W. Gregory (William Gregory) Walker.

A compendium of the law relating to executors & administrators : with an appendix of statutes, annotated by means of references to the text online

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A COMPENDIUM OF THE LAW RELATING TO

EXECUTOBS AND ADMINISTTIATORS. With an Appendix of Statutes, ct.'. By
W. Gr.EGOUY "Walker, B. A., of Lincoln's Inn, Barrister-at-Law.

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ri^AA'



ts^



A COMPENDIUM

OF

THE LAW



©xtcutovs antr ^trministrators*



COMPENDIUM

OF THE

LAW RELATING TO

<S;:ecutor0 ^ 0[bmini0trator0,



APPENDIX OF STATUTES,

ANNOTATED BY MEANS OF REFERENCES TO THE TEXT.



W. GREGORY WALKER, B.A.,

or Lincoln's inn, barrister-at-law, author of "the partition acts, ISOS and ISTC;
A manual of the law of partition and of sale in lii;u of partition.''



LONDON:

STEVENS AND HAYNES,

Hah) ^uillsfjrrs,

BELL YARD, TEMTLE BAR.

1880.



LONDON :
BRADBUEY, AGNEW, & CO., PRINTERS, WHITEFRIAES.



T



^^o






TO

THE EIGHT HONOURABLE WILLIAM PAGE,

BAKON HATHERLEY,

FORMERLY LORD HIGH CHANCELLOR OF GREAT BRITAIN,

«

THE FOLLOWING WORK

IS,
BY HIS lordship's KIND PERMISSION,



7?/z49



PEEFACE.



"With the exception of one well-known work, tlicrc
is no modern book of any importance treating, except
incidentally, of the law relating to execntors and admi-
nistrators. Probably the very learned volumes of the
late Mr. Justice Williams almost exhaust the subject,
and will long remain the authoritative exposition of this
branch of the law ; but they have become, in the course
of successive editions, and by reason of the compre-
hensiveness of theii' scheme, a work of portentous size,
which can only be purchased at what must be to many
a prohibitive price. In these cii-cumstances it Avas sug-
gested to me that a treatise dealing with the subject in
a compendious form would not be unacceptable to the
Profession, to Students, and indeed to the many a\1io are
at some time or other called upon to act as executors or
administrators. Hence the present work.

My subject is one of indefinite extent, ramifying into
very many branches, which will readily present them-
selves to the reader's mind, and which necessitate a
book of considerable magnitude, if the subject is to be



VIU PREFACE.

exhaustively worked out. My wish being to treat this
part of the law compendiously, it became necessary to
limit my subject-matter as much as could conveniently
be done without impairing the practical utility of the
work. The difficulty of this will be best understood by
those who have undertaken a similar task ; they at least
will Ivuow how much more arduous it is to cm-tail than
to expand, to summarise than to amplify.

Whether my condensation of the law is in any way
successful, the Profession will decide. I will merely
indicate the chief means adopted by me to that end.

I have omitted, then, as a rule, all such matters as
fringe upon, rather than form an integral part of, the
main subject. If it be objected that such a method is
not strictly scientific, I reply that, even if that be so,
expedience must sometimes over-ride theoretic consi-
derations ; but, in point of fact, Avant of scientific method
is not fairly chargeable against an author for dealing
with a branch of law which overlaps other branches (and
such cases are very numerous, if indeed thej are not co-
extensive with the entire field of legal literature) with-
out pursuing all such other branches to their end. Again,
I have omitted all or nearly all that is only of antiquarian
or historical interest, and have confined myself to what I
judged would be of practical utility. Tliirdly, I have
seldom dealt with mere matters of practice, except



PREFACE. IX

incidentally and by way of illustrating some principle.
Lastly, I have endeavoured not to overlay my pages
with an unnecessary mass of cases, though I have never
knowingly omitted any that seemed pertinent within the
limits which I laid do^Tn. for my guidance.
. I trust I shall not be found to have exemplified the
old adage — Comjwndia sunt dispenclia. At least I have
spared no pains to avoid that fate. In no instance have
I cited any authority at second hand, liaAing made it an
invariable rule to consult at least one of the books in
which it was to be found. Where a point is reported in
more Eeports than one, I have at the time of citation
referred to that particular Eeport from which the cita-
tion is taken, and have given references to others in the
Table of Cases.

In the Appendix will be found all the more pertinent
of the enactments to which I have referred in the course
of the work. Against them I have set references to the
Text, so as, if not to provide in some sort, at no great
expenditure of trouble on the reader's part, an annotated
edition of select parts of A'arious Acts of Parliament, at
least to show the relations in which those select parts
stand to the general subject.

