
    Ann Pray, Executrix, J. J. Maxwell, and George Waters Executors of John Pray, Deceased, Appellants, vs. George G. Belt, Trustee, and James P. Heath, pro. ami.
    The testator in his will says, “ whereas my will is lengthy, and it is possible I may hav.e committed some error or errors, I therefore authorize and empower, as fully as I could do my self if living, a majority of my acting ex- .. ccut'ors, my wife to have a voice as executrix, to decide in all cases, in case of any dispute or contention : whatever they determine is my intention, shall be final and conclusive, wlthoj.it any resort to a Court of Jus-tica.” Clauses of this description have always received such judicial construction, as would comport with'the reasonable intention of the testator.' • {679} • :
    Even where the forfeiture of a legacy has been declared tobe the penalty of not conforming to the injunction of a will, Courts of Justice have consid- . ered it, if the legacy be not given over, rather as an effort, to effect a desired object, by intimidation, than concluding the rights of the parities. If an unreasonable use be made of such a bower-so given in a will, one not- fQreseen; and which cóuld not be intended by the testator, it has been considered as a case, in which the general power of Courts of justice to decide on the fights of parties, ought to be exercised. {680}
    'There cannot be such a construction given to- such a clause in a testator’s will,. • as will prevent a party who conceives himself injured by the construction, from submitting his case -to a Court of Justice. A Court must decide whether the construction of.the will adopted by those who are named is the right construction, or the grossest injustice might be doné. {680}
    Where a legacy for which suit is instituted, is given jointly to several-persons in different families, and the legatees take -equally, the- number in neither family being ascertained by the will, all the claimants ought to be brought before- the Court. The right of each individual depends on the number who are entitled, and thja nufnber is a fact, which must be in- ' quired into, before the amount to which any one is entitle'd-can be fixed. If this fact were to be examined'in every case, it would subject the execu-, tors to be harassed' by a multiplicity of suits, and if it were to be fixed, by the first decree, would not bind persons who were not parties. {681}
    APPEAL from the Circuit Court of.the United States for the District of South Carolina.
    /The .appellees, oomplaiiiants in the.Court below, on behalf of Jane Heath, the wife of James P. 'Heath,' and of her children, filed a bill ■ in/the Chancery side, of the Circuit Court of the United States for the District of South Carolina, .against Ann Pray, executrix,' J. J.-Maxwell, and George Waters, executors of the last will of John Pray deceased, for the recovery of a legacy to- which Jane Heath was entitled under the will.
    The clauses of the will of John Pray, brought under the notice and consideration- of the Court,' and exhibited by the record were:
    
