| Md. | Oct 3, 1861
delivered the opinion of this court.
This case had its origin in a suit instituted in the court of chancery, in 1837, by John Glenn, administrator of Frederick Lindenberger, against George Hebb.
The complainant, by his bill of complaint, prayed the court to pass a decree that the defendant account with the complainant for the partnership effects of the late firm of Hebb & Lindenberger, in his hands, as surviving partner of the firm. After sundry proceedings were had to bring the caúselo hearing, all of which are stated in the record in this case,, the chancellor, by his decree, dismissed the bill. An appeal
The chancellor, in view of the decision of this court, passed a decree that the defendant account with the complainant. The cause was proceeded with, being referred to the auditor to state the account. It continued thus pending- until the defendant, Hebb, died, on the 17th day of May 1846. On the 9th of June 184(3, letters of administration on the personal estate of Hebb, were granted to Samuel P. Smith, and on the 12(h of June, of the same year, the death of Hebb was suggested.
The complainant filed his bill of revivor and supplement on the 5th of May 1849, against the administrator, and also against the widow and heirs at law of Hebb, stating, as supplemental matter, that Smith, the administrator, had settled his account with the orphans court, and distributed the personal assets to the widow, and heiis at law of Hebb, who are infants, regardless of the pendency of the chancery suit; that Smith was also the guardian of the said infant children, and that the assets are either in the hands of Smith, as administrator, or in the hands of the widow and Smith, as guardian,, and, in either case, liable to the payment of the complainant's-claim, when it shall be ascertained.
It further alleges that the personal estate of George Hebb is not sufficient to pay the debt, and that Hebb died seized and possessed of a large amount of real estate. The bill then-prays for a revivor, that a decree to account may be carried into effect, and that the real estate may be sold, for the payment of the debts.
The answers of the defendants were filed, and, by agreement, the cause was referred to a special auditor, who filed his audit on the 6th of December 1852. Exceptions to the auditor’s report were filed by the defendants in January 1853, and on the 8th of July 1853, the complainant died.
No further proceedings were had in the court of chancery, the office of chancellor being abolished by the Constitution, and, by its provisions, the Legislature was required to pass all laws requisite to dispose of cases and proceedings in. the
The bill of revivor and supplement was removed to the circuit court for Allegany county, which court took cognisance of the same, and the present bill of revivor was filed by the appellant., as administrator de bonis non of Frederick Lindenberger, on. the 18th of April 1855.
The defendants severally filed their answers to this bill of revivor, to which the complainant put in a replication. A commission to take testimony was issued, and testimony taken thereunder. Upon the final hearing of the cause, the Hon. Thomas Devecinon, as special judge, passed a decree dismissing the bill, and from that decree the complainant appealed to this court.
The first question which presents itself, is, whether this suit was properly transmitted, under the provisions of the Constitution and the Acts of Assembly passed in pursuance thereof? That must be considered undisposed of, in the view of the Constitution, which may be proceeded with. The Act of 1820, ch. 161, secs. 4 and 5, forbids the idea of abatement, and provides a medium through which a cause in chancery may be prosecuted. See, also, Story’s Eq. PL, 354. If this suit did not abate, then, under the Constitution, it must be regarded as undisposed of and unfinished; and when removed, as it was under the Act of 1854, ch. 149, sec. 4, to the circuit court, sitting in equity, it must be carried on as if it had not been removed, and must be regarded as a continuance of the same cause.
We may consider all questions of limitations and laches growing out of this case, prior to 1842, as settled by the decision of this court in 1:2 G. & J., 271. And our enquiry is confined to the conduct of the parties litigant since that period. It appears, from ihc record, Hebb, the original defendant,, lived until the 17th of May 1846, and being in court called upon to account, with all the material in his possession
It is insisted that the defendant, Smith, should be protected under his plea of plene administravit. That, under the circumstances, this court, in the exercise of its equity powerr should regard the notice given by him, and the delay to make-distribution for nearly two years, as an equitable compliance with the law.
Whatever force there may be in this suggestion, we deetrr it more conducive to the proper administration of the law, to guide our judicial conduct by precedent analogous decisions. To interfere with the legislation by which special jurisdiction is conferred on inferior courts, would create greater uncertainty and confusion in their judicial proceedings. And in reference to notice to creditors having claims against the estates of deceased persons, the reciprocal obligation of representative and creditor should be maintained. We regard the case of Rawlings vs. Adams, 7 Md. Rep., 27, as directly in point, and, therefore, not to be disregarded by us. And though the point was made, in the argument of this case, that the Act of 1798, ch. 101, might be so construed as that the six months notice to be given to creditors, could be construed: lunar months, we think the case in 7 Md. Rep., before re>ferred to, excludes such a construction; the similarity in that and this case, in this particular, being too striking to be overlooked.
One other point remains to be considered by this court', and that is, whether the complainant had a right, by his bill of revivor, to make the widow and heirs at law of George Hebb parties, and by an allegation of the insufficiency of personal' assets to pay his debts, give to his bill the attributes of a cred-
We can see no valid objection to such a course of proceeding. If the claim of the complainant Was a valid one, due by Hebb at the time of his death, (of the validity of which, 'we, however, express no opinion,) and the distribution made by his administrator was not in conformity with law, tire parties to whom the fund was distributed ate properly m ’court in this case, and having sanctioned the proposition that ‘the bill might assume the attributes of a creditors bill, the heirs nt law, in that relation, were properly made parties.
If, upon the death of ITebb, the suit then pending had been abandoned, and the complainant had resorted to an original creditors bill, however just his claim might be, he would have lost the benefit of his Us pendens, and have let in the defences set up by the defendants, especially the bar of the statute of limitations and laches, which Hebb, in his lifetime, could not have availed himself of, and which we cannot see the propriety of allowing his representative and heirs at law to do, in the absence of any other valid defence.
Entertaining these views, it will follow that the decree of Hie circuit court, dismissing the complainant’s bill, should be «reversed, and the cause remanded for further proceedings.
Decree reversed, with costs in this court ■to appellant, and cause remanded