1833. CAROW v. upon John E. Mowatt, the first administrator, through the medium of a suit at law against his personal representative; and the rule may, with propriety, be applied here, that where the remedy at law is difficult and doubtful, equity will lend MOWATT. its aid. When an executor or administrator is in full life and within the reach of a court of law or a citation from the surrogate, especially under the enlarged jurisdiction which he now possesses, it can hardly become necessary for a creditor, legatee or next of kin to resort to chancery in the first instance for the purpose of ascertaining a devastavit, and, at the same time, to make the sureties in an administration bond parties to the suit with a view to fix them. I do not mean to say that, in a plain case of this sort, a court of equity will entertain a bill against the sureties. What I mean is, that under special circumstances like the present, I think they may be brought before the court, in order to have their liability ascertained and payment compelled-so far as it may be necessary to make good the devastavit of their principal. I am aware of several decisions of the chancellors of South Carolina which appear to be at variance with those of Virginia and with the conclusion I have formed. So far as their opinions are reported, the point does not appear to have been much considered; and, indeed, it arose in cases where there was a complete remedy at law-nor were there any particular circumstances which rendered a bill in chancery against them in any way necessary. These cases are, The Executors of Bague v. Blacklock, 2. Dessau. 602.; Hoell and wife v. Blanchard, 4. Ib. 21.; Glenn v. Conner, Harper's Ch. R. 267. The decision in this last case, as reported, seems irreconcilable with the one immediately before it in the same volume: Maywood v. Butler, page 265. But, at any rate, I am convinced there is enough in the circumstances of the present case to take it out of the general rule which those decisions would appear to establish. Upon the whole, I must decide this bill proper as to all the parties who are made defendants. Then, as to particular directions in the decree. The complainant was a specialty creditor of Elias Mowatt, and, as such, entitled to a preference over simple contract creditors in the assets which were in the hands of John E. Mowatt, 1833. CAROW v. his administrator. The amount of the bond due to the com plainant's intestate would more than have absorbed the whole of such assets. Instead of applying the proceeds (thirteen MOWATT. hundred and eighty dollars) in this way, the administrator mingled the money with his own or used it in his business in such a way as not to be traced or identified. He thus became the debtor and personally responsible; and it is now payable out of his assets in the hands of his administrator. Still, as respects him and his estate, it is only a simple contract debt: Ram on Assets, 500.; Charlton v. Low, 3. P. Wms. 330, 331. If there should be a deficiency of assets to satisfy all the debts, this one can only be paid with others of the same class and in the order of administration; and the defendants, Waldron and James Mowatt, will be liable for the balance which may be wanted to make up the amount of assets wasted or misapplied. A reference must be had to take the accounts upon these principles, which will ascertain the actual amount of the devastavit; and upon the coming in and confirmation of the report, a proper decree can be made -until then, all further directions are reserved. The order now to be entered may, nevertheless, embrace the discharge of Martha Mowatt and all matters relating to her. 1833. KOHLER KOHLER and others v. KOHLER and others. v. KOHLER. Where a decree is had in a partition suit wherein an infant (amongst others) has been made a defendant, but no guardian ad litem has been appointed, nor order entered for appearance, nor bill taken as confessed against him, a purchaser under the decree will be discharged from his bid, even though this defendant may have since attained his majority and offers to release his interest: the decree being so far irregular as to be incapable of enrolment. The bill had been filed for a partition or sale; and the es- April 28th. tate was sold under a decretal order. Philemon H. Frost 1833. became the purchaser, but raised objections to the title; and Partition. a reference was had to a master to look into and examine Decree. Inthe objections. One of them was: that the bill had never fant. Costs. been taken as confessed against William F. Kholer, described as an infant in the bill, nor had he appeared or answered. Mr. Clarkson, for the complainants. Mr. W. C. Wetmore, for the purchaser. THE VICE-CHANCELLOR :-Several objections are raised May 5th. by the purchaser of the property sold in this suit; but it may be unnecessary to refer to more than one of them. The decree in the cause appears to have been obtained without any proceedings having been taken against the infant defendant, William F. Kohler; no guardian ad litem was appointed, no appearance was in any way entered, nor was the bill taken as confessed against him. The irregularity is attempted to be obviated by an offer of a release of all interest by William F. Kohler, who, it is said, has now come of age. But this is, at present, but a suggestion from counsel; and, indeed, even 'though the proposition came in a tangible shape, still it comes back to the sufficiency of the decree-as to other parties. 