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administrators, but it was by the name of executors until the said statute of the 31 Ed. 3. 2 Inst. 398.

To the ordinary] If the ordinary take goods of the intestate, 5 2737 being out of his diocese, he shall not be charged as ordinary by this act; because he taketh them of his own wrong, and not as ordinary, in which right he is to be charged by this act. 2 Inst. 398.

Ordinary] That is, not only the bishop, but every one that is in stead of the bishop, in this matter of taking care and cognizance of the goods of intestates; as archdeacon, chancellor, commissary, official, and those who have peculiar jurisdiction. Some of whom having, from time to time, accidentally omitted their title, or style of jurisdiction in the letters of administration, by them granted, have occasioned various contests in the courts of common law, concerning the validity of administrations executed in virtue of such letters; as the judgments upon the validity or invalidity of them have been also various. The enumeration of which is not material ; since there is one safe, short, and plain rule, (viz. the inserting in all such letters the style of jurisdiction, as well as the name of the ordinary) which, being observed, is a security for ever against all such contests. Gibs. 478.

And not only an ordinary or guardian of the spiritualties, or others that be in the place of the ordinary of right, are within this act; but also such as usurp the place, and are in possession by wrong, are to be charged by this act. 2 Inst. 398.

To be disposed] If it be demanded what interest the ordinary hath in the goods of the person intestate, which come to his hands; it is answered, that he hath such an interest, as the administrator to whom administration is committed during the minority of an executor, to the behoof and profit of the executor, and not otherwise, nor in other manner. So as the ordinary may administer for the good of the intestate, but cannot give the goods of the intestate, or do any thing to his prejudice. 2 Inst. 398.

The ordinary from henceforth shall be bound] If goods of the intestate come to the hands of the ordinary, and he dieth, although the words be that the ordinary shall be bound, yet his executors or administrators shall be charged in an action of debt; for when this act bindeth the ordinary, by consequence his executors or administrators are bound. But if the ordinary commit administration to one, and he taketh the goods into his possession and dieth, no action lieth against his executors. 2 Inst. 398.

If the ordinary take goods into his hands of the intestate, and [ 274 7 after commit administration, and the ordinary retaineth the goods; he shall be charged, notwithstanding the committing of administration. 2 Inst. 398. - Shall be bound to answer] At the common law the ordinary

might have had trespass for goods taken out of his possession : but no action did lie against the ordinary: but now by this statute an action lies against him; but he cannot have action by this

statute. 1 Roll. Abr. 906. Ordinary 2. If administration is denied by the ordinary to the person may be, who is entitled to it, a mandamus will go from the temporal compelled.

courts to grant it; except a controversy is depending, whether there is a will or not; for then (as Holt chief justice said) suppose the will should prove good, what will the granting of administration signify ? Gibs. 478.

H. 3 G. 2. K. and Bettesworth. In the case of a will, a mandamus was granted to Dr. Bettesworth, as judge of the prerogative court of Canterbury, to grant probate of the earl of Londonderry's will, to the executors therein named. The doctor returned, that it was the custom and practice of the prerogative court, that if any creditor of the deceased enters a caveat against granting probate, and swears himself to be a creditor, there goes out a commission of appraisement, till the return whereof the judge hath not used nor ought to grant any probate; then he sets out, that two creditors, who swore to their debts, entered a caveat, and prayed a commission of appraisement; which was decreed and issued, but is not yet returnable; and for that cause he cannot as yet grant a probate. Upon argument, the court held the return to be ill; for that the judge can only stay the probate, where there is a contest about the validity of the will. This commission of appraisement can be of no use but to spend money, and delay the executor from getting in the effects of the testator. And by the 21 H. 8. C. 5. the probate is to be granted with convenient speed without any frustratory delay; and the ecclesiastical court shall never be suffered to set up their practice against the law of the land. And a pereniptory mandamus was granted. Str. 857. , H. 4 G. 2, Smith's case. It was moved for a mandamus to Dr. Bettesworth, commanding him to grant administration to Smith of the goods of his deceased son, during the minority of