      u Item 51. Whereas 1 hold ten bonds, given by John J. Maxwell, payable by ten instalments, the first on the tenth of January next, and the others, on the tenth of January in each.year after. It is my will, and I direct, that'the bonds.payable tenth of January, eighteen hundred and twenty, eighteen hundred and tyventy-one, and eighteen hundred and twenty-two, say the three first, shall be applied in aid of the payment- of my just debts, if any due,’ and in the payment of the legacies by me left. It is bay request that my executors do also apply all funds which I may possess at my decease, as also dividends on all my hank stoek, (-except that part of'dividends which I have directed to go immediately to solme of my legatees,) and. also to apply all moneys due to.me, as soon as collected, and also all .rents and crops 'of rice and cotton; first to pay any debts, and then legacies, any heretofore’ left, or which I may hereafter leave to be paid. It is my will, and I do direct, that my executors do pay -tip the one-half- of all the cash legacies by me left to my relations, out Of the first fund's, they can command from my estate, except those I may have directed to he paid immediately ; and .after they have paid the otte-lialf to my relations, thereafter it is my will that they do pay up in equal proportions, agreeably to'sums,left,, to all my, other legatees; and be it understood, and it is my will and intention, that after they have paid the one-half, to my relations, that they will continue to pay them the other half in equal proportions with my other le: gatees; my-object and intention is, to place them on the same footing with my other legatees, after the payment of 'one-half to my said relations. It is'my will and request, that my executors do pay all my debts and legacies as soon as possible after my death; but' be it explicitly and plainly understood, that no interest whatever .is to be allowed on any legacy by me left to any one of my legatees, as in all probability the resources and funds of my estate will be equal to the payment of my debts and legacies before the three bonds mentioned of John J. Maxwell may-fall due and be-collected. In case all debts and legacies can be paid before the three aforesaid bonds 'can be collected, then, and in that case, whatever balance may remain to be collected on the three aforesaid bonds, principal fin'd interest, it is my will, that,the same shall be equally divided as collected; between, the following persons, share and share alike: To my executors in trust, for the- use and benefit of my aunt Turpin, my- uncle’s'present wife; it,is my intentibn to keep it from being subject to'my uncle’s debts, that I líiave it in trust; in case of no risk,-my executors will pay-it over to my aunt. My god-daughter, Mary Jane Pray Hines, wife of Lewis Hines. • The children of Thomas Mann, by his present wife, as'also Ann and Jane, now in Ne.w-Providence. Any part which the children of Harriet- Mánn, Thpmas Mann’s wife, may be entitled- to, is to be ascertained by the number she -may have, at the tipie' these bonds are collected, and my executors are ready to pay over. In case all is hot applied on my debts and legacies, and if Harriet hath (ahy child after-the payment, then suph child to-1 receive such'proportion .as théother children out of the part' paid, to.- such' a'S she before had or. has .at; the time the same is paid. My executors will be governed in the distribution, by.the number of children .Harriet,has oh-the day. they areoready to make-a distribution,' In case of any:surplus left on said .bonds,-the said children’s parts to.be. paid- to. their, legal representatives, so it is not .-their -father; (I omitted the word, Mann after the words Ann and Jane.above,') and to Richard-R. Etéath, in trust for the .benefit of Jane Heath, wife of James P-' líéath, and .such’ children as she riiay have . when ..that surplus may hi?.collected, ili case-of there being any.”
    “ It is my-wifi, and I direct, that áll my estate, botn real and personal, shall. b.e kept and . continued together; Until alt my. just debts, and legacies are paid,'debts,, if any,, first, and as soon.' after as possible, to be disposed of as hereinafter directed.” .
    “In cas^'of accidents by fire, at anytime-before o.r idler my executors pay toy debts.and legacies,'it is my will that my •wife receive the amount of insurance to aid-in. rebuilding; and in cáse qf accidents by fire on-lots in Nos. ,6-aftd 7, -before my debts and legacies aré paid, it is my will, in such cáse, .that my mtecutors hold aU my estate togetlier, vxiú\ they can add ten thousand. dollars, to .what may -be received on insurance; and they aré requested to put qn -fire-proof-.buildings on said lots, to1 both these amounts,- and if-these sums, are insufficient^ they.are authorized to' raise' any.balance-for erecting.-.proper buildings. On the credit of my. wife:, this] balance,-if any-required, he-it understood;, is to-come out’of my wife’s portion of. mv estate left -her.
    “In cuse,of s]uch an accident, ,if. necessáry; in order not to delay re-building, m-y executors ¡will resort .to a Joan from the bank Or banks. .Whereas there-'is no doubt bút there must he a considerable-surplus fund of thy .estate -by debts due, or crops pU-hand,''or- near made, after my executors -have,paid all mg ■debts,-and.legacies, which, my. wife will eome'in for — if. rhy executor's discover that by such surplus ti- t thé same wilLnot be equal to ten thousand dollars, in that ,casé it is,my will, that they continue1 áll my estate together, Until they can, make up ten thousand, dollars; and. it-is my ..request,'that they, will, aS-soOn as -possible after raising-the aforesaid sum, proceed to put ,up fir.e-prqof buildings on the aforesaid lots.”
