#### *Robert Oswald et al. vs. Charles Givens et al. Executors. Charles Givens vs. Robert Oswald et al.*

Bequest of negroes to “be divided equally among the children generally of M. 6-., the children of *3.*0. generally, the children of W. 0. by name B. and B.., and the children of J. S., together with any child or children which M. (x. might have previous *to*sucli division, all share and share alike among such as shall be living at the time of such division, and not otherwise; and that the division shall take place as soon as all the debts are paid; and the executors to act as trustees to each child, *individually,*until they receive their portion at such time as each one shall come of age, or marriage of the females *”*— Held, to postpone the vesting of the legacy until the period of division arrived; and that all those who were *in esse*at that time, and only those, were entitled to take.

*Held,*also, that the legatees could not demand a division until one year from the testator’s death, and that a division actually made, within the year, and before the debts were all paid, was prematuro and illegal.

*Held, further,*that such of the legatees as were adult and consented to the division, or being minors, *werq femes covert,*having husbands who were of full age who consented, were bound by it.

When an executor is not chargeable with interest on funds retained in his hands.

*J3o*one but a party to the original bill can be be made a party to a cross-bill.

*Before*DeSaussure, Ch., *at*Beaufort, January, 1831.

Robert Oswald and others, who were entitled, under the will of George Stephens, deceased, to a distributive share of a legá-cy of a large number of slaves, filed their bill against Charles Givens and Wm. B. Oswald, surviving executors of the said will, to obtain an account of their administration of the estate of their testator, and to have partition made of the said slaves, or otherwise to compel payment or satisfaction of the respective shares of complainants in the said legacy. Charles Givens, one of the executors, filed a cross-bill against certain of the legatees who were said to have been paid, to compel contribution for the payment of debts, and to this bill the unpaid legatees, and the executrix of Richard Reynolds, deceased, one of the executors of the testator, Stephens, were made parties, with a view to a general adjustment of the rights and liabilities of all parties interested, and for the purpose of settling the estate, The matters of account were referred to the Commissioner, who, *327after a full. examination of the account, and taking much evidence in writing, with a view to facilitate the settling of the accounts, and to speed the cause, with the consent of parties, submitted a report, asking the instruction of the court on certain points involving the principles on which the account was to he framed..

The points submitted by the Commissioner were as follows:

1. Was the sale of the estate of Stephens in April, 1817, such a division of his estate as can he referred to, to fix the interests of the legatees, and ascertain the number of persons entitled under the will? Facts. The testator, by-his will, directs that no part of his estate shall be divided until his debts are paid; and, by a subsequent clause, that all his negroes shall be divided among the children of certain persons therein named; to use his own language, “among such as- shall be living at the •time of the division and not otherwise, and the division to take place as soon 'as.thé debts are paid.” , The difficulty with the Commissioner, in relation to the above question, alises, from a doubt, whether, as a general rule, anestate-in which minors are interested may he divided without the' interposition of - some court, and whether, if such be the rule, the above c-ase is not made an exception by the testator.

The Commissioner is satisfied that the fact of a division has been sufficiently proved, but submits whether that division was legal or not, and he submits also the- testimony thereon.

2. Whether, if the sale in 1817 was not a division, the executor can be allowed to charge the estate with sums paid to the husbands of some of the female infant legatees, on account of their wives’ shares ?

Facts. In 1817, and before the sale, "J. Scanlan, B. Dews and T. Skellon were the husbands of three of the infant legatees. • William Ricard married a fourth in the latter part of the same year. Scanlan and Ricard have died since 1817. Mrs. Dews is also dead, and Mr. Skellon has left the State,, and has not been heard of for more than seven years.

3. Whether the executor, Givens, should be charged with *328interest upo.n a balance,of $8,307 17, from the year 1817, said .to have been retained to pay whatever decree one Becfcham and wife,' who had commenced a suit in this court, against the executors of Stephens, might finally obtain ?

Much testimony was also offered, upon this .question, which the court is referred to.

4. Whether the share of James Oswald, who died before the testator, in the bouse and lot and household furniture in Beaufort, and in a tract of land' on Ladies’ Island, ought to be regarded as a lapsed devise, and subject to the payment of debts as a part of the testator’s estate undisposed of by his will?

6. Whether, if subject to testator’s -debts as descended r.eal estate, the* executors are- chargeable with the, valué in 1822, when Beckham’s éxecution for $10,153 was taken out against the executors of Stephens; and for the rents and profits, upon the testimony, before that time ? . -

6. Whether the executors are tobe liable *generally*for the amount' of the sale of the house and lot and household furniture in éeaufort, with interest according to the directions of the wjll, Or only, the executors, William B.’Oswald arid Charles-Givens. . - ' , ' ■ •

Facts.. Mrs. ■ Caroline Reynolds, executrix of Richard Reynolds, who was one 'of. the executors of Stephens, has been made a party to one of these suits. In her answer she denies the right of the .executors to call her to account for her testator’s administration of the estate of Stephens; because she has already been compelled to .answer to the same matters and things in a former suit instituted-'by the said executors,-- -in which a decree was had, against her for $1,269 — which sum. .she has paid according to the decree. . This is insisted on as a bar to any liability for the proceeds of the house and lot find furniture in Beaufort; and the Commissioner submits 'the question -to the consideration of the Court. . ' •

His Honor, the presiding Chancellor, pronounced the following decree:

*329DeSaussure, Ch. These are causes of very great ■ extent. The briefs form a volume ; and the Commissioner has also furnished a manuscript volume of twenty-two pages.

