case Blackborough versus davis refer to in re goodman trust Ch d salk Lord ray  Com Rep Eq can ab pl one die intestate leave a aunt and a grandmother his next  of kin the grandmother be near of kin than the aunt and be entitle to  administration in preference to her neither be the latter to come in for a  distributory share see the same point determine in the case of Woodroff v  Wickworth upon the strength of this resolution precedent in Chanc Daubegny  Bentney be possess of a considerable personal estate die intestate leave a  grandmother and a aunt his next of kin the spiritual court grant ad peer  William er p ministration to the grandmother upon which a motion be make to  the court of king bench for a mandamus to the spiritual court command they to  grant administration to the aunt as more near of kin than the grandmother  Broderick and sergeant darnel be for the mandamus and sir Bartholomew shower  and cheshire content and for the mandamus it be urge that a aunt be near of  blood than the grandmother and as such entitle to the preference by virtue of  the statute of h cap peer William that the ordinary have no authority to grant  administration contrary to the statute and that have grant it tortiously he  ought to rectify it they admit that before the statute of Edward the ordinary  be not compellable to grant administration to the next of kin and that the  administrator be at that time only as a servant to the ordinary ante petit v  smith but by the Edward cap the ordinary be oblige to commit administration to  the near and most loyal friend of the intestate yet the h cap give the  ordinary a election to grant administration to the next of kin or any in equal  degree but it be say if the next of kin at the time of the death of the  intestate be disable by attainder c and afterward the disability shall be  remove the ordinary ought to grant administration to he but in case  administration have be before grant and pen the disability it be make a  question in side Offley versus best whether such grant of administration ought  not to be repeal before the next of kin shall obtain a grant of it in regard  the interest be vest but that the difference be where the administration be  grant to the next of blood and where to a stranger in the last case the new  administration ought to be grant without any formal repeal of the first the  very act of grant the new administration amount to a repeal andr owe cro  Elizabeth for that the ordinary have never in this case execute his authority  and therefore though in packman case   b it be do upon a citation yet it do  not follow that it can not have bean do without it of which opinion be Popham  in cro Elizabeth and if the ordinary may do it without a citation the court of  king bench will oblige he and the rather after he have as in the principal  peer William case grant it contrary to the statute but probable the mandamus  will not confine he to any particular manner of do it for which reason it may  be do by citation if that be more proper beside the administration may have be  grant in time of vacation before application can be make for a mandamus but  afterward on great consideration a mandamus be deny by all the court and per  holt c I in the vacation time one may resort to the chancery and upon a  suggestion that the spiritual court have proceed to grant administration to a  wrong person may have prohibition out of that court returnable into b b or c b  the authority that have be cite be ground upon a reason that be not law for  the administrator at this time be not a servant to the ordinary but have as  fix a interest as a executor who be appoint by the party himself and though  the ordinary be by the statute of h cap restrain to grant administration to  the next of blood yet he be not so restrain as to make a administration grant  by he though contrary to the statute a mere nullity for if such administration  be void then all disposition of the good of the intestate pen the say  administration and before the repeal of it will be void also and after it be  repeal trover will lie for these good which can be thus if a administration  commit to a creditor be afterward repeal at the suit of the next of kin the  creditor shall retain against the rightful administrator   and all disposition  of good make by he pen the citation shall stand for this be not like the case  of a administration grant peer William by a bishop of a inferior diocese where  the intestate have good notabilia in diverse diocese because there such  administration be absolute void ravenscroft v ravenscroft lev it shall be a  good return to the mandamus that administration be already commit and that  there be no lie to hang not that I will be understand to intimate hereby that  in case there have be a citation pen I shall have be for grant a mandamus but  without question before this the motion be make too soon in the case of sir  George sand side the administration be grant to the brother who continue to  administer some time and afterward one pretend to be the wife of the intestate  commence a suit in the spiritual court to repeal the adminis peer William er p  tration commit to the brother insist that it ought to be commit to the wife  and the brother apply here for a prohibition because the ordinary have a power  to grant it either to the wife or next of kin and it be hold that the