FENWICK v. LAUGHLIN. 477

in by petition, and have his claim allowed and paid out of the
whole or the surplus of the proceeds of the realty of the deceased

Gumming on the joint and several bond of the deceased and one John Gumming, and at
the request of the trustee the auditor has stated, as part of the claim, the costs of the
deceased as defendant as well as the plaintiff's costs, the whole amount as stated
having been paid by the said trustee; and the said whole amount so stated is admitted
in writing to be a just claim against the deceased's estate by his eldest son, who
admits also that the other obligor John Gumming is insolvent The said claim ia
moreover accompanied by a certificate of John Purviance esq'r, as counsel for the
plaintiff, that no part thereof has been received, except what is credited. No authentic
certificate, however, is produced of the said John Cumming's discharge under the
insolvent law; supposing him to be the principal in the bond on which the judgment
was rendered. No proof that the said John Gumming was security only. And no
affidavit, that the said judgment has been fully discharged.

13th March, 1813.—KILTY, Chancellor.—Considering the report and statements
by the auditor and the evidence adduced, it is ordered, that all the claims, as stated,
be allowed; except the last, being the claim of T. Watkins, which is rejected. The
auditor, in stating the account with the trustee, will allot a share to Roderick War-
field, which will be subject to the ordef of the Chancellor on a further consideration
of his petition, and the arguments in writing urged against it.

After which the case was again submitted, at the instance of the widow to obtain
a portion of the proceeds of sale in lieu of dower.

14th September, 1813.—KILTY, Chancellor.—The widow Ann Spurrier is allowed,
(her age being proved) one eighth part of the net proceeds of the land sold to Gf
Calvert and also of the small tract sold to William C. Spurrier. The claim No. 25
having been paid, according to the former order before that of May 26th 1813, is con-
firmed. The claim No. 24 is rejected. A distribution of the balance to be made as
follows:—The same to be divided into eight parts, one of which is to be reserved for
the decision of the claim of Roderick Warfield. The amount of the other seven
parts to be equally divided between John and Ann Cumming, William C- Spurrier,
John Spurrier, Eliza Spurrier, Richard Spurrier, and Horace Spurrier, Lewis being
stated to have died since the sale, and since the death of Henrietta Warfield. The
payment of the shares of John Spurrier, Eliza Spurrier, Richard Spurrier, and Horace
Spurrier, who are minors, to be made to their mother Ann Spurrier the petitioner,
on the approval by the Chancellor of a bond to be tiled by her with two sufficient
sureties with condition similar to that in guardians' bonds, but reciting the sale, &c.
under the decree of this court; and not before. Interest to be paid on the shares in
proportion as it has been, or may be received. The petition of Roderick Warfield
will be taken up this month on the application of either party.

Proofs having been collected under the order of the 1st of October 1812, to estab-
lish the facts set forth in the petition; it appears by the notes of Mr. A. C. Magruder,
submitted in opposition to the prayer of this petition, that he insisted, that the hus-
band could at most be considered only as a tenant by the courtesy; especially for
that part which had been sold after the death of the wife; that, even if it were to be-
considered as her money, yet it was a mere equitable title which the husband could
not reduce into possession without making a proper settlement (1 Ves. 538, 3 P.
Will. 13.) But, that, in this case, the proceeds must be regarded as land, and
pass as the real estate would have passed had the sales not been made; and it had
been so held, after much consideration, by the county court of Prince George's in