
    
      Hickerson’s Adm’r v. Helm.
    February, 1844,
    
      Richmond.
    
    (Absent Cabell, P., and Brooke, J.)
    Executors and Administrators — Set-Off of Distrib-utee’s Share against Purchases. — The rule laid down in Pulliam v. Winston &c., 5 Leigh 324, that a dis-tributee purchasing at an administrator’s sale cannot injoin the collection of the bond for his purchases until his distributive share is ascertained and set off against the bond, approved as a general one ; but an exception to it recognized.
    Same — Injunction by Distributee’s Donee of a Slave to Sale under Execution for Debt of Distributee of Estate — Set-Off of Distributable Share against Judgment —Parties—Case at Bar. — In November 1815, at a sale by an executor on 12 months credit, a distributee was one of the purchasers. The person requested to be her surety manifesting some reluctance to become such, the executor assured him that there was no danger of his having any thing to pay, as the purchases by the distributee were not so much as her portion of the estate. Whereupon the bond was executed. The executor died in 1821, and there was immediate administration on his estate, and on that of the first testator ; but no suit was brought on the bond till 1827. Judgment was then obtained on it: and in the same year some of the legatees brought a suit for a settlement of the executorship account. In 1832, the distributee acquired slaves by the death of her father, and made a voluntary conveyance of them. One of them was sold under execution upon the judgment, and purchased by the administrator de bonis non at the sheriff’s sale. Two others being afterwards levied on, the donee filed a bill in 1833 against the judgment creditor, to restrain the sale. During all this time there-was no settlement of the executorship account; and none took place until the administrator of the executor was coerced to settle, by attachments for his contempt in disobeying the orders of the court in the suit of the legatees. Held, 1. On the donee’s bill, an injunction may be awarded to restrain the sale of the two slaves levied on,, until the amount of the distributee's claim is ascertained ; and when ascertained, the same may be set off against the judgment. 2. The distrib-utee is an indispensable party to the donee’s. suit. 3. As a suit is pending in which all the other distributees are parties, there is no necessity to make them parties in the donee’s suit, hut the proper course is to retain the injunction until, by the adjustment of the account in the other suit, the amount of the distributee’s claim is finally liquidated, and then to apply that amount as a setoff against the judgment, 4. It be-629 ing ascertained that after allowing *credit for the entire claim of the distributee, she was indebted, at the time of the sale of the slaves first levied on, more than the amount for which he sold, the credit in respect to that slave cannot be enlarged to what is estimated as his value at the time of the sale, but must be limited to the amount made on the execution by the sale of him : dissen tiente Baldwin, J., on the last point.
    Same — Settlement oi Accounts — Widow’s Interest as Distributee — Case at Bar. — A testator dies possessed of slaves, to a third of which his widow, who renounces his will, is entitled during her life. In a settlement of the executorship account after the death of the executor, and after the widow’s death, it appears by the appraisement that the slaves were seven in number. Two were specifically bequeathed by the testator, and the presumption is that they were delivered over to the legatees. Two were sold under execution of a creditor of the testator, before the executor had other assets in hand to pay the execution, and were purchased by the executor at the sheriff’s sale. And two others were sold by the executor, though the payment of debts did not require the sale of them if the widow had paid up a sum of 792 dollars 48 cents, due from her for purchases of the testator’s goods. When or for what prices these two were sold, did not appear. The record furnished no information of the disposition of the seventh slave ; but the probability is that he was old and of little or no value. Held, the charge for the widow’s interest in the slaves, instead of being measured by their estimated hires, should be an annual sum from the death of her husband until her death, equal to the annual interest of one third of the gross amount of the sales or the value of the slaves : dissentiente Baldwin, J., who was of opinion that the widow was entitled to credit for one third annually of the estimated hires.
    In 1815 Joseph Hickerson died, leaving a will by which he gave legacies to his children, and leaving a widow Elizabeth, who renounced the provision made for her by the will. His son Marshall Hickerson qualified as executor, and on the 9th and 10th of November 1816, made sale, on a credit of 12 months, of the perishable goods of his testator, and of some of the other personalty. Elizabeth Hickerson. made purchases at this sale to the amount of 792 dollars 48 cents, and gave bond for the same with Daniel Hickerson as her surety. Marshall Hickerson died on the 3d of July 630 *1821 (while away from home) in Augusta in Georgia. In August of that year his brother Hosea qualified as his administrator, and as administrator de bonis non with the will annexed of Joseph Hickerson. In March 1827, the legatees of Joseph Hickerson brought a suit against the said Hosea (to which the said Elizabeth was made a party) for a settlement of the executorial accounts, and a distribution of the said Joseph’s estate. About the same time an action appears to have been brought by the said Hosea, as administrator de bonis non, against mrs. Hickerson and her surety, upon the bond before mentioned: for, in June 1827, an office judgment was rendered against them. An execution on this judgment was returned by the sheriff without any part being made; and then no other execution issued for about five years.
    In the mean time, proceedings were going on in the suit of the legatees, the style of which was Shumate &c. v. Hickerson &c. In that suit, on the 19th of May 1828, the defendant Hosea Hickerson was ordered to render an account of his administration on the estate of Marshall Hickerson ; and on the 21st of September 1829, he was ordered to render, in addition, an account of his transactions as administrator de bonis non of Joseph Hickerson, and an account of Marshall Hickerson’s transactions on the same estate. In May 1830, a rule was made upon the said Hosea to shew cause why he should not be attached for his contempt in failing to render the said accounts; which rule was made absolute on the 2d of October 1830: but on the. 11th of the same month, upon an affidavit of the said Hosea, stating (among other things) that he had rendered an account to the commissioner as far as he was enabled to do so, the order making the rule absolute was set aside. Again, however, on the 16th of October 1830, an attachment was awarded, with a proviso that it was to be discharged upon the 631 said Hosea’s appearing before *the commissioner, and answering interrogatories upon oath in relation to the said accounts.
    On the 26th of March 1832, the will of James Parr was proved, whereby he gave to his daughter Elizabeth Hickerson a third of his slaves and a share of his other estate. A few days afterwards the following deed was made:
    “Know all men by these presents, that I, Elizabeth Hickerson of the county on Fauquier and state of Virginia, for and in consideration of the several expenses and troubles that my son in law mr. Lina Helm has been at, and which may hereafter accrue, together with the natural love I bear towards his wife Jinsey Helm, have given and by these presents do give to my said son in law Lina Helm all right, title and claim that I have coming to me by a legacy from my father James Parr deceased. In testimony whereof I have hereunto set my hand and seal this 29th day of March 1832.
    her
    Elizabeth Hickerson X [Seal.]” cross.
    “Signed, sealed and delivered ) in presence of )
    
