
    
      The State ex relatione, Mrs. Anne C. Simmons vs. John Watson, Ordinary.
    
    1. A testatrix, by her will, committed the guardianship of her children to their uncle and aunt, with a request that in the event of her removal, her daughters should live with their aunt, and be under her particular guidance and direction. The charge and direction of her sons she left more particularly to the uncle, directing that the oldest should go to school for a limited time, and then embark in such business as he might select, with the concurrence of his uncle; the youngest being left to the discretion of the uncle and aunt. It is then directed that the sons should have a good education, and as much as should be a necessary outfit for pursuing the profession or business which they might select, and the balance to be divided among the daughters ; and the testatrix declared that she wished “this to be carried into effect according to the judgment of her brother-in-law,” the uncle of the children.
    2. It was held that the provisions of this will did not cast upon the brother-in-law of testatrix, either the charge and office, or the rights of an executor.
    3. It may well be doubted, whether, under the Act of 1839, (4 sec. p. 40,) the whole doctrine of an executor, according to the tenor, is not thereby exploded.
    4. The will of testatrix being proved, the Ordinary ordered that administration cum testamento annexo, should be granted to the sister of testatrix, her next of kin, upon her giving bond, with two good securities, residing in the district in which the will was proved. A mandamus being applied for to correct the qualification of the residence of the securities, and to compel the grant of administration without any such condition, the Ordinary answered, admitting the order, but stated that subsequently becoming satisfied that the brother-in-law of testatrix, named in her will, was executor according to its tenor, had revoked the grant of administration and committed to him letters testamentary.
    5. There being no executor, held that the order granting administration was improperly revoked, and that mandamus would lie, and was the proper legal remedy to compel the Ordinary to grant the administration to the next of kin.
    6. Also, that the act of 1839, (sec. 13, p. 42,) providing for an appeal from “any judgment, &.c.” of the Court of Ordinary did not affect the remedy by mandamus in this case.
    7. A doubtful right of appeal does not destroy a plain common law right.
    
      8. Where there is no other appropriate legal remedy for the enforcement of a legal right, mandamus is the proper remedy. Yide Slate vs. Bruce el al. 3 Brev. 270.
    The Ordinary is to take good security for administration, hut has no right to make residence a part of the qualification of the securities.
    
