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with us(n) the children are allowed the preference(o). Then follow brothers (p), grandfathers (9), uncles or nephews (r), (and the females of each class respectively), and lastly cousins. 4. The half blood is admitted to the administration as well as the whole; for they are of the kindred of the intestate, and only excluded from inheritances of land upon feodal reasons (36). Therefore the brother of the half blood shall exclude the uncle of the whole blood (s); and the ordinary may grant administration to the sister of the half, or the brother of the whole blood, at his own discretion (t). 5. If none of the kindred will take out administration, a creditor may, by custom, do it (u). 6. If the executor refuses, or dies intestate, the administration may be granted to the residuary legatee, in exclusion of the next of kin (w). 7. And, lastly, the ordinary may, in defect of all these, commit administration (as he might have done (x) before the statute of Edward III.) to such discreet person as he approves of: or may grant him letters ad colligendum bona defuncti, which neither makes him executor nor administrator; his only business being to keep the goods in his safe custody (y), and to do other acts for the benefit of such as are entitled to the property of the deceased (2). If a bastard, who has no kindred, being nullius filius, or any

(n) Godolph. p. 2, c. 34, s. 1. 2 Vern. the law was established in their favour, 125.

that the issue of a person deceased shall (c) In Germany there was a long be entitled to his goods and chattels in dispute whether a man's children preference to his parents. (Mod. Un. should inherit his effects during the life Hist. xxix. 28). of their grandfather; which depends (p) Harris in Nov. 118, c. 2. (as we shall see hereafter) on the same (9) Prec. Chan. 527. 1 P. Wms. 41. principles as the granting of adminis- (r) Atk. 455. trations. At last it was agreed at the (s) 1 Ventr. 425. diet of Arensberg, about the middle of (t) Aleyn, 36. Styl. 74. the tenth century, that the point should (u) Salk. 38. be decided by combat. Accordingly, (w) 1 Sid. 281. 1 Ventr. 219. an equal number of champions being (x) Plowd. 278. chosen on both sides, those of the (y) Wentw. ch. 14. children obtained the victory, and so (2) 2 Inst. 398.

(36) See, ante, the sixth section of chap. 14, pp. 224, 234, with the notes thereto.

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his decease de

one else that has no kindred, dies intestate, and without
wife or child, it hath formerly been held (a) that the ordi-
nary might seize his goods and dispose of them in pios usus.
But the usual course now is for some one to procure

*patent, or other authority from the king (37); and then the [ * 506 ]
ordinary of course grants administration to such appointee
of the crown (6).

The interest vested in the executor by the will of the The interest in deceased, may be continued and kept alive by the will of effects vested in the same executor: so that the executor of A.'s executor is his executor, at to all intents and purposes the executor and representative volves to his exof A. himself (c); but the executor of A.'s administrator, or ecutors i bbutz in the administrator of A.'s executor, is not the representative cease of an adof A. (d). For the power of an executor is founded upon fresh administhe special confidence and actual appointment of the de- tration must be

ceased; and such executor is therefore allowed to transmit
that power to another, in whom he has equal confidence ;
but the administrator of A. is merely the officer of the ordi-
nary, prescribed to him by act of parliament, in whom the
deceased has reposed no trust at all: and therefore, on the
death of that officer, it results back to the ordinary to ap-
point another. And, with regard to the administrator of
A.'s executor, he has clearly no privity or relation to A.;
being only commissioned to administer the effects of the
intestate executor, and not of the original testator. Where-
fore, in both these cases, and whenever the course of repre-
sentation from executor to executor is interrupted by any
one administration, it is necessary for the ordinary to com-
mit administration afresh, of the goods of the deceased not

nistered by the former executor or administrator. And

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(a) Salk. 37.
(6) 3 P. Wms. 33.
(c) Stat. 25 Edw. III. st. 5, c. 5.

1 Leon. 275.

(d) Bro. Abr. tit. Administrator, 7.
(e) Styl. 225.

(37) Mr. Wooddeson (in his 15th tenth, or other small proportion, of the Vin. Lect.), observes, that, in such cases, value, both of real and personal property. it is usual for the crown to reserve one

this administrator de bonis non, is the only legal represen-
tative of the deceased in matters of personal property (e).
But he may, as well as an original administrator, have only
a limited or special administration committed to his care,

viz. of certain specific effects, such as a term of years, and
[ 507 ] the like; the rest being committed to others (f).
of the office and *Having thus shewn what is, and who may be, an executor
duties of execu-
tors and admin- or administrator, I proceed now, fifthly and lastly, to

inquire into some few of the principal points of their office
and duty. These in general are very much the same in both
executors and administrators; excepting, first, that the exe-
cutor is bound to perform a will, which an administrator is
not, unless where a testament is annexed to his administra-
tion, and then he differs still less from an executor: and
secondly, that an executor may do many acts before he
proves the will (g) (38), but an administrator may do
nothing (39) till letters of administration are issued; for the

