition. In the report of this case in Fitzgibbon (e), Chief Justice Raymond, Mr. J. Probyn, and Mr. J. Page said it was different from Sir George Sand's Case (above stated), because it did not appear what the circumstances of that case were : But Mr. Justice Lee said, “ that it was the common course of the Ecclesiastical Court to require an

(a) Burn. E. L. 293. 3 Bac, (B. 8.) Ravenscroft v. RavensAbr. 50, tit. Executors, (E. 3.) croft, 1 Lev. 305. 12. See Koster v. Sapte, 1 Curt. (d) Stra. 911. 691.

(e) Harrison v. Mitchell, Fitzgib. (6) 3 Bac. Abr, ubi supra.

303. (c) Com. Dig. Administrator,

to one not next

affidavit that the party is the person entitled, before they grant administration to him; and therefore the same surprise must be supposed to have been in Sand's Case, as here, though the book is silent; and the reason there given is that the power being once executed, the Ordinary cannot go back.” Hence it should seem, that Sand's Case must be considered as overruled by Harrison v. Weldon.

Again, the administration may be revoked, if a next of kin, to whom it has been committed, becomes non compos, or otherwise incapable (f), or, it has been said, if he goes beyond sea (g).

A fortiori the Ordinary may repeal his grant of adminis. when grantel tration, when made to other than the next of kin, as if it be of kin : granted to a next of kin, together with one not of kin, as to a sister and her husband (h): or to one of kin, but not next of kin (i): or to a creditor before the renunciation of the next of kin (k). In these cases, the administration is not void, but voidable only (1). So if the next of kin, at the time of the death of the intestate, happen to be incapable of administering by reason of attaint or excommunication, and the Ordinary commits it to another; if he afterwards becomes capable, the Ordinary may repeal the first administration, and commit it to the next of kin (m).

On a late occasion, the tenant for life of certain property when granted having assigned over his interest to the remainderman, an annexo: administration with the Will annexed, which had been granted to the tenant for life, limited to that interest, was revoked, and a new administration, limited to that property, decreed to the remainderman, then possessed of the sole interest therein (n).

cum testamento

(f) Agreed by all the justices in Oftley v. Best, 1 Sid. 373. Bac. Abr, ubi supra. 4 Burn. E. L. 292. Com. Dig. Administrator, (B. 8.) See ante, p. 451–453.

(9) Bac. Abr. ubi supra.

(h) Brown v. Wood, Aleyn, 36. Com. Dig. Administrator, (B. 8.) Ante, p. 391.

(1) Blackborough v. Davis, 1 Salk. 38. Anon. Hetley, 48.

(k) Ibid. Com. Dig. Administrator, (B. 6.)

(1) Ibid.

(m) Gibs. Cod. 479. 4 Burn. E. L. 293.

(n) In the goods of Ferrier, 1 Hagg. 241.

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In another modern case a creditor having obtained an administration cum testamento annexo, and completely settled his own debt, went away: Sir John Nicholl said, he saw no other remedy, than that the administration should be revoked, and the executor should retract his renunciation, and be allowed to take probate of the Will; otherwise great loss might accrue, and injustice be done ; and the learned judge observed, that the Court has greater authority over an administration with the Will annexed, granted to a creditor, than over an administration under the statute (o).

Administration cum testamento annexo, whether granted to a next of kin, or one not next of kin, is voidable, and may be repealed, if there be a residuary legatee (p). So although upon an executor's refusal to prove the Will, and take upon him the office of executor, whereupon administration is committed to another, the executor cannot go back again and prove the Will, and assume the executorship ; yet if the administration be committed only upon the executor's making default to come in upon process, in that case the executor may at any time after appear and prove the Will, and so cause the administration to be revoked (9). So the administration may be revoked, if it be granted on the refusal of an executor, who has before administered (r).

In a modern case (s) an administration with a Will annexed, obtained after a caveat entered had expired, but without notice to the adverse party, and while the Will was in suit in Ireland—the forum domicilii-was revoked, as surreptitiously obtained, and the party condemned in costs of a petition in support of it.

If administration be repealed quia improvide, that is, where on a false suggestion in respect to the time of the intestate's death, it issued before the expiration of a fortnight from that

(0) In the goods of Jenkins, 3 (r) Godolph. ubi supra. Com. Phillim, 33.

