Gill Armstead and William Armstead were brothers and partners in business, residing in the county of New Kent. Gill Armstead died in the year seventeen hundred and sixty-two, having first made his will which was duly admitted to record, by which he gave his slaves and personal estate to be equally divided among *Page 267 his six children as they should come of age or marry; and he appointed his wife Betty, his brothers William and John Armstead, and his friends Richard Allen, sen., Richmond Allen, and Dudley Williams, sen., his executrix and executors; all of whom qualified.

Previous to April 1784, Betty Armstead the widow and executrix of Gill Armstead, had married John Lewis, and William and John Armstead and Richard Allen, sen., the executors of Gill, had died. On the 7th of that month a bill was exhibited in the high Court of chancery at Richmond, by William Armstead, Miles Selden, jr. and Betty his wife, John Cary and Susanna his wife, Mary Burwell, John Ambler and Frances his wife, and Martha Armstead, the said William Armstead and the female plaintiffs being the children and legatees of Gill Armstead, against Dudley Williams and Richmond Allen surviving executors of Gill Armstead, William Clayton, administrator, and Mary Armstead, administratrix of William Armstead the brother and executor of Gill, and William Armstead administrator of John Armstead, who was also a brother and executor of Gill Armstead, the object of which suit was to procure a settlement and distribution of the estate of Gill Armstead in the hands of his executors.

Dudley Williams and Richmond Allen, the surviving executors, filed their answer, stating that the management of the estate had been wholly left to William and John Armstead and the widow Betty, and that the respondents never interfered with the estate until after the death of William and John Armstead, when they possessed themselves of such of the testator's books and papers as they could find; and although the books shewed large balances in some instances, due the testator, yet they could collect none of them; they having been paid either to Gill Armstead in his lifetime, or to their co-executors William and John Armstead, after his death. The bill was also answered by Clayton and *Page 268 Mary Armstead, executor and executrix of William Armstead, stating their willingness to account as the Court should direct: And John Armstead's administrator answered, claiming that his intestate was in advance to the estate of his testator; and saying that he was ready to account.

In 1786, Betty Lewis the executrix of Gill Armstead, was made a defendant, and filed her answer: and in November of the same year a decree was made directing, 1st. That Betty Lewis. Dudley Williams and Richmond Allen, render an account of the administration of their testator's estate. 2d. That William Clayton and Mary Armstead render an account of their intestate William Armstead's administration on Gill Armstead's estate. 3d. That William Armstead, administrator of John Armstead, render an account of the administration of said John upon the estate of Gill Armstead.

Under the foregoing decree commissioner Hay made a report in March 1798, shewing due from the estate of William Armstead the executor, to the estate of Gill Armstead, the sum of £ 2168. 18. 6¼.; and from the estate of John Armstead the sum of £ 422. 9. 3½. The commissioner then proceeded to state accounts between the executors and the legatees of Gill Armstead, based on these balances, shewing the amount due to each legatee.

The balance found against William Armstead seems to have arisen out of the transactions of the partnership which had existed between himself and Gill Armstead; of which partnership no mention was made in the bill or in any of previous proceedings.

In June 1799, all the defendants being dead, subpœnas to revive the suit against the representatives of William and John Armstead, were awarded; and leave was given the plaintiffs to amend their bill by making William Dandridge a defendant. William Dandridge was the husband of Susanna, the only child of William Armstead the executor of Gill Armstead; and although *Page 269 not a party in the cause when the accounts were taken, was in fact the party principally interested, and was the party who attended to the settlement of the accounts. Although he seems to have acknowledged the service of a subpœna upon him, he was not made a party by an amended bill during his lifetime. In the early part of the year 1803 he died, having by his will appointed his wife Susanna and William Langborne and John Bassett his executrix and executors; and Susanna Dandridge alone qualified, in June 1803.

In 1804 or 1805, Susanna Dandridge having intermarried with David Dorrington, the plaintiffs filed a bill of revivor and supplement, in which were recited the previous proceedings in the cause, the leave to amend the bill by making William Dandridge a defendant, granted in 1799, the issuing ofsubpœnas to revive under that order, the death of William Dandridge, the qualification of his widow as executrix and her intermarriage with Dorrington, and the appointment of William Langborne and John Bassett as executors of Dandridge. The bill charged the existence of the partnership between Gill and William Armistead; that at the death of Gill, William was indebted to the concern; and that after Gill's death, he possessed himself of the partnership effects to a considerable amount, and took upon himself the entire management of the said Gill's personal estate, as executor. That he kept open the partnership store for twelve months after Gill Armstead's death, receiving the profits; at the end of which time he sold off the stock, and took into his possession all the books, papers, bonds, c. of the partnership, and of Gill Armstead. That after the marriage of William Dandridge with Susanna, the only child of said William Armstead, the administrators paid over and delivered up to Dandridge, in right of his wife, all the property of William Armstead, and whatever was due from them as his administrators, before they had accounted *Page 270 for any of said William Armstead's transactions either as surviving partner or as executor of Gill Armistead. That there was then no personal representative of the estate of William Armstead; and that under these circumstances the complainants had a right to follow the personal assets of William Armstead in the hands of William Dandridge and his representatives, for satisfaction of their claims against him as surviving partner and executor of Gill Armstead. They therefore made Dorrington and wife, Bassett and Langborne defendants, and asked for satisfaction out of the estate of William Dandridge.

On the 12th of May 1804, on the motion of the sureties of Mrs. Dorrington as executrix of Dandridge, the Court made an order on Dorrington and wife for counter security; and on the 3d of June 1805, Dorrington appeared, and for himself and his wife consented that the estate of William Dandridge should be delivered to the sureties; and the same was ordered accordingly: whereupon William Langborne qualified as executor of William Dandridge.