1833. HART v. BULKLEY. The 187th rule guides the clerk of this court in the enrolment of decrees. He must mention the defendants who have appeared and answered and those who have suffered the bill to be taken as confessed against them, as well as those against whom the same is taken as confessed for want of appearance, distinguishing such as neglected to appear after a personal service of process from those who are proceeded against as absentees. And, amongst other things, all such proceedings in the cause must be recited as may be necessary to a correct understanding of the decree. Now, how can the clerk make up the enrolment of this decree? The officer himself would necessarily find out the error; and it is of such a nature as to allow the decree to be set aside, if impeached for error. The purchaser, as to many parties, must take his title through the decree; and, consequently, a mere release by William F. Kohler will not make good the enrolment. The purchaser must be discharged; and he is entitled to his costs. There is no fund in court out of which they can be paid; but the practice is to direct the complainants to pay them in the first instance. Let this be done here; and the parties adverse to the purchaser must adjust the amount amongst themselves. HART V. BULKLEY, administrator of Woop, deceased. April 29th. 1833. Rights of a surviving trustee against the estate of a Where a co-trustee mingles the trust funds with his individual monies so as not to be dis tinguished, and dies, the other trustee (as trustee) cannot file a bill against his administrator to have funds in his hands delivered over; but the surviving trustee must come in pari passu with the creditors of the intestate. The bill in this case was filed for the purpose of obtaining an amount of money in the hands of an administrator of a trustee, which was claimed by the surviving trustee. 1833. HART v. On the thirtieth day of November one thousand eight hundred and twenty-nine, Moses Q. Wood assigned his property to the complainant, Philip Hart, junior, and to Walter R. Wood, since deceased (two of his creditors), in trust to pay BULKLEY. his debts. The assignment contained a list of the creditors; and divided the order of payment into two classes. The first class was to be paid in full; and the second class thirtythree and a third per cent.—and there was a covenant to pay so much. The trustees accepted the trust and acted under it. There was an allegation of Walter R. Wood having collected several thousand dollars; and of having, on the first day of January, one thousand eight hundred and thirty, the sum of three thousand and four hundred dollars on hand. He died in the month of March following, intestate. The defendant, John L. Bulkley, was appointed his administrator by the surrogate of New York. The complainant charged that the above amount of trust-fund ought to be paid over to him as the surviving trustee; and prayed an account and payment. The defendant answered, by admitting the death of Walter R. Wood; and that he was the brother of the debtor Moses Q. Wood, and brother-in-law to the defendant; his administering; the making out, by Moses Q. Wood, of several other assignments, some to the complainant and Walter R. Wood jointly, and others to the latter alone, to cover implications and responsibilities; accounting for the disposition of the assigned property; and detailing many particulars, but resulting in an admission of there being a balance of nine hundred and eighty-four dollars and ninety-one cents, the avails of the trust-property, due from his intestate at the time of death. The defendant set up the insolvency of the estate; that the same would not pay more than thirty or forty cents on the dollar; and insisted upon the defendant's being liable to pay over a rateable proportion to the complainant, and only equal to the other creditors. He stated that the money on hand, at the time of the intestate's death, was only one hundred and forty-one dollars and ninety five cents; that the avails of the trust-property was not kept separate from the other monies of the intestate, but was mingled; and that the balance of nine hundred and eighty-four |