
    *Elcan’s Adm’r v. Lancasterian School et al.
    January Term. 1856,
    Richmond.
    i. Wills — Device to Wife with Limitation Over “Of Whatever She nay Leave” — Effect.—A devise to a wife of the residue of an estate, after paying debts and legacies, with a contingent limitation over to another “of whatever she may leave” at her death, vests in the wife an absolute estate in the residuum.
    3.Legacies — Void—To Whom Pass. — A void or lapsed legacy passes to the residuary legatee, and not to the next of kin.
    3. Same — Stale Demands. — Stale demands by legatees are to be discountenanced by courts of equity, and executors are to be protected against them.
    4. Equity Practice — Bequests for Charitable Uses. — The general jurisdiction of chancery embraces all questions arising upon legal bequests for charitable uses or otherwise, and if any error is committed in such case, it is an error in the exercise of jurisdiction, not in the assumption of an unauthorized jurisdiction.
    5. Appellate Practice — When Erroneous Decree Will Not Be Reversed. — An appellate court will not reverse a decree, though erroneous, at the instance of a party not interested in the property involved in the suit. It is not sufficient that he may be interested in the question litigated, or that by the determination of the question litigated, he may be a party in interest to some other suit, growing out of the decision of that question.
    Marcus JE)lcan, of the city of Richmond, died somewhere between the 13th August, 1805, and the 9th May, 1808, leaving a will dated on the first day and proved and recorded on the last.
    In the first clause of his will, he makes some special legacies to Charles Macmurdo and Joseph Marx, and appoints them his executors. In the second, he gives to his wife, Phila Elcan, $10,000 and all his furniture, plate, &c.; to his brother Eionel Elcan, $500, to belaid out in silver service; to his sister Heva, residing in Warburg, near Hessen Cassell, $500; to Solomon and Elcan, her two sons, and to Btuma and Bela, her two daughters, $500 each; to his nieces, Sally and Nancy Elcan, $500 each; and to Marcus, Joshua and Joseph Elcan, each, a tract of land. The third clause is as follows: “I give and devise, for the benefit of the *Charity School in Richmond, $1,000, to be laid out in such stock as my executors may think best, and the interest therefrom to be paid yearly for the benefit of this school, the capital to remain untouched. And it is my will that my within mentioned executors, or the survivor of them, do sell my real estate, take an account of all my estate, bonds, &c. &c., and after paying my debts, the residue; or should any of those die to whom I left a legacy in this my last will and testament, all such sums and residues I give to my beloved wife, Phila Elcan; and in case she should died before marrying again, it is my will that whatever she may leave to be equally divided between the children of my brother Lionel Elcan and those of my sister residing in Warburg, near Hessen Cas-sell,” &c.
    The fund thus appropriated for the purpose stated in the will, remained in the hands of the executors unapplied in any form to this object, until in 1811 an information was filed by the Attorney-General of the State, setting forth the terms of the bequest, and stating that the executors were unwilling to make the investment directed in the will, without the authority of the court, and praying that they might be directed to invest the said bequest in stock, and that the said stock might be so appropriated as that the annual interest arising therefrom might be applied to the benefit of the said charity school, without encroachment on the capital. The executors were made parties, and answered, saying, that they submitted the construction of the will to the court; that they knew not whether the said bequest to the charity school was void in law or not; that if void, they conceived it their duty to insist upon it for the benefit of those concerned, and if valid, they were ready to abide by the judgment of the court as far as they had assets; but that from the view they had of their testator’s affairs, they did not believe there would be enough assets to satisfy the whole amount of the several legacies contained in the said will.
    On the sixth of June, 1811, the court decreed that *the defendants, who admitted they had in their hands $500 of the assets of their testator, which could be applied towards the discharge of the legacy to the charity school, should pay that sum to John Buchanan, John D. Blair, Richard Adams, James Bownes, Benjamin Tate and Obadiah Garthright, the trustees of the said charity school, who were directed to lay the same out in some public stock yielding interest, or at interest on good real security, in the names of said trustees, for the benefit of said charity school, and they and their successors were directed to apply the interest arising from said sum of money, to the benefit of said school, in all time to come; but they were not to encroach on or expend any part of said principal sum. Biberty was reserved to the plaintiff to applj for a further decree in the cause whenever the state of the assets of Marcus Elcan, dec’d, should enable his executors to pay more of said legacy than the sum now decreed.
    Subsequently, a further sum of $250 was paid to the trustees by the executors, and nothing further appears to have been done in the case until June, 1836, when the plaintiff having admitted that- the defendants had settled up the estate of their testator and paid the full amount of assets in their hands, applicable to the legacy, the suit was finally dismissed.
    In June and December, 1813, the said trustees lent to Archibald Blair, of the city of Richmond, the two said sums of money, and took deeds of trust, to secure the same, on a lot in the city of Richmond, belonging to said Blair. The interest on the money appears to have been regularly collected and paid by John Buchanan, one of the trustees, to the Chamberlain of the city of Richmond, for the purposes of the free school, until December, 1818; after which period neither the interest nor any portion of the principal seems to have been paid by Blair, (he having died about this time,) nor by his executors after his death.
