the incapacity of the next of kin at the time of the intestate's death, arising, for instance, from taint or excommunication, [104] madness, or bankruptcy. If such incapacity be afterwards removed, such administration may be avoided. (a)

To this description also must be referred administration granted at common law, durante absentiá, during the absence of the executor or next of kin from the kingdom; and it of course ceases on the appearance of the executor or next of kin, and his taking out probate or administration. (b) But where a person entitled to administration was resident in France, the court said it would expect due notice to be given to him, before it granted administration to another party. (bb) And so also where the next of kin is resident in the West Indies. (cc) And whenever the court exercises its discretion in making a grant durante absentiâ, it is on the ground that there is no legal representative. The 38 Geo. 3, c. 87, only authorizes the grant of a limited administration durante absentia of the executor, when there are proceedings depending in chancery. (dd)

Under this head is also comprised administration granted to a creditor: such administration in general is warranted only by custom, and not by any express law, and may be granted where it is visible the next of kin cannot derive any benefit from the estate; but that is to be understood only where they refuse the grant, and the course is for the ordinary to issue a citation for the next of kin in special, and all others in general, to accept or refuse letters of administration, or shew cause why the same should not be granted to a creditor. (c)

And by the aforesaid stat. 33 Geo. 3, c. 87, if, after the

(a) Com. Dig. Admon. B. 1. Fawtry v. Fawtry, Salk. 36.

(b) Roll. Abr. 907. Lutw. 842. Slaughter v. May, Salk. 42, and vide supra, 70.

(bb) Goddard v. Cressonier, 3 Phill. Rep. 637.

(cc) Miller v. Washington, 3

Hagg. N. R. 277.

79.

(dd) In re Davies, 2 Hagg. N. R.

(c) 4 Burn. Eccl. L. 230. 2 BI. Com. 505. Blackborough v. Davis, Salk. 38. Com. Dig. Admon. B.

6.

expiration of twelve calendar months from the testator's [105] death, the executor to whom probate had been granted shall be residing out of the jurisdiction of his majesty's courts, on application of any creditor, next of kin, or legatee, grounded on an affidavit, in the form therein specified, stating the nature of his demand and absence of the executor, such administration shall be granted.

Administration with the will annexed may be granted to a creditor, limited to filing a bill in equity. (cc)

Of the same nature is administration committed by the ordinary, in default of all the above-mentioned parties, to such discreet person as he shall approve. (d)

The jurisdiction of granting these administrations results from the ordinary's original power at common law, by which he may make the grant to whom he pleases; and therefore it is held, that he may in these cases, as not having been expressly provided for, impose on the grantee such terms as he may think reasonable. (e)

Hence, where the executors renounced, and the residuary legatee moved for a mandamus to the ecclesiastical judge to be admitted to prove the will, and have administration with the will annexed, on shewing cause the court held that the matter was left to the election of the ordinary, and discharged the rule. (f)

[106] So, where a grandfather moved for a mandamus to such judge to grant him administration of the effects of his deceased son during the minority of his grandson, the court refused the application. (g)

On the same principle, where, on the renunciation of the next of kin, several creditors apply for administration, though

(cc) Woolley v. Green, 3 Phill. Rep. 314.

(d) 2 Bl. Com. 505.

(e) 4 Burn. Eccl. L. 237. 3 Bac. Abr. 13. Ld. Grandison v. Countess of Dover, Skin. 155. Walker v. Woollaston, 2 P. Wms. 582, 589, 590. Briers v. Goddard, Hob. 250.

Thomas v. Butler, 1 Ventr. 219.
Smith's case, Stra. 892.
Rex v.
Bettesworth, ib. 956.

(f) 4 Burn. Eccl. L. 231. Rex. v. Bettesworth, Stra. 956, Com. Dig. Admon. B. 6.

(g) 4 Burn. Eccl. L. 231. Smith's case, Stra. 892.

the court may prefer any one of them, (h) yet, on the petition of the others, it will compel him to enter into articles to pay debts of equal degree in equal proportions, without any preference of his own.

And where an administration is discretionary in the court, it will be granted to the person most likely to manage the property advantageously to a residuary legatee in preference to the next of kin to creditors (where the estate is insolvent), in preference to the next of kin, or a guardian elected by a minor. (hh)

So the court will also grant administration to a bond creditor, who has also a mortgage on leasehold property. (i)

There may be also a limited or special administration committed to the party's care, namely of certain specific effects, as of a term for years (ii) and the like, and the rest may be committed to others, or for effects of the intestate in this country or place to one, and for effects in that country or place to another; and as well in general cases, as in the case above stated, of the wife, and next of kin. (k) But several administrations cannot be granted in respect of one and the same thing; as a house, or a bond, or any other debt. For it would be absurd that two persons should have a distinct right to an individual chattel, or chose in action. (1) In respect however to creditors, such several administrators are [107] all considered as one person, and may be sued accordingly. (m)

Administration also may be granted on condition, as where a former grantee is outlawed, and in prison beyond sea, it may be committed to another, but so as, if the first grantee shall return, he shall be entitled to administer. (n)

(h) Harrison v. All Persons, 2 Phill. Rep. 249.

