By the Court. —
Jenkins, J.,delivering the opinion.
' The exception to the judgment of the Court below, admitting in evidence a record of the Court, in a contest for the guardianship of the sole heir of intestate (a minor) between the same parties, showing that the guardianship had been awarded to defendant in error, will be postponed to the consideration of the exception to the charge of the Court.
• This charge contains two legal propositions: 1st. That neither party had a legal right to the administration, and that the grant of it rested very much in the discretion of the jury. 2d. That “in determining who of the two should have the administration, the jury might consider the fiduciary relation of the defendant in error (as guardian) to the minor, in whom if of age, the legal right to the administration would vest, as a fact to influence their decision.”
. The plaintiff in' error caveated the application of the defendant upon the ground (among" others) that the applicant had no interest in the estate, and that the caveator had an interest therein, and an interest in behalf of his children— “caveator being the maternal -uncle of Martha Rourania *697Tindall, the only child of deceased.” This averment shows that the entire interest in the estate of the intestate (beyond that of creditors, who are wholly without this issue) is in Martha E. Tindall. The interest set up by caveator for himself, and in behalf of his children,, is an interest in the estate of Martha E. Tindall, as her heirs presumptive. But this is not the interest to which the law looks, in determining who is entitled to the administration of an intestate’s estate. It looks only to interest in that estate. The language of our statute is: “The same rules -shall obtain in granting adminstration on intestate’s estates, as were before-mentioned for the distribution thereof.” Cobb’s Digest, 3°S- _
_ This rule entitles the next .of kin to the administration. Where there is (as in this case) but one such, that one is entitled to the administration. The first proposition of the Court, therefore, was correct.
This Court, in the case of Scranton and others vs. Demere, 6th Geo. 100, in considering the question whether administration might be granted on the estate of a free person of color, and to whom granted, holds this language: “We place them on the same footing with infants in regard to administration. If an infant be next of kindred to the deceased intestate, and thus entitled to the administration, it will be granted to his guardian, durante minore estate” — citing 1st Williams Ex’ors, 295. Although this question did not come directly before the Court, in that case, the dictum quoted can hardly be considered obiter: first, because upon it the Court’s judgment was made to turn; secondly, the dictum itself is fortified by authority cited. If this be law, and we think it is, at least to the extent of making a prima facie case in favor of the guardian, there was no error in the second proposition embraced in the charge.
The exception to the ruling of the Court, admitting the record evidence of a grant of guardianship to the applicant for administrator, is based upon two grounds: First, that it was irrelevant to the issue; secondly, that the record showed no judgment of the Court of original jurisdiction, which Court, alone, could grant letters of guardianship.
Our ruling upon the charge of the Court, disposes of the first ground taken in support of this exception.
If the jury were correctly charged, that in determining *698to whom they would grant administration, they might consider the relation of guardian and ward existing between the applicant and the sole and infant heir of the intestate, evidence showing that such relation did exist, was certainly relevant to the issue.
The record offered and received in evidence, showed a case initiated in the Court of Ordinary, the judgment of that Court, an appeal therefrom to the Superior Court, and the judgment of the latter, awarding guardianship to the applicant for administration, in the case then before the Court. It is true, that the-Superior Court ha'd only appellate jurisdiction in the case presented by the record; and it is equally true, that, as an appellate tribunal, it could not issue letters of guardianship to the successful contestant. But upon the sole question involved, viz.: to whom guardianship should be granted? the judgment of the Superior Court was conclusive. That Court had the power to issue its mandate to the Court Of Ordinary, to confer the guardianship upon Warnock (the present plaintiff in error), and to compel obedience to that mandate. Findlay, Adm’r, etc., vs. Whitmire et al., 15 Geo. 334.
Eor many purposes, this judgment of the Superior Court would not have availed the plaintiff in error, as e. g., where it became necessary to sustain a right of action as guardian. In such and like cases, he must go further and put in evidence, or make proferí of his letters of guardianship. But in a contest between A. and B. for the administration of the estate of an intestate, whose sole’heir was an infant, a record, showing the judgment of a Court of final jurisdiction, in a contest between the same parties for the guardianship' of that infant, is evidence, because it establishes a right, the existence of which is a circumstance proper for the consideration of the jury, in the case on trial. The only remaining exception is, to the refusal of the Court to suspend the case on trial, and allow counsel for the caveator time to file a bill of exceptions to a decision of the Court previously rendered, overruling a motion for a new trial, in the case (the contest for guardianship) the record of which was then offered as evidence in this case — counsel stating that it was their intention to1 file such bill of exceptions, and to give bond and security, in terms of the law, and thus supersede and avoid the effect of the judgment so offered in evidence.
*699Either the filing of a bilí of exceptions, and giving bond and security, as proposed, would have subtracted from the record in question its quality of legal evidence, or it would not.
If it would, how stands the question? Here was a record offered as evidence to a jury in a cause submitted to them, and in progress, which is determined to b,e legal evidence; but the. Court is asked to suspend the cause actually on trial, and entertain an application to avoid, or vacate, tfte judgment rendered in another cause, for the avowed purpose of excluding it as evidence in the particular case before the Court. If there be either reason or precedent for such a practice, neither is known to us.
If the supersedeas proposed to be obtained would not have divested the record in question of its quality as evidence, there would be, if possible, less reason to grant the motion. We incline to think that would riot have been the effect of the supersedeas. We think the filing of a bill of exceptions to a judgment of the Superior Court, suspends further progress in that cause, until the judgment of this Court; it does not vacate the suspended judgment. That can only be done by judgment of this Court upon the bill of exceptions. But we do not decide this point. We affirm the judgment of the Court below.
JUDGMENT.
Whereupon, it is adjudged by the Court, that the judgment of the Court below be affirmed.