
    
      Charles McBeth v. Benjamin F. Hunt.
    
    The administration should be committed to those having the greatest interest in preserving the estate — and if such persons decline the administration, their wishes and preferences, when the administration is to be committed to a stranger, are entitled to great weight in the exercise of the Ordinary’s discretion.
    The widow is first entitled to letters of administration on the estate of her deceased husband; but it does not follow from this that she may transfer her right to a stranger, and that tire Ordinary is bound to appoint her nominee.
    Where two strangers, one nominated by the widow, applied for administration, and the Ordinary, under a mistake of the law, granted letters to the nominee of the widow — the Court, not perceiving that any injury could result therefrom to the legal rights of the defeated applicant, on appeal, refused to reverse the Ordinary’s decision.
    
      Before Mr. Justice Frost, at Charleston, May Term, 1847. '
    This was an appeal from the decree of the Ordinary for Charleston District, granting to the appellee administration of the estate of Charles T. Brown, deceased.
    The facts stated in the following opinion of the presiding Judge, will sufficiently elucidate the points in the case:
    
      The Presiding Judge. Application had been made to the Ordinary for administration on the estate of C. T. Brown, by the appellee, “ under a nomination by Mrs. Brown, widow of the said C. T. Brown.” At the return of the citation, a petition was filed by the appellant, “claiming the administration for himself, as a creditor and party principally interested in the estate.” “At the hearing of the case, a petition from Mrs. Brown was filed, claiming letters of administration to herself, in person, should her nominee not be appointed.”
    The suggestion and grounds of appeal present, principally,, questions of law. The special verdict agreed on by the parties, finds a purchase, by the appellant, from C. T. Brown and wife, of their interest in the partnership property and effects of George and Savage Smith, and the pendency of a suit in the Court of Equity, for the settlement of the accounts between the parties interested in the said copartnership property: which will more fully appear from the pleadings, exhibits, and decree in that cause. The verdict also finds that C. T. Brown died insolvent; that the appellee was the nominee of Mrs. Brown, but not a relative or creditor of C. T. Brown; and that he was concerned in the Equity suit as Assistant Solicitor in behalf of the heirs of Savage Smith. It appears, from the proceedings in Equity, that George and Savage Smith were possessed of a large copartnership property, consisting of both real and personal estate, and died intestate— the one in 1817, and the other in 1818. A bill was filed in 1822 by Brown and wife, sole distributees of George Smith, against the distributees of Savage Smith, and against the administrators of both estates, for an account of the joint estate, its debts and assets, and of the mutual demands of the partners, and for partition. In February, 1825, it was decreed that certain plantations on Peedee, with the negroes thereon, should be partitioned and assigned to the distribu-tees of George Smith and Savage Smith, respectively — each share to be liable to .an aliquot proportion of the partnership debts, and to remain subject to the final decree which should be made on the mutual demands of the parties, plaintiff and defendant. Soon after the partition in Feb. 1825, Brown and wife assigned to the appellant all their interest in the plantation and negroes allotted to them: and also all their claim and interest in the joint estate of George and Savage Smith,- and their interest in a demand of Josiah Smith against the said firm, “ subject, however, to the debts due and owing the said firm, and to the accounts between the parties interested therein: and the final adjustment of the copartnership and accounts.” The deed of assignment further provides that the appellant “ should thenceforth stand and be in the place and stead of the said C. T. Brown and Sarah E., his wife, and of each of them, in the adjustment and settlement of the said partnership estate and effects.” “The said B. F. Hunt being entitled to all the rights, privileges, demands and claims, and subject to all the duties, obligations, and responsibilities of the said C. T. Brown and Sarah E., his wife, and each of them, in the final settlement, adjustment, and division of the said copartnership estates, real and personal.”
