
    West's Ex'x. vs. Hall.
    Appeal from a decree of tbe Court of Chancery. The cause, which is fully stated in the opinion delivered by this court, was argued before Chase, Ch. J. and Buchanan, Nicholson, and Fable, J.
    W II by hh win bequeathed a legacy to W 2-1 if, the complainant, and appointed i> W and i> TV J his exeeutois S \Yacted as such executor, and rOSW&A'ct Itunstí’ifof the personal estate. TV H also by his will desised to S TV I sundry tracts of •land, which he inside cham-able with TV JX H’s legacy in case the personal (state should be delicient. S TV never passed any account of the personal estate. W H if hi might suitat »<«w 1m bis legacy, but not beinj*’ abb- tt» prose asset-', his suit was dismissed. S W is dead, at.d by his wih appointed U TV bis executrix, who acted as -uch,ard possessed herself of thepmonal estate of S TV more than sufficient to pay W H !i\ legacy. Hid ii’ chancers by V, Ji H. a^amst H V executtix of S TV, and S TV J, chura;.ng- the above facts- and ih.-l TV H lei; a largx real and personal estate move than sufficient to pin, ali his debts and legacies. 1 be bill was taffi n/;ro conjdJt&o against II TV, and site appeah d to the court of appeals, held that ii the facts stall d in tiie Inti sue not Mtffieh m to entitle tin cota plan.ant to the relief pinned. hj* cannol it sort to tbe an*r er of ihe defendant, the proof taken in the any extraneous matter, to 'upply th«“ tufeeb ii. the eíun.exs eomained in the bill, 'ihe bill diflurasir/ye th?<t the personal cs-tat” tn TV H was sufficient to pay the debts and legacies. It chained in at tlie 1 eal '1110 personal estate « ere sufficient. It chained that S TV «xecutor of TV II, |n,ss,-sed h.mseif of the peumial t state oí the deceased to a conúdercíle. a mourn, but it did not state that per-onaí t t-Htte of W fi came to tire hands of the executoi sufficient to pay the debts and it &acn*, It did net state that S TV, the executor. Wasted or misapplied the personal asset1*, so as lo truno a liabili y on bis ex< eutux to the amount so was ted. and to make 1m pei’Mina) < >tate the fund out el which n was 'o be paid ) t did not statu tlnu. sny part of the personal e-tan of TV II came to llu Jis.s ds of H TV exoeutm of S TV. íoery bill in chancery must state sufficient facts to «.¡.title the eomplaicaht to the rent f pvajt d, or relief under the yuteril prryir. 'I h to were not facts ched m tin- bd .sufficient to make*II W, exectivnx of b TT, liable to pay the complainant's legacy T lie bilk to taake her bable, ou^ht to have charged the facts herein bt fore stated. The bill bung substantially defeetwe, the chanta llor.on application, woutd breve granted leave to amend, and the (k fondant must have the amended bill, li JV5 as executrix of S Ws n a* not the legal rt presomative of W ÍL
    
    
      Martin and Shaaff, for the Appellant,
    contended, 1. That the bill ought not to have been taken pro conjesso. 2. That the bill though taken pro confesso, affords of ¡(sell’ no ground for relief. On the. first point, they referred to Hawkins vs. Crook, 2 P. Wms. 556. S. C. 2 Eq. Ca. Ab. 179; and Davis vs. Davis, 2 Atk. 21. On the second point, they cited 2 Bac. Ab. 405, 406. House & Downs vs. Lord Petre, 1 Salk. 311. Morgan vs. Slade, et ux. 2 Harr. & Johns. 38. Mitf. 40, (note;) and Uxbridge vs. Staveland, 1 Ves. 56.
    
      
      T. Buchanan and Magruder, for the Appellee,
    referred to Dep. Com. Guide, 69, and 1 Fonbl. 319.
   Chase, CIi. J.

delivered the opinion of the court. The bill in this case, which was filed by the complainant, (now appellee,) against the executrix of Stephen West, and Stephen West his son, states, that William Hall died in September 1770, having first made his will in writing, wherein he bequeathed £300 sterling to the complainant, William Hall-, that he appointed Stephen li'cst, executor, who acted as such, and possessed himself of the personal estate of the deceased to a very large amount. That William Hall, the testator, devised to the defendant, Stephen West, sundry lands and tenements, and other real estate, which he made chargeable with the complainant’s legacy in case the personal estate should he deficient. The complainant refers to the said will, and makes if part of his bill of complaint. That Stephen West, the executor, never passed any accounts of the personal estate of William Hall, so that the amount of the personal estate could not be ascertained, or whether the same was sufficient to discharge the legacies. That the complainant brought a suit in the general court, which was dismissed at May term 1796, the complainant not being able to prove personal assets came to the executor’s hands sufficient in pay the legacy) That Stephen West, the executor, died in 179C, without having settled any account with the orphans court respecting Ins said administiation, having made his will, and appointed Hannah West, (one of the defendants,) his sole executrix, who acted as such, and who possessed herself of the personal estate of Stephen West, deceased, more than sufficient to pay the complainant’s legacy. That the complainant applied to Stephen West, Hannah West, and the defendant Stephen 11 est, for the payment of the legacy, and they all pretended that William Hall died insolvent. The complainant charges, that IHlliam Hall left a large real and personal estate, more than sufficient to pay all his debts and legacies.

It appears by the will of William ITall, referred to and inade part of the bill, that Stephen If est, the defendant, was made an executor with his father, Stephen West.

Mrst question — Whether on the death of Stephen Prest, the father, the executorship of the estate of William Hall did not devolve on Stephen West, the defendant? Anil if so, secondly , whether the present bill can be supported aga'mst Hannah TPest, executrix of Stephen West? And if it can, thirdly, whether the bill ought not to charge positively and directly that personal assets belonging to the «state of William Hall came to her hands sufficient to pay ihe debts and legacies of William llallí

The bill is taken pro confesso; and if the facts stated in the bill are not sufficient to entitle the complainant to the relief prayed, he cannot resort to the answer of the defendant, the proof taken in the case, or any extraneous matter, to supply the defects in the charges contained in the bill.

The personal estate of William Hall, after payment of debts, was to be applied to the payment of the legacies, and if deficient, the real estate devised to Stephen West, the defendant, was chargeable with the payment of them.

The bill does not charge that the personal estate of Williatn IMl was sufficient to pay the debts and legacies. It charges that the real and personat estate were sufficient, It charges that Stephen West, the executor of iWilliam, Hal!, possessed himself of the personal estate of the deceased to a considerable amount, hut it does not state that personal estate of William Hall came to the hands of the executor sufficient to pay the debts and legacies. It does not state that Stephen West, the executor, wasted or misapplied the personal assets so as to create a liability on his executrix to the amount so wasted, and to make bis personal estate the fund out of which it was to be paid, It does not state that any part of the personal estate of William IMl came to the hands of Hannah West, executrix of Stephen, one of the defendants.

Every bill in chancery must state sufficient facts to entitle the complainant to the relief prayed, or relief under the general prayer. There are not facts charged in the Bill sufficient to make Hannah West, executrix of Stephen West, liable to pay the complainant’s legacy. The bill, to make her liable, ought to have charged the facts herein before stated to be necessary. The bill being substantially defective, the chancellor, on the application of the complainant’s solicitor, would have granted leave to amend, and the defendants must have answered the amended bill.

The court are of opinion, that Hannah West, as executrix of Stephen West, is not the legal representative of William Hall, and that there are. not sufficient facts staled in the bill to charge Hannah West, as executrix of Stephen West, with the payment of the said legacy.

DECEBE HEVEHSED.  