Certain bonds and mortgages were also given in evidence, on which much stress was laid in the argument of the case, and will be remarked upon hereafter.

There are also certain endorsements on these bonds, which Mr. Wm. Joyner, (now the Commissioner,) who acted as auc-: tioneer and agent of the parties, testifies, that he made on them, with the knowledge and consent of the, legatees. It. was admitted at the hearing, that the negroes of the estate of George Stephens, which Mr. Charles Givens bought in for his family, at the sales of that estate by the executors, were afterwards levied upon and sold under an execution to pay a debt of the estate to Beckham and wife. Mr. Verdier was examined in open Court as to the value of the Ladies’ Island tract, fie testified, that he - would not have given five cents an acre for the land as a plantation) -as there was very little planting land on it: not exceeding thirty acres. He offered ten dollars an acre ’ for that part which contained planting laird, and the landing,’ which he wanted- The' land has since been sold for about-fourteen hundred dollars. The cause was referred to the Commissioner, who, in his report of January, 1,831, states, that he had taken a great deal of testimony, but that, in consequence of the numerous law questions which had arisen, he found it impossible to make a final report, until the opinion of the Court' is pronounced on certain questions, which he submits for the determination of the Court. The first of these questions is, was the sale of the estate of Stephens, in April of the year 1817, such a division of the estate as can be referred, to, to fix the interests of the legatees and to ascertain the number of persons entitled under the will of George Stephens? The Commissioner attaches to the question- a statement of facts, which follow. The testator by his will directs, that no part of his estate shall be divided until his debts are paid ;' and, by a subsequent clause *330that.all his.negroes shall be divided among certain persons therein named. “Among, such as shall be living at the time of the, division, and not .otherwise: and the division to take place as soon as.the. debts are paid.” George Stephens, made and executed his last will and testament on 13th June, 1813, so as to pass real estate. He died on 7th February,-1817. His executors, Charles Givens,'Wm-B. Oswald and Richard Reynolds, qualified and acted bn the, estate. ,The testator devised his hduse and lot in Beaufort, arid the" furniture, to .and for the use and benefit of the -male heirs of Martha Givens ; and those of William 'Oswald and of Joseph Oswald. He devised his .plantation on .Ladies’ Island to be .equally divided among the male heirs of Martha Givens .and James Oswald, son of Joseph, and their heirs; each share do be allotted as each comes of age. The devisee, James Osw-áld, .died in the lifetime of the testator. The testator also devised his land on St. Helena Island to Benjamin Oswald and Richard Oswald (Sons of William); also to William Oswald, (son of .Joseph,) .to be equally divided, for their joint .use and benefit, under direction of the executors, until .William comes of age ; then to be equally divided among them and their heirs. Testator bequeathed all his slaves to be divided equally, among the male and female children generally of Martha Givens: the children, of Joseph Oswald, .together with any other-children,which Martha Givens might have pre--viously to such divisionshare and share alike among such as shall be living' a't the .time of the division, and not otherwise. The division shall take place as soon as the debts are paid. The executors to act as trustees’for each child, until they re- ¶ ceive their portions, as soon as each , one shall come of age," or day of marriage of the females. It appears that at the death of * testator, he left money in hand and,in possession of factors, sufficient tó pay all the .known debts; which were trifling. But there wa,s. a rumor of a large ‘ claim outstanding, of which the executors had no notice till the time of the’, sale of the slaves in .April, 1817. That, sale was made about, three months after the *331death of testator :. a number of the legatees being'then minors. At the time of the sale Mrs. Givens had six children by her husband, Charles Givens; five of them have died since.

We come now to the consideration of the question submitted by the Commissioner to the-judgment of the Court. Was the. sale of the slaves of the estate of Stephens, in April, 1817, such a division" of the estate as can be referred to, to fix the interests of the legatees and ascertain the number of persons entitled • under the will *1*; , '

I feel this to be a very difficult question. The circumstances are very complicated and anomalous. The executors and trustees do not appear to have followed exactly the directions of the will. There are two distinct examinations to be made to form' a correct judgment. Wé must examine the conduct of the executors,. and determine, the consequences which .flow from that conduct.. It is imputed'to Mr. Charles Givens, one of -the executors, that he insisted on making a premature, sale before, the debts were paid; and that all the irregularities and inconsistencies which have occurred, are to be ascribed tp him ; and’ that the acts done should be set aside, and the losses fixed on him. I have examined the evidence carefully, and I cannot find any ground to .impute blame to him. It is in evidence, that soon after the death .of George Stephens the testator, Charles Givens directed land to be prepared for planting, and upon which Mr. Reynolds, another executor, said there was no occasion, as a division of the negroes should be made. It is further in evidence, that Mr. Reynolds and Mr. Oswald, a third executor, applied to Mr. Robertson,- a counsellor at law, to know whether a division could be made, under the circumstances, and by a sale; and upon his opinion that a division could and might be made by a sale, they resolved to make the sale for a division. It is further. in evidence, that the said Oswald and Reynolds made application to Mr. William Joyner, then an huctioneer,. to make sale of the slaves. .Mr. "Joyner testified,. that the executor, Mr. W. B. Oswald, first spoke to him to sell the estate of Stephens and he wrote out the advertisement-for *332the sale at the direction and request of W. B. Oswald, and he thinks Mr. Reynolds. Mr. Givens concurred, for he stipulated with witness to make the sale for two hundred dollars. Mr. Robertson told witness he thought a division could be effected by the sale. Mr. Joyner also testifies, that he was auctioneer and agent of the parties, and he made out the bills of sale to the purchasers of the slaves, and the bonds and mortgages, which were required from all the heirs who purchased negroes. Endorsements were also made on the bonds and mortgages. The endorsements on the bonds were in these words — “ This bond is given as a security in case of any demands against the estate, or till a final settlement takes place.” The endorsements on the mortgages were in the same words. These bonds were given by all the legatees who purchased (except as hereafter stated) to the three executors, except where an executor was himself a.purchaser, and then he gave his bond and mortgage to the other two executors. From the transactions after the sale between the heirs and the executors, Mr. Joyner understood that they all deemed a division of the estate to be effected by the sale. All the heirs, he supposed, were taking their portions, each of them being entitled to one-seventeenth portion, and purchased accordingly. He heard no objections from any of the heirs to the sale at which they were present. All the heirs fell a little short of their portions to which they were entitled. The witness never heard of any objection to the division and sale, until some time afterwards, when Charles Givens had lost five of his children. He then heard it contended that there was no division. All the executors were present at the sale, and he heard no objection by them.