To the treatise of Mr. Justice Williams I wish Iiere,
once for all, to record my great obligation, tliougli I
have used it, not as an authority to be glibly quoted in



X PEEFACE.

order to avoid the labour of independent inquiry, but
rather as a yahiable index to the cases, which were to
be weighed, stated, and arranged, in my o^\ti way.

I will only add, in conclusion, being well aware that
there must be many shortcomings in the following pages,
that I shall be grateful for any addenda or corrigenda
with which the Profession may favour me.

W. GREGOEY WALKER.



22, Old Buildings, LixcoL>''ti Inn,
March, 1880.



TABLE OF CONTENTS.



CHAPTER I.

]
THE CREATION OF THE OFFICE OF EXECUTOR.

A. — Modes bt which Executors ap.e Aitoixted.

Definition of executor. — Will appointing him need not be such in form. —
Executors nominate and according to tlie tenor may co-exist in same
will. — Absolute and qualified appointments. — Testator may delegate
appointment ...........

B.— Appointment of Executoiis by Nomination.

Principle on which Court acts in construing ambiguous appointments of
executors. — Appointment may be void for uncertainty. — Instances of
construction put by Court upon amlnguous final appointments. — In-
stances of construction put by Court upon ambiguous substitutionary
appointments ...........

C. — Appointment of Executoks by Implication.

What necessary to constitute one executor according to the tenor. — Cases in
which Court has construed wills as constituting, or not constituting,
such an executor. — Limited executor may by codicil be appointed
general executor according to the tenor

D.— Qualification of an Appointment of Executors.

Executors for different purposes or properties. — Executors from, or until, a
• given time. — Executors on conditions .......



CHAPTER II.

WHO ARE CAPABLE AND INCAPABLE OF BEING EXECUTORS
OR ADMINLSTKATOliS.

Idiots and lunatics. — Mere weakness of mind does not incapacitate. — The
king : his power of nominating a substitute. — Infants. — Femes coverlcs :
their and their husbands' rights.— Outlaws and felons. — Aliens. — In-
solvents and bad characters.— Corjioralions aggregate 'and sole. —
Partnership firms ..........



Xll TABLE UF CONTENTS.



CHAPTER III.

RENUNCIATION BY EXECUTORS, AND RETRACTATION OF
THEIR RENUNCIATION.

PAGE

A. —Renunciation.

No remmeiation after actiug. — "VVliat acts sufficient to show au election
to act. — Partial renunciation not allowed. — Probate au acceptance of
trusteeship. — Acts done by one as agent do not prevent renunciation
by him as executor, if he has not proved. — Agreement to renounce in-
valid. — "What acts indicate a refusal of office. — Requi.sites of a binding
remmeiation. — "What time allowed executors for deliberation. — 79th
sect, of Probate Act. — Creditor executor ^yho renounces docs not lose
his ordinary rights as creditor 12

B. — Retkactation of Renunciation.
"Within what time renunciation may be retracted. — Renunciation declared

invalid 17



CHAPTER IV.

DEVOLUTION OF THE OFFICE OF EXECUTOR.

Office survives on death of one of several executors. — Executor cannot
assign his office. — "When executor of executor represents first testator. —
Executors of married woman. — Probate Acts. — Cases on the Acts. —
Administrator of executor does not represent testator . . . .19

CHAPTER V.

GRANTS OF PROBATE.

A. — "What Documents may be Proved.

Document must have testamentary character. — Partial probate. — "Will of
foreign property only. — "Will appointing guardians only. — Merely revo-
catory wills. — "WiU under power. — Contents of parcels referred to in
■will. — "Will of real estate only. — Probate refused to executor for "pro-
perty not named in will." — Testamentary document found after probate
ought, though of no importance, to be proved . . . . ' . 23

B. — TuE JunisDicTioN TO Grant Probate [and Administration].

Judicature Act. — Probate division the right division ; but, scmhlc, any Judge

can now grant probate or administration ...... 25

C. — The Tijie for, and JiIode.s of, Probate.

Only executor can prove will. — Court may cite interested parties. — "\Then
the will should be proved. — Probate in common and solemn form. -
Limited probate 26



TABLE OF CONTEXTS. XUl



CHAPTER VI.

GENERAL RULES AND PRINCIPLES RELATING TO THE
GRANT OF LETTERS OF ADMINISTRATION.

