ISTED v. STANLEY. 1580. [Reported Dyer, 372 a, pl. 8.] WHERE the executor dies before the proving of the will, his executor cannot take upon himself the execution of the first will; but administration of the goods of the first testator, with the will annexed to it, is to be committed to the executor of the executor, if the residue of the goods of the first testator (the legacies performed) were bequeathed by his last will to the first executor; or to such other person or persons to whom the said residue is bequeathed; otherwise to the next of blood to the first testator, demanding it. And this (ex relatione Doctoris Drury, judge of the Prerogative Court of Canterbury) is the usage and custom of the said court, and agreeable to law (as seemed to him); to which the court gave credit. TRESPASS. It was found by verdict, that Sir Ralph Rowlet being possessed of a term, did make his will, and thereof did make Bacon the Lord Keeper, Catlin Chief-Justice, and others, his executors, and devised the term to Lord Catlin, and died. All the executors writ a letter to Dr. Dale, judge of the Prerogative Court, that they could not attend the execution of the will, and desired him to commit the administration to Henry Goodyer, the next of kin to the testator; and the administration was accordingly granted: but the register entered the cause, for that the executors did defer suscipere onus testamenti. After this, Catlin entered upon the land devised to him, and granted it over. The doubt was, If this grant was good? First, if the letter be a sufficient renunciation? Secondly, If they once refuse, if they, after administration granted, may administer at their pleasure? Dr. Ford declared to the justices, that by the civil law, a renouncing may be as well by matter in fact as by a judicial act, and they may refuse by parol; and cited a rule in the civil law, Non vult esse hæres, qui ad alium vult transferre hæreditatem; and, Hæreditas est totum jus quod defunctus habuit. And to the second matter he said, Qui semel repudiaverit hæreditatem, amplius hæreditatem petere non potest; and, Qui semel repudiaverit shall not after be executor, quia transit in contractum; and that executors cannot refuse for one time, but forever; but they may pray time to advise of taking upon them the executorship, and it ought to be granted; and in that case the ordinary is to grant in the mean time letters ad colligendum, &c., but is not to grant administration. And for these reasons there being a refusal, the grant made after administration committed, was void; and so was the opinion of the court. WICKENDEN v. THOMAS. COMMON PLEAS. 1611. [Reported 2 Brownl. 58.] THE case was this: Two executors were jointly made in a will; one of them releases a debt due to the testator, and after, before the ordinary, refuses to administer; and it was agreed by all the justices that the release was administration, and for that he hath made his election, and then the refusal comes too late, and so is void. B. DEVISES a legacy to C., and makes D. his executor, and dies; D. makes E., an infant, his executor, and dies, and administration is committed to F. durante minore ætate of E. C., the legatee, sues F. in the spiritual court for his legacy; and F. moves for a prohibition: but the court denied it; for although an administrator of an executor is not an administrator to the first testator, yet an administrator durante minore ætate is loco executoris, and may be sued, as the executor of an executor may.1 PARTEN v. BASEDEN. COMMON PLEAS. 1676. [Reported 1 Mod. 213.] PARTEN brought an action of debt, in this court, against the testator of Baseden, the now defendant; and had judgment; after whose death, there was a devastavit returned against the defendant, Baseden, his 1 Contra, Limmer v. Every, Cro. El. 211, as cited by Lord C. B. Gilbert in Bac. Ab. Executors, (B) 1 [2 vol. p. 381, 5th edit.]; but that case hardly supports him ; and in Leonard's report of the same case under the name of Limver v. Evorie, 4 Leon. 58, it is said only that such an administrator should sue as administrator of the first testator. s. c. cited Godolphin's Orph. Leg. p. 89; and see Norton v. Molineux, Hob. 246. - SMIRKE'S NOTE. executor: he appeared to it, and pleaded; and a special verdict was found to this effect: The defendant, Baseden, was made executor by his will, and dwelt in the same house in which the testator lived and died; and before probate of the will he possessed himself of the goods of the testator, prized them, inventoried them, and sold part of them, and paid a debt, and converted the value of the residue to his own use; afterwards, before the ordinary, he refused, and upon his refusal, administration was committed to the widow of the deceased. The question was, Whether or no the defendant should be charged to the value of the whole personal estate, or only for as much as he converted? Barrell, Serjt., for the plaintiff. THE COURT was of opinion, that the committing of administration, in this case, is a mere void act. A great inconvenience would ensue, if men were allowed to administer as far as they would themselves, and then to set up a beggarly administrator; they would pay themselves their own debts, and deliver the residue of the estate to one that is worth nothing, and cheat the rest of the creditors. If an administrator bring an action, it is a good plea to say, That the executor made by the will has administered. Accordingly judgment was given for the plaintiff.1 GOODS OF THORNTON. PREROGATIVE COURT OF CANTERBURY. 