Transmission of office of executor. Executor of an executor. creditors or claimants to follow the assets into the hands of those who have received them (1). The position of an executor is based upon the personal confidence of the deceased. It follows as a logical consequence from this that the executor so appointed may transmit his power to another in whom he has a similar confidence. So long, therefore, as the chain of representation founded on personal confidences is unbroken, the last executor represents the original testator. The administrator of an executor is, however, only an officer of the Court, in whom no personal confidence is reposed, and on his appointment the chain is broken, and he has no connection with the estate of the original testator (2). Suppose A. accepts and acts in the executorship of B., but dies before that executorship is complete. He leaves a will, and appoints C. executor. Can C., if he proves A.'s will, renounce the executorship of B.? It has been decided that C. by accepting office of executor to A. becomes the representative of B., and is bound to administer B.'s estate. An executor cannot renounce probate of the first will and take probate of the second (3). (1) Clegg v. Rowland, L. R. 3 Eq. 368; Wood v. Weightman, L. R. 13 Eq. 434; Newton v. Sherry, 1 C. P. D. 246. It has been decided that there is no absolute rule that a notice to creditors and others, under sect. 29 of Lord St. Leonards' Act (22 & 23 Vict. c. 35), must be in a London paper, or that a month must be allowed for bringing in claims, and that in deciding whether a notice is sufficient the Court will give regard to all circumstances, e.g., the residence of the testator-his position in life: Re Bracken, 43 Ch. D. 1. (2) Williams on Executors, p. 258, et seq. (3) Hallilay's Digest, p. 32, citing Brooke v. Haymes, L. R. Eq. 25; Re Perry, 2 Curt. 655. It should be borne in mind that an executor (by 1 Wm. 4, c. 40) holds undisposed of residue in trust for the next of kin of his testator. Administration with the will annexed is granted in the Adminisfollowing cases : tration with the annexed. (1) Where no executor is appointed, or the executor appointed will under the will dies before the testator, or before he has proved the will, or where he is incapable of acting. (2) Where the person appointed refuses to act. (3) Where the executor dies intestate after proving the will, but without having fully administered the estate. (4) Where the Court appoints an administrator under the 73rd section of the Probate Act (1). The Court, in granting administration with the will annexed, prefers the claim of the residuary legatee to that of the next of kin or of a pecuniary legatee, the reason being that, as he takes only the residue, he is, therefore, interested in keeping down charges, so that the residue may be as large as possible (2). LETTERS OF ADMINISTRATION. Letters of administration may be defined as an authority Letters of granted by the Probate Division, under the seal of the Court, to the administrator named therein, to duly administer the personal estate of a deceased intestate (3). administration. The order in which administration is granted to the next of Order in "the order of preference," as it is sometimes called, is as follows: kin, (1) Husband or wife. (1) See In the Goods of Batterbee, 14 P. D. 39. (2) Browne on Probate, p. 151; Williams on Executors, 8th ed. p. 1464. See In the Goods of Covell, 15 P. D. 8. (3) See as to time when Statute of Limitations begins to run, Atkinson v. The Bradford Third Equitable Benefit Building Society, 25 Q. B. D. 377. which administration is granted. Order in which administra tion is granted. Deaths of husband and wife. Married woman administratrix. Grant to creditor. Administration bond. Security. (2) Child or children. (3) Grandchild or grandchildren. (4) Great-grandchildren until the direct lineal descendants of the intestate to the remotest degree are exhausted. (5) Father. (6) Mother. (7) Brothers and sisters. (8) Grandfathers or grandmothers. (9) Nephews and nieces, uncles, aunts, great-grandfathers or great-grandmothers. (10) Great-nephews, great-nieces, &c. (of whom all, in an equal degree, are equally entitled) until the collateral relations of the intestate to the remotest degree are exhausted. It has been decided that where the deaths of the husband and wife have taken place at about the same time, viz., where there is no evidence that one survived the other, the next of kin of each is entitled to a grant of administration (1). Since the Married Women's Property Act, 1882, when a married woman is administratrix, it is not necessary that her husband should join in the administration bond. "A husband," said the President, "incurs no responsibility by reason of his wife accepting the office of administratrix, and, as the grant confers no benefit upon him, the reason for the old practice fails and his concurrence is no longer necessary (2). In the year 1877 the President laid down the practice that administration should not be granted to a creditor (whether the other creditors are present or not to make objection), unless he enters into a bond to pay all the debts pro