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teftament, without entering into a minute difcuffion of in teftacy, which would be foreign to this subject, and therefore fhall be referved for the latter part of this work; it being our prefent intention to fhew how the law difpofes of a perfon's eftate in cafe he dies wholly inteftate, and not to point out the various kinds of inteftacy.It is called a will, fays Wentworth, when there is an executor appointed; and when there is none, it is termed a teftament. So there may be a will where there is no teftament, and a testament where there is no will. And where a teftament is made without an executor being named, this teftament is to be adhered to as a guide to the adminiftrator in disposing of the eftate, in the fame manner, as where one or more executors are named, and they refufe to act".

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SECTION THE SECOND.

OF ADMINISTRATION: WHY IT SHOULD BE.
OBTAINED, AND WHO ARE ENTITLED THERETO.

A

N adminiftrator cannot act before letters of administration are granted to him; he not being like an executor, who may do many acts before he proves the will; but an adminiftrator may do nothing till letters of administration are iffued. When letters of adminiftration are iffued, the perfon deputed by the ordinary, that is, he who grants the letters of adminiftration, to adminifter the inteftate's goods, fhall have an action to demand and recover, as executor, the debts due to the inteftate.

IF the deceafed die wholly inteftate, without making either will or teftament, then general letters of administration must be granted by the ordinary to fuch adminiftrator as the statutes of 31 Edw. III. c. 11. and 21 Hen. VIII. c. 5. direct; and in confequence of which the ordinary is compellable to

-e See Page 170.

e Black. Com. 2 V. 507.

d Went. Off. Exec. 2.

f Stat, 31 Edw. III. c. 11.

grant

grant adminiftration of the goods and chattels of the wife to the husband, or his representatives %, that is, his executors or adminiftrators, who, if the husband dies before adminiftration taken, will be entitled in equity, and not the wife's next of kin ". And that the adminiftration of the wife's goods of right appertaineth to her husband, is confirmed by the statute of the 29 Car. II. c. 3. which enacteth, that the ftatute of the 22 & 23 Car. II. c. 10. (commonly called the ftatute of distributions) fhall not extend to the eftates of femes-covert that shall die inteftate; but that their husbands may demand and have administration of their rights, credits, and other perfonal estates, and recover and enjoy the fame. But if the wife was executrix to another; then, as to the goods which she had in that capacity, administration must be granted to the teftator's next of kin *.

By the ftatutes of Edward the Third and Henry the Eighth, before mentioned, the ordinary is compellable to grant administration of the husband's effects to the widow, or next of kin. But he may grant it to both, or either, at his difcretion. For, it being moved for a mandamusm to the

g Black, Com. 2 V. 504.

King's dominions, requiring them to h Cro. Car. 106. 1 P. Will. 381. do fome particular thing therein speci 3 Atk. 526.

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fied which appertains to their office and duty. And this writ may be obtained for an infinite number of other pur pofes. It is grounded on a fuggeftion, by the oath of the party injured of his own right and the denial of justice. Black. Com. 3 V. 110-The matter for which this writ is obtained must be laid before the court. 3 New Abr. 528. And as the matter must be laid before the court, it must be in term time, when the court is fitting. The manner of laying it before the court is by counfel, who moves the court on the oath of the injured party; which oath is delivered to him in writing, with his inftructions, as previously drawn up by an attorney.

B 2

official

official of the bishop of Gloucester, to commit administration to the widow of an inteftate, the court observed, that would be to deprive the ordinary of his election, in granting it to her, or the next of kin; and therefore ordered the mandamus to be taken generally, to grant administration of the goods of the inteftate ".-The ordinary may grant adminiftration, either jointly or feparately; for he may grant feveral administrations of feveral parts of the goods of the inteftate; as where a man died inteftate, leaving a wife and a brother, the ordinary had granted adminiftration of fome particular debts to the brother, and the refidue to the wife. It was agreed by the court, that the ordinary might grant administration to the brother, as to part, and to the wife for the reft, in which cafe neither could complain; fince the ordi→ nary need not have granted any part of the administration to the party complaining. But if the inteftate leave a bond of 100l. the ordinary cannot grant administration of 50l. to one perfon, and 50l. to another, because this is an entire thing.

