Ellmaker's Estate

The opinion of the Court was delivered by Rogers, J.

—An administrator, pendente lite, is an officer of the court, whose duty is limited to filing an inventory, taking care of the assets, and collecting and paying debts. His authority does not extend to payment of the legacies or making distribution of the estate. Commonwealth v. Mateer, 16 Serg. & Rawle 416 ; Adam v. Shaw, 1 Schoales & Lefroy’s Rep. 254. When the suit is ended, an administrator pendente lite must pay over all that he has received in his character of administrator, to the persons pronounced by the court to be entitled ; and from that time his functions are completely at an end, and the *37 court is bound to take care that he discharges the duty committed to him, so far as that he deliver over the assets to the rightful administrator. When, therefore, the will in question was established, the right to the personal estate immediately vested in the executors; and on the death of one and the renunciation of the other, it became the duty of the register to appoint an administrator to complete the administration of the estate, by collecting the remaining assets, if any, paying legacies, and making distribution of the residue among the widow and next of kin.

But it is contended, that even if the appointment of an administrator was necessary or expedient, yet Jacob Swartzwalter ought to have been appointed, and not Davis Clemson. The appointment of Swartzwalter is claimed as a right, under the twenty-second section of the act of the 15th of March 1832. Now, I cannot perceive, the right of Swartzwalter. He is not of consanguinity with Ellmaker, and yet he claims the administration for himself, without even joining his wife in the administration. It is laid down in Finer 84, tit. Executors, JVb. 7, on an authority, that when the wife is next of kin to an intestate, the husband shall not be joined in the administration with her. But it is further said, that when the wife is entitled, and she refuses to take the administration in her own name, the constant practice is to admit the husband. Vide Vanthunen v. Vanthunen, 11 Viner 84, marginal note, Gibb. 203 ; and in Allen 36, it is ruled, that if administration be granted to the husband and the wife, only during coverture, perhaps it might be good. 12 Fin. 84. And this is said to be necessary; for otherwise, if he should survive her, he would be administrator, contrary to the meaning of the act. Toll. Executors 64. And this is the utmost extent of the authorities; for no case can be produced which compels the ordinary to commit the administration to the husband when his wife is next of kin. But the objections to the appointment of Swartzwalter, conceding the right on the ground of expediency, are insurmountable. He stands as a litigant party, and the court have constantly declined putting a person so situated in the possession of the property, by granting administration to him pending suit; always granting it, when requisite, to a nominee presumed, as in the case at bar, to be indifferent between the contending parties. And here it must be remarked, that a doubt has been expressed as to the correctness of the latter branch of the proposition ; but I can perce.ive no objection to the principle, that the register is bound to respect the nomination of the next of kin, or persons entitled to the administration. And so far as the authorities go, it is in affirmance of the right to nominate the administrator; for in Ritchie v. M’Ausler, 1 Hayw. 220 , it is decided, that letters of administration ought to be granted to the appointee of the next of kin, if abroad. And for a like reason, the register’s court, in this case, were right in respecting the nomination of the next of kin, to whom no legal objections could be made. But again, there is reason to believe that the appellant has attempted to overreach the heirs, *38 by trumping up a false account against the estate. The least taint of fraud is a conclusive objection. It works a legal incompetency to perform the duties of the office; an office of such trust and confidence, as should, under no circumstances, be committed to a person wanting in good faith, and in whom confidence cannot be reposed.

The act of 1832 ha3 relation to two classes of cases: first, to the appointment of an administrator, where the decedent died intestate; and secondly, to the appointment of a limited and special administrator. The act gives the register jurisdiction to grant letters of administration wherever they are by law necessary. The same power was exercised by the register under the equitable construction of the statutes of the 31 Edu>.- 3, and the 21 Henry 8, which were in force in this state; for although the appointment of a special administrator is not within the letter of the statutes, yet it falls within the spirit and intendment. The act of 1832 provides, “ that wherever letters of administration are by law necessary, the register having jurisdiction, shall grant them in such form as the case shall require, to the widow, if any, of the decedent, or to such of his relations or kindred as by law may be entitled to the residue of his personal estate, or to a share or shares therein, after payment of his debts; or he may join with the widow in the administration, such relation or kindred, or such one or more of them, as he shall judge will best administer the estate; preferring always of those entitled, such as are of the nearest degree of consanguinity with the decedent; and also, preferring males to females; and in case of the refusal or incompetency of any such person, to one or more of the principal creditors of the decedent applying therefor, or to any fit person at his discretion; provided, that if such decedent were a married woman, her husband shall be entitled to the administration, in preference to all other persons ; and provided further, that in all cases of an administration with a will annexed, where there is a general residue of the estate bequeathed, the right to administer shall belong to those having the right to such residue ; and the administration, in such case, shall be granted by the register to such one or more of them as he shall judge wilí best administer the estate.” . The act has made very little alteration in the law, as before understood; for in general, limited and special administration is granted in exclusion of the next of kin ; because, in that case, the next of kin have no interest in the property. Letters of administration have been granted to natural children, being residuary legatees, instead of the widow. Govanne v. Govanne, 1 Harr, & M'Henry 346; 3 Bac. Ab. 53; Toll. Executors 70. The right to administration is put expressly on the ground of interest, on the reasonable presumption that the person most interested to increase the estate is most competent to administer. When a will is made, and it becomes necessary to appoint an administrator cum.testamento annexo, the widow and next of kin are excluded from the right of administration only when the testator disposes of his whole estate. And this distinction between a partial *39 intestacy, and a disposition of the whole estate, is clearly taken. Thus, when an executor dies intestate, administration shall be grant, ed to the residuary legatee of the first testator. Ventris 316. So, A bequeathed several legacies in money to several persons, and after all, the residue of my movable goods and chattels to B, his wife, and makes her executrix, and having divers bond debts due to him, dies; B dies the same day, before probate of the will; administration of the goods of A, cum testamento annexo, was granted to C, next of kin of B; administration to C was revoked by delegates, and granted to D, the next of kin of A, cum testamento annexo, fyc.; because, by the devise of all my movable goods and chattels, debts, which arejura, were not devised, therefore administration shall be granted to the next friends of A. But if all the goods, chattels and debts were devised, and no residue, then otherwise. Jenk. 246, pi. 40. So if A devises all his goods to B, and makes C his executor, A dies, C dies intestate ; the administration of the goods of A shall not be committed to the wife or next of blood of A, but to B. Vin. Jib. tit. Executors 89, Letter K., Mo. 16.

It has been held under the statutes of 31 Edw. 3 , and 21 Henry 8, that all temporary administrators are equally out of the statutes, and in such administrations the ordinary is not bound to grant them to the next of kin. 2 P. Wms 581; Bryers v. Goddard, Heb. 250; Thomas v. Buller, 1 Vent. 219. Nor can I believe that the legislature, in the act of 1832, intended to restrict, in this particular, the right of election which the register had under these statutes. In many cases, for obvious reasons, it would be improper, where the will was in contest, to appoint the next of kin.

Decree affirmed.