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Administration

statute, ordinary, intestate, deceased, widow, debts, appointed, children, administrator and kin

ADMINISTRATION and ADMINIS TRATOR. An administrator is a person appointed by the ordinary or bishop of the diocese to make administration of or to distribute the goods of a person who dies without having made a will. It is said that, in very early times, the king was entitled in such a case to seize upon the goods, in order that they might be applied to the burial of the deceased, the payment of his debts, and to making a provision for his family. It would ap pear that this power of the crown over the effects of intestates was greatly abused, for, by Magna Charts, King John granted that " if a freeman should die intestate, his chattels should be distributed by the hands of his near relations and friends, under the inspection of the church." This, probably, formed the foundation upon which the bishops after wards founded their right to administer by their own hands the goods of an in testate. There is, at least, no doubt that the power of seizing the goods of an intestate was, at a later period, trans ferred from the crown to the bishops. The whole property was, in the first in stance, placed in the custody of the ordi nary, or bishop of the diocese in which the intestate died; and after the deduc tion of what were technically called "partes rationabiles," that is, two-thirds of the whole, which the law gave to the widow and children, the remaining third part vested in the bishop upon trust to distribute that proportion in charity to the poor, or in " pious uses," for the bens fit of the soul of the deceased. This trust being greatly abused by the bishops, the statute called the " Statute of Westmin ster the Second," was passed in the reign of Edward I., which provided that the debts of the deceased should be paid by the ordinary in the same manner as if he had been an executor appointed by a will. The remainder, after payment of debts, still continued applicable to the same uses as before. To prevent the abuses of the power thus retained by the ordinary, and to take the administration out of his hands, the statute of 31 Edward III. cap. 2, directed the ordinary, in case of intestacy, to depute " the nearest and most lawful friends" of the deceased to administer his goods ; and these adminis trators are put upon the same footing with regard to snits and to accounting, as executors appointed by will. This is the origin of administrators ; they are merely the officers of the ordinary, ap pointed by him in pursuance of the sta tute, which selects the nearest and most friend of the deceased ; these words being interpreted to denote the nearest relation by blood who is not un der any legal disability. The subsequent statute of 21 Henry VIII. c. 5, enlarges a little more the power of the ordinary, and permits him to grant administration either to the widow or the next of kin, or to both of them ; and, where several persons are equally near of kin, empowers him to select one of them at his discre tion.

If none of the kindred are willing to take out administration, a creditor is per mitted to do so ; and in the absence of any person entitled to demand letters of administration, the ordinary may appoint whomsoever he may think proper to col lect the goods of the deceased, for the benefit of such as may be entitled to them. Administrators are appointed even when a will has been made, if by the will no executors are appointed, or if the persons named in it refuse, or are not legally qualified to act; and in any of these cases the administrator only differs from an executor in the name of his office and mode of his appointment. In prac

tice, when the executor refuses to act, it is usual to grant administration to the residuary legatee, that is, to the person to whom, by the will, the remainder of the personal property, after payment of debts and legacies, is given.

In the case of a complete intestacy, it was formerly doubted whether an ad ministrator, when appointed by virtue of 31 Edward III., could be compelled to make any distribution of the effects of the intestate which remained in his hands after payment of debts ; for though the administration had been transferred from the ordinary to the next of kin of the deceased, the new administrator stood in much the same position as the ordinary had. The spiritual courts endeavoured to enforce distribution by taking bonds from the administrator for that purpose, but these bonds were declared void by the common law courts. The "Statute of Distributions," 22 & 23 Charles II. c. 10, which is amended by 29 Car. II. c. 3, enacted that the surplus effects, after payment of debts, shall, after the expiration of one year from the death of intestate, be distributed in the follow ing manner :—one-third shall go to the widow, and the remainder in equal pro portions to the children of the intestate, or, if dead, to their legal representatives, that is, their lineal descendants: or, if there be no children, or children's legal representatives, then one moiety shall go to the widow, and the other moiety to the next of kin in equal degree, or to their representatives : if no widow, the whole shall go to the children or their repre tatives in equal portions : if neither widow nor children, the whole shall be distributed amongst the next of kin or their representatives. The statute of 29 Charles II. c. 3, confirms the old right of the husband to be the administrator of his wife who dies intestate, and to recover and enjoy her personal property.

By the same statute it is directed that no child of the intestate (except it be his heir at law) on whom he settled in his lifetime any estate in lauds, or to whom he gave a pecuniary portion equal to the distributive share of the other children, shall have any share of the surplus to be administered ; but if the estate or portion thus given him by way of advancement is not equivalent to the other shares, the child so advanced shall have so much of the intestate's personal estate as will put him on an equality with his brothers and sisters.

The Statute of Distributions expressly excepts and reserves the customs of the city of London, of the province of York, and of all other places which have pe culiar customs of distributing intestates' effects. These customs resemble, in some degree, the provisions of the statute, though they differ from them in some re spects.

The degrees of kindred are reckoned according to the Roman law in the appli cation of the Statute of Distributions and, many of the pro visions of the statute as to the mode of distribution resemble those of the Roman law of Justinian's period. (Novel. 118; and Gains, iii. On the Succession to In testates' Estates.) For further information upon the sub sect of Administrator and Administration, see ExEcuToas.