the foregoing statutes of the British Parliament, with others of a later date; and this detail will best be learned from consulting the statutes in the states where occasion occurs for reducing the point to practice. 4 3. The husband, by the English law, as is well known to the profession, had the exclusive right of administering upon his wife's estate, and was entitled to all her personal effects, after the payment of debts and charges, where they had not been reduced to possession during the life of the wife. But in many of the American states the disposition of the estate of the wife after death, whether real or personal, is regulated by statute. In some of those states that portion of her personal effects, not reduced into the possession of the husband during the coverture, will, after the decease of the wife, go to her next kin by blood, and no distinction is made in regard to succession between the real and personal estate of the wife; while in others the rule of the common law prevails by express re-enactment of statute. And the wife, at common law, could not dispose of her personal effects, not in the possession of the husband, even by will, without his consent.7 4. If the husband decease, without having taken letters of administration upon the wife's estate, the probate court will sometimes grant administration to her next of kin, but such 4 Humphrey v. Bullen, 1 Atk. 459; Holt, Ch. J., in Sir George Sands's Case, 3 Salk. 22; Elliot v. Gurr, 2 Phillim. 16, 19; Fawtry v. Fawtry, 1 Salk. 36; 2 Black. Comm. 515. So the husband is entitled, on behalf of his wife, to take letters of administration on the estate of the wife's next of kin deceased intestate, and the wife's renunciation in favor of another, a creditor, will not deprive the husband of his right. Haynes v. Matthews, 1 Sw. & Tr. 460. But if the husband have deserted his wife, administration of her effects will be granted to her next of kin, limited to what she had acquired after the desertion. Worman in re, 1 Sw. & Tr. 513. administrator will be regarded as the trustee of the representatives of the] husband. But the practice of granting administration in the ecclesiastical courts to the wife's next of kin, in cases where they are not beneficially interested in the effects, has been regretted by some of the judges. And the practice seems finally to have been abandoned,10 and administration only granted to the next of kin of the wife, when they were entitled to her effects by settlement. And a similar rule obtains in many of the American states.12 A court of equity will order a fund in the Court of Chancery, standing in the separate account of a married woman, transferred to her personal representative, although the husband is not represented in court, he having survived the wife and deceased without taking administration of her estate.13 5. Where the wife, either by marriage settlement or otherwise, has the right to dispose of her estate by will, even though it be by the consent of the husband merely, and does make such disposition, and no executor is legally appointed to such Elliott v. Collier, 3 Atk. 521. Lord Hardwicke here said, " Upon the equity of the statute of distributions the court makes an administrator de bonis non only a trustee for such part of the testator's personal estate as is undisposed of, for his next of kin; therefore I am of opinion the husband's representative is entitled to the wife's personal estate, and that it vested in the husband before administration was taken out." See, to the same effect, Clark v. Clark, 6 W. & S. 85. And the husband, although not resident within the state, is entitled to administer upon the wife's estate. Weaver v. Chace, 5 R. I. Rep. 356. And this is held even in those states where non-residence is generally regarded as a disqualification for the office of administrator. Sarkie's Appeal, 2 Penn. St. 159. • Gill in re, 1 Hagg. 341, 344. 10 Fielder v. Hanger, 3 Hagg. 769; 1 Wms. Exrs. 360. "Brenchley v. Lynn, 9 Eng. L. & Eq. 583; s. c. 16 Jur. 292. 12 Ward v. Thompson, 6 Gill & J. 349; Sheldon v. Wright, 5 New York Ct. App. 497; Patterson v. High, 8 Ired. Eq. 52; Hilborn v. Hester, id. 55; Randall v. Shrader, 17 Alab. 333. 13 Gutteridge v. Stilwell, 1 My. & K. 486; Loy v. Duckett, 1 Cr. & Ph. 312 1 Wms. Exrs. 361. will, the probate courts will grand administration with the will annexed, as in other cases, the husband having no exclusive right to act in that capacity.14 6. It seems that the probate court have, under the English statute, been regarded as having a discretion whether to grant administration to the widow or next of kin.15 This rule, however, in the English courts, applies only to cases of intestacy, and not in those cases where there is a will, but, for any cause, no executor, in which class of cases the probate court may exercise a discretion, in selecting the person most suitable for the trust. In the American states, the probate courts have the same discretion in both classes of cases. And in general, the widow will here receive the appointment alone, if she so desire, and there be no special reason to the contrary.16 And if she desire any suitable person to have the administration, or for any good reason not to have it, her wishes will in general be consulted." The widow will be excluded from administration, in some states, on account of being a non-resident.18 14 Brenchley v. Lynn, 2 Rob. 441. But the husband may in such cases be entitled to have administration of such of his wife's effects as are not thus disposed of. Id. See also Dawson in re, 2 Rob. 135. But the husband cannot administer upon an estate of which the wife was administratrix. 