
    Sadler’s Executors and Legatees v. Green.
    Monday, October 13, 1806.
    Joint Appeal — Executors and Legatees — Security.— Where executors and legatees jointly appeal, the legatees (being in possession of the property in dispute) may lie ruled to give security for the prosecution of the appeal.
    
      
      
         Appeal by Executors- Necessity for Security. - Executors and administrators are not bound to give security on an appeal, because they give it when they undertake the administration of the estate of their testator or intestate. To this point, tile principal case was cited in Shearman v. Christian, 1 Rand. 394: Pugh v. Jones, 6 Leigh 305, 306; State v. Johnson, 28 W. Va. 65, 79.
      For the executions to this rule, see foot-note to Wilson v. Wilson, 1 Hen. & M. 16: foot-note to M'Cauley v. Griffin, 4 Gratt. 9, discussing the subject at some length.
    
   On an appeal from the Williamsburg Chancery District Court.

In this case the appellee obtained an interlocutory decree for some negroes, then being in the possession of the legatees, and for an account of their profits. From this ^decree an appeal was taken, more than two years ago, to this Court, both by the executors and legatees, but no security given.

Wickham, for the appellee, moved to abate the suit as to the executors, (who were dead,) and to dismiss the appeal as to the legatees. Although he admitted that no security on the appeal could be required of the executors in this case, yet, as the legatees, who were in possession of the negroes, had likewise appealed, they certainly ought to have given security7.

Hay, on the other side, objected to taking up the subject, after such a lapse of time since the appeal, without notice of the intended application.

By the Court. The appellee has suffered two years to elapse without making any application to the Court respecting the security to the appeal. It would not now be proper to rule the appellants to security without notice. Let a rule be made on the legatees returnable to the next term, to shew cause why security should not be given.

Afterwards, Thursday, October 16th, Hay submitted a question to the Court, whether the appeal as to the legatees would be dismissed, if they did not give security?

By the Court — (absent Judge Fleming.) Executors and administrators are not bound to give security on an appeal, because they give it, when they undertake the ad-., ministration of the estate of their testator or intestate. But the legatees, in this case, being in possession of the property, which" is personal, are bound to give security for the prosecution of the appeal, or it will be dismissed as to them.  