The Orphans Legacy, Part 2 · Chapter 33
CHAP. XXXIII. Of Right to Adminiſtration.
1. What the Method of Succeſſion is by the Laws of this Realm.
2. How the Civil Law underſtands it.
3. The difference between the words [Kindred and Conſanguinity:] between [Cognatos and Agnatos.]
4. Whether an Alien no Denizon may be an Adminiſtrator.
5. Adminiſtration granted a Caveat depending, is void in Law.
1. BY the Law, both by the Statute Lawes, the Common Law, and by the Civil Law, the neareſt of Kin to the deceaſed Inteſtate is to ſucceed in the Adminiſtration of his Goods. a31 Ed. 3. c. 11. & 21 H. 8. c. 5. Littl. Broo. Sect. 233. 415. Fitzh. Excom. 13. Coke 9. 39, 40. & 3. 40. Dyer 339. & 4 H. 7. 14.As firſt to the Husband or Wife; but if they fail, then ſecondly, to the Children whether Male or Female; but if they fail, then thirdly, to the Parents, whether Father or Mother; but if they fail, then fourthly, to the Brothers or Siſters of the whole blood; but if they fail, then fifthly, to the Brothers or Siſters of the half blood; but if they fail, then ſixthly, to the next of Kin, as Uncles, Aunts, &c. From theſe the Ordinary cannot grant the Adminiſtration to a Stranger, if they ſeaſonably require it, and are not otherwiſe affected by ſome legal impediment; but he may grant it to which of theſe he pleaſe, if divers of them in equal degree do deſire it; yea, to a Stranger if they neglect it.
2. The Civil Law as to the Inteſtates Eſtate, whether Real or Perſonal, conſiders it all under the ſame Notion; yea, in this caſe it makes no diſtinction either of Ages or Sexes; but all that are concern'd may challenge an equal proportion, provided they be of equal degree, and of identity in blood, whether of the whole or of the half blood. But the Wife was otherwiſe provided for by the Civil Law, bl. 4. Sol. Mat….Therefore exempted from a Succeſſion to the Goods of her Inteſtate Husband. There are but Three Orders or Degrees chiefly of Kindred which the Civil Law doth ſpecially take notice of: The firſt is in the Right Line Deſcendent, as Children, Grand-Children, and ſo downwards. The Second is in the Right Line Aſcendent, as Parents, Grand-Parents, and ſo upwards. The Third is in the Line Tranſverſal or Collateral, as Uncles, Aunts, Great-Uncles, and ſo ſide-wards; alwayes remembring that the whole blood is more worthy than the half blood; and the nigher Degree more worthy than that which is more remote.
3. Conſanguineus or Conſanguinity, and Agnatus properly ſo called, and ſtrictly ſo taken, doth comprehend only them that be of Kin by the Fathers Side. cFranc. in c. Sciant. de Elect. 6. 2. Alex. Conſ. 229. n…. 10. vol. 6.Therefore the word Kin or Kindred is of a greater Latitude than Conſanguinity, becauſe it comprizeth Cognatos as well as Agnatos, and ſo comprehends all the Relations of both Lines, both Male and Female; for Cognati properly underſtood, ſignifie only ſuch as are the Mother-Side, and of the Female Line. And here Note, that the moſt remote Agnati or Kindred of the Line Male in a Right Line Deſcendent are preferred before the nigheſt Kindred of the Female Line; but it is otherwiſe in a Tranſverſal or Collateral Line. dCowell Inſt. jur. Angl. lib. 3. tit. 5.But as to Land in Fee or of Inheritance the Right thereof quaſi ponderoſum ever deſcends Downwards in a Right or Tranſverſal Line, and never doth Re-aſcend the ſame way that it Deſcended by the Anceſtors death; yet it may Aſcend à Latere or Sideward for want of Right Heirs in the Deſcendent Line, eGlanvile lib. 7. cap. 1. & Co…ell ubi ſup. lib. 3. cap. 1. §. ….which often happens.
4. Suppoſe an Alien born and not made Denizon happen to dye Inteſtate within this Realm, having Kindred born beyond Sea, and others though more Remote born in this Realm; In this Caſe an Alien may be Adminiſtrator, and have Adminiſtration of Leaſes, as well as of Perſonal Things, becauſe he hath them as an Executor in anothers Right, and not to his own Uſe: And he may be an Adminiſtrator as well as a perſon Out-Lawed or Attainted may be an Executor; and no Prohibition will lye in this Caſe.fCroo. Rep. Paſch. 1 Char. 1. in Sir Ʋpwel Car…on… Caſe.
5. An Adminiſtratrix Sued the Defendant in the Court of Chancery; the Defendant ſhewed, That before Adminiſtration was committed to the Plaintiff he had put in a Caveat in the Eccleſiaſtical Court, hanging which Caveat, the Plaintiff obtained Letters of Adminiſtration, of which he demanded Judgement pendant the Appeal. It is a good Cauſe to ſtay the Sute until the Appeal ſhall be determined. In this Caſe it was alſo ſaid, That the ſame was not like unto a Writ of Errour; for by the purchaſing of a Writ of Errour, the Judgement is not impeached until the Record be Reverſed: But the very bringing of an Appeal is a ſuſpenſion of the firſt Judgement for the principal matter.gMich. 42 El. Willoughby and Willoughby's Caſ. Goldesb. 119.
If an Executor dye Inteſtate, Adminiſtration ought to be granted of the firſt Teſtator, for now he is dead Inteſtate: 21 Ed. 4. 24. 26 H. 8. 7. But if an Executor after Adminiſtration dye Inteſtate, Roll. Abridgm. tit. Executor.and the Ordinary grant Adminiſtration of all the Goods of the Executor, he may Adminiſter the Goods of the firſt Teſtator, 10 Ed. 4. 1. Quaere, if an Adminiſtrator doth make an Executor, and dies, his Executor ſhall not have the Adminiſtration of theſe Goods, but a new Adminiſtration ought to be granted of them. 34 H. 6. 14. D. 32 H. 8. 47. 11. Co. 5. Brud. 9. b. Adjudged. And if an Executor before Probate of his Teſtators Will doth make his Executor, and dye, the Executors Executor cannot take upon him the Execution of the firſt Teſtament; but Adminiſtration of the firſt Teſtators Goods is to be granted cum Teſtamento annexo, D. 22, 23 Eliz. 372. 8.