      Before O’Neall, J. at Greenville, Spring Term, 1843.
    This was an application for a writ of mandamus, under the following circumstances. The Ordinary of Greenville district, before whom the will of Mrs. Caroline Mayrant had been admitted to probate, passed an order, directing administration cum testamento annexo to be granted to Mrs. Simmons, the relatrix, and next of kin to the deceased, upon her giving bond in the sum of $60,000, with two good securities, residing in the district of Greenville. This proceeding was instituted to compel the grant without the condition as to the residence of the securities. The Ordinary admitted the order, but stated that he had subsequently become satisfied that Mr. Mayrant was the executor of the will of testatrix according to its tenor; that he had, therefore committed letters testamentary to Mr. May-rant, and revoked the grant of administration to Mrs. Simmons. The questions which arose were, whether Mr. May-rant was executor, and if not, whether mandamus would lie in behalf of the relatrix to obtain the administration.
    The following is the decision of his Honor on the circuit:
    “The first point necessary to be considered in this case is, whether Mrs. Caroline Mayrant appointed any executor in her last will and testament'? I have considered this as well as my opportunity would allow.
    It is contended from the words, “it appears to me that the opinion of the father was, that his sons should have a good education out of his property, and as much as was a necessary outfit for pursuing the profession or business, and the remainder to be divided between my daughters; and it is my desire this should be carried into effect according to the judgment of my brother-in-law, Samuel Mayrant,” that Samuel Mayrant became, constructively, the executor of the will. The rule stated in 1st Williams, on executors, 123, that “if by any word or circumlocution, the te,stator recommend, or commit to one, or more, the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be executors,” is, I have no doubt, correct, and must apply to, and govern this case. The question then will be, has the testatrix committed to Mr. Mayrant the charge or office of an executor, or given to him any of his rights ? I think not; for at most, he is only referred to as the person whose judgment should be consulted, in educating her sons, and in designating the amount of the outfit for them. This makes him an adviser, rather than an executor; and if effect even can be given to this clause of the will, it will be by making his discretion, when ascertained, a standard by which the will is to be executed, rather than a power in him to execute it.
    The next point is, whether á writ of mandamus will lie?
    The writ of mandamus “iss'iies to the Judges of any Inferior Court, commanding them to do justice according to the powers of their office, whenever the same is delayed.” “A mandamus is proper when a party has a legal right, and there is no other appropriate legal remedy, and where, in justice, there ought to be one.”
    These two principles present all the law on this subject necessary to be now noticed.
    The Ordinary is an Inferior Judge, exercising, in some respects, judicial, and in others mere ministerial powers. The granting administration is, in most instances, a mere ministerial power; and the Ordinary has no discretion, as to whom he shall grant it, when applied for by the nearest of kin. If the plaintiff be entitled to administration, then withholding it from her is the delay of justice, and the Ordinary may be compelled by mandamus to execute his powers, and to issue his letters of administration. That Mrs. Simmons has the right of administration, is not denied, if there be no executor. This makes a law question, which, when decided by the Ordinary, is not the exercise of his discretion, but of his legal judgment; and if it be wrong, the party against whom it operates, has the legal right to administer, and if she has no other appropriate legal remedy, may have a mandamus. If Mrs. Simmons had been a party to the proceeding by which Mayrant claimed, and the Ordinary allowed him to be executor, then her remedy would have been by appeal. But not being such party, her only remedy is by mandamus. The Ordinary had the right to fix the amount of the administration bond, and to require good security, but he had no right to say that the securities should reside in Greenville.
    The writ of mandamus, commanding the Ordinary to grant letters of administration, cum testamento annexo, to Mrs. Simmons, upon her entering into bond, in the sum of $60,000, with good and sufficient security, to be taken by and approved of by the Ordinary, is ordered to issue.”
    The defendant moved the Court of Appeals to reverse the order directing a mandamus to issue, on the following grounds:
    1. That a writ of mandamus will not lie against a judicial officer, requiring him to reverse a decision which he has made as a Judge, granting letters testamentary to an executor, and refusing letters of administration with the will annexed, to a party claiming the administration.
    2. That in the will of Mrs. Caroline Mayrant, there is a constructive appointment of Samuel Mayrant, Esq. as executor of the will, and that, therefore, letters testamentary were properly granted to him by the Ordinary, and letters of administration, with the will annexed, refused to Mrs. Anne C. Simmons.
    
      B. F. Perry, for the defendant,
    contended that a writ of mandamus will not lie against a judicial officer, requiring him to reverse a decision which he has made as a Judge. In the construction of a will, the Ordinary acts as a Judge, and not as a ministerial officer. If an executor has been appointed in the will, the Ordinary can not exercise his ministerial duties by the appointment of an administrator. The Ordinary has decided, as the Judge of the Court of Probates, that there is a constructive appointment of executor in the will of Mrs. Mayrant. He is now called upon to reverse that decision by writ of mandamus.
    
    A mandamus will not lie to compel a Judge to decide according to the dictates of any judgment but his own. 1 Cond. U. S. Rep. 20; 8 Peters, 304; 13 Id. 279, 401; 20Wendall, 658; 18 Id. 79 ; 7 Cowen, 363.
    
      Mandamus will not lie to managers of elections, because they acted judicially. 1 Tread. Con. Rep. 165; 2 Id. 642; nor to the Commissioners of the Poor, whenever they have a discretion. 2 McCord, 170 ; nor where tjhere is a plain and specific remedy in any other mode. 2 Chitty’s Black. 204; Bacon’s Abr. Title, Mandamus.
    
