she could not, before the Married Women's Property Act, take administration without the consent of her husband (g), inasmuch, among other reasons, as he was required to enter into the administration bond, which she was incapable of doing. Yet if it could be shown that the husband was abroad, or otherwise incompetent, a stranger might join in the security in his stead (h). In either case the administration was committed to her alone, and not to her jointly with her husband: otherwise, if he should survive her, he would be administrator, contrary to the meaning of the act (i). since the Married Since the commencement of the Married Women's Property Act, 1882, a married woman may take administration without the consent of her husband, and in all respects act 45 & 46 Vict. c. in the *matter concerning the intestate's estate as if she were a feme sole. Women's Prop erty Act, 1882, 75. (g) See Bubbers v. Harby, 3 Curt. 50. (h) Toller, 91. (2) Anon. Style, 74. Toller, 91. If it were committed to them jointly during the coverture it might perhaps be It is safe to assume that what will disqualify one from acting as executor will equally defeat the right to administer, but not all persons competent as executors are likewise competent as administrators. Woerner on Admn. § 241. As to competency of executors, see p. 260 et seq., n., supra. As to statutory disqualifications for administration, see Am. note p. *387 supra. The disqualification to be considered is that which exists at the time of the appointment, not at the time of deceased's death. Griffith v. Coleman, 61 Md. 250. It seems that even an alien enemy may act as administrator, if within the state, if duly appointed and authorized. Carthey v. Webb, 2 Murph. 268. If the next of kin is non compos mentis, his guardian should be appointed. Mowry v. Latham, 23 Atl. Rep. 13. As to mental incapacity for administration, see p. 276, n., supra. An infant can neither be an administrator himself nor select one to be appointed to the office. Rea v. Engle good, because, if committed to the wife alone, the husband for such period may act in the administration with or without her assent: Aleyn, 36. sing, 56 Miss. 463. "On account of the incompetency of infants to bind themselves by bond or to render themselves liable to account for property which may come to their hands during minority, they cannot lawfully be appointed to fill the office of administrator. Wherever the right to administration devolves upon an infant, the proper course is to grant administration to his guardian or to some other person durante minore ætate." Carow v. Mowatt, 2 Edw. Ch. 57, 60; Labranche v. Trepagnier, 4 La. An. 558; Collins v. Spears, 1 Miss. 310; Pitcher v. Armat, 6 Miss. 288. A fortiori a married woman under age should not be appointed administratrix, although a female minor is in other respects emancipated by marriage. Briscoe v. Tarkington, 5 La. An. 692. So, the guardian of an infant residuary legatee should receive the administration cum testamento annexo. Matter of Lasak, 3 N. Y. 356. Coverture does not disqualify in most of the United States. Binnerman v. Weaver, 8 Md. 517; Estate of Gyger, 65 Pa. St. 311; Estate of Guldin, *81 Pa. St. 362; and see notes, pp. 272, 273, supra. In some states, as in New York and Massachusetts, this is expressly provided by statute. In some states if her husband is joined in the appointment, she may be appointed administratrix, English v. McNair, 34 Ala. 40; or executrix, Stewart's Appeal, 56 Me. 302. And where the husband must assent in order that letters should issue to his wife, his assent is sufficiently manifested by his joining her in the administration bond. Estate of Gyger, 65 Pa. St. 311. In Texas, the husband must join as well as consent. Nickelson v. Ingram, 24 Tex. 630. On the marriage of an administratrix her husband becomes joined in the administration in Massachusetts. Barbee v. Bush, 7 Mass. 510. And in Georgia, where coverture is a disqualification, the husband takes the appointment which the wife would have. Leverett v. Dismuke, 10 Ga. 98. So, letters pendente lite, on caveat to a will, go to the husband of a sole legatee of the sole legatee. Long v. Huggins, 72 Ga. 776. Letters of administration may be granted to a non-resident in most of the United States. Matter of Williams, 44 Hun 67; Libbey v. Mason, 112 N. Y. 525; Ehlen v. Ehlen, 64 Md. 360; Weaver v. Chase, 5 R. I. 356; Jones v. Jones, 12 Rich. 623; Ex parte Barker, 2 Leigh 719; Chicago &c. Railroad Co. v. Gould, 64 Iowa 343. But in Wisconsin, this is declared to be against the policy of the statute, although a resident may be appointed on application of one of the non-resident next of kin. Estate of Sargent, 62 Wis. 130. And in some other states non-residence is a disqualification. Matter of Stevenson, 72 Cal. 164; Estate of Beech, 63 Cal. 458; Williamson v. Furbush, 31 Ark. 539; Frick's Appeal, 114 Pa. St. 29. The office of administrator is one of trust and confidence, and ought not to be committed to an heir who has an interest in opposition to the other heirs of the estate. Bieber's Appeal, 11 Pa. St. 157; see Estate of Ellmaker, 4 Watts 34; Moody v. Moody, 29 Ga. 519: Estate of Heron, 6 Phila. 