The Orphans Legacy, Part 2 · Chapter 30
CHAP. XXX. Of Adminiſtrators in a notion diſtinct from Executors.
1. Adminiſtrator, what he is in the Law.
2. The Origination of an Adminiſtrator by and to whom Letters of Adminiſtration are to be granted.
3. What proviſion of Law in Caſe of an Adminiſtrator after an Executors death.
4. What the Law is, in caſe a Stranger doth Adminiſter, or the Ordinary grant his Letters ad Colligendum.
5. In what manner Adminiſtration is to be granted.
6. Of Adminiſtration durante minoritate.
7. In what Caſes Letters of Adminiſtration may be granted.
8. Law-Caſes touching this Subject.
1. AN Adminiſtrator is in the Law called Executor Dativus, becauſe as ſuch he is conſtituted or appointed by the Ordinary. As by the Statutes, ſo by the Common Law of this Realm an Adminiſtrator is properly taken for him that Legally hath, or in his own wrong illegally, the Goods and Chattels of a perſon dying Inteſtate, or hath Adminiſtred to the ſame; but more properly, that hath them committed to his truſt and charge by the Ordinary, and is accountable for the ſame whenſoever it ſhall pleaſe the Ordinary to call him thereunto; and this is done for default of an Executor.
2. By the Conſtitution of Leo the Emperour it was Enacted, That if a man dying, bequeath any thing for the Redemption of Captives, &c. and appoint one to execute the Will in that point, the party ſo appointed ſhould ſee it performed; but if he appointed none to do it, then was the Biſhop of the City Authorized to demand the Legacy, and therewith to perform the Will of the deceaſed without delay. al. nulli Licere. 28. Cod. Epiſc. & Cleric.From whence it is probably conjectured that the Adminiſtration of the Goods of perſons dying inteſtate, by Biſhops and others of Eccleſiaſtical Authority and Juriſdiction under them, was Originally derived. For it was Anciently Ordained, bWeſtm. 2. an. 13 Ed. 1. c. 19.That the Goods of thoſe dying Inteſtate ſhould be committed to the diſpoſition of the Ordinary, who ſhould be obliged to anſwer the deceaſeds debts, ſo far forth as his Goods would extend unto, even as Executors themſelves in the like caſe. And after this by another Statute, c13 Ed. 3. c. 11.power was given to the Ordinary to appoint Adminiſtrators, and to Authorize them as fully as Executors, to gather up and diſpoſe the Goods of the Inteſtate: Alway provided, that they ſhould be accountable for the ſame as Executors; by which Statute it is ordained, That the Ordinaries ſhall depute the next and moſt lawful Friends of the Inteſtate to be his Adminiſtrators; who then in Law have nigh in all things equivalent power with Executors. d38 Ed. 3. fol. 26. & 41 E. 3. fol. 2. & 37 H. 6. f. 15. Dyer f. 236. Co. lib. 5. f. 9. & lib. 6. f. 18. & lib. 9. f. 38. & Co. Inſt. lib. 2. cap. 11. Sect. 200. f. 133. b. & Regiſt. f. 141. V. N. B. f. 61. Fitz. N. B. f. 120. D. & Raſt. pla. f. 320.Inſomuch that whatever hath been or may be ſpoken of the one, may nigh in all points be properly applyed and aptly accommodated to the other. And laſtly, in confirmation of the Premiſes it is enacted by a latter Statute, e21 H. 8. 5.That in caſe any perſon die Inteſtate, or having made a Will, the Executor therein named refuſe to Prove the ſame, the Ordinary, or others Authorized for the Probate of Teſtaments may grant Adminiſtration to the deceaſeds Widow, or to the next of his Kin, or to both at the Ordinaries diſcretion, taking Surety for them for the due Adminiſtration. fBroo. Adminiſt. 47. & Co. lib. 3. fol. 40. & lib. 9. fol. 39. It was reſolved by all the Juſtices, againſt the Statute of 5 E. 6. That the Father and the Mother are the next to whom Adminiſtration ſhall be granted, of the goods of the Son or Daughter, who dye Inteſtate—34 El. Co. 3. part. in Ratcliffs Caſe.And by the ſame Statute it is further Enacted, That if divers perſons claim the Adminiſtration as next of Kin, which be in equal degree of kindred to the deceaſed, and where any one perſon only deſireth the Adminiſtration as next of Kin, where indeed divers perſons be in equality of kindred, then in every ſuch caſe the Ordinary is at his Election and Liberty, to accept any one or more making requeſt, where divers do require the Adminiſtration.
