524 HELMS v. FRANCISCUS,—2 BLAND.

yet unsold, and which he held as part of the assets of the testator;
that he had no knowledge of any assignment of any interest in
any property in Germany to his testator, but that be had received
and held the proceeds of such property which belonged to his
wards, the children of the late John Newbaus; and that he had
accounted with the Orphans'Court for and paid a larger amount
than had come to his possession of the late Carsten Newhaus'
estate.

On the 31st of August, 1825, the defendant John H. Eathean,
filed his answer, in which he admitted, that the legacy given to
him had been paid; and that the testator's sister ———Bauers, of
Bremen, never had but one child, Anna G. Bauers, as stated in
the supplemental bill. The other allegations, he left the plaintiffs
to substantiate by proof.

On the 5th of October, 1825, the defendants Muller and wife,
tiled their answer, in which they positively denied that she had
ever made such assignment of her interest in the estate of her
first husband, John Newhans' estate, as was set forth by the plain-
tiffs; that her second husband was dead; and that these defen-
dants * had been legally married; of the other allegations of

550 the plaintiff's, they knew nothing.

On the 10th of January, 1826, the infant defendants Carsten
Newhaus, John H. Newhaus, and Jacob Newhaus, answered by
their guardian ad litem, and admitted the will of the testator; that
the executors had obtained letters testamentary; and that John
Franciscus had been appointed their guardian; but as to all else,
knowing nothing, they left the plaintiffs to sustain their case by
proof.

By a writing filed on the 11th of April, 1826, it was agreed
between the solicitors of the plaintiff's, and the solicitor of the
defendant Franciscus, that a commission should issue to four per-
sons named, of Baltimore, to take testimony; a commission was
accordingly issued, testimony taken and returned; and no excep-
tions were taken to it. And on the 13th of July, 1826, it was, on
the petition of the plaintiffs, ordered that a commission issue to
the four persons named, to take testimony in Bremen, unless be-
fore the 27th instant, the defendants name, and strike commis-
sions, which they having failed to do, a commission issued accord-
ingly.

The plaintiffs, by their petition, stated, that Frederick A.
Wandelohr, who had been made a plaintiff only, as the next friend

of the plaintiff Anna, was a material and important witness for
them; but being, as he then stood, interested in the event of the
suit, and therefore incompetent; they prayed that he might be
discharged; and that Charles F. Mayer should be allowed to take
his place; the said Mayer having consented to do so, and to