Williamson v. Hill , 6 Port. 184 ( 1837 )

COLLIER, C. J.

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In this case, it appears'fhat Caleb Howell, of the county of Baldwin, died in 'the year eighteen hundred and twenty-four, leaving a will, which was proved and recorded, under the directions of the Orphans’ court of that county, in July of the same year.

In August, eighteen hundred and twenty-seven,- letters of administration, with the will annexed, were issued by the county court of Wilcox, to Lucy M. Howell and Benjamin Williamson, who qualified, by giving bond, &c. Afterward, in July, eighteeiphim-dred and twenty-eight, Benjamin Williamson resigned his administration, and Lucy M. continued sole ad-ministratrix, up to the ninth day of March, eighteen hundred and. thirty, when she intermarried with Joseph Arrington, who afterwards became administrator in her right. In December, eighteen hundred and thirty-four, one of the legatees, under the will of Caleb Howell, applied to the Orphans’ Court of Wilcox, to compel Lucy M., and her husband, as administrator in her right, to settle their administration accounts ; whereupon notices were issued and served upon Lucy M. and Joseph, and such further proceedings had, that that court, on the third Monday in May, eighteen hundred and thirty-five, rendered a final decree against Joseph Arrington alone, and in favor of each legatee, under the will of Caleb Howell, for the sums severally supposed to be due them.

From the decree in favor of the defendant in error, Arrington sued out a writ of error, returnable to the Circuit court of Wilcox, for the successful prosecution of which, Benjamin Williamson and Thomas Dunn 'executed a bond: and, the judgment of the County court being affirmed, the Circuit court rendered judgment against Williamson, Dunn and Ar-rington. To revise this judgment they have prosecuted a writ of error to this court, and here re-assign the errors that were assigned in the Circuit court.

The first and second assignments, suppose the grant of administration to Lucy M. Howell, and Benjamin Williamson, to have been void, — first, because the Orphans’ court of Wilcox had no jurisdiction. Second, because the will of Caleb Howell provided for its own execution, in appointing an executor.

Without pretending to consider the abstract questions of law raised by these points, we think it clear, that they are not available for the plaintiffs. Joseph Arrington coming into the administration in right of •his wife, can not urge the invalidity of an authority, which she had sought, and both had exercised. The jurisdiction of the Orphans’ court was then immaterial-By an acceptance and exercise of the trust, it was admitted, and it is not for the plaintiffs to controvert it. To entertain the objection, would.be to allow them to take advantage of .their own wrong, which the law will not tolerate.

In the third and fourth assignments it is further insisted, that the judgment is erroneous, because the notice required upon the settlement of estates, has not been given; and further, because the decree should have been in favor of the subsequent administrator.

It is not for the plaintiffs to object to the irregulariity of notice, which was not intended for the advantage of the personal representative, but for the benefit of creditors, distributees, &c. The administratrix and administrator were cited, filed their accounts, and so far as they are concerned, the proceeding in this respect, is free from objection.

In regard to the decree being in favor of the legatees, this is expressly authorised by statute.^* Besides, it does not appear, that there was any other representative of the estate of Caleb Howell, after the grant of administration to Lucy M. was revoked.

In the fifth and sixth assignments, the decree is further objected to, because it does not charge Lucy M. as well as her husband, Joseph Arrington, and because it is rendered for too large a sum. '

By the marriage of a feme sole administratrix, the husband becomes joint administrator with her :^† and if the husband sue or be sued, as administrator, the wife must be joined with him.^‡ But, in cases where the administrator may be charged in his own right, the action lies against the husband alone.^§

The present case is clearly not of the latter description. It is a proceeding against the husband, in his representative character, to which the wife was a necessary party; and if essential to its legality, that she should be joined, no decree can be regular, which does not embrace her. And for this omission, the judgment of the Circuit court is reversed: and as the administratrix is not before this court, so as to enable us to render the proper decree here, the cause is remanded. ' '

There is nothing in the récord, from which we can discover that the decree is rendered for too much.

* Xikin’s Digest, (first edition,) 252, sec. 37.

† 7 Mass. Rep. 510..

‡ 2 W’ms on Ex. 632; 1 Hayvv. R. 16; 2 Saund. on Pi, and Ev. 572.

§ 2 Saunders on Pleading and Evidence, 572.