The Orphans Legacy, Part 2 · Chapter 31
CHAP. XXXI. Of Adminiſtrations fraudulent and revocable.
1. The Statute of 34 Eliz. cap. 8. Touching fraudulent Adminiſtrations.
2. In what Caſe an Executor ought to Prove the Will notwithſtanding Letters of Adminiſtration granted to another.
3. Letters of Adminiſtration once granted, are not revocable at the Ordinaries meer will and pleaſure.
4. In what Caſe Acts done by a former Adminiſtrator are good in Law, notwithſtanding ſecond Letters of Adminiſtration afterwards granted.
5. Caſes in Law touching this Subject.
"1. FOraſmuch as it is often put in ure to the defrauding of Stat. 43 Eliz. cap. 8.Creditors, that ſuch perſons as are to have the Adminiſtration of the Goods of others dying Inteſtate committed to them if they require it, will not accept the ſame, but ſuffer or procure the Adminiſtration to be granted to ſome Stranger of mean Eſtate, and not of Kin to the Inteſtate, from whom themſelves or others by their means do take Deeds of Gifts, and Authorities by Letters of Atturney, whereby they obtain the Eſtate of the Inteſtate into their hands, and yet ſtand not ſubject to pay the Debts owing by the ſaid Inteſtate; and ſo the Creditors for lack of knowledge of the place of habitation of the Adminiſtrator, cannot Arreſt him or Sue him: And if they fortune to find him out, yet for lack of ability in him to ſatisfie of his own Goods, the value of that he hath conveyed away of the Inteſtates Goods, or releaſed of his Debts by way of Waſting, the Creditors cannot have or recover their juſt and due debts. Be it Enacted, That every perſon and perſons that ſhall hereafter obtain, receive, and have any Goods or Debts of any perſon Inteſtate, or a Releaſe, or other diſcharge of any Debt or Duty that belonged to the Inteſtate upon any fraud as aforeſaid, or without ſuch valuable conſideration as ſhall amount to the value of the ſame Goods, or Debts, or near thereabouts (except it be in or towards ſatisfaction of ſome juſt and principal Debt of the value of the ſame Goods or Debts to him owing by the Inteſtate at the time of his deceaſe) ſhall be charged and chargeable as Executor of his own wrong, and ſo far only as all ſuch Goods and Debts coming to his hands, or whereof he is releaſed or diſcharged by ſuch Adminiſtrator, will ſatisfie, deducting nevertheleſs to and for himſelf allowance of all juſt, due, and principal Debts upon good conſideration without fraud, owing to him by the Inteſtate at the time of his deceaſe, and all other payments made by him, which Lawful Executors or Adminiſtrators may and ought to have and pay by the Laws and Statutes of this Realm."
2. Although upon an Executors refuſal to Prove the Will and take on him the Office of Executorſhip, and thereupon Adminiſtration be committed, the Executor cannot (as ſome hold, ſed Quaere) go back again to Prove the Will, and aſſume the Executorſhip; aOffic. Exec. pag. 60.yet if only upon the Executors making default to come in upon Proceſs to Prove the Will, the Adminiſtration be committed; in that Caſe the Executor may yet at any time after Appear and Prove the Will, and ſo cauſe the Adminiſtration to be revoked. bMich. 27, 28. Eliz. inter Bale and Baxter.Alſo, if after an Executors refuſal it ſhall appear to the Ordinary that he had Adminiſtred before ſuch his refuſal, then may the Ordinary revoke ſuch Adminiſtration granted to another upon ſuch refuſal, and compel the refuſing Executor to Prove the Will; for that by ſo Adminiſtring precedent to his refuſal he hath accepted and determined his Election, and therefore cannot be admitted to accept and refuſe alſo; ſo that in this Caſe alſo the Adminiſtration may be revoked.
3. Some have been of Opinion, That the Ordinary after he hath granted Letters of Adminiſtration, may yet afterwards even without cauſe ſhewed, and at his meer pleaſure revoke the ſame, and grant it to another; yea, that if the Ordinary grant Letters of Adminiſtration to one, and then again afterwards grant Adminiſtration of the ſame Goods to another, that hereby the firſt Letters of Adminiſtration be vacated and revoked, albeit there be no expreſs words of revocation contained in the latter. c4 H. 7. …. Littl. Broo. Sect. 330. 34 H. 6. 14. Dyer 339. Broo. Adminiſt. 7.But indeed the Law ſeems far otherwiſe, and that the Ordinary, after he hath granted, according to the Statutes in that behalf provided, the ſaid Adminiſtration, cannot afterwards at his pleaſure revoke it, and grant the ſame to another without cauſe, that is, unleſs the It hath been adjudged per Curiam, that where the Ordinary hath granted Letters of Adminiſtration to one who ought to have them, that in ſuch Caſe they ought not to be revoked by the Ordinary. Paſch. 23 Char. in B. R. Beteſwor. … Caſe. Styles 10.firſt Adminiſtration were illegally granted, or where the firſt Adminiſtrator either cannot or will not Adminiſter, or the like.
