executor affents to a 7. If an infant executor, after 17 years of age, affents to a legacy If infant before the debts are paid, the affent is void; or if he do any act that will be a devaftavit, or a wasting of the goods in another executor legacy beof full age, it thall not bind him. R. S. L. vol. 1. 44. cites Wood's fore 17, it Init. 558. is of no force to make it fettle in the legatee. Went. Off. Executors, 213, 214. 8. An adminiftration is granted during the minority of four infant children, one of whom, being a daughter, marries an husband who is of age. The adminiftration is not determined. 3 Wms.'s Rep. 81. Mich. 1730. Jones v. Com' Strafford & al'. S.P.accord ingly. 9. If adminiftration be granted during the minority of four infants, Brownl. 47. and one dies, this does not determine the adminiftration; contrary to the opinion in 5 Rep. Brudenel's cafe. 3 Wms.'s Rep. 89. Mich. 1730. Jones v. Com' Strafford & al'. (M) Adminiftrator durante Minore Etate. The Power of fuch Adminiftrator. [1. ADMINISTRATOR durante minore ætate may fell the goods of the teftator, and pay debts, and do all other things which an executor may. P. 42 El. B. R. per Cur.] · [2. An administrator durante minore ætate may have an action of trover and converfion of goods of the teftator, for he has more than the bare cuftody of them, for he has the property itself. Ad judged P. 42 Eliz. B. R. per Cur. SETHE AGAINST SETIE.] [3. If an administration durante minore ætate be repealed, and another made adminiflrator durante minore ætate, and the fecond adminiftrator brings the first administrator to account, and after releafes to him, yet the infant at full age may compel the first adminiftrator to account again to hin, and the first account to the fecond administrator, and his releafe fhall not be any bar of it; for the releafe of fuch adminiftrator is not good unless it be for tuch caufe for which he ought to make it. Mich. 10 Ja. per Cur.] * Fol. 911. 4. An adminiftrator durante minore ætate of an infant executor had judgment in an action of debt brought by him for money due to the testator, and the defendant being in execution, the infant executor came of full age. It was moved that he might be difcharged out of prifon, because the authority of the adminiftrator is now determined, and he cannot acknowledge fatisfaction, nor make acquit [103] tances, &c. Windham and Rhodes held, that the recovery and judgment was fill in force, but the party might be relieved by an audita querela. Godb. 104. pl. 122. Mich. 28 & 29 Eliz. C. B. Anon. accordingly, 5. Adminiftrator during minority of an executor cannot grant 2 And. 132. a term of which teftator died feifed during minority of executor, for pl. 78. S.C. he has but a special property ad proficuum executoris, but not a but that he general property as another executor or adminiftrator has, and may fell fat therefore his file of goods, unless they are bona peritura, or if it be beats or for neceffity for payment of debts which he is chargeable to pay, -5 Rep 2a VOL. XI. fhall b. Prince I grain, &c. S. C. He is rather v. Simpfon, fhall not bind; but he may fue and be fued, and yet his is but a limited authority, and like one that has letters ad colligendum, &c. there he may fell bona peritura as fruit, &c. Cro. E. 718. pl. 46. Mich. 41 & 42 Eliz. C. B. Price v. Simpson. a bailiff to the infant than an ad miniftrator, per Windham and Rhodes J. 3 Le. 278. pl. 367. Mich. 35 Eliz. C. B. feems to be Godb. 104. pl. 122. Mich. 28 & 29 Eliz. S. P. by Windham and Rhodes J. S. C. Whether 6. Administrator during minore ætate cannot affent to a legacy fuch admi- unless there be aflets to pay debts. 5 Rep. 29. b. Hill. affenting to 41 & 42 Eliz. C. B. Prince's cafe, alias Price v. Sympfon. niftrator's the devife of a term is good was doubted. Cro. E. 719. Price v. Simpfon. Roll. tit. Execution (P), pl. 1. cites S. P. adjudged 7. Administrator durante minore ætate of a leafe to commence. after the death of lady M. demifes it for 10 years (the infant being three years old), adjudged a good leafe, and it enured as an intereffe termini to commence after the death of lady M. but if adminiftration be granted fpecially, as in the cafe 5 Rep. 29. b. in PRINCE'S CASE, viz. adminiftrationem omnium bonorum ad opus, commodum & utilitatem executoris durante minore ætate & non aliter nec alio modo, &c. fuch fpecial adminiftrator cannot make such demife. 