In re HOAREY. CUSSEN, J. 1906 Probate practice-Administration de bonis non-Executors of first administrator— April 20, 22, 23. 8. 9. The Court has a discretion as to whether it will grant administration de bonis non to the next of kin of the deceased or the representatives of the administrator. The foundation of every application for administration is the advertisement; if, therefore, the advertisement states that the applicant, a trustee company, is applying on the authority of one of the next of kin, who is not himself entitled to a grant, and the application is opposed, the applicant is not entitled to rely on the support of other of the next of kin as being in any sense equivalent to prior authority from him. Re Maynard ([1886] 12 V.L.R. 313) followed. The authority conferred by general words in a power of attorney is restricted to what is necessary for the proper execution of the special powers contained therein, and general words are construed as enlarging the special powers where necessary, and only where necessary, for the accomplishment of the purposes for which the authority is given. A power of attorney authorized A. to apply for and obtain letters of administration, to take steps to compel a proper administration, etc., and generally to act as attorney in Australia in relation to the premises, and to execute and do all instruments, acts, and things as fully and effectually in all respects as the grantor could himself do if personally present. Held, that the attorney had no power to support the application of another person for letters of administration de bonis non to the intestate's estate. Quare, whether under sec. 9 of "The Equity Trustees Executors and Agency Act" 1888 (No. 978) an executor, administrator, or trustee can permanently appoint the company to act in his stead. ORDER nisi for grant of administration de bonis non. This was an order nisi obtained by the Equity Trustees Executors and Agency Co. Ltd. calling on the National Trustees Executors and Agency Co. Ltd., the executors of the estate of Michael Hoarey, deceased, to show cause why administration de bonis non of the estate of Margaret Hoarey deceased should not be granted to the applicant. An application was also made by the National Trustees Executors and Agency Co. Ltd. for administration de bonis non of the estate of Margaret Hoarey deceased. By arrangement between the parties both matters were heard together. The facts are fully set forth in the judgment of Cussen, J. CUSSEN, J. 1906 In re HOAREY. Bryant to move the order absolute on behalf of the Equity Trustees Co. Ltd. Hayes to show cause on behalf of the National Trustees Executors Co. Ltd.-The application of the Equity Trustees Company is made on the authority of John Sweeney, one of the next of kin, but, as he has accepted 1000l. in full satisfaction of his share, he has no interest in the estate and is not entitled to administration. It is not open on these proceedings for him to impeach this release: In re Healey (a). The power of attorney given by Michael Hoarey to the Equity Trustees Executors and Agency Co. purports to substitute the company for the administrator in all respects, and is irrevocable; it is contended that such power is ultra vires, and that the Equity Company may not be entitled to any commission, and that therefore it would be to the detriment of the estate to grant it administration de bonis non, as it would then have to decide what commission (if any) is payable. That company's Act (No. 978), sec. 10, provides a mode for substituting the company for an administrator, and that has not been followed. The grant should be made to the applicant representing the greatest interest: Williams on Executors (10th ed.), vol. i., p. 322 ; Re Middleton (b); Savage v. Blythe (c); Fielder v. Hanger (d); Re Pourtney (e); Partington v. Attorney-General (f); Re Parsons (g). The applicant cannot rely on authorization not set forth in its advertisement: Re Maynard (h). In any case the attorney of Charles Sweeney has no authority to authorize such an application as this. Bryant-The next of kin are entitled as of right to administration in priority to any other applicant. The law is set forth in Williams on Executors (10th ed.), pp. 346, 347, 382, and 384; Almes v. Almes (i); Re Johnson (k). Even if John Sweeney and Mary Blackburn have no interest in the estate, Charles Sweeney is still interested. The general words in the power of attorney 1906 extend the authority of the attorney to matters ejusdem generis: CUSSEN, J. CUSSEN, J. The Victorian cases seem to show that the Judge has a wide discretion, but the practice has been to prefer the next of kin to the representatives of the administrator: In re O'Flaherty (n); In re Stanton (o); In re Beavan (p); In re McIvor (q); In re Monichon (r); In re Leahy (s). Cur. adv. vult. CUSSEN, J., read the following judgment:-On 13th March 1903, Margaret Hoarey died, leaving her widower, Michael Hoarey, and also her sister, Mary Blackburn, and her brothers, John and Charles Sweeney, her sole next of kin, all residing within the jurisdiction except Charles Sweeney, who then resided, and still resides, in Ireland. At the time of her death there was in her name real estate to the value of 11,5001. and personal estate of the value of about 3007., and she had liabilities to the extent of about 3700l., the whole or a great part of which was secured on the real estate, which consisted of a country hotel, suburban properties, and some country lands, the last-mentioned of small value. Apparently the husband, Michael Hoarey, was making some claim that the whole or a great part of the property above referred to was bought with his money, and was held as trustee for him, and before he obtained probate he made an arrangement with Mary Blackburn and John Sweeney whereby, in consideration of his agreeing to pay them 1000l. each, they agreed to release him and the estate from all claims. This arrangement was embodied in a document called a release, dated the 22nd June 1903, which recited that the property was held by Margaret Hoarey as trustee for Michael Hoarey, and contained as well as a release of the claims of Mary Blackburn and Charles Sweeney the usual covenants for indemnity. The sum of 10007. In re HOAREY. (p) [1881] 7 V.L.R. (I.P.M.) 24. 