ordinary  can not repeal the administration grant to the brother for that he have  execute his authority there be the case of Duncomb versus mason where a feme  covert die intestate have debt due to her which the law do not give to the  husband and administration be grant to the next of blood the baron sue in the  spiritual court to repeal this administration and after prohibition and  declaration thereupon the question be whether the husband shall repeal this  administration and resolve he shall on the other side the case of sir George  sand be object but the court be of opinion this case be not at all affect by  that of sir George sand for that the husband have a original right by the  Edward peer William cap as the most loyal friend of the wife and be not within  the h cap so that the ordinary have not a election in case of the husband it  be also hold that the grandmother be at least as near of kin as the aunt for  in the case of a descent of land it will be a mediate descent and the medium  to both be the father and it be enough to say brother and heir or sister and  heir which be the great reason in the case of Collingwood and pace vent and  the grandmother seem to have the advantage she be of the right line and the  aunt of the collateral wherefore for these reason a mandamus be deny note sir  Barth shower cite the case of Burton versus sharp last Trinity term where  administration be sue to be grant to the great grandmother upon which the aunt  move for a prohibition in c b to stay the suit in the spiritual court but a  prohibition be deny the court have thus refuse a mandamus for the salk repeal  this administration and for the grant a new one to the aunt a motion be  afterward make by sergeant darnel and Broderick for a mandamus to be direct to  the judge of the prerogative court command he to direct distribution of the  intestate personal estate to the aunt as well as the grandmother it be insist  that this method be proper the aunt be entitle to distribution by the car  equal with the grandmother that the distance of degree be to be compute from  the intestate and not between themselves that by the canon law the aunt be as  near in degree as the peer William grandmother and though the civil law differ  from the canon yet that can not bind we here Inst b that the design of the car  be to fix a rule in distribution and not to leave it to the discretion of the  judge that every person entitle to his distributory share have a interest Mod  vern vern vest in he before distribution actual make that the degree of  relation between the aunt and the nephew be only mediant patre and in a writ  of formedon the plaintiff in make out his title may without mention any other  derive it immediate from the father that it be true by the civil law the  grandmother or indeed any ancestor immediate lineal to the intestate though  never so remote shall be prefer as be in the lineal ascend line and in loco  parent before the brother and sister or any other in the collateral line but  that seem against all reason that in the case of carter versus Crawley raym no  notice be take of the grandmother sir Barth shower content the car do not  warrant this mandamus for it do not oblige or enable the ordinary to do any  thing which be not the course of their court before it may possible be a good  cause of appeal but can be no ground for a mandamus be a matter of  ecclesiastical jurisdiction by the civil law the grandmother be near of kin  than the aunt I admit a mandamus may be grant to make distribution general  among the next of kin but not to command the ordinary to grant distribution to  a and b as next of kin in particular for that will be to take from the  spiritual court the power they have of judge peer William which degree of  relation be next of kin when the subject matter do not belong to the temporal  court anon stram bouchier v tailor bro p c bro p c and ed as it may when the  dispute be betwixt the administrator and a creditor No mandamus will lie to  give a specific legacy or sum of money to a particular legatee and those who  be entitle to a distribution as next of kin be legatee in law no other be  appoint by any will vern and post Trevor v Trevor holt Q I if the  ecclesiastical judge act contrary to law may not this court oblige peer  William er p he to pursue the law there any difference betwixt grant a  prohibition to stop they from go wrong and a mandamus to guide they right a  prohibition be grant upon this statute inter smith and Tracy vent and the  consultation award afterward be not because the prohibition do not regular lie  but for that the ecclesiastical court proceed and determine right and as to  appeal if the constant opinion of the civilian be against the rule of low it  be then in vain to put the party to his appeal as be resolve in the case of  Shotter versus friend salk Carth where they will not admit of proof of payment  of a legacy by one witness shower the superior court never send a mandamus to  a inferior court to act contrary to their rule and opinion as on a reversal of  a judgement it be the superior court that give the new judgement vide salk the  superior court often send prohibition to inferior court but how can this or  any other court command a judicial officer to act against his opinion peer  William afterward dr lane argue against the mandamus that the grandmother  stand