Being cross-examined, Mr. Joyner testified, that he heard none of the legatees say any thing of a division except Oswald. Does not know whether Oswald spoke of it as a division, or merely as a sale. He is only induced to believe that the legatees regarded it as a division at the time, from their giving bonds. He thinks the parties understood that it was a division, at the time,' and that it was not a sale with a view to a further *333division. Wm. B. Oswald said nothing to him after the commencement of the sale. Witness heard nothing of Beckham’s demand until after the sale.

*Mr. Joseph Jenkins*testified, that he was present at the sale of the estate of Stephens. He understood that the sale was to effect a division among the heirs. This was the understanding among them generally with whom he- conversed. The witness purchased at the sale, as nearly as he could, one-seventeenth, being the proportional part to which he was entitled. The other heirs did so also. • He never heard of any objection, either before or after the sale, to the division, or the manner in which it was effected. Sometime after Mr. Givens’ children died, he then heard that the division was objected to. All the legatees who were of age, were at the sale and, purchased. He did not hear the notice of Beckham’s demand or claim on the estate, at the time of the sale. The two executors, Oswald and Reynolds, had called on witness and his brother (another legatee) immediately after they had qualified,'to know from them, as heirs of Stephens, whether they had any objection to an immediate division; and Reynolds gave, asa reason-, for the sale, that many of the legatees were poor and needed their portions of the estate. There were then seventeen legatees, living ; at. present, only ten.

*Mr. David Turner*was examined and testified, that the sale of the slaves of Stephens’ estate took place in April, 1817. He applied to Mr. Oswald and Mr. Reynolds to get the sale as auctioneer. They expressed their wish to have the sale immediately, because Mr. Robertson had given it as his opinion that they could force Mr. Givens to the sale. The husbands of two of the legatees, Ricard and Scanlan, were present., Don’t remember if R. Oswald was present. ' They all expressed a wish to have the properly sold for a division, and gave as a reason that unless the business was pushed Mrs. Givens might have another heir. They stated that the sale was a division. The witness asked if the debts were paid ? They answered that the cotton and money in hand was sufficient to pay all the.*334debts.- He understood from the legatees .that each was to buy in, upon his claim, to the amount of his respective .share.,- Witness was present at the sale, and saw'all the' adult heirs present,.-as he thought. - They .all bought, but does? not know to what amount- He understood from Reynolds and Oswald that they had to force Givens to a sale. Heard no *objection*by *anf*'of the legatees' at the sale. He never heard any objection by any of the legatees -to the sale as a division. ■ From .what passed in conversation with the legatees and the executors before and after the sale, he understood that the sale was a division of the estate. He heard some of the legafeés say-that they had bought to an amount Wer- ‘ their' shares, and would have to pay up. Witness heard no objectiontto the sale being considered.a divi-. sion'until his return from the North, in NQvemi:,er afterwards. During his absence five of Givens’ children and .Charlotte Dews (another legatee), had died. Knows, nothing of the > subsequent settlement after the sale. , Heard the parties say on being asked *“*why á reléase had not' been executed,” that on the day of sale, or a day- or two before perhaps, a notice had been given of a demand against the estate on account of Beckham and wife. . _' , . ,

