
    *Thornton v. Winston.
    January, 1833.
    (Absent Brooke, J.)
    Executors — Renunciation in Pais. — There may be a valid renunciation of the executorship of a will, by matter in pais.
    Same — Renunciation — Effect. — An executrix declines to qualify as such, and agrees that administration with the will annexed shall be granted to her daughter, reserving her right to qualify after her daughter’s death: Held, this renunciation of the executorship is absolute and perpetual, and cannot be retracted after the death of the admin-istratrix, nor does the nomination of the executrix in the will, give her any preferable right to the administration de bonis non with the will annexed.
    Estate of Decedent — Who Entitled! to Administer.— The person entitled to the estate of a decedent, is entitled to the administration.
    Wills — Provision of Personalty for W ifie — Right to Residuum — Statute.—A testator by his will gives personal property to his wife, and she takes the provision made for her by the will: Held, she is entitled to no part of an undisposed of residuum, as distributee of her husband, being excluded from distribution by the statute, 1 Rev. Code, ch. 104, § 26, and in a contest between the widow and a distributee, for administration with the will annexed, the distributee Is entitled to it.
    John Thornton, late of Culpeper, died in 1822, having first duly made and published his last will and testament, whereby, inter alia, he devised and bequeathed sundry real and personal estate to his wife Jane Thornton (it seemed a very large provision for her) and named her and his son George Thornton executrix and executor. The will was proved in the county court of Culpeper, at April term 1822. George Thornton died in 1824, without having qualified as executor of the will ; neither did Mrs. Thornton ever qualify as executrix. The testator’s estate remained wholly unrepresented until the March term of the county court 1826, when the court granted administration with the will annexed to Prances Thornton, a daughter of the testator, with the express assent of the executrix Mrs. Thornton, who declared her-agreement that the administration should be granted to her daughter, but said, at the same time, that she reserved her right to qualify after her daughter’s death : but this assent and agreement of Mrs. Thornton, to the grant of administration with the will annexed to her daughter, *and reservation of her own right to qualify after the daughter’s death, were not entered of record, and, indeed, were mere parol declarations, upon which, however, the court proceeded to grant the administration. Prances Thornton, the administratrix, died in 1828.
    The testator, John Thornton, had been an officer of the army during the war of the revolution, and, as such, had a claim against the U. States for half pay for life from the termination of his service, or commutation of five years full pay : this claim was nowise disposed of, or even mentioned, in his will, so that, as to it, he died intestate. The testator, besides his son George and daughter Prances, left several descendants living at his death; namely, several grandchildren, the children of a daughter then deceased, and a grandson, James Winston, the only child of another daughter then also deceased, who had been the wife of Isaac Winston: these grandchildren, of course, were distribu-tees of the testator, and entitled to shares of the personal subject undisposed of by his will. The grandson James Winston died in 1831, leaving a will, by which he devised and bequeathed his whole estate real and personal, and especially his share of his grandfather’s recently discovered claim against the U. States, to his father Isaac Winston, the appellee.
    It being necessary that the testator’s estate should be represented, in order to prosecute the claim against the U. States, Isaac Winston applied to the county court of Culpeper, at February term 1832, for administration de bonis non, with the will annexed; and his application was opposed by the appellant, Mrs. Thornton, the widow of the testator and executrix named in his will, who at the same time apDlied for a grant of the administration to her. The county court, at April t.erm 1832, by one sentence, denied the administration to Winston, and by another, granted it to Mrs. Thornton. Winston appealed to the circuit court of Culpeper, which reversed both the sentences^of the county court, and granted the administration to Winston. And *then, upon the application of Mrs. Thornton, this court allowed her an appeal from the sentence of the circuit court.
    Harrison argued for the appellant,