87; Owings v. Bates, 9 Gill 463; Drew's Appeal, 58 N. H. 319; State v. Bidlingmaier, 26 Mo. 483; State v. Reinhardt, 31 Mo. 95; Pickering v. Pendexter, 46 N. H. 89 in this case a disinterested nonresident was preferred to an interested resident of equal degree. So, bitter animosity between the next of kin renders them not "suitable" in New Hampshire. Drew's Appeal, 58 N. H. 319. A surviving partner should not be appointed administrator of the deceased partner's estate, Heward v. Slagle, 52 Ill. 336; Cornell v. Gallagher, 16 Cal. 367; Matter of Garter, 74 Cal. 338; Estate of Brown, 11 Phila. 127; see Davis v. Milligan, 88 Ala. 523. In Indiana, the same person may be appointed administrator of two or more estates, although there be conflicting interests. Wright v. Wright, 72 Ind. 149. But such appointment is not favored. State v. Bidlingmaier, 26 Mo. 483. So, even the widow will not be appointed, where she is subject to the undue influence of a large debtor of the deceased, who is charged with fraudulent combination with the deceased against his creditors. Stearns v. Fiske, 18 Pick. 24. On the other hand, the fact that a husband claims the whole estate of his deceased wife does not show a want of integrity, and does not disqualify as such. Estate of Carmody, 88 Cal. 616. The son of the judge making the appointment is not disqualified, Plowman v. Henderson, 59 Ala. 559; Koger v. Franklin, 79 Ala. 505; nor a father-in law, Hine v. Hussy, 45 Ala. 496; although such appointment is voidable, Koger v. Franklin, 79 Ala. 505. And in Massachusetts, the appointment of the brother of the judge's wife was held to be void, her father being the principal creditor. Hall v. Thayer, 105 Mass. 219. Ignorance. One who cannot write nor read writing, and has no experience in business, is incompetent in North Carolina. Stephenson v. Stephenson, 4 Jones 472. But in Maryland, it has been held that a widow's inability to read or write does not disqualify her from being appointed administratrix. Nusz v. Grove, 27 Md. 391. So, where the widow was illiterate and over seventy years of age, but of good average business capacity. Wilkey's Appeal, 108 Pa. St. 567; or illiterate and without any separate property. Bowerson's Appeal, 100 Pa. St. 434. See too, Gregg v. Wilson, 24 Ind. 227. In the New York statute "want of understanding" is a disqualification. This, it has been held, must amount to a lack of intelligence, and not simply a want of business knowledge. Goods of Shilton, Tuck. 73. In Pennsylvania, one who is insolvent is disqualified from being appointed administrator, Levan's Appeal, 112 Pa. St. 294; Cornpropst's Appeal, 33 Id. 537; but a poor person is not necessarily insolvent. Levan's Appeal, 112 Pa. St. 294. And see notes, pp. 274, 275, supra. So, improvidence, as a statutory disqualification, means a want of foresight in the management of property which would render the estate unsafe in his hands. Coope v. Lowerre, 1 Barb. Ch. 45. It means such habits as render a man unfit. And an executor might be removed on this ground for illiteracy coupled with small pecuniary means and misconduct and mismanagement in administering trust estates. Emerson v. Bowers, 14 N. Y. 449. To be rejected on this ground, a man must be shown to be so destitute of care and foresight in the management of the property that the estate would be unsafe in his hands. Matter of Cutting, 5 Dem. 456. So, the statute in New York disqualifying a person convicted of an infamous crime refers only to persons convicted within the State of New York. Estate of O'Brien, 67 How. Pr. 503; S. C. 3 Dem. 156. And a conviction for larceny in a foreign jurisdiction is no evidence that the person convicted is "incompetent by reason of improvidence." Estate of O'Brien, ubi supra. So, Vice and immorality. Letters testamentary cannot be withheld from one, who is otherwise entitled, for anything short of a legal disqualification—and not, e. g., for general want of honesty. Smith's Appeal, 61 Conn. 420. administration cannot be refused to the next of kin for moral turpitude, Coope v. Lowerre, 1 Barb. Ch. 45; or for drinking habits not amounting to the statutory disqualification of habitual drunkenness. Goods of Kechele, 1 Tuck. 52. But being a professional gambler is presumptive evidence of incompetency. McMahon v. Harrison, 6 N. Y. 443. And see as to immoral habits, Estate of Plaisance, Myrick's Prob. 117. SECTION III. Of the mode of granting letters of administration, and the prac tice relating thereto and form thereof.t Practice as to administration. In pursuance of the authority conferred