The Sun.
London, England, 1834-07-12 00:00:00

I' ..:-..i..- 7,..:-.:. ki;

Lilt_ .r.'l;

.7:477:ft;e:Y1'15.,, er
.:J%-riA t r q.,7);:'
This case involves a question of great importance to p:
sons becoming sureties upon administration bonds.
Sir JoiiN Nlettou this day pronounced judgment as
follows :—This matter was argued before me some time
since, and was reserved for consideration before a decision
was given upon it. Mr. Leake and Mr. Smith have been
cited to show cause why an administration bond in which
they were sureties, given many years ago, should not be
sued at common law and be delivered out for that purpose,
and they have appeared under protest stating the circum-
stances of the case, upon which they submit that the Court
should not grant this application. The facts of the case
are these :—Mr. Nathaniel Middleton died in November,
1807 ; he left behind him Mrs. Frances Middleton, his
widow, and he left besides Mr. Hastings Nathaniel Mid-
dleton and four other sons and two daughters, and three
illegitimate children. One of the latter, then Mrs. Pattle,
and now Mrs. Robson, is the person who with the second
husband has taken out the present process against the
parties. Mr. Leake and Mr. Smith. The deceased, it ap-
pears, wrote a testamentary paper, dated in 1806 ; it was
not signed formally, hut it was all in the deceased's
own hand-writing. In that paper the deceased ap-
pointed his widow executrix and universal legatee in
trust. She renounced probate of that paper, and adminis-
tration with that will annexed was granted to Mr. Hastings
Nathaniel Middleton, as curator or guardian of Louisa
Ann Middleton, one of the daughters of that marriage,and
named in the will as a cestui que trust, and who was at that
time a minor of the age of ten or eleven ; and I think that
the Court must presume that though such will was neither
signed or dated, yet there were sufficient facts laid before
the Court to show that that paper was entitled to probate.
At all events it was annexed to the administration, and
therefore it was the same as i f probate had been taken of
it in the common form. Mr. Leake and Mr. Smith joined
Mr. Hastings Nathaniel Middleton as his sureties for the
faithful administration of the property for which he had
taken out administration during the minority of Miss Louisa
Ann Middleton, and according to that paper which was so
annexed ; and immediately after the administration passed,
a declaration instead of an inventory was brought in on the
part of Mr. Hastings Nathaniel Middleton. This admi-
nistration continued in force till November, 1817, which
was about ten years. At that time Miss Louisa Ann Mid-
dleton came of age, and consequently the administration
granted during her minority then ceased, after having con-
tinued this length of time. Whether from there being no
effects left, as it was supposed, unadministered, or from
some other cause, no new administration was at that time
taken by Miss Louisa Ann Middleton, and nothing was
then done on the part of the minor, now become of age, or
on the part of any of the creditors .of Mr. Nathaniel
Middleton, to take any further steps, either to call for a
further inventory, or an account of any thing of that kind.
No step of that kind was taken upon the expiration of that
administration. About four years afterwards, in Novem-
ber, 1821, Mr. Hastings Nathaniel Middleton died, and
he appointed executors, who took probate of his will. One
of these executors being still surviving, he therefore
has left representatives. But they in like manner have
never been in any manner whatever called upon either to
exhibit a different inventory, or to make themselves at all
accountable for any supposed mal-administration on the
part of Mr. Hastings Nathaniel Middleton. In May,
1823, about two years after the death of Mr. Hastings
Nathaniel Middleton, a process was taken out by Sir Ge-
rard Noel as a creditor of Nathaniel Middleton, reciting
the former administration with the will annexed of 1806,
stating that the administration had ceased, that no further
administration had been taken, and claiming to have an
administration de bonis non granted to him as a creditor ;
and he cited Miss Louisa Ann Middleton and the next of
kine to show cause why administration should not be granted
to him de bonis non, as a creditor of the deceased. That
process also appears to have been served upon Mrs. Rob-
son. In November, 1823, about three months afterwards,
a further process was taken out by Sir Gerard Noel to the
same effect, and that process was served upon Mrs. Her-
bert, who was Louisa Ann Middleton. No appearance
was given to either of these processes, nor was any mention
made, nor any suggestion that the former administration
with the will annexed of 1806 had been improperly granted,
as far as it went during the minority of Miss Middleton,
but merely that it had ceased, and that upon that ground
the administration should then be granted to the creditor.
But, in 1824, as it appears by the process itself, Mrs. Robson
interposed, who had no interest under the will of 1806, nor
under an intestacy, because, under the will of 1806, she would
not have been entitled to anything ; and under an intestacy she
would not have been entitled to anything, because she was an
illegitimate daughter ; but she appears to have interposed for
the purpose of preventing Sir Gerard Noel. from obtaining
administration as a creditor, and she took out a process re-
citing as the other processes had done, but also adding that
the deceased had made a will of 1788, with two codicils
annexed to that, and calling upon the next of kin, and
among others upon Louisa Ann Middleton, to show cause
why administration, with that will annexed, should not be
granted to her. No appearance being given, administration
was granted with that will annexed. So that there are now,
as appears by the records of the Court, two existing grants.
The latter grant is with the earlier will, and th earlier
grant with the latter will ; for the grant with the latter
will has not been in any way revoked. There has been no
party called upon to propound that paper, or to show cause
why the administration of that paper should not be revoked.
Nothing of that kind has been done. Under the circum-
stances, therefore, of the length of time which has expired,
and the administration never having been called upon, and
the irregularity of this second grant, and the apparent ac-
quiescence of all the parties in what was done under the
first administration, respecting which this bond is given, I
think that I cannot take upon me to take the step of allow-
ing this bond to be sued and to be attended with. And I
think under all the circumstances that sufficient cause has
been shown why this Court should not take any step for
the purpose of putting this bond in motion against the
sureties, and therefore I shall dismiss the application.