3. An Executor after Probate made dying Inteſtate, the Adminiſtration of the firſt Teſtators Goods not Adminiſtred may be granted to whom the Ordinary ſhall ſee cauſe in Law; and he may grant the Adminiſtration of the Goods both of the firſt and ſecond deceaſed de bonis non Adminiſtratis to one and the ſame perſon; in which caſe the Adminiſtrator ought to ſee, that his Adminiſtration have ſpecial words for granting the Adminiſtration of the firſt Teſtators Goods not Adminiſtred. gBroo. Exec. 117. 26 H. 8. 7. Coke 1. 69. Dyer 372. Terms of Law. tit. Admin.For though ſome are of Opinion, that by the general Adminiſtration the Adminiſtrator ſhall have not only the Executors but the Teſtators Goods alſo, yet this is otherwiſe held for Law at this day. hFitz. Adminiſt. 9.And an Action ſhall lie for or againſt ſuch an Adminiſtrator as for or againſt an Executor, and he ſhall be charged to the value of the Goods of the deceaſed, and no further, if it happen not otherwiſe by his own falſe Plea, or for that he hath waſted the deceaſeds Goods: But if the Adminiſtrator die, his Executors do not ſucceed him in that Adminiſtration, but the Ordinary is to commit a new Adminiſtration. The Law is the ſame when an Executor dyeth before he hath Proved the Will, or Adminiſtred any of the Goods; in which Caſe a new Adminiſtration is to be granted to the Widow or next of Kin of the firſt Teſtator with the Will annexed, unleſs he had alſo bequeathed the reſidue of his Goods unto the ſaid Executor; for in that caſe the Adminiſtration of his Goods belongs unto the Widow or next of Kin of the Executor, and not of the Teſtator. Or if an Executor be made Univerſal Legatary, and die before he hath Proved the Will of the Teſtator, in this caſe likewiſe the Adminiſtration of the Teſtators Goods doth belong to the next of Kin of ſuch univerſal Legatary, and not of the Teſtator.iDyer 371.
4. If a Stranger that is neither Adminiſtrator nor Executor, take to himſelf the deceaſeds Goods, and Adminiſter of his own wrong, he ſhall be charged and ſued as an Executor and not as an Adminiſtrator in any Action that is brought againſt him by any Creditor: But if the Ordinary make a Letter Ad Colligendum bona Defuncti, he that hath ſuch a Letter is no Adminiſtrator, but the Action lieth againſt the Ordinary himſelf as well as if he took the Goods into his own hands, or by the hands of any of his Servants by any other Command or Order. kTerms of Law, verb. Adminiſtrator.And Note, that if an Adminiſtrator doth alienate or convert to his own uſe all the Goods which did belong to the Inteſtate, in this caſe an Action doth lye againſt the Executor of that Adminiſtrator, and is lyable to be charged for the debts due by the Inteſtate, which is otherwiſe of an Executors Executor.
5. An Adminiſtration muſt paſs under Seal in Writing, not by word of mouth; for the Ordinary cannot commit Adminiſtration by word of mouth; otherwiſe it is if it be entered into his Regiſtry, though Letters of Adminiſtration be not formerly drawn. l21 H. 6. 23.Yet it may be granted as well upon condition as abſolutely, and as well for part as for the whole Eſtate; ſo that a man dying poſſeſſed of Goods in Two Provinces, making his Will of the Goods only in one of them, and dying Inteſtate as to the Goods in the other Province, Adminiſtration may be granted as to the Goods of that Province whereof he died Inteſtate; likewiſe Adminiſtration may be granted only for or during ſome certain limited time. mDyer 294. Fitzh. Adminiſt. 5. 34 H. 6. 14. & Plowd. 279.Alſo an Executorſhip limited to a certain time, the Ordinary ought to grant Adminiſtration after the expiration thereof; or if a man appoint an Executorſhip not to begin till ſome certain time after the Teſtators death, Adminiſtration is to be granted till that time doth Commence. nBrownl. Rep. 1 part. 5. 2 part. 119.In like manner where an Executor is made conditionally, and the condition yet depending, it is for prevention of prejudice to Creditors and Legataries, Provided, that the Ordinary may commit Adminiſtration to the ſaid conditional Executor only during the dependency of the condition; ol. ſi quis inſtituat. §. 1 & 2. ff. de haer. inſtit.but upon infringement or defect of the condition Adminiſtration is to be granted to the next of Kin.pl. 2. §. ſi ſub Condit. de bon. poſſ.
6. There is alſo an Adminiſtrator durante minori aetate, which is a ſpecial kind of Adminiſtration, and is only in caſe where an Infant under the Age of Seventeen years is made Executor; in which caſe the Adminiſtration is committed to one or more of the next of Kin of the Infant during his Minority, that is, till he be capable of the Executorſhip, which is at the Age of Seventeen years; the power of ſuch an Adminiſtrator is equivalent to the power of other Adminiſtrators; qCoke 5. 29. 6. 27. 9. 27.and therefore if it be granted during the Minority of ſeveral joynt-Executors, all under the Age of Seventeen years, and one of them dye, or attain to the Age of Seventeen years, then is the Adminiſtration determined; ſo alſo is it if a Feme-Minor Executrix take a Husband of that Age. rBrownl. Rep. part 1. 31. 46, 47. 80. 101. & part 2. 83. 148.And if ſuch an Adminiſtrator durante minori aetate get a Judgement, and before Execution the Infant-Executor doth come of Age, the Executor himſelf may have Execution of this Judgement.
