Gardiner and Bowling vs. Hardey and Simms.-1842. strong array of circumstances against her, and her utter ignorance of the existence of that receipt, by which only the claim could have been successfully resisted. Even after the judg ment, her suspicions do not appear to have slept. She called on Simms to obtain all the information she could upon the subject; and when, subsequently, her suspicions of foul play were increased by Simms' refusing to credit the payments she made to the judgment, to which she directed their application; as a last resource, a forlorn hope, she determined herself to search the papers in the hands of her co-administrator, and on that examination, the discovery of the receipt took place. One administrator, in no wise assenting thereto, is not liable for the consequences of the negligence or misconduct of a co-administrator. And it would, in this case, be rather a severe measure of justice to visit on Mrs. Gardiner the results which should attach to the delinquency of Bowling. We are, therefore, of opinion, that Mrs. Gardiner is entitled to have the judgment of which she complains stricken out, and her case brought up by regular continuances to the ensuing term of Charles county court, where the case is to be tried as if no judgment therein hadever been rendered. Having expressed this opinion as to the judgment rendered against Clarissa Gardiner, it follows as a necessary consequence, that the judgment against William F. Bowling must share the same fate; both judgments being rendered in a joint action against the two defendants, the same judgment must be rendered against both. The judgment against Bowling must, in like manner, be stricken out, and the case brought up by continuances, and both cases be consolidated and tried. As respects the payments made to Edward Simms by Mrs. Gardiner, since the rendition of the judgments against her, this court will, of course, direct them to be altogether credited on the judgments rendered against the appellants on the note of the intestate for $1,815. DECREE REVERSED WITHOUT COSTS. Offutt and Clagett vs. Gott.-1842. CHARLES OFFUTT AND HENRY CLAgett vs. WILLIAM C. GOTT.-December, 1842. Pending a caveat to a nuncupative will appointing an executor, the orphans court granted letters of administration pendente lite. After this, the caveat was overruled, and the will established by the orphans' court. The caveators appealed. This suspends all further proceedings before the orphans court, and while it is undecided, that court cannot proceed to grant letters of administration. Appeals from the orphans court are heard and determined at the term to which the appeal is taken. The act of 1798, ch. 101, sub ch. 2, sec. 9, gives the orphans court jurisdic. tion to decide a caveat to a will or codicil respecting personal property, or appointing an executor; the 11th section authorises either party, aggrieved by its decision in such cases, to appeal, declares, that such appeal shall stay further proceedings, and that the decree of the Court appealed to, shall be final and conclusive; and the 19th section of the 15 sub chap. of that act, does not warrant the granting letters of administration in chief, pending an appeal from a decree overruling a caveat to a will. APPEAL from the Orphans' Court of Montgomery County. On the 1st of November, 1842, the appellants, as the next of kin of Aaron Offutt, deceased, filed their petition in said orphans court, alleging, that they have by their petition filed this day, prayed the court to amend the record in the case of William C. Gott, libellant, against the appellants, respondents, that they may appeal from said decree when the same is amended, or whether the same is amended or not, which petition is now pending and undecided; that they have been informed and believe, that the appellee, notwithstanding the pendency of said proceeding, and prayer for said appeal, is about to make application for letters testamentary on said estate of Aaron Offutt, deceased; they therefore pray letters testamentary may not be granted until the appeal prayed for is finally decided, because your petitioners allege, that letters of administration pendente lite have been granted the appellants, which are valid and in force until the controversy concerning the will of the said deceased is ended, and because the said letters testamentary cannot with propriety be granted before the appeal is decided, and if the same are granted, the v.12 49 Offutt and Clagett vs. Gott.-1842. court here cannot provide for conforming to the decision of the court above, whether the said decision be eventually for or against the appellant, &c. On the 2nd November, 1842, the appellee answered the said petition, and alleged, that by decree of the 28th October, 1842, the nuncupative will of Aaron Offutt, so far as relates to the appointment of your petitioner, executor, was adjudged to have been lawfully made, and accordingly admitted to probat by said decree. The only object and purpose of said will, as set up, was the appointment of the appellee, his executor. Prayer-that letters may be granted under said will. On the 9th November, 1842, the orphans' court passed a decree, which, after reciting the proceedings in the case, and upon the nuncupative will of the deceased; its admission to probat; the appeal from that decree by the appellants, with the fact of their previous appointment as administrators pendente lite, decreed as follows: "and the court, considering the delay that may occur before the said Court of Appeals shall affirm or reverse the said decree, would operate great injury to the said estate, adjudge, &c., that the prayer of the said Charles Offutt and Henry Clagett be refused, and that letters testamentary be granted to the said William C. Gott, upon the personal estate of the said Aaron Offutt, upon his entering into bond, with security, to be approved by this court according to law. The petitioners, under the petition of 1st November, 1842, appealed to this court. The cause was argued before STEPHEN, DORSEY and CHAMBERS, J. By R. I. BOWIE for the appellants. DORSEY, J., delivered the opinion of this court. The appeal in this case has been well taken. The 9th section of the act of 1798, chap. 101, sub chap. 2, provides, that if any person caveat a "will or codicil respecting personal property or appointing an executor," the caveat shall be de Offutt and Clagett vs. Gott.