dispense with the citation or consent of the party having the prior claim (b).

Infancy.

SECTION II.

Who are incapable of being Administrators.

A widow, or next of kin, who would otherwise be entitled, may be incapable of the office of administrator on account of some legal disqualification.

It will be shown, in a subsequent part of this Treatise, to whom, upon such an event, the administration is to be committed (c).

The incapacities of an administrator not only extend to those persons who have already been enumerated as disqualified for the office of executor, as non compotes mentis, popish recusant convicts (d), persons denying the Christian religion to be true (e), but comprise attainder of treason or felony or other lawful disability (ƒ), outlawry (g), and bankruptcy (h). But it is no incapacity to be an administrator that the next of kin is an alien (i).

If the next of kin be a minor, administration must be granted to another person during his minority; which

(b) In the goods of Rogerson, 2 Curt. 656. In the goods of Southmead, 3 Curt. 28. In the goods of Widger, 3 Curt. 55. The Court granted administration to the sister of a bachelor intestate, upon a proxy of renunciation from the mother (a married woman) without her husband joining in it, she living separate from her husband, and all right to the estate and effects of the deceased having been conveyed to her under a deed of separation: In the goods of Hardinge, 2 Curt. 640.

(c) See post, Pt. 1. Bk. v. Ch. III.

(d) 3 Jac. I. c. 5, s. 22: but see ante, p. 207.

(e) 9 & 10 Wm. III. c. 32. Ante, p. 207.

b.:

(f) Hensloe's case, 9 Co. 39, For the statute binds the Ordinary to grant administration to the lawful friends of the deceased.

(g) 1 Roll. Abr. 908. Bac. Abr. Exors. (G.) Toller, 93.

(h) Hills v. Mills, 1 Salk. 36. Com. Dig. Admor. (B.) 6. Ante, P. 374.

(i) Com. Dig. Admor. (B.) 6. Upon this subject, see ante, p.

199.

species of administration will hereafter be considered separately (k). But on a late occasion, administration, limited to the receipts of dividends in the English funds, was granted to a minor residuary legatee, the wife of a minor, both subjects of and resident in Portugal, on a certificate being produced that by the law of Portugal she was

entitled (1).

Coverture is no incapacity for the office of administrator: Feme covert. Therefore, if a feme covert be next of kin to the intestate, administration shall be granted to her (m). But she cannot take administration without the consent of her husband (n), inasmuch, among other reasons, as he is required to enter into the administration bond, which she is incapable of doing. Yet if it can be shown that the husband is abroad, or otherwise incompetent, a stranger may join in the security in his stead (0). In either case the administration is committed to her alone, and not to her jointly with her husband: otherwise, if he should survive her, he would be administrator, contrary to the meaning of the Act (p).

In Da Rosa v. De Pinna (q), a married woman prayed administration to her mother and sister, and was opposed by another sister: The judge of the Prerogative decreed administration to pass under seal to the married woman, who was sworn administratrix: The sister appealed, and in the Delegates the married woman gave a proxy to renounce her right to the administration, in order to prejudice her

(k) Post, Pt. 1. Bk. v. Ch. III. § III.

() In the goods of the Countess of Da Cunha, 1 Hagg. 237.

(m) Com. Dig. Admor. (B.) 6. Ibid. Admor. (D.)

(n) See Bubbers v. Harby, 3 Curt. 50, in which case a motion for administration with the Will annexed to the attorney of a residuary legatee, a married woman, upon her proxy alone, her husband refusing to join, was rejected.

(0) Toller, 91.

(p) Anon. Style, 74. S. C. semble, by the name of Wood v. Brown, Aleyn. 36. Toller, 91. If it were committed to them jointly during the coverture it might perhaps be good, because, if committed to the wife alone, the husband for such period may act in the administration with or without her assent: Aleyn, 36.

(q) 2 Cas. temp. Lee, 390.

husband; the husband intervened, and prayed that her proxy might be rejected: The Court was of opinion, that on decreeing the administration to the wife, an interest was vested in her husband which she could not by any subsequent act deprive him of, and therefore rejected her proxy of renunciation.

By what instrument or form.

Form.

SECTION III.

Of the mode of granting Letters of Administration, and the
Form thereof.

Administration is generally granted by writing under seal. It may also be committed by entry in the registry, without letters sub sigillo: But it cannot be granted by parol (r).

In letters of administration, the style of jurisdiction, as well as the name of the Ordinary, should be inserted (s). The following is the usual form of the grant to a next of kin in the Prerogative Court of Canterbury.

