Where a decree is passed by the court below against an executor,
being the defendant in a chancery suit, and before an appeal is
prayed the executor is removed by a court of competent
jurisdiction, and an administrator
de bonis non with the
will annexed is appointed, all further proceedings, either by
execution or appeal, are irregular until the administrator be made
a party to the suit.
If an execution be issued before the proper parties are thus
made, it is unauthorized and void, and no right of property will
pass by a sale under it.
The administrator cannot obtain redress by application to this
Court, but must first be made a party in the court below. This may
be done at the instance of either side.
After he is thus made a party, he may stay proceedings by giving
bond, or the complainants may enforce the decree if the bond be not
filed in time.
It is not clear that a complainant who has appealed from a
decree in his favor, in the hope of obtaining a larger sum, can,
pending the appeal, issue execution upon the decree of the court
below.
Page 42 U. S. 284
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This case is brought before the court by the petition of Vincent
M. Benham, administrator
de bonis non with the will
annexed of Samuel Savage.
It appears that a bill was filed by William Taylor and others,
in the District Court of the United States for the Northern
District of Alabama, against George M. Savage, executor of Samuel
Savage, deceased, to which the defendant appeared and answered.
Testimony was taken on both sides, and at the final hearing on 28
November, 1842, the court decreed that the complainants recover of
the respondent, as executor of Samuel Savage, $5,212.92 and costs,
to be levied of the goods and chattels, lands and tenements of the
said Samuel Savage. On the same day, the Orphans' Court of
Lauderdale County, in the State of Alabama, having competent
jurisdiction for that purpose, removed the said George M. Savage
from his executorship and appointed Vincent M. Benham, the
petitioner above mentioned, administrator as aforesaid.
Huntsville, where the district court of the United States held
its session, and Florence, where the Orphans' Court of
Lauderdale
Page 42 U. S. 285
County was in session, were distant from each other between
seventy and eighty miles, and the new administrator, Vincent M.
Benham, does not appear to have known of the decree until some days
after it was passed. At the time of the decree, Harvey Dillahunty
was attending to the suit in chancery as the attorney in fact of
George M. Savage, the respondent, and two days afterwards, that is
to say on 30 November, 1842, in the name of the respondent, prayed
an appeal, and the district court, with the consent of the
complainants, passed an order giving the said George M. Savage
liberty to file an appeal bond at any time within twenty days from
the adjournment of the court. On 2 December, the complainants also
appealed, and on the same day gave the usual bond to cover costs,
which was duly approved, and the transcript of the record and
proceedings had in the cause in the district court have been
transmitted to and docketed in this Court in the names of the said
William Taylor and others, complainants and appellants, against the
said George M. Savage, executor of Samuel Savage, respondent and
appellee.
The executor having been removed as aforesaid, no bond was
executed by him nor by Vincent M. Benham, the administrator, within
the time limited by the court, and therefore an execution was
issued by the clerk of the district court against the property of
Samuel Savage, by virtue of which the marshal has seized the
property of the said deceased, and is about to sell the same in
order to satisfy the decree.
In this state of the proceedings, Benham, the administrator, has
filed his petition at the present term, setting forth the facts as
above mentioned and offering to file a transcript of the
proceedings on his part and to give security on his appeal, and
praying that his bond may be approved by this Court, and the
execution issued by the complainants superseded until the appeal
can be heard and decided in this Court. Affidavits have been filed
on both sides, but there is no conflict between them in any
circumstance deemed material by the court, nor do they vary in any
important particular from the statement contained in the
petition.
We are by no means prepared to say that a complainant, after
having appealed from a decree in his favor, can be permitted,
pending the appeal, to carry into execution the decree which he is
seeking to reverse in the appellate court in order to obtain a
Page 42 U. S. 286
decree for a larger sum. But the relief asked for by the
petition cannot be granted, because there is no case legally in
this Court upon the appeal of either party upon which process can
be issued. The decree in the circuit court is against George M.
Savage, executor of the last will and testament of Samuel Savage
deceased. There was no other party respondent in the district
court, and the decree was passed against him in his representative
character. Before the appeal was prayed on either side, he had
ceased to be the representative of the estate of Samuel Savage, and
had no control over it, nor any right to interfere with it by
prosecuting or appearing to an appeal or in any other manner. By
his removal from the office of executor he was as completely
separated from the business of the estate as if he had been dead,
and had no right to appear in or be a party in this or any other
court to a suit which the law confided to the representative of the
deceased. No further proceedings, therefore, could be had on the
decree in the district court until Benham, the administrator
de
bonis non, was made a party.
In this view of the subject, it follows
1. That the appeal of the complainants is not regularly before
this Court, and the irregularity cannot be cured here unless the
administrator voluntarily appears to it. The case may, however,
upon the application of the appellants, be remanded to the district
court with leave to make the proper parties.
2. The execution issued on the decree was unauthorized and void,
and no right of property will pass by a sale under it if one should
be made by the marshal.
3. The appeal of Benham, the administrator
de bonis
non, is also irregular, and the case cannot be brought here by
him unless he is first made a party in the district court.
But he may be made a party there, either upon his own
application or that of the complainants, according to the rules and
practice in chancery proceedings. And when this has been done, the
administrator may take an appeal, and upon giving bond within the
time prescribed by law, all proceedings upon the decree will be
stayed in the district court until the decision of this Court shall
be had in the premises. And if he fail to give the bond within the
limited period, the complainants will then be entitled to process
from the district court in order to enforce it. As the
Page 42 U. S. 287
case now stands, there is no suit here upon which this Court can
found any process to set aside the execution improperly issued, and
the petition of Benham, the administrator, must be
Dismissed.
Order
On consideration of the petition of Vincent M. Benham, filed in
this case, and of the arguments of counsel thereupon had, it is now
here ordered by this Court that the said petition be and the same
is hereby dismissed.