Callahan vs. Administrator and Administratrix of Thomas and William Smith

Minutes of Superior Court, letter F.p. 460. Callahan vs. Administrator and Administratrix of Thomas and William Smith. ADMINISTRATION. Br an order of the 9th January, 1806, administration on the estate of Thomas and William Smith was granted by the court of ordinary unto Susan M. Smith, widow of William Smith, and Joseph Welscher, a creditor of Thomas Smith. On the 6th February, the court, being notified of the death of Joseph Welscher, one of the administrators, directed a settlement of his accounts by his attorney, and the administration bond of the said William Welscher to be cancelled. On the 6th of April, 1807, a vacancy in the administration was declared to have taken place, and that the qualified administra-trix, Susan M. Smith, had not given the bond and security that could be approved of by the court; on the 13th August, Alton Pemberton, gave the security required by the court, and was joined in the administration with Susan M. Smith. And by an order of the 3d March, 1806, letters ad colligendum which had been granted to William Callahan, and Susan M. Smith were revoked. Actions were instituted against Alton Pemberton and Susan M. Smith upon the supposition, that the year given by law to administrators had expired, as the time ought to be computed from the 7th July, 1806, when letters of administration were granted to Joseph Welscher and Susan M. Smith, the former administrator and administratrix. It was now contended by the counsel for Alton Pemberton and Susan M. Smith, that the administration formerly granted to Susan M. Smith was suspended and revoked by the court of ordinary on the 6th of April, 1807, and that the administration from that period, was never complete or efficient, until the 13th August, 1807, and upon these grounds a motion was made to dismiss the actions brought against the present administrator and administratrix, one year not haring expired from the granting of the administration. Lawson, Davies and Berrien, for Plaintiff. Mitchell and Bulloch, for Defts. [MAJORITY — Charlton, Judge :] Charlton, Judge : The requisites of the law not being complied with, the courts of ordinary certainly possess the power of revoking administrations, or of declaring them vacant. An administration cannot be recognised as completely efficient and operative, until the security shall have been given which the court of ordinary may require. This appears never to have been done by Susan M. Smith : the virtual revocation of the court of ordinary was therefore founded upon a correct principle. If the security had been given by Susan M. Smith, to the extent required of her by the court of ordinary, I would consider the present administration as a continuation of the former, and would therefore compute the time from the 7th July, 1806 ; but the former administration, so far as it relates to Susan M. Smith, never having legally and efficiently existed, I am of opinion, that the granting letters of administration to Alton Pemberton and Susan M. Smith, was the commencement of a new and different administration ; and they consequently should be allowed one year from the 13th August, 1807, at which time they had complied with all the requisites imposed upon them by the court and the law. It is therefore ordered, that actions brought against Alton Pemberton and Susan M. Smith, administrator and adminis-tratrix of Thomas and William Smith, returnable to the present term, be dismissed.