
    Edmundson, Appellant, v. Roberts.
    A motion to revoke letters of administration on the ground that the administrator is not next of kin, can be made only at the instance of the next of kin.
    The husband of an executrix may exercise all the powers of an executor, in consequence of the appointment of his wife, without any qualification on his part. But the right does not survive the wife.
    THIS was an appeal from a decision of the court of probate of the county of Monroe. A motion was made in that court to revoke letters of administration de bonis non granted to Roberts, on the estate of William Martin, on the grounds that Roberts was not next of kin; and that at the time of granting the letters, Edmundson was surviving executor; having married the widow of Martin, and qualified under the will. The motion was overruled by the judge of probate.
    Rose and Gholson, for appellant.
    Hogg, contra.
    
    Two causes of revocation were assigned in the court below.
    1. That the appellant is executor of Martin.
    2. That the appellee is not next of kin to him. The jurisdiction of this court is purely appellate; New Constitution, art. 4, s. 4; and here the appellant must be confined to the points agitated below. Gelston v. Hoyt, 17 Johns. Rep. 561, 576; Colden v. Knickerbocker, 2 Cowen, 49, 50.
    1. All the books agree in describing an executor to be one to whom a testator has, by his last will and testament, confided the trust of its execution. An executor, says Blackstone, 2 Com. 503, is he to Ayhom another commits, by will, the execution of that, his last will and testament. To the same effect are Toller, 30; Shep. Touch. 400; 2 Jacob’s Diet. 501. The appellant, therefore, must in some manner found his title to the office on the will of Martin; and whether the power which it contains be valid or not, a point to which I shall presently advert, this is clear beyond dispute, that he must establish a right to the character he claims, independent of his wife, and cannot lean upon her appointment as executrix for support in his pretensions. It is no doubt true that the powers of an executrix, who is a feme covert, are really and legally exercised by the husband; and with reason, as he is responsible for their exercise; but they are not the less her powers. They are vested in her; and his authority is but an emanation from that original and independent source, held by him during the coverture only, dying with her or surviving to her, possessed in her name, and exercised, to invert the metaphor of Blackstone, under her wing, protection and cover. 3 Bac. Abr., (Gwillim’s edition,) Executors and Adminstrators, A. 8, p. 9, 17; Toller, 242. Hence, she is a necessary party to all suits, which depend upon the representative character; and whether she sues or is sued, though the husband must be joined, it is her title that is set forth, her right upon which the action hinges. 1 Chitty’s Plead. 19, 42, 47; Toller, 445, 471. And it is so in the case of guardian in socage, “for the husband must join with the wife in her suits.” Byrne v. Van Hoesen, 5 J. R. 67.
    In the present case, not only is the authority of the appellant terminated by the death of his wife, but he states an independent title in himself, which is not supported by evidence that she was appointed executrix.
    Nor is there more color for the appellant’s claim to be executor, under the power contained in the will, even if it were allowed to be valid and vested in his wife, the executrix. But the only case to which the power here can be likened, is one put hypothetically by Godolphin, and repeated by Bacon, 3 Bac. Abr. 28, in these terms: — “ If one appoint my executor td be his executor, and die, if the will is not void for uncertainty, yet he is dead intestate, until I die, and die testate,” &c. It is a case supposed, and of no authority: it is a case put with diffidence and doubt, and entitled to no consideration. “ The bare naming of an executor in the will, without giving any legacy, or appointing any thing to be done is sufficient to make it a will.” 3 Bac. Abr. 27.
    Then if the power under consideration be upheld, it seems clearly and unquestionably to follow, that a similar power to make an entire will of the most complicated provisions, would be válid also; for the appointment of an executor, is in fact a will, and whether its details are many or few, whether it disposes of much or little, in all its varieties it is a will, and nothing more. It is impossible'to stop' short of this conclusion. . In all cases the authority must be the same in its essence, however it may vary in its scope: the law may deny the power tmiversally in the abstract, but cannot curtail its extent by reference to a particular concrete condition of it; and if it acknowledge such a power to be good, in respect to the fourth part of a man’s estate, there is no principle upon which its invalidity can be asserted in reference to the half or the whole. Put the argument syllogistically:
    A may give B power to appoint A’s executor after A’s death.'
    To appoint an executor is to make a will. Hence, A may give B power to make A’s will, after A’s death.
    This conclusion carries its own refutation on its face,, and is repugnant to every idea and definition of a will. The power here is, therefore, a nullity.
    But if the power could be supported, the situation of the appellant would not be improved; for this record does not contain, nor' is there to be found on this terraqueous globe, a vestige of evidence, to show that it was ever executed in favor of him, or any-other individual. He is equally at fault, whether you shall hold that it might be executed under seal, or in writing, or verbally; but for very obvious reasons, it seems clear, that mere word of mouth would be insufficient. The authorities already referred to„ show that the appointment of an executor is a part of a will: it follows thence, that it must be made in the same solemn manner in which these instruments are executed, and upon the maxim, quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud; what the principal cannot perform but' in a certain mode, cannot be done by his agent in a manner less formal. If the contrary fvere held in this instance, the rule would, as I have already argued, extend to cases where one was empowered to make an entire will for another; for if one part may be made without writing, so-may ten parts, so the whole; and thus our statute might be wholly evaded, and all the mischiefs of oral wills let in upon society.
    But though the record is silent-concerning the execution of the power and the interference of the executrix, it does not leave us to uncertain conjectures respecting the origin of the appellant’s authority, but ‘expressly states, that he was appointed by the court. Now an executor appointed by the court, is a functionary, not engendered in the womb of the law, but in the brain of the judge of probate; a legal monster, by whom no power can be-exercised, by whom no right can be enjoyed, and who can hold no statutes in any of our courts. In this circumstance consists the principal distinction between an executor and an administrator — a distinction in which all the elementary books, as well as the cases concur. That an executor derives his authority from the will, while an administrator, in the language of Toller, (p. 82,) is the officer of the ordinary; and from this source flow all the other rules which discriminate the one from the other. “ As a conse-sequence,” says Toller, (p. 46,) “of the principle, that an executor derives all his title from the will, his interest is completely vested at the testator’s death.”
    On the other hand, the-administrator’s rights are derived from the appointment of the ordinary. Toller, 132. Hence, an executor may exercise complete dominion over the property of the testator before probate; Toller, 45; 3 Bac. Abr. 52. While an administrator cannot act before he receives letters of administration. Bac. Abr. 52, note A. “ The probate is mere ceremony, but when passed, the executor does not derive his title under the probate, but under the will.” Per Ashurst, J., Smith v. Milles, 1 Term. Rep. 480.
    The appellant, therefore, is left without the color of a right to the executorship if he- claims it by direct appointment from the judge of probate. The jurisdiction of. that officer in respect to the proof of wills is said both by Toller., 166, and by Bacon, 3 Bac. Abr. 39, to be ministerial, and certainly is extremely limited. To hear the evidence and determine whether the will has been duly executed is the utmost extent of his judicial province; and when he would stretch his power beyond this and refuse to grant probate to an executor, a mandamus lies to compel him. Toller, 66. The probate or letters testamentary, (which mean the same thing, Toller, 47,) which he issues are, a copy of the will and a certificate that it has been established. Toller, 58:46; 2 Black. Com. 508; 1 Starkie on Ev. 254; Bull. N. P. 246.
    There is another aspect in which the appointment may be viewed; and since it cannot be effectual as constituting the appellant executor, it may be contended that it should operate as a grant of administration to him. This position is utterly untenable, for it is expressly laid down that if administration be granted where there is an executor it is a perfect nullity. Toller, 119.
    The same doctrine is asserted by Chief Justice Marshall with great emphasis in Griffiths v. Frazier, 8 Cranch. 1-14: “Suppose administration to be granted on the estate of a deceased person, whose executor is present in the constant performance of his ex-ecutorial duties; is such an appointment void, or is it only voidable? In the opinion of the court it would be an absolute nullity.” Upon much stronger reason in this case, where at the very moment of granting the administration, if such it be considered, the executrix was before the court and known both to the judge and to the appellant, ought the grant to be held utterly void and abortive.
    2. The second ground of revocation is futile, for the statute gives the administration not to the next of kin of the deceased, but to the distributees — persons who may be different; for as it will presently appear, the husband may in right of his wife be entitled to distribution of an estate of one of her relatives, though not known to the law as next of kin to the deceased. Here we might close. But this cause, even if properly assigned, is not available to the appellant, who, his claim to the executorship being disproved, is stripped of all interest in the case, and has therefore no right to litigate the question. Waiving this for a mpment, we say:
    
