Reports of Cases Argued and Determined in the English Ecclesiastical Courts: Haggard's reports, v.1 and Fergusson's Scottish consistorial reports

Semble, that the guardian of a minor instituting a suit cannot be condemned in the costs incurred, after a proxy has been exhibited, for the party then become of full age.

In the Goods of MARY ALICIA GILL.-p. 341.

On Motion.

Probate of a will of a feme-covert (supposed, at the time of the grant, to have been sole,) revoked; and administration granted to her next of kin, the husband having died after her. The administration of a feme-covert's goods left unadministered by the husband, having been held, in several cases, to belong, under the 31 Edw. III. st. 1. c. 11. and 21 Hen. VIII. c. 5, to the next of kin of the wife at the time of her death, though the right to the property is in the representatives of the husband.

MARY ALICIA GILL was the party deceased: she died in the lifetime of her husband, John Gill, from whom she had lived apart for many years. On her death, a probate of a paper, purporting to be her will, was taken in this Court in the month of March, 1813, by William Cooper-the sole executor therein named-on the supposition that she had died a widow.

Dodson now prayed that the probate should be revoked, as the paper was executed during coverture, and was therefore null; and applied for administration to be granted to Alice Ainsworth, widow-the lawful mother of the deceased, she having left no children, nor father.

Per Curiam.

The practice of granting these administrations to the representatives of the wife, when the beneficial interest in the property belongs to the representatives of the husband (a) is very inconvenient, and in defiance of all principle. Notwithstanding the statutes (b) require that administration shall be granted to the next of kin, it has been solemnly decided that the residuary legatee is entitled, and it has always since been the constant practice so to grant it (c). In that and every other instance but the present, the right to administration follows the right to the property; but in a case said to have been argued here by Lord Mansfield (d), then

(a) By the 29 Car. 2. c. 3. s. 25. it is declared, that the statute of distribution (22 & 23 Car. 2. c. 10) shall not extend to the estates of femes-coverts that shall die intestate, but that their husbands shall have administration of their personal estate, and enjoy the same as they might have done before the act. Vide Wilson v. Drake. 2 Mod. 20. notis.

(b) 31 Edw. 3. st. 1. c. 11. 21 Hen. 8. c. 5.

(d) The printed reasons for the appellants-written by Mr. Hargrave, as junior counsel for Dr. Bouchier, in the case of Bouchier v. Taylor, on an appeal from the Court of Chancery to the House of Lords-asserted it to be settled, that soon after the statute of distribution, the right to administration, which exists at the death of the intestate, is transmissible—and that the representatives of that person, who was the next of kin, have the same right to it as such person, if living, would himself have. Lord Mansfield, in delivering his reasons against the decree of Lord Chancellor Northington (which was reversed) denied this position, and observed:

"That he remembered arguing a case before Dr. Lee as Judge of the Prerogative Court, in which, after great consideration, the latter held the right to

at the bar, as also in a case before the High Court of Delegates, 1748, it was ruled that the Court was bound, by the statutes, to grant the administration to one of those persons who were next of kin of the wife at the time of her death (a): but if the persons, who at that time were her next of kin, die before the grant of administration, it has always been held that the Court may exercise its discretion.

I have directed the cases to be looked up, as I feel inclined, if the point should hereafter come before me, in a contested form, to send it up for the decision of the Court of Delegates, in order that the question may there be deliberately reconsidered.

In the present instance, I shall allow the administration to pass, a proxy of consent from the representative of the husband-who is a party to the proceedings in Chancery-being first exhibited. Motion granted.

administration not to be transmissible as above described, but to be grantable to the next of kin for the time being." On this Mr. Hargrave remarks—

"A case to the same effect, before the High Court of Delegates, was cited in Chancery by Lord Mansfield when Solicitor-General; and Lord Hardwicke allowed the practice of the Ecclesiastical Court to be so settled as to administration, though he decreed for a distribution in favour of a husband's representatives on the principle of transmissibility from him as the person entitled to administration at the time of his wife's decease. Elliot v. Collier, 1 Wilson, 168. 1 Ves. sen. 15. 3 Atk. 526. These authorities are certainly entitled to very great respect. But, on the other hand, there are cases according to which the right of administering ought to follow the right of the estate. In one case Sir Joseph Jekyll, master of the rolls, is represented to say, that this point had been so solemnly determined by the spiritual Court, Bacon v. Bryant, East. vac. 1729, in 11 Vin. Abr. 88. The same doctrine is asserted by the reporter in 1 P. Wms. 382, and by Lord Macclesfield in Cha. Prec. 567, and by Lord King in a case in 11 Vin. Abr. 87, pl. 24. The practice also of granting administration to the residuary legatee, in preference to the next of kin, seems to be an additional authority on the same side; for it proceeds on the idea that the statutes, requiring administration to be granted to the next of kin, were made with a view to their benefit, and, therefore, become inapplicable when the next of kin cannot, in any event, be entitled to the surplus of the estate to be administered. See further (Rex v. Dr. Bettesworth), 2 Str. 1111." Hargrave's Law Tracts, 4to. p. 475.

