BOOK II. informs us, that " teftamenti executores effe debent ii, quos tefla"tor ad hoc elegerit, et quibus curam ipfe commiferit : fi vera "teftator nullos ad hoc nominaverit, poffunt propinqui et con "fanguinei ipfius defuncti ad id faciendum fe ingerere.”

BUT if the deceafed died wholly inteftate, without making either will or executors, then general letters of administration must be granted by the ordinary to fuch administrator as the ftatutes of Edward the third and Henry the eighth, before-mentioned, direct. In confequence of which we may obferve; 1. That the ordinary is compellable to grant admi niftration of the goods and chattels of the wife, to the huf band, or his representatives ; and of the husband's effects, h: to the widow, or next of kin ; but he may grant it to either, or both, at his difcretion'. 2. That, among the kindred, thofe are to be preferred that are the nearest in degree to the inteftate; but, of perfons in equal degree, the ordinary may take which he pleases *. 3. That this nearness or propinquity of degree shall be reckoned according to the com putation of the civilians'; and not of the canonifts, which the law of England adopts in the defcent of real estates TM (8): because in the civil computation the inteftate himself is the terminus, a quo the feveral degrees are numbered; and not the common anceftor, according to the rule of the canonifts. And therefore in the firft place the children, or (on failure of children) the parents of the deceased, are entitled to the adminiftration: both which are indeed in the first degree; but with us" the children are allowed the preference. Then

h Cro. Car. 106. Stat. 29 Car. II.

c. 3. 1 P. Wms. 381.

1 Salk. 36. Stra. 532.

* See page 496.

1 Prec. Chanc. 593.

m See pag. 203. 207. 224.

n Godolph. p. 2. c. 34. § 1. 2 Vern.

125.

• In Germany there was a long dif pute whether a man's children should inherit his effects during the life of their grandfather; which depends (as we fhall

(8) See page 224, note 12, where the Editor endeavours to fhew that the canon law computation is of no avail whatever in the defcent of real eftates.

4

505 follow brothers, grandfathers 1, uncles or nephews', (and the females of each clafs refpectively) and lastly cousins. 4. The half blood is admitted to the administration as well as the whole; for they are of the kindred of the intestate, and only excluded from inheritances of land upon feodal reafons. Therefore the brother of the half blood-fhall exclude the uncle of the whole bloods; and the ordinary may grant administration to the fifter of the half, or the brother of the whole blood, at his own difcretion'. 5. If none of the kindred will take out administration, a creditor may, by custom, do it". 6. If the executor refuses, or dies inteftate, the administration may be granted to the refiduary legatee, in exclufion of the next of kin". 7. And, laftly, the ordinary may, in defect of all thefe, commit adminiftration (as he might have done before the statute of Edward III) to fuch difcreet perfon as he approves of: or may grant him letters ad colligendum bona defuncti, which neither makes him executor nor administrator; his only business being to keep the goods in his fafe cuftody, and to do other acts for the benefit of fuch as are entitled to the property of the deceased 2. If a bastard, who has no kindred, being nullius filius, or any one else that has no kindred, dies inteftate, and without wife or child, it hath formerly been held that the ordinary might feife his goods and difpofe of them in pios ufus. But the ufual courfe now is for fome one to procure letters patent, or other authority from the king; and then the ordi

fee hereafter) on the fame principles as the granting of adminiftrations. At laft it was agreed at the diet of Arensberg, about the middle of the tenth century, that the point should be decided by combat. Accordingly, an equal number of champions being chofen on both fides, thofe of the children obtained the victory; and fo the law was established in their favour, that the iffue of a perfon deceased fhall be entitled to his goods and chattels in preference to his pa

a

Book II. nary of courfe grants administration to fuch appointee of the crown (9).

