Eddings v. Long , 10 Ala. 203 ( 1846 )

GOLDTHWAITE, J.

1. The provision of the statute of 1843, requiring the executor or administrator, applying to make a final settlement, to file "a statement on oath of the names and description of the heirs and legatees, [Clay’s Dig. 219, 43,] is directory to the administrator, and is a matter for the ommission of which he is made responsible for all damages arising from his neglect. In all cases it would seem to be quite proper when the legatees or distributees do not appear, for the court to require the necessary information, if in the power of the executor or administrator to give, but in our opinion, it forms no part of the proceedings of the court upon which error can be assigned.

2. The other point in the case is of greater moment, but seems to us entirely clear. The testator, after making what he considered a proper division of his lands, slaves and other effects between those entitled to be remembered, was aware there yet remained a large surplus undisposed of. This he indicates shall go in the precise manner as if no will was made, when he uses the expression that he wishes it to be sold and divided among his legal heirs. When the term heir is used in connection with the personal estate only, there is no conflict in the cases, that it is to receive the construction of next of kin. [Lowndes v. Stone, 4 Vesey, 649; Holloway v. Holloway, 5 Ib. 399; Vaux v. Henderson, 1 J. & W. 388.] This term used solely in this connection seems to be precisely equivalent to legal representatives, and the decisions are numerous where this is held to mean, next of kin, and that these take under the will, as under the statute of distributions. [Bridge v. Abbott, 3 Bro. C. C. 64; Long v. Blackell, 3 Ves. jr. 486 ; Cotton v. Cotton, 2 Beavan, 67.] These authorities are conclusive to show the court did not err in letting in the widow under this bequest, and the statute of distributions determines her share to be one fifth, when there are more children than four. '

Judgment affirmed.