The Case of a Parol Administration
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 89 E.R. 669
IN THE KING'S BENCH.
[406] michaelmas term, in the year 1679. case 259. the case of a parol administration. Qu. If an administrator, by letters of administration, can maintain trespass against the vendee of an administrator who had administration granted by parol only, but entered in the register, before the executor named in the will of the deceased had refused to prove the will. A. makes B. his executor and dies. The Ordinary commits administration to C. the widow of A. by parol only, taking an oath of administration, and giving security; all which ia entered in the register. C. sells several goods to D. by virtue of this administration, aud then B. refuses. C. dies. Administration is granted to E. by letters, who brings trespass against the defendant D. the vendee. If it will lie 1 The first question ia, if the first administration to C. the widow of A. be good 1 Soeoudly, admitting it void, if the sale be good against E. (a) 1 I am of counsel with the defendant in the cause, who is a purchaser of goods upon valuable consideration, as the very term " sale " implies, and on that account we may expect more favour than otherwise; and truly if this action be allowed, the vendee will have a hard bargain of it, to pay twice for his goods, and to pay a fine to the King too, or else be liable to an outlawry; but yet we hope to have the plaintiff in misericord-la pro falso clamore for his vexatious suit, without the least colour or pretence, as will be plain and manifest, if we prove either of the two points. Therefore, as to the first point, whether the administration to C. be good. And I humbly conceive it is, and question not but you will conceive the same presently. Now it is well known, that if a man seised of lands and tenements, or possessed of goods and chattels in his [407] own right doth die, the heir at common law is he that (a) See 20 Geo. 2, c. 19. (b) See the case of Walker v. Hall, 1 Lev. 177. Wadsworth v. Grey, 1 Sid. 216. Rex v. Peck, Salk. 66. Hambley v. Trott, Cowp. 373, and 1 vol. Const, edit, of Bott's Poor Laws, 520. ( () See the case of Abram v. Cunningham, 1 Vent. 303. 2 Lev. 183. 2 Mod. 146. 2 Jones, 72. 1 Freem. 445. 670 MICHAELMAS TERM, IN THE YEAR 1679 I SHOW. K. B. MS. by right of blood shall succeed to the former, but with him we meddle not; as to his goods the law hath appointed two sorts of persona for the administration of them for payment of his debts, and distribution of the residue for the good of his soul; one of them is constituted by the party in his last will; the other may more properly be said to be appointed by the law in default of the former (b); these two differ in this, that the former may appoint an executor to the first testator, so cannot the latter, and they agree in this, that an administrator is entitled to all the goods and chattels of the intestate, as much as an executor to those of the testators, both alike liable to payment of debts and legacies, and they are both accountable ; about the latter only is our present business. It may not be amiss therefore to consider how the administrator came by this power, and I take it to be chiefly given him by the 31 Edw. 3, c. 11, which gave him authority to sue for, and recover the intestate's debts; for before this, though the Ordinary was liable to debt as far as the goods in his hands did reach by the Statute of Westminster the Second, yet he could not get any of the intestate's goods out of other men's hands, neither could he nor his committee, or whatsoever you will call him, recover any debt, though due by specialty, till this statute of 31 Edw. 3, c. 11. Therefore I account this the principal statute that gives him authority, &c. But this is not much material since now he hath it; and our sole question is, if the administration in our case be well committed to C. the widow of A.; and there can be no dispute, but that we are next of kin, and if to any body, it ought to be granted to her, by 21 Hen. 8, c. 5. Now all the pretence that...
To continue reading
Request your trial
-
The King against Pett and the Inhabitants of Beingfield in Suffolk
...English Reports Citation: 89 E.R. 669 IN THE KING'S BENCH.The King against Pett and the Inhabitants of Beingfield in Suffolk 1 SHOW. K. B. 406. MICHAELMAS TERM, IN THE YEAR 1679 669 case 258. the king against pett and the inhabitants of beingfield in suffolk. The sessions cannot, under 5 El......