    “ Whereas my will is lengthy, and' it is possible I may have .committed some error dr errors. I do therefore .authorize and empower, as fully as I could do myself, if living, a majority of my acting executors, my wife to have a voice as executrix, to decide in all cases, in case of any dispute or contention: what- ■ ever they may determine is,my intention shall be final and con~ elusive, without any resort to a Court of Justice.” '
    The defendants John J. Maxwell, and George M. Waters, in their separate answers allege, “ That, in the month of December, in the year eighteen hundred and nineteen, the defendants, qualified as executors of the will of John Pray, and having as- ' certained that there was a sufficient sum of money to be raised from the crop's which had been made that yearj as also from debts due the estate of said John Pray, the testator, oh bonds, notes, and other securities, which could soon thereafter be realized, to satisfy all the unpaid legacies of the . said testator, commenced a delivery of some'portions thereof to those claiming and entitled under the will. That, in the mean time, after they had commenced a division of the estate of said testator, and before its completion, to wit, on the tenth day of January, in the year eighteen -hundred and twenty, the accident occurred, which had been guarded against by the sixty-first item of the will of said testator, as set forth in the complainant’s bill; and the buildings on lots No. 6 and 7'were destroyed by fire j that, at the time when this event occurred, the debts of said testator, which were small, may have been, and as this defendant believes, were all paid and discharged, but the legacies re-* mained partially unpaid and unsatisfied, although, as this defendant believes, at the time, and as previously stated in this an.swer, there was a sufficiency of funds to be realized from the means already pointed out, to discharge and pay the remaining unsatisfied legacies, and which the executors, when they commenced the division of the estate, as aforesaid, intended to apply to the payment of said unpaid legacies; that, previously, also, to the said conflagration, by which the said buildings on lots No. 6 and 7 were destroyed, the first bond of the said John J. Maxwell had been collected, and applied to the payment of the debts and legacies. That the funds, which were to be realized from the crops, bonds, and notes, as aforesaid, by the executors,-and which had been deemed adequate to the payment of the unpaid legacies, were insufficient for that purpose, and-the payment of the said ten thousand dollars bequeathed to the said Ann Pray in the said sixty-first item of said will, in the event of the destruction of the -buildings on the said lots six and seven, which actually occurred: that the two remaining of the three bonds cf the said John J. Maxwell, which were directed by the fifty-first item of the said will to be appropriated in. aid of the payment of the said debts and legacies, were then resorted to by the executors, from which, in addition to the available e.f* fects already specified, á fund was realized equal to the payment .'of the legacies, and the sum of fen. thousand dollars, '.which was appropriat'ed to the use of said Ann-Pray, as directed, in sixty-first item of said will; that the said appropriation of the two remaining bonds of the said .John J.. Maxwell, was made after the division of the estate had. commented, as.- already shown, but before its completion.
    “ That if theestate of the .said testdtor had beep kept together, after the conflagration aforesaid, a - sufficient time, -funds may have been realized'sufficient to pajtali debts and legacies,.and to meet the aid authorized and. directed for the said Ann Pray; but this defendant -declares that it would have required the estate-to. have been'kept together four or .five years-for this purpose, without-resorting to .the said bonds; in the mean. time, the said bonds wpuld have become, due, and -been realized^ the one being due-on the —day of January, eighteen-hundred, and twenty-one, and. the other on the day of January .eighteen hundred and twenty-two; ■ That ip and by the fifty-first item of the said will, the said -bonds are expressly directed to be appropriated in aid of the payment of the debts and legacies, and.' only to be -distributed among the legatees therein natned, in-the. event of thp debts/and legacies being paid out . of ithe fundsj made subject:by-the will to-that, purpose, before, 'the.said bonds should, becorrife due or could be collected, That if the said estate of the s.aid testator- had been kept together until the necessary- funds for the relief of the ,said Ann Pray, fend the payment of the legacies had . been raised , from the annual proceeds,- the benefit arising to the said Jane Heath and her children, by receiving their proportion' of.the. real estate of said testator devised to them, mult have been delayed four or five yefrs-; whilst,,by the-early division' of 'sai.d estate, they .were greatly benefited, having realized, at that time,fronn,, ^ thi's rneáns three thousand-five hundred dollars.'; And"tKis.defendant admits that the complainants. have applied to the eiecutors of said testator pa the subject.of the'proportion óf Jane. Heath, in said bonds, and to which-they supposed her, entitled. That the division of the estate haying been commenced, and a portion of the property delivered to the deviseesand legatees,and - a fund sufficient to pay the legacies,.and which was'to come into the han ds of the executors, having been reserved .for that purpose, they considered (hem Selves bound injustice to the legatees and devisee's, who had not received their proportion-of the estate, to proceed in the completion of the'division of tlie estate; and therefore conceived the- estate, so far as regarded their power tp- continue it together until the ten thousand dollars could be raised to -relieve the. said, Ann Pray,' from the annual proceeds, as having been in-effect divided.”
    
