delivered the opinion of the court.
This was a petition, filed in the Probate Court of Covington county, by Thompson, praying distribution of the estate of his deceased wife, in the hands of Hargroves, her administrator. The petitioner alleges, that he was lawfully married to the intestate, who afterwards died, leaving the only issue of the marriage, a child, who is since deceased, and upon whose death, all the estate of his wife, which descended to the child, vested in the petitioner; that the wife of the petitioner was entitled to certain property and credits, which had come to the hands of her administrator, and of which distribution is claimed by the petitioner, as heir and distributee of his deceased child, the issue of the marriage.
The answer of the administrator denies that the petitioner was legally married to the intestate, because the license under which *214the marriage was solemnized was issued by a clerk, who had no authority to issue-it; and the marriage took place when the intestate was a minor, under the age of eighteen years, and without the consent of her mother, or of her legal guardian. He insists that the brothers and sisters of the intestate are the- persons entitled to distribution of her estate; and states that a part of the property subject to distribution is not now in his hands, but that a suit is pending for its recovery, and that he cannot make distribution until that is determined.
Upon the hearing upon petition and answer, distribution was ordered, and commissioners appointed to make it under the statute ; from which order this appeal is taken.
The first objection taken to the proceedings is, that it is not alleged by the petition, nor does it otherwise appear, that administration of the estate of the intestate was granted by the court in which the petition for distribution was filed, and, therefore, that no jurisdiction is shown. If the application for distribution could be properly regarded as a purely original proceeding, this objection would probably be tenable. But we think that it should be regarded rather as incidental to the jurisdiction vested in the court, by the grant of administration. It is but a continuation and consummation of the administration, and could not be made except by the court that had granted administration; and therefore the petition does not, and need not expressly show, that administration was granted by that court. It must be understood to have been granted by that court, and this presumption should prevail, unless the contrary appear, by objection taken in the court below.
The next objection is, that the marriage of the petitioner with the intestate was illegal and void; it having taken place without a legal license, such as is required by our laws, and without the consent of the mother, or legal guardian of the intestate; she being under the age of eighteen years. It is admitted, that by the common law the marriage would have been valid, under the circumstances stated in the answer. But it is said, that this rule is changed by our statutes, (Hutch. Code, 492,) and that it must be understood that the legislature intended, by those enactments, *215that no marriages should be valid, unless solemnized in the manner thereby directed.
It will be observed, that there is nothing in these statutes directly rendering marriages conducted without the observance of the rules therein prescribed, illegal and void; and the rule which has been sanctioned with reference to marriages not solemnized according to statutory regulations is, that even prohibitory words in a marriage act will not authorize an inference of the nullity of the marriage, unless the nullity was declared by the act. Catterall v. Sweetman, 1 Roberts. Eccl. Rep. 304. And, although persons, who may violate the forms required by the statute in solemnizing marriages, may be liable to the penalties prescribed for noncompliance, yet, marriages contracted without a conformity to such regulations, are very generally held to be valid, if made be- . tween parties capable, by the common law, of contracting them, unless the statutes positively declare, that marriages not conducted in conformity to their provisions shall be void. 2 Greenl. Evid. § 460; 2 Kent, Comm. 90, 91. We think that this is the proper construction to be given to our statutes on this subject, which appear to be similar in their provisions to the statutes of other States in which this construction has been adopted.
Another objection to the proceedings is, that distribution should not have been awarded to the father, as next of kin to the child, but to the administrator of the child.
It is plain, that the petitioner was entitled, as next of kin to his child, and there could be no possible necessity for administration upon the child’s estate, as it died within two months after its birth, and could have contracted no debts, nor created any charges upon its estate. Being the only issue of the marriage, the father became entitled, as distributee, of its estate, and was entitled to demand it without the unnecessary expense of an administration.
The last objection is, that no refunding bond was tendered by the petitioner, which was necessary, in order to entitle him to demand distribution; the estate not being finally settled. This objection would have prevailed, had it been taken in the court below, by demurrer or otherwise. But no such objection appears to have *216been taken, and we may well presume, that it was in fact tendered, although a tender was not set forth in the petition. After having failed to object on that ground, in the court below, it is too late to insist upon it as ground of error here; when, if raised below, it might have been obviated.
Let the decree be affirmed.