The Lancaster ledger. [volume] (Lancaster, S.C.) 1852-1905, 1860-07-04
Law Intelligence.

W Wv" ''HhSs' granting leuefS Cf adj
IN nistration pendente lite to certain ap.
| plicants upon the Estate Of William Nc.
k"nna, deceased, has gust been announ-
ced. lnasmuch rs the question is a new
one and has elicited much difference of
opinion fer the benefit and interest Of the
| legal fraternity, We publish below the able
| op'nion OF his Honor, Judge Glover. One
OF the points made by the qapel!ante, was,
that the Ordinary had no right to graft let
ters Of administration qenden:e lts il qgy
case that our Act of 1889 defined the ca
ses, and th0Ge only. in which he is authori.
zed iG issue letters of administration. The
opinion below does not sustain this point,
but holds that the case in question was not
such an one rs required or allowed the or.
der made by the Ordinary.
c. b, Northrop, ct. al. Executors, Us. S. B.
Massey, et al.
The late William McKcnna ic;, nt his
death, a last Will, which vas admitted to
probate IN common form AMI letters ies,a-
! ment2ry, wee issued to G.. b. Northrop,
| 7. =. Relk and }. J. OConnell, who were
|
| wards, on the petition of persons interest
ed, it was required, that the Will should be
| proved per teStes, and, at the hearing. the
Ordinary pronounced against the validity of
the win and refused to admit it to Groba;e
in due form of law. From this determine.
tion Of the Ordinary the prryiOuB appoint
cd Executors appealed to The Circuit Court,
of common Pleas, which appeal il still
pending. After his decision 2garst the
! validity Of the WIZ. the Ordinary granted
| letters of Administration on the effects o. +
| Wiliiali Mckenna, pendeHte lite. to S. b
| Massey, D.%nn Barnes, Willl,nl Ss-yens
| and J. a Cunningham e. y. Norihrop.
| II. M. Bclk and J. J. O'Cohnell, have ap
| Pealed from this judgmeat, that the ordina.
ry has nopower to gran. letters testamcn.
| tary, pendent: lite, IN such cuse
When the right to administration is in
controversy, it vas never doubted that the
Ordinary could appoint an administration
peadenie lie, and aimee the case Of Waiter
vs. Woolaston q p Virus 576) he may
grant such temporary administration touch.
ing Will or exccutorship (Slaughter VS.
Nav, | Silk. 42)
The grant of administration, pending
litigation respecting Viii, is generally
made in those cases where there has been
no probate of the viii nor grant Of letters
tcs;am"ntary the contest involving the
fron! o: the VIII or the execurOrship in
lhe hrst INSTANCE ; o., in the language Of
\, !. Mari hal' whore ''it ii ~; Ger.a,a ihxt
there is an executor, or that there il Il
Will'-[Gritfith vs. Frazier, Cranch, 25)
But where the Will is proved and the en-
ccu,or has been qualified, grant Of admin
straton afterwards either limite 4. temporl-
n lhanlu,n ia npl..
ton Of the letters testamentury. IL is ar.
gued that the subsequent not of the Ordi.
nary refusing To admit the v III TO probate
III solemn form rendered the persons, who
had before received letters testampntary.
Incapable 20 perform all acts necessary 10
the full management Of the estate If the
determ!paiion OF the Ordinary r"uching the
there had been no appeal from his art,rmi.
nn;ior, the Ordinary had jurisdiction TO np
poin. no. u temporary, but an absolute al
mlnistration but, as there is an appeal
now pending. is that such litigation re-
specting the Will as authorizes the grant of
administration pendente lite g.? What is said
in l.eotw 3i2. respecting the necessity Of
such administration dUrdnte O6Sentid of nm
executor will equally apply in al cases of
Temporary gdministration, that it II nece-
sary TO preyrn, the grand Inconvenience
that would ensue il the dGGtS OF the de
ceased could not be recovered during suah
absence" The question made in this case
il, can the Ordinary grant administration
pendenHe lite after his decision against the
validity Of the VIII, or admitting it to
proof in solemn form, and while an appeal
from his decision is pending to the Court
of Common Pleas? II the appeal were
from his decree, refusing probate in the first
instance, his jurisdiction would be admit.
ted {; bnt the executors have letters teSta-
mentary, und does such appeal either de
strov or suspend their authority If there
had been no appeal his grant of admins.
tration should have been absolute but as
ihere is one, it does not. in my opinion,
suspend the authority or affect the title Of
the executors, and they may perform all
acts incident TO their executorship until the
final adjudication of the appeal in the Court
of Law. The Act of 1889 Il Stat. Sc, Sec.
xi) provides, that VIII admitted TO pro-
bate in common form shall be good unless
tire paper shall be pronounced to be lnvul
i'd as a VIII, and that any person or per.
sons who think themselves aggrieved by
any Judgment, sentence, decree, &c of the
Ordinary. may appeal therefrom 10 the
Court of Equity in matter of account and
in all other cases to the Court of Common
Pleas, Cling suggestion setting out the
judgment, &c, and posting the usual thirty
day rule 20 plead land such issue shall be
made up in law CT fact Gs may be necessary
or proper, and sl.sll ie tried according To
the usage and pTqctice Of the said Court"
Before final judgment in the C0urt where
the appeal goes can it be said that the Will
is invalid The provisions Of the Act OF
1889 seem to regard the steps taken In
the Court of Ordinary az preliminary TO the
making up of an issue Of law or fact to be
tried in the Court of Common Pleas, aud
the conrSe by suggesionis is expressly inten
ded to accomplish this purpose The case
ia heard de nOp0 in the latter Court, aDd
where those interested ave dissatisfied with
the Ordinary's Judgment, they may be sad
to present new case for trial rather TRAN
to nppealfrcm one adjudicated. Before the
| Act of 1889, the practice prevailed in orr
Courts of hearing appeals from the Ordina.
ry de sOrO Crawford vs.. Elliott, Bail X.
l ID h. hail hnr Ia