    At the time of the death of the testator and of the proceedings just detailed, there was no incorporated *school in the city of Richmond, nor any school known as the .“Charitj' School,” but the trustees above named, as natural persons, acted under the authority of an ordinance of the city, in the control of what was called in the ordinance a “free school in the city of Richmond.” The school organized under this ordinance and others amendatory thereof, are continued under its existing organization, supported by voluntary contributions and by annual appropriations by the city of Richmond, until the year 1816. In January of that yealr, the “Bancasterian School” was established by an ordinance of the city, to be supported by subscriptions of the citizens and by appropriations by the city ; and in February of the same year, it was incorporated by the legislature. In May, 1816, the Council of the city enacted that the President of their body should “apply to the school committee of the Bancasterian Institution for an order to receive into that school the children taught at the free school on behalf of the city; and that from the day of their reception therein, the annual funds appropriated to the free school, be applied to said Bancasterian Institution.” From this day forth, the functions of the “free school” seem to have been performed by the “Bancasterian School;” and their funds and duties seem to have been united with and absorbed in those of the latter, who thenceforth provided for the education of all male poor children in the city of Richmond.
    In 1834, (Sess. Acts, p. 258,) the Begisla-ture passed an act transferring the rights and powers of the subscribers to the “Ban-casterian School” to the Common Council of the city, and thenceforth this bod3 became vested with full authority over it.
    In September, 1829, the bill in this cause was filed by “The President and Trustees of the Bancasterian School of the City of Richmond, and the Mayor, Recorder and Commonalty of the City of Richmond,” setting forth the above facts, and stating that Blair, the person who had borrowed the said sums of money, had departed this life, leaving a will; that his executors *were anxious to pay the total sum of principal and interest due on account of the loan to their testator, but that they refused to make such payment until the deeds of trust were released; that the trustees in the said deeds were dead; that all the trustees of the “free school” were dead, except Obadiah Garthright, who, it was understood and believed, had no objection to the appointment of some other body to administer and apply the said fund ; that it was the peculiar and appropriate duty of a court of equity to provide for the proper administration of the charitable bequest of Elcan; and that no agent could be more appropriate than the corporate and forever existing body, (the city of Rich-, mond,) within whose jurisdiction and for' the benefit of whose citizens it was to be applied, and by whose unsparing contributions to the education of the poor, in the “free school” and the “Bancasterian School,” the highest evidence had been given of its deep interest in the object to be obtained by the bequest of Elcan. They therefore prayed that the executor of Blair should be required to pay the said sums of money to the Chamberlain of the city of Richmond, the interest thereof to be applied, under the directions of the Common Hall of the said city, to the education of the poor children thereof.
    To this bill the executors of Blair, Obadiah Garthright, surviving trustee of the “free school,” and the heirs of the trustee in the deeds of trust given by Blair, were made parties. Subsequently, the surviving executor of Marcus Elcan and the personal and real representatives of Lionel Elcan (he having died) were made parties by an amended bill, the latter as the next of kin of Marcus Elcan; but the nieces and nephews of Marcus named in his will, the children of his sister Heva and others, though equally his next of kin, were omitted as parties. The executor of Blair, Richard Adams, sheriff of Henrico, and as such, administrator of Lionel Elcan, and said Lionel’s real representatives, were the onlj parties who answered. Blair’s executor *professed his readiness to pay the money due by his testator whenever he was apprised who was entitled to receive it; and this question he submitted to the court. Lionel Elcan’s administrator referred to and adopted the answer of his next of kin; and these latter answered, insisting that the free school of the city was never incorporated, and was incapable of taking the legacy, supposing it to have been the object of the testator’s bounty; that the Lancasterian School and the city of Richmond were not entitled to the bequest, for they were in no manner named in the will or entitled to its benefits; and that the said bequest, for want of capacity in the “Charity School” to take, continued to be a part of the estate of Marcus Elcan, and rightfully belonged to his next of kin. They therefore prayed that the money should be decreed to them, and that the city of Richmond should be required to pay to them also, such portion of' the early interest on the fund as had been received by its Chamberlain from the trustees of the “free school.”
    The case lingered on the docket a long time, and in March, 1848, the property, conveyed in trust by Blair, was sold by order of the court for a sum sufficient to pay the principal and interest of the loan, which was ascertained to be $2,107 50, and which was paid into court.
