Judge of Probate v. Chamberlain

Richardson, C. J. At the common law, administration of the estate of a person dying intestate, belonged of right to no particular person, but it was in the discretion of the ordinary to grant administration to whom lie saw7 fit. But the statute of the 21 II. VIII. gave the administration to the next of kin ; and when there happened to be more than one of equal akin, he, who first took administration, was entitled to the surplus of the personal estate, after paying the debts. The law7 thus remained, until, by the statute of 22 and 23 Car. II. cap. 10, administrators w7ere made liable to make a distribution. But that statute made no express mention of a husband’s administering to his wife ; and as no person could be in equal degree to the wife with the husband, he was held not to be within the act. And the statute of 29 Car. II. cap. 3, sec. 25, expressly declared, that the husband might demand administration of his deceased wife’s personal estate, and recover and enjoy the same, as he might have done before the statute of the 22 and 23 Car. II. cap. 10. Since that time, it seems never to have been doubted, that a husband' may administer upon his deceased wife’s estate, and that he is entitled, for his own benefit, to all her chattels real, things in action, trusts, and every other species of personal property, whether actually vested ia her and reduced to posses» [130] sion, or contingent, or recoverable only by action. And ⅛ case the husband dies before he administers, the right to ad~ minister, and to the property, goes to the heirs of the husband. Coke Litt. 351, note.—6 John. 112, Whitaker vs. Whitaker—4 Coke 51, Ognel’s case.—1 Wilson 168. Elliot vs. Collier.—Roll’s Ab. 345.—Comyn’s Digest, “ Baron & Feme” E. 3.—Orphan’s legacy 248—Bacon’s Ab. “ Baron & Feme” C.—Lovelass on Wills 2.—Wentworth 383.—P. Williams 380.—Cro. Car. 106, Johns vs. Rowe. We are therefore of opinion, that the husband otRhoda i* entitled to the legacy given her by her father.