    In the present case there was a specific legal remedy by appeal from the Ordinary’s decision.' (Acts of 1839, p. 42.) Mrs. Simmons had notice that letters would be granted to Samuel Mayrant.
    The proper mode of proceeding when the Ordinary refuses letters of administration is by appeal. 2 Tread. Con. Rep. 703; jBrown vs. Me Chiire, 1 Bailey’s Rep. 350.
    The will gives S. Mayrant the guardianship of the children, the charge and direction of the sons, the selection of their professions, and the education of the sons out of the property. He is to pay them an outfit for pursuing their business, and divide the remainder between the daughters, 6pc. No executor is expressly appointed.
    As to the appointment of executors by construction, see Choke’s Eliz. 43; 1 Haggard, 80; 3 Phillimore, 116, 424; Grimke’s Ex’ors. 93 ; Swinburne, 247; Toller, 35; 1 Com. Dig. 448 ; 3 Bacon, 450.
    Samuel Mayrant had had for many years the management of this property. Did not the testatrix intend that he should continue in the management of it ? How, otherwise, could he educate the children, give them an outfit and divide the remainder between the daughters ?
    The management of ara estate is no easy matter for any one, and much less so for a lady. This was known to the testatrix, and prevented her giving the management of her property to her sister, Mrs. Simmons.
    
      H. C. Young, contra.
    
      Copy of Mrs. Mayranfs Will.
    
    It is my wish that my children should be under the guardianship of my' brother-in-law, Samuel Mayrant, and my sister, Mrs. Simmons; and I request my sister (should I be removed) to take my daughters to live with her, to be under her particular guidance and direction, as she has kindly offered. I leave more particularly to Mr. S. Mayrant, the charge and direction of my sons; and I think that the oldest should, for two or three years, go to a good school, to prepare him for some useful and respectable course of life, which he must select, with the concurrence of his uncle. I earnestly hope and advise, when selected, he will adhere to it. With respect to the younger, he is still such a child that what is best for him can only be judged when his character is more developed, and leave to his uncle and aunt to do by him what they deem best. It appears to me that the opinion of the father was, that his sons should have a good education out of the property, and as much as was a necessary outfit for pursuing their profession or business, and the remainder to be divided between my daughters ; and it is my desire this should be carried into effect, according to the judgment of my brother-in-law, Mr. Samuel Mayrant.
    I sign this now, to be formally executed as my will at a more convenient time, after Mr. S. Mayrant’s arrival here.
    (Signed) CAROLINE MAYRANT.
    Anderson District, (S. C.) July 22, 1842.
    
      Witness, Maria S. E. Bee,
    F. M. Adams,
    Frs. K. Huger.
   Curia, per

O’Neall, J.

My decision, which is copied in the brief, was written on the back oí the suggestion, and does not pretend to set out the facts. It referred to what appeared in the suggestion, and the answer of the Ordinary. It is hence necessary, that I should state the facts upon which our judgment turns.

Soon after the death of Mrs. Mayrant, her will was proved, and the Ordinary ordered that administration cum testamento annexo should be granted to Mrs. Simmons, the sister of the deceased, and her next of kin, on her giving bond in the sum of $60,000, with two good securities, residing in Greenville district. The mandamus was applied for to correct the qualification of the residence of the securities, and to compel the grant of administration without any such condition. The Ordinary answered, admitting the order which he had made, but stated that he had become subsequently satisfied that Samuel Mayrant was executor according to the tenor of Mrs. Mayrant’s will, and that he had, therefore, committed to him letters testamentary, and revoked the grant of administration to Mrs. Simmons. Under this state of the facts, it is necessary to enquire, 1st. whether Samuel Mayrant is executor 1 and, then, 2d. if he be not, whether mandamus will lie 1

