
    Mrs Caroline M. Trescot v. Mrs Caroline C. Trescot, Administratrix of John S. Trescot, and others.
    The bill stated that at the sale of the estate of the late William Trescot, made under the decree of the Court of Chancery, Edward Trescot became the purchaser of a house and lot of land in the city of Charleston, and for part of the purchase money gave his bond dated March 1818, in the penalty of ,f25,600, conditioned for the payment of ,f12,800, in two, four, and six years, with interest from the date — the whole of the interest to be paid annually. And to secure the payment of the bond jEdward Trescot executed a mortgage of the house and lot. The bill further stated, that in the division of the estate of the said William Trescot the bond and mortgage were allotted to her, the complainant, as part her proportion of her husband’s estate; and that Henry Trescot, the administrator of the said William Trescot, on the 14th of February 1821, assigned the bond mortgage to complainant; that several payments had been made on the bond, but there was still a large balance due. The bill further stated that Edward. Trescot died in November 1818, having first executed his will and appointed John S. Trescot his executor, and leaving his executor and also George Trescot, Henry Trescot, and Edivard and Elizabeth Trescot (minor children of William Trescot deceased), his heirs at law, who were made defendants to this bill. That John S. Trescot proved the will and took possession of the estate of said testator. That afterwards a division and partition of the estate among the heirs at law was ordered by the Court of Equity, and the Commissioner allotted to each heir a considerable estate in lands, negroes and bank stock, amounting to upwards of ‡30,000 to each respectively. That in the partition no provision was made for the payment of the claim of complainant, but the estate was divided without any reference thereto. Complainant charged that each heir received a dividend subject and liable to her demand. The bill further stated, that John S. Tres-cot departed this life in 1820, intestate; and that Mrs Caroline C. Trescot administered on his estate, consisting, among other things, of the lands, negroes, and bank stock, or their proceeds, which the said John received from his father’s estate. The bill further stated that Henry Trescot had taken out letters of administration de bonis non on the estate of Edward Trescot, but that the estate in his hands was not sufficient to pay complainant’s demand. That in 1821 Henry Trescot applied to complainant, and represented to her, that it was not equitable and right that the house and lot, which he had received as a part of his proportion of his father’s estate, should be incumbered by her bond and mortgage, while the other heirs, who were equally bound to pay the same, had their property unincumbered, and proposed to complainant to have her lien released on the house by entering satisfaction on the mortgage, and to receive his bond as administrator of the said Edward Trescot for the balance due her. That complainant, induced by the representations of the said Henry Trescot, and knowing the estate was amply sufficient, and firmly believing that she would not injure her claim thereon except as to the lien on the particular property mortgaged, consented to the proposal. And Henry Trescot, as administrator of Edward Trescot, gave a bond dated 24th of February 1821, in the penal sum of $14,162.04, conditioned for the payment of $7,081.02, with interest from the date on the 24th of February 1822: and complainant signed a receipt in full on the bond of Edward Trescot and entered satisfaction on the mortgage. That the receipt was dated the 30th of July 1821, and was as follows: “Received of Henry Trescot the amount of the within bond, as administrator of the estate of Edward Trescot. (Signed) C. M. Trescot.” Complainant charged that in making this arrangement she had no intention of releasing the heirs from their liability to her, she believing that the new bond was equally binding on the estate as the old one, and that the only effect produced by it would be to put the proportion of the said Henry Trescot on a footing with the other heirs. That complainant consulted no person whatever, nor took any legal advice, but relied implicitly on the close connection which existed between her and the defendant; and averred that if she had supposed her rights against the estate of Edward Trescot would have been affected, she would have refused to agree to the proposal. That Henry Trescot could not have considered the said bond as settled, as he had never introduced it in his account as administrator of his father’s estate — on the contrary, he had only charged the estate with three payments which he had made on his bond as administrator. That if this amount should be debited in his administration accounts the estate will be considerably indebted to him. That there was no prospect of complainant’s receiving the amount of her demand from Henry Trescot, as he had not funds from his testator’s estate, and his own situation was considerably embarrassed. That there was a considerable balance now due complainant, which the heirs were bound in equity to pay, as the exchange of bonds was made under erroneous impressions. That it could make no difference the heirs with whom they settled, as it must be admitted that if Henry Trescot settled with complainant his right to call upon the heirs would be clear, and his claim paid out of their several portions in preference to their private creditors. Complainant again charged, that she consulted no one as to this transaction, but acted at the suggestion of Henry Trescot, supposing as she then and now believed that it was his wish and intention not to injure her just claims on the estate of his testator. That complainant had made repeated applications to the defendants to cancel the receipt in full on the bond of Edward Trescot, and to pay her the balance due thereon, with which reasonable request she hoped defendants would have complied. The bill propounded interrogatories as to the facts above stated — prayed that the heirs might set forth the property received from the estate of Edward Trescot, and that it might be ordered and decreed that the receipt be cancelled, and the original bond of Edward Trescot be revived, and that complainant’s claim be considered a lien on the estate of Edward Trescot in the lands in possession of his heirs or representatives, and be decreed to be paid out of the same in preference to their private creditors. That the said Edward and Elizabeth Trescot might have a guardian appointed to defend their rights, and that complainant might have further relief, &c.
    
