SANDERS et al. vs. GODLEY, 23 Ala. 473

PHELAN, J. We do not understand the plaintiffs in error seriously to question the rule of law, -that property in the hands of a legatee will be held liable to the payment of the testator’s debts, if the assets otherwise prove insufficient. Even if it be denied, we cannot hesitate to pronounce that such is the rule of law; and the answers and proof in this cause clearly make out a case to which that rule is applicable.

The debt against the testator is well established; the insolvency of his executor, and of the executor’s sureties, is also well established; and the third fact necessary to complete the right to relief, is just as clear, namely: that Mrs. Sanders and Kimble each received more of the property of Fox from the executor, High, than would be sufficient to pay this debt, and the children of Mrs. Sanders a valuable vested remainder in the slaves bequeathed to their mother.

But it is insisted, that Horner, Blocker & Co., the payees in the due bill which Fox gave, and upon which the judgment for the use of Godley was recovered, in the County Court of Madison, in 1841, should have been made parties complainants, because, it is said, they held the legal title to the due bill, and the party holding the legal title must, as a general rule, be made a party in chancery. That is a general rule, but not a universal one. — Story’s Eq. PI. § 153.

But, without discussing that question, it is sufficient to observe here, that the objection to a bill for want of proper parties will not be entertained, if made for the first time in this court, unless the case shows the omission of a party whose connection is indispensable to the just and final decision of the matters in controversy.—Woodward v. Wood, 19 Ala. 215; Dias v. Bouchand, 10 Paige 445. Such is not the case here. The case as presented, so far from showing any interest in Horner, Blocker & Co., goes to show the contrary.

Godley seeks satisfaction of a judgment rendered for his use against the executor of Fox; the legatees of Fox, who are responsible for its payment under the circumstances, do not deny or in any manner question, in the court below,' the sole ownership of Godley; they thereby admit that he is sole owner, and will not be allowed to raise that question here, after letting it pass in silence in the court below. We agree that the children of Mrs.

Sanders were necessary parties defendants to this bill, which sought to subjéct to sale slaves in the possession of their mother in which they had a vested interest, namely : a remainder after her life estate. But the service of the subpoena on their ipother for them was a good service, and they were properly before the court, so as to authorize-the appointment of a guardian ad litem.

The third rule of chancery practice (Clay’s Digest 612) says : “ Subpoenas issuing against infant defendants may be served upon their parents or either of them, if in life, and, in case of death, upon the general guardian of such infants ; and if there is none, then, if the infant is over fourteen years, upon the infant personally, and if under fourteen, then upon such person as may have the maintenance and charge of such infant,” &c.

This rule means, that, so long as there is a father or mother or general guardian, the service may be upon them, in behalf of infants or minors, whether over or under fourteen years. The subpoenas which issued and were served on all the infants themselves, except B. Sanders, were, to say the least, unnecessary ; the previous service on their mother was good. The record shows in this case, that the subpoena required the sheriff to summon the infants, naming them, by their mother and surviving parent; and the ease of Hodges v. Wise & Wife, 16 Ala. 609, is a decision in favor of the sufficiency of such a service.

The case of Johnson v. Hainesworth, 6 Ala. 443, does not show that a subpoena was served on the mother for the infants; and, as both were parties defendants to the bill, it was held not to be sufficient that a subpoena had been served on the mother only. The two cases do not conflict, but the language of the court in the latter case, as to the meaning of the third rule of chancery practice, does not agree, as will be observed, with what we conceive to be the true construction. It was not necessary to make the administrator of High a party, even if there was one.

The liability of High could not be increased or diminished by the decree in this case, go as it might. That was fixed by the judgment against him. Besides, he is shown to have been utterly insolvent at the date of the judgment, and to have died so shortly afterwards. If he had made a payment, these defendants could show that, without his administrator being made a party. But the money decree against Mrs. Sanders and Kimble jointly, for the amount of the judgment, cannot be supported under the facts of this case.

If there had been no other legatees, who received property or effects of the testator, parties to the bill, inasmuch as Mrs. Sanders,and Kimble were each shown to have received more property than would satisfy the debt, the decree might have been supported, and they left to adjust between themselves the question of -contribution.

And in such a case, as no reference to the master would have been actually necessary to ascertain the amount for which a decree should be rendered, since the record of the judgment furnished data and proof upon which the chancellor could safely act without the aid of the master, the questions raised as to the report of the master and the confirmation of that report might have been regarded as unimportant. ' But there is this important feature in the case, which has been entirely overlooked in the decree, and which makes a reference to the master with suitable instructions indispensably necessary to the administration of equal justice in the case : the vested remainder of the children of Mrs.

Sanders in the slaves bequeathed to their mother for life, which is a highly valuable interest, must be charged with its proper proportion of this debt..

If they were not parties to this bill, and their mother and Kimble should be decreed to pay it, there would be a way open to recover contribution of them; but being parties, the decree of the court must determine and settle, as well what part they are liable to contribute to the payment of the complainant’s demand, as that which falls to the share of the other defendants, each being bound in equity to pay in proportion to the value of the testator’s property which they respectively received. This is wholly omitted in the decree rendered.

It follows from what has been said, that a reference to the master was indispensable. The master should be instructed to ascertain and report, 1st, the amount of the debt due from the testator, Fox, to the complainant, with interest to the time of taking the account; 2nd, the amount in value of the property of Fox which Kimble received; if slaves, their number and value ; 3rd, the amount in value of the property of Fox which Mrs.

Sanders, or her husband as her trustee, received; of the slaves, their number and value, and the value of her life interest in them ; 4th, the value of the vested remainder to the children of Mrs. Sanders in the slaves which their mother received, and in which she takes by the will of Fox a life estate : the value of all the property and of the remainder to the children of Mrs.

Sanders to be estimated as of the time when the property was received by the respective legatees; 5th, to ascertain and state .from the foregoing data what portion of complainant’s demand each of the respective parties defendants should pay.

Upon the coming in of this report, the chancellor will render a decree in favor of complainant against the respective parties, for their several portions as aforesaid, and allow some short delay for the payment of the same; and shall further decree, that, if the whole amount be not paid by such time, execution may issue against any or either of said parties defendants, to the extent of the property respectively received by them, until the whole is paid.

It follows from what has been said, that the decree below must be reversed, and the cause remanded, that the chancellor may proceed in conformity with the foregoing views. Ligón, J., having been of counsel, did not sit in this case.