rest and residue of the goods, chattels, and credits which shall be found remaining on his accounts (the same being first examined and allowed of by the judge of the court), unto such person or persons respectively as the judge by his decree or sentence, pursuant to the statute of distribution, shall limit and appoint; and if it shall thereafter appear that any will was made by the deceased, and the executor therein named exhibit the same into the court, making request to have it allowed and approved accordingly, for the administrator's rendering and delivering, on being thereunto required (approbation of such testament being first had and made), the letters of administration in the court.

[98] When administration has been once committed to any of the next of kin, others, even in the same degree of kindred, have, during the life of the administrator, no title to a similar grant; so different is this case from that of an executor, who has a right to probate, though it has been already taken out by his co-executor. The maxim, “qui prior est tempore, potior est jure," applies in the former but not in the latter instance. (b)

SECT. V.

Of special and limited administrations.

THERE are also various classes of administrations, which, although not founded on the letter of any of the above mentioned statutes, fall within their spirit and intendment. (c) As, if no executor be named in the will, the clause for such appointment being wholly omitted, or where a blank is left

(b) 11 Vin. Abr. 116. Thomas v. Butler, 1 Ventr. 218.

(c) Burn, Eccl. L. 237. 11 Vin.

Abr. 94.
Plowd. 279. Walker v.
Woollaston, 2 P. Wms. 582, 589,
590.

for his name, administration shall be granted with the will annexed, when it shall be proved in the same manner as in the case of an executor. (d)

Or if the executor die in the lifetime of the testator, (e) [99] or if the testator name the executor of B. to be his executor, and die in the lifetime of B., for till B.'s death he is in effect intestate. (ƒ)

Or if he name an executor to have authority after a year from his death, for during the year there is no executor; (g) and in such cases administration shall be granted in the interval.

So, if the executor be incapable of the office, the party is said to die quasi intestatus, and the ordinary must grant administration.

So, if an executor is afterwards disabled from acting, as if he become lunatic, then, on the same principle of necessity, there shall be a grant of a temporary administration with the will annexed. (h)

And where a will has been lost, and there is no reason to suppose that the will has been suppressed, a limited administration will be granted, till the original will be found. (hh)

So, in all the above-mentioned instances, if there be a residuary legatee, administration is in general granted to him in exclusion of the next of kin, because in that case the next of kin hath no interest in the property, and the presumption of the statute, that the testator would have given it to him, cannot exist where such a legatee is appointed. (¿) And even where there is no prospect of a residue, a residuary legatee is entitled to an administration de bonis, in preference to legatees and annuitants. (k)

(d) 11 Vin. Abr. 69. Com. Dig. Admon. B. 1. 2 Bl. Com. 503, 504,

508.

(e) 11 Vin. Abr. 85. Sty. 147. (f) Com. Dig. Admon.

(g) Plowd. 279, 281, b.

(h) Fawtry v. Fawtry, 1 Salk. 36, cited Walker v. Woollaston, 2 P.

Wms. 582. In re Crump, 3 Phill.
Rep. 497.

(hh) In re Campbell, 2 Hagg, N. R. 555.

(i) 11 Vin. Abr. 90, 94.

(k) Atkinson v. Lady Barnard, 2 Phill. 316.

If several persons are entitled to the residue, it may be granted to any of them; (7) and if it be thus granted, the other residuary legatees have no claim to a subsequent grant in the lifetime of the grantee.

[100] Such administration may be also granted, although it be uncertain whether there will eventually be a residue or not. (m)

A distinction exists in the spiritual court between an infant and a minor. The former is so denominated if under

seven years of age, the latter from seven to twenty-one. The ordinary ex officio assigns a guardian to the infant. The minor himself nominates his guardian, who then is admitted in that character by the judge. According to the practice of the court, the guardianship in either case is granted to the next of kin of the child, unless sufficient objection to him be shewn, and administration is committed to such appointee for the use and benefit of the infant or minor.

Although, as we have seen, (o) an administration during the minority of an infant executor was, antecedently to the stat. 38 Geo. 3, c. 87, determined on his attaining the age of seventeen, yet administration during the minority of an infant next of kin was always of force until his age of twentyone; on the principle that the authority of an administrator [101] is derived from the stat. of 31 Edw. 3, c. 11, which admits only a legal construction, and therefore it was held he must be of the legal age of twenty-one before he is competent; and the executor comes in by the act of the party, and that he should be capable of the executorship at the age of seventeen was in conformity to other provisions of the spiritual law. (00) And also, which was the more forcible

(4) Com. Dig. Admon. (B. 6). Taylor v. Shore, 2 Jon. 162. 11 Vin. Abr. 94.

