CONTEE v. DAWSON.—2 BLAND. 265

But, apart from these considerations, this clause can have no
direct bearing upon the present controversy. This is not a suit
against the executors of the late Ami Russell, or one in which the
validity and operation of the will is questioned in any way what-
ever; on the contrary, it is founded upon an admission of the will
in all respects, and claims the fulfilment oj' its provisions of the
trustee to whom, and to a suit of this nature, requiring disputed
matters to he referred to the nominated arbitrators, cannot have
been intended to apply; because the testatrix has distinctly con-
templated the responsibility of the trustees Dawson and Clerk,
according to a regular judicial proceeding, by her express declara-
tion, that they should only be answerable for gross negligence;
and it is the alleged negligence and mismanagement of the surviv-
ing trustee which is the cause of this suit, not any dispute about
the will,

I therefore conceive, that there is no foundation for this first objec-
tion, and that this suit may well be sustained notwithstanding this
clause requiring certain matters therein specified to be referred to
arbitration in case of any dispute.

The next preliminary objection is as to the want of parties. It
is urged, that Ann liussell Contee, the wife of the defendant Philip
A. L. Contee, had a direct interest in this matter; and that her
legal representatives, the bill stating her to be dead, ought to have
been made parties. If the interest of Ann E. Contee in this
* legacy became vested as it did by her attaining her full age, 282
or by her marriage before or after the death of her mother, it was
a chose in action belonging to Ann E. Contee; and as all personal
things are under the power of the husband, he may either release
or forfeit them: Cleaver v. Spurling, 2 P. Will. 528; it is, therefore,
upon that ground sufficient, that the husband alone as defendant
has appeared, and by his answer admitted, that this claim, to
which he, had so become entitled in right of his wife, had been
satisfied.

But it is objected, on behalf of the defendant Eleanor Dawson,
that the answer of the defendant Philip A. L. Contee has not
been sworn to in the manner required by the course of the Court;
and therefore cannot be considered as an answer for any purpose;
and is certainly not such an answer as will bind him and his wife
so as to justify Eleanor Dawson, as executrix of the trustee, in dis-
tributing the assets in payment of the proportions to which the
other legatees are entitled; since she has not assets sufficient to
satisfy all. This objection involves two inquiries; first, whether
the answer of the defendant Philip A. L. Contee is such an one as
must be received as effectual so far as it can operate for or against
his co-defendants; and secondly, whether Eleanor Dawson has in
Truth alleged and shewn a deficiency of assets.