6. Will under probate ecclefiaftical is not triable in Chancery, whether there be a revocation of it or not. But Ld. Chancellor bid them go to the ecclefiaftical court, and prove it there. 2 Ch. Cafes, 178. Mich. 2 Jac. 2. Attorney General v. Ryder. 7. Will of perfonal eftate only, and proved in the fpiritual court, though gained by fraud, yet cannot be controverted in equity; but if a party claiming under fuch will, comes for any aid in equity, he fhall not have it. 2 Vern. Rep. 76. Trin. 1688. Nelfon v. Oldfield. 8. A legacy in a will is forged. The executor proves the will in the fpiritual court, it relating only to perfonal eftate, and after brought a bill to be relieved against this legacy in equity, but Cowper C. difmiffed the bill with cofts. For the executor might have proved the will in the fpiritual court, with a particular refervation as to this legacy, and faid that his remedy must be there. Wms.'s Rep. 388. Mich. 1717. Plume v. Beale. 9. Perfon who proved a will in the fpiritual court, by which he favears the teftator was of found memory, after controverts the fame will at law as to the real eftate, upon which an iffue was directed, compos or non compos, and found non compos. MS. Tab. 1717. April 1. Montague v. Maxwell. 10. Executor may traverfe the executorship of another, for whether a will or no will is a queftion triable by a jury, as is agreed 8 Rep. 134. MER. TRESHAM'S CASE. 9 Rep. ABBOT DE STRATA MARCELL'S CASE, and the reafon is, becaufe the spiritual court had not the original jurifdiction of the probate of wills, and because as to trial the temporal courts have quafi a concurrent jurisdiction; and this is not like the cafes, 1 Sid. 359. and 1 Lev. 235. that the probate of a will concludes a perfon from faying there was no fuch will; but notwithstanding this matter may be brought to trial; for the producing a will under probate is only evidence that there was such a will; and though it is evidence of fo ftrong a nature that no evidence shall be admitted against it, yet to plead that fuch a will was proved is no reafon why this matter fhould not be tried. Therefore judgment was given for the plaintiff. Comyns's Rep. 150. 152. pl. 102. Mich. 5 Ann. C. B. Anon. 11. Will concerning perfonal eftate proved in the Spiritual court; [66] refpondent having a former will in his favour brings his bill to dif cover by what means the latter will was obtained, and to have an account of the perfonal estate, and whether the teftator was not incapable and impofed upon. Defendant demurred, because it belonged to the fpiritual court only to prove the validity of wills, and the former will was not proved in the fpiritual court as the will in his favour was. The demurrer was over ruled. Note, It was mentioned in the refpondent's cafe, that the appellant, who was the executor of the proved will, was only in the nature of a trustee for the refpondent. MS. Tab. Feb. 6th, 1723. Andrews v Powis, (C) Administration. In what Cafes it fhall be granted. Br. Exe- [1. IF all the executors refufe to administer, administration shall be granted. 21 E. 4. 24. † 20 H. 6. 1. b. 38 H. 6. 8. cutor, pl. 117. cites S. C. but not S. P. but fays, that if a man makes for now the teftator dies inteflate. 19 E. 3. Covenant, 24. 50 E. 3.9. But otherwife it is if one refufe and another proves the teftament. 9 Rep. 37. HENSLOE'S CASE.] 20 executors, and one proves the teftament, it is fufficient for all if the cthers will agree to it, and the refufal before the ordinary is no eftoppel to them to adminifter after; per tot. Cur. And they had no regard to the spiritual law, which is contrary in this matter. -Br. Executor, pl. 117. cites 21 E. 4. 24. But if there are two executors, and he that proves it dies, and he that refused before the ordinary will not adminifter, the ordinary may fequefter. Ibid. + Fitzh. Executors, pl. 15. cites S. C. Mod. 213. Pafch. 