Ewing v. Moses

McCay, Judge. 1. Under our law a temporary administrator is appointed by the Ordinary, to hold, not simply to the next term of the [265] Court, but until permanent letters are granted. He gives bond for the faithful performance of his trust, and may, at the discretion of the Ordinary, even sell personal perishable property: Code of 1873, sections 2487, 2488, 2554. It often happens that the estate remains in his hands for years, and it would be a great evil if it were not his right as well as his duty to bring a suit, if necessary, to collect and take care of the assets. Our present law, providing that the temporary letters shall hold until permanent letters are granted, assimilates the office to the limited administrations in England. An administrator pendente lite, might, even in England, sue : 1 Williams on Executors, 411. There might, perhaps, be some objections to a suit by an administrator appointed in vacation, to hold only until term time. But a general appointment pendente lite, is of a more permanent character, and carries with it, even in England, the right to sue. 2. In the great extension made by our Legislature of the jurisdiction of Courts of law over matters cognizable formerly only in a Court of equity, it is often very difficult to determine whether a particular matter, formerly perhaps of exclusive equity jurisdiction, has not become, by the new law, solely of legal cognizance. By our law now, any subject may be brought before a Court of law for adjudication, and such Court is authorized to do almost anything a Court of chancery might do, and the reply to a bill, that there is an adequate remedy at law, may be made with some show of truth, in almost any case, and yet it is clear that it is the legislative will that a Court of equity, with very large jurisdiction, shall form part of our “system of Courts. Perhaps the true line of distinction is that where a definite, specific remedy is given at law, as a writ of partition or garnishment, or petition to foreclose a mortgage, or assert a lien, the jurisdiction-of equity is ousted, unless there be some peculiar complication ; but when the matter, formerly of equity jurisdiction, has become cognizable at law only by virtue of the general provision permitting parties to seek remedies at law at their option, the jurisdiction of equity remains if the party sees fit to> [266] go there. We do not, however, lay down this as the settled rule, though I am myself strongly inclined to the opinion that it is the proper one. Legislation is very desirable upon this subject. The General Assembly has opened the door very widely for equitable relief at law, and whilst the rule still exists that a Court of equity has no jurisdiction if there be an adequate remedy at law, there must necessarily be embarrassment in applying the rule. As to the particular case before us, the power of a Court of equity to hear and determine it would, by the old law, be very clear. It is a demand upon a trustee for an account; a demand upon an administrator for a settlement. True, the parties at interest may sue at law; one heir at law, or distributee, or creditor may bring an action. The executor, administrator or guardian may be compelled to account before the Ordinary. But, by section 2600, (Code, 1873,) a Court of equity is distinctly, and in terms, declared to have jurisdiction over the settlement of accounts of administrators. The settlement of the account is the prime element of the present suit. It depends upon that whether any of these parties are liable, and we think a Court of equity having jurisdiction for that purpose may go on and give full .relief in the premises. .Judgment affirmed.