      2. No answer .to- the bill of the appellees'was' filed by Mrs. Pray.
    The case was heard on the bills an'd answers, and the Circuit Court determined, that the executors had misapplied the proceeds of the bonds of J: J. Maxwell, on which the legacies claimed were • charged; and that-Mrs. Pray would have to refund to the value of the residue bequeathed to her, and, ratea* bly, als.o, according •' to. the interest and income of the property specifically bequeathed to her.- . An' order of reference was made, and thereupon,, the master was ordered to make certain statements of the condition' of the estate, and of other-facts né-cessary. to a final decree.
    • These reports having-been afterwards made by the master, the Circuit Court, oh the 9th of May, 1826, -made the. follow* ing decree: -
    “ This cause came oh to be'heard on'the master’s report, pursuant to a reference at the last term, on .the following points: -1st. A statement Of’the' debts' due- b.y the testator.'' 2dly.' A statement of the pecuniary and other legacies, and how and when paid. Sdly. Of the funds applicable tO'the debts and legacies., 4thly. Of the receipts arid expenditures of the. executrix and executors. ' 5thly.- Of the value of the residue bequeathed- to Mrs. Pray. 6thly. Of the v.alue or' amount of the ' income-, which the estate would, have-produced, had it been kept together specifically.' Of the several amounts-claimed by these complainants, in behalf of- those whom they represent as legatees, and his own views' of - the correctness of-those' claims, with reference to the, principles; on which they, are calculated. . And'he, the said-master, having dul, made and submitted his report upon all the matters so referred to him,, and it appearing from said- report, that the proportion of the funds of the said testator, to which, under hjs will; the complainants are entitled, amounts to ■ the sum of twelve thousand one hundred and eleven dollars, as by reference to said report of file in the registry of this Court will more fully appear..
    '“It is ordered, adjudged and decreed, that George M. Waters, and Jno. J. Maxwell, executors, and Ann Pray, executrix, do -pay to the said complainants, the- sum of twelve thousand one hundred and eleven dollars. Arid. it is further ordered, decreed and adjudged, that- the said sum, when collected by force and virtue of this decree!, be paid into the hands of. the clerk of this.Court, and on the réceipt. of the said sum, he is hereby ordered arid -directed, so . soon ap the same can be;effected, to invest the- said sum in the purchase of United States' stock, or- bank'stock of.the United States’ Bank, as may appear most advantageous to the complainants; and it is' further ordered, .adjudged an.d depreed, that the défendants do pay the costs oí this suit, and interest on the principal sum decreed, to be computed from the service of this' decree. ”
    “ William Johnson.”
    By agreement of counsel, a part of the master’s report was afterwards corrected, and .the number of persons among whom the amount of John J. Maxwell’s bonds were to be distributed, being accurately stated, the sum to which the complainants below were entitled, according to the principles, o’f the decree of the Circuit Court, was found to be 89909, instead of $12,111, as stated in the'report.
    The case was argued by Mr. Berrien for the appellants, and by Mr. Key for the appellees.
    The following points were made by the appellants:
    1. There, is no sufficient evidence, on which to found a decree for any specific sum.
    2. The necessary p'arties were not before- the Circuit Court.
    3. The proceeds of the three bonds of John J. Maxwell, were well applied to the payment of debts and legacies, and. among others, to the payment of the contingent legacy to Ann Pray.
    4. The decision of the executors, is the will of the testator, by the express provision of the will; and cannot be questioned by the legatees.,
   Mr. Chief Justice Maushall

