
    The State ex rel. Wm. J. Morrall vs. Wm. J. Fickling, Ordinary.
    
      Ordinary — Derelict Estates'.
    
    Where a deceased Ordinary had in his hands derelict estates, taken possession of under the Act of 1839, before it was repealed, his personal representative cannot compel his successor in office, elected after the repeal of the Act, to take charge of the estates.
    BEFORE MUNRO, J., AT BEAUFORT, FALL TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ The motion for a writ of mandamus is predicated upon the following statement of facts:
    
      “Edward P. Morrall, Esq., who was Ordinary of Beaufort District, died in office, on the day of August, 1857. Administration of his estate was, on the 31st day of the same month, by the Clerk of the Court of Common Pleas, acting as Ordinary, committed to William J. Morrall. William J. Pickling, Esq., was elected to succeed Mr. Morrall on the 26th of September following, was commissioned as Ordinary, and entered upon the duties of the office.
    “In June, 1858, William J. Morrall, as administrator of Edward P. Morrall, the deceased Ordinary, by his attorney, .offered to deliver and pay over to Mr. Pickling, as Ordinary, all the derelict estates which were in the hands of his intestate at the time of his death; who refused, and still refuses to receive the same, on the grounds that the Act of Assembly, (1839,) which made it the duty of the Ordinary to take charge of the derelict estates, had been repealed in 1852, (p. 178,) in the life-time of the late Ordinary.
    “The question raised by the foregoing statement of facts, is whether the present Ordinary of Beaufort can be compelled to receive from the legal representative of his deceased predecessor the derelict estates, which were in the hands of the latter at the time of his decease.
    “ The authority of the Ordinary to take charge of derelict estates, was derived from the Act of 1839. If that Act were still of force, and unrepealed, the question made here would be concluded by the decision of the Court of Equity, in the case of Fowhe v. Thomson, 5 Rich. Eq. 491.
    “I assume, then, that it was by virtue of the authority conferred by the Act of 1839, and prior to the passage of the Act of 1852, repealing the former Act, that the late incumbent took charge of the derelict estates in question; and being in his hands at the time of his death, either wholly or partially un administered, the single question-that is presented here, is, has the authority which the late incumbent derived from the Act of 1839, and prior to its repeal by the Act of 1852, been transmitted to bis successor, tbe present incumbent, notwithstanding he was not elected to tbe office, until five years after the passage of the Act of 1852. It is a proposition that will hardly be doubted, that the only source to which he can look for the authority of the Ordinary, is the law; not, however, to the law as it may have existed during the official term of his predecessor, but to the law as it existed at the time the incumbent was inducted into office, oras it' may have been altered, or modified, during his official term.
    “ Testing the question by this rule, it is too clear for doubt, that as the present incumbent was not elected to the office of Ordinary, until after the Act requiring the Ordinary to take charge of derelict estates had been repealed, he has no authority whatever to receive from the legal representative of his deceased predecessor, tbe derelict estates in question.
    
      “ Whether the law has devolved this authority upon another of its officers by the Act of 1857, which provides for the administration of derelict estates, is a question I am not called upon to determine; this much I, however, will undertake to say, that unless the authority in question has been vested in the officer therein designated, I am utterly at a loss to know where it resides.
    “ Por tbe foregoing reasons, I am compelled to refuse the motion.”
    Tbe relator appealed, and now renewed bis motion before this Court, on tbe ground,
    That tbe power and duty of tbe deceased Ordinary, as to derelict estates, under tbe Act of 1839, attached to bim in bis official, and not in bis personal character; and bis successor in office is the only person to .whom tbe relator should transfer the estates.
    
      Davant, for appellant,
    cited Slroibhart vs. Morrall, 7 Pick. 141.
    Fielding, contra.
   The opinion of the Court was delivered by

O’Neall, J.

This Court concurring in the ruling below, has directed me to announce the judgment of the Court.

To enable me to assign the reasons, I have read several times Judge Munro’s opinion, and it is so entirely satisfactory, that I find it to be impossible to assign other reasons.

We, therefore, express our entire concurrence in the opinion of Judge Munro.

The motion is dismissed.

Wardlaw, Withers, Whither and Glover, JJ., concurred.

Motion dismissed.  