
    *Sheppard’s Executor v. Starke and Wife.
    Friday, Nov. 22, 1811.
    1. Decrees- — Amendment—Motion—Bill of Review. — A decree whichis final in all respects, excepc tnat '“liberty is reserved to the parties, or either of them, to resort to the Court for its further interposition, if it should be found necessary.” may be amended, on motion, in a summary way, or by bill of review.
    2. Chancery Practice — Want of Proper Parties — Effect in Appellate Court. — If it appear, on the face of the record, that proper parties to the suit are wanting-, the decree will be reversed, unless the obiection was expressly relinquished in the Court below. See Hooper and wife v. Royster, 1 Mun-ford, 119, pi. 8.
    
      3. Same — Suit for Division of Residuum of Estate— ’Parties.— All the residuary legatees or distribu-tees, together.with tbe executors or administrators of sued as bave died since the testator or intestate, ought to be parties to a suit for division of a residuum. See S. P. Richardson's Executor v. Hunt, 2 Munford, 148. See post, Branch’s administratrix v. Booker’s administrator.
    4. Chancery Practice — Distribution — Parties. — The Court cannot decree a distribution, in favour of persons not parties to the cause.
    5. Same — Prayer for General Relief. — Under the prayer for general relief, the plaintiff in equity cannot recover a claim distinct from that demanded, or put in issue, by his bill. See the Note to 1 Munford, 554.
    6. Executors — Decree against — Form. — A decree, against an executor or administrator, for a balance due on his administration account, ought not to be, “that he pay the same out of the estate in his hands to be administered; ’' but as his own proper debt. See Moore's executrix v. Ferguson, 2 Mun-ford, 421. and Barr v. Barr’s administrator, 2 II. & M. 26, S. P.
    7. Same — Compensation — Commissions. —In this case, a commission of five per cent, on the moneys received by the executor was allowed him, in lieu of all expenses; such commission tobe deducted from the balance due the estate at the end of each year. See Fitzgerald v. Jones, 1 Munford, 150, pi. S.
    8. Same — Accounting and Settlement — Interest on Annual Balance.  — When interest is charged, against an executor or administrator, (in settling his administration account.) on balances due at the end of each year, it ought not to be carried to the accounts of the succeeding years so as to convert it into principal and make it bear interest; nor to be deducted from the payments made in such succeeding years. See S. P. Granberry’s executor v. Granberry, 1 Wash. 249.
    9. Same — Distribution of Residuum — Refunding Bond. —An executor ought not to be compelled to make distribution of a residuum, until bond and security be given by the distributees, as required by the act of Assembly in the case of an administrator. See Rev. Code, vol. 1, p. 166, sec. 51, and Stovall’s Executor v. Woodson and wife, 3 Mun-ford, 303.
    10. Acknowledgment by Feme Covert — Effect.—An acknowledgment by a feme covert is not sufficient to establish an account against her husband, though it be for articles furnished her before the marriage.
    ii.Legatees — Division of Slaves among — To Whom Payment of Surplus Hade. — In a division of slaves among legatees, if those allotted to some of them be valued at more, and to others at less, than their respective shares; and the Commissioners making the division direct, that each person whose allotment is too large shall pay a surplus, without designating to whom; it seems, that such payments are to be made to the executor, and by him to the other legatees, so as to make the division, equal; and he is accountable if he deliver the slaves allotted to any legatee, without receiving the surplus payable from Mm or her.
    
