CHAP. XIX.

EXECUTORS AND ADMINISTRATORS.

I. Of Bona Notabilia.

II. Of the Nature of the Interest of an Executor or Administrator in the Estate of the Deceased. In what

Cases it is transmissible; and where an Administra-
tion de bonis non is necessary.

III. Of limited or temporary Administrations.
IV. Of an Executor de son Tort.

V. Of the Disposition of the Estate of the Deceased; and of the Order in which such Disposition ought to

be made.

VI. Of Admission of Assets.

VII. Of Actions by Executors and Administrators.
VIII. Of Actions against Executors and Administrators.
IX. Of the Pleadings; and herein of the Right of Re-
tainer-Evidence-Costs-Judgment.

I. Of Bona Notabilia.

BY the 92d canon, (1) "If a testator or intestate dies in one diocese, and has, at the time of his death, goods or good debts to the value of five pounds, in any other diocese or peculiar jurisdiction, within the same province, the

(1) This and the following will be found among the canons made by the clergy in a convocation, holden in the first year of the reign of King James the First, A. D. 1603. They received the royal assent, but were not confirmed by parliament. Hence it was holden in Middleton v. Crofts, Str. 1056, that the canons of 1603 did not proprio vigore bind the laity.

probate of the will, or granting letters of administration, belongs to the prerogative court of the archbishop of that province; and every probate or administration not so granted, is declared void; with this proviso, that if any man die in itinere, the goods he has about him at that time shall not cause his will or administration to be liable to the prerogative court."

And by the 93d canon, "goods in different dioceses, unless of the value of five pounds, shall not be accounted bona notabilia (2);" with this proviso," that this shall not prejudice those dioceses, where, by custom or composition, bona notabilia are rated at a greater sum."

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 Canterbury", and two of York, there must be two prerogative administrations.

It appears from the 92d canon, before stated, that if an ordinary of a diocese commits administration, when the party has bona notabilia in different dioceses within the same provinces, such administration is merely void; and it was so decided according to Moor, 145. in 19 Eliz. (3).

a Burston v. Ridley, Salk. 39. b Per Cur. ib.

c See Stokes v. Bate, 5 B. and C. 491. and post p. 760.

(2) "It seems, that this canon has changed the law, if that were otherwise before, inasmuch as the granting administration belongs to the ecclesiastical law, and our law only takes notice of their law in this; and therefore they may alter it at their pleasure." 1 Rolle's Abr. 909. Executors, (1.) pl. 5. But see the preceeding note.

(3) The name of the case is not mentioned in Moor; but there is a case in 2 Leon. 155. by the name of Dunne's case of this year, and on this point; from which it appears, that the court were divided in opinion. But Sir Edward Coke, in 5 Rep. 30. a. lays down the position agreeably with the decision mentioned in Moore; and Holt, C. J. in Blackborough v. Davis, Salk. 38. 1 P. Wms. 43. S. C. speaking of an administration granted to a wrong person, says, "It is not void, as where administration is granted in a wrong diocese, but only voidable." So Weston, Baron, in Bull. N. P. 141. "Where administration is granted in a wrong diocese it is void: where to a wrong person voidable." So per Lord Macclesfield, Ch. in Comber's case, 1 P. Wms. 767, 768. (where a question arose upon the validity of a probate granted by the archdeacon of Surrey, the testator having died possessed of bona notabilia in two dioceses within the province of Canterbury,) "if this had been an administration granted by the archdeacon or ordinary, where there

But where A. had goods only in one inferior diocese, and the metropolitan of the same province, pretending that he had bona notabilia in several dioceses, granted administration; it was adjudged, that the administration was only voidable by sentence, and the reason assigned for this in 5 Rep. 29 b. (where this case is cited) is, that the metropolitan has jurisdiction over all the dioceses within his province.

Goods of the value of five pounds in one diocese, and a lease for years of the same value in another diocese of the same province, though a chattel real, make bona notabilia, and require a prerogative administration.

Judgments are bona notabilia at the place where they are recorded.

Debts by specialty are bona notabilia not at the place where the securities were made, nor where the testator or intestate died, but at the place where the securities are at the death of the testator or intestate.

