Washington sentinel. [volume] (Washington [D.C.]) 1853-1855, 1854-10-29

N' oHttiHSij VI
2. That letters might be granted to them
with the consent Of j. c. Gardiner, who was
first entitled under the 25s sub chap. g.; or
3. To themselves as the only creditors ca.
pable of the Office, and applying therefor.
1. Is j. c. Gardiner entitled to administer?
The intestate left no widow, child, grand
child, or father. The 18TH sub chap. 5, is
imperative. The brother shall be preferred,
unless he labors under some disability emu
merated in sub chap. 4, 81. 1t is said he was
a fugitive from justice. This does not dis
qualify The statute defines the disability
the mode of proof-the proceedings to be had
~ and 3.
1t is said he was an alien. The only proof
given is that he was born in Havana-when
his parents were sojourning there for the health
of his mother-and his father and mother were
both at that time citizens Of the United States.
There was no such allegation in the Orphans
Court, no notice or process against him--no
decision by the judge. Sub CHI. 4, az, pro-
vides that no such question shall be tried with
out notice.
The only evidence offered is the indictment
against him in the criminal court 1t is not
admissible. ! General Ev. : 537.
1t is said there was no written power of at
torney from him to Messrs Bradley and Car
Isle. None was required to be produced. They
have it, and are ready to produce it. 1t was
not necessary. They are attorneys and coun-
sellers Of all courts in this district, and written
powers are never required
But had the District Attorney any such pow
err? 1t was not in the regular course of his
office to apply for administration. Stat. at
large, 90.
1t IS said if not convicted of crime, J. C..
Gardiner was charged with crime in reference
to this very estate, had fed from justice, and
was unfit.
The Orphans Court can exercise no power
not expressly given by this or some other sta
tute. See sub Oh. Is, 20.
Besides, the statute and the late act of Con-
gress enlarging the powers of the Orphans
Court, give ample power to protect the fund by
means of the bond.
John c. Gardiner was first entitled
ii. But suppose some underlined power, and
lurking discretion in the court, and the circum-
stances induced it to refuse his application.
BY the 18th g. sub ch. 5, Bradley and Car
Isle are entitled to administer, with the consent
Of j. c. Gardiner, WHO'S first entitled, whether
they are creditors or not.
There being moral, but not legal objections
to j. c. Gardiner, and he being first entitled
consents to the appointment of two persons to
whom there can be no objection. He is inter
ested in it. May" in that case is to be read
"musr or "shalr' be granted. 1t is impera-
tive. Mason L Pearson, 9 How, 269-6O.
There are four claimants: lst, The next Of
kin; I'd. Bradley and Carlisle by his consent ;
Sd. The United States, as the largest creditor;
4th. Bradley and Carlisle as creditors.
The largest creditor can only take where
there is no next of kin applying-Sub Oh. 5,
222.
Here is the next Of kin applying for himself,
and, in case Of difficulty, conserving to the
appointment of two others.
BY this means all the terms and objects of
the law are satisfied. In any other view they
are nullifed.
III. But suppose the claim Of j. c. Card.
ner out Of the way-either for himself, or for
those applying with his consent, how can the
United States be appointed
]. They ought not because the very fact of
their being creditors at all is now the subject
Of litigation. 2. Eccl l24, 100, Z, Oh. 10.
1t would give them an undue advantage. And
in point Of fact in this very case, the answer
put in by Mr.. Casey to the bill in equity, shows
that he was appointed on Saturday, and fled
that answer on Monday, in which he admits
his entire ignorance Of the case, yet sets it
down for hearing.
2. The United States cannot take letters of
administration, either directly or through their
officers.
They are limited, constitutional, derived
government, sovereign only for the purposes
for which they we're created.
They can exercise no power, assume no
character, or Office, perform no function not
expressly given or necessary to the exercise of
those powers given to them expressly.
Beyond this they are as feeble as the Corpo
ration Of Washington.
Their sovereignty is limited-inferior TO that
Of each separate State.
They have no faculty given by which they
can administer on estates; it is not necessary
10 any power granted.
3. The whole spirit and meaning, and the
English language Of the testamentary act, re-
quire personal trust, convenience, a be-
ing, morally as well as legally responsible It
requires an oath. The persons spoken Of in
Sub Oh. 4, sec. |, are moral and responsible
agents.
But it is said there are laws in which the
term persons has been held TO include corpora.
tons, and who could act by their officers, they
taking the requisite oatbs All such cases ara