David Hoffman vs. Peter Gold, 8 G. & J. 79

Chambees, Judge, delivered the opinion of the court. The only question brought before this court by the record, is, whether the Orphans’ court under the circumstances of this cause, should have passed the decree ordering letters to be delivered to the appellee. In the view we have taken of the cause, it will be entirely unnecessary to decide upon the right of The Charitable Marine Society, to be considered as sole distributee, but that right may be assumed, to give the utmost effect to the appellee’s argument. It is contended, that the appellee is entitled to letters as matter of right.

That the act of 1807, ch. 123, gives the estate of the deceased to the society. That by the policy of the testamentary system, as adopted and declared by this court, the right of administration should follow the right to the estate, and therefore the appellee is entitled of right, as the appointee and agent of the society. We cannot admit the conclusion. The testamentary system admits no power of delegation in any person entitled, and if it cannot be exercised by the nearest of kin, who is most favoured, i'n this respect, it will be difficult to sustain a claim for such a power by this corporation.

It is said however, that the act of 1819, ch. 187, expressly confers the right of administration upon ah officer of the society appointed for that purpose, and that the object and language of that act, will justify its application to a ease originating before its passage. There are no words it that act giving it in terms a retrospective operation-; there is nothing in the nature of its enactments to demand it, nor are the interests of the society, or the security of the claim dependent upon such a construction.

On the contrary, the act professes to provide a rule for cases, in which the death of the party' should thereafter occur, and by considering it entirely prospective, its letter is gratified; the established rule of construction obeyéd, and the society for any demand it may have, can resort to the ample security — the administration bond ; which the Orphans’ court is bound to exact in every case, for the very purpose of protecting both creditors and distributees. We do not think therefore, that by any positivé provision, or any constructive principle of law, the appellee can demand letters as matter of right.

Neither was it a case for the discretion of the" court. The testamentary laws have made provision for every case, to insure an administration with promptness. If the party died leaving very near relations, they are to' be summoned if within the State, or an effort is to be made to summon them; more remote relations and creditors next have, the preference, if they apply. In the absence of such application, the court can exercise a discre-lion, and in doing so, should undoubtedly as a general rule, pursue the policy of the system and commit administration to the person having the greatest interest in the estate.

The peculiar language of the paper filed in the Orphans’ court by the appellant, makes it doubtful whether he intended it as an application for letters. It would rather seem to be a caveat against the grant of letters to the appellee, upon the grounds distinctly stated in the fifth of his reasons, and which relate to the title of the fund claimed by the appellee as the agent of the society. The title to that fund was not a proper subject for that court, in that form, at that time.

Conceding that the case is within the act of 1807, so as to entitle the society to the estate ultimately, yet as the death of the party occurred before 1819, the creditor, “if he applied,” was entitled to letters in preference to an agent or officer of the society. There would seem however to have been an error in this respect, common to the court and to both the parties. Letters were claimed by the officer and agent of the society, upon the ground of their title to the estate of the deceased.

The application was resisted upon the ground that the society had no legal claim to the fund in the hands of the appellant, and the decree of the court, although it does not in terms declare the title of the society to be the reason why letters are ordered to be granted to the appellee, does allege expressly, that letters ought to be granted to some officer of the society, and orders them to be issued to the appellee, because he is admitted to be one of its officers.

This erroneous assumption may account for the fact, that there is no proof given to shew, that the appellant is a creditor, although it is manifest from the statement filed by him in the Orphans’ court, that he must have expended large sums of money, and much time and labour in establishing the claims of the deceased, the proceeds of which claims, constitute the funds in his hands.

But th.e nature of the appellant’s claim upon these funds, or the trust in Virtue of which he holds them, cannot affect the question now before us., This court Cannot know, nor can the Orphans’ court, whether there be other property or effects of the deceased, nor can any litigated question affecting the right to these funds be determined in this mode.

If the appellant shall insist on his right to letters as a creditor, he will not lose the opportunity to protect the rights of property, in, or over this fund, and if failing to apply or to prove himself a creditor, letters shall be granted to the appellee, the question of property will still be open to both parties, and all the rights of the appellant may be defended without prejudice from the act of the court granting letters. The case's so nearly resemble each other, that we have, deemed it unnecessary to remark' on either, separately.

The most material point of distinction which was taken in. the argument,- was in relation to Clement Oakes, who is proved to be a coloured man, and in regard to whom, it is thence urged that his colour is presumptive evidence .of his being a slave.

Whatever might be said, if the issue was a direct one, as to his slavery or freedom, upon which we mean not to express an.opinion, we think that the fact of his engaging in the voyage as a sailor, the absence of any claim by' an owner, and the recovery of wages in-his name stated by the petition, and not denied by the caveat, are facts sufficient to repel that presumption, so far as to justify an administration to be had of his effects; considering that the rights of his master or owner may be enforced, if any such rights exist against .the administrator.' Believing as we do, that the death of the parties is sufficiently established, we shall remand the case, with directions to the Orphans’ court to grant letters to 'the appellant, if he shall apply for the same and prove himself a creditor — otherwise to grant letters at their discretion.

Decree of the Orphans’ court reversed with costs, and record remanded accordingly. DECREE REVERSED.