2. Where he must give justifying Security. Residuary legatees for life taking administration, with the will annexed, called upon to give some security the object being the protection of property belonging ultimately to minors, they gave security to the value of four times the amount of the legacies bequeathed to them. -(Friswell v. Moore. Phill. R. iii. p. 140.)

3. What Representatives of the Residuary Legatees are preferred.

The husband of a substituted residuary legatee entitled to an administration in preference to the husband of the sole executrix and residuary legatee for life, both parties being widowers.-(Wetdrill v. Wright and others. Phill. R. ii. p. 243.)

(e) Pendente Minoritate.

1. Who generally appointed.

The next of kin, whom the Court usually appoints, is the grandfather.-(In the goods of John Ewing. Hagg. R. i. p. 381.)

2. Who appointed under Special Circum

stances.

(a) The Uncle.

Administration, "durante minoritate,” of children in the East Indies decreed to the uncle resident in Ireland, he giving full justifying security--the grandfather, to whom, as next of kin, the grant would naturally pass, being upwards of 80, and also resident in Ireland.-(In the goods of John Ewing. Hagg. R. i. p. 381.)

(b) Testamentary Guardians. 1. When decreed to them.

Administration, cum testamento annexo, decreed to testamentary trustees for the use of the infant executor, and the next of kin, till he should arrive at legal age to take probate. (Hughes v. Richards, by his Guardian. Lee's R. ii. p. 543.)

2. Where Creditor has been preferred to the Guardian of the Minor.

Administration granted to the creditors in preference to a grandmother, who had been appointed guardian to minors; and having renounced administration, had prayed to be re-appointed before the administration passed the seal.—(West & Smith v. Willby. Phill. R. iii. p. 374.)

3. Where others have been preferred to the Guardian of the Minor.

There are instances where the Court has granted to persons, not guardians of minors, the administration, and refused to grant it to the person nominated by them.-(See West and Smith v. Willby. Phill. R. iii. p. 379.

4. How the Court will regard the Choice of Minors.

The choice of minors would have no great

weight with the Court where the eldest is not fourteen: if he was near of age, it would be otherwise.-(By Sir John Nicholl, in West and Smith v. Willby. Phill. R. iii. p. 380.)

5. The discretion of the Court how exercised in selecting and granting Administration to.

When the case is out of the statute, the leaning of the Court is to guide itself by the interest in the property, and it is desirous of granting the administration to that person, who is most likely to dispose of the property to advantage.-(By Sir John Nicholl, in West and Smith v. Willby. Phill. R. iii. p. 380.)

3. Requisites before Grant. Full justifying security must be given.— (In the goods of John Ewing. Hagg. R. i. p. 381.)

4. Requisites before Grant to Minor, when come of age.

Where there has been an administration, pendente minore ætate, and the minor coming of age takes upon herself the administration, she is obliged to give security to the same amount, that the administrator did in the first instance.-(Abbott v. Abbott. Phill. R. ii. p. 578.)

5. When granted to Minor Residuary Legatee.

Administration limited to the receipt of dividends in the English funds, granted to a minor residuary legatee, the wife of a minor, both subjects of, and resident in Portugal, on a certificate being produced, that by the law of Portugal, she was entitled. (In the goods of the Countess Da Cunha. Hagg. R. i. p. 237.)

(f) Pendente Lite.

1. General Rule.

An application for an administration, pendente lite, rejected, because no special cause for granting it, was set forth.-(Sutton v. Smith and others. Lee's R. i. p. 207.)

Not usual to grant an administration, pendente lite, to either of the parties contesting suit, but to some indifferent person.-(Stratton v. Ford and others. Lee's R. ii. p. 49.)

The Courts of Common Law have ceased to object to the grant of administrations, pendente lite, where there is an executor named in the will propounded. Such administrations ought not to be granted without good reason.-(Maskeline and Brohier v. Harrison. Lee's R. ii. p. 258.)

