*And by stat. 21 & 22 Vict. c. 95, s. 22, "all the provisions contained in the Court of Probate Act, respecting grants 8. 22, to apply to of administration pending suit, shall be deemed to apply to the case of appeals to the House of Lords under the said Act."

21 & 22 Vict. c. 95,

appeals.

20 & 21 Vict. c. 77, 8.71.

Receiver of real

lite.

any

Further, by the Court of Probate Act, 1857, s. 71, it is enacted, that "it shall be lawful for the Court of Probate to appoint any administrator appointed as aforesaid, or any other estate pendente person, to be receiver of the real estate of deceased person pending any suit in the Court touching the validity of any Will of such deceased person, by which his real estate may be affected; and such receiver shall have such power to receive all rents and profits of such real estate, and such powers of letting and managing such real estate, as the Court may direct " (c).

21 & 22 Vict. c. 95, 8. 21.

The Court of

Probate may require

from the receiver

By stat. 21 & 22 Vict. c. 95, s. 21, "It shall be lawful for the Court of Probate to require security by bond in such form as by any rules and orders shall from time to time be directed, with or without sureties, from any receiver security of the real estate of any deceased person appointed by of real estate. the said Court, under section seventy-one of 'The Court of Probate Act,' and the Court may, on application made on motion or in a summary way, order one of the registrars of the Court to assign the same to some person to be named by such order; and such person, his executors or administrators, shall thereupon be entitled to sue on

deceased's estate, under the probate and pending the appeal, the court ordered the probate to be brought into the registry, and thereupon that letters of administration pendente lite should be granted to the executors. Wright v. Rogers, L. R. 2 P. & D. 179.

A married woman under a power executed a will, and her husband by his will made her universal legatce and sole executrix. She survived him but did not take probate of his will nor reexecute her own. Litigation having arisen on the question whether the wife's executors were entitled to a limited or general grant of probate, the court appointed an administrator pendente lite to the estate of the husband, as well as one to the estate of the

589. the said security, or put the same in force in his or their own name or names, both at law and in equity, as if the same had been originally given to him instead of to the judge of the said Court, and shall be entitled to recover thereon, as trustee for all persons interested, the full amount due in virtue thereof."

of what the court before granting pendente lite.

must be satisfied

administration

lite though

Before granting administration pendente lite the court must be satis. fied as to the necessity of such an administrator (d), *and also as to the fitness of the proposed administrator; or must be placed in a condition to determine between the two (its most usual office upon such occasions), an Administration administrator, that is, being proposed by either party (e). The court will appoint an administrator pendente lite if it is just and proper to do so, although a receiver may have been appointed by the Court of Chancery in a suit pending between the same parties and affecting the same property as the testamentary or administration suit (ƒ).

pendente
receiver appoint-

ed by Court of
Chancery.

The later practice of the Prerogative Court was to appoint an administrator pendente lite in all cases where the Court of Chancery would appoint a receiver (g).

The administrator

On the other hand, it is the practice of the court to decline putting a litigant party in possession of the property, by granting administration pending suit to him, always granting must be an indifit, where requisite, to a nominee presumed to be indifferent between the contending parties (h).

(d) Young v. Brown, 1 Hagg. 54. Bellew v. Bellew, 34 L. J. P. M. & A. 125. But where the estate of the deceased consists of his share of a business which he was carrying on in partnership at the time of his death, and which is continued to be carried on by the surviving partner, the court will not appoint an administrator pendente lite against the wish of the surviving 'partner, unless a strong case is made that he dealt improperly with the business. Horrell v. Witts, L. R. 1 P. & D. 103. Neither will the court appoint an administrator pendente lite where there is a person named in the will as executor, whose appointment is not questioned, and who can discharge the duties of such an administrator.

ferent person:

Mortimer v. Paull, L. R. 2 P. & D. 85.

(e) Northey v. Cock, 1 Add. 329. (ƒ) Tichborne v. Tichborne, L. R. 1 P. & D. 730.

(g) Bellew v. Bellew, 34 L. J. P. & M. 125.

(h) Northey v. Cock, 1 Add. 330. Young . Brown, 1 Hagg. 54. Stratton v. Stratton, 2 Cas. temp. Lee, 49. However, in Colvin v. Fraser, 2 Hagg. 613, administration pendente lite and limited to certain property, was granted by consent to one of the litigant parties. De Chatelain v. Pontigny, 1 Sw. & Tr. 34. See further, as to the practice relating to the preference or rejection of nominees, Hellier v. Hellier, 1 Cas. temp. Lee, 381. Bond v. Bond, ibid.

⚫ nominee of the parties.