6 Rep. 67. b. Mich. 4 Jac. C. B. Sir Moile Finch's cafe. 8. If fuch adminiftrator recover in debt, and then the executor comes of age, he fhall fue execution. Cro. C. 227. Arg. cites 9 Jac. C. B. Prett's cafe. Mich. Jac. C. B. Wright's cafe. In cafe of S. C. cited Lutw. 344. 9. If teftator makes an infant executor and appoints B. to be executor during his nonage, expreffing it to be only for the benefit of the infant executor, he doubts whether this temporary executor ftands any whit refrained from what pertains to the power of an abfolute executor, and diftinguishes between an executor so made by the very proprictor of the goods, and an adminiftrator during minority conflituted by the ordinary. Went. Off. Executor, 214. 10. Keeling conceived, that fince 21 H. 8. cap. 5. the cafe of administration during minority of one next of kin, and to his use and profit, is now merely as a bailiff, and all one with an adminiftrator during minority of an executor, and fo his releafe is not good, he having but a bare authority; and to this whole Court agreed, Windham abfente; judgment for the plaintiff nifi. 2 Keb. 30. pl. 62. Pafch. 18 Car. 2. B. R. Thackstone v. Hulmlocke. 11. Administrator durante minore ætate cannot fell leafes unlefs fale of ftock there is not fufficient otherwife to pay the debts of teftator, or other reasonable caufe. 2 And. 132. pl. 78. Mich. & 41 in the Eaft India Company by fuch admi Prince v. Simpfon. 42 Eliz. niftrator, and the buyer having full notice that it was the ftock of the infant, the fale was decreed to be fraudulent. Fin. R. 293. Pafch. 29 Car. 2. Munn v. Dunkin. [104] Ibid. 475. 12. A fuit begun by fuch adminiftrator is determined by the age of Id. Keerer the infant, fo that the infant must begin de novo unless a decree be alked the made, made, and then if an account be before a mafter, the infant on a bar if any bill by him for that purpose may be allowed to proceed; per had ever fuch thing Ld. Wright. Ch. Prec. 174. pl. 145. Mich. 1701. Jones v. been done, Baffet. and it was answered that the like had once been done by Ld. C. Somers in the cafe of DAVIS V. DAVIS, where an adminiftrator durante minore ætate proceeded to a decree and account before the Mailer, and then the infant coming of age and praying, it was allowed to go on though much oppofed, but here it would not be granted; for Davis's cafe had proceeded to a decree, and though the plaintiff there was, an adminiftrator durante minore ætate, yet it was cum teftamento annexo, which by him made fome difference; and the infant there had brought a bill to have the benefit of the faid proceedings, and offered to be bound by them. (M. 2) What Actions Adminiftrator Durante Minore Erate, or other temporary Adminiftrators, may bring, or be liable to; and of Pleadings by them. 1.H Anon. E cannot bring an action of debt; for he is but a fervant or S. P. by J. to which Windham Kodes agreed. Godb. 104. pl. 122. Mich. 28 & 29 Eliz. C. B. 2. Note, it was faid by Dyer, that an adminiftrator durante But the minoritate cannot bring action of debt; for he is but as a fervant or bailiff in fuch cafes. Ow. 35. Mich. 13 & 14 Eliz. Anon. contrary seems admitted; judgment being given against him for not averring that the executor infant was under the age of 17, fee 5 Rep. 29. Hil. 46 Eliz. C. B. Piggot's cafe.- -Cro. E. 602. Pigot v. Galcoyn and Furthee, were the cafe war, that the testator made an infant executor, the plaintiff took out administration durante minore ætate, &c. and brought an action of debt on a bond due to the teftator, and averred that the infant exccutor was living and within the age of 21 years; now because it did not appear that this administration was granted whift the infant was under 17 years, therefore the plaintiff was nonfuit. S. C. cited per Cur. 5 Mod. 395. Pasch, 19 W. 3. in the cafe of Atkinfon v. Cornith.. S. C. cited Brownl. 