“In contrast with the position for an executor, for an administrator, the general rule is that a party entitled to a grant of administration can do nothing as administrator before obtaining a grant. This is because he derives his authority entirely from his appointment by the court; his entitlement to apply for a grant derives from the Probate Rules, and confers no title. Before this, the deceased’s property vests in the Public Trustee. After appointment, an administrator has the same rights and liabilities and is accountable as if he were the executor.”
“Representation of persons who cannot be ascertained, etc, in proceedings about estates, trusts and the construction of written instruments 21.4(1) This rule applies only to proceedings about - (a) the estate of someone who is dead; (b) property subject to a trust; or (c) the construction of a written instrument. (2) The court may appoint one or more persons to represent any person or class of persons (including an unborn person or persons) who is or may be interested in or affected by the proceedings (whether at present or for any future, contingent or unascertained interest) where - (a) the person, or the class or some member of it, cannot be ascertained or cannot readily be ascertained; (b) the person, or the class or some member of it, though ascertained cannot be found; or (c) it is expedient to do so for any other reason. (3) An application for an order to appoint a representative party under this rule may be made by - (a) any party; or (b) any person who wishes to be appointed as a representative party. (4) A representative appointed under this rule may be either a claimant or a defendant. (5) Where there is a representative claimant or representative defendant, a decision of the court is binding on everyone he represents.”
“Even this action was commenced by [Angela Sealy] with the intention to seek the benefit of the estate. On the filing of the papers, an application was made for her to be constituted as such. An Order of the Court was made accordingly, after argument, there has been no appeal and the matter proceeded on the basis that she was therefore duly constituted to bring this action.”
“It is only in those cases where the act is for the benefit of the estate that the relation back exists, by virtue of which relation the administrator is enabled to recover against such persons as have interfered with the estate, and thereby to prevent it from being prejudiced and despoiled.”
“I have … to consider whether an act done for the benefit of the estate means objectively an act which looking back is of benefit to the estate or whether it may include acts which were done subjectively for the benefit of the estate even though looking back they have not benefited the estate at all … I am satisfied, looking at all the cases as a whole, that relation back only occurs where it would be beneficial to the estate for the general doctrine not to operate. The exception applies to prevent injury to the estate, and in my judgment, the approach should be a purely objective one.”
“Suppose an actual promise to have been made to the plaintiff before he was administrator and within six years, either in writing or accompanied by a part payment …, we have no doubt the action would have been maintainable. It would have constituted a new contract with the plaintiff as administrator, founded on the consideration of the old debt; … and this being a contract with a person acting on behalf of the intestate's estate, and not on his own account, the administration would have relation back in order not to lose the benefit of that contract, upon the same principle that an action of trover is maintainable for a conversion of goods of an intestate after his death and before the grant of administration, and that an action of assumpsit by an administrator as such will lie on a contract of sale of goods of the intestate by a person meaning to act as agent for the benefit of the estate between the death and grant of administration…”
“I think that, on principle, and, historically, the vesting of the estate in the President is a positive act with some legal substance. Normally the court, formerly composed of the Probate Judge, appoints a person or persons to deal with the property of the intestate through a grant of administration, but I see no reason why in a case of necessity the President should not have legal power to give directions about the property. If he cannot do so, no one can. That is why the property is vested in him. If the President's position is such as I have indicated, I think he must have the legal capacity to receive a valid notice to quit, and such notice, after the proper lapse of time, has full legal effect. If no grant of administration has been made, there is no other person but the President to whom the notice to quit can validly be given. At any date subsequent to the death of the intestate, a grant of administration may be made. There is no time limit in this matter. If a grant made years after the death is to make invalid the notice to quit validly given to the President, confusion and uncertainty will prevail and injustice may be done to those who have acted on the assumption that the notice to quit given to the President had full legal effect.”
“[T]he principle of ‘relation back’ cannot be applied so as to invalidate interests lawfully acquired in the interval; and that to apply it in circumstances such as those of the present case leaves the landlord, it may be for years, in a position of intolerable doubt as to his rights; for instance, whether or not he can safely re-enter and deal with the property.”
