WINDER v. DIFFENDERFFER.—2 BLAND. 185

BLAND, C. 7th October, 1829.—This case standing ready for
hearing, on the exceptions to the auditor's report, and for final
hearing on the decree to account, the solicitors of the parties were
fully heard, and the proceedings read and considered.

I take it to have been finally settled by the judgment of the
Court, in the case of Rogers v. Merryman, to which the widow and
the four daughters of the late Charles Rogers, were all parties;
first, that the debts of the testator had been all properly and cor-
rectly paid by the trustee, Vincent, and that a share of the sur-
plus left, after their payment, having been ordered to be paid to
Catherine Diffenderffer, who had been a party to that suit, before
her marriage, is conclusive upon her, and those claiming under
her; because, so long as those orders of the 12th of September,
and loth of December, 1820, remain in full force, and they are
not now revisable, she, or any one claiming under her, cannot be
permitted, in any way, to question the correctness of the manner
in which the debts of Charles Rogers, deceased, were paid, which
had been so distinctly noticed, considered, and confirmed by those
judgments of the Court. And in the next place, that it has been
finally determined by the judgment of this Court, as indicated by
the orders of the 25th of March, 1815; the 8th of July, 1816, and
the 18th of October, 1819, that this defendant, John Diffenderffer.
* was to be considered thenceforward as a trustee charged
with the execution of the will of Charles Rogers, deceased; 198
and that he had succeeded to that trust, under the authority of
this Court, immediately after the resignation of the late Samuel
Vincent, on the 23d of November, 1814.

These positions, which have been established in that case, ap-
pear to me to furnish a very satisfactory answer to the claim of
the representatives of Catherine Diffenderffer, deceased, to be sub-
stituted for and allowed to take the place of the creditors of Charles
Rogers, deceased, on the ground of their having been improperly
paid with their funds; and upon that ground to have certain sums
withheld for their use from the distribution now about to be made;
and also to the objection, that John Diffeuderffer is here claiming
only as the natural guardian of his own children and in opposition
to the plaintiffs; since those proceedings shew, that he stands here
as a trustee, so constituted by the authority of this Court, for the
benefit of all the devisees under the will of Charles Rogers, de-
ceased.

But, passing over all the proceedings and final adjudications in
the case of Rogers v. Merryman, let us return to the decree, in this
case of the 7th April, 1828, by which the defendant, John Diffenderf-
fer, has been called upon to account for the rents and profits for
the whole time the property has been, or may remain in his pos-
session. The statements reported by the auditor, and the excep-
tions of the parties present two distinct subjects for consideration;