
    *Frazier &c. v. Frazier’s Ex’ors &c.
    
    April, 1831.
    (Absent Coalter. J.)
    Decrees by Deiault — Reversal.—Decree in chancery, upon default of defendants, though, they are not in contempt upon any proper process, reversed for this irregularity.
    Administrators Official Bonds — Form— Failure to Conform to Statute-Effect. — Bond with surety taken from an administrator with will annexed, with condition, not in form prescribed by law for official bond of administrator with will annexed, but in form prescribed for an administrator, and not exactly conforming even to that: Heed, this is not a good statutory bond, and no suit, either at law or in eauity, can be maintained against the surety, for the benefit or at the relation of 3, legatee.
    Same —Same—Same—Same—Same—Qucere.—Whether such a bond, he good as a common law bond, for the indemnity of the justices to whom it was given ?
    Wills — Bequest to “Next of Kin” Subject to Appointment —Failure to Appoint — Effect.  — -Testator bequeaths his personal estate to his brother J. to be sold. and the proceeds to he distributed by the brother among testator’s next of tin, according to their deserts, as he should see at a future time what may turn up; the brother dies without mating any appointment: Held, the testator is to be regarded as intestate quoad this subject, and the same is distributable among his next of kin according to law.
    Lapsed Legacies Fall in Residuum — Rule Inapplicable to Residuary Legacies — Case at Bar. — Testator bequeaths residuum of his estate to the four children of a deceased brother; two of the legatees die before testator, whereby the intended legacy of the moiety of the residuum to those two, lapses: Held, this moiety does not go to the two residuary legatees that survived testator, but as to it he was intestate, and it is distributable among his next of kin according to law.
    Same — Same—The rule, that all legacies which fail by lapse or otherwise, fall into the residuum and go to the residuary legatees, applies to specific or pecuniary legacies, but not to the subject of the residuary legacy itself.
    Chancery Practice — Evidence—Record in Another Chancery Suit. — In a suit in chancery, the defendants are in default; yet the record, or proceedings in another suit inter alios, is not competent evidence against them.
    This was an appeal from a decree of the superiour court of chancery of Staunton.
    The proceeding's in the court of chancery were very irregular. The subpoena was in the names of Hugh Paul and James Coursey executors of John W. Frazier deceased, plaintiffs, against James Frazier executor of James Frazier deceased, William Hillis father and next friend of Eliza Hillis, and George Goiner, defendants. This subpoena was returned “executed on Frazier’s executor; Coiner, the other defendant, not an inhabitant of the state. ” *The bill was exhibited by Paul and Cour-sey executors of John W. Frazier, and Eliza Hillis, an infant, bjT W. Hillis, her father and next friend, plaintiffs, against James Frazier administrator with the will annexed of James Frazier and executor of John Frazier, and G. Coiner. The defendants, not appearing to answer the bill, there was a decree nisi entered, in the names of the plaintiffs in the bill, against James Frazier executor of James Frazier and G. Coiner (though Coiner had not been served with the subpoena). This decree nisi was served on both the defendants; and they still failing to appear and answer, there was a decree against them by default; and this decree was entered not as between the parties named in the decree nisi, but as between the parties named in the bill. Thus, the parties named in the bill, and between whom the final decree was made, were different from the parties named in the process, that is, the subpoena and the decree nisi; the parties named in the decree nisi were different from those named in the subpoena ; and the subpoena not having been served on the defendant Coiner, no such decree nisi could regularly have been entered against him.
    The bill set forth, that John Frazier died in 1809, leaving a will, whereby he bequeathed one moiety of the personal estate to his brother James, and the other to the children of his deceased brother Samuel, namely, James, Samuel, Bella and John W. Frazier, and appointed his brother James his executor, who proved the will and took upon himself the executorship, but never made any distribution of the estate among the legatees. That James Frazier, the executor of John, died in 1814, leaving a will mhde in 1810, wherebj’ he bequeathed the residuum of his estate to be sold, and the proceeds to be equally divided among the above named children of his deceased brother Samuel, viz. James, Samuel, Bella and John W. Frazier; and administration of this testator’s estate with his will annexed was granted to another James Frazier, a distant relative, who gave an administration bond, wherein George Coiner *was his surety. That the legatees Samuel and Bella Frazier named in the will of the testator James, died before that testator, so that the legacies bequeathed by his will to them, lapsed, and the legatees, James and John W. Frazier, became entitled to the whole residuum of that testator’s estate. That Bella Frazier died the wife of William Hillis, and leaving one child, the plaintiff Eliza Hillis, to whom her father had relinquished all claim he might have. That John W. Frazier was also dead, and the plaintiffs Paul and Coursey were his executors. That, in