"Charles, by Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, to our wellbeloved in Christ, A.B., the lawful [nephew] and one of the next of kin of C. D., late of in the county of

deceased, greeting: Whereas the said C. D. (as is alleged) lately died intestate, having, whilst living, and at the time of his death, goods, chattels, or credits, in divers dioceses or jurisdictions; by reason whereof the sole ordering and granting administration of all and singular the said goods, chattels, and credits, and also the auditing, allowing, and final discharging the accompt thereof, are well known to appertain only and wholly to us and not to any inferior Judge: We being desirous that the said goods, chattels, and credits, may be well and faithfully administered, applied, and disposed of according to law, do therefore, by these presents grant full power and authority to you, in whose fidelity we

confide, to administer and faithfully dispose of the said goods,
chattels, and credits, and to ask, demand, recover, and re-
ceive whatever debts and credits, which, whilst living, and at
the time of his death, did any way belong to his estate, and
to pay whatever debts the said deceased, at the time of his
death, did owe, so far as such goods, chattels, and credits,
will thereto extend, and the law requires: You having been
already sworn, well and faithfully to administer the same,
and to make a true and perfect inventory of all and singular
the said goods, chattels, and credits, and to exhibit the same
into the registry of our Prerogative Court of Canterbury, on
or before the
day of
next ensuing and also

to render a just and true account thereof on or before the
which shall be in the year of our Lord

day of

And we do by these

one thousand eight hundred and
presents ordain, depute, and constitute you administrator of
all and singular the goods, chattels, and credits, of the said
deceased. Given at London, the

day of

year of our Lord one thousand eight hundred and

year of our translation.

in the

and

in the

By a modern regulation of the Prerogative Court of Time of granting letters. Canterbury, where letters of administration are applied for after the expiration of five years from the death of the intestate, the delay must be satisfactorily accounted for by an affidavit made by the administrator or other competent person (u). In the case of a recent death, if a party swears that he is one of the next of kin, the grant will issue without inquiry as to the knowledge of the other next of kin (x).

(t) The time of the death is required to form part of the oath, and to be inserted in the margin of the grant, by a late rule of the Prerogative Court of Canterbury. See the reason, ante, p. 338, note (k).

(u) Gwynne on Probate and Le-
gacy Duties, p. 10. See In the
goods of Darling, 3 Hagg. 561.
Ante, p. 338, note (k).
(x) 3 Hagg. 565.

Retracting renunciation.

Administrator's oath.

The practice is, that letters of administration shall not issue until after the expiration of fourteen days from the death of the intestate: unless for special cause (as that the goods would otherwise perish, or the like,) the Judge shall think fit to decree them sooner (y).

Where a party entitled to the grant of administration has renounced, such renunciation may be retracted before the administration has passed the seal (2).

The oath to be made by the administrator, on his taking out letters of administration, is usually in this form :—

"You shall swear, that you believe A. B., deceased,
died (a) without a Will (b), and that you will well and truly
administer all and every the goods of the said deceased, and
pay his debts so far as his goods will extend; and that you
will exhibit a true, full, and perfect inventory of the said
goods of the deceased, and render a true account of your
administration into the
Court of C., when you shall
So help you God" (c).

be thereunto lawfully required.
Besides this oath, it is enacted by stat. 55 Geo. III.
c. 184, s. 38 (the Stamp Act), that no ecclesiastical person
shall grant letters of administration, without first receiving
from the person applying for them, or some other competent
person, an affidavit whether the estate and effects of the
deceased, in respect of which administration is to be
granted, are under the value of a certain sum to be therein
specified (d).

(y) 1 Ought. 323, tit. 219, s. 1, n. (a).

(z) West v. Wilby, 3 Phillim. 379. See M'Donnell v. Prendergrast, 3 Hagg. 212. Ante, p. 248.

(a) By order of the Prerogative Court of Canterbury the time of the death is required to form part of the oath and to be inserted in the margin. And certain forms are prescribed for commissions for swearing administrators residing in the country and for the oath to be administered. See 3 Burn's

Ecc. L. 235, Phillimore's edition.

(b) A party having died insane, leaving a Will, which upon the face of it exhibited marks of insanity, the Court granted administration of the effects of the deceased as dead intestate, but directed the Will to be deposited in the Registry: In the goods of Bourget, 1 Curt. 591. See also Palmer v. Dent, 2 Robert. 284. Ante, p. 299.

(c) 1 Ought. 323, 324, tit. 219, s. 1. 4 Burn. E. L. 286, 8th edit. (d) See post, Pt. 1. Bk. VII.