3 Md. Ch. 278 | New York Court of Chancery | 1851
Upon the petition of Richard C. Warford, filed on the Equity side of Baltimore County Court, on the 6th of November, 1850, a writ de lunático inquirendo, issued to the Sheriff
Subsequently, to wit, on the 16th of December, 1850, Elisha Warford and others, being of the next of kin, and heirs-at-law of the lunatic, filed their petition in the cause, in which, while they admit that Rachel Colvin is now of unsound mind, they insist that her mental infirmity goes back to an earlier period than that found by the jury, and object to the inquisition on that account; and they likewise object to the appointment of Richard C. Warford, and his sister Rachel J. War-ford, either jointly or severally, as the committee of the estate or person of the lunatic, and pray that one Benjamin H. Ellicott may be appointed committee of the estate, and that he and his wife, Mary Ann Ellicott, may be appointed committee of her person.
After the proceedings had been transferred to this Court, upon the suggestion of Elisha Warford, and those who are associated with him, a petition was filed by Ann Sharp and Thompson Pegg and wife, the said Sharp and Mrs. Pegg being also of the next of kin, and presumptive heirs-at-law of the lunatic, in which, for the reasons stated in their petition, they object to the appointment of any of the persons previously recommended, to take charge of the estate, and urge the appointment of St. George W. Teakle, Esquire, as a person peculiarly qualified, from his long and intimate acquaintance with the lunatic and her estate, to discharge the duties of committee.
By an agreement filed on the 9th of this month, the objections to the confirmation of the inquisition are withdrawn, and it is agreed that it shall be confirmed upon certain terms, and
The question, and the only question now to be considered, respects the person or persons who shall be appointed committee of the person and estate of the lunatic, and this question, though it cannot in any way affect the rights of the parties who may, upon the death of the lunatic, succeed to or be entitled to her estate, has been discussed with an earnestness and ability which show how deep an interest they take in it.
Whatever may be the true origin of the jurisdiction of the Chancery Court in England, over the estates and persons of idiots and lunatics, it is certain that the authority of the Court of Chancery in this State, to take charge of their estates and persons, is now derived from the 6th section of the Act of 1785, ch. 72, which confers upon the Chancellor full power and authority in all eases to superintend, direct, and govern their affairs and concerns, both as to the care of their persons, and management of their estates, and to appoint a committee, trustee or trustees, for such persons, and to make such orders and decrees respecting their persons and estates, as to him may seem proper.
The power of appointment is necessarily a discretionary one, and it is thought cannot be reviewed by any other Court, though it would be manifestly improper for the Chancellor to exercise it arbitrarily or capriciously, and without having any regard to the lunatic, or the wishes or recommendation of those who may be presumed to be interested in the estate, or to feel an interest in his or her person. And accordingly, though it most frequently happens that the committee is appointed on the nomination of the person who sues out the commission of lunacy, a eaveat may be entered against the person so nominated, and when this is done, the recommendations of the parties interested will be considered, and proof taken to aid the Court in making a selection. This is the established practice, and the propriety of it is apparent.
Though-in this State it is more usual to appoint the same person committee of the person and estate, the cases are not
Confining our attention to those who would, in case of the death of the lunatic at this time, intestate, be entitled to her estate, it is clear, other things being equal, that the appointment, so far as the property is concerned, should be conferred on Benjamin H. Ellicott, as, conceding that the recommendation of him by Ann Hudutt, has been withdrawn, there will still be found a larger interest uniting in his favor, than of either of the other persons. If a majority of the parties in interest do not concur in his recommendation, a considerable plurality certainly does, and this circumstance unquestionably is entitled to much weight.
Sensible, it is presumed, of the influence of this consideration, the petitioner, Richard C. Warford, brings to the notice of the Court two wills, executed by the lunatic, the first in the year 1845, and the last in the year 1848, by either of which the largest portion of her estate is devised and bequeathed to him; and these wills, it is insisted, are fit to be considered, either as indicative of his interest in the estate, or of the con
The introduction of these papers has opened a fruitful subject of inquiry, and has induced the parties to collect a vast mass of evidence touching their validity or invalidity, as testamentary dispositions of property.
