6 N.C. 268 | N.C. | 1813
As the sisters of the intestate, who are his nearest of kin, are resident beyond seas, and subjects of a hostile country, they are certainly disqualified from administering on his effects. This principle may be fairly (269) extracted from the numerous cases on this point, which, however, are so much in conflict as not to yield any satisfactory information on the question whether an alien enemy may bring an action as administrator. The two cases in Cro. Eliz., 142 and 683, are in direct opposition to each other. The true rule probably is that even an alien enemy may rightfully act as executor or administrator if resident within the State, by the permission of the proper authority; but without such authorized residence he must be subject to all the incapacities which *192 appertain to his civil condition. For this reason it is wholly unnecessary to go into the inquiry whether the sisters of the intestate be aliens or not; for, taking them to be so, it does not weaken the claim of the plaintiff.
Considering the act of 1715 in reference to the provision made on the same subject by the two statutes of 31 Ed. III., and 22 Hen. VIII., it would seem to be exercising too great a latitude of construction to pronounce that because the nearest of kin labor under an impediment, all the rest of kin shall be excluded, and the claim of a creditor be preferred to those for whose primary benefit the statutes were enacted. On the contrary, the true meaning of those laws seems to be that if administration cannot be granted to the nearest of kin, on account of some existing incapacity, it shall be granted to the next after him, qualified to act, and the creditor be postponed, if any of them claim the administration within the time prescribed by law. Let administration be granted to the plaintiff.
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