I concur with the majority of the Court in dismissing the motion, because, in my judgment, the Judge of Probate does not possess the power of ordering a sale of the real estate of an intestate, by an administrator, for the payment of debts, on a deficiency of personal assets. The appellant here relies upon his title for the relief which he seeks by his bill. His claim to the equitable jurisdiction of the Court depends entirely on his right to the land. No matter what incidents attached to or follow its ownership, he is not entitled to their enjoyment unless the title vests in him.
The office of Judge of Probate was unknown by name in this State until the adoption of the Constitution of April, 1868. The first Section of the fourth Article of that instrument, in enumerating the Courts in which the judicial power of the State shall be vested, includes “Probate Courts.” The twentieth Section of the same Article declares that “ a Court of Probate shall be established in each County, with j urisdiction in all matters testamentary and of administration, in business appertaining to minors and the allotment of dower, in eases of idiocy and lunacy, and persons non compotes ■ mentis. The Judge of said Court shall be elected by the qualified electors of the respective Counties for the term of two years.” With the exception of a provision (Section twenty-seven) for a Clerk of the said Court, it is not again mentioned in the Constitution. The Legislature, on the 21st September, 1868, at its first session after the adoption of the Constitution, passed “ an Act to define the jurisdiction and regulate the practice of Probate Courts,” (14 Stat., 76,) to determine the extent of the jurisdiction of that Court we are to look to the Constitution, for, though the cotemporaneous Acts of the Legislature may reflect the light by which the true intention of the Constitution may be discovered, still of them*168selves they cannot operate to extend or enlarge a jurisdiction by the organic law intended to be of a limited character. All the means necessary and proper for the full exercise of the powers conferred by the Constitution may be granted by the Legislature, but it is impotent to confer, by Act, any additional power. In this connection it may be proper to say that nothing can be found in the said Act to which the power now claimed can be referred. If it is not conferred by the language of the Constitution, defining the general powers of the Court, it cannot be implied from either of the provisions of the said Act.
It cannot be denied that the Court, thus established, was the successor of the Court of Ordinary, which had existed in this State from the earliest organization of our judicial system, having in charge all matters relating to the property of deceased persons, whether to be administered under testamentary disposition or by the general law, alike applicable to the estates of all who die intestate. The Legislature, so regarding,the new office, by the 39th Section of the same Act, not only directed “ that the files, records and property of or appertaining to the said Courts of Ordinary should be transferred to the Courts of Probate for the several Counties,” but declared “ that all laws and parts of laws of the late Provisional Government of South Carolina relative to the powers, duties and course of procedure of the Courts of Ordinary and Equity, so far as the jurisdiction of the said Court is herein conferred on the Court of Probate, not inconsistent Avith the Constitution and this Act, or supplied by it, are hereby adopted and declared to be of force, and applicable to the Courts of Probate.” Thus all the laws, then of force, in relation to the powers, duties and course of practice in the Courts of Ordinary, not inconsistent Avith the Constitution, were extended to the Courts of Probate. As the Constitution had included, in the jurisdictions of these Courts, powers which had before appertained exclusively to the Courts of Equity, itAvas proper to declare such laws “ of force and applicable to the Probate Courts.” But the powers so conferred are expressly named in the Constitution. The order of the Judge of Probate, in the case before us, is sought to be justified by the Avords of the Constitution, repeated in the 5th Section of the Act of 1868, “shall have jurisdiction in all matters testamentary and of administration,” and the Avords of the 7th Section of the same Act, “all proceedings in relation to the settlement of the estate of any person deceased.” We do not perceive *169that these enlarge the powers before exercised by the Ordinaries in the particular matters to which they refer. It is not necessary to en-quire what was intended by the term “ matters testamentary,” or to what they were to apply, or to what limited, for the order here was not in a proceeding under a will, but in regard to real estate of which the person last seized had died intestate. Administration, when applied to an estate, has a well defined and technical meaning. It embraces the course of procedure by which the personal property of an intestate is to be taken in lawful charge and held after the payment of the debts for the benefit of those who may be entitled as distributees. Its duties, so far as concern the person to whom the letters, the title to the office, are committed, may be said to be comprised in the oath, which, on qualifying, the administrator is required to take, (5 Stat., 110,) and this exclusively relates “to the goods and chatties, rights and credits of the intestate.” Indeed, it is not urged that the power to sell land for the payment of debts of the intestate is a necessary incident to the office of an administrator, for the real estate vests not in him, but in the heir, and, therefore, such a proposition could not be ventured by the learned counsel who have been beared in behalf of the plaintiff.
But, if the real estate, as it is conceded, does not vest in the administrator, how can it follow, as a matter of course, that the Probate Judge, from the mere fact of his jurisdiction in “ matters of administration,” can authorize the administrator to sell the land for the payment of debts? Where the exercise of a power is claimed for a Court of limited jurisdiction, it must be shown to exist by express grant, or to be necessarily consequent upon some power clearly given. That which was exercised by the Probate Judge is not expressly granted, and to give to the words, “ all matters of administration,” such an enlarged and extended operation would be changing the character of his Court, and converting it into one of general jurisdiction. At the time the office of Ordinary was substituted by that of the Judge of Probate, he exercised jurisdiction “ in all matters of administration,” and yet, by the mere force of it, the power now claimed was never supposed to be vested in him.
“Words and phrases, the meaning of which, in a Statute, has been ascertained, are, when used in a subsequent Statute, to be understood in the same sense.” — Bac. Ab., Tit. Statute, J., 1.
