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John West, Appellant, v. Joseph Smith and Ellen, his Wife U.S. 402 (1850)

handle is hein.slavery/ussccases0266 and id is 1 raw text is: SUPREME COURT. West v. Smith et aL Court, for further proceddings to be had therein in conformity to the opinion of this .court. JOHN WEST, AFPELLAINT, V. JOSEPH SIITH AND ELLEN, HIS WIFE. Where a bill was filed in the Circuit Court of the United States for the County of Alexandria, by a legatee, against the executor and residuary de.visee, praying for the sale of the real estate in order to pay legacies, the personal estate being ex- hausted, it was not necessary to make a special devisee of land in Virginia, who .resided in Virginia, a party defendant. The Orphans' Court had power to allow a commission to the executor for paying over a specific legacy, and a right to extend this commission to ten per cent. Under the laws of Virginia, the executor had a right to refrain from pleading the statute of limitations when sued, and to pay a judgment thus obtained against him. The judgment, at all events, must stand good until reversed. Where the executor paid legacies to persons who had occupied property which, it was alleged, belonged to the deceased, and the occupiers claimed to hold it in consequence of an uninterrupted possession of twenty years, the justice of their claim could not be tried in a collateral manner, by objecting to this item of the executor's account, on the ground that he should have set up the claim for rent in set-off to the legacy. THIS was an appeal from the Circuit Court of the United States for the District of Columbia- and County of Alexan- driaistting as a court of equity. It was a bill filed in the Circuit Court by Ellen Smith, then Ellen Mandeville, one of the legatees of Joseph Mandeville, deceased, whose will was before this court for construction at January term, 1844. The case is reported in 2 Howard, 560. It willbe ,seen by reference to that case, that John West be- came a party to the proceedings, upon the ground of being the residuary legatee, and, as the court then held, residuary devisee also. Ellen Mandeville, who intermarried with Joseph Smith pending the suit, was a legatee under that will for $ 3,000. One of the clauses of the will was this. If my personal prop- erty should not cover the entire amount of legacies I have or may give, my executors will dispose of so much of my real estate as will fully pay them. Mandeville, the testator, died in July, 1837. In May, 1839, Ellen Mandeville filed her bill in the Circuit Court, (to which suit her husband, Smith, afterwards became a party,) charging the making and publication of the will, the be- quest to herself and others of certain legacies, which in default of personal assets were chargeable upon the real estate, the death of the testator, and the de4ciency of personal assets;

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