
    M. M. Gatewood vs. E. R. Toomer and others.
    
      Practice — Partition—Marshalling assets.
    
    Where real estate of a decedent is sought to be partitioned, under a bill for partition only, the Court may, upon statements, made by petition in the cause, or in the answer of a defendant, that there are unsatisfied claims of creditors of the decedent, or others, to which the estate should be subjected, make all necessary orders, as under a creditor’s bill, for the protection of such claims.
    BEFORE CARROLL, OH., AT CHARLESTON, MARCH, 1868.
    Tbe following statement of the case is taken from the appellant’s brief.
    The bill is for a partition of certain lands devised by Henry Laurens, the elder, to his grand-daughter, Frances Eleanor, for life, remainder to Henry Laurens, tbe younger; and by him devised one-third part to his widow, Eliza' Laurens, the other two-third parts to his children. Eliza Laurens devised her one-third part to- her daughter, Mrs. -Ingraham, and her son, Edward E. Laurens. Edward E. Laurens being a defaulter in his office as Master in equity, duly assigned his share to William 0. Gatewood, to protect him from a heavy loss, suffered by reason of his being one of his sureties on his official bond. All the parties having title are before the Court., Their respective titles are not denied or disputed. ■ But the late John Laurens, one of the original defendants, who had intermarried with a daughter of Edward E. Laurens, by his answer, sets up against Mrs. Ingraham and Gatewood, in behalf of his wife, and the other distributees of her mother, Margaret Horry Laurens, who was also a devisee of Eliza Laurens, and in behalf of other devisees and legatees of Eliza Laurens, to wit: That the devises and legacies by Eliza Laurens to Margaret Horry Laurens, and others, having been exhausted in the payment of the debts of Eliza Laurens, the devise to Mrs. Ingraham and Edward B. Laurens, (now Gatewood’s,) must be in the first instance marshalled so as to make good said devises and legacies, of which the devisees and legatees had been deprived. The daughter of Edward B. Laurens, widow of John Laurens, is Eliza B. Laurens, administratrix of his intestate estate, and as such, and as his widow, has been made a party defendant. She is not otherwise a party. His daughter, an only child, and her husband, have also been made parties, and his share is thus fully represented.
    Being in this way before the Court, Mrs. Eliza B. Laurens insisted upon setting up and having adjudicated her equity as one of the distributees of Margaret Horry Laurens. To this the complainant, Gatewood, and the defendants, Ingraham and wife, object, and insist thac she has full and easy remedy to establish her equities without interfering with the partition, namely, by an original proceeding against them, and the share of Eliza Laurens after it should be assigned to them. Their statement of objection before the Chancellor appears below.
    His Honor, the Chancellor, made the following order:
    Carroll, Ch. The pleadings, evidence and argument of counsel having been heard, it is ordered and decreed, that all and singular the real estate described in the original bill exhibited in this cause, consisting of six thousand acres of land, more or less, in the district of Abbeville, and of certain marsh lands opposite, or adjacent to Hamstead, Charleston, be parted and divided among the parties, according to their respective rights and interests in the same, as set forth in the report of Master Graly in this cause, filed 12th day of March, 1866, except so much thereof as represents the portion to which Mrs. Eliza Laurens, if living, would be entitled, which said portion is to be designated and set out, but is to remain, subject to the further order and decree of the Court.
    It is further ordered, that the creditors of the said Mrs. Eliza Laurens be required to come in and prove their respective demands before one of the Masters, by a peremptory day, to be fixed by him, of which, and of this order, he is to cause public notice to be given, by an advertisement to be published in one of the daily papers of the city of Charleston, for forty days prior to such day; and such of the said creditors as shall fail to come in, and prove their respective demands as herein above required, are to be excluded from all benefit of any decree to be pronounced in this cause.
    And it is further ordered, that it be referred to one of the Masters to inquire and report as to what provisional orders should be made in respect to the portion of the aforesaid lands, which would belong to the said Mrs. Eliza Laurens, if in life, while the same is retained, subject to the further order of the Court. And it is also referred to one of the Masters to inquire and report as to the form of the writs of partition to be issued conformable to this order.
    The complainant, and the defendants, D. N. Ingraham, and Harriet, his wife, appealed from so much of this order as calls in the creditors of Eliza Laurens, and excepts her share of the land from partition, and for grounds of appeal renewed their objections submitted before the Chancellor, as follows:
    1. That the creditors of Mrs. Eliza Laurens need not be again called, because they were once called in by the executor, and afterwards again by special order of this Court, and duly reported on under proper proceedings, all now of record before the Court.
    2. That the partition ought not to be delayed or obstructed, every party having, or claiming to have, title in the premises, being before the Court; and if there are, as suggested, outstanding equities against any of the parts of the land, or against the parties having the title thereof, such equities may be prosecuted, notwithstanding the partition, without prejudice to any one.
    3. That the distributees of Margaret Horry Laurens, who was a devisee of Eliza Laurens, are not, and need not be, parties in this cause, because they have not any title in the premises.
    Having full notice of these proceedings, they may take such further proceedings as they may be advised, to protect the equity suggested in their behalf against some of the parties. They cannot be in anywise prejudiced by a partition which the parties before the Court are well entitled to have without further delay.
    And they humbly pray that such may be the order and judgment of the Court.
    
