#### *Thomas Petigru*vs. *Thomas Ferguson.*

Where a minor had resided several years before his death with his step-mother in Abbe-ville, *held,*that he had such a residence in Abbeville as authorised the Ordinary of that district to grant administration of his estate, although his original domicil was in Edgefield where his father lived and died, and where his guardian was domiciled.

A first grant of administration is conclusive of the right to the administration, until the grant be vacated or annulled by a direct proceeding for that purpose. It cannot be impeached collaterally; and a second grant is null until the first is vacated.

Bill by the administrator of an infant against the former guardian of the infant, who was also guardian of his brother and sole distributee, for an account of the infant’s estate. The bill contained an averment of debts, and there was, at the hearing, a *prima facie*shewing of their existence: *Held,*that the bill was well brought, for an infant, though he have a guardian, may owe debts for which he is liable; and the regular way to ascertain whether debts exist against an intestate is through the channel of an administration.

*Before*Waedlaw, Ch.; *at*Edgefield, *June,*1853.

Waedlaw, Ch. Brantly Tompkins died in Abbeville district, in September, 1850, when he lacked a few months of being twenty-one years of age. His father, surviving his mother, died in 1836, in Edgefield district, where he always resided and was domiciled. Soon after the death of the father, the defendant was appointed by the Court of Equity for Edgefield the guardian of Brantly and his younger brother Furman ; and the defendant from the date of his appointment until the present time has had his residence and domicil in the latter district. For some years after the death of his father, Brantly abided in Edgefield district, not at the home of his guardian, but with the consent of the guardian, at first with the grand parents of the ward, and afterwards at other places selected by the guardian principally with reference to convenient schools for the ward-In December, 1846, Brantly Tompkins, with consent of the guardian, went to live with his step-mother in Abbeville district, and thenceforth', for the rest of his life he was an inmate of her house, except that in 1848, for two or three months he was a pupil at the Gr sen wood 8'chool in Abbeville district, and in *3791850, was absent for about five months on a visit to relations in Mississippi. In 1847, he superintended his step-mother’s farm. In 1849, he rented and cultivated a small parcel of land, bought two horses to work it, had some horses shod, and ploughs made at plaintiff’s blacksmith shop; and in that and the following year made other contracts as one apparently mature in size and forisfamiliated, but, as an intelligent witness described him, *“*gawky and unformed in manners.” The defendant, who resided about six miles from Brantly’s step-mother, although in a different district, paid for the board of his ward at the step-mother’s, and for such other of the ward’s contracts as seemed to him as guardian to be'reasonable.

Brantly Tompkins was possessed at his death of some small articles found in Abbeville, and of a slave and about $2,000 in money in the hands of defendant. He died intestate, and his brother Furman, defendant’s ward, is the sole distributee of his estate. After ward’s death, defendant was advised, that his ward’s estate might be settled without the expense of administration.

On October 6,1851, the Ordinary of Abbeville district granted to the plaintiff, administration of the goods, chattels and credits of said intestate; and on October 21, 1851, the Ordinary of Edgfield made a similar grant to the defendant, after notice to the Ordinary of Edgefield, and to defendant of the prior grant to plaintiff.

Plaintiff, by this bill, calls upon defendant to account for the estate of intestate in def endant’s possession. Defendant in his answer insists, that inasmuch as intestate’s domicil at his death was in Edgefield, the Ordinary of Abbeville had no jurisdiction or authority concerning the administration of intestate’s estate, and consequently, that the grant of administration to the plaintiff is extrajudicial and void.

