Neal v. Charlton

Irving, J., delivered the opinion of the Court. In 1850, Jonathan Charlton, of Washington County, died, leaving a will by which he devised one-third of his property, real and personal, to his wife, Mary Charlton, and all the rest and residue of his estate, real and personal, to he equally divided between his son Otho Charlton, his daughters Mary Anne Charlton, Eliza Jane Charlton and Malinda Charlton. He appointed William Corby his executor, who qualified as such and returned an inventory of the estate. Afterwards he returned a list of sales, passed an account, and in April, 1853, made distribution of the balance which that account showed to he in his hands.

In 1854, Corby died. In 1818, the appellants filed a petition in the Orphans’ Court of Washington County, setting out the facts hereinbefore stated, and filing copies of said inventory, and list of sales, and his account and distribution which form a part of this record. It also ⁴⁹⁷ charges that said Jonathan Charlton left, as part of his personal estate, certain leasehold property in the town of Williamsport, in Washington County, which was appraised and returned in the inventory of said executor, the same being an unexpired portion of a lease for ninety-nine years, and alleges that said leasehold property had never been sold by said executor, nor divided in any way among the legatees, but remained undisposed of until this time, and filed with the petition, a copy of the instrument by which the testator acquired the property, a copy of which is also in the record. The petition also states that Mary Anne Charlton and Otho Charlton had both died without children or descendants, and that Eliza Jane Charlton had intermarried with Stansberry S. Neal, one of the petitioners, and Malinda'-' Charlton had married Robert Cottrell, and that the widow and all the parties lived in Washington County.

The petition further alleged, that no further administration of the estate had been granted since the said executor’s death, and alleged that such administration de bonis non ought to be granted; and further stated that Thomas Charlton, the oldest child of the testator, was applying for such administration, and prayed process against said Thomas Charlton, the said widow and the other parties to bring them in that they might abide such order as the Court might pass. None of the parties answered, except Mary C. Charlton, the widow, who admitted all the facts alleged, except that the respondent insisted the executor had sold the property to her, and she had paid him for it, and it could not be pursued in this way ; and insisted that the claim was stale, and after so long a time the Court would presume the payment of debts and legacies, and that the petition should he dismissed. She also claimed that, if administration de bonis non was granted, it should be granted to her. The Orphans’ Court dismissed the petition, and appeal having been taken to this Court, the ⁴⁹⁸ only question is, should the petition have been dismissed,, or should letters of administration have been granted to some one?

In the order dismissing the petition, the Court, refused to grant letters to Thomas Charlton, and their order in that regard forms no ground of appeal,