Sewell v. Sewell's Adm'r 1 H. & G. 9

Sewell vs. Sewell’s Adm’r. D. B. N.

June, 1826.

The orphans court, at .Tulv term 1824, on the petition of J. S, ordered the register to grant him letters of administration on the estate of It S. on his giving bond, with security. On the loth of September 1824, in 'die recess of the court, letters were accordingly granted. On the 14th of September, still in the recess of the court, W S, the only surviving brother of the deceased, by his petition, objected to letters being so granted, excepted to such appointment, and prayed an appeal, which was granted by the court on the 13th of October, 1824. The court of appeals dismissed the appeal.

By the act of 1818, ch. 204, appeals from the orders and decisions of the orphans courts, must be taken within thirty days after such order or, decision.

Appeal from the Orphans Court of Calvert County. At July term 1824, the appellee petitioned the orphans court to grant him letters of administration de bonis non, cmtiie estate *10of John R. Sewell, deceased, inasmuch as he was appointed •originally co-executor with the late Thomas Reynolds, and resigned only in favour of the said Reynolds, who is since dead. He exhibited the will of John R. Sewell, dated the 13th of November 1819, whereby he appointed his brother’s ‘son, James J. Sewell, (the appellee,) with Thomas Reynolds, to be his executors. The will was duly proved on the 20th of January 1821, by the subscribing witnesses; and on the 23d of January 1821, James J. Sewell, one of the executors named, refused to administer, and by his written communication renounced all right, &c. The orphans court ordered the register to grant letters of administration de bonis non, with the will annexed, to James J. Sewell (the appellee) on his giving bond with security; and on the 13th of September 1824 letters Were, in the recess of the court, accordingly granted. On the 14th of September 1824, in the recess of the court, William R. Sewell, (the appellant,) the only surviving brother of the deceased, by his petition objected to letters being so granted, alleging that John R. Sewell, deceased, by his will, appointed James J. Seioell and Thomas Reynolds his executors; that James J. Sewell resigned his executorship, and letters were granted to the said Reynolds, who is since dead; and that the petitioner is the right and lawful person to whom letters of administration de bonis non ought to be granted, as being the only surviving brother of John R. Sewell,' deceased, and he excepted, and prayed an appeal to this court; which appeal was granted by the court on the 18th of October 1824, and the record transmitted accordingly.

Motion, by the appellee, to dismiss the appeal.

This motion was argued before Buchanan, Ch. J. and Earle, Martin, Stephen, Archer, and Dorsey, J.

C. Dorsey, for the Appellee,

contended, that the appeal must be dismissed. He referred to the acts of 1798, ch. 101, sub ch. 2, s. 11; sub ch. 15, s. 18; and 1818, ch. 204. He said, that if the appeal could be sustained in a case like this, it had not been made within the time prescribed by law.

Taney and Boyle, against the motion.