Jamison v. Jamison's Will , 8 Del. 217 ( 1865 )

Issue of devisavit vel non. Since the issue was sent up at the last term of the court, and since it was tried at that term without resulting in a verdict, Anna Jamison, one of the caveators in it had died, and the Register at this term had addressed a communication to the court setting forth the fact and requesting that the issue so sent up to this court, might for that reason be returned to him by the court. D. M. Bates, for the caveators, thereupon submitted a motion to the court for a continuance of the case in court until proper parties could be made to the issue in consequence of her death. The suit, or the issue, had not abated either here, or before the Register, by reason of her death, but had survived and was still subsisting, and it should not be dismissed, or sent back to the Register by the court, notwithstanding he had desired it for the reason and purpose stated by him; but it should be retained here until he could go before that officer, which he intended to do, and have her death suggested and the proper parties made to it, and when that had been done, he could certify the same to the court and they would become parties to it here, and the issue as so reformed and amended, would proceed as if so issued originally in the case. And that he was satisfied was the only proper course to be pursued under the circumstances.

The Court thought otherwise, and without any argument from the other side, ordered the issue to be returned to the Register in accordance with his request.