238.

To this decree an appearance, under protest, was given for Mr. White; and on the by-day after Trinity term, 1828, the cause having been argued on the statements contained in the act on petition, and on the affidavits, the Court rejected the petition of Sir Lumley Skeffington, and condemned him in costs. (a)

From this sentence an appeal was prosecuted to the High Court of Delegates; and after the usual formal steps the cause came on for argument at Serjeant's Inn, before the whole Commission, consisting of Mr. Justice Bayley, Mr. Baron Garrow, Dr. Daubeny, Dr. Blake, and Dr. Pickard.

Dodson, Haggard, and Mr. Knight, for the respondents.

Lushington, Addams, and Mr. Preston, for the appellant.

The Court pronounced for the appeal, directed a monition to issue to call in the limited administration; and condemned the respondent in

costs.

title deeds as aforesaid: and lastly, that he has been legally advised, that the said administration of the unadministered effects of Thomas Hubbert deceased, should be granted to a nominee of the deponent, and the aforesaid other parties, by reason that such grant of administration to them or either of them, might operate in law as a merger of the aforesaid leases, and be thereby rendered of no effect."

Joseph Jones, of Bermondsey Wall, made oath:—"That in 1796, he entered into the employment of Thomas Rowcroft, then a London merchant, and he continued in such employment until 1818; that when he so entered into the said service he, Rowcroft, was in the possession and occupation of certain premises and warehouses situate in Cherry Garden, Bermondsey, and deponent was employed to superintend and take care of the same, and which hereditaments and premises are, as deponent verily believes, the same concerning which an application is now making to this court for administration of the unadministered effects of Thomas Hubbert, to be granted under certain limitations, as to the interest which he, the deceased, had in the same: that Rowcroft continued in possession of, and had the sole and exclusive management and control of the said hereditaments and premises, and, as deponent believes, was in possession of certain leases therein granted, and also in the sole receipt of the rents and profits thereof from 1796 to 1818; and during the whole of that period, paid all rates, taxes, assessments, and outgoings whatsoever chargeable thereupon, and until the said premises were in the latter year conveyed by Rowcroft to Davis, A. Jordaine, B. Shaw, Sir C. Flower, and J. Green." (a) Skeffington v. White, Vol. I. 699. [3 Eng. Eccl. Rep. 297.]

WESTMEATH v. WESTMEATH.-p. 653.

The Court will pronounce an Irish Peer in contempt for non-payment of costs, and direct such contempt to be signified, leaving the Lord Chancellor to decide whether the writ de contumace capiendo should issue.

192.

FREE, D. D. v. BURGOYNE.—p. 662.

A clergyman may be deprived for fornication without previous monition or suspension. Sentence of deprivation affirmed with costs. (a)

(a) O. J. by Burgoyne v. Free, D. D. supra, 192.

SAVAGE v. BLYTHE.-p. 150.

The stat. 21 Hen. 8. c. 5. applies only to such as are next of kin at the time of the death. Therefore the Court made the de bonis non grant to the executor of the administrator (the sole next of kin at the death) in preference to persons entitled in distribution, who had received their shares and signed releases.

ABRAHAM COCKER died intestate, leaving a brother and several nephews and nieces. Administration was granted to the brother; and at the end of the year he distributed, taking the deceased's securities upon himself. The administrator died, leaving the securities due to the original deceased outstanding: he made a will, and appointed an execu

tor.

A decree was taken out against the nephews to show cause, why the administration de bonis non should not be granted to the executor of the brother administrator. The nephews appeared, and prayed administration.

Sir William Scott and Dr. Nicholl for the executor.

The question is, whether the executor of the administrator or the next of kin is entitled to the administration de bonis non. It was necessary to cite the next of kin, though they have received their shares, executed releases, and thus discharged their interest. The Court is inclined. in such grants to follow the interest, and give the handle to the person who has the interest. It would not, unless compelled by law, give the grant to persons without any interest. The 21 Hen. 8, c. 5, enacting that, on the death of an intestate, the administration is to be decreed to the next of kin, does not apply: it has been complied with: the administration was so granted in the first instance. The Court is not to go on in infinitum. Where a party has parted with all his interest in the effects, he has no right to the administration. Young v. Pierce, Freeman, 496. Great danger and inconvenience would ensue, if persons were permitted to come into the management of the estate who have no interest, and who would have only to pay over to those entitled. This is the principle of the ordinary practice of granting administration with will annexed to the residuary legatee, though against the words of the statute, Isted v. Stanley, Dyer, 372.