    “Wm. Gungin, James B. Lyn,
    Thomas Helm. ’ ’
    On the 6th of April 1832, under an order made at March term, the slaves of James Parr were divided by commissioners among' his legatees; upon which division there were allotted to mrs. Hickerson, King valued at 300 dollars, Lucinda at 260 dollars, Hannah at SO dollars, John at 80 dollars, and Dick at 25 cents. The division was returned to court the 28th of May 1832, and ordered to be recorded; and on the 23d of November 1832, the deed to Helm was acknowledged in the clerk’s office, and admitted to record.
    On the 19th of January 1833, an execution issued in favour of Hosea Hickerson, 632 as administrator, against *mrs. Hickerson and Daniel Hickerson her surety; but the county court quashed it, because Daniel Hickerson was dead at the time it was issued. A new execution was issued the 12th of April 1833, against mrs. Hickerson alone, which was levied on the slave King. Hosea Hickerson gave an indemnifying bond to the sheriff, and the slave was sold for 325 dollars, the said Hosea becoming the purchaser. The sheriff returned that this was all the property he could find. But some time afterwards a new execution was sued out, which was levied upon two other slaves Lucinda and John,
    Whereupon, to wit, on the 22d of July 1833, Lina Helm exhibited a bill to the judge of the circuit court of Fauquier, asserting that under the deed from mrs. Hickerson he became entitled to certain property, part whereof consisted of Lucinda and John, who were delivered up by the executor of Parr in March 1832, and from that time until lately had been in the complainant’s possession. The consideration of the deed, he alleged, was not only good but valuable; and he made the following statement concerning it. ‘ ‘The said Elizabeth, at the time of its execution, and for a length of time previously, was an inmate in your orator’s family, and has been and is so living up to this moment. In maintaining, supporting and providing for the said Elizabeth, your orator had, prior to the execution of the said conveyance, encountered considerable expense, and has since encountered more. As some remuneration to your orator for the expenses thus incurred by him, as well as some indemnity for expected future expenses, the aforesaid conveyance was executed.” The bill insisted that the deed invested the complainant with a good title against any creditors of the said Elizabeth (even if she had any). But the ground was further taken, that the said Hosea Hickerson was not entitled to enforce his judgment, even against the said Elizabeth.
    For, it was alleged, her interest 633 *in the estate of Joseph Hickerson was more than her bond, and had been so stated by Marshall Hickerson. The bill, after detailing some circumstances in regard to the levy upon Lucinda and John, mentioned (in aggravation, as it would seem, of Hickerson’s conduct) his course in regard to King; stating, that on the day of sale an injunction was granted to restrain the sale, but before the injunction bond could be executed and the process perfected, and after the sheriff was apprized of the injunction, the sale took place, at a price much below the actual value of the slave. “Thus then,” the bill proceeded, “has your orator been deprived of one of the negroes already which he obtained under the aforesaid conveyance, and an attempt is now making to deprive him of the other two.” The prayer was for an injunction to restrain Hicker-son from selling the slaves, and for general relief.
    The injunction was awarded.
    Elizabeth Hickerson was no party to this bill. The defendant Hosea Hickerson answered, denying that the deed to Helm was upon valuable consideration, insisting that it was upon a consideration merely voluntary, and that the deed was in fact fraudulent, and made with the express intention of defeating the recovery of the debt due him. Marshall Hickerson, he said, had died suddenly while on a visit to a distant part of the union, and left his papers in great confusion, and the respondent had to encounter almost insuperable difficulties in the settlement of said estate. It was impossible, he thought, for any person, in the present state of the suit brought by the legatees, to form any thing like a correct estimate of the final result of that case. The whole amount of the debt due from the said Elizabeth might, and in all probability would, be required for the payment of debts. And he insisted that the regular collection of the assets of Joseph Hickerson’s estate ought not to be interfered with. What was said in the 634 *bill in relation to King was noticed in the answer, and the defendant’s conduct explained.
    The deposition of Joseph Thompson was taken in 1835, to prove the understanding with mrs. Hickerson at the time the bond was given. He recollected, he said, “that she was called on by the executor for security, and that Daniel Hickerson was applied to, to unite with mrs. Hickerson in the bond. Mr. Hickerson seemed rather to decline binding himself, saying that there might be some difficulty; but the difficulty was overcome by the assurance given him by the executor, that there was no sort of danger of his having any thing to pay for the widow, that the purchases made by her would not amount to any thing like the portion of the estate she was entitled to. ”
    Rodham Eskridge and Meredith Eskridge deposed, that after the injunction, Helm made sale of Lucinda and John.
    There were many depositions in regard to the consideration of the deed to Helm, and evidence also as to the value of King at the time he was sold by the sheriff; some of the witnesses for the plaintiff considering him worth 500 dollars, and others for the defendant not placing him at a higher value than 325 dollars.
    