      a receipt in ” anda mortgage, the request legatees, for the legatees, ™der ® ?r?" mise of giving a different seaside^and the bond and . mortgage set up again, the h?Ting bee“ defendant not
    th^!ir®®t°1es3of not being par-n-ghtsreser-ved-
    
      1826.
    
      Charleston.
    
    
      The separate answer of Henry Trescot admitted the death of his father and his will; and that Dr John S. Trescot was sole executor thereof, who qualified and took possession of the estate. That defendant received from the said Dr Trescot to the amount of ‡3,466 ; that he applied to Dr John S. Trescot as executor of his father for a settlement of his legacy and a division of the residuary estate, which he refused, on the ground that the estate of Edward Trescot still owed outstanding debts, and particularly a bond of his testator to the administrator of the estate of William Trescot, given for a part of the purchase money of the house and lot mentioned in the will, secured by a mortgage of the house and lot; that George Trescot and himself, being anxious for a division of the estate of Edward Trescot, proposed to the executor, John S. Trescot, that he should retain the bonds and other dioses in action of the estate to meet small demands against it, — and that the residuary devisees and legatees should and would respectively assume their portion of the bond of Edward Trescot to the estate of William Trescot deceased, which having been divided between his widow and children, the bond and mortgage became the property of the widow, — and upon application to her she readily acceded to the proposal, being herself anxious to facilitate a division of the estate of Edward Trescot, in which her children were interested ; that John S. Trescot agreed to the proposal of the defendant and George Trescot, that the bond of each of the residuary legatees and devisees should be substituted for one fourth of the said bond debt — the bond of John S. Trescot for one fourth — the bond of George Trescot for one fourth — the bond of defendant for one fourth — and that the children of William Trescot should be responsible to their mother and guardian for their own one fourth, — and that the estate of Edward Trescot should be divided as soon as practicable; but that John S. Trescot still refused to carry this agreement into effect, and divide the residuary estate, without the intervention of the Court of Equity, and compelled the other residuary legatees and devisees to institute proceedings for a partition, thereby causing great and unnecessary expense to them. The pecuniary legacies to George Trescot and this defendant were then discharged by delivery of property to them respectively; so this defen-(jant was allotted the house and lot mentioned in the bill at its full value, as a part of his pecuniary legacy, although still incumbered by the mortgage aforesaid, yet under the agreement that the incumbrance should be removed by the sübstitution of the bonds of the heirs, as before stated; the incumbrance however was not remo-ed; and the defendant, finding it necessary at a subsequent period to raise money by a mortgage of the house and lot, applied to Mrs C. M. Trescot to remove the in-cumbrance, and proposed, to her to take his bond as administrator of the estate of Edward Trescot as a memorandum, until the bond of the other heirs could be obtained, in compliance with their agreement; to which proposal she assented, and discharged the incumbrance, expressly stipulating that she did so in confidence that the agreement should be carried into effect, never imagining that any ungenerous advantage would be taken of her confidence in the parties. Defendant admitted that shortly after the division of the estate Dr John S. Trescot died, leaving his papers in great confusion, and not having made regular returns to the ordinary; and that his widow, Mrs C. C. Trescot, administered on his estate; and this defendant took out letters of administration de bonis non, with the will annexed, of Edward Trescot, deceased; and with the funds of the estate paid off some small debts and a part of the bond debt due to Mrs C. M. Trescot, and made regular returns to the ordinary; that the funds of the estate where wholly exhausted, and there was still a considerable,balance due Mrs C. M: Trescot; that the defendant was willing to settle his proportion of the bond debt in the manner agreed upon ; and was informed, and believed, that ■George Trescot was also willing to do so ; but that the widow and administratrix of Dr John S. Trescot objected and refused to perform the agreement, on the ground that the discharge of the incumbrance on the house and lot by C. M. Trescot was a relinquishment of her claim upon the residuary legatees, and dévisees of Edioard J ° , , Trescot. Defendant denied the fact to be so, and again repeated that the arrangement was only temporary until the bonds could be obtained, and that C. M. Trescot expressly declared that she did not consider the bond of defendant, as administrator, as a payment, but looked to the agreement previously made. Defendant was willing to settle any balance due by him to complainant, but he was advised, and submitted to the Court, that complainant was not entitled to any preference over the other creditors of defendant.
    The answer of George Trescot admitted the facts, as far he knew them, to be as Henry had stated them$ that he had been applied to to cancel the receipt on the bond of Edward Trescot, which he had refused to do, on the ground that the rights and interests of 'third persons would be affected thereby, and he could not properly interfere. Defendant submitted to the decision of the Court, whether the complainant had superior equitable claims over his private creditors upon the estate derived by him from his father.
    The answer of Mrs Caroline C. Trescot, administra-trix of Dr John S. Trescot, admitted the execution of the bond and mortgage mentioned in the bill; and that they were allotted to complainant; and that a considerable sum was still due to complainant. She admitted the death of Edward Trescot, the execution of his will, the appointment of his son as executor, and the division of the estate among the heirs by the Court; in which division defendant believed no notice was taken of complainant’s bond 5 nor was any notice taken of the just and equitable claim of Dr Trescot against the estate for commissions on various legacies, though by the terms of the will it was the evident intention of the testator that he should have the benefit of them. She admitted the death of Dr John S. Trescot; that she had administered on his estate and taken possession thereof; and that Henry Trescot had administered on the estate of his father, Eel-ward Trescot; that Henry Trescot gave complainant his bond, as stated in the bill; and that complainant satisfied the mortgage, and gave a receipt in full on the original bond; but what were the motives of Henry Trescot and complainant defendant knew not; and could therefore neither deny nor admit the statement of the same in complainant’s bill. She had been applied to to canceY the receipt on the bond of Edward Trescot, which she had refused, on the ground that the rights and interests of third persons were concerned, over which she had no control, nor with which could she interfere. She neither admitted nor denied that complainant had superior equitable claims over his private creditors on the estate of her late husband, Dr John S. Trescot; but submitted the same to the decision of the Court; to which she also submitted, “ whether the estate was not entitled to commissions on the legacies he settled by a transfer of property; and whether she ought to be compelled to pay any of the creditors of Edward Trescot (who were obliged to seek the aid of the Court) more than an equal proportion with the other heirs, after an allowance of defendant’s équitable demand for commissions against the estate of Edward Trescot.
    
