Opinion
(1793.)
Gulielm Tumplin, being possessed of divers chattels, died intestate, and administration was committed to Mayow, who was his maternal uncle; afterwards, Thomas Tumplin endeavored to obtain a revocation of the administration in the arches, but it was there confirmed. Afterwards, he appealed to the King in Chancery, who referred it to the Commissioners Delegates; and the reason which Serj. Ashley gave to obtain a prohibition was: that if the ordinary commits administration to one who is not of kin to the intestate, a prohibition ought to be granted, according to the statute 31 E., 3, 11, p. 399, which ordains that administration shall be granted to the lawful friends of the intestate: *If the ordinary grant administration to any other, as persons outlawed or attainted, who are not legales, a prohibition lies; otherwise, there would be no remedy. The statute 21 H., 8, 5, p. 185, does not differ from the other, except in the penalty of £ 10 to which it inflicts. Duke of Suffolk's case, 5 E., 6. Administration may be granted to one of the half-blood, but if one of the whole-blood comes, he shall have a prohibition. 680 Mont. 21 Jac.; a prohibition was granted on the 21 H., 8, on privity of blood, and it depended on a demurrer. But the matter was compromised.
Noy, e contra. Mayow was charged before the Delegates, that he administered falsely and had suppressed a will, and in this case the ordinary is a competent judge, and the statute does not say that the administration shall be granted to the next of blood, otherwise it shall be void; but that it shall be granted under a penalty. On the 31 E., 3, no prohibition was yet moved, because it is a law which directs the ordinaries. And the 21 H., 8, adds a penalty. The ordinaries act judicially, and as the statute is in the affirmative and not in the negative, and under a penalty, they are competent judges, and a prohibition does not lie. When one is a judge at common law, and a statute comes in the affirmative, it does not take away the cognizance. At common law the ordinary might commit the administration, before 31 E., 3, which is only in affirmance of the common law. It is left to be judged by the ordinary whether one be a fit person to administer. As Mayow obtained administration surreptitiously, endeavoring to suppress a will, and no law takes cognizance of the administration of the ecclesiastical judges, I pray that a prohibition may be denied.
You have had administration granted to you, and the other party, J. F., appeals because, he says, you suppress a will; and the matter remains undiscussed, and perhaps you are a proper person to be administrator or executor here. If the eldest son ousts his mother at the time of the death of his ancestor, and the youngest son enter, he is not accounted a disseizor, for the law presumes that he preserves the possession for his brother. But if, when the eldest brother returns, he keeps possession, the law will not have so good an opinion of him, and he is a disseizor. No prohibition was granted. Palm., 416; Bulst., 314.