Coverture is no incapacity for the office of administrator. (h1) Therefore, if a feme covert be next of kin to the intes- Feme tate, administration shall be granted to her. (i) But she covert. cannot take administration without the consent of her husband, (k) inasmuch, among other reasons, as he is required to enter into the administration bond, which she is incapable of doing. (1) Yet if it can be shown that the husband is abroad, or otherwise incompetent, a stranger may join in the security in his stead. (1) In either case the administration is 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. (m)

In Da Rosa v. De Pinna, (n) a married woman prayed administration to her mother and sister, and was opposed by another sister. The judge of the prerogative decreed administration to pass under seal to the married woman, who was sworn administratrix. The sister appealed, and in the * delegates the married woman gave a proxy to renounce her right to the administration, in order to prejudice her husband; the husband intervened, and prayed that her proxy might be rejected. The court was of opinion, that on decreeing the administration to the wife, an interest was vested in her husband which she could not by any subsequent act deprive him of, and therefore rejected her proxy of renunciation.

leans, 1 Sw. & Tr. 253; [Carow v. Mowatt, 2 Edw. Ch. 57; Collins v. Spears, 1 Miss. (Walk.) 310.]

(h) [Note (i) below; ante, 232, note (c). But in Georgia a feme covert is disqualified by statute. See Leverett v. Dismukes, 10 Geo. 98. And see Kavanaugh v. Thompson, 16 Ala. 817.]

(i) Com. Dig. Admor. B. 6; Ib. Admor. D. [By a recent statute of New York (1867, c. 782, § 2) married women are rendered competent in that state to receive letters of administration the same as if sole; so in Massachusetts, by St. 1874, c. 184, § 4; ante, 232, note (c). In Maryland, a married woman may act as administratrix or executrix. Binnerman v. Weaver, 8 Md. 517. As to Pennsylvania, see Gyger's Estate, 65 Penn. St. 311.] (k) [See statutes of Massachusetts, 1869, c. 409; 1874, c. 184, § 5; ante, 232, note (c).] See Bubbers v. Harby, 3 Curt. 50, in

which case a motion for administration with a will annexed to the attorney of a residuary legatee, a married woman, upon her proxy alone, her husband refusing to join, was rejected.

(k) [English v. McNair, 34 Ala. 40. This difficulty is obviated in Massachusetts by statute 1869, c. 409.]

(1) Toller, 91.

(m) Anon. Style, 74; S. C. semble, by the name of Wood v. Brown, Aleyn, 36; Toller, 91; [Stewart's Appeal, 56 Maine, 302.] If it were committed to them jointly during the coverture, it might perhaps be 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.

(n) 2 Cas. temp. Lee, 390. See, also, Haynes v. Matthews, 1 Sw. & Tr. 460 ; ante, 425.

SECTION III.

Of the Mode of granting Letters of Administration, and the Practice relating thereto, and Form thereof.

Practice as to grants of letters

of administration.

In pursuance of the authority conferred by the court of probate act, 1857, sect. 30, (o) a great many rules, orders, and instructions as to grants of letters of administration 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. (p) But inasmuch as these "orders, rules, and instructions" are in fact in a great measure founded on the old practice of the prerogative court as it stood at the time of the passing of the act, and the practice of the court of probate, subject to the rules and orders (by sect. 29 of the court of probate act, 1857), (q) is generally to be according to the then present 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. Administration is generally granted by writing under seal. (q1) It may also be committed by entry in the registry, without letters sub sigillo; but it cannot be granted by

By what instrument or form.

parol. (r)

Form.

The following is to be the form of the grant to a next of kin:

(0) See ante, 323.

(p) Coote's Practice; Dodd & Brooke's Practice. Some further rules, relating principally to pleas to declarations propounding wills, were made and issued (to take effect on and after 11 January, 1866). (7) See ante, 323.

(q1) [See Tuck v. Boone, 8 Gill, 187; Post v. Caulk, 3 Missou. 35.]

(r) Anon. Show. 408, 409; Godolph. pt. 2, c. 30, s. 5; Toller, 119. [The possession of letters of administration by the person to whom they purport to be granted is primâ facie evidence of delivery. M'Nair v. Dodge, 7 Missou. 404; Hensely v. Dodge, 7 Missou. 479.]

"In her Majesty's Court of Probate. "The Principal Registry.

"Be it known that on the

day of

18 letters of

administration of all and singular the personal estate and effects

of A. B., late of

deceased, who died on

at

, (8) 18 intestate, were granted by her majesty's court of probate to C. D., the lawful widow and relict [or as the case may be] of the said intestate, she having been first sworn well and faithfully to administer the same, by paying the just debts of the said intestate, and distributing the residue of his estate and effects according to law, and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whensoever required by law so to do.

"(Signed) E. F. (81)
"Registrar."

By a modern regulation of the prerogative court of Canterbury, where letters of administration were applied for after the Time of granting expiration of five years from the death of the intestate, letters." the delay must have been satisfactorily accounted for by an affidavit made by the administrator or other competent person. (t) And now by rule 45, P. R. (Non-contentious Business), "In every case where probate or administration is for the first time applied

(s) The time of the death was required to form part of the oath, and to be inserted in the margin of the grant, by a rule of the prerogative court of Canterbury. See the reason, ante, 385, note (b). (s1) [See Post v. Caulk, 3 Missou. 35; Witsel v. Pierce, 22 Geo. 112; Farley v. McConnell, 7 Lansing, 428. As to appointment, and certificate of it, see Tucker v. Harris, 13 Geo. 1; Witsel v. Pierce, 22 Geo. 112; Haskins v. Miller, 2 Dev. (Law) 360. In Missouri the order of the court is a sufficient appointment of an administrator, without any formal letters, if the party gives the bond and takes the oath required by law. State v. Price, 21 Missou. 434.]

