Chap. XX. directed to "depute the next and most lawful friends of the dead person intestate to administer his goods," who were to have the powers of and to be accountable as executors.1 Administrators. Who are entitled to letters of ad These "lawful friends" were called "administrators." They were officers of the ordinary, and their power was derived solely from him by means of "letters of administration." The rules for determining the ordinary having jurisdiction to grant letters of administration were the same as in the case of probate. The jurisdiction of the ordinaries exercised through the proper Courts, and of all other Courts, was vested in the Court of Probate by the Probate Act, 1857.3 The jurisdiction of this Court is now exercised by the Probate, Divorce, and Admiralty Division of the High Court of Justice. Until letters of administration the personal estate vests in the judge of the Court in the same manner as it formerly vested in the ordinary.5 By 21 Hen. VIII. c. 5, s. 3, administration is to be granted "to the widow of the deceased or to the next of kin or to both as ministration. by the discretion of the ordinary shall be thought good"; and the ordinary may grant administration to one or more making request out of divers next of kin. Husband. Next of kin. A husband has the exclusive right of taking out administration to his wife. The right was confirmed by the Statute of Frauds, which provides that the Statute of Distributions shall not "extend to the estates of femes coverts that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates and enjoy the same as they might have done before the making of the said Act." The husband takes subject to satisfaction of any liabilities of the wife enforceable against the property. If the husband die without taking out administration, the next of kin of the wife may obtain a grant of letters of administration, but will hold the beneficial interest for the personal representative of the husband.10 The "next and most lawful friends," and "the next of kin,” 1 See as to these statutes, per Lush, L.J., Re Goodman, 17 Ch. D. 276. 2 Ante, p. 369. 20 & 21 Vict. c. 77. Ante, p. 370. 5 21 & 22 Vict. c. 95, s. 19. 6 Humphrey v. Bullen, 1 Atk. 459; Sands' Case, 3 Salk. 22; Johns v. Rowe, 7 29 Car. 2, c. 3, s. 25. 8 22 & 23 Car. 2, c. 10. 9 Smart v. Tranter, 43 Ch. D. 593, 598; Surman v. Wharton, [1891] 1 Q. B. 491. 10 Smart v. Tranter, sup. entitled to a grant of administration under the statutes are defined Chap. XX. by Coke1 to be the next of blood who are not attainted of treason felony or have any other lawful disability; but at the present day as a general rule the right to take out administration to the effects of an intestate follows the right to the property.2 creditor. If none of the next of kin will take out administration, a Grant to creditor may do so, because he cannot be paid his debt until there is a representative of the deceased.* Court. The Court has a wide discretion as to the grant of administra- Discretion of tion, and is not bound to make the grant to the person who formerly would have been entitled to such grant.5 ministration. nore ætate. absentiâ. In some cases, instead of administration being granted generally Limited adof the whole estate of the deceased, it is granted for a limited time, or for a limited purpose, or in respect of a part of the estate only. If the sole executor or next of kin is an infant, administration is granted to some other person to continue during the minority, and this is called administration durante minore ætate. If the sole Durante miexecutor or next of kin is out of the realm at the time of the decease, administration durante absentiâ may be granted to another Durante to continue until the return of the executor or next of kin. If litigation is pending as to the right to probate or administration, a grant of administration pendente lite may be granted to continue Pendente lite. until the litigation is determined. If there is no executor of a will, or none who will prove, the Court will grant administration cum testamento annexo, that is, with the will annexed. If an executor or administrator dies without having fully administered the estate, and, in the case of an executor, there is no executor of such executor, an administrator will be appointed de bonis non De bonis non. administratis, that is, to complete the administration of the