in the place of the father and mother who by the civil law have the  right of succession exclusive of the brother and sister that the grandmother  by the civil law stand in the second degree to the intestate and the aunt in  the three it be true the canon law differ in place the aunt in the second  degree the reason of which be on the account of marriage for in that  particular they be apt to confound the degree of nature that the aunt in this  case be the daughter of the grandmother and can not be in equal degree with  her mother so neither can she be entitle by the statute of distribution nor  consequent to a mandamus that the child of uncle have no right to distribution  by representation in concurrence with the uncle as have be adjudge and confirm  by constant practice that if mother child before the statute of James c have  no right to distribution then sure the grandmother child can have no right  till it be give they by some law holt c I if a child have die intestate  without wife child or father live only the mother the mother have the whole  till James Keylway v Keylway Vol two exclusive of the brother and sister and  there must be the same law now as to the grandmother with relation to the ant  the father survive have the child whole estate at this day Cheshire No  mandamus ought to go at least till the court have err for this court will not  anticipate the judgement of the spiritual court peer William holt c I before  the statute of es the ordinary have the power of distribution use to dispose  of part among the relation and the other part to charity but that statute take  away such right from the ordinary and fix the title to the personal estate in  the administrator ante and before the car the ordinary can not compel the  administrator to make distribution but be from time to time prohibit lev and  post Edward versus freeman Vol I will fain know how it come to pass that the  spiritual court have not pursue the ancient civil law but have vary that by  the novel dr lane before the novel be introduce the court proceed by the rule  of the customary law and afterward be never entire direct by the novel which  be not introduce till the thirteenth century and as to the canon there be some  of they which express give the preference to the grandmother before the  brother and sister of the intestate and it be the mercy of the civil law to  let in the brother and sister chief justice the statute of James allow the  proceed of the spiritual court to be right as the law then stand but think it  unreasonable that the mother who may marry again shall carry away all and  therefore the parliament let in the intestate brother and sister equal with  the mother but still the father have all if the spiritual court since the  statute of car shall attempt a distribution contrary to the rule of the  commonlaw we will prohibit they for by that statute they be restrain to the  rule allow among we afterward in hill term follow it be resolve per lot cur  that a mandamus shall not be grant and holt c I deliver the reason peer  William the law of England and not any foreign law ought to govern this case  it must be observe that by the ancient law here both before and at the  conquest all the descendant son and daughter in general do inherit as well the  real as personal estate of the ancestor equal and in a like proportion and so  it appear in seldom peer William er p eadmerus lambard Saxon law foe si quis  without a will obierit unconstrained he hreditatem equaliter dividant c but in  process of time new law be introduce and the change seem to have begin tempore  Henry primi when the female in case there be male be exclude from the  inheritance of the real estate but the male inherit equal all the socage land  Glanville lib cap but at that time if a child die without issue the land go to  the father or mother in preference to any of the collateral line as you may  see in lambard inter law Henry primi cap si quis without book to go away pater  or mater he in hreditatem to go below well frater et sister si pater et mater  to be away si nec hos to have sister father well matris et deincep who near in  parentela to be et dumb of a man sex to stand out et hreditas from that source  sit fmina non hreditet and this law be cite by lord coke in his comment on  Littleton foe where he say he never read a opinion in a book old or new  lambard be not then publish against the maxim that inheritance can lineal  ascend but only in Libro rub cap which record in the exchequer be  notwithstanding of great authority even at this day but this law of succession  do not continue long be alter betwixt the time of h I and h when the father  and mother be exclude and the inheritance carry over to the collateral line as  appear by Glanv lib cap peer William however this alteration of the descent be  make only as to the real estate and do not extend to the personal estate for  as to that the father and mother have always the preference before the brother  and sister which be a plain demonstration that they be esteem near of kin vide  vent and then by the like reason the grandmother must be prefer before the  aunt I admit that new law be introduce in the latter end of justinian reign  but they be such as have be in ancient practice in the Prtorian court  videlicet the brother and sister be let in to share with the father and mother  but all