    In February, 1849, a final decree was entered in the cause, by which Marcus Elcan’s executors, the heirs of the trustees in the deeds, and the heirs of Lionel Elcan, (called next of kin of Marcus Elcan,) were, on motion of the plaintiffs, dismissed from the suit as unnecessary parties, and then the said sum of money was decreed to the city of Richmond, in accordance with the following extract of the opinion of the court below, made a part of the record:
    “Elcan’s heirs, &c., have filed their answer, insisting on their claim to the money lent Blair, on the ground that the legacy was void.
    “They insist that the Charity School of Richmond *was never legally incorporated, and had no legal capacity to take; and that the persons, styling themselves trustees, were natural persons, never incorporated, and legally incapable of taking and administering the said legacy.
    “They insist, moreover, that though the Lancasterian School is an incorporated body, the bequest was not to that school, and that it has no right to take by way of substitution; and that the city of Richmond can show no just or lawful title to receive it. But is it now an open question, whether this legacy did or could vest at the death of the testator?
    “The plaintiffs, in the first of these suits, rest upon the decree in the suit of the Attorney-General v. Elcan, rendered in June, 1811.
    “This decree, it is contended on behalf of Elcan’s representatives, is a mere nullity, the Court of Appeals having decided that the doctrine of charitable uses is not in force here, and no power existing in our courts to decree, in cases of information, in the name of the Attorney-General, filed to enforce such charities as the present. Eor this, 3 Leigh, 451, is cited. (Gallego v. The Attorney-General.)
    “Whatthe law may be on this subject, it does not seem to me material to enquire. In saying that the court has no power to decree in such a case, the Court of Appeals cannot have meant to de^- the jurisdiction of courts of chancery, in case of a lawful bequest to charitable purposes, to give relief, or the general jurisdiction of those courts in cases of legacies.
    “The error, if it be one, of supposing the proceeding, by way of information, the proper one, no doubt generally prevailed prior to the case in 3 Leigh. The Attorney-General himself, both in that case and in the case against Elcan, must have entertained the opinion that the law was otherwise. But however this may be, it is at most but the error of suing in the name of a plaintiff, who has properly or rightfully no interest or title to sue.
    *“It might have been errof in the court to sustain the information, though where the right of the Attorney-General to file such an information was conceded, or not objected to by plea or demurrer, I do not know that the court was bound ex mero motu to dismiss it; and if there were error in this, I hardly think, when the lawful executors of Elcan were parties to the suit, that it would be competent to them, and still less to the next of kin, at law or in equit3, to insist upon this error as annulling the decree, after the lapse of six and thirty years.
    “If the decision cannot then be set aside, it settles the question that the legacy did vest at the testator’s death, and takes away all right of Elcan’s representatives or heirs to intervene in the case. The legacy, being once established as a vested legacy, cannot rev.ert to the testator’s estate, though the legatee should afterwards become incapable of holding. If I am right in this, Elcan’s representatives are out of the case.
    “Can the present plaintiffs, then, upon the foot of the decree of June, 1811, or on any other ground, demand and receive payment from Blair’s executor, or out of the encumbered property?
    “By the decree, the executors of Elcan were required to pay the fund to the trustees of the Charity School, and the trustees and their successors directed to apply the interest annually to the benefit of that school.
    * ‘The present bill affirms, that by the incorporation of the Bancasterian School, the trustees of the Charity School of Richmond, as previously existing, were, in effect, superseded, and their funds, forms and functions united in the said incorporation, which has since provided for the education of all the male poor children in the city. I do not propose to examine in detail this act of incorporation, or the various ordinances of the Common Hall, in reference to the old free school, the Bancasterian School, or the Female Humane Association. Nor will I go into the learning of charitable uses, or the extent of the doctrine of cy-pres appropriations.
    “Independently of any statute of charitable uses, I *think a court of equity may execute the general charitable object of a testator, though the particular object, or mode of effecting it, should fail.
    “Elcan’s representatives being out of the question, it is not for Blair’s representatives to object, nor do I understand them to object, to comply with their legal obligation to pay the money lent. The party in whom the legal title I suppose survives, the surviving trustee, is a party, and consents, so far as his consent can be affirmed from failure to deny the allegations of the bill, to such appropriation as the bill proposes.
    “The only party who could object, would be the Commonwealth or the Biterary Fund. They will not be bound nor prejudiced by any decree rendered in this case, and for full protection to Blair’s executors, the condition on which the money will be directed to be paid to the plaintiffs, will be, that the city of Richmond shall indemnify them against the claims of all persons, bodies politic or corporate whatever, and shall annually apply the interest of the principal money now due to the education of poor children at the Bancasterian School — the principal to be invested in State stock, and to be held at all times sacred for the purpose stated. This course, I think, will substantially accomplish the benevolent intentions of the testator, or so nearly approximate them as, in my opinion, to be free from reasonable objection.”
    From this decree, the administrator of Bionel Elcan appealed to this court.
    Con. Robinson, for the appellee: 
    
