HELMS v. FRANCISCUS.—2 BLAND. 523

atee. But that the defendant Franciscus had caused himself to be
appointed guardian, not only of the defendant Anna G. Bauers,
but of the other four supposed infant persons; aud had as guar-
dian, retained the sum given to them, and refused to account for
or to pay it over to this plaintiff Anna; and that a legacy had
been also given to the defendant John H. Rathean.

This bill further stated, that the plaintiff Anna having been in-
debted before her marriage in the sum of $636.32, to the plaintiffs
Snmwalt and McFarren; after her marriage with the defendant
Lewis Helms, and before their separation assigned their interest
in her residuary legacy for so much as was necessary to secure
the satisfaction of that debt with interest from the 12th August,
1819, and to the extent of which debt they now here claim as
plaintiffs in this suit. Upon all which the bill prayed that the
defendants Franciscus and Sadtler might be ordered to account
with the plaintiffs; and that they might be ordered to pay to
Sumwalt and McFarren the amount of their claim, and to the
plaintiff Anna the remainder of the residuary legacy due to her,
to be settled on her as the Court should direct; and for general re-
lief, &c.

On the 25th of April, 1825, an order of publication was passed
warning the absent defendants Lewis Helms. Anna G. Bauers.
and Jacob Huber, to appear on or before the 15th day of August,
1825, and shew cause why a decree should not pass. The editor
of the * newspaper in which the publication was made cer-
tified in the usual manner, that the order had been published 549
as directed; but none of the absent defendants appeared within
the time appointed.

On the 14th of June, 1825, Philip B. Sad tier filed his separate
answer, in which he admitted, that he was one of the executors of
the late Carsten Newhaus: but alleged that the defendant Fran-
ciscus had, in all things, been the principally acting executor;
that he had retained in his hands the legacies given to the five
children of the testator's sister ———Bauers, of Bremen; and
that by virtue of the acts of Franciscus, and of their settle-
ments with the Orphans' Court as executor and guardian, copies
of which he exhibited, this defendant was discharged.

On the 27th of July, 1825, the defendant Franciscus put in his
answer, in which he referred to and relied upon his answer to the
original bill and said, that he could not admit, that Helms and
wife had agreed to live separate; that he did not know to what
amount she was indebted to Sum wait and McFarren; that as
guardian of the infants Carsten, John H. and Jacob Newhaus, he
had retained the legacies given to them; and had also retained the
legacies given to the five children of the testator's sister
Bauers, of Bremen, for whom he was guardian, and who, he un-
derstood did exist; that there was a piece of leasehold property