
    Drake vs. Bayliss, et ux.
    
    Isaac Shelby died, having made his will and appointed John Shelby his executor; John Shelby died, and appointed A. M. Shelby his executor: Held, that A. M. Shelby was the executor of the first testator; yet a'failure to give bond and qualify as executor of first estate, in pursuance of the provisions of the act of 1813, ch. 119, sec. 3, was a renunciation of the executorship.
    Where a testator appointed A his executor and the testamentary guardian of his children, with power to sell property forpaymentof debts, to give property to the legatees as they should marry or come to full age, and to Iteep the balance of the property together and cultivate the farm for the support of the widow and children till the youngest come of age: Held, that after the payment of the debts of testator, the payment of some legacies and the placing the properly on the farm, A held the property as testamentary guardian and not as executor.
    Isaac Shelby died in 1813, having made his last will in August, 18 Í‘2, in the following words, to wit: “It is my will that my executor keep all of my property of 'every description together on my plantation for the support of my wife and children, except such as he may deem sufficient to pay my just debts and funeral expenses; and it is my will that my executor divide my property asnear equally as can be done, between my wife and my ten children,Henry, John, Priscilla, Evan, Letitia, Jenkin W., Polly, Sally, Tennessee and Alfred, at the time my youngest children come of age; I wish him to divide to my respective children, as they may marry or come of full age, at his discretion, reserving a sufficiency for the support and education of my youngest ones and wife, as he shall think most advisable from time to time, as such events of that kind may happen. It is further my will, that my executor, at the time my youngest child comes of ago, divide my lands or sell them, so that they can be equally divided amongst them all. It is my will that my brother, John Shelby, be guardian for all my children until they come of full age, and he is hereby appointed sole executor of this my last will,” &c.
    This will was duly proven in the county court of Montgomery, in which county the decedent resided at the time of his death, and John Shelby gave bond for the faithful performance of his duties as executor, and qualified according to Taw. John Shelby took the property into his possession, paid the debts, as far as appears on this record, and properly managed the estate in all things; he placed the slaves on the farm on which the deceased resided and cultivated it; he delivered to Henry Shelby, one of the oldest children, two slaves, as a portion of the property coming to him from his' deceased father’s estate. In this condition of things, in the year 1818, John Shelby, the executor, died, having previously made his last will and testament, appointing Alfred M. Shelby and others, his executors. A. M. Shelby gave bond and qualified as executor according to law. The others did not give bond, or in any manner take upon themselves the office of executor. The will -of John Shelby made no mention of the estate of Isaac Shelby, deceased, or the executorship of that estate. It does not appear that Alfred M. Shelby ever took upon himself the execution of any of the trusts of the will of Isaac'Shelby, deceased, or in any manner assumed the management or control of the property of said Isaac.
    In the month of February, 1821, the widow of Isaac Shelby, deceased, and John Shelby, the son of said Isaac, sold the negro boy, Carter, the subject of this suit, for a full and fair consideration, to Hush M’Clure, and the boy come by . . . . _ 5__ __ .. . , too/% to the hands of W. H. Drane about the year lodU.
    Mary Shelby, one of the daughters of Isaac Shelby, was ap0Uj. eight years of age at the time of her father’s death, and intermarried with Joel Bayliss in the year 1823; In the year 1836, Joel Bayliss and his wife applied to the county court of Montgomery county for letters of administration, de bonis non, upon the estate of Isaac Shelby, deceased, with the will annexed, which were granted by an order to the following effect:
    “It appearing to the satisfaction of the court that Isaac Shelby, deceased, died with a will, and had appointed John Shelby his executor, who died without administering or settling said estate, and that twenty years have not passed since the death of said Isaac Shelby; and it also appearing that Mary Bayliss is a child and distributee of said Isaac Shelby, and was an infant at the time of her father’s death; on motion, it is therefore ordered by the court, that Joel Bayliss and his wife, Mary Bayliss, be appointed administrator and ad-ministratrix of her deceased father’s estate, with the will annexed, and that they enter into bond and security satisfactory to the court, and qualify according to law.”
    Joel Bayliss and wife, Mary, as administrator and admin-istratrix, instituted an action of detinue in the circuit court of Montgomery county on the 10th day of April, 1837, against Walter H. Drane, for the purpose of recovering the slave Carter, sold to M’Clure in February, 1821,
    The defendant pleaded: 1. Nan detinet. Upon this plea isshe was taken.
