Curia, per

My decision, which is copied in the brief, was written on the back oí the suggestion, and does not pretend to set out the facts. It referred to what appeared in the suggestion, and the answer of the Ordinary. It is hence necessary, that I should state the facts upon which our judgment turns.

Soon after the death of Mrs. Mayrant, her will was proved, and the Ordinary ordered that administration cum testamento annexo should be granted to Mrs. Simmons, the sister of the deceased, and her next of kin, on her giving bond in the sum of $60,000, with two good securities, residing in Greenville district. The mandamus was applied for to correct the qualification of the residence of the securities, and to compel the grant of administration without any such condition. The Ordinary answered, admitting the order which he had made, but stated that he had become *103subsequently satisfied that Samuel Mayrant was executor according to the tenor of Mrs. Mayrant’s will, and that he had, therefore, committed to him letters testamentary, and revoked the grant of administration to Mrs. Simmons. Under this state of the facts, it is necessary to enquire, 1st. whether Samuel Mayrant is executor 1 and, then, 2d. if he be not, whether mandamus will lie 1

1st. I have considered this question, here with more care, than I had the opportunity of doing on the circuit, and the result is a most deliberate conviction of the correctness of the decision below. To constitute one an executor, according to the tenor, it is necessary that he should have “the charge and office, or the right of an executor.” In Swinburne, on Wills, 350. 1st Williams on Executors, 123, instances are given of an executor, according to the tenor. All of them arise from making the person the residuary legatee. (That was necessarily the case, from the fact that in England the executor, by virtue of his office, took the residue. But there is great room to doubt, whether the same result would follow here, when the executor has no such rights. In Swinburne, 358, it is advised that if the words be indifferent to make an executor or universal legatary, it is best to take the latter, and let administration be granted. It is, however, better to test this case by the principle extracted from Williams, and which I have already laid down, 1st. Does the will commit io Samuel Mayrant the charge and office of an executor 1 To me, it is plain, it does not. It was intended that he and Mrs. Simmons should be testamentary guardians, and to Mr. Mayrant was intended to be committed more especially the charge of the sons ; the oldest, it was directed should go to school for a limited time, and then to embark in such business as he might select, with the concurrence of his uncle, S. Mayrant; the youngest was left to the discretion of his uncle and aunt, S. Mayrant and Mrs, Simmons. So far, there is nothing like the charge or office of an executor, it (the will) directs, in these provisions, how the supposed guardians should act. Then the will directs that the sons should have a good education, and as much as was a necessary outfit for pursuing their profession, or business, which they might select, and the balance to be divided *104among the daughters ; and the testatrix declared that she wished “this to be carried into effect, according to the judgment of her brother-in-law, Samuel Mayrant.” Do these last provisions give him the charge or office of an executor ? Certainly not. He is to say how much will be a suitable outfit for the boys, after their education has been completed, and the balance is to be divided between the daughters. He is not to divide the property. It is merely, that this, as well as the outfit should be arranged according to his judgment. That is, he should advise how the property could be best divided. I look upon Mr. May-rant, as the mere adviser in the ultimate administration of the estate.

2d. Does the will cast upon him the rights of executor 7 There is nothing which shews that he was to have the control of the property. He is not directed to sell or divide it. He is not directed to pay debts. Indeed, there is nothing in the will, which, in the remotest degree can be considered as placing him in the stead of the executrix, and conferring upon him her rights. To be an executor, his authority must arise from the will, and unless there be a clear intent to constitute the person claiming to be so regarded the executor, he never ought to be declared to be so, according to the tenor. I confess, on referring to the 4th sec. of the Act of 1839, page 40, it may well be doubted, whether this whole doctrine of an executor, according to the tenor, is not thereby exploded. It provides that, “when a deceased has left a will, in writing, without appointing an executor or executors, therein,” it shall be the duty of the Ordinary to grant letters of administration, with the will annexed. How, after this provision, the Ordinary can hunt up, through a will, a constructive executorship, is difficult to conceive. It would seem to be enough to read the will, and if no executor is appointed, to grant administration. This would be a plain, practical rule for the guidance of Ordinaries, who are generally very little qualified to say whether there is an executor according to the tenor.