rata, i.e., rateably, if so required by the Court (3). A marked difference between the practice in regard to probate and administration arising from the different nature of the offices of executor and administrator is, that as the testator has reposed a personal confidence in the executor, no security is necessary from him, while, on the other hand, all administrators, without exception, must find security for faithfully administering the estate. The bond is in a penalty of double the amount of the estate, unless it be thought fit to reduce it. A case of some importance on this subject was recently decided. An estate was being administered in the Chancery Division, and an order had been made directing that each individual share of the property should be paid directly to the (1) Wheeler, 31 L. J.. Prob. 40. (3) In the Goods of Brackenbury, 2 P. D. 272. parties entitled. Under these exceptional circumstances the judge, while stating that the Court as a general rule, was averse to dispensing with justifying securities, allowed the security to be limited to twice the amount of the applicant's beneficial interest (1). tion of Where a person has not been heard of for seven years the PresumpCourt will presume that he is dead, but will not make any death. presumption as to the time when he died. In a case where administration was applied for, and the estate consisted in part of a policy of insurance on the life of the person whose death the Court was asked to presume, the Court ordered notice of the application to be given to the insurance company. The principle upon which the judge proceeded was, that those who were interested in showing that the man was alive ought to have an opportunity of doing so if they could (2). misconduct. In a very recent case (3) where a man had died intestate, and Charges of an application was made for a grant of administration to his father, passing over his widow, against whom charges of misconduct were made, the judge said that he did not think that such a grant had ever been made without giving the person against whom such charges were alleged an opportunity of answering them, and that to do so would be to open a very wide door to misrepresentation, and he accordingly required that the widow should be cited. The Court has power, in cases where it is necessary or convenient by reason of the insolvency of the estate of the deceased, or other special circumstances, to appoint some person to be administrator of the personal estate of the deceased other than the person who would have been entitled to the grant (*). (1) Re Paxton, 14 P. D. 40, and see In the Goods of Morris, 15 P. D. 9. See as to grant to official receiver in bankruptcy, In the Goods of Cope, 15 P. D. 107, and as to grant ad colligendum being given to a creditor where there are no known relatives of a deceased widow, In the Goods of Anne Ashley, 15 P. D. 120. (2) In the Goods of H. T. Barber, 11 P. D. 78, and see In the Goods of Amelia Clark, 15 P. D. 10. (3) In the Goods of Middleton, 14 P. D. 23. (*) 20 & 21 Vict. c. 77, s. 73; In the Goods of Elizabeth Wensley deceased, 7 P. D. 13. Appointadministrator by the Court. ment of VOL. II. 3 T Definition. Entry of caveat. Caveat. Entry and notice of caveat. Rules as to caveats. CHAPTER VII. CONTENTIOUS BUSINESS. Contentious business is defined by the statute (Court of Probate Act, 1857) to include everything that is not common form except the warning of caveats (1). The first step in the direction of litigation in probate proceedings, though of course proceedings are not really commenced until an action is commenced by the issue of a writ, is the entry of a caveat. A caveat is a caution or notice to the principal registrar, or to the registrar of the district in which the deceased died, to do nothing in the matter of the deceased's estate without notice to the person lodging it or his solicitor. Any person may enter a caveat regarding a deceased person's estate, and when he has done so a notice must be served upon him by the executor or administrator of any steps he purposes to take in relation to the estate either under the will or under intestacy. The rules in the principal registry relating to caveats are: rule 59, which deals with the entry of the caveat; rule 60, which deals with its date and duration; rule 61, which deals with the notice of entry; and rule 62, which points out the grants not affected by the caveat. Rule 59. Any person intending to oppose the issuing of a grant of probate or letters of administration must, either personally or by his proctor, solicitor, or attorney, enter a caveat in the principal registry, or in a district registry; if in the principal registry, the person entering the caveat must also insert the name of the deceased in the index to the caveat book. Rule 60. A caveat shall bear date on the day it is entered, and shall remain in force for the space of six months only, and then expire and be of no effect; but caveats may be renewed from time to time. (') The procedure and practice in common form, in the Probate Division of the High Court, are the same as were in force in the Court of Probate before the passing of the Judicature Act, 1873. |