*Columbia*

Heard by Chancellor Desaussure.

*sita zx.*

#### Clifton, Administrator of Jane Ann Campbell, *vs.*Executors of Haig, Executor of Wise, and Charles Williamson, Sheriff of Richland.

A subject of Great Britain, though born before the declaration of Independence, is an alien, and cannot hold lands in this state. He may take lands, but he iakca for the benefit of the sovereign. A testator devised the residue of his real and personal estate to his daughter, and the issue of her body, lawfully begotten, for ever. But in case of the death or failure of issue of his said daughter, then, and in either of these usases, he devised and bequeathed the same to his nephews, S. W. and T. B, tobe equally divided between them. The limitations overate not too remote. A devisee for life, and a pecuniary legatee, have a right to an account, to ascertain when her rights accrued, and to recover what is due her.

Executors keeping an'«state in their hands for many years, under ¡pretence of debts, osunot allege against the demand for an account that it is a stal e claim 5 nor that the complainant comes too soon.

A legatee, whose husband dies before the payment of her legacy, is entitled, and not her husband’s representatives; especially as they were separated by agreement, and he renounced all his interest* in her ; property. And her second husband also separating himself from her,, and permitting another person after her death to administer on her «state, such administrator is entitled to sue for, and recover what is due to her.

Executors residing abroad, or who never aeted on the estate, are set necessarily made parties to the suit.

The court will order proper parties at any stage of the cause.

Leave given to amend the prayer of the bill, after hearing.

A sheriff having in his bands a balance, after payment of the debt, for which he sold land under execution, ordered to pay it over to the commissioner, to abide the decree of the court.

Securities to the sheriff’s bond were made parties, after decree itv the prmeipal cause. They demurred. Demurrer sustained.

JUNE, 1812.

The cause came to a hearing, and the judge delivered the following decree:

This is a bill filed by the administrator of Mrs. Jane Ann Campbell, deceased, who was the daughter of the late Major Samuel Wise.

The suit is brought against Mr. Joel Adams, one of the executors of the late Mr. J. J. Haig, who had been one of the executors of Major Wise.

*331The bill is for a discovery and an account of major Wise’s estate, by the executor of Mr. Haig, v'dio had been executor for Major Wise. And the bill required that Charles Williamson, late sheriff of Richland district, who had sold a tract of land, under execution, to paya debt due by Maj, W’s estate, should account for the suri plus remaining in Ms hands, after payment of that debt.

Maj. Wise by his last will and testament, bequeathed some pecuniary legacies: and among other things, directed his executors to raise the sftm of 10,000i, of the then, currency, by certain sales, and to place the same at interest in the State loan office: and to apply the same to pay certain debts due in England. Rut in case that should bo impracticable, or more than would be sufficient, he bequeaths the said sum or the surplus, to his daughter Jane Ann Wise. By a subsequent clause, he devised and bequeathed to his daughter, Jane Ann Wise, all th© rest and residue of-his estate, real and personal, to her and the issue begotten of her-body, forever j but in case of death or failure of issue in his said daughter, Jane Ann Wise, then and in either of these cases, he devised and bequeathed the same to his nephew, Samuel Wise, (of Ahby Holm, England,) and to Thomas Boak, his wife’s brother, to be equally divided between them.

The answer of Mr. Joel Adams, executor of Mr. Haig, stated that there were other parties in interest, who should have been made parties to the suit; — that Major Wise left several executors, of whom the late Gen. Harrington was one, and Mr. Thomas Boak another, both of whom qualified as executors of the will of Major Wise, and who should have been made defendants-. And that the late Mr. Haig left several executors, some of whom had qualified as well as himself, to-wit, the late Capt. John Blake, and Col. John Alexander Cuthbert, who had qualified as executors, and two others who have not qualified; — and that Col. Cuthbert who is living, should have been made party to the suit. Also that Capt. Blake’s family were principal devisees and legatees of Mr. Haig 5 and should have been made parties.

*332, Tlri answer also insisted, that Jane Ann C&mp-bell, formerly Miss Wise, had no such rights under the aa woui¿ CKtitle her representatives to make any" claim, <or institute any suit, as the devises and bequest»' to her were contingent, and on her death, failing issue, (which had taken place,) the property was devised over to other persons, who alone had the right to claim and to sue, after payment of the debts. But tiiat in fact it was believed the 'debts wore not paid, and the creditors should have beeh made patties. Also, that if she had had any transmissible rights under the will, she had married a man named Ball, before she had married Campbell ; and that if he were dead his representatives were entitled to-' make the claims in question, and not her administrator : and that at all events, Campbell, who survived her, should be the suitor in this case. The staleness of the claim was also insisted upon, as a reason for the court n*t ordcringthe executors to account.