3d. The next general question is, whether mandamus will lie ? There being no executor, it follows, that the order granting administration to Mrs. Simmons, was impro*105perly revoked, and that she is entitled now to it, and it may be, that the condition that her securities should live in Greenville district is illegal, and should be struck out. How is she to compel the Ordinary to grant her the administration'? There is no doubt, that in England mandamus would be the remedy. In the King against Dr. Hay, 2d Wm. Black, 640, the court ordered a mandamus to the Judge of the Prerogative Court, to grant administration to the next of kin, notwithstanding there was a suit pending. So soon as the title to administration is clear of difficulty, then there is generally, according to the principles of the common law, a plain right to have a mandamus, to compel the Inferior Court, (if it refuses to act) to grant it. When there is no other appropriate legal remedy for the enforcement of a legal right, mandamus is the proper remedy. State vs. Bruce et at. 3d Brev. Rep. 270. It must be an appropriate, as well as a legal remedy, to oust the remedy by mandamus. In this State, it is said the parly, whose right of administration is denied by the Ordinary, or delayed by improper conditions, may appeal. The Act of 1839, sec. 13, provides, if any person shall think himself aggrieved by “any judgment, sentence, decree, denial or order of the Court of Ordinary, it shall and may be lawful for such person to appeal, by filing within twenty days his ground of appeal, and serving the opposite party or attorney with a copy thereof.” In another part of the same clause, the party appealing is directed to file in the Clerk’s office a suggestion, setting out “the judgment, sentence, decree, denial, or order,” and his grounds of appeal, and thereupon to post the usual thirty day rule to plead, and an issue in law, or in fact, is there directed to be made up, according to the nature of the case. These provisions plainly point to a case between party and party, in which there may be an appeal. It does not apply to a question of right, in which one party is alone concerned, as Mrs. Simmons is. But, I apprehend, a doubtful right of appeal, does not destroy a plain common law right. For the right to compel the Ordinary to grant administration to the next of kin, by mandamus, is essential to the preservation of estates. It cannot be, that an estate is to be unrepresented, while an appeal is to be carried up to the next Circuit *106Court, and decided. The mandamus, without any such delay, can be obtained from any of the Judges at Chambers, and the administrator admitted to his rights. I think, therefore, Mrs. Simmons had no other appropriate legal remedy, and hence, that she is entitled to have the writ of mandamus. It has not been denied, that, that part of the Ordinary’s order, committing administration to Mrs. Simmons, which requires the securities to live in Greenville district, is illegal. The Ordinary is to take good security for administration; but he has no right to make residence a part of the qualification of the securities.

The motion to reverse the decision below, is dismissed.

I agree that the will contains no sufficient appointment for executor, and that the mode of appeal is by the Act of 1839, left too doubtful and difficult to take away the remedy by mandamus. Therefore, I concur in the result.

dissenting. I feel bound, in this case, to record my dissent from the judgment of a majority of my brethren, upon both of the questions involved in the grounds of appeal.

1st. I think Samuel Mayrant was entitled to be invested with the authority of executor, under the will of Mrs. Caroline Mayrant. His agency is indispensably necessary to carry that will into effect. Although he is not, in express terms, appointed executor, yet he is required to exercise powers that will, in their direct consequences, execute the will of the testatrix.

“An executor is the person to whom the execution of a last will and testament of personal property is, by the testator’s appointment confided.” 2 Black. Com. 503. Although no executor be expressly nominated in the wall, by the word executor, yet, if by any word, or circumlocution, the testator recommend, or commit to one or more, the charge and office, or the rights which pertain to an executor, it amounts to as much as the ordaining and constituting him or them to be executors, 1 Wms. on Ex’ors. 123, *107The purport of Mrs. Caroline Mayrant’s will, when analyzed according to its just construction,, is as follows: With maternal solicitude, in the first place, she provides guardians for her children. The care and direction of her older son, she particularly commits to her brother-in-law, Samuel Mayrant, whilst it is her desire, that her sister should have the guidance and care of her daughters, both, however, to co-operate in a general superintendance. With regard to the youngest child, she leaves his education to be directed by his uncle and aunt, according to the subsequent developments of his character. This purpose being expressed, the testatrix, in the last part of her will, provides, in effect, for the disposition of her estate, with a view, both of gratifying her own wishes, and of effecting the probable designs of her husband in relation to their children. She gives to her sons, money enough to acquire an education and profession or calling, with a decent outfit. After these expenditures, it is provided that the remainder of her estate should be divided between her daughters. And how is this disposition of her estate to be carried into effect'? Why, as she expresses it in the last line of her will, “according to the judgment of her brother-in-law, Samuel Mayrant.” From this, it would seem evident, that the money for the education of the children, must go through the hands, and be expended, by the direction of Samuel Mayrant, and it is equally clear, that the remainder cannot be divided in any other way than as Samuel Mayrant may direct. His will and judgment constitute the law, under the will, for the disposition and distribution of the estate. With these explanatory, but full powers, necessarily implied, can it be supposed that the testatrix had in contemplation any other agency, such as would be required in the functions of a distinct administrator, to carry into effect the provisions of her will % What discretion or power would such an agent have1? No more than those of an automaton, moving under the volition and judgment of Samuel Mayrant. The estate is to be expended and divided by him, and only by him; what necessity then, can there be, for calling in the inoperative interference of another 1 I can neither perceive or imagine a reason for it. I think this view is illustrated by the cases quoted in WTil*108liaras on Executors; as where the testator says, I commit all my goods to the administration of A. B.; or to the disposition of A. B. In such cases, A. B. would be appointed executor. 1 Wms. Ex'rs. 123.