7. To the ſeveral reaſons and cauſes for granting of Letters of Adminiſtration mentioned in the Premiſes may be added, That if a Teſtament be not made with all Freedome, as it ought to be, viz. without fear of Loſs or hope of Gain, without Threats, Flattery, Fraud, or Colluſion; without Errour, Uncertainty, Fallacy, Imperfection, Cancelling, or Revocation; or if the Teſtator be a perſon incapable of making a Teſtament; or if his Will, contrary to the nature of Wills, depend upon another mans Will; or otherwiſe the party dying Inteſtate, as aforeſaid, or Teſtate and the Executor refuſe to Prove the Will; In all theſe caſes the Adminiſtration is to be committed to the Widow or next of Kin to the Inteſtate, s21 H. 8. 5. 31▪ Ed. 3. cap. 11.ſometimes with the Will annexed if there be any, and in ſome caſes not: But the Adminiſtration is not to be committed according to the Statutes to the Widow or next of Kin, in caſe of ſuſpending the Probate by reaſon of the yet dependency of ſome unaccompliſhed condition in the Will, but to him that is made Executor, and that only for and during ſo long time as the condition dependeth; for in this caſe the party is not Inteſtate ſo long as the condition is accompliſhable or performable. Again, if the Mind, Will, and Intention of an inteſtate touching the diſpoſition of his Goods and Chattels be declared, though for want of making an Executor he dye Inteſtate, tJul. Cla. §. Teſta. 9. 5. nu. 2.ſo as Adminiſtration is to be committed; yet for that here is not only an inchoation but in part a progreſſion of a Will, it is to be annexed to the Letters of Adminiſtration, and to be obſerved and performed by the Adminiſtrator.
In Detinue brought by an Adminiſtrator of a Chain, of which the Intèſtate died poſſeſſed, and which after came to the Defendants hands; the caſe was upon a ſpecial Verdict, That the Adminiſtration was committed to the Defendant in London by the Biſhop of Cork being in London; but they did not find that the Defendant was poſſeſſed of the Chain in London; and in this Caſe theſe Points were reſolved: 1. That a Biſhop of Ireland being in England might commit Adminiſtration of things in Ireland, becauſe it is but a Power and Authority which follows his perſon, whereſoever it is. 2. That an Adminiſtrator made by a Biſhop of Ireland, could not bring an Action here as Adminiſtrator, becauſe of the Letters of Adminiſtration granted in Ireland there could be no Tryal here. 3. That an Adminiſtrator might declare of his own poſſeſſion, although he was never poſſeſſed, if the Inteſtate at the time of his death was poſſeſſed, for that the Law caſts a poſſeſſion upon him. 4. That upon a general Iſſue pleaded, the Jury might find a forreign matter, as a thing done out of England. 5. It was reſolved, That in the Principal Caſe, the ſubſtance of it was the Poſſeſſion, and not the Adminiſtration. It was adjudged for the Plaintiff. Paſch. 27 Eliz. in C. B. Carter and Crofts caſe. Godbolt 33. Vid. Dyer 304.
An Adminiſtrator brought an Action of Debt for Rent, which was found for the Plaintiff, and Judgement given. Exception was taken that the Plaintiff had not ſhewed by whom the Letters of Adminiſtration were granted to him: But the Opinion of the Court was, That it was too late to ſhew that after Verdict; for that the Jury have found, that the Adminiſtration was duly granted. And it was ſaid in the Court, That in a Declaration it is not neceſſary to ſhew by whom the Letters of Adminiſtration are granted; or to ſay that they were granted by him cui pertinuit, or per loci illius Ordinarium. uTrin. 1651. in B. R. Marſhal and Ledſhams Caſe. Styles 282. vid. 1 Jac. in Excheq. Chamb. Wade and Atkinſons Caſe adjudged contrary. Cro. 2 part. 10. Hugh. Abridg. tit. Adminiſt.Yet Note, that it was ſaid in another caſe, That if an Adminiſtrator bring an Action againſt an Adminiſtrator, it is not neceſſary for the Plaintiff to ſhew by whom the Letters were granted to the Defendant, but he muſt ſhew by whom the Letters of Adminiſtration were granted to himſelf to entitle him to the Action; for if it appear not to the Court, that he is Adminiſtrator, he cannot Sue.wMich. 1655. in B. R. Ingram and Fawſets caſe. Styles 463.
