
    Wylie Bluett, Administrator of Arabella Bluett, vs. James Nicholson & William N. Averitt, Executors of Malcom Nicholson, and the Minor Heirs of Malcom Nicholson.
    This Court will only decide such questions as are presented by the cases before it.
    The Administrator of a deceased wife is entitled to receive her distributive share of her father’s estate; and a bill filed by him for that purpose against the Executors of the last will and testament of her father, will be sustained.
    This case, decided at Fall Term, 1846, of Gadsden Circuit Court, Judge Hawkins presiding, was brought up by consent of parties.
    A Bill in Chancery was filed by Complainant as Administrator of his wife, Arabella Bluett, which alleged : That Malcom Nicholson, the father of said Arabella, died, leaving a last will and testament, which was regularly admitted to probate ; and that James Nicholson and William N. Averitt, were appointed the Executors thereof : That the said Nicholson and Averitt were duly qualified as Executors, and took possession of the assetts of the said estate: That on the 6th day of February, 1844, Complainant, a citizen of Georgia, intermarried with the said Arabella, who had removed to the said State, after the death of her father; and that the marriage was solemnized in the said State of Georgia, where the said Complainant, and Arabella resided up to the time of her death, which occurred on 14th December, 1844: That on 8th January, 1845, letters of Administration on the estate of the said Arabella were regularly granted to Complainant, by the County Court of Gadsden County. The Bill further alleged that Mary Hinson, the widow of the said Malcom Nicholson, together with the said Arabella, Archibald, Mary Ann and Angus, the children of the said Malcom, were the devisees under the said will, and entitled to an equal share of the real and personal estate remaining in the hands of the said Executors, after the payment of the specific legacies; and that their portions, with the exception of such amounts as had been handed over to the said Mary, still remained in the hands of the Executors. The Bill then averred a demand by Complainant upon his marriage with said Arabella, and since her death and after his appointment as Administrator, upon the said Executors for her share or portion of the said estate under the said, will; and prayed that the portion of the said -Arabella be set apart and divided according tp the provisions of the said will; and that the said Executors, James Nicholson and William N. Averitt, be ordered and decreed by the Court to deliver the, same to your orator as Administrator of the said Arabella, and for such other-and further relief} &c. • ■ •" . •
    Defendants- demurred to the Bill.
    At Fall Term, 1846, the following agreement was entered of re-cbrd; . ■
    “ By agreement of parties, by f,heir Solicitors, it is ordered that the demurrer filed herein, be sustained,..for- the ..purpose of taking the cause to the Court of Appeals, and that the said judgment shall be without prejudice to either party, and that security-for posts shall not be required.”
    
      CarmachSf Halter for Complainants.
    
      L. A. Thompson and C. II. Dupont, for Defendants.'
   Baltze-ll, J.-,

delivered the following opinion:

This is a suit.in Chancery, filed’ by appellant as Administrator of his wife, who was one of the legatees of the late Malcom Nicholson, deceased, to recover the personal property to which she was entitled by virtue of the will of' her father. Defendants filed a demurrer to the bill, which, by consent of parties, was. sustained, thereby dismissing the bill, so as to take the case to the Appellate Court.

Whilst the right.of Complainant to relief has not been very seriously questioned, the Gourt has been earnestly desired by both parties to decide the question as to the distribution of the property, in the event of a recovery’, whether it shall be held by complainant as husband, without distribution, or whether it shall be distributed agreeably to the law of the State regulating descents.

Desirable as it may be to prevent litigation by an early adjudication of matters in dispute between parties, the Court is constrained by a sense of propriety, as well as the superior injunction of the Constitution of the State, not to determine questions unless they are presented by the cases before them. Such resolutions partake not of the character of decisions and impose no obligation, if indeed they might obtain the respect sometimes accorded to an opinion of the judges informally delivered. The parties are not concluded by them, and so far from ending a controversy, their tendency may be to prolong and embitter it, involving, it is to be feared, the tribunals of justice in the consequences attendant upon a false and erroneous position. A Court should not, we think, especially one of the last resort, so place -itself as to pronounce a decision which may not be rightfully carried into execution. We therefore decline the exercise of jurisdiction until a proper case is made and presented.

This question disposed of, the enquiry remains, whether the Court erred in giving a decree for defendants. There is no reason,'that we have been able to discover, for refusing the relief asked for.— Complainant, as Administrator, is entitled to the estate of his intestate, let the distribution be as it may. The object of the bill was to obtain this, arid no objection has been presented to it either in form or in substance.

The only, point of objection raised, is that the grant of letters of Administration was void; but there is nothing in the record to justify such a conclusion, nor do the pleadings raise the question. The demurrer is a general one to the equity set forth in the bill, and if it does not admit plaintiff’s right in this respect, certainly does not contest nor put it in issue. The fact of non-residence at the date of the grant, upon which this exception has been presented, is not even made out by the record.

We are' of opinion, therefore, that the demurrer should have been •overruled in the Court below, and the defendants ordered to answer.

It is therefore decreed and ordered that the decree of the Superior Court be, and the same is hereby reversed, and the cause remanded tor further proceedings not inconsistent with this opinion.  