Hence if a man becomes bound in an obligation in London', and dies intestate in Devon, and there hath the obligation at the time of his death, administration ought to be granted by the Bishop of Exon, where the obligation was at

d Veere v. Jeofferies, Moor, 145. Ned- i Lunn v. Dodson, adjudged in an ham's case, 8 Rep. 135. a. S. P. agreed. e 1 Rol. Abr. 909. (H) pl. 1. f Adams v. Savage, Ld. Raym. 855. agreed in Gold v. Strode, Carth. 149. Boon v. Hayman, E. 6. G. 2. B. R. MSS. S. P. Anon. 8 Mod.244.

g Lunn v. Dodson, post.

h Byron v. Byron, Čro. Eliz. (472).

action brought by administrator in London, supposing the obligation to be there made, and showed the administration to be granted, by bishop of Exeter; and on demurrer to declaration, judgment for plaintiff. Affirmed on error, M. 15 Car. 1 Rol. Abr. 908. (G) pl. 4.

were bona notabilia in divers dioceses, the administration had been merely void; for the administrator receives his right entirely from the administration; but the right of the executor is derived from the will, and not the probate, as appears from an executor's having power to release or assign any part of the personal estate before probate; and a defendant at law cannot plead to any action brought by an executor, that the plaintiff has not proved the will, though it is true he may demur, if the plaintiff does not in his declaration show the probate." 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 archdeaconry; although he was possessed of a term of years in lands lying within another archdeaconry in the same diocese. R. v. Yonge, 5 Maule and Selwyn, 119.

his death, and not by the Bishop of London, where the obligation was made: for the debt shall be accounted goods as to the granting the administration, where the deed was at his death, and not where it was made.

But simple contract debts, as debts due on bills of exchange, &c. follow the person of the debtor, and the will must be proved, or administration granted in that place where the debtor resided, at the time of the death of the testator or intestate.

In indebitatus assumpsit by an administrator', for goods sold and delivered by the intestate, on an administration committed by the Archdeacon of Berkshire, the defendant pleaded in bar, that he, the defendant, at the time of the death of the intestate, was an inhabitant and resiant in the city of Oxford, which was within the diocese of Oxford, and that the archdeaconry and whole county of Berks were within the diocese of Salisbury. On special demurrer, because it did not appear that the defendant was not an inhabitant within the diocese of Salisbury, the court overruled the demurrer, and adjudged the plea to be good (4).

In debt by an administrator", it appeared that the letters of administration were granted by the Bishop of Bristol. Plea, that the plaintiff's intestate died on the high sea out of the jurisdiction of the Bishop of Bristol, and that therefore the letters of administration were void. On demurrer, it was holden, that the letters of administration were good; for the right of granting them is not founded upon the dying of an intestate within a diocese, but upon his leaving goods therein.

k Yeoman v. Bradshaw, Carth. 373, 4. m Griffith v. Griffith, Say. R. 83. 1 Hillyard v. Cox, Salk. 37.

(4) There is evidently a mistake in Salkeld's report of this case* the pleadings are stated in the text as they appeared on the record, a copy of which will be found at the end of Salkeld's Reports, p. 747. See also this case ex relatione M'ri Jacob, Ld. Raym. 562. where it is said, that Northey took exception to the plea, because the defendant did not traverse his residence in Berks within the peculiar. Holt, C. J. "If the debtor has two houses, in several dioceses, and at the time of the death of the debtee and commission of administration, is inhabitant and resident at one of the houses, that will exclude the jurisdiction of the ordinary of the diocese, in which the other house stood." Judgment for defendant.

* See Griffith v. Griffith, Say. R. 63. where this mistake is noticed by Lee, C. J.

In assumpsit by an administratrix upon a promissory note, given to her intestate, it was averred in the declaration, that administration of all and singular the goods and chattels of the intestate was duly granted by the Bishop of Chester. Plea, that the plaintiff never had been nor was administratrix, &c.; and issue being joined thereon, letters of administration granted by the Bishop of C. were produced by plaintiff; but it was also proved, that the intestate at the time of his death had bona notabilia in another diocese in a different province, and no evidence was given as to the residence of the defendant at the death of the intestate; it was holden", 1st, that the letters of administration were not void, inasmuch as the other diocese in which the intestate had bona notabilia was in a different province; and secondly, that the only question raised upon the issue was, whether the letters of administration were duly granted by the Bishop of C. and that it was no part of the issue, whether the defendant, at the death of the intestate, resided within the diocese of C. The fact of his residence elsewhere, if relied upon, ought to have been pleaded specially.

By stat. 55 Geo. 3. c. 184. s. 37. "Persons administering personal estates, without obtaining probate or letters of adminstration within six calendar months after the death, or within two calendar months after termination of suit, if there be any, which shall not be ended within four calendar months after the death, shall forfeit the sum of 100%, and 10 per cent. on the duty.'

19

II. Of the Nature of the Interest of an Executor or Administrator in the Estate of the Deceased-In what Cases it is transmissible; and where an Administration de bonis non is necessary.

EXECUTORS or administrators so entirely represent the personal estate of the testator or intestate, that they are liable to the payment of all debts, covenants, &c. of the deceased, as far as the assets which have come to their hands will extend to pay (5).

n Stokes v. Bate, 5 B. and C. 491.

o 1 Inst. 209. a. b.

(5) "It is a maxim and principle, that an executor, where no default is in him, shall not be bound to pay more for his testator than his goods amount unto." Went. Off. Exe. c. 12.