-1842. cided by the orphans court. By the 11th section of the same act and sub chap., it is enacted, that either party conceiving him or herself aggrieved by the decision of the said court, relative to the probat, may enter an appeal; and that such appeal shall stay further proceedings of the orphans court; and that the decree of the court appealed to shall be final and conclusive. To grant letters testamentary thereon, pending the appeal taken from the decision of the orphans' court, is an act clearly prohibited by the act of Assembly referred to. Nor does the reason assigned by the orphans' court for its decree, give to it the slightest support. The appellate court, by which the decree for admitting the will to probat was to be reviewed, was to sit in less than one month from the time of awarding letters testamentary, and were bound by law to determine the appeal during its approaching session, so that there was no foundation for the reason assigned by the orphans court for their decree appealed from in this case, that great injury would result to the estate of the deceased by the delay of the Court of Appeals in deciding on the appeal. Nor was there any ground for the apprehension of injury to the estate, had the delay referred to, actually occurred, which the granting of letters testamentary was necessary to prevent; as there was no act, which, under the circumstances of this case, the orphans court ought to have authorised or required at the hands of the executor thus commissioned, which the administrators pendente lite were not equally competent to perform. Neither can the acts of the orphans court complained of, be sustained under the 19th section of the 15 sub chapter of the act of 1798, chap. 101, as the granting of letters testamentary was not in the case before us, a proceeding therein, "which may with propriety be carried on before the appeal is decided." The court will sign a decree reversing the decree of the orphans court, with costs to the appellants in both courts. DECREE REVERSED WITH COSTS. Darnall and wife vs. Hill and others.-1842. FRANCIS L. DARNALL AND WIFE US. PHILIP HILL AND OTHERS. December, 1842. R died in 1816, leaving a widow and minor children. In the following year the widow married D, who, with his wife and her children went into pos. session of the estate of R. In 1820, D was appointed guardian of the children; he remained in possession, cultivating and using the lands and negroes, &c., until 1832, receiving and selling the crops, and using their proceeds, when he delivered up the estate to the children, declaring he should not claim any thing for his wife's thirds of her first husband's estate. Upon a bill filed in 1833, by D and wife, against the heirs of R, claiming her third of the rents and profits of the estate, her right to dower being admitted, it appeared that D had delivered the crop of 1831, to W, one of the children. HELD, that if D had any claim for a proportion of the crops of 1831, it was against W, at law, and that he could not recover against the other defendants, prior to filing his bill in 1833, and that, under the circumstances the complainants were not entitled to interest on their portion of the rents and profits, when ascertained. It is against equity to permit a party to take advantage of a course of conduct, pursued by another in consequence of the declared intentions of the claim. ant, made with full knowledge of his rights. Where a widow's right to dower is admitted, she is, before its assignment, entitled to an account of the rents and profits of the land, and one-third of the nett amount thereof, as her proportion. In a bill for a widow's proportion of rents and profits in lieu of dower, her right being admitted, no allegation of a demand for an assignment of dower is necessary. The heir in possession is answerable for damages from the death of the husband, even without demand, unless he plead tout temp prist; and even then, he is liable from the date of the subpœna against him. Upon a bill by husband and wife, claiming a portion of rents and profits, as damages for the detention of her dower or in lieu of dower, the defendants, the heirs of the first husband, cannot set-off a demand which they may have against the second husband, for the use and occupation of the land during their minority. The two claims are not due in the same right; and that for damages would survive to the wife. Where the proof shews that the defendants were in possession of land, as heirs at law, the legal presumption would be, that such possession continued until the contrary was shown. According to the practice of the court, an account charging rents and profits may be brought down to the date of the decree in this court, or the Court of Chancery, or to the time of the delivery of possession of the dower asssigned to a widow. On the 2nd October, 1833, the complainants filed a bill claiming an account of rents and profits, and a proportion thereof as due one of them for dower in her deceased husband's estate. On the 3rd of the same month, the same |