a suit, which had been brought by James Frazier, the son of Samuel the elder, against James Frazier the administrator with the will annexed of the testator James, it became necessary to ascertain the amount in his hands, as administrator of the testator James, and as executor of the first named testator John, in which character he had possessed himself of some of the assets of John’s estate that had not come to the hands of his testator James in his lifetime; and it was ascertained by an account taken in that cause, that James Frazier (the administrator &c.) had in his hands in August 1815, the sum of 963 dollars of his testator James’s estate, and in August 1816, the sum of 365 dollars of the first named testator John’s estate. That the plaintiffs, executors of John W. Frazier, were entitled to a moiety of the 963 dollars of the testator James’s estate; and that the 365 dollars of the testator John’s estate, belonged to the plaintiffs executors of John W. Frazier, to his brother the legatee James Frazier, and to the plaintiff Eliza Hillis, in equal shares. The bill made James Frazier the administrator of the testator James, and as executor of the testator John, and George Coiner, the surety in his administration bond, parties defendants; and prayed a decree for the money, with interest, claimed by the bill as due to the plaintiffs respectively, and general relief.
    There were exhibited with the bill, 1. the will of the first named testator; 2. the will of the testator, James Frazier; and 3. the account taken in the suit brought by James Frazier the younger, mentioned and referred to in the bill.
    *1. The will of John Frazier, after devising his real estate, contained the following bequest: “In respect to my personal estate, I leave it to the management of my brother James: which property consist of cows, horses and hogs, and perhaps some household furniture, together with notes and bonds; and that he shall see all the debts of my estate punctually paid; and that he make public sale of said estate, and at a future day make a distribution among the legatees of my personal estate, according to their merit or deserts, as he may see at a future day what time may turn up; and he may call in his nephew Samuel Frazier as his assistant in this business.” The phrase “among the legatees of my personal estate,” referred to the testator’s next of kin ; for the will named no such legatees. James Frazier the brother, never executed the power of ap-, pointment.
    2. In the will of the testator James Frazier, there was the following residuary clause: “all the residue of my estate, be it of what kind soever, I desire may be sold, by my executor (after my wife’s death) and the proceeds of such sale, after paying my just debts, legacies, and funeral charges &c. to be equal divided among all my brother Samuel Frazier’s children, to wit, John W., James, Samuel, and Bella Frazier, which I give to them and their heirs forever. ’ ’
    3. The account taken in James Frazier’s suit, shewed a balance in the hands of the defendant James Frazier, of his testator James’s estate, of 963 dollars, bearing interest from August 1815, and a balance in the same defendant’s hands, belonging to the first named testator John’s estate, of 365 dollars, bearing interest from August 1816. But the defendant James Frazier was not executor of the testator John.
    The bond given by the defendant Frazier, with Coiner as his surety, for the due administration of the estate of the testator James Frazier with his will annexed, was exhibited. It was dated the 27th June 1814. And the condition of it was, “That if the above bound James Frazier administrator with the will annexed of all the goods, chattels *and credits of James Frazier deceased, do make or cause to be made a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come to the hands, possession or knowledge of him the said James Frazier, or to the hands or possession of any other person or persons for him; and the same so made do exhibit, or cause to be exhibited, to the county court of Augusta, at such time as he shall be thereunto required by the said court; and the same goods, chattels and credits, and all other the goods, chattels and credits of the said deceased, at the time of his death, which at any time after shall come to the hands or possession of the said James Frazier, or into the hands or possession of any other person or persons for him, do well and truly administer according to law; and further, do make a just and true account of all his actings and doings therein, when thereto required by the said court; and all the rest and residue of the said goods, chattels and credits, which shall be found remaining upon the said administration account, the same being first examined and allowed by the justices of the court for the time being, shall deliver or pay unto such person or persons, respectively [as the said justices by their order or judgment shall direct, pursuant to the laws in that case made and provided] ; and if it shall hereafter appear, that any last will and testament was made by the said deceased, and the executor or executors therein named do exhibit the same into the said court, making request to have it allowed and approved accordingly, if the same James Frazier, being thereunto required, do render and deliver up his letters of administration, approbation of such testament being had and made in the said court; then this obligation to be void and of no effect, or else to remain in full force and virtue.”
    