    1. That she had, in effect, never renounced the exec-utorship of her husband’s will: that it was necessary to constitute a valid renunciation of such a rig-ht, that the executrix should have been cited to appear before the court of probat, and should thereupon have renounced the executorship, and such renunciation entered and recorded ; that a refusal by any act in pais, as by a mere verbal declaration to that effect, is not sufficient, but to give it validity it must be thus solemnly entered and recorded. Toller’s Taw of ex’ors, 41, 2, 93. He said the cases of Geddy v. Butler, 3 Munf. 345, Kelson v. Carrington, 4 Id. 332, and Burnley v. Duke, 1 Rand. 108, in which it had been held that the renunciation of an executorship may be by act in pais, were distinguishable from the present case : in those cases, the right to the administration was not, as it was here, the point in contest. And here, as the executrix did not, by any act valid in law, renounce the executorship, so neither did she, in fact, renounce or intend to renounce it; for she expressly reserved her right to qualify after the death of her daughter, to whom she agreed, that administration with the will annexed should be granted. 2. He contended, that if the executrix had, in the most solemn and binding manner, renounced the ■executorship, and thereupon administration with the will annexed had been granted to another, — though she could not have retracted her refusal during the lifetime of the administrator, yet she bad a right to do so after the grant of administration had ceased by the administrator’s death, and then would have been entitled to the executorship or to the administration de bonis non with the will annexed; to which point he cited Toll. Taw of ex’ors, 45, 92. But, 3. Supposing this a general question which of the parties was entitled *to administration of the decedent’s estate, the statute gave the preference to the widow over all other persons. 1 Rev. Code, ch. 104, § 20, 32, pp. 379, 382.
    W. Green and Teigh, for the appellee,
    maintained, that a valid and binding renunciation of the right of executorship may be made by act in pais, and that the cases of Geddy v. Butler, Nelson v. Carrington, and Burnley v, Duke, were in point to that purpose. And they cited the case of Broker v. Charter, Cro. Eliz. 92, to shew, not only that ’ an executor’s renunciation of executorship m ay as well be by matter in fact a s by j udicial act, but that such a renunciation once made by an executor, however qualified, io favor of a particular person, is absolute, peremptory and perpetual. The reason was, that though an executor may renounce, he cannot assign, his right of executorship. The executrix, in this case, having duly renounced the execu-torship, and the other executor named in the will having previously died without ever qualifying, the testator was dead intestate (that is. in the technical sense, without having constituted any executor) as much as if he had made a testamentary disposition of his property without naming any executor, in which case the paper (technically speaking) would have been a codicil. 3Bac. Abr. Ex’ors and Adm’rs, C. p. 27; Shop. Touchs. 406. It was, indeed, only because the decedent, in such case, was thus intestate in law, that an administration could be granted: and when, by the refusal of a sole executor, if only one, or of all the executors, if more than one named in the will, or of the survivors after the death of the others,a decedent was become intestate in law, there could never afterwards be an executor, but only an administrator with the will annexed ; and the refusing executor could neither qualify as executor, nor derive, from the nomination of him as executor in the will, any preferable claim to the administration : he stood, now, on the same ground as if he had not been named executor in the will. Broker v. Charter, ubi supra; Hensloe’s case, 9 Co. 37, 38, 40 ; Shep. Touchs. 461,2, 6, 7 ; Plowd. *281, 2; Wangford v. Wangford, 1 Salk. 308 ; House v. Tord Petre, Id. 311. As to the passages cited by the appellant’s counsel from Toller’s Taw of ex’ors, 42, 3, 92, that, after administration granted in consequence of an executor’s renunciation of the executorship, the executor cannot retract his refusal during the lifetime of the administrator, but he may do so after the grant has ceased by the administrator’s death ; they said, it would be found, that the proposition was not sustained by any authority ; on the contrary, the authorities were the other way. Then, if the appellant had no preferable claim to the administration by reason of the testator’s nomination of her to the office of executrix, which she had renounced, she had certainly no preferable claim to administration as the widow of the testator, or rather, no claim to it at all on that ground, because she had no manner of interest in the estate undisposed of by the testator’s will, and as to which he was intestate. The will made a provision for her (and apparently a most ample one) in real and personal property ; she never renounced the provision made for her by the will; and, therefore, she could never claim any thing from the testator’s personal estate besides that which his will gave her. The statute 1 Rev. Code, ch. 104, § 26, p. 381, provides, that a widow dissatisfied with the provision made for her by her husband’s will, may renounce such provision within the year after his death,— but that every widow, not making such renunciation, “shall have no more of her husband’s slaves and personal estate than is given her by his wili.” The appellant, then, had no interest in the estate to be administered; and the appellee was entitled to a distributive share of it. Therefore, she had no claim to the administration, and the appellee had a claim to it as a distributee. Cutchin v. Wilkinson, 1 Call 1 ; Hendren v. Colgin, 4 Munf. 237; Bray v. Dudgeon, 6 Munf. Í32.
    