46. S. C. cited Freem. Rep. 425. pl. 596. Pafch. 1676. Mich. 27 Eliz. Ch. J. he 3. Adminiftrator during minority cannot fue or be fued by the Per Dyer common law. Per Periam J. 4 Le. 103. pl. 209. C. B. in cafe of Kightley v. Keightley. cannot bring Ow. 35. Mich. 13 & 14 El z. 4. Adminiftrator during minority of an executor brought an action of debt on bond to firft teftator; but having brought it as adminiftrator of the first executor, it was held ill, for he thould have brought it as adminiftrator of the firit tcitator, and for that reafon the judgment was reverfed in error. 4 Le. 58. pl. 147. Trin. 31 Eliz. B. R. Limver v. Evory. 5. Such general adminiftrator durante minore etate fhall have action to recover debts and duties (for the intereft of the actions is in him, and shall be liable to all actions, for during the time the teftator died quafi inteftatus), and he may make leafes and demifes, I 2 and Anon. Cic. E.211, Limer v. Every, S.C. adjudged, jig 212. pl. and inly. + Orig. is (did not.) and they fall be good till the executor is 17, and fome fay till he enters. 6 Rep. 67. b. Mich. 4 Jac. C. B. Sir Moile Finch's cafe. *6. An action was brought against adminiftrator durante minoritate of an executor, and did not aver that the executor was ftill under 17, 128. Tiin. and the opinion was that he + need not. But otherwife of plaintiff Jac B.R. being fuch an adminiftrator. Hob. 251. Hill. 13 Jac. Rot. 970. Yelv. Croft v. Walbanke, Carver v. Haflerig. S. P. adjudged that the plaintiff need not fhew it, because he is a stranger to the power given to the defendant, and may not know what age the infant is of; befides the defendant by joining of iffue in this cafe did admit that his power continued; for otherwite the exception taken by the plaintiff fhould be pleaded by the de endant in difcharge of himit, it lying properly in his notice, and it being for his own benefit to allege it.. - 2 Roll. Rep. 200. Mich. 18 Jac. B. R. Aldred v. Walthall, S. P. Cro. J. 590 pl 12. Waithali. Aldrich, S. C. & S. P. held accordingly. Roll. Rep. 400. pl. 23. Trin. 14 Jac. B. R. Hail v. Salvin and Damport, S. P. adjudged and affirmed in error. 4 Mod. 14. & M. in B.R. Hodge v. Clare, S. C.- cites Lutw. 7. The Court did feem to agree, that if an executor durante minore atate do pay debts as an executor ought to do, and for what remains in his hands, if he account for it, and deliver it over to the heir, yet he fhall not be chargeable to any of the creditors. Freem. Rep. 150. pl. 171. Pafch. 1674. Anon. 8. The declaration was as adminiftrator during minore ætate of three, whereas the adminißration was granted during the minority of four, and it did not appear whether the fourth was alive or not, or within the age of 17; whether this be good after verdict? and the Court feeming to be divided, the defendant agreed to accept a new declaration. Sid. 185. pl. 8. Pafch. 16 Car. 2. B. R. Bennet v. Baud. 9. B. devifes a legacy to C. and makes D. his executor, and dies D. makes E. an infant his executor, and dies, and adminiftration is committed to F. durante minore atate of E.-C. the legatee fues F. in the fpiritual court for his legacy; and F. moves for a prohibition; but the Court denied it; for although an adminiftrator of an executor is not an adminiftrator to the firft teftator, yet an adminiftrator durante minore atate is loco executoris, and may be fued as an executor of an executor may. Freem. Rep. 288. pl. 335. Trin. 1675. Anon. 10. In a fcire facias brought by adminiftrator durante abfentia of Hill. 2 W. another, the defendant on oyer of the feire facias demurred, and exception was taken that fuch adminiftration was void; but the Court held clearly that fuch adminiftration was grantable by law, and that it may be a great conveniency fo to do; for if the next of kin be beyond fea, and fuch adminiftration could not be granted, the debts due to the inteflate might be loft. And the Court held likewife, that after the return of the next of kin a payment of a debt to fuch an administrator before notice is good. And further, that though perhaps actions brought by fuch administrator fhall abate by the return, &c. yet actions against him fhall not. Cited by Serjeant Lutwich. Lutw. 342. as adjudged. Pafch. 