      The suit of the legatees, which was originally brought in the superior court of chancery at Fredericksburg, and afterwards transferred to the circuit court of Spotsyl-vania, was removed by consent, in 1837, to the circuit court of Fauquier; and in February 1839, mrs. Hickerson having died, the same was revived against Lina Helm as her administrator.
    In this suit there were filed as exhibits, the appraisement of the estate of Joseph Hickerson on the 9th of November 1815, amounting to 3136 dollars 64 cents, and the account of sales made on that and the next day, amounting to 1830 dollars 5 635 cents. This account *of sales did not include the slaves, the names and values of which were stated in the appraisement as follows: negro man Admiral 60 dollars, negro man Jack'450 dollars, negro boy Willis 400 dollars, negro woman Flora 300 dollars, negro girl Nelly 250 dollars, negro boy Landon 300 dollars, negro boy Alexander 300 dollars. Of these, Flora and Landon were specifically bequeathed by the testator. Nelly and Alexander were sold in April 1816 by the sheriff of Fauquier, under an execution against the estate of Joseph Hickerson, and purchased at the price of 544 dollars 50 cents by Marshall Hickerson. Jack and Willis were sold by Marshall Hickerson as executor, but the prices for which he sold them did not appear by any thing before the commissioner. And the commissioner, in stating the account of the said executor, charged him in 1816 with the sum for which Nelly and Alexander were sold, and with the appraised value of Jack and Willis.
    So stating the account, the commissioner reported a balance due from Marshall Hick-erson as executor of 4483 dollars 12 cents, with interest on 1909 dollars 71 cents part thereof from the first of January 1839, chargeable with the payment of a balance found due to Hosea Hickerson as administrator de bonis non of Joseph Hickerson (on the settlement of his administration account) of 652 dollars 65 cents, with interest on 537 dollars 2 cents part thereof from the first of January 1839 till paid, and chargeable also with a balance of a debt of Bazil Gordon. The commissioner also settled the account of Hosea Hickerson as administrator of Marshall Hickerson, and reported a balance due from the said Hosea on this account. The commissioner’s report was returned on the 2d of May 1839; and on the 10th of that month Hosea Hick-erson paid to Bazil Gordon the balance due him, amounting ■ to 460 dollars 33 cents.
    636 *There was an exception by Hosea Hickerson to the report, upon the ground that the execution under which Nelly and Alexander were sold was for more than the amount of sales. And the court, on the 20th of May 1839, recommitted the report to the commissioner, for him to make a statement shewing how the account would stand if Hosea Hickerson Should now pay the balance due on the said execution. This was the last order in the case of Shumate v. Hickerson.
    On the same 20th of May 1839, the court made an order in the case of Helm v. Hick-erson, directing the commissioner to ascertain mrs. Hickerson’s share of the perishable estate of Joseph Hickerson, and add thereto interest on one third of the value of his slaves. The. court also directed the said commissioner to credit her distributive share with the execution injoined, and to credit the execution with 500 dollars, which, in the opinion of the court, was. the value of King at the time of sale.
    The commissioner made a report whereby it appeared, that omitting the slaves, and charging Marshall Hickerson with the proceeds of all the other personalty (including mrs. Hickerson’s own purchases) as if the amount had been received by the-executor, the sum in his hands, as of the first of January 1839, was 1358 dollars 8. cents; and then deducting what was due to-Hosea Hickerson, and the sum paid by him to Bazil Gordon, the balance was only 254 dollars 93 cents, of which mrs. Hickerson’s. third was 84 dollars 98 cents on the said first of January 1839. Then, after stating the slaves to be of the value of 1994 dollars. 50 cents, one third whereof was 664 dollars 83 cents, and the annual interest on that third 39 dollars 89 cents, he made a statement whereby it appeared, that charging mrs. Hickerson with 1588 dollars 72 cents the amount of the judgment with interest to the 27th of May 1833, when King was sold, and crediting her on account of 637 *King with 500 dollars, less 15 dollars 50 cents the sheriff’s commissions on 325 dollars, and also crediting her with the said annual interest ' of 39 dollars 89 cents from the first of January 1816 to the 17th of February 1838, when she died, and: likewise crediting the said 84 dollars 98 cents, a balance still remained due upon the judgment of 261 dollars 88 cents with interest from the 1st of January 1839. The' plaintiff excepted to this report, and at his instance the commissioner made a special statement, upon the principle of allowing, in lieu of interest on one third of the value of the slaves, an annual hire of 50 dollars. The first sum of 50 dollars was credited on the first of January 1817, and thereafter annually, whereby, the principal of the judgment on which interest was calculated was annually diminished; and on the first of January 1837, there was, according to this statement, a balance due mrs. Hicker-son of 16 dollars and 90 cents. The statement was continued to the first of January 1839, and'shewed'on that day a balance due her of 163 dollars 15 cents, with interest on 158 dollars 13 cents part thereof from that day till paid. In the statement so continued, mrs. Hickerson was credited with 2 dollars and 2 cents for interest on the 16 dollars and 90 cents on the 1st of January 1839, and 3 dollars for interest on the hires of 1837 to the same time, making 5 dollars and 2 cents as the amount of interest on conjectural hires during the last two years. As bearing upon this statement, it is proper to mention that according to the report of the commissioner in Shumate v. Hickerson, the executor had not, at the time of the sale of the two slaves under execution, other assets with which he could have satisfied that execution.
    On the 19th of October 1839 the case of Helm v. Hickerson came on to be heard upon the commissioner’s report in that case, and the record in the case of Shu-mate v. Hickerson. Whereupon the 638 court, approving of '"'that statement in the report wherein hires were allowed, confirmed the same, and decreed that the injunction be made perpetual, and that the defendant pay to the plaintiff 163 dollars IS cents, with interest on 158 dollars 13 cents part thereof from the 1st of January 1839 till paid, and the costs.
    From this decree, on the petition of the defendant Hosea Hickerson, an appeal was allowed.
    The cause was argued by Howard and Robinson for the appellant, and by Seddon and Morson for the appellee.
    The question most elaborately discussed was whether the deed from mrs. Hickerson to Hina Helm was made with intent to defraud creditors: but upon this, and indeed upon some other points, a report of the argument is deemed unnecessary. The following notice is confined to the principles of law more paticu-larly involved in the decision.
    Howard for appellant
    The enquiry which devolved upon the court below was whether the slaves Lucinda and Jofin could properly be sold under the execution. And when the court ascertained that the deed was upon a consideration merely voluntary, it followed that the deed was void as to creditors, and that the slaves might legally be sold.
    Under the decision in Pulliam v. Winston &c., 5 Leigh 324, even mrs. Hickerson herself would not be allowed to tie up the judgment against her, until complicated accounts of administration should be settled, in order to discover whether there would be a distributable surplus. But here the debtor against whom the judgment is rendered asks no injunction to it, and in no way alleges that the debt is not due. The objection to enforcing the judgment is raised by one who, after the rendition of the judgment, received a conveyance from the judgment debtor of a party 639 of her property. Surely *this enquiry cannot be gone into in a suit standing merely between the judgment creditor and the voluntary grantee. The claim of the judgment debtor as distributee can never be used as a setoff against the judgment, in a suit to which the judgment debtor is no party. Nor can the extent of such setoff be ascertained, except by a settlement of the administration account in a suit to which all the distributees are parties.
    If, however, it were competent in this suit to set off mrs. Hickerson’s claim as' distributee against the judgment, the mode in which this has been done is altogether erroneous. The obvious course was to consider the judgment creditor as entitled ta the amount of his judgment, deducting the 325 dollars for which the slave King was sold under the execution, less 15 dollars and 50 cents for commissions. If damage resulted from the seizure and sale of King,, the remedy for that damage is by an action on the indemnifying bond; for, the sale having taken place, it is not the province of equity to assess damages. Robertson v. Hogsheads, 3 Leigh 667; Mayo v. Winfree, 2 Leigh 370. But no claim to such damages is asserted by the bill; and there is, in truth, no right to recover damages either at law or in equity. Regarding the plaintiff as a claimant under a voluntary deed, he can have no greater right in this respect than his grantor; and she clearly can claim credit only for the net proceeds of the slave.
    The special statement is wholly unsus-tained by evidence, and the hires entirely conjectural. If it had been right to allow the conjectural sum of 50 dollars a year, it would have been wrong to allow interest upon such conjectural hires. Shields adm’r &c. v. Anderson &c., 3 Leigh 729; Roper &c. v. Wren &c., 6 Leigh 38. Here the slaves had been disposed of, and no hires could have been received. [Stanard, J. It has been settled as a general rule, that the widow is to have the use for life of one third of the money for which the slaves 640 sold. ^Godwin’s adm’r v. Godwin’s adm’x &c., 4 Leigh 410.] The special statement is wrong not only as to the interest but as to the principal. And in using it as sufficient ground for perpetuating the injunction, the court manifestly erred.
    Then there is a decree in favour of the plaintiff for the balance appearing by that special statement. In a suit between Lina Helm plaintiff and Hosea Hickerson defendant, that balance is stated specially as due to mrs. Hickerson, and the money thus specialty stated to be due to her is decreed to be paid to Lina Helm.
    Seddon and Morson for appellee.
    The matter in regard to King is set forth in the bill, and comes within the scope of the general prayer. The defendant has answered the allegations as to this matter. Smith &c. v. Smith &c., 4 Rand. 95; 2 Rob. Pract. 293. And testimony has been taken in regard to it. Under such circumstances the act of B'ebruary 27, 1828 forbids a reversal of the decree for any informality in the bill. Sess. Acts of 1827-8, p. 20, ch. 25, | 1; Suppl. to Rev. Code p. 125. In the court below, no objection was made that the matter was not put in issue: and the appellant is deprived of the right to make the objection, by failing to urge it at the proper time. 2 Rob. Pract. 434. No party is allowed to surprise or mislead his adversary. Had the objection been earlier made, the appellee might have brought an action at law. But if an action were now brought, the statute of limitations might be pleaded; and the defendant would thus take advantage of his own wrong.
    Then as to the jurisdiction. This is a suit, not for damages, but for King or his value. It is on the ground that the sale had been made in an oppressive manner, and ought to be set aside. But even if viewed as a suit for damages, yet as the plaintiff has been obliged to come into equity to injoin the sale of two other 641 slaves ^claimed under the same deed, the court, on the principle of preventing multiplicity of suits, will take jurisdiction of the whole case, and decide it as to King as weil as the two other slaves. Where the same right which entitles a party to an injunction against future waste entitles him to compensation for past waste, the court of equity will give relief as to both. The court, having jurisdiction of the suit for one purpose, goes on and ends the controversy between the parties. This principle is acted on in many cases. 1 Story’s Equity, $ 64 a., p. 82-86. ' The existence of a legal remedy does not, under all circumstances, prevent redress in equity. Randolph v. Randolph &c., 3 Munf. 99; Wilson & Trent v. Butler &c., 3 Munf. 559. Here it was necessary to take notice of the value of the slave, in determining the amount of the credit on account of his being sold.
