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58 G. III. c. 73. any probate or administration being obtained, and the Regimental surplus only of arrears of pay and proceeds of effects shall debts to be paid without be deemed the personal estate of the deceased, for the payprobate or ad- ment of any duty, or for distribution ; and the secretary of ministration : Distribution of war may direct the distribution of any surplus not exceeding surplus.

201. without any probate or administration, or payment of

any stamp or legacy duty. 11 G. IV. & 1 By stat 11 Geo. IV. & 1 Wm. IV. c. 41, s. 5, the commisW. IV. c. 41. Sums not ex.

sioners of the Chelsea Hospital with respect to pension or ceeding 501.

prize money, and the secretary at war, of his own proper in respect of pensions or pay authority, with respect to pay, may authorize the agent for of soldiers may be paid with pensions, or other proper officer charged with the payment tion or probate. thereof, to pay to any person or persons who shall prove

him, her, or themselves, to the satisfaction of such commissioners, with respect to pension and prize money, or of the secretary at war, with respect to pay, to be the next of kin or legal representative, or otherwise legally entitled to any pension, or prize money, or pay due to any deceased officer, non-commissioned officer, &c., such pension, &c., provided the same does not exceed 501., although no administration

or probate shall have been obtained. 2 & 3 W. IV. By stat. 2 & 3 Wm. IV. c. 53, s. 19, provisions are made c. 53. Prize

as to the payment of prize money to the representatives of ceased soldiers. deceased soldiers. The commis- And by s. 25, the commissioners of Chelsea Hospital are sioners of

empowered to authorize their treasurer or deputy treasurer Chelsea Hospital may au

to pay to any person or persons who shall prove him, her, or thorize the payment of shares themselves, to be the next of kin or legal representative, or 501. to next of otherwise entitled to any share of prize money belonging to kin, &c., with

any deceased officer, &c., any such share not exceeding 501., out administration. although no administration or probate shall have been

obtained. Claim of prize- By s. 26, it is enacted, that, in all cases of claim for prize money by the next of kin of money made by the next of kin of foreigners, who shall have foreigners to be paid without

been in the pay of his Majesty as non-commissioned officers adıninistration, or soldiers, and who shall have died intestate, it shall be &c.

lawful, when such next of kin shall reside out of his Majesty's

money of de

c. 53.

dominions, for the treasurer or deputy treasurer of the said 2 & 3 W. IV. Hospital, for the time being, to pay such claims to such next of kin, or any person or persons duly authorized by such next of kin to receive the same, without the production of letters of administration; and, in all cases where such foreign non-commissioned officers or soldiers shall have made Wills, it shall be lawful for the treasurer or deputy treasurer, in like manner, to pay and satisfy such claims to the person or persons who by inspection of the original Will, or an authenticated copy thereof, shall appear to be entitled thereto, or to such person or persons as he, or she, or they shall duly authorize to receive the same, without requiring the probate.

By s. 28, a creditor taking out administration, is entitled only to the payment of the sum due to him at the time.

VOL. I.

D D

CHAPTER THE THIRD.

OF SPECIAL AND LIMITED ADMINISTRATIONS.

SECTION I.

Of Administration cum testamento annexo.

HITHERTO the subject has been confined to cases of Instances of quasi intestacy. complete intestacy. But it often happens, that the deceased,

although he makes a Will, appoints no executor, or else the appointment fails : in either of which events, he is said to die quasi intestatus (a). The appointment of executor fails, 1. Where the person appointed refuses to act. 2. Where the person appointed dies before the testator, or before he has proved the Will; or where, from any of the causes specified in a former part of this work, he is incapable of acting. 3. Where the executor dies intestate, after having proved the Will, but before he has administered all the personal estate of the deceased. In all these cases, as well as where no executor is appointed, the Ordinary must grant an administration, which is called administration with the Will annexed (b); and in the last instance it is also called administration de bonis non (c). The office of such an administrator differs little from that of an executor (d); and it is plain that the Will to which it is annexed must be similarly proved, as though probate were taken of it by an executor (e).

(a) 2 Inst. 397.

(b) See ante, Bk. III. Ch. IV. p. 222, 223, and notes.

(c) Com. Dig. Administrator (B. 1). Administration de bonis non must also be granted, whenever an administrator dies before he has

administered all the effects. See post, sect. 2, p. 413, et seq.

(d) 2 Black. Comm. 505.

(e) Such administration must also be granted, if one of two executors proves the Will and dies, and the other renounces: See ante,

within the

It is obvious that many of the cases above contemplated Cases not are not within the statute of administration, 21 Hen. VIII. statute of adc. 5 (), which provides only for intestacy, and the refusal ministration : of the appointed executor: Consequently in such instances the Spiritual Courts are left to the exercise of their discretion in the choice of an administrator, according to their own practice: and no person has such a legal right to pre. ference as can be enforced by application to the Common Law Courts (g).