It is most certain that these papers cannot be regarded as wills. Miss Colvin, the lunatic, is still living, and though the papers, or either of them, may have been executed when she was compos mentis, and she may never be restored to her mental capacity, so as to enable her to revoke them if so disposed, still, in legal contemplation, they are ambulatory until her death, and can confer no rights until then.
To enter at this time into an examination of the circumstances upon which the efficacy of these papers may depend, would be to engage in a duty entirely premature, and out of place; and it occurs to me that it would not be proper, whilst declining to make that examination, to permit these papers to influence the decision of the question now before the Court.
The petitioner, Richard C. Warford, seeks to counteract the effect of the recommendation of Elisha Warford, and those who have united with him in favor of Benjamin H. Ellicott, by showing that, under certain instruments of writing executed by the lunatic, he will, at her death, be entitled to the largest portion of her estate; and thereupon the parties now, in the lifetime of the lunatic, engage in a controversy respecting those papers; and it would, as it appears to me, be the clear duty of the Court to investigate the evidence produced upon this point before it could determine what degree of influence to give these papers. It would be manifestly unjust to suffer them to outweigh, or even weaken the recommendations of the next of kin and presumptive heirs-at-law, without looking into and considering the evidence introduced by them to show, either that the papers never had a legal existence, or if they had, that they were revoked by papers subsequently executed; and thus the Court would find itself engaged in deciding upon the validity or invalidity of a will during the life of the alleged testator.
With a view to make up my judgment upon this point, I have carefully read all the evidence bearing upon it, and have listened with attention and interest to the elaborate arguments of counsel on the one side and the other, and have arrived at the settled conviction that Mr. Ellicott is a fit and proper person to be clothed with this delicate and important trust. His integrity, his business capacity and habits, stand vindicated by the proof, and I can see nothing in the character of the pursuits in which he is engaged from which it can be fairly inferred or reasonably apprehended that he will not faithfully perform his trust. I fully concur in the principle established in the case of Eunice Salisbury, a lunatic, 3 Johns. Ch. Rep., 347, and the other cases which have been cited on the same point, that the great and leading object in the selection of persons for the management of the estates of lunatics, and the care and custody of their persons, is to advance their welfare and comfort; and that the interest of those who may be entitled to the succession is wholly subordinate to this. In fact, the old rule which excluded, as a matter of course, the next of kin of a lunatic from the office of committee of his person, if such next of kin was also his heir-at-law, has been broken down, because, contrary to the presumption which prevailed in barbarous times, the law now supposes that those who stand nearest to the lunatic by the ties of kindred, will treat him with more affection and patient fortitude than strangers to his blood; and honce consanguinity, though it confers no positive title, is now considered as a considerable recommendation in the selection of a
The Court might, in the exercise of its discretion, associate another with him in the trust, but this is not often done ; and there are reasons which frequently, and perhaps in this ease especially, render it inexpedient. It has been suggested, and authorities cited to show, that persons embarrassed by pecuniary difficulties, and who, under the pressure of such difficulties, might be tempted to use the money or estate of the lunatic improperly, are not fit tobe placed in offices of this description. That such a consideration is entitled to weight, is shown by the case of Ex parte Proctor, 1 Swanston, 531, 533; and lam free to say, that if I could see in this evidence any reasonable ground for apprehending that Mr. Ellicott would be likely to employ the money which may come to his hands, as committee of this estate, in his own affairs, or for his own benefit, it would operate with powerful force against his appointment. But I can see no such ground in the proof; and besides, the very character of the order of appointment, and the security which will be taken for the performance of the duties of the committee, render any misapplication of the trust estate extremely improbable. The committee, by the terms of the order, is required to return an inventory of the lunatic’s estate within six months from the date of the order, and to account for his receipts and expenditures once in each year, and oftener, if required.
