4 Munf. 231 | Va. | 1814
the following opinion of this court was delivered by
In the case of Cutchin v. Wilkinson, Willis Wilkinson having died intestate, leaving a widow and three children, and these children having also died, infants and intestate, in the lifetime of their mother, that mother administered upon the estate of her husband, and died leaving a will, in which she appointed executors. On her death, a contest arose, for the administration de bonis non of his estate, between the brother of Willis Wilkinson, and the brother of his widow. To this contest her executors were no parties. In that case, although is was objected that the estate of Willis Wilkinson had not vested absolutely in the widow, but had only vested in her as administratrix of the husband for the payment of his debts, the objection was overruled by this court ; the property was considered as her’s, subject, however, to the debts of her husband; and it was consequently held, that his brother, being in no event entitled to the property, was not entitled to the administration. The court, (not deciding the ease as between Cut chin, the brother of the widow, and her executors, but considering the case as if there had been no such executors,) granted the administration to Cutchin : they granted it expressly upon the principle, that the person entitled to the estate was entitled to the administration also.
That case, admitting the husband in the case before us to be as much entitled to the estate of his wife, as Mrs. Wilkinson was to that of her husband, is a direct authority against the pretensions of Mrs. Colgin, considered in her character of next of kin to her mother. But there is another character, which (for any thing appearing in this record,) she may possibly occupy; and that is as a distributee of the husband, under the last sentence of the 14th section of the act of descents ; and the only question, now open for
The principles of that case, however, go the full length of deciding the present controversy. If, in that case, the pretensions of Mr. Wilkinson, the brother of Willis Wilkinson, were reprobated, on the ground that he was not entitled to distribution of the estate in controversy, that principle equally excludes Mrs. Colgin, considered in the character of a representative of Mr. Drinkard, if the interests in question were vested in him, and have passed from her by his will. In that event, she can by no possibility be entitled to distribution of the estate in question, nor, consequently, have any ground of claim to the administration of it. In that case, she ceases to be a person designated by the act. She is neither entitled to the distribution of it considered as her mother’s property, nor as his : not the former, for it vested in the husband by the marriage ; nor of the latter, because she is excluded therefrom by the will. The case of Cutchin v. Wilkinson decided, as aforesaid, that the unadministered property of Willis Wilkinson had passed to the wife, and became her property, subject, however, to the payment of her husband’s debts. This is emphatically the case of Mr. Drinkard’s property, in the case before us. That property vested in her husband, by the marriage, and, as he survived her, even her. choses in acHon, not reduced into possession in her lifetime, became his property, liven those interests which form the proper object of the administration de bonis non of the wife, are distributable to his next of kin, and not to her’s, and pass by his will. The cases of Squib v. Wyn, 1 P. Wms. 378, and Cart v. Rees, (ibid, 381.,)
On general principles it may be asked, why his executor should riot manage this, as well as the other, parts of his estate ? He is deputed by the testator to administer his personal estate, this part also included : the whole of that estate passes to him by his nomination as executor, and he formerly was entitled to the residuum;
The force of this reasoning, in favour of the claim of the' executor, is strengthened by there being, in fact, no cases of .contests between him and the residuary legatee. None such have been produced, although the case must have often occurred.
While there are no such contests between the parties last mentioned, neither are there any between those who, but
Upon the whole, as the appellees are cut out of their right, as representing the wife, by the decision in the case of Cutchin v. Wilkinson, and can in no possible event be entitled to distribution of the husband’s estate, there being a will, which, also, is not shewn to be in their favour; as it is
See also Elliott v. Collier, 3 Atk. 52 7; and 1 Bac, abr. 480.
Shelton v Shelton, 1 Wash. 53, 69,
3 Baf. 19. 11\ Wms. 38?
Hargrave'.law tracts, 472.