
    L. W. Trumbo vs. Alfred P. Reigne.
    
      Ordinary — Guardian—Jurisdiction.
    The Ordinary of the district in which a will has been proved, and in which the executor makes his returns, may appoint a guardian for a minor entitled to a legacy, under the will, of five hundred dollars, and may cite such guardian to account before him.
    BEFORE WARDLAW, J., AT CHARLESTON, Al AY TERM, ' 1857.
    The report of bis Honor, tbe presiding Judge, is as follows:
    '' Louisa Eeigne bequeathed by will a legacy of five hundred dollars, to her niece Stephanie. The Ordinary appointed Alfred Eeigne guardian of Stephanie, then a minor. Stephanie intermarried with L. W. Trumbo, and died. Trumbo became administrator of her estate, and petitioned the Ordinary for a citation against her guardian.. A citation was issued and the guardian, Alfred, objected, that the Ordinary had no power to appoint or cite a guardian, except in case where the minor is entitled to a distributive share of an .intestate’s estate.
    
      “ The Ordinary held, that he could appoint a guardian of personalty to a minor in any case, issued the citation, and decreed payment to be made by A. Eeigne to Trumbo.
    “Alfred Eeigne appealed, and filed a suggestion setting forth these matters.
    “ I held' that the Ordinary’s power to appoint and cite a guardian was not confined to cases of intestacy, but extended to a case where the minor’s estate, less than one thousand dollars, was in the hands of an executor, to whom the Ordinary had granted probate, and who made returns to the Ordinary.
    
      “ The appeal was dismissed.”
    The appellant appealed to this Court on the ground
    That the Ordinary has no jurisdiction to appoint a guardian to a minor, or to call a guardian to account before him, except in the case of a guardian appointed for a minor >'■ n-titled to a distributive share of an intestate’s estate.
    Simons, for appellant,
    cited Act 1745, § 1, 2, 6, P. L. 201, 3 Stat. 666; Act 1789, § 28, P. L. 495, 5 Stat. 112; Act 1839, § 27, 31, 11 Stat. 45, 47; Act 1846, 11 Stat. 358 ; Act 1808, 5 Stat. 570; Act 1824, § 12, 7 Stat. 328; Howard vs. Faber, 2 McO. Oh. 446; Balcer vs. Lafitte, 4 Eich. Eq. 395 Bac. Abr. Tit. Guardian ; 3 Atk. 631; 3 Bur. 1436 ; 4 Stat. 471; P.L. 387; 1 Des. 56.
    Mowry, contra,
    cited Eee bill of 1791, 5 Stat. 159.
   Pee Cttexam.

Tbis Court feels bound by tbe authority of tbe case of Howard vs. Faber, 1827, (2 McC. Cb. 446,) wbicb seems to bave been ably argued' and carefully considered, and bad tbe concurrence of tbe whole Court of three, then tbe appellate tribunal for all cases, both of law and equity. If tbe evils wbicb would then bave resulted, from tbe denial of tbe power wbicb Ordinaries bad long exercised, of appointing guardians of tbe persons and personal estates of minors, would bave been greater than any foresight could bave anticipated, vastly aggravated would be tbe evils of now overruling that decision. Beginning then with a firm reliance upon what has been settled, we find nothing in subsequent legislation wbicb deprives tbe Ordinary of tbe power be has exercised in. tbe case before us. Tbe 31st section of tbe Ordinary’s Act of 1839, (11 Stat. 47,) was clearly restrictive. If it related to intestate estates only (as tbis appellant supposes) then it leaves untouched tbe power as to testate estates, wbicb tbe Ordinary before possessed. Tbe Act of 1846, (11 Stat. 358,) only increased tbe sum wbicb by tbe Act of 1839 was made tbe limit of juris-d-1 jtipn, and whether its words do, (as tbe appellant supposes) or do not, more clearly than those of tbe Act of 1839, confine its provisions to cases of intestacy, they in no way deny tbe power as to cases of testacy within tbe limit. Tbe debatable questions are, whether tbe Ordinary’s power to appoint a guardian, for tbe personal estate of a minor, in cases where that estate arises under a testament is confined to cases where tbe executor under the testament is accountable to tbe Ordinary, and has been decreed by him to owe a certain sum to tbe minor; and whether the limit of three thousand dollars, fixed by the Act of 1846, applies to such cases under a testament. The decision of these questions is not necessary in the case before us. Under any view of them, the Ordinary here had the power which the appeal challenges: and- therefore, without going beyond what the occasion requires, the Court dismisses the appeal, and confirms the order of the Ordinary.

Wardlaw, Withers, WhitNer, Grover, and Mthstro, JJ., concurring.

Motion dismissed. 
      
       Hon. John B. O’Neall absent, holding Circuit Court for Charleston.
     