532 HELMS v. FRANCISCUS.—2 BLAND.

Of the proofs in relation to the assets of the testator, I shall
say nothing; because I shall decree that his executors account;
and upon that, the whole case will be sent to the auditor, for
the purpose of stating the account from the proceedings and proofs
now in the case, and such other proof as may be laid before him.

The supplemental bill of revivor, by which the Court was first
informed of the marriage of the plaintiff Anna, after the institu-
tion of this suit, made her husband, Lewis Helms, a defendant;
and represented him as having aresidence beyond the jurisdiction
of this Court. Under such circumstances, no more could be done
than to warn him by publication, to appear and defend his rights;
* and if he failed to do so, to assume the truth of the plain-
559 tiffs' allegations, and decree accordingly. But after the
day limited by the order of publication to appear had elapsed, and
before any decree had been passed, Lewis Helms came in by peti-
tion, and prayed to be allowed to put in the answer which he then
tendered, in defence of his rights.

It was obvious that the matter in controversy, as regarded the
executors; and as between Helms and his wife, could not be prop-
erly and finally disposed of, until it was determined whether he
was to be taken as an active, party or not. His pretensions covered
the whole matter in dispute. He claimed to have the account
taken with him; and to have the legacy paid entirely to him. And
consequently, to have allowed the case to proceed to an account
between the plaintiffs and the executors alone, with a reservation
of all the husband's rights, as they might be introduced at a sub-
sequent stage of the case, would have been, in effect, to pass a
decree with an understanding, that a party who stood by, might,
if he chose, have the whole matter re-examined and re-adjudicated.
This, I refused to allow, and after some delay, the plaintiff's con-
sented that the defendant Lewis Helms, should come in upon his
proffered answer. Although I may come to the conclusion that it
may be unjust to direct any part of this residuary legacy to be
paid to him, yet he should be permitted to assist in taking -the
account; and have the privilege of excepting to it when reported
by the auditor, to prevent his rights from being in any manner
improperly involved, or finally compromised to his prejudice.

This is a case of a very singular complexity. The principal ob-
ject of the suit is to recover a residuary legacy given by the late
Carsten Newhaus, to the plaintiff Anna, and to ascertain how
much" of the testator's estate should be embraced by that bequest.
Another object is to have the whole of the legacy thus given, set-
tled upon the plaintiff Anna, to the exclusion of her husband, the
defendant Lewis Helms; except so much of it as has been pledged
or assigned to the plaintiff's Sumwalt and McFarren. But if the
Court should determine that the defendant Lewis Helms, is enti-
tled to any portion of it, then, to meet that event, Mordecai L.