Dr. Swabey, contra. Though the parties have released their interest, they have not renounced their right to the administration. In Young v. Pierce there was an agreement that the other party should take administration. In Isted v. Stanley the point decided was, that an executor of an executor, dying before probate, was not executor to the original testator, though entitled to administration if the residue was bequeathed to his testator; it is true, it was stated that though there were next of kin it was the course of office to grant administration to the residuary legatee, which was (the reporter says) allowed to be law. The question is, whether the 31 Edw. 3. and 21 Hen. 8. are obligatory on the Court. The Court is only ministerial: the statutes leave it no discretionary power. The practice of the Court inclines to the person having the beneficial interest, as in the case of a residuary legatee, and where the option is left to the Court; but it has only such a discretionary power when the parties are in equal degree, or between a widow and next of kin who are equally entitled. It has no further discretion. The statute is as obligatory on the second grant as on the first. In Prior v. Moss (Prerogative, 1772, April 10) Moss died intestate. The mother of the intestate died without taking administration, and made Prior executor. The uncle of the deceased took out administration. Prior, the executor, called it in as having all the interest under the will. The Court (Dr. Bettesworth) held it well granted to the next of kin to the intestate." In Elliot v. Collier, 3 Atk. 526, 1 Ves. Sen. 17, 1 Wils. 168, Lord Hardwicke held the husband entitled to the interest without the administration.

so.

Per Curiam (Sir WILLIAM WYNNE.)

I understand the rule of the office to be, to grant administration to those who are next of kin at the time of the death: but, where a representation has been taken out and another is wanted, the course of the office is to make the grant to the interest and not to persons who were not next of kin at the time of the death, but who have since become Such is laid down by Sir Edward Simpson to be the rule of office, infra, 229. In the case of Young v. Pierce, an administration was granted by the Prerogative and Delegates to the interest, viz. to the executor of one next of kin, in exclusion even of another who was also next of kin at the intestate's death, but who had released her interest. Here the parties were not next of kin at the death, for they are nephews and nieces, and there was a brother. I conceive that, such being the case, they are not entitled to this administration: for the statute looks to the next of kin at the time of the death, not to the next of kin when a second grant is wanted, and the Court will grant the administration to the representative of the original administrator in preference to a person who, by the death of intermediate persons, becomes the next of kin when the second administration is wanted. Lovegrove v. Lewis, before the Delegates, was a case of this kind. (a) The question is not, whether the same rule applies to administrations de bonis non as to original administrations; but whether the statute does not apply only to such as were next of kin at the death. But, in order to look more fully into the cases, let the matter stand over.

On the by-day, the cause came on again.

Dr. Swabey cited Hole v. Dolman, infra, 237; Kinleside v. Cleaver, infra, 237; Walton v. Jacobson, Vol. I. 346, [3 Eng. Eccl. Rep. 150] and Whitehill v. Phelps, (Prerogative, 1711, E. T. 2 Sess.) "Whitehill died intestate, leaving a widow and no children. The widow took administration and made her son executor. He prayed administration de bonis non to the husband. This was opposed by the mother of the husband. Administration de bonis non was granted to her, though according to the custom of London, the widow had the right of distribution.” The case cited from Freeman the reporter thinks contrary to law. Unless Lovegrove v. Lewis (of which case I was not aware on the former day) had occurred, the cases to which I have referred would have been decisive. That case has established a distinct principle; the only distinction from the present case is that here the parties were originally in distribution, but they have released their interest.

Sir William Scott and Dr. Nicholl, contra.

(a) Lovegrove v. Lewis and Lewis. (Prerog. 1772, Trin. Term, 2d Session.)—John Bidleston died in November 1761, a widower, intestate, leaving two sons-the only persons entitled in distribution. John Bidleston, one of the sons, took out administration to his father in 1761. Thomas, the other son, died in 1762 intestate, leaving his brother John his only next of kin. John, the administrator, by his will, dated 13th September 1763, appointed Lovegrove his sole executor. The validity of that will being contested, it was pronounced for by the Prerogative Court and by the Delegates. Lovegrove was sworn administrator of Bidleston, the father. John and Richard Lewis opposed the grant on the ground that they were the cousins-german, and then next of kin of John Bidleston, the father, and, as such, asserted their right to the administration de bonis non. It was alleged that they had no interest in the effects. Sir George Hay decreed letters of administration de bonis non of John Bidleston, the father, to be granted to Lovegrove, the executor and residuary legatee of John Bidleston, the son and administrator. And this sentence was, on the 29th of April, 1773, affirmed with costs, by the Court of Delegates. The Judges present were:-Aston J. Blackstone J. Macham, and Loveday, LL.D.

The question is, whether the other party has a statutable right, and whether the Court is consequently bound. It turns on the construction of the statute-on the words'"next of kin." We apprehend they mean the next of kin at the time of the death. Great inconvenience would result if the Court did not attend to this limitation, but extended the term to all the branches to whom it may be derived. To say that any one can acquire the relation of "next of kin" to a person, after that person is actually dead, would be absurd. The term must only mean those who are so at the time of the death. No person, therefore, having a statutable right, the Court will grant it, in its discretion, to the interest.

