because they are all privy to the will; though it is not necessary where they are defendants, because the plaintiff in any action against them is not bound by law to take notice of any but those who have proved the will.

The interest vested in an executor, by the will of his testator, may be continued and kept alive by the will of the executor. Hence the executor of an executor is, in law, the executor and representative of the original testator, and so on, through any number of successive executorships; but the executor of an administrator, or the administrator of an executor, is not the representative of the original testator or intestate; and, therefore, where the representation from executor to executor is interrupted by an administration, administration must be granted afresh of the goods of the deceased, not administered by the executor; and the person so appointed is called an administrator de bonis non, that is he undertakes the administration of such property that remains undistributed. This administration of goods un-administered is usually granted to the residuary legatee, in preference to the next of kin.

2. The Office and Duty of an Administrator. When a person dies intestate or without a will, the stat. 31 Edw. III. c. 11, provides that the

ordinary shall depute the nearest and most lawful friends of the deceased to distribute the property among his legal representatives, and they are thereby put on the same footing in regard to suits, and to accounting, as executors appointed by the will.

So, also, if a testator makes a will without naming any executors, or if he names persons incapable of acting, or all the executors named refuse to act, or that they have died in the life time of the testator, administration must be granted, with the will annexed, to some other person. But, as these temporary administrations are not within the statute 31 Edw. III. there is no necessity for granting them to the next of kin, but they are generally granted to the residuary legatee, if there is one, 11 Vin. Abr. 90; 1 Roll. Abr. 907. But besides this general form of administration, an administration may be limited or special.* Thus, specific effects, as a term of years or other distinct and described chattel, may be entrusted to one's care, or the effects of the intestate in another country or place, while the rest of the effects in this country, are entrusted to another individual.

* A special administration is sometimes of the greatest importance; as where an assignment of a term of years is necessary to be obtained, in order to protect the inheritance of a purchased estate. 2 Rob. on Wills, 191.

pen

Administration may also be in various other ways; for specific purposes and for limited uses, as durante minori ætate, that is, during the minority of the next of kin; durante absentiâ, that is during the absence of the executor out of the kingdom; or pendente lite, that is, during the dency of a suit in the ecclesiastical court, concerning the validity of a will, or till the executor comes in; or to gather in outstanding terms, &c.; all which administrations cease as soon as the consideration ceases on which they were first granted.

But where a person dies wholly intestate, without making either will or executors, it is, as has been just said, provided by statute 31 Edw. I. c. 11, that the ordinary shall depute an executorial power to the nearest and most lawful friends of the deceased to administer his goods; and these are interpreted to be the next of blood to the intestate, not being under any legal disability.

These administrators are, by the same statute also, put upon the same footing, with regard to suits, and to accounting, as executors appointed by will. The statute 21 Hen. VIII. c. 5, enlarges the power of the ecclesiastical judge a little more; permitting him to grant administrations either to the widow or the next of kin, or to both of them, at his discretion; and where two or more persons are in the same degree of kindred, the statute

gives the ordinary the election to accept which he pleases.

The rules for ascertaining who are the next of blood, or, as it is usually called, the next of kin, are as follow:

1. The ordinary is compellable to grant administration of the goods of the wife to the husband, or his representatives, (11 Vin. Abr. 92); and of the husband's effects to the widow, or next of kin, or to both, at his discretion. Ibid. 71.

2. That, among the kindred, those are to be preferred who are the nearest in degree to the intestate; but, of persons of equal degree, the ordinary has the privilege of election, or a part to one and a part to another. If the widow renounces, children are entitled to the administration, or other next of kin to the intestate, in preference to creditors. Ibid.

3. That this nearness or propinquity of degree shall be reckoned according to the computation of the civilians, and not of the canonists.* Therefore, in the first place, the children, or, on failure of children, the parents of the deceased (first the

*The difference of these modes of computation is, that, according to the computation of the civil law, the several degrees are numbered from the testator himself; while, according to the rule of the canonists, they are computed from the common ancestor, a computation adopted by the law of England in the descent of real estates.

father, then the mother) are entitled to administration; both which are indeed in the first degree, but the children are allowed the preference. 1 Vin. Abr. 91. Then follow brothers, whether of the whole or half blood, grandfathers, uncles, or nephews, and the females of each class respectively. But on failure of all these, the cousins of the intestate are entitled to administer. Relations by the father's and mother's side are equally entitled, provided they are in equal degrees. 2 Rob. on Wills, 187.

4. The half blood is admitted to the administration as well as the whole, for they are equally of the kindred of the intestate, and only excluded from the inheritance of land on feudal reasons. Therefore, the brother of the half blood will exclude the uncle of the whole blood; and the ordinary may grant administration to the sister of the half or the brother of the whole blood, at his discretion.

5. If none of the kindred of the testator will take out administration, a creditor may do it. And, by stat. 38 Geo. III. c. 87, s. 4, if at the end of twelve months from the death of a testator, the executor, to whom probate shall have been granted, is residing out of the jurisdiction of the king's courts, a creditor may, on application, obtain letters of administration, for the purpose of having