But -whilst I place the property in the hands of Benjamin II. Ellicott, I shall confide the person of the lunatic to the care of Mrs. Mary Ann Ellicott and Miss Rachel J. Warford, her kinswomen. The evidence shows conclusively, and it has been fully conceded on all hands, that they are peculiarly and eminently deserving of the trust, and that their unfortunate relative will receive from them the kindness and tender regard and solicitude which her afflicting situation requires; and as her fortune is ample, the most liberal allowance for her comfort will be made.
The view which I have taken of this case, relieves me from the necessity of expressing an opinion upon the admissibility of the evidence which has been excepted to.
[Afterwards, to wit, on the 5th of February, 1853, a petition was filed in the cause by Joseph Cain and others, stating that they are among the next of kin of said lunatic, and that said lunatic had departed this life having left a will, the probate of which is disputed ; that, in the mean time, there.is no one to whom Benjamin II. Ellicott, the committee of her estate, can deliver the same, either personal or real, which is, therefore, liable to loss and injury, and praying that a receiver may be appointed to take possession of the estate of said lunatic,
Upon looking more carefully into the question affecting the authority of the committee, after the death of the lunatic, I am satisfied that his office is determined by that event; and that the only power which the Court retains over the committee as such, is to compel him to account and to deliver possession of the property, as the Court shall direct. But the committee is to retain the possession, and preserve the property from injury, until some person shall appear properly authorized to receive it from him. In the mean time, if there is reason to apprehend delay in ascertaining who are entitled to the possession, a receiver may be appointed upon the application of the parties in interest, as was done in the case of the Duchess of Norfolk, cited in Shelford on Lunacy, 210.
[Accordingly, on the 9th of February, 1858, the Chancellor passed an order, appointing the said Ellicott a receiver, “with full power and authority to take charge and possession of the estate of the said Rachel Colvin deceased, real, personal, and mixed, now in the possession of the committee of the said deceased under a former order of this Court, and to hold and manage the same in all respects as the said committee, during the continuance of his office and authority, was empowered to do.” The order then requires him to give bond in the penalty of $30,000 for the faithful performance of his duties as such receiver. “And power is hereby expressly reserved to this Court to change, modify, or annul this order, and to discharge the receiver hereby appointed, and to pass all such orders and decrees in the premises as may hereafter be deemed necessary and proper.” Subsequently to this, Richard C. Warford
Upon the petition of certain parties claiming to be interested in the estate of the deceased Rachel Colvin, formerly a lunatic, and whose estate and person were in tho care and custody of trustees appointed by this Court, as shown by the proceedings in the cause, an order passed on the 9th of February last, appointing Benjamin H. Ellicott receiver, with certain powers as in the said order are specified and defined. The same party, by an order in lunacy, had been appointed committee of her estate, the Court, for reasons stated on a former occasion, having thought it expedient to commit the care of her person to other parties.
The lunatic is now dead, and there being a contest likely to be protracted, in regard to the validity of a certain paper writing, or writings, purporting to be her will, the Orphans Court of Baltimore City have granted letters of administration pendente lite to Richard C. Warford, who has accepted the trust and given an approved bond for the faithful performance of the duties of the office.
The administrator thus appointed and qualified, by his petition filed on the 1st of the present month (March, 1853), prays that the order of the 9th of February may be rescinded, the receiver discharged, and an account taken, to the end that he may be compelled, as committee and receiver, to bring into Court all moneys collected and received by him in both capacities. Upon this petition, an order passed for a hearing, and the questions presented by the petition have been argued by counsel, upon its allegations, the answer thereto, and certain depositions and facts introduced by agreement of parties.
