
    Alonzo V. Jones vs. Sarah V. Jones.
    
      Administration — Sureties—Administration Bond.
    
    Administration may be granted to one residing beyond the limits of the State.
    The Ordinary may take as sureties to an administration bond, persons residing beyond the limits of the State.
    BEFORE WITHERS, J., AT CHARLESTON, JUNE TERM, 1859.
    John S. Jones, a resident of the State of New York, died intestate, leaving a considerable personal estate, and some real estate, in Charleston, South Carolina. He left a widow and six children. In 1857, administration was granted by the Ordinary of .Charleston District to Sarah V. Jones, the widow of intestate, and she gave bond in the penal sum of thirty-six thousand dollars.
    In April, 1859, the Ordinary required the administratrix to give, an additional bond in the penal sum of forty thousand dollars; “ and that the securities to her said additional bond, be persons inhabitants of this State, or freeholders within the State, and other persons than the securities to her present bond.” In May, 1859, the administratrix tendered her additional bond with five persons as sureties, three of whom were children of the intestate, and two of whom were husbands of two other children of the intestate. They all resided beyond the limits of the State, and, except their interest in the real estate of the intestate, none of them owned real estate in this State. One of the five was a surety on the original bond of the administratrix. The sufficiency of the bond was excepted to, and thereupon the Ordinary made the following decree:
    