    John Starke and Elizabeth his wife, filed their bill, in the Superior Court of Chancery for the Richmond District, against Philip Sheppard, executor of Joseph ^Sheppard, deceased, for settlement of his administration account, and division of a residuum of the estate of his testator, among his brothers and sisters; their names (as set forth in the bill) being Elizabeth, the plaintiff, Philip, the defendant, Polly, the wife of Austin Morris, Susanna, the wife of Edmund James, Eucy, the wife of Austin Eeake, Mosby Sheppard, John Sheppard, an infant, and Anne Sheppard, an infant; amounting to eight; William Sheppard (the ninth) having died since the death of the testator, intestate, and without issue.
    The defendant, by his answer, made no objection to the plaintiffs’ having failed to make the other brothers and sisters parties to the suit, but declared himself ready to render an account of his administration; holding himself at liberty to charge the plaintiffs with a negro of the value of 251., with certain articles furnished for the said Elizabeth before her marriage; and with 100 dollars received, (as he alleged,) by the plaintiff John, as his proportion of the houses and lots belonging to the estate.
    The Court referred the accounts between the parties to Commissioners, who reported a balance of 8021. 2s. 10d., in favour of the estate, after giving the executor credit for sundry expenses, in the course of administration, amounting to 371. 14s. for which no vouchers were produced, and as to which the Commissioners expressed doubts, being of opinion that commissions ought to be allowed on all moneys received by the executor. The Court, on the 25th of May, 1804, confirmed the report, (except as to the said sum of 371. 14s.) and allowed ' the defendant commissions in lieu thereof; but, inadvertently, *did not deduct the said commissions from the above-mentioned balance; the decree being, “that the said executor distribute the 8391. 2s. lOd. appearing to be now due from him, to balance the account-reported by the Commissioners, among the testator’s brethren and sisters, upon their giving security against future demands of creditors ; and liberty was reserved to the parties, or either of them, to resort to the Court for its further interposition, if it should be found necessary.’’
    To this decree the defendant exhibited a bill of review, on three grounds, viz. 1st. That, before distribution, his commissions, at five per cent., ought to be deducted from the balance of 8391. 2s. lOd.; 2dly. That the decree had not stated, precisely, how the distribution was to be made; or, in other words, into how many parts the balance should be divided; that the testator had nine brothers and sisters, and the part of William, (who died intestate, and without wife or child,) having devolved on his father, Benjamin Sheppard, who survived him, the distribution should, therefore, be into nine parts; 3dly. That, against the ninth part, to which Starke and Wife were entitled, the executor should have had credit for 571. 7s. lid. with interest; being the amount of his account for articles furnished the said Elizabeth before her marriage. In this bill of review, (which was received by the Chancellor, July 12th, 1804,) nothing is said of the negro, valued at 251. and the 100 dollars claimed in the answer to the original bill. With respect to the latter, there was no evidence in the record; no account having been taken, by the Commissioners, relative to the houses and lots devised by the testator, except as to the rents thereof; and no division of such houses and lots appearing to have been made. In obedience to an order of the high Court of Chancery, (a copy of which, without a date, was in the transcript of the record,) the slaves whereof the testator died possessed, were divided'into eight parts; in which division, a negro boy, at the price ’’of 251. was allotted to Elizabeth Sheppard,, and she was to receive the sum of 391. 10s. to make up her share.
    In answer to the bill of review, Starke and wife did not admit that the executor had really incurred the expenses amounting to 371. 14s.; and alleged that his demand of commissions, if allowed, would be far short of the interest on the large balance in his hands, which interest ought to have been decreed against him. They admitted that the testator left nine brothers and sisters, but alleged that William Sheppard’s share was to be equally divided among the eight survivors; because their father, Benjamin, who inherited that share, was since dead, and had, by his last will, directed the residue of his estate, (in which his right to the said share was included,) to be so divided. They did not admit the account exhibited by the executor, for 571. 7s. lid., as aforesaid, to be just; except 171. 11s. for wedding clothes; part of the remaining charges in the said account being dated at a time when the said Elizabeth was ahout 12 or 13 years of age, and while her father was living; and the whole of them before she- attained the age of 17; alleging, that she had a guardian after the death of her father, who left her property for her maintenance; that she lived with her mother, with whom Philip Sheppard, the executor, also lived, &c.
    A general replication was filed, and Commissioners to take depositions were awarded, in October, 1801. In October, 1805, on the motion of Starke and Wife, the Court directed one of its Commissioners to examine, state, and settle, and to the Court report, all accounts between the parties. In obedience to this order, the Commissioner, being prevented, by the executor’s refusing to produce his vouchers, from going into the administration account de novo, contented himself with reforming the same, by giving the executor credit for commissions, (as a compensation for his trouble and expense,) to the amount of 1731. 12s.; (not allowing the 371. 14s.) by making a just debit to the estate for money paid in ^satisfaction of a legacy to the widow; and by charging the executor with interest on the balances which annually remained in his hands, “not from the respective dates at which he received the moneys of the estate, but from dates at which he closed his annual accounts; whereby he had the use of considerable sums, during the greater part of each year, without interest:” whereupon it appeared, that a balance of 9101. 15s. lid. was due from the executor to the estate. The Commissioner conceived it unnecessary to divide the said balance into nine parts; “there being a sufficiency of personal estate of Benjamin Sheppard, the father, to discharge his debts; the part to which he was entitled by inheritance from William, his son, being therefore not wanting to pay them; and the widow of the said Benjamin relinquishing her claim.” He therefore proceeded to state the claim of ■ Starke and wife, as entitled to one eighth part in her right, and to another eighth by an assignment or order, in their favour, drawn by Edmund James, in right of his wife Susanna.
    In stating the first of these claims, the Commissioner gave Philip Sheppard credit by 171. 11s.; being so much of the account, annexed to his bill of review, as was for wedding clothes furnished by him to Starke’s wife; and disallowed the rest of thp said account; he charged him, as executor, with the sum of 191. 10s., to make up her share of the slaves as aforesaid; with interest on that sum from the 3d of November, 1795; with '1131. 17s. as one eighth part of the above-mentioned 9101. 15s. lid.; and with interest thereon from the 3d of April, 1801; making the balance due to Starke and Wife, in their own right, amount to 1471. 10s. 2d., on the 3d of January, 1806; bearing interest on 1181. 14s. 6d. (part thereof) from that day.
    In stating the administration account, the interest due upon the balances of the respective years, was carried into the account of the succeeding years, so as to increase the ‘amount of the subsequent balances, on which interest was charged. And payments were applied to the discharge of the interest in the first place. A balance of 561. 14s: 9d. was stated as due on account of Edmund James’s assignment; of which 451. 17s. carried interest from the 3d of January, 1806.
    To this report sundry exceptions were filed, but overruled. And, on the 6th of September, 1807, the Chancellor decreed, * ‘that the said executor, out of the estate of his testator in his hands to be administered, pay, to the said Starke and Wife, 2041. 4s. lid., with interest on 1641. 11s. 6d., part thereof, from the said 3d day of January, 1806, and costs; without directing bond and security to be given to answer future claims against the estate:” to this decree, a writ of supersedeas was awarded by a Judge of this Court.
    Wirt, for the appellant,
    (after observing that none of the legatees, except Elizabeth Starke and Philip Sheppard, were parties to the original bill, and that the plaintiffs claimed, in that bill, only Elizabeth’s eighth part, saying nothing of the assignment by Edmund James, or of their right to William Sheppard’s share,) proceeded to rely on the following points:
    I.Proper parties to the suit were wanting.
    1. The other claimants on the residuary fund should have been parties, for the purpose of avoiding multiplicity of suits; the rule being, that, although the claimant of a pecuniary legacy may sue alone, all the residuary legatees must be parties to a bill for a share of the residuum, 
    