An administration pending suit is never granted upon motion, unless by consent. If the parties are agreed, both that an administration is necessary, and who the administrator shall be, it may be granted on motion. In any other case, an act on petition must be gone into, the necessity for an administration pending suit must be shewn, and the Court must be satisfied as to the fitness of

the proposed administrator, or must be placed in a condition to determine between the two, (its most usual office upon such occasions,) an administrator, that is, being proposed by each party. (By Sir John Nicholl, in Northey v. Cock. Add. R. i. p. 329.)

2. Principles which govern the Court.

(a) Generally.

The Court has been constantly in the habit of refusing to grant administrations, pending suit, merely to take property out of the hands of a litigant party in the actual possession of it. It has always required it to be shewn that the property was in jeopardy, that the party sought to be dispossessed was irresponsible, and refused or neglected to furnish adequate and reasonable security. On the other hand, it has as constantly declined putting a litigant party in possession of the property, by granting administration to him, pending suit; always granting it, where requisite, to a nominee presumed to be indifferent between the contending parties.-(By Sir John Nicholl, in Northey v. Cock. Add. R. i. p. 330.)

An administrator, pendente lite will be appointed-such appointment being necessary from the nature of the deceased's property, and from the conduct of one of the parties in the suit-and the nominee of the other party, on whose conduct there is no imputation, may be selected, if shewn to be impartial, competent, and responsible.--(Young v. Brown. Hagg. R. i. p. 53.)

(b) As to Nominees.

An administration, pendente lite, granted jointly to the nominees of the parties litigant. (Hellier v. Hellier. Lee's R. i. p. 281.)

Objections to an administration, pendente lite, sustained. The nominee should be some person indifferent between the parties, who is a housekeeper and a man of substance, and security should be given in double the value of the estate. (Bond v. Bond. Lee's R. i. p. 354.)

Administration to the estate of an intestate contested by two persons, who each claimed to be his widow,-administration, pendente lite, granted to the nominee of the one, who was living with him at the time of his death, the nominee to lodge the money, as received, in the bank.-(Taylor v. Taylor. Lee's R. i. p. 527.)

(c) Who preferred amongst Nominees, and why.

Administration contested between a son and an asserted wife,-administration, pendente lite, given to the nominee of the son in preference to the nominee of the wife, because his interest was certain, and that of the wife uncertain.-(Bond v. Bond. Lee's R. i. p. 333.)

3. Requisite Security before Grant. In an administration, pendente lite, limited

He is merely an officer of the Court, and holds the property only till the suit terminates. As soon as it is concluded he must pay over all that he has received, in his character of administrator, to the persons pronounced by the Court entitled: his other functions are then completely at an end, and the Court is bound to take care he discharges the duty committed to him, as far as the delivery over of every thing to the proper party. (In the goods of Dame Susanna Graves. Hagg. R. i. p. 315.)

5. His Duties on the termination of Suits. As soon as the suit is concluded, he must pay over all that he has received, in his character of administrator, to the persons pronounced by the Court entitled.-(In the goods of Dame Susanna Graves. Hagg. R. i. p. 315.)

6. How the Court will enforce the duty of Administrator, pendente lite, on termination of Suit by Monition. A monition against an administrator, "pendente lite," will be granted, at the end of a suit, to compel him to transfer to the persons entitled, every thing in his possession acquired in that character. (In the goods of Dame Susanna Graves. Hagg. R. i. p. 313.)

(g) Cum testamento annexo.

1. General Rule.

The executrix of an executor entitled to an administration, cum testamento annexo, in preference to the widow of the original testator. (Thomas v. Baker. Lee's R. i. p. 341.) If the surviving executor decline to take administration, and there is no residuary legatee, the next of kin is entitled to it. If the next of kin decline it, the administration may be granted to a legatee or a creditor; but notice must be given of the application of the legatee or creditor to the next of kin. Phill. -Kooystra v. Buyskes and others. R. iii. p. 531.)

2. Grant contrary to the General Rule.

(a) To Residuary Regatees.

