
    Charles I. Dutart and others vs. John Cox and others.
    Heard before Chancellor Desavssuke, Charleston, May Tern). ,1836.
    The bill was filed to enjoin the collection of two promissory notes given by the complainants to the defendant Cox, and by him passed away to the defendant Frazer, with a full knowledge of the equity stated, and without consideration.
    The object of the bill is to set aside a division made of the per, sonal property, and to rescind sales made of the real estate of the late Robert T. Roberts, on the ground, that the same were made by John Cox, the acting executor, in opposition to the will of the testator, and in derogation of the rights and interests of the com, plainants. There is no doubt from the facts stated and proved, that the division and sales made, were contrary to the will, and in some degree in derogation of the rights of the parties ; but it k equally clear from the statements and evidence, that the division and sales were made by the executor, at the urgent and ever pressing applications of complainant, C, J. Dutart, verbally and by letter. '
    He not only suggested and pressed, hut in some degree coerced the executor to act as he did ; he also gave the executor a bo-ad of indemnity and a release; he comes, therefore, with a very ill grace, to ask the aid of the court, to set aside proceedings instituted, pursued and completed at his instance; and as it is impossible for him to place Mr. Cox, the executor, or the estate in the situation it was when he imprudently yielded to the urgency of the complainant, C. J, Dutart, it does not appear to mo, that the complainant has an equity, or any claims to the aid of the court, to relieve ■him from the entangled situation, in. which, he has actually forced himself; as to him, therefore, it would appear to me, that the bill ought to be dismissed Tiie bill, however, is filed also on the behalf and for the benefit of some oí the minor heirs, or legatees, by the said C. J. Dutart, and Isaac Dutart, calling themselves their next friends ; the former of these in his papers and instruments, and dealings with John Cox, styled himself guardian of these minors. The court under the circumstances, is unwilling that the interests of the minors should be under the care of a person, who has acted so precipitately and unadvisedly, and as he now alleges, so disadvantagously to the interests of the minors, in an assumed character, to which he acknowledges, he had no regular authority. It is, therefore, directed, that it be referred to the commissioner, to examine and report, whether it would be for the interest of the minors, to set aside, and rescind the doings and proceedings, which have, heretofore, taken place in relation to the estate of R. T-Roberts, and their interests therein ; and whether the same can be safely and properly done, by any course of proceeding in this court; and by what authority, and by whose consent, said C. J. Dutart, and Isaac Dutart, are acting as the next friends, or as the guardians of the said minors, and whether they are fit and proper persons to be appointed to act on their behalf, under the circumstances of the case.
    HENRY W. DESAUSSXJRE.
    And complainant appeals, because the decree is imperfect and erroneous, and ought to have afforded full relief, by enjoining the defendants from collecting a note, the consideration of which had failed. And also ought to have ordered a general reference, to enquire into the character of the settlement, and how far it could be sanctioned, consistently with the interests of the minors, and so to have -shaped the decree as to have saved the interests of all parties.
    Because equity does not refuse its aid by way of punishment; ■and if parties make mistakes and proffer to do equity, they are en» titled to receive it.
   Chancellor J. Johnston

delivered the opinion of the court.

By the evidence, it appears that Dutart gave his note for just such a title as he has got; that he made the arrangement, pressed the other parties into it, and to overcome their reluctance, even went so far as to give his bond to indemnify for a departure from the will; and undertook to stand between the executor and his co-plaintiffs.

He has been let into possession, and has committed waste on the land, for two shares of which, the notes were given.

Host, for motion.

Dukkin, contra.

Filed 21st March, 1837.

The chancellor was clearly right, in dismissing the bill as to Dutart.

With respect to the minors, the court will leave them to make-their own' choice, when they come oí age, whether to abide by the decision or not. This is the course of the court in such cases. The bill must be dismissed entirely, at the cost of Dutart, who in. stituted the suit; and it is so ordered.

An order was made on the 18th January, 1837, to enjoin the Collection of the notes, until the rights oí the devisees, for whose shares in the realty the notes were given, should be settled. The eourt hereby declares their rights to be to have the notes collected, and on coming of age to have a reasonable time, after they are informed of their interests, to elect between taking their shares of the notes, or to insist on their devises. The order referred to, is therefore rescinded.

J. JOHNSTON.

We concur,

DAVID JOHNSON,

WILLIAM HARPER.  