Dorrington and wife answered the amended and supplemental bill, resisting the pretensions of the plaintiffs on various grounds. There was also a subpœna to answer the bill, issued in November 1805, and returned served on Langborne; and an attachment was issued against him in July 1806, the service of which he acknowledged; and in October 1806, he filed his answer, in which he relied on the great lapse of time since the death of Gill Armstead as furnishing a presumption that all matters of the partnership had been duly settled, and the plaintiffs satisfied all proper demands; and in aid of this presumption he relied on the facts that the plaintiffs had many years before received their proportions of Gill Armstead's estate without any reservation as to the partnership; that several of the plaintiffs afterwards gave their bonds to William Armstead, which they *Page 271 would not have done if there had been no settlement; and that John Armstead, the acting executor, actually received a large portion of the goods, from which a settlement of the partnership should be inferred. He further denied the right of the plaintiffs to call the defendant, or the estate of his testator, to account concerning the matters mentioned in the bill; and he pleaded the statute of limitations.

It appears that on the 29th of December 1806, Dorrington and wife paid over to Langborne assets of the estate of William Dandridge to the amount of 20,698 dollars 17 cents; and on the same day he paid to the legatees of Dandridge 20,529 dollars 48 cents: and it also appears that he received other assets, amounting to upwards of 10,000 dollars; and that his payments to the legatees amounted to upwards of 27,000 dollars of principal.

In 1815 William Langborne died, and John Bassett having refused to qualify as executor of William Dandridge, the estate was committed to Thomas H. Prosser, high sheriff of the county of Henrico. The cause came on to be heard on the 1st day of June 1816, when it was revived in the name of Abraham A. Green and Elizabeth A. A. Cocke, children of Martha Green, who was Martha Armstead, and by consent of the plaintiffs was dismissed as to the representatives of John Armstead; the plaintiffs not wishing to prosecute their claim against his estate: And the Court, holding that it was not necessary to bring the representatives of the deceased executors of Gill Armstead, or of the deceased administrators of William Dandridge, before the Court, and reciting that it appeared that William Armstead, whose representatives, Mary Armstead and William Clayton, were originally parties to this suit, was the principal acting executor of Gill Armstead, and surviving partner of said Gill and William; and that he received the greater part of the debts of said partnership, as well as *Page 272 those of said Gill in his individual right, and that after his death all the estate of the said William Armstead, as well as the books, papers and evidences of debts, belonging as well to the, said partners as to the said Gill Armstead, came into the hands of William Dandridge, formerly a party in this cause, who intermarried with Susanna, the only child of said William Armstead, now the wife of David Dorrington, both of whom are defendants; and overruling all the exceptions of the defendants, was of opinion that the plaintiffs had a right to follow the estate of William Armstead which came to the hands of William Dandridge, who it appears possessed himself of a sufficiency of that estate, as well as of the debts due to Gill Armstead's estate, to pay the claims of the plaintiffs found to be due to them respectively. It was therefore adjudged, ordered and decreed, that the defendant Thomas H. Prosser, committee of the estate of William Dandridge, out of the estate of the said William which had or might come to his hands to be administered, should pay to the plaintiff William Armstead, £ 490. 4. 8½., with interest at five per cent.per annum on £ 361. 9. 9., part thereof, from the 11th day of May 1778, till paid; to the plaintiff Betty Selden, in her own right, £ 245. 7. 10¼., with like interest on £ 243. 10. 11. from the 29th of October 1774, till paid; to the plaintiff Susanna Cary, in her own right, £ 348. 13. 8., with like interest from the 16th of March 1777; to the plaintiff William Selden, administrator de bonis non of Joseph Selden, £ 188. 6. 7½., with like interest from the 26th November 1774, in right of his deceased wife Mary; to John Ambler, surviving husband of his deceased wife Frances, £361. 9. 9., with like interest from the 25th October 1767; to Abraham A. Green and Elizabeth A. A. Cocke, children of Martha Green, who survived her husband, £ 361. 9. 9., with like interest from the 25th of October 1767; and their costs. *Page 273

On the 3d of June 1816, administration de bonis non on the estate of William Dandridge, was granted to Bartholomew Dandridge his son, who executed a bond in the penalty of £ 20,000., with Thomas H. Terrill and three others as his sureties; and thereupon took an appeal from the foregoing decree of the 1st of June 1816. On the 11th of December 1821, the cause was decided in the Court of appeals, when the Court, for reasons stated in the decree, approved the decree of the Court of chancery affirming the report of the commissioner, and overruling the exceptions thereto; notwithstanding some of the plaintiffs had not strictly entitled themselves to a decree by taking administration on the estates to which they were so respectively entitled; and it was held that under the circumstances of the case the Chancellor would have been justified in decreeing payment to these appellees respectively, of the sums mentioned in the decree, on their giving bond with security to the satisfaction of the Court, to the appellant to indemnify him from any claim which might be made by any legal representative of the person in whose right such payment was decreed. The decree was therefore reversed, with costs, and the cause was remanded to the Court of chancery to have a decree entered according to the foregoing principles; and in case of a failure to give such bonds, to have the suit revived in the name of the legal representative of the party in whose right the claim is, and proceeded in to a final decree.

On the 18th of July 1822, a decree was made in the Chancery court in conformity with the decree of the Court of appeals, in favour of the plaintiffs respectively, against Bartholomew Dandridge, administrator de bonis non of William Dandridge, for the sums mentioned in the decree of the 1st of June 1816, except as to Elizabeth A. A. Cocke. As to her, the decree was, that "it being suggested that Elizabeth A. A. Cocke, one of the plaintiffs, hath intermarried with ________ Booth, this cause *Page 274 is retained for further proceedings as to that plaintiff; and leave is given the said Booth and wife to file a bill of revivor and supplemental bill. At the time this decree was entered Bartholomew Dandridge's powers as administrator had been revoked, and David Dorrington and his wife had been allowed, at the September term of the County court of Henrico, in 1821, to give the counter security required in 1805, and to resume the administration of William Dandridge's estate. And thus terminated this suit of Armstead v. Armstead.