Against this evidence is the answer of the defendant, the executor Oswald, in which he states jhat -thp executor Givens, urged on the .sale, for a' division; and that he bimself was not willing to‘have a division when it was made. This was qualified by a subsequent explanation, that he had been willing at first, but altered his mind, afterwards, when he learned of the demand by Beckham and wife against the estate of Stephens, immediately before -the sale., To support this answexj there is no material .evidence.- The great, weight of evidence is on the other side-; and we.are obliged to conclude that Mr.'Oswald, after -so great a lapse of time, has forgotten what really* took place. < It appears, then, the ■ executor -Givens was not of the party -urgent for, _ the sale. That • the othpr executors, Oswalds and Reynolds) were urgent, and prevailed om'Givens to concur,. ■ after they had obtained advice from counsel. That the lega*335tees who were of legal age also concurred, and desired a sale 'for a division; which accordingly took place,' and the legatees purchased according to their respective interests. Even as late as October, 1818, Oswald writes to Mr. Givens to pay Ricard, who had married one of the heirs, the, sum of fourteen hundred dollars, arid to take ■ a mortgage to protect themselves. And the whole weight of testimony goes to prove that all these parties, by these and subsequent acts and declarations, looked upon this as a good division under the will of the testator, and that no complaint or dissatisfaction existed, - until the unfortunate and unexampled death of five of Mr. Givens’ children, within a very short time, made a most material difference on the subject ; for if the division was not considered good .which took place in their life-time, then the shares of these five legatees would, under the terms of the will, fall into the estate and augment the proportions of the other legatees. The apprehension of Mrs. Givens’ having another child before the division, made the parties anxious to hasten a division. The sudden death of five of her children now makes them desirous to set aside the division they had procured. It is objected, however, that whatever were the wishes and acts of Oswald and Reynolds,- and however the adult legatees may have all concurred, yet the division by way of sale or otb%wise, was contrary to the will of, the testator, because the debts were not- paid; and that consent could not make the division lawful; and that it 'should- have been a specific division and not a sale. For the executor Giv.ens it was contended, and certainly with, great force, that consent could and did bind all ’who w§re of age and concurred in ;the sale, and that included all who were of age. To this it is added there was. really no land of the estate to plant, for the legatees of the slaves were not all devisees of the land; That with regard'to the known and acknowledged debts, they were, small and most abundantly provided for, and paid with the cash and cotton left at the testator’s death. That with respect to Beckham’s demand, it was not a debt such as testator alluded to in his will, but an uncertain and contingent claim on the *336estate of Stephens, which was eventually established in Chancery, ■ first at a sum of $23,000, and afterwards reduced by the Court of Appeals, to *$*10,00Q. If the sale for division be not established as the parties own act ■ made it, then there would be great difficulty, in fixing the.time, and would unsettle and derange settlements, interminably;' The delivery of the slaves sold, the death of some of them and the births from the females, would make it most mischievous to set aside this division. How could they be collected-and sales made, or even a new -division ? It appears to be impracticable. The Court is asked to do this too, after a lapse, of many years, possession given, the property scattered and gone into-other hands. Great injustice and excessive inconvenience would arise from setting it aside. The .Court is called upon to lend its extraordinary powers to do this‘thing; but it will not be active tó produce so many inconveniences.

It is true, as was argued by the counsel for the complainants, Oswald and others, that regularly no'act of the trustee shall prejudice the *cestui que trust. In'*Fonblan.que’s treatise of Equity, this whole subject, with its rules, and exceptions, and modifications, is well stated. The rule is that the trustee shall not change the estate to the prejudice of the *cestui que trust.*But there is a ..distinction betwee jPthose cases in which the *ces-tui que trust*is *sui juris*or . not. If he is *sui juris’,*the trustee cannot change the nature of the estate without his consent, at least not so as to'bind and exclude the *cestui que trust*from remedy against the trustee personally. But if the *cestui que use*is not *sui juris,*it is frequently nécessary that the trustee should have such power; and the criterion is, whether the in-térests of the *cestui que trust*required the. conversion. So as to the trustee’s postponing or accelerating the sale of the trust estate, see the cases collected in *2*Fonb. 167, 168,- 458-’9, in note *(*a.)

I am, bound, therefore, to consider the . division made by-a sale by all the executors, with concurrence of ,all the legatees who were of age, and the parents representing others and buy*337ing slaves for them, as sufficient, under such circumstances, to establish a division binding on the parties, more especially as the Court will protect executors for doing what the Court would have authorized.

And it is so ordered and decreed : of course the share of the slaves, or their prices, of James Oswald, who died in the life of testator, went over to the survivors.

Should any of the minor legatees, for whom no purchases were made by parents, guardians, or husbands of females, remain unpaid, (of which the Commissioner will inquire and report,) all three of the executors, and their estates, will be liable to satisfy their just and proportionate share of the sales of the slaves.

The second question submitted by the Commissioner in his report, is answered by the decision on the first question.

The third question submitted, is one of interest on a balance of f8,308 17, which the executor Givens retained to pay whatever decree Beckham and wife, who had commenced a suit in Equity against the executors of George Stephens, might finally obtain. There is a good deal of testimony, but not sufficient perhaps to enable me to make an entirely satisfactory decree. But as the claim was a doubtful one, and the executors could have had the direction of the 5ourt to have invested the money till the decision of the claim, which was likely to be long depending, I am of opinion that Mr. Givens, the executor, shall be chargeable with the interest on the money actually in his hands and unemployed. I confess that I do this hesitatingly and doubtfully.

The fourth question submitted by the Commissioner is, whether the share of James Oswald, who died before the testator, in the house-and lot and household furniture in Beaufort, and in a tract of land on Ladies’ Island, ought to be regarded as a lapsed devise, and subject to the payment of debts as a part of testator’s estate undisposed of by will. The terms of the devises have been stated. James Oswald, one of the joint de-visees, died in the life-time of the testator. The remaining *338devisees survived the testator. The share to which James Oswald would have been entitled *if he*had survived the testator, either lapsed, or survived to the codevisees. This question has been argued, and I will say briefly, without going over the decided cases, that the share of the deceased devisee, James Oswald, in these real estates, lapsed on his death before the testator. The rule is different as to legacies of personal estate, for there if a bequest is made to two or more, the legacy is not extinguished by the death of one, but will vest in the survivor. As the other estates are particularly disposed of, the value or amount of the real estate so devised to James Oswald and lapsed, is applicable under thfe circumstances of this case, -to the payment of debts, if the undisposed residuary estate be inadequate thereto.

The fifth question submitted by the Commissioner is, whether if the real estates devised to James Oswald, and lapsed by his death, are subject to the debts as descended real estate, the executors are not chargeable with their value in *1822, when*Beck-ham’s execution was taken out against the executors of Stephens, and for the rents and profits before that time. It appears to me that as *the negroes were*disposed of, and the renting lands a difficult and uncertain thing in this country, (and many persons consider the injury to land by hiring greater than the benefit of the small rents which are given,) and as the rights of the parties were in some uncertainty, and their proper course of conduct doubtful, it would be dealing hardly with the executors, to make them liable, as proposed by this question. I . shall not, therefore, decree' them to be liable.

