however, be charged for waste, as executor de son lort, after the infant has attained twenty-one, for he had authority to administer.a

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."

2.-Administrator pendente lite.] When a suit is commenced in the ecclesiastical court concerning an executorship, *967 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. (1)

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. But when probate was once granted, and the executor had gone abroad, the courts did not feel themselves authorised 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.

Palmer v. Litherland, Latch. 160.

Anon. Freem. 288. Norton v. Molyneux, Hob. 246.

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

d Gallican v. Evans, 1 Ball & Beaty, 192. Adair v. Shaw, 1 Scho. & Lef. 254. * Id. 255. In the goods of Graves, 1 Hagg. 313.

'Clare v. Hodges, 1 Lutw. 342. Slater v. May, 2 Lord Raym. 1071. 2 Salk. 12.

(1) (Com.v. Mateer, 16 Serg. & R. 416. Ellmaker's Estate, 4 Watts, 34.)

*968

It has been decided that the provisions of this act apply only to cases where there are proceedings in Chancery, in all *other cases the spiritual court can only grant administration durante absentia, on the ground that there is no legal representative." When 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.c

Of probate

istration

where

there are

bilia.

d

SECTION VII.

OF BONA NOTABILIA.

In general, the will of the testator is to be proved before the or admin- ordinary of the diocese in which he resided, and if all his goods and chattels be within the same jurisdiction, a probate before the ordinary, or an administration granted by him, are the only bona nota- proper ones." 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 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. 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 *of each province, there must be two prerogative administrations.f

*969

Where a canal was situated in the provinces of Canterbury and York, but the office for transacting the business of the canal was in the former province, it was held sufficient to prove

In the goods of Davies, 2 Hagg. 79.
Taynton v. Hannay, 3 B. & P. 26.
2 Bl. Com. 508.

Wms. 319.

© Slater v. May, 2 Lord Raym. 1071.

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, and under a peculiar and special ordinary of its own. 2 Gibs. Cod. 978. Denham v. Stephenson, 1 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.

12 Bl. Com. 508.

Burston v. Ridley, Salk. 39.

the will of a shareholder in the Prerogative Court of Canterbury."

If a man die in itinere, the goods which he has about him at that time shall not cause administration to be taken out in the prerogative court; but if he die not in itinere in a diocese in which he has no goods, but having bona notabilia in another diocese, it will be sufficient to authorise the archbishop to grant probate. To give jurisdiction to the prerogative court, it is not necessary that the deceased should have goods to the amount of five pounds in each of the several dioceses where his goods are dispersed; it is sufficient if he were possessed of goods in some other diocese or dioceses or jurisdictions, altogether amounting to the value of five pounds, besides those in the diocese wherein he died. Where one dies possessed of bona notabilia in a diocese, and also in a peculiar within that diocese, or in several peculiars within the same diocese, probate shall not be granted by the bishop of the diocese, but by the metropolitan, inasmuch as they are exempt from ordinary jurisdiction. But where one dies possessed of bona notabilia in the diocese of an archbishop and in a peculiar within the same diocese, there must be two probates or letters of administration, one within the peculiar, and the other by the archbishop as ordinary of the diocese.

If the ordinary grants probate or letters of administration Effect of where the deceased had bona notabilia in different dioceses in the taking out

adminis

bona nota

same province, they are absolutely void; but if the archbishop probate or grants probate or letters of administration where the *deceased tration in had not bona notabilia in diverse dioceses, they are not void a wrong but voidable only. So, if there be bona notabilia in a pecu- 970 liar, and also in other parts of the diocese, a metropolitan ad- diocese ministration is not void, and it is doubtful whether it is even where voidable. Where administration is granted in a wrong dio- there are cese it is void, but where granted to a wrong person it is void- bilia. able only. Where a diocesan probate is void, under the circumstances above stated, it may be pleaded in bar to an action by such executor or administrator, "that there were bona notabilia in diverse dioceses," or the defendant may give that matter in evidence upon a plea of ne unques executor, &c., for it confesses and avoids, and does not falsify the seal of the ordinary But if the defence be that the contract which

Smith v. Stafford, 2 Wils. C. C. 166. 1 Roll. Ab. 209, tit. Ex.

Swinb. pt. 6, s. 11, Pl. 5.

* Anon. 1 Lev. 78. Gibs. Cod. 472. Parham v. Templer, 3 Phillim. 247. 1 Gib. Cod. 472. Price v. Simpson, Cro. Eliz. 719. But see Lysons v. Barrow, 2 Bing. N. C. 486, (29 Eng. C. L. 402,) post, 970. R. v. Loggen, 1 Stra. 75. Blackborough v. Davis, 1 P. Wms. 43. Needham's Case, 8 Co. 135. Prince's Case, 5 Co. 30. Lysons v. Barrow, 2 Bing. N. C. 486. See Parham v. Templer, 3 Phillimore, 245. B. N. P. 141. S. N. P. 767, n. Id. B. N. P. 143. Noel v. Wells, 1 Lev. 236.

Swinb. pt. 6, s. 4. Wms. 181. (29 Eng. C. L. 402.) 1 Hodges, 390. Price v. Simpson, Cro. Eliz. 919. ¡ 1 Saund. 275, a.