If an Infant be made Executor, Adminiſtration, during the Minority of the Infant, may be committed to the Mother; and the ſame ſhall ceaſe and be void, when the Infant is of the Age of Fourteen years: But ſuch Adminiſtrator cannot ſell the Goods of the Teſtator, unleſs it be for neceſſity of payment of debts, becauſe he hath the Office of Adminiſtrator, only pro bono & commodo of the Infant, and not to its prejudice.xCoo. 5. part. Princes Caſe, 59.
Note, it was reſolved per Curiam, That an Adminiſtration durante minori aetate of an Executrix, was not within the Statute of 21 H. 8. of neceſſity to be granted to the Widow of the Teſtator, becauſe there is an Executor all the while; otherwiſe, if the Executor were made from a time to come.yMich. 15 Ja. C. B. Briers and Goddards Caſe. Hob. 250.
An Infant was made Executor, and Adminiſtration was granted to another durante minori aetate of the Infant, who brought Action of Debt for money due to the deceaſed, and had the Defendant in Execution, and then the Executor came of full Age. It was moved that the Defendant might be diſcharged out of Execution, becauſe the Authority of the Adminiſtrator was determined, and he cannot acknowledge ſatisfaction: And it was ſaid; That he was rather a Bailiff to the Infant, than an Adminiſtrator: But the Judgement of the Court was, That though the Authority of the Adminiſtrator was determined, yet the Recovery and Judgement did remain.zMich. 29 El. in C. B. Gol…b. 104.
In an Account brought by an Adminiſtrator durante minori aetate againſt the Defendant as Bailiff of ſuch a Mannor; it was found for the Plaintiff: It was moved in ſtay of Judgement, That Mich. 7 Car. B. R. Wells and Somes Caſe. Cro. 1 part. 174.it is not ſhewed, that the Executor the Infant was within the Age of Seventeen years, and it might be he was above the Age of Seventeen years, and yet under Age: But the Opinion of the Court Vid. Mich. 9 Car. Dorcheſter and Wells Caſe. Cro. Rep. par. 1.was, That it ſhall not be ſo intended unleſs it be ſhewed, that he was above Seventeen years; and eſpecially when the Defendant had admitted him to bring the Action, and had pleaded to Iſſue.
Between P. and S. the Caſe was; An Infant was made Executor, to whom certain Leaſes among other things were deviſed, and Mich. 41, 42 Eliz. Prince and Simpſons Caſe. Anderſ. Rep. Caſ. 58.Adminiſtration during his Minority committed to one, who ſold and alienated the Leaſes. It was agreed by the Juſtices, That the Adminiſtrator could not ſell the Leaſes, unleſs there were good and reaſonable cauſe moving thereunto; as in caſe there were no other Goods ſave the Leaſes wherewith to pay the Teſtators debts, which ought of neceſſity to be paid; the Leaſes may to that end and purpoſe be ſold, otherwiſe not; but Beaſts and other things which cannot long be kept or preſerved, eſpecially fat Beaſts, Corn, or the like may be ſold. And of this Opinion was the Chief Juſtice of the Kings Bench, and the Chief Baron.
Debt as Adminiſtrator of B. upon an Obligation, the Caſe was, That the Inteſtate died in Lancaſhire, but the Obligation was at Hill. 38. Eliz. C. B. B…ron verſ. Byron. Cro. Rep. par. 3.London at the time of his death; and the Biſhop of Cheſter, in whoſe Dioceſs he died, committed Adminiſtration to J. S. who releaſed to the Defendant; and the Arch-Biſhop of Canterbury committed the Adminiſtration to the Plaintiff; and this Releaſe was pleaded in Bar, and it was thereupon demurr'd. Warberton, Every. Debt follows the perſon of the Debtee, and Cheſter is within the Province of York, where the Arch-Biſhop of Canterbury hath nothing to do. Anderſon, Where one dies who hath Goods in divers Dioceſſes in both Provinces, there Canterbury ſhall have the Prerogative; otherwiſe there would be Two Adminiſtrations committed, which is Res inaudita. The Debt is where the Bond is, being upon a Specialty; but debt upon a Contract follows the perſon of the debtor; and this difference hath been oftentimes agreed, vid. Dyer 305. And if the Arch-Biſhop of Canterbury hath not any Prerogative in York, but that ſeveral Adminiſtrations ought to be committed, yet at leaſtwiſe Adminiſtration for this Bond ought to be committed to the Arch-Biſhop of Canterbury; wherefore the Releaſe is not any Bar.
Debt againſt the Defendant, as Adminiſtrator of F. he pleads a Hill. 40 Eliz. C. B. Smalpeace verſ. Smalpeace. Cro. Rep. par. 3.Recovery againſt him as Executor, and beſides to ſatisfie that he hath not any Aſſets. And it was thereupon demurred and adjudged to be a good Plea, and he ſhall not be twice charged: wherefore it was adjudged for the Defendant.
