Executors of Sankey v. Heirs of Sankey

ORMOND, J. The supposed error, in issuing the citation to 'the executors at the instance of the husband, if true, cannot avail, fey the appearance of the executors, and submitting to account, they mrfst be understood as waiving any objection to the citation. We do not think there was error in permitting the settlement 'to proceed after the death of the wife, at the instance of her husband, as her administrator. It cannot be doubted that the intention of the legislature was, that no action or suit should abate when the cause of action survived. That it was intended that the act should extend beyond suits commenced in the ordinary inode, appears from the employment of the terms, “plaintiffpeti-tioner or defendant.” [Clay’s Dig. 313, § 1.] But if the case was not within the letter, it is clearly within the intention of the act as the mischief of an abatement from the death of one of the parties, would be quite as great in this proceeding, as in the case of an ordinary suit in a court of common law. The fact that the administrator of the wife was made a party, had no other influence on the proceeding, than to cause the decree for the share of the wife, to be made in favor of the adminis-' trator, instead of being made in favor of the husband and wife, if she had lived. The attempt of the court to distribute the esstate of the wife, upon this settlement of the estate of her former husband, was irregular and void. No judgment or decree could be made on this proceeding, which did not relate to the estate of J. S. San-key. The estate of Mrs. Elsbury can only be distributed in a proceeding between her administrators and distributees. It is not necessary, nor would it be proper at this time, to consider the effect or propriety of the decree made by the orphans’ court on the 15th February, 1843, by which the executors were required to deliver to Elsbury and his wife, the slaves bequeathed to her. That question will be properly presented on the settlement of his administration of his wife’s estate, if her distri-butees should insist that the slaves were not reduced into possession before the death of the wife. The court also erred in proceeding’ to make a final settlement of the estate, without appointing a guardian ad litem for Anne Sankey, infant daughter of the deceased, if she had no general guardian. There was also error in rendering a decree in favor of the future guardian of the minor, to be afterwards appointed. If a [611] guardian had been previously appointed, the decree should have» been in favor of the infant. The proceedings appear to be regular, down to .the ascertainment of the amount in the hands of the executors, the decree of' the court only, is therefore reversed, unless the guardian of .the minor, to be hereafter appointed, should desire a reinvestigation of' the accounts of the executors. The-decree of the orphans’ court is, therefore, reversed, and the cause remanded for further pro?, ceedings, in conformity with this opinion.