After the infant is at age and taken upon him or by the infant. 2 Lev. 37. Hill. 23 & 24 Car. 2. B. R. Enbrin v. Mompeffon. *(M. 4) What the Executor at 17 may do against fuch Adminiftrator. I. OR RDINARY will not let infant executor, prove the will, but grants administration to a stranger. Infant executor at age proves the will. He cannot have action of account against the adminiftrator for the goods, but he may have detinue, or may fue in Court Chriftian. And. 34. pl. 86. Hill. 36 H. 8. Anon. will, the goods of teftator in fpecie in the hands of the adminiftrator are now affets in the executor's hands, for he may bring trover and conversion for them. Roll, 921. pl. 15. Chandler v. Tompion. him the executor fhip of the Noy, 86. S.C. & S.P. agreed accordingly. Cro. C.167. v. Norga c, by 3 juftices, but Hyde doubt. ed-Roll. 2. Where an adminiflrator durante minore atate wafles the goods of the teftator, he cannot be charged as executor of his own wrong when the infant executor comes of the age of 17 years, becaufe at the time he had lawful power to adminifter; but in fuch cafe he shall be charged upon the fpecial matter; per Doderidge and jones. Lat. 160. Trin. 2 Car. Palmer v. Litherland. (M. 5) Adminiftration De Bonis Non. Grantable; in what Cafes; and to whom. I. IF F executor makes an executor and dies, his executor fhall adminifter the goods of the firft teftator; but contra of executor of an adminiflrator; for if an adminiftrator dies and has an executor, yet his executor fhall not administer to the goods of the inteftate, but they are in the ordinary to commit administration anew. Br. Administrator, pl. 7. cites 34 H. 6. 14. 2. Judgment was hed by J. S. againfi W. R. as executor, and be◄ pl.13. Snape fore fatisfaction the executor dies intelate, and adminiftration of the S. C. held goods of the executor, and de bonis non, &c. of the firft teffoter is accordingly granted to A. J. S. fued a feire facias against the faid A. as administrator of the teftator and executor. After verdict for the plaintiff it was moved in arrest of judgment that the judgment against the executor is determined by his death without a teftament, and that A. is not privy to the feire facias against the executor, as if one had recovered as executor and died inteflate, no feire facias lies for the adminiftrator. Three juftices femed that this is well enough, becaufe there is a difference between a recovery against ard by an executor, but Hyde doubted. Judgment was given according to the first opinion. jo. 214. pl. 2. Mich. 5 Car. B. R. Norgate v. Snape. Abr. tit. judged. 3. The obligee made his wife exccutrix and died, and afterwards fee did inteflate, and then adminiftration of her çû. te ruas granted to T. 8. she trought an action of debt on the bold, as cili ingfreter to the wife, and had judgment; but it was reverfed in error nifi, &c. because he ought first to have taken out adminiftration de bonis non of the obligee, and as fuch to have brought the action. Sty. 225. Trin. 1650. B. R. Ley v. Anderton. The 4. The hufband died and left his widow within the age of 17 years, [108] and adminiftration durante minore atate was granted to her father, against whom Y. brought an action of debt, and had judgment. father died, and the widow being now of full age and married again, adminiftration de bonis non, &c. was granted to husband and wife, against whom Young, who had the judgment, brought a feire facias, &c. and adjudged well brought, because it is for a debt from the firft teftator; and a diverfity was taken between a feire facias against an administrator of an adminiftrator, and a feire facias by an adminiftrator of an adminiftrator; for if adminiftrator has judgment and dies, the fecond adminiftrator cannot have feire facias because he claims paramount the first adminiftrator who had the judgment, being in by the teftator. But fcire facias may be fued against the fecond adminiftrator on a judgment had against the first adminiftrator, becaufe both claim as adminiftrator to the inteftate, and by confequence both are liable, and fo no inconvenience, but this fcire facias ought to be for the principal judgment only, and not for damages and ccfts. 2 Sid. 122. Mich. 1658. B. R. Young v. Jolland. 5. Adminiftrator obtains a judgment and makes an executor and dies, the executor fhall have a feire facias upon the judgment, and not the adminiftrator de bonis non of the first inteftate. 2 Lev. 101. Pafch. 26 Car. 2. B. R. Drew v. Baily. 6. If feme be executrix and legatee, adminiftration de bonis non ought to be to the bufband; if the be not legatee, and others are, it ought to be given to them; if there be no legacies to next of kin to firft teftator. 12 Mod. 306. Mich. 11 W. 3. Richardson v. Seife. 