
    KISANY RABY vs WILLIAM J. ELLISON.
    Where a testator, after giving various legacies, directed that the property given to his wife should be sold and the proceeds remain in the hands of the executor/or the benefit of A. during her life, to be furnished to her from time to time at his discretion, and at her death to be equally divided among all her children, and the executor paid off all his debts and the legacies except that to A. Held, that, in a suit brought by A., after the death of the executor, against his administrator, for an account and payment of this legacy, the administrator de bonis non. of the original testator was a necessary party.
    Appeal from a decree of the Court of Equity of Martin County, at the Spring Term 184S, dismissing the bill upon demurrer, his Honor Judge Caldwell presiding
    The bill alleges, that, by the will of John Wyatt, after payment of debts and certain specific legacies, all the balance of his property, consisting of land, negroes, &c, •was loaned to his wife for life, and after her death was to be sold by the executor, and the money arising from the sales, was to remain in the possession of the executor for the benefit of the plaintiff during her life, to be furnished to her from time to time at the discretion of the executor; and at her death to be equally divided between all her children ; That Lawrence Cherry, the executor, qualified and took the estate into his possession ; paid off all the debts of the testator; assented to all the legacies ; paid off all the legacies except the legacy due to the plaintiff; and delivered over certain property to the widow, as the residue to which she was entitled for life; that the widow died in 1837 ; that the said Cherry sold all the property, which had been delivered over to her, and received from the sale thereof the sum of $1000, or other large sum : that the said Cherry filed no inventory and made no settlement of the estate of the testator, and died intestate in the year 1846, having paid the plaintiff only the sum of ten dollars towards her legacey.
    The bill further alleges, that the testator bequeathed, and desired, that, if his executor should die before the estate was fully settled, the executor or administrator of his executor should carry the will into execution and settle the'same ; that the defendant had been appointed administrator of the said Cherry, but had renounced as executor of the testator, and declined having any thing to do with his estate.
    The bill prays for an account of the estate of the testator, so as to ascertain the trust fund, which was or ought to have been in the hands of the intestate of the defendant; that the amount found due may be paid to the plaintiff, and for general relief.
    The defendant demurred for the want of parties ,' upon argument the demurrer was sustained, and the bill dismissed. And the plaintiff appealed.
    Rodman, for the plaintiff submitted the following argument :
    It seems to be contended on the part of the defendants, that the clause requiring the proceeds of the sale to be paid to the plaintiff at “the discretion of the executor” gives the executor a beneficial interest in the legacy.
    In answer to this proposition, see 2 Sto. Eq. Jur. sec. 1063. Burt v. Offly, 1 Ch. R., 246. 1 Jarman on Wills, 
      335-6, and cases there cited. Morrison v. Kennedy, 2 Ire. Eq. 279.
    It is also contended by the defendant, that an administrator de bonis non of John Wyat is a necessary party to this bill.
    This proposition seems founded on the idea that the fund was in the hands of Cherry, the executor, as executor simpl)', whereas it is submitted that the clause in the will constitutes Cherry a legatee in trust — a trustee — as much as if Cherry had been individually named, as in 5 Ire. 87, and not also appointed executor, and that, having once accepted the trust, it was incompetent for him or his administrator to renounce it and he was and his administrator is bound to pay over to his cestui que trust. This distinction is made in Byrchall v. Bradford, 6 Mad. 235, cited Williams on Executors, 860. Etheridge v. Bell, 5, Ire. 87.
    It is clear that Cherry assented to the legacy and acted as trustee, for he made payments to the cestui que trust which as executor simply he had no right to do.
    No counsel for the defendant.
   Pearson, J.

In answer to the objection, that an administrator de bonis non is a necessary party, it was contended by the plaintiff’s counsel that, as Cherry had paid off all the debts, assented to the legacies, paid off all the legacies, except the legacy due to the plaintiff, and delivered over to the widow certain property as. the. residue, his duties as executor had terminated, and he was to be considered as having received and held, as trustee for the plaintiff, the proceeds of the property sold after the death of the widow ; and that there was no more necessity for having an administrator de bonis non a party, than there would be, if a third person had been trustee, and had received the trust funds from the executor ; for this position the case oí Birchall v. Bradford, 6 Mad. 235, was cited.

If the amount of the trust fund had been certain, or been made certain by a settlement filed by Cherry, the executor, there would be much force in the argument, and it would be sustained by the case cited. In that case the amount of the trust fund was certain, to wit, £2000 ; in this case, it is wholly uncertain, to wit, the proceeds of the sale of what property may be left after paying debts and legacies and subject to a life estate of the widow ; and to ascertain its amount, it will be necessary to have a general account of the estate of the testator. This general account is prayed for and is necessary to the relief sought. It is this which distinguishes the two cases ; for it is clear, that a general account of the estate of the testator cannot be taken, without a representative of the testator.

There is another point of view, in which the bill is defective as to parties. The plaintiffis entitled to the benefit of the trust fund for her life, at the discretion of the executor, with a limitation over to her children.

Several questions may arise as to the extent of the plaintiff’s interest. Will she be restricted to the interest of the trust fund during her life 1 Or will she be allowed to use a part of the principal, if necessary for her maintenance ? In these questions the children, ifthere be any, are interested, and if there be none, then, upon failure of the limitation, over an interest will remain undisposed of, and an administration de bonis non will be necessary for its distribution. So that the children, iÍ there be any, and the administrator de bonis non, if there be no children, are necessary parties, because they are interested in and will be bound by the account, which may be taken of the estate of the testator, and because they are interested in the questions, as to the extent of the plaintiff’s interest in the trust fund.

We concur with his Honor and think the demurrer was properly sustained, and that the bill ought to be dismissed.

Per Curiam.

Decree affirmed;  