degree, and though the rightful executor or administrator has assented to such retainer."(1) But even after action brought *961 by *a simple contract creditor, he may pay a specialty debt, and plead it in bar of the action."

*962

If an executor de son tort be sued by a rightful representative, in an action ex delicto, he may, under the general issue, give in evidence, in mitigation of damages, payments made by him in the rightful course of administration; but he cannot plead such payments in bar of the action; and though the payments proved to have been made by him, amount to the full value sought to be recovered, still the plaintiff will be entitled to nominal damages.(2) But such payments will not be allowed in damages if there be a failure of assets, as the lawful executor would, by these means, be deprived of his right of preferring one creditor to another of equal rank, or of giving himself the same preference. And where an executor proved a will, and the probate was revoked in consequence of another executor having proved a subsequent will, and the first executor, with a knowledge of these facts, sold goods of the testator's; it was held in an action of trover by the rightful executor, that the defendant was not entitled to show, in mitigation of damages, that he had administered assets to the amount.

A creditor taking goods in payment from an executor de son tort, cannot protect himself against the rightful executor, although, if the payment be just, he shall be recouped in damages.

f

An executor de son tort has a sufficient title to maintain an action against a mere wrong-doer for the seizure of a chattel. If he hands over goods on which the deceased had a lien, it is not a conversion.h

*An executor de son tort is uniformly declared against as if he were lawful executor, though the party died intestate; and he may be joined in the same action with the lawful executor, though not with the lawful administrator. And if the hus

1 Went. 333. Coulter's Case, 5 Co. 30. Cro. Eliz. 630. T. R. 587.

Curtis v. Vernon, 3

Oxenham v. Clapp, 2 B. & Ad. 309. (22 Eng. C. L. 84.) But if he afterwards, or even pendente lite, obtain administration, he may retain; for it legalises those acts which were tortious at the time. 1 Saund. 265. Yet it has been held, that a rightful administrator is not bound by an agreement made by him while he was executor de son tort. Doe v. Glenn, 1 Ad. & Ell. 49. (28 Eng. C. L. 33.) 3 Nev. & M. 837. Bac. Ab. Exec. (B. 3,) 2. 2 Bl. Com. 508. Greysbrook v. Fox, Plow. 282. Anon. 12 Mod. 441. Wms. 144.

Went. 335. Toller, 365. 2 Bl. Com. 508.

• Woolley v. Clarke, 5 B. & A. 744. (7 Eng. C. L. 249.) 'Mountford v. Gibson, 4 East, 441. 1 Saund. 265, 5th Ed. Oughton v. Seppings, 1 B. & Ad.

Smith, 1 Ch. Pl. 151.

Samuel v. Morris, 6 C. & P. 620.

241. (20 Eng. C. L. 38.) See Husband ".

(25 Eng. C. L. 565.)

1 Saund. 265. Com. Dig. Admin. C. 3. Toller, 369.

(1) (Acc. Glenn v. Smith, supra.)

(2) (Saam v. Saam, 4 Watts, 432. Glenn v. Smith, 2 Gill & Johns. 493.)

band of an executrix, after her death, detain part of the goods of a testator, he may be sued as executor de son tort."

SECTION III.

ADMINISTRATORS.

By the 31 Ed. III, s. 1, c. 11, the ordinary shall depute the Of the next and most lawful friends of the dead person intestate to party enadminister his goods; and the 21 Hen. VIII, c. 5, s. 3, pro- administer titled to vides, that in case any person die intestate, or that the executors named in any testament, refuse to prove it, the ordinary shall grant administration " to the widow of the deceased, or to the next of kin, or to both as by the discretion of the same ordinary shall be thought good." The same section further provides, "that where divers persons, equal in degree of kindred to the deceased, claim administration, the ordinary shall be at liberty to accept any one of them."

The husband has a right, exclusively of all others, to be the administrator of his wife,(1) even though the marriage be voidable, unless sentence of nullity be declared before her death; but he is not entitled to administration if the marriage be void, ab initio, as if the wife be of unsound mind. And in case the husband dies without taking out administration to his wife, the court will grant administration to the next of kin of the wife, and not to the representatives of the husband.e But such administrator shall be considered in equity as trustee for the representatives of the husband.

A widow has not a right to be appointed administratrix to *963 her husband, the ordinary has his election to grant it to her or to the next of kin, or he may grant it to them both jointly; or he may grant it to her as to part, and to the next of kin as to part. If a wife be divorced à mensa et thoro, she forfeits her right to the administration.i

If a bastard, who is nullius filius and has no kindred, dies intestate, and without wife or child, the crown is entitled to

* 1 Ch. P1. 51. Cro. Eliz. 472.

Humfrey v. Bullin, 1 Atk. 459. Sir George Sand's Case, 3 Salk. 22. Elliott v. Gurr. 2 Phillim. 19. Watt v. Watt, 3 Ves. 244. R. v. Bettesworth, 2 Stra. 1111. 29 Car. II. c. 3.

