Jenkins, J., delivering the opinion.

The record does not disclose the reason upon which the Court below refused to pass the order or judgment sought by the plaintiff in error, but a sufficient one may be found without either a long or an astute search.. Such an one lies upon the surface.

The bill upon which plaintiff in error sought to engraft the order was filed to settle certain matters in controversy, between Ellen A. Durham and her husband, of the one part, and the executor of her former husband, of the other, in which this plaintiff in error had no interest. She was not originally a party. A decree predicated upon an agreement between the parties, made pendente lite, was rendered, adjusting all *315matters in controversy. Among other things, it was decreed that the executor .(defendant) proceed to execute the will of his testator.

After this decree had been rendered and partially executed, the plaintiff in error came into the Court below and asked to be made a party defendant to the bill. No one already a party seemed to feel interest enough in the application to resist it, and it was ordered accdrdingly, just two years after what purports, by its terms, to be a final decree. Having thus secured a place in the record, she forthwith moved the Court for a peremptory order, requiring the executor to pay to her a legacy, claimed under a nuncupative will, certified by the Ordinary to be on record together with a prior written will; and it is this order which the Court below refused to grant, to which the plainjtiff in error excepted.

It does not appear that the bill contained any allegation relative to her claim. Nor does it appear that she filed an answer, in the nature of a cross-bill, setting it forth, nor indeed any answer at all. Though nominally a party, she was still a stranger to the pleadings. She insists that under the direction, that the executor proceed to carry into effect the will, she has a right to enter the Court, at this side door, prove her legacy, and obtain a judgment for its payment without more ado. But this general direction must be understood as having reference to the parties litigant, and to the allegations made in the bill. The will requires that the testator’s debts be paid, and if the legatee’s application be allowable, upon the same reasoning, any creditor of the testator might engraft upon this decree a summary process for the collection of his debt.

If the claim be not contested there is no necessity for a judgment. If it be pleadings, mutual altercations between the parties, resulting in an issue, either of law or fact, are indispensable. But here, without any pleading, showing an agreement upon certain facts, the Court was asked to ignore the jury and pronounce a judgment, as upon an issue of law resting in parol. If there be any such practice in Chancery we are not aware of it. Let the judgment be affirmed.