Form of letters of administra tion cum testamento annexo. The form of the grant of letters of administration cum testamento annexo varies from the grant of general letters of administration as follows: "We being desirous that the said goods, chattels, and credits, may be well and faithfully administered, applied, and disposed of, according to law, do therefore, by these presents, grant full power and authority to you, in whose fidelity we confide, to administer and faithfully dispose of the said goods, chattels, and credits, according to the tenor and effect of the said Will: and first to pay the debts of the said deceased, which he did owe at the time of his death, and afterwards the legacies contained and specified in the said Will, so far as such goods, chattels, and credits will thereto extend and the law requires you having been already sworn well and faithfully to administer the same, and to make a true and perfect inventory of all and singular the said goods, chattels, and credits, and to exhibit the same into the Registry of our Prerogative Court of Canterbury, on or before the day of ensuing; and also to render a just and true accompt thereof. And we do by these presents ordain, depute, and constitute you administrator of all and singular the goods, chattels, and credits of the said deceased (with the said Will annexed)." next 1. Conse quences of the death of an executor: SECTION II. Of Administration de bonis non. This subject may be treated with reference, 1st, to the death of an executor: 2ndly, to the death of an adminis trator. executor. 1. With respect to the consequences of the death of an If a sole executor happens to die, without having proved the Will, the executorship, as there has before been occasion to observe (s), is not transmissible to his executor, (s) Ante, p. 223, 263. but is wholly determined, and administration cum testamento annexo must be committed to the person entitled, according to the rules pointed out in the preceding section. When the administration is granted under such circumstances, although the executor may have administered in part by disposing of the testator's effects, &c., yet the administration shall not be de bonis non administratis, but an immediate administration: because, although the acts done by the executor are good (t), the administering is an act in pais, of which the Spiritual Court cannot take notice (u). If one of several executors dies before or after probate, no interest is transmissible to his own executor, but the whole representation survives to his companion (v). Where such surviving executor, or where a sole executor, dies after probate, having made a Will, appointing his own executor, the entire representation of the original testator will be transmitted to him (x). But where such surviving executor, or sole executor, dies after probate, intestate, then no interest is transmissible to his own administrator (y): but administration of another sort becomes necessary, which is called administration de bonis non, that is, of the goods of the original testator left unadministered by the former executor (2). where sole or surviving executor dies after probate, intestate, there must be admibonis non: nistration de so where the executor ap points his own executor if the original Will was not proved in this So if the original testator dies abroad, or in the colonies, and his executor proves the Will there, and then dies, having appointed his own executor, who proves the latter Will in the Ecclesiastical Court here, it has been held, that the executor of the executor does not represent the first country: testator: But that in order to constitute such a personal representative here, administration de bonis non must be obtained in the Ecclesiastical Court in this country (a). (t) See ante, p. 257. (u) Wankford v. Wankford, 1 Salk. 308, by Holt, C. J. (v) Ante, p. 223, 224. (x) Ante, p. 222, 224. The rule is the same, though the original Probate was limited: In the goods of Beer, 2 Robert. 349. (y) Ante, p. 222. (2) Ante, p. 222. Tingrey v. Brown, 1 Bos. & Pull. 310. (a) Twyford v. Trail, 7 Sim. 92. Ante, p. 227. so where one of several executors proves, and the rest renounce and he who has proved, dies: Who is entitled to administration de bonis mento annexo. Again, if there are several executors, and one alone proves the Will, and the rest renounce, upon the death of him who has proved, no interest is transmissible to his executor: but the representation survives to the co-executors, who may retract their former renunciation, and assume the executorship (b); but if they persist in refusing to act, the sort of administration just mentioned becomes necessary. This administrator de bonis non will, when appointed, be the only representative of the party originally deceased. non cum testa- Such administration will evidently be committed cum testamento annexo, and will be granted to the person entitled according to the general principles already developed in cases of administration cum testamento annexo. In many instances, it is obvious, he will be a different person from the representative of the deceased executor; but if the executor were also beneficially residuary legatee, his representative will likewise be entitled to the administration de bonis non to the original testator (c). Administration de bonis non not necessary when there is In a modern case, administration durante minoritate was in the first instance granted to the mother of an infant, a part residuary legatee, on the renunciation of the executor: The infant died: By his death the administration ceased, and the mother became entitled, as widow, to the lapsed residue jointly with another infant: Under these circumstances, administration de bonis non, with the Will annexed, was decreed to her (d). It has been said, upon the authority of Limmer v. Every, as reported by Croker (e), that where an executor dies, an administra- having appointed an executor, who is a minor, and an administrator durante minoritate is appointed, he has no authority tion durante minoritate of an executor of to intermeddle with the effects of the original testator, but an administration de bonis non must be granted (f). How an executor. (b) Arnold v. Blencowe, 1 Cox, 426. Ante, p. 224, 250. (c) See ante, p. 405. (d) Akers v. Dupuy, 1 Hagg. 473. (e) Cro. Eliz. 211. (ƒ) 3 Bac. Abr. 13 Exors. (B. 1.) Toller, 118. ever, as the case is reported by Leonard (g), the point decided was merely that such an administrator should sue as administrator of the first testator: And in a later case (h), it was held, on an application for a prohibition, that although an administrator of an executor is not an administrator to the first testator, yet an administrator durante minore ætate is in loco executoris, and may be sued as the executor of an executor may (i). kin 2ndly. With respect to the consequences of the death of an administrator, or of one entitled to administration. It has already been shown, that if a party who, as next of to the intestate at the time of his death, was entitled to administration, dies before letters of administration are obtained, his representative is entitled to the grant in preference to one who has no beneficial interest in the effects, although he may have become next of kin at the time the grant is required (k). several administrators: or sole admi Where administration has been granted to two, and one of one of dies, the survivor will be sole administrator (1); for it is not like a letter of attorney to two, where by the death of one, the authority ceases, but it is an office analogous to that of executor, which survives (m). Upon the death of such of a surviving surviving administrator, or of a sole administrator, in order nistrator: to effect a representation of the first intestate, the Ordinary, whether the administrator died testate or intestate, must. appoint an administrator de bonis non; for an administrator is merely the officer of the Ordinary, prescribed to him by act of Parliament, in whom the deceased has reposed no trust; and therefore on the death of the administrator, no (g) 4 Leon. 58, nomine Limver v. Evorie. (h) Anon. 1 Freem. 288. (i) See also Norton v. Molineux, Hob. 246; and Mr. Smirke's note, in his edition of Freeman, p. 288. (k) Ante, p. 382. (2) Hudson v. Hudson, Cas. temp. Talb. 127, decided by Lord Talbot, after hearing civilians. Eyre (m) Adam v. Buckland, 2 Vern. Who is entitled to administration de bonis non on the death of the original administrator: authority can be transmitted by him to his executor or administrator, but it results to the Ordinary to appoint another officer (n). It remains to be considered who, upon the death of the administrator, is entitled to be appointed administrator de bonis non to the original intestate. The Ecclesiastical Judges have on several occasions laid down, that in all that regards the obligation of the statutes of administration on the Court, in the grant of administration, no distinction exists between an original and a de bonis non administration (o). And in Kindleside v. Cleaver, the Common Law Judges Delegates expressed the same opinion (p). Accordingly, upon the death of an original administrator, a person who was next of kin at the time of the death of the intestate, has been regarded as entitled, under the statute of Hen. VIII., to the de bonis non grant, in preference to the representative of the original administrator, or to the representative of any other next of kin at the time of the death; and hence, in the case where a husband takes out administration to his wife, and dies, the Spiritual Courts for a long time considered themselves bound by the statute (in contravention of convenience, and of the general principle that the right of administration shall follow the right of property), to commit administration de bonis non of the wife, if required, to the next of kin of the wife at the time of her death, as having an absolute statutable right; although the beneficial interest in her effects be in the representatives of the husband (q). But the practice has lately been altered in this respect: And the rule now (n) 2 Black. Comm. 506. (0) Dr. Bettesworth, in Kindleside v. Cleaver, 1 Hagg. 345. S. C. 2 Hagg. Appendix, 169. Dr. Hay, in Walton v. Jacobson, 1 Hagg. 346. (p) See 2 Hagg. Appendix, 170. (q) Kindlesidev. Cleaver, 1 Hagg. 345. S. C. 2 Hagg. Appendix, 169. See ante, p. 359. Yet instances may be found, where, notwithstanding the statute, the Court have denied administration to the next of kin, on the ground of his having no interest. See Young v. Pierce, 1 Freem. 496. Ante, p. 381, 382. |