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[letters-patent, or other authority from the Crown; and then the court will of course grant administration to such appointee of the Crown (b).]

In what has been stated on this subject the administration granted is supposed to have been a general one, as is always the case where the deceased died wholly intestate, without making either will or executor. But it may happen that he has made a will without naming any executor, or has named an incapable person, or the executor may refuse to act, or may die intestate (c). [In any of these cases, the court must grant administration cum testamento annexo (d), to some other person;] in the choice of whom it must prefer the residuary legatee to the next of kin (e). And this species of administration was in use [so early as the reign of Henry the second, when Glanvil (ƒ) informs us, that "testamenti executores esse debent ii, quos testator ad hoc elegerit, et quibus curam ipse commiserit; si vero testator nullos ad hoc nominaverit, possunt propinqui et consanguinei ipsius defuncti ad id faciendum se ingerere."]

The title by administration never devolves from one person to another, by representative right; in which respect it differs from the title by will. For [the interest vested in the executor, by the will of the deceased, may be continued and kept alive by the will of the same executor: so that the executor of A.'s executor is to all intents and purposes the executor and representative of A. himself (g);] and, however long may be the series of executors, the ultimate one is still the representative of A.; [but the executor of A.'s administrator, or the administrator of A.'s executor, is not the representative of A. (h). For the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is there

(b) Jones v. Goodchild, 3 P. Wms. 33. As to the inability of a bastard to claim under an intestacy, vide post, p. 305.

(c) Vide 2 Bl. Com. 503, 505.
(d) 1 Roll. Ab. 907; Comb. 20.

(e) 2 Bl. Com. 505, cites 1 Sid. 281; 1 Vent. 219.

(f) L. 7, c. 6.

(g) Stat. 25 Edw. 3, st. 5, c. 5; 1 Leon. 275.

(h) Bro. Ab. tit. Administrator, 7.

[fore allowed to transmit that power to another, in whom he has equal confidence; but the administrator of A. is merely the officer of the court, prescribed to it by act of parliament, in whom the deceased has reposed no trust at all: and therefore, on the death of that officer, it results back to the court, to appoint another. And, with regard to the administrator of A.'s executor, he has clearly no privity or relation to A.; being only commissioned to administer the effects of the intestate executor, and not of the original testator. Wherefore, in both these cases, and whenever the course of representation from executor to executor is interrupted by any one administration, it is necessary for the court to commit administration afresh, of the goods of the deceased not administered by the former executor or administrator.] But this administrator de bonis non, [may, as well as an original administrator, have only a limited or special administration committed to his care, viz. of certain specific effects, such as a term of years, and the like; the rest being committed to others (i).]

Every person to whom administration is granted must give bond to the judge of the Court of Probate, (and, if so required, with one or more sureties,) conditioned for duly collecting and administering the estate; and if the condition shall be broken, the bond is to be assigned by the court to some person to be chosen; who is to be entitled to sue upon the same in his own name, and to recover, as trustee for the parties interested, the full amount recoverable thereon (k).

IV. Our last general head of inquiry involves the consideration of some principal points relative to the office and duty of executors and administrators; and we will in the first place refer to the well-known principle applicable without distinction to both, that they represent, in all matters in which the personal estate is concerned, the person of the (k) 20 & 21 Vict. c. 77, ss. 81-83.

(i) 1 Roll. Abr. 908; Godolph. p. 2, c. 30; Salk. 36.

VOL. II.

P

testator (1), as the heir does that of his ancestor; so that the heirs and executors (or administrators) of a deceased party, are sometimes compendiously described as his real and personal representatives. And in illustration of this principle, we may further observe, that the executors and administrators have the same property in the chattels (m) of their testator or intestate (including his chattels real), as he himself had when living (n); and in general succeed to his rights of action; and are subject, on the other hand (so far as these assets (0) in their hands are concerned) to his liabilities (p). As to the duties incumbent upon executors and administrators respectively, these are in general very much the same; [excepting, first, that the executor is bound to perform a will, which an administrator is not, unless where a testament is annexed to his administration, and then he differs still less from an executor; and, secondly, that an executor may do many acts before he proves the will (q), but an administrator may do nothing till letters of administration are issued (r); for the former derives his power from

(1) Co. Litt. 209.

(m) By 8 & 9 Vict. c. 97 (altering the provisions of 1 Geo. 1, c. 19, and other Acts relating to testamentary dispositions of property in the public funds), it is provided, that, notwithstanding any specific bequest of any public stock standing in the books of the governor and company of the Bank of England, such stock may be transferred by the executor, or administrator cum testamento annexo, of the party making such bequest, after probate of the will or letters of administration shall have been left at the Bank for registration thereof. (n) Foster v. Bates, 12 Mee. & W. 233.

(0) The word assets is applied to personal estate in the hands of the executor or administrator, as well as to real estate in the hands of the

heir. As to its use in the latter sense, vide sup. vol. 1. p. 426.