      1. Considering the appellee as a stranger to the blood and uninterested in the estate of the testator, the letters are good; for the statute, after “ preferring first the husband or wife,” directs that administration shall be granted to those “next entitled to distribution,” and provides that if none such apply within sixty days from, the death of an intestate or at the next succeeding court after the expiration thereof, the court may grant administration at its discretion. Revised Code, p. 43, s. 54. And where administration de bonis non is required, it is to be granted to the same person and in the same manner as original administration. Ibid, p 45, s. 59. That is, we presume, within sixty days from the death of the executor or administrator, to the persons preferred afterwards at discretion.
    Now it nowhere appears that administration issued to the ap-pellee within the sixty days: this court will not surmise a fact to ground a judgment of reversal, but on the contrary will suppose every thing to have been legally done where the reverse is not shown. Besides, there can be no distributee of the estate in question, for the whole is disposed of by the will: and for “ next of kin,” whence does it appear that there is one in existence?
    The situation of the appellee may be correctly described in the words of Judge Roane in a case not unlike the present in one of its features: “As far as we can judge from the record (he) was wholly without a competitor except to'refute objections made to his competency. * * * He was as if there had been no next of kin or creditor in existence to contend with him, for de non apparentibus et non exist entibus eadem est ratio." Bohn v. Sheppard, 4 Munford, 423.
    2. The appellee is entitled to administer in right of his wife, a daughter and legatee of the deceased. ■
    The stat. 21 Henry 8, c. 5, 3 Bac. Abr. 54, which regulates the grant of administration in England, gives it to the “ next of kin,” yet even there such regard is had to the right of properly that the residuary legatee is preferred to them. 3 Bac. Abr. 19; Toller, 116, 117; 2 Fonblanque on Eq.’ 390, old paging, note (r); 3 Thomas’s Coke, 310, note (o'). And where a husband dies before he has fully administered his wife’s estate, his representative is entitled to administer in exclusion of her relatives. 1 Bac. Abr. Baron and Feme, 480; cases cited by Wickham, arguendo, and Judge Roane’s opinion in Hendren v. Colgin, 4 Munf. 232.
    
