
    John Venable, plaintiff in error, vs. Giles Mitchell, defendant in error.
    The executor of a will is the proper administrator of the whole estate, .as well of that part of which the will does not dispose, as of that disposed of by the will.
    Appeal from Ordinary, in Jackson Superior Court. Decision by Judge Hutchins, at August Term, 1859,
    This was an application by the plaintiff in error, for letters of administration on that portion of the estate of William D. Martin, deceased, contained in the sixth clause of the last will and testament of deceased, and which clause had been held and declared void under the statutes of the State prohibiting the emancipation of slaves, &c.
    The Court of Ordinary ordered the letters to issue, holding that the deceased died intestate as to the property mentioned in said sixth clause, and that the same vested in Ins heir sat law, and did not go to the residuary legatee. From this judgment the defendant in error, Giles Mitchell, who was the executor of said will and residuary legatee, appealed, and the cause coming on to be heard in the Superior Court, on the appeal, the presiding Judge of that Court (Hutchins) reversed the judgment of the Ordinary, holding that the residuary legatee was entitled to the property contained in said, clause, and that there was consequently no estate to be administered.
    To this decision Venable, the applicant, excepted and assigns the same as error.
    Geo. Hillyeh; and Akerman, for plaintiff in error.
    Cobb & Lumpkin, contra.
    
   — Stephens J.

By the Court.

delivering the opinion.

This was an application for letters of administration de bonis non, founded upon the idea that the executor could not administer intestate estate. We think this idea is a mistake, for by our statute of 1828, (See Cobb’s Digest,p. 327,)'exe-eutors are directed to hold the "residuum or undevised real or personal estate as trustees for the distributees or next of kin of their deceased testator or testatrix.” It is unnecessary to consider whether or not there is any intestacy in this'case, for under this statute the executor is the proper administrator of the intestate as well as of the testate estate. There was no use, therefore, for an administrator de bonis non, and the application was properly refused.

Judgment affirmed.  