The first question, is whether domicil of an intestate in his district, is necessary to give an Ordinary jurisdiction to grant administration of the estate of an intestate who resided and died in his district. By 10 Sec. of the Ordinary’s Act of 1839, (11 Stat. 41,) *“*Wills shall be proved before the Ordinary *of*the *380district where the testator *resided,*or he having no *place of residence*within the State, in the district where the *greater part*of his estate may beand by 3 Sec. of same Act *(lb.*39) “ in case any person die intestate, the Ordinary of the district where the will of such person, had he left a will, would have been proved, shall grant administration of the goods” &c., of the intestate. Residence and domicil are not synonymous words, although the former, as the larger term, generally includes the latter. Residence implies the dwelling of a person in a place for some continuance of time, usually indefinite; and it is well applied to the abode of a domiciled inhabitant of one nation in a foreign country, as of a South-Carolinian in France. Domicil, from its etymology, implies a mansion, and is usually applied to a permanent residence, *animo manendi.*Domicil, properly, affects the national obligations of the person in question, and succession to his goods ; whereas residence is commonly a matter affecting municipal rights and regulations. Lord Alvanley commends the wisdom of Bynkershoeck in not hazarding a definition of domicil; and Phillimore, in an excellent treatise on the subject, in his second Chapter, gives many definitions attempted by publicists, and expressing preference for the attempts of American Judges, adopts substantially the definition of President Rush, that domicil is residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. Phil, on Dom. 11.1 Am. L. C. 545. If domicil and residence be synonymous, and the jurisdiction of the Abbeville Ordinary be dependent on his just determination of the question of domicil of the intestate in this case; I should dissent from his judgment on the question of domicil. One is presumed to be domiciled at the place where he is resident at the time of his death; but this presumption is rebutted by proof that he is in a state of pupilage, and that his domicil of origin is elsewhere. The domicil of an infant not emancipated is that of his parents, and if his parents be dead it is that of his guardian. He is incapable of acquiring a different domicil for himself, although his domicil ’may be changed *381with the assent of the guardian or other person having legal tuition of the infant. 1 Am. L. C. 545,562. In the present instance, there is no sufficient proof of the assent of the guardian to a change of his ward’s domicil.

In my judgment, however, it was not the purpose of the Legislature to make the just determination of domicil a prerequisite to the Ordinary’s granting administration of the estate of an intestate. Residence at the time of death is a fact easily settled by evidence ; domicil is often a most difficult question of law, and one not likely to be left to the decision of subordinate judges. That the terms *“*resided” and “ place of residence,” in the 10 Sec. of the Act of 1839, above quoted, were purposely used by the Legislature as distinctive from “ domiciled” and *“*domicil,” is made more clear by reference to the parallel section of the Act of 1789, *“*directing the manner of granting probates of wills and letters of administration,” &c., from which the posterior Act is taken in substance. The 12 Sec. of A. A. 1789 (5 Stat. 108) provides: “ That if the testator shall have a *mansion*house, or *known place of residence,*his or her will shall be proved in the Court of the county, or before the Ordinary of the district, in case there are no county Courts, where such *house is,*or *place of residence was;*but if the testator had no such place of residence, and lands are devised in the will, it shall be proved in the Court of the county, or before the Ordinary as the case may be, where the lands lie, or in one of them, where there are lands in several counties: and if the testator had no such *place of residence,*and there are *no lands devised,*then the will shall be proved either in the county where such testator *died,*or where the whole or greater part of his or her estate shall be.” The posterior Act in attempting brevity may have introduced obscurity, but it does not seem to be intended to repeal the provisions of the former Act in this respect, nor to introduce new provisions. In the former Act, the distinction between residence and domicil is more obviously made; and the Ordinary in granting probate is required to ascertain in any case only whether the *mansion,*or house, or *known place**382of testator’s *residence*be within his district: and if the testator devise no lands, and have no place of residence, the Ordinary’s inquiry is limited to the place of testator’s *death.*We must interpret the Act of 1S39, in the light of the anterior enactment; and I hold, that the Ordinary of Abbeville district had jurisdiction in this case to grant administration of the effects of an intestate, having no lands, who dwelt and died in his district.

Another view may be presented. An Ordinary, although in general his jurisdiction is limited to a particular district, is a judge, and the granting-of administration is a judicial function ; and in performing this function, as is said in *Hayes*vs. *Harley,*1 Mill, 269, he is frequently required to decide difficult ques-tionsoflaw. • Plis judgment as to a matter within his jurisdiction operates throughout the State, and until revoked or reversed, is binding on all the tribunals of the State. TheNtoievs. *Gibson and Scott,*1 N. & McO. 326, and *Starke*vs. *Woodward,*lb. 329. In *State*vs. *Mitchell,*3 Brev. 520, Tread. 703, it was decided in 1815, that an error of the Ordinary in granting administration could be corrected by appeal only, and not by *mandamus.*The appeal allowed to the Court of Common Pleas by 12 Sec. A. 1789 is amplified by 13 Sec. A. 1839 (11 Stat. 42) and affords an easy remedy to any person who may think himself aggrieved by any judgment, determination or order of the Ordinary. In the present case, the defendant had such timely notice of the judgment of the Ordinary of Abbeville as to enable him to prosecute an appeal from that judgment, tie submitted to that judgment, or rather he has chosen to run the risk of its being a nullity. Parties are not to be encourged in renewing a clamor once settled by a Court of competent jurisdiction; nor even in the re-investigation of a doubtful question of jurisdiction once adjudged by a Court of inferior jurisdiction, especially where prompt and facile remedy is afforded by appeal to higher Courts. The Ordinary of Abbeville, in granting administration to plaintiff, according to legal presumptions, adjudged all incidental questions in favor of plaintiff, such as domicil, if necessary, or residence, of intestate within the Ordinary’s district, *383and title of plaintiff as creditor, or in some other way to the administration; this judgment should not be upset collaterally, in favor of a party having an easy and direct remedy by appeal, although it may not be entirely approved as to some of the incidental points. I suppose it to be clear, that the Ordinary of Edgefield had no authority to review and reverse the judgment of his co-ordinate judge in Abbeville ; and-that the second grant of administration amounts to nothing.

