DEAKINS' CASE.—2 BLAND. 387

brought in the first part of it; and the bill of John Hoye intro-
duced the second part. These two distinct proceedings, moving
separately, and apparently having entirely different objects, were
shewn to have an intimate connection with each other by the peti-
tion of Hoye; and were linked together by the order of the 2d of
July, made on that petition. Looking then into all the proceed-
ings and exhibits, the case as it now stands before the Court is
this:

William Deakins being seized of certain real estate, made his
will disposing of the whole, and died. He gave a part of his real
estate to his wife Jane; and the rest he devised to his brother
Francis Deakins, who he appointed his executors, in trust, in the
first place, to be sold for the payment of his debts. In May, 1804,
Edward Thomas obtained a judgment against Francis, the execu-
tor of William, for a large sum of money, with interest and costs.
Francis died without having sold the real estate of bis testator for
the purpose of executing the trusts reposed in him; and adminis-
tration de bonis non was granted to John Hoye. After which, by
a written agreement between .John Hoye and Edward Thomas, it
was stipulated, that in consideration of certain lands in Virginia
being conveyed to Edward, he should assign over all his rights to
the judgment he had obtained against Francis, to John Hoye.
Alter which Edward Thomas tiled his petition here; upon, and
subsequent to which the before mentioned proceedings were had.

Had Francis, the testamentary trustee, attempted to sell the real
estate devised to Jane, he might have been restrained by an injunc-
tion; or if he had made a sale, it would have been deemed void.
And if he had attempted to sell that real estate which was actually
devised to him to be sold for the payment of the testator's debts,
under the pretence of paying debts, when in fact and truth there
were no debts really due, those interested in the estate might have
had their interests protected by an injunction. I conceive there
could have been 110 doubt of the propriety of the exercise of such
an authority in restraint of the testamentary trustee Francis Dea-
kius, were he living.

Edward Thomas expressly founds his petition upon the Act of
* Assembly which provides, that this Court shall have full
power and authority, upon the application or petition of any 404
person interested in the sale of the property devised as this was,
to appoint a trustee for the purpose of selling and conveying such
property, and applying the money arising from the sale to the pur-
poses intended. 1785, ch. 72, s. 4. But in appointing a trus-
tee, under this law, as a mere successor to the testamentary trus-
tee, it could not be presumed, that the Court intended to confer
upon him an authority more extensive than that to be found in the
will, or instrument specifying the objects of the trust. Hence the
stay of proceedings, or injunction upon the trustee, so far as re-