1826. WILLIAM THORNTON, the party deceased in this cause, died in the year 1822; having made his will, and thereof appointed George Dodd and Charles Parsons, executors. In the month of October, 1822, administration, with the will annexed, issued to Margaret Thornton, 1 "THE LORD CHANCELLOR (REDESDALE] observed, that some of these old cases could scarcely be supported on principle; they were decided whilst a great jealousy of the ecclesiastical court prevailed. That the meaning of the modern determinations was, that an administration granted after an executor having acted in pais might be repealed by an application to the ecclesiastical court; not that it was a mere nullity, unless as a protection to the executor. That it was true, an executor having acted, could not discharge himself from liability by such an administration being granted to another but that a debtor to the fund could not in answer to a suit by such administrator, set up the act in pais of the executor against his renunciation, in order to delay or prevent a recovery by the administrator. That the administration was void, only as a protection to the executor, but in no other sense." - Doyle v. Blake, 2 Sch. & L. 231, 237 (1804). In Doyle v. Blake, ubi sup., and Rogers v. Frank, Y. & J. 409 (1827), it was held that an executor who had intermeddled with the estate, and had afterwards renounced, was liable to the legatees in equity as executor. On what constitutes intermeddling, see Long v. Symes, 3 Hag. Ecc. 771 (1832). widow, as the residuary legatee for life named in the will, on the renunciation of the said executors; and she was lately dead, leaving effects of the deceased unadministered. Mr. Parsons, one of the executors, upon this, retracted his renunciation; and the court was now moved by counsel, to admit this retractation, and to decree probate of the will of the deceased to Mr. Parsons, as one of his executors. In support of the motion it was submitted, that an executor, after a renunciation, and probate or administration granted, had still a right to probate whenever a vacancy occurred in the representation of the deceased. After a probate granted, this was said to be recognized by the practice of the office, which was in the constant habit of permitting one of several executors who had renounced, after the death of his co-executors who had proved the will, to retract that renunciation, and to take probate, as a matter of course. It was now contended, on the authority of a passage in Mr. Toller's Law of Executors (vol. 1, c. 3 § 1), that the same right accrued to an executor, after administration, with a will annexed, granted, although the office, it was said, had objected to this, on the ground of the possible inconvenience that might accrue, in other quarters, from chains of executorship once broken, being thus suffered to revive. Should this deceased, for instance, it was objected by the office, have been the surviving executor of other testators, and should administrations have been granted of their effects, on the renunciation of his executors, if the chain of executorship were to revive, as now proposed, there would be double and conflicting representations of such testators; the one by grant of administration, as above; the other, by the revived chain of executorship. THE COURT was of opinion, upon this state of facts, that the objection raised by the office was a valid objection and there being, so far as appeared, no instance of, or precedent for, a grant of this description in the office, declined acceding to the motion. It was then prayed, that administration with the will annexed might issue to Mr. Parsons, the executor; by which means the objection raised by the office would be obviated. This would preclude, it was said, a revived chain of executorship, and, consequently, the occurrence of the inconvenience suggested by the office; and still give the representation to the executor, who was submitted to be entitled to it. But, PER CURIAM, Parsons is not the residuary legatee the wife was residuary legatee for life only; and there is no residuary legatee substituted. Under these circumstances, as the next of kin are before the court, praying the administration, they have, clearly, I think, a preferable title to it. Motion refused. GOODS OF PERRY. PREROGATIVE COURT OF CANTERBURY. 1840. [Reported 2 Curt. 655.] THIS was an application on behalf of the executor of an executor, to be allowed to renounce the probate of the will of the first testator, before taking probate of the will of the second testator. According to the ordinary practice of the office, the executor of an executor becomes, on taking probate of his will, the executor of the first testator. Nicholl, in support of the motion. SIR HERBERT JENNER. It has been for many years the practice in this court, that an executor, taking probate of the will of an executor, becomes executor of the will of the first testator, and is not permitted to renounce pròbate of the first will, and take probate of the second. I am not aware of any instance of departure from this rule, and unless there be some clear principle or authority, the general rule of practice must be observed.1 Motion rejected. STOKES brought an action of debt on bond against Porter as executor of the will of one H. Wyrral; the defendant pleaded ne unques executor, ne unques administer come executor, &c. The plaintiff averred that he administered as executor divers goods of the said H. W. &c., upon which issue was joined, and the jury found this special verdict, viz."that the said H. W. at the time of his death was possessed of 1 “There may, perhaps, be no case which expressly decides that an executor of a testator cannot renounce the executorship of other persons of whom his testator may have been executor, but I can remember that when I was at the bar the question was often raised, and the notion was always scouted. The principle is very plain that a person cannot accept one part of the duties of an executor, and refuse the rest. And if no case has been reported, it must be because every one thought the point too clear to be worth reporting." Per LORD ROMILLY, M. R., in Brooke v. Haymes, L. R. 6 Eq. 25, 30 (1868). Cf. Hayton v. Wolfe, Cro. Jac. 614 (1621); 1 Wms. Exec. (8th ed.) 280. |