Frederick Isler Becton, by his last will and testament, (made in 1843,) devised and bequeathed, after several other bequests, as follows:
"Item. I give to my beloved wife, Eliza A. G. Becton, during her life, all the rest of my estate of every description, including all my lands and negroes not given to my son William; all my stock of every kind; household and kitchen furniture; money, notes, bonds and other choses in action; in short, all my property of every kind, subject to the limitations and conditions hereinafter mentioned, to wit: that my said wife shall advance, upon the marriage or arrival at age of my two grand-children, daughters of my daughter Julia Becton, one eighth part of all my negro slaves, which I give to them and their heirs, and shall advance in like manner to all my other children, the issue of my marriage with her, as they shall arrive at lawful age, each, one eighth of said slaves, which I give to them, their heirs and assigns forever, and shall also advance to my children, the issue of my marriage with her, one seventh of all the other property, given to her for life, which I give to them, their heirs, c., they leaving to my said wife one eighth of my slaves after the other shares are all advanced, and one seventh of all the other property except the land, which, after her death, I give to my six children, the issue of my marriage with her, and to the survivor or survivors of them; and in case of her surviving the time of the arrival at twenty-one years, or marriage, of all my children, the eighth of the slaves remaining, and the seventh of the *Page 420 other property left, I give to my said wife absolutely, her heirs, c.," and appointed the defendant William B. Becton the executor, who qualified and undertook the discharge of the office. Frederick Becton, jr., Richard D. Becton, James J. Becton, Susan G. Becton, Nancy R. Becton and Jacob G. Becton, are the children of the testator by his wife, Eliza A. G. Becton, and are, except Jacob, the plaintiffs in this suit. Besides the above, the said testator left two children, Wm. B. Becton and Elizabeth Heath, and two grand-children, Sarah Loftin and Julia Becton, the issue of a deceased daughter, Julia, him surviving, who were by a former marriage. These latter, with the husband of Elizabeth Heath, Amos Heath, and Elijah Loftin, husband of Sarah Loftin, and Jacob E. Becton, of the latter marriage, are made defendants. John E. Becton became the guardian of Frederick Becton, jr., Richard D. Becton, James Becton, Susan G. Becton, Nancy R. Becton, and the defendant, Jacob G. Becton, and gave bond, with Wm. B. Becton and Simon S. Becton his sureties, and as such guardian and sureties, they are also made parties defendant.
Eliza A. G. Becton, the widow, intermarried with one John E. Becton, and died sometime in the year 1850. The said second husband is also made a party defendant. The property bequeathed above, willed to Mrs. E. A. G. Becton, went into her possession, and the amount given for her own use for life, was in her possession at the date of her death. The suit is brought against the executor and the guardian and his sureties, for an account and settlement of the several amounts that have come into their hands, or which ought to have come into their hands, for the use and benefit of the plaintiffs, and as a part of the estate of Frederick, I. Becton, sr., they claim a distributive share of the legacies given to Eliza A. G. Becton; that the contingency upon which she was to take this property absolutely, never having occurred, she had only a life estate in it, and that there was an intestacy as to it after the falling in of her life estate.
By way of anticipation, the plaintiffs set forth the proceedings of the Court of Equity of Jones county, under a bill filed *Page 421 against John E. Becton, the guardian of plaintiffs, and his sureties, by George S. Stephenson, solicitor, under the act of 1844, wherein there was a reference to a commissioner, and a decree professing to ascertain the amount for which they were liable to the plaintiffs, and protesting that they are not concluded by the decree in that case; for that, although mentioned as relators in the case, being infants, they could not be such, and that thus being unrepresented, their interests were not duly asserted and considered, and that the said decree is for far too small an amount; that, in truth, the act never intended that — the wards whose rights were involved, should be made parties, or that they should be estopped by the decree in such a case.
They further state, by way of anticipation, that a petition was filed in the Court of Equity of Jones county, by Jacob G. Becton, and in the name of the plaintiffs, alleging that they were tenants in common of thirty-two slaves under the will aforesaid, and praying that a partition of these slaves might be made between them, which was ordered and made accordingly; but they say there was error in the decree, and that the rights of the parties were not properly set forth and declared; for that, the said Jacob G. Becton was only entitled to a share of the unwilled property with the children of F. J. Becton of both marriages, whereas the decree gives him much more than that proportion, to wit, one seventh part. They insist that they ought not to be estopped by that decree, for that they were infants, and their interest not sufficiently attended to. The children and grand-children of the first marriage, also say they ought not to be bound by this decree for partition, as they were not made parties thereto.