7. Debt on bond. Defendant pleaded non cft factum; whereupon ifiue was joined, and a verdict was found for the plaintiff. It was moved in arreft of judgment that the action will not lie for the adminiftrator of an executor; there must be an adminiftration de bonis teftatoris non adminiftrat' by executor. The Court granted a rule to stay the entry of judgment upon the verdict till further order. Barnes's Notes in C. B. 326. East. 12 Geo. 2. Baftard, administrator of Baftard, who was executor of Bastard, v. Jutsham. (M. 6) Adminiftration De Bonis Non. What fuch Adminiftrator fhall have. ́1· A. 1 4 den, Ibid. 113. Denne v. Son-ke.5.2. & S. P. Cro. C. S. C. ad den, otherwife if there was a legacy of a particular thing; quære what difference. Het. 105. Trin. 9 Car. C. B. Denne v. Burrough. 2. If executor has extent on a ftat. to teftator, and has poffeffion 450. pl. 23. by liberate and dies inteftate, adminiftrator of the firft teftator fhall have bencfit of it; per Jones J. Jo. 386. Paích. 12 Car. B. R. in cafe of Cleve v. Vere. jorratur, 457. 3 Vent. 275. S. C. held that the executor hould have the rent 3. Adminiferater by will gives inteftate's geeds, of which he is poffefled. They will not pafs; and by his grant of omnia bona & catalla fua, a term which he has as adminiftrator does not país, becaufe not fua; Arg. Cart. 134. Trin. 18 Car. 2. C. B. 4. The entry of the decretal order is fufpended by adminiftration de bonis non. 3 Ch. R. 33. 2 Dec. 21 Car. 2. Pew v. Cadmore, 5. An adminiftrator possessed of a term makes a leafe for years of part of it, referving a rent, and makes his executor and dies; the executor brings debt for this rent; the queftion was, whether or no it would lie, because the reverfionary part of the term did not come to the executor of the adminiftrator, but did belong to the adminiftrator de bonis non of the firft teftator? But the Court did incline that it quould lie upon the contract, though he could not diftrein for it, for the adminiftrator de bonis non could not have it, because he came in paramount the refervation. Freem. Rep. 392, 393. pl. 507. Pasch. accordingly. 1675. Drue v. Baylie. tor de bonis 2 Lev. 100. S. C. held -Where an executor makes a leafe rende ing rent, his administrator shall have it, and not the`adminiftrator de bonis non. Vern. 94. in pl. 8c. Mich. 1682. ches the caule of Davie v. Dr.w. 2 Freem. 6. A. poffeffed of a term of years died inteftate. B. his widow took adminiflration, but was compelled by fentence of allocation in the fpiritual court to pay 851. to the relations of A.-B. the adminiftratrix affigned the term to D. in truft for herself for life, and by her will devited the fame to D. and made him fole executor. Decreed that D. deliver up the original leafe, and all other deeds relating thereto, to the adminiftrator de bonis non, that he 'may be enabled to proceed at law to try the title. Fin. R. 59. Hill. 25 Car. 2. Preftidge v. Bridgman. 7. Adminiftrator mortgages a term of the inteftate's, and makes A. his executor and dies. B. takes out adminiftration de bonis nen to pl.176.S.C. the first inteftate, and claims the residuary intereft and truft of the Rep. 139 in totidem verbis, S.P.adjudg term, and prays redemption. But redemption was decreed to A. exccutor of the firft adminiflrater, who had aliened the whole eftate in law of the term, and was not poffiffed in auter droit, nor of any part of the interes thereof but in his own right, and fo it fhall go to his exccutor, and not to B. the adminiftrator de bonis non. Chan. Cafes, 224. Hill. 25 Car. 2. by Ld. K. Finch. Butler v. Bernard. 8. Executor makes a lecfe, rendering rent; his administrator fhall have it, and not the adminiflrator de bonis non; faid to be refelved in the cafe of DAVIE AND DREW, ALIAS DREWRY, in B. R. B. R. and afterwards in Canc. Vern. R. 91. Mich. 1682. in cutor, cafe of Noel v. Robinson. 9. Adminiftrator obtains a decree by confent of defendant, who was his next of kin, and before inrolment dies inteftate. Finch C. denied inrolment now, for the title of the adminiftrator is gone, and belongs not to adminiftrator of the plaintiff, but to the defendant as adminiftrator de bonis non. 2 Chan. Cafes, 247. Hill. 30 & 31 Car. 2. Warren v. .... 10. Adminiftrator de bonis non of the conufee of a flatute had agreed with the conuior o affign in confideration of a sum of money, which upon agreement the conufors had covenanted to pay him, his executors, or adminiftrators; administrator died. Decreed the money to be paid to the executor of the adminiftrator, and not to the adminiftrator de bonis non, although before the extent it could not be aligned at law; fed nota that there were not debts of the first inteftate appearing. 2 Vent. 362. Pafch. 35 Car. 2. in Canc. Anon. Vent. 259. Norton v. Harvey. 