The defendant filed his account as to the estate of Mr. Haig.

The answer of Mr. Williamson, late sheriff of Bichland district, admitted that he had made sale of a tract of land, formerly belonging to the estate of Maj. Wise, to satisfy an execution for a debt due by liis estate — -and that a balance remained in his hands; — but that complainant was not entitled to an account and payment thereof, as the late Miss Wise had no transmissible rights under her father’s will entitling her representatives to institute such a suit. Also, that all proper parties were not before the court. — .that besides other parties Zeph. Kingsley had qualified as administrator-with the will annexed, in July 1781, before the British board of police, and he or his representatives should be made parties, as they may have possessed themselves of part of Maj. Wise’s estate. That the lands sold hy the defendant Williamson, under execution, were not the lands directed to be sold by Maj. Wise’s wMl, and themohey bequeathed to his daughter under certain circumstances. That he as sheriff was bound to apply the money to the payment of creditors, who might he injured by the payment over to the admin*333istrators of Campbell; or at any rate, to the executors of Wise’s estate or their representatives, who were liable to Wise’s creditors.

Before 1 go into the arguments it will be proper to notice the leading facts proved or admitted in the case.

it appeal's that Maj. Wise was killed in the autumn 1779, and that Mr. J. J. Haig caused his will to be proved and qualified thereon as an executor, in December 1779, and possessed himself of the real and personal estate. — .• That sometime in 1783, when the British military power occupied the lower part of the state, a Mr. Kingsley administered with the will annexed, on Maj. Wise’s estate, in the hoard of police, a temporary tribunal erected by the British commanders. He went away with the British troops in 1782, and has never returned. What possession of the estate and effects of Maj. Wise he obtained, and how he disposed of them, does not appear by any evidence. After the conclusion of the war, General Harrington, one of the executors, qualified on the will of Maj. Wise, and acted upon the estate. lie after-wards removed to North Carolina, and is since dead, and his family and estate are in North Carolina.

It appears further, that Mr. Haig had a considerable, if not the chief management of the affairs of the estate of Maj. Wise, till his death in the year 1808 *;*and that Mr. Joel Adams has acted upon his will as executor and that Col. Cuthbert 1ms latterly qualified as executor of Mr. Haig, Two other executors named in. Mr. Haig’s will have not qualified.

It also appeal's that Mr. Williamson, late sheriff of Richland district, sold a tract of land of the estate of Wise, under an execution, and has paid off that debt} and a surplus remains in bis hands.

It also appears, that Miss Wise, the devisee and legatee of Maj. Wise, married a Mr. Ball; from whom she was afterwards separated by agreement in writing, bearing date in the year 1800. He went away and is said to have died.

There was some rumor of her having afterwards married a man of the name of Butler; but it was not *334provea» She afterwards married a Mr. Campbell, anS ¿je,j in 1808, without having bad any issue by any of her husbands, but one. child, who died before her. Her husband Campbell survived her, but administration has been granted of her estate and effects to the complainant Mr. Clifton, by the consent of Campbell.

No evidence was given of the situation of the de-visees and legatees, Samuel Wise and Thomas Boak ; — * but it would seem from the will that they were residents *in*England, and subjects of that government.

It seems that before Mrs. Campbell’s death, she and her husband filed a hill against the executors of her father for an account and settlement of the estate ; but the death of Mr. Haig, the principal acting executor put an end to the suit.

This cause has been well and fully argued, and the court has derived much light from the learned arguments of the counsel.

Various points have been made, winch require consideration.

The first point was, that the complainant, the administrator of Mr. Campbell, had no interests in the estate in question, which could entitle him to come into this court, and call upon defendants for an account; for Mrs. Campbell, the daughter of Major Wise, had no rights under her father’s will, which were transmissible; for as she died without leaving issue, the property bequeathed to her, Went over in that event, to other devisees and legatees.

To this argument it was answered,

First,' — That the limitation over was to aliens, who were incapable of holding estates, therefore the devise was i oíd, and the estate devolved on the daughter and heiress of the testator, and her heirs and representatives.

Second,' — That the limitation over was too remote .and void, being made to depend upon an indefinite failure. of issue: therefore, that the whole vested in Miss Wise as the first taker, and was transmissible to her rev j>r<?sc-ntatives.

