[127] the second shall be valid, though committed after the grant of the first, and before the repeal of it. (t) If the ecclesiastical courts, in the granting or repealing of administrations, shall transgress the bounds which the law prescribes to them, a prohibition from the temporal courts shall be awarded, as in the case above-mentioned, where the ordinary has granted a regular administration, and is proceeding to repeal it on insufficient grounds, such as maladministration, (u) or that the letters issued after a caveat entered: (v) but no prohibition to the ecclesiastical courts shall issue on suggestion, that they are about to repeal an administration granted by surprise, or that they refused to commit the administration to the intestate's next of kin, but were proceeding to grant it to another, for the point, who is in fact next of kin, is of spiritual cognizance, and must be contested before the spiritual jurisdiction. (w) How far the repeal of an administration affects the intermediate acts of the former administrator remains now to be considered. And here we must again recur to the distinction between [128] such administrations as are void, and such as are only voidable. If the grant be of the former description, the mesne acts of such administrator shall be of no validity; as, if administration be committed on the concealment of a will, and afterwards a will appear; inasmuch as the grant was void from its commencement, all acts performed by the administrator in that character shall be equally void. (a) Or if administration be granted before the refusal of the executor, a sale by the administrator of the testator's effects shall be void, although the executor afterwards appear and re (t) Com. Dig. Admon. B. 3. Vide 2 Brownl. 119. (u) Thomas v. Butler, 1 Ventr. 219. Al. 56. (v) Offley v. Best. 1 Lev. 186. Dub. S. C. 1 Sid. 371. 1 Lev. 187. & vide supra. (w) Blackborough v. Davis, 1 P. Wms. 43. 2 Bl. Com. 112. 11 Vin. Abr. 92. 115. Com. Dig. Admon. B. 7, 8. (x) Com. Dig. Admon. B. 10. Abram v. Cunningham, 2 Lev. 182. 3 Bac. Abr. 50. nounce. (y) Or if the executor omit proving the will, whereby administration is granted to a debtor, the executor may afterwards prove it, and then sue the administrator for the debt, which is not extinguished by the administration. (*) So where an administratrix sued a debtor of the intestate, and, pending the suit, another by fraud procured a second administration to himself jointly with her, and after judgment released to the debtor, on which he brought an audita querela, and in the mean time the second administration was revoked, the release was held to be of no avail. (a) Thus in all other cases the acts of the administrator are of no effect, where the administration is unlawful ab initio. [129] If the grant were only voidable, then another distinction arises between the case of suit by citation, which is to countermand or revoke former letters of administration; and on appeal which is always to reverse a former sentence. (b) In case of an appeal, such intermediate acts of the administrator shall be ineffectual; because, as we have before seen, the appeal suspends the former sentence, and on its reversal it is as if it had never existed. (c) But if administration be only voidable, and the suit be by citation, all lawful acts by the first administrator shall be valid, as a bona fide sale, or a gift by him of the goods of the intestate; and such gift shall be available, even if it were with intent to defeat the second administrator, or were made, pendente lite, on the citation; although by the stat. 13 Eliz. c. 5, it be void as to a creditor. (d) So if administration be committed to a creditor, and afterwards repealed on citation at the suit of the next of kin, such creditor shall (y) 11 Vin. Abr. 95. Abram v. Cunningham, 2 Mod. 146. (2) Com. Dig. Admon. B. 10. Baxter and Bale's case, 1 Leon. 90. 11 Vin. Abr. 94. (a) Com. Dig. Admon. B. 10. Anon. Dyer, 339. 6 Co. 19. (b) 6 Co. 18 h. (c) Allen v. Dundas, 3 Term Rep. 129. 11 Vin. Abr. 117. (d) Com. Dig. Admon. B. 9. 1 Salk. 38. 