The Treasurer of the Navy refuses to pay arrears of a mariner's wages on the probate of a will granted in Jersey,-a decree issues against executor to accept or refuse administration, cum testamento annexo, in the Prerogative Court,—no appearance being given for him,‚—an administration, cum testamento annexo, was granted to the residuary legatee. -(Le Briton v. Le Quesne. Lee's R. ii. p. 261.)

Where an executor renounces, it is the

practice to grant administration, cum testamento annexo, to the residuary legatee in preference to the executor; but the Court cannot refuse an administration of this description to a person who is both the next of kin and residuary legatee.—(Linthwaite v. Galloway. Lee's R. ii. p. 414.)

The executors having died in the deceased's life time, a joint limited administration, with the will of a married woman under a power annexed, granted to five residuary legatees, to whom a similar grant had been made at York.-(In the goods of Sarah Blakelock. Hagg. R. i. p. 682.)

(b) To the Next of Kin.

1. Where granted to them.

(Thomas v. Evans and others. Lee's R. i. p. 104. Boddicott and Hamilton v. Dalzeel. Lee's R. ii. p. 294.)

2. Where granted to others in preference. Administration with a will (in which was no executor nor residuary legatee) annexed, decreed to two aunts of the deceased, legatees in the will, and daughters of the grandmother-the next of kin, she being ninety years of age, and incapable.-(In the goods of William Hinckrey. Hagg. R. i. p. 477.)

(c) To Persons having the Beneficial Interest.

The ordinary practice, where an executor fails to represent a testator, is to grant administration, with the will annexed, to the residuary legatee, in trust, if any; and failing such residuary legatee in trust, then to grant the same not to his or her representative, but to such person or persons as have the beneficial interest in the residuary estate, under the will.-(Hutchinson v. Lambert and Curling. Add. R. iii. p. 27.)

(d) To Universal Legatees.

Administration, cum testamento annexo, decreed to the universal legatee, she having first proved herself to have been the widow of the testator.-(Cunningham v. Ross. Lee's R. ii. p. 478.)

The Court will grant administration, with the will annexed, to one of two universal legatees, a decree with intimation having been issued in the name of the other, who was since dead. (Law v. Campbell. Hagg. R. i. p. 55.)

The Court at Madras, the competent Jurisdiction, having granted probate to the widow, as universal legatee and constructive executrix of an informal paper, in which character no security is required; this Court considering that, under the circumstances, the widow may be called on to prove the paper, per testes;" or the grant may be appealed from, will only decree administration, with the paper annexed to her, as relict and principal legatee, on giving security.-(In the goods of Lieut.-Colonel Read. Hagg. R, i. p. 474.)

66

surviving Trustee.

Administration decreed to the representative of a surviving trustee in preference to either or both of two other claimants, styling themselves "residuary legatees" simply, but without any violation of the ordinary practice; such other claimants being, in fact, residuary legatees for life only, each in a fifth of the residue: she, the representative of the surving trustee, having also, as such, herself, a beneficial interest in the residuary estate greater than that of either of the other claimants; and the will of the testator plainly excluding the interference, or control, of those other claimants, or either of them, in the general management of the estate.(Hutchinson v. Lambert and Curling. Add. R. iii. p. 27.)

(g) During Lunacy.

1. Of Surviving Executor, and Residuary Legatee in Trust.

Administration with the will annexed may be committed to a residuary legatee, during the lunacy of a surviving executor and residuary legatee in trust, at least by and with the consent (given or implied) of the committee of the lunatic.-(In the goods of James Milnes, Esq. Add. R. iii. p. 55.)

2. Of Executor, and renunciation of other Executor.

On renunciation of a co-executor, the Court will not grant administration with the will annexed, without justifying securities, to the daughter, the residuary legatee, during the lunacy of the mother, the other executor. (In the goods of James Hardstone. Hagg. R. i. p. 487.)

(h) To Creditors.

1. Grant to.

Administration, cum testamento annexo, contested by creditor and by a person who had been joint assignee with the deceased in a bankrupt estate, granted to creditors

upon giving security.-(Snape v. Webb and others. Lee's R. ii. p. 411.)

