Page images
[ocr errors][merged small][merged small][ocr errors]

Great Grandfathers


[merged small][ocr errors]

Great Grandfatbot



[ocr errors]


[blocks in formation]



[blocks in formation]


[blocks in formation]


Son of the Nephew or Brother's Grandson,



London. Printed for Mess"-Butterworth &0912. Bell Yard Temple Bar

[sisters (a), and after them grandfathers and grandmothers; for though all these are in the second degree, yet we give the preference to brothers and sisters (6). After all these, come uncles and nephews (c), and the females of each class respectively; and lastly, cousins. 4. The half blood is admitted to the administration as well as the whole, for they are of the kindred of the intestate : and though they were formerly excluded from the inheritance of land, yet this was upon feudal reasons only, which have nothing to do with personal estate. Therefore the brother of the half blood shall exclude the uncle of the whole blood (d); and the court might at its discretion grant the administration either to the sister of the half blood or to the brother of the whole blood (e).] 5. Again, no preference obtains between relatives ex parte paternâ and those ex parte maternâ, but administration may be committed to either (f). As, however, letters of administration are now granted in respect of real estate, as well as, or even in default of, personal estate (g), the Land Transfer Act, 1897 (h), provides that on such grant regard shall be had to the rights of persons interested in the real estate of the deceased ; and that his heir at law, if not one of the next of kin, shall be equally entitled to the grant with the next of kin.

[If none of the kindred will take out administration, a creditor may do it (i). And lastly, the court may, in default of all these, commit administration to such discreet

(a) Prec. Chancery, 527 ; Black borough v. Darix (1701), I P. Wms. 41.

(b) Evelyn v. Evelyn (1753), 1 Amb. 191 ; 3 Atk. 762 ; Toller, Executors, 91.

(c) Blackborough v. Davis, ubi supra.

(d) 1 Ventr. 424.

(e) Aleyn, 36; Styl. 74.

(f) Voor v. Barham (1723), 1 P. Wms. 53.

(g) 60 & 61 Vict. c. 65, s. 1 (3); Re Barnett, [1898] P. 145.

(h) Sect. 2 (4).

(i) Gidley v. Williams (1701), 1 Salk. 38; Re Bradshaw (1887), 13 P. D. 18.

S.C. --11.

[person as it approves of (k); or may grant him letters ad colligenda bona defuncti, which makes him neither executor nor administrator,—his only business (in that case) being to keep the goods in his custody (1), but not to dispose thereof, except in payment of debts and preservation of the estate (m).

And here let us observe, that if a bastard (who has no kindred, being nullius filius), or anyone else that has no kindred, dies intestate, and without wife or child, it was at one time held, that the ordinary might seize his goods and dispose of them in pios usus (n) ; but latterly the usual course, in such cases, was for anyone who could establish a moral claim. to procure letters patent, or other authority from the Crown, and the court would then grant administration to the person therein named (0)]. But the present practice is, to grant administration to the Treasury Solicitor, or to his nominee, on behalf of the Crown (p); and any claim to the goods (whether it be a legal claim or such moral claim as aforesaid) must be established against him within the period of twenty years (9). And the like practice is applicable, when the Prince of Wales in right of his Duchy of Cornwall (r), or the King in right of his Duchy of Lancaster (s), becomes entitled to the goods of bastards.

In what has been stated on this subject, the administration granted is supposed to be a general one ; as is always the case where the deceased dies wholly intestate, without making any will at all. [But it may happen, that he has made a will without naming any executor, or has named an incapable person ; or that the executor may

(k) Davis v. Chanter (1844), 14 Sim. 212; Re Webb (1888), 13 P. D. 71.

(1) Went. ch. 14. · (m) 2 Inst. 398 ; Re Bolton, [1899] P. 186.

(n) Manning v. Napp (1693), 1 Salk. 37.

(0) Jones v. Goodchild (1729), 3 P. Wms. 33..

(p) Re Hartley, [1899] P. 40.

(9) 47 & 48 Vict. (1884) c. 71, s. 2.

(r) Re Griffith (1884), 9 P. D. 63.

(8) Re Avard (1886), 11 P. D. 75.

[refuse to accept the office, or may himself die intestate before he has administered. In any of which cases, the court will grant administration cum testamento annexo, to some other person ; in the choice of whom, it prefers the residuary legatee, if any such be nominated in the will, to the next of kin (t). And we are informed by Glanville, that this species of administration was in use so early as the reign of Henry the Second (u). Again, if there be a sole executor who is under the age of twentyone, a temporary administration, cum testamento annexo et durante minore ætate, may be granted to the guardian of such infant executor, or to such other person as the court shall think fit (x).] For (by the Administration of Estates Act, 1798) (a) probate must not be granted to the infant executor himself, till he attains his majority ; though, if there be several executors named, and any of them be of full age, these latter may act without the co-operation of those under age (6). [So also a temporary administration may be granted durante absentiâ, as when an executor is out of the realm ; or pendente lite, as where a suit is commenced touching the validity of the will (c).

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 (d). And however long may be the series of executors, the ultimate one is still the representative of A. And even

(l) 1 Sid. 281 ; 1 Roll. Ab. 907. (4) L. 7, ch. 6.

(2) Veret v. Duprez (1868), L. R. 6 Eq. 329; Monsell v. Armstrong (1872), ib. 14 Eq. 423.

(a) 38 Geo. 3, c. 87, s. 6.
(6) Wms. Exors., p. 185, 9th ed.

(c) 20 & 21 Vict. (1857) c. 77, ss. 70–78 ; 21 & 22 Vict. (1858) c. 95, ss. 18, 20.

(d) 25 Edw. 3(1352), st. 5, c. 5; Leon. 275 ; 20 & 21 Vict. c. 77, s. 79 ; 21 & 22 Vict. c. 95, s. 16.

« EelmineJätka »