    The case of Pulliam v. Winston &c. is very different from this case, in which there had been a failure for 11 years to settle the executorial accounts on Joseph Hickerson’s estate before suit was brought' by the legatees, and then every thing was done to delay a settlement, that the process of the court would allow. But even in Pulliam v. Winston &c. it is admitted that the offset will be allowed if the executor agreed to allow it. And here the fact of such agreement is deposed to by a witness whose evidence is sustained by all the circumstances. In that case, too, the objection was taken in the court below, and the injunction dissolved on motion ; while here, the case having been proceeded in to a decree, and the account taken, the objection is stripped of its force. Scott & wife v. Halliday &c., S Munf. 103; Sampson v. Mitchell’s ex’or, 5 Munf. 175. On these grounds, mrs. Hicker-son herself might insist on the setoff. But even if she could not, still Helm may insist on its being allowed. It is always competent for the volunteer to require the 642 creditor to shew *that he has a debt. He may have an account to ascertain its amount, — to ascertain how much is liable to be setoff by a fund in the creditor’s hands, and amongst other things the amount to be credited on the judgment.
    The rule settled in Godwin’s adm’r v. Godwin’s adm’x &c. may be a general one, but it is not inflexible. It would • not be applied in a case of fraud. Here the executor has been guilty of such negligence that every presumption ought to be made against him. His conduct makes it necessary to resort to conjecture of price or conjecture of hire. And his representative can have no right to insist on the former instead of the latter. The interest allowed on conjectural hires amounts only to a few dollars, and there is a blunder of 15 dollars and 50 cents the other way in regard to commissions.
    It is objected, however, that mrs. Hicker-son is not a party to this suit. Though the debt could not be ascertained so as to bind her, it could be ascertained so as to bind the parties to this suit. There are various cases in which parties may sue singly; for example, creditors may sue singly to get a fund out of an executor’s hands. The case of Moore’s adm’r v. George’s adm’r, 10 Heigh 228, shews that this court will not extend the objection for want of parties. Besides, the objection was not taken in the court below, and the authorities shew that such objection may be waived. Opinion of Tucker, P., in S. C. Mayo v. Murchie, 3 Munf. 358. The question is not one of jurisdiction, but a matter growing out of a rule of convenience. Calvert on Parties, p. 19,'20, note. The personal representative of a decedent, not party to the suit, is sometimes brought before the master on taking accounts. Story’s Eq. PI. p. 96, i 96, note 1. Mrs. Hickerson was a party in the case of Shumate v. Hickerson, and the accounts have been taken in a case to which all the distributees are parties. Why 643 make her *a party in ' this? The record of that case also shews that she died while the case was pending, and that it was revived against Hina Helm as her administrator. The decree then in this case is substantially right, and the informality, if any, arising out of the fact that mrs. Hickerson’s administrator was not a party to the suit as such, is cured by the act of Eebruary 27, 1828, Sess. Acts of 1827-8, p. 20, ch. 25, % 1; Suppl. to Rev. Code p. 125.
    Robinson in reply.
    The bill, fairly understood, makes no case in respect to King. And if it had sought relief in respect to him, there is no ground on which the jurisdiction could be sustained. Is it to be maintained that merely because an injunction was awarded on the former bill, the sale was not to be made at the time appointed by law, but was to be postponed in order that the injunction bond might be given? If a court of equity could interfere on any such ground, the interference would properly be under that bill on which the injunction was awarded: and that caséis not before this court. But the sale could not be treated as improperly made, either on that bill or on this. Clarke v. Hoomes’s ex’ors &c., 2 Hen. &Munf. 23; Stratford v. Twynam, Jacob 418; 4 Cond. Eng. Ch. Rep. 193. If the plaintiff sought, by force of his deed to recover the value of the slave, his remedy was by an action on the indemnifying bond: if he sought to recover the specific property, his proper course was to bring an action of detinue against the purchaser. A legal title being claimed on the one hand under execution against the debtor, and a paramount title on the other under the debtor’s deed, a court of law was obviously the proper tribunal to determine which of these titles was the best.
    Is it clear that it was proper for a court of equity to exercise jurisdiction as to Lucinda and John? As to them, the court had no jurisdiction to injoin the sale 644 ^except upon the ground that slaves are considered prima facie of peculiar value to their owners. Allen v. E'reeland, 3 Rand. 170; Randolph v. Randolph, 6 Rand. 194. Does that presumption exist here, or is it repelled? In Allen v. E'reeland, judge Carr takes the distinction between family slaves and those recently purchased by the plaintiff; and judge Green said, the appellant there did not appear to have seen the slaves before he purchased them. In Randolph v. Randolph, the judges cite, on the one hand, cases of peculiar attachment, and, on the other, cases of large slaveholders, where the slave is not even personally known, or cases in which the slave is a subject of traffic. What are the circumstances here? The complainant never had the slaves till the spring of 1832. He obtained them then, not by a purchase of specific slaves on account of any peculiar qualities, but by a transfer from mrs. Hickerson of her interest in a particular estate, in the division of which these slaves were afterwards allotted as her portion. To him it was the same whether he obtained these or other slaves, or other propert3r of equal value. There was no peculiar affection between the master and these particular slaves, such as made him desire to retain them in specie. This is evidence from the fact deposed to by Meredith and Rodham Eskridge, that immediately upon his-being restored to possession by the injunction, he endeavoured to sell them, and as soon as practicable did sell them.
    On the other side it is contended, that though the deed shall be held to be voluntary, the judgment is to be reduced by whatever amount may be due mrs. Hicker-son asa distributee of her husband’s estate. This ground is taken in a suit to which she is no party, and in which, no matter what the view of the court may be upon the accounts, it can make no decree perpetuating the injunction to the judgment, either in whole or in part. But suppose her 645 grantee may require all 'x'that she could have required, if she had made no assignment, and were the plaintiff in the bill; Pulliam v. Winston &c., S Leigh 324, settles that she cannot be received in equity to make any setoff of this nature. It is however insisted that this case is an exception to the general rule, because here the executor agreed that any claim which mrs. Hickerson had against the estate might be discounted. To establish such agreement, an expression of the executor is deposed to by a witness 20 years after the transaction. The act of the executor in taking the bond and security is far stronger than such words as are here deposed to. If he was satisfied that her portion of the estate would be equal to the amount of the bond, and agreed that the one should be set off against the other, why take bond and security at all? His taking it is at least evidence that it was not certain her portion would be sufficient. It would be contrary to well established principles to allow the force of the bond to be destroyed by parol evidence of this uncertain character. Where an agreement to set off is relied on, it should be an agreement at a subsequent time, after there has been opportunity to clear up the doubt existing at the time of taking the bond. The decree directing an enquiry to ascertain mrs. Hickerson’s share as distributeee was then improper.
    But if it was proper to go into any such account, the principle upon which it was directed to be stated in regard-to King is clearly erroneous. The report made under the court’s direction establishes the impropriety of its direction. At the time of the sale of King, the amount of the judgment was 1588 dollars 72 cents, and if from this there be deducted 678 dollars 13 cents for the annual interest from the first of January 1816 to the first of January 1833 on one third of the value of the slaves sold, there was yet due on the judgment, when King was sold, more than 900 dollars. If 646 *credit be also given for a third of the amount of sales to mrs. Hickerson herself (though remaining unpaid), as well as of all other personal estate, there was still due upon the judgment at that time more than 300 dollars, ünder these circumstances, what conceivable reason can there be for giving credit on account of the sale of King, for more than he produced at the sheriff’s sale?
    Then as to the question whether interest on a third of the value of the slaves sold shall be allowed, or conjectural hires. Neither in the bill of the legatees nor in this bill is there any allegation that the slaves of Joseph Hickerson were sold improperly. Nor is there any thing whatever to take this case out of the general principle established in Godwin’s adm’r v. God-win’s adm’x &c., 4 Leigh 410. Charging Marshall Hickerson with the amount of mrs. Hickerson’s bond, and leaving out the sales of slaves, his account was about even. He had then either to remain in advance to the estate the amount of the debt due by mrs. Hickerson, or to get from her that debt, or to sell slaves. He was under no obligation to remain in advance: she did not pay the debt: and he sold slaves. When it has been settled as a general rule, that though a widow’s share of slaves be unnecessarily sold to pay debts, she is to be compensated by interest on one third of the slaves, what is there in this case to authorize a departure from that rule? So far from being a stronger case in favour of the widow than the case generally is, it is a weaker one. Eor it was necessary to sell the slaves unless she paid her debt. And it is not for her whose default has been the cause of this, to say that the burthen of the executor shall be increased, because he has done that which her default made necessary. : : ¡
    But the error did not stop here. Having settled the principle, it was at least proper, when there was no sort of evidence to shew what hire would be fair, to 647 *refer it to a commissioner to report on this subject. Ail enquiry of this sort was passed by, and the special statement acted upon, although that statement was not the view of the commissioner upon the evidence, but the mere ex parte suggestion of counsel. ■ i i : i ■ : . ■
    That ex parte statement is not only without evidence to shew that SO dollars a year was a fair hire, but is wrong upon its face in allowing interest on such conjectural hires. It may appear as if the interest so allowed were only S dollars 2 cents, but it is in fact much more. If the interest on the judgment had been calculated to 1839, and then a deduction made, as of that date, of the conjectural hires from 1816 to 1839, there would be no interest on such hires. But the conjectural hires are credited at the end of each year from 1816 to 1839, and the effect is to allow interest to the extent to which the creditor loses interest by having his principal diminished before 1839. . • , i
    
