Page images
PDF
EPUB

ters of administration shall be granted during the time of his minority to some other person who shall take charge of the property and administer the same under the direction of the court, and account for and deliver all the assets of the estate to the executor or regular administrator when qualified to act.23 It is customary to appoint the guardian of the infant to act in his place during his minority, 24 but the court is not compelled to make such an appointment, it having the discretion to appoint any fit and proper person.25

§1280. The Same Subject: Powers and Duties.

The limit of the powers of an administrator durante minore atate is the minority of the person who has the preferred right to act except because of his infancy. There is no other limit. The appointee during such period has all the powers of an ordinary administrator, including the power of sale for the payment of debts.26 The

28 Rev. Stat. Mo., 1889, § 13; State v. Guinotte, 156 Mo. 513, 50 L. R. A. 787, 57 S. W. 281.

In England, by the statute of 38 Geo. III, ch. 87, § 6, where an infant is named as sole executor in the will, administration with the will annexed is granted to the guardian of such infant, or to such other person as the court deems fit, until the minor attains the age of twenty-one years, when administration shall be granted to him. Section 7 of the act provides that the person to whom such administration is granted shall have the same powers as an administrator formerly had by virtue of an ad

[merged small][merged small][merged small][ocr errors][merged small]

one during whose minority an administrator has been appointed is a privy to such administrator and is bound by a judgment rendered against him in his official capacity, and may take advantage of judgments in his favor.27

§ 1281. Administration Durante Absentia: English Rule.

It has been the rule in England from an early time that if the one named in the will as executor of a testate decedent, or the next of kin entitled to administer the estate of an intestate decedent, be absent from the jurisdiction following the death of the decedent whose estate is to be administered, so that delay would be occasioned in the appointment of the one entitled to the office, administration durante absentia may be granted for the interim prior to the issuance of regular letters testamentary or of administration.28 At first an administrator durante absentia could be appointed only prior to the granting of regular letters, and after probate the fact that the executor had gone abroad did not authorize either the ecclesiastical courts to appoint a temporary administrator or the courts of equity to appoint a receiver. To overcome the inconvenience of this rule, the statute of 38 Geo. III, ch. 87, was enacted which provided that if at the expiration of twelve calendar months from the death of any testator, the executors or executor to whom probate of the will shall have been granted, are or is then residing out of the jurisdiction of his majesty's courts of law and equity, it shall be lawful for the ecclesiastical court, which hath granted probate of such will,

27 Bacon's Abr., tit. Exrs. & Admrs., B, 1, 3; Taylor v. Barron, 35 N. H. 484.

28 Bacon's Abr., tit. Exrs. &

Admrs., G; Williams Exrs. (3d
Am. ed.) **414, 415; Goods of
Thompson, L. R. 1 P. & D. 8;
Goods of Suarez, (1897) P. 82.

upon the application of any creditor, next of kin, or legatee, grounded on an affidavit therein mentioned, stating the nature of his demand, and the absence of the executor, to grant such special administration in the form therein set forth.29 The above statute applied only to the absence of executors, not to the absence of administrators, but by the Court of Probate Act, 1857, statute of 20 and 21 Vict., ch. 77, § 74, it is provided that the provisions of the above act shall apply in like manner to all cases where letters of administration have been granted and the administrator shall be out of the jurisdiction of the courts. And by the statute of 21 and 22 Vict., ch. 95, § 18, the provisions of the two acts just mentioned were extended to all executors and administrators residing out of the jurisdiction of the courts, and were not limited, as theretofore, to enable the new appointee to take proceedings in equity. However appointed, the general rule is that the authority of an administrator durante absentia ceases upon the return of the one entitled to administration.3 30 If no regular letters testamentary or of administration have previously been granted, the authority of an administrator durante absentia should continue

29 Bacon's Abr., tit. Exrs. & Admrs., G; Williams Exrs. (3d Am. ed.) **415-420.

30 Rainsford v. Taynton, 7 Ves. Jun. 460; Goods of Cassidy, 4 Hagg. Ecc. 360; Goods of Suarez, (1897) P. 82; Ritchie v. McAuslin, 2 N. C. 220.