“It seems to be a principle of law that where work is done on the credit of the estate by the order of one who afterwards obtains administration and ratifies the contract, the estate is bound if the work done is for the benefit of the estate. The essential conditions are that there should be a contract with some person professing to act for the estate, that the contract should be for the benefit of the estate, and that the person in question should afterwards become administrator and should after being so appointed have ratified the contract. Under those circumstances the case comes within the principle of law that a subsequent ratification of a contract by a person with authority to ratify it relates back to and supports the contract.”
“Speaking for myself only, I doubt whether Phillips, after he became administrator, and so was acting in the interests of other persons, could have ratified a prior contract made with himself.”
“It is quite clear that an executor derives his title and authority from the will of his testator and not from any grant of probate. The personal property of the testator, including all rights of action, vests in him upon the testator’s death, and the consequence is that he can institute an action in the character of executor before he proves the will. He cannot, it is true, obtain a decree before probate, but this is not because his title depends on probate, but because the production of probate is the only way in which, by the rules of the court, he is allowed to prove his title. An administrator, on the other hand, derives title solely under his grant, and cannot, therefore, institute an action as administrator before he gets his grant. The law on the point is well settled …” (Emphasis added)
“I have no doubt that the plaintiff’s action was incompetent at the date when the writ was issued, and that the doctrine of the relation back of an administrator’s title to his intestate’s property to the date of the intestate’s death when the grant has been obtained cannot be invoked so as to render an action competent which was incompetent when the writ was issued. In my judgment, the learned judge was wrong in coming to the contrary conclusion. It follows that no proper action was commenced before the statutory period of limitation expired. That period expired before any grant of administration was obtained, and the right of action was lost to the intestate’s estate. Although I cannot help feeling some regret I have no doubt but that the appeal must be allowed and the action dismissed.”
“I am sorry to say that we cannot grant an amendment to enable her to do this [ie to continue the claim in her subsequently-acquired capacity as administratrix], for it has been decided by this court … that we cannot.”
“I would add that these technicalities are a blot upon the administration of the law, and everyone except the successful party dislikes them.”
“[R]ules of court may provide for allowing a party to any action to claim relief in a new capacity … notwithstanding that he had no title to make that claim at the date of the commencement of the action.”
“The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.” (Emphasis added)
“The effect ofCPR rule 17.4 (4) is therefore to remove the effect of Ingall v Moran [1944] 1 K 160, the technicalities of which Singleton LJ in Finnegan v Cementation Co Ltd[1953] 1 QB 688 , 699, described as a ‘blot upon the administration of the law’.”
“[The amendment to the rules of court in what is nowCPR rule 17.4 (4)] gave effect to a recommendation of the Law Reform Committee, enacted as section 35(7), to deal with the anomaly that, where probate was granted to a person as executor, leave to amend to make a claim on behalf of the estate could be given because the title related back to the death, but where the plaintiff was subsequently granted letters of administration in such cases, the title related back to the date of the grant, which would have been after the issue of the writ. This had the effect of removing the grave injustice caused by such decisions as Ingall v Moran[1944] KB 160 (CA); Hilton v Sutton Steam Laundry[1946] KB 65 (CA); Burns v Campbell[1952] 1 KB 15 ; Finnegan v Cementation Co Ltd[1953] 1 QB 688 (CA).”
“I regard it as clear law, at least since Ingall, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity.”
“What [Ingall] decided, by a decision binding upon us, is that a claim purportedly brought on behalf of an intestate’s estate by a claimant without a grant is an incurable nullity. Subject only to whatever rule 19.8(1) may empower, it follows that the claim the claimants issued was equally an incurable nullity. … I … consider that rule 19.8(1) has no application to the present case … rule 19.8(1) does not, in my view, have any role to play in the way of correcting deficiencies in the manner in which proceedings have been instituted. It certainly says nothing express to that effect and I see no reason to read it as implicitly creating any such jurisdiction. It is, I consider, concerned exclusively with giving directions for the forward prosecution towards trial of validly instituted proceedings when a relevant death requires their giving. In the typical case, that death will occur during their currency and will usually be of a party. More unusually, it may have preceded them. But on any basis it appears to me clear that it is no part of the function of rule 19.8(1) to cure nullities and give life to proceedings such as the present which were born dead and incapable of being revived. In ordinary circumstances there is no reason why anyone with a legitimate interest in bringing a claim on behalf of an intestate’s estate should not first obtain a grant of administration and so clothe himself with a title to sue. I am unable to interpret rule 19.8(1) as providing an optional alternative to such ordinary course.”