    Appellant, as assignee, and the heirs of Savage Smith are engaged in a litigation in the Court of Equity, for the settlement of the various matters of account before stated. The appellant objected to the proceedings in Equity, that necessary parties for the final adjustment of the accounts, were not parties to this suit. It was thereupon decreed that the appellant “was entitled to the assistance of Brown or his representative in taking the account, and it was ordered that the administrators of Brown and of George Smith should be made parties.” In consequence of this decretal order, application for administration on the estates of Brown and George Smith was made to the Ordinary, whose decree, granting administration to Charles McBeth, is the subject of appeal. The appellee has no legal claim to the administration of these estates, having no interest in them, and being neither of kindred to either of the intestates, nor a creditor.
    Nor has the appellee any right as the nominee of the widow. The Ordinary rests his decree on the authority of Hutchet Sp Thompson, 2 Hill’s Rep. 437, which he assumes to have decided, that when a widow waives her right, and appoints a stranger to take administration, it must be granted to her nominee in preference to another stranger or creditor. That case only decided that, in the absence of kindred and creditors of the intestate, it is discretionary with the Ordinary to whom he will grant administration, as well by the common law as by the Act of 1789: and that as at common law he had the power of revoking administration at pleasure, there was nothing in the Act of 1789 to divest him of that power in reference to strangers: though the temporal Courts may control him in the exercise of it, by judging of the sufficiency of the grounds on which he proceeds. The decree of the Ordinary in that case, revoking the administration which had been granted to Thompson, a stranger, and granting it to the attorney of the widow, who was resident abroad, and entitled to the estate, was affirmed, on the ground that the Court would not undertake to say the Ordinary had not exercised a sound discretion in revoking administration to a stranger, and granting it to one who would have been preferred to Thompson, though not entitled in strict right. The Judge who delivered the opinion of the Court, after reviewing the English cases, expressly declines to affirm the rule to be deduced from them, that the .attorney of the next of bin, resident abroad, has any preferable legal claim to the Administration.
    The case in appeal is, besides, excepted from the authority of Huchet v. Thompson, by material and controlling circumstances. The preference, which in that case was allowed to the nominee of the widow, before another stranger, depended on her residence abroad, and her sole interest in the estate. Mrs. Brown is not resident within the jurisdiction, nor has she any immediate interest in the administration. The estate of C. T. Brown is insolvent. The. property assigned to appellant by Brown and wife, is, by the order for partition, charged with the payment of any balance which may be found due by the representatives of George Smith, in the accounts ordered hy the' decree to be taken; and even if the appellant could, eventually, be a creditor of the estate of C. T. Brown, (which is denied on behalf of Mrs. Brown,) she having received nothing from that estate, cannot be affected by any liability to which it may be subjected.
    The case of Huchet Sp Thompson recognizes the controlling authority of the temporal Courts in the grants of administration, when it is discretionary with the Ordinary. The objection to the appointment of the appellee, that he is the Solicitor of the heirs of Savage Smith in the pending litigation in Equity, seems to be irresistible. That litigation is substantially between the appellant and the heirs of Savage Smith. The share of each in the copartnership property will he increased or reduced by the result of the account. As assignee of Brown and wife, the appellant claims, against the copartnership property, certain charges in light of George Smith and of Brown and wife, against Savage Smith in his life time, and against his heirs since his death; and the heirs of Savage Smith, in like.'manner, in the right of Savage Smith, and in their own right, since his death, claim against the copartnership property certain charges against George Smith in his life time, and against Brown and wife and their assignee. To confer on one of the heirs of Savage Smith the power which an administrator of George Smith and C. T. Brown may exercise over the subjects of litigation, would be a virtual surrender of one of the parties in the suit to the ■ other. The complainants would then have possession of all the vouchers and evidence by which the assignee of Brown and wife might maintain his own claims or resist those made against him; and in so far as his rights may depend on the admissions, acts and defaults of the administrator, as a party to the suit, ho would be represented and controlled by his adversary.
    The case is not varied if the Solicitor be substituted for one of the heirs. The high character of the Solicitor is no reply to the objection. In the administration of law, general principles must be enforced, without respect of persons. It is sufficient that the party interested against the appointment makes the objection.