    The joint and separate answers of Edward Henry Trescot and Elizabeth Trescot, infants, under the age of twenty-one years, by Benjamin A. Markley, their guardian ad litem, submitted their rights to the judgment of the Court.
    Thompson, Chancellor.
    The facts in this case were, that at the sale of the late William Trescot’s estate his father, Edward Trescot, became the purchaser of a house and lot, situated at the corner of Broad street and State House square; and for a part of the consideration he gave his bond, dated the 12th of March 1818, in the penalty of $25,600, conditioned for the payment of $12,800, secured by a mortgage of the property; On a division of the estate of William Trescot the above bond and mortgage were allotted to the complainant, his widow, as a part of her proportion of the estate. It further appeared that Edward Trescot died about November 1818, having first" made his will and appointed his son John S. Trescot executor thereof, who duly qualified on the same. In the course of his administration Dr J. S. Trescot had advanced various sums of money to his brothers George and Henry Trescot, and to the minor children of his brother William Trescot. To his brother George he had advanced, at different times, the. sum of $2,221, to his brother Henry the sum of $3,466, and to the minor children of his brother William the sum of $350. These were advances over and above what the parties were entitled to from the estate. On the death of Dr Trescot the defendant, Henry Trescot, administered on the estate of his father Edward Trescot, and possessed himself of the funds of the estate to an inconsiderable amount. He afterwards induced the complainant, in consequence of a previous- arrangement made with Dr Trescot in his life time, and the other heirs, to accept his bond as administrator for the amount due to her on the bond of Edward Trescot, and to give a receipt in full on the latter bond, and to enter a satisfaction on the mortgage of the house and lot in Broad street. At the time this arrangement was made the complainant was without advisers, and did not intend that the lien on the general estate of the original obligor, Edward Trescot, should be relinquished, and so expressly declared. The arrangement was a matter of accommodation to one of the heirs, who had received this house and lot. incumbered as it was, as part of the proportion of the estate, and placed him in an equal situation with the other heirs, who had received their portions free and unincumbered, as had been previously agreef] on between the executor in his life time and the other heirs.
    The,administrator de bonis non of Edward Trescot never considered this bond as fully discharged•; but on the contrary, declared in his answer that he considered his bond given as administrator only as a memorandum of the amount due complainant. He never introduced the amount in his accounts of administration. If he had done so the estate would have been-indebted to him upwards of $6,000. The parties all acknowledged a considerable balance to be due to complainant.
    In the administration of the estate the executor Dr J. S. Trescot erred. He was bound to pay off all the debts in the first instance, or to have provided for their payment. Under all the circumstances of the case it is ordered and decreed, that the receipt on the original bond of Edward Trescot be expunged, and the said bond fully reinstated, — the same to be paid out of any part of the estate of the said Edward Trescot which may now remain in the hands or possession of any of his heirs or representatives ; the same to have a preference to any of their private creditors as far as the specific property received by the heirs respectively from the estate of Edward Trescot is involved. It is further ordered and decreed, that the estate of Dr J. S. Trescot be liable for the amount which may be found to be due by him as executor of his father Edward Trescot, deceased, to the estate of his testator, with interest on the samé from the 3d of October 1820. Also that the estate of the said John S, Trescot be liable for the amount overpaid by him to George Trescot, Henry Trescot, and the minor children of William Trescot respectively, with interest on the same from the respective times the amounts were advanced. It is further ordered and decreed, that it be referred to the Commissioner of this Court to report the amount due to complainant, and to report on the accounts of the executor and administrator de bonis non of Edward Trescot, and the amounts due by them respectively with interest. The costs of this suit to be paid out of the estate of Edward Trescot.
    