“Arguments such as that which the defendant successfully raised before the judge in this case are never very attractive, and one of the purposes of the CPR is to rid the law of unnecessary technical procedural rules which can operate as traps for litigants. However, whatever one’s views of the value of the principle applied and approved in Ingall v. Moran[1944] KB 160 , it is a well-established principle, and, once one concludes that it has not been abrogated byCPR rule 19.8 , it was the judge’s duty to follow it, as it is the duty of this court, at least in the absence of any powerful contrary reason. The need for consistency, clarity and adherence to the established principles is much greater than the avoidance of a technical rule, particularly one which has a discernible purpose, namely to ensure that an action is brought by an appropriate claimant.”
“In my judgment, there is no such discretion where the claim is a nullity, as the Millburn-Snell case and the more historic decisions make clear it is. If the Meerza case is not distinguishable I find myself constrained to depart from the reasoning and judgment of Peter Smith J.”
“[T]here is a long line of cases which establish that if a plaintiff brings an action in a representative capacity, then the writ is a nullity if the plaintiff did not have that capacity at the date of the issue of the writ. Further, the doctrine of relation back cannot in such a case be invoked to render competent an action which was incompetent when the writ was issued. See for example Ingall v Moran ([1944] 1 All ER 97 ;[1944] 1 KB 160 ’ 113 LJKB 298, 170 LT 57, 60 TLR 120, 88 Sol Jo 68, CA, 2nd Digest Supp) Hilton v SuttonSteam Laundry ([1945] 2 All ER 425 ;[1946] KB 65 , 115 LJKB 33, 174 LT 31, CA, 2nd Digest Supp) and Finnegan v Cementation Co Ltd ([1953] 1 All ER 1130 ;[1953] 1 QB 688 , 96 Sol Jo 332, CA, 3rd Digest Supp), which are all decisions of the Court of Appeal in England. The same principles, in my opinion, are applicable where the defendant is sued (see RSC [T], Order 3, rule 4). Ignoring, therefore, the description in the title of the writ, and construing the indorsement, I have come to the conclusion that I must accept as correct the submission of counsel for the defendant that the defendant is sued here first in her personal capacity and then in a representative capacity, which she had not at the date of the issue of the writ. It is clear, in my judgment, that it was incompetent for the plaintiff to sue the defendant in a representative capacity and the fact that the defendant acquired that capacity subsequent to the issue of the writ matters not, because the doctrine of relation back has no application in such circumstances.”
“An order of the court was made accordingly, after argument, there has been no appeal and the matter proceeded on the basis that she was therefore duly constituted to bring this action.”
“The powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal.”
