1971-HKRS29-8-38_Part02 — Page 34

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(5) Every person in the chain of representation to a

Lestator-

(a) has the same rights in respect of the estate of that testator as the original executor would have had if living: and

(b) is, to the extent to which the estate of that testator has come to his hands, answerable as if he were an originsi

executor.

35. (1) Where--

On failure of Executors

(a)

1925, c. 49, 4. 165.

Appointment of administrator of intestate's estate.

18ST. c. 77, L. 71.

no executor is appointed by a will;

(b) all the executors are legally incapable of acting as such,

or have renounced;

(c) no executor survives the testator;

(d) all the executors die before obtaining probate or before having administered all the estate of the deceased:

(e) the executors have failed to appear to a citation to prove

or renounce probate: or

(f) the executors do not apply for probate, letters of administration with the will annexed may be granted to such person or persons as the court thinks fit.

(2) Where letters of administration with the will annexed are granted, the will of the deceased shall be performed and exercised in like manner as if probate thereof had been granted to an executor.

36. Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or where it appears to the court to be neces- sary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate, other than the person who, if this Ordinance had not been passed. would by law have been entitled to a grant of administration of such estals, the court may, subject to section 25, appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.

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37. (1) If at the expiration of twelve months from the death of a person any personal representative of the deceased to whom a grant has been made is residing out of Hong Kong the court may, on the application of any creditor or person interested in the estate of the deceased, grant to him special administration of the estate of such deceased person.

(2) The court may, for the purpose of any legal proceedings to which the administrator under the special administration is a party, order the transfer into the name of the Registrar of any money or securities belonging to the estate of the deceased person and all persons shall obey any such order.

(3) If the personal representative, capable of acting as such, returns to and resides within Hong Kong while any legal pro- ceedings to which a special administrator is a party are pending. that personal representative shall be made a party to the legal proceedings.

38. The costs of and incidental to the grant of special administration and the legal proceedings to which a special ad- ministrator is a party shall be paid by such person or out of such fund as the court in which the proceedings are pending may direct.

39. (1) Where ao infant is sole executor of a will, admin- istration with the will annexed shall be granted to his guardian. or to such other person as the court thinks fit, until the infant autains the age of twenty-one years, and on his attaining that age. and not before, probate of the will may be granted to him.

(2) Where a testator by his will appoints an infant to be ad executor, the appointment shall not operate to transfer any interest in the property of the deceased to the infant or to con- stitute him a personal representative for any purpose unless and until probate is granted to him under this section.

40, (1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant are pending the court may, subject to section 25, appoint an administrator of the estate of the deceased.

(2) An administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate.

(3) Every such administrator shall be subject to the im. mediate control of the court and act under its direction.

Grant of special administration. g. 191. 6

Payment of costs relating to special administration. 1925, c. 49. «. 164.

Case of infant being sole Executor. 1923, 6. 49. a. 165.

Appointment of administrator pendente lite. 1925, a, 49, n. 163.