.

Per Curiam (Sir WILLIAM WYNNE).

Administration is prayed of the goods of William Davis left unadministered by his sister, who in her lifetime conveyed all her interest in the effects of William Davis by a deed of gift to her daughter-in-law, Elizabeth Almes, one of the parties. And the question is, whether Elizabeth Almes or William Almes, the son of the administratrix and the nephew and next of kin of William Davis (but who was not so at the time of the death), is entitled to administration de bonis non.

It is not denied that the entire interest is in her; nor that the other party is fully aware of that fact; for he was a party to the deed. Has, then, William Almes a statutable right by which the Court is bound? When there is a statutable right, the Court always grants it, except in a few instances-that of a residuary legatee for example. William Almes was not next of kin at the time of the death, and had no right nor interest then, nor has he any interest in the effects now. He has, then, no statutable right. I so decided in Savage v. Blythe, where the question was between the executor of the brother (administrator of the deceased) and nephews and nieces, who, though they were not entitled to the administration, would have been entitled in distribution if they had not signed releases. That case I determined on the authority of Sir George Hay's decision, in Lovegrove v. Lewis, affirmed by the Delegates. There, those who were not next of kin at the time of the death were held not to be entitled under the statute to the administration de bonis non, which was granted to the executors of the administrator. The present case is rather stronger than Savage v. Blythe. Where the Court is not bound by the statute, it will always grant the administration to those who have the interest. Then there is no doubt that Elizabeth Almes is entitled.

There must have been some mistake in taking out the decree calling upon the other parties to accept or refuse administration, instead of to show cause why it should not be granted to Elizabeth Almes. There is a kind of inconsistency in this decree with the application for the grant of administration to her. It cannot be the course of office that such should issue: but, as that might have been explained without entering into this petition, it was not necessary to bring the question before the Court; and on this ground I shall not decree the costs to be paid by the person taking out the decree. Let administration pass to Elizabeth Almes.

KINASTON v. MILLS.-p. 158.

Chose in action to wife. Husband, administrator, dies without altering property, and makes a will: his administrator with will annexed takes administration de bonis to the wife; that administration called in by her next of kin and revoked, the property not being altered by the husband.

Margaret Burnet (otherwise Kinaston), the wife of Major William Burnett, died entitled to the sum of 14007., the property whereof the said William had not altered. He took administration to her, and made his will; and died, being killed in a duel. Francis Mills takes out administration to him with the will annexed (no executor being named in the will), and afterwards takes administration de bonis non of Margaret

Burnett. John Kinaston, brother of Margaret and next of kin, cites him to show cause why the administration de bonis should not be revoked and granted to him. Sir Richard Raines, the Judge of the Prerogative Court, revoked the administration accordingly. What belonged to Margaret, being a chose in action, and the property not altered, goes to her next of kin, and not to the executor or administrator of the husband. (a)

(a) In the case of Burnett v. Kinaston, (Prec. in Ch. 118. S. C. 2 Freeman, 239. Trin. Term 1700. which related to the effects of the same party deceased) Sir Nathaniel Wright, Lord Keeper, held that the money there in question, a chose in action, belonged to the administrator de bonis non, and was not distributable among the surviving husband's next of kin; but "the point is now settled that if the husband survive his wife, then he, as her administrator, will be entitled to all her personal estate which continued in action or unrecovered at her death; and although he die before all such property be recovered, yet his next of kin will be entitled to it in equity." 1 Roper, Husband and Wife, 205, and cases there cited.

AMHURST v. AMHURST and BAWDES.-p. 158.

Estate not vested by law or equity, administration de bonis non to the next of kin.

Charles Amhurst makes his will, and Dorothy Amhurst and Lady Selby his executors, who prove it. 10007. legacy is charged on the estate for them. Dorothy dies intestate, and her husband takes administration to her and makes his son executor, who prays administration de bonis non of Dorothy. Charles Selby, a sister's son of Dorothy, prays administration as her next of kin.

Ex parte Selby.

Applying for administration shows the estate not vested; it must be granted to the next of kin, 21 Hen. 8. c. 5. If the estate had been vested in the husband, his executor would have had it without administration. If the husband had been her executor, if the husband and wife had assigned the legacy, or if the husband in his life had taken security, he might have released the legacy; but, not having done it, it no ways vests in him. Though a sentence be given for a legacy, yet if not paid, it will go to the administrator de bonis non. (a) The husband is not to have execution for a debt of the wife's recovered by them. Orphanage money in London, if not recovered, shall be considered as a chose in action, and the husband cannot dispose of it. (b) Administration is to it.(b) follow the interest where there is a residuary legatee. Distributees have an interest vested in them. Before the 31 Edw. 3. c. 11, the ordinary had nothing to do with choses in action. (c) It is held in B. R. that an estate pour auter vie is not distributable.

