By the Court.
Warner, J.delivering the opinion.
[1.] The error assigned to the judgment of the Court below is, the sustaining the demurrer to the complainant’s bill, and dismissing it.
The testator, by the second clause of his will, directs that all *301his real estate and perishable property, be sold, so soon as his executors shall deem prudent, for the payment of his debts.
By the third clause in his will, the testator provides, that his negro property be either hired out or sold, so far as may be sufficient for the payment of his debts, and the residue appropriated for the benefit of his family, according to the discretion of his executor.
The fourth clause of the will provides for the support of the testator’s family, until all his just debts be paid, as his executors shall deem necessary, or in conformity to their best interest; and after the payment of his debts, the residue of his estate to be equally divided between his wife, Sarah L. Rogers, and his two children, Henry A. Rogers and Lucretia Jane Rogers — the, distribution to be made to his children when they successively arrived at the age of majority — the distribution to be made to the testator’s widow, whenever, in the opinion of his executors, the interest of his estate would justify it. The construction which we give to this will is, that, the testator intended that his real estate and perishable property should first be sold for the payment of his debts, and if that was not sufficient, the hire of the negroes was to be appropriated for that purpose, or that a sufficient number of the negroes might be sold for the payment of his debts. After the payment of his debts, his property was to be equally divided between his wife and children — the latter to receive their respective shares, when they attained the age of twenty-one years.
The testator evidently contemplated that his executors would sell the property and pay the debts, within the usualtime allowed by law for that purpose, or in any event, that the debts would be paid before either of his children should attain the age of twenty-one years, for then he directs they shall receive their respective shares of his estate. He did not intend the vesting of the legacies to his children, in possession, should depend upon the action of his executors in paying the debts, for then their right to the possession of their respective shares, would depend on the will of the executors, rather than the will of the testator. From the allegations in the complainant’s bill, the legal presumption is, that the executor has paid the debts, or has in his hands sufficient for that purpose, and of which he has made no proper account.
The complainant charges, that the executor has sold all the-real *302estate and personal property of the testator, except twenty-six negroes, amounting in value to the sum of twenty-five thousand dollars, of which he has made no proper return to any Court; and has also received from the hire of the negroes and the rents of the real estate, the sum of five thousand dollars. By the Act of 1792, executors are allowed twelve months, from the probate of the will, to ascertain the debts due to and from their testator. Prince, 229. By the 4th section of the Act of 1810, executors are required to render a full and correct account of the condition of the estate in their hands, to the Court of Ordinary, once in each and every year, on oath. Prince, 240. According to the case made by the complainant’s bill, more than two years and a half have elapsed since the probate of the will and qualification of the executor, and no returns have been made by the executor of the appropriation of the proceeds of the sale of the testator’s property, and he is charged to have the same in his hands. One of the legatees, Henry A. Rogers, it is alleged, arrived at the age of twenty-one years, and assigned his interest to the complainant in the testator’s estate, and afterwards died intestate. William A. Pullen took out administration on his estate, and as the complainant charges, is endeavoring to reduce into his possession the legacy of Henry A. Rogers, now in the hands of the executor, and which was assigned to the complainant by said Henry A. Rogers, in his life-time.
[2.] The prayer of the bill is, that Pullen, as the administrator of Henry A. Rogers, may he enjoined from recovering said legacy from the executor, and he is made a party to the bill for that purpose only. As twelve months had not expired, from the time of the qualification of Pullen, as administrator, to the time of filing the complainant’s bill, it is objected that he cannot be made apaxty until after the expiration of twelve months from the date of his qualification as such administrator. By the 12th section of the Judiciary Act of 1799, it is declared — “ No suit or action shall be issued against any executor or administrator, for any matter or cause against the testator or intestate of such executor or administrator, in any of the said Courts, until the expiration of twelve months after probate of the will of such testator, or letters of administration granted on the estate of such intestate.” Prince, 422. The complainant’s bill is not filed against Pullen for any matter or cause of action which existed against his intestate in his *303life-time. It does not seek to recover anything from him, as the representative of his intestate, hut simply to enjoin him from interfering with that which it is apparent from the complainant’s bill and exhibits thereto attached, he has no title in right of his intestate. He is not sued for any debt', demand, matter or cause of action which existed against his intestate in his life-time, and in our judgment, was properly made a party to the bill. For the reasons already stated, we are of the opinion that the complainant has stated upon the record a ]>rima facie case, which entitles him to a discovery and relief from the executor, as the assignee of Henry A. Rogers, one of the legatees under the will of Collin Rogers, the testator, for his share of the legacy, and that the demurrer ought not to have been sustained.
Let the judgment of the Court below be reversed.