    *The chancellor’s decree (taking the bill pro confesso on the default of the defendants) was, that the defendants Frazier and Coiner should pay to the plaintiffs executors of John W. Frazier, one half of the 963 dollars of the testator James’s state, and one third of the 36S dollars of the first named testator John’s estate, .and to the plaintiff Eliza Hillis, one third of the same 36S dollars, with interest &c.
    The defendants applied to this court, by petition, for an appeal from the.decree, which was allowed them.
    Johnson for the appellants: Stanard for the appellees.
    
      
      Decree by Default. — See generally, monographic note on “Decrees’' appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
      Admiasistrators — Official Bond — Failure to Conform to Statue — Effect.—In Roberts v. Colvin, 3 Gratt. 359, 363, it was held, on the authority of the principal case, that where an administration bond does not conform to the reanisitions of the statute, and contains no provision for the benefit of creditors, no decree can be rendered in their favgr against the sureties therein.
      In Monteith v. Com., 15 Gratt. 187, it is said: “The cases of Frazier v. Frazier's Ex’ors. 2 Leigh 642. and Roberts v. Colvin, 3 Gratt. 358, merely decide that the parties could not be charged beyond the stipulations of their contract. The bonds did not conform to law, and did not extend to the liability asserted ”
      And in Gibson v. Beckham, 16 Gratt. 330, 331, 332, 333, it is said that the principal case did not decide that the bond under consideration was void and invalid for any purpose provided for in the condition; but that the decision and opinion of Junáis Gkkbn was carefully restricted to the case of the legatee suing, and for whom no provision had been made.
      In this case (Gibson v. Beckham), it was held that where a court or officer has authority or capacity to take a bond and makes a mistake by omitting some condition prescribed, or inserting a condition not authorized or illegal, unless the statute by express words, or necessary implication, makes it wholly void, a bond is not void; and it may be sued on, as far as the conditions are good, as a statutory bond.
      The review and explanation of the principal case and Roberts v. Colvin, 3 Gratt. 358, made by Junuis Allen, in Gibson v. Beckham, 16 Gratt. 321, is approved in Reed v. Hedges, 16 W. Va. 206.
      In Morrow v. Peyton, 8 Leigh 54, after the death of an executor who had qualified as such, administration was committed to an administrator d. b. n. c. t. a. but the bond was in the form prescribed for administration d. b. n. instead of administration d. b. n. c. t. a. The form of the bond adopted contained a condition for the benefit of creditors and creditors were suing; but the court held, on the authority of the principa] case (pp. 75, 79), that the bond was void and the sureties were not bound by it.
      But see foot-note to Morrow v. Peyton, 8 Leigh 54, where it is shown that in Gibson v. Beckham. 16 Gratt. 331 et seq., the court disapproved the broad proposition laid down in Morrow v. Peyton, that a bond not conforming to the requisitions of the statute is void to all purposes, saying the decision was based on a hasty consideration and misconception of the decision of the principal case; and that if the court has not been misled by the mistake as to the efiect of the decision of the principal case, they would not have decided that such a bond was void entirely and the sureties not bound by it.
      See principal case also cited in State v. Purcell, 31 W. Va. 67, 5 S. E. Rep. foot-note to Morrow v. Peyton, 8 Gratt. 54, which quotes at length from Gibson v. Beckham. 16 Gratt. 321.
