#### *Wilkinson vs. Perrin.*

chancery.

Case 34.

Error to the Madison Circuit Court; Geo. Shannon, Judge.

*Parties. Practice in this Court. Executor.*Distributeeft.

Bill by L. Wilkinson,

April 29.

Judge Mills,

delivered the Opinion of the Court.

Lydia Wilkinson, one of the daughters and devisees of Josephus Perrin, deceased filed her bill for a settlement and distribution of *the estate of*
      *215her father, making Josephus Perrin the son and administrator, as well as the other distributees, parties to the suit.

Parties, and distributees.

Decree.

In a bill for distribution, all ought to be settled.

When the proper parties are not before the court, this court -will never decide the merits, except when *216an insuperable obstacle to the complainants relief is found, and his bill is dismissed, this court will on , that ground affirm.

*215Among them, two are dead, to-wit: Mrs. Kennedy, late Perrin; and her surviving husband, and her children, are made defendants. William C. Perrin, a son, is also dead, leaving children who are made defendants.

Samuel Harris, the husband of a daughter of Mrs. Kennedy, who (with his wife,) is made defendant, sets up a claim for the entire share of one of the other heirs, Mrs. Moore and her husband, who are still living; and he makes his answer a cross billagainst the administrator, and the rest of the distributees parties, *except*that he does not make Kennedy defendant, and inserts Mrs. Wilkinson in lieu of himself; otherwise, his cross hill agrees with the bill of Mrs. Wilkinson, and asserts the same interest. The administrator, with the will annexed, answered both of these bills. Against some of these defendants, publication was made as non-residents.

The court decreed a division of the slaves of the decedant, and both Mrs. Wilkinson and Harris have prosecuted, each, their writ of error, and complain that many errors to their prejudice, were committed by the court below, on the merits of the controversy.

In this their complaint is well founded. For not to mention any *more, their*bill claims a settlement of the personal estate, and the inventory is filed, and it is not shewn how that part of the estate has been expended; and yet, the court has not liquidated that matter, or given them any decree. For this, and other reasons, the decree .must be reversed.

But We forbear to *go*further into an investigation of the merits; because it is the uniform practice of the court, when a decree is reversed, at the instance of one party, to suppose the cause is open as to the errors of both parties, and all will be noticed and rectified, on reversing the decree. We at once discern, that there is a defect of parties to both bills, which forbids the complainants in both, from a decree on the merits.

*216Where the wife’s father dies during the coverture, the husband becomes entitled to the share of slaves and other person- ' alty, and their children have no interest.

Editor, publisher or printer must certify the publication of *217tjle onlor for the appearaace of an absent defendant.

*216It has been urged, that this defect of parties, ought to preclude these complainants from any redress on their respective writs of error. It is true, when on the merits of a controversy, a bar or obstacle to tire recovery of the plaintiff in error is perceived, this court will not reverse, for it would he idle to opens contest which must be fruitless, and end again in abor'tion. No error can be committed against a plaintiff in error, who has no right or interest at stake. ^But it would be rigid-, to deny relief against error to a plaintiff who has a meritorious claim, in which he has been defeated by the judgment or decree of the inferior court, barely because he had omitted to make a necessary party. In such case, we reverse for error on the merits, and then leave them to *touch the defect of*parties, and send the cause back, that these parties may be made, passing the merits generally with much silence; because it would be useless to investigate them minutely, when either party is at liberty, by new pleadings, or *evidence,*to change them materially, before the cause comes to another hearing.

We will, therefore, proceed to point out the defects in parties.

We will first however, remark, that it was unnecessary to make the children of Mrs. Kennedy, parties. Their father is still living, and it appears by the will of the testator, that her right accrued during her coverture, and in such case, according to the uniform decisions of this court, her husband having survived her, is entitled to her interest as survivor, and as husband, even without administration on the estate of his wife. Harris, therefore, alone, need be retained in the bill of Mrs. Wilkinson, notar having an interest in. right of,;his wife, as heiress or distributee of her mother, but in his individual right, as purchaser from another daughter of the testator and her husband.

We would further remark, that in the certificate proving the publication against- the absent defendants, it does not appear, that the person certifying, was the publisher or printer of the paper. For any thing that appears, this certificate might have *been*
      *217given by an apprentice in the office, or by some one wholly unconnected with the publication of the paper. It is to the editor alone, that the law has attached the same confidence that is given to the return of an officer. But then, proceedings against absent defendants, have been held, by the uniform decisions of this court, to a strict compliance with the letter of the act, and nothing can be supplied by intendment. This proof was, therefore, insufficient.

Executor & not the chil^“¡ofea?is" entitled’toreceive, must be ma<Je a aurtfordStrltuition,

Executor or adm’or of the ^ed°before0 receiving her distributive share, must party. 3 a

Mandate for new parties,

The parties necessary to a correct settlement of this controversy, which are not made, will now be noticed. William C. Perrin, one of the sons mentioned in the will, has, since the death of the testator, departed this life. His heirs or distributees have been made parties, but his personal representative is omitted. It seems to have escaped the counsel who conducted the cause below, that the executor or administrator-of W. C. Perrin, could alone take the estate, and that if it was settled with his heirs, it must escape the grasp of his creditors. According to the well settled law of this court, the personal representative ought, therefore, to be added.

The widow of the testator survived him for many years — perhaps near thirty. The will, after giving specific legacies, gave her all the rest of the estate during life. She renounced the provisions of the *will; of course, she became entitled to one*third of the lands and slaves, during her life, and one third of the personal estate forever. No dower or distributive portion of the personalty was ever assigned to her. Of course, her personal representative became a necessary party; for only with such representatives can her share of the personal estate be settled.

It seems to the court, that there is error in the decree of tlie court below, on the merits; but as the proper parties were not before the court, this court will not direct what kind of decree is to be there entered; but after a reversal, the cause will be remanded, that the complainants may amend their respective bills, in a reasonable time to be there allowed *218for that purpose, if they shall elect so to do. But if such election is not made, that each bill shall be dismissed with costs, and without prejudice to any future suit, for the same cause of complaint. The defendants in error to pay costs in this court.

*Turner*and *Caperton,*for plaintiffs; *IJaggin*and *Loughborough,*for defendants.