Charles Offutt and Henry Clagett vs. William C. Gott, 12 G. & J. 385

Doesey, J., delivered the opinion of this court. The appeal in this case has been well taken. The 9th

section of the act of 1798, chap. 101, sub chap. 2, provides, that if any person caveat a “will or codicil respecting personal properly or appointing an executor,” the caveat shall be decided by the orphans court. By the 11th

section of the same act and sub chap., it is enacted, that either party conceiving him or herself aggrieved by the decision of the said court, relative to the probat, may enter an appeal; and that such appeal shall stay further proceedings of the orphans court; and that the decree of the court appealed to shall be final and conclusive. To grant letters testamentary thereon, pending the appeal taken from the decision of the orphans’ court, is

an act clearly prohibited by the act of Assembly referred to. Nor does the reason assigned by the orphans’ court for its decree, give to it the slightest support.

The appellate court, by which the decree for admitting the will to probat was to be reviewed, was to sit in less than one month from the time of awarding letters testamentary, and were bound by law to determine the appeal during its approaching session, so that there was no foundation for the reason assigned by the orphans court for their decree appealed from in this case, that great injury would result to the estate of the deceased by the delay of the Court of Appeals in deciding on the appeal.

Nor was there any ground for the apprehension of injury to the estate, had the delay referred to, actually occurred, which the granting of letters testamentary was necessary to prevent; as there was no act, which, under the circumstances of this case, the orphans court ought to have authorised or required at the hands of the executor thus commissioned, which the administrators pendente lite were not equally competent to perform. Neither can the acts of the orphans court complained of, be sustained under the 19th

section of the 15 sub

chapter of the act of 1798, chap. 101, as the granting of letters testamentary was not in the case before us, a proceeding therein, “which may with propriety be carried on before the appeal is decided.” The court will sign a decree reversing the decree of the orphans court, with costs to the appellants in both courts. DECREE REVERSED WITH COSTS.