testament, without entering into a minute discussion of intestacy, which would be somewhat foreign to this subject, and therefore shall be reserved for a subsequent part of the work; it being our present design to show how the law disposes of a person's estate in case he dies wholly intestate, and not to point out the various kinds of intestacy. — It is called a will, says Wentworth, when there is an executor appointed; and when there is none, it is termed a testament. So there may be a will where there is no testament, and a testament where there is no will. And where a testament is made without an executor being named, this testament is to be adhered to as a guide to the administrator in disposing of the estate, in the same manner as where one or more executors are named, and they refuse to act d. SECTION II. Of Administration: Why it should be obtained; and who are entitled thereto. An administrator cannot act before letters of administration are granted to him; he not being like an executor, who may do many acts before he proves the will; but an administrator may do nothing till letters of administration are issued (1). When letters of administration are issued, e c See post. d Went. Off. Exec. 2. e 2 Black. Com. 507. (1) There is a manifest distinction between the case of an administrator and an executor. An administrator derives his title from the Ecclesiastical Court. He has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant. An executor, on the other hand, derives his title from the will itself, and the property vests in him from the moment of the testator's death. See Woolley v. Clark, 5 Barn. & Ald., 745. the person deputed by the ordinary, that is, he who grants the letters of administration, to administer the intestate's goods, shall have an action to demand and recover, as executor, the debts due to the intestate f. If the deceased die wholly intestate, without making either will or testament, then general letters of administration must be granted by the ordinary to such administrator as the statutes of 31 Edw. III. c. 11. and 21 Hen. VIII. c. 5. direct; and in consequence of which the ordinary is compellable to grant administration of the goods and chattels of the wife to the husband, or his representatives, that is, his executors or administrators, who, if the husband die before administration taken, will be entitled in equity, and not the wife's next of kin h. And that the administration of the wife's goods of right appertaineth to her husband, is confirmed by statute of 29 Car. II. c. 3. which enacteth that the statute of the 22 & 23 Car. II. c. 10. (commonly called the Statute of Distributions) shall not extend to the estates of femes-covert that shall die intestate; but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same i (2). But if the wife was executrix to f Stat. 31 Edw. III. c. 11. 2 Black. Com. 504. h Cro. Car. 106. 1 P. Will. 381. 3 Atk. 526. i The husband has seldom occasion for taking administration on the death of his wife, unless it is to recover something that appertained to the wife, which she was not possessed of during the marriage; for immediately on marriage all the chattels personal she is possessed of vest in her husband, and her chattels real he may make his own if he will. This being the case with respect to the wife's chattels, in order to preserve the same, as well as any real estate she may be possessed of, from misfortunes that may happen to the husband by bankruptcy or otherwise, a settlement is usually made. (2) In a case which lately came under the consideration of the Prerogative Court, a person claimed administration of the effects of the deceased in the character of her husband; but the nullity of the marriage being established in consequence of her mental incapacity, the court pronounced against the interest of the asserted husband. Browning v. testament, without entering into a minute discussion of intestacy, which would be somewhat foreign to this subject, and therefore shall be reserved for a subsequent part of the work; it being our present design to show how the law disposes of a person's estate in case he dies wholly intestate, and not to point out the various kinds of intestacy. - It is called a will, says Wentworth, when there is an executor appointed; and when there is none, it is termed a testament. So there may be a will where there is no testament, and a testament where there is no will. And where a testament is made without an executor being named, this testament is to be adhered to as a guide to the administrator in disposing of the estate, in the same manner as where one or more executors are named, and they refuse to act a. SECTION II. Of Administration: Why it should be obtained; and who are entitled thereto. AN administrator cannot act before letters of administration are granted to him; he not being like an executor, who may do many acts before he proves the will; but an administrator may do nothing till letters of administration are issued (1). When letters of administration are issued, e 2 Black. Com. 507. e c