130 HALL v. HALL.

HALL v. HALL.

Wherever a testator devises a part of his estate to one who has a claim upon it inde-
pendently of him; it is a settled principle of equity, that the devisee shall not be
allowed to disappoint the express or obvious intention of the testator by taking
both; but shall be put to his election to take the one or the other.

The mode of reviving a suit in equity, according to the act of 1S20, ch. 161, which
had abated by death. But that act being cumulative, the party may revive
either in that mode or by bill. The new mode of reviving applies to no case,
except that of a devisee, where a proper bill of revivor will not lie; nor does it
apply to an abatement by marriage; or to an abatement after a decree.

This bill was filed on the 11th of September, 1816, by William
White Hall, against William Hall and Edward Hall, as the exe-
cutors of the late Thomas Hall, and against George W. Hall and
others, as his children and legatees. The object of the bill
was, to recover a legacy given by the deceased to the plaintiff; and
the defence made by the answers of the defendants was, that the
plaintiff, who claimed as legatee under the will, had taken and held
certain lands as heir in tail in opposition to the will; and therefore
ought not to be allowed to sustain this suit for the legacy.

After this bill was filed, the plaintiff died, and Elizabeth Hall,
his administratrix, by her petition prayed to be admitted as plain-
tiff in his place.

10th December, 1823.—JOHNSON, Chancellor.—Ordered, on
examining this application and the accompanying exhibits, that
the petitioner be, and she is hereby admitted a complainant, and
authorized to conduct the suit; in doing which, the rules laid down
by my predecessor, in the case of Labes v. Monker at July term,
1821, must be pursued.(a)

(a) LABES v. MONKER.—This bill was filed on the 8th of June, 1820, by James
Labes, against William Monker and John C. S. Monker, to set aside a conveyance
of a certain chattel real, made by the defendant William to the defendant John, on
the ground, that it had been fraudulenfly made to defeat a judgment at law obtained
by the plaintiff against the defendant William; upon which judgment the plaintiff
had issued an execution, and had it returned without its having been delivered to the
sheriff; after which he had issued another fieri facias, upon which the sheriff had
returned nulla bona. The plaintiff, by his bill, prayed, that the deed might be
declared void; and, that he might be relieved according to the equity and nature of
Ms case.

The defendants were summoned, and both of them appeared, but failed to answer
the bill. After which the solicitor of the plaintiff came into court, and suggested
his client's death, and moved, that his legal representatives might be made parties.