a devastavit, which he might safely do, to sue out execution immediately by writ of fieri facias de bonis propriis. But if the sheriff returned nulla bona merely, then by a scire fieri inquiry, upon which the defendant was called on to show cause why execution should not be levied de bonis propriis, and on which he could not show a deficiency of assets, execution de bonis propriis might be awarded. Subject to some limitations, legal personal representatives are subject to the London Mayor's Court custom of foreign attachment.1 1 Comyn's Digest, Attachment D. CHAPTER XIV. ADMINISTRATION SUITS. THE Court of Chancery early assumed jurisdiction over the administration of the estates of deceased persons and encouraged suits brought for the purpose of procuring such administration to be done by the Court. In virtue of that jurisdiction it entertained bills against the legal personal representatives of deceased persons calling upon them to account and to discover assets, as well as bills by creditors for payment of debts, and bills by persons interested as beneficiaries in the disposition of the estate for payment of their legacies or shares. This jurisdiction was also used to defeat the legal preferences for certain classes of creditors, and sometimes for hindering creditors, payment to whom it was desired to delay. Administration actions are sometimes, notwithstanding their expense, brought for the last purpose even at the present day. Administration actions are by the Judicature Acts assigned to the Chancery Division. Where an administration action is begun by a creditor, he sues generally on behalf of himself and all the other creditors for an account of the assets and for the due administration of the estate. The commencement of such an action does not paralyse the process of administration by the legal personal representative, or prevent other creditors from beginning similar or other actions; for until a decree is made by the Court the plaintiff may, and upon being offered his debt and costs must, discontinue the action. So that until a decree for administration there may be several actions for the administration of the estate of the deceased pending, but when a decree has been obtained on any of them, the Court will stay proceedings upon the other actions, except that the Court may allow any of them which seek further relief than the decree already obtained affords, to proceed,1 or the later action may be stayed on the defendant in the former action undertaking not to object to any additions which the judge at chambers may think reasonable.2 The litigant who gets the decree first should apply to stay the other actions in order to save expense. It If in an administration action by a creditor the legal personal representatives admit the plaintiff's debt and admit assets, the Court will order payment of the plaintiff's claim forthwith. is no objection to the plaintiff's claim that his debt is not yet due and payable. But it seems that a person who has merely a share in a debt due by the deceased cannot found an administration action upon his own claim merely, although perhaps he can if he alleges himself to sue on behalf of all the other persons interested in the debt.5 But for an order to administer the personal estate at the instance of the purchaser of the share of a residuary legatee, see Baldwin v. Baldwin. It has been held that a debtor to the testator could not maintain a bill in Chancery to restrain the executor's action for the debt, on the ground that the testator had appropriated the debt to purposes other than those to which the executor was about to apply the proceeds.7 Where in administration suits it is clear that a surplus will remain after discharging debts and liabilities, although the amount cannot be fixed for some time, proportional payments, so far as safe for creditors, may be made to pecuniary legatees; and where the executor admitted that the debts and funeral ex 1 Rump v. Greenhill, 20 Beav. 512; Woodgate v. Field, 2 Hare, 211. 2 Gwyer v. Peterson, 26 Beav. 83. 3 Woodgate v. Field, 2 Hare, 211. Whitmore v. Oxbarrow, 2 Y. & C. C. C. 13. 5 Alexander v. Mullins, 2 K. & M. 568. • Cited, Daniell's Forms, 3rd ed., p. 499. Chancery 7 Darthey v. Winter, 2 Sim. & Stu. 536. penses had been paid, the Court on motion ordered the income of the money paid in by him to be paid to the residuary legatee (Dando v. Dando, 1 Simon, 510), the executor taking the responsibility of the payment. 3 Assets admitted by the personal representative himself to be in his hands unadministered, although liable to claims by creditors and others, will be ordered to be paid into Court forthwith, or in a reasonable time, varying with the circumstances;1 and for this purpose sums due by the personal representative to the estate are assets in his hands. In considering how much ought to be paid in, previous payments properly made and debts due to the executor, for which he has a right of retainer, are to be deducted from the amount of assets received by him. When the executor is beneficially interested in a share of the property, which has been invested upon an unauthorised security, and there are no debts to which the executor's share is liable, the order may be for payment of the remainder of the property into Court, and generally the persons seeking an order for payment into Court must either be entitled to the fund themselves, or have a sufficient interest in its security. Funds were ordered into Court in one case at the instance of a party having only a contingent interest, although all parties having vested interests were satisfied with the trustee's conduct and custody, and opposed the application. Where the debt and the existence of assets received by the defendant were clearly proved, and the defendant was about to flee the country, the Court has granted, on the application of the plaintiff, a writ of ne exeat regno. The writ is not generally granted against a personal representative who is a married woman, at least, if she has no separate property;5 and an attachment has been refused against a married woman where no order had been obtained for her to plead separately from her husband." 1 Man v. Harrison, 2 Cox, 377. 2 Rothwell v. Rothwell, 2 Sim. & Stu. 218. 3 Scare v. Ford, 7 Beav. 333. 631. 5 Moore v. Hudson, 1 Turn. & Russ. 96. 278. Bunyan v. Mortimer, M. & G. The personal representative should deposit in Court the documents relating to the estate, except those which it is necessary for him to retain. Upon a distinct admission of assets, even although it be denied that the assets are still in the executor's hand, unless they have been duly administered, the Court will order payment to the plaintiff forthwith. But an admission of assets is not absolutely conclusive, for it may be explained or shown that it was made by mistake, or that by inevitable accident the assets have since been lost.1 The benefit of admissions of assets is not confined to creditors, and where interest has been paid on a legacy, it has been treated as an admission of assets, and payment has been ordered without taking the accounts.2 But something depends upon the circumstances under which part payments of legacies have been made, whether they shall be taken as an admission of assets.3 An admission of assets by one executor does not bind the other executors; but an admission to one creditor or beneficiary is an admission to all.5 Recent statutes have conferred upon the Chancery Division large powers for vesting in other persons lands, stock, and choses in action vested in lunatic trustees or lunatic personal representatives, or infant trustees or trustees beyond the jurisdiction of the Court, and in other cases where difficulty arises in dealing with trust property. The administration decree protects the executor who acts under it from any action in respect of what he does, but parties not present in the action or not aware of it will not therefore be deprived of their right to follow the assets into the hands of creditors, legatees, or next of kin, among whom the assets have been divided. A creditor under a mere voluntary covenant or bond may have an administration decree. So may an 5 Cook v. Martyn, 2 Atk. 2. 613 & 14 Vict. c. 60; 15 & 16 Vict. c. 55. 1 Young v. Walter, 9 Ves. 365; Drewry v. Thacker, 3 Swans. 548. 2 Whittle v. Hemming, 2 Beav. 396. 3 Savage v. Lane, 6 Hare, 32. ▲ Hewes v. Hewes, 4 Sim. 1. 7 Lechmere v. Carlisle, 3 P. Wms. 222. |