Marriot et ux v. Davey et al., Executors

Marriot et ux v. Davey et al., Executors. Action for legacy. A settlement of an administration account by referees, on a citation before tbe register, held not to be conclusive, in an action for a legacy. This was an action brought by a residuary legatee under the act of the 12 Geo. III., c. 16 (1 Sm. L. 333), to which the defendant pleaded fully administered. The plaintiff, thereupon, moved for the appointment of auditors ; but the defendant objected, because his account had been already left, by consent, to referees, on a former citation before the register of wills, &c. Rawle, for the plaintiff. Sergeant, for the defendant. [MAJORITY — The Court,] The Court, however, determined, that the former settlement was not conclusive ; and that, by the words of the act, it was intended, new auditors should be appointed, ex tempore, upon the plea of want of assets, In Kohr v. Fedderhaff, 4 S. & R. 248, it was held, that a settlement of an administration account, in the orphans’ court, was not conclusive, in an action for a distributive share. So, in Miller v. Young, 2 Id. 518, it was held, that a settlement in the orphans’ court, made after the commencement of the action, which was for a legacy, was not conclusive upon the plaintiff; but the court declined to decide whether such settlement would have been conclusive, if made befm'e the commencement of the suit. See also, as to the effect of such settlements, McCullough v. Montgomery, 7 S. & R. 31; McGrew’s Appeal, 14 Id. 396; Sutton v. Connelly, 1 Bro. app’x lxiv.; McPherson v. Cunliffe, 11 S. & R. 431; Blount v. Darrah, 14 Id. 184, in note.