Leverett v. Dismukes , 10 Ga. 98 ( 1851 )

By the Court.

Lumpkin, J.

delivering the opinion.

The controversy in this case is, who is entitled to letters of administration on the estate of Wm. Leverett, deceased? Wm. H. D. Dismukes claims, as the husband of the sister and only distributee of the deceased. Mastin W. Leverett applies, as the nearest of kin and only blood relative, who is capable of administering.

[1.] "There being in this case neither widow nor child, or children, or the representatives^ children, nor father, nor mother, it is clear that'the sister, Mrs. Dismukes, is entitled to the whole estate of the deceased, real and personal. And the Statute of 1789 is explicit, “ That the same rules shall obtain in regard to the granting letters of administration on intestate estates, as regulates the distribution thereof.”" New Digest, 305.

And it is a rule of the English law, no less than our own, that administration follows the right of distribution. Toll. 116. And the reason given, why the person having title to the estate, ought to have the adminstration is, because he is most interested and will take best care of it. 2. Eq. Ca. Abr. 423, pl. 5. Ibid, 425, pl. 15.

So far, indeed, is the doctrine carried, which gives the administration to the person entitled to the property, that although the Statute directs the husband or wife to be preferred, yet, their claim will yield when the estate is to go to other persons; as when by settlement, upon the death of the feme, her property is to pass to her representatives, to the exclusion of her husband, her relatives shall have the administration, in preference to the husband, or his representatives. Toll. 85, 116. Bay vs. Dudgeon. 6 Munf. 132.

[2.J The claim, therefore, set up by the uncle in this case, in consequence of his being the nearest blood relation of the deceased, is not sustained, either by reason or authority.

If a son dies intestate, and without brothers or sisters, the father is entitled to the whole of the 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 Viner, 88, pl. 25. Cutchin vs. Wilkinson, 1 Call’s R. 1. This case was decided in the Court of Appeals in Virginia, in 1797, and resembles in principle, the case before the Court.

For, by the Act of 1827, (New Dig. 294,) as well as by the 29th Charles II, ch. 3, (Ibid, 1129,) the husband is entitled by administration to recoverall the estate of his wife, real and personal, as well as her rights and credits, and enjoy thd same, without being subject to distribution.

Whether he survive her o.r not, therefore, he is entitled to the administration, because he is-to the property; and it never could be said of him that he was- administrator contrary to the meaning of the Act, which declares that the person entitled to the estate, is entitled to the administration. And if she were to contract debts in her lifetime, to which the property would be subject in the hands of her husband as administrator, it would be as accessible to creditors there, as anywhere else.

It is laid down in Viner, 84, (tit. Executors) No. 7, on one authority, that when the wife is next of kin to an intestate, the husband shall not be joined in the administration with her. If, however, administration be granted to the husband and wife only during coverture, it is perhaps good. 12 Viner, 84. Allen, 36. But it is further said, that when' the wúfe is entitled, and she refuses to take the administration in her own name, the constant practice is to admit the husband. Van Thunen vs. Van Thunen, 11 Viner, 84, marginal note, Gibb. 203.

[3.] But by the Act of 1828, a feme covert cannot be an executrix or administratrix, during the coverture, but her letters, even when already granted, shall abate. A fortiori, although otherwise entitled, will they be loitkheld from her, on account of the coverture. But in either event the husband shall be entitled to such letters, upon his complying with the requisitions of the Jaw. New Digest, 327. We hold these inferences to be irresistible : 1st. That by the Act of 1828, a married woman cannot be the representative of an estate; and secondly,~ that whenever she would be otherwise entitled, and is disqualified by reason of the coverture, that the husband is next entitled, in preference to any body else.

We must affirm, therefore, the judgment of the Superior Court, reversing the decision of the Court of Ordinary of Stewart County, and so hold with the former, that the .husband of the only sister of the deceased, and who "was his sole heir at law, is entitled to the administration upon the estate, in preference to his uncle, notwithstanding he was nearer in blood to the deceased.