
    [268] Administrators of G. STILES against MARTHA STILES.
    ON CERTIORARI.
    Suit for maintaining child lies not against his father’s administrators or executors.
   This ease is sufficiently stated in the opinion delivered by the Chief Justice.

[*] Kirkpatrick, C. J.

— Upon looking into this record, the proceeding appears to me to be quite extraordinary.

Martha Stiles, the plaintiff, files her account in these words, viz.:

With this account was filed also the order of the Orphans’ Court therein referred to, which order in these words, viz.: “ Capto May Orphans’ Court, Term of October, 1806. On application of Martha Stiles to this court, for keeping and maintaining Ezekiel Stiles, son of George Stiles, deceased, the court allowed one d,ollar per week for the maintenance of said child.”.

This account, therefore, grounded on this order, is the foundation of this suit. One of the defendants appeared, and pleaded verbally no assets, and also filed an account against the plaintiff for certain articles of the intestate’s estate, which she had purchased from the said administrators, amounting to §80.48. The cause was then adjourned; and on the day of adjournment the plaintiff appeared — and thereupon, the justice, in the absence of the defendants, proceeded, as he says, to try the cause, and rendered judgment for the defendants in their absence, for §12.08 of debt, and 70 cents of costs.

Giles, for plaintiff.

Had the proceeding of the justice been less liable to exception than it is, yet the very ground of the action itself, appears to me, to be unsound. It is no part of the duty of an administrator, as such, to maintain the children of the intestate. Each child is entitled, either [*] by itself or its guardian, to receive its distributive share of the estate after payment of debts, &o., and that is all the claim it can have against the administrators. They are no more liable for such maintenance than any other person, unless it be upon express contract, and that is not pretended here. It is true, that by the 11th section of the act constituting the Orphans’ Court, it is enacted, that the court shall have full power and authority to order and decree a reasonable allowance for the maintenance and education of young children of persons dying intestate, &c., [269] out of the personal estate of the deceased, &c. And upon this section, I presume (for I can find no other color of authority,) the Orphans’ Court, iu this case, must have grounded their order. But if they have gone upon this, they have been unfortunate in one thing, viz., that this very section, on the 18th Feb., 1799, more than seven years before the making of their order, was repealed by the Legislature. The court, therefore, have proceeded without authority; their order is void, and the account founded upon it as against these administrators, is unlawful. Reverse.

Rosseij., J., and Piínkxsg-to.n, J. — Concurred.

Judgment reversed.  