    2. William Sheppard’s personal representative should have been a party. It is true that Philip Sheppard (the defendant) was his administrator; but he was not sued as such; and it was certainly wrong to draw out of his hands William’s dividend, without giving him an opportunity to establish his set-offs, (which, according to his ^exceptions to the Commissioner’s report, appeared considerable, ) against the estate of the said intestate.
    3. Austin Morris, executor of Benjamin Sheppard, who was heir of William, is also a proper party. In his deposition filed in this cause, he claims, in his capacity as executor, the balance due from Philip Sheppard, as administrator of William.
    II. The decree is wrong in confirming the Commissioner’s last report.
    1. The dividend of Edmund James ought not to have been decreed, upon his assignment. The executor had a right to demand bond and security from Edmund James, to answer debts accruing thereafter. Besides, James was himself a debtor to the executor.
    2. Mrs. Starke was not entitled to draw her own dividend, without paying what she owed on account of the articles furnished ' her before her marriage. The executor maintained and clothed her three years after her father’s death. She lived with him, and, in consideration of the services" she rendered by needlework, he charged her nothing for food and raiment generally, but only for money advanced for substantial and necessary purposes; such as cash paid for inoculation, to a midwife for attending a negro woman, &c. The deposition of Austin Morris says, she admitted (since her marriage) the account to be just. In a case like this, her acknowledgment (though made by a feme covert) ought to be received as evidence; because they who are seeking equity ought to do equity.
    3. interest i-s not properly charged on the balances from the end of each year; since the executor was continually paj'ing current claims, as appears from the account.
    4. The Commissioner ought to have opened the administration account again ; the order being only to settle the accounts between the parties.
    Munford, for the appellees.
    The objection, for want *of proper parties, ought not to be supported, when it is made, for the first time, in the appellate Court, and it does not appear that additional parties are requisite to the justice of the case. Such objection might have been made, in the Court below, by demurrer,  or by plea,  But this was not done. The defendant to the original bill consented to render the account of his administration, and to have a settlement with the parties now before the Court; and even in his bill of review he made no complaint that proper parties were wanting. The Chancellor’s decree directed a division among all the legatees, in the same manner as if they had been parties; evidently, regarding them as such; probably, because they were all named in the bill. It appears probable, too, that they considered themselves parties to this suit; since they brought no other for satisfaction of their claims. The appellate Court ought, therefore, to presume that the executor on the one side, ana the several legatees on the other, were content to abide by the settlement of the administration account, intended to be had, in this suit, for the benefit of all parties interested. The maxim that consent takes away error, emphatically applies in this case. Philip Sheppard had every opportunity he could have desired of establishing, before the Commissioner, his set-offs, as adminis-’ trator of William Sheppard; but he exhibited no proof. His exceptions, on that ground, were therefore properly disallowed. The claim of Austin Morris, as executor of Benjamin Sheppard, was considered by the Commissioner; but, very correctly, he was of opinion, that the money ought not to be paid over to him, merely for the purpose of his paying it back to the legatees; there being no debts of his testator to which it should be applied; and the widow relinquishing her claim. Surely, in such a case, there can be no reason for withholding the money from the legatees in the first instance.
    2. As to the allowance of Edmund James’s assignment; the prayer, for general relief, at the conclusion of *the original bill, was sufficient to comprehend it. If not, it will, nevertheless, appear in the record, that that claim was demanded and recovered bj' Starke; and this will be a bar to any future suit for the same thing, by James himself, or his assignee. A Court of Equity ought to regard the substantial merits of the case, and not to sacrifice justice to formal and captious objections. There could be no reason for requiring bond and security to be given by Edmund James, or the other legatees; because the executor did not require it in his answer to the original bill. He might, therefore, be considered as waiving such demand.
    The set-off claimed by him, on account of a bond given by James, for property purchased at the sale of the estate, is allowed by the Commissioner in his report; after deducting which, the balance of S61. 14s. 9d. appears to be due; so that Mr. Wirt is mistaken in saying that James was a debtor to the executor.