*335Third, — That if both these grounds failed, the daughter was interested in a distinct legacy of l0,000h currency, which was directed to be raised for particular *pwposes;*which interest was sufficient to entitle her or her representatives to require an account of the estate of her late father at least to that extent.

1 have considered the arguments of the counsel, and the authorities they have cited, with the attention they have deserved.

It docs appear that in point of fact the defendants are right in stating that the devisees in remainder-on the contingency of Miss Yfisc dying without issue were aliens. The will speaks of them as residing in and being of England, and no evidence has been given to rebut the violent presumption that they are English subjects. I must, therefore take them to be so : and in that ease, the law is clear, that an alien cannot hold lands in this country.

The question, whether English subjects though, born before the declaration of independence, are not aliens and incapable of holding lands in this country, has been fully argued in several cases in the supreme coui’t of the United States, and finally decided in the case of Dawson’s lessee, *vs.*Godfrey, reported in 4 Crunch, 321. This decision is obligatory on all the courts of the United States, and applies to the case under consideration. But it does not avail tho complainant much in this cause, for this doctrine applies only to real estate, not to personal; and aliens can receive and hold personal estate in this country beyond all doubt. And as to the real estate, the alienage of the remainder man does not, in my opinion, benefit the complainant; for the rule is, that an alien may take but cannot hold real estate. He takes for the benefit of the sovereign, and the law of es- ■ Cheat would apply to it. Besides the administrator of Mrs. Campbell could not have availed himself of the real estate, if it had devolved on her. Her heir at law, and Mother administrator, would represent her as to the real «state.

*336With respect to tbe limitation over of real anil personal estate, the question is, whether the same was not too remote, as being made to depend on an indef-finite failure of issue, ami therefore void as to tine devi-sees and legatees, and the property absolutely vested in Miss Wise as first taker.

This is the most difficult subject in the whole circle of law questions. It is the qnestio vexata, which has embarrassed and entangled many of the most able lawyers. Every opinion upon it should be given with caution and diffidence.

The words of the will must be examined with atten* tion. They are as follow :

The testator devised and bequeathed to his daughter Jane Ann Wise, all the rest and residue of his estate,, real and personal, to her and the issue begotten of her body forever *;*hut in case of death or failure of issue, ia liis said daughter Jane Ann, then, aud in either of these cases, he devised and bequeathed the same to his nephew Samuel Wise, and to Thomas Boak, his wife’» brothers, to be equally divided between them.

It was insisted in this case, on the part of' defendant, that the limitations over were good, and would take effect, on the dying of Mrs. Campbell without *issue;*as the words dying without issue, or failure of issue, ex vi termini, imported a dying without issue living' at the time of the death of the first devisee, the daughter. I do not agree that the law is correctly stated.

The general rule seems to be, that wherever an ex-ecutory devise as to real estate, is limited to take effect;, after a dying without heirs or without issue, subject to no other restriction, the limitation is void ; [Fcarn on Be-' vises, 110.] for the policy of the law will not suffer property to be tied up, and rendered inalienable in expectation of such remote contingencies.

And the like rule holds in the limitation of a term or personal estate, viz. that a disposition thereof, to take, effect after failure of heirs of the body, or dying without issue, without other restrictions, is too remote. [Fearn,. 144;. 167.1 For it seems to be perfectly settled with re*337spect t« terms for years, and other personal estates, (See a Atkins, 308, BeauclerkTS. Dormer,) that whenever an estate in them, is limited to a person in such a way that the limitation if applied to freehold property, would create an estate tail, and a remainder is thereupon given after a general failure of issue or heirs of the body, the whole vests in the first taker, and the remainder .is void. 1 P. Williams *132;*2 Atkins *376;*2 Vezey, 120 *;*1 Vez. 646 5 5 Bro. P. C. 435; 6 Vezey, 159 5 3 Bro. P. C. *257.*

Yet this rule is not without *exceptions;*for if the person to whom the limitation over is made, be a relation of and capable of being collateral heir to the first devi-see, in that case the first devisee takes only a-- estate tail 5 because the limitation over to the collate1 al heir plainly denotes that only lineal heirs could hn/e been intended; and the limitation over then, not hji.g a fee mounted on. a fee is good. — Fearn on Devises, 179 j Cases Temp. Talbot 1, Tyte *vs.*WilUs; 1 P. Wms. 23 j 2 P. *W,*3G9 *;*1 Vcz. 89 *;*3 Atk. 017.