28 C. B. Par. ten v. Bafe [2. If an executor adminifters before probate of the will, and after refuses to prove the will, and to adminifter when the ordinary makes procefs against him, the ordinary may grant administration, H. 7. 14.] den, S. P. held contra, and that the committing of administration in fuch cafe is a mere void act.S. P. by Holt Ch. J. accordingly, and cites S. C. 1 Saik. 308. [3. If a man makes an executor, but it is not known, or concealed, the ordinary may grant administration, and this shall be good till the other prove the will. 7 E. 4. 12. b. 13.] [4. But if a man makes an executor, the ordinary cannot grant administration before refufal of the executor. 3 H. 4. Administrat. 22. adjudged.] [5. If A. makes a promife to B. and after B. dies inteftate, and adminiftration of his goods is granted to C. who dies inteftate after, and then administration is granted to D. for the goods of C.-D. cannot have action on the promife made to B. as adminiftrator to C. for he is not administrator to B. inafmuch as administration is not granted to him of the goods of B. unadminiftered by C. Adjudged per Cur. upon demurrer, Mich. 15. Car. B. R. GOSLING AGAINST OSBOURN. Intratur Trin. 15 Car. Rot. 926.] [6. If all the executors refufe before the ordinary, administration cutor, pl. fhall be granted. 21 E. 4. 24. 20 H. 6. 1. b. 36 H. 6. 8.] [67] Br. Exe 117. cites S. C. but not S P. though it feems admitted there.- -Where executor adminifters, and after refufes, if adminiftration be granted during his life it is void; per Holt Ch. J. 1 Salk. 308. Mich. 11 W. 3. C. B. in cafe of Wangford v. Wangford, cites Mod. 213. Parten's cafe. || If A. makes B. [7. If an executor dies inteftate, administration ought to be his executor granted of the first teftator, for now he dies inteftate. || 21 E. 4. 24 and dies, and B. 26 H. 8. 7.] proves the teftament and dies, the ordinary may fequefter the goods of A. as well as of B. for it is the fame thing now as if A. had died inteftate at the first. Br. Executor, pl. 117. citęs S. C. [8. But [8. But if an executor after adminiftration dies inteftate, and the ordinary grants adminiftration of all the goods of the executor, he may adminifter the goods of the firft teftator. 10 E. 4. I. (Quære this.)] (C. 2) [What Power the Executor, or Administrator of an Executor has, as to the Goods of the first Teftator.] So where a man mkes two execu [9. If an adminiflrator makes his executor and dies, his executor fhall not have the administration of thefe goods, but a new admi- two niftration ought to be granted of them. 34 H. 6. 14. D. 32 H. 8. 47. adjudged 11 Rep. 5. BRUDNELL'S CASE. 9. b.j tors and dies, the one execu tor makes an executor and dies; the other furvives and dies inteftate; the executor of the executor fhall not meddle; for the power of his teftator was determined by his death, and by the furvivor of the other; fo that now the ordinary fhall commit the adminiftration of the goods to the executor who furvived, & de bonis non adminiftratis of the first teftator. Br. Executors, pl. 149. cites 32 H. 8. [10. If an executor before probate of the will of his teftator makes Where the an executor and dies, the executor of the executor cannot take upon executor himself the execution of the first teftament, but adminiftration of adminifterthe goods of the firft teftator cum teftamento annexo fhall be granted. ing and beD. 22 & 23 El. 372. b. faid by the judges of the prerogative bate, his court to be the ufe and cuftom of the faid court of prerogative, executor and agreeable to the law by the opinion of Dyer, to which the cannot Court gave credit.] fore pro prove the will of the firft teftator, because he is not named executor to him in the will, and no one can prove the will but who is named executor in the will. The executor's not proving the will does, upon his death, determine his executorship, but not avoid it; per Holt Ch. J. 1 Salk. 309. in the cafe of Wankford 7. Wankford. 