The sixth question is, whether the executors are to be liable, generally, for the amount of the sale of the house and lot, and furniture, with interest according to the directions of the will, or only the executors Oswald and Givens ? The Commissioner states that Mrs. Reynolds, the widow and executrix of the deceased executor Reynolds, sets up in bar to the liability of her •late husband’s estate, that she has been sued and compelled to answer to the same matters and things, by said executors, who *339obtained a decree against her for $1,269, and the money has been paid. To this it was replied, that the suit and decree, relied upon, had no relation to the present demand. 'The questions, interests and parties are different; and so it appears to me as far as the lights furnished me will enable me to judge.

It is, therefore, ordered and decreed, that the case be sent back to the Commissioner, with instructions to report conforma-bly to the points'decided by this decree, and on all the other matters in the causes before him.

I do not know whether it was expected of the Court to decide, at this time, on the question of contribution, in the case of Givens vs. Oswald and others, as that point was not fully argued. But, perhaps, it will be as well to decide oh that question, that the whole case may be decided upon and carried up.

In common cases the rule is, that where executors voluntarily pay legacies prematurely to the prejudice of creditors, these creditors may pursue and recover from the legatees to whom the payments have been made; but the executors who made the mispayments cannot. The circumstances of this case, however, are not such as will justify the application of that rule. There are no creditors. The executor Givens, at the urgency of the two other executors, whose families were legatees, and at the desire of the adult legatees, consented to make a division through the forms of a sale of the slaves of the estate, at which they purchased according to their respective interests, reserving funds more than enough to pay the known debts. One uncertain demand remained, the result of which could not be known until a long and sharp litigation — the result of which they were unwilling to wait for. It would have been madness •in the executors to have made a division without looking ulte-riorly to that demand. All the transactions and proof shew that those who shared in the division, looked to and understood there was to be contribution if necessary.

The division was made in 1817, and in 1822 a large demand was established; first of $23,000, and afterwards cut down, by further litigation, to $10,000. Beckham and his wife urged *340their execution under the decree, and levied on and sold the slaves of one of the executors, Mr. Givens. It would be a strange perversion of justice to say that he alone' should bear this burthen. His co-executors are most unquestionably bound to contribute ; and I think the legatees who were paid also, as the acts were done at their instance, and upon an understanding to contribute: and it is so ordered and decreed *that this*point may be carried up to a higher tribunal.

The legatees appealed from so much of the decree as declared the sale in April, 1817, a division, ascertaining and vesting the rights of the legatees, .and that the payments to the husbands of the infant legatees were valid payments, binding on the legatees, and chargeable to the estate, on the following grounds:

1. That admitting the sale in April, 1817, to have been a division, yet as the said sale was made within two months after the death of the testator, and after the executors had notice of the large claim of Beckham and wife, it was wholly ineffectual to ascertain and vest the rights of the legatees: it *being*respectfully submitted, that under the will no division could be made having that effect within a year and a day after the death of the testator, especially when the executors were apprised of the existence'of a very large debt which remained unpaid; and that it could not be made even after that period, 'until the said debt was fully paid.

*2.*That admitting the authority of the executors to make such a division with the assent of the legatees, yet there is no evidence whatever of such assent, each and every of the legatees having .denied that they ever regarded the sale as a division, and there being no evidence that it was so regarded by any but the executors.

3. That several of the legatees being minors, were incapable of assenting ; nor could any premature division affecting their rights be lawfully made, save by the authority and under the sanction of the Court of Equity.

*3414. That if the sale in 1817 was intended for a division, yet in fact it was not a division, inasmuch as the purchases by the legatees were not regulated by the amount of their respective interests, nor were any purchases whatever made for most of the infant legatees; and the division of the fund being arrested by the intervention of the claim of Beckham and wife, no adjustment was or ever has been made of the balances due on the purchases made by the adult. legatees, but bonds and mortgages were taken for the amount of their respective purchases ; and although the debt to Beckham and wife was paid off in 1822, yet no settlement has ever been made, and to this day the minor legatees are unpaid. .

5. That all payments made by the executors to legatees, or the husbands of legatees., who died before the rights of the several legatees vested, were payments in their own wrong, and are not chargeable to the estate.

6. That payments to thd husbands of legatees, who died before the interests of their wives vested, were unauthorized, and are not binding upon the wives surviving them.

Mrs. Reynolds, the executrix of Richard Reynolds, also appealed on the grounds:

1. That she.is‘not liable to the complainants, having been called to account and a decree had against her by her husband’s co-executors.

2. That the loss of the debt- arising from the sale of the house and lot, ought to be charged exclusively on the other executors.

3. That she ought not to be charged with any interest.

Charles Givens, the defendant in the original and complainant in the cross-bill; also appealed from so much of the decree as ordered him to pay interest. on the balance in his hands from 1817 to 1822, on the ground— ■■

That an executor has no right to invest money for the benefit of creditors: that if Givens had invested the funds while *342Beckham’s bill was pending, the same would have been done at his own risk: that the Court would not have authorized the investment without the consent of Beckham, and consequently the executor is in no default by keeping the money in his own ha'nds, and as he did not use it he is not liable for interest on it.

*Treville, Bailey,*for the legatees.

*Grimke,*for Mrs. Reynolds.

*Smith,*fpr Charles Givens.

The opinion of the Court was delivered by'

O’Neall, J.

