520

(Supreme Court of Michigan, 1901. 124 Mich. 446, 86 N. W. 959.)

19

MONTGOMERY, C. J. This case was decided at the June term, 1900, and is reported in 124 Mich. 440, 83 N. W. 97. A rehearing has been granted, and we have been favored with full briefs and able arguments by counsel.

It is strenuously insisted that the court was in error in determining that on the probate of a will it is not the duty of the court to construe the terms of the will. Upon full consideration, we are thoroughly convinced that the former opinion correctly states the general rule. In Woerner, Adm'n, § 222, p. *485, it is said: "A court of probate determines only whether the instrument propounded has been executed by the testator and attested by the witnesses in the manner prescribed by the statute, and that he possesses a sufficient testamentary capacity; in other words, whether the instrument is the testator's spontaneous act, expressing his last will in the form recognized by law. Its approval of the will relates only to the form. Void bequests are not validated thereby, nor should the probate distinguish between valid and void, should embrace these three elemental facts: First, the absence of debts against the estate; second, the legal age of each of the heirs entitled to share in its distribution; and, third, a unanimity among them as expressed by their agreement or acts to dispense with an administration. In the absence of these three elements, it cannot be said the title vested in the administrator is a mere naked trust. If creditors exist, they have the right to an administration of the estate in the manner provided by law. If any of the heirs is of nonage, he cannot consent to a 'domestic distribution,' and his right to the protection of an administration cannot be contracted away by the others in interest. And, lastly, it may be stated as a self-evident proposition that no heir against his will can be deprived of the benefit of administration. He may fear the possibility that in course of time some one may come forward with a fictitious demand against the estate, relying for success on the fact that the evidence by which it could have been refuted has perished, or he may prefer not to attempt to make an agreement with the other heirs for a division of the estate, but to let the law take its course. He cannot be coerced into an agreement, nor be deprived of the protection of an administration, except by consent." Johnson, J., in Griesel v. Jones, 123 Mo. App. 45, 99 S. W. 769 (1907).

In Koslowski v. Neuman, 74 Neb. 704, 105 N. W. 295, 3 L. R. A. (N. S.) 704 (1905), an agreement by an intestate to let all his property at his death "descend to and belong to" one K., who was not an heir or one of the next of kin, was held to entitle K., as equitable owner, to retain the property against the administrator in the absence of a showing that the deceased left creditors. See 3 L. R. A. (N. S.) 701, note.

Under the Washington statute, the testator may empower his executors to administer his estate without the intervention of the probate court. Moore v. Kirkman, 19 Wash. 605, 54 Pac. 24 (1898); Strand v. Stewart, 51 Wash. 685, 99 Pac. 1027 (1909). But the will must be admitted to probate. Shufeldt v. Hughes (Wash.) 104 Pac. 253 (1909). In some states a residuary legatee, by giving a bond to pay all debts and legacies, is enabled to dispense with certain probate proceedings and acquires certain peculiar rights and liabilities. See Thompson v. Pope, 77 Neb. 338, 109 N. W. 498 (1906) and cases cited; In re Pope's Estate, Caulton v. Pope, 83 Neb. 723, 120 N. W. 191 (1909).

19 Part only of the opinion on rehearing is given.

certain and uncertain, rational or impossible dispositions of the testator. All such questions are for the courts of construction, which are bound by the judgments of the courts of probate only as to the due execution." In addition to the cases cited in our former opinion, this holding is supported by Cox v. Cox, 101 Mo. 168, 13 S. W. 1055, and the cases cited at page *502 of Woerner, note 4. See, also, Hawes v. Humphrey, 9 Pick. (Mass.) 350, 20 Am. Dec. 481.

It is true as stated in our former opinion, that the probate court, upon the distribution of the estate, may construe the will for certain purposes. But, as was said by Campbell, C. J., in Frazer v. Circuit Judge, 39 Mich. 198, the question to be determined upon the probate of a will is the question of will or no will. But it is contended that there may be cases in which, as bearing upon the other issues in the case, it is necessary, in the probate of a will, for the court, in some. measure, to construe the will. This was not denied in the former opinion, nor was it denied the contestants in this case by the trial judge. The court, in effect, charged the jury that the provision relating to the establishment of a home for aged men and women was, in part at least, void in law, but declined to charge that this would invalidate the whole will, and in this, we think, he committed no error. If, as a matter of fact, the estate left was insufficient to establish a home for aged men and women, the proponent would take under the will, irrespective of the question of the validity of the trust. We can add little to what was said in our former opinion upon this subject.