2. Who among them preferred. Judgment creditor.-(Lord Carpenter v. Shelford and others. Lee's R. ii. p. 502.)

(i) Who cannot interpose.

A person who had been a party to a prior suit, touching the granting an administration, cum testamento annexo, held to be barred from instituting here proceedings for the purpose of claiming the administration as residuary_legatee. (Thomas v. Davis and others. Lee's R. i. p. 170.)

2. Of Next of Kin.

The Court refused to grant administration, cum testamento annexo, to A. B., as the attorney of the Orphan Board at the Cape of Good Hope, acting on behalf of the next of kin, but subsequently granted it to a creditor, the next of kin having been cited by decree on the Royal Exchange. (In the goods of John Reitz. Hagg. R. iii. p. 766.)

(1) Of the Nuncupative Will of a Merchant Seaman.

The Court will grant administration, with the nuncupative will annexed, as contained in an affidavit of three witnesses, holding that the statute 29 Cor. 2, c. 3, s. 23, applies to merchant seamen.-(Morrell v. Morrell. Hagg. R. i. p. 51.)

(m) Where justifying Security will be required.

On renunciation of a co-executor, the Court will not grant administration, with the will annexed, without justifying securities, to the daughter, the residuary legatee, during the lunacy of the mother, the other executor. (In the goods of Jas. Hardstone. Hagg. R. i. p. 487.)

firmed by an affidavit,) that by the French law the next of kin was entitled to the residue, granted the administration to the son, without citing the nude executor, he having never applied for the grant, though the deceased died upwards of thirteen years before. (In the goods of Anne Dormoy. Hagg R. iii. p. 767.)

(0) Revocation of-it having been surreptitiously obtained.

An administration, with the will annexed, obtained after a caveat entered had expired, but without notice to the adverse party, and while the will was in suit in Ireland-the forum domicilii-revoked as surreptitiously obtained, and the party condemned in costs of a petition in support of it.-(Lord Trimlestown v. Lady Trimlestown. Hagg. R. iii. p. 243.)

(h) De bonis non.

1. Discretion of Court.

The Court is not obliged to grant an administration, de bonis non, to the person having the largest interest in the personal property of the intestate. (Cardale v. Harvey and others. Lee's R. i. p. 177.)

Between the widow and the next of kin there are many instances, where the Court has set aside the widow, though the Ordinary generally gives it to the widow. So also between different next of kin, and between several residuary legatees, where the parties stand upon an equality of right, the Court frequently exercises a discretion. But is there any case in which a residuary legatee has been set aside in favour of a mere legatee? If there is no precedent, I should, be unwilling to make one, unless under very extraordinary circumstances.-(By Sir John Nicholl, in Atkinson v. Barnard. Phill. R. ii. p. 317.)

2. General Rule.

Examples.

Residuary legatees, even where there is no prospect of any residue, are entitled to an administration, "de bonis non," in preference to legatees and annuitants.-(Atkinson v. Barnard. Phill. R. ii. p. 316.)

The residuary legatee is the testator's choice; he is the next person in his election to the executors. The practice goes along with that preference. (Ibid. p. 317.)

Administration, "durante minori ætate," formerly granted to the mother, having ceased by minor's death, and the mother having thereby become joint residuary legatee with another minor, administration, "de bonis non," decreed to her; one executor having renounced, and the other who was abroad being cited.--(Akers v. Dupuy. Hagg. R. i. p. 473.)

3. Where granted to Representative Interests—and without citing the Representatives of the Residuary Legatee. Administration, "de bonis non," limited to

a certain legacy granted to the representative of the substituted legatee, without citing the representative of the residuary legatee, resident abroad, but, by practice, entitled to the general "de bonis non" grant; no claim to this legacy having since the death in 1797, of the residuary legatee, (also the executor and legatee for life,) been made by his representative.-(In the goods of MarthaSted

man.

Hagg. R. ii. p. 59.)