    2. That the.supposed causé of action did not accrue at any time within three years next before the bringing of this suit. To this plea there was a general replication and issue.
    3. That said Isaac Shelby, upon whose estate the said plaintiffs claim to be administrator and administratrix, departed this life in 1813,- and that said plaintiff did not administer up-bn the estate of said Isaac till the year 1835, more than twenty-one years after the death of said Isaac, and more than three years after the passage of the act of 1831 limiting the time for the grant of letters of administration on decedent’s estate.
    4. That the plaintiffs are not the administrator and admin-istratrix of the said Isaac, deceased, with the will annexed; issue was joined on this plea.
    5. That plaintiffs’ supposed cause of action did not accrue at any time within three years next after the termination of the twenty years given by the legislature in 1831, ch. 24, limiting the time within which administration may be granted upon the estate of deceased persons.
    6. That said plaintiffs’ supposed cause of action did not accrue at any time within three years next after the termination of the twenty years allowed by the legislature in 1831, ch. 24, limiting the time within which administration may be granted on the estate of deceased persons, and the passage of the act of assembly of this State in 1835, ch. 86, making it lawful for administration to be granted at any time within thirty years from the death of the testator or intestate to any person entitled to a distribution of the estate of said testator or intestate, who were infants or femes covert at the time of the death of the testator or intestate.
    To the third, fifth and sixth pleas of the defendant th,e plaintiffs filed a special replication, in which they averred “that plaintiffs were intermarried before the passage of .the act of 1831, ch. 24, sec. 3;- that they are yet man and wife, and that said Mary, alias Polly Bayliss, is the daughter pf said Isaac Shelby, deceased, and one of his next of kin and legatees and distributees, and that she was an infant at the death of her said father, and that her father, Isaac, made and published his last will and testament, in which he appointed John Shelby his executor, who qualified and acted as such till his death in 1818.”
    The defendant demurred to this replication, and the plaintiffs joined in demurrer.
    The cause was continued till the May term, 1838, at which time the honorable James Rucks, the presiding judge, overruled the demurrer to the plaintiffs’ replication, and rendered judgment upon the issues of lawin favor of the plaintiffs. The issues of fact were then submitted to a jury of Mont-gomcry county upon the above stated facts. The court ° ^ ^ 1 charged the jury that if they found that the negro, Carter, belonged to Isaac Shelby, deceased, at the time of his death, an(j was no| s0}c{ or disposed of by his executor, but was left on the, farm of said Isaac at the death of his executor, John Shelby, said slave belonged to the estate of said Isaac, and that his widow and son had no. right to sell him to said Hugh M’Clure, that said sale was void, and that Drane would derivo no title to the said negro by the purchase of Hugh M’Clure, but that the title to said slave was vested in the plaintiffs as administrator and administratrix of John Shelby, deceased, upon the.grant of letters of administration, with the will annexed, of Isaac Shelby, deceased, to them by the county court of Montgomery county, in June, 1836. The court also charged the jury that the statute of limitations did not commence running in favor of the defendant, or those under whom he. claimed, until the appointment of the plaintiffs as administrator and administratrix, as aforesaid, in June, 1836; that the appointment of Alfred M. Shelby, in the last will and testament of John Shelby, deceased, as executor, his suing out letters testamentary upon the estate of John Shelby, deceased, his giving bond and taking oath according to law to execute, the will of the said John Shelby, deceased, did not constitute him executor of the last will and testament of Isaac Shelby, deceased, nor authorize him to sue for the recovery ofsaid slave,Carter. The court further charged tlie jury that the grant of letters of administration, to the plaintiffs, with the will annexed, of Isaac Shelby, deceased, was legal and valid,, and authorized them to sue as such. The court further charged the jpry that the plaintiffs’ action was not barred by, the statute of'1831, ch. 24, sec. 3.
    Upon this charge the jury returned a verdict on the, issues of fact in favor of the plaintiffs for the value of the slave, six hundred dollars,and the. hire of him whilst in Drane’s possession, from 1830 till the commencement of suit, two hundred dollars. A motion was made to set aside- this verdict, but was overruled, and judgment rendered in conformity with the verdict, from which the defendant appealed in error to this court.
    
      
      Boyd, for plaintiff in error.