The other questions discussed on the rehearing have had full consideration, but we are not disposed to depart from our former holding, and the judgment will stand affirmed.

SECTION 3.-THE APPOINTMENT AND REMOVAL OF EXECUTORS AND ADMINISTRATORS 20

JOHNSON v. JOHNSON.

(Supreme Court of Rhode Island, 1885. 15 R. I. 109, 23 Atl. 106.)

MATTESON, J. This is an appeal from a decree of the court of probate of Cranston, appointing an administrator of the estate of Anna Johnson, deceased. The intestate died in Cranston on the 17th day

20 An "executor" is a person named in the will, and in consequence appointed by the court, to administer the estate of the testator. An "administrator" is a person, not named by a testator, appointed to administer the estate of a deceased An "administrator with the will annexed" (cum testamento annexo) is an administrator appointed to administer the estate of a testator where for some reason there is no executor. An "administrator de

of January, 1885. At and for several years prior to her death she had resided in Cranston, and in the family of Charles E. Johnson, the appellee, whose wife, also deceased, was her illegitimate daughter. The appellant, Walter H. Johnson, and his sister, Mary E. Seward, wife of Charles R. Seward, of Chicago, Ill., are children of the said Charles E. Johnson by his said wife, and grandchildren of the intestate. Both Charles E. Johnson and his son, the said Walter H. Johnson, made application to the court of probate to be appointed administrator. Mrs. Seward objected to the appointment of her brother, and requested the appointment of her father. The court appointed the father, and the son appealed.

The son claimed the appointment as next of kin of the intestate, under Pub. St. c. 184, § 4, which is as follows: "Administration of the estate, both real and personal, of a person dying intestate, shall be granted to the widow or next of kin of the intestate, being suitable persons, and of the age of twenty-one years, or to both, as the court of probate shall think fit." On the part of the father it was argued that Pub. St. c. 184, § 4, had no application, the son not being, in contemplation of law, next of kin of the intestate, because his mother, being the illegitimate daughter of the intestate, was not, at common law, of the kindred of the mother, though the same blood ran in their veins; and that, while Pub. St. c. 187, § 7, in these words: "Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother"-has so far changed the common law as to enable illegitimate children to take and transmit inheritances collaterally on the part of their mother, the statutes have nowhere made such illegitimate children kindred of their mother, and consequently, as the mother of the appellant was not kindred of the intestate, her son is not.

If we concede the force of this argument, and grant that the appel

bonis non" is an administrator appointed to carry on the administration of an estate where for any reason a partial administration only has been had. An "administrator de bonis non cum testamento annexo" is an administrator appointed to carry on the administration of an estate where a partial administration has taken place under a probated will. A "public administrator" is an officer designated by statute to administer the estates of persons dying intestate without relatives entitled or willing to administer. In In re Esate of McWhirter, 235 Ill. 607, 85 N. E. 918 (1908), a public administrator was held entitled to administer as against the nominee of the nonresident distributees. The statutes vary somewhat. An "administrator pendente lite" is one appointed to preserve the estate pending a contest over the appoint. ment of a permanent executor or administrator. A "special administrator" is (1) an administrator pendente lite, and (2) an administrator for any other temporary and limited purpose. See Clemens v. Walker, 40 Ala. 189, 198 (1866). On administrators pendente lite, see 6 Am. & Eng. Aun. Cas. 263, note. At common law an executor of an executor was ipso facto the executor of the first testator. That rule seems still to exist in a few states. See Jepson v. Martin, 116 Ga. 772, 43 S. E. 75 (1902). But in most states the rule is obsolete. In the Estate of Alexander Harper, [1909] P. 88, the executors of a sole executor and universal legatee were allowed to hold the assets of the original estate on bond without sureties, no answer having been received to advertisements for creditors.

lant is not, in legal contemplation, next of kin to the intestate, we nevertheless think that he is entitled to the appointment, If he is not to be regarded as such next of kin, then no application by such next of kin for letters of administration has been made within 30 days from the death of the intestate, and under Pub. St. c. 184, § 5, it is competent for the court to commit administration to some suitable person of, full age, not a member of the court. For aught that appeared at the hearing, the appellant answers these requirements of the statute. In granting administration the primary object is the interest of the estate; hence courts have deemed it their duty to place the administration in the hands of the person most likely to convert the property to the best advantage of those beneficially interested. Other things being equal, that person will be he who is entitled as distributee, in whole or in part, to the residue of the estate after the claims of creditors have been satisfied, because of his interest. It is therefore an established principle governing courts exercising probate jurisdiction that the right to the administration of the effects of an intestate follows the property in them. In re Goods of Gill, 1 Haag. Ecc. 341, 342; Wetdrill v. Wright, 2 Phillim. Ecc. 243, 248; Ellmaker's Estate, 4 Watts (Pa.) 34, 38; Sweezey v. Willis, 1 Bradf. Sur. (N. Y.) 495-497; Hall v. Thayer, 105 Mass. 219, 224, 7 Am. Rep. 513; Thornton v. Winston, 4 Leigh (Va.) 153, 160, 162; Clay v. Jackson, T. U. P. Charlt. 71, 73; Leverett v. Dismukes, 10 Ga. 98, 99.