Administration, "de bonis non," with a will annexed, granted to a representative interest, entitled to seven-twelfths of the residuary estate, without citing those having a direct interest, as entitled in distribution.-(In the goods of Ann Middleton. Hagg. R. ii. p. 60.)

4. Where granted to a Legatee—and on what Security.

Administration, "de bonis non," with a will annexed, in which was no executor, granted to one of two legatees, a decree with intimation having issued in their joint names against the residuary legatee; the sureties justifying in the amount of the surplus beyond the interest of the one legatee, or (on a proxy of consent from the other) beyond their joint interests, and an affidavit of no outstanding debts being made.-(Pickerings v. Pickering. Hagg. R. i. p. 480.)

5. When granted without renunciation by Person first entitled to the original

Administration.

When after the death of a brother administrator, administration has been revoked, because the mother had not formally renounced, that revocation rescinded on the mother's affidavit, that she was aware of her son's application for the administration, and had under it received her distributive share.― (In the goods of Frederick Stables. R. iii. p. 560.)

6. To assign a Term.

(a) Where revoked.

Hagg.

An administration, " de bonis non," granted in 1827, of an intestate, who died in 1790, limited to assign a leasehold property not severed in the deceased's life-time, and only mortgaged during an original creditor administration (which was granted on the renunciation of the next of kin at the time of the death—and which expired in 1806)— revoked; the next of kin for the time being (in whom all the beneficial interest in the

deceased's estate was vested) not having been cited when the limited grant was made, and there being a suggestion that such grant was surreptitiously obtained, and that there was a surplus belonging to the deceased's estate. -(Skeffington v. White. Hagg. R. ii. p. 626.)

(b) Where not revoked.

Where administration was granted in 1791, on the renunciation of the next of kin to a creditor who died in 1806; when no "de bonis grant" was taken out till March, 1827, and

when an administration limited to certain leasehold property, and granted at that time (without citing the next of kin) to a nominee of the persons in possession of such property, was in February, 1828, called in by the representative of the next of kin; such representative held barred by time and circumstances, and the administrator, who appeared under protest, dismissed with costs. (Skeffington v. White. Hagg. R. i. p. 699.)

(c) When Administration will be granted to assign a Term, instead of enforcing transmission of original Will by Monition.

The Court will not enforce a monition to transmit the original will proved in an inferior jurisdiction, where the deceased died, but will grant a limited administration to assign a satisfied term situate in an other diocese. (Crosley v. the Archdeacon of Sudbury and others. Hagg. R. iii. p. 197.)

(d) What the Court will require previ

ous to the grant.

It is the practice of the office not to receive the renunciation of an executor, &c., without the original will. Hence the Court, when applied to for letters of administration, limited to assign a satisfied term of years to the nominee of the owner of the fee, (in which case, it is not the practice of the office to of the party entitled to administration of the annex the original will,) on the renunciation deceased's effects, with her will annexed, in preference to receiving the renunciation without the original will, (this not being to be had,) decreed the party entitled, to be cited to accept or refuse, &c.; promising to grant the administration to the nominee of the owner of the fee on the other's default. -(In the goods of Martha Fenton, deceased. Add. R. iii. p. 35.)

(e) Power of the Prerogative Court in respect of satisfied Term in another Dio

cese.

The Prerogative Court granted an administration, limited to assign a term in the diocese of A., the will of the deceased, (who had no goods out of the diocese of B., except this satisfied term) having been proved in the Court of B., and the chain of executors being subsequently unbroken.-(In the goods of Mary Powell. Hagg. R. iii. p. 195.)

The Court will not enforce a monition to transmit the original will proved in an inferior jurisdiction, where the decased died, but will grant a limited administration to assign a satisfied term, situate in an other diocese. (Crosley v. the Archdeacon of Sudbury and others. Hagg. R. iii. p. 197.)

(i) Of Husband and Wife—Effects,(drowned together.)

A husband appoints his wife executrix and residuary legatee; he and his wife are drowned at the same time; administration, with the will annexed, granted to the next of kin of the husband. (It was assumed that

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