his grandson. Against this it was insisted, that a father hath not [ 275 )

an equal right with the son; and that the spiritual court hath always considered these administrators only as trustees for the infant, and have never kept to any rule in granting them, but according to the circumstances of the family: where there are several in equal degree, as children, they have always chosen which they pleased. And by the court, when we grant a mandamus, it is to oblige the judge to do right to the party who sues the writ; but as there is no law which says to whom these administrations during minority shall be granted, there is no law to be put in execution. In the case of the next of kin, he is intitled de jure ; and therefore in this case we grant a mandamus

of course. We will grant no mandamus in this case. Str. 892. [Vid. infra, 14.]

M. G. 2. K. and Bettesworth. John Kynaston, esq. made his will, and two persons executors, and left the residue of his personal estate to his youngest son Edward. The executors renounced; and the residuary legatee moved for a mandamus to be admitted to prove the will, and have administration with the will annexed. And a rule was made to shew cause. On shewing cause, it was insisted, that this case differed from lord Londonderry's, where the commission of appraisement was set up against the immediate grant of the probate, which the statute of the 21 H. 8. c. 5. requires shall be without any frustratory delay; and the ordinary hath no election there: whereas in the present case, he is not bound to grant the administration to the residuary legatee, none of the statutes mentioning him; on the contrary, the statute of the 21 H. 8. c. 5., which takes notice of the renunciation of executors, leaves the matter to the election of the ordinary. And of this opinion was the court: who said, if the commission of appraisement was a grievance, it would be proper matter of appeal, but they could not break into the practice of the court below. And lord Hardwicke mentioned a case in chancery before lord Macclesfield, between Wheeler and the archbishop of Canterbury, where it was held, that these sort of administrations are not within the statute of distribution; which brings it to Smith's case, where a mandamus to grant administration during the minority of an executor, to the father of the executor, was refused; because there was no law obliging the spiritual court so to do. And the rule for a mandamus was discharged. Str. 956.

H. 4 G. 2. K. and Bettesworth. Mandamus to grant administration to John Cullom, of Joan his wife. Return: that by articles r 276 7 before marriage it was agreed, that the wife should have power to make a will, and dispose of her leasehold estate; that pursuant to this power, she made a will, and her mother executrix, who hath duly proved the same. To this return it was objected, that she might have things in action not covered by the deed, and the husband was in all events intitled to an administration as to them. Which was agreed to by the court; and a peremptory mandamus was granted. Str. 891..

T. 12 G. 2. K. and Bettesworth. Mandamus to grant administration to Mr. Bridgen, husband of the late lady Bellamont deceased. The dean of the arches returned, that a suit had been commenced before him, between Mr. Bridgen and a son of the deceased, who claimed to be her executor under a will made by her pursuant to a deed executed before marriage; whereby the husband agreed she should have power to make a will, and dispose of her estate; which deed Mr. Bridgen had confessed;

and thereupon sentence had been given for the validity of the disposition, but not for any executorship created thereby: and thereupon a new suit was instituted by the daughter against the son and Mr. Bridgen, for administration with the will annexed; which is still depending. And upon consideration the court declared, that no peremptory mandamus ought to go: for though generally the husband is intitled to the administration as next of kin; yet that is in respect of the interest he has in the estate, and because nobody is in equal degree: and that is the reason, why administrations are so often granted to a residuary legatee: and though strictly speaking this is no will, but rather an appointment which is to operate in equity; yet the true question is, whether this is such an intestacy as is within the meaning of the statute. And the law, particularly the 29 C. 2. c. 3., considers femes covert as having some right to dispose of their effects, which can only be by the agreement of the husband, which appears in this case; and this differs greatly from the case of Cullom, where the power was only as to a leasehold estate, whereas she might have other effects. The matter is properly under the consideration of the spiritual court to whom to grant the administration, and there is no reason for us to interpose;

and therefore the return must be allowed. Str. 1112. Refusal of 3. The person to whom administration is granted, may refuse administra- to take it upon him if he will; for the ordinary hath not power tion.