Per Curiam.

Abraham Cocker, the deceased, died intestate, a bachelor without parent, leaving a brother and seven nephews and nieces; the brother took administration; he died, leaving goods unadministered, and, having appointed Savage his executor; the representative of the brother and administrator applies for administration de bonis non; this is opposed by the nephews and nieces, who claim it under the statute. The brother,

at the death of the intestate, was the sole next of kin and solely entitled to the administration. The nephews and nieces were then entitled in distribution, but not to the administration. The only question is, whether the nephew, who had no right to the administration at the death, is now entitled by devolution on the death of the brother.

It is argued, that it has been held that it ought to be granted to the next of kin at the time of the grant. This is founded on several cases, deciding that the administration to the wife is not grantable to the representative of the husband but to the next of kin of the wife. By the ancient practice, on the death of the husband administrator, the Court granted the administration prius petenti-to the kin of the husband or of the wife. Hole v. Dolman, infra, 237, determined, that it was grantable in preference to the wife's kin and not to the representative of the husband: after which two other cases were decided, viz. Kinleside v. Cleaver, infra, 237, and Walton v. Jacobson, vol. i. 346. [3 Eng. Eccl. Rep. 150.] But this case does not fall within the principle there decided; for, in those cases, the kin were next at the death, the husband not being considered as kin but having a claim in a distinct character; and therefore the Court held that the wife's next of kin in those cases had an absolute statutable right, on which they granted it. Such also is the case where the administration is granted to the widow; she does not take it as next of kin.

The question then is, whether the grant is to be made to the representative of the person who took as next of kin, or to those who have become next of kin at the time of asking for the grant. By the practice of the office the statutable right is confined only to the kin at the time of the death; afterwards to grant it to their representatives. So in a note of Sir Edward Simpson, in which, adverting to the case of Hole v. Dolman, that learned Judge says:-"The rule there seems to mean only to the next of kin at the death of the deceased, not to whom may happen afterwards to be next of kin at the time a question arises upon the grant of administration; for a dead man can have no next of kin; he is not in a capacity to have next of kin at the time he becomes so. Therefore, by the course of office, it is granted to the interest, when the next of kin at the time of the death is not living at the grant of ad

ministration de bonis non; except in the case of next of kin of wife and representative of the husband-then granted to the next of kin. Undoubtedly by the statute, the grant of administration to next of kin is good; but when the next of kin, who were so at death of deceased, are dead, then it is in the heart of the Court to grant it to the next of kin or the interest, and the grant does not depend on the statute but the rules of the Court-may grant it to next of kin, may grant it to interest, without regard to greater or less interest, according to the circumstances." In exact affirmance of that principle was the judgment of Sir George Hay, in Lovegrove v. Lewis, supra, 228. notis, which was affirmed by the Delegates with costs. There it could not be denied that the cousins were the next of kin at the time of the grant, yet Sir George Hay and the Delegates decreed it to the interest. In this case the nephews were not next of kin at the death, though in distribution; but the greater interest at the death was in the brother, and therefore his representatives have the greater interest. Not only so; it is stated that payment was made to the nephews and nieces in full satisfaction of their distributive shares, and that they gave releases; so that they have now no interest as appears on the face of the releases. But it is said that they protest against the effect of their releases, and against any use to be made of them; and it is argued that they may apply to some Court to determine on their validity: it is not, however, suggested that they were improperly obtained, nor that any proceedings are going on to invalidate them. Though the Court has no right to try the validity of these releases, yet it must take notice of them as it does of marriagearticles allowing a wife to make a will, which, being upon the face valid and their validity not appearing to be contested, the Court grants probate. By the same plea that the effect of these releases is sought to be avoided, a husband might always avoid his wife's will. I am of opinion that the nephews have no statutable right as they were not next of kin at the time of the death. The course of office in that case is to grant the administration to the superior interest, viz. in this case, to the representative of the administrator, who would take half; and the interest of the others is released. Under the circumstances the interest is so clearly in the executor of the deceased administrator, that I shall grant the administration de bonis non to him.

ALMES v. ALMES.-p. 155.

Where the Court is not bound by the statute of 21 Hen. 8. c. 5, it always grants the administration to those who have the interest. Administration de bonis non granted to a person, entitled under a deed of gift from the first administratrix to the whole beneficial interest, in preference to one who was not next of kin at the time of the death, and who consequently had no statutable right.

Sir William Scott and Dr. Nicholl, for Elizabeth Almes, relied on the recent decision in Savage v. Blythe. (a)

It was contended, contra, that by taking out a decree calling on the son to accept or refuse the administration, the other party had waived their own right; at least that the son should be indemnified for his

costs.

(a) See preceding case.