Bryan v. Rooks

25 Ga. 622

• Court: Supreme Court of Georgia
• Decided: June 15, 1858
• Status: Published

Opinion

By the Court.

McDonald J.

delivering the opinion.

We affirm the judgment of the Court below. The legacy, under her father’s will, had vested in Mrs. Adams before her death. Her husband having survived her, was entitled to administration on her estate, real and personal, and on her rights and credits; and as such administrator, might have recovered and enjoyed them, and they would not have been subject to distribution. Cobb, 294. But the husband having neither reduced his wife’s property to possession during her life, nor administered on her estate after her death, it is now insisted that her estate goes to her next of kin, and that complainant, as her administrator, cannot recover; that the estate has already been distributed according to law. The statute declares that the husband shall hold it, and that it shall not be subject to distribution. It is not, therefore, distributable amongst the wife’s next of kin. It must vest in the husband, and why are not his representatives entitled to it ? Squib vs. Wyn, 1 Peere Williams, 378; Cart vs. Rees, cited in this case; Elliot vs. Collier, 3 Atkyns, 526; Stewart vs. Stewart, 7th John. Ch.Rep., 229. The right of administration following the right of estate, the husband’s next of kin are entitled to the administration. But if any one else administer, even if it be the next of kin of the wife, he shall hold it in trust for the next of kin of the husband or his legatees.

Judgment affirmed.