1st. I have considered this question, here with more care, than I had the opportunity of doing on the circuit, and the result is a most deliberate conviction of the correctness of the decision below. To constitute one an executor, according to the tenor, it is necessary that he should have “the charge and office, or the right of an executor.” In Swinburne, on Wills, 350. 1st Williams on Executors, 123, instances are given of an executor, according to the tenor. All of them arise from making the person the residuary legatee. (That was necessarily the case, from the fact that in England the executor, by virtue of his office, took the residue. But there is great room to doubt, whether the same result would follow here, when the executor has no such rights. In Swinburne, 358, it is advised that if the words be indifferent to make an executor or universal legatary, it is best to take the latter, and let administration be granted. It is, however, better to test this case by the principle extracted from Williams, and which I have already laid down, 1st. Does the will commit io Samuel Mayrant the charge and office of an executor 1 To me, it is plain, it does not. It was intended that he and Mrs. Simmons should be testamentary guardians, and to Mr. Mayrant was intended to be committed more especially the charge of the sons ; the oldest, it was directed should go to school for a limited time, and then to embark in such business as he might select, with the concurrence of his uncle, S. Mayrant; the youngest was left to the discretion of his uncle and aunt, S. Mayrant and Mrs, Simmons. So far, there is nothing like the charge or office of an executor, it (the will) directs, in these provisions, how the supposed guardians should act. Then the will directs that the sons should have a good education, and as much as was a necessary outfit for pursuing their profession, or business, which they might select, and the balance to be divided among the daughters ; and the testatrix declared that she wished “this to be carried into effect, according to the judgment of her brother-in-law, Samuel Mayrant.” Do these last provisions give him the charge or office of an executor ? Certainly not. He is to say how much will be a suitable outfit for the boys, after their education has been completed, and the balance is to be divided between the daughters. He is not to divide the property. It is merely, that this, as well as the outfit should be arranged according to his judgment. That is, he should advise how the property could be best divided. I look upon Mr. May-rant, as the mere adviser in the ultimate administration of the estate.

2d. Does the will cast upon him the rights of executor 7 There is nothing which shews that he was to have the control of the property. He is not directed to sell or divide it. He is not directed to pay debts. Indeed, there is nothing in the will, which, in the remotest degree can be considered as placing him in the stead of the executrix, and conferring upon him her rights. To be an executor, his authority must arise from the will, and unless there be a clear intent to constitute the person claiming to be so regarded the executor, he never ought to be declared to be so, according to the tenor. I confess, on referring to the 4th sec. of the Act of 1839, page 40, it may well be doubted, whether this whole doctrine of an executor, according to the tenor, is not thereby exploded. It provides that, “when a deceased has left a will, in writing, without appointing an executor or executors, therein,” it shall be the duty of the Ordinary to grant letters of administration, with the will annexed. How, after this provision, the Ordinary can hunt up, through a will, a constructive executorship, is difficult to conceive. It would seem to be enough to read the will, and if no executor is appointed, to grant administration. This would be a plain, practical rule for the guidance of Ordinaries, who are generally very little qualified to say whether there is an executor according to the tenor.

3d. The next general question is, whether mandamus will lie ? There being no executor, it follows, that the order granting administration to Mrs. Simmons, was improperly revoked, and that she is entitled now to it, and it may be, that the condition that her securities should live in Greenville district is illegal, and should be struck out. How is she to compel the Ordinary to grant her the administration'? There is no doubt, that in England mandamus would be the remedy. In the King against Dr. Hay, 2d Wm. Black, 640, the court ordered a mandamus to the Judge of the Prerogative Court, to grant administration to the next of kin, notwithstanding there was a suit pending. So soon as the title to administration is clear of difficulty, then there is generally, according to the principles of the common law, a plain right to have a mandamus, to compel the Inferior Court, (if it refuses to act) to grant it. When there is no other appropriate legal remedy for the enforcement of a legal right, mandamus is the proper remedy. State vs. Bruce et at. 3d Brev. Rep. 270. It must be an appropriate, as well as a legal remedy, to oust the remedy by mandamus. In this State, it is said the parly, whose right of administration is denied by the Ordinary, or delayed by improper conditions, may appeal. The Act of 1839, sec. 13, provides, if any person shall think himself aggrieved by “any judgment, sentence, decree, denial or order of the Court of Ordinary, it shall and may be lawful for such person to appeal, by filing within twenty days his ground of appeal, and serving the opposite party or attorney with a copy thereof.” In another part of the same clause, the party appealing is directed to file in the Clerk’s office a suggestion, setting out “the judgment, sentence, decree, denial, or order,” and his grounds of appeal, and thereupon to post the usual thirty day rule to plead, and an issue in law, or in fact, is there directed to be made up, according to the nature of the case. These provisions plainly point to a case between party and party, in which there may be an appeal. It does not apply to a question of right, in which one party is alone concerned, as Mrs. Simmons is. But, I apprehend, a doubtful right of appeal, does not destroy a plain common law right. For the right to compel the Ordinary to grant administration to the next of kin, by mandamus, is essential to the preservation of estates. It cannot be, that an estate is to be unrepresented, while an appeal is to be carried up to the next Circuit Court, and decided. The mandamus, without any such delay, can be obtained from any of the Judges at Chambers, and the administrator admitted to his rights. I think, therefore, Mrs. Simmons had no other appropriate legal remedy, and hence, that she is entitled to have the writ of mandamus. It has not been denied, that, that part of the Ordinary’s order, committing administration to Mrs. Simmons, which requires the securities to live in Greenville district, is illegal. The Ordinary is to take good security for administration; but he has no right to make residence a part of the qualification of the securities.