    The defendants appealed from this decree.
    
      Pepoon, for the appellants.
    The Chancellor erred in decreeing that the bond in this case should bé set up against the estate of Edward Trescot, and have a preference over the private creditors of the heirs of Edward Trescot, who had taken their property by a regular partition out of the Court of Equity. The complainant herself having regularly satisfied the mortgage and cancelled the bond, and having by her own act held out that there was no such incumbrance on the estate of the heirs, and the creditors not being parties. He was also wrong in decreeing that the estate of the executors of Edward Trescot should pay the sums advanced to his brothers, with interest on the same; inasmuch as the balances were created by the act of the Court itself, in forcing a partition of the estate before the debts were paid, or the estate settled. The decree should have directed, that the heirs who had received the amounts, and who were all parties, should have been decreed to refund their respective sums, with interest; and'not the executor who paid them. Besides, the Chancellor had decreed upon matters not included in the suit, and which were the subject of another bill, in which a reference had been ordered, and which was then pending. The Court was also wrong, in allowing the answer of one defendant to be evidence against the others, contrary to their denial on oath. The rule ob« tained as well in equity as at law, that the Court will not decree on matters not put in issue by the bill and answer. The whole object of complainant’s bill was, to cancel the receipt on the bond and mortgage, and that they should again be set up. And there was nothing in any of the answers, which put the matters of account between the parties in issue, except the mere admission in Henry TrescoVs answer, that he had'received an advance from the executors. But admitting that the questions of accounts were before’the Court, yet the Court erred in decreeing that the executors of Edward Trescot should pay the sums advanced to his brothers with interest, as the balances were created by the act of the Court, in forcing a partition, for it was in effect a decree.
    Receipt set aside.
   Cusía, per

ColcocK, J.

In the argument, the general power of the Court to grant relief in such cases as the present is not. denied. But it is contended that, in this particular case, the bond should not have been set up and charged- on the estate of Edward Trescot; because the complainant, being of full age and of perfect mind, disposed of her rights, and received what she thought a sufficient consideration; and that, at all events, a preference should not have been given to the complainant’s demand over those of the creditors of the legatees.