    Whatever may be the opinion of the court on the *various questions which have been discussed, it is submitted, that the court cannot reverse the decree at the instance of this appellant. Neither he, as administrator of Bionel Elcan, nor the heirs or next of kin of Marcus Elcan, can claim the fund or any part of it. The residuary legatee only would be entitled to it,, and the appellant does not assert title to it in that character, nor could he, for the testator makes his wife Phila Elcan his residuary legatee, and as such she is entitled to every thing that fails by invalid disposition — to lapsed legacies, &c. Roper on Begacies, 1673. The appellant, therefore, has no interest in the subject, and the court will not reverse the decree at the instance of such an one. 2 Rob. Prac. (old edit.) 436; Chappel v. Robertson, 2 Rob. 590; Cuyler v. Moreland, 6 Paige, 273; Hone v. Van-Schaick, 7 Paige, 222; Cincinnati Insurance Co. v. Bakewell, &c., 4 B. Munroe, 560.
    The appellant having no interest in the subject, and more than five years having elapsed since the decree was entered,- it is now beyond the power of an appellate court.
    R. T. Daniel, for the appellant,
    in reply:
    The parties who now object that the appellant has no interest, and cannot, for that reason, maintain the appeal, being required to bring before the court those entitled, in case the legacy should be considered lapsed, made Bionel Elcan’s administrator and children defendants, as the persons who would be so entitled. If the next of kin be entitled, his administrator is the proper party to represent them. But if the residuary legatees be entitled, the-children of Bionel were the proper parties. But the appellees, on their motion, had these children dismissed, and that on the ground that the administrator of Bionel was. the interested party, and capable of sustaining the suit. Now, they say it does, not appear that he is interested, and his appeal must be dismissed. Can they now be heard to allege this, and (inasmuch as no appeal can now be taken by the dismissed *parties, because of lapse of time,) gain the cause, by means of their own wrongful act Under such circumstances, the court will make every fair-intendment in favor of the right and interest of the appellant. If, in any view, Bionel Elcan’s administrator is entitled to-share in this fund, he is a party interested, and the court will, in reversing the decree, direct that all other proper parties shall be made.
    I. It appears that the assets were insufficient to pay the legacies specifically bequeathed, one of which was $500 to Lionel Elcan. This is proved by the fact that only $750 of $1,000 were paid by the executors to the school. Now, the residuary legatees can take nothing until the particular bequests are satisfied. And this sum, if ineffectually disposed of, must be applied first in discharge of those bequests. And Lionel Elcan’s administrator is a proper and necessary party. And it is the appel-lee’s fault that such interest is not properly described and set out. A 'volunteer or ami-cus curias cannot appeal; but any party, with an apparent interest, may. See cases cited 1 vol. Tate’s Dig. 41. In Bohn v. Sheppard, 4 Munf. 403, an attorney in fact for creditors was allowed to appeal.
    II. The next of kin and not the residuary legatees are entitled to a fund ineffectually disposed of by the will, where it appears the testator intended the residuary legatees should have only what remained after payment of legacies. 2 Roper on Legacies, ch. 24, § 1, and cases cited. Attorney-General v. Johnstone, Amb. 577; 2 Williams on Executors, 897, and cases in note f.
    III. This is a question of intention. The testator never intended that the residuary legatees should take any of the pecuniary legacies previously bequeathed, except in the event that “any of those die” to whom the legacies are given. So he declares. He thus contemplates the condition on which the legatees of the residuum shall take the particular bequest. Not so in the cases to which the general doctrine applies, for in ’’those cases the testator is never supposed to look to the failure of the particular bequest. Bland v; Lamb, 2 Jac. & Walk. 399.
    