11. If the ordinary commits adminiftration to J. S. he may refufe the adminiftration, and then the ordinary may commit it to another; for he cannot compel him to adminifter. Br. Adminiftrator, pl. 7. cites 34 H. 6. 14. Br. Debt 140. Pl. C. 231. 12. If a man makes an executor who adminifters, and they will not Br. Execucome to prove the teftament when the ordinary makes process against tor, pl. 102. them, then he may lawfully commit the adminifiration over; per Townsend J. Br. Adminiftrator, pl. 32. cites 4 H. 7. 13. 13. A. makes his will, and directs that one year after his decease B. fhall be executor. The ordinary may grant adminiftration in the mean time, and the fale or gift of the goods by him within the year fhall never be avoided by the executor after the year. Pl. C. 279. b. Pafch. 7 Eliz. in cafe of Greyfbroke v. Fox. 14. Two executors being in fuit which of them was the true executor, it seems that the ordinary cannot grant administration pendente lite. Mo. 636. pl. 874. Hill. 37 Eliz. C. B. Robin's cafe. S. C. cited is a contro- fpiritual court concerning the right of administration, and where it is concerning a will; for in the first cafe an administration granted pendente lite is good, but otherwife where the controverfy is concerning a will; for he that comes in under a will shall avoid all that which an adminiftrator can do. Carth. Carth. 153. Trin. 2 W. & M. in B. R. Frederick v. Hook. -Per three juftices against one contra, and faid that neither ROBIN'S CASE nor the cafe of FREDERICK V. HooPE were adjudged cafes. Gibb. 260. Pafch. 4 Geo. 2. B. R. Wollafton v. Walker.. -S. P. per three justices, that neither of thofe cafes were adjudged, and that the reafon given in Carth. did not maintain the opinion. 2 Wms.'s Rep. 590. in cafe of Walker v. Woollafton.. 2 Barnard. Rep. 63. Lee J. faid he had ordered the roll of that cafe of Frederick v. Hooke, Carth. 153. to be fearched, and accordingly it was found that that plea in abatement in relation to the validity of the administration was there waived, and judgment was actually entered for the plaintiff, fo that he fuppofed there was only a rule to fhew caufe in that cafe. Salk.309. Holt Ch. J. S. C. cited by Holt Ch. J3 Salk. 307. Hill. 1 Ann. 15. If a man enters into religion and makes no executors, the ordinary fhall grant administration. 9 Rep. 40. a. Trin. 42 Eliz. in Henfloe's cafe. 16. If all the executors refuse, administration may be granted to another, and none of the executors can adminifter, as where one of the executors proves the will. 9 Rep. 37. a. Trin. 42 Eliz. Henfloe's cafe. 17. If one makes two executors, one 17 years old, and the other under, adminiftration during the minority is void, because he of 17 may execute the will. Brownl. 46. Mich. 14 Jac. Anon. 18. If adminiftration be granted during minority of two infants, and one dies, yet the administration continues. Brownl. 47. Mich. 14 Jac. Anon. 19. Ordinary may grant adminiftration of the goods of an alien, if no will. Palm. 14. Arg. Trin. 17 Jac. B. R. 20. Executor of executor fhall be allowed to be executor to the first teftator; but per tot. Cur. this is to be understood when first executor proves the will, Palm. 156. Hill. 18 Jac. B. R, 21. Upon English bill the cafe was, that several executors were made, and one proved the will, and the rest refused; and he that had proved the will died, and another perfon took out letters of administration and preferred his bill in this court. And the Court held clearly that by the proving of the will by one, they are all executors, and although he that proved the will die, yet no other perfon can adminifter during the lives of any of the reft. And it does. not appear that they who refufed are dead; whereupon the bill was difmiffed. Hard. 111. pl. 2. Pafch. 1658. Pawlet v. Freak. 