    We contend that upon the death of John, the sole executor of Isaac Shelby, deceased, his executor, Alfred M. Shelby, upon his qualification as such, became ipso facto the representative of Isaac Shelby, the first testator. I Will, on Ex’rs. 132: Com. Dig. 4, tit. Administration, G: 1 Salk. 308. The executor of an executor may execute the will of the first testator or not, as ho pleases, although he prove the will and qualify as the execütor of his own immediate testator. 1 Will, on Ex’rs. 148. Having a right to execute the first will, he must be cited to appear, or he must refuse to qualify, before the court can grant letters of administration de bonis non to another. I Wil. on Ex-. 289. If no'bond was given by Alfred M. Shelby binding him to administer the estate of Isaac Shelby, deceased, that of itself would not make his letters testamentary void, but the grant being sufficiently broad to give the authority to act, that authority would continue till he was duly cited and required to give bond in strict con'forhaity With the statutes. 1 Dev. and Bat. 27. If the property under the will of Isaac Shelby would be transmitted to another by virtue of any administration upon his estate granted after the death of the first executor, then would Alfred Shelby have been entitled; and he not having commended suit within three years after the plaintiff in error took possession his remedy is barred by the statute of limitations. The act of 1823, ch. 119, sec. 3, requiring executors to give bond before they shall presume to enter upon the administration of any estate, refers to an original grant of letters testamentary, and when John Shélby ,, first, find his 'executor afterwards, gave bond, it was a substantial compliance with the terms of the act. When John Shelby collected the debts due to, and paid those due from the estate of Isaac Shelby, and then placed the property on the farm for the support and education of the children, he had fully administered the estate and assented to the legacies, and upon his death there was nothing to go into the hands of an administrator de bonis non. Williams, 844 to 848/ If an executor die after the payment of debts, his assent to the legacies will bo presumed. 1 Rop, Leg. 573: 2 P. Wil. 532: Wil. Ex. 848. In this State the pre-gump^on sj10u]¿ arise at the end of two years. When a legacy is limited to several in succession, an assent to the grst js an assent to all the subsequent legatees. 1 Roper, 570: 1 Dev. Eq. 337: 2 Hawks, 122: 3 Monroe, 282. All the acts required of the executor by the provisions of the will, after the payment of the debts and the placing of the property upon the plantation, indicates plainly a personal trust and confidence in John Shelby, confined to him-as an individual, and will not pass to another by the legal transmission of the office of executor, or to another as administrator cle bonis non. Story on Agency, 13,14,15: Williams on Ex’rs. 629: Sugden on Powers, 177. When the debts were all paid and the effects collected, the executor had a mere power to dispose of the property without any interest in it whatever, and he could not delegate this power of disposition. Sug. on Powers, 176.
    
      Cooks for defendants in error.
    1. Are defendants the legal representatives of Isaac Shelby, deceased? It is an admitted principle of the common law that an executor of an executor represents the first testator. 1 Salkeld, 308: 1 Com. Digest, 357: B. C. 373. But an executor of an executor may refuse to have administration to the first testator. Cro. Jas.- 614: 1 Comyn’s Digest, 374: Palm. 156: 2 Vent. 360: 1 Williams on Ex’rs. 133. The executor, before probate, could collect debts, sell the estate, assent to legacies, bring suits, and do all other acts but declare in court; his powers were almost plenary. I Comyn’s Digest, 340: 2 Bi. Rep. 694: Off. Ex. 49. He could do all this though he was utterly insolvent, for he could not be required to give security. 1 L. Ray. 363: 1 Com. Dig. 338.
    By the laws of Tennessee no executor represents his own testator until letters testamentary are first granted to him by the county court. He is expressly prohibited from so doing by the act of 1715, ch. 48, sec. 4. By the fifth section of the same act, no letter testamentary- can issue until the executor takes an oath to execute the will, and no letters of administration until an oath is taken to discharge the duties of administrator, and bond and security are given well and to administer the estate of the deceased. By the third section of the act of 1813, ch. 119, it is provided that no executor “shall presume to enter upon the administration of any estate whatsoever” until they “enter into bond and security in the same way that administrators are required to do, unless the testator shall otherwise expressly provide.” If the executor, in violation of these legislative restrictions and injunctions, should presume to act, he would be a trespasser and be liable to be indicted. His common law powers are abridged, and it would seem that he could not represent his testator but by and through the order of the county court. 2 Yerg. Rep. 298: Baldwin vs. Buford, 4 Yerg. Rep. 16: 4 Munford’s Rep. 194, Monroe’s Ex'rs. vs. James.