    The statute of Virginia, like ours, gives the administration to the distributees. See last cited case and Cutchin v. Wilkinson, 1 Call, 1. And the supreme court lays it down expressly, “ that the person entitled to the estate is entitled to the administration also.” 4 Munf. 233; 1 Call„l.
    Here then the appellee being entitled to a share of the estate is properly appointed administrator. Though we have no statute like the 29 Ch. 2, Cap. 3, sec. 25; 3 Bac. Abr., 55, enacting that the husband shall be entitled to administer and not bound to distribute his wife’s estate, the law of this state is undoubtedly the same as in England in this respect. The English statute is in terms, and has been regarded as merely declaratory, not as introducing a new rule: and it is held that the husband takes by a common law right supposed by the statutes and existing independently of them all. Toller, 84.
    But whatever weight may be allowed to these arguments, this at least can neither be surmounted nor removed: the appellant has no right to raise the objection. What is his interest? Executor, he alleged; but we have disproved his assertion. Then he is a stranger: no, not a stranger. Would that this were an occasion on which we might emblazon his character in its genuine colors and prove to him how thoroughly he is known. He is a troublesome volunteer, an officious intermeddler, a stirrer up of strife respecting matters in which he has neither a legal title nor a moral right to interfere. If he be permitted to litigate on behalf of the next of kin — stare nominis umbra — what is to be the - consequence of your Honor’s judgment on the controversy? It can e$tatoJiSh\n»-.right,.it can quell no claim; and the appellee, discharging an ol^ce burdensome and badly compensated, may be ■ágaM 'Ofljed upon to. defend his title whenever another individual, . actuated by amiisguided zeal, or foul malevolence, shall challenge lnm^toitlje lists. Controversies of this sort, so gratuitous, so futile, so destructive to the quiet? and consuming to the property of men, the law' will not tolerate; but that every question may be fully discussed and finally settled by the adjudications of the courts, it requires the party moving the dispute to have a legal interest in the subject. A principle founded on reasons so obvious and unanswerable might well stand on the basis of its own evident utility, but I will cite a few of the authorities abounding in the books by which it is recognised. Reid v. Vanderheyden, 5 Cowen, 733; Bowen v. Jaley, 11 Wend.
    And last of all Toller, 125, who is exactly to the point. “A person in possession of an administration is not bound to propound his interest, till the party calling in question the grant has first propounded and proved his.”
   Mr. Chief Justice Shakkey

delivered the opinion of the court.

A motion was made in the probate court of Monroe county, to revoke letters of administration de bonis non granted to Griffin Roberts on the goods and chattels of William Martin, for two reasons; first, because he was not the-next of kin; and secondly, because at the time of granting the letters, Samuel A. Edmund-son was surviving executor.

In regard to the first reason, it is a question which could only arise at the instance of the next of kin, no other person having the right to question the grant of administration on that ground, and it does not appear that Edmundson was entitled to the administration as next of kin. If the person entitled to administration do not apply for it within sixty days, then the judge may grant it to some other person; arid it does not appear that the person entitled did apply in this case.

The other point is equally clear. An executor derives his power from the will, and letters testamentary cannot be granted to one who is not appointed by the will. The hnshaad_of an executrix may exercise all the powers of execudag^IE^igustee of the appointment of his wife, without anwMuaiijKation on P|s part. Mrs. Martin, who, after the death ofiraVÍ&tin, interaia^i^L with Edmundson, being appointed executrik hwfllh«Mfiir, herí husband was entitled and indeed bound to actKMrmg her lifig^iati when she died his power Avas at an end. It i|La d¿ff not survive to him, inasmuch as it belonged N^him -rperi^fv in her right as representative of the deceased. Martin on Executors, 157. That he qualified with her cannot make any difference, as such qualification was wholly unnecessary. and illegal, he not having been appointed by the will.' His assent, so far as to make her bond obligatory, was, perhaps, necessary.

The judgment must be affirmed.  