#### MILTON HOBBS & WIFE & al. vs. R. N. & B. CRAIGE & al.

An executor or administrator may be called to account by petition or bill in Equity by tbe legatees or next of lrin, before the expiration of two years from the time of probate or of administration granted; The act of Assembly compels them to settle within that time, but does not authorise them to defer the settlement without necessity. ' The court, to whom the hill or petition is presented, can prevent any premature decision, which may do injustice to the executor or administrator.

On an account upon a petition or bill against the administrator or executor, he should not be charged with monies which he had not collected or which he had not by reasonable diligence been able to collect.

As to matters, where it was doubtful whether he could collect or not, these should be left to a future account, the plaintiffs, in the mean time, taking a decree inpart for what was certainly due.

Where the answer of executors or administrators to a petition or bill to account, sets forth a joint receipt and joint administration of the assets, the commissioner is npt required to report what each received respectively.

It is not a good exception to a commissioner’s report that th,e proper parties have not been made to a petition or bilk that is an objectiojiagainst the petition or bill itself.

Where the surplus of an estate is left by will tobe equally divided “between tbe heirs of A. B. and the heirs of C. D.,” the children or heirs of A. B. and C. D. take per capita and not per stirpes.

Inhere one of several joint legatees is not a party complainant in a suit for the legacy, nor any process served on him, nor any good reason assigned for this omission, the other legatees cannot sustain their bill or petition.

But the Supreme Court,instead of dismissing the bill or petition, will remand it to the court below, and direct the plaintiffs to pay the costs in the Supreme Court.

This was a petition filed in the Superior Court of Davie county, calling upon two of the defendants, executors of Anderson E. Foster, to account for his estate and pay the petitioners their sharp of the surplus as devised to them and othrers, and making others defendants, who were alleged to be also legatees of this surplus.

Thefacts and pleadings in the case are fully set forth in the o*333pinionof the court. Theexceptionsbythe defendants to there-port of the commissioner, made in the case upon the accounts of the executors and referred to in the opinion of the court, are these:

1st. That from the involved situation of the estate, the defendants had not time to settle the estate.

2d. That owing to the absence of one of the executors, fully acquainted with the estate, and who was expected back in time to attend to the taking of the accounts, great injustice may be done to the executors.

3d. That from the fact that the account was only filed on Thursday of this term, from the complicated nature of the account, not sufficient time was given to the defendants to give it a careful examination.

4th. That the report does not set forth how much of the assets came into each of the executor’s hands.

5th. That all the parties, concerned in the matter, are not • properly before the court, or the cause placed in such a situation as to them that it can be finally determined.

6th. That the defendants are improperly charged in the account with a claim against Elizabeth Nesbitt for the sura $1000 or $1200, for which a suit is now pending against Mrs. Nesbitt, in which she seeks to get rid of the claim or reduce it by sets off.

7th. That the commissioner has divided the balance equally between the children of David Craige and Samuel Fas, ter per capita, when, agreeable to a fair construction of A. E. Foster’s will, the balance should be divided per stirpes; in other words, that one half of the balance should be divide ed among the children of David Craige, four in number, and the other half among the children of Samuel Foster, five in number.

8th. That the commissioner has charged them with certain claims, one against Robert Huie, amounting to $400, and with a claim on John Jones for $650, against which the de-. fendants have sets off to discharge the claims or to reduce them; that, owing to the absence of Robert Huie in another State, who is likewise connected with Jones’ debt, at the tak* ing of the account by the commissioner, the defendants were *334unable to adjust the matter and obtain the proper vouchers.

9th. That the commissioner has charged them for a claim against Robert Foster, the proceeds of a sale of a tract of land, which amount depends on a suit instituted by Robert Foster against the defendants to rescind the contract, and recover back the purchase money.

10th. That the commissioner has not given them credit for bad or desperate debts or amount of counter claims against acccounts.

11th. That the defendants have not received credit for the sum of $15 paid Joseph Todd, cryer at the sale, and $5 paid Henry Giles for counsel concerning the estate, the vouchers having been mislaid.

12th. That the report does not shew the claim which the defendants have against the plaintiffs or one of them, having been a large purchaser at the sale.

13th. That by the will of A. E. Foster, the defendants are to do certain work about the family burying ground, and to pay the expense out of the estate, and which work they have not been able to accomplish.

14th. That by the said will Jane McCarter, a legatee in the will, is to receive a year’s provision as well as provision for four hands for a year. The executor Burton Craige, being her guardian, these provisions were furnished by him, and the defendants are entitled to credit therefor. Owing to the absence of Burton Craige, the other defendant was unable to lay the proper proof before the commissioner in order to obtain the proper credit.