The rule of practice in the Ecclesiastical Court, in a case Practice to where the grant of administration is not within the statute, tration to him

grant adminisis to consider which of the claimants has the greatest who has the

greatest ininterest in the effects of the deceased, and decree the terest : administration accordingly, if there are no peculiar circumstances (1). Hence, in all cases where no executor is appointed, or the appointed executor fails to represent the testator, the residuary legatee, if there be one, is preferred

residuary leto the next of kin, and entitled to administration cum gatee preferred

to next of kin : testamento annexo (i). And so strong has been the effort of the Courts that the right of administration should follow the right of property, that although in the case of the

P. 224.

Com. Dig. Administrator, (B. 1.): So if a man name the executor of B. to be his executor, and die in the lifetime of B.; for until B.'s death, he is in effect intestate: Graysbrook r. Fox, 1 Plowd. 279, 281: Or if a man name an executor to have authority after a year from his death ; for during the year he is without an executor: 1 Plowd, 279, 281. And it seems that in all cases where a man makes his testament and executors, and there is a mesne time in which the executors cannot or will not execute the office, the Ordinary ought in the mean time to grant administration : Graysbrook v. Fox, 1 Plowd. 279.

(f) See ante, p. 357.
(9) Rex v. Bettesworth, 2 Stra.

936. In the goods of Southmead,
3 Curt. 28.

(1) Repington v. Holland, 2 Cas.
temp. Lee, 254. Dobson v. Crache-
rode, 2 Cas. temp. Lee, 326. Elwes
v. Elwes, 2 Cas. temp. Lee, 573.
Wetdrill v. Wright, 2 Phillim. 248.
Tucker v. Westgarth, 2 Add. 352.
In fact, in all cases, whether within
the statute or not, (with the excep-
tion, according to the old practice,
of the single instance of adminis-
tration to a wife's effects, whose
husband has died after her, but
before her estate is administered,
see ante, p. 359,) the right of
administration follows the right to
the property: In the goods of Gill,
1 Hagg. 311.

The residuary legatee, it is said, is the testator's choice; he

appointed executor's renunciation, the letter of the statute expressly directs the Ordinary to grant administration to the next of kin, yet the spirit of the Act has been held, both by common lawyers and civilians, to exclude the next of kin where there is a residuary legatee ; on the ground that in such case the next of kin have no interest (k). “The reason," said the Court, in Thomas v. Butler (1), " that the statute 21 Hen. VIII. required that administration should be granted to the next of kin, was, upon the presumption that the intestate intended to prefer him: But now the presumption is here taken away, the residuum being disposed of to another : and to what purpose should the next of kin have it, when no benefit can accrue to him by it ? and it is reasonable that he should have the management of the estate, who is to have what remains of it after the debts and legacies paid.”

So the residuary legatee, even when there is no present even where there is no

prospect of any residue, is entitled to administration in residue, or where he is preference as well to the next of kin (m), as also to only trustee :

legatees and annuitants (n). So he is entitled though only

residuary legatee in trust (o). but next of kin However, the next of kin has a primâ facie right, and have a primâ facie right :

is the next person in his election West v. Willby, 3 Phillim. 381. to the executor: Atkinson v. Bar- Taylor v. Diplock, 2 Phillim. 276, nard, 2 Phillim. 318. If there are 277. In the goods of Gill, 1 Hagg. several entitled to the residue, 341, 342. See also, ante, p. 381,382. administration may be granted to (1) 1 Ventr. 219. any of them: Taylor v. Shore, T. (m) Thomas v. Butler, 1 Ventr. Junes, 162. Com. Dig. Adminis- 219. Treat. on Eq. B. 4, p. 2, c. 1, trator, (B. 6.) See Dampier v. s. 6; for, being once out of the Colson, 2 Phillim. 54. If granted statute upon the construction of to a widow, as one of several resi- the Will, there is nothing er post duary legatees, it ought, it should facto can bring him within it: 1 seem, to be limited during widow- Ventr. 219. hood: In the goods of Teed, 7 (n) Atkinson v. Barnard, 2 PhilNotes of Cas. 384.

lim. 316. (k) Pierce v. Perks, 1 Sid. 281. (0) Hutchinson v. Lambert, 3 Thomas v. Butler, 1 Ventr. 217. Add. 27. See, however, contra, as S. C. 2 Lev. 55. 3 Keb. 23, 27. to mere trustees, Coussmaker , 1 Gibs. Cod. 479. Linthwaite v. Chamberlayne, 2 Cas. temp. Lee, Galloway, 2 Cas. temp. Lee, 414, 243. Boddicott v. Dalzeel, ibid. 294.

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