342 HOWARD'S CASE.—1 BLAND.

A writ of habere facias possessionem was accordingly issued and
a return made upon it by the sheriff, that Mr. Wills, as agent of
Campbell & Ritchie, had been put in possession.

HOWARD'S CASE.
PARTITION.

A direction by a testator in his will, that his estate shall be valued and
divided among his devisees by persons to be appointed by the Chancel-
lor, amounts to no more than saying, that a partition, may be obtained
by bill in Chancery, it cannot authorize a judicial proceeding ex parte
by any of the devisees, (a)

The recommendations of the parties and their solicitors may be heard as to
the persons most suitable to be appointed commissioners to make parti-
tion of the estate.

George Howard and Benjamin C. Howard, the sons and execu-
tors of John Eager Howard, deceased, by their petition, filed on
the 16th of November, 1827, stated, that their father bad. by his
last will, made on the 9th of October, 1827, devised his real estate
to be divided among his descendants, as therein set forth; that
they had made some progress in the payment of the debts of the
deceased: and that although they had not fully satisfied all his
creditors, yet as from the great difficulty in making a division of
a large estate, situated as was that of the deceased, much delay
must arise, they had deemed it advisable to apply, at once, for the
appointment of commissioners, who might commence, immediately
to make the necessary preparatory examinations, &c. Whereupon
they prayed, that commissioners might be appointed, &c.

So much of the will of the late John Eage'r Howard as is mate-
rial to this case, is in these words: "It is my will and desire, that
all my real estate which may remain after the payment of my debts,
should be valued by persons to be appointed by the Chancellor of
the State of Maryland; in which valuation shall be included all
the real estate which 1 may at any time heretofore have conveyed
to any of my children; rating the same at its present value, and
* deducting therefrom the value of the improvements which
367 have been made upon said property during its possession by
my said children, or the possession of any other person under them;
and that upon such valuation, the whole shall be divided by the
persons to be named as aforesaid, into eight equal shares or parts,
whereof each of my children, viz. George, Benjamin C., William.,
James, Sophia now Sophia Read, and Charles, is to have one part,
to them and their heirs for ever; and my grandchildren, John

(a) Cited in Phelps v. Stewart, 17 Md. 240.