      
      See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5. Gratt. 6.
    
   BALDWIN, J.

The merits of this cause turn upon the question whether the interest of mrs. Hickerson in the personal estate of her husband Joseph Hickerson deceased (with the credit to which she is entitled for her property sold under execution) is sufficient, and properly applicable, to extinguish the debt contracted by her for purchases at the sale made by Marshall Hickerson his executor. This involves an enquiry into the principles upon which the accounts have been settled by the master commissioner, under the order of the circuit court. The basis of the settlement is a report made by the same master commissioner, in another suit of Shumate &c. v. Hickerson &c. then depending in the same court, of several accounts directed by interlocutory decrees in that suit; to wit, an account of the administration of Marshall Hickerson upon the estate of Joseph Hickerson deceased; another, of the administration de bonis non of Hosea Hickerson upon the estate of ^Joseph Hickerson deceased; and a third, of the administration of Hosea Hickerson upon the estate of Marshall Hickerson deceased. The result of that report is a balance against Marshall Hickerson as executor of Joseph Hickerson ; a balance in favour of Hosea Hickerson as administrator de bonis non of Joseph Hick-erson; and a balance against him as administrator of Marshall Hickerson. It was upon the basis of the accounts thus reported, that the master commissioner proceeded in the present cause to ascertain the aforesaid interest of mrs. Hickerson, who was a party in the case of Shumate &c. v. Hickerson &c. but not in the present suit. > Mrs. Hickerson being entitled absolutely to : a distributive share of one third in the residue of her husband’s personal estate ex-elusive of the slaves, after payment of his debts, and to one third of the slaves as her dower for life only, the commissioner restated the accounts, so as to show in the first place a balance against Marshall Hick-erson executor of Joseph Hickerson, exclusive of the slaves, of 2S4 dollars 93 cents, after deducting the balance due to Hosea Hickerson as administrator de bonis non of Joseph Hickerson; the one third of which balance, to wit, 84 dollars 98 cents, he reported in favour of mrs. Hickerson. He then went on to ascertain what she was-further entitled to, on account.of her interest in the slaves. None of these were, forthcoming. It appears from the appraisement that there were seven. Two of them were sold under execution : two were specifically bequeathed by the testator, and the presumption is were delivered over to the legatees: two others were sold by the executor Marshall Hickerson, but when, or for what prices, does not appear: the record furnishes no information of the disposition made of the seventh, and the probability is that he was old and of little or no value. The widow, for whom no provision was made by the will, claimed that made for her by law. Her dower in the slaves being one third for life, and she *having been deprived thereof by the conduct of the executor, compénsation could be made to her therefor in but one of two modes; to wit, by allowing her the annual interest during her life, on one third of the value of the slaves, or by allowing one third of the annual estimated hires. The commissioner made statements in both ways, debiting the widow with the judgment against her for purchases at the sale, and crediting her, in the first, with one third annually of the interest on the value of the slaves, and in the second, with one third annually of the estimated hires; and in both, with her distributive share of the other personal estate, and with the actual value of the slave King (acquired from her father’s estate and sold under the first execution upon said judgment) minus the sheriff’s commission upon the sale. The result of the first statement was a balance against the widow, of 261 dollars 88 cents with interest from the 1st of January 1839; and of the second a balance in her favour, of 163 dollars-15 cents with interest on 158 dollars 13 cents thereof from the same date. This last statement was adopted by the circuit court, and the decree rendered against the defendant Hosea Hickerson individually ; doubtless because there were ample assets in his hands as administrator of Marshall Hickerson’s estate, for payment of the amount thus ascertained to be due to the widow and chargeable against that estate, after the extinguishment of the judgment by the application of her credits.