      See further, foot-note to Gibson v. Beckham, 16 Gratt. 321; monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107: monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Wills- Bequest to “Next oí Kin” Subject to Appointment' ^Failure to Appoint — Effect.—in Milhollen v. Rice, 13 W. Va. 563, it is said: “In the case of Frazier v. Frazier's Ex'r, 2 Leigh 642, the syllabus says: ‘the testator bequeathed his personal estate to his brother. J., tobe sold, and the proceeds to be distributed by the brother among testator's next of kin, according to their deserts, as he should see at a future time, what may turn up; the brother dies without making an appointment, field, that the testator is to be regarded as intestate quoad this subject; and the same is distributable among the next of kin according to law,’ The court however says nothing on the subject. The property was held to be distributable among the next of kin, I presume, not because the testator was to be regarded as dying intestate as to it, but because it was either a trust or a power in the nature of a trust, which being unexecuted, the property must go to the next of kin of the testator, as the legatees under the will.”
      In Fontaine v. Thompson, 80 Va. 229, 232, a testatrix devised her estate to a trustee to be distributed among her ‘‘next of kin who may be needy,” in such proportions and at such times as in the opinion of the trustee (who was also made executor) might be best. The trustee did not qualify and died; and the administrator d. b. n. c. t. a. brought suit to construe the will. In delivering the opinion of the court, Lacy, J., said: “There is certainly no reason why the devise should be held to be void on the ground of the uncertainty of the class which is to take. The distribution is to be among her next of kin; that much is distinct and clear enough; the persons to be benefited are the most needy in that class (designated as her next of kin), according to the opinion of the trustee. If the persons to be selected out of this class cannot be determined for any cause, then the selected persons will not take, because they are unknown; but the class being clearly. and distinctly designated, out of which the selection was to be made, there is no reason why the devise should be declared .void as to the class, although it might be void as to the person to be selected out of the class, because of uncertainty. The courts have passed upon these words,‘the most needy,’or their equivalent, in cases which we have examined, and they do not seem to have taken the same view of the question in every case. In Frazier v. Frazier, 2 Leigh 642, this court held the words ‘to be distributed by the brother among the next of kin, according to their deserts, as he should see at a future time what may turn up,’ to pass no estate, and the testator to be regarded intestate as to this subject. This case was decided in 1831. In 1830, the supreme court of errors of Connecticut, in the case of Bull v. Bull, 8 Conn. 47, took what seems to be an opposite view, holding that ‘it can be ascertained who are the most needy of the brothers and sisters and their children, ’ so stating a similar devise in that case as in this.” Continuing, Judge Lacy shows that the case of Hill v. Bowman, 7 Leigh 650, does not overrule the principal case, as contended by counsel, and says that, in the principal case, while the devise was for the benefit of the testator’s next of kin, to be selected by a rule held to be too uncertain and void, the devise was in effect sustained as to the class ascertained and certain, to wit, the next of kin.
      In discussing the effect of a power of appointment remaining unexecuted, Thrasher v. Ballard, 35 W. Va. 530, 14 S. E. Rep. 234, cites the principal case.
      Trustees — How Discretionary Power Conferred on.— See, citing the principal case, Whelan v. Reilly, 3 W. Va. 611; foot-note to Shearman v. Hicks, 14 Gratt. 96 (containing extracts from Whelan v. Reilly, 3 W. Va. 611).
    