    
    How, then, can the executor of the last testator execute the will of the first? He gives bond and security to execute the will of the last testator, not the will of the first. His bond is the same as an administrator’s bond, (see act of 1800, ch. 19, sec. 3,) and his powers are therefore confined to bis own testator’s estate, and do not extend to the many estates which by the common law he might have the power to administer. In fixing the amount of the executor’s bond the county court never looks beyond the testator’s estate. How could they know what other estates his testator represented as executor? The will would not show it, and there would be no data by which to fix the amount of the bond except by reference to the amount of testator’s estate. Suppose the testator’s estate to be small, say five hundred dollars, yet the testator may have been executor to several other estates worth one hundred thousand dollars, would the securities in the bond be liable beyond its terms, to wit, for the faithful administration of the estate of the testator? Surely not.
    A. M. Shelby, the executor of John Shelby, Was not the executor of Isaac Shelby, deceased, and had no right to sue as such. When letters were granted, with the will annexed, to the plaintiffs, they alone were the legal representatives of Isaac Shelby, deceased.
    2, If the plaintiffs arc the legal representatives of Isaac Shelby, is not the legal title to Garter vested in them? It is ® that the fact that John Shelby took possession of the land and the negroes and worked the negroes on the land, as reqUire¿ by the will, was an assent to the legacies and vested the property in the legatees. This cannot be so. The executor is required to keep all the property of every description in his hands on the plantation of the deceased for the support of the wife and children of the deceased until the youngest child arrive at lawful years. This would make his entering upon the duties of executorship operate as an assent to the legacies so as to divest all title and control of the property out of him as executor, and vest it in the legatees. The attempt to execute the first mandate of the will would destroy his powers of subsequent execution and defeat the intention of the testator;
    But it is urged that after two years of his executorship shall have expired, he shall be considered as holding the property as guardian, and that he shall perform all the acts required of him in the will as guardian and not as executor. The terms of the will utterly forbid such a conclusion. The will directs the executor to keep the property together for the support of the wife and children; but he is not guardian of the wife, and therefore could not perform this mandate of the will in any capacity but that of executor. The will directs that the executor shall, when the youngest child comes age, divide testator’s land and negroes among all the children, of except such property as he in his discretion shall have previously given off. But before the youngest came of age the other children were no longer minors, and his guardianship as to them ceased. He was therefore required to dispose of the property as executor after his authority as guardian had expired as to most of the children.
    Where the executorship is not continued by the terms of the will to any given time or until any event shall happen, but the executor is bound simply to collect the resources of the estate, discharge the liabilities and pay over the residue to those entitled, it might, be contended with some plausibility that the law, after the lapse of two years, might operate ns a transfer of the property and monies to himself as guar dian. The presumption of' such a transfer cannot arise in this case,'because he is directed by the will to hold the ___ erty and act as executor. Dinwoodifs jEx’rs. Vs. Carring-ton, 2 N. Car. Law Rep. 469: Plowden, 521-2, 542-3: Cro. Elk. 347-8,387: Dyer, 277: 1 Roll. Ab. 619: 1 Com. Dig. 357: 1 Lev. 216. '
    This is the common case of the death of an executor without a will transmitting the succession. The legal estate of the testator rests in abeyance until the appointment of an administrator with.the will annexed, and after the appointment it vests in him. 1 Williams on Ex. 628-30: 1 Williams on Ex. 291.
    
      F. B. Fogg, for plaintiff in error.
    When a will is once proved and the- executor is qualified and assume» upon himself the trusts of the will, by the authority of the court of probate, (and in Tennessee gives bond and security,) the Whole personal estate is vested in him, and that interest is continued and kept alive by the will of the same executor, so that the executor of the first executor is to all intents and purposes the executor and representative of the first testator, and jpay be directly so named in legal proceedings. Comyn’s Digest, Administration B, 6, 11: Yiner’s Ab. 63,90,109: Office of Executor, Supp. 140: Plowden, 525: Comyn’s Digest, Adm. G, 1: Powley and Lear’s case, Leonard, 275. A new probate of the original will not be allowed. The power pf the probate court is exhausted. 1 Salk. 309: 1 Williams on Executors, 133, 134, 284. The statute 25 Edward III, ph. 5, enacts “that executors of executors shall have actions of debts, accounts, and of goods carried away of the testators.” 2 Williams on Executors, 628. It is true that an executor of an executor may refuse or renounce the administration of the ■ effects of the first testator; but this refusal or renunciation is necessary to give a court of pro? bate jurisdiction to grant letters of administration. 1 Williams, 148.