> : If this adjustment of the accounts between Rlizabeth Hickerson and the estate of her deceased husband be correct, it relieves us from the necessity of considering the questions so elaborately discussed at the bar, arising out of the allegation of the defendant that the conveyance to the plaintiff Helm, by Elizabeth Hickerson, of her interest in her father’s estate, was voluntary and fraudulent as regards her creditors; inasmuch as it *will thus appear that the defendant has no right in a court of equity to occupy that relation towards her. And this brings us to the consideration of the objections to that adjustment urged on the part of the appellant.

In the hrst place, it is contended that the whole adjustment is wrong, on the ground that a court of equity ought not to interpose by way of injunction, to ascertain and set off a distributive interest in an estate, against a debt contracted by the dis-tributee for purchases from the executor of property belonging to the estate. This is certainly correct as a general proposition, and is well established by the authorities cited for the appellant. Such a practice would occasion much confusion and injustice, by obstructing and perplexing the executor in the administration of the assets, exposing him to the danger of devastavits, and subjecting creditors of the estate to injurious delays. The rule however is not free from exception, and the reasons upon which it is founded are inapplicable to the case before us. All the difficulties which have occurred in the administration and distribution of this estate are attributable to the misconduct of Marshall Hickerson the executor, and the defendant Hosea Hickerson, his administrator and successor. There has been the most unreasonable delay in the settlement of the administration accounts. No step towards it was taken during the six years which elapsed from the time of the executor’s qualification in 1815 until his death in 1821. In August 1821, the defendant Hosea Hickerson qualified as administrator of Marshall Hickerson, and as administrator de bonis non with the will annexed of Joseph Hickerson; but instead of settling up the administration accounts of himself and his predecessor in a reasonable time, he failed to do so for a period of nearly twelve years prior to the institution of this suit in July 1833. Nor could he be brought to such settlement, *in the suit instituted against him for that purpose in 1827, by Shumate and other dis-tributees of Joseph Hickerson, until coerced by attachments for his contempt in disobeying orders of the court in that suit. Thus a period of eighteen years prior to the institution of this suit was suffered by the personal representatives of the estate in question to elapse without a settlement of their administration accounts. This delay, connected with the, representation made by Marshall Hickerson at the time of the ex-ecutorial sale, that there was no danger in becoming the widow’s surety for the amount of the purchases made by her, inasmuch as it would fall far short of her distributive interest in- the estate, was well calculated to lull her into security, and inspire the belief that payment of her bond would not be exacted, unless shewn to be necessary by a settlement of the administration accounts. And if the judgment recovered against her in 1827 had a tendency to remove this impression, it could not have suggested the necessity of a suit on her part for the recovery of her distributive share; inasmuch as the suit of Shumate &c. v. Hickerson &c. brought by the other distributees in 1827, to which she was a party, would have accomplished that object, but for the continued default of the defendant Hosea Hickerson; whose conduct was extremely unjust and oppressive in suing out execution against her, in 1833, upon the judgment, while in contempt of the orders of court requiring a settlement of the administration accounts. I think, under the circumstances, it was entirely proper that he should be restrained by injunction from proceeding upon the execution, until he should shew, by a full and fair settlement of the estate, that the purposes of justice required it: that if he could have been subjected at that late period to any inconvenience or hazard, it was far from arising out of tie due discharge of his duties: and that any creditors who *had so long postponed the prosecution of their demands against the estate would more probably be benefited than injured by the aid of the court in sifting the accounts of the delinquent fiduciaries.

In the next place, it is urged that the compensation to the widow for her dower right in the slaves ought to have been the interest on the value, instead of estimated hires. I am at a loss to perceive any principle upon which that pretension can be sustained. The widow was entitled to her dower interest in kind; an important privilege, of which she could not be lawfully deprived, unless by a sale of the slaves rendered necessary for payment of the debts by the inadequacy of the other personal assets. In regard to the slaves specifically bequeathed, and supposed to have been surrendered to the legatees, there is not a shadow of apology for disregarding the dower interest of the widow. As to those sold by the executor, it has not been shewn when, or for what amount, or under what circumstances they were sold; and on the other hand it is apparent from the master commissioner’s report, that there was no deficiency of the other personal assets, a balance having been reported against him on that account. The only colour for a sale of slaves is as respects those sold under execution in April 1816, when it may be supposed that the fund arising from the executorial sale of the perishable property belonging to the estate was not available, the bonds therefor not falling due until November following. It certainly would be unreasonable to charge an executor with the injurious consequences arising from a forced sale of slaves under execution, before it was in his power to obtain from the assets the means of payment: but that is not the question here. The slaves were purchased in by the executor himself; and, under the circumstances, he ought to be treated in relation thereto as the trustee of the estate. The sale moneys of the personal estate were to fall due at *no distant period. It was the duty of the executor to do the best he could for the preservation of the interests confided to his care; and the plea of an inevitable prejudice cannot avail him, when we find that he had the means of becoming the purchaser. It ought to be presumed that he raised the money upon the credit of the estate, or that he advanced it himself upon that security; a presumption working no injustice; for if he gave the full value, he is reimbursed by a credit for the purchase money, and if he did not, it would be of dangerous consequence to permit him so to speculate upon the temporary necessities of the estate.

The credit therefore for hires, instead of interest, is correct in principle, and is not in conflict, as supposed, with the decision of this court in Godwin’s adm’r v. Godwin’s adm’r &c., 4 Leigh 410. The question there was as to the prospective allowance to be made to a widow out of the proceeds of slaves, sold by the executor under an innocent misapprehension that the situation of the estate required the sale for the payment of debts; and it was held that she should receive one third of the purchase money, to be enjoyed by her during her life, and then returned to the estate; an allowance considered by the court more equitable than a commutation for a gross sum, the proper amount of which it would be difficult to ascertain by calculations, involving, as they must, an estimate of complicated hazards. But in the case before us, the question is in regard to the retributive compensation to be made for a dower right, from the enjoyment óf which the widow was debarred during her life by the gross injustice of the executor. That the allowance is of estimated hires, from imperfect materials, is the fault of the executor himself, who has furnished no account or evidence in relation to the slaves, whether of hires or sales; in consequence of which the commissioner has been compelled to found his estimate chiefly upon the appraised * value of the slaves, most probably to the detriment of the widow; and upon that basis, if he has committed an error, it is obviously not to the prejudice of the executor. His allowance of interest on estimated hires was for but a brief period and on a small balance, and not excepted to by the defendant. Such minute errors in a commissioner’s report, however obvious, especially when unexcepted to, are not proper for the consideration of an appellate court; as they would require, from its repugnance to the reversal of the decree for a small matter, a reexamination, and it may be a restatement of the whole account, in order to ascertain whether there may not be errors to an equal or greater amount on the other side.

