Bryan, ex'or., &c., vs. Rooks, adm'r., &c.

ticular age, which he had attained, he should go to and live with Robert Rives and his wife. The Court remanded the child to the custody of Rives, and that is the decision which is excepted to.

The residence of the child, however occasioned, was, at the time of the appointment of the guardian, in the county of Lee; and the Ordinary of Randolph had no jurisdiction. of the case. Cobb's Digest, 286. The letters of guardianship, therefore, conferred no authority on Rives. A majority of this Court is of opinion that Dudley Sneed, in consequence of his established relation of parent to the child, had a right to the custody of his person; even if the letters of guardianship had been good and valid. It is the opinion of this Court that the presiding Judge in the Court below ought to have ordered the child into the custody of Dudley Sneed.

Judgment reversed.

WM. BRYAN, ex'or., &c., plaintiff in error, vs. JAMES A. Rooks, adm'r., &c., defendant in error.

A wife being entitled to a legacy, dies before the husband reduces it to possession, and the husband who survives his wife twelve months, dies without administering on her estate. A stranger administers on the wife's estate. Held, that the wife's estate vested in her husband, and that when her adminis trator receives it, he shall hold it in trust for the next of kin of the husband or his legatees.

In Equity, from Twiggs county. Tried before Judge LaMAR, March Term, 1858.

This bill was filed by James A. Rooks, administrator of Tabitha Adams, deceased, wife of Obadiah Adams, against William Bryan, executor of Daniel Massey, deceased.

The following are the facts as agreed upon by counsel: Daniel Massey, Bryan's testator, died in 1847, leaving by

Bryan, ex'or., &c., vs. Rooks, adm'., &c.

will to complainant's (Rooks') intestate, daughter of said Massey, who died about two months after her father, two negroes, Joe and Ned, together with an undivided interest in remainder in an estate left her mother, the widow of said Massey; that her husband, Obadiah Adams, died about twelve months after the death of his wife, without reducing the subject matter of this suit into possession, or administering upon her estate.

The bill filed by Rooks, as admitted, set forth the foregoing facts and prayed for an account and recovery of the legacy-the two negroes, Ned and Joe. These allegations were admitted by the answer, and in addition thereto, Bryan stated, that as there were no debis against plaintiff's intestate, there was no necessity for an administration upon her estate; that she had left no child or children, and that the object of the administration was to have the property inure to the benefit of (as he had been informed) a son legitimated by and made the heir of Adams; that he sold the negroes after Adam's death, and distributed the proceeds of the sale between Mrs. Adams' two sisters, one of whom was his, Bryan's, wife; that when a witness on the stand, he did not state that the distribution was made with the knowledge or assent of Adams, or whether before or after his death; that the sale was in 1848 on twelve months time.

The complainant proved by William Bryan the worth of Joe and Ned, their annual hire.

Defendant, the evidence being closed, moved to dismiss the bill because, under the case and facts made and agreed upon, no one had a right to administer upon the estate of Tabitha Adams and bring this suit, except Obadiah Adams, her husband; and he, having died without reducing his wife's choses in action into possession, or administering upon her estate, that no one else can do so, especially unless she left creditors.

Bryan, ex'or., &c., vs. Rooks, adm'r, &c.

The Court overruled the motion, and the jury found for complainant. Whereupon defendant excepted, and assigns

error.

W. S. ROCKWELL, for plaintiff in error.

SAMUEL HALL, for defendant in error.

By the Court.-MCDONALD J. delivering the opinion.

We affirm the judgment of the Court below. The lega cy, 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.

Russell. vs. Arnold

JACOB RUSSELL, plaintiff in error, vs. JOHN F. ARNOLD, defendant in error.

The Act of 1845, exempting the daily, weekly, or monthly wages, of journeymen mechanics and day laborers, from garnishment, is not repealed by the repealing section of the general attachment Act of 1850.

Certiorari, from Bibb county. Tried before Judge LAMAR, May Term, 1858.

John F. Arnold sued Jacob Russell in a Justices Court, and garnisheed the South Western Railroad, and on the return of the answer to the garnishment, plaintiff moved to enter up judgment against the garnishee; to which the defendant objected on the ground, that the monthly wages of laborers and mechanics are exempt from the laws of garnishment. The answer of the garnishee was, that they were indebted to Russell $33, for one month's wages as a fireman for one of their engines, he having been employed by them as such fireman at $33 per month, payable monthly; which objection the Justice overruled, and defendant certioraried the case to the Superior Court; said Court sustained the decision of the Justices Court and defendant excepted.

LANIER & ANDERSON, for plaintiff in error.

W. T. MASSEY, for defendant in error.

By the Court.-BENNING, J. delivering the opinion.

In 1845, the General Assembly passed an act in the following words: "That from and after the passage of this act, all journeymen mechanics and day laborers shall be exempt from the process and liabilities of garnishment, on their daily, weekly, or monthly wages, whether in the hands of employees or others." Cobb Dig. 88.

On the 4th of March, 1856, the General Assembly passed

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Russell vs. Arnold.

a general act relating to attachments and garnishments, of which act, the 55th section is in the following words:

"That all Acts and parts of Acts upon the subject of attackments and garnishments, be and the same are, hereby, repealed." Acts of 1855-56, 38.

In the present case, the Court below held, that this section repealed the former Act. Was that decision right?

We think not.

On the 5th of March 1856, the next day after the date of the Act containing the repealing section aforesaid, the General Assembly passed an Act of which, the first section is in the following words:

"That in all cases hereafter, where any fi. fa., or attachment shall be issued from any of the Courts of this State, the defendant or defendants in said fi. fa., shall be authorized to present to the levying officer, a schedule of such property as may be exempt from levy and sale, and upon failure of the defendant to do so, then the wife of defendant, or any of the children, or any one who shall appear as the next friend of said wife, or child, or children, shall be authorized to do so, provided, that said next friend shall give notice, under oath, that the same is done in good faith; and when this shall be done, if the levying officer shall levy and sell said property, he shall be liable to be sued for trespass." Id. 232.

This is an Act in aid of the exemption Acts; the passage of it shows, therefore, that the legislature must have considered those Acts as still in force, notwithstanding the passage of the said repealing law on the day previous. The passage of the Act may, therefore, be taken as showing, that the words " Acts and parts of Acts upon the subject of attachments and garnishments," contained in the repealing law of the day previous, were intended by the Legislature, not to include the Acts exempting certain property of certain classes of persons from their debts, (which is exempting it from all legal process whether by attachment, garnishment, or fi. fa.) The two laws were passed by the same legislature, and with the in