The statute of 38 Geo. III, ch. 87, made no provision for a case where the executor should die, and it was held that the administration durante absentia in such a

case did not cease upon the death of the executor, but that if such deceased executor died testate leaving an executor, such executor last mentioned could represent the original testator. If the first executor died intestate, then the next of kin could apply for regular letters of administration. By a showing in court of the death of the original executor, an order could be secured terminating the authority of the administrator du

until the one entitled to administration makes application therefor.81

§1282. The Same Subject: American Rule.

The early English rule has been generally recognized in the United States and the courts will grant administration durante absentia prior to the issuance of regular letters testamentary or of administration, should the one entitled to administer the estate be absent from the jurisdiction.82 In some jurisdictions it is provided by statute that if the executor is absent from the state, letters of administration shall be granted during the time of such absence to some other person who shall take charge of the property and administer it under the direction of the court. Such temporary administrator must account for and deliver all property of the estate to the executor or regular administrator when qualified to act.33 Under such a statute the executor is entitled to qualify and administer upon his return.34 Where the address of the

rante absentia.-Taynton v. Hannay, 3 Bos. & Pull. 26; Rainsford v. Taynton, 7 Ves. Jun. 460.

31 Goods of Cassidy, 4 Hagg. Ecc. 360.

32 Griffith v. Frazier, 8 Cranch (U. S.) 9, 3 L. Ed. 471; Estate of Estes, 65 Mo. App. 38; Ritchie v. McAuslin, 2 N. C. 220.

Delay in obtaining regular letters of administration in the first instance is ground for the court to grant special letters of administration in the interim.-Estate of Heaton, 142 Cal. 116, 75 Pac. 662.

A local administrator durante absentia is entitled to the posses

sion of local assets in preference to persons claiming under a foreign executor.-Willing v. Perot, 5 Rawle (Pa.) 264.

33 Rev. Stat. Mo., 1889, § 13; State v. Guinotte, 156 Mo. 513, 50 L. R. A. 787, 57 S. W. 281.

34 Estate of Estes, 65 Mo. App. 38, in which case the question as to whether the administrator durante absentia could be continued in office when the executor absents himself for an unreasonable time or fails to signify his intention to assume the trust within a reasonable time after his return, was raised but not decided.

one named as executor in the will of a decedent is unknown, it is the court's duty to fill the vacancy, and if the appointee has fully administered the estate and has been discharged, a new administration will not be granted upon the return of the executor named in the will, merely to gratify him.35

The practice in the United States, except as changed by statute, is to sanction the appointment of an administrator durante absentia only prior to the issuance of regular letters. No one, although named as executor in a testator's will or entitled to administer the estate of an intestate decedent, is entitled to bring suit until after his appointment. Should the absence of the one entitled to administration mean loss to the estate, the office may be temporarily filled so that the assets of the estate may be conserved and suits be instituted, if necessary. But after regular letters have been issued, the executor or administrator, although absent, is still qualified to act and no reason exists for transferring his powers to another. The general American rule is that after regular letters have been issued and remain unrevoked, no temporary administrator can be appointed. Such an appointment is void," although some cases hold it voidable only.38

35 Succession of Nicholson, 5 La. Ann. 358.

36 Griffith v. Frazier, 8 Cranch (U. S.) 9, 3 L. Ed. 471; Kane v. Paul, 14 Pet. (U. S.) 33, 40, 10 L. Ed. 341; Hooper v. Scarborough, 57 Ala. 510, 514; Haynes v. Meeks, 20 Cal. 288, 310; Freeman V. Spencer, 128 Cal. 394, 60 Pac. 979; Appeal of Terry, 67 Conn. 181, 187, 34 Atl. 1032; Justices etc. v. SelIII Com. on Wills-10

36

man, 6 Ga. 432, 442; Sitzman v. Pacquette, 13 Wis. 291, 311.

37 Kane v. Paul, 14 Pet. (U. S.) 33, 10 L. Ed. 341; Holmes v. Oregon etc. R. Co., 7 Sawy. 380, 384, 9 Fed. 231.

See cases cited in preceding note.

38 Brock's Admr. v. Frank, 51 Ala. 85, 92; Clark v. Holt, 16 Ark. 257, 268; Franklin v. Franklin, 91 Tenn. 119, 127, 18 S. W. 61.

« PreviousContinue »