      Buist, Ordinary. Pox reasons and purposes therein set forth, the administratrix in this case, the widow of intestate, was, by a previous decree of this Court, ordered to execute an additional administration bond, in a certain penalty, with sufficient personal securities, who were required to be either inhabitants of this State, or freeholders within this State, and, on failure to comply at the expiration of the time limited, a revocation of administration was adjudged then to take effect, with its usual consequences, as to a future grant of administration on the unadministered assets within this State. The said administratrix, within the time limited by the order of this Court, has made and executed an additional-administration bond, with several sureties, which has been tendered to the Court, which, in my opinion, from all the circumstances of the case, and the information presented, is within the terms, intent and meaning of the decree of 14th April, 1859, and which I deem adequate and sufficient in law, under the special facts of the case, to protect and save harmless, the interest of any and all persons who may be interested in this auxiliary administration of assets within this State, and entitles said administratrix to be retained and continue the administratrix of said assets; unless the other subsequent legal positions, which have been made by the applicant for revocation of said administration, .are tenable and definitely adjudicated, either by international or local law, although it may conflict with the past usages and practices of Probate Courts.
    Three grounds have been made by the Proctor for the applicant, on each of which he claims to be entitled to a revocation of the grant of this auxiliary administration, made to the widow of the intestate under a decree of this Court, in 1858. They are as follows:
    1. That by the common law, and, more especially, under the Statutes of 1789 and 1839, no grant of administration on an intestate’s effects can be made to one resident abroad or in another State. *
    2. That the removal from this State of one who originally may have been appointed administrator, to another State, and there acquiring a permanent residence, is, in effect, a repeal of such administration, renders the same a nullity, and entitles proper parties, by reason thereof, to a new and subsequent grant of administration.
    3. That, by the theory and intent of the Common and Statute Law, the Judge of Probates is prohibited from taking any one as surety to an administration bond who may be residing without the limits of the State, whether he be the owner of property, real and personal, within the State; that the Ordinary has no discretion whatever in the premises, and, although the law may not have so expressly declared, and is silent on the subject, it is a self-evident proposition.
    There is great need of amendment of our laws on the subject of administration, and wills and testaments, especially as relates to the Probate Courts. In its present condition, it is an ancient and mixed system, and the manifold changes which, in the progress of time, have occurred, will soon render it indispensable that the whole system should be revised and improved, by enlightened and detailed legislation of the entire subject. I confess, the several positions taken, particularly the third, are not free from embarrassment and difficulty. I have never known the two first heretofore mooted. The usage and practice of the Probate Court of this District, since its organization, as appears on its past records, has sanctioned the grant of administrations, both at common law and under the statutes of this State, mandatory to the Ordinary, of the preferred class to be appointed, and the order of their appointments, as well as the continuance of an administration in the hands of one who, subsequently to the grant, may have removed into another State. If my predecessors have erred in their views of the law, in relation thereto, and their judicial action should now be pronounced inoperative, by the superior courts, without regard to future legislation on the subject, the mischievous consequences which would result would not only render insecure rights of property already vested, but deeply affect various interests and persons, and create much confusion and endless litigation. I am, however, of opinion that both the common law and the statutes, on a proper construction, sanction and authorize the grant of administrations to the preferred class, and the continuance of such a grant in their hands, whether such persons were, at the time of the grant, residents elsewhere, or became non-residents subsequently to the grant; and, although all the remedies of the law may not be as effectual as in the case of a permanent and continuous resident administrator, there are sufficient provisions in the law, and by the aid of the several courts of justice, to protect and secure the rights and interests of parties, on proper proceed- ■ ings instituted and due diligence on the part of those who may make claims on the assets of an estate. It is not questioned that a testator may appoint one, resident abroad, to be. his executor, and by such appointment he may qualify and act as if he were a permanent resident of the State. This is in conformity to international law and the comity of States sanctioned by the common and statute law, and conforms to' the organization of Probate Courts, and the generally admitted and discretionary powers vested in such Courts. There is not an identity, but a very striking analogy between the powers and duties of an executor and administrator, and the relations each of them retain to creditors, legatees and distributees, are very similar in all matters relating to administration of assets in Probate Courts. In so far as relates to administrators and parties interested in intestate’s estate, the provisions of the law are more ample and remedial in the case of administrators than of executors. This view, of itself, would imply and justify,'in absence of any statute or express prohibition, the proper and legal grant of an administration to a non-resident and its continuance, in case of a removal from the. State.
    In all those cases in which the Ordinary is invested with entire discretionary power as to the persons to whom to grant administration, they being none of the preferred class, or the nominees of that class, there are many considerations why he should prefer making the grant to one who may be and will probably continue a resident of the State, rather than to one who may be at the time a non-resident, or expects to become so ; and he would but imperfectly and indiscreetly discharge his official duties to those who may become interested in an administration, if he did not so adjudge as to abridge or lessen any of the securities or remedies of any parties who may be interested in an estate. If, however, there exist sufficient and express law to authorize the grant, or continuance thereof to such persons as the law directs and prefers, on their application he is bound to enforce and conform to law, however inconvenient in its results it may be to creditors and distributees.