Debt againſt the Defendant as Adminiſtratrix of T. H. her Husband, upon a Leaſe to the ſaid T. by Indenture for years, and Paſch. 41▪ Eliz. B. R. Body verſ. Hargrave. Cro. Rep. par. 3.how the Defendant is Adminiſtratrix to him: And for Rent arrear after his death the Action was brought in the Debet and Detinet; upon Not Guilty pleaded it was found for the Plaintiff: and now moved in Arreſt of Judgement, That the Declaration was not good; for that &c. And at another day it was moved, That this Declaration ought to have been in the Detinet, and not in the Debet and Detinet, becauſe ſhe hath the Term as Adminiſtratrix, and is not charged by her own Contract, but by an Act of the Teſtator, and to that purpoſe was cited 19 H. 8. 8. 10 H. 5. 7. And a Preſident was ſhewn in C. B. between Barker and Kelſay, where the Action was brought in the Detinet only. And Godfrey affirmed, that in Fenns Caſe in this Court it was Ruled, That the Action ought to be brought in the Detinet. Gaudy, The Action is well brought in the Debet: For this Rent, though Arrear after the death of the Inteſtate, begun firſt in the Adminiſtratrix, and therefore the Action well lies againſt her in the Debet: For the reaſon why the Action againſt an Executor ſhall be in the Detinet, is for that the debt grew due by the Teſtator; and therefore it cannot be ſaid that Executor Debet. But in an Action againſt the Heir it ſhall be in the Debet and Detinet, becauſe he is bound by ſpecial words in the Obligation; and here the debt which in the time of the Adminiſtratrix occurr'd, is her debt; and in Dyer 6 Ed. 6. 81. the Action is brought in the Debet and Detinet for Rent Arrear in the time of the Executor, and admitted to be good. Popham accord. For the being charged with the Rent in her time, it accrews by reaſon of the Profits of the Land, which ſhe her ſelf received, and therefore ſhe is charged, having quid pro quo. For if an Executor hath a Leaſe for years of Land of the value of Twenty pound per Ann. rendring Ten pound per Ann. Rent, it is Aſſets in his hands only for Ten pound over and above the Rent. Fenner agreed to this Opinion, and to that purpoſe cited 10 H. 6. 11. That the Husband ſhall be charged after the death of the Feme for Rent Arrear in his own time, becauſe he received the Profits of the Land: So as the Rent grew due in reſpect of the occupation and taking of the Profits. And therefore ſhe is chargeable, and not meerly as Executrix. Clinch agreed with them; wherefore it was then adjudged for the Plaintiff. Note, That afterwards this Judgement was reverſed in the Exchequer Chamber for the point in Law: For all the Judges of the Common Bench, and Barons of the Exchequer held, That ſhe ought to be charged in the Detinet, becauſe ſhe is charged only by the Contract of the Inteſtate. 5 Co. 31.
The Caſe was; One died Inteſtate in the County of York, and a Stranger prayed Letters of Adminiſtration to be granted to him, Mich. 10 Jac. B. R. Stephenſon verſ. Wood. Bolſt. par. 2. 3, & 4.which was Repealed by the Delegates at York; there was an Appeal to the Court of Delegates in the Chancery, who did Repeal the former Sentence at York; and adjudged, that the Party made no Will, and granted Letters of Adminiſtration to him who Appealed to them: The Arch-Biſhop of Canterbury granted Adminiſtration to a ſecond perſon; and the Arch-Biſhop of York to a Third perſon, who made a Releaſe unto the Debtor of the Inteſtate; upon which Releaſe, debt was brought by the firſt Adminiſtrator againſt the Defendant, who pleaded the Releaſe made to him: And whether this grant of Letters of Adminiſtration by the Judges Delegates were good, or not, was the Queſtion. But the better Opinion of the Court was, That the Letters of Adminiſtration, which were granted by the Judges Delegates, was not good; but there being Bona Notabilia, the Adminiſtration was to be granted by the Arch-Biſhop: And it was ſaid, That if the Party who died Inteſtate, had Goods in ſeveral Provinces, both the Arch-Biſhops there having a Peculiar, might grant Letters of Adminiſtration; and although the King be Supream Ordinary, and by Delegates may do many Acts; yet the Court of Delegates cannot do this, nor have they power to Prove any Wills; for the power of the Judges Delegates, is, Poteſtas Delegata corrigere non exequi: And the Court ſaid, That it was adjudged in one Brakenburies Caſe, That the Judges Delegates had not power to grant any Letters of Adminiſtration.