estate." Cum testa mento annexo. A person entitled to take out administration cannot, as a general Administerrule, act before letters of administration are granted to him, for ing the estate. he derives his authority solely from the Court; but, as soon as administration is granted, the power of the administrator is equal Chap. XX. What are assets. Legal and equitable assets. Appointed property. Power of executor or "All those goods and chattels, actions and commodities, which were the deceased's in right of action or possession as his own, and so continued to the time of his death, and which after his death the executor or administrator doth get into his hands as duly belonging to him in the right of his executorship and administration, and all such things as do come to the executor and administrator in lieu or by reason of that, and nothing else, shall be said to be assets in the hands of the executor or administrator to make him chargeable to a creditor or legatee."1 The assets of a deceased person are either legal or equitable. This distinction "refers to the remedies of the creditor and not to the nature of the property; and whatever assets the Court of law would, in a creditor's action, charge the executor with, must be regarded as legal assets, that is to say, every item of property which the executor has a right to recover or which vests in him merely virtute offici." This distinction has now lost much of its importance, but is still operative in some cases, e.g., with respect to an executor's or administrator's right of retainer.3 5 It need hardly be said that property of which the deceased was only a trustee, or which he was bound to apply for a particular purpose, is not assets in the hands of his executor or administrator. In some cases property will be assets in the hands of the executor or administrator, though it never belonged to the testator, as where he renews or accepts a lease, or receives property pursuant to an agreement entered into by the deceased. Property which owing to its nature is incapable of being sold is not assets; as, for instance, a next presentation purchased by the deceased, if the church becomes void before he presents.7 6 Where a testator by his will exercises a general power of appointment over property, the property appointed becomes part of his assets.8 The executor or administrator has an absolute right to sell or administrator mortgage the personal assets of the testator or intestate, and they 1 Shep. Touch. 496. 2 Cook v. Gregson, 3 Drew. 549, per Kindersley, V.-C. See Williams on Executors, 1546 et seq. 3 Thompson v. Bennett, 6 Ch. D. 739. Post, p. 378. 4 Parker v. Baylis, 2 Bos. & P. 73; Deering v. Torrington, 1 Salk. 79. 5 Hassall v. Smithers, 12 Ves. 119. 6 James v. Dean, 11 Ves. 392; 8 R. R. 178; Randall v. Russell, 3 Mer. 190; 17 R. R. 56. 7 Per Ld. Tenterden, C.J., Rennell v. Lincoln, 7 B. & C. 195; 36 R. R. 139; Williams on Executors, p. 1537. 8 Thompson v. Towne, 2 Vern. 319. 9 Mead v. Orrery, 3 Atk. 239; Scott v. Tyler, 2 Dick. 725; M'Leod v. Drummond, 17 Ves. 154; 11 R. R. 41; Thorne v. Thorne, [1893] 3 Ch. 193; ante, p. 367. to sell or cannot be claimed by creditors or legatees as against the purchasers Chap. XX. or mortgagees. If it were otherwise no one would deal with a personal representative: he must sell in order to do his duty, and mortgage. no one would buy if he were liable to account.1 An executor may even dispose of a chattel specifically bequeathed, so long as he has not assented to the bequest.3 4 The executor or administrator has only to account for the assets Assets lost. that come to his hands, and, if they come into his possession but are afterwards lost, he cannot be charged unless there be some wilful default on his part. He is in the position of a gratuitous bailee; and he is not to be charged with the debts due to the deceased till he has received them. A“ derastarit," or waste, in an executor or administrator is Devastavit. where he misapplies the assets, as by paying legacies before debts, or a debt of lower degree before one of higher degree, or a debt which is unenforceable by reason of the Statute of Frauds. The executor is personally liable for any derastavit, but only as for a simple contract debt, which may be barred by the Statute of Limitations. If he has acted honestly and reasonably, he may now be relieved from personal liability by order of the