And though an executory devise to vest on a dying without issue generally, is not good because too remote, yet where the dyi ig without issue is restrained to tho period of a li e (or lives,) in being, an executory devise limited thereon, will be good. — Fearn 182, Duke of Norfolk’s case.

in Iced if there be any clause or restriction whereby it plainly appears that the words heirs of the body or issue, were intended as words of purchase — [2 Atkins 89 ; I Vcz. 150, Cases Tail). 21; 2 Vez. 652; 2 Bro. *570*;] Or if the dying without issue, is restrained to the death of the tenant for life, whereby the remainder over can take effect as an executory devise — [Fearn 186; 2 Atkins 642 ; 3 Atkins, 396; 2 Vezey *233;*2 Bro. C. C. 55S;] in either case the words heirs of the body or issue, will operate as words of purchase, and the limitation over will be good. And the court of equity, in which it is in a great measure followed by the courts of law, seems willing to lay hold of any words in the will or other circumstances,which can tie up the generality of tho expression of dying without issue, and confino. it to *338«lying without issue living at the time of the death of the» tenant for life — Fearn 186 ; 1 P. Wms. 432, 534, 563, 66'; 3 P. Wms. 258 ; 3 Atkins 282; sYezey 121.-What those expressions of the will or circumstances are, \vv (he court lays hold of, to authorize this construction .•¿noniv be seen by referring to the decided cases, aw.! at; scarcely be brought within the compass of any distinct rule. The words dying without leaving issue or rUhires,, have been construed without issue living at devisee. So a devise to two, and d.J -de without children, then to th© "si: ned dying without children then tiic death of the fuu if cribo" ■»*’ iir w ,.v survivor, na„u.,e'i, living, because, the i¡ «mediate limitation over was to th© surviving de\ bee.

This intLnation of the court however is chiefly in cases «if personal e-dates. Fearn, 194,5,6; 200, 205 ; In cases of real -states, it seems the construction is generally otherwise, as is expressly stated in the text of that elaborate and profound ■ investigator, Mr. Fearnp, and in the notes ofhis learned editor, Mr. Powell. But certainly the reason given for it, to wit, to favor the heir at law, can have but little weight in this country, where the rights of primogeniture are entirely abolished. And I am the less inclined to support the distinction, as it led in England to the unseemly eifect of giving a different construction to the same words, in the same will, as applicable to real or personal estate, (Fearn, 195. 1 P. Wms. 667. SAtk. 288. 2 Yez. 606. Ib, 180. Ib. 125. Ambler, '.’85. Cowp. 410,) unless where the testator so manifestly intended the two estates should go together, that they could not be separated, without violating the first rule for the construction of wills; that is, to give *effect*f - the intension of the testator. 2 Yern. 324.

. At one time, some of the decided cases had gone so far as to say that the expression, *“*dying without issue/' would of itself, ex vital mini, imply a dying without issue living at the time of the person’s decease, as has been contended by the counsel in this case. 1 P. Wms. 199, 432, 565,748. But the modern cases deny such a construction of the words; and lord Hardwickc in Beau clerk *339■and Dorner, express!/ says that no authority came fully ftp to supporting the point contended for.' 2 Atk. S31, ■576. 2 Fez. 181. 1 Bro. 170, 188. •

Much and various discussion, and even differences ef opinion afterwards took place on this difficult subject, as will be perceived by a reference to Mr. Fearn’s book on devises, p. 236, on to p. 258, 9. And if is exceedingly difficult, if not impossible to reconcile those opinions and decisions, in the course of that disc ussion, we perceive Lord Chief Justice Wilmot, stating in Keily and Fowler, p. f-„ that the tiutb is, we are bound in the co.vV.' t* yd: words, “ heirs of the body,” to an a ’ *,vi'u*r.ensc of those words, unless there is v.,- -ju dión in tne testator of using them in thn« ■ -r 'V . is moaning. *wnc for that impose, which is in fa -■■ . ■: r .nnnon sense, the most trifling circumstance is suffiiúent.