1906 In re HOAREY. It CUSSEN, J. agreed to be paid was not much less than the one-sixth share to which each of the beneficiaries would be entitled after provision had been made for duty, administration, and realization expenses. was apparently hoped, perhaps anticipated, that a similar arrangement would be made with Charles Sweeney, as was afterwards in fact done. Michael Hoarey next applied for administration of the estate of his wife, which was granted on the 9th July 1903, and about the same time or shortly afterwards he agreed with the Equity Trustees Executors and Agency Company Ltd. that it should become the surety for the administration bond necessary to obtain the issue of the letters of administration, and, purporting, as I understand, to act under sec. 9 of the company's private Act No. 978, he executed a document called "Appointment of company as administrator and power of attorney," which, after stating that a grant of administration had been made to Michael Hoarey, that the company had agreed to become surety to the bond, and that thereupon an agreement had been made, went on to state that in pursuance of such agreement and for the consideration aforesaid "I as such administrator do hereby irrevocably appoint the said company to act as administrator of the said estate in my stead as effectively as I could have acted and irrevocably authorize the said company to exercise all discretionary and other powers which are now or which on the issue of such letters of administration will be vested in or possessed by me as such administrator as fully as I could have exercised the same." The document also contained covenants not to revoke; to confirm all acts done; not to act himself; for further assurance and an irrevocable appointment as attorney to do all acts and execute all documents which the company in its absolute discretion should consider necessary or advisable in administering or managing the estate. The consent of the Court was not obtained. to the transfer of administration purported to be made by this document, and I am inclined to think that a comparison with sec. 10 of the company's private Act shows that the transaction is not of the nature contemplated by sec. 9, which seems to refer to particular acts and temporary action. It is, however, unnecessary to decide this absolutely, and I only mention the matter because this is the document under which the Equity Company in fact acted, and because it claims that such action and its results should 1906 In re HOAREY. at all events affect the discretion of the Court in deciding the CUSSEN, J. question in controversy. The Equity Company having become surety to the bond, letters of administration issued to Michael Hoarey, and immediately afterwards the two sums of 1,000l. necessary to pay off Mary Blackburn and John Sweeney were advanced by the Equity Company and paid, and thereupon a second document, also called a release, dated the 31st July 1903, was executed between Mary Blackburn, John Sweeney, the Equity Company, and Michael Hoarey, which recited the previous agreement and the recitals in it, and also recited that letters of administration had been granted to Michael Hoarey; that the net balance of the estate was 80671.; that the Equity Company had become surety to the bond, and that letters of administration were issued on the 29th July 1903, and which witnessed that in consideration of the payment of 1000l. each to Mary Blackburn and John Sweeney, the receipt of which was acknowledged, they and each of them released the estate of Margaret Hoarey and also Michael Hoarey, his executors, etc., and the Equity Company from all claims; they and each of them covenanted as before, and further that neither of them would take any proceedings whatever in the matter of the said estate, and they and each of them transferred, assigned, and set over their respective shares to Michael Hoarey, his executors, etc. I think that this document, until set aside, by reason of the assignment of the shares and the covenants contained in it, amounts in effect to a renunciation by Mary Blackburn and John Sweeney of any right which they might have to apply for administration de bonis non. On the 28th May 1904 Charles Sweeney executed a power of attorney to Mr. Edward Dillon, authorizing him to apply for and obtain letters of administration; to take steps to compel a proper administration, and if he thought fit to adjust, settle, and compromise his claim as one of the next of kin to a share in such estate for such share as the attorney might think proper, and to receive and give effectual receipts and discharges for the said sum, and generally to act as Charles Sweeney's attorney in Australia in relation to the premises, and on his behalf to execute and do all instruments, acts, and things as fully and effectually in all respects as the said Charles Sweeney could himself do if personally present. In pursuance of this power |