Jones v. Plummer ( 1863 )

GtOIDSBorough, J.,

delivered the opinion of this Court:

The appeal in this case was taken from the order of the Circuit Court for Montgomery County, directing the distributive share of Ann Virginia Plummer, in her father’s real estate, to be paid to her surviving husband, William T. Sellman. This appeal was taken not only from the above order, but also from all previous proceedings, that is the decree directing the sale as made by the trustee, and the final ratification thereof.

It will be seen by reference to the dates set out in the record, that this appeal was made too late to affect either the decree or ratification of sale.

The decree was passed on the fourth day of August 1851, the sale was finally ratified on the first of March 1858, and the appeal was taken on the 11th day of March 1859. William T. Sellman intermarried with Ann Virginia Plummer, in April 1858, and she died in September fol-. lowing, the cause being then in the auditor’s hands to be audited. The appellants, on the report of the auditor being filed, assigning to Ann Virginia Plummer her distributive share, filed their petition claiming this distributive share as her heirs at law, and William ¡T. Sellman also filed his petition claiming the sáme as surviving husband of Ann Virginia. The Circuit Court passed its order on the 11th day of March 1859, directing the trustee to pay this share to Sellman, and this appeal was taken at the same term.

It being thus manifest that the appeal was taken more than nine months after the date of the decree and order of ratification of sale, they are not open for our consideration. We are therefore confined to the order of the Court disposing of the fund in controversy. The ease of Hammond & others, vs. Stier, 2 G. & J., 80, is identical with the one under consideration, and the decision in that case is conclusive of this; the order of the Circuit Court must be affirmed.

(Decided Dec. 15th, 1863.)

Order affirmed with cost to appellees.