      
      Wills — Devise to Wife with Limitation Over “Of Whatever She May Leave” — Effect.—Nor the proposition that, a devise to a wife of the residue of an estate after paying debts and legacies with a contingent limitation over to another “of whatever she may leave” at her death, vests in the wife an absolute estate in the residuum; the principal case is cited with approval in Hall v. Palmer, 87 Va. 358, 12 S. E. Rep. 618. See also, on this question, Burwell v. Anderson, 3 Leigh 348; Melson v. Cooper, 4 Leigh 408; Brown v. George, 6 Gratt. 424: Carr v. Effinger, 78 Va. 206; Colev. Cole, 79 Va. 251; Missionary Society v. Calvert, 32 Gratt. 357.
      Equity Practice — Laches and Lapse of Time, — See principal case cited in foot-note to Smith v. Thompson, 7 Gratt. 112.
    
   EIELD, P.

In the argument of this case the counsel discussed, with great ability and learning, the question as to the validity of the bequest made by Marcus Elcan in favor of 1 ‘The Charity School in Richmond, ” and also whether the suit brought by the Attorney General against Elcan’s executors for the recovery of the legacy could be maintained in his name. If it were material to decide either of those questions, on the present occasion, I should feel greatly at fault, if, with the aid of their learning, I should fail in arriving at a cor-' rect conclusion. But I think, as Judge Robertson did, that it is not necessary to go into the doctrine of charitable uses, or cy-pres appropriations. I shall, therefore, forbear to imitate even the inclination of my mind upon those questions.

It must be admitted, that as the general ■jurisdiction of the Court of Chancery embraced all questions arising upon legal bequests for charitable purposes, or otherwise, properly brought before it, the Chancery Court at Richmond had jurisdiction to try a suit brought against the executors of Marcus Elcan, for the recovery of the legacy bequeathed for the benefit of “The Richmond Charity School,” and to decide whether the suit was properly brought or not, and whether the bequest was legal and valid.

If in deciding either of these questions the court committed an error, it would have been an error in the exercise of jurisdiction, and not in the assumption of an unauthorized jurisdiction. If the former, the decree would be reversable upon appeal, if taken within three years from the date of the final decree; and if not appealed from in three jears, it became forever binding and conclusive between the parties to the decree or privies. No appeal has been taken from the decree of 1811, which was interlocutory, nor*from the final decree of the 10th of June, 1836; consequently, the decree of the 26th June, 1811, after the lapse of three years after June 10th, 1836, became forever binding and conclusive on the executors of Marcus Elcan, deceased; and if the legatees, or next of kin, of Marcus Elcan could compel the executors to pay the legacy of $1,000 to them, •sfith interest, the executors could never have restitution of the fund made to them from any quarter whatever. In their answer to the amended bill, the defendants say that Blair, who borrowed the money, is liable to them for the amount, with interest; that the trustees of the school are also liable, and that the executors of Marcus Elcan are liable because they wrongfully paid away the money. I am willing to concede, that as Lionel Elcan was no party to the suit, nor privy, the decree was not binding on him. Yet, I- say, that neither could Lionel Elcan, if alive, go behind the decree of 1811, and subject either of the persons above referred to, to the irreparable mischief of having to pay over to them the principal and interest of that money, nor can his representatives do so.