Again, the appellant insists that the proper credit to the widow on account of the slave King, sold under the first execution against her, is the net proceeds of the sale, and nothing more; that if his actual value at the time was 500 dollars, (which is denied, though I think proved) still the credit for that sum, minus the sheriff’s commission on the price obtained, is wrong in principle; and that to allow it, is in effect to' assess damages in a court of equity for proceeding at law under process of execution. This objection would, I think, be well founded if the result of the credit were an actual loss to the defendant, as would be the case if the property had been purchased by a stranger. But the defendant, having become the purchaser himself, is in fact subjected to no loss. He is merely denied an unrighteous gain, arising out of a sacrifice of the property occasioned by his own iniquitous and oppressive conduct. The question necessarily arose, upon the *facts stated in the bill, in the adjustment of the matters of account involved in the controversy; and was not at all cognizable at law. The defendant had an undoubted legal right to enforce his judgment by process of execution; but his exercise of it under the circumstances, not only to the prejudice of his adversary but to his own individual profit, could not be countenanced in a court of equity. The mode of relief was the only one that could be adopted, unless the defendant had been required to surrender the property, which it does not appear that he offered, nor that it was still in his power to do. The question was merely as to the measure of relief, that is to say, the proper amount of the credit; and that fell within the province and discretion of the court, in the exercise of its equitable jurisdiction over the whole subject, of which it was an inseparable incident.

There is much plausibility in the argument founded upon the master commissioner’s report, that at the time the defendant’s execution was levied upon King, the widow was still in arrear on account of her purchases at the executorial sale, to a greater amount than the value of the property levied on. I think it not improbable that such would be the result of a statement based upon the materials furnished by the report, though none has been made by the commissioner with a view to that enquiry. But its concession does not relieve the defendant from the impropriety and injustice of proceeding to enforce the whole amount of his judgment, without giving the widow the smallest- credit on account of her interest in the estate, every particle of which had been withheld from her for a period of eighteen years, unless upon the supposition of an agreement that the payment of her bond was to await a settlement of the estate. After the assurance given by his predecessor at the time of the widow’s purchases, and the great laches of both in regard to their administration ^accounts, it was not for him to decide, without a settlement, and in contempt of the orders of court requiring a settlement, upon the question of the widow’s indebtedness. Nor can the materials furnished by the report be relied upon as shewing the balance due, on one side or the other, at any given period of time prior to the final adjustment; for they do not consist of accounts actually kept, but of substitutes therefor, resorted to for the purpose of preventing a failure of justice.

'Thus it seems to me, that the decree of the circuit court was founded upon a correct adjustment of the matters of account involved in the controversy, and that mrs. Hickerson, under the circumstances, was entitled to the interposition of the court to restrain the defendant from further proceeding upon his judgment at law. I can perceive no good reason why the actual plaintiff, as her grantee or donee, should be excluded from the benefit of her equity, so far as to prevent the slaves embraced in her conveyance to him from being subjected to the defendant’s process of execution against her. But I think it clear that she ought to have been made a party in the cause, inasmuch as she was directly interested in the settlement of the accounts, and the plaintiff Helm had no interest therein, except for the purpose of shewing that the defendant’s demand was extinguished. She died however in the progress of the suit, and Helm became her administrator, and as such the proper representative of her interests. If she had been a defendant in the cause, he could not have revived it against himself as her administrator. Her death and his administration were judicially known to the court, being disclosed by the record in the case of Shumate v. Hickerson, made part of the record in the present suit, and referred to in the decrees. The omission to state these facts on the order book, or by a supplemental bill, was a mere informality, for which *it would be improper to reverse the decree, especially since the statute of the 27th of February 1828, Suppl. to Hev. Code, p. 125, which declares that no “decree of a court of equity shall be reversed for informality in the proceedings, where the parties have proceeded to take their depositions, and it appears to the court that there has been a full and fair hearing upon the merits, and that substantial justice has been done between the parties. ’ ’ And this gives the proper answer to the appellant’s objection that the balance found due to the widow is decreed to be paid to the plaintiff Helm. It will not be improper, however, for preventing any possible future misconstruction, to amend the decree in this particular, by directing the payment to be made to Helm in his character of administrator. A further amendment of the decree will also be proper, to supply its omission to require a refunding bond in regard to any future demands against the estate.

STANARD, J.

The appellee sought the aid of a court of equity by injunction to the sale of slaves on which an execution had been levied as the property of Elizabeth Hickerson, on the ground that the slaves were his property in virtue of a conveyance from the said Elisabeth. He claims that under that conveyance he became the owner of the slaves, either as a bona fide purchaser for valuable consideration, or as a donee. If he sustained his title as bona fide purchaser for valuable consideration, the only question that would arise is that respecting the jurisdiction of the court of equity to interpose its protection by way of injunction to the sale. The question of jurisdiction must, I think, have been resolved, on the authority of many decisions of this court, in favour of the appellee; and being so resolved, the relief that a court of equity should give would be the perpetuation of the injunction to the sale of the slaves which were under execution at the time the injunction *was awarded. Such relief would be granted, irrespective of any question concerning the fact or amount of indebtedness from Elizabeth Hickerson to the claimant under the execution, and consequently all enquiry into that matter would be superfluous, and foreign to the question of the relief to which the appellee was entitled. Viewing the case under this aspect, the indebtedness of Elizabeth Hickerson to the claimant under the execution would not restrict, nor would the absence of such indebtedness enlarge the relief proper to be given the appellee. Under this aspect of the case the appellee, would have no colour of right to resort to a court of equity to recover the slave that had been taken and sold under a previous execution. That taking and sale would be an invasion of his right of property for which he would have a plain and adequate remedy at law, and for which he could no more obtain redress in equity, than he could for any other trespass on or dispossession of his personal property, for which the law had provided the remedy of an action of trespass, trover or detinue.

In the relief that has been given by the decree in this case, the court below has not regarded the appellee as a bona fide purchaser for valuable consideration, but has (and I think properly) regarded the conveyance to him from Elizabeth Hickerson as voluntary: and with this element in the case many questions arise as to the propriety of granting in equity any relief, and if any, the nature and extent of that relief.

Viewing the conveyance from Elizabeth Hickerson to the appellee as voluntary, the questions are, Ought the enforcement of the judgment at law against Elizabeth Hickerson to be injoined until the extent of her interests as distributee and dowress in the estate of her deceased husband, for which Marshall Hickerson was responsible, should be liquidated and adjusted, with a view to a setoff of the amount thereof against the ^judgment? And has the appellee a right to have those interests applied in reduction of the judgment, for the protection of the property he claims under the voluntary conveyance?