3 W. & M. in B. R. Clare v. Hedges. 6 Mod. 364 342. S. C. and 4 Mod. 14. but fays reported in that as it is 4 Mod. it is not law, nor agreeable to the roil. But fays, that fure it ought to be averred that the abfence continues according to 5 Rep. Pigot's cafe.. It ought to be averred that the party was then at fuch a place out of the realm. L. P. R.-. Raym. Rep. 1071. cites 4 Mod. 14. Hodge v. Clarg, and fays, that upon fearch of the roil in that cafe, there is a full averment that the perfon, during whofe abfence, was in partibus tranfmarinis, and no ground for the objection. The Ch. J and Powell faid, that the administration durante abfentia must be intended of an abfence out of the realm, and therefore the adminiftrator plaintiff in his declaration ought to aver, that the executor is out of the realm. And the Ch. J. faid, that it was reafonable there should be such an adminiftrator, and that this administration ftood upon the fame reason as an administration durante minore ætate of an executor, viz that there fhould be a perfon to manage the eftate of the teftator, till the perfon appointed by him is able. And he faid, upon the obfervation upon 4 Mod. fee the inconveniencies of thefe fcamb ing reports, they will make us appear to pofterity for a parcel of blockheads. 2 Ld. Raym. Rep. 1071, 1072. Mich. 3 Ann, in the cafe of Slater v. May. [106] 11. An adminiftrator pendente lite of a will brought an affumpfit Gibb. 202. on a promiffory note, and recovered judgment in C. B. and upon v. Walker. error brought in B. R. judgment was affirmed, and it was held S. C. adjorthat the ordinary had power to grant fuch administration, and that natur. Ibid. the reafon is the fame as to that of adminiftration durante minore 257 S.C., adjornatur. ætate, to prevent the many inconveniences which otherwife might But the rehappen, as lofs of debts, &c. 2 Wms.'s Rep. 576 to 590. Trin. 1731. Walker v. Wollafton. Wollaston porter fays, it probably was for no other end than that the judgment of the Court might be unanimous in the determination of this point, one judge not agreeing with the reit. Earnard. Rep. in B. R. 423. S. C. adjornatur, and ibid. 467, 468. S. C. Three justices feemed very clear of opinion to affirm the judgment, but one justice doubting upon an authority in Carth. 153. where fuch administration is exprefsly refived to be void, the matter was ordered to ftand over. —-2 Barnard. Rep. in B. R. 14. adjornatur. Ibid. 62. S. C. and judgment affirmed. (M. 3) Durante Minore Ætate. After Judgment recovered, and before or after Execution Executor comes to 17, what is to be done. A Dminiftrator durante minore ætate of K. had judgment on a bond made to the teftator. Afterwards K. the executrix came of age and married, and then she and her husband brought a sci. fa. on that judgment. The better opinion of the Court was, that the fei. fa. did not lie. Brownl. 59. Mich. 3 Jac. King v. Death. argued, fed 2. Executor durante minore ætate, or till the daughter fhould be 2 Brownl. married, and then the executorfhip to ceafe, and the daughters 144. S. C. to be executors gets judgment on a bond made to, the teftator, adjornatur. after which the daughters married the plaintiffs. The daughters fhall have this judgment as executors, for they are in privity and in by the teftator, and not like an adminiftrator who is in by the ordinary after the death of executor. Owen, 134. Mich. 9 Jac. C. B. Kemp and James v. Lawrence. 3. Adminiftrator durante minore ætate of J. S. obtained judgment, and brought a fcire facias against the bail, who pleaded that 7. S. the executor was now of full age. Whereupon the plaintiff demurred, and adjudged no plea, because the recognizance entered into by the bail was to the adminiftrator himself by name, though he had administration durante minore ætate tantum, and the infant's coming to the age of 17 years does nor hinder the plaintiff from fuing the feire facias against them. But per Hale, if he had taken execution upon the principal judgment after the infant came of age, it would have been a doubt if it ought to be fued by |