In the month of September 1826, the bill in the present suit of Armstead v. Dandridge was exhibited in the District Court of chancery then held in Williamsburg, by Gill Armstead and Thomas B. Allen, administrators of William Armstead deceased, one of the children of Gill Armstead deceased, and one of the plaintiffs in the former suit ofArmstead v. Armstead, Betty Selden, Susanna Cary, William Selden, administrator of Joseph Selden, John Ambler and Abram A. Green, being the same plaintiffs as in the former suit (except Elizabeth A. A. Booth, who had obtained no decree, but as to whom the cause was retained and leave to amend the bill given,) against David Dorrington and his wife Susanna, executrix of William Dandridge deceased, William Duval, the administrators of John Pendleton, and the committee and administrator of John Adams, securities of said Susanna as executrix aforesaid, Burwell Bassett administrator of William Langborne, who was one of the executors of William Dandridge, Bartholomew Dandridge administrator de bonis non of William Dandridge deceased, and in his own right as heir and devisee of said William Dandridge, John Williams and Scianna his wife, Eleanor Dandridge, John B. Richardson and Lavinia his wife, and Robert F. Dandridge, heirs and devisees of the said William Dandridge. The object of this bill is to carry into effect the decree obtained in the same Court by the plaintiffs against Bartholomew *Page 275 Dandridge, as administrator de bonis non of: William Dandridge; to which decree and to all the proceedings on which it is founded, reference is made by the bill as part thereof.

The bill avers, that the said decree has been unavailing, because the estate of William Dandridge has been all wasted or sold, so that no execution can reach it, although his estate is fully able to pay all the demands against it; that Susanna Dandridge, the widow of William, qualified as his executrix, and soon thereafter intermarried with Dorrington, who received considerable estate of said William into their hands, which they wasted and converted to their own. use; that William Langborne also qualified as executor of said William Dandridge, on the 3d of June 1805, and received a large estate into his possession, which he also wasted or misapplied; that Bartholomew Dandridge qualified as administrator de bonis non of William Dandridge, and received a large estate into his hands of the said William Dandridge, which he also wasted and misapplied; that the said William Dandridge left a large real estate, which is in the hands of his heirs and devisees, and which may be liable to the plaintiffs' demands, in the event that the personal estate was expended in the payment of specialty debts, or to the extent that it was so consumed; that some or all of the defendants are liable for the plaintiffs' said decree, and relief is accordingly prayed against them.

The administrators of John Pendleton, one of the sureties of Susanna Dorrington as executrix of William Dandridge, answered, averring their ignorance of the matters charged, and calling for proof of them, and insisting that the claims of the plaintiffs should be regarded as stale demands, their intestate Pendleton having been dead more than twenty years, and no demands ever before made. *Page 276

William Duval, another surety of Mrs. Dorrington, answered the bill to the same effect.

Burwell Bassett, administrator of William Langborne, also answered the bill, admitting that Langborne was executor of William Dandridge, and calling for proper and legal proof of the plaintiffs' demands. He denies that Langborne ever wasted the estate of William Dandridge, or any part thereof, and avers that the said estate was duly and fully administered by Langborne in his life, and his administration duly settled by the respondent, since his death, under an order of the Richmond Chancery court; upon which settlement the balance, and divers bonds, c, for the payment of money found among the papers of Langborne, and appearing to be due to William Dandridge's estate, were paid and handed over to Bartholomew Dandridge, the administratorde bonis non of William Dandridge, under the decree of said Court; that since the death of Langborne, the heirs or devisees of William Dandridge had divided among themselves, by sale under a decree of said Court, a large real estate, amounting to about 60,000 dollars; that the complainants had prosecuted their claims against Langborne, in his lifetime, and failed to establish them against him, and should not now be permitted to disturb the respondent. He exhibits with his answer, Bartholomew Dandridge's receipt for sundry bonds, certificates of stock, c, handed over to him.

In 1827 the death of Susanna Dorrington was suggested, and the cause was revived against Mosby Sheppard, sheriff of Henrico and committee of her estate, and of the estate of William Dandridge; also the death of Bartholomew Dandridge was suggested, and the cause revived against Catharine Dandridge, his administratrix.

At the January term 1828, a decree was rendered for the settlement of the following accounts, viz: 1st. An account of Bartholomew Dandridge's administration of *Page 277 William Dandridge's estate. 2d. Of Catharine Dandridge's administration of Bartholomew Dandridge's estate. 3d. Of William Langborne's administration of William Dandridge's estate, taking as prima facie true, liable to be surcharged and falsified by the plaintiffs, the account settled under the decree of the Richmond Chancery court, and relied on in the answer of the defendant Bassett; and in taking this account the commissioner was directed "to separate the payments made to the heirs and legatees of William Dandridge deceased, and the credits arising from rents." 4th. An account of Burwell Bassett's administration of Langborne's estate, unless he shall admit assets, c. 5th. An account of all the real estate in the possession of the heirs or devisees of William Dandridge, derived by devise or descent from him, and if aliened, to whom, at what time, and for what price. 6th. An account of all the specialty debts, if any, of William Dandridge, paid out of his personal estate.

In January 1829, the commissioner, Anderson, returned his report under the said decree:

First. An account of Bartholomew Dandridge's administration of William Dandridge's estate, shewing due to the estate of William Dandridge the sum of 2095 dollars 12 cents, on 14th February 1821, interest added to the 31st December 1828, 989 dollars 93 cents, total 31st December 1828, 3085 dollars 5 cents. This account is settled from an audit of Henrico County court, returned in the lifetime of Bartholomew Dandridge.