Browning v. Reane, 2 Phillim. 69.

Anon. 1 Stra. 525.

Reece v. Strafford, 1 Hagg. 347, and other cases cited in Wms. 244.

f Humfrey v. Bullin, 1 Atk. 458.

Roll. Ab. tit. Exec. D. Pl. 908.

i Pettifer v. James, Bunbury, 16.

Fawtry v. Fawtry, 1 Salk. 36.

(1) (See how the husband's right may be affected by the terms of the marriage settlement. Ward v. Thompson, 6 Gill and Johns. 349.)

administration, subject to the debts of the intestate." But the practice in such cases is, to transfer the claim of the crown by letters patent; and the ordinary grants administration to the appointee. If the ordinary refuses to grant administration in case of intestacy, pursuant to the directions of the statutes, the court of King's Bench, will compel him by mandamus But where the ordinary has an election, the court will not compel him to grant administration to any particular party, so as to deprive him of the election, but they will oblige him to grant it to some party.d

If none of the next of kin will take out administration, a creditor may by custom do it.

When and

administration

cum testa

mento an

SECTION IV.

ADMINISTRATION CUM TESTAMENTO ANNEXO.

If the deceased makes a will and appoints no executor, or if to whom through any cause an executor fails to act, as if he does not prove the will, or if after having proved it he dies intestate, without having administered the goods of the testator, the ordinary must grant an administration with the will annexed." nexo will In such cases as are not within the statutes, which are almost be granted 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. 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.i But if the residuary legatee declines, it is usual to grant administration to the next of kin, if he has any interest.

• Jones v. Goodchild, 3 P. Wms. 33. Megit v. Johnson, Doug. 548. 2 Bl. Com.

505.

• Manning v. Knap, 1 Salk. 37.

405.

R. v. Bettesworth, 2 Stra. 891. R. v. Hay, 1 Bl. 640. R. v. Horsley, 8 East,

Anon. Stra. 522, cited in 8 East, 408.

2 Bl. Com. 505.

Isted v. Stanley, Dyer, 372. Hayton v. Wolfe, Cro. Jac. 614. Day v. Chatfield, 1 Vern. 200.

See ante, 962.

Wetdrell v. Wright, 2 Phillim. 242. And see 1 Hagg. 341. i Atkinson v. Barnard, 2 Phillim. 318.

Taylor v. Shore, T. Jones, 162. Com. Dig.

Admin. (B. 6.) Thomas v. Butler, 1 Vent. 217. 2 Lev. 55. 1 Vent. 219. Wms. 286. West v. Willby, 3 Phillim. 381.

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."(1) 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. 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 *965 administrator, or of a surviving administrator, administration de bonis non will be granted, whether such administrator dies testate or intestate.c

1.—Administration durante minore ætate.] BESIDES the Who may administrations already treated of, which extend to the whole be admin

a

Bro. Ab. Admin. Pl. 7. Com. Dig. Admin. (B. 6.) 2 Bl. Com. 506.
Salk. 305.

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.

(1) (An administrator de bonis non can claim nothing but the goods of the intestate remaining in specie unconverted and unchanged at the time of the death of the original administrator. Potts v. Smith, 3 Rawle, 361. Bank of Penna. v. Haldeman, 1 Penna. R. 161. Kendall v. Lee, 2 Penna. 482. Hagthorp v. Hook's Adm., 1 Gill & Johns. 270.)

VOL. II.-14

istrator durante

personal estate of the deceased, and terminate only with the life of the grantee, it is competent to the ordinary to grant limiminore ted administrations, which are confined to a particular extent privileges of time, or to a specified subject matter. If an infant be apand liabil- pointed sole executor, or if the right of administration devolves ities.

ætate; his

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, 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 *966 *which are incumbent on an executor to do, and which are for the benefit of the estate. 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. He may grant leases. If an administrator durante minore ætate brings an action, he must aver in the declaration that the infant is still under age. 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 cognisance of the defendant.h

d

If an executor durante minore ætate has duly administered the assets, and paid over the surplus to the executor of full age, he may show this matter in an action by a creditor, under a plea of plene administravit. 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 He cannot,

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

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

Bac. Ab. Ex. (B. 1.)

Id. Com. Dig. Admin. (F.) Prince's Case, 5 Co. 29. Sparks v. Crofts, Comb. 465. Roskelly v. Godolphin, T. Raym. 483.

Bac. Ab. Leases, (I, 7) Wms. 305-6.

f Piggot's Case, 5 Co. 29, a. Walthal v. Aldrich, Cro. Jac. 590.

Bac. Ab. Ex. (B. 1.)

Beal v. Simpson, 1 Lord Raym. 409. Carver v. Hasilrig, Hob. 251.

Anon. Freem. 150. Wms. 308.

B. N. P. 145. Lawson v. Crofts, 1 Sid. 57.