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(38) Before he proves the will, he phreys v. Humphreys, 3 P. Wms. 351). may lawfully perform most acts inci- (39) A person who takes upon himdent to the office; (Wankford v. Wank- self to interfere with the effects of a ford, 1 Salk. 301); he does not derive party deceased, or, at all events, to dishis title under the probate, but under pose thereof, or apply them to his own the will; the probate is only evidence use, will, by such interference, constiof his right: Smith v. Milles, 1 T. R. tute himself an executor de son tort, as 480): it is true, that, in order to assert stated in the text; (and see Edwards v. completely his claims in a court of jus Harben, 2 T. R. 597); but Lord Hardtice, he must produce the copy of the wicke held, that, although a person enwill, certified under the seal of the or- titled to administration could not, before dinary; but it is not necessary he administration actually granted to him, should be in possession of this evidence commence an action at law, (see the of his right at the time he commences last note, as to an executor who has an action at law, as executor; it will be not obtained probate), he might be in due time, if he obtain it before he allowed to file a bill in equity, as addeclares in such action: (see the last ministrator, and that such bill would note): so, if he file a bill in equity, in be sustained by an administration subthe same character, a probate obtained sequently taken out. (Fell v. Lutwidge, at any time be the hearing of the Barnard, Ch. Rep. 320; S. C. 2 Atk. causę, will sustain the suit. (Ilum- 120).

former derives his power from the will and not from the
probate (h), the latter owes his entirely to the appointment
of the ordinary. If a stranger takes upon him to act as
executor, without any just authority (as by intermeddling
with the goods of the deceased (i), and many other trans-
actions (k)), he is called in law an executor of his own
wrong, de son tort(40), and is liable to all the trouble of an
executorship, without any of the profits or advantages : but
merely doing acts of necessity or humanity, as locking up
the goods, or burying the corpse of the deceased, will not
amount to such an intermeddling as will charge a man as
executor of his own wrong (1). Such a one cannot bring an
action himself in right of the deceased (m) (41), but actions
may be brought against him. And, in all actions by cre-
ditors against such an officious intruder, he shall be named
an executor, generally (n); for the most obvious conclusion
which strangers can form from his conduct, is, that he hath
a will of the deceased, wherein he is named executor, but
hath not yet taken probate thereof (0). He is chargeable
with the debts of the deceased, so far as assets come to his
hands (p): and, as against creditors in general, shall be
allowed all payments made to any other creditor in the same
or a superior degree (1), *himself only excepted (r).' And [ * 508 )

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(40) Whether a man has or has not ters of administration is opposed in the
rendered himself liable to be treated as ecclesiastical court, and does any acts
an executor de son tort, is not a question pendente lite to make himself executor
to be left to a jury; but is a conclusion de son tort, those acts will be purged
of law, to be drawn by the court before by his afterwards obtaining letters of
which that question is raised. (Padget administration. (Curtis v. Vernon, 3
v. Priest, 2 T. R. 99).

T. R. 590).
(41) But, if a person entitled to let-


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though, as against the rightful executor or administrator, he cannot plead such payment, yet it shall be allowed him in mitigation of damages (s); unless, perhaps, upon a deficiency of assets, whereby the rightful executor may be prevented from satisfying his own debt (t) t. But let us now see what are the power and duty of a rightful executor or

administrator. 1. The burial of 1. He must bury the deceased in a manner suitable to the the deceased, in estate which he leaves behind him. Necessary funeral exa suitable man

penses are allowed, previous to all other debts and charges; but if the executor or administrator be extravagant, it is a species of devastation or waste of the substance of the deceased, and shall only be prejudicial to himself, and not to

the creditors or legatees of the deceased (u). 2. The proof of 2. The executor, or the administrator durante minore ætathe will, or the

te, or durante absentia, or cum testamento annexo, must taking out of letters of admin- prove the will of the deceased: which is done either in comistration.

mon form, which is only upon his own oath before the ordinary, or his surrogate; or per testes, in more solemn form of law, in case the validity of the will be disputed (w). When the will is so proved, the original must be deposited in the registry of the ordinary; and a copy thereof in parchment is made out under the seal of the ordinary, and delivered to the executor or administrator, together with a certificate of its having been proved before him: all which together is usually stiled the probate. In defect of any will, (s) 12 Mod. 441, 471.

26, s. 2. (t) Wentw. ch. 14.

(w) Godolph. p. 1, c. 20, s. 4. (u) Salk. 196. Godolph. p. 2, c.

+ Mr. Christian observes, that “it to the rightful administrator before the is held, that the least intermeddling with action is brought against him. And the effects of the intestate, even milk- he cannot retain the intestate's proing cows, or taking a dog, will consti- perty in discharge of his own debt, tute an executor de son tort. (Dy. 166). although it is a debt of a superior deAn executor of his own wrong will be gree. (3 T. R. 590.2 T. R. 100)." liable to an action, unless he has de- --[See post, p. 511.-Ed.] livered over the goods of the intestate

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