      
      Executors and Administrators — Right to Appointment-Persons Preferred. — On this question the principal case is cited in foot-note to Cutchin v. Wilkinson, 1 Call 1; Bridgeman v. Bridgeman, 30 W. Va. 218, 3 S. E. Rep. 584. See monographic note on “Executors and Administrators’’ appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Wills — Provision for Wife — Failure to Renounce— Right to Residuum. — In Dupree v. Cary, 6 Leigh 37, it is held that, where a provision is made for the wife by the will of her husband, which she does not renounce, she has no right to any more of her husband’s estate than that which was bequeathed to her by the will. The statute 1 Rev. Code. ch. 104, § 26, p. 381, Is express; so are all the cases on this point, the last of which is Thornton v. Winston, 4 Leigh 152. See monographic note on "Wills.”
    
    
      
      Gordon’s edi. Philadelphia 1824.
    
   CARR, J.

The first point made for the appellant, was, that her assent to her daughter’s -taking administration being *in pais, was not such a renunciation of the executorship, as bound her. But it has been expressly decided by this court, in Geddy v. Butler, Nelson v. Carrington, and Burnley v. Duke, that such renunciation may be effectually made by declarations in pais, or may be presumed from circumstances.

It was next insisted, that this renunciation, though it might for the time authorize the graht of administration to the daughter, was no peremptory renunciation, hut that on the death of her daughter, the widow still had a right to qualify as executrix. The passage cited from Toller’s Raw of ex’ors, 42, certainly supports the proposition; but that passage itself is not only wholly unsupported, but seems directly in opposition to the books there referred to. Toller says, “After refusal by the executor and administration granted, the party is incapable of assuming the executorship during the lifetime of such administrator, but after the death of the administrator, he may retract his renunciation and Wentw. Off. Ex’or, Swinburne, and 3 Bac. Abr. are cited in the margin. Now, in Wentw. Off. Ex’or, 38, I fipd this passage — “After refusal, and administration committed, the executor cannot go back, to prove the will, and assume the execu-torship” — almost the words used by Toller in the first part of the sentence, but unqualified by his assertion that the executor may retract after the death of the administrator. And (p. 41,) Wentworth gives the reason why there can be no such power of retraction : “It is clear, he says, that if there be but one executor, and he refuse, or being many, if they do all refuse, then is the party dead intestate, and administration is to be committed with the will annexed. Nor can any after meddle as executors.” Certainly, the party could never be said to be dead intestate, if there were a person living who might, under any circumstances, still claim to qualify as executor. So, in Swinburne, part 6, § 12, it is said — “But after refusal, and administration committed to another, the executor cannot recede from it, and go back to prove the will, and assume the exec-utorship. ” *And in 3 Bac. Abr. 42, it is said, still more strongly — “If an executor refuse before the ordinary, to take upon him the executorship, the ordinary may grant administration cum testamento annexo to another person, and he can never afterwards be permitted to prove the will.” In Rolle’s Abr. 907, it is said, “if all the exec utors refuse to administer, administration shall be granted, for then the testator is dead intestate;” and he cites several of the year books. In Graysbrook v. Fox, Plowd. 281, it is said, “where a man makes his executors, who refuse, the ordinary may commit administration to others, because, upon the matter he died intestate.” And in Hensloe’s case, 9 Co. 40, the court lay it down, that “the reason why the ordinary may, upon .the refusal of all the executors, or their death intestate, grant administration, is, because now the testator dies intestate, and then the statute 31 Ed. 3, gives him power to grant it, which he cannot do, when one refuses, and the other proves.” Upon all these authorities as well as the clear reason of the case, I am well satisfied, that the passage in Toller is erroneous, and that when an executor has once renounced,' and administration has been committed, he can never retract his renunciation.