Sir George Lee was Dean of the Arches and Judge of the Prerogative Court of Canterbury, from January 1752, to December 1756; he was knighted upon succeeding to those appointments; and the Editor has been unable to discover any trace of such a case as that described by Mr. Hargrave to have been argued by Lord Mansfield during that period; he is inclined to think that a confusion has arisen between the names of Sir George Lee and Dr. Bettesworth, who was his immediate predecessor in the same offices; for in the case of Elliot v. Collier, 1 Wils. 169, there is the following passage:-" Quære, the case of Hole and Dolman at Doctors' Commons in Michaelmas term, 1736, cited by the SolicitorGeneral, who said he was of Counsel in it, and that it was therein determined by the Judge and all the doctors (not in the cause), that the husband's right of administration to his wife is not transmissible to his representative, but that it goes to the next of kin of the wife."

Elliot v. Collier was argued in 1747, and, at that time, Lord Mansfield was Solicitor-General. The foregoing statement from Wilson is confirmed by the following entries, respecting the case of Hole v. Dolman, extracted from the assignation book of the Court of Arches:

On the by-day after Trinity Term, 1736, Common Lawyers were directed to be heard, at the petition of both Proctors.

On the fifth session of Michaelmas Term, 1st December, 1736, the Proctors, on both sides, corrected sentences. The Judge having heard the Advocates and Proctors on both sides, and the opinions of the rest of the Advocates present, read the sentence, &c. &c. &c. &c.

(a) Kinleside v. Cleaver, vide infra, p. 150.

Semble, that the guardian of a minor instituting a suit cannot be condemned in the costs incurred, after a proxy has been exhibited, for the party then become of full age.

In the Goods of MARY ALICIA GILL.—p. 341.

On Motion.

Per Curiam.

(b) 31 Edw. 3. st. 1. c. 11. 21 Hen. 8. c. 5.

(d) The printed reasons for the appellants-written by Mr. Hargrave, as junior counsel for Dr. Bouchier, in the case of Bouchier v. Taylor, on an appeal from the Court of Chancery to the House of Lords-asserted it to be settled, that soon after the statute of distribution, the right to administration, which exists at the death of the intestate, is transmissible-and that the representatives of that person, who was the next of kin, have the same right to it as such person, if living, would himself have. Lord Mansfield, in delivering his reasons against the decree of Lord Chancellor Northington (which was reversed) denied this position, and observed:

"That he remembered arguing a case before Dr. Lee as Judge of the Prerogative Court, in which, after great consideration, the latter held the right to

In the present instance, I shall allow the administration to pass, a proxy of consent from the representative of the husband-who is a party to the proceedings in Chancery-being first exhibited.

Motion granted.

administration not to be transmissible as above described, but to be grantable to the next of kin for the time being." On this Mr. Hargrave remarks

On the by-day after Trinity Term, 1736, Common Lawyers were directed to be heard, at the petition of both Proctors.

(a) Kinleside v. Cleaver, vide infra, p. 150.

The following cases, upon this point, decided at different times, have been communicated to the Editor from the manuscript collections of the late Dr. Swabey, and from the notes of Dr. Arnold.

WELLINGTON otherwise HOLE v. DOLMAN.-p. S44.

An Appeal from Exeter.

Per Curiam (Dr. Bettesworth).

THE COURT revoked the administration, granted by the Court below to the Reverend Robert Dolman, executor of Jeffrey Follett, late of Northam, in the county of Devon, of the goods of Margaret Wellington, otherwise Follett, late wife of the said Jeffrey Follett, and administratrix with the will annexed of the goods, chattels, and credits of Peter Wellington, late of Biddeford, left unadministered by the said Margaret Wellington; and decreed administration to Rebecca Wellington, otherwise Hole, wife of Henry Hole-the sister and next of kin of the said Margaret Wellington otherwise Follett.

KINLESIDE v. CLEAVER.—p. 345.

MARY KINLESDE, formerly Galton, died intestate in April, 1744: administration was granted by the Prerogative Court of Canterbury to William Kinleside the husband-who, having made his will, and appointed his son sole executor, died; probate of this will was granted to the son by the Prerogative Court of Canterbury, and administration was prayed of Mary Kinleside's effects, left unadministered by her husband, to be committed to him as his executor. A proctor exhibited for Mary Cleaver-wife of William Cleaver-and alleged her to be the daughter -only child, and only next of kin of Mary Kinleside, formerly Galton, and prayed the de bonis grant to her.

On the fourth Session of Michaelmas Term, 1745, Dr. Bettesworth, Judge of the Prerogative Court of Canterbury, decreed the administration, de bonis non, to the daughter and next of kin of the wife.

On the 1st of July, 1748, this decree was affirmed by the High Court of Delegates, with 5l. nomine expensarum(a).

(a) The Judges who sat under this commission were:

Sir Martin Wright, K. B.

Sir Thomas Birch, C. B.

Dr. Walker,

Dr. Simpson,

Dr. Pinfold,
Dr. Chapman.
Dr. Collier.

WALTON v. JACOBSON.-p. 346.

THE question was-whether an administration, de bonis, should go to the representative of the husband, or to the next of kin of the wife.

« Önceki Devam »

Kitaplar

Reports of Cases Argued and Determined in the English Ecclesiastical Courts ...