Commissaries.

bilia.

is the subject of the action did not pass under the grant by reason of the defendant's residence out of the diocese at the time of the death of the testator, that fact must be specially pleaded.a

It may be observed that the rule, which applies to bishops with respect to each other, does not affect the several commissaries of the same bishop among themselves. Their probate in the court of the archdeacon of Sudbury, to whom the bishop granted full power to prove the wills of all persons deceased within the archdeaconry, was held good, the testator having died within the said archdeaconry, although he was possessed of a term of years in lands lying within another archdeaconry in the same diocese; for the appointment of the bishop, as it regarded the power of the commissary to prove wills, armed him with episcopal authority for that purpose. The grant of the power attracted to it all the means by which the power could be exercised. The commissary was bishop for the purpose of proving such wills as he was authorised by the grant to prove.b

*971 *A lease for years of the value of five pounds shall be What are deemed bona notibilia where the land lies and not where the bona nota lease is. So, an annuity for years out of a parsonage shall be deemed bona notibilia where the parsonage is Where a canal was situate in both provinces, but the office for transacting the business of it was in that of Canterbury, the court held that the probate of the will of a shareholder in the province of Canterbury was sufficient, and that a probate in York was unnecessary; and where by a canal act shares were to be deemed personal property, and the canal passed partly through the diocese of Worcester and partly through that of Lichfield and Coventry, the transfers of shares were filed at the office of the company in the latter diocese, where the dividends were also paid and books of account kept; it was held, that for the purposes of probate, the right of a shareholder might be considered as locally situated in the diocese of Lichfield and Coventry, and that a probate granted by the ordinary of that diocese was sufficient.f

Debts owing to the testator are considered bona notabilia as well as goods in possession. Debts by specialty are bona notabilia, not at the place where the testator or intestate dies, but at the place where the securities are at the period of his death. Judgments, statutes or recognisances are bona notabilia at the place where they are acknowledged or record

ed.a

But simple contract debts, such as bills of exchange, are bo na notabilia in that diocese where the debtor resides at the time of the creditor's death."(1)

*SECTION VIII.

OF THE INTEREST WHICH AN EXECUTOR OR ADMINISTRATOR
TAKES IN THE ESTATE OF THE DECEASED.

*972

As the executor derives all his interest from the will itself, The prothe property of the deceased vests in him from the moment of perty

Adams v. Savage, Lord Raym. 855. 1 Saund. 275, n. 3 Dyer, 305, a. in margin. Cegg v. Horton, 1 Lutw. 401. Carlisle v. Greenwood, 7 Mod. 15.

Dyer, 305, in margin. 1 Roll. Ab. Ex. H. Pl. 4. Shaw v. Storton, Freem. 102. Yeomans v. Bradshaw, Carth. 373. Griffith v. Griffith, Say, 83.

(1) (Letters testamentary or of administration in general have no extraterritorial operation, and therefore where granted in one of the United States give no authority to sue or administer assets in another. Glenn v. Smith, 2 Gill & Johns. 493. The foreign executor or adminis trator cannot indorse a note so as to give the indorsce a right to sue in his own name. Stearns v. Burnham, 5 Greenl. 261. Yet where the cause of action has accrued to the foreign executor or administrator after the decease of his testator or intestate, and where he need not suc in his representative character, his action may be inaintained. Barrett v. Barrett, 8 Greenleaf, 346. Robinson v. Crandall, 9 Wend. 425.

It has been held in Pennsylvania that an administrator is not chargeable with assets in another state. Mothland v. Wireman, 3 Penn. R. 185. See Miller's Estate, 3 Rawle 319. Yet in New York he is bound by the decisions to have ancillary administration taken out in the other state, and the assets there collected and administered. Shultz v. Pulou, 11 Wend. 361. 3 Paige, 182.

The administration granted in the place where the deceased had his domicil is the principal administration. That, in any other state, is ancillary or subordinate. Funds are usually collected, and transmitted to the principal administrator for distribution. It is not necessary however that this should be done, as the courts in the country where the property is situated, having jurisdiction over the same, may make the distribution themselves, having regard to the laws of the country where the deceased was domiciled. If debts are due and owing in the country where the subordinate administration is taken out, they will not transmit the funds, or make distribution until those debts are paid; but they will first sce that justice is done to their own citizens, and then either remit or distribute, as circumstances may require. In the case of an insolvent estate, justice requires that all creditors should be treated alike, and not that the creditors in one state should receive the whole amount of their demands, and the creditors in another only a partial dividend. It seems, that where the ancillary administration is solvent, and the principal insolvent, the surplus ought to be transmitted: but that the creditors in the state of the ancillary administration will be allowed to exhaust the funds without reference to their proportions with the others. Fay v. Hunt, 7 Vermont, 170. See some American authorities collected in 2 Wheaton's Selwyn's N. P. (Ed. of 1831,) p. 4 and note A, to which add Brodie v. Bickley, 2 Rawle, 431. Jenison v. Hapgood, 10 Pick. 77. Hunter v. Bryson, 5 Gill & Johns. 483.

Upon the Conflict of Laws generally the student is referred to the late admirable treatise of Judge Story, which has already become a book of reference and authority in Westminster Hall. He cannot fail however to arise from its perusal with a feeling sense of the unsettled state of the law upon this subject, so peculiarly interesting in this country. I think it much to be lamented that questions of this nature have not been referred in some way to the ultimate decision of a superior tribunal, which might speak with the voice of authority to the whole Union, such as the Supreme Court of the United States.)