These cases are involved in more difficulty from the mass of testimony brought before the Court than any other circumstance. When divested of all superfluous matter, and properly understood, they present a few plain questions, about which it is perhaps more difficult to reason satisfactorily than it is to decide upon them. The questions may be stated in the following order:

1. When did the legacies in the slaves vest in the legatees?

2. Are any of the ■ legatees bound by the alleged division at the sale of the personal estate, and, if any, who are so bound ?

3. Is the executor Givens bound to'pay interest on the sum which he retained to pay the debt of Beckham and wife ?

4. Is the former recovery of the executors against Mrs. Reynolds, as executrix of a deceased co-exécutor, a bar to the account now.claimed against her by the complainant Givens?

1. The question, when did the legacies vest, depends upon a construction' of the testator’s will. The clause upon which it' must be decided is in the following words: — “It is also my will-and desire that the whole of my negroes be divided equally among the male and female children generally of Martha Givens, the children of Joseph Oswald generally, the children of William Oswald of St. Helena, by name Benjamin and Robert Oswald, together with any child or children which Martha Givens, wife of Charles Givens, might have previous to such division, all share and share alike among such as shall be liv*343ing at the time of such division, and not otherwise. And that the division shall take place as soon as the debts are paid, and the executors to act as trustees to each child, individually, until they receive their portion at such time as each one shall’come of age, or marriage of the females.” After the attestation clause is the *following:*— “ Just naming that the children of James Oswald, which I previously unintentionally omitted, should share equally with the other legatees in the distribution of the whole of my negroes.” The general rule in the construction of a will is, that the intention, if not contrary to law, must prevail. That intention, if there is any doubt or uncertainty in a particular clause, is to be collected from the whole will and not from detached parts. But if there is no doubt on the meaning of the testator as to a devise, from the words which he has used, there is no room for either construction or reasoning, to ascertain his intent. It is true the leaning of the Court is in favor of the vesting of legacies; but that leaning cannot be allowed to do away the express words of the testator, unless they should postpone the vesting Jo a period which the law will not permit.

Where a legacy is left to the children of another person, as a class, and no time is fixed when distribution is to be made, the legacy vests at the testator’s death, and none can take under it but such as are then *in esse ;*but where a future time is fixed for distribution, then all who are *in esse*at the period of distribution will be entitled to take. These positions were fully considered in the case of *Myers*vs. Myers, 2 McC. Ch. 214, and that decision constitutes the rule by which all succeeding cases of a similar character must be decided. This rule is, however, said by all the books to be an artificial one, created by the Courts in order to prevent the indefinite postponement of the vesting of a legacy. It is one of convenience.merely, and never was intended to defeat the expressed intention of the testator ; it is a rule of construction, applicable to cases where we might as fairly conclude that the testator intended a present, as a future interest, to pass by his will. It is supposed that the ■ testator intended that the children *in esse*at his death, should *344take a vested transmissible interest, and that that is the effect of his will. We might possibly come to this conclusion, if we were at liberty to reject the words “ among such as shall be living at the time of such division, and not otherwise.” But this we cannot do. They are the *indicia*of the testator’s in-, tention and must have effect. There is nothing in the clause which will apply them exclusively to the children of Mrs. Givens to be born after the testator’s death. They apply to the whole of her children, the children of Joseph and William Oswald mentioned before in the same clause; and they also apply to the children of James Oswald, who were accidentally omitted, but are given the benefit of the provision of this clause by the memorandum at the foot of the will. The effect of that is to insert them in the proper part of that clause; so that it would read “among the male and female children generally of Martha Givens, the children of Joseph Oswald generally, the children of William Oswald of St. Helena, by name Benjamin and Robert, *and the children of James Oswald*generally.”

It cannot well admit of a doubt, that if the words, “ among such as shall be living at the time of such division, and not otherwise,” have any meaning, they restrict the division of the slaves, among the persons who might be alive, at the time when, according to the will and the operation of law, it ought to have been made. • It may be, that under the clause of the will devising the real estate, the devisees take a vested interest; and, upon looking carefully into that part of the will, that does appear to be the true construction. Yet that cannot alter or destroy the sense of plain and unambiguous words employed in the bequest of the personal estate. The testator had an unquestionable right to dispose of the whole or any part of his estate, to. any persons whom he thought proper to make'the objects of his bounty. Conjecturing as to his intention, I should conclude that it was likely he, intended that the real and personal estate should be divided upon th.e same rule ; but then it would be just as fair to permit the restriction annexed to the bequest of the personalty, to control and fix the construction of *345the devise of the land, as it would be to permit the clause in relation to the land to give construction to the bequest of the personalty. ’

In cases of doubt as to the testator’s meaning, many means of ascertaining whether a vested or future interest was intended to pass, have been resorted to. If the legatee, between the testator’s death and the time at which he was to have the enjoyment of his legacy, was entitled to the interest, it has been held that this would make it a vested legacy. But that is by no means an infallible criterion, for there are cases where the interest on a legacy purely contingent, has been allowed to the legatee. In this case the testator constitutes his executors trustees for each of the children who were .the objects of his .bounty, and this has been supposed to be equivalent to a devise of the rents and profits to each between his death and the period of the division. This might be so, and not affect the question of construction. But it may admit of a doubt whether he intended that they should act as trustees for each child before a.division was made. Before that time, they were trustees for the whole; and although legally they were, as executors, trustees for all and each, yet the testator seems to have intended, after the division, to create something like a separate trust in favor of each legatee.