delivered the opinion of the Court.-*-'

This suit was brought in the Circuit Court for the district of Georgia,.by. George G. Belt, the trustee for Jane Heath and her children, who are infants, and by James P. Heath, husband of the said J'ane, and father of her children, against the executors of John Pray, deceased, and Ann Pray, his widow, to.recover a legacy bequeathed to them and others, by the said John Pray-.

The executors resist the demand, on the principle that the bonds for which the suit is instituted, were required to pay the debts and legacies due. from the testator, and to raise the .10,000 dollars to replace the buildings on lots 6 and 7, which were consumed by fire. They also contend, that their-testator has submitted the construction of his will, absolutely, to their judgment, and that their decision against the claim of the legatees,, is final.

The Circuit Court established the claim of the plaintiffs, and decreed to them the proportion.of the .three bonds, which was estimated to be their part.

From this decree, the executors have appealed to this Court.

In argument, several formal objections have been taken to the decree, which will be considered. The question on the .merits, depends on the construction of'the will, The will is very inartificially drawn. .It is . in some parts -rendered, more confused than it would otherwise be, by a' recurrence in different places to the same subject. In item 51, he says, in the first instance, that the three bonds which are the subject of controversy, ‘‘shall be applied in aid of the- payment of.his. just debts, if any due, s .id in the payment of the legacies by him left. ” He adds, - It is my request, that my executors áojalso apply all.fund's which I may possess at my.decease,, as also dividends on all my bank stock, (except that part of dividends which I have directed tq go immediately to some of'my legatees,) and also' to apply all moneys due to me, as soon as collected, and.also all rents and crops of rice and cotton, first to pay any debts, and then legacies,” &c.

The language of this part of the will, in relation to1 these bpnds, shows an intention to apply th'em to debts and.legacies, if necessary; but indicates., we think, the expectation'that it .would not be necessary.- They are-to be applied in aid of the payment of 'his just debts, and in the payment of legacies. They are-then to aid another fund. That fund .is afterwards described in terms, which show it to- be a largerone.' There is some reason to suppose,, from this. part qf the will, that the,fee. three bonds were riot comprehended, in'it, because the testator introduces the enunciation of its. items, by saying “it- is my request that my executors do'also apply all funds,. &C.” Again,-, he assigns as a reason for withholding interest from his legatees, “ that in all probability the- resources and funds of. his estate, will be equal to the payment of his debts an4 legacies, before the three bonds mentioned of John J. "Maxwell, may fall due’ and be collected.”.

This-shows, unequivocally, the belief of -the . testator, that these bonds would not be required for the debts and legacies. He then adds, “in case all debts and legacies.can be paid, before the three aforesaid bonds can be collected, then, and in that casé, whatever balance may remain to be. ¡.collected» shall be equally divided, between the following persons,” &c.

This bequest does not depend on the fact, that the debts and-legacies’ should be actually paid,’before these three bonds were collected, but on the sufficiency .of. the’fund .-for the objecjfc. ■ Should the fund be sufficient, its application. must be made and. whether made, in fact or not, the right, to the bonds vests in the legatees

The testator then proceeds to - say; “It is my will, and I direct that all my estate, both real and personal, shall be kept and ■ continued together, until.all my just- debts and legacies are paid.”

This ■ whole, item,, 51, shows the opinion, that the -profits pf . his estate, including dividends on his stock, added to the debt's actually due at the time, were sufficient for the payment of debts and legacies. Yet his estate is to be kept together till they shall be paid.. The profits are of course to be applied to that object. •If this fund amounted, before the 10th day of January 1820, when the first bond from J. J. Maxwell fell due, to a sufficient sum for. the payment of debts and legacies, the right of the legatees to the three bonds then'vested; — if it was not sufficient on that day, it may be doubted, whether such part of the first bond as was necessary for this primary object, might be brought to its aid immediately. We. suppose it might. A codicil to the will is dated the l-8.lh day of June 1819, and the will and codicil were proved on the 27th of the succeeding month. The executors qualified i, die month, of December'; having, ascertained, they say in their answer, the adequacy of the fund provided for debts and legacies, tiiey commenced the division of the estate.