by the Court of Probate Act, 1857, sect. 30 (k), a great many rules, orders, and instructions as to grants of letters of administration grants of letters of were made in the year 1862, for the regulation of the practice and of the fees of the court, in respect both of contentious and non-contentious business, and the guidance both of the principal and district registrars. They run to so great a length that it would be impracticable to insert them in a treatise such as this. It is, therefore, thought better merely to refer the reader for them to the books of practice (1). But inasmuch as these "orders, rules, and instructions" are in fact in a great measure founded on the old practice of the Prerogative Court, it is thought advisable to retain all the statements contained in this and the preceding and some of the following sections of the former editions of this work as to the then established practice of that court. ment or form. Administration is generally granted by writing under By what instruseal. It may also be committed by entry in the registry, without letters sub sigillo: but it cannot be granted by parol (m). By rule 45, P. R. (non-contentious business), "In every Time of granting case where probate or administration is for the first time letters. applied for after the lapse of three years from the death of *the deceased, the reason of the delay is to be certified to the registrars, and should the certificate be unsatisfactory, the registrars are to require such proof of the alleged cause of delay as they may see fit." In the case of a recent death, if a party swear that he is one of the next of kin, the grant will issue without inquiry as to the knowledge of the other next of kin (n), but where there are other next of kin equally entitled thereto the registrars may require + See American note at end of this Section. (k) See ante, p. *269. (Tristram and Coote's Practice, 10th ed., Browne on Probate. Some further rules, relating principally to pleas to declarations propounding wills, were made and issued (to take effect on and after 11 Jan. 1866), and from time to time further rules have been added which will be found set forth in the above books of practice. (m) Anon. Show. 408, 409. Godolph. Pt. 2, c. 30, s. 5. Toller, 119. (n) In the Goods of Darling, 3 Hagg. 565. proof by affidavit that notice of the application has been given to them (nn). The practice by rule 44, P. R. (non-contentious) is, that letters of administration shall not issue until after the expiration of fourteen days from the death of the intestate: unless for special cause (as that the goods would otherwise perish, or the like) the judge or two of the registrars shall think fit to order them sooner (o). Where a party entitled to the grant of administration has renounced, such renunciation may be retracted before the administration has passed the seal (p). Retracting renunciation. Intestates Wid OWS and Children Act, 1873, c. 52: In the case of intestacies where the property of the Stat. 36 & 37 Vict. person dying intestate is of small amount, facility for taking out letters of administration to his estate and effects is given by the Intestates Widows and Children Act, 1873 (36 & 37 Vict. c. 52). 8 1: This act provides that where the whole estate and effects of an intestate shall not exceed in value the sum of one hundred pounds, his widow, or any one or more of his children, provided such widow or children respectively shall reside at a distance exceeding three miles from the registry of the Court of Probate having jurisdiction in the matter, may apply to the registrar of the county court within the district of which the intestate had his fixed place of abode at the time of his death, and the said registrar shall fill up the usual *papers required by the Court of Probate to lead to a grant of letters of administration of the estate and effects of the said intestate, and shall swear the applicant and attest the execution of the administration bond according to the practice of the Court of Probate, and shall then transmit the said papers by post to the regis trar of the Court of Probate having jurisdiction in the matter, who shall in due course make out and seal the letters of administration of the estate and effects of the said intestate and transmit them by post to the said registrar of the county court to be by him delivered to the party so applying for the same, without the payment of any fee for the same save as is provided by this act. (Sect. 1.) [The schedule to the act gives a scale of fees payable according to the value of the estate to be administered. 5s. on £20 or under, and the sum, in addition, of 18. for every £10 or fraction of £10 beyond. £20.] (nn) Rule 28, P. R. ante, p. *362, note (@). (0) 1 Ought. 323, tit. 219, s. 1, note (a). (p) West v. Willby, 3 Phillim. 379. See M'Donnell v. Prendergast, 3 Hagg. 212. Ante, p. *233. |