her executor to certain persons, the Probate Court forbade that to be done, and ordered the packets to be opened in Court.1

As the original will, upon probate, is retained in the Probate Registry, a certificate of its proof and a parchment copy of the original, sealed by the Court, are given out to the executor or administrator cum testamento annexo, as the case may be; the certificate and copy, called the probate, are in all matters the conclusive evidence of the executor's title and authority. Should the certificate and copy have been lost, another probate was not granted, but only an exemplification of the probate taken from the records of the Court.

One probate has been used to suffice, for it is an old rule that probate to one executor enures to all the executors, but two probates may be granted, as where the testator has appointed an executor of a part of his estate, and afterwards by another will appointed another executor of the rest of his estate.2

Subject to the provisions of the Judicature Acts, Order LV., rule 1, as regards actions and issues tried by a jury, the practice of the Probate Court in regard to probate actions has been to order the costs to be paid out of the estate, if the action was caused by the negligence of the testator or through the fault of the persons entitled to the residue, and not to make an unsuccessful opponent of the will pay the costs of the other side where there was reasonable ground for the opposition to the will.3

1 Pelham v. Newton, Cas. temp. Lee, 46.

1 Cas. temp. Lee, 280.

3 Mitchell v. Gard, 3 Sw. & Tr. 275.

CHAPTER VI.

OF THE GRANT OF ADMINISTRATION.

LETTERS of administration are granted by the Probate Division to the estate of a deceased person who has no executor, and commonly, therefore, to the estates of persons who have died intestate.

Before the passing of the statute 20 & 21 Vict. c. 77, the bishops had jurisdiction in such cases, and were accustomed to grant letters of administration, except in some peculiar places, including some manors, to the lords of which jurisdiction had been anciently given by Royal grant. In the middle ages the chattels of the person intestate were taken by the ordinary, or bishop, in trust; but creditors so often complained that the ordinary kept the chattels and did not pay the debts of the deceased, that it was declared by the statute of Westminster II. following the Common Law, that the ordinary should be under the same liability to pay the debts of the deceased as an executor. Even this statute left the surplus assets to the ordinary, except so far as they might be taken by the widow and children, if any, claiming their partes rationabiles. It was, therefore, enacted by the statute 31 Edw. III. st. 1, c. 11, that where a man died intestate the ordinary should depute "of the next and most lawful friends" of the deceased to administer his goods, and generally to act as executors would do. By the statute 20 & 21 Vict. c. 77, the old jurisdictions to grant letters of administration were swept away, and were transferred to the Court of Probate, now the Probate Division of the High Court.

Until he has obtained a grant of letters of administration, an administrator can do scarcely anything. As the grant, unlike the grant of probate to an executor, has no relation back to the death of the deceased, the rule is that the acts of an administrator, before the grant makes him administrator, are null and void, so far as he is concerned as administrator. Thus, he could not commence an action before the grant, although he might begin a suit in Chancery.1 Query, which of these rules now prevails, the Judicature Act2 having declared the prevalence of equity where law and equity conflict? But a few acts of an administrator before his appointment have been held good, as where he meddled with and sold the goods of the intestate, afterwards being granted letters of administration, the sale was upheld, and so with actions brought, not as a representative of the deceased, but for the mere breach of the plaintiff's possession, in trover or trespass. But the few exceptions to the general rule depend upon the principle that the act sought to be excepted is for the benefit of the estate of the deceased.*

It is the practice of the Probate Division to refuse to grant letters of administration within fourteen days of the death of the deceased, except special circumstances be shown; and where administration is applied for more than three years after the death of the deceased, the reason of the delay must be certified to the registrars, or if they require it, proved to them.

Upon a grant of administration, a document signed by a registrar and sealed with the seal of the Court, and stating that letters of administration had been granted, is handed out to the administrator appointed, and is the proof of his authority. On obtaining the letters, the administrator takes, mutatis mutandis, an oath similar to that of an executor on obtaining probate.

As to administration to the wages and prize money of intestate soldiers, seamen, and marines, and the claims of creditors

upon the same, see the statutes 11 Geo. IV. c. 20; 11 Geo. IV. & 1 Will. IV. c. 41; 2 & 3 Will. IV. c. 53; and 26 & 27 Vict. c. 57.

By the Act 20 & 21 Vict. c. 77, ss. 81-83, it is provided that every person to whom any grant of administration shall be committed shall give bond to the judge of the Court of Probate to enure for the benefit of the judge for the time being, and if the Court of Probate, or (in the case of a grant from a district registrar) the district registrar shall require, with one or more surety or sureties conditioned for duly collecting, getting in, and administering the personal estate of the deceased, which bond shall be in such form as the judge shall from time to time by any general or special order direct; provided that it shall not be necessary for the solicitor for the affairs of the Treasury or the solicitor of the Duchy of Lancaster applying for or obtaining administration to the use and benefit of Her Majesty to give any such bond as aforesaid." The bond is in double the amount under which the estate is sworn, and two sureties are required to the bond unless the administrator be the husband of the deceased or his representative, when only one is required. If need be to sue upon the bond, the Court may assign it to some person, who will then be entitled to sue upon it in his own name but as trustee for all persons interested. But a creditor having obtained an assignment cannot sue upon the bond for his own benefit merely on the ground that his debt has not been paid.1

The rule upon which the Probate Division proceeds in making grants of administration to the estates of deceased persons is that the grant should follow the right to the property in the estate. The statute of Henry VIII. indicates the right of the next of kin, i.e., the next of kin at the time of the death, and the guide to the inquiry who are the next of kin for the purposes of administration is the Statute of Distributions. It will be considered hereafter in what order the kindred are ranked by the latter statute. Meanwhile it is enough to say that, as regards the right to administration, the children and their de

1 Sandrey v. Michell, 3 B. & S. 405.

scendants of the intestate are first entitled; then the parents of the intestate; then, in the order named, brothers and sisters, grandfathers and grandmothers, uncles and nephews, greatgrandfathers and great-grandmothers, and cousins. There is no difference in rank between the father's relations and the mother's relations, nor does primogeniture give any superior right, nor are the kindred of the whole blood better entitled than the kindred of the half-blood. Subject to these rules, that person is preferred who is fewest degrees removed from the intestate, reckoning by the civil law method of computation, i.e., from the intestate to the common ancestor of the intestate and of the claimant, and then down to the claimant, counting each generation a step in the computation as one degree. Thus an uncle is three degrees removed from the intestate, and a cousin four degrees, and a second-cousin six degrees.

Administration is not committed to all the kindred standing in the nearest degree, but ordinarily to one only of them, for the Court prefers a single administrator to joint administrators, as joint administrators must co-operate in all their acts, and among persons of equal degree the Court may make the grant in its discretion to the eldest, or to a male rather than to a female, or to the person supported by most of the next of kin, or to the whole blood rather than to the half-blood. And the Court inclines to a person of business habits, and is averse from appointing one who has been bankrupt.1 And when the Court has once appointed one of the next of kin, differing from the case of probate given to one of several executors, the other next of kin have no right to administration until the death of the administrator.2

The claim of a widower husband to administration stands on peculiar grounds. A husband has a general right to be his wife's administrator, unless the marriage was void,3 or has been dissolved on the ground of his adultery and desertion. And if