THE intereft, vefted in the executor by the will of the deceased, may be continued and kept alive by the will of the fame executor: fo that the executor of A's executor is to all intents and purposes the executor and representative of A himself; but the executor of A's administrator, or the administrator of A's executor, is not the reprefentative of A*. For the power of an executor is founded upon the fpecial confidence and actual appointment of the deceased; and fuch executor is therefore allowed to tranfmit that power to another, in whom he has equal confidence: but the adminiftrator of A is merely the officer of the ordinary, prefcribed to him by act of parliament, in whom the deceased has repofed no trust at all; and therefore, on the death of that officer, it refults back to the ordinary to appoint another. And, with regard to the adminiftrator of A's executor, he has clearly no privity or relation to A; being only commissioned to adminifter the effects of the inteftate executor, and not of the original teftator. Wherefore in both thefe cafes, and whenever the course of representation from executor to executor is interrupted by any one administration, it is neces fary for the ordinary to commit administration afresh, of the goods of the deceased not administered by the former executor or administrator. And this adminiftrator, de bonis non, is the only legal reprefentative of the deceafed in matters of perfonal property. But he may, as well as an original b3 P. Wms. 33. d Bro, Abr. tit. administrator. 7. e Styl. 225.

Stat. 25 Edw. HI. ft. 5. c. 5. I Leon. 275.

(9) Where a bastard dies inteftate without wife or iffue, the king is entitled to his perfonal property as administrator; but it is ufual for the crown to grant the adminiftration of it to fome relation of the baftard's father or mother, referving one tenth of other small proportion of it. 1 Woodd. 398.

administrator,

administrator, have only a limited or Special administration committed to his care, viz. of certain specific effects, such as a term of years and the like; the rest being committed to others f.

HAVING thus fhewn what is, and who may be, an exe- [ 507 ] cutor or adminiftrator, I proceed now, fifthly and lastly, to inquire into fome few of the principal points of their office and duty. These in general are very much the fame in both executors and administrators; excepting, first, that the executor is bound to perform a will, which an administrator is not, unless where a teftament is annexed to his administration, and then he differs ftill lefs from an executor: and secondly, that an executor may do many acts before he proves the wills (10), but an administrator may do nothing till letters of administration are iffucd; for the former derives his power from the will and not from the probate", the latter owes his entirely to the appointment of the ordinary. If a stranger takes upon him to act as executor, without any just authority (as by intermeddling with the goods of the deceafed3, and many other tranfactions *) he is called in law an executor of his own wrong, de fon tort, and is liable to all the trouble of an executorship, without any of the profits or advantages: but merely doing acts of neceffity or humanity, as locking up the goods, or burying the corps of the deceased, will not amount to fuch an intermeddling, as will charge a man as executor of his own wrong'. Such a one cannot bring an

f 1 Roll. Abr. 9c8. Gudolph. p. 2.

, 30. Salk. 36.

g Wentw. ch. 3.

b Comyns 151.

i5 Rep. 33, 34.

* Wentw. ch.14. Stat. 43 Eliz. c. 8.
! Dyer. 166.

(10) He may commence an action, but he cannot declare in the ation, before probate; for when he declares, he must produce in court the letters teftamentary. And he may releafe or pay a debt; may affent to a legacy, and be fued before probate; and do other acts, which feem to be fully enumerated in 1 Salk. 299, and Com. Dig. Almin. B. 3.

BOOK II. action himself in right of the deceased ", but actions may be brought against him. And, in all actions by creditors, against such an officious intruder, he shall be named an executor, generally"; for the moft obvious conclufion, which ftrangers can form from his conduct, is that he hath a will of the deceased, wherein he is named executor, but hath not yet taken probate thereof. He is chargeable with the debts of the deceased, fo far as affets come to his hands P: and, as against creditors in general, fhall be allowed all payments made to any other creditor in the fame or a superior degree, 508 ] himself only excepted. And though, as against the rightful executor or administrator, he cannot plead fuch payment, yet it shall be allowed him in mitigation of damages; unlefs perhaps upon a deficiency of affets, whereby the rightful executor may be prevented from fatisfying his own debt (11). But let us now fee what are the power and duty of a rightful executor or administrator.

1. HE must bury the deceased in a manner fuitable to the eftate which he leaves behind him. Neceffary funeral expenfes are allowed, previous to all other debts and charges; but if the executor or administrator. be extravagant, it is a fpecies of devaftation or waste of the fubftance of the deceased, and fhall only be prejudicial to himself, and not to the credi tors or legatees of the deceased ".

(11) It is held, that the leaft intermeddling with the effects of the inteftate, even milking cows, or taking a dog, will constitute an executor de fon tort. Dy. 166. An executor of his own wrong will be liable to an action, unless he has delivered over the goods of the inteftate to the rightful administrator before the action is brought against him. And he cannot retain the inteftate's property in difcharge of his own debt, although it is a debt of a fuperior degree. 3 T. R.590. 2 T. R. 100.