WILLIAM TAYLOR AND OTHERS, APPELLANTS,

v.

GEORGE M. SAVAGE, EXECUTOR OF SAMUEL SAVAGE, DECEASED, DEFENDANT

Mr. Chief Justice TANEY delivered the opinion of the court.

This case is brought before the court-by the petition of Vincent M. Benham, administrator de bonis non with the will annexed of Samuel Savage.

It appears that a bill, was filed by William Taylor and others,, in the District Court of. the United States for the northern district of.Alabama, against George M. Savage, executor of Samuel Savage, deceased, to which the defendant appeared and answered. Testimony was taken on both sides, and at the final hearing on the 28th of November, 1842, the court decreed that the complainants recover óf the respondent, as executor of Samuel Savage, $5212 92 and costs, to be levied of the goods and chattels, lands and tenements of the said Samuel Savage. On the same day the Orphan?s Court of I audefdale county, in the state of' Alabama, having competent jurisdiction for that, purpose, removed the said George M. Savage from his executorship, and appointed Vincent M. Benham, the petitioner above mentioned, administrator as aforesaid.

Huntsville, where the District Court of the United States held its session, and Florence, where-the Orphan’s Court of Lauderdale county was in session, were distant from each other between seventy and eighty miles; and the new administrator, Vincent M. Benha-m,-does'not-appear to have known, of. the-decree until some days after it was passed. At the time of the decree Harvey Dillahunty was attending to .the suit in chancej-y as the.attorney in fact of George M. Savage, the respondent, and two days alter-wards, that is to say, on the 30 th of November, 1842, in the name of the respondent, prayed an appeal ; and the District Court, with the consent of the Complainants, passed an order giving the said George M. "Savage liberty to file an appeal bond at’ any time within twenty days from the adjournment of the court. Qn the 2d of December, the cómpláinants also appealed, and on the samé day gave the usual bond to cover costs, which was, duly approved; and the transcript of the record and proceedings had in the-cause in the District Court have been transmitted to and docketed in this .court in the names of the said William Taylor and others,-complainánts and appellants, against the said George MJ Savage, executor of Samuel Savage, respondent and a.ppellee.

The executor having been removed as aforesaid, no bond was • executed by him nor hy Vincent M.Benhám, the administrator,, within the'time limited by the court; and therefore an execution was issued by the clerk of-the District Court against the property of Samuel Savage, by virtue of which the marshal has seized the property of ;the said deceased, and' is about to sell the-same in order to satisfy the decree.

In this state of the proceedings, Benham, the administrator-, has filed his petition at the present term, setting forth the facts as above mentioned, and offering to file a transcript of the proceedings on his part and to .give security on his appeal, and praying that his bond may be approved by this court, and the execution issued by the complainants superseded until the appeal can be heard and decided in this court. Affidavits have been filed on both sides, but there is. no conflict between them in any circumstance deemed material by the court; nor do they vary in any .important particular from the statement contained in the petition.

We are by no means prepared to say that a complainant, after having appealed from a decree in his favour, can be permitted, pending the appeal, to carry into execution the decree which he is seeking to reverse, in the appellate court, in order to obtain 'a decree for a larger sum. But the relief asked for. by the petition cannot be granted, because there, is no-case legally in this court upon the appeal of either party, upon which process can be issued The decree in the Circuit Court is against George M. Savage, executor of the last will and testament *of Samuel Savage deceased.

• There was no other party respondent -.in the District Court, and the decree was passed-against him iii his representative-character. Before' the appeal-was prayed on either side, he had ceased to be the representative of the estate of' Samuel Savage, and hád no control over it, nor any right to interfere with it by prosecuting or appearing to an appeal, or in any other maimer. By his removal from the office of executor, he was as completely separated from the business of the estate as if he had been dead, and had no right 'o appear in or be a party in this or any. other court, to a suit which the law confided to the representative of the deceased.. No further proceedings, therefore, could be had on the decree in the District Court, until Benham, the administrator de bonis non, was made a party.

In this view of the subject, it follows, 1. That the appeal of the complainants is not regularly before this court,.and the irregularity cannot be cured here unless the administrator voluntarily appears to it. The case may, however, upon the'application of the appellants, be remanded to the District Court, with leave to make the proper parties.

2. The execution issued on the decree was unauthorized and void, and no right of property will pass by a sale under it, if one should be made by the marshal.

3. The appeal of Benham, the administrator de bonis non, is also irregular; and the case cannot be brought here by him unless he is first made a party in the District Court.

But he may be made a party there, either upon his own application or that of the complainants, according to the rules and practice in chancery proceedings. And whenthis has been done, the administrator may take an appeal; and upon giving bond within the time prescribed.by law, all proceedings upon the decree will be stayed in the District Court, until the decision of this court shall be had in the premises. And if he fail to give the bond within the limited period,- the complainants will then be entitled to process from the District Court, in order to enforce it. As the case now stands, there is no suit here upon which this court can fotlhd any process to set aside the execution improperly , issued, and the petition of Benha.m, the administrator, must be dismissed.

order. Ón consideration, of the petition of Vincent M. Benham, filed in, this case, and of the arguments of counsel thereupon had, it is how here ordered by this court that the, said petition be. and the same is hereby dismissed. •