Howard v. Gregory

Blandford, Justice. Howard became the administrator de bonis non of the estate of Benjamin Gregory, deceased, and became also the administrator of Elizabeth Gregory. Having reduced the property of these two estates to money, he cited the heirs at law of Benjamin Gregory and the heirs at law of Eliz abeth Gregory to a settlement before the court of ordinary. They appeared before the court of ordinary, and by consent, the two cases of Howard, administrator of Benjamin Gregory, and-Howard, administrator of Elizabeth Gregory, were tried together in that court. An appeal was taken to the superior court, and by the same consent, the two cases were tried together in the superior court, and a mistrial was had. The case came on for a further trial, and Benjamin Gregory, Jr., and Elizabeth Sims moved to try the two cases together again. This was objected to by Howard, the administrator. The court overruled the objéction, and directed the two cases to be tried together. The trial was had before á jury, and the jury found a verdict in favor of Elizabeth Sims and Benjamin Gregory, Jr. A motion for a new trial was made upon several grounds, the main grounds being that the court erred in directing the two cases to be tried together. 1. The two cases could only be tried together upon an order consolidating them. These parties, however, had consented that they should be tried together in the superior court, and also in the court of ordinary; and it may [619] be very fairly inferred that, although no order was taken consolidating them, the parties in effect did what ought to have been done. The cases involved what was due the heirs at law of Benjamin Gregory, deceased, and the heirs at law of Elizabeth Gregory, the wife of Benjamin Gregory, deceased, the heirs at law being the same in both cases; and we do not see very well why the cases should not have been tried together. The only point insisted on by the caveators, Benjamin Gregory, Jr., and Elizabeth Sims, was, that the money returned by the administrator, Howard, as belonging to the estate of Elizabeth Gregory, really and in fact belonged to the estate of Benjamin Gregory. We do not think that the court erred in trying the two cases together, if indeed he did try them together. The jury found that the money belonging to the estate of Elizabeth Gregory, according to the returns of the administrator» belonged to the estate of Benjamin Gregory, deceased, and was to be distributed under that estate; the difference being that some of the heirs at law of Benjamin Gregory, deceased, had advancements made to them, while Benjamin Gregory, Jr., and Elizabeth Sims, the caveators in this case, contended that no advancements had been made to them, and therefore they were entitled to a larger amount than the heirs at law of their father, Benjamin Gregory. A great deal of testamony was had upon.this question. 2. It appears to us that the case was fairly tried by the judge of the superior court, and that the jury found a verdict which was supported by the evidence. It does not appear to us that the judge committed any error of law. We do not see any reason why a new trial should be granted, and none has been suggested in the argument of counsel before us. Justice has been reached by the verdict, and we think there ought to be an end to this litigatiop. The estate is very small. Mr. Howard, the administrator, has not been ordered to pay out anything that he did not have in his hands; nobody is complaining in this case but him. None of the other heirs at law, who were [620] cited to appear to defend this or witness this settlement, make any complaint whatever. What may be the effect of the judgment rendered in this case we do not at this time pass upon; it is not before us. Judgment affirmed.