Bennett v. Bennett , 5 Gill 463 ( 1847 )

MaGruder, J.,

delivered the opinion of this court.

To the appeal which was taken in this case it is objected that it was not prayed in time.

The decree certainly bears date more than nine months before the appeal was prayed. But it appears that before the expiration of the term during which it was passed, the Chancellor passed an order thereby directing that the decree be set aside and annulled, unless cause to the contrary be shown during the first four days of the succeeding term. Afterwards he dismissed the petition, which induced a suspension of the decree, and on the same day the appeal was entered. While the decree was suspended by the Chancellor’s order, the right of appeal did not exist. The appeal then was taken within nine months, after the right is to he considered as having commenced.

This is an application to divide the estate of an intestate, who died seized of lands situated in Montgomery and Frederick counties, it being alleged that some of the heirs were infants, As the real estate to be divided is situated in different counties our act of descents authorises an application to he made to the Court of Chancery. But whether a case of this description be in Chancery or a county court, the proceedings must in all respects be in conformity to the provisions of the act of 1820, eh. 191, and because the proceedings in this, case are not in conformity to the provisions of that law, the decree must he reversed.

The application to the Court of Chancery may be made by hill as well as by petition. Chaney and wife against Tipton and others, 11 G. & J. 255. But the proceedings in the case, are to be regulated by our law of descents. The commission which is to issue, must prescribe the same duties, give to the commissioners the same powers, and require of them the same return. The rights of the heirs must he the same in Chance^, that they arc when the application is made to the county court. In this case the commissioners did not conform 1o the act of 1820, nor indeed did the commission under which they were acting require them to pursue the directions of that act.

DECREE REVERSED WITH COSTS AND CASE REMANDED.