    The act of 1835 applies'only to persons entitled to distribu? tion, not to legatees under a will.
    In what respect is the common law or the English statutes that were once in force in relation to the devolution of .the tjle executor repealed by the laws of Tennessee? There is no law repealing them expressly, but it is said to ke ¿one ]jy implication. Let it be recollected that before the act of 1827 executors could sell, give away, or otherwise dispose of the effects of their testator so as to give a complete title. Sneed and wife vs. Hooper and wife, Cook’s Reports. The implied repeal is by the act of 1813, ch. 119, sec. 3, Ca-ruthers and Nicholson, 79. This act merely provides that executors of every description before they administer shall give bond and security in the same way as administrators unless the will otherwise provides. In the case now before the court the first executor had given bond and security, had obtained letters testamentary, and no new letters testamentary were necessary. The executor of the executor then, even if he were required to give bond and security again, should be cited to do so and refuse before the court of probate had any jurisdiction to grant letters of administration. The first executor lived more than five years after his 'qualification. No creditor complains, and the trusts which devolved upon him for the legatees after the expiration of two years were such as a court of chancery could completely enforce without the intervention of the court of probate. Some of the legatees had received their legacies, and no duties of an executor or administrator as such were to be performed-The consequence of sustaining this administration of defendants in error would be, that although there was much more estate undisposed of than this plaintiff, who is a legatee, is entitled to, they can go on and bring suits against the purchaser of every negro that has been sold by the other legatees, collect them together, and then be compelled to distribute them again to the same legatees who have once sold them for a valuable consideration. When the first executor died, a court of equity could, on the application of either of the legatees, have appointed a trustee to preserve the prop.-erty according to the directions of the will, and an administrator de bonis non cum. test. an. has no authority to execute such trusts. 1 Dev. and Bat.: 2 Dev. and Bat.
    What gives authority to grant administration? The. statute of 21 Henry VIII, ch. 5, sec. 3, provides, “that in case any person die intestate, or that the executors named in testament refuse to prove it^he ordinary shall grant administration,” &c. See I Williams, 290.-
    John Shelby, the first executor, assented to the legacies by leaving the negroes upon the plantation after'the expiration of two years from his qualification, and delivering over to one legatee a portion of the estate: after that time he held them as guardian. Roper on Legacies, 569: Carroll vs. Bosley, 6 Yerger, 220: 3 Dev. Rep. 417: 2 Hawks, 497: 2 Plowden, 545: 2 Williams on Executors, 853,848.
   Reese, J.

delivered’the opinion of the court.

In 1813 Isaac Shelby departed this life, having duly made and published his last will and testament, and therein appointed John Shelby executor and testamentary guardian of his children, who made probate of his will and gave bond and was qualified; he paid all the debts of the testator in due time, as it is to be presumed, nothing to the contrary having been shown in the record of this case; placed the negroes and other property of the testator upon the plantation and in the possession of the wife and children of the testator, his devisees and legatees, pursuant to the directions of the will, and superintended them there; and had the farm carried oh during his life for five years, till 1818, when he died; and previously to his death made and duly published his last will and testament, and therein appointed Alfred M. Shelby executor, who gave bond and was duly qualified as such, but did not give bond or qualify as executor of the first estate, eo nomine. In 1836 the plaintiffs, of whom the latter was one of the legatees and devisees of Isaac Shelby, deceased, procured themselves to be appointed administrator and adminis-tratrix, cum testamento annexo, and brought this suit to recover a negro slave that had been placed upon the farm by the executor and testamentary guardian, and had remained there till 1820, when he was sold by two of the legatees to him from whom the defendant claims title. As the supposed legal right of the plaintiffs to maintain this action is founded, if at all, not upon the fact that one of them is the legatee of Isaac Shelby, but merely upon the administration -upon the estate of the said Shelby de bonis non et cum testamento annexo, that right has been questioned in argument before us upon two grounds: First. It is contended that the administration was not rightfully granted Jo the plaintiffs, and that the court of probate could not legally constitute them personal representatives of Isaac Shelby, deceased, because John Shelby made a will and appointed an executor who took upon himself the office, and that thereby the law devolved upon him the execution of the will of the first testator. Unquestionably this would be so at common law; but the 3d section of the act of 1813, ch. 119, provides that all executors of every description shall, before they presume to enter upon the administration