An Exception was taken to a Declaration, becauſe the Plaintiff conveyed his Intereſt to an Adminiſtrator, to whom the Arch-Biſhop Trin. 24 Eliz. B. R. Dorrel againſt Collins. Cro. Rep. par. 3.of Canterbury did grant the Adminiſtration of all the Goods of the Leſſee, and did not ſhew how the Arch-Biſhop granted it, either as Ordinary, or by his Prerogative: And this was held by all the Court a material Exception: But it was afterwards alledged, That all the Preſidents in this Court (viz. B. R.) and in C. B. were ſo in general, without ſpecial ſhewing how; and for that they would not change the Preſidents, they diſallowed the Exception. And in this Caſe it was held, That if an Adminiſtrator doth grant Omnia bona & catalla ſua, a Term which he hath as Adminiſtrator doth not paſs, for it is not ſuum, but he hath it in right of the Inteſtate: But if one hath a Leaſe as Executor or Adminiſtrator of the Mannor of D. and he granteth all his right and intereſt in the Mannor, the Term which he hath as Executor &c. doth paſs; for he had no other Right in it, and his intent is to paſs it, but by general words it ſhall not paſs.
Debt againſt the Defendant as Adminiſtratrix, ſhe pleaded Plenè Mich. 28, 29 Eliz. Stamp verſ. Hutchins. Cropar. 3.Adminiſtravit; the Jury found, That the Inteſtate was indebted to divers by Obligations, and that after his death the Defendant had taken in the Obligations, and had obliged her ſelf to pay the greater part of the ſumms contained in the Obligations, at certain dayes to come, and for the reſidue had promiſed to the parties, That in conſideration of delivery in of the ſaid Obligations, that ſhe would pay &c. And by the Opinion of Anderſon, Windham, and Periam, it was held clearly a good Adminiſtration, ſo that the property of the Goods of the Inteſtate to that value were altered and changed in the Defendant.
Action Sur Trover: And Declares as Adminiſtrator of J. S. Mich. 29, 30 Eliz. La…y verſ. Smith. Cro. par. 3.and that Adminiſtration was committed to him by A. B. Official to the Biſhop of Peterborrough, and ſheweth not that he was Ordinary of the Place, or that the granting of Adminiſtration did belong to him; and this matter after Verdict was alledged in Arreſt of Judgement; but becauſe divers Preſidents had been ſo, and that ſuch Declarations had been allowed, the Court did give Judgement for the Plaintiff.
Debt as Adminiſtrator to one Philips, and Declares, That Adminiſtration of the Goods of Philips was committed to him per Mich. 36, 37 Eliz. Morgan verſ. Williams. Cro. par. 3.Adrian Vane Sacrae Theologiae Doctorem, ſuch a day apud Monmouth, and the Plaintiff recovered in the Common Bench by default; and Writ of Errour was thereon brought, and the Errour Aſſign'd, becauſe it is not ſhewn that Vane was Ordinary of Monmouth, nor that the committing of Adminiſtration appertained to him; and in regard it was in a Declaration which ought to be certain, and he is not a Biſhop, nor any perſon who may be intended to be the Ordinary, the Judgement was therefore reverſed.
It was moved by Coke the Queens Atturney, That the committing Hill. 37 Eliz. Cam. Scac. Bingham verſ. Smeathwick. Cro. par. 3.of Adminiſtration being by the Arch-Biſhop, although he had not Goods in divers Dioceſſes, becauſe it is in his Province wherein he hath Juriſdiction, it is not void, but only voidable by Sentence; and it is not like to an Adminiſtration committed by another Biſhop of the Goods of a man who died in another Dioceſs, or who had Goods in divers Dioceſſes; and this difference hath been taken and agreed in the Queens Bench, &c. But the Juſtices ſaid, it was all one, and the Adminiſtration is void in both caſes, and not voidable only.
Debt upon an Obligation of One hundred pound, one of the Defendants was Out-lawed, the other pleaded, that he who was Mich. 43 Eliz. C. B. Godfrey verſ. Woodward. Cro. Rep. par. 3.Out-lawed, was made Executor, and ſolely Proved the Will, and Adminiſtred, and that the Defendant as Servant unto him took divers of the Teſtators Goods by his Delivery, and by his appointment had ſold them, Abſ que hoc that he Adminiſtred as Executor, or in any other manner, and it was thereupon demurr'd, and adjudged to be an ill Plea, becauſe he doth not ſay that he refuſed before the Ordinary, nor confeſſeth any Adminiſtration; for that which he confeſſeth is not any Adminiſtration, and ſo no anſwer to the Plaintiff: Wherefore it was adjudged for the Plaintiff.
Debt; The Plaintiff as Adminiſtrator of J. S. ſued upon an Obligation made by the Defendant, and had Judgement, afterwards Hill. 3 Jac. B. R. Barnehurſt and Sir Charles Yel. vertons Caſe. Yelv. Rep.the Adminiſtration is revoked; but notwithſtanding that, the Plaintiff proceeded, and got the Defendant in Execution. And upon a motion to the Court, it was agreed by the whole Court, That the Execution was void, and that the Defendant ought to be diſcharged, Quia Erronicè emanavit; for that the Letters of Adminiſtration being revoked, the Plaintiffs power is determined; therefore the ground of his ſute being overthrown, viz. his Commiſſion, he hath no Authority to proceed further, and the Execution iſſued without Warrant. The ſame Law (per Curiam) on a Judgement for an Adminiſtrator, the ſecond Adminiſtrator ſhall not have Execution thereon, for he is not privy to the Record. Quod nota.