And the result of all the complicated cases is surpmed op by Mr. Foam. p. 259, in these words, “'that although in the limitation of a personal estate after a dying without issue, those words. “ dying without issue,” shall not ex vi termini, and without the concurrence of • anv other circumstance of intention, signify a dying without issue then living, even though the limitation is in the nature of an estate tail, by implication only ; yet on the other hand, they shall not ex vi termini, when there is any other circumstance of intention, import an indefinite failure of issue, even though'the limitation is in the nature of an expi’css estate tail; but that in eitiier case, if the limitation rests solely upon the usual extent and import of those words, the limitation over is too remote and void; and the. whole vests in the first devisee or legatee. Bui" that in either case, the signification of these words maybe confined to a dying without issue then living, by any clause or circumstance in the will, which can indicate or imply such intention,”

See in support of this doctrine, the important case of Sheppard *vs*Lcssingliam, Ambler, p. 122. Fearn, 266, 7,9. And the case of Exel *vs.*Wallace, 2 Vez. 118, is very strong to shew that the court will always incline tt> *340support the limitation over, if it oan be done without the Violation of some plain and positive rule of law.

We come now to the application of these doctrines ter the case under our consideration.

The words of the will do certainly shew that the testator coupled the rest and residue of his real and personal estate together, and intended they should go together. If the limitation over then is good, as to either, it will extend to both, in order to effect the testator’s intention.

The earlier words of the will devising and bequeathing to the daughter, and the issue of her body, lawfully begotten, forever, do certainly give the impression at first, , that the subsequent limitation is grafted on an indefinite failure of issue. But the subsequent words are obscure. They say, hut in case of death, or failure of issue of my said daughter, then, and in either of these cases, I will, give, &c. the same to my nephews, Samuel Wise and Thomas Boak, to be equally divided.

After giving all the consideration I am able, to these words, it does not appear to me that we must, of necessity, take them to amount to an indefinite failure of issue, so as to render the limitation over void.

In one of the alternatives, which was certain, that of her death, it is a simple provision, that in such event, (without any provision as to issue) the limitation should take effect. But ií these words should be rejected for their absurdity, or rather for their incompatibility, with the remaining provision of the will, still the limitation over being to two living persons, to be equally divided between them, seems to restrain the testator’s meaning to his daughter’s dying without issue, living at her death. And so the limitation would be good.

Upon the whole, I think it is discernible that the testator did not intend these limitations over should depend on an indefinite failure of issue. Consequently, the court is at liberty to pursue the leaning it always feels, to support and give effect to the limitations over.

I am bound then to say, that I think these limitations over good and effectual in the event which has happened, of Mrs, Campbell’s dying without issue living at her *341death. Consequently, tbe administrator of Mrs. Camp-hell, will hayo no right to call the defendant to a general account for the administration of Major Wise’s estate.

But it appears to me as Mrs. Campbell had a life -estate in the real estate of her father, under his will, she and her representatives have a right to call upon the executors of Major Wise, for an account of the rents and profits of the real estate during her life, which it seems they held and occupied. Besides, she had an interest in the legacy of 10,000í. currency, which entitles her to come into this court for an account, though not a general one, of her father’s estate.

She had a right to enquire, whether the 10,000L was raised according to tbe will, how it has been applied, whether there is any surplus, and what part of it is coming to her according to the will.

It was objected to the claim to the whole or part of this legacy, that she was bound to shew that the money had been raised and applied according to the directions of the will, and that there was a surplus to which she was entitled. This is a most extraordinary objection. The Svill itself shews her interest; and it is for the executors and their representatives to shew that they have done their duty as they were directed by the will. Slie had a right to this account from them of their transactions, and the right survives to her administrator.

It was insisted that this is a stale claim, and should not be favored. But surely this is not an admissible doctrine in such a case. Here are executors many years in possession of a considerable real and personal estate, of which the only heir of the testator could reap little or no benefit, on the ground that the estate was oppressed with debts, which it is said are not yet finally Settled, And when at the end of 30 years, the heir or her representatives, asks for a settlement, she is told, you come too late, though we have never been ready to settle with you before : and though we still say the debts are not all paid.

It is indeed an old claim, but it not a stale claim in the legal sense of the term $ nor would a greater lapse of *342time under such circumstances make a claim stale in this ■ cour^

It was further objected to the complainant’s having any relief, that there are creditors of Major Wise, yet unsatisfied, who must be paid, before the legatee can derive any benefit from the estate. In other words, that she comea too soon with her claims.

It is obvious, that this objection is entirely at variance with the former objection, that Mrs. Campbell and her representatives came too late, and their claim was stale. As to the present objection, how much longer is she to wait, on the ground of debts unpaid ? It is surely time for defendant to shew how the estate has been disposed of, what debts have been paid, and what remain unpaid, and why they arc unpaid. The daughter and her representatives have a right to some account, and to have a time fixed for the settlement of the affairs of the-estate, at least to the extent of her- interests. When that-' -account is rendered, the court will take care by its decree to protect the rights of bona fide creditois, remaining unpaid, before legacies are paid.

