166 WINDER v. DIFFENDERFFER.—2 BLAND.

tioned in the order of March 25th. 1815, the auditor may proceed
to examine the reports and vouchers, without waiting for the
transcript, and report thereon, giving notice to the former and
present trustee.

In obedience to this order the auditor, on the 23d of December,
1818, stated and reported several accounts as required for perform-
ing- which service, his legal fees amounted to $84. After which,
the auditor, by his petition, stated, that the former trustee Vin-
cent, and John Diffenderffer, who had been recognized by the
Court as trustee in the room of Vincent, although no order for his
appointment appeared among the payers, had both of them neg-
lected and refused to pay his fees, although Diffenderffer had
always had in his hands funds of the estate to a large amount.
Whereupon the auditor prayed, that Diffenderffer might be ordered
to pay, &c.

KILTY, C., 18th October, 1819.—Ordered that John Diffenderffer
pay to the auditor the sum of $84, on or before the 10th day of
November next, or shew cause to the contrary; provided, that a
copy of the petition and of this order be served on him before the
28th instant.

These are all the proceedings which appear to have been had in
the case of Rogers v. Merryman, when Winder and wife instituted
the suit against John Diffenderffer and others.

These plaintiffs, Winder and wife, by their bill, stated that
Charles Eogers, after having made his will, as before set forth,
died, * leaving a large estate, and four children his de-
177 visees, Sarah Ann, Mary and Catherine; that the trustees
appointed by the will of the testator, all refused to take upon them-
selves the trust, and were then dead; that no trustee to carry into
effect the object of the will had ever been appointed by any com-
petent authority; that Sarah married, and afterwards died, leav-
ing the plaintiff Araminta, her only child and heir; that Ann and
Mary had married, and afterwards died without issue; that Cath-
erine married the defendant John, and was since dead, leaving
these infant defendants her children, and heirs-at-law; that after
the death of Ann and Mary, the dei'endant John Diffenderffer
took the property so devised, into his possession, as the estate of
the three ini'ant defendants, his children, and had ever since
received the rents and profits thereof. Whereupon these plaintiffs
by their bill prayed, that a division of the estate, so devised might
be made among the legal representatives of the devisees of the
testator, Charles Eogers, according to their respective interests;
and also, that the defendant John Diffeuderffer might account for