38 HOYE v. PENN.

in Montgomery county; and also as one of the legal representatives
of his late father, Charles Penn, sen'r; among whom it appeared,
that there was a large surplus to be distributed. Whereupon he
prayed, that the surplus might be distributed; and, that the share
due to him might be deducted from the purchase money he had
stipulated to pay, &c.

23d January, 1823.—JOHNSON, Chancellor.—I do not perceive
by the proceedings, that the surplus ever has been divided. The
auditor's report of the 26th of February 1819, makes a surplus of
$1306 4 1/2 to be distributed among the grantees of Charles Penn,
sen'r, deceased; but, who they are, or what proportion each is
entitled to receive, don't appear.

The exhibits filed with the petition of William G. Penn are too
informal, and some of them want even the appearance of proof.
An order, such as requested by the petitioner, don't appear, at pre-
sent, proper to pass. But on application, an order may be obtained
for the auditor to state who are entitled to the surplus and the pro-
portion of each; and then, on the petitioner obtaining their receipts
to the trustee, given in conformity with the act of 1816, ch. 134,
the trustee will be directed to execute a deed. In the mean time,
to prevent the petitioner, (who I presume is entitled to the whole
surplus,) from being compelled to pay money to the trustee, that
he may hereafter plainly appear entitled to, an ordei may pass
directing the trustee to suspend collecting that sum, with the inter-
est, until further order.

Ordered, that the auditor state an account in which he will
designate who, and in what proportion, are entitled to the surplus
money mentioned in his report of the 26th of February, 1819, and
report the same. The report to be made from such evidence as is
in the case; and from such as may be laid before him. As the
petitioner's debt is suspended, and the time will not expire perhaps
before the report of the auditor, it is thought premature to act on
the latter part of the petition.

On the same day the auditor made a report, in which he says,
that it appearing now by the deposition of Adam Darby, filed
yesterday, that William Penn survived Charles Penn, jun'r, he
had, in obedience to the order of to-day, and in conformity with
his report of the 26th February, 1819, stated the within account
with the trustee, for so much of the proceeds of the said estate, as
by the account then reported, was reserved for distribution among