O'Daniel v. Lehre

21 S.C. Eq. 83

• Court: Court of Appeals of South Carolina
• Decided: April 15, 1848
• Status: Published

Opinion

Johnston, Ch.

delivered the opinon of the Court.

Where an executor is sued before the time allowed for ascertaining the debts of the estate, and objects to the prematurity of the suit, his defence is in the nature of a dilatory plea; and the long established practice in this Court is, not to dismiss the bill, but to order the plaintiff to pay the costs, and that the bill stand over. At the expiration of the time allowed to the defendant, the Court proceeds to the hearing.

There may be cases, but this is not one of them, when the bill may be entertained, even before the time usually limited; as when it is filed to preserve the estate from imminent danger of loss.

We are of opinion that the decree in this case should have been that the plaintiff pay the costs of the bill; and that the cause stand over: and it is so ordered.

The cause is also remanded to the Circuit Court. The year allowed to executors having now expired, the Court, when the cause comes again before it, may proceed to order the vesting of a sum sufficient to secure the plaintiff’s annuity, or whatever may appear proper under the pleadings. It may fee proper, too, if desired, to direct an enquiry whether the piainti£’s specific legacies hare been delivered to her. But we will not anticipate what decree may be required in the case.

It is ordered, that the Circuit decree be reformed agreeably to this opinion.

Caldwell, Ch. and DargaN, Ch. concurred.

Decree reformed.