However, it is stated by Lord C. B. Gilbert, (i) that such an administrator is not chargeable at the suit of a creditor after the infant comes of age; but such creditor may sue the infant, who has his remedy against the executor. (k) And it is said by Lord Hardwicke, in Fotherby v. Pate, (1) that though an administrator durante minore ætate represents the deceased while his administration subsists, yet when it is determined, he has nothing more to do, nor can he be called to account but by the executor; and that whatever he may do during his administration, he is not liable to any other person. His lordship proceeded to observe, that after such an administrator has possessed himself of effects, if he is brought before the court, without the executor, he may demur for that cause; but as the court would allow a party to follow assets into any hands, if it were shown by proper charges that he had not accounted to the infant, but fraudulently and by collusion detained any part, there was no doubt but that such a bill might be maintained against an administrator durante minore ætate. (m) It seems clear that an administrator durante minore ætate, who has wasted the goods of the deceased, cannot be charged by a creditor as executor de son tort, after the infant has attained his majority; because the administrator at the time had lawful power to administer. (n) to a sub adminis In Taylor v. Newton, (o) an administration had been * granted to a guardian pendente minoritate of a widow, and on her coming of age she renounced for herself and her sequent only child, an infant, and administration was granted to trator: a creditor, to whom the guardian refused to account; whereupon he was called on by the creditor to give in an inventory and account. The guardian appeared under a protestation, because his administration was expired, and his counsel insisted that he was not liable to account, now his administration was expired. But Sir George Lee decreed him to give in an inventory and account by a day specified, and condemned him in costs. With respect to the liability of such an administrator to the in (i) Bac. Abr. Exors. B. 1, 2. (k) See, also, acc. Brooking v. Jennings, 1 Mod. 175, by Vaughan C. J. (1) 3 Atk. 603. (m) 3 Atk. 605. (n) Palmer v. Litherland, Latch, 160, by Doddridge and Jones, JJ.; Lawson v. Crofts, 1 Sid. 57. (0) 1 Cas. temp. Lee, 15. to the infant when of age. fant, after he has come of age, it is laid down, that if the administrator wastes the assets, the proper way for the infant to charge him is by action on the case. (p) Also by some opinions the infant may bring detinue against him for those goods which he still continues in his possession, or he might oblige him to account in the spiritual court, (q) but cannot bring a writ of account against him at law. (r) infant on ministra If an administration durante minore ætate be repealed, and another made administrator durante minore ætate, and the second administrator brings the first administrator to account, and after releases to him, yet the infant at full age may compel the first administrator to account again to him, and the first account to the second administrator, and his release shall not be any bar to it. (s) Liability of It has been held that if a man obtains judgment judgment against an administrator durante minore ætate, and against ad- afterwards the executor or administrator comes of age, a tor. scire facias (t) lies against him, upon the judgment. (u) Although an administrator of an executor is not administraAdminis- tor to the first testator, yet the administrator durante rante mino- minore ætate of the executor of an executor is loco executoris, and the representative of the first testator. (v) Therefore, in an action by a creditor of the original testator, such an administrator is properly charged as the administrator durante minore ætate of the second executor, and not as the administrator de bonis non of the original deceased. (w) And he might formerly be sued in the spiritual court for a legacy bequeathed by the latter. (x) * trator du ritate of executor. (p) Bac. Abr. Executors, B. 1, 2; Law- Bell J. said: "We regard it as the law in son v. Croft, 1 Sid. 57. (9) 1 Anders. 34; Com. Dig. Administration, F.; Bac. Abr. Exors. B. 1, 2. (r) 1 Anders. 34; Bac. Abr. Exors. B. 1, 2. (s) Roll. Abr. Exors. M. pl. 3. (t) As to the proceedings now substituted in lieu of scire facias by the common law procedure act (1852), see post, pt. 11. bk. III. ch. IX. (u) Sparkes v. Crofts, 1 Ld. Raym. 265. [In Taylor v. Barron, 35 N. H. 484, 493, [495] this state, that successive administrators SECTION IV. Of Administration pendente lite. In case of a controversy in the spiritual court concerning the right of administration to an intestate, it seems to have been always admitted, that it was competent to the ordinary to appoint an administrator pendente lite. (x1) Yet where the controversy before the ordinary respected a will, it was once considered that a grant of this species of administration was utterly void. (y) But since the case of Walker v. Woolaston, decided in K. B., on error from C. P., Trin. T. 1731, (z) it has been settled, that the court has the power to grant administration pendente lite as well touching an executorship as the right to administration. (a) 20 & 21 Vict. c. 77, 8. 