the archbishop, by his prerogative, to one who did not die possessed of goods in divers dioceses, were merely void. But the more current doctrine is, that such administrations are not void, like those granted by a bishop, where there are bona notabilia, but only voidable by sentence: because the metropolitan hath jurisdiction over all the dioceses in his province, whereas a bishop can by no means have jurisdiction in another diocese (8).d It is said, that if administration be committed in a diocese where there are bona notabilia, though such grant be ipso facto e void, yet they do not grant a new administration in the prerogative court, before they have repealed that; and in that case they shall not be prohibited f. Thus having treated on where and by whom administration is to be granted, and herewith shown the reasonable foundation upon which the prerogative is founded, and touched upon the doctrine of administration being void when granted by an improper court; we shall now show in what manner persons inadvertently applying for probates of wills, or administrations, are to be treated by the respective officers of spiritual courts when so applied to. As it hath been the case that many have been by apparitors, both of inferior courts and the courts of the archbishop's prerogative, much distracted, by being diversely called and summoned for probate of wills, or to take administrations of the goods of persons dying intestate, and thereby have been vexed and grieved with many causeless and unnecessary troubles and expenses: by Canon 92 (9). “It is d 4 Burn's Eccles. Law, 184. e Ipso facto void, signifies that it is void without any decree or sentence. As in the case of a parson obtaining two or more preferments in the church with cure not qualified de by dispensation, &c. the first living (8) See also Vere v. Jefferies, Moor, 145. Nedham's Case, 8 Rep. 135. a. 5 Rep. 29. b. acc. (9) This and the following canon will be found among those made by the clergy in a convocation holden in the "constituted and appointed, that all chancellors, commis"saries, or officials, or any other exercising ecclesiastical "jurisdiction whatsoever, shall, at the first, charge with an "oath all persons called or voluntarily appearing before "them for the probate of any will, or the administration of 66 any goods, whether they know, or (moved by any special "inducement) do firmly believe, that the party deceased (whose testament or goods depend now in question) had, "at the time of his or her death, any goods or good debts "in any other diocese or dioceses, or peculiar jurisdiction "within that province, than in that wherein the said party "died, amounting to the value of 51. And if the said per"son cited, or voluntarily appearing before him, shall upon "his oath affirm, that he knoweth, or (as aforesaid) firmly be"lieveth, that the said party deceased had goods or good debts "in any other diocese or dioceses, or peculiar jurisdiction "within the said province, to the value of 51. and parti cularly specify and declare the same, then shall he pre"sently dismiss him, not presuming to intermeddle with the "probate of the will, or to grant administration of the goods "of the party so dying intestate. Neither shall he require "or exact any other charges of the said parties, more than "such only as are due for the citation, and other process "had and used against the said parties, upon their further "contumacy; but shall openly and plainly declare and "profess, that the said cause belongeth to the prerogative "of the archbishop of that province; admonishing the party "to prove the will, or require administration of the goods, "of the court of the said prerogative, and to exhibit before "him, the said judge, the probate or administration under "the seal of the prerogative, within forty days next fol"lowing. And if any chancellor, commissary, official, or first year of the reign of king James the First, A. D. 1603. They received the royal assent, but were not confirmed by parliament. Hence it was holden in Middleton v. Crofts, Stra. 1056, that the canons of 1603 did not proprio vigore bind the laity. See also 1 Woodd. 48. 1 Hal. H. C. L. 33.n. "other exercising ecclesiastical jurisdiction whatsoever, or any their register shall offend herein; then let him be "ipso facto suspended from the execution of his office, not "to be absolved or released until he have restored to the 66 party all expences by him laid out contrary to the tenor "of the premises; and every such probate of any testament, " or administration of goods so granted, shall be held void. 