The first inquiry presented is, whether the demand of the complainant is a just one and' unpaid1? And as to this we are relieved from any difficulty, for the answers of the defendants admit all. that is stated by the complainant on that point. That she held the bond of Edward Trescot, and that there is still due to her a large balance on that debt. It is also apparent, that the debt being chargeable on the estate of Edward Tres-cot each of the defendants were liable for a part of it. Tor if the house which had been allotted to Henry Trescot, as his portion, had been sold, he would have had an undoubted right to call on his co-legatees for contribution; as the payment of the debt would have diminished his portion by so much as the debt amounted to. The removal of the debt then operated as a benefit not only to Henry but to all the heirs. And it was given up by the complainant under the belief, that each of the legatees would become bound to her for his respective share. This impression was certainly made on her mind; and all the circumstances of the case warranted her in believing that it would be carried into effect. It is not important, that the conduct of Henry should be considered as fraudulent; for if he acted under an honest mistake the complainant is equally entitled to relief. If he alone had been benefited by the act, perhaps the complainant would have been bound to look to him alone for compensation. But it would never be permitted that those, who are benefited by the fraud or mistake of another, should be allowed to retain the benefit because they did not participate in the fraud or mistake. It has been urged that there is no proof against the rest. It is true the answer of one defendant is not evidence against his co-defendant; but his answer is evidence of what he thought, and that he ■ made the representation to the complainant; and I think that all the circumstances of the case, taken in connection with the testimony of Mr Bentham, would well warrant a belief that such an arrangement had been agreed on. For he says he was employed by all the parties to settle the accounts. They were perused by George, Henry, and Mrs Caroline C. the administratrix of John, and Charles Carrier her brother, and that the object was to bring about an amicable adjustment, and to settle the bond of Edward Trescot. The Court are, therefore, unanimously of .opinion, that the decree of the Chancellor be so far affirmed, as that the receipt on the bond be cancelled, and the bond again established as a claim agajnst estate of Edward Trescot.

An order for distribution before the debts are paid will not be made unless the executors are secured.

The representatives of an executor or administrator are liable for a devastavit committed by the former; and that even as to an executor de son tort.

But the Court are not prepared to say that the complainant’s demand shall have a preference over the claims 0f the creditors of the legatees; nor is it necessary that the point should be determined; for there is no evidence before the Court, at present, which shews that there will be any deficiency of fund to pay the debt; nor are the creditors before the Court. The decree of the Chancellor on that point is therefore overruled.

Before I proceed to the consideration of the other' grounds and arguments made in the case, I must premise that so much of the second ground as states “ that the balances against the executor John S. Trescot were created by the act of the Court itself, in forcing a partition of the estate before the debts were paid or the estate settled,” is, to say the least of it, altogether gratuitous; for there is no evidence to support the charge of so much inconsistency in the Court; and it cannot be Supposed that an order for a distribution would ever have been made by any Court, had the executor stated that there were still outstanding debts. At all events such an order never would have beén made without securing the executor from all future liabilities. Under this head it was contended, that in no event could the estate of John S. Trescot be made accountable for any mal-admin-istration on the estate' of Edward Trescot; because if he had committed a devastavit, it was a personal wrong and died with him, and his executor or administrator could not be made answerable, and 1 Salk. 314, was referred to in support of the position. It could not have been expected that such a doctrine would have been advanced at this day. That this was the old doctrine is well known, but it was one so fraught with mischief, that the statute of 30 Charles II. c. 7, and that of 4 and 5 of William & Mary, c. 24, sec. 12, (both of which are made of force in this state) were passed for the express purpose of remedying the mischief; and by those statutes the executor of an executor or administrator, and the administrator of an executor, are made liable to an action for a devastavit committed by the first executor or administrator. But even before these statutes were passed the Court of Equity made the estate of an executor (and that too of an executor de son tort) liable. In 2 Modern Reports, page 293, (case 171, Anonymous) a case tried in the Exchequer Chamber, the Lord Chancellor said, the executor of an executor de son tort is not liable at law, though he would help the plaintiff here. And in the case of Price v. Morgan and Evans, 2 Chancery Cases, 217, tried in 1637, the Lord Chancellor declared he would grant relief; and with a prophetic spirit he added, that the common law would comé to it at last. His words are — “ although by the common law, when the executor wastes, his executor shall not be liable, because it is a personal wrong, it is otherwise here, and the common law will come to it at last. Therefore whatever estate of Gyles is come to Elizabeth, or to the hands of William, which William her testator wasted, the personal estate of William in the hands of his executrix shall answer.”