The motion to reverse the decision below, is dismissed.

Evans, J. concurred.

Wardlaw, J.

I agree that the will contains no sufficient appointment for executor, and that the mode of appeal is by the Act of 1839, left too doubtful and difficult to take away the remedy by mandamus. Therefore, I concur in the result.

Butler, J.

dissenting. I feel bound, in this case, to record my dissent from the judgment of a majority of my brethren, upon both of the questions involved in the grounds of appeal.

1st. I think Samuel Mayrant was entitled to be invested with the authority of executor, under the will of Mrs. Caroline Mayrant. His agency is indispensably necessary to carry that will into effect. Although he is not, in express terms, appointed executor, yet he is required to exercise powers that will, in their direct consequences, execute the will of the testatrix.

“An executor is the person to whom the execution of a last will and testament of personal property is, by the testator’s appointment confided.” 2 Black. Com. 503. Although no executor be expressly nominated in the wall, by the word executor, yet, if by any word, or circumlocution, the testator recommend, or commit to one or more, the charge and office, or the rights which pertain to an executor, it amounts to as much as the ordaining and constituting him or them to be executors, 1 Wms. on Ex’ors. 123, The purport of Mrs. Caroline Mayrant’s will, when analyzed according to its just construction,, is as follows: With maternal solicitude, in the first place, she provides guardians for her children. The care and direction of her older son, she particularly commits to her brother-in-law, Samuel Mayrant, whilst it is her desire, that her sister should have the guidance and care of her daughters, both, however, to co-operate in a general superintendance. With regard to the youngest child, she leaves his education to be directed by his uncle and aunt, according to the subsequent developments of his character. This purpose being expressed, the testatrix, in the last part of her will, provides, in effect, for the disposition of her estate, with a view, both of gratifying her own wishes, and of effecting the probable designs of her husband in relation to their children. She gives to her sons, money enough to acquire an education and profession or calling, with a decent outfit. After these expenditures, it is provided that the remainder of her estate should be divided between her daughters. And how is this disposition of her estate to be carried into effect'? Why, as she expresses it in the last line of her will, “according to the judgment of her brother-in-law, Samuel Mayrant.” From this, it would seem evident, that the money for the education of the children, must go through the hands, and be expended, by the direction of Samuel Mayrant, and it is equally clear, that the remainder cannot be divided in any other way than as Samuel Mayrant may direct. His will and judgment constitute the law, under the will, for the disposition and distribution of the estate. With these explanatory, but full powers, necessarily implied, can it be supposed that the testatrix had in contemplation any other agency, such as would be required in the functions of a distinct administrator, to carry into effect the provisions of her will % What discretion or power would such an agent have1? No more than those of an automaton, moving under the volition and judgment of Samuel Mayrant. The estate is to be expended and divided by him, and only by him; what necessity then, can there be, for calling in the inoperative interference of another 1 I can neither perceive or imagine a reason for it. I think this view is illustrated by the cases quoted in WTilliaras on Executors; as where the testator says, I commit all my goods to the administration of A. B.; or to the disposition of A. B. In such cases, A. B. would be appointed executor. 1 Wms. Ex'rs. 123.