    The claim of the executor, for articles furnished Mrs. Starke before her marriage, was rejected by the Commissioner for very good reasons set forth in the report. Mr. Wirt is mistaken in supposing that she lived in his house. The fact, as stated, is, that she lived with her mother; and the advances made were such as an affectionate brother would naturally make, as presents, to his sister, who was then a young girl. The wedding clothes were allowed on the ground of the admission of her husband; but evidence of her acknowledgment when a feme covert, that the account was just, could no more bind him, than her assumption would.
    3. The mode of charging interest, in the administration account, on the balances due at the end of each year, was, in this case, highly favourable to the executor; since it appears, that “he had the use of considerable sums, during the greater part of each year, without interest;” and, if it was not strictly correct to carry the interest, due upon each balance, into the accounts of the ensuing year, it will be found, on calculation, that this *error of the Commissioner, (if it was one,) makes so slight a difference in the amount due, that it ought not to be regarded as sufficiently important to shake a decree, by which a controversy, so tedious and troublesome, will be settled.
    4. The executor, having filed a bill of review to set aside the original adjustment of his account, in some respects, in which he considered it injurious to himself, was bound, by the principle, that he who seeks equity must do equity, to permit such alterations as were necessary to do justice to the other party. The Commissioner therefore rightly understood the order as authorizing him to go into the accounts, generally; as well between the executor and the estate of his testator, as between him and Starke and Wife. But, in fact, the obstinacy of the executor, in refusing to produce his vouchers, prevented the order from being carried fully into effect. The account was not opened de novo, but only reformed in some particulars.
    It may be said, however, (as the executor, in his exceptions, contends,) that he should not have been charged with the sum of 191. 10s., to make up Mrs. Starke’s share of the slaves; part only of which share she received. He insists, that he was not responsible for the surpluses, payable from certain distributees who received too much, to others who received too little. But this cannot be right. It was his duty, as executor, to make the division equally, and, therefore, not to deliver to any one a negro valued at more than his share, until such legatee should have paid the surplus, either to, or for the benefit of, the legatee, or legatees, to whom the same was payable. The object of the application to the Court of Chancery, for a division, was to settle the controversy, and not to give birth to a multiplicity of other suits, which might be necessary, if the legatees were to have recourse against each other for parts of their respective shares; especially, in this case, in which the Commissioners did not designate any particular person, or persons, ’‘to whom the legatees, who received too much, were, respectively, to make payment. Of course, it was intended by them, that payment of the several surplus sums should be made to the executor, and by him to the legatees respectively entitled to satisfaction for deficiencies. Of this, in his answer to the original bill, he seems sensible; for he holds himself at liberty to charge the complainants with the negro they received; from which it is evident that he considered them as having received that negro of himself.
    Hay, in reply.
    Objections for want of parties may be made in the appellate Court, though not suggested in the Court below,  Mr.. Munford says, that a defendant may waive this objection. I admit he may, if he please; but the question is, whether Sheppard’s executor has waived it, or not. There is nothing in this record showing that he has. The decree, therefore, must be reversed for the want of proper parties.
    But the Court may examine the record to settle other points.
    The plaintiff must recover, according to the allegations in his bill,  Here, the plaintiffs recover the share of Edmund James, and part of the share of William Sheppard; neither of which is mentioned in their bill. Their claim, as to William’s share, is not against the executor of Joseph Sheppard, but of Benjamin, who was heir of William. Benjamin Sheppard might have died largely indebted; and whether such was the case or not, does not judicially appear; the mere assertion of the Commissioner being not satisfactory.
    The mode of charging interest, adopted in this case, is wrong in principle. It is a hardship that an executor should be made liable for interest, when he has not made use of the money,  The only cases, in which he ought to pay it, are where he appears to have made it, or has retained money, for a length of time, when he might have put it to interest for the benefit of the estate. But, at any rate, if charged against him on the balances at the *end of each year, it “ought to be carried to the account of the succeeding years, in order to deduct the same from the payments made in such succeeding years.”
    