(hh) West v. Willby, 3 Phill. Rep. 374. In re Gill, 1 Hagg. N. R. 342. (i) Roxburgh v. Lambert, 2 Hagg. N. R. 557.

(ii) In re Powell 3 Hagg. N. R. 195. Crossley v. Archdeacon of Sudbury, ib. 197.

(k) Com. Dig. Admon. B. 7. Roll. Abr. 908. Vide supra, 87.

(1) 3 Bac. Abr. 57. Roll. Abr. 908. Fawtry v. Fawtry, Salk. 36. Vide supra, 98.

(m) 11 Vin. Abr. 139. Rose v. Bartlett, Cro. Car. 293.

(n) Com. Dig. Admon. B. 7. Roll. Abr. 908. 11 Vin. Abr. 70.

The ordinary also, in default of persons entitled to the administration, may grant letters ad colligendum bona defuncti, and thereby take the goods of the deceased into his own hands, and thus assume the office of an executor or administrator in respect to the collecting of them; but the grantee of such letters cannot sell the effects without making himself an executor de son tort. The ordinary has no such authority, and therefore he cannot confer it on another. (o)

If a bastard, who, as nullius filius, hath no kindred, or any other person having no kindred, die intestate, and without wife or child, it hath formerly been holden that the ordinary could seize his goods, and dispose of them to pious uses; but now it seems settled that the king is entitled to them as ultimus hæres; yet in such case it is the practice to transfer [108] the royal claim by letters patent, or other authority from the crown, with a reversion, as it is said, of a tenth, or other small proportion of the property, and then the ordinary of course grants to such appointee the administration. (p)

It has indeed been asserted that such letters patent are merely in the nature of a recommendation; and that though it be usual for the ordinary to admit such patentee, yet it is rather out of respect to the king than strictly of right. (q)

Where an intestate bastard was drowned with his wife and only child, administration was granted to a creditor, the king's proctor having been cited and not appearing. (99)

Administration may also be granted to the attorney of all the executors, or of all the next of kin, provided they reside out of the province: but if the effects are under twenty pounds, such administration may be granted, whether they are so resident or not.

A grant of administration in a foreign court, as for example

(0) 4 Burn. Eccl. L. 241. 11 Vin. Abr. 87. Off. Ex. 174, 175. 2 Bl. Com. 505.

(p) Com. Dig. Admon. A. 11 Vin. Abr. 88. Jones v. Goodchild, 3 P. Wms. 33. 1 Wooddes. 398.

H

Dougl. 548.

(q) 11 Vin. Abr. 86. Manning v. Napp, 1 Salk. 37.

(99) Collin v. H. M. Proc. Gen. 1 Hagg. Rep. 92.

at Paris, is not taken notice of in our ecurts of justice. (r) But a grant of administration in Bombay will prevail over administration granted here to another person. 's)

[109] SECT. VI.

Of administrations to intestate seamen and marines.

WITH regard to the administration of the wages, pay, prizemoney, bounty-money, or allowance of money of such petty officers, and seamen, non-commissioned officers of marines, and marines, as are above-mentioned, in respect of services in his majesty's navy by the before-cited stat. 55 Geo. 3, c. 60, it is enacted, that the party claiming such administration shall send or give in a note or letter to the inspector of seamen's wills, stating his place of abode, and the parish in which the same is situate, the name of the deceased, the name of the ship or ships to which he belonged, and that he has been informed of his death, and requesting the inspector to give such directions as may enable him to procure letters of administration to the deceased; upon receipt whereof the inspector shall send or cause to be sent, by course of post, under cover to the minister, officiating minister, or curate of the parish wherein the claimant shall reside, a petition or paper containing a list of the degrees of kindred to the tenth degree inclusive, with blanks for the time and place of the intestate's birth, and the ship he belonged to, and that the party had obtained information of his death, with blanks for the place where, and the time when it happened, without leaving a will, to the best of the party's knowledge and belief, and applying to the inspector for a certificate, to

(r) Tourton v. Flower, 3 P. Wms. 371. Vide supra, 72.

(s) Currie v. Bircham, 1 Dowl. & Ryl. 35.