
    Joseph Cutchin v. William Wilkinson.
    [Saturday, April 22d, 1797.]
    Executors and Administrators -Right to Appointment —Persons Preferred. — [W. died intestate, leaving a -widow and three children; the children died infants and intestate, in the life-time of their mother; the widow administered on the estate of her husband; — died, leaving a will appointing executors. The brother o[ the widow was adjudged entitled to the administration de bonis non of the husband, in preference to W.’s brother. But, it seems, had the executors of the widow applied, the administration would have been committed to them.]
    Willis Wilkinson died intestate, leaving a widow and three children on the 22d day of April, 1793, and administration of his estate was granted to Mrs. Wilkinson his widow, who was the mother of the said children. The children all died intestate, under age and without issue, in the lifetime of their mother, that is to say, two of them before, and the other upon the 10th day of May, 1793. Mrs. Wilkinson died on the 1st day of November, 1793, leaving a will, whereof she appointed executors, who accepted the office. Upon the death of Mrs. Wilkinson, application for administration of the unadministered estate of Willis Wilkinson was made to the County Court, by Joseph Cutchin who was her brother, and by William Wilkinson brother of the said Willis Wilkinson. The County Court committed the administration to Cutchin; and Wilkinson appealed to the District Court: Where the judgment of the County Court was reversed, and the administration committed to Wilkinson, upon which Cut-chin appealed to this Court.
    Wickham, for the appellant.
    The appellee clearly had no title to the administration. When Willis Wilkinson died, his personal estate vested in his then representatives, [Browne v. Shore et 4 ux.] 1 Show. 25; and these *were his wife and children. Upon whose decease their representatives became entitled to the estate ; and consequently to the administration. Eor, it is a rule that the person having title to the estate, ought to have the administration; because he is most interested and will take most care of it. This doctrine always governed the Courts of England. Richardson’s Wills, 406 ; 2 Eq. Ca. Abr. 423, pl. 5, Ibid. 425, pl. 15 ; and has always been considered as the law of this country.
    But independent of this, by the act of Assembly passed in the year 1748, C. 5, § 14, [5 Stat. Larg. 458,] administration is first to be granted to the husband or wife, and then to the child or children of their legal, representatives ; which expressly includes the present case. But the act of 1785, [C. 61, § 26, 12 Stat. Large. 146,] puts it beyond all doubt. Eor, it declares that it shall be granted to the person entitled to distribution. Which is decisive against the appellee ; who has no title to the estate, or any distributive share thereof. Consequently, as well upon the authority of adjudged cases, as upon the plain directions of the statutes, the judgment of the District Court was clearly wrong and ought to be reversed.
    Ronold, contra.
    Mr. Wickham assumes, as the ground of his argument, that the estate vested absolutely in the widow and children on the death of Willis Wilkinson; and therefore he infers that the representatives of the widow who survived the children, are entitled to the administration. This argument would be just, if the principle were correct ; but the principle is not correct ; and therefore the argument fails. The estate vests in the administrators of the first intestate for the payment of his debts, in the first place; and the distributees, whose claim is only to the surplus after the debts are paid, are not entitled until they are satisfied.
    The question then is, to whom administration of the unadministered estate, thus subject to payment of debts, ought to be committed in the present case ? The English authorities in all cases of administration prefer the next of kin of the 5 person to whom *the estate belonged, and not of those entitled to the surplus.
    The next of kin to the first decedent has never been rejected in cases like the present ; and our act of Assembly, so far from supporting a contrary doctrine, in fact says nothing about an administration de bonis non.
    Marshall, in reply.
    It is unnecessary to repeat the general principle, that the distributee is entitled to the administration, both upon the authority of adjudged cases and the express directions of the act of Assembly; because that point seems to rest on a basis much too solid to be shaken. Mr. Ronold has, however, taken a distinction between an original administration and an administration de bonis non. The first he appears to admit to be within the act of Assembly, but the last not; and therefore he would make the grant of the latter depend upon a different rule, from that of the former. But this distinction cannot be maintained ; for, it goes the length of establishing one law for the administration of part, and another for the administration of the whole : Which would be absurd. No case is produced to shew that the next of kin ever was preferred ; whilst those cited by Mr. Wick-ham expressly decide that he has no title.
    But it is said that the estate was liable for the debts of Willis Wilkinson, and that the distributee has no title until the debts are paid. This, however, does not alter the case. For, under that view of the subject, the rights of the creditors is the only important consideration; and the property would be just as liable to their claims in the hands of the distributee, as in those of the next of kin; therefore, that circumstance cannot affect the cause. In the case in Shower, it was said, if the person entitled to distribution die, his representative shall have the administration. Yet there also the estate would be liable to the debts of the first decedent. That case, therefore, decides the question now before the Court; and may be considered as in express 6 authority *in our favor upon this as well as the other points in the cause.
    Ronold. Then mentioned the case of Palmer v. Allicock, 3 Mod. 58, [2 Show. 407, 486, Comb. 14,] as proving what he contended for.
    Wickham. That case does not affect the present. For, it does not appear upon what point it was decided. In Comb. 14, no notice is taken of the point made by Mr. Ronold, the jurisdiction and vesting only being spoken of ; and although it is said no interest vested, yet it is to be observed that in the same book, page 112, it is said that the Judges were of different opinions upon that point, and that the cause was decided on another. Which is confirmed by 2 Show. 486; who says, expressly, that three of the Judges determined it upon the ground of their having no jurisdiction ; and that only one Judge held no interest vested. Which latter opinion the Reporter makes a quaere of ; and says that the interest was clearly vested by the act of distribution ; and that it had been so held in the Chancery and Exchequer all along.
    
      
      Executors and Administrators— Right to Appointment-Persons Preferred. — The person entitled to the estate of a decedent, is entitled to the administration. For this proposition the principal ca se is cited with approval in Bridgeman v. Bridgeman, 30 W. Va. 217, 3 S. E. Rep. 583; Thornton v. Winston, 4 Leigh 158; Hendren v. Golgin. 4 Munf. 233 et sea.-, Chichester y. Vass, 1 Munf. 115. For a full collection of authorities on this subject, see monographic note on “Executors and Administrators” appended to Rosser v. Depriest. 5 Gratt. 6.
      Appeal — When Premature — Grant of Administration. — An appeal from an order of court granting administration of an estate, being taken before the court has proceeded to direct bond and security to be given, or to prescribe the amount of the bond, is premature, and ought to be dismissed as improvidently awarded. Bohn v. Sheppard, 4 Munf. 422, citing and discussing the principal case.
    
   PER CUR.

The precedents cited and the arguments urged by the appellant’s counsel are decisive. They prove, that the person entitled to the estate is entitled to the administration also ; and consequently that the appellee has no title. The only question which could have arisen, would have been between Cutchin and the executors of the widow; but as the executors do not appear to have made any opposition, and as the appellee had no right, the District Court certainly erred in reversing the judgment of the County Court. Therefore, the judgment of the District Court must be reversed, and that of the County Court affirmed.  