The opinion of the Court was delivered by
Moses, C. J.The bill was filed by Tillman L. Clark, administrator of Pickens L. Tucker, and Atticus C. Tucker.
It alleges the appointment, in 1856, of James Tompkins as guardian of the said Pickens L. and Atticus C., his entering into the usual bonds, with Landon Tucker, J. PI. Jennings and W. D. Jennings as his sureties, and the receipt by the said guardian of 87,709.31 for each of the said wards, as their several distributive shares in the estate of their deceased father; that they were, also, entitled to a further sum of $3,630, as distributees of a deceased brother, Thomas L. Tucker, which the said guardian received, or should have received,from his administrator; that the testator died in 1861, leaving a large real and personal estate, and the defendants, T. S. Tompkins and J. W. Tompkins, qualified as executors of his will.
It prays for an account, by the executors, of the actings and doings of their testator as guardian; and, expressing doubts as to the solvency of his estate, asks that the executors be required to account, the creditors called in, the estate marshalled, and the sale of the whole estate for the payment of debts.
The executors, in their answers, express the belief that the testator, in 1863, invested the funds of his wards in Confederate securities, found among his papers, and, unless 'the investment be sustained, the estate will prove insolvent. They ask that the creditors *123be enjoined from suing at law, and required to prove their claims in this Court.
The Chancellor made his decree, and it will only be necessary to notice so much of it as may be involved in the questions presented by the grounds of appeal.
The first and third of these submit error in deciding that the investments made by the guardian in Confederate securities for his wards are not to be taken pro tunio in discharge of his indebtedness.
This assumes a higher position for the guardian than was conceded to him by the Chancellor. Had he, in good faith, with funds in hand, made an investment for his wards, which was lost from circumstances beyond his control, he might have submitted a claim to the Court for an extension, in his behalf, of the principles which govern it, in passing on the conduct of those who occupy fiduciary relations. All reference to these is precluded by the fact that no investment was ever made.
Apart from the mere belief of the sons, the executors, and the widow, that the Confederate securities in the possession of the testator at the time of his death were held by him for Ms wards, there is not a tittle of proof that he in any way invested the money which he received for his wards, in 1856, into any other representative of value.
The mere circumstance that Confederate securities, amounting to a few thousand dollars, and Treasury notes, to some $15,000 or $16,000, were found among his assets, in no way leads to a conclusion that he had bought and held the first for the infants. Dying in the year 1864, was it at all extraordinary that a man of his large estate, great prudence, energy and thrift, should have left on hand that amount in the only currency existing in the country ?
We can pergeive no reason for which to differ from the Chancellor in the conclusion to which he arrived in this regard.
We do not, however, consider that, in the accounting to be had, the estate of the guardian is to be charged with the amount of the distributive shares in the estate of the brother, Thomas L. Tucker, to which each of the wards was entitled. He died in 1863, and the testator in 1864. Apart from the very short period intervening between their deaths, the Courts were- closed, and the condition of the country rendered impossible any resort to the tribunals of the State for remedies in civil causes. Nothing has been lost by any want of action on the part of the testator. The administrator of T. L. Tucker is still liable to account to the brothers, and they *124are now at liberty, without hindrance, to proceed against him. It has not been shown, even if necessary for the relief of the testator in this behalf, that anything has been lost to the wards by the mere forbearance of action on the part of the testator.
The claim of the widow to dower is allowed by the decree, and a writ for its admeasurement ordered. On its assignment, she is entitled to an account far rents and profits from the time when her right to it attached, or to interest, if a sum of money is assessed in lieu of it. — Keith vs. Napier, Bail. Eq., 64.
It has been submitted to this Court that its action should be stayed, because all the parties proper to the bill are not before it.
The bill was filed, primarily, by the plaintiffs against the executors of the testator for an account as guardian. To insure, probably, relief by the least circuitous mode, the sureties to the guardianship bonds were made parties defendant, as were, also, the devisees and legatees having an interest under the will. An order to amend the bill appears to have been passed by the Commissioner, for the purpose of preferring a claim to an account of some alleged interest in a mine and tannery, that the executors might give bond for the faithful administration of their trust or relinquish it, and to account for the rents and profits of the estate of the testator since his death. To the original bill, as has been said, all the de-visees and legatees were parties, and, without holding that it is not necessary, under any amended bill, to serve anew with process to answer, all the parties defendants to- the original bill, we do not think that the failure to serve R. Augustus Tompkins, (one of the devisees,) under the amended bill, should arrest all action in these proceedings.
If the objection could prevail, it was not taken in the Court below in the form in which it should have been presented.
Exception for want of proper parties must be by demurrer, if the omission appears on the face of the pleadings; if not, by plea. When the defect is thus established, the Court will suspend judgment until all the proper parties are before it. — -Neely vs. Anderson, 2 Strob. Eq., 262.
As observed, however, by Chancellor Dargan, in that case, the rule is subject to exception. It was adopted for convenience, “and conducive to the due and proper administration of justice, and would not be regarded as inflexible where its application would be absurd, impracticable, or lead to inconvenient delay.”
While preserving and protecting all proper rights, we must be *125careful that this is not attended with unnecessary protraction, and, therefore, should not be astute in an exploration of difficulties with which to impede the course of justice.
We feel less hesitation in not favoring the objection taken here, inasmuch as the said R. Augustr Tompkins and. the widow have both died since the decree, and 1 nther progress in the Court below will be suspended until their representatives and distributees are made parties by proper proceedings, to do which leave is now given.
It is ordered that the decree of the Chancellor, explained by the views herein declared, be affirmed.
Willard, A. J., concurred.