4. Where there is a former Adminiſtration regularly granted, all Acts Lawfully Executed by the firſt Adminiſtrator as Adminiſtrator, are good in Law, and ſhall bind the next and ſucceeding Adminiſtrators. For this reaſon it is, that if Adminiſtration be granted to a Stranger, and the next of Kin ſue to have it revoked, and the firſt Adminiſtrator (pendente lite) during the ſute ſell the Goods on purpoſe to defeat the ſecond Adminiſtrator, and then the firſt Adminiſtration happens to be revoked, and the Adminiſtration to be committed to another; In this Caſe the ſecond Adminiſtrator cannot recover theſe Goods, or have any remedy, unleſs the firſt Sute for granting the Adminiſtration were by Appeal annulled; in which caſe all that the firſt Adminiſtrator did was void, and the ſecond Adminiſtrator in ſuch Caſe may recover all the Goods the firſt Adminiſtrator ſold. Again, if the firſt Adminiſtration be conditionally granted, all the Acts which the Adminiſtrator doth before the breach of the Condition, are good; ſo that the ſubſequent Adminiſtrator cannot avoid any gifts or ſales before ſuch breach made by the ſaid former conditional Adminiſtrator. d21 H. 8. 5. Coke 6. 18. New B. of Entries. 38. Plowd. 281. Cok. 6. 19. Dyer 339.But ſuppoſe the Biſhop of a Dioceſs doth, as he ought, grant Letters of Adminiſtration of the Goods of an Inteſtate, not having Bona Notabilia, to one: And the Arch-Biſhop grant Letters of Adminiſtration of the ſame goods to another; In this Caſe the effect of the firſt Adminiſtration is ſuſpended until the other be repealed by Sentence. And if there be a Will concealed, and thereupon Adminiſtration is granted, after which it happens that the Will is produced and Proved; In this Caſe the Adminiſtration is determined, and all Acts vacated which had been formerly done by ſuch a ſurreptitious Adminiſtrator.eBrownl. Rep. 2 part. 83. Coke 8. 135. Plowd. 281. 9 H. 5. 5.
5. In Trover and Converſion, the Caſe was; A man died inteſtate, and the Ordinary committed Adminiſtration to a Stranger; and afterwards the next of Kin of the Inteſtate Sued a Citation in the Eccleſiaſtical Court to have it repealed; and pendente Lite the Adminiſtrator ſold the Goods of the deceaſed to defeat the Plaintiff; and afterwards the Letters of Adminiſtration were revoked by Sentence, and the firſt Sentence annulled and made void, and new Adminiſtration granted to the Plaintiff. In this Caſe it was reſolved, that the Action did not lye; and here the difference was holden between a Sute by Citation, for to countermand or revoke the former Adminiſtration, and an Appeal, which is alwayes reſerving of a former Sentence; for an Appeal doth ſuſpend the former Sentence, otherwiſe of a Citation: And in this Caſe, becauſe the firſt Adminiſtrator had the abſolute property of the Goods in him, he might ſell them to whom he would; and although the Adminiſtration be afterwards revoked, the ſame ſhall not make void the Sale.f37 Eliz. in B. R. Coo. 6 part. 28. Tackman's Caſe.
Letters of Adminiſtration were granted to J. S. and he releaſed all Actions; and afterwards the Adminiſtration was revoked, and declared to be null and void by Sentence. It was adjudged, that in that Caſe the releaſe was void.gMich. 9 Jac. Rot. 2304. in C. B. Throgmorton and Hebby's Caſe. Brown. 1 part. 51.
An Adminiſtration may be granted upon Condition; and ſuch an Adminiſtration, if the Condition be not performed, may be revoked; But if ſuch an Adminiſtrator, before the Condition be broken, giveth away the Goods; yet ſuch a Gift is good.hCoo. 6 part. 19. in Packman's Caſe. Mich. 35, 36 Eliz. Anderſ. Rep. 313. Caſe.
It was agreed by the Court in Carew's Caſe, That if the Biſhop commit Adminiſtration, he may revoke the ſame without any Sentence of Revocation to be given in any Eccleſiaſtical Court, or elſewhere.
It was adjudged, That if a Metropolitan grant Adminiſtration Hill. 22 Eliz. B. R. inter Veere and Jefferyes. Moo. Rep. nu. 288.where the Inteſtate hath not Bona Notabilia in divers Dioceſſes, it is voidable, not void. But 19 Eliz. it was clearly held, That if a Biſhop of a Dioceſs grant Adminiſtration which appertains to the Metropolitan, it is void.
Two Executors were in Sute which of them was the True Executor, Trin. 43 Eliz. C. B. Robyns Caſe. Moo. 874.the Ordinary (depending the Sute) granted Adminiſtration, it ſeemed to the Court that he could not ſo do.