(p) See 4 Edw. 3. c. 7; 3 & 4 Will. 4, c. 42; Powell v. Rees, 7 Ad. & El. 426; Wentworth v. Cock, 10 Ad. & El. 42; Prior v. Hembrow, 8 Mee. & W. 873. Independently of his liability in respect of assets, an executor may, in certain cases, become personally liable upon contracts made by himself, though made in his representative character. On this subject, see Waite v. Gale, 2 Dowl. & L. 925.

(7) Wentw. ch. 3; 1 Salk. 299; Whitehead v. Taylor, 10 Ad. & El. 210.

(r) See Lucy v. Walrond, 3 Bing. N. C. 841. As to the doctrine of relation, by which the letters of administration are held to relate back to acts done between the death and

[the will and not from the probate (s); the latter owes his entirely to the appointment of the court. If a stranger takes upon him to act as executor, without any just authority, (as by intermeddling with the goods of the deceased (t), and many other transactions (u),) he is called in law an executor of his own wrong, de son tort, and is liable to all the trouble of an executorship, without any of the profits or advantages (x): but merely doing acts of necessity or humanity, as locking up the goods, or burying the corpse of the deceased, will not amount to such an intermeddling as will charge a man as executor of his own wrong (y). Such a one cannot bring an action himself in right of the deceased (z); but actions may be brought against him. He is chargeable with the debts of the deceased, so far as assets come to his hands (a); and, as against creditors in general, shall be allowed all payments made to any other creditor in the same or a superior degree (b), himself only excepted (c). And though, as against the rightful executor or administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages (d); unless, perhaps, upon a deficiency of assets, whereby the rightful executor. be prevented from satisfying his own debt (e).] But let us now see what are the power and duty of a rightful executor or administrator ;-premising only, that wherever he finds any difficulty in the execution of that duty, he may always protect himself from responsibility by applying to

may

their being taken out, see Morgan

v. Thomas, 8 Exch. 302; Bodger v.
Arch, 10 Exch. 333.
(s) Comyns, 151.
(t) 5 Rep. 53, 34.

(u) Wentw. ch. 14; stat. 43 Eliz. c. 8.

(x) Carmichael v. Carmichael, 2 Phill. 101. See Meyrick v. Anderson, 14 Q. B. 726.

(y) Dyer, 166. See Serle v. Waterworth, 4 Mee. & W. 9.

(z) Bro. Ab. tit. Administrator, 8. (a) Dyer, 166; Meyrick v. Anderson, 14 Jur. (Q. B.) 457.

(b) 1 Chan. Cas. 33.

(c) 5 Rep. 30; Moor, 527. As to the effect of payments made to an executor, de son tort, see Thompson v. Harding, 2 Ell. & Bl. 630.

(d) 12 Mod. 441; Parker v. Kett, ubi sup.

(e) Wentw. ch. 14.

have the estate administered under the direction of the Court of Chancery, and that a similar application may be also always made on behalf of creditors (ƒ).

1. [He must bury the deceased in a manner suitable to the estate which he leaves behind him. Necessary funeral expenses are allowed, previous to all other debts and charges (g); but if the executor or administrator be extravagant,] or misapply the assets, in this or in any other particular, it amounts in technical language to a devastavit, that is, to a [devastation or waste of the substance of the deceased; and shall only be prejudicial to himself, and not to the creditors or legatees of the deceased (h).

2. The executor, or the administrator durante minore ætate, or durante absentiâ, or cum testamento annexo, must prove the will of the deceased;]—and, in default of any will, the person entitled to be administrator must also, at this period, take out letters of administration;—of both which proceedings enough has been already said.

3. [The executor or administrator is to make an inventory (i) of all goods and chattels,] or in other words all personal estate, (including chattels real,) [whether in possession or action, of the deceased, which he is to deliver in to the court, upon oath, if thereunto lawfully required.

4. He is to collect all the goods and chattels so inventoried ;] and to that end is to commence suit or action, if necessary, against persons who withhold them (k); and as all the personal estate of the testator or intestate, whether

(f) Vide post, book v. c. xiv. (g) As to funeral expenses, vide Hancock v. Podmore, 1 Barn. & Adol. 260; Bisset v. Antrobus, 4 Sim. 512; Rodgers v. Price, 3 You. & Jer. 28; Lucy v. Walrond, 3 Bing. N. C. 841; Corner v. Shew, 3 Mee. & W. 350, 357; Green v. Salmon, 3 Nev. & P. 388.

(h) Shelley's case, 1 Salk. 296; Godolph. p. 2, e. 26, s. 2; Camden

v. Fletcher, 4 Mee. & W. 378.

(i) Stat. 21 Hen. 8, c. 5. See Griffiths v. Antony, 5 Ad. & El.

623.

(k) As to requiring him to produce probate or letters of administration, see Webb v. Atkins, 14 C. B. 401. As to the liability of an executor or administrator to costs, see 3 & 4 Will. 4, c. 42, s. 31; Farley v. Briant, 3 Ad. & El. 839.

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