    At common law, the grant of administration to a nonresident was sanctioned. (See 1 Williams, on Exors. 267 and 236; 1 Haggard, 237; 1 Haggard, 316; and 2 Adams, 439.) In the several cases referred to, the Ecclesiastical Court granted administrations to foreign residents ; and in the last named case (2 Adams), the Court said it dispensed with the sureties being found in England in the particular case, and although recommending and advising as a general and safe practice, that the securities should be inhabitants of the realm, on the adjudicated right to make grant of administration to a non-resident, it was admitted, in that case, not to be imperative or indispensable, and that, under the special circumstances, the Probate Judge may accept non-residents as sureties, it being within his discretion whether all were non-residents, or a portion of them, the non-resident securities being cumulative and additional to those securities he may have taken residing within the State. The statute law, as applicable to these questions, will now be generally considered. These are the Acts of 1789 and 1839. In-neither of them is anything expressed as to the residence of persons, on granting administrations, relating either to the administrator appointed or his sureties. The intent and purpose of these Acts relate exclusively to persons and to property or assets both as to securities and administrators. There are some ® clauses of these Acts, in reference to certain matters, which expressly declare and provide for the existence of persons absent as administrators, securities, witnesses, executors, and so forth. The ninth, eleventh, and twelfth clauses, contain these terms and provisions, as follows : “ When an administrator shall have removed from the State,” and so forth, or the absence of the securities, or the death of either of them j “ also, when an executor lives at a great distance from the Ordinary’s Court,” and so forth. All such terms and directions indicate the Legislature, by its statutes, contemplated the existence and continuance of persons as non-residents in providing remedies and prescribing instructions for that class . of persons, and not expressly requiring, in any of the clauses of the said Acts, residence to give validity to an administration ; and there is no statute prohibiting the Ordinary in the premises. So far as relates to the Probate Judge taking sufficient security, being a ministerial act for which he is responsible, it would seem to be entirely discretionary with him in all cases, subject to be controlled or overruled in special cases, when negligently or grossly abused by the Ordinary. When it is considered that the laws which prevail and govern in Probate Courts include international statutes and common law, it would be of doubtful expediency to legislate on the subject of residence in all matters, and if done, it should be limited and clearly defined. At present, our statute’ law is silent on the subject, and if any inference or construction can be had from the provisions already referred to, it would be in favor of appointing a foreign or absent person administrator. In the third section of Act of 1839, there is no limit, qualification or instructions as to the persons to be appointed, except as therein expressed; and these refer to persons, or classes of persons, in a certain order, exclusive of residence, and these instructions are mandatory and include all persons who sustain the relation designated, wherever they may reside. The Act thus reads : “The Ordinary shall grant administration in the• order following: first, to the husband or wife of the deceased, and if there be none such, or if they do not apply, then to the child or children, or their legal representatives; in default of them, then to the father or mother; in default of them, to the brothers and sisters; in default of them, to such of the next of kindred of the deceased, at the discretion of the Ordinary, as shall be entitled to a distributive share of the intestate’s estate; and in default of such, to the greatest creditor, or creditors, or such other persons as the 'Court shall appoint.’’ I may also refer to the adjudicated case of McOlaiurin vs. Thompson, Dudley’s Eeports, page 335, as confirming the views and sustaining the principles above expi'essed. Judge O’Neall says, “in case of removal from the State, the citizen (an administrator) forfeits none of his rights; and, hence, his administration cannot be considered as ended. The parties entitled to an account against him are not without remedy, as they may proceed in Equity, and to that bill they may make the surety a party, and obtain a decree against both.” I have thus disposed of the two first grounds, and overrule thé same.
    In respect to the securities, taken in the third ground, I have already shown, in 2d Adams Eeports, that non-resident securities were sanctioned and -allowed in special cases, at common law, although it is deemed generally more advisable to take such as are inhabitants of the State at the time; but non-residents are not excluded or prohibited. In this case, the administratrix executed two separate bonds, and several of the securities on one of 'them are residents of this State. The additional securities include all the distributees interested in the estate, with the exception of one, who is the contestant in this case. All of them own freehold property, within the State, exclusive of personal property, and are interested, and entitled, each of them, to considerable other personal and real property elsewhere. I consider tbe nine several securities to these two bonds, collectively, amply sufficient to respond to any misfeasance or malfeasance of assets within this State, wThich could be perpetrated by said administratrix, affecting the rights of any creditors or distributees. And if the statute laws, of this State do not exclude, as secures, under such a state of facts, persons who may be nonresidents, then the additional available sécurity taken should be approved and commended; at all -events, it will be in conformity to law, and, in case of waste by said administratrix, will prove a protection to all parties interested. From the ninth section of the Act of 1839, it appears, absent securities are mentioned and recognized, and remedies prescribed for such in the Ordinary’s Court. In addition thereto, as in Dudley’s Eeports, there are remedies in Courts of Equity, both against absent administrators and absent sureties. — The twenty-first section of the Act of 1789, in its directions to the Ordinary in taking administration bonds, only declares “ such administrator shall also enter into bond with good security, to be approved by the Court,” and so forth. It is silent as to the residence of the sureties to be taken; and from the character of such an official act, necessarily leaves it to the discretion of the Ordinary, subject in some manner to be controlled and guided by the Superior Courts, in addition to the official liability he may incur. I conclude, therefore, there is no law prohibiting the Probate Judge, at his discretion, in special cases, taking as security a person or persons, nonresidents, either with or without 'other persons, residents of the State. That it is expressly sanctioned by the common law, and so to be inferred from statute law of this State, and adjudications relating thereto; and while overruling this third objection also, it is ‘proper to state that talcing any nonresident as one or more of the sureties on an administration bond, with or without other persons, resident in this State, is a rare exception, and seldom done; but there are special cases like the present, where the estate, real and personal, is in two separate States, and which is said to amount to several hundred thousand dollars, in which I believe it obligatory, and my official duty, on a grant of administration to the widow of the intestate, who is herself entitled to one-third of the entire estate, in addition to the securities taken, who are residents of this State, also to take and accept, as securities, all the other distributees (except one), 'who may be nonresidents ; and I am of opinion, both local and international law afford ample remedy against all the securities to the two present bonds, to protect their interest in the premises.
    I do, therefore, accept the additional administration bond, tendered by said administratrix, in compliance with the decree of the 14th April, 1859 ; and order the same to be filed and recorded. And it is further ordered that said administratrix continue administratrix of the estate of said intestate, John S. Jones, deceased, as originally granted to her on the second day of January, 1858, with all the powers, rights and authority appertaining thereto.
    The relator appealed on the grounds:
    1. Because administration cannot be committed to one resident out of the State of South Carolina.
    2. Because the sureties to the administration bond should be residents within the State of South Carolina.
    