It was further insisted that the defendant was not bound to account to the present complainant? the administrator of Mrs. *Campbell;*because whatever her rights were, they went to her first husband? Mr. Ball, or to her second husband, Mr. Campbell, who survived her.

To this it was answered, and I think satisfactorily? that if she were ever actually married to Ball, she had separated from him by written agreement, in which he substantially, though informally, renounced all interest in her or her property. The ingenious counsel asked to whom, or for whose benefit was the renunciation ? I answer, for the benefit of her who had an interest in such renunciation. Besides, if she was married to Ball, she survived him, and the demands she had on her father’s estate under his will, were diosos in action, which not having been reduced to possession by him, survived to her representative^.

*343As to Campbell, it appears that he also separated bimself from his wife. But If this did rot affect his rights as surviving husband, it is expressly stated, and not de•nied, that this administration is taken out with his consent. Indeed it must have been with his consent, or by. his permission, that Mr. Clifton obtained letters of administration. His opposition must have infallibly defeated the application of Mr. Clifton, in the. Court of Ordinary.

Another objection was, that the complainant had not made all the proper parties to the suit. That Major Wise left other executors, who should have been made defendants, as they may have possessed the estate in whole or in part, and may have, made settlements and payments, all which ought to be disclosed, particularly Gen. Harrington, who certainly did qualify, and act’ as executor.

It certainly is the rule of the court, to require that all persons, who have any interest, should he parties to the suit, and ought to be made so before a definitive decree is pronounced. And it is a rule of much utility, as it prevents multiplied litigation. The court can decide better, and more effectually when all the parties, and all the rights are before it. But it is a rule of convenience, and not of absolute necessity; and if it were carried rigorously info effect, it would become the instrument of injustice. In tins case, General Harrington has long since removed to Nortli-Carolina, out of the jurisdiction of this court, and he is since dead, without any known representatives here. To turn a party round in the prosecution of a just claim, on the ground that persons so situated, must in all events be made parties, might defeat the claim altogether. Nor is it necessary in order to obtain information. For a decree pro confesso, would do no good to any of the parties litigating, as it would throw no light on the. transactions of the estate, which is the professed object of requiring thorn to be made parties. Cui bono is all this resistance on this ground ? It is not necessary to defend the other executor; for each executor is responsible for bis own transactions and no more. So too of Boak, a person pained executor then resident abroad, and whose resi-, *344deuce here at any time is equivocal, and no proof that be evel'mcc^led with the estate, or where he is at present. As to the Blakes, their being devisees and legatees of Mr. Haig does make it necessary to make them parties. The executors represent the estate, and when Mr. Haig’s debts are paid, they come in under his will. So too of Kingsley, who took out an illegal administration in an illegal court erected by a foreign enemy. A hundred cases have decided all those acts null and void. It does not appear to me Jabso-lutely necessary to the purposes of justice that any of these parties or the unqualified executors of Mr. Haig should bs made defendants. If it should appear to be so in the progress of the cause, the court can order it at any future stage. The case is different as to Col. Cuth-bert, who has qualified on Mr. Haig’s will; he is resident in the state, and may throw light on those transactions; He ought to be made a party.

One more objection still remaihs to be considered, and disposed of. It is said that this hill is not filed for the recovery of a particular legacy, but for the residuary estate, and that there is no prayer for general relief in the hill of complainant; and that no decree can be given in favor of the complainant, except what comes distinctly within the case made and the prayer of the bill. It would be unfortunate for all parties, if this objection should prevail, as it would not be fatal to the claim, hut merely turn the party round, to begin another suit at new expence, and with new delays.

The rule' is best laid down in the case of lord Walpole *vs.*lord Orford, 3 Vez. jr.. 402, 416.

It is that where there is a case made by the bill, and a specific relief is prayed, and also a prayer for general relief, whatever 'latitude the court takes on the prayer for general relief, no relief can he given upon it, that is inconsistent with the specific relief prayed, and that does not apply to the case made by the bill. And the case is stronger where there is no general prayer for relief. In that case, the court will be confined more narrowly to the case made by the bill, and to the relief specifically prayed for..

