February 16, 1942. The opinion of the Court was delivered by I think that under our Code and previous decisions this action, although it be deemed mainly to marshal the assets of the decedent, could not be prosecuted against the administrators within the administration year. Section 418, Code of 1932, originally an Act of 1789. The pertinent decisions can be found in 15 West's S.C. and S.E. Digest, Executors and Administrators, Key 437, Page 814 et seq. *Page 205
Furthermore, the appellant in her brief twice says that she is not proceeding against assets in the hands of the administrators, so her conception is not accurate that her action is one to marshal assets for surely such an action would have to include property of the estate in the hands of the personal representatives.
It does not appear in the reports of Sheppard v. Green orTemple v. Montgomery, cited in dissenting opinion, that either of these actions was commenced in violation of the time bar of the Act of 1789, which seems inescapably true of the case in hand.
However, pending this action and appeal the question has become a moot one for during such the bar of the Statute has expired by lapse of time. The situation is as was in the case of O'Daniel v. Lehre et al., 1848, 2 Strob. Eq., 83, in which it was said with great clarity:
"Where an executor is sued before the time allowed for ascertaining the debts of the estate, and objects to the prematurity of the suit, his defence is in the nature of a dilatory plea; and the long established practice in this Court is, not to dismiss the bill, but to order the plaintiff to pay the costs, and that the bill stand over. At the expiration of the time allowed to the defendant, the Court proceeds to the hearing.
"There may be cases, but this is not one of them, when the bill may be entertained, even before the time usually limited; as when it is filed to preserve the estate from imminent danger of loss.
"We are of opinion that the decree in this case should have been that the plaintiff pay the costs of the bill; and that the cause stand over; and it is so ordered.
"The cause is also remanded to the Circuit Court. The year allowed to executors having now expired, the Court, when the cause comes again before it, may proceed to order the vesting of a sum sufficient to secure the plaintiff's annuity, or whatever may appear proper under the pleadings." *Page 206
This logical decision seems to have been overlooked in the consideration of subsequent similar cases and no citation is found of it except at page 911 of the annotation upon the subject in 104 A.L.R., beginning at page 892. It seems to me a proper and worthy precedent which should be followed. Hence, I think that in this case the order sustaining the demurrer should be reversed and the case remanded to the Circuit Court for further proceedings, but with costs and disbursements to this time to the defendants, the respondents.
The foregoing, first written as a dissent, having been concurred in by a majority, is the judgment of the Court.
MR. CHIEF JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE G. DUNCAN BELLINGER concur.
MESSRS. ASSOCIATE JUSTICE BAKER and FISHBURNE dissent.