The answer of the executor, Wm. B. Becton, and the guardian and his sureties, insist upon the decree made in behalf of the plaintiffs, not withstanding the protestations and matters in law alleged by the plaintiffs; and the said Jacob G. Becton insists upon the decree for the division of the slaves as final and conclusive on the plaintiffs, in respect to their rights to the slaves assigned to him, notwithstanding the matters *Page 422 alleged in bar thereto. The cause was set down for hearing on the bill, answers and exhibits, and sent to this Court by consent. We have no doubt that, upon a fair construction of the will of Frederick I. Becton, the elder, he died intestate as to the share of his negroes and other property which he limited, upon a certain contingency, to his widow absolutely. She died before the happening of the contingency, and there is no ulterior disposition of such share in that event. The consequence is, that one eighth part of his slaves and one seventh part of all the other property given to the widow for life, belong to his next of kin, who are his children, now living, and the two daughters of his deceased daughter, Julia, all of whom are parties, either plaintiffs or defendants, to this suit.
The defendant John E. Becton, who was formerly the guardian of the plaintiffs, and such of the other defendants as were his sureties, insist in their answer, as a bar to the account which the plaintiffs now seek, on a decree which was rendered against them by the court of equity for Jones county in a suit instituted under the authority of the act of 1844, ch. 41, by George S. Stephenson, the Solicitor for the circuit in one of the counties of which the guardian was appointed. We cannot concede to the decree the conclusive force contended for by the defendants. It is true, as a general rule, that infant plaintiffs are as much bound by a decree as persons of full age; and neither they, nor their, representatives, are allowed to open the proceedings unless upon new matter, or on the ground of gross laches, or of fraud and collusion. See McPherson on Infants, 386, (41 Law Lib. 248,) which cites Gregory v. Molesworth, 3 Atk. 626; Lord Brook v.Lord Hertford, 2 Peere. Will. 519; Sheffield v. Duchess of Buckinghamshire, 1 Atk. 631. In these cases the infants are parties to the suit, and must have next friends to take care of their interest. The act of 1844, *Page 423 does not require the infants to be made parties to the suit, which may be filed on their behalf by the Attorney General, or Solicitors in their respective circuits. In the present case, indeed, the Solicitor, in the bill which he filed for them, styles them relators, which, however, we think, was entirely unnecessary, if not improper. The relators, in a suit upon an official bond made payable to the State, are the real plaintiffs; and that infants cannot be without a prochein ami. See McLaughlin v. Neill, 3 Ire. Rep. 394; Sanders v. Bean, Busb. Rep. 318. The infants cannot be bound, then, as parties plaintiff, in a suit by the Attorney General, or a Solicitor, and the act does not expressly, or by any necessary implication, give it a conclusive effect. If it have such effect, it must be by the force of the general rule, and that does not apply to the case for the reason above given, that the infants are not properly parties to the proceedings. The act intended, by ordering such a suit against a defaulting guardian, to have the interests of the infants attended to, whenever there was reason to fear, from the misconduct of the guardian, that there was danger of loss to them. The object of the act will be fully accomplished by having the guardian removed, his accounts settled, and a suitable person appointed to receive and manage the estate of the wards, under the direction of the court. It could not have been expected that the officer, having many other important public duties to perform, could attend properly to the taking of the accounts between the guardian and his wards, and hence the act was silent as to the conclusiveness of the decree. The infants may still, by their next friend, or after they come of age, call upon the guardian for a full account, and the former decree will be allowed no other effect than a prima facie presumption that the account and report, upon which it was made, were correct. If it were allowed a greater effect, the proceeding by the Attorney General or Solicitor would, in many cases, be prejudicial to infants, and it would have been better to have left them to the remedies which they had before the act was passed.
The defendant Jacob G. Becton objects to another partition *Page 424 of the slaves, upon the ground that the plaintiffs are estopped from demanding it, by a decree of the court of equity for Jones county, upon a petition filed by them and him, for a partition of the same slaves. The reply to that is, that the defendants William B. Becton and Elijah Loften, and his wife Sarah, have an interest in one eighth part of the slaves which the testator gave to his wife for life, and left the remainder undisposed of, and that, in the settlement of the whole estate, there must be a new division so as to give to these defendants their respective shares. In making the said divisions, the former partition must stand so far as it may do so consistently therewith.
A decree may be drawn declaring the rights of the parties according to this opinion. There must be a reference for taking the necessary accounts, and a commissioner must be appointed to make another partition of the slaves upon the principle above stated, and the cause will be retained for further directions upon the coming in of the report.
PER CURIAM, Decree accordingly.