It is ordered and decreed, that defendant, as late guardian of Brantly Tompkins, account for the estate in his hands belonging to said intestate, with plaintiff as administrator. And it is referred to the Commissioner of the Court to take the accounts.

The defendant appealed on the grounds :

1. That Brantly Tompkins had no such residence within the district of Abbeville as is contemplated by the 10th Section of the Act 1839: that the ordinary of that district had no authority or jurisdiction in respect to the administration of the said Tomp-kin’s estate, and that his grant of the same to the plaintiff was extra-judicial and void.

2. That Brantly Tompkins having died intestate, and the defendant being the guardian of Richard Furman Tompkins, an infant, who takes by legal succession, the entire estate of the intestate, and there being no lawful debts or charges subsisting against the same, it results, that if the defendant shall be required to pay to the plaintiff the funds of Brantly Tompkins in his custody, then the plaintiff upon the receipt thereof will be bound immediately to repay the same to the defendant, and the only effect of this whole proceeding will be to subject the defendant’s ward to heavy and most unnecessary expenses.

3. That there is no sufficient ground upon which the decree can be sustained, and the bill ought to have been dismissed with costs. •

Carroll, for appellant.

*McGowen, Mor ague,*contra.

*384The opinion of the Court was delivered by

Johnston, Ch.

Without deeming it necessary to consider at large the statutes referred to in the decree, or the construction put upon them by the Chancellor, we are of opinion that the infant intestate had, at his death, a residence in Abbeville, sufficient, within the meaning of the statute law, to confer the grant of administration upon the Ordinary of that district.

His original domicil, or residence, in Edgefield, had been broken up by the sale of the premises ; and it does not appear that he ever acquired any other in that district, as a substitute. He does not appear ever to have been domesticated with his guardian. And, although it is a principle that the domicil of origin, as a general right, continues until some new domicil, or residence, is acquired, yet we find that this infant was permitted to establish a residence at the house of his step-mother, in Ab-beville, and to retain it for several years. More than this, he was allowed to enter into pursuits of a local character, in which he was, not occasionally, but fixedly — engaged; and in the prosecution of which he died.

But if this were not so, the grant of administration by the Ordinary of Abbeville, which preceded that made by the Ordinary of Edgefield, was, as the Chancellor has properly ruled, such a judgment as carries the .right, until vacated and annulled. This judicial officer having a general cognizance of questions relating to the right of administration — and, therefore, being legally competent to determine them — must, necessarily, be clothed with authority to consider and decide the sufficiency of the evidence presented to him for establishing the facts from which the right arises. The judgment rendered by him must be conclusive of the facts necessary to sustain it, until it is reversed. It cannot be impeached collaterally : and can only be set aside by a direct proceeding.

There was, therefore, no room for the second grant of administration in a different district. A second grant is null until the first grant is recalled. The Ordinary of Edgefield could not *revoke*the letters granted by the Ordinary of Abbeville: *385and until they were revoked, he had no authority to grant other letters. The authority conferred by letters of administration is a general authority operating throughout the State. There can be but one administration. And the conferring of the office, with the authority appertaining to it, exhausts the whole subject, and leaves nothing to be done, of like kind, until the authority conferred has been revoked. It would be highly pernicious if such a thing could exist as two administrations going on at the same time. If there can be two, there can be as many as there are districts in the State. How perplexing this would be to creditors, or others having claims on the estate, or liable to claims by it; and how impossible it would be to draw all these administrations to one final result, can scarcely be Imagined.