Secondly. An account of Catharine Dandridge's administration of Bartholomew Dandridge's estate, shewing due to the estate of Bartholomew Dandridge, on 31st December 1828, the sum of 1244 dollars 84 cents.

Thirdly. An account of payments by Langborne to William Dandridge's devisees and legatees, and rents received, shewing principal paid over to William Dandridge's *Page 278 children and widow, 23,249 dollars 57 cents, over and above the rents credited in said account. This account is taken from the account rendered under the order of the Richmond Chancery court before referred to, of Langborne's administration of William Dandridge's estate, by separating the items of payment to the, legatees, and rents of real estate therein contained.

The commissioner reports, that Bassett had settled no account of his administration of Langborne's estate, nor had he admitted assets, and that none of the defendants, heirs and devisees of William Dandridge, had rendered the accounts required of them as to the real estate devised or descended.

Various exceptions are filed to the said report by the plaintiffs and the defendant Bassett, administrator of Langborne.

These exceptions of Bassett were for failing to credit the estate of William Dandridge and to charge Bartholomew Dandridge's estate with various sums of money which it was alleged Bassett, as administrator of Langborne, had paid over to Bartholomew Dandridge, as administrator de bonisnon of William Dandridge, under a decree of the Chancery court. After the death of Langborne and qualification of Bartholomew Dandridge, the latter filed a bill in the Chancery court at Richmond against Burwell Bassett, as the administrator of William Langborne, to compel Bassett to pay over to him the assets of William Dandridge's estate which were in the hands of Langborne at the time of his death. The commissioner to whom the accounts were referred reported the sum of 2872 dollars 66 cents as in the hands of Langborne, as executor of William Dandridge; and this sum was paid over to Bartholomew Dandridge under the decree of the Court. Of this sum 777 dollars 54 cents was expended in a due course of administration, leaving a balance in the hands of Bartholomew *Page 279 Dandridge of 2095 dollars 12 cents, as due the 14th of February 1821. The commissioner also reported two bonds given by Bartholomew Dandridge to Langborne, one for purchases at a sale of the personal estate of William Dandridge made by Langborne, for 2087 dollars 50 cents, due 15th January 1807, and the other for 2000 dollars, for money of William Dandridge's estate loaned by Langborne to Bartholomew Dandridge the 15th of July 1814. There was also 2228 dollars due from Dorrington for purchases at the sale, with interest, also 600 dollars for rent of real estate, and some other. bonds of third persons due to William Dandridge's estate and held by Langborne, the obligors in which the commissioner reported to be insolvent. These debts were charged to Bartholomew Dandridge, administrator of William Dandridge, in the commissioner's report; and the Court, approving the report, decreed in his favour against Bassett, as administrator of Langborne, for the balance so ascertaiaed to be due, and he paid over the amount and transferred the bonds to Bartholomew Dandridge.

At the July term, 1829, the cause, which was then dismissed as to Betty and William Selden, came on to be heard on the said report, c, when the Court of chancery, being of opinion that the powers of Susanna Dorrington, as executrix of William Dandridge, never were revoked or annulled in her lifetime, and that the grant of administration de bonisnon to Bartholomew Dandridge was a nullity, and that the estate of William Langborne was not bound by the decree against Bartholomew Dandridge, the administrator de bonisnon, being no party or privy thereto, adjudged and decreed, that the plaintiffs' bill be dismissed as to the defendants Catharine Dandridge, administratrix of Bartholomew Dandridge, and Burwell Bassett, administrator of William Langborne, without prejudice to any other or further claim which the plaintiffs in any other suit may *Page 280 properly assert against said estates. And it was then further ordered and decreed, that the defendant Mosby Sheppard render before one of the commissioners of the Court an account of Susanna Dorrington's administration of William Dandridge's estate, and an account of his own transactions as committee of said Susanna Dorrington; and that the defendant David Dorrington render an account of his actings as husband of said Susanna Dorrington, and thereby executor of said William Dandridge.

From so much of this decree as dismissed the bill as to the defendants Dandridge and Bassett, the plaintiffs obtained an appeal; and on the 16th February 1836, the decree was reversed and annulled, and the cause remanded to the Court of chancery for further proceedings to be had. The opinions delivered by the Judges, copies of which are in the record, shew the grounds of reversal. As to Bartholomew Dandridge they say, that whether his appointment as administratorde bonis non of William Dandridge was legal or illegal, neither he or those representing him could be received to deny that he was such administrator; that as such he had instituted a suit against the administrator of Langborne, the former executor, and had received a large amount of assets which he should be held liable for; he and his sureties being alone responsible therefor. As to Langborne's estate, they say it was error to dismiss the bill as to him, merely because he was no party to the decree.

The cause came back from the Court of appeals in 1836, when the plaintiffs, Gill Armistead and Thomas B. Allen, administrators of William Armstead, being dead, it was revived in the name of John Tabb, sheriff, and committee of William Armstead's estate, and in the name of Gill A. Cary, administrator of Susanna Cary, who had also died. *Page 281

On the 3d July 1837, and the 24th November 1837, the complainants; together with Elizabeth A. A. Booth, (who had obtained no decree,) filed two amended bills, without having obtained the leave of the Court to do so: and on the 14th May 1838, the said amended bills, and all the proceedings thereon were ordered to be set aside. And thereupon leave was granted the plaintiffs to file a supplemental and amended bill, and to make new parties defendants.