70. Court may grant administra tion pen And now by the 70th section of the court of probate act, 1857 (20 & 21 Vict. c. 77), it is enacted, that "pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling or revoking any probate or any grant of administration, the court of probate may appoint * an administrator of the personal estate dente lite. of such deceased person; and the administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of such personal estate, and every such administrator shall be subject to the immediate control of the court and act under its direction." (b) (x1) [See Walker v. Dougherty, 14 Geo. 653; Sarle v. Court of Probate, 7 R. I. 270. Such an administrator generally gives bonds. See Re Colvin, 3 Md. Ch. 278; Genl. Sts. Mass. c. 94, § 7.] (y) Robin's case, Moore, 636; Smyth v. Smyth, 3 Keb. 54; Frederick v. Hook, Carth. 153. (z) 2 P. Wms. 589. (a) S. P. Wills v. Rich, 2 Atk. 286; Maskeline v. Harrison, 2 Cas. temp. Lee, 258. (b) See In the Goods of Dawes, L. R. 2 P. & D. 147; [Gresham v. Pyron, 17 Geo. 263.] See, also, Charlton v. Hindmarsh, 1 Sw. & Tr. 519, where the court directed that the administrator should not discharge claims on the deceased's estate until they had passed before the registrar. See, also, Wright v. Rogers, L. R. 2 P. & D. 179; Hitchen v. Birks, 10 Law Rep. Eq. Cas. 471; Tichborne v. Tichborne, L. R. 2 P. & D. 41. [By statute in Massachusetts, the probate court may appoint a special administrator to collect and preserve the effects of the deceased, when by reason of a suit concerning the proof of a will, or from other cause, there is delay in granting letters testamentary or of administration; and in case of an appeal from the decree appointing such special administrator, he shall nevertheless proceed in the execution of his duties until it is otherwise ordered by the supreme court of probate. Genl. Sts. c. 94, § 6. Such administrator is required to give 21 & 22 And by stat. 21 & 22 Vict. c. 95, s. 22, "all the provisions contained in the court of probate act respecting grants of administration pending suit shall be deemed to apply to the case of appeals to the house of lords under the said act." Vict. c. 95, s. 22, to apply to appeals. 20 & 21 Vict. c. 77, s. 71. Receiver of real estate pendente lite. 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 person, to be receiver of the real estate of any 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, s. 21. The court 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 of probate of the real estate of any deceased person appointed by the said court, under section seventy-one of 'The Court of Probate Act,' and the court may, on application made real estate. 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 the said security, or put may require security from the receiver of bonds. § 7. His duty is to collect all the goods, chattels, and credits of the deceased and preserve them for the executor or administrator when appointed, and for that purpose he may commence and maintain suits, and may sell such perishable and other goods as the judge shall order to be sold. If he is appointed by reason of a suit concerning the probate of a will, or delay for any cause in granting letters testamentary, the judge may authorize him to take charge of the real estate, collect the rents, and do all things needful for the preservation thereof, and as a charge thereon. § 8. He may by leave of the probate court pay from the personal estate in his hands, the expenses of the last sick ness and funeral of the deceased. § 11. (c) See Grant v. Grant, L. R. 1 P. & D. 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 to recover thereon, as trustee for all persons interested, the full amount due in virtue thereof.” the court must be satisfied before Before granting administration pendente lite the court must be satisfied as to the necessity (d) of such an administra- Of what tor, (e) 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 sions), an administrator, that is, being proposed by either tration party. (ƒ) upon such occa granting adminis pendente lite. 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) And now by the court of probate act (s. 70), (h) it is enacted that "pending any suit touching the validity of the will of any deceased person, or for obtaining, recalling, or revoking any probate or any grant of administration, the court of probate may appoint an administrator of the personal estate of such deceased person.' The admust be an indifferent ministrator 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 it, where requisite, to a nominee presumed to be indifferent between the contending parties. (i) * Administrators pendente lite are the appointees of the court, (d) And accordingly the court will not 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. Mortimer v. Paull, L. R. 2 P. & D. 85. (e) Ib.; Young v. Brown, 1 Hagg. 54; Sutton v. Smith, 1 Cas. temp. Lee, 207; Maskeline v. Harrison, 2 Cas. temp. Lee, 258; Godrich v. Jones, 2 Curt. 453; Bellew v. Bellew, 11 Jur. N. S. 588; S. C. 34 L. J., P. M. & A. 125. (ƒ) 1 Add. 329. person: (i) 1 Add. 330; Young v. 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. See, also, 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, Ib. 333, 354. In the Queen's Proctor v. Williams, 2 Sw. & Tr. 353, a person who had been receiver in chancery of (g) Bellew v. Bellew, 34 L. J., P. M. & the same estates was, by consent, appointed A. 125; S. C. 11 Jur. N. S. 588. (h) Ante, 495. administrator pendente lite. |