The rule of construction, as to whether a legacy shall be considered vested or contingent, seems to be well settled, that where time is .of the substance of the gift, and not a mere direction as to the time of payment, the legacy is contingent; otherwise that it is vested. 2 Salk. 415. This rule applies in all cases where there is a doubt, from general phrases used. But if, in a bequest to two, to be paid at twenty-one years of age, the testator should add, if either die before that time, the one who should survive and attain that age, should have the whole, it could not be pretended that the one who died had a vested and transmissible interest. The testator’s qualification of the bequest, prevents any rule of construction from defeating his intent. Rules of construction are nothing more than the means *346by which we are enabled to solve a doubtful question of intention. The words of the testator, evincing his intention, is the first rule, to which all others must yield. Looking to the words used by the testator, it is plain that he intended his slaves to be divided among such of the children of Martha Givens, Joseph Oswald, William Oswald and James Oswald, as *might he*living at the time when, according to the will and the operation of law, a division ought to be made, and that intention, whatever hardship it may work, must have effect.

*2.*It now becomes important to inquire, when could the executors legally make the division ? and what is the effect of the sale, and the acts of the parties at or after that time *1 ■*

The direction of the will is, “ that this division shall take place as soon as the debts are paid.” The testator owed at his death a few known debts, to the'payment of which the cash on hand and other available funds were amply sufficient: these were paid before the sale. But on the day of sale, the executors received notice of a large demand in favor of Beckham and wife, which, after a long litigation, terminated in a decree in their favor for upwards of $10,000.

The words of the will plainly point out the payment of his debts as a condition precedent to a division. But if they receive a literal meaning, the executors had the power, by postponing payment and resorting to the shifts and devices of legal delay, to prevent the vesting of the legacies to any period they might think proper. On the other hand, if the words are restricted to such debts as the executors pleased to acknowledge and to pay, they had it in their power to hasten the period of division and vesting, and thus favor a division to the injury of the legatees. Such uncertainty, arising from an arbitrary discretion, is, if possible, to be avoided. If all the testator’s debts could have been immediately ascertained and paid, and this had been actually done, a division made as soon as the debts were paid, might have been sustained: but when one very large debt was demanded, and remained unpaid, it would be sporting with the testator’s directions to say that a division could be made, *347because his admitted debts were paid. He had the right to require, if he chose so to do, that his estate should be unincumbered before it went into the possession of his legatees. And such a direction was not, perhaps, without value or wisdom. A division before the payment of his debts might have created a capital for his legatees, of which subsequent events might have deprived them, and in thus defeating a reasonable expectation, might have been the means of producing misery and want, instead of happiness and *plenty. It was*the duty of the executors, within the' time allowed by law, one year from the testator’s death, to have ascertained the amount of his debts. P. L. 494. And, if possible, it was their duty to have paid them within the same time. At its expiration, the legatees had the right to demand that the division should take place. If it had been sooner demanded, no Court would have ordered a division on being informed that there were outstanding debts. At the end of that time, a sufficient sum for the payment of the debts, if any had remained unpaid, might have been left in the executors’ hands, and the balance distributed. In all events, that was as soon as *the*legatees had a legal right to demand partition; and if made before, it could only be sustained on a full and clear shewing of the payment of all debts. In this case we are, therefore, driven, necessarily, to say, that a division, before the expiration of one year from the testator’s death, was premature and illegal. Such of the legatees as were then *in*esse, were alone entitled to a share under this part of his will. But notwithstanding this legal conclusion, I am satisfied that all of the adult legatees are bound by the division, if any was made. For it cannot be denied, that they could, if they chose, make a division which would bind them, although it might be inoperative as to the minors. For, if an infant and adult contract together, the adult is bound, although the infant may not be. Some of the infants were *femes*covert, and although their interest was a mere possibility, yet as the husbands were *sui juris*and capable of receiving their shares, any act of theirs which would go to confirm the sale and division may have the same effect against their wives. *348Their interest was a mere *chose in action,*which this act of the husband reduced into possession ; and however hardly it may operate upon the females, yet it is one of the necessary incidents of the relation of husband and wife. The wife’s separate legal existence is merged in the coverture, and if she could have been bound by a division made by her consent, when of full age, it follows that she is legally bound by one made by the consent of her husband, notwithstanding her minority. The husband and wife could have demanded partition, and the consent to division is, as to their rights, the same thing as if they had demanded and obtained partition by operation of law.

Having stated these preliminary principles, it is necessary to see what are the facts before any conclusion can be arrived at. The sale, it appears on all hands, was forced on by the other parties against the wishes of Mr. Givens. There appears to be no doubt that the sale was intended to ascertain, in money, the amount to be divided, and that each of the legatees who were capable of so doing might buy, if they chose, the amount of his or her share. At the sale, there were seventeen persons alive who were supposed to be entitled to shares, viz: six children of Mrs. Givens by her husband the defendant, all minors; four children of Joseph Oswald, all infants but two of them, Charlotte Dews and Martha Scanlan, who. were then married; three children of James Oswald, all infants — one of them, Susan Skellon, was married ; the children of Wm. Oswald of St. Helena, William B. and Robert Oswald; and Joseph and John Jenkins, children of Martha Givens by a former marriage, all of whom were of full age. Since the sale and before the period of division, five of the children of Mrs. Givens, and Charlotte Dews, died.