PAGE

Distinction between general and limited grants. — Deceased must have
left property in this country. — In case of foreigners, Court usually
adopts foreign grant. — Foreign Court cannot grant administration of
property in England. — Joint administrations discouraged.— Several ad-
ministrations of several parts of same estate. — Grants to guardians of
minors. — Grants to grantees ahroad.— Grants to attorneys.— Delay in
appl3'ing for grant must be explained.- Parties having prior rights to
grant must first be cited, or consent ; but the rule may be relaxed. —
No grant i)cr sallum. — Intcrnieddler cannot be comiielled to talce
grant. — One entitled to a grant may renounce his right, and, gi'iierally,
retract his renunciation. — One entitled in a superior, cannot take a
gi-ant in an inferior, character ; nor, generally, if he renounce in one
character, take a grant in another. — Limited grants not to be made, as
a rule, if any one entitled and Avilling to take general grant.— One en-
titled to general, may not, as a rule, take limited grant ... 30



CHAPTER VII.

GENERAL GRANTS OF ADMINISTRATION.— SIMPLE ADMINIS-
TRATION.
A. — The Paramount Right of a Widower.
Husband entitled to administer to wife, so far as he is not excluded by her
testamentary powers, except in certain cases. — Qioenj, where he has
for good consideration abandoned all claim to her property. — The rule
in Fielder v. /iaw^f r.— Husband's next of kin must administer to him
before administering to his predeceased wife— As to husband and wile
perishing by same accident ......... 37

P,.— The Right of a Widow as agaix.st Next of Kix.

Provisions of the Statutes of Administration. — Widow preferred to next of
kin ; but the rule by no means inllexible. — Grant may be made to widow
and next of kin. — Creditors may not interpose 40

C. — The Right.s of Next of Kix, "Ixter .'^e."
Statute of Hen. VIII. applies only to next of kin at dtxUh.—Com-t has a
discretion, which, however, is not to be capriciou.sly exercised.— Prece-
dence of next of kin.— As between next of kin of equal degree,
administration is granted to the greatest interest.— Males u.sually
preferred to females, and whole-blood to half-blood. — Primogeniture
has very little weight.— Adults have not, as such, any priority over
guardians of minors. —Business man preferred.— Bankruptcy not ne-



XIV TABLE OF CONTENTS.

PAGE

cessarily a disijualification. — Notice of apjilieation for grant to be given
to others ei^ually entitled. — Case of principal part of deceased's estate
being trnst property 42

D. — The Right of the Ckowx.

In wliat cases administration granted to Crown. — Crown has no legal
title. — Nominee of Crown under same obligation as other administra-
tors : his liability devolves on his personal representatives, not on his
successors in office 45

E. — The Right of Coxsctls (in the case of FoREioyERs).
Statutory provision as to consular administration 46

F.— The Right of Creditors.

Grant only made to creditor, failing any other representative, and then
only on terms. — Who may administer as creditors. — Grant to officer
of an association. — Larger creditor preferred to smaller. — Limits of a
creditor's rights .......... ib.

G. — The Court's Discretionary Powers.

The 73rd section of Probate Act 'gives wide discretion to Court, and
modifies, apparently, the Act of Hen. VIII. — Cases in which Court
has resorted, or refused to resort, to the section. — Court will not, by
resorting to the section, dispense with notice to persons entitled in
priority, nor make a grant under it to one entitled in another character 48



CHAPTER VIII.

GENERAL GRANTS OF ADMINISTRATION (co^Ci'/twcf?).— ADMINIS-
TRATION CTM Ti:S'TAJI£yT(J AXXEXO.

In what cases this grant is made.— Where there is' a capable executor, his
refusal must be recorded, or he must be cited, before a grant will go.
— Administration with the will of a married woman annexed. — 'Ihe
grant c. t. a. is in the discretion of the Court, but is usually made to
the residuary legatee, i.e., to the trustee (if any) of the residuary
estate, and, failing him, to the residuary legatee for life. — Court
may make grant to one of several residuary legatees. — Grant usually
follows the interest. — AVho may represent residuary legatee, for purpose
of taking grant. — Interest of residuary legatee surviving testator is
transmissible, but widower of residuary legatee in remainder entitled
priority to widow of residuary legatee for life. — After residuary legatee,
next of kin entitled, then legatee or creditor ; but next of kin may be
passed over in favour of creditors. — Creditors eiititled in priority to
attorney of colonial official administrator, and executrix of deceased's
executor to widow



TABLE OF CONTENTS. XV



CHAPTER IX.

GENERAL GRANTS OF ADMINISTRATION (cOTi<i/!2w?).— ADMINIS-
TRATION DE BOXIS KOX.

PAGE

When this grant is made. — It is discretionaiy, but usually follows tlio
interest. — Party with direct interest usually preferred to those entitled
in representative character. — The estate and interest of an adminis-
trator d. b, n .60



CHAPTER X.