15th. That the commissions allowed by the commissioner are not adequate to the services rendered.

16th. That proper allowance has not been made for costs in defending suits.

The cause coming on to be heard before his honor Judge Settle, at the Spring Term, 1840, of Davie Superior Court of Law upon the petition, answers, report of the commissioner and exceptions thereto, it was ordered that the exceptions be over-ruled and the report confirmed, and a decree was thereupon made, for the amount found by the report, in fa*335vor of the plaintiffs. From this decree the- defendants pealed to the Supreme Court. ap-

Wm. H. Haywood for plaintiff.

Alexander for defendant.

Gaston, Judge.

This case comes before us by an appeal from adecreee of the Superior Court of Davie', rendered in a proceeding by petition. Oil an inspection of the record, it appears that at the'Spring'Term, 1838, of that court, the petition was filed by Milton Hobbs and Irene his wife and Sarah Foster, against Robert N. Craige, Burton Craige, Samuel Craige, John Craige, Giles- Foster; Ellis Foster, Berry Foster and his wife Mary, but that subsequently, by permission of the court, Giles Foster and? Berry Foster and wife were stricken out of the' bill, as parties defendants, and, instead thereof, made parties plaintiffs. In the petition it was charged; that Anderson E. Foster had died in the month of May, 1836, having previously duly executed his last will and testament, whereol he appointed the defendants Robert and Burton, executors, and'which, after his death, the said Robert and Burton caused' tb be duly proved; that by the said will, after some special devises and legacies, he disposed of all the residue of his estate real and personal in the following terms, viz: “ The balance of my property to be applied to the-payment of my debts; should there be a surplus, it is my will that it be equally divided among the heirs of my deceased brother, Samuel1 Foster, and the heirs of David Craige.” And the petitioners1 alleged, that the petitioners, Irene, Sarah, Giles and Mary, together with the defendant, Ellis Foster, were the persons intended and designated in the said will by the description, “ the heirs of my deceased brother, Samuel Foster,” and1 the defendants, Robert, Burton, Samuel, and John Craige, were the persons thereby designated as the heirs of David Craige; they charged that of the residuum aforesaid so devised and bequeathed, a large sum, after satisfying all the just debts of the testator, remained in the hands of his executors; and they prayed that they might be compelled to account for their administration of their trust as executors, and be compelled to pay over to the petitioners, respectively, what might be found *336due upon taking such account. The defendants, Samuel Uraige, filed their answers, and thereby insisted that according to the proper construction of the will, “the fieirs of Samuel Foster” were to take one moiety, and “ the heirs of David Craige” were entitled to the other moiety) the equality of division there directed being between the roots or per stirpes, and not per capita or among the individuals, embraced within those classes. The defendants, Robert and Burton, also put in an answer, in which the same question was raised, and in which they also contended that the petition had been filed prematurely, before the petitioners were entitled to demand an account or payment of what might be due them thereupon. The defendant, Ellis Foster, does not appear to have been served with any process, or to have entered his appearance to the suit, nor have any proceedings been had against him. At the Spring Term, 1839, an order was made that the cause should be referred to John Clement to take an account, and at the Fall Term, 1839, the commissioner returned his account, to which the defendants filed exceptions. All of these exceptions were upon argument at the same term overruled and the report confirmed, and thereupon it was decreed that the petitioners, Hobbs and wife, should recover of the defendants, Robert N. Craige and Burton Craige, the sum of $1,050 40§ cts., the petitioners, Berry Foster and wife, should recover the like sum, and the petitioner, Sarah Foster, the like sum; and that the petitioners should respectively before suing out execution, execute bonds payable to the Chairman of the County Court of Davie, in the penal sum of $2,110 81 cts., with security, to be approved by John Clement, Esq., conditioned to indemnify and save harmless the said Robert N. Craige and Burton Craige, and to refund to them their proportionable parts of all’ such sums of money as- might be thereafter recovered of them as the executors of Anderson E. Foster, deceased, by means of any suit or suits that might be thereafter commenced against them,- or any sets-off which might be allowed in any suit then pending; that the costs of taking the account should be paid out of the estate of Anderson E. Foster, and the residue of the costs be paid by the said *337Robert and Burton. From this decree the defendants apPealed-

t There is no error in the interlocutory order directing the accounts to be taken. The act of Assembly, making it obligatory on executors to settle the estate at the end of two years after their administration shall have begun, does not authorise them to defer the settlement until that time without necessity. And it is competent to those interested to ñle their bill or present their petition for such a settlement, as soon as they think proper, the proceedings upon such bill or petition being under the control of the court, who can prevent a pre. mature decision thereon, and have the question of costs at their disposition.