See post. d Went. Off. Exec. 2. (1) There is a manifest distinction between the case of an administrator and an executor. An administrator derives his title from the Ecclesiastical Court. He has none until the letters of administration are granted, and the property of the deceased vests in him only from the time of the grant. An executor, on the other hand, derives his title from the will itself, and the property vests in him from the moment of the testator's death. See Woolley v. Clark, 5 Barn. & Ald., 745. the person deputed by the ordinary, that is, he who grants the letters of administration, to administer the intestate's goods, shall have an action to demand and recover, as executor, the debts due to the intestate f. If the deceased die wholly intestate, without making either will or testament, then general letters of administration must be granted by the ordinary to such administrator as the statutes of 31 Edw. III. c. 11. and 21 Hen. VIII. c. 5. direct; and in consequence of which the ordinary is com pellable to grant administration of the goods and chattels of the wife to the husband, or his representatives, that is, his executors or administrators, who, if the husband die before administration taken, will be entitled in equity, and not the wife's next of kin h. And that the administration of the wife's goods of right appertaineth to her husband, is confirmed by statute of 29 Car. II. c. 3. which enacteth that the statute of the 22 & 23 Car. II. c. 10. (commonly called the Statute of Distributions) shall not extend to the estates of femes-covert that shall die intestate; but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same i (2). But if the wife was executrix to f Stat. 31 Edw. III. c. 11. 2 Black. Com. 504. h Cro. Car. 106. 1 P. Will. 381. 3 Atk. 526. i The husband has seldom occasion for taking administration on the death of his wife, unless it is to recover something that appertained to the wife, which she was not possessed of during the marriage; for immediately on marriage all the chattels personal she is possessed of vest in her husband, and her chattels real he may make his own if he will. This being the case with respect to the wife's chattels, in order to preserve the same, as well as any real estate she may be possessed of, from misfortunes that may happen to the husband by bankruptcy or otherwise, a settlement is usually made. (2) In a case which lately came under the consideration of the Prerogative Court, a person claimed administration of the effects of the deceased in the character of her husband; but the nullity of the marriage being established in consequence of her mental incapacity, the court pronounced against the interest of the asserted husband. Browning v. another; then as to the goods which she had in that capacity, administration must be granted to the testator's next of kink. By the statutes of Edward the Third and Henry the Eighth, before mentioned, the ordinary is compellable to grant administration of the husband's effects to the widow, or next of kin. But he may grant it to both, or either, at his discretion. For, it being moved for a mandamus TM to the official of the bishop of Gloucester, to commit administration to the widow of an intestate, the court observed, that would be to deprive the ordinary of his election, in granting it to her, or the next of kin; and therefore ordered the mandamus to be taken generally, to grant administration of the goods of the intestate ".-The ordinary may grant administration, either jointly or separately (3); * 3 Salk. 21. 2 Black. Com. 496. 504. Mandamus is a writ whereby a command issues in the king's name, from the court of King's Bench, directed to any person, corporation, or inferior court of judicature, within the king's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty. And this writ may be obtained for an infinite number of other purposes. It is grounded on a suggestion by the oath of the party injured of his own right and the denial of justice. 3 Black. Com. 110. The matter for which this writ is obtained must be laid before the court. 3 New Abr. 528. And as the matter must be laid before the court, it must be in term time, when the court is sitting. The manner of laying it before the court is by counsel, who moves the court on the oath of the injured party; which oath is delivered to him in writing, with his instructions, as previously drawn up by an attorney. n Str. 552. Keane, 2 Phillim. Rep. 69. And the marital right of the husband, as administrator at law, is excluded by a limitation in a settlement to the next of kin of the wife. Bailey v. Wright, 18 Ves. 49., S. C. on appeal, 1 Swanst. 39. (3) Although it is in the breast of the Ecclesiastical Court, where there is a community of persons equally entitled, either to grant a joint or a separate administration; yet cæteris paribus, it prefers a sole to a joint administration, because it is infinitely better for the estate. For as administrators must join and be joined in every act, a joint administration would not only be inconvenient to them 14 |