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, of 25l. was allotted to Elizabeth Sheppard, and she was to receive the sum of 191. 10s. to make up her share.

In answer to the bill of review, Starke and wife did

not admit that the executor had really incurred the exand

penses amounting to 37/. 148.; and alleged that his de mand of commissions, if allowed, would be far short of the interest on the large balance in his hands, which in terest ought to have been decreed against him. They admitted that the testator left nine brothers and sisters, but alleged that Willium Sheppard's share was to be equally divided among the eight survivors ; because their father, Benjamin, who inherited that share, was since dead, and had, by his last will, directed the residue of his estate, in which his right to the said share was included,) to be so divided. They did not admit the account exhibited by the executor, for 57. 78. 11d. as aforesaid, to be just; except 177. 116. for wedding

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clothes ; part of the remaining charges in the said account being dated at a time when the said Eizabeth was about 12 or 13 years of age, and while her father was living; and the whole of them before she attained the age of 17; alleging, that she had a guardian alter the death of her father, who left her property for her inaintenance ; that she lived with her mother, with whom Philip Shep. pard, the executor, also lived, &c.

A general replication was filed, and Commissioners to rake depositions were awarded, in October, 1801. la October, 1805, on the motion of Starke and Wife, the Court directed one of its Commissioners to examine, state, and settle, and to the Court report, all accounts between the parties. In obedience to this order, the

Commissioner, being prevented, by the executor's refusing to produce his vouchers, from going into the administration account de nivo, contented himself with reforming the same, by giving the executor credit for commissions, as a compensation for his trouble and expense,) to the amount of 1731. 12$. ; (not allowing the 371. 148.)

ting a just debit to the estate for money paid in

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Wife.

OCTOBER, amount of the subsequent balances, on which interest

was charged. And payments were applied to the disSheppard's charge of the interest in the first pace.

A balance of 561. 14s. 9d. was stated as due on account of Edmund Starke and

James's assignment; of which 45l. 17s. carried interest
from the 3d of January, 1806.

To this report sundry exceptions were filed, but over.
ruled. And, on the 6th of September, 1807, the Chan-
cellor decreed, “ that the said executor, out of the estate
of his testator in his hands to be administered, pay, to the
said Starke and W fe, 2011, 4s. 11d., with interest on 164/.
11s. 6d., part thereuf, from the said 3d day of January,
1806, and costs ; without directing bond and security to
be given to answer future claims against the estate:” to
this decree, a writ of supersedeas was awarded by a Judge
of this Court.

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Wirt, for the appellant, (after observing that none of the legatees, except Elizabeth Starke and Philip Sheppard, were parties to the original bill, and that the plaintiffs claimed, in that bill, only Elizabeth's eighth part, saying nothing of the assignment by Edmund James, or of their right to William Sheppard's share,) proceeded to rely on the following points :

I. Proper parties to the suit were wanting.

1. The other claimants on the residuary fund should have been parties, for the purpose of avoiding multiplicity of suits ; the rule being, that, although the claimant of a pecuniary legacy may sue alone, all the residuary

legatees must be parties to a bill for a share of the resi(a) Coop. Eq. duum.(a) 186.

Bro. Ch cuses,

2. William Sheppard's personal representative should 365.

have been a party. It is true that Philip Sheppard (the
defendant) was his administrator ; but he was not sued
as such ; and it was certainly wrong to draw out of his
hands William's dividend, without giving him an oppor-
tunity to establish his set-offs, (which, according to his

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1811,

Starke and

Supreme Court of Appeals. BER, amount of the subsequent balances, on which interest 11.

was charged. And payments were applied to the di -pard's charge of the interest in the first pace. A baʼance of cutor

561. 149. 9d, was stated as due on account of Edmund ce and ste. James's assignment; of which 45). 178. carried interest

from the 3d of January, 1806.