of any estate whatsoever, enter into bond and security,” &c. Unless, therefore, bond be given by the said executor for the administration of the first estate, he cannot presume to enter upon the duties of executor of that estate; and although since the act the devolution of the first office upon the second executorship exists in point of right if he shall comply with the requisitions of the act, yet his omission to do so must be regarded as a refusal and renunciation. Tf this be so, still it is insisted, secondly, that although the plaintiffs, as the personal representatives of Isaac Shelby, might collect debts due to the estate, if any there are, or pay the debts due by the testator, if any could have legal existence, or do any other act pointed out in the will pertaining to the office and duty of an executor merely, and not as a trustee, yet that they cannot maintain the present suit, because the negro in question, the debts of Isaac {Shelby having been paid, as is presumed in the absence of evidence to the contrary, was placed upon the farm with others by John Shelby, in pursuance of a personal trust and confidence by the testator reposed in him; that such act was an assent by him as to the entire bequests of the will as to the whole body of legatees, in the same manner as the placing a specific negro into the possession of an individual legatee would be an assent to such a specific legacy; and that the property continued thenceforth in the hands of John Shelby, not as executor merely, but as testamentary guardian and trustee. And of this opinion are the court. The following is a copy of the will: “It is my will that my executor keep all my property of every description together on my plantation for the support of my wife and children, except such as he may deem sufficient to pay my just debts and fu* nerah expenses. And it is my will that my executor divide my property as near equal between my wife and ten children, namely, [here he enumerates them by name,] at the time that my youngest child comes of age. Also I wish him to divide to my respective children, as they may marry or come of full age at his discretion, reserving a sufficiency for the support and-education of my youngest one and wife, as he shall think most advisable, from time to time as such events of that kind may happen. It is further my will, that at the time my youngest child comes of age he shall divide my lands or sell them so that they can be equally divided amongst them. It is my will that my brother John Shelby be guardian of all my children till they come of full age, and he is hereby appointed sole executor of this my last will,” &c. It needs but to look at this will to be satisfied that, except as to the sale of so much of the property as would pay debts and funeral expenses, the powers and duties of John Shelby were as guardian and trustee. He took upon himself the execution of the guardianship and trust; he superintended and conducted the farm; he selected two of the negroes and gave them to one of the sons on his marriage. An administrator with the will annexed oould not meddle with the trust property; he could not take it from the farm; he could not superintend and conduct the farm; he could not educate the children; he could not advance them on their arrival at full age or marriage; he could not sell the lands and make an equal distribution of real and personal property. These are all matters connected with the guardianship and with the special and personal trusts and confidence, and these are the whole will.

The difficulty of obtaining clear views in the present case has probably arisen from confounding the ordinary duties of executor, which are properly dischargeable by an administrator de bonis non cum testamento a-nnexo, with those conferred on him by the same name but which belong to him as , , , „ , ° , guardian and trustee. Much of that difficulty would be obviated by considering these duties as conferred on ¿jfferen^ persons. Suppose in this case that John Shelby had been appointed executor and had been directed by the will to collect debts and to sell so much of the effects as would be sufficient to pay debts and funeral expenses, and then that he should place all the property upon the plantation; and after that, that A B, appointed testamentary guardian and trustee eo nomine,, had been directed to perform all the matters and things directed in the will. If, after the property had come into the hands of A B, the executor had died, and the plaintiffs had entered upon their present office, A B living, could the plaintiffs have meddled with him or the property? If then A B had died, would the circumstance have enlarged the powers of the plaintiffs? Certainly not: and yet in legal effect that is the case before the court. In the case supposed, after the death of A B a court of chancery and not a court of probate should have appointed a proper person to carry into effect the trusts of the will; and such should have been the course in the "present case. See Roper on Legacies, 559: 5 Yerger’s Rep. 220: 3 Devereax Rep. 417: 2 Plowden, 545: 2 Williams on Executors, 853, 848: 6 M. Ch. R. 151. The point in the statute limiting the grant of administration we" think was properly decided in favor of the plaintiffs. But upon the grounds above stated we feel it to be our duty to set aside the verdict and to reverse the judgment rendered thereon; and we remand the cause to the eir-puit court for further proceedings.  