    
      
      Decrees — Reservation for Future Interposition of Court — Effect on Finality. — In subsequent cases, it is said that, though the decree in the principal case contained a reservation for the future interposition of the court, it must have been regarded as a final decree, else the court could not have entertained a bill of review as regular and proper. See Harvey v. Branson, 1 Leigh 123, 124; Cocke v. Gilpin, 1 Rob. 38, 44.
      As to proceeding by notice, the principal case is cited in Jones v. Hobson, 2 Rand. 487; Dabney v. Smith, 5 Leigh 19.
      See further, monographic note on “Decrees” appended to Evans v. Spurgin. 11 Gratt. 615.
      Same — Final—What Constitutes, — On this subject, see the notes referred to in foot-note to Templeman v. Steptoe, 1 Munf. 339. The principal case was cited on the subject in Royall v. Johnson, 1 Rand. 427.
    
    
      
      Bill of Review. — A bill of review forms no part of the proceedings in the original cause. It is allowed only after the suit is completely ended. It differs in this from a petition for a rehearing which may be allowed before the signing and enrolling of the decree, as it does also from a supplemental bill in the nature of a bill of review which supposes the cause to be still existing, and is received and incorporated into that cause as a part of it; and the orders made upon it are taken and considered as orders in the original pending cause. Claytor v. Anthony, 15 Gratt. 526, citing principal case; Bowyer v. Lewis, 1 Hen. & M. 554; Ellzey v. Lane, 2 Hen. & M. 588.
      See further, monographic note on ‘ Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649.
    