*345The brief the bill furnished me in this case is imperfect, and I fear the bill itself is so. Yet as it refers to the will generally, of which acopyis filed, and as itaslcs generally for an account, it might not be straining too much to say there is enough of the case before the court to enable it to order an account according to the. rights of the parties. But as I shall he obliged in this case to order the addition of some parties to the bill, it will be safer at the same timeto give leaveto the complainant to file a supplemental bill, to bring the necessary matter in addition to the case made by the original bill, before the court, as is sometimes done, cv.en after hcaring the cause, where the complainant appeal's to be entitled to some relief, hut the case made by the bill is insufficient to ground a complete decree. See 3 Atk. 133.

The result of all the foregoing, is, that I am of opinion the limitation over, under this will, is not too remote and-void, but is unqualifiedly good as to the personal estate, and carries the property to the legatees, andthelimitation is good as to the real estate, though the devisees being aliens, the land may escheat to the state. Therefore the representatives of Mrs. Campbell have no right to call for a general account of the estate so devised and bequeath- , ed over. But as she had a right to the rents and profits ®f the land during her lifetime, her representatives have a right to demand an account of them, from the executors, who occupied them as part of the estate. She also had a right to the surplus of the 10,000k if sot to the whole sum 5 and therefore her representatives may justly insist upon an account as to that fund.

That it is not necessary to make the representatives of Gen. Harrington or Thomas Boak parties, nor Zeph. Kingsley, nor the creditors of Major Wise, nor the Blakes, the devisees and legatees of Mr. Haig. But it is proper to make all the qualified executors of Mr, Haig defendants. And finally, that though possibly the court might decree on the case made by the bill, and the prayer, it is *doubtful;*and therefore it would be better, that the bill should be amended and made more specific in its charges as to the legacy of 10,0001. *•,*and as to the *346vents and profits of tbe real estate during the life of Mrs. Campbell, arid that a prayer for relief be adapted to the new case.

It is therefore ordered and decreed, that the complainant do make all the qualified executors of Mr. Haig defendants in this suit. And that the complainant have leave to file a supplemental hill, (or to amend his present bill, if the defendants counsel consent thereto) to bring before the court, in addition to the original bill, the charges respect'rig the 10,000i. legacy, and the rents and profits of the rear estate, and such other matters as the complainant may consider essential to the Ml devclope-naent of his claims.

With respect to Mr. Williamson, there can be no difficulty. A surplus remains in his hands, which belongs to the estate of Wise. He can make no legal or safe disposition of this fund ,* neither the creditors nor legatees look to him for that estate. He is bound therefore to pay it over where it will be safe, and where it will, be applied to its proper purposes.

It is therefore ordered and decreed, that the said C. Williamson, do pay over the nett balance remaining in his hands, from the sale of the land of the estate of Major Wise, to the commissioner of this court, subject to the future order and direction of the court.

From this decree an appeal was made by the complainant, on the following grounds :

His honor judge Desanssure will please take notice that the plaintiff will move the next Court of Appeals to reverse his honor’s decree in this case, as it respects Charles Williamson, so far as relates to the limitation over, on the following grounds ;

First, — That it is void, as being impossible or unlawful.

Second, — That it is an estate in fee vested in the child of Jane Ann Campbell.

Third, — That it is an estate tail general, and the limitation over too remote.

C. Clifton.

And an appeal was made by the defendant, Charles Williamson, on the following grounds:

*347His honor, the presiding judge, will be pleased to take notice, that’the defendant Charles Williamson, will move the next Appeal Court of Equity, to be held at Columbia, to reverse the decree in the above case, as it regards the. defendant, Charles Williamson, on the following grounds:

First, — Because the said defendant ought not to pay the money in his hands to the commissioner of the court, lie being no party to the suit, and not having made any prayer to that effect.

Second, — Because the court ought not to have ordered thcodicer of another court to pay money into the hands of an officer of this court.

Third, — Because the rights of the remainder man even if they had been British subjects, are good, particularly under the treaty of 1794.

A. Blanding, defendant’s solicitor.

These appeals came to a hearing before Chancellors James, Desaussure, GailSard and Waties, who after argument delivered the following decree:

We are of opinion that the decrees given by the Circuit Court in these two cases should be affirmed for the reasons which are stated therein.

It is therefore ordered and adjudged that the said decrees be affirmed, and that the costs be paid out of the funds in the hands of C. Williamson.

W. James,

HeNRY W. Desaussure.,

Theodore Gaiddaed,

Thomas Waties.