The executors of Marcus Elcan qualified as such on the 9th of May, 1808. One year thereafter the legatees had a right to sue for their legacies. Lionel Elcan was then alive, was sui juris, and so continued for many years thereafter. He instituted no suit for the recovery of his legacy, or to test the validity of the bequest to the Charity School. No such suit has been brought even to this day, either by him or by his representatives. An amended bill was filed in this suit in September, 1849, making the representatives of Lionel Elcan defendants, and they filed their answers. Let these proceedings be regarded as equivalent to a suit then brought by the representatives of Lionel Elcan against his executors for the settlement of their executorial accounts and for receiving the amount due on the settlement, and asking the court *to declare the bequest to the Charity ■ School to be void, and to dispose of it according to the rights of the parties. Then we have a case iii which, after the lapse of thirty-eight years from the time when Lionel Elcan could have brought the suit, and after the lapse of thirty-six years from the date of the decree of 1811 affirming the validity of the bequest, the representatives of Lionel Elcan, for the first time, seek to bring the executors of Marcus Elcan to a settlement of their accounts, and to obtain a decree declaring the legacy to the Charity School in Richmond to be void, regardless of the decision made in 1811, or the consequences which would result to the executors from its being disregarded.

Surely, after the decision of the various cases in the Supreme Court of Appeals of Virginia, referred to by Judge Lomax in his 2d volume of the treatise on Executors, page 489, note (p,) shewing that an executor is entitled to be protected against the stale demands of a legatee, and especial^ after the decision made more recently by the Court of Appeals in the case of Smith v. Thompson, 7 Grat. 112, I hazard nothing in saying that such pretensions should be discountenanced by a court of equity.

Whether, therefore, the decree of the 26th June, 1811, was absolutely void for want of jurisdiction in the court, or erroneous because the legacy was void, is a matter of no concern to the appellant, as in neither aspect of the question has he any right to call the executors to a settlement.

But this is not the only ground on which I think the decree should be affirmed. The amended bill was filed for the purpose of making the representatives of Lionel Elcan parties as next of kin of Marcus Elcan, not as legatee; because if it had been necessary to make them parties in respect to legacies, then, for the same reason, Phila Elcan, the widow, Heva Elcan, his sister, and her two sons, Solomon and Elcan, and his nieces, Sally and Mary, all of whom were pecuniary ^legatees of specific sums, should have been made parties also, but which was not done, indicating, clearly, bj' such omission, that Lionel Elcan’s representatives were brought in as next of kin. The amended bill states “that Marcus Elcan died unmarried and without child,” leaving “an only brother, Lionel Elcan, who was his next of kin;” that his estate had been committed to Richard Adams, and sets forth the names of his descendants, all of whom were made parties and answered the bill. Not one of them claimed anything through Lionel Elcan as legatee. The administrator, Richard Adams, refers to the answer of George H. Elcan, son of his intestate, and adopts it as his answer. That answer contests the validity of the bequest, and contends that “the money embraced therein is, for want of capacity in said Charity School and its so-called trustees to take the same, a part of the estate of Marcus Elcan, undisposed of by his will, and now rightfully belongs to his next of kin, and is now recoverable by them against all who have received the same.” On these answers issues were joined.

It is not pretended by these defendants, that the legacy of $500 to Lionel Elcan had not been paid off in full; and no claim having been set up to be allowed to recover out of this alleged void legacy anything on account of an abatement of the legacy of $500, in consequence of deficiency of assets, we are bound by the pleadings in the cause to infer that the legacy of $500 to Lionel Elcan had been paid off in full by the executors, and that the appellant rested his pretensions to recovery wholly upon the ground of his being the next of kin of the testator, and as such entitled to receive the $1,000 as an intestate portion of Marcus Elcan’s estate, under the statute of distributions. In this character the appellant has no interest in the subject of litigation in this suit.