'and frustrate to all effects of the law whatsoever. And it "is hereby further charged and injoined, that the register "of every inferior judge do, without difficulty or delay, "certify and inform the apparitor of the prerogative court, "repairing to him once a month, and no oftener, what exe"cutors or administrators have been by his said judge, for "the incompetency of his own jurisdiction, dismissed to the "said prerogative court within the month next before; under pain of a month's suspension from the exercise of his "office for every default therein." But it is provided that this canon, or any thing therein. contained, be not prejudicial to any composition between the archbishop or any bishop or other ordinary, nor to any inferior judge that shall grant any probate of testament or administration of goods to any party that shall voluntarily desire it, both out of the said inferior court, and also out of the prerogative. And likewise that if any man die in itinere, that is, on a journey, the goods that he hath about him, at that present, shall not cause his testament or administration to be liable unto the prerogative court. "It In respect of the prerogative court, by Canon 93., "is decreed and ordained, that no judge of the archbishop's prerogative shall cite, or cause to be cited ex officio, any person whatsoever to any of the before-mentioned intents, "unless he hath knowledge that the party deceased was, at "the time of his death, possessed of goods and chattels in 66 It is so called from the power a person has, by virtue of an office, to do certain acts without being ap.. plied to; as a justice of peace may not only grant surety of the peace at the complaint or request of any person, but he may demand and take it ex officio at discretion, &c. Dalt. 270. "some other diocese or dioceses, or peculiar jurisdiction "within that province, than in that wherein he died, "amounting to the value of 57. at the least: and decreed "and declared, that whoso hath not goods in divers dioceses "to the said sum or value, shall not be accounted to have "bona notabilia. Always provided, that this clause here, and in the former constitution mentioned, shall not pre"judice these dioceses, where, by composition or custom, bona notabilia are rated at a greater suma. And if any "judge of the prerogative court, or any, his surrogate, "his register or apparitor, shall cite, or cause any person "to be cited into his court, contrary to the tenor of the pre"mises, he shall restore to the party so cited all his costs "and charges; and the acts and proceedings in that behalf "shall be held void and frustrate. Which expences, if the "said judge or register, or apparitor, shall refuse accord"ingly to pay, he shall be suspended from the exercise "of his office, until he yield to the performance thereof." What has been said under this head respecting administration, is alike applicable to wills and testaments. For regularly, he that shall have the probate of a will, in case where a man doth make a will, shall have the granting of administration of his goods and chattels in case he dies intestate b. SECTION IV. What the Person applying for Administration, is to do before it is granted. THE practice is not to issue letters of administration, until after the expiration of fourteen days from the death of the intestate; unless for special cause (as, that the goods would otherwise perish, or the like) the judge shall think • The law concerning this matter is, that five pounds is the sum or value of notable goods. But where, by composition or custom in any county, bona notabilia are rated at a greater sum, the same is to continue unaltered; as in the diocese of London, it is 10. by composition. 4 Burn's Eccles. Law. 181. Shep. Touch. 443. fit to decree them sooner. On taking out letters of administration, the administrator takes an oath, which is usually in this form: "You shall swear, that you believe A. B. "deceased died without a will; and that you will well and "truly administer all and every the goods of the said de"ceased, and pay his debts, as far as his goods will extend; "and that you will exhibit a true, full, and perfect inventory "of the said goods of the deceased, and render a true ac"count of your administration into the court of 66 when you shall be thereunto required." You also swear that you are the widow, son, daughter, next of kin or creditor, (as may be the case) of the said A. B. and that the whole of the goods, chattels, and credits he died possessed of, do not in value exceed the sum of "So help you God." 1. By statute 22 & 23 Car. II. c. 10. It is enacted, that all ordinaries, as well the judges of the prerogative courts of Canterbury and York, as all other ordinaries and ecclesiastical judges, and every of them, having power to commit administration of the goods of persons dying intestate, shall and may, upon their granting and committing of administration of the goods of persons dying intestate, of the person or persons to whom any administration is to be committed take sufficient bond with two or more able sureties, respect being had to the value of the estate, in the name of the ordinary, with the condition in form and manner following, mutatis, mutandis, viz. "The condition of this obligation is such, that if the "within bounden A. B., administrator of all and singular "the goods, chattels, and credits of C. D. deceased, do "make or cause to be made a true and perfect inventory of "all and singular the goods, chattels, and credits of the "said deceased, which have or shall come to the hands, 66 possession, or knowledge of him the said A. B. or into the "hands and possession of any other person or persons for c4 Burn's Eccles. Law, 231. The administration has nothing to do with real estate, as has already been mentioned towards the former part of the preceding section. |