So far as the will has been considered, it is obvious that the right of the legatees, to whom the two parts of the three first bond's due from Maxwell were bequeathed, was vested. Their right to the first bond may be more questionable. If part of the fund, which was applicable in the first instance to debts and legacies, could not be made available immediately, and the first bond or any part of it.was substituted- for debts which could not be collected, it cannot be doubted that those debts, when collected, ought to replace the bond so substituted. The testimony in the cause-does not show,- with sufficient-certainty, how this fact stands. It is remarkable that this first bond was applied by the executors before the 10th of January 1820, when it became due. They staie this fact in- their answer. But we are decidedly of opinion, that this precipitate appropriation of the bond, could not affect, the rights of the. parties. They must remain, as they would have stood had the bond remained uncollected, til! it became payable.

The contest in this suit would either, not- have arisen, ■ or would have been confined to the first bond, had things remained as they stood before the 10th day of January 1820. But on that day the buildings on lots Nos. 6 and 7, were consumed by fire,

■ In that event, the téstator had directed that his executors áhould, fpr the purpose of replacing the buildings, hold all his estate together until they can add 10,000 dollars to what may be received pn insurance., H'e:adds, “ In case of such an accident, if necessary, in order not to delay. re-building, my executors will resort to a loan from the bank or. banks.” “.Whereas there is no ',doubt but there must bé a considerable surplus fund of my‘estate,, by debts due or crops-on hand, or near ■made, after my executors have paid all my debts and legacies, which my wife will come in for — if my executors discover that by such surplus that the same will not be equal to 10,000 dollars, in that case it is my. will that they continue all my estate together until they can make up 10,000 dollars.”

' Instead of conforming to this direction of the will; instead of keeping the estate together; the executors have applied the remaining two bonds payable the 10th of January 1821, and the 10th of January 1822, to this object.

They say, that'having commenced the delivery of the estate, before this event took place, they thought themselves bound'to complete it; and considered themselves in the same situation as if it liad been completed before the buildings were consumed.

Suppose this opinion to be correct, ought they not also to have considered the- bonds as delivered ? This also was a specific legacy; and after being vested, stands, we conceive, on equal ground with other specific legacies.

These bonds do not constitute the fund on which the testator charges these 10,000 dollars, in the unlooked for event that the surplus of his estate should not .be sufficient to raise it. He does not charge this sum on the principal, but on the profits of his estate; and the wholé is to be kept together in order to raise it. It is obvious from-the whole will, that these bonds do not constitute a part of that surplus, comprehending debts; and in this particular part of it, when he speaks of debts, it is of debts due. No one of these bonds was due at the daté of the .will, or of the death of the testator,

■ It is then, we think, apparent, that the application of these bonds towards raising .the sum of 10,000 dollars, was.a misapplication of assets.

If the estate had really been delivered when the event occurred, the executors ought to have retained their rights upon it, to satisfy this contingent claim, and we presume that the property would have been liable, to‘it in the hands of devisees and legatees.

But the plaintiffs'in error, contend, that ■ should, they have misconstrued the will of their testator, still their misconstruction binds the legatees, because the testator s /s: “ Whereas my will is lengthy, and it is possible I may nave committed some error or errors. I therefore authorize and empower, as fully as I could do myself if living, a majority of my acting executors, my wife to have a voice as executrix, to decide in all cases, in case of any dispute or contention: whatever they determine is my intention shall he final and conclusive without any resort to a Court of Justice.”

Clauses of this, description have always received such judicial construction, as would comport with the reasonable intention of the testator.

Even when the forfeiture of the legacy, has been decfared to be the penalty of not conforming to the injunction of the Will, Courts have considered it, if the legacy be not given over; rather as- an effort to effect a desired object by intimidation, than as concluding the rights of the parties. If an unreasonable use be made, of the power, one not foreseen, and which could not'be intended by the testator, it has been considered as a casé in which- the general power of Courts of Justice to decide on the rights of-parties ought to be exercised.

This principle'must Be kept in view, in construing the clause now under consideration.

The acting executors, and executrix, are empowered, in all eases of dispute or contention, to determine -what is the intention of the testator; and their decision is declared'to be final.