To this report sundry exceptions were filed, but over. ruled. And, on the 6th of September, 1807, the Chancellor decreed, " that the said executor, out of the estate of his testator in his hands to be administered, pay, to the said Starke and Wfe

, 2011. 45. 11d., with interest on 164. 118. 6d., part thereof, from the said 3d day of January,

1806, and costs ; without directing bond and security as be given to answer future claims against the estate:" to this decree, a writ of supersedeas was awarded by a Judge of this Court

exceptions to the Commissioner's report, appeared con-
siderable) against the estate of the said intestate.
3. Austin Morris, executor of Benjamin Sheppard, Sheppard's

Executor
who was heir of William, is also a proper party. In his
deposition filed in this cause, he claims, in his capacity as Wife.
executor, the balance due from Philip Sheppard, as ad-
ininistrator of William.

II. The decree is wrong in confirming the Commissioner's last report.

1. The dividend of Edmund James ought not to have been decreed, upon his ass gnment. The executor had a right to demand bond and security from Edmund James, to answer debts accruing thereafter. Besides, James was himself a debtor to the executor.

2. Mrs. Starke was not entitled to draw her own dia vidend, without paying what she owed on account of the articles furnished her before her marriage. The executor maintained and clothed her three years after her father's death. She lived with him, and, in consideration of the services she rendered by needlework, he charged her nothing for food and raiment generally, but only for money advanced for substantial and necessary purposes ; such as cash paid for inoculat on, to a midwife for attending a negro woman, &c. The deposition of Austin Morris says, she admitted (since her marriage) the accouat to be just. In a case like this, her acknowledge ment (though made by a feme covert) ought to be received as evidence; because they who are seeking equity ought to do equity.

3. Interest is not properly charged on the balances from the end of each year ; since the executor was continually paying current claims, as appears from the ac

Wirt, for the appellant, (after observing that none of the legatees, except Elizabeth Starke and Philip Skepa pard, were parties to the original bill, and that the plaintiffs claimed, in that bill

, only Elizabeth's eighth part, saying nothing of the assignment by Edmund James, or of their right to William Sheppard's share,) proceeded to rely on the following points :

I. Proper parties to the suit were wanting.

1. The other claimants on the residuary fund should have been parties, for the purpose of avoiding mulipli

. city of suits ; the rule being, that, although the claimant of a pecuniary legacy may sue alone, all the residuary

count.

4. The Commissioner ought to have opened the administration account again ; the order being only to settle the accounts between the parties.

BIO.

legatees must be parties to a bill for a share of the resi Eq. duum.(a)

2. William Sheppard's personal representative should have been a party. It is true that Philip Sheppard (the defendant) was his administrator ; but he was not sued as such ; and it was certainly wrong to draw out of his hands William's dividend, without giving him an oppor tunity to establish his set-ofs, (which, according to his

Munford, for the appellees. The objection, for want

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Starke and

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185.

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OCTOBER, of proper parties, ought not to be supported, when it is

made, for the first time, in the appellate Court, and it Sheppard's does not appear that additional parties are requiste to Executor

the justice of the case. Such objection might have been
made, in the Court below, by demurrer,(a) or by plea.(6)

But this was not done. The defendant to the original (a). Coop. Eg

bill consented to render the account of his administra. (0) Id. 289.

tion, and to have a settlement with the parties now be-
fore the Court ; and even in his bill of review he made
no complaint that proper parties were wanting. The
Chancellor's decree directed a division among all the
legatees, in the same manner as if they had been parties ;
evidently, regarding them as such ; probably, because
they were all named in the bill. It appears probable, too,
that they considered themselves parties to this suit ;
since they brought no other for satisfaction of their
claims. The appellate Court ought, therefore, to pre-
sume that the executor on the one side, and the several
legatees on the other, were content to abide by the settle-
ment of the administration account, intended to be had,
in this suit, for the benefit of all parties interested. The
maxim that consent takes away error, emphatically
applies in this case. Philip Sheppard had every oppor.
tunity he could have desired of establishing, before the
Commissioner, his set-offs, as administrator of William
Sheppard ; but he exhibited no proof. His exceptions,
on that ground, were therefore properly disallowed.
The claim of Austin Morris, as executor of Benjamin
Sheppard, was considered by the Commissioner; but,
very correctly, he was of opinion, that the money ought
not to be paid over to him, merely for the purpose of his
paying it back to the legalees; there being no debts of
his testator to which it should be applied; and the widow
relinquishing her claim. Surely, in such a case, there
can be no reason for withholding the money from the
legatees in the first instance.

