Margaret Alexander vs. William Stewart and others, 8 G. & J. 226

AkcheR, Judge, delivered the opinion of the court. The object designed by the injunction in this case is, in our judgment, unattainable. The administratrix, de bonis non was appointed by a tribunal having exclusive cognizance of such an appointment, and was in our judgment rightfully appointed such administratrix by the Orphans court. The executor .had not completed the administration, not having paid all the legacies, or delivered over the property in his hands to the persons entitled thereto, without which, there could be no full administration.

Having thus been legitimately clothed with authority by the Orphans court, the law imposed upon her the performance of certain duties, among which, was the duty to take possession of the effects of the' testator, existing specifically; return an inventory thereof to the Orphans court, and distribute the same among the persons entitled thereto, according to their respective rights. With the just, legal, safe, and diligent exercise of this lawful authority and duty, no tribunal could rightfully interfere.

The pretences set up in the bill for such a proceeding, are either destitute of any foundation in the established principles of equity or are removed, if they did exist, by the answer. We propose briefly to examine the allegations on the subject, that we may ascertain the weight to which they are severally entitled. And first, it is proper to advert to the only allegation in the bill, which seems to look to an injunction as the proper consequence. It is alleged that the property will be subjected to danger, because the securities are insufficient for the amount of the bond.

The insufficiency of the security in the administration bond, under certain circumstances, may furnish the proper basis for the exercise of the ancillary jurisdiction of a court of equity, in granting its restraining authority, until the Orphans court can inquire into the subject, and by the exercise of its authority, render all persons interested, secure, by demanding new security. Such a power, in such a case, might be necessary to save the estate from waste or ruin.

But it might perhaps, be doubted, whether the court of Chancery when the Orphans court have exercised this jurisdiction, and there has been no insufficiency of security by supervenient causes, could by the exercise of an original jurisdiction review and reverse what had been done.

But if the jurisdiction of the court of Chancery on this subject be not merely ancillary, but it possesses a power at all times to inquire and determine on the sufficiency of securities, and to adjudge that new security shall be given, such an equity is here distinctly met by the answer, which avers the security to be good, and offers moreover, such security as the chancellor would deem unexceptionable. Again it is averred, that the complainants are in danger of a loss, from the fact averred, that the penalty of the bond taken by the Orphans court is not sufficiently large.

In answer to this, it may be remarked, that the judging of the penalty of a bond, is confided by law to the Orphans court, whose duty it is to take such bond, and that the Chancery court possesses no power to review their determinations ; and possessing no such power this allegation cannot aid the complainants. It is further alleged, that the administratrix can only sub-serve the purpose of a mere ceremony, and will be calculated only to produce delay, and burthen the estate with additional costs and commissions.

Believing as we do, that where property remains specifically, after the death of the executor, and that is conceded' in this case, it is unadministered property, the taking out of letters of administration is not. only demanded by the acts of assembly, but was indispensably necessary to enable the purposes of the testator to be executed, and to give title through the medium of an administrator, to the persons entitled to distribution. We cannot conceive that such proceeding was a useless ceremony.

The costs and commission likely to accrue oh such administration which forms the.subject of complaint, although they will not necessarily be an additional burden to the estate, yet if such should be the case, are the mere legal incidents which are attached to the performance of the duties demanded of the administrator; and cannot legitimately furnish the grounds of any complaint, or create a subject'for redress'by the intervention of the powers of a court of equity.

If it be'conceded that delays are incidental upon an administration, de bonis non, this concession could not aid the complainants, for they are delays in .fulfilment of the acts of the legislature, and necessary to the legal accomplishment of the title, the complainants are solicitous to obtain.

On this subject it has been well observed, that had the avoidance of delay been the great object of the complainants, such object would more certainly have been attained by allowing the administratrix,' de bonis non, to have proceeded in the discharge of her duties, for if it had even been necessary that the estate should have remained in her hands for thirteen months, the distributees would before this time, have been entitled to the delivery over and payment of the property and funds belonging to them. But we apprehend that no such delay could have been necessarily consequential upon this administration.

For after the return of her inventory, if the debts were all paid, it would have been her duty to have paid over the estate in her hands to the persons entitled to it without delay. It appears to have been erroneously supposed by the draft-man of this bill, that it was entirely competent for the admi-nistratrix of Eaton Partridge, to have passed the properly remaining specifically in her hands to the distributees, without the intervention of an administrator.

It is true, if all the debts were paid, they were beneficially entitled to it; but they could not have been clothed with a legal title but through the medium of an administrator, and had their possession been thus acquired, it might have been liable to be divested by the grant of letters subsequently to an administrator, de bonis non. The act of assembly, in express terms, rendering effects specifically existing liable to administration. It is equally clear, that the Chancery court could by no decree have vested the title in them, but by co-operating to accomplish such a purpose through the administrator.

But in this instance wTe cannot perceive the smallest justification for the exercise of such a power. For instead of there being delay on the part of the administratrix, de bonis non, the very complaint is of diligence in the performance of her duties, in her efforts to obtain possession of the property, in which efforts she is restrained by the process in this cause. We are of opinion that the order of the chancellor granting, and the order refusing to dissolve the injunction, were erroneous.

The injunction will therefore be decreed to be dissolved with costs, and the case will be remanded to the court of Chancery. ORDER REVERSED.