    
      
      §Chancery Practice — Want of Proper Parties — Effect in Appellate Court. — It is a general rule in equity that all persons interested in the subject-matter involved in the suit, who are to be affected by the proceedings and result of the suit, should be made parties however numerous they maybe, and if they are not made parties, and their interest appears upon the face of the bill, the defect may be taken advantage of either by demurrer or upon the hearing; andif it appears on the face of the record that the proper parties are wanting, the decree will be reversed by the appellate court unless the objection was waived in the court below. Pappen-heimer v. Roberts, 24 W. Va. 708, citing the principal case, Clark v. Long, 4 Rand. 451, and Hill v. Proctor, 10 W. Va. 59.
      To the point that, if it appear on the face of the record that proper parties to the suit are wanting, the decree will be reversed, unless the objection was expressly waived in the court below, the principal case is also cited in Clark v/ Long, 4 Rand. 453; Armen trout v. Gibbons, 25 Gratt. 376; Dabney v. Preston, 25 Gratt. 842; Sillings v. Bumgardner, 9 Gratt. 275; Lynchburg Iron Co. v. Tayloe, 79 Va. 676; foot-note to Clayton v. Henley, 32 Gratt. 66; Hinchman v. Ballard, 7 W. Va. 187; Hill v. Proctor, 10 W. Va. 78; Dower v. Church, 21 W. Va. 50; Moore v. Jennings, 47 W. Va. 181, 34 S. E. Rep. 796.
    
    
      
      Same — Suit for Division of Residuum of Estate-Parties. — In general one distributee cannot maintain a suit to recover his distributable share without making the other distributees parties. Sillings v. Bumgardner, 9 Gratt. 274, citing the principal case. See the principal case also cited in Rexroad v. McQuain, 24 W. Va. 35; foot-note to Sillings v. Bumgardner, 9 Gratt. 273, quoting from Rexroad v. McQuain, 24 W. Va. 35; Snider v. Brown, 3 W. Va. 146.
    
    
      
      Same — Prayer for General Relief. — Under a prayer for general relief, the plaintiff cannot recover a claim distinct from that demanded or put in issue by his bill. Piercy v. Beckett, 15 W. Va. 452, citing the principal case. See principal case also cited in Hanby v. Henritze, 85 Va. 184, 7 S. E. Rep. 204.
      
    
    
      
      Executors — Decree against — Form.—It is a settled rule in equity that wherever a balance is found in the hands of an executor or administrator, the decree shall be de bonis propriis. and, in such case, a decree de bonis testatoris will be reversed. Templeman v. Fanntleroy, 3 Rand. 446, citing the principal case. To the same effect, the principal case was cited in Franklin v. Depriest, 13 Gratt. 272. See also. Barr v. Barr, 2 Hen. & M. 26; monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Sarae — Accounting and Settlement — Payments to Be Applied to Discharge of Principal. — In executorial accounts, both in Virginia and West Virginia, the payments are applied to the discharge of principal and not of interest, so long as any principal is due; and the interest is brought into the account only at the close of the transaction. Anderson v. Piercy, 20 W. Va. 326, citing the principal case. See further, foot-note to Handly y. Snodgrass, 9 Heigh 484; footnote to Burwell v. Anderson, 3 Heigh 348; mono-graphic note on “Executors and Administrators” appended to Rosser v. Depriest. 5 Gratt. 6.
    
    
      
       Same — Distribution of Residuum — Refunding Bond. — The statute, 1 Rev. Code 389, § 58, declaring that an administrator should not be compelled to make distribution without a refunding bond has been extended by judicial construction to executors. Mosby v. Mosby, 9 Gratt. 599, citing principal case.
    
    
      
       Note by tbe Reporter. In such case, if tbe Commissioners were to designate tbe legatees whose allotments are deficient, as the persons to whom the payments are to be made by those responsible for surplus sums; would it stillbe tbe duty of the executor to withhold the slaves, until payment of the money? or would‘the legatees be compelled to look to each other for satisfaction? and if any of them should make away with the property, and prove insolvent, what would be the remedy? It seems to me, that, in all such cases, the slaves ought not to be delivered to any legatee, from whom a surplus is due, until it be paid, or secured, to the satisfaction of the legatee or legatees, to whom the same is payable; unless such legatee or legatees, assent to such delivery without security. But if the Commissioners themselves deliver the slaves according to their allotment, without requiring the money, or security, and without the assent of the legatees to whom the surplus sums are payable, I conceive the executor would not be responsible. But the remedy for the injured legatees would be by excepting to the report of the Commissioners, and preventing a confirmation of the division made by them; or by moving the Court to compel the other legatees to pay the money, or to give security, as might seem equitable.
    
    
      
       Coop. Eq. 186, 3 Bro. OR. cases, 865.
    
    
      
       Coop. Eq. 185.
    
    
      
       Id. 389.
    
