The condition of the record in this cause is such that we do not consider it proper to pass upon the important questions which have been argued before us.
The case involves the validity of the gift of freedom by the testator, Douglas Wilkins, to a female slave with whom he lived in concubinage, and of donations to his illegitimate children, born to him by the concubine. It appears by the proceedings offered in evidence by the plaintiff, that of the two executors, Walker and Scott, named in the will, one of them, Walker, qualified. Two years before this suit was instituted, Walker had rendered an account of his executorship, and had given up the estate to the residuary legatees named in the will, to wit: the testator’s sister, who was made usufructuary during her natural life, and her minor children, represented by their tutor. This action is brought against the testamentary executors, solely in their capacity as such ; the usufructuary and the minor children, residuary legatees, are not made parties. Their interest in the questions presented is obvious, and the executors (one of whom never qualified, the other is functus officio,) were incapable of representing them. Indeed, the District Judge seemed to consider the executor as no longer charged with the estate, but that his functions had expired; and the decree is against “the heirs and universal legatees of Douglas Wilkins, deceased,” who are not parties to the cause.
It is, therefore, decreed, that the judgment of the District Court be reversed, and that the petition be dismissed as in case of nonsuit, the costs in both Courts to be borne by the plaintiff.