      3. Because the Ordinary, in the decree of the 14th day of April, 1859, in this case, had expressly decreed that the new sureties should be other persons than the sureties to her (Mrs. S. V. Jones) present bond, and so that matter was res judicata; yet he accepted Charles L. Jones, a former surety, and a non-resident.
    4. Because the Ordinary put the reversal of his adjudication on this head, of the 14th of April, 1859, on the ground that the said decree, provided that “ any of the parties interested in this case be at liberty to apply for any amendment or modification, or any additional order in the premises and it is submitted that no such application was made by any’ of the parties at any time.
    5. Because Nathaniel B. Hoxie and Thomas Weatherly had no freehold interest in South Carolina, taking for granted the right of the Ordinary to accept a non-resident surety; so that the bond is insufficient security.
    6. Because, excluding Charles L. Jones, Nathaniel B. Hoxie, and Thomas Weatherly, there would not be any sufficient security to the said administration bond.
    His Honor gave judgment, pro forma, that the appeal be dismissed.
    An appeal was taken on the same grounds to the Court of Appeals.
    Simons, for appellant.
    
      Simonton, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

The wife of the deceased is by law entitied to administration. The Ordinary has no discretion about granting it, unless there be some legal disqualification. Residence has no such effect. It is his duty to see that good and sufficient sureties be given. In Grimke’s Law of Executors, page 193, sect. 16, it is said, “Letters of administration are not of necessity to be granted within the limits of the jurisdiction : the granting thereof being not a judicial, but a ministerial (and therefore not a local) act, wherein the bishop acts, as a person designed and appointed by law.”

The uniform practice is to grant administration to persons living out of the State, if sufficient security be given. This would be enough in a case like the present to make the Court hold its hand, and not intrench upon a course of practice in another forum.

But the practice, in the Ordinary’s Court, has the sanction of the Court of Appeals in Thompson vs. Hucket. There the widow of the deceased, who was living abroad, nominated Hucket as administrator, and though administration had been previously committed to Thompson, the Ordinary, without other cause, revoked his administration, and granted administration to Hucket; 2 Hill, 347. This, beyond all doubt, recognized the widow’s right to administration, notwithstanding she did not live within the State.

I concur fully in the Ordinary’s judgment. The motion to reverse the decision on the appeal is dismissed.

Johnstone and Wakdlaw, JJ., concurred.

Motion dismissed.  