    It is contended that the appeal comprehends the right of each of the parties to the administration, and- a decision only reversing the decree of the Ordinary would be partial; and that it is necessary, to the full and complete decision of the appeal, that the right of the appellant to the administration should also be adjudicated.
    It is conceded by both parties that an appeal does not confer on this Court an original jurisdiction in the grant of administration. It follows that, if an appointment be reversed, this Court cannot proceed to.substitute an administrator in the place of him whose appointment it has refused to confirm. The appointment of an administrator, when strangers only apply, is vested in the discretion of the Ordinary. The authority of this Court is only supervisory. The power of supervision would be exceeded, and the jurisdiction of the Ordinary assumed, if this Court, having reversed one appointment, should proceed to nominate a substitute. An appeal is limited to the affirming or reversing the judgment, sentence, or decree, which is the subject of appeal. The proceedings which may be rendered necessary by the result of the appeal, must be resumed in the original jurisdiction. The decree of the Ordinary in this case is limited to the grant of administration to the appellee. The duty of this Court seems to be discharged when it has decided respecting the validity of that appointment. The appointment of the appellant was not a necessary alternative, imposed by law on the Ordinary, in case of his refusal to grant administration to the appellee. The appellant’s right cannot therefore be affirmed by this Court, as a legal consequence of the revocation of the grant to the appellee. If it undertook to decide that the appellant should have the administration, that could only be done by the exercise of a discretionary power in the selection of a suitable person. But such discretionary power does not belong to this Court. Mrs. Brown was also an applicant for the administration. It is to be inferred, from the decree of the Ordinary, that he would have felt constrained to grant administration to her, if he had not granted it to her nominee. They represented the same right, and Mrs. Brown cannot be concluded, by an implied assent to the decree, prejudicial to her personal claim, by her omission to appeal against her own nomination.
    It is argued, that the grant of administration to the app el-lee, is a “denial” of the same to the appellant; and that the Act of 1839 gives an appeal from every “judgment, decree, sentence, determination, denial, or order” of the Ordinary. The proper construction of the Act requires that the right of appeal should be limited to such “denial” only as may be the direct and immediate subject of a judgment or decree of the Ordinary. If it comprehended such implied and consequential denial as may result from the preference of one applicant for administration over others, who may contest the right of the successful claimant, it would throw on this Court, in many cases, the duty of granting administration, without the opportunity of being directed, in such discretionary exercise of power, which, deciding as in the first instance, it should possess. The claims of other parties who might be entitled to a preference, in case the administration first granted be revoked, would be precluded,.since no citation can issue from this Court for such parties to appear and make their claim.
    Without deciding the right of the appellant, it is ordered that the decree of the Ordinary, granting administration to the appellee, be reversed, and judgment rendered accordingly on the suggestion.
    Notice was given, on behalf of Chas. McBeth, as the nominee of Sarah B. Brown, widow of the deceased, C. T. Brown, that he would move the Court of Appeals to set aside the order of his Honor, Judge Frost, reversing the decree of the Ordinary in the above stated matter, for error, on the following grounds:
    1. Because his Honor has decided that the Solicitor of one whose interests are or may be adverse to those of the deceased, cannot be appointed his administrator under the nomination of the widow.
    2. Because it did not appear, by the finding of the jury, according to the special verdict drawn up by the attorney of the appellant, from the Ordinary’s decree, that the said appellant had made any application for the administration himself; and in the absence of any adverse application, the Ordinary was bound to grant the administration to the nominee of the widow- — -and his Honor, being confined to the facts found by the verdict, should so have decided.
    3. Because the only persons interested in an estate being kindred and creditors, the appellant, (even if his claim might properly be considered by his Honor,) a stranger, and not interested for any such persons, should not have prevented the grant of administration to the nominee of the widow.
    