Debt; The Caſe was: Rent was granted to Baron and Feme for their lives, the Rent was Arrear, the Baron dies, another Rent is Mich. 42, 43 Eliz. C. B. Temple verſ. Temple. Cro. Rep. par. 3.Arrear, the Feme dies Inteſtate, and her Adminiſtrator brings debt for the Arrerages due in the Life of the Baron, and after. All the Court reſolved that it well lay, becauſe the Arrerages ſurvived to the Feme, as well as the Rent it ſelf. But an Exception was taken to the Declaration; for that it is alledged, that Adminiſtration was committed by the Dean of Lichfield, and it ſhews not by what Authority he committed it, nor that he was Loci illius Ordinarius; and for this cauſe the Court held the Declaration to be ill, for the Court intends not his Authority, being ſpecial, without ſhewing it. But the pleading of Adminiſtration committed by a Biſhop is good enough, without ſaying that he was Loci ilius Ordinarius, for ſo it ſhall be intended, and ſo the Preſidents warrant it; but in a Bar of Replication it is vicious. vid. 35 H. 6. 46.
Debt brought againſt C. as Adminiſtrator, and Judgement thereupon; Mich. 17 Jac. B. R. Chiverton verſ. Trudgeon. Cro. Rep. par. 2. Pl. 20.and now moved in Arreſt thereof, That this Action was brought by an Adminiſtrator, who ſhews, That Adminiſtration was committed to him by the Arch-Deacon, but ſhews not what Authority the Arch-Deacon had to commit Adminiſtration; and in proof thereof 21 H. 6. 23. and 35 H. 6. 46. were cited. And the difference is where Adminiſtration is committed by the Biſhop or Metropolitan, and where by one who hath a peculiar Juriſdiction; for in the laſt caſe he ought to ſhew how he hath his power, Plowd. 297. And although it be after Verdict, yet it is not holpen by the Statute of 18 Eliz. cap. 14. being matter of ſubſtance and not of form, as it was adjudged in Cutts and Bennetts Caſe; but the Court held, that it was well enough; and they ſaid, That the Books are of Peculiars, for it cannot be intended, that they have any Authority unleſs it be ſhewn: But the Arch-Deacon is Oculus Epiſcopi: And de Jure Ordinario he is to commit Adminiſtration: And it was adjudged for the Plaintiff.
An Executor recovers Debt, and dies Inteſtate; the Ordinary Hill. 28 H. 8. Levet verſ. Lewknor. Moo. Rep. nu. 13.committs Adminiſtration de bonis non &c. The Adminiſtrator ſhall not have a Scire Facias on the Judgement, but a new Action of Debt as Adminiſtrator to the firſt Teſtator, who is now dead Inteſtate.
A man ſets a Leaſe for years, the Leſſee Covenants for him and his Aſſigns, that he will not Lop nor Top the Trees during the Mich. 5 Eliz. Moo. Rep. n. 136.Term: And after the Leſſee dies Inteſtate, and the Ordinary committed Adminiſtration to J. B. who lopp'd the Trees; whereupon the Opinion of the Court was, That it was a breach of the Covenant, for that an Adminiſtrator is an Aſſign as well as an Executor.
Adminiſtrator brought Debt, and declared that Adminiſtration Mich. 36 & 37 Eliz. Morgan verſ. Williams. Moo. Rep. n. 504.was committed to him by A. B. Sacrae Theologiae Profeſſorem, and ſaith not Loci ilius Ordinarium; for which cauſe upon Errour the Judgement was reverſed.
In this Caſe the Queſtion was, whether the Ordinary had power Hill. 13 Jac. Slawny verſ. Elbridge. Moo. Rep. nu. 1191.to take a Bond or Obligation of the Adminiſtrator to diſtribute, according to the Ordinaries diſcretion, the Goods that ſhould remain after Debts and Legacies paid. And it ſeemed to the Court, That ſuch Obligation is not good: But in regard the Caſe was of great conſequence, Adjournatur.
Debt brought by J. S. againſt A. P. Executor of H. W. upon Mich. 5, 6 Ph. & Ma. Stokes verſ. Porter. Moo. Rep. nu. 53.a Bond or Obligation of One hundred Marks; the Defendant pleaded, he was never Executor, nor Adminiſtred as Executor; whereupon they were at Iſſue, and at a Niſi Prius it was found by a ſpecial Verdict, That he had received Seven pound Debt due to the Teſtator, and made an Acquittance for the ſame, and took into his poſſeſſion ſeveral particular parcels of Goods of the Teſtators, and converted them to his own uſe: whereupon all the Juſtices reſolved, That it was an Adminiſtration; but at the Requeſt of Sir Anthony Brown they reſpited the Judgement; after the Defendant died, and it repented the Juſtices that they had not given Judgement.