The sheriff, Charles Williamson, not having complied witli the decree of the court, by paying over the money in bis bands, and having left the state, and a return of nulla bona having been made to the execution, which was issued, the complainant in this cause applied to the Circuit Court, for leave to mako the securities to the sheriff ’s bond, parties to the suit. Judge James, who then presided, gave the leave required, and the securities were made parties defendants to the suit.'

*348These defendants demurred, on the ground, that the complainant had plain and adequate remedy at law on the sheriff’s bond, against him and his securities; and on the ground, that the complainant came too late, after a de„ cree, to seek to make new parties to his bill.

The demurrer was argued before judge Besaussure, who delivered the following decree:

Most of the points in this case have been disposed of in a former decree. The question now is on a demurrer. In the former decree it was ordered, that Charles Williamson, one of the defendants, who had been sheriff of Kich-land district, should pay over the nett balance remaining In his hands from the sale of the landof the estate of Maj. Wise to the commissioner of this court, to be held by him, subject to the future order and direction of this court: the balance remaining in bis hands, being §52,150. That decree has not been complied with,¡¡(though *ñ*fa was issued, and nulla bona returned *by*the sheriff) Williamson having left the state. The complainant in order to get at the securities, asked leave of the Circuit Court, subsequent to the decree (and return of nulla bona) to amend his bill by making the securities of the sheriff in his bond, parties to the suit. The, judge who presided here in February last, gave the permission requested, and the securities were made defendants. They have demurred and have assigned for cause of demurrer, that the complainant, if he has any cause against them, has a plain and adequate remedy at law. The demurrer had been argued, and the defendant’s counsel insisted on the irregularity and incongruity of amending a hill to make new parties defendants after a decree against the original parties, the amendment stating that very decree as a ground of providing against the new defendants, and also that the regular and legal remedy for the complainant was by suit at law, on the bond given by the securities for the sheriff’s faithful execution of his office. And *the*counsel relied on a case decided in Camden, and affirmed by the Court of Appeals as decisive of this question. lie stated it to have been as follows: “it was a b ill filed by Hoel and wife, administrators of W. Bond *349*vs.*Clark, administrator of Carpenter, who had been administrator ofBond; and against Blanchard, security of Carpenter, in the administration bond he gave to the Ordinary for the estate of Bond. In that ease, the Circuit Court made the administrator of Carpenter account for the money received by him as administrator, but the court sustained the demurrer filed on the part of Blanchard, the security, because there was plain and adequate remedy at law by suit on the administration bond.” Ido not feel itin-cumbent on me to give a decided opinion on the first ground of objection. If the defendant had been dissatisfied with the order of the circuit judge authorizing the amendment, he should have appealed from it; and if it was not a proper subject of appeal, as being a mere interlocutory order, I should not reverse that order now, without very decisive reasons for it. The court has gone great lengths in permitting amendments to prevent the necessity of new suits In some cases, even after hearing a cause, the court has given leave to file a supplemental bill, to bring some matters before the court, which appeared to be necessary to a complete decree. 3 Atk. 133. And where the amendment necessary is merely the addition of parties, the court has usually made orders for the cause to stand over, with liberty to the plaintiff to amend the bill by adding proper parties. 2Bro. P. C. 194. Cooper’s Pleadings, 344, 5. I do not find however, that the court over went so far as to allow the addition of parties after a full decree. I will however leave this question as I found it decided, as it does not affect the question of the demurrer, with a request that the point be carried up with the decision on the demurrer, if that should be appealed from. On the demurrer, I should perhaps have hesitated, especially as here the hill is against the administrators of the securities in the administration bond, to oblige them to account, and would certainly save circuity of actions,- but the case cited as decided at Camden and affirmed by the Court of Appeals, seems to be applicable and conclusive. Let the demurrer be sustained.

From this decree, the complainant appealed on the -following grounds :■

*350CJ. Clifton, for appellants.

First, — The case of Hoel and wife was governed *by*the act which saves securities from all suits until nulla bona or fi fa against sheriff is returned, which was not done in tiiat case, and which was clone in this case.

Second, — Because Williamson was in contempt of the decree anil process of this court, holding money for which creditors were waiting at the threshold of this court, and among whom it was the duty of this court to cause the money to he paid ; and in fact, the court by its decree had appropriated a part of the money ascertained to be in the hands of said Williamson.

Third,' — Because, with this decree standing, it is impossible to re-cover at law on the sheriff’s bond.

The appeal eras heard by the court, present Chancellors Desaussure, Watics, James and Thompson, and the court affirmed the decree of the Circuit Court.