Kelly v. Weddle

Smith, J. — David Kelly, administrator de bonis non of the estate of William Anderson, deceased, filed a petition alleging that George A. D. Weddle, the former administrator of said estate, had assets in his hands belonging thereto, and that he had failed and refused to account for or pay over the same to the petitioner as his successor. The object of the petition was to cause said Weddle tobe required to account, on oath, before the Court, for the assets which came to his hands as such former administrator. At the next term of the Court, after said petition was filed, namely, on the 13th of August, 1845, Weddle appeared, filed an account current, and, on the same day the Court made an order requiring the administrator de bonis non, to pay to him (Weddle) 122 dollars and 97 cents from said estate; and, also, the further sum of 25 dollars, for an attorney’s fee. The record then states, that at the May term, 1846, in a proceeding entitled George A. D. Weddle v. David Kelly, administrator of William Anderson, deceased, the “ said plaintiff” appeared, and, on his motion, it was ordered that the said administrator assign, [551] to tbe said Weddle, judgments belonging to said estate to the amount of 122 dollars and 97 cents, in discharge of the order made at the previous August term. W. A. Porter, for the plaintiff. J. G. Marshall, for the defendant. We are referred to article 12, c. 30, R. S,, as the source of the authority of the Probate Court to make these orders. That article authorizes an administrator, and makes it his duty, to cite any previous administrator upon the same estate who may have money or other property belonging thereto in his hands, before the Court to account, on oath; and it empowers such Court, when satisfied that any removed executor or administrator has any such assets in his hands, to compel the payment or delivery thereof to the executor or administrator entitled thereto, by attachment and distress infinite; but it does not directly authorize, nor do we think its purpose and intent requires that it should be construed to authorize, a compulsory order in favor of such removed or retiring administrator against his successor for a balance or debt due by the estate to the former. We, therefore, think both the orders in this case were improperly made. Per Curian. — The proceedings of the Probate Court, subsequent to the filing of the petition, are reversed with costs. Cause remanded, &c.