But a point has been raised, on this appeal, which does not appear to have been suggested or argued on the circuit. We have considered it, however; and there seems to be nothing in it which should vary the decree.

It is said in the 2nd ground of appeal, that the intestate having left no lawful debts, or charges, subsisting against his estate, the administrator has no right to maintain a bill against the defendant — who is the guardian of the sole distributee — to take the assets out of his hands.

Certainly, if it appeared by the pleadings that there was no pretence of debts, as in *Thompson*vs. *Buckner,**(a)***the Court would do no such idle thing'as to decree that he who is entitled to the estate as distributee should deliver it over to the administrator who has no right, in such case, to the possession of it, except for the purpose of paying creditors. Therefore, no such bill could be sustained. But in this case, there is not only an averment of debts, but there was at the hearing a *prima facie*shewing of their existence. Surely this was sufficient. All that could be required of the administrator was to shew that there existed *claims,*which appeared to be presented in good faith. It could not be expected that the administrator should *386go further, and take upon himself the duty of the creditors, of proving the validity of their claims, — in opposition to his duty, which was not to substantiate such demands, but to offer all reasonable and legal opposition to their allowance.

But, then the case was likened to that of *Marsh*vs. *Nail**(a)**.*

The intestate died in his minority; and it was contended that he could not have contracted any debts; and, therefore, the claims presented were to be regarded as nullities. When a Court undertakes to distribute an estate, or to sanction a distribution of it which has been made — as in *Marsh*vs. *Nail,*on the ground that no debts can possibly exist against it, it does a very strong act. It is impossible to say with positive certainty that an infant has not, at his death, left debts behind him. It cannot be affirmed with certainty, that it was perfectly impossible for him, in his lifetime, to have come, at some time, into circumstances, where legal obligations might attach to him. An infant is liable for necessaries ; and if he contracts for them, he is liable under his contract. His estate may be liable for the expenses of his last illness, and for his sepulture. It is certainly liable for arrearages of taxes; and may be for other public claims. The regular way is, certainly, to ascertain whether debts exist, and their amount, through the channel of an administration. It is the best way : and departures from it are not to be encouraged — though, after considerable lapse of time, during all which no creditor has appeared to claim administration, or compel the next of kin to take it — as a means of getting payment of his demands — a departure may be tolerated, and the Court may venture, as in *Marsh*vs. *Nail,*to conclude that no debts exist. But as I have said, such a conclusion, or any course of procedure deduced from it, should bo adopted with great caution. In this case, the plaintiff has not permitted great space of time to elapse, but has proceeded in a regular way, within a short period after the intestate’s death, to give a fair opportunity to establish claims against his estate; and creditors have appeared and made regular claims. It would, under *387such circumstances, be inexcusable on the part of the Court, to shuffle the creditors out of the way, and hasten the distribution, by adopting an inflexible conclusion that there exists no possible chance of fair and legal demands.

It is said that the defendant was guardian of the intestate; and that whatever liabilities could have arisen for supplies furnished the ward, were good charges against the guardian, and not against the ward ; and consequently the estate of the latter can not be chargeable with them.

I take the law to be, that the guardian is not liable, personally, except for contracts made by himself. The ward — and of consequence the ward’s estate — is liable for his own contracts, accordingly as they are, or are not, of that character, and founded on those considerations, which the law upholds.

The ward can only bind the guardian, (as a son can only bind a father,) as any third party might, viz., as agent: though it is not doubted that a contract may be inferred against a guardian, or father, from cireumstances(a).

An infant’s contracts are not all necessarily void. Some of them only are so — mostly depending on the form of the contract. Others of them are void until confirmed — not absolutely void. Others of them are good, unless avoided — purely voidable. Whether the exemptions of infancy constitute a personal privilege, which no other person can urge after his death, it is not necessary to decide. On all the infant’s own personal contracts, the action is brought against-the infant himself, though he is to be defended by guardian(b.)

From this view of the law, it follows that claims may be established against the estate of the intestate.

It is ordered that the decree be affirmed, and the appeal dismissed.

DuNKtN, Dargan and Wardlaw, CC., concurred.

*Appeal dismissed.*

(a)

 Riley Eq. Cases. 33.

(a)

 Rich. Eq, Cases. 115.

(a)

 See Browne on Actions at Law, Chap. 4. sec. 26, page 287, and notes r, s, u, x, y.

(b.)

h)See Browne ut Supra, p. 291; and see notes d, e, f, g, h.