In passing the order of the 9th of February, the question of the Court’s power, as affected by the new Constitution, was not adverted to. If it had been, there might perhaps have been more hesitation than was felt at the time ; though I am not now prepared to say, that the petition to have a receiver appointed in this case can be viewed as the commencement of a new suit in this Court. In the first place, the petition was filed, and properly filed in the lunacy cause. It is very true, and not denied that the death of the lunatic put an end to the office of the committee; and that the jurisdiction of the Court in the lunacy'cause was determined by the same event, except for the purpose of having the necessary accounts taken and directing the fund or estate to be paid over to the party or parties entitled. But to this extent, and for this purpose, the jurisdiction remained. The cause, therefore, was not out of Court. Orders passed in it directing accounts to be taken, or proof to be taken, if necessary, and compelling the committee to pay over the property to the party entitled, would not be coram non judice.
The situation of the cause then, was this : the Court had in
It appears to me that it is by no means clear, that such a proceeding for such a temporary and useful object, adopted in a cause actually depending in the Court for some purposes, is the institution of new business within the intent and meaning of the Constitution. In ordinary cases, the appointment of a receiver is ancillary to the main object of the cause. The object is to preserve the property in controversy until the Court shall determine the question of right between the parties. But in this case it never was in the contemplation of the Court, to determine any such question. It was only pro
But without intending to express a decided opinion upon this question, which is certainly not free from doubt, the point next to be considered is the order proper to be passed, now that administration has been granted, and the administrator is here asking to have the personal estate paid over to him, and for an account of it, since it has been held by the committee and receivers.
Nothing can be clearer than that if the estate had remained in the hands of the committee of the lunatic, and full letters of administration, or letters testamentary had been granted to any one, the right of such administrator or executor to the personal estate would have been incontestable. This, of course, is conceded. But it is said the property here is not in the hands of the committee, but in those of a receiver, and this Court having assumed jurisdiction of the cause by the appointment of the latter, no other Court of merely concurrent or coordinate jurisdiction can interfere; and the case of Albert and Wife vs. Winn & Ross, 7 Gill, 446, is referred to in support of this position.
This view of the case, however, would give a much more
But that case is not at all like the present. Here, from the terms of the petition upon which the order of the 9th of February last was passed, and the language of the order itself, it is manifest it was intended to be provisional and temporary only, being merely designed to preserve the estate until some one properly authorized should appear to claim it, and the right so to claim was to be a question to be inquired into and determined elsewhere. This Court certainly, in passing that order, did not design to take to itself the administration of the estate of the deceased, which would, in my judgment, have
The question, then, is whether the time has now arrived when this Court may let go its hold of the personal estate of the deceased, taken into its possession, as we have seen, merely to preserve it from destruction or diminution, and this raises the question of the extent of the authority of the administrator pendente lite. There can, I presume, be no doubt of the authority of this Court to protect the property of an intestate or testator, by appointing a receiver pending a litigation in the Ecclesiastical Court for probate or administration. It was assumed by Lord Eldon as free from doubt, in the case King vs. King, 6 Ves., 172, and though apparently to some extent shaken by Lord Erskine in Richards vs. Chave, 12 Ves., 462, it has been fully and firmly established in subsequent cases. See Edmunds vs. Bird, 1 Ves. & Bea., 542; Atkinson vs. Henshaw, 2 Ves. & Bea., 85; Ball vs. Oliver, ib., 96. The Court, in such cases, proceeds upon the ground that the property is in danger, because it may get into the hands of persons who have nothing to do with it; and it will not forbear to appoint a receiver, because the Ecclesiastical Court may provide for the collection of the effects of the deceased by granting letters pendente lite. This is the conclusion of the cases refered to, and is asserted to be the rule in 1 Williams on Executors, 339, 340 (2 Am. Ed).
