
    Richardson’s Executor v. Hunt.
    Monday, March 18, 1811.
    «. Parties — Division of Residuum of Estate. -All the residuary legatees, or distributees, ought to be parties to a suit for division of a residuum.
    3. Bvldeuce-Witnesses— Persons Interested. — A person acknowledging1 that he considers himself interested in the event of a suit, is not a competent witness, though in fact not interested.
    Elijah Hunt, and Sarah, his wife, one of seven residuary legatees in the last will of Turner Richardson, deceased, brought suit in the superior court of chancery for the Richmond district, against John Richardson and *Samuel Richardson, acting executors of the decedent, (John being also one of the. legatees,) to recover her share of the estate; without making the other five legatees parties. Elizabeth Ellis, one of the legatees, was examined as a witness for the complainants, and her deposition seems to have been regarded as evidence by the commissioner upon' an order of account; notwithstanding, upon being questioned, she acknowledged that she considered herself interested in the event of the suit. The clause in the will, under which the plaintiffs claimed, directed the residuary part of the testator’s estate to be valued by three neighbours to be chosen by ;he executors; that his three daughters, Sarah .Hunt, Elizabeth Ellis and Ann Hunt, should receive their parts in money, (to be raised by a sale of the property, by the executors,) and that the remainder should be equally divided among John, Turner, .Martha and Rebecca, in negroes and other estate, according to such valuation.
    The court of chancery, on the 4th of June, 1805, decreed, in favour of the plaintiff Sarah Hunt, (the suit having abated, as to her husband, by his death,) against Samuel Richardson, the surviving executor, that the defendant, out of the goods, &c. in his hands to be administered, do pay unto the plaintiff 2351. 14s. 3d. with interest on 1441. 6s. 3d. (which was one seventh part of the sum at which the whole residuary estate was valued,) from the first of September, 1803, till payment, and also the costs of suit; from which decree the defendant appealed.
    Wirt and Wickham, for the appellant.
    Pe3Tton Randolph, for the appellee.
    Monday, April 22. The judges pronounced their opinions.
    
      
       Parties — Suit by Distributee to Obtain Shares. - In general, one distributee cannot obtain a suit to recover his distributable snare without ma king tb e other distributees parties. Sillings v. Bumgardner, 9 Gratt. 278, citing the principal case.
      While a legaiee whose legacy has been consented to by the executor may sue the executor for it at law without joining the other legatees, still, where the fund out of which the legatees are to be paid proves insufficient or is subí ect to debts which re-auire a proportional abatement from each legatee, all the legatees must be parties. Rexroad v. McQuain, 24 W. Va. 85. citing the principal case.
      The principal case is distinguished in Moore v. George, 10 Leigh 228, 246. and a foot-note to this case contains the grounds tor the distinction.
      Chancery Practice -Want of Parties -Objection in Appellate Court. — To the point that, where the want of parties appears on the face of a bill in chancery, the objection is fatal in the appellate court though not taken in. the court below, the principal case is cited in Sillings v. Bumgardner, 9 Gratt. 273; Dabney v. Preston, 25 Gratt. 838; Dower v. Church, 21 W. Va. 50.
    
    
      
       Bvidence — Witnesses.—See monographic note on "Witnesses” appended to Claiborne v. Parrish, 2 Wash. 146.
    
   JUDGE BROOKE.

In this case, two points are insisted on by the counsel for the appellant: 1st. That all the parties *are not before the court; and, 2d. That the testimony of EUzabeth Ellis ought not to have been received by the commissioners. On the first point, I think there is no difficulty: the rule is, that all persons concerned in the demand, or who may be affected by the relief pra3red, ought to be parties, if within the jurisdiction of the court: the legatees of the residuary estate are all concerned in the demand, and may be affected by the extent of the relief granted in this case: depending on the residua^ estate for the amount of their legacies, they are all materially concerned in the administration of that fund, and will all be, more or less, affected by the quantum which may be accorded by the court to the appellee: as, for example, if there has been a mala fide valuation of the propert3', or an irregular sale of it, so as to lessen its real value to the legatees, they would all be affected by the decree. In the case in 1 Vesey, jun. relied on by the counsel for the appellee, Eord Thurlow decided under the idea that the legacy was a specific legacy, but reserved that point for consideration. The position, that the legac3’, in the case under consideration, became a specific legacy, by the valuation and sale of the property, according to the directions of the will, for the payment of the money legacies, begs the question 1 It is predicated on the position that the valuation and sale were perfectly, correct; a position that all the parties interested ought to have an opportune of questioning, and, of consequence, ought to be in court for that purpose.

On the second point, I am of opinion that the testimony of Elizabeth Ellis was improperly admitted by the commissioner: when asked the question, she professed herself to be interested in the decision of the suit. The policy of the rule of law on this point is, to exclude persons who have a strong bias on their minds trom being placed in a situation where their interest may induce *them to depart from the truth; 1 Peake, 144. The case of Fotheringham v. Greenwood, there cited, was a stronger ease than the present: in that casé the witness felt himself under an honorary engagement to make good a loss, and was held incompetent. I am of opinion the decree must be reversed, and the cause sent back; that proper parties may be made.

JUDGES ROANE! and FLEMING

assented.

The decree was therefore reversed, and the cause sent back for all the legatees to be made parties, and direction was given that, on the hearing of the ■ cause, the deposition of Elizabeth Ellis be not read in evidence; she being an interested witness. 
      
       Mitford’s Pleadings, p. 39, and the cases there referred to.
     
      
       Wainwrightv Waterman, 811, 314.
     
      
       1 Strange, 129.
     