confined to cases of intestacy, the court have a discretion in the choice of an administrator, and the practice is to elect such of the claimants as has the greatest interest in the effects of the deceased b. Hence, in all cases where no executor is appointed, or when appointed fails to represent the testator, the residuary legatee, if there be one, is preferred to the next of kin, and entitled to administration with the will annexed; for he is the testator's choice, and if there be several entitled to the residue, administration may be granted to any of them. But if the residuary legatee declines, it is usual to grant administration to the next of kin, if he has any interest".

SECTION V.

ADMINISTRATION DE BONIS NON.

Ir a sole executor die without proving the will, the executorship is not transmissible to his executor, but is wholly determined, and the ordinary must grant administration cum testamento annexo. If the executor dies after probate intestate, no interest is transmissible to his own administrator; but administration de bonis non administratis (that is, of the goods of the original testator, left unadministered) must be granted e. But if he dies before probate, having administered part of the personal estate of the testator, the administration shall not be de bonis non; but an immediate administration f. If one of several executors dies, before or after probate, no interest is transmissible to his own executor, but the whole representation survives to his companion. Where such surviving executor dies after probate, having made a will appointing his own executor, the representation of the original testator will be transmitted to him. In every case where a sole executor or a surviving executor dies intestate after probate, an administration

de bonis non will be granted. So upon the death of a sole administrator, or of a surviving administrator, administration de bonis non will be granted, whether such administrator dies testate or intestate a.

be administrator du

rante mi

nore ætate;

his privi

liabilities.

1.—Administration durante minore ætate.] BESIDES the ad- Who may ministrations already treated of, which extend to the whole personal estate of the deceased, and terminate only with the life of the grantee, it is competent to the ordinary to grant limited administrations, which are confined to a particular extent leges and of time, or to a specified subject matter. If an infant be appointed sole executor, or if the right of administration devolves upon him, under the statute, an administration durante minore ætate must be appointed. Formerly an infant executor was considered capable of the office on arriving at the age of seventeen, but now, by the 38 Geo. III. c. 87. s. 6, after reciting that inconveniences arose from granting probate to infants under the age of twenty-one, it is enacted, "that where an infant is sole executor, administration with the will annexed shall be granted to the guardian of such infant, or to such other person as the spiritual court shall think fit, until such infant shall have attained the age of twenty-one years, at which period, and not before, probate of the will shall be granted to him."

An administrator durante minore ætate may not only bring actions to recover debts due to the deceased b, but he may also bring trover for the goods, because he has more than the bare custody of them, for he has the property itself; and though he has only a special property in the goods, he may do all acts

a 3 Bac. Ab. tit. Exec. (G.). 2 Bl. Com. 506. An administrator de bonis non will be the only representative of the original deceased party.

VOL. II.

b Com. Dig. Admin. (F.). Piggot's Case, 5 Co. 29. a.

c Com. Dig. id. Sethe v. Sethe, Roll. Ab. Ex, (F.). Williams, 305.

which are incumbent on an executor to do, and which are for the benefit of the estate a. He may sell goods for the payment of debts; he may assent to a legacy, and receive debts due to the deceased. He may also sue for debts, and if an action be brought against him, and the administration determine, pending such action, he may retain assets to satisfy the debt which is attached on him by the action b. He may grant leases c. If an administrator durante minore ætate brings an action, he must aver in the declaration that the infant is still under aged. But the defendant can take advantage of the omission on special demurrer only. If an action be brought against such administrator, the plaintiff need not aver that the infant is still under age, for it is a matter more properly within the cognizance of the defendant f.

If an executor durante minore ætate has duly administered the assets, and paid over the surplus to the executor of full age, he may shew this matter in an action by a creditor, under a plea of plene administravit s. But if he has committed devastavit he will be liable to creditors, even though he should obtain a release from the infant when of full age h. He cannot, however, be charged for waste, as executor de son tort, after the infant has attained twenty-one, for he had authority to administer 1.

