#### Findlay, Executor &c. v. Sheffey.

March, 1822.

Chancery Practice — Suit for Legacy — Parties‡—Case at Bar. — A testator devises certain real property to be sold, and the proceeds to be divided in different proportions,' among several legatees: and appoints two executors, both of whom unite in the sale of the said property. One of the legatees assigns his interest in the legacy to a third person. The assignee brings his suit in chancery against one of the executors only, and without making the other legatees interested in the sale of the said property, parties. On both grounds it is error in the court to render a decree in favor of the plaintiff. The court should also have an account of the *37sales of the said land, before rendering a final decree for any particular sum; notwithstanding the defendants have not answered, and the bill is taken for confessed.

This was an appeal from the Wythe chancery court.

The case, presented by the bill and exhibits, was this: Thomas King, by his last will, devised certain houses and lots in the town of Fincastle to be sold by his executors, and the proceeds to be divided among certain legatees, in the following proportions, viz: to the children of his son *and daughter Connally and Nancy Findlay, two fifths: to his son and daughter John and Elizabeth Mitchell, two fifths: and to his son and daughter J ohn and Hannah Allen, the remaining one fifth. He appointed three executors, only two of whom, Findlay and Mitchell, qualified. Allen, one of the legatees, transferred his legacy to Daniel Sheffey, for valuable consideration. The property, devised to be sold, was accordingly sold by both the acting executors. Sheffey brought a suit in Wythe chancery court against Findiay, one of the acting executors, and Allen the assignor, to recover the legacy due to Allen, and which had been transferred b3ar him to Sheffey. The defendants not answering, a decree nisi was obtained against them, and duly served. On motion of the” plaintiff, the accounts between the parties were referred to a commissioner. No account was taken; but at a subsequent term the chancellor made a decree, that the matter of the plaintiff’s should be taken for confessed, and that the defendant Findlay should pay unto the plaintiff, four hundred dollars,* being the amount of the legacy left by Thomas King to the defendant John Allen and Hannah his wife, with interest on the same from the 9th day of May 1812, until paid, and the costs expended by the plaintiff in the prosecution of his suit.

The defendant Findlay obtained an appeal upon petition to the judges of this court. In the petition five errors are assigned. 1. Because the other devisees of an undivided interest were not made parties, as the rules and practice of courts of equity require. Richardson’s executors v. Hunt.(a) 2. Because Mitchell the co-executor was not made a party, he having proved the will, and the bill charging that he joined in the sale. 3. Because the wife of the said Allen was not a party, the interest in *the legacy to her being hers until reduced into possession, and it being questionable at least, whether the Fincastle property could be considered as personal estate in the hands of the executors. 4. Because no final decree for any specific sum, ought to have been rendered, but an account ought to have been taken, that the nett balance might certainly appear, and any offsets exhibited; the order taking the bill for confessed, being only an admission that the plaintiff was entitled to an account. 5. Because the decree was not made on the usual and proper condition, that the plaintiff should give a bond to refund, in the case of creditors being unsatisfied.

The case was argued in this court, byWickham, for the appellant, and Johnson, for the appellees.

‡

See principal case cited in Terry v. Fontaine, 83 Va. 458, 2 S. E. Rep. 743; Snider v. Brown, 3 W. Va. 146.

*

The only part of the recora from which this precise sum can he obtained is the plaintiff’s hill, in which he says that the two executors " ‘sold the property in Fincastle for the sum of $2000, as your orator is informed.” — Note in Original Edition.

(a)

*2*Munf. *14S.*

*

Judge Roahe was absent from indisposition.

JUDGE BROOKE,

delivered the opinion of the court.*

The court is of opinion, that the other devisees interested in the Fincastle property, ought to have been made parties, and an account of the sales of that property taken. The court is further of opinion, that John Mitchell, the other executor, ought also to have been before the court, it being alledged in the bill that the sale was made by them jointly, and that_ the said decree is erroneous; therefore, it is decreed and ordered, that the same be reversed and annulled, and that the appellee do pay unto the appellants the costs, as well by themselves as by their intestate expended in the prosecution of the appeal aforesaid here; and it is ordered, that the cause be remanded to the said chancery court, for further proceedings to be had therein.