. This power is given; in the apprehension that he may have committed .error, It is tó be'exercised in order to ascertain his intent -in such' cases. It certainly does not include thepowerof. altering the will. It cannot be contended,' that this clause would protect- the executors in refusing to pay legacies altogether, or' in paying to A, á legacy bequeathed to B, or in any other ¡Siam. deviation from the will. In such casé, ,what would be the re--medy of thé injured party! Is he concluded by the decision of the executors, or may he resort to a'Court of Justice? But one answer can b.e given to these questions. So gross a departure from the manifest intent of the testator, cannot, be the result of ah. honest endeavour to find that intent; and must be considered' as a fraudulent-exercise of a power, given for'the. purpose of preserving peace, and preventing expensive and frivolous litigation.

But who is to determine what is a gross ihiscpnstructioh of the will, if. the party who conceives himself injured may not submit his'case to a Court of justice? And if his case may be brought before a Court, must not that Court construe the will, rightly ?

This' is not the only objection which the plaintiffs in error must encounter, in supporting their construction of this clause. The executors have not, we think, this power, unaided by the executrix.. •

.It is given to a■ majority of the acting executors, “ his wife, to. have a voice as executrix.” • Her-participating in the decision, is indispensable to its validity.

‘ If this power was given to her solely, in her character as executrix, it is seriously doubted whether it can be exercised till she assumes that character.

Even had she united with the executors, this would certain-]y be a case which might well be considered as an exception from the general operation of the power. The bonds to which it was applied, are the bonds of one of the executors, and it was exercised by bestowing them on the executrix, instead of the persons to whom they were bequeathed by the testator-

In doing this, the exécutors have plainly misconstrued the will.. The testator had not charged the 810,000, which were to be raised in order to rebuild the houses that were destroyed by fire, on these bonds, but on a different fund. It is, therefore, the very case put, of paying to the executors the legacy bequeathed to other’persons. It may also be observed, that neither of the executors, nor Mrs. Pray, say in their answer, that this diversion of these, bonds to a different purpose from that directed by the testator, was made from a belief that it was his intention, in the'event which had occurred. They refer to the clause, and rely upon it, as if it • had empowered them to do whatever they thought best,' in the progress of their administration;. instead of .doing what, in their best judgment, they believed to be his intention.

But, however correctly the will of the testator may have been construed .in the Circuit Court, and we think it was construed correctly, at least so.far as respects the two last bonds mentioned in item 51.of the will of John Pray, deceased; other objections have been taken to the proceedings in the Circuit Court, which seem to be well founded.

The legacy for- which this suit is instituted, is given jointly to several persons in different families. The legatees take equally, and the.numbers in neither family are ascertained by the.will. Under siich circunfistances, we’ think all the claimants ought to be brought before the Court. The rights of each individual depend upon the number who are entitled, and this number is a fact, which must be inquired into, before the amount to which any one is entitled' can be fixed. If this fact were to be examined in every case, it.would subject the executors to be harassed by a multiplicity of suits, and if it-were to be fixed by the first decree, that decree would not bind per-, sons who were not parties. The case cannot be distinguished from the rule which is applied to residuary legatees.

The bilL filed in this case, does not even state the number of persons belonging to the different families, nor to that family in whose behalf this suit is brought. Nor does it assign any reason for not making the proper parties; It does not allege' that the other legatees refuse to.join, as plaintiffs, or that they fcannot be made defendants.

For this cause the decree must be reversed, and the case remanded to the Circuit Court, that the plaintiffs may amend their bill..

The objections to the report, are not entirely unfounded, and it is not quite satisfactory.

It does not, we think, show with sufficient, clearness, whether the plaintiffs in that Court were entitled to the first bond. But as the case must go back to amend the bill, a new report will of course be made; and if that shows, that the funds of the estate were sufficient to pay the debts and legacies* without applying this bond to that purpose, the plaintiffs below will be entitled to that also.

This cause came on, See., in consideration whereof, It is decreed and ordered by this Court, that the decree of the Circuit Court in this cause be, and the same is hereby reversed and annulled; and it is further ordered, that the cause be remanded to the said Circuit Court, for further proceedings to be had therein, and that the plaintiffs may am'end their bill.  