The second question is still free'rfrom difficulty. There was no necessity, or legal propriety, in resorting to the writ of mandamus, to compel the Ordinary to do his duty, in reference to the rights of Mrs. Simmons. She had a statutory remedy fully provided by the Act of 1839. The writ of mandamus is a high prerogative writ, issuing in this State, from a Superior Court of Law, directed to officers of an inferior jurisdiction, requiring them to do some particular act, therein specified, which pertains to their office and duty. In general, it is to require such officers to do some ministerial act, which they have omitted, and which, by law, they are required to perform. It ought to be used on all occasions where the law has established no specific remedy, and where, injustice and good government, there ought to be one. 4 Bac. Ab, (Mandamus.) But it appears from the same book that where the party applying for such a writ, has a specific and subsisting legal remedy, for a legal right, it will be denied. The remedy in the case of the present relatrix, is provided in the following clause of the Act of 1839, page 42, sec. 13. “If any person or persons shall think themselves aggrieved, by any judgment, sentence, decree, determination, denial or order, of any of the Courts of Ordinary aforesaid, it shall and may be lawful for such person to appeal therefrom to the Court of Common Pleas or Equity, by filing within twenty days thereafter, his or her grounds of appeal therefrom, and serving the opposite party or attorney, with a copy thereof.”

If Mrs. Simmons was entitled to the administration, and the Ordinary had refused to grant her letters, or if he had granted them with an order that her securities should reside in Greenville, what was then to prevent her from taking an appeal from either, as an entire denial of her rights, or an order made in derogation of them. I can perceive no reason whatever; on the contrary, her mode of redress is specifically provided by the ample provisions of the above clause. She had a right to appeal to the Court of Common Pleas, to have such denial or order reversed, with in*109structions to the Ordinary, as to his duties. On the Ordinary’s refusing to comply and carry into effect such instructions of the Court, growing out of the appeal, a mandamus might issue, or some other process to compel the subordinate tribunal to do its duty. It is said, however, that an appeal is only contemplated, and provided for, in cases where there is another party on whom notice of appeal may be served. According to this view, there can be no appeal from the Ordinary, in ex-parte cases. The very word “denial,” seems to imply that there may be an ex-parte application to the Ordinary, and that upon his refusal or denial of which, an appeal will lie. It was necessary and proper that the Act should have provided for all cases, and hence, the provision that where there is an opposite party, notice should be served on him. But where there is no party occupying an adversary position, of course there will be no necessity to serve notice. It does not follow that such party, who may have met with a gross denial of his rights, shall be deprived of all right of appeal, because he can find no party to serve a notice on. When there is no opposite party concerned, the party complaining shall file his ground of appeal with the Ordinary, and thereupon, that officer would be required, as provided by the Act, “on filing such notice,” to make out for the party so appealing, a “copy of such judgment, sentence, decree, determination, order, or denial,” and of the evidence taken by him on such proceeding.

I have always understood that it w7as an axiom, that the major included the minor, and, therefore, where a party is allowed an appeal, wffien he is required to serve notice on others w7ho are concerned, I do not see why he may not appeal when no body is concerned but himself. He only has less to do in one instance, than in the other. But it is unnecessary to attempt, by illustration, to make the palpable meaning of the Act, clearer than its own lauguage speaks. Its provisions are made even plenary by cumulative expletives.

Note. . When mandamus lies generally — see The People vs. Corporation of Brooklyn, 1 Wendell, 318; Commonwealth vs. Risseter, 2 Bin*110ney, 362; Griffith vs. Cochrane, 5 lb. 87; Commonwealth vs. Judges of Common Pleas, 3 lb. 275.

It seems that mandamus will lie to prove a will, and if there be none, to grant administration. Gray vs. Finch, Comb. 454; Dunkin vs. Mun. T. Raym. 235.

To Inferior Courts, 10 Wend. 285 ; 2 Cowen, 479. Amherst’s case, T. Raym. 214; Burgh vs. Blunt, Mod. Rep. 350.

See further, many cases collected, Am. Com. Law. (Mandamus.)