    
      
       Will — Devise to Several Devisees — Death of One Devisee before Testator — Effect.—In Hoke v. Hoke, 12 W. Va. 467, it is said: “As we have seen where the devise of real estate is to a plurality of devisees or legatees j ointly, and one of them dies before the testator, his share will not lapse, but ordinarily, the devise shall enure to the surviving devisees, except where the will otherwise directs, and except as hereinafter qualified. 2d Ed. of Minor’s Institutes, vol. 2, p. 947. William Green’s Exposition, Wythe’s R. p. 361, etc., and authorities cited in notes. 3d vol. of Lomax Digest, 2d Ed. page 186. note 2; 2d vol. Lomax on Executors, 2d Ed. page 106, note 2. In the case of Frazier, etc. v. Frazier's Ex'or, etc. 2 Leigh 648. it might be understood from the syllabus and statement of the case by the reporter, that the devise of James Frazier by his will to four of the children of his brother Samuel, who was dead, was a devise to them in joint-tenancy, but it will be seen by reference to the opinion of the court delivered by Judge Green that the devise to said four children was a devise to them as tenants in common. It would 'seem that the manner this case is reported may have misled Judge Tucker into the views expressed by him on the subject in the 1st vol. 2d book of his Commentaries, published in 1836, page 298, as he cites that case as supporting his views.”
      The general doctrine at common law is, that a devise lapses in all cases where the devisee dies before the testator, and if the devise be to several, as tenants in common, and one of them dies in the testator’s lifetime, his share lapses. Furbee v. Furbee, 49 W. Va. 191, 38 S. E. Rep. 515, citing principal case.
    
    
      
       Lapsed Legacies Fall in Residuum — Rule Inapplicable to Residuary Legacies. — See principal case cited on this point in Tebbs v. Duval, 17 Gratt. 359.
      For full discussion of the subj ect, see monographic note on “Legacies and Devises” appended to Early v. Early, Gilm. 124.
      Legatees — Suit to Settle Decedent’s Estate — Parties.—■ Legatees or distributees may maintain a suit in equity to settle the decpdent’s estate, but they cannot have a decree for distribution among them without making the personal representative of the decedent a party. To this effect, the principal case is cited in Hansford v. Elliott, 9 Leigh 80, 95. and foot-note, Robertson v. Gillenwaters, 85 Va. 118, 7 S. E. Rep. 371, s,n&foot-note to Moring v. Lucas, 4 Call 577.
    
    
      
      TMs condition follows the form of the condition of an administrator’s bond, which was prescribed by the act of 1711, ch. 2, § 12, 4 Hen. stat. at large, p. 19. but being applied, in this case, to the obligation of an administrator with the will annexed, for which the form was not intended, it is, of course, variant from the form given in that statute.
      .The form of the condition of the bond of an executor, and of an administrator with the will annexed, was also prescribed by the same statute; Id. ibid.
      The form for the condition of an administrator’s bond, was altered by the statute of 1785, ch. 61, § 29, which instead of the words in the form of the statute of 1711, requiring the administrator to deliver and pay the estate of the deceased, to such person or persons, respectively, “as the justices by their order shall direct, pursuant to the laws in that case made and provided,” requires him to deliver and pay the same to such person or persons, respectively “as are entitled to the same bylaw.” See 1 Rev. Code, ch. 104, § 85, p. 383. — Note in Original Edition.
    
   GREEN, J.,

delivered the opinion of the court. The decree is liable to many well founded objections. It is a decree by default against parties who were not in contempt by any proper process. Neither the subpoena nor the decree nisi required the defendants to answer any such bill as was in fact exhibited ; and the parties named in the decree nisi are different from those between whom the decree was made. There are variances at every step of the proceedings. No such decree nisi could regularly be entered against Coiner; though, upon the return that he was not an inhabitant of the state, a decree nisi with an order of publication, might have been entered, if the proceedings had been in other respects regular. If there were no other objections to the decree, the irregularities in the process woulfi be sufficient to reverse it.