Having then the power to appoint a receiver, pending the litigation in the Orphans Court for probate or administration, although that Court, by granting administration pendente lite, might provide for the collection of the effects, the question remains, will this Court continue the office of receiver after the Orphans Court has actually made such appointment? The ground, as stated by Lord Eldon in King vs. King, upon which the Court proceeds in appointing the receiver pending the litigation in the Ecclesiastical Court is, “ that the property is in' danger in this sense, that it may get into the hands of persons who have nothing to do with it.” But this observation is, of course, inapplicable to the case of an administrator pen
All the cases cited by the counsel for the receiver, except that of Atkinson vs. Henshaw, 2 Ves. & Bea., 86, strongly imply that though the power of the Court of Probate to grant letters pendente lite would not oust the Court of Chancery of the authority to appoint a receiver, to preserve the property pending the litigation, yet the actual grant of such letters would have that effect by removing the necessity for such appointment. But Lord Eldon, in Atkinson vs. Henshaw, speaking of the effect of the decision in Walker vs. Woollaston, 2 Peere Wms., 576, that an administrator pendente lite might maintain an action to recover the possession of the personal effects of the deceased, and after maintaining that such a right in the temporary administrator did not deprive chancery of the jurisdiction to appoint a receiver pendente lite, intimates a doubt whether the actual appointment of such administrator would obviate the necessity for a receiver. It will be seen, however, that it is a mere doubt. The case before him was
But no case has been nor I believe can be produced, in which this Court has appointed a receiver after the grant of letters pendente lite by the Ecclesiastical Court, and the power of this Court to act in such a case rests entirely, so far as I am informed, upon the doubt thrown out by Lord Eldon in the case referred to. The effect of this doubt, moreover, is much weakened, if not entirely overthrown, by the case of Rendall vs. Rendall, 23 Eng. Ch. Rep., 152, in which the Vice-Chancellor decided, that a receiver will not be appointed pending a litigation to recall probate or grant of administration, unless a special case can be made out for such appointment, adopting in the conclusion of his judgment the language of Lord Gotten-ham, that “ there is no doubt that by the rule of this Court, if the representation is in contest, and no person has been constituted executor, the Court interferes, not because of the contest, but because there is no proper person to receive the assets.” If, therefore, there be a proper person to receive the assets, the litigation in the Orphans Court is immaterial. The Court on that account will not interfere. These observations are strong against the prolongation of the powers of the receiver, because none can doubt that an administrator pendente lite is a proper person to receive the assets. His authority in this respect is as complete as that of the general administrator.
Upon the grant of full letters of administration or letters testamentary, the powers of the receiver would of course cease, because then the litigation in the Orphans Court would be at an end, and to keep the property here would be to strip the latter Court of its acknowledged jurisdiction over the personal estates of deceased persons. But why should not the same result follow upon the grant of temporary letters ? The limitations upon the power of such an administrator, as defined by Mr. Williams in his treatise on executors, before referred to,
It is not, of course, pretended that this Court, or any Court, in a collateral proceeding, can review or revise the judgment of the Orphans Court, in granting the letters in question. Their power to grant such letters cannot be questioned since the Act of 1810, eh. 34, if it did not exist before; and by the 6th section of that act full discretion is given to make the grant to either of the three classes of persons therein mentioned, and it is not denied, that the person to whom the grant was made in this case falls within one or more of the classes, assuming, as is proper, that the will propounded for probate is the contested will.
But it is said that an administrator pendente lite is not required to give bond, and this is urged as a reason why the property should not be allowed to go into his hands, though, in point of fact, he has given a bond which has been approved by the Orphans Court. In the Commissary’s Guide, 57, speaking of the duty of such temporary administrator to account
I am, therefore, of opinion, that so far as the personal estate of the deceased is concerned, the receiver must be discharged, the accounts taken separately, whilst he held it in that capacity and as committee of the lunatic, and the property itself, and its accumulations, be delivered over to the administrator pendente lite. And the only remaining question is, shall the receiver be continued with reference to the real estate ?
