#### JOSEPH McDOWELL CARSON, ADMR., *de bonis non, against*THOMAS S. DUFFY ADM'R.

"Where a husband devised and bequeathed his property, real and personal, to his wife, with certain powers and trusts to be performed by her for the use of their children, and she, being executrix, assented to the legacy, an administrator *de bonis non*of the husband, has no claim to have the estate. The children in the above case should have been made parties, and the administrator *de bonis non*of their father, could not represent then- interest.

Cause removed from the Court of Equity of Eutherford County-

Otis P Mills, the late husband of the defendant’s intestate, bequeathed to his wife, Eachel, personal property to sell, or use the same in any way she might choose, for her own use, and for the use, benefit and education, of their children ; and upon the marriage or coming of age of any of the children, the whole remainder of the estate to be divided equally between her and the four children, the part of each to be ascertained and paid over as such child should marry or come of age. He also, by his will, gave her his real estate for her own use, and for the use and education of their children, with the power of selling any of the property for the previously declared uses and trusts; and with the power of purchasing a farm to be held upon the same trusts; and the said Eachel *508was appointed sole executrix of tbe will. Mrs. Mills took tbe estate into ber possession, and *used a/nd enjoyed*tbe same from the death of her husband in 1844, till ber death in 1856 (twelve years.) On ber death the plaintiff was appointed administrator *de bonis non,*with the will annexed of Mr. Mills, and the defendant administrator of Mrs. Mills. The bill is filed by the plaintiff to recover of the defendant the property which Mrs. Mills had of her husband’s estate, that the same may be held by him for the use and benefit of the children, according to the provisions of the will. Huffy, the administrator of Mrs. Mills, is the only party defendant.

The defendant answers that Mrs. Mills assented, and had the property for many years, as legatee; that she took up the debts of her husband and educated their children, and consequently became much indebted; and that such was her condition when she died; that much of this indebtedness has arisen from an effort to promote the interests of their children ; and he insists that; for the purpose of paying her own debts out of her part, and for the purpose of indemnifying her for advances made to her husband’s estate, it ought to be left in his hands, and that he is advised it is in law vested in him, as the wife’s representative, so that the administrator *de bonis non,*of the husband, has no interest in the same.

The case was set down for hearing upon the bill, answer and exhibit, and sent to this Court by consent.

No counsel appeared for the plaintiff.

Gaither, for defendant.

PeabsoN, J.

The pleadings are loosely drawn, owing, we presume, in some measure, to the fact that it is a friendly suit; the main object being to obtain the opinion of the Court in regard to the conflicting rights of the creditors of Mrs. Mills and of the children who claim under the will of their father. The creditors of Mrs. Mills are properly represented by the defendant, Huffy, who is her administrator ; but in any view which can be taken of the case, the four children of the tes*509tator are necessary parties; tbey have a direct interest in the construction of the will, and the other questions presented, and should be parties, so as to enable them to take the benefit of, or be bound by our decree.

The bill does not charge expressly that Mrs. Mills assented to the legacy given to herself and the children; but, from the facts stated, an assent will necessarily be implied; consequently, the legal title was not vested in her, as the executrix of her husband, at the time of her death, but had passed to her and the children, subject to certain powers and trusts created by the will, for the benefit of herself and the children; so that, when the plaintiff was appointed “ administrator with the will annexed, *de bonis non*admiinisi/ratis,” there was nothing which had not been administered; and of course he did not acquire any title or interest of any sort in the slaves which are the subject of controversy.

In this view of the case the bill must be dismissed; because the plaintiff is a mere volunteer, having no concern in the questions which he sees proper to present to the Court.

But suppose Mrs. Milis had not assented to the legacy to herself and the children; then the legal title would be in the plaintiff, as administrator *de bonis*non; and if the defendant or any body else, interfered with his rights, and prevented his talcing possession of the property, he has his remedy at law, and there is no *eqmtahle ingredient*involved in the question. Nor has he, as administrator *de bonis non,*any sort of interest as to the manner in which firings may be done between the creditors of Mrs. Mills and the children. According to his own showing, he has not the possession of the property, and cannot, therefore, maintain a bill of interplea-der, or a bill in the nature of a bill of interpleader; and supposing he could do so, the children of the testator are the parties principally concerned, and should be parties to any proceeding in which an opinion of this Court is declared, affecting their rights.

Per Curiak. Bill dismissed.