Dig. Administrator, (B. 6.) See (P) Godolph. Pt. 2, c. 31, s. 3. ante, p. 243, that such administraAnte, p. 403.

tion is not void, but voidable only. (9) Godolph. ubi supra. Baxter (s) Trimlestown v. Trimlestown, and Bale's case, 1 Leon. 90. 3 Hagg. 243.

re-grant ad cundem after a revocation quia improvide, &c.

event, or where the Court in committing it took security inadequate to the value of the property, it shall be granted to the same person (t). It is usual, where there is a question about a Will, or What is not a

ground for when the right of administration comes in dispute, to enter revocation. what is called a caveat (which is a caution entered in the Spiritual Court to stop probates, administrations, faculties, and such like from being granted without the knowledge of the party that enters) (u). By the canon law it is said to stand in force for three months (x), and is of such force and validity, that if an administration or the like be granted pending such caveat, the same is void (y). But the better opinion seems to be, that it is otherwise by the common law; which will take no notice of a caveat, but considers it as a mere cautionary act done by a stranger, to prevent the Ordinary from doing any wrong (2): and, therefore, in the common law Courts, administration or probate granted contrary to a caveat entered, shall stand good (a).

If administration be granted to a younger brother, the elder cannot have it repealed, unless it has been granted by surprise (6). So if administration be granted to a creditor, and afterwards a creditor to a larger amount appear, it shall not be revoked for him (c). So also administration de bonis non, with the Will annexed, granted to one where two had

(t) Toller, 125. Com. Dig. Ad- Omey v. Best, 1 Lev. 186. S. C. ministrator, (B. 8.) Omey v. Best, 1 Sid. 293. 2 Keb. 63, 72, 83, 1 Sid. 293.

208, 340, 392, 420, by Kelynge, (u) 3 Burn. E. L. 244, Philli- C. J., and Twysden, J.; but more's edition.

Moreton and Wyndham, justices, (x) 3 Bac. Abr. 41. Executors, thought that the granting of ad(E. 3.) 8. But by the practice of ministration pending the caveat, the Prerogative Office it is allowed was a good ground for revoking it. to stand valid even beyond six See Trimlestown v. Trimlestown, months : 3 Burn. E. L. 192, Phil- 3 Hagg. 243. Ante, p. 512. limore's edition.

(6) Ayliff r. Ayliff, 2 Keb. 812. (y) 3 Burn. E. L. 244, Philli- So where a niece obtained admimore's edition.

nistration, a nephew could not get (3) Hutchins v. Glover, Cro. Jac. it repealed : Hill v. Bird, Sty. 102. 463. S. C. 1 Roll. Rep. 191. Gibs. Ante, p. 375. Cod. 778.

(c) Dubois v. Trant, 12 Mod. 438. (a) Godolph. Pt. 2, c. 33, s. 5.

a

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equal right, is good and shall not be revoked (d). Nor can the Ordinary revoke the grant on account of abuse; for he ought to take sufficient caution in the first instance to prevent mal-administration (e). Nor can he revoke it on account of the administrator's omission to bring in an inventory and account (f).

And if an administration has been properly granted, it cannot be revoked, even on the application of the administrator himself, and although he has not intermeddled with the effects; at all events unless some strong ground for the revocation be shown. Therefore, where a party entitled in distribution to an intestate's effects, took out administration under a belief that she and her brother were the only next of kin, but, finding there were other parties equally entitled, and that the estate must be administered by the Court of Chancery, and not having intermeddled with the effects, she applied for a revocation of her grant and a new one to one of the other parties who was willing to take it, the rest consenting; the Court refused the application, on the ground that an administration properly granted could not be revoked on a mere suggestion that it would be for the benefit of the estate (g).

а

How far a

In a modern case, the attorneys of an executrix had withparty who has drawn from the suit, after propounding an alleged Will, and once propounded a Will and suffered a next of kin to take administration; and it was withdrawn, is barred.

held, under the particular circumstances of the transaction, that the executrix was not barred from calling upon the next of kin to bring in the administration, and re-propounding the alleged Will (h). But in ordinary cases, where the parties, being present, declare they proceed no further, or duly authorize a practitioner to take that step for them, the Court, as far as it legally can, will hold them bound (i).

(d) Taylor v. Shore, T. Jones, (9) In the goods of Heslop, 5 161.

Notes of Cas. 2. S. C. 1 Robert. (e) Thomas v. Butler, 1 Vent. 457. 219, by Hale.

(h) Trower v. Cox, 1 Add. 19. (f) Hill v. Bird, Sty. 102.

(0) 1 Add. 225.

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