      Campbell, Buist, for appellants.
    
      Wilhins, Miles, Lord, contra.
   The opinion of the Court was delivered by

Dunktn, 0. J.

The late Mrs. Eliza Laurens was entitled to one;third part of the lands of which partition is sought by these proceedings. By the decree of the Chancellor, partition is directed; but the share of Mrs. Eliza Laurens is directed to be retained subject to the further order of the Court, and, in the meantime, the Master is instructed to inquire and report what provisional orders should be made in relation to the portion so retained.

By the will of Mrs. Laurens, her interest in these lands was devised to her daughter, Mrs. Ingraham, and her son, Edward R. Laurens, whose interests are represented by the plaintiff. It appears from the exhibits filed with the pleadings, that Mrs. Laurens also devised and bequeathed certain other real and personal estate in trust for Margaret Horry Laurens, the wife of her son Edward R. Laurens, with the right to dispose of the same by will, but, in the event of her dying intestate, to be distributed among her heirs at law. John Laurens, who was one of the original defendants in the cause, filed his answer, in which, among other things, it is stated that Margaret Horry Laurens survived the testatrix and afterwards died intestate, "leaving three children, to wit, Eliza R., who was the wife of defendant, (John Laurens,) and two sons, Henry Laurens and John R. Laurens, and that the said three children succeeded to the property so devised and bequeathed to their mother.” The answer furthermore states that the property devised and bequeathed to Margaret Horry Laurens, “had been taken and applied to the payment of the debts of the testatrix, Mrs. Eliza Laurens, the property by her specifically charged with the payment of the same having proved insufficient for that purpose.” It is then submitted by the answer that the interest of Mrs. Eliza Laurens in the premises sought to be partitioned, is liable to be so marshalled as to make good the said devises and legacies, of which the devisees and legatees have been thus deprived.

John Laurens subsequently died intestate. His widow, Eliza R. Laurens, having administered on his estate, an order was passed by the Master in February, 1866, that the said Eliza E. Laurens, administratrix of John Laurens, deceased, be made a party in the cause; and her answer was filed in which, among other things, she “refers to and sets up the answer of her said intestate already mentioned.”

Under these circumstances the order was made by the presiding Chancellor, which is the subject of this appeal.

In proceedings for the partition of the real estate of a deceased person among his heirs or devisees, it is the practice of the Court, upon the suggestion of the personal representative, or of other persons interested as creditors, to take care that their rights are protected and an order made for calling in creditors. And so, if a claim exists to the distributive portion of one of the heirs or devisees, it is not infrequent to entertain a petition, in behalf of such claimant, entitled in the cause, and a copy of such petition is required to be served upon the adverse party. That petitions of this character are sanctioned, see 3 Danl. Ch. Pr. 1709.

Probably, acting on this familiar practice, the Chancellor made the order for calling in the creditors of Mrs. Eliza Laurens, deceased. The report of Master Tupper, entitled in another cause, shows that this notice had already been given and the amount of indebtedness ascertained. So much of the order as directs a notice to be published is, therefore, superseded.

The claim of the defendant, Eliza E. Laurens, to have the interest of the testatrix marshalled, and the grounds of that claim had been distinctly brought to the notice of the Court in the answer of her late husband, John Laurens, which was referred to and adopted in her answer subsequently filed. This was enough to justify the order, which would obviously include an inquiry by the Master as to the persons entitled, with the defendant, Eliza E. Laurens, under the devise to Margaret Horry Laurens, and what orders were proper to be made, whether they should be made parties defendant, or proceed by petition in the cause, &c.

- The equity, on which- these -parties insist, is the right of subrogation to the creditors whose claims they have satisfied. This Court intimates no 'opinion as to the alleged facts, or as to the conclusions. The order of the Chancellor is purely administrative. It settles no rights — adjudicates nothing. Nor is the execution of 'the order attended with any considerable delay. In general, such orders are very much within the discretion of the presiding Chancellor, and, so far as this Court can perceive, it seems to have been properly exercised. So much of the appeal as assigns error in this respect'is dismissed.

Wardlaw, A. J., and Glover, J., concurred.

Order modified.  