
    Renwick vs. Cooper, administrator, &c. Cooper, administrator, &c. vs. Renwick and others.
    Proceedings to revive an appeal to the chancellor from the sentence or decree of a surrogate must be in the same form, substantially, as proceedings to revive a suit upon an appeal to the chancellor from an order or decree of a vice chancellor, in a suit commenced in the court of chancery.
    Where two persons having separate and distinct interests in the estate of the decedent, appealed from the sentence or decree of the surrogate upon the settlement of the accounts of the administrator, and one of the appellants assigned all her interest in the estate to other persons and died before any further proceedings were had upon the appeal, and the other appellant, being a female, afterwards married, and neither the surviving appellant and her husband, nor the assignees of the deceased appellant, caused the proceedings upon the appeal to be revived within eighty days from the time of such abatement of the suit, the appellate court, upon the application of the respondent, made an order that the assignees, or the surviving appellant and her husband, cause the proceedings upon the appeal to be revived, in the names of the parties then interested therein, within a specified time, or that the appeal be dismissed, with costs to be paid by the surviving appellant.
    Where a respondent, in an appeal from the decision of a surrogate, assigns his interest in the subject matter of the appeal, and afterwards dies, the proceedings must be revived against the assignees of such deceased respondent.
    1843. August 1.
    And where the appellant had not filed his petition of appeal before the abatement of the proceedings, by such assignment and death of the respondent, the appellant should state in his petition of appeal the fact of such assignment and death, and the names of the persons who have become interested in the appeal in consequence thereof, and should insert a prayer therein that they may answer such petition of appeal.
    And upon the filing of such petition of appeal, the appellant is entitled to the usual order that the persons thus made respondents therein put in their answer to the same within twenty days, after service of a copy of such petition of appeal and notice of such order, in the manner prescribed in the 118th rule of the court of chancery, or that the appellant be heard ex parte.
    But if any of such respondents are infants, a guardian ad litem must be appointed, and the order to answer must be varied accordingly, as directed by the 118th rule.
    This was an application by J. T. Cooper to dismiss the appeal in the first entitled cause, and to revive the proceedings upon the last appeal, or for such other order as might be proper under the following circumstances. Olivia E. Renwick was the administratrix, and J. T. Cooper the administrator of J. Renwick deceased, and both were cited to account before the surrogate of Rensselaer county, and the final sentence and decree of the surrogate was made in March, 1830. From a part of that decree Jane Renwick, the mother of the decedent, and Olivia E. Renwick, his widow, who were entitled to distributive shares of his estate, appealed to the chancellor; and J. T. Cooper, the administrator, appealed from another part of the decree. The first named appellants filed their petition of appeal, but the persons who were intended to be made respondents therein were not named. Before any further proceedings were had on either appeal Jane Renwick died, having in her lifetime assigned all her property to James and William Renwick as trustees for herself and children. And Olivia E. Renwick, the other appellant in the first appeal, and one of the respondents in the last, intermarried with Orrin Goodrich.
    J. Van Buren, for J. T. Cooper.
    
      J. Rhoades, for Mrs. Goodrich.
   The Chancellor.

In the recent case of Jauncey v. Rutherford, (9 Paige’s Rep. 273,) it was decided that the proceedings to revive upon an appeal, to the chancellor, from the sentence or decree of a surrogate, were to he substantially in the same form as the proceedings to revive a suit upon an appeal from the order or decree of a vice chancellor, in a suit commenced in chancery. Here one of the appellants has died, after assigning all her interest in the subject matter of the appeal to trustees ; and the other being a feme sole at the time of the appeal, has subsequently intermarried with one who is not a party to the appeal. As neither the survivor and her husband, nor the assignees of the deceased appellant, have caused the proceedings to be revived within the eighty days mentioned in the statute, (2 R. S. 185, § 124,) this appears to be a proper case to require the surviving appellant and her husband, and those who represent the deceased appellant, or one or the other of them, to cause the proceedings to be revived, in the names of the parties now interested in the subject matter of the appeal, within a limited time, or that such appeal be dismissed, with costs to be paid by the surviving appellant. The English practice appears to be, where the suit abates before decree, by the death of a sole complainant, or of all the complainants where there was more than one, to require the representative to revive the suit within a limited time, or that the bill be dismissed without costs. (Chowick v. Dimes, 3 Beav. Rep. 290. Canham v. Vincent, 6 Lond. Jur. 206.) And such was the effect of the decision of Chancellor Sanford in the case of Pells v. Coon, (Hopk. Rep. 450.) But by the revised statutes, this court, in such cases, is authorized either to order the revival of the suit in the names of the representatives of the deceased complainant, where the defendant has any interest in having it revived, or to direct a dismissal of the bill with costs, where the defendant merely wishes to get the suit out of court and to obtain satisfaction for the costs already accrued. (2 R. S. 185, § 119.) In the present case the respondents in the first appeal have no interest in having the proceedings upon that appeal revived, if the surviving appellant and her husband, or those who have succeeded to the rights of the deceased appellant, do not think proper to revive and prosecute the appeal for their own benefit. The proper course, therefore, is to dismiss that appeal with costs, to be paid by the surviving appellant, if she and her husband, or those who now represent the interest of the deceased appellant, do not cause the appeal to be revived within sixty days after the entry of the order upon this decision.

In the case of the cross appeal, by the petitioner Cooper, it appears that the respondent, Jane Renwick, assigned all her property to trustees previous to her death. As they have succeeded to her interest, the appeal should be revived against them, as the parties now in interest; and the case should then proceed against them, and against Mrs. Goodrich and her husband, and the other surviving respondents if there are any others. An order must therefore be entered accordingly. And in this case, as the appellant ‘does hot appear to have filed his petition of appeal, the proper course for him is now to file such a petition, stating, among other things, the death of one of the respondents and that the trustees have succeeded to her rights, and the intermarriage of the respondent Olivia E. Renwick pending the appeal, and praying that she and her husband and the said trustees, and such other persons interested in the decision appealed from, as were intended to be made parties to the appeal, (naming them,), may answer such petition of appeal, &c. And upon filing such petition of appeal the usual order may be entered, that the respondents therein put in their answers to the same within twenty days, after service of a copy of the petition of appeal and notice of the order in the manner prescribed by the 118th rule of this court, or that the appellant be heard ex parte | unless some of the respondents are infants, in which case a guardian ad litem must be appointed, and the order to answer must be varied accordingly.

The better course, in this case, on the part of the appellant Cooper, would have been to have combined the petilion to revive and the petition of appeal, and the prayer to answer the same,in one petition ; in analogy to a bill of revivor and supplement, where the original bill had not been answered previous to the abatement of the suit. But as that has not been done in this cash, a petition of appeal must still be filed, stating therein the order to revive which has been made upon the present petition. And if the appellant. succeeds in his appeal, and recovers costs thereon, he will only be entitled to such costs as he would have received if the petition of appeal and the petition to revive had both been embraced in the same petition.  