2. As to the allowance of Edmund James's assign-
ment; the prayer, for general relief, at the conclusion of

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1811

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V. Starke and

OBER, of proper parties, ought not to be supported, when it is 311.

made, for the first time, in the appellate Court, and it apard: does not appear that additional parties are requiste to ecator

the justice of the case. Such objection might have beta ke and ife. made, in the Court below, by demurrer, (a) or by plea(6

) But this was not done. The defendant to the original op. Eg

bill consented to render the account of his administra 1989.

tion, and to have a settlement with the parties now before the Court; and even in his bill of review he made no complaint that proper parties were wanting. The Chancellor's decree directed a division among all the legatees, in the same manner as if they had been parties

; evidently, regarding them as such; probably, because they were all named in the bill. It appears probable, ton,

that they considered themselves parties to this suit ; since they brought no other for satisfaction of their claims. The appellate Court ought, therefore, to presume that the executor on the one side, and the several legatees on the other, were content to abide by the settes ment of the administration account, intended to be had, in this suit, for the benefit of all parties interested. The maxim that consent takes away error, emphatically applies in this case. Philip Sheppard had every oppor. tunity he could have desired of establishing, before the Commissioner, his set-offs, as administrator of Williams Sheppard; but he exhibited no proof. His exceptions, on that ground, were therefore properly disallowed. The claim of Austin Morris, as executor of Benjamin

the original bill, was sufficient to comprehend it. If not, OCTOBER, it will, nevertheless, appear in the record, that that claim was demanded and recovered by Starke ; and this will Sheppard's

Executor be a bar to any future suit for the same thing, by James himself, or his assignee. A Court of Equity ought to Wife. regard the substantial merits of the case, and not to sacrifice justice to formal and captious objections. There could be no reason for requiring bond and security to be given by Edmund James, or the other legatees ; because the executor did not require it in his answer to the original bill. He might, therefore, be considered as waiving such demand.

The set-off claimed by him, on account of a bond given by James, for property purchased at the sale of the estate, is allowed by the Commissioner in his report; after deducting which, the balance of 561. 14s. 9d. appears to be due ; so that Mr. Wirt is mistaken in saying that James was a debtor to the executor.

The claim of the executor, for articles furnished Mrs. Starke before her marriage, was rejected by the Commissioner for very good reasons set forth in the report. Mr. Wirt is mistaken in supposing that she lived in his house. The fact, as stated, is, that she lived with her mother; and the advances made were such as an affectionate brother would naturally make, as presents, to his rister, who was then a young girl. The wedding clothes were allowed on the ground of the admission of her husband; but evidence of her acknowledgment when a feme covert, that the account was just, could no more bind him, than her assumption would.

3. The mode of charging interest, in the administration account, on the balances due at the end of each year, was, in this case, highly favourable to the executor; since it appears, that " he had the use of considerable sums, during the greater part of each year, without interest ;" and, if it was not strictly correct to carry the interest, due upon each balance, into the accounts of the ensuing year, it will be found, on calculation, that this

Sheppard, was considered by the Commissioner; but, very correctly, he was of opinion, that the money ought not to be paid over to him, merely for the purpose of his paying it back to the legalees, there being no debts of his testator to which it should be applied; and the widow relinquishing her claim. Surely, in such a case, there can be no reason for withholding the money from the legatees in the first instance, 2. As to the allowance of Edmund James's assiga. ti the prayer, for general relief, at the conclusion of

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