11. Dr. Good had taken fecurities in his own name in truft for [110] Thomas Cook, for divers fums of money, and makes Good his executor, and dies. Thomas Cook afigns the faid money, and all bonds taken in Good's name in truft for him, to Mason, and then dies inteftate. Richard Cook, adminiftrator to Thomas, affigns bis letters of adminiftration to Man, and then Richard dies inteflate. Ann, daughter of Richard, and wife to Good the defendant, takes letters of adminiftration of the goods of Thomas Cook, unadministered by Richard her father; Mafon prefers a bill against Good as executor to Good the truftee. Good the exccutor claims in right of his wife. Holden upon a plea and demurrer in Chancery, by Lord Keeper North, that the intereft of Richard well paffed by the affignment of his letters of adminiftration to Mafon; and fo likewife holden at a hearing before the Mafter of the Rolls; and fo decreed. Skin. 232. Pafch. 1 Jac. 2. B. R. Mafon v. Good. Talcot and held accord 12. Rent of 60l. being due to A. he died inteftate, leaving B. his ad- Vern. 473. miniftrator. B. and the tenant came to an account, and the tenant pl 463. pays B. 291. and gives him a note for 311. and then died inteflate. And Parker v. the fole queftion was, whether the adminiftrator of B. or the admi- Shaw, S. C. niftrator de bonis non of A. fhould have this rent? And it was ruled, that the adminiftrator of B. fhould have it; for by taking a note for it, he bed altered the property fo as to make it due to him in his own right, unless there had been any debts of the first inteftate un paid, and then this Court would have made it liable to satisfy those debts. 2 Freem. Rep. 100. pl. 100. Mich. 1687. Anon. 13. A. who is executrix and refiduary legatee to J. S. and J. N. makes B. her executor, and devifes to B. and C. and D. all fuch goods as were J. S. her teftator's, and which she had not before devised in her will, and dies; B. refufed. Decreed that administration belongs to the next of kin of the executrix, and not to the next of kin to J. S. and fo it should have been if A. had died before probate of J. S.'s will, and that C. and D. fhould have whatever remained ingly. of of the eftate of J. S. for whoever takes adminiftration of that are but trufces for them. N. Ch. R. 172. Anon. 14. Quare if eftate per auter vie fhall go to adminiftrator de bonis non, for it is not within the letter of the law, and in the argument of this cafe it was made a doubt. Carth. 376. Pasch. 8 W. 3. B. R. Oldham v. Pickering. 15. Executrix of obligee marries obligor; he may pay the money to her as executrix, becaufe if fhe lay by the money fo paid to her by itself, the adminiftrator de bonis non of her teftator (if the dies inteftate) fhall have that money as well as any other goods that were her teftator's, for if the goods of teftator remain in fpecie they fhall go to his adminiftrator de bonis non; but if the husband feifes the money it will be his, and will be a devaftavit. I Salk. 306. per Holt Ch. J. Mich. 11 W. 3. C. B. in cafe of Wankford v. Wankford. 16. Where executor recovers in a cafe in which he need not name himfelf executor, and dies inteftate, or makes an executor who will not prove the will, his executor or adminiflrator as to the first teftator's goods fhall fue execution, and would be liable to cofts for nonfuit of him, and not the adminiftrator de bonis non. 6 Mod. 181. Trin. 3 Ann. B. R. Jenkins v. Plume. 17. A promiffery note was made by a debtor of the teftator to an executor (ut executori), fuch note will go to the adminiftrator of the executor, and not to the administrator de bonis non, &c. For it is a new contract. 10 Mod. 315. Pafch. 1 Geo. 1. B. R. Betts v. Mitchell. 18. A. lent money on bond to B. who dying inteftate, C. took out adminißration to him; after which C. dying, A. took out adminiftra[III]tion de bonis non, &c. to B. and it was determined (inter al') that A. might, out of the affets of B. retain for fuch bond-debt contracted before he took out adminiftration; and though A. happened to die before he had made any election in what particular effects he would have the property altered, yet the Court faid it must be prefumed he would elect to have his own debt paid firft; and this being prefumed, there would remain no difficulty as to altering the property; for as the executors of A. were to account for the affets of B. they muft on the account deduct to the amount of the money lent by A. to B. 3 Wms.'s Rep 184. in a nota of the reporter's, cites Mich. 1720. at the Rolls, Weeks v. Gore. 19. If executor dies inteftate, fo much of the teftator's perfonal cftate as remains unadministered must go to the teftator's next of kin, viz. to the administrator de bonis non, and not to the adminiftrator of the executor; per Powis J. in Chancery. 2 Wms.'s Rep. 161. Trin. 1723. 20. If a man marries an executrix, and he dies inteftate, the teftator's perfonal eftate must go to the adminiftrator de bonis non, and not to the husband; per Powis J. in Chancery. 2 Wms.'s Rep. 161. Trin. 1723. and faid it was fo determined in the cafe of Lady Aftry executrix of Sir Samuel Aftry, who had married Mr. Harcourt. 21. If an executor dies inteftate, all the perfonal eflate, the property where is not altered, fall go to the adminiftrator de bonis non, Eze. and |