We have examined the exceptions taken to the report of the commissioner, and think there .was error in overruling the 6th of these exceptions. It is thus expressed: “ for that the defendants are improperly charged in the account with a claim against Elizabeth Nesbett, for which a suit is now pending against her, in which she seeks to get rid of the claim or to reduce it by sets-off.” The facts in relation to this charge, so far as we can gather them from the report, are, that the executors were charged in the account with the amount of articles sold to Elizabeth Nesbett, amounting to about $1200, not yet collected, but for which a suit has been, brought, which at the time of the report was still pending; and the commissioner reports also, that should Elizabeth Nesbett succeed in reducing the amount claimed, then the executors should be allowed a credit to the extent of that reduction. Now, upon this view of the facts, it would seem that the executors had not yet collected the money, wherewith they were charged in this item; that nothing was shewn from which it could be seen that they oiight to have collected it; and until they had collected or ought to have collected it —or unless they had been guilty of some breach of duty in relation to the subject matter of the claim — -it was obviously unjust to make them debtors in account therefor. The proper course would have been, in regard to this- item, and any others as to which the liability of the executors depended upon future events, to reserve them for a further account, *338which might be prayed for, after a decree in part upon the matt;ers account definitively ascertained.

„ of Ward v. Dev! Eq! 509, and Bryant adm &c v. Scott 3at.eÍ55,n approved

We see no error in over-ruling the other exceptions. The prstj seCond, third, eighth, eleventh, and fourteenth could not fitly be regarded as exceptions-to the finding of the commissioner, for they assigned no errors therein, but alleged matters proper to be addressed to the discretion of the court upon a motion for further time to take the accounts. The fourth exception, for that the commissioner had not reported what portion of the assets came to the hands of the executors respectively, was properly overruled, because the answer of the executors set forth a joint receipt and a joint administration of the assets. The fifth was properly overruled as an exception, because the matter therein alleged, that a necessary- party had not been brought before the court, though valid as an objection upon the hearing to the rendition of a decree, established no error in the commissioner.

The 7th exception was predicated upon the position taken in the answers, that under a proper construction of the will, the surplus of the testator’s estate was divisible per stirpes and not per capita. This position cannot be maintained. The cases of Ward v. Stowe, 2 Dev. Eq. Ca. 509, and Bryant Adm'r Britt, v. Scott, 1 Dev. and Bat. Eq. Ca. 155 are decisive upon this point. The 9th exception alleged that a suit bad been brought by Robert Foster to rescind a sale ° J made by the executors and to recover back the purchase money. Assuming this allegatien to be true, there seems no sufiicien t reason why the possibility of such a recovery should prevent the proceeds in the mean time from being regarded as assets in their hands.1 It would be otherwise if it appeared that the proceeds had not yet been received: Then prima facie the executors were not chargeable with them. The 10th and 16th were too vague and indefinite to present any point to the judgment of the court. The existence of the .claim alleged in the 12th exception does not appear to have been in any manner shewn to the commissioner or the court, and the pleadings did not bring it forward for consideration. The commissioner, therefore, was not guilty of any error in *339omitting all mention thereof. The 13th was properly overruled because the executors could not rightfully claim a credit for an expenditure, which they had not made, and which they might never make. The 15th exception, because the commissions allowed were not sufficient, appears to us to have been.altogether unfounded. It must be an extraordinary case which could justify the very liberal allowance of commissions for which the executors were credited in the account, within 1 per cent, of the largest rate of commissions which the law permits.

This court is, therefore, of opinion that the order confirming the report of the commissioner is erroneous as to the matter embraced within the sixth exception, and of course that the decree founded upon that report is to that extent erroneous.

But the decree is altogether erroneous in this, that, upon the pleadings, it appears that Ellis Foster has a joint interest with the petitioners in the legacy, for which this petition has been preferred, and the said Ellis Foster hath not been made a party thereto by any process or otherwise, nor is any reason alleged in the pleadings, wherefore he hath not been made a party.

The decree rendered below is therefore reversed in tolo, and the cause remanded to the Superior Court for further proceedings thereon, as the parties shall be advised and the course of the court permit. The plaintiffs must pay the costs of the appeal.

Per Curiam. Decree accordingly.