613 *CHAPTER THE FOURTH. OF THE ADMINISTRATION BOND TO THE ORDINARY.† In this chapter it is proposed to consider the security required of an administrator, upon administration being committed to him. Practice before the Court of Probate Act, 1857. Bond to the Ordi nary by adminis trator under stat. The statute 21 Hen. VIII. c. 5, s. 3, directs the Ordinary to grant administration, "taking surety of him or them to whom shall be made such commission:" and the statute 22 & 23 Car. II. c. 10, s. 1, further provides, that "all Ordinaries, as well as the Judges of the Prerogative Courts of Canterbury and York for the time being, as all other 22 & 23 Car. II. Ordinaries and Ecclesiastical Judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may upon their respective granting and committing of administrations of the goods of persons dying intestate, after the first day of June, 1671, of the respective person or persons to whom any administration is to be committed, take sufficient bonds with two or more able sure ties (a), respect being had to the value of the estate, in conditioned to make a true in "The condition of this obligation is such, that if the withinbounden, A. B., administrator of all and singular the goods, chattels and credits of C. D., deceased, do make ventory, &c.; or cause to be made a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased which have or shall come to the hands, possession or *knowledge of him the said A. B., or into the hands and possession of any other person or persons for him, and the same so made do exhibit or cause to be exhibited into the registry of Court, at or before the day of next ensuing: " "And the same goods, chattels and credits, and all other the goods, chattels, and credits of the said deceased at the time of to administer well his death, which, at any time after, shall come to the + See American note at end of this Chapter. (a) By the practice of the Prerogative Court of Canterbury, a husband, taking and truly: administration to his deceased wife, entered into bond with one surety: In the Goods of Noel, 4 Hagg. 208. hands or possession of the said A. B., or into the hands and possession of any other person or persons for him, do well and truly administer according to law." "And further do make or cause to be made, a true and just account of his said administration at or before the to make a true and just account of his administra. tion: to deliver and pay judge shall appoint: of day : And all the rest and residue of the said goods, chattels, and credits which shall be found remain ing upon the said administrator's account, the same being first examined and allowed of by the Judge or Judges for the time being of the said Court, shall deliver and pay unto such person the residue as the or persons respectively as the said Judge or Judges by his or their decree or sentence, pursuant to the true intent and meaning of this Act, shall limit and appoint: "And if it shall hereafter appear, that any last Will and testament was made by the said deceased, and the executor or letters, if a will executors therein named do exhibit the same into the shall appear. said Court, making request to have it allowed and approved accordingly, if the said A. B. within-bounden, being thereunto required, do render and deliver the said letters of administration. (approbation of such testament being first had and made) in the said Court Then this obligation to be void and of none effect, or else to remain in full force and virtue." and to deliver the "Which bonds are hereby declared and enacted to be good to all intents and purposes, and pleadable in any Courts of Justice." But by the 80th section of the Court of Probate Act (20 & 21 Vict. Repealed by c. 77), so much of the above statutes as requires *any Court of Probate Act, Stat. 20 & 21 surety, bond or other security to be taken from a person to whom administration shall be committed, shall Vict. c. 77, s. 80. be repealed." And by sect. 81, "Every person to whom any grant of administraSect. 81. Persons tion shall be committed shall give bond to the Judge of to whom grants the Court of Probate to inure for the benefit of the of administration shall be made the judge. shall give bond to 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 " (b). By sect. 82, "Such bond shall be in a penalty of double the amount under which the estate and effects of the deceased shall Sect. 82. Penbe sworn, unless the Court or district registrar, as the alty on bond. case may be, shall in any case think fit to direct the same to be reduced (c), in which case it shall be lawful for the Court *or district registrar so to do; and the Court or district registrar may also direct that more bonds than one shall be given (d), so as to limit the liability (b) Where, however, administration is granted to the Treasury solicitor he shall, notwithstanding that he does not give the bond which if such administration had been granted to him as a private individual he would be required by law to give, be subject as regards the administration to the liabilities and duties imposed by such bond (Treasury Solicitor Act, 1876), 39 & 40 Vict. c. 18. And an exactly similar provision with regard to administration granted to the solicitor of the Duchy of Lancaster is contained in 15 & 16 Vict. c. 3, s. 2, repealed by 39 & 40 Vict. c. 18, s. 9, and Sched. I., but re-enacted by Sched. II. of the same act. See ante, p. *372. (c) In a case where an intestate left £3,000, and £45 of debt, and his mother solely entitled in distribution, the court granted administration on the mother entering into a bond in the amount of £100 with sureties. In the Goods of Gent, 1 Sw. & Tr. 54. Where administration was granted merely to enable a personal representative of the deceased to execute a formal release under a marriage settlement the court allowed the property to be sworn under £20. In the Goods of Stacpoole, 2 Sw. & Tr. 316. In a case where a cessate grant was required for £300, the value of two shares, the only property not distributed, the whole estate under the original grant having been sworn under £3,000, the court accepted a bond in a penalty of £600, being double the value of the two shares. In the Goods of Fozard, 3 Sw. & Tr. 173. Where an estate had been partly administered, and a further bond became necessary, the court allowed the administrator to take the grant for the amount then due to the estate, and to give security only for double that