WINDER v. DIFFENDERFFER.

register a bond to the state with surety to be approved by the
Chancellor in the penalty of $30,000, conditioned for the faithful
performance of the trust reposed in him, &c. (b)

After the passing of this decree, Hopkins refused to take upon
himself the trust; in consequence of which the plaintiffs, with the
other devisees, by a petition signed by them, recommended Samuel
Vincent to be appointed.

4th April, 1806.—KILTY, Chancellor.—Nicholas Hopkins, here-
tofore appointed trustee for the purpose of carrying into effect the
will of Charles Rogers, having, in writing, refused to accept the
said trust; it is, therefore, Decreed, on the recommendation of
Sarah Rogers, Alexander and Ann Martin, Mary Lee, and James
P. Boyd for Catherine Rogers, that Samuel Vincent be and he
is hereby appointed trustee for the purposes aforesaid, with all
and singular the powers vested in the former trustee by the ori-
ginal decree: provided, that before he shall act as trustee afore-
said, he shall file in this court, a bond with such penalty and
security as was prescribed for the former trustee by the original
decree.

This trustee gave bond accordingly; after which, Sarah Rogers,
Alexander Martin, and Ann his wife, George Lee, and Mary, his
wife, and Catherine Rogers, as devisees of the testator Charles
Rogers, by their petition stated, that although the affairs of the estate
were then unsettled; yet a division might be very advantageously
made among them, subject to the payment of the debts of the
deceased. Whereupon they prayed, that a partition might be
made, &e.

22d November, 1806.—KILTY, Chancellor.—The Chancellor has
considered this petition, and does not perceive how it can be com-
plied with, consistently with the decree already passed, on which
no report has been made by this trustee. The Chancellor refers
the petitioners to the objections stated by him to the bill, soon after

(b) The ex parte proceeding by petition under the act of 1785, ch. 72, s. 4, applies
only to cases where a testator has left 'real or personal estate to be sold for the pay-
ment of debts, or other purposes,* and there is no one appointed to make the sale;
or he who has been appointed to do so, neglects or refuses to execute such trust
This, it is proper to recollect, is not a case where the testator had left his estate to
be sold for any purpose. And it has been provided, that on the death of a trustee,
having no beneficial interest in the lands, the heir at common law shall succeed to
the trust estate so held; 1831, ch. 311, s. 11.