As concerning the inteftate's next of kin: Among the kindred, thofe are to be preferred that are the nearest in degree to the inteftate; but of perfons in equal degree, the ordinary may take which he pleases 9. The nearness of degree fhall be reckoned according to the computation of the civil, and not of the canon law; and therefore, where there be both parents and children of the deceased, the children are entitled to the adminiftration in preference to the parents, though both are in equal degree of kindred; and on failure of children, the parents are entitled. Then follow brothers, grandfathers, uncles, or nephews, (and the females of each class respectively), and laftly, coufins.-The half blood is admitted to the administration as well as the whole : for they are of the kindred of the inteftate, and only excluded from inheritances of land. Therefore the brother

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of the half blood fhall exclude the uncle of the whole blood", and the ordinary may grant administration to the fifter of the half, or the brother of the whole blood, at his own difcretion". But if there is a brother and a fifter of the half blood, and the fifter is married, then it must be granted to the brother, and not to her and her husband; becaufe in effect it makes the husband adminiftrator, who is not of kin to the inteftate; and if fhe die, the hufband would ftill continue administrator, and so might poffefs himself of the whole personal estate ",

WHEN the right of adminiftration devolves upon an infant, the ordinary is to grant administration till he arrives at the age of twenty-one; because an infant cannot, before his full age, give bond to adminifter faithfully. And as fuch an adminiftrator is but in nature of a curator for the infant, and has no interest or benefit in the inteftate's estate but in right of the infant, it has always been held difcretionary in the ordinary to whom to grant it; and therefore it hath been frequently adjudged, that he is not obliged, within the ftatute of Henry the Eighth, to grant it to the next of kin, either of the deceased or the infant.-If none of the kindred will take out administration, a creditor may by custom do it. And the ordinary may, in defect of all thefe we have here mentioned, commit adminiftration (as he might have done before the ftatute of Edward the Third, when the ordinary had the abfolute disposal of inteftates effects) to fuch a difcreet person as he approves of; or may grant him letters ad colligendum bona defuncti; that is, to gather up the goods of the deceased, which neither make him executor nor adminiftrator; his only business being to keep the goods in his safe

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custody, and to do other acts for the benefit of fuch as are entitled to the property of the deceafed .-If an administrator die, his executors are not adminiftrators; but it behoveth the ordinary to commit a new administration. Where the administration is granted to two, and one of them dies, the administration surviveth to him who is living .

SECTION THE THIRD.

WHERE, AND BY WHOM ADMINISTRATION IS

THE

TO BE GRANTED.

HE applying for and obtaining adminiftrations from improper courts, having often been detrimental to administrators; and as applications through inadvertency are too frequently made to inferior courts inftead of the prerogative, it was thought expedient in our explanation preceding the contents of this work, to lay down a clear and plain method, whereby every perfon having occafion for applying to the prerogative court, might readily perceive in what manner he might have access thereto, when ill or living, at a distance from London; and in our proceeding herewith we have referred to this fection, with a view to inform the reader of the circumstances that may render fuch application neceffary, either for obtaining administration or probate of a will, the latter whereof is to be applied for to the fame court by whom the former ought to be granted, as we have shewn at the conclufion of this fection.

GENERALLY the perfon who is to grant administration is the bishop of the diocefe, or his officer, where the inteftate dwelled d. And if all the goods of the deceased lie within the fame jurifdiction, an administration granted by him is the only proper one; but if the deceased had bona notabilia, or chattels to the value of one hundred fhillings, or five pounds, in two diftinct diocefes; then adminiftration must be taken out before the metropolitan of the province. But if a man die upon a journey, the goods that he then hath about or with him fhall not be as bona notabilia

a Went. Off. Exec. chap. 14.

b Roll's Abr. 907.

c Caf, Talb. 127.

d Swinb. 427.

• Black. Com. 2 V. 509.

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