270 COATEE v. DAWSON.—2 BLAND.

* costs to be levied on the assets in hand, or as they should

287 accrue in a due course of administration.

Taking all the proof together then, including this solemn formu-
lary of a judgment, and the authenticity of this alleged claim of
James Dawson, rests upon mere hearsay, and a great portion of
that hearsay derived from the defendant Eleanor Dawson herself.
There is no direct competent proof, that James Dawson ever, by
himself, or his attorney, or agent, asserted, that he had such a claim
against the estate of his father. And it is even left somewhat
doubtful, i'rom what is said of his being in a remote region of the
earth, whether he was actually alive when this judgment was got
up on his behalf. The question whether any debt was due, and to
what extent, has never been tried with that searching attention
which these plaintiffs had a right to expect from this executrix.
Alsager v. Rowley, 6 Ves. 751. It is true, that an executor is al-
lowed to pay any creditor of his testator; and is not bound to con-
test the claim; but, under color of satisfying a creditor, he cannot
be permitted to retain without control, or to give away the assets
of his testator. Watlington v. Howley, 1 Desau. 167.

In short, looking to all the circumstances, in relation to this
debt, said to be due to James Dawson, I cannot consider it to be
such a claim as ought to be allowed to diminish or exhaust the
assets of the testator William Dawson, to the prejudice of these
legatees, who also stand here upon the strong ground of being his
creditors. Laying aside this claim of James Dawson, there is cer-
tainly no allegation or proof of any deficiency of assets; and con-
sequently the argument, that all these legatees, children of Marga-
ret Russell Clerklee, must be parties to this suit to receive now
their respective proportions of the assets; because of their not
being enough to pay all, must entirely fail, and there is an end to
all objections on that ground.

Advancing now to the consideration of the merits of this contro-
versy, after having cleared away the preliminary objections, the
first inquiry which presents itself is as to the nature of the interest
which has been given in this legacy to the children of the late
Margaret, Russell Clerklee.

It is very clear, that no other interest vested in the mother, than

the right to receive the annual fruits or dividends during her life;

and after her death, which has happened, the whole principal and

interest or dividends passed to her children, She left six daugh-

ters *and no son. Three of her daughters have been mar-

288 ried; one has since attained the age of twenty-one years;
and two are yet unmarried infants. By the terms of the will of Ann
Russell, a right to a share of this legacy could only vest in any of
these daughters on the occurrence of one of four circumstances in
addition to that of her having survived her mother; first, she must
then have attained the age of twenty-one years; or secondly, she