162 WINDER v. DIFFENDERFFER.—2 BLAND.

cellor in the penalty of $30,000, conditioned for the faithful per-
formance of the trust reposed in Mm, &c.(g)

After the passing of this decree, Hopkins refused to take upon
himself the trust; in consequence of which the plaintiffs, with the
other devisees, by a petition signed by them, recommended Samuel
Vincent to be appointed.

KILTY, C., 4th April, 1806.—Nicholas Hopkins, heretofore ap-
pointed trustes for the purpose of carrying into effect the will of
Charles Rogers, having, in writing, refused to accept the said
trust; it is, therefore, decreed, on the recommendation of Sarah
Rogers, Alexander and Ann Martin, Mary Lee, and James P.
Boyd for Catherine Rogers, that Samuel Vincent be and he is
hereby appointed trustee for the purposes aforesaid, with all and
singular the powers vested in the former trustee by the original
decree; provided, that before he shall act as trustee aforesaid,
he shall file in this Court, a bond with such penalty and secu-
rity as was prescribed for the former trustee by the original
decree.

This trustee gave bond accordingly; after which, Sarah Rogers,
Alexander Martin, and Aim his wife, George Lee, and Mary, his
wife, and Catharine Rogers, as devisees of the testator Charles
Rogers, by their petition stated, that although the affairs of the
estate were then unsettled; yet a division might be very ad van -
tageously made among them, subject to the payment of the debts
of the deceased. Whereupon they prayed, that a partition might
be made, &c.

KILTY, C., 22nd November, 1800.—The Chancellor has consid-
ered this petition, and does not perceive how it can be complied
with, consistently with the decree already passed, on which no re-
port has been made by this trustee. The Chancellor refers the
petitioners to the objections stated by him to the bill, soon after
* the said decree, in order to obtain a partition,- but will hear
173 them at any time in support of the present petition.

(g) The ex parte proceeding by petition under the Act of 1785, ch. 72, s. 4,
applies only to cases where a testator has left " real or personal estate to be
sold for the payment of debts, or other purposes," and there is no one ap-
pointed to make the sale; or he who has been appointed to do so, neglects or
refuses to execute such trust. This, it is proper to recollect, is not a case
where the testator had left his estate to be sold for any purpose. And it has
been provided, that on the death of a trustee, having no beneficial interest
in the lands, the heir at common law shall succeed to the trust estate so
held; 1831, ch. 311, s. 11.