[Contra.-In Chancery the opinion is, that an estate pour auter vie is distributable. Though the estate be not vested in the husband, yet the interest is which he transfers to his representatives, and the administrator will be trustee for them.1(d)

(a) See, however, Heygate v. Annesley, 3 Bro. Chan. Rep. 362.

(b) Pheasant's Case, 2 Vent. 341.

(c) See Hensloe's Case, 9 Co. 39.

(d) By 14 Geo. 2. c. 20. estates pur auter vie, in case there be no special occupant thereof, are made distributable.

In continuation. The same law is in an administration de bonis non, as in a common administration. It is not discretionary with the ordinary to grant it where the interest is. Whitehill v. Phelps, cited ante, p. 228. In Harcourt v. Lady Smith, Delegates, 1709, "Sir Samuel Astrey made his wife executrix: she married Mr. Harcourt, and died leaving goods unadministered; she not being residuary legatee, the administration de bonis non cum testamento annexo was granted to the sister and next of kin." And in this case the interest was not considered, but only the statute 21 Hen. 8. c. 5. The interest is not considered by the 21 Hen. 8. c. 5, but a proper person to represent the deceased. If the executor does not prove the will, the next of kin shall represent him. If Amhurst were administrator he would only be trustee for the next of kin.

E contra.

The question in the principal case is, whether the interest is vested in the husband: for this case does not depend upon the 21 Hen. 8. c. 5, but rather on the statute of Distributions, where administration is to follow the interest; as in Astrey's case the residue not being disposed of belonged to the next of kin. This was the opinion of the Prerogative Court and of the Delegates. The ordinary was administrator before the 31 Edw. 3. c. 5. That statute directed administration to be granted to the next of kin. A dispute arose thereupon, whether the wife was not next of kin, and administration to be granted to her, which occasioned the statute 21 Hen. 8. c. 5. Upon that, inquiry was made whether the husband was next of kin to the wife and determined,—in Ognel's case, 4 Co. 51; Johns v. Rowe, Cro. Car. 106,-that administration did belong to the husband mero jure. Hughes' case was the cause of the statute of Distributions, (a) and the law therein makes the intestate's will; and if the party having a right to distribution, die before all is collected, his next of kin shall have administration, and not the next of kin of the first intestate. (b) The husband is the next of kin, and has a right to the whole, for the law has made the wife's will, and vested all her right in him. The universal legatee, and not the next of kin, shall have the administration, where there is no executor. Even a residuary legatee is preferred to the next of kin. Isted v. Stanley, Dyer, 372. Thomas v. Butler, 1 Ventris, 217. In the case of Culpepper v. Porter, 1681, "Porter married Culpepper, who had a legacy of 1000%. left her by her father. After her death, the husband takes administration to her, and dying makes his son executor, who takes administration de bonis non to Mrs. Porter, formerly Culpepper, and is called upon by the next of kin of Porter, to show cause why it should not be revoked. The administration is confirmed to the executor against the next of kin." Every legatee has an immediate interest. The husband had a right to the legacy left to his wife, which he transmitted to his executors. In Early v. Cole, "Early made his will, and gave a legacy of 50l. to his daughter: she married: 207. of the legacy was left unpaid at the death of

(a) Hughes v. Hughes, 1 Lev. 233. On prohibition, the Court of King's Bench resolved, "that the Ecclesiastical Court could not oblige an administrator to a distribution, and that their bonds taken to that intent were void." The arguments are reported in Carter, 125, and at the conclusion is the passage that follows:-"Et puis per act del Parliament pur melieux settlement des intestates estates fuit contrived." (b) Brown v. Shore, Carth. 52, 1 Show. 25. Palmer v. Allicock, 3 Mod. 58.

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her and her husband, who survived. The husband's brother and wife's mother apply for administration; it was granted to the husband's brother." Arrears of rent due to the wife shall go to the executors of the husband, 32 Hen. 8. c. 37.

Per Curiam (Sir CHARLES HEDGES).

This estate, not being vested either by law or statute,(a) by the 21 Hen. 8. c. 5, the administration must be granted to the next of kin. Administration of part of the estate must go as the administration of the whole would do. As it is an intestate's estate of a chose in action not recovered, it must go to the next of kin.

(a) Lord Chancellor Cowper and Lord Chancellor Parker, however, held that the wife's choses in action did vest in the husband by the statute of distributions. See Squib v. Wyn, 1 P. Wms. 381. So did Lord Hardwicke, in Humphrey v. Bullen, 1 Atk. 458, and in Elliot v. Collier, 1 Ves. 15.; 3 Atk. 527; 1 Wilson, 169.

REES v. CART.(a)-p. 161.

Administration of the wife's goods to the executor of the husband, who died without taking administration to her.