“Parke, B. All the cases are collected in a recent case in the Common Pleas, Tharpe v. Stallwood (12 Law J., Rep. (N. S.) C. P., 241), where it was held that an administrator might maintain trespass for an injury done to the goods of his intestate after the death of the intestate, and before the grant of letters of administration. That arises from the necessity of the thing, for, unless such a right existed, the goods might be lost.” (page 1181, emphasis added)”
“5-18 Cases may, however, be found, where the letters of administration have been held to relate back to the death of the intestate, so as to give a validity to acts done before the letters were obtained. Thus, if a man takes the goods of the intestate as executor de son tort, and sells them, and afterwards obtains letters of administration, it seems the sale is good by relation and the wrong is purged. An administrator can recover in trespass or for wrongful interference with goods against a wrongdoer who has seized or converted goods before the grant. The reason for this is that otherwise there would be no remedy for this wrongdoing. Further, it has been held that where the administrator might sue in respect of a conversion that occurred between the death of the intestate and the grant of administration, he might waive the tort and recover as on contract. Thus, where money belonging to the intestate at the time of his death, or due to him and paid in after his death, or proceeding from the sale of his effects after his death, had, before the grant of administration, been applied by a stranger to the payment of the intestate’s debts and funeral expenses, the administrator could recover it from such stranger as money had and received to his use as administrator. 5-19 It would also seem that whenever anyone acting on behalf of the intestate’s estate and for its benefit, and not on his own account, makes a contract with another before any grant of administration, the administration will have relation back, so that the benefit of the contract is not lost and the administrator may sue upon it, as made with himself. Similarly, if during the time when there is no personal representative, services have been rendered which not only were for the benefit of the estate, but also were rendered under a contract with someone who subsequently, by becoming administrator, became authorised to bind the estate, and who ratified the contract, the estate of the deceased is liable for such services. It seems also that the grant of administration vests leasehold property in the administrator by relation, so as to enable him to bring actions for all matters affecting that property after the death of the intestate, and so to render him liable to account for the rents and profits of it from the death of the intestate. Such relation back exists only in those cases where the act done is for the benefit of the estate. Accordingly, where the widow of an intestate had remained in possession of her husband’s property for some time after his decease, and the intestate’s son had not interfered in any way with the property, which was seized under a writ of fi. fa. issued against the widow, and the son afterwards took out administration, it was held that there was no evidence from which the administrator’s consent to the widow’s taking the property could be implied, and by Parke B. that even if there had been, the estate was not bound by it, as the act to which the consent was given did not benefit the estate.”
“Ratification can only be by a person ascertained at the time of the act done,—by a person in existence either actually or in contemplation of law; as in the case of assignees of bankrupts and administrators, whose title, for the protection of the estate, vests by relation.”
“By reason of the general rule referred to above, a person has no right even to commence proceedings as an administrator before letters of administration have issued for, until such time, he has no right of action. Under existing case law, the subsequent issue of letters of administration will not assist, for the grant does not for this purpose relate back. …”
“ On the basis of these authorities, it has been held that proceedings brought by a person supposedly as administrator, but before obtaining a grant, are a nullity which cannot be validated by a later grant of administration… It has been suggested that an exception to the above principle may exist where it is necessary for the person who is entitled to the grant of letters of administration to take possession of the deceased’s personal property to safeguard the estate; he has an immediate right to possession enforceable by action, but this has been considered and disapproved (and found to be obiter), albeit in a decision of a Chancery Master. In certain cases, however, for example to claim an account from an executor de son tort or by derivative action, it may be possible for a person interested in the estate to issue a claim before grant seeking to safeguard the estate, in his capacity as a beneficiary.”
“the result would be that an option, which must be finally exercised within a limited time, would be well exercised after that time.”
“…a notice given by the administrator of the deceased partner within the three months of his death, but before taking out letters of administration, was not an effectual notice within the meaning of the agreement, because the letters of administration had no relation back to the act of giving notice, so as to clothe him with the character of administrator at that time.”
“Nor is it necessary to consider the many cases which show that once letters are granted the title of the administrator relates back to the death. They have no application to this question. All they show is that, once letters have been obtained, the title relates back so that the administrator may sue in respect of matters which have arisen between the date of the death and the date of the grant, just as he may sue in respect of a cause of action that had accrued to the intestate before his death, provided the cause of action survives. The result is that this action was, and always remained, incompetent, and judgment ought to have been entered for the defendant.”
“In a tryal between Long and Hebb and others, it was said by Roll Chief Justice, that letters of administration do relate to the time of the death of the intestate, and not to the time of granting of them, and therefore an administrator may bring an action of trespass or a trover and conversion for goods of the intestate taken by one before the letters granted unto him, otherwise there would be no remedy for this wrong done.”
