
    
      Minutes of Superior Court, letter F. p. 225.
    Joseph Clay vs. James Jackson, Applicant for Letters of Administration on the estate of Doctor James B. Young and Wilson and Young, deceased.
    CAVEAT.
   Jones, Judge,

This is an appeal by the caveator, Joseph Clay, from the decision of the court of ordinary, made on the 5th day of November last.

Facts stated :—

Doctor Young divorced an estate from his father William Young; to which estate he made additions in his life time. In 1791, Doctor Young intermarried with Elizabeth Clay. In 1800, Doctor Young died intestate, leaving a widow and child. In October, 1801, the child died, under, age, intestate and without issue. Mrs. Young the widow, administered, and, in 1804 died, having first made a will, and appointed the Reverend Mr. Clay her executor. General Jackson claims administration in right of his wife, who is the sister of Doctor Young. The Reverend Mr. Clay claims it as the executor and brother of Mrs. Young, the widow of Doctor Young. It is contended on the part of General Jackson, that it is not at present of great importance to consider who is entitled to the estate which Doctor Young left; if it was necessary, it might be contended, that nb plenary interest vested in Mrs. Young, or their child at the time of the death of Doctor Young, but in law, may be considered as never vesting until an actual distribution. Be that, however, as it may, there is, there must be, a property of Doctor Young unad-ministered, there are debts to collect, and to pay, which requires an administration, de bonis non. That General Jackson, in right of his wife, who is next of kin to Doctor Young,. is entitled to the administration, 1st. By your own statute, passed 23d December, 1789. Dig. 217. And 2d. By the common law. In this view of the subject, two principles, they contended, may be laid down, 1. That the executor of an administration cannot be in that the representative of the first intestate ; to establish this point, see 2 Bacon, Abr. 385, 386. 11 Viner, Ab. 67. 107. 2. That administrator de bonis non is to be granted to the next of kin, to the first testator, or intestate, vide 2 Bacon, 386. 3 Dyer, 372. 2 Shoyver, 399. 1 Vernon, 200. And on the part of Mr. Clay it is said, 1st, That the first subject of enquiry is, in whom did the estate of Doctor Young vest, on his death, having died intestate. 2. It is contended, that the whole estate, real and personal, vested in his widow and son. 3. That the law settles this point beyond dispute. The words of the act of the 23d December, 1789, are clear and explicit. Dig. 217. Thatunder this law Mrs. Young became entitled to one moiety of Doctor Young's estate, and her son to the other moiety. That the interest thus vested was an absolute and indefeasible interest, both as to the real and personal property. It was no life estate, or estate which ceased on the death of Mrs. Young• It was fee as to the land, and an absolute unqualified interest in the personal property, which descended to her representatives, or the legatees under her will. 2. That the child having died shortly after the father, also intestate, and without issue, the next question is, who inherits the child’s share ? That this point is equally clear under the law. The law gives it to the parent, who was Mrs. Young. Dig. 217.

Act 23d Dec. ,1189.

2 Bac. Ab.385, 386. 11 Viner, 67. 107.

2 Bacon, 386. 3 Dyer, 372 2 Shower, 399. 1 Vernon, 200;

Dig. 217.

That by the death of the child the whole estate vested in Mrs. Young, and was subject to her disposal, to give to whom and as she pleased. That Mrs. Young made a will, as she had aright, and her disposition of the propeity is binding in all courts of justice. Under these circumstances it is enquir-ed, who is entitled to the unadministered estate of Doctor Young ? The person entitled to the property ? or the next of kin ? And it is contended, that these points are indisputable, both from reason and upon the authorities. 1. That administration shall be granted to the person entitled to the estate. 2. That administration shall not be granted to a person not entitled to the estate, though the nearest of kin, or possessing most of the blood of the deceased. The person entitled to the estate shall have the administration. The estate of Doctor Young having vested in Mrs. Young, the property on her death passed to her representatives. The same rules to be observed in granting administration as respects the distribution. The law of itself decides the point. Administration follows the right of distribution. General Jackson is not entitled to a distributive share, either of Doctor Young’s estate or of the widow, Mrs. Young. Mrs. Young succeeded to the estate of Doctor Young, and her representatives (not Doctor Young’s) succeed to the estate. This is also the clear law of England, to which our law adheres very strictly. The persons entitled to the estate shall have the administration, because most interested in taking care of the property. 2 Eq. Ca. Abr. 423. Pl. 5. 425. Pl. 15.

2 Eq. Ca. Ab. 423. pi. 5.425. pi. 15.

n Viner, 88. pl‘ 25' 3‘

nvin, 88 pi. vvjik¡nsoninTSí Calls. Rep. I,

A. makes C. executor and residuary legatee; B. also makes C. executor without the surplus. C. dies intestate. A.’s personal estate shall go to the administrator of C. but B.’s shall go to B.’s next of kin, who shall have the administration. 11 Viner, 88 pl. 25. 3. If a son dies intestate, the father is entitled to the whole of the personal estate, and to administration, and if the father dies before administration is granted, administration shall be granted to his representative, for the estate was an interest vested; for the court regards the property in granting administration. 11 Vin. 83 pl. 25. 1 Calls. Rep. 1. Cutchin vs. Wilkinson. This case was decided in the court of appeals in Virginia in 1797, and is an exact resemblance of the case before the court.

And here administration followed the property, and was granted to the representative of the person last entitled, and. not to the next of kin of the first intestate. Where a child dies intestate, administration shall be granted to such persons as legally represent the child. A father died intestate leaving a son, who died intestate ; administration shall be granted to the next of kin to the son, and not to the next of kin to the father. 3 Modern, 58. For by the stat. 22 and 23 Charles, a right is vested in the child. Swinb. 224. 2d. Administration shall not be granted to the next of kin, if not entitled to the estate. Where there is a residuary legatee, administration may be granted to him, in exclusion of the next of kin, if the executor refuses or dies intestate. 2 Bl. 509. The statute of distributions passed 23d December, 1789, “ that when any person, holding real and personal estate, shall depart this life intestate, the said estate real and personal shall be considered as altogether of the same nature and upon the same footings. So that in case of there being a widow or children, or child, they shall draw equal shares thereof. If the father or mother be alive, and a child dies intestate, and without issue, such father, (or mother, in case the iather be dead, and not otherwise,) shall come in on the same footing as a brother or sister would do.” Dig. 217. Sec. 1 ; and by the second section of the same statute, it is also declared, “ That the same rules shall obtain in regard to the granting letters of administration, or intestate estates as before mentioned, for the distribution thereof; and should any case arise, which is not expressly provided for by this act, respecting intestate estates, the same shall be referred to, and determined by the common law of this land, as it hath stood from the first settlement of this state, except only, that real and personal estate shall always be considered in respect to such distribution as being precisely upon the same footing.” The statute is clear and explicit; and in addition to it, the precedents cited, and the arguments urged by appellant’s counsel, are conclusive. They prove, that the person entitled to the estate, is entitled to administration also ; and consequently, that the applicant has no title.

3 Mod 58. Sta. 22 and 23 Car. Swinb. 224.

2 Bl. 509.

Dig, 21T. Sec.l.

Woodrufffor Appellant.

Mitchell, Bulloch, and JIarris, for Respondents.

Therefore, it is considered and ordered, That letters of administration, de bonis non, of the estate and effects of the said James Box Young, deceased, be granted to the Rev. Joseph Clay, on his giving such security as shall be approved by the Court of Ordinary.

Judgment reversed.  