It was contended, in the last place, that the wife has the best right to administration under our statute; and this, though it be clear (as in the case before us it is) that she has no interest in the residuum ; nothing to do with the personalty beyond the provision made for her by the will. But this is a question concluded, as I conceive, by our own decisions, and these decisions founded on the law and reason of the case. In Cutchin v. Wilkinson, Hendren v. Colgin, and Bray v. Dudgeon (cited at the bar), this court has decided, that the’person entitled to the estate, is entitled to the administration, and, in the last case, this was so adjudged against a husband seeking administration on his wife’s estate, — a case in point. I am of opinion, on the whole, that the sentence must be affirmed.

*CABERR, J. I am also of opinion, that the sentence should be affirmed.

TUCKER, P.

The attempt to sustain the claim of the appellant, in this case, to the administration of the estate of her husband, rests upon three grounds — 1. that she was the executrix named in the will, and has never refused the executorship ; 2. that if her verbal declaration could be considered a refusal, she had aright to retract it after the death of the first administratrix; and 3. that if that be not so, she had as widow the preferable right to the administration.

As to the first proposition, it rests upon the assumption that a verbal declaration in pais does not amount to a refusal, but that a valid renunciation can only be by act done before.the court of probat. Whatever may have been the former doctrines of the ecclesiastical courts, it seems to have been admitted in the case of Broker v. Charter, Cro. Eliz. 92, that a letter written by the executors declaring their inability to attend to the duties of executor, was held a valid renunciation ; and upon that occasion, Dr. Ford declared before the justices, that by the civil law, a renouncing may be by a matter in fact as well as by judicial act, and that a refusal might even be by parol. This case seems to have been not only unquestioned, but it is also set forth by the various elementary writers as containing the law of the subject. In our courts too, it has been repeatedly adjudged, that the renunciation of an executorship may be by act in pais ; and, in like manner, our statute makes the refusal or failure of all the executors to give security, equivalent to a refusal of the exec-utorship. In the present case, it appears that when Frances Thornton, the first person who administered on the estate, was appointed, Mrs. Thornton declared her agreement that Frances should qualify, but at the same time reserved her right to qualify after her death. Now this agreement by an executor, that another shall qualify as administrator, amounts of course to a refusal of the executorship ; because the executor thereby consents, that his ^testator shall be considered as having died technically intestate, that is without executor. It is a consent that the interest in the estate, which the testator had cast upon him, should be withdrawn from him and cast upon another, and of course inevitably implies a renunciation of that interest himself. Here, it is true, the widow reserved her right to qualify after Frances Thornton’s death: and this leads to the

