CHAPTER X SPECIAL FORMS OF ADMINISTRATION § 79. Administrator with the Will Annexed When it happens, as it sometimes does, that there has been no executor appointed by the will, or that the executor appointed has not been considered by the court capable of performing such duties, or has died or refused appointment, the court will appoint an administrator with the will annexed (cum testamento annexo), figuratively, an executor appointed by the court. Where, however, the will creates certain trusts and appoints trustees, such an administrator is not the proper officer to act if the trustees should die, be removed, or for other reasons fail to take over the duties entrusted to them. Where there are several executors or trustees, all must renounce, or be declared unfit before an administrator with the will annexed can be appointed. An administrator cum testamento annexo has all the functions of an executor to perform, and the letters which he receives from the court are worded to that effect. The examination by the court, however, will be substantially the same as for an ordinary administrator. An administrator of this kind would not be appointed by the court unless the will had been admitted to probate. Administration of this kind will be granted to those who have the greatest interest in the will, as in the case of a general administrator. For this reason, a residuary legatee under the will will be preferred to next of kin and to any other legatee under the will; and it has been held in many cases that, where ΙΟΙ such residuary legatee dies before obtaining letters of this sort, his personal representative takes precedence in his right to the same extent. In Missouri and one or two other states the fact that one has been appointed executor will not bar that same person from being later granted letters with the will annexed. For example, A has been appointed under B's will as executor. Through mistake or ignorance, A also signs the will as a witness. Upon B's death, A, realizing the mistake, rejects the position of executor himself, or is rejected by the court, but because he may have an interest in the will as a legatee or a relative the court may appoint him administrator with the will annexed. Where an administrator with the will annexed has been appointed upon the removal of an executor for some cause, he has power to compel the retiring executor to make a final accounting, so that he may know what is the condition of the estate the management of which he is taking over. § 80. Ancillary Administration Ancillary administration is defined by the Century Dictionary as: A local and subordinate administration of such part of the assets of a decedent as are found within a state other than that of his domicile, and which the law of the state where they are found requires to be collected under its authority in order that they may be applied; first, to satisfy the claims of its own citizens, instead of requiring the latter to resort to the jurisdiction of the principal administration to obtain payment; the surplus, after satisfying such claims, to be remitted to the place of principal administration. From this definition it will be seen that ancillary administration is an administration that is subordinate to the main administration, and which is a matter of convenience and expediency in settling up estates scattered widely over the coun try or where there is property both here and abroad or in various states in this country. The main or principal administration will always be in the place of the decedent's last domicile, and any other administrations are merely ancillary. It is not, however, necessary that the principal letters of administration be issued first. The duty of the ancillary representative is to collect the assets in his particular jurisdiction and then to pay off the local debts. Any surplus funds will be dealt with according to the local court which appointed the ancillary, which court will in most cases remit this surplus fund to the court of principal administration. § 81. Administrator of Goods Not Already Administered An administrator de bonis non is one appointed to finish the work of the administrator where the previous administrator has died or been forced to give up the position. There are two aspects of this sort of administration. Where there has been a will but no executor has been appointed by the testator or qualified to the satisfaction of the court, and there is an administrator with the will annexed appointed—in this case should this administrator die or resign before finishing his work, an administrator de bonis non with the will annexed will be appointed. The second case is where there has been no will. The court appoints an administrator and here, should the administrator die or resign before completing administration, an administrator de bonis non will be appointed to fill his place. An administrator of this kind will not be appointed upon the death or resignation of the prior administrator unless it appears that there are debts remaining due, or personal property which has not as yet been administered. It has been held in this connection that an administrator de bonis non may be appointed after the lapse of twenty years from the death of the prior administrator. But as a usual rule long lapses of time between the death of the administrator and the appointment of an administrator de bonis non will raise the presumption that full settlement of the estate has been made. The preference or choice in appointing an administrator of this sort is the same as for a general administrator. § 82. Temporary Administrations Administration may be limited to a certain length of time or to particular acts, during which period the temporary administrator has all the powers of an ordinary administrator. There are several divisions in this class that will be discussed in the remaining sections of this chapter. They are as follows: 1. Administration during minority (durante minore aetate). 2. Administration during absence (durante absentia). lite). 4. Administration ad litem. 5. Administration ad colligendum. Much weaker proof is sufficient to raise the presumption of the death of an intestate on an application for the appointment of a temporary administrator to collect, than is required for the appointment of a permanent administrator. In some states such temporary administrations will be known as special administration for special and limited purposes, but they embrace the same divisions as have been given. § 83. Administration During Minority (Durante Minore Aetate) This is granted where a person who has been named as sole executor by the will, or who would have the right to administer an intestate estate, is still under age and therefore legally incapable of serving until he or she arrives at the proper age. As in the case of an administrator de bonis non, where the executor appointed by the will is under age, the temporary representative chosen by the court will be known as an “administrator during minority with the will annexed," while in the case of no will having been left, the office will be simply "administrator during minority." Where, however, it happens that there is more than one person named as executor in the will, and one is under age, no administrator will be appointed, since the remaining executor can perform his part of the work until the other becomes of age and can assume his share. If, in the case cited above, both executors had been under age, an administrator during minority with the will annexed would have been appointed, and his office would cease immediately upon one of the executors coming of age, and qualifying for the office. § 84. Administration During Absence (Durante Absentia) This is granted where the regular executor or administrator has gone out of the jurisdiction, either on business or pleasure, or is so ill that he cannot perform his duties for a time. As in administration during minority, the moment the executor or administrator returns or becomes well enough to attend to his duties, administration during absence immediately ceases. § 85. Administration for the Purpose of a Suit (Pendente Lite) This is granted while a suit is pending in respect to the will, and the administrator is to care for the estate only until the suit is ended. No one should be appointed by the court to this trust who stands committed as to the choice of one contestant against the other, nor should the decedent's estate be subjected to the cost and encumbrance of such an administration, |