1 Wms. Exrs. 263. Anon. 1 Strange, 552. Where the widow deserted her children and led an immoral life, administration of her husband's effects was granted to the guardian of the children. Creed in re, 6 Jur. N. s. 590. McGooch v. McGooch, 4 Mass. Rep. 348. If there are creditors, the widow and next of kin may elect to have administration granted to them. Stebbins v. Lathrop, 4 Pick. 33. But she may be excluded for any cause rendering her evidently unsuitable for the discharge of the trust. Stearns v. Fiske, 18 Pick. 24. And in this case it was regarded as sufficient cause for her exclusion, that her appointment was urged by a debtor of the estate, who was under the imputation of having combined with the testator in his lifetime to defraud his creditors, and that her appointment was apparently urged more for the purpose of subserving the private purposes and interest of such debtor than for the protection of any interests of such widow. "Muirhead v. Muirhead, 6 Smedes & Marsh. 451. Radford v. Radford, 5 Dana, 156. 20 7. It is often said the ecclesiastical courts prefer a sole to a joint administration, and that the widow will be preferred to any other, unless special reasons exist why she should not receive the appointment; 19 as where she has barred herself of all interest in her husband's personal estate by her marriage settlement; or where she is of unsound mind; 21 or has eloped from her husband or lived separate from him.22 The wife having married again is no invincible objection to her being administratrix of her former husband, but that circumstance may induce the court to prefer a child.23 Where the husband had been divorced and married again, the second wife should administer; 24 and a wife divorced for adultery forfeits all right to administer upon the effects of her former husband.25 8. As to the question who are the next of kin, and as such entitled to administration, it seems to have been held by the ecclesiastical courts, that it was to be the same persons entitled to the goods of the deceased person under the statute of distributions.26 And although it has been said the statute of distributions must be construed according to the common law,27 the rule of reckoning the degrees of kindred, under the English 19 1 Wms. Exrs. 363, 364. 20 Walker v. Carless, 2 Cas. temp. Lee, 560. 21 Williams in re, 3 Hagg. 217; Dunn in re, 5 Notes of Cases, 97. 24 Ryan v. Ryan, 2 Phillim. 332. 25 Pettifer v. James, Bunbury, 16; Davies in re, 2 Curt. 628. It is no ground of excluding the wife de facto from administering the husband's estate after a cohabitation of twenty years, in the bonâ fide belief of the death of her former husband, that such former husband is still living. White v. Lowe, 1 Redf. Sur. Rep. 376. But a merely colorable cohabitation with a woman will not entitle her to administer as the widow. Davis v. Brown, id. 259. 26 Sir John Nicholl, in Gill in re, 1 Hagg. 342. 27 Blackborough v. Davis, 1 Peere Wms. 41, 49, where it is said by Holt, Ch. J., that a prohibition will issue to prevent the ecclesiastical courts from proceeding under the statute Car. 2, contrary to the rules of the common law. statute of distributions, which has finally prevailed, is that of the Civil law,28 whereby the reckoning is made by going directly from the deceased to the person claiming, where such person is either a direct ancestor or descendant, and in the case of collaterals, by counting the degrees to a common ancestor, and then down to the collateral in question, allowing one degree for each step. Thus the father and son are in equal degrees of kin, and so of the grandfather and grandson. And all the kindred in equal degree, whether male or female, have the same right to administration, except that a preference is given to males before females in an equal degree; and children are entitled before all others; and the issue of deceased children come in their places, by way of representation.29 So, it seems that brothers and sisters are preferred, as to the right of administration, to the grandfather or grandmother, who are in equal degree with the brothers and sisters. And relations on the mother's side are in equal degrees of affinity with those on the father's side, and the half blood the same as the whole blood; so that the children, and their issue in case of their decease, are first entitled; the parents next; then brothers and sisters; and then the grandparents; then uncles and nephews; next, great-grandparents; and finally, cousins.30 9. There is no certain rule by which to guide the discretion of the probate court in selecting among those of equal degrees of affinity, as no two cases will ever be precisely alike in all their circumstances. But it is said they should, and naturally will, prefer that person in whom the greatest number and weight of interests concur; that, other things being equal, the elder should be preferred to the younger, and a son to a daughter; * Wallis v. Hodson, 2 Atk. 114, 117; Mentney v. Petty, Prec. Ch. 593; 1 Wms. Exrs. 365. * Carter v. Crawley, Sir T. Raymond, 496; Evelyn v. Evelyn, Amb. 192. * 2 Black. Comm. 505; 1 Wms. Exrs. 372. We shall have occasion to refer to this subject again, under the head of distribution of estates. |