In 1 Will. Ex'rs 436, the author remarks that both in the commonlaw and spiritual courts it has always been considered that the object of the statutes of administration, 31 Edw. III, c. 11, and 21 Hen. VIII, c. 5, is to give the management of the property to the person who has the beneficial interest in it; and the inclination to effectuate this object. has been so strong that in some instances not only the practice of the ecclesiastical court, but the decisions of the judges delegate, have not scrupled to disregard the express words of the statute; and he cites the cases of Bridges v. Duke of Newcastle, cited by the court in West v. Willby, 3 Phillim. Ecc. 381, and Young v. Peirce, Freem. 496. In the former, Lord Hollis had died intestate, and Bridges claimed administration as next of kin. The effects were vested by act of parliament in the duke of Newcastle, to pay the debts of the deceased. The judge of the prerogative court, and afterwards the delegates, held that the next of kin was excluded on the ground that he had no interest, and granted administration to the duke of Newcastle. In the latter, administration was refused by the prerogative and the delegates to a next of kin on the ground that she had released her interest, and the letters were granted to the party beneficially entitled to the personal estate. And see, also, Thornton v. Winston, 4 Leigh (Va.) 153, 163; Leverett v. Dismukes, 10 Ga. 98, 99.

Under our statutes of descent and distribution (Pub. St. c. 187, §§ 1, 5, 7, 9), the appellant and his sister are the persons entitled to the surplus of the personal estate of the intestate after payment of her just

debts, funeral charges, and the expenses of settling her estate. It follows, therefore, that they are the persons who would, if competent, be entitled to the administration. Mrs. Seward, however, is not an applicant, and, if she were, her coverture and nonresidence would probably be regarded as sufficient disqualifications to prevent her appointment. If there was any good reason against appointing her brother, her wishes in regard to the appointment would be entitled to consideration; but, in the absence of such reason, we cannot permit them to operate to his exclusion, he being equally entitled with herself, and both competent and desirous to act. McBeth v. Hunt, 2 Strob. (S. C.) 335; Heron's Estate, 6 Phila. (Pa.) 87, 88; In re Cresse, 28 N. J. Eq. 236, 237; Cobb v. Newcomb, 19 Pick. (Mass.) 336.

The decree of the court below must be reversed, and letters of administration granted to the appellant. Order accordingly.*

JUDGE OF PROBATE v. CHAMBERLAIN.

(Superior Court of Judicature of New Hampshire, 1824. 3 N. H. 129.) This was an action of debt upon a probate bond, given by the defendant upon his taking upon himself the burthen of executing the will of Moses Chamberlain, deceased. The defendant was defaulted, and upon a hearing of the parties as to the sum for which execution. ought to be awarded, it appeared, that the said Moses, the testator, by his will, gave to his daughter Rhoda $100, to be paid to her in one year after the decease of her mother. Rhoda having married Lemuel Wheelock, died without issue, after the decease of her father, but before the decease of her mother, leaving several brothers and sisters. The mother of Rhoda died in the year 1819. The question was, whether the husband of Rhoda was entitled to the said legacy?

RICHARDSON, C. J. At the common law, administration of the estate of a person dying intestate, belonged of right to no particular person, but it was in the discretion of the ordinary to grant administration to whom he saw fit. But the statute of 21 Hen. VIII gave the administration to the next of kin; and when there happened to be more than one of equal akin, he, who first took administration, was entitled to the surplus of the personal estate, after paying the debts. The law thus remained, until, by the statute of 22 & 23 Car. II, c. 10, administrators were made liable to make a distribution. But that statute made no express mention of a husband's administering to his wife; and as no person could be in equal degree to the wife with the husband, he was held not to be within the act. And the statute of 29 Car. II, c. 3, § 25, expressly declared, that the husband might demand

* That an adopted child had no right as such child to administer the estate of the adopting parent was held in In re Smith's Estate, 225 Pa. 630, 74 Atl. 622 (1909).