In pursuance of the leave thus given, the plaintiffs in the bill of 1826, (except Betty Selden and William Selden, as to whom the suit was dismissed in 1829,) together with Elizabeth A. A. Booth, exhibited their supplemental and amended bill, on the 14th of May 1838, reciting the decree of the 1st June 1816, (as a decree rendered against Bartholomew Dandridge, as administrator de bonis non of William Dandridge,) the decree of the Court of appeals of the 11th December 1821, and the decree of the Chancery court of the 18th July 1822, and charges that the same has been unavailing; that the complainant Elizabeth A. A. Booth, when, under age, intermarried in 1813, with Josiah H. Cocke, who soon thereafter died, she surviving, and in 1817 she intermarried with William Booth, and soon after removed to the state of Tennessee, where she has remained ever since under coverture, until the 23d October 1833, having no knowledge of said decree and the pendency of this suit, until very recently, c. This bill charges that Bartholomew Dandridge received a very large amount of assets, and wasted and converted the same to his own use, having given bond in the penalty of £ 20,000 with security; that Burwell Bassett received a large estate of William Langborne, which he delivered over to his only son and distributee, William Langborne, junior, who soon died, leaving a will, by which he gave his whole estate to certain persons named in the bill, and made Burwell Bassett his *Page 282 executor, who distributed the estate amongst the legatees; that these assets of William Langborne, the elder, thus distributed to the legatees of the younger Langborne, are liable to the payment of the plaintiffs' demands. To this bill are made defendants Burwell Bassett, executor of William Langborne, the younger, Robert M'Candlish, administrator debonis non of William Langborne, the elder, Catharine Dandridge, administratrix of Bartholomew Dandridge, the representatives of the deceased sureties of Bartholomew Dandridge, as administrator de bonis non of William Dandridge, Thomas H. Terrell, the surviving security of said Bartholomew Dandridge, and all the legatees of William Langborne, the younger, deceased.

To this supplemental and amended bill Burwell Bassett, in his lifetime, filed his answer, setting up the following grounds of defence, viz: — 1st. He calls for proof of the decrees referred to in the bill, especially the decree which the bill seeks to enforce. 2dly. He calls for proof of the execution of the bonds required by the decree of 1822. 3dly. He insists that the said decrees and proceedings are not binding on him, or the estate of his intestate William Langborne, they being neither parties or privies thereto, and cannot be used even as evidence against them. 4thly. If the suit shall be entertained, he denies that the plaintiffs have any just claim or right to recover against the estate of William Armstead, or William Dandridge, and insists that they be held to proof of such claim, and that the accounts be referred anew to be re-taken upon legal evidence. 5thly. That he is advised there is great doubt whether William Langborne was ever the true legal executor of William Dandridge, and calls for the proof. 6thly. He denies the right of John Ambler to recover choses in action due to the wife, not being the personal representative of the wife, 7thly. Denies that William Langborne wasted or misapplied the assets *Page 283 of William Dandridge, and avers that he retained in his hands assets sufficient to satisfy the plaintiffs' demands, if established, which assets, being in Lang borne's hands at his death, came to the hands of said Bassett, as his administrator, and were subsequently delivered and paid over to Bartholomew Dandridge, as administrator de bonisnon of William Dandridge, under a decree pronounced by the Chancery court of Richmond, in a suit brought against him by the said Bartholomew Dandridge, as administratorde bonis non aforesaid; that to the extent of the assets thus paid over the complainants can never look to the estate of Langborne, or to the defendant Bassett, but must resort to Bartholomew Dandridge and his sureties. 8thly. That he has been informed refunding bonds were required by Langborne, and given when he made payments to the legatees of Dandridge and wife. He insists that the plaintiffs be compelled to resort to them. 9thly. That William Dandridge left a large real estate, and as his heirs and devisees are before the Court on the bill of 1826, he insists that resort should be compelled to them. 10thly. That he, the said Bassett, has no assets of William Langborne in his hands, having legally and fully administered all that ever came to his hands as administrator of said Langborne, and paid over the balance to William Langborne, junior, the sole distributee, before he had notice of this suit, or the claims of the plaintiffs; that the same estate subsequently came to his hands as executor of the younger Langborne, and was distributed according to his will, by decree rendered in the suits of "Taliaferro v. Bassett," depending in this Court, which are referred to as part of the answer, together with the refunding bonds executed on such distribution; that if the plaintiffs have any claim against him as representative of Langborne, they should be compelled to resort to the legatees of the younger Langborne. 11thly. He denies *Page 284 the right of Elizabeth A. A. Booth, to unite with the plaintiffs in this cause in filing the supplemental bill referred to, and insists that the bill be dismissed as to her; but if the bill should be entertained as to her, he requires proof of the allegations touching her infancy, coverture, non-residence, and ignorance of her rights and the decree in her favour. 12thly. Pleads the act of limitations against the claim of Elizabeth A. A. Booth. 13thly. Insists that the said claim of Elizabeth A. A. Booth should be presumed to be settled, and regarded as a stale demand. 14thly. That all the claims of the plaintiffs should be regarded as stale demands. 15thly. That the complainants, if entitled to recover, should first resort to the assets in the hands of Bartholomew Dandridge, and pursue him and his sureties therefor; and if their claims exceed the assets paid over to him, for the excess they should resort to the legatees and devisees of William Dandridge; and if they prove insufficient, then to the legatees of Langborne, unless the Court shall be of opinion that Langborne is not responsible at all for the payment over of the assets of Dandridge. And lastly. Bassett claims the benefit of any and every act of limitations applicable to the circumstances of the case.

