THOMASON and HAYNES, ex'ors vs BLACKWELL, 5 Stew. & P. 181

SAFFOLD, J. An action of assumpsit having-been instituted in the Circuit Court, against Thoma-son and Haynes, as executors of John B. Blackwell, deceased; whilst pending, the estate of the said, deceased was represented insolvent, and the claim referred to commissioners, appointed by (he Orphans’ Court, to audit such claims, or to the Jailer Court, acting in that capacity.

The Court having taken upon itself the doty of auditing the claim, it was agreed by-the parties, with the assent of the Court, that this demand should he submitted to a jury in the County Court; and that their verdict, and the judgment thereon, should determine the claim, and be reported accordingly. A jury haring been impanneled and sworn, the trial was had, when a verdict and judgment were rendered against the executors, for nine hundred and forty-nine dollars and thirty-seven and a half cents.

After many continuances for a hearing and final settlement of the estate, and due notice given, the Orphans’ Court met for the purpose, when Haynes, one of the said executors appeared, in Court, and filed his resignation in writing. Then, the counsel for the claimant having’ rno/ed the. Court to reject the resignation, by consent of the said Thomas Haynes, and of the parties, the case, was continued, until a future day.

On the subsequent day, to which the healing had been adjourned, the record states, the Com fc proceeded to the final settlement, (nothing further being said of the proferred resignation;) when, on auditing the various claims, it was found, that the estate was not insolvent, but, that after settling the other demands, there remained in the hands of the executors, a larger amount than that ascertained to be due this claimant — whereupon the Court decreed payment in his favor, for the sum due.

The only ground of error insisted on, is, that the Court decreed payment against the executors, after the alleged resignation of one. The question is believed to present but little difficulty ; and as no authority of doubtful construction was read, in argument, the subject requires but a brief notice.

The right of executors, &c. to resign their authority, by writing, subscribed and delivered into the clerk’s office, is expressly declared by the statute but the provision is equally explicit, that, in such cases, they or their securities, “shall be bound for all the assets or effects, which shall not have been duly administered or applied, or shall not be delivered to their successors.” . On principle, the responsibility could not be otherwise.

By a due course of proceeding, it had been aseer-tained, that the estate was indebted to the complainant in a certain sum; further investigation was about to bo liad, to determine if the executors were not char.>i cable with the same, on account of assets in their hamle — at this sirgo, ouo of them would resign Jus authority, to defeat the decree; but, according to the statute, referred to, such inequity is not tolerated, even if the resignation had been formally made, without objection.

Both the executors had accepted the trust, and continued in the exercise of it, until they had incurred the liability, for which they were then required to account — proceedings having been instituted against them, and so far prosecuted, as to require only the consummation of' a final decree, and the Orphans’ Court being the most appropriate tribunal for the settlement of estates, neither law nor equity will countenance the artifice resorted to, as the means of evading or delaying justice.

What would have been the consequence of a resignation, at an earlier stage of the administration, it is not now material to enquire. There is another view of this case, which appears equally decisive, in fov :: of the creditor.

The resignation was tendered to the Court, not filed in the clerk's office, and pleaded as a matter of defence— nor does the Court appear to have made any decision upon it: after the objection to its acceptance was made, a decision upon it, by the Court, appears to liave been prevented, by the continuance of “the case,” by the consent of the resigning executor, as well as the other parties to the controversy. This continuance must be viewed as a postponement, by consent, of the whole matter in contest — as well tlie preferred resignation, as the litigated claim.

On the subsequent day, when the Court again or-ganised, uo farther notice appears to have been taken of the resignation, either by the Court or the executor, who had tendered it. What would have been the decision of the Court upon it, if still relied on, can only be matter of conjecture: and, as not insisted on, it may be presumed to have been abandoned or waived. From these views, wc are of opinion, the judgment or decree must be a/Frnned, Aik. Dig. 179.