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powers conferred on the executor named in the will except so far as there are express limitations put upon those powers, and he can sell if the executor could have done so. The usual provision of the statute is that an administrator with the will annexed shall have the same rights and powers and be subject to the same duties. as if he had been named executor in the will.80 But a power of sale, conferred by the will on the executor named therein, as provided by statute, is one of personal trust and confidence, and can be exercised only by the one named in the will and not by the administrator with the will annexed. If such power of sale is exercised by the administrator with the will annexed, no title is transferred.81

In some jurisdictions the statutes confer on the administrator with the will annexed all the power and author

80 Anderson's Admr. V. McGowan, 45 Ala. 462; Kidwell v. Brummagim, 32 Cal. 436; Ferris v. Ferris, (Del. Ch.) 98 Atl. 215; Davis v. Hoover, 112 Ind. 423, 14 N. E. 468; Sandifer v. Grantham, 62 Miss. 412; Francisco v. Wingfield, 161 Mo. 542, 61 S. W. 842; Gulley v. Prather's Admr., 7 Bush (Ky.) 167; Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031; Koopman v. Carroll, 50 Neb. 824, 70 N. W. 395; Howell v. Sebring, 14 N. J. Eq. 84; In re Devine, 62 N. J. Eq. 703, 49 Atl. 138; Mott v. Ackerman, 92 N. Y. 539; Creech v. Grainger, 106 N. C. 213, 10 S. E. 1032; Tarrence v. Reuther, 185 Pa. 279, 39 Atl. 956; Robinson v. Ostendorff, 38 S. C. 66, 16 S. E. 371; Blakemore v. Kimmons, 8

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81 Yates v. Compton, 2 P. Wms. 308; Crouse v. Peterson, 130 Cal. 169, 80 Am. St. Rep. 89, 62 Pac. 475, 615; Lockwood v. Stradley, 1 Del. Ch. 298, 12 Am. Dec. 97; Greenough v. Welles, 10 Cush. (64 Mass.) 571; Naundorf v. Schumann, 41 N. J. Eq. 14, 2 Atl. 609; Ferebee v. Proctor, 19 N. C. 439; Waters v. Margerum, 60 Pa. 39; Harrison v. Henderson, 7 Heisk. (54 Tenn.) 315; Tippett v. Mize, 30 Tex. 361, 94 Am. Dec. 313.

ity given to the executors, and where the statute provides also that an executor "may sell the land which the will directs or devises to the executor, or to another person to be sold, or gives discretionary power to sell," it has been construed to mean that an administrator with the will annexed has all the power conferred upon the executor. 82

§ 1245. Effect of Unauthorized Sale of Land by Administrator With Will Annexed.

An unauthorized sale of land by an administrator with the will annexed is absolutely void.88 A court of equity will not entertain a bill to set aside such a sale, even though the bill alleges that the sale was fraudulent, the reason being that the sale is entirely void and must so appear by the deeds, and therefore can create no cloud on the title of the heirs.84 Neither will a decree of a court of equity directing the administrator with the will annexed to sell and convey enable him to vest a legal title in the vendee, the reason therefor being that such court has no jurisdiction to declare the legal title to be in any person excepting the one in whom the law vests it.85

82 Shields v. Smith, 8 Bush (71 Ky.) 601.

83 Posey v. Conaway, 10 Ala, 811. See, ante, § 1244, n. 81.

84 Posey v. Conaway, 10 Ala. 811. 85 Ferebee v. Proctor, 19 N. C. 439.

CHAPTER XLVI.

ADMINISTRATION DE BONIS NON.

§1246. Administrator de bonis non defined.

$1247. Jurisdiction to issue letters.

§ 1248. Those entitled to letters of administration de bonis non. § 1249. The same subject: Next of kin or principal beneficiary under will.

§ 1250. Renunciation of right to letters can not be revoked.
§1251. Powers and duties of administrator de bonis non.
§ 1252. The same subject: Assets and accounting.
§ 1253. Liabilities of administrator de bonis non.

§1246. Administrator De Bonis Non Defined.

The phrase administrator de bonis non is simply an abbreviation of de bonis non administratis, which means "of the goods not administered." Where, because of the death, removal or resignation of the administrator, the administration of an intestate's estate is left unfinished, a new administrator may be appointed of the goods remaining unadministered, and he is termed an administrator de bonis non, that is administrator of the goods. of the intestate unadministered by the former administrator. An administrator appointed under like circumstances to succeed an executor is called an administrator de bonis non cum testamento annexo.1

It is not essential to the appointment of an administrator de bonis non that there should be outstanding debts against the estate. The power of the court to appoint is not limited to cases where the debts remain unpaid.2

1 Abbott's Law Dictionary.

Francisco v. Wingfield, 161 Mo.

2 Scott v. Crews, 72 Mo. 261; 542, 61 S. W. 842.

§ 1247. Jurisdiction to Issue Letters.

Administration de bonis non must be granted by the court of the jurisdiction in which the original administration is had, although part of the property of the intestate may have been removed to another county. Jurisdiction can not be transferred to another county by the removal of the property because jurisdiction might thereby be imputed to several courts, which would give rise to the strange anomaly of two or more lawful administrators of the same estate existing at the same

time.3

§ 1248. Those Entitled to Letters of Administration De Bonis Non.

Who is entitled to letters of administration de bonis non depends on the circumstances of the case. If a sole executor named in the will has been appointed by the court and has qualified, but a vacancy thereafter occurs by reason of his death, or resignation, leaving some part of the estate unadministered, the common law rule is that the executor of the deceased sole executor is to all intents and purposes the representative of the first testator. Where the sole executor appointed by a testator in his will dies before having proved the will, the executorship of the deceased executor is not transmitted to his executor, but is terminated, and under such circumstances administration with the will annexed is granted as an immediate administration to the one entitled thereto."

8 Burnett v. Meadows' Admr., 7 B. Mon. (46 Ky.) 277, 46 Am. Dec. 517.

4 See § 1231.

5 Williams Exrs. (3d Am. ed.) **387, 388.

As to who are entitled to letters of administration with the will annexed, see §§ 1228-1236.

In all other cases, upon the death of one who is administering the estate of a decedent, administration de bonis non must be had. If the administration to be completed is that of the estate of an intestate, the one entitled to letters of administration de bonis non is the same as in the case of the original administration. Generally speaking, there is no distinction between the right to an original administration of the estate of an intestate and a de bonis non administration. But the principle prevails that the right to administration should follow the beneficial interest. Thus if a wife die and administration of her estate is granted to her husband, upon the death of the husband his representative should be entitled to administer the wife's estate where the beneficial interest in her estate is vested in the next of kin of the husband, the principle being that the right of the administration should follow the interest in the property. If the wife's next of kin have the beneficial interest in her estate, then they should be entitled to letters of administration de bonis non.

§ 1249. The Same Subject: Next of Kin or Principal Beneficiary Under Will.

Some statutes have reference only to the rights of the next of kin existing at the time of the death of the intestate and not at the time when administration de bonis non is granted; therefore, should those who were entitled to letters of administration of the estate of the intestate die before administration de bonis non is rẻquired, the statute would not apply and letters should be

6 Williams Exrs. (3d Am. ed.) **390, 391.

As to the order in which per

sons are entitled to administer estates of intestates, see §§ 1197, 1198.

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