The second question is still free'rfrom difficulty. There was no necessity, or legal propriety, in resorting to the writ of mandamus, to compel the Ordinary to do his duty, in reference to the rights of Mrs. Simmons. She had a statutory remedy fully provided by the Act of 1839. The writ of mandamus is a high prerogative writ, issuing in this State, from a Superior Court of Law, directed to officers of an inferior jurisdiction, requiring them to do some particular act, therein specified, which pertains to their office and duty. In general, it is to require such officers to do some ministerial act, which they have omitted, and which, by law, they are required to perform. It ought to be used on all occasions where the law has established no specific remedy, and where, injustice and good government, there ought to be one. 4 Bac. Ab, (Mandamus.) But it appears from the same book that where the party applying for such a writ, has a specific and subsisting legal remedy, for a legal right, it will be denied. The remedy in the case of the present relatrix, is provided in the following clause of the Act of 1839, page 42, sec. 13. “If any person or persons shall think themselves aggrieved, by any judgment, sentence, decree, determination, denial or order, of any of the Courts of Ordinary aforesaid, it shall and may be lawful for such person to appeal therefrom to the Court of Common Pleas or Equity, by filing within twenty days thereafter, his or her grounds of appeal therefrom, and serving the opposite party or attorney, with a copy thereof.”

If Mrs. Simmons was entitled to the administration, and the Ordinary had refused to grant her letters, or if he had granted them with an order that her securities should reside in Greenville, what was then to prevent her from taking an appeal from either, as an entire denial of her rights, or an order made in derogation of them. I can perceive no reason whatever; on the contrary, her mode of redress is specifically provided by the ample provisions of the above clause. She had a right to appeal to the Court of Common Pleas, to have such denial or order reversed, with instructions to the Ordinary, as to his duties. On the Ordinary’s refusing to comply and carry into effect such instructions of the Court, growing out of the appeal, a mandamus might issue, or some other process to compel the subordinate tribunal to do its duty. It is said, however, that an appeal is only contemplated, and provided for, in cases where there is another party on whom notice of appeal may be served. According to this view, there can be no appeal from the Ordinary, in ex-parte cases. The very word “denial,” seems to imply that there may be an ex-parte application to the Ordinary, and that upon his refusal or denial of which, an appeal will lie. It was necessary and proper that the Act should have provided for all cases, and hence, the provision that where there is an opposite party, notice should be served on him. But where there is no party occupying an adversary position, of course there will be no necessity to serve notice. It does not follow that such party, who may have met with a gross denial of his rights, shall be deprived of all right of appeal, because he can find no party to serve a notice on. When there is no opposite party concerned, the party complaining shall file his ground of appeal with the Ordinary, and thereupon, that officer would be required, as provided by the Act, “on filing such notice,” to make out for the party so appealing, a “copy of such judgment, sentence, decree, determination, order, or denial,” and of the evidence taken by him on such proceeding.

I have always understood that it w7as an axiom, that the major included the minor, and, therefore, where a party is allowed an appeal, wffien he is required to serve notice on others w7ho are concerned, I do not see why he may not appeal when no body is concerned but himself. He only has less to do in one instance, than in the other. But it is unnecessary to attempt, by illustration, to make the palpable meaning of the Act, clearer than its own lauguage speaks. Its provisions are made even plenary by cumulative expletives.

Richardson, J. concurred.

Note. . When mandamus lies generally — see The People vs. Corporation of Brooklyn, 1 Wendell, 318; Commonwealth vs. Risseter, 2 Binney, 362; Griffith vs. Cochrane, 5 lb. 87; Commonwealth vs. Judges of Common Pleas, 3 lb. 275.

It seems that mandamus will lie to prove a will, and if there be none, to grant administration. Gray vs. Finch, Comb. 454; Dunkin vs. Mun. T. Raym. 235.

To Inferior Courts, 10 Wend. 285 ; 2 Cowen, 479. Amherst’s case, T. Raym. 214; Burgh vs. Blunt, Mod. Rep. 350.

See further, many cases collected, Am. Com. Law. (Mandamus.)  