#### Daniel Carthey *v.*James Webb.

[-From Orange. J

if administration cannot be granted to the nearest of kin, on account of some existing incapacity, it shall be granted to the next after him, qualified to act, and the creditor be postponed, if any of them claim the administration within the time prescribed by law. There„ fore where A. died during the war between the United States and Great-Britain, leaving B. Ms next of kin in the United States, and leaving two sisters, who were aliens, in Great-Britain, B. was held to be entitled to the administration in preference to the highest creditor of A.

An alien enemy may rightfully act %s Executor or Administrator, if resident within the State, by the permission of the proper authority ¡ but not otherwise.

This was an application to the County Court of Orange for letters of administration on the estate of John Casey, deceased. This application was opposed by James Webb, on the ground of bis being the largest creditor in the state. The Court refused Carthey’s application, and be appealed. The case came on to be beard in the ¡Superior Court, when it appeared in evidence, that John Casey died intestate, in Hillsborough, about the 4th July, 1812, leaving Daniel Carthey, of Newbern, his next of kin in the United States *;*apd that he had two sisters in the kingdom of Great Britain, who were aliens, about six years before his death. It further appeared in evidence, that James Webb was the largest creditor of Casey, and had proved his debt as the act of Assembly directs.

The case was argued by Brown and Nash for the Plaintiff, and by Norwood for the Defendant.

Tatjok, Cljief Justice,

delivered the opinion of the Court:

As the sisters of the intestate, who arc his nearest of kin, are resident beyond sea, and subjects of a hostile four,try, they are certainly disqualified from administer-*269iing on his effects. This principle may be fairly extracted from the numerous cases on this point, which, how- . ever, are so much in conduct, as not to yield any satisfactory information on the question, whether an alien enemy may bring an action as administrator. The two .cases in *Cro. JSliz.*142 & 683, are in direct opposition to .each other. The true rule probably is, that even an alien enemy may rightfully act as executor or administrator, if resident within the state, by the permission of the proper'authority $ but without such authorised residence, he must be subject to all the incapacities which appertain to his civil condition. For this reason it is wholly unnecessary to go into the inquiry, whether the sisters of the intestate be aliens or not; for taking them to be so, it does not weaken the claim of the Plaintiff.

Considering the act of 17-15, in reference to the provision made on the same subject, by the two statutes of 31 *Ed.*3, and 22 *Hen.*8, it would seem, to be exercising too great a latitude of construction to pronounce, that because the nearest.of kin labor under an impediment, all the rest of ki.n shall be excluded, and the claim of a Creditor be preferred to, those for whose primary benefit the statutes were enacted. .On the contrary the true, meaning of those laws seems to be, that if administration cannot be granted to the nearest of kin, ou account of Some existing, incapacity, it shall be granted to the next after him, qualified to act, and the creditor be postponed, if any of them claim the administration within the time prescribed by law. Let administration be granted to the Plaintiff.