Two or three considerations induce me to answer this question in the negative, and have brought my mind to the conclusion that he "should he discharged as to the real estate also. As has been already stated, the constitutional power of this Court to entertain the petition for the appointment of a receiver, and to pass the order of the 9th of February last, has been seriously questioned; and though, for the reasons before mentioned, I am inclined to think that, under the peculiar circumstances of the case at that time, and to the extent and for the purpose contemplated by that order, the Court did possess the power to pass it, I am yet free to admit that it is a question upon which grave doubts may exist, and the very existence of such doubts would incline the Court to forbear to exert the disputed power, unless some urgent necessity for so doing existed. Such necessity appeared to exist at that time, but does not now, because the parties interested are aware of the condition of the estate, as shown by the proceedings in the cause since the date of the order ; and it is not to be doubted, if this
The order of the 9th of February, moreover, was passed ex parte, and necessarily so, because of the perils to which this large estate would have been exposed by the delay of giving notice to the parties in interest. But these parties are now hero, some claiming to be heirs-at-law, and others devisees under a paper purporting to be the will of the deceased, and insisting that the receiver appointed by the order in question shall be removed, and others appointed in his place.
It is also a circumstance not unworthy of consideration, that the constitutional existence of this Court is limited to a period now rapidly approaching, and in all human probability, that period will have arrived and passed long before the controversy in regard to the will can be brought to a close. It is certainly far better that this valuable estate should be under the care and control of a permanent Court than of one which must cease to exist in a short time. As by the appointment of a receiver no question of right was decided, so by his discharge none will be touched: but the receiver, and those of the parties who desire him to fill that office, will be at liberty to go before the proper tribunal and ask for his appointment. No harm is done to any one by requiring him to settle his accounts, and to hand the property over to those who may be entitled to its possession. An order will be passed in conformity with these views.
[The Chancellor accordingly, on the 19th of April, 1853, passed an order discharging the receiver, and directing him to account, as stated in the above opinion. From this order the receiver entered an appeal, and filed an appeal bond. A motion -was then made by the administrator pendente lite, for an attachment to compel the receiver to comply with the order of the 19th of April. Upon the hearing of this motion, the Chancellor delivered the following opinion, on the 17th of May, 1853.]
This is an application to enforce, by attachment, the order of the 19th April last, by which Benjamin H. Ellicott was removed from the office of receiver, to which he was appointed under a previous order of this Court, and directed to account and deliver to Richard C. Warford, administrator pendente lite of the deceased, the personal estate and effects in his hands; and the only questions which properly arise upon this application, are two. First, can the receiver appeal from the order ? and secondly, if he cannot, will this Court, notwithstanding he has entered and filed an approved appeal bond, proceed to enforce its execution ? In addition to these, however, the counsel have argued a third, and that is, whether an appeal will lie from the order in question, in behalf of. any of the parties in interest ? and upon each of these I propose very briefly to express an opinion.
It is conceded, that if the right of appeal exists, it is not in virtue of any statutory enactment expressly giving it. If it exists at all, the right is founded either upon general principles regulating the subject of appeals, or is derived, by implication, from some one of the various Acts of Assembly which have been passed from time to time, or is to be drawn from the general scope and spirit embodied in them as a whole.
The general rule undoubtedly is, that an appeal will not lie from a mere practical order of this Court, preparatory to the final hearing, and by which the rights of the. parties are not affected. Such was announced to be the law in the case of Thompson vs. M’Kim, 6 H. & J., 312, and is asserted in every subsequent case in which the subject has been spoken of in the Court of Appeals.
Now it cannot be said that an order appointing a receiver, or discharging him, has, or can have, any influence upon the rights of the parties. The late Chancellor, in 1 Bland, 421, laid down the rule upon the subject in the clearest terms, and the Court of Appeals, in Ellicott vs. The United States Ins. Co., 7 Gill. 307, repeat and adopt his language.