amount. In the Goods of Halliwell, 10 P. D. 198. And where an estate was being administered in the Chancery Division and an order had been made that each individual share of the estate should be paid directly to the parties entitled, the court allowed the penalty of the administration bond to be limited to double the amount of the beneficial interest of the applicant. In the Goods of Paxton, 14 P. D. 40. In the Goods of Bennison, ib. (d) See In the Goods of Weir, 1 Sw. & Tr. 506, where a sum of money had been received by the administrator which made it necessary to re-swear the amount for which administration was taken out, and the court under this section, directed an additional bond, which would, together with the original one, be double the amount under which the estate was to be re-sworn. And in a case where the property was large and the risk small, the court refused to dispense with sureties to a bond or to lessen the amount secured, but allowed the security to be made up of any number of bonds. In the Goods of Earle, 10 P. D. 196. of any surety to such amount as the Court or district registrar shall think reasonable." Sect. 83. Power bond. By sect. 83, "The Court may, on application, made on motion or petition in a summary way (e), and on being satisfied of court to assign that the condition of any such bond has been broken, order one of the registrars of the Court to assign the same to some person to be named in such order, and such person, his executors or administrators, shall thereupon be entitled *to sue on the said bond, in his own name, both at law and in equity, as if the same had been originally given to him instead of to the judge of the Court, and shall be entitled to recover thereon, as trustee for all persons interested, the full amount recoverable in respect of any breach of the condition of the said bond." As to differences existing between the new form of bond, and that given under the statute of Charles and also as to the practice as established under the old law, see the former editions of this work, and the authorities there cited, Pt. I. Bk. V. Ch. 4. In the case of Sandrey v. Michell (f), the Court of Queen's Bench Creditor who is appears to have been of the opinion that the Court of assignee of bond Probate Act made no alteration in the law beyond this that it enabled a creditor on having the bond assigned to him to sue in his own name. may sue in his own name. What is a breach of such bond. In that case the action was against sureties to a bond conditioned according to the form given by the rule made in purof the condition suance of the 81st section of the Court of Probate Act (g), and which consequently contained, as part of the condition, the terms (not to be found in the bond given under the statute of Charles), that the administrator shall pay the debts which the deceased owed at his death: The action was brought by a creditor, to whom the bond had been assigned under sect. 83, and the declaration alleged that assets came to the hands of the administrator, and that he had wasted the same, and did not pay the debt of the plaintiff : The plea was that the only breach of the condition of the bond was the non-payment of the debt to the plaintiff: The replication was, (e) See In the Goods of Jones, 3 Sw. & Tr. 28. Baker v. Brooks, lb. 32. In the Goods of Young, L. R., 1 P. & D. 186, where it is decided that the court will allow an administration bond to be assigned upon being satisfied that the application for the order is made bona fide and a prima facie case is made out (f) 3 B. & S. 405. that the administrator had wasted assets of the deceased sufficient to pay the debt: And the Court of Queen's Bench held, that the defendant was entitled to judgment, as the bond could only be enforced for the general benefit of persons interested in the estate of the intestate, and not for the non-payment of a particular debt (h). *By stat. 21 & 22 Vict. c. 95, s. 15, "bonds given before 11 Jan. 1858, are to remain in force." 21 & 22 Vict. c. 95, s. 15, bonds given before Jan. in force. It was held in Young v. Hughes (i), that this enact- 11, 1858, to remain ment had not a retrospective effect, so as to enable the assignee of a bond given to the Ordinary before the passing of the Court of Probate Act to maintain an action commenced by him before the stat. 21 & 22 Vict. c. 95 passed. But although it is plain that such a bond is not assignable under the 83rd section of the Court of Probate Act, yet there seems to be no doubt that, under the 15th section of the act above stated, a bond given to the Ordinary prior to Jan. 11, 1858 (the day on which the Court of Probate Act came into operation), may, at any time after the 15th section came into operation, be assigned and proceeded upon by the assignee in all respects as if it had been given to the judge of the Court of Probate subsequently to Jan. 11, 1858 (k). Where the administration is not within the statute 21 H. VIII. as in the case of an administrator durante minore ætate Breach of bond with the will annexed (1), or other grant of administra- given when the tion when the deceased dies intestate, and the Ordinary not within 21 administration is Hen. VIII. had taken a bond from the administrator, conditioned for the due payment of debts and legacies, a breach might well be assigned that, though he had more than sufficient to pay all the debts, he had not paid a legacy (m). (h) The court gave leave to amend the declaration, so that the plaintiff should sue as trustee under the 83rd section. (1) 4 H. & N. 76. See also Young v, Oxley, 1 Sw. & Tr. 25, where Sir C. Cresswell directed an administration bond given in the Consistory Court of Chester to be assigned, so that it might be put in suit at common law. (k) 4 H. & N. 84, by Pollock, C. B. It seems to have been the opinion of Martin, B., and Channell, B., that the 87th section of the Court of Probate Act, shows an intention to transfer to the Court of Chancery the jurisdiction over such a bond: 4 H. & N. 84, 86. Sed quære de hoc. See Bouverie v. Maxwell, L. R., 1 P. & D. 272, where it was held that the Court of Probate had no jurisdiction to compel administrators, who had taken out administration in an ecclesiastical court, to file inventories and accounts in the registry of the court. Such inventories and accounts being by virtue of the 87th section returnable only into the Court of Chancery. (1) See ante, pp. *400, *416. (m) Folkes v. Docminique, 2 Stra. 1137. |