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good debts to the value of five pounds, in any other diocese or peculiar jurisdiction, within the same province, the "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."

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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."

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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, 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.

(2) "It seems, that this canon has changed the law, if that were otherwise before, inasmuch as the granting of 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." Rolle's Abr. 909. Executors, (I.) pl. 5. But see the preceding 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. "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

141.

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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 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 ex

c Veere v. Jeofferies, Moor, 145. Ned-
ham's case, 8 Rep. 135. a. S.P. agreed.
d 1 Rol. Abr. 909. (H) pl. 1.
e 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.

f Lunn v. Dodson, post.
g Byron v. Byron, Cro. Eliz. (472).

h Lunn v. Dodson, adjudged in an

action brought by administrator in London, supposing the obligation to be there made, and shewed 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.

dioceses within the province of Canterbury,) "if this had been an administration granted by the archdeacon or ordinary, where there 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 shew the probate."

change', &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.

By stat. 55 Geo. 3. c. 184. s. 37. "Persóns administering "personal estates, without obtaining probate or letters of ad"ministration within six calendar months after the death,

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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 1007., and "10 per cent. on the duty."

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i Yeomans v. Bradshaw, Carth. 373, 4. 1 Griffith v. Griffith, Say. R. 83. k 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. GrifEth, Say. R. $3, where this mistake is noticed by Lee, C. J.

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).

The executors" more actually represent the person of the testator, than the heir does the person of the ancestor; for if a man bind himself, his executors are bound though they are not named; but the heir is not bound, unless he be expressly named.

Executors may release°, or take a release, before probate (6), if they prove afterwards. So executors may commence an action before probate, and it is sufficient if at the time of declaring they produce in court the letters testamentary (7).

a. b.

m 1 Inst. 209. a.
n 1 lust. 292. b.

o 1 Inst. 209. a.

p 1 Rol. Abr. 917. (A) pl. 1. Plowd.

281. a. S. P.

q 1 Rol. Abr. 297. (A) pl. 2.

(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.

(6) Before probate and before any seizure, the law adjudges the property of the goods of the testator in the executors. Hence if any person takes the goods of the testator before the executors have seized them, the executors shall have an action of trespass* or replevin; by Walsh, J. and Dyer, C. J. Plowd. 281. a. So if a man die possessed of goods, and a stranger takes and converts them to his own use, and afterwards administration is granted to J. S.; this administration shall relate to the death of the testator, so that J. S. may maintain trover for the conversion before administration granted to him. 2 Roll. Abr. 399. (A) pl. 1.

(7) So where an executor, before probate, files a bill in a court of equity, and afterward proves the will, such subsequent probate

* 2 Inst. 398.

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Each executor has the entire controul of the personal estate of the testator, may release, or pay a debt, or transfer any part of the testator's property, without the concurrence of the other executor'. And it seems, that the same rule holds with respect to administrators' (8).

If two have a lease for years as executors, and one sells the whole, this shall bind the other; and the whole shall pass; for each had the entire power of disposing of the whole, both being possessed in the right of their testator*.

So if one dispose of all the goods of the testator without the other".

As an executor is not entitled in his own right, but in auter droit, to the property of the deceased, the goods of

r Per Sir J. Strange, M. R. 2 Ves. 267.
s Willand v. Fenn, see note (8).
t Paunel v. Fenn, 1 Rol. Abr. 924. (0)
pl. 1. Gouldsb. 185. S. C.

u Dyer, 23. b. in marg.
x 2 Inst. 236.

makes the will good. Per Talbot, C. 3 P. Wms. 351. So where plaintiffs, after bill filed, took out letters of administration, and charged the same by way of amendment to the bill, having obtained an order for such amendment, it was holden good; for the letters of administration, when granted, relate to the time of the death of the intestate. Humphreys v. Humphreys, 3 P. Wms. 351.

(8) In Willand v. Fenn, E. 11 G. 2. B. R. MSS. a question arose, whether the release of one administrator would bind his companion? The case was argued in E. 11 G. 2. when the court, entertaining doubts, directed a second argument. The second argument was heard Trin. 11 & 12 G. 2. when Lee, C. J. expressed a strong opinion in favour of the affirmative, observing, that it was extremely difficult to form a distinction between executors and administrators upon any reasonable foundation; and that although it had not ever been determined at law, that the administration survived, yet having been so determined in equity, in Adams v. Buckland, 2 Vern. 514. and by Lord Talbot in the case of Hudson v. Hudson, he thought those authorities were so strong, that they ought not to be departed from. The other judges were inclined to the same opinion, but as the case was new, and, of general consequence, they ordered it to be argued again. According to Sir J. Strange, M. R. in Jacomb v. Harwood, 2 Ves. 267. the case was decided in the affirmative after the third argument; but, from a MS. note in my possession, it appears to have been compromised before the third argument took place. In Mr. J. Gundry's MS. note, 13 Gundr. 256. it is said to have been adjudged for defendant; that is, that the release of one administrator did bind his companion.

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