The consent of the plaintiff and defendant, contained in iheir written agreement, that the rights of the plaintiff resulting from the purchase of his testator at the execution sale against George M. Savage might be settled in the Court of Chancery, cannot impart jurisdiction to that court if its jurisdiction be otherwise indefensible. But we will not stop to consider this question, as the case may be disposed of upon another ground, and the controversy most probably closed.
*630It will be observed upon a reference to the will of the defendant's testator, and it is also shown by the allegations of the bill, that the testator directed all his estate, real and personal, in the hands of his executors, upon the death of his wife to be equally divided between his “ children.” The allotments to the beneficiaries and the legatees are thus particularized, viz: one seventh part to the children of Behethalona Dillahunty (testator’s daughter) or the survivor of them in equal proportions; one seventh part to the children of his deceased daughter Frances J. Rucker, or the survivor of them (upon certain conditions not material to be noticed); one seventh part to Samuel Savage Dillahunty (upon certain conditions not material to the present ease); one seventh to his son Wm. F. T. Savage; one seventh to his son George M. Savage; one seventh to his son Samuel G. Savage; one seventh to Ms son John Tacitus Savage.
The bill alleges that Wm. F. T. Savage was dead at the time the will was made; that Samuel G. died in April 1840, and John T. in March 1841 — neither of whom left any issue or made a will: thus leaving four only of the legatees between whom the estate was to be divided. It .appears that the will was admitted to probate in 1837, and that the testator’s widow died in September 2841, long previous to the purchase of the interest of Geo. M. Savage by the plaintiff’s testator.
In respect to the legacy to Wm. F. T: S., looking to the will alone, it must be considered as having lapsed by his death previous to the will being executed, and consequently remained a part of the testator’s estate, to be distributed and divided either according to the directions of his will or as in case of intestacy. As to this portion of the testator’s estate, it may be considered as committed to the defendant to be disposed of according to law; and he is the only party necessary to defend a suit which may affect It.
The other two sons who have dieef since their father were entitled at the time of their respective deaths to. the provisions made for them by the will,, at least as to the personalty, although they could not have have been let into the enjoyment of their portions until the death of their mother — their legacies were thus far vested, though to be set apart to them in futuro. It does not appear that these legatees were not indebted at the *631time of their death; and this intendment cannot be made in favor of the complainant, conceding that it would be sufficient to relieve him from the necessity of bringing their representatives before the court. Besides, it is not. proper that the settlement of their estates should be made by administrators specially representing them; and can such a mode of adjustment be dispensed with, and their next of ltin be let in to the enjoyment of their estates, although there were, no- debts to be paid or collected?' However this question may be answered, we think that in the absence of an allegation that the deceased legatees were free from debt, the plaintiff cannot proceed upon the ease he has stated, without amending his bill, so as to bring in their personal and perhaps real representatives. Such a modification of the bill is required by the familiar rule which declares all parties in' interest to be made parties to a suit inequity. This rule,, it is true-, has its exceptions-, but none which-will justify the want of such essential parties-, at least under-the- circumstances of this case. Marr v. McCullough, 6 Port. Rep. 507.
it is- not in dispensable to- the action of the court that the-want of parties should be presented by a demurrer; it is allowable for the chancellor to notice it mere motu, even at the hearing, and order the bill to stand over on leave to amend orto dismiss it without prejudice-.
I® the present case the chancellor proposed to the complainant to amend his bill, and he refused to do- so: It was then entirely competent to have dismissed- it. The fact that the decree does not direct the dismissal to be without prejudice is wholly immaterial; for if the plaintiff can make out a case against other parties in connection with the defendant, it cannot be pleaded in bar of a new suit. If it could in any case, it will not avail here, for the decree places the dismissal upon the grounds of a want of equity and defect of parties..
We might here dose this opinion, but as it may be more agreeable to the parties to look farther into the case, and state some principle which- may determine the propriety of ulterior proceedings, we think it best to- do so:
Without attempting to recapitulate the several provisions of' the will upon the subject, it is enough to say in general terms, that it indicates throughout a disposition to dispense favors *632with great equality — a desire by the- testator to deal' justly with his children, and the descendants of such of them as were dead. So particular had the testator been in making advancements to his children, that he estimated the value of what he had given each of them, and noted it in a book, which by his will he declares he had sealed up and delivered to his wife, with directions to preserve it. This book he affirms shall be evidence of what it contains, and shall be refered to in equalizing the portions of the legatees. The executors were to observe the same particularity, so that when the final division was made, the shares of the beneficiaries could be proportioned with exactness, taking into the account what had been advanced both by the testator and his executor.
George M. Savage (whose interest in the real estate of the defendant’s testator the plaintiff claims under a purchase by his testator at an execution sale in 1845,) qualified as executor in December 1837, and continued such up to Nov. 1842,, when his authority was revoked. It is alleged by the answer that he wasted the estate to a large amount.
Conceding that the legatees named in the will of the defendant’s testator had such an interest in the lands devised as could be sold under an execution against them, and still it is clear that the purchaser would be substituted to the rights of the devisee and entitled to nothing more. He could not resist a sale under a decree of the Orphans’ Court for a cause, which would not avail the devisee; nor could he claim any other or greater interest in the proceeds. In all respects his rights would seem to be identical.
If G. M. S. while executor received 'the share to which he was entitled under his father’s will, he should receive nothing upon the final division; and if he received more than his due proportion of the personalty, his interest in the lands should be so applied, if necessary, as to reimburse the excess. This is necessary to subserve the intention of the testator, is demanded by the principles of natural justice, and is the dictate of an enlightened equity. — See Childress v. Childress, 3 Ala. Rep. 752; Duffee v. Buchanan, 8 ib. 27; Brown v. Lang, 14 ib. 721. The equity which would subject the executor’s interest to the reimbursement of the waste or misapplication of the assets attached previous to the judgment and execution *633under which the plaintiff deduces title. We do not however intend to intimate that this is important, but only to show that in a moral point of view, the right of the other legatees is strengthened by the removal of the executor and the conversion of the assets by him, before his interest was purchased by the plaintiff’s testator.
We might have rested our opinion exclusively upon the ground that G. M. S, was obliged to account to his co-legatees for the abuse of his trust, before he should be allowed to receive from his father’s estate one-seventh of the entire amount of it. But the answer which brings his malversation to our view is in avoidance of, and not responsive to the bill, and does not in express terms allege that the assets converted ex-ceded in value one-fourth the interest in the lands of the testator. No proof has been taken to sustain the answer, and the admission of the complainant that a part of it is true does not furnish evidence necessary to have enabled the court of chancery to render a definitive decree in favor of the complainant upon the defence set up.
If the facts supposed had been proved, the case stated in the bill would have been fully met, but in the condition of the record, we can only affirm the decree for the failure of the complainant to bring all the essential parties before the court.