It is true, that by the proviso to the 1st section of the Act
Assuming that the legislature, by the Act of 1830, designed to enlarge the right of appeal, and extend it to orders appointing receivers, is it legitimate to suppose they did not go so far as they intended to go ? The subject of receivers was before them, and when they stopped short of the point now under consideration, that is, did not give the right of appeal from orders discharging receivers, it must be presumed they did not mean to do so. There are few powers exercised by the Court of Chancery which require greater caution than that of appointing receivers. It is, say the Court of Appeals, in the case of Speights vs. Peters, “ a high power, never exercised where it is likely to produce irreparable injustice, or where there exists any other safe or expedient remedy.” And it may well bo that the legislature deemed it proper to provide for the revision of the exercise of this high power by a superior tribunal, when they did not choose to give an appeal, either when the Court of Chancery refused to exert the power, or’ having once exerted it, withdrew its authority by rescinding its order. However this may be, it is clear they have not in terms, or by any fair implication, given the right of appeal from an order like the one in question, and it would be legislation and not construction in the Courts to do it.
But if there could be a reasonable doubt upon the question, of the right of a party in interest to appeal from the order of
But it is said, that though he cannot complain of the order removing him, yet as this order goes further, and directs him to deliver over property to the administrator pendente lite, he may, on that account, be entitled to take the judgment of the Appellate Court. But what is it to him what the Court does with the property, provided he is discharged from his responsibility as receiver ? And that he would be so discharged by obeying the order of the Court, cannot be questioned. It is, moreover, conceded that the receiver has no rights himself, and of course cannot appeal or interfere in any way in the conduct of the cause, unless he can be considered as representing .those at whose instance he was appointed. But to view him in that light, would be to give him a character inconsistent with the nature of his office, as defined by Chancellor Bland. How can he be the officer of the Court, and the hand of the Court, and at the same time the representative of the interests of certain of the parties to the cause ? The Court must act by its officers and agents, and there is as much propriety in calling the Court the representative of any of the parties to the cause, as its agents and officers, who derive their authority from the Court, and are removable at its discretion.
If, however, there could be a doubt upon the subject, it
I hold it, therefore, to be too clear for doubt, that a receiver has no right to intermeddle in questions affecting the rights of the parties or the disposition of the property in his hands; that he cannot in any sense, or to any extent be regarded as the representative of any one or more of the parties to the cause, and that he must retire from his office, and give up the property committed to his custody, whenever required so to do by the Court; and this, whether the power to discharge him was reserved or not, as was correctly stated in the argument. In this ease, the power was expressly reserved, not because it was deemed necessary, but to indicate plainly to all parties that the order of the 9th of February last was to be regarded as temporary only, and only passed in view of the peculiar exigencies of the case.
The only remaining question is, will the Court, notwithstanding the appeal of the receiver and the bond given by him, execute the order appealed from ? Why not? IIow can his rights be
In the answer of the receiver, filed on the 14th inst., he says distinctly that he has no interest in the estate, and therefore no disposition which can be made of it can in any way concern him. I therefore consider it my duty to enforce obedience to the order of the 19th of April, 1853 ; but inasmuch as the receiver disclaims expressly in his answer any intention to disregard the authority of this Court, or to treat its orders with contempt, I am not disposed, at once, to direct an attachment to issue against him, but will pass an order which will enable him, by yielding promptly to the authority of the Court, to protect, himself against the consequences of that process.
[An order was accordingly passed on the same day, (17th of May, 1853,) requiring the receiver to comply with the order of the 19th of April, 1853, “by yielding up and delivering to the said Richard Colvin Warford, administrator pendente lite of Rachel Colvin, deceased, the personal estate and effects of said deceased in his hands; and that as soon as may be conveniently practicable, he make report and account, as required by said order, and in all things execute and obey the same. And it is further ordered, that if the said Ellicott shall neglect or refuse to execute and perform said order, by yielding up and delivering to the said Richard Colvin Warford the personal estate and effects of said deceased, for the period of ten days after the service upon him of a copy of this order, that, upon proof of service and neglect or refusal, the writ of attachment will issue to compel obedience thereto.”]