#### *Middleton W. Cobb vs. Wm. Brown et al.*

1. A testator amongst other things directed that a specific sum of money should be raised by a sale of a portion of his estate, and bequeathed it to certain persons in trust, for them or the survivor of them to pul the fund at interest, and apply the interest to the support of one of his daughters during her life, and after her death, to he equally divided among her brothers and sisters. The acting trustee having died, defendant was appointed in his stead, and continued to act until the death of the daughter thus provided for, in 1842. Testator left several children at the time of his death, one of whom, a son, died some time after the decease of testator, intestate and a minor, but before the death of the daughter for whom defendant acted as trustee, no administration being taken out on his estate. Complainant intermarried with a daughter of testator in 1833, who died in 1835, leaving an infant son who survived his mother a few days. Complainant claimed a distributive share of the trust fund, as sole heir of his deceased son, who was entitled to a share in right of his deceased mother, as well as her portion of the share in said fund of the deceased brother.

2. By the terms of testator’s will, the remainder being given to the brothers and sisters of the daughter for whose benefit the trust was created, at the expiration of her life, without any contingency, a distributive share of it vested in complainant’s wife; consequently by her death and that of her only child, her right was transmitted to complainant.

Administration on the estate of the child *held*unnecessary. But as it did not appear from the pleadings whether or not complainant’s wife was a minor at the time of her marriage, and as she may have been an adult, having contracted debts before her marriage, from which the husband was exonerated by her death, and which survived against her representative, *held*that administration on her estate was necessary.

4. The share of the deceased brother, not having been distributed, but still remaining in the hands of the trustee, complainant held entitled to a distributive share of this share in the trust fund.

5. The Statute of Limitations held not to dispense with the necessity of administration on the estate of complainant’s wife, as her debts, if any, contracted before her marriage, might not have been parol debts, or been due over four years.

6. The exception allowed in cases where the intestate dies in infancy, not to be extended, because even infants may be liable for necessaries.

George Leake executed his will 23d Oct. 1819, and shortly thereafter departed this life; among other things, *565the said testator provided that the sura of $1500 should be raised by a sale of a portion of his estate, and bequeathed the same to Jeremiah Leake, Samuel Young and Abner Young, in trust to them, or the survivor of them, to put the said $1500 to interest, and apply the interest arising therefrom, to the support of his daughter, Anna Leake, during her life, and after her death to be equally divided betvven her brothers and sisters. Abner Young acted as trustee for the said Anna, and after his death, the defendant, Wm. Brown, was substituted in his place, by order of the Court of Equity, in 1834, and has had the management of said fund ever since, up to the death of the said Anna, in 1842. The said testator left a widow and the following children surviving him, to wit: — Samuel, Jinny, wife of the said Wm. Brown, Wm. Leake, James Leake, (who died after his father, while a minor, intestate, and no administration was ever taken out on his estate,) Margaret Leake, Alzira, who intermarried with Adam Bradock, and Malinda, who intermarried with the complainant in 1833, and died in 1835, leaving James W. Cobb, the only issue of the marriage, wdio was born 15th January, 1835, and died 26th January, 1835, having survived his mother only a few days. The complainant called on the said trustee, since the death of the said Anna, for his distributive share of said trust fund, as the sole heir of his deceased son, James W. Cobb, who was entitled to his said deceased mother’s share thereof, as well as her portion of the said James Leake’s share of the said $1500; with which request the said Brown refused to comply.

The complainant claimed in his bill, one-seventh part of said fund, the share of bis wife, and one-seventh part of James Leake’s share of the same, both in the character of sole heir to his son. The bill was filed in 1843. It should also be stated, that James Leake died before Mrs. Cobb.

The case was heard by his Honor, Chancellor Johnston, Laurens, June and July Term, 1843.

Johnston, Ch. The case is very confusedly stated in the pleadings, but may be gathered from them; and I refer *566to them for the facts and circumstances, and the points raised in this suit.

It appears that the share of James Leake has been already distributed; and as this bill does not allege any error in the distribution, and particularly as it does not specify the error, if any existed, nor call for a review and correction of it, the distribution will not be disturbed. The present acting representative of the estate is not responsible for the share of James, which never came to his hands as such representative; and if there has been any improper administration of it, the former representative, in whose hands it was, is responsible for that.

The principal question in this case is, whether a distributive share of the remainder created in the fund given to Anna for life, vested in the wife of the plaintiff; and I think there is no reason to doubt it. This remainder is given in plain terms, to the brothers and sisters of Anna, at the expiration of her life, without any contingency. It follows from this, that by the death of plaintiff’s wife, and that of their only child who survived her, the wife’s right has been transmitted to the plaintiff.

It has been suggested that administration to the wife and child is necessary to entitle the plaintiff to recover this share. The point, with respect to the necessity of such administration upon the child’s estate, has been decided. It has been held, that administration in such a case is unnecessary.

With regard to administration to the wife, I am of a different opinion. If it appeared from the pleadings that she w7as married to the plaintiff before attaining majority, then, I suppose, in conformity to the decision of which I have spoken, it might be concluded that her minority should fepel the presumption of any liability for debts on his part, up to the time of her marriage, and that her eover-tuie would rebut it afterwards. But for any thing that appears in the case, she may have been an adult, and may have contracted debts before her marriage, from which her husband is now exonerated by her death, and which survive against her representative.

It is ordered that leave be given to the plaintiff to take *567out letters of administration to his deceased wife, or to make a party of any other person who may so administer; and upon this being done, and the pleadings amended by suggesting the fact, it is decreed that the defendant, Brown, come to an account before the commissioner with said administrator, according to the principles of the foregoing-opinion. As the said defendant could not safely pay over the money without this litigation, and as the other parties have been made parties *pro*forma, and have created no costs or expense, it is further decreed that the costs of this suit be paid out of the said distributive share of plaintiff’s wife, and deducted out of the recovery.

The complainant appealed from so much of the Chancellor’s decree, as refuses to allow him any portion of the said James Leake’s share of the $1500; and also from that part of said decree, which requires administration to be taken out on Mrs. Cobb’s estate, and moved to reverse the same in those particulars, on the following grounds.

1. Because the complainant is entitled, as sole heir of his said son, to one-seventh part of James Leake’s share of the $1500.

2. Because no administration is necessary on the estate of Mrs. Cobb.

Sullivan, for the appellant.

Irby, contra.

*Curia, per*Johnston, Ch.

It appears, by the admission endorsed on the brief, that the share oí James Leake, in the $1500, has not been distributed, but is still in the hands of the trustee. This error in the circuit decree must, therefore, be corrected. The decree proceeds upon a principle that must entitle the plaintiff to a distributive share of this share, and the same will be taken into the account heretofore ordered. But with the correction of this error, the court must stop. We are of opinion that it was necessary that administration should be taken out *568on Mrs. Cobb’s estate; and for the reasons stated in the decree.

It is said that no administration can be necessary, because all the debts contracted by Mrs. Cobb, before marriage, must be now barred by the statute of limitations. If the statute is a ground for dispensing with administration, it can operate no further than the statute applies; and who is able to say that all the debts, if any, contracted by Mrs. Cobb before her marriage, are parol debts, or that all of tjiem have been due over four years '?

The regular course is, to take out administration. An exception has been allowed, in cases where the intestate died in infancy. This was going, perhaps, too far; because even infants may be liable for necessaries. It is not deemed proper to extend the exception.

It is ordered that the circuit decree be modified according to this opinion; and that the cause be remanded to the Circuit Court. The former order, as to costs, to stand, as the judgment of this court.

Johnson and Dunkin, Chancellors, concurred.