Court.9 to be ad It is the duty of the executor or administrator to pay out of the Assets-how assets in the first place the reasonable expenses of the funeral.10 ministered. If he gives orders for the funeral, or adopts the acts of another who has given such orders, he becomes personally liable for them.11 Secondly, he may retain the costs of obtaining probate or letters of administration, and other costs of administering the estate.12 1 Whale v. Booth, 4 T. R. 625 (»); 2 R. R. 483 (n); Scott v. Tyler, 2 Dick. 725; Vane v. Rigden, 5 Ch. 668, per Ld. Hatherley, C. It need hardly be said that an executor cannot purchase from himself; Hall v. Hallet, 1 Cox, 134; 1 R. R. 3. 2 Ewer v. Corbet, 2 P. Wms. 149. 3 Ld. St. Leonards, 2 V. & P. 56. Read's Case, 5 Rep. 33 b; Jenkins v. Plombe, 6 Mod. 181. Job v. Job, 6 Ch. D. 562. Ante, p. 26. 6 See Wms. Exors. Pt. IV., Bk. 2, ch. 2, s. 2; Shep. Touch. 485. 7 Re Kownson, 29 Ch. D. 358. 8 Ante, p. 340. See Thorne v. Kerr, 2 K. & J. 54; Re Gale, 22 Ch. D. 820; Re Marsden, 26 Ch. D. 783; Re Hyatt, 9 Judicial Trustees Act, 1896 (59 & 60 10 Stacpoole v. Stacpoole, 4 Dow, 227; Anon., Comb. 342; Rex v. Wade, 5 Pri. 621; 19 R. R. 664; per Jessel M.R., Sharp v. Lush, 10 Ch. D. 472; Re M'Myn, 33 Ch. D. 575. 11 Brice v. Wilson, 8 A. & E. 349, n. (c); Lucy v. Walrond, 3 B. N. C. 841; 43 R. R. 815. 12 Loomes v. Stotherd, 1 Sim. & S. 461; 24 R. R. 209; Sanderson v. Stoddart, 32 Beav. 155; Tanner v. Dancey, 9 Beav. 339. See Brown v. Burdett, 40 Ch. D. 244. 9 Chap. XX. Thirdly, he must pay the debts of the deceased according to their priority; i.e., first, debts due to the Crown by record or specialty;1 secondly, certain debts to which priority is given by statute; thirdly, debts of record other than Crown debts; 3 fourthly, specialty and simple contract debts.+ Insolvent estate. Executor or administrator may prefer a creditor. Retainer. But, in the administration by the Court of the assets of a deceased person whose estate is insufficient for payment of his debts and liabilities, including the costs of administration," the same rules are to prevail as if it were being distributed in bankruptcy. In such a case priority in respect of rates and wages is given by the Preferential Payments in Bankruptcy Act, 1888.7 9 The executor or administrator may, among creditors of equal degree, pay one in preference to another; and may properly pay one creditor in full even after the commencement of an action by a creditor for administration of the estate, though not after a decree for administration or the appointment of a receiver.10 They may pay creditors of lower degree in priority to those of higher degree of which they have no notice."1 An executor or administrator, including a creditor to whom a grant of administration has been made,12 may "retain," or pay to himself, out of funds actually or constructively in his possession,13 a debt due to him from the deceased in preference to all other debts of equal degree, or to a debt of higher degree of which he has no notice; 15 and he may exercise this right even after a decree for administration.16 If the debt due to him exceeds the value of 14 1 2nd Instit. 32; Littleton v. Hibbins, Cro. Eliz. 793. See Re Bentinck, [1897] 1 Ch. 673; Re Churchill, 39 Ch. D. 174. Probate duty for which credit is given is a debt to the Crown and has priority; 55 Geo. 3, c. 184, s. 48. 2 See these collected in Williams on Executors, Pt. III., Bk. 2. 3 Ante, p. 155. Ante, p. 157. 5 Re Leng, [1895] 1 Ch. 652. 6 The Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10. See Re Leng, sup. ; Re Whitaker, [1901]1 Ch. 9. Ante, p. 339. 7 51 & 52 Vict. c. 62, s. 1 (6). Re Heywood, [1897] 2 Ch. 593. 8 Per Abbott, C.J., Lyttleton v. Cross, 3 B. & C. 322; 27 R. R. 370; Vane v. Rigden, 5 Ch. 669. 9 Re Radcliffe, 7 Ch. D. 733; Vibart v. Coles, 24 Q. B. D. 364. 10 Hanson v. Stubbs, 8 Ch. D. 154; Re Wells, 45 Ch. D. 575. 11 Re Fludyer, [1898] 2 Ch. 562, 565. 12 Davies v. Parry, [1899] 1 Ch. 602; Re Belham, [1901] 2 Ch. 52. 13 Pulman v. Meadows, [1901] 1 Ch. 233. 14 Wilson v. Coxiell, 23 Ch. D. 764; Calver v. Laxton, 31 Ch. D. 440; Re Illidge, 24 Ch. D. 659, per Chitty, J.; Re Giles, [1896] 1 Ch. 956; Re Beeman, ib. 48; Re Allen, [1896] 2 Ch. 345; Re Rounson, 29 Ch. D. 358; Re Bentinck, [1897] 1 Ch. 673. 15 Re Fludyer, [1898] 2 Ch. 562. 16 See Richmond v. White, 12 Ch. D. 361; Re Rhoades, [1899] 2 Q. B. 347. |