Henrietta Horskins, and Peter H. Morel vs. John Morel, Applicant for Letters of Administration of the estate and effects of Henrietta B. Jones, deceased, 1 Charlton Rep. 69

Jones, Judge, It appears that the court of ordinary did, on hearing the parties in this case, order, that letters of administration (w ith the will annexed) of the estate and effects of Henrietta B. Jones, deceased, be granted to Mrs. Henrietta Horskins, upon her giving bond with Doct. John Irvine and Edward Harden, in the sum of ten thousand dollars. From whose decision Peter Henry Morel entered an appeal. On the part of the applicant it is alleged : First. That he is nearest of kin to the said Henrietta B. Jones. Second. That be is principal surviving heir of the said Henrietta B. Jones; and Third.

That Zachariah Horskins, late husband of the said Henrietta Horskins, and administrator of the estate of Henrietta B. Jones, committed (in his life time) waste on the estate of the said Henrietta B. Jones. It would be, therefore, improper to grant administration to his widow, who, in all probability, will be administratrix of her husband, the said Zachariah Horskins ; and on the part of Henrietta Horskins it is contended, that, admitting she stands in equal affinity with Peter Henry Morel to the deceased, she has a preferable right to the administration, because of her greater interest arising under the will.

That she is residuary legatee under the will, of one fourth of the estate, real and personal ; that Mr. Morel has no original interest, and that, in regard to his secondary interest, in virtue of his right to a distributive share of the lapsed legacies, Mrs. Horskins standing in the same degree of affinity, her interest must be increased in an equal ratio with his, on this ground, and probably in greater from the circumstance of her being residuary legatee.

The waste, alleged to have been committed by Zachariah Horskins, in his life time, is denied ; and it is stated he made a will, and appointed an executor other than the said Henrietta Horskins. It is also contended, that administration follows the interest, and that Mrs. Horskins is entitled to preference, in consequence of her possessing the greater interest. For that our own statute directs, that the rules,, relating to distribution, shall have equal application in granting administration, and refers cases not specially provided for, to the course ofdecisions to common law. Dig. 217.

That by the law of England, if two be in equal degree of affinity, the ordinary may grant to which he pleases. 2 Tuck. Blk. 504. But this is to be understood as between applicants, whose claim rests wholly upon their affinity. For it is laid down, that administration must be granted where the estate ought legally to go. 4 Coke, 51. cited in 3 Mod. 63. Toller’s Law of Errors, 85—87.

And farther, the reason why administration is granted to the next of kin, is, the presumption that the deceased intended to prefer him, and this presumption is destroyed where there is a residuary legatee. 11 Viner, Abridged, 92. 182. et note Wood, Inst. 349. Digest, 217. 2 Tuck. Blk. 304. 4 Coke, 51. 3 Mod. 64. loll. Law of Errors, ⅜5 — 87. 11 Viner, Ab. 92. 182. et note to Wood’s Inst. 349. Price v. Parks. ISid. 280. Thomas vs: Butler. 1 Vent. 219, Cited in 3 Bac. 55. et vid. Go-dolph, 230. Harris, for Applicant. Davis and Berrien, for Respondents.

If the executor refuse or die intestate, administration is to be granted to the residuary legatee, in exclusion of the next of kin, Price vs. Parks, 1 Sid. 280. Thomas vs. Butler, 1 Vantrie, 219. cited in 3 Bacon, 55. et vid. Godolph, 230. The caveatrix and caveator, in this case appellant, claim an equal degree of affinity to Henrietta B. Jones, deceased, but Henrietta Horskins claims a preferable right, of her greater interest, for that, under the will she is residuary legatee of one quarter of the estate real and personal. The precedents cited and arguments used by her counsel demonstrate this right.

Wherefore the order made in this case, by the court of ordinary is confirmed.