(m) Com. Dig. Admon. (B. 6). Thomson v. Butler, 2 Lev. 56. Ventr. 219, S. C.

(n) Com. Dig. Admon. (F.) 11 Vin. Abr. 105.

(0) Supra 31.

(00) 4 Burn. Eccl. L. 238, 239. 1 Freke v. Thomas, Ld. Raym. 667. Com. Dig. Admon. (F.)

reason, because the statute of distributions requires administrators to give a bond, which an infant is incapable of doing. (p)

But now by the above-mentioned stat. 38 Geo. 3, c. 87, reciting, that inconveniences arose from granting probate to infants under the age of twenty-one, it is enacted, that where an infant is sole executor, administration with the will annexed shall be granted to the guardian of such infant, or to such other person as the spiritual court shall think fit, until such infant shall have attained the full age of twentyone years, at which period, and not before, probate of the will shall be granted to him.

If administration be granted to such guardian for the use and benefit of several infants, it ceases on the eldest attaining twenty-one.

If there be several infant executors, he who first attains [102] the age of twenty-one years shall prove the will, and the administration shall cease; (q) but administration granted during the minority of several children will not expire on the marriage of one of them to a husband of full age. (r) Nor, if an infant be executrix, shall it be determined by her taking a husband who is of age. Nor, if there be several infants, by the death of one of them. (rr)

If administration be granted pendente minore ætate, and the minor coming of age takes upon himself the administration, he must give security to the same amount, that the administrator did in the first instance. (s)

If there be two executors, one of whom has attained the age of twenty-one years, and the other not, administration

(p) 11 Vin. Abr. 100, 101. 3 Bac. Abr. 13. Harg. Co. Litt. 89 b, note 6.

(9) 4 Burn. Eccl. L. 240. L. of Test. 473. 474.

(r) Jones v. Earl of Stafford, 3 P.

Wms. 79.

(rr) Jones v. Earl of Stafford, 3 P. Wms. 79. Sed vide Com. Dig. Admon. (F.) and 5 Co. 29 b.

(s) Abbott v. Abbott, 2 Phill. 578.

shall not be granted during the minority of him that is under age, because the former may execute the will. (t)

According to other authorities, (u) administration shall in such case be granted to the one executor during the minority of the other; but they are not warranted by modern practice.

This administration ought not to be committed to a party who is very poor, or in distressed circumstances, though the guardian or next of kin to the infant. When the court of chancery sees reason to think that such administrator will waste or misapply the effects of the intestate to the prejudice of the infant, for whom he is merely a trustee, that court [103] will appoint a receiver of the personal estate, notwithstanding the grant of administration. (v)

It has been held by some, that if such administrator continues the possession of the goods after the full age of the executor, he becomes an executor de son tort; but this is denied by others, and their opinion seems to be more correct, because he came to the possession of the goods lawfully. (w)

In this class is also to be ranked administration pendente lite, while the suit is pending; (x) and it may be granted, whether the suit respects a will or the right of administration. (y) But it is never granted till a plea in the cause has been given in, and admitted.

Nor will the court of chancery, generally speaking, in such case interfere, and appoint a receiver during the litigation. (~)

Of the same species also is administration grounded on

(t) 4 Burn. Eccl. L. 240. Pigot and Gascoigne's case, 1 Brownl. 46. 11 Vin. Abr. 99. Foxwist v. Tremaine, 1 Mod. 47. Hatton v. Mascal, 1 Lev. 181.

(u) 11 Vin. Abr. 97, 98, 99. 3 Bac. Abr. 13. Colborne v. Wright, 2 Lev. 239, 240. S. C. 2 Jo. 119. Smith v. Smith, Yelv. 130.

(v) 11 Vin. Abr. 100. Havers v. Havers, Barnard. 23, 24. (w) 11 Vin. Abr. 98. 1 Sid. 57. (x) 4 Burn. Eccl. L. 237. (y) 3 Bac. Abr. 56. Walker v. Woollaston, 2 P. Wms.575. 11 Vin. Abr. 105.

(2) 4 Burn. Eccl. L. 238. Knight v. Duplessis, 1 Ves. 325.