22. Defendant in execution was the next of kin to the plaintiff inteftate; and a motion was made for a habeas corpus to bring her from the counter in this court of B. R. that having administered to her creditor fhe might be difcharged; but it was denied, for fhe could not be thus difcharged, because non conftat de perfona; neither can fhe give a warrant of attorney to acknowledge fatiffaction; therefore let her renounce the adminiftration and get it granted to another, and then fhe may be difcharged by letter of attorney from fuch adminiftrator. 2 Mod. 315. Trin. 30 Car. 2. B. R. Joan Bailie's cafe. 23. Ecclefiaftical judges may provide for the difpofition of bona peritura in cafe of neceffity pendente lite. Arg. Vent. 313. Trin. 29 Car. 2. in cafe of Baker v. Baker. 24. Administration granted where there is a will and executors but concealed, the administration is void though executors renounce. 2 Lev. 182. Hill. 28 & 29 Car. 2. B. R. Cunningham. Abram v. 25. W. and R. were two brothers, a legacy of 100l. was devifed [69] to R. who went beyond fea, and after five years abfence, the other fuggefting he was dead, took out adminiftration, and fued for the legacy. The Court decreed the rool. and intereft, to be paid to the plaintif ever fince R. went away, the plaintiff giving fecurity that it fhall be repaid to R. if ever he fhould return; which fecurity to stand for three years and no longer; but the plaintiff's own fecurity to ftand for ever. Fin. Chan. Rep. 419. Hill. 31 Car. 2. in cafe of Norris v. Norris. 26. The refidue of my goods I give to my loving executor (with a blank), administration must be granted. Pafch. 1681. Winn v. Littleton. 27. Where an executor dies before probate of the will, his executor cannot prove it, but administration cum teftamento annexo must be granted to the refiduary legatee, if any, or elfe to the next of kin. Vern. 200. pl. 196. Mich. 1683. Day v. Chapfield. 28. A. died beyond fea, and made a nuncupative will, and thereby B. executor. C. took adminiftration, and brought a bill for difcovery of the fuppofed inteftate's perfonal eftate. B. pleaded the will, and that he was executor, and that A. left no eftate in England. It was not neceffary that the will be proved here, no more than if a man died and left an estate in Scotland. Vern. 397. Pafch. 1686. Jauncey v. Sealey. 29. It feemed to be agreed, that if executor becomes non compos, the fpiritual court may commit adminiftration, but not if he become bankrupt. 1 Salk. 36. pl. 1. Mich. 3 W. & M. in B. R. in cafe of Hills v. Mills. 30. If administration be granted, and the letters of adminiftration are loft, new letters of adminiftration may well be granted after the action is commenced; but it is otherwife if they are then originally granted. Comyns's Rep. 18. in pl. ro. Mich. 8 W. 3. in B. R. Barton's cafe. 31. Two executors, one renounces, the other proves the will and dies; the executorfhip furvives to the other; but where there are two executors, and one executor only acts and dies, and then the other renounces, by this the teftator is dead inteftate, and the executors of the acting executor have nothing to do with the goods unadministered, but administration shall be granted to the next of kin of the firft teftator. 1 Salk. 311. pl. 15. Houfe and Dounes v. Lord Petre, December 19, 17co, coram delegatis. 32. Administration granted to two; one dies; it furvives to the other; for by Wright K. it is not a bare authority, but rather an office, and the office furvives. 2 Vern. 514. Mich. 1705. Adams v. Buckland. S. C. cited Talbot, and faid that by Ld. C. the cafe of Bowden v. Bowden was determined contra in the ecclefiaftical court. Cafes in Equity in Ld. Talbot's Time, 128. in cafe of Hudfon v. Hudfon, Trin. 1735. bat upon the authority of Adams v. Buckland before the Ld. Cowper, he overruled the plea of adminiftration having been granted to the plaintiff and another, which other died before the bill brought. Cafes in Equity in Ld. Talbot's Time, 127, Trin. 1735. |