ANN CHURCH made her will, dated 2d February, 1709, and made John Church Metcalfe, sen., one of her executors and her residuary legatee. Elizabeth Metcalfe made her will and likewise Metcalfe, sen. her executor and residuary legatee. He took probate of both wills; made his own will, and his wife Jane his executrix and residuary legatee,-leaving goods of Ann Church and Elizabeth Metcalfe unadministered. Jane Metcalfe proved his will, and afterwards married John Rees. She died on 10th June 1717. No administration was taken to her. John Rees died in August 1717, having made his will, and his brother, Richard Rees, executor. Richard proved the will in the Archdeacon's Court of Middlesex. In October 1717, Jane Cart (mother of Jane Rees, alias Metcalfe) applies for administration to her. A caveat is entered by Barbara Jordan and John Church Metcalfe, a minor. Jordan-as surviving daughter of Ann Church-prays administration de bonis non to her. John-as grandson to Elizabeth Metcalfe, and great grandson of Ann Church, and nephew to John Church Metcalfe sen., prays administration de bonis non to them to be granted for his use, before the grant of Jane Cart's, (alias Metcalfe's, alias Rees') administration to her mother. (Richard Rees was not cited, and no ways a party to the caveat.) No interest appearing to bar Jane Cart from having the administration to her daughter, the Court granted it to her; and by virtue thereof she obtained letters of administration de bonis non to John Church Metcalfe, sen. Elizabeth Metcalfe and Ann Church. Afterwards Richard Rees calls her by process to shew cause why the administration should not be revoked and granted to him, being executor of his brother who was husband to Jane Rees, alias Metcalfe.

Ex parte Rees. (b)

(a) Cited in Squib v. Wynn, 1 P. Wms. 381. Viner, Executors (K.) 22. (6) In the arguments in this case, and in St. Aubyn v. Page, and in Plaidel v. Howe, (infra, pp, 236, 7.) the passages that seemed to be a mere repetition of the arguments in Amhurst v. Amhurst, supra, 232. have been omitted.

It is still res integra as to Richard Rees, he never having been cited or any way precluded. Where the whole interest is vested, administration must go with the interest, and not according to the statute. Isted v. Stanley, Dyer, 272. Thomas v. Butler, 1 Ventris, 217. Ognel's case, 4 Co. 51. Johns v. Rowe, Cro. Car. 106. Wilson v. Drake, 2 Mod. 20. The husband is not obliged to distribute. It makes no alteration that the husband did not take administration; for the administration continues no privity: but the interest being once vested is transmissible, the right not depending on the 21 Hen. 8. c. 5. but on the statute of Distributions; and the executor has the same right as the husband had. Hares succedit in universum jus quod defunctus habuit. Earl of Winchelsea v. Norcloff, 2 Reports in Chancery, 165. Brown v. Shore, 1 Show. 25. Palmer v. Allicock, 3 Mod. 58. That the administration must go with the interest and not with the blood was determined in this very case, when the administration de bonis non was granted to Jane Cart, and Jordan and John Church Metcalfe were refused by the Court. The same has been determined in other cases, Culpepper v. Porter, cited in Amhurst v. Amhurst, ante, 233. Early v. Cole, ibid.

E contra.

The mother is in possession of a simple administration to Jane Rees alias Metcalfe. The administrations with the will annexed depend upon that. Simple administrations are always governed by the statute. The interest is not considered. A man dies intestate leaving two children; one dies leaving a child; that child cannot have the administration, though equal in interest. John Metcalfe, the minor, was not the next of kin to Jane Rees, and therefore was refused. Upon her death the privity was discontinued. The husband not being administrator to her could have no right after her death. Astrey's case. Amhurst's case, supra, 232-3.

In reply. In the cases of Astrey and Amhurst there was no residuary legatee.

Per Curiam (Dr. BETTESWORTH).

The only question is, whether the administration ought to follow the interest or the blood. If the husband had taken administration, there is no doubt that the whole property had vested in him. Whether, then, his not having done it, shall bar his executor. The interest being in him, the executor may at any time take the administration the husband was entitled to. The administration to Jane Rees, and the de bonis non administrations to Church and Metcalfe ought to be revoked and granted to the executor.

Note. The case of Powell v. Trigges, 1727, 2d October, was inserted among the list of cases, in support of the husband's representatives, by Dr. Simpson in his Report of Rees v. Cart. It appears from the Assignation-book that Powell, the sister of the deceased, called in the administration granted to Trigges; but the Court directed it to be re-delivered to Trigges. No other particulars can be discovered.

ST. AUBYN v. PAGE.-p. 163.

Administration of a feme covert, granted to the daughter of the third husband, revoked, and granted to the grand-children by her first husband; it being shown that an estate would come to them.