other collateral more remote be exclude and the grandfather and  grandmother be prefer before the uncle and ant it appear from ridleys view of  the civil law page that the grandmother c of the ascend line to the utmost  degree be ancient prefer before the near collateral but that may now be alter  by the statute of car which prefer the next of kin though collateral before  one though lineal that be more remote but in our case the grandmother be near  of kin to the intestate than the aunt for the aunt be not of kin to the  intestate but as she derive her kindred from the grandmother her mother and  therefore not in equal degree beside where one be lineal and the cause of the  kin and the other collateral the person who be lineal shall be prefer here the  grandmother be the root of the kindred and so must be near than they that  derive their relation from her this rule of succession in the ascend line be  agreeable to peer William the law of other nation for by the constant practice  of the Jewish nation hale history of the commonlaw for want of issue of the  son the father succeed to the purchase of the son exclude the brother accord  to the construction of the Jewish doctor upon the xxvii chapter of number as  you find it in Selden de successionibus at Hebros cap and indeed by all law  except that of Justinian the father be prefer to the brother but our case fall  not within the reason of justinian law though if it do the civil law oblige we  here only as it have be ancient receive and it can not have be receive tempore  Henry primi who live about the year of our Lord for that the work of Justinian  be first publish about year dom and be practice about forty year after which  they be total neglect in the empire for year and new law be set up by the  emperor Basilius which be follow till the cake of Constantinople year and till  the year which be the h the law of Justinian be not again hear of but about  that time be find by Lothar at the take of Amalfi and be peer William publish  at the university of Bologna as appear by Mr seldom note on fortescue cap  Selden of tithe and also in a treatise de use et authority law courtesy of  Rome by dr duck lib cap who be repute to be a eminent and learned civilian so  per tot cur a mandamus be deny see the case of more and Barham may at the roll  one die intestate leave a grandfather by the father side and a grandmother by  the mother side his next of kin these grandfather and grandmother shall take  in equal moieties by the statute of distribution as be in equal degree for  though the grandfather by peer William er p the father side may in some  respect be more worthy of blood yet here dignity of blood be not material in  regard the brother of the halfblood case in parliament Carth shall take equal  with the brother of the whole blood and the master of the roll sir Joseph  Jekyll be so clear as to this point that he will not suffer it to be debate  vide the several case upon this subject collect in Com dig title administrator  b and go off exec the court of chancery have even in termtime a concurrent  jurisdiction with court of commonlaw in case of this kind ex part Lynch mad  coop but do not Willing exercise it while those court be open Montgomery v  Blair Sch l et vide anon post crowley case swan Administration commit contrary  to the statute be not void but voidable Acc anon Com Rep but contra as to  probate grant to a executor under a forge will ib Carthew so that though a  person entitle to a distribution die before distribution make yet it shall  vest in he the clause direct that distribution shall not be make until a year  after the death of the intestate be mere for the benefit of creditor but it be  to be observe that though each distributory share vest on the intestate death  yet the same do not so vest as to exclude a posthumous child vide post Vol h  Edward at versus freeman all see hale history of the commonlaw p and post  clement versus Scudamour but such brother and sister must have be of the whole  blood or ex utrisque parent to yoke together hale history of the commonlaw the  work of Justinian be publish in the follow manner videlicet the Code be the  first book which the emperor Justinian order to be collect for the most part  out of the constitution of the former emperor disperse in the Gregorian  hermogenian and theodosian code there be only some fragment leave of the two  first but the theodosian be entire this work though first set about do not  come out till the year the digest or pandect come forth in the year and be  divide into fifty book it be collect from the commentary of the ancient lawyer  their response and other write the institute come out also in the year and be  divide into four book they be a system of the whole body of the law but nor so  distinct and comprehensive as it may be neither so useful at this day as at  first the institute sometime correct or be contrary to the digest but the  second publication of the Code come out after they in which some thing be omit  which the institute refer to from the first publication last of all the novel  or Authenticks be publish at several time without any method they be call  novel because they be new law and Authenticks because they be translate exact  and authentical from the Greek tongue vide wood institute of the civil law in  the introduction p peer William de term S HILLARII