Where lega-ceived their" portions be-the debts have been mayfile his bill against the executor and legatees !JOth for an account.

The second ground concludes with submitting, that the Chancellor ought to have decreed that the heirs who had received the amounts (and who were all parties) : should reiund their respective sums with interest, and not the executor who paid them. It was certainly not necessary, nor had the Chancellor sufficient evidence ~ j before him to enable him, to make any specific decree against any one of the defendants, and therefore this part of the decree is considered as reversed. Such may possibly be the result when all the accounts shall be made out between the parties, as in Stiddolph v. Leigh, 2 Vern. 76, and in l Desaus. Rep. 304. But this Court wjjj n0 more present than order that the accounts of all the defendants, with the estate of Edward Tres-co^j as weH as the claim -of the complainant, be referred to the Commissioner to be examined and adjusted, and that he report the amount of complainant’s demand, and how much, if any, remains of the estate of Edward Trescot unadministered, in the hands of either Henry Trescot the administrator de bonis non, or in the hands of Caroline C. Trescot the administratrix of John S. Trescot, who was. the executor of Edward Trescot.

But it was further urged on the part of the defendant, that a creditor of an estate could not maintain a bill against the legatees or distributees of an estate until the executor or administrator had first accounted; and the reason assigned is, because if one creditor is permitted to do so, all the rest may likewise sue. This reasoning is by no means conclusive or satisfactory, because it may be answered, that if a legatee or distributee will take his share before the debts are paid, he knows that on a deficiency of assets the estate in his hands may be pursued, and he does an act by which he subjects himself to be sued, and therefore has no right to complain; and further, because it seems unjust to counsel an honest creditor to expend his money in calling on an insolvent executor, as may be the case, to account and make good his administration, when ultimately the legatees or dis-tributees must pay his debt. A better' reason, however, is. that there may be funds in the hands of the executor not administered, which ought first to be applied, and the insolvency of the executor ought to appear before the representatives are made' to pay. - It must be admitted, that the position of the defendants’ counsel is generally correct, yet there may be cases in which it would be departed from; as where there was collusion between the executors and legatees, as is expressly said by the Lord Chancellor in the case of Doran v. Simpson, 4 Ves. 664; or, as in a case like the present, where the complainant does not rely alone on a special agreement, or promise to pay.

The geneval ™tor must but there are excep*

But the bill is not against the legatees alone; it is against the representatives of the estate of E¿hoard Trescot, as well as against the legatees: and the circumstance, that the representative of the estate of Edward Trescot is one of the legatees does not alter the case; as he is called on, in both capacities, to answer. And it is perhaps the most convenient way of proceeding to .file the bill against both executor and legatees; as indeed appears to be more frequently done.,

The principle that the executor must first account has been long and well established here; but it appear, by a reference to the cases, that a suit against both has been frequently permitted: as in the case of The Surviving Executors of B. Elliot v. John Drayton Trustee, T. Drayton Administrator of Glen Drayton, and Edward Lynah Administrator of B. Elliot, 3 Desaus. Rep. 29. 2 Fonbl. 372, note (h), book iv. part i. c. 2, §, 5. 3 Cranch, 220. 228. 5 Cranch, 322. 330.

It is therefore ordered and decreed that the receipt on the bond given by the deceased Edward Trescot be erased; and that the bond be re-established as an existing debt against the estate of Edward Trescot deceased ; and that the same be paid out of the unadminis-tered estate of Edward Trescot (if any such there be), either in the hands of the administrator de bonis non, or in the hands of the administratrix of John S. Trescot. But if there be no such funds, then by contribution by the legateés of the said Edward Trescot; each paying his proportion of the debt; and that all the accounts of the defendants be referred to the Commissioner for exam¡nation and adjustment; and that he do report if there be any part of the estate of Edward Trescot unadminis-tered 5 and also that he do ascertain and report the amount of the claim of the complainant; and that the costs of suit be paid in the same manner as the debt is to be paid.

Decree modified. 
      
       See ante, p. 318, the case of Gregory’s Ex. v. Forrester.
      
     