Administrators pendente lite are the appointees of the *court, and are is not to be con- not to be merely considered as the nominees or agents of sidered as a mere the several parties on whose recommendation they are selected (i). Therefore, in an administration pendente lite, limited to recover certain sums, and granted jointly to the nominees of the two parties in the suit, the court refused to dispense with such administrators entering into a joint bond (k). By stat. 20 & 21 Vict. c. 77, s. 72, "the Court of Probate may direct that administrators and receivers appointed pending suits involving matters and causes testamentary shall receive out of the personal and real estate pendente lite and of the deceased such reasonable remuneration as the

20 & 21 Vict. c. 77, 8.72.

Remuneration to administrators

receivers.

Power of adminis

lite:

Court think fit."

Although doubts were entertained on the subject before the case of Walker v. Woollaston (7), it was settled, that the admintrator pendente istrator pendente lite might maintain actions for recovering debts due to the deceased (m). So where a person, whether he is heir-at-law or next of kin, or any other man whatsoever, kept possession of the testator's leasehold estate, such an administrator was held entitled to bring ejectments for the recovery of the possession (n). But the nature of the authority conferred by such letters of administration was, before the passing of the Court of Probate Act, merely to collect the effects (o); and his power did not extend either to vest or distribute them (p). Therefore, even to enable him to lodge money in court, which he was not called upon to do, it was necessary for him to file a bill (2). And he had no authority to pay legacies; though if paid bona fide he would be allowed for them (r). But now it will be seen that the Court of Pro*bate Act (s. 70) expressly enacts that he shall have all the rights and

powers of a general administrator, other than the right of distributing the residue (s).

The duties of an administrator and receiver pendente lite commence from the order of appointment, and, if the decree in the

Commencement

action is appealed from, do not cease until the appeal and termination has been disposed of (t).

of duties of administrator pendente lile.

A receiver would

Such an administrator is not liable to interest upon a balance in his hands, during the pendency of the action (u). During a litigation in the Ecclesiastical Court for probate or administration, the Court of Chancery used to entertain a bill for the mere preservation of the property of the deceased, till the litigation was determined, and appoint a receiver, although the Ecclesiastical Court, by granting an administration pendente lite, might have provided for the collection of the effects (v).

formerly have been appointed by the Court of withstanding an pendente lite

Chancery, not

administration

might be also obtained:

but Chancery

Division would

not now appoint

receiver.

But although the Chancery Division of the High Court of Justice has jurisdiction so to do, it would not now entertain an application for the appointment of a receiver, but would leave the matter to be dealt with by the Probate Division. Thus in Barr v. Barr (x), where there was a motion for the transfer to the Probate Division of an action, which had been commenced in the Chancery Division for the appointment of a receiver of the rents and profits of a testator's real estate, *pending proceedings in the Probate Division to determine the validity of the will, Sir George Jessel, M. R., made the order for transfer, and pointed out that multiplicity of proceedings was one of the evils which the Judicature Acts was intended to meet, especially as shown in s. 24, sub-s. 7 of the act of 1873. And in Re Ivory (y), a motion for the

(8) See ante, p. *428.

(t) Taylor v. Taylor, 6 P. D. 29.

(u) Gallivan v. Evans, 1 Ball & Beatt. 191.

(v) Mitf. Pl. 145, 136, 4th edit. King v. King, 6 Ves. 172. Edmunds v. Bird, 1 Ves. & Beam. 542. Atkinson v. Henshaw, 2 Ves. & Beam. 85. Ball v. Oliver, 2 Ves. & Beam. 96. Watkins v. Brent, 1 Mylne & Cr. 102 (overruling the distinction taken by Lord Erskine in Richards v. Chave, 12 Ves. 462). Wood v. Hitchings, 2 Beav. 289. Such a suit need not be brought to a hear

ing: Anderson v. Guichard, 9 Hare,
275. In fact it never is brought to
a hearing. But after the litigation is
over in the Probate Court, the practice
is to discharge the receiver and dispose
of the costs. And if it appears that
there was no reasonable ground for
instituting the suit at all, the court will
order the defendant to pay all the costs,
though a receiver has been appointed :
Barton v. Rock, 22 Beav. 81. S. C.,
ibid. 376.

(x) W. N. 1876, p. 44.
(y) 10 Ch. Div. 372.

appointment of a receiver and an injunction was refused, in an action. in the Chancery Division for the administration of the personal estate of an intestate, against the defendant to whom letters of administration had been granted. Indeed, even before the Judicature Act, it was decided that having regard to the extended powers of the Court of Probate under sects. 70 and 71 of the act of 1857, the Court of Chancery ought not, in cases where an administrator pendente lite had been appointed by the Court of Probate, to continue its former practice as to the appointment of receivers pending litigation in the Court of Probate (z).

(2) Veret v. Duprez, L. R. 6 Eq. 329. Hitchen v. Birks, L. R. 10 Eq. 471. And see ante, p. *432 (v).