On inspecting the copy of the will in the record, it will be found that the testator has given the residue of his estate to his •widow, in these words: “the residue, *or should any die to whom I have left a legacy in my last will and testament, all such sums and residues I give to my beloved wife, Phila Elcan,” with a contingent limitation over to nephews and nieces “of whatever she may leave.” The effect of these last words was to give to Mrs. Elcan an absolute estate in the residue. (Riddick v. Cohoon, 4 Rand. 547; Melson v. Doe, &c., 4 Leigh, 408.) If the legacy in favor of the Charity School should be declared to be void, it would pass, under the residuary clause, to Mrs. Elcan, (2 Lomax on Executors, 179,) and not to the next of kin of the testator.

The appellant having, therefore, no interest in the fund, that is another reason for affirming the decree. (2 Rob. Prac. 436 ; 2 Rob. Rep. 590.)

TYLER, J.

Marcus Elcan died in 1808. By his will, he bequeathed to the appellant’s intestate $500, to the Charity School in Richmond $1,000, and after several other bequests, the residuum of the estate he devised to his widow. To enforce the payment of the legacy to the Charity School in Richmond, the Attorney-General filed an information, made the executors of M. Elcan parties, and in 1811 obtained a decree. In part satisfaction of this decree, the executors of Elcan paid $500, admitting assets to that amount applicable to the satisfaction of the legacy, but expressing a doubt in their answers whether there would be sufficient assets to discharge and satisfy all the legacies. Some time thereafter, it appears that these executors paid, in further satisfaction of the decree of 1811, $250, arid then the information was dismissed. The Charity School in Richmond having gone down, the appellees claimed the fund (viz: the $750) which had been invested, and to recover the same instituted the present suit in 1836, and the court below decreed in favor of the appellees, from which decree the administrator of Lionel Elcan, to whom the legacy of $500 was bequeathed, appealed to this *Court; and the question is, Has he any such interest in the subject matter of this suit, as would entitle him to appeal?

It is a well-established rule of chancery practice, that a person, to be a party in interest, must be interested in the property involved in the issue. It is not sufficient that he may be interested in the question litigated, qr that by the determination of the' question litigated, he may be a'party in interest to some other suit growing out of the decision of the question litigated. (See Mayo v. Murchie, 3 Munf. 401-2.) If, therefore, this court were to reverse the decree of the court below* and declare the legacy to the Charity- School void, from all that appears in this record, the legacy would fall into the residuum and pass to the widow of Marcus EJlcan or her representatives. But still it might turn out, that the decree of the court declaring the legacy void would give rise to a demand, on the part of the appellant, depending on the facts-: 1st, whether the legacy of $500 to the appellant’s intestate had been satisfied; and, 2d, whether the executors had in their hands (exclusive of this bequest to the Charity School) sufficient to discharge and satisfy the legacy. There is, however, nothing in this record from which this court can infer the existence of such a state, of facts. 'IJhe appellant makes no claim by reason of his intestate being a legatee of the testatoh, whose legacy is .yet unsatisfied; but he claims to be interested in this suit by reason of his being next of kin to the testator, under the delusion that the legacy being declared void, the testator would be considered as having died intestate as to the $750, and that it would pass to him as next of kin. In this, however, he was mistaken. The amount paid over by the executors to the Charity School would fall into the residuum, if the legacy was void, and would not go to the next of kin. Independent of this, if the court is to be governed by inference or presumption, it would presume that the legacy *of $500 to Lionel Elcan had been, fully paid, or if only paid in part, that all claim to the balance had been long since abandoned — it being now about forty-five years since the decree was pronounced, (in 181-1), declaring the legacy to the Charity School valid, and by virtue of which the executors of EJlcan paid over the $750. Without, therefore, expressing any opinion as to the validity of the bequest, to the Charity School, or the title of the appellees to the fund, or the binding efficacy of the decree of 1811, I am of opinion, that these are matters in which the appellant does not appear by the record to have any interest, and that, as to him, the decree should be affirmed.

CLOPTON, J., and THOMPSON, J., concurred with Field, President.

GILME)R, J.,

was for affirming the decree, on the ground that the appellant had no such interest in the subject of this suit as to entitle him to an appeal, but expressed no opinion on the other questions in the case.

Decree affirmed.  