
    JOHN B. BULLOCK v. BENJAMIN ZILLEY, SURVIVING EXECUTOR OF JOHN BUTCHER, ET AL.
    The complainant filed his bill for his proportion of the interest of a surplus in the hands of an executor, and made his brothers and sisters, who are entitled to equal portions of the interest, (if the complainant’s claim for interest is good,) defendants. They answered the bill, submitting their rights to the protection and judgment of the court. Pending the suit, the person at whose death the principal was to be distributed among the complainant and his brothers and sisters, died; and thereupon the complainant settled with the executor. No decree had been made in the cause. The complainant was permitted to discontinue the Buit.
    John Butcher, late of the county of Burlington, died February 7th, 1818, leaving a will, by which he devised and bequeathed to Thomas Butcher, since deceased, and the defendant Benjamin Zilley, whom he also appointed executors of his will, all his estate, real and personal, in trust, that they, or the survivor of them, should sell the same, and put the proceeds at interest. The will directs the said executors and trustees, and the survivor of them, to pay the interest, in their discretion, to the support and maintenance of his nephew Thomas Bullock and his family, including the complainant, for and during the natural life of the said Thomas; and at his death to divide the principal equally among the children of the said Thomas, including the complainant, who may then be living. Thomas Butcher died January 1st, 1828. Five children of Thomas Bullock, besides the complainant, are still living, namely, Margaret Bullock, Amos Bullock, Thomas Bullock, Elizabeth, wife of John H. Cook, and Ann, wife of Turner Risdon. Rebecca, the wife of Thomas Bullock, died July 10th, 1839. The defendant Benjamin Zilley, surviving executor, has in his hands the whole of the surplus of the estate of the testator, after paying the debts.
    The bill was filed April 5th, 1842, in the lifetime of Thomas Bullock, and states that the complainant had formed no part of the family since he attained the age of sixteen, and prays that the defendant Zilley mav be decreed to account with him, and that the said surplus may be applied in a course of administration, agreeably to the directions of the will; and that the complainant may be paid his proportion of the annual interest, or such portion thereof as may be necessary to his support, or he shall appear to be justly entitled to under the directions of the said will.
    The other children, with the husbands of the married sisters, and Thomas Bullock, are made defendants.
    Zilley, the surviving executor, and Thomas Bullock, two of the defendants, put in their joint and several answer. This answer states that all the interest of the said principal sum so invested has been paid, annually, to the support and maintenance of the said Thomas Bullock and his family, including the complainant; and claims that, by the true construction of the will, the interest has been properly paid.
    In May, 1844, after all the testimony had been táken in the cause, the other children of Thomas Bullock put in their answers. Margaret Bullock answers separately ; and after admitting, &c., says that, some time in September, 1828, she was put out to one Amos Bullock, and that she returned to her father in the spring of 1842, and that she is ignorant what share or portion of the said balance she is entitled to, or what sums have been paid to her or for her use, either by her father or by the said Benjamin Zilley ; but that she is willing to abide by their account’thereof, and she submits her rights under the will to the judgment of the court.
    The other children, with the husbands of the married daughters, put in their joint and several answer; one of them, being an infant, answering by his guardian. This answer, after admitting, &c., states that, in September," 1828, the family of Thomas Bullock was broken up, and his children were put out to different persons. That the defendant Elizabeth Cook left her father’s family in the fall of 1828, and did not return till January, 1841, when she remained eleven months, paying for her board by her labor; that she had a bureau, clothes, and goods, of the value of $129, which she believes were paid for or furnished by her father, and .also $100 in cash, received of Zilley. That the defendant Ann Risdon has received from her father $160 in cash,, and received, at sundry times, dresses, bedding, &c., to the amount of $66.50; and that her father paid for her board and schooling, while she was with Caleb Sykes, $34. That all these defendants are willing that whatever may have been received by them should be allowed out of any share of the said balance to which they, respectively, may be entitled, and submit their rights to the judgment of the court, and hope that whatever rights they, respectively, have under the said will, may be protected and secured to them. This answer asks that the trust fund, in whose hands soever it may be, to which they are not immediately entitled, may be invested, under the direction of the court, according to the intent and meaning of the said will; and says that these defendants, since the 11th of February, 1829, have received but trifling sums of interest on the said balance, except what is before stated, and have supported themselves, or been supported by the persons with whom they were living, with little, if any, expense to their father.
    The defendant Thomas Bullock, Jr., who answers by his guardian, says he is an infant under twenty-one, and claims such interest under the said will, and in the said balance, as he is entitled to, and submits his interests to the protection of the court.
    The father^Thomas Bullock, died in March, 1845, and in this position of things Zilley, the surviving executor and principal defendant, settled with the complainant his whole claim, and took his receipt therefor, and the court is now moved to allow the bill to be dismissed.
    
      W. L. Dayton, for the motion.
    
      G. D. Wall and P. D. Vroom, contra. It is a bill for a share of surplus, and the co-legatees were made defendants. All must be made parties, either plaintiffs or defendants. The defendants have answered. The rule, they apprehend, is settled. 2 Sim. and Stuart 219.
    There are two modes of proceeding; one co-legatee or codistributee may file a bill for himself, and for others who will come in and contribute. In this case, he controls the suit until decree. The other mode is, to make his co-distributees defendants, and if they come in and answer, the complainant, they contend, loses the control. The other defendants have set up their claim, and cannot file a bill. The ease stands on the footing on which it would stand under the first mode after a decree. Can the executor, after the answers are in, settle with the complainant? and can the complainant, after the answers are in, withdraw the suit ? The way is, to permit the defendants to proceed in the name of the complainant.
    
      Mr. Dayton, in reply. The argument on the other side shows he is correct. What is the principle applying to the ease ? The gentlemen on the other side have given the rule. It is this : after a decree settling the whole case, the defendants may prosecute the decree, because they cannot then file a bill. But if on dismissal the defendants can file a bill in their own behalf, there is no reason why the complainant should not be permitted to withdraw his suit. The bill was filed before the death of Thomas Bullock, and could not call for anything more than a share of the interest. The situation of the parties is now such, since the death of the father, Thomas Bullock, that the other co-distributees will be obliged to file a bill for their share of the principal, if they can make no settlement with the executor. The dismissal, therefore, will not involve «them in additional expense. He cited Hoff. Ch. Pr. 327; 2 Smith’s Ch. Pr. 311-12.
   The Chancellor.

To avoid multiplicity of suits, one person is allowed to file a bill on behalf of himself and all others in the same interest who may choose to come in and claim relief by and contribute to the expense of the suit. In such case, the decree provides for the rights, not only of the complainant, but of all others who come in to take the benefit of it; and, therefore, the complainant cannot, after the decree, dismiss his bill. I do not think the present case is within this principle. The complainant filed his bill for his proportion of the interest of the surplus in the hands of the executor, and made the other children, who are entitled to equal proportions of the interest, (if the complainant’s claim for interest is good,) defendants. They answered the bill, admitting they had received certain amount», and submitting their rights to the protection and judgment of the court. Pending the suit, the father, on whose death the children became entitled to have the principal distributed among them, died. lío decree had been made in the suit, and the complainant thereupon settled with the executor, and gave a receipt for his share, both of principal and interest. I know of no rule which forbids permitting him to withdraw his suit.

Let the bill be dismissed.  