The Ordinary may grant ſeveral Adminiſtrations of ſeveral parts 34. H. 6. 14. Roll. Abridg. tit. Executor. lit. D.of the Inteſtates Goods, 10 Ed. 4. 1. b. 18 H. 6. 22. b. 38 Ed. 3. 21. Alſo he may grant the Adminiſtration conditionally, as whereas it was before granted to J. S. who is now Out-lawed, or a Priſoner, or beyond Sea, &c. he may grant it to another with an Ita tamen, That if the ſaid J. S. return into England, he ſhall Adminiſter when he returns.
If an Executor takes only the Goods which the Teſtator in his 20 Ed. 4. 17. Roll. Abridg. tit. eod. lit. B. Roll. ibid. 11 H. 4. 84.life-time took from him per tort, it is not an Adminiſtration.
If certain Goods be deviſed to a Co-Executor, and he take them without the Aſſent of the other Co-Executor, it is an Adminiſtration, becauſe a Deviſee cannot take the Goods deviſed without the Executors Aſſent.
Adminiſtration may be committed of the Goods of a Woman Roll. ibid. tit. Execut. lit. E.Covert who dies Inteſtate, for poſſibly ſhe might have things in Action, which by the Law are not given to her Husband, nor after her deceaſe are at all inveſted in him. D. 8 Eliz. 25. 90. Admitt.
A man poſſeſſed of Goods, made an Infant his Executor, and Hill. 36 H. 8. Bendlowes 25. and Hugh's Abridgm. vol. 3. tit. Adminiſt.died; the Ordinary committed Adminiſtration durante minoriaetate of the Infant, to a Stranger: The Queſtion was, when the Infant came of full Age, what Remedy he ſhould have againſt the Adminiſtrator for the Goods? It was the Opinion of the Juſtices, That he ſhould not have an Account againſt him, but he might have Detinue againſt him for the Goods, or otherwiſe Sue him in the Eccleſiaſtical Court for them.
Debt againſt an Executor: The Defendant pleaded, That he Trin. 30 Eliz. B. R. Stubbs and Rightwiſe Caſe. Cro. 3. par. 92. & Hugh's ibid.had taken Letters of Adminiſtration: The Plaintiff replyed, That he Adminiſtred of his own wrong, and after took Letters of Adminiſtration. It was the Opinion of the Juſtices, That by his own Act he cannot purge himſelf of the firſt wrong; and therefore this Action by the name of Executor, good.Paſch. 30 Eliz. B. R. Henſon and Webbs Caſe. Cro. 3. part. 121. Mich 43, 44 Eliz… … R. Scidmore verſ. Winſtone. Cro. Rep. par. 3.
Note, it was reſolved per Curiam, That Debt upon a Contract of the Inteſtate doth not lye againſt an Adminiſtrator.
Debt by an Adminiſtrator. After Verdict it was moved in Arreſt of Judgement, That the Declaration was not good, becauſe he Counts, that Adminiſtration was committed to him by the Biſhop of St. Davids, and he ſaith not Loci illius ordinarius, nor cui Adminiſtratio pertinuit; ſed non allocatur. For it is intended that he is the Ordinary, and ſo is the common courſe of Declarations, unleſs the Adminiſtration is alledged to be committed by one who hath a peculiar Juriſdiction.
The Commiſſary of the Biſhop of London committed the Adminiſtration of Goods by word, and gave an Oath to the Adminiſtrator, which was Entered in the Acts of the Commiſſary; but there were no Letters of Adminiſtration, either in the name of the Commiſſary or Ordinary; and whether this was a good Adminiſtration granted by word, was the Queſtion? It was not reſolved, but the better Opinion ſeemed to be, that it was not. Vid. 21 H. 6. 29. 21 Ed. 4. 50. Vid. Co. 8 part. 31. Acc.It cannot be without deed.
If divers perſons be made Executors, and ſome of them refuſe at one time, and ſome of them at another, before the Ordinary, they may afterwards Adminiſter the Goods of the Teſtator, but if they all refuſe before the Ordinary, and the Ordinary commits the Adminiſtration of the Goods to another: Afterwards Cook 9 part. …. Henſlo…s Caſe.they cannot Prove the Will.
A Merchant of Ireland by an Obligation made in Ireland, became bound to A. B. of London; which Bond was in London, and there remained. A. B. died Inteſtate in Com. B. in England. The Biſhop of Ireland committed Adminiſtration to the Son of A. B. who releaſed the debt. The Arch-Biſhop of Canterbury committed the Adminiſtration to the Wife of A. B. and ſhe brought an Action of Debt againſt the Obligor; and adjudged the Action was maintainable; for that the Adminiſtration ſhall be committed by the Ordinary of the place where the Obligation is, and not where the Debt firſt did ariſe; becauſe it is not 1… Eliz. Dyer▪ 303. Lukars Caſe.Local.