2nd Inquiry ; whether she had a right to retract her renunciation after Frances Thornton’s death? Tins rests upon a mere question of law : for the reservation of her subsequent right to qualify, can only have effect if it should appear she had such subsequent right. The passages which have been cited from Toller’s treatise, go fully to the point, that if an executor renounces, and an administrator is appointed, though the executor cannot retract in his lifetime, he may after his death, however formally the renunciation may have been made. Upon examination, however, this particular proposition seems wholly unfounded in authority. The editor of the new edition of the Office of Uxecutors, seems to have considered it as sustained by Bacon’s abridgement and by Swinburne, part 6, § 12, but in neither of those is there the slightest intimation of any such opinion. The case of Broker v. Charter moreover contains the declaration of Dr. Ford, very explicitly, that the renunciation of the executor cannot be partial, or only for a time, but is absolute and perpetual; and though the case itself is not in point here, since in that case the administrator was yet living when the act occurred retracting the renunciation, yet this declaration of a doctor of the civil law (who was, I presume, of the prerogative court) cannot be of less authority than the unsupported dictum of Toller. The proposition, indeed, seems at variance with fundamental principles. By the common law, he who made a will without naming an executor, was technically considered as dying intestate ; and if an executor was appointed, and he refused, the testator was then considered intestate. By the common law, also, the appointment of an executor gave him a right to the residuum *after the payment of debts and legacies, unless that right was expressly or impliedly excluded by the will. On the other hand, where the decedent died intestate, the ordinary, in early times, took the one-third of the estate in pios usus ; and then, when administrators came to be appointed, they were at first deemed to he entitled to the residuum after payment of debts; and, afterwards, were compelled to make distribution. Hence it is obvious, that the residuum went, in right of property, to the executor, if he qualified ; but if he did not, it went to the administrator in his own right, or as fiduciary. The effect, then, of a renunciation by the executor, was to part with this right of property; to consent that his testator should be deemed to have died intestate as to it, and to agree that it should pass into the hands of such person as the ordinary should make administrator, for the benefit of those by law entitled. This is of the nature of a transfer of a right or title in personal property ; and hence it may be truly said, in the language of Dr. Ford, that, after the renunciation, the executor shall never retract, quia transit in con-tractum. The right of property has passed, and cannot be arbitrarily reclaimed: the testator has been admitted to be intestate, and the rights which thereby vested cannot be revoked and annulled by again considering him testate. The affairs of estates would be eternally unsettled, if such irregularities were permitted ; and though it is true the executor is not now entitled to the residuum, and that the principles out of which the rule has grown, have been in part repudiated by our law, yet the practice to which they gave rise must still be adhered to. I am, therefore, of opinion, that after a refusal by an executor, and the appointment of an administrator, there'is no right on the part of an executor to retract his refusal upon the death of the administrator.

Then, 3rdly, upon the death of Frances Thornton, when it became necessary to appoint an administrator de bonis non, had Mrs. Thornton a preferable right to the appointment ? Admitting, that, in the appointment of an administrator *de bonis non, the same preferences are to he observed as in the original grant of administration, and admitting that Mrs. Thornton’s permission to Frances Thornton to administer, was no waiver of her preferable right, still that right would or would not exist, according as she had or had not an interest in the testator’s estate. For, notwithstanding the strong language of the statute, it cannot at this day be contested, that the right of administration mainly follows the title to the personal estate. This has been repeatedly decided in Virginia; and it is the settled law of Plug-land, Toll, 116. So far, indeed, is the doctrine carried, which gives the administration to the person entitled to the property, that although the statute directs the husband or wife to be preferred, yet their claims will yield when the estate is to go to other persons ; as, where by settlement upon the death of the feme, her property is to pass to her representatives to the exclusion of her husband, her relations shall have the administration in preference to the husband or his representatives ; Toll. 85, 116 ; Bray v. Dudgeon, 6 Munf. 132. Now, in this case, I take it the widow is entitled to no portion of the residuum. She has had an ample provision made for her by her husband’s will; and if not, yet she has not renounced the will: and the law emphatically declares, as to the personalty, that if she does not declare her refusal of the provision made for her by the will, within a limited time, she shall have no more of her husband’s slaves and personal estate than is given her by his will. It is not correct to suppose, that such provision must be declared, or averred to be, in lieu of her distributable share : there is no such language in this statute. In the statute concerning dower, indeed, it is made necessary to bar dower, that the estate conveyed must be, expressly or by averment, in lieu of the dower„of the wife; but that provision is confined to the real estate, and to that alone do all the cases refer, in which it has been held, that a wife may take the provision made for her by her husband’s will, and her dower also.

Sentence affirmed.  