Findlay v. Whitmire

By the Court.

Starnes, J.

delivering the opinion.

[1.] We are informed that the first reason assigned for the dismissal of this appeal, in the Court below, was that there were Mo parties before the Court. We incline to think, that under the Act of 1805, (Cobb's N. D. 283,) an appeal would lie from, ■the refusal, by the Court of Ordinary, of an ex parte application, made by an executor or administrator. This would seem but a fair and reasonable construction of that Statute ; and wo believe that it was the contemporaneous exposition of the same. The language of the Act of 1851, constituting the Court of Ordinary, as at present organized, is similar, in terms, and will, we think, admit of the samo construction.

[2.] Rut it is unnecessary for us, formally, to decide this in the case before us, for there are two parties to this proceeding.Two legatees of the testator, whose names appear in the re-" cord, came forward and objected to, or caveated the application made by the administrator, with the will annexed. That caveat formed an issue, and the caveators were parties to that issue. When the issue was carried up by appeal, they were of •course parties to the appeal.

£3.] We are also informed that another objection to the hearing of this case was, that in our State, no appeal lies from the decision of the Court of Ordinary, in any but a case touching the probate of wills atid granting letters of administration.

The peculiar phraseology of the Act of 1805, just mentioned, and of the Act of 1823, providing for the trials of appeals from the Court of Ordinary, by a Special Jury, seems to lend some encouragement to this idea. Wo believe, however, that the uniform construction of these Statutes has been otherwise. Rut whether so or not, the objection, in this case, is disposed of by the Act of 1851. That Act authorizes an appeal from “ any decision” of the Ordinary. See Acts. p. 97.

£4.] The objection, that such an appeal does not lie, because the Superior Court cannot carry its judgment into execution, is not well taken.

It is true, that the Superior Court cannot grant letters testamentary, or of administration; but it is not true, that it cannot carry its judgment into effect. To that judgment it gives offect, by issuing its mandate to the Court of Ordinary, if it deem it meet and proper that such letters should be granted; and having authority to enforce the- obedience of that Court* it thus executes its judgment.

Let the judgment be reversed.