LIMITED GRANTS OF ADMINISTRATION.— ADMINISTRATION
DURANTE MINORE ^ETATE.

"When this grant is made. — It is discretionary. — How the administration is
determined. — The administrator a trustee for the infant : his liabilities
and powers. — Determination of administration pending action against
special administrator .......... 6^

CHAPTER XI.

LIMITED GRANTS OF ADMINISTRATION (coH^mHffn.— ADMINIS-
TRATION RENDENTE LITE.

When this gi-ant is made. — Instances of appointment of administrator
IKudentc lite. — Appointment maybe made at instance of one not a party
to the suit. — The litigation must affect the appointment of executors.
— BclJcwv. Bellctc. - Court usually appoints some indifferent person,
after imiuiring into his circumstances. — Powers and status of an ad-
ministrator 2^'"iidcntc lite ......... 6(

CHAPTER XII.

LIMITED GRANTS OF ADMINISTRATION (co/i^/Hiaf/).— ADMINIS-
TRATION DURANTE ABSENTIA AND DURANTE DEMENTIA.

A. — Admixlstration Durante Absentia.
When this grant is made. — It is discretionary. — Statute of Geo. III.,
and amending statutes.— Statute construed literally. — Determination
of authority of administrator dur. ahs. — Limited grant to a tru.stee. —
Accountability of the administrator. — This grant only made in case of
absence after probate or letters . . . . . . . .7:

B. — Admixistr.vtion' Durante Dementia.
When this grant is made. — Where one of several executors or administra-
tors is lunatic, probate or administration is revoked, and a fresh grant
made. — Grant may be doubly limited ....... 7^



X VI TA B LE OF COXTEN TS.



CHAPTER XIII.

LIMITED GRANTS OF ADMINISTRATION {eontinwd).—

ADMINISTRATION AD LITEM.

PAGE

A. — Grants made uxdek the inherent Jurisdiction of the

Court.

Instances of such grants. — Quer;/, whether made without going into the

merits. — Disabilities of an administrator ad litem. — Ca.ses in which

such an administrator sufficiently represents the estate, — He does not

sufficiently represent an estate to be administered .... 76

B.— Grants made under the Chancery Procedure Act, 1852.

Section 44 of the Act. — An administrator apjKiinted under the section does
not sufficiently represent an estate to be administered, nor the estate of
a settlor on whose settlement the litigation has arisen. — Section only
applies to cases of difficulty in obtaining administration, and where
the entire adverse interest is not unrepresented.- — Cases in which a
representative has been appointed under the section. — "Who is the proper
person to be appointed. — Query, whether an appointment will be made,
where personal responsiT>ility is entailed, and whether one will be
appointed against his will.- — Formality of letters of administration may
be dispensed with, but, semhle, duty is payable. — Disability of an snX-
\\\m\i,iva.ior ad litem . — rroceediug in absence of representative . . 79

CHAPTER XIV.

LIMITED GRANTS OF ADMINISTRATION {continued).—
MISCELLANEOUS- GRANTS.

Loitcvs ad colli gend a : powers of a grantee of such letters. — He ought to
pay balance into Court. — Grants in respect of lost wills, legacies, and
contemplated legal proceedings. — Administration limited to trust fund
granted to cr.stiii que fri(sf ......... 85



CHAPTER XV.

THE BOND TO BE GIVEN BY ADMINISTRATORS.

All administrators (except solicitors to Crown) to give bond to Judge. —
Court cannot dispense with bond, but has a discretion as to amoimt of
penalty.— Execution of bond by other than administrator, in pressing
case.— Sureties to bond. —Justifying security.— Assignment of bond, for
purpose of suing on it. — What is a breach of the conditions of the bond.
— AVhere a second bond has been given on the property being resworn,
sureties of such bond must be sued before sureties of first bond . . 88



TABLE OF COJfTENTS. XVU



CHAPTER XVI.

THE NECESSITY FOR, AND THE NATURE AND EFFECT OF,
PROBATE AND ADMINISTRATION.

TAOE

Only probate and letters gi-anted in this country are legal evidence of will
and of the appointment of personal representatives, and without their
production Court cannot grant relief. — Illustrations. — In decreeing
probate, Court usually follows grant of Court of domicil ; and, semhle,
it is bound to do so. — Resealing of Irish probates and Scotch confirma-
tions. — Indian grants. — Probate and administration only granted in



Online LibraryW. Gregory (William Gregory) WalkerA compendium of the law relating to executors & administrators : with an appendix of statutes, annotated by means of references to the text → online text (page 1 of 46)