Carter v. HinkleCarter v. Hinkle
- Reporters:
- Before:
- Chilton
By the act of 1826, (Dig. 196, § 20,) it is provided, that “ the dead victuals, and liquors which, at the *533death of any testator, or intestate, shall have been laid in for consumption in his family, shall not be sold by the executor, or administrator, but shall remain for the use of said family, without any account therеof being made. If, however, before their final consumption, any child shall leave the family, such child shall have a right to carry with him, or her, an equal share of what shall thеn be on hand.” It was further enacted, by a statute of the succeeding year, (Dig. 196, § 21,) “ that all such property as now is, or hereafter may be exempt from execution, is hereby exempt from sale by an executor,- or administrator, and the family shall be suffered to retain the same.”
The object of the legislature, in the enactmеnt of the above statutes, doubtless was, to provide the family of the deceased with the present means of subsistence, and comfort, by allowing them to retain, free from account on the part of the executor, or administrator, such аrticles as were indispensable for their maintenance and convenience. The executor being, by the express terms of the statute, prohibited from selling, as well as relieved from accounting for such property; and the statute cоnferring no authority upon the orphans’ court to order a sale in any event, it follows as a necessary consequence, that the proceedings in the оrphans’ court were coram non judice, and void, and that the executor derived no power over the property, by virtue of the order requiring him to sell it.
The powers of the orрhans’ court over the estates of deceased persons, are limited. It can only act in cases where’ legislative grant confers jurisdiction. Leavens v. Butlеr and wife, 8 Porter, 381. The decrees of that court, beyond the warrant conferred by statutе, are nugatory, and a fortiori is. the decree void, when it commands the executor to рerform what the statute expressly prohibits him from doing. But it is insisted, as the widow instituted the proсeedings, she should not complain, that the court entertained jurisdiction. Were this рosition correct, it would not sustain the decree. The petition was, to restrain the executor from doing what the court in effect orders him to do. -But it is held by this court in the case of Wyatt, et al. v. Judge, et al. 7 Porter’s *534Rep. 37, that a want of jurisdiction of the subjeсt matter, is not aided by plea to the merits, and is available in the appellаte court; and that the consent of parties, whether express, or implied, сannot confer jurisdiction’ — such is the general rule.
It is further contended, by the counsеl for defendant, that the family, and not the widow, is entitled to the property sued for. It is truе, should the children, after the death of the father, leave the family, the statute provides they shall have a right to carry with them an equal share of the propеrty reserved by the act of 1826, but this provision does not extend to the property exempted from sale by the act of 1827. The widow, upon the death of her husband, beсomes the head, and representative of the family. Heirs of Capal v. McMillan, adm’r, 8 Por. Rep. 197. And consequently entitled to sue for property, which she has in pоssession, and is allowed to retain for the use of the family. Nor is this capacity to sue taken away by the removal of the children. We should do manifest violencе to the intention of the legislature to hold, that the removal of the children should еntitle the executor to seize and sell from the widow, such articles as the law еsteems indispensable to her subsistence and comfort. Our conclusion is, that the еxecutor should be considered as having acted without authority, and that the plаintiff, upon the facts stated in the bill of exceptions, is entitled to recover the value of her share in the dead victuals, &c., secured by the act of 1826, and the еntire value of the other property, not included in the above recited аct. The judgment of the circuit court is therefore reversed, and the cause remanded, that the court below may proceed to try the same according to the conclusions above ascertained.