HART'S EXECUTOR, PLAINTIFF IN ERROR,

v.

CHANDLER H. SMITH, DEFENDANT IN ERROR

The Chibe Justice delivered the opinion of the court.

Plaintiff in error contends that there was error in allowing the petitioner to' amend his petition so as to show the death of Edwin A. Hart, after the return and entry of the mandate of the Supreme Court, “ there being no case in court.” \

The Supreme Court, it is observed, merely reversed the order of the Circuit Court and remanded the cause for the further proceedings according to the law and practice. The defect appeared to be the want of a certain allegation in the petition. This court did no. dismiss the petition nor order it to be dismissed. The ease went back to stand as though no final order or judgment had been entered, and the matter still pending on the prayer of the petition and the auswer. After a cause is remanded to the inferior court, such court may receive additional pleadings or admit amendments to those already filed, even after the Appellate Court has decided such pleas to be bad on demurrer, unless the Appellate Court otherwise directs. The Marine Ins. Co., vs. Hodgson, 6 Cranch, 206; The U. S. vs. Boyd, 15 Peters, 187, 209.

The amendment was as clearly within the power of .the court as though the Circuit Court itself had held the pleading' defective for want of a necessary allegation. The statute relates to amendments of “ defects in any proceeding in civil causes.” Act of February 8, 1861.

The second error assigned is that the court refused (o allow an amended answer to he withdrawn for the purpose of moving to vacate an order allowing a rehearing and amendment of the petition.

There is no substance in this suggestion. The respondent having waived objection to an amendment of the petition by pleading to it should, not trifle with the patience of the court l>y thus withdrawing his waiver. The court had the .power to allow the amendment and properly exercised it.

The third error alleged is the order sustaining petitioner’s demurrer to respondent’s amended answer. The answer demuri'ed to averred, that respondent had not intermeddled or administered the effects of the estate of James L. Hart, deceased, and was not his executor, and that “ before the amendment,” he had, as the executor of Penelope Hart, deceased, filed in the Probate office a renunciation of all right to act or become the executor of said James L. Hart, deceased, which renunciation had been accepted and filed by the County Judge.

The rule, as laid down in the books, in the absence of a statute changing it. is, that if there he a sole executor of A., the executor of such executor is, to all intents and purposes, the executor and representative of the first testator. 1 Williams on Ex., 6 Am. Ed., 2'93, [254.]

In Worth vs. McAden,l Dev. & Batt E<p, 199, 209, it is said that “ where one who is fhe sole executor of another, dies after making a will and appointing executors, those so appointed may accept the office of executor to their immediate testator, and renounce the office of executor to his testator; but if they prove the will of their immediate testator generally, without such a renunciation, they become executors also of the first testator.”

It seems to he the uniform rule that so long as the chain of representation remains unbroken by any intestacy, the ultimate executor is the representative of every preceding testator. 1 Wms. Ex., 294, [255.]

McCall admits what is alleged in the petition that he was acting as executor of the will of Penelope Hart, deceased, at the time the notice was served upon him in this proceeding, and says that “ before making the amendment ” he filed his renunciation of the executorship under the will of James L. ITart, deceased. Whatever effect this renunciation may have, if any, toward relieving him of such administration, it is certain that wThen he qualified as executor under the will of Penelope Hart he became (not having renounced it at the time of so qualifying) the executor of the will of James L. Hart, and was such executor at the time of the inception of these proceedings. This was sufficient to authorize the court to act and to bind the estate by its judgment, and no act of the executor could divest the court of its power'in the premises.

The fourth error assigned is, that there was no evidence before the court showing that Edwin A. and Penelope Hart were the executor and executrix of the will of James L. Hart, deceased.

The first allegation in the petition is that petitioner had recovered a judgment against thorn as such executor and executrix. We cannot conceive that it is necessary to prove here what must have been proved before the cou’rt when the judgment was rendered against them.

All the facts necessary to warrant the order of the court re-establishing the execution are stated in the petition and proceedings before the court, and none of them are denied by the respondent, McOall, who appeared, after due notice, at every step in the case contesting and opposing the petitioner. He must he held to the ordinary rule., that what is not denied is admitted to be true.

We find no error in the judgment of the Circuit Court, and it is affirmed with costs.