The legatees of William Langborne, the younger, all answered the bill, relying upon the same matters set forth in the answer of the defendant Burwell Bassett, except that they were not, under any circumstances, to be made liable for any part of the plaintiffs' demands. And especially they insist, that if any question shall arise involving liability for the assets paid over by Burwell Bassett under the decree of the Richmond Chancery court to Bartholomew Dandridge, they are not to be held responsible therefor, but the said Bassett personally should be held liable, if that payment shall not be held good. *Page 285

The defendant Thomas H. Terrill demurred and answered. The demurrer was overruled. His answer denies the justice of the plaintiffs' demands, and calls for proof of them. He pleads the act of limitations of 1826. in his defence; also avers that the powers of Bartholomew Dandridge were revoked in September 1821, before the rendition of the decree of the Court of appeals; denies that Bartholomew Dandridge ever was legally the administrator of William Dandridge, or that he ever received any assets as such; says that the receipt filed with the answer of Bassett was executed after his powers as administrator were revoked, and that the bonds, c, received were worthless.

On the 10th day of November 1843, several of the parties having died, there were revivals entered against certain of their representatives, and the case was argued and time taken for consideration.

Afterwards, on the 17th of November 1845, a decree was pronounced, ordering these, among other enquiries, before a commissioner, to wit: — 1st. As to the value of the property, real and personal, of William Langborne, deceased, received by his devisees and legatees, and whether it was sufficient to pay the demands of the plaintiffs. 2d. As to the proportions in which such devisees and legatees should make payment to the plaintiffs; ascertaining also the contribution from Burwell Bassett's estate, on account of the life estate of his wife in one fourth of the property of William Langborne, junior. 3d. As to the amount of the demands of the plaintiffs; taking the decree of 1822 as a guide — but deducting, as of the 14th of February 1821, 2095 dollars 12 cents, as the sum for which Bartholomew Dandridge's estate would be responsible, in case Burwell Bassett's exceptions (which were left undecided) should be overruled. The same decree dismissed the bill as to the defendant Terrill, but without costs; but did not pass upon the claim of *Page 286 the plaintiff Elizabeth A. A. Booth. Under this decree, the commissioner returned a report, to which exceptions were taken by Bassett and by Langborne's devisees and legatees. Afterwards the devisees and legatees of Langborne filed exceptions to the report of commissioner Anderson, filed in 1828, similar to the above mentioned exceptions of Burwell Bassett, as to which the above mentioned decree gave no decision.

The exceptions to the report of 1828 have been already stated. The exceptions to the last report, which it is material to notice, are 1st. For applying the amount due from the estate of Bartholomew Dandridge to the interest of the debt due from the estate of William Dandridge, instead of applying it to the principal. 2d. For diminishing the portion of that sum applicable as a credit upon the amounts due to the respective plaintiffs, by dividing it among not only the plaintiffs, but Betty Selden and Joseph Selden, as to whose claims the bill had been dismissed. 3d. For charging the defendants with the sum of 2762 dollars 60 cents as due Elizabeth A. A. Booth; she not having obtained a decree for any amount in the decree of the 18th of July 1822. 4th. For charging the defendants, the legatees of William Langborne, jr., with interest upon the appraised value of the slaves received by them from the time they were received. 5th. For charging them with interest upon the value of land received by them from the time received.

When the cause came on to be finally heard in May 1847, the Court directed a special statement to be made, which was adopted as the basis of the decree, and is referred to in the decree of this Court as marked XX. This statement disregards the exceptions of the defendants to the report of 1828; but is conformed to the first and second exceptions above mentioned. It retains the charge in favour of Mrs. Booth; and the fourth and fifth exceptions are not passed upon, as the *Page 287 principal of the estate of William Langborne, jr., received by the defendants, his legatees and distributees, was more than the amount of the decrees against them respectively, except Mrs. Burwell Bassett, to whom he gave the one fourth of his estate for her life. The commissioner in his report charged her with interest on the personal estate received by her, 2922 dollars 70 cents, and on real estate, 1173 dollars 15 cents, = 4095 dollars 85 cents, and charged her with a proportionate, share of the debt imposed upon the legatees and devisees of William Langborne, jr. In the statement "XX" she is charged with one fourth of the debt. Mrs. Bassett died in the year 1834; and in the same year the legatees and devisees in remainder of William Langborne, jr., filed their bill against Burwell Bassett for a division and distribution of the estate of their testator which had been allotted to her for life; and in that suit the property was sold, and the proceeds were divided among the complainants in 1835 and 1836.

Statement XX ascertained the amount due from the estate of Bartholomew Dandridge on the 1st day of June 1846, to be 5400 dollars 50 cents, of which 2095 dollars 12 cents was principal. It ascertained that there was due to the plaintiff, William Armstead's representative, 5795 dollars 39 cents, of which Bartholomew Dandridge's estate was charged with 1348 dollars 69 cents, leaving 4446 dollars 70 cents to be paid by the legatees of Langborne; and it was apportioned among them. The statement ascertained the debt due to Susanna Gary's estate to be 5395 dollars 21 cents., of which Bartholomew Dandridge's estate was charged with 1255 dollars 56 cents, leaving 4139 dollars 65 cents to be paid by Langborne's legatees; and which was apportioned among them. The debt due John Ambler's estate was 6007 dollars 78 cents, of which Bartholomew Dandridge's estate was charged with 1398 dollars 12 cents, leaving 4609 dollars 66 cents to be paid by *Page 288 Langborne's legatees; which was also apportioned among them. The debt due Abraham A. Green was 3003 dollars 89 cents, of which Bartholomew Dandridge's estate was charged with 699 dollars 6 cents, leaving 2304 dollars 83 cents to be paid by the legatees of Langborne. And the debt due Elizabeth A. A. Booth was the same in all respects with that of Abraham A. Green.