to compel him to accept it. Swin. 384. [277] 4. By the statute of the 31 Ed. 3. st. 1. c. 11. In case where To be a man dieth intestate, the ordinary shall depute to the next and granted to the widow

most lawful friends of the deceased, to administer his goods. or next of The ordinary shall depute] Before this statute the ordinary

was not compellable to grant administration ; but now by this act he is commanded, and thereby compellable to grant administration; and a refusal to do it is a contempt to the king, and an injury to the party. 9 Co. 40.

To the next and most lareful friends] Before this act, the ordinaries might have granted administration to whom they pleased; but hereby they are restrained to the next and most lawful friends. 9 Co. 40.

Most lareful friends] That is, to the next of blood, who are not attainted of treason, felony, or have other lawful disability. 9 Co. 40.

As, by the 9 & 10 W. c. 32. persons denying the Trinity, or asserting that there are more Gods than one, or denying the christian religion to be true, or the holy scriptures to be of divine authority, shall for the second offence be disabled to be administrators.

And by the several acts for qualifying for offices, persons executing their offices not being qualified, after the time limited for their qualification shall be expired, shall be disabled to be administrators,

kin.

and a refunded, and to grant admin

If a bastard dies intestate, without wife or issue, leaving a personal estate; in such case, the king shall be intitled, and the ordinary shall grant administration to the king's patentee. 3 Peere Will. 33.

And by the statute of the 21 H. 8. c. 5. In case any person die intestate, or the executors named in any testament refuse to prove the said testament; then the ordinary, or other person having authority to take probate of testaments, shall grant the administration of the goods of the testator, or person deceased, to the widow of the same person deceased, or to the next of kin, or to both, as by the discretion (3) of the same ordinary shall be thought good. And in case where divers persons claim the administration as next of kin, which be equal in degree of kindred to the testator or person deceased : and where any person only desireth the administration as next of kin, where indeed divers persons be in equality of kindred; in every such case the ordinary to be at his election and liberty to accept any one or more making request, where divers do require the administration : or where but one, or more of them, and not all being in equality of degree, do make request; then the ordinary to admit the widow, [278] and him or them only making request, or any one of them, at his pleasure. $ 3, 4. (n)

To the widow of the same person deceased, or to the next of his kin] T. 9 G. It was moved for a mandamus to the official of the bishop of Gloucester to commit administration to the widow of an intestate. But by the court: That will be to deprive the ordinary of his election, in granting it to her, or the next of kin; therefore take your mandamus generally, to grant administration of the goods of the intestate. Štr. 552. (4)

Or both] And this, either jointly or separately (5): for the
(3) See the cases of The King v. Bettesworth, supra, 275, 276.

(n) The construction of this statute, upon the proximity of degrees, must be according to common law. 12 Mod. 616.

(4) A widow (cousin german to her deceased husband) cannot take administration in a double capacity, as widow and one of the next of kin, under 22 & 23 C. 2. c. 10. Per sir W. Wynne, in Booth v. Panton, Mich. T. 1788, Prerog. MSS. Cas. 14. Administration was granted to a second wife, the first having been divorced a vinculo by a royal ordinance in Denmark (see Harford v. Morris, 2 Hagg. Rep. 423.), the parties divorced being both Danish subjects. Ryan v. Ryan, 2 Phill. Rep. 332.

(5) The court prefers cæteris paribus sole to a joint administration ; Sole or joint because it is infinitely better for the estate. Administrators must administrajoin and be joined in every act, which would not only be inconvenient tion. to themselves, but, what is of more consequence, must be inconvenient to those who have demands on the estate, either as creditors or as entitled in distribution. Warwick v. Greville, 1 Phill. Rep. 126.

A fortiori, the court never forces a joint administration, or grants

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