      4. Because, under all the circumstances, the grant of administration to the nominee of the widow was right and proper, and the Ordinary’s decree should have been confirmed.
    5. Because the sentence of the Judge being to reverse the decree of the Ordinary generally, it would operate as a revocation of the administration granted to Charles McBeth, of the estate of George Smith, from which there was no appeal.
    6. Because his Honor’s decision is, in other respects, contrary to law.
    Mitchell, Yeadon, for the motion.
    Magrath, Memminger, contra.
    
   Evans, J.

delivered the opinion* of the Court.

The Act of 1839, which is only a re-enaction 'of what was the law before, has prescribed a certain order, in which the Ordinary is required to grant administration. The widow is first entitled, and I concur fully in what is said in 2 Hill, 347, in Thompson v. Huchet, that if she had applied, the Ordinary would have had no discretion. The law has given her the right, and it cannot be denied to her. But it by no means follows, from this, that she may transfer her right to a stranger, and that the Ordinary is bound to appoint her nominee, as he seems to have supposed was decided in the case above referred to. This would be giving her not only the right to administer, but also the power of appointment, thus substituting her discretion for that of the Ordinary. The case of Thompson v. Huchet decides nothing more than that the Ordinary, in his discretion, might revoke an administration granted to one stranger, and grant it to another stranger, at the request and nomination of the widow. The principle to be gathered from the Act of the Legislature, and the decisions in England and some of the States, is, that the administration should be committed to those having the greatest interest in preserving the estate' — and if such persons decline the administration, their wishes and preferences, where the administration is to be committed to a stranger, are entitled to great weight in the exercise of the Ordinary’s discretion. In this case, the appellee based his claim to the administration of the estate, on the ground that he was a creditor — but there is no evidence of the fact, and it is not found in the special verdict — he must therefore be regarded as a stranger, presenting himself as one not having any legal claims, but as one willing and desirous of being appointed administrator. In thus stating the case, I do not mean to say that, as a creditor, he is entitled to preference over a stranger. The Act is not very clear on this point, and we mean to decide nothing that is outside of the case made. Brown has been dead several years, and it is conceded that he died utterly insolvent. His assets, it is said, are only fourteen dollars, and his debts as many thousands. This controversy is therefore nqt who-shall have bis assets, but who shall have possession of his papers. _ The appellee contends that he is engaged in a litigation in the Court of Equity, in which these papers are of importance to him, and should not be committed to the attorney of his adversaries. There is something plausible in this, and if the facts were clearly established, would be entitled to some weight; but, on the other hand, reasons equally strong are assigned why the custody of the papers (for that is the controversy) should not be given to the appellee. The question presented itself to my mind, during the argument, whether, on a mere administration order, within the discretion of the Ordinary, not affecting legal rights, an appeal lies to'the Court of Common Pleas. The words of the Act are very comprehensive, but the question is not whether a decree of the Ordinary may not be appealed from, but who has the right of appeal. Can any one appeal who has no legal right, on the ground merely that the Ordinary has not exercised his discretion properly? But. in the view which is taken of the case by this Court, it is not necessary to decide that question. The case is before us. It has been argued on its merits, and upon them we will decide the case. Brown died some years ago, wholly insolvent, and it is not likely that any administration would .ever have been applied for but for the order in the Court of Equity, that certain proceedings should be amended by making other parties, so that the legal representatives of George Smith, Savage Smith and George T. Brown should be before the Court. In consequence of this order, the appellant, McBeth, has been appointed by the Ordinary. To this appointment Col. Hunt objects, and we are to decide on the objection. The objection is not founded on any legal right, but is addressed wholly as argument to the discretion of the Court. As I understand the case, from reading the Chancellor’s decree, the questions involved in the cases in Equity relate to the following matters: 1. Can Col. Hunt, as the assignee of Brown and wife, charge the partnership of George and Savage Smith with the sum of $23,000, advanced by Josiah Smith, the grandfather of Mrs. Brown?' 2. The settlement of the copartnership, as between the partners ; and 3. What amount was received by Brown and wife, as distributees of George Smith, from the partnership effects. This latter involves the further question, whether the payments to Brown and wife were from the partnership effects, or the individual estate of George Smith. Brown was not the administrator of 'Josiah Smith or George Smith, and we have no reason to suppose any of the vouchers, receipts or other papers ever came to his possession. The papers which relate to the alleged advance of money by Josiah Smith, are, or should be, in the possession of his legal representative. Those which concern the partnership, belong to the representatives of the partners. As to Brown’s receipts for what was paid to him, I should suppose those who paid took and have the possession of the receipts. Col. Hunt in the settlement cannot be charged with any payments to Brown, without the introduction of Brown’s receipt — and then it will appear whether the payment was on account of the partnership or the separate estate of George Smith. As the Chancellor, in directing the bill to be amended, says that Col. Hunt “is entitled to the assistance of Brown or his representatives in taking the account,” I should be very reluctant to see any one who occupies an adverse position placed in the administration of Brown’s estate. But I am wholly unable to perceive that the administration granted to McBeth will enable him to do any thing from which an injury can arise in the adjustment of those questions which are at issue in the Court of Equity. Besides, it is conceded that if this administration were revoked, the Ordinary would be compellable to grant letters to Mrs. Brown. The business of course would be under the direction and control of McBeth, whom she has employed as her attorney to manage the estate. After the threat, as appears by her letter, Col. Hunt has made to sue her on the covenants in the deed of assignment, Mrs. Brown will hardly permit the papers of her husband to go into his hands, by allowing him to administer. We do not perceive that any valid objection exists to the Ordinary’s decree. It would seem he decided on the belief that the nominee of the widow had a legal preference. In this he was wrong, but it does not follow that it should be reversed on that account. The judgment may be right, and the reason assigned wrong, but this is no ground of reversal,, if sufficient reason for the decision exists. The case in Equity has been pending more than twenty years. It is time it should be ended. To send this case back to the Ordinary, would in all probability operate .as a further delay, without putting the appellee in any better condition than he is at present. For these reasons a majority •of the Court are of opinion that the decision of the Circuit Court should be reversed, and the decree of the Ordinary .sustained. It is therefore ordered that the postea, be delivered to the appellant, McBeth.

O’Neall, J. Wardlaw, X and Withers, X concurred.

Motion granted.  