6 Co. 18 b. 11 Vin. Abr. 95. retain against the rightful administrator; and his disposal of the goods pending the cause, and before sentence of repeal, shall be effectual. (e) If an admistrator assign a term, and on a subsequent citation to repeal the administration, it is confirmed, and, on appeal the sentence is reversed, the [130] assignment shall be good, for the repeal is merely of a sentence on citation, and therefore of the nature of a suit on such process; consequently the effect is the same as if the first administration had been avoided in such suit, and not as if an appeal had been brought in the first instance. (f) But where an administrator sold a term in trust for himself, although the administration were revoked on a suit by citation, and not on an appeal, the assignment was decreed to be set aside. (g) Whether the administration be void or voidable, a boná fide payment to the administrator of a debt due to the estate shall be a legal discharge to the debtor, by analogy to the case before stated in regard to such payment under probate of a forged will. () In a case as early as the time of Charles the Second, where the administrator of the lessee paid rent to the administrator of the lessor, and the latter administration was repealed and granted to A., and he brought an action as well for the rent paid to the former administrator of the lessor, as for rent which accrued due subsequently to the repeal, and obtained a verdict and judgment for the same, the defendant was relieved in equity in regard to the [131] rent he had paid, inasmuch as he had paid it to the visible administrator. (i) This, however, is to be understood only where the grant is revoked on citation; if it be reversed on appeal, the administrator's authority was suspended by the appeal, and of course such payments shall be void. (e) Blackborough v. Davis, 1 Salk. 38. 11 Vin. Abr. 117. Thomas v. Butler, 1 Ventr. 219. (f) Syms v. Syms, Raym. 224. Semine v. Semine, 2 Lev. 90. 11 Vin Abr. 118. (g) 11 Vin. Abr. 95. Jones v. Waller, 2 Ch. Ca. 129. (h) Allen v. Dundas, 3 Term Rep. 125 supra. 40. (i) 11 Vin. Abr. 117. Finch. Rep. But whether the administration be void or voidable, or be revoked on citation or appeal, if an action be brought by the administrator, and, while it is pending, administration is committed to another, the writ shall be abated. (k) Or if the administrator, before the repeal, obtain a judgment for a debt due to the intestate he is not entitled to take out execution, but the defendant may avoid the judgment by an audita querela. (1) So, if the defendant be actually in execution, the judgment shall be vacated in the same manner, and the execution set aside: (m) for in such cases the plaintiff had no authority but by virtue of a commission from the ordinary, and when that is determined, his authority is determined with it. But on affidavit to stay execution on a judgment recovered by an administrator, on [132] the ground that the letters of administration were repealed before the judgment entered, it was held that the matter did not come legally in question before the court, and that the party ought to bring an audita querela. (n) If administration be granted, and afterwards an executor appear, if the administrator have paid debts, legacies, or funeral expences, he shall be allowed to deduct such payments in the damages recovered against him in an action by the executor. (o) If administration have been granted to a creditor, he has a right to maintain it against the executor of a will afterwards produced, or the next of kin; it is not to be revoked on mere suggestion, and he is at liberty to shew cause why it should not be revoked. (p) But if administration be granted to a creditor, and he settles his own debt and goes away, it will be revoked, and a new administration granted. (2) (k) 11 Vin. Abr.118. Bro. Admon. pl. 3. (7) 11 Vin. Abr. 102, 117. Com. Dig. Admon. B. 10. Turner v. Davies, 2 Sand. 140. S. C. 1 Mod. 62. Lut. 343. (m) 11 Vin. Abr. 117. Ket v. Life, Yelv. 125. Bac. Abr. 51. 33. (q) In re Jenkins, 3 Phill. Rep. 133 BOOK II. OF THE RIGHTS AND INTERESTS OF EXECUTORS AND CHAP. I. OF THE GENERAL NATURE OF AN EXECUTOR'S OR ADMINISTRATOR'S INTEREST-DISTRIBUTION OF THE SUBJECT WITH REFERENCE TO THE DIFFERENT SPECIES OF THE DECEASED'S PROPERTY. An executor or administrator represents the person of the testator or intestate in respect to his personal estate, the whole of which, generally speaking, vests in the executor immediately on the testator's death: in the administrator, on the grant of letters of administration; (a) and such grant hath relation to the time of the intestate's decease. (b) The interest which such representative takes in the deceased's property is very different from that which belongs to him in regard to his own. Instead of being an absolute interest, it is only temporary and qualified. He is not entitled in his own right, but in auter droit, in right of the de[134] ceased. He is intrusted merely with the custody and distribution of the effects. (c) Therefore where by a marriage settlement stock, the property of the husband, was settled upon certain trusts, and then for such persons as he should by deed or will appoint, and in default of appointment for (a) Com. Dig. Admon. B. 10, 11. Co. Litt. 209. 3 Bac. Abr. 57. Off. Ex. Suppl. 47. (b) Com. Dig. Admon. B. 1. 2 Roll. Abr. 554. (c) Off. Ex. 85, 88. Plowd. 182. 525. 11 Vin. Abr. 54. 9 Co. 88 b. Rutland v. Rutland, 2 P. Wins. 212. |