(t) Gwyne on Probate and Legacy Duties, p. 10. See In the Goods of Darling, 3 Hagg. 561; ante, 385, note (b). [In Massachusetts, administration, except in special cases, cannot be originally granted after twenty years from the death of the

testator or intestate. Genl. Sts. c. 94, s. 3. The grant of original administration after the expiration of that period is a nullity. Wales v. Willard, 2 Mass. 120; Jochumsen v. Willard, 3 Allen, 87, 90. But administration de bonis non may be granted after the expiration of twenty years from the death of the former administrator. Bancroft v. Andrews, 6 Cush. 493; Kempton v. Swift, 2 Met. 70. To the same effect is Holmes, petitioner, 33 Maine, 577. For the limitation in Tennessee, see Townsend v. Townsend, 4 Coldw. 70, the same as to letters testamentary and of administration. As to Texas, see Cochran v. Thompson, 18 Texas, 652; Lloyd v. Mason, 38 Texas, 212. In Alabama an administrator cannot be appointed within fifteen days after the death is known. Curtis v. Williams, 33 Ala. 570; Curtis v. Burt, 34 Ala. 729. As to the liability of suretics on a bond given by an administrator upon a grant to him of original

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 swears 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. (u)

The practice of the prerogative court was, and of the court of probate (by rule 44, P. R. Non-contentious Business) 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. (x)

Where a party entitled to the grant of administration has reRetracting nounced, such renunciation may be retracted before the administration has passed the seal. (y)

renuncia

tion.

The oath to be made by the administrator, on his taking out letters of administration, is to be in this form:

"In her Majesty's Court of Probate. "The Principal Registry.

"In the goods of A. B., deceased.

, in the county of

"I, C. D., of make oath and say [or solemnly, sincerely, and truly declare and affirm, according to the form of words prescribed by the statute applicable to the particular case], that A. B., late of deceased, died intestate, (2) a bachelor, without parent, * brother or sister, uncle or aunt, nephew or niece [or as the case may be], and that I am the lawful cousin german [or as the case may be], that I will faithfully

(z) It is sufficient if the administrator swears that the deceased made no will except as to real estate. O'Dwyer v. Geare,

letters of administration after the time prescribed by statute, see Foster v. Commonwealth, 35 Penn. St. 148.] (u) 3 Hagg. 565. But see rule 28, P. 1 Sw. & Tr. 465. A party having died R., ante, 425, 426, note (l).

(x) 1 Ought. 323, tit. 219, s. 1, note (a). (y) West v. Wilby, 3 Phillim. 379; [Casey v. Gardiner, 4 Bradf. Sur. 13.] See M'Donnell v. Prendergrast, 3 Hagg. 212; [McClellan's Appeal, 16 Penn. St. 110, 116;] ante, 283, [417, note (o); Stocksdale v. Conaway, 14 Md. 99; Estate of Kirtlan, 16 Cal. 161.]

insane, leaving a will, which upon face of it exhibited marks of insanity, the court granted administration of the effects of the deceased as dead intestate, but directed the will to be deposited in the registry. In the Goods of Bourget, 1 Curt. 591. See, also, Palmer v. Dent, 2 Robert. 284; Perry v. Dyke, 1 Sw. & Tr. 12.

administer the personal estate and effects of the said deceased, by paying his just debts and distributing the residue of his said estate and effects according to law; that I will exhibit a true and perfect inventory of all and singular the said estate and effects, and render a just and true account thereof, whenever required by law so to do; that the said deceased died at day

of

18

on the ; (a) and that the whole of the personal estate and effects of the said deceased does not amount in value to the sum of pounds, to the best of my knowledge, information,

and belief.

"(Signed) A. B.

day of

66

(Person authorized to administer oaths under the act)." The concluding part of this oath is in accordance with the stat. 55 Geo. 3, c. 184, s. 38 (the stamp act), by which it is enacted that no ecclesiastical person shall grant letters of administration, without first receiving from the person applying for them, or some other competent person, an affidavit whether the estate and effects of the deceased, in respect of which administration is to be granted, are under the value of a certain sum to be therein specified. (a)

SECTION IV.

Of Administration to the Effects of Intestate Seamen, Marines, and Soldiers.

By stat. 11 Geo. 4 and 1 W. 4, c. 20, the statute 55 Geo. 3, c. 60 is repealed.

*

11 Geo. 4, c. 20.

officer,

obtaining

By section 56, the wages, prize money, &c. of a petty or seaman, or non-commissioned officer of marines, or Mode of marine, dying intestate, are to be paid to his repre- administrasentatives, only upon administration obtained in the tion to following manner; (b) videlicet, the person claiming intestate administration shall send a letter to the inspector, stat- &c. ing his abode, his relationship to the deceased, the names of the

(a) See post, pt. 1. bk. vII.

(b) If an application is made for administration to be granted to the nominee of the crown of the personal estate of a seaman in the queen's service, as a bas

effects of

seamen,

tard, and it is intended that such administration should extend to the pay or prize money due to the deceased, the requirements of this section must be attended to. In the Goods of Bevan, 11 Jur. N. S. 982.