*The next objection is, that the bond, upon which the decree is founded against Coiner, as the surety of the other defendant, does not conform, in substance, to that prescribed by the statute, for the official bond of an administrator with the will annexed. It was intended to be in the form of that prescribed for an administrator, but it does not even conform to that. The form of the condition of the bond, is that given by the act of 1711, which was altered by the act of 1785, and retained as altered, in all the subsequent revisáis. The stipulation to administer the goods &c. according to law, found in this bond, and which is found also in the forms prescribed by law, for the bonds of both executors and administrators with the will annexed, and other administrators, does not embrace the surplus assets iiayable to legatees or distributees, but only extends to receipts and disbursements made in the expenses of the administration and the payment of debts. If it went further, and embraced that surplus, there would have been no necessity or propriety in making any difference in the form of the stipulations of the bonds in respect to its disposition, and to provide (as the statute does, in the bond of an executor or administrator with the will annexed) that the balance upon the account of the administration, remaining unadministered, shall be paid and delivered in satisfaction of legacies given by the will, as far as the goods, chattels and credits will extend according to the value thereof, and as the law shall charge; and, in the case of an administration, “to such person or persons respectively as are entitled to the same by law.” The bond in this case, though it may be good as a common law bond, for the indemnity of the justices to whom it was given, (as to which I give no opinion,) is not a statutory bond, upon which any suit at law or in equity can be maintained for the benefit, and at the relation, of a legatee. And, therefore, the bill ought to be dismissed as to the appellant Coiner.

The appellant Frazier is, however, responsible to the legatees for the surplus assets of James Frazier his testator *in his hands, independently of the bond. But he was not responsible to the legatees of John Frazier, for the assets of his estate which came to his hands. As to them he was executor de son tort, and as such liable to John Frazier’s creditors at law, .but not to legatees in equity, without setting up an administrator de bonis non, and making him a party; for, otherwise, a recovery by them would not protect him from the demand of any subsequent administrator de bonis non, as he would be protected by the recovery of a creditor. Edlows v. Deane, Bunb. 36, cited in Wernick v. M’Murdo, 5 Rand. 75.

But even if he was responsible in respect to the assets in his hands of John Frazier, in this suit, the principle upon which that fund was distributed by the decree is erroneous. John Frazier died intestate in respect to that fund; and his surviving brother was entitled to a moiety of it, as a part of his general assets, and the four children of his deceased brother Samuel, to the other moiety; two of whom having since died, one of them intestate and unmarried, that moiety was equally distributable between his surviving brother, and the representatives of his deceased brother and sister, respectively.

The residuary assets of James Frazier (in which is included a moiet3T of the residue óf John Frazier’s assets) was also distributed by the decree, upon mistaken principles, which excluded the infant party from any participation in it. James Frazier bequeathed the residue of his estate to the four children of his brother Samuel (who was dead) as tenants in common. Two of them died in the lifetime of this testator; one of them leaving issue. The consequence was, that as to a moiety of that residue, the residuary legacy lapsed; as to it the testator was intestate; and it •was distributable among his next of kin, his two surviving1 nephews, and the proper representative o± his deceased niece, who was entitled to one-third of that moiety so lapsed. But the whole has been equally divided between the two surviving nephews, upon the ground, I suppose, of the general rule, *that all legacies failing by lapse or otherwise, fall into the residuum, and pass to the residuary legatees ; which is true, in respect to all specific or pecuniary legacies, but not as to the subject of the residuary legacy itself; for, if any part of that fails to take effect, by lapse or otherwise, it becomes so far an intestacy, and goes to the next of kin as undisposed of.

There is yet another error in these proceedings : the admitting in evidence against the appellants, and taking as the foundation of the decree, the record of another cause, to which the plaintiffs in this suit were neither parties nor privies.

The decree must be reversed; the bill dismissed with costs as to Coiner, and the cause remanded with directions to send it to the rules, with leave to the plaintiffs to amend their bill, if they shall be advised to do so; and to be further proceeded in there.  