The purpose of the 7th Section of the Act, to which we have above adverted, was to confine to the Probate Court of the County *170In which the will-was proved or administration granted “all proceedings in relation to the settlement of the estate of any person deceased.” Its position, with reference both to the Section which precedes and the one that follows it, evidently shows the intent of the Legislature in its enactment. But, if we are wrong in so supposing, and it is necessary to give meaning or construction to the word “settlement,” as it is that on which, in this connection, the plaintiff relies, can it be held to refer to anything but the adjustment of the estate on which the final account is taken, and the interests of the various parties involved in it ascertained and adjusted by the judgment of the Court? It implies finality, a termination of the office of executor or administrator, and a transfer to the legatees or distributees, as the case may be, of the property held for their benefit. The order for the sale of real estate, necessary for the payment of the debts of the intestate, is but of an interlocutory character, to be granted by a Court of competent authority when the circumstances and condition of the estate justify it.
But it is said that the words “ all matters testamentary and of administration ” embrace more than the ordinary ministerial duties of an administrator, and hence an attempt is made to distinguish between the limitations imposed upon an administrator, eo nomine, and the Court itself, restricting the one to his duties as specified and limited, but leaving the other charged with the entire administration of the estate. This construction would convert an admitted inferior tribunal into one of the most general and unrestricted powers, for, under such a claim of authority, its jurisdiction, in regard to the real and personal estate of an intestate, would be without limit.
The administrator, instead of being the representative of the intestate, as to the personal property of which the title vests in him, by law, and to an account for which he is liable, would thus be converted into a trustee of the lands while the actual title to them remained in the heirs-at-law.
But .the term “administration” has a well understood and accepted meaning. The counsel of the appellant refers to 1 Bouvier, 83, defining it “ as the management of the estate of an intestate, or of a testator who has no executor.” It does not refer to the management of it by the Court, but by the administrator. The administration is the act and work of the party who conducts it, and not of the Court which granted it. The very term adminis*171trator denotes the person charged with the administration of the estate. But, if the term used in the Constitution refers to the Court, and not to the administrator, how can this sanction a construction which would give a Judge of Probate power over the lands of an intestate ? He exercises jurisdiction over the personal effects of the intestate, through a power originally exercised by the crown, and afterwards delegated to the clergy, as Ordinaries (2 Blk., 494,) who abstained from all interference with the real estate.
So complete was the authority of these officers over the goods and chattels of the intestate, that they were not bound to pay his lawful debts, and after deducting the pars rationabilis of the wife and children, they might apply.the remainder to whatever purposes their consciences should approve. — 1 Wms. on Exors., 330. By Stat., 13, Ed., 1 c., 19, they were obliged to answer for the debts of the intestate as far as his goods extended, and it was not until Stat. 31, Ed. 3, St. 1, c. 11, that they were required to “ depute of the next and most lawful friends of the dead person intestate to administer his goods.” The office has relation exclusively to the charge and control of the personal property ; the bond which the administrator gives- has reference alone to this, and so grave a power as that of converting the real estate, the title to which is in the heirs, into money, the title to which is to vest in the administrator, should not be accorded unless the right to. exercise it can be shown by some positive enactment.
The authority is also claimed from the effect of the Stat., 5, Geo. 3, 2, ch. 7, 2 Stat., 570, which makes “houses, lands, negroes and other hereditaments and real estates in the said plantations belonging to any person indebted, liable to and chargeable with all just debts, duties and demands, and shall and may be assets for the satisfaction thereof in like manner as real estates are, by the law of England, liable to the satisfaction of debts due by bond or other specialty, &c.”
This Statute has been of force in South Carolina for over a century and a quarter, and yet it has never yet been so construed as to change the'relative rights of the administrator and the heir in regard to the personal and real estate of an intestate. If lands are to be held as assets for the payment of debts “in like manner as personal estates in any of the said plantations, respectively, are seized, extended, sold or disposed of for the satisfaction of debts,” why may not the administrator sell, by mere leave of the Probate *172Court, without making the heirs parties to the application ? While the Statute declares the lands liable for debts, and makes them assets for their satisfaction, as real estates by the law of England are liable to debts by specialty, it in no way changes the legal title in such lands, or subjects them to any sale on the application of the administrator for the payment of debts. The benefits which it confers is to be sought by the creditor, and is not to be extended on the motion of the administrator, who holds no title in the real estate.
It is true that where a Court of Equity entertains an application for the sale of real estate of an intestate, for the payment of debts, the administrator is made a party. The propriety of this course is plain. The personal property is first liable to the debts, and before the real estate shall be subjected to their payment, the personal representative should be required to answer; and, to prevent circuity of action, an account is taken at once in the case, and a decree entered against him, if in default, which enures to the benefit of the heirs.
The Court of Ordinary was clothed with as full authority, in all matters testamentary and of administration, as the Court of Probate, which succeeded it. — See Act of 1839,11 Stat., 39. It was, however, never contended that, on the application of the personal representative of the deceased, it could grant authority for the sale of real estate for the payment of debts on the failure of personal assets to meet them. A provision, however, did exist, by which the creditor might secure, for his debt, the proceeds of real estate sold by the Ordinary for partition; and, by pursuing the mode prescribed, the rights of the heirs, as well as of the administrator, were duly protected. — Act of 1842, 11 Stat., 232.
The effect of the decision of the Court will vest this inferior jurisdiction with a large control over the most valuable property of the people of the State. In the majority of the cases of which it will take cognizance, minors will be interested, and in how summary a, manner, and by what machinery their rights will be disposed of, may be seen in the course pursued in the case before us.
Believing that the said Comisare not vested, by the Constitution, with the power, I cannot concur in according it.