I concur with my brother Baldwin in the opinion, that under the circumstances of this case, it was proper to make it an exception to the rule (which-', as a general one, has my hearty approbation) that denies to a creditor or distributee the aid of a court of equity to intercept by injunction the collection of the assets by the executor or administrator, especially those arising from the sales of the executor or administrator, until the administration accounts are adjusted, with the view that the debt or distributive share may be set off; unless the title to such setoff be founded on the express agreement of the executor or administrator. There is evidence, direct and inferential, tending strongly to prove that such agreement was made in this case. This, coupled with the long continued delinquency of the executor and his representative to settle the administration account of the estate of Joseph Hickerson, and the delays to which the suit brought by the distributees of Joseph Hickerson to have that account settled has been subjected, mainly by the neglect and contumacy of the appellant the representative of the executor, justify the court in making this case an exception to the general rule. If Elizabeth Hickerson had not conveyed to the appellee, but still retained title to the slaves on which the execution was levied, she would be entitled to protection by injunction until the amount of her claim on Marshall Hickerson as the executor of her husband should be ascertained, and when ascertained, to set off the same against the judgment. The appellee, claiming under her conveyance, had as strong a claim to this equitable protection of the slaves conveyed to him by her, as she herself would have had if no such conveyance had been made; at least so far as *that protection operated on the interests of the appellant. But from the very nature of this claim, Elizabeth Hickerson was an indispensable party to a suit in equity asserting it. The necessity of making her a party in such a suit is evinced by the consideration that it involved the adjustment and appropriation of her claim on the representative of her husband, and that unless she were a party thereto, the adjustment and appropriation that might be made of that claim by the decree would not bind her, and the representative of the executor would still be exposed to her suit, unprotected by such adjustment and appropriation. What, in my opinion, is the effect of the omission to make her or her representative a party to this suit, and what the proper mode of supplying that omission, will be stated in the sequel.

While I thi-nk the court below was right in maintaining the title of the appellee to its interposition in this case, I cannot approve of its decree. That, in my opinion, is in many respects erroneous.

The account by which the amount of the setoff to the judgment-was to be liquidated could not have been properly settled but in a suit in which all the unsatisfied distribu-tees of Joseph Hickerson shou'd be parties. Such a suit had been brought many years before, and was pending at the institution of this. That and other considerations rendered it improper to make those distributees parties in this suit. In this predicament, the proper course was to retain the injunction in this suit until, by the adjustment of the account in the other, the amount of Elizabeth Hickerson’s claim on the executor of her husband was finally liquidated; and then to apply this liquidated claim as a setoff against the judgment. It was therefore premature to render in this case a final decree giving to the appellee the benefit of the entire claim of Elizabeth Hickerson on the executor, while the suit in which only it could be properly liquidated ^remained undecided. Furthermore, as has been before stated, Elizabeth Hickerson or her representative was a necessary party, and no decree should have been rendered until that omission was supplied.

In my opinion it was wrong, in adjusting the relief to which the appellee was entitled against the appellant, to subject the appellant to a charge'for the estimated value of the slave that had been taken and sold under the appellant’s execution before the institution of this suit. Had the appellee been a bona fide purchaser for value from Elizabeth Hickerson, he would have had no title to relief in equity in respect to that slave after the levy and sale. I cannot understand how his title to relief, and the measure of such relief, can be extended by reducing bis right in the slave to that of a claimant under a voluntary conveyance. Where there are contested mutual claims, and one claimant has his judgment at law, against an execution on which his antagonist might have obtained an injunction, but does not, and such execution issues, is levied, and the property is sold, the plaintiff in the execution has never been held chargeable in equity for the estimated value of the property sold, though it should be ascertained by that court, on the adjustment of the mutual claim, that he was indebted as much as or more than the amount of the execution, to the party against whom it issued. A fortiori such responsibility could not attach, when, on the adjustment of the claim, the judgment claimant is creditor to an amount above the mutual claim, equal to that levied under the execution. In this case it was ascertained, that after allowing credit for the entire claim of Elizabeth Hickerson on the executor of her husband, she was indebted, when the slave King was taken and sold, more than the amount for which he sold. The credit In respect to that slave should have been limited to the amount made on the execution by the sale of him.

*My opinion is that an undue allowance was made for the dower interest of mrs. Hickerson in the slaves of her husband, by charging in her favour the estimated hires of her dower interest in all the slaves of which her husband died possessed. In respect to the two sold under execution before the executor had other assets with which he could satisfy the judgment, it is perfectly clear that if they had been purchased by a stranger, the executor could not have been made responsible for hires. I cannot perceive that the purchase of them by the executor himself would leave him exposed to such responsibility. The sale was made without culpable default in him, and at the sheriff’s sale he, though executor, might purchase, as any other might; and a purchase by him, without fraud, as effectually withdrew those slaves from the dower claim on them specifically, as if the purchase had been by another. And yet the decree has subjected him to a charge for hires which he has not received, as though there had been no sale, and such hires had been received by him. In respect to the four other slaves, while I do not question that a case may exist of such gross misconduct of an executor, as to render him justly chargeable to the widow for hires of slaves that he ought to allot as her dower, but which he has wantonly sold, I think that, having regard to all the circumstances of this case, the dower interest in these four slaves should be adjusted (as I am satisfied it ought to be in respect to the other two) upon the principle adopted by this court in the case of Godwin’s adm’r v. Godwin’s adm’x &c., 4 Leigh 410. Furthermore, in a case in which the estimated hires would properly be chargeable to the executor, the amount of that charge, where it was impossible to trace the slaves and ascertain how long they lived, should be fixed by making a due allowance for the risk of life, and abating the amount thereof from the estimate of hires. The ^slaves may have died shortly after the sale, and the widow claiming hires j would be entitled to them for so long only as the slaves lived. To make the dower right in a slave equivalent to a certain estate for life of the widow, an insurance of his life daring that of the widow must be made ; and the amount of such insurance would be the proper measure of abatement from the estimate of hires during the life of the widow.

ALLEN, J.,

concurring in the opinion of Stanard, J., the decree of the court of appeals was entered in the following terms:

The court is of opinion that the court below prematurely decreed final relief in this case, while the suit of Shumate &c. v. Hickerson, in which alone the accounts necessary to the final decision of this could be regularly adjusted, remained undecided, and while neither Elizabeth Hickerson nor her representative was a party: that, instead of a final decree, the court below ought to have required the representative of Elizabeth Hickerson to be made a party, and continued the injunction in this case until, by the decision in the case of Shumate &c. v. Hickerson, the claim of Elizabeth Hickerson on the executor of her husband had been adjusted: and that in the adjustment of that claim, and the account between Elizabeth Hickerson, or the appellee holding her place, and the estate of Marshall Hick-erson the executor of her deceased husband, the charge to the representative of Marshall Hickerson for the slave sold under execution should be limited to the net proceeds of that sale, and the charge for the dower interest of Elizabeth Hickerson in the slaves left by her husband, instead of being measured by the estimated hires of the slaves, should have been an annual sum from the death of her husband until her death, equal to the annual interest of one third of the gross amount of the sales or the value *of the slaves. Therefore it is considered that the said decree be reversed with costs. And it is ordered that the cause be remanded to the circuit superior court, for further proceedings according to the principles before declared ; in which further proceedings, should it appear that the said case of Shumate &c. v. Hickerson has been disposed of in respect to the other distributees of Joseph Hicker-son, the court will proceed with this cause to a final decree, as it would have done, had it been originally proper so to proceed while the said suit of Shumate &c. v. Hick-erson was pending undetermined.  