    
      
       Richardson’s Executor v. Hunt, 2 Munford, 148.
    
    
      
       Coop. Eq. p. 5, Wyatt’s pr. res'. 57.
    
    
      
       2 Fonb. 184, note (p.)
    
    
      
       Granberry's Executor v. Granberry, 1 Wash. 219.
    
   Friday, March 6th, 1812, the president pronounced the following opinion of the Court, consisting of Judges Fleming, Roane, Brooke, and Coalter.

“The Court is of opinion, that although either of the parties to the original decree pronounced in this cause, might, in a summary way, have resorted to the Court of Chancery for its further interposition, if deemed necessary, (under the special reservation in the said decree contained,) they might also proceed by bill, as was done in the present instance; that mode being equally justified by the terms of the reservation aforesaid, and beneficial to the parties; and that a final decree having been pronounced in, and upon, the charge made in the bill aforesaid, it was competent to the appellant to evoke the same, by way of appeal to this Court. But the Court is of opinion, that both the said decrees of the Superior Court of Chancery are erroneous, in the following particulars: first, In proceeding to decree in the cause without making the other distributees of the estate of Joseph Sheppard, deceased, including the appellant, in his character of administrator of William Sheppard deceased, (one of those distributees,) as also the executors of Benjamin Sheppard, the father and heir, as is suggested, of the said William Sheppard, parties to the said suit; the same being necessary, not only on the ground of doing complete justice between all parties, and of avoiding a multiplicity of suits, but also, for the purpose of enabling the appellant to establish his just discounts, if any, against such last-mentioned parties respectively : secondly, In decreeing to the ap-pellees a sum of money, in the character of assignee of Edmund James’s share of the said Joseph Sheppard’s estate, and in that of distributee of William Sheppard, deceased, when neither of the said claims are demanded, or put in issue, by the bill: *an&, thirdly, in confining the recovery, in the said decrees, to the goods of the said Joseph Sheppard, the intestate, instead of making it the proper debt of the appellant, his administrator; the sum so decreed being established as due by him on account of his administration of the estate aforesaid.”

“The Court is further of opinion, that the said first decree is also erroneous; first, in decreeing the sum therein mentioned to be distributed in favour of persons not parties to the said cause; secondly, in not ascertaining, particularly, into how many parts, or portions, the said sum was to be distributed; and, thirdly, in not allowing the appellant his commissions for administering the estate aforesaid, at the same time that it refused payment of an account for his necessary expenses concerning the same. And the Court is further of opinion, that the said last decree is also erroneous; first, in carrying the interest, due upon the balances of the respective years, into the accounts of the succeeding years, thereby converting that interest into principal, and making it bear interest, instead of letting the balances due at the end of each year, as aforesaid, (exclusive of such interest,) carry interest up to the time of payment; and also in applying the payments to the discharge of the interest, and not of the principal, contrary to the rule settled by this Court in the case of Granberry against Granberry; which interest, the Court is of opinion, ought to be paid by him, because it appears there were considerable balances in his hands at the end of each year, which, under the circumstances of this case, it was improper in him to have retained; and, secondly, in omitting to compel the appellees to give bond, to refund, in cases of debts af-terwards appearing against the estate, according to the provisions of the act in such case made and provided.”

*“It was therefore decreed, &c. that both decrees be reversed with costs, and that the cause be remanded, for the purpose of making the parties, deemed necessary as aforesaid; of amending the bill, so as to embrace, and be commensurate with, the whole subject now decreed as aforesaid; and to be finally proceeded in pursuant to the principles before declared.

“And, for the purpose of preventing further litigation, in a cause already much protracted, the Court is induced to add, that it approves the principles of the last decree; except as is before excepted; and, particularly, of the rejection of all the articles contained in the appellant’s account against the female appellee, while an infant and unmarried, (except the items for wedding clothes, admitted by the other appellee;) the same being neither established by testimony, nor, probably, of a character, under all the circumstances of the case, to form a just charge in the present instance. The Court also approves the allowance in this case of a commission of five per cent, in lieu of all expenses; as allowed in the report made in this cause ; the same being properly charged, upon the sum received in each year, and deducted, in stating the balances at the end thereof. ’ ’ 
      
      Note. The words of the act of Assembly apply only to an administrator, not an executor. — Note in Original Edition.
     