#### *Jane E. O'Daniel*v. *Thomas Lehre, late Ordinary, et al.*

Charleston,

April, 1848.

'' Where an executor is sued before the time allowed for ascertaining the debts of the estate, and objects to the prematurity of the suit, his defence is in the nature ot a dilatory plea: and the long established practice in this Court, is hot to dismiss the bill, but to order the plaintiff to pay the costs, and that the bill stand over. At the expiration of *the time*allowed to the defendant, the Court proceeds to the hearing.

*Before*Dunkin, Ch. *at Charleston, June Sittings,*1847.

His Honor’s decree states all that is necessary to the under-. standing of the preliminary point, which was alone decided in this case.

Dunkin, Ch. Mrs. Susan S. Wilson, the testatrix, died in December, 1846. This bill was filed on the 15th May, 1847, about five months after the decease of the testatrix. Mr. Lehre, the former Ordinery, had taken possession of the estate under the provisions of the Act of 1839, and was about to administer the same under the authority of the Act of December, 1846. His term of office expired, and Dr. Mendenhall succeeded to his rights and duties, among which was the administration of Mrs. Wilson’s estate.

*84The cause was heard on the bill and answers. On the part of the complainant it was insisted that under a proper construction of the Act of 1846, the duty of the Ordinary had ceased; that the Court ought to direct him to transfer the assets and funds to one of the Masters, by whom the same should be administered according to the provisions of the will, and under the direction of the Court.

I think that under the Act of December, 1846, the rights and duties of an executor are cast upon the Ordinary. It is not certain that he would be exempt from suit for nine months; but this seems to me a necessary protection. Twelve months are allowed to creditors to present their *demands;*and no legal representative ought to consent, much less be compelled by the Court, to distribute an estate among legatees, until time has been allowed for those who have higher claims, to interpose their objections.

According to the answer of Dr. Mendenhall, which stands for proof, he has done all that could be required of him, and the complainant has no ground on which to ask for the aid or interference of this Court. The time may come when she will be entitled to implead the defendant on the matters set forth in the bill.

This is the first occasion on which it has become necessary to give construction to the Act of 1846. There were circumstances, too, arising out of the change in the incumbents of the Ordinary’s Office, which may have induced the complainant to suppose that the precautionary authority of this Court could be properly invoked.

*It is ordered and decreed,*That the bill be dismissed, but without costs atad without prejudice.

The plaintiff appealed, on the following grounds:

1. Because, at the time of filing the bill, the estate in which complainant had an interest as legatee was in jeopardy, and it was essential to the final enjoyment of her interest under the will of her testatrix that this Court should interfere to preserve the property, inasmuch as it was then and now uncertain whether the securities of either, and if of either, which of the two Ordinaries were responsible for the management of the estate of the testatrix Susan S. Wilson.

*2.*Because any legatee or party interested in an estate, is justified to implead minors whose rights are in jeopardy, so as to commit their interest to the supervision of this Court.

3. Because the amount of the estate in this case so greatly exceeded the security given by either of the Ordinaries, that any party interested in the preservation of the estate was authorized to seek the aid of this Court in securing the fund, which were neither in the hands of the executor having the confidence of the testatrix, nor an administrator having given adequate securities.

*854. Because, by the report of the Master, the debt of the estate did not exceed a thousand dollars, and as all the parties interested in the estate, except the creditors, were before the Court, and their interests could be effectually protected by this Court before distribution, there was no further use for either of the Ordinaries, and the estate ought to have been brought into Court.

5. Because the Act of 1846 and that of 1839 being made in *pari*materia, should be construed together, and from the scope and character of their provisions, the action of the Ordinary was founded on the necessity of protecting a derelict estate, and as soon as all the parties in interest were before the Court, no necessity for further action by the Ordinary existed, and he should have been decreed to deliver up the estate.

6. Because if the Ordinary was in fact an executor named by the testatrix, there was a perfect right in complainant to file her bill to secure the support provided for her, and to bring the infants into Court for protection and support, and the fact that a support was provided for them is proof of the necessity of the bill. Creditors cannot sue until after nine months for debt, but legatees can at any time seek the protection of the Court.

7. Because all the facts and circumstances of the case entitled the complainant to have her bill entertained, and her right under the will of Mrs. Wilson sustained.

Benj. F. Hunt, for the complainant.

Petigru & Lesesne, for defendant Lehre.

Bailey & Brewster, for defendant Mendenhall.

Johnston, Ch.

delivered the opinon of the Court.

Where an executor is sued before the time allowed for ascertaining the debts of the estate, and objects to the prematurity of the suit, his defence is in the nature of a dilatory plea; and the long established practice in this Court is, not to dismiss the bill, but to order the plaintiff to pay the costs, and that the bill stand over. At the expiration of the time allowed to the defendant, the Court proceeds to the hearing.

There may be cases, but this is not one of them, when the bill may be entertained, even before the time usually limited; as when it is filed to preserve the estate from imminent danger of loss.

We are of opinion that the decree in this case should have been that the plaintiff pay the costs of the bill; and that the cause stand over: and it is so ordered.

The cause is also remanded to the Circuit Court. The year allowed to executors having now expired, the Court, when the cause comes again before it, may proceed to order the vesting of a sum sufficient to secure the plaintiff’s annuity, or whatever may appear proper under the pleadings. It may *86fee proper, too, if desired, to direct an enquiry whether the piainti£’s specific legacies hare been delivered to her. But we will not anticipate what decree may be required in the case.

It is ordered, that the Circuit decree be reformed agreeably to this opinion.

Caldwell, Ch. and DargaN, Ch. concurred.

*Decree reformed.*