The decree of the Court overruled in terms the exceptions filed by the defendants to the report of 1828, and adopting the statement XX, decreed in favour of the respective plaintiffs against Bartholomew Dandridge's administrator, for the sums above mentioned, as applied to their respective debts in statement XX. The Court also decreed in favour of the respective plaintiffs, against each of the legatees of Langborne. jr., separately for his proportion of the debt due to each plaintiff according to said statement, holding Burwell Bassett as the husband of Mrs. Bassett, liable for one fourth of the amount for which the estate of William Langborne was subjected. And the decree required Ambler's administrator, Abraham A. Green and E. A. A. Booth to execute bonds to indemnify the defendants against the claim of the personal representative of the party under whom they claimed. From this decree the legatees and devisees of William Langborne applied to this Court for an appeal, which was allowed. The Court is of opinion, that the amount and validity of the claim of Gill Armstead's legatees against *Page 289 the estate of William Armstead deceased, were ascertained and adjudged by the decree of the Chancery court of the 1st of June 1816. That although the said decree was reversed by the decree of this Court, pronounced on the 11th of December 1821, for formal errors, yet the mode of settling the accounts between said William Armstead and the estate of Gill Armstead was directly passed upon by the Court of appeals, and so much of the decree of the 1st June 1816, as ascertained the amount of the debt and adjudged it to be due by William Armstead's estate, was substantially affirmed, and the Court of chancery was instructed to enter a decree according to the principles so settled by the decree of the Court of appeals; in pursuance whereof the said Chancery court did, on the 18th July 1822, enter up a decree for the amount of the debt so ascertained to be due from William Armstead's estate to the legatees of Gill Armstead.

The Court is further of opinion, that said decrees did in effect adjudge and establish that as William Dandridge, who intermarried with the only daughter of William Armstead, being best acquainted with, and having laboriously attended to the taking of the accounts, being de facto administrator of William Armstead, had possessed himself of the assets and credits of the estate, the payment of the debt so ascertained and established against William Armstead's estate must ultimately fall on said Dandridge. The Court is therefore of opinion, that said decrees taken in connection with the decree of the Court of appeals of the 16th February 1836, reversing a decree of the Chancery court pronounced on the 3d of August 1829, dismissing the bill as to the representatives of Bartholomew Dandridge and William Langborne, conclusively establish against said William Dandridge and all his representatives the indebtedness of William Armstead's estate to the legatees of Gill Armstead; that they had a right to follow *Page 290 the assets in William Dandridge's hands; that a sufficiency of such assets had come to his hands, and that his representatives, who have received his assets, are accountable to said legatees for the assets so received.

And the Court, without deciding what would be the effect in all cases of a judgment against an administrator de bonisnon in establishing a debt against the estate so as to conclude a former executor or administrator, and thereby subject him to a devastavit, is of opinion, that under the circumstances disclosed in this case, the decree pronounced against Bartholomew Dandridge, administratorde bonis non of William Dandridge deceased, on the 18th of July 1822, in pursuance of the decree of the Court of appeals of the 11th December 1821, substantially affirming the decree of the 1st June 1816, should be treated and held as conclusive upon the said William Langborne, the prior executor of said William Dandridge deceased, upon the question of the indebtedness of William Armstead's estate, the right to follow his assets in the hands of William Dandridge, the receipt of sufficient assets by William Dandridge for the payment thereof, and the liability of his estate for the amount: It sufficiently appearing that said claim was controverted by said William Dandridge in his lifetime, who, according to the decree of the Court of appeals, was best acquainted with and laboriously attended to the taking of the accounts; and it furthermore appearing that after the death of said William Dandridge, the suit was regularly revived against Susanna Dorrington and David Dorrington her husband, the said Susanna having qualified as executrix of William Dandridge, and against John Bassett and William Langborne who were named as executors; that the said Dorrington and wife filed their answer making full defence, and that after the order of the County court of June 3d, 1805, treated by the Court of appeals by the decree of the 16th February 1836, as a revocation of her authority *Page 291 as executrix, the said William Langborne qualified as executor, and thereafter filed his answer controverting the justness of the claim; that exceptions were taken to the report of the commissioners, and the case matured for a decision on the merits during his lifetime. Under such a state of facts where the claim was controverted by the party sought to be charged in his lifetime, the suit revived against his executor who made a vigorous and full defence, and the case was ready for a decision on the merits when he died, and the cause was revived against the administrator de bonisnon, against whom the decree was pronounced, there can be no hazard of injustice to the executor in treating the decree against the administrator de bonis non, as conclusively establishing the debt against the estate, both as regards the administrator de bonis non and the previous executor: and Langborne is properly responsible for the assets he paid over to the legatees of William Dandridge to the prejudice of Gill. Armstead's legatees who were creditors of the estate as ascertained and adjudged by the decrees hereinbefore referred to.

The Court is further of opinion, that as it appears said William Langborne, executor of William Dandridge, paid over to his legatees the assets, with full notice of said claim, and after the suit to assert and establish the same against the estate of his testator, had been duly revived against him; and as the decree establishing said claim is, under the circumstances aforesaid, conclusive as it respects him, in establishing the validity of the debt against his testator's estate, such payment constituted a devastavit, and the liability arising from such devastavit resting on him at his death, in equity and by virtue of his official bond, created a debt which his representative was bound to discharge before making distribution of his estate; to be credited, however, by the amount of assets he retained in his hands, and which, were afterwards paid over ininvitum, by the *Page 292 decree of the Chancery court to Bartholomew Dandridge, the administrator de bonis non.

The Court is further of opinion, that as the legatees of said Gill Armstead claimed by force of the same decrees ascertaining the rights of all, and having a common interest, are seeking satisfaction out of a common fund, it was proper to unite in one suit to get the benefit of the former decrees in their favour; and the bill filed is not liable to the objection of being multifarious.