An administrator durante minore ætate of the executor of an executor is the representative of the first testator; and in an action by the creditor of the original testator, such an administrator is properly charged as the administrator of the second executor, and not as the administrator de bonis non of the original testator k.

2.—Administrator pendente lite.] When a suit is commenced

in the ecclesiastical court concerning an executorship, or the right of administration to an intestate, the ordinary may appoint an administrator pendente lite, who is merely an officer of the court, and holds the property only until the suit terminates. Such an administrator may maintain actions for the recovery of debts due to the deceased, but his authority is confined to the collection of effects, he cannot vest or distribute them ", and when the suit is terminated, he must pay over all he has received in the character of administrator, to the person pronounced by the court to be entitled ".

3.—Administrator durante absentia.] If the executor named in the will or the next of kin be out of the kingdom, the ecclesiastical courts may, before probate is obtained or letters of administration taken out, grant to another administration during his absence, but it must be an absence out of the realm to justify such an appointment d. But when probate was once granted, and the executor had gone abroad, the courts did not feel themselves authorized to grant new administration on the ground that the executor had left the kingdom; a defect in the authority of the court which was productive of much inconvenience; to remedy which the statute 38 Geo. III. c. 87, after reciting the inconvenience, enacted, "that if at the expiration of twelve calendar months from the death of any testator, the executor to whom probate is granted shall not reside within the jurisdiction of the courts, a creditor or next of kin may obtain a special administration for the purpose of being made a party to a bill in equity to be exhibited against him, and to carry the decree into effect, and no further." By sec. 4, the court of equity may appoint persons to collect outstanding debts.

It has been decided that the provisions of this act apply only to cases where there are proceedings in Chancery, in all

2 Walker v. Woollaston, 2 P. Wms. 576. 2 Stra. 914. Knight Duplessis, 1 Ves. Sen. 325. Ball s.Oliver, 2 Ves. & B. 97.

Gallican v. Evans, 1 Ball & Beaty, 192. Adair v. Shaw, 1

Scho. & Lef. 254.

с

Id. 255. In the goods of Graves, 1 Hagg. 313.

Clare v. Hodges, 1 Lutw. 342. Slater v. May, 2 Ld. Raym. 1071. 2 Salk. 42.

other cases the spiritual court can only grant administration durante absentia, on the ground that there is no legal repreWhen an administrator has been appointed under

the statute, if the executor dies, to whom the probate had been granted, the administration, notwithstanding, continues until the appointment of a new representative". In an action by a person to whom administration durante absentia is granted, the declaration must aver, the absence of the executor beyond the seas at the time that the administration was granted, and that his absence continued.

or administration

SECTION VII.

OF BONA NOTABILIA.

Of probate In general, the will of the testator is to be proved before the ordinary of the diocese in which he resided, and if all his goods where there and chattels be within the same jurisdiction, a probate before

are bona

notabilia.

the ordinary, or an administration granted by him, are the only proper ones d. But if the deceased at the time of his death had bona notabilia to the amount of five pounds within some other diocese or peculiar e than that in which he died, then the will must be proved before the metropolitan of the province by way of special prerogative, whence the courts where the validity of such wills is tried, and the offices where they are registered are called the Prerogative courts, and the Prerogative offices of Canterbury and York f. Where there are bona notabilia in one diocese of Canterbury and one of York, the bishop of each diocese must grant an administration. Where, in two dioceses

a In the goods of Davies, 2 Hagg. and under a peculiar and special 79. Wms. 319.

26.

Taynton v. Hannay, 3 B. & P.

• Slater v. May, 2 Lord Raym. 1071.

2 Bl. Com. 508.

A peculiar is a district exempt from the jurisdiction of the ordinary of the diocese in which it lies; and it is called a peculiar because it is excluded from the common ordinary,

ordinary of its own. 2 Gibs. Cod. 978. Denham r. Stephenson, I Salk. 41. Parham v. Templer, 3 Phillim. 245. And such special ordinary is empowered to grant probate and administration in respect of the goods of those who die within them leaving no bona notabilia out of their limits. See further on this subject, Wms. 166. n.

f 2 Bl. Com. 508.