“An act done by a party who afterwards becomes administrator, to the prejudice of the estate, is not made good by the subsequent administration. It is only in those cases where the act is for the benefit of the estate that the relation back exists, by virtue of which relation the administrator is enabled to recover against such persons as have interfered with the estate, and thereby to prevent it from being prejudiced and despoiled.”
“The relation [back] being established for the benefit of the intestate’s estate, against a wrongdoer, we do not see why it should not be equally available to enable the administrator to obtain the benefit of a contract intermediately made by suing the contracting party; and cases might be put in which the right to sue on the contract would be more beneficial to the estate than the right to recover the value of the goods themselves. In the present case, there is no occasion to have recourse to the doctrine, that one may waive a tort and recover on a contract; for here the sale was made by a person who intended to act as agent for the person, whoever he might happen to be, who legally represented the intestate’s estate; and it was ratified by the plaintiff, after he became administrator: and, when one means to act as agent for another, a subsequent ratification by the other is always equivalent to a prior command; nor is it any objection that the intended principal was unknown, at the time, to the person who intended to be the agent …”
“It is clear the plaintiff might have maintained detinue or trover for the debentures; but when the act that is done is in its nature tortious, it is hard to turn that into a contract, and against the reason of assumpsits. But the plaintiff may dispense with the wrong, and suppose the sale made by his consent, and bring an action for the money they were sold for, as money received to his use. It has been carried thus far already.”
“It would also seem that whenever anyone acting on behalf of the intestate’s estate and for its benefit, and not on his own account, makes a contract with another before any grant of administration, the administration will have relation back, so that the benefit of the contract is not lost and the administrator may sue upon it, as made with himself.”
“[I]t was argued that if an acknowledgment is in fact made, it is immaterial to whom it is made. Such appears to have been considered the law at one time, and there are certainly some dicta to that effect; but that is not the law now. … The case specially relied on by the plaintiffs was Clark v Hooper, where a payment had been made to a person as administratrix, who had not in fact taken out administration in the proper diocese. There were, doubtless, in that case dicta … that the payment had the same effect as an acknowledgment to a third person, which seems to have been thought by those judges sufficient. But I do not think that at the present time the decision can be supported on that ground.”
“There may be an exception to the rule in the case of a payment to a person filling a representative capacity, or who was believed to fill that capacity; in such a case the payment might enure for the benefit of the persons for whose benefit it was believed to be made. This would support the decision in Clark v Hooper. The payment there was made to the administratrix in her representative capacity, with the intention that it should enure for the benefit of the estate of the intestate, and when a proper administration was taken out the administratrix would be able to take advantage of the payment. Unless Clark v Hooper can be supported on that ground, I do not think it can be supported consistently with other decisions. At the time when the payment was made there was no other representative of the estate, there was no other person to whom the payment could have been made, and the intention of the debtor was to make the payment to the estate, not to the individual who received it. However, in my opinion there is now no question that a payment or acknowledgment must be made to the creditor or his agent.”
“It seems to be a principle of law that where work is done on the credit of the estate by the order of one who afterwards obtains administration and ratifies the contract, the estate is bound if the work done is for the benefit of the estate.”
“The essential conditions are that there should be a contract with some person professing to act for the estate, that the contract should be for the benefit of the estate, and that the person in question should afterwards become administrator and should after being so appointed have ratified the contract. Under those circumstances the case comes within the principle of law that a subsequent ratification of a contract by a person with authority to ratify it relates back to and supports the contract.”
“[Ratification] operates normally to cure minor defects in an agent’s authority, minimising technical defences and preventing unnecessary lawsuits”
“At any date subsequent to the death of the intestate, a grant of administration may be made. There is no time limit in this matter. If a grant made years after the death is to make invalid the notice to quit validly given to the President, confusion and uncertainty will prevail and injustice may be done to those who have acted on the assumption that the notice to quit given to the President had full legal effect.”
“the principle of ‘relation back’ cannot be applied so as to invalidate interests lawfully acquired in the interval [between the death and the grant]; and that to apply it in circumstances such as those of the present case leaves the landlord, it may be for years, in a position of intolerable doubt as to his rights; for instance, whether or not he can safely re-enter and deal with the property.”