The Court is further of opinion, that there is nothing to distinguish the case of E. A. A. Booth from that of the other claimants. She was a party in whose favour the decree of 1st of June 1816, was pronounced, which as to her right to recover, was substantially affirmed by the decree of the Court of appeals of the 11th of December 1821. And though by the decree of the 18th of July 1822, there was an omission to enter a decree in her favour in consequence of the suggestion of her intermarriage with _______ Booth, yet, by the principles of that decree, purporting to be entered in conformity with the decree of the Court of appeals, her right to recover, which was a joint and common one with the other legatees, was in effect established; and the decree for her proportion was merely suspended to bring in a formal party in whose name the same could be entered; and the suit never having abated as to her, and she having survived her husband, she stands in the same position with the other claimants, with a decree establishing their rights jointly, and entitled equally with them to carry it into effect.

And the Court is further of opinion, that as the decree of the 1st June 1816, was suspended by the appeal, and no definitive decree establishing the debt was rendered until the decree of the Chancery court of the 18th July 1822, was entered in conformity with the instructions contained in the decree of the Court of appeals of the 11th December 1821; and as the claimants *Page 293 had no right to proceed against the representatives of William Langborne for his devastavit until their debt was established against the estate of said William Dandridge, their bill filed in February 1826, against the representative of said Langborne and the representatives and legatees of said William Dandridge, to get the benefit of said decrees, and charge the estate of said Langborne for his devastavit, was not barred by any statute limiting actions against fiduciaries; nor was there any such delay as to require a Court of equity to refuse relief upon the ground of laches.

The Court is further of opinion, that as it appears that Burwell Bassett, the representative of William Langborne the elder and of William Langborne, jr., had passed over the assets of said estates before he had notice of the claim now in controversy, as he alleges in his answer, to the proper distributees and legatees of said Langbornes, it was proper to throw the burthen on the distributees and legatees instead of the personal representative; they having the fund out of which the claim should be satisfied, and which in any event, must be held as being ultimately subject to the claim sought to be enforced, unless the same can be otherwise satisfied.

The Court is further of opinion, that as it respects the security of Bartholomew Dandridge, administrator de bonisnon, the cause of action arose against him from the rendition of the decree of the 18th July 1822; as it would have been competent for the claimants, upon the return ofnulla bona on said decree, to have proceeded against said administrator de bonis non and his securities in his official bond for his devastavit; and no proceeding having been commenced against such securities until they were made defendants by the amended bill filed on the 14th May 1838, the act of March 8th, 1826. relied on by the security Thomas H. *Page 294 Terrill in his answer, barred a recovery against the securities.

The Court is further of opinion, that the statement XX referred to in the decree now appealed from, correctly ascertained the sums for which the representatives of B. Dandridge's estate, and the representatives of Langborne's estate were respectively responsible; that all exceptions inconsistent with said special statement XX were properly overruled, and all exceptions consistent therewith properly sustained; and said statement so confirmed and constituting a part of said decree, definitively ascertains the amount for which Bartholomew Dandridge's estate is liable, and for which a decree was properly rendered in favour of the claimants respectively, against Philemon Jones, committee and administrator of his estate; and the same also definitively ascertains the amount for which the estate of William Langborne is ultimately responsible and may be compelled to pay eventually unless otherwise discharged.

The Court is further of opinion, that as Mrs. B. Bassett was, under the will of William Langborne, jr., a legatee for life, and it appears that before any recovery she had departed this life, and the part held by her for life was passed over to those entitled in remainder, the surviving husband having no assets of his wife, could not be held responsible on account of such life estate which had previously terminated; and the assets of William Langborne which the claimants were entitled to follow had passed into the hands of those entitled thereto in remainder; and the decree subjecting said B. Bassett, on account of said life estate, to a portion of the amount for which the estate of Langborne was responsible was erroneous.

And the Court is further of opinion, that although as a general rule a creditor of an estate is not bound to look beyond the personal representative, who is immediately *Page 295 responsible to him, yet under peculiar circumstances it is proper that a Court of equity should throw the burthen upon those ultimately liable, and that more especially when by the acts and conduct of the creditor the party who might in strictness have been primarily liable, may have been misled and induced to believe he was not looked to as responsible. In this case it is manifest that the representatives of Langborne have received no part of William Dandridge's estate, the assets of which should properly have been applied to the payment of this claim. The same have all been duly accounted for and passed over by Langborne and his representative to the legatees and administrator de bonisnon of William Dandridge. On the death of Langborne the claimants revived their suit against the administrator debonis non of William Dandridge, and dropped the representatives of Langborne from the cause; thus indicating an intention to look to and pursue the estate of William Dandridge. In the meantime the representative of Langborne turned over to the administrator de bonis non of William Dandridge, in obedience to a decree of Court, the assets of William Dandridge remaining in the hands of Langborne at his death; and thereafter without any notice, as he alleges in his answer, of the claim now sought to be enforced, he proceeded to distribute the estate of Langborne in the mode disclosed by the record. The claimants, by their bill of 1826, still looking to the estate of Dandridge for satisfaction, made the legatees and representative of that estate parties; and the Court having them before it, was bound in the exercise of a sound discretion under the circumstances aforesaid, to have required the claimants to proceed in the first place against the legatees of William Dandridge, holding Langborne's estate ultimately responsible for the sum so as aforesaid ascertained to be a proper charge against it, or for so much thereof *Page 296 as could not be made by proceeding against the legatees of William Dandridge; and it was error to dismiss the bill as against the representatives and legatees of William Dandridge, or any of them, and to decree against the representatives of Langborne until such effort had been made to procure satisfaction out of the assets of William Dandridge's estate in the hands of his representatives.

It is therefore ordered and decreed, that said decree in the particulars in which it is herein declared to be erroneous, be reversed with costs; and that the same, so far as it conforms to the principles above declared, and is not herein declared to be erroneous, be and the same is hereby affirmed. And the cause is remanded with instructions to require the plaintiffs in the Court below to revive, if necessary, against the legatees, and also the devisees, if so advised, of William Dandridge, and for all proper accounts, in order to a final decree according to the principles above declared, which is ordered to be certified. *Page 297