The proof clearly establishes that Wm. B. Oswald, Robert Oswald, Joseph Jenkins, John Jenkins, and the husbands of the females, Dews, Scanlan and Skellon, considered the sale and their purchases in effect a division of the estate into seventeen shares. On the bonds given for their purchases, is endorsed a *memorandum*— “ This bond is given as security, in case of any *349demands or suit coming against the estate, or till a final settlement takes place.” This had the effect to make them bonds to refund ; and shews that the parties intended, when the bonds were equal to, or less than one-seventeenth, that each should retain what he had, unless some debt should be established against the estate. Upon the bonds of William B. and Robert Oswald, who each purchased more than one-seventeenth, is endorsed a receipt of the same date with the bonds, and signed by the executors. The receipt on the bond of William B. Oswald is in the following words *:*— “ Received, 16th April, 1817, from William B. Oswald, Esq., the sum of nineteen hundred and sixty-nine dollars seventy cents, being his proportion of the ne-groes belonging to the estate of George Stephens, sold this day.” That on the bond of Robert is only varied by the use of his name instead of that of William B. This is not only evidence of a division, but is the division itself. An actual division by a sale, and the appropriation of the proceeds to each one having been established, it is binding upon all such as were legally capable of assenting to it. The legatees, William B. Oswald, Robert Oswald, Joseph Jenkins, John Jenkins, Mrs. Skellon and Mrs. Scanlan, are only entitled to one-seventeenth, and must each contribute from their said share one-seventeenth of the debt recovered by Beckham and wife, to the defendant Charles Givens. Any payments or purchases made to or by the husbands of each of these *femes covert,*were *pro tanto*legal satisfaction of her share, and must be deducted from it. The same thing would be the case with Mrs.- Dews, but for her unfortunate death before the period of division. Her death, as against the minor legatees, forfeited her share. She will be entitled to one-sixth of the residuum which may be left of -the estate, after satisfying to the surviving child of Mrs. Givens,'Wm'. Oswald, Sarah the wife of Slowman, Sarah the wife of Ricard, and Mary the wife of Freeman, each one-eleventh of the sales of the slaves, deducting their shares of the debt due to Beckham and wife. These persons being minors, qnd not bound by the division, are *350entitled to shares, according to the number of persons who were alive at the time when the executors were legally liable to make a division. The consequence of this mode of division, will be to leave a surplus of the estate divisible into six equal parts, between and among Mrs. Dews and the five deceased children of Mrs. Givens. It is the consequence of holding the adults to be bound by the division made by their consent, and it gives to the minors the benefit of an advantageous contract. I rejoice to be enabled legally to produce this result,-for it enables us to visit, with just punishment, the avarice of adults who would seek advantage from such an awful dispensation of Divine Providence to parents, as the bereavement of five children in a few months. The payment to or purchase by Mr. Dews, if it does not exceed his wife’s share of this residuum, was legal and proper, and must be allowed to the executors. If it exceeds it, the excess must be paid by them to the estate. The same remarks apply to the payment to Mr. Ricard on account of his wife’s share, and the same rule will govern it.

3. Generally, executors or administrators are liable for interest on balances in their hands. It is their duty to make interest upon the funds when they can do so. But if a fund in the hands of an executor be claimed by two or more persons, and he holds it in his hands without using it, or making interest upon.it, until they have legally settled their rights, he is a mere stakeholder and not liable to interest. *Bulows*& *Pope*vs. O'Neall, 4 Des. 374. So if a debt is claimed against an estate, the justice of which is doubted, and the executor litigates the question in good faith, but retains a sufficient sum in his hands for its payment, which he does not use and from which he does not make interest, he will not be chargeable With interest on it. *Pace*vs. *Burton,*1 Mc. Ch. 247. If, however, it should be that the sum which he alleges he retained, was his own debt for property bought at the sale, he would, in that case, be liable for interest. For he has the use of the property purchased, and its use is equivalent to the interest to be paid on the purchase •mo*351ney. As the facts on this part of the case are not well ascertained, the Commissioner must ascertain them, and allow or disallow the interest according to the rule which I have stated.

4. A former recovery, between the same parties and- in the same right, concludes all questions -'which ought then to have been made. We have-no right to look into the decree of the Court of Equity to ascertain the items of the account. If the liability to account existed before the filing of the bill, the decree concludes the parties from setting it up. In this case, Mrs. Reynolds’ liability to account for the matters for which she is now required to answer, did not exist at the time of the filing of the formér bill. Her liability to account to the other executors, will depend upon the fact whether, in the eventual decree in the-first of these cases, they should be charged with any act of mal-administration in which her testator concurred. If they should, then their right to a contribution from her will arise. They could not have demanded any such account in their former bill, for until they were required to apcount for it, they had no cause of complaint against her testator. It is even now questionable whether the claim to contribution is not prematurely made. It would, perhaps, have been more regular to have postponed this bill until the. final decree, was rendered : but as the object of the parties is to have this litigation terminated, and as the question was not made, her plea was properly overruled by the Chancellor, and she must account for her testator’s equal share of any act of mal-administration which may be established against the surviving executors, and in which he concurred.

Another objection raised in the argument to the liability of Mrs. Reynolds, is, that she is not a party to the original bill, and that she cannot be, therefore, made a party to the cross-bill. “A cross-bill is,” (as Mr. Mitford, in his treatise on Equity Pleadings, 64, says,) “ a bill brought by a defendant against a plaintiff or other parties in a former bill touching the matter in question in the bill.”

It is, therefore, clear that none but a party to the original bill *352can be made a party to a cross-bill. If the objection had been raised by way of demurrer, I should have been disposed to think it must have succeeded. But it cannot arise under a plea of a former recovery.

It is ordered and decreed, that the decree of Chancellor De-Saussure be modified according to the principles contained in this opinion, and that the cause be remanded to the Circuit Court, with instructions to the Commissioner to make up the accounts between the parties according to the rules herein-before laid down.

JohNsoN, J., concurred.

*Decree modified.*